Gauvin v. State, 148 September Term, 2008.

• Decision Date: 18 December 2009
• Docket Number: No. 148 September Term, 2008.,148 September Term, 2008.
• Citation: 411 Md. 698,985 A.2d 513
• Parties: Alisa Marie GAUVIN v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

985 A.2d 513

411 Md. 698

Alisa Marie GAUVIN v. STATE of Maryland.

No. 148 September Term, 2008.

Court of Appeals of Maryland.

December 18, 2009.

William Ray Ford, Camp Springs, MD, for Appellant.

Douglas D. Guidorizzi, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Appellee.

ARGUED BEFORE BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS, and BARBERA, JJ.

MURPHY, Judge.

At the conclusion of a bench trial in the Circuit Court for Calvert County, Alisa Marie Gauvin, Appellant, was convicted of driving a motor vehicle while impaired by a controlled dangerous substance, and of possession of phencyclidine (PCP) with intent to distribute. Appellant concedes that the State's evidence was sufficient to establish that she committed those offenses on December 15, 2006, but she argues that she is entitled to a new trial on the "possession with intent" charge. Appellant noted a timely appeal to the Court of Special Appeals, and presented that Court with a single question:

Did the trial court commit prejudicial error when it permitted an expert witness to state an opinion that the defendant/appellant possessed PCP with an intent to distribute?

Prior to argument before a panel of the Court of Special Appeals, this Court issued a writ of certiorari on its own initiative. 406 Md. 743, 962 A.2d 370 (2008). For the reasons that follow, we hold that the testimony at issue did not violate Md. Rule 5-704(b). We shall therefore affirm the judgments of the Circuit Court.

Background

Appellant was the driver and sole occupant of an automobile that was stopped about 7:30 p.m. on December 15, 2006 by deputies of the Calvert County Sheriff's Office. A search of the automobile's front passenger compartment turned up (1) two hand-rolled cigarettes, one of which was partially burnt; (2) two eye droppers containing PCP; (3) two glass bottles containing PCP, (4) a jar containing parsley soaked with PCP, (5) a pair of plastic gloves; and (6) 21 "hand rolling" papers. A search of Appellant's person turned up $240. Appellant was arrested and shortly thereafter subjected to a "drug evaluation" conducted by a "certified Drug Recognition Expert" who testified without objection that, in his opinion, Appellant was "under the combined influence of a dissociative anesthetic and a narcotic analgesic, and ... was unable to operate a vehicle safely at the time of this evaluation."

The State's case included the testimony of First Sergeant Matthew McDonough. When Sgt. McDonough was offered by the State "as an expert in the field of narcotics use, manufacturing, packaging, and methods of distribution," Appellant's trial counsel interposed the following objection:

Your Honor, I'm going to object to him being an expert on the phencyclidine. He has not done it on a prior occasion. This is in fact his first, and I do think that in the field other than phencyclidine, in the packaging and manufacturing I think that he is imminently qualified.

The following transpired after the Circuit Court announced that it would "receive [Sgt. McDonough] as an expert subject to cross examination[:]"

Q Sergeant McDonough, have you had occasion during the course of this case to review the evidence that was seized by Deputy Gray in connection with the arrest of Ms. Gauvin?

A Yes, I have.

Q And have you had the occasion here today to hear the testimony of the witnesses who have come before you today in connection with this matter?

A Yes, I have.

Q And based on your review of the evidence that was seized in this case and based upon your observations regarding the testimony of the witnesses here today, do you have the ability to form an opinion as to whether or not the PCP that was seized from Ms. Gauvin on December 15th, 2006 was for her personal consumption or for distribution?

A Yes, I was able to form an opinion.

Q And what is that opinion?

A That the am—

MR. SERIO: Objection, Your Honor, just for the record.

THE COURT: Certainly. Overruled.

MR. SERIO: Thank you.

[SGT. MCDONOUGH]: That the amount would indicate to me that it was possessed with intent to distribute. I would base that on different factors.

According to Sgt. McDonough, (1) a "hand-rolled" cigarette is commonly used to ingest PCP, and (2) the "18 doses" of PCP seized from the vehicle "is kind of [an] unusually large amount for just a user to be driving around with in a vehicle." His direct examination included the following analysis of the tangible evidence:

This is—in my opinion—again, based on just, you know, the 18 doses average of what you would use a cigarette for, the going rate going 15 to 20 dollars per dipper or a cigarette laced or saturated with phencyclidine, the money that was also recovered, the $250 was all in twenties. There is obviously liquid missing from these vials. So that would indicate to me that some of it had already been distributed. It's not uncommon for people—the gloves also help add to that opinion because users and people that handle PCP are aware that it is transdermal, that it is absorbed through the skin. Also people that—it's common also even amongst crack dealers where it's not transdermal where they say they don't leave fingerprints on any of the things that they have handled. So it serves kind of a dual purpose when you see the rubber gloves there.

Appellant testified as follows. She was 45 years old and had "been smoking PCP since [she] was 18 years old." About noon on December 15, 2006, she "committed the crime of being a user;" but she does "not sell PCP." The PCP seized by the deputies was for her "personal usage." She and her husband are in the "home services" business, and on the day before she was arrested, she had used the rubber gloves while cleaning a customer's home. At the time of her arrest she was on her way to "the Wal-Mart in Prince Frederick," and had "240 dollars on [her]" because she "was doing a minimum type of Christmas shopping that evening."

When announcing its verdicts, the Circuit Court stated that Appellant's testimony "makes no sense," and that it "finds in looking at the totality of the circumstances that in fact [Appellant] did possess the [PCP] with intent to distribute[.]"

Discussion

In Cook v. State, 84 Md.App. 122, 578 A.2d 283 (1990), cert. denied, State v. Cook, 321 Md. 502, 583 A.2d 276 (1991), while holding that a police officer should have been prohibited from, "in effect, stating an opinion that both [appellant Martin Cook and appellant William Darby] were guilty of all charges: as members of an organization using the house in which they were found for the distribution of the cocaine that was in the house," and noting that "[c]ases in other jurisdictions have allowed expert opinion testimony that comes very close to an opinion of the defendant's guilt, particularly in prosecutions for violations of controlled dangers substances laws," the Court of Special Appeals stated:

We do not believe that there is any need for a hard and fast rule for the acceptance or rejection of expert opinion evidence as to ultimate facts that may tend to encroach upon the jury's function to determine guilt or innocence, or the credibility of witnesses, or to resolve contested facts. In each case, the court must decide whether the prejudice to the defendant will outweigh the usefulness to the jury of the opinion sought to be elicited from the expert. That may well depend upon the subject matter under discussion. Some matters may be within the understanding of the average person and the jury might not require the expert's opinion. Or the expert may testify that a certain pattern of conduct or the presence of certain factors is often found in a particular criminal enterprise, leaving it to the jury to apply that expertise to the facts of the case. As to some matters, on the other hand, it may be necessary for the expert to express his opinion on the ultimate fact in issue in such a manner as to come close to an encroachment on the jury's function to resolve contested facts in order for the jury to get the benefit of the expert's knowledge, where such knowledge is necessary for an understanding of the facts and cannot reasonably be imparted in a less prejudicial manner.

Id. at 142, 578 A.2d at 293. Maryland Rule 5-704(b), however, like the Federal Rule of Evidence from which it is derived, establishes "a line that expert witnesses may not cross." United States v. Mitchell, 996 F.2d 419, 422 (D.C.Cir.1993).

When the Federal Rules of Evidence (FRE) were enacted in 1974, FRE 704 provided:

OPINION ON ULTIMATE ISSUE

Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

In 1984, as part of the Insanity Defense Reform Act, Congress amended FRE 704, which now provides:

OPINION ON ULTIMATE ISSUE

(a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

Although it is clear from the legislative history that FRE 704 was amended to restrict expert testimony relating to the sanity of a criminal defendant, Professors Mueller and Kirkpatrick have noted that FRE 704(b) is not restricted to expert testimony on the issue of sanity:

[FRE 704(b)] applies to testimony on all mental conditions in the defendant that amount to elements in the charged crimes or defenses. Thus it bars expert testimony that defendant had or did not have criminal intent that is an element in the offense, or had or did not have the...