Llamera v. Com., 911015

• Citation: 414 S.E.2d 597, 243 Va. 262
• Case Date: February 28, 1992
• Court: Supreme Court of Virginia

Page 597

414 S.E.2d 597

243 Va. 262

Baldomero M. LLAMERA v. COMMONWEALTH of Virginia.

Record No. 911015.

Supreme Court of Virginia.

Feb. 28, 1992.

R. Ramsey Maupin, Alexandria, for appellant.

Michael T. Judge, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: CARRICO, C.J., and COMPTON, STEPHENSON, WHITING, LACY and HASSELL, JJ., and POFF, Senior Justice.

STEPHENSON, Justice.

In this appeal, the accused seeks a reversal of the judgment and a new trial, contending that the trial court erroneously allowed an expert witness to express an opinion upon an ultimate fact in issue.

Tried by a jury, Baldomero M. Llamera was found guilty of possession with intent to distribute cocaine in violation of Code § 18.2-248, and his punishment was fixed at 15 years in the penitentiary and a fine of $30,000. The trial court (the Circuit Court of Arlington County) sentenced Llamera in accordance with the jury's verdict. In an unpublished opinion, dated June 4, 1991, the Court of Appeals affirmed the trial court's judgment, and we awarded Llamera this appeal.

On July 13, 1988, Ray Harr sought to purchase three ounces of cocaine from Peter Kopf. Kopf, in turn, obtained three ounces of cocaine from Llamera at Llamera's store in Arlington County. Kopf then delivered the cocaine to Harr.

Later that day, Kopf was arrested for possession with intent to distribute cocaine and agreed to assist the police by telephoning Llamera and asking him if he could furnish more cocaine. The next day, Kopf spoke with Llamera on the telephone, and Detective Gary Davis of the Arlington County Police Department listened to the conversation. Kopf told Llamera that he had the money he owed Llamera for the Harr transaction. Kopf also asked Llamera if he had more cocaine. Llamera stated that he did.

Following the telephone conversation, Kopf went to Llamera's store wearing a microphone. Davis and other police officers waited outside the store. After Kopf entered the store, he gave Llamera $3,000 as payment for the cocaine purchased the previous day. The police had furnished the money after recording the various bills. Kopf advised Llamera that he would not need the additional cocaine and left the store.

Davis, accompanied by other officers, then entered the store and executed a search warrant. The police found a bag containing a number of separately packaged plastic "baggies" of cocaine totalling approximately 93 grams. The police also found a triple-beam balance scale and the $3,000 that Kopf had delivered to Llamera. After being advised of his constitutional rights, Llamera told Davis that the cocaine was his and that he used and sold cocaine.

At trial, Davis was qualified as an expert in the sale, distribution, marketing, packaging, and effects of narcotics. Davis opined that the cocaine, as packaged, was "packaged that way for distribution." Davis also testified, over Llamera's objection, that the quantity of cocaine found "would suggest that the owner of the cocaine was a person who sold cocaine," and that such a quantity was inconsistent with personal use.

Llamera contends that the trial court committed reversible error by allowing Davis to express his opinion that a person who possesses 93 grams of cocaine is a person who sells cocaine. This testimony, Llamera asserts, was an opinion upon an ultimate issue of fact and, therefore, invaded the province of the jury. The Commonwealth contends, on the other hand, that the opinion evidence was proper. The Commonwealth reasons that Davis merely stated that such a quantity of cocaine would "suggest" that the owner of the cocaine is a seller of cocaine. Thus, the Commonwealth asserts, Davis's use of the word "suggest" was a qualification, not a statement of fact. We do not agree with the Commonwealth.

We consistently have held that the admission of expert opinion upon an ultimate issue of fact is impermissible because it invades the function of the fact finder. Bond v. Commonwealth, 226 Va. 534, 538, 311 S.E.2d 769, 771-72 (1984); Cartera v. Commonwealth, 219 Va. 516, 519, 248 S.E.2d 784, 786 (1978); Webb v. Commonwealth, 204 Va. 24, 33, 129 S.E.2d 22, 29 (1963); Ramsey v. Commonwealth, 200 Va. 245, 249, 105 S.E.2d 155, 158 (1958). In Webb, we stated the following:

[W]hile an expert witness may be permitted to express his opinion relative to the existence or nonexistence of facts not within common knowledge, he cannot give his opinion upon the precise or ultimate fact in issue, which must be left to the jury or the court trying the case without a jury for determination.

204 Va. at 33, 129 S.E.2d at 29 (citations omitted).

In Ramsey, an arson case, we held that the trial court erred in allowing an expert witness to conclude, based upon facts stated in a hypothetical question, that the fire was of incendiary origin. This was an opinion on an ultimate issue to be decided by the jury. 200 Va. at 251, 105 S.E.2d at 159.

In Webb, the accused was charged with embezzlement. We concluded that the trial court erred in permitting an expert witness to testify that the "effect" of two deposit slips prepared by the accused, which contained unrecorded...