State v. Rothlisberger
| Decision Date | 08 September 2006 |
| Docket Number | No. 20040745.,20040745. |
| Citation | 147 P.3d 1176,2006 UT 49 |
| Parties | STATE of Utah, Plaintiff and Petitioner, v. Thomas Kevin ROTHLISBERGER, Defendant and Respondent. |
| Court | Utah Supreme Court |
Mark L. Shurtleff, Att'y Gen., Brett J. Delporto, Asst. Att'y Gen., Salt Lake City, Craig C. Halls, Blanding, for plaintiff.
Barton J. Warren, Salt Lake City, William L. Schlutz, Moab, for defendant.
On Certiorari to the Utah Court of Appeals.
INTRODUCTION
¶ 1 The issue before us is whether testimony as to the quantity of methamphetamine typifying personal use is expert testimony pursuant to rule 702 of the Utah Rules of Evidence and therefore subject to the qualification and advance disclosure requirements associated with that classification of testimony. We conclude that fact or opinion testimony based on specialized knowledge may be admitted only as expert testimony. We further agree with the court of appeals that Chief Kent Adair's testimony at trial regarding personal use quantities of methamphetamine was expert testimony based on his specialized knowledge. Because it is not within the scope of the issue upon which we granted certiorari, we do not address the State's alternative argument that it was harmless error to admit Chief Adair's testimony absent the required thirty days notice. We accordingly affirm the court of appeals' decision.
¶ 2 On September 24, 2002, Respondent Kevin Rothlisberger and Tonya Althoff, respondent in the companion case of State v. Althoff,1 were returning from Arizona when police officer Jim Eberling stopped them because the plates on Althoff's car had expired. Officer Eberling arrested Althoff for driving with a suspended license and conducted a search of the vehicle incident to arrest. On the console between the two front seats, Officer Eberling discovered a small baggy containing a white substance that appeared to be methamphetamine. Consequently, Officer Eberling arrested Rothlisberger for possession of methamphetamine and called Police Chief Kent Adair to assist in a more complete search of the car.
¶ 3 After additional searching, Officer Eberling and Chief Adair discovered a larger baggy containing thirty-two grams of methamphetamine, a gym bag containing a scale and small baggies, and a device for storing and ingesting methamphetamine called a "snort tube," which was covered with a white residue later identified as methamphetamine.
¶ 4 Following their arrests, both Althoff and Rothlisberger were candid with Officer Eberling, admitting, among other things, that they had used methamphetamine earlier in the day, that the "snort tube" belonged to Rothlisberger, and that the gym bag containing the scale and baggies belonged to Althoff. Althoff further claimed that all of the "crystal meth" was hers and that Rothlisberger knew nothing about it.
¶ 5 Rothlisberger and Althoff were charged by information with one count of possession of a controlled substance (methamphetamine) with intent to distribute, a second degree felony, under Utah Code section 58-37-8(1)(a)(iii), and possession of drug paraphernalia, a class B misdemeanor, under Utah Code section 58-37a-5(1). At a preliminary hearing, Officer Eberling testified about the arrest and the significance of the quantity of drugs found in the car. At trial, Chief Adair testified about the arrest, and both Chief Adair and Officer Eberling testified about the significance of the quantity of drugs found in the car. Specifically, Officer Eberling testified at trial on cross-examination by Rothlisberger's trial counsel that the larger baggy of methamphetamine "made [him] think that [Rothlisberger and Althoff] had the [methamphetamine] for sale." Later, Chief Adair testified that methamphetamine is usually packaged in quantities of "[a] quarter or half grams [sic], ... [m]aybe even at the most a gram." At this point, counsel for Althoff and Rothlisberger objected to this line of questioning because it elicited "expert testimony" under rule 702 of the Utah Rules of Evidence and therefore required the State to give the defense thirty days advance notice. The trial court overruled this objection, determining that Chief Adair's testimony was that of a lay witness and thus not subject to the notification requirement. Chief Adair then testified that during undercover investigations officers usually purchase methamphetamine in quantities of "a quarter or a half a gram," and that it is not "common" for someone who had personal quantities of methamphetamine to possess scales. After considering Rothlisberger's posttrial motions on the expert testimony issue, the trial court determined that Chief Adair's testimony was neither lay nor expert opinion testimony, but instead was a statement of fact about his actual experience. Rothlisberger was convicted on all charges, and he timely appealed.
¶ 6 The court of appeals reversed the trial court's judgment and remanded the case for a new trial, holding that Chief Adair's testimony was improperly admitted as lay opinion testimony.2 The court of appeals concluded that the testimony was expert testimony and therefore inadmissible because the State had not properly notified the defense of the testimony in advance of trial.3
¶ 7 We granted certiorari to review whether the court of appeals correctly determined that Chief Adair's testimony as to the quantity of methamphetamine typical of personal use is expert testimony governed by rule 702 of the Utah Rules of Evidence. We have jurisdiction pursuant to Utah Code section 78-2-2(3).
¶ 8 On certiorari, we review the decision of the court of appeals for correctness and examine whether the court of appeals applied the appropriate standard of review in assessing the district court's decision.4 In this case, the court of appeals applied the appropriate standard, reviewing for abuse of discretion the trial court's determination that Chief Adair's testimony was not expert testimony.5
¶ 9 We granted certiorari to consider the narrow issue of whether a police officer gives expert testimony under rule 702 of the Utah Rules of Evidence when, based on his training and experience, he testifies as to the quantities of a controlled substance that typify personal use. Whether testimony is classified as expert testimony under rule 702 is significant in that the party offering such testimony must satisfy various qualification and advance disclosure requirements. The State did not give advance disclosure that Chief Adair would be testifying as an expert in this case. Nevertheless, the State argues that Chief Adair's testimony was admissible as lay testimony under rule 701 or as fact testimony without regard to rule 701 or 702. In the alternative, the State argues that, even if the district court erred in admitting Chief Adair's testimony as lay testimony, any error was harmless because there was other evidence sufficient to show that Rothlisberger had an intent to distribute. We reach only the first argument, however, because the State's harmless error argument is not before us on certiorari.
I. CHIEF ADAIR'S TESTIMONY COULD BE ADMITTED ONLY AS EXPERT TESTIMONY
¶ 10 To determine whether Chief Adair's testimony was expert testimony, we examine Article VII of the Utah Rules of Evidence. Of particular import to our analysis are rules 701 and 702. Rule 701 of the Utah Rules of Evidence provides as follows:
If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.
Rule 702 of the Utah Rules of Evidence provides as follows:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
¶ 11 In this case, we consider three types of testimony: lay fact testimony, lay opinion testimony, and expert testimony. Lay fact testimony, which is not directly addressed by rule 701 or 702, is factual testimony not based on scientific, technical, or other specialized knowledge.6 Lay opinion testimony, which is treated under rule 701, is opinion or inference testimony not based on scientific, technical, or other specialized knowledge.7 Expert testimony, which is treated under rule 702, is opinion or fact testimony based on scientific, technical, or other specialized knowledge.8
¶ 12 With respect to expert testimony under rule 702, the offering party must usually satisfy various qualification and advance disclosure requirements.9 There is no dispute that Chief Adair was qualified to testify as he did. Rothlisberger argues that admission of Chief Adair's testimony was error, however, because the State did not give the requisite advance notice of his testimony.
¶ 13 The State presents three arguments as to why Chief Adair's testimony was admissible without satisfaction of the advance disclosure requirements for expert testimony: (A) Chief Adair's testimony was admissible because it contained only statements of fact, not opinions; (B) Chief Adair's testimony was admissible because it satisfied rule 701's requirements that (1) the testimony be based on the witness's personal perception, and (2) the testimony be helpful to the fact finder; and (C) rule 702 did not apply because Chief Adair's testimony was not based on specialized knowledge. We address each of these arguments in turn.
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