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HEAD NOTE S: Gauv in v. Sta te, No. 148, September Term, 2008

EVIDE NCE; M ARY LAND RULE 5-704(b): Md. Rule 5-7 04(b) prohibits expert testimony that the defendant had or did not have the criminal intent that is an element of an offense. This rule, however, does not prohibit expert testimony explaining why an item of eviden ce is con sistent w ith a part icular m ental sta te.

EVIDE NCE; E FFEC T OF E RRO NEOU S RUL ING: An Ap pellant is not e ntitled to a new trial on the grou nd that the trial court erroneously overruled the Appellant's objection to a question that called for an answer prohibited by Md. Rule 5-704(b) if the record shows that the testimony presented after the erroneous ruling did not violate the rule.

IN THE COURT OF APPEALS OF MARYLAND No. 148 September Term, 2008

ALISA MAR IE GAU VIN v. STATE OF MARYLAND

Bell, C.J. Harrell Battaglia Greene Murphy Adkins Barbe ra, JJ.

Opinion by Murphy, J. Bell, C.J., and Greene, J ., Dissent.

Filed: December 18, 2009

At the conclusion of a bench trial in the Circuit Court for Calvert County, Alisa Marie G auvin, A ppellant , was con victe d of driving a motor ve hicle while im paired by a controlled d angerou s substance , and of po ssession of phencyclidin e (PCP) w ith intent to distribute. Appellant concedes that the State's evidence was sufficient to establish that she com mitted those offenses on Dec ember 15 , 2006, but sh e argues tha t 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 sta te an opinio n 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 reason s that fo llow, w e hold th at the tes timony at issue did not vio late M d. Rule 5-704 (b). We sh all theref ore aff irm the ju dgme nts of th e Circu it Cour t.

Background Appellant was the driver and sole occupant of an automobile that was stopped about 7:30 p.m. on D ecember 15, 200 6 by deputies of the Calve rt 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" pa pers. A search of A ppellant'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 a nesthetic an d a narcotic analgesic, an d . . . was una ble to opera te a vehicle safely at the time of this evaluation." The S tate's ca se inclu ded the testimo ny of Firs t Serge ant M atthew McD onoug h. 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 ex pert on the phencyclidine. He has not done it on a prior occasion. This is in fact his first, and I do think tha t 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. McD onough] as an e xpert subject to cross exam ination[:]" 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? Yes, I have. 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 m atter? Yes, I h ave. 2

A Q

A

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 15 th , 2006 was for her personal consumption or for distribution? Yes, I was able to form an opinion. And what is that opinion? That the am --

A Q A

MR. SERIO: Objection, Your Honor, just for the record. THE COU RT: Certainly. Overruled. MR. SERIO: Thank you. [SGT . MCD ONO UGH ]: That the am ount wo uld indicate to me that it w as possesse d with inten t to distribute. I w ould base th at on dif ferent f actors. Accord ing to Sgt. M cDono ugh, (1) a "h and-rolled" cigarette is com monly 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, th e 18 dose s average o f what you w ould use a cigarette for, the going rate going 1 5 to 20 dollars per dipper o r a cigarette laced or saturated with phencyclidine, the money that was als o recovere d, the $250 was all in tw enties. Ther e is obviously liqu id missing f rom these vials. So that w ould indicate to me th at some of it had already b een dis tributed . 3

It's not unco mmon for peop le -- the glove s also help a dd to that opinion because u sers and people that han dle 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. A t the time of h er arrest she w as on her w ay to "the Wa l-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 n o sense," an d that it "finds in looking a t the totality of the circ umstance s that in fact [Appellant] did possess the [PCP] with intent to distribute[.]" Discussion In Cook v. S tate , 84 M d. App . 122, 57 8 A.2d 283 (1 990), 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 4

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 co mes very clos e to an opin ion of the d efendan t'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 nee d for a hard and fast ru le for the accepta nce or rejec tion of exp ert opinion e vidence a s to ultimate facts that may tend to encroach upon the jury's function to determin e 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 usefulnes s 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 an d the jury might not require the exp ert'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 fa cts of th e case. A s to som e matte rs, on the other hand, it m ay be n eces sary f or the expert to express his opinion on the ultimate fact in issue in such a m anner 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 k nowledge is nec essary 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 Sta tes v. Mitche ll, 996 F .2d 419 , 422 (D .C. Cir. 1 993). When the Federal Rules of Evidence (FRE) were enacted in 1974, FRE 704

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provided: OPINION ON ULTIMATE ISSUE Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate iss ue to be de cided by the trier o f 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 provide d in subdiv ision (b), testimo ny in the form of an opinion or inference otherwise admissible is not objectiona ble because it embraces an ultimate issue to be decided b y 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. Althoug h it is clear from the legislative h istory that FRE 704 wa s amend ed 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 s anity: [FRE 704(b)] applies to testimony on all mental co nditions 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 mental state required for defenses like duress, intoxication, extreme emotional disturbance, or 6

entrapment where predisposition is a central issue. Christo pher B . Mue ller & L aird C. K irkpatric k, Eviden ce,

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