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Univ. of South Carolina School of Law

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Friday, January 8, 2010

Draggin' The Line: Court Of Appeals Of Maryland Strains To Find Sergeant's Testimony Did Not Cross Rule 704(b) Line

Like its federal counterpartMaryland Rule of Evidence 5-704(b) states that

An expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may not state an opinion or inference as to whether the defendant had a mental state or condition constituting an element of the crime charged. That issue is for the trier of fact alone. This exception does not apply to an ultimate issue of criminal responsibility.   

In its recent opinion in Gauvin v. State, 2009 WL 4877695 (Md. 2009), the Court of Appeals of Maryland found that it had to address the issue of whether an appellant is entitled to a new trial if the trial court erroneously overruled his objection to a question that called for an answer prohibited by Maryland Rule of Evidence 5-704(b) if the testimony presented after the erroneous ruling did not violate the Rule. I agree with the court that such an appellant is not entitled to a new trial but disagree with the court's conclusion that the answer at issue was consistent with the Rule.

In GauvinAlisa Marie Gauvin was convicted of driving a motor vehicle while impaired by a controlled dangerous substance, and of possession of (PCP) with intent to distribute. Gauvin was initially charged with these crimes after a search of her automobile

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.  

At Gauvin's trial, the prosecution of First Sergeant Matthew McDonough, who reviewed the evidence taken from Gauvin's car. During direct examination of McDonough, the following exchange took place:

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.

After Gauvin was convicted, she appealed, claiming that McDonough's testimony violated Maryland Rule of Evidence 5-704(b). The Court of Appeals of Maryland disagreed, finding that 

courts have drawn the critical distinction between (1) an explicitly stated opinion that the criminal defendant had a particular mental state, and (2) an explanation of why an item of evidence is consistent with a particular mental state.

The former type of testimony is impermissible under Rule 704(b), but the latter type of testimony is permissible. And, according to the Court of Appeals of Maryland, 

In the case at bar, it is clear that the prosecutor's question-"whether or not the PCP that was seized from [Appellant] was for her personal consumption or for distribution?"-sought an opinion that is prohibited by MRE 5-704(b). The Circuit Court should have sustained the objection to this question on the ground that no expert is entitled to express the opinion that the defendant possessed a controlled dangerous substance with the intent to distribute it.

According to the court, however, this was irrelevant because McDonough's answer did not violate Maryland Rule of Evidence 5-704(b). Instead, the court found that

McDonough...never expressed an opinion that "crossed the line" established by MRE 5-704(b)....McDonough "never directly and unequivocally testified to [Appellant's] mental state; he never stated directly that [Appellant] had the intent to distribute."  

Huh? I have no doubt that a question that crosses the Rule 704(b) line can prompt a response that does not. For instance, a prosecutor could ask a police officer whether he believed that the defendant possessed seized drugs with the intent to distribute, and the officer could respond, "I can't say. All I know is that we recovered a lot of drugs from his car." In that case, the question would cross the Rule 704(b) line, but the answer would not.

In Gauvin, however, the question was "[D]o 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?" and the answer was "That the amount would indicate to me that it was possessed with intent to distribute." I can see how the court, by looking at just the answer, could conclude that this was merely a generalized explanation of why the seized drugs were consistent with the mental state of intent to distribute.

But I don't see how the court could divorce question from answer. When viewing the answer in context with the question, it becomes clear that Sergeant McDonough was saying that Gauvin possessed these seized drugs with the intent to distribute. Thus, the answer crossed the Rule 704(b) line, and the Court of Appeals should have reversed.

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/01/md-704gauvin-v-state----a2d------2009-wl-4877695md2009.html

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