Thursday, March 10, 2011
The Ecstacy And The Agony: Court Of Appeals Of Minnesota Finds Ecstacy Testimony Violated Rule 704 But Was Harmless Error
Federal Rule of Evidence 704 indicates that
(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.
Meanwhile, Minnesota Rule of Evidence 704 merely provides that
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.
As the recent opinion of the Court of Appeals of Minnesota in Haaland v. State, 2011 WL 781229 (Minn.App. 2011), makes clear, however, Minnesota court apply the logic of Rule 704(b).
Monty Haaland was driving his friend J.F.'s Cadillac on July 6, 2007. Moorhead Police Officer Adam Torgerson ran a license-plate check, which revealed that J.F.'s driving privileges were suspended. Because Haaland matched the available description of J.F., Officer Torgerson initiated a traffic stop.
Haaland identified himself with a driver's license that had a clipped corner, explaining that he had misplaced his new license. While talking to Haaland, Officer Torgerson noticed several empty cans of energy drink in the vehicle and an air freshener. He also noticed that Haaland avoided eye contact, seemed unusually nervous, and gave evasive and nonresponsive answers to questions. After a license check confirmed that Haaland had a valid license, Officer Torgerson told Haaland that he was free to go. But because the circumstances of the stop led Officer Torgerson to believe that the vehicle contained drugs, he asked Haaland if he could “talk to him for a minute.” Haaland did not respond orally but did not leave. Officer Torgerson asked Haaland if he could search the vehicle, and Haaland responded that it was not his car. Officer Torgerson asked multiple times, but Haaland did not provide a yes or no answer. Eventually, Haaland consented to a search. Officer Torgerson advised Haaland that he could withdraw his consent at any time, but Haaland did not do so.
Officer Torgerson searched the vehicle with the assistance of Officer Shawn Carlson. During the search, they discovered several items: a small plastic bag of marijuana concealed behind the roof paneling; a large plastic bag of marijuana concealed under the carpeting in the trunk; and a plastic bag with several smaller bags inside containing a total of 288 ecstasy pills concealed in the engine compartment. Haaland was arrested, and a search of his person revealed more than $800 in cash.
Haaland was thereafter charged with first-degree controlled-substance crime (sale); second-degree controlled-substance crime (possession); and fifth-degree controlled-substance crime (sale). At trial, the court allowed the prosecution to present "expert testimony from...police officers as to whether Haaland intended to sell the ecstasy pills found in the vehicle."
After Haaland was convicted, he appealed, claiming, inter alia, that this testimony should have been deemed inadmissible. The Court of Appeals of Minnesota agreed, finding that
Intent is a mixed question of law and fact, and an “expert inference” on the issue of intent is impermissible....
Haaland contends that the officers' testimony was not merely informative but “in the form of a legal conclusion that the drugs were in fact for resale.” We agree. An expert in a controlled-substance case may offer context by testifying as to the quantities of a particular drug that one would possess for personal use or the relevance of the purity or packaging of drugs but may not opine as to the defendant's intent or draw conclusions for the jury.
That said, the court found this error to be harmless, concluding that
Although the record is devoid of evidence as to the typical quantity possessed for personal use, it is unlikely that the jury would have concluded, even without the officers' opinion testimony, that 288 ecstasy pills packaged in multiple small bags were intended for personal use. Moreover, Haaland had more than $800 in cash when he was arrested, which is consistent with drug sales....On this record, we conclude that the error in permitting the officers' conclusory opinions regarding Haaland's intention to sell the ecstasy was harmless and does not warrant postconviction relief.
I think that in every case that I have addressed on this blog in which an appellate court has found a Rule 704 violation, the court has also found harmless error. I'm sure that's not always the case, but I'm guessing that courts usually find harmless error in Rule 704 cases because the impermissible legal conclusion is usually just the cherry on top of the prosecutorial sundae. Maybe one day I will do an empirical analysis of the issue.