Barkley v. State

CHARLES E. MOYLAN, JR., J. (Retired, Specially Assigned). Unlawfully to possess heroin is a misdemeanor subjecting the possessor to the risk of imprisonment for four years plus a fine of $25,000. Criminal Law Article, § 5-601.

To possess that heroin with the intent to distribute it, however, escalates the crime into a felony with a maximum sentence of twenty years imprisonment. §§ 5-602, 5-608. How then does the State go about proving that specific intent to distribute which is the escalating trigger? The defendant, of course, could tell us, but defendants are seldom so forthright. As an alternative, the State sometimes looks into the mind of the defendant inferentially, with the help of an expert witness.

There is a ¹⁴⁰ discernible line, however, between what the expert is permitted to tell us and what he may not. The burden of this appeal is to determine on which side of that line the testimony of the State’s expert fell. The appellant, Keith S. Barkley, was convicted in the Circuit Court for Wicomico County by a jury, presided over by Judge W. Newton Jackson, III, of 1) possession with intent to distribute heroin; 2) the simple possession of heroin; and 3) the simple possession of cocaine. On appeal he raises two contentions. 1.

That Judge Jackson erroneously permitted a police detective, as an expert witness, to testify as to the appellant’s state of mind; and 2. That Judge Jackson erroneously refused to allow him to discharge his attorney and to proceed pro se. Keeping Alleged Error In Perspective To place the appellant’s primary contention in perspective, we must ask, “Why would we, or why would anyone, care about the appellant’s state of mind?” It is a legitimate contention, but it does affect only one of the three charges for which the appellant was convicted. Even if the contention were to prevail, two of the appellant’s three convictions would remain totally unscathed.

The hard core of basic facts in this case is not in dispute. On March 21, 2013, the appellant was arrested at the intersection of Lehigh Street and North Division Street in Salisbury. The legality of that warrantless arrest is not contested. In the presence of several other officers, Officer Brandon Catón of the Salisbury Police Department searched the appellant as an incident of the arrest.

The Fourth Amendment reasonableness of that search incident is not contested. What that search revealed, moreover, is not factually contested. Officer Catón recovered from the appellant’s right front pocket 53 wax baggies containing a total weight of 10.7 grams of heroin. The 53 baggies were bundled together with a small rubber band.

There was also recovered from the appellant’s ¹⁴¹ person five twenty dollar bills, one ten dollar bill, one five dollar bill, and eight one dollar bills. From the appellant’s left front pocket Officer Catón recovered a glass smoking device containing trace amounts of cocaine on the glass pipe. The evidence of the appellant’s basic guilt is not controverted. As the appellant stood there on that street corner in the presence of three officers, he was indisputably in unlawful possession of both heroin and cocaine.

With respect to the charges of unlawful possession, moreover, the state of the appellant’s mind was immaterial. Crimes of simple possession require only a general intent to possess. A specific intent (either to distribute or to do anything else) is not involved. The appellant was convicted on three charges.

He was convicted for the simple possession of cocaine. That conviction, and the four-year sentence imposed for it, will not be affected by whatever happens on the present contention. The appellant was also convicted for the simple possession of heroin. That conviction will also be unaffected by the present contention.

For sentencing purposes, the conviction for that lesser included offense, of course, was merged into the conviction for the greater inclusive offense of possession of heroin with the intent to distribute. Should the sentence for the greater inclusive offense for any reason be vacated, however, the now merged conviction for simple possession would reemerge from its state of suspended animation and, on remand for resentencing, become the predicate for a sentence in its own right. We will go forward with the contention but with the awareness that it can affect only the conviction for the specific-intent crime of possessing heroin with the intent to distribute it. Thinking About Thinking The intent to distribute is, by definition, an element involving a defendant’s mens rea.

Frequently, however, the proof of that particular mens rea, to wit, that particular specific intent, is established by inference from the surrounding physical circumstances. What then were the surrounding physical circumstances in this case? ¹⁴² Of the 53 baggies of heroin taken from the appellant’s right front pocket, those that were tested by the crime laboratory showed that each contained trace amounts of heroin. The chemist testified that the term “trace amount” refers to anything less than one-tenth of a gram. Trooper First Class Kenneth Moore of the Maryland State Police, who was accepted as an expert on street level identification, sales, packaging, and marketing of narcotic drugs for distribution, testified, without objection, that heroin on the street is “normally” sold “in those little packages in 100th of a gram.” He testified, without objection, that what was in the bags recovered from the appellant was what “you normally purchase.” The cash recovered from the appellant included a $10 bill and five $20 bills.

Trooper Moore testified, without objection, that a baggie of heroin “on average will cost you about $20 a fold.” He testified, without objection, that “oftentimes” drug dealers “utilize 20s and 10s, smaller denominations, there’s not change.” Trooper Moore also testified, without objection, as to the characteristic possessory behavior of a “typical user” of drugs in contrast to the possessory habits of a distributor of drugs. With respect to a “typical user,” he testified, without objection, “Most of the time heroin addicts nowadays don’t normally carry their heroin around with them ... oftentimes you don’t find larger amounts of heroin with a person that is a user. They use what they get and most of the time that’s a bag or two at a time.” He further testified, again without objection, that when making a street level arrest of a “typical user,” the police would find “one to two bags” in the arrestee’s pocket but would not typically find “all that cash in that pocket after they purchased their heroin.” Fact by fact by fact, the prosecution was loading the major premise into the syllogism. The number of baggies of heroin found on the appellant was 53.

Trooper Moore testified, without objection, that “a bundle is what normally a middleman will buy as far as heroin. They are 13 bags.” Four bundles of 13 baggies each would yield a product of 52 baggies, and the appellant had 53. Was there a ¹⁴³ miscount? Had 12 baggies already been sold from a fifth bundle?

Or did one of the bundles come with an unexpected bonus? All this is grist for the jury mill! In any event, all of this testimony by Trooper Moore, unobjected to, dealt with general street level patterns and not with this appellant personally. The stage was set.

Having established the constituent elements without objection, the prosecutor put them all together for an omnibus conclusion. Although the question still meticulously referred not to the appellant personally but only to “an individual with this set of facts” generically, the alarm went off on the defense side of the trial table. [PROSECUTOR]: And combining all of this evidence, the fact that we don’t have any needles or any way of using the heroin, the money in the pocket, the denominations, the number of bags, are you able to form an expert opinion as to whether an individual with this set of facts was engaged or possessing the heroin with the purpose of distributing it? [TROOPER MOORE]: What I’ve heard today based on the amounts that were located, the manner of the bands, the lack of any type of device to utilize the heroin, it’s pretty evident to me just based on my training and experience here in Wicomico County in recent weeks that it was destined to be distributed to persons here in Wicomico County. [DEFENSE COUNSEL]: Objection, Your Honor, move to strike. (Emphasis supplied). At first it appeared that the court was ready to sustain the objection.

If the question was not a question that was ultimately one for the jury, it was at least tantalizingly close. [DEFENSE COUNSEL]: Objection, Your Honor, move to strike. THE COURT: Based on what? [DEFENSE COUNSEL]: Your Honor, that is a question for the jury, that is not a question for this expert. ¹⁴⁴ THE COURT: Which is what, the question? [DEFENSE COUNSEL]: Whether or not he possessed with the intent to distribute. That is the question for the jury. THE COURT: That is an ultimate jury question so the witness’s opinion is to be disregarded by the jury.

Go ahead. The prosecutor immediately threw out the life preserver of the critical distinction between the generic major premise that “any person with this pattern of behavior would be distributing” and the more suspect but unspoken minor premise that “the appellant with this pattern of behavior was distributing.” It was, indeed, a fine line, but a dispositive one. [PROSECUTOR]: I believe if I could clarify for the record, Your Honor, the witness’s testimony was whether this particular fact pattern would be indicative of an individual whose intent was to distribute heroin, he was not testifying as to the Defendant’s particular mindset. THE COURT: As an individual in general as opposed to this particular Defendant? [PROSECUTOR]: Correct. THE COURT: All right, with that understanding the objection is overruled.

(Emphasis supplied). This all may be a tempest in a teapot. The factual premises had all been established without objection. Trooper Moore had laid out the characteristic behavior of a distributor as contrasted to the more innocuous behavior of a mere user.

The jury was readily capable, without spoonfeeding, of completing the syllogism for itself. The obvious syllogism before the jury was, stating it simplistically: All persons who exhibited such behavior probably intended to distribute. The appellant is a person who exhibited such behavior. ERGO: The appellant probably intended to distribute. ¹⁴⁵ The conclusion is as obvious as it is valid.

Even without benefit of formal terminology, that is the way the human mind works. Less pedantically, the jury verdict may simply have been the drawing of an irresistible inference. “If it looks like a duck and walks like a duck and quacks like a duck, it’s a duck.” It is a classic inference. It is permissible, it is irresistible, and it is obvious. We are persuaded beyond all reasonable doubt, therefore, that the jurors would have drawn this inference, or would validly have reached this conclusion, for themselves even if no one else, from the witness stand or in closing argument, had articulated it for them.

As this Court observed in Cirincione v. State, 75 Md.App. 166, 181-82 , 540 A.2d 1151 (1988): In terms of its helpfulness to the jury, we find the distinction between an opinion as to a predicate fact that inevitably yields the ultimate fact and an opinion as to the ultimate fact itself to be a distinction without a difference. We will not hypothesize a jury so dense that it would be helped by the latter opinion but would be left adrift by the former. We will not, however, leap forward to an alternative holding of hypothetical harmless error on this contention because we adamantly believe that there was no error. Expert Opinions and Ultimate Issues Our bottom-line decision that Judge Jackson was not in error in overruling the appellant’s objection to Trooper Moore’s testimony is easy.

Explaining how we get to that decision is another matter entirely. Involved is the incredibly dense subject of expert opinions and ultimate issues. At the most fundamental level, the problem is that the law has been attempting, with only limited success, to create a general rule to cover a broad congeries of situations that defy generalization. Under the pre-1994 regime of Maryland’s common law of evidence, the rule had almost accidentally or haphazardly emerged that an expert witness could not give an opinion on an issue that was an ultimate issue for decision by a jury. ¹⁴⁶ Bentley, Shriver & Co. v. Edwards, 100 Md. 652, 665 , 60 A. 283 (1905); McClees v. Cohen, 158 Md. 60, 68 , 148 A. 124 (1930).

The notion was that the expert should not be permitted to invade the province of the jury. The problem with the rule was that frequently it did not work. There arose so many ad hoc exceptions and modifications to the rule that the end product was chaotic. In 6 Lynn McLain, Maryland Evidence, § 704:1 at 971-72 (3d ed.2013), Professor McLain describes the pre-1994 pandemonium: The common law decisions, in excluding certain unhelpful, superfluous opinion testimony, often justified their rulings by stating that opinions on the ultimate issue to be decided by the jury in a case were inadmissible.

This approach led to the creation of artificial distinctions and exceptions, where circumvention of the “rule” of inadmissibility of opinions on ultimate issues was necessary, for example, with regard to opinions regarding mental capacity and sanity, permanent disability, and forgery. (Emphasis supplied). When the Court of Appeals adopted the Maryland Rules of Evidence in 1994, it included Maryland Rule 5-704(a), which is identical to Federal Rule of Evidence 704(a). It provides: (a) In General.

Except as provided in section (b) of this Rule, testimony in the form of an opinion or inference otherwise admissible is not objectionable merely because it embraces an ultimate issue to be decided by the trier of fact. The new rule effectively abrogated the former prohibition. Professor McLain, § 704:l(b) at 973, both described and commended the change: Modern Maryland case law, codified in Md. Rule 5-70U(a), more wisely states that the fact that a witness’s opinion addresses an ultimate issue as to which the judge or jury must reach a conclusion does not preclude automatically the witness’s testifying to it. Rather, the question, as with regard to any opinion testimony, will be whether the witness’s opinion is rationally based and would be helpful ¹⁴⁷ to the fact-finder.

If both criteria are met, the opinion will be admissible under Md. Rule 5-701 as to a lay witness and under Md. Rule 5-702 as to an expert witness. (Emphasis supplied). The exception to that amelioration is subsection (b). The exception applies to criminal cases only.

Rule 5-704(b) provides: (b) Opinion on Mental State or Condition. 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.

(Emphasis supplied). The final sentence makes it clear that the prohibition of the earlier limitation on expert opinions does not apply to cases raising the issue of insanity or other aspects of criminal responsibility. The thing that is still prohibited is “an opinion ... as to whether the defendant had a mental state or condition constituting an element of the crime charged.” It is on Rule 5-704(b) that the appellant exclusively relies. He charges that the court erroneously received in evidence “an expert’s opinion that Appellant possessed the heroin with the intent to distribute.” One of the issues, of course, is that of whether the expert ever actually expressed an opinion that the appellant possessed an intent to distribute.

The appellant does, in that regard, acknowledge a chink in his armor. He does not assert (on the facts of this case, he could not) that the expert opinion ever explicitly called him out by name or ever expressly stated that this appellant personally had an intent to distribute. He accused the expert opinion, more obliquely, of supplying the predicate from which an inference of the appellant’s intent to distribute would necessarily be drawn. The appellant’s argument is: ¹⁴⁸ The prosecutor cannot shield that this question was directed at Appellant’s state of mind by proffering that the question was “whether this particular fact pattern would be indicative of an individual whose intent was to distribute heroin” rather than focusing on the specific intent of Appellant.

Simply put, there was no other individual discussed during trial “with this set of facts.” The State alleged at trial only that Appellant was involved in “this particular fact pattern.” While the State attempted to disguise the question in the form of a hypothetical, the question was directed at the facts of this case and this case dealt only with Appellant. The State effectively inquired and received testimony about Appellant’s mental state. This testimony crossed this line and should have been excluded. (Emphasis supplied).

The appellant’s drop-back position necessarily is that the expert’s suggesting his intent to distribute indirectly as part of a two-step process is tantamount to ascribing that intent to distribute to him directly as part of a one-step process. The argument is that if the appellant is the only person on trial, everything in the State’s case is necessarily about him. He claims that the expert opinion rule protects him from ricochets as well as from direct hits. As we turn to the caselaw interpreting Rule 5 — 704(b), that is precisely the issue we must decide.

Gauvin v. State For better or for worse, the appellant relies on Gauvin v. State, 411 Md. 698 , 985 A.2d 513 (2009). So, indeed, does the State. In Gauvin the critical conviction was for the possession of phencyclidine (PCP) with the intent to distribute. The defendant’s actual possession of the PCP was not disputed.

The key issue in the Gauvin case, as in this case, concerned the State’s proof of the specific intent to distribute. The defendant’s contention was that the court “permitted an expert witness to state an opinion that the defendant/appellant possessed PCP with an intent to distribute.” 411 Md. at 700 , 985 A.2d 513 . The defendant’s argument was that the ex ¹⁴⁹ pert’s testimony was a forbidden opinion about his “mental state or condition constituting an element of the crime charged” in direct contravention of Rule 5 — 704(b). Although Judge Murphy’s opinion for the Court of Appeals affirmed the conviction and held that “the testimony at issue did not violate Rule 5-704(b),” 411 Md. at 700 , 985 A.2d 513 , it did, in passing, give the appellant here a small moral victory, around which he now builds his entire argument.

The Gauvin opinion observed that the question put to the expert by the prosecuting attorney did violate Rule 5-704(b), although, more significantly, the ultimate answer given by the expert did not. The offending 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 15, 2006 was for her personal consumption or for distribution? 411 Md. at 701-02 , 985 A.2d 513 (emphasis supplied). With respect to that question itself, the Court of Appeals was firm in its disapproval. 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. 411 Md. at 710-11 , 985 A.2d 513 (emphasis supplied). In redeeming contrast to the offending question, however, the less personally focused response of the expert witness was based on neutral physical circumstances. [T]he amount would indicate to me that it was possessed with intent to distribute. I would base that on different factors. 411 Md. at 702 , 985 A.2d 513 (emphasis supplied). The expert went on immediately to explain that “a ‘hand-rolled’ cigarette is commonly used to ingest PCP” and that “the 18 doses of ¹⁵⁰ PCP seized from the vehicle ‘is kind of [an] unusually large amount for just a user to be driving around with in a vehicle.’ ” He proceeded to detail his analysis of the tangible evidence.

This is — in my opinion — again, based on just, you know, the 18 doses average of what you would use a cigarette for, the going rate going 15 to 20 dollars per dipper or a cigarette laced or saturated with phencyclidine, the money that was also recovered, the $250 was all in twenties. There is obviously liquid missing from these vials. So that would indicate to me that some of it had already been distributed. It’s not uncommon for people — the gloves also help add to that opinion because users and people that handle 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. Id. (emphasis supplied).

Judge Murphy explained that the expert witness never “crossed the line” established by Rule 5-704(b) and that his opinion was, therefore, admissible. Sgt. McDonough, however, never expressed an opinion that “crossed the line” established by MRE 5-70](b). ... Sgt.

McDonough “never directly and unequivocally testified to [Appellant’s] mental state; he never stated directly that [Appellant] had the intent to distribute. ” ... Sgt. McDon-ough’s opinion was based upon his “knowledge of common practices in the drug trade, rather than on some special familiarity with the workings of [Appellant’s] mind.” No unfair prejudice occurs when an erroneous evidentiary ruling results in the introduction of admissible evidence. 411 Md. at 711 , 985 A.2d 513 (emphasis supplied). The Court of Appeals made it clear, moreover, that it is the actual opinion rendered by the expert and not the antecedent question that is controlling in a Rule 5-704(b) analysis. ¹⁵¹ [AJlthough the prosecutor’s question “strayed from the track” established by MRE 5 — 704(b), Sgt.

McDonough’s “answer did not. ” Under these circumstances, Appellant is not entitled to a new trial on the ground that Sgt. McDon-ough expressed an opinion that should have been excluded under Md. Rule 5-704(b). 411 Md. at 713 , 985 A.2d 513 (emphasis supplied). Before turning our attention to the quality of the expert opinion given by the expert in Gauvin , it behooves us to note that the affirmance of the conviction in the case now before us does not depend on Gauvin’s distinction between the question and the answer. In Gauvin the offending question focused in very personally on “the PCP that was seized from Ms. Gau-vin ” and asked whether the expert thought it was “for her personal consumption or for distribution.” 411 Md. at 701-02 , 985 A.2d 513 (emphasis supplied).

In the present case, by contrast, the question, after listing the physical factors developed by the police, sought an opinion about “whether an individual with this set of facts” would have “the purpose of distributing?” “An individual with this set of facts” could be anybody. The question was appropriately generic. With respect to the expert opinion, the Gauvin opinion focused on 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. 411 Md. at 708 , 985 A.2d 513 . An admissible expert opinion may come close to a defendant’s state of mind or specific intent and may strongly suggest the answer to that ultimate issue but it stays deftly one step back from the ultimate answer.

It brings to mind the classical philosophical problem of how progressively closer one can approach toward a point without getting there. Unlike in horseshoes, close does not count. Gauvin quoted with approval from Christopher B. Mueller & Laird C. Kirkpatrick, Evidence, § 7.13 at 670 (4th ed.2009): ¹⁵² Expert testimony at one remove from such ultimate issues as intent may be admitted even though it indirectly supports a conclusion or suggests an inference on some ultimate issue. Thus testimony describing typical patterns of organized crimes or conspiracies does not violate FRE 70Jp(b) even though it provides evidence that persuades a jury, in light of what defendant and others are shown to have done, that the requisite intent existed. 411 Md. at 708 , 985 A.2d 513 (emphasis supplied).

Gauvin relied heavily on the two federal cases of United States v. Lipscomb, 14 F.3d 1236 (7th Cir.1994), and United States v. Gonzales, 307 F.3d 906 (9th Cir.2002). In Lipscomb , three law enforcement officers offered expert opinions that the cocaine seized from the defendant’s person was “for street level distribution.” The Seventh Circuit, 14 F.3d at 1242-43 , explained why such expert opinion did not run afoul of Federal Rule of Evidence 704(b). [W]e conclude that when a law enforcement official states an opinion about the criminal nature of a defendant’s activities, such testimony should not be excluded under Rule 704(b) as long as it is made clear, either by the court expressly or in the nature of the examination, that the opinion is based on the expert’s knowledge of common criminal practices, and not on some special knowledge of the defendant’s mental processes. Relevant in this regard, though not determinative, is the degree to which the expert refers specifically to the “intent” of the defendant, ... for this may indeed suggest, improperly, that the opinion is based on some special knowledge of the defendant’s mental processes. In this case, each of the challenged opinions was immediately followed by a precise explanation of the grounds for the opinion, and the grounds cited made it clear that the officers were relying on their knowledge of common practices in the drug trade, rather than on some special familiarity with the workings of Lipscomb’s mind. 411 Md. at 708-09 , 985 A.2d 513 (emphasis supplied).

In the Gonzales case, also relied on by Gauvin , the critical issue was proof of the specific intent to distribute narcotics. A ¹⁵³ DEA agent, qualified as an expert in drug distribution and possession, “was asked whether the particular amount of drugs found on a person indicated whether such an individual possessed the drugs for personal use or for distribution.” 307 F.3d at 911 . The defendant’s claim on appeal was indistinguishable from the one now before us. On appeal, Gonzales argues that the district court erred in admitting Heald’s expert testimony because it consisted of an opinion about Gonzalez’s mental state, in violation of Rule 704(b) of the Federal Rules of Evidence.

Id. The Gonzales opinion, quoted with approval by Gauvin, 411