Robinson v. State

RAKER, Judge. In this case, Petitioner Kenneth Robinson was found guilty by a jury of possession of cocaine in violation of Maryland ¹⁰⁸ Code (1957, 1996 Repl.Vol., 1997 Supp.) Article 27, § 287(a). 1 Following his arrest, Robinson ingested a substance alleged to be cocaine, and therefore it was not available for chemical analysis. We resolve two issues presented in this case: (1) whether the State must introduce the results of a chemical analysis to prove beyond a reasonable doubt the composition of that substance; and (2) whether the trial court erred by allowing the introduction of lay opinion testimony that the disputed substance was in fact crack cocaine. We conclude that proof based on scientific analysis or expert testimony is not required to prove the nature of a controlled substance, and that the State may base a conviction for the possession of a controlled dangerous substance solely upon circumstantial evidence.

The lay opinion testimony in this case, however, was inadmissible because that evidence was not competent for the purpose for which it was offered. I. On November 20, 1994, Trooper Donald Harrison of the Maryland State Police was patrolling Route 4, just north of Leonardtown, Maryland. At 11:30 p.m., Trooper Harrison stopped an automobile for exceeding the posted speed limit. Robinson was seated in the front passenger seat.

As Trooper Harrison approached the automobile, he observed Robinson making “suspicious and furtive movements toward the floorboard of the vehicle.” When the driver of the car was unable to produce either a driver’s license or a registration card, Trooper Harrison ordered both the driver and Robinson out of the automobile. A subsequent “wanted check” revealed an outstanding parole retake warrant for Robinson. During a search of Robinson at the side of the road, the trooper seized a plastic container concealed in Robinson’s sock. Inside the container was a transparent plastic baggie holding eight rocks that Trooper Harrison believed to be crack cocaine.

The ¹⁰⁹ trooper arrested Robinson and transported him to the Leon-ardtown police barracks. At the Leonardtown barracks, Robinson was handcuffed to the desk of Trooper Harrison. The trooper then placed the plastic baggie containing the suspected crack cocaine on his desk. Accommodating Robinson’s request to use the bathroom, Trooper Harrison removed the handcuffs, allowing Robinson to be escorted to and from the bathroom by Trooper Mark Karwaeki.

Upon his return from the bathroom, Robinson suddenly ran away from Karwaeki and hurled himself at Trooper Harrison. Pinning Trooper Harrison against a wall, Robinson initially punched and kicked Harrison. Moments later, Robinson began to repeatedly punch and kick Trooper Karwaeki as well. During the fracas, Robinson seized the baggie containing the eight rocks and swallowed it.

Shortly thereafter, Robinson was taken to St. Mary’s Hospital, where he remained for several days. Neither the rocks nor the baggie were ever recovered. As a result of this incident, Robinson was charged by criminal information with, inter alia, possession of cocaine in violation of Article 27, § 287(a), possession of cocaine with intent to distribute in violation of § 286(a), and two counts of common law battery. Robinson was subsequently tried before a jury in the Circuit Court for St. Mary’s County. 2 Since Robinson ingested the suspected cocaine, neither the substance itself nor a chemical analysis was introduced at trial.

The State’s proof as to the identity of the chemical composition of the suspected contraband was based primarily on the visual identification of the substance by Troopers Harrison and Karwaeki. Trooper Harrison testified that he got a “good look” at the baggie and its contents when it was on his desk. He described the substance he seized from Robinson as eight crystalline rocks with jagged edges, creamy-yellowish in color, ¹¹⁰ with each rock between an eighth of an inch and a quarter of an inch in length. 3 The prosecutor then asked Trooper Harrison to give his opinion as to the identity of the substance that he seized from Robinson. Defense counsel objected on the grounds that Harrison was not an expert in narcotics identification, and therefore was not qualified to identify the contraband based upon sight alone.

The trial judge overruled the objection and Trooper Harrison testified that the suspected contraband seized from Robinson was, in his opinion, crack cocaine. 4 The State then called Trooper Karwacki to the witness stand. Karwacki testified that he had handled and observed the suspected contraband at the Leonardtown barracks. Specifically, he stated that he removed the transparent baggie from its plastic container and “could see the eight pieces clearly.” After the State established Karwacki’s credentials, 5 ¹¹¹ he was also permitted, over the objection of defense counsel, to offer his opinion that the substance seized from Robinson was crack cocaine. 6 The jury convicted Robinson of possession of crack cocaine and two counts of battery. The trial judge sentenced Robinson to eight years incarceration for the battery of Trooper Harrison, four years incarceration for the cocaine possession, to be served consecutive to the battery of Trooper Harrison, and eight years incarceration, suspended, for the battery of Trooper Karwacki.

Robinson noted a timely appeal to the Court of Special Appeals. In an unreported opinion, the intermediate appellate court affirmed Robinson’s convictions. 7 We then granted Robinson’s petition for certiorari. Before this Court, Robinson seeks to reverse his conviction for possession of cocaine on a number of grounds. Initially, he argues that proof of a controlled substance may be established only through chemical analysis.

Robinson also contends that the testimony of Troopers Harrison and Karwacki was inadmissible because, after only a visual inspection of the alleged contraband, they could not rationally conclude that the substance was in fact crack cocaine. In contrast, the State argues that the trial court properly admitted the lay testimony of Troopers Harrison and Karwacki because their training and experience assisted the jury in determining whether the sus ¹¹² pected cocaine was in fact a controlled substance. Thus, reasons the State, any infirmity in this visual identification by the troopers goes to the weight of that testimony, and not to its admissibility.

II

Robinson argues in the first instance that proof of the chemical composition of the alleged controlled substance may be established solely by chemical analysis. We disagree. The result advocated by Robinson would deviate from a fundamental evidentiary principle: Circumstantial evidence is in no manner intrinsically inferior to direct evidence. 8 State v. Gray, 344 Md. 417 , 424 n. 5, 687 A.2d 660 , 664 n. 5, cert. granted, — U.S. —, 117 S.Ct. 2452 , 138 L.Ed.2d 210 (1997); Mangum v. State, 342 Md. 392, 398-400 , 676 A.2d 80, 82-84 (1996). “ ‘[W]hether direct evidence or circumstantial evidence is more trustworthy and probative depends upon the particular facts of the case and no generalizations realistically can be made that one class of evidence is per se more reliable than is the other class of evidence.’ ” Hebron v. State, 331 Md. 219, 225 , 627 A.2d 1029, 1032 (1993) (quoting State v. Gosby, 85 Wash.2d 758 , 539 P.2d 680, 685 (1975)). In a given case, circumstantial evidence may be more persuasive than direct evidence.

E.g., Janifer v. Jandebeur, 551 A.2d 1351, 1352 (D.C.1989) (citing Michalic v. Cleveland Tankers, Inc., ¹¹³ 364 U.S. 325, 330 , 81 S.Ct. 6, 11 , 5 L.Ed.2d 20 (1960)). We note that the great weight of authority from other state and federal courts recognizes that circumstantial or indirect evidence may be sufficient, standing alone, to establish the nature of a controlled substance. United States v. Wright, 16 F.3d 1429, 1439 (6th Cir.), cert. denied, 512 U.S. 1243 , 114 S.Ct. 2759 , 129 L.Ed.2d 874 (1994); United States v. Kelly, 14 F.3d 1169, 1174 (7th Cir.1994); Griffin v. Spratt, 969 F.2d 16 , 22 n. 2 (3rd Cir.1992); United States v. Walters, 904 F.2d 765, 770 (1st Cir.1990); United States v. Westbrook, 896 F.2d 330, 336 (8th Cir.1990); United States v. Sanchez DeFundora, 893 F.2d 1173, 1175 (10th Cir.), cert. denied, 495 U.S. 939 , 110 S.Ct. 2190 , 109 L.Ed.2d 518 (1990); United States v. Brown, 887 F.2d 537, 542 (5th Cir.1989); United States v. Harrell, 737 F.2d 971, 978 (11th Cir.1984), cert. denied, 470 U.S. 1027 , 105 S.Ct. 1392 , 84 L.Ed.2d 781 (1985); United States v. Dolan, 544 F.2d 1219, 1221 (4th Cir.1976); Urrutia v. State, 924 P.2d 965, 968 (Wyo.1996); In re Interest of C.T., 521 N.W.2d 754, 757-58 (Iowa 1994); Bernard v. United States, 575 A.2d 1191, 1193 (D.C.1990); State v. Lesac, 231 Neb. 718 , 437 N.W.2d 517, 519 (1989); Chancey v. State, 256 Ga. 415 , 349 S.E.2d 717, 725 (1986), cert. denied, 481 U.S. 1029 , 107 S.Ct. 1954 , 95 L.Ed.2d 527 (1987); In re Reismiller, 101 Wash.2d 291 , 678 P.2d 323, 325 (1984); State v. Starr, 204 Mont. 210 , 664 P.2d 893, 895-96 (1983); People v. Edwards, 198 Colo. 52 , 598 P.2d 126, 128 (1979); Com. v. Myers, 452 Pa.Super. 299 , 681 A.2d 1348 , 1353 n. 5 (1996), cert. granted, 694 A.2d 620 (Pa.1997); State v. Anderson, 176 Wis.2d 196 , 500 N.W.2d 328, 330-31 (App.1993); State v. Northrup, 16 Kan.App.2d 443 , 825 P.2d 174, 177-78 (1992) (citing cases); Myrick v. Com., 13 Va.App. 333 , 412 S.E.2d 176, 179-80 (1991); Swain v. State, 805 P.2d 684, 685-86 (Okla.Crim.App.1991). We hold that the nature of a suspected controlled, dangerous substance, like any other fact in a criminal case, may be proven by circumstantial evidence. 9 See Weller v. ¹¹⁴ State, 150 Md. 278, 282 , 132 A. 624, 625-26 (1926) (upholding the admission of lay opinion testimony “that the distillation smelled like ‘moonshine whiskey1 and ‘moonshine’ ”).

While we need not define today the precise limits of our holding, we observe that a contrary decision would bar the State from proving the identity of a controlled substance beyond a reasonable doubt every time the suspected substance is not recovered. Moreover, “ ‘[i]llegal drugs will often be unavailable for scientific analysis because their nature is to be ¹¹⁵ consumed.’ ” Bernard, 575 A.2d at 1194 (quoting United States v. Schrock, 855 F.2d 327, 334 (6th Cir.1988)); see Lobatos v. State, 875 P.2d 716, 720 (Wyo.1994). As we said in Mangum , neither policy nor logic supports any evidentiary distinction between direct and circumstantial evidence. Mangum, 342 Md. at 398 , 676 A.2d at 83 .

III

A. Recognizing the prevailing view that the identity of a substance may be proven by circumstantial evidence, Robinson argues in the alternative that the opinion testimony of Troopers Harrison and Karwacki was inadmissible because a lay witness could not rationally identify a substance as crack cocaine based upon visual inspection alone. We agree. In distinguishing between opinion testimony, as opposed to testimony detailing solely factual information, this Court has previously defined [a]n opinion [as] a belief based upon inferences drawn from ascertained or assumed facts, the soundness of which depends both on the truth of the premises and upon the knowledge, skill, and intelligence of the witness, and is to be distinguished from positive knowledge based upon the direct evidence of the senses. Baltimore C. & A. Rwy.

Co. v. Turner, 152 Md. 216, 225 , 136 A. 609, 612 (1927). This distinction between testimony conveying opinion, and testimony merely relating fact, was a product of the common law system of proof, and its exacting “insistence upon the most reliable sources of information.” 1 McCormick on Evidence § 10, at 37 (J. Strong ed., 4th ed.1992). Born of this insistence upon reliability was the evidentiary rule that generally “witnesses are not allowed to testify to their opinions or conclusions on material matters, but must [only] state facts within their knowledge relevant1 to the issues.” 2 Underhill’s Criminal Evidence § 305, at 763 (P. Herrick rev., 5th ed.1956) (footnote omitted); see 2 Spenc ¹¹⁶ er A. Gard, Jones on Evidence § 14:1, at 578 (6th ed. 1972) (“[W]itnesses who do not qualify as experts shall testify to facts without stating their impressions, conclusions or opinions.”) (footnote omitted). The parties have not cited, nor has our independent research found, any case decided by this Court which squarely embraced the sweeping proposition that opinion testimony was disfavored, and thus presumptively inadmissible, 10 although we have alluded to this general common law principle on numerous occasions.

See, e.g., Hughes v. Averza, 223 Md. 12, 17 , 161 A.2d 671, 675 (1960) (“[T]he witness should not have been asked about her opinion or impression but only concerning facts and circumstances of which she was competent to speak.”); Flickinger v. Wagner, 46 Md. 580, 600 (1877) (“The answer ... would have been nothing more or less than the opinion of the witness, and therefore inadmissible.”); Law v. Scott, 5 H. & J. 438, 458-59 (Md.1822) (“This is not [testimony] to facts only, resting in the immediate knowledge and recollection of the witness, but is a plain expression of his opinion ..., and we think ... wholly inadmissible.”). Nonetheless, this Court has upheld the admission of lay opinion testimony with such frequency 11 that one commentator has ¹¹⁷ observed “[t]here are so many exceptions that the general rule seems to be swallowed by them.” Joseph F. Murphy, Jr., Maryland Evidence Handbook § 603, at 328 (2nd ed.1993). Finally, our predecessors reasoned, on occasion, that certain opinions, by virtue of being testified to in court, can be transformed into facts. See E.F. Enoch Co. v. Johnson, 183 Md. 326, 329 , 37 A.2d 901, 903 (1944) (“He stated he saw ‘an automobile going east.’ This was not a conclusion---- And if it be conceded that the answer contained conclusions, it, nevertheless, contained the quoted statement to which the witness testified as a fact.”); Livingston v. Safe Deposit & Trust Co., 157 Md. 492, 499-500 , 146 A. 432, 435 (1929) (“Such a conclusion, while called an opinion, has been described as ‘knowledge at shorthand,’ and has more of the elements of direct than of opinion evidence____ [I]t is regarded as a fact.”).

In analyzing the admissibility of lay opinion testimony, writing for this Court almost a century ago, Judge (later Chief Judge) Boyd made the cogent observation that “[i]t is sometimes difficult to draw the line between what is and is not admissible from a non-expert, when his opinion is offered in evidence.” 12 Tucker v. State ex rel. Johnson, 89 Md. 471, 477 , ¹¹⁸ 43 A. 778, 780 (1899). We need not enter this legal labyrinth, however, because the admissibility of lay opinion testimony is now governed by Maryland Rule 5-701: If the witness is not testifying as an expert, the "witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue. Md. Rule 5-701.

Except for minor stylistic changes, this rule is identical to Federal Rule of Evidence 701, and reflects the modern trend away from the traditional common law tenet that a lay witness may not express an opinion. McCormick, supra, § 11, at 43-44. This retreat from the common law rule of inadmissibility of lay opinion testimony has led several courts and commentators to conclude that, although the burden of proof as to admissibility is on the proponent of evidence, the “modern trend favors admissibility of opinion testimony.” Virgin Islands v. Knight, 989 F.2d 619, 630 (3rd Cir.) (quotation marks and citations omitted), cert. denied, 510 U.S. 994 , 114 S.Ct. 556 , 126 L.Ed.2d 457 (1993); see MCI Telecommunications Corp. v. Wanzer, 897 F.2d 703, 706 (4th Cir.1990) (quoting Teen-Ed, Inc. v. Kimball International, Inc., 620 F.2d 399, 403 (3rd Cir.1980); citing 3 Jack B. Weinstein, Evidence § 701[02], at 701-9 & 701-17 (1978)); McCormick, supra, § 11, at 44-45. A trial court should, within the sound exercise of its discretion, admit lay opinion testimony if such testimony is derived from first-hand knowledge; is rationally connected to the underlying facts; is helpful to the trier of fact; and is not barred by any other rule of evidence.

See Bruce v. State, 328 Md. 594, 630 , 616 A.2d 392, 410 (1992), cert. denied, 508 U.S. 963 , 113 S.Ct. 2936 , 124 L.Ed.2d 686 (1993); Stebbing v. State, 299 Md. 331, 350-51 , 473 A.2d 903, 912 , cert. denied, 469 U.S. 900 , 105 S.Ct. 276 , 83 L.Ed.2d 212 (1984); see also ¹¹⁹ United States v. Carlock, 806 F.2d 535, 551 (5th Cir.1986), cert. denied, 480 U.S. 949 , 107 S.Ct. 1611 , 94 L.Ed.2d 796 (1987). “[L]ay opinions which are helpful to the trier of fact in that they have incremental probative value beyond that of the underlying facts will be permitted.” 13 Lynn McLain, Maryland Evidence § 701.1, at 198 (1987). Such testimony generally falls into one of two categories. Edward J. Imwinkelried, Evidentiary Foundations 241 (3rd ed.1995). The first category is lay opinion testimony where it is impossible, difficult, or inefficient to verbalize or communicate the underlying data observed by the witness.

This Court long ago recognized the principle that relevant lay opinion testimony should be admitted in such circumstances, explaining that: There are ... cases where all the facts cannot be detailed to the jury, which are necessary for a proper understanding of the subject. In speaking of a precipice, or of the condition of a road which is ... dangerous for travel, or of numbers, weights, heights, distances, and other like subjects, it would rarely be practicable for a witness to give the jury a satisfactory idea of the things described, without stating his opinion of them. Baltimore & Yorktown T. Rd. v. Leonhardt, 66 Md. 70, 78 , 5 A. 346, 351 (1886). In other words, where the facts cannot otherwise be adequately presented or described to the jury, lay opinion testimony should be admitted.

United States v. Yazzie, 976 F.2d 1252, 1255 (9th Cir.1992) (quoting United States v. Sheet, 665 F.2d 983, 985 (9th Cir.1982)). For instance, in State v. Jones, 311 Md. 23 , 532 A.2d 169 (1987), we upheld the admission of a lay opinion that an automobile was “trying to catch up with” a police car. Id. at 32-33 , 532 A.2d at 173-74 . Because it would have been difficult or impossible ¹²⁰ for the witness in that case to fully convey this impression to the jury merely by reciting the underlying facts observed by that witness, the opinion was properly admitted.

The second broad category of lay opinion testimony is where “the lay trier of fact lacks the knowledge or skill to draw the proper inferences from the underlying data.” Im-winkelried, supra, at 241. With this category of lay opinion testimony, to determine admissibility, the trial court properly focuses on the relative knowledge and experience of the witness versus the trier of fact. As an example, in Scott v. Hampshire, Inc., 246 Md. 171 , 227 A.2d 751 (1967), we allowed a former naval construction worker to offer a lay opinion as to the relative degree of safety connected with different methods of operating a crane. Id. at 176-77 , 227 A.2d at 754 .

Although the plaintiff in Scott was not qualified as an expert, we concluded that his prior experiences and observations in the operation of cranes qualified him to offer lay opinion testimony in that case. See also Ager v. Baltimore Transit Co., 213 Md. 414, 419-20 , 132 A.2d 469, 472 (1957) (allowing an experienced ambulance attendant to offer lay opinion testimony that an accident victim was “feigning” injury). Maryland courts have recognized that the specialized training, experience, and professional acumen of law enforcement officials often justify permitting a police officer to offer testimony in the form of lay opinion. See, e.g., Ricks v. State, 312 Md. 11, 31-32 , 537 A.2d 612, 621-22 , cert. denied, 488 U.S. 832 , 109 S.Ct. 90 , 102 L.Ed.2d 66 (1988).

To restrict such testimony to underlying factual observations would often deprive the trier of fact of the necessary benefit of the percipient mind’s prior experiences. In those circumstances, these prior experiences would be a sine qua non to a full understanding of the underlying factual data. See Tu v. State, 97 Md.App. 486, 501 , 631 A.2d 110, 117 (1993), aff'd on other grounds, 336 Md. 406 , 648 A.2d 993 (1994). B. In this case, Troopers Harrison and Karwacki did not simply offer opinion testimony that the disputed substance ¹²¹ looked like crack cocaine.

Rather, the troopers expressed the opinion that, based on their training and experience, the alleged contraband was in fact crack cocaine. The determination of whether specific evidence is relevant in a given case rests with the trial court, and that determination will not be disturbed on appeal absent a clear abuse of discretion. Merzbacher v. State, 346 Md. 391, 404-05 , 697 A.2d 432, 439 (1997); State v. Allewalt, 308 Md. 89, 101 , 517 A.2d 741, 747 (1986). As previously discussed, for lay opinion testimony to be admissible in the first instance, it must be derived from first-hand knowledge, rationally connected to the underlying facts, and helpful to the trier of fact.

See supra, part III. A. Because we conclude that the lay opinion testimony of Troopers Harrison and Karwacki satisfied none of these threshold requirements, the trial court abused its discretion in admitting that testimony. We discuss each deficiency in turn. Personal Knowledge The first-hand or personal knowledge prerequisite of Maryland Rule 5-701 derives from the rule’s requirement that lay opinion testimony be based upon “the perception of the witness.” 14 Md. Rule 5-701.

Yet the act of perceiving, by itself, does not satisfy this requirement: “Even if a witness has perceived a matter with his senses, the second component of personal knowledge requires that he has the experience necessary to comprehend his perceptions.” 29 Charles A. Wright & Victor J. Gold, Federal Practice and Procedure: Evidence § 6254, at 133 (1997) (footnote omitted). Thus, “where the lay witness observes matters that can be comprehended only with specialized experience, it may be necessary to demonstrate that the witness has such experience.” Id.; ¹²² see Lynn McLain, Maryland Evidence § 701.1, at 195-96 (1987); 1 McCormick on Evidence § 12, at 46 n. 22 (J. Strong ed., 4th ed. 1992) (“[W]here relevancy requires, a foundation must be laid as to the witness’ personal knowledge of facts to which the observed facts are being compared.”). In the present case, the record demonstrates that the trial court would have been justified in concluding that Troopers Harrison and Karwacki had the training and experience to offer opinion testimony as to the visual appearance of crack cocaine. See State v. Schofill, 68 Haw. 77 , 621 P.2d 364, 369-70 (1980) (noting that a police officer not able to render an opinion that a “substance was in fact cocaine,” still possessed the expertise “to state that the substance ‘appeared to be cocaine’ ”).

Yet neither trooper limited his testimony to identifying the visual characteristics of the disputed substance. Rather, both Harrison and Karwacki testified to the chemical nature of the alleged contraband. In response to the question, “Do you have an opinion as to what the substance was?,” Trooper Harrison stated, “Crack cocaine”; and Trooper Karwacki answered, “That it was, in fact, crack cocaine.” In stark contrast to their relative abilities to perceive the visual characteristics of suspected crack cocaine, the record does not demonstrate that either Trooper Harrison or Trooper Karwacki had the training and experience necessary to accurately identify the chemical nature of that substance. 15 Yet that is precisely what their testimony purported to do. A case decided by our predecessors over a half century ago, Smith v. State, 182 Md. 176 , 32 A.2d 863 (1943), foreshadowed ¹²³ the result we reach today.

In