Gauvin v. State
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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? A Yes, I have. Q 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? A Yes, I h ave. 2 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? 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 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 5 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, § 7.13 at 66 8-69 (4th ed. 2009) (footn otes om itted). When this Court adopted the Maryland Rules of Evidence in 1993, we included MRE 5-704, § (a) of which is identical to FRE 704(a), and § (b) of which includes all of FRE 704(b), but also provides: This exception does not apply to an ultimate issue of criminal responsibility. Although we have made no changes to this rule since we adopted it, we did not adopt the version of MRE 5-704 that was initially proposed by the Rules C ommittee. W hen the pro posed R ules of Ev idence w ere subm itted to this Co urt in the One Hundred Twenty-Fifth Report of the Rules Committee, proposed Rule 5-704 provided: OPINION ON ULTIMATE ISSUE Testimony in the form of an opinion or inference otherwise admissible is not objectio nable me rely because it embra ces an u ltimate is sue to b e decid ed by the trier of f act. The REPORTER S NOTE to this proposed Rule contains the following explanatio n for the de cision to reco mmend that section (b ) of FRE 704 not b e included in MRE 5-704: F.R.Ev. 704 was amended in 1984 following the trial of John Hinckley for the attempted assassination of then-President Reagan. New section (b) provided, 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 whethe r the defen dant did or d id not have the menta l state 7 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. Section (b) of F.R .Ev. 704 is o mitted from proposed Rule 5-704 for two reasons. First, Rule 704 (b) is roughly the equivalent of the current state of Maryland law regarding the admissibility of expert o pinion on the menta l state or condition of a criminal defendant at the time of the commission of the crime. Second, Rule 704 (b) differs from the law in Maryland regarding expert testimony on the issue of criminal resp onsi bility. As to the first reaso n, Maryland courts have con sistently rejected arguments that a psychiatrist or psychologist be permitted to testify that a defendant was unable to form the specific intent to comm it a crime . Cirincione v. State, 75 Md.A pp. 166 (1988 ). See also Simmo ns v. State, 313 Md. 33, 47-48 (1988). During a n Octob er 4, 1993 o pen hearin g on the O ne Hun dred Tw enty-Fifth Report, this Court requested that the Committee respond to a number of questions, including th e question o f whethe r MRE 5-704 sho uld expres sly preclude an opinion as to the defen dant s spec ific intent. In a lette r dated O ctober 29, 1 993, the C ommittee s tated: Although there did not appear to be any sentiment for including § (b) of FRE 704 to pre clude an u ltimate opinion as to criminal responsibility, a question was raised whether compara ble language was necessary to preclude an opinion as to a required specific intent. In that regard, the Court might consider a § (b) as follows: (b) An exp ert 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 8 of the crime charged. That issue is for the trier of [fact] alone. This exce ption does not apply to an ultimate issue of criminal responsibility. If the Court opts for a provision such as this, a Committee Note should be added to make clear the distinction between the Maryland Rule and the Fe deral. The Court might consider the following: Committee Note: Section (b) of this Rule is substantiv ely different from F .R.Ev. 7 04(b). The Federal provision precludes an opinion on the ultimate issue of criminal respon sibility, i.e., sanity. The M aryland Rule does not preclude such an opinion. It does, however, preclude an opinion as to whether the defendant had a required intent or mental state where that intent or state is an element of the offense. See Hartless v. S tate, 327 Md. 5 58[, 61 1 A.2d 581] (1 992). At an open hearing on November 18, 1993, this Court adopted the present rule and approv ed the p ropose d Com mittee N ote. In Hartle ss, while affirming convictions for murder and related offenses, and rejecting the contention that the trial court erroneously excluded the . . . opinion [of the defendant/petitioner s psychiatrist] with respect to the defendant s state of mind at the time of the offense, this Court stated: [T]he opin ion o f [th e def endant s psyc hiatrist] concerning the defendant s actual intent at the time of the o ffense w as properly excluded. As this Court made clear in Simmo ns v. State, 313 Md. 33, 48, 542 A.2d 1258 (1 988), and in Johnson v. State, 303 Md. 487, 515 , 495 A.2d 1 (1985 ), cert. den ied, 474 U.S. 1093, 106 S.Ct. 868, 88 L.Ed.2d 907 (1986), psychiatrists have not been shown to have the ability to precisely reconstruct the emotions of a person at a specific time, and thus ordina rily are not competent to express an opinion as to the belief or intent which a person in fact harb ored at a particul ar time. See also 9 Globe Security Systems v. Sterling, 79 Md.App. 303, 307-08, 556 A.2d 73 1 (1989). Id. at 572- 73, 611 A.2d a t 588. Neither Hartless nor MRE 5-704(b) are inconsistent with cases interpreting FRE 704(b) in w hich the co urts have d rawn the critical distinction between (1) an exp licitly 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. As Professors Mueller and Kirkpatrick have explained: 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 conspiracie s does not v iolate FRE 704(b) ev en though it provides evidence that persuades a jury, in light of what defendant and others are show n to have d one, that the re quisite intent ex isted. Christo pher B . Mue ller & L aird C. K irkpatric k, Eviden ce, § 7.13 at 670 (4th ed. 2009) (footn otes om itted). The cases with which we agree include United States v. Lipscomb, 14 F.3d 1236 (7th Cir. 1994), and United States v. Gonzales, 307 F.3d 906 (9th C ir. 2002). In Lipscomb, while affirming drug-trafficking and related offenses based in part on the testimony of three law enforcement officers who opined that cocaine seized from the appellant s p erson wa s for street lev el distribution, th e United S tates Court o f Appe als for the Seventh C ircuit concluded that FR E 704(b) does n ot operate to exclude ex pert 10 testim ony th at a certai n pattern of co nduct is c onsi stent with criminal ac tivity: [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, thought not determinative, is the degree to which the expert refers specifically to the intent of the defenda nt, . . . for this may indeed suggest, improperly, that the opinion is based on som e special knowled ge of the defend ant s menta l proces ses. In this case, each of the challenged opinions was immedia tely 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 work ings of Lipsco mb s m ind. Id. at 1242 -43 (cita tions an d footn otes om itted). In Gonzales, while affirming firearm and drug trafficking convictions, the United States Court of A ppeals for the Ninth C ircuit rejected the argument that the d istrict court erred in admitting expert testimony on Gonzales s mental state[.] Id. at 908. The government s case against Gonzales included the testimony of a DEA Special Agent who was qualified as an expert in drug distribution and possession. During his testimony, the agent 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. Id. at 911. The appellate court explained why the agent s answer to this question did not 11 violate FRE 70 4(b): [The Special A gent] testified th at my opinio n would be that based upon the weight [of the drugs seized], that [sic] indeed it would be used to distribute as opposed to possess for your own ingestio n. [The Sp ecial Age nt] was asked whether his opinion would be firmer o r less firm if the person carrying the drugs was also carrying a gun, pay/owe sheets and a scale. He responded, Well, those circumstan ces wou ld lead me to believe and make my opinion extremely firm that that person was carrying those items for the purpose of distributing the drugs. *** In United States v. Morales, 108 F.3d 1031, 1035-36 (9th C ir. 1997) (en banc), w e held . . . [a] p rohibited op inion or inference under Rule 70 4(b) is testimony from which it necessarily follows, if the testimony is credited, that the defendant did or did not possess the requisite mens rea. Id. at 1037. In Morales, we upheld the ad missibility of the expert testimony at issue because - although the prosecution presented the testimony hop ing the jury wo uld infer the requisite mens rea - the defendant s intent to distribute . . . the testimony did not compel that inference. Id. at 1038. *** It is sometime s difficult to distinguish between a n expert opinion that would necessarily lead to the finding of a particular intent and an opinion that only comes close to this forbidden effect. For exam ple, an opin ion by a polygrap h examin er that a defendant was lying when the defendant stated in the course of polygraph testing that he did not have a requisite mens rea is inadmissib le under Rule 704(b) because, if the jury believed the expert opinion, it would necessarily find inte nt. See United States v. Campos, 217 F.3d 707 (9th Cir. 2000 ) (so holding). That is not the case here. [Th e Special A gent] neve r directly and unequivocally testified to Gonzales s mental state; he never stated directly that Gonzales had the intent to distribute. Rather, he indicated his firm conviction that a person possessing the 12 evidence in question would, in fact, possess the drugs for the purpose of distributing. Even if the jury believed the expert s testim ony, the jury could have concluded that Gonzales was not a typical or representative person, who possessed the drugs and drug paraphernalia involved. In other words, it could be concluded that, although a typical person might have had the requisite purp ose or inten t, Gonzale s was atypical a nd did no t. Id. at 911-12. Although it is often stated that trial judges have wide discretion to admit or exclude items of evidence, a trial judge does not have discretion to make an erroneous ruling that results in the admission of inc ompetent and u nfairly prejudicial expert testimo ny. Bohner t v. State, 312 Md. 266, 279, 539 A.2d 657, 663 (1988). 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 defe ndant pos sessed a co ntrolled dan gerous su bstance w ith the intent to d istribute it. Sgt. McDonough, however, never expressed an opinion that crossed the line established by MRE 5-704(b). As was the situation in Gonzales, supra, Sgt. McDonough never directly and unequivocally testified to [Appellant s] mental state; he never stated directly that [Appellant] had the intent to distribute. 307 F.3d at 911. As was the situation in Lipscomb, supra, Sgt. McDonough s opinion was based upon his knowledge of common practices in the drug trade, rather than on some special familiarity with the 13 workings of [Appellant s] mind. 14 F.3d at 1243. No unfair prejudice occurs when an erroneous evidentiary ruling results in the introduction of admissib le eviden ce. Ali v. State, 314 Md. 295, 309, 550 A.2d 925, 931-32 (1988). In Ali, while affirming con victions for murder an d related offenses, this Co urt rejected the contention that a physician should not have been permitted to testify about the side effects of the drugs that he had administered to the State s key witness, while that witness w as recover ing from n ear fatal injurie s inflicted by the d efendan t and his accomp lices. In that case , the State s ke y witness wa s impeach ed with ev idence that, while hospitalized after escap ing from the perpe trators, she had said some b izarre things and ha d mad e sever al statem ents tha t were in consiste nt with her trial te stimon y. When the witness s treating physician was called during the State s case-in-rebuttal, the Circuit Court ruled that [h]e s only going to be permitted to say the probable effect of the drugs that the record sho ws she was a dministered at that particular time. The record shows that the following transpired during the physician s direct examination: Prosecuto r: Do you ha ve an opin ion within a reasonab le degree of medical certainty as to what, if any, side effects the two drugs being given together in those dosages at those times would have o n Mrs. []? [Doctor]: Yes, I do. Prosecutor: Could you g ive us that please, Doctor? [Doctor]: There are multiple potential side effects to these drugs. One is nause a and vomiting. Th e second is respiratory depression. Third is increased sleepiness or drowsiness. And 14 fourth is a lac k of com plete ability to respo nd coher ently to questions. Defense Counsel: Objection. The Court: Overruled. This Court explained why the appellant was not entitled to a new trial on the ground that the prosecutor asked an improper question: We conclude that the prosecutor had a right to present evidence from this expert concerning the known s ide effects o f specific drugs given in the doses and at the tim e shown by the record to a person of the height, age, weight, and known medical condition of [the witnes s]. The pr osecutor s last question strayed from the track established by the court. The doctor s answer did not. The o bjection to the answer was properly overruled. The State was not attempting to establish by the doctor s testimony alone that [th e witness] w as disoriented when she spoke to Officer Ash during the first three days of her hospitalization . [The w itness] had a lready testified to th at fact. At that point, the jury had at least two obvious options concerning the inconsistencies in [the witness s] statements: 1) she was lying, or 2) her ability to accu rately recount the details of the event was adversely affected by the medication she had been given. The State was offering the testimony of an expe rt to show that these drugs could, and were known to, cause this effect upon a person such as [the witness]. This information was relevant, and potentially useful to the jury. A juror attempting to determine whether [the witness] was telling the truth when she said she was disoriented o r in and ou t of it because of medic ation wou ld obviou sly benefit from knowing as a scientific fact whether that medication could, or often did, produce such an effect. Proof that the medication was kno wn to diminish the ability to respond coherently to questions was therefore relevant and admissible. 15 The prosecutor s final question went off track because he asked what side effects the drugs would have had on [the witness], rather than asking wh at side effects were known with reasonab le probability to occur to a person such as [the witness]. The doctor did not respond directly to the question, but answered only by stating that the re are multip le side effec ts to the drugs, and naming four su ch side effect s. The doctor s answer was entirely proper, and within the correct guidelines established by th e trial judge. Notwithstanding the wording of the prosecutor s question, the answer did not suggest that the doctor w as giving an op inion that [the witness] had in fact suffered any of the known side effects. . . . The trial judge did not err in any of his rulings on this evidentiary question. Id. at 309-10, 550 A.2d at 931-32. (Emphasis added ). As was the situation in Ali, although the prosecutor s question strayed from the track established by MRE 5-704(b), Sgt. McDonough s answer did not. Und er these circumstances, Appellant is not entitled to a new trial on the ground that Sgt. McDonough expressed an opin ion that should have b een excluded un der Md. Ru le 5-704(b). JUDGMENT AFFIRMED; APPELLANT T O PAY THE C OSTS. 16 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 Barbera, JJ. Dissen ting Op inion b y Bell, C. J ., which Greene, J., joins. Filed: December 18, 2009 Alisa Marie Gauvin, the petitioner, on Decemb er 15, 2006, was a rrested by Calvert County police officers after they observed her driving a Cadillac, which they earlier had noticed parked, with the engine running and headlights on, in what seemed to the officers to be an unusual location. She initially was charged with driving under the influence of alcohol and/or drugs, to which, later, were added possession of PCP in sufficient quan tity to indicate an intent to distribute, possession of PCP, and possession with intent to use drug paraphernalia. When s he was a rrested, she w as observe d to be disorientated, and slurring her speech, and a chemical odor emitting from the vehicle was detected. A search of the vehicle incident to the arrest resulted in the discovery of two clear glass bottles totaling approxim ately eighteen milliliters of liquid phencyclidine (PCP), a jar containing four-tenths of a gram of parsley saturated with PCP, a hand rolled cigarette weighing one-tenth of a gram also saturated with PCP, one pair of rubber glo ves, three eye d roppers, an d cigarette rolling paper. From the petitioner s person, the officer seized two-hund red and forty dollars ($240). During her bench trial, the State called First Sergeant M atthew M cDono ugh ( Sg t. McDonough ) to testify as an ex pert in the field of narcotics use, manufacturing, packaging, and meth ods of distrib ution. Th e followin g colloquy oc curred du ring his testimo ny: [THE PROSECUTOR]: 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? [SGT. MCD ONO UGH ]: Yes, I hav e. [THE PROSECUTOR]: And have you had the occasion here today to hear the testimony of the witness[es] who have come before you today in connection with this matter? [SGT. MCD ONO UGH ]: Yes, I hav e. [THE PROSECUTOR]: And based upon 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, 2006 was for her personal consumption or for distribution. [SGT. MCD ONO UGH ]: Yes, I wa s able to form a n opini on. [THE PROSECUTOR]: And what is that opinion? [SGT. MCDO NOU GH]: That the a m - [DE FEN SE C OUN SEL] : Objec tion, Your Honor, just for th e record . [THE COURT]: Certain ly. Overr uled. [DE FEN SE C OUN SEL] : Than k you. [MCD ONO UGH ]: That the amount would indicate to me that it was possessed with intent to distribute. I wo uld base tha t on different f actors. Asked to explain [his] conclusion to the court and the factors used in reaching that opinio n, Sgt. McDon ough testified tha t it is com mon for people to use a dipp er an d eye dropper to transfer liquid PCP to hand-rolled cigarettes for the purposes of ingestion and that the fou r tenths of a g ram fou nd in petition er s vehicle would average out to four hand-rolled cigarettes if you are going to break it down that way. ... So you are looking at 18 doses or 18 cigarettes on top of the possibility of four parsley c igarettes, depending on h ow widely they were done u p. ... Sgt. McDonough also testified the going rate or street value per dipper or a cigarette laced or saturate d with p hencyclid ine w as 15 t o 20 do llars. From the $240 found on petitioner s 2 person all in twenties and the liquid missing from the[] vials, Sgt. McDonough deduced some o f it had alread y been distribute d. Sgt. M cDono ugh con cluded: [SGT. MCDON OUGH]: ... I find that this is kind of a unusually large amount for a user to be driving around w ith in a veh icle. Typically when I either made arrests or made contact with other officers that have made arrests for phencyclidine, that may have one or two cigarettes which have already been saturate d[.] ... This is this much PCP based on m y training and experience would not be u sed in a single e vening or even a two d ay usage . The petitioner w as convicte d of poss ession of P CP with intent to distribute, for which she was sentenced to ten years imprisonment. She noted an appeal to the Court of Special Appeals, challengin g, as to that conviction, the admission o f Sgt. McD onough's expert testimony. I. Legal A nalysis At issue in this case is the application and, perhaps, the viability, of Maryland Evidence Rule 5-704 (b). Although the majority acknowledges, and even holds, that the question elicited the witness opinion with regard to the petitioner s intent in possessing the controlled dangerous substance and paraphernalia, it gives no effect or w eight to t hat hold ing. Instead, it focuses only on the answers given by the witness, concluding from them alone that the witness did not opine on the petitio ner s int ent. Gauvin v. State, __ Md. __, __, __ A.2d __, __, [slip op. at 16] (2009). The majority reasons that, notwithstanding that the testimonial question expressly naming the petitioner, because the witness s response did not, that response is to be construed as a more general response and not as one made with direct reference to the petitioner or to the petition er s crim inal inten t. Id. at, __, __ A.2d at __, [slip op. at 13]. By 3 separating - independently considering - an improper testimonial question concerning the petitioner's criminal intent from the witness s answer, the majority perm its a witness to speculate as to a criminal defendant s mental state and, worse yet, declares it to be admissible. In so doing, it evades the express language of Rule 5-704 (b), in effect rendering it essentially meaningless. I do not a gree an d, so, sha ll dissen t. There are two rea sons. First, the majority s holding directly contravenes the express language of Rule 5-704(b), which excludes from evidence an opinion by an expert w itness regard ing the me ntal state of a c riminal def endant. Second, and in any event, a court cannot isolate a witness s response from the testimonial questio n whic h prom pted the respon se in the first plac e. A. The Use of Federal Rules of Ev idence 704 is improper in this case. Maryland Rule 5-7041, Opinion on Ultimate Issue, and not Federal Rule of Evidence 704 2 governs th is case. The history of the R ule and the Rule itself m ake this clear. Following 1 2 Maryland Rule 5-704 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 decid ed by the trier of fact. (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. Tha t issue is for the trier of fact alo ne. This exception does not apply to an ultimate issue of criminal responsibility. Federal Rule of Evidence 704. Opinion on Ultimate Issue (a) Except as provided in subdivision (b), testimony in the (continued...) 4 the adoption of FRE 704, there was discussion in Maryland about taking existing evidence based rules and the caselaw that had been developed and codifying both into one set of Maryland Rules, to be found at Title 5 of the Rules. U nwilling sim ply to duplicate the Federal Rules, the Court o f Appe als carefully considered each rule drafted by the Maryland Standing Committee on Rules of Practice and Proc edure sep arately to ensure that e ach Ma ryland Rule was consistent w ith existing Maryland law. Initially, as proposed by the One Hundred Twenty-Fifth R eport, Rule 5-704 rea d: Rule 5-704. Opinion On Ultimate Issue Testimony in the form of an opinion or inference otherwise admissible is not objectiona ble merely because it embraces an ultimate issue to be decided by the trier of fact. During the October 4, 1993 presentation of the Rule, the Honorable Alan Wilner1 expressed his concern that, in an attempt to separate this rule from FRE 704, perhaps the Committee had gone too far. Acknowledging the Court s sentiment that Marylan d law in this area was not akin to the Federal law and believing that there were aspects of Maryland 2 (...continued) form of an opinion or inference otherwise admissible is not objectionable 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 cond ition of a de fendant in a criminal ca se may state an opinion or inferenc e as to wh ether the de fendant d id or did not have the mental state or condition constituting an element of the crim e charged or of a def ense thereto . Such ultim ate issues are matters for the trier of fact alone. 1 Honorable Alan Wilner who was then sitting on the Court of Special Appeals, and was serving as Chair of Court of Appeals Standing Committee on Rules o f Practi ce and Proced ure. 5 law that still should be encapsulated by the final version of Rule 5-704, he submitted a letter to the court, d ated Octo ber 29, 199 3, which re ad: Although there did not appear to be any sentiment for including § (b) of the FRE 704 to preclude an ultimate o pinion as to criminal resp onsibility, a question has been raised whether comparable language was necessary to preclude an opinion as to a requ ired spe cific inte nt. In that regard, the Court might consider a § (b) as follows '(b) An expert witness testifying with respe ct 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. T his exceptio n does no t apply to an ultimate iss ue of crim inal respon sibility.' If the Court opts for a provision such as this, a Committee Note should be added to make c lear the distinctio n betwee n the M aryland Rule and the Fe deral. The Co urt might co nsider the fo llowing: 'Committee Note: Section (b) of this Ru le is substantiv ely different than FRE 704 (b). The Federal provision precludes an opinion on the ultimate issue of crimina l responsibility, i.e., sanity. The Maryland Rule does not preclude such an opinion. It does, however, preclude an opinion as to whether the defendant had a required intent or mental state where that intent or state is an element of the offense. See Hartless v. State, 327 Md. 558 (199 2).' At the open hearing, on November 18, 1993 the Court approved and adopted this version of Rule 5 -704, in addition to the C omm ittee note . Section (a) of Rule 5-704 sets out the general rule for expert witness testimony, permitting an expert witness to state his or her opinion even if it relates to the ultimate issue to be decided by the trier of fact, the jury in a jury trial, the trial judge in a bench trial. 6 Section (b) of Md. Rule 5-704, however, is an exception to that general rule. Although, as originally adopted, it did not expres sly provide that section (b) w as an exception to section (a), the Court, on recommendation of the Rules Committee, clarified the relationship between section (a) and section (b) in the 1995 amendment of the Rule by adding the underscored language: (a) In gene ral. Except as provided in section (b) of this Rule, testimony in the form of an opin ion or infere nce otherw ise admissib le is not objectionab le merely becau se it emb races an ultimate issue to b e decid ed by the trier of f act. The min utes from the Rules C ommittee m eeting of A pril 8, 1994 re flect: The Chairman explained that the reason this added languag e was not there originally is because the Rule as drafted by the Rules Committee did not contain section (b) which was later added by the Court of Appeals. There was no discussion about this issue so the change was approved by the Co mmitte e. The Source note for the Rule also states , Section (a) of this Rule is derived from FRE 704(a). Section (b) is new. There can be no doubt that, in adopting section (b) of Md. Rule 5-704, this Court unequivo cally meant the Maryland Rule to be different from the Federal Rule. The history of section (b) of the Maryland Rule, therefore, was never intended to be compared to FRE 704. Neverth eless, the ma jority states: Neither Hartless nor MRE 5-704(b) are inconsistent with cases interpreting FRE 704(b) in w hich the co urts have d rawn the critical distinction between (1) an explicitly stated opinion th at 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. Gauvin , __ M d. at __, __ A.2d at ___ [slip op. at 9-10]. The majority, citing only legal 7 authority focused on, applying and interpreting FRE 704, proceeds without another mention of the M aryland R ule until it states its h olding . Gauvin , __ Md. at __, __ A.2d at ___ [slip op. at 10-13]. On the basis of Rule 704 (b) and those authorities, it concludes that although the prosecutor s question strayed from the track esta blished by M RE 5-7 04(b), Sgt. McDo nough s answer did not[], Gauvin , __ Md. at __, __ A .2d at ___ [slip op. at 16], because it did not cross[] the line established by MRE 5-704(b). Gauvin , __ Md. at __, __ A.2d at ___ [slip op. at 13]. The majority, thus, by this holding, has disregarded Rule 5-704 (b) and its specific language, with which it is irreconcilable, to attain a result that only co uld be reached by follow ing FR E 704 (b). There is no doubt that the majority absolutely relies on the Fe deral Rule and utterly disregards the Maryland Rule. In doing s o, how ever, the majority overlooks its own historical recitation and the Rules Committee Note, which comments directly on th e relationship between Md. Rule 5-704(b) and the FRE 704. Indeed, the analysis by the majority provides a hasty, though surreptitious, abandonment of the Maryland Rule in fa vor of, and so that it could d raw pa rallels to, th e Fede ral Rule and the case law interpre ting and applying it. To be sure, where the determination involves a question of federal constitutional law, Bd. of Educ . v. Zimmer-Rub ert, 409 Md. 200, 214, 973 A.2d 233, 241 (2009), or the Maryland and Federal Rules are iden tical, Washin gton v. State , 406 Md. 642, 651, 961 A.2d 1110, 1115 (20 08), our inq uiry is not limited to c onsideration of the Maryland Rule to the exclusion of the federal rule. Wher e, how ever, a Maryland Rule expressly differs from the 8 Federal Rule, this Court has not relied on that Federal Rule and the case law interpreting it to inform the meaning of the M aryland R ule. Greco v . State, 347 Md. 423, 434, 438, 701 A.2d 419,424 , 426 (199 7) (analyzing R ule 4-345 (b), the prede cessor to R ule 4-345 (e), in juxtaposition to Federal R ule of Crim inal Proced ure 35 (b), an d noting tha t, despite similarities in the language betw een the two rules, there are significant differences between the current Maryland rule and its federal counterpart, such that the Federal Rule and accompanying federal decisions do not embody the appropriate rationale for interpreting [the] Marylan d rule. ) , see also Fuller v. State, 397 Md. 372, 380, n.6, 918 A.2d 453, 458, n.6 (2007). Maryland C ourts are bound b y Maryland law , in this case, the Maryland Rules, unless there is a clear indication that the app licable M aryland Rule is interchang eable with its federal counterpart. This case does not present such a situation. Maryland Rule 5-704, therefo re, contr ols the o utcom e of this case. Acc ordingly, the majority s reliance on cases, such as United States v. Lipscomb,14 F.3d 1236 (7th Cir. 1994) and United States v. Gonzales, 307 F.3d 906 (9th Cir. 2002), that interpret the fed eral cou nterpar t to Ma ryland R ule 5-7 04 (b), is misplac ed. In Lipscomb, the defendant was arrested after he fled a stolen car at the close of a police chase. 14 F.3d 1236, 1237-1238. During the search of his person incident to the arrest, police officers recovered one revolver, six bullets, $404 in cash, and 4.2. grams of cocain e. Id. at 1238. Lipscomb was found guilty of possession of a firearm by a person previously convicted of a felony, one count of using and carrying a firearm in relation to the commission of a drug-trafficking 9 crime a nd one count o f posse ssion o f coca ine with intent to distribu te. Id. at 1238 -1239 . On appeal, the United States Court of Appeals for the Seventh Circuit applied FRE 704 when c onsidering whether the district cou rt erred in permitting the officers to give their expert opinions of whether the cocaine they found on him was for distribution rather than for his personal use. Id. at 1239. Relying on the 1984 Senate Report which introduced FRE 704, the court determined that section (b) of the rule was not intended to apply to expert law enforc emen t testimo ny. Id. at 1241. It state d: Thus, it is evident that Rule 704(b) was designed to avoid the confusion and illogic of translating the "medic al concep ts" relied upo n by "psychiatrists and other mental health experts" into legal conclusions. That limited purpose, furthermore, is reflected in the language of the rule. The rule does not purport to apply to every expert witness; instead, its first phrase restricts its application to experts "testifying with respect to the mental state or cond ition" of a crim inal defen dant. * * * And so the most sensible way to read it, in light of its terms and the purpose of the rule, is as referring to testimony based on a "psychiatric" or similar "medical" analysis of the defendant's mental proces ses. See United States v. Richard, 969 F .2d 849 , 855 n.6 (10th C ir.), cert. denied, 121 L. Ed. 2d 181, 113 S. Ct. 248 (1992) (suggesting, without d eciding, that R ule 704(b ), should be confined to suc h testimony). The expert law enforcement testimony at issue in this case did not, of course, depend on any such analysis. Nor did the testimony present the kind of danger Rule 704(b) w as designe d to avoid. The Senate and House reports quoted above indicate that the danger as sociated w ith mental he alth testimony is that the expert, w ho is qualifie d only to expla in medical concepts, will be called upon to interpret legal ones. No similar danger arises from the testimony of law enforcement experts because, by definition, they are qualified to identify illegal behavior and to distinguish among its various forms. It is no stretch, 10 then, for a law enforce ment expert to say that a certain pattern of conduct evinces a particular kind of criminal activity. On the contrary, such testimony is consid ered qu ite helpf ul in dru g-traff icking c ases. Id. at 1241-1242. Although the court seem ed certain it co uld resolve the question before it without reference to Rule 704 (b) it did feel the need to square its holding with the inconsistent application o f the Rule in its own court an d sister f ederal c ircuits. Id. at 1242. In doing so, it held: To reconcile that fact with our impression, discussed above, tha t the rule is of more limited scope, w e conclud e that when a law enforcement official states an opinion abou t 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 cou rt 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 determ inative, is the degree to which th e expert refers specifically to the "intent" of the defen dant, see Brown, 7 F.3d at 653 n.2, for this may indeed suggest, improperly, that the opinion is based on some s pecial k nowle dge of the def endan t's menta l proces ses. Id. at 1242-1243. The Lipscomb court s discussion of the background of the Federal Rule further clarifies why the M d. Rule is substantively different. The Committee Note for Rule 5-704 specifically discusses th e distinction between the federal and Maryland rules that the Lipscomb court h ighligh ts. The Federal provision precludes an opinion on the ultimate issue of criminal resp onsi bility, i.e., sanity. The Maryland Rule does n ot preclude such an opinion. It does, however, preclude an opinion as to whether the defendant had a required in tent or men tal state whe re that intent o r state is an element of the o ffense . 11 Cases which apply the Federal Rules cannot therefore inform this Court on application of the Marylan d Rule s. Notably, even under Lipscomb s narrow application of FRE 704 regarding expert law enforcement testimony, the testimony of Sgt. McDonough still is inadmissible under the Maryland Rule. The Lipscomb court states that it and other courts have looked at the use of magic words, such as the witness s specific mention of intent to trigger[] [the] application of the rule. Lipscomb,14 F.3d at 1240. Although the court states that the use of the word intent is not dispositive, it notes the word is nevertheless a strong indicator that the limited scope of the rule has been violated and that the opinion offered was based on some special knowledge of the defendant s mental process. Id. at 1242. During his testim ony, Sgt. McDonough used the trigger words the Lipscomb court states are strong indicator[s] that the rule has been violated. Thus, while Lipscomb's analysis of the federal rule is not dispositive in this case, even under its analysis, the majority holding that the answer is not vio lative of the rule c annot b e supp orted. The majority also relies on United States v. Gonzales, 307 F.3d 906 (9th C ir. 2002). In Gonzales, the defend ant initially was arrested and charged by a plain clothes officer who witnessed him and another individual engaged in a possible narcotics transaction. Id. at 908. After he failed to appear for a court hearing, he was arrested again. On this occasion, a search of his person uncove red drugs and $ 243 in cash, id., and the inventory of a backpack that Gonzales possessed revealed a gun, drugs, and drug paraphernalia. Id. It was determined that 12 Gonzales possessed the drugs w ith inten t to distrib ute, id. at 909, of which, in addition to being a felon in possession of a firearm and ammunition and carrying a firearm during a drug trafficking crime, id. at 908, Gonzales was convicted . On appeal, Gonzales argued that the district court er red in ad mitting e xpert tes timony o n Gon zales s m ental sta te. Id. The co urt, the m ajority poin ts out, Gauvin , __ Md . at __, __ A .2d at ___ [ slip op. at 11], rejected that argument. W ith regard to its explanation of why the agent s a nswer to [the prose cutor s] que stion did no t violate FR E 704(b ), the special a gent, the cou rt said: never directly and unequivocally testified to Gonzales's mental state; he never stated directly that Gonzales had the intent to distribute. Rather, he indicated his firm conviction that a person possessing the evidence in question would, in f act, possess th e drugs fo r the purpose of distributing. Even if the jury believed the expert's testimony, the jury could have concluded that Gonzales was not a typical or representative person, who possessed the drugs a nd dru g parap hernalia involv ed. Gauvin, __ Md. at __, __ A.2d at ___ [slip op. at 12] (quoting Gonzales, 307 F.2d at 911-9 12). In this case, Sgt. McDonough stated [t]hat the amount would indicate to me that it was possess[ed] with intent to distribute. Unlike the factual situation in Gonzales, Sgt. McDonough makes no reference to whether a typical or representative person in possession of that amou nt of drugs would possess the drugs for personal consumption or distribution. Without a general reference to Sgt. McDonough s professional background or to what i s consistent with a typical or representative person the jury in this case, contrary to Gonzales, could not have made the decision whether the petitioner was atypical. Moreover, because the Federal Rules are not controlling, the holding in Gonzales is not dispositive. If this C ourt, 13 however, turned to Gonzales for guidance, my position w ould rema in the same because S gt. McDonough s testimony did not generally refer to what is consistent with his professional background, but instead was specific to what he speculated the petitioner s mental state to be. This is in admiss ible testim ony purs uant to M d. Rule 5-704 (b). B. A testimonial question for purposes of review cannot be divorced from the answer given. The majority relies on Ali v. State, 314 M d. 295, 550 A.2d 925 (1986) for the proposition that when a court is reviewing whether testimony was properly admitted, the question m ay be conside red separa te from the answer g iven. The m ajority states: As was the situation in Ali, although the prosecutor s question strayed from the track established by MR E 5-704 (b), Sgt. McD onough s answe r did not. Under these circumstances, A ppellant is not entitled to a new trial on the ground that Sgt. McDonough expressed an opinion that should have been excluded under Md. Rule 5-704 (b). Gauvin , __ Md. at __, __ A.2d at ___ [slip op . at 16]. Ali predates the promulg ation of R ule 5-704 (b). See Mayor of Oakland v. Mayor of M t. Lake Park, 392 Md. 301, 317, 896 A.2d 1036, 1046 (2006) ( The cases relied upon by respondent, with the exception of Pumphrey v. Stockett, 187 M d. 318, 49 A .2d 804 (1 946), all pred ate the enac tment of A rt. 1 § 36 and are no longer pers uasive. ); see also Montgom ery Coun ty Bd. of E duc. v. H orace M ann Ins ., 383 Md. 527, 545, 860 A.2d 909, 919 (2004) ( It would be wholly inconsistent with our case law case law that predates the enactment of the statutes now contained in §§ 4-104(d) and 4-105 and that was therefore presumably known to the Legislature when they enacted those statutes to construe § 4-105 as allowing the board to make its ow n unreviewab le decision whether a 14 potentiality of coverage ex ists in any given case. That being so , it would be absurd to construe § 4-104(d), enacted to m ake explicit th e duty to defend that was implicit in § 4-105, to achieve that inconsisten t result. ); Woodfield v . W. R iver Improve men t Ass 'n, 165 Md. App. 700, 716, 866 A.2d 9 44, 954 (2005 ). Ali furthermo re, is not akin to th e case at ba r and its guidelines are not instr uctive f or this C ourt. In Ali, the defendant set out to mu rder two in dividuals execu tion-style. Id. at 298, 550 A.2d at 926. One of these victims, Debbie Waligora managed to escape, id. at 299, 550 A.2d at 927, and becam e the prin cipal w itness fo r the Sta te. Id. at 300, 550 A.2d 927. While in the hospital Waligora gave the police th ree sep arate an d, in par t, incons istent stat emen ts. Id. at 307-308, 550 A .2d 931 . At trial, in an ef fort to expla in the incon sistencies, the S tate called the doctor who had treated Waligora upon her arrival a t the hos pital, id., producing the following colloquy: [PROS ECUT OR]: Do you have an opinion within a reasonable degree of medical certainty as to what, if any, side effects the two drugs being given together in those dosage s at those times would h ave on Mrs. [W aligora]? [DR.SCHNEIDER ]:Yes, I do. [PROS ECUT OR]: Could you give us that please, Doc tor? [DR.SC HNEID ER]: There are multiple potential side effects to these drugs. One is nausea and vomiting. The second is respiratory dep ression. Th ird is increased s leepiness o r drowsin ess. And f ourth is a lack of comp lete ability to respond coherently to questions. [DEFENSE CO UNSEL]: Objection. [TH E CO URT ]: Over ruled. 15 Id. at 309, 550 A.2d at 932. Rejecting the defendant s argument that the trial judge s refusal to exclude the doctor s testimony was error, this Court concluded that, although the prosecutor s . . . last question strayed from the tra ck establishe d by the court. The doctor s answer did not. The objection to the question was properly overru led. * * * The prosecuto r's final question went off track beca use he ask ed wha t side effects the drugs w ould have had on W aligora, rather than asking what side effects were known with reasonable probability to occur to a person such as Waligora. The doctor did no t respond directly to the question, but answered only by stating that there are multiple side effects to the drugs, and naming four such side effects. The doctor's answer was entirely proper, and within the correct guidelines established by the trial judge. Notwithstanding the wording of the prosecutor's question, the answer did not suggest that the doctor was giving an opinion th at W aligo ra ha d in f act suffered any of the known side effect s. Id. at 309-310, 550 A.2d at 932. From this holding, the majority assumes that, in situations where a testimonia l question is found to be imp roper, the witness's response can be considered separately and properly admitted. In Ali, the line of questioning was designed to get at the root of the inconsistent statements previously made by the victim. Specifically, the testimonial question was meant to establish the s ide effects o f certain dru gs on W aligora, not to p rove the ultimate issue. Unlike the case at bar, the doctor s testimony addressed neither the defendant s actions nor the defen dant s in tent. Courts cannot divorce the testimo nial question from the resp onse. The purp ose of a response is to answ er the qu estion a sked. Accordingly, both the que stion and the answ er are 16 important and they are interrelated. Moreover, both the question and the answer are evidence. See e.g. Sippio v. S tate, 350 Md. 633, 641 -642, 714 A.2d 86 4, 868-86 9 (1998); see also Lucas v. State, 116 Md. App. 559, 574-76, 698 A.2 d 1145, 1 152-115 3 (1997); Bell v. State , 114 Md. App. 480, 488, 691 A.2d 233, 237-238 (1997); State of Iowa v. Dinkins, 553 N.W.2d 339, 340 (Iowa Ct. App. 1996); State of C onnecticu t v. Camp bell, 225 Conn 650, 655, n.6, 626 A.3d 287, 290, n.6. (Conn. 1993). Indeed, it is appropriate to ask: of what relevance is an answer without a question o r when th e question is irrelevant or inappropriate? An answer in a vacuum and w ithout co ntext is s imply and largely m eaning less. Furthermore, as a matter of trial practice, when the question is objected to and the objection is sustained, as often is the case, the answer the witness would have provided is not permitted. This is because it, being dependent on the question, has no better claim to be heard; it would be inadmissible, as well. Similarly, when the court, upon reflection, after it has been answered, determine s that a ques tion is improp er, it instructs the jury to disregard both the question and the answe r. By parity of reaso ning, wh en an app ellate court de termines tha t a question allowed b y the trial court w as improper , the impropriety which made the question improp er and, th us, inad missible , likewis e rende rs the an swer im proper and ina dmissib le. Moreover, the majority overlooks that the rules serve as a means to limit exposing the jury to unfairly prejudicial evidence. To separate the question from the answer for purposes of review does not acknowledge that, at the time the question was asked and subseque ntly answered, the jury did not hear the answer in a vacuum. The jury heard the question followed 17 by an answer. We also must assume that its deliberations proceeded on that basis and, in the process, the jury took both the question and the answer into consideration. C. That the petitioner s name was not used d uring Sgt. McDonough s testimony is not dispositive Sgt. McDonough, to be sure, did not expressly refer to the petitioner by name when responding to the prosecution s question. The ma jority opines that h is answer d id not cross the line established by MRE 5-704(b), either because he did not m ention the petitioner s name or because the reference to the petitioner was not specific enough to permit the trier of fact to infer that the prosecuto r was add ressing spe cifically the petitioner s inte nt. The m ajority states: [a]s was the situation in Gonzales, supra Sgt. McDonough never directly and unequivo cally testified to [A ppellant s] m ental state; he n ever stated d irectly that [App ellant] had the intent to distribute. Gauvin, __ Md. at ___, ___ A.2d at __ [slip op. 13](quoting Gonzales, 307 F.3d at 911. The majority then holds, Sgt. McDonough s opinion was based upon his knowledge of common practices in the drug trade, rather than on some specia l familiarity with the workings of [Appellant s] mind. Gauvin , __ Md. at ___, ___ A.2d at __ [slip op. 13](quoting Lipscomb, 14 F.3 d at 124 3). The majority s focus on wheth er Sgt M cDono ugh used the petitioner s name in h is response distracts it from Rule 5-704 and the Rule s purpose. A police officer, qualified as an expert witnesses, is permitted for the benefit of the trier of fact to express opinions derived from his or her profession al experien ce and train ing, as exac tly that - generalized observations 18 based o n back groun d. See People v. Wright, 283 A.D .2d 7 12, 7 13 (N .Y. A pp. D iv. 3d Dep 't 2001) ( We conclude that County Court properly allowed the officers to express opinions, based on their experiences as narcotics officers, as to whether they had ever encountered a mere user of narcotics--as disting uished fro m a seller . . . . ); see also State v. Dinkins, 553 N.W.2d 339, 342 (Iowa Ct. App. 1996)(citing, State v. Olsen, 315 N.W.2d 1, 7) (Iowa 1982)) ( [A]n expert witness is permitted to express an opinion as to whether the facts of the case fit the profile of a person w ho sells drugs. ). In drug ca ses, this is usually limited to expressing opinions that will help the trier of fact to understand packaging, manufacturing and drug use generall y. Police officers, and other expert witnesses alike, therefore, ar e not perm itted to testify as to the defendant's guilt or innoc ence or his or her intent. An officer s opinion on whether the defendant possessed the intent to co mmit a crim e is inadmiss ible. Md. R ule 5-704. See People v. Wright, 283 A.D.2d 712, 713-714 (N.Y. App. Div. 3d Dep't 2001) ( [I]it was error for the cou rt to allow the experts to take the next step and express their opinion that the quantity of cocaine found in defendant's possession indicated that he w as a seller . . . . ); Dinkins, 553 N.W.2d at 341(citing, State v. Ogg, 243 N.W.2d 620, 621) (Iowa 1976)) ( it was improper for a police officer to express his opinion that the quantity of drugs defendant possessed would be more than would be considered for personal use. ). While courts hav e acknow ledged tha t the line betw een testifying g enerally to provide background, as oppose d to speak ing to the specifics of the case is a fine one and often difficult to naviga te, see Dinkins, 553 N.W.2d at 341( A fine line often exists between opinions which 19 improper ly express guilt or innocence in cases involving specific intent crimes and those which properly com pare or ch arac teriz e the defe ndant's conduct based on the facts of the case so as to assist the jury in understanding the evidence or to determine a fact in issue. This fine line is especially apparent in cases where the fighting issue is whether the accused possessed drugs with the intent to se ll. This is becau se the quality and quantity of drugs, the manner of packaging, the manner of secretion, the presence of drug paraphernalia, and many other circumstances may reflect whether drugs are possessed for personal use or for distribution. ), comp liance is impera tive for the def endan t to have a fair tria l. When applying Md. Rule 5-704, Maryland courts, similar to its sister states, take into account the purpose of the rule. T he purpose is defea ted if the rule is applied too narro wly. Certainl y, the Rule is violated whenever the petitioner is the subject of a question or answer addressing his or her intent. Then, the testimony doe s not provide general inf ormation; rather, it is no more than spec ulati on about that defe ndant's m enta l state . Eve n wh en th e pet ition er's name is not used or the petitioner is not referenced, there still may be a violation o f Md. R ule 5-704. That occurs when the facts posited so closely mirror the facts of the case on trial that it is all but impo ssible for a trier of fact to separate the facts of the case from the hypothetical ones posed by the pro secuto r. Both the direct and indirect approach present the same problem and ultim ately usur p the ro le of the trier of f act in vio lation of Md. R ule 5-7 04. The Connecticut courts ha ve so held. In Campbell, the defend ant was c harged w ith crimes of possession of narcotics with intent to sell by a person wh o is not drug -depend ent, 20 possession of a wea pon in a moto r vehicle , and crim inal imp ersona tion. 225 Conn. at 651-652. During th e trial, the follow ing colloqu y occurred: "'[The State]: Officer . . . based on your training and experience and the undercover work you have done, your surveillance work you have done, the arrests you have made in your narcotics capacity as a statewide officer and such, if the vials, the 119 vials which were found on the defen dant, based upon your opinion, is that used for personal use, or is that package d with the p ossession w ith the intent to se ll? "[Offic er Eason ]: That wo uld be pos session w ith intent to sell. "[The State]: Wh at is the norm al standard f or someo ne just posse ssing, simple possession? "[Officer Eason]: One, two, maybe three. *** "[The State]: Not 119? "[Of ficer E ason]: N o. Not 1 19." Id. at 654, n.6, 626 A.3d at 290, n.6. The defendant was convicted of possession of narcotics with intent to sell and sen tenced to a 20-yea r term o f impris onme nt. Id. at 652. He argued, on appeal, that the expert witness should not have been permitted to testify to his opinion on the ultimate fact of whether the defen dant posse ssed the na rcotics with th e intent to sell or f or his personal consumption. Id. at 656. The co urt agre ed. Id. at 652. In so doing, the cou rt considered only the prosecutor s question and the answer it elicited. It is significant that the defen dant s n ame w as not m entione d, either i n the qu estion o r the ans wer. Id. at 654, n.6. State v. White, 450 So.2d 648 (La.1984) is to like effect. In that case, the defendant was 21 charged with po ssession of hero in with intent to distribu te. Id. at 648. The State called an expert witness in packaging and distribution of controlled dangerous substances and the following colloquy occ urred: MR. L'HOSTE: This is a hypothetical question. If someone is standing on the corner of London and Dorgen ois with a matchbox which contained twenty seven foils of heroin, in your pro fessional opinion, what is the probability - what is the purpose of him standing there with that match box of heroin . . . WITNESS: In my opinion, a person standing on the street corner w ith a matchbox containing say twenty-seven tin foils containing heroin, would be there for the p urpose of sellin g or distr ibuting . Id. at 649. The defendant was convicted and subsequently challenged, on appeal, the admissibility of this expert testimony. The c ourt first com pared the c ase unde r review to previously de cided case s: In State v. Wheeler, 416 So. 2d 78 (La. 1982), this Court held that the testimony of a narcotics officer in response to a hypothetical question was in fact an expression of opinion as to the defendant's guilt and constituted reversible error. The expert in Wheeler was given a detailed hypothetical paralleling the actual fact situation produced at trial, in which the defendant was apprehended on a street co rner, holding a grocery bag containing ten coin envelopes full of marijuana. He was then asked: Q. In your expert opinion what is the likelihood of this individual being involved in the distribution of marijuana? A. In my opinion the person would be involved in the distribution of marijuana, he might have a dime bag, but not several dime bags and he would not have $350.00. 416 So. 2d 78, 79. This court found that the officers ' testimony "was tantamount to an opinion that the defendant was guilty of the crime charged an issue over which the officer was no more expert than the jurors, 416 So. 2d at 22 81. In State v. Montana, 421 So. 2d 895 (La. 1982), the defendant was arrested with his girlfriend for possession of heroin w ith intent to distribute. The officer testifying as an expert in drug trafficking was asked whether in his opinion, if a male and female were arrested, the male carrying $470.00 in cash and th e female holding tw o balloons filled with heroin, the tw o were p lanning to distribute the heroin. Again, the facts in the hypothetical were identical to the evidence of defendant's activities shown at trial. Applying W heeler, this court noted that inferences as to the ultimate issue of defendant's guilt are for the jury alone to determine, and held that the court's admission of the expert's opinion testimo ny constitu ted reve rsible err or. 421 So. 2d at 900. Id. at 650. It then concluded: Comparing the present case with the Montana and Wheeler decisions, we find nothing which would distinguish the instant case and permit the testimony of Officer Peralta. The hypothetical factual situation posed by the State w as virtually identical to the actual evidence produce d at defen dant's trial. By stating that in h is opinion, a person standing on a street corner with 27 foils of heroin was there for the purpose o f selling narc otics, Offic er Peralta was usur ping the ju ry's function as finder of fact. Id. at 650- 651. Massac husetts courts treat this issue similarly. In Commonwealth v. Tanner, the defendant was convicted of two separate counts of distribution of a controlled substance. 45 Mass. App. Ct. 576, 579-580 (Mass. App. Ct. 1998). The defendant appealed this conviction, asserting that the testifying police officer was permitted improperly to give his opinion on her guilt. See Id. at 576. Over defense counse l's objection, the officer initially stated, "From my expe rience, I believed a drug transaction had taken place." Id. at 577, 580. He later testified that the actions of defendant were consistent with a drug deal. Id. at 578. With regard to whether the 23 testimony wa s properly adm itted, the appe llate court held : The real problem is the form of Feeney's testimony. As noted, he stated at one point, "From my experience, I believed a drug transaction had taken place." Later he opined that Gomes's actions were "consistent with, with the drug, the drug dealer with the drugs going into his mouth." While in the latter instance Feeney used the talismanic "consistent with" locution that both this court and the Supreme Judicial Cou rt have a pprov ed in nu merou s prior ca ses, see, e .g., Comm onwea lth v. Johnson, 410 Mass. 199, 202, 571 N.E.2d 623 (1991), the former statement is very similar to expert tes timony that w e held imp roper in Comm onwea lth v. Woods, 36 Mas s. App. C t. 950, 951-952, 631 N.E.2d 1025 (1994 ), S.C., 4 19 M ass. 366 , 375 & n.13, 64 5 N.E .2d 115 3 (199 5). Id. at 579-580. Although concluding that the testimony was improperly admitted, the court affirmed the defendant s conviction because it determined the erro r to be h armles s. Id. at 580. Dinkins, supra, 553 N.W.2d at 339, although reaching a different result with reg ard to the challenged statement, is nevertheless instructive. In Dinkins, Officer Collins, a narcotics officer, was asked by the prosecutor if the seven rocks of crack cocaine found in the plastic baggie were consistent with someone using or dealing? He answered dealing and explained, the people that we catch that are add icted, they get caught w ith one rock, certainly no more than three. You have seven rocks, it indicates a dealer. The State also asked Collins: Q: And, O fficer, if testim ony indicated that only two ite ms of evidentiary nature were taken f rom that car, State's Exhib it 1 and the money that w as found , State's Exhib it 2, no smoking devices, nothing else to indicate that the crack was being used, would that indicate anything to you? A: That they are dealing. A crack addict won't be caught without his pipe . Id. at 340. Th e defend ant was c onvicted o f possessio n with inten t to deliver a co ntrolled substance, which he app ealed arguing, amon g other things, that the officer h ad improper ly 24 been permitted to express[] an opinion of his guilt on one of the essential elements of the crime, intent to deliver. Id. at 341. Affirming the judgment of the trial court, the court reasoned: Our prior cases have both approved and disapproved of expert testimony bearing on the issue of possessing drugs for personal use or for distribution. In Oppedal, the Iowa supreme court determined it was improper to permit a witness to give an opinion that a quantity of drugs was possessed by the defendant with intent to deliver. Oppedal, 232 N.W.2d at 524. The court reasoned such an opinion was tantamount to an opinion as to the ultimate fact of defen dant's gu ilt or inno cence . Id. Similarly, in State v. Ogg, the court concluded it was improper for a polic e officer to express his opinion that the quantity of drugs defendant possessed would be more than would be considered for per sonal u se. State v. Ogg, 243 N.W.2d 620, 621 (Iowa 19 76). In State v. Nimmo, the court again rejected opinion testimony regarding the intent with which the defen dant po ssessed quant ities of d rugs. State v. Nimmo, 247 N .W.2d 228, 23 0 (Iow a 1976 ). See also State v. Vesey, 482 N.W.2d 165, 167 (Iowa App. 1991) (improper to express opinion that drugs were distributed from defendant's residence). On the other hand, an expert witness is permitted to express a n opinion as to whether the facts of the case fit the profile of a person who sells drugs. State v. Olsen, 315 N.W.2d 1, 7 (Iowa 1982). This type of opinion differs from the opinions expressed in Oppedal, Ogg, Nimmo, and Vescy because it does not specifically relate to the defen dant. Instead , it is an opinion that the evide nce in the case is consistent with selling drugs, and is properly admitted as a comp arison f or the ju ry, not an o pinion of guilt. Id. In this case, the testimony of Officer Collins did not constitute an opinion of guilt of the defendant or that the de fendant p ossessed d rugs with th e intent to sell. Neither the questions asked of Collins or the answers given to those questions related specifically to Dinkins. They also did not imply the violation of a statute by the use of statutory language, or include so much evidence that it necessarily referred to the defendant. Instead, the questions were bas ed only on the evidence bearing on the activities of drug dealers. . . . The State may not ask whether an expert has an opinion or believes the defendant is guilty of the crime, or possesse d drugs fo r sale as opp osed to 25 personal use. State v. Oppedal, 232 N.W.2d at 524. The State may properly ask a qualified expert, however, whether the particular facts of the case, stemming from the expert's field of expertise, would be characterized as drug dealing or drug co nsump tion. See State v. Odom, 560 A.2d at 1207. Id. at 341-42. Acknowledging that there is a difference between a general question and answer and one with facts particular to the case being reviewed, Iowa courts, therefore, focus on whether the opinion offered specifically relate[s] to the defendant. Id. at 342. In this case there was specific reference not only to the petitioner but also to other specifics of the case. The prosecutor asked Sgt. McDonough to form an opinion based on the review of the evidence that w as seized in this case and . . . observ ations regard ing the testimony of the witnesses here today[.] Within the constraints of the question posed, Sgt. McDonough gave his opinion that the drugs were possessed with intent to distribute. By permittin g the op inion, th e court v iolated M d. Rule 5-704 . D. Sgt. McDonough s response to the prosecutor s question should be stricken pursuant to 5-704(b). I agree with the majority that the prosecutor s question was violative o f Rule 5-704 (b). It properly conc ludes: the C ircuit Court sh ould have sustained th e objection to this question on the ground that no expert is entitled to express the opinion that the defendant possessed a controlled dangerous substance w ith the intent to distribute it. Gauvin , __ Md. at ___, ___ A.2d at __ [slip op. 13 ]. The majority erred, however, by not reviewing Sgt. McDonough's response to the pros ecut or's question in light of the question aske d. Sg t. Mc Don ough's answer w as tailored to 26 the prosecutor's question which sought to elicit a respon se with regard to the petitioner s inte nt. During Sgt. McDonough's testimony, the following colloquy occurred: [THE PROSECUT OR]: 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? [SG T. MC DON OUG H]: Y es, I hav e. [THE PROSECUT OR]: And have you had the occasion here today to hear the testimony of the witn ess who have com e before you today in conn ection with this matter? [SG T. MC DON OUG H]: Y es, I hav e. [THE PROSECUT OR]: And based upon 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 hav e the ability to form an opinion as to whether or not the P CP that w as seized from Ms. Gauvin on December 15th, 2006 was for her personal consumption or for distribution. [SG T. MC DON OUG H]: Y es, I wa s able to form a n opini on. [THE PROSECUTOR]: And what is that opinion? [DE FEN SE C OUN SEL] : Objec tion, Yo ur Ho nor, just f or the re cord. [SGT. M CDON OUG H]: That the am - [TH E CO URT ]: Certai nly. Ove rruled. [DE FEN SE C OUN SEL] : Than k you. [MCD ONO UGH ]: That the am ount wo uld indicate to m e that it was possessed with in tent to di stribute. I would base th at on dif ferent f actors. Sgt. McDonough, at the direction of the prosecutor, answered a direct question about petitioner s intent in poss essing P CP. In doing so, he made no reference to common practices. 27 Sgt. M cDon ough d id, how ever, ad dress th e intent o f petition er in vio lation of 5-704 (b). The prosecutor questioned Sgt. McDonough about whether he was able to form an opinion as to whether or not the PCP seized from Ms. Gauvin . . . was for her personal consumption or for distribution. After the prosecutor instructed Sgt. McDonough to focus on petitioner and her case, the prosecutor then more spe cific ally fo cuse d Sg t. Mc Don ough's frame of reference: And based upon your review of the evidence that was seized in this case and . . . your observations regarding the testimony of the witnesses, (emphas is added), in the court at the time of trial. In answering this question, Sgt. McDonough stated: Yes, I w as able to form an opinion . Sgt. Mc Donou gh, then resp onded, th e amoun t would in dicate to me it was possessed with intent to distribute. The prosecutor did not ask Sgt. McDonough whether the amount found was consistent with common practices in the drug trade Gauvin, __ Md. at __, ___ A.2d ___ at [slip op. 13], nor did Sgt. McDonough deviate from the question asked. Sgt. McDonough's response was clear: his reference to the amount, referred back to the pros ecut or's mention of the amount seized from Ms. G auvin. Sgt. McD onough affirmative ly stated the amount was possessed with the in tent t o dis tribu te. N ot un til Sg t. Mc Don ough's followin g sentence - I w ould base that on diff erent factor s - did he se ek to supp ort this improp erly offe red con clusion with hi s backg round and ex perienc e in the f ield. It is n ot dispositive that Sgt. McDonough later explained to the court the basis for his conclusion that the drugs were possessed with intent to distribute. The damage was done at the point when Md. R ule 5-7 04 wa s violate d and th e testimo ny was n ot stricke n. 28 I would strike both the question and the answer as usurping the role of the trier of fact and violative of Maryland Rule 5-704(b). I would reverse. Judge Greene authorizes me to state that he joins this dissenting opinion. 29
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