Ragland v. State

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In the Circu it Court for M ontgom ery County Case No. CR 97541 IN THE COURT OF APPEALS OF MARYLAND No. 52 September Term, 2004 JEFFREY LOUIS RAGLAND, JR. v. STATE OF MARYLAND Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinio n by Rak er, J. Filed: March 18, 2005 Appellant Jeffrey Ragland was convicted of distribution of a controlled dangerous substance in violation of Md. Code (2002, 2003 Cum. Supp.), § 5-602 of the Criminal Law Article. At trial, two police officers offered lay opinion testimony, based on their training and experienc e, that a particular series of events had constituted a drug transaction. Ragland appeals, arguing tha t such evide nce shou ld only have b een adm itted as expert testim ony, subject to the accom panying qua lification and discovery procedures. We agree, and according ly we shall vac ate the conv iction and re mand the case for a n ew trial. I. On the eve ning of Marc h 18, 2003, members of the Montgomery County Police Special Assignment Team (SAT) observed witness Paul Herring, a man known to them from a prior drug arrest, make a call from a pay telephone at a Crown gas station in the Aspe n Hill area of Mo ntgomery C ounty. Follow ing this telephone call, Herring was observed returning to his van, in which he traveled a short distance to N orthwest D rive, paused for a mom ent, and then drove to an Exxon gas station where he made another short call from a pay telephone. Officers then observed Herring return to Northwest Drive, where a hand-to-hand transaction took place between Herring and the passenger of a yellow Cadillac which had parked on Northwest Drive during the interim between the two phone calls. The evening was dark, and no officer was able to see either the face of the Cadillac passenger or the nature of any items that ind ividual had exchang ed with H erring. Off icer Mich ael Bledso e was ab le to discern tha t the Cadillac passenge r was w earing a ha t. Both Herring s van and the Cadillac then left the area. Members of the SAT team stopped Herring s van and forced him to the ground. On the ground nearby, they recovered a small objec t which the y suspected to be crack cocaine. Other members of the team stopped the yellow Cad illac and arres ted its three oc cupants, inc luding App ellant Jeffrey L ouis Ragland. Ragland had been seated in the front passenger position, and was wearing a multicolor beret. 1 The police searched Ragland and they seized a folding pocket knife clipped to his belt, $24 in cash in his left front pants pocket, and $35 in cash in his right front pants pocket. No drugs or drug paraphernalia were found in the car or on Ragland s person, and, despite following the Cadillac closely from the scene of the exchange to the scene of Ragland s arrest, no off icer observed any item throw n from the car. Police seized two cellular telephones from the car. Detective Kenneth Halter later learned from telephone records that one of these cellular telephones had received both a ninety-five second call from the pay telephone at the Crown station, and a thirty-five second telephone call from th e pay telephon e at the Exx on station. T he times of these calls corresponded to the approximate times at which officers had observed Herring place telephone calls from those locations. 1 No evidence was introduced at trial as to whether either of the other two occu pants was w earing a hat. -2- Ragland was indicted by the Gran d Jury for Montgo mery County and charg ed with distribution of a controlled dangerous substance, to wit, cocaine. At trial, the State called Officer Bledsoe a s a witness. T he State ha d not notif ied the defense that B ledsoe w ould testify as an expert witness, nor did it proffer Bledsoe as an expert. The Court did not make any finding as to whether any testimony Bledsoe might offer would satisfy the requireme nts of Maryland Rule 5-7022 or the standards of Frye v. United States, 293 F. 1013 (D .C. Cir. 1923), as adopted in Reed v. Sta te, 283 Md. 374, 391 A.2d 364 (1978). Officer Bledsoe testified as follows: [PROS ECUT OR]: And have you received any training in investigation of drug crimes? [OFC. BLEDSOE]: Yes. Several drug recognition courses and training at the police academy, and several seminars. [PROS ECUT OR]: And what s the most recent seminars that you ve been to? [OFC. BLEDSO E]: A narcotics instructor, who actually was a retired Montgomery County police officer and a narcotics detective, put on a drug school ap proximate ly a year ago at the train ing a cade my. 2 Md. Rule 5-702 provides as follows: Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the ex pert testimo ny. -3- [PROS ECUT OR]: And that s her e in M ontg ome ry County; right? [OFC. BLED SOE]: Yes. [PROS ECUT OR]: And you m entioned th at you ve been with [the SAT] for a bout two and a half years. Have you had any other assignments within the police department related to drug investigations? [OFC. BLED SOE]: Y es. During the fall of 99, I did a temporary assignment in our narcotics section for 90 days, approxim ately three months, and then in the spring/summer of year 2000 an additional 90-day temp with the narcotics unit. After Bledsoe te stified to his observations of the hand-to-hand transaction, the following ensued: [PROS ECUT OR]: Based on your training and experience and this is a yes or no question was the activ ity that you observed in the street ther e at Northw est Drive o f significance to you? Just yes or no. [OFC . BLE DSO E]: Ye s. [PROSECUTOR]: And what did you believe had occurred? [DEFENSE COUN SEL]: Objection , Your Honor. May we approach? THE CO URT: Yes. (Whereupon , a bench conferen ce follows:) [DEFENSE COUNSEL]: Your Honor, I ve not received any notice that anyone other than the chemist is testifying as an expert. What the State is trying to elicit is an opinion based upon training and experienc e in narcotic in investigating narcotic s crime s. -4- THE COURT : Well, he s not he s asking him an opinion question, I think. Mr. [Prose cutor] [PROS ECUT OR]: Yes. It s not an expert opinion. That s what we elicited at the start, is th at he brings to this like a m echanic who works on Mercedes, brings special knowledge about Mercedes. He brings special knowledge about drug deals and what these things bring. So I m asking him what s his opinion of wh at occu rred. THE COU RT: I m going to permit the answer over objection. (Whereupon , the bench conferen ce concluded.) [PROS ECUT OR]: Officer, can you give us your opinion of what occ urred on th at deal or on that encou nter on the s treet? [OFC. BLEDSOE]: In my opinion what occurred was the drug transac tion. [PROSECUTOR]: And that opinion is based on what? [DE FEN SE C OUN SEL] : Objec tion. THE COU RT: O verrule d. [OFC. BLEDSOE]: Based on two temporary assignments in a narcotics unit; two an d a half years w ith this unit; involved in well over 200 drug arrests. And many times when we arrest these people we obtain [DE FEN SE C OUN SEL] : Objec tion. THE COU RT: S ustaine d. [OFC . BLE DSO E]: Ok ay. [PROS ECUT OR]: In the course of your work I approached you about this m atter earlier bu t in the course of your wo rk in -5- your temporary assignment within the narcotics division, did you, yourself, participate in arranging purchases of drugs? [DE FEN SE C OUN SEL] : Objec tion. THE COU RT: O verrule d. [OFC . BLE DSO E]: Ye s. [PROS ECUT OR]: Any similarities to what you observe d on this evening to what you, yourself, did in your role with the narcotics division? [DE FEN SE C OUN SEL] : Objec tion. THE C OUR T: Okay. I m going to su stain that. [PROS ECUT OR]: Thank you, You r Honor. I believe that s all the que stions I h ave at th is time fo r him. The State called Detective Kenneth Halter as a witness. Halter was never proffered or qualified as an expert witness, nor did the court make findings under Rule 5-702. Over defense objection, the State elicited testimony about Halter s training and experience in the investigation of narcotics cases. According to Halter, he had earned a degree in criminal justice, had attended Police Academy courses and numerous seminars, and had participated in over 250 drug arrests and investigations. The following then transpired: [PROS ECUT OR]: Why were you interested in the yellow Cadillac? What did you believe h ad occurred while on Northwest Drive? [DEFENSE CO UNSEL]: Objection. THE CO URT: What is the basis? -6- [DEFENSE COUNSEL ]: I think it calls for it is reference to hearsay and it is THE COURT: It is not a hearsay objection. I will caution the jury, but it is admissible. [DEFENSE COUNSEL ]: Your Honor, I think he also may we approach? THE COU RT: No. Just tell me your reason. [DEFENSE COU NSEL ]: Your H onor, he did not person ally observe a nything that THE COU RT: I kno w that. It is based on hearsay, but it is admissible. [DE FEN SE C OU NSE L]: It is ba sed o n hearsa y. THE COU RT: O kay. Ladies and gentlemen, the testimony the witness is about to offer is information he learned from someone else. However, it forms the basis upon w hich he too k his actions. In other wo rds, why he d id what he did. You are to receive the testimony simply because it forms the basis of why this particular witness took actions, not for the truth of whether or not what he d escribes actu ally took place b ut only becau se it forms the basis or impetus for him to act. Next question. [PROSECUT OR]: Your Honor, actually, THE COU RT: You may continue this question. [PROS ECUT OR]: What I am asking for is under 5-701, an opinion of a lay witness. Th at is what I am asking f or. THE C OUR T: I have a lready ruled on that. -7- [PROS ECUT OR]: Detective, in your opinion, what occurred on that street? [DET. HALTER]: I believe that a drug transaction had occurr ed. The State also called Paul Herring as a witness at trial. 3 Herring testified that he had telepho ned R agland , whom he kne w as J , and arrang ed to meet him on Northwest Drive for the pur pose o f purch asing c rack co caine. He identified Ragland as the man he knew as J and as the man he had met on Northwest Drive that evening. He testified that Ragland had broken off a small rock of crack cocaine from a larger rock, and had sold Herring the smaller rock. Herring admitted to having prev iously falsified a police report in Prince G eorge s Cou nty. In that incident, Herring had claimed to have been the victim of an armed carjacking because he wanted police assistance in recovering a car he had lent to a drug dealer. On cross-examination, Herring acknowledged that he didn t have a problem with lying to get what he wanted. In his closing argument, the prosecutor referred to nine pieces of evidence which he suggested demonstrated Ragland s guilt. He then argued: What is the last factor that supports all of these things coming together to show that the defendant in this case is guilty of a drug transaction is the knowledge and the training and the experienc e that these p olice office rs brough t. 3 Herring entered into a plea agreement with the State, under which he would receive a sentence of probation for possession of a controlled dangerous substance in exchange for his testim ony at the trial of R agland . -8- *** You heard those officers testify they believed a drug deal occurred because of all these factors. Taking all ten of these factors together, I sub mit to you that the evidence is overw helmin g that thi s was a drug d eal. Ragland was convicted of cocaine distribution, and sentenced to a term of fifteen years incarceration , all but eight years suspended, followed by five years supervised probation. He noted a timely appeal to the Cou rt of Specia l Appeals . Before th at court cou ld consider the case, we issued a Writ o f Certio rari on o ur ow n initiativ e. Ragland v. State, 382 Md. 688, 856 A.2d 724 (20 04). II. Before this Court, Ragland argues that when the detectives testified that they believed the events in question constituted a drug transaction, they expressed expert opinions. He contends that their testimony was inadmissible because the State had not identified Bledsoe and Halter as experts pre-trial, had not provided appropriate discovery under Md. Rule 4263(b)(4), 4 and ha d not qu alified th em as e xperts a t trial purs uant to M d. Rule 5-702 . 4 Md. R ule 4-263 , Discover y in circuit court, pro vides, in pertin ent part: (b) Disclo sure up on requ est. Upon request of the defendant, the State s Atto rney shall: * * * (4) Reports o r statements of experts. Produce and permit the defen dant to inspe ct and cop y all written reports or statements made in connection with the action by each expert consulted by the (contin ued...) -9- The issue presented in this case lies at the intersection of two Maryland evidentiary rules governing opinion testimony. That issue is as follows: Where a witness has first-hand knowledge of the events that form the subject of his or her testimony, may the w itness offer, as lay opinion testimony, opinions formed about those events based on specialized knowledge, skill, experience, training, or education? Ragland argues that Bledsoe and Halter s testimony characterizing the nature of the transaction that they had viewed as a drug transaction was expert testimony and that the trial cou rt erred in admittin g the tes timony as lay opinio n testim ony. We agree. Under Maryland R ule 4-263 (b), upon re quest of the defenda nt, the State must disclose to the defendant the name and address of each person the State intends to call as a witness at trial to establish its case in chief or to rebut alibi. Also, upon request, Rule 4-263(b)(4) requires the State to produce and permit a defendant to inspect and copy all written rep orts or statements made in connection with the action by each expert consulted by the State and furnish the defendant with the substance of any oral report and conclusion. The purpose of this Rule is to assist the defendant in preparing his or her defense, and to protect the defendant from s urprise. Hutchins v. State, 339 Md. 466, 473, 663 A.2d 1281, 1285 (1995). 4 (...continued) State, including the results of any physical or mental exam ination, s cientific test, experiment, or comparis on, and furnish the defendant with the substance of any such oral report and conclusion. -10- Maryland Rule 5-702, Testimony by experts, provides as follows: Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual bas is exists to suppo rt the exp ert testim ony. Maryland Rule 5-701, Opinion testimony by lay witnesses, provides as follows: If the witness is not testifying as an expert, the w itness s testimony in the form of opinion s or inferen ces is limited to those opinions or inferences which are (1) rationally based on the perception of the witn ess and (2) h elpful to a clear understanding of the witness s testimony or the determination of a fact in issue. The language of the two Rules thu s divides the universe o f opinion te stimony into tw o categories, ea ch bearing restrictions that th e other doe s not. Expert opinion testimony is testimony that is based o n specialized knowle dge, skill, experience, training, or education. Expert opinions need not be con fined to m atters actually perceived by the witness. Lay opinion testimony is testimony that is rationally based on the perception of the w itness. The United State Court of Appeals for the Third Circuit offered a helpful explanation of lay opinion testimony in Asplundh Mfg. Div. v. Benton Harbor Eng g, 57 F.3d 1190 (3rd Cir. 1995), a case cited favo rably in the Ad visory Com mittee s note to the 2000 a mendm ent to Fed. R. Evid. 701, discussed infra. The court stated as follows: The prototypical example of the type of evidence contemplated by the adoption of Rule 701 relates to the appearance of persons -11- or things, identity, the manner of conduct, competency of a person, degrees of light or darkness, s ound, size, w eight, distance, and an endless number of items that cannot be described factually in words apart from inferences. . . . Other examples of this type of quintessential Rule 701 testimony include identification of an individual, the speed of a vehicle, the mental state or responsibility of another, whether another was h ealthy, the value o f one s proper ty. Id. at 1196-98. This bisection is imperfect, however, because at least one class of op inions poten tially falls within both categories. A witness who has personally observed a given event may nonetheless have developed opinions about it that are based on that witness s specialized knowledge, skill, experience, training, or education. The question then becomes whether the fact of personal observation will permit admission of the opinion by a lay witness u nder Ru le 5-701, or whether the expe rt basis of the opinion will require compliance with Rule 5-702 and adm issio n as e xpert testimo ny. We addressed the issue of lay witness testimony in Robinso n v. State, 348 Md. 104, 702 A.2d 741 (1997), and held that the trial court had abused its discretion in permitting police officers to testify that a substance observed by them was in fact cocain e. Id. at 129, 702 A.2d at 753. We reasoned that, based on their training and experience, the troopers drew the common sense inference that the substance Robinson swallowed looked like crack cocaine. The furth er conclusio n expresse d by the troopers that the substance was in fact cocaine was not rationally and reasonably certain because the visual characteristics of crack cocaine are not unique to that substance alone. Our holding was based on our conclusion that -12- the opinions did not satisfy the requirements of personal knowledge, rational connection, and helpfulness to the trier of fact as set out in Rule 5-701. Id. at 121, 702 A.2d at 749. Our reasoning in Robinson appears to have proceeded from the premise that lay opinion testimony could properly be based on the specialized knowledge or experience of the witnesses. In expressing this proposition, we relied on four M aryland c ases. See Ricks v. State, 312 Md. 11, 31-32, 537 A.2d 612, 621-2 2, cert. denied, 488 U.S. 832, 109 S. Ct. 90, 102 L. Ed. 2d 66 (1988) (permitting police detective to identify individuals on surveillance tape as defendants); 5 Scott v. Hampshire, 246 Md. 171, 176-77, 227 A.2d 751, 754 (1967) (permitting former naval construction worker to offer lay opinion as to safety of various methods of crane operation, based on prior experiences and observations in the operation of cranes); Ager v . Baltimore Tr ansit, 213 Md. 414, 419-20, 132 A.2d 469, 472 (1957) (permitting experienced ambulance attendant to offer lay opinion testimony that accident victim was fe igning inju ry); Tu v. State, 97 Md. App. 486, 500-01, 631 A.2d 110, 117 (1993), aff d on other grounds, 336 Md. 406, 648 A.2d 993 (1994) (permitting police detective to offer opinion on meaning of blood spatter pattern, based on training and experience investigating gun homicides). With reference to Ricks and Tu, we stated: 5 In retrospect, our reliance on Ricks as an example of police lay opinion testimony may have been somewhat misplaced. The detective in that case made his identification of the defenda nts as the videotape was bein g show n in court. H e was testifying not so mu ch to an opinion as to his present experience of recognizing individuals based on prior contacts. His testimony was thus not based on any particular experience or expertise in identifying persons from videotapes generally, but rather upon his personal familiarity with the defendants. Indeed, the relevant portion of Ricks never m entions the wo rd opi nion, lay or otherwise. -13- 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. 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 underl ying factu al data. Robinson, 348 Md. at 120, 702 A.2d at 748-49 (citations omitted). Each of these four cases was decided before the 1994 adoption of Maryland Rules 5701 and 5-702. Implicit in the reasoning of Robinson, then, was our acceptance that Rules 5-701 and 5-70 2 had no t altered the criter ia for adm ission of lay op inions as develope d in prior case law. Later developments now cause us to revisit this aspect of Robinson. We noted in Robinson that, except for minor stylistic changes, Rule 5-701 was identical to the thencurrent Federal Rule o f Evid ence 7 01. Robinson, 348 Md. at 118, 702 A.2d at 747. Because of this identity between the two rules, judicial decisions construing Fed. R. Evid. 701 often provide persuasive authority for the inter pretatio n of M d. Rule 5-701 . See Perr y v. State, 381 Md. 138, 145 -46, 848 A .2d 631, 63 5 (2004); Beatty v. Trailmaster, 330 Md. 726, 738 n. 8, 625 A.2d 10 05, 1011 n. 8 (199 3). A review of the federal cases interpreting the relevant federal rules reveals that the question of whether a particular witness must be designated as an expert and qualified as such in order to testi fy about a particular subject has been the subject of debate and -14- disagreement among the federal courts. The more narrow view required that a witness whose testimony could be admitted as expert testimony under Federal Rule 702 must be qualified and receive d as an e xpert b efore th e testimo ny may be admitte d. See Certain Underwriters at Lloyd s, London v. Sinkovich, 232 F.3d 200, 203 (4th Cir. 2000) (holding that Fed. R. Evid. 701 doe s not perm it a lay witness to testify about m atters that are pr edicated ne cessarily on some specialized knowledge or skill or education that is not in the possession of the jurors ); Rand olph v. C ollectra matic, 590 F.2d 844, 846 (10th Cir. 1979) (holding that Fed. R. Evid. 701 does not p ermit a lay witness to ex press an op inion as to matters that are beyond the realm of common experience and that require the special skill and knowledge of an expert witness). The rationale underlying this narrow approach is that lay witnesses may testify regarding their direct perc eptions of e vents but tha t opinions o r inference s that rely on scientific, technical, or specialized knowledge must be ex cluded un less the witn ess is qualified as an expert. For example, in United States v. Figueroa-Lopez,125 F.3d 1241 (9th Cir. 1997), the court found error in the admission, as lay opinion, of a police officer s testimony that he had observed the defendant behaving in the manner of an experienced narcotics trafficker. The court reasoned as follows: The Government s argument simply blurs the distinction between Federal Rules of Evidence 701 and 702. Lay witness testimony is governed by Rule 701, which limits opinions to those rationally based on the perception of the witness. Rule 702, on the other hand, governs admission of expert opinion testimony concerning specialized knowledge. The testimony -15- in this case is precisely the type of specialized knowledge governed by Rule 702. A ho lding to the contrary would encourage the Government to offer all kinds of specialized opinions without pausing first properly to establish the required qualification of their witnesses. The mere percipience of a witness to the facts on which he wishes to tender an opinion does not trump Rule 702. *** In addition, the Government s argument subverts the requireme nts of Federal R ule of Criminal Procedure 16(a)(1)(E) [requiring discovery of expert testimony that government intends to introd uce du ring its ca se-in-ch ief]. Id. at 1246. The more liberal or broad view holds that lay witness testimony may include opinions predicated on specialized knowledge or training so long as the testimony is rationally based on the pers onal pe rception of the w itness. See, e.g., United States v. Riddle, 103 F.3d 423, 428-29 (5th Cir. 1997) (holding bank examiner s opinion that defendant had engaged in selfdealing admissible under Fed. R. Evid. 701, but nonetheless reversing on finding that examiner s other testimony about sound banking practices in the abstract exceeded scope of the Rule); Burlington N. R.R. Co. v. Nebraska, 802 F.2d 994, 1004 (8th Cir. 1986) (approving, as lay opinion, testimony of railroad executives that, in their experience, trains with cabooses we re no safer th an caboo seless trains ); Soden v. Freightliner Corp., 714 F.2d 498, 510-12 (5 th Cir. 1983) (holding tha t where ex perienced mechan ic had perso nally observed aftermath of several truck accidents, he was permitted under Fe d. R. Evid . 701 to testify to opinion that particular design feature had caused the accidents and generally was -16- dangerous); United States v. Sweeney, 688 F.2d 1131, 1145 (7th Cir. 1982) (admitting lay opinion of experienced methamphetamine user that substance in question was methamphe tamine). The issue was settled in 200 0, when Congre ss amend ed Fed. R . Evid. 701 to address expressly the concerns and debate about the meaning of the rules. Before th e amend ment, the texts of Fed. R. Evid. 701 and 702 did not address the question of whether lay witnesses could express op inions on th ose subjects that would require specialized knowledge or training. Following the 2000 amendment, Fed. R. Evid. 701 expressly states that lay witnesses may not off er testimony tha t is based on scientific, technical or other specialized knowledge within the scope of Rule 702. The Advisory Committee s note to Rule 701 states that Rule 7 01 has be en amen ded to elim inate the risk th at the reliability require ments set forth in Ru le 702 will b e evaded through th e simple ex pedient of proffering an expert in lay witness clothing. As amended, the Rule reads as follows: If the witness is not testifying as an expert, the witness testimony in the form of o pinions or in ferences is lim ited to those opin ions or infere nces which ar e (a) ratio nally based on the perception of the witness, (b) helpful to a clear understanding of the witness testimony or the determination of a fact in is sue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. (Empha sis added to in dicate new language .) The Co mmittee no te further states as follows: The amendment does not distinguish between expert and lay witnesses, but rathe r betwee n expert and lay testimony. Certainly it is possible for the same witness to provide both lay and expert testimony in a single case. The amendment makes -17- clear that any part of a witness testimony that is based upon scientific, technical, or other specialized knowledge within the scope of Rule 702 is governed by the standards of Rule 702 and the corresponding disclosure requirements of the Civil and Crimin al rules. 192 F.R.D. 34 0, 416-17 (2000 ) (citations omitted). Courts that have considered the question of whether the 2000 amendment was substantive in nature have concluded that the 2000 amendment merely clarified the correct interpretation of Fed eral Ru le 701. See, e.g., United Sta tes v. Garc ia, 291 F .3d 127 , 139 n.8 (2d Cir. 2002) (noting the amendm ent does n ot substantiv ely change Rule 701. Indeed, the amendment serves more to proh ibit the inappropriate admission o f expert opinion u nder Ru le 701 than to cha nge the su bstantive req uirements of the adm issibility of lay opinion ); People v. Stewart, 55 P.3d 107, 123 n.10 (Colo. 2002) (en banc) (noting the amendment was added to eliminate co nfusion b etween R ules 701 a nd 702 a nd to clarify the d istinction between expert and lay testimo ny). The Advisory Committee s note suggests that the use of Rule 701 to admit opinions based on specialized knowledge was expedient, and analogizes witnesses who gave such opinions to the proverbial wolf in sheep s clothing. The amendment was nece ssary, according to the Committee, to eliminate the risk that the reliability requirem ents set forth in Rule 702 [would] be evaded under some courts interpretations of Rule 701. Some scholars have also taken this view. For example, David H. Kay, David E. Bernstein, and Jennifer L. Mnookin address the issue as follows: All witnesses who testify regarding scientific, technical, or other specialized knowledge should be considered experts and -18- subject to the special evidentiary and disco very rules that ap ply to experts . Some courts mistakenly interpreted the original version of Federal Rule of Evidence 701 and state equivalen ts as allowing lay testimony on technic al issues . . . . Some co urts held that under this rule a lay witness with first-hand knowledge can offer an opinion akin to expert testimony in most cases, so long as the trial judge determines that the witness possesses sufficient a nd relevan t specialized knowledge or experience to offer the opinion. Under this interpretation, courts dodged restraints on expert opinions by calling them lay opinions . . . . However, the proper interpretation of Rule 701 and the pro per interpreta tion of ana logous sta te rules was that it did not permit a lay witness to ex press an op inion as to matters which are beyond the realm of common experience and which require the special skill and kno wledge of an expert witness. David H. Ka ye, et al., The New Wigmore: Expert Evidence § 1.7 at 39-40 (2004) (citations omitted ). The Supreme Court of Colorado considered the application of Colorado Rule 7016 as it applied to police officer testim ony in People v. Stewart, 55 P.3d 107 (Colo. 2002). The court adopted the more narrow interpretation of lay/expert witness testimony and the approach of the Federal Rules. In that case, a police officer who had not been qualified as an expert testified about the reconstruction of an automobile accident and to his opinion as 6 Colorado Rule 701 is almost iden tical, with min or stylistic changes, to Maryland Rule 5-701, and states as follows: If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferen ces which are (a) rationally based on the percep tion of the w itness and (b ) helpful to a clear unders tanding of his te stimon y or the de termina tion of a fact in is sue. -19- to how the accident occurred. The court held th at the trial court h ad abuse d its discretion in admittin g the of ficer s e xpert tes timony u nder th e guise of lay op inion. Id. at 124. The court noted that the application of Fed. R. E vid. 701 an d its state equiv alents to police officer testimony has generated muc h confusion and controversy. Following the lead of most federal courts, the court held that where an officer s testimony is based not only on her perceptions and observations of the crime scene but also on her specialized training or education, she must be properly qualified as an exp ert before o ffering testim ony that amo unts to expert testimony. Id. We think the better view in interpre ting the rule regarding opinion testimony is the more narrow one, and the view as expressed in the amended Fed. R. Evid. 701. We also agree with the C ourt of A ppeals for the Fourth Circuit and those courts that have found that by permitting testimony based on specialized knowledge, education, or skill under rules similar to Md. Rule 5-701, parties may avoid the notice and discovery req uirements of our rules and blur the distinction between the two rules. Accordingly, we will follow the approach as reflected in the 2000 amendm ent to Fed. R . Evid. 701 and hold that Md. Rules 5-701 and 5-702 prohibit the admission as lay opinion of testimony based upon specialized knowledge, skill, experience, training or education.7 7 To the extent that our language in Robin son v. S tate, 348 Md. 104, 702 A.2d 741 (1997), suggests otherwise, it is hereby disapproved. -20- III. Turning now to the testimony in the instant case, it is clear that the State sought and received opinions from Officer Bledsoe and Detective Halter that were based on those witnesses specialized knowledge, experience, and training. At the beginning of Officer Bledsoe s testimony, the prosecutor asked him to describe his training in the investigation of drug crimes. Bledsoe reported having attended several drug recognition courses and training at the police academy, and several seminars, as well as a drug school. The prosecutor asked Officer Bledsoe whether based on [his] training and experience the activity on Northwest Drive was of significance to him, and then asked what did you believe had oc curred ? Alt hough he den ied that h e was s eeking an exp ert opin ion, the prosecutor explained that Officer Bledsoe brings to this like a mechanic who works on Mercedes, brings special knowledge about Mercedes. He brings special knowledge about drug d eals and what th ese thin gs bring . Officer Bledsoe testified that [i]n my opinion what occurred was the drug transaction. Asked what that opinion was based on, Bledsoe replied, [b]ased on two temporary assignments in a narco tics unit; two a nd a half year s with this un it; involved in well over 200 drug arrests. Detective H alter similarly testified to an extensive history of training and experience in the investigation of drug cases, and gave his opinion that the events on Northwest Drive constituted a drug transaction. -21- This testimony cannot be described as lay opinion. These witnesses had devoted considerab le time to the study of the drug trade. They offered their opinions that, among the numerous possible explanations for the events on Northwest Drive, the correct one was that a drug transaction had taken place. The connection between th e officers training and experience on the one hand, and their opinion s on the oth er, was m ade explicit by the prosecutor s questioning. Such testimony should have been admitted only upon a finding that the requirements of Md. Rule 5-702 were satisfied. In admitting the testimony under Md. Rule 5-701, the trial court abused its discretion. The State contends that any error in the admission of Bledsoe and Halter s opinions was harmless. We disagree. In order for an error to be harmless, we must be convinced beyond a reasonable doubt that it in no way influenced the verdict. See Weitzel v. Sta te, 384 Md. 451, 461, 863 A.2d 999, 100 5 (2004); Dorsey v . State, 276 Md. 638, 659, 350 A.2d 665, 678 (1976). The primary witness against Rag land was Paul H erring, an impe ached witnes s, a participant in the alleged crime, and a witness te stifying pursua nt to a plea ag reement w ith a promised benefit from the State. The remaining evidence was circumstantial, and depended upon an inference that Herring had obtained his piece of crack cocaine from Ragland. T o support this inference, the State relied in large part on the police officers opinion testimony that the events on Northwest Drive had constituted a drug transaction. -22- Under these circumstances, we cannot say beyond a reasonable doubt that this testimony did not contribute to the verdict. JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMER Y COUNTY REVERSED. C A SE REMANDED TO THAT COURT FOR A NEW TRIAL. COSTS TO BE P AID BY MONTGOMERY COUNTY. -23-

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