Grady L. Lewter, etc v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Benton and Senior Judge Hodges
Argued at Norfolk, Virginia
GRADY L. LEWTER, S/K/A
GRADY LEVI LEWTER
v. Record No. 2142-93-1 MEMORANDUM OPINION *
BY JUDGE JOSEPH E. BAKER
COMMONWEALTH OF VIRGINIA MAY 9, 1995
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Dennis F. McMurran, Judge
Dianne G. Ringer, Assistant Public Defender
(John H. Underwood, III, Public Defender, on brief),
for appellant.
Marla Lynn Graff, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on brief),
for appellee.
Grady L. Lewter (appellant) appeals from his bench trial
conviction by the Circuit Court of the City of Portsmouth for
possession of heroin with intent to distribute. He contends that
the trial court erred when it permitted a police officer,
experienced in unlawful drug-transaction arrests, to testify that
the quantity of heroin in appellant's possession indicated an
inconsistency with possession for personal use. In addition,
appellant asserts that the chemical sampling method employed is
insufficient to prove intent to distribute.
We recite only the facts necessary to an understanding of
this opinion. Portsmouth Detective K. A. Snipes (Snipes), an
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
eight-year veteran of the Portsmouth Police Narcotics Unit,
arrested appellant on August 26, 1992. Seventeen glassine
packets containing a white powder substance weighing 1.2 grams,
found in appellant's possession, were forwarded to a
Commonwealth's testing laboratory where Linda Fisher (Fisher), a
forensic scientist, conducted chemical tests on thirteen of the
seventeen packets. Each of these proved to contain heroin.
Fisher testified that the method she used to perform the
test, including testing thirteen of seventeen packets, is the
generally accepted method of testing and produces results that
are 99 percent certain.
Appellant conceded that Snipes was an expert to testify in
the field of unlawful drug transactions but objected to the
following question to which Snipes was asked to respond:
[A]ssuming there were no syringes, spoons,
pipes, or anything of that nature, found on
this person and assuming further there was no
money found on this person, do you have an
opinion as to whether or not this amount
[referring to the 17 packets] is consistent
with personal use?
Snipes responded that he had never arrested a mere user that had
seventeen packets of heroin on his person at the time of the
arrest and that possession of that number is inconsistent with
personal use.
Appellant argues that Snipes's testimony constituted an
opinion as to the ultimate issue of fact when he stated that
personal possession of this quantity is inconsistent with
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personal use.
In Davis v. Commonwealth, 12 Va. App. 728, 406 S.E.2d 922
(1991), Davis was convicted by a jury of possessing more than
one-half ounce, but not more than five pounds, of marijuana with
intent to distribute in violation of Code § 18.2-248.1. The
issue stated there was "whether the trial court erred in
admitting into evidence a police officer's expert testimony that,
based on his experience, an individual's possession of 6.88
ounces of marijuana is inconsistent with personal use." The
identical argument made here was made to the Davis court.
Answering that the question was not an opinion on an ultimate
issue, the Court said:
It is well settled, however, that an expert
witness is not permitted to express an
opinion as to an ultimate issue of fact that
must be determined by the trier of fact. We
must, therefore, determine whether Detective
Lee's testimony violated this
long-established rule.
The Supreme Court of Connecticut considered
a similar issue in State v. Williams, 169
Conn. 322, 363 A.2d 72 (1975). There, the
prosecutor asked the narcotics expert
whether, in his experience, it would be usual
or unusual to find a person who is solely a
narcotics user in possession of as many as
forty-five bags of heroin at one time. The
expert replied that it would be unusual. The
court held this testimony admissible, finding
that the witness never expressed an opinion
as to the ultimate issue of fact, that is,
whether the defendant intended to distribute
the narcotics he was found to possess. Id.
at 334, 363 A.2d at 79.
We reach the same result under the facts
before us. Whether Davis was holding the
6.88 ounces of marijuana with the intent to
distribute was an ultimate issue of fact for
the jury's determination. Detective Lee's
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testimony addressed the issue of what amount
of this particular controlled substance is
characteristically held by an individual for
personal use. Under the facts presented, we
find that Lee's testimony that the amount of
6.88 ounces was inconsistent with an
individual's personal use, based on what a
user would normally buy or use at one time,
did not constitute an opinion that Davis had
an intent to distribute the marijuana found
in his house.
Id. at 731-32, 406 S.E.2d at 923-24 (citation omitted). For the
reasons stated in Davis, we find that Snipes's response was not
an opinion on an ultimate issue, therefore, it was not error to
admit it.
Appellant further contends that the evidence is insufficient
to prove that he intended to distribute the heroin. We disagree.
When appellant was arrested, he was concealing seventeen
glassine packets of heroin in his left pants leg. A total weight
of 1.2 grams of heroin was determined. Snipes testified that the
method of packaging this amount of heroin was customary in drug
distribution transactions, and possession of this amount was
inconsistent with personal use. Those facts presented a jury
issue decided adversely to appellant.
Appellant further argues that because only thirteen of the
seventeen packets were tested, the Commonwealth failed to prove
the intent necessary to support a distribution conviction. We
disagree. Fisher, a qualified forensic scientist, testified that
the method used to conduct the test for heroin was universally
recognized and produced results that were 99 percent certain as
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to the entire amount found in appellant's possession. That
evidence is sufficient to prove that all the bags contained
heroin and that the quantity in appellant's possession,
considered with the method of packaging and other testimony, was
sufficient for the trial court to find that appellant intended to
distribute the contraband.
For the reasons stated, the judgment of the trial court is
affirmed.
Affirmed.
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BENTON, J., dissenting.
The Supreme Court of Virginia has "consistently . . . held
that the admission of expert opinion upon an ultimate issue of
fact is impermissible because it invades the function of the fact
finder." Llamera v. Commonwealth, 243 Va. 262, 264, 414 S.E.2d
597, 598 (1992). The ultimate issue in this case was whether the
thirteen packets of heroin that Lewter possessed were for his
personal use or for distribution. The police officer's testimony
that possession of that quantity was inconsistent with personal
use was an "opinion upon an ultimate issue of fact . . . [and,
thus,] an impermissible invasion of the function of the
factfinder." Bond v. Commonwealth, 226 Va. 534, 538, 311 S.E.2d
769, 771-72 (1984).
The Supreme Court has been firm in its holding that in
deciding the ultimate issue, "[t]he process of resolving
conflicting inferences, affected as it is by the credibility of
the witnesses who supply such evidence, is the historical
function of a jury drawn from a cross-section of the community."
Id. at 538, 311 S.E.2d at 772. See also Webb v. Commonwealth,
204 Va. 24, 33, 129 S.E.2d 22, 29 (1963); Newton v. City of
Richmond, 198 Va. 869, 875, 96 S.E.2d 775, 780 (1957). Because
the testimony that was allowed in this case contravened these
well established rules, I would reverse the conviction and remand
for a new trial.
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