Opinion
Record No. 1176-92-1
Decided: July 26, 1994
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH, Kenneth N. Whitehurst, Jr., Judge
Affirmed.
James O. Broccoletti (Zoby Broccoletti, on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Baker, Barrow and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
James Eddie Palmer, Jr., (defendant) was convicted by a jury for the possession of cocaine with the intent to distribute. He contends on appeal that the trial court erroneously admitted into evidence hearsay information provided to police and testimony pertaining generally to the packaging and related distribution of cocaine. We disagree and affirm the conviction.
The parties are fully conversant with the record, and this memorandum opinion recites only those facts necessary to a disposition of the issues on appeal.
"The hearsay rule does not operate to exclude evidence of a statement . . . offered for the mere purpose of explaining . . . the conduct of the person to whom it was made." Fuller v. Commonwealth, 201 Va. 724, 729, 113 S.E.2d 667, 670 (1960). See also Foster v. Commonwealth, 209 Va. 297, 303, 163 S.E.2d 565, 569 (1968). Such evidence is not intended to prove the "truth of the matter therein asserted" and frequently is offered, as here, only " 'to show why the [police] officers went to the scene of the alleged crime.' " Upchurch v. Commonwealth, 220 Va. 408, 410, 258 S.E.2d 506, 508 (1979) (citation omitted). See also Swift v. Commonwealth, 199 Va. 420, 422-23, 100 S.E.2d 9, 11-12 (1957).
Nevertheless, relying upon Sturgis v. Commonwealth, 197 Va. 264, 88 S.E.2d 919 (1955), defendant argues that the "tip" communicated to Detective McCollum was inadmissible hearsay in this instance because it "conveyed to the jury . . . information [from] other persons that the defendant was or had been engaged in the very illegal act for which he was then being tried." Id. at 267, 88 S.E.2d at 921. Defendant acknowledges that, unlike Sturgis, the information did not name him but reasons that it, when combined with other evidence, clearly suggests that he "was associated with a suspected drug dealer" or "was one of the individuals identified." Defendant further complains that the trial court failed to instruct the jury to consider the testimony only for the limited purpose of explaining the police "presence" at the scene.
Defendant, however, ignores Detective McCollum's testimony that he "didn't receive any information on [defendant], himself," and that defendant was not described in the tip. Moreover, McCollum repeatedly acknowledged on cross-examination that, when first observed, defendant was "just standing[,] apparently engaged in a casual conversation," and was doing nothing "illegal" or "suspicious."
This evidence was not inconsistent with the testimony of Detective Elder who, "crouched down on the floorboard" of the police vehicle, had relied entirely on McCollum's initial observations of the "subjects."
"The admissibility of evidence is within the broad discretion of the trial court, and a ruling will not be disturbed on appeal in the absence of an abuse of discretion." Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988). When the disputed evidence is viewed in the context of the entire record, we find that it did not identify defendant as a criminal actor in violation of Sturgis. To the contrary, McCollum's testimony actually excluded defendant from anyone referenced or described in the tip. Under such circumstances, the testimony did not include hearsay or invite undue prejudice upon defendant and was properly admitted into evidence.
Defendant's insistence on appeal that a cautionary instruction was indispensable to this evidence is also without merit. While a limiting instruction may have been preferable, see Upchurch, 220 Va. at 410-11, 258 S.E.2d at 508, its omission does not constitute error, per se. See Swift, 199 Va. at 422-23, 100 S.E.2d at 11-12. Moreover, the record does not reflect that defendant requested a cautionary instruction before the trial court and, therefore, " 'any error which may have been committed otherwise is waived.' " Talbert v. Commonwealth, ___ Va. App. ___ ___, 436 S.E.2d 286, 289 (1993) (citation omitted).
Lastly, defendant asserts that McCollum was improperly permitted to testify "generally regarding the means, manner, and packaging of cocaine for distribution," thereby improperly expressing "an explicit opinion that [defendant] was distributing cocaine, the ultimate issue."
It is well established that "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). See also Schooler v. Commonwealth, 14 Va. App. 418, 420, 417 S.E.2d 110, 111 (1992). However, when the resolution of issues before the court requires experience or knowledge beyond the ordinary observation and assessment of lay persons, expert testimony is admissible to provide the necessary and relevant facts and opinions. Id.
Here, defendant does not challenge McCollum's expertise relative to illicit cocaine trafficking but, rather, any "inappropriate . . . opinion on the ultimate issue," defendant's possession of the drug with the intent to distribute it. Without detailing McCollum's testimony, we find from the record that he properly testified only to relevant facts and circumstances "characteristically" attendant to the possession and distribution of cocaine and not that defendant possessed the offending drug with the intent to distribute it. See Davis v. Commonwealth, 12 Va. App. 728, 731-32, 406 S.E.2d 922, 924 (1991).
Accordingly, we affirm the judgment of the trial court.
Affirmed.
In my opinion, the officer's description of the report he was investigating was inadmissible hearsay. The officer said that he and another officer were investigating a report that "two black males . . . were holding a quantity of crack cocaine on their person and . . . were standing on Carver Avenue in front of a yellow house." The officer then testified that he found the defendant, a black male, and another black man "standing at the front of the house." The officers charged the defendant with the possession of crack cocaine which the officers said the defendant threw to the ground when they approached him.
A hearsay report to the police is admissible to explain a police officer's action, but not to prove the truth of the contents of the report. Upchurch v. Commonwealth, 220 Va. 408, 410, 258 S.E.2d 506, 508 (1979). Furthermore, if the report identifies the defendant as the person who committed the offense with which he is charged, it is prejudicial and, therefore, inadmissible. Sturgis v. Commonwealth, 197 Va. 264, 267, 88 S.E.2d 919, 921 (1955).
The report to the police in this case, although not identifying the defendant by name, did, in effect, identify him as a person who possessed crack cocaine. The officer testified the report indicated that two black males standing in front of a yellow house on Carver Avenue possessed crack cocaine, and the defendant was one of two black males standing on Carver Avenue in front of a yellow house.
The trial judge did not give a cautionary instruction to the jury limiting their consideration of the report to that purpose for which it was admissible. Consequently, we may not presume that the jury considered the report only for the purpose of explaining the officers' actions, but must assume that the jury considered it in determining the defendant's guilt.
For this reason, I would reverse the defendant's conviction and remand the proceeding for a new trial.