United States v. Lockett, 919 F.2d 585

U.S. Court of Appeals for the Ninth Circuit

1990

Chapter

12

Title

Opinion Testimony - Lay and Expert

Page

558

Topic

704:  Pure legal conclusions are not allowed by expert witnesses

Quick Notes

Lockett was convicted are various concaine charges.  His argument is that the police officer said he was guilty by saying that that only persons intimately involved with a cocaine packaging operation are usually allowed at the packaging site.

Rule 704. Opinion on Ultimate Issue

o    (a) Except as provided in subdivision (b),

o    Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

o    (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.

Lockett contends - Officer was opining as to guilt

o         The district court erred in allowing Portland Police Officer Derrick Foxworth to testify, as an expert, that only persons intimately involved with a cocaine packaging operation are usually allowed at the packaging site.

o         Lockett does not dispute Foxworth's status as expert witness under Rule 704.

o         By so testifying, Lockett argues, Foxworth was opining as to guilt.

Court - Cannot give a direct opinion as to guilt

o         A witness is not permitted to give a direct opinion about the defendant's guilt or innocence.

Court - Expert can testify regarding the ultimate issue to be resolved

o         With this caveat, however, an expert may otherwise testify regarding even an ultimate issue to be resolved by the trier of fact.

o         Foxworth's testimony falls in the latter classification rather than the former.

o         Foxworth merely described a typical cocaine packaging operation.

Court - Jury can determine if there was a cocaine packaging operation

o         The jury was left to determine, on its own, whether there was a cocaine distribution operation in the present case, and whether Lockett's presence was an exception to the general  practice of cocaine packaging operations.

o         Foxworth's testimony did not invade  the province of the jury

Book Name

Evidence: A Contemporary Approach.  Sydney Beckman, Susan Crump, Fred Galves.  ISBN:  978-0-314-19105-2.

Issue

o         Whether an expert witness can offer a legal conclusion?  No.

Procedure

Trial

o    Defendant appealed the decision of the United States District Court for the District of Oregon, which convicted defendant of conspiracy to possess cocaine with intent to distribute, conspiracy to distribute cocaine, distribution of 500 grams or more of cocaine, and possession of 500 grams or more of cocaine with intent to distribute.

Appellant

o    The court affirmed the decision of the district court. The court held that defendant offered no evidence that he possessed any control or supervision over the residence and did not sustain his burden of showing a legitimate expectation of privacy. The court also held that at best, defendant had safety interest standing under § 3109 and that such an interest was not based upon an interest in privacy of constitutional magnitude. The court also held that the expert's testimony was properly admitted. The court held that a subsequent affidavit by a witness who refused to testify at the trial was not newly discovered evidence.

Facts/Cases

Discussion

Key Phrases

Rules/Laws

Pl - United States

Df - Lockett

Description

o         In June 1987, the Portland Police Bureau began investigating cocaine trafficking in the near north and northeast areas of the City of Portland, Oregon.

o         Acting upon information supplied by a confidential informant, the police paid special heed to four individuals, Bradford Lockett, Herbert Lockett, Keith Horsley, and Marcella Manning.

Monitoring

o         Portland police officers began to monitor the activities of Bradford Lockett ("Lockett") and Manning, observing Lockett's activities approximately ten to twenty hours per week from October 1987 until his arrest on February 6, 1988.

Search Warrant and Entering

o         Numerous members of the Portland Police Bureau served a search warrant at the Thompson Street residence.

o         Officer Jacobelli knocked on the door and announced that he was a police officer and that he had a search warrant.

o         After four to five seconds elapsed without a response, the officers pried open the door and entered.

Discovered cocaine, baggies, paging device

o         Inside, they encountered Lockett, Marcella Manning, and Carla Manning.

o         They also discovered approximately 1,800 grams of cocaine, most of it found either in a bedroom, in a plastic bag resting on the television set, or lying on a large plate on the coffee table in the living room.

o         Some of the cocaine was contained in 80 small baggies, resting on or alongside the coffee table.

o         Also found in the living room was a cooking pot and seven cigarette lighters.

o         The room resembled, according to Officer Brumfield, a cocaine-packaging assembly line.

o         A leather jacket belonging to Lockett was found in a closet.

o         A paging device was discovered on Lockett

Locket was convicted

o         Four counts: conspiracy to possess cocaine with intent to distribute, conspiracy to distribute cocaine, distribution of 500 grams or more of cocaine, and possession of 500 grams or more of cocaine with intent to distribute..

Lockett contends - Officer was opining as to guilt

o         The district court erred in allowing Portland Police Officer Derrick Foxworth to testify, as an expert, that only persons intimately involved with a cocaine packaging operation are usually allowed at the packaging site.

o         Lockett does not dispute Foxworth's status as expert witness under Rule 704.

o         By so testifying, Lockett argues, Foxworth was opining as to guilt.

Court - Cannot give a direct opinion as to guilt

o         A witness is not permitted to give a direct opinion about the defendant's guilt or innocence.

Court - Expert can testify regarding the ultimate issue to be resolved

o         With this caveat, however, an expert may otherwise testify regarding even an ultimate issue to be resolved by the trier of fact.

o         Foxworth's testimony falls in the latter classification rather than the former.

o         Foxworth merely described a typical cocaine packaging operation.

Court - Jury can determine if there was a cocaine packaging operation

o         The jury was left to determine, on its own, whether there was a cocaine distribution operation in the present case, and whether Lockett's presence was an exception to the general  practice of cocaine packaging operations.

o         Foxworth's testimony did not invade  the province of the jury

Rules

Rule 704. Opinion on Ultimate Issue

o    (a) Except as provided in subdivision (b),

o    Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

o    (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.

Class Notes