Tuesday, May 1, 2012

Drug profile evidence is not admissible as substantive evidence of guilt.

On appeal defendant contended that the officers’ testimony regarding the evidence found on the table and its significance constituted improper drug profile evidence. A profile is a list of usually innocuous characteristics that police believe to be typical of a person engaged in a particular illegal activity. People v Hubbard, 209 Mich App 234, 239 (1995). “Drug profile evidence is essentially a compilation of otherwise innocuous characteristics that many drug dealers exhibit, such as the use of pagers, the carrying of large amounts of cash, and the possession of razor blades and lighters in order to package crack cocaine for sale.” People v Murray, 234 Mich App 46, 52-53 (1999). Drug profile evidence is not admissible as substantive evidence of guilt.  Hubbard, 209 Mich App at 241. On the other hand, expert testimony is admissible “to explain the significance of items seized and the circumstances obtaining during the investigation of criminal activity.” Murray, 234 Mich App at 53.

In this case, the officers explained the significance of the scales, sifter, sandwich bags, and hanger which, otherwise innocuous in and of themselves, can be used to make, weigh, package, and sell drugs. People v Williams (After Remand), 198 Mich App 537, 542 (1993). Because the testimony did not relate otherwise innocent characteristics to defendant in order to establish his guilt, it was not profile evidence. Murray, 234 Mich App at 62-63.

Defendant next contends that the officers’ testimony regarding the significance of the physical evidence was improper because the officers were not admitted as expert witnesses under MRE 702. We agree that because testimony of the type offered here “was not within the knowledge of a layman,” it constitutes expert testimony. People v Ray, 191 Mich App 706, 707- 708 1 (1991). Here, plaintiff failed to lay a foundation for the officers’ expert testimony by showing that they had specialized knowledge regarding narcotics activity based on their experience, training, or education and the court failed to find that specialized knowledge would assist it in understanding the evidence or determining a fact in issue. MRE 702.  Accordingly, it was plain error to permit them to offer what amounted to expert testimony.

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