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Expert could testify at possession trial

Even though an expert witness testified at trial about matters not disclosed to appellant before his trial on a drug possession charge, the testimony was properly admitted. The failure to disclose did not prejudice appellant.

Traffic stop

Police stopped appellant Tyler’s car after he darted in front of another vehicle. Smith was the front seat passenger. An unidentified male was in the back seat. Tyler told Officer Howard he did not have his driver’s license with him.

“He then reached over and opened the glovebox to retrieve his vehicle’s registration. Body camera footage from Officer Shupp, assisting Officer Howard, shows a green ‘Newport’ cigarette package in the corner of the glovebox closest to Tyler when he opened the glovebox. While Tyler fumbled with the documents over the steering wheel, Smith quickly closed the glovebox.”

The officer determined that Tyler was a habitual offender and arrested him for felony driving. Tyler dumped a baggie containing brown powder suspected to be heroin after Officer Howard asked him about the baggie, which had been in the driver’s door compartment.

“Suspecting the brown powder was narcotics, Officer Howard asked both passengers to leave the car. After spying a revolver in the unidentified male’s waistband, he was searched, and the officers found a dollar bill containing brown powder residue.

Smith and the unknown male were asked to leave the car. A search revealed more suspected heroin, a handgun in a purse and a large number of lottery bet slips. The Newport cigarette package contained a bag of suspected heroin. Subsequent testing showed that more than 17 grams of heroin were recovered from the car.

“At a bench trial, Detective Necolettos, an expert in drug distribution, opined that the amount of heroin in the Newport package was inconsistent with personal use. He based this opinion on the quantity of heroin, the 60 unused lottery play slips, and the torn lottery play slip in the passenger door.

“Detective Necolettos explained that torn lottery play slips were commonly used to distribute heroin and also observed that there was a ‘high correlation’ between firearms and drug trafficking.

“Tyler objected to Detective Necolettos’s testimony about the lottery ticket slips, arguing that it exceeded the scope of the Commonwealth’s pre-trial expert designation which stated simply: ‘The Commonwealth expects Detective Necolettos to testify that the amount of drugs seized is inconsistent with personal use.’ The trial court overruled Tyler’s objection.

He appealed his conviction of possessing a Schedule I or II controlled substance with the intent to distribute, second offense.

Argument on appeal

“Tyler argues that the trial court erred by allowing Detective Necolettos to testify that the presence of unused lottery tickets and firearms in the vehicle were factors on which he relied in forming his opinion that the quantity of heroin was inconsistent with personal use. He argues this was not disclosed to him before trial, which violated the trial court’s discovery order.”

Discovery order

“[T]he discovery order incorporated Rule 3A:11(b)(4)(A), and required the Commonwealth to:

“‘Notify the accused in writing of the Commonwealth’s intent to introduce expert opinion testimony at trial or sentencing and to provide the accused with: (i) any written report of the expert witness setting forth the witness’s opinions and bases and reasons for those opinions, or, if there is no such report, a written summary of the expected expert testimony setting forth the witness’s opinions and the bases and reasons for those opinions, and (ii) the witness’s qualifications and contact information.’

“The order also incorporated Rule 3A:11(b)(4)(B):

“‘Nothing in subparts (b)(4)(A)(i) or (ii) of this Rule renders inadmissible an expert witness’s testimony at the trial or sentencing further explaining the opinions, bases and reasons disclosed pursuant to this Rule, or the expert witness’s qualifications, just because the further explanatory language was not included in the notice and disclosure provided under this Rule.’

“Under Rule 3A:11(b)(4)(A) and the court’s discovery order, the Commonwealth needed to disclose not only the expected expert testimony (that ‘the amount of drugs is inconsistent with personal use’) but also the ‘bases and reasons’ for this opinion.

“Here, the Commonwealth argues that Detective Necolettos’s testimony that torn lottery play slips were commonly used to distribute heroin, as well as the observation that there was a ‘high correlation’ between firearms and drug trafficking, were additional bases and reasons ‘further explaining’ the ‘opinions, bases and reasons disclosed pursuant to this Rule.’

“But for additional bases and reasons to qualify under Rule 3A:11(b)(4)(B), a party must first have disclosed at least some basis or reason under Rule 3A:11(b)(4)(A).”

No prejudice

“In the alternative, the Commonwealth argues that Tyler was not prejudiced by the failure to disclose under Rule 3A:11(b)(4)(A). We agree.

“A trial court does not err in admitting evidence ‘when a discovery violation does not prejudice the substantial rights of a defendant.’ …

“While Tyler generally argues on appeal that he was prejudiced because the court relied on Detective Necolettos’s testimony to find him guilty of the offense, Tyler fails to point to any prejudice he experienced from the failure to include this information in the pretrial expert disclosure (nor did he identify any prejudice for the trial court).

“For example, if he was ‘surprised by the content or otherwise unprepared to deal with it, he could have requested a continuance.’ … Without a showing of prejudice tied to the alleged discovery violation, we affirm the trial court’s decision to admit the testimony.”

Constructive possession

The trial court correctly relied on the totality of the circumstances when determining that Tyler constructively possessed the heroin in his car, along with the heroin in the cigarette package.

“Tyler owned the vehicle and was driving the vehicle at the time of the traffic stop. And there was evidence of drug use and distribution throughout the vehicle.

“Along with the brown powder found in the Newport pack, later confirmed to be heroin, there was a baggy with brown powder in the front driver’s door, a small plastic baggy with brown powder in the center console, and a folded-up lottery ticket with brown powder residue also in the center console.

“More than 60 unused lottery play slips were in the front passenger door. In addition, the evidence shows that Tyler handed Smith a gun and told her to put it in her purse. Expert testimony confirmed that both the firearm and lottery slips were correlated with drug distribution. …

“Moreover, Tyler’s decision to empty out the bag with brown powder found in the door next to where he was sitting – just after law enforcement asked him about the bag – also supported a reasonable conclusion that he was familiar with the appearance of heroin generally and that he was aware of the heroin in his glovebox.”

Tyler Jr. v. Commonwealth, Record No. 0219-22-2, Feb. 21, 2023. CAV unpublished opinion (Lorish). From the Circuit Court of Chesterfield County. (Johnson). Robert M. Lorey for appellant. Jason S. Miyares, Lucille M. Wall for appellee. VLW 023-7-088, 11 pp.

VLW 023-7-088

Virginia Lawyers Weekly