Christine E. Davis v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Willis, Bray and Clements
Argued at Alexandria, Virginia
CHRISTINE E. DAVIS
OPINION BY
v. 	Record No. 2951-99-4 	JUDGE JERE M. H. WILLIS, JR.
JANUARY 30, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
William T. Newman, Jr., Judge
Clark E. Brodersen for appellant.
John H. McLees, Jr., Senior Assistant
Attorney General (Mark L. Earley, Attorney
General, on brief), for appellee.
Christine E. Davis (appellant) was convicted by a jury of
possession of more than five pounds of marijuana with the intent
to distribute, a violation of Code § 18.2-248.1. 	On appeal, she
contends that the trial court erred in allowing a detective to
testify about drug courier mannerisms. 	We hold that the trial
court erred in admitting the testimony, but that this error was
harmless. 	Therefore, we affirm the judgment of the trial court.
I. 	BACKGROUND
On February 13, 1999, a drug task force team, composed of
Arlington Police Detectives Lowell Tolliver and Gregory Bender,
was investigating illegal drug traffic at Reagan National
Airport. 	Detective Tolliver had received a tip from a drug task
force officer in El Paso, Texas that a named suspect

transporting marijuana would arrive in the late afternoon on a
Delta Airlines flight. 	The suspect was described as a black
woman wearing a long green dress and white tennis shoes, who had
checked two bags, one large and one small.
The detectives confirmed that the named person was on the
flight and had checked two bags. 	When the plane landed,
Detective Tolliver intercepted the bags before they were taken
to the luggage carousel. 	A narcotics dog sniffed but did not
alert on the two bags.
The two bags were then sent to the luggage carousel, which
Detective Bender kept under surveillance. 	Davis was there,
matching the description the detectives had been given earlier
by the El Paso, Texas officer. 	She waited until most of the
other passengers had claimed their bags. 	She then retrieved the
smaller bag, but was unable to find the larger bag because it
had been removed from the carousel by a skycap. 	She began to
leave without the larger bag.
Detective Tolliver approached Davis and identified himself.
He explained his mission and asked her for identification. 	She
gave him her driver's license, airline itinerary, and two
baggage claim checks.
At first, Davis told the officers that the small bag was
her only bag. 	Detective Bender retrieved the larger bag and
pointed out to Davis that it had her name on it, that she had
two claim checks, and that one of the claim checks matched the
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number on the larger bag. 	Davis then admitted that she had
checked both bags, but stated that someone else had packed the
larger bag and given it to her to transport.
Davis consented to the detectives' search of the two bags.
Inside the larger bag, they found twenty-eight "bricks" of
marijuana wrapped in blankets and plastic and surrounded by
dishwashing liquid. 	The smaller bag contained no drugs. 	Davis
was arrested and charged with possession of more than five
pounds of marijuana with the intent to distribute.
During the trial, Detective Bender was asked, "[a]re there
any particular mannerisms that would indicate more likely than
not that somebody was carrying drugs?" 	Davis objected based on
relevancy grounds but was overruled. 	Detective Bender answered:
[s]omething I would look for that would be
indicative of a drug courier or smuggler
would be somebody that would purchase a cash
one-way ticket primarily from a source
state, California, New Mexico, western
coast, Florida, New York.
The ticket would be paid for in cash,
usually one-way travel, what we call quick
turnaround, somebody flying from the west
coast to the east coast, which is a six-hour
flight. 	They would be in Washington, D.C.,
less than 12 hours and then turn around and
go right back.
When asked whether the route a person took could indicate that
he was a drug courier, Detective Bender responded:
[s]ometimes the individuals know that the
law enforcement concentrates on those source
cities, in particular the West Coast or
Texas, and what they will do is they will
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book a flight to a non-source city that the
law enforcement is not concentrating so
heavily on.
A lot of times they will fly into
Kansas or Detroit just in order to avoid
being detected by a law enforcement officer,
I guess.
On appeal, Davis contends that the trial court committed
reversible error by admitting Detective Bender's testimony about
drug courier mannerisms because that testimony had no probative
value, or if it did, its probative value was outweighed by its
prejudicial effect.
I. 	ADMISSIBILITY OF EVIDENCE
"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). 	"Evidence is relevant if it has any logical tendency,
however slight, to establish a fact at issue in the case."
Ragland v. Commonwealth, 16 Va. App. 913, 918, 434 S.E.2d 675,
678 (1993).
The questioned testimony was underlain by no validating
foundation. 	The questions to Detective Bender and his answers
were couched in terms of personal speculation, not in terms of
profiles developed by observation and experience. 	The
characteristics described by Detective Bender were too general
to be of legally recognizable value. 	Those characteristics
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could apply equally and indiscriminately to the guilty and the
innocent alike. 	Those characteristics were not described as
having regular use and usefulness in police investigation of
illegal drug traffic.
In prosecuting Davis, the Commonwealth had no need to
explain drug courier mannerisms. 	Davis was caught with a
suitcase of marijuana. 	Detective Bender's description of drug
courier characteristics had little if any probative value in her
case. 	Rather, the suggestion that Davis fit an unsubstantiated
profile injected into her case an issue that had no bearing on
her guilt or innocence of the crime charged. 	The trial court
erred in admitting Detective Bender's testimony regarding drug
courier mannerisms.
II. 	HARMLESS ERROR
Error is harmless when "'it plainly appears from the record
and the evidence given at trial that the parties have had a fair
trial on the merits and substantial justice has been reached.'"
Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d
910, 911 (1991) (en banc) (quoting Code § 8.01-678).
The remaining evidence in the record overwhelmingly proved
Davis' guilt. 	Davis fit the tip provided by the El Paso, Texas
officer. 	She was carrying over five pounds of marijuana in a
bag to which she had the claim ticket. 	The numbers on the claim
ticket matched the numbers on the bag. 	The bag had a tag with
her name on it. 	After first denying claim to the larger bag,
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she admitted that she had checked it. 	The drug courier
characteristic description was not applied to her. 	Thus, the
trial court's error in admitting the drug courier testimony was
harmless.
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
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