State v. Collins

535 So. 2d 973, 1988 WL 97268
Louisiana Court of Appeal·Decided September 21, 1988·No. 19952-KA·Published·Cited by 5 cases

Opinion

535 So.2d 973 (1988)

STATE of Louisiana, Appellee,
v.
Frank C. COLLINS, Appellant.

No. 19952-KA.

Court of Appeal of Louisiana, Second Circuit.

September 21, 1988.
Writ Denied December 2, 1988.

*974 Smith & Hingle by Gilmer P. Hingle, Monroe, for appellant.

William J. Guste, Jr., Atty. Gen., Baton Rouge, Charles B. Bice, Dist. Atty., Winnfield, for appellee.

Before MARVIN, JASPER E. JONES and NORRIS, JJ.

JASPER E. JONES, Judge.

The defendant, Frank C. Collins, was charged by bill of information with two counts of distribution of a controlled dangerous substance, cocaine, in violation of LSA-R.S. 40:967. After trial by jury the defendant was found guilty of both counts. The trial court sentenced the defendant to serve six years at hard labor and imposed a fine of $5,000.00 on count one with an additional year at hard labor in default of payment of the fine. On count two, the trial court sentenced the defendant to six years at hard labor to run concurrently with the sentence imposed for conviction of count one. The defendant now appeals his conviction and sentence urging nine assignments of error. We affirm.

FACTS

Viewed in the light most favorable to the prosecution, the record reveals the following facts.

On January 22, 1987, Officer Robert Tarver of the Louisiana State Police was working an undercover narcotics assignment in *975 Winnfield. On that date, accompanied by confidential informant Mark Goss, Officer Tarver told the defendant he wished to buy some cocaine. The defendant accepted $100 from the undercover officer in compliance with this request. While the informant and Officer Tarver waited in their vehicle parked in front of a local residence, the defendant entered said residence and shortly returned, giving a white substance later determined to be cocaine to Officer Tarver and his companion.

On February 11, 1987, Deputy Reginald Fields, employed by the Natchitoches Parish Sheriff's Office, as an undercover police officer, drove to a residence located in Winnfield. After relating a request for cocaine to the defendant, the defendant entered the residence and returned with a substance contained in a small jewelry bag later determined to be cocaine for which Deputy Fields paid the defendant $50.00.

The defendant was arrested in April, 1987, in connection with the transactions and charged by bill of information with two counts of distribution of a controlled dangerous substance, cocaine, in violation of LSA-R.S. 40:967. Defendant was convicted of both counts by a twelve-man jury. The defendant now appeals his convictions and sentences.

ASSIGNMENTS OF ERROR

On appeal, the defendant urges nine assignments of error, which present the following issues for review:

(1) Did the trial court err in accepting Kevin Fortney as an expert witness in the area of controlled dangerous substances;
(2) Did the trial court err in overruling defense objections to Fortney's testimony relating cocaine is a narcotic drug;
(3) Did the trial court err in allowing the introduction of numerous state's exhibits into evidence;
(4) Did the trial court err in allowing the state to sequester defense witnesses after concluding its presentation of the evidence;
(5) Did the state prove by sufficient evidence every element of the charged crimes; and
(6) Did the trial court comply with the sentencing guidelines of LSA-C.Cr.P. art. 894.1 and was the sentence imposed constitutionally excessive.

ASSIGNMENT OF ERROR # 3

By this assignment, the defendant contends the trial court erred in accepting Kevin Don Fortney as an expert witness in the area of chemical analysis of controlled dangerous substances.

The test of the competency of an expert is his knowledge of the subject about which he is called upon to express an opinion, and before any witness can give evidence as an expert his competency so to testify must have been established to the satisfaction of the court. LSA-R.S. 15:466. Competency of expert witnesses is a question of fact within the sound discretion of the trial judge, and his rulings on qualifications of experts will not be disturbed unless clearly wrong. State v. Coleman, 406 So.2d 563 (La.1981); State v. Jones, 457 So.2d 110 (La.App. 2d Cir.1984), writ den., 462 So.2d 207 (La.1985).

The record reflects Mr. Fortney had been employed at the time of trial by the North Louisiana Crime Lab for the past fifteen months as a forensic chemist. Mr. Fortney's undergraduate degree is in biology with a minor in chemistry. Mr. Fortney testified during the course of a week's work he analyzes drugs in ten to fifteen cases involving cocaine, and in addition he analyzes at least 80 cases involving marijuana. In light of Mr. Fortney's educational background and work experience, we find the trial court did not err in recognizing Mr. Fortney as an expert in this area.

This assignment of error is without merit.

ASSIGNMENT OF ERROR # 4

The defendant contends the trial court erred in overruling defense objection to Mr. Fortney's testimony that cocaine is a narcotic drug. The defendant argues no *976 factual basis was stated for Mr. Fortney's opinion. Further, defendant argues this testimony was prejudicial as the trial court had not instructed the jury on this point of law.

Mr. Fortney's testimony that cocaine is a narcotic drug is testimony relating a fact, not an opinion. Cocaine is statutorily defined as a narcotic drug and has been recognized as such by the jurisprudence. LSA-R.S. 40:961(23); State v. Bonanno, 384 So.2d 355 (La.1980). An expert is not required to relate circumstances upon which a factual statement is based. Accordingly, Mr. Fortney was not required to state predicate circumstances for this factual statement.

We also note failure of the trial court to instruct the jury that cocaine is classified as a narcotic drug could only work to defendant's benefit. We reject defendant's contention that prejudice occurred because of a lack of instruction on this point.

This assignment of error is without merit.

ASSIGNMENTS OF ERROR # 5 & # 6

By these assignments, the defendant contends the trial court erred in overruling defense objection to several of the state's exhibits introduced into evidence.

The defendant objected to the introduction of pictures of the defendant and pictures of the house from which the defendant obtained the cocaine. The defendant argued the pictures of the defendant were prejudicial because they were "mug-shots" and were of little probative value as the photographs did not substantially look like the defendant at the time of trial or at the time of the alleged offense. The defendant further objected to the introduction of the photographs of the residence for lack of a proper foundation establishing the pictures depicted the scene at the time of the offense.

A photograph need not be identified by the person who took it to be admissible in evidence. State v. Bates, 397 So.2d 1331 (La.1981); State v. Wiley, 513 So.2d 849 (La.App. 2d Cir.1987), writ den., 522 So.2d 1092 (La.1988). A proper foundation for admission into evidence of a photograph is laid when a witness having personal knowledge of the subject depicted by the photographs identifies it. State v. Lewis, 478 So.2d 665 (La.App. 2d Cir.1985); State v. Bates, supra. Sufficiency of id

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