State v. Hill

332 So. 2d 475
CourtSupreme Court of Louisiana
DecidedMay 17, 1976
Docket57300
StatusPublished
Cited by7 cases

This text of 332 So. 2d 475 (State v. Hill) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hill, 332 So. 2d 475 (La. 1976).

Opinion

332 So.2d 475 (1976)

STATE of Louisiana
v.
Alvin Paul HILL.

No. 57300.

Supreme Court of Louisiana.

May 17, 1976.

*476 Robert J. Ziblich, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.

CALOGERO, Justice.

Defendant Alvin Paul Hill was charged by grand jury indictment with aggravated rape in violation of La.R.S. 14:42. On March 18, 1975, defendant was tried and the jury returned a responsive verdict of guilty of attempted aggravated rape. Prior to sentencing, the district attorney filed a bill of information, pursuant to La.R.S. 15:529.1, charging defendant as a multiple offender and setting forth three previous felony convictions. After a hearing, defendant was sentenced as a second offender to forty years imprisonment. He now appeals, relying on four assignments of error with respect to the conviction and three assignments of error relative to the sentence.

On October 28, 1974, a woman attempting to exit her car in the parking lot of the Gentilly Woods Shopping Center in New Orleans was accosted by a man with a knife and forced back into her car. After being forced to drive him around for a while, she was ordered to stop on a street behind the Riget Theatre on Franklin Avenue in Orleans Parish, where she was raped. She was then forced to drive to a place beneath and I—10 "bridge" near Apache Street in Orleans Parish, where she was again raped. The assailant then instructed her to take him back to his car in the parking lot of the shopping center. From a description of the assailant and of his car given to the police by the victim, defendant was picked up and arrested a short time later.

ASSIGNMENT OF ERROR NO. 1.

By this assignment of error, defendant argues that the trial court erred when it allowed Officer Edgar Dunn, a criminalist *477 with the New Orleans Police Department, to testify as an expert in the examination of seminal fluid and the comparison of hair samples.

Officer Dunn testified that he has a Bachelor of Science degree in biology from the University of Mississippi and one semester of graduate work in Chemistry at the same university; that he is a member of the Forensic Scientists Society and the Louisiana Association of Forensic Scientists; and that he has previously testified as an expert in the examination of seminal fluid and the comparison of hair samples in Section I of the Criminal District Court for the Parish of Orleans, and as an expert in seminal fluid in Sections D and J of that court. He had at the time of trial worked as a criminalist for the New Orleans Police Department for four and one half years. Following testimony by Officer Dunn as to the types of tests he performed, the trial judge ruled that he was qualified to testify as an expert witness. Defense counsel objected to the ruling.

The basis of defendant's argument is that during the predicate to qualify him as an expert, Officer Dunn testified that "[a]ny stain on pants isn't necessarily seminal fluid. If it does fluoresce, it has a high possibility of being seminal fluid." Defense counsel contends that this statement demonstrates that the examination of seminal fluid is too inexact and that expert testimony in that area is, therefore, improper. No argument was raised questioning Officer Dunn's qualification as an expert in the comparison of hair samples.

La.R.S. 15:464 provides that "[o]n questions involving a knowledge obtained only by means of a special training or experience the opinions of persons having such knowledge are admissible as expert testimony." Prior to testimony as an expert, however, a witness must be qualified as such by the trial court. La.R.S. 15:466 provides as follows:

"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."

It is well established that the trial judge has wide discretion in this area and his ruling will not be disturbed on appeal in the absence of manifest error. State v. Rogers, 324 So.2d 358 (La.1975); State v. Thorson, 302 So.2d 578 (La.1974); State v. Vassel, 285 So.2d 221 (La.1973). Under the facts of this case, the trial court clearly did not err in allowing Officer Dunn to testify as an expert witness. There are few areas of scientific expertise subject to absolute certainty. Thus while Officer Dunn's testimony that the test administered determines only whether there is a high possibility that a stain is seminal fluid is not conclusive proof of the matter at issue, this limitation in no way affects his qualification as an expert witness.

This assignment of error lacks merit.

ASSIGNMENTS OF ERROR NOS. 2, 4 and 5.

By these assignments of error, defendant argues that the trial court erred when it allowed the testimony of Patricia Daniels with respect to the results of laboratory tests she had made to go to the jury and when it permitted the state to refer to a coroner's physical examination report by Dr. George Bailey and to the laboratory report by Ms. Daniels, when laying the predicate for this testimony.

At trial, out of the presence of the jury, Ms. Daniels, a medical technologist employed by the Orleans Parish Coroner's Office, testified that on October 29, 1974, she examined a vaginal swab and a vaginal smear taken from a rape victim the previous evening. According to Ms. Daniels' testimony, she found the specimens in a vial in the office refrigerator, the usual procedure *478 when she is not present at the examination. The label on the vial indicated the name of the victim; her race; her age; the date of the examination, i.e., October 28, 1974; and the name of the doctor who had performed the examination, Dr. George Bailey. She further stated that following her analysis of the specimens in question she discarded them, as was her general policy, and wrote a report on her findings. This report was then filed in the coroner's office together with Dr. Bailey's examination report. Over objection of defense counsel, the trial court ruled that a sufficient predicate had been laid to allow the testimony to go to the jury. The foundation was then laid in the presence of the jury and, again over the objection of defense counsel, Ms. Daniels read her report, which stated in effect that a vaginal swab, ostensibly taken from the victim on October 28, 1974, tested positive for seminal fluid, and that a vaginal smear taken from the victim at the same time revealed the presence of spermatazoa.

The bases of defense counsel's objection are that the trial court allowed Ms. Daniels to read her report to the jury, when Dr. Bailey who had actually conducted the examination of the victim did not testify at trial[1] and when Ms. Daniels had neither taken the specimens from the victim nor been present during the examination; that Dr. Bailey's report referred only to a vaginal smear, while Ms. Daniels' report indicated that she tested both a vaginal swab and smear; and finally, that the specimens themselves should have been introduced at trial.

There is no merit to these arguments. The victim of the crime testified that she had been examined in the coroner's office by Dr. Bailey and that he had taken "something" from her. Ms.

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