State v. Montana

421 So. 2d 895
CourtSupreme Court of Louisiana
DecidedOctober 29, 1982
Docket81-KA-2755
StatusPublished
Cited by38 cases

This text of 421 So. 2d 895 (State v. Montana) 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. Montana, 421 So. 2d 895 (La. 1982).

Opinion

421 So.2d 895 (1982)

STATE of Louisiana
v.
Allison J. MONTANA.

No. 81-KA-2755.

Supreme Court of Louisiana.

October 29, 1982.

*896 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Cliff Strider and Louise S. Korns, Asst. Dist. Attys., for plaintiff-appellee.

Clyde D. Merritt, Dwight Doskey, Orleans Indigent Defender, New Orleans, for defendant-appellant.

CALOGERO, Justice.[*]

Defendants Allison J. Montana and Darlene A. Filmore were indicted for possession of heroin with intent to distribute (R.S. *897 40:966). Filmore pleaded guilty to a reduced charge, and Montana was tried alone. After he was found guilty of attempted possession of heroin with intent to distribute, Montana was sentenced to serve twenty years imprisonment at hard labor without benefit of parole, probation or suspension of sentence. From this conviction and sentence, defendant appeals, assigning six errors, three of which are discussed hereafter.[1]

Defendant argues that trial error occurred when the court qualified one of the officers as an expert and allowed the officer to give expert testimony, including his opinion. The defendant also contends that the jury verdict was based on insufficient evidence, and that the trial court erred in denying the motion to suppress.

As we agree that trial error occurred during the testimony of one of the officers, we find the defendant's first assignment meritorious, reverse the conviction and remand the case to the district court for retrial.

The facts are as follow:

On the evening of November 5, 1980, two New Orleans plainclothes narcotics officers received a tip from a confidential informant that Montana and an unidentified black female were attempting to sell two balloons of heroin for $750.00 each at the corner of Orleans and Prieur Streets. The officers rode around the neighborhood in an unmarked police car in search of Montana, whom they knew, and his female companion. The officers spotted the pair walking towards them as they drove down the 700 block of North Prieur Street. As they pulled alongside the couple, Montana quickly shoved some currency (later determined to be $45.00) into the hand of the woman, Darlene Filmore. The police testified that the suspects' demeanor changed to an apparent state of anxiety.

The officers got out of the car, placed the couple against the vehicle and frisked them. The woman had $45.00 in her hand, and what felt to Officer Dabdoub to be two balloons in her right front pocket. Defendant and Filmore were arrested and the officers discovered that each of the two balloons contained fourteen tinfoil packets of heroin. Defendant had in his possession $470.00 in small bills, but no heroin.

OFFICER'S TESTIMONY

The state relied on police testimony about the arrest, about the defendant's heroin addiction and about drug dealers' methods of operation, to establish constructive possession with an intent to distribute. It was at the conclusion of such testimony that trial error occurred which requires that the case be remanded for a new trial.

Over defense objection, Officer Larry Taplin of the New Orleans Police Department Narcotics and Drug Abuse Section was accepted by the court as an expert in the field of illicit use and distribution of heroin. Defense counsel did not question Officer Taplin's qualifications as an expert but objected generally that the field of illicit use and distribution of heroin was not subject to court recognized expertise. Subsequently, the defense urged that Officer Taplin's testimony be limited to the packaging of heroin. After the officer described how heroin was packaged for street distribution,[2] he explained further that balloons are used by dealers to carry a wholesale quantity of heroin (15, 20, 25 papers) because balloons are easily concealed and can be swallowed when discovery threatens. During the prosecutor's examination of Officer Taplin, the defense objected intermittently to questions concerning how much heroin dealers usually carry, why individual *898 would possess large amounts of heroin, and what might be indicated by the possession of quantities of small bills. Officer Taplin testified without defense objection that a heroin seller often has an unknown in the trade, frequently a girl, hold the heroin while he, the dealer, meets buyers on the street.[3]

A threshold question in cases such as these is whether expert testimony itself is appropriate. This Court has allowed police officers to qualify as experts in various related fields in the past.

In State v. Coleman, 406 So.2d 563 (La. 1981), we upheld the qualification of a policeman as an expert in the field of packaging, trafficking and distributing PCP.[4] Earlier we approved of a trial judge's allowing a police officer, trained and experienced in drug identification and investigation particularly in connection with marijuana, to express an opinion concerning the number of cigarettes that could be made from one pound of marijuana. State v. Stewart, 357 So.2d 1111 (La.1978). Likewise in State v. Carter, 347 So.2d 236 (La. 1977), we found that a police officer was properly certified by the court as an expert witness in the procedures and techniques employed in the sale and exchange of controlled dangerous substances. In finding that the officer's testimony came within the dimensions of expert testimony outlined in La.R.S. 15:464,[5] we said supra at 237:

[A]s long as the expert testifies about matters knowledge of which he has obtained through special training or experience, it is not necessary that the subject to be discussed be susceptible of scientific training or knowledge. See State v. Marks, 337 So.2d 1177 (La.1976); State v. Tornabene, 337 So.2d 214 (La.1976); State v. McCray, 327 So.2d 408 (La.1976).
*899 The knowledge of the procedures and techniques commonly used in the sale and exchange of controlled dangerous substances is not generally possessed by the public at large but requires special training or experience to acquire.

Most recently in State v. Wheeler, 416 So.2d 78 (La.1982), a case involving the propriety of police testimony about marijuana transactions, we explored the practical application of the broad statutory principles governing the admissibility of opinion evidence. In weighing whether evidence is fact or opinion and whether it is admissible as expert opinion evidence under La.R.S. 15:463 and La.R.S. 15:464, the majority in Wheeler, supra at 80, suggested that the trial judge consider three variables: (1) the degree of concreteness of description or the difference in nearness or remoteness of inference; (2) the purpose for which the testimony is to be admitted; and (3) the potential for its classification as expert testimony. As a corollary to the third variable, we determined supra that two elements were needed to warrant the use of expert testimony:

(a) the subject of the inference must be so distinctly related to some science, profession, business or occupation as to be beyond the understanding of the average layman; and (b) the witness must have sufficient skill, knowledge or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier of fact in his search for truth.

In this case, Officer Taplin's testimony concerning the modus operandi

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421 So. 2d 895, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-montana-la-1982.