State v. Sartain
This text of 618 P.2d 1144 (State v. Sartain) is published on Counsel Stack Legal Research, covering Hawaii Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
[651]*651OPINION OF THE COURT BY
Defendant-appellant Nicholas Pimentel appeals from a judgment of conviction by a jury for having sold heroin and thereby committing the offense of promoting a dangerous drug in the second degree in violation of § 712-1242 of the Hawaii Revised Statutes.
I.
The State’s case primarily consisted of the undercover police officer who testified that he purchased $100 worth of heroin (“$100 paper”) from defendant, and the police chemist who confirmed that the purchased substance was heroin with a weight of 0.06 gram.
Defendant, while denying the sale to the officer, attempted to discredit the State’s case. First, he attempted to make a comparison (give an opinion) between the amount of heroin (in evidence) allegedly purchased by the undercover officer with an amount he had seen in a “$100 paper”1 on one [652]*652previous occasion. Purportedly, he wanted to show that what the officer allegedly purchased for $ 100 was less than what he (defendant) had previously seen in the “$100 paper.” The court denied the testimony because it lacked the proper foundation. Second, defendant also wanted to show that $100 on the streets would have purchased approximately a quarter of a gram of heroin, more than twice the amount of heroin [653]*653received by the undercover officer.2 Because defendant’s testimony was based upon what others had told him, and was not based upon his personal knowledge, the court ruled it was hearsay and denied its admission. In this appeal defendant alleges error by the trial court in its evidentiary rulings. Defendant alleges the court abused its discretion and denied him a fair trial. We find no error by the trial court and affirm the conviction.
Ordinarily, an opinion or conclusion of a witness may not be received in evidence. Eastern Air Lines, Inc. v. American Cyanamid Co., 321 F.2d 683 (5th Cir. 1963); Larson v. Straff, 340 F.2d 180 (3d Cir. 1964); Francis v. Sauve, 222 C.A.2d 102, 34 Cal. Rptr. 754 (1963); In re Estate of Rowley, 257 C.A.2d 324, 65 Cal. Rptr. 139 (1968); Hartley v. Szadkowski, 32 A.D.2d 550, 300 N.Y.S.2d 82 (1969). However, the general rule may be relaxed when from the nature of the subject matter no better evidence can be obtained, and opinion evidence may be admitted if it will aid the triers in their search for truth.3 Drahota v. Wieser, 183 Neb. 66, 157 N.W.2d 857 [654]*654(1968); Brugh v. Peterson, 183 Neb. 190, 159 N.W.2d 321 (1968), 29 A.L.R.3d 236; Walker v. Walker, 106 N.H. 282, 210 A.2d 468 (1965); Kline v. Ford Motor Co., 523 F.2d 1067 (9th Cir. 1975). Thus, an ordinary observer is permitted to state a natural inference from observed conditions or occurrences, or the impressions made in his mind by a number of connected facts which it is impracticable to place before the jury in detail. Albrecht v. Broughton, 6 C.A.3d 173, 181, 85 Cal. Rptr. 659, 664 (1970); Eger v. May Department Stores, 120 C.A.2d 554, 558-59, 261 P.2d 281, 284 (1953); Brown v. Rogers, 19 Md. App. 562, 569, 313 A.2d 547, 552 (1974); Pavlos v. Albuquerque National Bank, 82 N.M. 759, 760-61, 487 P.2d 187, 188-89 (1971); McCormick on Evidence, § 11 at 25, 26 (2d ed. E. Cleary, ed. 1972).
The receipt of opinion or conclusion evidence and the extent to which it will be received are matters resting largely in thé discretion of the court. Sherry v. Asing, 56 Haw. 135, 531 P.2d 648 (1975); Reagan v. Sinclair Refining Co., 319 F.2d 363 (5th Cir. 1963); cert. denied, 376 U.S. 956 (1964); Joseph A. Bass Co. v. United States, 340 F.2d 842 (8th Cir. 1965); Thomas v. Cagwin, 43 Ill. App.2d 336, 193 N.E.2d 233 (1963); Batten v. South Seattle Water Co., 65 Wash.2d 547, 398 P.2d 719 (1965). The foundation for opinion evidence is also a matter within the discretion of the trial court. Stedman v. Norlin, 243 Minn. 389, 68 N.W.2d 393 (1955); Trojcak v. Hafliger, 7 Ill. App.3d 495, 288 N.E.2d 82 (1972); Wells v. Wells, 168 N.W.2d 54 (1969); Crosby v. Davis, 421 S.W.2d 138 (1967).
Turning to the case at bar, defendant was obliged to lay the proper foundation — the time, place and circumstances of the previous occasion that defendant had seen the “$100 paper.” Having failed to lay the proper foundation, his opinion testimony was not admissible. Therefore, we find no abuse of discretion by the court in denying his testimony.
The trial court was also correct in holding that defendant’s statement that $100 on the streets would have purchased approximately a quarter of a gram was hearsay. Evidence is hearsay when its probative force depends, in whole or in part, upon the competency or credibility of some person other than [655]*655the witness. United States v. Ohta, 1 U.S. Dist. Ct. Hawaii 158 (1901); In re Sawyer’s Petition, 229 F.2d 805, 809 (7th Cir. 1956), cert. denied, 351 U.S. 966 (1956), reh. denied, 352 U.S. 860 (1956); Rice v. Moudy, 217 Ark. 816, 817, 233 S.W.2d 378, 380 (1950); In re Porter’s Estate, 208 Okla. 475, 257 P.2d 517, 519 (1953). However, defendant on appeal contends that the trial court should have allowed the hearsay statements into evidence to enhance defendant’s credibility regarding his opinion evidence. Appellate court will not consider claimed error based upon ground to which trial court’s attention was not called. State v. Hashimoto, 46 Haw. 183, 377 P.2d 728 (1962). Consequently, we again find no abuse of discretion by the trial Court here. Neither do we find that the trial court unreasonably prejudiced defendant’s right to a fair trial.
The judgment below is affirmed.
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618 P.2d 1144, 62 Haw. 650, 1980 Haw. LEXIS 233, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sartain-haw-1980.