State v. Tran

709 So. 2d 311, 1998 WL 102990
CourtLouisiana Court of Appeal
DecidedMarch 11, 1998
Docket97-KA-640
StatusPublished
Cited by34 cases

This text of 709 So. 2d 311 (State v. Tran) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Tran, 709 So. 2d 311, 1998 WL 102990 (La. Ct. App. 1998).

Opinion

709 So.2d 311 (1998)

STATE of Louisiana
v.
Quang T. TRAN.

No. 97-KA-640.

Court of Appeal of Louisiana, Fifth Circuit.

March 11, 1998.

*313 Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, for Plaintiff/Appellee.

Richard V. Kohnke, New Orleans, for Defendant/Appellant.

Before GRISBAUM, BOWES and GOTHARD, JJ.

GOTHARD, Judge.

Defendant, Quang T. Tran, appeals his conviction and sentence on a charge of simple burglary of an inhabited dwelling. For reasons that follow, we affirm.

Tran was charged, by bill of information, with simple burglary of an inhabited dwelling, a violation of LSA-R.S. 14:62.2. At his arraignment, the defendant entered a plea of not guilty. He was tried by a jury and found guilty as charged on March 6, 1997. Subsequently, on April 18, 1997, the trial court sentenced the defendant to twelve years at hard labor, without benefit of probation, parole, or suspension of sentence, but with credit for time served. The trial court further ordered that the sentence be served concurrently with any other sentence defendant was serving. Defendant filed timely motions to reconsider sentence and for appeal. The trial court denied the motion to reconsider sentence, and granted the motion for appeal.

The record shows that, on the morning of February 3, 1996, Thao Tran (who is not related to defendant) left his apartment at 1025 Wilber Court in Gretna to go to work. His wife and four children were also out of the apartment during the day. In the afternoon, Thao's wife and his daughter, Hoa, returned to the apartment to find their belongings in great disarray. A window at the front of the apartment had been broken, and glass had fallen inside the residence. The family discovered there were several items missing from the apartment, including jewelry, electronic equipment, cameras and personal papers.

Hoa contacted her father, who called police. Deputy Linden Schmitt of the Jefferson Parish Sheriff's Office responded to the call. Crime scene technician, Daniel Duffourc, also reported to the scene where he dusted for fingerprints. Duffourc was able to recover one latent fingerprint from a piece of the broken window glass. The fingerprint was sent to the latent fingerprint unit of the sheriff's office for analysis. Sergeant Patricia Adams Lusk of that division used the A.F.I.S. computer system to match the latent print to a print of the defendant which was stored in that system.

*314 Detective Mark Berggren of the burglary unit obtained an arrest warrant for defendant on February 12, 1996. Defendant was apprehended on August 28, 1996. Both Thao and Hoa testified at trial that they did not know defendant, and that they had not given defendant permission to go inside their residence.

Based on the above evidence the jury found the defendant guilty as charged.

On appeal to this court, defendant argues six assignments of error. In the first assignment, he maintains the trial court committed error by allowing the state to obtain finger prints from him in open court. He argues this action resulted in an identification which greatly confused the jury and substantially prejudiced the defendant.

During the course of Sgt. Patricia Lusk's testimony, the prosecutor asked her to take defendant's fingerprints in order to compare them to the latent fingerprint which had been recovered at the scene of the burglary. Defense counsel lodged an objection. After a bench conference with the attorneys, the court overruled the objection. Defense counsel then objected to the state's printing all of defendant's fingers. During another bench conference, it was agreed that Sgt. Lusk would print only the finger that corresponded to the latent fingerprint. Sgt. Lusk thereafter took a print of defendant's right thumb. This appears to have been done in the jury's presence.

Minutes later Lusk informed the court out of the jury's hearing that she had inadvertently printed the wrong finger. She indicated that she should have taken a print of the right index finger. The judge ordered the jury removed from the courtroom, and instructed Lusk to take a print of defendant's right index finger. Lusk then informed the court that she had taken a full set of prints from defendant that morning. The court ordered the state to use that set of prints. After further discussion, the court determined that Sgt. Lusk would be allowed to take a single print of defendant's right index finger. This was done out of the jury's presence. The jury was brought back into the courtroom, and Lusk testified that the fingerprint she had just taken from defendant matched State's Exhibit One, the latent fingerprint from the crime scene.

We find no error in the trial court's ruling. It is well settled that the Fifth Amendment protection against self-incrimination applies only to testimonial evidence. Identifying physical characteristics, such as fingerprints, blood, urine, or breath, are outside the scope of this privilege. State v. Taylor, 422 So.2d 109, 116 (La.1982), cert. denied, Taylor v. Louisiana, 460 U.S. 1103, 103 S.Ct. 1803, 76 L.Ed.2d 367 (1983); State v. Bibbens, 525 So.2d 255, 257 (La.App. 1 Cir.1988); State v. Robertson, 509 So.2d 95, 97 (La.App. 1 Cir.1987). Nor, do we find that the manner in which the fingerprints were obtained in this trial was confusing to the jury, or prejudicial to the defendant. Accordingly, we find no merit in this argument.

By his second assignment, defendant complains that the court erred in accepting Sgt. Lusk as an expert in "fingerprint analysis, classification and identification," as the category was too broad, and thus allowed the state to elicit opinion testimony that was inadmissible and prejudicial.

Defendant's argument is not supported by the law. The purpose of an expert witness, particularly in criminal cases, is to provide jurors with a basic knowledge and background on a subject, while the jury retains its ultimate role as fact finder. The jurors relate background knowledge from the expert to facts established by the evidence and make a determination as to defendant's guilt. State v. Soler, 93-1042 (La.App. 5 Cir. 4/26/94), 636 So.2d 1069, 1080, writ denied, 94-0475 (La.4/4/94), 637 So.2d 450, 94-1361 (La.11/4/94), 644 So.2d 1055. The trial court is vested with wide discretion in determining the competence of an expert witness, and its ruling will not be set aside absent manifest abuse of discretion. LSA-C.E. art. 702; State v. Watson, 449 So.2d 1321 (La.1984), cert. denied, 469 U.S. 1181, 105 S.Ct. 939, 83 L.Ed.2d 952 (1985); State v. Bell, 94-49 (La. App. 5 Cir. 6/28/94), 639 So.2d 856.

*315 The record is sufficient to support the trial court's finding that Sgt. Lusk is an expert in fingerprint analysis, classification and identification. Lusk testified that she has been employed by the Jefferson Parish Sheriff's Office for ten years, the last seven years of which she has been assigned to the latent fingerprint unit. In her early years with the sheriff's office, she was assigned to the bureau of identification, where she worked with fingerprints. Lusk has a high school degree and attended college. She has attended several schools and seminars in various aspects of fingerprinting, including a school conducted by the F.B.I., and has been trained in some areas of forensic science.

Sgt. Lusk teaches two seminars yearly on basic fingerprints, advanced latent fingerprints, and the A.F.I.S. system.

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Bluebook (online)
709 So. 2d 311, 1998 WL 102990, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-tran-lactapp-1998.