State v. Wheeler

416 So. 2d 78
CourtSupreme Court of Louisiana
DecidedJune 21, 1982
Docket81-KA-2537
StatusPublished
Cited by86 cases

This text of 416 So. 2d 78 (State v. Wheeler) 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. Wheeler, 416 So. 2d 78 (La. 1982).

Opinion

416 So.2d 78 (1982)

STATE of Louisiana
v.
Bruce WHEELER.

No. 81-KA-2537.

Supreme Court of Louisiana.

June 21, 1982.

William J. Guste, J., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Richard Petre, John Craft, Spencer Kimball, Asst. Dist. Attys., for plaintiff-appellee.

Lloyd N. Frischhertz, Irvy E. Cosse, Jr., Seelig, Cosse & Frischhertz, New Orleans, for defendant-appellant.

DENNIS, Justice.[*]

Defendant, Bruce Wheeler, was convicted by a jury of possession of marijuana with intent to distribute, La.R.S. 40:967, sentenced to three years at hard labor, and fined $1,000. Defendant appealed and argues eight assignments of error. Because we conclude the trial judge committed reversible *79 error in admitting into evidence improper expert testimony over defendant's objection, the defendant's conviction and sentence are reversed.

Officers Schexnayder and Adams of the New Orleans Police Department were parked on Law Street writing a report on March 17, 1981. They became interested in the activities of a man standing by a wall about one-half block down the street. During a period of thirty minutes he was approached by several juveniles, each of whom handed the man something and received an item in return from a brown Schwegmann's grocery bag near his feet. Before approaching the man Schnexnayder and Adams summoned other police officers for assistance, instructing them to cover the suspect's rear in case he took flight. As officers Schexnayder and Adams drove down the street, the man picked up his Schwegmann bag, dropped it in a garbage can and walked away from them. The suspect was overtaken by Officer Adams, apprehended, patted down for weapons, advised of his rights, and placed in the police vehicle. Meanwhile, Officer Schexnayder retrieved the brown Schwegmann bag from the garbage can. It contained ten small coin envelopes and a plastic envelope containing marijuana, a photograph of the defendant with a gun in his waistband, and a purple Crown Royal bag containing a loaded pistol. After arriving at the police station, the police removed $359 and six bullets from defendant's pockets.

Defendant contends that the trial court erred in determining the admissibility of expert opinion evidence. Robert Humphrey, a narcotics officer with the New Orleans Police Department, was accepted by the court as an expert in narcotics transactions, particularly those involving marijuana. The prosecutor summarized the testimony of the arresting officers as to the events surrounding their encounter with the defendant in asking a hypothetical question as follows:

"Q. At this time I will ask you to assume that on an afternoon in March, 1981 two New Orleans police officers see an individual at the intersection of Law and Congress Streets. Please assume also at least three times this individual is approached by three black males and at this time the defendant reaches inside a grocery bag by his foot and gives the three black males something. The police approach this individual, he puts the bag in a garbage can nearby and leaves the scene. The police apprehend this individual and upon searching his person find $359.00 in cash and six live rounds of ammunition and please assume also the police inside the bag in the garbage can find ten coin envelopes of marijuana, one plastic bag of marijuana and one Magnum revolver. I am asking you to assume these ten coin envelopes here are the ten coin envelopes in the hypothetical question and also the envelope marked S-3 is the plastic bag in the hypothetical question. In your expert opinion what is the likelihood of this individual being involved in the distribution of marijuana?" [emphasis added]

The defense counsel objected:

"I object to this, I don't think that the witness is in a position to testify to that, I don't think the witness necessarily has all of the information that he would have to give an opinion even if he could, such as if the brown paper bag was the same this person they were watching had or a different bag. I don't think this case is a typical one for this hypothetical question."

The objection was overruled and the witness answered:

"In my opinion the person would be involved in the distribution of marijuana, he might have a dime bag, but not several dime bags and he would not have $359.00." [emphasis added]

Later in the trial the prosecution asked the expert witness: "What is the significance of the revolver found?" After defense counsel's objection was overruled, the witness answered:

"The reason the subject had the revolver was to keep from being ripped off, due to the location and amount of money and *80 what he was selling. It is quite common for someone in distribution to have a revolver."

Our statutes set forth the broad principles governing the admissibility of expert opinion evidence. Generally speaking, a witness can testify "only as to facts within his knowledge, and neither as to any recital of facts heard by him, nor as to any impression or opinion that he may have." La.R.S. 15:463. An exception to this rule is provided, however, for expert witness testimony:

"On questions involving a knowledge obtained only by means of a special training or experience the opinion of persons having such special knowledge are admissible as expert witnesses." La.R.S. 15:464.

In deciding whether to admit expert witness testimony, a trial judge should recognize that the foregoing statutory precepts are not detailed, specific rules but broad, guiding principles containing several variables: First, the terms "fact" and "opinion" denote merely a difference of degree of concreteness of description or a difference in nearness or remoteness of inference. The opinion rule operates to prefer the more concrete description to the less concrete, the direct form of statement to the inferential. Second, the purpose for which the testimony is admitted should have an effect upon the degree of concreteness required. As Professor McCormick observes:

"* * * In the outer circle of collateral facts, near the rim of relevancy, evidence in general terms will be received with relative freedom, but as we come closer to the hub of the issue, the courts have been more careful to call for details instead of inferences.
"* * *
"The trial judge may well be more liberal in the use of his discretion to admit opinions and inferences as to collateral matters and less liberal in order to see that the concrete details are brought out as to more crucial matters. Is it expedient to go further and to tie his hands by a rule forbidding opinion-evidence as to these `ultimate' matters?" McCormick on Evidence, § 12, p. 26 (1972).

Third, the preference for direct, concrete testimony and the reluctance to admit opinions and inferences as to matters crucially at issue are somewhat relaxed, if the opinion or inference to be expressed may be classified as expert testimony. To warrant the use of expert testimony two elements are required: (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.

McCormick on Evidence, §§ 12, 13 (1972). See Cramer v. Theda Clark Memorial Hospital,

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Bluebook (online)
416 So. 2d 78, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wheeler-la-1982.