State v. Williams

386 So. 2d 1342
Supreme Court of Louisiana·Decided September 15, 1980·No. 65270·Published·Cited by 19 cases

Opinion

386 So.2d 1342 (1980)

STATE of Louisiana
v.
Willie J. WILLIAMS.

No. 65270.

Supreme Court of Louisiana.

April 7, 1980.
Concurring Opinion September 15, 1980.

*1343 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.

Robert Barnard, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.

MARCUS, Justice.

Willie J. Williams was charged by bill of information with possession of heroin with intent to distribute in violation of La.R.S. 40:966. After trial by jury, he was found "guilty of possession of a controlled dangerous substance." Thereafter, the district attorney filed an information accusing defendant of prior felony convictions pursuant to La.R.S. 15:529.1 (Habitual Offender Law). After a hearing, the trial judge found defendant to be a third felony offender. He vacated the sentence previously imposed and sentenced defendant to serve twenty years at hard labor with credit for time served. On appeal, defendant relies on six assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in accepting Officer Charles Crone as an expert in the field of narcotics identification.

Officer Crone testified that he was a criminologist with the New Orleans Police Department for five and one-half years. His duties consisted of detecting and identifying narcotics. He received a bachelor of science degree in biology from Louisiana State University and had twenty-five credit hours in college chemistry courses.

La.R.S. 15:466 sets out the guidelines for qualification of expert witnesses:

*1344 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 settled that the competence of an expert witness is a question of fact to be determined within the sound discretion of the trial judge, and his rulings on the qualifications of expert witnesses will not be disturbed in the absence of manifest error. State v. Drew, 360 So.2d 500 (La.1978) cert. denied, 439 U.S. 1059, 99 S.Ct. 820, 59 L.Ed.2d 25 (1979); State v. Titus, 358 So.2d 912 (La.1978); State v. Lewis, 353 So.2d 703 (La.1977).

The record discloses that Officer Crone possessed sufficient education and practical experience to qualify as an expert in narcotics identification. Moreover, he had previously qualified as an expert in narcotics identification in the district courts of this state. We are unable to say that the trial judge abused his discretion in accepting Officer Crone as an expert in narcotics identification.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in permitting testimony, over his objection, connecting him to the evidence prior to it being identified as related to the case.

La.Code Crim.P. art. 773 provides:

Neither the state nor the defendant can be controlled by the court as to the order in which evidence shall be adduced; but when the evidence requires a foundation for its admission, the foundation must be laid before the evidence is admissible.

Officer Carl Crone was the first witness called by the state. During direct examination by the state, the following exchange took place:

Q Mr. Crone, did you bring with you, to court today, any documents that would be evidence?

A Yes, I brought an evidence envelope bearing the name, Willie J. Williams, and another defendant under police item number 1361174.

Officer Crone was a chemical expert called to testify as to the results of his analysis of the substance seized from defendant. The heroin was not admitted in evidence during his testimony. Subsequently, Officer Robert Barare testified that the same evidence envelope was the one in which the "tannish powder" seized from defendant was placed. Barare stated that he placed the substance inside the envelope, signed, dated and sealed it, and gave it to Officer Crone who later identified the substance as heroin. Because the evidence was introduced in evidence following Officer Barare's testimony, the state properly identified the evidence as related to the case prior to introduction by establishing the custody of the heroin from the time it was seized from defendant to the time it was offered in evidence. Hence, defendant's contention is without substance.

Defendant for the first time in brief to this court contends that the testimony of Officer Crone was inadmissible hearsay in that the testimony rested upon observations of the arresting officer not presently testifying. It is well settled that a new basis for an objection may not be raised for the first time on appeal. State v. Quincy, 363 So.2d 647 (La.1978); State v. Drew, 360 So.2d 500 (La.1978), cert. denied, 439 U.S. 1059, 99 S.Ct. 820, 59 L.Ed.2d 25 (1979); State v. Williams, 343 So.2d 1026 (La.), cert. denied, 434 U.S. 928, 98 S.Ct. 412, 54 L.Ed.2d 287 (1977). In any event, Officer Barare identified the contents of the evidence envelope as items taken from defendant at the time of his arrest. While Officer Crone's testimony was hearsay, it was merely cumulative. Hence, admitting his testimony was harmless error.

Assignment of Error No. 2 is without merit.

*1345 ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial judge improperly commented on the evidence at trial. An objection was properly noted.

During the cross-examination by defense counsel of Officer James Kirkpatrick, one of the arresting officers, the following exchange took place:

Q How many arrests were made?
A To the best of my knowledge, two.

Q May I see the report again? (Defense counsel looks at report). Where [sic] three people were arrested?

A Not that day.
Q Two were arrested on the scene?
A Yes.
Q Both of them are charged the same way?
BY [ASSISTANT DISTRICT ATTORNEY]:
Objection, your honor.
BY THE COURT:
Sustained.
BY [DEFENSE COUNSEL]:
You arrested them for probable cause?
BY [ASSISTANT DISTRICT ATTORNEY]:
Objection to that line of questioning. There is one defendant on trial today.
BY THE COURT:
I presume you asked that question about the defendant?
BY [DEFENSE COUNSEL]:
Sir, the incident of the arrest.
BY THE COURT:
You are asking about this defendant? Are you referring to this defendant?
BY [DEFENSE COUNSEL]:
To this defendant?
BY THE COURT:
To this defendant before the court.
BY [DEFENSE COUNSEL]:
I am asking if he made other arrests simultaneously.
BY THE COURT:
He has answered that.
BY [DEFENSE COUNSEL]:

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