State v. Belote, 47181
| Decision Date | 03 November 1973 |
| Docket Number | No. 47181,47181 |
| Citation | 516 P.2d 159,213 Kan. 291 |
| Parties | STATE of Kansas, Appellee, v. Velton BELOTE, Appellant. |
| Court | Kansas Supreme Court |
1. In a prosecution for sale of narcotics where exhibits are received in evidence consisting of material allegedly sold by the defendant and later subjected to chemical analysis for the purpose of determining their narcotic character, the requisite identity to be proved in connection with admission of the exhibits into evidence is that of the material sold with that of the material analyzed.
2. Drug offenses per se do not involve dishonesty or false statement in their commission; hence K.S.A. 60-421 renders convictions for such offenses inadmissible for the purposes of impairing the credibility of a witness.
3. Evidence of traits of a witness' character other than honesty or veracity or their opposites, as well as evidence of specific instances of the witness' conduct relevant only to prove such traits of character, are inadmissible as affecting credibility.
4. For the purpose of discrediting a witness, evidence is not admissible to show that he is a user of drugs, or to show the effect of the use of such drugs, unless it is shown that the witness was under their influence at the time of the occurrences as to which he testifies, or at the time of the trial, or that his mind or memory or powers of observation were affected by the habit.
5. The scope and extent of cross-examination of a witness on collateral matters for the purpose of impeachment rests largely in the trial court's discretion.
6. Where a jury is given an instruction setting forth guidelines for determining the credibility of witnesses generally it is not necessary to give a separate instruction on the credibility of an expert witness.
7. In a prosecution for sale of narcotics the record on appeal is examined and it is held: The trial court did not err in (1) admission into evidence of four exhibits; (2) rulings made upon cross-examination of a state witness and upon redirect examination of a defense witness; (3) denial of defendant's motion to discharge; or (4) instructions to the jury.
Robert M. Brown, Topeka, argued the cause and was on the brief for appellant.
John H. Taylor, County Atty., argued the cause, and Vern Miller, Atty. Gen., was with him on the brief for appellee.
HARMAN, Commissioner:
Velton Belote was convicted by a jury of three counts of selling heroin in violation of K.S.A. 1971 Supp. 65-2502 (). New trial was denied, sentence was imposed and Belote now appeals.
The sales allegedly were made by appellant to an undercover agent at different locations in Junction City on May 23, May 25, and June 7, 1972 (two separate sales on May 25th were consolidated into one count). The agent was one employed by the attorney general. She testified as to each of her purchases from appellant of tinfoil packages (from one to four on each occasion) purportedly containing heroin. After each purchase the agent placed the packages in a brown envelope, made identifying marks on each envelope and personally placed each envelope in the evidence locker at the laboratory of the Kansas Bureau of Investigation. At appellant's preliminary hearing and later at trial in district court the agent identified four exhibits as the particular envelopes thus handled by her. Also at preliminary examination and at trial a forensic chemist employed by the K.B.I. identified the same exhibits as items he has personally removed from the K.B.I. evidence locker. He further testified he had analyzed a white powder contained in each of the tinfoil packages and that such analysis revealed the powder to be heroin. The exhibits were received in evidence over appellant's objection. Complaint is renewed on appeal.
The bases of appellant's objection is that no proper foundation was laid for receiving the exhibits into evidence in that there was no showing these were the same exhibits which had been introduced in evidence at appellant's preliminary examination and no showing was made as to their custody and control since the time of that event. The objection misconceives the character of the exhibits and the facts sought to be developed thereby. Of and in themselves the exhibits had little or no testimonial value other than to demonstrate generally the nature of the packages allegedly purchased from appellant by the undercover agent, the contents of which were later subjected to chemical analysis, and the method used to preserve their identity. It was not incumbent upon the prosecution to make the showing urged by appellant or even to show that the contents of the packages were in the same condition at the time of trial in district court as when sold by appellant to the agent. There is no indication of tampering with the exhibits and it must be recognized that many substances may be either wholly or partially consumed or changed in appearance by reason of chemical analysis. Beyond this, the critical fact to be proven in connection with these exhibits was that the contents of the packages sold by appellant consisted of heroin. In such a situation the identity to be proved is that of the material sold with the material analyzed. Here the prosecution clearly established the essential links in the chain of evidence to show that he powder analyzed was that sold by appellant to the agent. No error derived from admission of the exhibits.
Appellant asserts the trial court improperly restricted his cross-examination of the undercover agent as to her prior experience with drugs. The complaint arises from the following, which occurred after she testified she had started to work for the attorney general 'mainly because of what she had seen drugs doing to her friends':
'CROSS EXAMINATION BY MR. BROWN:
'
'
'THE COURT: I'm sorry, I didn't hear you, Mr. Brown.
'
The assertion of error based upon the exclusion of testimony as to whether the witness had ever been convicted of any offense related to drugs may be quickly determined. K.S.A. 60-421 provides:
Drug offenses per se do not involve dishonesty or false statement in their commission; hence 60-421 renders convictions for such offenses inadmissible for the purposes of impairing the credibility of a witness.
A more serious question arises in the adverse rulings made on the three remaining questions. The witness did testify she had had some experience with drugs; that she did not know whether she was ever really addicted or not and she had not been hospitalized for treatment. Objections were sustained to questions...
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State v. Vance
...the chain of custody is essential to show that the substance analyzed was the substance seized from the defendant. State v. Belote, 213 Kan. 291, 516 P.2d 159, 161 (1973). After chemical analysis, however, the substance itself is not vital evidence. State v. White, 213 Kan. 276, 515 P.2d 10......
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