State v. Brooks, 47759

• Decision Date: 14 June 1975
• Docket Number: No. 47759,47759
• Citation: 217 Kan. 485,536 P.2d 1365
• Parties: STATE of Kansas, Appellee, v. Joe BROOKS, Appellant.
• Court: Kansas Supreme Court

Page 1365

536 P.2d 1365

217 Kan. 485

STATE of Kansas, Appellee, v. Joe BROOKS, Appellant.

No. 47759.

Supreme Court of Kansas.

June 14, 1975.

Syllabus by the Court

1. K.S.A. 60-456(b), considered and construed in conjunction with K.S.A. 60-458, provides an expert witness may state his opinion without first specifying the data on which he bases his opinion when within the scope of his special knowledge, skill, experience, or training, and when based on facts or data perceived by or personally known or made known to him at the hearing.

2. Only a material variance between pleading and proof which tends to mislead an accused in the preparation and conduct of his defense is of consequence upon appellate review.

3. In an appeal from a conviction of possession with the intent to sell and the sale of a narcotic drug, the record is examined and it is held: The trial court did not err (1) in admitting the opinion of an expert witness that the substance sold was heroin without first requiring the introduction of written results of the tests performed by the witness, or (2) in ruling there was no material variance between pleading and proof.

David R. Gilman, Overland Park, argued the cause and was on the brief for appellant.

Andrew Heyl, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Margaret Jordan, Dist. Atty., were with him on the brief for appellee.

OWSLEY, Justice:

Defendant, Joe Brooks, appeals from a conviction of the possession of heroin with intent to sell, and sale of same, in violation of K.S.A.1974 Supp. 65-4127a. The issue on appeal concerns the admissibility of certain testimony by the state's expert witness.

As part of its case-in-chief, the state called Ronald Jones, a forensic chemist for the Kansas Bureau of Investigation, who analyzed the drugs in question for the state. After testifying in detail as to his background and qualifications as a forensic chemist, Jones stated his opinion of the chemical composition of the substance sold by defendant to an agent of the Kansas attorney general's office and identified at trial as state's exhibit 1-A. It was his conclusion, based on his testing, that the substance analyzed contained 'lactose, and a brown material which contains heroin.'

Defendant first claims there was insufficient foundation established for the introduction into evidence of Jones' opinion as to the nature of the substance tested. Defendant does not question his general expertise in the filed of forensic chemistry, but argues it was incumbent upon the state to first introduce the written results of the tests performed before the witness could state his opinion as to what the substance contained.

In support of his argument defendant relies upon the case of Lefebvre v. Western Coal and Mining Co., 131 Kan. 1, 289 P. 456, wherein this court held it was error to permit a medical expert to testify as to what was shown by an electrocardiogram without first producing the written product of the test in court and submitting it to the opposing party for the purpose of cross-examination in case there was an erroneous interpretation of the test results.

As the state correctly points out, the Lefebvre case arose prior to the adoption in Kansas of the Rules of Evidence under Article 4 of the Code of Civil Procedure. The Kansas Code now provides certain guidelines for the admissibility of expert testimony. K.S.A. 60-456 states in part:

'(b) If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.'

This section must be read in conjunction with K.S.A. 60-458:

'Questions calling for the opinion of an expert witness need not be hypothetical in form unless the judge in his discretion so requires, but the witness may state his opinion and reasons therefor without first specifying data on which it is based as an hypothesis or otherwise; but upon cross-examination he may be required to specify such data.'

These sections clearly provide that a witness may express his opinion without first specifying the data on which the opinion is based. If opposing counsel desires to inquire as to such date specifically, 60-458 allows him to do so on cross-examination.

In Casey v. Phillips Pipeline Co., 199 Kan. 538, 431 P.2d 518, we held that when an expert witness testified as to value, relying in part on market data and trade journals, such data and journals did not have to be admitted in evidence before his testimony was admissible.

As a general rule, the qualifications of an expert witness and the admissibility of his testimony are matters for determination by the trial court in the exercise of its discretion. (Howard v. Stoughton, 199 Kan. 787, 433 P.2d 567; Ziegler v. Crofoot, 213 Kan. 480, 516 P.2d 954.) Here, the witness Jones gave his opinion as to the nature of the substance,...