State v. Johnson

• Decision Date: 02 May 1972
• Docket Number: No. S,S
• Parties: STATE of Wisconsin, Respondent, v. Michael K. JOHNSON, Appellant. tate 102.
• Court: Wisconsin Supreme Court

Page 717

196 N.W.2d 717

54 Wis.2d 561

STATE of Wisconsin, Respondent, v. Michael K. JOHNSON, Appellant.

No. State 102.

Supreme Court of Wisconsin.

May 2, 1972.

The appellant Michael K. Johnson was charged and convicted of furnishing in the capacity of a supplier a dangerous drug (LSD) (sec. 151.07(12)(b), Stats.1967). ¹ Upon his conviction, on June 23, 1970, he was sentenced to an indeterminate term of not more than three years in the Wisconsin State Reformatory at Green Bay.

Robert D. Junig, Beloit, for appellant.

Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for respondent.

HALLOWS, Chief Justice.

Johnson claims the trial court erred in permitting a lay person to identify the drug as lysergic acid diethylamide (LSD) and absent such identification the evidence was insufficient to support the jury verdict. He also claims there was no credible evidence he was a supplier within the meaning of sec. 151.07(12)(b) ² as that term is defined in sec. 151.07(1)(k), Stats.1967.

The evidence shows that on the evening of February 5, 1970, Johnson in the company of Thomas Bernstein aged 19 and Michael Cook went to 1015 Chapin street in the city of Beloit and there traded a quantity of marijuana for three aspirin-sized tablets purported to contain LSD. Johnson and Cook orally consumed the tablets immediately but Bernstein waited a while before taking the tablet that Johnson gave him.

When Bernstein related these events at the trial as a state witness, the defense objected on the ground Bernstein was incompetent to give an opinion that the tablets were LSD. In an attempt to qualify Bernstein outside of the presence of the jury, he gave his opinion of the drug as being LSD. He testified he had taken about 130 trips on LSD and had seen Cook under the influence of the drug several times. The tablets consumed were aspirin-size with a purple spot on one side. Bernstein testified he had taken such tablets several times before and recognized them as LSD. He described the reactions he had to the pill he took on February 5th and the reactions Cook and Johnson said they were having, such as dilation of the pupils, the appearance of objects as 'crystal clear,' and an emotional state. Bernstein testified that his reaction to the pill he took on February 5th was similar to the reactions he had by taking LSD. On cross-examination he stated LSD was tasteless, colorless, and odorless, and one's knowledge of whether he actually received LSD in a purchase was based largely upon the representations of the seller. Bernstein admitted he had not taken chemistry in school; he had only gone to college a few months and had read only one book on drugs. His opinion, however, was based on the appearance of the pill he received, the veracity of the seller, his reactions and those of Cook and Johnson after ingesting the pill, and his past experience with the drug. The defense offered to prove by an expert witness Dr. Melvin Weinswig, who held a Ph.D. in medicinal chemistry, that a person could not identify LSD by the effects the substance had on a user. The trial court held Bernstein was competent to give his opinion at the trial and Dr. Weinswig's testimony would be received at trial and would go to the weight of Bernstein's testimony, not to its admissibility.

The issue is not whether expert testimony or opinion is necessary to prove the identity of a dangerous drug, but whether Bernstein can qualify to give an opinion that the tablet given him contained LSD. This court has long held that expert testimony should be adduced concerning matters involving special knowledge or skill or experience on subjects not within the realm of ordinary experience or knowledge of mankind. Pollock v. Pollock (1956), 273 Wis. 233, 77 N.W.2d 485; Cramer v. Theda Clark Memorial Hospital (1969), 45 Wis.2d 147, 172 N.W.2d 427. The test or principal rule of admissibility of expert testimony is 'whether the members of the jury having that knowledge and general experience common to every member of the community would be aided in a consideration of the issues by the testimony offered and received.' Anderson v. Eggert (1940), 234 Wis. 348, 361, 291 N.W. 365, 370; see also Kreyer v. Farmers' Co-operative Lumber Co. (1962), 18 Wis.2d 67, 75, 117 N.W.2d 646; and Schmidt v. Chapman (1964), 26 Wis.2d 11, 25, 131 N.W.2d 689. The lack of expert testimony in case where it is necessary constitutes an insufficiency of proof. Cramer v. Theda Clark Memorial Hospital, supra, 45 Wis.2d at 152, 172 N.W.2d 427; see also Cedarburg Light & Water Comm. v. Allis-Chalmers (1967), 33 Wis.2d 560, 148 N.W.2d 13, 149 N.W.2d 661. It must be conceded the jury in this case needed expert testimony in order to determine whether the tablet Johnson gave Bernstein and Cook was the dangerous drug LSD. Whether a given substance is in fact LSD is beyond the ken of laymen of ordinary experience. See People v. Williams (1962), 25 Ill.2d 562, 185 N.E.2d 686.

Experitise in the field of dangerous drugs is not necessarily restricted to medical doctors and pharmacists. Experience is a proper basis for giving an expert opinion as well as technical and academic training. Luke v. Northwestern Nat. Casualty Co. (1966), 31 Wis.2d 530, 143 N.W.2d 482; Netzel v. State Sand & Gravel Co. (1971), 51 Wis.2d 1, 186 N.W.2d 258. Indeed, experience in some cases may be the more important element of expertise. Whether an opinion of a witness may be given depends upon his superior knowledge in the area in which the precise question lies. It might well be that a person is an expert in relation to some drugs and not of other drugs. We have no previous case in this state determining whether a drug user from his personal experience in using a drug and observing other drug users and from his conversation with them may qualify as an expert entitled to identify a substance from its appearance and its effect on him and his companions who have ingested the substance.

Here, Bernstein was familiar with LSD and its effect upon a person, including himself. Although Dr. Weinswig testified no lay person could identify LSD by appearance and its effect, such testimony goes to the weight of Bernstein's testimony and not to his qualifications for forming an opinion. In making this statement that appearance and effects were not the test to determine LSD, Dr. Weinswig did state the symptoms and effects related by Bernstein from ingesting the drug were consistent with the ingestion of LSD. This testimony distinguishes the facts of this case from Lubner v. Peerless Insurance Co. (1963), 19 Wis.2d 364, 120 N.W.2d 54, where an undertaker stated upon inserting a drain tube in the deceased's lung he drew out about a glassful of water and thereupon concluded death was the result of drowning. A physician testified such procedure was worthless to determine the cause of death because water in the lungs was not necessarily an indication of drowning, and the layman therefore was held incompetent to give an opinion as to the cause of death. Following this case, this court held in Novakofski v. State Farm Mut. Auto. Ins. Co. (1967), 34 Wis.2d 154, 148 N.W.2d 714, that when a physician states a layman cannot diagnose coronary thrombosis, such testimony would destroy the competency of a lay coroner from concluding the coronary thrombosis was the cause of death. The situation here is quite different; we are not...