State v. King
| Decision Date | 06 March 1978 |
| Docket Number | Nos. 60732 and 60733,s. 60732 and 60733 |
| Citation | 355 So.2d 1305 |
| Parties | STATE of Louisiana v. Kerry R. KING. |
| Court | Louisiana Supreme Court |
Ferdinand J. Kleppner, Grisbaum & Kleppner, Metairie, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., Director, Research and Appeals Div., for plaintiff-appellee.
Kerry R. King, Peter J. Pichler, and Timothy L. Lehmann were charged in the same information with the crime of simple burglary of a pharmacy in violation of La.R.S. 14:62.1. King and Pichler were jointly tried by a jury and found guilty as charged. After the convictions, but prior to sentencing, the district attorney filed an information accusing defendant King of a previous felony conviction under La.R.S. 15:529.1 (Habitual Offender Law). After hearing, the court found defendant to be an habitual offender and sentenced him to serve fourteen years at hard labor without benefit of parole, probation or suspension of sentence. On appeal, Kerry R. King relies on eleven assignments of error for reversal of his conviction and sentence. 1
Defendant contends the trial judge erred in excusing a prospective juror for cause after the juror stated that she would be unable to render a verdict in the case because, under the guiding principles of her religion, she could not judge her fellowman.
Contrary to defendant's assertion, the record reflects that the prospective juror was not excused for cause but, rather, was excused as a result of a peremptory challenge made by the state. The motive for the exercise of peremptory challenges ordinarily is not subject to judicial review. State v. Haynes, 339 So.2d 328 (La.1976); State v. Nix, 327 So.2d 301 (La.1975); State v. Carter, 301 So.2d 612 (La.1974). Accordingly, Assignment of Error No. 1 is without merit.
Defendant contends the trial judge erred in permitting Deputy Robert Fuselier to testify that he saw defendant on the day that the crime was committed in that this testimony was irrelevant.
The record reflects that during the early morning hours of October 20, 1975, while enroute to an investigation in Jefferson Parish, two New Orleans police officers noticed a vehicle occupied by three men parked alongside of a Metairie drugstore. After one of the occupants exited the vehicle and walked toward the pharmacy's front entrance, the other two men drove off but passed in front of the store several times. After observing these activities, the officers departed the scene intending to notify Jefferson Parish police officials of the incident. Meanwhile, in response to an ADT alarm triggered at the pharmacy, Jefferson Parish Deputy Fuselier arrived at the scene and, after noting that the door to the store was slightly ajar, requested assistance. Lehmann, defendant's alleged co-participant in the crime, was subsequently arrested inside of the pharmacy. Having observed the arrival of Jefferson Parish police at the drugstore, the two New Orleans officers returned to the store and related to the Jefferson police that they had seen a car occupied by two men circling the area. They then observed the Jefferson police bringing Lehmann out of the drugstore. At that moment, the same vehicle was spotted by the two officers travelling toward the Orleans Parish line. The New Orleans police officers pursued the vehicle and apprehended the two suspects, later identified as defendant and Peter Pichler, in Orleans Parish. A wallet containing Lehmann's identification was recovered from the front seat of the vehicle. The suspects were then returned to the pharmacy where they were surrendered to the Jefferson Parish deputies.
This court has consistently held that the trial judge is vested with wide discretion in determining the relevancy of evidence, and his ruling will not be disturbed on appeal in the absence of a clear showing of abuse of discretion. State v. Russell, 352 So.2d 1289 (La.1977); State v. George, 346 So.2d 694 (La.1977); State v. Owens, 301 So.2d 591 (La.1974); State v. Ackal, 290 So.2d 882 (La.1974). In the instant case, the testimony of Deputy Fuselier that he had seen defendant and Pichler on the day of the burglary corroborated the testimony of one of the New Orleans police officers that defendant and Pichler were taken to the pharmacy and surrendered to the Jefferson Parish police after they were apprehended in Orleans Parish. As such, the testimony was relevant and admissible. La.R.S. 15:441. Hence, the trial judge did not abuse his discretion in permitting the witness to testify to this fact.
Assignment of Error No. 2 lacks merit.
Defendant contends the trial judge erred in permitting Deputy Robert Fuselier to testify, over defense objection, about a written inventory taken by him of bottles of prescription drugs found in a floral pillowcase at the scene of the burglary. He argues that this testimony constituted inadmissible hearsay evidence.
Hearsay evidence is testimony in court, or written evidence of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter. C. McCormick, Evidence, § 246 (Cleary ed. 1972).
In the present case, the inventory of the items found in the pillowcase was made and written down by Deputy Fuselier. The owner of the pharmacy was present at the time and participated in the taking of the inventory. Hence, Deputy Fuselier's testimony relative to the taking of the inventory was based upon facts within his knowledge (La.R.S. 15:463) and did not constitute hearsay. State v. White, 247 La. 19, 169 So.2d 894 (1964). Moreover, the owner of the pharmacy also testified at trial concerning his participation in the taking of the inventory and was subject to cross-examination by the defense. Accordingly, the trial judge properly permitted Deputy Fuselier to testify as to the inventory.
Assignment of Error No. 3 is without merit.
Defendant contends the trial judge erred in permitting a state witness to testify as to what constitutes a controlled dangerous substance. He argues that, since the witness was not shown to have any special training or experience in this particular matter, his testimony was inadmissible opinion evidence.
Joseph Tobin, a pharmacist and owner of the burglarized pharmacy, testified that he was specially licensed to dispense controlled dangerous substances and did in fact dispense them at his pharmacy. In response to questioning by the state, the witness related that he dispensed opiates, morphene base drugs and barbiturates. He was then asked whether to his knowledge those drugs are controlled dangerous substances. Defendant's objection to this inquiry was overruled by the trial judge and the witness was allowed to testify as to what is a controlled dangerous substance.
In the instant case, the witness was a pharmacist and was specially licensed to dispense controlled dangerous substances, which he in fact did store and dispense at his pharmacy. In view of his training and experience, the witness was qualified to give testimony relative to what constitutes a controlled dangerous substance. La.R.S. 15:464. Hence, the trial judge did not err in permitting the witness to so testify.
Assignment of Error No. 4 lacks substance.
Defendant contends the trial judge erred in permitting the state to introduce in evidence a pillowcase, several bottles of prescription drugs and a wallet. He argues that these items were not properly identified, either visually or by chain of custody, as being related to the case.
When Lehmann, defendant's co-participant in the crime, was apprehended in the pharmacy, a yellow floral pillowcase containing numerous bottles of prescription drugs was found on the floor of the pharmacy by Deputy Fuselier. With the assistance of Joseph Tobin, owner of the pharmacy, Deputy Fuselier inventoried the bottles and thereafter placed them back into the pillowcase. The pillowcase was then tied, marked with an evidence tag bearing Deputy Fuselier's signature and stored in the evidence locker at the police station. Similarly, when defendant and Pichler were apprehended by Officer Morse, a wallet belonging to Lehmann was recovered by Officer Morse from the front seat of the vehicle driven by defendant. The wallet was surrendered by Morse to the Jefferson Parish police on the following evening. Thereafter, Deputy Fuselier transferred the wallet along with the pillowcase and bottles of prescription drugs to the deputy clerk of court who sealed the items in a box where they remained until the day of trial.
At trial, Deputy Fuselier positively identified the pillowcase as the one he recovered on the night of the crime and testified that the bottles of prescription drugs displayed to him were similar in appearance to those found in the pillowcase. In addition to identifying the pillowcase, Tobin was able to positively identify the majority of the bottles contained therein as those sold at his pharmacy by the price code markings placed by him on the bottles prior to the commission of the crime. Officer Morse positively identified the wallet as the one recovered by him from the front seat of the car driven by defendant. Over defense objection, the trial judge allowed the pillowcase, the bottles of prescription drugs and the wallet to be admitted in evidence.
To admit demonstrative evidence at a trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it was offered in...
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