Davis v. State

Andrews, Judge,

dissenting..

I respectfully dissent. The trial court did not err by overruling the defendant’s objection to the officer’s expert opinion testimony that ten “hits” of heroin found on the defendant’s person was more than a heroin user would carry for personal consumption.

The State’s first witness was a City of Atlanta police officer, who had been assigned to the “Red Dog” anti-drug squad for over two years. The officer testified that during this assignment he had received formal training in drug law enforcement as well as hands-on tactical experience in narcotics investigation. Based on this testimony, which was the only evidence introduced by the State at the time, the State moved the trial judge to qualify the officer as an expert in narcotics investigation. After being allowed, upon request, to cross-examine the witness, defense counsel objected to the motion on grounds that the State had not. shown any expert testimony from the officer was relevant, and there was not a sufficient foundation. The trial court sustained the objection. The majority concludes that by sustaining this objection the trial judge ruled the officer was not qualified to give expert testimony regarding narcotics investigations. Accordingly, when the trial judge, over defense objection, subsequently allowed the officer to give his expert opinion about the quantity of heroin on the defendant’s person, the majority found reversible error.

I find no contradiction between the trial judge’s initial refusal to formally qualify the officer as an expert, and the judge’s subsequent ruling admitting the officer’s expert opinion testimony. When the State moved for the trial judge to explicitly recognize the officer as an expert, there was no other evidence in the record, and the State offered no explanation, by proffer or otherwise, to show the nature of the expert testimony it sought to introduce, and its relevance to an issue before the court. Under OCGA § 24-9-67, “[t]he opinions of experts on any question of science, skill, trade, or like questions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses.” (Emphasis supplied.) “An expert witness is one who through education, training, or experience has peculiar knowledge concerning some matter of science or skill to which his testimony relates.” (Emphasis supplied.) Tifton Brick &c. Co. v. Meadow, 92 Ga. App. 328, 330-331 ( 88 SE2d 569 ) (1955). This means not only must the witness tendered as an expert be qualified by education, training, or experience to render an opinion within the scope of a particular expertise, but the expert testimony sought to be intro *576 duced through the witness must be relevant to an issue in the case. If there is no relevant expert testimony to be given, there is no reason to recognize the witness as an expert regardless of how qualified he or she may be. See Lee v. State, 262 Ga. 593, 594 ( 423 SE2d 249 ) (1992) (trial court properly sustained objection that expert testimony was not relevant to the issues at trial); Mantegna v. Professional Auto Care, 204 Ga. App. 254, 255 ( 419 SE2d 43 ) (1992) (objection to offer irrelevant expert testimony properly sustained); Barnes v. Wall, 201 Ga. App. 228 ( 411 SE2d 270 ) (1991) (trial court erred by admitting irrelevant expert testimony). 2

The trial judge did not rule the officer was not qualified as an expert in narcotics investigations, rather the court sustained the defense objection that the State had not shown the relevance of any expert opinion it sought to introduce through the witness. Since expert opinion testimony, like any other evidence, must be relevant to an issue in the case to be admissible, it was within the judge’s discretion to refuse to formally recognize the witness’ qualifications as an expert until the State demonstrated the relevance of such qualification. In this case, the State subsequently demonstrated relevance by offering the officer’s expert opinion on the quantity of heroin on the defendant’s person, at which time the trial judge overruled defense objections to the expert testimony. The trial judge was not required to make any specific ruling that the officer was an expert prior to ruling on the admissibility of the expert opinion testimony. Howard v. State, 177 Ga. App. 589, 590 ( 340 SE2d 212 ) (1986). Since the record otherwise establishes the officer’s expert qualifications, the trial judge’s overruling of defense objections to the expert opinion testimony was an implicit ruling that the court recognized the officer to be qualified as an expert. Stewart v. State, 246 Ga. 70, 75 ( 268 SE2d 906 ) (1980).

The defense objected to admission of the expert opinion on grounds that: (1) “[t]he officer is in no position to make a statement like that”; (2) “[it’s] not relevant,” and (3) “that’s up to the jury to decide.” The trial court properly exercised its discretion to determine that the officer was qualified as an expert, overruled the objection, and admitted the expert testimony. See Davis v. State, 200 Ga. App. 44, 45-46 ( 406 SE2d 555 ) (1991). On appeal, the defendant argues that the trial court erred by admitting this testimony on an ultimate issue in the case which invaded the province of the jury. “The issue is *577 not whether the opinion would invade the province of the jury, but whether the subject is a proper one for opinion testimony. Expert opinion testimony on issues to be decided by the jury, even the ultimate issue, is admissible where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion is beyond the ken of the layman.” (Citations and punctuation omitted.) Jefferson Pilot Life Ins. Co. v. Clark, 202 Ga. App. 385, 392 ( 414 SE2d 521 ) (1991). Moreover, when the expert opinion testimony was offered, it does not appear that any of the grounds for objection went to the qualifications of the officer as an expert, so that issue was waived on appeal. Horne v. State, 155 Ga. App. 851, 856 ( 273 SE2d 193 ) (1980).

Decided July 16, 1993.

David L. Whitman, for appellant.

Lewis R. Slaton, District Attorney, Anita Wallace, Nancy A. Grace, Assistant District Attorneys, for appellee.

There being no reversible error, the judgment of conviction should be affirmed.

Under most circumstances, the better practice would be to rule whether the witness is an expert only in response to a specific objection that the witness is not qualified to give the opinion sought in a specific question. Otherwise, generally labeling a witness as an “expert” may give improper credence to his testimony. All of this, however, lies in the sound discretion of the trial judge.