In the Office of the District Attorney of the County of Los Angeles, in the preliminary hearings unit, most of the preliminary hearings that will be assigned to certified law clerks will be drug cases, dealing with possession, possession for sale, and transportation. An important element of such charges is the identification of the drugs.
Most times, with experienced public defenders and private defense attorneys, there will be a stipulation as to lab receipts which identify evidence as drugs. However, there has been a trend for "baby PDs" not to stipulate to anything. In such situations, a testifying police officer may nevertheless be qualified as to his "scientific" qualifications for identifying the narcotics. The elements required for establishing such expertise is generally laid out in People v. Wesley, 224 Cal. App. 3d 1130, 1146 (Cal. Ct. App. 1990):
Officer Qualls was properly qualified as an expert in the field of narcotics, specifically cocaine; thereafter, when he testified that he examined the "item" given to him by Sergeant Kirkpatrick (subsequently, the identity of the rock was traced in Qualls's testimony from Kirkpatrick to him, to defendant, to Carter, to Alaniz, then to exhibit 1) and, based upon his training and experience, it was his opinion it was rock cocaine, the objection imposed was not that Qualls was not qualified to give an expert opinion but that there was "insufficient foundation for a scientific conclusion," which was overruled. Later the rock of cocaine was received in evidence without objection. On his motion to dismiss before the magistrate, defense counsel argued only that Qualls was never asked "the identity of the rock before the court so there is no indication of that rock's even suspected nature." Of course, he was in error and the magistrate had the record read. But the nature of the substance was neither argued nor mentioned by defense counsel on his motion to set aside information. Nevertheless, Judge Alston commented he did not think the rock was analyzed, and found "There is no competent testimony here as to what the substance was that is involved." Belatedly, respondent here argues that Qualls's expert testimony that the "item" was rock cocaine is not sufficient without chemical analysis testimony. The magistrate was satisfied with the expertise and the opinion of Officer Qualls, and for the purpose of holding defendant to answer, we are satisfied the evidence is sufficient.
For purposes of preliminary hearings, the typical prosecution script runs like this:
- Officer, how many times have you testified in Superior Court as to
? - How many times have you made arrests or been involved in a
investigation? - Of that number, how many times have you booked evidence or been present for booking?
- Did you have an opportunity to see lab results after booking?
- What percentage of times has the lab receipt corroborated your initial belief?
- What did you believe the evidenced booked under
as item number - to be?
Defense intransigence isn't always the reason to go through Wesley qualification, however. Sometimes, the lab does not test all of the evidence. Thus, even if the defense attorney is willing to stipulate to the lab receipts, you still cannot account for all of the evidence recovered. In such a case, too, it is better to go through Wesley qualification.
The Stud had a chance to do this for what turned out to be his final preliminary hearing as a volunteer at the DA's office. (The Stud wrapped up on volunteering last Friday.) The PD was a friend from Loyola, so he was willing to stipulate; however, one of the items was not in fact analyzed in a lab, so the Stud qualified the testifying officer under Wesley, and got the testimony in.
In fact, the court was quite busy that day, so the judge had been rather short with the attorneys. However, when the end of the day came, the judge did bid the Stud farewell with praise: "Good job on the prelim today." Thank you, Your Honor!
Track record: 5-0.
