State Of Louisiana VS James Anthony Johnson, Jr.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2010 KA 0137 STATE OF LOUISIANA VERSUS JAMES ANTHONY JOHNSON JR Judgment rendered December 22 2010 Appealed from the 19th Judicial District Court in and for the Parish of East Baton Rouge Louisiana Trial Court No 01 070003 Honorable Donald Johnson Judge HON HILLAR C MOORE III ATTORNEYS FOR DISTRICT ATTORNEY STATE OF LOUISIANA WILLIAM MORRIS DYLAN C ALGE ASSISTANT DISTRICT ATTORNEYS BATON ROUGE LA STEVE LEBLANC ATTORNEY FOR BATON ROUGE LA DEFENDANT APPELLANT JAMES ANTHONY JOHNSON JR BEFORE KUHN PETTIGREW JJ AND KLINE J pro tempore 1 Judge William F Kline Jr retired is serving as judge pro tempore by special appointment of the Louisiana Supreme Court PETTIGREW J The defendant James Anthony Johnson Jr was charged by bill of information with possession of a firearm by a convicted felon a violation of La R 14 The S 95 1 defendant pled not guilty He waived his right to a jury trial and following a bench trial was adjudged guilty as charged The defendant was sentenced to ten years at hard labor without the benefit of probation parole or suspension of sentence The defendant now appeals designating two assignments of error We affirm the conviction and sentence FACTS At about midnight on September 9 2006 Joyce Mullins and the father of her baby Stephen Chrisentry were at a gathering in the parking lot of the apartments on Ann Marie Drive in Baton Rouge Louisiana to celebrate the defendant birthday s Sheila Hubbard lived in one of the apartments On occasion the defendant stayed with Hubbard All were drinking beer Chrisentry and the defendant had been friends for some time The defendant and Chrisentry became involved in horseplay roughhousing continued they became more physical with each other As the According to Mullins and Chrisentry who both testified at trial the defendant produced a gun from his person and shot Chrisentry in the abdomen defendant then left the scene Chrisentry was not armed The Chrisentry spent the next month in the hospital recovering from his wound Hubbard testified at trial that Chrisentry and Mullins drank a lot of alcohol at the s defendant parry Hubbard also indicated that Mullins was smoking marijuana Mullins testified that she and Chrisentry were not drinking prior to the shooting and she did not smoke marijuana that night Hubbard testified she did not witness the shooting because she was in her apartment at the time However when she went back outside following the shooting Mullins was about one hundred feet from the scene of the shooting Hubbard testified that she did not know who shot Chrisentry Defense witness Ricky Nelson testified at trial that he attended the party and that Chrisentry and Fil Mullins were drunk Nelson did not witness the shooting because he had gone to the store to get beer He testified he had not seen the defendant with a gun that night Deputy Willie Stewart with the East Baton Rouge Sheriffs Office testified that he responded to the shooting ground At the scene he found a 380 bullet casing on the The defendant was apprehended and arrested the following day Deputy Stewart Mirandized the defendant and asked him where the gun was that he used in the shooting The defendant responded that he threw the gun in the river Within about a minute the defendant changed his story and told Deputy Stewart that the gun was in a black bag which was in between a stack of his clothes on a chair in Hubbard s bedroom Deputy Stewart found the gun which was a 380 in the place described by the defendant Hubbard testified that the gun found in her room was not hers and that she did not know where it came from The defendant was subsequently taken to the Sheriffs Office where he provided a statement which was videotaped In his brief statement the defendant did not say that he shot Chrisentry He offered only that he and Chrisentry were engaged in horseplay and that it was an accident ASSIGNMENT OF ERROR NO 1 In his first assignment of error the defendant argues the trial court erred in allowing the introduction of fingerprint evidence without a Daubert hearing Specifically the defendant contends that fingerprint evidence by the State expert to s establish the defendant predicate conviction should have required a Daubert hearing s to determine the of the expert methodology reliability s Preliminary questions concerning the competency or qualification of a person to be a witness or the admissibility of evidence shall be determined by the court Evid art 104 La Code Although relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice confusion of the issues or misleading the jury La Code Evid art 403 The trial court is vested with wide discretion in determining the competence of an expert witness and its ruling on the qualification of t the witness will not be disturbed absent an abuse of discretion State v Trahan 576 2d So 1 8 La 1990 Louisiana Code of Evidence article 702 dictates the admissibility of expert testimony as follows If scientific technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue a witness qualified as an expert by knowledge skill experience training or education may testify thereto in the form of an opinion or otherwise Notably the supreme court has placed limitations on this codal provision in that expert testimony while not limited to matters of science art or skill cannot invade the field of common knowledge experience and education of men State v Stucke 419 So 939 945 La 1982 2d In State v Foret 628 So 1116 La 1993 the Louisiana Supreme Court 2d adopted the test set forth in Daubert v Merrell Dow Pharmaceuticals Inc 509 S U 579 113 S 2786 125 L 469 1993 regarding proper standards for the Ct 2d Ed admissibility of expert testimony that requires the trial court to act in a gatekeeping function to ensure that any and all scientific testimony or evidence admitted is not only relevant but reliable State v Chauvin 2002 1188 p 5 La 5 846 So 03 20 2d 697 700701 To assist the trial courts in their preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and can properly be applied to the facts at issue the Supreme Court suggested the following general observations are appropriate 1 whether the theory or technique can be and has been tested 2 whether the theory or technique has been subjected to peer review and publication 3 the known or potential rate of error and 4 whether the methodology is generally accepted by the relevant scientific community Daubert 509 S U at 592594 113 S at 27962797 Ct Thus Louisiana has adopted Daubert s requirement that in order for technical or scientific expert testimony to be admissible under Article 702 the scientific evidence must rise to a threshold level of reliability s Daubert general gatekeeping applies not only to testimony based upon scientific knowledge knowledge but also to testimony based on technical and other specialized Kumho Tire Co Ltd v Carmichael 526 U 137 141 119 S S Ct 4 1167 1171 143 L 238 1999 Independent Fire Ins Co v Sunbeam Corp 2d 6d 99 2181 p 13 La 2 755 So 226 234 The trial court may consider one or 00 29 2d more of the four Daubert factors but that list of factors neither necessarily nor exclusively applies to all experts or in every case Kumho Tire 526 U at 141 119 S Ct S at 1171 Rather the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determinations Kumho Tire 526 U at 142 119 S at 1171 The purpose of a S Ct Daubert hearing is to determine the reliability of an expert methodology not whether s the expert has the proper qualifications to testify See State v Vidrine 20081059 p 20 La App 3 Cir 4 9 So 1095 1107 writ denied 20091179 La 2 09 29 3d 10 26 28 So 268 3d Prior to opening statements at the bench trial in this case defense counsel moved for a Daubert hearing regarding the fingerprint evidence the State would introduce to establish the defendant predicate conviction s According to defense counsel despite his being aware that fingerprint analysis has been uniformly accepted for over seventy years since the State proof of the predicate conviction was an s essential element of the crime of possession of a firearm by a convicted felon and fingerprint analysis was a key to that burden of proof the defendant should be afforded a Daubert hearing In denying the motion the trial court stated in pertinent part Whether or not we are going to revisit fingerprint analysis the error rate in fingerprint analysis whether or not today technology is such s that that science could be no longer acceptable Even though there is sic some cracks that seemingly are on the at least from this court s surface of this science those cracks are not interpretation developed such to the extent that this type of analysis would be considered flawed or suspect or lacking weight and credibility The defense will have the right to examine fully the science through the testimony of the witness The application of the methods if the defense wish sic In other words the defense will have full right of cross examination which would include any questions the defense would want to ask involving issues of standards and lack of reliability and validity 6i So in essence I denying your motion I am allowing you to m question the witness regarding this issue during the trial At trial Kathy Williams a criminal records analyst with the Louisiana State Police Bureau of Criminal Identification and Information underwent a voir dire examination for her expertise in fingerprint analysis She testified that she analyzed fingerprints and had been with the State Police for fifteen years Her office used eight points of identification to determine if fingerprints match As a supervisor she had not analyzed as much as she used to but the entirety of her work for fifteen years involved comparing fingerprints or supervising others comparing fingerprints She further testified that she had been qualified as an expert about fifteen times she had never failed to qualify as an expert and the last time she had testified as an expert was the previous month Following cross examination on the voir dire defense counsel objected to Williams being qualified as an expert based on her lack of formal education and on the minimal time she devoted to fingerprint analysis The trial court overruled the objection and found Williams qualified to present expert testimony Williams then testified on direct examination that the fingerprints she had taken from the defendant that day matched the fingerprints on the defendant bill of s information charging him with aggravated flight from an officer match she counted ten points of identification In confirming the On cross examination using the Daubert factors as a guide defense counsel elicited from Williams that there were no uniform standards in fingerprint analysis that she did not know if there was a known error rate in fingerprint analysis that she did not know whether the technique she used had been accepted by the scientific community as valid and that she did not know if the technique she used had been subjected to peer review At the conclusion of s Williams testimony defense counsel reurged his motion for a Daubert hearing Defense counsel argued that he questioned Williams about the five factors in Daubert and she had not been able to give any information regarding the factors In again denying defense counsel motion for a Daubert hearing the trial court s stated 31 Often times the court is called upon to decide the Daubert issue The federal bench book discusses Daubert trilogy occasions sic and a s footnote in that bench book that a reference to an expert who is s qualified as a wine sampler There is no standard per se that a wine sampler uses other than his nasal and palet sic to assess quality wine However her testimony is utilized to price and to sample and determine a expertise of wine n Daubert allows such expertise even though it seemingly doesn t have all of the factors which it prescribes Daubert trilogy of cases suggests that in certain areas of subject matters that those standards if rigidly applied would never qualify anyone as an expert The objection is asserted I have weighed it All things considered I maintain the original disposition I overrule the objection We find no reason to disturb the trial court ruling There has been no showing s there was a need for a Daubert hearing regarding Williams expert testimony on s fingerprint identification and comparison Courts have long accepted expert testimony in the field of fingerprint analysis without a Daubert hearing As discussed in United States v John 597 F 263 5th Cir 2010 the Fifth Circuit found the district court did 3d not err in dispensing with a Daubert hearing regarding fingerprint analysis e W agree with a number of our sister circuits that have expressly held that in the context of fingerprint evidence a Daubert hearing is not always required As the Seventh Circuit has noted Those courts discussing the issue have not excluded fingerprint evidence instead they have declined to conduct a pretrial Daubert hearing on the admissibility of fingerprint evidence or have issued brief opinions asserting that the reliability of fingerprint comparison cannot be questioned Fingerprint identification has been admissible as reliable evidence in criminal trials in this country since at least 1911 In terms of specific Daubert factors the reliability of the technique has been tested in the adversarial system for over a century and has been routinely subject to peer review Moreover as a number of courts have noted the error rate is low John 597 F at 274275 footnotes omitted 3d The Daubert Court itself noted that well established propositions are less likely to be challenged than those that are novel and theories that are so firmly established as to have attained the status of scientific law properly are subject to judicial notice Daubert 509 U at 592 n 113 S at 2796 n While the principles underlying S 11 Ct 11 fingerprint identification have not attained the status of scientific law they nonetheless bear the imprimatur of a strong general acceptance not only in the expert community 7 but in the courts as well United States v Crisp 324 F 261 268 4th Cir 2003 3d cert denied 540 U 888 124 S 220 157 L 2d 159 2003 In United States S Ct Ed v Mitchell 365 F 215 246 3d Cir 2004 cert denied 543 U 974 125 S 3d S Ct 446 160 L 348 2004 the Third Circuit found that a district court would not 2d Ed abuse its discretion in dispensing with a Daubert hearing altogether if no novel challenge was raised to the admissibility of latent fingerprint identification evidence The court in Crisp noted that under Daubert a trial judge need not expend scarce judicial resources reexamining a familiar form of expertise every time opinion evidence is offered Crisp 324 F at 268 See United States v Sherwood 98 F 402 3d 3d 408 9th Cir 1996 2000 See also United States v Cooper 91 F 79 82 D 2d Supp C Although the Court must ensure that expert testimony is reliable and admissible there is nothing in Kumho Tire or Daubert that requires the Court to conduct a pretrial evidentiary hearing if the expert testimony is based on well established principles In Kumho Tire the court opined The trial court must have the same kind of latitude in deciding how to test an expert reliability and to decide whether or when special s briefing or other proceedings are needed to investigate reliability as it enjoys when it decides whether or not that expert relevant testimony is s reliable That standard applies as much to the trial court decisions s about how to determine reliability as to its ultimate conclusion Otherwise the trial judge would lack the discretionary authority needed both to avoid unnecessary reliability proceedings in ordinary cases where the reliability of an expert methods is properly taken for granted s and to require appropriate proceedings in the less usual or more complex cases where cause for questioning the expert reliability arises s Kumho Tire 526 U at 152 119 S at 1176 S Ct Given the firmly established reliability of fingerprint evidence defense counsel full right to cross examine the s expert witness and the expert witness comparison of the defendant fingerprints not s s with latent prints but with known fingerprints the trial court did not err in denying the motion for a Daubert hearing Wholly unnecessary a Daubert hearing under these circumstances would have served only to squander judicial resources and cause needless delay This assignment of error is without merit 8 ASSIGNMENT OF ERROR NO 2 In his second assignment of error the defendant argues that the evidence was insufficient to support the guilty verdict Specifically the defendant contends that only one unreliable witness Joyce Mullins testified the defendant was in possession of a firearm A conviction based on insufficient evidence cannot stand as it violates Due Process See U Const amend XIV La Const art I S 2 The standard of review for the sufficiency of the evidence to uphold a conviction is whether viewing the evidence in the light most favorable to the prosecution any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt Jackson v Virginia 443 U 307 319 99 S 2781 2789 61 L 560 1979 S Ct 2d Ed See also La Code Crim P art 821 State v Ordodi 20060207 p 10 La 11 946 So 6 06 29 2d 654 660 State v Mussall 523 So 1305 1308 1309 La 1988 The Jackson 2d standard of review incorporated in Article 821 is an objective standard for testing the overall evidence both direct and circumstantial for reasonable doubt When analyzing circumstantial evidence La R 15 provides that the fact finder must be satisfied S 438 the overall evidence excludes every reasonable hypothesis of innocence See State v Patorno 2001 2585 pp 45 La App 1 Cir 6 822 So 141 144 02 21 2d The defendant asserts that when Chrisentry was shot the only witness to testify the defendant had a firearm in his possession was Mullins who was a convicted felon Defense witnesses Nelson and Hubbard testified that Mullins was intoxicated from alcohol and marijuana Also Nelson testified that he did not see the defendant in possession of a firearm that night Due to the conflicting testimony the defendant maintains the evidence was insufficient to support the conviction The testimony at trial established that Chrisentry was shot in the abdomen The 380 casing found on the ground near the shooting was consistent with the 380 handgun found in Hubbard apartment s eight live rounds in it According to Deputy Stewart the gun was found with The numbers and letters on the 380 live rounds and the manufacturer of the live rounds matched those of the 380 bullet casing found by Deputy 0 Stewart at the scene When Deputy Stewart asked the defendant about the location of the gun he used in the shooting the defendant told him the gun was in Hubbard s apartment in her room with his clothes Deputy Stewart found the gun precisely in the location described by the defendant Mullins testified that after the defendant and Chrisentry exchanged words the defendant retrieved a gun from under his shirt and shot Chrisentry Mullins testified she had no doubt the defendant had a gun Chrisentry testified that he and the defendant were wrestling in a playful way The horseplay then got out of control and the defendant repeatedly bumped into Chrisentry When Chrisentry pushed the defendant off of him the defendant pulled a gun and fired two times hitting Chrisentry once in the stomach Hubbard testified that when Mullins arrived at the party she had been drinking and smoking blunts marijuana According to Hubbard Mullins knew that Hubbard did not like marijuana around her so Mullins walked away toward a neighbor residence s Hubbard testified that she did not see the shooting because she was upstairs in her apartment using the bathroom Hubbard further testified that when she had come back outside after the shooting Mullins was standing about one hundred feet away from where the shooting occurred Also it was dark and the parking lot had poor lighting Nelson testified that when Chrisentry and Mullins came to the party they were drunk Nelson did not witness the shooting because he had left to get beer He stated he did not see the defendant in possession of a gun that night The trial court heard all of the testimony and viewed all of the evidence presented to it at trial and notwithstanding any alleged inconsistencies the trial court found the defendant guilty It is clear in its finding of guilt that the trial court discounted the testimony of Nelson and Hubbard who suggested either that the defendant did not possess a gun or that Mullins was too far away to witness the shooting The trial court clearly found the testimony of Chrisentry Mullins and Deputy Stewart credible and reliable enough to establish the defendant guilt s Where there is conflicting testimony about factual matters the resolution of which depends upon a determination of the credibility of the witnesses the matter is one of the 10 weight of the evidence not its sufficiency Accordingly our role is not to assess credibility or reweigh evidence In the absence of internal contradiction or irreconcilable conflict with physical evidence one witness testimony if believed by the trier of fact is s sufficient support for a requisite factual conclusion State v Thomas 2005 2210 pp 7 8 La App 1 Cir 6 938 So 168 174 writ denied 20062403 La 4 955 06 9 2d 07 27 I An appellate court is constitutionally precluded from acting as a thirteenth juror in assessing what weight to give evidence in criminal cases that determination rests solely on the sound discretion of the trier of fact Thomas 20052210 at 8 938 So at 2d 175 The trier of fact is free to accept or reject in whole or in part the testimony of any witness State v Ducksworth 496 So 624 634 La App 1 Cir 1986 The fact 2d that the record contains evidence that conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient Thomas 20052210 at 8 938 So at 175 See State v Quinn 479 So 592 596 La App 1 2d 2d Cir 1985 After a thorough review of the record we find that the evidence supports the trial s court finding of guilt We are convinced that viewing the evidence in the light most favorable to the State any rational trier of fact could have found beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence that the defendant was in possession of a firearm This assignment of error is without merit SENTENCING ERROR Under La Code Crim P art 920 we are limited in our review to errors 2 discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence See State v Price 2005 2514 p 18 La App 1 Cir 12 952 06 28 2d So 112 123 en Banc writ denied 2007 0130 La 2 976 So 1277 After a 08 22 2d careful review of the record we have found a sentencing error For his possession of a firearm by a convicted felon conviction the defendant was sentenced to ten years at hard labor without the benefit of probation parole or suspension of sentence Whoever is found guilty of violating the possession of a firearm 11 by a convicted felon provision shall be imprisoned at hard labor for not less than ten nor more than fifteen years without the benefit of probation parole or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars La R 14 S 95 6 1 The trial court failed to impose the mandatory fine Accordingly the defendant sentence which did not include the mandatory fine is s illegally lenient However since the sentence is not inherently prejudicial to the defendant and neither the State nor the defendant has raised this sentencing issue on appeal we decline to correct this error See Price 2005 2514 at 21 22 952 So at 2d 12425 CONVICTION AND SENTENCE AFFIRMED The minutes also reflect that no fine was imposed 12
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