Last month, a state appellate court issued a written opinion in a California drug-dealing case in which the defendant claimed that the testimony of the prosecution’s expert witness was impermissibly based on the defendant’s race and national origin. Ultimately, the court concluded that, regardless of the impropriety of the expert’s testimony, the defendant failed to preserve the issue for appeal because there was no objection made at the time the expert testified.
According to the court’s opinion, the defendant was arrested after an officer observed the defendant hand a middle-aged Cuban man an unknown object. Officers were able to see that the object the defendant handed the man contained off-white solids that resembled cocaine base.
The officers arrested the defendant, and after searching him, found a baggie with 41 small, individually wrapped “bindles” containing what was later determined to be crack cocaine. The defendant did not have any money on him when he was arrested.
The prosecution presented an experienced narcotics officer as an expert witness. The expert explained that the area where the defendant was arrested was known for the sale of crack cocaine, and that the area was controlled by Cubans. The prosecution asked the expert witness the following hypothetical question, which mirrored the facts of the case:
Assume that a male individual is seen on 5th Street by the intersection of San Pedro which is a known high narcotics area that traffics in the sale of crack cocaine, cocaine base, that individual is seen on 5th Street receiving a bindle containing 41 individually wrapped baggies of cocaine base and the approximate weight, total weight, of those 41 bindles is approximately 16 gross grams. Do you have an opinion as to why that individual possessed the 41 bindles of rock cocaine?
The expert answered that, in his expert opinion, such a person possessed the drugs with the intent to sell them. While the defendant used a Spanish interpreter at trial, there was no evidence that he was of Cuban descent. The jury found the defendant guilty, and the defendant appealed.
On appeal, the court did not get into the question of whether the expert’s testimony impermissibly considered the defendant’s race and/or national origin, finding that the defendant did not object to the expert’s testimony at the time it was given. The court explained that appellate courts are only able to review issues that are properly preserved at trial, and, by failing to object, the defendant did not preserve the issue.
The court rejected the defendant’s argument that his counsel’s objection to the expert’s qualifications as an expert preserved the claim. The court explained that the objection to the expert’s level of expertise was not specific to the issue complained of on appeal.
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