U.S. v. Ladd

• Decision Date: 03 August 1989
• Docket Number: No. 89-1120,89-1120
• Citation: 885 F.2d 954
• Parties: 28 Fed. R. Evid. Serv. 1223 UNITED STATES of America, Appellee, v. Gary LADD, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 954

885 F.2d 954

28 Fed. R. Evid. Serv. 1223

UNITED STATES of America, Appellee, v. Gary LADD, Defendant, Appellant.

No. 89-1120.

United States Court of Appeals, First Circuit.

Heard Aug. 3, 1989.

Decided Sept. 13, 1989.

Richard F. Johnston, Manchester, N.H., for appellant.

Robert E. McDaniel, Asst. U.S. Atty., Temple, N.H., with whom Peter E. Papps, Acting U.S. Atty., was on brief, for appellee.

Before CAMPBELL, Chief Judge, TORRUELLA and SELYA, Circuit Judges.

SELYA, Circuit Judge.

April Poulin, William Massey, and defendant-appellant Gary Ladd embarked on an evening's entertainment featuring drugs of various kinds. Though steeped in merriment, the evening ended in dead earnest: Massey perished. Ladd was later indicted for distribution of heroin on the night in question. 21 U.S.C. Sec. 841(a)(1). He was found guilty by a jury in the United States District Court for the District of New Hampshire and appeals his conviction. We affirm.

There are four assignments of error. We mimic the defendant and consider the grounds in the order they were briefed, discussing the facts only to the extent necessary to place Ladd's contentions into meaningful perspective.

A. Admission of Laboratory Reports

The parties stipulated that, following Massey's death, blood and urine samples were drawn from the corpse and delivered to a laboratory operated by the Massachusetts Department of Public Safety (State Lab). The stipulation ended at that point. The further course of the samples is shrouded in controversy.

The prosecution asserts that the samples were handled professionally at the State Lab; that scientific tests performed there indicated, inter alia, the presence of both cocaine and morphine-like substances; that a sample was then delivered to a private forensic laboratory (CSL) to conduct more sophisticated tests anent the presence of morphine ¹; and that, under the rigors of CSL's protocol, the sample tested positively for morphine. The prosecution offered into evidence both sets of test results: Exhibit 9 (the State Lab file) and Exhibit 7A (CSL's file). The district court admitted them over defendant's objection.

Ladd contends that the laboratory records should have been kept from the jury. He lands a series of hard blows related to (1) slipshod storage and handling of the samples at the State Lab, and (2) a discrepancy in the samples' identifying numbers. His knockout punch is that the chain of custody binding the samples was so seriously flawed as to leave no reliable foundation for admission of the test results. Appellant's argument has some merit, but in condemning the totality of the forensic evidence, he casts his net too wide; the State Lab results and the CSL results are birds of different feathers.

1. State Lab Results. "[A]s a condition precedent to admissibility," evidence must be authenticated by a showing "sufficient to support a finding that the matter in question is what its proponent claims." Fed.R.Evid. 901(a). The district court stands as a sentinel at the gates. If in the court's judgment it seems reasonably probable that the evidence is what it purports to be, the command of Rule 901(a) is satisfied, and the evidence's persuasive force is left to the jury. United States v. Williams, 809 F.2d 75, 89 (1st Cir.1986), cert. denied, 481 U.S. 1030, 107 S.Ct. 1959, 95 L.Ed.2d 531 (1987); United States v. Luna, 585 F.2d 1, 6 (1st Cir.), cert. denied, 439 U.S. 852, 99 S.Ct. 160, 58 L.Ed.2d 157 (1978). We review the court's threshold decision only for abuse of discretion. See United States v. Masse, 816 F.2d 805, 813 (1st Cir.1987); Williams, 809 F.2d at 89-90.

As to the reports from the State Lab, the facts brook little dispute. The only witness who testified concerning the procedures employed at the facility was John Sloane, a state chemist. Sloane testified that the laboratory's usual custom and praxis were followed. His testimony supported a finding that the samples of Massey's bodily fluids, once delivered, were stored in a loosely-tied bag in a refrigerator in the laboratory; that the bag (if not the individual jars) was numbered and labelled; that the samples were removed for internal testing and eventually replaced; that the laboratory's procedures were followed on these occasions; and that the tested samples comprised Massey's blood and urine, respectively. This evidence, we think, was sufficient to sanction admissibility of the State Lab's reports.

To be sure, defense counsel's attack on the laboratory's protocol, and on the storage and handling of the specimens, was robust. He showed that access was easy and cross-checking minimal. He probed skillfully at weaknesses in the safeguards employed, casting doubt on the samples' security and on the effectiveness of the state's preventatives. Fundamentally, however, this cross-examination went to the weight of the evidence, not to its admissibility. See Williams, 809 F.2d at 89-90.

In the last analysis, the prosecution's chain-of-custody evidence must be adequate--not infallible. Here, some links in the chain were rusty, but none were missing. Without question, the defense succeeded in showing a certain sloppiness, regrettable in a forensic laboratory. Yet the net effect of any such disarray on the authenticity of the evidence depended on what inferences a reasonable factfinder might choose to draw from it. Where, as in this case, a trier chooses among plausible (albeit competing) inferences, appellate courts should not intrude.

In fine, the trial judge acted within his discretion in finding it reasonably probable that the test results from the State Lab were what the prosecution claimed them to be. The evidence was, therefore, duly admitted.

2. CSL Results. The tests conducted by the private laboratory, CSL, do not fare nearly as well. When a blood sample is received by the State Lab, it is assigned an identification number. Massey's blood sample was numbered T87-1938-BBO. When the decision was made to forward the sanguineous specimen to CSL for more critical testing, a messenger called for it. According to CSL's records, the sample it received was numbered T87-1936-BBO. The last-digit discrepancy ("1938" versus "1936") was never explained. It was later struck over--the "6" altered to look like an "8"--but the record is silent as to when, where, how or why this emendation occurred. The record is likewise inscrutable as to the identity of the reviser.

Perhaps most puzzling, the prosecution made almost no effort to clear up the discrepancy. It chose not to present the testimony of the State Lab staffer who released the sample, the courier, or the CSL staffer who logged it in. Similarly, the prosecution offered no evidence to show whether the allegedly miswritten number (T87-1936-BBO) was assigned to some other specimen still in house, or to account for that designation. In short, there was no competent proof to indicate that the sample extracted from Massey's corpse was the one which CSL tested. An important step in the custodial pavane was omitted.

The conclusion is, we think, inescapable. As to CSL's findings, the linkage was not merely rusty--it had parted. Due to the missing link, the CSL test results should not have been admitted into evidence.

3. Harmless Error. Our determination that the court below erred in admitting CSL's findings into evidence does not end this phase of our inquiry. Where, as here, an error is not of constitutional magnitude, reversal is not obligatory unless the bevue "affect[s] substantial rights." Fed.R.Crim.P. 52(a). Put another way, a new trial is unnecessary if it can be said "with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error." Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946). As we have recently observed, "the Kotteakos 'fair assurance' standard is satisfied if it is 'highly probable' that the challenged action did not affect the judgment." United States v. Hernandez-Bermudez, 857 F.2d 50, 53 (1st Cir.1988) (citations omitted); see also United States v. Mazza, 792 F.2d 1210, 1216-17 (1st Cir.1986), cert. denied, 479 U.S. 1086, 107 S.Ct. 1290, 94 L.Ed.2d 147 (1987); United States v. Pisari, 636 F.2d 855, 859 (1st Cir.1981).

This is such a case. The disputed CSL report had significance in only a single material respect: as proof that the substance distributed by Ladd was heroin. Yet, that point was never really in doubt. Captain Brodeur of the Manchester police testified that Ladd confessed to providing heroin on the evening in question. An eye witness, Poulin, testified that the substance she obtained from Ladd that night was heroin. She also testified that Ladd "fronted" Massey two bags of heroin. Ladd's former roommate testified to an admission from which a similar inference could be drawn. See infra note 4. The report of the State Lab, properly admitted into evidence, indicated the probable presence of a morphine-like ingredient. ² And the government's expert witness, Jehru St. Valentine Brown, gave an opinion, based on circumstantial evidence (packaging, method of substance administration, and the like) and without any reliance on either set of laboratory tests, that the substance involved was heroin. The opposite pan of the scale was empty: all of the evidence was to the effect that appellant possessed heroin and Massey used it.

In light of the record as a whole, we believe it highly probable that the errant admission of the CSL report did not affect the judgment and, therefore, the mistake was harmless. This is especially so because the evidence had virtually no bearing on the defense's two main theories: (1) that Ladd merely shared drugs with Poulin and Massey recreationally as part of an all-night drug party, but did not "distribute" heroin to them; and (2) that Ladd's own drug usage that evening negated the existence of...