Reardon v. Manson

• Decision Date: 18 September 1985
• Docket Number: H-77-497.,Civ. No. H-77-240
• Citation: 617 F. Supp. 932
• Parties: James REARDON v. John R. MANSON. and Perry HAWKINS v. Richard M. STEINERT.
• Court: U.S. District Court — District of Connecticut

617 F. Supp. 932

James REARDON v. John R. MANSON. and Perry HAWKINS v. Richard M. STEINERT.

Civ. Nos. H-77-240, H-77-497.

United States District Court, D. Connecticut.

September 18, 1985.

David Golub, Silver, Golub & Sandak, Stamford, Conn., for plaintiff.

Richard F. Jacobson, Frederick W. Fawcett, Asst. Attys. Gen., Bridgeport, Conn., for defendant.

RULING ON APPLICATION FOR HABEAS CORPUS

BLUMENFELD, Senior District Judge.

These applications for writs of habeas corpus are before the court on remand from the Court of Appeals for the Second Circuit. Reardon v. Manson, 644 F.2d 122 (1981). Familiarity with the Court of Appeals' opinion, with the previous opinion of this court, Reardon v. Manson, 491 F.Supp. 982 (1980), and with the opinions of the Connecticut Supreme Court, State v. Reardon, 172 Conn. 593, 376 A.2d 65 (1977); State v. Hawkins, 173 Conn. 431, 378 A.2d 534 (1977), is assumed. The issue presented by these applications is whether petitioners' constitutional right to confront and cross-examine adverse witnesses, guaranteed by the sixth and fourteenth amendments to the Constitution, was violated by the admission at their trials on drug charges of certain testimony by a state toxicologist, one Dr. Charles Reading.

Prior Proceedings

Petitioners were each convicted in state court of drug offenses, Reardon's involving marijuana, and Hawkins' involving cocaine. The convictions were affirmed by the Connecticut Supreme Court. In each case, Dr. Reading testified, over defendant's objection on the ground that the testimony was hearsay, as to the nature of substances seized from the defendant and tested in the state toxicological laboratory. In State v. Reardon, the Connecticut Supreme Court upheld Reardon's conviction, declaring:

The jury's consideration of Dr. Reading's testimony, which we have held was admissible and which bore strong indicia of reliability, and upon which the defendant had a full and fair opportunity to cross-examine, did not deprive the defendant of the right of confrontation guaranteed by our state or federal constitutions.

172 Conn. at 599-600, 376 A.2d 65. Hawkins' conviction was affirmed in reliance on Reardon. 173 Conn. at 438, 378 A.2d 534.

On petitioners' applications for writs of habeas corpus, this court held, after a hearing, that petitioners' sixth amendment rights had been violated by the admission of Dr. Reading's testimony. Dr. Reading testified that in reaching his opinion as to the nature of the tested substances, he relied on tests performed by chemists under his supervision. I first determined that Dr. Reading's testimony was hearsay.

The testimony of Dr. Reading, in effect, merely repeated the information given him by his chemists. As to some of the tests, he simply reiterated the chemists' analysis with no first-hand knowledge of the test results. By passing along a chemist's assurance that a particular test yielded a positive result, Dr. Reading was only narrating hearsay. As to other tests where he himself observed the results of the experiments, he still was required to assume that the substances tested were in fact the substances in question, that the tests had been performed correctly, and that the appropriate standards had been used. When he examined the slides created by his chemists and then based his conclusion on the slides, he nonetheless still passed along the chemist's hearsay declaration that the tests were in fact properly conducted on the appropriate substances. As to these facts Dr. Reading had no independent knowledge.

491 F.Supp. at 985. Next, I held that Dr. Reading's testimony was crucial to the state's case (the parties having stipulated that Dr. Reading's testimony was the only evidence as to the nature of the substances), that the prosecution had not demonstrated the unavailability of the hearsay declarants, and that the other indicia of reliability necessary to satisfy the Confrontation Clause were not present. 491 F.Supp. at 986-88. See, e.g., United States v. Oates, 560 F.2d 45, 81 (2d Cir.1977). I therefore ordered that the writ issue unless petitioners were granted new trials within 60 days.

While the state's appeal from this court's decision was pending, the Supreme Court decided Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). In that case, it was held that a habeas court should include in its decision the reasoning which led it to decline to defer to the state court's factfinding. The Court referred specifically to 28 U.S.C. § 2254(d), which is set forth in the margin.¹ After Sumner, it is clear that a federal district court granting a habeas application must explain which of the eight factors listed in section 2254(d) justifies its lack of deference to the state court's factual determinations.

The Court of Appeals, in its decision remanding these petitions, noted that this court's ruling did not comply with Sumner's requirement. The Court of Appeals found that this court's factual determinations conflicted with those of the Connecticut Supreme Court in several respects.

Judge Blumenfeld treated the chemists as extrajudicial declarants. The Supreme Court of Connecticut regarded them to be collectors of trustworthy scientific data who performed testing procedures in keeping with their prescribed duties. The Connecticut court found the scientific facts gathered by the chemists under the direction and supervision of the expert toxicologist were reliable and trustworthy. The district court found that no indicia of reliability could be assigned to the extra-judicial declarations of the claimants who performed the tests. The state court found the results of the thin layer chromatography and chemical tests were personally observed by Dr. Reading. The district court found that Dr. Reading's opinion, based on these results, was founded on assumptions that were unsupported in the evidence. The state court determined there was reasonable necessity for Dr. Reading's reliance on the findings of the chemist Pernitis. The federal court was persuaded that the witnesses were deliberately by-passed by the State to advance the interests of the prosecution.

644 F.2d at 127-28.

In the interim since the decision of the Court of Appeals, petitioners and the state have submitted new memoranda, and the court has carefully considered whether the Connecticut Supreme Court's factual determinations were "fairly supported by the record." 28 U.S.C. § 2254(d)(8). The court will first consider this issue, then turn to the constitutional question raised by petitioners.

Factfinding in the State Court

According to the Court of Appeals, this court "treated the chemists as extra-judicial declarants," while "the Supreme Court of Connecticut regarded them to be collectors of trustworthy scientific data who performed testing procedures in keeping with their prescribed duties." 644 F.2d at 127-28. A close reading of the Connecticut Supreme Court's opinion in Reardon, however, reveals that although that court considered Dr. Reading's testimony admissible, it recognized that the chemist was an extra-judicial declarant. The Connecticut Court held that Dr. Reading's testimony was admissible as expert testimony, although his opinion was based in part on information given him by the chemist, whom the court also considered to be an expert. The Connecticut Court concluded its discussion of the admissibility of Dr. Reading's testimony by stating:

It has been held that there is no rule that facts proven under exceptions to the hearsay rule, though received in evidence, must be denied all evidentiary value where there is a reasonable necessity for such an exception, and where it is supported by an adequate basis for assurance that that evidence has those qualities of reliability and trustworthiness attributed to other evidence admissible under long-established exceptions to the hearsay rule without violating constitutional rights. Kay v. United States, 255 F.2d 476, 480-81 (4th Cir. 1958).

172 Conn. at 598, 376 A.2d 65 (emphasis added).

The Connecticut Supreme Court evidently recognized that Dr. Reading's narration of the results of tests performed by another was admissible, if at all, only under an exception to the hearsay rule; and that Dr. Reading's expert opinion, to the extent it was based on information obtained from others, likewise could come in only under such an exception. The Connecticut Court thus recognized the chemists as extra-judicial declarants, a factual determination in which this court concurs.²

The second point of disagreement identified by the Court of Appeals concerns the reliability and trustworthiness of the extra-judicial declarations of the chemists. It is difficult to extract from the state court's opinion the grounds for its finding that the statements of the chemist in Reardon bore "strong indicia of reliability." It appears, however, that the state court determined that the chemist was an "expert," 172 Conn. at 597, 376 A.2d 65, that the tests were "routine," id. at 598, 376 A.2d 65, and that Dr. Reading personally supervised the tests. Id.

The record is absolutely devoid of any evidence as to the qualifications of the chemists who actually performed the tests in either petitioner's case. Moreover, although similar tests were frequently performed in the state toxicological laboratory, Dr. Reading's detailed testimony concerning the testing procedures makes it clear beyond cavil that the tests themselves were anything but "routine." They were complicated tests requiring a high degree of skill and the use of sophisticated equipment, and the interpretation of the tests' results required specialized knowledge and experience. Cf. United States v. McClintock, 748 F.2d 1278, 1292 (9th Cir.1984). Finally, Dr. Reading's testimony also establishes rather conclusively that he did not "supervise" the testing in any meaningful sense. He was present in the laboratory, but was attending to other work. He did not observe the...