Reardon v. Manson

• Citation: 491 F. Supp. 982
• Decision Date: 28 April 1980
• Docket Number: Civ. No. H-77-240,H-77-497.
• Parties: James REARDON v. John MANSON. Perry HAWKINS v. Richard M. STEINERT.
• Court: U.S. District Court — District of Connecticut

491 F. Supp. 982

James REARDON v. John MANSON.

Perry HAWKINS v. Richard M. STEINERT.

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

United States District Court, D. Connecticut.

April 28, 1980.

David S. Golub, Stamford, Conn., for plaintiff.

Richard F. Jacobson, Bridgeport, Conn., Robert E. Beach, Jr., Asst. State's Attys., Wallingford, Conn., for defendant.

RULING ON PETITIONERS' APPLICATIONS FOR WRITS OF HABEAS CORPUS

BLUMENFELD, Senior District Judge.

Petitioners James Reardon and Perry Hawkins seek habeas corpus relief from Connecticut state court convictions for drug offenses. Their petitions are predicated on the fact that the State, over objection, was allowed to use hearsay testimony to prove an essential element of the offenses charged and on the theory that the petitioners were therefore denied their right to confront their accusers as guaranteed by the sixth amendment.¹

I. The Facts

Petitioners Reardon and Hawkins were charged with violating Connecticut state drug laws in separate and unrelated informations. Reardon was charged with possession of marijuana and Hawkins was charged with selling cocaine. Under Connecticut law, as an element of each of these offenses, the State was obligated to establish the illegal narcotic nature of the substances. At both trials the State sought to carry its burden on this element of the offense by introducing the testimony of Dr. Charles Reading, one of three toxicologists employed by the State Department of Health.

Dr. Reading, who has a doctorate degree in forensic medicine, testified that in his expert opinion the substances seized from Reardon and Hawkins were marijuana and cocaine, respectively. On direct and cross-examination he conceded that his testimony was based entirely on his observations of the results of tests which were conducted out of his immediate presence by laboratory chemists under his supervision and on oral or hand-written reports from these chemists.

As his trial testimony indicates, Dr. Reading, along with two other toxicologists, supervised the work of 24 laboratory chemists.² Two of these chemists, Ms. Pernitis and Ms. Quintana, actually performed the tests on the substances taken from the petitioners. Reading's supervision of these chemists involved no more than directing the chemists to perform certain tests, reviewing their reports, and discussing their analyses with them. Dr. Reading admitted that he played no part in the actual performance of the tests nor did he observe the chemists performing each step of the testing process. He was simply present in the laboratory at the same time that the chemists were. The tests on petitioners' substances were just a few among the 15,000 other tests each year which Dr. Reading claims to "supervise." As counsel for petitioner points out, this suggests that Dr. Reading "supervises" over 50 tests every day.

The nature of the tests required that the chemists, Ms. Pernitis and Ms. Quintana, mechanically record data in some cases and make subjective analyses in others. Thus, for example, thin layer chromatography was used to test both substances. In performing this test the chemists prepared a slide with an extract of a known standard and another slide with the substance to be tested. The slides were then placed in a solvent solution, removed and sprayed with a particular chemical spray. This process yielded distinct dots of various colors at different locations on the slide. By comparing the dots appearing on the slide containing the known substance with those on the slide containing the unknown, the chemists were able to determine if the unknown contained chemicals similar to those known to be in the standard. With respect to this test, the chemists mechanically performed the operations and brought the slides to Dr. Reading. Dr. Reading, by examining the slides, was able to confirm independently the chemists' conclusions as to the presence of the suspected drug.

By contrast, the microscopic test for marijuana required that the chemist alone draw the ultimate conclusion. After preparing a slide with an unknown substance, the chemist examined the material with a microscope, looking for characteristics of marijuana. The chemist herself determined whether or not the material resembled marijuana and reported only her conclusions to Dr. Reading. As Dr. Reading conceded, Ms. Pernitis actually performed the microscopic evaluation of Reardon's substance, and she merely told Dr. Reading that the results were positive. He never personally examined the substance under the microscope.

Thus, with some tests the results were simply reported as positive, indicating the presence of narcotics. With others, the actual chemical results were shown to Dr. Reading to corroborate the chemist's own conclusions. In both trials Dr. Reading testified that he relied on all of the tests in reaching his own opinion.³

At the trials, over strenuous objections, Dr. Reading was allowed to testify as to the narcotic nature of the substances in question. The chemists who performed the underlying tests were never called as witnesses, and the prosecution offered no explanations for their absence. As both counsel stipulated at the hearing on these applications, Dr. Reading's testimony was the only proof on which the State relied to establish the narcotic nature of the substances.

After trial, both petitioners were convicted and appealed their convictions in the state courts. Both exhausted their state remedies by raising the constitutional confrontation claim before the Connecticut Supreme Court. Their appeals were denied,⁴ and each has now filed for a writ of habeas corpus, raising the same confrontation claims in this court.

II. The Legal Issue

The sixth amendment right of confrontation, applicable to the states through the fourteenth amendment, Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), has repeatedly been referred to as an "essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal." Id. at 405, 85 S.Ct. at 1068; Barber v. Page, 390 U.S. 719, 721, 88 S.Ct. 1318, 1320, 20 L.Ed.2d 255 (1968). "The primary object of the confrontation clause is to prevent depositions or ex parte affidavits . . . from being used against the prisoner in lieu of a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief." Mattox v. United States, 156 U.S. 237, 242-43, 15 S.Ct. 337, 339, 39 L.Ed. 409 (1895).

The sixth amendment promises the accused the right to confront the "witnesses against him." "It is clear that in the context of the confrontation clause, the `witness against' the accused is the extra-judicial declarant, and not the live witness who merely narrates the hearsay at trial." United States v. Oates, 560 F.2d 45, 80 n.34 (2d Cir. 1977).

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.

It is beyond dispute that the chemist's extra-judicial testimony constituted a central link in the prosecution of these petitioners. Petitioners' ability to cross-examine and confront Dr. Reading obviously does not satisfy their desire to confront the extra-judicial witnesses against them. Thus, it is clear that Dr. Reading's testimony was hearsay, and the only question is whether its admission offended the confrontation clause of the sixth amendment.⁵

Of course, not every extra-judicial declaration admitted at trial violates the sixth amendment. E. g., Parker v. Randolph, 442 U.S. 62, 73, 99 S.Ct. 2132, 2139, 60 L.Ed.2d 713 (1979); Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970); United States v. Puco, 476 F.2d 1099, 1104-05 (2d Cir.), cert. denied, 414 U.S. 844, 94 S.Ct. 106, 38 L.Ed.2d 82 (1973). Nor, on the other hand, is a particular declaration sanitized from constitutional violations simply because it is admissible under a hearsay exception in the State's rules of evidence.⁶ Dutton v. Evans, supra, 400 U.S. at 81-82, 91 S.Ct. at 215-16 (opinion of Stewart, J.); California v. Green, 399 U.S. 149, 155-56, 90 S.Ct. 1930, 1933-34, 26 L.Ed.2d 489 (1970); United States v. Oates, supra, at 81; United States v. Puco, supra at 1102. Rather the court must determine, on a case-by-case basis, whether each extra-judicial statement is sufficiently trustworthy to be admitted into evidence. United States v. Puco, supra, at 1105.

In the Second Circuit, claims under the confrontation clause are tested against three standards. First: is the hearsay testimony "crucial" to the prosecution's case or does it have a "devastating" effect on the defense? Second: if so, has the prosecution carried its burden of establishing that the extra-judicial declarant is in fact not available? Finally: does the testimony bear other "indicia of reliability"? Rado v. State of Connecticut, 607 F.2d 572, 581...