State ex rel. Huser v. Rasmussen

• Citation: 84 Wis.2d 600,267 N.W.2d 285
• Decision Date: 02 October 1978
• Docket Number: No. 76-759,76-759
• Parties: STATE of Wisconsin ex rel. Joseph J. HUSER, Petitioner-Appellant, v. Herman RASMUSSEN, Sheriff of Green Lake County, Respondent.
• Court: United States State Supreme Court of Wisconsin

Page 285

267 N.W.2d 285

84 Wis.2d 600

STATE of Wisconsin ex rel. Joseph J. HUSER, Petitioner-Appellant, v. Herman RASMUSSEN, Sheriff of Green Lake County, Respondent.

No. 76-759.

Supreme Court of Wisconsin.

Submitted on Briefs May 3, 1978.

Decided June 30, 1978.

Rehearing Denied Oct. 2, 1978.

See 270 N.W.2d 62.

This is an appeal from an order dismissing a petition for habeas corpus. The petitioner-appellant, Joseph J. Huser, contends that he was improperly bound over for trial on charges of delivering a controlled substance, cocaine.

Vaughn S. Conway, Baraboo, on brief, for petitioner appellant.

Bronson C. La Follette, Atty. Gen., and James H. Petersen, Asst. Atty. Gen., on brief, for respondent.

CONNOR T. HANSEN, Justice.

The petitioner-appellant, Joseph J. Huser (hereinafter defendant), was charged in a criminal complaint with five counts, later reduced to four counts, of delivering a controlled substance, cocaine, in violation of secs. 161.41(1)(b) and 161.16(4), Stats. A preliminary examination was held in the county court of Green Lake county, David C. Willis, County Judge, presiding; and the defendant was bound over for trial.

The defendant petitioned the circuit court for Green Lake county for a writ of habeas corpus, arguing (1) that insufficient evidence was adduced at the preliminary examination to establish probable cause, (2) that the trial court had improperly restricted cross-examination of a state witness, and (3) that the state had destroyed evidence in the case, thereby prejudicing the defendant. After holding an evidentiary hearing, the circuit court dismissed the petition for habeas corpus relief, and the defendant appeals. The circuit court has stayed the criminal prosecution pending disposition of this appeal.

At the preliminary examination, three chemists employed at the Wisconsin state crime laboratory testified regarding the chemical nature of the substances allegedly delivered in various transactions; each stated that in his opinion, to a reasonable degree of scientific certainty, the substance tested was cocaine. The chemists testified that there exist forms of cocaine known as d-cocaine and l-cocaine; that these forms may be distinguished by certain chemical tests; and that the tests actually performed on the substances delivered were incapable of distinguishing d-cocaine from l-cocaine. The chemists testified that d-cocaine is a synthetic substance, not derived from coca leaves and not a salt, compound, derivative or preparation of coca leaves and further testified that d-cocaine and l-cocaine react differently with certain reagents.

A fourth witness, Charles Collar, an undercover agent and deputy sheriff for Green Lake County, testified that he had purchased from the defendant substances which the defendant described as cocaine. Collar testified that on five occasions over a six-month period in 1976, he asked the defendant whether he could obtain various amounts of cocaine, ranging from one gram to one-quarter of an ounce. Huser said he could, and he provided Collar with the requested quantities of a white powder, for which Collar paid a total of more than nine hundred dollars.

Additional facts will be set forth in discussion of the following issues:

1. Was the testimony of the state's chemists insufficient to establish probable cause to believe the defendant had committed a felony?

2. Did the trial court improperly limit the defendant's right of cross-examination?

3. Was the defendant prejudiced by the destruction of evidence?

4. Was the defendant prejudiced by an ex parte communication between the trial judge and a state witness?

5. Did the circuit court err in considering matters outside the record of the preliminary hearing?

A defendant may be bound over for trial if the evidence adduced at a preliminary examination establishes to a reasonable probability that a crime has been committed and that the defendant probably committed it. State v. Berby, 81 Wis.2d 677, 683, 260 N.W.2d 798 (1978); Vigil v. State, 76 Wis.2d 133, 141, 250 N.W.2d 378 (1977); see : sec. 970.03, Stats. A preliminary hearing is not an evidentiary trial, and guilt need not be established beyond a reasonable doubt. Organ v. State, 65 Wis.2d 36, 221 N.W.2d 823 (1974); Taylor v. State, 55 Wis.2d 168, 172, 173, 197 N.W.2d 805 (1972). Rather, at a preliminary hearing, a court is concerned with the practical and nontechnical probabilities of everyday life in determining whether there is a substantial basis for bringing the prosecution and further denying the accused his right to liberty. Taylor v. State, supra, at 173, 197 N.W.2d 805.

On review of a trial court's finding as to probable cause at a preliminary hearing:

" '. . . The reviewing court can examine the evidence only sufficiently to discover whether there was any substantial ground for the exercise of judgment by the committing magistrate. When the reviewing court has discovered that there is competent evidence for the judicial mind of the examining magistrate to act on in determining the existence of the essential facts, it has reached the limit of its jurisdiction and cannot go beyond that and weigh the evidence.' ", State ex rel. Hussong v. Froelich, 62 Wis.2d 577, 583, 215 N.W.2d 390, 394 (1974), quoting State ex rel. Marachowsky v. Kerl, 258 Wis. 309, 313, 45 N.W.2d 668 (1951). See: State v. Berby, supra, 81 Wis.2d at 684, 260 N.W.2d 798.

SUFFICIENCY OF THE EVIDENCE.

The defendant contends that the chemical evidence adduced at the preliminary hearing in this case is subject to a number of objections, and consequently argues that the evidence was insufficient to bind him over for trial. He argues that the state failed to establish an adequate foundation for admission of either the oral testimony or the written reports of the chemists and further argues that even if the chemical evidence was properly admitted, it was insufficient to establish that the substances delivered were controlled substances.

The defendant first argues that the trial court erred in admitting into evidence four chemical reports identifying substances delivered by the defendant as cocaine. The defendant maintains that these documents constituted hearsay, and that insufficient foundation was established for their admission under the hearsay exception for past recollections recorded. Sec. 908.03(5), Stats. ¹

This court has said that recorded recollections are admissible in evidence only where the writing does not refresh a witness' memory sufficiently for him to testify fully and accurately, and where the witness can first testify that he knew the facts to be accurate when they were recorded, and that they were recorded while fresh in his mind. Harper, Drake & Asso. v. Jewett & Sherman Co., 49 Wis.2d 330, 342, 343, 182 N.W.2d 551 (1971); State v. Wind, 60 Wis.2d 267, 274, 275, 208 N.W.2d 357 (1973).

No such foundation for admission of the chemical reports was established prior to their admission into evidence. However, the record shows that on cross-examination, defense counsel elicited the testimony of chemist David R. Picard that he did not recall running the particular tests in question; that his report was true and accurate; and that he wrote down his test results as he did them. This testimony constitutes sufficient foundation for admission of Picard's report. ²

2. The defendant contends that a lack of foundation cannot be cured after admission of the documents, but this argument is unpersuasive on the facts of the present case. The purpose of the foundation testimony is to assure that the writing reflects an adequate recollection, correctly recorded, III Wigmore, Evidence (Chadbourne rev. 1970), secs. 745-747, pp. 94-100, and this purpose was achieved by the evidence elicited in cross-examination of Picard, which fully established the trustworthiness of the document. Further, on direct examination of Picard, defense counsel had asked to reserve his objection to Picard's testimony, and the trial court agreed to defer further proceedings on the objection until cross-examination. The fact that the foundation testimony was not introduced until that point does not preclude admission of the document.

In any event, sec. 165.79(3), Stats., specifically provides for the admissibility at a preliminary examination of certified reports prepared by the state crime laboratory. This subsection provides:

"(3) At any preliminary examination a report of the laboratory's findings with reference to all or any part of the evidence submitted, certified as correct by the administrator, shall, when offered by the state or the accused, be received as evidence of the facts and findings stated, if relevant and otherwise admissible in evidence. The expert who made the findings need not be called as a witness unless his appearance is demanded by the opposing party, in which case the judge shall so order and adjourn the hearing to a time when the expert is available to testify."

The reports admitted here were certified as required by the statute. It is the intent of sec. 165.79(3), Stats., that such certified reports be admissible as competent evidence in a preliminary hearing without the appearance of the expert who made the findings, except as otherwise provided by statute. Such reports are to be admitted unless they are inadmissible on some other ground. Similar statutes have been adopted in other jurisdictions, and their constitutionality has uniformly been sustained. See generally: Statutes compiled in V Wigmore, Evidence (Chadbourne rev. 1974), sec. 1674, fn. 7, pp. 827-833; Anno. 29 A.L.R. 289 (1924); 30 Am.Jur.2d, Evidence, sec. 1010, p. 144. The reports were properly admissible under this statute.

Each of the three chemists, after examining his written report, testified to having performed a series of four tests on respective samples of the substances allegedly delivered by the defendant, and further testified that in his opinion, to a reasonable degree of...