State v. Addazio

• Decision Date: 26 August 1975
• Parties: STATE of Connecticut v. Anthony F. ADDAZIO.
• Court: Connecticut Supreme Court

Page 153

363 A.2d 153

169 Conn. 416

STATE of Connecticut v. Anthony F. ADDAZIO.

Supreme Court of Connecticut.

Aug. 26, 1975.

Edward F. Hennessey, III, Special Public Defender, Hartford, for appellant (defendant).

Richard A. Schatz, Asst. State's Atty., with whom, on the brief, was John D. LaBelle, State's Atty., for appellee (state).

Before HOUSE, C.J., and MacDONALD, BOGDANSKI, LONGO and BARBER, JJ.

BARBER, Associate Justice.

The defendant, after a jury trial, was found guilty of selling a controlled drug in violation of 1969 Public Acts, No. 753, § 18(b), codified as § 19-480(b) in the 1969 Supplement to the General Statutes, and General Statutes (Rev. to 1968) § 19-452. He has appealed from the judgment. Although the judgment was rendered in August, 1970, this appeal, due to circumstances not disclosed in the record, was not filed until September, 1974, and no finding was made before October 1, 1974. The new rules pertaining to appeals in jury cases are applicable. Practice Book § 635A, as amended. The defendant's brief raises five principal issues.

It appears from the facts stated in the briefs that evidence was offered to prove the following: On July 15, 1969, Harry Guttornsen, a student at the University of Hartford, telephoned the defendant and made arrangements for the purchase of amphetamines. He met the defendant for the first time on Vine Street in Hartford and there got into the defendant's parked Buick automobile. At the time that Guttornsen got into the automobile to make the purchase, he was empty-handed. He rode for about five minutes through several streets in the automobile with the defendant and then returned to Vine Street where he got out of the automobile. He was carrying an ordinary brown paper grocery bag. He then entered his Volkswagen automobile and drove off. The police who had observed some aspects of the encounter with the defendant, started out in pursuit of Guttornsen and a high-speed chase through Hartford streets resulted. Guttornsen drove to the University of Hartford where he lost control of his automobile and crashed. At the time of the crash, Guttornsen threw a brown paper bag with its contents from his automobile into the underbrush. About five or ten minutes later, Detective Joseph Costardo of the Hartford police department recovered a brown paper bag containing two plastic bottles from the underbrush where the police saw Guttornsen throw a brown paper bag. One of the plastic bottles was opened and Detective Costardo observed a quantity of brown and white pills in capsule form. Harry Guttornsen purchased these amphetamines from the defendant for $300. He received from the defendant the brown paper bag containing the two plastic bottles with capsules.

Detective Costardo took the brown paper bag containing the two plastic bottles to the Hartford police headquarters. He removed a capsule from one of the bottles and placed it in a white envelope. Both the white envelope with contents and the brown paper bag with contents were locked in Detective Costardo's desk at police headquarters on July 16, 1969. On July 18, 1969, Detective Costardo delivered the white envelope with contents to the state laboratory for analysis. The brown paper bag with contents remained locked in Detective Costardo's desk until March 5, 1970, when it was delivered to the state toxicological laboratory. The items delivered to the state laboratory were locked in a cabinet which was in fact a room. There were three keys to this cabinet which were held by toxicologists Abraham Stolman, Theodore J. Siek and James Garriott. There was a great quantity of evidence in this cabinet from all over the state. The three toxicologists and two other employees had access to the cabinet during the working day. The white envelope and capsule were introduced at the trial as exhibit A. The brown paper bag containing the two bottles was introduced as exhibit B. Toxicologist Siek of the state laboratory testified concerning the analysis of exhibit A and his report was introduced as exhibit D. Toxicologist Siek was permitted by the court to take capsules from exhibit B during the trial and test them. Both exhibits A and B were found by Siek to contain amphetamines.

I

The defendant claims that the court erred in admitting into evidence, over his objection, the pills claimed to be amphetamines, and the results of an analysis of them, on the ground that the state had not offered sufficient proof of a chain of custody. Particularly he contends that there were four gaps in the chain of custody as follows: from lack of proof that the brown paper bag with contents found by Detective Costardo was the bag which Guttornsen received from the defendant; from lack of evidence that the capsules were the same as those received from Guttornsen; that while the capsules were at the state laboratory numerous persons had access to them; and that Siek did not test the first capsule delivered to the laboratory himself but gave it to a laboratory assistant who conducted the test.

An inference can be drawn that the brown paper bag and contents recovered by Detective Costardo was the same bag with contents sold by defendant to Guttornsen. State v. Harris, 159 Conn. 521, 533, 271 A.2d 74, cert. dismissed, 400 U.S. 1019, 91 S.Ct. 578, 27 L.Ed.2d 630. The state was not required to prove that it would have been impossible for the bag and contents to have been of different origin. State v. Gonski, 155 Conn. 463, 468, 232 A.2d 483; State v. Tucker, 146 Conn. 410, 414, 151 A.2d 876.

After recovery of the bag and contents by Detective Costardo, they were at all times in the custody of the police or the state laboratory. The state is not compelled to prove each and every circumstance in the chain of custody beyond a reasonable doubt. State v. Jones, Conn., 355 A.2d 95; State v. Johnson, Conn., 352 A.2d 294; State v. Hall, Conn., 345 A.2d 17. 'There is no hard and fast rule that the prosecution must exclude or disprove all possibility that the article or substance has been tampered with; in each case the trial court must satisfy itself in reasonable probability that the substance had not been changed in important respects.' State v. Johnson, 162 Conn. 215, 232, 292 A.2d 903, 912. 'The ruling of the trial judge may not be overturned except for a clear abuse of discretion.' State v. Brown, 163 Conn. 52, 57, 301 A.2d 547. 550. Siek personally opened the envelope containing the single capsule and was present when a chemical analysis was conducted on the capsule. The analysis was made under his direction. This delegation of duty is proper and is authorized by § 19-483(b) of the General Statutes.

There were no improper gaps in the chain of custody. The admission into evidence of the pills and the results of the analyses performed upon them was proper.

II

Toxicologist Siek testified as to the results of the analysis of the pill introduced as exhibit A. The state then requested permission to have him analyze some of the pills contained in the bottles introduced as exhibit B. The court overruled the defendant's objection to this motion. After testing the pills Siek was recalled and was asked: '(W)hat are the results of the eight capsules which you made yesterday?' The defendant objected on the ground that 'the statute requires that an original written report be submitted and Section . . . (20(b) of 1969 Public Acts, No. 753) requires that he file a report.' The objection was overruled and an exception was taken. Thereafter Siek testified that the results of his tests revealed the presence of amphetamines. The record does not show that the defendant made any request to have a toxicologist of his own choosing make an examination of the pills. See State v. Clemons, Conn., 363 A.2d 33.

Section 19-483 ¹ of the General Statutes became effective July 1, 1969. It has been subsequently amended by 1971 Public Acts No. 164, Public Act No. 73-681 § 18, and Public Act No. 74-186 § 6. Part (a) of the statute makes clear that it is primarily directed at the chief toxicologist of the state and does not preclude the use of the services of other qualified toxicologists. Part (b) requires the original report of an analysis made by analytical personnel of the state department of health to be signed by the analyst who actually conducts the test. It states further that such report shall be received in any court as competent evidence upon introduction through the testimony of any toxicologist of the state department of health.

The clear language of § 19-483, taken as a whole, as it read at the time of the trial indicates an intent to make a written report admissible in lieu of the testimony of the analyst when there has been a compliance with the requirements set forth in the statute. The statute nowhere indicates that the report must be admitted into evidence. The legislature clearly expressed what it obviously intended. United Aircraft Corporation v. Fusari, 163 Conn. 401, 411, 311 A.2d 65; see Kellems v. Brown, 163 Conn. 478, 505, 313 A.2d 53. The statute merely provides a refinement of the long-established exception to the hearsay rule permitting the introduction of public records as exhibits. See State v. Johnson, Conn., 352 A.2d 294; Hing Wan Wong v. Liquor Control Commission, 160 Conn. 1, 8, 273 A.2d 709, cert. denied, 401 U.S. 938, 91 S.Ct. 931, 28 L.Ed.2d 218. Ordinarily the objection is made when a report is allowed into evidence on the ground that there is no opportunity for cross-examination. State v. Johnson, supra; see State v. Marsh, Conn., 362 A.2d 523. In this case, the toxicologist who made the analysis was subject to cross-examination.

Because the defendant objected solely on the basis that the report was not submitted to the court, and since this is not required under the statute, we find no error in the ruling of the court permitting toxicologist Siek to testify as to the results of his analysis. 'This court is not bound to consider...