State v. Cosgrove

• Court: Supreme Court of Connecticut
• Writing for the Court: Before COTTER; COTTER
• Citation: 436 A.2d 33,181 Conn. 562
• Decision Date: 29 July 1980
• Parties: STATE of Connecticut v. Stephen M. COSGROVE. STATE of Connecticut v. Thomas PIERRO.

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436 A.2d 33 181 Conn. 562 STATE of Connecticut
v.
Stephen M. COSGROVE.
STATE of Connecticut
v.
Thomas PIERRO. Supreme Court of Connecticut. Argued April 2, 1980.
Decided July 29, 1980.

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[181 Conn. 563] Richard T. Meehan, Jr., Bridgeport, for appellant (defendant cosgrove).

David M. Reilly, Jr., New Haven, for appellant (defendant Pierro).

Donald A. Browne, State's Atty., with whom, on the brief, were Frank S. Maco, Asst. State's Atty., and Theresa A. Brown, law student intern, for appellee (state).

Before [181 Conn. 562] COTTER, C. J., and BOGDANSKI, PETERS, HEALEY and PARSKEY, JJ.

[181 Conn. 563] COTTER, Chief Justice.

The defendants were convicted after a combined trial to a jury of unlawfully possessing marijuana with the intent to sell or dispense it in violation of General Statutes § 19-480(b). ¹ Upon the trial court's denial of their motions for [181 Conn. 564] a new trial and for acquittal, they have appealed. Because the issues raised by each defendant on appeal are identical, with the one exception of the defendant Stephen Cosgrove's claim of error with regard to the admission in evidence of certain extrajudicial statements of his codefendant Thomas Pierro, we consider the two appeals in a single opinion.

From the evidence presented the jury could reasonably have found: On the morning of December 9, 1976, at approximately 1:30 a. m., two off-duty Stamford police officers were patrons of a drinking establishment in Port Chester, New York. The officers, who were in plain clothes at that time, met and conversed with the defendants Cosgrove and Pierro. During the conversation the defendant Pierro asked the officers if they could "handle some smoke?" He then told them that after coming from Miami, Florida with 150 pounds of marijuana and having sold approximately 90 to 100 pounds, he now had 50 or 60 pounds which he described as being "Columbian red" and if they were interested, he would be at room 302 of the Showboat Motor Inn in Greenwich. The defendants Pierro and Cosgrove then left the New York drinking establishment.

The Stamford police officers then proceeded to the Showboat Motor Inn in Greenwich and were admitted into room 302 by the codefendants at 4:30 a. m. Cosgrove pulled a large green plastic bag from under a bed in the room and gave it to [181 Conn. 565] Pierro who removed a handful of plant-like material which appeared to the officers to be marijuana and which Pierro gave to them in a paper bag. The officers told Pierro that they were interested in buying the marijuana but had to make a "connection" for the money; Pierro then told them that if they wanted to make a purchase they would have to return before 11 a. m. because he and Cosgrove were returning to Miami.

After the officers left the Showboat Motor Inn, they immediately went to the Stamford police station where they performed a field test on the plant sample given them by Pierro. The officers then prepared and secured a search warrant for room 302 of the Showboat Motor Inn and proceeded with that warrant to the town of Greenwich police department. In Greenwich, two Greenwich police officers were assigned to participate in the execution of the warrant.

The Stamford and Greenwich police officers then went to the motor inn, entered room 302, seized the two green plastic bags from under the bed in which the defendant Cosgrove had been, and placed the defendants under arrest. The two bags were taken by the Greenwich police officers to the Greenwich police station where they were

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tagged as evidence by the officers. These bags were subsequently transported to the state laboratory where analysis revealed that the plant-like substance in them was marijuana; the combined weight of the bags was found to be twenty-three pounds, two ounces. I

Of the defendants' numerous challenges to the trial court's rulings, the first they have preserved for appeal centers on the admission of the state [181 Conn. 566] toxicological report which they claim, inter alia, did not comply with the business entry rule provided for in General Statutes § 52-180-admissibility of business entries and photographic copies. ² In the present case the state did not seek admission of the report pursuant to General Statutes § 19-483(b), ³ but only sought to introduce it as a business record under § 52-180 through a foundation[181 Conn. 567] laid by Ronald Hennessey, a Greenwich police officer and Dr. Charles N. Reading, a toxicologist employed by the Connecticut department of health.

The toxicological report concerned the two bags of marijuana seized in room 302 of the Showboat Motor Inn and was admitted

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into evidence as state's exhibit G. Initially, the upper half of the report, which had been typed at the Greenwich police station and which described the items being submitted to the toxicology laboratory of the state department of health, was admitted without objection during the testimony of officer Hennessey. The bottom half of the report, which described the material examined, [181 Conn. 568] the examinations performed by the laboratory, and the results of the examinations which determined the substances to be marijuana, was admitted over objection during the testimony of Dr. Reading.

Neither at trial nor on appeal did the defendants contend that the toxicologist's report was inadmissible because it did not satisfy the three tests required by § 52-180: that the report was made in the regular course of the state toxicologist's business, that it was in the regular course of his business to make such a report, and that the report was made when the laboratory tested the items at issue or within a reasonable time thereafter. See American Oil Co. v. Valenti, 179 Conn. 349, 355-56, 426 A.2d 305; Hutchinson v. Plante, 175 Conn. 1, 4, 392 A.2d 488. ⁴ Dr. Reading's testimony clearly demonstrated that the report met the requirements of § 52-180. Rather, on appeal, the defendants claim that the toxicologist's report was inadmissible pursuant to § 52-180 because the chemical analyst's notes which Dr. Reading relied on to an extent in preparing the report were not produced at trial. The defendants seem to maintain that only the notes would constitute admissible business records. ⁵

It is well-settled that permissible information in a business entry or record may include information [181 Conn. 569] garnered from other persons whose business duty involved submitting that information for inclusion in the report or entry. E. g., Hutchinson v. Plante, supra, 175 Conn. 5, 392 A.2d 488; Mucci v. LeMonte, 157 Conn. 566, 569, 254 A.2d 879; D'Amato v. Johnston, 140 Conn. 54, 59, 97 A.2d 893. It is undisputed that it was the business duty of the analyst to submit information to the toxicologist for inclusion in his report.

II

The defendants' second claim of error with respect to the toxicological report is that its admission violated the defendants' right of confrontation under the sixth and fourteenth amendments to the United States constitution because the report contained statements of a laboratory chemist that the material under examination was determined to be marijuana and that the chemical analyst was not called to the witness stand to testify. In the present case, Ms. Pernitis, a toxicological chemist who was under the supervision of Dr. Reading, was directed by him to examine the material taken from the defendants for the presence of marijuana. Dr. Reading reviewed and examined the results of her report, and testified that he came to an independent conclusion that the nature of the substance examined was marijuana.

Since this court has recently determined that the admission of the testimony of a state toxicologist [181 Conn. 570] in these circumstances did not deprive a criminal defendant of the right of confrontation guaranteed by the

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federal constitution; State v. Reardon, 172 Conn. 593, 599, 600, 376 A.2d 65; and because similar, if not identical, considerations are involved in determining whether the admission of a toxicological report, which is unaccompanied by the testimony of the laboratory personnel who performed tests whose results appear in the report, is violative of a criminal defendant's right of confrontation, we would ordinarily be in a position to treat the defendants' claim here with relative dispatch. Because of the recent ruling, however, of the Connecticut district court in Reardon v. Manson, 491 F.Supp. 982 (D.Conn., 1980) (appeal pending), and Hawkins v. Steinert, 491 F.Supp. 982 (D.Conn., 1980) (appeal pending), granting petitioners' application for writs of habeas corpus and in view of the Second Circuit's opinion in United States v. Oates, 560 F.2d 45 (2d Cir.), which ostensibly set guidelines for the district court's decision in Reardon v. Manson, supra, we think that it is appropriate to examine carefully the present claim raised by the defendants with an eye ultimately cast toward the concerns evinced in the Second Circuit and Connecticut district court opinions just noted.

As the Supreme Court has noted, its holding in Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923, that "the Sixth Amendment's right of an accused to confront the witnesses against him is ... a fundamental right ... made obligatory on the States by the Fourteenth Amendment" forms merely the beginning of an inquiry into whether an extrajudicial statement introduced at a state criminal trial violates the confrontation clause. Dutton v. Evans, 400 U.S. 74, 79, 91 S.Ct. [181 Conn. 571] 210, 214, 27 L.Ed.2d 213 (plurality opinion; hearsay rules are not equated with the confrontation clause). The court has been careful to establish that the constitutional right of confrontation does not require that hearsay evidence can at no time be admitted. E. g., Parker v. Randolph, 442 U.S. 62, 73, 99 S.Ct. 2132, 2139, 60 L.Ed.2d 713 (plurality opinion); Dutton v. Evans, supra, 400 U.S. 80, 91 S.Ct. 215; Pointer v....