State v. Johnson, s. 7401

• Decision Date: 04 February 1992
• Docket Number: 7405,Nos. 7401,s. 7401
• Citation: 603 A.2d 406,26 Conn.App. 553
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. David JOHNSON. STATE of Connecticut v. Diane McINTOSH.

Page 406

603 A.2d 406

26 Conn.App. 553

STATE of Connecticut v. David JOHNSON.

STATE of Connecticut v. Diane McINTOSH.

Nos. 7401, 7405.

Appellate Court of Connecticut.

Argued Dec. 3, 1991.

Decided Feb. 4, 1992.

Denise Dishongh, Special Public Defender, with whom, were Louis S. Avitabile, Special Public Defender, and, on the brief, Joshua R. Kricker, Special Public Defender, for appellants (defendants).

Timothy J. Sugrue, Asst. State's Atty., with whom, on the brief, were John M. Connelly, State's Atty., and Marcia Smith, Senior Asst. State's Atty., for appellee (state).

Before EDWARD Y. O'CONNELL, NORCOTT and LANDAU, JJ.

LANDAU, Justice.

In a recursion to this court, ¹ the defendants appeal, after a jury trial, from a conviction of possession of heroin in violation of General Statutes § 21a-279(a) ² and possession of drug paraphernalia in violation of General Statutes § 21a-267(a). ³ They claim that (1) the evidence presented at trial was insufficient to prove beyond a reasonable doubt that the substance at issue was heroin, (2) their right to due process and equal protection of the laws was violated by the methodology employed by the state to test the seized material, (3) the trial court improperly refused to strike expert testimony as unreliable hearsay, (4) the trial court improperly denied their motion for judgment of acquittal on uncharged theories of liability and their postverdict request that the jurors be polled as to an element of the crime charged, and (5) the trial court improperly denied their postverdict motion for a court-appointed expert. We affirm the judgment of the trial court.

The relevant facts are fully set forth in State v. Johnson, 22 Conn.App. 40, 576 A.2d 171 (1990), rev'd, 219 Conn. 557, 594 A.2d 933 (1991), and need be only briefly repeated here. The Waterbury police, acting on information from a known confidential informant that drugs were being sold from the defendants' apartment, set up a controlled buy. The informant entered the apartment with $30 and returned to the police with a packet containing a white powder that field-tested positive for cocaine. The police obtained and executed a search and seizure warrant based on this information. The search produced four packets of drugs and various drug paraphernalia.

I

In the defendants' first claim, they assert that the evidence presented at trial was insufficient to prove beyond a reasonable doubt that the material seized contained heroin. We disagree.

"The issue of sufficiency of evidence and its appropriate standard of review have been analyzed countless times by both this court and our Supreme Court." State v. Iovieno, 14 Conn.App. 710, 712-13, 543 A.2d 766 (1988). We employ a two part analysis in appellate review of the sufficiency of the evidence to sustain a criminal conviction. We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. State v. Owens, 25 Conn.App. 181, 192, 594 A.2d 991, cert. denied, 220 Conn. 910, 597 A.2d 337 (1991). We then decide whether, on the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant's guilt beyond a reasonable doubt. State v. Famiglietti, 219 Conn. 605, 609, 595 A.2d 306 (1991); State v. Jarrett, 218 Conn. 766, 770-771, 591 A.2d 1225 (1991).

The substance seized was tested by both the state laboratory and an independent examiner retained by the defendant. Two experts presented the jury with conflicting evidence regarding the issues of extraction and detection of the substance. Charles N. Reading, the toxicologist who oversaw the testing at the state laboratory, testified that the substance contained heroin. Kevin Miller, the defendants' expert on chemical analysis, testified that the substance did not contain heroin, but rather acetyl codeine. Miller testified that the procedure he employed could extract and detect even the most minute traces of heroin. Reading disagreed with Miller's conclusion regarding the extraction capabilities of the procedure he employed, and testified that Miller's procedure was not capable of adequately extracting heroin from the samples obtained. Reading further testified that any amount of heroin that might have been extracted from the sample was hydrolyzed to the point that it was no longer heroin. ⁴

It is the prerogative of the jury to assess conflicting evidence in order to determine what and whom to believe. State v. Reyes, 19 Conn.App. 179, 191, 562 A.2d 27 (1989). The evaluation of testimony is the sole province of the trier of fact. We do not retry the case. Whitney Center, Inc. v. Hamden, 4 Conn.App. 426, 429, 494 A.2d 624 (1985). The jury was free to choose between Reading's testimony and Miller's testimony. See State v. Collette, 199 Conn. 308, 315, 507 A.2d 99 (1986); State v. Cofone, 164 Conn. 162, 165, 319 A.2d 381 (1972). The jury verdict indicates that it chose to credit the testimony of Reading. After a review of the record, we conclude that there was sufficient evidence presented at trial for the jury to find that the seized material contained heroin.

II

The defendants' second claim is that they were denied equal protection and due process of the law when they were convicted on the basis of a test less reliable and specific than that required by law for workplace drug testing. Central to this claim is General Statutes § 31-51u, which provides in relevant part: "No employer may determine an employee's eligibility for promotion ... solely on the basis of a positive urinalysis drug test result unless ... (3) such positive test result was confirmed by a third urinalysis drug test which was separate and independent from the initial test, utilizing a gas chromatography and mass spectrometry methodology or a methodology which has been determined by the commissioner of health services to be as reliableor more reliable than the gas chromatography and mass spectrometry methodology." Here, the state did not use the gas chromatography and mass spectrometry methodology in testing the sample; rather, it utilized thin layer chromatography, ultraviolet spectrophometry and chemical tests to identify the heroin.

The defendants argue that the enactment of General Statutes § 31-51u creates an arbitrary and irrational classification, mandating the use of gas chromatography and mass spectrometry in workplace drug testing but not requiring such testing in criminal prosecutions. We disagree. To implicate the equal protection clauses under the state and federal constitutions it is necessary that the statute, or action, treat differently persons standing in the same relation to it. ⁵ Franklin v. Berger, 211 Conn. 591, 596, 560 A.2d 444 (1989). Persons subject to the provisions of General Statutes § 31-51u and criminal defendants are not similarly situated. Individuals within the former category face employment sanctions on the bases of urinalyses; individuals in the latter category face criminal conviction on the bases of, inter alia, the results of analyses of substances. Because persons facing criminal sanctions are not similarly situated with those subject to § 31-51u, this claim does not implicate the equal protection clause.

The defendants' due process claim also fails. They claim that the testing methodology used by the state to test the heroin was less reliable than the methodology described in § 31-51u. Again, the testimony of the expert witnesses differed with regard to the reliability of the tests performed. Reading's testimony that thin layer spectrometry is recognized as an ideal technique for drug screening; see 22B Journal of Chromatography Library, "Chromatography: Fundamentals and Applications of Chromatographic and Electrophoretic Methods"; does not imply that the testing methods employed by the state were not reliable. Reading specifically stated that, in his opinion, the state's testing methods were reliable. The jury saw fit to believe Reading, the state's expert witness. It is within the province of the trier of fact to assign as much weight to a witness' testimony as it sees fit. State v. Girolamo, 197 Conn. 201, 215, 496 A.2d 948 (1985). We refuse to disturb the result.

III

The defendants' third claim is that the trial court improperly denied their motion to strike Reading's testimony as unreliable hearsay because he did not personally perform the tests to which the materials were subjected. ⁶ We disagree.

The identical issue was addressed by the Supreme Court in State v. Reardon, 172 Conn. 593, 376 A.2d 65 (1977), cert. denied, 481 U.S. 1020, 107 S.Ct. 1903, 95 L.Ed.2d 509 (1987). In Reardon, the defendant objected to the testimony of the state toxicologist on grounds of hearsay. ⁷ Specifically, the defendant objected to the testimony regarding the contents of the tested substances on the basis that the toxicologist who was testifying did not actually perform the tests. Id., at 595, 376 A.2d 65. The court concluded that the trial court properly admitted the testimony because it contained sufficient indicia of reliability and trustworthiness and that it was reasonably necessary to except such testimony from the hearsay rule. Id., at 597-98, 376 A.2d 65. This rule was augmented in State v. Cosgrove, 181 Conn. 562, 584, 436 A.2d 33 (1980), where the court concluded that expert's testimony may be based on reports of others if the reports are those customarily relied on by such an expert in formulating an opinion.

The defendants do not challenge the rule set forth in State v. Reardon, supra. They do, however, attempt to distinguish Reardon on the basis that, here, Reading testified that he did not personally observe the chemist perform the tests at issue but that he merely reviewed the results of the completed tests. We conclude that the significant facts in the instant...