State v. Larochelle

• Decision Date: 03 November 1972
• Docket Number: No. 6425,6425
• Citation: 112 N.H. 392,297 A.2d 223
• Parties: STATE v. Jon LAROCHELLE.
• Court: New Hampshire Supreme Court

Page 223

297 A.2d 223

112 N.H. 392

STATE v. Jon LAROCHELLE.

No. 6425.

Supreme Court of New Hampshire.

Nov. 3, 1972.

Warren B. Rudman, Atty. Gen., and Robert V. Johnson, II, Asst. Atty. Gen. (Johnson, orally), for the State.

Catalfo & Krans, Dover (H. Richard Krans, Jr., Dover, orally), for defendant.

GRIFFITH, Justice.

The defendant in this case was charged with operating a motor vehicle while under the influence of intoxicating liquor in violation of RSA 262-A:62 (supp.). Trial before Cooper, J., of the Rochester District Court resulted in a verdict of guilty. The court made written findings of fact, suspended imposition of sentence pending transfer, and reserved and transferred certain exceptions of the defendant.

Defendant was arrested on April 1, 1972, by a State trooper who took him to the Rochester police station. There he was given the Miranda warning and advised of his rights under the implied consent law, RSA 262-A:69-c. Defendant chose to have a breathalyzer test which was administered approximately an hour and one half after his arrest by a trooper who is a certified operator of a breathalyzer machine. A copy of the results of the test were furnished the defendant upon its completion and he was summoned to appear at the Rochester District Court on April 7, 1972. On that date he requested a continuance until April 14, 1972, to obtain counsel. This was granted and he appeared with counsel on April 14, 1972, at which time the trial was held. The report of the breathalyzer test was introduced in evidence without the presence of the certified operator.

The exceptions of the defendant all related to the validity and interpretation of RSA 262-A:69-k (supp.) added by Laws 1971, 109:1, effective July 4, 1971, which reads as follows: 'Official Record of Test. Any person, who is arraigned on a charge arising under RSA 262-A:69-a, shall file notice in said court, within five days immediately following the receipt by said person of the results of any blood alcohol test administered to him, requiring the attendance of the person who took the sample for said test or of the person who conducted the test, or both. Failure to file notice shall be deemed a waiver to require their attendance at the trial, and the official report of said test issued pursuant to RSA 262-A:69-a shall be deemed conclusive evidence of the conduct and results of said test.'

The defendant in this case was not informed of the above statute and it does not appear that he knew of its existence. Absent this statute the State would have produced the person who conducted the blood alcohol content test as a witness. State v. Reenstierna, 101 N.H. 286, 140 A.2d 572 (1958). The defendant argues that to offer only the written record of the test as proof of its conduct and result deprives him of the right to confront the witnesses against him. N.H.Const. pt. I, art. 15; State v. Clapp, 94 N.H. 62, 46 A.2d 119 (1946); U.S.Const. Amend. VI; Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). The defendant acknowledges that the constitutional right of confrontation may be waived but argues that RSA 262-A:69-k (supp.) 'deems' waiver to exist where none can validly be found under federal constitutional standards. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Humphrey v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972). This argument rests upon the assumption that the statute is unconstitutional if it provides for the admission of the official test report without the production by the State of the person conducting the test.

We conclude that the statute's reference to the 'official report of said test' indicates legislative reliance upon the common-law official written statements exception to the hearsay rule. Evidentiary trustworthiness is secured by the probability that public officers will discharge their duty to make accurate records. The exception is founded upon the inconvenience and expense of requiring the official's attendance under these circumstances. 5 Wigmore, Evidence ss. 1630-33 (3d ed. 1940); Perry v. Parker, 101 N.H. 295, 141 A.2d 883 (1958); Ferguson v. Clifford, 37 N.H. 86, 95 (1858). Statutes making official records of chemical tests admissible as evidence of their contents have regularly been held not to violate the constitutional right of an accused to confront the witnesses against him. Commonwealth v. Slavski, 245 Mass. 405, 140 N.E. 465 (1923); Commonwealth v. Harvard, 356 Mass. 452, 253 N.E.2d 346 (1969); Annot., 29 A.L.R. 289 (1924).

Pointer v. Texas, supra, relied upon by the defendant involved the use of testimony given at a preliminary hearing by an alleged accomplice of the defendant who was not present at the trial. Although the defendant was present at the preliminary hearing he was not represented by counsel and there was no cross-examination of the witness by him. Douglas v. Alabama, supra, decided at the same time, involved the use of the confession of an accomplice against the defendant when the accomplice refused to testify. The facts in Douglas are analogous to State v. Clapp, supra, in which our court found a violation of our State constitution.

The apparent equation of right of confrontation with the hearsay rule in these cases appeared to obstruct reform of the hearsay rule. 'Despite the superficial similarity between the evidentiary rule and the constitutional clause, the Court should not be eager to equate them. Present hearsay law does not merit a permanent niche in the Constitution; indeed, its ripeness for reform is a unifying theme of evidence literature. From Bentham to the authors of the Uniform Rules of Evidence, authorities have agreed that present hearsay law keeps reliable evidence from the courtroom. If Pointer has read into the Constitution a hearsay rule of unknown proportions, reformers must grapple not only with centuries of inertia but with a constitutional prohibition as well.' Note, Confrontation and the Hearsay Rule, 75 Yale L.J. 1434, 1436 (1966) (footnotes omitted).

Recent cases have disavowed any intention to constitutionalize the hearsay rule. California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970); Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972).

'While it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law . . . merely because evidence is admitted in violation of a long-established hearsay rule does not lead to the automatic conclusion that confrontation rights have been denied.' California v. Green, 399 U.S. at 155-156, 90 S.Ct. at 1933-1934, 26 L.Ed.2d at 495.

In Kay v. United States, 255 F.2d 476 (4th Cir. 1958), the admission of an official record of a blood test to prove alcoholic blood content was approved as not violative of the right to confrontation. In his concurring opinion in Dutton v. Evans, supra, 400 U.S. at 95-96, 91 S.Ct. at 223, 27 L.Ed.2d at 231, Harlan, J. stated: 'A rule requiring production of available witnesses would significantly curtail development of the law of evidence to eliminate the necessity for production of declarants where production would be unduly inconvenient and of small utility to a defendant.' Significantly among the examples he cites is Kay v. United States, supra.

In Dutton v. Evans, supra, the test advanced by the court is whether the evidence admitted under an exception to the hearsay rule bears such 'indicia of reliability' as to provide a satisfactory basis for the trier of fact to evaluate the truth of the prior statement without confrontation of the declarant. Blood tests for alcohol either by examination of the blood or by breathalyzer are scientifically reliable (see State v. Reenstierna supra) and the progress from the meagerly trained operator in State v. Roberts, 102 N.H. 414, 158 A.2d 458 (1960), to the present case with tests by breathalyzer conducted only by a certified operator indicate a test procedure of general reliability. State v. Gallant, 108 N.H. 72, 227 A.2d 597 (1967); Watts, Some Observations on Police-Administered Tests for Intoxication, 45 N.C.L.Rev. 34, 64 (1966). We hold that this scientifically reliable evidence, gathered and recorded pursuant to a public duty and admitted under RSA 262-A:69-k (supp.), carries sufficient characteristics of trustworthiness to be safely placed before the trier of fact without confrontation of the tester. The right conferred on a defendant to require the State to produce the person who conducted the test is statutory and not required by either the State or Federal Constitution. People v. Gauthier, 28 Mich.App. 318, 184 N.W.2d 488 (1970); United States v. Lloyd, 431 F.2d 160 (9th Cir. 1970); E. N. Griswold, The Due Process Revolution and Confrontation, 119 U.Pa.L.Rev. 711 (1971).

We recognize that evidence admitted under a state-created exception to the hearsay rule may nevertheless infringe constitutional rights. Phillips v. Neil, 452 F.2d 337 (6th Cir. 1971) and dissenting opinion in In re Mundy, 97 N.H. 239, 245, 85 A.2d 371, 375 (1952). None of the factors which weaken the trustworthiness of the evidence reviewed in those cases are found here.

We agree that in the case of a breathalyzer test there is less opportunity for a defendant to require the State to produce the tester than in the case of an analysis of the blood. This is due to substantial delay in obtaining the chemical analysis of the blood as compared to the instant results available from the breathalyzer. However, since there is no constitutional requirement that the State...