State v. Lee
| Decision Date | 03 July 1991 |
| Docket Number | No. 89-530,89-530 |
| Citation | 134 N.H. 392,593 A.2d 235 |
| Parties | The STATE of New Hampshire v. Robert E. LEE, Jr. |
| Court | New Hampshire Supreme Court |
John P. Arnold, Atty. Gen. (Donald Feith, Asst. Atty. Gen., on the brief, and Mark S. Zuckerman, Asst. Atty. Gen., orally), for the State.
W. Kirk Abbott, Jr., Asst. Appellate Defender, Concord, by brief and orally, for defendant.
The defendant, Robert Lee, was convicted after a jury trial in the Superior Court (McHugh, J.) on six counts of sale or possession of controlled substances. RSA 318-B:2, :26, I, II. He appeals his convictions on three of these charges, asserting that the trial court erred in admitting the State's experts' opinions about the identity of the substances. He claims that the State failed to establish the accuracy of the infrared spectrophotometer used in the tests. For the reasons explained below, we reject the defendant's argument and affirm.
The defendant was arrested on March 7, 1989, at the onset of a sale transaction involving a white powder, suspected to be cocaine. A search of the defendant's car led to the discovery of a quantity of suspected marijuana. Testimony at trial revealed that pursuant to an undercover investigation, a State trooper had engaged in prior sale transactions with the defendant on January 5, 1989, for suspected cocaine, February 16 for suspected codeine and valium, and March 6 for suspected cocaine. The charges reached trial in the following form: (1) grand jury indictment for sale on January 5--cocaine; (2) grand jury indictment for sale on February 16--codeine; (3) grand jury indictment for sale on February 16--valium; (4) grand jury indictment for sale on March 6--cocaine; (5) grand jury indictment for possession with intent to distribute on March 7--cocaine; and (6) information for possession on March 7--marijuana. After trial, the jury convicted on all charges other than the possession with intent to distribute, on which the defendant was convicted of plain possession. The defendant appeals the convictions on the first three indictments listed.
Pertinent to the matters appealed, the State presented the testimony of two laboratory analysts to establish the identity of the suspected substances, Criminalist Frank Powell, who tested the powder purchased in January, and Criminalist Philip Harmon, who tested the pills purchased in February. Each testified that he had conducted a series of four tests on the substances. The first three tests were non-specific, narrowing the general characteristics of the substance. Only the fourth test, the infrared (IR) spectrophotometer test, established the presence of the controlled substance in the tested samples and its exact identity.
The IR spectrophotometer operates by focusing a beam of radiant light on the substance. It then measures the amount of energy absorbed, and graphs the energy spectrum emitted. Each substance has a unique graph pattern of energy peaks and valleys. By comparing this pattern with the graph of a "known" substance, the expert can evaluate whether the substances are the same. Using this method, the State determined that the materials sold by the defendant contained controlled substances.
The defendant contends that absent evidence of an instrument's accuracy, test results and opinions based on those results are inadmissible. On the challenged tests, because the State could not establish if, or when, the machines had been calibrated, he sought to have the results stricken and also sought a directed verdict. In his argument he refers us to State v. Ahern, 122 N.H. 744, 449 A.2d 1224 (1982), in which we stated that "results of scientific tests are inadmissible unless there is proof that the test device was operating accurately and that the test was performed by qualified individuals." 122 N.H. at 745, 449 A.2d at 1225. From this he urges that the State's failure to establish proper calibration of the IR spectrophotometer prior to the tests conducted by Powell and Harmon should result in the exclusion of their expert testimony.
The defendant correctly points out that we have recognized the unique nature of scientific tests and have predicated the admissibility of evidence based on such tests on "proof that the test device was operating accurately...." Ahern, 122 N.H. at 745, 449 A.2d at 1225. This imposes a responsibility upon the proponent seeking admission of such evidence to establish the prima facie reliability of any test results. See, e.g., State v. Roberts, 102 N.H. 414, 417, 158 A.2d 458, 460 (1960). We have never determined the exact scope of such "proof".
The defendant urges that we adopt a standard requiring the proponent to "establish that the machine was operating accurately." Such a position is in conflict with the language and purpose of our Rules of Evidence. Rule 901 states:
"(a) General provision.--The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
(b) Illustrations.-- ... [T]he following are examples of authentication....
(9) Process or system.--Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result."
N.H.R.Ev. 901. Rule 901 does speak to the question whether the machine is reliable. See United States v. Downing, 753 F.2d 1224, 1240 n. 21 (3d Cir.1985) (). It does not, however, place formal requirements on such proof. The trial court must make this determination. See Roberts supra.
We do not regulate which way the State must show the accuracy of an instrument. Indeed, requiring a documented calibration within any time frame, be it six hours or six days, would be arbitrary, and in specific cases either too broad or too limited. The logic of the test, whether an absolute measurement, as in radar or timed speed checks and blood alcohol tests, a relative comparison, as with hair or blood samples, or a comparison against an absolute, as in this IR spectrophotometer process, calls for different degrees of "proof" of accuracy. While several State legislatures have chosen to regulate the foundational requirements, see, e.g., ME.REV.STAT.ANN. tit. 29, § 1312(6) (Supp.1990), the rule leaves it to the discretion of the trial court to determine when a sufficient showing of the particular instrument's accuracy has been made. Accord Commonwealth v....
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...to the spectrum generated by a “library” test result of a known substance (internal quotation marks omitted)); State v. Lee, 134 N.H. 392, 593 A.2d 235, 236–37 (1991) (“The IR spectrophotometer operates by focusing a beam of radiant light on the substance. It then measures the amount of ene......
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