State v. Moore

• Decision Date: 12 December 1973
• Citation: 353 N.E.2d 866,47 Ohio App.2d 181
• Parties: , 1 O.O.3d 267 The STATE of Ohio, Appellee, v. MOORE, Appellant.
• Court: Ohio Court of Appeals

Page 181

47 Ohio App.2d 181

353 N.E.2d 866, 1 O.O.3d 267

The STATE of Ohio, Appellee, v. MOORE, Appellant.

Court of Appeals of Ohio, Ninth District, Summit County.

Dec. 12, 1973.

Syllabus by the Court

1. In establishing the chain of evidence, the state is not required to negate all possibilities of substitution or tampering. It need only establish that it is reasonably certain that substitutions, alterations, or tampering did not occur.

2. A defendant's constitutional rights are not violated by the fact that 18, 19 or 20 year old students are exempted from jury duty if they request to be excused.

3. A defendant has no right to participate in an in camera inspection of previous notes, statements and reports made by prosecution witnesses. The purpose of the inspection is for the judge to determine if there were any inconsistencies between the testimony of a witness and his prior statements.

Stephan Gabalac, Pros. Atty., Akron, and Frederic L. Zuch, Cuyahoga Falls, for appellee.

Parker & Parker, Akron, for appellant.

MAHONEY, Judge.

The defendant (appellant), Barry K. Moore, was convicted of charges in two separate indictments for delivery of a barbiturate, in violation of R.C. 3719.24(A). The jury found that the defendant sold one 'hit' on February 26, 1972, and two 'hits' on March 8, 1972, to David Moore (no relation of the defendant's), an undercover agent for the sheriff's office. Both sales allegedly took place at the Bowlarama (a bowling alley, with an adjacent bar called the Lion's Den and, also, a combination pinball and pool room which was frequented by the devotees of rock music).

The defendant has appealed the convictions, setting forth eight assignments of error, the first of which has ten branches.

First Assignment of Error (branches IA, IC, ID, and IH). These assigned errors deal with the chain of evidence on state's exhibits 1 and 2, which were the February 26 and March 8 'hits' sold to the undercover agent. We have examined the record and find that within a few hours of receiving the 'hits,' which were in white powder form, and wrapped in ordinary kitchen aluminum foil, David Moore delivered them personally to Sergeant Robert Scalise. Scalise, in turn on each occasion, placed them in a plastic vial, after first marking and than sealing them, after enclosing an identifying tag.

On each occasion, the vial was placed into and kept in an evidence locker in the sheriff's office. The vials were removed, on each occasion, by Sergeant Scalise, and personally taken by him to the state bureau of criminal identification, in Richfield, Ohio. The vials were checked in by a receptionist. Scalise did not see them again until he returned, on separate occasions, to obtain and return each to the sheriff's evidence locker.

During trial preparation, Scalise was informed that the technician, who had performed the tests, was no longer employed by the state and would not be available to testify. Therefore, on November 21, 1972, Scalise returned both vials to the B.C.I. laboratory, and turned them over to a different receptionist.

Mr. David Kish, a technician at B.C.I., testified that he received both vials from the receptionist on November 21. He further testified that the vials were on his desk, or in the work area, for about a week before he was instructed by Henry Dombrowski, Director of the laboratory, to perform the tests. He further testified that he recognized the handwriting on the seal and markings as that of a technician who was no longer employed at B.C.I. Mr. Kish also testified that he performed the tests on November 28, and resealed the vials. He personally brought the vials to Akron for this trial, on November 30, 1972, and turned them over to Sergeant Scalise, who gave them to the prosecuting attorney.

Neither the receptionist, nor the technician who first performed the tests, testified as to their roles in the case. The burden of establishing a chain of evidence to identify the specimens or exhibits is upon the state. (Columbus v. Marks (1963), 118 Ohio App. 359, 194 N.E.2d 791.) However, the burden is not an absolute one. Where there is no evidence indicating confusion with the identity of the specimen or of the possibility of tampering with it, then the testimony of the expert should be admitted. (State v. Myers, (1959), Ohio App., 164 N.E.2d 585, 82 Ohio Law Abst. 216.) The practicalities of proof do not require the state to negate all possibilities of substitution or tampering. The state need only establish that it is reasonably certain that substitutions, alteration or tampering did not occur. (Eisentrager v. State (1963), 79 Nev. 38, 378 P.2d 526.)

We find that there was sufficient evidence connecting all of the chain of events, and precluding, with reasonable certainty, any substitution, alteration or tampering. Therefore, assignments of error IA, IC, ID, and IH are overruled, as the state has properly shown a chain of evidence, and state's exhibits '1 and 2,' as well as the testimony of David Kish, were properly admitted.

Assignment of Error IB;

The defendant claims the state failed to prove that the substances in state's exhibits 1 and 2 were, in fact, substances within the special statutory definition of a barbiturate, as contained in R.C. 3719.23(A), which reads:

"Barbiturate' means the salts and derivatives of barbituric acid, also known as maloynl urea, having hypnotic or somnifacient action, and compounds, preparations and mixtures thereof.'

This claimed error we interpret as being that it was against the manifest weight of the evidence for the jury to find that the substances in state's exhibits 1 and 2 were, in fact, 'salts and derivatives of barbituric acid * * * having hypnotic and somnifacient action * * *.'

Deputy David Moore testified that, on the night of February 25-26, 1972 (when he met Rodney Baker, who was in a car with the defendant, Barry Moore, in the Bowlarama parking lot), Baker said to him (David Moore): 'I just did some out of sight seconal.' When asked where he got it, Baker said: 'from my friend here' (who was the defendant). Baker introduced David Moore to Barry Moore. David testified that he asked Barry if he had any more left, and Barry replied: 'Yes, I have single hits for a dollar and double hits for $2.' David then purchased a 'hit' from Barry.

David Moore also testified that, on March 8, 1972, Barry approached him at the pool table in the bowling alley, with the statement: 'I have those two hits of seconal for you.' David then purchased a double hit from Barry. David testified also that seconal was a barbiturate.

The technician, David Kish, testified that a barbiturate is a depressant. He further described the testing of the substances that he had done at the B.C.I. laboratory, finding that the substances were barbiturates. During his direct examination, the trial court read to the jury the statutory definition of barbiturate, as setforth above. Then the prosecuting attorney asked the following question:

'Now, in your expert opinion, do the results of your tests of State's Exhibit I show the substance that you examined met the statutory definition just given by the court, in your opinion?'

The answer 'Yes.'

The same question and answer was testified to concerning state's exhibit 2.

After the state had rested its case, the defendant offered the testimony of Doctor Allan F. Krivis, a professor of chemistry at the University of Akron. Dr. Krivis' testimony essentially concerned the reliability of the testing devices, and the methods used by the B.C.I. laboratory. He had not actually examined or tested state's exhibits 1 and 2. His opinion was that the three tests performed by the state were not individually conclusive of the presence of a barbiturate in the substance. He also felt that those tests (cobalt acetate, copper sulfate and ultraviolet spectrophotometer), could not determine, even if a barbiturate were present, whether or not it had 'hypnotic or somnifacient action.'

He further testified that barbituric acid, in and of itself, is not physiologically active. He said that it can only be so when its chemical structure is changed by 5-5 di-substitution, at the number 5 carbon position. If you substitute six or more carbon atoms instead of five, then the substance becomes a convulsant. His testimony was basically that the tests would get positive results from other substances, and that other materials could give the same type of curve as shown on the graphs, state's exhibits F and G. His opinion was that chromatographic tests should be run to separate out foreign matter and impurities, and to isolate the material to be examined before performing the various tests. After determining the presence of a barbiturate, he would use other physical and chemical tests, including quantitative analysis and the infrared photospectrometer, to determine if the barbiturate had hypnotic or somnifacient qualities by ascertaining whether or not it was a 5-5 di-substituted compound.

Doctor Krivis did testify that seconal was a barbiturate, and that it was a 5-5 di-substituted compound, having hypnotic or somnifacient action. After the defense rested, the state offered the testimony of Charles L. Miller (a pharmacist), and Henry Dombrowski (a chemist, and director of the B.C.I. laboratory). The pharmacist testified that all barbiturates, in the proper dosage level, have hypnotic or somnifacient action. Upon cross-examination, he testified that barbituric acid derivatives that were mono-substituted were inactive, while the di-substituted were active as central nervous system depressants.

Henry Dombrowski's testimony reviewed the testing procedures in the B.C.I. laboratory and particularly concerned the ultraviolet spectrophotometer. He testified that when a barbiturate is found to be present in a given substance, the procedure then is to run a buffer solution test. In this test, the P.H. factor of a solution is changed and the U.V....