State v. Rawls

• Decision Date: 17 December 1985
• Citation: 198 Conn. 111,502 A.2d 374
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Bobby Lee RAWLS.

Page 374

502 A.2d 374

198 Conn. 111

STATE of Connecticut v. Bobby Lee RAWLS.

Supreme Court of Connecticut.

Argued Oct. 2, 1985.

Decided Dec. 17, 1985.

Robert A. Lacobelle, Asst. State's Atty., with whom, on brief, was Donald A. Browne, State's Atty., for appellee (state).

John W. Watson, Asst. Public Defender, with whom, on brief, was Joette Katz, Public Defender, for appellant (defendant).

Before PETERS, C.J., and SHEA, DANNEHY, SANTANIELLO and KLINE, JJ.

SHEA, Associate Justice.

After a jury trial, the defendant, Bobby Lee Rawls, was convicted of two counts of possession of narcotics in violation of General Statutes § 19-481(a). ¹ The defendant was sentenced to seven years imprisonment on one count, and to a consecutive sentence of seven years on the other count with execution suspended after one year, making a total effective sentence of fourteen years, suspended after eight, with five years probation. ² The court, Callahan, J., subsequently modified the sentences to run concurrently. From this judgment, the defendant appeals claiming (1) that he was denied the right to confront the witnesses against him as to the analysis of the drugs, and (2) that multiple convictions for the simultaneous possession of cocaine and heroin violated his rights under the double jeopardy clause of the United States constitution. ³ 3] We are persuaded only by the double jeopardy claim.

On August 9, 1981, at approximately 3:30 a.m., members of the Bridgeport police department conducted a raid at an after hours club. While in the club, a police detective observed the defendant place a black pouch on the bar and begin to walk toward an exit. The defendant was then stopped and asked to return to the bar where he had left the pouch. The detective inspected the bag and found a yellow spoon with a white powder residue, two glassine envelopes, a plastic bag and a film container all of which held a white powder substance. The defendant was arrested for possession of narcotics.

At trial, the state offered Charles Reading, a state toxicologist, to testify as to the nature of the substances that were contained in the black pouch. Reading was qualified as an expert in the field of toxicology and described the testing procedures used to determine the contents of the pouch. On the basis of the test results, he concluded that the residue on the spoon and the substances in the plastic bag and in the film container were cocaine, and that the powder in one of the glassine envelopes was heroin.

I

The defendant claims, for the first time on appeal, that he was denied the right to confront witnesses against him as guaranteed by the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. ⁴ The defendant's claim relates to the testimony of Reading concerning the testing procedures used upon the substances in the black pouch. He argues that, because Reading did not perform the actual tests on the substances and did not provide the court with adequate indicia of reliability for his statements, his testimony consisted of inadmissible hearsay evidence which deprived the defendant of his right to confront the witnesses against him. We do not agree because the defendant, by his failure timely to raise such an objection at trial, waived his confrontational rights.

At trial, after Reading testified that the contents of the bag were indeed narcotics, the state concluded its questioning. At no time during the direct examination did the defense counsel object to Reading's testimony. Defense counsel initiated cross-examination by confirming that Reading did not perform the tests himself. At that point, the trial court asked the state's attorney if he intended to offer the toxicological report into evidence. The state's attorney responded, "I had intended to offer it to [sic] the last witness." After defense counsel concluded cross-examination, the state rested its case. After a brief recess, the defendant also rested.

At the close of the evidence, the defendant for the first time objected to Reading's testimony by way of his motion for judgment of acquittal. Claiming that the "whole evidence of the drugs should go out," he objected to the evidence on hearsay grounds. Defense counsel recognized that he had failed to object during the examination of Reading, but explained the omission by his misunderstanding of the statement of the state's attorney that he intended to introduce the report through the "last" witness. Defense counsel, as well as the trial court, interpreted the statement to mean that the report would be offered through another witness. Despite this misinterpretation, the court denied the defendant's motion.

Even if it were assumed that the testimony in question was hearsay, ⁵ the admission of hearsay evidence does not necessarily violate the confrontation clause. In California v. Green, 399 U.S. 149, 155-56, 90 S.Ct. 1930, 1933-34, 26 L.Ed.2d 489 (1970), the United States Supreme Court noted that "[w]hile 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." See note, "Confrontation and the Hearsay Rule," 75 Yale L.J. 1434, 1436 (1966); State v. Brigandi, 186 Conn. 521, 531, 442 A.2d 927 (1982); State v. Cosgrove, 181 Conn. 562, 577, 436 A.2d 33 (1980); McCormick, Evidence (3d Ed.1984) § 252.

In State v. Cosgrove, supra, 578, 436 A.2d 33, we declared that where hearsay evidence is offered, the proper focus of the court's concern is whether there are adequate "indicia of reliability" to justify placing such evidence before the jury. See Mancusi v. Stubbs, 408 U.S. 204, 213, 92 S.Ct. 2308, 2313, 33 L.Ed.2d 293 (1972); Dutton v. Evans, 400 U.S. 74, 81, 91 S.Ct. 210, 215, 27 L.Ed.2d 213 (1970). Further, we noted that any such hearsay must " 'afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement.' " State v. Cosgrove, supra, 181 Conn. at 571, 436 A.2d 33; California v. Green, supra, 399 U.S. at 161, 90 S.Ct. at 1936. We concluded that the admission of a toxicological report, prepared in the regular course of laboratory business, containing statements by a testing chemist who fails to testify, does not violate the defendant's right to confront and cross-examine the witnesses against him, provided that the report is introduced through a witness who can furnish a basis for its reliability.

The gravamen of the defendant's claim is not that the failure to call the chemists who actually performed the tests rendered Reading's testimony inadmissible or denied the defendant his right to confront the witnesses against him. The defendant recognizes that Cosgrove makes such an argument untenable. He argues, rather, that his confrontational rights were violated because Reading's testimony did not establish "adequate indicia of reliability," as is necessary for admission under Cosgrove. He cited the state's failure to mention the names of the testing chemists and to prove that Reading supervised the testing chemists in analyzing the substances seized from the defendant, two components of reliability that were present in Cosgrove. The defendant does not contend that the state had to call further witnesses against him. He argues merely that the state's ambiguous statement induced him prematurely to terminate his cross-examination of Reading, in the mistaken belief that another witness would provide the needed assurances of reliability.

Throughout the examination of Reading, the defendant never objected to the testimony as to the narcotic content of the substances. As he claims, the defendant may have presumed that the subsequent admission of the toxicological report, through a witness who would provide the necessary foundation and assurances of reliability, would render any hearsay objection ineffective under the rule articulated in Cosgrove. See State v. King, 187 Conn. 292, 309, 445 A.2d 901 (1982); State v. Reardon, 172 Conn. 593, 599, 376 A.2d 65 (1977). However, the mere fact that Reading's testimony might have been inadmissible hearsay does not inexorably lead to the conclusion that the defendant's confrontational rights were violated. The primary interest secured by confrontation is "the right of cross-examination." Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965); State v. Randolph, 190 Conn. 576, 591, 462 A.2d 1011 (1983).

The defendant's right to cross-examine Reading was not restricted. In fact, the defendant elicited from this witness that he did not actually test the drugs. The jury could reasonably have drawn inferences, unfavorable to the state, from that testimony. The defendant did not inquire as to who actually performed the tests, nor whether the tests were performed according to standard toxicological practice. Further, he chose not to cross-examine Reading extensively.

Therefore, the essence of the defendant's claim is that the state failed to provide the necessary assurances of reliability for Reading's testimony, as Cosgrove requires. Because of this alleged deficiency, the defendant should have objected to the state's initial questioning of Reading on the narcotic content of the substances. A timely objection based on the state's failure to lay a proper foundation for his opinion should have been made before Reading answered the question. See Hackenson v. Waterbury, 124 Conn. 679, 683, 2 A.2d 215 (1938); Snow v. Howard Motors, Inc., 3 Conn.Cir.Ct. 702, 706-707, 223 A.2d 409 (1966). Because the defendant...