State v. Reardon
| Decision Date | 05 April 1977 |
| Citation | 376 A.2d 65,172 Conn. 593 |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. James REARDON. |
David S. Golub, Stamford, for appellant (defendant).
Richard F. Jacobson, Asst. State's Atty., with whom, on the brief, were Donald A Browne, State's Atty., and Walter D. Flanagan, Asst. State's Atty., for appellee (state).
Before HOUSE, C. J., and COTTER, BOGDANSKI, LONGO and BARBER, JJ.
The defendant was charged with unlawfully possessing marijuana with intent to sell or dispense it in violation of Public Acts 1973, No. 73-681, § 26(a) (General Statutes § 19-480) and, in a second count, with having marijuana under his control in violation of Public Acts 1972, No. 72-278, § 26(b) (General Statutes § 19-481). In this appeal from his conviction on both counts he has briefed and argued error in the admission of certain evidence and in the court's instructions to the jury.
In the course of the trial, Dr. Charles N. Reading, one of three toxicologists employed by the state department of health, testified that in his opinion, based upon laboratory tests, samples of material seized from the defendant under a search warrant were marijuana. 1 The defendant's counsel objected and took exception to the admission of Dr. Reading's identification testimony as hearsay The defendant claims in his brief and argument on appeal in this court that "Dr. Reading's conclusions were undeniably unsupported hearsay." We do not agree.
The state toxicological laboratory, pursuant to § 19-483 of the General Statutes, is under the direction of the state's chief toxicologist, who "shall establish the standards for analytical tests to be conducted with respect to controlled drugs . . . by qualified professional toxicologists and chemists operating at his direction and shall have the general responsibility for supervising such analytical personnel in the performance of such tests." It is staffed by three toxicologists, including Dr. Reading, and twenty-four chemists, and receives approximately 20,000 cases each year. The chemists perform the actual analyses of material under the supervision of the toxicologists. In each case a toxicologist takes the material to be analyzed, gives it to the chemist involved, directs the work to be done, thereafter received the analyst's report, discusses the results with the chemist and makes an "independent decision as to what has been accomplished."
Dr. Reading testified at length on direct and cross-examination as to the manner in which drug identifications were conducted in the state toxicological laboratory in this and other similar cases. 2 A microscopic test, a thin-layer chromatography test and a chemical test were conducted. He readily admitted under cross-examination that he did not see the results of the microscopic test conducted by the chemist, Miss Pernitis, that this test was not absolute and that probably hundreds of other plants have cystolithic hairs. The thin-layer chromatography test separates the chemically active ingredients of the sample material upon a small, treated celluloid plate using a volatile solvent; a plate using the sample material is prepared simultaneously with a plate using a known marijuana sample as a standard, so that the two plates can be visually compared. The chemical test treats the separated ingredients with a developer which turns any THC present a distinctive pink color. Dr. Reading testified that the thin-layer test is a specific test indicative of marijuana containing THC, that he personally observed the developed plates and that this test alone is sufficient to establish the presence of marijuana while the microscopic test is not absolute.
Because Dr. Reading, in answer to a question on cross-examination, stated: "My opinion is based upon the summation of all the examinations," the defendant argues: "Thus, it is evident that at least part of Dr. Reading's opinion was based solely on Miss Pernitis' report to him of her results." We do not agree, even though at that point the defendant concedes that at least a part of that opinion was so based, that it was improperly admitted. There was testimony by Dr. Reading before the jury that he had personal knowledge upon which to rely in forming his opinion, including personal knowledge of the identity of the tested material, since he received it from the safe and gave it to the chemist for testing; personal knowledge of the procedures used to identify the material, since he directed the chemist as to what tests should be done; most importantly, he personally observed the results of the thin-layer chromatography and chemical tests, which he testified conclusively identified the presence of marijuana containing THC. He also testified, inter alia, that he had examined plantlike material for the presence of marijuana literally thousands of times, that he observed Miss Pernitis as she performed the tests although he did not see each detail, that her desk was approximately twelve feet from his and that she brought him the rough notes from which the final report was completed. He also testified that he personally supervised and examined tests which were completed by her. See State v. Brown, 169 Conn. 692, 703-706, 364 A.2d 186. The jury are the judges of the credibility of witnesses and may accept or reject their testimony. This is true whether there seems to be a contradiction between different witnesses or different statements made by the same witness since it is their province to determine credibility and the effect of testimony which ordinarily is the jury's exclusive function; and the court cannot substitute its judgment for theirs. Henry v. Bacon, 143 Conn. 648, 651, 124 A.2d 913; Castaldo v. D'Eramo, 140 Conn. 88, 93, 98 A.2d 664.
It was not error to admit the opinion of Dr. Reading, in any event, in view of the context of his testimony as a whole. Under the facts established in this case, the opinion of Dr. Reading, a state toxicologist, whose qualifications as an expert were not in issue, was admissible although based in part upon a test or tests conducted by an expert, a chemist, Miss Pernitis, upon which he could reasonably rely and where there was reasonable necessity for it in accordance with laboratory procedures adopted and undertaken pursuant to his supervision and direction; especially since, under the circumstances of this case, not only was his professional opinion founded in part upon routine tests and reports directed and supervised by him but also in part upon his firsthand personal knowledge and observation of the substance in question. Brown v. United States, 126 U.S.App.D.C. 134, 375 F.2d 310, 318; see United States v. Morrison, 531 F.2d 1089, 1094-95 (1st Cir.); United States v. Harper, 460 F.2d 705 (5th Cir.); Jenkins v. United States, 113 U.S.App.D.C. 300, 307 F.2d 637, 641, 642 (en banc); State v. Salter, 162 N.W.2d 427 (Iowa); McCormick, Evidence (2d Ed.) § 15; see also 31 Am.Jur.2d, Expert & Opinion Evidence, § 42; 30 Am.Jur.2d, Evidence, §§ 991 et seq.; annot., 19 A.L.R.3d 1008; cf. Caslowitz v. Roosevelt Mills, Inc., 138 Conn. 121, 125-26, 82 A.2d 808. It has been held that there is no rule that facts proven under exceptions to the hearsay rule, though received in evidence, must be denied all evidentiary value where there is a reasonable necessity for such an exception, and where it is supported by an adequate basis for assurance that the evidence has those qualities of reliability and trustworthiness attributed to other evidence admissible under long-established exceptions to the hearsay rule without violating constitutional rights. Kay v. United States, 255 F.2d 476, 480-81 (4th Cir.).
The holding herein is to be distinguished from the rule in cases such as Brown v. Blauvelt, 152 Conn. 272, 205 A.2d 773, wherein the expert opinion of a doctor was held inadmissible where he was not being consulted for the purposes of advise or treatment, but merely for the purpose of enabling him to give his opinion as a witness.
The defendant further claims that he was denied his "constitutional right to confrontation" guaranteed by the Connecticut and United States constitutions, citing article first, § 8, of the Connecticut constitution and the fifth amendment to the federal constitution. The right to confrontation, however, is guaranteed by the sixth amendment of the United States constitution. In 1965, in Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923, the Supreme Court ruled that the fourteenth amendment made the confrontation clause obligatory upon the states. See State v. Bugbee, 161 Conn. 531, 534, 290 A.2d 332; 21 Am.Jur.2d, Criminal Law, § 336. Thereafter, in Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213, it decided that a murder defendant's right of confrontation was not violated by the use against him of a nontestifying declarant's hearsay statement which was...
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