James Reardon, Petitioner-appellee, v. John R. Manson, Respondent-appellant.perry Hawkins, Petitioner-appellee, v. Richard Steinert, Respondent-appellant, 644 F.2d 122 (2d Cir. 1981)

Robert E. Beach, Jr., Asst. State's Atty., Connecticut, Wallingford, Conn., for respondent-appellant.

David S. Golub, Stamford, Conn. (Silver, Golub & Sandak, P. C., Stamford, Conn., on brief), for petitioners-appellees.

Before FEINBERG, Chief Judge, VAN GRAAFEILAND, Circuit Judge, and HOLDEN,^*  District Judge.

HOLDEN, District Judge:

The State of Connecticut appeals from the order of the United States District Court for the District of Connecticut, 491 F. Supp. 982, that granted the applications of the appellees for writs of habeas corpus following separate unrelated trials, convictions and unsuccessful appeals in the state courts of Connecticut. The petitioner Reardon was charged with the unlawful possession and possession with intent to sell marijuana. Hawkins was convicted of unlawful control and sale of cocaine. The convictions were affirmed in separate appeals by the Supreme Court of Connecticut in 1977.

The Reardon Petition

The record on appeal establishes that at both trials the State sought to prove the substances were marijuana and cocaine, respectively, by presenting Dr. Charles Reading, one of three toxicologists employed in the laboratory of the State Department of Health. Dr. Reading holds a degree in forensic medicine from the University of Maryland. Following employment by the New Jersey state police as its principal chemist, he has been employed by the Connecticut Department of Health since 1972.

The state laboratory is maintained, pursuant to statutes, by the health department and functions under the direction of Dr. Reading's immediate superior, the chief state toxicologist. The Connecticut statute requires the chief toxicologist to establish the standards for analysis of controlled drugs by qualified professional toxicologists and chemists operating under his direction and supervision.¹  The laboratory staff, in addition to the chief toxicologist, included Dr. Reading and two other toxicologists who jointly supervise the work of twenty-four chemists. The chemists perform the actual testing procedures and submit hand written reports of the materials used, the scientific data compiled and the test results.

The laboratory operating procedures in effect at the time of Dr. Reading's testimony required a toxicologist to take custody of the suspected substance. The supervising toxicologist removed the material from a vault and delivered it to a particular chemist to conduct a series of three tests which were performed according to the direction and supervision of the toxicologist. During the testing the readings of the instrumentation involved were recorded by the analyst. The results of each testing procedure were delivered to the supervising toxicologist with the working papers, including observations and recorded scientific data. The supervising toxicologist then discussed these reports with the chemist. At the conclusion of these procedures the supervising toxicologist was called upon to make an independent evaluation and judgment of the nature of the tested material on the basis of the recorded scientific data. Dr. Reading testified that the chemist who performed the test of the Reardon material was a Miss Pernitis.²  Dr. Reading personally supervised the work done by this chemist, examined the data recorded and the results of her testing procedure. On the strength of this information Dr. Reading was asked to state his opinion that the material tested was marijuana. Over objection by Reardon's counsel that the expert's opinion was based on hearsay, the court received Dr. Reading's opinion that the substance was marijuana.

Toward the close of direct examination, counsel moved for the production of any laboratory reports and notes relating to the examination of the controlled substances for use in cross-examination. The state's attorney informed the court that all laboratory information had been provided by voluntary disclosure. The trial court inquired if that was all the data available. The witness responded that the only other materials were "analytical notes." To understand them would require bringing the laboratory supplies and materials into court. The trial record indicates the court was satisfied that the defendant had been provided all the materials available under the applicable criminal rules of discovery.³ 

In cross-examination, defense counsel searched all aspects of the direct examination of the State's expert. The witness reiterated that the actual testing was done by the chemist Miss Pernitis while the witness was present in the laboratory and that the chemist's desk was approximately twelve feet away from the toxicologist's desk. He observed her "but not specifically to each detail of the test." At the conclusion of the testing procedure the chemist handed the witness her handwritten notes which reported her observations and findings. The cross-examination of Dr. Reading is reported in some thirty pages of the trial transcript.⁴ 

The record of the trial submitted in this appeal fails to disclose any request by the defense to have the State present the chemist Miss Pernitis to testify concerning the testing procedures performed. There is no indication that the defense sought to obtain samples of the accused substance for independent expert examination. All of the objections made by the defendant to Dr. Reading's testimony were advanced on the grounds of hearsay. The record on appeal fails to disclose any assertion by the defendant that the evidence presented to Dr. Reading violated his constitutional rights either to confront Miss Pernitis or compel her attendance.

The constitutional claim was made for the first time in Reardon's appeal to the Supreme Court of Connecticut.⁵  State v. Reardon, 172 Conn. 593, 376 A.2d 65 (1977).

The Hawkins Proceedings

The state proceedings against the petitioner Hawkins followed much the same pattern. Hawkins was convicted under the Connecticut criminal statutes for unlawful trafficking in cocaine. Dr. Reading was called as the state's witness to establish that the substance purchased from the defendant in a controlled sale on April 3, 1974, was cocaine. The testing procedures employed were substantially similar, except that the known and unknown substances were first submitted to ultraviolet ray spectrophotometry, followed by thin layer chromatography and chemical analysis.⁶  The tests in the Hawkins case were performed by the staff chemist Esther Quintana under Dr. Reading's supervision. He provided her with the materials, the known and unknown substances to be tested for comparison and directed her in the tests to be performed. Dr. Reading personally examined the test results. Hawkins' counsel objected to Dr. Reading's opinion, asserting shortages in the chain of custody, the witness' qualifications and hearsay.⁷ 

The Reardon Appeal

The facts found by the Connecticut Supreme Court in rejecting Reardon's constitutional claim are reported in the court's opinion, set forth in the margin.⁸  The court held:

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.

State v. Reardon, supra, 172 Conn. at 598, 376 A.2d 65 (citations omitted).

The Connecticut court went on to decide Reardon's Sixth Amendment claim. It heldThe jury's consideration of Dr. Reading's testimony, which we have held was admissible and which bore strong indicia of reliability, and upon which the defendant had a full and fair opportunity to cross-examine, did not deprive the defendant of the right of confrontation guaranteed by our state or federal constitutions.

Id. at 599, 376 A.2d 65.

In Hawkins' appeal the court rejected the appellant's claim of error in the admission of the testimony of Dr. Reading as a state toxicologist.

For the same reasons that we found no error in admitting similar evidence in the Reardon case (decided during the pendency of Hawkins' appeal), we find no abuse of the court's discretion in admitting Reading's testimony in this case.

State v. Hawkins, 173 Conn. 431, 378 A.2d 534 (1977).

The Ruling on the Petitioners' Applications for Writs of Habeas Corpus

After stating the facts upon which the applications for writs of habeas corpus were granted, the district court, in its memorandum of decision⁹ concluded:The testimony of Dr. Reading, in effect, merely repeated the information given him by his chemists. As to some of the tests, he simply reiterated the chemists' analysis with no first-hand knowledge of the test results. By passing along a chemist's assurance that a particular test yielded a positive result, Dr. Reading was only narrating hearsay. As to other tests where he himself observed the results of the experiments, he still was required to assume that the substances tested were in fact the substances in question, that the tests had been performed correctly, and that the appropriate standards had been used. When he examined the slides created by his chemists and then based his conclusion on the slides, he nonetheless still passed along the chemist's hearsay declaration that the tests were in fact properly conducted on the appropriate substances. As to these facts, Dr. Reading had no independent knowledge.

It is beyond dispute that the chemist's extrajudicial testimony constituted a central link in the prosecution of these petitioners. Petitioners' ability to cross-examine and confront Dr. Reading obviously does not satisfy their desire to confront the extrajudicial witnesses against them. Thus, it is clear that Dr. Reading's testimony was hearsay, and the only question is whether its admission offended the confrontation clause of the sixth amendment.

The district court found that Dr. Reading's testimony was crucial to the State's case in that it was the only evidence presented on the illegal nature of the substances. The court observed that the prosecution did not attempt to explain why the chemists Pernitis and Quintana were not called to testify. The court went on to state:

Since presumably the chemists in this case were available and were deliberately by-passed in favor of Dr. Reading, it is likely that the State was hoping to take strategic advantage of their absence.... Thus, unlike cases where a prosecutor has made a good faith effort to produce the declarant, here the State prosecutor appears to have taken an intentional step designed to shield the declarant from cross-examination and artificially to strengthen the State's case by reference to the doctorate degree of the supervising toxicologist.

While the district court declined to find a per se violation of the petitioners' right to confrontation, it stated:

It is enough to say that where a crucial statement of an extra-judicial declarant is involved and where the State does not establish that it made good faith efforts to produce the declarant, that State, at the very least, must demonstrate that the statement bears substantial independent indicia of reliability before it can be admitted against the accused.... No such indicia are presented here.

Relying primarily on this court's opinion in United States v. Oates, 560 F.2d 45 (2d Cir. 1977),¹⁰  the district court ordered that the writ issue discharging the petitioners from custody unless they were afforded a new trial within sixty days.

Discussion

The factual determinations by the federal district court and those reported in the opinion of the Connecticut Supreme Court appear to be in conflict in several respects.

Judge Blumenfeld treated the chemists as extra-judicial declarants. The Supreme Court of Connecticut regarded them to be collectors of trustworthy scientific data who performed testing procedures in keeping with their prescribed duties. The Connecticut court found the scientific facts gathered by the chemists under the direction and supervision of the expert toxicologist were reliable and trustworthy. The district court found that no indicia of reliability could be assigned to the extra-judicial declarations of the chemists who performed the tests. The state court found the results of the thin layer chromatography and chemical tests were personally observed by Dr. Reading. The district court found that Dr. Reading's opinion, based on these results, was founded on assumptions that were unsupported in the evidence. The state court determined there was reasonable necessity for Dr. Reading's reliance on the findings of the chemist Pernitis. The federal court was persuaded that the witnesses were deliberately by-passed by the State to advance the interests of the prosecution.

The proceedings in the district court, by stipulation, were submitted on the transcript of Dr. Reading's testimony at the state trials of Reardon and Hawkins. The court noted and made passing reference to the petitioners' appeals.

This appeal presents again the inevitable tension that develops when a federal district court overturns a state criminal conviction, which has been affirmed on appeal, because of an asserted denial of fundamental constitutional protections in the enforcement of the state criminal law. It touches sensitive areas of federalism and invokes concepts of comity which should prevail within the state and federal systems. E. g., Sumner v. Mata, --- U.S. ----, 101 S. Ct. 764, 66 L. Ed. 2d 722 (1981); Forman v. Smith, 633 F.2d 634 (2d Cir. 1980). Here, as in Sumner v. Mata, the constitutional claim was not raised at the trial; it was first considered and decided at the state appellate level. Both the state and federal courts considered and based their findings on transcripts of Dr. Reading's testimony at the petitioners' state trials. The findings of the Connecticut Supreme Court are stated in State v. Reardon, supra, 172 Conn. 593, 376 A.2d 65 and State v. Hawkins, supra, 173 Conn. at 431, 378 A.2d 534.

During the pendency of this appeal the Supreme Court of the United States decided Sumner v. Mata, supra, on a record in similar context to that presented for our review where there was no specific reference to 28 U.S.C. § 2254(d).¹¹  The Court stated:

Section 2254(d) applies to cases in which a state court of competent jurisdiction has made "a determination after a hearing on the merits of a factual issue." It makes no distinction between the factual determinations of a state trial court and those of a state appellate court. Nor does it specify any procedural requirements that must be satisfied for there to be a "hearing on the merits of a factual issue," other than the habeas applicant and state or its agent be parties to the state proceeding and that the state court determination be evidenced by "a written finding, written opinion, or other reliable and adequate written indicia." Section 2254(d) by its terms thus applies to factual determinations made by state courts, whether the court be a trial court or an appellate court. Cf. Swenson v. Stidham, 409 U.S. 224, 230, 93 S. Ct. 359, 363, 34 L. Ed. 2d 431 (1972). This interest in federalism recognized by Congress in enacting § 2254(d) requires deference by federal courts to factual determinations of all state courts. This is true particularly in a case such as this where a federal court makes its determination based on the identical record that was considered by the state appellate court and where there was no reason for the state trial court to consider the issue because respondent failed to raise the issue at that level. See Souza v. Howard, 488 F.2d 462 (CA1 1973). In fact, if the state appellate court here had declined to rule on the "identification" issue because it had not been properly raised in the trial court, the federal court would have been altogether barred from considering it absent a showing of "cause" or "prejudice." Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977).

Sumner v. Mata, supra, 101 S. Ct. at 769.

A divided panel of the Court of Appeals for the Ninth Circuit in Mata v. Sumner, 611 F.2d 754 (9th Cir. 1980) reversed the denial of habeas corpus petition by the district court, but failed to apply the "presumption of correctness" mandated by § 2254(d). Here, the district court, after noting the state convictions and the exhaustion of state remedies, apparently found facts substantially different from those reported in the opinion of the Connecticut Supreme Court, and also made no mention of § 2254(d).

The majority opinion of the Supreme Court in Sumner considered and dealt with the problem.

When it enacted the 1966 amendment to 28 U.S.C. § 2254, Congress specified that in the absence of the previously enumerated factors one through eight, the burden shall rest on the habeas petitioner, whose case by that time had run the entire gamut of a state judicial system, to establish "by convincing evidence that the factual determination of the State court was erroneous." 28 U.S.C. § 2254(d). Thus, Congress meant to insure that a state finding not be overturned merely on the basis of the usual "preponderance of the evidence" standard in such a situation. In order to ensure that this mandate of Congress is enforced, we now hold that a habeas court should include in its opinion granting the writ the reasoning which led it to conclude that any of the first seven factors were present, or the reasoning which led it to conclude that the state finding was "not fairly supported by the record."

100 S. Ct. at 771.

The Court referred to Taylor v. Lombard, 606 F.2d 371 (2d Cir.) cert. denied sub nom., Lombard v. Taylor, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), in which "the Federal Court of Appeals indicated in the course of its opinion full awareness of § 2254(d) and after an examination of the same documentary evidence on which the state court relied it expressly concluded that the state court finding to the contrary was not entitled to deference by reason of § 2254(d)." 100 S. Ct. at 769.

But in this case, just as in Sumner, it does not appear that the court below relied on any of the exceptions provided in subsection 1-8 of § 2254(d), quoted supra. Moreover, as in Sumner, the constitutional point was first passed upon by an appellate state court, as we have already noted; the federal habeas court considered the constitutional issues solely on the factual record made in the state courts; the court granting the writ failed even to mention § 2254(d), and despite the petitioner's failure to raise the constitutional issue in the state trial court, the state appellate court considered the issue on the merits and the federal courts did, as well.

Accordingly, we remand the case for further consideration in light of this opinion. Upon such reconsideration, the district court should enter a new judgment and the appeal therefrom, if any, should come to this panel, if practicable.¹²