Appeal from a judgment of the United States District Court for the District of Connecticut (M. Joseph Blumenfeld, Judge) granting petitions for habeas corpus challenging evidence presented in the petitioner's state trials as a violation of their Sixth Amendment right to confrontation. Remanded.
Before Feinberg, Chief Judge, Van Graafeiland, Circuit Judge, and Holden,*fn* 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 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.*fn1 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.*fn2 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.*fn3
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.*fn4
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.*fn5 State v. Reardon, 172 Conn. 593, 376 A.2d 65 (1977).
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.*fn6 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 ...