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State of Connecticut
vs.
.v. David Johnson; State of Connecticut .v. Diane McIntosh
 
Case:
Nos. 7401 7405
 
Location:
APPELLATE COURT OF CONNECTICUT
 
Date:
February 4 1992 Decided
 
Attorneys:
Denise Dishongh special public defender with whom were Louis S. Avitabile special public defender and on the brief Joshua R. Kricker special public defender for the appellants (defendants).
Timothy J. Sugrue assistant state's Counsel with whom on the brief were John M. Connelly state's Counsel and Marcia Smith senior assistant state's Counsel for the appellee (state).
 
Court:
O'Connell Norcott and Landau Js.
 
Author:
The Hon. Justice Landau
 

In a recursion to this court *fn1 the defendants appeal after a jury trial from a conviction of possession of heroin in violation of General Statutes SEC. 21a-279 (a) *fn2 and possession of drug paraphernalia in violation of General Statutes SEC. 21a-267 (a). *fn3 They claim that (1) the evidence presented at trial was insufficient to prove beyond a reasonable doubt that the substance at issue was heroin (2) their right to due process and equal protection of the laws was violated by the methodology employed by the state to test the seized material (3) the trial court improperly refused to strike expert testimony as unreliable hearsay (4) the trial court improperly denied their motion for judgment of acquittal on uncharged theories of liability and their post verdict request that the jurors be polled as to an element of the crime charged and (5) the trial court improperly denied their post verdict motion for a court-appointed expert. We affirm the judgment of the trial court.

The relevant facts are fully set forth in State v. Johnson 22 Conn. App. 40 576 A.2d 171 (1990) rev'd 219 Conn. 557 594 A.2d 933 (1991) and need be only briefly repeated here. The Waterbury police acting on information from a known confidential informant that drugs were being sold from the defendants' apartment set up a controlled buy. The informant entered the apartment with $30 and returned to the police with a packet containing a white powder that field-tested positive for cocaine. The police obtained and executed a search and seizure warrant based on this information. The search produced four packets of drugs and various drug paraphernalia.

I

In the defendants' first claim they assert that the evidence presented at trial was insufficient to prove beyond a reasonable doubt that the material seized contained heroin. We disagree.

"The issue of sufficiency of evidence and its appropriate standard of review have been analyzed countless times by both this court and our Supreme Court." State v. Iovieno 14 Conn. App. 710 712-13 543 A.2d 766 (1988). We employ a two part analysis in appellate review of the sufficiency of the evidence to sustain a criminal conviction. We first review the evidence presented at trial construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. State v. Owens 25 Conn. App. 181 192 594 A.2d 991 cert. denied 220 Conn. 910 597 A.2d 337 (1991). We then decide whether on the facts thus established and the inferences reasonably drawn therefrom the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant's guilt beyond a reasonable doubt. State v. Famiglietti 219 Conn. 605 609 595 A.2d 306 (1991); State v. Jarrett 218 Conn. 766 770-771 591 A.2d 1225 (1991).

The substance seized was tested by both the state laboratory and an independent examiner retained by the defendant. Two experts presented the jury with conflicting evidence regarding the issues of extraction and detection of the substance. Charles N. Reading the toxicologist who oversaw the testing at the state laboratory testified that the substance contained heroin. Kevin Miller the defendants' expert on chemical analysis testified that the substance did not contain heroin but rather acetyl codeine. Miller testified that the procedure he employed could extract and detect even the most minute traces of heroin. Reading disagreed with Miller's conclusion regarding the extraction capabilities of the procedure he employed and testified that Miller's procedure was not capable of adequately extracting heroin from the samples obtained. Reading further testified that any amount of heroin that might have been extracted from the sample was hydrolyzed to the point that it was no longer heroin. *fn4

It is the prerogative of the jury to assess conflicting evidence in order to determine what and whom to believe. State v. Reyes 19 Conn. App. 179 191 562 A.2d 27 (1989). The evaluation of testimony is the sole province of the trier of fact. We do not retry the case. Whitney Center Inc. v. Hamden 4 Conn. App. 426 429 494 A.2d 624 (1985). The jury was free to choose between Reading's testimony and Miller's testimony. See State v. Collette 199 Conn. 308 315 507 A.2d 99 (1986); State v. Cofone 164 Conn. 162 165 319 A.2d 381 (1972). The jury verdict indicates that it chose to credit the testimony of Reading. After a review of the record we conclude that there was sufficient evidence presented at trial for the jury to find that the seized material contained heroin.

II

The defendants' second claim is that they were denied equal protection and due process of the law when they were convicted on the basis of a test less reliable and specific than that required by law for workplace drug testing. Central to this claim is General Statutes SEC. 31-51u which provides in relevant part: "No employer may determine an employee's eligibility for promotion . . . solely on the basis of a positive urinalysis drug test result unless . . . (3) such positive test result was confirmed by a third urinalysis drug test which was separate and independent from the initial test utilizing a gas chromatography and mass spectrometry methodology or a methodology which has been determined by the commissioner of health services to be as reliable or more reliable than the gas chromatography and mass spectrometry methodology." Here the state did not use the gas chromatography and mass spectrometry methodology in testing the sample; rather it utilized thin layer chromatography ultraviolet spectrophometry and chemical tests to identify the heroin.

The defendants argue that the enactment of General Statutes SEC. 31-51u creates an arbitrary and irrational classification mandating the use of gas chromatography and mass spectrometry in workplace drug testing but not requiring such testing in criminal prosecutions. We disagree. To implicate the equal protection clauses under the state and federal constitutions it is necessary that the statute or action treat differently persons standing in the same relation to it. *fn5 Franklin v. Berger 211 Conn. 591 596 560 A.2d 444 (1989). Persons subject to the provisions of General Statutes SEC. 31-51u and criminal defendants are not similarly situated. Individuals within the former category face employment sanctions on the bases of urinalyses; individuals in the latter category face criminal conviction on the bases of inter alia the results of analyses of substances. Because persons facing criminal sanctions are not similarly situated with those subject to SEC. 31-51u this claim does not implicate the equal protection clause.

The defendants' due process claim also fails. They claim that the testing methodology used by the state to test the heroin was less reliable that the methodology described in SEC. 31-51u. Again the testimony of the expert witnesses differed with regard to the reliability of the tests performed. Reading's testimony that thin layer spectrometry is recognized as an ideal technique for drug screening; see 22B Journal of Chromatography Library Chromatography: Fundamentals and Applications of Chromatographic and Electrophoretic Methods ; does not imply that the testing methods employed by the state were not reliable. Reading specifically stated that in his opinion the state's testing methods were reliable. The jury saw fit to believe Reading the state's expert witness. It is within the province of the trier of fact to assign as much weight to a witness' testimony as it sees fit. State v. Girolamo 197 Conn. 201 215 496 A.2d 948 (1985). We refuse to disturb the result.

III

The defendants' third claim is that the trial court improperly denied their motion to strike Reading's testimony as unreliable hearsay because he did not personally perform the tests to which the materials were subjected. *fn6 We disagree.

The identical issue was addressed by the Supreme Court in State v. Reardon 172 Conn. 593 376 A.2d 65 (1977) cert. denied 481 U.S. 1020 107 S. Ct. 1903 95 L. Ed. 2d 509 (1987). In Reardon the defendant objected to the testimony of the state toxicologist on grounds of hearsay. *fn7 Specifically the defendant objected to the testimony regarding the contents of the tested substances on the basis that the toxicologist who was testifying did not actually perform the tests. Id. 595. Court concluded that the trial court properly admitted the testimony because it contained sufficient indicia of reliability and trustworthiness and that it was reasonably necessary to except such testimony from the hearsay rule. Id. 597-98. This rule was augmented in State v. Cosgrove 181 Conn. 562 584 436 A.2d 33 (1980) where Court concluded that expert's testimony may be based on reports of others if the reports are those customarily relied on by such an expert in formulating an opinion.

The defendants do not challenge the rule set forth in State v. Reardon supra. They do however attempt to distinguish Reardon on the basis that here Reading testified that he did not personally observe the chemist perform the tests at issue but that he merely reviewed the results of the completed tests. We conclude that the significant facts in the instant case are not distinguishable from those relied on by the Reardon court. Here as in Reardon Reading testified that he had personal knowledge of both the identity of the tested material and the tests performed. He also testified that the tests were conducted under his direction and supervision that he was present when the tests were conducted and that he personally observed the test results. The trial court therefore properly refused to strike the challenged testimony.

IV

The defendants next claim that the trial court improperly denied (1) their motion for judgment of acquittal on uncharged theories of liability and (2) their post-verdict request that the jury be polled as to its finding that the substance at issue was heroin. The defendants assert that these denials deprived them of their constitutional rights of due process. We disagree.

A

In count one of the substitute information the defendant was charged with possession of narcotic substances to wit: heroin in violation of General Statutes SEC. 21a-279 (a). In its case-in-chief the state presented evidence that the defendant did in fact possess heroin but presented no evidence supporting the conclusion that he possessed any narcotic substance other than heroin. The defendant filed a motion for judgment of acquittal pursuant to Practice Book SEC. 883 as to all substances for which the state had failed to produce evidence. The trial court denied the motion.

Our rules of practice limit a motion for judgment of acquittal to charged offenses or to offenses deemed to be lesser included offenses. Practice Book SEC. 883. Thus a judgment of acquittal may be rendered only as to a charged offense or a lesser included offense; it cannot be entered as to an offense never charged. Practice Book SEC. 883 provides that "[a]fter the close of the prosecution's case in chief or at the close of all the evidence upon motion of the defendant or upon its own motion the judicial authority shall order the entry of a judgment of acquittal as to any principal offense charged and as to any lesser included offense from which the evidence would not reasonably permit a finding of guilty." (Emphasis added.) Because motions for judgment of acquittal apply only to charged offenses or offenses that are deemed to be lesser included offenses of the charged offenses the trial court properly refused to grant the defendants' motion for judgment of acquittal as to uncharged offenses. See Practice Book SEC. 883.

B

After the jury returned its verdict the defendants requested that the jury be polled both as to the verdict and as to whether each juror found beyond a reasonable doubt that the substance was heroin. The trial court permitted the former and refused the latter. We agree with the propriety of the trial court's actions.

After the denial of the judgment of acquittal on substances other than heroin the defendants presented evidence that the material found in the defendants' apartment was not heroin but was another opium derivative acetyl codeine. Both experts testified that acetyl codeine and heroin or diacetyl morphine are derived from opium and both are narcotic substances.

The defendants argue that because this testimony in conjunction with the trial court's instructions in which it referred to the offense of possession of a narcotic substance and stated that the defendants were charged with possession of a narcotic substance made it possible for the jury to convict the defendants even if it did not find that the defendants possessed heroin the jurors should have been individually asked whether each of them had concluded that the substance was heroin. We disagree.

The jury was properly instructed that it must find that the defendants possessed heroin in order to convict them of the offense charged in count one of the informations. Prior to trial the jurors were instructed that the defendants were charged with possession of heroin. During the final charge the jury was twice instructed that the defendants were charged with possession of heroin. They were charged as to the presumption of innocence and the state's burden of proving each and every element of the offense beyond a reasonable doubt. They were instructed that they had to resolve the conflicting expert testimony. *fn8

After a verdict has been returned and before the jury has been discharged the jury may be polled at the request of any party or on the judicial authority's own motion. A poll of the jurors in a criminal case in not a matter of right but one that rests within the sound discretion of the trial court. State v. Tirado 194 Conn. 89 95 478 A.2d. 606 (1984). We read this as continuing the discretionary rule which has long been the law in this state. See e.g. State v. Chetcuti 173 Conn. 165 172 377 A.2d 263 (1977); State v. Marshall 166 Conn. 593 598 353 A.2d 756 (1974); State v. Shelton 160 Conn. 360 363-65 278 A.2d 782 (1971); State v. Tucker 146 Conn. 410 415 115 A.2d 876 (1959); State v. Hoyt 47 Conn. 518 533-34 (1880). *fn9

The jurors were individually polled as to the verdict. Each juror was asked whether the defendants were guilty of unlawful possession of heroin. *fn10 Each juror responded affirmatively. Inherent in their affirmative responses is the belief that the substance possessed by the defendant was heroin. Absent a fair indication to the contrary it is presumed that jurors follow the instructions of Court. State v. Rodriguez 210 Conn. 315 333 554 A.2d 1080 (1989).

On the basis of a review of the evidence the instructions and the polling of the jurors as to their verdict the failure of the trial court to poll the jurors on the individual element of the crime was not an abuse of discretion.

V

The defendants' final claim is that the trial court improperly denied their postverdict motion for appointment of an independent expert to test the substance at issue. The defendants rely on Practice Book SEC. 881 *fn11 and the inherent power of the trial court. The jury verdict was returned on April 26 1988. The defendants' motion was filed on May 10 1988 two weeks after the verdict was returned. It was heard on May 26 1988 and denied by Court on June 21 1988 almost two months after the verdict was returned. The trial court concluded that the "record legally supports the jury verdict rendered." It is clear that by this time the trial had been concluded the issue regarding the identity of the substance had been settled by the jury and the fact finders no longer were available. The defendants' motion amounted to no more than an attempt to relitigate the issue of the identity of the seized substance. The trial court properly denied the defendants' motion. *fn12

The judgment is affirmed.

In this opinion the other Court concurred.

 
Notes:

*fn1 In our original decision in this case State v. Johnson 22 Conn. App. 40 576 A.2d 171 (1990) rev'd 219 Conn. 557 594 A.2d 933 (1991) we concluded that the trial court improperly denied the defendants' motion to suppress because the probable cause underlying the search warrant was stale at the time it was executed and the evidence seized and that this court could not conclude that the police could have harbored an objectively reasonable belief in the existence of probable cause at the time the warrant was issued to justify the application of the good faith exception to the exclusionary rule. The Supreme Court reversed concluding that the warrant adequately established probable cause and that the information on which the warrant was obtained was not stale and remanded the case to this court for a determination as to the remaining issues.

*fn2 General Statutes SEC. 21a-279 (a) provides that a person may be imprisoned for possession or control of any narcotic substance.

*fn3 General Statutes SEC. 21a-267 (a) provides in relevant part: "No person shall use or possess with intent to use drug paraphernalia as defined in subdivision (20) of section 21a-240 . . . . Any person who violates any provision of this subsection shall be guilty of a class C misdemeanor.

*fn4 To hydrolyze is to alter or to change the molecular configuration. Hydrolyzed heroin becomes morphine.

*fn5 The equal protection clauses of the state and federal constitutions have the same meaning and limitations permitting simultaneous discussion. Franklin v. Berger 211 Conn. 591 594 n.5 560 A.2d 444 (1989).

*fn6 The defendants couch their claim in language amounting to a denial of due process. Their constitutional argument has not been briefed at all and is therefore deemed abandoned. State v. James 211 Conn. 555 588 560 A.2d 426 (1989).

*fn7 The toxicologist testifying in Reardon was the same Charles N. Reading who testified here.

*fn8 Court was referring to the testimony regarding the content of the seized substance.

*fn9 Similarly the Connecticut rules of practice provide for interrogatories in civil cases. See Practice Book SEC. 312. No parallel provision exists however for criminal cases.

*fn10 Specifically Court clerk asked each juror: "In the case of [State v. Johnson or State v. McIntosh] as to the first count of the amended substitute information charging the defendant . . . with the crime of possession of a narcotic substance to wit heroin in violation of General Statutes SEC. 21a-279 (a) is it your verdict that the defendant is guilty?"

*fn11 Practice Book SEC. 881 in relevant part provides: "Whenever the judicial authority deems it necessary on his own motion he may appoint any expert witnesses of his own selection."

*fn12 We note that the trial court in denying the request relied on the fact that "[t]he defendants presented no post verdict evidence in support of any of the claims raised by these motions." Although this statement does not accurately address the defendants' burden regarding such a motion the fact that the trial court reached the correct conclusion through an incorrect route will not invalidate an otherwise correct ruling. See Port Clinton Associates v. Board of Selectmen 217 Conn. 588 604-10 587 A.2d 126 (1991).