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State v. Poirier
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:  1997 ME 86
Docket: OXF-96-407
Submitted on briefs March 14, 1997
Decided April 29, 1997




	[¶1]  Defendant, Roger Poirier, appeals from a judgment entered in
the Superior Court (Oxford County, Mills, J.) on a jury verdict finding him
guilty of operating under the influence of intoxicants, in violation of 29-A
M.R.S.A. § 2411 (1996).  Defendant argues on appeal that the breath sample
admitted in evidence against him was not properly authenticated and that
the testimony of the state's chemist concerning the analytical test results of
that sample should have been excluded on the basis of the best evidence
rule.  Finding no error, we affirm the judgment.
	[¶2]  At the trial, the State introduced a breath test kit in evidence. 
The arresting officer testified that he used the kit to test defendant's breath
on the night in question.  He testified that, once the test was completed, he
initialed the kit, dated it, and sealed it.  The officer took the sealed kit back
to the police department and had his secretary mail it to the state
	[¶3]  The state chemist testified that the kit came into his possession
with the seals intact.  Defendant objected to any further testimony by the
chemist arguing that, in the absence of testimony from the secretary, the
break in the chain of custody rendered any further testimony inadmissible. 
The court overruled his objection.   
	[¶4]  A break in the chain of custody of real evidence is relevant in
assessing the weight of that evidence, but it does not inexorably affect
admissibility.   Our rule provides that:

The requirement of authentication or identification as a
condition precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter in question is what
its proponent claims.

M.R. Evid. 901(a).  Authenticity is cast in terms of conditional relevance,
State v. Thompson, 503 A.2d 689, 691 (Me. 1986); M.R. Evid. 104(b), and a
trial court's relevancy determinations are reviewed for clear error.  State v.
Philbrick, 669 A.2d 152, 155 (Me. 1995).  
	[¶5]  Authentication of an object may be accomplished in a number of
ways.  Resort to the establishment of a chain of custody imposes no 

"new or extraordinary conditions upon the admission of
evidence ....  The law does not demand that the proponent of
evidence demonstrate the chain of custody so overwhelmingly as
to eliminate all possibility of tampering with the exhibit involved. 
On the contrary, for admission purposes, it suffices if the
custodial evidence establishes by the fair preponderance of the
evidence rule that it is more probable than not that the object is
the one connected with the case."

State v. Vanassche, 566 A.2d 1077, 1080 (Me. 1989) (quoting Thompson,
503 A.2d at 691).  In the present case, the court did not err in determining
the conditional relevance of the breath test kit.  
	[¶6]  Defendant next challenges the court's failure to exclude the
chemist's testimony regarding the results of the breath test.  Defendant
objected to this testimony on the same basis that he objected to the breath
sample -- lack of a foundation due to a break in the chain of custody.  The
court again overruled defendant's objection, and the chemist testified that
the sample revealed a blood-alcohol content of .158% to .16%.  Even though
the chemist referred to no notes during his direct examination and
presented none in evidence, defendant established in cross-examination
that the laboratory notes he brought to court were photocopies rather than
the originals that were maintained in the laboratory.  Defendant asked if he
had used the photocopied notes "to refresh your recollection or to basically
tell you what the results were in this case." The chemist answered "yes" and
was not asked for any further explanation.
	[¶7]  Relying on State v. Degen, 552 A.2d 2 (Me. 1988), defendant
moved to strike the chemist's testimony on the basis that it was somehow
impermissibly based upon his photocopied notes.  The court observed that
the witness had not referred to the notes or offered them while on the
witness stand.  In addition, the court ascertained that there was no actual
good faith dispute about any difference between the originals and the
photocopies.  The court overruled the objection and noted that "even if we
were dealing with the fact situation in [Degen]," any deviation from the best
evidence rule would be harmless error.  
	[¶8]  In this case it makes no difference whether the documents were
used to refresh the memory of the chemist or were being used as past
recollection recorded.  The court appears to have operated on the premise
that, at the very most, the notes were used to refresh the memory of the
witness.  In such circumstances, the fact that a document is not admissible
does not prevent its use as a means of refreshing the recollection of a
witness.  See Field & Murray, Maine Evidence § 612.1 at 6-84 (3d ed.
1992).  The best evidence rule does not apply, and a copy may be used
without accounting for the original.  The only question is whether a
document used for this purpose is genuinely calculated to revive the
witness's memory.  Id.
	[¶9]  It is a question of fact for the court to determine whether a
document is used for the purpose of refreshing memory, or as a memorial of
past recollection.  State v. LeClair, 382 A.2d 30, 32 (Me. 1978).  Even if we
were to assume that these notes were presented as the past recorded
recollection of the witness, the absence of any good faith dispute concerning
the contents of the photocopy would render any error in the application of
the best evidence rule harmless.  See Degen, 552 A.2d at 4.
	The entry is:
					Judgment affirmed.

Attorneys for State: Norman R. Croteau, District Attorney Joseph M. O'Connor, Asst. Dist. Atty. P O Box 179 South Paris, ME 04281
Attorney for defendant:
Tara K. Jenkins. Esq.
Law Offices of William Maselli
98 Court Street
Auburn, ME 04210