King, Deighan and Bilder. The opinion of the court was delivered by King, P.J.A.D.
In this case we must decide if a State Police chemist's laboratory report identifying a controlled dangerous substance (marijuana) may be admitted into evidence as a report of a public official where the chemist who analyzed the substance was not produced as a witness. The Municipal Court judge decided that the report was admissible as a public record in a prosecution for possession of marijuana, as a disorderly person's offense under N.J.S.A. 24:21-20(a)(4) and (b). The Law Division judge agreed at the trial de novo on the record in the Superior Court. R. 3:23-8. We disagree with these rulings, reverse the conviction, and remand for a new trial. We conclude that the hearsay exception in Evid.R. 63(15)(a) was not a proper basis for admitting this crucial hearsay evidence where the forensic chemist did not testify.
Defendant was accused of smoking marijuana in public while waiting in line to enter a night club in Clifton on March 6, 1982.
The police seized the suspect's cigarette after defendant allegedly dropped it on the ground. He claimed that a stranger handed him the cigarette just before the police approached him. On March 10 the alleged marijuana cigarette was taken to the State Police Laboratory for analysis. On June 28 it was returned to the Clifton Police Department unanalyzed. The cigarette was later resubmitted to the Laboratory on October 4 and returned to the Police Department on October 8 with the chemist's positive report.
When the "drug analysis result" report was offered in evidence in the municipal court defendant's counsel timely objected. R. 1:7-2. The municipal court judge overruled the objection to the chemist's report on the basis of a then-recent decision of the Law Division in State v. Malsbury, 186 N.J. Super. 91 (Law Div.1982). Contra, State v. Kraft, 134 N.J. Super. 416 (Cty.Ct.1975). On the appeal to the Law Division appellant was again found guilty; that judge found the laboratory report admissible hearsay under Evid.R. 63(15)(a) -- "Reports and Findings of Public Officials" as construed by Malsbury.*fn1
We agree with defendant's contention that the Evid.R. 63(15) does not justify admission of the State Police Laboratory report in this criminal case. That rule states
Subject to Rule 64, a statement is admissible if in the form of (a) a written statement of an act done, or an act, condition or event observed by a public official if it was within the scope of his duty either to perform the act reported or to observe the act, condition or event reported and to make the written
statement, or (b) statistical findings made by a public official whose duty it was to investigate the facts concerning the act, condition or event and to make statistical findings.
Evid.R. 64 requires that the proponent must make known in advance the intention to offer a written statement pursuant to Evid.R. 63(15) in order to provide an adverse party "with a fair opportunity to prepare to meet it." This was not done by the municipal prosecutor but even if he complied with Evid.R. 64 our decision would not differ.
As stated, under Evid.R. 63(15)(a) a public official's statement is admissible if it is a written statement of "an act done, or an act, condition or event observed by a public official, if it is within the scope of his duty either to perform the act reported or to observe the act, condition or event reported and to make the written statement." Under Evid.R. 63(15)(b) "statistical findings" are also admissible. The rationale of these exceptions to the hearsay rule is reportedly twofold
(1) the special trustworthiness of official written statements is found in the declarant's official duty and the high probability that the duty to make an accurate report has been performed, State v. Hudes, 128 N.J. Super. 589 (Cty.Ct.1974); 5 Wigmore, Evidence § 1632 (Chadbourn rev. 1974), and (2) to avoid the necessity of compelling a public official to leave his daily functions to testify as to an event which he ...