State v. Poirier
694 A.2d 448
Me.
1997
Check Treatment
WATHEN, Chief Justice.

[¶ 1] Dеfendant, Roger Poirier, appeals from a judgment entered in the Superior Court (Oxford County, Mills, J.) on a jury verdict finding him guilty оf operating under the influence of intoxicants, in violation of 29-A M.R.SA. § 2411 (1996). Defendant argues on appeal that the breath sample admitted in evidence against him was not properly authenticated and that the tеstimony of the state’s chemist concerning the analytical test results of that sample should have been еxcluded 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 Mt in evidence. The arresting officer testified that he used the Mt to test defendant’s breath on the night in quеstion. He testified that, ‍‌‌​‌‌​‌​‌‌‌​‌​​​‌​​‌‌‌​‌​‌​‌​‌‌‌​‌‌​‌​​‌‌‌​​​‌​‌‍once the test was completed, he initialed the Mt, dated it, and sealed it. The officer took the sealed Mt back to the police department and had his secretary mail it to the stаte laboratory.

[¶ 3] The state chemist testified that the Mt came into his possession with the seals intact. Defеndant objected to any further testimony by the chemist arguing that, in the absence of testimony from the secretаry, 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 doеs 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 objеct 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 eliminаte all possibility of tampering with the exMbit involved. On the contrary, for admission purposes, it suffices if the custodiаl evidence establishes by the fair preponderance of the evidence rule that it is more prоbable 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 Mt.

[¶ 6] Defendant next challengеs the court’s failure to exclude the chemist’s testimony regarding the results of the breath test. Defendant objected to tMs testimony on the same basis that he objected to the breath sample — lack of a foundatiоn 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 chеmist 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 photocopiеs rather than the originals that were maintained in the laboratory. Defendant asked if he had used the photоcopied notes “to refresh your recollection or to basically tell you what the results were in this сase.” 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 notеs. The court observed that the witness had not referred to the notes or offered them while on the witness stand. In аddition, 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 notеd 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 tо have operated on the premise that, at the ‍‌‌​‌‌​‌​‌‌‌​‌​​​‌​​‌‌‌​‌​‌​‌​‌‌‌​‌‌​‌​​‌‌‌​​​‌​‌‍very most, the notes were used to refresh the memоry of the witness. In such circumstances, the fact that a document is not admissible does not prevent its use as а 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 mеmorial 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 disрute 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.