The Guiding Principle Regarding a Chain of Custody Question - Case Study Example

Senior Partner Bart New Associate November 9, 2008 Re: Stratmore – Appellate Review ________________________________________________________________________ INTRODUCTION This legal memorandum is respectfully submitted as in inter office memorandum for the purposes of evaluating this firm’s chances of filing a successful appeal on behalf of Sally Stratmore. FACTS On December 30, 2005, Fort Bend County Sheriffs Deputy Doug Patterson was working the graveyard shift. He and his partner observed a car with broken tail lights run a red light. They pulled the vehicle over and Patterson asked the driver, Sally Stratmore, to produce her driver’s license. After the deputy reviewed the driver’s license, the deputy requested that the driver step out of her car. Stratmore seemed very nervous and agitated and reluctantly got out of her car. Patterson was about to pat-down appellant, when she bolted. Patterson quickly apprehended Stratmore. He then proceeded to search the appellant and found what turned out to be about 29 grams of cocaine. Deputy Patterson testified at trial that once he returned to his office, he bagged the evidence, sealed it, with the proper documentation and dropped it into the overnight lock box. Once he deposited it, he had no further contact with the evidence. The state later called Janet Trujillo, the State chemist who tested the evidence. She testified that she picked up the evidence from the evidence locker at the Fort Bend County Medical Examiner’s office. The state called no other witnesses concerning the handling of this particular evidence. At the close of the prosecutor’s case in chief, Attorney for Stratmore moved for directed verdict, because there was a break in the chain of custody. The trial judge denied the request. Appellant was ultimately found guilty, and wishes to appeal the conviction. This brief is respectfully submitted as an evaluation of case law to determine whether or not there is an argument to be made “that there was a break in the chain of custody and what are the chances of success”. ISSUE 1. Does the leaving evidence in an overnight lock box break the chain of custody of the evidence pursuant to the rules of evidence in the state of Texas? 2. Assuming that there is a break in the chain of custody, is the evidence admissible? ANALYSIS 1. The Standard of Review On appeal, the trial court has the discretion to determine the admissibility of evidence. Werner v. State, 711 S.W.2d 639, 643 (Tex.Crim.App. 1986). The Appellate court will not reverse the trial courts decision on the admissibility of evidence unless the record shows the trial court clearly abused its discretion. Id.; Gallegos v. State, 776 S.W.2d 312, 316 (Tex. App.--Houston [1st Dist.] 1989, no pet.) When an individual is convicted of a crime and appeals and challenges the sufficiency of the evidence to support the jurys verdict of guilty, it has long been proper to view the evidence in the light most favorable to the jurys verdict. Ransonette v. State, 550 S.W.2d 36, 42 (Tex.Cr.App.1976). The rule gave reference to the role of jurors as factfinders who had heard the witnesses and observed their demeanor, and considers the affirmative and explicit finding of the jury as to guilt, which the jury was required to find beyond a reasonable doubt, and which formed the very basis of the criminal conviction. Id. at 41. After that, came Jackson v. Virginia, 443 U.S. 307 (1979), which involved a federal habeas corpus proceeding where the sufficiency of the evidence to sustain a state criminal conviction was at issue. Id. at 308. Jackson set a standard of review of state convictions by federal courts based upon the due process requirements of the Fourteenth Amendment. Id. For many years federal courts long declined to review the sufficiency of the evidence supporting state criminal convictions on the basis that such questions did not raise a federal constitutional question. See, e.g., Whitney v. California, 274 U.S. 357, 367(1927); Sinclair v. Turner, 447 F.2d 1158, 1161 (10th Cir.1971), cert. den. 405 U.S. 1048 (1972); See 28 U.S.C., § 1257 (1976), and 28 U.S.C., § 2254 (1976). In Thompson v. City of Louisville, 362 U.S. 199 (1960), the United States Supreme Court carved a narrow exception from the above stated rule, holding that a conviction based upon no evidence violated due process of law. Id. at 203. Thompson made clear that it had not endorsed federal review of the sufficiency of the evidence, but only federal review for a total absence of evidence. Id. Following the advent of Thompson, federal courts reviewed state criminal trial records but only to determine if there was at least some evidence to support the judgments. See, e.g., Brooks v. Rose, 520 F.2d 775 (6th Cir.1975); Cunha v. Brewer, 511 F.2d 894 (8th Cir.1975); Johnson v. Maryland, 425 F.Supp. 538 (D.Md.1976). However, in Jackson v. Virginia, supra, the United States Supreme Court broke sharply with this established precedent. Relying upon its earlier decision in In re Winship, 397 U.S. 358 (1970), which found that due process requires the prosecution to prove every element of a criminal offense beyond a reasonable doubt, the court held that in a challenge to a state conviction brought under habeas corpus statute, which requires federal courts to entertain a state prisoners claim that he is being held in custody in violation of the Constitution or laws of the United States, the applicant is entitled to federal habeas corpus relief if it is found that upon the evidence adduced at trial no rational trier of fact could have found proof of the essential elements of the crime beyond a reasonable doubt. Id. at 364. In Jackson the Court wrote: “[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ Woodby v. INS, 385 U.S. at 282. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt”. Id. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinders role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. The criterion thus impinges upon ‘jury’ discretion only to the extent necessary to guarantee the fundamental protection of due process of law. 2. The Defense Did Not Establish A Break In The Chain. Where an object is not distinctive or unique in appearance, or where the object is of a nature that admits a risk of material but impalpable change—such as a chemical or bodily fluid specimen—then the objects identity and continuity of condition must be established by a chain of custody. Moore v. State, 821 S.W.2d 429, 431 (Tex. App.—Waco 1991, no pet.). A chain of custody consists of testimony of each person who had custody of the item, from the time of its discovery or initial connection with the case to the time of its presentation at trial. Luna v. State, 493 S.W.2d 854, 856 (Tex. Crim. App. 1973). It is not required that all possibility of tampering or adulteration be eliminated; minor gaps in the chain go to weight, not admissibility. Salinas v. State, 507 S.W.2d 730, 731 (Tex. Crim. App. 1974); Kingsbury v. State, 14 S.W.3d 405, 407 (Tex. App.—Waco 2000, no pet.) (“Absent evidence of tampering or commingling, theoretical breaches in the chain of custody do not affect the admissibility of evidence.”); Garner v. State, 939 S.W.2d 802, 805 (Tex. App.—Fort Worth 1997, pet. refd). Here, it can be argued that there was no gap in the chain of custody. If there was a gap in the change of custody between the drop box and the evidence locker, there does not appear to have been an objection. Assuming arguendo, that there was an objection made at trial, the appellate court will most likely find that there was not a gap in the chain of custody. In Blackmon v. State , 830 S.W.2d 711, 713 (Tex.App.-Houston [1st Dist.] 1992, pet. refd), the court stated: In this case, every party who had possession of the drugs marked them and identified the drugs at trial. We find the chain of custody into the lab was established. While there is only testimony about the Houston police departments general storage procedures after police receive marked evidence, there is no showing of a break in the chain of custody between Officer Thompson and the lab. We hold that the evidence presented at trial is sufficient in light of the fact that the beginning and the end of the chain of custody was established. Id. Here, there was testimony that the evidence was placed in the drop box which would constitute the beginning of the chain, and there was testimony by the state chemist stating when he picked up the evidence. Like Blackmon, because there was evidence establishing when the evidence was first dropped and when it was picked up, there is not an established showing of a break in the change of custody. 3. Even if there Is An Established Break In Custody, The Evidence Is Still Admissible. Proof of the beginning and the end of the chain will support admission of the evidence barring any showing of tampering or alteration. Any gaps in the chain go to the weight of the evidence rather than to its admissibility. In the absence of any evidence of tampering, an objection that the State has failed to establish the proper chain of custody goes to the weight of the evidence rather than its admissibility. Bird v. State, 692 S.W.2d 65, 70 (Tex.Crim.App.1985), cert. denied, 478 U.S. 1031 (1986); Dart v. State, 798 S.W.2d 379, 382 (Tex.App.-Fort Worth 1990, pet. refd). Against that backdrop, the predicate for the admission of material and relevant real evidence is that the exhibit has been (1) satisfactorily identified and (2) authenticated to be the identical object that is in issue and (3) that its condition has not been substantially changed or altered since the date in question. Texas Rules of Evidence, Rules 901 & 902. In lieu of a witness, a Chain of Custody Affidavit may be prepared and filed pursuant to Vernons Ann. C.C.P. Art. 38.42. Lack of positive identification goes to weight and not admissibility. Jones v. State, 617 S.W.2d 704 (Tex.Cr.App.1981). In Irvine v. State, 857 S.W.2d 920, 925 (Tex.App.-Houston [1st Dist.] 1993, pet. refd), a similar contention was made wherein appellant suggested in his brief that “[t]he possibility exists that the original baggies were supplemented by other baggies.” Id. at 925. Appellant in Irvine argued that the state did not establish a proper chain of custody because of minor inconsistencies in the testimony of the officers concerning the number of baggies seized and the name of the officer who submitted the baggies as evidence. Id. The Irvine court stated: “Where physical evidence is properly identified, care and custody issues go to the weight to be given the evidence, not to its admissibility”. Blackmon v. State,830 S.W.2d 711, 713 (Tex.App.-Houston [1st Dist.] 1989,pet. refd); see Gallegos v. State, 776 S.W.2d 312, 315 (Tex.App.-Houston [1st Dist.] 1989, no pet.). Only upon a showing that the substance was tampered with or changed will a care and custody question affect admissibility. Blackmon, 830 S.W.2d at 713; see Gallegos, 776 S.W.2d at 315. There is no evidence in this record that the cocaine was “tampered with or changed.” Therefore, the care and custody discrepancies were properly considered by the trial court as matters influencing the weight of the evidence, not governing its admissibility. Irvine, 857 S.W.2d at 925. Where the chain of custody of a substance is complete to the inside of the laboratory, any further objection to the chain of custody goes to the weight of evidence rather than to the admissibility. Medellin v. State, 617 S.W.2d 229, 232 (Tex.Crim.App.1981). Deputy Patterson testified at trial that once he returned to his office, he bagged the evidence, sealed it, with the proper documentation and dropped it into the overnight lock box. Once he deposited it, he had no further contact with the evidence. However, there was no testimony to the chain during trial. Medellin v. State, at 232. Thus, it does not appear that any error may have been preserved for an appeal. When reviewing the sufficiency of the evidence, the appellate court will look at all the evidence in the light most favorable to the verdict or judgment. Garrett v. State, 851 S.W.2d 853, 857 (Tex.Crim.App.1993); Houston v. State, 663 S.W.2d 455, 456 (Tex.Crim.App.1984). The conviction will be affirmed if review indicates that any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Ransom v. State, 789 S.W.2d 572, 577 (Tex.Crim.App.1989), cert. denied, 110 S.Ct. 3255 (1990). In conducting this review, the appellate court is not to re-evaluate the weight and credibility of the evidence, but act only to ensure the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App.1993); Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988). In Beck v. State, 651 S.W.2d 827, 829 (Tex.App.--Houston [1st Dist.] 1983, no pet.), the court held that proof of the beginning and end of the chain of custody will support the admission of narcotics into evidence. The court said that any gaps between the beginning and end of the chain go to the weight, rather than the admissibility, of the evidence. Id. The fact some person, other than the testifying chemist, handles the narcotics, affects only the weight of the evidence, not its admissibility. Id. Here, Texas does not require a showing of chain of custody for admission of evidence that is readily identifiable. Hammett v. State, 578 S.W.2d 699, 708 (Tex. Crim. App. 1979), cert. dismissed, 448 U.S. 725 (1980); Edlund v. State, 677 S.W.2d 204, 210 (Tex. App.-Houston [1st Dist.] 1984, no pet.). Texas requires a chain of custody showing when only scientific tests or analyses can distinguish the evidences relevant characteristics. Davis v. State, 831 S.W.2d 426, 443 (Tex. App.-Austin 1992, pet. refd); see Hammett, 578 S.W.2d at 708; Edlund, 677 S.W.2d at 210. The State has to prove chain of custody if: (1) the evidence is easily identifiable as a particular item, and (2) direct evidence shows that the same item was recovered at the scene. Warner v. State, 646 S.W.2d 478, 479 (Tex. App.-Houston [1st Dist.] 1982, no pet.). Unless a defendant raises an issue of tampering, any objection that the State did not establish chain of custody goes to the weight, not the admissibility of evidence. Bird v. State, 692 S.W.2d 65, 70 (Tex. Crim. App. 1985), cert. denied, 475 U.S. 1031 (1986); Dart v. State, 798 S.W.2d 379, 382 (Tex. App.-Fort Worth 1990, pet. refd). In Murray v. State, 864 S.W.2d 111, 124 (Tex.App.-Texarkana,1993), the court found that a sufficient chain of custody was established for admission of crack cocaine, even though intermediary in chain did not testify. The court found that the state proved the beginning and end of chain of custody. Id. The evidence showed that the envelope was mailed and received by the evidence lab, a return receipt card was received by police, and there was no evidence of tampering or deficiency in the chain. Id. Likewise here, there was a sufficient chain of custody established at trial. While the envelope with the cocaine may have been left in an overnight box, there was no evidence or testimony of tampering. Accordingly, the chain of custody should stand. CONCLUSION The guiding principle regarding a chain of custody question states that so long as the substance is traced into the laboratory, any breaks in the chain of custody will go only to the weight of the evidence, not its admissibility. Medellin v. State, 617 S.W.2d 229, 232 (Tex. Crim. App. [Panel Op.] 1981). If there is in fact a break in the chain of custody, even when the chain is completed into the laboratory, the evidence is still properly before the jury for consideration unless the appellant shows that the evidence was tampered with or altered. Montgomery v. State, 506 S.W.2d 623, 624 (Tex. Crim. App. 1974); Juhasz v. State, 827 S.W.2d 397 (Tex. App.-Corpus Christi 1992, pet. refd); Gallegos v. State, 776 S.W.2d 312, 315 (Tex. App.-Houston [14th Dist.] 1989, no pet.). The record shows that the state was able to prove the beginning and the end of the chain of custody. Leaving evidence in an overnight lock box does not render the testimony inadmissible, rather, a gap in the chain of custody goes to the weight of the evidence. Accordingly, an appeal will not lie unless there has been an allegation at trial of tampering which, pursuant to this fact pattern, there was not. In conclusion, based upon the foregoing, the chances of a successful are extremely unlikely. TABLE OF CASES Werner v. State, 711 S.W.2d 639, 643 (Tex.Crim.App. 1986) Gallegos v. State, 776 S.W.2d 312, 316 (Tex. App.--Houston [1st Dist.] 1989, no pet.) Ransonette v. State, 550 S.W.2d 36, 42 (Tex.Cr.App.1976) Jackson v. Virginia, 443 U.S. 307 (1979) Whitney v. California, 274 U.S. 357, 367(1927) Sinclair v. Turner, 447 F.2d 1158, 1161 (10th Cir.1971), cert. den. 405 U.S. 1048 (1972) In re Winship, 397 U.S. 358 (1970) Moore v. State, 821 S.W.2d 429, 431 (Tex. App.—Waco 1991, no pet.). Luna v. State, 493 S.W.2d 854, 856 (Tex. Crim. App. 1973) Salinas v. State, 507 S.W.2d 730, 731 (Tex. Crim. App. 1974) Kingsbury v. State, 14 S.W.3d 405, 407 (Tex. App.—Waco 2000, no pet.) Garner v. State, 939 S.W.2d 802, 805 (Tex. App.—Fort Worth 1997, pet. refd) In Blackmon v. State , 830 S.W.2d 711, 713 (Tex.App.-Houston [1st Dist.] 1992, pet. refd), Bird v. State, 692 S.W.2d 65, 70 (Tex.Crim.App.1985), cert. denied, 478 U.S. 1031 (1986); Dart v. State, 798 S.W.2d 379, 382 (Tex.App.-Fort Worth 1990, pet. refd). Jones v. State, 617 S.W.2d 704 (Tex.Cr.App.1981). Irvine v. State, 857 S.W.2d 920, 925 (Tex.App.-Houston [1st Dist.] 1993, pet. refd) Blackmon v. State,830 S.W.2d 711, 713 (Tex.App.-Houston [1st Dist.] 1989,pet. refd); Gallegos v. State, 776 S.W.2d 312, 315 (Tex.App.-Houston [1st Dist.] 1989, no pet.) Medellin v. State, 617 S.W.2d 229, 232 (Tex.Crim.App.1981). Garrett v. State, 851 S.W.2d 853, 857 (Tex.Crim.App.1993) Houston v. State, 663 S.W.2d 455, 456 (Tex.Crim.App.1984) Jackson v. Virginia, 443 U.S. 307, 319 (1979) Ransom v. State, 789 S.W.2d 572, 577 (Tex.Crim.App.1989), cert. denied, 110 S.Ct. 3255 (1990). Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App.1993) Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988) Beck v. State, 651 S.W.2d 827, 829 (Tex.App.--Houston [1st Dist.] 1983, no pet. Hammett v. State, 578 S.W.2d 699, 708 (Tex. Crim. App. 1979), cert. dismissed, 448 U.S. 725 (1980); Edlund v. State, 677 S.W.2d 204, 210 (Tex. App.-Houston [1st Dist.] 1984, no pet. Davis v. State, 831 S.W.2d 426, 443 (Tex. App.-Austin 1992, pet. refd Bird v. State, 692 S.W.2d 65, 70 (Tex. Crim. App. 1985), cert. denied, 475 U.S. 1031 (1986); Dart v. State, 798 S.W.2d 379, 382 (Tex. App.-Fort Worth 1990, pet. refd. Murray v. State, 864 S.W.2d 111, 124 (Tex.App.-Texarkana,1993) Montgomery v. State, 506 S.W.2d 623, 624 (Tex. Crim. App. 1974) Juhasz v. State, 827 S.W.2d 397 (Tex. App.-Corpus Christi 1992, pet. refd) Gallegos v. State, 776 S.W.2d 312, 315 (Tex. App.-Houston [14th Dist.] 1989, no pet.) Read More