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THE COURT OF APPEALS OF THE STATE OF ALASKA
CEOLA HOUSTON-HULT, )
) Court of Appeals No. A-3920
Appellant, ) Trial Court No. 3AN-S90-4804CR
)
v. )
) O P
I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1270 - December 31, 1992]
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Rene J. Gonzalez, Judge.
Appearances: Margi Mock, Assistant Public
Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Shelley
K. Chaffin, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Ceola Houston-Hult was convicted by a jury of five
counts of misconduct involving a controlled substance in the
second degree (sale of dilaudid) and three counts of misconduct
involving a controlled substance in the third degree (sale of
cocaine). Houston-Hult appeals, contending that Superior Court
Judge Rene J. Gonzalez erred in denying her motion for a judgment
of acquittal. We affirm.
Houston-Hult's convictions stem from her involvement in
a series of controlled drug sales to an undercover informant who
worked under the supervision of Investigator Wilber Earl Hooks of
the Anchorage Police Department (APD). At trial, Hooks testified
concerning his supervision of the informant during the trans-
actions, the manner in which he took custody of the drugs from
the informant, and the steps he took in submitting the drugs to
the evidence room, which forwarded them to the Alaska State Crime
Detection Laboratory in Anchorage for testing.
Because Houston-Hult's sales occurred on different
occasions, the drugs she was alleged to have sold were sent to
the crime lab on different days and were eventually tested by
three different laboratory technicians. The three technicians
testified at Houston-Hult's trial about their analysis of the
substances submitted to them, each identifying the substances as
either dilaudid or cocaine. Houston-Hult offered no
contemporaneous objection to this testimony.
The state did not seek to admit into evidence the
controlled substances that Houston-Hult was charged with selling,
electing to rely on the testimony of the three lab technicians to
establish that the substances were cocaine and dilaudid, as
alleged. After the close of evidence at trial, Houston-Hult
moved to strike the testimony of the lab technicians and
requested a judgment of acquittal, contending that the state had
failed to present a sufficient chain of custody to establish that
the substances tested by the technicians were the same substances
that Hooks had obtained from the informant after each
transaction. Judge Gonzalez denied both motions, finding that
Houston-Hult had failed to preserve the chain-of-custody issue by
neglecting to make a contemporaneous objection to the lab
technicians' testimony identifying the substances they tested.
On appeal, Houston-Hult contends that Judge Gonzalez
erred in failing to grant her motion for a judgment of acquittal,
again arguing that the evidence as to chain of custody was
insufficient. To decide whether the trial court has properly
denied a motion for judgment of acquittal based on insufficiency
of evidence, this court must consider the evidence presented at
trial and all of the inferences arising therefrom in the light
most favorable to the state. Viewing the evidence in this
manner, we must determine whether a fair-minded juror exercising
reasonable judgment could conclude that the state met its burden
of proving guilt beyond a reasonable doubt. Dorman v. State, 622
P.2d 448, 453 (Alaska 1981); Deal v. State, 657 P.2d 404, 405
(Alaska App. 1983).
In the present case, the trial testimony established
that Houston-Hult repeatedly sold substances she represented to
be dilaudid and cocaine to a police informant, who immediately
turned the substances over to Hooks. The informant testified at
trial, describing the various transactions. Tape recordings of
some of the transactions were also admitted.
Hooks testified that, after each sale, he placed the
substances he took from the informant into an evidence bag,
assigned a case number to the evidence, and deposited it into an
APD evidence locker, together with a request for testing by the
state crime lab. According to Hooks, once evidence is secured in
an APD evidence locker, the only people who have access to it are
APD evidence technicians, whose job it is to personally deliver
the evidence to the crime lab.
The three technicians from the state crime lab
described the normal procedures followed by the lab. According
to their testimony, all substances brought to the lab by APD for
testing are personally delivered to the crime lab's evidence
room, either directly by the officers who seized the substances
or by evidence custodians. The evidence room is a locked area,
equipped with an alarm; the only people who have access to it are
three evidence custodians, who have all been subjected to
background checks for security purposes. All substances
delivered to the evidence room are received by one of the three
evidence custodians employed by the lab.
Crime-lab technicians later receive assignments to test
substances that have been delivered to the evidence room. Upon
receiving an assignment in a given case, the technician goes to
the evidence room, obtains the evidence in the assigned case from
one of the evidence custodians, affixes a crime lab number to it,
and proceeds to conduct whatever tests are appropriate.
With reference to the evidence submitted for testing in
Houston-Hult's case, the three technicians testified that, at
various times, they received evidence with APD numbers
corresponding to those testified to by Investigator Hooks.
Chemical analysis confirmed each item of evidence to be the
substance Houston-Hult had represented it to be at the time of
the corresponding sale - either dilaudid or cocaine.1
We conclude that the totality of this evidence, when
viewed in the light most favorable to the state, is sufficient to
allow a reasonable juror to find that the state met its burden of
proving Houston-Hult's guilt.
Houston-Hult nevertheless urges us to hold that the
evidence must be deemed insufficient because, in her view, the
state failed to prove a chain of custody sufficient to meet the
"reasonable certainty" standard contained in A.R.E. 901(a):
(a) Whenever the prosecution in a crimi
nal trial offers (1) real evidence which is
of such a nature as not to be readily
identifiable, or as to be susceptible to
adulteration, contamination, modification,
tampering, or other changes in form
attributable to accident, carelessness, error
or fraud, or (2) testimony describing real
evidence of the type set forth in (1) if the
information on which the description is based
was acquired while the evidence was in the
custody or control of the prosecution, the
prosecution must first demonstrate as a
matter of reasonable certainty that the
evidence is at the time of trial or was at
the time it was observed properly identified
and free of the possible taints identified by
this paragraph.
Relying on this rule, Houston-Hult criticizes the
prosecution for failing to call all of the witnesses who handled
the drugs in her case prior to testing and for failing to
eliminate all possibility of mishandling. Houston-Hult argues:
[N]o one testified about who specifically
handled these substances between when Hooks
placed them in the evidence locker and when
the criminalists received some drugs to
analyze. The absence of any such testimony
left a crucial gap in the chain of custody,
making it plausible that the drugs analyzed
at the lab were not the same substances that
Hooks submitted for analysis. The state's
chain of custody testimony did not rule out
the possibility that the samples were
tampered with after Hooks placed them in the
evidence locker or the possibility that the
tags got mixed up . . . .
We find Houston-Hult's argument unpersuasive for three reasons.
First, we note that A.R.E. 901(a) is meant to provide
guidance for admission of evidence; the rule does not purport to
set standards for gauging the sufficiency of evidence that has
been admitted. On appeal Houston-Hult has elected not to
challenge the trial court's denial of her motion to strike the
testimony of the three crime-lab technicians who identified the
drugs that Hooks submitted for testing; we must thus deem their
testimony properly admitted for purposes of determining the
sufficiency of the evidence.2
Second, we agree with the trial court's finding that
Houston-Hult failed to make a timely chain-of-custody objection
at trial. At trial, Houston-Hult's counsel claimed that he did
not voice a contemporaneous objection to the testimony offered by
the state's crime-lab technicians because he assumed that the
state would later call other witnesses to shore up its case on
the chain-of-custody issue. Judge Gonzalez nevertheless found
that the absence of contemporaneous chain-of-custody objections
precluded Houston-Hult from later raising the issue in the form
of a motion to strike and a motion for a judgment of acquittal.
On appeal, Houston-Hult argues that Judge Gonzalez was
unduly harsh in requiring a contemporaneous objection. Houston-
Hult contends that, when the lab technicians testified, her trial
counsel could justifiably have expected that the state would
formally offer the disputed drugs into evidence at a later point
in the trial and would, at that time, present further chain-of-
custody evidence to support its admission. Claiming surprise at
the state's apparently last-minute decision to forego admission
of the drugs, Houston-Hult argues that she should have been
afforded the opportunity to raise the chain-of-custody issue in
the manner that she did.
Houston-Hult's argument against waiver might have
considerable merit had she asserted her chain-of-custody
objection at the earliest reasonable opportunity after learning
of the state's decision not to offer the disputed drugs into
evidence. But she did not. The record reveals that, when the
state rested its case-in-chief without attempting to admit the
drugs allegedly sold by Houston-Hult, the trial judge, evidently
concerned at the possibility of an oversight, inquired as to
whether the state wanted the drugs admitted. The state then
confirmed that it would not formally seek admission of the drugs.
Houston-Hult's trial counsel raised no objection to the
state's decision at that time,3 nor did counsel then move to
strike the testimony of the lab technicians or request entry of a
judgment of acquittal. Instead, counsel expressly reserved,
until the end of trial, Houston-Hult's right to move for a
judgment of acquittal. Counsel then proceeded to call the first
defense witness.
Not until the following day, after announcing that the
defense had no further witnesses, did counsel request acquittal
based on the state's failure to prove chain of custody. Under
these circumstances, we conclude that Judge Gonzalez did not
abuse his discretion in finding that Houston-Hult had failed to
preserve the issue.
Third, even if Houston-Hult had preserved the chain-of-
custody issue below and had properly raised it on appeal, we
would be inclined to find that the state's evidence at trial was
at least minimally adequate to meet the requirements of A.R.E.
901(a). Contrary to the argument advanced by Houston-Hult,
A.R.E. 901(a) does not require the state, for purposes of
establishing a chain of custody, to call as witnesses all persons
who exercised custody over a controlled substance; nor does
A.R.E. 901(a) require the state to rule out all possibility of
tampering.
The commentary to A.R.E. 901(a) notes that the rule was
not meant to "hold the Government to an onerous standard of
proof, but merely to the same reasonable requirement that it is
used to fulfilling." Alaska Rules of Court, Evidence Rules
Commentary, A.R.E. 901(a) at 497 (ed., 1992-93). In particular,
the commentary cites with approval the Alaska Supreme Court's
decision in Wright v. State, 501 P.2d 1360, 1372 (Alaska 1972).
Commentary at 497. In Wright, a case involving a chain-of-
custody issue quite similar to Houston-Hult's, the supreme court
upheld admission of the drugs allegedly sold by the defendant,
stating in relevant part:
The rule is well settled that in setting
up a chain of evidence, the prosecution need
not call upon every person who had an opportu
nity to come in contact with the evidence
sought to be admitted. Similarly, every
conceivable possibility of tampering need not
be eliminated. As the court held in Gallego
v. United States[, 276 F.2d 914, 917 (9th
Cir. 1960)]:
Where no evidence indicating other-
wise is produced, the presumption
of regularity supports the official
acts of public officers, and courts
presume that they have properly
discharged their official duties.
Id. at 1372 (footnote omitted). See also Toney v. State, 833
P.2d 15, 19 (Alaska App. 1992).
Here, as in Wright, there is no evidence suggesting any
irregularity in the handling of the disputed evidence. Although
the state could have made a more thorough chain-of-custody
showing, and although the trial court, upon a timely defense
request, would certainly have had discretion to demand a more
substantial showing, we are aware of no reason why the
presumption of regularity should not apply here, and see no basis
for distinguishing this case from Wright.
In summary, we conclude that the superior court did not
err in denying Houston-Hult's motion for judgment of acquittal.
The judgment is AFFIRMED.
_______________________________
1. The technicians also testified that they were able to
visually identify purported dilaudid tablets as being consistent
in markings and size with commercially-produced dilaudid tablets.
2. Houston-Hult's failure to raise as a separate claim
the issue of the trial court's denial of her motion to strike is
not a mere technicality. An appellate claim of insufficient
evidence requires the reviewing court to evaluate the totality of
the evidence before the jury. Thus, the court is in effect
placed in the position of presuming that all of the evidence
actually before the jury was properly admitted. Allowing the
admissibility of evidence to be challenged within the framework
of an appellate claim of insufficient evidence would have serious
procedural implications.
For example, assuming Houston-Hult had properly
preserved the issue of the admissibility of the lab technicians
testimony by raising a separate point on appeal challenging the
trial court's denial of her motion to strike, and assuming
further that Houston-Hult had prevailed on the issue, the normal
remedy would have been a reversal, coupled with a remand for
retrial. Upon retrial, the state would have been afforded the
opportunity to present a more complete chain of custody. In
contrast, if we were to entertain and decide Houston-Hult's chain-
of-custody argument in the context of the point on appeal she now
raises - the sufficiency of evidence presented against her at
trial - then the mandatory remedy, assuming her argument
prevailed, would be a reversal with instructions to the trial
court to enter a judgment of acquittal. The state would be
foreclosed from seeking a retrial.
We see no justification for allowing litigants to
parlay garden-variety evidentiary errors into outright acquittals
by tactically bypassing established procedures for asserting
claims of error on appeal. We do not suggest that, in the
present case, Houston-Hult deliberately refrained from
challenging the trial court's denial of her motion to strike in
order to gain a tactical advantage. Our only point is that the
need to discourage such tactical maneuvering precludes
overlooking, as a mere technicality, Houston-Hult's failure to
separately challenge the trial court's denial of her motion to
strike.
3. Houston-Hult relies on G.E.G. v. State, 417 So.2d 975
(Fla. 1982), for the proposition that, in controlled substance
prosecutions, the state should be required to introduce the
substance into evidence when it is available. Houston-Hult urges
us to adopt this position. We need not consider the issue,
however, since Houston-Hult has failed to preserve it. As the
Florida Supreme Court itself recognized, the requirement of
introducing the controlled substance should apply, if at all,
only when a defendant objects to the state's nonintroduction of
the substance. Id. at 977. Here, Houston-Hult failed to object
to the state's decision to forego introducing the drugs that she
allegedly sold. Accordingly, even if the rule in C.E.G. were
adopted in Alaska, it would not apply to Houston-Hult's case.
