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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
LAMAR PATTERSON, )
) Court of Appeals No. A-6617
Appellant, ) Trial Court No. 3AN-96-6184 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1604 - October 2, 1998]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Eric T. Sanders, Judge.
Appearances: Maria Bahr, Assistant Public
Defender, and Barbara K. Brink, Public Defender, Anchorage, for
Appellant. Marcelle K. McDannel, Assistant Attorney General, Office
of Special Prosecutions and Appeals, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
Lamar Patterson was convicted of fourth-degree misconduct
involving a controlled substance possession of cocaine. [Fn. 1]
On appeal, Patterson contends that the State failed to establish a
proper chain of custody for the cocaine admitted into evidence
against him at his trial. In other words, Patterson contends that
the State failed to establish that the cocaine introduced into
evidence at Patterson's trial was in fact the same substance that
was seized from him at the time of his arrest. As explained below,
we conclude that the State did establish the necessary chain of
custody, and we therefore affirm Patterson's conviction.
(In the recitation of facts that follows, we view the
evidence in the light most favorable to upholding the superior
court's ruling. [Fn. 2])
On August 10, 1996, Anchorage police officers executed a
search warrant at Patterson's apartment. The warrant authorized a
search of both the premises and Patterson's person. Patterson
arrived at the apartment while the search was occurring.
Officer Kenneth Welch asked Patterson whether he had any
drugs on him. Patterson responded, "I have a little bit on me."
Patterson then reached into his waistband and pulled out a small
black container with "Marlboro" printed across it. The container
held two small yellowish, rock-like substances. Based on his
experience with illicit drugs, Welch believed that the two yellowish
rocks were crack cocaine.
Welch seized the two rocks and placed them into a special
evidence envelope. Welch then sealed both ends of the envelope with
special evidence tape a tamper-proof tape that can not be removed
without destroying it. Having taped the evidence envelope shut with
this tape, Welch wrote his initials and the date of the seizure
across the tape at both ends of the envelope. Upon leaving
Patterson's apartment, Welch took the evidence envelope to the
Anchorage Police Department's evidence storage facility.
The police evidence storage facility has an anteroom where
officers can deposit evidence into storage bins. Welch placed the
evidence envelope into a storage bin and turned the lock. By doing
this, he shut himself off from further access to the evidence
envelope because, once a bin lock has been turned, the bin can not
be opened again from the anteroom. Locked bins can be opened only
from the inner area of the evidence storage facility the working
area of the police department's property and evidence custodians.
Welch did not have access to this inner area of the
storage facility. In fact, the entire storage facility (including
the anteroom) is locked, protected by an alarm system, and
accessible only by holders of a special access card. Under police
department procedures, had Welch wanted to retrieve the evidence,
he would have had to request access to the evidence, and he would
have had to furnish a valid reason for retrieving the evidence.
In preparing Patterson's case for prosecution, Welch asked
the Department of Public Safety's crime laboratory to test the
substances he had seized from Patterson. According to the testimony
of Everett Clary, a chemist at the state crime laboratory, the
entire laboratory facility is secure. Only regular laboratory
personnel are allowed free access to the facility. Any visitors to
the lab, including police officers, are accompanied at all times by
a laboratory employee for the duration of their visit.
All evidence submitted to the crime lab for testing by the
Anchorage Police Department is hand-carried to the lab. The
Anchorage police have adopted the policy of placing each evidence
envelope in a heat-sealed pouch. Each evidence container is
supposed to bear an identifying number; crime lab personnel check
this number. Crime lab personnel also check to see that the
evidence envelope is sealed and the tamper-proof tape is still
intact; if not, the laboratory will not accept the evidence. Then
both the laboratory custodian (who is receiving the evidence) and
the police custodian (who is delivering the evidence) record their
signatures to acknowledge the transfer of the evidence.
Within the state crime lab, every piece of evidence is
given its own identification number. A crime lab evidence custodian
takes custody of all evidence, and all evidence is kept in a locked
area protected by an alarm system. When one of the crime lab
analysts is ready to test the evidence, he or she must ask the
evidence custodian to release it. The custodian then signs the
evidence out to the analyst.
To perform the analysis, the crime lab analyst first
breaks the seal on the outer plastic pouch. The analyst then
removes the evidence envelope and cuts into it not by tearing the
special tape or by opening one of the sealed seams, but rather by
cutting through the middle of the envelope. This is deliberate:
the purpose of this procedure is to ensure that the analyst's
opening and resealing of the evidence envelope will be obvious. The
analyst performs the requested tests, and then the analyst reseals
the envelope and the plastic pouch.
Each analyst's table has an attachment that can be pulled
down and locked, blocking access to all of the drawers. If an
analyst is called away while in the middle of testing evidence, the
analyst pulls down this attachment, thus securing the evidence.
At Patterson's trial, Welch was handed an evidence
envelope that ostensibly contained the evidence seized from
Patterson. Welch identified this envelope as the same one he had
used to secure the black container and the two rocks inside it: the
envelope bore Welch's initials, a notation of the date the evidence
was seized, and a unique, pre-printed number a number that Welch
had transcribed onto his property and evidence report at the scene.
Welch further observed that both strips of tamper-proof tape were
still intact, and these strips still bore the notations he had made
on them.
Examining the envelope at trial, Welch noted that the
envelope was sealed in an outer plastic pouch. Welch also noted
that the envelope appeared to have been opened in one place since
the time he had sealed it. Other than this single intrusion into
the envelope, the condition of the envelope was just the same as it
was when Welch sealed it. Welch testified that the appearance of
the evidence envelope the way in which it had been opened and
resealed was consistent with the way other evidence envelopes
looked after they had been sent to the crime lab for testing.
Based upon this testimony, the State sought admission of
the rock-like substances. The defense objected that the State had
not identified the officer who transported the evidence to the crime
lab, nor had the State identified the laboratory technician who took
receipt of the evidence. Despite these objections, the trial judge
ruled that the State had established a sufficient foundation to
admit the evidence against Patterson.
Following this ruling, Everett Clary opened the evidence
bag. Inside the bag were the two rocks. Also inside the bag was
a set of initials; Clary identified those initials as his own.
Clary then testified that he had tested the two rocks inside the
bag, and that the rocks were cocaine.
On appeal, Patterson renews his objection that the State
failed to establish that the two rocks of cocaine introduced at
trial were in fact the same substances seized from Patterson at the
time of his arrest. This question is governed by Alaska Evidence
Rule 901(a).
Evidence Rule 901(a) states that if the government offers
physical evidence (or testimony describing physical evidence) in a
criminal trial, and if that physical evidence "is of such a nature
as not to be readily identifiable", or if the physical evidence is
"susceptible to adulteration, contamination, modification,
tampering, or other changes in form attributable to accident,
carelessness, error[,] or fraud", then the government must, as
foundational matter, "demonstrate [to a] reasonable certainty that
the evidence is ... properly identified and free of the possible
taints" identified in the rule.
For purposes of Patterson's case a prosecution for
possession of drugs Evidence Rule 901(a) means that the government
must prove, to a reasonable certainty, (1) that the substance
identified by laboratory testing as a controlled substance is in
fact the same substance that was earlier in the defendant's
possession, and (2) that the substance was not altered before it was
tested. [Fn. 3] However, the rule that the government must
establish the authenticity of the evidence to a "reasonable
certainty" does not mean that the State must conclusively rule out
all possibility of tampering, nor does it mean that the State must
produce any and all persons who had contact with the evidence. [Fn.
4] For example, in Houston-Hult v. State this court rejected a
challenge to the State's chain of custody even though the State did
not present the testimony of the employee who carried the evidence
from the police department to the crime lab. [Fn. 5]
Patterson points out that the State presented no evidence
to identify the police department employee who carried the evidence
envelope to the crime lab. Patterson also notes that the State
failed to identify the police department employee who placed Welch's
evidence envelope in the heat-sealed outer pouch. Such evidence was
not necessary. The State presented testimony describing the
procedures adopted by both the police department and the crime lab
to ensure the integrity of physical evidence, and the State also
presented testimony that, viewed in the light most favorable to the
State, demonstrated to a reasonable certainty that these procedures
were followed. We thus conclude that the trial judge did not abuse
his discretion when he overruled Patterson's objections and admitted
the physical evidence. [Fn. 6]
Patterson raises a second contention on appeal: that he
should have been granted a judgement of acquittal. Patterson argues
that the State failed to present convincing evidence that the
cocaine belonged to him. Our conclusion that the cocaine was
admissible disposes of this argument. We have found that, viewed
in the light most favorable to the State, the evidence demonstrated
to a reasonable certainty that the cocaine introduced at trial was,
in fact, seized from Patterson at the time of his arrest. Of
course, the jury was not bound to believe the State's evidence. But
if the State's evidence was believed, that evidence was sufficient
to convince reasonable people that the State had proved its case
beyond a reasonable doubt. [Fn. 7] Thus, the trial judge correctly
denied Patterson's motion for judgement of acquittal.
The judgement of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
AS 11.71.040(a)(3)(A).
Footnote 2:
See Long v. State, 772 P.2d 1099, 1101 (Alaska App. 1989).
Footnote 3:
See Fox v. State, 908 P.2d 1053, 1060 (Alaska App. 1995).
Footnote 4:
Fox, 908 P.2d at 1060; Wright v. State, 501 P.2d 1360, 1372
(Alaska 1972); Houston-Hult v. State, 843 P.2d 1262, 1266 (Alaska
App. 1992).
Footnote 5:
843 P.2d at 1264.
Footnote 6:
See Eben v. State, 599 P.2d 700, 710 (Alaska 1979) (rulings
under Evidence Rule 901 are reviewed for abuse of discretion).
Footnote 7:
See Dorman v. State, 622 P.2d 448, 453 (Alaska 1981);
Silvernail v. State, 777 P.2d 1169, 1172 (Alaska App. 1989).
