Charlie Mack Jamison v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

K. MAX KOONCE, II, JUDGE

DIVISION IV

CHARLIE MACK JAMISON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-83

SEPTEMBER 27,2000

APPEAL FROM THE MISSISSIPPI COUNTY CIRCUIT COURT

CR-99-177, CR-94-241

HON. SAMUEL TURNER, JR.,

CIRCUIT JUDGE

AFFIRMED

This is an appeal from a conviction for possession of cocaine with the intent to deliver in violation of Ark. Code Ann. § 5-64-401 (Supp. 1999). Appellant contends that the trial court erred when it received into evidence substances not properly authenticated. We disagree.

On May 28, 1991, appellant was traveling on Highway 61 when he was pulled over by an Arkansas State Police highway patrol officer, John Overman. Overman was traveling in the southbound lane, and appellant was traveling in the northbound lane with his high-beam lights on. Overman testified that he attempted to get appellant to put on his low beams by flashing his high beams. He tried this three times, but appellant did not respond. Overman then initiated a traffic stop. Overman testified that as he got out of his car, appellant got out of his car and began waving his hands indicating that he knew why Overman pulled him over. Overman stated that appellant was almost in a panic and repeatedly said that he knew that he was stopped because he had a headlight out. Appellant paced back and forth from the driver's door of his car to the front of the car. Overman approached appellant's vehicle and asked to see his license. Overman allowed appellant to retrieve his license from his car. Overman testified that appellant began reaching for things in the car but would not actually pick anything up. Appellant reached into the glove box, which was missing. Appellant then told Overman that he had been working on the car for someone and removed the glove box that contained his license. Overman asked appellant to go to his patrol car. Overman told appellant he was going to pat him down. When Overman reached for appellant's waist, appellant spun away from him and started screaming something that Overman could not understand. Appellant shoved his hands into his pockets and began running backwards towards his car. Overman ordered that appellant put his hands up. Overman was on the driver's side of appellant's vehicle, and appellant ducked behind his trunk, popping up to see where Overman was located. Appellant took small steps towards the front of the car until he reached the passenger side door.

Overman testified that he then saw appellant drop something in a female passenger's lap. Appellant screamed as he stood up and threw his arm back and then raised both hands over his head. Overman testified that after appellant had his hands up, he ordered the female passenger to put up her hands so he could see what appellant dropped. All Overman could see was a few dollars and a watch. Appellant was placed into the custody of Officer Barney, a Blytheville police officer who arrived at the scene. Overman went back to appellant's car to keep an eye on the female passenger and found a small plastic bag of individually-wrapped off-white chunks that appeared to be crack cocaine about six feet from the vehicle. While this took place, appellant became violently ill beside Overman's car and was placed in Barney's car. Overman and Barney then conducted another search of the area directly behind the vehicle, which happened to be a cemetery. Overman testified that Barney found a medicine bottle approximately eight to twelve feet from appellant's vehicle. Overman testified that he picked the medicine bottle up off the ground. He stated that the bottlecontained individually-wrapped off-white chunks of something. Overman identified the plastic bag marked as Exhibit 3 and medicine bottle marked as Exhibit 2 as being the items he found at the scene. Overman testified that he turned the plastic bag and pill bottle over the next day to Bobby Stabbs, a criminal investigator with the Arkansas State Police. The transfer form that indicated the items had been transferred contained the following description:

Med-bottle containing 6 off white pieces of a [sic] off white substance believed to be crack cocaine. Clear plastic baggie containing 2 off white pieces of a [sic] off white substance believed to be crack cocaine.

Attached to the envelope containing the items was a Blytheville Police Department property receipt form signed by Overman and Stabbs that described the items as eight individually wrapped rocks of cocaine, six in a prescription bottle and two in a plastic baggie.

Officer Stabbs testified that he received items from Overman on the morning of May 28. Stabbs wrote the items on a submission sheet and sent them to the state crime lab. The submission sheet described the evidence submitted to the state crime lab as "8 off-white individually wrapped substance [sic] believed to be crack cocaine." Stabbs testified that the items he received were a plastic bottle containing off-white rock-like substances and a plastic bag containing several rock-like substances. Stabbs also testified that he received those same items back from the state crime lab.

Officer Barney also testified at trial. He stated that when he arrived at the scene, Overman told him that appellant had thrown something after he was stopped. Barney testified that he assisted Overman in searching the immediate area with a flashlight. Barney testified that he found a prescription medicine bottle lying in the grass. He testified that Overman took a picture of the medicine bottle and then picked it up. He testified that he inspected the bottle and believed it to contain crack cocaine. Barney also stated that he was there when the plastic bag was found.

The State also called Jeffrey Bruce, a forensic drug chemist with the Arkansas State CrimeLaboratory, to testify. Bruce testified that he received a submission sheet from Stabbs with a sealed yellow envelope containing a plastic bag and a pharmacy bottle. He testified that the plastic bag contained two smaller tied triangular plastic bags that contained a white powder. The pharmacy bottle contained six off-white, rock-like substances. Bruce tested the powder contained in the smaller plastic bags, finding the contents to be .2186 grams of cocaine hydrochloride. The State moved to introduce Exhibit 3. The appellant objected to its introduction on the ground that the evidence was not properly authenticated. The appellant argued that a discrepancy existed between what the chemist tested and what the officer testified was recovered. The trial court admitted Exhibit 3 over the appellant's objection. Bruce also testified that he tested the items contained in the pharmacy bottle. He said that the bottle contained six small, tied packets containing an off-white, rock-like substance. The packets contained .9783 grams of cocaine base, which is commonly referred to as crack cocaine. The State moved to introduce Exhibit 2, and appellant again objected on the ground of improper authentication. The court overruled the objection.

A jury found appellant guilty of possession of cocaine with the intent to deliver and sentenced him to serve fifteen years in the Arkansas Department of Correction and fined him $6,500. On appeal, appellant contends the trial court erred when it received the pill bottle (Exhibit 2) and plastic bag (Exhibit 3) into evidence because they were not properly authenticated.

The purpose of establishing the chain of custody is to prevent the introduction of evidence that has been tampered with or is not authentic. Crisco v. State, 328 Ark. 388, 943 S.W.2d 582 (1997). The trial court must be satisfied within a reasonable probability that the evidence has not been tampered with, but it is not necessary for the State to eliminate every possibility of tampering. Id. Minor uncertainties in the proof of chain of custody are matters to be argued by counsel andweighed by the jury, but they do not render the evidence inadmissible as a matter of law. Id. We have stated that the proof of the chain of custody for interchangeable items such as drugs or blood needs to be more conclusive. Id. A decision regarding the admission of evidence is a matter that lies within the discretion of the trial court, and will not be reversed absent an abuse of discretion. Fowler v. State, 339 Ark. 207, 5 S.W.3d 10 (1999), cert denied, ___ U.S. ___, 120 S. Ct. 1558 (2000) . We will not reverse absent a showing of prejudice. Huddleston v. State, 339 Ark. 266, 5 S.W.3d 46 (1999). The standard of review is whether the trial court abused its discretion in finding that in reasonable probability the integrity of the evidence was not impaired. Williams v. State, 23 Ark. App. 121, 743 S.W.2d 402 (1998).

Appellant contends that Crisco is directly on point with the present case. In Crisco, the supreme court reversed a conviction for possession of methamphetamine where the arresting officer described the seized substance as an off-white powder, and the forensic chemist described it as a tan, rock-like substance. The chemist further testified that he would not have described the substance as an off-white powder and that it would not have changed colors. The supreme court stated:

In the case before us, Crisco hinges his contention of lack of authenticity on the fact that Officer Hanes's description of the drugs differed significantly from that of the chemist, Michael Stage, in color and consistency. In fact, the chemist admitted that he would not have described the substance as off-white powder. Crisco's point has merit. True, there was no obvious break in the chain of custody of the envelope containing the plastic bag or conclusive proof that any tampering transpired. Yet, the marked difference in the description of the substance by Officer Hanes and the chemist leads us to the conclusion that there is a significant possibility that the evidence tested was not the same as that purchased by Officer Hanes. See Munnerlyn v. State, supra. This is especially so when we consider that the drug involved is a readily interchangeable substance. [Lee v. State, 326 Ark. 229, 931 S.W.2d 433 (1996)] Under these circumstances, where the substance at issue has been described differently by the undercover officer and the chemist, we believe the State was required to do more to establish the authenticity of the drug tested than merely trace the route of the envelope containing the substance.

We hold that the trial court abused its discretion by receiving a substance intoevidence that was not properly authenticated.

328 Ark. at 392, 582 S.W.2d at 584-585.

Similar to Crisco, appellant does not argue that the items were tampered with or that the chain of custody was broken. Appellant's argument focuses on the discrepancies between the officers' description of the substance and the chemist's description. Crisco is distinguishable from the present case in that the difference in the description varied in form and appearance. Here, the items were consistently described as off-white. The discrepancy is that the two items contained in the plastic bag (Exhibit 3) were described as off-white, rock-like substances by Overman and Stabbs, whereas the drug chemist described the substance as an off-white powder. In Crisco, the items were not sent to the crime lab for a month, whereas the items in the present case were sent to the state crime lab the next day. Even if the trial court erred by receiving the plastic bag into evidence because of the discrepancy, the error was harmless because there was no discrepancy in the description of the items contained in the pill bottle.

The officers and the chemist all described the items contained in the pill bottle as six individually wrapped, off-white, rock-like substances believed to be crack cocaine. The chemist determined the items to be .9783 grams of crack cocaine. The jury was instructed to consider the amount of the drugs along with all the other facts and circumstances of the case in deciding whether appellant possessed a controlled substance with the intent to deliver. Officer Stabbs testified that individually wrapped packages of drugs such as the ones in the present case are usually the type recovered from people who sell drugs on the street. Officer Overman testified as to appellant's behavior when he was arrested. It is within the province of the jury to weigh minor discrepancies in the evidence and assess the credibility of the witnesses.

Affirmed.

Bird, J., agrees.

Roaf, J., concurs.

Andree Layton Roaf, Judge, concurring. I concur in the affirmance of this conviction, but on the basis that, if any error occurred in the admission of the item in which there was a discrepancy between the officer's description and that of the crime lab chemist, i.e., rock-like substance versus powder, it was harmless error in this case. There was no discrepancy in the two descriptions of the six rock-like substances found in the pill bottle, and this substance was introduced into evidence as a separate exhibit. Although the weight of the material in the pill bottle was only .9783 grams, Jamison does not challenge his conviction for possession with intent to deliver based on this weight being less than the presumptive amount of one gram. See Ark. Code Ann, § 5-64-401(d) (Repl. 1997).

Consequently, I would also affirm.