LESTER SMOTHERS v. GEORGE MILLION
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RENDERED:
September 28, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002089-MR
LESTER SMOTHERS
APPELLANT
APPEAL FROM MORGAN CIRCUIT COURT
HONORABLE SAMUEL C. LONG, JUDGE
ACTION NO. 00-CI-00149
v.
GEORGE MILLION
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, JOHNSON AND McANULTY, JUDGES.
JOHNSON, JUDGE: Lester Smothers, pro se, has appealed from an
order of the Morgan Circuit Court entered on August 2, 2000,
which dismissed his petition for declaration of rights1
concerning a prison disciplinary matter.
Having concluded that
Smothers has received due process of law in the administration of
the prison discipline, we affirm.
1
Kentucky Revised Statutes 418.040.
On March 14, 2000, Smothers, while imprisoned at the
Eastern Kentucky Correctional Complex, was required to submit a
urine sample for the purposes of a drug test.
Smothers’ urine
sample was sent for analysis that same day to a private company,
Lab Corp.
Test results reported to the prison on March 21, 2000,
showed positive results for “THC metabolites,” or marijuana.
A
disciplinary report charged Smothers with the “unauthorized use
of drugs or intoxicants.”
On April 3, 2000, a prison adjustment
officer found Smothers guilty as charged.
Smothers was required
to forfeit 60 days of good time credit and to serve 45 days in
disciplinary segregation.
the prison warden.
Smothers appealed these findings to
On April 20, 2000, the warden concurred with
the adjustment committee’s findings and actions.
On June 13,
2000, Smothers filed a petition for declaration of rights in the
Morgan Circuit Court.
On August 2, 2000, the circuit court
granted the warden’s motion to dismiss the petition.
This appeal
followed.
Smothers claims his due process rights were violated
because (1) the drug testing procedures failed to comply with the
required chain-of-custody procedures; (2) the prison adjustment
officer conducted an unauthorized investigation into an incident
prior to the hearing; and (3) prison personnel presented perjured
As this Court noted in Gilhaus v. Wilson,2
testimony.
The United States Supreme Court has held
that prisoners retain rights under the Due
2
Ky.App., 734 S.W.2d 808, 809 (1987).
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Process Clause, subject to restrictions
imposed by the nature of their lawful
imprisonment. Wolff v. McDonnell, 418 U.S.
539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).
However, the full panoply of rights due a
defendant in a criminal prosecution is not
applicable in a prison disciplinary
proceeding. Id. The inmate’s interest in
the procedural protections required by due
process must be balanced against the
legitimate institutional needs of assuring
safety and control of inmates, avoiding
burdensome administrative requirements and
preserving the disciplinary process as a
means of rehabilitation. Superintendent,
Massachusetts Correctional Institution v.
Hill, 472 U.S. 445, 105 S.Ct. 2768, 86
L.Ed.2d 356 (1985); Wolff, supra.
At the time Smothers’ urine sample was taken, the
Department of Corrections’ Policy and Procedure 15.8(VI)(c),
regulating chain of custody, provided as follows:
1.
A Chain of Custody form shall be
properly filled out by the staff who
collected the urine sample.
2.
Each time the sample is released, the
person releasing the sample shall
legibly sign, not initial, the Chain of
Custody indicating date and time of
release.
3.
Each time the sample is received, the
person receiving the sample shall:
a.
b.
indicate date and time of receipt;
and
c.
4.
sign the Chain of Custody;
whether or not the seal is intact.
Each time the sample is received or
released from an inanimate object
including a locked security box, mail
pouch or mail room, the form shall be
signed on behalf of the object below the
name of the object.
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5.
An institution that utilizes any outside
delivery agent to deliver a urine sample
to the laboratory shall ensure that the
sample is released to the delivery agent
by signature of staff packaging the
sample.
6.
The laboratory personnel conducting the
testing shall sign and date the Chain of
Custody certifying:
a.
that the seal is intact; and
b.
that the name and number on or in
the specimen bottle matches the
name and number on the Chain of
Custody form.
Smothers and the Department of Corrections both rely
upon Byerly v. Ashley,3 where this Court reversed a disciplinary
action against an inmate because the chain-of-custody procedure
failed to meet due process requirements.
In Byerly, this Court
stated that the chain-of-custody “is for the purpose of
establishing that the sample tested is the same as that taken
from a particular individual and that, at the time it is tested,
the sample is in the same condition as when taken free of
tampering.”4
In that case, the chain-of-custody procedure was
followed “only as far as showing the sample being delivered by a
correctional officer to the laboratory courier.
No one at the
laboratory made an entry on the form indicating who or how many
handled the specimen there.”5
The Court in Byerly also noted
3
Ky.App., 825 S.W.2d 286 (1991).
4
Id. at 287.
5
Id.
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that the form completed by the laboratory failed to state whether
the package and the seals were intact upon receipt.
We believe the case sub judice is distinguishable from
Byerly since a Lab Corp employee signed for the specimen on March
18, 2000, and the form was completed to indicate that the package
and the seals were intact upon receipt.
The procedure used
herein was approved in Byerly, where this Court stated:
We would have no problem in this case if
the laboratory had filled out its own form to
at least indicate who received the sample,
that the specimen seal was then intact, and
who had handled the specimen through the time
it was tested. This is hardly a burdensome
procedure, as even the laboratory would seem
to agree in light of its own forms. Such a
simple procedure would obviate any reasonable
probability of tampering from the time the
sample leaves correctional authorities until
it is received by the laboratory, while at
the same time establishing the integrity and
identity of the specimen actually tested.6
We believe the “fundamental fairness” requirement of Byerly has
been met since the evidence relied upon to punish Smothers has
every indication of being reliable.
The other two issues raised by Smothers involve
allegations of improprieties committed by the prison adjustment
officer, Carl Smith.
Smothers claims that at his disciplinary
hearing Smith stated that he had spoken with Deputy Warden Gary
Beckstrom concerning the charge against Smothers; and that Smith
relied upon this conversation in denying Smothers’ request for
witnesses.
6
Smothers further alleges that in his action before
Id. at 288.
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the Morgan Circuit Court for a declaration of rights that Smith
filed a false affidavit in support of the Department’s motion to
dismiss.
In his affidavit, Smith stated in part:
I conducted Inmate Smothers’ hearing on April
3, 2000. CPP 15.6 stipulates that it is the
inmate’s responsibility to identify to the
Adjustment Officer what witnesses he has
selected not less than twenty-four (24) hours
prior to the initial hearing. On the date of
Inmate Smothers’ hearing, I had received no
witness list. The information is documented
on the Part II Hearing form [citation
omitted].
Unfortunately for Smothers, there is nothing in the
record to support his bare allegations that Smith misrepresented
his request for witnesses.
The hearing form in the record
indicates that the hearing was taped, but no tape was filed as
evidence before the trial court.
When a record is silent as to a
factual matter, an appellate court must assume that the record
would support the findings of the trial court.7
Here, the trial
court found no procedural due process violation; and based on the
record before us, we must affirm.
For the foregoing reasons, the order of the Morgan
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Lester Smothers, Pro Se
West Liberty, KY
John T. Damron
Frankfort, KY
7
See Commonwealth v. Thompson, Ky., 697 S.W.2d 143, 145
(1985).
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