Morris Brian Koontz v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBINS, JUDGE

DIVISION I

MORRIS BRIAN KOONTZ

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-613

FEBRUARY 28, 2001

APPEAL FROM THE HEMPSTEAD

COUNTY CIRCUIT COURT

[NO. CR-98-116-3]

HONORABLE DUNCAN McRAE

CULPEPPER, CIRCUIT JUDGE

AFFIRMED

Appellant Morris Koontz was convicted by a jury of residential burglary and rape. For his convictions, he was sentenced to a total of forty-seven years in prison. Mr. Koontz now appeals, arguing that the trial court erred by admitting DNA evidence because the State failed to establish a proper chain of custody for the items contained in the rape kit. We find no error and affirm.

At Mr. Koontz's trial, Officer Tracy Parker testified for the State. He stated that he was working for the Hope Police Department on April 12, 1997, when he was dispatched to the home of the victim, J.P., at about 4:25 a.m. Upon his arrival, J.P. informed him that an unknown black male had entered the residence, grabbed her around the neck, and raped her before exiting through the back door of the house. After giving a statement to Officer Parker,

J.P. was transported to the hospital, where a rape kit was administered. According to Officer Parker, the rape kit was sealed in a box with tape and turned over to him at 8:12a.m. that morning. Pursuant to police procedures, at 8:15 a.m. Officer Parker gave the box to Officer Mike Burris, who was in charge of evidence.

Officer Burris testified that he was the evidence custodian and that he transported the rape kit to the Arkansas State Crime Lab, and when he received it back after testing it was placed in the evidence room under lock and key. Officer Burris testified that the rape kit remained in the evidence room until the morning of trial when it was retrieved for court.

Sally Johnson testified that she is a registered nurse and was present when Dr. Portis examined J.P. and performed the rape kit. Ms. Johnson stated that the rape kit contains packets that are used in a certain sequence, and that proper procedure was followed. After all of the evidence was collected, Ms. Johnson signed her name on the completed rape kit and turned it over to Officer Parker.

Phillip Rains, a forensic biologist at the crime lab, testified that he tested vaginal swabs from the kit as well as blood samples from both J.P. and Mr. Koontz. After performing the tests, Mr. Rains developed a profile of the DNA from the semen found on the swabs, and compared that with the DNA profiles of the known blood sample of Mr. Koontz. Based on the test results, Mr. Rains gave the opinion that Mr. Koontz was the source of the semen and that the estimated probability of an unrelated person from the black population randomly matching the DNA was about one in nineteen trillion.

Mr. Koontz objected to the testimony of Mr. Rains regarding the samples he received based on the contention that there was an inadequate chain of custody. Specifically, Mr. Koontz alleged that the samples were under the custody of serologist Aaron Yeungbefore being turned over to Mr. Rains, and that Mr. Yeung had since been terminated for tampering with evidence at the crime lab. Mr. Yeung did not testify at trial, and Mr. Koontz argued that his absence resulted in an incomplete history regarding the chain of custody, and thus raised a question as to the authenticity of the evidence tested and test results.

On cross-examination, but outside the hearing of the jury, Mr. Rains acknowledged that he received the samples from Mr. Yeung. He further admitted that Mr. Yeung no longer works for the crime lab. However, Mr. Rains was uncertain as to whether Mr. Yeung's termination was for falsifying evidence or merely because of concerns that he had not taken proper time to examine evidence thoroughly. At any rate, Mr. Rains testified that the swabs he tested were those that came from J.P.'s rape kit. He indicated that he formed this belief in part because the swabs he tested proved to be consistent with J.P.'s DNA when compared with her independent blood sample.

For reversal, Mr. Koontz argues that the trial court abused its discretion in admitting the DNA evidence over his objection because the chain of custody was inadequate. He submits that, after Officer Burris transported the rape kit to the crime lab, there was a gap in the custody chain. Mr. Koontz asserts that there was no testimony presented as to who initially received the rape kit at the crime lab, or how many people may have handled it prior to Mr. Rains' examination. Mr. Rains testified that he received pieces of swabs in a package bearing the initials "AY," which indicated that Aaron Yeung had prepared the package. Mr. Koontz contends that, since Mr. Yeung had been terminated and was not present to testify, the State failed to establish that the items tested were authentic and theDNA evidence should have been suppressed.

The purpose of establishing a chain of custody is to prevent the introduction of evidence that is not authentic or that has been tampered with. Newman v. State, 327 Ark. 339, 939 S.W.2d 811 (1997). The trial court must be satisfied within a reasonable probability that the evidence has not been tampered with, but it is not necessary that the State eliminate every possibility of tampering. Id. While proof of the chain of custody for interchangeable items like blood must be more conclusive, the mere possibility of access to these items, where there is no evidence of tampering, is not enough to render the test results inadmissible. Dansby v. State, 338 Ark. 697, 1 S.W.3d 403 (1999). Evidentiary matters regarding the admissibility of evidence are left to the sound discretion of the trial court and rulings in that regard will not be reversed absent an abuse of discretion. White v. State, 330 Ark. 813, 958 S.W.2d 519 (1997).

We hold that the trial court did not abuse its discretion in denying Mr. Koontz's motion to suppress the DNA evidence. The State's witnesses established that the rape kit was administered in the presence of Ms. Johnson, a registered nurse, who then gave the kit to Officer Parker, who gave it to Officer Burris. Officer Burris transported it to the crime lab. Mr. Rains received the swabs from the kit that had been broken down into smaller pieces and were sealed in a laboratory-provided envelope. Mr. Rains testified that this was the normal laboratory procedure.

The "chain of custody" requirement does not require every person who came in contact with evidence to account for it at trial; rather, it is only necessary that the trial courtbe satisfied that the evidence was not tampered with by anyone. Caldwell v. State, 319 Ark. 243, 891 S.W.2d 42 (1995). In the instant case Mr. Yeung apparently handled the samples and did not testify, but this did not render the evidence inadmissible given that there was a reasonable probability that the evidence had not been tampered with. As the State correctly points out in its brief, Mr. Rains established that the vaginal swabs originated from J.P.'s rape kit when he testified that not only did the samples taken from the swabs match Mr. Koontz's blood profile, but they matched J.P.'s as well.

Mr. Koontz also contends that, even if the evidence was properly admitted, the trial court erred in not allowing the jury to weigh information regarding the possible tampering of evidence. Prior to trial, Mr. Koontz filed a motion to compel the State to disclose information about why Mr. Yeung was terminated from his employment with the crime lab, but the trial court ruled that this was irrelevant unless it pertained to his handling of J.P's rape kit. Then, during the trial, Mr. Koontz attempted to cross-examine Mr. Rains about why Mr. Yeung was fired, but the trial court only permitted the line of questioning in camera after briefly excusing the jury. Minor uncertainties in the proof of chain of custody are matters to be argued by counsel and weighed by the jury, see Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988), and Mr. Koontz argues that the trial court's ruling prevented him raising before the jury the fact that Mr. Yeung was terminated for tampering with evidence.

We find no error in the trial court's rulings. The jury heard testimony that Mr. Yeung was no longer employed at the crime lab, and Mr. Koontz made several references in his closing argument to this fact, along with the fact that Mr. Yeung was not present to testify. Thus, the jury was presented with uncertainties regarding the chain of custody. Mr. Koontz states in his brief that Mr. Yeung was fired for falsifying evidence, but this was not established by the proof. Rather, during the in-camera cross-examination of Mr. Rains, Mr. Rains indicated that it was his understanding that Mr. Yeung was terminated for failure to do a thorough job of examining evidence and not intentional misconduct. In this case Mr. Yeung's role was merely packaging, and not testing, the items in the rape kit. At any rate, Mr. Koontz could not establish that Mr. Yeung mishandled any evidence in this case, and we hold that it was not error for the jury to be shielded from the allegations of his misconduct.

Affirmed.

Griffen and Neal, JJ., agree.