Rodney Bryan Stidham v. State of Arkansas

ar02-359

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

DIVISION II

CACR02-359

May 7, 2003

RODNEY BRYAN STIDHAM AN APPEAL FROM CARROLL

APPELLANT COUNTY CIRCUIT COURT

[CR99-38 WD]

V. HON. ALAN EPLEY, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

This is the second time this case has come before us. In this appeal, appellant argues that the trial court erred in admitting evidence not properly authenticated through chain of custody and in denying his motion to reopen a suppression hearing. We find no error and affirm.

On July 18, 1998, appellant's vehicle was stopped by Officer Greg Lester, an investigator with the Carroll County Sheriff's Department, and appellant was arrested for driving with a suspended license. During an inventory search of appellant's vehicle, Officer Lester and Officer Larry Marr, also with the Carroll County Sheriff's Department, discovered substances that they suspected were methamphetamine and LSD and items of drug paraphernalia. The following day, a search warrant was executed on appellant'sresidence where Officer Marr, along with other policemen, found a digital scale, a pipe with residue, a plastic bag containing suspected methamphetamine, two Ziploc baggies containing suspected methamphetamine, a plastic baggie containing suspected marijuana, a knife blade with residue, and a tablespoon with residue.

After the first trial, a jury convicted appellant of possession of methamphetamine with intent to deliver, possession of LSD with intent to deliver, and possession of drug paraphernalia. He was sentenced to fifty-five years in prison, and appealed. Following appellant's first appeal, we reversed and remanded the case back to the trial court for another trial. Stidham v. State, CA99-38, slip op. 2001 WL 419190 (Ark. App. April 25, 2001). However, we addressed the suppression argument raised by appellant and held that the trial court did not err in denying appellant's motion to suppress.

During the trial on remand, the State sought to introduce into evidence the items seized from appellant's vehicle and residence. Appellant objected to the admission of this evidence asserting that the State had not established a sufficient chain of custody. The trial court admitted the items into evidence over appellant's objections. Thereafter, the jury found appellant guilty of possession of methamphetamine with intent to deliver, possession of LSD, and possession of drug paraphernalia, and he was sentenced to forty years in prison. This appeal followed.

For his first point on appeal, appellant argues that the trial court abused its discretion in admitting the items seized from his vehicle and his residence because he claimed that they were not properly authenticated through chain of custody. The decision of whether to admitevidence is a matter within the discretion of the trial court, and will not be reversed absent an abuse of discretion. White v. State, 330 Ark. 813, 958 S.W.2d 519 (1997).

The record reflects that Officer Marr testified that his standard operating procedure for logging in evidence that he seized was to place each item in its own manila envelope and then write, on the outside of the envelope, the suspect's name, the agency case number, the item number, and a description of the item enclosed. Thereafter, he would seal the envelope and put evidence tape on the seal. For items to be submitted to the state crime laboratory for testing, Marr would prepare a state crime lab submission form listing the items to be mailed to the crime lab, place the items already in their individual envelopes in a bigger envelope, and seal that envelope with evidence tape. He would then place the items in an evidence locker for Officer Leighton Ballard, the custodian of evidence, to retrieve.

Marr further testified that on July 18, 1998, he took possession of the items seized from appellant's vehicle. He filled out a property report itemizing the items that were found and prepared a state crime laboratory evidence submission form to have the plastic bag containing suspected methamphetamine and the plastic Ziploc bag containing fifteen units of suspected LSD mailed to the crime lab for testing. Marr said that he placed these items in an envelope, sealed the envelope, and put evidence tape over the seal. He then placed the items in an evidence locker. Marr identified State's Exhibit 9 as the package he had prepared to have the two plastic bags submitted to the crime lab and had placed in the evidence locker. Marr stated that the substance he suspected was methamphetamine was in the form of a "tannish" colored rock. He had previously characterized the substance as "red-rock," which he said was a slang term for methamphetamine that is "tan-reddish" in color. Marr also stated that this methamphetamine was originally in a chunk-like form but that he had changed the form of the substance from a rock to a powder form by applying a minimal amount of pressure to it before placing the substance into a manila envelope.

Marr also explained that he participated in the search of appellant's residence on July 19, 1998, and took possession of the items seized from there. He filled out a property report itemizing the items found at appellant's residence and prepared a state crime laboratory evidence submission form to have the pipe containing suspected methamphetamine, two Ziploc bags containing suspected methamphetamine, one plastic bag containing suspected marijuana, and one plastic bag containing suspected methamphetamine mailed to the crime lab for testing. He placed these five items in an envelope, sealed it, and placed evidence tape over the seal. He then put the items in an evidence locker. Marr identified State's Exhibit 5 as the package containing the five items, which he had prepared for submission to the state crime lab and placed in the evidence locker.

According to Marr, he packaged all the items for submission to the state crime laboratory on July 19 and put them into an evidence locker where they stayed until Officer Ballard retrieved the evidence and mailed the items to the crime lab. Marr acknowledged that there was no formal log-in or log-out procedure for evidence placed in and taken out of one of the evidence lockers; thus, he did not know when Officer Ballard retrieved the evidence. There also was some discrepancy in Officer Marr's testimony as to whether he placed the items in the evidence locker in his office or in one of the four evidence lockerslocated in the deputy room.

Officer Ballard, who was in charge of the evidence room at the Carroll County Sheriff's Department, explained that the normal procedure for accounting for evidence seized was for the evidence to be logged into the evidence room. If the evidence room was closed, any evidence seized could be placed either in one of the four evidence lockers located in the deputy room or in the evidence locker located in Marr's former office. Ballard claimed that he checked these lockers every day and either logged the items into the evidence room or mailed them to the crime laboratory. According to Ballard, to his knowledge only he, Marr, and Captain Ashlock had a key to the evidence lockers. In addition, Ballard testified that he retrieved the items seized in this case from an evidence locker and mailed the items to the state crime laboratory certified mail, return receipt requested on August 17, 1998.

Nick Dawson, a drug chemist with the state crime laboratory, testified that on August 18, 1998, the evidence section of the state crime laboratory received evidence from the Carroll County Sheriff's Department, which was delivered by certified mail. Upon receipt, the evidence was given a lab number and kept in a secure box until he checked it out of the vault for testing on August 2, 1999. According to Dawson, there were five individual packets for testing and each packet was sealed and intact, not appearing to have been tampered. Dawson testified that four of the items contained an off-white to tan-colored powder substance, which tested positive for methamphetamine, and the other item tested positive for marijuana. He explained that after his testing was complete, he resealed thepackets and initialed them. Dawson stated that the items he tested, labeled State's Exhibit No. 5, appeared to be in the similar condition at trial as they were at the time he resealed them.

Linda Burdick, another drug chemist with the state crime laboratory, explained that when evidence is received by the state crime lab it is logged in, given a case number and file folder, and placed into a locker room which is limited to certain "evidence people." When evidence is checked out by a chemist for analysis, the file folder is stamped with the date and time the evidence was checked out and was returned to the evidence section where it stays until picked up by a law enforcement officer. Burdick analyzed the evidence contained in the package labeled State Exhibit No. 9. Burdick stated that the packet was sealed and intact when she received it. She further testified that one of the items contained a tan powder substance that tested positive for methamphetamine, and the other item contained a substance that tested positive for LSD. Burdick also mentioned that methamphetamine can be found in a rock-like or a powder form. If the methamphetamine is in a packed powder form it can be smashed with a person's hand, but that a person could not change the character of methamphetamine in a rock-like form.

The purpose of establishing the chain of custody is to prevent the introduction of evidence that has been tampered with or is not authentic. Guydon v. State, 344 Ark. 251, 39 S.W.3d 767 (2001). 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. Crisco v. State, 328 Ark. 388, 943 S.W.2d 582 (1997). Minoruncertainties in the proof of chain of custody are matters to be argued by counsel and weighed by the jury, but they do not render the evidence inadmissible as a matter of law. Id. While proof of the chain of custody for interchangeable items like blood or drugs needs to be more conclusive than for other evidence, the mere possibility of access to these items, where there is no evidence of tampering, is not enough to render the evidence or the test results inadmissible See Dansby v. State, 338 Ark. 697, 1 S.W.3d 403 (1999).

Appellant contends that the evidence was inadmissible (1) because Marr's testimony was conflicting as to which evidence locker he placed the items; (2) because there was no documentation or log-in or log-out procedures indicating when the items were placed in either the evidence locker in Marr' s office or in one of the four lock boxes in the deputy room, how long they remained in the locker, or when Ballard removed the items from the locker and mailed them to the crime lab; (3) because Marr had previously referred to the suspected methamphetamine found in appellant's vehicle as "red rock" because of its color, but that Nick Dawson and Linda Burdick both testified that the substances they tested were a tannish color powder; and (5) because Marr testified that he smashed a rock-like substance into a powder form, whereas, Linda Burdick stated that a rock form of methamphetamine could not be smashed into a powder.

Appellant relies on the supreme court's holding in Crisco v. State, supra, as support for his argument. In Crisco, an undercover officer purchased a bag of suspected methamphetamine. After receiving the bag, the officer placed it in a safe at his home, and sent it to the state crime laboratory for analysis thirty days later. At trial, the officerdescribed the substance as an off-white powder, but the chemist who tested the substance stated that it was a tan rock-like substance. The supreme court stated that 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 because of the marked difference in the description of the substance by the officer and the chemist.

The facts of this case are distinguishable from Crisco. In the instant case, the record reveals that there was not a significant difference between Marr's description of the substance in Exhibit 9 and that of Linda Burdick the chemist who tested the substance. Linda Burdick stated that she tested a tan-like powder substance. She also mentioned that methamphetamine in a packed powder form can be smashed with a person's hand. Marr stated that with little pressure he was able to change the rock or chunk-like substance, tan in color, to a powder form. He further explained that although he may have previously referred to the substance as red-rock, the term "red-rock," was slang for methamphetamine that is "tan-reddish" in color. Furthermore, there was no discrepancy in the descriptions of the other items sent to the crime lab that were identified in Exhibit 5. Although Marr was unsure which evidence locker he placed the items in, we view this and any minor discrepancies in the descriptions of the items seized and sent to the crime lab for testing as conflicts in the evidence to be considered and weighed by the jury, not as a failure of the State to prove the chain of custody.

In addition, the record shows that the State introduced the Carroll County Sheriff's Department property reports prepared by Marr itemizing the items seized from appellant'svehicle and residence; the state crime laboratory submission forms prepared by Marr identifying which items were to be sent to the state crime lab; the reports of the state crime laboratory chemists, which describe and identify the items tested as the same items listed on the property reports and crime lab submission forms; and the testimony of Marr and Ballard concerning the procedures employed by the sheriff's department for evidence seized, as well as the testimony of two state crime lab chemists about their procedures. This evidence was enough to establish a sufficient chain of custody. Accordingly, we cannot hold that the trial court erred in finding that the evidence had been properly authenticated by the State and was admissible.

For his second point on appeal, appellant argues that the trial court erred in denying his motion to reopen the suppression hearing after his case was remanded for another trial. We review a trial court's ruling on a motion to suppress by making an independent determination based upon the totality of the circumstances, viewing the evidence in a light most favorable to the State. Barcenas v. State, 343 Ark. 181, 33 S.W.3d 136 (2000); Wright v. State, 335 Ark. 395, 983 S.W.2d 397 (1998). A trial court's ruling will only be reversed if it is clearly against the preponderance of the evidence. Green v. State, 334 Ark. 484, 978 S.W.2d 300 (1998).

On remand, appellant filed a motion for a suppression hearing claiming that he had additional evidence relating to probable cause to stop his vehicle and requesting a second suppression hearing to submit this evidence to the trial court for review. The trial court denied appellant's motion finding that appellant failed to state any facts, which wouldindicate that a new suppression hearing should be conducted. On appellant's first appeal, we specifically held that the trial court did not err in denying his motion to suppress based on the argument that there was no probable cause for the stop or that the stop was pretextual. Appellant correctly acknowledges that because this court previously reviewed the suppression issue, the law-of-the-case doctrine applies.

The law-of-the-case doctrine provides that the decision of an appellate court establishes the law of the case for the trial court upon remand and for the appellate court itself upon subsequent review and is conclusive of every question of law and fact previously decided by the appellate court. Ward v. Williams, 80 Ark. App. 69, 91 S.W.3d 102 (2002). However, as appellant notes, the law-of-the-case doctrine is not inflexible and only prevents an issue raised in a prior appeal from being raised in a subsequent appeal where the evidence does not materially vary between the two appeals. Camargo v. State, 337 Ark. 105, 987 S.W.2d 680 (1999). Nonetheless, in this case, appellant did not sufficiently develop this issue at the trial court level. As a result, we are unable to evaluate whether there was evidence sufficient to warrant a new suppression hearing. It is well established that we will not develop an issue for a party at the appellate level. Willis v. State, 334 Ark. 412, 977 S.W.2d 890 (1998).

Affirmed.

Stroud, C.J., and Roaf, J., agree.