Edward Joe Hooten v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

EDWARD JOE HOOTEN

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR05-99

June 22, 2005

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT

[NO. CR-2003-1225]

HON. J. MICHAEL FITZHUGH,

JUDGE

AFFIRMED

Robert J. Gladwin, Judge

Appellant Edward Joe Hooten was convicted of delivery of methamphetamine and sentenced as an habitual offender to thirty years in the Arkansas Department of Correction. On appeal, he argues that the trial court abused its discretion by allowing State's Exhibit Number 5, the State Crime Lab report, into evidence because: (1) it was not timely provided to him during discovery, and (2) its admission denied him the right to confront and cross-examine his accusers, specifically the preparer of the report. Appellant also argues that the State failed to establish a chain of custody for State's Exhibit Numbers 1, 2, and 3, which consisted of an envelope and plastic bags containing the methamphetamine. We affirm.

Appellant met with John Darter, a long-time acquaintance who also happened to be a confidential informant for Sebastian County law enforcement officers. In early September 2003, Mr. Darter met with law enforcement officials and agreed to cooperate with them in purchasing methamphetamine from appellant. Evidence was presented that on September 23, 2003, law-enforcement officials followed Mr. Darter and observed appellant selling methamphetamine to Mr. Darter. Immediately thereafter, they met with Mr. Darter to recover the alleged contraband. Appellant was charged with delivery of methamphetamine and as an habitual offender. Appellant unsuccessfully objected to the admission of State's Exhibit Number 5, the State Crime Lab report, before, during, and after trial, and also objected to the admission of State's Exhibit Numbers 1, 2, and 3 during the trial. The jury convicted appellant of delivery of methamphetamine, and he was sentenced, as an habitual offender, to thirty years in the Arkansas Department of Correction. This appeal followed.

In evidentiary determinations, a trial court has wide discretion, and we do not reverse a ruling on the admission of evidence absent an abuse of discretion. Bullock v. State, 353 Ark. 577, 111 S.W.3d 380 (2003). Regarding discovery procedures related to a criminal matter, Arkansas Rule of Criminal Procedure 17.1 provides in part that:

(d) Subject to the provisions of Rule 19.4, the prosecuting attorney shall, promptly upon discovering the matter, disclose to defense counsel any material or information within his knowledge, possession, or control, which tends to negate the guilt of the defendant as to the offense charged or would tend to reduce the punishment therefor.

Ark. R. Crim. P. 17.1(d). The prosecutor must disclose information in sufficient time to permit the defense to make beneficial use of it, and withholding significant evidence that denies the defendant a fair trial is reversible error. Howard v. State, 348 Ark. 471, 79 S.W.3d 273 (2002), cert. denied 537 U.S. 1051 (2002). However, a defendant cannot rely upon discovery as a total substitute for his own investigation. Id.

Rule 17.1 specifically requires that the prosecuting attorney disclose to defense counsel, upon timely request, the names and addresses of persons whom the prosecuting attorney intends to call as witnesses at any hearing or at trial. See Ark. R. Crim. P. 17.1(a)(i). Rule 17.2 permits a prosecuting attorney to fulfill his or her discovery obligations through the use of an open-file policy. If a prosecutor's office intends to fulfill its discovery obligations by relying upon an open-file policy, it must make every practicable effort to ensure that the information and records contained in the file are complete and that the documents employed at trial are identical to the material available to the defense in the open file. Robinson v. State, 317 Ark. 512, 879 S.W.2d 419 (1994). In order to obtain a reversal of a criminal conviction on the basis of a discovery violation, the appellant must make a showing of prejudice. Id. In the event of a discovery violation, the choice of an appropriate sanction is within the trial court's discretion. Howard v. State, supra.

I. Admission of the State Crime Lab Report

A. Access to Report During Discovery Period

Appellant filed a motion for discovery on November 26, 2003, and his counsel admitted that he had checked the State's file a couple of times during the following summer, probably in June, and there were no reports in the file at that time. The State Crime Lab report was completed by Mr. Benjamin Peacock on June 21, 2004, and the State responded to appellant's motion for discovery on October 4, 2004, providing a copy of the report as evidence that would be introduced at trial and listing Mr. Peacock as a potential witness. The trial was scheduled for one week later, on October 11, 2004. It was not until the day of the trial that appellant's counsel indicated that he wanted to cross-examine Mr. Peacock, and while not expressly asking for a continuance, he objected to the introduction of the report during the trial, alleging that the State failed to provide him a copy during discovery.

Arkansas Code Annotated section 12-12-313 provides that records and reports of the State Crime Lab are to be received as competent evidence when duly attested to by the lab personnel who performed the analysis, or by certain designated officials of the laboratory. The statute provides that the accused shall give at least ten days' notice prior to the proceedings if he wants the person who performed the analysis to be present for cross-examination. If he does not give such notice, the right of confrontation is waived. See Johnson v. State, 303 Ark. 12, 792 S.W.2d 863 (1990). The purpose of the statute is to remove reports from exclusion under the hearsay rule. Hendrix v. State, 40 Ark. App. 52, 842 S.W.2d 443 (1992). There is an exception that arises when the State has caused the defendant to be unable to comply with the statute's ten-day notice prerequisite. Dodson v. State, 326 Ark. 637, 934 S.W.2d 198 (1996); Lockhart v. State, 314 Ark. 394, 862 S.W.2d 265 (1993).

Appellant cites Robinson v. State, supra, where the supreme court discussed the procedural requirement found in Ark. Code Ann. § 12-12-313(d)(2), in which a ten-day notice requirement is set forth for a defendant wishing to cross-examine the crime lab employee who performed the analysis in question, citing Hendrix v. State, supra. In Hendrix, the State argued that an accused's failure to demand the presence of the crime laboratory analyst prior to trial constituted a waiver of his right to demand that presence. This court agreed that even constitutional rights must be asserted in the manner specified by reasonable procedural requirements; however, we found the State's reliance on Johnson v. State, supra, was misplaced. In Johnson, the accused had knowledge that the State Crime Lab report would be used at trial for more than ten days prior to the date of trial, and under those circumstances it was held that his failure to assert his right of confrontation in the time provided by statute constituted a waiver of that right. The court in Hendrix found that the rule in Johnson necessarily contemplates that the accused knew or should have known of the State's intent to use the document, or call the preparer as a witness, prior to trial. In the event of such knowledge, the accused must follow the procedures set out in the statute. The statute, however, contains no alternative procedure for the assertion of these rights when the existence and intended use of such a report first becomes known to the accused after the trial has commenced. In Hendrix, supra, the State admitted that it had no intention of using the evidence in question until after appellant had testified, and it was undisputed that the accused did not know of that intent until the third day of trial. While the procedural rule requiring pretrial notice of demand for the right of cross-examination of a laboratory employee is generally a reasonable one, there can be no reasonable basis for enforcing such a rule where it is not possible for the accused to comply. See Lockhart, supra.

The State maintains that it did not fail to timely provide the report because, although appellant's counsel was well aware of the open-file policy, he failed to check the file after June 2004. In the instant case, appellant's counsel could, and should, have known about the State Crime Lab report far earlier than ten days before the trial; and while the response to discovery was not received until one week prior to the trial, it is not unreasonable to find that he should have anticipated that it would be introduced at trial as a primary piece of evidence utilized to convict appellant. Likewise, while appellant's counsel may have had only a week before trial during which he specifically knew Mr. Peacock was a potential witness, the completed State Crime Lab report could have been obtained as early as June 21, 2004, had he been diligent in conducting his own review. Appellant's counsel should have reviewed the State's file on a regular basis, and once the report had been completed, anticipated that the preparer of the report would likely be called as a witness. The trial court did not abuse its discretion by admitting the report into evidence over appellant's objection, accordingly; we affirm on this point.

B. Confrontation of Accusers

Appellant maintains that in admitting the report from the State Crime Lab into evidence, the trial court denied him the opportunity to confront and cross-examine his accuser. The report, stating that the substance sold by appellant to Mr. Darter was methamphetamine, was signed by Mr. Peacock, a chemist from the State Crime Lab. Appellant states that the report "appeared very scientific, and thus, gave great credibility . . ." He argues that because he could not cross-examine Mr. Peacock, he had no way of discrediting the report and contends that this error was not harmless. Appellant asserts that absent the admission of the report, the only evidence that the substance Mr. Darter obtained from appellant was methamphetamine was testimony from Mr. Darter and Detective Donnie Ware.

The Sixth Amendment to the United States Constitution and Art. 2, § 10 of the Arkansas Constitution guarantee the right of an accused in a criminal prosecution to be confronted with the witnesses against him. Ridling v. State, 348 Ark. 213, 72 S.W.3d 466 (2002). The right of confrontation provides two types of protection for a criminal defendant, the right physically to face those who testify against him and the opportunity to conduct effective cross-examination. Id. Lockhart, supra, is instructive on this issue. In Lockhart, the supreme court upheld the trial court's admission of a State Crime Lab report where the accused indisputably knew six days prior to trial that the State intended to use the report, but his counsel consciously chose not to ask the State to have the analyst present at trial and instead relied on the ten-day notice rule to his client's detriment. No other suggestion of prejudice was offered except the analyst's absence at trial and the accused's corresponding loss of his right to cross-examine. The supreme court held that the accused may have been afforded this right if he had only informed the State of his request, and further that he failed to show how he was harmed by the absence of the chemical analyst. The waiver of the right of confrontation, applied when the required notice is not given, necessarily contemplates that the defendant knew or should have known prior to trial that the State intended to introduce the report. In contrast, the case of Hendrix v. State, supra, as discussed above, was an example where the accused will be relieved of the ten-day notice requirement. There, this court held that the accused had no prior knowledge of the intended use of the report, and therefore, the waiver rule did not apply.

In the instant appeal, appellant's counsel had been given a potential witness list in response to his discovery request, although the response was filed only a week prior to trial. The State revealed that it intended to introduce the State Crime Lab report and that it had as a potential witness, Mr. Peacock, the analyst from the State Crime Lab. Appellant's counsel chose not to raise this issue until the day of trial, not at the earliest convenience as he argues. More importantly, appellant's counsel had access to the report and the identity of the preparer as early as June 21, 2004, yet he chose not to review the State's open file after June - a period of at least three months leading up to trial. To reiterate, a defendant cannot rely upon discovery as a total substitute for his own investigation. Howard v. State, supra. We affirm on this point as well.

II. Chain of Custody for State's Exhibits1, 2, and 3

The decision to admit or exclude evidence is within the sound discretion of the trial court, and the appellate courts will not reverse a trial court's evidentiary ruling absent an abuse of discretion and a showing of prejudice. LeFever v. State,__ Ark. App. __, __ S.W.3d __(May 18, 2005). The purpose of establishing the chain of custody is to prevent the introduction of evidence that has been tampered with or is not authentic. Kincannon v. State, 85 Ark. App. 297, 151 S.W.3d 8 (2004). 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 and weighed by the jury, but they do not render the evidence inadmissible as a matter of law. Id. Our courts have required that the chain of custody for interchangeable items like drugs or blood needs to be more conclusive than for other evidence. Id.

Rule 901 of the Arkansas Rules of Evidence states that the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims, including testimony of a witness, public records, or reports. To prove authenticity of evidence, the State must demonstrate a reasonable probability that the evidence has not been altered in any significant manner. Garner v. State, 355 Ark. 82, 131 S.W.3d 734 (2003).

Appellant claims that the State failed to establish the proper chain of custody for State's Exhibit Numbers 1, 2, and 3. The State's first witness, Mr. Darter, testified that he received the alleged methamphetamine from appellant and kept it in his hand until he met Detective Ware immediately after the transaction. Detective Ware then testified that he recognized State's Exhibits Number 1, an envelope, Number 2, a plastic bag with one corner that had been cut off and then sealed, and Number 3, a plastic baggy that contained a smaller plastic baggy with a white powder substance. He explained that he submitted the bags and envelope to the State Crime Lab on September 23, 2003, after receiving them from Mr. Darter. He further testified that he did not see them again until the trial on October 11, 2004, but that Freddie Rizzo, who did not testify, was the individual responsible for transporting the evidence to the State Crime Lab. Because this was the only testimony given regarding the chain of custody of the evidence, appellant maintains that the State failed to meet its burden. No evidence was provided regarding the chain of custody from September 23, 2003, until October 11, 2004. No evidence was presented regarding who had control over the evidence during the time it was at the State Crime Lab. Detective Ware could not establish that the original contents of the package were analyzed and placed back in the original baggy, nor could he provide proof that no one had tampered with, or altered, the original substance before returning it to the original bag. In short, appellant argues that Detective Ware could not connect the substance that was originally received by Mr. Darter from appellant and then sent to the State Crime Lab to the substance that was presented in court. Accordingly, he contends the trial court erred by allowing State's Exhibit Numbers 1, 2, and 3 into evidence.

In order for a trial court to allow introduction of physical evidence, it is not necessary that every moment from the time the evidence comes into the possession of a law enforcement agency until it is introduced at trial be accounted for by every person who could have conceivably come in contact with the evidence during that period. See Garner v. State, supra. In addition, it is not necessary that every possibility of tampering be eliminated; it is only necessary that the trial court, in its discretion, be satisfied that the evidence presented is genuine and, in reasonable probability, has not been tampered with. Id.

Although there was a significant amount of time that was not accounted for by the State, appellant made no specific allegations of tampering with respect to the evidence. Because there were no overt allegations of tampering made by appellant during the trial, and given that his attorney objected to the introduction of these exhibits on a purely technical argument, namely that the State did not present in-person testimony as to the chain of custody, we find that the trial court did not abuse its discretion in finding that the evidence presented was genuine and, in reasonable probability, had not been tampered with or altered. At best, appellant alleged only "minor uncertainties in the proof of chain of custody," which go to the weight, rather than the admissibility, of the evidence. We affirm on this point as well.

Affirmed.

Hart and Roaf, JJ., agree.