Lee v. State

Lendell LEE v. STATE of Arkansas

CR 96-466                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered October 7, 1996


1.   Evidence -- evidence supporting criminal verdict must be
     substantial -- substantial evidence defined. -- On appeal, the
     court determines whether the evidence in support of the
     verdict is substantial; substantial evidence is that which is
     forceful enough to compel reasonable minds to reach a
     conclusion one way or another; in a criminal case, the court
     reviews the evidence in the light most favorable to the State
     and considers only that evidence which supports the guilty
     verdict.  

2.   Evidence -- fingerprints can constitute evidence sufficient to
     sustain conviction. -- Fingerprints can constitute evidence
     that is sufficient to sustain a conviction.

3.   Evidence -- evidence of rape overwhelming -- trial court did
     not err in denying motion for directed verdict. -- There was
     overwhelming evidence of the rape and kidnapping from the
     testimony of the victim and the emergency-room physician;
     moreover, the evidence linking appellant to the assault was
     substantial and included fingerprints taken from the place of
     attack that matched appellant's and semen in the vaginal swabs
     taken from the victim and appellant's blood that matched, with
     the chance of an identical match being one in eighty-three
     million; the evidence was sufficient to support appellant's
     conviction for the crimes charged; the trial court did not err
     in denying his motion for directed verdict.

4.   Evidence -- blood samples require conclusive chain of custody
     -- evidence matters are within sound discretion of the trial
     court and will not be disturbed absent abuse of discretion. --
     Blood samples, which are considered interchangeable items,
     require a more conclusive chain of custody than items of
     evidence that are subject to positive identification; however,
     evidentiary matters regarding the admissibility of evidence
     are within the sound discretion of the trial court, and
     rulings in this regard will not be reversed absent an abuse of
     discretion.  

5.   Evidence -- purpose of establishing chain of custody -- mere
     possibility of access to blood is not enough to render test
     results from that blood inadmissible. -- 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; the trial court must be satisfied, within a reasonable
     probability, that the evidence has not been tampered with; it
     is not necessary that the State eliminate every possibility of
     tampering; the mere possibility of access to blood, where
     there is no evidence of tampering, is not enough to render
     test results from that blood inadmissible.    

6.   Evidence -- DNA evidence and testimony properly admitted --
     testimony revealed continuous chain of custody. -- The trial
     court did not abuse its discretion in admitting the DNA
     evidence and testimony; with regard to the rape kit (and the
     swabs contained therein), the abstract did not reveal that
     appellant made a specific objection to its introduction;
     arguably, this could be seen as a waiver of the right to raise
     this point on appeal; however, even on the merits, the
     testimony revealed a continuous chain of custody from the time
     the rape kit was used to examine the victim until it was
     submitted to the FBI for DNA testing.  

7.   Evidence -- blood samples revealed successive chain of custody
     -- no abuse of discretion found in admitting samples. -- Where
     the blood samples taken from appellant and the victim revealed
     a successive chain of custody, the trial court's determination
     that the integrity and authenticity of the evidence had been
     clearly established was not an abuse of discretion; there was
     no evidence in the record that reflected any actual tampering
     or contamination of the samples or a significant gap in the
     chain of custody; absent evidence of tampering, the trial
     court's ruling will not be disturbed unless there is a clear
     abuse of discretion. 


     Appeal from Pulaski Circuit Court, First Division; Marion
Humphrey, Judge; affirmed.
     Wallace, Hamner, and Adams, by:  Dale E. Adams, for appellant.
     Winston Bryant, Att'y Gen., by:  J. Brent Standridge, Asst.
Att'y Gen.,  and Stuart A. Cearley, Law Student Admitted to
Practice Pursuant to Rule XV(G)(1)(b) of the Rules Governing the
Admission to the Bar, for appellee.

     Andree Layton Roaf, Justice.
     Appellant Ledell Lee appeals his convictions for kidnapping
and rape.  He was sentenced to sixty years on each conviction, to
be served concurrently.  Lee argues that there was insufficient
evidence to sustain the verdicts without erroneously admitted DNA
evidence.  He contends that the DNA evidence was inadmissible
because the state failed to establish a proper chain of custody for
blood samples and tissue swabs used to perform the DNA analysis. 
We find no error and affirm.
     Lee was convicted of the kidnapping and rape of a seventeen-
year-old girl in Jacksonville, Arkansas.  The victim was abducted
from her sister's home on the night of November 27, 1990, and was
raped in a wooded area behind the house.  The victim described her
attacker as a tall, black male, but was unable to identify him
because he prevented her from seeing his face during the attack. 
Evidence from a rape-kit examination performed on the victim was
submitted to the state crime laboratory for analysis.  Hair
combings from the victim's clothing contained two Negroid hairs,
and semen was identified in vaginal swabs taken from the rape
examination.  After the analysis, the rape-kit evidence was stored
by the state crime lab in a secure freezer in May, 1991.    Also,
two days after the rape, Jacksonville police officers processed the
victim's home for evidence and took latent fingerprints from inside
and outside the residence.  The case remained in an inactive status
until Lee became a suspect in February, 1993. 
     Hand prints and fingerprints, hair samples, and a blood sample
were taken from Lee in February, 1993.  Lee's palm print matched a
palm print found on a bedroom window at the victim's home.  Lee's
blood was tested along with the victim's blood and the vaginal
swabs from the rape kit.  The FBI agent who performed the DNA
analysis concluded that the probability of the assailant being
someone other than Lee was one in eighty-three million from the
black population.  The palm print and the DNA profile evidence
essentially comprised the state's case against Lee. 
                 1.  Sufficiency of the Evidence
     Lee contends that because the state failed to establish an
adequate chain of custody for blood samples used in the DNA
analysis, his motion for a directed verdict should have been
granted.  Lee submits that the motion for directed verdict should
have been granted because, without the erroneously admitted DNA
testimony, the evidence of the matching palm print was insufficient
to connect him to the assault on the victim.  Although Lee combines
his argument concerning the sufficiency of the evidence with his
challenge to the admissibility of the DNA evidence, the
preservation of an appellant's right to freedom from double
jeopardy requires that we review the sufficiency of the evidence
prior to examining trial error.  Passley v. State, 323 Ark. 301,
915 S.W.2d 248 (1996).  Consequently, we address Lee's challenge to
the sufficiency of the evidence before considering his other
assignments of trial error.  In determining the sufficiency
question, we disregard any alleged trial errors. Young v. State,
316 Ark. 225, 871 S.W.2d 373 (1994).
     On appeal, we determine whether the evidence in support of the
verdict is substantial.  Substantial evidence is that which is
forceful enough to compel reasonable minds to reach a conclusion
one way or another.  Id. In a criminal case, we review the evidence
in the light most favorable to the state, and consider only that
evidence which supports the guilty verdict.  Id.
     In the instant case, the victim testified that she was home
alone with her three-year-old nephew and three-month-old niece on
the evening of the assault.  She stated that while she was rocking
her niece, a man came up behind her, put an arm around her neck,
struck her on the head and face with an iron, forced her out of the
house and into a wooded area, where he raped her, choked her, and
held her head under water in a ditch until she lost consciousness. 
She testified that when she regained consciousness, she was lying
face up in the ditch, wearing only a bra and a tee shirt.  She
returned home and was taken to a hospital emergency room where the
rape examination was performed.  The victim described her attacker
as a tall, black man with large hands.
     Dr. George McCrary, a physician who was working at the
Rebsamen Regional Medical Center Emergency Room on the night of the
assault, testified that he examined the victim and performed the
rape-kit examination.  He stated that she had lacerations on the
forehead and nose, choke-mark-type bruises on her neck,  and
scratches on her leg.  He further testified that there was an
abrasion on her vagina and mud and leaves in the area of her groin. 
Kenny King, a latent fingerprint examiner employed by the state
crime lab, testified that the right-palm print taken from Lee
matched State's Exhibit Thirty-One, which was a latent-palm print
recovered from the crime scene.  Robert Baker, a lieutenant with
the Jacksonville police department, testified that he lifted eleven
latent fingerprints from inside and outside the victim's house two
days after the assault.  He identified State's Exhibit Number
Thirty-One as a latent print obtained from the outside glass of a
bedroom window that was believed to be the assailant's point of
entry, because it was unlocked on the night of the assault.
     Harold Deadman, a special agent in the DNA-analysis unit of
the FBI laboratory in Washington, D.C., testified that he performed
an analysis of blood samples from Lee and the victim, and two
vaginal swabs taken from the victim after the rape.  Deadman
testified that he obtained a match with four of six probes used in
comparing the known blood sample from Lee with the male fraction of
DNA obtained from the vaginal swabs; he stated that the results
from two of the probes were inconclusive for purposes of matching. 
Based on this analysis, Deadman testified that the probability of
finding someone in the black population who had the same DNA as Lee
would be one in eighty-three million.   
     Clearly, there was overwhelming evidence of the rape and
kidnapping from the testimony of the victim and the emergency-room
physician.  Moreover, the evidence linking Lee to the assault was
substantial.  This court has held that fingerprints can constitute
evidence that is sufficient to sustain a conviction. Howard v.
State, 286 Ark. 479, 695 S.W.2d 375 (1985); Ebsen v. State, 249
Ark. 477, 459 S.W.2d 548 (1970).  Furthermore, semen in the vaginal
swabs taken from the victim and Lee's blood matched with the chance
of an identical match being one in eighty-three million.  We hold
that the evidence was sufficient to support Lee's conviction for
the crimes charged, and that the trial court did not err in denying
Lee's motion for directed verdict.
                       2. Chain of Custody
     We next consider Lee's assertion that the trial court erred in
admitting the DNA evidence and testimony because the State failed
to establish a proper chain of custody for the blood samples and
vaginal swabs used to perform the DNA analysis.  Lee's chain of
custody argument is twofold.  First, he asserts that there is a
break in the chain of custody with respect to State's Exhibits
Forty-Four and Forty-Five, which are the vials that contained the
blood drawn from the victim and Lee on February 18, 1993.  These
blood samples were drawn by Lisa Holt, an employee of Crestview
Family Clinic in Jacksonville.  Holt testified that she drew two
vials of blood from Lee on the morning of February 18, 1993, and
two vials of blood from the victim later that day.  She stated that
she placed her initials and the date on the vials and handed them
to the officers who accompanied Lee and the victim to the clinic. 
When it was called to her attention during cross-examination that
her initials were not on any of the vials in either exhibit, Holt
testified that she did not understand why because it was her normal
procedure to initial such evidence, and that she "must have been
told not to put them [her initials] on."  However, on recall, Holt
further observed that the vials were properly dated and labeled
with the names of the victim and Lee, and she recognized her
handwriting on the vials.  Lee objected to the introduction of
Exhibits Forty-Four and Forty-Five and argued to the trial court
that Holt could not identify the vials because they did not bear
her initials as she had originally testified; the trial court
overruled the objection.
     Lee's second chain of custody objection pertains to the
testimony of Dr. Deadman, the FBI special agent who provided the
DNA analysis and DNA profiling testimony at trial. Lee first
objected to the introduction of the autorads (films of matched DNA
bands) prepared by Deadman in his analysis of the vaginal swabs and
blood samples drawn in February, 1993, and in a subsequent analysis
performed with a second blood sample drawn from Lee in August,
1994.  Lee argued to the trial court that Deadman did not testify
as to where the blood samples or the vaginal swabs came from, only
that he had received them, and that this omission constituted a
break in the chain of custody.  The trial court overruled the
objection, and the autorads, State's Exhibits number Fifty-Nine
through Seventy, were received into evidence.  Later, at the
conclusion of Deadman's testimony, the State sought to introduce
all of its exhibits, numbers One through Seventy, and Lee again
objected to the introduction of the autorads.   Lee argued that the
State had not established a chain of custody to support either the
first or second DNA analysis because of the chain of custody lapse
in Deadman's testimony and that of Lisa Holt.  The trial court
again overruled Lee's objection and allowed the State's exhibits to
be introduced into evidence.  
     With regard to Deadman's testimony, Kermit Channel, a forsenic
serologist employed with the state crime lab, testified that he
sent the blood samples drawn from Lee and the victim in February,
1993, along with the vaginal swabs from the rape kit to the FBI
laboratory on March 1, 1993.  Phil Rains, also a state crime lab
serologist, testified that he sent the second blood sample drawn
from Lee in August, 1994, to the FBI on September 6, 1994, along
with the probed membrane which had been submitted by the FBI
following the first analysis in 1993.  Deadman's testimony was as
follows:
     Q.   Doctor, did you have occasion to receive a known
     blood sample from [the victim] and a known vaginal swab
     from a rape kit of [the victim] from the Arkansas State
     Crime Laboratory?
     A.   Yes, I did.
     Q.   And when did you receive that?
     A.   In March of 1993, March 5th, 1993.
     Q.   And in what form did you receive that blood sample
     of [the victim]?
     A.   Typically, and in this case we received it in the
     form of a dried stain....
     Q.   And that is how you received [the victim's] blood?
     A.   Yes.
     Q.   Okay.  And in what form did you receive the swab?
     A.   The swab would have been--there are actually two
     swabs.  The sticks of the swabs were broken.  The swabs
     are contained in a, in a small envelope, a small
     envelope.
     Q.   And did you also have occasion to receive a known
     blood sample from the defendant, Ledell Lee?
     A.   Yes, I did.
     Q.   And in what form was that received?
     A.   It was received as a dried stain also. ...
     A.   ...Sometime last fall, early in the fall the FBI
     Laboratory began using two additional probes and at that
     time the membrane was re-submitted to the laboratory and
     the DNA on the membrane was subjected to two additional
     probes and then the results from that additional probing
     were combined with the earlier results, another report
     was generated, and then I returned the membrane.
     Q.   Okay.  The, this, the -- when the probed membrane
     that you created was resubmitted to the crime laboratory,
     was there also a new sample of the defendant's, Ledell
     Lee's blood sent to the FBI Laboratory?
     A.   Yes.  A second sample of his blood was submitted.

     Deadman was not asked when he received the second blood
sample.
     This court has stated that blood samples, which are considered
interchangeable items, require a more conclusive chain of custody
than items of evidence which are subject to positive
identification.  Neal v. State, 298 Ark. 565, 769 S.W.2d 414
(1989).  However, evidentiary matters regarding the admissibility
of evidence are within the sound discretion of the trial court, and
rulings in this regard will not be reversed absent an abuse of
discretion.  Harris v. State, 322 Ark. 167, 907 S.W.2d 729 (1995);
Hubbard v. State, 306 Ark. 153, 812 S.W.2d 107 (1991).  
     Additionally, we have stated that 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.  Harris v. State,
supra; Pryor v. State, 314 Ark. 212, 861 S.W.2d 544 (1993).  The
trial court must be satisfied, within a reasonable probability,
that the evidence has not been tampered with.  Harris, supra;
Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988).  It is not
necessary that the State eliminate every possibility of tampering. 
Id.  The mere possibility of access to blood, where there is no
evidence of tampering, is not enough to render test results from
that blood inadmissible.  See Turner v. State, 258 Ark. 425, 527 S.W.2d 580 (1975).  
     In Phills v. State, 301 Ark. 265, 783 S.W.2d 348 (1990), the
court could not determine the nature of the appellant's objection
to a serologist's testimony regarding blood samples.  The court
concluded that the objection had to do with the adequacy of the
foundation laid for the testimony, stating that:
Appellant may be arguing that [the] foundation
[which was laid] was inadequate.  As in Munnerlyn v.
State, 264 Ark. 928, 576 S.W.2d 714 (1979), appellant
does not allege that the samples had been tampered with
and there is nothing in the record to suggest such a
possibility.  It is not necessary that every moment from 
the time 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 into contact with it.  It is only necessary that the
trial judge, in his discretion, be satisfied that the
evidence presented is genuine and, in reasonable
probability, has not been tampered with.  The trial
judge did not abuse his discretion in allowing the
result of the serological test of appellant's blood
sample.

Id.  Likewise, in Neal v. State, supra, the appellant argued an
inadequate chain of custody resulting from blood samples that were
not properly stored, leading to the possibility of tampering and
contamination.  However, this court did not accept this argument,
noting that the trial court had determined that the integrity of
the evidence had been sufficiently established.  While we were
sympathetic to the defendant's concerns in Neal, we could not say
that the trial court abused its discretion in admitting the
evidence.
     Here, we cannot say that the trial court abused its discretion
in admitting the DNA evidence and testimony.  With regard to the
rape kit (and the swabs contained therein), the abstract does not
reveal that Lee made a specific objection to its introduction. 
Instead, Lee made an objection to the autorads prepared at the FBI
lab, which were made using the swabs.  Arguably, this can be seen
as a waiver of the right to raise this point on appeal.  See Gibson
v. State, 316 Ark. 705, 875 S.W.2d 58 (1994).  However, even on the
merits, the testimony reveals a continuous chain of custody from
the time the rape kit was used to examine the victim until it was
submitted to the FBI for DNA testing.  Deadman in fact testified
when and from whom he received this evidence.
     Likewise, the blood samples taken from Lee and the victim on
February 18, 1993, reveal a successive chain of custody.  The same
can be said for the sample taken from Lee on August 26, 1994. 
While Holt testified that she did not follow her normal routine by
failing to initial the February 18 samples, she unequivocally
stated that the labels on the blood samples were written in her own
handwriting.  Deadman testified to receiving both of the blood
samples, although he did not specify the date he actually received
the second sample of Lee's blood.
     The trial court determined that the integrity and authenticity
of the evidence had been clearly established.  There is no evidence
in the record which reflects any actual tampering or contamination
of the samples, or a significant gap in the chain of custody.
Absent evidence of tampering, the trial court's ruling will not be
disturbed unless there is a clear abuse of discretion.  See Gomez
v. State, 305 Ark. 496, 809 S.W.2d 809 (1991).  We find no abuse of
discretion in admitting this evidence.  
     Affirmed.