JAMES SINNOTT v. COMMONWEALTH OF KENTUCKY
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RENDERED: September 10, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-001422-MR
JAMES SINNOTT
v.
APPELLANT
APPEAL FROM LEWIS CIRCUIT COURT
HONORABLE LEWIS D. NICHOLLS, JUDGE
ACTION NO. 95-CR-00027
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
KNOPF, MILLER, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
This is an appeal from a judgment convicting
appellant of tampering with physical evidence with regard to a
blood sample to be used to prove paternity.
Upon review of
appellant’s arguments in light of the record herein and the
applicable law, we affirm the conviction.
In March of 1992, Kara Plummer became romantically
involved with appellant, James Sinnott, a Kentucky State Trooper.
In November 1993, Kara learned she was pregnant.
The child was
conceived in October 1993, and, according to Kara, at that time
she was not sexually involved with anyone except Sinnott.
When
Kara informed Sinnott, who had since gotten married to another
woman, that she was pregnant and he was the father, Sinnott
denied paternity and refused to pay any of Kara’s medical
expenses.
On December 14, 1993, Kara sent Sinnott a letter
stating that if Sinnott did not acknowledge his responsibility,
she would file a paternity suit and have blood tests performed.
Subsequently, Sinnott asked his attorney, Luke Bentley, to assist
him in mediating the matter.
After meeting with Sinnott and
Bentley, Kara initially agreed not to seek a blood test when
Sinnott offered to give her $1,600 toward her medical expenses.
Thereafter, Sinnott still refused to acknowledge paternity.
Consequently, Kara asked her employer, attorney Lloyd Spear, to
represent her in a paternity action.
birth to a girl, Alexia Plummer.
On June 17, 1994, Kara gave
On August 9, 1994, Spear sent a
letter to Bentley stating that, “Once the test results are back
showing Jim to be the father, we need to have the paternity
confirmed by Court Order.
This will be accomplished in the Lewis
County District Court with Kara filing a petition, Jim entering
his appearance, and there being an Agreed Judgment.”
Bentley
responded that Sinnott continued to deny paternity but that blood
tests could be performed at the office of Kara’s obstetrician,
Dr. Lee.
When Kara called Dr. Lee’s office, she spoke to Vanessa
Harrison, co-defendant, the phlebotomist at the office.
Harrison
told Kara that Dr. Lee did not get involved with paternity
actions but that she would draw blood for the paternity test at
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no charge.
Harrison told Kara that having her do the blood tests
would save Kara time, money, and embarrassment.
On September 8, 1994, Spear filed a complaint in the
Lewis District Court seeking a determination of paternity.
The
paternity action was ultimately filed by the Commonwealth on
behalf of Kara and Alexia.
At the same time, Spear filed a
custody action in the Lewis Circuit Court.
On September 21,
1994, appellant filed his answer denying that he was Alexia’s
father.
In another letter dated October 12, 1994, Bentley
informed Spear that he would take care of arranging tests with
Harrison.
Spear testified that he was not involved in any way in
selecting Harrison to conduct the blood tests.
The initial blood tests were administered on
October 26, 1994.
paternity test.
Harrison had never before taken blood for a
The night prior to the tests, Harrison called
Kara and asked if it was alright to open the test kits.
gave her approval.
Kara
Thirty minutes later, Harrison called Kara to
inform her that some items were missing from the kits such as
alcohol swabs, a tourniquet, and a camera.
On the morning of October 26, 1994, Harrison came to
Kara’s home to draw the blood from Kara and to obtain saliva
swabs from Alexia.
She drew three vials of blood from Kara.
Kara testified that she saw six empty blood vials when Harrison
opened the kit.
While she was drawing the blood, Harrison told
Kara that there had been rumors about Harrison and Sinnott being
involved in a romantic relationship.
these rumors were not true.
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Harrison told Kara that
Harrison then drove to Bentley’s office.
Bentley took
Sinnott and Harrison downstairs to a conference room.
Bentley
left the two alone in the room and then closed the door and left
so that Harrison could draw Sinnott’s blood in private.
The
defense maintains that Harrison drew Sinnott’s blood at this
time.
No one observed Harrison draw Sinnott’s blood.
A polaroid
picture was taken of Sinnott by Harrison during that time, which
was required to be sent with the blood samples as part of the
kit.
After the alleged blood tests had been completed, Sinnott
and Harrison came back upstairs and talked with Bentley for a
short time.
Harrison then left.
Later that same afternoon, Harrison called Kara and
told her that she had completed the blood draw on Sinnott and
that she would bring the package containing all the blood samples
and Alexia’s saliva sample to Kara so that Kara could mail it to
the testing company, Genetic Design, in North Carolina.
5:00 p.m., Harrison brought the package to Kara.
At about
It was a clear,
sealed Federal Express mail bag which contained two smaller
sealed plastic bags.
These two smaller plastic bags, referred to
by Genetic Design as the “chain of custody bags,” were each
sealed and contained brown cardboard boxes with the blood samples
inside.
The polaroid pictures of Kara and Sinnott were in a
pocket on the outside of the smaller plastic bag containing their
respective blood sample.
Kara put the package on the clothes
dryer in her house with the intention of mailing it the next
morning from the office of her employer, the Commonwealth
Attorney.
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At about 6:00 p.m. that evening, Beth Plummer, Kara’s
twin sister who lived with Kara and who worked at Maysville
Medical Clinic, returned home and saw the package on the dryer.
Beth testified that she opened the large mailing bag because she
wanted to see the photograph of Sinnott that was on the outside
of the smaller bag inside.
She testified that she wanted to see
Sinnott’s picture because she did not trust him and wanted to
make sure he was actually the one who gave the blood sample.
Beth testified that she did not open either of the smaller bags
or the cardboard boxes inside the mailing bag.
never saw any blood.
She claimed she
After looking at the picture, Beth
maintained that she put the smaller bags inside an extra unused
mailing bag that was sitting next to the package and sealed it.
Apparently, there was an extra mailing container because Harrison
should have put the two chain of custody bags in separate mailing
bags.
When Kara learned that her sister had opened the mail bag,
she admonished her sister about tampering with the package but
did not tell anyone until almost eight months later.
The next
morning, Kara mailed the package from the Commonwealth Attorney’s
office to Genetic Design.
One week after the blood draw, Harrison asked Kara to
sign a document releasing Harrison from any liability regarding
the results of the blood tests.
Kara signed the release, which
Harrison backdated to the date of the blood draw.
In November 1994, Spear received the results of the
blood tests, which revealed that Sinnott could not be the father
of Alexia.
Because she knew this had to be wrong, she asked that
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Spear move the court for an additional court-ordered blood test.
The court ordered the blood test to be conducted on December 27,
1994.
Sinnott failed to appear for this blood test and again
failed to appear on a second scheduled date.
It was not until
the court threatened to hold Sinnott in contempt that he
submitted to the second blood test.
This blood test was
conducted by a court-appointed phlebotomist in an empty courtroom
with all the parties present.
The results of this blood test
showed that there was a 99.32% probability that Sinnott was the
father of Alexia.
The results also showed that the blood from
the male in the first test and the blood from the male in the
second test could not have come from the same person.
Thereafter, a motion for summary judgment in the paternity case
was granted, adjudging Sinnott to be Alexia’s father.
On October 6, 1995, Sinnott and Harrison were indicted
for tampering with physical evidence.
Prior to trial, Sinnott
moved to suppress the results of the first blood test due to the
break in the chain of custody when Beth Plummer opened the
package containing the blood tests.
After a full hearing, the
court denied the motion and allowed the results of the first
blood test to be admitted into evidence.
Sinnott and Harrison
were tried together on March 17, 1997, and both were found guilty
of tampering with physical evidence.
two years’ imprisonment.
Sinnott was sentenced to
This appeal by Sinnott followed.
Sinnott argues that the trial court erred when it
denied his motion for directed verdict.
On appellate review, the
test of a directed verdict is, if under the evidence as a whole,
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it would be clearly unreasonable for a jury to find guilt, only
then is the defendant entitled to a directed verdict of
acquittal.
Commonwealth v. Benham, Ky., 816 S.W.2d 186 (1991).
Sinnott maintains that the Commonwealth failed to present
sufficient evidence that he tampered with the blood samples.
Sinnott was charged and convicted under KRS 524.100 which
provides as follows:
(1) A person is guilty of tampering with
physical evidence when, believing that an
official proceeding is pending or may be
instituted, he:
(a) Destroys, mutilates, conceals, removes
or alters physical evidence which he believes
is about to be produced or used in the
official proceeding with intent to impair its
verity or availability in the official
proceeding; or
(b) Fabricates any physical evidence with
intent that it be introduced in the official
proceeding or offers any physical evidence,
knowing it to be fabricated or altered.
Although no one saw Sinnott substitute his blood sample
with blood from someone else, there was substantial
circumstantial evidence thereof.
First and foremost, the fact
that the blood sample in the first test was from a different
person than in the second test wherein the test was performed
under supervised conditions suggests that the sample in the first
test had to be substituted with the blood of another individual.
Also, the Commonwealth introduced proof that at the time Harrison
was suggested by Bentley to perform the blood tests and at the
time the blood tests were performed, Harrison and Sinnott were
involved in a sexual relationship.
In fact, one witness
testified that Harrison told her that she and Sinnott had sex at
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his house after they left Bentley’s office on the day of the
supposed blood test.
Further, the Commonwealth introduced phone
records which showed:
a total of 139 calls from Harrison’s place
of employment to Sinnott’s home; one call from Sinnott’s home to
Harrison’s home; 42 calls from Harrison’s residence to Sinnott’s
home; 12 calls from Harrison’s employment to Dale Gee, a friend
of Sinnott’s who had offered to help him with regard to the
paternity matter; and nine calls from Gee’s home to Harrison’s
place of employment.
and December 1994.
These calls were made between August 1994
patients of Dr. Lee.
Neither Sinnott’s wife nor Gee’s wife were
As stated above, neither Spears nor Kara
had any involvement in selecting Harrison to draw the blood.
It
was Bentley that first suggested to Spears and Kara that Harrison
perform the blood tests.
Harrison had never before performed
blood tests for purposes of a paternity test.
There was also
evidence that Harrison had access to blood samples through her
employment.
Circumstantial evidence is sufficient to support a
criminal verdict as long as the evidence taken as a whole shows
that it was not clearly unreasonable for the jury to find guilt.
Bussell v. Commonwealth, Ky., 882 S.W.2d 111 (1994), cert.
denied, 513 U.S. 1174, 115 S. Ct. 1154, 130 L. Ed. 2d 1111
(1995).
From our review of the evidence, we believe there was
more than sufficient evidence from which a jury could find
Sinnott guilty of tampering with physical evidence.
Sinnott also argues that there was not evidence that he
knew that the blood test was to be used in an official
proceeding.
We believe this argument is wholly without merit.
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The paternity action and the custody action had already been
filed regarding this child at the time of the first blood test,
and Sinnott had received notice of both actions.
Further,
Sinnott had retained an attorney to represent him in the
paternity action.
Sinnott surely knew that the results of the
blood test were a determining factor in the paternity action.
Sinnott next argues that the court erred in denying his
motion to suppress the results of the first blood tests on
grounds of the break in the chain of custody by the actions of
Beth Plummer.
Sinnott contends that Beth Plummer’s tampering
with the package containing the blood tests destroyed the chain
of custody and the integrity of that evidence.
Proof of chain of custody is required for blood
samples.
Robovsky v. Commonwealth, Ky., 973 S.W.2d 6 (1998);
Calvert v. Commonwealth, Ky. App., 708 S.W.2d 121 (1986); Haste
v. Kentucky Unemployment Insurance Commission, Ky. App., 673
S.W.2d 740 (1984).
The purpose of requiring proof of the chain
of custody of a blood sample is to show that the blood tested in
the laboratory was the same blood drawn from the individual at
issue in the particular case.
Robovsky, 973 S.W.2d at 8.
However, as was further stated in Robovsky, 973 S.W.2d at 8,
quoting United States v. Cardenas, 864 F.2d 1528, 1532 (10th Cir.
1989):
Even with respect to substances which are not
clearly identifiable or distinguishable, it
is unnecessary to establish a perfect chain
of custody or to eliminate all possibility of
tampering or misidentification, so long as
there is persuasive evidence that ‘the
reasonable probability is that the evidence
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has not been altered in any material
respect.’
Normally, gaps in the chain of custody go to the weight of the
evidence.
Robovsky, 973 S.W.2d at 8; United States v. Lott, 854
F.2d 244 (7th Cir. 1988).
With respect to evidence that has been
altered, it has been held that “so long as the relevant features
remain unaltered, the evidence is admissible.”
Cardenas, 864
F.2d at 1532.
In the present case, the court conducted a full
evidentiary hearing prior to trial on the suppression motion.
During this hearing, chain of custody was established by the
testimony of Harrison, Kara, Beth Plummer, and employees of
Genetic Design, where the blood samples were sent for analysis.
In our view, there was no break in the chain of custody insofar
as the evidence was not unaccounted for in any significant way.
However, the integrity of the evidence was called into question
by the actions of Beth Plummer.
From our review of the evidence
regarding Beth Plummer’s handling of the evidence, we cannot say
that the court abused its discretion in allowing the evidence to
nevertheless be admitted.
See United States v. L’Allier, 838
F.2d 234 (7th cir. 1988).
The testimony of Beth Plummer, Kara,
and Joe Maggi of Genetic Design established that Beth only tore
open the mailing bag and did not open the smaller plastic bags
containing the blood samples.
not been broken.
The seals on the smaller bags had
There was no evidence that the blood samples
had been materially altered; thus, the relevant feature of the
evidence (Sinnott’s alleged blood sample) remained intact.
In
our view, the court properly allowed Beth Plummer’s actions to go
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to the weight of the evidence.
If the jury had believed the
defense theory of the case that Beth Plummer had somehow
substituted another blood sample for Sinnott’s, they were free to
do so.
Accordingly, the trial court did not err in denying
Sinnott’s motion to suppress.
Sinnott next argues that the court erred in failing to
grant a mistrial because of juror bias.
Sinnott maintains that
a T-shirt worn by the foreman of the jury on the last day of
trial which contained the message “I’m sleeping with a married
woman” on the front, and “My wife” on the back, demonstrated this
juror’s bias.
Counsel for Sinnott did not call the court’s
attention to the juror’s T-shirt until after the jury had
returned from deliberating Sinnott’s sentence; counsel claimed
that he did not see the shirt until the jurors were retiring to
deliberate the sentence.
The trial judge and the prosecutor both
stated that they had not noticed the shirt.
After the sentence
had been announced and the jurors had returned to the jury room,
the judge confronted the juror in question on the record and
asked to him take off his jacket so that he could see the message
on the shirt.
The juror stated that his wife had bought him the
shirt two years ago and that he did not mean anything by it.
Two
days after the judgment of conviction had been entered, Sinnott’s
counsel moved for a judgment NOV or new trial on the grounds of
juror bias.
The court denied said motion.
Upon reviewing the record, we do not see that Sinnott’s
counsel ever moved for a mistrial.
At the time Sinnott’s
counsel first called the court’s attention to the T-shirt, he
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specifically stated that he was not making any motion at that
time.
Thus, Sinnott’s argument that the court should have
granted a mistrial was not preserved.
See Jenkins v.
Commonwealth, Ky., 477 S.W.2d 795 (1972).
As to the court’s
failure to grant a new trial or judgment NOV on grounds of juror
bias, it has been held that a defendant seeking to prove juror
bias must demonstrate the actual existence of such an opinion in
the mind of the juror as will raise a presumption of partiality.
United States v. Howard, 752 F.2d 220 (6th Cir. 1985), cert.
denied, 472 U.S. 1029, 105 S. Ct. 3506, 87 L Ed. 2d 636 (1985),
vacated on other grounds, 770 F.2d 57 (6th Cir. 1985).
It is
within the trial court’s discretion to determine partiality and
bias from particular circumstances.
Bowling v. Commonwealth,
Ky., 942 S.W.2d 293 (1997), cert. denied, _____ U.S. _____, 118
S. Ct. 451, 139 L. Ed. 2d 387 (1997).
Given the juror’s
assurance that he had no ill intent in wearing the shirt and the
fact that there was no evidence of prejudice resulting from the
shirt, we cannot say the trial court abused its discretion in
refusing to grant a new trial or a judgment NOV because of the
shirt.
Sinnott’s next assignment of error is that the court
should not have admitted the records of the telephone calls
between Sinnott, Harrison, and Gee.
Sinnott maintains that the
records were admitted in violation of KRE 803(6) because they
were not admitted through the testimony of the original custodian
of the records.
The telephone records were admitted at trial
through the testimony of Robert Chatum, an employee of General
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Telephone (G.T.E.) in Lexington.
Chatum testified that he was an
in-house investigator and a custodian of records for G.T.E.
He
testified that the records are kept in Tampa, Florida, and were
sent to him for review so that G.T.E. could comply with the
subpoena for official records in this case.
A document was
admitted through the testimony of Chatum stating that the records
were originally pulled by Jet Brantley, an employee of G.T.E. in
Tampa, and sent to the Attorney General’s Office and that the
information was an accurate representation of the records that
G.T.E. maintains in the normal course of business.
At trial,
Sinnott objected to the admission of the records on the grounds
that the records were not authenticated by the original custodian
of the records, Jet Brantley.
KRE 803(6) states that records
kept in the course of a regularly conducted business activity can
be admitted “by the testimony of the custodian or other qualified
witness”.
In our view, even if Chatum was not the actual
custodian of the telephone records in this case, he certainly was
a qualified witness.
Accordingly, this argument is without
merit.
Sinnott also complains that the telephone records were
not materially relevant to any issue in the case.
We disagree.
The personal relationship and collusion between Sinnott and
Harrison was a significant part of the circumstantial evidence in
this case.
The telephone calls at issue tended to prove the
existence of this relationship and that they were communicating a
great deal during the time the first paternity test was being
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planned and administered.
relevant.
Thus, this evidence was clearly
KRE 401.
Sinnott next claims that it was error to admit the
evidence of sexual relations between Sinnott and various other
women.
During the course of the trial, it was revealed that
Sinnott had sexual relationships with Kara, Harrison, and Tara
Evans.
It was obviously necessary to make reference to Sinnott’s
sexual relationship with Kara since the entire case centered
around her paternity action against Sinnott.
Likewise, as stated
earlier, it was necessary to establish the personal relationship
between Sinnott and Harrison, which included a sexual
relationship.
The relationship with Tara Evans was elicited
during the testimony of Evans.
Evans testified that one time
during her relationship with Sinnott they went to Sinnott’s home.
While there, she heard a message on his answering machine from
Harrison’s husband questioning Sinnott about his relationship
with Harrison’s wife.
The purpose of this testimony was not to
prove the sexual relationship between Evans and Sinnott but
rather to prove the relationship between Sinnott and Harrison,
which we have already adjudged to be warranted.
As we do not
believe that the evidence of the sexual relationship between
Evans and Sinnott was unduly prejudicial, it was not error to
admit this testimony.
KRE 403.
Sinnott’s next assignment of error is with regard to
one witness’s testimony about a photograph of a nude male.
The
polaroid photograph in question, which was not produced at trial,
was purportedly of a dark-skinned nude male from the waist down
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with an erection.
Apparently, no part of the man’s head could be
seen in the photo.
Patricia Logan, one of Harrison’s co-workers,
testified that Harrison showed said picture to her at work and
told her the male in the picture was the father of her friend’s
baby.
According to Logan, Harrison asked her to tell Harrison’s
husband that the photograph was of Logan’s husband if Harrison’s
husband called and asked Logan about the picture.
The
Commonwealth then showed Logan the polaroid picture of Sinnott
taken for the first blood test and asked Logan if there were any
resemblances in the pictures.
Logan replied that they appeared
to be pictures of the same person and the backgrounds were
similar.
Sinnott objected to this testimony, arguing that it was
irrelevant, unreliable, untrustworthy, and lacked credibility.
There was no evidence that Logan knew Sinnott or that
she could even identify him with clothes on.
Thus, we do not
know how she could then say with any certainty that the male in
the headless nude photograph was the same person as in the other
photograph (of Sinnott) wherein the male was fully clothed and
she could see his face.
Hence, we agree that the testimony was
inherently unreliable and lacked credibility.
See Pickard
Chrysler, Inc. v. Sizemore, Ky. App., 918 S.W.2d 736 (1995);
Askew v. Commonwealth, Ky., 768 S.W.2d 51 (1989).
The next issue
we must now determine is whether this error was reversible or
harmless.
RCr 9.24 provides that no error in the admission of
evidence will be grounds for reversal unless it affected the
substantial rights of the complaining party.
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In our view,
Sinnott was not unduly prejudiced by the admission of the
testimony at issue because there was other evidence of the
relationship between Sinnott and Harrison, which was apparently
the reason the Commonwealth proffered the testimony regarding the
nude photograph (to show that Harrison and Sinnott were
intimately involved at the time of the paternity test.)
There
was the evidence of telephone calls between Harrison and Sinnott.
Further, there was testimony from three other witnesses
indicating that Harrison and Sinnott were intimately involved.
Tara Evans testified about the message on Sinnott’s answering
machine from Harrison’s husband questioning the relationship
between the two.
Brie Frye testified that she saw Harrison’s car
at Sinnott’s house and that Harrison had told her that she was
involved with Sinnott.
Finally, Sherry Jordan, a co-worker of
Harrison’s, testified that Sinnott came to visit Harrison at the
medical center at least four times.
together for about thirty minutes.
took a shower after he left.
On one occasion, they left
On two occasions, Harrison
Accordingly, we believe the
admission of Logan’s testimony was harmless error.
Sinnott’s remaining argument claiming cumulative error
must fail since we have determined only one error was committed,
which we deemed to be harmless.
For the reasons stated above,
the judgment of the Lewis Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Scott C. Cox
Paul J. Neel, Jr.
Louisville, Kentucky
A. B. Chandler, III
Attorney General
William L. Daniel, II
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Assistant Attorney General
Frankfort, Kentucky
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