DAVID HUSBAND v. JAMES L. MORGAN, WARDEN; DOUG SAPP, COMMISSIONER, DEPARTMENT OF CORRECTIONS; AND LT. JULIE PHILLIPS, INSTITUTIONAL ADJUSTMENT OFFICER
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RENDERED:
SEPTEMBER 14, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002806-MR
DAVID HUSBAND
v.
APPELLANT
APPEAL FROM BOYLE CIRCUIT COURT
HONORABLE DARREN W. PECKLER, JUDGE
ACTION NO. 00-CI-00366
JAMES L. MORGAN, WARDEN; DOUG SAPP,
COMMISSIONER, DEPARTMENT OF CORRECTIONS;
AND LT. JULIE PHILLIPS, INSTITUTIONAL
ADJUSTMENT OFFICER
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
BARBER, McANULTY, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
Appellant, David Husband, appeals pro se from
an order of the Boyle Circuit Court dismissing his motion for
declaratory judgment.
As prison authorities failed to establish
a proper chain of custody for appellant's urine sample, we
reverse and remand.
On July 1, 2000 a urine sample was taken from
appellant, an inmate at Northpoint Training Center.
The sample
was collected by Corrections Officer Robert Sheene, Jr., and
witnessed by Corrections Officer John Dean.
The sample was sent
to the testing agency, LabCorp, which reported that it tested
positive for benzodiazepines.
As a result, appellant was charged
with unauthorized use of drugs or intoxicants.
A hearing was
held on July 17, 2000, at which appellant stated that he was
previously on a drug that would cause a positive test result.
The adjustment officer found appellant guilty of unauthorized use
of drugs or intoxicants, and imposed a penalty of 60 days
forfeiture of good time, 120 days restricted visitation, and 45
days disciplinary segregation, suspended for 150 days.
Warden
James L. Morgan concurred with the adjustment officer's decision
following administrative appeal.
On August 31, 2000, appellant filed a motion for
declaratory judgment in the Boyle Circuit Court, alleging that
the chain of custody of the urine sample was defective.
Appellant further claimed that he was denied the right to call
witnesses during the adjustment proceedings, and that no
investigation was conducted to determine the effect of
medications on the test.
Appellant contended that the
aforementioned errors violated his rights to due process and
equal protection.
On November 17, 2000, the court entered an
order dismissing the motion.
This appeal followed.
The Correction Cabinet's Policy and Procedure
15.8(VI)(C), regulating chain of custody of a urine sample,
states as follows:
C.
Chain of Custody
1. A Chain of Custody form shall be properly
filled out by the staff who collected the
urine sample.
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2. Each time the sample is released, the
person releasing the sample shall legibly
sign, not initial, the Chain of Custody
indicating date and time of release.
3. Each time the sample is received, the
person receiving the sample shall:
a.
sign the Chain of Custody;
b.
indicate date and time of receipt;
and
c. [sic] whether or not the seal is
intact.
4. Each time the sample is received or
released from an inanimate object including a
locked security box, mail pouch or mail room,
the form shall be signed on behalf of the
object below the name of the object.
5. An institution that utilizes any outside
delivery agent to deliver a urine sample to
the laboratory shall ensure that the sample
is released to the delivery agent by
signature of staff packaging the sample.
6. The laboratory personnel conducting the
testing shall sign and date the Chain of
Custody certifying:
a.
that the seal is intact; and
b. that the name and number on or in the
specimen bottle matches the name and number
on the Chain of Custody form.
7. The laboratory shall indicate on the
Chain of Custody which substance the urine
sample tested positive for, if any.
A review of the "Chain of Custody" form contained in
the record indicates a failure to comply with the requirements of
CPP 15.8(VI)(C) with regard to the release and receipt of the
sample.
Section 6 of the form, where release and receipt are to
be recorded beginning with the donor and collector, indicates
that on July 1, 2000, a urine specimen was collected from
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appellant by Officer Sheene.
The second entry in this section,
also dated July 1, 2000, indicates that the specimen was released
on that date by Officer Sheene, but does not indicate to whom.
Rather, in the corresponding space for name and signature of
recipient, is printed the word "Lab Corp", with the purpose of
the change in custody listed as "sent to lab".
The third, and
last, entry in Section 6 is dated July 4, 2000, and indicates
that someone received the specimen on that date.
The recipient's
name and signature are illegible, and no purpose for the change
in custody is listed.
In a separate section, the chain of custody form was
marked to indicate that the pouch and seals were intact upon
receipt by the lab, however, there is no accompanying signature
or date.
CPP 15.8(VI)(C)(6) requires that the laboratory
personnel conducting the testing sign and date the chain of
custody certifying that the seal is intact.
Appellee contends
that "[t]he individual who received the specimen both signed the
chain of custody form and indicated upon the form that the pouch
and seal of the specimen were intact upon testing."
However,
contrary to appellee's assertion, the form does not indicate that
the person who signed the illegible signature in Section 6 as
having received the sample, was also the person who conducted the
testing and marked the form to indicate that the seals were
intact.
Other than the illegible signature in Section 6, no
other signatures of LabCorp personnel appear on the chain of
custody form.
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The record further contains the affidavit of Officer
Dean, stating that after the urine sample was sealed in the pouch
for transport, it was placed in a locking container, located at
the entrance of the institution, to be picked up by a courier and
delivered to the laboratory for testing.
The chain of custody
form does not indicate who received or released the sample from
the lockbox at the prison entrance.
"Although a prison inmate facing administrative
disciplinary proceedings does not have the same procedural
safeguards as does a person facing criminal prosecution . . . ,
[citation omitted], fundamental fairness dictates that the
evidence relied upon to punish him at least be reliable."
v. Ashley, Ky. App., 825 S.W.2d 286, 288 (1991).
Byerly
We conclude
that the aforementioned violations of CPP 15.8(VI)(C) resulted in
a failure by prison authorities to establish a proper chain of
custody of appellant's urine sample.
Where the proof as to chain
of custody does not establish with reasonable certainty that the
specimen tested was the same as that taken from the inmate, any
punishment imposed must be set aside.
Id.
Having concluded that a proper chain of custody was not
established, we need not address appellant's additional
arguments.
For the aforementioned reasons, the order of the Boyle
Circuit Court is reversed and this matter is remanded for entry
of an amended judgment consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
David Husband, pro se
Burgin, Kentucky
-5-
BRIEF FOR APPELLEES:
Rebecca Baylous
Frankfort, Kentucky
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