Hale v. State

• Decision Date: 11 October 2002
• Citation: 848 So.2d 224
• Parties: Anthony Jermaine HALE f/n/a Anthony Jerome Hale v. STATE of Alabama.
• Court: Alabama Supreme Court

848 So.2d 224

Anthony Jermaine HALE f/n/a Anthony Jerome Hale v. STATE of Alabama.

1010196.

Supreme Court of Alabama.

October 11, 2002.

John W. Beck, Fairhope, for appellant.

William H. Pryor, Jr., atty. gen., and E. Vincent Carroll, deputy atty. gen., for appellee.

PER CURIAM.

The defendant Anthony Jermaine Hale was indicted for, tried for, and convicted of unlawful distribution of marijuana (§ 13A-12-211, Ala.Code 1975). After a sentencing hearing, the trial court sentenced Hale, as an habitual felony offender with one prior felony conviction, to the maximum of life imprisonment (§ 13A-5-9(a)(2), Ala. Code 1975), plus an additional ten years' imprisonment pursuant to the schoolyard and public housing project enhancement statutes (§§ 13A-12-250 and 13A-12-270, Ala.Code 1975, respectively). Hale filed a postjudgment motion for a reduction of his sentence on the sole ground that it was excessive, cruel, and unusual in violation of his federal and state constitutional rights. The trial court denied the motion. Upon Hale's appeal, the Court of Criminal Appeals recused, and the appeal was transferred to this Court pursuant to § 12-3-14, Ala.Code 1975.

The defendant Hale argues three issues, which we will explain, analyze, and decide. The conviction and sentence will be affirmed.

I. Chain of Custody

Procedural Facts

At trial, Hale objected to the offer of marijuana and a certificate of analysis, offered by the State pursuant to § 12-21-300 et seq., Ala.Code 1975, on the sole ground that the State had failed to prove the requisite chain of custody and thus had failed to establish a proper predicate for the admission of this evidence. Hale did not challenge this evidence on the ground that § 12-21-300 et seq. was unconstitutional either because it shifted the burden of proof to him, Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), or because it violated his right to confront witnesses against him, California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), or because it violated any other constitutional guarantee. Nor did Hale challenge the form or content of the certificate of analysis itself for noncompliance with § 12-21-300.

Issue

Hale argues that, because the two Department of Forensic Sciences ("DFS") employees who exercised custody over the evidence bag containing a plastic bag of plant material did not testify to the safeguarding and handling of the evidence bag and its contents at DFS and because the certificate of analysis itself does not prove the safeguarding and handling of this evidence at DFS, a link is missing from the chain of custody of this evidence, and the predicate for the admission of this evidence is insufficient.

Substantive Facts

Deputy Darryl Holsenback testified that he purchased a "plastic sandwich bag that contain[ed] what look[ed] like marijuana" from Hale for twenty dollars on June 4, 1998. Thereafter, Deputy Holsenback met Deputy Donnie Payne, who had monitored the sale through audio equipment, at a predetermined location, and they placed the plastic sandwich bag in an "evidence bag," sealed the evidence bag, and initialed it. Deputy Payne testified that he then gave the sealed evidence bag to Lieutenant Charlie Jones. Lieutenant Jones testified that, upon his receipt of the sealed evidence bag, he placed it in an evidence locker until he removed the bag to transport it to DFS in Mobile, Alabama. Once Jones arrived at DFS on June 11, 1998, he gave the sealed evidence bag to Gary Wallace, an employee at DFS. Jones stated that he retrieved the evidence bag from DFS on September 16, 1998. He said that the bag was "in the same or substantially the same condition as it was in when [he] first dropped it off." He stated that the bag, with a certificate of analysis attached to it, "had been opened across the bottom and then heat-sealed when the analysis was complete, [and] forensic analysts [had] placed initials across the seal where they had opened it."

The certificate of analysis admitted at trial reads:

"ALABAMA DEPARTMENT OF FORENSIC SCIENCES "P.O. Box 7925 2451 Fillingim St "Mobile, Alabama 36670 Mobile, Alabama 36617 "(334) 471-7026 Facsimile (334) 470-5816 "CERTIFICATE OF ANALYSIS "BCSO C. Jones "P.O. Box 2199 "Robertsdale, Al 36567 "CASE NUMBER: 98MB04931 SUBMITTING CASE NUMBER: XXXXXXXXXX "SUSPECT(S) RACE SEX BIRTH DATE STATUS "Unknown B M [none given] Unk "SERVICE REQUESTED: Identify "CHAIN OF CUSTODY "RELINQUISHED BY: RECEIVED BY: DATE TIME "C. Jones J.G. Wallace 06/11/1998 11:34 "J.G. Wallace Dameon C. Hutto 06/11/1998 11:34 "DESCRIPTION OF EVIDENCE "One sealed plastic pouch containing one plastic bag containing plant material. "DATES OF ANALYSES: 06/24/1998-06/24/1998 "RESULTS OF ANALYSES "Laboratory analyses revealed the plant material to be Marihuana [sic]. Weight is 2.15 grams or 0.07 ounces. "Sworn to and subscribed before me this the 29th Day of June 1998 as a true and correct copy "/s/Dameon C. Hutto /s/Sharon D. Campbell "Dameon C. Hutto Sharon D. Campbell "FORENSIC SCIENTIST Notary Public "Analyst My Commission expires 7/28/2001"

Neither Dameon Hutto nor Wallace testified at trial. No testimony or other evidence tended to prove that Hutto safeguarded the content of the inner bag against its being exchanged for other evidence, mixed with other evidence, or changed in condition.

Law

Section 12-21-13, Ala.Code 1975, provides:

"Physical evidence connected with or collected in the investigation of a crime shall not be excluded from consideration by a jury or court due to a failure to prove the chain of custody of the evidence. Whenever a witness in a criminal trial identifies a physical piece of evidence connected with or collected in the investigation of a crime, the evidence shall be submitted to the jury or court for whatever weight the jury or court may deem proper. The trial court in its charge to the jury shall explain any break in the chain of custody concerning the physical evidence."

(Emphasis added.) This statute, by its terms, applies only to "[p]hysical evidence connected with or collected in the investigation of" the charged crime. To invoke the statute the proponent of the evidence must first establish that the proffered physical evidence is in fact the very evidence "connected with or collected in the investigation." Moreover,

"[i]n Land v. State, 678 So.2d 201 (Ala.Cr.App.1995), aff'd, 678 So.2d 224 (Ala.1996), a case which appears to rely on § 12-21-13, this court ruled that where a witness can specifically identify the evidence, and its condition is not an issue in the case, then the State is not required to establish a complete chain of custody in order for the evidence to be admitted into evidence. We stated: `The eyeglasses were admissible without establishing a chain of custody because [the testifying officer] was able to specifically identify them, and their condition was not an issue in the case.' Land, 678 So.2d at 210....

"`....'

"The evidence in Lee's case cannot be admissible under § 12-21-13, Ala.Code 1975, because no witness directly testified at trial that the substance tested by [DFS] was the same substance Lee had sold to Larimer. Moreover, the condition of the substance, i.e., whether it was a cocaine, was the crux of the case. Therefore, because there were missing links in the chain of custody, the trial court erred in admitting the substance into evidence over Lee's chain-of-custody objection."

Lee v. State, 748 So.2d 904, 912-13 (Ala. Crim.App.1999) (emphasis added). Because no witness in the case before us could otherwise identify the content of the inner bag in the evidence bag as marijuana, forensic testing was necessary. Therefore, § 12-21-13 does not apply to eliminate the need of the State to prove an unbroken chain of custody of the evidence bag and its contents.

"`Proof of [an] unbroken chain of custody is required in order to establish sufficient identification of the item and continuity of possession, so as to assure the authenticity of the item. In order to establish a proper chain, the State must show to a `reasonable probability that the object is in the same condition as, and not substantially different from, its condition at the commencement of the chain.'"

Ex parte Holton, 590 So.2d 918, 919-20 (Ala.1991) (citations omitted).

"`[W]hen dealing with a controlled substance, "the law is concerned with tracing the integrity of the substance only up through the completion of the analysis." Congo v. State, 409 So.2d 475, 479 (Ala.Crim.App.1981),

cert. denied, 412 So.2d 276 (Ala.1982). "An alteration or substitution of the items after [the expert] finished [his] analysis and comparison would, therefore, have been immaterial." Blanco v. State, 485 So.2d 1217, 1219 (Ala.Crim. App.1986).'"

Land v. State, 678 So.2d 201, 212 (Ala. Crim.App.1995), aff'd, 678 So.2d 224 (Ala. 1996) (quoting Parker v. State, 587 So.2d 1072, 1089 (Ala.Crim.App.1991) (emphasis added)).

This Court has explained the links and elements of a valid chain of custody of evidence:

"The chain of custody is composed of `links.' A `link' is anyone who handled the item. The State must identify each link from the time the item was seized. In order to show a proper chain of custody, the record must show each link and also the following with regard to each link's possession of the item: `(1) [the] receipt of the item; (2) [the] ultimate disposition of the item, i.e., transfer, destruction, or retention; and (3) [the] safeguarding and handling of the item between receipt and disposition.' Imwinklereid, The Identification of Original, Real Evidence, 61 Mil. L.Rev. 145, 159 (1973).

"If the State, or any other proponent of demonstrative evidence, fails to identify a link or fails to show for the record any one of the three criteria as to each link, the result is a `missing' link, and the item is inadmissible. If, however, the State has shown each link and has shown all three criteria

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