Jenkins v. State

• Decision Date: 20 December 1993
• Docket Number: No. 55S00-9207-CR-602,55S00-9207-CR-602
• Citation: 627 N.E.2d 789
• Parties: Rickey JENKINS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 789

627 N.E.2d 789

Rickey JENKINS, Appellant, v. STATE of Indiana, Appellee.

No. 55S00-9207-CR-602.

Supreme Court of Indiana.

Dec. 20, 1993.

Rehearing Denied March 1, 1994.

William Van Der Pol, Jr., McNutt, Hurt & Blue, Martinsville, for appellant.

Pamela Carter, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., for appellee.

GIVAN, Justice.

Appellant was tried by jury and convicted of one count of Murder, two counts of Felony Murder, one count of Rape, one count of Child Molesting, and was found to be a habitual offender. He was sentenced to a term of sixty (60) years on the murder conviction, which was enhanced by thirty (30) years due to the habitual offender finding. Appellant received a twenty (20) year consecutive sentence for the rape of the victim.

The facts are: On September 14, 1991, Jeanie Whitman, the 15-year-old victim in this case, and her friend, Michael Cloud, went to appellant's home. They rode with him when he took Delores McGarr home. Prior to leaving, appellant took Jeanie aside and said something to her. After that exchange, Jeanie told Aline Kingery, appellant's girlfriend, that her boyfriend was weird. During the trip, appellant allowed both Cloud and Jeanie to drive his car. Appellant suggested that Jeanie sit in his lap while Cloud drove the car. Jeanie initially refused but eventually complied with the request. When Cloud was driving, he turned around and saw appellant's hand on Jeanie's thigh.

On September 15, 1991, Jeanie spoke with her mother and insisted that she needed to go to appellant's home to tell Kingery something which she could not tell her mother. When Jeanie arrived at appellant's home, appellant and Kingery were preparing for bed. Jeanie left with her mother because she did not have the opportunity to speak privately with Kingery. Jeanie and her mother argued when Jeanie returned to the car. Jeanie then exited the car and returned to appellant's home.

After she arrived at their house, Jeanie tried to get appellant and Kingery to take her for a ride in their car. They refused to do so because it was late in the evening. Jeanie offered to buy a two-liter bottle of Pepsi for them if they would take her home. At approximately 10:30 p.m., appellant agreed to give her a ride. They left without Kingery. Appellant returned to his house at approximately 12:00 to 12:30 a.m. and told Kingery that he had car trouble after dropping off Jeanie near her home. He also told Kingery to say that she had gone with him when he took Jeanie home. Kingery initially told that story due to threats made by appellant. However, when she realized that appellant had lied to her, and faced with the inconsistencies in their stories, she ultimately told the truth.

The next morning, the victim's body was found on the side of a gravel road in rural Morgan County. An autopsy found the cause of death to be a depressed skull fracture. Great force was required to inflict those wounds. There was a bruising pattern across the victim's chest and arm that appeared to be a tire tread pattern. Her injuries were consistent with being run over by a car. The results of the autopsy also revealed conditions consistent with sexual assault.

F.B.I. Special Agent Robert Coffin, a supervisor in the DNA Analysis Unit, testified about how the F.B.I. conducts its DNA testing. He explained that Rick Deeter, a trained lab technician, worked with him in conducting the tests in this case. Deeter performed the actual manipulation of the samples. Coffin conducted the statistical analysis of the DNA testing procedure which was done by Deeter.

Coffin testified that the results of the DNA testing showed that the semen on the victim's underwear was consistent with that of appellant but not with that of her boyfriend. He testified that one of the blood samples from appellant's car was consistent with the victim's blood, but not with that of appellant.

Appellant argues that he was denied the right to confront witnesses testifying against him because the lab technician did not testify at trial. He claims that he was unable to cross-examine Deeter regarding the methods used in the "hands on" portion of the testing.

Every defendant has the right to be confronted by his accusers and by witnesses who will testify against him and has the right to cross-examine them. Denson v. State (1960), 240 Ind. 324, 163 N.E.2d 749. However, the right of confrontation is not absolute and must occasionally give way to considerations of public policy and necessities of the case. Miller v. State (1987), Ind., 517 N.E.2d 64. The failure of the State to call a competent witness does not deny a defendant his constitutional right. Beverly v. State (1989), Ind., 543 N.E.2d 1111. The State cannot be compelled to call witnesses at the instance of the accused. Id. Appellant has the burden of seeing that witnesses who may have aided in his defense are called. Id.

In Reardon v. Manson (2nd Cir.1986), 806 F.2d 39, cert. denied, 481 U.S. 1020, 107 S.Ct. 1903, 95 L.Ed.2d 509, the State called the supervisor of the toxicology laboratory to testify, but did not call the lab technician. Although the scientific data in that case did not involve DNA testing, the procedure was similar. The technician manipulated the samples under the supervisor's direction and followed the established protocols. A similar challenge was made in that case.

The court pointed out that only one of the testing procedures required a subjective evaluation by the technician. The other testing procedures were mechanically objective. The supervisor then drew his own conclusions regarding the testing information. The Court further noted that it was unlikely that a technician would have any independent recollection of the tests conducted by him. He likely would have to refresh his recollection by use of the laboratory notes which he made. These notes were used by the supervisor not only in reaching his conclusion but at trial during his testimony. The testimony from the technician would amount to generalizations concerning the laboratory practices and probabilities concerning the likelihood of error. The Court concluded that there would have been little use in making the technician available for cross-examination.

In the case at bar, we find the failure of the State to call the technician to testify at appellant's trial did not violate his right to confront witnesses testifying against him.

Appellant does not contest the chain of custody of the samples prior to the technician's possession. He does, however, challenge the chain of custody within the F.B.I. laboratory. He contends the absence of testimony by the technician constitutes a break in the chain of custody and that the technician's failure to testify deprived him of the opportunity to challenge the F.B.I. testing procedures.

The party offering the challenged evidence need only provide "reasonable assurance" that the evidence passed through various hands in an undisturbed condition. Kennedy v. State (1991), Ind., 578 N.E.2d 633. The proponent need only provide evidence that "strongly suggests" the exact whereabouts of the evidence at all times. Id. When appellant challenges the chain of custody, he must present evidence which does more than raise "a mere possibility" that the evidence was tampered with, altered, or substituted. Id. Therefore, a perfect chain of custody need not be established by the State. Id. Any gaps in the chain go to the weight given to the evidence and not to the admissibility of the evidence. Id.

Federal Rule of Evidence 901(a) provides 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."

Appellant does not claim that someone in the F.B.I. laboratory tampered with, altered, or caused a substitution in the samples in the case at bar. He argues that there was a mistake made by the technician during the testing of the samples. He produced two experts regarding the possibility of mistakes in the testing procedure. He claims this testimony satisfies the necessary showing of tampering with the evidence, thereby rendering the evidence inadmissible.

It was for the trier of fact to determine how much weight to give to the testing evidence in light of appellant's expert testimony regarding the alleged error. Tiller v. State (1989), Ind., 541 N.E.2d 885. Moreover, it is the role of the trier of fact to resolve conflicts in testimony. Williams v State (1982), Ind., 439 N.E.2d 1142. On appeal we will not reweigh the evidence nor will we reassess the credibility of witnesses. Braswell v. State (1990), Ind., 550 N.E.2d 1280.

We have held that there is a presumption that public officials discharge their duties with due care. Kennedy, supra. Moreover, we have held that there is a presumption of regularity in the handling of exhibits by public officers. Id. We also have held that whether the actual techniques involved were followed goes to the weight given to the evidence and not to the admissibility of that evidence. Davidson v. State (1991), Ind., 580 N.E.2d 238.

The State called the supervisor to testify and the technician's notes were admitted in evidence under the business record exception to the hearsay rule. Appellant claims that the notes do not fall under this exception.

Assuming for the sake of argument that the laboratory notes do not fall under the business record exception to the hearsay rule, no error occurred here. An expert is allowed to base an opinion on facts or data that are not admissible in evidence if they are of the type reasonably relied upon by experts in the field. McElroy v. State (1992), Ind.App., 592 N.E.2d 726, trans. denied; see Ind.Rules of Evidence, Rule 703. The notes are made by a technician who follows established protocols during the testing procedure. Laboratory notes of that kind are used by every supervisor...