Mahan v. State, 6 Div. 596

• Citation: 508 So.2d 1180
• Decision Date: 14 October 1986
• Docket Number: 6 Div. 596
• Parties: Dale Elize MAHAN and Ronnie Benjamin Mahan v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1180

508 So.2d 1180

Dale Elize MAHAN and Ronnie Benjamin Mahan v. STATE.

6 Div. 596.

Court of Criminal Appeals of Alabama.

Oct. 14, 1986.

Rehearing Denied Nov. 12, 1986.

Certiorari Quashed June 19, 1987

Alabama Supreme Court 86-272 and 86-273.

Carl Wade Robinson, Bessemer, for appellant Ronnie Mahan.

Dan C. King III, Bessemer, for appellant Dale Mahan.

Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.

McMILLAN, Judge.

The appellants, Dale Elize Mahan and Ronnie Benjamin Mahan, were found guilty of the offenses of rape in the first degree and kidnapping in the second degree. They were sentenced to twenty years in the penitentiary for the kidnapping charge, and thirty-five years for the rape charge, the sentences to run concurrently. The victim was Christmas shopping and was returning to her vehicle, when she was abducted and raped. Upon arriving at her car, one man grabbed her from behind while another grabbed her, and she was forced into her car and blindfolded. She was driven to a location in Bibb County by the two men, who were wearing stockings over their heads. When the car reached its destination, the two assailants began drinking beer and smoking marijuana and forced the victim to participate. The victim was then told to remove her clothing and upon refusal, she was burned with a cigarette, and the younger assailant began ripping at her clothing. She was then sexually assaulted and raped a number of times. At one point as she was fighting back, one of the assailants hit her in the face, with his fist breaking off a tooth. After approximately five to six hours, she was driven to the freeway; the abductors left her there in her automobile and told her not to get up, at the risk of harm to her "pretty little girl." A short time later, the victim put her clothes on and drove to the Bessemer Police Station, where pictures were taken of her face and chest area. She was then driven to a hospital, where a rape kit was obtained. Several days later, the victim's purse was found about a mile from where the incident occurred. The victim was later able to identify the two assailants, as they had pushed the stockings over the bridges of their noses during part of the incident.

I

The appellants contend the trial court erred by overruling their challenges of seven of the jurors for cause, based on their preconceived opinions as to their guilt. The appellants' ground for this claim was that seven of the potential jurors responded that they believed that the appellants would have to prove their innocence of the offense of which they had been charged. The trial court followed with an instruction that it was a principle of law and a presumption that defendants are innocent and must be proven guilty beyond a reasonable doubt and to a moral certainty and further that the burden of proof lies with the State. The court also instructed that the jury must not infer anything from the fact that the defendant does not testify. Thereafter, the attorney for Ronnie Mahan made challenges for cause as to the seven potential jury members. In order to determine the validity of the challenges, the trial court again addressed those persons challenged by asking if each and every one understood the principle of law that the burden is on the State and there is no burden on the defendant. The court asked whether anyone would have any difficulty following the instructions that the defendants are presumed innocent and that the burden is upon the State to prove their guilt. In response to the trial judge's request, no potential juror raised his hand to indicate that he would have such difficulty. The challenges were denied and the defendants were given an exception to the ruling.

The trial court must ensure that the case is heard by an unbiased jury. Howell v. City of Birmingham, 383 So.2d 567 (Ala.Cr.App.), cert. denied, 383 So.2d 570 (Ala.), cert. denied, 449 U.S. 937, 101 S.Ct. 336, 66 L.Ed.2d 160 (1980). "A party may have a prospective juror removed for cause if he establishes that the juror has a 'fixed opinion as to the guilt or innocence of the defendant which would bias his verdict.' Section 12-16-150(7), Code of Alabama (1975). Proof that the juror has a bias or fixed opinion is not, of itself, sufficient. The party seeking to have the juror disqualified must further demonstrate that the juror's opinion is so fixed that it would bias his verdict. Clark v. State, 443 So.2d 1287 (Ala.Cr.App.1983); Nobis v. State, 401 So.2d 191 (Ala.Cr.App.1981), cert. denied, 401 So.2d 204 (Ala.1981)." Stringfellow v. State, 485 So.2d 1238 (Ala.Cr.App.1986). See also Gwin v. State, 425 So.2d 500 (Ala.Cr.App.1982). " 'To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court....' " Ex parte Grayson, 479 So.2d 76, 80 (Ala.1985), quoting Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751 (1961). Thus, where a juror states that he has opinions but that he would try the case fairly and impartially according to the law and the evidence and that he would not allow his opinion to influence his decision, it is not error for a trial judge to deny a challenge for cause. Howard v. State, 420 So.2d 828, 831 (Ala.Cr.App.1982). "A juror who brings his thoughts out into the open in response to voir dire questions may be the one who later 'bends over backwards' to be fair. The judge was in a position to hear not only the words recorded by the court reporter but also the meaning conveyed by the responding prospective juror. A trial court's ruling on challenge for cause based on bias is entitled to great weight and will not be disturbed on appeal unless clearly shown to be abuse of discretion." Clark v. State, 443 So.2d 1287, 1289 (Ala.Cr.App.1983). See also Ex parte Nettles, 435 So.2d 151, 154 (Ala.1983), and cases cited therein. It is clear from the record that the trial court properly exercised its discretion.

II

The appellant alleges that the trial court committed reversible error in holding that the State had established a proper predicate for the introduction into evidence of the result of blood, chemical, and comparison tests of the clothing, rape kit, and blood and urine samples of the victim. The State, however, rebuts this argument by referring to the facts adduced at trial, which it alleges established a valid chain of custody. Ms. Ruby Chilson, a nurse, testified that she prepared the rape kit and took the blood sample. At trial, she identified each of the exhibits and testified as to their being sealed and marked; she further testified that she turned these items over to Officer Steven Crump. Officer Crump verified the testimony of Nurse Chilson and also claimed that he was present when the clothing in question was taken from the victim and further observed the clothing being placed in a bag and sealed. He testified that he turned all this evidence over to Sergeant James Price. Sergeant Price identified this evidence at trial and testified that he turned the evidence over to Ms. Faye Ogletree and Chip Walls, both of whom corroborated these facts. On the other hand, the appellants base their allegations on the failure of Ms. Carol Paden and the warden at the Bessemer City Jail to testify. The clothing was removed from the victim by Ms. Paden and turned over to Officer Crump, who was present at trial to testify to this fact. The evidence was all ultimately turned over to the warden, who failed to testify.

There must have been no break in the chain of custody of the evidence in order to establish a sufficient predicate for admission. Identification and continuity of possession must be sufficiently established to amply assure the authenticity of the evidence. Ex parte Yarber, 375 So.2d 1231, 1234 (Ala.1979). " 'The pertinent rule is that articles or objects which relate to or tend to elucidate or explain the issues or form a part of the transaction are admissible in evidence when duly identified and shown to be in substantially the same condition as at the time of the offense.' Dennison v. State, 259 Ala. 424, 427, 66 So.2d 552 (1953)." Mauldin v. State, 402 So.2d 1106, 1110 (Ala.Cr.App.1981). The purpose behind the chain-of-custody requirement is to show to a reasonable probability that there has been no tampering with the item of evidence. According to the record in the present case, there is a "remote possibility," that any tampering might have occurred, see Mauldin v. State, supra, and because the warden had the evidence in the prison vault after it had already been tested, any possible tampering would have been immaterial. Congo v. State, 409 So.2d 475, 479 (Ala.Cr.App.1981). "A party need not negative the remotest possibility of substitution, alteration or tampering with the evidence. Lynn v. State, 380 So.2d 366 (Ala.Cr.App.1980); Murrell v. State, 377 So.2d 1102 (Ala.Cr.App.), cert. denied, 377 So.2d 1108 (Ala.1979); Williford v. State, 365 So.2d 1257 (Ala.Cr.App.1978), cert. denied, 365 So.2d 1258 (Ala.1979); Thomas v. State, 356 So.2d 210 (Ala.Cr.App.), cert. quashed, 356 So.2d 214 (Ala.1978)." Mauldin v. State, supra, at 1110. Rather, the evidence "must prove to a reasonable probability that the item is the same as, and not substantially different from, the object as it existed at the beginning of the chain." Slaughter v. State, 411 So.2d 819, 822 (Ala.Cr.App.1981). The testimony and identifications of the State's witnesses were sufficient to establish a proper predicate to admit the evidence.

III

The appellants contend that the trial court committed reversible error in allowing the criminalist to testify as to the results of his analysis of...