McElroy v. State

• Decision Date: 27 May 1992
• Docket Number: No. 49A04-9109-CR-282,49A04-9109-CR-282
• Citation: 592 N.E.2d 726
• Parties: John Vincent McELROY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 726

592 N.E.2d 726

John Vincent McELROY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A04-9109-CR-282.

Court of Appeals of Indiana,

Fourth District.

May 27, 1992.

Transfer Denied July 16, 1992.

John F. Crawford, Indianapolis, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

CONOVER, Judge.

Defendant-Appellant John Vincent McElroy appeals his convictions and sentences for Rape, a class A felony (IND.CODE 35-42-4-1(a)), two counts of Battery, a class C felony (IC 35-42-2-1), three counts of Robbery, a class B felony (IC 35-42-5-1), and three counts of Confinement, a class B felony (IC 35-42-3-3).

We affirm.

McElroy raises the following restated issues for our review:

1. whether the State established a sufficient evidentiary foundation for the admission of genetic typing (DNA) evidence 2. whether the trial court erred in admitting laboratory notes, reports, and exhibits into evidence;

3. whether the State established a sufficient chain of custody to support the admission of blood and clothing evidence used for DNA comparison;

4. whether separate sentences for the Robbery and Confinement convictions violated double jeopardy;

5. whether consecutive sentences for the Robbery and Confinement offenses violated double jeopardy; and

6. whether the sentence of one hundred and eighty-six years imprisonment was manifestly unreasonable and constitutionally disproportionate to the nature of the offenses.

At about 9:00 p.m. on the evening of June 5, 1989, the last patient left the Indianapolis dental office of Dr. Charles Solomon. Inside the office were three female employees, C.R., the receptionist, J.C., a dental assistant, and L.G., a dentist. At about 9:30 p.m., the front door flew open and four men entered wearing masks. One held a gun. He pointed the gun at C.R. and told her to "shut up and get on the floor." (R. 369).

One of the men removed C.R.'s pants and underwear and placed his hand in her vagina. Two of the men began hitting and kicking J.C. and L.G. Later, one of the men raped J.C. Another attempted to rape L.G., but she fought him off.

After beating and molesting the women, the men threw all three victims into a room and told them not to leave. The men then fled with the victims' purses and money from the cash drawer.

McElroy was identified as one of the four men by an informant, Edward A. Hefley, and co-defendant Lawrence D. Seawood. Seawood testified that in the dentist's office McElroy stated "let's get the girls." (R. 690). McElroy and the other two men each grabbed a woman. Seawood remained in the lobby area as a lookout. Seawood did not see what McElroy did with the woman he grabbed. However, on the next day while they read about the incident in the newspaper, McElroy told Seawood he engaged in intercourse with J.C. (R. 718).

McElroy was charged with Rape, Criminal Deviate Conduct, three counts of Robbery, three counts of Confinement, and two counts of Battery. He was not convicted on the Criminal Deviate Conduct count; however, he was convicted of all the other offenses. He was sentenced to fifty years for Rape, twenty years for each Robbery conviction, twenty years for each Confinement conviction, and eight years for each Battery conviction. All sentences were to run consecutively. The total sentence was for one hundred and eighty-six years imprisonment. ¹

Additional facts are given below as necessary.

As part of its case against McElroy, the State presented DNA identification evidence which showed the odds were twenty million to one that he committed the rape. McElroy contends the State failed to lay an evidentiary foundation to establish the reliability of the particular method of DNA identification used in the present case. He specifically contends the jury was deprived of the opportunity to resolve the issue of reliability because a biological science technician who participated in the procedure did not testify.

At trial, Harold Deadman, a Federal Bureau of Investigation agent, testified as an expert witness on DNA identification. He was the supervisor of a two person DNA analysis team at the FBI lab which analyzed semen found on J.C.'s clothing. Alice Hill, a biological science technician, was the other member of the analysis team, and worked under Agent Deadman's direct supervision according to a standardized protocol which permitted no deviation. Hill consulted with Agent Deadman on anything out of the ordinary. Hill kept the same type of detailed, standard notes on the procedures in the present case as she had produced in at least two hundred and fifty other cases. Agent Deadman testified to his interpretation of data gained through the team's analysis. He also testified regarding proper procedure, Hill's activities under his supervision, and the use of her lab notes in reaching his conclusions.

In examining this issue it is important to note McElroy is not questioning the reliability of DNA identification in general. In fact, he states in his brief that the issue specifically relates to the reliability of the method used in the present case. Agent Deadman clearly established what the standard procedures for DNA identification were. He also established he and his assistant followed standard procedure in the instant case, without any deviation. Furthermore, contrary to McElroy's contention that Agent Deadman improperly relied on information from an "outside source," it is clear he relied only on information gleaned under his direct supervision. This type of information was routinely relied upon in arriving at a conclusion on the identification of the source of a sample. This evidence was admissible as the basis for Agent Deadman's conclusions. See, Miller v. State (1991), Ind., 575 N.E.2d 272, 274 (holding that even inadmissible hearsay is admissible if of the type generally relied upon by experts in the field).

McElroy also contends the trial court erred in allowing a DNA membrane, autoradiographs (autorads), and laboratory notes into evidence. ² He contends the evidence was inadmissible hearsay which could not qualify for admission as business records.

Even assuming the evidence could not qualify for admission under the business records exception, the testimony reflecting their factual content was admissible as the basis for Agent Deadman's conclusions. The evidence was of the type customarily relied on by experts such as Agent Deadman. Consequently, any error in the admission of the evidence was harmless because the essentials of the challenged evidence were properly admitted through Agent Deadman's testimony. See, Wilber v. State (1984), Ind., 460 N.E.2d 142, 143; Clouse v. Fielder (1982), Ind.App., 431 N.E.2d 148, 155.

McElroy further contends the chain of custody for blood and clothing evidence used for DNA identification was broken by the failure of the laboratory technician to testify. He limits his argument to the State's alleged failure to prove the chain of custody within the FBI laboratory.

In Kennedy v. State (1991), Ind., 578 N.E.2d 633, cert. denied, --- U.S. ----, 112 S.Ct. 1299, 117 L.Ed.2d 521 (1992), our supreme court was faced with the exact same issue. The court held:

The evidence in question was gathered from the scene and mailed to the FBI laboratory for analysis. An FBI lab technician who prepared the evidence on slides for examination by [supervisors] Deedrick and Corby was not called as a witness to testify about the chain of custody. Instead, Deedrick testified that, although he did not stand next to the technician while the evidence was prepared, the technician worked under Deedrick's control and supervision, and that the use of technicians in this way had been standard procedure at the FBI for forty years. Kennedy challenges the chain of custody only within the FBI laboratory; he does not dispute that the State presented sufficient chain of custody evidence to establish transfer of the evidence from the place it was gathered to the FBI laboratory.

In Indiana, the party offering the evidence need only provide "reasonable assurance" that the evidence passed through various hands in an undisturbed condition, and need only provide evidence that "strongly suggests" the exact whereabouts of the evidence at all times. Defendant must then present evidence which must do more "than raise the mere possibility that the evidence could have been tampered with or that a substitution or alteration could have been made." Thus, the State need not establish a perfect chain of custody, and any gaps go to the weight of the evidence and not its admissibility. In addition, there is a presumption of regularity in the handling of exhibits by public officers, and a presumption that public officers discharge their duties with due care. Here, we conclude that the State sufficiently established that customary procedures were followed by the FBI. We are satisfied that there is the required reasonable assurance that the property moved through the hands of the FBI agents in an undisturbed condition, and that the evidence strongly suggests the exact whereabouts of the evidence during the time it was in the possession of the FBI. Accordingly, we find no error in the admission of the evidence. (Citations omitted).

578 N.E.2d at 638-639.

In the present case, Agent Deadman testified that the evidence was handled according to standard procedure within the FBI laboratory. The incoming samples were assigned to the two person team of Agent Deadman and Hill; no other team handled the samples. The blood samples were kept in the team's padlocked freezer except when being tested by the team. Under Kennedy, Agent Deadman's testimony was sufficient to establish chain of custody in the face of a challenge raising only the mere possibility of tampering, substitution, or alteration.

McElroy next contends sentences for both Confinement and Robbery violate double...