Munnerlyn v. State, CR78-138

• Decision Date: 29 January 1979
• Docket Number: No. 2,No. CR78-138,CR78-138,2
• Citation: 576 S.W.2d 714,264 Ark. 928
• Court: Arkansas Supreme Court
• Parties: David MUNNERLYN, Appellant, v. STATE of Arkansas, Appellee

Page 714

576 S.W.2d 714

264 Ark. 928

David MUNNERLYN, Appellant, v. STATE of Arkansas, Appellee.

No. CR78-138.

Supreme Court of Arkansas, Division No. 2.

Jan. 29, 1979.

Rehearing Denied March 5, 1979.

Jeff Duty, Rogers, for appellant.

Bill Clinton, Atty. Gen. by Catherine Anderson, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Appellant was found guilty of the sale of methamphetamines, a controlled substance, on October 27, 1977, sentenced to ten years imprisonment and fined $10,000. Appellant appeals from his conviction, alleging four points for reversal.

Points I and II of appellant's brief both deal with alleged irregularities in the chain of custody of evidence introduced at the appellant's trial in two different samples, which we shall discuss together.

Methamphetamines were introduced into evidence from two sales allegedly made by the appellant, occurring on October 14, 1977 and October 27, 1977. The testimony which furnished the foundation for the introduction of these exhibits was substantially as follows:

Both purchases from the appellant were made by Jimmy Stevens, with money provided specifically for that purpose by Benton County Deputy Sheriff Don Rystrom. Stevens and Rystrom testified that the pills bought on October 14th were delivered in person by Stevens to Rystrom on the same day they were bought. They were in a plastic bag when Rystrom received them. After the pills were bought on October 27th (the sale for which appellant was convicted), Stevens placed a plastic bag containing them in the mailbox outside the Stevens residence and called Rystrom to tell him the pills were in the mailbox. Rystrom retrieved the pills from the mailbox while Stevens watched.

Rystrom followed the same procedure with both parcels he attached a Benton County Sheriff's Department evidence tag which contained a description of the enclosed pills and a case number (R 77-411); each parcel was then sealed in an envelope and mailed to the Drug Laboratory of the Arkansas Department of Health, via certified mail.

Two different chemists employed by the department of health analyzed the pills. One of them, Gary Dallas, testified that the sample he analyzed was taken from a package received in the laboratory on October 20, 1977, by certified mail, bearing the same number given it by Rystrom. The envelope was introduced as Exhibit 1. Exhibit 2 was a plastic bag containing 96 white tablets to which was attached a card on which the words "Benton County Sheriff's Department" and "Case No. R 77-411" had been written by someone in the sheriff's office. Gene Bang, the other chemist, gave similar testimony as to the other sample. It was received on November 9th, 1977. Both testified as to the procedure which is followed when samples from law enforcement agencies are received for testing. The evidence technician, actually a chemist assigned to receive samples, signs the certified mail receipt, notes his or her initials on the package and assigns each package a "lab number," which is written on the package. The sample is placed in a locked room to which only the chemists have access. The sample remains in that room until the lab supervisor assigns it to a particular chemist for analysis. The chemist picks up the sample, performs an analysis, seals the package or envelope with a health department sticker containing the lab number, the date received and the date sealed, the chemical analysis results and the chemist's signature. He then places the sample in a locked vault until such time as it is to be introduced as evidence in a trial or returned to the law enforcement agency which originally sent it for testing. Each of the chemists identified the package he had placed in the vault, before it was introduced. Each also testified that the envelope he received for analysis showed no signs of having been tampered with when he received it. Each also stated that he had brought the sample with him when he came to testify and that the envelope in which it was received was in the same condition that it had been when he sealed it and placed it in the vault. The seal was broken and the envelope opened and its contents identified in the presence of the jury.

The appellant argues that the introduction of both samples was erroneous because the prosecution failed to properly complete the chain of custody of the evidence. More specifically, the appellant contends that to properly develop the chain of custody, the testimony should have included Stevens' identification of the samples introduced into evidence as those purchased from the appellant and the testimony of the department of health evidence technician concerning receipt of the samples in the mail.

To allow introduction of physical evidence, it is not necessary that every moment from the time the evidence comes into the possession of a law enforcement agency until it is introduced at trial be accounted for by every person who could have conceivably come in contact with the evidence during that period. Nor is it necessary that every possibility of tampering be eliminated; it is only necessary that the trial judge, in his discretion, be satisfied that the evidence presented is genuine and, in reasonable probability, has not been tampered with. See Gardner v. State, 263 Ark. 739, 569 S.W.2d 74; Wickliffe & Scott v. State, 258 Ark. 544, 527 S.W.2d 640; Rogers v. State, 258 Ark. 314, 524 S.W.2d 227, cert. den. 423 U.S. 995, 96 S.Ct. 423, 46 L.Ed.2d 369 (1975).

Rystrom testified that he mailed the pills given to him by Stevens to the health department via certified mail. The certified mail numbers on the envelopes introduced into evidence correspond with those recorded by Rystrom. The envelopes were sealed when received at the department of health and remained in a locked room until the contents were analyzed. Each envelope was resealed by the chemist who conducted the tests and remained in a vault until the time of their introduction into evidence at the trial of the appellant. The appellant has not alleged that the samples were tampered with and the circumstances of this case do not suggest any significant possibility of tampering. In such a case we will not reverse the ruling of the trial judge in the absence of an abuse of discretion.

Point III of appellant's brief claims that it was error for the jury to be given an instruction on...