People v. Kemp, Docket No. 78-3803

• Decision Date: 07 March 1980
• Docket Number: Docket No. 78-3803
• Citation: 99 Mich.App. 485,298 N.W.2d 1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward Russell KEMP, Defendant-Appellant. 99 Mich.App. 485, 298 N.W.2d 1
• Court: Court of Appeal of Michigan — District of US

Page 1

298 N.W.2d 1

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward Russell KEMP, Defendant-Appellant.

Docket No. 78-3803.

99 Mich.App. 485, 298 N.W.2d 1

Court of Appeals of Michigan.

March 7, 1980.

Released for Publication Nov. 5, 1980.

[99 MICHAPP 486] Daniel A. Burress, Brighton, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, Appellate Chief, Asst. Pros. Atty., Maura D. Corrigan, Asst. Pros. Atty., for plaintiff-appellee.

Before MacKENZIE, P. J., and V. J. BRENNAN and WALSH, JJ.

PER CURIAM.

Defendant, Edward Russell Kemp, was charged with knowingly or intentionally possessing a controlled substance, .351 grams of powder containing cocaine, M.C.L. § 335.341(4)(b), M.S.A. § 18.1070(41)(4)(b). A jury found him guilty as charged on May 11, 1978. He was sentenced to three years probation and appeals as of right.

At about 2:40 a.m. on January 20, 1978, Livonia Police Officers Ronald Kugler and

Michael Bremenour were on routine patrol in a marked police car when they stopped a car driven by defendant for straddling lanes. Christopher Tague was also occupying the car. Officer Bremenour approached the vehicle on the driver's side while Officer Kugler approached on the passenger's side. In the course of requesting a driver's license and registration, Kugler noticed a plastic bag containing suspected marijuana in the glove compartment which defendant had opened. Officer Kugler opened the passenger door, requested Tague and the defendant to step out, placed both under arrest, and [99 MICHAPP 487] confiscated from the glove compartment, the plastic bag and a clear glass vial with a white plastic cap containing a short piece of a plastic straw with white substance on the inside of the glass. Bremenour searched the defendant and found an amber-colored vial containing white powder with a small silver spoon attached to its wooden cap.

Over objections of defense counsel, the amber vial and its contents were admitted into evidence. On appeal, defendant challenges this ruling, arguing that the prosecutor did not lay an adequate foundation for the admission of the amber vial. Specifically, defendant points to substantial defects in the chain of custody. We find defendant's allegation of error well-taken.

There was substantial inconsistency between the officers' trial testimony and that taken at the preliminary examination. At trial, Officer Kugler identified the amber vial as one that Officer Bremenour had shown him at the time of defendant's arrest. He stated that he had put his initials on the bottle's cap, and, indeed, the bottle cap did contain Kugler's initials. Officer Kugler further stated that he sealed the evidence bag into which the amber vial and its contents were placed and gave it to Officer Bremenour who deposited it in the evidence bin. This contradicted his preliminary examination testimony that he, not Officer Bremenour, put the lock-seal bag into the evidence bin.

At the preliminary examination, Officer Bremenour stated that the vial was clear and that he initialed it before sealing it in the evidence bag which he then deposited in the evidence bin. When the lock-seal envelope was later opened at the preliminary examination, the vial contained therein was amber and did not contain this Officer's[99 MICHAPP 488] initials. At trial, however, Bremenour testified differently. He identified the amber vial as the one he seized from defendant's vest pocket and stated that he had initialed both the bottle and the cap. In fact, Officer Bremenour's initials only appeared on the wooden cap. The vial itself bore no indication of any previous markings. He stated that Officer Kugler had sealed the lock-seal evidence bag containing the vial but he (Bremenour) deposited it in the evidence bin. When the inconsistencies between the trial and preliminary examination testimony were pointed out, Officer Bremenour admitted that he was "mixed up", and didn't know who sealed the bag.

During cross-examination Bremenour admitted that at the time of the original arrest he observed the vial which he seized, saw it again in the police car and saw it again in the police station and that these observations formed the basis of his testimony but that he changed his testimony after opening the envelope at the preliminary examination. Since the vial bore none of Officer Bremenour's markings, nor any identifying date, Bremenour admitted that he was unable to say whether it was the same bottle he had seized.

Livonia Police Officer John Hoye testified that the day after defendant's arrest he opened the evidence bag, removed a clear amber vial with a silver spoon attached to its wooden cap, a clear white vial and a bag containing suspected marijuana. He then opened the amber vial, conducted a fluid test on a small portion of the substance contained therein, and returned the evidence to the evidence bag which he then placed in his evidence locker. There is no indication that...