People v. White

• Decision Date: 19 December 1994
• Docket Number: Docket No. 154378
• Citation: 527 N.W.2d 34,208 Mich.App. 126
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Prentis Mario WHITE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 34

527 N.W.2d 34

208 Mich.App. 126

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Prentis Mario WHITE, Defendant-Appellant.

Docket No. 154378.

Court of Appeals of Michigan.

Submitted July 8, 1994, at Lansing.

Decided Dec. 19, 1994, at 9:40 a.m.

Released for Publication Feb. 21, 1995.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Brian L. Mackie, Pros. Atty., and David A. King, First Asst. Pros. Atty., for the People.

Michael J. Steinberg, Ann Arbor, for defendant on appeal.

Before GRIFFIN, P.J., and MacKENZIE and O'BRIEN, ^* JJ.

GRIFFIN, Presiding Judge.

Following a jury trial, defendant was convicted of one count of possession of less than twenty-five grams of cocaine, M.C.L. § 333.7403(2)(a)(v); M.S.A. § 14.15(7403)(2)(a)(v). He was sentenced as a second controlled substances offender, M.C.L. § 333.7413(2); M.S.A. § 14.15(7413)(2), to two to eight years' imprisonment. Defendant appeals as of right. We affirm defendant's conviction and hold that a perfect chain of custody is not required for the admission of cocaine and other relatively indistinguishable items of real evidence.

I

On October 10, 1991, Ypsilanti police officer Eugene Rush spotted defendant while eating in a local restaurant. Officer Rush immediately recognized defendant as the subject of three outstanding warrants for his arrest. As Officer Rush and another officer approached defendant to effectuate an arrest, defendant stated, "[W]hy are you coming close to me?" Defendant then put his left hand in his pants pocket and attempted to flee from the restaurant.

Before defendant reached the front door of the restaurant, Officer Rush grabbed defendant in the alcove. As Officer Rush struggled to restrain defendant from leaving the restaurant, he was joined by several other officers who arrived at the scene. After the officers succeeded in handcuffing defendant, a clear cellophane wrapper was taken from defendant's clenched left hand by Officer Joseph Braunschneider. The wrapper contained approximately four small rocks of suspected crack cocaine. Officer Rush, who was given custody of the evidence at the police station by Officer Braunschneider, placed the evidence in an evidence envelope, which he sealed, stapled, and placed in the evidence room safe.

At trial, the focus of the defense strategy was to attack the chain of custody of the seized contraband after it was placed in the safe by Officer Rush. Ypsilanti police officer Malcolm Winn testified that he transported the sealed evidence envelope from the police station to the Michigan State Police Crime Laboratory evidence locker on October 14, 1991. Further, crime lab scientist Jurgen Switalski testified that he removed the sealed envelope from the locked evidence locker and conducted two tests for the presence of cocaine on the following day.

However, Officer Winn admitted on cross-examination that he personally did not witness the removal of the evidence from the safe at the police station. Instead, he testified that he received the evidence from Sergeant Yek, the officer in charge of the property room, when he arrived to transport the evidence. Sergeant Yek did not testify at trial.

Following the prosecutor's motion for the admission of the cocaine, defendant objected on the basis that there was a break in the chain of custody. Defendant argued that the evidence was inadmissible because there was no testimony concerning the transfer of the cocaine from the evidence safe. The trial court overruled defendant's objection after concluding that a break in the chain of custody goes to the weight of the evidence rather than its admissibility. Further, the trial court ruled that it was "arguable" whether, in fact, there was a break in the chain.

II

Defendant first argues on appeal that the trial court erred in admitting the cocaine into evidence because there was a vital link missing in the chain of custody. Specifically, defendant contends that unlike other types of real evidence, a strict chain of custody is required for the admissibility of relatively indistinguishable or fungible items that have been examined or tested by an expert. We disagree.

The foundation requirements for the admission of real evidence were summarized by Professor McCormick in his authoritative treatise on evidence:

Again, demonstrative evidence may be classified as to whether the item offered did or did not play an actual and direct part in the incident or transaction giving rise to the trial. Objects offered as having played such a direct role, e.g., the alleged weapon in a murder prosecution, are commonly called "real" or "original" evidence and are to be distinguished from evidence which played no such part but is offered for illustrative or other purposes. It will be readily apparent that when real evidence is offered an adequate foundation for admission will require testimony first that the object offered is the object which was involved in the incident, and further that the condition of the object is substantially unchanged. If the offered item possesses characteristics which are fairly unique and readily identifiable, and if the substance of which the item is composed is relatively impervious to change, the trial court is viewed as having broad discretion to admit merely on the basis of testimony that the item is the one in question and is in a substantially unchanged condition. On the other hand, if the offered evidence is of such a nature as not to be readily identifiable, or to be susceptible to alteration by tampering or contamination, sound exercise of the trial court's discretion may require a substantially more elaborate foundation. A foundation of the latter sort will commonly entail testimonially tracing the "chain of custody" of the item with sufficient completeness to render it reasonably probable that the original item has neither been exchanged with another nor been contaminated or tampered with. [2 McCormick, Evidence (4th ed.), § 212, pp. 7-8.]

Consistent with these requirements, the majority of our panels have concluded that the admission of real evidence does not require a perfect chain of custody. See, e.g., People v. Prast (On Rehearing), 114 Mich.App. 469, 490, 319 N.W.2d 627 (1982); People v. Stevens, 88 Mich.App. 421, 424, 276 N.W.2d 910 (1979); People v. Kremko, 52 Mich.App. 565, 573, 218 N.W.2d 112 (1974). But see People v. Curry, 39 Mich.App. 412, 417-418, 197 N.W.2d 837 (1972). In this line of cases, we held that any deficiency in the chain of custody goes to the weight of the evidence rather than its admissibility once the proffered evidence is shown to a reasonable degree of certainty to be what its proponent claims. See, e.g., People v. Jennings, 118 Mich.App. 318, 324, 324 N.W.2d 625 (1982); Stevens, supra; Kremko, supra.

On appeal, defendant attempts to distinguish these cases because they dealt with fairly unique or readily identifiable evidence. Defendant asserts that because cocaine is a relatively indistinguishable substance, a strict chain of custody is necessary to avoid "a mistaken exchange, tampering and contamination." In contrast, the people argue that a "prosecutor must merely lay a foundation identifying articles as what they are purported to be and showing that they are connected with the crime or the accused."

In resolving this question, we find dispositive the foundation requirements for the admission of real evidence summarized in Professor McCormick's treatise on evidence. ¹ According to Professor McCormick, the admission of relatively indistinguishable evidence requires a chain of custody only sufficiently complete to "render it reasonably probable that the original item has neither been exchanged with another nor been contaminated or tampered with." ²

We find further support for this position among the circuits of the United States Court of Appeals. ³ See, e.g., United States v. Lott, 854 F.2d 244 (CA7, 1988); United States v. Mora, 845 F.2d 233, 237 (CA10, 1988); United States v. Jones, 687 F.2d 1265 (CA8, 1982). Representative of these views, is the Seventh Circuit Court of Appeals decision in Lott, supra. There, the Seventh Circuit upheld the lower court's decision to admit the government's liquid phencyclidine (PCP) evidence despite the government's failure to show a complete chain of custody:

In any case, the government need not prove a perfect chain of custody for evidence to be admitted at trial; gaps in the chain normally go to the weight of the evidence rather than its admissibility. United States v. Jefferson, 714 F.2d 689, 696 (CA7, 1983); United States v. Lampson, 627 F.2d 62, 65 (CA7, 1980). Moreover, the government need only show that it took reasonable precautions to preserve the original condition of the evidence, it does not have to exclude all possibilities of tampering with the evidence. [United States v. Aviles, 623 F2d 1192, 1198 (CA7, 1980) ]. In addition, a presumption of regularity exists with respect to official acts of public officers and, absent any evidence to the contrary, the court presumes that their official duties have been discharged properly. Id.

The district court was satisfied that the government established a sufficient foundation for each of the above items for physical evidence. On this record, we cannot conclude that it abused its discretion in reaching that conclusion. In our view, the chains of custody for the exhibits were substantially complete and the trial court could properly conclude, taking into account the lack of evidence of any government wrongdoing along with the presumption that the government's agents properly performed their duties, that the evidence was admissible. [Lott, supra, 854 F.2d at 250-251.]

In light of these principles, we hold that a perfect chain of custody is not required for the admission of cocaine and other relatively indistinguishable items of real evidence. Rather, such evidence may be admitted where the absence of a mistaken exchange,...