State v. Bradshaw

• Decision Date: 09 February 1984
• Docket Number: 18255,Nos. 18430,s. 18430
• Citation: 680 P.2d 1036
• Parties: STATE of Utah, Plaintiff and Respondent, v. Richard Allen BRADSHAW, Defendant and Appellant. Richard Allen BRADSHAW, Plaintiff, v. Lawrence MORRIS, Warden, Utah State Prison, Defendant.
• Court: Utah Supreme Court

Page 1036

680 P.2d 1036

STATE of Utah, Plaintiff and Respondent, v. Richard Allen BRADSHAW, Defendant and Appellant.

Richard Allen BRADSHAW, Plaintiff, v. Lawrence MORRIS, Warden, Utah State Prison, Defendant.

Nos. 18430, 18255.

Supreme Court of Utah.

Feb. 9, 1984.

Dexter L. Anderson, Fillmore, for defendant and Appellant.

Richard Allen Bradshaw, pro se.

David L. Wilkinson, Atty. Gen., Robert N. Parrish, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.

HOWE, Justice:

After a jury trial, the defendant was convicted of the felony of producing a controlled substance in violation of U.C.A., 1953, § 58-37-8(1)(a)(i), and of the class B misdemeanor of possession of a controlled substance in violation of § 58-37-8(2)(a)(i). In case no. 18255, with representation of counsel, he appeals seeking a reversal of the judgment or a new trial. In case no. 18430, acting pro se, he petitions this court for a writ of habeas corpus.

The Milford City police chief and a Beaver County deputy sheriff, acting on information from an informant, went to the residence of the defendant's neighbor with his permission where they observed marijuana plants growing on the defendant's adjacent property. The deputy sheriff reached over a small retaining wall and took three leaves of a marijuana plant from defendant's yard. Later the same day, the police chief obtained a search warrant on the basis of his observations. He, the deputy sheriff and other officers returned to and entered defendant's premises pursuant to the warrant. Because no one was home, only the outside premises were initially searched. The officers found over 100 marijuana plants growing in a planter area next to a root cellar behind defendant's house and at other locations in the backyard. Upon defendant's return home, he was arrested and the officers continued the search, finding other physical evidence such as marijuana stems, seeds and ash residue in his house.

Defendant asserts the following contentions: (1) the search warrant executed against him was void because it was issued on an affidavit not properly signed; (2) evidence was improperly admitted at trial because it was derived from a search warrant which had been issued based upon illegally seized evidence; (3) evidence was admitted at trial without proper foundation; (4) the granting of a continuance during trial placed him in double jeopardy; (5) he was denied timely representation by counsel and the right to a speedy trial; and, (6) the evidence was insufficient to sustain the verdict. Acting pro se he re-asserts some of the same arguments and adds: (7) the search and his arrest were illegal because the search warrant was executed by a police officer who had not been granted police officer certification.

Defendant first contends that the police chief's failure to sign the warrant affidavit in the space above the signature of the magistrate invalidated the search warrant. In United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), the United States Supreme Court recognized that technical requirements of elaborate specificity have no proper place where affidavits for search warrants are concerned. Constitutional policy requires realistic, common sense interpretation where non-lawyers draft documents in the haste of criminal investigations.

In the instant case, the police chief did not sign the affidavit at the bottom of the page, but signed it at the top following the statement: "The peace officer undersigned, being sworn, states on oath...." Since he did sign the affidavit and also swore on oath that his statements in it were true, the chief's failure to place his signature in the proper location on the form resulted in no prejudice to the defendant. Defendant's formalistic argument is, therefore, unpersuasive. See People v. Sloss, 109 Cal.Rptr. 583, 34 Cal.App.3d 74 (1973).

Secondly, the defendant contends that evidence which was admitted at trial should have been suppressed by application of "the fruit of the poisonous tree" doctrine since the search warrant was issued based upon three marijuana leaves which had been seized during an illegal trespass. However, the trial court determined that the warrant was issued based upon the officer's observations before and separate and apart from the deputy taking the leaves. Therefore, the consequent evidence was admissible since it was derived by means sufficiently distinguishable to be purged of any taint which the taking of the leaves might have suggested. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The defendant grew marijuana in his backyard, which was openly viewed from his neighbor's yard, without any intrusion into his property. Therefore, he had no reasonable expectation of privacy concerning it. State v. Lee, Utah, 633 P.2d 48 (1981). Cf. State v. Echevarrieta, Utah, 621 P.2d 709 (1980).

Defendant's third contention is that the marijuana seized from his residence pursuant to warrant was admitted at trial without proper foundation. Before real evidence can be admitted, the trial court must be convinced that the proposed exhibit is in substantially the same condition when introduced into evidence as it was when the crime was committed. Where the evidence has passed through several hands, circumstances surrounding chain of possession are relevant in making this assessment. State v. Madsen, 28 Utah 2d 108, 498 P.2d 670 (1972); State v. Crook, 98 Idaho 383, 565 P.2d 576 (1977). See also 29 Am.Jur.2d Evidence, § 774 at 846 (1967). However, the party proffering the exhibit is not required to eliminate every conceivable possibility that the evidence may have been altered. Baughman v. State, 265 Ark. 869, 582 S.W.2d 4 (1979); State v. McGinley, 18 Wash.App. 862, 573 P.2d 30 (1977); State v. Hodges, 109 Ariz. 196, 507 P.2d 121 (1973). Some jurisdictions have held that where no evidence has been offered to suggest tampering, proffered evidence is admissible if the chain of evidence is otherwise adequately established. Lebeau v. State, Wyo., 589 P.2d 1292 (1979); State v. Davis, 110 Ariz. 51, 514 P.2d 1239 (1973); Sparks v. State, 89 Nev. 84, 506 P.2d 1260 (1973). A weak link in the chain and any doubt created by it go to the weight to be given the evidence once the trial court has exercised the discretion to conclude that in reasonable probability the proffered evidence has not been changed in any important respect. State v. Vance, 24 Or.App. 283, 545 P.2d 604 (1976); Sorce v. State, 88 Nev. 350, 497 P.2d 902 (1972).

In this case the defendant disputes the continuity of the chain of possession of the seized marijuana at the point where a sample of it was mailed to a state chemist for analysis. Mailing a narcotic to a central laboratory does not necessarily constitute a break in the chain of custody. State v. Davis, supra. The particular sample that was mailed here was also otherwise traceably transferred from party-to-party and identified. No evidence was presented to suggest that mailing it resulted in tampering or its substitution. Also, the fact that it remained overnight in a box ready for mailing in the locked office of a sheriff whose deputies also had access to the office is a fact which goes to the weight of the evidence. Evidence at trial indicated that the deputies lived far from the office, and no evidence suggested that they or anyone else had tampered or even been in contact with the box that night.

Defendant further argues that one of the bags of the seized marijuana should not have been admitted because it was not any more reliable than its sample. This argument is based upon a misconstruction of the facts. The reliability of the seized marijuana as evidence did not depend upon the admission of this sample, which itself was properly admitted.

Finally on this issue, the defendant's argument that U.C.A., 1953, § 77-23-8 prohibited the police chief, who seized the marijuana, from turning it over to a property officer is unpersuasive. This section of the code requires the officer who seized the property to be responsible for its safekeeping and maintenance. Responsibility does not require constant immediate possession.

Contention four of defendant, that the granting of a continuance during trial placed him in double jeopardy, is based upon the argument that the trial court continued the trial because the prosecutor was having difficulty in making his case. The trial court granted the continuance because of the late hour (6:40 p.m.) and because he had ruled on evidence in a manner not anticipated; but, he stated that he granted it "primarily, however, [because of] the lateness of the hour." Because the prosecutor was afforded time which he used to bolster his evidence and reorganize his presentation by recalling certain witnesses...