State v. Crook

• Decision Date: 16 June 1977
• Docket Number: No. 12180,12180
• Citation: 98 Idaho 383,565 P.2d 576
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Bruce CROOK, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 576

565 P.2d 576

98 Idaho 383

STATE of Idaho, Plaintiff-Respondent, v. Bruce CROOK, Defendant-Appellant.

No. 12180.

Supreme Court of Idaho.

June 16, 1977.

James C. Herndon, Herndon & Slavin, Salmon, for defendant-appellant.

Wayne L. Kidwell, Atty. Gen., Gordon S. Nielson, Sr. Deputy Atty. Gen., Boise, for plaintiff-respondent.

DONALDSON, Justice.

The central issue presented by this appeal from a conviction of first degree burglary is whether certain exhibits should have been excluded from evidence because of a gap in their chain of custody. Defendant-appellant Bruce Crook was convicted of the first degree burglary of the Salmon River Coffee Shop in Salmon, Idaho. At trial, the primary evidence against him was the testimony of Roger Hartley, who pleaded guilty to receiving the proceeds from the burglary, and the testimony of William Marshall, a criminologist at the State Forensic Laboratory. Marshall testified that in his opinion a piece of tape taken from a pair of pliers found at the scene of the burglary was torn from a roll of masking tape found in appellant's house. Appellant contends that a gap in the chain of custody of the masking tape and of the tape-covered pliers renders these exhibits, and Marshall's testimony, inadmissible as evidence. We disagree.

As a general rule in criminal proceedings, an exhibit must be shown to be in substantially the same condition when offered into evidence as it was when the crime was committed. However, the party offering the exhibit need not exclude all possibility of tampering. Where the court is satisfied that in all reasonable probability the article has not been changed in any material respect, the article is admissible into evidence. State v. Griffith, 94 Idaho 76, 481 P.2d 34 (1971). Ordinarily, the party offering an exhibit establishes its chain of custody in order to create a presumption that it was not materially altered. If the chain of custody has been broken, however, the party can still rely upon other evidence to show a lack of material alteration. In the present case there is a gap in the chain of custody caused by the state's careless handling of the exhibits. Between the time Officer Nielson mailed the sealed box of exhibits to the State Forensic Laboratory and the time Marshall removed the box from the Laboratory evidence room, the box was opened and the tape was removed from the pliers. Apparently, the tape was removed when the pliers and the tape covering them were tested for fingerprints at the Department of Law Enforcement. The record does not indicate whether the entire box of exhibits or only the pliers were taken to the Department of Law Enforcement. Incredibly, the record also does not disclose the date the exhibits were taken from the Forensic Laboratory, who took them, whether tests in addition to fingerprinting were performed, who performed the fingerprint examination, who opened the box of exhibits, the date the exhibits were returned, or who returned them. Furthermore, the box was not resealed after the exhibits were returned to it. We do not believe, however, that the above-described gap renders the exhibits inadmissible into evidence. After considering other evidence presented by the state, we conclude that the state has adequately shown that the roll of masking tape and the tape-covered pliers were not changed in any material respect.

As Officer Nielson was leaving appellant's house with the masking tape, he noticed that there were red fibers on that part of the tape which was unrolled. He later placed on the roll a piece of tape which served as an evidence tag. He then packaged the masking tape and other exhibits, and mailed them to the State Forensic Laboratory.

When Marshall received the box of exhibits, the masking tape was still wrapped in white paper which was taped shut. During his examination of the tape, Marshall discovered red cotton fibers on the tape end. He testified that the fibers were foreign to the tape and were only on that part of the tape which had been pulled off the roll. Marshall also found similar red cotton fibers on the matching tape end from the pliers.

At trial, Officer Nielson examined the roll of masking tape, identified the attached evidence tag as being the one he placed on the roll prior to packaging it, and stated that the quantity of tape on the roll appeared to be the same as when he seized it. From the above circumstances, the trial court could reasonably conclude that the roll of masking tape had not been materially altered.

As for the tape-covered pliers, the record shows that they were altered. The tape was removed from the pliers, and both the tape and the pliers were covered with a graphite powder of the type used for fingerprint work. The only material alteration, however, would be if the tape end was torn to match the tape end from the masking tape. Although we could speculate that someone may have torn the tape on the pliers so that the tape end matched the torn tape end from the masking tape, there is nothing in the record to support such speculation. Accordingly, we hold that the trial court did not abuse its discretion in admitting into evidence the tape-covered pliers and the masking tape.

Marshall testified as an expert that in his opinion at least one of the pieces of tape on the pliers was torn from the roll of masking tape which was taken from appellant's residence. His opinion was based solely upon his conclusion that the tape ends matched after he examined them under a microscope. Appellant contends that the jury could have compared the tape ends and determined for themselves whether they matched. It was therefore error to permit expert testimony on that issue.

The admissibility and competency of opinion testimony, either expert or nonexpert, is largely discretionary with the trial court. State v. Johnson, 96 Idaho 727, 536 P.2d 295 (1975); State v. Cutler, 94 Idaho 295, 486 P.2d 1008 (1971). Marshall testified that without a microscope it was difficult to determine accurately whether the tape ends fit together. We find no abuse of discretion in permitting him to state his opinion that one piece of tape on the pliers came from the roll of masking tape.

Next, appellant contends that the trial court erred by refusing to grant his motion to strike from evidence the roll of masking tape and the testimony relating to it. The basis for the motion to strike was that the tape was seized in violation of appellant's Fourth Amendment rights. The motion to strike came during the third day of trial. Since it is unclear from the record whether the motion was denied because it was untimely, I.C.R. 12(b)(3); State v. Gerhardt, 97 Idaho 603, 549 P.2d 262 (1976), or because it lacked merit, we will consider the motion on its merits.

The roll of masking tape was "seized" in the following manner. After placing appellant under arrest, Officer Nielson told him that they wanted as evidence the shoes appellant was then wearing. Appellant agreed to return to his house with the officer in order to get another pair. After changing his shoes, appellant asked if he could...