State v. Davis

• Decision Date: 22 October 1973
• Parties: The STATE of Arizona, Appellee, v. Leon DAVIS, Appellant. No 2671.
• Court: Arizona Supreme Court

Page 1239

514 P.2d 1239

110 Ariz. 51

The STATE of Arizona, Appellee, v. Leon DAVIS, Appellant.

No 2671.

Supreme Court of Arizona, In Banc.

Oct. 22, 1973.

Gary K Nelson, Atty. Gen., by Thomas A. Jacobs, Asst. Atty. Gen., Phoenix, for appellee.

Edward Hendricksen, Yuma, for appellant.

CAMERON, Vice Chief Justice.

This is an appeal from a jury verdict and judgment of guilt to the crime of selling heroin, § 36--1002.02 A.R.S., and a sentence of not less than five nor more than ten years in the Arizona State Prison.

We are asked to consider only one question on appeal and that is: Was the chain of possession of the heroin broken rendering the heroin inadmissible into evidence?

The facts necessary for a determination of this matter on appeal are as follows. The defendant was arrested in Yuma, Arizona, for selling a '$20 paper' of heroin to an informant. At the trial in the matter, one of the arresting officers testified that the '$20 paper' of heroin: 'was aluminum foil. I guess maybe possibly up to an inch long, half an inch wide and maybe an eighth to three-sixteenths of an inch thick.' He placed it inside a plastic bag upon which he placed his initials, placed it in an envelope which he personally addressed, and sent it by registered mail to the Arizona Department of Public Safety Crime Laboratory in Phoenix, Arizona. He stated that he thereafter received the evidence back from the State Crime Laboratory, that he recognized the plastic bag, the envelope in which he had sent the material to the crime laboratory, and that the alumimum foil had a tip of plastic over the end with an initial on it. After identifying the letter and the plastic bag, he testified:

'Q All right. Now examining it, the bindle at this time, Mr. Kindle, does it appear to be from the outside in the same or similar condition that it was on the day that you sent it to the crime lab?

'A Yes, it does.

'Q And is that also in the same or similar condition as it was when you obtained it from Mr. Shephard?

'A That's right.

'Q Could you open the package and examine it?

'A (Witness does.)

'Q Is there anything different about that bindle than when you sent it to the Crime Lab, Mr. Kindle?

'A Yes. It has a piece of Scotch tape over it with, I believe, it must be the lab technician's initials on it. A number here. It says '121.50 milligrams'.'

The officer also testified as to the contents of the foil being 'brownish brown tinted color; Grainy-type powder.'

The State called the chemist for the Arizona Department of Public Safety Crime Laboratory. He testified that he received the evidence contained in the sealed envelope from the property custodian of the Department of Public Safety Laboratory, that he opened the envelope and analyzed the contents. He stated:

'Q Would you examine the contents of that envelope, please. What do you find in the envelope, Mr. McBride?

'A Inside the envelope is a small plastic--what's called a zip-lock bag and inside that is a piece of aluminum foil.

'Q Do you recognize that plastic bag and the piece of aluminum foil?

'A Yes, I do.

'Q How do you recognize it?

'A My initials appear upon each item.

'Q How are your initials placed on the piece of tinfoil or alumium?

'A I placed some Scotch tape around the aluminum foil and then placed my initials on the tape.

'Q All right. Could you examine the condition of the tape that you placed around the aluminum foil and tell the Court what condition it's in at this time?

'A It appears as if it has not been tampered. It's still sealed as when I sealed it.'

He testified that the foil contained heroin in a usable quantity.

'Q Could you break the taped seal on the foil bindle and open the bindle, please. What, if anything, do you find in the foil bindle, Mr. McBride?

'A There's some brown chocolate powder.

'Q Does this appear in any way to be the same or similar to that examined by you in September of this year?

'A Yes, it does.

'Q You can close that back up, please. As you examined the foil bindle and its contents, Mr. McBride, today do they seem to be in substantially the same condition as they were in when you first observed them in September of this year?

'A They appear to be similar, sir.'

And:

'After placing the tape around the aluminum foil I placed it back in the plastic bag; sealed that and placed it back in the manila envelope; sealed that and then gave it back to the property custodian at the State Crime Lab.'

It would thus appear that the officer in Yuma placed the evidence in a plastic bag, placed the contents in a sealed envelope, personally addressed it, and sent it to the Department of Public Safety Crime Laboratory in Phoenix. Then the property custodian of the Department of Public Safety Crime Laboratory delivered this envelope unopened to the chemist who performed the experiments, determined the contents to be heroin, placed the contents back in the original foil bindle, then in the plastic bag and the envelope and turned it over to the property custodian for mailing back to Yuma.

The defendant contends that the chain of possession was 'broken' in that all persons who handled the exhibit from the time it left the possession of the officer and was returned to him did not testify, including the property custodian of the Department of Public Safety Crime Laboratory.

In the case of a narcotic which is readily susceptible to alteration and substitution, once it has left the hand of the officer receiving it and has come into the possession of others, a chain of possession must be established to avoid any claim of substitution, tampering or mistake. Failure to establish such a chain of possession will render the narcotic inadmissible as evidence.

This is not, however, an impossible burden, for the State is not required to exclude every remote possibility of its happening:

'* * * Evidence which strongly suggests the exact whereabouts of the exhibit at all times will often be sufficient for chain of custody purposes. * * *' Butler v. State (Ind.), 289 N.E.2d 772, 777 (1972).

And where there is no evidence to suggest any possibility of substitution or tampering it may properly be received in evidence. Sparks v. State (Nev.), 506 P.2d 1260 (1973); Cartwright v. State (Ind.), 289 N.E.2d 763 (1972).

'The rule is well settled that in setting up a chain of evidence, the prosecution need not call upon every person who had an opportunity to come in contact with the evidence sought to be admitted. * * *' Wright v. State (Alaska), 501 P.2d 1360, 1372 (1972).

This court has stated:

'A foundation for the introduction of an object into evidence may be laid either through its identification by witnesses or through the establishment of a chain of possession. To require not only the continuity of possession to be established but also that there be positive identification by everyone concerned would impose in unnecessary burden while it would not insure a fairer trial to the...