State v. Davis, No. 13997

CourtSupreme Court of West Virginia
Writing for the CourtMcGRAW
Citation266 S.E.2d 909,164 W.Va. 783
Decision Date29 May 1980
Docket NumberNo. 13997
PartiesSTATE of West Virginia v. Greg DAVIS.

Page 909

266 S.E.2d 909
164 W.Va. 783
STATE of West Virginia
v.
Greg DAVIS.
No. 13997.
Supreme Court of Appeals of West Virginia.
May 29, 1980.

Page 910

Syllabus by the Court

1. Before a physical object connected with a crime may properly be admitted into evidence, it must be shown that the object is in substantially the same condition as when the crime was [164 W.Va. 784] committed. Factors to be considered in making this determination are: (1) the nature of the article, (2) the circumstances surrounding its preservation and custody, and (3) the likelihood of intermeddlers tampering with it.

2. The preliminary issue of whether a sufficient chain of custody has been shown to permit the admission of physical evidence is for the trial court to resolve. Absent abuse of discretion, that decision will not be disturbed on appeal.

Orville L. Hardman, Parkersburg, for plaintiff in error.

Chauncey H. Browning, Atty. Gen., Gregory W. Bailey, Asst. Atty. Gen., Charleston, for defendant in error.

McGRAW, Justice.

The appellant, Greg Davis, was convicted in the Circuit Court of Wood County for delivery of a controlled substance (marihuana) in violation of W.Va. Code § 60A-4-

Page 911

401. 1 He appeals to this Court, alleging that the State failed to lay a proper foundation for admission of the marihuana into evidence against him.

The evidence in the case discloses the following sequence of events. During the late evening hours of October 17, 1975, one Bert Greg Foutty, an informant for the Wood County Sheriff's Department, went to an establishment[164 W.Va. 785] known as "The Wheel Club" in Parkersburg for the purpose of purchasing marihuana from the defendant. Foutty testified that after making arrangements, he gave fifty dollars ($50.00) to a Shirley Simmons. He then observed Ms. Simmons giving money to Davis, at which time Davis gave her a brown paper bag. This paper bag was then handed to Foutty, upon inspection, he found the paper sack to contain four clear plastic bags containing a "greenish, brownish" leafy substance.

Immediately afterwards, Foutty left the Wheel Club and went to the residence of Wood County Deputy Greg Chapman. There, observed by Foutty, Deputy Chapman placed initialed evidence tags on the four plastic bags. After tagging each of the bags, Deputy Chapman took them to the Wood County Correctional Center and placed them in the evidence locker there.

The bags remained in the evidence locker until December 31, 1975, at which time Deputy Chapman removed them and sent them to the State Criminal Investigation Bureau in South Charleston for chemical analysis.

The bags arrived at the laboratory in South Charleston on January 7, 1976, where they were received and marked by Lieutenant Raymond Barber of the State Police. Lieutenant Barber conducted various tests which revealed the substance contained in the four bags to be marihuana. After completion of the tests, Lieutenant Barber resealed the bags, placed them in a sealed mailing envelope, and mailed the parcel back to Wood County, via certified mail.

On April 28, 1976, the parcel was picked up at the Parkersburg post office by now Deputy Foutty, who then returned it to the evidence locker.

Each of the three witnesses, Foutty, Chapman, and Barber identified the four bags at trial by means of evidence tags and marks which they had placed on them. Foutty testified that the bags were in the same condition as when he received them at the Wheel Club.

[164 W.Va. 786] There appears to be no defect in the chain of custody from the time the contraband was first seized, through analysis, until the placing of the bags in the evidence locker in April of 1976. The defendant contends, however, that the foundation for admission of the marihuana is defective in that "on April 28, 1976, when Foutty put the exhibits in the evidence locker in the Wood County Court House, until the trial November 8, 1976, no chain of possession was established and no effort was made to establish a chain of possession and no one disclosed who brought the exhibits to the Court Room and from whence they came." 2

An examination of the record in the case convinces us that even though the chain of custody established by the State may not be perfect, it is sufficient to justify admission of the exhibits into evidence.

To allow introduction of physical evidence into a criminal trial, it is not necessary that every moment from the time evidence comes into the possession of a law enforcement agency until it is introduced at trial be accounted for by every person who could conceivably come in contact with the evidence during that period, 3 nor is it necessary

Page 912

that every possibility of tampering be eliminated 4; it is only necessary that the trial judge, in his [164 W.Va. 787] discretion, be satisfied that the evidence presented is genuine and, in reasonable probability, has not been tampered with. Munnerlyn v. State, 576 S.W.2d 714 (Ark.1979). 5

In the case at bar, there was an especially acute problem with laying a proper foundation for admission of the evidence because of the very nature of the exhibits involved. There is obvious difficulty in identifying a fungible exhibit such as marihuana, when contrasted with a readily identifiable, physically distinct article, such as a gun or a photograph. State v. Lunsford, 204 N.W.2d 613 (Iowa 1973); Jones v. State, 260 Ind. 463, 296 N.E.2d 407 (1973). This is one of the variables which must be considered when the trial court weighs the evidence to determine whether a sufficient chain of custody has been laid to warrant admissibility of the particular type of evidence involved.

Before a physical object connected with the commission of a crime may properly be admitted in evidence, it must be shown that the object is in substantially the same condition as when the crime was committed. Johnson v. Monongahela Power Co., 146 W.Va. 900, 123 S.E.2d [164 W.Va. 788] 81 (1961). 6 Factors to be considered in making this determination are (1) the nature of the article, (2) the circumstances surrounding its preservation and custody, and (3) the likelihood of intermeddlers tampering with it. If, upon consideration of these factors, the trial judge is satisfied that in reasonable probability the article has not been changed in important respect, he may permit its introduction into evidence. Brewer v. United States, 353 F.2d 260 (8th Cir. 1965). 7

In this case, we deal with a fungible exhibit requiring a fairly extensive foundation, but at the same time we see an efficient and uncontroverted chain of custody

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through the final custodian of the exhibit, 8 and we see no evidence, nor even a legitimate claim, that the exhibits have been tampered with. Importantly, the chain of custody was clearly established through the point at which the exhibits were subjected to chemical analysis. In a prosecution for a drug-related offense, where guilt is primarily dependent upon proof that the substance involved is in fact what it is alleged to be, the chain of custody will ordinarily be sufficient if it traces the path of the exhibit through analysis. 9

[164 W.Va. 789] While it...

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27 practice notes
  • State v. Young, No. 15785
    • United States
    • Supreme Court of West Virginia
    • 10 Noviembre 1983
    ...its preservation and custody, and (3) the likelihood of intermeddlers tampering with it." Syllabus Point 1, State v. Davis, W.Va., 266 S.E.2d 909 8. "The preliminary issue of whether a sufficient chain of custody has been shown to permit the admission of physical evidence is for the trial c......
  • State v. McCartney, No. 101457.
    • United States
    • Supreme Court of West Virginia
    • 17 Noviembre 2011
    ...the trial court to resolve. Absent abuse of discretion, that decision will not be disturbed on appeal.” Syllabus Point 2, State v. Davis, 164 W.Va. 783, 266 S.E.2d 909 (1980). 7. “ ‘ “The West Virginia Rules of Evidence ... allocate significant discretion to the trial court in making eviden......
  • State v. Boyd, No. 15-0878
    • United States
    • Supreme Court of West Virginia
    • 19 Enero 2017
    ...is for the trial court to resolve. Absent abuse of discretion, that decision will not be disturbed on appeal.Syl. pt. 2, State v. Davis , 164 W.Va. 783, 266 S.E.2d 909 (1980). We held in Syllabus point 2 of State v. Charlot , 157 W.Va. 994, 206 S.E.2d 908 (1974), the following:When an objec......
  • State v. Beck, No. 14549
    • United States
    • Supreme Court of West Virginia
    • 17 Julio 1981
    ...possession of the object or article to the final custodian, it may be properly introduced in evidence." See also State v. Davis, W.Va., 266 S.E.2d 909 (1980); State v. Harriston, W.Va., 253 S.E.2d 685 (1979); Cannellas v. McKenzie, W.Va., 236 S.E.2d 327 (1977). All of these decisions, howev......
  • Request a trial to view additional results
27 cases
  • State v. Young, No. 15785
    • United States
    • Supreme Court of West Virginia
    • 10 Noviembre 1983
    ...its preservation and custody, and (3) the likelihood of intermeddlers tampering with it." Syllabus Point 1, State v. Davis, W.Va., 266 S.E.2d 909 8. "The preliminary issue of whether a sufficient chain of custody has been shown to permit the admission of physical evidence is for the trial c......
  • State v. McCartney, No. 101457.
    • United States
    • Supreme Court of West Virginia
    • 17 Noviembre 2011
    ...the trial court to resolve. Absent abuse of discretion, that decision will not be disturbed on appeal.” Syllabus Point 2, State v. Davis, 164 W.Va. 783, 266 S.E.2d 909 (1980). 7. “ ‘ “The West Virginia Rules of Evidence ... allocate significant discretion to the trial court in making eviden......
  • State v. Boyd, No. 15-0878
    • United States
    • Supreme Court of West Virginia
    • 19 Enero 2017
    ...is for the trial court to resolve. Absent abuse of discretion, that decision will not be disturbed on appeal.Syl. pt. 2, State v. Davis , 164 W.Va. 783, 266 S.E.2d 909 (1980). We held in Syllabus point 2 of State v. Charlot , 157 W.Va. 994, 206 S.E.2d 908 (1974), the following:When an objec......
  • State v. Beck, No. 14549
    • United States
    • Supreme Court of West Virginia
    • 17 Julio 1981
    ...possession of the object or article to the final custodian, it may be properly introduced in evidence." See also State v. Davis, W.Va., 266 S.E.2d 909 (1980); State v. Harriston, W.Va., 253 S.E.2d 685 (1979); Cannellas v. McKenzie, W.Va., 236 S.E.2d 327 (1977). All of these decisions, howev......
  • Request a trial to view additional results

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