Townes v. Commonwealth

• Docket Number: 2022-CA-0918-MR
• Decision Date: 22 December 2023
• Parties: PHILLIP TOWNES APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
• Court: Kentucky Court of Appeals

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PHILLIP TOWNES APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

No. 2022-CA-0918-MR

Court of Appeals of Kentucky

December 22, 2023

NOT TO BE PUBLISHED

APPEAL FROM PERRY CIRCUIT COURT HONORABLE ALISON C. WELLS, JUDGE ACTION NO. 20-CR-00099

BRIEFS FOR APPELLANT: Roy Alyette Durham, II

BRIEF FOR APPELLEE: Daniel Cameron, Ken W. Riggs.

BEFORE: THOMPSON, CHIEF JUDGE; CALDWELL AND EASTON, JUDGES.

OPINION

EASTON, JUDGE:

The Appellant, Phillip Townes ("Townes"), challenges his jury trial conviction for possession of a controlled substance in the first degree with a sentence of three years to serve. We conclude the circuit court erred by allowing a lab analyst witness to testify about the results of drug tests performed by another analyst. The witness had no personal knowledge of any testing of the drugs at issue. In these circumstances, Townes was denied his constitutional confrontation

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right. The same witness's testimony also contributed to an overall inadequate chain of custody to authenticate the lab test results. We reverse the judgment of the Perry Circuit Court and remand for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

In December of 2019, Townes was a passenger in a vehicle stopped by police in Hazard. The arresting officer, Sgt. Steven Everidge ("Everidge"), knew Townes. Everidge checked Townes' name for any outstanding warrants and discovered a warrant for a failure to appear in court.

While placing Townes under arrest, Everidge patted him down and felt something in his right front pants pocket. Everidge told Townes that the items did not feel "like candy." On hearing this, Townes reached into this pocket and attempted to throw the items he retrieved. He was prevented from doing this by Everidge and another officer on the scene. After handcuffing Townes, Everidge retrieved two baggies of white substances from Townes' closed fist and recovered another small baggie which had remained in Townes' pocket. Townes was charged with possession of a controlled substance in the first degree.

Everidge saw a crystal-like substance in the bags Townes tried to get rid of. The way it looked and how it was packaged ("dime bag") was "spot on" for what Everidge typically sees with methamphetamine. On cross-examination, Townes' attorney asked Everidge about his level of experience with drugs.

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Everidge testified he sees methamphetamine "a lot." He was "pretty confident" that what he saw was methamphetamine. Everidge's testimony about his experience and observations was admitted without objection. The context of the questions by Townes' attorney suggested drugs possessed for personal use rather than for trafficking.

After transporting Townes to the police station, Everidge processed the three packages of suspected contraband as evidence. While handling the items, Everidge wore rubber gloves. Everidge prepared documentation, which he explained during his testimony. The contents of these documents would later be corroborated by the lab analyst witness. Everidge attached the documentation to the items and then dropped the evidence in a locked box. The police department used a bank-like night deposit box to secure evidence.

Everidge testified about the limited access to this evidence he and others would have after the deposit. He identified by name the evidence custodian with the police. Everidge explained that a police custodian officer later retrieved the evidence and transported it to the Kentucky State Police lab in London for analysis to determine the contents of the baggies. The documents with the lab confirm the name of the evidence custodian who took the evidence to the lab. This was the same name identified by Everidge.

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Jamie Hibbard ("Hibbard"), a forensic scientist at the state police crime laboratory in London, testified that former employee Erin Thorne ("Thorne") conducted the testing on the three packets. Hibbard conducted both administrative and technical peer reviews of Thorne's work. The review ensured that the bar code numbers on the police agency submission matched those on the report. Hibbard examined the evidence to confirm the weights and descriptions of the baggies listed. This confirmed the items were consistent with those listed on the report of what was sent to Thorne and what Thorne's report described as having been tested. But Hibbard himself did not perform any chemical analysis during his reviews.

The defense argued Hibbard did not possess sufficient personal knowledge to testify about the test results. Over defense objection, Hibbard was allowed to read from the report which Thorne prepared. Hibbard informed the jury that Thorne's analysis revealed the three packets contained methamphetamine, cocaine, and a mix of fentanyl, heroin, and cocaine.

The defense also objected to the admission of the report as well as testimony gleaned from it, because the prosecution failed to provide sufficient evidence of the chain of custody of the evidence tested. The police custodian officer who removed the submission from the secure box and transported it to the lab did not testify at the trial. Other than the contents of the forms, there was no direct testimony concerning how the submission arrived at the laboratory in

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London. Nonetheless the prosecution was allowed to enter the report into evidence.

After the prosecution rested its case at the end of the first trial day, the defense made a motion for directed verdict. The defense argued the prosecution failed to present sufficient admissible evidence to prove guilt beyond a reasonable doubt. The trial court denied the motion.

The next morning, the trial court, without explanation on the record, reconsidered its ruling about the lab report. The trial court disallowed the report as an exhibit for the jury to consider, but the testimony about it could still be considered. Based on the arguments raised herein, Townes filed a motion for a new trial or for acquittal, which was denied by the trial court. Townes now appeals.

STANDARD OF REVIEW

"The standard of review of an evidentiary ruling is abuse of discretion. The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Cox v. Commonwealth, 553 S.W.3d 808, 814 (Ky. 2018) (citations omitted).

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ANALYSIS

Townes objected to the introduction of the laboratory report and to Hibbard's testimony as it was dependent upon the report. One basis of the objection was the lack of a sufficient chain of custody for the tested materials.

KRE^[1] 901 provides as follows:

(a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

Chain of custody is part of a method used to identify and authenticate an item of evidence. "Establishing chain of custody is particularly important where the object is in the form of a sample of material that is collected by an agent associated with one of the parties and transmitted to a laboratory for scientific analysis." 5 CHRISTOPHER B. MUELLER &LAIRD C. KIRKPATRICK, FEDERAL EVIDENCE § 9:10 (2023). The chain of custody serves to "insur[e] that the object offered at trial is the very one connected to the party, transaction, or events ...." Id.

The Kentucky Supreme Court held in Grundy v. Commonwealth, 25 S.W.3d 76, 80 (Ky. 2000):

If the offered item possesses characteristics which are fairly unique and readily identifiable and if the

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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 improbable that the original item has either been exchanged with another or been contaminated or tampered with.

Thus, blood samples require a different amount of chain of custody evidence than a gun. This case involved drugs, many of which may look alike. Illegal drugs are not necessarily "fairly unique and readily identifiable." United States v. Cardenas, 864 F.2d 1528, 1531 (10th Cir. 1989). "For drugs and drug paraphernalia - items which are fungible and not readily identifiable or distinguishable - a stronger foundational showing is required than for non-fungible or readily identifiable evidence, but a perfect chain of custody is not required."

Saxton v. Commonwealth, 671 S.W.3d 1, 11 (Ky. 2022).

While it may not be necessary to establish an infallible chain of custody for the admission of drug or blood evidence, there must be some attempt to do so.

Even with respect to substances which are not clearly identifiable or distinguishable, it is unnecessary to

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establish a perfect chain of custody or to eliminate all possibility of tampering or misidentification, so long as there is persuasive evidence that "the reasonable probability is that the evidence has not been altered in any material respect." United States v. Cardenas, 864 F.2d 1528, 1532 (10th Cir. 1989), cert. denied, 491 U.S. 909, 109 S.Ct. 3197, 105 L.Ed.2d 705 (1989). See also Brown v. Commonwealth, Ky., 449 S.W.2d 738, 740 (1969). Gaps in the chain normally go to the weight of the evidence rather than to its admissibility. United States v. Lott, 854 F.2d 244, 250 (7th Cir. 1988). Here, however, there was

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