U.S. v. Jones, 81-1540

• Decision Date: 14 September 1982
• Docket Number: No. 81-1540,81-1540
• Citation: 687 F.2d 1265
• Parties: 11 Fed. R. Evid. Serv. 1145 UNITED STATES of America, Appellee, v. Ronald Louis JONES, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1265

687 F.2d 1265

11 Fed. R. Evid. Serv. 1145

UNITED STATES of America, Appellee, v. Ronald Louis JONES, Appellant.

No. 81-1540.

United States Court of Appeals Eighth Circuit.

Submitted July 14, 1982.

Decided Sept. 14, 1982.

Thomas E. Dittmeier, U. S. Atty., Mitchell F. Stevens, Asst. U. S. Atty., St. Louis, Mo., for appellee.

Murray Stone and Peter P. Fiore, Jr., St. Louis, Mo., for appellant.

Before LAY, Chief Judge, and HEANEY and McMILLIAN, Circuit Judges.

LAY, Chief Judge.

Ronald Louis Jones was charged in a two count indictment of possession with intent to distribute 32.13 grams of heroin and 3.58 grams of cocaine in violation of 21 U.S.C. § 841(a)(1). Jones' indictment stemmed from a search of an automobile executed pursuant to a search warrant on February 19, 1981. Detective Mokwa, who searched the interior of the car, found a leather handbag on the front seat that contained an Alka-Seltzer box with ten plastic bags of a brown powder he believed to be heroin and ten plastic bags of a white powder he believed to be cocaine. Various items of narcotics paraphernalia were also found in the trunk of the car. The items were seized and Jones was placed under arrest.

Jones was tried before a jury and found guilty of both counts. On May 15, 1981, the district court sentenced Jones to two consecutive five-year terms of imprisonment. Jones appeals his conviction and urges errors in evidentiary rulings as well as a constitutional challenge to the composition of the jury venire. ¹ For the reasons set out below, we affirm.

Chain of Custody.

Jones first contends that the district court abused its discretion by admitting the cocaine and heroin into evidence because a sufficient chain of custody had not been established. At trial, the government's expert witness, Messler, was allowed to testify that the bags contained heroin and cocaine before the chain of custody of the bags had been established. When the government attempted to prove the chain of custody, Detective Mokwa testified that the evidence had been in his possession until it was turned over to the evidence clerk at the police lab. On cross-examination, defendant's counsel showed Mokwa a document that indicated Detective McDonough had delivered the evidence to the lab. Mokwa then produced a receipt signed by the evidence clerk and himself that showed he had delivered the evidence to the lab.

This inconsistency was explained to the court outside the presence of the jury. Mokwa testified that McDonough was his partner and was with him when the evidence was delivered to the lab. McDonough had seized other evidence not relevant to this case at another location, delivered it to the lab at the same time, and the lab placed McDonough's name on some of the papers. The government's attorney explained that the document with McDonough's name on it had not been prepared at the time the evidence was received, but a month later when Messler performed a qualitative analysis of the evidence.

The district court reasoned that although defense counsel could have been misled, there was, however, insufficient error to warrant declaring a mistrial. The district court concluded that all appropriate measures to insure the safe custody of the evidence had been taken.

The Court of Appeals for the District of Columbia Circuit outlined the principles governing proof of chain of custody:

Tangible evidence of crime is admissible when shown to be "in substantially the same condition as when the crime was committed." And it is to be presumed that the integrity of evidence routinely handled by governmental officials was suitably preserved "(unless the accused makes) a minimal showing of ill will, bad faith, other evil motivation, or some evidence of tampering." If, however, that condition is met, the Government must establish that acceptable precautions were taken to maintain the evidence in its original state.

The undertaking on that score need not rule out every conceivable chance that somehow the identity or character of the evidence underwent change. "(T)he possibilities of misidentification and adulteration (must) be eliminated," we have said, "not absolutely, but as a matter of reasonable probability." So long as the court is persuaded that as a matter of normal likelihood the evidence has been adequately safeguarded, the jury should be permitted to consider and assess it in light of the surrounding circumstances.

United States v. Lane, 591 F.2d 961, 962 (D.C.Cir.1979) (footnotes omitted), quoted in United States v. Anderson, 654 F.2d 1264, 1267 (8th Cir. 1981), cert. denied, 454 U.S. 1127, 102 S.Ct. 978, 71 L.Ed.2d 115 (1981) and 454 U.S. 1156, 102 S.Ct. 1030, 71 L.Ed.2d 314 (1982).

We find the evidence was handled according to established procedures. Further, the admissibility of evidence is primarily a determination to be made by the trial court. Such a determination "may not be overturned except for a clear abuse of discretion." United States v. Brown, 482 F.2d 1226, 1228 (8th Cir. 1973). The district court did not abuse its discretion here.

Exclusion of Witness.

At the beginning of the trial the court granted a motion to sequester all witnesses. ² However, the government's "case agent," a St. Louis police officer, was allowed to sit at the government's counsel table throughout the trial under the exception contained in subdivision (2) of rule 615. Defendant contends that subdivision (2) includes only federal officers and does not encompass local police officers. Although the issue has not been squarely decided, there is nothing in the cases or legislative history of the rule that suggests state or local officers should be treated differently than federal officers. See, e.g., United States v. Shearer, 606 F.2d 819, 821 (8th Cir. 1979); United States v. Woody, 588 F.2d 1212, 1213 (8th Cir. 1978), cert. denied, 440 U.S. 928, 99 S.Ct. 1263, 59 L.Ed.2d 484 (1979); In re United States, 584 F.2d 666, 667 (5th Cir. 1978); S.Rep.No.1277, 93rd Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad.News 7051, 7072-73.

In granting defendant's pretrial motion to sequester the witnesses, in which the government joined, the trial court specifically stated that it was customary practice to allow the government to have the "case agent" present. The record shows Detective Hegger was one of the officers who searched the car. The sequestration of witnesses lies peculiarly within the discretion of the trial judge. Here, we find no abuse of discretion.

Expert Testimony.

The defendant urges that the trial court erred in admitting expert testimony that the seized substance was cocaine without laying sufficient foundational proof. The government's expert witness, Messler, ran several tests on the seized substance and testified that it was cocaine. The comparison sample for these tests had not been tested personally by Messler, but rather had been furnished by a drug manufacturer and purported to be cocaine. Jones contends that under Federal Rule of Evidence 703 this sample was not the type of data upon which an expert could reasonably rely.

We rejected an almost identical argument in United States v. Hollman, 541 F.2d 196, 200-01 (8th Cir. 1976). In Hollman the expert was not familiar with the conditions under which a sample had been determined to be heroin and the defendant argued the expert's testimony was based on hearsay. This court concluded that such data met the rule 703 requirement and therefore was "a type reasonably relied upon by experts in the particular field." Id. at 201 (quoting Fed.R.Evid. 703). Following Hollman, we conclude that the district court did not err in admitting the testimony.

Composition of the Jury Venire.

As a final contention Jones, who is black, urges that he was denied a fair trial because the all-white jury venire was not chosen from a fair cross-section of the community in violation of the Jury Selection and Service Act (Act), 28 U.S.C. §§ 1861-1869 and the due process clause. All 36 people from whom Jones' petit jury was drawn were white. Defense counsel objected after voir dire that not a single person on the panel was black, although conceded that he had no evidence of systematic exclusion of blacks. The trial court overruled the objection but noted that it was unusual not to find any blacks in the...