White v. State

• Citation: 958 S.W.2d 519,330 Ark. 813
• Decision Date: 18 December 1997
• Docket Number: No. CR,CR
• Parties: Brian John WHITE, Appellant, v. STATE of Arkansas, Appellee. 97-955.
• Court: Supreme Court of Arkansas

Page 519

958 S.W.2d 519

330 Ark. 813

Brian John WHITE, Appellant, v. STATE of Arkansas, Appellee.

No. CR 97-955.

Supreme Court of Arkansas.

Dec. 18, 1997.

Sam Sexton, III, Little Rock, for Appellant.

Winston Bryant, Attorney General, Sandy Moll, Assistant Attorney General, Little Rock, for Appellee.

BROWN, Justice.

This appeal arises out of the conviction of appellant, Brian White, for the offense of sexual abuse in the first degree. White received a sentence of eighteen years. He raises multiple points on appeal, none of which has merit. We affirm.

On June 29, 1994, White allegedly had sexual intercourse with a 12-year-old female, NE. The incident was reported to the police on July 9, 1994. At the time, White was on probation due to pleas of guilty that were deferred under Act 346 of 1975, the First Offenders Act.

At trial, the evidence presented by the State consisted primarily of the testimony of the victim together with medical and physical evidence. The victim testified that on the date in question, White, who was the uncle of the victim, was sent to pick up the victim and another minor, Rachel White, who was the 12-yearold aunt of the victim. ¹ According to the testimony, White and his girlfriend, Barbara Frazee, took the two girls back to his apartment where they offered the girls alcohol and marijuana, which the girls accepted. The victim testified that she went to sleep in White's bedroom and awoke to find White fondling her. White, she stated, eventually had sexual intercourse with her against her will. Although neither of them actually witnessed the alleged rape, the testimony of Rachel White and Barbara Frazee confirmed certain aspects of the victim's testimony.

The prosecutor also presented physical evidence of the crime. Several items of clothing, including the underwear that the victim claimed to have been wearing that night, were introduced into evidence. These clothing articles were collected by Rogers Police Detective Gary Armstrong and sent to the State Crime Lab for testing. The prosecutor also presented the testimony of two technologists who conducted tests to determine if White and the victim suffered from any sexually transmitted diseases. The tests showed that both the victim and White had chlamydia on July 11 and 12, 1994, respectively. A pharmacist also testified that White had purchased an antibiotic on July 17, 1994, which could be used to cure chlamydia.

I. Discovery Delay

For his first issue White protests the refusal of the trial court to allow the jury to be informed or, alternatively, to instruct the jury that the prosecutor did not turn over the test results on the victim's underwear and hairs found in the underwear conducted by the State Crime Lab until the day before the trial. The test results had been sent to the Rogers Police Department on May 26, 1995. In spite of White's motion to compel discovery filed on January 23, 1995, White had not been told about the tests. The defense moved to exclude the evidence. Recognizing that a violation of Ark. R.Crim. P. 17.1 had occurred, the trial court offered the defense a continuance to allow time to examine the evidence and to have tests performed pursuant to Ark. R.Crim. P. 19.7. White declined and insisted that the trial proceed. The test results were admitted as part of the State's case.

During the trial, White's counsel first tried to cross-examine Detective Gary Armstrong on the failure of the prosecutor to make the Crime Lab report available to him until just before trial. The trial court ultimately refused to allow defense counsel to inquire into the matter and also refused to instruct the jury on when the defense received the test results. Then, during closing arguments, defense counsel argued to the jury that the reason the prosecutor had not performed DNA tests on hairs found in the victim's underwear was that the State knew White was innocent. The prosecutor responded in his rebuttal argument that White could have performed his own tests, and White's counsel objected based on the fact that the defense did not have time to perform any tests.

The trial court ruled that White had an opportunity to do his own tests and, in effect waived his right to argue that he did not have sufficient time to perform tests on the underwear or the hairs. We agree. The trial court's choice of remedy under Ark. R.Crim. P. 19.7 will not be disturbed absent an abuse of discretion. Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995). In Esmeyer v. State, 325 Ark. 491, 930 S.W.2d 302(1996), this court addressed a situation where the State failed to disclose a witness before trial:

[A] failure to disclose that information will not warrant a reversal of a conviction absent a showing of prejudice. Alford v. State, 291 Ark. 243, 724 S.W.2d 151 (1987); Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986). When the State fails to provide the information, the burden is on the appellant to show that the omission was sufficient to undermine the confidence in the outcome of the trial. Bray v. State, 322 Ark. 178, 908 S.W.2d 88 (1995). Prejudice, though, does not exist when the defendant already has access to the information that the State did not disclose. See Johninson v. State, 317 Ark. 431, 878 S.W.2d 727 (1994).

Esmeyer, 325 Ark. at 499, 930 S.W.2d at 307.

Here, White has been unable to show that the discovery violation resulted in any prejudice because he was offered a continuance to correct any potential prejudice. White argues that the offer of continuance was unacceptable because accepting a continuance would have, in some way, waived his speedy-trial claim. This is simply not true. A continuance charged to the defendant would have had no effect on any speedy-trial claims that may have existed at that time.

Moreover, the trial court is in the best position to evaluate the potential for prejudice based on the prosecutor's remarks. Bullock v. State, 317 Ark. 204, 876 S.W.2d 579 (1994). In the instant case, counsel for the defense invited the State's response in closing argument by implying that the State did not conduct further tests because it knew that White was innocent or because it did not care enough to conduct the tests. The prosecutor's reply that White could have conducted his own tests was warranted and an accurate statement of the situation. There was no misrepresentation by the prosecutor and no abuse of discretion by the trial court in refusing to instruct the jury about the delay in furnishing the test results. See Lee v. State, 326 Ark. 529, 932 S.W.2d 756 (1996).

II. Exclusion of Medical Record

For his next point, White contends that the trial court was in error in not allowing his medical record that he tested negative for chlamydia into evidence. The record in question was the result of a chlamydia test performed on him on July 21, 1994. The record was excluded at trial because the trial court found that a proper foundation had not been laid concerning the chain of custody and the protocol followed in collecting the samples. White argues on appeal, however, that a medical record can come in under the business-record exception to the hearsay rule [Ark. R. Evid. 803(6) ], and laying a foundation is not required.

We disagree with White's conclusion. The law governing the foundation required for the introduction of evidence and chain of custody is well established:

Evidentiary matters regarding the admissibility of evidence are left to the sound discretion of the trial court and rulings in this regard will not be reversed absent an abuse of discretion. Hubbard v. State, 306 Ark. 153, 812 S.W.2d 107 (1991). We have consistently agreed that the purpose of establishing a chain of custody is to prevent the introduction of evidence that is not authentic or that has been tampered with. Pryor v. State, 314 Ark. 212, 861 S.W.2d 544 (1993). However, the trial court must be satisfied that, in reasonable probability the evidence has not been tampered with; it is not necessary that the State eliminate every possibility of tampering. (citations omitted).

Harris v. State, 322 Ark. 167, 176, 907 S.W.2d 729, 734 (1995).

We conclude that there was no abuse of discretion in the trial court's finding that the testimony presented to establish a foundation for White's independent test was inadequate. Both of the witnesses called by the defense testified that the procedures at the lab were reliable. Yet, neither of the witnesses could testify as to who collected the samples from White and if that person actually followed an established protocol. The sum and substance of the testimony was the trial court could not be assured of how the samples were collected, when they were collected, or even if they were taken from White. Something more must be done to establish the legitimacy of the tests than was done in this case. We have often stated that proof of the chain of custody for interchangeable items like blood must be more conclusive. See, e.g., Crisco v. State, 328 Ark. 388, 943 S.W.2d 582 (1997). The same would hold true for a swabbed sample taken in connection with a chlamydia test.

Furthermore, we agree with the State that any error caused by the exclusion of the medical record was harmless because the evidence of a test conducted on July 21, 1994, was irrelevant.

Here, the relevant dates, as shown at trial, are as follows:

• June 19, 1994--date of the sexual intercourse.

• July 11, 1994--the victim tested positive for chlamydia.

• July 12, 1994--White tested positive for chlamydia.

• July 17, 1994--White purchased an antibiotic that could cure chlamydia.

• July 21, 1994--White's independent test allegedly showed that he tested negative for chlamydia.

Dr. Denman, the State's expert in pathology, testified that antibiotics could cure chlamydia in as little as two to three days. White's independent test was conducted on July 21, 1994, four days after purchasing an antibiotic that could cure chlamydia. The fact that he...