LEE R. KERR

Rosebud County Attorney

Rosebud County Courthouse

P.O. Box 69

Forsyth, Montana 59327

Phone: (406) 356-2236

Attorney for Plaintiff

MONTANA SIXTEENTH JUDICIAL DISTRICT COURT, ROSEBUD COUNTY

STATE OF MONTANA, )

) Cause No. DC 97-13.ROS

Plaintiff, )

)

vs. ) POINTS AND AUTHORITIES

)

MORRIS BEMENT, ) RE: EVIDENCE FOUNDATION:

) CHAIN OF CUSTODY

Defendant. )

In a prosecution of felony theft, although the items are not shown to be in the “chain of custody” for the entire period during which they were stolen, they are uniquely marked and readily identifiable by their owner. Thus, the “chain of custody” is not a foundational prerequisite for their admission in evidence. When introducing a readily identifiable piece of evidence, the foundation is complete if the witness testifies he previously observed the characteristic and presently recalls the characteristic. Only when the item of evidence is so commonplace as to be undistinguishable or not unique is it necessary to lay a chain of custody foundation. St. v. Fox, 212 M 488, 689 P2d 252, 41 St. Rep. 1884 (1984).

CHAIN OF CUSTODY -- SUFFICIENCY OF EVIDENCE DEMONSTRATING CHAIN

FAULTY LABORATORY PROCEDURE:

Weeks was convicted of sexual intercourse without consent with his stepdaughter. The conviction as based in part upon serological DNA evidence gained from blood samples taken from Weeks, the stepdaughter, and a child of the stepdaughter. Weeks challenged the admissibility of the samples because one of the samples was mistakenly sent to another laboratory before being forwarded to the correct laboratory and because when a sample of blood was taken from him, the person marking the sample did not follow the requirements of the laboratory manual. Citing St. v. Bradley, 262 M 194, 864 P2d 787 (1993), the Supreme Court held that the state’s evidence as to the chain of custody was sufficient even through the blood sample was inadvertently sent to the wrong laboratory. The Supreme Court also held that although the laboratory manual was not complied with, there was sufficient evidence to prove that the sample of blood tested by the laboratory was the blood that was taken from Weeks. St. v. Weeks, 270 M 63, 891 P2d 477, 52 St. Rep. 78 (1995).

CHAIN OF CUSTODY OF EVIDENCE:

Rumley appealed his conviction for negligent homicide. He argued that the court erred in admitting the results of a blood alcohol test because of a break in the chain of possession of the blood sample. He argued that because the police officer did not see the blood sample being drawn, the chain of possession was broken. There was testimony that the police officer gave a vial tothe nurse who testified that she drew the blood sample, placed it in the vial, and returned it to the police officer. In light of that testimony, Rumley’s claim lacks merit. The State’s burden in establishing the chain of custody requires only that the evidence be identified and to make a prima facie showing that there has been no substantial change. In this case, the State satisfied its burden. St. v. Rumley, 194 M 506, 634 P2d 446, 38 St. Rep. 1351A.

ADEQUACY OF FOUNDATION LEFT TO DISCRETION OF DISTRICT COURT:

Armstrong contends that the State must show a complete chain of custody from the time of the homicide until the introduction into evidence and that if a link in the chain is missing, the exhibit may not be admitted. On appeal, the Supreme Court said that the adequacy of the foundation of admission of such evidence is within the District Court’s discretion, and the District Court’s determination will not be reversed absent a clear abuse of discretion. The State established a complete chain of custody from the time the evidence was found until it was introduced, and that is sufficient. St. v. Armstrong, 189 M 407, 616 P2d 341, 37 St. Rep. 1563 (1980).

Chain of Custody Requirements in Admissibility of Evidence, Anderson, 37 Mont. L. Rev. 144 (1976).

CHAIN OF CUSTODY -- EVIDENCE TAMPERING -- BURDEN OF PROOF:

Testimony established prima facie that no one tampered with the evidence while it was in police custody. Once this was shown, the burden of proving tampering shifted to the defendant. The fact that the FBI found no blood on the boots when they wereinitially examined does not mean that there was no blood on them. It merely means that the FBI did not find the blood in the first instance. This is not proof of tampering while in police custody. St. v. Armstrong, 189 M 407, 616 P2d 341, 37 St. Rep. 1563 (1980).

CHAIN OF CUSTODY APPLICABLE AFTER ACQUISITION:

Defendant was convicted of conspiracy to commit sale of dangerous drugs after his son-in-law was apprehended in Texas with marijuana grown on the defendant’s premises in McCone County. Defendant contended that the state was required to account for seized marijuana at all times prior to its seizure by law enforcement officials. The chain of custody rule does not require the police or prosecutors to account for the possession of evidence before it comes into their hands. A continuous chain of possession must be established after acquisition of the evidence. If the defendant claims the evidence was tampered with before the prosecution acquired it, he has the burden to show affirmatively that tampering took place. St. v. Walton, 222 M 340, 722 P2d 1145, 43 St. Rep. 1312 (1986), followed in St. v. Conrad, 241 M 1, 785 P2d 185, 47 St. Rep. 32 (1990).

FORM FROM STATE CRIME LAB ADMISSIBLE:

Due to the unavailability of the examining technician, the prosecution moved for the admission of a form from the state crime lab to establish the chain of custody of drug evidence. The defense objected on the basis that the evidence did not fall under any exception to the hearsay rule. The Supreme Court held that the form was admissible because it established that the investigatingofficer obtained the evidence, sent it to the crime lab, received it back from the lab, and identified it as the same evidence sent to the lab, thereby establishing the chain of custody. St. v. Zackuse, 253 M 305, 833 P2d 143, 49 St. Rep. 566 (1992).

CHAIN OF CUSTODY -- DRUGS UNDER OFFICIAL SEAL:

Briner contended that two packets of methamphetamine he allegedly sold were improperly admitted into evidence because there were several fatal gaps in the chain of custody. The state did not offer testimony from the person who mailed the packets from the Sheriff’s office to the state crime lab for testing, the person who received them at the crime lab and mailed them back to the Sheriff, or the person at the Sheriff’s office who received them from the crime lab and returned them to the evidence locker. However, the time periods in question were after the drugs were in official custody and under seal, and Briner showed no evidence to overcome the resulting presumption that there was no tampering with the drugs. St. v. Briner, 253 M 158, 831 P2d 1365, 49 St. Rep. 402 (1992).

DATED this day of July, 1997.

LEE R. KERR

Rosebud County Attorney