Appeal from Geneva Circuit Court. (CC-92-36). Ben McLauchlin, TRIAL JUDGE.
As Amended. Released for Publication August 12, 1995.
Cobb, Judge. All the Judges concur.
The opinion of the court was delivered by: Cobb
This case was originally assigned to another Judge on the Alabama Court of Criminal Appeals. It was reassigned to Judge Cobb on January 17, 1995.
Frederick Lamar Warren, the appellant, was convicted of three counts of the sale of a controlled substance i.e., crack cocaine. He was sentenced to 12 years in the penitentiary on each count. The appellant raises one issue on appeal. He contends that the trial court erred in admitting the cocaine into evidence because, he says, the State did not prove a proper chain of custody.
In Ex parte Holton, 590 So. 2d 918, 920 (Ala.1991), the Alabama Supreme Court set out the test for establishing a chain of custody.
"The chain of custody is composed of 'links.' A 'link' is anyone who handled the item. The State must identify each link from the time the item was seized. In order to show a proper chain of custody, the record must show each link and also the following with regard to each link's possession of the item: '(1) [the] receipt of the item; (2) [the] ultimate Disposition of the item, i.e., transfer, destruction, or retention; and (3) [the] safeguarding and handling of the item between receipt and Disposition.' Imwinklereid, The Identification of Original, Real Evidence, 61 Mil.L.Rev. 145, 159 (1973).
"If the State, or any other proponent of demonstrative evidence, fails to identify a link or fails to show for the record any one of the three criteria as to each link, the result is a 'missing' link, and the item is inadmissible. If, however, the State has shown each link and has shown all three criteria as to each link, but has done so with circumstantial evidence, as opposed to the direct testimony of the 'link,' as to one or more criteria or as to one or more links, the result is a 'weak' link. When the link is 'weak.' a question of credibility and weight is presented, not one of admissibility."
The circuit court erred in receiving the cocaine into evidence because a sufficient chain of custody was not established. The State failed to prove the ultimate Disposition of the cocaine and its safeguarding and handling while in the possession of police undercover operative, Chris West. The State also failed to identify a link in the chain.
West allegedly bought what was identified as cocaine from the appellant on three occasions occurring on September 19, 25, and 27, of 1991. This cocaine was presented in sealed envelopes as State's exhibits 1, 2, and 3, respectively. Although testimony at trial indicated that the first cocaine purchase occurred on September 19, West himself could not specify the date of his first cocaine purchase from the appellant. He could not specify how many people he had purchased cocaine from over the course of the six-week undercover operation that resulted in appellant's arrest. He could not specify how many cocaine dealers sold him cocaine contained in matchboxes like the appellant allegedly had. R. 48-49. However, he remembered making a number of buys in the same area as the alleged buy from the appellant. R. 50-51. West testified that after buying cocaine from the appellant he drove to a location behind the City of Samson armory to meet one of his supervisors, either Officer Ray Mock or Officer Donald Weeks. Mock was present after the first purchase, but West was not sure which supervisor attended after the other purchases. West placed his initials across the back of all three envelopes containing the evidence. R. 59-60. A piece of newspaper was contained in the envelope containing exhibit 1. West did not know how it got there. R. 55, 58-59. He testified that he had sealed all three exhibits "before [he] left [the armory]. . . and [they were] ready to go to the lab." R. 59. West could not remember what happened next. He testified, "I'm not sure if I kept [them], or if [Mock] took [them] to the police station." R. 44-45. However, West testified that he never went to the police station after a buy because it was too dangerous; "So, for [the cocaine] to get to the police department, [he] had to have given it to someone else . . . [he] just [did not] recall who[.]" R.45. If, according to West, he did retain possession of the substance, it was taken to his home and placed "in [his] bedroom closet" which was not locked and to which his wife and four-year-old child had access. R. 45-46. "Frederick Warren" and "Little Bit" were written underneath a piece of tape on the envelope containing exhibit 1. R. 60. West testified that he did not write these notes and could not account for their presence.
"Q. So someone, in order to have written 'Little Bit', had to have written on this envelope or had to have this envelope prior to [its] being taped then, didn't they, Mr. West?
"A. No one had it prior to [its] being taped.
"Q. Can you tell me how they managed to write underneath this tape, sir, without having ...