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12/29/95 JEROME SMITH v. STATE

December 29, 1995

JEROME SMITH
v.
STATE



Appeal from Montgomery Circuit Court. (CC-94-687, CC-94-688). Charles Price, TRIAL JUDGE.

Rule 39(k) Motion Denied February 9, 1996. Rehearing Denied February 9, 1996. S.C. Denied Cert. May 24, 1996. Released for Publication August 22, 1996.

Long, Judge. All Judges Concur.

The opinion of the court was delivered by: Long

LONG, JUDGE

The appellant, Jerome Smith, was convicted of rape in the first degree and kidnapping in the first degree, violations of §§ 13A-6-61 and 13A-6-43, Ala.Code 1975, respectively. He was sentenced to 65 years' imprisonment for the kidnapping conviction and to 75 years' imprisonment for the rape conviction, with the sentences to run concurrently.

The state's evidence tended to show that at around 9:15 p.m. on May 19, 1993, D.H., the 17-year-old female victim, left her job at the Sears department store in Montgomery and proceeded toward her home in Wetumpka. As she was driving home, she noticed one of her tires was going flat, so she pulled off the road at an exit ramp. As soon as D.H. got out of her car to examine the tire, the appellant drove up in his pickup truck. D.H. accepted the appellant's offer to drive her to a service station so that she could telephone her mother.

As D.H. and the appellant proceeded in the appellant's truck to a service station a few miles from D.H.'s home, the appellant asked her if she liked to drink and to smoke pot and he began to make other comments that caused D.H. to be concerned for her safety. The service station was closed when they arrived, and D.H. got out of the truck and telephoned her mother, telling her that she was afraid of the appellant and asking her to come and get her. D.H.'s mother told her to stay at the service station and that she was on her way.

After she hung up the telephone, D.H. told the appellant that her mother was coming and that he could leave. The appellant then told D.H. that it would only take a few minutes to fix her tire. When D.H. refused any further assistance, the appellant grabbed her and forced her into his truck. The appellant then drove to a cemetery, where he forced D.H. out of his truck and onto the ground and raped her. When the appellant left, D.H. ran to a nearby house, where she telephoned her father and reported the incident. Law enforcement authorities were then notified.

Shortly thereafter, D.H. was taken to Baptist Hospital in Montgomery, where a rape-kit examination was performed by Doctor Thomas Arnold and Nurse Judy Wohlford Shoemaker. The rape-kit examination included taking blood, saliva, and hair samples and vaginal swabs. The clothes that D.H. was wearing, including her shirt, shorts, and panties, were also collected. The appellant was arrested, and samples of hair, saliva, and blood were subsequently taken from the appellant pursuant to a court order. A forensic serologist for the Alabama Department of Forensic Sciences performed a DNA analysis and determined that the DNA structure of the appellant's blood "matched" the DNA structure of a semen stain found in the victim's panties and on a vaginal swab in the rape kit.

At trial, the forensic serologist testified that "the probability of selecting an unrelated individual at random from the population having a DNA profile matching [the appellant's] [is] approximately one in 351,200 blacks and approximately one in 572,000 caucasians." (R. 491.)

The appellant testified in his defense. Although he did not deny stopping to help D.H. with her tire, he maintained that he left D.H. at the service station after driving her there to telephone her mother.

I.

The appellant contends that the trial court erred in admitting testimony concerning the results of the DNA analysis performed by the Department of Forensic Sciences because, he says, there was a "missing link" in the chain of custody of the evidence samples collected from D.H. during the rape-kit examination and later submitted to the Department for DNA testing.

Evidence relevant to chain of custody matters showed the following. Dr. Thomas Arnold examined D.H. at Baptist Hospital after the rape on May 19. With the assistance of Nurse Judy Wohlford Shoemaker, he performed a rape-kit examination, collecting samples of blood, saliva, and hair, as well as vaginal swabs from the victim. As the various specimens were collected, Dr. Thomas passed them to Nurse Shoemaker, who then sealed the items inside evidence envelopes provided with the rape kit. According to established procedures for rape-kit examinations, some of the specimens were actually collected from D.H. by Nurse Shoemaker. When the examination was complete, Nurse Shoemaker placed the separate evidence envelopes inside one large envelope, which was also provided as part of the rape kit. She then sealed the large envelope. Nurse Shoemaker also took D.H.'s clothes, including her shirt, shorts, and panties, and placed them inside a separate bag, which she sealed. This bag was not placed inside the large rape-kit envelope. Nurse Shoemaker then handed the large envelope containing the rape kit to Deputy Alexis Wright of the Montgomery County Sheriff's Department. Nurse Shoemaker also handed the separate bag containing D.H.'s clothes to Deputy Wright. Deputy Wright took the large sealed rape-kit envelope and the sealed bag containing D.H.'s clothing and placed them in an evidence locker at the sheriff's department.

After the rape-kit examination of the victim had been performed, Nurse Cassie Kucucmarski, who had not been present during the examination, entered the examining room to clean it and found on a table three sealed envelopes that she recognized as being part of a standard rape kit. No one else was in the room at the time. Nurse Kucucmarski telephoned Nurse Shoemaker, her supervisor, and told her about the three envelopes. Nurse Shoemaker told Nurse Kucucmarski that she would notify Deputy Wright to return to the hospital to pick up the three envelopes. (Although there was no testimony as to the exact time Nurse Kucucmarski discovered the three envelopes, Nurse Shoemaker indicated that she received the telephone call from Nurse Kucucmarski "right after I had left." R. 387.) When Deputy Wright returned to the hospital, Nurse Kucucmarski gave her the three envelopes, still sealed. She brought them back to the sheriff's department, opened the large rape-kit envelope that she had earlier received from Nurse Shoemaker, placed the three envelopes inside the large envelope with the other sealed envelopes from the rape-kit examination, and resealed the large envelope. Deputy Wright then placed the large rape-kit envelope back in the evidence locker.

Approximately two weeks later, Deputy Wright delivered the large rape-kit envelope and the separate bag containing D.H.'s clothes to William Landrum, a forensic serologist at the Department of Forensic Sciences laboratory in Montgomery. Both the large rape-kit envelope and the bag of clothing were sealed when Landrum received them from Deputy Wright. Landrum then turned the large rape-kit envelope and the bag of clothing over to Katherine McGeehan, another forensic serologist in the Department's Montgomery laboratory. After opening the large rape-kit envelope, McGeehan performed various laboratory analyses of the specimens contained inside the individual envelopes from the rape kit. She also opened the separate bag containing D.H.'s clothes, and performed various analyses on the articles of clothing. Vaginal swabs in the rape kit tested positive for the presence of semen, as did the victim's panties. Her analyses completed, McGeehan placed the vaginal swabs from the rape kit inside separate manila envelopes and placed a cutting from the victim's panties inside another manila envelope. She then sealed each manila envelope before placing them all in a larger envelope, which she sealed, packaged, and then shipped by United Parcel Service (UPS) to Faron Brewer, a forensic serologist specializing in DNA analysis at the Department of Forensic Sciences Mobile laboratory.

On October 5, 1993, Brewer received the package shipped by UPS from McGeehan. Brewer subsequently performed DNA analysis on the specimens inside and determined that the DNA structure of a semen stain found in the victim's panties and on a vaginal swab "matched" the DNA structure of a sample of the appellant's blood, which had also been submitted to Brewer for testing.

In arguing that there is a missing link in the chain of custody of the evidence samples collected from D.H. during the rape-kit examination, the appellant points to the evidence concerning the three envelopes discovered in the examining room by Nurse Kucucmarski and later placed by Deputy Wright inside the large envelope containing the other envelopes from the rape-kit examination. The appellant notes that Nurse Kucucmarski was not present during the rape-kit examination performed on D.H., did not see what items were placed into the three envelopes, and could not know with any certainty what the contents of the three envelopes were, because she did not open the envelopes before turning them over to Deputy Wright, who also never opened the envelopes. The appellant further notes that Nurse Shoemaker did not see the three envelopes in question after their discovery was reported to her over the telephone by Nurse Kucucmarski, and did not positively identify the three envelopes at trial as being envelopes she had collected during the rape-kit examination of D.H. The appellant maintains that there is some question as to whether the three envelopes ever actually contained evidence samples collected in the rape-kit examination performed on D.H. He says that it is only a matter of "pure speculation" as to what the three envelopes contained. Furthermore, he argues that even if the three envelopes in fact contained specimens from the rape-kit examination of D.H. and were inadvertently left out of the large rape-kit envelope into which Nurse Shoemaker placed the other evidence envelopes from the rape kit, the integrity of the contents of the three envelopes was compromised by the fact that they were left unattended in the examining room and were actually in nobody's custody for a period of time. He points also to testimony indicating that other hospital personnel may have had access to the examining room after the rape-kit examination was completed. Once the three envelopes were placed by Deputy Wright into the large rape-kit envelope with the other evidence envelopes holding rape-kit specimens, the appellant argues, it became impossible to ...


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