Opinion
NO. 2011-CA-001369-MR
11-16-2012
THOMAS BROWN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Gene Lewter Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Bryan D. Morrow Assistant Attorney General Frankfort Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MONROE CIRCUIT COURT
HONORABLE EDDIE C. LOVELACE, JUDGE
ACTION NO. 10-CR-00107
OPINION
AFFIRMING
BEFORE: COMBS, KELLER, AND LAMBERT, JUDGES. COMBS, JUDGE: Following a jury trial, Thomas Brown was convicted of possession of a controlled substance (methamphetamine) in the first degree. In accordance with the jury's recommendation, the Monroe Circuit Court sentenced him to serve two-years' imprisonment.
Brown appeals that conviction and contends that the trial court erred by failing to grant his motion for a directed verdict. He argues that the Commonwealth failed to establish the chain of custody on a critical item of its evidence. Aluminum foil was presented in court and was described as bearing the residue of methamphetamine. Brown claims that the Commonwealth did not prove beyond a reasonable doubt that the foil offered into evidence in court was in fact the foil seized from his home. After our review, we affirm.
On April 16, 2010, State Police Detective Michael Dubree, Detective Eddie Murphy, and Trooper Robert Maxwell accompanied MacShane Barkley, a social worker, to Brown's mobile home. As part of a "knock and talk," Brown consented to a search of his home. Detective Dubree found a piece of aluminum foil containing residue of methamphetamine in Brown's bedroom. Brown was not arrested until January 6, 2011. At the time of the trial on June 10, 2011, Detective Dubree was on active duty in the military at Fort Sill, Oklahoma.
At trial, Barkley testified that he and Detective Dubree spoke to Brown on the front porch of his home and that Brown consented to a search of the premises. Barkley explained that Dubree began the search in the master bedroom and that the search lasted less than ten minutes. Barkley testified that Dubree found a piece of foil in a wastepaper basket beside the bed. On cross-examination, Barkley said that the residence was quite small. He admitted that he had not crossed the threshold into the master bedroom at the time the foil was recovered by Dubree.
Trooper Maxwell testified at trial that he and Dubree conducted a search of the master bedroom. Maxwell indicated that he searched the right side of the bed and that Dubree searched the left side. He stated that Dubree found some aluminum foil with a burned area and some residue on it. Maxwell explained that when Dubree questioned Brown about the foil, Brown admitted that it belonged to him and that he had a problem with methamphetamine. Maxwell could not pinpoint for the jury the area on the left side of the bed where the foil had been located.
Sgt. Jamie Heller, the primary evidence officer of the police post, testified that Detective Dubree personally entrusted the aluminum foil bearing the suspected methamphetamine to an evidence locker on post. Heller confirmed an unbroken chain of custody from that point on that included a release of the aluminum foil to Jennifer Hatfield, a forensic chemist. Hatfield, an analyst with the state crime lab, testified that her tests confirmed the presence of methamphetamine on the aluminum foil. She had not been at the scene when the foil was recovered.
On appeal, Brown contends that the Commonwealth failed to prove that the aluminum foil that was presented and discussed at trial was the same foil retrieved from his home. He argues that without this evidence, the case against him was not adequately proven and that he was entitled to a directed verdict. We disagree.
A proponent of evidence must only demonstrate a reasonable probability that the disputed evidence is authentic. Thomas v. Commonwealth, 153 S.W.2d 772 (Ky. 2004). Brown has neither alleged nor demonstrated that the disputed evidence was subject to tampering of any kind. There was no evidence that anyone other than those named in the chain of custody had access to the aluminum foil presented in court. No evidence in the record suggests that the aluminum foil recovered from Brown's bedroom was altered or replaced with some other material.
Sgt. Heller described the process for handling and preserving the foil, including the police protocol designed to assure integrity in the chain of custody. The statements of the other witnesses (including testimony about Brown's statements made at the scene) established with reasonable certainty that the aluminum foil presented to the court by the evidence officer is the same as that seized from Brown's home.
The evidence adequately proved the authenticity of the foil. Consequently, the trial court did not err by admitting the aluminum foil and the results of the forensic testing. Nor did it err by refusing to grant Brown's motion for directed verdict.
We affirm the judgment of the Monroe Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Gene Lewter
Department of Public Advocacy
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Bryan D. Morrow
Assistant Attorney General
Frankfort Kentucky