Opinion
No. CR-05-2384.
Decided June 27, 2008.
Appeal from Lauderdale Circuit Court (CC-05-75)
On Return to Remand
The appellant, Ren Hawkins Brooks, was convicted of two counts of first-degree sodomy, violations of § 13A-6-63(a)(3), Ala. Code 1975, and first-degree sexual abuse, a violation of § 13A-6-66(a)(3), Ala. Code 1975. He was sentenced to concurrent terms of 25 years in prison on the sodomy convictions and 10 years in prison on the sexual-abuse conviction.
By an amendment effective July 1, 2006, subsection (a)(3) was deleted from § 13A-6-66. The provisions of that subsection were reenacted as § 13A-6-69.1, and the offense was made a Class B felony.
Brooks was first tried in February 2006. A mistrial was declared after the jury was unable to reach a verdict. Brooks was tried a second time in August 2006 and was convicted of two counts of sodomy in the first degree and one count of sexual abuse in the first degree. He appealed to this Court.
On August 31, 2007, we remanded this case to the circuit court with instructions that that court conduct an in camera review of records from the Children's Advocacy Center and Rape Response relating to the victim, which Brooks argued he was entitled to, and determine whether the records contained any exculpatory evidence or evidence that would tend to impeach the victim's credibility. See Brooks v. State, [Ms. CR-05-2384, August 31, 2007] ___ So. 2d ___ (Ala.Crim.App. 2007).
The circuit court complied with our instructions and submitted the following order on return to remand:
"As directed this court has obtained the counseling records from the Cramer Children's Center (formerly known as the Children's Advocacy Center) and from Rape Response. The court has carefully read said records and examined them for potentially exculpatory information. Nowhere in said records was it found that the victim made a statement inconsistent with her in-court testimony or inconsistent with her prior out-of-court statements. The records would not be relevant to impeach the victim's credibility. Nothing in said records is otherwise exculpatory.
"After weighing the reasons for the privilege against the appellant's right to confront and cross-examine witnesses against him this court determines that disclosure of the records would not be appropriate in this case."
We have examined the records, which were filed under seal with this Court, and agree with the circuit court that the records contain nothing remotely exculpatory or inconsistent with the victim's statements or with her trial testimony. Accordingly, we affirm the circuit court's denial of Brooks's motion for access to the records from the Cramer Children's Center (formerly the Children's Advocacy Center) and Rape Response.
The State's evidence tended to show that H.F. was 14 years old at the time of the second trial. H.F. testified that from the time she was 8 until she was 11 Brooks molested her. She said that it started with Brooks touching her "private areas" and that it progressed to him performing oral sex on her and Brooks having H.F. perform oral sex on him.
Brooks raises a number of other issues in his brief to this Court. However, because it is necessary to reverse the convictions in this case we address only the issue that merits reversal.
Brooks argues that the circuit court abused its discretion in allowing the State to introduce test results indicating that H.F. had Type 1 herpes when, he argues, the State failed to establish a sufficient predicate for the samples. Specifically, he argues that the State failed to establish a proper predicate for the vaginal swabs taken from H.F., the blood drawn from H.F., and the blood drawn from Brooks.
The State argues that any weak links in the chain of custody affected the credibility of the evidence and not its admissibility and that the test results were correctly received into evidence.
The record shows that when the State attempted to introduce the test results Brooks objected and argued that he had not been given an opportunity to cross-examine anyone from the lab where the tests had been conducted. The circuit court sustained the objection. (R. 155.) The record further shows that when the State later introduced State's Exhibit 8, which was the test results, Brooks objected stating that there was no "chain of predicate." (R. 497.) The circuit court overruled the objection and allowed the test results to be admitted.
Brooks's objection that there was no "chain of predicate" was sufficient to preserve this issue for appellate review. See Ex parte Works, 640 So. 2d 1056 (Ala. 1994) (noting that objection that "proper predicate" had not been laid was sufficient to preserve issue for appellate review); Jennings v. State, 588 So. 2d 540 (Ala.Crim.App. 1991) (noting that "improper predicate" and "that is not the proper way to do that" were sufficient objections issue for appellate review).
Dr. Ashley Burchfield, a physician at Rogersville Family Practice, testified that she examined H.F. in October 2004. She said that she used a swab to collect a sample from the blisters on H.F.'s genitals, that she put the swab in a "collection tube," and that she sent the swab to Quest Diagnostics Laboratory in Atlanta for testing. Dr. Burchfield said that about one week later she drew blood from H.F. and also sent the blood to Quest Diagnostics for testing. Dr. Burchfield explained that herpes has two forms — Type 1 and Type 2. She testified that Type 1 typically is cold sores and that Type 2 is genital blisters. Dr. Burchfield further testified that Type 1 herpes can be caused by receiving oral sex from an infected individual.
Dr. Thomas Burgess, the technical director for Quest Diagnostics Laboratory in Atlanta, testified that he is in charge of quality control for the lab. He testified concerning the general procedures and protocols used by Quest Diagnostics to ensure the integrity of the various samples sent to Quest Diagnostics for testing. The report generated by Quest on the vaginal swab and blood sample taken from H.F. was admitted during Dr. Burgess's testimony. (Exhibit 8.) Dr. Burgess explained the results of the tests conducted on the samples. He testified that the vaginal swab indicated that H.F. had herpes and that the blood test enabled the lab to isolate and determine that H.F. had Type 1 herpes. Dr. Burgess could not testify to any specifics concerning the samples taken from H.F. and tested at the lab.
Brooks presented the testimony of Dr. James Fitts, Jr., a physician in Columbia, Tennessee. He testified that he was contacted and asked to conduct a herpes test on Brooks. He said that he drew blood and sent it out for testing and that the tests revealed that Brooks had Type 1 herpes. At the end of Dr. Fitts's testimony Brooks admitted the test results as Defendant's exhibit 5.
We note that if there was error in admitting Defendant's exhibit number 5, it was invited by Brooks. See Bedsole v. State, 974 So. 2d 1034 (Ala.Crim.App. 2006).
The Alabama Supreme Court has explained the following concerning "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)."
Ex parte Holton, 590 So. 2d 918, 920 (Ala. 1991).
In this case the chain of custody for the vaginal swab and the blood sample taken from H.F. is totally lacking. In regard to the vaginal swab, the record shows that Dr. Burchfield took a sample, put it in a tube, and sent it to Quest Diagnostics. There is no testimony concerning the method used to safeguard the sample after it was collected and sent to the lab. Neither is there any testimony as to how the samples were transported from Dr. Burchfield's office to the lab for testing. Indeed, no individuals in the chain of custody, other than Dr. Burchfield, are identified. We do not know the individual who accepted the sample at the lab or the individual who conducted the tests on the samples. We do not know whether the samples were received at the lab in the same condition as when they were sealed and transported. The record is totally devoid of the requisite chain of custody for these samples. We have no means of determining whether the integrity of the samples was protected from the time they were collected until they were tested at the lab. There is even less testimony on the chain of custody for the blood sample. There are many missing links in the chain of custody for both the vaginal swab and the blood sample.
In Birge v. State, 973 So. 2d 1085 (Ala.Crim.App. 2007), a case that presents strikingly similar facts to this case, we held that the State failed to present a sufficient chain of custody for samples collected from the victim's body. In holding that the circuit court erred in allowing a doctor to testify about the results of the tests conducted on the samples, we stated:
"The chain of custody for the samples removed from Cecil's body contains several missing links; the chain of custody is so deficient in this case that we are unable to identify precisely how many people handled the samples Dr. Pless removed from Cecil's body. This is significant because Dr. Pless testified that a number of people would have handled the samples. We can infer from the record that a courier transported the samples, but we are uncertain of the date of the transfer because Dr. Pless conducted the autopsy on May 25, 2001, and testified that the samples would have been transferred to the lab the following day, but the samples were apparently not received by the analyst or analysts until May 29, 2001. We would expect that someone at the laboratory received the samples and catalogued them into a tracking system; that the person who received the samples would have placed them in a secure, temperature-controlled location until the analyst or analysts retrieved the samples for testing; that the analyst or analysts would have picked up the samples from the secure location and would have safeguarded them during the testing process to ensure that the samples were not contaminated or that the reliability of the test results was not otherwise compromised. However, all of the foregoing are matters of pure speculation because the State failed to establish the chain of custody for the samples after Dr. Pless's assistant placed them in the refrigerator. The State failed to identify any of the links who handled the evidence after Etame secured it, and it therefore could provide no information about the receipt, disposition, and safeguarding and handling of the evidence, all of which are required by Ex parte Holton. Without this necessary information, the State's chain of custody has several missing links, and missing links, the Alabama Supreme Court has said, render evidence inadmissible.
"The evidence for which the State failed to establish a proper chain of custody was the crux of the State's case. The toxicology evidence presented the only proof that Cecil did not die of natural causes, as had been initially believed. Only the toxicology results established that Cecil died of a multiple-drug overdose, and that evidence allowed the jury to conclude that the State presented sufficient proof that Birge had murdered her husband. If the toxicology report had not been admitted, Dr. Pless could have testified about the results of his own observations from the autopsy, but he would not have been able to testify about the drugs discovered in Cecil's system, nor would he have been able to testify that the cause of death was a multiple-drug overdose.
"In Lee v. State, 748 So. 2d 904 (Ala.Crim.App. 1999), overruled in part on other grounds, Pruitt v. State, 954 So. 2d 611 (Ala.Crim.App. 2006), we reversed a conviction as a result of missing links in the chain of custody. Lee was convicted of unlawful distribution of a controlled substance following a drug sale to an undercover agent. The testimony at Lee's trial established that the crack cocaine was delivered by the undercover agent, David Larimer, to a second agent, Mike Gulledge, who delivered it to drug chemist Kelly Cannon at the Alabama Department of Forensic Sciences for testing. The individuals who handled the evidence were identified, but `[t]his is essentially all of the testimony contained in the record concerning the chain of custody . . . in this case.' Lee, 748 So. 2d at 911. We reversed the conviction and stated:
"`In the instant case, there were clearly missing links in the State's chain of custody. There is no evidence, either direct or circumstantial, reflecting what Larimer did with the substance he purchased from Lee or reflecting how Larimer handled and safeguarded the substance while it was in his possession before it was delivered to Gulledge. There was no evidence reflecting that the substance was ever sealed in an evidence envelope or safeguarded in any way by Larimer. There is no evidence, either direct or circumstantial, reflecting what Gulledge did with the substance while it was in his possession or how Gulledge handled or safeguarded the substance while it was in his possession. There is no evidence reflecting that the substance was ever sealed in an evidence envelope or safeguarded in any way by Gulledge. Moreover, Cannon did not state that the substance was in a sealed condition when she received it. Her testimony reflected only that she sealed the envelope the evidence was in after she completed her testing. To reiterate, there is no testimony reflecting where the substance was kept or how it was kept before it was presented to Cannon. Nor was there any evidence that when the substance was received at the lab it was packaged so as to be tamper-resistant.
"`In Ex parte Cook, 624 So. 2d 511 (Ala. 1993), the Alabama Supreme Court held that a link in the chain of custody of certain evidence (cigarette butts and socks) was missing even though Birmingham police officer Belinda Weldon testified that she had directed another officer to collect the evidence and had watched the officer collect it. The Alabama Supreme Court held that the evidence was inadmissible because "the State did not establish when these items were sealed or how they were handled or safeguarded from the time they were seized until [Phyllis] Rowland[, a forensic serologist at the Alabama Department of Forensic Sciences] received them." 624 So. 2d at 514. The Alabama Supreme Court said that the evidence in question "was inadmissible under Holton." 624 So. 2d at 514. Thus, in Lee's case, as in the Cook case, the State failed to show for the record each "`of the three criteria as to each link[; thus,] the result is a "missing" link, and the item is inadmissible.'" Harrison v. State, 650 So. 2d 603, 605 (Ala.Cr.App. 1994) (quoting Ex parte Holton, 590 So. 2d 918, 920 (Ala. 1991)).
"`Moreover, this is not a case where a witness specifically identified the evidence and where the condition of the evidence was not an issue in the case. Section 12-21-13, Ala. Code 1975 provides:
"`"Physical evidence connected with or collected in the investigation of a crime shall not be excluded from consideration by a jury or court due to a failure to prove the chain of custody of the evidence. Whenever a witness in a criminal trial identifies a physical piece of evidence connected with or collected in the investigation of a crime, the evidence shall be submitted to the jury or court for whatever weight the jury or court may deem proper. The trial court in its charge to the jury shall explain any break in the chain of custody concerning the physical evidence."
"`In Land v. State, 678 So. 2d 201 (Ala.Cr.App. 1995), aff'd, 678 So. 2d 224 (Ala. 1996), a case which appears to rely on § 12-21-13, this court ruled that where a witness can specifically identify the evidence, and its condition is not an issue in the case, then the State is not required to establish a complete chain of custody in order for the evidence to be admitted into evidence. We stated: "The eyeglasses were admissible without establishing a chain of custody because [the testifying officer] was able to specifically identify them, and their condition was not an issue in the case." Land, 678 So. 2d at 210. However, the Land opinion distinguished Cook stating:
"`"The State was required to establish a complete chain of custody for the cigarette butts and socks collected at the scene of the homicide in Ex parte Cook, 624 So. 2d 511 (Ala. 1993), but not for the eyeglasses collected at the scene of this homicide because the items in Cook, unlike the eyeglasses here, were subjected to scientific analysis and their condition was at issue."
"`Land v. State, 678 So. 2d at 210.
"`The evidence in Lee's case cannot be admissible under § 12-21-13, Ala. Code 1975, because no witness directly testified at trial that the substance tested by Cannon was the same substance Lee had sold to Larimer. Moreover, the condition of the substance, i.e., whether it was a cocaine, was the crux of the case. Therefore, because there were missing links in the chain of custody, the trial court erred in admitting the substance into evidence over Lee's chain-of-custody objection.'
"748 So.2d at 912-13.
"In Lee, each person who handled the evidence was identified; here, we have no information identifying anyone who handled the samples in this case after Dr. Pless saw Etame put them in the refrigerator. Although Dr. Pless testified that he placed the samples in tubes and labeled them, then placed the tubes in biohazard bags, we have no testimony — direct or circumstantial — indicating the condition of the evidence when it was received at the lab, and we have no evidence as to the manner in which the samples were handled or safeguarded after the samples were placed in the refrigerator on May 25. Thus, as in Lee, the State failed to present testimony about the safeguarding and handling of the evidence. This deficiency is compounded by the State's failure to identify many of the links in the chain.
"We note, additionally, that Dr. Pless's testimony created some discrepancy regarding the handling of the evidence, because he stated that the samples would have been transferred on May 26, yet the toxicology report indicates the samples were received on May 29, leaving a gap of several days when the whereabouts of the crucial evidence are unknown. While we could surmise that Dr. Pless was mistaken about the date of transfer, and we could infer that a courier picked up the samples on the next working day after the Memorial Day holiday, it would be wholly inappropriate for us to engage in such surmise and inference, because this is precisely the type of testimony that the State should have presented to establish the chain of custody for the samples. Thus, as in Lee, the State failed to prove a complete chain of evidence for the crucial toxicology evidence, and the trial court erred to reversal when it allowed Dr. Pless to testify to the results of the toxicology analysis.
Birge, 973 So. 2d at 1094-99 (footnotes omitted). We held inBirge:
"As in Green [v. Alabama Power Co., 597 So. 2d 1325 (Ala. 1992),] the case before us presents missing links from the chain of custody for evidence that was crucial to prove the State's case. Although the State contends that the chain it presented has only weak, not missing, links, that argument is not persuasive. The record before us contains no testimony identifying anyone who handled the evidence after it was placed in the refrigerator. Thus, not only does the record lack the necessary testimony about the receipt, disposition, and safeguarding by those who handled the evidence, it lacks the very identification of those individuals who came into contact with it after Dr. Pless gave it to Etame. Importantly, there is no testimony from the analyst who received the evidence indicating what evidence was received, when it was received, or that it was received in a sealed package that appeared not to have been tampered with. There is simply no evidence to prove who handled the samples extracted by Dr. Pless from Cecil's body, that those samples were safeguarded before they were analyzed, or that the samples were, in fact, the ones removed from Cecil's body. Contrary to the State's assertions at oral argument, the fact that Dr. Pless had general knowledge of the procedures used at the AIT lab could not satisfy the requirements of Ex parte Holton that the State identify the links and provide testimony about the receipt, disposition, and safeguarding of the evidence. Nothing in Alabama caselaw permits such speculative and generalized testimony to satisfy the requirements to prove the chain of custody. Nor can this Court engage in conjecture to fill in large gaps in the State's inadequate chain of custody."
Birge, 973 So. 2d at 1102. See also 77 A.L.R.5th 201, Authentication of Blood Sample (2000).
In Suttle v. State, 565 So. 2d 1197, 1199 (Ala.Crim.App. 1990), we held that it was reversible error for the court to allow test results conducted on a blood sample to be admitted when there was not a sufficient chain of custody for the sample. We stated:
"With regard to specimens taken from the human body, it is also incumbent upon the prosecution to show that the specimen analyzed was in fact the specimen taken from the defendant. In such cases, `[t]he "chain of custody" involves "the necessity of proving where and by whom the specimen was kept and through whose hands it passed." J. Richardson, Modern Scientific Evidence, Section 13.14a (2d ed. 1974).' Gothard v. State, 452 So. 2d 889, 890 (Ala.Cr.App.), cert. stricken, 450 So. 2d 479 (Ala. 1984). . . . `[W]here the substance analyzed has passed through several hands the evidence must not leave it to conjecture as to who had it and what was done with it between the taking and the analysis.' Rodgers v. Commonwealth, 197 Va. 527, 90 S.E.2d 257, 260 (1955) (emphasis added).
"The importance of the chain of custody of blood sample was demonstrated by this court Miller v. State, 484 So. 2d 1203 (Ala.Cr.App. 1986). There a lab technician took a blood sample from the defendant, placing it in `"a vacutainer type instrument"' which he then wrapped in tape and gave to a trooper. The trooper took the sample to the trooper post, `"put it in an envelope, sealed it and initialed it,"' then placed it `in "the mail,"' meaning the department's outgoing mail, not the United States mail. The toxicologist `received "this container in the mail"' and determined the blood alcohol level of the sample. 484 So. 2d at 1204.
"We held that the prosecution had failed to establish the requisite chain of custody because there was no showing of the use of the United States mail so as to raise the presumption that `"articles shipped by mail [United States Postal Service] are delivered in substantially the same condition as when placed in the mail box or post office."' 484 So. 2d at 1205."
In this case, the State failed to present a sufficient chain of custody for the vaginal swab and the blood sample collected from H.F. Accordingly, the circuit court erred in allowing testimony concerning the test results on those samples.
Moreover, the Alabama Supreme Court in Ex parte Phillips, 962 So. 2d 159 (Ala. 2006), addressed whether the erroneous admission of test results based on missing links in the chain of custody for the samples used for the test was harmless error, given the victim's testimony that the defendant had sexually abused her. The Phillips Court, reversing this Court's holding that the error was harmless, noted that "overwhelming evidence of guilt does not render prejudicial error harmless." 962 So. 2d at 165. The Supreme Court then wrote:
"Had the evidence of the chlamydial infections been excluded, the jury would have been provided essentially with the opposing versions of D.M. and Phillips, and if it had found his version to be more credible, or even if it found itself unable in the final analysis to determine who was telling the truth, it might have found itself unable to agree that Phillips was guilty beyond a reasonable doubt; it then could have returned a verdict of not guilty or perhaps have been deadlocked, necessitating a mistrial. Accordingly, we cannot ignore the probable effect on the jury of the inadmissible evidence of the chlamydial infections of both D.M. and her mother."
As the Alabama Supreme Court cautioned in Phillips, we cannot "ignore the probable effect" on the jury of the erroneous admission of the extremely prejudicial test results. This is especially true in this case given that Brooks's first trial ended in a mistrial, after this same evidence was admitted, because the jurors were unable to reach a unanimous verdict on the sodomy charges. (R. 45-48.)
Accordingly, we have no choice but to reverse Brooks's convictions and remand this case to the circuit court for proceedings consistent with this opinion.
REVERSED AND REMANDED.
McMillan, Shaw, and Welch, JJ., concur; Baschab, P.J., concurs specially, with opinion.
I agree with the majority's conclusion that we must reverse this case because the State did not establish an adequate chain of custody for the vaginal swab and blood sample collected from the victim. However, I write specially to note that the appellant raised several potentially meritorious issues which the State should be aware of in the event of a retrial.