Russaw v. State
Russaw v. State
Opinion
The appellant, Robert Gene Russaw, was convicted of two counts of distribution of a controlled substance, cocaine, in violation of §
The evidence presented at trial tended to show that the appellant sold crack cocaine to an undercover police officer on two separate occasions. The appellant presents four issues for review on appeal.
Ex parte Holton,"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 appellant concedes in his brief that the chain of custody of State's Exhibit Number 1, the subject of the second drug buy, contained a "weak link" but not a "missing link." We agree. Thus the receipt of State's Exhibit Number 1 into evidence was not error.
The appellant, however, contends that there was a "missing link" in the chain of custody of State's Exhibit Number 2, the subject of the first drug buy. Officer James E. Taggart of the Tuscaloosa County Sheriff's Department testified that while working undercover in Houston County, he purchased crack cocaine (State's Exhibit Number 2) from the appellant. He then gave the cocaine to Officer Keith Gray of the Dothan Police Department. They placed the cocaine in a zip-lock bag and sealed it in a manila envelope. Officer Gray testified that he took the cocaine to the crime lab in Enterprise, Alabama, and that he gave it to a secretary there.
The next testimony regarding State's Exhibit Number 2 was from David Thorne, supervisor of drug chemistry at the Enterprise crime lab, who testified that he received State's Exhibit Number 2 from Marcus Cruse, who works with Mr. Thorne in the chemistry section of the lab. Neither the secretary who received the cocaine from Officer Gray and who was never identified, nor Mr. Cruse testified at trial. We, therefore, do not know to whom the secretary gave the cocaine to or from whom Mr. Cruse received the cocaine. Under the Holton analysis, there is a missing link in the chain of custody of State's Exhibit Number 2.
The circumstances here are similar to those in Ex parteGarrett,
For the foregoing reasons we find that the state failed to establish an adequate chain of custody of State's Exhibit Number 2. The appellant's conviction in CC-91-570 is reversed, and the cause remanded for further proceedings consistent with this opinion. The court, however, did not err in receiving State's Exhibit Number 1 into evidence. The state established an adequate chain of custody of this exhibit, which was the basis for the appellant's conviction in CC-91-569.
"The right to a speedy trial is triggered when a warrant of arrest is issued." Vincent v. State,
The appellant has also failed to show that the delay prejudiced him. The appellant was incarcerated while he awaited trial; however, this court has previously held that a 15-month incarceration does not substantially prejudice a defendant's rights. Kelley v. State,
The appellant was not denied his constitutional right to a speedy trial.
Because summations are not ordinarily transcribed in Alabama except in death penalty cases, Rule 19.4, A.R.Crim.P., we do not know what was said other than the specific matter objected to. We will not find reversible error where we cannot make an intelligent determination of the context of the alleged objectionable matter. Was the door opened by the opposing party? Was the comment a reply in kind? On balance we conclude that we should not reverse cases without more than this. The solution to this problem is to repeal that peculiar rule that does not require that closing arguments of counsel be recorded.
From our limited review, it appears from the conversation between the court and the attorneys that the comment made by the state's counsel was a reply in kind to an earlier argument made by defense counsel.
"The refusal of a requested written instruction, although a correct statement of the law, shall not be cause for reversal on appeal if it appears that the same rule of law was substantially and fairly given to the jury in the court's oral charge."
(Emphasis added.)
After reviewing the appellant's requested charge and the charges that the court gave the jury, we conclude that the appellant's requested charge was substantially given in the court's oral charge to the jury. No reversible error occurred in the court's *Page 238 failure to give the appellant's requested written charge.
The appellant's conviction in CC-91-570 is reversed and remanded for the reasons stated in Part I of this opinion. The appellant's conviction in CC-91-569 is affirmed.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
All the Judges concur.
Reference
- Full Case Name
- Robert Gene Russaw v. State.
- Cited By
- 8 cases
- Status
- Published