FROM THE MILLER COUNTY CIRCUIT COURT [NO. 46CR-16-454]
HONORABLE BRENT HALTOM, JUDGE
Phillip A. McGough, P.A., by: Phillip A. McGough, for
Rutledge, Att'y Gen., by: Adam Jackson, Ass't
Att'y Gen., for appellee.
F. VIRDEN, JUDGE.
Miller County jury convicted appellant James Ernest Duff of
being a felon in possession of a firearm. The jury sentenced
him as a habitual offender to twelve years' imprisonment,
and he was ordered to pay a $10, 000 fine. He raises two
arguments on appeal. Duff argues that the trial court erred
(1) in admitting a firearm into evidence over his
chain-of-custody objection and (2) in denying his motion to
suppress evidence. We affirm.
Summary of Trial Testimony
22, 2016, Officer William Daugherty with the Texarkana
Arkansas Police Department stopped a vehicle with a defective
headlight. Officer Daugherty asked the driver whether there
were any weapons or anything illegal inside the vehicle, to
which Duff said that he had some knives in a bag. Officer
Daugherty asked to search the vehicle, and Duff consented.
Before the search began, Duff told Officer Daugherty that
there was also a gun inside the bag. Officer Daugherty
testified that Duff had told him that the .380-caliber
semi-automatic pistol did not belong to him, that it had been
in the borrowed vehicle's glove compartment, and that he
had unloaded it and placed it in his bag.
Chain of Custody
purpose of establishing chain of custody is to prevent the
introduction of evidence that has been tampered with or is
not authentic. Laswell v. State, 2012 Ark. 201, 404
S.W.3d 818. The trial court must be satisfied within a
reasonable probability that the evidence has not been
tampered with, but it is not necessary for the State to
eliminate every possibility of tampering. Id. Minor
uncertainties in the proof of chain of custody are matters to
be argued by counsel and weighed by the jury, but they do not
render the evidence inadmissible as a matter of law.
Id. Absent evidence of tampering, the trial
court's ruling will not be disturbed unless it was a
clear abuse of discretion. Id.
Daugherty testified that he recognized the firearm that the
State was attempting to introduce into evidence as the one he
had removed from Duff's bag inside the vehicle that Duff
had been driving that night. Officer Daugherty stated that he
had placed the firearm inside a package at the crime scene
and logged it into evidence in the department's property
room. Officer Daugherty conceded that the firearm was not in
the original packaging that he had placed it in at the scene
but stated that it was "a pretty identifiable
firearm." He further testified that he had written the
firearm's serial number in his report. Defense counsel
objected to introduction of the firearm, arguing that there
had been "a major break in the chain of custody"
because the original packaging from the scene was missing.
The trial court overruled the objection, noting that a weapon
with a serial number on it is a unique item, and admitted the
firearm into evidence. Officer Chase Dixon, who had assisted
Officer Daugherty at the scene, also identified State's
exhibit 2 as the firearm that had been taken from Duff's
Romeo Cross with the Texarkana Arkansas Police Department
testified that exhibit 2 looked like the firearm that he had
test fired the day before trial. He said that he had gone to
the property room, checked out the firearm on the property
log, fired it at the firing range, and returned it to the
property room. The property log was introduced into evidence,
and Detective Cross identified his signature showing that he
had checked out the firearm and returned it the day before
trial and that he had checked out the firearm to bring to
court on the day of trial. Detective Cross stated that, when
evidence is checked out and taken somewhere, it should be
signed out. Defense counsel produced a photocopy of the
firearm and pointed out that there was no notation on the
property log showing that it had been removed from the
appeal, Duff argues that the trial court erred in admitting
the firearm into evidence over his chain-of-custody
objection. He contends that the chain of custody was broken
because the firearm's original packaging was missing and,
although the firearm had been photocopied, there was no
notation in the property log as to who had opened the package
to make the photocopy and when that was done.
this piece of evidence had a serial number that could be
tracked from the crime scene to the property room and then to
the courtroom, we hold that the trial court did not clearly
abuse its discretion in concluding that there was a
reasonable probability that the evidence had not been
tampered with or otherwise compromised. Proof of the chain of
custody for interchangeable items like drugs or blood needs
to be more conclusive. Laswell, supra. The
firearm here was not an interchangeable item because its
serial number recorded at the scene matched the serial number
of the firearm introduced at trial. See Harris v.
State, 72 Ark.App. 227, 35 S.W.3d 819 (2000) (holding
that there was no error in introduction of the firearm into
evidence when an officer testified that he had seen another
officer write down its serial number and log it into evidence
at the property room, and that officer had retrieved the
firearm from the property room under that same number ...