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Duff v. State

Court of Appeals of Arkansas, Division II

February 14, 2018

JAMES ERNEST DUFF APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE MILLER COUNTY CIRCUIT COURT [NO. 46CR-16-454] HONORABLE BRENT HALTOM, JUDGE

          Phillip A. McGough, P.A., by: Phillip A. McGough, for appellant.

          Leslie Rutledge, Att'y Gen., by: Adam Jackson, Ass't Att'y Gen., for appellee.

          BART F. VIRDEN, JUDGE.

         A 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.

         I. Summary of Trial Testimony

         On May 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.

         II. Discussion

         A. Chain of Custody

         The 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.

         Officer 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 bag.

         Detective 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 property room.

         On 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.

         Because 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 ...


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