State v. Smith

¶1MEMORANDUM DECISION

¶2T 1 Defendant Brian Avery Smith appeals his convictions for possession of a controlled substance, a third-degree felony, see Utah Code Ann. § 58-37-8(2)(a)G) (2012)1 and possession of drug paraphernalia, a class B misdemeanor, see id. § 58-37a-5(1). He argues that the trial court erred by refusing to consider his motion to suppress evidence and by admitting evidence of a broken crack pipe, a twist of cocaine, and a related lab report without an adequate chain of custody. We affirm.

¶3I. The Motion To Suppress

¶412 Defendant argues that the trial court erred when it refused to consider his motion to suppress evidence on the ground that the motion was untimely under rule 12(c)(1)(B) of the Utah Rules of Criminal Procedure. The interpretation of a rule of procedure is a question of law that we review for correctness. See State v. Sosa, 2011 UT 12, ¶ 3, 248 P.3d 482. We interpret statutes and rules according to their plain meaning and "need not look beyond the plain language unless we find some ambiguity." State v. MacGuire, 2004 UT 4, ¶ 15, 84 P.3d 1171.

¶5T3 At a pretrial conference held on November 6, 2009, Defendant's counsel asked the trial court to continue the trial and informed the court that she would be filing a motion to suppress.2 The State objected to *1150the filing of the motion on the ground that it would be untimely pursuant to rule 12(c)(1)(B) of the Utah Rules of Criminal Procedure because it needed to have been filed five days prior to May 20, 2008, the first scheduled trial date. The court granted the continuance and set the trial for December 28-24, 2009, but agreed with the State that the motion to suppress would be untimely. On November 20, the State filed a motion to continue the trial, which was granted. Defendant's counsel then filed a motion to suppress on January 8, 2010. At a scheduling conference held a week later, Defendant's counsel requested a hearing on the motion. The State again argued that the time for filing the motion to suppress had expired prior to the first scheduled trial date. The court agreed with the State that the motion was untimely and declined to schedule an evidentiary hearing on the motion. The trial was held in March 2010.

¶6T4 Rule 12(c) of the Utah Rules of Criminal Procedure requires a defendant to file a motion to suppress "at least five days prior to the trial"3 Utah R.Crim. P. 12(c)(1)(B). Defendant states-and the emphasis is his-that if the rule meant that any motion must be filed five days "prior to the imitial trial date that was set, regardless of any trial date changes, it would indicate as much." He argues that, based on that plain language of the rule, the word "trial" is unambiguous because the reference to a "trial" in the rule "necessarily requires an actual trial to take place." Thus, Defendant contends that the motion to suppress was timely filed in accordance with the rule because it was filed well before the trial in this case.

¶7T5 We agree with Defendant that the rule's use of the word "trial" refers to the actual trial-not merely the date for which trial was first scheduled.4 Thus, we conclude that the trial court erred by determining that the motion was untimely.5

¶816 The State argues that any error in the trial court's refusal to consider the motion to suppress was harmless. "We will reverse an erroneous evidentiary ruling only if, absent the error, there is a reasonable likelihood that there would have been a more favorable result for the defendant." State v. Kohl, 2000 UT 35, ¶ 17, 999 P.2d 7 (citation and internal quotation marks omitted).

¶9T7 The procedural posture of this case is analogous to that of State v. Ramirez, 817 P.2d 774 (Utah 1991), in which a defendant filed a motion to suppress evidence on the basis that, among other things, the stop and seizure were unlawful because the officer in that case did not have an objective, articula-ble suspicion that the defendant had committed a crime. See id. at 777, 785. The trial court took this particular basis for the motion to suppress under advisement but never explicitly ruled on it. See id. at 777. The Utah Supreme Court stated that this effectively "was the same as a denial of the motion, but a denial without the active participation of the court." Id. at 787. The Court noted that,

in cases in which factual issues are presented to and must be resolved by the trial court but no findings of fact appear in the record, we assume that the trier of facts found them in accord with its decision, and we affirm the decision if from the evidence *1151it would be reasonable to find facts to support it.

¶10Id. (citation and internal quotation marks omitted). See also State v. Lovegren, 798 P.2d 767, 771 & n. 10 (Utah Ct.App.1990) (accepting the undisputed trial evidence even in the absence of factual findings when considering an appeal of the trial court's decision on a motion to suppress).

¶1118 Here, as in Ramirez, the trial court did not consider the merits of the motion to suppress-or at least left no record of doing so. As a result, we can evaluate the merits of the motion only if the facts adduced at trial are undisputed. See Ramirez, 817 P.2d at 788 n. 6. We look to the motion to suppress to determine the scope of the argument and, consequently, what trial evidence we should consider.

¶1219 The motion to suppress argues only that the basis for the stop was "purely speculative" and that the police officers had no reasonable, articulable suspicion to stop and question Defendant. Specifically, the motion contends that the State failed to establish the reliability of the police officers' observations made via the surveillance camera because the police report did not mention the camera's resolution, how far away from the camera the purported drug exchange occurred, or the ability of the officers to observe the exchange while monitoring the surveillance video.6 On appeal, Defendant has not raised any issue related to the reliability of the officers' observations, presumably because the trial testimony disposed of those concerns.7 Instead, Defendant now contends that we have no basis for considering the merits of the motion because Defendant was "denied the opportunity to develop the record and no decision was entered on the merits."

¶13110 Consistent with the latter argument, Defendant's appellate brief mentions that the facts related to the stop and the alleged consent to search were disputed.8*1152However, he did not identify any factual disputes in his motion to suppress. In fact, Defendant's motion discusses only the facts from the police report. "Generally, a defendant who fails to bring an issue before the trial court is barred from asserting it initially on appeal." State v. Archambeau, 820 P.2d 920, 922 (Utah Ct.App.1991). Therefore, our consideration of the State's harmless error argument necessarily focuses on the issues raised in the motion itself. We noted above that the State presented unrefuted evidence at trial regarding the quality and location of the camera relative to the drug exchange. Because this undisputed evidence defeats the only argument raised in the motion to suppress, we conclude that the trial court's refusal to consider the motion to suppress was harmless.

¶14111 At oral argument, Defendant's counsel stated that an evidentiary hearing need not be limited to the issues raised in a motion to suppress, implying that we can consider the alleged factual dispute on appeal because the trial court could have addressed it at a hearing on the suppression motion had it held one. It may be within a trial court's purview to consider other grounds for suppression that arise at an evidentiary hearing. See, e.g., Evanoff v. State, 2011 WL 1431520, at *8 (Tex.App. April 14, 2011) (noting that, at a hearing on a motion to suppress, the parties addressed an issue that had not been raised in the motion). Nevertheless, it is speculative to suggest that facts contrary to what was in the police report might have emerged at a suppression hearing even though they did not emerge at trial, Therefore, our review is limited to the issues expressly raised in the motion to suppress and we do not consider any newly claimed factual disputes.9 See Archambeau, 820 P.2d at 922.

¶15II. Chain of Custody

¶16{12 Defendant also argues that the trial court abused its discretion by admitting evidence of the crack pipe, the cocaine, and a related lab report because the State failed to establish an adequate chain of eustody or explain why the cocaine's appearance at trial differed dramatically from its purported appearance at the time of seizure. "A trial court's determination that there was a proper foundation for the admission of evidence will not be overturned unless there is a showing of an abuse of discretion." State v. Torres, 2003 UT App 114, ¶ 7, 69 P.3d 314 (citation and internal quotation marks omitted).

¶17"13 Defendant begins with the premise that the degree of proof needed to establish an uninterrupted chain of custody depends on the nature of the evidence at issue.

If the evidence is unique, readily identifiable and resistant to change, the foundation for admission need only be testimony that the evidence is what it purports to be. Alternatively, if the evidence is open to alteration or tampering, or is not readily identifiable, the trial court requires a more elaborate chain of custody to establish that the evidence has not been tampered with or altered.

¶18United States v. Clonts, 966 F.2d 1366, 1368 (10th Cir.1992) (internal citation omitted). Defendant also suggests that controlled substances can be easily altered and are susceptible to substitution. See State v. Petralia, 110 Ariz. 530, 521 P.2d 617, 623 (1974). Defendant contends that the cocaine and crack pipe in this case were not unique or "readily identifiable" and that they were susceptible to alteration by tampering or contamination. Therefore, to support their admission into evidence, Defendant insists that the State *1153was required to show "a more stringent foundation entailing a chain of custody of the item with sufficient completeness to render it improbable that the original item has either been exchanged with another or been contaminated or tampered with." United States v. Cardenas, 864 F.2d 1528, 1531 (10th Cir.1989) (emphasis, citation, and internal quotation marks omitted).

¶19{14 Defendant argues that the chain of custody was broken here because the evidence was mislabeled when it was placed into an evidence locker and the State failed to explain who relabeled and moved it from an evidence locker to the evidence room or where the evidence was prior to the time it was transferred to the Utah State Crime Lab. Defendant contends that the trial court erred by admitting the evidence because the State failed to establish an adequate chain of custody.

¶20115 Showing a reliable chain of custody is just one way to authenticate evidence. Evidence is generally admissible if "the trial court is satisfied that the [evidence] has not been changed or altered[.]" State v. Hagle Book, Inc., 583 P.2d 73, 74-75 (Utah 1978).

Before a physical object or substance connected with the commission of a crime is admissible in evidence there must be a showing that the proposed exhibit is in substantially the same condition as at the time of [the] crime. The cireumstances surrounding the preservation and custody of the article and the likelihood of tampering are factors to be considered in determining its admissibility. -If after consideration of these factors the trial court is satisfied that the article or substance has not been changed or altered, [it] may permit its introduction into evidence.

¶21Id. (emphasis added) (citation and internal quotation marks omitted). Onee the court admits the evidence, the jury may then " "weigh the evidence based on its assessment of the showing of chain of custody.'" Torres, 2003 UT App 114, ¶ 8, 69 P.3d 314 (quoting Eagle Book, 583 P.2d at 75).

¶221 16 The trial testimony showed that after seizing the cocaine and a broken glass pipe from Defendant, Officer Flores handed those items to Officer Garayeochea, who subsequently gave them to Officer Naegle to be booked into evidence. When Officer Naegle took the pipe and cocaine to the evidence room at the Salt Lake City Police Department (SLCPD), no evidence technicians were available, so he packaged, sealed, and initialed the evidence before placing it in an evidence locker. However, he used the wrong case number when he labeled the evidence bag and recorded the evidence in the evidence log. When a detective sereened the case three days later, he noticed that the evidence log listed no evidence associated with Defendant's case number. He contacted Officers Garaycochea and Flores who informed him that Officer Naegle had placed the items in the evidence locker but had "put it under the wrong case number." An unidentified evidence technician subsequently relabeled the evidence and placed it in the appropriate area of the evidence room.

¶23T 17 About nine months after the evidence was seized, an evidence technician retrieved the evidence from the general property room and gave it to a courier who delivered it to the Utah State Crime Lab for testing. The forensic chemist who tested the cocaine testified that the package was sealed when it arrived and that her notes about the package did not indicate that it looked as if it had been opened before she received it.

¶241 18 The State showed that both the evidence lockers and the evidence room are secured areas. The State also explained that onee items are placed in an evidence locker or given to an evidence technician, only the evidence technicians have access to it. When officers use an evidence locker to book an item, evidence technicians remove the item from the lockers and place it in the appropriate area of the evidence room. At trial, the witnesses who had handled the evidence uniformly testified that they had not observed any indications that the package containing the evidence had been tampered with. In addition, Officer Naegle testified that he ree-ognized the evidence produced at trial as the items he booked into evidence because the tags on the items contained his name and initials. And Officer Garaycochea described the evidence bag as having the incorrectly numbered label underneath the label with *1154the correct number. The testimony established that the cocaine and the broken glass pipe were in the custody of the State-either the SLCPD or the State Crime Lab-from the moment that Officer Naegle first deposited them in the evidence locker. It is true that the State could not identify which evidence technician corrected the label or moved the evidence from the locker to the evidence room. But the lack of testimony from the evidence technicians who handled the evidence at various times implicates the weight of the evidence, not its admissibility. See State v. Wynia, 754 P.2d 667, 671 (Utah Ct.App.1988) ("A weak link in the chain of custody and any doubt created by it go to the weight of the evidence once the trial court has exercised the discretion to admit it.").

¶251 19 Defendant also argues that the weight and description of the cocaine tested at the lab and produced at trial were different than the weight and description of the cocaine seized from Defendant. He contends that this supports his argument and suggests a "high probability that the original evidence taken from [Defendant] had been exchanged with another or had been contaminated or tampered with."

¶26T20 At trial, witnesses testified that the average twist of cocaine weighs between 50 and 100 milligrams. In contrast, the lab report showed that the twist tested at the lab weighed 14 milligrams at the time of testing, an amount barely considered weighable by lab standards.10 Defendant contends that this testimony, along with the officers' failure to mention in their police report that the twist was smaller than normal, suggests possible tampering or substitution. However, there is no evidence of the actual weight of the cocaine at the time of seizure. Thus, Defendant's contention-that the weight of the cocaine at the time of testing establishes that the cocaine presented to the lab could be different from the cocaine allegedly seized from Defendant-is speculative.

¶27121 Similarly, we are not persuaded by Defendant's argument that the differing description of the cocaine in the police report as compared to the officers' descriptions of the cocaine exhibited at trial suggests tampering. Defendant points out that the police report described the seized cocaine as "hard" and "rocklike," but at trial, the officers described the exhibit as "white particles," "traces of white powder," or "granules." Both of the arresting officers, however, identified the cocaine and pipe introduced at trial as the same items they seized from Defendant. Officer Garaycochea examined the package of cocaine and testified that he recognized its contents as "basically what Detective Flores handed [him]," and Officer Flores identified the glass pipe with its broken end as the same one he removed from Defendant's pocket. Officer Naegle also testified that the "items that are in those packages [produced at trial were in] substantially the same condition as when [he] dropped them off at the evidence [locker]." Thus, notwithstanding the variations in descriptions and the officers' testimony that "these twists pretty much look all the same," that glass pipes are "all very similar," and that the twist produced at trial "look[ed] like any other twist," the trial testimony, if believed by the factfinder, was adequate to establish that the cocaine and pipe introduced into evidence were the same as those seized from Defendant. Any deficiencies in the chain of custody, like the inconsistencies in describing the contraband, go only to the weight of the evidence. See Wynia, 754 P.2d at 671.

¶28CONCLUSION

¶2922 We conclude that the phrase "prior to the trial" in rule 12(c)(1)(B) of the Utah Rules of Criminal Procedure means prior to the date that the trial actually occurs. As a result, the trial court erred by concluding that Defendant's motion to suppress was untimely. Nonetheless, the error was harmless because the undisputed evidence defeats the only argument that Defendant raised in his motion to suppress. We also reject Defendant's chain-of-custody argument and conclude that the court did not abuse its discretion by admitting into evidence the glass pipe, cocaine, and related lab report.

¶301 23 Affirmed.

¶3124 I CONCUR: JAMES Z. DAVIS, Judge.