IN THE DISTRICTCOURTOF CHOCTAWCOTINTY
STATEOF OKLAHOMA
STATEOF OKLAHOMA,
Plaintiff,
FIB 5 PN 1
?OtjB
N o ' c F - 0 7 - 1 4 8 i l r r u '-i r \ " ' 'Ll q ' c c u i i T
VS.
BY
HARVEY DALE BOLDING,
Defendant.
DEPUTY
ORDER
Date: 215/08
The State confessesthe defendant'sMotion to Suppress/Dismissand the case is hereby
dismissedwith $500.00 court costs being assessedto the defendant. Defendantordered to
report to the cost administratorwithin 48 ho
JUDGE
E DISTRICTCOURT
'endant
rney fof State
day
I herebycertirythat on the rf
copyof the aboveorderto: DA and Don
ty Court
,206,I maileda trueandcorrect
IN THE DISTRTCTCOURT OF CHOCTAW COUNTY,
STATE OF OKLAHOMA
'2
e,
STATEOF OKLAHOMA.
Plaintiff,
CaseNo. CF-07-148
JudgeJamieWolfe
v.
HARVEY DALE BOLDING.
Defendant.
MOTION TO DISMISS
COMES NOW the Defendantand movesthe Court for its order dismissingthis
causeand showsthe following in support.
Facts
The Statehasprovided an insufficient chain of custodyfor the substancethey
allegedlyseizedthat is the basisof the chargesherein. The arrestingofficer, City of Hugo
Police Departmentofficer Jamie Milner testified at prelimitruryhearing that he storedthe
substanceover the visor in his vehicle for sometime, then kept the substancefor several
daysin his shirt pocket at home, then took it to the Choctaw County jail for storagewhere
he admittedlydid not maintain a log showing what, how much or when it was stored.
Milner testified he did not attemptto seal,secureor packagethe evidencein any way
beforehe deliveredthe substanceto the evidenceroom.
Law
Chain of custodymust be establishedand the Statemust show the officer took
reasonableprecautionsto preservethe original condition of the evidence.Driskell v. State,
659P.2d343 (OK CR 1983). It is the STATE'S BURDEN TO ESTABLISH A
COMPLETE CHAIN in order to lay the foundationfor admitting the evidence. Ib. The
- l -
purposeof the chain of custodyrule is to ensurethat physicalevidencehas not been
tamperedwith or altered. Moore v. State,761P.2d 866 (OK CR 1988). The Defendant
doesnot have to prove actual tampering or contamination,only an unreasonablyhigh
probability of contamination. Faulkenberryv. State, 1976 OK CR 131, others.
Application
Milner admits he kept the evidencehereinin a worn shirt pocket for severaldays,
at his home and elsewhere,before ever turning it in to a securestoragefacility. He
testifiedthe evidencewas not securedor packagedin any way during this time. Further,
it becameclear at the preliminary hearingthat the policy of the evidenceroom in
ChoctawCounty doesnot even involve an inventory of evidencewhen that evidence
involvesdrugs. Every other kind of evidence- for somereason- is subjectto an
inventory.
As a result of this handling of the evidence,the Stateis unableto meet its burden
to show a chain of custody fbecauseof the absenceof an inventory], and it is unableto
show it took reasonableprecautionsto preservethe original condition of the evidence
fbecausethe evidencetraveledfor sometime in an unpackagedway over the visor of
Milner's truck [where he admittedly storeddrugsbefore],and becausehe later storedthe
evidenceunsealed,unpackagedin a dirty shirt pocket that he admitted had storedother
drug evidence,and in his home and elsewhere/or days, This conduct mirrors that by the
officer inWilsonv. State, 1997OK CR 25I, wherethe Court of Criminal Appeals
reverseda conviction and remandedwith instructionsto dismisswhere the marijuana
boughtby an undercoverdrug buyer was kept in an unsealedbag hidden in his car or
home beforeit was deliveredto a DA investigatorbecauseit constituteda break in the
-2-
chainof custody.The Defendanthereinis not requiredto showthe evidencewasactually
with or altered,only thatMilner'shandlingof the evidenceresultedin an
tampered
risk.
unreasonable
Conclusion
Officer Milner's handling of the evidencepreventsthe Statefrom meetingits
burdento establisha chain of custody.
WHEREFORE, Defendantrespectfullyurgesthe Court for its order suppressing
the evidenceherein,and dismissingthis cause,and for such other relief as it finds just fair
and equitable.
Table of Authorities
I.
2.
3.
4.
Driskell v. State,659P.2d 343 (OK CR 1983).
Moorev. State,761P.2d866 (OK CR 1988).
Collier v. State,No. F-2004-1091[unpub.,see attac
Wilsonv. state,568P.2d342. 19770K CR 251.
ysu
Res
dH
Of:
. Jr..OBA #17873
The HaslamLaw Firm, PLLC
lI0 % N. Broadway
Hugo,OK 74743
[s80] 317-9280
[s80]3r7-e2s0
[email protected].
edu
Counsel for Defendant
CERTIFICATE OF SERVICE
The undersignedcertifies that on February05, 2008 a
foregoingwas deliveredto the office of the Choctaw County Di
G. DonaldHaslam,Jr.
- J -
y of the
FITED
OFCRIfrIIf{AL
III COURT
APPIALS
STAT€OFOKLAHOMA--
rE8- 3 2006
IIV THE COT'RT OT' CRIMIIfAL
APPEALS OF THE STATE OF
MIgHAEL
S. RIEHIE
OITLA}IOMA
8,tERt(
MORTARICE D. COLLIER,
NOT FOR PUBLICATION
Appellant,
v.
Case No. F 2004-1091
)
)
)
)
)
THE STATE OF OKLAHOMA,
Appellee.
suMIIARY
OPINION
c. JOHNSON, JIIDGE:
Appellant, Mortarice D. Collier, was convicted of Trafficking in Illegal
Dr-ugs (Marijuana), in violation of 63 O.S.2O01, S 2-475 (Count 1) and Failure
to Allrx-Tax Stamp, in violation of 68 O.S.2OO1,S 450.8(E|)(Count2l, in Craig
Count5r District Court, Case No. CF 2OA2-27. Mr. Collier waived jury trial and
a bench trial was held on July
Goodpaster, District
Judge.
29, 2OO3, before tJle Honorable James
Judgment
and Sentence was imposed on
Septernber 18, 2003. Judge Goodpaster sentenced Collier to twelve (L2l years
Iine on Count
imprisonrnent with a TWenty-Five Thousand Doll* ($ZS,O00.OO)
1 and to five (5) years imprisonment on Count 2. Judge Goodpaster suspended
all but One Thousand Dollars ($ 1,000.00) of the fine on Count 1 and ordered
the sentences be served concurrently with credit for time served. The trial
court on November 24, 2OO4 modified the sentence of imprisonment on Count
1 from twelve (12lryears to five (5) years. Thereafter, Collier was granted an
appeal out of tirne and filed this appeal. t
Mr. Collier raises four (4) propositions of error:
1.
The preliminary hearing evidence was insufficient to support
binding over Appellant for trial;
2.
Appellant was denied his constitutional right to a speedy trial;
3.
lncarceration fees charged against Appellant should be vacated
or modified; and,
4.
Trooper Perry provided an insufficient chain of custody for the
substance he seized that was the basis of the charges against
Appellant.
After thorough consideration of the propositions raised, the Original Record,
Transcripts, briefs and arguments
of the parties, w€ find that Collier's
convictions for both Trafficking in Illegal Drrgs and Failure to Affix Ta< Stamp
should be reversed and remanded with instntctions to disrniss for the reasons
set forth below.
The record reflects the State did not provide adequate proof of the chain
of custody of the marijuana recovered from Collier's vehicle. The State did not
prove the location of the substance was secured for the ten days prior to its
transportation to the OSBI laboratory for analysis and the packaging of the
substance was not in the same forrn or condition as it was at the time the
officer recovered the drugs from
Collier's vehicle.
While there is only
speculation that tampering may have occurred, chain of custody was not
t Collier was originally granted an appeal out of time in Case No. PC 2OO4-384 on May 1 1,
2004. The appeal was still not timely filed, and Collier was granted a second appeal out of time
on October6, 2004 in PC 2004-880.
sufficiently established and the State did not show the law enforcement oflicer
took reasonable precautions to preserye the original condition of the evidence.
Driskell u. state, 1983 OK CR 22, X 59, 659 P.2d 343, 354; see also
Faulkenberryu. State, 1976 OK CR 131, nX 7-8,551 P.2d 271,273 (Statedid
not establish how marijuana got to the OSBI and could not explain the ten day
time gap in deliv ery; reversed and rernanded for a new trial) ; Conde-Hernandez
u. State, L977 OK CR 2O4, nn 5-7,565 P.2d 7O5,7OT (pills purchased by
undercover narcotics officer and kept in her briefcase in an envelope for ten
days prior to delivery to OSBI was insufficient chain of custody; reversed and
remanded for a new trial); Wilson u. State, L977 OK CR 25L, TT 5-8, 568 P.2d
342 (marijuana purchased by undercover drug buyer and kept it in an
unsealed bag hidden in his car or in his home before it was delivered to the DA
investigator constituted a break in the chain of custody w€uranting reversal
and dismissal).
Here, the chain of custody was not sufficiently proven to
sustain the foundation for the admissibility of this evidence. Faulkenberry, id.
at X 6.
Accordingly, Collier's convictions for Counts 1 and 2 are hereby
REVERSED AND REMANDED WITH II{STRUCTIONS TO DISMISS.
Our decision on Proposition Four renders the remaining propositions of
error moot.
DElCISION
The Judgrnent and Sentencesimposed in Craig County District Court,
Case No. CF 2OO2-27, are REVERSED Al{D REMANDED UIITH
INSTRUCTIONS TO DISMISS.
3
AN APPEALFROM THE DISTRICTCOURTOF CRAIG COUNTY
JAMES GOODPASTER,DISTRICTJUDGE
THE HONORAE}LE
APPEARANCESAT TRIAL
TIMOTHYWANTLAND
ATTORNEYATLAW
OK
CLAREMORE,
ATTORNEYFORDEFENDANT
APPEERENCESON APPEAL
S. GAIL GUNNING
APPELLATEDEFENSECOUNSEL
P. O. BOX926
NORMAN,OK,73O7O
ATTORNEYFOR APPELI,ANT
TERRELLCROSSON
ASST.DISTRICTATTORNEY
CRAIGCOUNTYCOURTHOUSE
VINITA,OK
ATTORNEYFOR THE STATE
W.A. DREVfEDMONDSON
ATTORNEYGENERALOF OKI"AHOMA
JENNIFERMILLER
ASSISTANTATTORNEYGENERAL
112 STATECAPITOLBUILDING
OKI,AHOMACITY,OK 73105
ATTORNEYSFOR STATE
OPINION BY: C. JOHNSON' J.
CONCURS
CHAPEL,P.J. :
DISSENTS
LUMPKIN,V.P.J. :
CONCURS
A. JOHNSON,J.:
CONCURS
LEWIS,J.:
4
LUMPKIN' VICBPRESIDING JUDGE: DISSENT
The facts and law relating to this case do not support the Court's
decision to reverse and remand Appellant's convictions with instructions to
dismiss. Therefore, I dissent.
The Court's Surnmary Opinion finds the State did not provide "adequate
proof of the chain of custody of the marijuana recovered from Collier's vehicle."
But in doing So, the Court plainly admits "there is only speculation that
tampering may have occurred". I would not reverse these convictions, which
were reached by a jury of twelve, based upon mere speculation that the drugs
were tampered with while under police control.
I find this is purely a weight and credibility issue. The marijuana was at
all times under police control. That someone might have had access to it goes
to credibility, not adrnissibility. (Appellant did not object to its admissibility.)
The Court, again, bends over backwards to reverse valid jury determinations.
Even assumirg, arguendo, that the chain of custody problems required
this court to throw out the subsequent test results, which I dispute, the relief
of reversal and dismissal is not required.
The officer's observations at the
scene, the dtug dog hit on the car, and the seizure of what was clearly
marijuana
are sufficient to sustain convictions for simple possession and
failure to affx drug stamps. Appellant raised no error on appeal relating to an
unconstitutional search and seizure. I suspect, however, that the relief granted
today has more to do with that issue than the issue of chain of custody.