LEONARD MCMILLAN, A/K/A LEONARDO MCMILLAR v. State

• Court: Court of Appeals of Georgia
• Decided: May 5, 2014
• Docket: A14A0124
• Status: Published

Opinion

THIRD DIVISION BARNES, P. J., BOGGS and BRANCH, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/

May 5, 2014

In the Court of Appeals of Georgia A14A0124. McMILLAN v. THE STATE.

B RANCH, Judge.

Leonard McMillan was convicted of trafficking in cocaine based in part on his

possession of several baggies of cocaine, as well as a large amount of currency seized

at the time of his arrest. At McM illan’s trial, the evidence custodian testified and

admitted that she had been charged with and pled guilty to three charges of theft by

taking U. S. currency from the evidence room, including from the evidence in

McM illan’s case. Following his conviction, McMillan appeals, and in his sole

enumeration of error he contends the trial court erred by admitting the cocaine

evidence in light of the custodian’s admission to tampering with evidence. We

conclude that the trial court did not abuse its discretion by allowing the cocaine into

evidence, and we therefore affirm. Construed in favor of the verdict, the evidence shows that Officer Crews

stopped McMillan for speeding and that McMillan was found to have three plastic

bags of white powdery substance in his jacket pocket; Crews did not field test the

substance. Crews also recovered a “sizable amount” of currency from McMillan’s

pockets, and Crews and other officers recovered other currency that had been thrown

out during the chase that led to the traffic stop. At the scene, Crews turned over the

bags of suspected contraband to Officer Middleton from the Garden City Police

Department. At the same time, Middleton also took possession of an additional baggie

of suspected contraband as well as over $6,000 in currency. Middleton weighed but

did not field test the suspected contraband. He then took the evidence to the police

department, counted the currency, placed the currency into an evidence bag and sealed

it; he also placed the small bags containing the suspected contraband into separate

evidence bags, sealed them, and initialed over the seal. Middleton turned the bags over

to the evidence custodian, Dee Norris. Norris testified that she placed each bag into

a second bag that she sealed and initialed; she eventually delivered the bags to the

crime lab. The evidence bags were in Norris’s custodial care for at least two and a half

weeks.

2 Al Jelinski, the Criminal Investigation Division Commander for the Garden

City Police Department, testified that he witnessed the GBI scientist cut open the bags

identified at trial as Exhibits 21 and 22 in order to test the substances contained

therein. Jelinski also brought the two exhibits to court. The GBI scientist testified that

the bags were intact and sealed at the time that he cut into them to perform the testing

and that there were no visual signs of tampering of either the outer or inner evidence

bags. At trial, Middleton identified Exhibits 21 and 22 as containing the evidence bags

in which he had placed the suspected contraband and then sealed and marked with his

initials, which seal had not been broken. The bags were also marked with the case

number and McMillan’s name.

At McM illan’s trial, Norris testified that she pled guilty to taking U. S. currency

while working as the evidence custodian for Garden City. She admitted taking the

currency out of the currency evidence bags, but she denied ever taking drugs from

case files or tampering with any drugs and she specifically denied tampering with

either State’s Exhibit 21 or 22.1 She also testified that the process for handling

currency was different than the process for handling drugs and other evidence because

currency was deposited in a bank account, which Norris was in charge of handling.

1 Norris was charged only with theft of the currency.

3 She was not caught for years due to a lack of oversight. Because currency confiscated

under these circumstances could be returned to the person from whom it was taken if

they were acquitted, Norris was asked if she tampered with the drug evidence in order

to ensure that the currency would never have to be returned. Norris denied doing so.

Norris’s supervisor at the time also testified that there was no evidence that Norris

tampered with any drugs in any of the case files.

After presentation of the above evidence, McMillan objected to introduction of

Exhibits 21 and 22 based on the evidence that Norris had tampered with case files.

The trial court overruled the objection.

To show a chain of custody adequate to preserve the identity of fungible evidence, the State must prove with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution. The State is not required to foreclose every possibility of tampering; it need only show reasonable assurance of the identity of the evidence. We review the trial court’s decision on the adequacy of the chain-of-custody evidence under an abuse-of-discretion standard.

(Citations, punctuation and footnotes omitted.) Maldonado v. State, 268 Ga. App.

691-692 (1) (603 SE2d 58) (2004).

Here, the State presented evidence to show that the evidentiary bags containing

suspected contraband that were sealed and initialed by Middleton were not tampered

4 with or cut open until they were opened for the purpose of testing in the GBI lab. The

State also presented evidence of the entire chain of custody of those bags from the

scene of the traffic stop to trial. Although Norris stole currency, the procedure for

handling currency was different from the procedure for other evidence, the currency

was contained in separate evidence bags, Norris denied tampering with any drugs, and

the investigation into her conduct revealed no evidence of such tampering with drugs.

This evidence and the other chain-of-custody evidence cited above shows that the

State established with reasonable certainty that Exhibits 21 and 22 contained the

substances confiscated from McMillan at the traffic stop and that there was no

tampering or substitution. Accordingly, the trial court did not abuse its discretion by

admitting Exhibits 21 and 22 over McMillan’s objection. See Mickens v. State, 318

Ga. App. 601, 602 (734 SE2d 438) (2012) (“When there is only a bare speculation of

tampering, it is proper to admit the evidence and let what doubt remains go to the

weight.”) (footnote omitted).

Judgment affirmed. Barnes, P. J., and Boggs, J., concur.