114 Wash. App. 424 | Wash. Ct. App. | 2002
Soon after James Roche and Roy Sweeney were convicted and sentenced for methamphetamine possession, it became public knowledge that Michael Hoover, a chemist at the Washington State Patrol Crime Laboratory, had been self-medicating with heroin sent to the crime lab for testing purposes. Hoover was the chemist who had tested the substances recovered in both Roche’s and Sweeney’s cases and reported them to be methamphetamine. Roche moved for, and was denied, a new trial based on this newly discovered evidence. Sweeney filed a personal restraint petition raising the same issue, after his request for court-appointed counsel to help him move for a new trial was denied by the trial court. Because we agree that this newly discovered evidence of Hoover’s malfeasance broke the chain of custody and tainted the integrity of Roche’s and Sweeney’s trials, we reverse both convictions and remand for new trials, if the State should elect to retry them.
FACTS
Michael Hoover
Michael Hoover began working as a chemist for the Washington State Patrol crime laboratory in 1989. At some
Northrop discovered that Hoover had specifically requested that black tar heroin cases be assigned to him. When Northrop asked Hoover why he needed black tar heroin cases, Hoover said that a Washington State Patrol canine officer had requested an extraction of pure heroin for use in training drug dogs. Northrop asked the administrative staff not to comply with Hoover’s request. But Hoover continued to remove heroin cases from the drawer of unassigned cases and self-assign them.
Boaz observed that Hoover’s lab data seemed sloppy. Boaz also suspected that Hoover was reducing his workload by testing a single purified sample and applying the results across a number of cases, a practice known as “dry labbing.” Boaz suspected that Hoover was dry labbing because, in Boaz’s professional opinion, Hoover’s spectra for separate criminal cases were too similar to have come from different samples. Boaz documented at least 14 possible dry labbing incidents from August to October 2000, including several for methamphetamine from Snohomish County cases. Oiie of these 14 cases was Sweeney’s.
Northrop and Boaz also noticed that Hoover behaved furtively around his workstation, attempted to conceal his activities from them, and kept a large amount of white powder in an evaporating dish on his desk. Boaz would sometimes hear scraping sounds coming from Hoover’s desk area, followed by snorting sounds. Boaz also noticed that Hoover continually turned down the lights in the lab,
In September 2000, Neilson confronted Hoover about the substances at his workstation. Hoover again said that a canine officer had requested purified heroin for dog training purposes. Neilson told Hoover that no such project had been approved and ordered him to discontinue it. However, Boaz and Northrop noticed that Hoover continued to collect heroin at his workstation.
In November 2000, Neilson asked the Washington State Patrol to investigate Hoover. Detectives placed a hidden video camera above Hoover’s workstation and learned from watching the videotapes that Hoover was scraping the residue from evaporation dishes into small vials and hiding them on his person or around his workstation.
Detectives obtained a search warrant and interviewed Hoover on December 22, 2000, more than two years after Boaz began noticing that Hoover was taking heroin cases that had been assigned to Boaz out of his file drawer. At first, Hoover continued to claim that he was purifying heroin for a canine officer, although he said he could not recall the officer’s name. He also denied that he was using drugs. However, when the detectives revealed that they had been videotaping Hoover at his workstation, he finally acknowledged that he had been taking heroin samples from evidence sent to the lab for testing, purifying it, and using it to self-medicate his back pain. Hoover also admitted that he frequently used heroin at the lab shortly before leaving work. Hoover was given a urine test, which tested positive for heroin.
Detectives found seven test tubes at the back of Hoover’s workstation that appeared to contain controlled substances. The vials had various labels, including “meth” and
Hoover was charged with evidence tampering and official misconduct. On July 3, 2001, he pleaded guilty to both charges.
James Roche
In December 1999, detectives from the Narcotics Task Force served a search warrant at the Lake Stevens home of James Roche. The police announced their arrival with a loudspeaker. During the search, police found Roche’s wife, two daughters, and another man on the premises, but not Roche. After entering the house, there was a delay of several minutes before police went upstairs to search. In an upstairs bedroom that was apparently being used as an office, a detective noticed that the window was open, causing him to suspect that Roche may have escaped through the window and into the woods across the street. On the sidewalk below the window, police found a pouch containing a substance that looked like methamphetamine, along with a razor blade and a paper rolled into a device commonly used to ingest drugs.
In the same bedroom, police found a red toolbox containing a gray bag. Inside the gray bag, police found several baggies of a powdery substance that appeared to be methamphetamine, a traffic citation issued to James Roche, a scale, a ledger of drug sales, and $3,000 in cash. The toolbox also contained additional baggies of a substance that appeared to be methamphetamine. In a desk drawer, police discovered two more baggies of powdery substance, plus a rolled up dollar bill. Police took photographs of the scene, showing the open toolbox, baggies, and associated items. These items and photos were made trial exhibits and admitted into evidence.
At trial, Deputy Sheriff Terrence Warren testified to his discovery of trial exhibit 1, consisting of baggies which
Michael Hoover testified at trial that he was the state crime lab chemist who tested the substances found at the Roche residence. Hoover testified that his routine for testing a substance is first to put a small amount of the suspected drug on a clean plate and add chemicals to it, and to look for certain color changes indicative of controlled substances. Next, he confirms those preliminary results by placing a small amount of the substance on a clean slide, adding chemical reagents, and examining the sample under a microscope, looking for uniquely shaped crystals that grow only if methamphetamine is present. To further confirm the results, he runs an infrared spectrophotometer test and prints out the resulting spectrum, which shows a “unique fingerprint pattern” for each drug.
Hoover said that after testing, he reseals the evidence with evidence tape and initials it. Hoover identified trial exhibit 1 by the laboratory’s blue evidence tape with his initials on it. Exhibit 1 consisted of 18 plastic baggies containing a chunky tan powder with a total net weight of 61.3 grams. Hoover testified that he used the abovementioned standard testing procedures to test the contents of one of the baggies in exhibit 1, and found it to be methamphetamine. Hoover also identified exhibits 5 and 6 by the blue tape and his initials, and testified that he tested the contents of one of the baggies in each exhibit and found them to contain methamphetamine.
The only defense witness was Samuel Swain, who testified that Roche was at Swain’s house in Wenatchee at the
A jury convicted Roche of possession of methamphetamine with intent to deliver; he was given a standard range sentence on November 16, 2000.
On March 28, 2001, the court denied Roche’s motion for a new trial. The court reasoned that the real issue at trial was whether Roche constructively possessed the methamphetamine found at his residence, not whether the substance was in fact methamphetamine; therefore, it was unlikely that evidence of Hoover’s malfeasance would have changed the result of the trial. Furthermore, there was no specific evidence that Hoover was under the influence of heroin at the time he tested the substance recovered from Roche’s house. Finally, because this was a methampheta
Roy Sweeney
On October 20, 1999, Deputy Stemme of the Snohomish County Sheriff’s Office observed Sweeney driving a motor vehicle on State Road 530. The deputy had contacted Sweeney earlier that day regarding a trespassing complaint and learned that Sweeney’s license to drive was suspended. The deputy, who was in uniform in a fully marked police car, turned on his blue lights and tried to stop Sweeney. However, Sweeney did not stop. As the deputy pursued him, Sweeney reached speeds of up to 100 mph. At an intersection, Sweeney locked his brakes and slid sideways across two lanes of traffic. He then proceeded about one quarter to one half mile, with smoke billowing from his car, until his car finally stopped.
Deputy Stemme placed Sweeney under arrest and called a tow truck for Sweeney’s car. Sweeney asked Deputy Stemme to get Sweeney’s belongings out of the trunk of the car. The deputy complied, removing two bags and a jacket from the car. The deputy searched the jacket pockets and found drug paraphernalia and a chunky powdery substance. The deputy also searched the bags and found a scale with residue in one of them. As Deputy Stemme, carrying the bags and jacket, approached the patrol car where Sweeney was seated, Sweeney said, “Those drugs aren’t mine and I didn’t know those cell phones were stolen!” The powdery substance and the residue on the scale were sent to the crime lab, and tested by Michael Hoover, who reported them to be methamphetamine. Sweeney stipulated at his trial that the substances were in fact methamphetamine.
On October 17, 2000, a jury convicted Sweeney of possession of methamphetamine and attempting to elude a pursuing police vehicle. Sweeney was sentenced on November 16, 2000. Less than two months later, it became public that Hoover had been using heroin at the crime lab. On May 8,
Sweeney then filed a pro se personal restraint petition, seeking to have his conviction reversed. We granted Sweeney’s request for appointed counsel under RCW 10.73.150(4) to assist him in pursuing his petition.
DISCUSSION
We have linked Roche and Sweeney’s cases so that we need issue only one opinion concerning the effect of the newly discovered evidence of Hoover’s malfeasance. However, because each case presents a different procedural posture, we must carefully distinguish and apply the appropriate standards of review.
James Roche
Roche appeals from the trial court’s denial of his motion for a new trial based on newly discovered evidence. Atrial court’s decision regarding a motion for new trial will not be disturbed on appeal, absent an abuse of discretion. State v. Williams, 96 Wn.2d 215, 221, 634 P.2d 868 (1981). A court abuses its discretion where the decision was manifestly unreasonable or based on untenable grounds or reasons. Moreman v. Butcher, 126 Wn.2d 36, 40, 891 P.2d 725 (1995).
To obtain a new trial based on newly discovered evidence, a defendant must demonstrate that the evidence: (1) will probably change the result of the trial, (2) was discovered after the trial, (3) could not have been discovered before trial by the exercise of due diligence, (4) is material, and (5) is not merely cumulative or impeaching. State v. Swan, 114 Wn.2d 613, 641-42, 790 P.2d 610 (1990). The absence of any one of these five factors is grounds to deny a new trial. Williams, 96 Wn.2d at 223.
The State concedes factors (2), (3), and (4), i.e., that the evidence was discovered after the trial, could not have been discovered before trial by the exercise of due diligence, and
Roche contends that the evidence would probably change the result of the trial because Hoover’s malfeasance broke the chain of custody and so devastated Hoover’s credibility as to undermine the State’s ability to prove by his testimony that the substance recovered from his residence was methamphetamine.
“Before a physical object connected with the commission of a crime may properly be admitted into evidence, it must be satisfactorily identified and shown to be in substantially the same condition as when the crime was committed.” State v. Campbell, 103 Wn.2d 1, 21, 691 P.2d 929 (1984). Evidence that is unique and readily identifiable may be identified by a witness who can state that the item is what it purports to be. 5 Karl B. Tegland, Washington Practice § 402.31 (1999). However, where evidence is not readily identifiable and is susceptible to alteration by tampering or contamination, it is customarily identified by the testimony of each custodian in the chain of custody from the time the evidence was acquired. Id. This more stringent test requires the proponent to establish a chain of custody “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). Factors to be considered include the nature of the item, the circumstances surrounding the preservation and custody, and the likelihood of tampering or alteration. Campbell, 103 Wn.2d at 21. The proponent need not identify the evidence with absolute certainty and eliminate every possibility of alteration or substitution. Campbell, 103 Wn.2d at 21. “[M]inor discrepancies or uncertainty on the part of the witness will affect only the weight of the evidence, not its admissibility.” Id.
It is true, as the State argues, that photos taken at the crime scene in Roche’s case demonstrate that the exhibits were in substantially the same condition as before Hoover handled them. And it is also true that the substances found in Roche’s home were field-tested by one of the investigat
Moreover, the evidence of Hoover’s malfeasance is more than “merely” impeaching; it is critical, with respect to Hoover’s own credibility, the validity of his testing, and the chain of custody. See State v. Savaria, 82 Wn. App. 832, 838, 919 P.2d 1263 (1996) (“[IJmpeaching evidence can warrant a new trial if it devastates a witness’s uncorroborated testimony establishing an element of the offense. In such cases the new evidence is not merely impeaching, but critical.”). The record establishes that after Hoover’s malfeasance became known, the State dismissed dozens of pending “Hoover cases” involving drugs other than heroin, including methamphetamine cases, because of the devastating damage to Hoover’s credibility and to the chain of custody.
In denying Roche’s motion for a new trial, the court noted that the main issue at trial was whether Roche constructively possessed the substances found at his residence, not whether the substances were in fact methamphetamine. But Roche had no reason to challenge Hoover’s testimony at his trial because evidence of Hoover’s malfeasance had not yet come to light. As far as the defense bar knew at that time, Hoover was a respected and reputable chemist whose integrity and scientific methodology were above reproach. There can be no doubt, however, that if evidence of Hoover’s theft of heroin, use of heroin at work, sloppy work habits, and the factually supportable suspicion of his fellow chemists that he was dry labbing had come to light during Roche’s trial, the admissibility of the trial exhibits would have been vigorously challenged — and probably the exhibits would not have been admitted into evidence at all.
The trial court also reasoned, in denying Roche’s motion for a new trial, that there was no problem with the chain of custody because Hoover stole heroin from the crime lab, not methamphetamine. But in the same memorandum, Downes told the trial deputies, “Do NOT have the controlled substance retested. Our problem is chain of custody. Having the substance retested does not solve the problem and causes more (and wasted) work for the crime lab.” Downes’ memorandum applied to all pending drug cases where Hoover had done the testing, not just to heroin cases.
In the same memorandum, Downes outlined the office policy for handling possession with intent and delivery cases that had not yet gone to trial, or that had not yet gone to sentencing: “Any possession with intent or delivery case in which we do not have both a good confession to the identity of the substance (we do not need to have a confession re: intent or delivery) and a positive field test shall be dismissed.” And for cases in which the defendant had already been found guilty by plea or trial, but had not yet been sentenced, Downes wrote:
Cases in which we do not have both a good confession to the identity of the substance and a positive field test shall be dismissed. In cases [for] which we have the field test and the confession, we will argue to maintain the conviction on grounds that there is sufficient independent evidence to support the conviction.
App. A to State’s Resp.
The most important consideration for us now is the preservation of the integrity of the criminal justice system. We must handle these cases in such a fashion that the public, the defense bar, and the courts clearly know that we will not base criminal convictions on tainted evidence but will insist upon proper standards of conduct and procedure.
App. A to State’s Resp. We wholeheartedly agree. We also conclude that in a case such as this where the defendant would not have been tried or sentenced at all if the newly discovered evidence had come to light before he was tried, convicted, or sentenced, the question of whether the result at trial would have been different if the evidence had come to light earlier becomes effectively moot.
We thus conclude that the trial court should have granted Roche’s motion for a new trial, leaving it up to the State to decide whether to retry Roche or to dismiss the charges. Accordingly, we reverse Roche’s conviction and remand so that the State can decide whether to retry Roche or to dismiss the charges against him.
Roy Sweeney
We now turn to Sweeney’s personal restraint petition. Generally, a personal restraint petition alleging a constitutional error must show “actual and substantial prejudice,” while a petition alleging nonconstitutional error must show “ ‘a fundamental defect which inherently results in a complete miscarriage of justice.’ ” In re Pers. Restraint of Cook, 114 Wn.2d 802, 810, 811, 792 P.2d 506 (1990) (quoting Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 7 L. Ed. 2d 417 (1962)). However, these threshold requirements do not apply “when the challenge is to a
The petitioner must state with particularity facts that, if proven, would entitle him to a hearing:
If the petitioner’s allegations are based on matters outside the existing record, the petitioner must demonstrate that he has competent, admissible evidence to establish the facts that entitle him to relief. If the petitioner’s evidence is based on knowledge in the possession of others, he may not simply state what he thinks those others would say, but must present their affidavits or other corroborative evidence. The affidavits, in turn, must contain matters to which the affiants may competently testify. In short, the petitioner must present evidence showing that his factual allegations are based on more than speculation, conjecture, or inadmissible hearsay.
In re Pers. Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992). On motion of the opposing party, the appellate court will strike incompetent and inadmissible evidence offered by the petitioner in support of the personal restraint petition. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 473, 965 P.2d 593 (1998).
The trial court denied Sweeney’s request for appointed counsel to assist him in moving for a new trial, making it very difficult if not impossible for him to make the
Sweeney’s argument centers on allegations that Hoover’s test results were completely unreliable. Sweeney points to evidence that Hoover used heroin at work, that he may have been “dry labbing,” that his work seemed sloppy, that he took samples of evidence home with him, and that he engaged in an ongoing pattern of deceit and denial about his activities. Counsel for Sweeney at the trial court level has stated that, had she known of the allegations against Hoover, she would have cross-examined Hoover, and she would not have stipulated that the substance seized from Sweeney’s car was methamphetamine.
The State argues that Sweeney has failed to present sufficient competent, admissible evidence to sustain his petition. According to the State, Sweeney’s petition relies on mere speculation regarding Hoover’s possible; misconduct in methamphetamine cases, and Sweeney did not submit any evidence that Hoover committed misconduct in any methamphetamine cases, including Sweeney’s.
As a preliminary matter, we address the State’s motion to strike certain statements in the record. The State, citing ER 602,
This evidence is relevant because it raises a reasonable inference that Hoover could have dry labbed the substance found in Sweeney’s case that is not rebutted by the result of the retesting. We deny the motion to strike this evidence.
Next, although the State provides no argument to support the motion, the State moves to strike Boaz’s statements regarding Hoover’s habit of keeping the lights low and having a flushed face in the office. Boaz personally observed Hoover’s habits and physical appearance at the lab, and explained that these observations, along with Hoover’s habit of hoarding heroin cases, made him suspect that Hoover was using heroin at the lab. Those statements are admissible because they are based on personal observation. They are relevant because they raise a reasonable inference that Hoover was using drugs on the job. We deny this motion to strike.
Insofar as Sweeney’s personal restraint petition is concerned, though not as a reflection of the validity of its own prosecution of Hoover, the State argues that the evidence regarding Hoover’s activities is purely speculative. But the State completely ignores Hoover’s confession, in which he admitted diverting heroin from evidence sent to the lab for testing, and to self-medicating with it on the job, on almost a daily basis. Furthermore, Hoover pleaded guilty to evidence tampering and official misconduct. These statements remove the allegations against Hoover from the realm of conjecture. Boaz’s allegations that Hoover’s work was chronically sloppy and that he may have been dry labbing are also significant because they lead to an inference that Hoover may not have properly tested the substance in Sweeney’s case, regardless of the result of the retesting.
The next question is whether Sweeney has established enough material facts to vacate his conviction pursuant to RAP 16.4(c)(3). Sweeney’s petition is required to meet the same standard as a motion for a new trial pursuant to CrR 7.5(a). State v. Harper, 64 Wn. App. 283, 292, 823 P.2d 1137 (1992). The standard is identical to that previously discussed for Roche’s case: (1) the evidence must be such that the results will probably change if a new trial were granted; (2) the evidence must have been discovered since the trial; (3) the evidence could not have been discovered before the trial by exercising due diligence; (4) the evidence must be material; and (5) the evidence cannot merely be cumulative or impeaching. Id. at 291-92.
The State also argues that Sweeney is not entitled to a new trial because the new evidence is merely impeaching. The analysis discussed above in the Roche case applies equally to Sweeney. The evidence of Hoover’s malfeasance is so corrupting that Snohomish County instructed its prosecutors not to call Hoover as a witness to testify in court and not to try to reconstruct the chain of custody by having the substances retested. This evidence is critical and not “merely” impeaching.
Although the State in Roche’s case conceded that the evidence was material, the State in Sweeney’s case argues
Sweeney has shown that admissible material facts exist which have not been previously presented and heard, which, in the interest of justice, require vacation of the conviction. RAP 16.4(c)(3). Therefore, we grant Sweeney’s personal restraint petition, and vacate his conviction. We do so for the same reasons that we have reversed Roche’s conviction, as well as the reasons specific to Sweeney’s petition, and remand for a new trial if the State should elect to retry him.
This ruling makes it unnecessary for us to address Sweeney’s contention that his restraint is unlawful on grounds that the State committed a Brady
We adopt as our own the reasoning of the Snohomish County Prosecutor’s Office as stated in the Downes memorandum, and restate it for purposes of this opinion as follows: The most important consideration for us now is the preservation of the integrity of the criminal justice system. We must handle these two cases now before us in such a fashion that the public, the defense bar, the prosecuting attorneys, and the courts of Washington will clearly understand that we will not tolerate criminal convictions based on tainted evidence, but will insist upon proper standards of conduct and procedure.
We vacate Roche’s conviction for possession of methamphetamine with intent to deliver and remand for a new trial if the State should elect to retry him. We grant Sweeney’s personal restraint petition insofar as it relates to his possession of methamphetamine conviction, vacate that conviction, and remand for a new trial if the State should elect to retry him. We deny Sweeney’s personal restraint petition insofar as it relates to his conviction for eluding.
Coleman and Appelwick, JJ., concur.
On September 17,2001, Boaz and Northrop retested the samples in 6 of the 14 cases, and found the substances they tested to be what Hoover reported them to be. None of the six samples retested on that day were from Roche’s or Sweeney’s cases. The lab reports for the retesting do not contain a comparison of the spectra from the retesting with those earlier reported by Hoover.
In a separate appeal, we have considered and rejected the arguments Roche raised to challenge his conviction, prior to the Hoover allegations. State v. Roche, noted at 109 Wn. App. 1047, 2001 Wash. App. LEXIS 3350, 2001 WL 1630307 (unpublished).
The State argues that the possibility of dry labbing was ruled out because Washington State Patrol chemists retested the suspected controlled substances in 6 of the 14 cases in which dry labbing was suspected, and these reports confirmed that Hoover’s initial results were correct. The retesting reports do not prove that Hoover was not dry labbing, however. They merely prove that the substances retested were in fact the same substances that Hoover reported them to be. The lab reports for the retesting do not compare Hoover’s spectra with those obtained by Boaz and Northrop, who performed the retesting.
Sweeney’s trial counsel also avers in conclusory fashion that she would have moved to exclude evidence regarding the eluding charge. But there is no nexus between the new evidence regarding Hoover’s malfeasance and the evidence supporting the eluding charge. Moreover, Sweeney’s arguments in support of his personal restraint petition address only the possession charge.
ER 602 states that “A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness’ own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses.’’
We do agree with the State that Hoover’s malfeasance does not affect Sweeney’s conviction on the eluding charge. Evidence of the eluding charge occurred prior to discovery of the methamphetamine, and neither charge depended on the other for its proof.
Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).