722.1Real Evidence: Fungible

Generally

As noted in the prior section, when an item of real evidence can be identified by its unique features it is not necessary to establish a chain of custody.  State v. Taylor, 344 N.C. 31, 48, 473 S.E.2d 596, 606 (1996); State v. Morris, 102 N.C. App. 541, 546, 402 S.E.2d 845, 848 (1991).  Indeed, authentication by chain of custody is “a cumbersome process” and is necessary only when the item does not have readily identifiable characteristics.  Robert P. Mosteller, North Carolina Evidentiary Foundations, 5-108 (4th ed. 2022).  In general, when the significance of the evidence depends on analysis or test results, absence of proof of a chain of custody may amount to a failure to show its relevance.  Kenneth S. Broun, Brandis & Broun on North Carolina Evidence, 993 (8th ed. 2018).

A detailed chain of custody need be established only when the evidence is not readily identifiable or is susceptible to alteration and there is reason to believe it may have been altered. State v. Snead, 368 N.C. 811, 815, 783 S.E.2d 733, 737 (2016).  “The possibility that physical evidence has been contaminated does not, by itself, bar that evidence from being authenticated and admitted.”  State v. Jackson, 277 N.C. App. 106, 110, 857 S.E.2d 140, 143 (2021).  Any weak links in the chain of custody relate only to the weight of the evidence and not its admissibility.  E.g., Snead, 368 N.C. at 815, 783 S.E.2d at 737; State v. Anderson, 194 N.C. App. 292, 301, 669 S.E.2d 793, 799 (2008).

Notice-and-demand Statutes

Several statutes provide that a chain of custody for evidence subject to forensic testing may be established by producing a statement signed by each successive person in the chain that the person delivered the item described to the next person on or about the date stated.  These provisions may be used when the State gives sufficient notice and the defendant fails to object to this procedure.  See G.S. 8-58.20(g) (generally); G.S. 90-95(g1) (drugs); G.S. 20-139.1(c3) (chemical analysis of blood or urine). 

Failure to comply with the terms of such notice-and-demand statutes does not, however, preclude admission of the evidence when the State can otherwise establish a proper chain of custody. See State v. Lorenzo, 147 N.C. App. 728, 733, 556 S.E.2d 625, 628 (2001) (alleged inaccuracy in statement permitted by G.S. 90-95(g1) was irrelevant where State established chain of custody by testimony of persons in chain of custody); State v. Greenlee, 146 N.C. App. 729, 732, 553 S.E.2d 916, 918 (2001) (G.S. 90-95(g1) does not dictate the only method of proving chain of custody); cf. State v. Renfro, 174 N.C. App. 402, 409, 621 S.E.2d 221, 225 (2005) (no error in admitting evidence regarding testing of cocaine when defendant stipulated to chain of custody).

Drugs

Trial courts need only concern themselves with material changes to real evidence.  State v. Dawkins, 269 N.C. App. 45, 49, 837 S.E.2d 138, 142 (2019).  “[C]ases that have dealt with the admissibility of drugs that have been smashed [i.e., rock to powder] have held that such impacts do not amount to material changes raising admissibility concerns.”  Id.; see also State v. Teasley, 82 N.C. App. 150, 163, 346 S.E.2d 227, 234 (1986) (officer’s combining of substances found in defendant’s living room did constitute material change in condition precluding admission).  Further, when a sample from a quantity of suspected controlled substance is analyzed and found to contain contraband, the entire quantity may be introduced as the contraband.  State v. Wilhelm, 59 N.C. App. 298, 303, 296 S.E.2d 664, 667 (1982); cf. State v. Ward, 364 N.C. 133, 148, 694 S.E.2d 738, 747 (2010) (when chemical analysis is required, scope may be dictated by “whatever sample is sufficient to make a reliable determination of the chemical composition”).

For representative cases, see Jackson, 277 N.C. App. at 110, 857 S.E.2d at 144 (no error in admitting white rocks identified as cocaine despite possibility of contamination when detective handled them with his bare hands); Dawkins, 269 N.C. App. at 50, 837 S.E.2d at 142 (chain of custody for drugs established by testimony from police officer and lab technician that proper procedures were followed); State v. Berryman, 170 N.C. App. 336, 340, 612 S.E.2d 672, 675 (2005) (same), aff’d, 360 N.C. 209, 624 S.E.2d 350 (2006); State v. Shelman, 159 N.C. App. 300, 304, 584 S.E.2d 88, 92 (2003) (no error in admitting package of methamphetamine delivered to defendant’s address absent evidence of package’s source); Greenlee, 146 N.C. App. at 732, 553 S.E.2d at 918 (chain of custody for cocaine sufficiently established without calling each person listed on chain of custody report); State v. Smith, 134 N.C. App. 123, 126, 516 S.E.2d 902, 905 (1999) (no error in admitting crack cocaine bought from defendant by undercover officer despite discrepancies in testimony regarding packaging); State v. Carr, 122 N.C. App. 369, 375, 470 S.E.2d 70, 74 (1996) (no error in admitting cocaine recovered from car based on testimony of arresting officer and forensic chemist); State v. Rogers, 121 N.C. App. 273, 279, 465 S.E.2d 77, 80 (1996) (chain of custody for heroin established by testimony from informant who received the drugs from the defendant, officers who received the drugs from the informant, and forensic chemist); Morris, 102 N.C. App. at 546, 402 S.E.2d at 848 (no error in admitting two bags of marijuana identified by testifying officers as the same bags sent for chemical analysis); State v. Brown, 101 N.C. App. 71, 76, 398 S.E.2d 905, 908 (1990) (chain of custody for cocaine established by testimony of arresting officer and forensic chemist); State v. Brooks, 83 N.C. App. 179, 189, 349 S.E.2d 630, 636 (1986) (chain of custody for cocaine established by testimony of undercover officer and in-court identification of exhibits as the same bags that he had turned over to a detective); State v. Sessoms, 79 N.C. App. 444, 446, 339 S.E.2d 458, 460 (1986) (chain of custody for cocaine established by testimony of undercover officer who received it from defendant and forensic chemist who analyzed it).

Guns / projectiles

As a general rule, weapons may be admitted in evidence when there is evidence tending to show they were used in the commission of a crime.  State v. Hill, 139 N.C. App. 471, 481, 534 S.E.2d 606, 613 (2000).

For representative cases, see State v. White, 349 N.C. 535, 553, 508 S.E.2d 253, 265 (1998) (no error in admitting shell casings found in Arizona not far from hotel where defendant was staying and tests showed casings were fired from same gun which fired casings found beside two murder victims bodies in NC); State v. Taylor, 332 N.C. 372, 389, 420 S.E.2d 414, 424 (1992) (testimony of several witnesses established chain of custody of the projectile); State v. Glasco, 160 N.C. App. 150, 155, 585 S.E.2d 257, 262 (2003) (no error in admitting AK-47 rifle and magazine despite argument that the evidence could have been altered); State v. Lytch, 142 N.C. App. 576, 582, 544 S.E.2d 570, 573 (2001) (no error in admitting three bullets found in the trailer park where the defendant had been staying despite lack of testimony from manager who handled them), aff’d per curiam, 355 N.C. 270, 559 S.E.2d 547 (2002); Hill, 139 N.C. App. at 481, 534 S.E.2d at 613 (no evidence in admitting pistol identified by victim as similar in appearance to the one the defendant pointed at her); State v. Owen, 130 N.C. App. 505, 517, 503 S.E.2d 426, 433 (1998) (no error in admitting bullets and cartridges from murder weapon despite forensic examiner’s failure to identify who had prior possession of the items); cf. State v. Blake, 317 N.C. 632, 638, 346 S.E.2d 399, 402-03 (1986) (rejecting argument re chain of custody of lead fragments removed from victim’s body when the defendant acknowledged the victim was shot with the defendant’s gun).

Bodily fluids / DNA

The person who draws the blood sample need not always testify in order to establish a proper foundation for the admission of the sample.  State v. Frye, 341 N.C. 470, 496, 461 S.E.2d 664, 677 (1995). “Further, lack of specificity as to the collection procedures of a blood sample will not lead to a rejection of the evidence unless there is a crucial reason for requiring such evidence of specificity.”  State v. Hairston, 123 N.C. App. 753, 758, 475 S.E.2d 242, 245 (1996).  DNA profile testing is generally admissible, though subject to challenge based on, inter alia, chain of custody.  State v. Hill, 116 N.C. App. 573, 582, 449 S.E.2d 573, 578 (1994).

For representative cases, see Frye, 341 N.C. at 496, 461 S.E.2d at 677 (no error in admitting victim’s blood sample when it could be inferred that blood was drawn during autopsy); State v. Sloan, 316 N.C. 714, 723, 343 S.E.2d 527, 533 (1986) (no error in admitting rectal swabs and slides despite medical examiner’s testimony that he left the operating room before the rape kit was sealed); State v. Bucklew, 280 N.C. App. 494, 867 S.E.2d 362, 375 (2021) (chain of custody for blood sample established when the security seal upon the vial and the chain of custody report tended to prove that the sample at all times contained defendant’s blood); State v. Hartley, 212 N.C. App. 1, 16, 710 S.E.2d 385, 398 (2011) (no error in admitting rectal swab absent any reason to believe evidence was altered and possibility of tampering was remote); State v. McAllister, 190 N.C. App. 289, 299, 660 S.E.2d 247, 253 (2008) (no error in admitting DNA evidence despite supposition that lead detective had motive and opportunity to plant evidence); State v. Hyman, 153 N.C. App. 396, 401, 570 S.E.2d 745, 748 (2002) (no error in admission of test results of victim’s urine absent any showing that evidence was tampered with or altered); Hairston, 123 N.C. App. at 759, 475 S.E.2d at 246 (no error in admitting blood sample when evidence showed that testifying witness or his nurse drew the blood); cf. State v. Davy, 100 N.C. App. 551, 558, 397 S.E.2d 634, 638 (1990) (no error in admitting hair and fiber evidence removed from defendant’s pants despite argument that he might have picked up the fibers from the police car in which the victim had ridden earlier).