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State v. Hayes

March 31, 1997


Appeal from Superior Court of King County. Docket No: 94-1-06823-3. Date filed: 07/08/94. Judge signing: Hon. James D. McCutcheon.

PER CURIAM -- Thomas Hayes, Arnold Wyrick and Brent Simmons were convicted of delivering cocaine after being identified on video - and audiotape exchanging drugs for money with undercover police officers. *fn1 Each appellant argues the trial court erred by denying his motion to suppress the videotape. Appellants' arguments have been rejected by the Supreme Court in State v. Clark, 129 Wash. 2d 211, 916 P.2d 384 (1996). Therefore, we affirm the denial of the suppression motions in each case and, because they raise no other issues, the convictions of Wyrick and Simmons. Hayes also argues the State failed to prove him guilty beyond a reasonable doubt because it did not establish the cocaine admitted at trial was the same substance he sold to Officer Terry. We disagree and affirm.

Officer Terry died between the transaction and Hayes' trial. At a pretrial hearing to determine the admissibility of exhibit 1, the cocaine allegedly delivered by Hayes, the trial court watched the portion of the videotape depicting Terry's involvement with Hayes. On the tape, Terry is shown and heard slowing his car down, opening the passenger side window, and asking about the availability of drugs. The car stops and Hayes approaches the passenger side. Terry tells him he is looking for a "forty." Hayes enters the car and shows Terry the contents of his right hand. Hayes gives the objects to Terry in exchange for money and leaves the car.

The State called Officer Schweiger to testify to the police department's standard operating procedure for handling narcotics and Terry's habits when handling such evidence. Schweiger testified he had worked with Terry in about 50 "buy-bust" operations and observed him packaging narcotics about 100 times, but admitted he did not work with Terry on the night at issue. Schweiger explained that the officer who buys drugs is responsible for retaining, packaging and marking the evidence. He said the procedure does not vary even where officers make more than one buy in an evening: the drugs from each buy are kept in separate baggies.

Schweiger said a second drug buy does not typically occur so shortly after the first buy as to preclude the officer from having time to put the drugs from the first buy into a baggie. He said Terry routinely followed the standard procedure. He identified Terry's signature on exhibit 1, a sealed narcotics envelope.

Hayes asked the trial court to view that portion of the videotape that captured Terry's conduct after meeting with Hayes because the tape showed Terry made a second suspected drug buy about 15 minutes later. The court declined, ruling that, even if Terry made multiple purchases on the night he met Hayes, Schweiger's testimony regarding Terry's habits negated the possibility of confusion of the evidence. The court found exhibit 1 admissible.

Hayes waived jury trial and, at trial before the court, Officer Sweetland testified that standard police procedure in multiple buy operations required buyer/officers to separately package evidence from each buy in different plastic baggies and to mark the baggies to differentiate between transactions. He said Terry was familiar with this procedure. Sweetland identified exhibit 1 as a standard police narcotics envelope. Upon the envelope was written the police case number, Hayes' name, and Terry's signature and serial number.

Crime lab scientist Dearmore testified she examined the contents of exhibit 1. Before doing so, she made sure the envelope was sealed and not tampered with. Inside the envelope was a plastic baggie, the contents of which included cocaine.

Hayes asserts the State failed to prove he delivered the cocaine contained in exhibit 1 because the videotape does not show that Terry separately packaged the items purchased from him before he bought additional suspected cocaine about 15 minutes later. In reviewing a challenge to the sufficiency of the evidence, the test is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" *fn2

Hayes' argument boils down to a challenge to the trial court's admission of exhibit 1. To be admissible as evidence of a crime, a physical object must be satisfactorily identified and shown to be in the same condition as when the crime was committed. *fn3 The trial court has discretion in determining the admissibility of physical evidence. The nature of the object, the circumstances of its preservation, including custody, and the likelihood of tampering are factors to be considered in determining admissibility. "The proponent need not identify the evidence with absolute certainty and eliminate every possibility of alteration or substitution." *fn4

The trial court did not abuse its discretion in admitting exhibit 1. First, the range of the video camera was limited to the passenger side and a portion of the driver's side of Terry's car; therefore, the failure of the tape to show Terry packaging the evidence purchased from Hayes is not dispositive. In addition, about 15 minutes -- ample time for Terry to have secured the items bought from Hayes -- separated Terry's transaction with Hayes from his next transaction. Moreover, the State presented evidence that Terry was not only familiar with standard packaging procedure but habitually followed it. Finally, the State established exhibit 1 was properly marked and sealed and did not appear to be tampered with.

That Terry himself was unavailable to positively identify exhibit 1 does not render it inadmissible. Failure to positively identify physical evidence goes only to its weight, not its admissibility. *fn5 Absent some evidence to suggest Terry commingled the evidence he purchased in his drug buys, or confused the sources of the evidence, we cannot conclude the trial court abused its discretion in admitting exhibit 1. With this evidence, the State proved beyond a reasonable doubt that Hayes delivered cocaine.

Therefore, we ...

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