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Delaware Supreme Court: Substitution Not Allowed for Chain of Custody Witness

by Anthony W. Accurso

The Supreme Court of Delaware vacated a defendant’s convictions for substance possession after the trial court allowed the State to substitute a different officer for testimony instead of the one who conducted the search.

In June 2018, Wilmington Police pulled over a vehicle belonging to Stephen Hairston after witnessing a minor traffic offense. During the stop, one officer “noticed [Hairston] look back at officers and then reach over into the front passenger area of the vehicle and retract his hand quickly.” The officer also noticed the odor of cannabis and a “knotted plastic bag containing a powdery substance on top of a cup in plain view at the passenger’s feet.”

Officers directed Hairston and his passenger out of the vehicle while Corporal Lynch searched the vehicle. During the search, Hairston fled the scene. He was apprehended by Corporal MacNamara, and Corporal Bartolo assisted in arresting Hairston while returning him to the vehicle.

During the search of the vehicle, Lynch found two baggies, one containing a “green leafy plant-like substance,” which a lab later confirmed was cannabis, and the other containing a “white powdery substance,” which later tested as heroine.

At trial, Hairston moved to require Lynch to testify under Subchapter III of Chapter 43 of Title 10 of the Delaware Code. The trial was continued three times because Lynch was on medical leave and thus “unavailable” for appearance. The Superior Court, over Hairston’s objection, ultimately allowed Bartolo to testify in Lynch’s place.

Hairston was convicted, and he appealed, arguing that Subchapter III’s testimony requirement does not allow for substitutions.

The Delaware Supreme Court noted that Subchapter III is comprised of §§ 4330-4332. According to the Court, these sections “establish[] a procedural framework for the admission and consideration of controlled-substance-testing evidence in both criminal and civil proceedings.” Under § 4330, the State may use a forensic toxicology report without requiring a chemist or toxicologist to appear in court, if the report meets certain criteria.

However, to comply with the confrontation clause requirements of the Sixth Amendment to the U.S. Constitution, § 4332 states in part, “in a criminal proceeding, the prosecution shall, upon written demand of a defendant filed in the proceeding at least 5 days prior to trial, require the presence of the forensic toxicologist or forensic chemist, or any person in the chain of custody as a prosecution witness” at trial.

Section 4331 defines the “chain of custody” to include “a. the seizing officer,” “b. the packaging officer, if the packaging officer is not also the seizing officer,” and “c. the forensic toxicologist or forensic chemist....”

The State acknowledged that the requirements of the statute were “unambiguous” and “concede[d] that it did not comply with them” when it proffered Bartolo in place of Lynch. However, it argued that under Delaware Rules of Evidence 901(a), testimony is allowed from “a direct eyewitness and participant in the search, and directly observed the seizure and packaging ... [and] there is for admissibility purposes, a reasonable probability that the evidence offered is what the proponent says it is, and that the evidence has not been misidentified, and no tampering, or adulteration, occurred for purposes of the seizing officer and packaging officer portion of the testimony.”

The Court rejected the State’s position that authentication sufficient to satisfy D.R.E. 901(a) obviates the requirements provided for in Subchapter III. It stated that using D.R.E. 901(a) to circumvent Subchapter III would render the latter “a nullity” and make it “superfluous,” which would counter the intention of the legislature in passing the bill.

The Court found that D.R.E. 901(a) does not conflict with Subchapter III because the authentication requirement may be accomplished in one of two ways. “The State may have witnesses visually identify the item as that which was actually involved with the crime, or it may establish a chain of custody which indirectly establishes the identity by tracing its continuous whereabouts.” Quin v. State, 841 A.2d 1239 (Del. 2004). As the forensic lab actually identified the substances, the State must establish the chain of custody to the lab.

The Court also noted that Bartolo “was not present for the entire motor vehicle search” because he left for a time to help apprehend Hairston when he fled. Thus, because Bartolo did not meet the definition of seizing of packaging officer, it was a reversible error for the Superior Court to allow his testimony in place of Lynch and to subsequently admit the forensic lab report.

Accordingly, the Court reversed Hairston’s convictions and remanded the case to the Superior Court. See: Hairston v. State, 249 A.3d 375 (Del. 2021). 


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Related legal case

Hairston v. State



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