MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 23 2019, 7:01 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brian A. Karle Curtis T. Hill, Jr.
Ball Eggleston, PC Attorney General of Indiana
Lafayette, Indiana
Jesse R. Drum
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Johnny Jones, December 23, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1190
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Shatrese M.
Appellee-Plaintiff. Flowers, Judge
Trial Court Cause No.
49G02-1509-MR-31503
Najam, Judge.
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Statement of the Case
[1] Johnny Jones appeals his convictions for murder, a felony, and rape, as a Class
A felony, following a jury trial. Jones raises one issue for our review, namely,
whether the trial court abused its discretion when it admitted evidence that his
DNA had been found on swabs taken from the victim during an autopsy.
[2] We affirm.
Facts and Procedural History
[3] On November 5, 1998, officers with the Indianapolis Police Department
responded to a call regarding a house fire at the home of Kenya Edwards.
When officers arrived, they observed that a window to a bedroom “had been
broken out.” Tr. Vol. II at 117. Once inside, officers saw “obvious signs of a
struggle.” Id. at 138. Officers then located Edwards’ body in the basement, and
they saw that “the majority of the upper part” of her body had been “burned
off.” Id. at 150. The officers also observed that Edwards was not wearing any
pants and that she had electrical cords tied around her ankles.
[4] The next day, the coroner performed an autopsy on Edwards. Doctor Thomas
Sozio, a forensic pathologist, reviewed the coroner’s report. 1 Dr. Sozio noted
that Edwards “displayed areas of burns to the outside of her body” and that
“[t]here was black soot that was present within the nose, mouth, [and] in the
1
During the pendency of the case, the coroner suffered a stroke and is no longer able to communicate.
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larynx,” which told him “that she was alive when the fire was starting.” Tr.
Vol. III at 14, 16. He also noticed that “there were some ligatures around the
ankles and wrist areas” where electrical cords “had been cut and tied.” Id.
Based on the injuries to Edwards’ body, Dr. Sozio concluded that her death
was a homicide.
[5] David Willoughby, the liaison between the Marion County Forensic Service
Agency (“Crime Lab”), the police department, and the coroner, attended
Edwards’ autopsy. While there, Willoughby collected swabs from Edwards’
mouth, vagina, and anus. Willoughby then packaged the swabs in envelopes
and put his initials over the seals “to ensure that what [he] collected from the
autopsy [wa]s what [wa]s contained inside the envelopes[.]” Id. at 2.
Willoughby labeled the oral swabs as item M3, the vaginal swabs as item M5,
and the anal swabs as item M7. Willoughby then placed all of the evidence that
he had collected into the “property room,” which is a sealed facility. Id.
[6] Sangeete Joshi, a serologist with the Crime Lab, then took those envelopes
from the property room for analysis. The envelopes were “sealed” and “did not
show any signs of tampering.” Id. at 124. When she opened the envelopes,
Joshi saw that each envelope contained four swabs, which she tested for semen.
Joshi did not find semen on the oral swabs, but she found semen on the vaginal
and anal swabs. Accordingly, Joshi prepared the samples to be analyzed by a
DNA analyst. However, because there was no sample from a suspect for
comparison, Joshi placed the samples into cold storage.
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[7] In 2009, Tonya Fishburn, a forensic scientist with the Crime Lab, took the
vaginal and anal swabs that Joshi had prepared out of storage. Fishburn then
extracted the DNA from the samples and separated it into epithelial fractions
and sperm fractions. For the vaginal swabs, Fishburn was able to determine
that the epithelial fraction matched the DNA profile for Edwards. She was also
able to determine that the DNA for the sperm fraction was a mixture of a major
contributor and a minor contributor. Fishburn concluded that the major
contributor came from Unknown Male A and the minor contributor came from
Edwards. Fishburn was also able to determine that the epithelial fraction of the
DNA from the anal swabs matched Edwards’ DNA profile and that the DNA
from the sperm fraction was a mixture of a major and minor contributor. For
that sample, the DNA profile of the major contributor matched that of
Edwards, and the DNA profile of the minor contributor was from Unknown
Male A. Fishburn then placed the DNA sample of Unknown Male A into a
nationwide database.
[8] Thereafter, in January 2015, Detective David Ellison with the Indianapolis
Metropolitan Police Department received information “that there was a
potential hit” on the DNA of Unknown Male A. Id. at 46. On February 3,
Detective Ellison learned that the DNA of Unknown Male A matched Jones’
DNA. Accordingly, Detective Ellison interviewed Jones. Jones denied
knowing Edwards, and Detective Ellison was unable “to find any connection”
between Jones and Edwards. Id. However, Detective Ellison discovered that
Jones lived “less than a mile and a half” from Edwards at the time of the
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murder. Id. at 63. And, after he spoke with Jones, Detective Ellison obtained a
DNA sample in order to perform a “confirmation swab.” Id. at 47. Thereafter,
Fishburn tested the DNA sample that Detective Ellison had obtained and
confirmed that the DNA profile of Unknown Male A matched Jones’ DNA
profile.
[9] The State charged Jones with murder, a felony (Count 1); felony murder; a
felony (Count 2); burglary, as a Class A felony (Count 3); and rape, as a Class
A felony (Count 4). The trial court held a jury trial on April 1 through April 3,
2019. Prior to the start of the first day of the trial, the State moved to dismiss
Count 3, which motion the trial court granted.
[10] At Jones’ trial, the State called Willoughby as a witness. During his testimony,
the State moved to admit the oral, vaginal, and anal swabs as evidence. The
swabs were in their envelopes, which contained Willoughby’s “handwriting on
the front, where it came from, the date and the . . . autopsy number,” and his
initials on the seals. Id. Jones stated that he had “[n]o objection” to the
admission of that evidence. Id. at 3.
[11] On cross-examination, Jones asked Willoughby if, in this particular autopsy, he
had taken “three swabs.” Id. at 4. Willoughby responded: “Yes[.]” Id. Jones
then asked Willoughby if item M3 “was one oral swab,” if item M5 “was one
vaginal swab,” and if item M7 was “one anal swab.” Id. at 6, 7. Willoughby
responded affirmatively to all three questions. Jones then asked if “the oral
swab, anal swab, and vaginal swab” were “the only three swabs [he] took.” Id.
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at 8. Willoughby responded that they were. At that point, Jones had admitted
as evidence a copy of Willoughby’s laboratory report that detailed the items
that Willoughby had collected from Edwards’ autopsy. That report identified
item M3 as “one (1) oral swab,” item M5 as “one (1) vaginal swab,” and item
M7 as “one (1) anal swab.” Ex. at 115.
[12] Joshi also testified at Jones’ trial. When she began to testify about her analysis
of the swabs, Jones interjected and asked if the envelope that contained the oral
swabs was “sealed shut” when she received it. Tr. Vol. III at 95. Joshi stated
that it was. Jones also asked if, on the outside of the envelope, “it said oral
swab” with “no s.” Id. at 96. Joshi responded that the envelope was “only
marked oral swab.” Id. Jones then asked if there were four swabs inside of the
envelope, to which Joshi responded that there were.
[13] At that point, Jones objected “to any . . . testimony about any testing or
analysis of these swabs” because there was an “inaccurate chain of custody” as
“it’s only been laid a foundation that there was one swab taken, and now we
have four swabs in the envelope.” Id. In response, the State asserted that
“those exhibits are sealed with David Willoughby’s initials and they are sealed
again with Dr. Joshi’s initials. There’s no indication that those seals have been
broken or tampered with, or that anyone else has gotten in those. So as far as
the chain of custody, that’s been established.” Id. The trial court overruled
Jones’ objection.
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[14] The State then proceeded to question Joshi about the swabs. Specifically, the
State asked Joshi if she had tested the swabs for seminal material. Joshi
testified that she did not identify any semen on the oral swabs but that she
found semen on the vaginal and anal swabs. On cross-examination, Jones
again questioned Joshi about the evidences she had received from the property
room. Jones asked if the envelope that contained the vaginal swabs was labeled
as “one vaginal swab.” Id. at 146. Joshi responded that it was “marked as
vaginal swab. They didn’t mark how many vaginal swab [sic]. They didn’t
mark the one vaginal swab, but they marked as vaginal swab.” Id. When Jones
asked if the envelope listed one vaginal swab as the quantity, Joshi responded
that “[o]ne means . . . only the one envelope.” Id. at 147.
[15] Because of the “issue” that had come up regarding the number of swabs that
Willoughby had taken during the autopsy, the State recalled Willoughby as a
witness. Id. at 165. Willoughby testified that he did not have an independent
recollection of having taken the swabs. However, he testified that, “[d]ue to the
identification and the correct procedures of the label on it with [his] initials and
case number, the date and [his] initials with the evidence seal,” he was able to
determine that the envelope that contained the four vaginal swabs contained
“what [he] collected . . . at the autopsy.” Id. at 165. Willoughby further
testified that the envelope that contained four anal swabs was “in the condition
[in] which [he] sealed it with [his] initials, the case number, the date, [and] the
autopsy number[.]” Id. at 167.
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[16] Jones again cross-examined Willoughby and asked about the number of swabs
he had taken and the fact that each envelope listed only one oral swab, one
vaginal swab, and one anal swab. Willoughby stated that the label “probably
should have . . . had an s, swabs.” Id. at 171. Willoughby further testified that
it is “standard operating procedure” to comingle all swabs taken from one area
in the same envelope “regardless of how many swabs you used” as long as they
are not comingled with the swabs of another area. Id. at 172. In addition, he
testified that “the swabs identification on there means that a swabbing was
done” and that, “no matter how many swabs per orifice, it’s counted as a
swabbing.” Id. at 172, 174.
[17] The State also presented Fishburn’s testimony as evidence. Fishburn testified
that the major contributor to the sperm fraction of the DNA from the vaginal
swab matched the DNA profile of Jones “and is estimated to occur once in
more than 330 billion unrelated individuals,” which is the “upper threshold” for
their statistics. Id. at 192. Fishburn also testified that the minor contributor to
the sperm fraction of the anal swab matched Jones’ DNA profile.
[18] At the conclusion of the trial, the jury found Jones guilty of Counts 1 and 4, but
not guilty of Count 2. The court entered judgment of conviction accordingly
and sentenced Jones to an aggregate sentence of 110 years executed in the
Department of Correction. This appeal ensued.
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Discussion and Decision
[19] Jones contends that the trial court abused its discretion when it admitted certain
evidence. As our Supreme Court has stated:
Generally, a trial court’s ruling on the admission of evidence is
accorded “a great deal of deference” on appeal. Tynes v. State.
650 N.E.2d 685, 687 (Ind. 1995). “Because the trial court is best
able to weigh the evidence and assess witness credibility, we
review its rulings on admissibility for abuse of discretion” and
only reverse “if a ruling is ‘clearly against the logic and effect of
the facts and circumstances and the error affects a party’s
substantial rights.’” Carpenter v. State, 18 N.E.3d 998, 1001 (Ind.
2014) (quoting Clark v. State, 994 N.E.2d 252, 260 (Ind. 2013)).
Hall v. State, 36 N.E.3d 459, 466 (Ind. 2015). On appeal, Jones contends that
the trial court abused its discretion when it admitted as evidence the swabs and
the subsequent testimony regarding the analysis of those swabs because the
State had failed to establish an adequate chain of custody for that evidence. 2
[20] It is well settled that the State “bears a higher burden to establish the chain of
custody of ‘fungible’ evidence, such as blood and hair samples, whose
appearance is indistinguishable to the naked eye.” Troxell v. State, 778 N.E.2d
811, 814 (Ind. 2002). But an “adequate foundation establishing a continuous
2
The State contends that Jones has waived his argument for our review because he affirmatively stated that
he had no objection to the admission of the swabs as evidence. The State is correct that Jones had no
objection when the State moved to admit the swabs. However, after Joshi first testified that each envelope
contained four swabs instead of one, Jones objected. We assume for the sake of argument that Jones’
objection at the time the discrepancy between the number of swabs became apparent was timely and that he
preserved the issue for our review.
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chain of custody is established if the State accounts for the evidence at each
stage from its acquisition, to its testing, and to its introduction at trial.”
Espinoza v. State, 859 N.E.2d 375, 382 (Ind. Ct. App. 2006). “To establish a
proper chain of custody, the State must give reasonable assurances that the
evidence remained in an undisturbed condition.” Id.
[21] Jones specifically asserts that the State failed to establish an adequate chain of
custody for the vaginal and anal 3 swabs because Willoughby testified that he
had collected only one swab from each location on Edwards’ body but that
Joshi testified that she had received four swabs to test. In essence, Jones
contends that the State failed to account for three of the four swabs in each
envelope from their acquisition by Willoughby until their testing by Joshi. 4 We
cannot agree.
[22] The State readily established a proper chain of custody over the swabs. The
record demonstrates that Willoughby took swabs of Edwards’ mouth, vagina,
3
Jones also contends that the State failed to establish an adequate chain of custody for the oral swabs.
However, Joshi did not find any semen on those swabs. Accordingly, there was no evidence obtained from
those swabs that was harmful to Jones’ defense and we need not address his argument regarding the oral
swabs.
4
To the extent that Jones’ argument is premised on the label on the envelopes, which used “swab” in the
singular, as an identifier of the number of swabs within an envelope, that argument is without merit.
Willoughby testified that “the swabs identification” on the envelope “means that a swabbing was done.” Tr.
Vol. III at 172. He further testified that the envelope “should have . . . had an s, swabs.” Id. at 171. In
addition, when asked if the quantity on an envelope listed one swab, Joshi testified that the “[o]ne
means . . . only the one envelope.” Id. at 147. And Joshi testified that, even though one of the envelopes was
labeled “vaginal swab,” that was not an indication of “how many vaginal swab [sic].” Id. at 147.
Accordingly, it is clear that the singular use of “swab” on the envelope’s label did not denote the number of
swabs used but, rather, simply identified that a swabbing of that area had been done.
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and anus during her autopsy. He then packaged those swabs in envelopes and
wrote his initials over the seals “to ensure that what [he] collected from the
autopsy [wa]s what [wa]s contained inside the envelope.” Tr. Vol. III at 2.
Willoughby then placed the envelopes into the property room, which is a
“sealed facility” that can only be accessed by authorized personnel. Id.
Thereafter, Joshi took the envelopes from the property room and observed that
they were “sealed” and “did not show any signs of tampering.” Id. at 124.
When she opened the envelopes, there were four swabs in each envelope.
[23] Further, Willoughby testified that he was able to determine that the envelope
with the four vaginal swabs contained “what [he] collected . . . at the autopsy.”
Id. at 165. Additionally, Willoughby testified that the envelope that contained
the anal swabs was “in the condition [in] which [he] sealed it with [his] initials,
the case number, the date, [and] the autopsy number[.]” Id. at 167. And
Willoughby testified that it is “standard operating procedure” to comingle all
swabs taken from one area “regardless of how many swabs you used” in the
same envelope as long as they are not comingled with swabs from another area.
Id. at 172. Accordingly, despite Jones’ assertions, it is clear that the envelopes
that Joshi received for testing, which each contained four swabs, were in the
same condition that they had been in when Willoughby sealed them.
[24] Any apparent discrepancy between the number of swabs taken was dispelled by
Willoughby’s testimony, which we have already noted, that “no matter how
many swabs per orifice, it’s counted as a swabbing.” Id. at 174. And the
number of swabs packaged in each envelope does not affect the ultimate finding
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that the evidence collected matched Jones’ DNA profile. The evidence
supports the conclusion that the protocols for collecting, preserving, and testing
the swabs were followed. And there is no question that Willoughby collected
and secured the evidence, which was intact when Joshi received it for testing.
The chain of custody was uninterrupted.
[25] The State gave reasonable assurances that the swabs remained in an
undisturbed condition from their acquisition to their testing. As such, the State
established a proper chain of custody for the swabs, and the trial court did not
abuse its discretion when it admitted as evidence the swabs or the testimony
regarding the analysis of the swabs. We therefore affirm Jones’ convictions.
[26] Affirmed.
Vaidik, C.J., and Tavitas, J., concur.
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