Cookson v. State

GORMAN, J.

[¶ 1] In this post-conviction matter, Jeffrey A. Cookson challenges the decision of the Superior Court (Penobscot County, Cole, J.) denying his petition for DNA testing of items belonging to an alternative suspect in connection with Cookson’s 2002 conviction of two counts of intentional or knowing murder, 17-A M.R.S.A. § 201(1)(A) (1983).1 We vacate the decision and remand for further proceedings.

I. BACKGROUND

[¶ 2] On October 15, 2002, the court entered a judgment on a jury verdict finding Cookson guilty of two counts of knowing or intentional murder, 17-A M.R.S.A. § 201(1)(A), for causing the deaths of his ex-girlfriend, Mindy Gould, and the twen*1210ty-one-month-old son of Gould’s best friend.2 State v. Cookson (Cookson I), 2003 ME 136, ¶¶ 1-2, 837 A.2d 101, 104. The court sentenced Cookson to two consecutive life sentences. Id. ¶ 14, 837 A.2d at 106.

[¶ 3] During the trial, witness David Vantol confessed privately to Cookson’s attorney and private investigator that he had committed both murders.3 Immediately after the jury returned a verdict against Cookson, Cookson’s attorney disclosed the confession to the court and to the prosecutor. Later that same day, Vantol led police to a spot in the woods where he unearthed a gun that the State’s testing revealed was, in fact, the murder weapon.4

[¶ 4] Vantol also offered to provide police with clothing he claimed to have been wearing at the time he committed the mur-. ders, and which he indicated had been buried since the murders. Although Van-tol had taken investigators to the spot where the gun was hidden, he refused to take them to where the clothing was kept. Instead, two days after leading police to the murder weapon, Vantol gave the investigators a trash bag containing several clothing items, including a pair of sneakers, a jean jacket, a plaid shirt, a black wig, and an orange hat. The clothing was moldy, damp, and soiled, and appeared to have been buried for “quite some time.”

[¶ 5] During the next week, Vantol continued to confess to the murders, but because the police did not believe Vantol’s confessions, they asked him to submit to a polygraph test. Some time after the police told Vantol that he had “failed” the polygraph, Vantol called one of the lead detectives, distraught that police did not appear to believe his confessions, and expressed that he was going to hurt himself or others to be taken seriously. As a result, Vantol was admitted to Acadia Hospital. Six days after entering the hospital, Vantol recanted his confessions, and told investigators that he obtained the clothing he had provided to them from a junk car and that the items were unrelated to the murders. The clothing remains in the State’s possession.

[¶ 6] In December of 2004, and again in January of 2008, Cookson filed motions seeking DNA testing on the articles of clothing and other evidence provided to the investigators by Vantol pursuant to 15 M.R.S. §§ 2137, 2138 (2010).5 Following a *1211testimonial hearing, the court denied Cookson’s request for DNA testing as to the bulk of Cookson’s request, including the items of clothing provided by Vantol. We granted Cookson a certifícate of probable cause to pursue this appeal pursuant to 15 M.R.S. § 2138(6) and M.R.App. P. 19.

II. DISCUSSION

[¶ 7] Cookson challenges the court’s interpretation of 15 M.R.S. § 2138, which dictates the process by which a defendant may seek DNA analysis of evidence by post-conviction motion. See James v. State, 2008 ME 122, ¶ 11, 953 A.2d 1152, 1155. Section 2138 requires the court to order DNA analysis if the moving party presents prima facie evidence of five criteria:

A. A sample of the evidence is available for DNA analysis;
B. The evidence to be tested has been subject to a chain of custody sufficient to establish that the evidence has not been substituted, tampered with, replaced or altered in a material way;
C. The evidence was not previously subjected to DNA analysis or, if previously analyzed, will be subject to DNA analysis technology that was not available when the person was convicted;
D. The identity of the person as the perpetrator of the crime that resulted in the conviction was at issue during the person’s trial; and
E. The evidence sought to be analyzed, or the additional information that the new technology is capable of providing regarding evidence sought to be reanalyzed, is material to the issue of whether the person is the perpetrator of, or accomplice to, the crime that resulted in the conviction.

15 M.R.S. § 2138(4-A).

[¶ 8] “Prima facie” in this context regards the preliminary burden of production of evidence; it requires proof only of “enough evidence to allow the fact-*1212trier to infer the fact at issue and rule in the party’s favor.”6 Anderson v. State, 831 A.2d 858, 865-66 (Del.2003) (quotation marks omitted); accord Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 n. 7, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Prima facie evidence requires only “some evidence” on every element of proof necessary to obtain the desired remedy. Weldon v. Hawkins, 183 Ill.App.3d 525, 131 Ill.Dec. 876, 539 N.E.2d 229, 231 (1989). Thus, prima facie proof is a “low standard” that does not depend on the reliability or credibility of the evidence, all of which may be considered at some later time in the process. Id.; Zapata-Matos v. Reckitt & Colman, Inc., 277 F.3d 40, 44 (1st Cir.2002).

[¶ 9] In evaluating whether a moving party has satisfied all five criteria on a prima facie basis, section 2138 expressly requires that “[t]he court shall state its findings of fact on the record or shall make written findings of fact supporting its decision to grant or deny a motion to order DNA analysis.” 15 M.R.S. § 2138(5). When findings are required by statute, they “must be stated with sufficient specificity to permit understanding and meaningful appellate review.” Schwartz v. Unemployment Ins. Comm’n, 2006 ME 41, ¶ 10, 895 A.2d 965, 970. In denying Cookson’s motion as to Vantol’s clothing, however, the court gave only a legal analysis of the statute and its ultimate conclusion that Cookson failed to meet the chain of custody requirement of section 2138(4-A)(B); the judgment contains no findings of fact as to chain of custody, or findings or conclusions as to any of the other criteria of section 2138(4-A). We must therefore vacate the court’s judgment and remand the matter to the Superior Court for it to issue the findings required by section 2138(5) as to all five criteria on Cookson’s post-conviction DNA motion.

[¶ 10] We also clarify the requirement of chain of custody in section 2138(4-A)(B) because, despite the lack of findings, the court’s legal interpretation of that criterion is squarely presented to us. We examine de novo the meaning of section 2138(4-A)(B) by looking first to its plain language in light of the whole statutory scheme. See State v. Aboda, 2010 ME 125, ¶ 10, 8 A.3d 719, 722.

[¶ 11] Although the post-conviction DNA statute does not define “chain of custody,” the phrase is a legal term of art. The Ninth Circuit Court of Appeals is credited with the first statement of the chain of custody requirement: “Before a physical object connected with the commission of a crime may properly be admitted in evidence there must be a showing that such object is in substantially the same condition as when the crime was committed.” Gallego v. United States, 276 F.2d 914, 917 (9th Cir.1960). Maine Rule of Evidence 901 likewise requires that, to be admissible at trial, evidence must be authenticated in a manner “sufficient to support a finding that the matter in question is what its proponent claims,” State v. Thompson, 503 A.2d 689, 691 (Me.1986) (quotation marks omitted), by establishing a “continuity of possession,” State v. Thibodeau, 353 A.2d 595, 602 (Me.1976) (quotation marks omitted), that “aceount[s] for the custody of the object from the time it figured in the events in question until its appearance in the courtroom,” Field & *1213Murray, Maine Evidence § 901.3 at 542 (6th ed.2007),

[¶ 12] Identifying the initial link in the chain of custody, i.e., from what time the proponent must account for the item’s whereabouts and safekeeping, is a matter of dispute in the instant appeal. The State concedes that an adequate chain of custody exists from the time that police took possession of the clothing provided by Vantol, but the State and Cookson disagree as to whether the two years that passed between the time of the crime itself and the time Vantol gave the clothing to police is relevant to the chain of custody requirement for post-conviction DNA testing purposes.

[¶ 13] Many decisions from Maine and elsewhere discuss chain of custody only from the time an item comes into police possession. See, e.g., State v. Lobozzo, 1998 ME 228, ¶ 10, 719 A.2d 108, 110 (considering the chain of custody in terms of the collection of the evidence by police from the crime scene, transportation of the evidence to the police station, and maintenance of the evidence in police storage); State v. Vanassche, 566 A.2d 1077, 1079 (Me.1989) (discussing “[w]hether the exhibits had been tampered with while in the custody of the police” (quotation marks omitted)); Illinois v. Moore, 377 Ill.App.3d 294, 316 Ill.Dec. 367, 879 N.E.2d 434, 438 (2007) (referring to the defendant’s duty to “establish a chain of custody from the Chicago police department”).

[¶ 14] In several cases, however, some period of time before the evidence comes into police possession has been considered relevant in a chain of custody analysis. In State v. Lagasse, for example, a witness removed the murder weapon from the scene of the crime and retained it for five days before turning it over to police. 410 A.2d 537, 540-41 (Me.1980). We upheld the admission of the weapon at trial, over the defendant’s Rule 901 objection, based on the testimony of the witness regarding his taking and retention of the weapon, combined with the stipulation of a complete chain of custody once the weapon was in police possession. Id.

[¶ 15] Similarly, in State v. Morris, the defendant challenged the admission of a stolen gun. 440 A.2d 1035, 1036 (Me.1982), superceded on other grounds as recognized in State v. Nile, 557 A.2d 950, 952 (Me.1989). We held that “[t]he State’s witnesses accounted for the weapon’s chain of custody, except for the ten-day period between the theft and the subsequent recovery by the police,” and that the possibility of tampering during that time, without more, affected only the weight of the evidence rather than its admissibility. Id.; see also Nebraska v. Phelps, 273 Neb. 36, 727 N.W.2d 224, 228 (2007) (including, in a chain of custody analysis, the three-month period between the victim’s disappearance and the discovery of her clothing).

[¶ 16] In addition, chain of custody is often considered to begin when an emergency room physician or nurse obtains a sample of biological material from a victim or a defendant, rather than when that practitioner turns the sample over to police. See, e.g., Thompson, 503 A.2d at 690-91 (involving a private lab’s drawing of a blood sample); State v. Libby, 453 A.2d 481, 488 (Me.1982) (discussing the physician’s drawing of a blood sample from the defendant as the initial link in the chain of custody).

[¶ 17] The central point of the chain of custody requirement is to assure that the evidence is what it purports to be — that is, related to the crime — and that it has not been contaminated or tampered with such that testing of it will yield unreliable (and therefore irrelevant) results. See Field & Murray, Maine Evidence § 901.3 at 542. To that end, consideration of the chain of custody must include any *1214period of time during which an opportunity for contamination or tampering existed. When police seize evidence from a crime scene immediately after the crime has occurred, the relation of that evidence to the crime is established by its proximity to the scene. Because the opportunity for tampering or contamination is likely to include only the time the evidence is in police possession, many decisions discuss only that time frame.7 In contrast, when, as here, there is some period of time between the commission of the crime and the police possession of the related evidence, chain of custody must account for the item’s whereabouts from the time of commission of the crime and including once the police take possession. In short, the temporal scope of the chain of custody depends on the context of the particular crime and the events surrounding the discovery and retention of the evidence in question.

[¶ 18] We conclude that the temporal scope of chain of custody in this case includes the period of time before the police took possession of the clothing; the period of time after the commission of the crimes up until Vantol provided the clothing to police presents a lengthy opportunity for contamination or tampering. It is therefore Cookson’s burden to account for the clothing’s chain of custody from the time of the murders to the present day.

The entry is:

Judgment vacated and remanded to the Superior Court for findings of fact and conclusions of law consistent with this opinion pursuant to 15 M.R.S. § 2138 (2010).

. Tide 17-A M.R.S.A. § 201(1)(A) has since been amended. P.L.2001, ch. 383, § 8 (effective Jan. 31, 2003).

. The factual details of Cookson's conviction are set forth in State v. Cookson (Cookson I), 2003 ME 136, ¶¶ 2-5, 837 A.2d 101, 104-05.

. Initially, Vantol claimed he had committed both murders. Vantol later claimed that Cookson had arranged and/or participated in the murders.

. The State’s ballistic expert later explained that his trial testimony identifying another gun as the murder weapon had been inaccurate.

. Title 15 M.R.S. § 2137(1) (2010) allows:

A person who has been convicted of and sentenced for a crime under the laws of this State that carries the potential punishment of imprisonment of at least one year and for which the person is in actual execution of [the] sentence ... may file a written post-judgment of conviction motion in the underlying criminal proceeding moving the court to order DNA analysis of evidence in the control or possession of the State that is related to the underlying investigation or prosecution that led to the person’s conviction and a new trial based on the results of that analysis.

Section 2138 details the process for such DNA testing petitions:

1. Filing motion. A person authorized in section 2137 who chooses to move for DNA analysis shall file the motion in the underlying criminal proceeding. The motion must be assigned to the trial judge or justice who imposed the sentence unless that judge or justice is unavailable, in which case the appropriate chief judge or chief justice shall assign the motion to another judge or justice. Filing and service must be made in accordance with Rule 49 of the Maine Rules of Criminal Procedure.
*12114-A. Standard for ordering DNA analysis. The court shall order DNA analysis if a person authorized under section 2137 presents prima facie evidence that:
A. A sample of the evidence is available for DNA analysis;
B. The evidence to be tested has been subject to a chain of custody sufficient to establish that the evidence has not been substituted, tampered with, replaced or altered in a material way;
C. The evidence was not previously subjected to DNA analysis or, if previously analyzed, will be subject to DNA analysis technology that was not available when the person was convicted;
D. The identity of the person as the perpetrator of the crime that resulted in the conviction was at issue during the person's trial; and
E. The evidence sought to be analyzed, or the additional information that the new technology is capable of providing regarding evidence sought to be reanalyzed, is material to the issue of whether the person is the perpetrator of, or accomplice to, the crime that resulted in the conviction.
5. Court finding; analysis ordered. The court shall state its findings of fact on the record or shall make written findings of fact supporting its decision to grant or deny a motion to order DNA analysis. If the court grants a motion for DNA analysis under this section, the crime lab shall perform DNA analysis on the identified evidence and on a DNA sample obtained from the person.
6. Appeal from court decision to grant or deny motion to order DNA analysis. An aggrieved person may not appeal as a matter of right from the denial of a motion to order DNA analysis. The time, manner and specific conditions for taking that appeal to the Supreme Judicial Court, sitting as the Law Court, are as the Supreme Judicial Court provides by rule. The State may not appeal from a court order to grant a motion to order DNA analysis.

15 M.R.S. § 2138 (2010).

. This is distinguished from the meaning of "prima facie” in other contexts regarding the burden of persuasion, which is to "denote the establishment of a legally mandatory, rebutta-ble presumption.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 n. 7, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); 9 John Henry Wigmore, Evidence in Trials at Common Law § 2494 (Chadbourn rev. 1981).

. Of course, material that will be evidence of a crime can be contaminated contemporaneously with or even before the occurrence of the crime. See, e.g., Kyles v. Whitley, 514 U.S. 419, 428-32, 445-49, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (affording the defendant post-conviction relief based on the State's failure to disclose exculpatory evidence supporting the defense theory that a witness had "planted evidence” against the defendant).