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Parker v. State10/3/2005
ot self-destructive, attempt to establish a conspiracy.
C. Failure to Challenge Chain of Custody
In his third appellate claim of ineffective assistance, the petitioner posits that counsel failed to challenge the admissibility of the aluminum "crack" can. Apparently, he claims that the evidence was inadmissible because a chain-of-custody witness, Donald Hubbard, was absent at trial. We cannot be certain of the specifics of this claim because they are not elucidated in the petitioner's brief. As in the case of the failure to call witnesses, the failure to challenge the chain of custody of evidence is mentioned only topically and is, accordingly, waived. See R. Tenn. Ct. Crim. App. 10(b).
We recognize, however, that the post-conviction court did find that counsel performed deficiently on the issue of the chain of custody, and we pause to consider what merit lies in this issue had it not been waived. The petitioner's difficulty in pointing to Donald Hubbard's absence as a chain-of -custody witness is that the same witness whose testimony could create a problem about the initiation of the chain of custody is also the witness whose presence and testimony would provide the solution. As we noted above, we have no doubt that had Donald Hubbard's claim to have solely found the aluminum can come to light and had the defense contested the chain of custody, the state would have supplemented its apparently ready-in-waiting evidence of the chain of custody by including the provisional testimony of Donald Hubbard. Moreover, the petitioner has cited no other potential flaws in the chain of custody, and we discern none. Although the post-conviction court expressed concern that the chain of custody was intact based upon "trial" testimony, we recognize that the issue was not joined at trial. Had it been, we surmise that the available evidence would have warranted admission of the can.
Even if it had been held inadmissible, we believe that the post-conviction court's rationale for denying post-conviction relief - that the petitioner experienced no prejudice - is sound. In our view, the state presented enough evidence of the conviction offense without the "crack" can to create a jury question of guilt. Based on counsel's testimony, the petitioner was apparently eager to testify, and the admission of drug test results - not the admission of the aluminum can - was the event that caused counsel to favor the petitioner's testifying. Once he testified, the case was lost, and our conclusion in this respect is shared not only by trial counsel, but also by the post- conviction judge (who was also the trial judge) and by a panel of this court on direct appeal. The post-conviction court concluded that not even an effective challenge to the chain of custody of the "crack" can would have yielded a different result at trial. We agree.
III. Conclusion
We find no basis for reversing the post-conviction court and affirm its order.
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