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 and knowing murder, 17-A M.R.S.A. § 201(1)(A) (1983).
[¶ 2] On October 15, 2002, the court entered a judgment on a jury verdict finding Cookson guilty of two counts of knowing and intentional murder, 17-A M.R.S.A. § 201(1)(A), for causing the deaths of his ex-girlfriend, Mindy Gould, and the twenty-one-month-old
[¶ 3] During the trial, witness David Vantol confessed privately to Cookson's attorney and private investigator that he had committed both murders.
[¶ 4] Vantol also offered to provide police with clothing he claimed to have been wearing at the time he committed the murders, and which he indicated had been buried since the murders. Although Vantol 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).
[¶ 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:
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-trier
[¶ 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 "account[s] for the custody of the object from the time it figured in the events in question until its appearance in the courtroom," Field &
[¶ 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
[¶ 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).
ALEXANDER, J., dissenting.
[¶ 19] I respectfully dissent. The purpose of the DNA testing statutes, 15 M.R.S. §§ 2137, 2138 (2010), is to allow persons who allege that they have been wrongly convicted of serious crimes to seek DNA analysis of evidence "in the control or possession of the State that is related to the underlying investigation or prosecution," 15 M.R.S. § 2137(1). That DNA analysis may be ordered only if the moving party presents "prima facie evidence that" 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." 15 M.R.S. § 2138(4-A)(B). Further, the evidence must be "material to the issue of whether the person is the perpetrator of, or accomplice to, the crime that resulted in the conviction." Id. § 2138(4-A)(E). If the testing results are favorable and can exclude the person as the perpetrator, or an accomplice of the perpetrator, of the crime, the moving party must demonstrate by clear and convincing evidence that the results demonstrate actual innocence or that the moving party is otherwise entitled to a new trial. Id. § 2138(10).
[¶ 20] Discussing the origins of judicial interpretation of the chain of custody requirement, this Court's opinion observes:
[¶ 21] In Gallego, the Ninth Circuit listed the relevant factors in a chain of custody analysis, including "the nature of the article, the circumstances surrounding the preservation and custody of it, and the likelihood of intermeddlers tampering with it." 276 F.2d at 917, cited with approval in State v. Lewis, 401 A.2d 645, 647 (Me. 1979). Thus, based on precedent cited by this Court, a proponent of evidence must demonstrate that the material at issue (1) is in substantially the same condition as when the crime was committed, and (2) has been preserved or maintained in a manner that minimizes the likelihood of intermeddlers tampering with it.
[¶ 22] The clothing material at issue here meets none of the judicial prerequisites for a credible chain of custody, and it fails to meet each of the statutory prerequisites to order DNA testing. For two years, while the State's investigation was ongoing, it was not in the State's possession or control; it has been subject to conflicting tales of its origin and condition when the crime was committed; there were lots of opportunities and incentives for tampering; and the proffered "evidence" might show that Cookson had help in committing the murders, but it would not exclude his criminal liability.
[¶ 23] Instead, the history of the case—well known to the trial judge—demonstrates that this effort was an attempt to reopen and reargue a previously denied motion for a new trial, a denial that we affirmed on appeal. See State v. Cookson, 2003 ME 136, ¶¶ 28-35, 837 A.2d 101, 110-11. As recited in our 2003 opinion, the portion of that history relevant to the pending appeal is as follows:
Id. ¶¶ 2-3, 6-9, 11-13, 837 A.2d at 104-06.
[¶ 24] We affirmed denial of Cookson's motion for a new trial, noting that, as relevant to this appeal:
[¶ 25] As a matter of trial strategy, and because the defense did not believe Vantol to be credible, Cookson elected not to present Vantol's evidence at trial. Instead, Cookson waited until after the guilty verdict and then, things not having gone his way, Cookson pointed the finger at Vantol, asserting that he, Cookson, was innocent and that Vantol was the guilty party. By then, the allegedly exculpatory evidence that is the subject of this proceeding had been in Cookson's and/or Vantol's control where it could have been "substituted, tampered with, replaced or altered in a material way" for approximately two years.
[¶ 26] Tampering could have been accomplished because Cookson, who had been in a relationship with one of the murder victims, could have had access to, or advised Vantol how to get access to, DNA materials to place on the clothing. Further, the clothing offered for testing is of uncertain origin. It could have been Cookson's clothing, Vantol's clothing, clothing one of them wore at the time of the murders, or not, or, as Vantol had most recently claimed, clothing that he found in some old car. The clothing certainly was not evidence "in the control or possession of the State that is related to
[¶ 27] We should not countenance practices that, as trial strategy, elect not to disclose allegedly relevant testimony and material evidence and then, after trial, and after plenty of time for tampering, disclose that evidence for the first time, turn it over to the State, and then invoke the DNA statute to seek a new trial. Notably, the precedents cited by this Court to support the position that there may be a chain of custody of evidence "in the control or possession of the State," all involve evidence that came into the State's possession days, weeks, or months after the commission of the crime, but during the State's investigation of the crime and before trial. None involve evidence known only to the defense or defense counsel before completion of trial that the defense then tried and failed to claim was newly discovered evidence to support a new trial.
[¶ 28] The problems with Cookson's claim for DNA testing are emphasized by comparing Cookson's claim to a more common claim for DNA testing, as recently addressed by the United States Supreme Court in Skinner v. Switzer, 562 U.S. ___, 131 S.Ct. 1289, 179 L.Ed.2d 233 (2011). Skinner also involved the murder of a defendant's girlfriend and, there, two children in her home; an allegation of an alternative suspect; and a strategic choice not to reference evidence that might be tested for DNA at trial for fear it would harm the defendant's position. Id. at ___, 131 S.Ct. at 1293-95. But Skinner differs from the instant case in three critical respects. First, the evidence that Skinner sought to have tested for DNA was seized by the police at the crime scene upon discovery of the crime. Id. at ___, 131 S.Ct. at 1294-95. Second, following commission of the crime, the evidence was never in the defendant's or an accomplice's exclusive possession, or its whereabouts known only to the defendant and his attorneys. Id. Third, the prosecution acknowledged the integrity of the chain of custody of the evidence Skinner sought to have tested. Id. at ___, 131 S.Ct. at 1295 n. 5. With this history, the Skinner Court vacated a dismissal of Skinner's action and remanded for further proceedings to determine if the state court's refusal to order DNA testing of certain items of evidence was violative of Skinner's rights pursuant to 42 U.S.C.S. § 1983 (2002). Id. at ___, 131 S.Ct. at 1298-1300.
[¶ 29] To suggest that the trial court in this case erred in refusing to order DNA testing of this "evidence" with its very questionable chain of custody, even by the several stories of the person who claimed to have custody, would invite all sorts of post-trial mischief by persons who may have access to material they claim to be evidence and who have had the opportunity to tamper with that material in hopes of changing the result of the jury trial.
[¶ 30] Section 2138(4-A)(B) requires prima facie evidence directed to two issues, chain of custody and exclusion of tampering. The record supports the Superior Court's determination that, relying on Vantol's several versions of the source of the "evidence," Cookson had failed to demonstrate credible, prima facie evidence of a chain of custody of this material that was, as required by the DNA testing statute, "sufficient to establish that the evidence has not been substituted, tampered with, replaced or altered in a material way." 15 M.R.S. § 2138(4-A)(B). This Court's opinion addresses the first issue, prima facie evidence of chain of custody,
[¶ 31] At hearing, Cookson had the burden of proof on both issues. A party bearing the burden of proof at a hearing can prevail on a challenge to a finding that his burden has not been met only if he demonstrates that a contrary finding is compelled by the evidence. See State v. Pulsifer, 1999 ME 24, ¶ 14, 724 A.2d 1234, 1238; see also Ma v. Bryan, 2010 ME 55, ¶¶ 6, 8, 997 A.2d 755, 758-59. Here, the Superior Court was not compelled to conclude that Cookson had presented "prima facie evidence" that there was a sufficient chain of custody and that the evidence had not been subject to tampering or substitution when the asserted prima facie evidence, Vantol's testimony, provides conflicting versions of the origins and custody of that material during the two years before it was disclosed and turned over to the State and does not exclude opportunities for tampering.
[¶ 32] Vantol's alleged confession and his knowledge of the whereabouts of the murder weapon failed to serve as a basis for obtaining a new trial under the standard of review for denial of motions for a new trial applied in our 2003 opinion. That standard of review does not change, and Cookson should not be given the opportunity to present evidence that failed to justify his motion for a new trial by bootstrapping it through a DNA testing motion directed at material that was not "in the control or possession of the State," 15 M.R.S. § 2137(1), and for which Cookson failed to establish prima facie evidence of a chain of custody and exclusion of tampering.
[¶ 33] I would affirm the trial court's judgment.
Section 2138 details the process for such DNA testing petitions:
15 M.R.S. § 2138 (2010).
