Evidence_DNA test_chain of custody_insufficient
The chain of custody for DNA samples for a DNA test that was not court-ordered was
not complete, a proper foundation was not established for the test results, and a paternity
judgment was remanded for a new trial.
James R. Caviness, attorney for plaintiff.
William L. Davis, III, attorney for defendant.
TIMMONS-GOODSON, Judge.
Marion A. Davis (“defendant”) appeals a civil judgment
declaring him to be the father of the minor child, Daquadrin
Lawson. For the reasons stated herein we vacate the judgment of
the trial court and remand this case for a new trial.
The evidence presented at trial tends to show the following:
Defendant and Monica Louise Forbes (“Forbes”) had a sexual
relationship between April and June, 1991. In February or March of
that year, Forbes had one sexual encounter with Arthur Pierre Frink
(“Frink”), who is defendant's second cousin. Soon after her
relationship with defendant ended, Forbes began dating and living
with Arthur Lawson (“Lawson”).
On 7 December 1991, Forbes gave birth to Daquadrin E'Maud
Forbes Lawson (“Daquadrin”). Lawson believed that Daquadrin was
his son, and Forbes did not tell him the truth. Forbes andDaquadrin lived with Lawson until 1994 when Forbes told Lawson that
Daquadrin was not his son. Four months after the relationship
between Forbes and Lawson ended, Lawson reported to the Columbus
County Department of Social Services (“DSS”) that Forbes was an
“unfit mother.” Forbes's mother, Katie Louise Hamilton
(“Hamilton”), was subsequently given custody of Daquadrin.
Hamilton applied for and received public assistance funds to assist
in supporting Daquadrin.
In 1998, Forbes signed an affidavit of parentage at the
request of DSS identifying defendant as Daquadrin's father. A
paternity test was performed, which concluded that the probability
that defendant fathered Daquadrin was 99.62 percent.
(See footnote 1)
DSS
subsequently filed a complaint against defendant seeking
adjudication of Daquadrin's paternity, continuing support and
maintenance for the child, and reimbursement of public assistance
payments expended.
Over defendant's objection at trial, Dr. Gary Stuhlmiller
(“Dr. Stuhlmiller”), director of the Department of Paternity
Testing of Laboratory Corporation of America, testified that based
on the deoxyribonucleic acid (“DNA”) test results the defendant
could not be excluded from paternity, and that there was a 99.62
percent probability that defendant was Daquadrin's father. By his
objection, defendant took issue with whether there had been aproper showing of the chain of custody for the blood specimens. In
offering his opinion, Dr. Stuhlmiller relied on the following
exhibits:
Exhibit 1 - Client Authorization form for
blood sample collection and testing for
paternity evaluation for Daquadrin and
defendant.
Exhibit 2 - Client Authorization form for
blood sample collection and testing for
paternity evaluation for Forbes.
Exhibit 3 _ Affidavits of Receipt of Genetic
Specimens Chain of Custody for Daquadrin and
defendant.
Exhibit 4 - Affidavits of Receipt of Genetic
Specimens Chain of Custody for Forbes.
Exhibit 5 - Chain of Custody Verification for
collected and packaged specimens for Daquadrin
and defendant.
Exhibit 6 - DNA test results.
Over defendant's objections all of these documents were admitted
into evidence.
The jury returned a unanimous verdict adjudging defendant to
be Daquadrin's father. The trial court entered a judgment in
accordance with this verdict. It is from this judgment that
defendant appeals.
Defendant assigns error to the trial court (I) admitting
plaintiff's Exhibits 1_6 relating to the DNA testing procedure into
evidence; (II) admitting opinion testimony by an expert witness
regarding Exhibits 1_6; (III) admitting into evidence the DNA test
results; and (IV) denying defendant's motions for directed verdict
and judgment not withstanding the jury verdict. The dispositive issue on appeal is whether a proper chain of
custody was established to admit the DNA test results. Both
parties assert that the DNA test was not court-ordered, and that
Lombroia v. Peek, 107 N.C. App. 745, 421 S.E.2d 784 (1992), is the
controlling authority. Plaintiff argues that it “met the
requirements of Lombroia in laying the foundation for admission of
Exhibits No. 1_6.” Defendant argues that under Lombroia, “[i]t was
error to admit these exhibits without requiring testimony from the
people involved in the collection of the sample and who performed
these tests.” We agree with defendant.
In instances in which the court orders DNA testing, N.C. Gen.
Stat. § 8-50.1(b1) provides a less formal procedure for admitting
DNA test results into evidence. The statute in pertinent part
provides as follows:
Verified documentary evidence of the chain of
custody of the blood specimens obtained
pursuant to this subsection shall be competent
evidence to establish the chain of custody.
Any party objecting to or contesting the
procedures or results of the blood or genetic
marker tests shall file with the court written
objections setting forth the basis for the
objections and shall serve copies thereof upon
all other parties not less than 10 days prior
to any hearing at which the results may be
introduced into evidence. . . . If no
objections are filed within the time and
manner prescribed, the test results are
admissible as evidence of paternity without
the need for foundation testimony or other
proof of authenticity or accuracy.
N.C. Gen. Stat. § 8-50.1(b1) (2003) (emphasis added). If the blood
test is not ordered by the trial court upon motion by a party, the
standard in N.C. Gen. Stat. § 8-50.1(b1) will not apply and the
party seeking to admit the test must present independent evidenceof the chain of custody. See Catawba County ex rel Kenworthy v.
Khatod, 125 N.C. App. 131, 135, 479 S.E.2d 270, 272 (1997) (“[I]f
the test report at issue did not meet the prerequisites for
admission under G.S. § 8-50.l(b1), the rule of Lombroia requiring
independent evidence of the chain of custody governs . . . .”).
In Lombroia this Court held that
[i]n order to establish the relevancy of blood
test results, plaintiff is required to 'lay a
foundation . . . by way of expert testimony
explaining the way the test is conducted,
attesting its scientific reliability, and
vouching for its correct administration in
[this] particular case.' . . . '[T]he
substance analyzed must be accurately
identified . . . [by proving] a chain of
custody to insure that the substance came from
the source claimed and that its condition was
unchanged.'
107 N.C. App. at 749, 421 S.E.2d at 786, quoting FCX, Inc. v.
Caudill, 85 N.C. App. 272, 276, 354 S.E.2d 767, 771 (1987).
We also look to Rockingham County DSS ex rel Shaffer v.
Shaffer which presents facts similar to the case at bar. In
Shaffer the expert witness based his testimony “on 'Paternity
Evaluation Reports,' showing the genetic testing results of tests
performed by [the laboratory], and 'Client Authorizations' showing
that the blood tested had been drawn from the parties, packaged,
sealed and received unopened by [the laboratory].” 126 N.C. App.
197, 198-99, 484 S.E.2d 415, 416 (1997). Because the doctor had
neither drawn the blood nor had any personal knowledge of the blood
sample's chain of custody, this Court held that
[p]laintiff therefore failed to establish the
relevancy of the blood test results under
either section 8-50.1(b1) or Lombroia and it
was therefore error to admit the blood testsand allow [the doctor] to express an opinion
based on the blood test results.
Shaffer, 126 N.C. App. at 201, 484 S.E.2d at 417, see also
Lombroia, 107 N.C. App. at 749, 421 S.E.2d at 787. The chain of
custody can be established by sworn affidavits, see Shaffer, 126
N.C. App. at 199, 484 S.E.2d at 416-17, or witness testimony from
the people involved in the various stages of specimen collection
and handling. Lombroia, 107 N.C. App. at 749, 421 S.E.2d at 786.
In this case as in Shaffer, the expert witness had no personal
knowledge of the DNA sample collections or the samples' chain of
custody. Thus, to establish a foundation for the DNA test results'
admissibility, plaintiff was required to present affidavits or
witness testimony for each link in the chain of custody for each
DNA sample.
To lay the foundation for Forbes's DNA sample, plaintiff
presented witness testimony from the person who collected, sealed
and mailed the sample to the laboratory. Plaintiff also presented
an affidavit by the person who received the specimen at the
laboratory for testing stating that the specimen did not appear to
have been tampered with. We do not consider this to be sufficient
evidence to establish the chain of custody. In addition to these
two affidavits, plaintiff should have also provided testimony or an
affidavit from the individual who performed the DNA test to confirm
that the specimen was transferred within the laboratory without
being disturbed. Cf. State v. Britt, 291 N.C. 528, 533, 231 S.E.2d
644, 648 (1977), quoting Joyner v. Utterback, 196 Iowa 1040, 195
N.W. 594 (1923) (“It is generally held that the party offering such
specimen is required to establish, at least as far as practicable,a complete chain of evidence, tracing possession from the time the
specimen is taken from the human body to the final custodian by
whom it is analyzed.”) Thus, we conclude that the chain of custody
was not properly established for Forbes's DNA sample.
We are also not satisfied with the foundation for the DNA
samples belonging to Daquadrin and defendant. The only evidence
that samples were taken from defendant and Daquadrin is the client
authorization form. However, this form is not verified as an
affidavit. Additionally, plaintiff did not present testimony from
the person who collected these samples. Plaintiff provided two
affidavits that the samples were received by the laboratory and did
not appear to have been tampered with, but this evidence is not
sufficient to establish an entire chain of custody. Therefore, Dr.
Stuhlmiller's testimony regarding the chain of custody of the
sample of defendant and Daquadrin is unverified and should not have
been admitted into evidence by the trial court.
Because the chain of custody for the DNA samples was not
complete, we conclude that a proper foundation was not established
for the admission of the DNA test results. Thus, the trial court
improperly admitted the test results. Therefore, we vacate the
underlying judgment and remand this case for a new trial.
Accordingly, it is not necessary to address defendant's remaining
assignments of error.
Vacated and remanded.
Judges WYNN and ELMORE concur.
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