This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-95-1921

State of Minnesota,

Respondent,

vs.

Vidale Lee Whitson,

Appellant.

Filed June 4, 1996

Affirmed

Schumacher, Judge

Hennepin County District Court

File No. 93008756

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Michael O. Freeman, Hennepin County Attorney, Gayle C. Hendley-Zappia, Assistant County Attorney, Jean Burdorf, Staff Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

John M. Stuart, State Public Defender, Mark F. Anderson Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Lansing, Presiding Judge, Schumacher, Judge, and Short, Judge.

U N P U B L I S H E D O P I N I O N

SCHUMACHER, Judge

Vidale Lee Whitson appeals from his conviction for second- and third-degree controlled substance possession, arguing the trial court erred in refusing to declare a mistrial after he struck his attorney in front of the jury and in admitting evidence with inadequate proof of chain of custody. We affirm.

FACTS

On February 5, 1993, Whitson was arrested under a fugitive arrest warrant. During a pat search incident to the arrest, the police found a plastic baggie and a film canister with what they suspected was crack and powder cocaine. They also found a baggie with what appeared to be marijuana. The suspected contraband was seized.

According to the initial police inventory, there were 19.6 grams of suspected cocaine powder in the film canister, 9.7 grams of suspected crack cocaine in one baggie, and 2.5 grams of suspected marijuana in the other baggie. The contraband was stored in the property room at the downtown police station in City Hall.

On February 8, 1993, the suspected drugs were taken to a Minneapolis city chemist for analysis. The chemist reported that the film canister contained 5 packets containing 5.1 grams of crack cocaine and the baggie contained 12.7 grams of a mixture of cocaine hydrochloride and Inositol, a substance used to dilute cocaine powder to increase profits. The other baggie contained a small amount of marijuana.

Whitson was charged with second- and third-degree possession of a controlled substance. Trial was postponed for more than two years due to two separate Rule 20.01 competency examinations. Whitson was incarcerated during this time on an unrelated offense.

During trial, Whitson requested that his attorney, Jerry Patterson, move for a continuance because Whitson had supposedly made arrangements for a private attorney to represent him. When Patterson declined to make the motion until he had concluded cross-examination of a witness, Whitson became angry and punched Patterson in his left eye in full view of the jury. As Whitson punched Patterson, he said, "You do the f*** what I tell you to do." When the trial judge ordered the bailiff to take Whitson into custody, Whitson said, "Mother f***er to you, too. You can talk about that in my man's chamber." Whitson was removed from the courtroom and proceedings were recessed for the day.

When trial resumed the next day, Rick Trachy appeared as a substitute public defender for Patterson. Trachy's request for a new Rule 20.01 examination was denied. The trial court also denied motions for a mistrial based on the jury's possible prejudiced reaction to Whitson's actions and the admission of the drugs over a foundational chain-of-custody objection. Whitson did not testify and the defense called no other witnesses. The jury returned a verdict of guilty.

Whitson was sentenced to 108 months with credit given for his two years already served. The trial court also sentenced Whitson to two concurrent six-month sentences to be served after his drug sentence for contempt of court for striking Patterson and swearing at the court. The trial court denied Whitson's objection that the contempt charges should be brought in a separate complaint. Whitson appeals.

D E C I S I O N

1. Whitson argues the trial court erred in refusing to declare a mistrial after he struck his attorney in front of the jury. We disagree. In Minnesota, the law is clear that a defendant's negative behavior will not be grounds for a mistrial. State v. Ming Sen Shiue, 326 N.W.2d 648, 654 (Minn. 1982). Whitson cannot benefit from his misconduct. Moreover, the trial court did everything to ensure a fair trial. The trial judge removed the jury from the room after the event and twice instructed the jury that they should not consider the assault in their deliberations.

2. Whitson argues the trial court erred in admitting evidence of the cocaine because there was inadequate chain of custody to prove that the specimen seized was the same as was tested at the crime laboratory. We disagree.

Generally, chain-of-custody issues are left to the sound discretion of the trial court. State v. Johnson, 307 Minn. 501, 504, 239 N.W.2d 239, 242 (1976). Proper foundation requires that there be evidence "sufficient to support a finding that the matter in question is what its proponent claims." Minn. R. Evid. 901(a). Chain of custody requires

"testimony of continuous possession by each individual having possession, together with testimony by each that the object remained in substantially the same condition during its presence in his posession."

State v. Hager, 325 N.W.2d 43, 44 (Minn. 1982) (quoting M. Graham, Evidence and Trial Advocacy Workshop: Relevance and Exclusion of Relevant Evidence--Real Evidence, 18 Crim. L. Bull. 241, 243-46 (1982)).

Admissibility should not depend on the prosecution negativing all possibility of tampering or substitution, but rather only that it is reasonably probable that tampering or substitution did not occur. Contrary speculation may well affect the weight of the evidence accorded it by the factfinder but does not affect its admissibility.

Johnson, 307 Minn. at 505, 239 N.W.2d at 242.

Here, there was a discrepency between the containers and the weight of the seized drugs. The initial weighing by the officers was 19.6 grams of powder cocaine in the film canister and 9.7 grams of crack cocaine in the baggie. The police chemist reported 5.1 grams of crack cocaine in the canister and 12.7 grams of mixed cocaine in the baggie.

While the weights differed, they were still above the statutory limits for second and third-degree possession. See Minn. Stat. ' 152.022, subds. 2(1), 3(b) (1992) (six grams); Minn. Stat. ' 152.023, subds. 2(1), 3(b) (1992) (three grams). Each witness in the chain of custody testified they did nothing substantial to alter the narcotics. Defense counsel cross-examined each witness about the discrepancy, and none could explain the difference. Defense counsel also argued the discrepancy to the jury at closing argument. Any possible discrepancy went to the weight of the evidence and not its admissibility. See McDonald v. State, 351 N.W.2d 658, 660 (Minn. App. 1984) (presence of only four out of ten pills following testing went to weight of evidence), review denied (Minn. Oct. 16, 1984).

Finally, we have considered the issues raised in appellant's pro se brief and find them to be without merit.

Affirmed.