Phillips was convicted of the possession of cocaine, and the Court of Appeals subsequently affirmed his conviction.1 Phillips subsequently filed a petition for habeas corpus relief, contending, among other things, that his appellate counsel was ineffective for failing to contend on appeal that the State failed to establish the chain of custody of the substance identified at trial as cocaine. The habeas court denied the petition, and we granted Phillips’s application for certificate of probable cause to appeal. For the reasons that follow, we reverse. 1. When a habeas petitioner contends that his appellate counsel provided deficient representation in failing to raise an issue on appeal, “the controlling principle is ‘whether appellate counsel’s decision was a reasonable tactical move which any competent attorney in the same situation would have made.’ “2 Moreover, “to establish the prejudice component of an ineffective assistance of appellate counsel claim, the defendant must show ‘a reasonable probability that the outcome of the appeal would have been different.’ “3
Phillips contends that appellate counsel’s performance was deficient in failing to raise a claim that the State failed to establish the chain of custody for the substance that a crime lab expert identified at trial as cocaine. To establish the chain of custody of a fungible substance like cocaine, the State must establish the “identity and integrity” of the cocaine.4 The proponent must show that the cocaine tested at the crime lab, for example, is the same as that seized from the accused. The proponent also must show that the drugs, blood samples, and so forth were neither tampered with nor corrupted during their travels from crime scene to evidence room to laboratory to courtroom.5 Proving the chain of custody for fungible evidence “means accounting for the safekeeping and transportation of the evidence from the seizure to trial.”6 In contrast to fungible evidence, if a piece of tangible evidence is a “distinct item that could be recognized from its features from someone who saw it before, that person’s testimony identifying the item is sufficient” to authenticate it.7
