Campbell v. State

• Decision Date: 09 October 1975
• Docket Number: No. 51313,No. 3,51313,3
• Citation: 136 Ga.App. 338,221 S.E.2d 212
• Parties: D. W. CAMPBELL v. The STATE
• Court: Georgia Court of Appeals

Page 212

221 S.E.2d 212

136 Ga.App. 338

D. W. CAMPBELL v. The STATE.

No. 51313.

Court of Appeals of Georgia, Division No. 3.

Oct. 9, 1975.

Rehearing Denied Oct. 24, 1975.

Syllabus by the Court

The appellant, defendant below, was tried and convicted of homicide by vehicle, operating a motor vehicle with ability impaired by alcohol or drugs and failure to yield the right of way and causing a collision. He appeals from these convictions.

Greene, Smith & Traver, H. Darrell Greene, Morgan McNeel Robertson, Marietta, for appellant.

Paul W. Carden, Sol., Herbert Rivers, Asst. Sol., Marietta, for appellee.

DEEN, Presiding Judge.

1. Appellant contends in his first enumeration of error that his motion for directed verdict should properly have been granted because the arresting officer was not qualified under Code Ann. § 92A-2108. Code Ann. § 92A-2115 makes 'any proceeding under' an arrest by unqualified officers null and void. We have considered and rejected this same argument in Rogers v. State, 133 Ga.App. 513, 211 S.E.2d 373, wherein it was held: 'The indictment, trial, and conviction of the defendants was not a 'proceeding under' an arrest. . . . It is inconceivable to us that the legislature intended to absolve a man of all guilt of a crime charged merely because his arrest was illegal, as contended by the appellant, and we will not so hold.' Appellant urges us to 'reconsider' our original position in Rogers. Our position was reconsidered in Hunt v. State, 134 Ga.App. 761, 216 S.E.2d 354. We find nothing in appellant's argument to persuade us that Rogers and Hunt were decided wrongly and hereby reaffirm their holdings.

2. Appellant urges error was committed when the court refused to strike the testimony of the witness who drew his blood for tests. Under Code Ann. § 68A-902.1(a)(2) only a physician, registered nurse or other qualified person may withdraw blood for the purpose of determining alcohol content. Since there was no showing of the witness' qualifications as a registered nurse under Code Ann. § 84-1008, appellant argues that the state failed to carry its burden of proving the witness was qualified to draw blood. The record reveals that the witness testified that she was a registered nurse, went to school in New York, had worked in Cobb General Hospital for two and one-half years and had given approximately one hundred blood tests during her tenure as a registered nurse. She was never cross examined about her qualifications. The witness testified under oath that she was a registered nurse and gave statements as to her experience; there was no evidence to the contrary. Code Ann. § 38-121 provides in part: 'The testimony of a single witness is generally sufficient to establish a fact.' We conclude that the facts as presented qualify the witness as a registered nurse or a qualified person for the withdrawal of blood under Code Ann. § 68A-902.1(a)(2).

3. Appellant's third enumeration of error goes to the admission into evidence of blood test results showing him to have been intoxicated at the time of the accident. It is urged that there was an insufficient chain of custody established and that in its 'desultory peregrinations' the specimen may have been misplaced, lost or substituted. 'When a test has been performed on an item of alleged evidence linking a defendant to a crime, there are at least three considerations involved in the identification of the item: (1) is it properly identified as having actually come from the defendant? (2) is it properly identified as the item actually tested? (3) where the item is one of a class of fungible items, e.g. blood samples, is an adequate chain of custody presented to preserve its identity?' Terry v. State, 130 Ga.App. 655, 656, 204 S.E.2d 372, 373. In Pittman v. State, 110 Ga.App. 625, 139 S.E.2d 507, it was held that where the evidence does not show the following, a blood analysis is properly excluded: by whom the sample was taken; how the container was labeled; by whom or by what means it was transmitted to the laboratory; when and by whom it was received. In the case sub judice the evidence shows that the blood sample was taken by a registered nurse in the presence of the arresting officer; the blood sample was placed in a prepared container, along with the appellant's signed consent form, and properly addressed to the State Crime Lab; the container was sent by the arresting officer through the mail to the State Crime Lab; the container and sealed speciments arrived five days later and were received by the drug analyst who eventually conducted the tests. We believe this to satisfy the first two elements of identification as presented in Terry. The thrust of appellant's argument goes to the chain of custody of the samples after they reached the State Laboratory. The testimony in this regard was that the sealed container was delivered to a basket in a hallway, removed by the state analyst, opened and the specimens removed, presented to a secretary who typed up an information sheet and then relinquished control over them to the analyst who in turn deposited them in a refrigerator for later testing. "No evidence was offered by the defense suggesting any laxity in the custodial or laboratory procedures of the Government, or any reason why the exhibits should be regarded as in any way untrustworthy. . . .' 'The burden is upon the party relying upon expert testimony to prove the identity of the object upon which such testimony is based. However, the practicalities of proof do not require such party to negative all possibility of substitution or tampering. He need only to establish that it is reasonably certain that substitution, alteration, or tampering did not occur. . . . In such circumstances it was proper for the trial judge to admit the evidence and let what doubt, if any, regarding its identity, go to its weight." Interstate Life & Accident Ins. Co. v. Whitlock, 112 Ga.App. 212, 224, 144 S.E.2d 532, 540. 'Factors to be considered in making a determination of whether physical objects connected with commission of a crime are substantially in the same condition as when the crime was committed, so that they can be admitted into evidence, (are) the nature of the article, circumstances surrounding its preservation and custody, and the likelihood of intermeddlers tampering with it. If upon consideration of such factors the trial judge is satisfied that in reasonable probability, the article has not been changed in important respects, he may permit its introduction into evidence.' Epps v. State, 134 Ga.App. 429, 433, 214 S.E.2d 703, 707. In light of the sealed nature of the container and the lack of any evidence of tampering, we are convinced that the chain of custody is unbroken up to its opening by the state analyst and the typing of the information sheet by her secretary. The evidence thereafter shows nothing but a routine 'peregrination' of the samples through the steps of chemical analysis without any showing by the appellant of other than...