EX PARTE DEPT. OF HEALTH & ENV. CONTROL

• Decision Date: 17 June 2002
• Docket Number: No. 25486.,25486.
• Court: South Carolina Supreme Court
• Parties: Ex parte The DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL, Petitioner, In re The State, Respondent, v. John Doe, Defendant.

350 S.C. 243

565 S.E.2d 293

Ex parte The DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL, Petitioner,

In re The State, Respondent, v. John Doe, Defendant.

No. 25486.

Supreme Court of South Carolina.

Heard March 6, 2002.

Decided June 17, 2002.

E. Katherine Wells and Cheryl H. Bullard, both of South Carolina Department of Health and Environmental Control, of Columbia, for petitioner.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Robert E. Bogan, all of Columbia; and Solicitor Druanne D. White, of Anderson, for respondent. Robert A. Gamble, of Anderson, for defendant.

Chief Justice TOAL.

This Court granted the Department of Health and Environmental Control's ("DHEC") petition for certiorari to review the Court of Appeals' decision in Ex Parte: the Dep't of Health and Envtl. Control, In re: State v. John Doe, 339 S.C. 546, 529 S.E.2d 290 (Ct.App.2000)

("State v. Doe").

FACTUAL/PROCEDURAL BACKGROUND

In June 1997, John Doe ("Doe") was indicted by the Anderson County grand jury for criminal sexual conduct with a minor. The State also sought to prove Doe had knowingly exposed his victim to the Human Immunodeficiency Virus ("HIV") in violation of S.C.Code Ann. § 44-29-145 (2002).¹ On October 28, 1997, the State filed a motion seeking to compel DHEC to release all of Doe's medical records pertaining to his HIV status, including the names and addresses of any possible chain of custody witnesses and Doe's acknowledgment of counseling form. After a hearing in November 1997, the circuit court ordered the release of the following information: (1) Doe's HIV test results; (2) the names of and access to all possible chain of custody witnesses; and (3) Doe's acknowledgment of counseling form. DHEC appealed those portions of the order directing it to provide the names and addresses of potential witnesses to establish a chain of custody and to release Doe's acknowledgment of counseling form.

The Court of Appeals initially dismissed DHEC's appeal as interlocutory, but then reversed its decision after DHEC's petition for rehearing. Briefs were filed and oral arguments were held on February 9, 2000. The Court of Appeals affirmed, as modified, the circuit court decision. State v. Doe, 339 S.C. 546, 529 S.E.2d 290. It reversed the circuit court to the extent that it required DHEC to disclose Doe's counseling records, but otherwise affirmed the circuit court's order directing DHEC to release the names and addresses of all possible chain of custody witnesses.

DHEC raises the following issues on appeal:

I. Does the exception to the rule against hearsay contained in Rule 803(6) of the South Carolina Rules of Evidence ("SCRE"), allow Doe's HIV test results to be admitted into evidence as business records without the requirement of establishing a chain of custody?

II. May the State obtain names of chain of custody witnesses and DHEC counseling records relating to HIV test results in order to establish Doe knew he was HIV positive as required under S.C.Code Ann. § 44-29-145 (2002), the statute imposing criminal sanctions for knowingly exposing another to HIV?

LAW/ANALYSIS

I. Business Records Exception

The State argues it is required by the SCRE to establish a chain of custody to admit Doe's HIV blood test at trial. We disagree. In the alternative, DHEC contends Doe's HIV test can be admitted at trial under the business records exception to the hearsay rule, Rule 803(6), SCRE. We agree.

There is an exception to the rule requiring DHEC to maintain strict confidentiality of its sexually transmitted disease records that all parties agree applies in this case. Section 44-29-135(c) of the South Carolina Code authorizes the release of "medical or epidemiological information to the extent necessary to enforce the provisions of this chapter and related regulations concerning the control and treatment of sexually transmitted disease...."² In this case, the State sought release of Doe's HIV test results and acknowledgment of counseling forms in order to prosecute him under section 44-29-145 of this chapter, for knowingly exposing his victim to HIV.

As the Court of Appeals noted, the legislature did provide confidentiality safeguards for disclosure of this information. Section 44-29-136(A)³ requires the solicitor or state law enforcement agency to obtain a court order that the request for such information is valid and that there is a compelling need for the information. The authorities sought and received such an order in this case, and DHEC does not challenge the existence of a compelling need for the test results. However, DHEC does challenge that a chain of custody must be established for the test results to be admissible.

This Court has consistently required a chain of custody in criminal prosecutions to prove the samples analyzed are in fact the defendant's. In prosecutions for driving under the influence ("DUI"), "when moving to admit blood alcohol test results, the State must prove a chain of custody of the blood sample from the time its [sic] drawn until it is tested." State v. Smith, 326 S.C. 39, 41, 482 S.E.2d 777, 778 (1997). In another DUI prosecution, this Court found the trial court abused its discretion in admitting the results of a blood alcohol test where the identity of those who sealed, labeled, and transported the blood was not established. State v. Cribb, 310 S.C. 518, 426 S.E.2d 306 (1992). Similarly, in a wrongful death civil action resulting from a car wreck, the Court of Appeals required a chain of custody for the driver's urinalysis, taken for purposes of showing the defendant had marijuana and cocaine in his system at the time of the accident. Stevens v. Allen, 336 S.C. 439, 520 S.E.2d 625 (Ct.App.1999).

Although our precedent requires a chain of custody for blood and urine samples taken at the time of an accident or other crime for purposes of prosecution, HIV test results present a different set of circumstances. The DUI cases cited above involve time-sensitive tests taken at the time of an arrest or an accident that cannot be replicated outside of that time frame. See Cribb; Stevens. Although the blood drawn from Cribb was not drawn initially for prosecutorial purposes, it was used for those purposes ultimately, and, therefore, required a chain of custody because Cribb could not re-test his blood alcohol level later and get an accurate result. HIV test results, on the other hand, can be confirmed or proved false by re-testing at a later date, as HIV is a permanent condition, unlike the level of alcohol or drugs in the bloodstream. Based on this distinction, we find the admission of HIV test results is not controlled by the line of cases discussed above dealing with drug and alcohol tests.

Although our Court has not considered whether a chain of custody is necessary to admit evidence of HIV tests for prosecutions under section 44-29-145, courts in other jurisdictions have addressed the issue. The Supreme Court of Missouri held HIV blood tests admissible without a chain of custody under the business records exception in a prosecution for HIV endangerment. State v. Mahan, 971 S.W.2d 307 (Mo.1998). Acknowledging that a chain of custody for blood tests is required in most situations, the Missouri court found certain features of HIV testing to be unique, and differentiated it from other cases in which blood samples are taken from a person at the scene of a crime. Mahan. In Mahan, the HIV tests were conducted before any charges were filed against the defendant. Id. As such, the Missouri court found there was no incentive for anyone to alter a blood sample or to favor a positive over a negative result, as there may be when blood samples are taken in the course of a criminal investigation. Id. In addition, the Missouri court noted there were other indicia of reliability, such as an admission by the defendant that he was HIV positive. Id.

DHEC argues the case at hand is analogous to Mahan, and contends HIV test results are admissible, without a chain of custody, under our business records exception, Rule 803(6), SCRE. We agree that the procedure for admitting business records would afford sufficient indicia of reliability to admit HIV test results without a chain of custody. Rule 803(6), SCRE, provides that memorandum, reports, records, etc. in any form, of acts, events, conditions, or diagnoses, are admissible as longs as they are (1) prepared near the time of the event recorded; (2) prepared by someone with or from information transmitted by a person with knowledge; (3) prepared in the regular course of business; (4) identified by a qualified witness who can testify regarding the mode of preparation of the record; and (5) found to be trustworthy by the court. Rule 803(6), SCRE; S.C.Code Ann. § 19-5-510 (Supp.2001).

Medical records are admitted routinely as business records. Ellis v. Oliver, 323 S.C. 121, 473 S.E.2d 793 (1996); Benchoff v. Morgan, 302 S.C. 116, 394 S.E.2d 19 (Ct.App.1990); Love v. Garcia, 634 So.2d 158 (Fla.1994). The trustworthiness of medical records is presumed, based on the fact that the test is relied on for diagnosis and treatment. See Love v. Garcia. DHEC cites opinions from several other jurisdictions that have admitted laboratory test results as business records, including blood tests, based on the same rationale: if it is sufficiently trustworthy to be relied upon for medical treatment, it is sufficiently trustworthy to be admitted as a business record. See Baber v. State, 775 So.2d 258 (Fla.2000)

(admitting blood test taken for medical purposes as business record in criminal case); State v. Garlick, 313 Md. 209, 545 A.2d 27 (1988) (admitting hospital laboratory test as business record without extensive foundation when the blood sample was not taken for purposes of litigation, the test was performed in a neutral setting (not a police lab), and no discrepancies were apparent on the face of the record).

We...