Gibson v. State

• Decision Date: 11 February 1988
• Docket Number: No. 55A04-8609-CR-296,55A04-8609-CR-296
• Citation: 518 N.E.2d 1132
• Parties: Ronald I. GIBSON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 1132

518 N.E.2d 1132

Ronald I. GIBSON, Appellant, v. STATE of Indiana, Appellee.

No. 55A04-8609-CR-296.

Court of Appeals of Indiana,

Fourth District.

Feb. 11, 1988.

Stephen M. Sherman, Sherman & Johnson, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.

MILLER, Presiding Judge.

As a result of a single vehicle automobile accident in which his nephew's arm was dismembered, Ronald Gibson was charged with violations of IND.CODE 9-11-2-2, operating a motor vehicle while intoxicated within five years of a prior conviction for operating while intoxicated; I.C. 9-11-2-4, operating while intoxicated causing serious bodily injury; and I.C. 35-42-2-2(a), criminal

                recklessness with a motor vehicle.  The case was tried to a jury, which found Gibson guilty of the first two charges, but acquitted him of criminal recklessness.  The trial court sentenced Gibson to a term of four years imprisonment and a fine of $10,000 for the violation of I.C. 9-11-2-2, and sentenced him to a consecutive term of four years and $10,000 for the violation of I.C. 9-11-2-4.  Additionally, the court suspended Gibson's license "forever."   Gibson appeals, alleging the trial court erred:  1) in not granting a hearing on his motion for change of venue;  2) in admitting evidence despite a break in the chain of custody;  and 3) in admitting evidence obtained in a search conducted without probable cause.  We reverse on the grounds stated in Gibson's first issue, but we address his second and third issues because they are likely to arise on remand.  Gibson raises further issues which, because we reverse and because they might not arise on remand, we decline to address
                

FACTS

At approximately 9:30 p.m. on January 11, 1986, Ronald Gibson lost control of his truck as he attempted to make a left turn at the intersection of Main Street and Indianapolis Road in Mooresville. The truck, which was travelling at more than the 40 mile-per-hour posted speed limit, slammed into some metal poles. The collision severed the right arm of Ricky Randolph, Gibson's nephew, who was sitting on the passenger side of the truck.

Judith and Brian Grebel, two employees of the Wake Up gasoline station, witnessed the accident and reported it to the police. Sergeant Larry Mason of the Mooresville Police Department responded to the call. When he arrived within minutes of the accident, he observed Gibson, apparently unconscious, lying on the floor of the truck, his feet under the brake pedal and his head near the passenger side door. Randolph was lying on the truck's bench seat, with his head near the driver's side door and his feet near the passenger side door. He was holding his shoulder and calling for help. Randolph's right arm was lying outside the truck. Mason attempted to aid Gibson and Randolph, but could not because the doors of the truck were stuck.

Within minutes emergency medical personnel arrived. One of them, Kenneth Burwick, smelled the strong odor of alcohol on Gibson's breath, and he informed Mason. The emergency personnel succeeded in extracting Gibson and Randolph from the truck. Gibson was taken to Methodist Hospital in Indianapolis by helicopter.

Mason had seen an empty Budweiser bottle in the truck. Because of the bottle and Burwick's statement that Gibson smelled of alcohol, Mason decided to get a blood alcohol sample. He went to Methodist and, after informing the director of security, Clement Bruce Many, that he wanted the hospital to do a blood alcohol content (BAC) test on Gibson. Mason and Many went to the emergency room where Gibson was being treated.

In the emergency room, Margie Klink, a registered nurse, was assisting in Gibson's treatment. When she asked him, in the course of treatment, if he had been drinking, he replied that he consumed between a twelve pack and a case of beer. Klink drew approximately six vials of blood from Gibson's arm. She handed one vial to Amy Moore, another nurse. Moore, accompanied by Mason and Many, took this blood sample, which was marked with Gibson's name and patient number, to the emergency room satellite laboratory. When she arrived at the lab, she logged in the sample and gave it to the technician on duty, Richard Weitzel. Weitzel, accompanied by Mason and Many, took the sample, along with two other blood samples from Gibson, to the main lab. There, Weitzel gave the sample to Sheryl McNaughton, a medical technologist. She performed a BAC test which revealed Gibson's blood contained .257 per cent alcohol by weight.

Further investigation revealed Gibson had begun to drink at about 5:00 p.m., when his carpentry crew finished working for the day. He continued to drink at two bars in Mooresville until shortly before the accident. There was a conflict in the evidence as to how many beers Gibson had to Before he was brought to trial, Gibson made a verified motion for change of venue from the county under Ind. Rules of Procedure, Criminal Rule 12. He filed this motion, which alleged he could not get a fair trial in the county because of prejudicial news coverage, more than ten days after he entered his plea of innocent. He did, however, allege that his injuries and medical treatment prevented him from learning of the allegedly prejudical material until after the expiration of the 10 day period. The trial court denied the motion without a hearing.

drink, but at least one witness testified she saw him drink at least six or seven beers while he was in one of the bars.

DECISION

Gibson brings several issues for our review. We reverse on one of these issues, but address two others because they are likely to arise on remand. These issues are:

1.) Did the trial court err by failing to hold a hearing on Gibson's motion for a change of venue?

2.) Did the court err in finding the State established an adequate chain of custody for Gibson's blood sample?

3.) Did the court err in finding Sergeant Mason had probable cause to order a BAC test be performed on Gibson?

ISSUE I. Change of Venue

Motions for change of venue in criminal trials are governed by C.R. 12, which provides in part:

"In criminal actions and proceedings to enforce a statute defining an infraction, a motion for change of judge or change of venue from the county shall be verified or accompanied by an affidavit signed by the criminal defendant or the prosecuting attorney setting forth facts in support of the statutory basis or bases for the change. Any opposing party shall have the right to file counter affidavits within ten (10) days and after a hearing on the motion, the ruling of the court may be reviewed only for abuse of discretion.

"In any criminal action, no change of judge or change of venue from the county shall be granted except within the time provided.

"An application for change of judge or change of venue from the county shall be filed within ten (10) days after a plea of not guilty, or if a date less than ten (10) days from the date of said plea, the case is set for trial, the application shall be filed within five (5) days after setting the case for trial provided, that where a cause is remanded for a new trial by the Supreme Court, such application must be filed not later than ten (10) days after the party has knowledge that the cause is ready to be set for trial.

"Provided, however, that if the applicant first obtains knowledge of the cause for change of venue from the judge or from the county after the time above limited, he may file the application, which shall be verified by the party himself, particularly alleging when the cause was first discovered, how it was discovered, the facts showing the cause for change, and why such cause could not have been discovered before by the exercise of due diligence. Any opposing party shall have the right to file counter-affidavits on such issue within ten (10) days, and after a hearing on the motion, the ruling of the court may be reviewed only for abuse of discretion." (emphasis added)

In his verified motion, Gibson specifically alleged that he was unable to file the change of venue motion within the 10 days after he entered his not guilty plea because he was unaware of the prejudicial material and unable to communicate with his attorney because of his injuries. He also alleged the material, a newspaper article and television news report, contained inflammatory statements by three people: Betsy Greene, the deputy prosecutor assigned to his case, Larry Mason, and Shirley Lawrence, the mother of the victim in an earlier fatal crash involving an intoxicated Gibson. Gibson alleged the three stated he had gotten off easy in his earlier conviction, and that the judge in the earlier case had failed to see justice done.

The State did not respond to the allegations. The trial court, despite the State's failure to respond, denied Gibson's motion without a hearing.

By the express language of C.R. 12, Gibson should have been afforded a hearing in order to introduce evidence on the issue of whether his motion was timely filed as well as the issue of whether the news reports had so prejudiced the community as to have rendered it impossible for him to have received a fair trial. In Hanrahan v. State (1968), 251 Ind. 325, 241 N.E.2d 143, our supreme court, construing the predecessor to C.R. 12, held that it was an abuse of discretion for a trial court to deny a motion for change of venue without holding a hearing. In a case concerning change of venue from a judge--which is also governed by the provisions of C.R. 12--this...