Kerr v. State, A92A1248

• Decision Date: 08 September 1992
• Docket Number: No. A92A1248,A92A1248
• Parties: KERR v. The STATE.
• Court: Georgia Court of Appeals

Page 276

423 S.E.2d 276

205 Ga.App. 624

KERR v. The STATE.

No. A92A1248.

Court of Appeals of Georgia.

Sept. 8, 1992.

Reconsideration Denied Sept. 29, 1992.

Certiorari Denied Jan. 7, 1993.

James E. Hardy II, Cumming, for appellant.

Garry T. Moss, Dist. Atty., C. David Turk III, Asst. Dist. Atty., for appellee.

BEASLEY, Judge.

Kerr was convicted of violating the Controlled Substances Act by possession of cocaine (OCGA § 16-13-30), driving under the combined influence of marijuana and cocaine (OCGA § 40-6-391(a)(3)), and operating a motor vehicle without effective insurance (OCGA § 33-34-12(b)).

Early one Saturday morning, Deputy Sheriff Freeman was on patrol and encountered a car driven by Kerr. The car's headlights were at high-beam, and Kerr did not dim them although the drivers of oncoming vehicles were flashing their bright lights. He was also driving slower than the normal flow of traffic. Freeman followed Kerr and observed him wait at a stop sign for approximately 20 to 30 seconds before moving.

For these reasons, Freeman stopped Kerr. Kerr said he had no insurance. Freeman noticed the odor of alcohol on Kerr's breath and that he was under the legal drinking age. After being given the Miranda warnings, Kerr stated he had consumed two beers.

Freeman asked Kerr to submit to a series of field sobriety tests. During the A-B-C test, Kerr omitted a couple of letters and misplaced others. When Freeman asked Kerr to take nine steps forward placing the heel of his front foot to the toe of his back foot and keeping his hands by his side, he wobbled as he went and kept steadying himself by raising his hands. When Freeman, in conducting the Horizontal Gaze Nystagmus test, asked Kerr to hold his head still and watch a pen which was being moved horizontally about six to eight inches from the tip of his nose, Kerr's eyeballs exhibited spasmodic motions. Kerr had glassy eyes, was unsteady on his feet, and was very inattentive. Freeman reached the opinion that appellant was under the influence of alcohol or drugs to the extent that it was less safe for him to operate a motor vehicle.

Kerr agreed to take a breath test, and he registered .03 grams of alcohol in his system. Freeman believed Kerr was more intoxicated than was registered and he asked Kerr to take a urine test. Kerr complied. Freeman sealed the lid of the specimen jar with evidence tape and placed the jar in a sealed plastic bag. The evidence lockers in the sheriff's office were full, so Freeman locked the bag in a footlocker in the trunk of his patrol car, secured with a padlock that had one key kept in his exclusive possession. On Monday, Freeman gave the urine specimen to Clanton, the employee responsible for mailing blood and urine samples to the State Crime Laboratory.

Clanton testified that it is her procedure, when given a urine specimen, to wrap more tape around the container to avoid leakage. She testified that she used to place the specimens in either a ziploc bag, box, or large manila envelope for mailing, but currently used a box. Although she testified at trial that she could not remember how she packaged Kerr's urine specimen, she had testified at the hearing on a motion to suppress that she had put it in a ziploc bag, placed paper towels around it, and mailed it in a small box.

Solomons, who supervises the toxicology section of the GBI Division of Forensic Sciences, testified that the specimen jar containing Kerr's urine sample was received in a ziploc plastic bag in a large manila envelope sealed with tape. Although the screw-on lid of the specimen container was sealed with evidence tape, a small amount of the urine had leaked into the plastic bag in transit. At least three-fourths of the specimen was in the container. Solomons placed the specimen in cold storage with other samples.

Callahan, a forensic toxicologist, analyzed the urine specimen and testified that she found marijuana metabolites, cocaine, and benzoylecgonine (which is cocaine's metabolite). Appellant objected to this testimony under Durden v. State, 187 Ga.App. 154(1), 369 S.E.2d 764 (1988); Box v. State, 187 Ga.App. 260, 370 S.E.2d 28 (1988), and Camarata v. State, 188 Ga.App. 41, 42 (1), 371 S.E.2d 885 (1988), on grounds that the witness had not analyzed the quantities of the controlled substances in the urine. Finding Durden and its progeny distinguishable, the trial court overruled this objection.

1. Appellant contends that the trial court erred in denying his motion to suppress the GBI report of the findings that the controlled substances were present in his urine sample.

He argues that Clanton's testimony at the earlier hearing, that she had placed the urine sample in a box, the testimony by GBI personnel that it had been received in an envelope, and the fact that the contents had leaked in transit established a prima facie case of tampering during the chain of custody, entitling him to suppression of it and all evidence relating to it.

"The only burden on the state is to show with reasonable certainty that the evidence examined is the same as that seized and that there has been no tampering or substitution. [Cits.]" Phillips v. State, 167 Ga.App. 260, 263(2), 305 S.E.2d 918 (1983). "[T]he burden is on the state to show with reasonable certainty that no tampering with the evidence has occurred, but where there is only a bare speculation of tampering it is proper to admit the evidence and let whatever doubt remains go to its weight." Graham v. State, 152 Ga.App. 233, 235(1c), 262 S.E.2d 465 (1979). There being no evidence of tampering or substitution but merely of a leak of part of the sample, and no evidence that the leak effected a contamination of the sample, the trial court did not err in doing that here.

2. Appellant contends that the trial court erred in allowing the forensic expert to testify as to the degree of appellant's drug-related intoxication and his impairment to operate a motor vehicle when the exact numerical quantity of the drug was not stated in the forensic report.

Appellant relies upon Durden and its progeny. In Durden, the forensic expert testified that in order to issue a statement in a report that marijuana metabolites were found, there has to be at least 25 nanograms per milliliter present; a quantitative analysis of Durden's blood sample showed approximately 180 to 200 nanograms per milliliter present; this concentration indicates ...