Moorman v. State

• Decision Date: 21 September 1990
• Citation: 574 So.2d 953
• Parties: Daryl D. MOORMAN v. STATE. CR 89-187.
• Court: Alabama Court of Criminal Appeals

Page 953

574 So.2d 953

Daryl D. MOORMAN v. STATE.

CR 89-187.

Court of Criminal Appeals of Alabama.

Sept. 21, 1990.

Rehearing Denied Nov. 16, 1990.

Certiorari Denied Jan. 25, 1991 Alabama Supreme Court 1900383.

Michael D. Cook, Lanett, for appellant.

Don Siegelman, Atty. Gen., and Andrew J. Segal, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

Daryl Dean Moorman was convicted for the criminally negligent homicide of Willie C. Luke, Sr., and was sentenced to eight years' imprisonment. He raises two issues on this appeal from that conviction.

I

This conviction grew out of a vehicular homicide. Following the collision, the injured defendant was taken to the East Alabama Medical Center, where a chemical test of his blood revealed a blood-alcohol level of .298%. The defendant argues that the blood test results were inadmissible because the State failed to prove a proper chain of custody of the blood sample and failed to prove the reliability of the test instrument employed.

A. Chain of Custody

The deputy coroner of Lee County pronounced Mr. Luke dead at the scene of the accident at 3:25 on the afternoon of November 23, 1988. The injured defendant was taken to the East Alabama Medical Center. Wanda Johnson, a registered nurse on duty in the emergency room, testified that between 3:30 and 4:00 that afternoon she simultaneously drew at least three blood samples from the defendant for "diagnostic purposes" and for "legal purposes." Each sample was placed in a prepackaged tube and each tube had a different colored top. Nurse Johnson did not testify that the sample she sent to the laboratory had a purple top. She did testify that she sealed each tube and identified each sample with the defendant's name and the hospital number. She then gave one sample to Opelika police detective John Richardson. She gave the other samples to the "unit secretary to be sent to the lab." She testified that "[s]omebody from the lab picked it up." Johnson testified that tests for the emergency room were "automatically done stat [as soon as possible]." Neither the unit secretary nor the person from the laboratory who picked up the sample testified at trial.

Jane Trip was the "toxicology coordinator" for the hospital laboratory. She was "in charge of all the drugs of abuse testing," "responsible for all the therapeutic drug monitoring ... run at the hospital," and was "also in charge of all the toxicology drugs [including ethanol alcohol] ... run at the hospital." She tested the one sample of the defendant's blood she received from "laboratory personnel." This sample had a red and grey speckled top and appeared to be "intact." She testified that the information on the sample container indicated that the sample had been taken at 3:30 p.m. Although she did not indicate the exact time she received the sample, she testified that she "usually receive[d] the samples [from the emergency room] between 5 and 10 minutes after they're collected." She completed her analysis of the sample at 4:15 p.m.

The prosecution did not attempt to introduce the results of the defendant's blood-alcohol test under Alabama's implied consent statute, Ala.Code 1975, § 32-5-192, and its counterpart, § 32-5-194, see Ex parte Bush, 474 So.2d 168 (Ala.1985), but did so under general evidence principles, Whetstone v. State, 407 So.2d 854, 857 (Ala.Cr.App.1981).

In Suttle v. State, 565 So.2d 1197 (Ala.Cr.App.1990), a conviction for vehicular homicide was reversed because the State failed to account for the whereabouts of the blood samples taken from the accused during the four days between the time the samples were taken by a nurse and the time they were received by the State's forensic expert.

"The principles governing this issue were set forth in Ex parte Williams, 548 So.2d 518, 520 (Ala.1989):

" 'The purpose of the establishment of the chain of custody is announced in Ex parte Williams, 505 So.2d 1254 (Ala.1987):

" ' "The purpose for requiring that the chain of custody be shown is to establish to a reasonable probability that there has been no tampering with the evidence. Williams v. State, 375 So.2d 1257 (Ala.Cr.App.), cert. denied, 375 So.2d 1271 (Ala.1979); Tate v. State, 435 So.2d 190 (Ala.Cr.App.1983); Smith v. State, 446 So.2d 68 (Ala.Cr.App.1984). 'The evidence need not negate the most remote possibility of substitution, alteration, or tampering with the evidence, but rather must prove to a reasonable probability that the item is the same as, and not substantially different from, the object as it existed at the beginning of the chain.' Slaughter v. State, 411 So.2d 819, 822 (Ala.Cr.App.1981) (emphasis supplied)."

" '505 So.2d at 1255.

" 'A showing that there was no break in the chain of custody is required to establish a sufficient predicate for admission into evidence. Ex parte Yarber, 375 So.2d 1231 (Ala.1979), reversed on other grounds, 437 So.2d 1330 (Ala.1983). The identification of the evidence and continuity of possession must be sufficiently established in order to assure the authenticity of the item, Ex parte Yarber, supra.

" 'This state employs two separate standards for testing the chain of custody--the weak link test announced in Sommer v. State, 489 So.2d 643 (Ala.Crim.App.1986), and the missing link test announced in Mauldin v. State, 402 So.2d 1106 (Ala.Crim.App.1981).

" 'Where a weak link in the chain of custody is found, the weight and credit afforded the evidence, rather than its admissibility, is questioned. Sommer, supra. Where a break in the chain of custody, or a "missing link" in the chain of custody is shown, the admissibility of the evidence is questioned, Mauldin, supra.'

"With regard to specimens taken from the human body, it is also incumbent upon the prosecution to show that the specimen analyzed was in fact the specimen taken from the defendant. In such cases, '[t]he "chain of custody" involves "the necessity of proving where and by whom the specimen was kept and through whose hands it passed." J. Richardson, Modern Scientific Evidence, Section 13.14a (2d ed. 1974).' Gothard v. State, 452 So.2d 889, 890 (Ala.Cr.App.), cert. stricken, 450 So.2d 479 (Ala.1984). See generally, A. Moenssens, F. Inbau & J. Starrs, Scientific Evidence in Criminal Cases § 1.18(2)(c) (3d ed. 1986). '[W]here the substance analyzed has passed through several hands the evidence must not leave it to conjecture as to who had it and what was done with it between the taking and the analysis.' Rodgers v. Commonwealth, 197 Va. 527, 90 S.E.2d 257, 260 (1955) (emphasis added)."

Suttle, 565 So.2d at 1198-99.

Despite the facts that two "links" in the chain of custody did not testify and were only generally identified as a unit secretary and a person from the laboratory, we find no "break" in the chain of custody of the blood sample. The evidence and the totality of the circumstances in this case establish a reasonable probability of the identity of the blood sample and the integrity of the continuity of possession.

"For the few moments that the evidence was within the purview of the medical staff who did not testify to their parts in the chain of custody, there was only the remotest possibility of substitution, alteration, or tampering. Evidence momentarily unattended in a hospital setting to which only medical personnel have access is admissible, if otherwise sufficiently authenticated. See McIntosh v. State, 443 So.2d 1275 [Ala.Cr.App.], reversed on other grounds, 443 So.2d 1283 (Ala.1983) (slide delivered to lab reception area and momentarily unattended admissible); Baynes v. State, 423 So.2d 307, 311 (Ala.Cr.App.1982) (panties thrown by rape prosecutrix into clothes hamper, and rape kit unattended for hours in hospital both admissible over chain of custody objection)."

Reese v. State, 549 So.2d 148, 153 (Ala.Cr.App.1989) (clothing of injured police officers which had been removed by medical personnel in officers' separate hospital rooms, dropped on the floor, and later retrieved by other officers stationed outside the rooms was admissible). See also Jackson v. State, 516 So.2d 726, 751-52 (Ala.Cr.App.1985), remanded on other grounds, 516 So.2d 768 (Ala.1986) (forensic serologist was properly allowed to testify to the results of blood tests, even though the person who delivered the blood samples to the serologist did not testify); Miller v. State, 484 So.2d 1203, 1204-05 (Ala.Cr.App.1986) ("[a]ppellate courts have 'consistently' rejected the argument that the 'failure of the evidence to follow a specimen through the mails every step of the way to the chemist's laboratory should be the basis for rejection of chemical test evidence' when the proof shows the specimen was placed in the proper type of sealed container so that the possibility of contamination during transit was eliminated); Blackmon v. State, 487 So.2d 1022, 1024 (Ala.Cr.App.1986) (where examining physician placed sealed rape kit in secured refrigerated area in hospital and an officer picked up the kit at the hospital later the same day, testimony concerning the test results as admissible); Oury v. State, 53 Ala.App. 240, 243, 298 So.2d 661, 663 (1974) (failure of toxicologist to testify that he delivered drug to subordinate for analysis did not establish break in chain of custody of drug); Powell v. State, 47 Ala.App. 582, 585, 258 So.2d 923, 925 (1972) (there was no missing link in the chain of custody where the officer testified that he delivered the drugs in a sealed package to the department of toxicology and the forensic toxicologist testified that he received the package in a sealed condition, even though there was no testimony of who gave the package to the toxicologist).

"The principles governing chain of custody challenges were outlined in United States v. Lane, 591 F.2d 961 (D.C.Cir.1979), as follows:

" 'Tangible evidence of crime is admissible when shown to be "in substantially the same condition as when the crime was committed." And it is to be presumed that the integrity...