Orr v. State, 2-283A56

CourtCourt of Appeals of Indiana
Citation472 N.E.2d 627
Docket NumberNo. 2-283A56,2-283A56
PartiesClyde ORR, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
Decision Date27 December 1984

James H. Voyles, Ober, Symmes, Cardwell, Voyles & Zahn, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Theodore E. Hansen, Deputy Atty. Gen., Indianapolis, for appellee.

MILLER, Presiding Judge of the Fourth District (Sitting by Designation).

Defendant-appellant Clyde Orr, appeals his conviction on two counts of Operating a Motor Vehicle while Intoxicated Resulting in the Death of Another Person. On appeal he challenges

1. the admissibility of the results of a laboratory analysis of blood taken from him at the hospital after the accident,

2. the trial court's refusal to give two of his proposed jury instructions,

3. the admissibility of statements made by him to police officers at the scene of the accident and at the hospital, and

4. the sufficiency of the evidence to sustain his conviction.

We find no error and affirm the trial court.


Shortly before 1:00 A.M. on August 23, 1981, Clyde Orr was driving his yellow Cadillac west on U.S. Highway 40 on the west side of Indianapolis. He pulled into the left lane of the four-lane highway to pass a slower moving vehicle. As he passed the vehicle and began to pull back into the right lane, he suddenly came upon a slow moving truck which he had apparently not seen. Orr's Cadillac then cut sharply to the left, crossing over into the two oncoming lanes and striking head-on, a green Ford in which the decedents were traveling eastbound in the far lane of the road. Two teenage couples were in the car that was struck by Orr. The passengers in the back seat, Doug Cohen and Tammy Samuels, were seriously injured, while the two in the front seat, Kimberly Kent and Rickey Jessee died as a result of the collision.

The investigating officer on the scene, Marion County Deputy Sheriff Bonnie Goff found Orr pinned on the front floor of his car. She testified that he smelled of alcohol and she believed him to be intoxicated. She also testified that he appeared to be injured and was yelling and swearing at the people trying to help him.

Orr was taken by ambulance to the Methodist Hospital Emergency Room. After concluding her duties at the scene of the collision, Officer Goff went to the hospital to continue her investigation of the accident. She attempted to talk to Orr about the accident, but he was screaming that he wanted to get out of the hospital and did not want to talk to anyone. Eventually, he did answer some of her questions and admitted he had been drinking at the Crafty Cockney's and the Picadilly Lounge. Orr was never placed under any restraint or under arrest.

Orr was treated by Dr. Robert Weller, the attending physician in the emergency room that morning. Dr. Weller ordered a blood-alcohol test on Orr's blood. Two samples of Orr's blood were taken to the emergency room laboratory at approximately 2:45 A.M. and 2:50 A.M. by Jean Richmond, a staff nurse at the hospital.

Naomi Carey, a lab technician at Methodist Hospital received a blood sample labeled Clyde Orr at approximately 3:00 A.M. She performed the blood-alcohol test on Orr's Orr was indicted by a grand jury on December 8, 1981 being charged with two counts of Operating a Motor Vehicle While Intoxicated Resulting in the Death of Another Person, two counts of Reckless Homicide, two counts of Involuntary Manslaughter, and two counts of Battery. He was tried by jury commencing on October 11, 1982 and at the close of State's case the court granted Orr a judgment on the evidence as to the two counts of Battery.

blood the results of which showed .19% by weight of alcohol in his blood.

On October 15, 1982, the jury returned guilty verdicts as to the remaining counts. On December 3, 1982 the trial court entered judgments of conviction for the two counts of driving while intoxicated resulting in the death of another person, as the remaining counts were covered in these charges. Orr was sentenced to imprisonment for a period of five years with three years suspended on each count, sentences to run concurrently.


Admissibility of the Results of the Laboratory Analysis of Blood Taken from Orr at the Hospital

Orr's initial contention is that the State failed to establish a proper foundation for admitting the results of the blood alcohol because:

1. the chain of custody of the blood sample did not adequately establish that the laboratory analysis performed by Naomi Carey was carried out with Orr's blood, and

2. the analysis of the blood sample was performed in a scientifically unreliable manner.

(1) Chain of Custody

The first prong of Orr's challenge to the adequacy of the foundation concerns the proper identification and chain of custody of the blood sample. The thrust of Orr's argument is that the blood test results were not adequately identified as being those which derived from his blood sample because of a combination of two "facts": (1) the State did not show that the blood test results were not those of another individual with the same last name, and (2) his hospital patient number was not printed on the requisition form which accompanied the labeled vial containing his blood sample. Orr also urges that the State's inability to account for every person through whose hands the sample passed between the emergency room and the chemistry lab is fatal to a proper chain of custody.

The admissibility of fungible evidence such as blood samples depends upon a foundation which establishes, inter alia, a continuous chain of custody. The purpose of the rule requiring the State to show a continuous chain of custody of fungible evidence is to demonstrate that there has been no tampering, loss, substitution, or mistake with respect to the evidence. Arnold v. State, (1982) Ind., 436 N.E.2d 288, 291 citing Bruce v. State, (1978) 268 Ind. 180, 375 N.E.2d 1042, cert. denied 439 U.S. 988, 99 S.Ct. 586, 58 L.Ed.2d 662. When fungible evidence is subjected to analysis or testing, it is incumbent upon the State to present evidence of the doctor or someone in authority who was present at the time of the taking of the specimen and to further demonstrate a chain of custody of the specimen to the lab where the testing was made and the conclusions drawn. Rinard v. State, (1976) 256 Ind. 56, 351 N.E.2d 20. However, it is not necessary to account for every minute or every hand through which the sample passes. A proper showing requires only the production of evidence from which the trial court may reasonably conclude that the specimen passed through time and various hands in a relatively undisturbed fashion to the point where it is subjected to analysis. Fendley v. Ford, (1984) Ind.App., 458 N.E.2d 1167; Orr v. Econo-Car of Indianapolis, Inc., (1971) 150 Ind.App. 411, 276 N.E.2d 524.

The record reveals that shortly after Orr was admitted to the Methodist Hospital emergency room on the morning of August 23, 1981, Dr. Weller, the treating physician, ordered a blood alcohol test to be performed on Orr's blood. The emergency room logbook containing the entries for the blood samples which were drawn that morning shows two entries for Orr--one at 2:45 A.M. under the name of "Orr," and one at 2:50 A.M. under the name of "Clyde Orr." Each of these entries had been initialed by Jean Richmond, the supervising nurse in the emergency room that morning, who, at the suppression hearing and at trial, identified the initials and handwriting as her own.

Richmond testified that Orr had been placed in Room 15 of the emergency area which was under her care and supervision. She stated that she was present when Orr's blood samples had been drawn, although she did not recall whether she had personally drawn the samples, or whether another nurse working in the same area had drawn the samples. Richmond explained that the blood is drawn and injected into presealed sterilized vials and that the vials, containing permanent non-removable labels, are then marked with the patient's name and hospital number. The vials are then taken to the emergency room laboratory where they are transported to a designated location for analysis. Richmond testified that it was customary to draw at least two vials of blood when any kind of blood work was to be performed.

Naomi Carey, the laboratory technician who performed the blood alcohol test on Orr's blood sample, testified that on the morning of August 23, 1981, she was in the chemistry lab performing toxicology tests. She stated that she received three blood samples from the emergency room laboratory at 3:00 A.M., each of which was to be tested for its alcohol content. The vials containing the samples from the emergency room lab were each sealed and bore non-removable labels with the name and hospital number of the patient from whom they were drawn. The vials she received were the samples of Clyde Orr, Doug Cohen, and John Doe. As was her practice, Carey made an entry in the chemistry lab logbook for each of the samples received. The entry for each included the patient's name, the time the sample arrived in the chemistry lab, the type of test to be performed, the name of the treating physician who ordered the test, the location from which the samples had been sent, and a notation denoting that the requisition was on a back-up handwritten form rather than the customary computer printout. The back-up requisition form was always used in the early morning hours when the Methodist Hospital computer was down and inoperative.

Testimony was elicited from Carey, as well as Nurse Richmond and Dr. Walter Frajola, Orr's medical expert, regarding the significance of the hospital patient number. Each stated that the number was of crucial importance for purposes of accurate identification and correlation of laboratory work with the patients for whom such services were performed. Furthermore, Carey, Richmond, and...

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