Potter v. State
| Decision Date | 03 December 2009 |
| Docket Number | No. A09A2109.,A09A2109. |
| Citation | 301 Ga. App. 411,687 S.E.2d 653 |
| Parties | POTTER v. The STATE. |
| Court | Georgia Court of Appeals |
David James Dunn Jr., Douglas Ray Woodruff, Jad Baskin Johnson, for appellant.
Herbert E. Franklin Jr., Dist. Atty., for appellee.
Jason Dewayne Potter was convicted of nine counts of homicide by vehicle in the first degree,1 two counts of serious injury by vehicle,2 two counts of driving under the influence of alcohol,3 and reckless driving. The convictions stemmed from evidence that after an evening of drinking beer, Potter caused a head-on collision that killed three of the five members of the Thomas family, including parents Rock Avery Thomas and Katherine Thomas and their nine-year-old son, Morgan, and seriously injured another child, Logan. The trial court sentenced Potter to an aggregate of 25 years in confinement plus 35 years on probation. Pursuant to the grant of an out-of-time appeal, Potter asserts that the state failed to prove the chain of custody of his blood sample and failed to lay a foundation for the admission of his blood test results. Potter also contends that the trial court erred by admitting expert testimony on the scientific method of converting a serum alcohol reading into a whole blood alcohol concentration, which is an issue of first impression in this state. Finally, Potter challenges the exclusion of Rock Thomas's two prior traffic citations. Finding no error, we affirm.
Construed most favorably to the verdict,4 the evidence shows that at approximately 11:00 p.m. on April 2, 2004, Rock Thomas was driving his family home on State Highway 193 in Walker County when their minivan was suddenly struck head-on by Potter's S-10 pickup truck. According to Georgia State Patrol Trooper Heath Stewart, a member of the Specialized Collision Reconstruction Team, Potter was driving 69 mph, well over the 50 mph speed limit on Highway 193, when his truck crossed over the centerline and struck the minivan, which was traveling 45 mph. Rock and Katherine Thomas died at the scene, while Morgan died later at a local hospital. Logan's intestines ruptured due to the impact, necessitating two surgeries and a lengthy hospitalization. Katherine's son, David McKenzie, who was in the back seat, suffered facial injuries.
The evidence further showed that earlier that night, Potter split a 12-pack of beer with his friend Lance McGill. After spending the evening drinking, playing video games, and riding around, Potter dropped McGill off at his residence. Before Potter drove away, McGill advised him of the safest route to take home to avoid being caught for DUI.
Multiple witnesses testified to the horrific nature of the collision. Potter was seriously injured and was airlifted by helicopter to Baroness Erlanger Hospital in Chattanooga, where his blood was drawn. Potter's blood sample revealed a serum alcohol concentration of 0.158 grams per deciliter, and he filed a motion in limine to exclude these results. At a pretrial hearing on the motion, Christopher Tillson, who manages the implied consent division of the Georgia Bureau of Investigation ("GBI") state crime lab, testified that the alcohol concentration in a serum or plasma specimen is generally 14 to 20 percent higher than that in a whole blood sample because serum or plasma has a higher water content. However, the Georgia Code defines "alcohol concentration" as "grams of alcohol per 100 milliliters of blood," and the state crime lab presumes that "blood" refers to whole blood.5 Tillson explained that a conversion factor is applied to the serum sample reading in order to arrive at a blood alcohol result that comports with the statute. In this case, Tillson applied a conversion factor of 20 percent to the serum reading to arrive at a whole blood alcohol concentration of 0.126 grams.
Potter's expert witness, Warren James Woodford, Ph.D., a chemist, testified that the alcohol concentration reported on the hospital blood test did not comport with Georgia law and that no equation could be applied to convert the number with any certainty. Potter argued that the conversion procedure was unreliable and sought to exclude any evidence concerning the results of his blood test on that basis. The trial court denied Potter's motion, allowing both sides to present expert testimony on this issue at trial.
Joy Cochran, a GBI toxicologist, thereafter testified over Potter's objection that giving Potter the benefit of the greatest variance between serum and whole blood alcohol concentration levels, his serum alcohol result translated into a blood-alcohol level of 0.126 grams percent, or roughly one and one-half times the legal limit of 0.08 grams percent. Dr. Woodford gave extensive testimony, concluding that the readings on the serum test could not be converted into a whole blood alcohol concentration with any reliability.
Finally, similar transaction evidence was admitted showing that in 2002, Potter ran his car 400 feet off the road and through a fence. A nearly empty fifth of Jim Beam whiskey was found in his car, and his blood-alcohol level was 0.204.
1. Potter asserts that the state did not adequately prove the chain of custody of his blood sample. We review the trial court's ruling on the adequacy of the chain of custody under an abuse of discretion standard6 and find none here.
Where the [s]tate seeks to introduce evidence of a fungible nature, it must show a chain of custody adequate to preserve the identity of the evidence. The burden is on the [s]tate to show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution. The [s]tate need not negative every possibility of tampering, and need only establish reasonable assurance of the identity of the evidence. When there is only a bare speculation of tampering, it is proper to admit the evidence and let what doubt remains go to the weight. When a blood sample is routinely handled and nothing in the record raises a suspicion that the blood tested was other than that taken from the defendant, the evidence of tests on such blood is admissible.7
In the case at bar, testimony from several witnesses established that the blood sample obtained from Potter was handled in a routine manner. Bryan Goldston, the emergency room technician ("EMT") who drew the blood, testified that he placed the sample in a "vacutainer," marked it with identifying information, and hand delivered it to lab personnel. Beth Broetzmann, the medical lab technician who received Potter's blood sample, testified that it was labeled with his name, his billing account number, the time of collection, and the identity of the EMT who collected it. Broetzmann testified that if the sample had not been properly identified, it would have been discarded, and the problem would have been documented. Broetzmann immediately took the sample to the chemistry department to be tested. Kriss Crutcher, another medical lab technician, testified that he received the sample; that he was asked to run an alcohol level on it; that he performed the test by putting the sample on a properly calibrated Dade Behring Dimension Analyzer; and that the sample has a bar code label, which identifies the patient and the type of test that has been ordered. The Analyzer reads the bar code.
Potter contends that the chain of custody was broken because Broetzmann refreshed her recollection with a document that contained a different medical record number for Potter than the number on the test results that were admitted into evidence. The record shows that Broetzmann testified on cross-examination that the patient number on the lab report she was reviewing was 1322842. Defense counsel then showed her a document, which counsel did not identify, and asked whether it was different. Broetzmann replied, The second number appears on Potter's test results as his medical record number, and he contends that the discrepancy in the numbers creates a suspicion that the blood sample tested was not the one drawn. We disagree.
At the outset, we note that the document used to refresh Broetzmann's recollection was not introduced into evidence, so we are unable to review any purported discrepancies in the numbers. Moreover, Broetzmann explained the discrepancy. She testified that the blood sample was labeled with a name, a billing account number, and a unique "accession" number, so that the specimen was the same even if the medical record numbers were different.
The discrepancies noted would go to the weight of the evidence and not its admissibility. The weight of the evidence and the credibility of the witnesses are questions for the factfinder. Here, the jury chose to believe the [s]tate's witnesses as to the blood sample[], and it was authorized to do so8
It follows that the trial court did not abuse its discretion in admitting the sample into evidence.9
2. Potter also argues that the state failed to lay a foundation for the admission of his blood test results under the business record exception to the hearsay rule, OCGA § 24-3-14, rendering the document and any testimony thereon inadmissible hearsay. Potter also complains that the document was hearsay because although it was admitted during the testimony of the medical lab technician who actually performed the test, Crutcher, he did not testify to the actual results. This argument fails for a number of reasons.
Crutcher, who performed the serum alcohol level on the sample, testified that he documented the results in the computer according to "standard operating procedure"; that he performed the test utilizing a properly calibrated analyzer; that the machine was in proper working order at the time he performed the test; that he received the blood sample at 1:00 a.m. and ran the test within ten minutes of receipt; and that the results shown on the computer printout were the results that he obtained when he ran the...
To continue reading
Request your trial
-
Brown v. the State.
...21. (Punctuation and footnote omitted.) Garland v. State, 256 Ga.App. 313, 318(6), 568 S.E.2d 540 (2002); accord Potter v. State, 301 Ga.App. 411, 416(2), 687 S.E.2d 653 (2009) (acquiescence in procedure by which document was identified deprived defendant of right to complain on appeal); Hi......
-
Raymond v. State
... ... I could be more specific, but I don't believe I have to. (Emphasis supplied.) Contrary to counsel's belief, it is necessary that an objection for lack of foundation specify the foundational element that is contended to be lacking. Tolver v. State, 269 Ga. 530, 532(2), 500 S.E.2d 563 (1998); Potter v. State, 301 Ga.App. 411, 414415(2), 687 S.E.2d 653 (2009). That was not done here, and this issue is not preserved for appeal. Tolver, supra 269 Ga. at 532(2), 500 S.E.2d 563. (b) MoneyGram's representative testified that Exhibit 44 was a spreadsheet of transactional data generated by CFS's ... ...