Powell v. State, 7 Div. 585

• Decision Date: 09 December 1986
• Docket Number: 7 Div. 585
• Citation: 515 So.2d 140
• Parties: Terry POWELL v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 140

515 So.2d 140

Terry POWELL v. STATE.

7 Div. 585.

Court of Criminal Appeals of Alabama.

Dec. 9, 1986.

Rehearing Denied Jan. 27, 1987.

Certiorari Quashed Sept. 25, 1987

Alabama Supreme Court 86-650.

Charles A. McGee, Fort Payne, for appellant.

Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

The appellant, Terry Powell, was charged with the murder of Nora Traylor and Barbara Eaves, "by operating a motor vehicle while under the influence of alcohol and thereby striking with a motor vehicle, the vehicle in which the said Nora Traylor and Barbara Eaves were occupants, in violation of § 13A-6-2(a)(2) of the Code of Alabama." He was found guilty of manslaughter and sentenced to six years in the state penitentiary.

Mrs. Alta Prestwood and her mother, Nora Traylor, were passengers in a car driven by Mrs. Prestwood's step-daughter, Barbara Eaves, when their car was hit in the rear by a silver-colored, Pontiac TransAm automobile being driven by the appellant on Interstate 59 South. Their car was knocked into a black pick-up truck which was parked in the emergency lane of I-59 South. As a result of the accident, Barbara Eaves and Nora Traylor were killed. Alvin Ferguson, the operator of the pickup truck, was temporarily away from his truck, but testified that immediately before the impact, he heard a car traveling "flat out." DeKalb County Deputy Sheriff Donnie Wagner, the first law enforcement officer at the scene of the wreck, testified that the appellant had stated that he had had a beer or two earlier but he was not drunk. Deputy Sheriff Wagner further testified that he detected the odor of beer about the appellant and that, in his opinion, the appellant was intoxicated.

Alabama State Trooper Donald Aldridge testified that he detected the odor of alcohol about the appellant when he read the appellant his Miranda rights and placed him under arrest for driving under the influence. He further testified that, in his opinion, the appellant was under the influence "of alcoholic beverages or something."

Deputy Sheriff Wagner carried the appellant to Baptist Medical Center where a blood sample was taken by a laboratory technician, Margaret Jackson, in Deputy Wagner's presence. Deputy Wagner kept the samples and then gave them to State Trooper Shannon later that afternoon. Deputy Wagner testified that the vials of blood were in the same condition. Further, Trooper Shannon testified that upon receipt of the vials from Deputy Wagner, he refrigerated them in the Sheriff's office and then mailed them to the Alabama Forensic Laboratory; he stated that they were in the same condition when he mailed them that they were in when he obtained them from Deputy Wagner.

Trooper Shannon also testified that he advised the appellant of his Miranda rights and took a statement from him in which the appellant alleged that he had been drinking that night and in the early morning until about 4:00 a.m.; he believed that he had consumed five or six beers. The appellant stated that he was in a hurry that morning because he was late for weekend guard drill and that he believed he was traveling no more than 60 or 65 miles per hour. Deputy Wagner also testified that the appellant stated that he had been up all night without sleep, was tired, in a hurry, and had been drinking.

The State also introduced the testimony of four individuals who alleged that the appellant had passed them at a high rate of speed several miles up the road. A toxicologist testified that she did an analysis on the two tubes of blood and that the appellant's blood-alcohol content was 0.16 percent ethyl alcohol. She further testified as to the effects of having 0.16 percent alcohol in the blood: a retarded response time, slowed reactions, narrowed field of vision, and impaired fine motor skills. She also stated that a person would become rather sleepy.

The appellant testified in his own behalf that as he was nearing the exit, he slowed down and the Eaves car moved into his lane, leaving him no course of action to avoid the accident.

I.

The appellant contends that the trial court erred by allowing evidence of results of a chemical blood analysis. He specifically argues that there was no evidence that the law enforcement agency by which the officer was employed had designated the chemical blood analysis as the proper test to be administered. Furthermore, he maintained that there was no proof that the person who withdrew the appellant's blood was qualified, nor did the State show the chain of custody or reliability of the blood test.

Code of Alabama (1975), § 32-5-192, addresses the chemical test or tests of blood, urine, or breath for the purpose of determining the alcoholic content of the blood where the individual has been lawfully arrested for any offense arising out of acts alleged to have been committed while the person was driving a motor vehicle on public highways while under the influence of an intoxicating liquor. It states in pertinent part:

"The test or tests shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving a motor vehicle upon the public highways of this state while under the influence of intoxicating liquor. The law enforcement agency by which such officer is employed shall designate which of the aforesaid tests shall be administered."

In Harper v. City of Troy, 467 So.2d 269 (Ala.Cr.App.1985), this court outlined the predicate required for the admission of such a test, indicating that the prosecution must show (1) which test has been designated for use by the law enforcement agency administering the test and (2) the test and operator have been approved by the State Board of Health. Because the law enforcement agency designates which test is to be used, "such information could be supplied by any officer who would be in a position to know which test was authorized, e.g. among others, the officer who administered the test or a superior officer who authorized or designated the test to be administered." Although Harper and much of the case law in Alabama involve P.E.I. tests, the statute governs blood tests as well. Whetstone v. State, 407 So.2d 854 (Ala.Cr.App.1981); Webb v. State, 378 So.2d 756 (Ala.Cr.App.1979); Estes v. State, 358 So.2d 1050, 1053 (Ala.Cr.App.1978). In Estes, the court indicated that although there was no testimony specifically stating which test the police department had authorized, a reading of the testimony the test operator "can leave no doubt as to which test was, in fact, designated and authorized." Id. at 1054. In Patton v. City of Decatur, 337 So.2d 173 (Ala.Cr.App.1975), the test operator was allowed to testify as to the propriety of the test he employed on the appellant; however, the case was reversed because the prosecution failed to proffer a duly certified and authenticated copy of the methods or regulations adopted and approved by the State Board of Health. Patton v. City of Decatur, 337 So.2d 321 (Ala.1976). However, in Ex parte Reed, 492 So.2d 293 (Ala.1986), the Alabama Supreme Court found that the State failed to prove that the law enforcement agency administering the test had adopted that form of testing. The State argued that the court should look to the entire testimony of the officer who administered the test, despite the lack of any specific testimony on this point; however, the court held that the testimony failed to prove that the test was the standard operating procedure for the Sheriff's Department, and that the absence of such specific testimony on this point may not be fatal to a conviction.

"However, even if the test results were improperly admitted because of the lack of a formal predicate, the conviction is still due to be affirmed. The admission of evidence apparently illegal may be rendered prejudicially innocuous by subsequent legal testimony to the same effect or from which the same facts can be inferred. Yelton v. State, 294 Ala. 340, 317 So.2d 331 (1974); 7 Alabama Digest, Criminal Law § 1169.2(1). The ultimate fact to be inferred here is intoxication or drunkenness."

Estes v. State, supra, at 1054.

In the present case, there was ample evidence "from which the same facts [of the appellant's drunkenness] can be inferred." Deputy Sheriff Wagner testified that a man at the scene of the accident told him that he believed that the appellant had been drinking and that the appellant had previously stated that he had a beer or two, but that he was "not drunk." Further, Wagner testified that he detected the odor of beer about the appellant and that based upon his experience and knowledge, the appellant was "under the influence." Alabama State Trooper Donald Aldridge testified that he detected the odor of alcohol on the appellant when he read him his Miranda rights and that, in his opinion, the appellant was "under the influence." Trooper Shannon testified that he took the appellant's statement after informing him of his rights and that the appellant stated that he "had stayed up all night long, had been drinking, that he had quit drinking about four a.m. Georgia time, and that he believed he had drunk five or six beers, 12-ounce Budweisers." Because of this evidence, any error in the admission of the chemical blood analysis was harmless error.

The appellant submits that Margaret Jackson, who withdrew the blood from him, was a Medical Laboratory Technician and, although her membership card in the American Medical Technologists Association was introduced into evidence, there was no proof that she was duly licensed as required by statute. Section 32-5A-194(a)(2), (1975) Code of Alabama, states:

"When a person shall submit to a blood test at the direction of a law enforcement officer under the provisions of § 32-5-192, only a physician or registered nurse (or other qualified person) may withdraw blood for the purpose of determining the alcoholic...