Rabovsky v. Com.

• Decision Date: 19 February 1998
• Docket Number: No. 96-SC-462-MR,96-SC-462-MR
• Citation: 973 S.W.2d 6
• Parties: Sue K. RABOVSKY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 6

973 S.W.2d 6

Sue K. RABOVSKY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 96-SC-462-MR.

Supreme Court of Kentucky.

Feb. 19, 1998.

Rehearing Denied Sept. 3, 1998.

John T. McCall, Louisville, for appellant.

A.B. Chandler, III, Attorney General, and Samuel J. Floyd, Jr., Criminal Appellate Division, Office of Attorney General, Frankfort, for appellee.

COOPER, Justice.

Appellant was convicted of murder in the Jefferson Circuit Court and sentenced to twenty-five years imprisonment. She appeals to this court as a matter of right. Ky. Const. § 110(2)(b).

At 9:40 a.m. on March 18, 1995, Appellant called Jefferson County Emergency Medical Services (EMS) and reported that her husband, Charles Rabovsky, was "not responding." When EMS personnel arrived at the Rabovsky residence, Appellant's husband was unconscious. He was transported to Audubon Hospital in Louisville where he remained comatose until he expired on March 29, 1995. The primary treating physician, Dr. Rukmaiah C. Bhupalam, a neurologist, diagnosed the cause of the victim's comatose state and ultimate death as hypoglycemia due to external administration of a massive dose of insulin. This diagnosis was confirmed by Dr. John Cyrus, a specialist in internal medicine and endocrinology, and by Dr. William Smock, an assistant medical examiner trained in clinical forensics. There was substantial circumstantial evidence that Appellant had the motive, opportunity and animus to inject a lethal dose of insulin into her husband's body, presumably while he was asleep. Appellant raises three claims of error.

I. BLOOD TEST RESULTS

Dr. Bhupalam ordered that blood samples be collected from the victim at periodic intervals. The first sample was collected in the emergency room at 11:22 a.m. on March 18, 1995. Another sample was collected in the intensive care unit at 9:40 p.m. on the same day. Other samples were collected on March 19, March 20, March 23, and March 26, 1995. Audubon Hospital had a contract with National Health Laboratories, Inc. (N.H.L.), located in Louisville, to perform laboratory tests on blood samples collected from patients at the hospital. Although Mr. Rabovsky's blood samples were sent to N.H.L. for testing, the actual tests were performed by National Reference Laboratory (N.R.L.) in Nashville, Tennessee. N.H.L. and N.R.L. are owned by the same holding company, but are different corporate entities. The record does not reveal how N.R.L. reported its test results to N.H.L., but the results were reported to Audubon on N.H.L.'s computer-generated report forms. Although Audubon's medical records were introduced into evidence pursuant to KRE 803(6), Appellant objected to various specific entries in those records, including N.H.L.'s printouts reporting the blood test results. No evidence was introduced to prove who collected the blood samples, how they were stored, how they were transported to N.H.L., how they were transported (if they were) to N.R.L., or what method was used to test the samples. The samples collected on March 18 were sent to N.H.L. on March 19. Audubon's records contain the following nurses' notes recorded on March 19, 1995:

9:00 a.m./ Dr. Bhupalam called ordered that all existing lab samples be sent for insulin, C-peptide levels, including original ER lab samples.

9:05 a.m./ lab ¹ called informed about MD's orders. RN was informed that results from ER sample may be inaccurate but all samples would be sent. MD called.

9:10 a.m./ Dr. Bhupalam returned call informed about lab stating ER sample may result in inaccurate level but labs would be sent.

The medical experts in this case testified that insulin is produced naturally within the body by the pancreas; and that when it produces insulin, the pancreas also produces a substance called C-peptide. Thus, if the level of naturally produced insulin is abnormally high, the C-peptide level also should be abnormally high. If the insulin level is abnormally high, but the C-peptide level is normal or low, the insulin must have been introduced into the body from an external source. The normal blood insulin level is 5.0--20.0 uU/ML (microunits per milliliter), and the normal level for C-peptide is 1.0--3.0 NG/ML (nanograms per milliliter). The test results of the two blood samples collected on March 18, 1995 were reported on computer printouts dated March 22 and March 23, 1995. Although the reports do not reflect the times when the samples were collected, it was assumed at trial that the March 23 printout reported the results of the sample taken in the emergency room at 11:22 a.m. and the March 22 printout reported the results of the sample taken in the intensive care unit at 9:40 p.m. The printouts each reported the blood insulin level as "$240" (greater than 240 uU/ML). The March 23 printout reported the C-peptide level at " (less than 0.7 NG/ML). Upon receiving these blood test results, Dr. Bhupalam requested a nurse, whose identity he could not recall, to contact the laboratory and determine the exact figures for the blood insulin levels. On the March 23 printout, someone has handwritten the number "1672" next to the computer-generated number "$240." On the March 22 printout, someone has handwritten the number "483" next to the computer-generated number "$240." Dr. Bhupalam testified over objection that the handwritten numbers reflected the actual insulin levels in the victim's blood when the first two samples were collected.

Appellant asserts error in admitting the blood test reports containing the handwritten annotations and in permitting Dr. Bhupalam to base his opinion on those reports. However, that error was rendered harmless when the Commonwealth produced Dr. Ronald Wagner, technical director of Laboratory Corporation of America (formerly N.H.L.), who testified without objection ² that he had checked N.H.L.'s records and determined that the exact blood insulin level on the first test was 1672 microunits per milliliter and that the exact blood insulin level on the second test was 483 microunits per milliliter. Although Dr. Wagner was not the custodian of N.H.L.'s records, he was a "qualified witness" to testify to the contents of those records as permitted by KRE 803(6).

The more serious and ultimately fatal problem with respect to the admission of the blood test results is the total failure of the Commonwealth to establish a chain of custody of the blood samples. This issue relates to the integrity of the evidence and is an integral part of the authentication requirement of KRE 901(a). The purpose of requiring proof of the chain of custody of a blood sample is to show that the blood tested in the laboratory was the same blood drawn from the victim. R. Lawson, The Kentucky Evidence Law Handbook, § 11.00, p. 592 (3rd ed. Michie 1993). While the integrity of weapons or similar items of physical evidence, which are clearly identifiable and distinguishable, does not require proof of a chain of custody, e.g., Beason v. Commonwealth, Ky., 548 S.W.2d 835 (1977), Smith v. Commonwealth, Ky., 366 S.W.2d 902 (1962), a chain of custody is required for blood samples or other specimens taken from a human body for the purpose of analysis. Henderson v. Commonwealth, Ky., 507 S.W.2d 454 (1974); Calvert v. Commonwealth, Ky.App., 708 S.W.2d 121, 124 (1986); Haste v. Kentucky Unemployment Ins. Comm'n, Ky.App., 673 S.W.2d 740 (1984); Lawson, supra, § 11.00, p. 593; 32A C.J.S. Evidence § 797 (1996).

Even with respect to substances which are not clearly identifiable or distinguishable, it is unnecessary to establish a perfect chain of custody or to eliminate all possibility of tampering or misidentification, so long as there is persuasive evidence that "the reasonable probability is that the evidence has not been altered in any material respect." United States v. Cardenas, 864 F.2d 1528, 1532 (10th Cir.1989), cert. denied, 491 U.S. 909, 109 S.Ct. 3197, 105 L.Ed.2d 705 (1989). See also Brown v. Commonwealth, Ky., 449 S.W.2d 738, 740 (1969). Gaps in the chain normally go to the weight of the evidence rather than to its admissibility. United States v. Lott, 854 F.2d 244, 250 (7th Cir.1988). Here, however, there was no attempt at all to establish the chain of custody of these blood samples, even though the samples apparently were transferred and stored internally within the hospital, then transferred and stored outside the hospital, first at a laboratory in Louisville, then, presumably, at another laboratory in Nashville. As Justice Palmore aptly put it in Henderson v. Commonwealth, supra:

Hence the integrity of the evidence from the time it was relinquished by the investigative officers until it reached the laboratory analyst was not proved. We think that surely it is unnecessary to delve into the literature of the law in order to document the point that this type of carelessness in the development of important evidence during the course of a trial simply will not do. We know it is tedious and time-consuming to trace the integrity of an exhibit; in fact, it is tedious and time-consuming to have a trial at all when we think we know the defendant is guilty anyway, but it is not half as bad a nuisance to do it right the first time as it is to go through the whole process a second time two years later.

Id. at 461.

The dissenting opinion's reliance on Buckler v. Commonwealth, Ky., 541 S.W.2d 935 (1976) is misplaced. With respect to the admission of hospital records, Buckler reiterated the holdings in Bellew v. Commonwealth, Ky., 477 S.W.2d 779 (1972) and Whittaker v. Thornberry, 306 Ky. 830, 209 S.W.2d 498 (1948) that such records were admissible under the common law "shopbook" exception to the hearsay rule. The records in Buckler were written reports prepared by doctors who had treated the defendant's mental illness during her stay at Central State Hospital. The trial court excluded the records because the doctors who originally prepared the reports had not been subpoenaed; thus, there was...