Rodgers v. Com.
| Decision Date | 28 November 1955 |
| Docket Number | No. 4458,4458 |
| Citation | 90 S.E.2d 257,197 Va. 527 |
| Parties | CHARLES EDWARD RODGERS v. COMMONWEALTH OF VIRGINIA. Record |
| Court | Virginia Supreme Court |
Gilmer, Harman & Sadler, for the plaintiff in error.
J. Lindsay Almond, Jr., Attorney General and R. D. McIlwaine, III, Assistant Attorney General, for the Commonwealth.
Charles Edward Rodgers has been convicted of operating a motor vehicle while under the influence of intoxicants, Code § 18-75, and sentenced to pay a fine. He assigns error to the admission in evidence of the results of an analysis of blood alleged to be his, and to the giving of an instruction to the jury.
On the night of December 2, 1953, a car driven by Rodgers was involved in a collision with another car on U.S. Highway 11 a short distance east of Dublin, in Pulaski county. A Dublin police officer went to the scene and found the defendant 'wobbly and staggering' and with a strong odor of alcohol on his breath. He expressed the opinion that Rodgers was 'considerably intoxicated.'
A State trooper was called and found the defendant standing beside his automobile. He had an odor of alcohol on his breath, seemed to be unsteady on his feet and was not coherent. In the opinion of the trooper the defendant was intoxicated. He placed him under arrest and brought him to Pulaski, the county seat.
The evidence given by the defendant and his witnesses was to the effect that he was not intoxicated. The resulting conflict in the evidence was for the jury to settle.
On the way to Pulaski the defendant insisted on being taken to the Pulaski hospital for a blood test. The trooper took him there and a sample of his blood was taken. At the beginning of the trial the defendant objected to the introduction of the blood analysis unless it was properly identified. Thereupon, in the absence of the jury, the court heard evidence on the point from the trooper, the technician who took the sample and the State Toxicologist. The defendant then moved to exclude from the evidence the result of the analysis because the sample analyzed had not been sufficiently identified. The court overruled the motion and defendant excepted.
We may assume, without deciding, that the trial court ruled correctly that the evidence heard by it furnished a sufficient foundation for the introduction of the analysis. Thereupon, as stated in the Commonwealth's brief, it was for the jury to determine after hearing the testimony submitted to it whether the blood analyzed was that taken from the defendant. Pomainville v. Bicknell, (Vt.), 109 A. (2d) 342; Annotation, 21 A.L.R. (2d) 1216, at 1219.
While the evidence heard by the jury on the question of the identity of the blood came from the same witnesses who testified before the court, their testimony before the jury, as shown by the record, omitted some important statements made to the court. The evidence before the jury was as follows:
A doctor connected with the Pulaski hospital testified that on the request of the trooper he authorized the technician, Miss Phipps, to take the blood sample but he was not at the hospital when it was done and knew nothing further about it.
The technician testified that she was called from her home to the hospital on December 2, 1953, about ten or ten-thirty at night, and there took a sample of blood, using standard procedure for an alcohol test, from a person who said his name was Rodgers. She did not recognize him in the courtroom. She said she put the blood into two tubes, one plain and one with potassium oxalate. She did not remember whether the trooper furnished her with a tube. She did not remember whether she labeled the tubes but said she prepared them both for mailing to the State laboratory. On cross-examination she said she sent both of the tubes away, either to Abingdon or Richmond, her best impression was to Abingdon. Asked if she remembered packaging the sample, she replied she wouldn't swear to it but she was the only one there; that it could have been packaged next morning for mailing but 'the one that took it the night before would certainly mail it the next morning probably. ' On questioning by the court she said, 'We label everything we do;' that she did not recall writing anything on this particular tube, 'But surely I did is all I can say.'
The trooper testified that he was present when the blood sample was taken but did not know what the technician did with the sample; that he furnished her with a container for mailing the sample like one he filed as an exhibit, being a test tube with label attached together with a mailing carton and mailing label already addressed to the Office of the Chief Medical Examiner in Richmond. While on direct examination he said he saw the technician label the sample, on cross-examination he said he could not be certain of that; that he did not see her fill in the label on the tube or prepare it for mailing. He said that after she got the blood and he gave her his name and told her he wanted a copy of the report, he and the defendant immediately left. She was then writing something, and he did get a copy of the report.
The evidence of Dr. Kaye, the State Toxicologist, before the jury appears in the record only in narrative form. He testified that an alcohol content of .15% in the blood stream was enough to make any person intoxicated; that there was no question that an amount from .15% up would produce intoxication.
The quoted language next above is, according to the record, all the evidence before the jury as to the receipt and analysis of the blood at Dr. Kaye's office. *
The result of this blood analysis was necessarily weighty evidence in the case. The court properly instructed the jury that before they should consider the result of the blood test...
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Thomas v. State
...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 [in In specific regard to chain-of-custody requirements for critical DNA evidence, we recognize th......
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...body to the final custodian by whom it is analyzed. Joyner v. Utterback, 196 Iowa 1040, 195 N.W. 594. As stated in Rodgers v. Commonwealth, 197 Va. 527, 90 S.E.2d 257, 260, 'Where the substance analyzed has passed through several hands the evidence must not leave it to conjecture as to who ......
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...21 Va. App. 552, 556, 466 S.E.2d 116, 117 (1996) (quoting Reedy, 9 Va. App. at 391, 388 S.E.2d at 652). Kumar cites Rodgers v. Commonwealth, 197 Va. 527, 90 S.E.2d 257 (1955), in support of his argument that the exhibits should have been excluded, but Rodgers is distinguishable from the fac......
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