State v. Fickens
| Decision Date | 26 April 2007 |
| Docket Number | 2007-UP-194 |
| Parties | The State, Respondent, v. George W. Fickens, Appellant. |
| Court | South Carolina Court of Appeals |
THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.
Submitted April 2, 2007
Appeal From Colleton County Jackson V. Gregory, Circuit Court Judge
Appellate Defender Eleanor Duffy Cleary, of Columbia, for Appellant.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Shawn L Reeves, all of Columbia; and Solicitor I. McDuffie Stone, III, of Beaufort; for Respondent.
George W. Fickens was convicted of felony driving under the influence (DUI) and sentenced to sixteen years imprisonment. He appeals, arguing the trial court erred in refusing to suppress the blood alcohol test results because the State failed to: (1) establish a complete chain of custody; (2) comply with the videotaping and affidavit requirements of South Carolina Code section 56-5-2953 (2006); and (3) comply with Ficken's discovery request for proficiency tests relating to the SLED toxicologist. We affirm. [1]
On June 30, 2004, Janette Dunn called the Highway Patrol to alert them that a small black car was weaving in and out of traffic on the westbound lane of Highway 63 near Walterboro and nearly sideswiped her car. After Dunn drove into the median to avoid being hit by the small black car, she continued westbound on the road behind the car. The small black car continued weaving in and out of traffic in the westbound lane before it rounded a curve in the road. When Dunn rounded the same curve, she saw that the small black car had collided with a white car on the shoulder of the eastbound lane. The driver of the white car, Rosa Dopson, was trapped in the vehicle and suffered serious injuries to her face and forehead. She was transported to the Medical University of South Carolina where she later died from blunt force trauma to the head. The driver of the small black car, Fickens, was also trapped under the steering wheel of his car and had to be extricated by emergency personnel.
Lance Corporal Rich Riney of the South Carolina Highway Patrol was the first officer on the scene. He testified that Fickens' passenger was unhurt but extremely intoxicated and the passenger admitted to throwing a bottle of beer in the woods. [2] Trooper Riney found two bottles of Budweiser in brown paper bags: a mostly-consumed twenty-two ounce bottle on the driver's side floorboard and a freshly blood-stained bottle on the ground near Fickens' car. According to Riney, Fickens smelled strongly of alcohol, his speech was slurred, and he was unable to communicate with anyone at the scene. Paramedic Melissa Feathers, who treated Fickens at the scene, also testified that Fickens' clothes and breath smelled strongly of alcohol and Fickens's had slurred speech.
Fickens was transported to the hospital where, at the direction of Trooper Riney, Nurse Shannon Mayes drew Fickens' blood. A blood alcohol test showed that Fickens' blood alcohol level was.277 percent. Fickens was later charged with felony DUI. Over his objections, the results of Fickens' blood alcohol test were admitted at trial. This appeal followed his conviction.
Fickens argues the trial court erred in admitting the blood alcohol test results because there was no evidence as to the identity of the person who took the blood evidence from Trooper Riney at the SLED headquarters and placed the evidence in the locked refrigerator. Thus, Fickens argues, the State failed to establish a complete chain of custody. We disagree.
Whether to admit or exclude evidence is a decision within the sound discretion of the trial court. State v. Horton, 359 S.C. 555, 566, 598 S.E.2d 279, 285 (Ct. App. 2004). The court's decision to admit evidence will not be reversed on appeal absent an abuse of discretion. Id. Thus, this court looks to whether the trial court's decision was controlled by an error of law or was without evidentiary support. State v. Taylor, 360 S.C. 18, 23, 598 S.E.2d 735, 737 (Ct. App. 2004). If there is any evidence to support the trial judge's decision, the appellate courts will affirm it.” Id.
In order to admit blood or other fungible evidence, the State must prove a complete chain of custody, as far as practicable, tracing possession of the evidence from the time it was taken until the time it was analyzed. South Carolina Dep't of Soc. Servs. v. Cochran, 364 S.C. 621, 628-29, 614 S.E.2d 642, 646 (2005) (); State v. Carter, 344 S.C. 419, 424, 544 S.E.2d 835, 837 (2001) (). The evidence need not negate the most remote possibility of substitution, alteration, or tampering with the evidence, but rather must prove to a reasonable probability that the item is the same as, and not substantially different from, the object as it existed at the beginning of the chain.” Cochran, 364 S.C. at 629-30, 614 S.E.2d at 647. Generally, our courts have found evidence inadmissible only where there is a missing link in the chain of possession because the identity of those who handled the blood was not established as far as practicable. Carter, 344 S.C. at 424, 544 S.E.2d at 837; State v. Governor, 362 S.C. 609, 612, 608 S.E.2d 474, 475 (Ct. App. 2005). However, our supreme court has recently noted that it has never held the chain of custody rule requires every person associated with the procedure be available to testify or identified personally, depending on the facts of the case.” Cochran, 364 S.C. at 629-30, 614 S.E.2d at 647.
Nurse Shannon Mayes testified that she drew Fickens' blood in Trooper Riney's presence, placed the blood into an uncontaminated vial, sealed the vial, and gave the vial to Trooper Riney. Mayes stated she then witnessed Riney place the vial in an evidence box which he then sealed. Trooper Riney testified that he witnessed Nurse Mayes draw Fickens' blood and seal and initial the vial. Riney stated that after he received the vial from Mayes, he sealed it in an evidence box and then drove it to the locked evidence refrigerator at the Walterboro Highway Patrol office. Sergeant Brown opened the lock so Riney could place the box in the refrigerator, and then Brown locked it again. Riney testified that the following day Sergeant Brown unlocked the refrigerator so that Riney could retrieve the box and take it to the SLED laboratory in Columbia. According to Riney, the box was in the same condition as it was when placed in the refrigerator and was still sealed.
Riney stated that once at SLED headquarters in Columbia, a SLED technician took the evidence, unsealed the Styrofoam container in his presence, placed the still-sealed vial of blood in a heat-sealed bag, and sealed the bag in Riney's presence. The SLED technician then had Riney place his initials over the heat seal, and Riney placed the evidence in the locked refrigerator under the SLED technician's supervision. SLED toxicologist Laurie Shacker testified that the sealed evidence bag was brought to her by someone in the toxicology department from the locked refrigerator and that it was not tampered with in any way prior to her testing it.
Fickens objected to the admission of the blood alcohol test evidence, arguing the chain was not complete because the State did not present evidence of the identity of the person at SLED who took the evidence from the locked evidence refrigerator and gave it to Shacker. The trial judge denied the motion.
Although the identity of the SLED technician who transported the sealed blood evidence to Shacker was not identified, we believe the State established a sufficient chain of custody, as far as practicable, such that it proved, to a reasonable probability, that the blood was the same as, and not substantially different from, the [blood] as it existed at the beginning of the chain.” Cochran, 364 S.C. at 629-30, 614 S.E.2d at 647. The blood vial was sealed by Nurse Mayes, maintained in the Highway Patrol's locked evidence refrigerator, transported to SLED by Trooper Riney while still in its orginial sealed condition, placed in another heat-sealed evidence bag at SLED and then placed by Trooper Riney in the evidence refrigerator, and then obtained by Shacker, still in its sealed condition and un-tampered with. Thus, the State reasonably established a complete chain of possession and that the evidence was still in the same condition when it was tested as it was when originally obtained from Fickens in the hospital.
Further as previously discussed, our state supreme court has recently noted that, depending on the circumstances of a particular case, the failure to identify one person involved in the chain of custody may not render the evidence inadmissiable. In Cochran, the Department of Social Services sought the termination of a mother's parental rights based, in part, on her failure of two drug tests. Mother complained that DSS failed to establish a complete chain of custody over her blood samples because the identity of the courier who transported the blood from the collection site to the testing facility was unknown. The court noted evidence was presented that the vials were sealed at the collection site and arrived at the testing facility still in a sealed condition. Cochran, 364 S.C. at 629, 614 S.E.2d at 646. The court also...
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