Whetstone v. State

• Decision Date: 24 November 1981
• Docket Number: 3 Div. 321
• Citation: 407 So.2d 854
• Parties: Willie WHETSTONE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 854

407 So.2d 854

Willie WHETSTONE v. STATE.

3 Div. 321.

Court of Criminal Appeals of Alabama.

Nov. 24, 1981.

Charles Price, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and Jeffrey H. Long, Asst. Atty. Gen., for appellee.

DeCARLO, Judge.

Murder; ten years.

This is a vehicular homicide case. The appellant was indicted under Ala.Code § 13A-6-2(a)(2) (Supp.1977) for causing the death of another person while recklessly engaging in conduct which created a grave risk of death to a person other than himself under circumstances manifesting extreme indifference to human life. The appellant was charged specifically with causing the deaths of Mary Miniard and Floyd Edwards by his operation of a motor vehicle while under the influence of intoxicating liquors or narcotic drugs.

Taken in the light most favorable to the State, the evidence tended to show that the appellant's Pontiac collided with a Pinto automobile, killing the occupants in the Pinto, Floyd Edwards and Mary Miniard, at approximately 1:00 A. M. on May 3, 1980. In checking the extent of the appellant's injuries as he lay "slumped over the wheel," the officers who arrived on the scene detected a "strong odor of an alcoholic nature about his person." Hospital records were introduced into evidence, over objection which, indicated that appellant's blood had a .23% ethyl alcohol content. There was no suggestion that either of the victims were under the influence of drugs or alcohol.

The appellant testified in his own behalf that he had had two mixed drinks and half a beer at a party over a period of approximately three and a half hours prior to the accident. He stated that he had his last drink "twenty or thirty minutes" before he left the party.

The crux of this appeal concerns what effect the admission of hospital records has on proving the chain of custody of evidence. Specifically, we are faced with the question whether the introduction of hospital records in conformity with Ala.Code §§ 12-21-5, -6, -7, (1975) dispenses with the requirement that the chain of custody for a blood sample allegedly taken from the appellant be proved.

Mr. Robert L. Baines, a medical laboratory technologist testified for the State that Alabama Reference Laboratories, Inc., the company by whom he was employed, did "blood work" for St. Margaret's Hospital in Montgomery. Defense counsel questioned the witness on voir dire examination and ascertained that Mr. Baines had not taken the blood sample in question from the appellant. Defense counsel then vigorously objected to any further testimony by Mr. Baines concerning the blood sample until it was "shown that someone duly qualified and licensed took the blood sample from him."

Outside the presence of the jury, defense counsel argued that the State had not followed the guidelines set out in Patton v. City of Decatur, 337 So.2d 321 (Ala.1976), relating to Ala.Code § 32-5-193 (1975) ¹, which deals with the proper methods approved by the State Board of Health for the admission of intoxication results. This statute is commonly known as the Alabama Implied Consent Law.

The assistant district attorney informed the trial court that "the State is not proceeding under the terms of the Implied Consent Law. We have no intention whatsoever of trying to get into evidence the presumptions that arise therefrom."

Indeed, there is no requirement that § 32-5-193 be used as the exclusive means for admitting intoxication test results. The Alabama Supreme Court recently stated in McGough v. Slaughter, 395 So.2d 972, 975 (Ala.1981):

"The legislature has by statute remedied many of the problems involved in laying a foundation for admission of intoxication test results, at least where the action arises from operation of a vehicle. See Code 1975, § 32-5-193.

"Under (such a statute), the questions of relevancy, and to a large extent of weight, of the evidence, have thus been legislatively resolved. The (statutory intoxication) presumptions have been upheld by the courts ... and the prescription for test procedures adopted by the state health agency had been taken as acceptance of the general reliability of such procedures in showing blood-alcohol content.

"E. Cleary, McCormick's Handbook on the Law of Evidence § 209 at 513 (2nd ed. 1972) (footnotes omitted).

"A party offering results from tests shown to be given in conformity with the statute is relieved of the burden of laying the extensive predicate generally necessary for admission of scientific test results."

While it is unnecessary for the prosecution to resort to a chemical test in order to make out a prima facie case of vehicular homicide, Patton, 337 So.2d at 324; Commander v. State, 374 So.2d 910, 917 (Ala.Cr.App.1978), writ quashed, 374 So.2d 921 (Ala.1979), if a party wishes to have the results of a blood alcohol test admitted into evidence he has two choices; either he must show that the tests were taken in conformity with § 32-5-193, or he must lay the proper foundation for their admission under general evidence principles. McGough, 395 So.2d at 977. The admission of blood alcohol test results for which neither of these procedures is followed results in reversible error. McGough, supra.

Since the State conceded that it was not proceeding under § 32-5-193 because it could not meet the requirements of that section, it was incumbent upon the State to lay a proper foundation for the admission of the appellant's blood alcohol test results under general evidence principles. McGough, supra. Following this alternative it was necessary for the State to establish that procedures were followed which would insure the reliability of the test results. In order for the test results to be reliable, and thus relevant to the matter at issue, the results must be from generally accepted tests conducted under conditions which do not impeach the reliability of the testing procedure. McGough, 395 So.2d at 977. The burden of laying the predicate generally necessary for the admission of scientific test results is extensive, McGough, supra.

With these principles in mind, we must now look to the record to see how the State attempted to meet its burden of proof under general rules of evidence. After the State's admission that it was not proceeding under § 32-5-193, the following exchange occurred:

"MR. PRICE: He's going to have to show the chain, so he's going to have to bring her in.

"MR. BELL: Judge, on the second page of this document that I have here, and this is really all I care about getting into evidence, it shows that a blood alcohol test was ordered.

"On the page, on State's Exhibit No. 4, I have another medical record which shows, 5-3-80, which was the date of the accident, at 4:20 A. M., and this is a record from St. Margaret's Hospital, we show that a specimen was taken from a Willie Whetstone at the Emergency Room. The doctor was Chastain, which is the same doctor that appears on the medical records. The test was a blood alcohol test...."

"MR. PRICE: Your Honor, irrespective of the witness, of Dr. Chastain or Mr. Baines, Mr. Bell is going to have to show the chain, or what happened to that blood test after Dr. Chastain took the blood and then submitted it to whomever he submitted it to, and how it came into the possession of Mr. Baines.

"THE COURT: What about that chain, Mr. Bell?

"MR. BELL: Judge, it's the State's position that if this witness can identify the blood sample that he examined as being the same blood sample as appears on that record and as appears on that record then any chain that there might have been would go to the weight of the blood alcohol test as opposed to the admissibility."

Continuing on voir dire examination by defense counsel, Mr. Baines testified that he received the blood sample in question from his immediate superior, Mrs. Brenda Durden. Mr. Baines stated that he did not know from whom Mrs. Durden had received the blood sample. Defense counsel then remarked:

"Now, there's no way he can testify that's the same blood sample. You've got too many people in between."

Mr. Baines then testified for the State that the blood sample he tested "was marked with the date that it was drawn by the patient's name, the hospital it came from, and the physician who ordered it." He stated that the above information on the vial of blood he examined corresponded with the hospital records in question. Mr. Baines's voir dire was concluded with the following exchange:

"MR. PRICE: Judge, those medical records do not cover any action by Mrs. Durden. The medical records from the hospital simply show, catalogue, what the physician and nurses did, and I admit the medical records can come in under this Code of Alabama but they don't cover Mrs. Durden's actions of what she did with the blood sample after it was given to her.

"Now, the chain has to be established.

"MR. BELL: Judge, it's the State's position that what we have there is a business record-

"THE COURT: And you're saying the business records establish the chain?

"MR. BELL: I'm saying that I could introduce the business records apart from anything else and of such and such and it would be admissible. In my opinion and judgment, that's the purpose of the business record is establishing things that were done in the ordinary course of business.

"MR. PRICE: The, Judge, he cannot testify. He can introduce that business record, but Mr. Baines is not competent to testify about the blood test being taken and getting to him, and then I would conclude, and then not about the results of the blood test.

"The business record could be established simply to show business records, and there can be no testimony about them by Mr. Baines about the blood test being taken-"

The trial court decided to allow Mr. Baines to testify before the jury and to "determine later on whether to leave that testimony in." Mr. Baines was presented to the jury as "an expert witness on blood alcohol analyses."

Mr. Baines was permitted to testify...