William C. Williams v. State of Indiana , 2016 Ind. App. LEXIS 407 ( 2016 )

FILED
Nov 10 2016, 8:42 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Yvette M. LaPlante Gregory F. Zoeller
Keating & LaPlante, LLP Attorney General of Indiana
Evansville, Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
William C. Williams, November 10, 2016
Appellant-Defendant, Court of Appeals Case No.
82A04-1602-CR-295
v. Appeal from the Vanderburgh
Superior Court
State of Indiana, The Honorable Leslie C. Shively,
Appellee-Plaintiff. Judge
Trial Court Cause No.
82D01-1308-FB-1047
Vaidik, Chief Judge.
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Case Summary
[1] William C. Williams was charged with two counts of Class B felony operating a
vehicle with a schedule I or II controlled substance in his blood causing death.
One count was based on having marijuana in his blood, and the other count
was based on having methamphetamine in his blood. The jury convicted
Williams of both counts. Williams now appeals his methamphetamine-related
conviction only. Specifically, Williams contends that the State failed to
establish a chain of custody for his blood sample so as to allow the admission of
the results showing that his blood sample tested positive for methamphetamine.
In order to establish the chain of custody for Williams’ blood sample, the State
relied heavily on Exhibit 65, which the trial court admitted under the business-
records exception to the hearsay rule. Williams, however, claims that the trial
court abused its discretion in admitting Exhibit 65 because the State did not
properly authenticate it.
[2] We agree that the State did not properly authenticate Exhibit 65 either by a
certification that complied with Indiana Evidence Rule 902(11) or by a records
custodian who testified that the records were made at or near the time by—or
from information transmitted by—someone with knowledge and that they were
kept by the lab in the ordinary course of business. Without Exhibit 65, the State
cannot establish the chain of custody for the sample of Williams’ blood that
tested positive for methamphetamine. We therefore reverse Williams’
conviction based on having methamphetamine in his blood.
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Facts and Procedural History
[3] Around 8:00 p.m. on August 6, 2013, Williams was driving his motorcycle with
his girlfriend, Nancy Parsons, as his passenger. They had been at a funeral
home in Evansville for Williams’ sister’s viewing and were on their way to go
line dancing when Williams ran into the back of a van that was stopped at an
intersection. Nancy was ejected from the motorcycle and later died from her
injuries. Williams was transported to the hospital, where he consented to a
blood draw. The Indiana State Department of Toxicology tested Williams’
blood, and it tested positive for THC. The Department of Toxicology sent a
sample of Williams’ blood to NMS Labs in Pennsylvania for additional testing.
NMS Labs issued a toxicology report showing that Williams’ blood sample
tested positive for methamphetamine.1 See Ex. 65.
[4] The State charged Williams with Count I: Class B felony operating a vehicle
with a Schedule I or II controlled substance (marijuana) in his blood causing
death and Count II: Class B felony operating a vehicle with a Schedule I or II
controlled substance (methamphetamine) in his blood causing death.2 At trial,
Williams testified that he did not know how methamphetamine could have
been in his blood and objected to the admission of State’s Exhibit 65, which is a
192-page “Litigation Support Package” from NMS Labs containing, among
1
This testing also showed the presence of amphetamine, but only methamphetamine is relevant to this case.
2
The State also charged Williams with operating a vehicle while intoxicated causing death, but the trial court
granted Williams’ motion for a directed verdict on this count after the State’s case in chief.
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other documents, the toxicology report that shows his blood sample tested
positive for methamphetamine and the chain of custody for his blood sample.
Tr. p. 233-247, 307. Although all 192 pages were admitted into evidence, only
two pages—the actual toxicology report—were submitted to the jury.3
Williams, however, admitted smoking marijuana two days before the accident
and did not object to the toxicology report from the Department of Toxicology
showing that his blood tested positive for THC. Id. at 132, 300; Ex. 63. The
jury convicted Williams of both counts, and the trial court sentenced him to
eight years with two years suspended to probation on each count, to be served
concurrently.
[5] Williams now appeals his methamphetamine-related conviction only.4
Discussion and Decision
[6] Williams contends that the State failed to establish a chain of custody for his
blood sample “so as to allow the admission of the results of tests showing it
contained methamphetamine.” Appellant’s Br. p. 10. Regarding the chain of
custody for fungible evidence, including blood samples, the State bears the
burden of giving reasonable assurances that the evidence remained in an
undisturbed condition as it passed through various hands. Troxell v. State, 778
3
All 192 pages are labeled Exhibit 65(B), while the two pages are labeled Exhibit 65(A).
4
Williams says he is challenging both convictions; however, Exhibit 65 concerns only methamphetamine
(Count II). Williams does not challenge Exhibit 63, which concerns only marijuana (Count I).
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N.E.2d 811, 814 (Ind. 2002). The State need not establish a perfect chain of
custody, and once the State strongly suggests the exact whereabouts of the
evidence, any gaps go to the weight of the evidence and not to its admissibility.
Id.
[7] In order to establish the chain of custody for Williams’ blood sample, the State
relied heavily on Exhibit 65, see Appellee’s Br. p. 16, which the trial court
admitted under the business-records exception to the hearsay rule, see Tr. p.
233-47. Williams argues, however, that the trial court abused its discretion in
admitting Exhibit 65 because the State did not properly authenticate it.
[8] Indiana Evidence Rule 902(11) allows the self-authentication of business
records that meet the requirements of Indiana Evidence Rule 803(6), the
business-records exception to the hearsay rule, as shown by a certification under
oath from a business records custodian or another qualified person. Evidence
Rule 902(11) provides:
The following items of evidence are self-authenticating; they
require no extrinsic evidence of authenticity in order to be
admitted:
*****
(11) Certified Domestic Records of a Regularly Conducted
Activity. Unless the source of information or the circumstances
of preparation indicate a lack of trustworthiness, the original or a
copy of a domestic record that meets the requirements of Rule
803(6)(A)-(C), as shown by a certification under oath of the custodian or
another qualified person.
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(Emphasis added). The certification should set forth the signer’s qualifications
and be notarized in order to avoid any issues concerning the identity of the
person who signed it. See 13B Robert L. Miller, Jr., Indiana Practice, Courtroom
Handbook on Indiana Evidence, Rule 902 (2015-16 ed.).
[9] Thus, for a document to be self-authenticated under Evidence Rule 902(11), the
proponent must show that the requirements of the business-records exception to
the hearsay rule are met. Those requirements are:
(A) the record was made at or near the time by—or from
information transmitted by—someone with knowledge;
(B) the record was kept in the course of a regularly conducted
activity of a business, organization, occupation, or calling,
whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or
another qualified witness, or by a certification that complies with Rule
902(11) or (12) or with a statute permitting certification; and
(E) neither the source of information nor the method or
circumstances of preparation indicate a lack of trustworthiness.
Ind. Evidence Rule 803(6).
[10] Here, the Certification of Authenticity for Exhibit 65 submitted by the State
provides in relevant part:
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[11] The Certification of Authenticity is deficient because it contains only a notary
signature as “witness.” There is no signature by a records custodian or another
qualified person,5 and the certification does not set forth the qualifications of the
purported records custodian or other qualified person. Moreover, the
certification does not show that the records meet the requirements of Evidence
Rule 803(6)(A)-(C), that is, that they were made at or near the time by—or from
information transmitted by—someone with knowledge and that they were
made and kept by the lab in the ordinary course of business. Accordingly, the
Certification of Authenticity is insufficient to authenticate Exhibit 65 pursuant
to Evidence Rule 902(11).
5
In addition, the Certification of Authenticity was not made under the penalties of perjury. See Speybroeck v.
State, 875 N.E.2d 813, 820 n.7 (Ind. Ct. App. 2007), reh’g denied; In re Paternity of H.R.M., 864 N.E.2d 442,
448 (Ind. Ct. App. 2007).
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[12] Alternatively, the State argues that it properly authenticated Exhibit 65 by the
testimony of NMS Labs analyst Jennifer Turri. To admit business records this
way, the proponent of the exhibit may call a witness who has a functional
understanding of the record-keeping process of the business with respect to the
specific entry, transaction, or declaration contained in the document. Rolland v.
State, 851 N.E.2d 1042, 1045 (Ind. Ct. App. 2006). The sponsor of an exhibit
need not have personally made it, filed it, or have firsthand knowledge of the
transaction represented by it; rather, the sponsor need only show that the
exhibit was part of certain records kept in the routine course of business and
placed in the records by one who was authorized to do so and who had
personal knowledge of the transaction represented at the time of entry. Embrey
v. State, 989 N.E.2d 1260, 1264-65 (Ind. Ct. App. 2013); see also Sandleben v.
State, 22 N.E.3d 782, 795 (Ind. Ct. App. 2014) (“[A] sponsor must still testify
about how the record was made, who filed it, and that the person who filed it
was both authorized to do so and had personal knowledge of the transaction.”),
trans. denied.
[13] Here, Turri—an analyst at NMS Labs, not a records custodian—testified that
she was the analyst who tested Williams’ blood, that she came up with a
finding, and that it is common to log findings in a report. She then identified
Williams’ toxicology report, which comprises only two pages of the 192-page
Exhibit 65. Turri explained that she did not prepare Williams’ toxicology
report. Rather, toxicology reports are computer generated after results are
submitted through NMS’s laboratory information system. Tr. p. 233; see also id.
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at 234 (“How it works is after we generate our results . . ., it’s all electronic. . . .
I don’t physically make this report. But this is how the company does it.”).
[14] Turri’s testimony, however, only partially explains how the two-page
toxicology report was created (that is, by computer) and does not show that the
record was made at or near the time by—or from information transmitted by—
someone with knowledge and that it was kept by the lab in the ordinary course
of business. See Evid. R. 803(6) (“all these conditions [must be] shown by the
testimony of the custodian or another qualified witness . . . .”). In addition,
Turri’s testimony does not address the other 190 pages of Exhibit 65, which
include the critical chain-of-custody evidence for Williams’ blood sample.
Turri’s testimony, therefore, does not authenticate Exhibit 65. Without Exhibit
65, the State cannot establish the chain of custody for Williams’ blood sample.
[15] Anticipating our conclusion that the State failed to establish the chain of
custody for Williams’ blood sample, the State “requests that [we] affirm
Williams’ conviction on count I, causing death when operating a motor vehicle
with” marijuana in his blood. Appellee’s Br. p. 20 n.9. Accordingly, we
reverse Williams’ conviction on Count II, which is based on the
methamphetamine evidence, and affirm Williams’ conviction on Count I,
which is based on the unchallenged marijuana evidence.6
6
In light of this result, we do not address Williams’ argument that he could be sentenced on only Count I or
Count II because “only one accident and one death was involved.” Appellant’s Br. p. 16.
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[16] Reversed in part.
Baker, J., and Najam, J., concur.
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