Swanson v. State , 248 Ga. App. 551 ( 2001 )

Blackburn, Chief Judge,

concurring specially.

Although I agree with the judgment and analysis of the majority, I concur specially in order to set out the factual basis for the majority’s decision on Swanson’s chain of custody argument.

After a detailed review of the evidence, we cannot say that the trial court erred in holding that the State had produced sufficient chain of custody evidence. Swanson’s contentions as to opportunities for tampering with the evidence went to the weight of the evidence, not its admissibility. See Jordan v. State³ In the present case, as in Jordan, a significant amount of time had passed between the date of the incident and the time of trial (27 months herein and 14 months in Jordan). Rather than testifying as to their handling of Swanson’s blood samples, the majority of the witnesses testified to their normal procedure for handling blood samples in DUI cases. Small discrepancies can be explained by faulty memory rather than evidence of tampering. See id. (trial court’s admission of evidence was not clearly erroneous where it determined that contradictions in the arresting officer’s description of the initial packaging of the evidence and toxicologist’s description of the way the package looked when it arrived at the crime lab did not suggest tampering, but a faulty memory).

In the present case, Swanson contends that the chain of custody was not established because Judy DeCrisci’s testimony regarding the color of stoppers she would have used on top of the vials of blood contradicted Trooper Mathis’ and Dr. Brown’s testimony regarding the vials of blood tested. Trooper Mathis testified that he received the vials of blood in a biohazard bag and that they were topped with gray stoppers. Dr. Brown testified that he received at the crime lab two vials of blood topped with gray stoppers. Swanson relies on DeCrisci’s testimony wherein she testified that if she drew two vials of blood her normal procedure would have been to top the vials with one red stopper and one gray stopper. However, she further testified that if the evidence in the present case established that two vials of blood were drawn and both were topped with gray stoppers such evidence would not be cause for concern because sometimes a certain tube is requested or sometimes the hospital was out of red stoppers.

Swanson also contends DeCrisci’s testimony regarding the information which she put on the vials of blood did not match Dr. Brown’s description of the blood he tested. DeCrisci testified that she would put the person’s name, date, time, Social Security number, and her initials on each vial. On cross-examination by Swanson’s attorney, she testified that if all of the described information was not on the vial, she would not believe that it was the sample she took. Dr. Brown testified from a report prepared by the person who opened the package at the crime lab and assigned a laboratory case number to the sample. He explained that the crime lab would be interested in only the name on the blood vials; if there was other information on the blood vials, it would not be noted on the report. Dr. Brown could not remember specifically what information was on the vials of blood involved in this case other than what was noted on the report. Dr. Brown testified that the vials had the defendant’s name on them. He did not testify that the other information described by DeCrisci was not contained on the vials in addition to the name that was listed on the report.

Swanson argues that the testimony conflicted as to how the vials were taped and packaged. Officer Garrison was present in the room when DeCrisci drew blood from Swanson. He testified that “to the best of [his] recollection” DeCrisci drew two vials of blood and put them into a Styrofoam container. He further testified that he did not see DeCrisci tape up the vials or the box. DeCrisci, Trooper Mathis, and Dr. Brown testified that the two vials of blood were taped with transparent tape and put into a biohazard bag. Officer Garrison’s testimony is equivocal at best.

Swanson correctly points out the conflicts in the evidence as to who received the blood samples from DeCrisci. DeCrisci testified that she gave the samples to Officer Garrison. Officer Garrison testified that he left the sample with DeCrisci. Trooper Mathis testified that he picked up the blood from DeCrisci. DeCrisci was not sure who took the samples from the hospital, and she did not know whether Officer Garrison left the samples for Trooper Mathis. Such evidence would have supported a finding of a potential for tampering with the evidence. It does not, however, require a finding of a break in the chain of custody. See cases cited in majority.

Additionally, Swanson erroneously contends that Officer Garrison signed a form indicating that he received the blood samples. DeCrisci testified, and the record confirms, that the form signed by Officer Garrison requested that the blood tests be performed. It was not a receipt for the blood samples.

Swanson next contends that the chain of custody was not established because the blood was kept in the trunk of Trooper Mathis’ police car overnight and then kept in an unlocked refrigerator for several days before it was mailed by an unknown person. The evidence, however, supports a finding that from the time the blood samples were taken from the hospital, they were taped securely and placed in a sealed and taped biohazard bag. The evidence indicates that this bag was intact when the blood was received at the crime lab. »

Decided March 12, 2001 Head, Thomas, Webb & Willis, William C. Head, for appellant. N Stanley Gunter, District Attorney, Lynn Akeley-Alderman, William J. Langley, Assistant District Attorneys, for appellee.

Trooper Mathis testified that after leaving the blood samples in his trunk overnight he took them into the station and packaged them for mailing before leaving them in the station refrigerator. Trooper Mathis packaged the blood samples on a Saturday so they were not mailed until the following Monday or Tuesday. Trooper Mathis further testified that no one got into his patrol car overnight while the blood samples were in the trunk and that the public did not have access to the refrigerator where the packaged blood samples were left. See Sanders v. State⁴ and Floyd v. State⁵ cited by the majority. Any issue of spoliation of evidence is not before us.

Finally, Swanson contends that the chain of custody was not established because Dr. Brown’s testimony conflicted with Trooper Mathis’ testimony regarding how the blood samples were packaged for mailing. Again, the transcript authorizes a determination that any conflicts regarding the packaging of the samples were based on faulty memory rather than evidence of tampering. Trooper Mathis testified that he could not remember for sure but that he thought he packaged the blood samples in Styrofoam boxes for shipping. The station had switched policies as to how the samples were shipped. Trooper Mathis testified that he put the samples either in Styrofoam boxes or in metal cans. Dr. Brown testified that the blood samples arrived in a sealed metallic mailing cylinder. Contrary to Swanson’s argument, there was no conflict in the testimony of Dr. Brown and Trooper Mathis regarding the packaging of the blood vials because Trooper Mathis testified that he might have put the blood sample in a metallic mailing cylinder. Even if the alleged conflict had existed, it would not have been sufficient for a break in the chain of custody. See Jordan, supra.

Based on the foregoing testimony, the trial court’s decision to allow the test results into evidence was not clearly erroneous.

3 Jordan v. State, 223 Ga. App. 176, 182 (3) (477 SE2d 583) (1996).

4 Sanders v. State, 243 Ga. App. 216, 217-218 (1) (a) (534 SE2d 78) (2000).

5 Floyd v. State, 187 Ga. App. 27 (1) (369 SE2d 316) (1988).