Charles Gilbert Taylor v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Fitzpatrick
Argued at Alexandria, Virginia
CHARLES GILBERT TAYLOR
v. Record No. 1977-94-4 MEMORANDUM OPINION *
BY JUDGE SAM W. COLEMAN III
COMMONWEALTH OF VIRGINIA JULY 18, 1995
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Richard B. Potter, Judge
JoAnne B. Butt for appellant.
Robert H. Anderson, III, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on brief),
for appellee.
Charles Gilbert Taylor was convicted by a jury of
involuntary manslaughter. He contends that the trial court erred
by admitting into evidence the results of a blood alcohol serum
test because the Commonwealth did not prove an unbroken chain of
custody for the blood sample and did not prove that the method
for drawing and testing the blood sample was reliable. For the
reasons that follow, we affirm the trial court's determinations.
Charles Gilbert Taylor drove his pickup truck across the
center line of the highway and struck another vehicle head-on,
killing the car's driver. John Whitcomb, an FBI special agent,
witnessed the accident. Whitcomb, while assisting Taylor from
his truck, noticed a very strong odor associated with alcoholic
beverages on Taylor's breath. Another witness, Tawana Mack, who
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
assisted Whitcomb, also noticed the smell of alcoholic beverages
from inside the truck. Greg Duvall, a Virginia State Trooper who
also assisted Taylor from the truck, observed that Taylor was
"unsteady on his feet" and had "an obvious odor of alcohol about
him." Mark Chadwick, an emergency medical technician at the
scene, noticed a strong odor of alcohol on Taylor's breath.
At the hospital, Deborah Oaks, an emergency room nurse,
tended to Taylor. Because Taylor was a trauma patient, Oaks was
required to take a sample of his blood. She cleansed his arm
with a seventy percent isopropyl alcohol solution and wiped the
area dry with a sterile four-by-four gauze pad. Oaks drew the
blood, injected it into sealed vials, placed Taylor's name and
hers on the vials, placed the vials on Taylor's stretcher, and
waited with him. This area of the emergency room was accessible
only to physicians and to hospital employees.
Oaks testified that shortly after placing the vials on the
stretcher, she "made sure they [the vials] were taken" to the
hospital laboratory for analysis. The laboratory was located one
hundred feet from where Taylor was on the stretcher. Oaks could
not remember or identify the person who took the blood vials to
the lab. Jean Scott, a medical technologist, testified that she
received the blood vials at the lab and performed the blood serum
analysis on the sample. Scott was not able to remember who
brought the blood vials to the lab. She said, "I'm not sure
whether an emergency room staff member brought it to the lab or a
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lab staff member brought it to the lab."
At trial, Nurse Oaks testified that the procedure she used
for cleansing Taylor's arm and drawing his blood is a standard
and customary procedure. She acknowledged, however, that had
Taylor been brought to the hospital by police for a "legal" blood
alcohol test, rather than as a trauma patient, she would have
cleansed his arm with soap and water. Jean Scott, the medical
technologist, testified that the manufacturer of the machine that
the hospital uses for measuring blood alcohol content recommends
"that [when taking blood for 'legal' purposes,] we use soap just
in the off chance that the alcohol swab could cause some
contamination." Scott testified that the machine is calibrated
regularly and was in proper working order.
Dr. Anh Huynh, a state toxicologist, testified that the
blood alcohol test results showed that when Taylor's blood was
drawn, the serum contained 181.6 milligrams of alcohol per
deciliter of blood. He equated this amount to a whole blood
alcohol level (B.A.C.) of .155. He stated that a B.A.C. of .155
would affect a person's perception, vision, judgment, and
coordination. Dr. Huynh testified that a person with that
quantity of alcohol in his blood "would [have] some difficulties
of walking straight" and that "also the manner you brake or you
swerve the car" would be affected.
I. CHAIN OF CUSTODY
Taylor contends the chain of custody of the blood sample was
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broken because neither Nurse Oaks nor Jean Scott could account
for how or who handled or took the blood sample from the
stretcher to the laboratory.
A party proffering scientific test results performed upon a
substance must establish by a preponderance of the evidence that
the substance tested is authentic, that is, that it is the
substance which it is purported to be. See Ives v. Commonwealth,
184 Va. 877, 882, 365 S.E.2d 904, 906 (1946). Authentication
requires "proof of a chain of custody and a showing with
reasonable certainty that the item had not been altered,
substituted, or contaminated prior to analysis, in any way that
would affect the results of the analysis." Washington v.
Commonwealth, 228 Va. 535, 550, 323 S.E.2d 577, 587 (1984)
(emphasis added), cert. denied, 471 U.S. 1111 (1985). Only if a
"vital link in the chain of possession is not accounted for," is
the reasonable certainty requirement not met, "because then it is
as likely as not that the evidence analyzed was not the evidence
originally received." Robinson v. Commonwealth, 212 Va. 136,
138, 183 S.E.2d 179, 180 (1971), cert. denied, 454 U.S. 895
(1981).
[The Commonwealth] is not required to exclude
every conceivable possibility of
substitution, alteration, or tampering. All
that is required in order to establish a
chain of custody is that the Commonwealth's
evidence "afford reasonable assurance that
the exhibits at trial are the same and in the
same condition as they were when first
obtained."
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Pope v. Commonwealth, 234 Va. 114, 121, 360 S.E.2d 352, 357
(1987), cert. denied, 485 U.S. 1015 (1988) (quoting Smith v.
Commonwealth, 219 Va. 554, 559, 248 S.E.2d 805, 808 (1978)).
The Commonwealth's evidence reasonably assures that Taylor's
blood samples taken by Oaks were the same samples tested by Scott
and that they had not been altered, tampered with, or
substituted. Oaks took the blood sample, placed it in vials,
labeled the vials, placed the vials on a stretcher with Taylor,
and waited there with him. Access to the area was limited to
physicians and employees. Scott stated that either an emergency
room staff member or a lab staff member brought the sealed vials,
which contained the blood sample, to her at the lab. The vials
were carried only one hundred feet from the stretcher to the lab.
The links in the chain of possession in the hospital were
sufficiently accounted for to provide reasonable assurance that
the blood sample had not been altered, adulterated, or
substituted. The evidence is sufficient to support the trial
court's finding that the blood sample was authenticated as
Taylor's without being altered.
II. RELIABILITY OF BLOOD TESTING
The appellant contends that the blood test result is invalid
because the nurse used an alcohol swab, rather than soap and
water, to cleanse Taylor's arm and, as a consequence, probably
contaminated the blood sample with isopropyl alcohol. Thus, he
argues, the trial court erred by admitting the blood test results
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into evidence.
The admissibility of evidence is within the sound discretion
of the trial court. We will not disturb the trial court's ruling
to admit evidence absent an abuse of discretion. Blain v.
Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988)
(citation omitted). "When scientific evidence is offered, the
court must make a threshold finding of fact with respect to the
[fundamental] reliability of the scientific method." Spencer v.
Commonwealth, 240 Va. 78, 97, 393 S.E.2d 609, 621, cert. denied,
498 U.S. 908 (1990).
Code § 18.2-268.5 requires that, when withdrawing blood for
purposes of a DUI prosecution under Code § 18.2-266, the area
from which blood is to be drawn must be cleansed with soap and
water, polyvinylpyrrolidone iodine, or benzalkonium chloride.
Because the DUI statutes specify the means for cleansing the
puncture area, failure to comply with the statutory requirement
necessitates that the prosecution be dismissed. See Brush v.
Commonwealth, 205 Va. 312, 136 S.E.2d 864 (1964), and Kyhl v.
Commonwealth, 205 Va. 240, 135 S.E.2d 768 (1968). The statutory
requirements of Code § 18.2-268 are to be strictly applied, Lutz
v. City of Richmond, 205 Va. 93, 97-98, 135 S.E.2d 156, 159-60
(1964), but the requirements apply only to DUI prosecutions under
Code § 18.2-266, Essex v. Commonwealth, 228 Va. 273, 322 S.E.2d
216 (1984), and not to an involuntary manslaughter prosecution
under Code § 18.2-36.
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In an involuntary manslaughter prosecution, the degree of
the driver's intoxication or impairment from alcohol ingestion is
relevant to a determination of the driver's "negligence, whether
ordinary, gross, or wanton" so as to demonstrate a reckless
disregard of human life. Id. at 283, 322 S.E.2d at 221-22. For
blood test results to be admissible to prove the degree of
impairment or intoxication, the evidence must prove "the
reliability of the procedures used," Essex, 228 Va. at 285, 322
S.E.2d at 223, that is, that the procedures utilized are likely
to produce a reliable result. The burden is on the Commonwealth,
as the proponent of the evidence, to prove that the procedures
used yielded a reliable result.
Nurse Oaks testified that, except when drawing blood for DUI
prosecutions, the traditional and customary procedure for
cleansing and sterilizing the puncture area is with an isopropyl
alcohol solution. She testified that before drawing the blood,
she dried the area with a sterile gauze pad. While no direct
evidence was offered that the procedure could not affect the test
results, from Oak's testimony, the fact finder could infer that
because the area was dry, no isopropyl alcohol remained to
contaminate the area or the blood sample and, therefore, that the
test results were accurate and reliable. Accordingly, the
Commonwealth met its burden of proving the reliability of the
testing procedure.
The evidence offered by Taylor concerning the recommended
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procedure by the manufacturer of the machine for testing goes to
the weight of the evidence and not its admissibility. See State
v. LaFountain, 231 A2d 635 (1967). The trial court did not abuse
its discretion by admitting the blood test results for the
purpose of proving the effects of alcohol ingestion upon Taylor.
Therefore, we affirm the involuntary manslaughter
conviction.
Affirmed.
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BENTON, J., dissenting.
To introduce a scientific analysis of blood, the proponent
of the evidence must first establish as a proper foundation for
the admission of the analysis a chain of possession of the blood
that was analyzed. Washington v. Commonwealth, 228 Va. 535, 550,
323 S.E.2d 577, 587 (1984), cert. denied, 471 U.S. 1111 (1985).
The rule is often stated as follows:
The basic rule for admitting demonstrative
evidence is that the burden is upon the party
offering the evidence to show with reasonable
certainty that there has been no alteration
or substitution of it. . . . However, "[t]he
requirement of reasonable certainty is not
met when some vital link in the chain of
possession is not accounted for, because then
it is likely as not that the evidence
analyzed was not the evidence originally
received."
Robinson v. Commonwealth, 212 Va. 136, 138, 183 S.E.2d 179, 180
(1971)(citation omitted). The evidence in this case failed to
establish a chain of possession.
The Commonwealth failed to present any evidence to account
for the handling of Taylor's blood from the time it was taken
from Taylor until the time it was delivered to the laboratory.
Nothing in the record or in the majority's opinion addresses the
void created by the failure to account for this vital link in the
chain of possession. Approving the admission of this evidence
violates the fundamental principle that "where the substance
analyzed has passed through several hands the evidence must not
leave it to conjecture as to who had it and what was done with it
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between the taking and the analysis". Rodgers v. Commonwealth,
197 Va. 527, 531, 90 S.E.2d 257, 260 (1955).
For these reasons, I would hold that the trial judge erred
in admitting the blood analysis report. Therefore, I dissent.
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