Opinion
ID No. 990921330.
Decided: December 11, 2000.
Christine Tunnel, Esquire, Deputy Attorney General, Department of Justice, 112 E. Market Street, Georgetown, DE 19947.
Ruth Matruder Smythe, Esquire, Assistant Public Defender, Office of the Public Defender, 14 The Circle, 2nd Floor, Georgetown, DE 19947.
Dear Counsel:
After reviewing your submissions concerning the above-referenced case, I have decided to consider the State of Delaware's appeal pursuant to 10 Del. C. § 9903, which leaves the decision of whether or not to take the appeal to the Court's discretion. For the reasons hereinafter set forth, I find that the Court of Common Pleas erred in its chain of custody ruling.
The statute reads:
The State may apply to the appellate court to permit an appeal to determine a substantial question of law or procedure, and the appellate court may permit the appeal in its absolute discretion. The appellate court shall have the power to adopt rules governing the allowance of the appeal; but, in no event of such appeals shall the decision or result of the appeal affect the rights of the defendant and he or she shall not be obligated to defend the appeal, but the court may require the Public Defender of this State to defend the appeal and to argue the case.
Nature and Stage of the Proceedings
This is an appeal brought by the State of Delaware ("State") of a decision of the Court of Common Pleas which excluded blood evidence in a Driving Under the Influence ("DUI") case due to chain of custody concerns raised under 21 Del. C. § 4177 (h)(3) and (4). This appeal is brought under 10 Del. C. § 9903, which gives the reviewing court absolute discretion whether or not to consider the appeal. Due to the importance of blood evidence in DUI cases and the fact that chain of custody could be an issue in most of those cases, I decided to consider the State's appeal.
Facts
John McDowell ("Defendant") was stopped for a possible DUI offense on September 24, 1999, and taken by Trooper Argo from the Delaware State Police to Beebe Hospital for a blood sample. He was arrested on a charge of driving under the influence. He was convicted (his second DUI conviction) in Justice of the Peace Court #3 and appealed to the Court of Common Pleas. At trial, Defendant made two objections regarding the chain of custody of this sample. The first objection concerned the phlebotomist who took the blood, and who was therefore arguably in the chain of custody of the evidence. He was not present to testify at trial even though Defendant specifically requested his presence in accordance with 21 Del. C. § 4177 (h)(4) and his name was not given to Defendant as part of discovery. The presence and identity of the phlebotomist were more of a concern in this matter because there was an inconsistency in the reported times of when the sample was taken. Trooper Argo testified that the phlebotomist drew the sample at 5:12 a.m. but the sealed sample kit stated it was taken at 5:18 a.m. The Court admitted the blood sample over Defendant's objection, relying on 21 Del. C. § 4177 (h)(3) and (4), which holds that only persons "necessary to establish the chain of custody" are required to be present, and the fact that the phlebotomist's name was mentioned twice in other discovery material.
The Court criticized the State for not specifically responding to Defendant's request, but found that there was no surprise to the Defendant. The State also pointed out that the Trooper was present the entire time the sample was taken.
The Court did, however, sustain Defendant's other chain of custody objection. After the sample was taken, it was placed in a locked evidence refrigerator at Troop 7 for five days until a Delaware State Police Forensic Analytical Chemist picked it up. The desk sergeants at the Troop controlled access to this refrigerator. The Defendant made a discovery request for the names and addresses of all persons who formed the chain of custody as well as a request that all of the persons in the chain of custody be present at trial, but the State failed to respond to these requests and did not obtain the presence of the desk sergeants. The Court determined that whoever is "in control of that evidence locker is part of the chain," and that 21 Del. C. § 4177 (h)(4) requires the presence of persons in the chain when specifically and timely requested by the defendant. The Court also concluded that Defendant's request was for identification of persons who had custody of the evidence, and that the State did not provide this information. Because the State did not require the presence of all of the desk sergeants and did not disclose any of their names per Defendant's request, the Court granted Defendant's Motion to Suppress. It is this decision that the State is appealing.
The sample was taken on September 24. 1999 at 5:12 or 5:18 a.m. and was picked up from Troop 7 on September 29, 1999 at 9:15 am.
Decision of the Court of Common Pleas
In granting Defendant's Motion to Suppress, the Court of Common Pleas relied on State v. Croce, Del. Super., Def. ID No. 9511004078, Carpenter, J. (May 14, 1997) (Mem. Op.). which found the plain meaning of 21 Del. C. § 4177 (h)(4), as it was then written, indicated that a phlebotomist is a person in the chain of custody. The facts in Croce were similar to those in the present case with respect to the absence of the phlebotomist (however, there was no discussion in Croce regarding whether others, such as desk sergeants, are part of the chain of custody).
The Court of Common Pleas found that the arresting officer "couldn't get into that locker without somebody either giving him the key, or opening the door for him to put the sample in. That person is part of the chain of custody, because again, once he had left the room and in the five days that ensued before the State Chemist picked up the sample, that sample was in control of one or more desk sergeants." The Court went on to find that because the desk sergeants were in control of the sample for those five days, 21 Del. C. § 4177 (h)(4) required them to be considered part of the chain of custody.
Discussion
The standard of review for this matter is an abuse of discretion inquiry. Loper v. State. Del. Supr., No. 580. Moore, J. (Jan. 3. 1994) (ORDER). This Court's decision serves only to clarify the interpretation of the statute and will not affect Defendant's interests. 10 Del. C. § 9903.
The Court in Croce specifically held that it would have decided differently had the words "necessary to establish the chain of custody" been included in the statute, as they were in 23 Del. C. § 2303 (l)(5) which concerns the operation of boats under the influence of alcohol. These exact words were added to 21 Del. C. § 4177 (h)(4) soon after Croce was decided. The Synopsis that accompanies the amendment of the statute states:
This Act relieves hospital personnel of having to appear and testify in criminal trials when they withdrew blood at a police officer's request. The testimony of the officer relating to the taking of the blood provides the necessary evidence of a procedure that requires only common knowledge and experience to understand and judge. The Act further ensures that claims regarding "chain of custody" do not force the appearance of hospital personnel by adopting the majority rule relating to the control of evidence. Thus, except in extraordinary circumstances, the only witness necessary would be the collecting and packaging officer and the forensic chemist who analyzed the blood unless it is shown that there is some reasonable evidence of tampering or misidentification. In turn, proper chain of custody can be § established without the testimony or certification of every person who handled the evidence.
House Bill Number 237, 139th General Assembly. May 8, 1997. This amendment changed subsection four of the statute to read:
In a criminal proceeding, the prosecution shall, upon written demand of a defendant filed in the proceedings at least 15 days prior to the trial, require the presence of the Forensic Toxicologist, Forensic Chemist, State Police Forensic Analytical Chemist, or any person necessary to establish the chain of custody as a witness in the proceeding. The chain of custody or control of evidence defined in this section is established when there is evidence sufficient to eliminate any reasonable probability that such evidence has been tampered with, altered or misidentified.21 Del. C. § 4177(h)(4) (italics indicate the new language added by the amendment after Croce was decided). Because of the subsequent changes to the statute, the Court's reliance on Croce in determining who constituted the chain of custody was misplaced. The new statute does not require the presence of everyone who was in the chain of custody-unless there is reason to believe the evidence was tampered with.
Defendant argues that the two different times that were given for when the sample was taken, and the five day period that the sample resided in the evidence locker, trigger the reasonable probability that the evidence was tampered with or misidentified. However, a six-minute difference does not of itself indicate tampering or misidentification since the police officer and phlebotomist were both present during that gap and for the drawing of the blood. The burden on the State to prove proper handling of evidence is a lenient one, and the State only has to show to a reasonable probability that the evidence was not tampered with. Whitfield v. State, Del. Supr., 524 A.2d 13 (1987); see e.g. Tilghman v. State, Del. Supr., 734 A.2d 160 (1999) (holding that the chain of custody was established even though there was a two-day gap from when the evidence was collected to when it was logged in to the police evidence locker, and the person testifying to the procedures used in logging in evidence was a new employee. hired four months after the defendant was arrested). Defendant does not provide sufficient evidence of inconsistencies or tampering that would require the presence of the phlebotomist and the desk sergeants.
Finally, this Court notes that the Trial Judge's decision to exclude the evidence was based in part on the State's failure to provide Defendant with discovery information he had requested — specifically, the name and address of the phlebotomist and the names and addresses of all people who had access to the evidence refrigerator during the five days that the blood sample resided at Troop 7, If the Judge had ruled specifically that she excluded the evidence because of the discovery violation, this Court could not have found that she abused her discretion, since remedies for such violations are left to the discretion of the trial judge under Court of Common Pleas Criminal Rule 16(d)(2) and Doran v. State, Del. Supr., 606 A.2d 743 (1992).
The Court of Common Pleas stated, "The request was also for identification. There was no in formation provided to counsel under that request, as far as the identification of the custodian at the troop. nor has that person been produced to testify."
Conclusion
In light of the language of the Croce decision and the wording and purpose of the amendments to 21 Del. C. § 4177 (h)(4). I find that the trial judge abused her discretion in excluding the blood evidence because of chain of custody concerns. If there is no-evidence of improper handling, 21 Del. C. § 4177 (h) does not require the presence of the desk sergeants who had access to the evidence locker because they are not "necessary to establish the chain of custody."