Thompson v. State

HOWARD EDGAR THOMPSON, III v. STATE OF MARYLAND

No. 1890

No. 1893

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019

March 29, 2021

Circuit Court for Prince George's County

Case Nos. CT180042X & CT190528X

UNREPORTED

Fader, C.J., Graeff, Alpert, Paul E. (Senior Judge, Specially Assigned), JJ.

Opinion by Alpert, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Following a jury trial in the Circuit Court for Prince George's County, the appellant, Howard Edgar Thompson, III, was convicted of criminally negligent manslaughter and negligent homicide by motor vehicle while under the influence of alcohol per se. The circuit court imposed concurrent sentences of two years' incarceration, all but twelve months suspended, and two years' supervised probation. Thompson timely appealed and presents the following three issues for our review, which we quote:

1. Did the trial court abuse its discretion when it overruled defense counsel's chain of custody objection and permitted the State to introduce Brooke Welsh's report, which contained the results of her blood alcohol analysis?

2. Did the trial court err and/or abuse its discretion when it permitted Ms. Welsh to testify about the results of her blood alcohol analysis, when her testimony was not relevant and was more prejudicial that probative?

3. Did the trial court abuse its discretion when it overruled defense counsel's objection to improper and prejudicial remarks the prosecutor made during her rebuttal closing argument?

We answer Thompson's questions in the negative and shall therefore affirm the judgments of the circuit court.

BACKGROUND

In the early morning hours of January 15, 2017, Thompson was driving Arden Hall, Tony Stratford, and himself home from Chapala's Restaurant, where they had consumed alcohol. When, at approximately 3:15 a.m., Thompson attempted to take the exit from eastbound Route 198 to northbound Interstate 95, he lost control of his vehicle, which veered off the roadway, struck several trees, and overturned. Hall, who had been sitting in the front passenger seat of the Jeep Cherokee that Thompson had been driving, waspartially ejected from the vehicle and pronounced dead at the scene. Although Stratford survived the collision, he sustained six fractured ribs and injuries to his knees.

Maryland State Troopers Jason Hill and Joseph Bagonis responded to the scene. Upon his arrival, Trooper Hill observed "fire board medical personnel assisting people who were still trapped in th[e] vehicle." Troopers Hill and Bagonis found Thompson sitting "away from the vehicle in the grass." As Troopers Hill and Bagonis asked Thompson what had caused the accident and how many occupants had been in the vehicle when the collision had occurred, they observed that his eyes were bloodshot and glassy, and that he spoke with a slur. They also detected a strong odor of alcohol on his breath. Trooper Bagonis further discovered multiple half-empty cans of "Ice" (an alcoholic beverage) on the ground, which, he testified, were "still cold to the touch."

Thompson was transported by ambulance to Prince George's County Hospital, where he was joined by Trooper Hill. At or around 6:43 a.m., approximately three and one-half hours after the collision, a hospital nurse drew a sample of Thompson's blood. Trooper Hill submitted that sample to the Chemical Testing for Alcohol Unit at the Maryland State Police Headquarters, where it was assigned a "chemical testing number" before being forwarded to the Maryland State Police Forensic Science Division. Brooke Welsh, a forensic chemist with the Forensic Science Division, tested the sample for blood alcohol concentration ("BAC"), which revealed that Thompson's BAC had been 0.08 grams of alcohol per 100 milliliters of blood at the time that the sample had been taken.

We shall include additional facts as necessary in our discussion of the issues presented.

DISCUSSION

I.

Thompson contends that the trial court abused its discretion in admitting, over objection, a BAC report prepared by Ms. Welsh. Without introducing the "Blood Collection Report" on which Trooper Hill had written Thompson's name, the time and date of the blood draw, and the location at which it was performed, Thompson argues, the sample that Ms. Welsh tested could either have belonged to another "Howard Thompson" or have been drawn on a date other than January 15, 2017.¹ The State, on the other hand, maintains that it established a reasonable probability that the sample that Ms. Welsh analyzed was the same as that drawn from Thompson on the date of the collision. It asserts that Thompson's argument to the contrary is purely speculative and "attack[s] at best the weight to be given to the BAC report," and not its admissibility.

The Circuit Court Proceedings

At trial, Trooper Hill testified that after he and Thompson had arrived at Prince George's County Hospital, another state trooper brought him a "Maryland State Police blood kit." He averred that the kit appeared new with no indication that it had been tampered with. Trooper Hill explained that blood collection kits are kept at the Maryland State Police College Park Barracks and must be signed out prior to being used. To furtherensure the integrity of blood samples, the cardboard mailing boxes in which the kits come—and in which they are sent to the lab—bear an expiration date.

Trooper Hill further testified to the following facts at trial: Upon receipt of the kit, he asked an emergency room nurse assigned to Thompson whether she would perform a blood draw. Once she agreed to do so, Trooper Hill handed her an iodine wipe, a syringe, and two glass vials from the kit. He then watched the nurse draw a sample of Thompson's blood. When the blood draw was complete, she handed Trooper Hill the blood-filled vials. Trooper Hill then affixed stickers "over top of the vials, covering the rubber seal to the vials." On those stickers, Trooper Hill had written Thompson's name and case number, as well as the date and time of the blood draw. He placed the vials in a "clamshell" container, which he then closed and sealed with evidence tape. Once the vials were secured in the clamshell, Trooper Hill filled out the top portion of a Blood Collection Report. On that form, Trooper Hill recorded the name of the police officer (his own), the name of the nurse who had conducted the blood draw, the name of the suspect ("Howard Thompson"), the time and date of the incident, as well as the time, date, and location of the blood draw. Trooper Hill used evidence tape to affix the Blood Collection Report to the clamshell container, which he then put in a biohazard bag. After sealing the bag with evidence tape, Trooper Hill placed it in a pre-addressed "cardboard mailing box," which he sealed with evidence tape and sent to "the lab" for testing.

Ms. Welsh clarified and supplemented Trooper Hill's testimony regarding the Maryland State Police Department's procedures for procuring, securing, storing, and identifying blood samples, testifying in pertinent part:

[T]he person is taken to the hospital, blood is drawn, and that blood is then sent to the Chemical Testing for Alcohol Unit at the Maryland State Police Headquarters.

From there, they give it a laboratory number, and then the kit is sent over to the Maryland State Police Forensic Science Division, where it is then stored in a secured location until we are able to actually go down and get the kit for analysis.

Once she is prepared to analyze a sample, Ms. Welsh continued:

The kit comes back, and we verify what is on what is called a Form 34, which is just basically a sheet of paper stating that this blood came from so and so on this date, from this hospital, et cetera. That ... form matches what is on the kit.

The kit itself is sealed. I then open the kit up. Inside there is a clamshell that is also sealed, that is what actually contains the two blood tubes. I then open the clamshell, verify what is actually on the Form 34 is correct, again, identification of the actual blood tubes, the clamshell, and the kit.

Addressing the case at hand, Ms. Welsh confirmed that, on March 22, 2017, she received a sealed clamshell that was "marked as ... belonging to Howard Thompson." Upon testing the blood sample contained therein, she testified, the "specimen was found to contain an alcohol concentration of 0.08 grams of alcohol per 100 milliliters of blood." Ms. Welsh was unable to produce the blood kit, as it was discarded pursuant to the Maryland State Police Forensic Science Division's standard operating procedure. She did, however, retain a report that she had written indicating the test results. When the Statemoved to introduce that report into evidence, Thompson objected on chain of custody grounds. The State rejoined that it could establish chain of custody through Ms. Welsh's testimony that the clamshell containing the blood sample that she had tested bore the same case number that Trooper Hill had "put ... on the outside of the ... clamshell." The court conditionally overruled defense counsel's objection, stating: "[T]he court finds the bare minimum has been established subject to you establishing the sequence numbers that you said. If you establish that, then the court will admit the exhibit over the defense objections." Although the State was unable to elicit the proffered testimony, Ms. Welsh did confirm that Thompson's name had appeared on the Blood Collection Report that had been attached to the clamshell containing the blood sample at issue. Ms. Welsh further testified that, upon receipt of Thompson's clamshell, the Chemical Testing for Alcohol Unit assigned it a chemical testing number, which corresponded to the sample that she had tested. More generally, she averred:

The information that is on the clamshell was verified,

...