State v. Rowell

S
                    THE STATE OF SOUTH CAROLINA
                        In The Court of Appeals

            The State, Respondent,

            v.

            Adam Rowell, Appellant.

            Appellate Case No. 2018-000022



                        Appeal From Greenwood County
                      Donald B. Hocker, Circuit Court Judge


                              Opinion No. 5832
                  Heard September 22, 2020 – Filed July 7, 2021


                                  AFFIRMED


            Billy J. Garrett, Jr., of The Garrett Law Firm, PC, Carson
            McCurry Henderson, of The Henderson Law Firm, PC,
            Jane Hawthorne Merrill, of Hawthorne Merrill Law,
            LLC, and Clarence Rauch Wise, all of Greenwood, all
            for Appellant.

            Attorney General Alan McCrory Wilson and Assistant
            Attorney General Jonathan Scott Matthews, both of
            Columbia, and Solicitor David Matthew Stumbo, of
            Greenwood, all for Respondent.


LOCKEMY, C.J.: Adam Rowell appeals his convictions for felony driving under
the influence (DUI) resulting in death and felony DUI resulting in great bodily
injury. On appeal, Rowell argues the trial court abused its discretion in admitting
blood samples into evidence without the proper chain of custody and because the
samples were taken (1) after 50% of Rowell's blood volume was replaced, and (2)
after 150% of Rowell's blood volume was replaced. Rowell also asserts the trial
court erred in failing to conduct an evidentiary hearing with a juror who failed to
disclose his pending charges during voir dire. We affirm.

FACTS/PROCEDURAL HISTORY

On November 15, 2014, Rowell was in a head-on automobile accident, which
seriously injured Matthew Sanders and killed Jeremy Cockrell. Cockrell was
driving a red pickup truck with Sanders in the passenger seat, and Rowell was in a
dark blue pickup truck. Following the collision, Rowell was indicted for felony
DUI resulting in death and felony DUI resulting in great bodily injury.

During voir dire, the trial court asked, "[Has] any member of the jury panel or any
member of your immediate family members or close personal friends ever been
arrested and charged with any criminal offense through whatever state, local or
federal law enforcement agency?" The trial court asked another nine questions
before asking the jurors to approach the bench if any of the questions applied to
them. Juror 164 did not respond and was seated on the jury.

At trial, Sanders testified he and Cockrell were driving to Greenwood when
Rowell's truck crashed into them. Cockrell died from blunt force trauma at the
scene. Officer Kelly Anderson, a member of the Multidisciplinary Accident
Investigation Team (MAIT), explained the collision occurred because Rowell's
truck drifted into Cockrell's lane. According to the MAIT investigation, one
second prior to the collision, Rowell was traveling at sixty-nine miles per hour and
Cockrell's truck was traveling at twenty-four miles per hour.

Emergency responders testified they could smell alcohol when they arrived. Open
and unopened beers were in Rowell's truck, spilled alcohol was on Rowell's
floorboard, and multiple beer cans were on the ground near the collision. Rowell,
who was also seriously injured in the collision, received 2000 milliliters of
intravenous (IV) fluid and a 500 milliliter blood transfusion on site, and was
airlifted to Greenville Memorial Hospital. The flight records show the helicopter
arrived at the hospital at 8:59 p.m.

The trial court held an in camera chain of custody hearing to address whether
blood drawn from Rowell when he arrived at the hospital (Sample A) was
admissible. Angela Waites, the flight nurse, stated it took twenty-four minutes to
get Rowell to Greenville Memorial Hospital. She testified she observed Amanda
Baker, an emergency room (ER) nurse, draw Sample A and believed it was drawn
from Rowell's right arm because Baker was standing on Rowell's right-hand side.

Nurse Baker testified she did not recall Rowell as a patient because she cares for
and draws blood samples from hundreds of patients. She explained that Rowell's
medical documentation indicated Dr. Bradley Snow took Sample A from a central
line and handed it to her. Nurse Baker testified that after blood is drawn from a
central line, a technician takes it to the lab. Bill Evans was the technician listed on
the medical records. Rowell's medical records indicated his blood was drawn at
9:08 p.m.; however, the hospital's audit trail indicated it was drawn at 8:54 p.m.

Robert Smith, the lab technician at Greenville Memorial Hospital, testified that
according to the audit trail for Sample A, he received it in the lab at 9:24 p.m.
Smith did not remember receiving this sample specifically because of the large
number of specimens he regularly tested. He testified it was hospital policy to
hand-deliver ER specimens to the lab and test them right away.

Dr. John Reddic, an expert in clinical chemistry from Greenville Memorial
Hospital, testified the hospital's audit trail showed Nurse Baker drew Sample A and
Robert Smith received it for testing. According to Reddic, Sample A showed a
blood alcohol concentration (BAC) between .175 and .189. Dr. Reddic noted
Sample A was controlled and handled within the hospital's normal protocol.

Rowell argued the conflicting time reports in the medical records suggested there
were two separate blood draws, one at 8:54 p.m. and one at 9:08 p.m. However,
the State asserted there was only one audit trail for blood and the records did not
reflect a second draw. The trial court ruled the State established the chain of
custody, the audit trail reflected an 8:54 p.m. blood draw, and a discrepancy in the
notation of the time of the blood draw did not render the evidence inadmissible.
During trial, the relevant medical witnesses testified similarly to their in camera
testimony.

Dr. Reddic testified that a "clock slop" time discrepancy of several minutes can
occur where records have been created based on clocks that were not synced. He
also explained there is a lag time between when a doctor orders a blood draw, the
drawing of the blood, and the subsequent transport of the blood draw to the lab,
and "thirty minutes is appropriate."

Dr. Snow, Rowell's surgeon, testified that during surgery, Rowell received 3,150
milliliters of blood, 360 milliliters of plasma, 3,000 milliliters of saline, and 3,000
milliliters of Plasma-Lyte. He stated 53% of Rowell's blood was replaced and he
would have died without the transfusion.

After Rowell's surgery, Officer Smith acquired a search warrant for Rowell's blood
(Sample B). Rowell objected to the admission of Sample B, arguing that when it
was taken, 52% of his blood had been replaced and a BAC test of that blood would
be unreliable. The trial court held another in camera hearing.

Dr. Jimmie Valentine, a defense expert, testified that when Sample B was drawn
from Rowell, he had received fluids that totaled 161.7% of his blood volume. He
explained Sample B was not an accurate indication of what Rowell's blood was
like during the collision. He stated that "any value that one would find or try to
attach to [Sample B] has very little scientific meaning because of th[e] volume that
[went] into him." Dr. Valentine explained Sample B included 4.9 milligrams per
liter of Benadryl, which was a toxic dose, and Rowell's medical records indicated
the hospital did not give him Benadryl. Further, he explained Sample B had
acetones, which was indicative of someone who was diabetic and Rowell's medical
records did not indicate he had diabetes. Dr. Valentine testified the methodology
and science used in the BAC testing was reliable; however, he questioned the
validity of the results.

Dr. Valentine stated the BAC from Sample B was consistent with Rowell's blood
having been diluted by transfusions. He explained a person with a BAC of .18
would normally have a BAC of .12 after four hours and that the dilution of the
blood due to a transfusion could explain why Sample B's BAC was .09. Dr.
Valentine agreed that Sample B would have included a percentage of Rowell's
blood that had remained in his system after the transfusion.

The trial court held that because Dr. Valentine did not attack the validity of the
methodology of the test, Sample B was admissible. Specifically, the trial court
clarified it did not find the results reliable, only that the methodologies and
procedures used in the testing were reliable.

Rowell testified he did not have diabetes, nor did he use Benadryl. He stated he
drank twenty-four ounces of beer approximately four hours before the accident.
The jury convicted Rowell of felony DUI resulting in death and felony DUI
resulting in great bodily injury. The trial court sentenced him to thirteen years'
imprisonment. After trial, Rowell learned Juror 164 had been arrested and charged
with a crime in Greenwood County shortly before his trial. Rowell moved for a
new trial, arguing—among other things—that Juror 164 failed to disclose his arrest
during voir dire. However, Rowell did not request that the trial court conduct an
evidentiary hearing.

At the hearing on Rowell's motion for a new trial, he argued he would not have
seated Juror 164 on the jury had he known of his arrest because the juror could
have had an incentive to help the State. Rowell stated he did not contact Juror 164
because Juror 164 was represented by counsel, who told them Juror 164 would not
be speaking with them. Rowell did not request a separate evidentiary hearing on
the juror issue and did not subpoena Juror 164. Following the hearing and before
the trial court issued an order, Rowell sent an email to the trial court requesting a
hearing with the juror.

The trial court denied Rowell's motion for a new trial. The trial court stated that on
its face, the question asked during voir dire was comprehensible to the average
juror; however, the court noted that it was the first of ten questions the juror had to
remember and the amount of time between question and answer "could be
confusing to the average juror." The trial court further opined because an arrest is
a public arrest record, the juror did not conceal his arrest. This appeal followed.

ISSUE ON APPEAL
1. Did the trial court err by admitting Sample A into evidence because the chain of
custody was insufficient?

2. Did the trial court err by admitting Sample A into evidence because 50% of
Rowell's blood had been replaced when Sample A was taken?

3. Did the trial court err by admitting Sample B into evidence because 150% of
Rowell's blood had been replaced when Sample B was taken and the sample
contained Benadryl and acetones?

4. Did the trial court err by failing to conduct an evidentiary hearing regarding a
juror who failed to disclose his pending criminal charges?

STANDARD OF REVIEW
"In criminal cases, appellate courts sit to review errors of law only . . . ." State v.
Robinson, 

410 S.C. 519

, 526, 

765 S.E.2d 564

, 568 (2014). "Because the admission
of evidence is within the sound discretion of the trial court, appellate courts should
not reverse the decision of the trial court absent an abuse of discretion." 

Id.

 "The
denial of a motion for a new trial will not be reversed absent an abuse of
discretion." State v. South, 

310 S.C. 504

, 507, 

427 S.E.2d 666

, 668 (1993).

LAW/ANALYSIS

I. Chain of Custody for Sample A
Rowell argues the inconsistency between the time that he landed at Greenville
Memorial Hospital and the time Sample A was taken established it was factually
impossible for Sample A to be Rowell's blood. He asserts the chain of custody was
not complete because Bill Evans walked Sample A from Nurse Baker to the lab but
never testified. Rowell also asserts an unidentified person brought the blood from
the ER to the lab and the sample was unaccounted for during a period of thirty
minutes. We disagree.

Our supreme court has held, "a party offering into evidence fungible items such as
drugs or blood samples must establish a complete chain of custody as far as
practicable." State v. Pulley, 

423 S.C. 371

, 377, 

815 S.E.2d 461

, 464 (2018)
(emphasis added) (quoting State v. Hatcher, 

392 S.C. 86

, 91, 

708 S.E.2d 750

, 753
(2011)). "Courts have abandoned inflexible rules regarding the chain of custody
and the admissibility of evidence in favor of a rule granting discretion to the trial
courts." Hatcher, 

392 S.C. at 94,

 

708 S.E.2d at 754

.

Our supreme court has stated it has "never held the chain of custody rule requires
every person associated with the procedure be available to testify or identified
personally, depending on the facts of the case." 

Id. at 93,

 

708 S.E.2d at 754

(quoting S.C. Dep't of Soc. Servs. v. Cochran, 

364 S.C. 621

, 629, 

614 S.E.2d 642

,
646 (2005)). "[W]e have consistently held that the chain of custody need be
established only as far as practicable, and we reiterate that every person handling
the evidence need not be identified in all cases." 

Id. at 95,

 

708 S.E.2d at 755

.

"Whether the chain of custody has been established as far as practicable clearly
depends on the unique factual circumstances of each case." 

Id. at 94,

 

708 S.E.2d at
754

 (quoting Cochran, 

364 S.C. at 629 n.1,

 

614 S.E.2d at 646 n.1

). "The trial
[court's] exercise of discretion must be reviewed in the light of the following
factors: '. . . the nature of the article, the circumstances surrounding the
preservation and custody of it, and the likelihood of intermeddlers tampering with
it." 

Id. at 94-95,

 

708 S.E.2d at 754-55

 (omission in original) (quoting United
States v. De Larosa, 

450 F.2d 1057

, 1068 (3d Cir. 1971)).
"In examining issues regarding the chain of custody, a mere suggestion that
substitution could possibly have occurred is not enough to establish a break in the
chain of custody." 

Id. at 94,

 

708 S.E.2d at 754

.

We hold the trial court did not err in admitting Sample A. During the in camera
hearing, the State presented evidence that (1) Sample A was drawn by Dr. Snow
via a central line; (2) it was handed to Nurse Baker; (3) Bill Evans was on duty and
walked Sample A to the lab, and (4) Robert Smith, the lab technician, received the
blood and facilitated the testing. This evidence identified who was in possession
of Sample A. Although Evans did not testify and most of the witnesses in the
chain did not recall these specifics, the State established through testimony and
documentation Sample A's chain of custody as far as practicable given the
circumstances.

Further, the circumstances surrounding the preservation and custody of Sample A
diminished the likelihood it was tampered with. See Hatcher, 

392 S.C. at 94-95,


708 S.E.2d at 754-55

 ("The trial [court's] exercise of discretion must be reviewed
in the light of the following factors: '. . . the nature of the article, the circumstances
surrounding the preservation and custody of it, and the likelihood of intermeddlers
tampering with it." (omission in original) (quoting De Larosa, 

450 F.2d at 1068

)).
Here, Sample A was collected for medical purposes to save Rowell's life and not
for any investigative purpose, which makes it unlikely it was tampered with. 

Id. at
95,

 

708 S.E.2d at 755

 ("The ultimate goal of chain of custody requirements is
simply to ensure that the item is what it is purported to be."); cf. Ex parte Dep't of
Health & Envtl. Control, 

350 S.C. 243

, 250, 

565 S.E.2d 293

, 297 (2002) ("The
trustworthiness of medical records is presumed, based on the fact that the test is
relied on for diagnosis and treatment.").

As to the timing of the draw for Sample A, the inconsistency within the medical
records and flight records regarding the landing time and the time of the blood
draw did not establish either a break in the chain of custody or that the blood was
from someone else. The factual circumstances of this case reflect that the exact
syncing of times between medical and flight personnel records was unlikely. A
brief time discrepancy between organizations does not alter the chain of custody
analysis because each person who possessed the sample was identified. See
Hatcher, 

392 S.C. at 94,

 

708 S.E.2d at 754

 ("Whether the chain of custody has
been established as far as practicable clearly depends on the unique factual
circumstances of each case." (quoting Cochran, 

364 S.C. at 629 n.1,

 

614 S.E.2d at
646 n.1

)); State v. Patterson, 

425 S.C. 500

, 508, 

823 S.E.2d 217

, 222 (Ct. App.
2019) ("Minor discrepancies in the chain of custody implicates the credibility of
the evidence, but does not render the evidence inadmissible."). This discrepancy,
as well as the discrepancy of thirty minutes between drawing the blood and
delivery to the lab, goes to weight and credibility of the evidence, not its
admissibility. See State v. Johnson, 

318 S.C. 194

, 196, 

456 S.E.2d 442

, 444 (Ct.
App. 1995) (holding a two-day discrepancy in the chain of custody regarding the
dates an investigator turned in drug evidence to the evidence custodian did not
establish the drugs were inadmissible); 

id.

 ("A reconciliation of this [two-day]
discrepancy was not necessary to establish the chain of custody, but merely
reflected upon the credibility of the evidence rather than its admissibility.").
Therefore, the trial court did not abuse its discretion in admitting Sample A into
evidence.

II.    Blood Transfusion and Testing of Sample A
Rowell argues the trial court erred in admitting Sample A into evidence because
roughly half his blood was replaced with liquids prior to the hospital's blood draw.
He asserts the State failed to establish the reliability of the BAC test after he
received a transfusion. We find this issue unpreserved for our review.

Rowell never raised to the trial court the issue that a blood transfusion caused
Sample A's BAC testing results to be unreliable. At trial, Rowell extensively
challenged the chain of custody for Sample A; however, he never objected to
Sample A's admission on the basis that the test was unreliable because he had
previously received 500 milliliters of blood and 2000 milliliters of IV fluids. Thus,
this issue was not preserved for appellate review because this argument was not
raised to and ruled on by the trial court. See State v. Dunbar, 

356 S.C. 138

, 142,

587 S.E.2d 691

, 693-94 (2003) ("In order for an issue to be preserved for appellate
review, it must have been raised to and ruled upon by the trial [court]. Issues not
raised and ruled upon in the trial court will not be considered on appeal.").

III.   Blood Transfusion and Testing of Sample B
Rowell argues the trial court erred in admitting Sample B into evidence because
more than 150% of his blood had been replaced by blood and other fluids before
Sample B was drawn. Even if the admission of Sample B was so unreliable that its
admission was error, this error was harmless. The jury received clear evidence of
Rowell's intoxication from Sample A, the evidence of open containers in his truck,
the alcohol spilled on the floor of his truck, and testimony that his breath smelled
of alcohol at the accident scene. See State v. Black, 

400 S.C. 10

, 27, 

732 S.E.2d
880

, 890 (2012) ("An appellate court generally will decline to set aside a
conviction due to insubstantial errors not affecting the result."); State v. Howard,

296 S.C. 481

, 485, 

374 S.E.2d 284

, 286 (1988) ("Where guilt is conclusively
proven by competent evidence and no rational conclusion can be reached other
than that the accused is guilty, a conviction will not be set aside because of
insubstantial errors not affecting the result.").

IV.   Jury Voir Dire
Rowell argues the trial court erred in denying his request for an evidentiary hearing
with Juror 164 when he failed to disclose his criminal charges during voir dire. He
asserts that by failing to have a hearing, the trial court abused its discretion because
it did not know the basis for Juror 164's failure to answer truthfully. We disagree.

             When a juror conceals information inquired into
             during voir dire, a new trial is required only when the
             court finds the juror intentionally concealed the
             information, and that the information concealed would
             have supported a challenge for cause or would have been
             a material factor in the use of the party's peremptory
             challenges.

State v. Woods, 

345 S.C. 583

, 587, 

550 S.E.2d 282

, 284 (2001). "Whether a juror's
failure to respond is intentional is a fact intensive determination that must be made
on a case-by-case basis." State v. Sparkman, 

358 S.C. 491

, 496, 

596 S.E.2d 375

,
377 (2004). "The inquiry must focus on the character of the concealed
information, not on the mere fact that a concealment occurred." State v. Kelly, 

331
S.C. 132

, 147, 

502 S.E.2d 99

, 106 (1998) (quoting Thompson v. O'Rourke, 

288
S.C. 13

, 15, 

339 S.E.2d 505

, 506 (1986)). In Woods, our supreme court held,

             intentional concealment occurs when the question
             presented to the jury on voir dire is reasonably
             comprehensible to the average juror and the subject of
             the inquiry is of such significance that the juror's failure
             to respond is unreasonable. Unintentional concealment,
             on the other hand, occurs where the question posed is
             ambiguous or incomprehensible to the average juror, or
             where the subject of the inquiry is insignificant or so far
             removed in time that the juror's failure to respond is
             reasonable under the circumstances.

345 S.C. at 588,

 

550 S.E.2d at 284

.

Rowell failed to provide a sufficient record to support reversal because he failed to
subpoena Juror 164 for the post-trial hearing at which the trial court addressed the
juror concealment issue. See S.C. Code Ann. § 19-7-60 (2014) (providing criminal
defendants have a compulsory process for obtaining witnesses to testify in their
favor); State v. Lyles, 

379 S.C. 328

, 341, 

665 S.E.2d 201

, 208 (Ct. App. 2008)
(providing section 19-7-60 "allow[s] criminal defendants to compel witnesses to
appear in their favor and to produce witnesses and evidence at trial"); State v.
Tyndall, 

336 S.C. 8

, 17, 

518 S.E.2d 278

, 283 (Ct. App. 1999) ("An appellant has
a duty to provide this [c]ourt with a record sufficient for review of the issues on
appeal."). Rowell was afforded the opportunity for a hearing, yet he failed to
subpoena Juror 164 to attend. Without Juror 164's testimony or some other
supporting evidence, the record is insufficient to overturn the trial court's order
denying Rowell's motion for a new trial.

CONCLUSION

Based on the foregoing, we find the trial court did not err in admitting Sample A
into evidence and any potential error as to Sample B was harmless. Further, we
find Rowell failed to provide a sufficient record to overturn the trial court's
consideration of Juror 164's failure to disclose his pending charges. Accordingly,
Rowell's convictions are

AFFIRMED.

KONDUROS and MCDONALD, JJ., concur.

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