Weston A. James, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff. (2025)

MEMORANDUM DECISION ON REHEARING

[1] Weston A. James petitions for rehearing of this Court's original decision in this appeal. He argues that although we addressed his chain of custody argument with respect to the admission of his blood test results, we did not consider his argument that the State failed to establish a proper foundation under Indiana Code section 9-30-6-6(a) (2013)¹ for the admission of his blood test results. More specifically, he argues that a foundation was not made that the person who drew his blood acted under or followed protocols prepared by a physician. We grant the petition for the sole purpose of addressing this issue, but in all other respects confirm our original decision.

[2] In State v. Hunter, 898 N.E.2d 455 (Ind. Ct. App. 2008), a panel of this Court addressed the foundational requirements for the admission of a blood test results report under a prior version of Indiana Code section 9-30-6-6(a) (2003).² In Hunter, we affirmed the trial court's exclusion of the blood test results report because “there was absolutely no evidence that Nurse VanContron was acting under a protocol prepared by a physician.” 898 N.E.2d at 458. The only evidence regarding the steps taken during the blood draw came from the arresting officer, who was present at the time Hunter's blood was drawn. He testified that “the procedure was performed in the same fashion as the more than twenty blood draws he had previously witnessed.” Id. at 457. However, when pressed on cross-examination, the officer “conceded that he was not familiar with the medical protocol from a physician for the drawing of blood by a nurse, or the nurse's training in obtaining bodily substance samples.” Id. (internal quotations omitted).

[3] Due to the passage of a significant amount of time between James’ commission of the offenses in November 2017 and his trial in December 2023, many of the witnesses could not remember the specifics of the blood draw, and the vials of his blood were destroyed per the policy of the Indiana State Department of Toxicology.

[4] Suri Sutchings, a phlebotomist at Lutheran Hospital in 2017, testified to the protocol and procedures for collecting blood samples. State's Exhibits 43 (Lutheran Hospital Label and Order Priority Procedure), 44 (Lutheran Hospital Specimen Identifiers), and 45 (Lutheran Hospital Phlebotomy: Venipuncture Procedure) were introduced through her testimony. Ex. Vol. I, pp. 61-70. Each of these documents reflected that they were approved and reviewed by physicians, most recently by Dr. Gerald Yancey. And State's Exhibit 46 was a report from Lutheran Hospital, provided in response to a subpoena duces tecum, showing that Hutchings and another nurse had collected James’ blood on November 22, 2017. She testified that she followed Lutheran Hospital's procedures every time she drew blood at Lutheran Hospital. And during her cross-examination, to call into doubt whether Sutchings, a phlebotomist, had drawn James’ blood, James’ counsel introduced Defense Exhibit F, a Lutheran Hospital record which showed that a blood alcohol test was a “nurse collect.” Id. at 81.

[5] The toxicology analysis request form (TAR), which was filled out and signed by Trooper Shultz, listed the nurse who did the law enforcement blood draw as Ford Lee. After the trial court denied James’ motion for a directed verdict at the end of the State's case, Lee testified. He stated that he was an emergency room nurse at Lutheran Hospital in November 2017. Lee verified that he conducted blood draws, including those for law enforcement. When law enforcement draws were done, he normally would fill out a form with his name on it and initial the tubes of blood that were drawn. The parties then elicited testimony to explain why Lee's name was not in his handwriting, namely because Trooper Shultz ostensibly filled it out. And, of course, the blood vials had been destroyed, along with the initials on the labels.

[6] In this case, unlike in Hunter, there was testimonial and documentary evidence as to the physician-approved protocols in place for blood draws at Lutheran Hospital at the time of James’ blood draw. That evidence was admitted through State's witness Sutchings. Lee later testified that he worked as an emergency room nurse at Lutheran Hospital in 2017 and that he had drawn blood for law enforcement purposes before. Tr. Conf. Vol. II, p. 131. Although Lee could not identify his handwriting on the TAR, Trooper Shultz testified that his usual practice was to contemporaneously fill out that form while he was present for the blood draw. He testified that his usual practice was to place the vials of blood he received from the nurse into the blood sample kit box and then send them off for testing.

[7] We conclude that based on the record before us, the trial court did not abuse its discretion by admitting the blood test results. There is sufficient evidence in the record of compliance with Indiana Code section 9-30-6-6 to establish the foundation for admission of the evidence.

[8] We affirm the trial court's decision on this ground and confirm our original decision in all respects.

FOOTNOTES

1.   This section provides:(a) A physician or a person trained in obtaining bodily substance samples and acting under the direction of or under a protocol prepared by a physician, who:(1) obtains a blood, urine, or other bodily substance sample from a person, regardless of whether the sample is taken for diagnostic purposes or at the request of a law enforcement officer under this section; or(2) performs a chemical test on blood, urine, or other bodily substance obtained from a person; shall deliver the sample or disclose the results of the test to a law enforcement officer who requests the sample or results as a part of a criminal investigation. Samples and test results shall be provided to a law enforcement officer even if the person has not consented to or otherwise authorized their release.

2.   The version of this statute applicable to the blood draw in Hunter in pertinent part is the same as the language of the version of the statute applicable to James’ blood draw.

Crone, Senior Judge.

Judges Foley and DeBoer concur. Foley, J., and DeBoer, J., concur.