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State v. Goucher

Superior Court of Maine, Kennebec

October 16, 2018



          William R. Stokes, Justice


         Before the Court are the following motions filed by the Defendant on August 1, 2018: (1) Motion to Suppress (Fruits of Search Warrants); (2) Motion to Suppress (Consent Issue); (3) Motion in Limine to Exclude Medical Records & Blood Sample Obtained from Hospital and; (4) Motion in Limine to Exclude HETL (Health and Environmental Testing Laboratory) Alcohol Testing Results & Testimony of Stephen J. Pierce. An evidentiary hearing on the motions was held on September 26, 2018 at which the Court received the testimony of the following witnesses called by the State: Joseph Dobbins; Julie Beaupre; Amanda Murphy; Stephen Pierce; Michele Vining; Deputy Sheriff Adam Bacon, and; Sgt. Frank Hatch. The Court also received the testimony of John Godfrey called by the Defendant. State's Exhibits 1-6 were admitted into evidence. Defendant's Exhibits 2 & 3 were also admitted.[1] Jury selection in this case is scheduled for November 8 and 9, 2018, with trial set to begin on November 26, 2018.

          Based upon the evidence presented at the hearing, and after considering the arguments of the parties, the Court makes the following findings of fact.


         Late in the evening of May 12, 2017, a motor vehicle crash occurred in Mount Vernon. The Defendant, Tyler Goucher, was the operator of the vehicle that was involved in the crash. Two passengers were in his vehicle at the time. One of the passengers, Ethan Russell, was seriously injured and law enforcement personnel quickly learned that the crash could potentially involve a fatality.

         Kennebec County Deputy Sheriff Adam Bacon was one of the law enforcement officers who responded to the crash scene. He later responded to the Central Maine Medical Center (CMMC) in Lewiston to collect clothing from the Defendant and obtain his consent to take photographs of his injuries. The Defendant was cooperative and gave his consent by scribbling his signature on the consent form.[2] See State's Exhibit 4.

         By the time Deputy Bacon arrived at the crash scene, ambulance personnel and other law enforcement officers were already there. Michele Vining, an advanced EMT with Winthrop Ambulance, was with the first ambulance to arrive and she was assigned to attend to the Defendant. The Defendant was alert, talking, breathing, and very concerned about his friends and wanted to know if they were "okay." Once the Defendant was "cleared" for his spinal evaluation he was able to walk to the ambulance on his own power.

         While Ms. Vining was assessing and evaluating the Defendant, Sgt. Frank Hatch of the Kennebec County Sheriff's Department was also there for at least part of the time. Sgt. Hatch had activated his digital recorder for some period of the time while he was in the Defendant's presence. That recording was admitted into evidence as State's Exhibit 6. It has a total recoding time of 28:27. The court has listened to the recording twice in its entirety and certain portions of it multiple times.

         The Defendant was cooperative, very talkative and told Sgt. Hatch that he was the driver of the vehicle, that he was "ok" to drive, that he and his friends had been at the Weathervane Restaurant, that he had three (3) drinks including two beers and one "Grateful Dead," that he was going 50-55 mph, and that just prior to the crash he felt his truck "kick," for which he "corrected." Later in the recording he volunteered to Sgt. Hatch that had "hit the brakes hard," and the truck "slid out of control" when the brakes locked up.

         The Defendant was very concerned about the welfare of his two friends and he firmly, loudly and repeatedly pressed both Ms. Vining and Sgt. Hatch for information about their condition. He specifically asked how the one in the ditch (Richard Hall) and the one in the road (Ethan Russell) were doing. Both Ms. Vining and Sgt. Hatch declined to give the Defendant much information about his friends' well-being, claiming that they did not know any information because they were focusing their attention and efforts on the Defendant.[3]

         At about 7:03 of the recording, Sgt. Hatch asked Ms. Vining: "If I get a blood kit, can you pull that?" Ms. Vining initially responded by asking something to the effect if the kit specified the order of the blood draws because she was not "familiar with drawing blood for stuff like that." At the hearing, she clarified that she had not used a HETL blood kit prior to doing so on May 13, 2017. She agreed to do the blood draw as requested by Sgt. Hatch.

         At 8:08 of the recording, Sgt. Hatch can be heard telling other law enforcement officers at the scene: "I need a blood kit." At 9:27 of the recording, Sgt. Hatch and another officer can be heard talking about the expiration date on the kit and confirming that it was still valid until 2018. At approximately 11:00 of the recording, Sgt. Hatch and Ms. Vining can be heard discussing/examining the contents of the kit. At 11:35, Sgt. Hatch said: "Tyler, she's gonna - I'm going to ask her to draw up some blood out of you, okay? Do you have any issues with that?" The Defendant immediately replied: "No."

         Over the next several minutes, Ms. Vining and Sgt. Hatch reviewed the directions contained within the blood kit. Ms. Vining drew the required number of samples, labelled them, signed the forms presented to her by Sgt. Hatch and gave the samples to Hatch for re-packaging and sealing. Sgt. Hatch temporarily stored the kit in his locked cruiser. Later, he took the sealed kit to the HETL drop box at the Augusta Police Department. The Defendant was not asked to sign any consent form.

         The blood sample taken from the Defendant by Ms. Vining inside the ambulance on May 12, 2017 was received at HETL on May 15, 2017 from the drop box. See State's Exhibit 2. Sgt. Hatch believed that the Defendant had consented to the taking of his blood at the scene. On May 17, 2017, however, counsel for the Defendant sent a letter to Stephen Pierce at HETL (via fax and U.S. Mail) stating that the Defendant "now hereby withdraws consent to any further examination and/or testing of his blood." See Letter attached to Search Warrant Affidavit in Docket # SW-17-0053.

         The letter prompted the submission of an application for a search warrant authorizing the examination/testing of the blood sample by HETL. The request was supported by the Affidavit of Sgt. Scott Mills, II, of the Kennebec County Sheriff's Office. He asserted in the affidavit that he was one of the deputies who had responded to the scene of a crash on the North Road in Mount Vernon on May 12, 2017 involving a 2008 Chevy Silverado pick-up truck being operated by the Defendant.

         The affidavit further alleged that Ethan Russell was dead at the scene and Richard Hall was "severely injured." Sgt. Mills described the crash scene as involving approximately 300 feet of skid marks showing the truck leaving the road in the opposite lane of travel, rolling over, striking a tree and coming to rest against a telephone pole. The damage to the truck was described as "catastrophic," with the rear axle and the pick-up bed having been separated from the rest of the truck. Debris from the crash was strewn over a considerable area. All three occupants of the truck were ejected. Based on the scene it appeared that speed was a fact in the crash.

         An 18-pack of Bud Light beer was found under the truck. The affidavit contained some of the information obtained by Sgt. Hatch from the Defendant on the night of the crash, including: that he was the driver of the vehicle; that he and his two friends had been drinking alcohol at the Weathervane prior to the crash; that the Defendant was the "most sober, so he drove;" that he was speeding trying to catch up with his other friends who had left earlier in another vehicle. Sgt. Mills opined that operating under the influence "appear[ed]" to be factor in the crash.

         The affidavit recounted that a blood sample had been drawn from the Defendant at the crash scene under the belief that he had consented to the blood draw, but that his attorney's letter had subsequently been sent to HETL, "professing to withdrawn consent for testing."

         Finally, the affidavit averred that the Defendant had been taken to CMMC in Lewiston where both blood and urine samples had been obtained from him. The affidavit recited that an earlier warrant had authorized the State to seize those blood and urine samples from CMMC for testing by HETL.

         The warrant was issued on May 17, 2017. (SW-2017-0053) (E. Walker, J.). The blood sample was tested at HETL and a report (certificate) was issued showing a BAC of 0.217%. See State's Exhibit 2. The HETL report for this sample documents a collection time of the sample of 23:01 (11:01 p.m.) on May 12, 2017. Id.

         As noted earlier, the Defendant was transported by ambulance to CMMC in Lewiston. Phlebotomist Joseph Dobbins had no independent recollection of names or particular dates, but he did recall the night of this "trauma" incident, and he did recall drawing blood in connection with this matter. He also recalled that he was told to "hold" any samples pending the issuance of a search warrant.

         Mr. Dobbins testified that it was important for him, and other phlebotomists, to follow specific protocols with respect to the drawing of blood samples in order to prevent cross-contamination and because medical staff depend upon the accuracy and reliability of results for medical treatment purposes. The patient's wrist-band is bar-coded. All labels associated with that patient are also bar-coded and the labels must match the patient's wrist-band. The records created and maintained by the hospital contain information as to who performed the blood draw, who sent the samples to the laboratory and who at the laboratory received the samples. This is all done by means of the bar-code scanning system utilized by CMMC.

         Mr. Dobbins testified that in any trauma case he would always use an iodine, not an alcohol, swab to "prep" the site of the blood draw. He was not familiar with the blood evidence collection kit issued by HETL, as he had never used one, and he was not familiar with the rules promulgated by HETL/DHHS regarding forensic testing of a blood sample. Once Mr. Dobbins, or any of the phlebotomists at CMMC, completes a blood draw on a patient and has properly labeled and scanned it, it is sent to the laboratory by means of a pneumatic tube. The phlebotomist has no involvement in the laboratory testing process.

         Julie Beaupre is the clinical supervisor at the CMMC laboratory and has held that position for four years. Her duties include the overall supervision of the chemistry laboratory, insuring that the laboratory records are up-to-date, and maintaining the laboratory's accreditation by the American College of Pathologists. The laboratory is inspected every two years in order to maintain its accreditation.

         The CMMC laboratory is equipped with two Ortho 5600 Clinical Diagnostic Analyzers that provide results of chemical analysis on samples submitted to the laboratory as ordered by a physician. The machines are subject to quality controls on a daily basis. The equipment is nationally recognized as being reliable in the hospital setting. The machine will generate a "problem log" if any error in the testing has been detected, and if a problem has been identified the results will not be used. Ms. Beaupre testified that she reviews the maintenance logs for the month as well as for each shift and she did so for May 13, 2017.

         She was able to locate and review laboratory records pertaining to the Defendant for that date. She testified that everything about the equipment and the test results were "acceptable." Based upon her examination of hospital/laboratory records, she was able to determine that Joseph Dobbins was the phlebotomist who drew the Defendant's blood sample at CMMC on May 13, 2017. She further testified that the bar-coding system employed at CMMC will "tag" the person who input the data (e.g., who took the sample; who received it at the lab) as well as the physician who ordered the test.

         Ms. Beaupre personally has used the Ortho Diagnostic Analyzer. She explained that the equipment will perform general chemical analysis for blood alcohol content. When a blood sample is received at the laboratory, one of the technicians will scan it, "spin" it down and load the sample onto racks, at which point the Ortho Analyzer "reads it automatically." The analysis is performed on blood serum or plasma after it has been "spun" or separated in a centrifuge, and not on whole blood. If an error occurs during the analysis, the "auto-verifier" flags the error. The process would then stop and the results of the testing would not be released to the patient's chart (record). If no error is identified during the testing process, the result of the analysis is automatically released to the patient's medical record and is available for review by the patient's treating physician.

         Ms. Beaupre was not familiar with the standards for forensic testing of blood samples as adopted by HETL. She testified that the Ortho Diagnostic Analyzer was used for medical and hospital purposes, not for forensic purposes. She acknowledged that CMMC does not use Dual Column Gas Chromatography to analyze blood samples. Based on her review of the hospital/laboratory records, created and maintained in the regular course of the business of CMMC, she testified that the report of the analysis of the blood sample taken from the Defendant at the hospital on May 13, 2017 showed an ethanol level of 228 mg/dl (milligrams/deciliter). See State's Exhibit 1.

         Amanda Murphy (f/k/a Amanda Webb) was employed as a medical laboratory technician at CMMC until the end of May 2017. She worked the third shift from 8:30 p.m. to 7:00 a.m. She explained the procedure used at CMMC while she worked there for the laboratory analysis of patient samples. Briefly described, that process starts when an authorized treatment provider has ordered tests. That order would be entered into the computer system using a bar-code scanning process. Once the sample was received at the laboratory, it would be scanned in there, "spun" down and then placed on the analyzer. The machine runs the sample using the preprogramed bar code scan to identify which tests are to be performed.

         She also described the auto-verifier software that will flag an error and will not release the test results to the patient's chart if an error is detected. On the other hand, the auto-verifier will automatically release the test results to the patient's record if no error is identified.

         Ms. Murphy did not have an independent memory of receiving the Defendant's blood sample on May 13, 2017, but based on information supplied to her by management personnel at the CMMC laboratory, she was able to determine that she was the technician who received the sample and "ran" the test results.

         As with the other witnesses from CMMC, Ms. Murphy was not familiar with HETL testing standards or rules. She confirmed that the hospital laboratory conducts its testing on blood plasma and not whole blood, and that such testing is for medical, not forensic purposes.

         On May 16, 2017, Sgt. Mills applied for a search warrant for the seizure of the blood and urine samples obtained from the Defendant at CMMC, and copies of the laboratory test results of the hospital's analysis of those samples. The affidavit in support of that warrant contained the same substantive information that has already been described with respect to the affidavit to test the Defendant's blood sample taken at the crash scene. The warrant was issued on May 16, 2017. (SW-2017-0052) (Stokes, J.)[4]

         The warrant was executed on the same day it was issued and the blood sample was received by HETL on May 17, 2017. The blood sample was analyzed and a report (certificate) was issued showing a BAC of 0.202%. See State's Exhibit 3. The HETL report documents a collection time for this sample of 00:12 (12:12 a.m.) on May 13, 2017. The laboratory report from CMMC, however, documents a collection time of 00:16 (12:16 a.m.) on May 13, 2017. See State's Exhibit 1.

          Stephen Pierce was a chemist at HETL for 24 years and retired from that position in 2017. While employed there he was certified every six months to conduct blood alcohol testing. He received the sample of the Defendant's blood taken at the crash scene by Michele Vining and the blood sample taken at CMMC and tested both samples on the same day, i.e. May 22, 2017. Certificates of alcohol analysis were issued on May 23, 2017. See State's Exhibits 2 & 3.

         Mr. Pierce testified that HETL uses a head space gas chromatograph to test for blood alcohol content, which is recognized as an accurate and reliable method. The test is performed on whole blood. The samples were tested in a "batch" with two portions drawn out and put in sealed head space vials for testing by the head space auto analyzer. There were standards and controls that were used to crosscheck that the equipment was operating properly. Pierce had read the affidavit of Mr. Godfrey, the defense expect, and denied ...

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