Dept. of Social Welfare v. Miller

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 89-548


                                             Supreme Court
Department of Social Welfare
                                             On Appeal from
     v.                                      Franklin Superior Court

Patrick Miller                               March Term, 1991



Richard W. Norton, J.

Thomas L. Pearis, Waterbury, for plaintiff-appellee

Robert Andres, Burlington, for defendant-appellant



PRESENT:  Allen, C.J., Gibson, Dooley and Johnson, JJ.

     JOHNSON, J.     Defendant Patrick Miller appeals from a jury finding
that he is the father of Allen Moore.  Primarily, he challenges the
admission, at trial, of the results of blood tests establishing a high
probability that he is the father of the child.  He also claims that error
occurred when a picture related to another paternity case involving him was
handled by the Department of Social Welfare in the presence of the jury and
when, during closing argument, the Department of Social Welfare commented on
his failure to present alibi witnesses.  We affirm.
     In 1984, April Moore met Patrick Miller during the week of the Swanton
Festival, which was held at the end of July.  Both parties testified to
"seeing" each other for the next couple of months, but although Ms. Moore
claimed that the couple engaged in sexual relations, Mr. Miller claimed that
they did not.  On April 26, 1985, Allen Moore was born to April Moore.  No
father was listed on the child's birth certificate, but when Ms. Moore was
required to name the child's father in applying for welfare benefits, she
identified Patrick Miller.  Mr. Miller denied paternity, and this action
ensued.  A jury found Patrick Miller to be the father of Allen Moore, and
this appeal followed.

                                    I.

                     Admissibility of the test results

     Defendant challenges the admission of blood test results which
established a 97.87% probability that he is the father of Allen Moore.
Specifically, he contends that (1) no adequate chain of custody was
established for the blood samples used for the tests; (2) the laboratory
procedures for testing were not followed; (3) blood taken for testing in an
unrelated paternity case also involving him was used to perform a final test
with respect to Allen Moore; and (4) the doctor who testified at trial did
not himself perform the tests.
     A sufficient chain of custody for a test sample exists if the
circumstances establish reasonable assurance of the identity of the sample.
State v. Comstock, 145 Vt. 503, 506, 494 A.2d 135, 137 (1985).  The chain of
custody must be sufficient to "'allow a trial court to rule favorably on its
relevance, and also on its admissibility as against any possible prejudice
to the respondent.'"  State v. Ross, 130 Vt. 235, 240, 290 A.2d 38, 41
(1972)(quoting State v. Auger, 124 Vt. 50, 57, 196 A.2d 562, 567 (1963)).
    Two witnesses testified at trial as to the chain of custody.  The
phlebotomist who drew the various samples testified about her method of
identifying them.  She stated that the individual tubes are sealed and
labeled and mailed with accompanying paperwork which also identifies the
samples.
     Dr. Osborne, an associate director of the department of paternity
evaluation of Roche laboratory, testified about the method employed for
tracking and testing the samples at the laboratory.  He testified that an
employee is assigned to opening packages received.  That employee must
examine the tubes of blood for tampering and ensure that the labels match
the accompanying paperwork.  Any problems or discrepancies are brought to
the attention of a supervisor, but if all is in order, the receiving
employee initials the chain-of-custody section of the accompanying sheet.
The sheets were initialed for the samples involved here.
     Each sample is then subjected to two identical tests performed by two
different technicians.  The results are noted and compared and must be
identical.  Technicians are expected to note any irregularities in their
reports, and if the results of the tests differ, the tests must be
performed anew.  The technicians enter the final results in the laboratory
computer.  The reports in the case at hand did not contain any indication of
irregularities, and the results of the tests were identical. (FN1)
     The files containing the reports are then submitted to the calculations
department, where operators command the computer to make the necessary
calculations.  Dr. Osborne reviews the computer printouts and the raw data
sheets and compares these to ensure they correspond.  If they do, he signs
the reports.  The reports in this case are signed.  Moreover, before trial,
Dr. Osborne hand-calculated the relevant results to ensure that the computer
calculations are accurate.  They are.
     We hold that the evidence established reasonable assurance of the
identity of the blood samples and test results.  See State v. Comstock, 145
Vt. at 506, 494 A.2d  at 137.  The procedure employed by Roche laboratory to
ensure the integrity of the tests was certainly sufficient to "'allow a
trial court to rule favorably on [the test results'] relevance, and also on
[their] admissibility as against any possible prejudice to the respondent.'"
Ross, 130 Vt. at 240, 290 A.2d  at 41 (quoting Auger, 124 Vt. at 57, 196 A.2d
at 567).  Several of our prior cases involve challenges to the chain of
custody of samples.  Generally, chain of custody is established if a sample
is sealed and labeled upon collection and received by the technician
performing the test in that condition.  See State v. Comstock, 145 Vt. at
506-07, 494 A.2d  at 137; Ross, 130 Vt. at 241-42, 290 A.2d  at 42; Auger, 124
Vt. at 57-58, 196 A.2d  at 567.  Direct evidence concerning the situation of
the sample from the time it is mailed and the time it is delivered to the
technician for testing is not necessary.  See Ross, 130 Vt. at 241, 290 A.2d 
at 42.  In this case a combination of direct and documentary evidence
established that the samples were sealed and labeled upon collection, that
they were received by the laboratory in the same condition, and that two
identical tests performed on each sample yielded identical results.
     Defendant's allegation that the laboratory did not follow its own
procedures in performing the tests is without merit.  Three types of blood
tests were involved.  First, red cell tests and human leukocyte antigen
tests were performed.  Doctor Osborne testified that until 1988, it was the
policy of the laboratory to perform these tests within six months of each
other, on the various samples to be compared.  This procedure was followed
for the red cell tests and human leukocyte antigen tests.  In addition,
samples were subjected to a series of red cell enzymes and serum proteins
tests because the red cell tests established only a 94.18% probability of
paternity.  The red cell enzymes and serum proteins tests on the various
samples were not performed within six months of each other.  But, according
to Dr. Osborne's testimony, the six-month policy does not apply to the red
cell enzymes and serum proteins tests.  Accordingly, there was no breach of
laboratory operating procedures.
     Dr. Osborne also testified that the red cell enzymes and serum proteins
tests require freezing of the blood sample within six weeks after the
drawing.  Defendant complains that there was no evidence that the samples
were in fact frozen within the required time frame.  Dr. Osborne testified,
however, that samples are habitually frozen within the required time frames
and that if this had not been done, there would have been fuzziness in the
typings and the test results would have been disregarded.  In the absence of
evidence to the contrary, this testimony was sufficient to establish that
the procedures employed by Roche laboratories were followed in this case.
     Defendant contends that error occurred because the laboratory used his
blood, drawn for testing in a different paternity challenge, to perform the
red cell enzymes and serum proteins test for this case.  He argues that he
was unable to cross-examine the phlebotomist about the possibility of
misidentification of the blood drawn for the unrelated paternity case
without revealing to the jury that a different case was involved.  We see no
reason why defendant could not cross-examine using the words mother and
child rather than naming the particular individuals.  Defendant in fact
fully cross-examined the witnesses about the routine established for blood
collection and testing, and the procedures used in this particular case.
Defendant's blood did not change in the context of two different cases.
Accordingly, use of the same sample to perform tests for two different cases
was not error.
     Defendant argues that although Dr. Osborne is the custodian of the
records and reports related to the testing, he could not provide a
foundation for the introduction of the test results because he did not
personally perform the diverse tests.  The records and reports containing
the test results were business records.  See V.R.E. 803(6).  Rule 803(6)
does not require that the foundation for a business record be established by
the person who made the record.  Rather, the rule exempts from exclusion:
         A memorandum, report, record, or data compilation, in
         any form, of acts, events, conditions, opinions or
         diagnoses, made at or near the time by . . . a person
         with knowledge, if kept in the course of a regularly
         conducted business activity, and if it was the regular
         practice of that business activity to make the
         memorandum, report, record, or data compilation, all as
         shown by the testimony of the custodian or other
         qualified witness, unless the source of information or
         the method or circumstances of preparation indicate lack
         of trustworthiness.

(Emphasis added.)  Dr. Osborne, the custodian of the records, who
personally supervised the technicians performing the tests in question and
was instrumental in establishing the procedures employed in the paternity
evaluation section of Roche laboratories, verified that it was the regular
business practice of technicians at Roche laboratory to make the records in
question at the time the tests were performed.  His testimony established
the reliability of the method of preparing the records and that the entries
were made by various individuals having first-hand knowledge of the
information recorded.  Thus, the requirements of Rule 803(6) were met, and
the records were properly admitted.  Moreover, Dr. Osborne, who without
objection from defendant was certified by the court as an expert on the
application of genetic blood testing in paternity evaluation, was competent
to give an opinion of the probability of paternity based on the information
contained in these admissible records.

                                             II.

         The Handling of a Picture Pertaining to Another Paternity Suit in the
         Presence of the Jury

     Defendant challenges the "display" of a photograph of another woman
and child to the jury.  Defendant's characterization of the incident is
misleading.  At trial, during the course of the pre-admission examination of
the records and reports of the red cell enzymes and serum proteins tests,
defendant observed and recognized from his seat a photograph of a woman and
child unrelated to the instant case, attached to the reports.  Defendant
moved for a mistrial, and a bench conference ensued.  It was then discovered
that, because the blood for the red cell enzymes and serum proteins tests
was drawn in connection with another case involving another woman and child,
that woman's name and photograph appeared with the records.  The trial court
ordered that the photograph be removed from the documents and that the other
woman's name be covered.  It denied defendant's motion for a mistrial
because the documents had not yet been introduced into evidence and
submitted to the jury.  Defendant argued that he was able to recognize the
other woman from where he was sitting.  The court concluded, however, that
defendant's claim that the jury must also have seen and identified the
picture as that belonging to a woman different from the complaining witness
in this case, was too speculative.
     "[M]otions for mistrial are committed to the sound discretion of the
trial court and should not be granted unless the moving party demonstrates
prejudice.  The trial court's decision will stand on appeal unless the
court's discretion was either totally withheld or exercised on grounds
clearly untenable or unreasonable."  State v. Roberts, 154 Vt. 59, 73, 574 A.2d 1248, 1255 (1990)(citations omitted).  The trial court noted, in
denying the motion, that it had not observed the identity of the woman in
the photograph and that it did not believe the jury had done so either.  In
these circumstances, the trial court did not abuse its discretion in denying
defendant's motion for a mistrial.
     Defendant also complains that the court made no cautionary instruction
to the jury pertaining to the incident.  He did not, however, request any
such instruction; nor did he object to the jury instructions given.
Alluding to the incident would certainly have alerted the jury to the
existence of another case.  Having resolved to deny defendant's motion for
a mistrial, the court did not abuse its discretion in refraining from
referring to the incident in the presence of the jury, particularly where
defendant made no request for a cautionary instruction.

                                   III.

           Closing Argument of the Department of Social Welfare

     Defendant contends that reversible error occurred during closing
argument when the attorney for the Department of Social Welfare commented
on defendant's failure to present alibi witnesses.  Defendant objected to
the comment and moved for mistrial.  The court instructed the jury that "the
number of witnesses is not persuasive as far as your consideration goes" and
ordered it to disregard the attorney's comment.  "'The decision as to
whether or not [an attorney's] comment is prejudicial is clearly within the
sound judgment and discretion of the trial court.'"  State v. Callahan, ___
Vt. ___, ___, 587 A.2d 970, 974 (1991)(quoting State v. Norton, 134 Vt. 100,
105, 353 A.2d 324, 327 (1976)).  Here, the court took immediate corrective
action and emphasized, in its instructions to the jury, that the Department
of Social Welfare bore the burden of proof by a preponderance of the
evidence.  It also stressed that the arguments of counsel were not evidence
and that the jury's decision should be based solely on the evidence.  The
court did not abuse its discretion in refusing to grant defendant's motion
for mistrial.
     Affirmed.



                                             FOR THE COURT:



                                             _______________________________
                                             Associate Justice



FN1.       Defendant's contention that seventeen people handled the samples
is incorrect.  Each individual sample was handled by only four people: the
phlebotomist, the employee in charge of receiving the samples and two
technicians who performed identical tests on each sample.