Before Sullivan, P.j., Banks And Mills, JJ.
The opinion of the court was delivered by: Mills, Justice
DATE OF JUDGMENT: 05/01/96
TRIAL JUDGE: HON. R. I. PRICHARD, III
COURT FROM WHICH APPEALED: JEFFERSON DAVIS COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: DIRECT APPEAL: AFFIRMED IN PART, REVERSED AND RENDERED IN PART;
CROSS APPEAL: REVERSED AND RENDERED - 11/19/98
¶1. Jimmy Jackson filed a wrongful death action against Jefferson Davis County for the death of his son, Bryan Wade Jackson. The County and individual defendants filed a motion for summary judgment based on the doctrine of sovereign immunity. Summary judgment was denied.
¶2. On January 14, 1994, the Plaintiff filed a motion to amend his complaint to include an additional defendant, United States Fidelity & Guaranty Company (U.S.F.&G.). The trial court granted this motion. U.S.F.&G. then filed a motion to dismiss under Rule 12(b)(6), which motion was denied. On May 1, 1996, the jury entered a verdict for the Defendants. Aggrieved, the plaintiff appeals and assigns the following issues as error:
I. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE JURY TO CONSIDER BRYAN WADE JACKSON'S BLOOD AND URINE SAMPLES FROM PUCKET LABORATORIES?
II. WHETHER THE TRIAL COURT ERRED IN GRANTING JURY INSTRUCTION NUMBER 12?
III. WHETHER THE TRIAL COURT ERRED IN GRANTING JURY INSTRUCTION NUMBER 11?
IV. WHETHER THE TRIAL COURT ERRED IN DENYING PLAINTIFF'S MOTION TO NAME UNITED STATES FIDELITY AND GUARANTY COMPANY AS A PARTY AND IN OVERRULING THE PLAINTIFF'S OBJECTIONS TO THE DEFENSE COUNSEL COMMENTING IN HIS CLOSING ARGUMENT THAT JEFFERSON DAVIS COUNTY WOULD HAVE TO PAY THE VERDICT?
V. WHETHER THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?
¶3. On cross appeal, the defendant raises the following issue as error:
I. DID THE TRIAL COURT ERR IN HOLDING THAT JEFFERSON DAVIS COUNTY'S POLICY WITH UNITED STATES FIDELITY COMPANY PROVIDED COVERAGE FOR THE ACCIDENT THAT CAUSED BRYAN WADE JACKSON'S DEATH?
¶4. On April 15, 1989, Bryan Wade Jackson was returning home in a northerly direction on a county road, shortly after midnight, when he had an automobile accident which resulted in his death. His body was found at 7:00 a.m. the next morning under his overturned vehicle. The scene of the accident was a one-car gravel road maintained by Jefferson Davis County. Physical signs at the scene of the accident indicate that Jackson's car struck a pine tree, bounced off the tree back into the county road, and overturned, pinning Jackson under the car.
¶5. Prior to the accident, the county had dumped three piles of dirt on the west side of the road. The piles of dirt were a few feet high and sloped so that a small amount of the dirt extended into the left tire track for a north-bound vehicle such as that driven by Jackson. The appellant contends that Jackson's accident was caused by Jackson striking one of the piles of dirt or attempting to avoid the piles of dirt.
I. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE JURY TO CONSIDER JACKSON'S BLOOD AND URINE SAMPLES FROM PUCKET LABORATORIES.
¶6. Trial evidence established that Jackson's urine tested positive for alcohol and that his blood alcohol level was 0.17%. The appellant claims that the blood and urine results are the only evidence that the defendant was intoxicated, and that this evidence should not have been presented to the jury.
¶7. In addition to the blood and urine samples, however, three witnesses, Deputy Thomas Earl Stevens, Joanna Pierce, and John Paul Kirby, presented testimony indicating that Jackson had been drinking on the night of the accident. Deputy Thomas Earl Stevens was the officer investigating the scene, and he testified that he found empty beer cans around the scene as well as in the cab of the truck. Pierce testified that she had seen Jackson drinking a beer between 7:00 and 8:00 on the evening of the accident. Kirby testified that he was with Jackson from 6:30 to 10:30 and that they were drinking beer during that time. Clearly, the blood and urine samples are not the only indication that Jackson was intoxicated at the time of the accident.
¶8. The appellant objects to the blood and urine samples on the basis that no documentary evidence as to the source of the blood and urine samples exists other than the reports that were returned to the Circuit Clerk of Jefferson Davis County. He claims that Jackson's blood and urine samples were destroyed by the laboratories. He also contends that the chain of custody was broken and that the blood and urine samples should therefore not have been admitted into evidence.
¶9. This Court usually defers to the trial court's determination of whether or not authorities have maintained the chain of custody of evidence. Nix v. State, 276 So.2d 652, 653 (Miss. 1973). When reviewing the chain of custody, we will not disturb the finding of the trial court unless there has been an abuse of discretion. Nalls v. State, 651 So.2d 1074, 1077 (Miss. 1995)(citing Morris v. State, 436 So.2d 1381 (Miss.1983)). The test to determine whether there has been a break in the chain of custody is whether or not there is evidence of probable tampering. Nix, 276 So.2d at 653. The record in the case sub judice does not reflect that Jackson's blood and urine samples were tampered with in any way.
¶10. Officer Thomas Earl Stevens was the first official to arrive at the scene of the accident. He testified that when he saw evidence that Jackson had been drinking he ordered that an alcohol test be performed on Jackson's body. He then witnessed the deputy coroner draw the blood and urine from the body of the deceased. He also watched as the deputy coroner, Greg Blackwell, packaged and sealed the samples.
¶11. The coroner, Joe Hutchins, testified that the deputy coroner acted under his supervision and in accordance with the standard procedures in their office. After the samples were drawn they were taken to the hospital in Prentiss, where they were picked up by the testing facility, Pucket Laboratories. Following standard procedure, Pucket Laboratories sent the coroner's office a copy of the results of the tests. Hutchins then recorded these results in his official records.
¶12. Greg Blackwell, the deputy coroner, was trained by the Mississippi Crime Laboratory in the correct procedure to follow in taking blood and urine samples. He described the protocol and testified that he followed the proper procedure in drawing and packaging Jackson's samples and sending them to the testing laboratory. The appellant attempted to discredit Blackwell's testimony by eliciting on cross-examination that he did not specifically remember taking the blood and urine from Jackson's body and that he did not specifically remember filling out the form that accompanied Jackson's samples. The fact that Blackwell did not remember every single detail about a test he conducted six years ago does not convince this Court that the chain of custody was broken. Blackwell testified that he did remember working with Jackson's body and that the correct procedure was followed.
¶13. Finally, the defendants below presented the deposition of Tom Pittman, the head of Pucket laboratories. In his deposition, Pittman identified the report concerning the testing results, and stated that these results were sent to the ...