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02/11/88 RONALD I. GIBSON v. STATE INDIANA

Filed: February 11, 1988.

RONALD I. GIBSON, APPELLANT,
v.
STATE OF INDIANA, APPELLEE



APPEAL FROM THE MORGAN SUPERIOR COURT, The Honorable J. V. Boles, Special Judge, Cause No. S86-S6

Miller, P.j., Ratliff, C.j., and Conover, J., Concurring.

Author: Miller

MILLER, P.J.

As a result of a single vehicle automobile accident in which his nephew's arm was dismembered, Ronald Gibson was charged with violations of IND. CODE 9-11-2-2, operating a motor vehicle while intoxicated within five years of a prior conviction for operating while intoxicated; I.C. 9-11-2-4, operating while intoxicated causing serious bodily injury; and I.C. 35-42-2-2(a), criminal recklessness with a motor vehicle. The case was tried to a jury, which found Gibson guilty of the first two charges, but acquitted him of criminal recklessness. The trial court sentenced Gibson to a term of four years imprisonment and a fine of $10,000 for the violation of I.C. 9-11-2-2, and sentence him to a consecutive term of four years and $10,000 for the violation of I.C. 9-11-2-4. Additionally, the court suspended Gibson's license "forever." Gibson appeals, alleging that the trial court erred: 1) in not granting a hearing on his motion for change of venue; 2) in admitting evidence despite a break in the chain of custody; and 3) in admitting evidence obtained in a search conducted without probable cause. We reverse on the grounds stated in Gibson's first issue, but we address his second and third issues because they are likely to arise on remand. Gibson raises further issues which, because we reverse and because they might not arise on remand, we decline to address.

FACTS

At approximately 9:30 p.m. on January 11, 1986, Ronald Gibson lost control of his truck as he attempted to make a left turn at the intersection of Main Street and Indianapolis Road in Mooresville. The truck, which was travelling at more than the 40 mile-per-hour posted speed limit, slammed into some metal poles. The collision severed the right arm of Ricky Randolph, Gibson's nephew, who was sitting on the passenger side of the truck.

Judith and Brian Grebel, two employees of the Wake Up gasoline station, witnessed the accident and reported it to the police. Sergeant Larry Mason of the Mooresville Police Department responded to the call. When he arrived within minutes of the accident, he observed Gibson, apparently unconscious, lying on the floor of the truck, his feet under the brake pedal and his head near the passenger side door. Randolph was lying on the truck's bench seat, with his head near the driver's side door and his feet near the passenger side door. He was holding his shoulder and calling for help. Randolph's right arm was lying outside the truck. Mason attempted to aid Gibson and Randolph, but could not because the doors of the truck were stuck.

Within minutes emergency medical personnel arrived. One of them, Kenneth Burwick, smelled the strong odor of alcohol on Gibson's breath, and he informed Mason. The emergency personnel succeeded in extracting Gibson and Randolph from the truck. Gibson was taken to Methodist Hospital in Indianapolis by helicopter.

Mason had seen an empty Budweiser bottle in the truck. Because of the bottle and Burwick's statement that Gibson smelled of alcohol, Mason decided to get a blood alcohol sample. He went to Methodist and, after informing the director of security, Clement Bruce Many, that he wanted the hospital to do a blood alcohol content (BAC) test on Gibson. Mason and Many went to the emergency room were Gibson was being treated.

In the emergency room, Margie Klink, a registered nurse, was assisting in Gibson's treatment. When she asked him, in the course of treatment, if he had been drinking, he replied that he consumed between a twelve pack and a case of beer. Klink drew approximately six vials of blood from Gibson's arm. She handed one vial to Amy Moore, another nurse. Moore, accompanied by Mason and Many, took this blood sample, which was marked with Gibson's name and patient number, to the emergency room satellite laboratory. When she arrived at the lab, she logged in the sample and give it to the technician on duty, Richard Weitzel. Weitzel, accompanied by Mason and Many, took the sample, along with two other blood samples from Gibson, to the main lab. There, Weitzel gave the sample to Sheryl McNaughton, a medical technologist. She performed a BAC test which revealed Gibson's blood contained .257 per cent alcohol by weight.

Further investigation revealed Gibson had begun to drink at about 5:00 p.m., when his carpentry crew finished working for the day. He continued to drink at two bars in Mooresville until shortly after the accident. There was a concflict in the evidence as to how many beers Gibson has to drink, but at least one witnesses testified he saw him drink at least six or seven beers while he was in one of the bars.

Before he was brought to trial, Gibson made a verified motion for change of venue from the county under Id. Rule of Procedure, Criminal Rule 12. He filed this motion, which alleged he could not get a fair trial in the county because of prejudicial news coverage, more than ten days after he entered his plea of innocent. He did, however, allege that his injuries and medical treatment prevented him from learning of the allegedly prejudicial material until after the expiration of the 10 day period. The trial court denied the motion without a hearing.

DECISION

Gibson brings several issues for our review. We reverse on one of these, but address two others because they are likely to ...


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