Court fight over evidence in Ferro killing
By Brent Curtis
staff writer | July 18,2014
Vyto Starinskas / Staff File Photo
Alex Spanos, accused of killing 17-year-old Carly Ferro, is trying to suppress his blood tests as evidence.
Two Vermont State Police troopers, a toxicologist and the mother of Alex W. Spanos all took the stand Thursday during a hearing on a motion to disqualify blood tests which are key pieces of evidence in Spanos’ second-degree murder trial.
Spanos, 25, is charged with killing Carly Ferro, 17, who died in a crash on Cleveland Avenue in Rutland on Sept. 26, 2012.
Prosecutors said samples of Spanos’ blood taken less than an hour after the crash showed high concentrations of diflouroethane — a gas commonly used in electronic cleaning products. Police said Spanos was snorting from cans of Dust-Off to get high seconds before the crash.
But Spanos’ defense attorney is arguing that police investigators violated Spanos’ rights by ordering doctors at Rutland Regional Medical Center to take a blood sample without his consent, sufficient probable cause or a warrant.
During a five-hour hearing Thursday — attended by Spanos, who wore a dark suit, blue shirt and chains — the two troopers involved in collecting a sample of blood from Spanos said they acted without a warrant because the diflouroethane would be expunged from his system by the time their request was granted.
“I believed that it would stay in his system for maybe an hour,” Trooper Blake Cushing testified. “Inhalants like Dust-Off provide a fast high and it comes out of the body in a rapid amount of time.”
Cushing, who said he has received special drug recognition training, told the court he believed the chemical might be found in Spanos’ blood because a passenger in the car had tried to hide alcohol and cans of Dust-Off.
He also said he was prompted to act by the hospital staff’s plans to give Spanos pain medications which he said could interfere with attempts to identify diflouroethane in his blood.
“I believed that the circumstances met the exigent circumstances required to gather evidence (without a warrant),” he said.
But Spanos’ defense attorney, Mary Kay Lanthier, pressed Cushing and Trooper Aron McNeil on why they believed that they had so little time and why they didn’t at least begin the process of seeking a warrant before collecting a blood sample.
“I know that you believe you needed more time to get a warrant, but you didn’t even try, did you?” Lanthier asked Cushing.
Cushing and McNeil said they were both gathering evidence and, in Cushing’s case, traveling to the hospital during some of the 56 minutes that passed during the time of the 6:04 p.m. crash and the 7 p.m. blood draw at the hospital.
The troopers also said they didn’t believe they could go through the process of writing an application and affidavit for a search warrant, having the documents vetted by superiors and prosecutors and delivering the request to a judge in time to collect meaningful evidence in Spanos’ blood.
“It’s taken me up to 24 hours in the past to get search warrants,” McNeil said. “I knew that minutes counted at that point and every minute counted.”
But he added that some warrants take far less time to procure and Lanthier questioned Cushing’s estimate that the drugs would only be detected in Spanos’ system for an hour.
She asked if his training as a drug-recognition expert qualified him to calculate the elimination of drugs from the body — something the trooper said he knew only in general terms.
“I’m not a chemist,” he said.
Questions about the length of time that the chemical could be detected in Spanos’ blood carried over into the testimony of Dr. Wendy Adams, a toxicologist with NMS Labs in Willow Grove, Penn.
Adams, an expert called by the prosecution, told the court she has seen only one published study concerning the time it takes for the body to purge diflouroethane.
While some variables such as frequency of use may skew the elimination time, she said, the study showed that almost all of the chemical was eliminated from test subjects within 115 minutes. She said she would recommend blood tests for evidence collection no later than 90 minutes after diflouroethane was inhaled, or “huffed.”
During cross-examination, Lanthier asked about findings that showed the chemical could still be detected in blood four hours after the study ended.
But Assistant Attorney General Ultan Doyle, who is prosecuting the case along with local State’s Attorney Marc Brierre, asked Adams whether she would be comfortable trying to collect evidence of diflouroethane in blood taken four hours after huffing. She said she would not.
“Using (her company’s testing equipment) we wouldn’t be able to detect anything two hours after exposure,” Adams said.
She also agreed with Lanthier that the administration of pain medication to Spanos at the hospital would not have interfered with the detection of the chemical.
Lanthier also called Spanos’ mother, Marie Eddy, to the stand to testify about what she saw while sitting in her son’s hospital room the night of the crash.
While Cushing testified that he didn’t speak to Spanos until after blood was drawn, McNeil told the court that he asked Spanos if he was the driver of the car and told him that a blood sample would be taken from him.
But Eddy said neither officer ever talked to her son until later.
“(McNeil) couldn’t have spoken to him while I was there and I never left his side,” she said. “Neither one of them spoke to him until after the blood was drawn.”
The surprise testimony from Eddy prompted the prosecutors to recall McNeil, who had left the courtroom hours earlier after his testimony was finished. During a one-minute reappearance on the stand, McNeil repeated that he talked to Spanos before the blood was taken.
Judge Theresa DiMauro didn’t issue a decision Thursday. Instead the judge gave the prosecution and defense until Sept. 2 to file additional memorandums in the case.
No trial date has been set but the judge said she didn’t expect the case to be ready for a four to five day trial until the end of the fall at the earliest.