The defendant claimed three errors relating to the uncontested admission of his hospital records under authority of G.L. c. 233, § 79. First, he contended that their admission violated the very terms of the statute because their measurement of his blood alcohol content effectively referred to the ultimate question of his criminal liability. Second, he argued that the unavailability of the hospital record keeper at trial for cross-examination upon the accuracy of the certification of the records deprived him of his right of confrontation under the Sixth Amendment to the United States Constitution. Finally, he characterized the trial defense counsel's failure to object to the admission of the medical records as constitutionally ineffective assistance of counsel.
At trial, pursuant to G.L. c. 233, § 79, the Commonwealth introduced in evidence a copy of the defendant's hospital records and a signed form from a South Shore Hospital record keeper certifying “that the attached medical record is a true and accurate copy of the original documents.” The records contained a toxicology report. The Commonwealth then called toxicologist Donovan to explain the significance of the report. She described the process by which blood analysts use a person's serum alcohol level to calculate blood alcohol content. From the defendant's hospital toxicology report, she described his ethanol serum level as 303 milligrams per decileter. From that datum, she calculated that the defendant's blood alcohol content by weight on the night of the accident to have been between .256 and .270 percent, a level more than three times the legal limit.
In pertinent part, G.L. c. 233, § 79, as appearing in St.1959, c. 200, provides as follows:
“Records kept by hospitals ... may be admitted by the court, in its discretion, as evidence ... so far as such records relate to the treatment and medical history of such cases ... but nothing therein contained shall be admissible as evidence which has reference to the question of liability ”
The trial court first found that the records were admissible under the statute, and did not constitute "illegal references to liability.
Discussing the law in this area, the court stated:
"Objectively determinable facts resulting from medical tests and procedures conducted for diagnostic and treatment purposes and appearing in hospital records submitted under the statute may obviously bear on the ultimate question of civil or criminal liability but do not constitute improper allegations, opinions, or conclusions about liability. Subjective impressions or expressions about fault or guilt may not come in through such records. Trial judges will typically filter them out of the records. That material constitutes the forbidden “reference to the question of liability.” See Commonwealth v. Dargon, 457 Mass. 387, 394–395, 930 N.E.2d 707 (2010), and cases cited. See Mass. G. Evid. § 803(6)(B) & note at 260–262 (2011). By contrast, objective data constitute reliable information helpful to the fact finder upon issues of a technical medical nature. The test is the distinction between “a conclusory fact central to the jury's inquiry” and “physical observations from which inculpatory inferences flow.” Id. at 395, 930 N.E.2d 707, quoting from Commonwealth v. Baldwin, 24 Mass.App.Ct. 200, 202, 509 N.E.2d 4 (1987).
The court then held that the blood alcohol test reading belongs to the latter category of “physical observations.”
As far as confrontation, the defendant challenged not the introduction of the substance of the hospital records, but rather their certification by the hospital record keeper. He imputed a testimonial character to the certification of the accuracy of the record. The court stated as follows:
"The certification form has some testimonial characteristics. The keeper of the records signed the form under the pains and penalties of perjury, and created the form in response to a subpoena. However, in Melendez–Diaz v. Massachusetts, supra at 2538–2539, the United States Supreme Court made an explicit exception for “a clerk's certificate authenticating an official record—or a copy thereof—for use as evidence.” Id. at 2538. The Court acknowledged that this type of affidavit is “prepared for use at trial,” but held that the confrontation clause does not apply because such an affidavit merely “certif[ies] to the correctness of a copy of a record” and does not “furnish, as evidence for the trial of a lawsuit, [an] interpretation of what the record contains or shows, or ... certify to its substance or effect.” Id. at 2539, quoting from State v. Wilson, 141 La. 404, 409, 75 So. 95 (1917). See Commonwealth v. McMullin, 76 Mass.App.Ct. 904, 904, 923 N.E.2d 1062 (2010) (rejecting the defendant's argument that he suffered a deprivation of his confrontation rights because he did not have the opportunity to cross-examine the creator of an affidavit certifying records from the Registry of Motor Vehicles).
Holding that there was no confrontation clause violation, the court held that:
"It is clear that the certification form in the present case belongs within this categorical exception. The form certifies that the hospital furnished accurate copies of the defendant's medical records. The form does not vouch for the substance of those records as an accurate representation of the defendant's condition on the night of the accident."
With regard to the issue oif whether admission of the 911 call violated the confrontation clause, the court stated as follows:
"Did the introduction of reference to statements from unknown 911 telephone callers deprive the defendant of his right to confrontation under either the Sixth Amendment or art. 12 of the Massachusetts Declaration of Rights? FN8 Those provisions protect a defendant against the admission of out-of-court testimonial statements. Out-of-court statements “primarily aimed at enabling ‘police assistance to meet an ongoing emergency’ ” are not testimonial. Commonwealth v. Nesbitt, 452 Mass. 236, 248, 892 N.E.2d 299 (2008), quoting from Davis v. Washington, 547 U.S. 813, 828, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). In our circumstances, the 911 telephone callers were alerting the police to an ongoing threat posed by a conspicuously dangerous driver. They were urgent, and not testimonial, communications. See State v. Torelli, 103 Conn.App. 646, 658–662, 931 A.2d 337 (2007) (911 telephone calls reporting erratic driving are not testimonial, citing Davis v. Washington, supra at 822). No constitutional error occurred."Since the court found that the admission of the evidence was lawful (or in some respects not discussed herein was 'harmless'), the court also denied the ineffective assistance claim and the conviction was affirmed.
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