Opinion
19-P-629
06-02-2020
COMMONWEALTH v. DANIELA R. AFONSO.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury convicted the defendant of operating a motor vehicle while under the influence of intoxicating liquor (OUI). On appeal the defendant raises three claims of error relating to the admission of medical records from Massachusetts General Hospital (MGH) and Boston Emergency Medical Services (EMS): the MGH records were not authenticated because they did not have the certification required by G. L. c. 233, § 79; the Commonwealth failed to comply with the notice requirement of G. L. c. 233, § 79G; and references to the defendant's intoxication should have been redacted from the MGH records. We affirm.
Background. 1. Facts. The jury could have found the following facts. Around 1 A.M. on February 12, 2017, State Trooper Andrew Zellar was traveling on Storrow Drive near the Clarendon Street exit in Boston when he noticed that a car had gone off the road onto a marked lane divider and collided with a "crash attenuator." Zellar saw a woman, later identified as the defendant, get out from the driver's seat and "kind of stumble around at the back of the vehicle" before starting to walk down the exit ramp. The defendant's face was bleeding, and she had blood on her hands.
Zellar explained that crash attenuators are large blocks intended to slow cars down before impact if they leave the road.
As Zellar approached, he saw that the defendant was "very unsteady on her feet" and "appeared to almost trip several times." By the time he reached the defendant, she had fallen over and was kneeling on the ground. Zellar called for an ambulance, helped the defendant to her feet, and checked for life-threatening injuries. Zellar observed facial injuries but no others.
Zellar helped the defendant to her car so she could sit down. As he did so, the defendant leaned heavily on his arm and was stumbling. Zellar could smell alcohol on the defendant's breath and noticed that she had glassy, bloodshot eyes and was slurring her speech. A second trooper arriving to assist also smelled a "strong odor of alcoholic beverage" on the defendant's breath. When Zellar asked if she had been drinking, the defendant replied that she had "just come from dinner" and "had drank a bottle of wine at dinner."
The defendant agreed to complete field sobriety assessments, stating that she had no lower body injuries that would prevent her from performing them and that "she'd be fine." As the defendant walked to the exit ramp to take the assessments, she was "very unsteady on her feet" and "kind of stumbling." Her unsteadiness did not appear to Zellar "to be from an injury."
On the first assessment, the nine-step walk and turn, the defendant "missed heel-to-toe on every step" and "stepped off the line on every step." She also raised her arms for balance the entire time, did not execute a proper turn, and took the wrong number of steps. At one point the defendant "almost fell completely over," and Zellar "had to reach in and physically hold her up from falling onto the ground."
Zellar next asked the defendant to perform the one-leg stand. The defendant swayed and raised her arms for balance throughout, hopped a couple of times, and put her foot down at least once. She ultimately stopped the assessment after keeping her foot off the ground for only three seconds (instead of the required thirty). At this point Zellar "was fairly certain that [the defendant] . . . was drunk," but had her perform one more test, the alphabet test. The defendant recited, "A, B, C, D" and then skipped to "T, U, Z."
After the defendant was placed in an ambulance, Zellar observed that she was "acting difficult," "giving very snarky, rude responses to the basic questions that the [emergency medical technicians] were asking her." Zellar also smelled an odor of alcohol in the back of the ambulance where the defendant was sitting. The defendant was transported to MGH, where she was treated for a lip laceration and discharged.
2. Admission of medical records. About eight months before trial, the Commonwealth moved for issuance of a summons under Mass. R. Crim. P. 17 (a) (2), 378 Mass. 885 (1979), directing MGH and EMS to produce the defendant's medical records. The motion was allowed that day with the defendant's assent.
On the first day of trial, the Commonwealth moved in limine to admit the records pursuant to G. L. c. 233, §§ 78 and 79. When the judge asked whether the records were certified, the prosecutor responded affirmatively, stating that she had called the clerk's office the week before to confirm. Defense counsel objected, at least in part on the ground that the Commonwealth had not provided notice of intent to offer the reports under G. L. c. 233, § 79G. The judge found, however, that defense counsel had adequate notice and that the records were admissible.
Much of the sidebar discussion regarding the motion is marked as "indiscernible" or "inaudible."
Before opening statements defense counsel objected again, this time on the ground that the copy of the MGH records in his possession did not have a certification. The prosecutor stated that she did not have a copy of the certification, but reiterated that she had called the clerk's office and received confirmation that the certified records were in the file. The judge then asked the court room clerk to retrieve the records.
Later in the day, the judge confirmed that the MGH records delivered to the clerk's office did not have a certification. The judge concluded that the records were admissible nonetheless, explaining:
"[T]he [prosecutor] did everything right and as it's not as if there is a question about whether it's complete or accurate or anything like that. Both parties have the records. They were summonsed in the normal way.When defense counsel renewed his objection on the second day of trial, the judge further explained her ruling as follows:
"The Clerk's office indicated to the [prosecutor] that the certified copies of the records were there. There's not much else you can do."
"My position . . . is that the Commonwealth sought the records through Rule 17. They were provided to the court through Rule 17. They came in through the court.
"On the morning of the trial or the day before the trial . . . [the prosecutor] contacted the Clerk's office and . . . asked whether the certified medical records were there. [She] was informed that they were. And I don't
believe there's any dispute as to the accuracy of the records or that they're incomplete."
. . .
"[T]hey're paginated pages 1 through 25 . . . and they start with admission and they end with discharge.
"So, I think, under the circumstances it would be unfair to the Commonwealth to not admit the records."
Discussion. 1. Lack of certification. General Laws c. 233, § 79, "operates to provide an exception to the hearsay rule with respect to facts in [medical] records relating to treatment and medical history." Commonwealth v. Gogan, 389 Mass. 255, 263 (1983). In particular, § 79 provides that "[r]ecords kept by hospitals . . . under section seventy of chapter one hundred and eleven shall be admissible . . . so far as such records relate to . . . treatment and medical history . . . and the court may, in its discretion, admit copies of such records, if certified by the persons in custody thereof to be true and complete; but nothing therein contained shall be admissible as evidence which has reference to the question of liability" (emphasis added). G. L. c. 233, § 79. The purpose of this statute is to "spare hospital personnel the burden of spending time in court to verify what is recorded as matter of professional routine and to accord a presumption of reliability to records whose accuracy is relied upon in the treatment of patients." Commonwealth v. Russo, 30 Mass. App. Ct. 923, 926 (1991).
We review a judge's decision to admit records under G. L. c. 233, § 79, for abuse of discretion. See Commonwealth v. Pellegrini, 414 Mass. 402, 407-408 (1993). Here, the defendant argues summarily that the judge should not have admitted the MGH records because of the missing certification. She does not claim that the records were incomplete or inaccurate or that she did not have notice of the Commonwealth's intent to use them at trial. Rather, her argument appears to be that the lack of certification alone required exclusion of the records as a matter of law.
The case law indicates, to the contrary, that deviation from the requirements of G. L. c. 233, § 79, does not automatically render records inadmissible. For example, in Custody of Two Minors, 19 Mass. App. Ct. 552, 560-561 (1985), we concluded that hospital records were properly admitted under § 79, even though the certification was not done by "affidavit" in accordance with the statute. And in Commonwealth v. Lampron, 65 Mass. App. Ct. 340, 344 n.3 (2005), we concluded that out-of-State medical records were properly admitted "[n]otwithstanding the fact that the judge did not explicitly find," as required by § 79, "that the . . . records were required to be kept under that State's law." In both of these cases, the records were deemed admissible because of the presence of other factors that allowed the judge reasonably to find the records to be authentic. Cf. American Velodur Metal, Inc. v. Schinabeck, 20 Mass. App. Ct. 460, 468 (1985), cert. denied, 475 U.S. 1018 (1986) (requirements of G. L. c. 233, § 78 [providing for business records hearsay exception] may be relaxed where there is "[n]o reason . . . for doubting the reliability of the records"). See also Commonwealth v. McCready, 50 Mass. App. Ct. 521, 525 (2000) (hospital records admissible despite departure from provision in G. L. c. 233, § 79, requiring that records be delivered directly to clerk).
We likewise conclude here that the judge did not abuse her discretion in admitting the MGH records despite the absence of the certification required by § 79. As the judge found, the records were properly summonsed, and there was no real dispute about authenticity. The records were paginated consecutively and chronicled events beginning with the defendant's admission to the hospital and ending with her discharge. Even on appeal, the defendant offers no reason to doubt that the records were true and complete. The judge was thus within her discretion to admit them. See Adoption of Peggy, 436 Mass. 690, 703, cert. denied, 537 U.S. 1020 (2002) (even though reports not certified, no prejudice from admission where physician who wrote reports testified and authenticated them); McCready, 50 Mass. App. Ct. at 525 (where defendant agreed at trial that records were certified, "it is no more than a quibble to say now that authentication was faulty"). Cf. American Velodur Metal, 20 Mass. App. Ct. at 469 (despite departure from statutory requirements, no error in admitting business records where they were shown to be reliable and admission was not "unfairly prejudicial in any practical sense").
The cases cited by the defendant, Commonwealth v. Franks, 359 Mass. 577, 580-581 (1971), and Commonwealth v. Millen, 289 Mass. 441, 482, cert. denied, 295 U.S. 765 (1935), stand for the general proposition that hospital records must be excluded absent evidence of authenticity. They do not address whether a certification is the only way to establish authenticity.
2. Notice under G. L. c. 233, § 79G . The defendant next contends that both the MGH records and EMS records should have been excluded because the Commonwealth did not comply with the requirement of G. L. c. 233, § 79G, to provide "written notice of the intention to offer such" records "by certified mail, return receipt requested, not less than ten days before the introduction of same into evidence." Id. The Commonwealth was not required to give such notice, however, because it moved for the admission of the records under § 79, not § 79G. The MGH records plainly qualified as hospital records under § 79, and the defendant did not argue at trial, nor does she argue on appeal, that the EMS records were not admissible under § 79. Moreover, even had she raised such an argument before us, she could not show a substantial risk of a miscarriage of justice because the EMS records "had all the hallmarks of a call summary," which, if produced by MGH with its own records, "would have been admissible under § 79." Commonwealth v. Palacios, 90 Mass. App. Ct. 722, 727 (2016).
General Laws c. 233, § 79G, provides for the admissibility of "an itemized bill and reports, including hospital medical records, relating to medical, dental, hospital services, prescriptions, or orthopedic appliances rendered to or prescribed for a person injured, or any report of any examination of said injured person." "Such records are admissible as evidence of the cost of medical treatment, of the necessity of treatment, or of the diagnosis, prognosis, or opinion of a 'physician or dentist' as to the proximate cause of an injury or as to an injured party's disability or incapacity." Commonwealth v. Palacios, 90 Mass. App. Ct. 722, 724 (2016), quoting G. L. c. 233, § 79G.
For similar reasons, the defendant's § 78 argument also is without merit.
3. References to intoxication. Finally, the defendant contends that, even if the MGH records were properly admitted, the judge should have redacted the following notations: "Given currently intoxicated will image the head and c-spine"; "Per state police at bedside patient is intoxicated and was driving at a high rate of speed when she hit a barrier"; and, "Given clinical intoxication will perform CT head and C-spine for mechanism." The judge ruled the first of these statements admissible "as it had to do with treatment and diagnosis." When the judge then indicated that she would redact the second statement, defense counsel replied, "[I]f you're already going to let the first part in, I would urge the Court to allow that second part." Likewise, as to the third statement, although the judge indicated that she would redact it, counsel stated, "I think they would all have to go hand-in-hand . . . . If the Court is going to let one in, they all should come in." The records were admitted in unredacted form as a result.
The defendant now argues that the judge should have excluded all three statements because they "address the ultimate question of liability." Regarding the first statement, however, there are cases supporting the judge's reasoning that it was admissible because it related to the defendant's medical treatment. See Gogan, 389 Mass. at 263-264 (notation that "Pt. intoxicated" admissible because "related to administering treatment"); Palacios, 90 Mass. App. Ct. at 727-728 & n.7 (judge did not abuse discretion in admitting medical records without redacting notation that defendant was "intoxicated"); Lampron, 65 Mass. App. Ct. at 343 (notation that defendant was "intoxicated" admissible because "obtained and recorded . . . for the purpose of treating the defendant"). And the defendant is hard pressed to argue that the judge abused her discretion in admitting the remaining statements, when the judge said that she would redact them but the defendant advocated for their admission. See Commonwealth v. Feliciano, 442 Mass. 728, 737 (2004), quoting Vassallo v. Baxter Healthcare Corp., 428 Mass. 1, 11 (1998) ("A lawyer cannot try a case on one theory and then, having lost on that theory, argue before an appellate court about alleged issues which might have been, but were not, raised at the trial").
In any event, even assuming that the judge abused her discretion, we conclude that the defendant was not prejudiced by the admission of the statements. The evidence of the defendant's intoxication was overwhelming. The defendant crashed her car and was then seen stumbling around, unsteady on her feet, before falling to her knees. She smelled strongly of alcohol and had glassy and bloodshot eyes and slurred speech. She failed three field sobriety assessments, nearly falling over during one of them, and was "acting difficult" in the ambulance. Finally, she admitted that she had just come from dinner, where she drank a bottle of wine. Given the strength of the Commonwealth's evidence, we can say with fair assurance that the verdict was not substantially swayed by any error. See Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 390-391 (2017) (no prejudice from admission of improper opinion testimony, given evidence that defendant was unable to park her car properly, had glassy and bloodshot eyes and slurred speech, smelled of alcohol, admitted drinking three beers, and failed two of three field sobriety assessments).
Judgment affirmed.
By the Court (Milkey, Shin & Englander, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 2, 2020.