Opinion
14-P-641
01-15-2016
COMMONWEALTH v. THOMAS BAILEY.
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
After a jury trial in the Superior Court, the defendant was convicted of indecent assault and battery on a child under fourteen. On appeal, he argues that the trial judge erred by admitting in evidence medical records that: (1) did not comply with the statutory requirements of G. L. c. 233, § 79; (2) included testimonial hearsay in violation of the defendant's rights under the confrontation clause of the Sixth Amendment to the United States Constitution; and (3) were improperly redacted. We affirm.
Background. The jury could have found the following facts. On September 25, 2010, the victim, the defendant's ten year old niece, spent the night at the defendant's home. That night, the victim shared a bed with her sister in the defendant's daughter's basement. On the morning of September 26, 2010, the victim heard the defendant enter the bedroom and say "hi." The defendant knelt down next to the bed, pulled down the victim's pants and underwear, and began to lick her vagina. For five minutes the defendant assaulted the victim, pausing once when the defendant's son came down the basement stairs to enter his bedroom. During the assault, the victim's little sister remained asleep. The victim did not see the defendant's face, but she felt his beard against her vagina.
The victim told her mother of the assault later that day. The victim's mother took her to Saints Medical Memorial Hospital in Lowell to be examined that night. At the hospital, the victim was treated by Dr. Katja Von Tiesenhausen and Erica Peladeau, a trained S.A.N.E. nurse. The nurse preserved the victim's underwear, which was later tested for deoxyribonucleic acid (DNA) evidence. DNA testing revealed the defendant as a major contributor to the male profile obtained from the center portion of the victim's underwear, and a potential contributor to the interior crotch of the underwear. Over the defendant's objection, the judge admitted in evidence the victim's medical records from Saints Medical Memorial Hospital, subject to redactions.
Sexual Assault Nurse Examiner
Discussion. 1. Admissibility of hospital records. The defendant argues that the admission of the victim's medical records, pursuant to G. L. c. 233, § 79, was error because the records were delivered to the Commonwealth and not the court clerk. We disagree.
General Laws c. 233, § 79, "permits the court, in its discretion, to allow in evidence hospital records to prove the truth of the facts in the record as they relate to the medical history and treatment." Commonwealth v. Pellegrini, 414 Mass. 402, 407-408 (1993). The statute requires that the records be certified by a custodian of the records and delivered to the clerk of the court to establish their authenticity. See § 79, supra. Here, the Commonwealth sought to introduce the records of the victim's treatment at the hospital on the day of the assault. The defendant objected because the records had not been delivered to the clerk's office before being provided to the Commonwealth. The defendant had not disputed the content of the records in the two and one-half years since the Commonwealth had disclosed them. Nor did he challenge the authenticity of the records. Moreover, the records were certified by the hospital's keeper of records and the examining nurse identified the records and testified to their content. Since the authenticity of the records was not in dispute, we discern no error. See Commonwealth v. McCready, 50 Mass. App. Ct. 521, 525 (2000) (the delivery of the records to counsel instead of the clerk of court as required by G. L. c. 233, § 79, was a trivial departure from the statute's text where the authenticity of the records was not at issue).
The defendant also argues that the records were not properly admitted pursuant to G. L. c. 233, § 79G. Section 79G has the similar purpose of creating a hearsay exception for medical records and providing procedures for authenticating the records offered for admission. See O'Malley v. Soske, 76 Mass. App. Ct. 495, 497-498 (2010). Since the defendant did not question the authenticity of the records, similarly, the trivial departure from § 79G's text does not constitute error.
2. Confrontation Clause. The defendant further contends that his rights under the confrontation clause of the Sixth Amendment were violated by the admission of statements by the victim's physician, Dr. Katja Von Tiesenhausen, who did not testify at trial. Specifically, the defendant argues that the statements "Diagnosis [--] Primary: Sexual Assault - alleged, observation or examination," and "FINAL DIAGNOSIS [--] Sexual Assault - alleged, observation or examination" were ultimate conclusions that were not admissible. We disagree. First, the statements that the defendant identifies were redacted by the Commonwealth and never seen by the jury. However, even if the statements were submitted to the jury, they were admissible under the hearsay exception created by G. L. c. 233, § 79, and were not testimonial. There was no error.
To determine whether an out-of-court statement violates a defendant's rights under the confrontation clause, "we undertake a two-step inquiry." Commonwealth v. Irene, 462 Mass. 600, 609 (2012). "First, we examine whether the statement is admissible under ordinary evidence rules, 'i.e., whether it qualifies for a hearsay exception.' If it is admissible pursuant to a hearsay exception, we then consider 'whether admission of the statement is prohibited by the confrontation clause of the Sixth Amendment'" (citations omitted). Ibid. "[W]here statements contained in hospital medical records demonstrate, on their face, that they were included for the purpose of medical treatment, that evident purpose renders the statements both nontestimonial as to the author of the record, and as falling within the scope of § 79." Id. at 618.
While statements for treating purposes are admissible, ultimate conclusions concerning the charged crimes "must be redacted." Commonwealth v. Dargon, 457 Mass. 387, 394 (2010). In the present case, the doctor's statements were not ultimate conclusions. The word "alleged" prefaces the doctor's notations in both statements. The word "alleged" indicates the doctor's tentative opinion, which is sufficiently related to the treatment and medical history of the victim. In Commonwealth v. McNickles, 22 Mass. App. Ct. 114, 123-124 (1986), we determined that the words "alleged rape" were not an ultimate conclusion, but merely incidental to the complainant's treatment and medical history. Thus, the statements were admissible under the statute and there was no confrontation clause violation.
3. Redaction. The defendant also contends that he was prejudiced by the improper admission of statements in the medical records that the judge had ordered redacted. While the Commonwealth's oversight was error, we conclude that it does not warrant reversal.
Over the defendant's objection, the judge admitted the victim's medical records pursuant to G. L. c. 233, § 79, but ordered the Commonwealth to redact references to "abuse," "assault," and "assailant." Despite the judge's order, the Commonwealth failed to redact several such references in the records. In addition, the Commonwealth left completely visible the preprinted title, "MASSACHUSETTS PROVIDED [REDACTED] REPORT FOR PEDIATRIC ASSAULTS/ABUSE (<[twelve] YEARS OF AGE)," and partially visible "DISCHARGE: SEXUAL ASSAULT, RAPE." The admission of these impermissible references was error. See Dargon, supra at 396 (declaring that the improper admission of conclusory terms, such as "assault" and "assailant" was error).
Review of the record reveals that the defendant made a strategic decision to admit references to "abuse" and "assault." These statements were permissibly before the jury.
The defendant also contends that "sexual crimes" were not properly redacted, specifically the statement "child told her [that] her uncle 'licked my privates." The judge, in her discretion, permitted the admission of that statement. There was no error in the statement's admission.
The defendant and the Commonwealth disagree as to the standard of review. The Commonwealth argues that the error was not preserved because the defendant ultimately stated that he was "content" with the medical records submitted to the jury. Therefore, according to the Commonwealth, "we [should] review to determine whether the admission of the records created a substantial [risk] of a miscarriage of justice." Commonwealth v. Francis, 450 Mass. 132, 138 (2007). The defendant suggests that his objection to the admission of the records during trial preserved the error and, therefore, we should review only for prejudice. See Irene, 462 Mass. at 618-619. We need not resolve this dispute because, even if we apply the standard the defendant advocates, we find no prejudice. "An error is not prejudicial if it 'did not influence the jury, or had but very slight effect.'" Id. at 618, quoting from Commonwealth v. Cruz, 445 Mass. 589, 591 (2005). The evidence in the case was strong. The victim's testimony was corroborated by DNA evidence found in her underwear. In addition, the impermissible references in the medical records were merely cumulative of the multiple statements in the records properly admitted pursuant to G. L. c. 233, § 79. Therefore, we cannot say that the error materially influenced the verdict.
Judgment affirmed.
By the Court (Vuono, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: January 15, 2016.