Opinion
No. 12–P–1734.
2013-10-29
COMMONWEALTH v. Michael C. FLYNN.
Therefore, [b]lood alcohol tests are admissible so long as their purpose was medical diagnosis or treatment. Commonwealth v. McLaughlin, 79 Mass.App.Ct. 670, 675 (2011). Contrast Commonwealth v. Sheldon, 423 Mass. 373, 376 (1996) (blood test inadmissible because test was not intended to assist in the achievement of any medical goal).
By the Court (FECTEAU, BROWN & HINES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from a conviction of operating a motor vehicle while under the influence of intoxicating liquor (fifth offense).
He contends that he was denied his right to confrontation by the Commonwealth's failure to produce at trial the hospital nurse who drew a sample of the defendant's blood that later was analyzed and used in the prosecution.
The jury found the defendant guilty of both a per se violation of G.L. c. 90, § 24(1)( a )(i), and of the traditional form of operating while under the influence.
He also claims improper closing argument by the prosecutor. Concluding that there is no merit to these contentions, we affirm. Confrontation rights . The defendant's claim that his confrontation rights were violated when the hospital nurse who drew and labeled a sample of his blood did not testify is simply too attenuated. As the United States Supreme Court stated in Melendez–Diaz v. Massachusetts, 557 U.S. 305, 311 n. 1 (2009): Contrary to the dissent's suggestion, ... we do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution's case. See Commonwealth v. Zeininger, 459 Mass. 775, 787, cert. denied, 132 S.Ct. 462 (2011) (quoting the same). In this case, both the expert who conducted the blood analysis and the expert who mathematically converted the blood serum results into a range of blood alcohol levels testified at trial and were subject to cross-examination. Therefore, the hospital nurse who drew and labeled the defendant's blood was not required to appear to satisfy the defendant's rights under the confrontation clause.
Both the laboratory medical technologist who analyzed the defendant's blood sample at the hospital, deriving a serum ethanol level of 248, and the analyst at the office of alcohol testing who converted this serum ethanol laboratory value to a range of blood alcohol levels of between .21 and .22, testified during trial.
A fortiori, it is settled that medical records of blood analysis do not violate confrontation principles. See Commonwealth v. Riley, 22 Mass.App.Ct. 698, 701–702 (1986); Commonwealth v. Lampron, 65 Mass.App.Ct. 340, 344–346 (2005). For example, in Commonwealth v. Dyer, 77 Mass.App.Ct. 850, 854–855 (2010), we stated:
Medical records generated for evaluation and treatment purposes do not constitute testimonial evidence triggering a constitutional right of confrontation. The Melendez–Diaz Court expressly excluded medical records from ‘this core class of testimonial statements.’ ... Medical records do not have testimonial character because they are procured neither for litigation purposes nor through law enforcement interrogation, nor are they made in anticipation of use in the investigation or prosecution of a crime (citations omitted).
Therefore, [b]lood alcohol tests are admissible so long as their purpose was medical diagnosis or treatment. Commonwealth v. McLaughlin, 79 Mass.App.Ct. 670, 675 (2011). Contrast Commonwealth v. Sheldon, 423 Mass. 373, 376 (1996) (blood test inadmissible because test was not intended to assist in the achievement of any medical goal).
Here, the defendant does not challenge the admissibility of the medical purpose of the blood test,
and did not object to the admission of the hospital records. Thus, it strains reason to suggest that the absence of testimony from the person who takes a blood sample for treatment purposes violates the defendant's right to confront his accusers, especially when the laboratory analysis of the same blood sample appears in an otherwise admissible hospital record. Consequently, even if we were to consider this claim to have been properly preserved, it lacks merit.
While the defendant had contested the medical purpose in a motion to suppress, which was denied, the defendant did not appeal that decision; consequently, we need not discuss the issue.
Closing argument by prosecutor. The defendant also claims here, for the first time, that (1) the prosecutor overstepped permissible bounds in his closing argument and thereby impermissibly engaged in burden shifting, and (2) the prosecutor unfairly disparaged defense counsel .
It does not appear that this claim of error was raised below, but given our conclusion, we need not address the applicable standard of review.
We disagree, and view the case of Commonwealth v. Montez, 450 Mass. 736, 747–748 (2008), as largely dispositive of the first contention, and disagree with the defendant's characterization in his second. See Commonwealth v. Smith, 404 Mass. 1, 7 (1989). We view the prosecutor's remarks as fair comment on the evidence and defense counsel's summation rather than a disparagement of defense counsel. We therefore discern no merit to the defendant's unpreserved claims of error concerning the prosecutor's closing argument.
The prosecutor's remarks at issue are as follows:
Referring to defense counsel's last point, there is no evidence whatsoever before you that the Norwood Hospital did not act appropriately. There is no evidence before you that the blood was drawn improperly. There is no evidence before you. Defense counsel indicates, ‘Well, they didn't do what was proper. They didn't do it the correct way.’ There is no, none, zero evidence before you that that is the case. There's conjecture that that may be the case. But there's no evidence in regards to this .210, .217, .221, in this range that they've given. [Defense counsel is not an expert. [Defense counsel] is an attorney. In regards to bumping into things, how the person would be acting. It's your job to assess what the evidence is in regards to this case. And there's nothing in regards to that that has been presented to you by anyone in this case in regards to that in particular.
Judgment affirmed.