Opinion
Record No. 1937-93-3
Decided: December 13, 1994
FROM THE CIRCUIT COURT OF THE CITY OF STAUNTON, Rudolph Bumgardner, III, Judge
Affirmed.
Robert T. Garnett, Assistant Public Defender (William E. Bobbitt, Jr., Public Defender, on brief), for appellant.
Richard B. Smith, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judge Barrow and Senior Judge Hodges
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
The judgment of the Circuit Court of the City of Staunton finding Samuel Eugene (Bo) Benson guilty of second degree murder is affirmed for the following reasons.
1. The record does not indicate that appellant established the proper foundation for the admissibility of the jail receiving form under the business records exception to the hearsay rule. Evidence is admissible under the business records exception to the hearsay rule when a "circumstantial guarantee of trustworthiness" is shown. Frye v. Commonwealth, 231 Va. 370, 387, 345 S.E.2d 267, 280 (1986); Tickle v. Commonwealth, 11 Va. App. 558, 565, 400 S.E.2d 534, 538 (1991) (citations omitted). "[T]his guarantee is provided where evidence shows the regularity of preparation of the records and reliance on them by their preparers or those for whom they are prepared." Frye, 231 Va. at 387, 345 S.E.2d at 280 (1986).
In this case, appellant only established that the nurse was the custodian of the medical records. The nurse did not testify that the receiving form was a "business record kept in the ordinary course of business." Appellant did not show the regularity of the preparation of the records or reliance on them by their preparers or those for whom they are prepared. While defense counsel's recorded proffer states that the receiving form is being offered as a business record, merely stating that it is a business record kept in the ordinary course of business does not make it so.
"The admissibility of evidence is within the broad discretion of the trial court, and a ruling will not be disturbed on appeal in the absence of an abuse of discretion." Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988) (citation omitted). Because appellant failed to lay the proper foundation under the business records exception to the hearsay rule, the trial judge did not abuse his discretion in refusing to admit the document.
Even if it were error for the trial judge not to have admitted the jail receiving form, such error would be harmless. "In Virginia, non-constitutional error is harmless '[w]hen it plainly appears from the record and the evidence given at trial that the parties have had a fair trial on the merits and substantial justice has been reached.'
Code Sec. 8.01-678. '[A] fair trial on the merits and substantial justice' are reached if an error at trial has [not] affected the verdict." Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (emphasis deleted). Appellant wanted to introduce the jail receiving form to show that he was cut by a knife during the altercation which ended the victim's life. This, appellant claims, would have corroborated his testimony that Jeff Simmons, and not he, stabbed the victim. The jail receiving form does not support appellant's contention that he was cut by a knife.
2. The nurse's testimony regarding appellant's librium prescription was immaterial. " '[E]vidence is relevant if it tends to establish the proposition for which it is offered.' Evidence is material if it relates to a matter properly at issue." Evans-Smith v. Commonwealth, 5 Va. App. 188, 196, 361 S.E.2d 436, 441 (1987) (quoting Charles E. Friend, The Law of Evidence in Virginia Sec. 134 (2d ed. 1983)). Appellant has shown no issue to which the testimony would have related. Appellant's open-ended proffer that without the nurse's testimony he may have been prejudiced in some way does not make the nurse's testimony relevant. Moreover, the fact that appellant may or may not have required detoxification was not an issue in the case.
Even if the substance of the nurse's testimony would have been relevant, she would not have been allowed to testify about appellant's librium prescription. The prescribing doctor would have been the only qualified witness to testify that the drug was prescribed specifically for detoxification in appellant's case regardless of the policy of the jail concerning the use of the drug. Accordingly, we find that the trial judge did not abuse his discretion in refusing to allow the testimony.
Affirmed.