Opinion
No. 11–P–1323.
2012-06-6
COMMONWEALTH v. Pedro ALVAREZ.
By the Court (GRAHAM, KATZMANN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from Superior Court jury convictions of rape and indecent assault and battery.
On appeal, the defendant claims that his medical records were erroneously admitted and that their admission violated his confrontation rights.
The jury also convicted the defendant of furnishing a false name to a law enforcement officer after arrest. This conviction falls within the defendant's generally-worded notice of appeal but he advances no argument related to it. We therefore affirm it without further discussion.
1. Admissibility of hospital records. For the first time, on appeal, the defendant challenges the admissibility of the hospital records on the grounds that no evidence was introduced at trial to establish that conducting blood alcohol tests was routine for the type of injuries the defendant presented.
For medical records containing information about blood tests to be admitted pursuant to G.L. c. 233, § 79,
“there need be no showing that blood tests are related to specific treatment or diagnostic inquiry if there was evidence that blood tests are standard procedure in the hospital for the sort of medical problem presented.” Commonwealth v. Russo, 30 Mass.App.Ct. 923, 925 (1991). Whether a blood alcohol test is a standard or routine procedure can be inferred from the record itself. Commonwealth v. McLaughlin, 79 Mass.App.Ct. 670, 676 (2011). Here, the record discloses that the defendant arrived at Brigham and Women's Hospital after being punched, getting hit with a keyboard, jumping from a window one level above ground, and hitting his head on an electrical box. The police had the defendant seek medical treatment after observing lumps, cuts, and contusions on his face. The defendant received a thorough examination, which included X-rays and a variety of blood tests that included blood count, glucose levels, enzymes and bilirubin, blood chemistry, and the toxicology screening. See Russo, 30 Mass.App.Ct. at 926 (blood test results admissible because defendant who arrived at hospital with a broken leg, broken arm, and facial lacerations “received a full ‘work up,’ “ which included a “battery of blood tests”); McLaughlin, 79 Mass.App.Ct. at 676 (blood alcohol test results admissible where “the record itself indicates that the ... test constituted a part of a series of routine tests, all of which hospital staff conducted for medical purposes”). Contrast Commonwealth v. Sheldon, 423 Mass. 373, 375–376 (1996) (test results inadmissible where doctor ordered tests with the purpose of showing that defendant was not intoxicated). Thus, the records indicating that the blood alcohol test was conducted were admissible.
“Records kept by hospitals, dispensaries or clinics, and sanatoria under section seventy of chapter one hundred and eleven shall be admissible ... as evidence in the courts of the commonwealth 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.” G.L. c. 233, § 79, as appearing in St.1959, c. 200.
The defendant also challenges the admissibility of the records stating that he was intoxicated. The records were admissible because “an observation about alcohol on the patient's breath is admissible as part of a hospital record.” Commonwealth v. Gogan, 389 Mass. 255, 264 (1983). See Commonwealth v. Lampron, 65 Mass.App.Ct. 340, 343–344 (2005) (medical records containing notations “positive for ETOH,” “intoxicated,” and “odor of ETOH” were admissible because “no doubt ... that the medical personnel obtained and recorded the information contained in the medical records for the purpose of treating the defendant and relied on that information to treat him”).
In sum, the admission of the defendant's hospital records was proper under G.L. c. 233, § 79.
2. Confrontation clause. The defendant argues that the admission of the medical records violated his confrontation rights because the records were testimonial as they were created after his arrest to support the prosecution's theory that the defendant acted the way he did because he was intoxicated. We disagree.
Medical records that are “generated for evaluation and treatment purposes do not constitute testimonial evidence triggering a constitutional right of confrontation ... 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.” Commonwealth v. Dyer, 77 Mass.App.Ct. 850, 854–855 (2010).
Here, there is no indication that the medical records were created for a purpose other than the evaluation and treatment of the defendant. There is no evidence that the police or anyone else prompted the medical personnel to create the records with the purpose of using them in the defendant's prosecution. The record only shows that the officers were present during the defendant's examination. See Lampron, 65 Mass.App.Ct. at 345–346 (no violation of confrontation rights where notations on record were related to evaluation of defendant's condition and there was no indication that records were created in anticipation of an investigation or prosecution of a crime). See also Dyer, 77 Mass.App.Ct. at 855 (medical records containing information about blood alcohol tests “implicated no right of confrontation”).
Thus, the admission of the medical records did not violate the defendant's confrontation rights.
3. No substantial risk of miscarriage of justice. Even assuming error, the admission of the records did not create a substantial risk of miscarriage of justice. Because the evidence that the defendant was drinking alcohol on the night of the charged crimes was overwhelming and not in dispute, the admission of statements in his medical records to this effect cannot engender “a serious doubt whether the result of the trial might have been different had the error not been made.” Commonwealth v. Randolph, 438 Mass. 290, 297 (2002), quoting from Commonwealth v.. Azar, 435 Mass. 675, 687 (2002).
Judgments affirmed.