Opinion
19-P-411
04-30-2020
COMMONWEALTH v. Melissa A. CLIFFORD.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A District Court jury convicted the defendant, Melissa Clifford, of assault and battery. On appeal, she contends that the judge impermissibly admitted portions of the victim's medical records in evidence. The defendant maintains that references in the medical records to the details of how the victim received her injuries should have been excluded because they relate to liability and were testimonial statements of a nonwitness. We affirm.
Background. The defendant challenged two statements that appear in the victim's medical record within a form entitled "ED Encounter Report" (report). The report consisted of twenty-one pages and contained numerous entries including nurses' notes, vital signs, past medical history, diagnosis, physical exam, and lab results. The two challenged statements appear in the same note from a registered nurse. Both had been partially redacted by striking the word "Momma." The first statement includes observations of injuries on the victim's arms and buttocks and the following quote from the victim: "(redacted) did it with a broom." The entry continues indicating that the nurse noted that the victim had a front tooth missing and when the victim was asked about the missing tooth, the victim stated, "(redacted) punched me." The defendant requested that these statements be further redacted. After a hearing, the motion judge ruled that the challenged portions of the medical records were admissible as statements relating to medical diagnosis and treatment.
Discussion. The defendant objected to the admission of the two portions of the victim's medical records, and requests that we review her claim for prejudicial error. See Commonwealth v. Cole, 473 Mass. 317, 321 (2015). "Generally, determinations as to the admissibility of evidence lie ‘within the sound discretion of the [trial] judge.’ " Commonwealth v. Jones, 464 Mass. 16, 19-20 (2012), quoting Commonwealth v. Dunn, 407 Mass. 798, 807 (1990). We review the judge's ruling for abuse of discretion.
Where an objection, that rights of confrontation guaranteed by the Sixth Amendment to the United States Constitution were violated, has been properly preserved, we review the judge's decision to determine if an error occurred and whether any error was "harmless beyond a reasonable doubt." Commonwealth v. Nardi, 452 Mass. 379, 394 (2008).
An abuse of discretion occurs where the judge "made a ‘clear error of judgment in weighing’ the factors relevant to the decision ... such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014), quoting Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008).
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Relying on G. L. c. 233, § 79, and Crawford v. Washington, 541 U.S. 36, 53-54, 68-69 (2004), the defendant contends that since the victim did not testify and the challenged statements of the victim went to the issue of liability and were testimonial in nature, the defendant was deprived of her rights to confront and cross-examine her accuser.
"In circumstances in which the Commonwealth offers out-of-court statements made by a declarant who does not testify at trial, both the rule against hearsay and the confrontation clause come into play and require a ‘two-step inquiry.’ Commonwealth v. Simon, 456 Mass. 280, 295 (2010)." Commonwealth v. Wilson, 94 Mass. App. Ct. 416, 421 (2018). First, we consider whether the statement is admissible under our rules of evidence, and if so, we then determine "whether admission of the statement would violate the confrontation clause of the Sixth Amendment." Commonwealth v. Irene, 462 Mass. 600, 609, cert. denied, 568 U.S. 968 (2012), quoting Commonwealth v. Linton, 456 Mass. 534, 548 (2010).
1. Medical records exemption to hearsay rule. "Records kept by hospitals ... may be admitted ... as evidence in the courts of the commonwealth so far as such records relate to the treatment and medical history of such cases." G. L. c. 233, § 79. See Mass. G. Evid. § 803(4), (6)(B) (2019). "[W]e have considered the contents of hospital medical records to be reliable, ‘because the entries relating to treatment and medical history are routinely made by those responsible for making accurate entries and are relied on in the course of treating patients.’ " Irene, 462 Mass. at 612, quoting Doyle v. Dong, 412 Mass. 682, 685 (1992). "[T]he physician's record of the patient's own account of [her] medical history generally would be admissible because of the presumptive reliability of the patient's statement to a physician consulted for treatment." Bouchie v. Murray, 376 Mass. 524, 529 (1978).
Further, G. L. c. 233, § 79, "has long been construed to permit the admission of a record that relates directly and primarily to the treatment and medical history of the patient, ‘even though incidentally the facts recorded may have some bearing on the question of liability.’ " Commonwealth v. Dube, 413 Mass. 570, 573 (1992), quoting Leonard v. Boston Elevated Ry., 234 Mass. 480, 482-483 (1920). "Our decisions have demonstrated liberal interpretation of the statute in the admission of hospital records." Commonwealth v. Franks, 359 Mass. 577, 579 (1971). "In application this liberal construction has permitted the admission in evidence of statements in hospital records bearing on criminal culpability that seem to relate at most only incidentally to medical treatment." Dube, 413 Mass. at 573.
Here, the entries in question appear as medical observations and history of the victim, not as legal conclusions concerning the charged crime. See Commonwealth v. Torres, 479 Mass. 641, 654 (2018). The victim was brought to the hospital with various injuries. Thus, facts regarding how the injuries occurred were important information that could influence the victim's treatment at the hospital. See Commonwealth v. McGann, 484 Mass. 312, 319-320 (2020) (statement in victim's certified medical records, "repeatedly beat him about the head/face and bit him several times in arms and also came after him with steak knife," admissible as related to cause of victim's injuries and relevant to treatment); Cole, 473 Mass. at 324 (facts relating to how injury occurred are important factors that would have direct bearing on treatment at hospital).
We conclude there was no error in the judge's ruling that the records related to obtaining medical treatment and were admissible pursuant to G. L. c. 233, § 79.
2. Confrontation clause. Relying on Crawford, 541 U.S. at 53-54, 68-69, the defendant maintains that the two statements in the medical record violated her rights under the confrontation clause of the Sixth Amendment to the United States Constitution, because the victim was not a witness at trial and the victim's statements in the medical record were testimonial in nature. "The confrontation clause bars the admission of testimonial out-of-court statements by a witness who does not appear at trial unless the witness is unavailable to testify and the defendant had an earlier opportunity for cross-examination." Irene, 462 Mass. at 617.
This same issue was addressed in Commonwealth v. Lampron, 65 Mass. App. Ct. 340 (2005), where we held that statements in a medical record relating to evaluation and treatment, where there is nothing to suggest that "the notations were made in anticipation of their use in the investigation and prosecution of a crime," are not testimonial and do not violate the confrontation clause. Id. at 345-346. See Irene, 462 Mass. at 618.
Here, the two notes were part of a twenty-one page report containing the records of the victim's evaluation and treatment at the emergency department. Nothing in the challenged notations indicates that the information was sought for purposes other than evaluation and treatment of the victim. Accordingly, we determine that the statements were not testimonial and their admission in evidence did not violate the confrontation clause.
Judgment affirmed.