Opinion
Court of Appeals No. A-9698.
October 15, 2008.
Appeal from the District Court, Third Judicial District, Kenai, David S. Landry, Judge, Trial Court No. 3KN-05-1995 CR.
Tracey Wollenberg, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Kelly J. Lawson, Assistant District Attorney, June Stein, District Attorney, Kenai, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Daniel A. Galloway was convicted of driving while under the influence after he crashed and rolled his truck. At his trial, the district court admitted evidence of a blood alcohol test administered by the hospital. Galloway argues the court erred by admitting this blood test result without allowing him to fully voir dire a hospital witness. He also argues the court erred in excluding evidence of a disclaimer the hospital printed on the laboratory report of his blood test result. For the reasons discussed below, we affirm Galloway's conviction.
Facts and proceedings
On November 4, 2005, Galloway was involved in a single-vehicle rollover on the Sterling Highway. The troopers responded, and paramedics transported Gallow ay to the hospital. The test of a blood sample taken from Galloway showed a blood alcohol content of .230 percent. The blood test result was accompanied by a disclaimer in the hospital lab report:
Specimen was received without chain of custody and may not have been handled as a legal specimen. Results may be used for medical purposes only and not for any legal or employment evaluative purposes.
Galloway was charged with driving while under the influence. At trial, Galloway did not challenge the admissibility of his blood test result, but he argued the disclaimer in the lab report was admissible and relevant to challenge the reliability of the blood test evidence. The State argued the disclaimer was irrelevant and not admissible because it pertained to the blood test result's admissibility, a legal issue for the court to decide, not a factual issue for the jury to hear. The State argued that the disclaimer had no probative value and that its admission would confuse the jury and unduly prejudice the State.
AS 28.35.030(a).
District Court Judge David S. Landry found the disclaimer would confuse the jurors because they might believe they were being asked to decide the admissibility of the blood test result. Judge Landry explained that the admissibility of evidence is an issue for the court to decide. Concluding that admitting the disclaimer would confuse the jury and that the danger of unfair prejudice to the State outweighed the probative value of the evidence, Judge Landry ordered the redaction of the disclaimer from the lab report. He also ordered Galloway to not question witnesses about the disclaimer. Galloway appeals.
Discussion
Galloway makes two arguments on appeal. First, he argues he was entitled to voir dire the hospital witness about the meaning of the disclaimer and its relevance to his case before Judge Landry ruled on the admissibility of the blood test result. Second, he argues the trial court erred in excluding the disclaimer and in preventing him from questioning the hospital witness about it at trial.
Admission of the blood test result
Galloway argues the trial court should have allowed him further voir dire of Susan Myers, the hospital's laboratory operations manager, before admitting the blood test result. This argument fails because Galloway did not ask to voir dire Myers on issues relating to admissibility of the lab report before the trial court admitted the report. He also did not challenge the admissibility of his blood test result at trial, and he does not argue on appeal the trial court erred in admitting the blood test result.
The purpose of the voir dire in this context was to establish the admissibility of evidence. Galloway was allowed to voir dire Myers before the court ruled on the admissibility of the lab report. However, Galloway never challenged the admissibility of the lab report, which showed his blood test result, and he did not ask the court to allow him to further voir dire Myers to attack its admissibility.
See Alaska R. Evid. 104(a); BLACK'S LAW DICTIONARY 1605 (Brian A. Garner ed., Thompson West 8th ed. 1999).
Galloway clearly stated on the record he was not challenging the admissibility of the blood test result in the lab report. For example, during opening statements, Judge Landry asked him, "We're not raising any admissibility issue?" He responded, "No. . . . [The State] can show that it's admissible." And during trial, Judge Landry asked Galloway, "You're not going to be objecting to the admission of the hospital records through the records custodian, are you[?]" Galloway replied, "No, Your Honor."
During voir dire of Myers on the hospital lab report and blood test, Galloway raised concerns with the blood test result and argued he should be able to ask about the disclaimer:
The Court: If I could have the parties approach. (bench conference ensues)
The Court: State going to move to admit it at this point?
The State: Yes, and if I need to I can ask a few additional questions to verify that these (indiscernible — whispered).
Defense Attorney: That is a classic example of why that disclaimer is there. We don't know hardly anything about this, how it got anywhere. I mean, that's not a chain of custody. You know, this is not — it's highly questionable. I mean, it's questionable enough to where I ought to be able to be allowed to ask about why that disclaimer is down there and what it says. I mean, this thing is — that's pretty sloppy.
The State: You'll be able to ask them.
Defense Attorney: A ton of people were involved that aren't here.
The reason this dialogue does not support Galloway's argument on appeal is because Judge Landry then commented that Galloway's argument went to the weight of the evidence, not the admissibility of the blood test result on the lab report, and Galloway agreed with the judge:
The Court: Here's what I'm going to do. I'm going to permit the state to introduce the [lab report]. And I will admit it. I will permit the witness to testify as to the result that was given. It doesn't change my earlier ruling about that redaction that was going to be done, but it certainly — I think your argument goes less to the admissibility but more to the weight in this case.
Defense Attorney: Of course it does.
By agreeing that his argument did not relate to the admissibility of the blood test result, Galloway admitted that he was not seeking to voir dire Myers to challenge the admissibility of the blood test result. By failing to challenge the admissibility of the blood test result throughout the trial and by failing to ask the court for permission to voir dire Myers about issues relating to the admissibility of the blood test result, Galloway did not preserve his claim that the court erroneously limited his voir dire of Myers at trial.
Because Galloway did not preserve the issue for appeal, this court will review the evidentiary ruling for plain error. A medical blood alcohol test result is admissible as a business record if the result is recorded by the hospital and the hospital record meets the foundational requirements of the business records exception to the hearsay rule. A blood test result meeting these requirements is admissible "unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness." In Sullivan v. Anchorage, the supreme court ruled that a hospital's blood alcohol test result was admissible as a business record in a DWI trial upon proper foundation. Sullivan had appealed the admission of his blood test result, claiming the test result could not be admitted without evidence of who drew the blood and proper calibration of the testing devices. The supreme court stated:
Alaska R. Evid. 803(6); Sullivan v. Anchorage, 577 P.2d 1070, 1073 (Alaska 1978).
Id. at 1072-73.
This test was ordered for medical reasons and it is reasonable to assume that hospital staff members are competent in the performance of their duties. Crucial life and death decisions are often made in hospitals on the basis of this presumption. We do not believe there is anything to gain by requiring a mechanistic parade of witnesses to ensure that the possibility of error or tampering is precluded beyond any doubt.
Id. at 1073.
In Galloway's case, Myers, the hospital witness, testified about Galloway's blood test, the qualifications of the employee who performed the blood test, the equipment on which the test was administered, and the handling of blood samples in the laboratory. She also testified that laboratory records are made and kept in the normal course of business. After this foundation was established, Judge Landry admitted the evidence. Galloway does not argue on appeal this ruling constitutes plain error.
Furthermore, a party challenging the trial court's ruling as plain error must show that his attorney had no tactical reason for withholding objection. Galloway has not made this showing. It appears from the record that Galloway's attorney had a tactical reason for withholding his objection. At the beginning of trial, Galloway's attorney announced to the court that he did not care about the admission of the blood test evidence because the issue in the case was whether Galloway had been driving. In fact, Galloway testified that he had been drinking on the night in question, possibly nine beers, and he had consumed methadone, a narcotic that interacts with alcohol. He testified that although he thought he was capable of driving, he let someone he had met at the bar that night drive his truck after they left the bar because he thought the other person had consumed less alcohol than he had and was more coherent.
Henry v. State, 861 P.2d 582, 589 (Alaska App. 1993); Massey v. State, 771 P.2d 448, 453 (Alaska App. 1989).
Because Galloway had a tactical reason for not objecting to admission of the evidence, Galloway has not shown the court committed plain error when it admitted the lab report containing the blood test result. Furthermore, because Galloway did not seek additional voir dire relating to the admissibility of the laboratory report, he has not shown the court committed plain error in limiting his voir dire.
See id.
Exclusion of the hospital disclaimer
Galloway argues the trial court erred in excluding the disclaimer and preventing him from cross-examining Myers about it. At trial, Galloway argued the disclaimer was admissible and relevant to the weight of the blood test evidence. He argued he should have been permitted to question Myers about the relevance of the disclaimer to the hospital's own opinion about the reliability of the blood test.
Judge Landry found the disclaimer language would confuse the jurors because they might believe they were being asked to decide the issue of admissibility, an issue for the court to decide. Because the disclaimer would confuse the jury, and because the danger of unfair prejudice from admitting the evidence outweighed the probative value of the evidence, Judge Landry ordered the redaction of the disclaimer from the lab report and ordered Galloway not to question witnesses about the disclaimer. Judge Landry allowed Galloway to attack the blood test evidence in other ways: by cross-examining Myers on the testing of the blood sample, the blood test result, the handling of the blood sample, and the chain of custody.
On appeal, Galloway does not discuss the trial court's ruling. Galloway argues the disclaimer should have been admitted under the rule of completeness and that the exclusion of the disclaimer may have discouraged the jury from deliberating on both theories of DUI charged, the "impairment" theory and the "blood alcohol" theory. Galloway also renews his argument that the disclaimer should have been admitted because it was relevant to the weight the jury should give the blood test evidence. He argues he should have been able to cross-examine the hospital witness, Myers, about the disclaimer to establish whether the disclaimer represented the hospital's own opinion of the reliability of the lab test result.
Galloway did not raise the first two arguments, that the disclaimer should have been admitted under the rule of completeness and that exclusion of the disclaimer would discourage deliberation on both theories of DUI, at trial. Furthermore, he does not argue Judge Landry committed plain error on either of these bases. Therefore, we find Galloway has not shown error on these issues.
See Alaska R. Crim. P. 47(b); Dimmick v. State, 449 P.2d 774, 776 (Alaska 1969).
On the remaining issue, that Galloway should have been allowed to attack the weight of the blood test evidence by cross-examining Myers about the disclaimer, we review the trial court's ruling for an abuse of discretion. At trial, Galloway moved to admit the disclaimer language, and the State opposed. The State asserted the disclaimer was "a boilerplate form statement" that the hospital included on every lab report containing a blood test result, regardless of how the blood sample was handled. Galloway did not offer any information contradicting this offer of proof by the State. Galloway had the opportunity to fully explore how the blood was taken, the chain of custody of the blood, and how the blood was tested. Furthermore, he was able to point out deficiencies in the State's evidence, and he argued the weaknesses in the evidence to the jury.
See Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980).
We conclude the judge's ruling was not an abuse of discretion. Based on the information the court had before it, the disclaimer was a standard statement issued by the hospital with the result of every blood test it administered, regardless of how the blood test was handled. As such, it was not an abuse of discretion for the trial court to conclude that the probative value of the disclaimer was minimal and outweighed by the danger of unfair prejudice to the State and the danger of confusion of issues for the jury. Conclusion
See Alaska R. Evid. 403.
Accordingly, Galloway's conviction is AFFIRMED.
A fter D aniel G allow ay suffered serious injuries in a motor vehicle accident, he was taken to Central Peninsula Hospital for treatment. As part of that treatment, the hospital laboratory tested Galloway's blood for alcohol. An unidentified hospital employee typed the following caveat onto the page of the laboratory report that summarized the test result:
[This blood] [s]pecimen was received without chain of custody and may not have been handled as a legal specimen. Results may be used for medical purposes only and not for any legal or employment evaluative purposes.
Galloway's defense attorney repeatedly asked the trial judge for permission to question a hospital employee — Ms. Susan Myers, the laboratory manager — about the significance of this disclaimer, but the trial judge refused to allow the proposed questioning. I conclude that this was reversible error.
Taking the words of the disclaimer at face value, one plausible reading is this: The hospital could not guarantee that the blood sample had been properly drawn and properly preserved from contamination, but — because Galloway needed immediate treatment — the hospital was forced (as a matter of practical necessity) to disregard these risks and rely on the test result. Nevertheless, because of these uncertainties, the hospital wished to alert both courts and employers that they should not necessarily rely on the test result in a criminal prosecution, or in civil litigation, or in employment disciplinary proceedings.
If this was, indeed, the meaning of the caveat that accompanied the blood test result, then this caveat was relevant to the questions of (1) whether the test result should be admitted as a business record under Alaska Evidence Rule 803(6) and, if the test result was admitted, (2) the weight that a jury should give to this evidence.
But when Galloway's defense attorney sought permission to ask the laboratory manager to explain the meaning of the caveat, District Court Judge David Landry repeatedly refused. Judge Landry gave several reasons for this refusal.
First, Judge Landry declared that he already knew what the laboratory caveat meant — and that it had little or no probative value. Judge Landry told the defense attorney the hospital's primary reason for including this disclaimer was "the fact that hospitals don't want to get called in[to court] and get themselves tied up testifying".
Because the court had heard no evidence on this point, Galloway's attorney asked Judge Landry if he was taking judicial notice that this was the hospital's purpose for adding the disclaimer to the laboratory test result document. In response, Judge Landry backed away from his earlier statement. He now declared that he did not know what the hospital's purpose was — but he further declared that no hospital employee would know the purpose of the disclaimer either:
Defense Attorney: May I ask, for the record: Was the court taking judicial notice that the one reason for this [disclaimer] language being included in the [hospital's] medical record is because hospital personnel don't like to come and testify?
The Court: And that's just my own belief about this. You know, as I indicated, I don't know why this is. [ Sic: Judge Landry indicated earlier that he knew precisely why the hospital inserted the disclaimer.] . . . And I think you could ask a dozen hospital staff, and they probably wouldn't know why [that disclaimer was included in this hospital record]. They're all going to suppose, and do the same thing that we're doing [ i.e., speculate about the meaning of the language].
Thus, Judge Landry offered two different factual premises for his ruling. First, he declared that the disclaimer was irrelevant because the hospital management inserted this language for the sole reason of deterring courts from subpoenaing hospital employees. Then, when this explanation was questioned, Judge Landry declared that the disclaimer was irrelevant because even hospital employees could probably not offer any meaningful testimony about what the disclaimer meant.
There is no support in the record for either one of these factual premises. No one testified that the disclaimer was intended solely to buffer hospital employees from giving testimony in court. And there is no support in the record for Judge Landry's second pronouncement — that there was no hospital employee capable of explaining the significance of the disclaimer.
Judge Landry offered a third basis for prohibiting Galloway's attorney from eliciting testimony about the disclaimer. The judge expressed concern that if he ruled that the blood test result was admissible, but if the jurors also heard testimony about the hospital's disclaimer, the jurors would be led to believe that they should question or re-evaluate the court's ruling on the admissibility of the blood test result. Based on this concern, the judge declared:
The Court: [The] language [of the disclaimer] is extremely dangerous, from the court's perspective, in terms of allowing the jury [to believe] that they have something here to decide that is clearly the province of the court. [For this reason,] I believe that [evidence of this disclaimer] is more prejudicial than probative. And it's going to be primarily a confusion to the jury. So I will not permit this language, or any . . . version of this language, in the form of a question, referring to the legality, or anything like that, to be posed.
I acknowledge that Judge Landry's concern was a valid one. It was Judge Landry's responsibility to decide the question of whether the blood test result was admissible as evidence at Galloway's trial, and the jury was obliged to accept the judge's decision on this issue. To the extent that the hospital's disclaimer might suggest that the hospital staff had already decided that the judge should not allow the blood test result into evidence, the disclaimer might tend to mislead the jurors concerning the judge's authority and their own duty as jurors.
But this concern could easily be addressed by a curative jury instruction explaining that all decisions regarding the admissibility of evidence are made by the trial judge, and that it is the jurors' duty to accept the trial judge's decisions on these matters, although the jurors are free to decide what weight the evidence should receive.
These are standard concepts in the law, and they are readily understandable. But instead of drafting a jury instruction to elucidate these matters and guide the jury's consideration of the evidence, Judge Landry excluded all evidence of the hospital's disclaimer. This was an abuse of discretion.
For these reasons, I conclude that Judge Landry committed reversible error when he refused to allow Galloway's attorney to question the hospital's laboratory manager on the meaning of the hospital's blood-test disclaimer.