Moon v. State

¶1dissenting.

¶2I respectfully dissent.

¶3The issue is whether admitting Moon’s hospital record into evidence, including particularly the results of the blood alcohol test, violated Moon’s right “to be confronted with the witnesses against him.” U.S. Const. Amendment VI. Here the business records statute was the exclusive basis for evidentiary competency. But the Confrontation Clause does not prohibit a court in a criminal case from receiving into evidence a hospital record reporting the objective results of a scientific test which was ordered for purposes of treatment and which was conducted by a technician who is independent of the police. In my view the conclusion of the majority is not only legally incorrect but, by placing its holding on constitutional grounds, the Court needlessly *374brings into question the use in Maryland criminal cases of the most trustworthy exceptions to the hearsay rule.

¶4Moon’s file from University Hospital came into evidence as a business record under Md.Code (1974, 1984 Repl.Vol.), § 10-101 of the Courts and Judicial Proceedings Article. The foundation for admission was by a stipulation, the effect of which was as if a mere custodian of the records who had no personal knowledge had testified. Moon’s trial counsel, in arguing against admissibility of the laboratory report, at times made statements somewhat inconsistent with his having stipulated a foundation for § 10-101 admissibility. I take it that the majority has concluded that Moon’s counsel did stipulate to a sufficient foundation for admitting the exhibit under the statute. Obviously, if the State failed to lay a proper foundation, this case should be resolved under Maryland evidence law and the Court should not address the constitutional issue.

¶5At the constitutional level, the Supreme Court “has not sought to ‘map out a theory of the Confrontation Clause that would determine the validity of all ... hearsay “exceptions.” ’ ” Ohio v. Roberts, 448 U.S. 56, 64-65, 100 S.Ct. 2531, 2538, 65 L.Ed.2d 597 (1980) (quoting California v. Green, 399 U.S. 149, 162, 90 S.Ct. 1930, 1937, 26 L.Ed.2d 489 (1970)). Robertsis the most recent opinion of the Court on the Confrontation Clause. In footnote 9 to Roberts, id. at 66-68, 100 S.Ct. at 2539-2540, the Court reviewed the outpouring of scholarly commentary triggered by “[t]he complexity of reconciling the Confrontation Clause and the hearsay rules” but refused to adopt any one theory as controlling.

¶6Robertsdoes, however, advise that “a general approach to the problem is discernible.” Id. at 65, 100 S.Ct. at 2538.

The Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay. First, in conformance with the Framers’ preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case ... the prosecution must *375either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant, [/d]

¶7That statement is immediately qualified by footnote 7 in Robertswhich in part reads (id.):

7 A demonstration of unavailability, however, is not always required. In Dutton v. Evans, 400 U.S. 74 [91 S.Ct. 210, 27 L.Ed.2d 213] (1970), for example, the Court found the utility of trial confrontation so remote that it did not require the prosecution to produce a seemingly available witness.[1]

¶8The Supreme Court in Robertsthen described the second aspect of confrontation which

operates once a witness is shown to be unavailable. Reflecting its underlying purpose to augment accuracy in the fact-finding process by ensuring the defendant an effective means to test adverse evidence, the Clause countenances only hearsay marked with such trustworthiness that “there is no material departure from the reason of the general rule.” Snyder v. Massachusetts, 291 U.S., at 107, 54 S.Ct. at 333. [Id.]

¶9Robertsapproved the State’s placing in evidence during its rebuttal case the transcript of testimony which an unavailable witness had given at a preliminary hearing. The case before us deals with a business record. Nevertheless, dicta in Robertsanswers the Sixth Amendment question presented here.

The Court has applied this “indicia of reliability” requirement principally by concluding that certain hearsay exceptions rest upon such solid foundations that admission of virtually any evidence within them comports with the “substance of the constitutional protection.” Mattox v. United States, 156 U.S., at 244 [15 S.Ct. at 340].8 This reflects the truism that “hearsay rules and the Confronta*376tion Clause are generally designed to protect similar values,” California v. Green, 399 U.S., at 155 [90 S.Ct. at 1933], and “stem from the same roots,” Dutton v. Evans, 400 U.S. 74, 86 [91 S.Ct. 210, 218, 27 L.Ed.2d 213] (1970). It also responds to the need for certainty in the workaday world of conducting criminal trials. [Id. at 66, 100 S.Ct. at 2539.]

¶10Footnote 8 (omitted from the majority’s discussion of Roberts) tells us:

8 See, e.g., Pointer v. Texas, 380 U.S., at 407 [85 S.Ct., at 1069] (dying declarations); Mattox v. United States, 156 U.S., at 243-244 [15 S.Ct., at 339-340] (same); Mancusi v. Stubbs, 408 U.S. 204, 213-216 [92 S.Ct. 2308, 2313-2314, 33 L.Ed.2d 293] (1972) (cross-examined prior-trial testimony); Comment, 30 La.L.Rev. 651, 668 (1970) (“Properly administered the business and public records exceptions would seem to be among the safest of the hearsay exceptions”). [Emphasis added.]

¶11And see Dutton v. Evans, 400 U.S. 74, 95-96, 91 S.Ct. 210, 222-223, 27 L.Ed.2d 213 (1970) (Harlan, J., concurring).

¶12Here the fact which the State seeks to prove by the introduction of the laboratory report is that the ethyl alcohol concentration of Moon’s blood sample was 165 milligrams per deciliter. In the language of the hearsay rule the “declarant” is the laboratory technician who performed the test which yielded that measurement. From the standpoint of the first aspect of the Confrontation Clause-hearsay exceptions relationship as discussed in Roberts, the declarant is in effect unavailable because it would be pointless for the State to call him as an accuser. Experience teaches us that the technician, even if called to the stand, would have to rely on the hospital’s record of the test result in order to testify accurately, or at all. From the trustworthiness standpoint, Robertstells us that the business records exception to the hearsay rule is like a dying declaration, or like cross-examined prior-trial testimony, so that virtually any evidence within the business record exception *377comports with the substance of the Confrontation Clause protection.

¶13Likely because these conclusions are so well-established in practice, the United States Supreme Court appears never substantially to have addressed a Confrontation Clause objection to business records evidence. The point was, however, a minor issue in Heike v. United States, 227 U.S. 131, 33 S.Ct. 226, 57 L.Ed. 450 (1913). That was a prosecution for customs fraud accomplished by the secret insertion of springs into some of the scales used by tax collectors so that imported sugar was underweighed. The Government sought to prove that the actual weights were higher than those recorded by customs agents. To do this the Government offered business records, called “pink books,” of other weighings of the same cargoes made by persons called the “city weighers” whose measurements were used by the defendant company to compute how much it was to pay for the sugar. Persons who made the entries in the pink books identified them. Cross-examination revealed that often those persons did not see the reading on the scale but simply wrote down what a city weigher told them. Hearsay! The declarants are the city weighers. In answer to a Confrontation Clause argument the Second Circuit had said simply that “the witnesses whose testimony made the records admissible testified before the jury, and were cross-examined, or opportunity given for cross-examination .... ” Heike v. United States, 192 F. 83, 97 (2d Cir.1911). On certiorari the Supreme Court, through Justice Holmes, recognized that the city weighers had not been called as witnesses but found no error for the reason, among others, that the pink books had been accepted by the defendant company. 227 U.S. at 145, 33 S.Ct. at 229. In the present case the Sixth Amendment imposes no greater requirement on the State to call the University Hospital laboratory technician than it imposed on the federal government to call the city weighers in Heike.

¶14Moon has not referred to, the majority has not cited, and my research has not disclosed any decision holding that the *378admission of a hospital record containing an independent observer’s report of scientifically objective findings made in the course of treatment violates the Confrontation Clause when the record is admitted through a custodian who is not the declarant. In the following cases courts held that the introduction of hospital records as business records did not offend the Sixth Amendment: United States ex rel. Henson v. Redman, 419 F.Supp. 678 (D.Del.1976) (emergency room record noting lacerated vagina and bleeding hymen of rape victim); United States ex rel. Lurry v. Johnson, 378 F.Supp. 818 (E.D.Pa.1974), aff'd, 510 F.2d 971 (3d Cir.1975) (same; also presence of spermatozoa); Pickett v. State, No. 3, Div. 504 (Ala.Crim.App. November 23, 1982), reh’g denied, December 28, 1982 (description of vaginal trauma of rape victim); Henson v. State, 332 A.2d 773 (Del.Super.1975) (emergency room record describing injuries of rape victim); State v. Torres, 60 Hawaii 271, 589 P.2d 83 (1978) (X-rays of accused showing lodged near the spine an object later identified by expert witness as a .22 caliber bullet); State v. Simpson, 625 S.W.2d 957 (Mo.App.1981) (description of rape victim’s hysteria and bruises); State v. Spikes, 67 Ohio St.2d 405, 423 N.E.2d 1122 (1981), appeal dismissed sub nom. Spikes v. Ohio, 454 U.S. 1131, 102 S.Ct. 986, 71 L.Ed.2d 284 (1982) (description of victim’s injuries in aggravated robbery case); Hagenkord v. State, 100 Wis.2d 452, 302 N.W.2d 421 (1981) (finding of sperm in vagina of rape victim and vaginal injuries); State v. Olson, 75 Wis.2d 575, 250 N.W.2d 12 (1977) (description of injuries of victim where charge was “endangering safety by conduct regardless of life....’’).

¶15There is another class of criminal case in which accused persons have argued that the introduction of business or public records violated the Confrontation Clause. Those cases arise when the record placed in evidence is the report by a scientist employed by the state to determine whether the matter tested is evidence of crime. Frequently the report is introduced through a custodian, or through a supervisor, or pursuant to a statute authorizing authentica*379tion by a certificate. The majority rule in those cases is that there is no Confrontation Clause violation. See Imwinkelried, The Constitutionality of Introducing Evaluative Laboratory Reports Against Criminal Defendants, 30 Hastings L.J. 621 (1979). The majority taking this no-violation position appears to be substantial. See, e.g., Kay v. United States, 255 F.2d 476 (4th Cir.), cert. denied, 358 U.S. 825, 79 S.Ct. 42, 3 L.Ed.2d 65 (1958) (blood alcohol report admitted under certificate in drunk driving case); Montgomery v. Fogg, 479 F.Supp. 363 (S.D.N.Y.1979) (autopsy report in murder case); State v. Huggins, 659 P.2d 613 (Alaska App.1982) (admission under certificate of foundation evidence, such as calibration, for admission of breathalyzer examination results); State v. Cosgrove, 181 Conn. 562, 436 A.2d 33 (1980) (state toxicologist’s report that substance is marijuana); Howard v. United States, 473 A.2d 835 (D.C.1984) (Drug Enforcement Agency chemist’s certified report that substance is heroin); State v. Rhone, 555 S.W.2d 839 (Mo. 1977) (admission through custodian of police laboratory microscopic and spectrographic comparison of fibers in accused’s clothing to materials on roof of burglarized building); State v. Malsbury, 186 N.J.Super. 91, 451 A.2d 421 (1982) (report from county forensic science laboratory that substance is marijuana); People v. Porter, 46 A.D.2d 307, 362 N.Y.S.2d 249 (1974) (blood alcohol test in drunk driving case conducted by private laboratory hired by police; lab notes of chemist, who was deceased at time of trial, identified by coworker); Burleson v. State, 585 S.W.2d 711 (Tex.Crim.App.1979) (autopsy admitted in murder case through secretary who transcribed notes of the medical examiner; latter attending professional meeting in California at time of trial); Robertson v. Commonwealth, 211 Va. 62, 175 S.E.2d 260 (1970) (attested report by medical examiner that vaginal swabs from victims in rape case contain seminal fluid); State v. Kreck, 86 Wash.2d 112, 542 P.2d 782 (1975) (en banc) (report by state chemist in murder case that victim’s blood contains chloroform; chemist in Germany).

¶16*380If the reports in the foregoing cases are sufficiently trustworthy as not to offend the Confrontation Clause, then the laboratory report of the results of an objective test conducted on Moon’s blood by an independent technician acting at the request of attending physicians at University Hospital cannot violate the Confrontation Clause.

¶17The minority view in this second class of case is illustrated by Reardon v. Manson, 491 F.Supp. 982 (D.Conn.1980), cause remanded, 644 F.2d 122 (2d Cir.1981) and by State v. Henderson, 554 S.W.2d 117 (Tenn.1977). Reardoninvolved two federal habeas corpus cases. The Second Circuit reversed and remanded both cases for reconsideration under 28 U.S.C. § 2254(d) and Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981) in light of the contrary factual findings which had been made in the same cases by the Supreme Court of Connecticut. See Reardon v. Manson, 644 F.2d 122 (2d Cir.1981).

¶18Henderson, supra,excluded a state toxicologist’s report identifying substances to be LSD and marijuana. The Supreme Court of Tennessee distinguished the case before it from a case like that before this Court when it said:

“Yet it must also be noted that the records in this case, while they may satisfy the technical requirements of [the Tennessee business records as evidence statute], do not fit the classic business records mold, i.e. ‘shop books’ or hospital records. Entries in such records are considered reliable because they are made in the course of business and are routinely relied upon by others in carrying on the affairs of the business. In the case of hospital records, medical personnel make life and death decisions as a result of reports and record entries. Such documents are true ‘business records,’ and their trustworthiness stems from the fact that they are ‘prepared for other use and only incidentally found pertinent to litigation.’ ” [554 S.W.2d at 120 (quoting lower court’s opinion).]

¶19Under confrontation principles applied by the United States Supreme Court, and by state and federal courts, *381Moon’s hospital record was admissible. Nevertheless the majority says that the admission of this particular record as a business record violated Moon’s right of confrontation because the record on its face raised possible questions as to its trustworthiness.

¶20Before addressing the majority’s analysis some additional background facts should be stated. After the State Police helicopter had flown Moon from the death scene to University Hospital, he was admitted into the shock trauma unit at 2:06 a.m. His injuries included internal abdominal bleeding, a broken left arm, through and through lacerations of the cheek and a head injury. The admitting note describes Moon as “combative, agitated, moving all extremities, verbalizing in incoherent manner,” By 2:15 a.m. six “blood gas” tests had been performed. By 2:30 a.m. 14 additional tests had been performed on Moon, including the osmolaliaty test which was indicative of high blood alcohol. By 2:49 a.m. orders had been directed to various laboratories by means of preprinted forms designed to permit the attending physician merely to check the type of test or screening desired. For the patient then identified as “Male Doe 8515,” i.e., Moon, the doctors directed such orders to the “microbiology” lab, the “chemistry-24 hour lab,” the “hematology II-stat 24 hour lab,” the “chemistry automated” lab, the “chemistry-immunoassay” lab and the “toxicology” lab. This latter order resulted in the report on which the issue in this case principally focuses. The report came into evidence as part of State’s Ex. 4, the complete University Hospital record on Moon. This one-page report, which includes the blood alcohol result, was also separately marked as State’s Ex. 4A.

¶21The parties stipulated that State’s Ex. 4 is the original hospital record. There is no question about the authenticity of Exs. 4 or 4A. What the majority really holds is that Ex. 4A is not trustworthy. One reason given is that the “hospital records were silent as to the kind of blood alcohol test performed.” Doctor Yale H. Caplan, the chief toxicologist for the State of Maryland in the Medical Examiner’s Office, *382testified that, while a blood test for alcohol can be done in several ways, “it is basically an objective chemical analysis of blood for a specific substance.” From the trustworthiness standpoint it makes no difference which of several “objective” methods was used. The majority says that Moon’s counsel “had a sound basis for inquiring ... if the technician was qualified to conduct the test.” It was stipulated that the hospital record was made in the ordinary course of business. In the face of this stipulation the majority says that, unless the technician testifies as to his qualifications and is subject to cross-examination, admitting a University Hospital lab report into evidence as a business record violates constitutional safeguards. This is really holding, out of thin air, that laboratory tests are presumed to be conducted by unqualified technicians in ordinary course at University Hospital, so that the State must explicitly prove the contrary.

¶22The majority emphasizes that Ex. 4A is dated February 21, 1979, while space on that report headed, “Time,” is completed “2-18-79 249 AM.” At a pretrial hearing on Moon’s motion to suppress the toxicology report, defense counsel informed the court that, based upon counsel’s interview with the attending physician, 2 49 AM refers to the time when the attending staff took the specimens to be tested. The order to the toxicology lab reflects that the physician initially checked a preprinted block to request a “drug abuse screen,” then marked that order “void” and by long-hand Requested a “General Drug Screen.” State’s Ex. 4A, reporting on the “general screen,” is a form reflecting that tests were conducted for three types of alcohol and for 15 other substances. The alcohol tests and two others utilized blood while the remaining tests were performed on a urine specimen. All tests other than that for ethyl alcohol were negative. I fail to see how Ex. 4A on its face demonstrates that its admission into evidence is an unconstitutional application of the Maryland business records statute. Because the parties stipulated that Ex. 4, which includes 4A, was prepared in the ordinary course of busi*383ness, for purposes of this appeal the conclusion should be that a general drug screen to test blood and urine for 18 substances can take three days from request to written report. The conclusion should not be that the report is untrustworthy.

¶23Nevertheless, the majority creates a constitutional right out of the possibility that “counsel may have addressed on cross-examination” whether “chemical agents were added to the blood to maintain its stability, if the blood was deposited in a container to avoid evaporation, and if the blood was properly refrigerated to prevent putrefaction.” In other words, the risk of University Hospital personnel in the ordinary course of business altering, adulterating or contaminating a specimen preserved for laboratory analysis is considered by the majority to be so great, and the report of the laboratory analysis therefore so untrustworthy, that the ordinary application of the business records statute must be constitutionally restricted. In this respect the majority’s rhetoric ignores the appellate record. At the hearing on the suppression motion defense counsel, with the acquiesence of the State, advised the court what the testimony of the attending physician would be were he called to testify.

In conversations with Doctor Millitello, he indicated that the bottom line where it has the time, is when the blood was drawn. But this particular test, this analysis of the blood alcohol, was not done until February the 21st, 1979, and that’s ... the reason for that other date that appears on there—apparently, they take a number of samples during the course of the treatment and they’re put in the freezer-refrigerator or some such thing. And then when it comes time to do the analyses, they just analyze all of the samples at one time, whether that be for economy or whatever. Doctor Millitello himself wasn’t sure as to why it’s done that way, but apparently that’s the way it is done.... I think that those are the facts. [The State’s Attorney] may have some others to add when it comes to his turn.

¶24*384This representation by defendant’s counsel furnished part of the basis for the circuit court’s ruling that the toxicology report was admissible. Moon does not attempt to retreat from those representations in his brief to this Court, and indeed would not be permitted to do so. Yet the majority reverses Moon’s conviction by speculating that the facts might be contrary to Moon’s own representations to the trial court.

¶25■ Curiously, another factor which is said to comprise the constitutional violation is that cross-examination might have “elicited from the technician that the test was conducted on the 21st in response to a. police request ____” State v. Moon, 291 Md. 463, 436 A.2d 420 (1981) (Moon I) arose on the identical appellate record now before us. There we said that the “order from Moon’s attending physician for a general drug screening test” and the form of report “effectively refute any suggestion that somehow there was a conspiracy between the State Police and University Hospital ... to obtain the ... blood alcohol content in circumvention of the statute.” Id. at 466, 436 A.2d at 421.

¶26Next we are told that “[i]t would be logical for counsel to inquire how blood drawn on the 18th and tested on the 21st had any diagnostic value for treatment already received.” In this respect the majority presupposes that treatment ceased by February 21 although Moon remained hospitalized until March 6. In my view, the fact that an attending physician, as part of the immediate and total response in the shock trauma unit, ordered a general drug screen makes the report of the test results sufficiently pathologically germane to be beyond constitutional objections.2 In any event Moon could not conceivably have a right of confrontation to cross-examine the hearsay declarant concerning the medical reasons for ordering the general drug screen. The *385hearsay declarant is the laboratory technician, a Dennis Seabolt, who made a blood alcohol finding and recorded the result. Why the tests were ordered by Doctor Millitello was a medical decision. Ordinarily a laboratory technician is not qualified to give expert testimony concerning the reasons underlying a medical decision.

¶27As I see it, the fundamental error in the majority’s rationale is the elevation of speculation above evidentiary fact and common experience. The majority uses the subjunctive mood to present its discussion of the untrustworthiness of Moon’s University Hospital record. What Moon’s counsel “might” have asked is the sole concern. Under this analysis it is immaterial that the centuries of experience dating from adoption of the shop book rule make it most unlikely that the questions conjured by the majority would produce any answers evidencing a lack of trustworthiness in the hospital record. Thus, the standard for passing constitutional muster moves from the generally accepted reliability of the record to whether defense counsel “might” want to ask some questions. Only such a Kafkaesque standard could convert the admission of reports on which life or death decisions are regularly based into a constitutional violation.

¶28When Moon’s new trial is held, and Dennis Seabolt testifies on cross-examination that all he knows is that his report accurately recorded his observations, what will the majority have accomplished?

¶29Judges SMITH and MENCHINE have authorized me to state that they join in the views expressed in this dissenting opinion.