Commonwealth v. Mclaughlin

79 Mass.App.Ct. 670

948 N.E.2d 1258

COMMONWEALTH

v.Richard McLAUGHLIN.

No. 09–P–1321.

Appeals Court of Massachusetts, Plymouth.

Argued Oct. 1, 2010.Decided June 13, 2011.

William T. Harrington, Boston, for the defendant.Carolyn A. Burbine, Assistant District Attorney, for the Commonwealth.Present: TRAINOR, MEADE, & SIKORA, JJ.SIKORA, J.

At the conclusion of a two-day trial, a District Court jury convicted the defendant, Richard McLaughlin, of operating under the influence of intoxicating liquor (OUI), G.L. c. 90, § 24(1)( a )(1), and of negligent operation to endanger, G.L. c. 90, § 24. By an immediately subsequent jury-waived trial, the presiding judge found the OUI offense to be the defendant's third. G.L. c. 90, § 24(1)( a )(1), fifth par.

On appeal, the defendant invokes the evolving Sixth Amendment confrontation doctrine generated by Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and Melendez–Diaz v. Massachusetts, –––U.S. ––––, 129 S.Ct. 2527, 2531, 174 L.Ed.2d 314 (2009), against the application of one of the Commonwealth's most frequently used evidentiary statutes, G.L. c. 233, § 79. For both criminal and civil trials, that provision authorizes the discretionary admission of properly certified hospital records related to relevant issues of treatment and medical history. In addition, the defendant challenges the admission of the content of certain 911 telephone calls also as violative of his constitutional right of confrontation. Finally, he complains of ineffective assistance of trial counsel and of prejudicial violation of hearsay evidence standards. For the following reasons, we affirm the convictions.

Background. The Commonwealth built its case upon the testimony of civilian witness Sherry Goss, of State Troopers Daniel Crespi and Matthew Waples, and of toxicologist Kerri Donovan. The defendant did not present any witnesses.

1. Testimony of Sherry Goss. Goss finished her evening work shift in Boston at approximately 1:00 a.m. on October 25, 2005, and began her drive home to Brockton. As she moved southward on Route 93, she observed an automobile randomly alternating its speed and changing lanes. The car appeared to be a silver Mercedes–Benz.

The car struck a concrete barrier in the middle of the highway, and ricocheted to the right across all of the traffic lanes. As it continued southward onto Route 3, Goss called 911 by cellular telephone and reported the accident. The car continued to change speeds and shift lanes, and eventually slowed to a speed of approximately twenty miles per hour.

As Goss passed it, she read the car's license plate number. The driver appeared to be a male. She again called 911 and reported the license plate number to the dispatcher. She was unsure of the last digit of the number and gave the dispatcher two possibilities. Shortly afterward she left the highway.

2. Testimony of Troopers Crespi and Waples. Crespi received a dispatch at about 2:45 a.m. on October 25, 2005. As a result, he drove to Route 3 South. He was looking for a Mercedes–Benz sedan with a specific license plate number traveling in the southbound lanes. As Crespi reached an overpass above Route 3, he saw a sedan driving north in the southbound lanes of Route 3. He turned on his lights and siren and drove onto Route 3 North. Trees and bushes growing in the median blocked his view of the southbound lanes. He turned left into a cutout in the median and emerged onto Route 3 South. Before proceeding southward, he looked down the lanes and did not see a car traveling in the wrong direction. He proceeded several hundred feet southward and saw a Ryder truck stopped in the median.

Crespi pulled to the side of the highway, approached the truck on foot, and spoke with the driver. As he did so, he noticed another vehicle on the opposite side of the highway. It was straddling the breakdown lane and an adjacent embankment. As he crossed the highway toward the car, he radioed dispatch to report an accident.

The driver of the car, whom Crespi identified in court as the defendant, was unconscious. Crespi checked the defendant's vital signs; he had a pulse and was still breathing. His breath carried a strong odor of alcohol. The defendant's automobile was a gray Mercedes–Benz that had sustained serious damage to its passenger side. The make, color, and license plate number matched the description of the vehicle for which Crespi was looking when he drove onto Route 3.

Trooper Waples arrived shortly afterward. He had responded to the scene after receipt of a radio transmission from Crespi reporting the accident. Previously, Waples had received the same dispatch information as Crespi and had been searching Route 3 South for a silver or gray Mercedes–Benz with a specific license plate number. Upon arrival, Waples spoke with Crespi, approached the defendant's vehicle, and observed its make, color, and license plate number, all of which matched the description of the vehicle relayed to him by dispatch earlier. Waples also checked the defendant's vital signs and smelled a strong odor of alcohol on the defendant's breath. Waples identified the defendant in court.

Emergency medical personnel then arrived and, with the “jaws of life,” removed the defendant from his vehicle. They transported him to South Shore Hospital. Waples investigated the accident scene and then drove to the hospital to inquire whether medical personnel had tested the defendant's blood. He spoke with both doctors and nurses who were treating the defendant. He then returned to his barracks and drafted charges against the defendant for OUI and for negligent operation.

3. Testimony of toxicologist Kerri Donovan. At the conclusion of the testimony by the troopers, pursuant to G.L. c. 233, § 79, the Commonwealth introduced in evidence a copy of the defendant's hospital records and a signed form from a South Shore Hospital record keeper certifying “that the attached medical record is a true and accurate copy of the original documents.” The records contained a toxicology report. The Commonwealth then called toxicologist Donovan to explain the significance of the report. She described the process by which blood analysts use a person's serum alcohol level to calculate blood alcohol content. From the defendant's hospital toxicology report, she described his ethanol serum level as 303 milligrams per deciliter. From that datum, she calculated that the defendant's blood alcohol content by weight on the night of the accident to have been between .256 and .270 percent, a level more than three times the legal limit. See G.L. c. 90, § 24(1)( a ) (1), first par.

Analysis. 1. Admission of the defendant's hospital records. Trial defense counsel did not object to the admission of the hospital records. We therefore review the unpreserved alleged error for a substantial risk of a miscarriage of justice. See e.g., Commonwealth v. Freeman, 352 Mass. 556, 563–564, 227 N.E.2d 3 (1967); Commonwealth v. Randolph, 438 Mass. 290, 297–298, 780 N.E.2d 58 (2002). See also Commonwealth v. Redmond, 53 Mass.App.Ct. 1, 7–8, 757 N.E.2d 249 (2001) (unpreserved constitutional error typically reviewed under substantial risk of a miscarriage of justice standard).¹

The defendant assigns three errors to the uncontested admission of his hospital records under authority of G.L. c. 233, § 79. First, he contends that their admission violated the very terms of the statute because their measurement of his blood alcohol content effectively referred to the ultimate question of his criminal liability. Second, he argues that the unavailability of the hospital record keeper at trial for cross-examination upon the accuracy of the certification of the records deprived him of his right of confrontation under the Sixth Amendment to the United States Constitution. Finally, he characterizes trial defense counsel's failure to object to the admission of the medical records as constitutionally ineffective assistance of counsel.

The Commonwealth presented the OUI charge to the jury upon the independent alternative theories of (1) a per se violation by reason of a blood alcohol measurement of .08 percent or greater, and (2) impaired operation established by percipient testimony of witnesses. The jury delivered verdicts of guilt upon both versions of the offense. The defendant argues that the improperly admitted hospital toxicology report taints a finding of guilt under the per se theory and prejudicially affects any such finding under the alternative concept of impaired operation. See G.L. c. 90, § 24(1)( a ) (1), first par.; Commonwealth v. Colturi, 448 Mass. 809, 817–818, 864 N.E.2d 498 (2007); Commonwealth v. Douglas, 75 Mass.App.Ct. 643, 651–653, 915 N.E.2d 1111 (2009); Commonwealth v. Filoma, 79 Mass.App.Ct. 16, 20–21, 943 N.E.2d 477 (2011).

a. Statutory “question of liability.” In pertinent part, G.L. c. 233, § 79, as appearing in St.1959, c. 200, provides as follows:

“Records kept by hospitals ... may be admitted by the court, in its discretion, as evidence ... 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 ” ² (emphasis supplied).

General Laws c. 90, § 24(1)( a )(1), as amended through St.2003, c. 28, §§ 1 and 4, provides in relevant part that “[w]hoever [upon any public way] operates a motor vehicle with a percentage, by weight, of alcohol in their blood of eight one-hundredths or greater ... shall be punished....” The defendant proposes that proof of OUI guilt by a credible reading of .08 percent or greater effectively converts a hospital record containing such information to a reference to ultimate criminal liability forbidden by § 79.

We disagree. Objectively determinable facts resulting from medical tests and procedures conducted for diagnostic and treatment purposes and appearing in hospital records...