State v. Smith

Page 692

902 A.2d 692

97 Conn.App. 1

STATE of Connecticut v. Frank Henry SMITH.

No. 25580.

Appellate Court of Connecticut.

Argued January 5, 2006.

Decided August 8, 2006.

COPYRIGHT MATERIAL OMITTED

Michael Stone, special public defender, for the appellant (defendant).

Margaret Gaffney Radionovas, senior assistant state's attorney, with whom, on the brief, were Patricia M. Froehlich, state's attorney, and Mark A. Stabile, supervisory assistant state's attorney, for the appellee (state).

FLYNN, HARPER and McDONALD, Js.^*

McDONALD, J.

The defendant, Frank Henry Smith, appeals from the judgment of conviction, rendered after a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a and manslaughter in the second degree with a motor vehicle in violation of General Statutes § 53a-56b. On appeal, the defendant claims that (1) the trial court improperly allowed the state to redact information from Hartford Hospital and the Life Star helicopter ambulance reports and (2) the prosecution engaged in misconduct that deprived the defendant of a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On October 9, 1997, the defendant and his girlfriend, Lois Nyberg, were involved in an accident on Route 198 in Eastford while riding on the defendant's motorcycle. Prior to the accident, the defendant and Nyberg had been drinking alcohol during the afternoon, first at their home and later at two bars. They left the second bar on the defendant's motorcycle, which he was operating. As they approached a curve in the road, the defendant failed to negotiate the curve and the motorcycle struck a guardrail. Both the defendant and Nyberg were thrown from the motorcycle. Nyberg struck the metal guardrail and suffered fatal head injuries. She was found dead at the scene. The defendant was thrown at a distance farther along the road and suffered severe bodily injuries in the form of a severe laceration to the left hand, severe lacerations of the right thigh and right hand, and fractures of the right femur, pelvis and several toes.

When the police arrived on the scene, the defendant was coherent and Trooper Kirk Hulburt of the state police understood from the defendant's answers to Hulburt's questions that the defendant had been the operator of the motorcycle. The defendant at the time interacted responsively with the police and emergency medical personnel. The defendant then was transported to Hartford Hospital by Life Star Helicopter and remained there for about one month.

The issue of who was operating the motorcycle at the time of the accident was disputed at trial. The defendant testified that he had been the operator and Nyberg the passenger when they left the second bar, but shortly thereafter he had driven off the roadway and switched places to allow Nyberg to drive. The defendant maintained that the accident occurred because Nyberg failed to negotiate the curve in the road. The state, to the contrary, presented evidence that the defendant had been operating the motorcycle at the time of the accident. The state produced the testimony of Trooper Michael T. Matthew, who performed an accident reconstruction analysis and testified that the injuries to the defendant were consistent with those of an operator of the motorcycle. The state also produced evidence that shortly before the accident, a man with a female passenger had been seen nearby driving the motorcycle.

The defendant was charged with operating a motor vehicle while under the influence of intoxicating liquor and manslaughter in the second degree with a motor vehicle. After a trial, the jury found the defendant guilty of both charges. On May 12, 2000, the court granted the defendant's motion to merge the convictions and sentenced the defendant to ten years incarceration. This appeal followed.¹

I

The defendant claims that the court improperly allowed the state to redact information from the Life Star helicopter ambulance reports and Hartford Hospital reports identifying him as the passenger and Nyberg as the operator of the motorcycle. The defendant claims that references to him as a passenger were either relevant to his medical treatment or admissible to rebut the state's claim that he recently contrived his version of the circumstances as to where Nyberg became the operator of the motorcycle. We do not agree.

The standard governing our review of the court's evidentiary rulings is as follows. "It is axiomatic that [t]he trial court's ruling on the admissibility of evidence is entitled to great deference. . . . In this regard, the trial court is vested with wide discretion in determining the admissibility of evidence. . . . Accordingly, [t]he trial court's ruling on evidentiary matters will be over-turned only upon a showing of a clear abuse of the court's discretion. . . . Furthermore, [i]n determining whether there has been an abuse of discretion, every reasonable presumption should be made in favor of the correctness of the trial court's ruling, and we will upset that ruling only for a manifest abuse of discretion." (Citation omitted; internal quotation marks omitted.) State v. Skakel, 276 Conn. 633, 723, 888 A.2d 985 (2006).

The following additional facts are pertinent to the defendant's claims. Following the accident, the defendant was transported from the accident scene to Hartford Hospital by Life Star helicopter. At trial, the reports relating to the care and treatment of the defendant on the Life Star helicopter and at Hartford Hospital were offered by the defendant and the state, respectively, and admitted into evidence as business records under § 8-4 of the Connecticut Code of Evidence.² The state, at the time, asked that those portions of the medical records that included references to the defendant being the passenger and Nyberg as the operator be redacted because they were unrelated to the defendant's medical treatment. The defendant made a timely objection. The court granted the state's request to redact the applicable portions of the medical records as being inadmissible as hearsay within hearsay under § 8-7 of the Connecticut Code of Evidence.³

"General Statutes § 52-180(a) provides in relevant part: Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter. . . ."

"However, [o]nce these criteria have been met by the party seeking to introduce the record . . . it does not necessarily follow that the record itself is generally admissible, nor does it mean that everything in it is required to be admitted into evidence. . . . For example, the information contained in the record must be relevant to the issues being tried. . . . In addition, the information contained in the report must be based on the entrant's own observation or on information of others whose business duty it was to transmit it to the entrant. . . . If the information does not have such a basis, it adds another level of hearsay to the report which necessitates a separate exception to the hearsay rule in order to justify its admission." (Citation omitted; internal quotation marks omitted.) State v. Carpenter, 275 Conn. 785, 830-31, 882 A.2d 604 (2005), cert. denied, ___ U.S. ___, 126 S.Ct. 1578, 164 L.Ed.2d 309 (2006). "Hearsay within hearsay is admissible only if each part of the combined statements is independently admissible under a hearsay exception." (Internal quotation marks omitted.) State v. Pierre, 277 Conn. 42, 64, 890 A.2d 474 (2006); see also Conn.Code Evid. § 8-7; State v. Lewis, 245 Conn. 779, 802, 717 A.2d 1140 (1998) ("[w]hen a statement is offered that contains hearsay within hearsay, each level of hearsay must itself be supported by an exception to the hearsay rule in order for that level of hearsay to be admissible").

Furthermore, "in the context of hospital reports, we have concluded that only the portions of a hospital report associated with the business of a hospital, that is the information relevant to the medical treatment of a patient, are admissible pursuant to the business records exception. . . . We have reached a similar result with regard to a physician's report and have stated that [o]nce the report is ruled admissible under the statute, any information that is not relevant to medical treatment is subject to redaction by the trial court." (Internal quotation marks omitted.) Gil v. Gil, 94 Conn.App. 306, 320, 892 A.2d 318 (2006).

With these principles in mind, we turn to the case at hand. The defendant argues that the redacted portions of the medical reports were relevant to his medical treatment and should not have been redacted. The medical treatment exception applies to statements "made for purposes of obtaining medical treatment or advice pertaining thereto and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof, insofar as reasonably pertinent to the medical treatment or advice." (Internal quotation marks omitted.) State v. Aaron L., 272 Conn. 798, 814, 865 A.2d 1135 (2005).

We conclude that the court correctly determined that this exception cannot apply to the references to the defendant as the passenger because information regarding who was operating the motorcycle was not necessary to treatment. We have stated that "[b]ecause statements concerning the cause of injury or the identity of the person responsible are generally not germane to treatment, they are not allowed into...