Lead Opinion
On appeal from his conviction by a jury of assault with intent to rob, D.C.Code § 22-501 (1981), appellant Sherman Durant contends that the trial judge abused his discretion in admitting for impeachment medical records showing the use of phency-clidine (PCP) without expert medical testimony. At trial, Durant denied being under the influence of PCP on the day of the alleged offense and the only evidence contradicting this claim was a urine test that detected an unspecified quantity of PCP the day after the offense. Defense counsel made an unrebutted proffer that trace amounts of PCP can be detected in urine long after the effect of the drug has dissipated. We hold that the trial court erred in admitting a medical diagnosis of PCP intoxication as a business record within the exception to the hearsay rule. We further hold that, while other medical records were admissible within that hearsay exception, the trial judge abused his discretion in ruling that the government’s proffer of the medical records provided a sufficient evi-dentiary foundation to be used as extrinsic evidence for impeachment purposes since the records did not link the presence of PCP in Durant’s urine the day after the alleged offense to his behavior and his ability to recall events surrounding the offense. Because the admission of the record substantially prejudiced Durant, we reverse.
I
The charge against Durant arose out of an incident involving Earl Richards, a taxi cab driver. On February 14, 1984, Richards was driving his cab when he observed Durant walking in the middle of the street and waving his arm in the air. According to Richards, when he pulled his cab over to the curb to avoid hitting Durant, Durant opened the front passenger door and ordered Richards out of the cab, telling him that he was from the FBI and that he was carrying a bomb. As Durant slid across the front seat, Richards turned off the engine and attempted to take his keys from the ignition, but claimed Durant grabbed his hand and the keys fell to the floor. In an effort to protect his cab, Richards said he got out of the vehicle, opened the hood, and attempted to disconnect the ignition wires. Durant, according to Richards, then rushed out of the cab, slammed the hood down, and got back into the driver’s seat. As Durant started the engine, Richards said he jumped into the passenger seat and grabbed the gear shift and steering wheel to stop Durant from driving away. Durant resisted, Richards claimed, and as he and Richards struggled, the cab accelerated onto the curb and stopped.
As the two men were struggling, Officer Ronald Williams arrived. Richards told Williams that Durant claimed to have a bomb and was trying to steal his cab. Richards testified that Durant tried to walk away after Officer Williams arrived, but was impeached with his grand jury testimony that the police pulled Durant from the cab after hearing of his attempt to steal it. Officer Williams initially testified that Durant tried to run away, but admitted on cross-examination that Durant did not get out of the cab until Williams approached him. Richards also testified that Durant’s eyes looked “real poppy” and that he appeared “real jittery, like he was jumping ... like he was not himself.” Officer Williams said that he recalled nothing unusual about Durant’s eyes or posture while transporting him to the station.
Durant testified that on February 14, 1984, he was on his way to the Veteran’s Administration hospital to check in for treatment of a continuing illness. He was carrying the belongings that he might need for his hospital stay, including a black bag.
After Durant’s direct examination was completed, the prosecutor requested permission from the trial judge to cross-examine Durant about whether he was under the influence of PCP on February 14 and whether he had told a doctor on February 20 that he was unable to recall the facts surrounding the offense and his arrest. The prosecutor also sought permission, in the event of Durant’s denial, to complete the impeachment by introducing in rebuttal, through a medical records custodian, appellant’s redacted medical records to show (1) a doctor’s entry that Durant was suffering from PCP intoxication on February 15, the day after the offense, (2) a lab report indicating the detection of an unspecified amount of PCP in Durant’s urine on the day after the offense and the accompanying diagnosis of PCP intoxication, (3) a nursing entry about Durant’s bizarre behavior on the day after his arrest, and (4) an excerpt of a conversation with a doctor on February 20 in which Durant stated that he could not remember what he was doing at the time of the offense. The prosecutor proffered this evidence to explain Durant’s behavior during the offense and to challenge his ability to remember the incident.
Defense counsel objected to the admission of this evidence on several grounds. Although agreeing that cross-examination of Durant as to whether he was under the influence of PCP at the time of the offense was proper and relevant to his ability to perceive and remember, counsel argued that it would be improper for the government to link evidence of PCP use to Durant’s behavior on February 14. Defense counsel noted that the urinalysis test relied upon by the government was only a qualitative, not a quantitative test, that it was merely a preliminary screening requiring confirmation, which apparently was not done, and that a contemporaneous blood test had failed to detect any PCP in Durant’s body. Defense counsel proffered that researchers have determined that traces of PCP can be retained in the body for many days after ingestion, and argued, therefore, that in the absence of explanatory medical testimony based on Durant’s medical records, the probative value of the evidence of PCP use was clearly outweighed by its prejudicial impact. He also argued, citing New York Life Ins. Co. v. Taylor,
The trial judge ruled that the government would be allowed to cross-examine Durant on his use of PCP for the purpose of testing his ability to remember the events surrounding the charged offense. If Durant denied such usage, then the government would be permitted to use the medical records as extrinsic evidence to impeach him. The judge further ruled that the government would not be allowed to link Durant’s behavior on the date of the offense to PCP intoxication.
Durant then resumed the witness stand for cross-examination. After testifying that Richards’ cab was never on the sidewalk while he was on the scene, and denying that he had claimed to be an FBI agent
Q. Were you unconscious when Officer Williams, or a police officer, put you in the police car?
A. I was knocked unconscious from the outside of the car.
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Q. [0]n February the 20th, do you recall ever relating to a doctor at D.C. General Hospital, that you were unable to remember the events that happened that caused your arrest?
ajc * * * * *
A. No, sir, I did not tell no doctor that, under no circumstances.
He * * * * *
Q. Mr. Durant, were you under the influence of PCP on February Hth, 1984 at about five o’clock in the evening?
A. No, sir, I was not under the influence of no type of drug whatsoever.
Q. Mr. Durant, did you know that at the D.C. General Hospital, they performed tests on you that found PCP—
[objection overruled]
* * * * * *
A. I was aware that Doctor Mark Moseley informed me that they have— they did find PCP within my system.... I deny using it.
Q. [D]o you deny that you were under the influence of PCP on February the Uth, 1984?
A. I deny I was under — I definitely deny I was under the influence of PCP at any time.
Q. Do you recall that — at the hospital, that you were in such an agitated state from the ingestion of PCP that you had to be physically restrained in the hospital bed with three leather straps— [Emphasis added]
Defense counsel objected and moved for a mistrial on the ground that the prosecutor’s line of inquiry violated the judge’s ruling that the government would not be allowed to link the PCP evidence to Durant’s behavior and that the question exceeded the scope of direct examination. The trial judge overruled the objection, explaining that because Durant had given unanticipated testimony that he was knocked unconscious by police officers, the government was entitled to “show what his condition was on [February 14, 1984].”
On redirect examination, defense counsel attempted to rehabilitate Durant by eliciting that Durant had been instructed by counsel on February 17 or 18 not to discuss the facts of the case with anyone and that his conversation with a doctor on February 20 occurred after receiving that advice. Defense counsel also asked him whether the police or medical staff had handcuffed him while he was at the hospital, to which he responded that the police had placed him in handcuffs.
In rebuttal, the government called the Registrar Technician in the Medical Records Division of D.C. General Hospital, who read into evidence five discrete por
II
Durant contends that the trial judge abused his discretion in admitting for impeachment, after Durant denied on cross-examination that he was under the influence of PCP on the day he was arrested, four discrete portions of Durant’s medical records showing that Durant was under the influence of PCP for several days after the events precipitating his arrest.
A.
1. The diagnosis. Durant maintains that the trial judge erroneously admitted the discharge summary stating a medical opinion that Durant was diagnosed as suffering from PCP intoxication under the business records exception to the hearsay rule. Super.Ct.Civ.R. 43-I(a)
Any writing or record ... made as a memorandum or record of any act ... or event, shall be admissible as evidence of such act ... or event, if made in regular course of any business, and if it was the regular course of such business to make such memorandum or record at the time of such act ... or event_
Under New York Life Ins. Co. v. Taylor, supra,
The court in New York Life drew a distinction between diagnosis based purely on objective observations and diagnoses in
The diagnosis of a psychoneurotic state involves conjecture and opinion.... It is no reflection upon the profession of psychiatry to say that it necessarily deals in a field of conjecture.... It is difficult to conceive of records in which the right of cross-examination is more important than the conjectures of a psychiatrist on a psychoneurotic condition.
Id. at 73-74,
The government’s reliance on Sullivan v. United States,
[I]t is obvious that medical entries as to complainant’s condition — his appearance, physical signs such as pulse, respiration, etc., and the resulting diagnosis — constitute a record admissible under Rule 43-I(a). Such entries are routinely made in the “regular course” of admitting patients, and a hospital fits firmly within the rubric of “business, profession, occupation and calling of every kind,” by which Rule 43-I(a) defines a business.
Id. at 158 (emphasis added; footnote omitted). In Sullivan, the complainant was taken to a hospital to treat injuries sustained in a fight with the defendant. Although the Sullivan court did not indicate the complainant’s precise diagnosis, it is readily apparent that the complainant had received the type of physical injuries one might expect from a fistfight. Thus, the resulting diagnosis of physical injuries determined to be admissible under the business records exception in Sullivan was entirely consistent with the type of objective, nonconjectural diagnosis contemplated in New York Life. As the court in New York Life stated:
The test [for admissibility of hospital records] should be whether [they] are ... of a readily observable condition of the patient or his treatment. There is no magic in the word diagnosis which makes everything which can be included in that term admissible. Some diagnoses are a matter of observation, others are a matter of judgment, still others a matter of pure conjecture. The admissibility of records of such diagnoses must depend upon their character.
New York Life Ins. Co. v. Taylor, supra,
Nor are we persuaded by the government’s argument, which the trial judge adopted, that for the purpose of admissibility under the business records exception, a diagnosis of PCP intoxication is equivalent to a diagnosis of alcohol intoxication. In discussing the types of readily observable conditions which are admissible under the exception, the New York Life court stated that “an observation that the patient was well under the influence of alcohol [is admissible].” Id. at 72-73,
By contrast, the record in the instant case suggests that whether a patient should be diagnosed as suffering from PCP intoxication is not inevitably a matter about which competent physicians would agree in the absence of any quantitative analysis, particularly if the patient is diagnosed as contemporaneously suffering from a mental illness with the same symptomatology.
Accordingly, we hold that a diagnosis of PCP intoxication in conjunction with a diagnosis of histrionic personality disorder is a medical opinion which is not admissible under the business records exception, and that the trial judge erred in admitting the diagnosis without “the safeguard of cross-examination of the physician who makes it,” New York Life, supra,
2. Nursing Entry and Lab Reports. Durant also contends that a nursing entry describing his behavior on the morning of his admission and two lab reports stating that PCP had been detected in his urine are inadmissible under the business records exception to the hearsay rule. We disagree. The nursing entry is the type of medical record which is admissible under New York Life because it is “a product of routine procedure ... whose accuracy is substantially guaranteed by the fact that the record is an automatic reflection of observations.” Id.,
B.
The question remains whether the medical evidence, which is admissible under the business records exception to the hearsay rule, provided a sufficient evidentiary foundation to permit its admission as extrinsic evidence for impeachment purposes.
Durant contends that the trial judge abused his discretion in allowing the prosecutor to impeach Durant with extrinsic evidence of his use of PCP and his bizarre behavior the day after the offense. He acknowledges that the “use of narcotics is a proper subject of inquiry going to the credibility of the witness in his recollection of the events in question.” Jackson v. United States,
The general rule is that a party may not present extrinsic evidence to impeach a witness on collateral issues. Washington v. United States,
In our prior decisions holding that drug use is relevant to credibility, the factual circumstances have not required that the court address the distinction between veracity and ability to perceive and recall events. In Jackson, supra,
The trial judge permitted the prosecutor to impeach Durant’s testimony on the basis that the presence of an unspecified amount of PCP in his urine on February 15 and his bizarre behavior at the hospital provided a sufficient evidentiary foundation on which the jury could find not only that Durant was under the influence of PCP on February 14, but that his behavior and his ability to perceive and recall events on February 14 were adversely affected as a result, and he was therefore not a credible witness. We disagree, and hold that the trial judge
C.
The question remains whether Durant’s impeachment with his drug use was harmless error. Kotteakos v. United States,
The trial judge admitted the diagnosis of PCP intoxication to show Durant’s condition on the date of the charged offense because he had testified unexpectedly that
Furthermore, the prosecutor asked the jury in his rebuttal closing argument “Is it believable that a witness whose brains are blown out on PCP is going to remember what’s going on?” Defense counsel objected and the trial judge instructed the jury to disregard the words “brains blown out.” The prosecutor then proceeded to connect Durant’s drug use with his bizarre behavior at the hospital and his behavior on February 14 by arguing to the jury that Durant’s version of the facts was not credible, thus effectively undermining the cautionary instruction. In addition, when defense counsel argued in his closing argument that if the jury found Durant was suffering from PCP intoxication on February 14 and his abilities to perceive and recall were impaired, then he did not have the specific intent required for a conviction of assault with intent to rob, the trial judge sustained the prosecutor’s objection and erroneously instructed the jury that it could not consider Durant’s PCP intoxication as bearing on his specific intent to commit the assault. Carter v. United States,
This case involved a classic credibility contest between Richards and Durant. Richards’ testimony was impeached in several respects and Officer Williams’ testimony contradicted Richards’ assertions about Durant's “poppy” eyes and “jittery” posture. The prosecutor was permitted to impeach Durant’s testimony through the use of “highly inflammatory” drug evidence, Rogers, supra,
Accordingly, because Durant was substantially prejudiced by the admission of the medical evidence of PCP use and intoxication, the error was not harmless and the judgment must be reversed.
Notes
. The black bag did not contain a bomb but did contain three photo albums, several language books, a pair of gloves, an umbrella, a pencil and paper, a comb, a toothbrush and other personal items. In addition, Durant was carrying two pairs of pants, a jumpsuit, a sportcoat, an overcoat and an attache case.
. In requesting permission to cross-examine Durant about his use of PCP, the prosecutor said he wanted to avoid getting into a collateral discussion of Durant’s claim that police brutality had resulted in his being in a wheelchair, a subject that was not raised by the defense but was discussed in the medical records.
. Only the portions of the medical records which were read by the technician were admitted into evidence. Durant’s complete medical records are part of the record on appeal.
. Super.Ct.Civ.R. 43-I(a) is made applicable to criminal cases by Super.Ct.Crim.R. 57(a).
. This is distinct from whether expert testimony would be required regarding the effect of alcohol intoxication on the ability to perceive and recall. See, e.g., Doepel v. United States,
. The government contends that the medical records reflect no disagreement among the doctors treating Durant as to the propriety of the diagnosis of PCP intoxication. But even in the absence of disagreement, the relevant inquiry under New York Life is whether the particular medical condition is, by its very character, one about which competent physicians could reach different medical conclusions, the circuit court contrasting statements of identification and statements of medical opinion.
.Defense counsel did not oppose the admission of the "final lab report which indicates [a] positive [finding of PCP] in the urine.” Since there were two different lab reports, it is unclear whether defense counsel acceded to the admission of both reports or only the "final lab report”; it is clear, however, that defense counsel did not object to the admission of either lab report. Thus, the propriety of their admission must be reviewed under the plain error standard. Watts v. United States,
. Durant contends further that, even if the government had called an expert witness, a purely qualitative urine test would not provide a sufficient evidentiary basis for an expert opinion on Durant's perceptual state. Cf. United States v. Roy, 114 Daily Wash.L.Rptr. 2481, 2488-89 (D.C.Super.Ct. Dec. 1, 1986) (in the absence of expert testimony to a reasonable degree of medical certainty on time within which PCP remains in body at levels detectable in urine, government failed to meet its burden of proof beyond a reasonable doubt that defendant vio
. Although the urine test was a qualitative, not quantitative test, it can be inferred that Durant’s urine contained only trace amounts of PCP since the blood test failed to detect the presence of any PCP at all. The government offered no medical evidence to support a contrary inference.
. See Hinnant v. United States,
. Although Durant’s dual diagnosis of PCP intoxication and histrionic personality disorder based upon the same symptomatology might have provided an alternative basis for the need for expert testimony, the parties agreed to keep the issue of mental illness from the jury, so we do not reach this issue.
. Judge Weinstein reports that a minority of jurisdictions admit evidence of drug use without requiring proof that the witness’ testimonial capacities were impaired, usually on the theory that the user is a liar, which, Weinstein suggests, appears to address character rather than impairment. J. Weinstein & M. Berger, 3 Weinstein’s Evidence 1f 607[04], at 607-59 (1987). In his view, the sounder position, taken by many state courts, is that such evidence is not admitted "unless it can also be proved that the use of narcotics has impaired the sensory, retentive or communicative facilities of the witness." Id. (citation omitted). See, e.g., State v. Rifkin,
Whether [the conclusion that juries understand the effects of drug use on testimonial capacity] is warranted in the absence of expert evidence is questionable since studies suggest that the effect of narcotics on credibility cannot be assessed without knowledge of the type of drug involved, the type of reaction it causes, the amount of the drug the witness was using at the time he observed the event in issue, and the mental characteristics of the individual who is testifying, a task which seems to require information beyond that ordinarily attributable to the average juror.
Weinstein’s Evidence, supra, ¶ 607[04], at 607-61.
. We find no merit to Durant’s contention that the trial judge abused his discretion in allowing the prosecutor to impeach Durant with a prior inconsistent statement. The prosecutor’s question was clarified upon defense objection, Durant initially responded that he did not recall events during the time he was unconscious, and then denied telling a doctor on February 20 that he could not recall the events leading to his arrest. Martin v. United States,
Concurrence Opinion
concurring:
Much has happened since 1945, when New York Life Insurance Co. v. Taylor,
Rule 803(6) of the Federal Rules op Evidence is substantially broader in the admissibility of diagnoses and opinions that was the federal shopbook rule. “Rule 803(6) in accord with the trend of state decisions and the conclusion of leading authorities rejects any attempt to exclude a particular class of hospital records. Diagnoses and opinions, without regard to routine vis-a-vis conjectural, or physical as against psychiatric, are included as proper subjects of admissible entries in addition to acts, events and conditions.” Weinstein’s Evidence, II 803(6) [06], at 803-200 (1988) (footnotes omitted).
An analysis of what was at issue under the federal shopbook rule in New York Life Insurance Co. v. Taylor, supra, is instructive in understanding that decision. The insured decedent died while a patient at Walter Reed General Hospital by falling down a stairwell. There were no witnesses. The circumstances of the fall indicated the possibility of suicide. Taylor sued New York Life seeking to recover the double indemnity payable upon accidental death. New York Life sought to introduce records of the hospital relating to the cause of death of the insured, seeking to show that the decedent committed suicide. These records consisted of the (1) patient’s history given upon admission, including an account of his illness and his mental state; (2) diagnosis upon admission; (3) reports of three operations performed in the hospital; (4) recordation of insured’s statements indicating he was contemplating suicide; (5) report of psychiatrist’s consultation resulting from contemplated suicide; (6) psychiatric diagnosis; and (7) the transcript of Walter Reed Hospital’s Board of Officers’ proceedings, including findings with respect to cause of death. The trial court sustained Taylor’s objection to the admission of these records; New York Life appealed an adverse jury verdict.
The United States Court of Appeals for the District of Columbia Circuit affirmed. New York Life, supra,
Subsequent to New York Life, the Second,
We have cited New York Life v. Taylor, supra, in construing Super.Ct.Civ.R. 43-1; see, e.g., Rotan v. Egan,
Our reliance on New York Life has caused us to state the admissibility test to be whether the diagnosis or opinion is one “upon which competent physicians would not disagree.” Rotan v. Egan, supra,
The approach taken by Fed.R.Evid. 803(6) is far preferable. This rule focuses on trustworthiness which is what the law of evidence should focus on. In my view, it has greater predictability, while retaining the trial court’s right, subject to appellate review, to exclude that which is untrustworthy.
Whatever may be the validity of New York Life where psychiatric opinion is offered by an insurance company to prove that its insured died by suicide rather than by accident (i.e. on the issue of factual causation), its application more generally is, in my view, suspect. Indeed, I find Judge Edgerton’s dissent to be insightful and persuasive. It’s long past time for us to reexamine this area of the law. We should adopt the approach of Fed.R.Evid. 806(6) as have a multitude of states. See for a compilation of state adaptions, Wein-stein’s Evidence, supra, If 803(6) [8] at 803-213-25.
This is not a proper case in which to embark on this task, for I share the view expressed in Chief Judge Rogers’ opinion that, on the facts of this case, given the evidence of mental illness, the diagnosis of PCP intoxication lacked sufficient indicia of trustworthiness to be admissible, and that other portions of the records lack relevance without expert testimony.
. Fed.R.Evid. 803(6) explicitly gives the trial court discretion to exclude records where "the source of information or the method or circumstances of preparation indicate lack of trustworthiness.” See also Fed.R.Evid. 403 (trial court may exclude otherwise relevant evidence if its probative value is "substantially outweighed by the danger of unfair prejudice
. See, e.g., White v. Zutell,
. See, e.g., Bartkoski v. Pittsburgh & Lake Erie R.R. Co.,
. See, e.g., Thomas v. Hogan,
. See, e.g., United States v. Ware,
. See, e.g., Glawe v. Rulon,
. See, e.g., Lew Moon Cheung v. Rogers,