*1 478 A.2d Craig Wesley MOON Maryland. STATE Term, Sept. No. 1982. Appeals Maryland.
July 1984. *2 Defender, (Alan John L. Kopolow, Asst. Public Baltimore Defender, H. Murrell, Baltimore, brief), Public on the for appellant. Gen., (Ste- L. Baltimore Cummings, Atty.
Alexander Asst. brief), Sachs, Gen., Baltimore, on the Atty. H. phen appellee. ELDRIDGE, COLE, DAVIDSON, SMITH,
Argued before COUCH, JJ., MEN- and W. ALBERT RODOWSKY CHINE, Judge Special Appeals Associate of the Court (retired), Specially Assigned.
COLE, Judge. again Wesley petitioned Moon has
Once
Craig
for relief. Moon’s difficulties stem from his involvement
18, 1979,
accident of
Route
February
an automobile
U.S.
north
travelling
140. Moon was
when he collided with
in the
lane
killing
passen-
vehicle
southbound
driver
of that vehicle. He was tried and convicted of two
ger
*3
manslaughter,
counts of automobile
two counts of homicide
intoxicated,
motor
reckless
driving, driving
vehicle while
intoxicated,
driving and
to drive on
negligent
failing
while
half of the road. The first time this matter came
right
our attention the
our review of a
requested
per
State
opinion
Special Appeals reversing
of the Court of
curiam
determined that cer-
Moon’s conviction because
in
tain test results were received into evidence
violation of
§§
10-309,
(1974,
10-302 to
Repl.Vol.)
Md.Code
Courts
154,
State, No.
Proceedings
and Judicial
Article. Moon v.
Term,
30,
1980, filed
1980. This Court
September
October
held that
Special Appeals
the Court of
because we
reversed
performed
from
and the
test
the blood taken
Moon
chemical
required
done to determine treatment
rather
thereon were
prosecution.
for criminal
We remanded
than as evidence
the issues raised but not
this case to the court to consider
463,
(1981).
Moon, Md.
Moon filed writ Before consider the constitutional issue raised. granted to his of confrontation and cross- us Moon contends that by admitting hospital tests examination was violated of the tech- presenting into without evidence recite the chemical tests. We shall performed nician who as are the issue necessary place such of the facts proper focus. 18, 1979, February approxi-
The accident occurred on prior at trial indicated that mately Testimony 12:30 a.m. at a proceeding erratically the accident Moon’s car was seen at the scene noted an high speed. arriving rate of Persons ac- odor of alcohol in Moon’s car. The medical attendant Police to the Univer- companying helicopter Moon a State Trauma Unit detected an odor sity Maryland Shock attending Moon’s At the alcohol on breath. screening x-ray drug ordered examinations and physician *4 in An performed. osmolality performed tests to test was be of the Trauma Unit and a laboratory the clinical Shock laboratory. in the performed hospital alcohol test was blood alcohol con- reading The was 347 and the blood osmolality tests re- determined to be These centration was 0.165%. records. hospital a of and included in Moon’s part sults were hospital kept that the records were parties stipulated The and it hospital’s course of the business was ordinary of the records to produce the custodian unnecessary However, to Moon. pertaining authenticate the file as to the of the osmo- stipulation admissibility did not extend alcohol test results. The defense main- lality and blood could question admissibility tained that before confront and right resolved it had the cross-examine the technician who conducted the tests and obtained laboratory The that these tests routine argued the results. State were were, therefore, and procedures followed under the records statutory exception admissible business (1974, rule provided Maryland as Code § 10-101, Repl.Vol.) Proceedings Courts and Judicial Thus, persisted Article. the State the defendant’s him right against outweighed to confront witnesses was of the records and fact by the inherent trustworthiness present that the technician was laboratory available the courtroom at the time of trial of no significance. therefore, State, declined to call the Be- technician. unwilling cause the defense was to vouch for the techni- it, too, cian’s refused to call him as a credibility, witness. The trial court admitted the hospital records as business statute, records under the and the called Dr. Yale H. State Toxicologist of the Medical Examiner’s Caplan, Chief State Office, objection, to interpret over results blood alcohol and tests. Dr. he osmolality Caplan testified that familiar with the generally testing procedures blood at University Hospital; osmolality used that an test is an conducted objective prior pre- test to treatment to indicate if liminary alcohol was involved the condition of the that the patient; osmolality test is not a definitive test of indicator; only reading alcohol but an that a 347 osmolality is consistent with blood alcohol concentration of 0.15 or 0.16%; that the analysis very high blood definitive with degree precision accuracy; person that a with a alcohol level of experience heightened blood will 0.165% self-confidence, time, increased reaction decreased concen- impaired tration and vision. objecting addition to to Dr. Moon Caplan’s testimony,
claims he was denied the question authenticity of these tests because the State did not produce labora- *5 the alcohol test contends that blood technician. Moon tory discrepancies. significant several is saddled with report rather contains not state his name but First, report the does following the Doe 8515” in the blank description “Male the in the admits that other documents He “patient.” notation same his and also contain the name report specify hospital re- toxicology that the Moon further notes number 8515. 2:49 as “2-18-79 time of blood withdrawal indicates the port of is indicated as a.m.”; however, report the date the of the argues without “2-21-79.” Moon technician, report certain that the cannot be trial court report and/or him or the blood test why is about the test was conduct- allegedly three after days made until report a direct the timeliness of has He maintains that ed. Thus, be- squarely poses its Moon bearing reliability. admitting of whether question us the fore laboratory producing first records into evidence without right constitutional violated his as a witness technician confrontation. States Amendment the United Constitution Sixth the accused prosecutions, that: “In all criminal
requires
to be confronted with the witness
enjoy
right
...
shall
him____”
Maryland
Declaration
Article
against
every
“in all
requires
prosecutions,
criminal
Rights
a
to be confronted with the witnesses
right
man hath
...
him____”
note, therefore, that these provisions
We
against
210,
State,
Md.
“the
v.
right.”
secure
same
Crawford
(1978)
Collins, 265 Md.
211,
(citing
The first
indicted as a
the defendant was
(1881), in
Md. 350
which
the
providing
Act of
ch.
under the
defaulter
due shall “be
the taxes
showing
certificate
Comptroller’s
defalcation.” Id.
of such
as
evidence
prima
received
facie
the certificate
admitting
at 359. Johnson contended
against
the witnesses
by
to
confronted
right
violated his
be
noting
however,
argument,
Court,
rejected
him.
not to
Rights
of
of the Declaration
“provision
that this
oral evi-
except
excluding
as
all other evidence
understood
in court.” Id. at 360.
produced
of
dence witnesses
in Jones v.
later discussed Johns
Appeals
The Court of
case, the
(1954). In that
State,
528,
held on the states obligatory made fundamental a co-de- case, Pointer and In that Amendment. Fourteenth hear- for a judge preliminary taken before fendant were *7 at this The testified robbery. victim charge on a ing robber; however, neither Pointer as the hearing, identifying The victim by counsel. represented of the defendants prelimi- of his transcript and at trial the to California moved Point- introduced as evidence. nary hearing testimony reversed, holding Court Supreme and the er was convicted a time was taken at when testimony the that because adequate through counsel an not afforded Pointer was witness, denied his the he was to cross-examine opportunity of confrontation. privilege the dealing cited earlier cases with
The
in Pointer
under-
to illustrate the Court’s
Clause
Confrontation
instance, in
For
guarantee.
of this constitutional
standing
337, 39
States, 156
15 S.Ct.
U.S.
Mattox v. United
offered one of its earliest
(1895), the Court
L.Ed. 409
Clause:
of the Confrontation
interpretations
in
provision
of the constitutional
object
The primary
affidavits
parte
or ex
prevent depositions
question was
cases, being
in
admitted
civil
as were sometimes
such
examina-
personal
in lieu of a
prisoner
against
used
in which
witness
tion and cross-examination
the recol-
only
testing
opportunity,
accused has an
witness,
but
the conscience of
sifting
lection and
jury
to face
him to stand face
with
compelling
him,
his
judge by
at
may
look
they
order
he
and the manner
which
the stand
upon
demeanor
he
gives
testimony
worthy
his
whether
of belief.
There is
saying
doubtless reason for
the accused
any
safeguards
should never lose the benefit of
of these
witness;
that,
if
by
even
death of the
notes of his
read,
are
he is
testimony
permitted
deprived
be
of the
of that
of the
advantage
personal presence
witness before
jury
designed
which the law has
for his protection.
kind,
general
But
rules of.law of this
however beneficent
accused,
operation
their
and valuable to the
must
occasionally give way
public policy
to considerations of
criminal,
and the necessities of the
that a
say
case. To
after
once
having
been convicted
of a
witness,
certain
should
scot free
go
simply because death
witness,
has closed the mouth of that
would
carrying
be
his
protection
constitutional
to an unwarrantable extent.
in its
rights
law
wisdom declares that
shall not
public
wholly
be
sacrificed
order that an
may
incidental benefit
to the accused.
preserved
[Id.
242-43,
On several occasions
following
Supreme
Pointer
Court has further defined the confrontation
right.
*8
Alabama,
415,
1074,
Douglas v.
380 U.S.
85
13
S.Ct.
(1965),
States,
L.Ed.2d 934
and Bruton v. United
391 U.S.
123,
1620,
(1968),
88 S.Ct.
363 requirement unless the prosecutorial authorities have made good-faith presence effort to obtain his at trial.” Id. at 724-25, Barber, 88 at 1322. In S.Ct. the Court found that the witness was not “unavailable” because the State made procure no effort to the witness’ presence. Green, 1930, 90 U.S. S.Ct. California (1970),
L.Ed.2d 489 majority and a concurring opinion addressed the basic relationship between the rule hearsay right and the of confrontation. In that case the chief prosecution present evasive; witness was at trial yet became therefore, he questioned regarding prior inconsistent statements that inculpated defendant. California law allowed substantive use of the statements prove truth of the matters asserted therein. The defendant was Supreme convicted and the California Court affirmed a reversal, reasoning lower court’s that substantive use of a inconsistent prior statement was precluded by defend- ant’s Sixth Amendment to confrontation. The Su- preme Court vacated this judgment concluding that alteration of California’s evidence did not law violate the rights. defendant’s constitutional
The Supreme began its analysis by reviewing the relationship between the Confrontation Clause and the hear- say rule. The Court noted: may
While it conceded that readily be rules and hearsay the Confrontation are generally designed pro Clause values, tect quite similar it is a different thing suggest that the overlap complete and that the Confrontation is nothing Clause more or less than a codification of the rules of hearsay exceptions and their as they existed historically at common law. Our decisions have never indeed, congruence; established such a we have more than once found a violation of confrontation values even though the statements in issue were admitted under an arguably recognized exception. See Barber v. Page, (1968); U.S. 719 S.Ct. 20 L.Ed.2d [88 255] Texas, Pointer v. U.S. S.Ct. 13 L.Ed.2d [85 *9 (1965). equally merely The converse is true: be 923] 364
cause evidence is admitted in violation of a long-estab
hearsay
lished
rule does not lead to the automatic conclu
rights
[Id.,
sion that confrontation
have been denied.
399
155-56,
(footnote omitted).]1
U.S. at
In Dutton v. 400 U.S. 91 S.Ct. 27 L.Ed.2d (1970), a plurality opinion, (Evans) the defendant first-degree Shaw, convicted of murder. an At trial inmate (an of the same institution accomplice as Williams Special Appeals recognized 1. The Court of also has the Confronta- hearsay synonymous. Gregory tion Clause and rule are not State, 297, 309, (1978), Md.App. Judge engaged A.2d Wilner thorough analysis problem sugges- in a of this and concluded: "The particular tion that of confrontation is no more than a expression or emanation of the rule does not find substantial support historically." *10 from returned his murders), when testified that Williams for that hadn’t Evans he lamented if it been arraignment testimony was be in this now.” Shaw’s “we wouldn’t to the co-conspirator exception the Georgia under admitted for Fifth Circuit The the hearsay Appeals rule. Court for petition denial of Evans’ reversed the District Court’s he denied corpus, concluding that had been of habeas writ Supreme to The right Amendment confrontation. his Sixth reversed, appropriate not on the agree could Court but rationale. refusal to reaffirmed the Court’s plurality opinion In rule. Clause and the
equate the Confrontation
not deprive
the
did
admitting
that
statements
concluding
fo-
right,
plurality
the
defendant
his constitutional
not
First, it
that the case did
factors.
noted
cused
two
“devastating,”
or
be-
was “crucial”
involve evidence that
witnesses.
prosecuting
were nineteen other
cause there
Second,
statement was offered
noted that the
plurality
of relia-
sufficient indicia
Evans and there were
identify
it
this statement
that
bility
connection with
use of
interest.
against
penal
spontaneous
was
Williams’
result, concluding
that
Harlan
Justice
concurred
appropriate
standard
process
really
due
of law
his
explained
Harlan
of evidence.
reviewing state rules
Green,
v.
he
departure from the
took
position
California
evidence, notably
types of
busi-
stating that certain
supra,
requiring
that
records,
reliable
intrinsically
ness
were so
difficult,
pointless.
if not
may
production of
declarant
be
In
and Dutton.
Maryland
Two
followed Green
cases
(1972),this
Collins,
v.
265 Md.
288 A.2d
State
his
confronted
right
by
concluded that
defendant’s
an
witness’
by admitting
accusers was violated
unavailable
of, deposition
the defendant received no notice
when
at,
deposition. Judge Digges
observed
present
exceptions
been limited
traditionally
there have
“But
cross-examine witnesses.
these
right
confront and
permitted
scrutiny
after close
have
been
only
aberrations
has disclosed that
this type
necessary
evidence is both
and so
that it
intrinsically
subjected
reliable
need not be
rigors
cross-examination.” Id. at
In
State,
(1978),
Md.
367
grounds,
other
nonethe-
of Ohio affirmed on
Supreme Court
transcript
inadmissible.
holding
less
upon
noted
it was “called
Supreme
The
Court
again
relationship
once
between the Confronta-
consider
many
its
exceptions.”
rule with
tion Clause
that it
62,
acknowledged
The Confrontation Clause First, range hearsay. of admissible ways to restrict the for face-to- preference the Framers’ conformance with rule accusation, establishes a the Sixth Amendment face (including cases were necessity. In the usual case occurred), has the prosecution cross-examination prior of, unavailability produce, must either or demonstrate against it wishes use the declarant whose statement Stubbs, 408 U.S. the defendant. See Mancusi v. [92 (1972); Barber v. Page, L.Ed.2d S.Ct. 293] (1968). also See S.Ct. L.Ed.2d U.S. 255] [88 *12 993, 44 States, 178 458 Motes v. U.S. S.Ct. United [20 U.S., Green, at (1900); 399 L.Ed. v. 1150] California 161-162, 165, S.Ct., 1936-1937, 1939 n. 167, n. 16 at [90 16].7 to operates
The second once a witness is shown aspect aug- to Reflecting underlying purpose unavailable. its be by ensuring the accuracy factfinding process ment in the evidence, an test adverse defendant effective means to such only hearsay countenances marked with the Clause material departure trustworthiness that “there is no from general reason of the rule.” v. Massachu- Snyder the setts, 291 U.S. [97] at 107 [54 S.Ct. 330 at 333].
[*] s¡c [*] [*] [*] [*] of re applied reliability” The Court has this “indicia hearsay concluding that certain quirement principally by admis such foundations that exceptions upon rest solid them with comports sion of evidence within virtually any 368
the of the constitutional protection.” Mattox “substance States, U.S., v. United S.Ct., at 244 156 at This [15 340].8 reflects the truism “hearsay rules the Confronta generally tion Clause are designed protect similar Green, values,” U.S., S.Ct., 399 at 155 [90 California Dutton v. 1933], roots,” at and “stem from the same Evans, 210, 218, S.Ct. U.S. L.Ed.2d [91 213] (1970). It the responds also need for the certainty workaday conducting of world criminal trials. sum,
In hearsay when a declarant is not present trial, at cross-examination Confrontation Clause nor mally a requires showing he is unavailable. Even then, his statement is if it only adequate admissible bears “indicia reliability.” Reliability of can be inferred with more in a out case where evidence falls a within cases, firmly exception. In other rooted excluded, showing evidence be at least must absent particularized guarantees trustworthiness.9 [Id. 65-66, at U.S. S.Ct. at 2538-2539.] “unavailability” footnote Court indicated when Evans, Dutton v. Citing supra, might required. utility suggested that if the of trial confrontation “so remote” prosecution would not be required produce seemingly available witness.
The Court then applied analysis the facts Roberts. of the test reliability aspect was satisfied because Roberts’ attorney effectively cross-examined hearing. witness the preliminary Although she was defense, called the form of her examination was “replete leading questions” with equivalent significant Thus, cross-examination. the defense able reliability to test the testimony. Regarding availabil- *13 ity, Court held that the trial court of correctly Ohio concluded that unavailability the witness’ had been estab- lished.
These cases make indelibly clear that the essence the Confrontation Clause is to secure the right of the him produced against the witness to have defendant is unavaila- when witness is noted exception An court. out-of-court trustworthy otherwise made an and has ble circumstances, unavailability may In such statement. effort good-faith demonstrates when the State established to no avail. but the witness produce the courts where circumstances suggest also The cases the evidence because violation found no confrontation have reliability. indicia of clothed with substantial offered is to be testimony declarant’s admitted without evidence is Such prove unavailing likely would the witness producing when fall within this hospital records Business and pointless. or which allows exception hearsay generally and category enactment. by statutory is expressed their admission of a approval its has evidenced Maryland legislature The in Md.Code rule to the exception records business § 10-101, Pro- and Judicial (1974, 1984 Courts Repl.Yol.) However, admissibility as to ceedings Article. for crimes prosecutions of alcohol test results records to have seems driving, Maryland of drunk growing out deep concern expressed and its policy made a statement of confronta- defendant’s preservation of a with legislature under the statute. prosecutions tion in reliable ordinarily test results are made clear that alcohol Md.Code as records. See admissible business generally §§ 10-309, Courts and (1974, 10-302 to Repl.Vol.) dealing procur- with (generally Article Proceedings Judicial results). governs 10-306 test Section using alcohol ing provides: the test results and admissibility (b), any of subsection (a) provisions Subject consumption due to the intoxication criminal trial which alcohol, is an influence of alcohol, under the being or a chemical test of results of issue, copy an official authorized to person or administered breath blood test, as substantive evidence is admissible administer the who of the technician or presence without the administered the test.
(b) If the
decides to offer the test results
State
without
technician,
shall,
days
it
at least 15
testimony
trial,
notify
attorney
the defendant or his
writ-
before
of its intention and deliver to the defendant or his
ing
of the test results to be offered.
If the
attorney
copy
present
defendant
the technician to
and testify
desires
be
trial,
notify
writing
he shall
the court and the State
trial;
if
days
no later than 5 business
before
and
such
proper
given,
and
notice is
the test results are
timely
testimony
without
of the technician.
inadmissible
n Failure to
give timely
proper
and
notice constitutes a
right
presence
waiver of the defendant’s
of the technician.
testimony
§ 10-306(b)
to us that
designed
It seems
of alcohol test results to the
admissibility
subordinate
of the defendant’s
of confrontation.
timely
right
assertion
the tester to
requires
produced, upon
The statute
request,
may
defendant’s
before the evidence
be admitted
despite
reliability,
its
and the defendant does not have to
proffer
prove
what he intends to
from this witness.
circumstances,
the legislature
safeguarded
these
has
and elevated it
right
defendant’s Sixth Amendment
over
declared
what
the statute has
to be reliable evidence.
Moon,
course,
10-306(b)
contends that the stricture of
he
pertains
proceedings
charges
to these
since the
must
However,
driving.
emanate from drunk
we held
answer
Moon,
(1981),
Md.
Here,
present
the witness was
the courtroom when
to
pointing
discrepancies
a number of
on the
objected,
Moon
to
report
reliability.
face of the
which raised
doubt as
its
hospital
as to the
Moon claimed that the
records were silent
Dr.
performed.
Caplan
kind of blood alcohol test
had
he was
generally
indicated that while
familiar with
tests
he
not
University Hospital,
did
know which
employed
hospital
many
tests used
specific procedure
fact,
a matter of
counsel
followed. As
when defense
was
explain
Doctor
a blood test was
sought to have the
how
off
the trial court cut
the cross-examination
performed,
that,
It
to us
objection.
to the
is obvious
response
State’s
circumstances, defense
had a sound
counsel
under these
and if the technician
inquiring what test was used
for
basis
test.
qualified to conduct the
was
Furthermore,
completed
it
report indicated that was
21,
patient
from the
the blood was drawn
February
on
and
raise
seri-
potentially
18. These facts
several
February
on
on
may have addressed
cross-exami-
questions
ous
counsel
had
argument
told
trial
nation. Defense counsel
on
21st
performed
and
blood
that the test was
court
know
to the
happened
He did not
what
drawn on the 18th.
interim,
is,
if it
how or
was
sample in the
blood
chemi-
on whether
preserved. Cross-examination
properly
stability,
to the blood to maintain its
agents
cal
were added
evapo-
in a container
avoid
deposited
if the
was
blood
ration,
refrigerated
prevent
if the
properly
blood was
reliability.
to a determination of
germane
was
putrefaction
Association,
Medical
Committee on
American
generally
See
Problems,
Driver,
Impaired
Alcohol and the
Medicolegal
Aspects
on
Chemical Tests
Medicolegal
A Manual
(1968). A most
was
important question
Intoxication
for
part
was
on the 21st as
performed
whether the blood test
Moon
in the
three
treatment.
had been
Moon’s
days,
operated
placed
been
in casts for
injuries
his
prior
logical
21st.’ It
February
would be
counsel to
inquire how
drawn on the 18th and tested
blood
on the 21st
had
value' for
any diagnostic
already
treatment
If
received.
counsel elicited from the technician that the test
con-
was
ducted on
in response
police request,
the 21st
to a
the trial
judge
concluded that
may
performed
have
the test
and,
therefore,
connection with Moon’s treatment
was not
Moon
pathologically germane
reason
was in the
Hicks,
hospital.
563,
Cab
See Yellow
Co. v.
Md.
(1961);
A.2d 501
Shirks Motor
Express
Oxenham,
(1954);
Md.
Moon also report the did not his bear name rather speculate but a number. We do not as to what Moon’s seek prove by counsel would the cross-examining point. witness We do take note that trial is counsel ingenious often resourceful and in making right use of the of say cross-examination. Suffice it here that the areas important we single enough out are indicate that cross- examination would have been frivolous or pointless. recognize that ordinarily hospital (business)
While we here, reliable, records are as regarded because Moon was right technician, denied the to be confronted with it is questionable report properly whether admitted under 10-101(c) the business records statute. Section of requires Courts Article that business records be made “at the are time done or they within reasonable time [Emphasis No supplied.] testimony was afterwards.” presented at trial regarding hospital standard procedure explanation there was no three-day delay if it is assumed the test was made on the 18th. Timeliness the relia- is related to logically record preparing a business accurate Here, can make no record itself. we bility means because the reliability the document’s assessment of from, the de- were withheld testing its trustworthiness fendant. § 10-306 of the short, although we conclude case, in this application has no facts Article
Courts the conclusion we forth therein buttresses set policy analysis—that Moon’s constitutional through have reached 21 of Article guaranteed by right confrontation Amendment Rights and the Sixth Declaration Maryland denied trial Constitution was when to the United States before require technician court did not the alcohol test results. admitting THE COURT OF SPECIAL APPEALS OF JUDGMENT THAT COURT AND REMANDED TO CASE REVERSED THE CIRCUIT THE JUDGMENT OF TO REVERSE AND REMAND TO CARROLL COUNTY COURT FOR A TRIAL. CARROLL COUNTY THAT FOR NEW COURT PAY THE COSTS. TO
RODOWSKY, dissenting. Judge, I dissent. respectfully record Moon’s admitting issue whether evidence, of the blood including
into the results particularly test, “to be confronted with alcohol violated Moon’s *17 against him.” Const. Amendment VI. the witnesses U.S. was the exclusive basis Here the business records statute Clause for But the Confrontation evidentiary competency. receiving a in a criminal case from prohibit does not court objective record the re- reporting into evidence purposes ordered for of sults of a scientific test which was who is by conducted a technician treatment and which was In the of the independent of the view conclusion police. my but, placing its legally by is not incorrect majority only holding grounds, needlessly the Court on constitutional question
brings Maryland into the use criminal cases of exceptions the trustworthy most to the rule. hearsay University Hospital Moon’s file from into came evidence (1974, as a business record under Md.Code 1984 Repl.Vol.), § 10-101 the Proceedings of Courts and Judicial Article. stipulation, The foundation for admission was by a the effect of as if a mere which was custodian records personal knowledge who had no had testified. Moon’s trial counsel, arguing against admissibility laboratory of times report, at made statements somewhat inconsistent § having stipulated with his a foundation 10-101 for admis- take sibility. majority I it that concluded has Moon’s did to a stipulate counsel sufficient foundation for admitting Obviously, the exhibit under statute. if the to lay foundation, State failed case proper should be Maryland resolved under evidence law Court should address constitutional issue. level, At the constitutional Court Supreme “has not ‘map sought theory out a of the Confrontation Clause determine of validity hearsay would all “excep- ... ’ ” Roberts, 64-65, tions.” 56, Ohio v. 448 U.S. 100 S.Ct. 2531, 2538, (1980) (quoting L.Ed.2d 597 California Green, 149, 1937, 399 U.S. 90 S.Ct. 26 L.Ed.2d (1970)). Roberts is the most recent opinion the Court Roberts, on the Confrontation Clause. footnote 9 to 66-68, 2539-2540, id. S.Ct. at reviewed the outpouring scholarly commentary triggered complexity reconciling the Confrontation “[t]he Clause and but adopt any rules” refused to one theory controlling. as does, however,
Roberts general approach advise that “a problem Id. at discernible.” S.Ct. at 2538. operates Confrontation Clause in two separate ways to restrict the range hearsay. First, admissible in conformance with the Framers’ preference face-to- accusation, face Amendment Sixth establishes a rule of necessity. In the usual case ... the prosecution must *18 of, unavailability or demonstrate produce, either against it use statement wishes declarant whose defendant, [/d] in7 by footnote immediately qualified statement is
That (id.): part reads which Roberts however, is not unavailability, A of demonstration Evans, 400 U.S. v. required. Dutton always [91 the Court (1970), example, 210, 27 L.Ed.2d S.Ct. 213] that it so remote of trial confrontation utility found the seemingly a produce require prosecution did not witness.[1] available second then described the in Roberts Supreme
The of confrontation which aspect to be unavailable. a is shown once witness
operates augment accuracy Reflecting purpose underlying its an ensuring the defendant fact-finding process by evidence, the Clause means test adverse effective such trustworthi hearsay marked with only countenances from the reason departure ness that “there no material U.S., Massachusetts, 291 Snyder rule.” general at 333. at 54 S.Ct. [Id.] during its evidence approved placing State’s
Roberts an unavaila- which transcript case the rebuttal The hearing. a case given at preliminary ble witness had Nevertheless, record. dicta us deals with a business before present- question Amendment in Roberts answers the Sixth ed here. re- reliability” “indicia of applied Court has that certain by concluding
quirement principally that admis- upon such solid foundations exceptions rest with comports evidence within them virtually any sion protection.” Mattox of the constitutional the “substance This States, U.S., at 244 S.Ct. v. United 340].8 [15 and the “hearsay rules Confronta- reflects the truism that facts, against of an oral 1. Dutton approved, on use the accused its witness, coconspirator accused to the made admission coconspirator. prisoner of the fellow *19 tion Clause are generally designed protect to similar values,” Green, U.S., v. 399 at 155 at S.Ct. [90 California 1933], roots,” and “stem Evans, from the same v. Dutton 74, 210, 218, (1970). 400 U.S. 86 27 S.Ct. L.Ed.2d [91 213] responds It also to the need for in certainty workaday 66, at conducting of criminal trials. 100 world S.Ct. [Id. at 2539.] (omitted
Footnote 8 from the majority’s discussion of Roberts) tells us:
8See, Texas, e.g., U.S., S.Ct., v. Pointer 380 at 407 [85 declarations); States, at (dying Mattox v. United 1069] U.S., S.Ct., at (same); 156 243-244 at Man- [15 339-340] 204, Stubbs, 2308, cusi v. 408 U.S. 213-216 S.Ct. [92 2313-2314, (1972) (cross-examined 33 L.Ed.2d prior- 293] Comment, trial testimony); 651, (1970) La.L.Rev. (“Properly administered public business exceptions records would seem to among the safest of exceptions”). the hearsay [Emphasis added.] Evans, 74, 95-96, And see Dutton v. 400 U.S. 91 S.Ct. 222-223, (1970) (Harlan, J., L.Ed.2d 213 concurring).
Here the fact which the prove State seeks to by of introduction is laboratory report ethyl that the alco- hol sample concentration Moon’s 165 milli- blood grams per deciliter. In the language of the hearsay rule the “declarant” is the laboratory technician who performed the test yielded which that measurement. From the stand- point the first aspect the Confrontation Clause-hear- say exceptions relationship Roberts, as discussed declarant effect is because it be point- unavailable would less the State to call him as Experience an accuser. teaches technician, stand, us that the even if called to the would have rely hospital’s record of the test result in order accurately, testify or all. From the trustwor- standpoint, thiness Roberts tells us that the business exception records hearsay rule like a declara- dying tion, or like prior-trial cross-examined testimony, so that virtually any evidence within business record exception Clause of the Confrontation the substance with comports protection. are so these conclusions well-established
Likely because
appears never
Supreme the United States
practice,
Confrontation Clause
addressed a
have
substantially
was,
point
evidence.
records
objection to business
States, 227 U.S.
however,
a minor issue Heike United
(1913).
prosecu-
L.Ed. 450
That was
33 S.Ct.
the secret insertion
accomplished by
tion for customs fraud
collectors so
of the scales used
tax
into some
springs
underweighed. The Government
imported sugar was
higher than
weights
were
actual
sought
prove
*20
the
To do this
Govern-
by
agents.
recorded
customs
those
books,”
other
records,
“pink
of
called
ment offered business
the
persons called
by
made
cargoes
of the same
weighings
used
the
by
were
weighers” whose measurements
“city
to pay
much it was
company
compute
defendant
how
pink
the entries in the
books
sugar.
the
Persons who made
often
revealed that
identified them. Cross-examination
scale but
reading
on the
persons did not see
those
them. Hear-
weigher told
city
wrote down what a
simply
In
a
weighers.
are the
answer
say!
city
declarants
had said
argument the Second Circuit
Confrontation Clause
made the
“the
whose
that
witnesses
simply
were cross-
jury,
and
records admissible testified before
”
examined,
....
given for cross-examination
opportunity
or
(2d Cir.1911). On
States,
83,
F.
192
97
Heike v. United
Holmes, rec-
Court,
Supreme
through Justice
certiorari the
called as
had
been
ognized
city weighers
others,
reason, among
for the
but found no error
witnesses
the defendant
pink
accepted by
had been
books
145,
In
present
at 229.
admission of
record
an
containing
observer’s
of
report
scientifically
made
objective findings
the course of treatment
violates
Confrontation Clause
when the record is admitted
through
custodian who is not
following
the declarant.
cases courts held that the
introduction
as
of
records
business records did not
offend the
Amendment:
Sixth
United States ex rel. Hen
Redman,
(D.Del.1976)
son v.
419
678
F.Supp.
(emergency
noting
vagina
room record
and bleeding hymen
lacerated
of
Johnson,
rape victim);
v.
378
United
ex rel. Lurry
States
(E.D.Pa.1974),
F.Supp.
(3d Cir.1975)
818
510 F.2d
aff'd,
971
(same;
State,
also
of
presence
spermatozoa); Pickett v.
No.
3,
23,
504
1982),
Div.
November
reh’g de
(Ala.Crim.App.
28,
nied,
1982
(description
vaginal
December
trauma of
State,
rape victim); Henson v.
There is another class of criminal case in which accused persons argued have that the of introduction business or public records violated the Confrontation Clause. Those cases arise when the record in placed evidence is report by a scientist employed by the state to determine whether the matter tested is evidence of crime. Frequently the report is custodian, introduced or through through a supervisor, pursuant to a or statute authorizing authentica-
379
in
is
those cases
The
rule
majority
a certificate.
by
tion
Im
Clause violation. See
there is no Confrontation
that
Evalua
winkelried,
Constitutionality
Introducing
The
of
Against
Defendants,
Criminal
Laboratory Reports
tive
(1979).
taking this
majority
Hastings L.J. 621
30
See,
appears
e.g.,
to be substantial.
position
no-violation
(4th Cir.),
denied,
States,
380
If the
reports
foregoing
are sufficiently
cases
Clause,
not to
trustworthy as
offend
Confrontation
then
report
of
laboratory
the results of an objective test
by
independent
conducted on Moon’s blood
an
technician
acting at the request
attending
of
physicians at University
violate
Hospital cannot
the Confrontation Clause.
The
minority view this second class
case is illustrat-
Manson,
ed
491
by
F.Supp.
(D.Conn.1980),
Reardon v.
982
remanded,
(2d Cir.1981)
644
cause
F.2d 122
by
and
State v.
Henderson,
(Tenn.1977).
117
S.W.2d
Reardon involved
federal
corpus
two
habeas
cases. The Second Circuit re-
and
versed
remanded both cases for reconsideration under
§ 2254(d)
Mata,
28 U.S.C.
and Sumner v.
U.S.
(1981)
S.Ct.
L.Ed.2d 722
light
contrary
findings
factual
had
which
been made in the same
by
cases
Supreme
Court
Connecticut.
See Reardon Man-
son,
(2d Cir.1981).
Henderson, excluded a state supra, toxicologist’s report identifying substances to LSD marijuana. and Supreme Court distinguished of Tennessee the case before it from case like that before this when it said: it
“Yet must also be case, noted the records in this while they may satisfy requirements the technical of [the Tennessee business records as evidence statute], do not fit classic mold, business records ‘shop i.e. books’ or hospital records. in such Entries records are considered they reliable because are made in the course of business are routinely upon by relied others carrying affairs of the records, business. the case personnel medical life make and death decisions as a result of reports and record entries. documents are Such records,’ true ‘business and their trustworthiness stems from fact that they ‘prepared are for other use and ” incidentally only found pertinent litigation.’ [554 (quoting S.W.2d lower court’s opinion).] Under confrontation principles applied by the United Supreme Court, States courts, state and federal *23 the was admissible. Nevertheless record hospital Moon’s particular record as admission of this that the majority says Moon’s of confrontation record violated a business possible questions its face raised as record on the because its to trustworthiness. additional analysis some addressing majority’s the
Before After Police should be stated. the State background facts to Moon from the death scene Univer- helicopter had flown shock unit at he admitted into the trauma was sity Hospital, bleeding, included internal abdominal injuries 2:06 a.m. His arm, through through and lacerations left broken admitting note describes head The injury. cheek and a extremities, “combative, moving all ver- agitated, Moon as manner,” 2:15 six “blood By incoherent a.m. balizing 2:30 14 additional By a.m. performed. tests had been gas” Moon, osmolalia- including the performed tests had been By blood alcohol. 2:49 high test was indicative ty which had directed to various laboratories a.m. orders been attending the designed permit forms to preprinted means of screening check the of test or merely type physician “Male Doe the then identified as patient desired. For Moon, i.e., 8515,” doctors directed such orders the lab, lab,” hour the “hema- “microbiology” “chemistry-24 lab, lab,” “chemistry tology II-stat hour automated” “toxicology” and the lab. “chemistry-immunoassay” lab report This on which the issue latter order resulted into evidence report focuses. The came principally this case 4, the part complete University Hospital as Ex. of State’s one-page report, which includes the record on Moon. This as result, also marked State’s separately blood alcohol Ex. 4A. Ex. stipulated original 4 is the parties State’s question authenticity record. There is no about the Ex. really 4 or 4A. holds majority Exs. What given “hospi-
4A is One reason is that trustworthy. kind of tal silent as blood alcohol test records were H. Caplan, toxicologist Yale chief performed.” Doctor Office, for the the Medical Examiner’s Maryland State that, testified while blood test alcohol can be done in ways, several “it is basically objective analysis an chemical specific of blood for a substance.” From the trustworthi- ness it standpoint makes no difference which several “objective” methods was used. The says that majority Moon’s counsel “had a sound for inquiring basis ... if the qualified technician was conduct the test.” It stipu- lated that the hospital record was made in ordinary *24 course of business. In the face of this stipulation the that, majority says unless the technician testifies as to his is qualifications cross-examination, and subject admitting University Hospital a into report lab evidence as a business safeguards. record constitutional violates This is really air, out holding, of thin that laboratory presumed tests are be by unqualified conducted in ordinary technicians University Hospital, course at so that the explic- State must itly prove the contrary.
The majority emphasizes that Ex. 4A is dated February 21, 1979, space while report headed, “Time,” on that is completed 249 AM.” At “2-18-79 a on pretrial hearing suppress Moon’s motion to the toxicology defense report, that, counsel the upon informed court based counsel’s inter- view with the attending physician, AM refers to the attending time when the staff took the specimens to be tested. The order to the toxicology lab reflects that the physician checked initially preprinted a block request a screen,” “drug abuse then marked that by order “void” and long-hand a Drug “General Screen.” State’s Ex. Requested 4A, screen,” the reporting “general on is a reflecting form that tests were conducted for three types alcohol and for 15 other substances. The alcohol tests and two others utilized blood the remaining while tests were on performed a urine All specimen. tests other than that ethyl for alcohol negative. were I fail to see how Ex. 4A on its face demonstrates that its into admission evidence is an uncon- application stitutional of the Maryland business records stipulated statute. Because the parties that Ex. which 4A, includes prepared ordinary was course of busi- the conclusion should appeal of this ness, purposes for urine for 18 test drug screen to blood general that a to written request from days take three substances can report should not be that The conclusion report. untrustworthy. constitutional
Nevertheless, creates a majority addressed may “counsel have possibility out of added agents “chemical were whether cross-examination” if stability, the blood maintain its to the blood to if evaporation, container to avoid deposited refrigerated prevent putrefaction.” properly blood Hospital personnel words, University the risk of In other adulterating or altering, course business ordinary analysis preserved laboratory contaminating specimen great, report to be so and the majority is considered untrustworthy, so analysis therefore laboratory of the statute records application business ordinary respect constitutionally restricted. must be record. At the appellate majority’s ignores rhetoric counsel, with the motion defense hearing on the suppression *25 the testi- State, the court what acquiesence of the advised called to be he attending physician of the would were mony testify. Millitello, indicated that Doctor he
In with conversations time, is it has the when blood the bottom line where test, of the analysis particular drawn. But this 21st, 1979, alcohol, until February not done blood appears other date that the reason for that and that’s ... samples take number there—apparently, they put they’re of the treatment and during the course And then when thing. or some such freezer-refrigerator analyze all analyses, they just to do the it comes time time, economy or that be for at one whether samples sure as to Millitello himself wasn’t Doctor whatever. itway that’s the apparently but way, it’s done that why those are the facts. State’s I think that done.... [The it comes to others add when may have some Attorney] turn. his
This representation by defendant’s counsel furnished part
of the basis for the circuit
ruling
court’s
that the toxicology
report was admissible. Moon does not
attempt
retreat
from those representations
Court,
in his brief to this
indeed would not
permitted
be
to do so. Yet the majority
reverses Moon’s conviction by speculating that
the facts
might
contrary
be
representations
Moon’s own
trial court.
n
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
____”
in response
21st
to a. police request
State v.
Moon,
291 Md.
(1981) (Moon I)
Next we are told that would logical for counsel to “[i]t inquire how blood drawn on the 18th and tested on the 21st had any diagnostic value for treatment already received.” this respect the majority presupposes treatment ceased February although Moon remained hospital view, ized until March In my 6. the fact that an attending physician, as part of the immediate and total response shock unit, trauma 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 confronta tion to cross-examine the hearsay declarant concerning the medical reasons for ordering the general drug screen. The *26 2. Because Moon was incoherent and violent and also had a head injury, physicians may in the shock trauma unit well have been looking any help they get could to determine whether Moon’s injuries cause, behavior resulted from his or from e.g., some other drugs. technician, a Dennis laboratory declarant is and recorded the finding alcohol Seabolt, who made a blood Doctor Millitello tests ordered Why were result. technician Ordinarily laboratory a was medical decision. a concerning the qualified give expert is not a medical decision. underlying reasons majority’s it, I the fundamental error As see speculation evidentiary above is the elevation of rationale the sub- uses experience. majority fact common the untrustworthi- mood its discussion of junctive present Moon’s record. What Hospital Moon’s University ness of this is the sole concern. Under “might” have asked counsel experience is immaterial that the centuries it analysis rule it most shop book make dating adoption from would questions conjured by majority that the unlikely of trustworthiness any evidencing answers lack produce Thus, passing the standard for record. accepted from generally muster moves constitutional “might” record to defense counsel reliability whether Kafkaesque questions. Only to ask some such want reports on which standard could convert the admission constitu- regularly life death are into a or decisions based tional violation. held, testi- trial and Dennis Seabolt Moon’s new
When all knows is that his fies cross-examination that he observations, what will report recorded his accurately accomplished? have majority me to
Judges SMITH and MENCHINE have authorized dissenting in the they expressed state that views join opinion.