NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Irene, 462 Mass. 600 (2012)

CONTRIBUTING EDITOR: JUSTIN A. KESSELMAN I. Procedural History

Following a jury trial in Essex County Superior Court, Herman Irene (the Defendant), was convicted of armed robbery in violation of G. L. c. 265, 17. The Defendant appealed on grounds that the trial court improperly admitted hearsay statements into evidence and that such statements violated his right of confrontation under the Sixth Amendment to the United States Constitution. The Supreme Judicial Court transferred the case on its own motion.1 II. Facts A passenger in a Lawrence taxicab robbed the driver at knifepoint and fled. The driver exited the taxicab, aimed his .40 caliber pistol at the fleeing robbers back, and fired.2 The robber fell to the ground, dropped his hat, and then continued to flee. Witnesses heard the robber exclaim that he had been hit. Soon thereafter, the police apprehended the Defendantwho matched the witnesses description and was suffering from an apparent gunshot wound to the back.3 The Defendant was taken to the hospital where he signed an acknowledgment of his Miranda rights and was questioned by the police. The Defendant denied robbing the driver, as well as even being in the cab or dropping the hat found near the scene. Rather, he claimed that he had been shot after fleeing from a car full of punks that had attempted to mug him several blocks away from the taxicab robbery.4 At trial, the Commonwealth secured a conviction by producing the following evidence to the contrary: (1) testimony of a lab analyst that DNA
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Commonwealth v. Irene, 462 Mass. 600, 601 (2012). Id. at 602. Id. at 603. Id. at 604-605.

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collected from the hat at the scene matched the Defendants DNA;5 (2) the Defendants hospital medical record, which was admitted through a hospital information specialist as a business record under G. L. c. 233, 78 and read: The patient states that he was minding his own business while he was in a taxicab when he got shot;6 and (3) testimony from three witnesses as to what the robber said after the shot was fired, including a statement that I heard that he said, Oh, my mother, my mother.7 III. Issues Presented 1. Whether the witnesses trial testimony concerning the fleeing robbers statements constituted inadmissible hearsay. 2. Whether the hospital medical record was improperly admitted as a business record under G. L. c. 233, 78, and if so, whether that admission violated the Defendants Sixth Amendment right to confront the doctor who authored the report. IV. Holdings and Reasoning 1. The SJC held that the witnesses testimony was properly admitted into evidence.8 The court determined that the robbers fleeing statements constituted spontaneous utterances, which arise where (1) there is an occurrence of an event sufficiently startling to render inoperative the normal reflective thought processes of the observer, and (2) if the declarants statement was a spontaneous reaction to the occurrence or event and not the result of reflective thought.9 Being shot is sufficiently startling to disrupt ones normal thought processes. Here, the witnesses testified that after the shot was fired, the robber fell and made statements indicating he was shot. Accordingly, the court held that the evidence was sufficient to conclude the robbers statements were in reaction to the startling event and, therefore, was admissible as a spontaneous utterance.10 Alternatively, the court observed that the evidence supported a finding that the declarants statements were expressions of present pain, which are excepted from the rule against hearsay.11 The court also disagreed that the testimony, I heard that he said, suggested the witness heard the robbers statement third-hand. Rather, the court noted that this testimony was made through an interpreter in response to a question regarding the witnesss personal observation and, in any event, was clarified through the
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Id. at 604. Id. at 608. 7 Commonwealth v. Irene, supra at 605. 8 Id. at 607-608. 9 Id. at 606-607, quoting Commonwealth v. Santiago, 437 Mass. 620, 623 (2002). 10 Id. at 607. 11 Id. at 607, quoting Murray v. Foster, 343 Mass. 655, 658 (1962).

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Commonwealth v. Irene

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Defendants cross-examination.12 2. The SJC held that the admission of the Defendants hospital record was error and that his statement therein was inadmissible hearsay.13 The court first examined, as a matter of first impression, the admissibility of a hospital record through the business records exception to the rule against hearsay.14 The court focused on the fact that an exception for hospital records already existed in G. L. c. 233, 79a provision that imposes specific limitations on the admissibility of medical records, such as a relationship between the recorded statement and the defendants treatment or medical history. In this case, 79 was not applicable because this relationship was plainly absent.15 The court also took particular note of the fact that the two sections were enacted to address different concerns: 78 was enacted in recognition of the reliance that the modern commercial world placed on the accuracy of routine records, while 79 was enacted primarily to relieve the physicians and nurses of public hospitals from the hardship and inconvenience of attending court as witnesses to fact which ordinarily would be found recorded in the hospital books.16 The prosecution was not permitted to perform an end-run around the 79s limitations by characterizing it as a business record under 78, an exercise that would expand the scope of 78, while rendering 79 superfluous.17 Because it found that the medical records were inadmissibleand because the Defendant did not preserve his constitutional claim through an objection at trialthe court did not address whether the admission of the statements therein violated the Confrontation Clause.18 However, the court did proceed to opine on the relationship between the Confrontation Clause and the hospital records exception. Significantly, the court determined that records admissible under 79 were of the same kind as the medical reports created for treatment purposes deemed not testimonial by the Supreme Court19 in Melendez-Diaz v. Massachusetts.20 Therefore, statements related to treatment admissible under 79 do not run afoul of the Confrontation Clause.21 The SJC held that the medical record statement was erroneously admitted into evidence; however, the error did not prejudice the

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Commonwealth v. Irene, supra at 606 & n.12. Id. at 616. Id. at 609. Id. at 614-616. Id. at 613-614, quoting Commonwealth v. Gogan, 389 Mass. 255, 263 (1983). See Commonwealth v. Irene, supra at 612, 616. Id. at 616-617 & n.24. Id. at 617. 557 U.S. 305, 312 n.2 (2009). Commonwealth v. Irene, supra at 618.

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Defendant: An error is not prejudicial if it did not influence the jury, or had but very slight effect.22 The Court concluded that the following evidence was sufficient to support the judgment: (1) the testimony of eyewitnesses; (2) the location of the Defendant when apprehended; (3) the DNA evidence linking the Defendant to the hat dropped by the robber; (4) the Defendants own admission that he had been wearing a similar hat that evening; and (5) the Defendants repeated inconsistent statements to police. As a result, the judgment against the Defendant was affirmed.23

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Id. at 618-619, quoting Commonwealth v. Cruz, 445 Mass. 589, 591 (2005). Commonwealth v. Irene, supra at 619.