Kevin Dwayne Smith v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judge Bray, Senior Judges Cole and Overton
Argued at Richmond, Virginia
KEVIN DWAYNE SMITH
MEMORANDUM OPINION * BY
v. Record No. 2332-98-2 JUDGE RICHARD S. BRAY
FEBRUARY 29, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HANOVER COUNTY
Barnard F. Jennings, Judge Designate
Linwood T. Wells, III, for appellant.
Michael T. Judge, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Kevin Dwayne Smith (defendant) was convicted in a bench trial
of involuntary manslaughter. Defendant complains on appeal that
the trial court erroneously admitted into evidence certain
hospital records and a report of the medical examiner, documents
that he characterizes as hearsay. Finding no error, we affirm the
conviction.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
I.
Two exhibits from the Medical College of Virginia Hospitals
(MCV) were received into evidence over defendant's objections.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Exhibit 4 was comprised of hospital records that recited medical
data and narrative related to treatment of defendant for injuries
suffered in the automobile accident subject of the instant
prosecution. The exhibit included two discernable references to
defendant's blood alcohol concentration, "Alcohol level 2050" and
"ETHANOL 2050 MG/L." Exhibit 5, generated by the "MCV Toxicology
Lab," reported defendant's blood ethanol at "2047 MG/L."
Throughout both exhibits, the "patient" is identified either as
defendant, by name, or as "XQ, MR.," with a consistent record
number.
Linda Chapman, MCV Assistant Director of the Department of
Health Information Management, "the keeper of records for MCV,"
testified that Exhibit 4 reflected "authorized notes," "made in
the ordinary course of business," "pretty close to the time of the
transaction." She explained that a patient unknown upon admission
is initially designated "Mr. X" and assigned a "medical record
number." Once identified, the patient is "cross-matched" to his
or her record number and all related documentation is then
correlated both by name and number. Chapman confirmed that the
exhibit embraced that portion of defendant's records designated in
a subpoena duces tecum issued incidental to the subject
prosecution.
Jung Lee, a MCV "pathology supervisor," identified Exhibit
5 as "printouts from the . . . alcohol scans run on a Mr. XQ" by
MCV Toxicology Technologist Bruce Dressel, reports also produced
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in response to the subpoena duces tecum. Lee acknowledged that
the "records and entries were made regularly in accordance with
the lab technicians" at MCV, "near the time of [the]
transaction," and that the technicians "were authorized to make
those entries on the records." Upon review of the exhibit, Lee
testified that the "alcohol scan" indicated an "alcohol . . .
recording" of 2047. Dressel confirmed that he conducted the
test reported on Exhibit 5 and that the equipment which produced
the results was "working correctly that . . . night."
Dr. James C. Valentour, a toxicologist, testified that a
"2047 reading of ethanol" "would translate to about a .17 or a
.18 percent by weight/by volume whole blood alcohol." Dr.
Valentour opined that an individual "with that blood alcohol
content" would experience "a marked influence on performance and
behavior," a generalized impairment of an array of specified
intellectual and motor functions.
In unsuccessfully objecting to the receipt of the two
exhibits into evidence, defendant argued that (1) the documents
were hearsay, (2) no "nexus" connected defendant to the
exhibits, and (3) the evidence failed to establish the "chain of
custody" necessary to authenticate the test results. When the
Commonwealth contended that the exhibits were admissible under
the "business records exception[] . . . to the hearsay rule,"
defendant countered that the exception was applicable only to
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"civil cases" and did not dispense with the need to prove chain
of custody.
Virginia has adopted the modern "Shopbook Rule" as an
exception to the hearsay rule in both civil, see e.g., Neeley v.
Johnson, 215 Va. 565, 211 S.E.2d 100 (1975), and criminal, see
e.g., Frye v. Commonwealth, 231 Va. 370, 345 S.E.2d 267 (1986),
proceedings.
"Under the modern Shopbook Rule, . . .
verified regular entries may be admitted
into evidence without requiring proof from
the regular observers or record keepers,"
generally limiting admission of such
evidence to "facts or events within the
personal knowledge of the recorder." . . .
However, this principle does not necessarily
exclude all entries made by persons without
personal knowledge of the facts recorded; in
many cases, practical necessity requires the
admission of written factual evidence that
has a circumstantial guarantee of
trustworthiness.
Fitzhugh v. Commonwealth, 20 Va. App. 275, 280-81, 456 S.E.2d
163, 165 (1995) (citation omitted) (emphasis added). "The
trustworthiness or reliability of the records is guaranteed by
the regularity of their preparation and the [reliance] of [the]
business . . . entities for which they are kept." Sprinkler
Corp. v. Coley & Peterson, 219 Va. 781, 793, 250 S.E.2d 765, 773
(1979).
However, the "[a]dmission of such evidence is conditioned
. . . on proof that the document comes from the proper custodian
and that it is a record kept in the ordinary course of business
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made contemporaneously with the event by persons having the duty
to keep a true record." Id.; Lee v. Commonwealth, 28 Va. App.
571, 576, 507 S.E.2d 629, 632 (1998). Such "authenticat[ion]"
or "verifi[cation]" must be provided "by some person . . . who
can testify that the record was made in the ordinary course of
business. A supervisor responsible for the custody of the
records should suffice for this purpose." Charles E. Friend,
The Law of Evidence in Virginia § 18-15 (5th ed. 1999). To
require the "entrant" to appear and testify would defeat the
rule. Id.
Here, the Commonwealth established that the patient records
which comprised both Exhibits 4 and 5 were made and maintained
in the ordinary course of hospital business. The documents were
connected to defendant, initially by number, and, later, by both
name and number, in accordance with established hospital
procedure. Produced before the court in specific response to a
subpoena duces tecum, witnesses verified that the records
reflected entries made by "authorized" persons "very close,"
"near," the event. Nothing in the record before the court
suggested tampering, contamination or other grounds to discredit
the evidence. The reliance upon the hospital records for the
treatment and care of patients is manifest. Thus, under the
instant facts, we conclude that both Exhibits 4 and 5 were
admissible under the modern Shopbook Rule exception to hearsay,
as evidence of the facts recited therein.
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Defendant's challenge to the exhibits as hearsay reports of
unauthenticated tests is without merit. 1 Defendant correctly
reminds us that "[w]hen the Commonwealth offers testimony
concerning the physical or chemical properties of an item in
evidence, . . . authentication requires proof of the chain of
custody, including 'a showing with reasonable certainty that the
item has not been altered, substituted, or contaminated prior to
analysis, in any way that would affect the results of the
analysis.'" Reedy v. Commonwealth, 9 Va. App. 386, 387, 388
S.E.2d 650, 650-51 (1990) (emphasis added) (quoting Washington v.
Commonwealth, 228 Va. 535, 550, 323 S.E.2d 577, 587 (1984), cert.
denied, 471 U.S. 1111 (1985)). However, the requisite
authentication may be established through various proofs. Under
the instant circumstances, the Commonwealth properly relied upon
the modern Shopbook Rule to establish the admissibility,
trustworthiness and authentication of the exhibits.
II.
Defendant next argued that the court erroneously admitted
into evidence the "Report of Investigation by the Medical
Examiner." Notwithstanding the provisions of Code § 19.2-188,
defendant condemns the report as inadmissible hearsay. However,
1
Defendant's additional argument on brief that the records
otherwise failed to qualify under the exception was not
presented to the trial court and, therefore, will not be
entertained on appeal. Ohree v. Commonwealth, 26 Va. App. 299,
308, 494 S.E.2d 484, 488 (1998); see Rule 5A:18.
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apart from the merits of defendant's objection, the trial court,
following argument of counsel, determined that defendant had
previously stipulated to the report. "The admissibility of
evidence is within the broad discretion of the trial court, and
a ruling will not be disturbed on appeal in the absence of an
abuse of discretion." Blain v. Commonwealth, 7 Va. App. 10, 16,
371 S.E.2d 838, 842 (1988). Our review of the ruling in issue
discloses no abuse of discretion.
Accordingly, we affirm the conviction.
Affirmed.
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