Sylvester Leo Guy v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Bumgardner
Argued at Salem, Virginia
SYLVESTER LEO GUY
MEMORANDUM OPINION * BY
v. Record No. 0198-01-3 JUDGE LARRY G. ELDER
JANUARY 8, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
William L. Wellons, Judge
Albert L. Shaw for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
Sylvester Leo Guy (appellant) appeals from his bench trial
conviction for driving while intoxicated, his third such offense
in ten years. On appeal, he contends the Commonwealth failed to
lay a sufficient foundation for the admission of hospital
records showing his blood alcohol concentration. We hold the
records were admissible under the Shopbook Rule, and we affirm
appellant's conviction. 1
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
The Commonwealth offered expert testimony to establish the
effect of appellant's blood alcohol concentration on his ability
to drive and did not rely on the statutory presumption of
intoxication. On appeal, appellant challenges only the
admissibility of the test result and not the sufficiency of the
evidence to prove he was intoxicated.
"On factual issues relating to the admissibility of
evidence, the burden of persuasion is proof by a preponderance
of the evidence." Rabeiro v. Commonwealth, 10 Va. App. 61,
64-65, 389 S.E.2d 731, 733 (1990). "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).
"Under the modern Shopbook Rule, . . . verified regular
entries may be admitted in evidence without requiring proof from
the original observers or record keepers." Ford Motor Co. v.
Phelps, 239 Va. 272, 275, 389 S.E.2d 454, 457 (1990). Pursuant
to this rule,
practical necessity requires the admission
of written factual evidence based on
considerations other than the personal
knowledge of the recorder, provided there is
a circumstantial guarantee of
trustworthiness. . . . The trustworthiness
or reliability of the records is guaranteed
by the regularity of their preparation and
the fact that the records are relied upon in
the transaction of business by the person[s]
. . . for [whom] they are kept.
"Automatic" Sprinkler Corp. of America v. Coley & Peterson,
Inc., 219 Va. 781, 792-93, 250 S.E.2d 765, 773 (1979).
Thus, "an entry made by one person in the regular course of
business, recording an oral or written report made to that
person by others in the regular course of business, of a
transaction within the personal knowledge of such latter persons
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is admissible" if verified by the testimony of (1) the person
making the entry, (2) a superior, Phelps, 239 Va. at 276, 389
S.E.2d at 457, or (3) some other person with official "access to
[the] records" and "knowledge of how the . . . records were
maintained in the ordinary course of . . . business," Sparks v.
Commonwealth, 24 Va. App. 279, 283-84, 482 S.E.2d 69, 71 (1997).
Here, the evidence, viewed in the light most favorable to
the Commonwealth, supported the trial court's ruling that
Cecelia Owen was a person with official access to appellant's
hospital records and knowledge that the records were maintained
in the ordinary course of the hospital's business. Owen was the
manager of health information on medical records for Halifax
Regional Hospital, and as part of her official duties, "in the
regular course of business," she maintained "the official
hospital records" of each patient's course of treatment. She
identified Commonwealth's Exhibit 9 as a true copy of the
medical records showing treatment rendered appellant on August
29, 1999. She confirmed that the records were "generated while
the treatment [was] actually progressing" by "the people that
actually render[ed] the care."
Because the evidence proved that "the document[s] came from
the proper custodian, . . . [were] record[s] kept in the
ordinary course of business, . . . [were] made contemporaneously
with the event by persons having the duty to keep a true record,
and . . . [were] relied upon by those for whom [they were]
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prepared," it provided a "sufficient foundation for admission of
the [records] into evidence." Avocet Dev. Corp. v. McLean Bank,
234 Va. 658, 667, 364 S.E.2d 757, 762 (1988). Contrary to the
assertions of appellant and the dissent, the Shopbook Rule did
not require that Owen have personal knowledge of the procedures
hospital staff followed in taking or analyzing appellant's
blood. It required only that she had knowledge of the
procedures for maintaining the records themselves. The Rule
also did not require that Owen be able to identify the person
who made the entry. See id.; Charles E. Friend, The Law of
Evidence in Virginia § 18-15, at 688 (5th ed. 1999) ("[A]
business record that otherwise satisfies the [shopbook] rule's
requirements is admissible even though the entrant's identity is
unknown."). Owen's lack of personal knowledge regarding the
hospital lab's procedures for taking and analyzing blood and the
identity of the person who made the entry "'affect[ed] . . . not
their admissibility . . . but their credibility.'" Sparks, 24
Va. App. at 283, 482 S.E.2d at 71 (quoting French v. Virginian
Ry. Co., 121 Va. 383, 387, 93 S.E. 585, 586 (1917)).
Thus, we hold the trial court did not abuse its discretion
in admitting into evidence verified hospital records indicating
appellant's blood alcohol content shortly after his automobile
accident, and we affirm appellant's conviction.
Affirmed.
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Benton, J., dissenting.
The issue of the admissibility of the hospital's medical
record is governed by the following principles:
Under the modern Shopbook Rule, adopted
in Virginia as a recognized exception to the
hearsay rule, verified regular entries may
be admitted in evidence without requiring
proof from the original observers or record
keepers. Generally, this exception has been
restricted to facts or events within the
personal knowledge and observation of the
recorder to which the recorder could testify
if called as a witness. But the general
application of the exception is not
all-inclusive. We have approved a
qualification to the principle and have held
that an entry made by one person in the
regular course of business, recording an
oral or written report made to that person
by others in the regular course of business,
of a transaction within the personal
knowledge of such latter persons is
admissible. The entry must be verified by
testimony of the former person, or of a
superior who testifies to the regular course
of business.
Ford Motor Co. v. Phelps, 239 Va. 272, 275-76, 389 S.E.2d 454,
457 (1990) (citation omitted) (emphasis added).
The Supreme Court has emphasized that the Shopbook Rule
"deals with records made, and not merely kept, in the regular
course of business." Id. at 276, 389 S.E.2d at 457. This
limitation flows from the principle that "[t]he trustworthiness
or reliability of the records is guaranteed by the regularity of
their preparation and the fact that the records are relied upon
in the transaction of business by the person or entities for
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which they are kept." "Automatic" Sprinkler Corp. v. Coley &
Peterson, 219 Va. 781, 793, 250 S.E.2d 765, 773 (1979) (emphasis
added). Therefore, to establish the admissibility of records
under the Rule, the evidence must prove more than that records
are kept in the ordinary course of business.
After the Commonwealth offered the hospital record as
evidence, Guy's attorney objected to its admission. The trial
judge then permitted Guy's attorney to voir dire the testimonial
sponsor of the medical record. On voir dire, she testified as
follows:
Q Do you have any idea who made these
entries?
A The –-
Q Any of them?
A Other than reading the names, no.
Q You don't know that the person who
actually made the observation of anything
like ethanol or anything else, you don't
know whether that person is the person that
made the entry onto the form, the lab tech,
the doctor, the nurse, you have no idea who
wrote these things down?
A All I can do is go by the document. I
was not there.
Before the trial judge admitted the record in evidence, the
witness further testified as follows:
Q You don't know who wrote anything on this
paper, on the record?
A Other than reading the signature, no.
Q You didn't see anybody do it?
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A No.
Q Okay. All right. And your job is
strictly maintenance of the records?
A Yes, sir.
Q Is that correct?
A Yes.
Q All right.
* * * * * * *
Q Whose signature appears or name appears
on the blood test results?
A I don't believe there's a name on it.
It's a code number in the computer system.
Q And do you recognize that name or number?
A No, I do not. I do not have access to
that information.
Q I see. And is there a code number on it.
A Yes. There is a code number and initials
of the person who knows, that would be
maintained by the lab.
Q All right.
* * * * * * *
Q What is that code number? Actually the
number doesn't matter to me. You keep track
of these things by code number?
A Not in all cases, but I don't know how
the lab does it. Apparently that's the way
they do it.
Q You are not sure how the lab works?
A No.
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Q Is there a set of initials on the
document that you have that would indicate
who's responsible for any of this stuff, or
you just don't know? Do you know what those
initials would mean?
A No.
The deficiency in the foundation for admitting the evidence
is clearly established by this testimony. The testimony
establishes only that this is a record the witness kept in her
employment. She did not know who made the entries, did not
recognize the code or the meaning of the code on the record, and
did not know the procedures of the laboratory where the record
was generated. This is not a case in which "[t]he [record]
entry [was] verified by testimony of the . . . person [making
the entry], or of a superior who testifies to the regular course
of business." Phelps, 239 Va. at 276, 389 S.E.2d at 457. It
also is not a case such as Sparks v. Commonwealth, 24 Va. App.
279, 482 S.E.2d 69 (1997), where the issue was "whether the
bank's vice-president, who had general supervisory authority
over bank personnel but no direct supervision over the persons
responsible for preparing or maintaining the bank's records, was
a person who could authenticate the bank's records into
evidence." Id. at 281, 482 S.E.2d at 70. There, the bank's
vice-president testified extensively about the manner in which
the bank's records were prepared, maintained, and kept. See id.
at 283-84, 482 S.E.2d at 71.
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The testimony in this record fails to establish the
foundation for admitting the record under the Shopbook Rule.
Although the witness in this case was the manager of the
records, unlike the witness in Sparks, she knew nothing about
the procedures the other departments followed. Her testimony
was deficient regarding the procedures the hospital followed in
the preparation or making of the records. Her testimony merely
established that the records are "kept," which is an
insufficient foundation. Phelps, 239 Va. at 276, 389 S.E.2d at
457.
The evidence fails to establish that the record admitted
into evidence was "'made contemporaneously with the event by
persons having the duty to keep a true record.'" Frank Shop,
Inc. v. Crown Cent. Petroleum Corp., 261 Va. 169, 175-76, 540
S.E.2d 897, 901 (2001) (citation omitted). Citing Kent
Sinclair, Joseph C. Kearfoot, Paul F. Sheridan, Edward J.
Imwinkelreid, Virginia Evidentiary Foundations § 9.4(B) (1998),
the Commonwealth agrees that it
was required to establish: (1) the record
was prepared by a person with a business
relationship with the hospital; (2) the
informant, i.e., the ultimate source of the
report, had a business duty to report the
information; (3) the informant had personal
knowledge of the facts or events reported;
(4) the written report was prepared
contemporaneously with the facts or events;
(5) it was a routine practice of the
hospital to prepare such reports; (6) the
report was reduced to written form; (7) the
report was made in the regular course of
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business; and (8) the entry was of an act,
transaction, occurrence, or event.
Its proof failed to do so.
For these reasons, I would hold that the Commonwealth
failed to establish a proper foundation for the admission of the
medical record under the Shopbook Rule. Accordingly, I would
reverse the conviction.
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