Opinion
19-P-1205
10-02-2020
COMMONWEALTH v. JOSE A. GUAMAN.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial, the defendant was convicted of assault and battery by means of a dangerous weapon, and assault and battery on a household member, as a result of kicking his wife in the back with a shod foot. The defendant argues on appeal that the trial judge abused his discretion by failing to properly redact his wife's medical records -- in particular, by leaving in the comment, "[t]here is a shoe marked on the back of her right upper chest." For the reasons that follow, we affirm.
Background. On April 16, 2018, the defendant's then twelve year old daughter called 911 from their home to report that her father had been "hurting my mom . . . kicking her in the back . . . he was wearing shoes but he did not have a weapon." She had removed herself from the situation to call 911, and along with her three other siblings, had sequestered herself in a nearby room while the argument continued.
At trial, Lowell Police Officer Deangelo testified that she arrived at the scene approximately three minutes after the 911 call. Officer Deangelo let herself into the residence via an unlocked door. She located the defendant and victim upstairs in their bedroom. The defendant was standing over the victim, who was lying on the floor, crying, covered with a blanket. The defendant told the officer that the victim was sleeping.
The victim was transported to Lowell General Hospital for evaluation. On page five of the medical report, doctors noted that she had reported being kicked in the back, and that the top of her back was "marked." Page nine of the report contained a separate notation: "there is a shoe marked on the back of her right upper chest." No other injuries were observed, and the marked region on her back was not tender to the touch.
Prior to trial, the defendant moved in limine to have various portions of the medical records redacted or excluded. Some of the redactions were accepted by the court, but the records were otherwise to be admitted. At trial, the defendant moved for reconsideration of the court's ruling, arguing that further redactions were needed. The defendant specifically identified page nine, where a physician had reported the victim's back was "shoe marked."
The jury convicted the defendant of assault and battery by means of a dangerous weapon (shod foot), and assault and battery on a household member. The defendant appeals.
Discussion. 1. Abuse of discretion. The defendant's sole argument is that the trial judge abused his discretion by failing to redact the statement from the medical records that the victim's back was "shoe marked." The defendant argues that this information was not related to her medical treatment, that it stated a conclusion rather than a fact, and that the statement concerned the ultimate question for the fact finder.
General Laws c. 233, § 79, permits the introduction of certified hospital records, which "may be admitted by the court, in its discretion . . . so far as such records relate to the treatment and medical history of such cases . . . but nothing therein contained shall be admissible as evidence which has reference to the question of liability." G. L. c. 233, § 79. "The statute has long been construed to permit the admission of a record that relates directly and primarily to the treatment and medical history of the patient, 'even though incidentally the facts recorded may have some bearing on the question of liability.'" Commonwealth v. McGann, 484 Mass. 312, 320 (2020), quoting Commonwealth v. Torres, 479 Mass. 641, 653 (2018). See Commonwealth v. DiMonte, 427 Mass. 233, 242 (1998), quoting Commonwealth v. Baldwin, 24 Mass. App. Ct. 200, 202 (1987) (distinguishing "'a conclusory fact central to the jury's inquiry' from 'physical observations from which inculpatory inferences flow'"). See also Commonwealth v. Dube, 413 Mass. 570, 573-574 (1992). Compare Commonwealth v. Baldwin, 24 Mass. App. Ct. 200, 202 (1987) (error to admit unqualified statement in hospital record of "diagnosis" of "sexual molestation").
Evidentiary rulings are within the sound discretion of the trial judge, and will only be overturned for abuse of discretion. Commonwealth v. Cole, 473 Mass. 317, 324 (2015). The medical records statute provides an express exception to the hearsay rules, and has been interpreted to allow the admission of records that incidentally bear on the question of guilt, as long as those records relate to the patient's medical treatment. McGann, 484 Mass. at 320; DiMonte, 427 Mass. at 242; Dube, 413 Mass. at 573. Just this year in McGann, for example, the Supreme Judicial Court upheld the admission of a statement by the victim contained in a medical record; the victim reported that the defendant "repeatedly beat him about the head/face and bit him several times in the arms and also came after him with [a] steak knife." McGann, supra at 319. McGann thus confirms that a victim's statements attributing the cause of an injury to an assailant's use of a weapon are admissible, even if the statements embrace the issue whether the defendant used a dangerous weapon. See id. at 319-320.
The defendant's name was redacted at trial, but not the statements about what she did.
Here, the statement "shoe marked on the back of her right upper chest" contains a direct observation by a treating medical professional. This statement "relates to the [medical] treatment," as it was appropriate for the physician to document the nature and location of the victim's injuries, and the possible cause. Such information was particularly relevant here, where it is evident that the doctors were concerned about possible head injury. The statement that the mark came from a "shoe" could have come from the physician's observation of the mark itself. See DiMonte, 427 Mass. at 242. However, even if the statement were based on the victim's report of being kicked with a shoe, and not the physical observation of the medical professional, it is admissible under the same rationale as in DiMonte and McGann, as it is a fact-specific reference to the reported cause of injury. See McGann, 484 Mass. at 320; DiMonte, supra. We accordingly perceive no error in the admission of the statement "shoe marked," where the defendant is charged with assault and battery by means of a dangerous weapon. See Dube, 413 Mass. at 573.
The defendant cites Baldwin as support for his argument. However, the statement in this case is not analogous to the statement in Baldwin. See 24 Mass. App. Ct. at 202. In that case, the medical professional's diagnosis of "sexual molestation" was conclusory and not based on any physical observations, as the victim refused to be evaluated. Id. See DiMonte, 427 Mass. at 241-242 (distinguishing inadmissible conclusory statements in medical records that victim was "assaulted" from admissible fact-specific references to reported cause of injury such as "punched with closed fist").
Judgments affirmed.
By the Court (Vuono, Sullivan & Englander, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: October 2, 2020.