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Opinions of The and the Court of Appeals To be used in
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CPS Commonwealth
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Commonwealth v. Russo, 30 Mass.App.Ct.
923 (1991)
Appeals Court of Massachusetts, Middlesex.
No. 90‑P‑714.
Argued
Decided
Barbara C. Johnson, Newtonville,
for defendant.
Miranda S. Jones, Asst. Dist. Atty., for Com.
Before KASS, KAPLAN and GILLERMAN, JJ.
RESCRIPT.
Taking the
evidence in a light most favorable to the Commonwealth, the jury of six that
convicted the defendant Russo of operating a motor vehicle while under the
influence of intoxicating liquor and driving to endanger, could have found the
following. Russo, when he collided
virtually head‑on with another car at
[30 Mass.App.Ct.
924] In his appeal, Russo challenges
four rulings of the District Court judge who presided over the jury trial: (1) the denial of a motion to dismiss by
reason of the failure of the police to serve Russo promptly with a citation of motor vehicle law infraction; (2) denial of a motion to strike hospital
records; (3) limiting the scope of cross‑examination
bearing on the bias of a witness; and
(4) denial of a motion for a required finding of not guilty and denial of a
motion to set aside the jury verdict. We
affirm.
[1] (1) Compliance with G.L.
c. 90C, § 2, which requires a copy of the citation of a motor vehicle offense
to be delivered to the accused at the time and place of the violation. About one hour after the accident, two
officers, one of them bearing a citation to Russo of his motor vehicle law
violations (see G.L. c. 90C, § 1), came to the
emergency room at Newton‑Wellesley Hospital. They found Russo lying on a hospital gurney
(a wheeled stretcher), eyes open and apparently aware. The officers explained the charges on the
citation form to Russo and tucked the copy for the offender (FN1) in some of
Russo's clothing, which had been folded and placed on a shelf underneath the
gurney platform on which he was stretched out.
Russo said nothing but, according to one of the officers, "he
looked at us and nodded."
When
circumstances do not permit giving the offender a citation at the time and
place of violation, the police must draw up the citation "as soon as
possible after such violation" and mail or deliver it to the
defendant. G.L.
c. 90C, § 2, as appearing in St.1985, c. 794, § 3. The defendant does not deny that the accident
scene was sufficiently chaotic (the driver of the other car was trapped in his
vehicle) and concern for the injuries of the accident victims sufficiently
paramount that handing out citations was not, reasonably, a first order of
business. What the defendant quarrels
with is whether the police complied with the delivery prescription of the
statute when they presented the citation to Russo in the hospital emergency
room.
This
aspect of the case is controlled by
Commonwealth v. Perry, 15 Mass.App.Ct. 281, 444
N.E.2d 1319 (1983). We there observed
that the dual objectives of G.L. c. 90C, § 2, are to
prevent corrupt manipulation of traffic tickets (i.e., a "no fix"
system) and early notice to the offender about the violation being charged. Id.
at 283. See also Commonwealth v. Pappas, 384 Mass. 428, 431, 425 N.E.2d 323 (1981);
Commonwealth v. Provost, 12 Mass.App.Ct.
479, 483, 426 N.E.2d 453 (1983). Placing
the citation with the defendant's clothes on the hospital gurney satisfied the
first objective (copies were presumably filed with the chief, the clerk‑magistrate
and so forth). As to the notice
component, the judge who ruled on the motion to dismiss could believe that the
police [30 Mass.App.Ct.
925] officers had made the defendant
aware of the charges against him and that the citation had been delivered. In any event, a criminal complaint issued
within a month, so little time was lost before Russo had documentary notice of
the charges against him. (FN2)
The
requirements of § 2 are flexibly applied when the offense, as here, is serious.
Commonwealth v. Pappas, 384 Mass. at 431‑432, 425 N.E.2d 323.
Commonwealth v. Perry, 15 Mass.App.Ct. at
284, 444 N.E.2d 1319. Commonwealth v. Barbuto,
22 Mass.App.Ct. 941, 943‑944, 494 N.E.2d 33
(1986). The goals of the statute were
"not thwarted" and "flaws of detail in its observance can be
overlooked." Perry, supra 15 Mass.App.Ct.
at 284, 444 N.E.2d 1319. An
"important feature of the statutory arrangements was [not] flouted through
sloth or sheer inattention." Id. at 283, 444 N.E.2d 1319. Contrast
Commonwealth v. Marchand, 18 Mass.App.Ct.
932, 933, 465 N.E.2d 1227 (1984). If
there was a violation of the statute at all‑‑by no means a
compelled conclusion on the evidence‑‑it was in the forgivable
category.
[2][3] 2. Admissibility of the blood test. Blood was drawn from Russo by medical
personnel at the hospital in connection with his treatment. The police did not request or direct testing
of the defendant's blood. In that
setting, drawing and testing the blood did not implicate the protection against
unreasonable search and seizure of the Fourth Amendment to the United States
Constitution. Extraction of blood
without a person's consent may constitute an unreasonable search, Schmerber v.
California, 384 U.S. 757, 767, 86 S.Ct. 1826,
1834, 16 L.Ed.2d 908 (1966), but only when it is done at government direction.
District Attorney for the Plymouth Dist. v. Coffey, 386 Mass. 218,
220‑221, 434 N.E.2d 1276 (1982). Commonwealth v. Storella,
6 Mass.App.Ct. 310, 314‑315, 375 N.E.2d 348
(1978). Here, even if one were to assume
that the blood sample had been given involuntarily, there was no government
direction. Contrast Commonwealth v. Angivoni, 383 Mass. 30,
32, 417 N.E.2d 422 (1981), in which police requested that blood be drawn to
test for alcohol level.
[4] Russo
next challenges admission of so much of his medical records from Newton‑Wellesley
Hospital, under G.L. c. 233, § 79, as disclosed his
high blood alcohol level, on the ground that the prosecution had not
established that his blood had been drawn and tested in connection with his
diagnosis and treatment. In Commonwealth v. Sargent,
24 Mass.App.Ct. 657, 660‑661, 512 N.E.2d 285
(1987), we held that there need be no showing that blood tests are related to
specific treatment or diagnostic inquiry if there was evidence that blood tests
are standard procedure in the hospital for the sort of medical problem
presented. See also Commonwealth v. Riley, 22 Mass.App.Ct.
698, 700‑701, 497 N.E.2d 651 (1986).
Two physicians testified in Sargent that blood tests were standard procedure and
explained why. Russo attempts to avoid
the bearing of the Sargent
case by pointing to the absence in his case of similar testimony. What Russo asserts is missing, however, is in
the [30 Mass.App.Ct.
926] hospital record itself. Examination of it reveals a battery of blood
tests, identified in the record as "routine chemistry" including
blood type (in the event transfusion were required), blood gases, antibody screens
(should there be wound infection), and blood cultures. There are urine tests and an
electrocardiogram. It is obvious that
Russo received a full "work up."
Russo's
counsel also claims to have been surprised by the government's offer of his
hospital record. Whether an objection on
that ground was made is less than clear from the record. The principal controversy at trial seemed to
be over whether the record should go in evidence in its entirety, be sanitized
to some degree, or be admitted in part.
In any event, the contention is puzzling. Since the defendant had been in the hospital,
his lawyer would have known there was a medical record and the record was as
accessible to defense counsel as it was to the government.
[5][6][7]
This does not exhaust the arguments by which the defendant resists the force of
the medical record evidence. He argues
that the chain of custody of the blood sample and the identity of the person
performing the test were not established, thereby undermining the reliability
of the record. Requiring confirmatory
evidence of that sort, however, would subvert the purpose of G.L. c. 233, § 79:
to spare hospital personnel the burden of spending time in court to
verify what is recorded as matter of professional routine and to accord a
presumption of reliability to records whose accuracy is relied upon in the
treatment of patients. Bouchie v. Murray,
376 Mass. 524, 527‑528, 381 N.E.2d 1295 (1978). Still working the same vein, the defendant
challenges the qualifications of a State chemist to interpret the blood test
results. The qualification of a witness
to testify as an expert rests in the sound discretion of the judge.
Commonwealth v. Haas, 373 Mass. 545, 563, 369 N.E.2d 692 (1977).
Commonwealth v. Schulze, 14 Mass.App.Ct.
343, 347‑348, 439 N.E.2d 826 (1982).
That discretion was nowise abused.
The government's witness had worked for five years in the toxicology
laboratory of the Department of Public Safety.
There was no serious doubt of his ability to translate for lay persons
the technical language within the record.
[8][9] 3. Limitation on cross‑examination as to
bias. During cross‑examination
of Michael Joyce, the owner of the other car in the collision, defense counsel
asked Joyce if his cousin, Daniel Mahon, had filed a suit against Russo for
personal injuries sustained in the accident.
Joyce had entrusted the driving to Mahon because Mahon had ingested less
alcohol than he. The judge excluded the
question. There was no error. Parties may have reasonable cross‑examination
to demonstrate the bias of a witness giving evidence. Commonwealth v. Koulouris,
406 Mass. 281, 285, 547 N.E.2d 916 (1989).
Such cross‑examination was allowed in this case. Defense counsel explored the friendly
relationship between Joyce and Mahon.
When the tendency of evidence to show bias becomes attenuated, the trial
judge may intervene. Commonwealth v. Gonzalez, 23 Mass.App.Ct. 913, 914, 500 N.E.2d 287 (1986).
[10] 4. Sufficiency of the evidence. Extended discussion is not necessary to
dispose of the contention that there was insufficient evidence to support the [30 Mass.App.Ct.
927] verdicts and that the defendant
was entitled to required findings of not guilty or, failing that, to a setting
aside of the verdicts. We have set out
facts the jury could have found at the beginning of this opinion. Among the items of evidence which warranted
those findings was evidence as to the position of the cars, Joyce's testimony
that the Russo vehicle was on the wrong side of the road, observations of the police
officers, the odor of liquor on Russo's breath, and the blood test. This evidence easily satisfied the test of Commonwealth v. Latimore,
378 Mass. 671, 677‑678, 393 N.E.2d 370 (1979).
Judgments affirmed.
(FN1.) The citations are bound in a citation
book and consecutively numbered. Each
citation has multiple copies, one of which is given to the offender, one which
the issuing officer retains, one which the police chief retains, and the
remainder of which are sent to the clerk‑magistrate of the appropriate
District Court. When the violator pays
the prescribed fine or if there is other adjudication (as there was here), a
copy is sent to the Registrar of Motor Vehicles.
(FN2.)
Actually the record is silent as to whether Russo, while at the hospital, found
or had called to his attention by other than the police officers the citation
placed with his clothing. Russo did not
testify.