Baber v. State

• Decision Date: 31 August 2000
• Docket Number: No. SC96010.,SC96010.
• Citation: 775 So.2d 258
• Parties: James C. BABER, III, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

775 So.2d 258

James C. BABER, III, Petitioner, v. STATE of Florida, Respondent.

No. SC96010.

Supreme Court of Florida.

August 31, 2000.

Rehearing Denied January 4, 2001.

Bruce Rogow and Beverly A. Pohl of Bruce S. Rogow, P.A., Fort Lauderdale, Florida, for Petitioner.

Robert A. Butterworth, Attorney General, Celia Terenzio, Assistant Attorney General, Bureau Chief, and Robert R. Wheeler, Assistant Attorney General, West Palm Beach, Florida, for Respondent.

John C. Fisher, Bartow, Florida, for Florida Association of Criminal Defense Lawyers, Amicus Curiae.

SHAW, J.

We have for review a decision on the following question certified to be of great public importance:

DOES LOVE V. GARCIA, 634 So.2d 158 (Fla.1994) APPLY IN CRIMINAL PROSECUTIONS WHERE BLOOD ALCOHOL TEST RESULTS ARE OFFERED AS PROOF TO ESTABLISH AN ELEMENT OF THE OFFENSE, IF THE BLOOD ALCOHOL TESTS WERE ADMINISTERED BY HOSPITAL PERSONNEL FOR MEDICAL TREATMENT PURPOSES?

Baber v. State, 738 So.2d 379, 382 (Fla. 4th DCA 1999). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We answer the certified question affirmatively and approve the district court's decision.

The State charged and the jury convicted petitioner of DUI manslaughter. The dispositive facts are as follows:

In the early evening of November 11, 1995, [petitioner] was observed driving erratically in a northerly direction on Military Trail in Palm Beach County.

He then turned left to go west, but went into the east bound lane of 45th Street. He struck an oncoming vehicle, killing the driver and injuring the passenger.

[Petitioner], who was seriously injured, was taken to St. Mary's Hospital in West Palm Beach where his blood was tested for alcohol content on the hospital's DuPont ACA IV clinical analyzer. [Petitioner] represents in his brief, and the parties agreed at oral argument, that this was done for purposes of medical treatment. This test, which uses blood serum, reflected a blood alcohol level of .274 at the time of the accident. The blood serum test result was then converted to a whole blood result reflecting a blood alcohol level of from .23 to .25.

. . . .

In order to introduce the blood alcohol report, the state called the hospital's medical records custodian who laid the necessary foundation under the business record hearsay exception, section 90.803(6)(a), Florida Statutes (1995). The state also called the head of the chemistry department of the hospital who controlled the laboratory. He testified that he had copied [petitioner]'s blood test results from the computer system, described the manner in which the report was prepared, and described how the machine, which the hospital had been using since 1991, determines blood alcohol levels based on blood serum testing. He also explained the daily and weekly maintenance performed on the machine according to the manufacturer's instructions.

Baber v. State, 738 So.2d 379, 380 (Fla. 4th DCA 1999). Petitioner objected to the submission of the record absent testimony from the laboratory technician who performed the test and chain of custody testimony. See id.

On appeal, petitioner raised, among other things, the issue of the admission of the disputed record under Love v. Garcia, 634 So.2d 158 (Fla.1994). The district court observed:

In Love[,] ... the Florida Supreme Court held in a personal injury case that a blood alcohol test report contained in a hospital record was admissible with no testimony other than that of the business record custodian of the hospital qualifying the report as a business record. The court reasoned that if such a report is sufficiently trustworthy to be relied on for medical treatment, it is sufficiently trustworthy to be admissible in evidence as a business record, unless the party opposing the admission can show that it is untrustworthy.

Id. at 380-81. Based on the foregoing, the court concluded that this Court's decision in Love applies in criminal cases and, therefore, the report was properly admitted as a business record through the testimony of the hospital's records custodian. See id. at 382. We agree.

The right of a defendant to confront his or her accusers is a basic constitutional right protected by both the United States and Florida constitutions.¹ The United States Supreme Court has explained:

The primary object of the [Confrontation Clause] was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.

Mattox v. United States, 156 U.S. 237, 242-43, 15 S.Ct. 337, 39 L.Ed. 409 (1895).

The exercise of a defendant's right to confront his or her accusers also implicates the defendant's right to due process since confronting one's accusers is essential to a fair trial. See Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). A defendant's right to notice "and an opportunity to be heard in his defense-a right to his day in court-are basic in our system of jurisprudence; and these rights include... [the] right to examine the witnesses against him." In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 92 L.Ed. 682 (1948), cited in Chambers, 410 U.S. at 294, 93 S.Ct. 1038.²

Federal and Florida courts have recognized, however, that the right to confront one's accusers is not absolute. The Supreme Court has stated that exceptions to the Confrontation Clause are "not ... static, but may be enlarged from time to time if there is no material departure from the reason of the general rule." Snyder v. Massachusetts, 291 U.S. 97, 107, 54 S.Ct. 330, 78 L.Ed. 674 (1934), overruled on other grounds, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). This Court has said that hearsay may be admissible in a criminal trial where the testimony is such that "adversarial testing would add little to its reliability." Conner v. State, 748 So.2d 950, 956 (Fla.1999)(quoting Idaho v. Wright, 497 U.S. 805, 821, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990)).

The statute establishing the admissibility of business records as an exception to the hearsay rule provides, in pertinent part:

(6) RECORDS OF REGULARLY CONDUCTED BUSINESS ACTIVITY.—

(a) A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the sources of information or other circumstances show lack of trustworthiness.

§ 90.803(6)(a), Fla. Stat. (1995). This Court has held that medical records are properly admitted under this exception as long as the evidence satisfies the requirements contained in the subsection. See Love, 634 So.2d at 160. This Court further explained:

Once this predicate is laid, the burden is on the party opposing the introduction to prove the untrustworthiness of the records. If the opposing party is unable to carry this burden, then the record will be allowed into evidence as a business record....

Under the business record exception, the trustworthiness of medical records is presumed. Phillips v. Ficarra, 618 So.2d 312, 313 (Fla. 4th DCA 1993). Such trustworthiness is based on the test's general acceptance in the medical field and the fact that the test in question is relied upon in the scientific discipline involved. Andres v. Gilberti, 592 So.2d 1250, 1252 (Fla. 4th DCA 1992). Actual reliance on the test in each course of treatment is not required.

Love, 634 So.2d at 160.

The Fourth District's application of Love to criminal cases is supported by federal precedent and the majority of states.³ The United States Supreme Court has held that if hearsay is admitted under an exception "firmly rooted" in our jurisprudence, then the "[r]eliability can be inferred without more" and the prosecutor need not prove the unavailability of the declarant. Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). To that end, the Court stated that "business and public records exceptions would seem to be among the safest of the hearsay exceptions." Id. at 66 n. 8, 100 S.Ct. 2531 (quoting J. Broocks Greer, III, Comment, Hearsay, the Confrontation Guarantee and Related Problems, 30 La. L.Rev. 651, 668 (1970)); see White v. Illinois, 502 U.S. 346, 356-57, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992); Bourjaily v. United States, 483 U.S. 171, 183, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987). Federal circuit courts of appeal have held that hospital drug tests may be admitted under the business records exception in criminal cases and that application of the exception in this circumstance does not violate the Confrontation Clause. See United States v. Garnett, 122 F.3d 1016, 1018-19 (11th Cir.1997)(affirming district court's decision to admit drug test results under the business records exception); United States v. Norton, 867 F.2d 1354, 1364 (11th Cir.1989)(holding that business records are admissible in criminal cases under Federal Rule of Evidence 803(6) based on Bourjaily and Roberts); United States v. Baker, 855 F.2d 1353, 1359 (8th Cir.1988)("When made on a routine basis, laboratory analyses of controlled substances are admissible as business records under Federal Rule of Evidence 803(6).").⁴

The majority rule among state courts is that drug or alcohol tests performed in the usual course of business of a hospital are admissible...