Buckler v. Com.

• Decision Date: 17 September 1976
• Parties: Stella Faye BUCKLER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 935

541 S.W.2d 935

Stella Faye BUCKLER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Supreme Court of Kentucky.

Sept. 17, 1976.

Thomas E. Clay, Staff Atty., Jefferson Dist. Public Defender, Louisville, for appellant.

Ed W. Hancock, Atty. Gen., Mary Ann Delaney, Asst. Atty. Gen., Frankfort, for appellee.

CLAYTON, Justice.

Stella Faye Buckler was indicted for the August 17, 1973, murder by suffocation of her two-month-old son, Brian Christopher Buckler. After a first trial resulted in a hung jury, a second jury was empanelled, returning a verdict of guilty and sentencing her to life imprisonment. Of the several assignments of error raised by the appellant, we find the contentions that the trial court erred in excluding her mental hospital records and in excluding expert opinion testimony regarding her mental condition based on those records to be meritorious, and, accordingly, we reverse the judgment of conviction.

At trial, appellant relied on her history of previous mental instability in presenting a defense of not guilty by reason of insanity. The evidence offered indicated she had attempted suicide while a graduate student at Indiana University in August 1971 and had subsequently undergone periodic treatment for mental depression at Our Lady of Peace Hospital in Louisville, Kentucky, being so hospitalized on two separate occasions for periods of approximately one month each for treatments involving the use of electric shock therapy and drugs. Shortly after the birth of her child on June 13, 1973, appellant expressed open hostility toward it and her husband and subsequently phoned him on August 17, 1973, at his place of employment to inform him that the infant was dead. He rushed home to find the baby lying on a bed, partially covered by a pillow. Appellant was arrested at the scene and committed to Central State Hospital (now River Region Hospital), Louisville, for psychiatric observation.

Appellant assigns as error the trial court's ruling that her medical records compiled subsequent to the alleged crime and in the custody and control of the Director of Medical Records at River Region Hospital were inadmissible as evidence by virtue of the hearsay rule. We agree that this evidence was improperly excluded, basing this conclusion on our decision in Moore v. Commonwealth, 92 Ky. 630, 18 S.W. 833 (1892), wherein this court held evidence of the defendant's mental condition subsequent to the commission of crime to be competent on the issue of insanity, and in Whittaker v. Thornberry, 306 Ky. 830, 209 S.W.2d 498 (1948), wherein we held medical records to fall within the coverage of the 'shopbook' exception to be hearsay rule.

Although ordinarily the hearsay rule prevents the introduction of evidence given by persons lacking personal knowledge of the facts, courts have been willing to relax the rule in the interest of justice, thereby developing exceptions to the rule. The two underlying bases traditionally given for any such exception are a necessity for the admission of the evidence in its hearsay form, and a circumstantial guarantee of the trustworthiness of the offered evidence--that is, the presence of something which the law considers a substitute for the oath of the declarant, observation of his demeanor by the jury, and his cross-examination by the party against whom the hearsay is offered. 29 Am.Jur.2d, Evidence, § 496 (1967). The 'necessity' element requires that the person whose assertion is being offered be unavailable to testify or that evidence of the same value cannot not be expected to be obtained from the same or other sources. 5 Wigmore, Evidence, § 1420 (Chadbourn Rev. 1974). In Whittaker v. Thornberry, supra, this court held that when a proper foundation is laid, medical records are admissible into evidence by reason of the 'shopbook' exception to the hearsay rule, which permits the admission as competent evidence of record entries made in the regular course of duty in a business or profession by persons not having knowledge of the facts entered. In Dotye v. Commonwealth, Ky., 289 S.W.2d 206 (1956), we indicated this principle to be applicable to criminal as well as civil proceedings. In Whittaker and later in Bellew v. Commonwealth, Ky., 477 S.W.2d 779 (1972), we quoted approvingly the following from Professor Wigmore in reaching conclusions holding the medical records therein admissible:

' The medical records of patients at a hospital, organized on the usual modern plan, deserve to be placed under the present principle. They should be admissible, either on identification of the original by the keeper, or on offer of a certified or sworn copy. There is a Necessity; the calling of all the individual attendant physicians and nurses who have cooperated to make the record even of a single patient would be a serious interference with convenience of hospital management. There is a Circumstantial Guarantee of Trustworthiness; for the records are made and relied upon the affairs of life and death. Moreover, amidst the day-to-day details of scores of hospital cases, the physicians and nurses can ordinarily recall from actual memory few or none of the specific data entered; they themselves rely upon the record of their own action; hence, to call them to the stand would ordinarily add little or nothing to the information furnished by the record alone. The occasional errors and omissions, occurring in the routine work of a large staff, are no more an obstacle to the general trustworthiness of such records than are the errors of witnesses on the stand. And the power of the Court to summon for examination the members of the recording staff is a sufficient corrective, where it seems to be needed and a bona fide dispute exists.' Wigmore, Evidence, § 1707; Whittaker v. Thornberry, supra, 209 S.W.2d pp. 500--501; Bellew v. Commonwealth, supra, p. 781.

The medical records herein were ruled inadmissible because a proper foundation for their introduction had not been laid. The doctors who originally prepared the reports were not present at trial to testify as to their authenticity, not having been subpoenaed as witnesses. Because of this, the trial court reasoned that appellant had not attempted to obtain the doctors' presence at trial with the requisite 'due diligence' to satisfy the necessity requirement for the admission of hearsay evidence, though appellant's counsel stated in chambers that the whereabouts of the doctors were unknown so that the issuance of...