Com. v. Copeland

• Decision Date: 19 June 1978
• Citation: 377 N.E.2d 930,375 Mass. 438
• Parties: COMMONWEALTH v. Leonard G. COPELAND.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 930

377 N.E.2d 930

375 Mass. 438

COMMONWEALTH v. Leonard G. COPELAND.

Supreme Judicial Court of Massachusetts,Suffolk.

Argued May 2, 1978.

Decided June 19, 1978.

Fern L. Nesson, Walter Boldys and Dennis J. LaCroix, Boston, for defendant.

Daniel Englestein, D. Lloyd Macdonald, Thomas J. Carey, Jr., and Dennis J. Curran, Asst. Dist. Attys., for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, LIACOS and ABRAMS, JJ.

QUIRICO, Justice.

In February, 1976, the defendant was tried and convicted in the Superior Court on three indictments alleging that he had committed armed robberies against three persons in a single incident on October 16, 1975. ¹ The defendant appealed to the Appeals Court, pursuant to G.L. c. 278, §§ 33A-33G, and argued assignments of error based on the trial judge's admission in evidence of "mug shot" photographs and the exclusion from evidence of certain hospital records. The Appeals Court affirmed the judgments of conviction by a rescript opinion. Commonwealth v. Copeland, --- Mass.App. --- ^a, 368 N.E.2d 823 (1977). The defendant applied for further appellate review by this court and we granted the request by our order of February 1, 1978, but limited it to the question of admissibility of the hospital records. For the reasons stated below, we hold that the judge did not abuse his discretion in excluding the records from the evidence, and we affirm the judgments of conviction.

At a bench conference, after the Commonwealth had rested its case, the defendant sought to introduce copies of three hospital records from University Hospital, Inc. (hospital), in Boston, relating to the treatment of a gunshot wound in the defendant's right shoulder. The first record, dated October 6, 1975, indicated that approximately two weeks earlier the defendant had been shot in the right shoulder, resulting in an entrance and exit wound, and that as a consequence, he had been hospitalized in another hospital for five days. He complained of pain at the wound site and the wound was "oozing purulent looking material." The record indicates that the defendant was examined as an outpatient, with a diagnosis of a gunshot wound to the shoulder, after which he was discharged. The second record, dated October 8, 1975, indicated the presence of "puss infection" and "purulent drainage" of the gunshot wound which was "granulating but still mildly purulent," and there was (n)o marked drainage or swelling. " The record indicated further that the wound was cleaned, irrigated, and dressed. The third record, dated October 17, 1975, the day after the robbery, noted with regard to the wound, that there was "some granulation but persistent purulent drainage. No swelling or cellulitis."

The defendant offered these records in an attempt to prove an impairment of his right arm, which would have been inconsistent with physical activities attributed to him by the robbery victims. They testified that during the course of the robbery the defendant carried a shotgun while pushing and shoving them, and that he also searched them, pushed aside a wine rack, and scooped up money from a cash register. Apparently, the defendant sought to show by the hospital records that he could not have used his arm in the manner described and thereby to cast doubt on the victim's identification of him. The judge, however, excluded the records from evidence, stating that there was no indication in them of "any disability in respect of an impairment of the use of the right arm."

The Appeals Court, in affirming the judgments of conviction, held that the purpose for which the defendant sought to introduce the hospital records ² was legitimate, and, "if material to that purpose, the admission of the record was required . . . even though it did not state in so many words that there was an impairment of the arm, the basis for exclusion given by the trial judge" (citations omitted). Commonwealth v. Copeland, supra. However, the court held further that here "there was no lay testimony as to the condition of the defendant's arm, of which the record might have been corroborative; nor was there any medical expert prepared to testify on the basis of or in addition to the record. An argument to the jury based on the bare hospital record would in this case have been only an appeal to speculation and conjecture. Apart from such speculation, the evidentiary weight of the record was so slight as to make its exclusion insignificant." Id.

Although we hold that the judge's exclusion of the hospital records was proper, we expressly disagree with the import of the Appeals Court's reasoning noted above. Inasmuch as that court's language can be read to imply that hospital records of the type at issue are admissible only in corroboration of lay or expert testimony of the patient's physical condition, we think it erroneous.

General Laws c. 233, § 79, as amended through St.1974, c. 225, provides in part: "Records kept by hospitals, dispensaries or clinics, and sanatoria under (G.L. c. 111, § 70 ³ ) shall be admissible . . . as evidence . . . so far as such records relate to the treatment and medical history of such cases and the court may, in its discretion, admit copies of such records, if certified by the persons in custody thereof to be true and complete." The statute in effect provides an exception to the hearsay rule, allowing hospital records to be admitted to prove the truth of the facts contained therein, in so far as those facts pertain to treatment and medical history. Commonwealth v. Franks, 359 Mass. 577, 579-580, 270 N.E.2d 837 (1971), and cases cited. K. B. Hughes, Evidence §§ 598-600 (1961). See Commonwealth v. Rembiszewski,363 Mass. 311, 318, 293 N.E.2d 919 (1973); Commonwealth v....