Dorsey v. State
| Decision Date | 30 March 2009 |
| Docket Number | No. 2993, September Term, 2007.,2993, September Term, 2007. |
| Citation | 968 A.2d 654,185 Md. App. 82 |
| Parties | Theodore DORSEY v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Sara Page Pritzlaff (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, for Appellee.
Panel: DAVIS, HOLLANDER, MELANIE M. SHAW-GETER (Specially assigned), JJ.
Following a trial in September 2007, a jury sitting in the Circuit Court for Frederick County convicted Theodore Randolph Dorsey, appellant, of second degree arson, in violation of Maryland Code (2002, 2006 Supp.), § 6-103 of the Criminal Law Article ("C.L."). The conviction arose from an automobile fire that occurred on September 2, 2006, involving a vehicle that belonged to appellant's girlfriend, Elizabeth Anderson.1
On appeal, appellant focuses on two issues: the jury deliberations, which were the subject of his unsuccessful motion for new trial, and the admission of his medical records. Dorsey asks:
1. Whether a new trial should be ordered because jurors disobeyed explicit jury instructions and discussed the defendant's refusal to testify in his own defense[.]
2. Whether the lower court erred by admitting into evidence Mr. Dorsey's confidential medical records when the State obtained these records in violation of both Maryland's Confidential Medical Records Act, and Mr. Dorsey's constitutional privacy rights[.]
For the reasons set forth below, we shall affirm the judgment of conviction.
In September 2006, Dorsey was a deputy sheriff who had been employed for fifteen years in the Frederick County Sheriff's Office; Anderson was a police officer in the Brunswick Police Department. They met for dinner on September 2, 2006, at a restaurant in Frederick. After dinner, Anderson left her car at the restaurant, because she had been drinking; appellant drove her home. Late that night, Anderson's car was set afire, at a location approximately six to ten minutes from the restaurant. State Deputy Fire Marshal K. Arthur McGhee determined that the fire was an arson. No fingerprints, footprints, tire tracks, gasoline cans, or other physical evidence linked appellant to the scene.
At trial, McGhee testified as an expert in the cause of fires and fire investigation. Moreover, he testified that he has been an emergency medical technician since 1981, and had seen burn injuries on "[t]oo many [occasions] to count." McGhee questioned appellant about the fire on September 5, 2006. Appellant told McGhee that, after he dropped off Anderson, he went to several bars in Harrisburg with a friend, Dale Williams, and got into a fight. During the altercation, Dorsey "got hit in the face with a bottle." He explained that the bottle "broke [and] cut his face."
McGhee recalled that, at the time of questioning, appellant had "four inch by four inch medical gauze taped to the [left] side of his face and his left hand and wrist area [were] covered in gauze." He stated:
While [appellant] was filling out the statement and was talking to me, he was sitting on my left at a, just like a dining room table and he was filling out the form and he would have to reach up and try to put—this bandage kept, as he was talking would—it wasn't put on very well. It was kind of taped on and it kept trying to come off his face and it would stick and he'd put it back. And then I noticed it was a like red and there was, I could see what looked like skin, um, that had, like the first layer of the epidermis had started to come off. It looked like skin hanging. I, I wasn't exactly sure, but that's what it looked like. And then I noticed on the gauze that he had on his hand, it didn't cover every inch of his hand. I mean I could see the web area between his thumb and his finger, his index finger on his left hand, the, the epidermis, the skin was coming off, which looked like a burn.
The colloquy continued:
The court received into evidence photographs of the injuries to appellant's face and hands, which were taken on September 15, 2006. Under one of the photographs, McGhee had written: "Suspect'e [sic] right hand (apperars [sic] to be a burn injury)." Under another he wrote: "Suspect's injury to left hand (apperars [sic] to be burn injury)."
Dale Williams testified that he saw appellant on the morning of September 2, 2006, around noon on September 3, 2006, and at some point after September 3, 2006. Williams recalled that appellant had no injuries on September 2, 2006. But, on September 3, 2006, Williams "saw bandages" on appellant's "face and hands." He described appellant's skin as "kind of pinkish."
John Allen Turner, a constable with the Frederick County Sheriff's Office who had known appellant for about seven years, testified that he saw appellant at Advanced Urgent Care in Frederick on September 8, 2006. The following is relevant:
Turner added that, when he asked appellant what happened, appellant stated "that he got in a fight with a grill and that was it."
On cross-examination, Turner agreed that in his written statement he said he "noticed what appeared to be burns." On redirect examination, the prosecutor asked Turner about "any further comment [he made] as to the injuries to Mr. Dorsey." The following ensued:
The State sought to offer appellant's medical records from Advanced Urgent Care, dated September 8, 2006.3 Defense counsel objected, and the court heard argument regarding the admissibility of the evidence, outside the presence of the jury. Defense counsel argued:
[W]hat we really have is evidence that should never have gotten into the prosecution's hands in the first place if it wasn't properly subpoenaed and Urgent Care released it without the consent of Mr. Dorsey then he can't testify to it and that's why I'm going to move to preclude him from being able to do so.
Moreover, defense counsel insisted that the State had to prove that it had written procedures in place when it issued the subpoena. Relying on the Maryland Confidentiality of Medical Records Act (the "Act"), Md.Code (2005 Repl.Vol., 2007 Supp.), § 4-301 to 4-309 of the Health-General Article ("H.G."), he asserted: "[T]he plain reading of the statute would require that before you enter those medical records [the State] has to produce written guidelines of [the] office's procedures and unless that's met I don't think that that comes in." As to compliance with the Health Insurance Portability and Accountability Act, Pub. Law 104-191, 110 Stat. 1936 (1996) ("HIPAA"), defense counsel argued: "HIPAA is, is a quagmire of information to try to, to figure out how to comply with it...." But, he maintained that "the whole purpose of that reform was to enhance the confidentiality of medical records...."
The State countered that, under H.G. § 4-306, appellant's authorization was not required for disclosure. The prosecutor also claimed that the subpoena was issued pursuant to § 6-310 of the Public Safety Article. See Md.Code (2005, 2007 Supp.), § 6-310 of the Public Safety Article ("P.S.").
The court ruled:
[I]t's clear and there are sections under HIPAA that make it clear that the purpose is to protect confidentiality of patients but is not to prevent disclosure as otherwise authorized by law. So I'm not going to focus on HIPAA.... The records have been disclosed. The records were disclosed by the health care provider pursuant to a subpoena issued under the Public Safety [Article]. The subpoena itself under the Public Safety [Article] did not have the required language under Health General. However, despite that the information came into the possession of the State. It is a, an area where they are, the health care provider is authorized to disclose the records without the permission or without notice to the record-holder.... The only reported case deals with the...
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