Durant v. U.S.

• Decision Date: 16 December 1988
• Docket Number: No. 85-1592.,85-1592.
• Citation: 551 A.2d 1318
• Parties: Sherman DURANT, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

551 A.2d 1318

Sherman DURANT, Appellant, v. UNITED STATES, Appellee.

No. 85-1592.

District of Columbia Court of Appeals.

Argued April 6, 1988.

Decided December 16, 1988.

Syrie Davis, Public Defender Service, with whom James Klein, Public Defender Service, was on the brief, for appellant.

Dennis R. Carluzzo, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty. at the time the brief was filed, and Michael W. Farrell, Elizabeth Trosman, and John P. Dominguez, Asst. U.S. Attys., were on the brief, for appellee.

Before ROGERS, Chief Judge,^* and NEWMAN and BELSON, Associate Judges.

ROGERS, Chief Judge:

On appeal from his conviction by a jury of assault with intent to rob, D.C.Code § 22-501 (1981), appellant Sherman Durant contends that the trial judge abused his discretion in admitting for impeachment medical records showing the use of phencyclidine (PCP) without expert medical testimony. At trial, Durant denied being under the influence of PCP on the day of the alleged offense and the only evidence contradicting this claim was a urine test that detected an unspecified quantity of PCP the day after the offense. Defense counsel made an unrebutted proffer that trace amounts of PCP can be detected in urine long after the effect of the drug has dissipated. We hold that the trial court erred in admitting a medical diagnosis of PCP intoxication as a business record within the exception to the hearsay rule. We further hold that, while other medical records were admissible within that hearsay exception, the trial judge abused his discretion in ruling that the government's proffer of the medical records provided a sufficient evidentiary foundation to be used as extrinsic evidence for impeachment purposes since the records did not link the presence of PCP in Durant's urine the day after the alleged offense to his behavior and his ability to recall events surrounding the offense. Because the admission of the record substantially prejudiced Durant, we reverse.

I

The charge against Durant arose out of an incident involving Earl Richards, a taxi cab driver. On February 14, 1984, Richards was driving his cab when he observed Durant walking in the middle of the street and waving his arm in the air. According to Richards, when he pulled his cab over to the curb to avoid hitting Durant, Durant opened the front passenger door and ordered Richards out of the cab, telling him that he was from the FBI and that he was carrying a bomb. As Durant slid across the front seat, Richards turned off the engine and attempted to take his keys from the ignition, but claimed Durant grabbed his hand and the keys fell to the floor. In an effort to protect his cab, Richards said he got out of the vehicle, opened the hood, and attempted to disconnect the ignition wires. Durant, according to Richards, then rushed out of the cab, slammed the hood down, and got back into the driver's seat. As Durant started the engine, Richards said he jumped into the passenger seat and grabbed the gear shift and steering wheel to stop Durant from driving away. Durant resisted, Richards claimed, and as he and Richards struggled, the cab accelerated onto the curb and stopped.

As the two men were struggling, Officer Ronald Williams arrived. Richards told Williams that Durant claimed to have a bomb and was trying to steal his cab. Richards testified that Durant tried to walk away after Officer Williams arrived, but was impeached with his grand jury testimony that the police pulled Durant from the cab after hearing of his attempt to steal it. Officer Williams initially testified that Durant tried to run away, but admitted on cross-examination that Durant did not get out of the cab until Williams approached him. Richards also testified that Durant's eyes looked "real poppy" and that he appeared "real jittery, like he was jumping . . . like he was not himself." Officer Williams said that he recalled nothing unusual about Durant's eyes or posture while transporting him to the station Durant testified that on February 14, 1984, he was on his way to the Veteran's Administration hospital to check in for treatment of a continuing illness. He was carrying the belongings that he might need for his hospital stay, including a black bag.¹ Durant hailed Richards' cab, and when Richards pulled over, Durant told him his destination and Richards nodded his assent. Durant put his luggage in the back seat and then got in the front seat. Richards started to drive, but after going a short distance announced that he had to pick up his girlfriend. Durant asked to be taken directly to the hospital because he was beginning to feel sick. Richards stopped the cab and ordered Durant to get out. When Durant refused, Richards shoved him and Durant shoved him back. After exchanging words, Richards got out of the cab and then reached back in for his keys. Durant struck Richards' hand believing that Richards was reaching for something with which to hit him. After the police arrived, Durant waited a few minutes while Richards spoke to the police and then pulled his belongings from the back seat and walked over to the police and Richards: Durant denied taking the keys from the ignition and said they remained in the ignition even while Richards spoke to the police.

After Durant's direct examination was completed, the prosecutor requested permission from the trial judge to cross-examine Durant about whether he was under the influence of PCP on February 14 and whether he had told a doctor on February 20 that he was unable to recall the facts surrounding the offense and his arrest. The prosecutor also sought permission, in the event of Durant's denial, to complete the impeachment by introducing in rebuttal, through a medical records custodian, appellant's redacted medical records to show (1) a doctor's entry that Durant was suffering from PCP intoxication on February 15, the day after the offense, (2) a lab report indicating the detection of an unspecified amount of PCP in Durant's urine on the day after the offense and the accompanying diagnosis of PCP intoxication, (3) a nursing entry about Durant's bizarre behavior on the day after his arrest, and (4) an excerpt of a conversation with a doctor on February 20 in which Durant stated that he could not remember what he was doing at the time of the offense. The prosecutor proffered this evidence to explain Durant's behavior during the offense and to challenge his ability to remember the incident.

Defense counsel objected to the admission of this evidence on several grounds. Although agreeing that cross-examination of Durant as to whether he was under the influence of PCP at the time of the offense was proper and relevant to his ability to perceive and remember, counsel argued that it would be improper for the government to link evidence of PCP use to Durant's behavior on February 14. Defense counsel noted that the urinalysis test relied upon by the government was only a qualitative, not a quantitative test, that it was merely a preliminary screening requiring confirmation, which apparently was not done, and that a contemporaneous blood test had failed to detect any PCP in Durant's body. Defense counsel proffered that researchers have determined that traces of PCP can be retained in the body for many days after ingestion, and argued, therefore, that in the absence of explanatory medical testimony based on Durant's medical records, the probative value of the evidence of PCP use was clearly outweighed by its prejudicial impact. He also argued, citing New York Life Ins. Co. v. Taylor, 79 U.S.App.D.C. 66, 147 F.2d 297 (1944), that those portions of the medical records which contained psychiatric opinions were inadmissible hearsay in the absence of live testimony subject to cross-examination. As to Durant's statement to a doctor regarding his lack of recollection, defense counsel maintained that the statement was explainable based on counsel's previous instruction to Durant not to discuss the case with medical personnel.

The trial judge ruled that the government would be allowed to cross-examine Durant on his use of PCP for the purpose of testing his ability to remember the events surrounding the charged offense. If Durant denied such usage, then the government would be permitted to use the medical records as extrinsic evidence to impeach him. The judge further ruled that the government would not be allowed to link Durant's behavior on the date of the offense to PCP intoxication.

Durant then resumed the witness stand for cross-examination. After testifying that Richards' cab was never on the sidewalk while he was on the scene, and denying that he had claimed to be an FBI agent or said he had a bomb, Durant was asked whether he remembered "passing out" in the squad car on the way to the police station. Durant replied that he did not pass out but was knocked unconscious. The prosecutor asked Durant whether Richards' testimony about Durant's "eyes bugging out and fidgeting and trembling" was an accurate description of his behavior. Durant denied acting in such a manner. Durant was then asked whether he had an accurate memory of the events of February 14, and he replied that "As long as I was not unconscious, I recall." The cross-examination continued:

Q. Were you unconscious when Officer Williams, or a police officer, put you in the police car?

A. I was knocked unconscious from the outside of the car.

* * * * * *

Q. [O]n February the 20th, do you recall ever relating to a doctor at D.C. General Hospital, that you were unable to remember the events that happened that caused your arrest?

* * * * * *

A. No, sir, I did not tell no doctor that, under no circumstances.

* * * * * *

Q. Mr. Durant, were you under the influence of PCP on February 14th, 1984 at about five o'clock in the evening?

A. No, sir, I was not under the influence of no type of drug whatsoever.

Q. Mr. Durant, did you know that at the D.C. General Hospital, they performed tests...