Lee v. State

• Decision Date: 05 September 1979
• Docket Number: No. CA,CA
• Citation: 587 S.W.2d 78,266 Ark. 870
• Parties: Douglas Ray LEE, Appellant, v. STATE of Arkansas, Appellee. CR 79-41.
• Court: Arkansas Court of Appeals

Page 78

587 S.W.2d 78

266 Ark. 870

Douglas Ray LEE, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 79-41.

Court of Appeals of Arkansas.

Sept. 5, 1979 Released for Publication by the Court of Appeals.

Gallman & Wiley, Fayetteville, for appellant.

Steve Clark, Atty. Gen., by Neal Kirkpatrick, Asst. Atty. Gen., Little Rock, for appellee.

HOWARD, Judge.

Appellant was convicted by a jury of three counts of manslaughter, resulting in a sentence to the Department of Correction for five years and a $500.00 fine on each count, and driving on a suspended driver's license, resulting in a $100.00 fine. The trial court suspended the fines imposed and ordered the sentences to the Department of Correction to run consecutively.

For reversal of his conviction, appellant has asserted the following points:

1. The trial court erred in admitting into evidence State's exhibits 4, 5, 6 color photographs showing the location of the decedents' bodies at the scene of the one car accident and the condition of the vehicle driven by appellant which served little probative value and were highly prejudicial.

2. The court erred in permitting Keith Ferguson a State Trooper who estimated the speed of appellant's vehicle at the time of the accident between 80 and 90 miles per hour which estimate was based in part on the speed the trooper could "take the curve" and stay on his side of the road to give his opinion about the speed appellant's vehicle was traveling at the time of the accident.

3. The trial court erred in refusing to grant appellant's motion for a continuance to allow him to secure a vital medical witness who was subpoenaed the morning of the trial and who resided in a city other than where the trial was being held.

4. The trial court erred in not allowing into evidence the medical records which were compiled by the appellant's physician and of vital importance to the appellant's defense.

5. The trial court erred in admitting into evidence Dr. Jorge Johnson's testimony concerning Tina Randolph's cause of death after it was conceded by the appellant that the accident was that cause.

We are persuaded that appellant's points four and five have merit and we reverse and remand to the trial court.

Appellant offered to be introduced into evidence certain medical records compiled by appellant's attending physician. The records consisted, according to appellant's counsel, of the admission sheet at the Washington General Hospital, the discharge summary by Dr. McNair and Dr. Harris, the admission by Dr. McNair, the operative report for an operation on October 26, 1978, and the operative record for November 7, 1978. The following exchange took place after counsel for appellant offered the records:

THE COURT: Any objection, Mr. Clinger?

MR. CLINGER: Your Honor, we object to it, the admission of those documents on the following basis: We all concede those documents would be admissible to be referred to by expert testimony, the medical testimony, but other than that, they do not stand alone and if they're admitted they don't gave me an opportunity to cross examine the doctors who made those remarks, so there's no basis for those being admitted.

THE COURT: Alright. The offered exhibit will be excluded and your objection noted.

Rule 803 of the Uniform Rules of Evidence provides, in relevant part:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(6) Records of regularly conducted business activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, 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 the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicates lack of trustworthiness. The term 'business' as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

As asserted by appellant, the State did not challenge the admissibility of the medical records on the grounds of the lack of trustworthiness or authenticity, but essentially that the State would not be afforded the opportunity to cross examine the doctors who made the records.

The State argues for the first time that the records in any event are irrelevant and if the trial court was incorrect in not admitting the records on the grounds asserted by the State, the trial court should be sustained anyway. The State cites Nelson v. State, 257 Ark. 1, 513 S.W.2d 496 in support of its position.

First, we perceive that Nelson is to be distinguished from the instant case. The medical records were admitted into evidence in Nelson, but the trial court refused to permit the medical record librarian to read from the records regarding the dates of several brain concussions suffered by appellant, medication prescribed, final diagnoses and summary of the hospitalizations. The Supreme Court of Arkansas, in sustaining the trial court's action said:

Finally, it is asserted that the court erred in refusing to permit medical librarians to read from medical records which had been offered into evidence by appellant. These records were offered as a matter of furthering the defense of insanity and appellant desired that the hospital employees read inter alia the dates of several brain concussions suffered by appellant, medication prescribed, final diagnoses, and summary of the hospitalizations. The records were properly offered . . ., but this fact in itself does not necessarily mean that all the contents of such records were relevant or competent. . . . Appellant achieved his purpose in offering these records, for the matters heretofore mentioned, with the permission of the court, were not only fully discussed by Mr. and Mrs. Nelson, parents of appellant, but by both the psychiatrist who testified for the defense, and the psychiatrist who testified for the State. The several concussions and circumstances surrounding were related to the jury in detail, and we cannot say that the mere reading of such records by non-experts would have added anything of value to the evidence. . . .

While Dr. Robert Holder testified, in the instant case, that he treated appellant immediately after the accident and observed that appellant was in shock, smelled of alcohol, was uncooperative,...