Moon v. State

• Citation: 478 A.2d 695,300 Md. 354
• Decision Date: 01 September 1982
• Docket Number: No. 87,87
• Parties: Craig Wesley MOON v. STATE of Maryland. ,
• Court: Court of Appeals of Maryland

Page 354

300 Md. 354

478 A.2d 695

Craig Wesley MOON v. STATE of Maryland.

No. 87, Sept. Term, 1982.

Court of Appeals of Maryland.

July 19, 1984.

John L. Kopolow, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant. Alexander L. Cummings, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellee.

Argued before SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ., and W. ALBERT MENCHINE, Associate Judge of the Court of Special Appeals (retired), Specially Assigned.

COLE, Judge.

Once again Craig Wesley Moon has petitioned this Court for relief. Moon's difficulties stem from his involvement in an automobile accident of February 18, 1979, on U.S. Route 140. Moon was travelling north when he collided with a vehicle in the southbound lane killing the driver and passenger of that vehicle. He was tried and convicted of two counts of automobile manslaughter, two counts of homicide by motor vehicle while intoxicated, reckless driving, driving while intoxicated, negligent driving and failing to drive on the right half of the road. The first time this matter came to our attention the State requested our review of a per curiam opinion of the Court of Special Appeals reversing Moon's conviction because that Court determined that certain test results were received into evidence in violation of Md.Code (1974, 1980 Repl.Vol.) §§ 10-302 to 10-309, Courts and Judicial Proceedings Article. Moon v. State, No. 154, September Term, 1980, filed October 30, 1980. This Court reversed the Court of Special Appeals because we held that the blood taken from Moon and the chemical test performed thereon were done to determine treatment required rather than as evidence for criminal prosecution. We remanded this case to the court to consider the issues raised but not decided. State v. Moon, 291 Md. 463, 436 A.2d 420 (1981). On remand the Court of Special Appeals affirmed Moon's convictions. Moon v. State, No. 154, September Term, 1980, per curiam opinion filed February 10, 1982.

Thereafter this Court granted Moon's petition for certiorari and issued its per curiam order without affirmance or reversal, with instructions to answer the question "Were the results of Petitioner's blood alcohol and osmolality tests admitted into evidence in violation of his constitutional right of confrontation?" [ Moon v. State, 293 Md. 593, 445 A.2d 703 (1982).]

On remand the Court of Special Appeals concluded that because of their objective nature, "the admission of Moon's blood alcohol and osmolality tests was not in violation of his constitutional right of confrontation." Moon v. State, No. 154, September Term, 1980, per curiam opinion filed June 23, 1982, at 1.

Moon filed a petition for writ of certiorari which we granted to consider the constitutional issue raised. Before us Moon contends that his right of confrontation and cross-examination was violated by admitting the hospital tests into evidence without presenting the testimony of the technician who performed the chemical tests. We shall recite such of the facts as are necessary to place the issue in proper focus.

The accident occurred on February 18, 1979, at approximately 12:30 a.m. Testimony at trial indicated that prior to the accident Moon's car was seen proceeding erratically at a high rate of speed. Persons arriving at the scene noted an odor of alcohol in Moon's car. The medical attendant accompanying Moon in a State Police helicopter to the University of Maryland Shock Trauma Unit detected an odor of alcohol on Moon's breath. At the hospital the attending physician ordered x-ray examinations and drug screening tests to be performed. An osmolality test was performed in the clinical laboratory of the Shock Trauma Unit and a blood alcohol test was performed in the hospital laboratory. The osmolality reading was 347 and the blood alcohol concentration was determined to be 0.165%. These tests results were a part of and included in Moon's hospital records. The parties stipulated that the hospital records were kept in the ordinary course of the hospital's business and it was unnecessary to produce the custodian of the records to authenticate the file as pertaining to Moon. However, the stipulation did not extend to the admissibility of the osmolality and blood alcohol test results. The defense maintained that before the question of admissibility could be resolved it had the right to confront and cross-examine the laboratory technician who conducted the tests and obtained the results. The State argued that these tests were routine procedures followed by the hospital and were, therefore, admissible under the statutory business records exception to the hearsay rule as provided in Maryland Code (1974, 1980 Repl.Vol.) § 10-101, Courts and Judicial Proceedings Article. Thus, the State persisted that the defendant's right to confront the witnesses against him was outweighed by the inherent trustworthiness of the records and the fact that the laboratory technician was present and available in the courtroom at the time of trial was of no significance. The State, therefore, declined to call the technician. Because the defense was unwilling to vouch for the technician's credibility, it, too, refused to call him as a witness.

The trial court admitted the hospital records as business records under the statute, and the State called Dr. Yale H. Caplan, Chief Toxicologist of the State Medical Examiner's Office, over objection, to interpret the results of the blood alcohol and osmolality tests. Dr. Caplan testified that he was generally familiar with the blood testing procedures used at University Hospital; that an osmolality test is an objective test conducted prior to treatment to indicate preliminary if alcohol was involved in the condition of the patient; that the osmolality test is not a definitive test of alcohol but only an indicator; that a 347 osmolality reading is consistent with a blood alcohol concentration of 0.15 or 0.16%; that the blood analysis is very definitive with a high degree of precision and accuracy; that a person with a blood alcohol level of 0.165% will experience heightened self-confidence, increased reaction time, decreased concentration and impaired vision.

In addition to objecting to Dr. Caplan's testimony, Moon claims he was denied the right to question the authenticity of these tests because the State did not produce the laboratory technician. Moon contends that the blood alcohol test report is saddled with several significant discrepancies. First, the report does not state his name but rather contains the description "Male Doe 8515" in the blank following the notation "patient." He admits that other documents in the hospital report specify his name and also contain the same number 8515. Moon further notes that the toxicology report indicates the time of blood withdrawal as "2-18-79 2:49 a.m."; however, the date of the report is indicated as "2-21-79." Moon argues that without the testimony of the technician, the trial court cannot be certain that the report is about him or why the blood test and/or report was not made until three days after the test was allegedly conducted. He maintains that the timeliness of a report has direct bearing on its reliability. Thus, Moon squarely poses before us the question of whether admitting the hospital records into evidence without first producing the laboratory technician as a witness violated his constitutional right of confrontation.

The Sixth Amendment to the United States Constitution requires that: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witness against him ...." Article 21 of the Maryland Declaration of Rights requires that "in all criminal prosecutions, every man hath a right ... to be confronted with the witnesses against him...." We note, therefore, that these provisions secure "the same right." Crawford v. State, 282 Md. 210, 211, 383 A.2d 1097 (1978) (citing State v. Collins, 265 Md. 70, 288 A.2d 163 (1972)). Furthermore, because the Sixth Amendment Confrontation Clause has been held applicable to the states, see Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), the Supreme Court's interpretation of the federal right to confrontation is binding upon this State. Nevertheless, because the Maryland right has been a part of our law since 1776, a brief review of both the major Maryland and Supreme Court cases interpreting the confrontation right where the hearsay rule has been involved is in order.

The first Maryland case in this area is Johns v. State, 55 Md. 350 (1881), in which the defendant was indicted as a defaulter under the Act of 1872, ch. 329, providing that the Comptroller's certificate showing the taxes due shall "be received as prima facie evidence of such defalcation." Id. at 359. Johnson contended that admitting the certificate violated his right to be confronted by the witnesses against him. The Court, however, rejected this argument, noting that this "provision of the Declaration of Rights is not to be understood as excluding all other evidence except oral evidence of witnesses produced in court." Id. at 360.

The Court of Appeals later discussed Johns in Jones v. State, 205 Md. 528, 109 A.2d 732 (1954). In that case, the defendant had been convicted of abortion. At trial, the prosecuting witness' testimony as to her pregnancy was uncertain; therefore, the State sought to prove pregnancy through the testimony of the head of the department of obstetrics and gynecology at the hospital in which the victim had been treated after the "abortion." The doctor had never seen the victim; however, he had examined her hospital records and brought them to court. The defense objected to admitting the hospital records without referring to the right of confrontation. Thereafter, the doctor testified about the substance of what was contained in the...