Pickett v. State

• Decision Date: 23 November 1982
• Docket Number: 3 Div. 504
• Citation: 456 So.2d 330
• Parties: John Edward PICKETT v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 330

456 So.2d 330

John Edward PICKETT v. STATE.

3 Div. 504.

Court of Criminal Appeals of Alabama.

Nov. 23, 1982.

Rehearing Denied Dec. 28, 1982.

Certiorari Denied March 11, 1983

Alabama Supreme Court 82-341.

On Return to Remand, Affirmed

No Opinion, Aug. 16, 1983.

C. Winston Sheehan, Jr. of Ball, Ball, Duke & Matthews, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

The defendant was indicted and convicted for sexual abuse in the first degree in violation of Alabama Code Section 13A-6-66 (1975). He was sentenced as an habitual offender to sixteen years' imprisonment.

Evidence for the State established that the victim was a ten-year-old girl whose mother was employed by the defendant. On the morning of August 24, 1981, the defendant spoke with the child's mother and offered to take the girl to get something to eat. After they arrived at the defendant's apartment, the defendant grabbed the victim's hand and took her into the bedroom. He asked her if she could keep a secret and inquired whether she wanted to have children. Then he pulled her clothes down and put his finger inside her vagina. She began to cry, told him to stop, and said she was ready to go home. The defendant took the child home about noon and the girl reported the incident to her mother, who called the police. An officer from the Youth Aid Division of the Montgomery Police Department investigated the complaint and took the child to the Jackson Hospital emergency room at 5:45 P.M., where she was examined and released at 7:45 P.M.

On cross examination, the victim testified that she did not want her mother to marry the defendant. She also admitted that she had previously made a false accusation of sexual abuse against the defendant's stepson and had been punished for it by her mother.

Over the defendant's objection, the trial court admitted the hospital emergency room report which contained the following handwritten findings:

"History and Physical. Hymen broken--smooth edges, no evidence of recent trauma to hymen. Erythema on lateral aspect of vaginal wall bilaterally.

"Diagnosis. Recent vaginal trauma."

The report also included a typewritten notation under the space marked "Cause of Accident or Illness" which read "Sexual Abuse".

After the State rested, the defense called two teachers from the school where the victim was enrolled to testify to the child's reputation for untruthfulness.

I

The defendant argues that the victim's hospital record should not have been admitted into evidence (a) because it constituted hearsay and (b) because it denied him his Sixth Amendment right to confront the witnesses against him.

A The Hospital Record As Hearsay

A copy of the hospital record was admitted under Alabama Code Sections 12-21-5, 6, 7 (1975). The certificate of the custodian, attached to the envelope containing the copy of the emergency room report, was identical in form to that prescribed in Section 12-21-7. Section 12-21-6 provides:

"When so prepared and certified, the copy of said hospital records shall be admissible in evidence in any court in the State, if and when admissible, in prima facie proof of the facts therein shown just as if otherwise verified and just as if the copy were the original .... All the circumstances of the making of such hospital records, including lack of personal knowledge of the entrant or maker of such hospital records, may otherwise be shown to affect the weight of such hospital records, but this shall not affect their admissibility."

However, in order to constitute an exception to the hearsay evidence rule, the hospital record must be shown to have been made in the usual course of business, as required by Section 12-21-5. ¹ Sections 12- 2-6 and -7 must be read in conjunction with Section 12-21-5. Whetstone v. State, 407 So.2d 854, 860 (Ala.Cr.App.1981). Section 12-21-5 is a "specialized business record statute ... which renders admissible a certified copy of hospital records that are kept in the regular course of the particular hospital's business." C. Gamble, McElroy's Alabama Evidence, Section 254.01(7), p. 99, 1980 Supplement (3rd ed. 1977). Consequently, a copy of a hospital record will constitute an exception to the hearsay evidence rule where (1) the copy was properly certified by the custodian (Section 12-21-7), (2) the original hospital record was made and kept in the usual and regular course of business of the hospital, (3) it was in the regular course of business of the hospital to make and keep such record, and (4) the record was made at the time of such acts, transactions, occurrences or events therein referred to occurred or arose or were made, or within a reasonable time thereafter (Section 12-21-5). Requirements (2), (3) and (4) of this predicate bring the hospital report under the business record exception to the hearsay rule. Compare Section 12-21-5 (hospital records) with Section 12-21-43 (Business Records Act). A certified copy of an original hospital record which meets the requirements of the business records act of Section 12-21-43 constitutes an exception to the hearsay rule. Seay v. State, 390 So.2d 11, 12 (Ala.1980); McElroy, Section 254.01(7). However, hearsay in a properly certified copy of a hospital record not shown to have been made in the regular course of business is objectionable. Whetstone, 407 So.2d at 860-61; Lowery v. State, 55 Ala.App. 511, 518, 317 So.2d 357, cert. denied, 294 Ala. 763, 317 So.2d 372 (1975).

Here, the State proved that the emergency room report was a business record by a second certificate of the custodian in addition to the one required by Section 12-21-7. On the envelope containing the victim's record was the additional certificate:

"I further certify that these hospital records were made and kept in the usual and regular course of business of said hospital and it was in the regular course of business of said hospital to make and keep said records and that said records were made at the time of such acts, transactions, occurrences or events therein referred to occurred or arose or were made, or within a reasonable time thereafter."

We know of no statute authorizing such a certificate and providing an extra-judicial means of establishing that a writing is a business record. "Unless a statute provides otherwise, evidence generally only comes into court through articulation by a witness." Hutchens v. State, 45 Ala.App. 507, 518, 232 So.2d 687, cert. denied, 285 Ala. 755, 232 So.2d 700 (1970). See also Austin v. State, 354 So.2d 40, 42 (Ala.Cr.App.1977), cert. denied, 354 So.2d 44 (Ala.1978).

However, the defendant's objection to the hospital report as hearsay did not preserve this issue for review. As in Thompson v. State, 384 So.2d 1131, 1134-35 (Ala.Cr.App.1979), cert. denied, 384 So.2d 1135 (Ala.1980), the trial court was not called upon to determine whether the copy of the emergency room report was objectionable on grounds that it was not properly shown to have been made in the regular course of business or upon any ground other than the asserted grounds of hearsay and denial of the defendant's right of confrontation.

The defendant also argues that the admission of the notation "Sexual Abuse" under "Cause of Accident or Illness" on the emergency room record was reversible error because it constituted a conclusion on the ultimate issue in the case. He correctly cites Wyatt v. State, 405 So.2d 154 (Ala.Cr.App.1981), for the proposition that such conclusory statements concerning the cause of a victim's injury are inadmissible. "(D)ata pertaining to the cause of the injury, unless essential to a diagnosis, should be excluded." Liberty National Life Ins. Co. v. Reid, 276 Ala. 25, 36, 158 So.2d 667 (1963).

The objection to the term "child abuse" in Wyatt, however, was specifically aimed at the inadmissibility of the conclusion. 405 So.2d at 155. Here, the defendant objected to the entire report on the basis of hearsay without specifying the impropriety of the conclusion. While the typewritten notation "Sexual Abuse" no doubt may have been based on the hearsay statements of the victim, the defendant's objection did not focus the trial court's attention on the specific matter found objectionable. See Anderson v. State, 35 Ala.App. 111, 44 So.2d 266 (1950).

"When a party objects to a document as a unit that contains admissible as well as inadmissible matter, the trial court is justified in overruling the objection." Smith v. State, 354 So.2d 1167, 1172 (Ala.Cr.App.1977), cert. denied, 354 So.2d 1172 (Ala.1978). A defendant cannot complain on appeal of the admission of a written statement over his general objection where some parts of the document were admissible. It is not for the trial court to separate the admissible from the inadmissible. Shorter v. State, 63 Ala. 129 (1879); Johnson v. State, 32 Ala.App. 101, 104, 22 So.2d 102, reversed on other grounds, 246 Ala. 630, 22 So.2d 105 (1945). The objection should separate the good from the bad, Brown v. State, 40 Ala.App. 226, 112 So.2d 500, cert. stricken, 269 Ala. 180, 112 So.2d 504 (1959); Haney v. State, 20 Ala.App. 236, 101 So. 533, cert. denied, Ex parte Haney, 211 Ala. 614, 101 So. 537 (1924); Patterson v. State, 8 Ala.App. 420, 62 So. 1023 (1913).

Further, the record reflects that the defendant did specifically object to "certain matters with the reports themselves that may be excluded as being an opinion." The court then deleted those portions of the hospital record containing the victim's explanation of her injuries. From the record:

"THE COURT: Let's use the copy that has deleted the statement of the child as incriminating to your client, Mr. Sheehan, whereas it is customary to take that as part of it. They also ask the alleged injured person what is the matter with you. What happened to you. That is part of this record but nonetheless, out of excess of caution, I am inclined to not put it in."

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