Reynolds v. State

• Decision Date: 01 September 1993
• Docket Number: No. 117,117
• Citation: 98 Md.App. 348,633 A.2d 455
• Parties: Richard George REYNOLDS v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 348

98 Md.App. 348

633 A.2d 455

Richard George REYNOLDS v. STATE of Maryland.

No. 117, Sept. Term, 1993.

Court of Special Appeals of Maryland.

Dec. 2, 1993.

[633

A.2d 457]

William F. Renahan, Lanham, for appellant

Diane E. Keller, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Alexander Williams, Jr., State's Atty., for Prince George's County of Upper Marlboro, on the brief), for appellee.

Argued before ALPERT, HARRELL and MURPHY, JJ.

MURPHY, Judge.

Richard George Reynolds, appellant, was convicted by a jury in the Circuit Court for Prince George's County (Hon. Graydon S. McKee III, presiding) of child abuse, fourth degree sex offense, assault and battery. He has appealed those convictions, and presents four issues for our review:

1. "Did the Trial Court err in ruling that § 9-109 of the Courts and Judicial Proceedings Article, Annotated Code of Maryland prohibited testimony of the complaining witness's psychiatrist and psychologist on behalf of the Defendant?

2. Did the admission by the Trial Court of the medical records of the complaining witness's stay in Psychiatric Unit of Anne Arundel General Hospital, over the objection of the Defendant, violate his right of confrontation under the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights? 3. Did the Trial Court err in allowing the State's expert to opine that the complaining witness's post traumatic stress disorder was the result of long term physical and sexual abuse?

4. Did the Trial Court err in refusing to grant a mistrial when it denied Defendant's Motion to strike the testimony of (the victim) or, in the alternative, stay proceedings to allow perjury prosecution of the complaining witness, when the complaining witness admitted that she had committed perjury at a previous hearing?"

Issue 1 has not been preserved for our review because there was no proffer of what the witnesses would have said if they had been permitted to testify. Issue 3 has not been preserved for our review because there was no objection to the opinion when it was expressed at trial. Issue 4 is utterly without merit. Issue 2, however, has been preserved and does have merit. We shall first explain why the admission of certain entries in the hospital record violated appellant's right of confrontation, and shall then address discovery and impeachment issues that are certain to arise during the retrial.

BACKGROUND

The complaining witness, whom we shall refer to as the patient, is appellant's daughter. She alleged that she had been sexually abused for over ten years, but did not report the abuse to any law enforcement officer until almost one year after it had stopped. Appellant, the patient, and other members of their severely dysfunctional family had been treated for several years by many health care professionals, including Merrill Rasmussen, a psychologist. Before trial, the patient signed the following waiver so the State could obtain her mental health records.

"TO WHOM IT MAY CONCERN:

Please release my medical and psychiatric records to the State's Attorney's Office for Prince George's County, Maryland."

The State's case-in-chief included expert testimony from Dr. Nancy Davis, a psychologist whose opinions were based entirely on information supplied by the patient during two pre-trial interviews. Dr. Davis testified that the patient suffered from a post traumatic stress disorder as a result of long term physical and sexual abuse. Dr. Rasmussen did not testify.

The patient's direct examination included testimony about statements she made to physicians, psychologists, and hospital personnel at several institutions over a period of many years. She testified about having attempted suicide, described various mental disorders she suffered from, discussed the treatment she had received, identified drugs that had been prescribed for her, and explained why she had not reported the abuse earlier. In an effort to corroborate the patient's testimony, the State offered into evidence records of her in-patient treatment during an admission to the Anne Arundel General Hospital.

I

Defense counsel offered two reasons why the admission of certain entries in the hospital record would violate appellant's right of confrontation guaranteed by the sixth amendment of the United States Constitution, and by Article 21 of the Maryland Declaration of Rights: (1) he could not cross examine the hospital personnel who had recorded various statements made by the patient; and (2) he could not cross examine the health care providers whose evaluations and conclusions were contained in the records.

The trial judge reviewed the records entry by entry, and overruled the objection to entries that were relevant to diagnosis and treatment. The portions admitted over appellant's confrontation objection included (a) progress notes, (b) evaluation worksheets, (c) treatment plans, (d) consultation reports and (e) a discharge summary. In addition to statements made by the patient, the records revealed (1) that she was "allegedly positive for possible sexual child abuse by the Dad ...;" (2) that one doctor "believes" she is suicidal and "questions that patient may have been abused" by her father; (3) that the treatment plan should include techniques designed to "encourage openness about sexual abuse ...;" (4) that the patient may have been "using food as a transference of feelings about father;" (5) that one doctor who observed her "sitting on lap of father in her room ... felt it was inappropriate ...;" and (6) that she "seems to be gaining insight into the need to ... discuss issue of sexual abuse."

We agree with the trial judge that appellant did not have a right to confront the hospital personnel who merely recorded the statements made by the patient. The patient testified and was cross-examined vigorously. The persons who merely wrote down what she said had a "business duty" to record her statements accurately. We are persuaded that cross-examination of these persons would have been pointless. The confrontation clause does not operate to exclude hearsay evidence that fits into the well recognized and "firmly rooted" hospital record exception to the rule against hearsay. White v. Illinois, 502 U.S. 346, ---- n. 8, 112 S.Ct. 736, 742 n. 8, 116 L.Ed.2d 848 (1992). Because the patient testified at trial, the trial judge did not err in admitting those portions of the record that included statements made by the patient during her hospitalization.

The entries that contain evaluations and conclusions, however, present an entirely different issue. On two occasions, this Court has held that the defendant's right of confrontation was violated by the introduction of Clifton T. Perkins Hospital records that contained opinions of evaluating psychiatrists who were not called to testify at trial. Gregory v. State, 40 Md.App. 297, 325-328, 391 A.2d 437 (1978); Ward v. State, 76 Md.App. 654, 659-662, 547 A.2d 1111 (1988). The State argues that Gregory and Ward should be limited to evaluative reports in the records of the Clifton T. Perkins Hospital, and should not be applied to hospital records that "report matters relating to (the victim's) treatment and are reliable in this respect." We disagree.

The hearsay exception for hospital records extends to everything in the hospital record that is "pathologically germane" (i.e., relevant) to diagnosis and treatment. As a general rule, the confrontation clause does not require exclusion of hospital records that contain objective scientific findings, such as the results of a blood test. State v. Garlick, 313 Md. 209, 215, 545 A.2d 27 (1988). On the other hand, a defendant's right of confrontation is offended by the introduction of blood test results contained in a hospital record if, on the face of the record, there is a substantial question about the reliability of the results reported therein. Moon v. State, 300 Md. 354, 370-371, 478 A.2d 695 (1984). The same principle must be applied to opinions. The right of confrontation is offended by the introduction of an opinion contained in a hospital record if, on the face of the record, the opinion is too ambiguous to be helpful, or appears to lack an adequate factual basis.

Opinions contained in a hospital record are not excluded under the rule against hearsay. They are, however, subject to the foundational requirements that apply to expert testimony. For an opinion to be admitted through a hospital record it must appear from the record itself that the person who expressed the opinion is qualified to do so. Marlow v. Cerino, 19 Md.App. 619, 636, 313 A.2d 505 (1974). It must also appear from the record itself that there is an adequate factual basis for the opinion. If the factual basis for the expert's opinion is inadequate as a matter of law, the opinion is inadmissible. Bohnert v. State, 312 Md. 266, 278, 539 A.2d 657 (1988); Hartless v. State, 327 Md. 558, 578-579, 611 A.2d 581 (1992); B & K Rentals v. Universal Leaf, 84 Md.App. 103, 121, 578 A.2d 274 (1990) rev'd. on other grounds, 324 Md. 147, 596 A.2d 640 (1991); Globe Security Sys. v. Sterling, 79 Md.App. 303, 308, 556 A.2d 731 (1989); Keen Corp. v. Hall, 96 Md.App. 644, 660, 626 A.2d 997 (1993). An opinion that would be excluded with the expert on the witness stand cannot be admitted into evidence because it has been entered in a hospital record.

On three occasions, this Court has held that the trial judge correctly sustained the State's objection to hospital records offered by defense counsel. Testerman v. State, 61 Md.App. 257, 486 A.2d 233 (1985); Cirincione v. State, 75 Md.App. 166, 540 A.2d 1151 (1988); Clarke v. State, 97 Md.App. 425, 630 A.2d 252 (1993). In each case, the record was properly excluded as inadequate on its face. The right of confrontation that appellant asserted in this case is identical to the State's right to obtain the exclusion of defense evidence that lacks a...