State v. Baze

• Decision Date: 22 March 2011
• Docket Number: No. DA 10–0312.,DA 10–0312.
• Citation: 251 P.3d 122,359 Mont. 411,2011 MT 52
• Parties: STATE of Montana, Plaintiff and Appellee,v.Michael Bryan BAZE, Defendant and Appellant.
• Court: Montana Supreme Court

359 Mont. 411

251 P.3d 122

2011 MT 52

STATE of Montana, Plaintiff and Appellee,

v.Michael Bryan BAZE, Defendant and Appellant.

No. DA 10–0312.

Supreme Court of Montana.

Submitted on Briefs Feb. 16, 2011.Decided March 22, 2011.

For Appellant: Joslyn Hunt, Chief Appellate Defender, Shiloh Hernandez, Assistant Appellate Defender, Helena, Montana.For Appellee: Steve Bullock, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana.Justice PATRICIA O. COTTER delivered the Opinion of the Court.

[359 Mont. 412] ¶ 1 Michael Baze (Baze) appeals from an order of the Sixteenth Judicial District Court, Rosebud County, denying his motion to suppress the results of a blood test during his trial for driving under the influence of alcohol (DUI). We reverse and remand for a new trial.

ISSUES

¶ 2 Baze raises four issues on appeal. However, a restatement of the dispositive issue is whether the District Court erred when it admitted the faxed report containing Baze's blood test results under M.R. Evid. 803(6), the business records hearsay exception. Since resolution of this issue is dispositive, we decline to address Baze's remaining three issues.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 Around 7:00 p.m. on March 15, 2004, Baze was involved in a single-car rollover accident on Interstate 94 near Forsyth, Montana. While there is some dispute whether Baze drove off the road or was forced off the road by another vehicle, it is undisputed that an ambulance responded to the scene and transported Baze to Rosebud Health Care Center (RHCC) in Forsyth. Montana Highway Patrolman Steven Downs responded to the scene after Baze had been transported to RHCC. He then proceeded on to the RHCC emergency room. There, Trooper Downs interviewed Baze and, suspecting him of DUI, asked Baze to submit to a breathalyzer test. Baze refused. Since Baze was undergoing medical treatment, Trooper Downs did not arrest Baze, and instead cited Baze for DUI, driving with a suspended license, and failure to have insurance. Trooper Downs left these citations that required Baze to appear in court on April 6, 2004, with Baze's personal belongings. Baze failed to appear. The State did not charge Baze with felony DUI until 2009. The parties stipulated at trial that the delay was attributable to both sides.

¶ 4 After Baze arrived at RHCC, phlebotomist and clinical laboratory scientist Margo Anderson (Anderson) drew a sample of Baze's blood. Because RHCC lacked the facilities to analyze blood samples for alcohol content, Baze's blood samples were sent to Deaconess Billings Clinic (Billings Clinic) for testing. According to a note at the bottom of a facsimile toxicology report dated March 17, 2004, which was sent from Billings Clinic to RHCC, the result of Baze's blood test was “called back by SKREZBLAK on 3/16/2004 8:03 P.M.,” indicating Baze's blood alcohol content was 0.328. The faxed report was eventually incorporated into Baze's RHCC medical records. Before trial, Baze filed a motion requesting that the State provide discovery establishing the chain of custody of the blood evidence or that the court suppress the evidence. The District Court held a suppression hearing on November 9, 2009.

¶ 5 At the hearing, Baze argued that the faxed report was inadmissible as evidence unless the State established a chain of custody from the time the blood was drawn to when it was tested at Billings Clinic. The State countered that chain of custody was not required because the blood tests were conducted for medical purposes, not at the request of law enforcement. The State also argued, briefly, that the blood test was admissible under the business records hearsay exception. Anderson testified for the State that, consistent with the statements in the faxed report, she drew Baze's blood at 8:30 p.m. on March 15, 2004, following specific medically recognized procedures and placed the vials in a cooler to await shipment to Billings via same-day courier. The State also presented testimony from RHCC's director of medical records, Claudia Kajin, who testified that its medical records are generated in the regular course of business. Neither the courier nor anyone from Billings Clinic testified about the handling or analysis of Baze's blood sample. No witness identified “Skrezblak,” or testified as to receiving the Billings Clinic fax at RHCC.

¶ 6 Ultimately, the District Court denied Baze's motion to suppress, concluding that the chain of custody requirements for blood samples taken for medical purposes are not as strict as those taken at the request of police, and that the faxed report containing Baze's blood test result was admissible under M.R. Evid. 803(6), the business records hearsay exception. During the trial, Baze objected twice more to admission of the blood test, and both objections were overruled. Baze was convicted of felony DUI by a jury and sentenced to the Department of Corrections for thirteen months with recommended placement in the WATCh program. The District Court also imposed a five-year suspended sentence, fines and other costs. Baze timely appeals.

STANDARD OF REVIEW

¶ 7 We review a district court's ruling on a motion to suppress evidence to determine whether the findings of fact are clearly erroneous and whether the court correctly applied those findings as a matter of law. State v. Schauf, 2009 MT 281, ¶ 13, 352 Mont. 186, 216 P.3d 740. A finding is clearly erroneous if it is not supported by substantial evidence, if the trial court misapprehends the effect of the evidence, or if our review of the record convinces us that a mistake has been committed. State v. Weaver, 2008 MT 86, ¶ 9, 342 Mont. 196, 179 P.3d 534. We review a district court's ruling on admissibility of evidence for abuse of discretion. State v. Aakre, 2002 MT 101, ¶ 8, 309 Mont. 403, 46 P.3d 648.

DISCUSSION

¶ 8 Issue: Did the District Court err when it admitted the faxed blood test results under M.R. Evid. 803(6), the business records hearsay exception?

¶ 9 Prior to reaching the merits of this issue, we address the question of whether this issue was properly preserved for appeal. Both parties correctly note that this Court generally does not consider issues presented for the first time on appeal because it is “fundamentally unfair to fault the trial court for failing to rule on an issue it was never given the opportunity to consider.” State v. West, 2008 MT 338, ¶ 16, 346 Mont. 244, 194 P.3d 683 (citing Day v. Payne, 280 Mont. 273, 276–77, 929 P.2d 864, 866 (1996)). However, the principal purpose of the timely-objection rule is judicial economy and “bringing alleged errors to the attention of each court involved, so that actual error can be prevented or corrected at the first opportunity.” West, ¶ 17 (internal citations omitted). We have previously held we will not harshly apply the timely-objection rule for the sake of economy when its application is clearly at the expense of justice. See State v. Montgomery, 2010 MT 193, ¶ 13, 357 Mont. 348, 239 P.3d 929. Finally, “we have permitted parties to bolster their preserved issues with additional legal authority or to make further arguments within the scope of the legal theory articulated to the trial court.” Id. at ¶ 12 (citations omitted).

¶ 10 Here, the State argues that Baze did not preserve his business record hearsay exception argument for appeal because he addressed, but did not adequately develop, that theory in the District Court. Baze concedes he did not fully develop this theory in the District Court, but asserts the reason was that the State provided notice it intended to introduce business records under M.R. Evid. 803(6), but did not indicate which documents it sought to admit. Moreover, Baze asserts that he objected to use of the business record hearsay exception in anticipation the State might try to use the exception to admit the faxed report. However, as both parties acknowledge in their briefs to this Court, neither party presented developed arguments regarding the business record hearsay exception. Nonetheless, the District Court developed its own theory and based its denial of Baze's motion to suppress the evidence in part upon a novel interpretation of the business records hearsay exception.

¶ 11 Fundamental unfairness to the District Court is not at stake here because it was the District Court, not the parties, which sua sponte resolved on the merits whether or not the faxed toxicology report was admissible via the business records hearsay exception. Baze and the State had the opportunity to address the question, the District Court had the opportunity to rule on it, and we have in front of us the benefit of the District Court's ruling. We conclude Baze's business record hearsay exception argument is not barred on appeal, and therefore, we turn to its merits.

¶ 12 “Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” M.R. Evid. 801(c). “Hearsay is not admissible except as otherwise provided by statute, these rules, or other rules applicable in the courts of this state.” M.R. Evid. 802. M.R. Evid. 803 identifies those statements that are not excluded by the hearsay rule, even though the declarant is an available witness. The relevant text of the business records exception states:

(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnosis, made at or near the time of the acts, events, conditions, opinions, or diagnosis, 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 indicate lack of...