State v. Fisher

• Decision Date: 23 June 1970
• Docket Number: No. 53400,53400
• Parties: STATE of Iowa, Appellee, v. Lewis Lopez FISHER, Jr., Appellant.
• Court: Iowa Supreme Court

Page 380

178 N.W.2d 380

STATE of Iowa, Appellee, v. Lewis Lopez FISHER, Jr., Appellant.

No. 53400.

Supreme Court of Iowa.

June 23, 1970.

Thomas L. Root, Council Bluffs, for appellant.

Richard C. Turner, Atty. Gen., and G. Douglas Essy, Asst. Atty. Gen., for appellee.

LeGRAND, Justice.

Defendant was indicted for the forcible rape of Rosemary Kiefer in violation of section 698.1, Code of Iowa. He was tried, convicted, and sentenced to a term of 40 years in the penitentiary at Fort Madison, Iowa. He appeals from that judgment, and we reverse and remand for a new trial.

The nature of the appeal makes it unnecessary to detail the facts surrounding the event. Defendant assigns two errors which he claims entitle him to a new trial and a third which, if the first two are unavailing, is urged as cause for reduction of his sentence. They are: (1) misconduct on the part of the jury in considering out-of-court evidence prejudicial to defendant; (2) error in the admission of hospital records; and (3) imposition of an excessively severe sentence.

We consider only the assignment dealing with the admission of hospital records, since it is determinative of this appeal and since our conclusions as to the others would not be helpful on retrial of this case.

Before discussing the circumstances surrounding the admission of the disputed hospital report, we point out the importance of this evidence. While there is considerable testimony placing defendant at the scene of the alleged crime, there is little to corroborate Miss Kiefer's testimony concerning sexual intercourse except that furnished by the laboratory report attached to the hospital record. We deem this an important part of the State's case.

Immediately following the alleged rape, the complaining witness was examined at Jennie Edmundson Hospital by Dr. Milton M. Rowley, who was on duty there as a hospital physician covering the emergency room. In the course of the examination, he took several vaginal smears, which were then sent to the laboratory on instructions from Dr. Richard Smith, the physician in charge at the hospital that night. The laboratory tests were run by Dr. M. H. Kulish.

Neither Dr. Smith nor Dr. Kulish appeared as a witness nor did any administrative employee of the hospital testify concerning the manner in which records are prepared and preserved as part of the hospital files.

At the trial Dr. Rowley produced the report and stated he had obtained it from the hospital the previous day. It consists of two sheets. The first discloses nothing of importance, and no objection to that portion was raised. The second page, taped to the first, is the laboratory report signed by Dr. Kulish. It contains the following statement, 'At 6:50 A.M. on June 6, 1968 from Mrs. Judy Clark, R. N. at Jennie Edmundson Memorial Hospital, (I received) a slide container with two glass slides * * * indicated as being from this patient (Rosie Kiefer). Two smears are stained, one by the crystal violet and the other by the methylene blue technique. Each shows numerous spermatozoon present.' The report is signed by M. H. Kulish, M.D., pathologist.

This report, introduced as Exhibit 5, was admitted under section 622.28, Code of Iowa, which provides in part as follows:

'Any writing or record, whether in the form of an entry in a book, or otherwise, * * * offered as memoranda or records of acts, conditions or events to prove the facts stated therein, shall be admissible as evidence if the judge finds that they were made in the regular course of a business at or about the time of the act, condition or event recorded, and that the sources of information from which made and the method and circumstances of their preparation were such as to indicate their trustworthiness, and if the judge finds that they are not excludable as evidence because of any rule of admissibility of evidence other than the hearsay rule. * * *'

Defendant's objection to Exhibit 5 was limited to the laboratory report. The complaint was that Dr. Rowley, the only witness vouching for the exhibit, 'is not the custodian of the records of Jennie Edmundson Hospital; no showing the whereabouts of these records, where he obtained them.' While this objection could have been more specific, we believe it sufficiently raised the issue of the preliminary proof necessary to authenticate a hospital record before its admission under section 622.28, Code.

The only issue raised concerns the mechanics by which the laboratory report became and remained part of the hospital records justifying its later use to establish 'the facts stated therein.' We limit our discussion accordingly.

Our present section 622.28 is a relatively new business records statute which became effective in 1961. It replaced our prior shop-book record rule. Its purpose was to liberalize the circumstances under which written memoranda, reports, and other data may be admitted into evidence without the necessity of producing each person who contributed information to those records or who had any part in assembling them.

The statute has been before us on several occasions, in both civil and criminal cases, and we have attempted to accord it the broad, liberal interpretation it was intended to have.

In doing so, however, we must also recognize the importance of those safeguards which assure the integrity of such evidence and which were relied upon to make it admissible as an exception to the hearsay rule in the first place. This is particularly true in criminal cases, where some courts have even argued the rule is inapplicable because it violates a defendant's constitutional right to be confronted by the witnesses against him. State v. Tims, 9 Ohio St.2d 136, 224 N.E.2d 349, 351. See also 40 Am.Jur.2d, Hospitals and Asylums, section 43, page 883. While we have held it equally appropriate in civil or criminal trials, we have always insisted on proof of the dependability of the recordkeeping process before permitting the use of records or other material under the sanction of section 622.28.

As pointed out in State v. Anderson, Iowa, 159 N.W.2d 809, 814, 815, in order for evidence to be admissible under this section the trial court must find (1) that the record was made in the regular course of business; (2) that it was made at or about the time of the act, condition or event recorded; (3) that the source of information from which the record was made and The method and circumstances of its preparation were such as to indicate its trustworthiness; and (4) that the record is not excludable as evidence because of any rule of admissibility of evidence other than the hearsay rule.

We recognized there, too, that the trial court has considerable discretion in determining the admissibility of such evidence. In the present case, however, we find no evidence which authenticates the 'method and circumstances' under which this report was compiled and preserved. Unless we are to now say section 622.28, Code, eliminated the necessity for such proof, we must hold the laboratory report attached to Exhibit 5 was improperly received and that its admission was prejudicial error.

Historically the old shop-book rule insisted every person who made an entry or who otherwise contributed to a record must testify before it could be received as evidence. As business operations grew more and more complex, this unwieldy system became increasingly impractical. To meet the exigencies of modern business, some courts relaxed those rules to provide that records made in the usual course of business were themselves proof of the items contained therein if some person familiar with the records could authenticate them by describing the manner in which they were kept and could verify that they were indeed made as part of a regular business practice. Iowa was among those adopting a liberal rule with reference to the admission of business records. Olesen v. Henningsen, 247 Iowa 883, 77 N.W.2d 40. In an interesting article on the subject in 46 Iowa Law Review 276, 296, this case is described as judicially adopting a rule 'as sweeping as that resulting from modern legislation.' See also comment in 42 Iowa Law Review 431--434. Gearhart v. Des Moines Railway Company, 237 Iowa 213, 21 N.W.2d 569, also decided before the enactment of present section 622.28, is referred to in that same article (46 Iowa Law Review at page 300) as a 'leading modern case' on the introduction of hospital records.

Subsequently our present section 622.28 was enacted, lending statutory authority to the liberal rule under which records made in the usual course of business may be used as proof of the information they contain.

We refer to these matters only to show our agreement, both before and since the adoption of our present statute, with the principle of liberalizing the use of properly authenticated business reports as evidence.

We know of no rule, however, dispensing with the necessity for first showing the reliability of the System under which they are made and preserved, whether admitted under court-made rules or by virtue of statutory pronouncement. In fact the more liberal the rule permitting the use of information a report contains, the more necessary to demonstrate the veracity of the method by which records are kept. It is this which helps supply the trustworthiness permitting the use of such reports as an exception to the hearsay...