State v. Torres, 6144

• Decision Date: 28 December 1978
• Docket Number: No. 6144,6144
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Darlene Joy TORRES, also known as "Chico", Defendant-Appellant, and Bonnie Lynn Horeses, also known as Bonnie L. Horeses and Bonnie Lynn Rathburn, Defendant.
• Court: Hawaii Supreme Court

Page 83

589 P.2d 83

60 Haw. 271

STATE of Hawaii, Plaintiff-Appellee, v. Darlene Joy TORRES, also known as "Chico" Defendant-Appellant, and Bonnie Lynn Horeses, also known as Bonnie L. Horeses and Bonnie Lynn Rathburn, Defendant.

No. 6144.

Supreme Court of Hawai'i.

Dec. 28, 1978.

Syllabus by the Court

1. Generally, x-ray photographs, like ordinary photographs, are admissible in evidence when relevant and properly verified.

2. Whether or not an x-ray photograph has been sufficiently verified so as to warrant its admission in evidence is a matter within the sound discretion of the trial judge.

3. Hospital records, including x-rays made and kept in the regular course of the hospital's business, are admissible into evidence as business records where qualified in accordance with the applicable business record statute.

4. Where prejudice is shown, it is reversible error to permit a witness to interpret an x-ray photograph without proof that he is qualified as an expert in the reading of the same.

5. The determination of whether or not a witness is qualified as an expert in a particular field is largely within the discretion of the trial judge and, as such, will not be upset absent a clear abuse of discretion.

6. Upon a showing of sufficient training and experience in the interpretation of x-ray photographs, one may testify as to what is shown on x-ray photographs in evidence.

7. Once qualified as an expert in a particular field, the witness' knowledge of the subject matter affects the weight, rather than the admissibility, of his testimony.

Ronald M. Yonemoto, Deputy Public Defender, Honolulu, for defendant.

Ralph R. LaFountaine, Deputy Pros. Atty., Honolulu, for plaintiff-appellee.

Before RICHARDSON, C. J., KOBAYASHI, OGATA, and MENOR, JJ., and Retired Justice MARUMOTO in place of KIDWELL, J., absent.

RICHARDSON, Chief Justice.

Defendant, Darlene Joy Torres (hereinafter appellant), appeals from a conviction for attempted murder in violation of HRS § 705-500 (1976) and HRS § 707-701 (1976). We affirm.

On July 9, 1975, an Oahu grand jury returned a two-count indictment against appellant and one Bonnie Lynn Horeses. The indictment charged appellant with the attempted murder of one Cornel Lucas and charged Horeses with the murder of one Ronald Elesarke. A joint jury trial commenced on January 19, 1976, wherein appellant and Horeses were each represented by separate counsel. From the testimony adduced at trial, the following background was developed.

Both Lucas and Elesarke were shot in a downtown Honolulu hotel during the early morning of July 3, 1975. According to the testimony of Lucas, the surviving victim, Elesarke had been shot and killed with a .38 caliber revolver fired by co-defendant Horeses. Lucas further testified that appellant had wounded him with shots fired from a .22 caliber pistol.

Two weapons were recovered at the scene of the alleged offenses: a .38 caliber revolver which appeared to have been fired three times and a .22 caliber pistol which contained eight live rounds, including one round jammed in the firing position. Although the ammunition holder (clip) of the .22 caliber weapon had the capacity to hold twelve rounds, there was no evidence indicating whether or not the pistol had actually been fired on the morning in question.

During the course of investigation, two .38 caliber projectiles were positively Immediately after the shooting incident, Lucas was taken to a nearby hospital where his injuries were attended to. At trial, Lucas' treating physician testified that Lucas had probably sustained wounds from three different shots: "One through and through the left arm. One through and through the right hand. And one entered the left abdomen." The bullet that entered his left abdomen did not exit through his body as the other two appeared to have, and x-rays ordered by the treating physician revealed a bullet-shaped object resting near Lucas' spine. An attempt to surgically remove this object was abandoned and it was never positively identified as being fired from either weapon recovered. Upon cross-examination, the treating physician admitted that Lucas' three wounds could have been caused by one bullet instead of three.

identified as having been fired at the deceased victim from the revolver recovered at the scene. On January 15, 1976, over six months after the shooting incident, a third projectile was recovered from a wall in the room in which the shooting allegedly occurred. However, subsequent ballistics analysis was unable to link this projectile with either the .38 caliber revolver or the .22 caliber pistol. No identifiable .22 caliber projectiles were ever recovered from the scene.

During its case-in-chief, the prosecution proffered numerous x-ray photographs purporting to show the object lodged in Lucas' body. Since the prosecution was unable to recover and identify any .22 caliber projectiles from the scene, these x-rays were of critical corroborative value insofar as they tended to prove that Lucas had as he had testified in fact been shot by a .22 caliber weapon.

In an attempt to authenticate this evidence the prosecution called the chief x-ray technologist at the hospital where Lucas had been treated. She testified, Inter alia, that: 1) she was responsible for recordkeeping and supervising x-ray technicians; 2) the x-rays in question were taken at the request of the physician treating Lucas; 3) based on the notations that appeared on the x-rays themselves, it was evidence that they were taken of Lucas on July 3rd, 8th and 10th, 1975; and 4) although she had not taken the photographs nor had she been present at the time they were taken, she assumed that proper procedures of x-ray mechanics were followed. The witness further testified as to the various angles and distances from which the x-ray photographs of Lucas were taken based on her actual inspection of the photographs and her knowledge of standard x-ray procedures.

Appellant Torres objected to the admission of the x-ray photographs on the ground that the state had failed to lay a sufficient factual foundation. In particular, the appellant argued that the x-rays could not be properly authenticated without calling the technician who took them to testify as to the subject depicted therein and the manner in which they were taken. Over this objection, the x-rays were admitted into evidence.

The prosecution's next witness was a doctor specializing in forensic pathology. After testifying as to his expertise in matters pertaining to the removal of bullets from bodies and the calibers of various bullets, and as to his familiarity with x-rays, x-ray photography and the identification of bullets as shown on x-ray photographs, the witness was allowed to conclude that the object appearing on the x-rays taken of Lucas was "most likely" a .22 caliber bullet. ¹ Thereafter, appellant unsuccessfully moved to have this testimony stricken.

On January 24, 1976, the jury found appellant Torres guilty of attempted murder Appellant urges this court to reverse her conviction on the grounds that (1) the x-ray photographs purporting to show an object lodged in Lucas' body were erroneously admitted by the trial court and (2) it was improper for the trial court to allow the forensic pathologist to give his expert opinion as to the caliber of the bullet-like object appearing on said x-ray photographs.

                and, subsequently, she was sentenced to imprisonment for a term of twenty years.  2  This instant appeal followed
                

ADMISSIBILITY OF X-RAY PHOTOGRAPHS

It has been generally recognized that x-ray photographs, like ordinary photographs, are admissible in evidence when relevant and properly verified. 3 C. Scott, Photographic Evidence § 1251 (2d ed. 1969). Whether or not an x-ray photograph has been sufficiently verified so as to warrant its admission in evidence is a matter within the sound discretion of the trial judge. See, e. g., Sim v. Weeks, 7 Cal.App.2d 28, 45 P.2d 350, 356-57 (1935); Kramer v. Henely, 227 Iowa 504, 288 N.W. 610, 611 (1939); Clark v. Reising, 341 Mo. 382, 107 S.W.2d 33, 35 (1937).

Hospital records, including x-rays made and kept in the regular course of the hospital's business, have been found to be admissible into evidence as business records where qualified in accordance with the applicable business record statute. See Rouse A record of an act, condition, or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition, or event, and if, in the opinion of the court or person having authority to hear, receive and examine evidence, the sources of information, method, and time of preparation were such as to justify its admission.

v. Fussell, 106 Ga.App. 259, 126 S.E.2d 830 (1962); Allen v. St. Louis Public Service Company, 365 Mo. 677, 285 S.W.2d 663 (1956); Dana v. Von Pichl, 39 App.Div.2d 744, 332 N.Y.S.2d 368 (1972). HRS § 622-5 (1976), the statute governing the use of business records as evidence, provides:

The term "business" includes every kind of business, profession, occupation, calling, or operation of institutions, whether carried on for profit or not.

Here, we believe that the statutory requirements for admissibility were met. The testimony of the chief x-ray technician sufficiently established that the photographs were of Lucas and adequately described how they were taken. Moreover, it is evident that the x-rays in question were prepared in the ordinary course of the hospital's operations and near the time of the alleged shooting incident.

Under these circumstances, we see no reason to require, as appellant urges, that the prosecution call the x-ray technician who actually took the photographs to testify. To do so would seem to defeat the purpose of the business record statute. ³ Allen v. St....