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Commonwealth v. Flaherty9/7/2004
ce in the context in which it occurred. Commonwealth v. Kilburn, 438 Mass. 356, 360-361 (2003). It did not.
The prosecutor's use of portions of the report was cumulative of Martin's testimony regarding the defendant's demeanor and behavior. During direct examination, Martin testified as to the defendant's "walking very unsteady . . . all over the place" with "a very strong odor of alcohol coming from his breath. His eyes were blood-shot. He was very unsteady on his feet. Again, staggering. And I noticed that he just couldn't stand still." When the defendant started to walk away, the officer had to tell him to stop and return. When asked why he did not stop, the defendant replied, "I was just going to see a friend." When asked who, he responded, "I forget." His performance on the field sobriety tests revealed that the defendant was very unsteady and lost his balance multiple times.
The prosecutor used the report to establish that the defendant's speech was "studdered and confused"; that he was unsteady and had a strong odor of alcohol, and that his clothes looked "mussed and soiled." On direct examination, Martin described the clothes as "messy," "with stains" and "dirty," all points previously testified to.
Under these circumstances we cannot say that there was a substantial risk of a miscarriage of justice, especially since the defense was also able to improperly use the report to its advantage. Given the not guilty verdict on the second charge, it further appears that the jury was able to properly assess its role.
3. The Medical Records
The defendant argues that his hospital records from the night of his arrest should have been admitted as evidence at trial under G. L. c. 233, § 79, as an exception to the hearsay rule. Citing Commonwealth v. Moran, 439 Mass. 482 (2003), the defendant asserts that because the records did not contain any reference or notation to his having been intoxicated, the records were exculpatory.
The trial judge ruled that the defendant's hospital records could not be admitted in evidence without a predicate basis. The judge was concerned that as observations of intoxication were not the focus of the hospital visit, that the records could be misleading. More importantly, counsel was given the opportunity to call hospital personnel as witnesses to testify as to whether there was such an evidentiary basis, and whether the defendant showed signs of having used alcohol earlier that night, to which counsel declined. Lastly, the defendant was arrested at approximately 1:30 A.M., and began complaining of chest pains at around 4:00 A.M., at which point the paramedics were called and the defendant was transported to the hospital, where he remained for "at least an hour, hour and a half." Given the passage of time, and the reasons noted above, as cited by the judge, it was within her discretion to refuse to allow the introduction of the medical records.
Judgment affirmed.
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