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Com. v. Sheldon8/1/1996
Motor Vehicle, Operating under the influence. Evidence, Hospital record, Blood alcohol test, Hearsay.
O'CONNOR, J. The defendant is charged with homicide by negligently operating a motor vehicle while under the influence of an intoxicant in violation of G. L. c. 90, § 24G (b) (1994 ed.), and with operating a motor vehicle while under the influence of an intoxicant in violation of G. L. c. 90, § 24 (1) (a) (1994 ed.). The defendant moved to suppress a hospital record showing the result of a blood test indicating her blood alcohol level was .13. The defendant asserted three grounds in support of her motion: (1) the test constituted an unreasonable search and seizure in violation of the Fourth Amendment to the United States Constitution; (2) publication of the test result would violate her right of privacy afforded by G. L. c. 214, § 1B (1994 ed.), and of confidentiality afforded by G. L. c. 111, § 70E (b) (1994 ed.); and (3) the test result was not made admissible by G. L. c. 233, § 79 (1994 ed.), the statute that excepts certain hospital records from the common law rule against hearsay evidence. Although the motion Judge was not persuaded by the defendant's first two arguments, he concluded that the record of the result of the blood test was not related to the defendant's medical history and treatment within the meaning of those words in G. L. c. 233, § 79, and that therefore that statute did not apply. Based on that reasoning, the Judge allowed the motion to suppress.
A single Justice of this court then allowed the Commonwealth's application for interlocutory appeal. In his memorandum of decision, the single Justice also reported "the question whether, if the blood test results are not admissible under the statute, that ruling automatically bars the admission of the test results presented through the person who conducted the test or the attending physician, or both." We affirm the District Court Judge's exclusion of the hospital record, and we answer the reported question, "No."
The motion Judge's memorandum of decision, under the heading, "Findings of Facts," states the following: "On or about November 22, 1992, at approximately 1 a.m., the defendant, Heather Sheldon was involved in an accident which resulted in the death of her boyfriend, Joe Bowers. On January 8, 1993, the defendant was charged with vehicular homicide while under the influence of liquor pursuant to Mass. Gen. L. ch. 90 § 24G(b).
"Since the facts of the accident are quite unique, a more detailed description of the events is warranted. Earlier in the evening in question, the defendant, Heather Sheldon, and her boyfriend, Joe Bowers, were at a bar. An argument later ensued, resulting in the victim, Joe Bowers, leaving the bar and walking toward his apartment in Rockport. Approximately a half-an-hour later, Heather also left the bar and drove home in her jeep. En route to her apartment, Ms. Sheldon saw her boyfriend hitchhiking. She pulled over and asked him to get in the jeep. He screamed some obscenities and she decided to drive away. A couple of minutes later, the defendant decided to turn back and pick her boyfriend up. She pulled up beside him again and repeated the request that he get in the jeep. This time, Joe Bowers was extremely hostile and began pounding his fists on the jeep.
"What transpired next has been hypothesized by the Rockport police who later reconstructed the accident. The police suggest that when Heather pulled away this second time, to avoid her angry boyfriend, he most likely took a step toward the jeep (perhaps to hit the jeep one last time) and caught his arm on the side view mirror, throwing him to the ground. The victim struck the ground with such force that
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