Bryant v. State

THIEME, Judge. Appellant William Bryant was convicted by a jury in the Circuit Court for Baltimore County of homicide by motor vehicle while under the influence of alcohol, driving under the influence of alcohol, negligent driving, driving at unreasonable ⁶⁹² speed and failure to control speed. 1 The court sentenced appellant to one year imprisonment and a $1,000.00 fine for homicide by motor vehicle while under the influence of alcohol, and merged the lesser included offenses for sentencing purposes. Appellant appeals from his convictions and presents the following questions, which we have slightly rephrased, for our review: 1. Did the trial court err in admitting the results of a toxicology report into evidence as a business record? 2.

Did the trial court give an erroneous jury instruction on the crime of homicide by motor vehicle while under the influence of alcohol? We answer “yes” to question 1 and do not reach question 2. Facts At approximately 1:30 a.m. on August 12, 1994, 2 appellant was driving a Chrysler Conquest northbound on Interstate 95 in the White Marsh area. Gertrude O’Boyle was the sole passenger in the vehicle.

The Conquest passed a vehicle in front of it, in which Brian Shillman and Mark Williams were traveling, and then returned to the lane in front of Shillman and Williams. Shillman estimated that the Conquest was traveling between 70 and 75 miles per hour. Williams estimated that the Conquest’s speed was between 75 and 80 miles per hour. Shillman described what happened after the Conquest passed their vehicle: We were behind [the Conquest] maybe for a good half mile, three quarters of a mile....

Then we just saw tail lights go towards the center wall, a bunch of small car parts and debris kind of flying everywhere. ⁶⁹³ Williams, who was driving, stopped his vehicle. Shillman and Williams then approached the Conquest to see if the people inside were injured. Police and emergency medical personnel were contacted. Jennifer Jordan, a paramedic, arrived at the collision site and was directed to take care of appellant, who was sitting in the driver’s seat of the Conquest.

O’Boyle was being tended to by personnel from another ambulance. Jordan testified that appellant was “having difficulty remembering the incident as far as what had occurred and things like that, just his speech seemed a little bit that he had been drinking, seemed a little bit slow to respond.” She also noticed an odor of alcohol from appellant’s breath, so she asked him whether he had been drinking. Appellant reported that he had had two California iced teas that evening. When Sergeant Denard Allen of the Maryland State Police arrived at the scene of the collision, he found appellant in his car attempting to wake up O’Boyle.

Sergeant Allen noticed “a strong odor of an alcoholic beverage coming from the interior of the vehicle.” He could not tell whether the odor was emanating from the driver or O’Boyle. Sergeant Allen asked appellant whether he had been drinking, and appellant said he had had a beer during the day. Because appellant was complaining of chest injuries, Sergeant Allen did not ask appellant to perform any field sobriety tests. Sergeant Allen further testified that the speed limit on the stretch of road where the collision occurred was 55 miles per hour.

Using a diagram he made of the collision, Sergeant Allen explained that the road had in the area of the collision four lanes in each direction. The diagram depicted appellant’s car moving from the far left lane two lanes to the right, then crossing the two left lanes to hit the Jersey wall head-on. Appellant and O’Boyle were transported to the University of Maryland Shock Trauma Unit. O’Boyle died as a result of the injuries she sustained in the collision.

Appellant was treated and released on the morning of the collision. ⁶⁹⁴ Discussion I. Admission of Toxicology Report as a Business Record Appellant argues that the trial court erred by admitting evidence of his blood alcohol test results in violation of Maryland Rule 5-902. Specifically, appellant contends that the toxicology report was not admissible under the business records exception to the hearsay rule because it was not authenticated in the manner required by the rule. We agree. 3 Background Dr. Barry Levine, the Chief Toxicologist for the Office of the State Medical Examiner, testified for the State as an expert in forensic toxicology. He testified that his primary functions are overseeing the alcohol and drug analysis on postmortem cases, as well as overseeing the State’s alcohol testing program for breath and blood.

The State showed Dr. Levine a copy of a toxicology report, which he identified as one used by the University of Maryland Medical System for toxicology screens. The report had appellant’s name on it, indicated that a blood sample had been taken at 8:10 a.m. on August 12, 1994, and that the tests were completed at 2:45 a.m. on August 16, 1994. Over appellant’s objection, Dr. Levine further testified that, according to the report, the alcohol concentration in appellant’s blood at the time of the test was .216. 4 Dr. Levine then testified, still over ⁶⁹⁵ appellant’s objections, about the effects that such a blood alcohol concentration would have on an individual’s driving ability. Attached to the front of the toxicology report was a cover letter signed by the Director of Medical Record Services and the Custodian of Records for the University of Maryland Medical System.

The letter read as follows: This is to certify that the enclosed medical records are an accurate reproduction of the medical records pertaining to patient WILLIAM BRYANT, which are created and kept during the normal course of business. These records are housed in the Medical Record Services Department of the University of Maryland Medical System from the time of patient discharge or release. Both inpatient and outpatient records are housed in one medical record. To the best of my knowledge, these are the complete medical records of this patient.

The toxicology report was admitted into evidence over appellant’s objection. Trial recessed for the day after Dr. Levine’s cross-examination. The next morning, defense counsel again objected to the admission of the report, arguing, inter alia, that the certification of the record was not authenticated in accordance with Maryland Rule 5-902(a)(ll), pertaining to business records. 5 Counsel pointed out that nothing in the report established that the “William Bryant” named in the document was the same William Bryant on trial. Moreover, there was no testimony or evidence indicating that the report was prepared “at or near the time of the occurrence of the matters set forth” as required by the rule. ⁶⁹⁶ The State responded that the certification made by the custodian of records was sufficient authentication for admissibility.

The court overruled appellant’s objection, stating: I find that the cover letter from the University of Maryland Medical System dated September 19, 1994, is sufficient authentication of the toxicology report. I also find that the Jury could certainly infer that the William Bryant listed on the toxicology report is the same William Bryant who is a Defendant in this case. As I mentioned earlier, the blood specimen was received on August 12, 1994, which, of course, was the date of this accident. You couple that with the testimony of the para[medic], Ms. [Jordan], that she treated the Defendant at the scene, she has identified the Defendant, she accompanied him to the Shock Trauma and then filled out her forms.

So I think certainly there’s sufficient evidence from which the Jury could infer that the William Bryant listed on the toxicology report is the Defendant. I find that State’s Exhibit One, the toxicology report, is a business record under Langway vs. State, 94 Md.App. 407 , 617 A.2d 1117 .[ 6 ] I find that there has been testimony by Doctor Levine that this report was kept in the regular course of business and that the toxicology screen of the Defendant’s blood was pathologically germane to treatment and I believe that satisfies the requirements set forth in State vs. Garlick, 313 Md. 209 , 545 A.2d 27 , and supports the admissibility of State’s Exhibit One. Authentication Business records are not admissible until they have been properly authenticated, either through a testifying sponsor or in conformity with Md. Rule 5-902(a). See, e.g., Foreman v. State, 125 Md.App. 28, 36 , 723 A.2d 912 (1999).

Rule ⁶⁹⁷ 5-902(a)(ll), which specifically addresses business records, provides: Certified records of regularly conducted business activity. The original or a duplicate of a record of regularly conducted business activity, within the scope of Rule 5-803(b)(6), which the custodian or another qualified individual certifies (A) was made, at or near the time of the occurrence of the matters set forth, by (or from information transmitted by) a person with knowledge of those matters, (B) is made and kept in the course of the regularly conducted business activity, and (C) was made and kept by the regularly conducted business activity as a regular practice, unless the sources of information or the method or circumstances of preparation indicate lack of trustworthiness.... Even if Dr. Levine’s testimony sufficiently established that the toxicology report was the type of record kept by the University of Maryland Medical System in the regular course of business, and even if the jury could infer that the “William Bryant” named on the document was appellant, the evidence was still insufficient to satisfy Rule 5-902(a)(11). Neither Dr. Levine’s testimony nor the cover letter attached to the toxicology report indicated when the report was made; thus, there was no evidence that the report was made at or near the time of the test. 7 Moreover, there was no indication in the cover letter, Dr. Levine’s testimony, or the report itself as to who prepared the report.

Without this information, there was no evidence that the report was made by a person with knowledge of the test results as required by Rule 5-902(a)(11). The