Reynolds v. State

MURPHY, Judge. Richard George Reynolds, appellant, was convicted by a jury in the Circuit Court for Prince George’s County (Hon. Graydon S. McKee III, presiding) of child abuse, fourth degree sex offense, assault and battery. He has appealed those convictions, and presents four issues for our review: 1. “Did the Trial Court err in ruling that § 9-109 of the Courts and Judicial Proceedings Article, Annotated Code of Maryland prohibited testimony of the complaining witness’s psychiatrist and psychologist on behalf of the Defendant? 2.

Did the admission by the Trial Court of the medical records of the complaining witness’s stay in Psychiatric Unit of Anne Arundel General Hospital, over the objection of the Defendant, violate his right of confrontation under the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights? ³⁵⁵ 3. Did the Trial Court err in allowing the State’s expert to opine that the complaining witness’s post traumatic stress disorder was the result of long term physical and sexual abuse? 4. Did the Trial Court err in refusing to grant a mistrial when it denied Defendant’s Motion to strike the testimony of (the victim) or, in the alternative, stay proceedings to allow perjury prosecution of the complaining witness, when the complaining witness admitted that she had committed perjury at a previous hearing?” Issue 1 has not been preserved for our review because there was no proffer of what the witnesses would have said if they had been permitted to testify. Issue 3 has not been preserved for our review because there was no objection to the opinion when it was expressed at trial.

Issue 4 is utterly without merit. Issue 2, however, has been preserved and does have merit. We shall first explain why the admission of certain entries in the hospital record violated appellant’s right of confrontation, and shall then address discovery and impeachment issues that are certain to arise during the retrial. BACKGROUND The complaining witness, whom we shall refer to as the patient, is appellant’s daughter.

She alleged that she had been sexually abused for over ten years, but did not report the abuse to any law enforcement officer until almost one year after it had stopped. Appellant, the patient, and other members of their severely dysfunctional family had been treated for several years by many health care professionals, including Merrill Rasmussen, a psychologist. Before trial, the patient signed the following waiver so the State could obtain her mental health records. “TO WHOM IT MAY CONCERN: Please release my medical and psychiatric records to the State’s Attorney’s Office for Prince George’s County, Maryland.” ³⁵⁶ The State’s case-in-chief included expert testimony from Dr. Nancy Davis, a psychologist whose opinions were based entirely on information supplied by the patient during two pretrial interviews. Dr. Davis testified that the patient suffered from a post traumatic stress disorder as a result of long term physical and sexual abuse.

Dr. Rasmussen did not testify. The patient’s direct examination included testimony about statements she made to physicians, psychologists, and hospital personnel at several institutions over a period of many years. She testified about having attempted suicide, described various mental disorders she suffered from, discussed the treatment she had received, identified drugs that had been prescribed for her, and explained why she had not reported the abuse earlier. In an effort to corroborate the patient’s testimony, the State offered into evidence records of her in-patient treatment during an admission to the Anne Arundel General Hospital.

I Defense counsel offered two reasons why the admission of certain entries in the hospital record would violate appellant’s right of confrontation guaranteed by the sixth amendment of the United States Constitution, and by Article 21 of the Maryland Declaration of Rights: (1) he could not cross examine the hospital personnel who had recorded various statements made by the patient; and (2) he could not cross examine the health care providers whose evaluations and conclusions were contained in the records. The trial judge reviewed the records entry by entry, and overruled the objection to entries that were relevant to diagnosis and treatment. The portions admitted over appellant’s confrontation objection included (a) progress notes, (b) evaluation worksheets, (c) treatment plans, (d) consultation reports and (e) a discharge summary. In addition to statements made by the patient, the records revealed (1) that she was “allegedly positive for possible sexual child abuse by the Dad ...;” (2) that one doctor “believes” she is suicidal and “questions that ³⁵⁷ patient may have been abused” by her father; (3) that the treatment plan should include techniques designed to “encourage openness about sexual abuse ...;” (4) that the patient may have been “using food as a transference of feelings about father;” (5) that one doctor who observed her “sitting on lap of father in her room ... felt it was inappropriate ...;” and (6) that she “seems to be gaining insight into the need to ... discuss issue of sexual abuse.” We agree with the trial judge that appellant did not have a right to confront the hospital personnel who merely recorded the statements made by the patient.

The patient testified and was cross-examined vigorously. The persons who merely wrote down what she said had a “business duty” to record her statements accurately. We are persuaded that cross-examination of these persons would have been pointless. The confrontation clause does not operate to exclude hearsay evidence that fits into the well recognized and “firmly rooted” hospital record exception to the rule against hearsay.

White v. Illinois, -U.S. -, -n. 8, 112 S.Ct. 736 , 742 n. 8, 116 L.Ed.2d 848 (1992). Because the patient testified at trial, the trial judge did not err in admitting those portions of the record that included statements made by the patient during her hospitalization. The entries that contain evaluations and conclusions, however, present an entirely different issue. On two occasions, this Court has held that the defendant’s right of confrontation was violated by the introduction of Clifton T. Perkins Hospital records that contained opinions of evaluating psychiatrists who were not called to testify at trial.

Gregory v. State, 40 Md.App. 297, 325-328 , 391 A.2d 437 (1978); Ward v. State, 76 Md.App. 654, 659-662 , 547 A.2d 1111 (1988). The State argues that Gregory and Ward should be limited to evaluative reports in the records of the Clifton T. Perkins Hospital, and should not be applied to hospital records that “report matters relating to (the victim’s) treatment and are reliable in this respect.” We disagree. ³⁵⁸ The hearsay exception for hospital records extends to everything in the hospital record that is “pathologically germane” (i.e., relevant) to diagnosis and treatment. As a general rule, the confrontation clause does not require exclusion of hospital records that contain objective scientific findings, such as the results of a blood test. State v. Garlick, 313 Md. 209, 215 , 545 A.2d 27 (1988).

On the other hand, a defendant’s right of confrontation is offended by the introduction of blood test results contained in a hospital record if, on the face of the record, there is a substantial question about the reliability of the results reported therein. Moon v. State, 300 Md. 354, 370-371 , 478 A.2d 695 (1984). The same principle must be applied to opinions. The right of confrontation is offended by the introduction of an opinion contained in a hospital record if, on the face of the record, the opinion is too ambiguous to be helpful, or appears to lack an adequate factual basis.

Opinions contained in a hospital record are not excluded under the rule against hearsay. They are, however, subject to the foundational requirements that apply to expert testimony. For an opinion to be admitted through a hospital record it must appear from the record itself that the person who expressed the opinion is qualified to do so. Marlow v. Cerino, 19 Md.App. 619, 636 , 313 A.2d 505 (1974).

It must also appear from the record itself that there is an adequate factual basis for the opinion. If the factual basis for the expert’s opinion is inadequate as a matter of law, the opinion is inadmissible. Bohnert v. State, 312 Md. 266, 278 , 539 A.2d 657 (1988); Hartless v. State, 327 Md. 558, 578-579 , 611 A.2d 581 (1992); B & K Rentals v. Universal Leaf, 84 Md.App. 103, 121 , 578 A.2d 274 (1990) rev’d. on other grounds, 324 Md. 147 , 596 A.2d 640 (1991); Globe Security Sys. v. Sterling, 79 Md.App. 303, 308 , 556 A.2d 731 (1989); Keen Corp. v. Hall, 96 Md.App. 644, 660 , 626 A.2d 997 (1993). An opinion that would be excluded with the expert on the witness stand cannot be admitted into evidence because it has been entered in a hospital record. ³⁵⁹ On three occasions, this Court has held that the trial judge correctly sustained the State’s objection to hospital records offered by defense counsel.

Tenterman v. State, 61 Md.App. 257 , 486 A.2d 233 (1985); Cirincione v. State, 75 Md.App. 166 , 540 A.2d 1151 (1988); Clarke v. State, 97 Md.App. 425 , 630 A.2d 252 (1993). In each case, the record was properly excluded as inadequate on its face. The right of confrontation that appellant asserted in this case is identical to the State’s right to obtain the exclusion of defense evidence that lacks a proper foundation. In Testerman, the defense attempted to establish that the rape victim was suffering from schizophrenia.

The trial judge sustained the State’s objection to hospital records that reported her condition as “Schizophrenia. Schizo-defective type depressed.” We affirmed this ruling because the defense failed to produce expert testimony that explained how this type of mental disorder would affect the victim’s credibility. 61 Md.App. at 267-268 , 486 A.2d at 238 . In Cirincione , the defense attempted to establish that, at the time his conduct caused the death of a traffic officer, the defendant “was voluntarily intoxicated on PCP.” The trial judge sustained the State’s objection to hospital records reporting that three doctors had reached that very opinion. We held that the trial judge was correct: “The appellant will not be permitted to get four expert opinions for the price of one.

The proffered opinion that ‘he was voluntarily intoxicated,’ moreover, were too ambiguous to be helpful. How intoxicated?____ Probing cross-examination was indispensable.” 75 Md.App. at 183-184 , 540 A.2d at 1160 . In Clarke , the defense attempted to establish that the assault victim’s perception and recollection had been impaired by the use of drugs. The trial judge sustained the State’s objection to hospital records reporting the victim’s blood test results as “presumptive positive” for the presence of marijuana.

We affirmed this ruling because the defense failed to produce expert testimony that explained the meaning of the ³⁶⁰ term “presumptive positive.” 97 Md.App. at 431 , 630 A.2d at 255 . In Gregory , Chief Judge Wilner pointed out that the court must look more closely at the disputed document itself. What evidence is contained in it? For what purpose is it offered?

Does the statement in it relate directly and critically to the defendant’s guilt ... ? Is the document primarily the recordation of a fact as easily and reliably proven by the document itself ... ? If testimonial in nature, why is the author ... not in court? Is the information ... of a type that ... its mere recordation ... lends a sufficient reliability to it to be acceptable as trustworthy evidence? 40 Md.App. at 326 , 391 A.2d at 454 .

The entries introduced over appellant’s objection were offered to prove that various health care providers concluded, that the patient had been abused by appellant. It appears from the record that these opinions were based on nothing more than a belief that the patient’s accusation was true and appellant’s denial was false. If that is the basis for these opinions, they should have been excluded for lack of a legally adequate basis: “It is the settled law of this State that a witness, expert or otherwise, may not give an opinion on whether he believes a witness is telling the truth. Testimony from a witness relating to the credibility of another -witness is to be rejected as a matter of law.” Bohnert, supra, 312 Md. at 278 , 539 A.2d at 663 .

When defense counsel interposes a timely “confrontation” objection to hospital records containing opinions that are ambiguous or that appear to lack an adequate factual basis, such opinions cannot be admitted into evidence without testimony that clarifies the ambiguity or demonstrates that there is an adequate basis. If defense counsel had been given an opportunity to confront the declarants whose opinions were contained in the hospital records, opinions lacking an adequate basis would have been excluded. We conclude that the opinions do appear to be based on an inadequate foundation and ³⁶¹ that, under the circumstances, cross-examination of the health care providers would not have been unavailing, pointless or frivolous. We hold that appellant had a right to confront the health care providers whose evaluations and conclusions were introduced through the hospital record.

There is an additional reason why the trial judge should have excluded a statement attributed to appellant’s wife. According to the Discharge Summary, appellant’s wife “says that she can believe her husband might be guilty ... that he is emotionally abusive ... and physically abusive as well ...” This belief was inadmissible even if the out-of-court declarant were present at trial. Brafman v. State, 276 Md. 676, 680 , 849 A.2d 632 (1976). We are unable to declare that appellant was not prejudiced by the records admitted over his timely objection.

He is entitled to a new trial. II For the guidance of the parties and the trial judge, we shall address the privilege and privacy issues that are certain to arise during the retrial. Appellant made a pretrial request to inspect all of the patient’s mental health records. That request was properly denied.

The defendant is not entitled to a patient’s records merely because the patient takes the witness stand. Avery v. State, 15 Md.App. 520, 536 , 292 A.2d 728 (1972), cert. denied, 266 Md. 733 ; Oliver v. State, 53 Md.App. 490, 499 , 454 A.2d 856 (1983), cert. denied, 296 Md. 61 (1983). Appellant contends that his defense counsel must be given an opportunity to inspect the patient’s mental health records at an expanded in camera hearing. For this proposition he relies upon Zaal v. State, 326 Md. 54 , 602 A.2d 1247 (1992) and Pennsylvania v. Ritchie, 480 U.S. 39 , 107 S.Ct. 989 , 94 L.Ed.2d 40 (1987).

We do not agree that those cases support that argument. The records at issue in Zaal were made confidential by a regulation that provided for their release in compliance with “a judicial order or lawfully issued subpoena.” 326 Md. at 61 -62 n. 1, 602 A.2d at 1250 n. 1. The records at ³⁶² issue in Ritchie were made confidential by a statute that provided for their release “pursuant to a court order.” 480 U.S. at 43 n. 2, 107 S.Ct. at 994 n. 2. The records at issue in this case are made privileged by Md.Code Ann., Cts. & Jud.Proc. § 9-109 (1974, 1989 Repl.Vol., 1993 Cum.Supp.) (hereinafter C.J. 9-109).

That statute does not contain a provision for the release of records containing information about privileged communications. It provides in pertinent part: “(b) Privilege generally. — Unless otherwise provided, in all judicial, legislative, or administrative proceedings, a patient or his authorized representative has a privilege to refuse to disclose, and to prevent a witness from disclosing, communications relating to diagnosis or treatment of the patient’s mental or emotional disorder. (d) Exclusion of privilege. — There is no privilege if: (1) A disclosure is necessary for the purposes of placing the patient in a facility for mental illness; (2) A judge finds that the patient after being informed there will be no privilege, makes communications in the course of an examination ordered by the court and the issue at trial involves his mental or emotional disorder; (3) In a civil or criminal proceeding: (i) The patient introduces his mental condition as an element of his claim or defense; or (ii) After the patient’s death, his mental condition is introduced by any party claiming or defending through or as a beneficiary of the patient; (4) The patient, an authorized representative of the patient, or the personal representative of the patient makes a claim against the psychiatrist or licensed psychologist for malpractice; (5) Related to civil or criminal proceedings under defective delinquency proceedings; or ³⁶³ (6) The patient expressly consents to waive the privilege, or in the case of death or disability, his personal or authorized representative waives the privilege for purpose of making claim or bringing suit on a policy of