State v. Bryant

⁴²² RAKER, Judge. We granted the State’s petition for certiorari in this case primarily to determine the requirements under Maryland Rule 5-902(a)(ll) for the admissibility of hospital records as certified records of regularly conducted business activity without the in-court testimony of the hospital records custodian. We agree with the Court of Special Appeals that the toxicology report was not properly authenticated, and accordingly we shall affirm. Respondent was convicted 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 speed, and failure to control speed.

The Circuit Court sentenced Bryant to a term of imprisonment of one year and a fine of $1000 for homicide by motor vehicle and driving while under the influence of alcohol. The trial court merged the remaining convictions for sentencing purposes. Bryant noted a timely appeal to the Court of Special Appeals. The intermediate court reversed Respondent’s convictions for homicide by motor vehicle while under the influence of alcohol and driving under the influence of alcohol, see Bryant v. State, 129 Md.App. 690 , 743 A.2d 814 (2000), holding that a toxicology report had been improperly admitted in evidence under the business records exception to the hearsay rule, Maryland Rule 5-803(b)(6).

The Court of Special Appeals held that the toxicology report was inadmissible on two grounds: first, that it did not meet the requirements of Maryland Code (1973, 1998 Repl.Vol., 2000 Supp.) § 10-306 of the Courts and Judicial Proceedings Article regarding the admissibility of test results without the testimony of the technician; and, second, because it was not authenticated in the manner required by the self-authentication rule, Rule 5-902(a)(ll). See Bryant, 129 Md.App. at 699 , 743 A.2d at 819 . ⁴²³ We granted certiorari to clarify the requirements of Rule 5-902(a)(ll) allowing hospital records to be admitted as certified records of regularly conducted business activity without the in-court testimony of the hospital records custodian and to reiterate that § 10-306 is not applicable to hospital records like those in this case. 1 At approximately 1:30 a.m. on August 12,1994, Respondent, William Dunlock Bryant, was driving northbound on Interstate 95 near White Marsh, along with one passenger, Gertrude O’Boyle. The speed limit on that particular stretch of highway was fifty-five miles per hour and there were four lanes of traffic in each direction. Respondent passed another vehicle traveling in his lane, containing Mark Williams, the driver, and Brian Shillman, a passenger.

Shillman estimated that Respondent was driving between seventy and seventy-five miles per hour. Williams estimated that Respondent was driving between seventy-five and eighty miles per hour. According to Shillman, approximately one-half to three-quarters of a mile later, the tail lights of Respondent’s car veered toward the center wall, and the car crashed in a spray of debris. Police Sergeant Denard Allen arrived at the scene and found Respondent in his car attempting to awaken O’Boyle.

Sergeant Allen testified that there was a strong odor of alcohol coming from the interior of the vehicle, although he could not tell whether it was coming from Respondent or O’Boyle. Sergeant Allen asked Respondent if he had been drinking, and Respondent responded that he had had a beer ⁴²⁴ during the day. Because Respondent was complaining of chest injuries, Sergeant Allen did not ask him to perform any field sobriety tests. A paramedic, Jennifer Jordan, arrived at the scene of the accident and began to care for Respondent, who was still seated in the driver’s seat of the car.

Paramedics from another 'ambulance were attending to O’Boyle. Jordan testified that Respondent had difficulty remembering the events of the accident, that his speech seemed as if he had been drinking, and that he seemed a little bit slow to respond. She noticed that his breath smelled like alcohol and asked him if he had been drinking. Respondent responded that he had had two “California iced teas” that evening.

Respondent and O’Boyle were transported to the University of Maryland Shock Trauma Unit. A sample of Respondent’s blood was taken at 3:10 a.m. for a-toxicology screen. Respondent was treated and released on the morning of the accident. O’Boyle died as a result of her injuries.

On December 11, 1998, Respondent 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 speed, and failure to control speed. The jury found Respondent not guilty of automobile manslaughter, homicide by motor vehicle while intoxicated, driving while intoxicated, reckless driving, and unsafe lane change. At trial, the State introduced a toxicology report from the University of Maryland Medical System. The report had Respondent’s name on it, and it indicated that the blood specimen had been received on August 12, 1994 at 3:10 a.m. and that testing had been completed on August 16, 1994 at 2:45 a.m.

The toxicology report showed a blood alcohol concentration of 216 milligrams per deciliter. 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, which read as follows: ⁴²⁵ 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. Defense counsel argued that the custodian’s statement was insufficient to form a proper foundation for authentication as a business record under Rule 5-902 and that the document did not contain sufficient identifying information to establish Respondent as the patient to whom the report referred. Over defense counsel’s objection, the trial court admitted the toxicology report as a business record. The court found that the cover letter from the University of Maryland Medical System was sufficient authentication of the toxicology report and that the testimony of Dr. Barry Levine, Chief Toxicologist for the Maryland Office of the Chief Medical Examiner, was sufficient to establish that the report was kept in the regular course of business, that the toxicology screen of Respondent’s blood was pathologically germane to treatment, and, thus, that the requirements of admissibility were established.

Petitioner argues that the custodian’s certification of the toxicology report in this case, along with its contents, constituted a sufficient evidentiary foundation to authenticate it properly as a business record. Petitioner maintains that the custodian was qualified to authenticate the contents of the report — that she could attest to the time that the report was made and had sufficient personal knowledge of the matters that it contained. Petitioner also maintains that the report itself contains evidence that it was timely, made by a person with knowledge of its matters, and kept consistent with the hospital’s regular course of business. ⁴²⁶ Respondent counters that the report was not adequately authenticated with respect to the time that it was made, the person who made it, and the form of the certification provided by the hospital records custodian. He also argues that the trial judge’s admission of the toxicology report in evidence without proper foundation or indicia of reliability denied him his right of confrontation.

Resolution of the issues presented in this case requires us to consider two related rules of evidence — Rule 5-803(b)(6) and Rule 5-902(a)(ll). Rule 5-803 sets forth several exceptions to the rule excluding hearsay that do not require the unavailability of the declarant in order for the declaration to be admissible. Rule 5 — 803(b)(6) addresses the business records exception to the hearsay rule. That rule states as follows: The following are not excluded by the hearsay rule, even though the declarant is available as a witness____A memorandum, report, record, or data compilation of acts, events, conditions, opinions, or diagnoses if (A) it was made at or near the time of the act, event, or condition, or the rendition of the diagnosis, (B) it was made by a person with knowledge or from information transmitted by a person with knowledge, (C) it was made and kept in the course of a regularly conducted business activity, and (D) the regular practice of that business was to make and keep the memorandum, report, record, or data compilation.

A record of this kind may be excluded if the source of information or the method or circumstances of the preparation of the record indicate that the information in the record lacks trustworthiness. Rule 5 — 803(b)(6). The authenticity requirements for the admissibility of a business record are set forth within the rule as (A) through (D). There are two ways that the necessary evidentiary foundation for admitting business records may be established: by extrinsic evidence (usually live witness testimony) regarding the four requirements of Rule 5-803(b)(6) or by “self-authentication” pursuant to Rule 5-902(a)(ll). ⁴²⁷ Rule 5-902, which was adopted by the Court of Appeals in 1994, sets out the class of records for which extrinsic evidence of authenticity is not a condition precedent to admissibility.

Rule 5-902 was modeled on a 1986 amendment to the Uniform Rules of Evidence, see UnifR.Evid. 902(11), which added a provision for the self-authentication of certified copies of business records. Uniform Rule 902(11) was based on the federal statute providing for the self-authentication in criminal proceedings of certified copies of foreign records of regularly conducted activity. See 18 U.S.C. § 3505 (1988); Lynn McLain, Self Authentication of Certified Copies of Business Records, 24 Baltimore L.Rev. 27, 27-28, 36-37 (1994). It extended the applicability of the certification by affidavit to domestic business records in both criminal and civil proceedings.

See McLain, supra, at 28. Rule 5-902 was designed in the interest of judicial economy to eliminate the need to call foundation witnesses for evidence that is so likely to be authentic that extrinsic evidence is unnecessary. See id. at 32. Rule 5-902(a)(ll) creates an alternative method for authenticating business records without requiring the live testimony of the records custodian.

It allows proof, by certification, of the same facts to which a witness would have been required to testify in court to lay the foundation for the hearsay exception at trial. See id. at 51. That rule provides as follows: The original or 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