DUFFLY, J.
A taxicab driver in Lawrence was robbed at knifepoint by a passenger wearing a hat that covered most of his face; the driver fired his pistol at the fleeing robber, wounding him in the back. Police located the defendant near the scene of the robbery suffering from an apparent gunshot wound to his back, but no witness was able to identify him as the robber. The defendant testified at trial, denying that he was the robber and claiming to have been shot in an unrelated incident by unknown assailants. A Superior Court jury convicted the defendant of armed robbery, G. L. c. 265, § 17. On appeal, the defendant argues that certain statements allegedly made by the fleeing robber were hearsay and should not have been admitted; that a statement attributed to the defendant contained in his medical records ("he was in a taxicab when he got shot") was inadmissible as hearsay; and that, even if not hearsay, the admission of the medical records violated his right to confrontation under the Sixth Amendment to the United States Constitution. We transferred the case to this court on our own motion.
Because we conclude that the trial judge erred in admitting the defendant's medical records under the statutory exception for business records, G. L. c. 233, § 78 (§ 78), and that the disputed portion of the records was not shown to be admissible under the hospital records statute, G. L. c. 233, § 79 (§ 79), we do not reach the defendant's constitutional claim. Determining that the erroneous admission did not prejudice the defendant, however, and that his other claims of error are without merit, we affirm the conviction.
Background. We summarize the facts the jury could have
After driving a few blocks, the man told Rodriguez in Spanish to stop. He then grabbed Rodriguez's head, brandished a knife, and demanded that Rodriguez show him where he kept his money. A brief struggle ensued before Rodriguez brought the taxicab to an abrupt stop. At some point, Rodriguez gestured to the driver's side visor, where he kept his money secured by an elastic band. The robber took the money from the visor; he then left the taxicab and ran in the direction of a bridge underpass located at the intersection of Parker and Market Streets.
Rodriguez got out and pulled a .40 caliber pistol from his waistband.
Christian, who initially did not realize what was happening, remained in the taxicab throughout the encounter, and attempted to reach Lawrence police on his cellular telephone. Michael Caraballo, another taxicab driver who worked for the same company as Rodriguez, drove by Rodriguez's taxicab just after it had come to a stop. Caraballo and Wilfredo Colon, Caraballo's passenger, both saw Rodriguez struggling with the front-seat passenger. Caraballo pulled over near the bridge at Parker
Caraballo and Colon observed Rodriguez get out of his taxicab and fire his gun at the robber as the man ran toward the bridge. Rodriguez, Caraballo, and Colon each heard the man exclaim and indicate that he had been hit.
Responding to a radio broadcast regarding the incident, Officer Eric Cerullo of the Lawrence police department reached the area less than five minutes after the shooting. He drove around the area in search of the robber, who had been described as a light-skinned Hispanic male in a black leather jacket. Cerullo passed Market Street and turned onto Springfield Street. He had traveled between thirty yards and forty yards when he observed the defendant emerge from an alley between two houses and wave for help. The defendant was wearing a light shirt and no jacket. A Lawrence detective, who also had been in the area, drove down Springfield Street at the same time as Cerullo. The officers approached the defendant, who told Cerullo that he had been shot. Cerullo noticed "a dark blood spot" on the back of the defendant's shirt; when the defendant opened his shirt, Cerullo saw blood "pouring out" from an apparent gunshot wound.
The defendant was transported by ambulance to Lawrence General Hospital, where he denied that he had been in a taxicab before being shot.
Police recovered one spent shell casing and one live round of ammunition from the ground near Rodriguez's taxicab. Police also found the robber's fur-lined hat on a sidewalk approximately ten feet behind the taxicab.
The defendant's trial testimony as to where he was shot placed
The defendant argues that evidence of the fleeing robber's statements constituted inadmissible hearsay. He claims also that the statement, recorded in his medical records, that he was in a taxicab when he was shot was improperly admitted as a business record, and, in any event, violated his right to confront the doctor who authored the report. The defendant contends that, without the erroneously admitted evidence, the Commonwealth's evidence is insufficient to sustain a conviction.
Discussion. 1. The robber's statements. The defendant challenges testimony from three witnesses regarding statements or exclamations made by the robber just after Rodriguez fired his gun, each to the effect that the robber reacted to having been shot. The defendant argues that the statements or exclamations constitute inadmissible hearsay admitted substantively to establish that the robber was in fact hit by the bullet fired from Rodriguez's gun.
Caraballo testified, without objection, that the robber said, "`He hit me, he hit me' or `crap' or something like that."
We do not agree with the defendant's characterization of Rodriguez's testimony. The question asked Rodriguez to recount a personal observation; based on his answer, provided through a Spanish language interpreter, it may fairly be inferred that Rodriguez was testifying from personal knowledge to what he heard the robber exclaim.
A statement is admissible as a spontaneous utterance if "(1) there is an occurrence or event `sufficiently startling to render inoperative the normal reflective thought processes of the
This evidence also supports a finding that the testimony related to the robber's "expressions of present pain." Murray v. Foster, 343 Mass. 655, 658 (1962). See Roosa v. Boston Loan Co., 132 Mass. 439, 439 (1882). The rule was discussed in Bacon v. Charlton, 7 Cush. 581, 586 (1851):
Whether the expressions are "real or feigned" is for the jury to determine "by the manner of them, and the circumstances under which they are proved to have been made." Id. Evidence of such expressions is limited to "such complaints, exclamations and expressions as usually and naturally accompany, and furnish evidence of, a present existing pain or malady." Id. Here, the
2. Medical records. At Brigham and Women's Hospital, a treating physician drafted a one-page report two days after examining the defendant; the report noted, "The patient states that he was minding his own business while he was in a taxicab when he got shot."
a. Business records exception. In order to determine whether a hearsay exception supports admission of the defendant's statement, we must first determine whether the defendant's hospital medical records were properly admitted as business records under § 78.
We begin by examining the statutory scheme governing admission of business and hospital records, applying settled principles of statutory construction. "It is a fundamental canon of statutory construction that `statutory language should be given effect consistent with its plain meaning and in light of the aim of the Legislature unless to do so would achieve an illogical result.'" Boston Hous. Auth. v. National Conference of Firemen & Oilers, Local 3, 458 Mass. 155, 162 (2010), quoting Sullivan v. Brookline, 435 Mass. 353, 360 (2001). Statutes that relate to the same subject matter are not to be construed "in a way that produces absurd or unreasonable results when a sensible construction is readily available." Manning v. Boston Redev. Auth., 400 Mass. 444, 453 (1987). Where two statutory provisions conflict, "we have stated that the more specific provision, particularly where it has been enacted subsequent to a more general rule, applies over the general rule." Doe v. Attorney Gen. (No. 1), 425 Mass. 210, 215-216 (1997), citing Lukes v. Election Comm'rs of Worcester, 423 Mass. 826, 829 (1996). See 2B N.J. Singer & J.D. Shambie Singer, Statutes and Statutory Construction § 51:2 (7th ed. 2008) ("Where a conflict exists the more specific statute controls over the more general one").
Section 78 permits business records to be admitted to prove the truth of statements contained therein if the judge finds:
By contrast, § 79 provides that "[r]ecords kept by hospitals, dispensaries or clinics, and sanatoria" in accordance with State law may be admitted in evidence "so far as such records relate to the treatment and medical history of such cases." Section 79 also includes the specific limitation that nothing contained in the records "shall be admissible as evidence which has reference to the question of liability." Id. A related provision governs the admissibility, after certain preconditions have been met, of specified "hospital medical records, relating to medical, dental, hospital services, prescriptions, or orthopedic appliances rendered to or prescribed for a person injured, or any report of any examination of said injured person." G. L. c. 233, § 79G (§ 79G). Such reports are admissible as evidence of the diagnosis,
Subject to the preconditions and limitations set forth in these provisions, we have considered the contents of hospital medical records to be reliable, "because the entries relating to treatment and medical history are routinely made by those responsible for making accurate entries and are relied on in the course of treating patients." Doyle v. Dong, 412 Mass. 682, 685 (1992), citing Bouchie v. Murray, 376 Mass. 524, 528 (1978).
Our decisions have long recognized that the specific limitations set forth in § 79 may preclude admission of some aspects of a medical record. In Bouchie v. Murray, supra at 531, we established a four-part test "to determine the admissibility of material contained in a hospital record." As to the first of these prongs, we have said that "the document must be the type of
Section 78 was enacted as a legislative response to the perception that common-law hearsay rules regarding business records "were wholly inadequate to meet the needs and realities of a modern industrial and commercial society." Wingate v. Emery Air Freight Corp., supra at 409 (Liacos, J., concurring), citing 5 J. Wigmore, Evidence §§ 1521, 1522, 1561a, 1561b (Chadbourn rev. ed. 1974). The common-law hearsay exception for business records, which permitted a written record made in the usual course of business to be admitted in evidence only if the author had died, see Delaney v. Framingham Gas Fuel & Power Co., 202 Mass. 359, 366-367 (1909), was regarded as having little relation "to the practical trustworthiness of the documents offered," 5 J. Wigmore, supra at § 1561a. The Legislature's enactment of § 78 reflected its recognition of the reliance that
Section 79, by contrast, was enacted "primarily to relieve the physicians and nurses of public hospitals from the hardship and inconvenience of attending court as witnesses to facts which ordinarily would be found recorded in the hospital books." Commonwealth v. Gogan, 389 Mass. 255, 263 (1983), quoting Leonard v. Boston Elevated Ry., 234 Mass. 480, 482 (1920). As Professor Wigmore described, "amidst the day-to-day details of scores of hospital cases, the physicians and nurses can ordinarily recall from actual memory few or none of the specific data entered; they themselves rely upon the record of their own action; hence, to call them to the stand would ordinarily add little or nothing to the information furnished by the record alone." 6 J. Wigmore, Evidence § 1707 (Chadbourn rev. ed. 1976).
Moreover, the Legislature's decision to authorize the introduction of medical opinions through § 79G is particularly significant in light of the absence of any similar provision in § 78 permitting admission of opinions in business records. See Julian v. Randazzo, 380 Mass. 391, 393 (1980), and cases cited. It is apparent that the Legislature, through its enactment of §§ 79 and 79G, intended that medical records be treated differently from the records of other businesses. Cf. Ricciardi v. Children's Hosp. Med. Ctr., 811 F.2d 18, 21-22 & n.3 (1st Cir. 1987) (contrasting separate Massachusetts statutes governing business records and medical records with Federal Rules of Evidence, which contain only one rule governing such records which is "not specifically aimed at hospital records").
Our understanding of the differences between the provisions on business and medical records was expressed in an early decision, Kelley v. Jordan Marsh Co., 278 Mass. 101, 109-111
Id.
Since that time, our decisions have concluded consistently that where a patient's medical records are involved — that is, where the documents involve "medical facts" about a patient, see Commonwealth v. Franks, 359 Mass. 577, 580 (1971) — admissibility of those records must be determined under § 79. See McClean v. University Club, 327 Mass. 68, 75 (1951) ("Hospital records are hearsay evidence which are made competent evidence subject to the conditions and limitations prescribed by the statute").
We conclude that the business records hearsay exception in § 78 may not be used to expand the scope of the hearsay exception for hospital medical records. The admissibility of statements in medical records is limited by the provisions in G. L. c. 233 relating to hospital records, including §§ 79 and 79G. Accordingly, the defendant's objection to the admission of his medical records under § 78 should have been sustained.
b. Hospital records exception. Our conclusion that the defendant's medical records were not admissible under § 78 does not resolve whether the hearsay statement at issue was otherwise admissible under § 79. We conclude that it was not. As the judge determined implicitly, the statement recorded in the defendant's hospital medical records — "patient states that he was minding his own business while he was in a taxicab when he got shot" — does not, on its face, bear any apparent relationship to the defendant's treatment or medical history. Thus, without testimony or additional evidence to establish that the statement was germane to the defendant's treatment or medical history, see Bouchie v. Murray, 376 Mass. 524, 531 (1978), the defendant's statement contained in his medical records was not admissible under the exception to the hearsay rule provided by § 79.
c. Confrontation clause. Because we conclude that the portion of the defendant's medical records containing his statement was not admissible under any exception to the rule against hearsay, we need not reach the question whether introduction of the statement violated the defendant's confrontation rights under the Sixth Amendment.
The confrontation clause bars the admission of testimonial out-of-court statements by a witness who does not appear at trial unless the witness is unavailable to testify and the defendant had an earlier opportunity for cross-examination. See Crawford v. Washington, 541 U.S. 36, 53-54 (2004). Whether a particular statement is "testimonial" lies at the core of this analysis. See Davis v. Washington, 547 U.S. 813, 823-824 (2006). In Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 2533 n.2 (2009) (Melendez-Diaz), the United States Supreme Court stated that "medical reports created for treatment purposes" are not testimonial under the Sixth Amendment. Cf. Giles v. California, 554 U.S. 353, 376 (2008) ("statements to physicians in the course of receiving treatment" are not subject to Sixth Amendment strictures). Although directed to different concerns, the class of medical records that do not constitute testimonial statements, as articulated by the Court in Melendez-Diaz, is substantially similar to the type of hospital records admissible
Because of these similarities, where statements contained in hospital medical records demonstrate, on their face, that they were included for the purpose of medical treatment, that evident purpose renders the statements both nontestimonial as to the author of the record, and as falling within the scope of § 79. See, e.g., Commonwealth v. Lampron, 65 Mass.App.Ct. 340, 343-345 (2005) ("There is no doubt in this case that the medical personnel obtained and recorded the information contained in the medical records for the purpose of treating the defendant"; "[t]he notations ... clearly are related to evaluating his condition at the time of his admission" and are therefore nontestimonial). Cf. Commonwealth v. DiMonte, 427 Mass. 233, 241-242 (1998) (holding, prior to Crawford v. Washington, supra, that references to reported cause of wife's injuries were plainly admissible under § 79, but statements reporting ultimate conclusion of crime charged should have been redacted).
d. Effect of erroneously admitted statement. Having determined that, in this case, it was error to admit the defendant's medical records as business records, we consider whether the error prejudiced the defendant. See note 17, supra. An error is not prejudicial if it "did not influence the jury, or had but very slight effect." Commonwealth v. Cruz, 445 Mass. 589, 591 (2005), quoting Commonwealth v. Flebotte, 417 Mass. 348, 353
The Commonwealth's case was not dependent on the asserted admission by the defendant, but focused on evidence that police found the defendant with a gunshot wound to his back not far from the scene of the robbery, and within only minutes of Rodriguez's shooting the robber as he fled. Witnesses testified that the robber fell (a description that matched the defendant's own statement regarding his response to having been shot in the back by "punks"), and exclaimed or stated he had been "hit." Additionally, DNA evidence connected the defendant to the robber's black, fur-lined hat, as did the defendant's own admission that on the night in question he had been wearing a hat that matched his black leather, shearling jacket. Thus, there was strong circumstantial evidence of the defendant's guilt that was strengthened by evidence of the defendant's numerous inconsistent statements to police regarding his whereabouts and actions on the night of the robbery. See Cramer v. Commonwealth, 419 Mass. 106, 111 (1994) ("Inconsistent statements may be interpreted as showing consciousness of guilt"). See also Commonwealth v. Bonomi, 335 Mass. 327, 348 (1957) (consciousness of guilt may be inferred from defendant's wilfully false statements).
Judgment affirmed.
There are no similar requirements for admission of business records under § 78. In criminal proceedings, however, § 78 requires that "all questions of fact which must be determined by the court as the basis for the admissibility of the evidence involved shall be submitted to the jury." Neither § 79 nor § 79G contains a similar requirement.