NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-225
COMMONWEALTH
vs.
MICHAEL J. BASSETT.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Michael J. Bassett, was convicted of
operating a motor vehicle under the influence of intoxicating
liquor (OUI), third offense, in violation of G. L. c. 90, § 24
(1) (a) (1). On appeal, he argues that the trial judge abused
his discretion by redacting a medical record in an arbitrary and
inconsistent manner and by admitting in evidence certain
unredacted statements that spoke directly to the issue of
liability. Discerning no error, we affirm.
Background. We summarize the facts that the jury could
have found at trial, reserving certain details for our
discussion of the specific issues. On January 12, 2018, at
approximately 10 P.M., the defendant was involved in a single-
vehicle accident in Billerica. His sport utility vehicle (SUV),
which he was driving and of which he was the sole occupant,
crossed the white fog line and collided with a telephone pole in
front of the 99 Restaurant on Boston Road, overturning and
coming to rest on its roof in the middle of the road. Billerica
police officer John Slaney, who was nearby at the time, was
dispatched and responded to the scene within one minute.
On arrival, Officer Slaney found the defendant "standing
. . . against the vehicle on the passenger side front."1
"Several people" had exited the restaurant and were observing.
The defendant was bleeding from the head, smelled of alcohol,
and had glassy eyes. Officer Slaney guided the defendant over
to his patrol vehicle, during which time he noticed that "[the
defendant] was a little unsteady on his feet." The officer
asked the defendant about his wellbeing, to which the defendant
responded that "he was okay."
Shortly thereafter, paramedics arrived and provided
additional care to the defendant. After approximately fifteen
minutes, the defendant was transported to Lahey Clinic in
Burlington for further treatment. Once at the Lahey Clinic
emergency department, nurses and clinicians treated the
defendant, memorializing their observations of him in a medical
record. They made, inter alia, repeated notes of his apparent
intoxication during the course of their treatment. They further
1 Medical providers would later note that the defendant "self
extricated" from the vehicle after the turnover.
2
noted that he refused to remove his clothing for a complete exam
and that he stated "I am fine[.]"
The defendant was charged with OUI and a marked lanes
violation.2 Prior to trial, the defendant moved to suppress
evidence stemming from a blood draw that was conducted at Lahey
Clinic, arguing that it was obtained without consent or a
warrant. The trial judge allowed the defendant's motion but
permitted other portions of the medical record to enter in
evidence, subject to redaction.3 The Commonwealth and the
defendant agreed to many of the redactions, however, the
defendant ultimately objected to two unredacted statements,
discussed infra.
The defendant was convicted of OUI and subsequently pleaded
guilty to a third offense sentencing enhancement. He was
sentenced to two years in the house of correction with 180 days
to serve, and the balance suspended with probation until March
29, 2022. This appeal followed.
Discussion. 1. Admission of statements in medical record.
The defendant argues that the trial judge abused his discretion
2 The defendant was found not responsible for the marked lanes
violation.
3 The trial judge redacted portions of the medical record in
response to a motion in limine filed by the defendant. Although
that motion is not in the record before us, it appears that the
judge used the redactions to exclude what he determined to be
unfairly prejudicial evidence, pursuant to Mass. G. Evid. § 403
(2019).
3
by admitting in evidence statements in the medical record that
spoke directly to the issue of his liability for OUI. We
disagree.
"Generally, determinations as to the admissibility of
evidence lie 'within the sound discretion of the [trial]
judge.'" Commonwealth v. Jones, 464 Mass. 16, 19-20 (2012),
quoting Commonwealth v. Dunn, 407 Mass. 798, 807 (1990). Where
the defendant objected to the admission of specific portions of
the medical record at trial, we review for abuse of discretion.
Jones, supra at 21. When, as here in part,4 the defendant
appeals the admission of evidence to which he did not object at
trial, we instead review to see if any error resulted in a
substantial risk of a miscarriage of justice. Commonwealth v.
Botev, 79 Mass. App. Ct. 281, 283-284 (2011).
It is well settled, and the defendant concedes, that
"[r]ecords kept by hospitals . . . shall be admissible . . . so
far as such records relate to . . . treatment and medical
history." G. L. c. 233, § 79. However, "nothing therein
contained shall be admissible as evidence which has reference to
the question of liability." Id. The statute is construed
liberally, permitting "the admission in evidence of statements
4 On appeal, the defendant challenges portions of the medical
record contained on pages two, six, seven, eight, eleven, and
thirty-four. He only objected to statements on pages six and
eleven at trial.
4
in hospital records bearing on criminal culpability that seem to
relate at most only incidentally to medical treatment."
Commonwealth v. Dube, 413 Mass 570, 573 (1992). "Objectively
determinable facts resulting from medical tests and procedures
conducted for diagnostic and treatment purposes and appearing in
hospital records submitted under the statute may obviously bear
on the ultimate question of civil or criminal liability but do
not constitute improper allegations, opinions, or conclusions
about liability." Commonwealth v. McLaughlin, 79 Mass. App. Ct.
670, 675 (2011).
Here, the judge properly admitted under G. L. c. 233, § 79,
the portions of the defendant's medical record that spoke to his
diagnosis and treatment. See Commonwealth v. Lampron, 65 Mass.
App. Ct. 340, 343-344 (2005) (admitting hospital records
referring to intoxication in OUI context). See also Mass. G.
Evid. § 803(6)(B) (2022). At trial, the defendant ultimately
objected to the admission of two portions of the medical record:
(1) the statement "[a]lcoholic intoxication without
complication," which appeared under the heading "[c]linical
[i]mpression"; and (2) the statement "[a]lcohol intoxication,"
which appeared under the heading "[i]njuries." We conclude that
both statements reflected assessments made by nurses or
clinicians in the ordinary course of treatment. See
Commonwealth v. DiMonte, 427 Mass. 233, 242 (1998) (fact-
5
specific references to cause of injury relevant to treatment).
The defendant was found by police standing next to an overturned
vehicle with a bloody injury to his head. After the responding
officer saw him displaying signs of wooziness, he was
transported to the emergency department at Lahey Clinic for
further treatment. Providers at the emergency department
observed him and made notes about his medical status in an
effort to properly identify the source of, and treat him for,
those symptoms and injuries. Id. Their observations regarding
his intoxication were an appropriate part of that treatment, as
were their memorialization of those observations into a written
record. See Lampron, 65 Mass. App. Ct. at 343-344.
Furthermore, the statements that were admitted did not
impermissibly speak to the ultimate question of liability. We
have repeatedly held that medical records alluding to a
defendant's intoxication may be admitted in OUI cases because
such statements do not exceed the bounds of G. L. c. 233, § 79.
See, e.g., Commonwealth v. Palacios, 90 Mass. App. Ct. 722, 727-
728 (2016); McLaughlin, 79 Mass. App. Ct. at 675. The
challenged statements in this case referred exclusively to
intoxication, not impairment, and were admitted consistent with
those rulings. See Palacios, supra. We discern no abuse of
discretion in the judge's decision to admit these portions of
the medical record.
6
For the first time on appeal, the defendant further argues
that portions of the medical record to which he did not object
at trial were admitted in error. These statements included (1)
"[p]atient admitted to alcohol use," (2) "[r]eports he had a few
drinks [sic] alcoholic drinks tonight," (3) "[d]riving with
EtOH," (4) "[a]lcoholic [i]ntoxication without complication,"
(5) "[p]lan for patient to sober in the ED," (6) "post motor
vehicle accident in which his SUV rolled over multiple times
after he misinterpreted the distance needed to successfully make
a turn," (7) "[p]t was driving approx 35mph when he reports he
lost control of the car," and (8) "driver of moderate speed
rollover MVC." These statements appeared in the medical record
under the headings "H[istory of] P[resent] I[llness],"
"E[mergency] D[epartment] Notes," "Events/Environment Related to
Injury," "Progress Notes," and "Diagnosis."
It is well settled that, where the defendant did not object
at trial, the issue is not preserved, and we review only for a
substantial risk of a miscarriage of justice.5 Botev, 79 Mass.
App. Ct. at 283. We see none here. Like with the portions
discussed supra, these record entries discussed observations
5 We note that the statement "[a]lcoholic [i]ntoxication without
complication" appears twice in the medical record. Defense
counsel objected to the phrase where it appeared on page six but
did not object to its appearance again on page thirty-four. We
accordingly review each statement as it appeared in the record
under the respective, appropriate standard.
7
made by nurses and clinicians in the course of diagnosing and
treating the defendant's injuries and did not impermissibly
relate to the issue of liability. See DiMonte, 427 Mass. at
242. The defendant having arrived at the emergency department
following a serious car accident, it was necessary for medical
providers to contemplate the nature of the crash and the way in
which alcohol consumption and or intoxication might have
influenced the defendant's symptoms and treatment. See id.
Furthermore, we conclude that these statements, none of which
suggested that the defendant operated a motor vehicle while
impaired without the need for further analysis, did not speak
directly to the issue of liability. See Dube, 413 Mass. at 574;
McLaughlin, 79 Mass. App. Ct. at 675. Instead, they represented
the type of objective observations related to medical treatment
that are explicitly permitted under c. 233, § 79, and our
previous holdings. See McLaughlin, supra. Accordingly, there
was no error, much less one creating a substantial risk of a
8
miscarriage of justice.
Judgment affirmed.
By the Court (Neyman,
Desmond & Grant, JJ.6),
Clerk
Entered: February 21, 2023.
6 The panelists are listed in order of seniority.
9