Reeves v. Boyd & Sons, Inc.

RILEY, Judge,

dissenting in part and concurring in part.

I respectfully dissent as to Issue I and concur on Issues II, III and IV.

It is my opinion that the admission of Reeves' blood alcohol test was not admissible under the business records exception of Ind.Evidence Rule 803(6) and the admission was reversible error. The hearsay exception for business records is based on a presumption that people preparing reports in the course of their employment will do so with accuracy and honesty. Evaluative reports, however, are of particular concern because they contain opinions and conclusions which may strongly influence a jury. Evid.R. 803(6) provides a valuable safeguard to the admission of business records in the form of evaluative reports. The Rule provides that the following are not excluded by the hearsay rule:

*876. opinions or diagnoses made at or near the time by, or from information transmitted by, a person with knowledge if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the ... report ..., usless the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. (emphasis added).

To merit judicial reliance on the contents of records, it is necessary that the proponent of particular records establish the trustworthiness of those records. United States v. Rich, 580 F.2d 929, 938 (9th Cir.1978), cert. denied, 439 U.S. 935, 99 S.Ct. 330, 58 L.Ed.2d 331 (1978). Dr. Carr, by admitting the blood test results, is offering the results to prove the truth of the assertion that Reeves was driving with a blood alcohol level of .179. Offering the blood test results, for that purpose, creates the need to cross-examine the declarant about the test and if that test is trustworthy. In this case, Dr. Carr did not perform the test, was not familiar with the testing protocol, could not testify as to the training and experience of the analyst, was not able to testify if that blood tested was the blood of Reeves, was not able to verify the accuracy of the equipment used to test the blood, or even if standard operating procedures were followed. Cobb v. State (1992), Ind.App., 585 N.E.2d 40, 43 (The key requirement is that the witness through which a business record is to be admitted must have personal knowledge of the various elements of the foundation).

The mere fact that Reeves' medical ree-ords qualify as an exception to the hearsay rule, does not mean that everything contained in those records is then admissible. The blood alcohol test contains "double hearsay" and a second exception to the hearsay rule must be established for each hearsay statement. Statements of third persons are only admissible when contained in a business record where they satisfy the multiple hearsay requirements of Rule 805. Under Rule 805, the third party statement must have an independent basis of admissibility pursuant to "an exception to the hearsay rule provided in these rules" as identified in Rule 802. In Burp v. State (1993), Ind.App., 612 N.E.2d 169, this Court reaffirmed the need for more than simply a business records foundation to permit the admission of a blood aleohol test.

It is true that the blood aleohol test result was one of several factors leading Dr. Carr to the conclusion that Reeves was intoxicated. I agree that Dr. Carr, in his testimony as an expert witness, could rely on the blood test results in his conclusion that Reeves was intoxicated, however, this does not mean that the test result itself is admissible into evidence. This conclusion only leads us to the second layer of hearsay and a second exception to the hearsay rule must be established to admit the results themselves. Dr. Carr's testimony alone is inadequate to establish that the sample was taken in a medically accepted manner. Burp v. State, 612 N.E.2d at 173.

Rule 805 does not limit admissibility to double, i.e., two level, hearsay. However, each level of the out of court statements must satisfy an exception to the hearsay rule. It stands to reason that with each layer of multiple hearsay the accuracy of the statements are diminished. In this context, Rule 403 may operate to authorize the court to exclude multiple hearsay where the court determines the reliability of the evidence has been diminished to an unacceptable extent. Rule 408 provides that the trial judge may exclude evidence:

... if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.

Accordingly, if the evidence arouses the jury's sense of outrage or appeals to an instinet to punish, the evidence may be unfairly prejudicial under Rule 408. Stone v. State (1989), Ind.App., 536 N.E.2d 534 (trial court has the discretion to exclude relevant evidence that is cumulative where the potential prejudice outweighs the probative value).

Rule 808(6) merely provides that documents described in the rule, which may include opinions, are not excluded by the hearsay rule. Nothing in Rule 808 says that opinions may not be excluded by some other *877rule. In fact, Rule 705. Disclosure of Facts or Data Underlying Expert Opinion provides that:

(t)he expert may testify in terms of opinion or inference and given reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

The fact that a report is generally admissible does not require that everything contained in that report be admitted into evidence. A business record often contain multiple levels of hearsay. Thus, a blood alcohol test result of what a lab technician found could be competent evidence on which to form an opinion of intoxication or the course of treatment of the patient. However, the results themselves should only be admitted by a person qualified as an expert witness under Evid.R. 702 and 705.

In other words, unless Rule 808(6) is deemed to override the opinion rules, it should not be construed to allow the introduction of expert opinions without an opportunity to ascertain the "trustworthiness" of the test. Without such opportunity to cross-examine, anyone who works in a hospital could report the blood alcohol test results upon a mere showing that she worked for the hospital and the report was made in the regular course of business.

It is my conclusion that opinions referred to in Rule 808(6) are those which are incident to or part of factual reports of contemporaneous events or transactions. Business reports which are prepared to state or support expert opinions are not admissible without the preparer being present in court to testify as to her qualifications as an expert and to be cross-examined on the substance, pursuant to Rules 702 and 705.

The majority holds that the blood alcohol test indicating intoxication was cumulative to other evidence of intoxication. I take exception to the broad statement that the blood alcohol test indicates intoxication "only". In today's atmosphere of "zero tolerance" to "drinking and driving" the mere mention of blood aleohol test results may become a conclusion of fact to the jury. The jury may adopt without examination the opinion in the report without assessing the facts themselves. The report will then have usurped the function of the fact finder. The test result was hearsay and does not qualify as an exception to the hearsay rule as a business record. The trial court erred by admitting the test and under Rule 408 its prejudicial impact far outweighed its probative value.