restricting holding of State v. Tims, 9 Ohio St.2d 136, 224 N.E.2d 348Summary of this case from State v. Cosgrove
Decided March 22, 1978.
Criminal law — Driving while intoxicated — Evidence — Admissibility of official reports — R.C. 2317.42 construed.
In a criminal prosecution for violation of R.C. 4511.19 or a municipal ordinance relating to driving a vehicle while under the influence of alcohol, certified copies of pages from a permanent log book maintained by a police department in accordance with regulations promulgated by the Director of Health pursuant to R.C. 3701.143 are admissible in evidence as an exception to the hearsay rule under R.C. 2317.42.
CERTIFIED by the Court of Appeals for Wayne County.
Kearon S. Walker, appellant herein, was charged with operating a motor vehicle while under the influence of alcohol in violation of Section 333.01 of the Codified Ordinances of the city of Wooster. Results of a breath analysis test administered to the appellant indicated a reading of 0.23 percent blood alcohol. In laying the foundation for the admission of this test result in evidence at trial in Wayne County Municipal Court, the prosecution established that the breath analysis machine was in proper working order on the basis of the following documentary evidence: (1) a certified report of the Chief of the Alcohol Testing, Approval Permit Program of the Ohio Department of Health stating that: the calibration solution (batch number 313, bottle number 4), prepared for the Wooster Police Department for use in calibration of its breath analysis machine, contained 1.21 mg/ml ethyl alcohol in distilled water; that, when used according to manufacturer's directions, the solution would produce a reading of 0.10 percent blood alcohol on the machine for a period of three months from the date of first use; and that, so long as the machine was in proper working order such reading would obtain; (2) a copy of the instructions for use of the calibration solution issued by the Alcohol Testing, Approval Permit Program of the Ohio Department of Health which reflected that the calibration solution was first used by the Wooster Police Department on July 19, 1976; (3) a certified copy of two pages from a log book maintained by the Wooster Police Department indicating that on July 26, 1976, Richard Landers, a police officer, conducted a calibration test on the breath analysis machine using the above calibration solution, and recorded a reading of 0.10 percent blood alcohol; and (4) a copy of the senior operator's permit issued to Richard Landers indicating that he was authorized to supervise and perform breath testing on the breath analysis machine at the time he conducted the calibration test.
The jury found the defendant guilty as charged on September 14, 1976, and she was accordingly sentenced to three days in the Wayne County jail, ordered to attend traffic school, and had her license suspended for one year. Stay of execution pending appeal was subsequently granted by the trial court. In her brief to the Court of Appeals, appellant sought reversal of the trial court's judgment on the single contention that her right to confront the witnesses against her guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution was denied when the trial court overruled her objection to the introduction in evidence of a copy of portions of the permanent log book maintained by the Wooster Police Department.
The Court of Appeals affirmed the trial court's judgment. Because its judgment conflicted with the judgment rendered by the Court of Appeals for Marion County in State v. Fellows (1975), 47 Ohio App.2d 154, the Court of Appeals for Wayne County certified the record of the case to this court for review and final determination.
Ms. Jane I. Rinfret, assistant prosecuting attorney, for appellee.
Mr. Roger W. Kienzle, Jr., for appellant.
The single issue in this cause is whether the trial court erred in overruling the appellant's objection to the admission in evidence of portions of a permanent log book maintained by the Police Department of the city of Wooster introduced by the prosecution to show that the breath analysis machine used in testing the defendant was in proper working order as required by this court's pronouncements in paragraph six of the syllabus in Mentor v. Giordano (1967), 9 Ohio St.2d 140, and paragraph one of the syllabus in Cincinnati v. Sand (1975), 43 Ohio St.2d 79.
Appellant contends that the two pages of the permanent log book is a business record within the meaning of R.C. 2317.40, and that as such, is inadmissible in evidence as an exception to the hearsay rule based on this court's holding in State v. Tims (1967), 9 Ohio St.2d 136. Appellee, on the other hand, contends that the log book is an official report kept by officers of this state as required by regulations promulgated by the Director of Health, and thus, was properly admitted in evidence under the official-reports-as-evidence exception to the hearsay rule found in R.C. 2317.42. Determination of the applicable exception to the hearsay rule directly affects the outcome in this cause, since, in authenticating the document during trial the prosecution did not call as a witness the custodian, supervisor, or maker of the record as required under R.C. 2317.40, but rather merely submitted a certified copy of the report as permitted under R.C. 2317.42.
R.C. 2317.42 provides:
"Official reports made by officers of this state, or certified copies of the same, on a matter within the scope of their duty as defined by statute, shall, insofar as relevant, be admitted as evidence of the matters stated therein."
In discussing the necessity for the official-reports-as-evidence exception, this court noted that:
"The General Assembly, recognizing the need for an authority that `would make admissible various sorts of reports dealing with matters seldom disputable and only provable otherwise at disproportionate inconvenience and cost' (5 Wigmore on Evidence [3 Ed.], 699 Section 1672), enacted Section 2317.42, Revised Code, thereby greatly facilitating the production of evidence with little chance of it being untrustworthy." State v. Colvin (1969), 19 Ohio St.2d 86, at 89. As commented in 5 Wigmore on Evidence (3 Ed.), 618, Section 1632:
"* * * When it is a part of the duty of a public officer to make a statement as to a fact coming within his official cognizance, the great probability is that he does his duty and makes a correct statement. The consideration that regularity of habit, a chief basis for the exception for regular entries * * *, will tend to this end is not here an essential one; for casual statements, such as certificates, may be admissible, as well as a regular series of entries in a registry. The fundamental circumstance is that an official duty exists to make an accurate statement, and that this special and weighty duty will usually suffice as a motive to incite the officer to its fulfillment."
Applying the above statutory provisions to the cause at bar, the court finds that portions of the permanent log book are admissible under the official-reports-as-evidence exception. Clearly, police officers of the city of Wooster are "officers of this state" within the meaning of R.C. 2317.42. Furthermore, under the rules promulgated by the Director of Health pursuant to R.C. 3701.143, members of the police department of the city of Wooster have the duty of conducting calibration tests on breath analysis machines and recording the results therefrom in a permanent log book kept on file at the station. Specifically, the rules require, in part, that, except for sober-meters, breath testing instruments must be calibrated by a qualified senior operator "using methods and techniques for calibration recommended by the manufacturer of the calibration instrument or the director of health" no less frequently than after every ten tests, or after every nine days if fewer than ten tests are performed in any nine-day period (Ohio Administrative Code Rule 3701-53-04[A]), and that the results of the calibration tests shall be kept in a record book for not more than three years. (Ohio Administrative Code Rule 3701-53-04[C].)
R.C. 3701.143 provides:
"The director of health shall determine, or cause to be determined, techniques, or methods for chemically analyzing a person's blood, urine, breath, or other bodily substance in order to ascertain the amount of alcohol in a person's blood. The director shall approve satisfactory techniques or methods, ascertain the qualifications of individuals to conduct such analyses, and issue permits to qualified persons authorizing them to perform such analyses. * * *"
In accord with our holding that certified copies of an official report regarding the proper calibration of the breath analysis machine are sufficiently reliable to warrant their admissibility in evidence as an exception to the hearsay rule are Wester v. State (Alaska 1974), 528 P.2d 1179, certiorari denied 423 U.S. 836; State v. McGeary (1974), 129 N.J. Super. 219, 322 A.2d 830; State v. Woodward ( 1 Ore. App. 338), 462 P.2d 685; Stroupe v. Commonwealth (1974), 215 Va. 243, 207 S.E.2d 894; and Duff v. State (Crim.App. Tex. 1974), 503 S.W.2d 785.
A common approach adopted by a growing number of jurisdictions with respect to questions concerning the proper foundation needed for the introduction of breath analysis test results in evidence is set forth by the Court of Appeals of New York in People v. Gower (1977), 42 N.Y. 2d 117, 366 N.E.2d 69, at page 71, wherein that court stated:
"* * * Perhaps of greater importance than the procedural issue concerning the admissibility of particular forms of documentary evidence, is the underlying question of substantive law — what foundation must now be laid for the admission of breathalyzer results. Breathalyzer equipment and procedures have become familiar and their use is now commonplace. Reliability has been demonstrated and the results of such testing where properly performed are universally accepted. This is not to say, however, that no foundation should be any longer required for introduction of breathalyzer evidence. It is to say that there may now appropriately be some relaxation of the rigorous prerequisites properly required to authenticate the reliability of the scientific equipment and procedures where they were first employed. Based on a wealth of practical experience greater dependence can now properly be placed on according full opportunity, through pretrial discovery and other means, to test and challenge the probative worth of the evidence. Thus, emphasis may be shifted from technical issues of admissibility of evidence to means for measuring its persuasive weight. No precise or even general guidelines can be laid down in advance; necessarily the requirements in each case will depend on the peculiar circumstances of that case."
We find this approach persuasive. In Ohio, it is not questioned that through pre-trial discovery under Crim. R. 16 the defense may obtain the name of the individual responsible for conducting the calibration test, and determine through deposition under Crim. R. 15 whether such individual utilized the proper methods in calibrating the machine. Furthermore, the defense may subpoena the official as a witness to testify at trial under Crim. R. 17 if deemed necessary. These protections adequately provide the defense every opportunity of insuring that the breath analysis machine was in proper working order when used in testing the defendant. To require as a matter of law that the officer who performed the calibration test (who perhaps has conducted several such tests as a matter of routine) testify at trial where the permanent record of the calibration tests and the results therefrom are readily available does not merit adoption by this court.
Because certified copies of portions of the permanent log book qualify under the official-reports-as-evidence exception, the court finds that the documents in issue were properly authenticated by the prosecution under R.C. 2317.42.
The remaining question to be resolved is the impact of Tims, supra ( 9 Ohio St.2d 136), to the cause at bar.
In the syllabus of Tims, at page 136, this court held:
"The Business Records as Evidence Act, Section 2317.40, Revised Code, which allows the admission into evidence of records without substantiation by the person who actually performed the acts which resulted in such record, is not applicable to criminal proceedings so as to allow the admission into evidence under such act of hospital records showing the results of a physical examination of an alleged rape victim." Although language in the syllabus narrowly confines the holding of the case to the Business Records as Evidence Act as applied to the admissibility of hospital records in criminal proceedings, there is broad language in the main body of the opinion suggesting that the Business Records as Evidence Act, as well as the Official Reports as Evidence Act by analogy, are not applicable in such proceedings.
Appellant cites the following language in State v. Tims (1967), 9 Ohio St.2d 136, 138, to support her contention that the Business Records as Evidence Act can never be employed in a criminal proceeding.
"This right of confrontation includes the right of cross-examination of the person who is the actual witness against him. If applicable in a criminal case, the Business Records as Evidence Act denies him such right. The act permits the introduction of evidence in the form of records without requiring the presence of the person who actually made the examination. It is this person who is the actual witness against the accused, not the custodian, and it is this witness that the accused has the right to cross-examine to determine his qualifications and to determine whether the tests were made properly."
The latter interpretation of the holding in Tims, supra, is unacceptable for several reasons. As pointed out by this court in Williamson Heater Co. v. Radich (1934), 128 Ohio St. 125, and State v. Nickles (1953), 159 Ohio St. 353, 359, the holding of the syllabus must be read and interpreted in conjunction with the corresponding facts of the case. The Tims case only involved the admissibility of hospital records; it clearly did not set forth a general rule proscribing the introduction in evidence of all documents that may qualify as a business record. This conclusion is buttressed by the fact that this court, in State v. Kehn (1977), 50 Ohio St.2d 11, specifically held that bank deposit slips, offered as circumstantial evidence of a coin payoff following a vending machine company burglary, were properly qualified under R.C. 2317.40 as admissible in evidence. In Colvin, supra ( 19 Ohio St.2d 86), at page 91, the court rejected the contention that evidence admitted under the Official Reports as Evidence Act violated the accused's right of confrontation.
Furthermore, decisions of the Supreme Court of the United States have repeatedly indicated that the right of confrontation is not one without well-recognized exceptions. Snyder v. Massachusetts (1934), 291 U.S. 97, at 107; Pointer v. Texas (1965), 380 U.S. 400, at 407; Chambers v. Mississippi (1973), 410 U.S. 284, at 288-299. In Dowdell v. United States (1911), 221 U.S. 325, at 330, the Supreme Court recognized that "[d]ocumentary evidence to establish collateral facts, admissible under the common law, may be admitted in evidence" in a criminal trial.
In determining what evidence is admissible in a criminal trial as an exception to the hearsay rule irrespective of the accused's basic right of confrontation, the Supreme Court has looked to "indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant." Dutton v. Evans (1970), 400 U.S. 74, at 89. As the Supreme Court stated in Chambers, supra, at page 295, while "* * * denial or significant diminution [of an accused's right of confrontation] calls into question the ultimate `integrity of the fact-finding process' and requires that the competing interest be closely examined [citation omitted] * * *," "the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process."
This case-by-case approach in resolving the apparent conflict between the Confrontation Clause and the hearsay exceptions recognizes that the former was "* * * not [designed] to serve as a rigid and inflexible barrier against the orderly development of reasonable and necessary exceptions to the hearsay rule" ( Kay v. United States [C.A. 4, 1958], 255 F.2d 476, at 480; see, also, 5 Wigmore on Evidence, 155, Section 1397), but was "* * * to advance a practical concern for the accuracy of the truth-determining process in criminal trials by assuring that `the trier of fact [has] a satisfactory basis for evaluating the truth of the prior statement.'" Dutton, supra, at 89. It is just such an approach this court has utilized in holding that copies of pages contained in a permanent log book are admissible in the instant proceeding.
It is important to note that we are not further expressly or implicitly holding that all documents qualifying under the Official Reports as Evidence Act are admissible in a criminal proceeding. As stated in California v. Green (1970), 399 U.S. 149, at 155:
"While it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing to suggest that the overlap is complete and the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law. Our decisions have never established such a congruence; indeed, we have more than once found a violation of confrontation values even though the statements in issue were admitted under an arguably recognized hearsay exception."
In conclusion, the court finds that the documentary evidence sub judice qualifies under the Official Reports as Evidence Act pursuant to R.C. 2317.42, that the document is sufficiently reliable to warrant its admissibility in evidence despite the fact that the declarant is not present at trial, and that the holding of Tims, supra, is not controlling given the facts of this cause.
Accordingly, the judgment of the Court of Appeals is affirmed.
O'NEILL, C.J., HERBERT, W. BROWN, P. BROWN and LOCHER, JJ., concur.
CELEBREZZE, J., dissents.