Commonwealth v. Michael J. Bassett.

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).

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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.

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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-

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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.

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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.

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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

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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.

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