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Present: Judges Elder, Bumgardner and Senior Judge Overton

Argued at Richmond, Virginia

Record No. 2017-02-2







NOVEMBER 4, 2003


Paul M. Peatross, Jr., Judge

(Michael T. Hemenway, on brief), for appellant. Appellant

submitting on brief.

Amy L. Marshall, Assistant Attorney General (Jerry W. Kilgore,

Attorney General, on brief), for appellee.

Timothy J. Parker (appellant) appeals from his jury trial
conviction for maliciously

causing bodily injury in violation of Code ? 18.2-51. On
appeal, appellant contends the

admission of hospital records under the business records
exception to Virginia’s hearsay rule

violated his rights under the Sixth Amendment’s Confrontation
Clause because the records

included his report of how he sustained the injuries for which
he was treated. We hold the trial

court’s admission of the records was not error and affirm.



In December of 1999 or January of 2000, appellant’s brother,
Anthony Parker (Parker),

"had an altercation" with the victim while playing
basketball in an athletic club. The victim

feared for his safety but departed without sustaining any

The victim next saw Parker on September 10, 2000, at about 2:00
p.m., when the victim

and two friends, Anthony Agee and William White, went to a
different location, "the Dell," to

play basketball. The victim recognized Parker but did not know
appellant. Everyone but

appellant began to play a "pick-up game" of
basketball. Appellant stood behind the basketball

rim holding a glass bottle.

Two to three minutes into the game, someone hit the victim on
the head from behind,

cutting his head and neck. The victim "wasn’t sure who had
hit [him] or what [he] got hit with,"

but he "knew it was something that shattered." The
victim "knew [Parker] wasn’t the one that hit

me . . . because I could see him [in front of me]. So I knew
obviously there was someone else

. . . ."

Agee, whose attention had been focused on the game and away from
the victim, "heard a

sudden crash or break of glass." Agee immediately turned
around and saw Parker and appellant

"surrounding" the victim, whose head and neck were
bleeding. Parker was in front of the victim,

and appellant was behind the victim. No one else was nearby.

After the victim was hit from behind, Parker said something
like, "[Y]ou thought I forgot

about that shit, didn’t you?" Agee and White immediately
went to the victim to separate him

from Parker and appellant. Agee noticed glass on the ground in
the area of the attack. He also

observed that appellant had a piece of glass "an inch or
two" long "sticking out of his finger"

"from the glass that was on the ground" on the
basketball court. The victim confirmed that one

of Parker’s companions was holding his hand as he left the

On September 13, 2000, Officer Michael A. Blakey went to the
residence of Parker to

serve an arrest warrant on him for the incident in question.
There, Blakey encountered appellant,

who answered the door with a "heavily bandaged" right
hand. Appellant "denied any

involvement" in the attack on the victim, saying that
"he hurt his hand playing basketball at

Garrett Square with his kids" "on [Monday,] September
the 11th" and that he received medical

treatment at Martha Jefferson Hospital that same day.

Prior to trial, the Commonwealth subpoenaed appellant’s medical
records from Martha

Jefferson Hospital. The records indicated that appellant
received medical treatment there

between 2:30 and 7:00 p.m. on September 10, 2000, rather than on
September 11 as he had told

Officer Blakey. Notes from that treatment indicate appellant
reported to two nurses and a

physician that he "[f]ell onto" or "put his hand
down onto" broken "glass while playing


On the morning of trial, appellant moved to exclude the medical
records on the ground

that the Commonwealth’s plan to offer the records into evidence
deprived appellant of his rights

under the Confrontation Clause. The Commonwealth averred that
the purpose of the records was

to show appellant sustained an injury consistent with the
offense for which he was on trial. The

trial court made a preliminary ruling denying the motion.

At trial, Clarissa W. Bell, the custodian of medical records at
Martha Jefferson Hospital,

testified regarding records of medical treatment appellant
received on September 10, 2000. She

testified the records were "kept in the normal course of
business" and were "relied upon by the

hospital in the course of its business." Appellant renewed
his hearsay objection, stating, "We

have no objection to [Ms. Bell’s] being a proper custodian. It’s
really the Sixth Amendment . . .

confrontation" argument because "I’m not able to
cross-examine the individuals that apparently

wrote these things." After the trial court overruled the
objection and admitted the records,

appellant argued the Commonwealth had to make a "showing of
unavailability of the authors of

the documents." The trial court responded, "Oh, I
don’t think that’s a requirement of the business

records exception. If you’ve got a custodian and they’re kept in
the ordinary course of business."

After the Commonwealth rested, appellant took the stand and
denied striking the victim.

He said that, during the scuffle, he heard a crash and saw glass
on the court. He claimed that a

piece of the glass stuck in his hand when he reached down to
remove a piece that had become

lodged in the sole of his shoe. Appellant admitted lying to the
emergency room physician about

how he sustained the injury because he was afraid for both
himself and his brother.

The jury found appellant guilty of maliciously causing bodily
injury as charged in the




Appellant contends the trial court’s admission of the hospital
records under the business

records exception to Virginia’s hearsay rule violated his rights
under the Sixth Amendment’s

Confrontation Clause because "I’m not able to cross-examine
the individuals that apparently

wrote these things or created the hearsay we’re concerned
about." He also contends the

Commonwealth had to prove "the authors of the
documents" were unavailable. The

Commonwealth argues that the statements were not hearsay, that
their admission did not violate

the Confrontation Clause, and that, even if it did, the error
was harmless. We hold that

admission of the medical records containing appellant’s
statements was proper under a firmly

rooted exception to Virginia’s hearsay rule and, thus, did not
violate the Confrontation Clause.

The challenged statements in appellant’s medical records contain
two potential levels of

hearsay—first, appellant’s statements to the various hospital
staff members and, second, the staff

members’ recordings of those statements in the medical records.
"[H]earsay evidence which

contains hearsay should not be subject to an automatic rule of
exclusion." West v.

Commonwealth, 12 Va. App. 906, 909, 407 S.E.2d 22, 24 (1991). As
long as "both the primary

hearsay declaration and each hearsay declaration included within
it . . . conform to a recognized

exception to the hearsay rule," those declarations are
admissible. Id.



Appellant does not challenge the admissibility of the first
level of potential hearsay, his

statements to hospital personnel. We agree that those statements
were properly admitted either

because they were used for impeachment only and, thus, were not
hearsay, see Hall v.

Commonwealth, 233 Va. 369, 374, 355 S.E.2d 591, 594-95 (1987),
or because they were party

admissions and, thus, were admissible under an exception to the
hearsay rule, see Alatishe v.

Commonwealth, 12 Va. App. 376, 378, 404 S.E.2d 81, 82 (1991).



As to the second level hearsay issue, the medical records
containing appellant’s

statements were admissible if they satisfied the requirements of
the Confrontation Clause and the

business records exception to Virginia’s hearsay rule.

The Confrontation Clause of the Sixth Amendment, which

applies to the States, provides: "In all criminal
prosecutions, the

accused shall enjoy the right . . . to be confronted with the

witnesses against him." U.S. Const. amend. VI. The right to

confront witnesses secured by the Sixth Amendment encompasses

the right to cross-examine them. The right to confront and to

cross-examine witnesses is a "functional right" that
"advance[s] the

pursuit of truth" and "promotes reliability" in
criminal trials by

"ensuring that convictions will not be based on the charges

unseen and unknown—and hence unchallengeable—individuals."

Rankins v. Commonwealth, 31 Va. App. 352, 364, 523 S.E.2d 524,
530 (2000) (quoting Lee v.

Illinois, 476 U.S. 530, 540, 106 S. Ct. 2056, 2062, 90 L. Ed. 2d
514 (1986)) (citations omitted).

Under the Confrontation Clause, a hearsay statement of a
declarant not present at trial is

admissible "only if it bears adequate ‘indicia of
reliability.’" Ohio v. Roberts, 448 U.S. 56, 66,

100 S. Ct. 2531, 2539, 65 L. Ed. 2d 597 (1980). The United
States Supreme Court consistently

has held, for Confrontation Clause purposes,

that the veracity of hearsay statements is sufficiently
dependable to

allow the untested admission of such statements against an

when (1) "the evidence falls within a firmly rooted hearsay

exception" or (2) it contains "particularized
guarantees of

trustworthiness" such that adversarial testing would be
expected to

add little, if anything, to the statements’ reliability.

Lilly v. Virginia, 527 U.S. 116, 124-25, 119 S. Ct. 1887, 1894,
144 L. Ed. 2d 117 (1999)

(plurality opinion) (quoting Roberts, 448 U.S. at 66, 100 S. Ct.
at 2539).

The Supreme Court also has made clear "that unavailability
analysis is a necessary part of

the Confrontation Clause inquiry only when the challenged
out-of-court statements were made in

the course of a prior judicial proceeding." White v.
Illinois, 502 U.S. 346, 354, 112 S. Ct. 736,

741, 116 L. Ed. 2d 848 (1992) (emphasis added). "[I]f the
challenged out-of-court statements

were not made in the course of a prior judicial proceeding, the
statements must only show

‘indicia of reliability’ to meet the requirements of the
Confrontation Clause." State v. Sutherland,

939 S.W.2d 373, 378 (Mo. 1997) (citing White, 502 U.S. at 354,
112 S. Ct. at 741). The Court

held in White that "establishing a generally applicable
unavailability rule would have few

practical benefits [beyond the reliability requirements already
imposed by the Confrontation

Clause]" and would "impos[e] pointless litigation
costs" by requiring the prosecution "to

repeatedly locate and keep continuously available each
declarant, even when neither the

prosecution nor the defense has any interest in calling the
witness to the stand." White, 502 U.S.

at 355, 357, 112 S. Ct. at 742, 743.

Thus, if the business records exception to Virginia’s hearsay
rule is a "firmly rooted

hearsay exception" and the contested "evidence falls
within [that] exception," admission of the

hospital records did not violate the Confrontation Clause.

1. Requirements of Virginia’s Business Records Exception

The business records exception to the hearsay rule

allows introduction "into evidence of verified regular

entries without requiring proof from the original observers or

record keepers." Neeley v. Johnson, 215 Va. 565, 571, 211

100, 106 (1975). . . . "Admission of such evidence is

. . . on proof that the document comes from the proper custodian

and that it is a record kept in the ordinary course of business

contemporaneously with the event by persons having the duty to

keep a true record." "Automatic" Sprinkler [Corp.
of America v.

Coley & Peterson, Inc., 219 Va. 781, 793, 250 S.E.2d 765,

(1979)] . . . .

Sparks v. Commonwealth, 24 Va. App. 279, 282, 482 S.E.2d 69, 70
(1997). We also have noted

the exception requires proof that "the entrant is not
available" for trial.[1]
Tickel v.

Commonwealth, 11 Va. App. 558, 565, 400 S.E.2d 534, 538 (1991).

Virginia’s appellate courts have recognized that such
unavailability may be actual or

"commercial." Id. As the Supreme Court has implicitly
acknowledged, application of the

business records exception to the hearsay rule is appropriate
based on commercial unavailability

where "’the practical inconvenience of producing on the
stand the numerous persons thus

concerned [with creating the record] would in the particular
case outweigh the probable utility of

doing so.’" French v. Virginian Railway, 121 Va. 383, 386,
93 S.E. 585, 585 (1917) (quoting 2

Wigmore on Evidence ? 1530); see Charles E. Friend, The Law of
Evidence in Virginia ? 18-15,

at 772-73 (6th ed. 2003) (approving admission of hearsay
evidence under the business records

exception based on commercial unavailability "in any case
in which delay, expense, or disruption

of the business would result if the entrant[s were] summoned to
court to testify"). Under these

circumstances, the "absence" of the entrants need not
be further "accounted for." French, 121

Va. at 388, 93 S.E. at 586.

2. "Firmly Rooted" Hearsay Exception

Whether an exception is "firmly rooted" depends at
least in part on how long the

exception has been recognized by the legislature or the courts.
See Rankins, 31 Va. App. at 361

n.5, 523 S.E.2d at 528 n.5 (citing Lilly, 527 U.S. at 133-34,
119 S. Ct. at 1898-99); see also

Idaho v. Wright, 497 U.S. 805, 817-18, 110 S. Ct. 3139, 3148,
111 L. Ed. 2d 638 (1990) (noting

that codification of exception may be relevant to but is not
dispositive of "firmly rooted"

analysis). The business records exception to the hearsay rule
has been a part of Virginia law

since at least the Virginia Supreme Court’s 1917 decision in
French, 121 Va. 383, 93 S.E. 585.[2]

Virginia’s appellate courts have applied the business records
exception repeatedly since

that time. See, e.g., White Sewing Mach. Co. v. Gilmore
Furniture Co., 128 Va. 630, 645-47,

105 S.E. 134, 139-40 (1920); E. I. Du Pont De Nemours & Co.
v. Universal Moulded Prods.

Corp., 191 Va. 525, 567-68, 62 S.E.2d 233, 252-53 (1950) (citing
French and referring to rule as

"modern Shopbook Rule"); Dalton v. Johnson, 204 Va.
102, 104-06, 129 S.E.2d 647, 648-50

(1963); Neely v. Johnson, 215 Va. 565, 570-72, 211 S.E.2d 100,
105-06 (1975); Frye v.

Commonwealth, 231 Va. 370, 387, 345 S.E.2d 267, 279 (1986);
Kettler & Scott, Inc. v. Earth

Tech. Cos., 248 Va. 450, 457, 449 S.E.2d 782, 785 (1994); Frank
Shop, Inc. v. Crown Cent.

Petroleum Corp., 261 Va. 169, 175-76, 540 S.E.2d 897, 901

As the United States Supreme Court has recognized, where
"'[p]roperly administered[,]

the business . . . records exceptions would seem to be among the
safest of the hearsay exceptions

as the danger of inaccurate memory or narration on the part of
the witness is virtually removed.’"

Roberts, 448 U.S. at 66 n.8, 100 S. Ct. at 2539 n.8 (quoting
Comment, Hearsay, the

Confrontation Guarantee and Related Problems, 30 La. L. Rev.
651, 668 (1970)). We hold the

business records exception to Virginia’s hearsay rule is, in
fact, a "firmly rooted" exception.[3]

3. Admission of Appellant’s Hospital Records Under Exception

Virginia expressly permits the introduction of certain portions
of medical records under

the business records exception to its hearsay rule. See Dalton,
204 Va. at 104-06, 129 S.E.2d at

648-50 (admitting hospital records to show medical treatment
injured party received prior to

accident at issue); see also Neely, 215 Va. at 570-72, 211
S.E.2d at 105-06 (refusing to extend

Dalton to hold opinions in medical records admissible under
business records exception).

Appellant concedes the non-opinion portions of the emergency
room records would have

been admissible if the Commonwealth had laid a proper
foundation. He agrees that Clarissa Bell

was the proper custodian through whom the emergency room records
could be introduced and

argues that the records were improperly admitted solely because
the Commonwealth failed to

prove "the authors of the documents" were unavailable.
We hold the evidence in the record

established the authors’ "commercial unavailability"
as discussed in Part II.B.1. and, thus,

supported the trial court’s admission of the records into

The portions of the records to which appellant objects are the
places in which three

different members of the emergency room staff—one doctor and
two nurses—recorded three

similar reports from appellant regarding how he sustained the
injuries for which he sought

treatment. Just as was the case with the train records in
French, the "[medical records] of a

properly operated [hospital] must be accurately and properly
kept by the [treating doctors and

nurses], or else the lives . . . of its [patients] . . . are . .
. imperiled." French, 121 Va. at 386-87,

93 S.E. at 586; see also 12 VAC 5-410-370 (requiring that every
hospital licensed in state must

establish and maintain medical record for every person treated
and that content of record and

who may make entries shall comply with written policies and
procedures of hospital). Further,

appellant’s trial occurred almost eight months after he received
the emergency room treatment at

issue, reducing the likelihood that any of the emergency room
staffers who recorded appellant’s

statements would have an independent recollection of those
statements. Under these

circumstances, the evidence supported the trial court’s implicit
conclusion that "’the practical

inconvenience of producing on the stand the numerous persons
thus concerned [with creating the

medical records] would in [this] particular case outweigh the
probable utility of doing so.’"

French, 121 Va. at 386, 93 S.E. at 585 (quoting Wigmore, supra,
? 1530).

The trial court’s statement that proof of unavailability was not
a requirement of the

business records exception "[i]f you’ve got a custodian and
[the records are] kept in the ordinary

course of business" does not compel a different result.
Established precedent provides that,

[a]bsent clear evidence to the contrary in the record, the

of a trial court comes to us on appeal with a presumption that

law was correctly applied to the facts. . . . We will not fix

isolated statements of the trial judge taken out of the full
context in

which they were made, and use them as a predicate for holding

law has been misapplied.

Yarborough v. Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286,
291 (1977). Further, a "trial

court’s remark is not, in and of itself, ‘the full context’
simply because it represents the only point

at which the court [expressly] addressed the issue [in
dispute]." Bassett v. Commonwealth, 13

Va. App. 580, 583-84, 414 S.E.2d 419, 421 (1992) (applying

In light of these principles, coupled with the fact that the
challenged entries were made by

three different emergency room employees almost eight months
prior to trial, we interpret the

trial court’s statement as its recognition of the fact that the
proponent of the records need not

prove actual unavailability because commercial unavailability is
sufficient in a case such as this

one, in which the evidence supports a finding that "’the
practical inconvenience of producing’"

the doctor and two nurses "’outweigh[ed] the probable
utility of doing so.’" French, 121 Va. at

386, 93 S.E. at 585 (quoting Wigmore, supra, ? 1530).

Finally, we note that appellant sought only to preclude the
admission of the records into

evidence. Although he could have attempted to call the entrants
of the records as witnesses

himself, he did not claim unfair surprise when the Commonwealth
provided him with the records

on the day before trial. When the trial court ruled that the
records were admissible, he did not

request a continuance in order to attempt to secure the presence
of one or more of the entrants for

trial. See John Douglass, Confronting the Reluctant Accomplice,
101 Colum. L. Rev. 1797,

1847 (2001) discussing cases that note defendant’s failure to
call witness while simultaneously

raising confrontation issue). Instead, "[h]e sought only
suppression of the truth"—the fact that

he lied to the emergency room doctor and nurses about how he got
glass in his hand. See Lane v.

Commonwealth, 20 Va. App. 592, 595, 459 S.E.2d 525, 527 (1995)
(holding under Rule

3A:11(b)(1), which governs discovery in criminal cases, that
defendant who objected to

admission of evidence based on claim of surprise but failed to
request recess or continuance

sought "only suppression of the truth" and failed to
establish prejudice).


For these reasons, we hold the trial court’s admission of the
challenged medical records

into evidence did not violate the Confrontation Clause, and we
affirm appellant’s conviction.




Friend has opined that abolition of the unavailability requirement would do

little harm to Virginia law:

In theory, . . . there is a clear distinction between . . . the
true "shopbook

rule[," which] appl[ies] to the records of parties only and
requir[es] no showing of

"necessity" or "unavailability[," and] the
more modern "business records rule[,"

which] appl[ies] to any regularly kept business record and
requires at least a

showing of "commercial" unavailability, i.e.,

The Virginia courts have sometimes overlooked this distinction,

some attendant confusion in the cases. It is probable that the

distinction could be formally abolished, and the unavailability

abandoned, without greatly altering or affecting Virginia law,
particularly in view

of the weakening of the unavailability requirement by defining
it to include


Charles E. Friend, The Law of Evidence in Virginia ? 18-15, at
773 (6th ed. 2003) (footnotes



involved "entries, made in the established course of business, on train
sheets, by

[three different] train dispatchers, from reports telegraphed or
telephoned to them by station

agents as to the time of arrival and departure of trains."
121 Va. at 384, 93 S.E. at 585. The

Supreme Court upheld the admission of that evidence to prove the
location of a train at a certain

time, based on the testimony of a claims adjuster, an employee
of the company who had access

to all the company’s books and records. Id. at 385-87, 93 S.E.
at 585-86. The Court emphasized

the reliability of such records, noting

The train sheets of a properly operated railroad must be
accurately and properly

kept by the train dispatchers, or else the lives and property of
its passengers, the

safety of its [employees], and its own property are all
imperiled. Indeed, a

railway cannot be operated unless the train dispatchers are kept
informed as to the

location and movements of its trains. Outside of the courtroom
no one would

question the value of these records, for no other practical
method has been

devised to prevent collisions.

Id. at 386-87, 93 S.E. at 586.


[3]Several United
States Circuit Courts of Appeals have held that the federal business

records exception is "firmly rooted." See United
States v. Kelly, 892 F.2d 255, 262 n.4 (3d Cir.

1989); United States v. Roulette, 75 F.3d 418, 422 (8th Cir.
1996); United States v. Norton, 867

F.2d 1354, 1363 (11th Cir. 1989). Many states recognize the
business records exception as one

that is "firmly rooted" in their jurisprudence, as
well. See Brown v. State, 485 S.E.2d 486,

489-90 (Ga. 1997); Chapman v. State, 628 A.2d 676, 681 n.3 (Md.
Ct. App. 1993); Hankins v.

State, 735 So. 2d 317, 320 (Miss. 1999); Sutherland, 939 S.W.2d
at 378; People v. James, 717

N.E.2d 1052, 1065 (N.Y. 1999); State v. Webb, 638 N.E.2d 1023,
1032 (Ohio 1994); State v.

Brown, 480 N.W.2d 761, 763 (S.D. 1992); Hodgins v. State, 962
P.2d 153, 157 (Wy. 1998).