State v. Heiser
State v. Heiser
Opinion of the Court
The defendant’s first assignment of error concerns the trial court’s admission of a medical record. At trial Dr. Sam Yancey was permitted over the defendant’s objection to read into evidence a medical record prepared during an examination of the defendant’s son at the Durham Child Care Center by Dr. Arthur London, who was deceased at the time of trial. The record challenged by this exception reads as follows:
“Mother states child’s father pulled out his hair. There is an area of baldness the size of fifty cent piece at the left vertex. No other evidence of entry. The mother was advised to talk with the father concerning child abuse law, and if there is recurrence to report it.”
The defendant contends that the quoted record constitutes hearsay and does not fall within any recognized exception.
Our Supreme Court held in Sims v. Insurance Co., 257 N.C. 32, 125 S.E. 2d 326 (1962), that upon a proper foundation hospital and medical records are admissible under the business records exception to the hearsay rule. A proper foundation consists of the testimony by a witness familiar with such records and the system under which they are made that the record is authentic and that it was prepared at or near to the time of the event recorded by a person having personal knowledge of such event. Sims v. Insurance Co., supra; 1 Stansbury’s N.C. Evidence, § 155 (Brandis Rev. 1973). This rule has recently been re-affirmed by the Court of Appeals. Spillman v. Forsyth Memorial Hospital, 30 N.C. App. 406, 227 S.E. 2d 292 (1976); State v. Wright, 29 N.C. App. 752, 225 S.E. 2d 645 (1976).
The defendant advances no persuasive reasoning for his contention that the record in this case does not fall within the business records exception but simply asserts that because of the death of Dr. London the admission of the record would constitute a denial of his right to confrontation. Obviously, the right to confrontation which is guaranteed by the Constitution and represented by the hearsay rule admits to many exceptions when evidence is deemed reliable and trustworthy. 1 Stansbury, supra § 139. Business records constitute one such exception. A former prerequisite to the application of that exception was that the person making the entries must have been dead at the time of trial. 1 Stansbury, supra § 155. That this rule has been relaxed is an indication of the reliability which the courts impute to such records. Accordingly, the defendant’s argument is without merit.
The defendant also contends that the trial judge expressed an opinion in violation of G.S. 1-180 in his questioning of a State witness. It is established that a trial judge has the right and duty to control the examination of witnesses and to ask questions tending to clarify the witness’ testimony for the jury. State v. Tinsley, 283 N.C. 564, 196 S.E. 2d 746 (1973). In doing so, the judge must refrain from impeaching or discrediting a witness or demonstrating any hostility toward the witness thereby indirectly expressing an opinion in violation of G.S. 1-180. 1 Stansbury’s N.C. Evidence, § 37 (Brandis Rev. 1973).
In the present case the defendant’s wife, testifying for the State, stated on cross-examination that the child had fallen from his bed and sustained a slight tooth injury some time prior to the
Finally, the defendant excepts to the exclusion of certain evidence. On cross-examination of the defendant’s wife the defendant’s counsel asked the following question: “Did you put any specific dates in that complaint?” The State’s objection to the question was sustained by the trial court. The defendant contends that the question was “designed to test her memory with respect to specific dates of alleged child abuse occurrences originally given to her lawyer . . . when she instituted a civil action” for custody and support of their minor children. Accepting the defendant’s statement as to his purpose in asking the question, we think it was actually addressed to his wife’s ability to recall the substance of a complaint in an earlier lawsuit. As such, it was clearly irrelevant to the issues of the present case.
Under this same assignment of error the defendant cites the following instruction by the trial court:
Members of the jury, I have referred in each of the CASES AS TO A DATE BEING A FINDING THAT THE EVENTS MUST HAVE OCCURRED ON OR ABOUT A CERTAIN DATE. IT IS NOT ESSENTIAL THAT THE STATE PROVE THE EXACT DATE CHARGED IN A CASE OF THIS NATURE, BUT MUST PROVE A DATE SO NEAR TO THE DATE IN QUESTION THAT THE DEFENDANT WOULD HAVE ADEQUATE NOTICE OF THAT WITH WHICH HE IS CHARGED.
When this instruction is taken in conjunction with . . . the sustaining of an objection with respect to dates in an earlier complaint, the Court has put itself in the position of not allowing the Defendant to cross-examine the main prosecuting witness with respect to the date of alleged child abuse occurrences, thereby eliminating the Defendant’s ability to provide alibi testimony, and yet at the same time is instructing the jury that it is not essential that dates be proven exactly.
We see no relation between the question asked by the defendant on cross-examination and the quoted instruction. The defendant was free to question the witness as to specific dates of child abuse incidents by questions properly addressed to that end, and the record discloses that he did so. In the quoted instruction the trial judge merely explained the law of this State. See State v. Baxley, 223 N.C. 210, 25 S.E. 2d 621 (1943); State v. Lemmond, 12 N.C. App. 128, 182 S.E. 2d 636 (1971).
We hold that the defendant received a fair trial free from prejudicial error.
No error.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.