State v. Gonzalez

852 P.2d 851, 120 Or. App. 249, 1993 Ore. App. LEXIS 787

• Court: Court of Appeals of Oregon
• Decided: May 19, 1993
• Docket: 90-1448; CA A69492
• Status: Published

Opinions

RICHARDSON, C. J.

Defendant was charged with manslaughter in the second degree, ORS 163.125, driving under the influence of intoxicants, ORS 813.010, and reckless driving. ORS 811.140. The state appeals a pretrial order excluding evidence about defendant’s blood alcohol content and his appearance when admitted to a hospital. Defendant cross-appeals from an order denying his motion to exclude the hospital records. We reverse on appeal and affirm on cross-appeal.

Defendant was involved in a motor vehicle accident that resulted in the death of another person. Defendant was injured in the accident and was taken to a hospital. A blood-alcohol test was done by the hospital, which showed an alcohol content of. 12 percent. The state submitted the case to the grand jury. Part of the evidence before the grand jury was the hospital records, which included the results of defendant’s blood alcohol test and a statement by one of the examining physicians, Dr. Grady, that defendant “appeared intoxicated.”

Before trial, defendant moved to dismiss the indictment or, in the alternative, to exclude testimony derived from the hospital records because the state had failed to disclose, on the foot of the indictment, that the hospital records had been admitted before the grand jury, in violation of ORS 132.580(1). The state explained that it had not listed the hospital records or the custodian of the records on the indictment, because it had concluded that ORS 132.580 did not require the state to do so. The trial court denied defendant’s motion to dismiss the indictment, but ruled that the failure to list the hospital records on the foot of the indictment violated ORS 132.580 and that the violation was not inadvertent, ORS 132.580(2)(a). The court concluded that the appropriate remedy was

“to bar trial testimony derived from the hospital records, specifically the testimony of the toxicologist Mariis Coleman as to defendant’s blood alcohol and testimony of Dr. Ian Grady as to defendant’s state of intoxication in the emergency room shortly after the accident.”

On appeal, the state argues that the trial court erred when it excluded the testimony, because ORS 132.580(1) does not require that persons noted in the hospital records, who may be witnesses at trial, be noted on the indictment. Defendant responds that statements made by Coleman and Grady in the hospital records constitute “reports” under ORS 132.580(1) and ORS 132.320(2), and that ORS 132.580(1) requires their names to be listed.

ORS 132.580 provides:

“(1) When an indictment is found, the names of the witnesses examined before the grand jury that returned the indictment and the names of those whose reports were received by such grand jury pursuant to ORS 132.320(2) must be inserted at the foot of the indictment, or indorsed thereon, before it is filed. The indorsement shall show whether the witness gave testimony before the grand jury or filed a report.

“(2) A witness examined before the grand jury whose name is not indorsed on the indictment shall not be permitted to testify at trial without the consent of the defendant, unless the court finds that:

“(a) The name of the witness was omitted from the indictment by inadvertence; and

“(b) The name of the witness was furnished to the defendant by the state at least 10 days before trial; and

“(c) The defendant will not be prejudiced by the omission.”

Subsection (1) requires only two things to be endorsed on the foot of the indictment: the names of the witnesses who were examined before the grand jury and the names of persons whose reports were submitted under ORS 132.320(2).¹ Coleman and Grady do not come under either of these categories. They were not persons whose reports were submitted pursuant to ORS 132.320(2), because hospital records are not “reports” as described in ORS 132.320(2). Coleman and Grady also were not witnesses examined before the grand jury. The plain meaning of the phrase “examined before the grand jury” is that the witness appeared and testified in person. The commentary to the proposed 1973 amendment to ORS 132.580 reflects that meaning:

“The witness-name requirement would apply only to witnesses who testified before the grand jury that indicted the defendant.” Commentary, Proposed Oregon Criminal Code 50, § 85 (1972).

Because Coleman and Grady did not appear and testify before the grand jury, their names were not required to be listed on the indictment. Consequently, there was no violation of ORS 132.580 and no need to impose sanctions.

The dissent nevertheless urges that the trial court properly excluded the testimony, because the state deliberately sought to avoid the intent of the statute and the remedy provided in ORS 132.580(2) was rendered meaningless.

We disagree with the dissent, because it imposes a common law rule of suppression that goes beyond the mandate of the statute and its expressly provided remedy. ORS 132.580 does not require that evidence presented to a grand jury be listed on the indictment, it only requires that the names of witnesses “examined before the grand jury” and the names of persons “whose reports were received” pursuant to ORS 132.320(2) be included in the indictment. Because the statute expressly limits its scope to those categories, we are not free to amend the statute by requiring evidence or other information to be noted on the foot of the indictment. Royal Aloha Partners v. Real Estate Div., 59 Or App 564, 651 P2d 1350 (1982).

A similar analysis applies to the remedy provided in ORS 132.580(2). See State v. Stout, 305 Or 34, 749 P2d 1174 (1988). In Stout, the court held that an indictment cannot be attacked on the ground that the grand jury heard the wrong type of evidence. In that case, the defendant asked that the indictment be dismissed because the witnesses before the grand jury had no personal knowledge of the crime and their testimony recited inadmissible hearsay. The court held that the indictment could not be dismissed on that basis. In essence, the court concluded that it would not go behind the indictment to determine its validity. Any challenge to an indictment would be limited by ORS 135.510, and that statute did not include the remedy of dismissal, because the grand jury had considered inadmissible hearsay evidence.

By parity of reasoning, we cannot go behind an indictment to exclude testimony or other evidence from the trial except as specifically allowed by statute. The only statute allowing such exclusion is ORS 132.580(2), and it restricts exclusion to a witness who was examined before the grand jury and whose name is not endorsed on the indictment. Here, the potential witnesses’ statements were disclosed to the grand jury via the hospital records. That may have been inadmissible hearsay, but see OEC 803(6); it was not “witnesses examined before the grand jury.” This is no different than the statements of potential witnesses disclosed to the grand'jury by the police reports in State v. Stout, supra. The trial court erred in excluding the testimony.

On cross-appeal, defendant contends that the trial court erred when it denied his motion to suppress all of the hospital records. He argues that the state was required to follow the procedures provided in ORCP 55H² when it procured the hospital records for the grand jury proceeding.

The rules of civil procedure only govern civil actions and special proceedings, unless their applicability is otherwise extended by statute or rule. ORCP 1A. ORS 136.600 makes specific provisions of ORCP applicable to criminal proceedings:

“The provisions of ORS 44.150 and ORCP 39 B. and 55 E. and G. apply in criminal actions, examinations and proceedings.”

The state contends that, because ORS 136.600 does not mention ORCP 55H, the rule does not apply to criminal proceedings. Defendant argues that ORS 41.945 provides a separate statutory basis for applying ORCP 55H to criminal proceedings:

“ORCP 55 H. appl[ies] in any proceedings in which testimony may be compelled.”

Defendant reasons that, because testimony in a grand jury proceeding may be compelled, ORCP 55H applies to the state’s procurement of the hospital records.

We decline to read ORS 41.945 as incorporating ORCP 55H into criminal proceedings. ORS 136.600 specifically incorporates those provisions of ORCP applicable to criminal proceedings. We interpret the express terms of a statute as reflective of legislative intent to exclude unmentioned terms. Royal Aloha Partners v. Real Estate Div., supra, 59 Or App at 568. The legislative context of the applicable statutes supports that conclusion. ORS 41.945, ORS 136.600 and ORCP 55H were amended by the same bill in 1979. Or Laws 1979, ch 284, §§ 78, 115 and 35. If the legislature had intended ORCP 55H to apply to criminal proceedings, it would have included the provision in ORS 136.600. ORCP 55H does not apply to criminal proceedings.

Alternatively, defendant argues that the state’s use of a subpoena instead of a warrant to obtain the hospital records violates Article I, section 9, of the Oregon Constitution. He asserts that ORS 192.525 and ORS 192.530³ create for the patient a reasonable expectation of privacy in hospital records.

Defendant’s argument blurs the distinction between rights created by statute and those recognized by section 9. The statutes cited create a legislative policy of confidentiality for medical records created by third persons; they do not create constitutionally protected privacy or possessory interests. Furthermore, to prove a constitutional violation under Article I, section 9, defendant must demonstrate that the state significantly interfered with his privacy or possessory interests. See State v. Kosta, 304 Or 549, 553-54, 748 P2d 72 (1987). The records subpoenaed by the state were owned, made, kept and guarded by the hospital.⁴ The state did not violate Article I, section 9, by using a subpoena to obtain the hospital records.⁵

Reversed on appeal; affirmed on cross-appeal.

1 ORS 132.320(2) provides:

“A report or a copy of a report made by a physicist, chemist, medical examiner, physician, firearms identification expert, examiner of questioned documents, fingerprint technician, or an expert or technician in some comparable scientific or professional field, concerning the results of an examination, comparison or test performed by such person in connection with a case which is the subject of a grand jury proceeding, shall, when certified by such person as a report made by such person or as a true copy thereof, be received in evidence in the grand jury proceeding.”

2 ORCP 55H outlines the procedure for obtaining a person’s hospital records in a civil proceeding. We do not quote the rule because of its length.

3 ORS 192.525 provides:

“The Legislative Assembly declares that it is the policy of the State of Oregon to protect both the right of an individual to have the medical history of the individual protected from disclosure to persons other than the health care provider and insurer of the individual who needs such information, and the right of an individual to review the medical records of that individual. It is recognized that both rights may be limited, but only to benefit the patient. These rights of confidentiality and full access must be protected by private and public institutions providing health care services and by private practitioners of the healing arts. The State of Oregon commits itself to fulfilling the objectives of this public policy for public providers of health care. Private practitioners of the healing arts and private institutions providing health care services are encouraged to adopt voluntary guidelines that will grant health care recipients access to their own medical records while preserving those records from unnecessary disclosure.” ORS 192.530 provides:

“The Health Division of the Department of Human Resources and those boards licensing the healing arts that have been established in the division shall assist private health care providers in this state to develop guidelines necessary to fulfill this state’s policy of facilitating a patient’s access to medical records referring to the patient and limiting disclosure, without the patient’s consent, to persons other than the health care provider and insurer of the patient who needs such information. Such guidelines shall be reported to the Sixtieth Legislative Assembly.”

4 This case is not like State v. Tanner, 304 Or 312, 745 P2d 757 (1987), where the defendant “entrusted” property to a third party as collateral for a loan.

5 We do not address defendant’s final argument, because it was not raised below.