Commonwealth v. Ackerman (Lawyers Weekly No. 10-054-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11983 COMMONWEALTH vs. SARAH C. ACKERMAN. April 5, 2017. Supreme Judicial Court, Superintendence of inferior courts. Evidence, Medical record, Blood alcohol test. Constitutional Law, Confrontation of witnesses. Motor Vehicle, Operating under the influence. Practice, Criminal, Confrontation of witnesses, Interlocutory appeal. The defendant, Sarah C. Ackerman, appeals from a judgment of a single justice of the county court allowing the Commonwealth’s petition pursuant to G. L. c. 211, § 3. We affirm. Ackerman was charged in a complaint with operating while under the influence of intoxicating liquor, second offense, pursuant to G. L. c. 90, § 24 (1) (a) (1), and a marked lanes violation, pursuant to G. L. c. 89, § 4A. The charges resulted from a single vehicle accident in which the vehicle that Ackerman was driving struck a utility pole and rolled over. After the accident, Ackerman was transported to the hospital where medical personnel administered several computerized tomography (CT) scans and conducted several tests, including a blood alcohol test. Although Ackerman recognizes that medical records are generally admissible pursuant to G. L. c. 233, § 79, she filed a motion in limine to exclude evidence of the blood alcohol test from those records based on her right to confrontation under the Sixth Amendment to the United States Constitution. A judge in the District Court allowed the motion and later denied the Commonwealth’s motion for reconsideration. The Commonwealth then asked a different judge to “review and overrule” the decision. The second judge declined, but did allow the Commonwealth’s request to stay the proceedings until the following day to allow the Commonwealth time “to appeal [from the] in limine ruling.” The Commonwealth filed its G. L. c. 211, § 3, petition that same day, and on the following day, a single justice allowed it without a hearing.[1] As Ackerman correctly notes, the fact that the Commonwealth does not have any other remedy does not make review pursuant to G. L. c. 211, § 3, automatic, and this court rarely allows Commonwealth appeals from interlocutory rulings. See Commonwealth v. Narea, 454 Mass. 1003, 1004 n.1 (2009), and cases cited. It is equally true, however, that a single justice has the discretion to address the merits of any such petition and that “we will not disturb the judgment absent an abuse of discretion or clear error of law.” See id. at 1004. There is no such abuse of discretion or clear […]