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Commonwealth v. Irene Opinion Summary: A taxicab driver was robbed at knifepoint by a passenger wearing a hat that covered most of his face; the driver fired his pistol at the fleeing robber, wounding him in the back. Police located defendant near the scene of the robbery suffering from an apparent gunshot wound to his back, but no witness was able to identify him as the robber. Defendant claimed to have been shot in an unrelated incident by unknown assailants. Convicted of armed robbery, G.L. c. 265, 17, defendant appealed, arguing that certain statements allegedly made by the fleeing robber were hearsay and should not have been admitted; that a statement attributed to defendant contained in his medical records ("he was in a taxicab when he got shot") was inadmissible as hearsay; and that, even if not hearsay, the admission of the medical records violated his right to confrontation under the Sixth Amendment. The supreme court affirmed, finding error but no prejudice. The trial judge erred in admitting defendant's medical records under the statutory exception for business records, G.L. c. 233, 78, and the disputed portion of the records was not shown to be admissible under the hospital records statute, G.L. c. 233, 79. COMMONWEALTH vs. Herman IRENE. SJC-10882. October 6, 2011. - June 26, 2012. Robbery. Evidence, Hearsay, Spontaneous utterance, Medical record, Business record, Hospital record. Practice, Criminal, Hearsay, Confrontation of witnesses. Constitutional Law, Confrontation of witnesses. INDICTMENT found and returned in the Superior Court Department on March 28, 2007. A pretrial motion to suppress evidence was heard by Howard J. Whitehead, J., and the case was tried before him. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Jennifer H. O'Brien (Dana Alan Curhan with her) for the defendant. Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth. Dana Alan Curhan, for Committee for Public Counsel Services, amicus curiae, submitted a brief. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. DUFFLY, J. A taxicab driver in Lawrence was robbed at knifepoint by a passenger wearing a hat that covered most of his face; the driver fired his pistol at the fleeing robber, wounding him in the back. Police located the defendant near the scene of the robbery suffering from an apparent gunshot wound to his back, but no witness was able to identify him as the robber. The defendant testified at trial, denying that he was the robber and claiming to have been shot in an unrelated incident by unknown assailants. A Superior Court jury convicted the defendant of armed robbery, G.L. c. 265,

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