COMMONWEALTH vs. JOSEPHINE K. PELLEGRINI.

LYNCH, J. At issue in this case is whether the pretrial dismissal, over the Commonwealth's objection, of a grand jury indictment, violated art. 30 of the Massachusetts Declaration

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of Rights. [Note 1] The indictment charged the defendant with possession of cocaine, in violation of G. L. c. 94C, Section 34 (1990 ed.). [Note 2] The judge allowed the defendant's motion to dismiss, ruling that the use of the newborn's urinalysis to prosecute his mother for possession of narcotics, not child abuse, is beyond the scope and defeats the purpose of the statute used to obtain the evidence. G. L. c. 119, Sections 51A, 51B (1990 ed.) [Note 3] We granted the Commonwealth's application for direct appellate review. We reject the defendant's claim that she has a privacy right in her child's hospital record. We agree with the Commonwealth that the pretrial dismissal of the indictment was improper.

The judge found the following facts in her memorandum of decision and order granting the motion to dismiss the in-

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dictment for possession of cocaine. On July 2, 1989, the defendant gave birth. The medical staff at Brockton Hospital tested a sample of the infant's urine, revealing the presence of cocaine metabolites which are the product of cocaine after it has been broken down by the liver in preparation for excretion from the body. The Commonwealth alleges that the presence of such metabolites indicates that the mother must have ingested cocaine and passed it in utero to the fetus shortly before birth. [Note 4]

On August 15, 1989, the child was taken to the Brockton Hospital after a report that he had sustained injuries on his toes believed to be burn marks. Pediatric physicians at Brockton Hospital concluded that the burns had been inflicted by a cigarette or similar object. En route to the hospital, the defendant stated to the police that she had been using drugs during her pregnancy.

1. Pretrial dismissal. On appeal, the Commonwealth argues that the judge violated art. 30 in dismissing the indictment for possession. See note 2, supra. The defendant contends that the judge correctly dismissed the case thereby protecting the defendant's fundamental State and Federal constitutional rights. [Note 5]

Article 30 creates a separation of power between the branches of government essentially granting the prosecutor exclusive power to decide whether to prosecute a case. Burlington v. District Attorney for N. Dist., 381 Mass. 717, 721 (1980). Pretrial dismissal, over the Commonwealth's objection, of a valid complaint or indictment before a verdict, finding, or plea, and without an evidentiary hearing basically quashes or enters a nolle prosequi of the complaint or indictment. See Commonwealth v. Gordon, 410 Mass. 498, 503 (1991) (when a lawful complaint is dismissed prior to trial it

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"prematurely cuts off the prosecution without a legal basis"). See also Commonwealth v. Brandano, 359 Mass. 332, 334-335 (1971); Commonwealth v. Bressant, 126 Mass. 246, 247 (1879). A decision to nolle prosequi a criminal case rests with the executive branch of government and, absent a legal basis, cannot be entered over the Commonwealth's objection. Commonwealth v. Gordon, supra at 500. See Shepard v. Attorney Gen., 409 Mass. 398, 401 (1991) (prosecutors have broad discretion in determining whether to prosecute a case); Manning v. Municipal Court of the Roxbury Dist., 372 Mass. 315, 318 (1977) (discretion lies with the prosecutor whether to prosecute a case and when to discontinue prosecution without appeal or approval of another official); Commonwealth v. Dascalakis, 246 Mass. 12, 18 (1923) (power to enter a nolle prosequi rests with the prosecuting officer from indictment until the start of trial unless clear abuse of authority); Commonwealth v. Hart, 149 Mass. 7, 8 (1889) (only the prosecutor has authority to refuse to prosecute a case on behalf of the Commonwealth); Commonwealth v. Tuck, 20 Pick. 356, 366 (1838) (power to enter nolle prosequi is with the prosecutor without the court's interference); Commonwealth v. Wheeler, 2 Mass. 172, 173 (1806) (power and responsibility of entering a nolle prosequi is for the prosecutor alone). In some instances a judge may properly dismiss an indictment over the objection of the prosecutor. See Angiulo v. Commonwealth, 401 Mass. 71, 79 (1987) (double jeopardy principles will bar the Commonwealth's prosecution); Commonwealth v. O'Dell, 392 Mass. 445, 447 (1984) (improper presentation of evidence to the grand jury requires dismissal of indictment); Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982) (insufficient evidence presented to the grand jury to justify arrest of defendant); Commonwealth v. Salman, 387 Mass. 160, 166 (1982) (when it appears that grand jury integrity is impaired, defendant is entitled to evidentiary hearing to resolve the issue). This case does not fall within any of these exceptions, but rather is governed by the general rule that an indictment valid on its face should not be dismissed absent a showing that the defendant's ability to

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obtain a fair trial is prejudiced. Commonwealth v. Freiberg, 405 Mass. 282, 300-301 (1989). Furthermore, pretrial dismissal cannot be sustained if, as here, the Commonwealth fails or refuses to stipulate that it has presented all the proof available for a contemplated trial. Id. See also Rosenberg v. Commonwealth, 372 Mass. 59, 63 (1977) (claim of insufficient evidence to be presented at trial cannot justify dismissal absent affidavit or stipulation of facts by Commonwealth).

The defendant also argues that she had no notice that her newborn's urine could be used as evidence in a prosecution against her, and, therefore, her due process rights were violated. [Note 6] Under G. L. c. 94C, Section 34, possession of a controlled substance may be constructive and shown by circumstantial evidence. See Commonwealth v. Pratt, 407 Mass. 647, 651 (1990); Commonwealth v. Dinnall, 366 Mass. 165, 168-169 (1974). The burden of proving all requisite elements of a possession charge is on the Commonwealth at trial, where it may be determined what criminal conduct is sufficiently delineated to put an average person on notice of what is prohibited. [Note 7] Once on trial, the defendant may utilize all procedural

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and evidentiary safeguards available to ensure a fair trial and protection of her constitutional rights.

2. Admissibility of hospital records. The judge dismissed the indictment because of her view that the defendant possessed an overriding privacy interest in her child's medical records and further that use of the medical records would contravene the purpose of both the child abuse and drug possession statutes in violation of the defendant's due process rights. The confidentiality and right to privacy of medical records and treatment is addressed under G. L. c. 233, Section 79 (1990 ed.). [Note 8] This statute permits the court, in its discretion,

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to allow in evidence hospital records to prove the truth of the facts in the record as they relate to the medical history and treatment. See Doyle v. Dong, 412 Mass. 682, 684 (1992); Commonwealth v. Perry, 385 Mass. 639 (1982). We have permitted the admission of statements and tests contained in hospital records which bear on criminal culpability if they relate only incidentally to the issue of liability. See Commonwealth v. Gogan, 389 Mass. 255, 263 (1983) (hospital record admissible which contained notations that defendant was violent and intoxicated on admission to the hospital in case charging assault and battery on police officer); Commonwealth v. Franks, 359 Mass. 577, 579-580 (1971) (test result revealing presence of sperm in victim admissible by prosecution in rape case); Commonwealth v. Russo, 30 Mass. App. Ct. 923 (1991) (blood alcohol level admissible as part of hospital record because presumption of reliability attaches to records relied upon when treating patients); Commonwealth v. Riley, 22 Mass. App. Ct. 698, 699-700 (1986) (hospital record containing blood test result admissible because it was ordered for medical reasons); Commonwealth v. McNickles, 22 Mass. App. Ct. 114, 123 (1986) (hospital records admitted which contained diagnosis of rape, and test results showing presence of semen). The judge has discretion in determining whether disclosure is appropriate, Commonwealth v. Perry, 385 Mass. 639, 642 (1982), and if admitted, the evidence may be "contradicted, qualified, believed or disbelieved." Commonwealth v. Franks, supra at 581.

Furthermore, the defendant's privacy and due process arguments assume that the defendant has the same privacy right in her child's medical record as she does in her own. This assumption is not correct. To permit parents to exclude medical or hospital records of their child on a privacy claim could be adverse to the child's best interests. See Adoption of Diane, 400 Mass. 196, 202 (1987) (privilege belongs to patient who has the burden of asserting the privilege; in care and protection proceeding it would be anomalous to permit the parent to assert privilege); Petitions of the Dep't of Social Servs. to Dispense with Consent to Adoption, 399 Mass.

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279, 286-287 (1987) (parent's hospital records are admissible under G. L. c. 233, Section 79, in a parental termination proceeding). "[R]elevant evidence given by medical personnel concerning the treatment of a patient is admissible" and does not raise an issue of privacy. Commonwealth v. Dube, 413 Mass. 570, 571 (1992) (Commonwealth can introduce at trial hospital record revealing elevated alcohol level found on routine blood test performed at the direction of physician).

Furthermore, the Legislature has recognized that prenatal exposure to a controlled substance is probative of neglect by the mother. See G. L. c. 119, Section 51A (presence of drug addiction in newborn constitutes abuse). Other jurisdictions also find evidence of neglect based on prenatal exposure to drugs. See Minn. Stat. Section 626.556(2)(c) (1989) (neglect includes prenatal exposure to a controlled substance used by mother for nonmedical purpose and detected by toxicology on child or mother after delivery); Fla. Stat. ch. 415.503(9)(a)(2) (1991) (drug dependency of newborn ground for suspicion of child abuse and neglect); Ind. Code Section 31-6-4-3.1 (1989) (neglect includes newborn whose blood or urine contains any amount of a controlled substance). Additionally, some States have imposed civil liability on the mother for drug impairment of their newborn children. See In re Stefanel Tyesha C., 157 A.D.2d 322 (N.Y. 1990) (mother's admitted drug use and child's positive toxicology for cocaine at birth sufficient for cause of action for neglect); In re Troy D., 215 Cal. App. 3d 889, 895, 900-901 (1989) (mother charged with neglect when newborn tested positive for cocaine had no right to prevent disclosure of child's medical records); In re Ruiz, 27 Ohio Misc. 2d 31, 35 (1986) (mother's use of heroin constituted abuse of viable fetus under child abuse statute); Matter of Baby X, 97 Mich. App. 111, 115-118 (1980) (best interests of child permit examination of all prenatal conduct that impacts child, including hospital records).

Accordingly, the order dismissing the indictment for possession of a class B substance, cocaine, is reversed, and the

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case is remanded to the Superior Court for further proceedings consistent with this opinion.

So ordered.