State Of Washington, Res. v. Negatu Abebe Fentahun, App. ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, NO. 69918-1-1 rJ ta ••
c=3 :_.j;
Respondent, DIVISION ONE P1 m
az _••
v.
UNPUBLISHED OPINION °1
NEGATU ABEBE FENTAHUN,
Appellant. FILED: August 18, 2014 cf
Leach, J. — Negatu Fentahun appeals his conviction for assault in the
second degree. He claims that the trial court violated his confrontation clause
rights by admitting a tape of a 911 call and statements that a nontestifying
witness made to an emergency room social worker. Fentahun also challenges
the admission of this nontestifying witness's statements under ER 803(a)(4)
because the witness did not make these statements for the purpose of his own
medical diagnosis or treatment. Because Fentahun fails to show that the
admission of the challenged evidence was improper, we affirm.
FACTS
On July 13, 2010, Fentahun got into an argument with his 28-year-old
sister, Wosenyelesh, at their residence. When Fentahun jumped forward and hit
Wosenyelesh on the head, she fell down. He then jumped on her back, grabbed
her head, and struck her multiple times in the face with a closed fist. Fentahun
then fled the residence.
NO. 69918-1-1/2
Fentahun and Wosenyelesh's brother Amanuel witnessed the incident.
Amanuel called 911. When the 911 operator asked what happened, Amanuel
stated, "See my brother beat up my sister so bad, her two teeth went out, and
she got like a big eye uh a eye swollen," and also stated, "Please hurry up okay."
He told the operator, "She's awake, but she like blacked out. You could . . . she
needs help right now please." He also stated that the incident occurred "[l]ike
three, four minute ago" and that Fentahun had run away. Amanuel provided
Fentahun's name and description and told the 911 operator that Fentahun had
no weapons.
Wosenyelesh lost one tooth and two others remained loose in her mouth.
She had swelling and bleeding around her mouth and around her left eye. She
also had a cut underneath her left eye.
Paramedics transported Wosenyelesh to Harborview Hospital before
police arrived. Amanuel rode in the ambulance to Harborview.
At Harborview, Wosenyelesh and Amanuel spoke with emergency room
social worker Annie Drummond. Amanuel told Drummond about the events that
he witnessed and that he tried to intervene but was unable to do so. After
speaking with Drummond, Amanuel called the Seattle Police Department to file a
report.
On July 19, 2010, Fentahun arrived at the police precinct and stated that
his family told him police were looking for him. Fentahun told a police officer that
his sister walked up behind him while he was arguing with his mother. When he
-2-
NO. 69918-1-1/3
turned around, his head collided with his sister's, and she fell onto a chair and hit
her mouth. Fentahun told the officer that he was so mad after the argument with
his mother that he left the house. The officer believed that Fentahun was
describing the July 13 incident and asked him for identification. Police arrested
Fentahun.
The State charged Fentahun with assault in the second degree with a
special allegation of domestic violence. Wosenyelesh did not appear at trial, and
Amanuel did not testify. A jury convicted Fentahun as charged, and the court
imposed a standard range sentence.
Fentahun appeals.
STANDARD OF REVIEW
We review alleged confrontation clause violations de novo.1 We apply a
harmless error analysis.2 The error is harmless if, considering the untainted
evidence, we are convinced beyond a reasonable doubt that any reasonable jury
would have reached the same result in the absence of the error.3 We presume
that the error is prejudicial, and the State bears the burden of proving beyond a
reasonable doubt that the error did not contribute to the jury's verdict/4
•
1 State v. Jasper, 174 Wash. 2d 96, 108, 271 P.3d 876 (2012).
2 State v. Fraser, 170 Wash. App. 13, 23, 282 P.3d 152 (2012) (citing
Jasper, 174 Wash. 2d at 117V review denied, 176Wn.2d 1022(2013).
3Fraser, 170 Wash. App. at 23 (quoting State v. Gulov, 104 Wash. 2d 412, 425,
705P.2d 1182(1985)).
4 Fraser, 170 Wash. App. at 23-24 (citing Gulov, 104 Wash. 2d at 425; Jasper,
174Wn.2dat117).
NO. 69918-1-1/4
We review decisions on the admissibility of evidence under an abuse of
discretion standard.5 An abuse of discretion exists "[wjhen a trial court's exercise
of its discretion is manifestly unreasonable or based upon untenable grounds or
reasons."6 A discretionary decision "is based 'on untenable grounds' or made
'for untenable reasons' if it rests on facts unsupported in the record or was
reached by applying the wrong legal standard."7
ANALYSIS
Fentahun claims that the trial court should have excluded as testimonial
hearsay a tape of the 911 call and Amanuel's statements to Drummond.8 Under
the federal confrontation clause, a criminal defendant has the right to confront
and to cross-examine adverse witnesses.9 The confrontation clause bars the
admission of "testimonial" hearsay unless the declarant is unavailable to testify
and the defendant had an earlier opportunity to cross-examine the declarant.10
5 State v. Stenson, 132 Wash. 2d 668, 701, 940 P.2d 1239(1997).
6 Stenson, 132 Wash. 2d at 701 (citing State v. Powell, 126 Wash. 2d 244, 258,
893 P.2d 615 (1995)).
7 State v. Rohrich, 149 Wash. 2d 647, 654, 71 P.3d 638 (2003) (quoting State
v. Rundquist, 79 Wash. App. 786, 793, 905 P.2d 922 (1995)).
8 The trial court admitted a transcript of the 911 call for illustrative
purposes.
9 U.S. Const, amend. VI; Douglas v. Alabama, 380 U.S. 415, 418, 85 S.
Ct. 1074, 13 L. Ed. 2d 934 (1965). The Sixth Amendment applies to the states
through the due process clause of the Fourteenth Amendment. Pointer v. Texas,
380 U.S. 400, 403, 85 S. Ct. 1065, 13 L Ed. 2d 923 (1965).
10 Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 L.
Ed. 2d 177(2004).
NO. 69918-1-1/5
This guarantees an adequate opportunity for effective cross-examination.11 The
prosecution has the burden to establish that statements are not testimonial.12
Although Washington courts have not adopted a comprehensive list of
what qualifies as a testimonial statement, the courts have found that statements
are testimonial in nature "when the circumstances objectively indicate that there
is no . . . ongoing emergency, and that the primary purpose of the interrogation is
to establish or prove past events potentially relevant to later criminal
prosecution."13 "Statements are nontestimonial when made in the course of
police interrogation under circumstances objectively indicating that the primary
purpose of the interrogation is to enable police assistance to meet an ongoing
emergency."14
To help decide if statements are not testimonial, the court considers (1) if
the speaker was speaking about past events or current ones, as they occurred,
requiring police assistance; (2) if a reasonable listener would conclude that the
speaker was facing an ongoing emergency that required help; (3) the nature of
11 Davis v. Alaska, 415 U.S. 308, 316-18, 94 S. Ct. 1105, 39 L. Ed. 2d 347
(1974); State v. Hudlow, 99 Wash. 2d 1, 15-16, 659 P.2d 514 (1983). "Bias
is . . . the relationship between a party and a witness which might lead the
witness to slant, unconsciously or otherwise, his testimony in favor of or against a
party. Bias may be induced by a witness' like, dislike, orfear of a party, or by the
witness' self-interest." United States v. Abel, 469 U.S. 45, 52, 105 S. Ct. 465, 83
L. Ed. 2d 450 (1984).
12 State v. O'Cain, 169 Wash. App. 228, 235, 279 P.3d 926 (2012).
13 Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 165 L. Ed. 2d
224 (2006).
14 State v. McWilliams, 177 Wash. App. 139, 156, 311 P.3d 584 (2013)
(citing State v. Koslowski, 166 Wash. 2d 409, 418, 209 P.3d 479 (2009)), review
denied, 179 Wash. 2d 1020 (2014).
NO. 69918-1-1/6
the questions asked and answered; and (4) the interrogation's formality.15 A
conversation can contain both testimonial and nontestimonial statements. A
conversation to learn about any need for emergency assistance can become
testimonial when the emergency appears to have ended or the information
necessary to meet the emergency has been obtained.16 Witness statements to a
medical doctor are not testimonial, and their admission does not violate the
confrontation clause (1) when made for the purpose of diagnosis and treatment,
(2) when no evidence indicates that the witness expected the statements to be
used at trial, and (3) when the doctor is not employed by or working with the
State.17
Fentahun claims that the trial court should have excluded the 911 call as
testimonial hearsay because a conversation that "began to determine the need
for emergency assistance" "quickly evolved into testimonial statements divorced
from getting medical help for the caller's sister. At that point the circumstances
objectively indicate the primary purpose was is [sic] to establish or prove the
facts of a past crime in order to identify the perpetrator." He argues that the
caller described a past event. He claims that the caller "was only asked a couple
of questions regarding [Wosenyeleshj's medical condition. He was asked if she
needed a medic and whether she was conscious" and asserts, "The rest of the
15 Koslowski, 166 Wash. 2d at 418-19.
16 Koslowski, 166 Wash. 2d at 419 (citing Davis, 547 U.S. at 828).
17 State v. Sandoval, 137 Wash. App. 532, 537, 154 P.3d 271 (2007) (citing
State v. Moses, 129 Wash. App. 718, 729-30, 119 P.3d 906 (2005)).
NO. 69918-1-1/7
questions were related to the incident and identity of the assailant. The
questions and the answers that were elicited were not necessary to resolve a
present emergency." Fentahun also alleges that because the caller told the 911
operator that the assailant had left and had no weapons, no ongoing emergency
existed. He contends that "the questioning was less formal than a face-to-face
interrogation with police, the questions were pointed and direct. Few of the
caller's statements were spontaneous, and the caller was speaking from a place
of safety."
We reject Fentahun's arguments and conclude that the statements in the
911 call were not testimonial. First, the record indicates that the caller sought
medical help as a result of an incident that occurred "[l]ike three, four minute[s]
ago." A speaker may speak contemporaneously of past events if the speaker
connects the past events with ongoing ones.18
Second, courts recognize two ways that an ongoing emergency may exist:
first, if the crime is still in progress and, second, if the victim is in danger, either
because of the need for medical assistance or because the defendant poses a
threat.19 Although the caller reported that Fentahun ran away and had no
weapons, a reasonable listener could conclude that an ongoing emergency
18 Koslowski, 166 Wash. 2d at 422-23 n.8 ("[l]t is not inconsistent to speak of
past events in conjunction with an ongoing emergency and, in appropriate
circumstances, considering all of the factors the Court identified [in Davis], the
fact that some statements are made with regard to recent past events does not
cast them in testimonial stone.").
19 Koslowski, 166 Wash. 2d at 419 n.7 (citing State v. Shea, 184 Vt. 453, 460,
965 A.2d 504 (2008)).
-7-
NO. 69918-1-1/8
existed based on the caller's statements: "[M]y brother beat up my sister so bad,
her two teeth went out, and she got like a big eye uh a eye swollen"; "Well my
brother beat up my sister so bad so she need a paramedic right now"; and "She's
awake, but she like blacked out. You could ... she needs help right now
please." These statements show a concern for Wosenyelesh's well-being
because of her need for medical assistance.
Third, the caller focused on his sister's need for medical attention. He did
not volunteer information about the assailant but provided the description only in
response to the 911 operator's questions. The caller discussed no facts about
the assault and did not ask police to pursue or to prosecute the assailant.
Although, when viewed in isolation, the questions about the incident and the
assailant's identity appear as an attempt to elicit testimony, the sequence of
questions indicates that the 911 operator asked the questions to determine if
police would "be encountering a violent felon" when responding and how they
might resolve the situation.20
Fourth, interactions with 911 operators are typically informal.21 The
caller's statements, some of which appear emphatic, show concern about getting
medical help for his sister. He made these statements from the location where
the assault took place, which was not secure. Given these facts, the caller's
statements share nothing with the formality that customarily attends testimony.
20 See Davis, 547 U.S. at 827.
21 Davis, 547 U.S. at 827 (contrasting the solemnity of a formal police
interrogation with a 911 call).
-8-
NO. 69918-1-1/9
The caller's statements in the 911 call were not testimonial because,
viewed objectively, the circumstances show a call for emergency assistance
rather than a mere report of a crime. We conclude that the trial court did not
violate Fentahun's right to confrontation by admitting the 911 call.
Fentahun also claims that admitting Amanuel's statements to Drummond
violated his right of confrontation because Amanuel did not make these
statements for the purpose of his own medical diagnosis or treatment or for the
purpose of diagnosing or treating Wosenyelesh. Fentahun argues, "A
reasonable person in Amanuel's position would anticipate that telling a hospital
social worker that his brother assaulted his sister, that he tried to stop the
assault, and that he called police, that his statement would be used to either
investigate or prosecute the alleged assault."
Drummond conducted her interview and wrote her notes on the day of the
assault, shortly after Amanuel and Wosenyelesh arrived in the emergency room.
At trial, she testified that in her role as an emergency room social worker she
provides crisis intervention for families and becomes their advocate with the
medical staff. Because this case involved domestic violence and "it appeared
that there were witnesses to what had happened," she understood that her job
was to "make sure that not only [Wosenyelesh] got the appropriate support and
more long term counseling related to that, but that there would be services for the
family as well."
-9-
NO. 69918-1-1/10
Drummond interviewed Amanuel to be able to provide appropriate
treatment to Wosenyelesh and other members of their family. No evidence
shows that Drummond had a role in investigating the assault, that she shared her
notes with police when they arrived, or that she prepared the notes in the form of
an extrajudicial sworn or certified statement to be used as a substitute for
testimony in court. Nothing in the record indicates that police were present when
Drummond spoke with Amanuel or that Drummond was working on behalf of or
in conjunction with the police or governmental officials to develop testimony for
the prosecution. And no evidence shows that Amanuel believed or had reason to
believe that his statements to Drummond would be used at a subsequent trial to
establish Fentahun's culpability. Drummond also testified that the fact the
incident involved domestic violence affected diagnosis and treatment.22
Therefore, these statements were not testimonial, and their admission did not
violate Fentahun's confrontation clause rights.
Fentahun also claims that Amanuel's statements to Drummond were not
admissible under ER 803(a)(4) because Amanuel "was not the patient making a
statement for the purpose of his medical diagnosis or treatment, and
[Wosenyelesh] was able to communicate her own medical concerns." He also
alleges that "the State failed to show [Wosenyelesh] incapable of expressing her
concerns to Drummond."
22 See Sandoval, 137 Wash. App. at 538.
-10-
NO. 69918-1-1/11
ER 803(a)(4) states that a statement is not hearsay if it is "made for
purposes of medical diagnosis or treatment and describing medical history, or
past or present symptoms, pain, or sensations, or the inception or general
character of the cause or external source thereof insofar as reasonably pertinent
to diagnosis or treatment." A party seeking to admit a statement under ER
803(a)(4) must show that the declarant's apparent motive was consistent with
receiving treatment and that the medical provider reasonably relied upon the
information for diagnosis or treatment.23 A statement attributing fault to an
abuser made in a domestic violence case is relevant to diagnosis and treatment
because the abuser's identity may affect the witness's treatment.24 An out-of-
court statement made to a social worker is admissible if made in the course of
diagnosis and treatment.25
Fentahun cites no authority holding that ER 803(a)(4) applies only to
statements describing the patient's own symptoms or medical history. In State v.
Justiniano,26 the court admitted a parent's statements to a physician about a
child's needs, reasoning that "children of tender years are incapable of
expressing their medical concerns to physicians." In State v. Woods,27 the court
admitted under ER 803(a)(4) an assault victim's statements to a physician and a
23 State v. Doerflinger, 170 Wash. App. 650, 664, 285 P.3d 217 (2012)
(quoting In re Pers. Restraint of Grasso, 151 Wash. 2d 1, 20, 84 P.3d 859 (2004)),
review denied, 177 Wash. 2d 1009 (2013).
24 Sandoval, 137 Wash. App. at 537 (citing Moses, 129 Wash. App. at 729).
25 Moses, 129 Wash. App. at 731 (citing State v. Sims, 77 Wash. App. 236,
239-40, 890 P.2d 521 (1995)).
26 48 Wash. App. 572, 581, 740 P.2d 872 (1987).
27 143 Wash. 2d 561, 601, 23 P.3d 1046 (2001).
-11-
NO. 69918-1-1/12
nurse's description of assaults upon herself and the patient. In Woods, the court
explained that it was reasonably pertinent to the patient's treatment "that her
medical providers be apprised of the physical position [the patient] was in at the
time when her attack occurred."28
Drummond testified that she was unable to communicate effectively with
Wosenyelesh because of the injuries to Wosenyelesh's mouth. At trial,
Drummond testified, "I attempted to interview [Wosenyelesh], and in my note I
state that her voice was soft and meek when she speaks, and she's unable to
say more than two words because her teeth are so loose in her mouth."
Drummond also stated, "She was alert, conscious, she was not sedated. She
was—she had tried to engage with me in conversation and was unable to based
upon her mouth injury." When asked how she communicated with Wosenyelesh,
Drummond testified,
So she had a brother—well, she had other family members there
with her too. My very first interaction with her was to actually bring
back, ... I believe it was another brother and her parents and
brought them back. But the brother who was at bedside then was
Amanuel who had witnessed and intervened in the assault.
Drummond stated that during the conversation with Amanuel, she did not recall
anyone else being present in the room besides Wosenyelesh.
Amanuel had firsthand knowledge about the incident that took place and
about the cause of Wosenyelesh's injuries. It was also pertinent to
Wosenyelesh's treatment that the incident was one involving domestic violence
28 Woods, 143 Wash. 2d at 603.
-12-
NO. 69918-1-1/13
because of the need to prevent a recurrence.29 Fentahun cites no evidence
demonstrating that Amanuel's motive in providing these statements to
Drummond was to investigate or to prosecute him. Because the record shows
that Amanuel's motive appeared consistent with seeking proper medical
treatment for Wosenyelesh, the trial court did not abuse its discretion when
admitting this evidence.
CONCLUSION
Because Amanuel's statements in the 911 call and to Drummond were not
testimonial and were made for the purpose of providing medical treatment to
Wosenyelesh, we affirm.
WE CONCUR:
T?^m, ^ CZTX^
29 State v. Ackerman, 90 Wash. App. 477, 482, 953 P.2d 816 (1998) (quoting
State v. Butler, 53 Wash. App. 214, 221, 766 P.2d 505 (1989)).
-13-