State Of Washington v. Brandon Douglas Roberts ( 2013 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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Grosse, J. — Under ER 803(a)(4), a statement made for the purpose of
medical diagnosis or treatment is admissible as an exception to the hearsay rule.
Here, the defendant's statements made to a nurse, physician, and social worker
were all made for the purpose of medical diagnosis and were therefore properly
admitted.
FACTS
Investigating a possible hit and run accident, police arrived at the home of
Brandon Roberts' parents, Steven and Kristie Hanson. Steven had telephoned
the police that he thought his son was involved in an accident. When the police
arrived, Roberts fled. While the officers were searching for Roberts, Kristie
showed police red marks and bruising on the neck of Melissa Cole, Roberts'
girlfriend. The police spoke with Cole and then arrested Roberts for felony
assault.
Cole was treated by paramedics at the scene. Kristie testified that she
encouraged Cole to go to the hospital because both the police and paramedics
said she should go. At the hospital Cole was evaluated by nurse Kerry Groves.
In response to Groves' questions, Cole stated that she had been choked by her
No. 67414-5-1/2
boyfriend. She complained of pain in the right side of her neck and in her cheek.
Cole was then seen by Dr. Neil Donner, who also testified that Cole stated she
had been choked and struck in the face by her boyfriend. Cole was next seen by
a social worker who also testified that Cole stated she was choked by her
boyfriend after they had an argument.
Roberts did not testify. Roberts' telephone calls made from jail were
admitted. One of those calls was to Cole after he was charged with second
degree assault. On the recording, Roberts asks, "[Wjhat's going on?" Cole
responded, "[Y]ou choked me, you choked me really hard." Roberts then stated,
"[D]on't say that on the phone." Cole did not testify at trial.
The jury found Roberts guilty of second degree assault. The court
sentenced him to a standard range sentence of six months confinement.
Roberts appeals. He contends that the court erred in admitting Cole's
prior statements to an emergency room nurse, a physician, and a social worker
on the grounds that the statements were made for the primary purpose of
medical diagnosis or treatment. Roberts contends Cole's statements were not
for medical diagnosis because they were made seven or more hours after the
incident and treatment by paramedics at the scene, and only after Cole had
signed a release of medical records form given to her by the police.
ANALYSIS
Under the Sixth Amendment, a defendant is guaranteed the right to
confront witnesses against him.1 Admission of testimonial hearsay violates a
1 U.S. Const, amend. VI.
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defendant's Sixth Amendment right of confrontation unless the witness is
unavailable and there was a prior opportunity to cross-examine with regard to the
statement.2 It is essential to determine whether the statement is testimonial or
nontestimonial to determine whether it is subject to the limitations of the
confrontation clause. The United States Supreme Court did not provide an
authoritative definition of "testimonial" in Crawford v. Washington;3 however, in
Davis v. Washington, the Supreme Court did distinguish hearsay elicited in the
context of a police interrogation from that arising in other settings.4 The Davis
Court held that a domestic abuse victim's statement identifying her assailant to a
911 operator in response to that operator's questions was not testimonial, where
the assailant was allegedly in the victim's home in violation of a no-contact order.
Davis characterized the statement as nontestimonial because the questioning
was done to enable police response to an ongoing emergency. The court held
that when the police are responsible for procuring a statement, confrontation
clause analysis requires the examination of the "primary purpose" of the
interrogation. Under this analysis, a statement will be considered to be
"testimonial" if the police questioned the declarant in order to obtain evidence for
the prosecution, as opposed to the need to meet an ongoing emergency.
In State v. O'Cain, we noted that the United States Supreme Court has
recently portrayed statements to medical personnel for purposes of diagnosis or
2 Crawford v. Washington. 541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 L. Ed. 2d
177(2004).
3 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
4 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).
No. 67414-5-1/4
treatment as nontestimonial.5 Under ER 803(a)(4), a statement made for the
purpose of medical diagnosis or treatment is admissible as an exception to the
hearsay rule. Roberts contends that statements Cole made to a nurse, an
emergency physician, and a social worker were inadmissible hearsay statements
because there was no foundation establishing that the statements were
necessary for medical diagnosis or treatment, but rather done in furtherance of a
police prosecution.
Washington courts recognize that in cases of child abuse and domestic
violence, attributing fault to a particular abuser is relevant to medical diagnosis
and treatment.6 In Sims, the court held that an assault victim's statements to a
social worker that the defendant was the person who assaulted her were
reasonably pertinent to her treatment, where the social worker testified that the
medical center had a policy of referring domestic violence victims to the social
work department and the social worker discussed a treatment plan with her that
included how to avoid threatening situations.7
5169 Wn. App. 228, 279 P.3d 926 (2012); see Michigan v. Bryant. _U.S. _ 131
S. Ct. 1143, 1157 n.9, 179 L. Ed. 2d 93 (2011) (listing "Statements for Purposes
of Medical Diagnosis or Treatment" under federal rule of Evidence 803(4) as an
example of statements that are, "by their nature, made for a purpose other than
use in a prosecution") and Melendez-Diaz v. Massachusetts. 557 U.S. 305, 129
S. Ct. 2527, 2533 n.2, 174 L. Ed. 2d 314 (2009) (discussing cited cases: "Others
are simply irrelevant, since they involved medical reports created for treatment
purposes, which would not be testimonial under our decision today.).
* See State v. Sims. 77 Wn. App. 236, 239-40, 890 P.2d 521 (1995); State v.
Butler. 53 Wn. App. 214, 766 P.2d 505 (1989).
777 Wn. App. 236, 240, 890 P.2d 521 (1995).
No. 67414-5-1/5
Washington courts have also held that statements made to medical
personnel by victims of domestic violence are not testimonial.8 In State v.
Sandoval, the court held that the identification of the perpetrator in domestic
violence cases is admissible since that person's identity may affect the treatment
for the victim-witness.9 In Sandoval, the court held that statements to a medical
doctor were not testimonial if (1) they were made for purposes of diagnosis and
treatment, (2) there is no indication that the witness expected the statements to
be used at a trial, and (3) the medical caregiver is not employed by or working
with the prosecution.10 And in State v. Moses, the trial court admitted the
physician's and the social worker's testimony regarding the victim's
declarations.11 The physician testified that the medical examination took place
within hours of the assault and the physician asked questions to provide
treatment.12 In determining whether statements made to health care providers
are testimonial, the focus of the inquiry is on the purpose of the declarant's
encounter with the health care provider.13 In Moses, where the doctor had no
role in investigating the assault and was not working on behalf of or in
conjunction with the police or other governmental officials to develop testimony
for the prosecution, the circumstances indicated that the victim's statements were
made for the purpose of obtaining medical treatment for the victim. Here, Cole,
as the declarant, was seeking medical treatment. Roberts' mother testified that
8State v. Moses. 129 Wn. App. 718, 728-30, 119 P.3d 906 (2005).
9 137 Wn. App. 532, 537, 154 P.3d 271 (2007).
10 Sandoval. 137 Wn. App. at 537.
11 129 Wn. App. 718, 730-32, 119 P.3d 906 (2005).
12 Moses. 129 Wn. App. at 730.
13 Moses, 129 Wn. App. at 730.
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she encouraged Cole to seek additional medical treatment, as did the police and
the paramedics who treated Cole at the scene.
The nurse, Kerry Groves, testified about statements Cole made to her
upon her arrival at the emergency room. Groves further testified that she worked
in the emergency room triaging patients and that her job was to obtain a full
history from a patient about what occurred. She also explained that she uses
this information to assess patients and work with doctors and social workers to
come up with a treatment plan for the patient. Groves then testified about her
specific interaction with Cole and stated that she observed visible injuries to
Cole's neck and face and that Cole said she received the injuries when her
boyfriend choked her with his hands. Clearly, the statements to the nurse were
made for the purpose of medical diagnosis and, as in Sims, would allow hospital
providers to assess the types of treatment plans or resources that would be
appropriate for the patient. The nurse's statements were properly admitted.
Cole's statements to the treating physician, Dr. Neil Donner, likewise fall
within the parameters of the medical diagnosis hearsay exception. Dr. Donner
testified that he asked Cole what had happened and she responded that she had
been assaulted, choked by her boyfriend with his hands. Dr. Donner
remembered asking if she was put into a choke hold or was strangled with
hands. He also testified that Cole exhibited external signs of trauma on the front
of her neck, although that in itself was insufficient to substantiate that it occurred
through strangulation. Cole also complained of pain on the left side of her face
where she was struck by her boyfriend. Cole was referred to a social worker for
No. 67414-5-1/7
a consultation. Dr. Donner's job was to address any medical concerns and the
referral to the social worker was to address all the other facets, including the
emotional aspects of the alleged assault and the patient's future safety. Thus,
the doctor's testimony was clearly admissible.
Finally, the social worker, Nathan Nelson, testified that he worked with the
doctors and nurses on cases involving social issues such as domestic violence.
Nelson testified that medical personnel referred patients to him for safety and any
follow-up care that might be needed. Cole told Nelson that she had been
assaulted by her boyfriend. In response to what Nelson's ultimate goal was, he
responded:
Basically, I want to - I'm getting a report from her so if the police
need that report for later purposes, and also to contact police if they
haven't been contacted.
But Nelson also testified that he was concerned about Cole's future safety and
whether she had a safe place to be. As in Sims, the statements here were made
to medical personnel who testified that the triage protocol included obtaining
information that would allow hospital providers to assess what types of treatment
plans or resources would be appropriate for the patient. The statements made to
Nelson were for Cole's medical diagnosis and treatment and were properly
admitted.14
Roberts also argues that the medical release form signed by Cole
changed the purpose of her statements from seeking medical treatment to aiding
14 Even if we were to find Nelson's testimony suspect because of his reference to
compiling a possible report for the police, any error in its admission was
harmless. See State v. Nist. 77 Wn.2d 227, 235, 461 P.3d 322 (1969) (Evidence
that is merely cumulative of convincing untainted evidence is harmless.).
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the prosecution. Other than this form, which is not in the record, there is nothing
to indicate that Cole went to the hospital to offer evidence for the purpose of
prosecuting Roberts. The nurse, doctor, and social worker all testified that their
concern was the treatment and safety of Cole. The doctor's testimony that he
inquired into the type of strangulation that occurred was clearly for medical
diagnosis. There is no evidence that Cole thought her statements would be used
to initiate a criminal prosecution. The signing of the medical release form is not
sufficient to overcome this, especially here, where the form was not admitted as
an exhibit at trial and, when viewed by the trial court during argument objecting to
the testimony, was characterized by the court as a typical form used in all cases
involving crime victims.
Affirmed.
WE CONCUR:
A.J fJ tr.ckvr
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