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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| TRAVIS D. CLARK, | ) |
| ) Court of Appeals No. A-8890 | |
| Appellant, | ) Trial Court No. 3PA-04-208 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2205 January 16, 2009 |
| ) | |
Appeal from the District Court, Third Judi
cial District, Palmer, Gregory Heath, Judge.
Appearances: Craig Condie, Assistant Public
Defender, Palmer, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Talis J. Colberg,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
COATS, Chief Judge, dissenting.
Travis D. Clark appeals his conviction for assaulting
his girlfriend, Loretta B. Amouak. Although our prior decision
in this case, Clark v. State, Alaska App. Memorandum Opinion No.
5112 (September 6, 2006), 2006 WL 2578642, contains a detailed
description of the underlying facts, the pertinent facts can be
described in a few paragraphs:
Amouak, who had been drinking, and whose drivers
license apparently was revoked, borrowed Clarks truck and drove
it into a ditch. Clark and a friend of Amouaks, Kimberly Yadon,
went out to pick up Amouak, and Yadon brought her back home.
Several hours later, Amouak called Yadon, and Yadon brought her
to the hospital with a fractured nose, a black eye, and bruises
on her neck, arms, and legs.1
Amouak told the emergency room personnel that she
sustained these injuries when her boyfriend (i.e., Clark)
assaulted her. At trial, Clark claimed self-defense: he
asserted that Amouak had attacked him, and that he had acted to
protect himself.2 Thus, as we noted in our prior decision, [t]he
main question before the jury was ... not whether Clark had
caused Amouaks injuries[,] but whether ... her injuries resulted
from an assault. Clark, Memorandum Opinion No. 5112 at 13, 2006
WL 2578642 at *7.
Although Amouak was scheduled to be a witness at Clarks
trial, she ultimately claimed the Fifth Amendment and declined to
testify. To prove how Amouak sustained her injuries, the State
relied on hospital records which described the statements that
Amouak made to the emergency room personnel in particular, her
assertions that she sustained her injuries as the result of an
assault by her boyfriend.3
The question presented on appeal is whether the trial
judge properly allowed the State to introduce this hearsay
evidence (i.e., the hospital records describing Amouaks
statements to the emergency room personnel) or whether, as Clark
contends, this evidence should have been excluded as testimonial
hearsay under the confrontation clause of the Sixth Amendment as
construed in Crawford v. Washington4 and Davis v. Washington.5
The admissibility of the hospital records under Alaska
Evidence Rule 803(4), the hearsay exception for
statements made for purposes of medical diagnosis or
treatment
Before we turn to the confrontation clause
issue, we should briefly recapitulate the conclusion we
reached in our previous decision in Clarks case
concerning the admissibility of the hospital records
under the hearsay rules.
Amouaks statements to the emergency room
personnel were hearsay, in that they were introduced at
Clarks trial for the truth of the matters asserted in
the statements. However, for the most part, those
statements were admissible under the hearsay exception
codified in Alaska Evidence Rule 803(4) the exception
for statements made for the purpose of medical
diagnosis or treatment.
Under Rule 803(4), the State could introduce
evidence that Amouak told the emergency room personnel
that she sustained her injuries as a result of being
struck by another person (as opposed to being injured
in a car accident, or in a fall, or by some other
cause), as well as evidence of Amouaks statements
describing such things as the number of blows, the
manner in which they were inflicted, and the amount of
force behind these blows for all of this would be
relevant to medical diagnosis and treatment.
However, the medical diagnosis and treatment
hearsay exception does not normally encompass a
patients identification of the person who hurt them or
a patients attributions of fault.6 Because of this
limitation, Clark had a valid hearsay objection to the
hospital records to the extent that they reported that
Amouak identified Clark as the one who struck her, or
to the extent that Amouak might have asserted that
Clark had no justifiable reason to do so.
But as we explained in our prior decision,
Clark made no hearsay objection when the State offered
the hospital records.7 Several days later, Amouak
invoked her privilege against self-incrimination (after
testimony at the trial indicated that Amouak had been
driving while intoxicated, and driving with a revoked
license, when she borrowed Clarks truck).8 Only then,
after Amouak invoked her Fifth Amendment privilege and
refused to testify, did Clarks attorney belatedly raise
a hearsay objection to the hospital records.9 The
trial judge ruled that Clarks objection was untimely.10
In our earlier decision in Clarks appeal, we
upheld the trial judges ruling that Clarks hearsay
objection was untimely. Clarks primary argument in
favor of allowing him to make a tardy objection was
that he purportedly had no reason to object to the
hearsay in the hospital records until it became clear
that Amouak was unavailable as a witness. But we noted
that Amouaks availability as a witness did not affect
the admissibility of the hospital records because the
medical diagnosis and treatment hearsay exception does
not hinge on whether the declarant is available to
testify.11 We further explained that, under Alaska
law, it is proper [for] a trial court ... to receive
hearsay when no objection has been made.12 For these
reasons, we concluded that Clarks trial judge did not
err by admitting the hearsay testimony that Clark now
challenges or by denying Clarks belated motion to
strike Amouaks statements on hearsay grounds.13
Given our ruling on this hearsay question in
our prior decision, the only issue before us now is
Clarks claim that, even though Amouaks out-of-court
statements may have been properly admitted under the
law governing hearsay evidence, those statements
nevertheless should have been excluded under the
confrontation clause of the Sixth Amendment.
The district courts findings on remand
In our earlier decision in Clarks case, we
concluded that we could not resolve the confrontation
clause issue without additional information regarding
the circumstances surrounding Amouaks statements at the
emergency room. We therefore directed the district
court to hold an evidentiary hearing to inquire into
the nature and purpose of Amouaks statements to the
emergency room personnel.
At the evidentiary hearing, Amouak testified
that her purpose in telling the doctor what happened
(i.e., how she came to be injured) was to obtain
medical treatment because she was concerned about the
injuries to her face. Amouak said that she heard
something break in her face, and she was worried that
her face would be deformed.
As to the emergency room doctor and nurse who
interviewed Amouak, the district court concluded that
they questioned Amouak about her injuries, and recorded
Amouaks answers, purely for medical purposes.
Clarks attack on the district courts findings on remand
In the present appeal, Clark argues that he
was denied due process of law at the evidentiary
hearing on remand. Clark argues that the district
court committed error by relying on Amouaks testimony
at that hearing after Amouak invoked the Fifth
Amendment rather than answer certain questions that
Clarks attorney posed to her during cross-examination.
The questions that Clarks attorney wanted to
ask Amouak dealt with the facts (1) that Amouak had
apparently been driving while intoxicated, and driving
with a revoked license, when she borrowed Clarks truck
on the night of the incident, and (2) that when Amouak
summoned her friend, Kimberly Yadon, to transport her
to the hospital, they agreed that they would lie to the
authorities about Amouaks driving. Amouak invoked her
Fifth Amendment privilege rather than answer these
questions concerning what happened earlier on the
evening of the assault (before she reached the
hospital).
Clark now argues that, because Amouak invoked
her Fifth Amendment privilege and refused to answer
questions about these matters when she testified at the
evidentiary hearing on remand, the district court
should have struck Amouaks evidentiary hearing
testimony in its entirety. We disagree. It is true
that when a witness invokes an evidentiary privilege
and refuses to answer questions pertaining to their
potential bias or motive to fabricate, a court may be
required to strike the witnesss testimony in its
entirety. But if the specific subject matter [of] the
question as to which the privilege is invoked is
cumulative or remote, or if the defendant is
[otherwise] afforded an adequate independent means to
establish the witness[s] bias, the court can allow the
witnesss testimony to be considered by the finder of
fact. Jackson v. State, 695 P.2d 227, 230 (Alaska
App. 1985).
Here, the finder of fact was the district
court itself, and the court was well aware of the
factual basis for the defense attorneys questions. At
Clarks trial, Kimberly Yadon testified that, on the
night of the incident, Amouak was drinking and had
driven Clarks truck into a ditch. Yadon further
testified that, at Amouaks request, she agreed to lie
about whether Amouak had been driving that evening so
that Amouak could escape any charges connected to her
driving of the truck.
At the evidentiary hearing on remand, Clarks
attorney relied on these facts to argue that Amouaks
testimony at that evidentiary hearing should not be
believed. When the prosecutor questioned whether
Clarks attorney could rely on testimony given at trial
to attack Amouaks testimony at the evidentiary hearing
on remand, the district court declared that this was
proper, and that the court would take judicial notice
of the testimony already given at Clarks trial. Thus,
even though Amouak refused to answer questions on these
matters, Clarks attorney was able to argue his point.
Accordingly, we hold that the district court
could properly consider and rely on Amouaks testimony
at the evidentiary hearing despite Amouaks refusal to
answer the defense attorneys questions on these
matters.
Did the admission of the hearsay in the hospital
records violate Clarks Sixth Amendment right to
confrontation?
The remaining question is whether the
confrontation clause of the Sixth Amendment precluded
the State from introducing the hospital records at
Clarks trial when those records contained hearsay
evidence of Amouaks statements describing the assault.
In Crawford v. Washington, 541 U.S. 36, 124
S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court
held that, even when hearsay evidence is admissible
under the rules of evidence governing hearsay, the
confrontation clause of the Sixth Amendment prohibits
the government from introducing evidence of testimonial
hearsay statements at a criminal trial unless the
declarant (i.e., the person who made the out-of-court
statements) testifies at the trial, or unless the
government shows that the declarant is unavailable to
testify and that the defendant had a prior opportunity
to cross-examine the declarant about those
statements.14
Although Crawford declares that a statement
is clearly testimonial if it is [a] solemn declaration
or affirmation made for the purpose of establishing or
proving some fact,15 the Supreme Court did not adopt a
precise definition of testimonial hearsay, nor did the
Court attempt to outline the full scope of this term.
Numerous courts have considered the question
of whether, or when, statements made to health care
providers are testimonial for purposes of the Sixth
Amendment. We believe that the most persuasive court
decisions on this question are the ones issued after
the Supreme Courts decision in Davis v. Washington, 547
U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).
The issue presented in Davis was whether the
hearsay account of a crime victims statements to a 911
operator, describing an ongoing crime and identifying
the perpetrator, should be deemed testimonial hearsay.
The Supreme Court assumed, without deciding, that the
911 operators were police agents.16 Nevertheless, the
Court held that the victims responses to the 911
operators questions were not testimonial:
Statements are nontestimonial, [even]
when made in the course of police
interrogation[, if the statements are made]
under circumstances objectively indicating
that the primary purpose of the interrogation
is to enable police assistance to meet an
ongoing emergency. [On the other hand,
statements made in answer to police
interrogation] are testimonial when the
circumstances objectively indicate that there
is no such ongoing emergency, and that the
primary purpose of the interrogation is to
establish or prove past events potentially
relevant to later criminal prosecution.
Davis, 547 U.S. at 822, 126 S.Ct. at 2273-74.
The Court declared that its
assessment in Davis was premised on the
following aspects of the situation: (1) the
victim was describing events as they were
happening, not describing past events;17 (2)
the nature of the operators questions and the
victims answers, viewed objectively, showed
that the elicited statements were necessary
to be able to resolve the present emergency,
rather than simply to learn ... what had
happened in the past;18 and (3) the victims
statements were not elicited in a formal
interview; rather, they were excited
statements elicited over the telephone in an
environment that was not tranquil, or even
(as far as any reasonable 911 operator could
make out) safe.19 The importance of these
circumstances, the Supreme Court explained,
was that they objectively indicate[d that
the] primary purpose [of the interrogation]
was to enable police assistance to meet an
ongoing emergency. [The victim] simply was
not acting as a witness; she was not
testifying. What she said was not a weaker
substitute for live testimony at trial[.]20
Both Crawford and Davis dealt with
police interrogations. (As we explained
earlier, the Court decided Davis under the
assumption that the 911 operators were agents
of the police.) Thus, neither Crawford nor
Davis directly addresses the issue before
this Court: whether statements to health
care providers are, or can be, testimonial.
Indeed, in Davis, the Supreme Court expressly
declined to address the question of whether
and when statements made to someone other
than law enforcement personnel are
testimonial. 21 Nevertheless, after the
Supreme Court issued its decision in
Crawford, several courts have had to
determine whether statements to a health care
provider were testimonial for Sixth Amendment
purposes.
Before Davis was decided, these
courts often applied the objective witness
formulation found in Crawford. That is,
these courts tried to assess whether the
statement was made under circumstances which
would lead an objective witness an
objectively reasonable person in the
declarants position22 to reasonably believe
that the statement would be available for use
at a later criminal trial.23
Although this method of analysis
may be useful in many situations, it can also
lead to results that are inconsistent with
Davis. The facts and the holding of Davis
illustrate this point. It may be reasonable
for a person to assume that, if they report a
crime to 911 operators, their statements will
be recorded and available for use in a future
criminal prosecution. Nevertheless, the
Court in Davis held that the crime victims
statements to the 911 operator were not
testimonial largely because of the
circumstances in which they were given (an
ongoing emergency), and the purpose for which
they were given (to obtain police assistance
to meet that emergency).
Indeed, a few pre-Davis decisions
declined to follow the objective witness
formulation of the test for testimonial
hearsay articulated in Crawford. Instead,
these courts anticipating the Supreme Courts
approach in Davis focused on the question of
whether the primary purpose of the interview
was medical diagnosis and treatment (in which
case the statement was not testimonial) or
investigating a crime and developing
testimony for trial (in which case the
statement was testimonial).
For instance, in State v. Vaught,
682 N.W.2d 284 (Neb. 2004), the Nebraska
Supreme Court concluded, based on the
following facts, that a statement made by a
four-year-old sexual abuse victim to a doctor
was not testimonial, even though the victims
statement identified her abuser:
[T]he victims identification of Vaught
as the perpetrator was a statement made for
the purpose of medical diagnosis or
treatment. In the present case, the victim
was taken to the hospital by her family to be
examined[,] and the only evidence regarding
the purpose of the medical examination,
including the information regarding the cause
of the symptoms, was to obtain medical
treatment. There was no indication of a
purpose to develop testimony for trial, nor
was there an indication of government
involvement in the initiation or course of
the examination.
Vaught, 682 N.W.2d at 291-92 (citations
omitted).24
Some courts have attempted to meld
the confrontation clause analysis with the
hearsay analysis by dividing the victims
statement into two parts: the victims
assertions concerning when and how the
criminal conduct occurred (the statements
that would be admissible under the hearsay
exception for medical diagnosis and
treatment) are deemed non-testimonial (i.e.,
admissible at trial even if the victim is not
available to testify), while the victims
assertions concerning the identity of the
perpetrator are deemed testimonial unless the
government establishes that the identity of
the perpetrator was information reasonably
relied on by the physician as pertinent to
the diagnosis or treatment of the victim.
See, for instance, United States v.
Cree, 400 F.Supp.2d 1192, 1197 (D. N.D.
2005), and In re T.T., 815 N.E.2d 789, 803-05
(Ill. App. 2004). The court in In re T.T.
concluded that a seven-year-old victims
statement to a doctor identifying her
assailant was testimonial, but that her
statements describing the cause of her
symptoms and pain, and the general character
of the assault, were not testimonial. (We
note that the decision in In re T.T. was
later vacated by the Illinois Supreme Court:
In re T.T., 866 N.E.2d 1174 (Ill. 2007).)
This approach may seem attractive
at first glance, because it simplifies a
judges task. Under this approach, in most
instances, the judge would simply ascertain
whether the challenged evidence was
admissible under the hearsay rules governing
statements made for the purpose of medical
diagnosis or treatment, and then the
confrontation issue would be resolved too.
But Crawford and Davis are premised
on the idea that a defendants right of
confrontation is distinct from the policies
that underlie the hearsay rules. As the
Supreme Court explained in Crawford,
[T]he principal evil at which the
Confrontation Clause was directed was the
civil-law mode of criminal procedure, and
particularly [the] use of ex parte
examinations [of witnesses] as evidence
against the accused. ... The Sixth
Amendment must be interpreted with this focus
in mind.
. . .
This focus ... suggests that not all
hearsay implicates the Sixth Amendments core
concerns. An off-hand, overheard remark
might be unreliable evidence[,] and thus a
good candidate for exclusion under [the]
hearsay rules, but [the admission of such
evidence] bears little resemblance to the
civil-law abuses the Confrontation Clause
targeted. On the other hand, [statements
made during] ex parte examinations might
sometimes be admissible under modern hearsay
rules, but the Framers certainly would not
have condoned them.
Crawford, 541 U.S. at 50-51, 124 S.Ct. at
1363-64.
As the results in Crawford and
Davis illustrate, hearsay evidence may
violate a defendants right of confrontation
even though that evidence might be admissible
under the hearsay rules. Thus, the fact that
hearsay might be admissible under the medical
diagnosis and treatment exception does not,
per se, guarantee that the hearsay is non-
testimonial for Sixth Amendment purposes. On
the other hand, as the last-quoted excerpt
from Crawford points out, the fact that
hearsay would not be admissible under the
hearsay rules does not, per se, mean that the
admission of this testimony violates the
Sixth Amendment.
In sum, there is no easy
correlation between (1) admissibility of
hearsay under the confrontation clause and
(2) admissibility of hearsay under the
exception for statements made for the purpose
of medical diagnosis or treatment. In
particular, given the Supreme Courts analysis
in Crawford and Davis, a court can not simply
adopt the rule that statements for medical
purposes are non-testimonial if the
declarants assertions are confined to a
description of the crime, and testimonial if
the declarant makes an assertion about the
identity of the perpetrator.
We believe that the California
Supreme Courts decision in People v. Cage,
155 P.3d 205 (Cal. 2007), cert. denied 128
S.Ct. 612, 169 L.Ed.2d 395 (2007), more
accurately describes the Sixth Amendment
analysis that applies to Clarks case.
The defendant in Cage was accused
of using a shard of glass to slash her
teenage sons face. Following the attack, the
victim was taken by ambulance to a hospital
for treatment.25 While the victim was in the
hospital waiting to be seen by emergency room
doctors, he was interviewed by a police
officer, and he described the attack to the
officer.26 A little later, the victim was
evaluated by emergency room physicians and
then he was taken to a surgeon specializing
in head and neck injuries.27 The surgeon
asked him, What happened? In response to the
surgeons question, the victim again described
how his mother had cut him with a piece of
glass.28
The victim did not testify at Cages
trial.29 However, through hearsay testimony,
the government introduced the victims
statements to the police officer and the
surgeon. The trial judge ruled before trial
that this hearsay was admissible under
California evidence law.30
Cage was convicted, and she
appealed. While her appeal was pending,
first Crawford and then Davis were decided.31
Based on the United States Supreme Courts
decision in Davis, the California Supreme
Court concluded that (1) the victims
statements to the police officer constituted
testimonial hearsay, and the introduction of
these statements at Cages trial violated her
right of confrontation, but (2) the victims
similar statements to the surgeon were not
testimonial hearsay, and thus the government
could validly introduce that evidence against
Cage even though the victim did not testify
at Cages trial.32
The California court declared that,
under the principles announced in Davis, it
was manifest that the victims answers to the
police officers questions in the hospital
waiting room were testimonial hearsay.33
The court pointed out that the
officer had been dispatched to investigate
the domestic disturbance, and he found the
victim sitting on a curb with his face
slashed. When emergency medical personnel
transported the victim to the hospital, the
officer did not accompany them. Instead, he
came to the hospital later to interview the
victim.34 As the California court explained:
[B]y the time [the officer] spoke with
[the victim], the incident that caused [the
victims] injury had been over for more than
an hour. The alleged assailant and the
alleged victim were geographically separated,
[and the victim] had been taken to a remote
location to receive medical treatment. ...
[H]e was in no danger of further violence as
to which contemporaneous police intervention
might be required.
. . .
[The officers] clear purpose in coming
to speak with [the victim] was not to deal
with a present emergency, but to obtain a
fresh account of past events ... as part of
an inquiry into possible criminal activity.
Cage, 155 P.3d at 217-18 (emphasis in the
original).
But when the California court
applied a Davis analysis to the statements
that the victim gave to the surgeon, the
court concluded that these statements were
non-testimonial.35 Here is how the court
explained its decision:
[When the victims conversation with the
surgeon took place, the victim] needed
immediate acute treatment for a five- or six-
inch laceration on the side of his face and
neck. As [the surgeon] explained, his sole
object in asking [the victim] what happened
was to determine ... the exact nature of the
wound, and thus the correct mode of
treatment. The question was neutral in form,
and though [the victim] responded by
identifying [Cage] as his assailant, [the
surgeon] did not pursue that avenue further.
Objectively viewed, the primary purpose of
the [surgeons] question, and the [victims]
answer, was not to establish or prove past
facts for possible [prosecutorial] use, but
[rather] to help [the surgeon] deal with the
immediate medical situation[.] It was thus
akin to the 911 operators emergency
questioning of [the victim] in Davis.
Cage, 155 P.3d at 218.
The California court further noted
that there [was] no evidence that [the
surgeon] was acting in conjunction with law
enforcement, or that his question about the
cause of [the victims] injury had any
evidence-gathering aim. ... The question
and answer occurred in a private conversation
between a patient and his doctor, by which
both [the patient and the doctor] presumably
sought only to ensure [the patients] proper
treatment.36
Application of these principles to Clarks case
As explained above, the district court
concluded (based on the testimony presented at the
evidentiary hearing) that when Amouak was interviewed
by the nurse and the doctor at the hospital emergency
room, the primary purpose of the interview was to
secure proper medical diagnosis and treatment of
Amouaks injuries. The district courts conclusion is
supported by the record.
Nurse Matlock testified that it was her
responsibility to interview patients newly admitted to
the emergency room to determine the extent of their
injuries, the cause of their injuries, what level of
care was needed, and how quickly the patient needed to
see a doctor. Matlock performed this assessment of
Amouak, including a physical exam, and she recorded her
findings in a patient assessment report (which was
admitted at Clarks trial). In her report, Matlock
wrote: Assaulted by boyfriend tonight, hit to face,
abd[omen], legs, arms and eye. Has not called the
police. Further down, under the category DV Comment,
Matlock wrote: By boyfriend.
The emergency room physician, Doctor Leigh,
did not recall the details of his interview with
Amouak, but he confirmed what was written in his
medical report: that Amouak told him she had been
assaulted by her boyfriend, and that a friend found her
in a snow bank. The doctor testified that he elicited
this information for medical purposes.
In addition, as we have already explained,
Amouak testified that she came to the emergency room
because, during the assault, she heard something break
in her face, and she was worried that her face would be
deformed.
It is true that, even though the district
court expressly found that the nurses and doctors
primary purpose in interviewing Amouak was to ensure
proper medical diagnosis and treatment, the district
court made no express finding as to Amouaks primary
purpose in speaking to the nurse and doctor. But
Amouaks testimony that she sought medical treatment
because she feared that she might have a deforming
injury was the only testimony on this point. From the
wording of the district courts decision, we conclude
that the district court found Amouaks testimony
credible. We believe that the district court would not
have remained silent on this issue if the court had
found that Amouak had some purpose other than to secure
proper treatment for her injuries.
We acknowledge that, objectively speaking, a
person in Amouaks position might reasonably anticipate
that her statements to the emergency room personnel
could become available to the government and might
ultimately be used in a criminal prosecution. But this
circumstance, standing alone, does not make Amouaks
statements to the nurse and the doctor testimonial for
the same thing was true of the victims statements to
the 911 operator in Davis, and yet the Supreme Court
held that those statements were non-testimonial.
One could argue that Clarks case is different
from the facts of Davis, in that the assault committed
on Amouak was concluded by the time she came to the
emergency room, while the victim in Davis was reporting
ongoing criminal activity. But as the California
Supreme Court explained in Cage, when the issue is the
proper categorization of a patients statements to a
medical care provider, the case does not turn on
whether there was an ongoing risk of further injury at
the time of the patients statements, but rather whether
there was a current need for diagnosis and treatment.37
Clark suggests that, despite Amouaks
unrefuted testimony to the contrary, Amouaks primary
purpose in speaking to the emergency room personnel was
not to secure medical help. Clark points out that,
before Amouak arrived at the emergency room, she had
ample time to contemplate her situation and to perceive
that, if she told the full truth about her activities
that evening, she could be in trouble with the law.
Clark suggests that, because Amouak had this potential
motive to misrepresent the events of that evening, the
hearsay testimony concerning her statements to the
doctor and the nurse should be deemed testimonial
hearsay for purposes of Crawford. There are two
answers to this contention.
First, as we have already explained, Clarks
attorney made this argument to the district court, and
we interpret the district courts decision as at least
an implicit finding that Amouaks primary purpose was to
obtain medical care.
Second, the Supreme Courts decision in Davis
indicates that the decision as to whether hearsay is
testimonial is not controlled by the subjective motives
of the parties to the conversation. Davis implicitly
(if not directly) holds that the issue of primary
purpose is determined objectively, taking into
consideration all of the circumstances that might
reasonably bear on the intent of the participants to
the conversation.38
When we take into consideration all of the
pertinent circumstances here the underlying events of
the evening in question, plus the subsequent actions
and statements of Amouak, the nurse, and the doctor we
conclude that these circumstances objectively establish
that Amouak and the emergency room personnel shared the
primary purpose of obtaining / providing proper medical
care for Amouak.
Conclusion
For the reasons explained here, we conclude
that the statements attributed to Amouak in the
hospital records were not testimonial hearsay as
defined in Crawford and Davis. Therefore, even though
Amouak did not testify at Clarks trial, the governments
introduction of this hearsay at trial did not violate
Clarks right of confrontation under the Sixth
Amendment.
The judgement of the district court is
AFFIRMED.
COATS, Chief Judge, dissenting.
Travis Clark was convicted of assaulting his
girlfriend, Loretta Amouak. Amouaks statements to
hospital staff that her injuries resulted from an
assault by her boyfriend were a key part of the States
evidence against Clark.
According to Amouaks friend, Kimberly Yadon,
Amouak borrowed Clarks truck without his permission on
the night of the assault, after she had been drinking.
Amouak drove the truck into a ditch, miring it in deep
snow. Clark and Yadon picked Amouak up and drove her
to the house she and Clark shared. Yadon could see
that Clark was angry with Amouak, and she was concerned
about leaving Amouak alone with him. But Amouak was
also angry; after she called Yadon a slut, Yadon left.
Several hours later, Amouak telephoned Yadon.
Amouak was crying and hysterical, and she asked Yadon
to pick her up at a store near Amouaks and Clarks
residence. When Yadon arrived, she saw that Amouak had
a black eye, a bruised face, and a swollen nose. Yadon
drove Amouak to the hospital. Because Amouak had been
drinking and driving without a valid license, Yadon and
Amouak agreed not to tell anyone that Amouak had been
driving that night. Yadon then called the state
troopers to report the assault. According to Amouaks
medical records, Amouak told hospital staff that her
boyfriend had assaulted her and that a friend found her
in a snowbank after the assault.
During trial, the court admitted, without
objection, the medical records pertinent to this
incident. Those records documented Amouaks injuries
and her statements identifying her boyfriend as her
assailant.
Following Yadons testimony that Amouak had
been drinking and driving with a revoked license,
District Court Judge Gregory Heath appointed an
attorney to advise Amouak that she risked incriminating
herself if she testified. Following several days of
negotiation, the State refused to grant Amouak immunity
from prosecution, and Amouak asserted her Fifth
Amendment right not to incriminate herself.
At this point, realizing that Amouak was not
going to testify, Clark objected to Amouaks previously
admitted statements in her medical records that her
boyfriend had assaulted her. Clark objected that the
statements were inadmissible hearsay and that their
admission violated his Sixth Amendment right to
confront the witnesses against him. Judge Heath ruled
that Clark had waived these claims by not objecting
when the State first offered the medical records.
On appeal, this court concluded that because
Clark had not made a timely objection, he waived the
right to exclude the statements on hearsay grounds.
But we concluded that Clarks Confrontation Clause
objection was not untimely because, at the time the
court admitted Amouks medical records, Clark reasonably
believed Amouak would testify and that he would have
the opportunity to cross-examine her on her statements.
We therefore remanded the case and directed the trial
court to determine if Clarks confrontation right had
been violated.
On remand, following an evidentiary hearing,
Judge Heath found that the information contained in the
medical records was gathered solely for purposes of
emergency medical evaluation, diagnosis and treatment.
Judge Heath concluded that Amouaks statements were not
testimonial under Crawford v. Washington1 and Davis v.
Washington,2 and that their admission did not violate
the Confrontation Clause.
Under the Sixth Amendment, an accused in a
criminal case has a right to confront the witnesses
against him. In Crawford, the United States Supreme
Court construed this right as prohibiting the
government from introducing the testimonial statements
of a witness who does not testify at trial unless (1)
the government demonstrates that the witness is
unavailable to testify and (2) the defendant had a
previous opportunity to cross-examine the witness about
the hearsay statements.3 Non-testimonial statements do
not implicate the Confrontation Clause and are
admissible as long as they fall within a hearsay
exception.4
I agree with the majority that the Supreme
Courts decisions in the companion cases of Davis and
Hammon v. Indiana5 are the most pertinent cases in
assessing whether the statements in Amouaks medical
records identifying Clark as her assailant are
testimonial under Crawford. But I do not think those
cases provide a clear answer.
In Davis, Michelle McCottry called a 911
operator to report that she had just been assaulted by
her former boyfriend, Davis, who had fled the scene.6
Over Daviss Confrontation Clause objection, the trial
court admitted a recording of the 911 call at Daviss
trial, and Davis was convicted.7 The United States
Supreme Court held that admission of the 911 tape had
not violated Daviss right to confront the witnesses
against him.8 The Court noted that McCottrys
statements were made to obtain police assistance in an
ongoing emergency, not to recite to the police what had
happened in the past.9
The Court contrasted the facts in Davis with
the facts in Hammon. In Hammon, the police responded
to a domestic disturbance.10 Amy Hammon told the
police that her husband, Herschel Hammon, had assaulted
her.11 Amy Hammon did not testify at trial, and the
court admitted her statements to the police over
Herschel Hammons objection.12 The Supreme Court
reversed that decision, finding that Amy Hammons
statements were testimonial because they were obtained
not to address an ongoing emergency, but rather to
establish what had happened in the past for the primary
purpose of investigating a possible crime.13
The Davis and Hammon cases provide a clear
dividing line when a crime victim makes a statement to
the police. If the statement describes an ongoing
emergency that requires immediate police assistance,
the statement is generally not testimonial. If the
statement does not describe an ongoing emergency, it
generally is testimonial. But Davis and Hammon do not
provide clear guidance as to when admission of an out-
of-court statement that is not made to the police
violates the Confrontation Clause.
In the present case, Amouaks statements were
made to hospital staff, not to the police. If the
statements had been made to the police, they would be
testimonial, because at the time they were made there
was no emergency requiring immediate police assistance.
The question is whether the statements are not
testimonial because they were made to medical personnel
in the course of Amouak obtaining medical treatment.
Amouaks out-of-court statements identifying
Clark as her assailant would not normally be admissible
over a hearsay objection. In Johnson v. State,14 the
Alaska Supreme Court held as a matter of law that a
domestic violence victims statements to her doctor
identifying her assailant do not fall within the
hearsay exception for statements made for purposes of
medical diagnosis or treatment.15 The supreme court
explained that statements fixing fault and indicating
the identity of an assailant are not relevant to
medical diagnosis or treatment and therefore lack
assurances of reliability and should be excluded.16
Furthermore, under Ohio v. Roberts,17 the
governing law before Crawford, admission of Amouaks
statements identifying Clark as her assailant would
violate the Confrontation Clause. Under the Ohio v.
Roberts test, statements of a hearsay declarant who is
unavailable to testify at trial can be admitted only if
the statements bear adequate indicia of reliability.18
Reliability can be inferred if the evidence falls
within a firmly rooted hearsay exception or if there is
a showing that the statements have particularized
guarantees of trustworthiness.19 As discussed above,
Amouaks statements identifying Clark would not normally
be admissible under a hearsay exception. And there is
certainly no reason to find her statements reliable.
We know from Kimberly Yadons testimony that, because
Amouak had been drinking and driving without a valid
license, Amouak and Yadon agreed before they went to
the hospital to lie about the fact that Amouak had been
driving that night. So there was testimony to support
an inference that Amouak was not truthful about the
events of that evening.
It is not clear to me where the United States
Supreme Court is going with its Confrontation Clause
analysis. The Court overruled Ohio v. Roberts, which
had been the law since 1980, but has only begun to
develop the Confrontation Clause analysis it first
announced in Crawford. Therefore, I find myself in the
uncomfortable position of trying to predict where the
Courts analysis will go. I do not think Davis and
Hammon provide a definitive answer in this case. I do
know that Amouaks out-of-court statements would not be
admissible under the hearsay rules or under formerly
well-established case law as set out in Ohio v.
Roberts.
The Confrontation Clause of the Sixth
Amendment provides: In all criminal prosecutions, the
accused shall enjoy the right ... to be confronted with
the witnesses against him. Loretta Amouak was an
important witness against Clark. Yet Clark had no
opportunity to confront Amouak at his trial.
Fundamental fairness suggests that Clark should not
have been convicted based on Amouaks out-of-court
statements unless the jury had the opportunity to see
Amouak testify, to see Clark cross-examine her, and to
weigh Amouaks credibility on that basis. I therefore
respectfully dissent.
_______________________________
1 Clark, Memorandum Opinion No. 5112 at 1-3, 2006 WL 2578642
at *1.
2 Id., Memorandum Opinion No. 5112 at 13, 2006 WL 2578642 at
*7.
3 Id., Memorandum Opinion No. 5112 at 2, 2006 WL 2578642 at
*1.
4 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
5 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).
6 See Johnson v. State, 579 P.2d 20, 22 (Alaska 1978); see
also State v. Nollner, 749 P.2d 905, 908-09 (Alaska App.
1988); Sluka v. State, 717 P.2d 394, 399 & 399-400 n. 6
(Alaska App. 1986).
7 Clark, Memorandum Opinion No. 5112 at p. 3, 2006 WL 2578642
at *2.
8 Id.
9 Id.
10Id.
11Id., Memorandum Opinion at 5, 2006 WL 2578642 at *2.
12Id., quoting Cassell v. State, 645 P.2d 219, 221 (Alaska
App. 1982).
13Id.
14Crawford, 541 U.S. at 59, 124 S.Ct. at 1369.
15Id., 541 U.S. at 51, 124 S.Ct. at 1364.
16Davis, 547 U.S. at 823 n. 2, 126 S.Ct. at 2274 n. 2.
17 Id., 547 U.S. at 827, 126 S.Ct. at 2276.
18 Id.
19 Id., 547 U.S. at 827, 126 S.Ct. at 2276-77.
20 Id., 547 U.S. at 828, 126 S.Ct. at 2277 (emphasis in the
original).
21 Id., 547 U.S. at 823, n. 2, 126 S.Ct. at 2274 n. 2.
22 People v. Vigil, 127 P.3d 916, 924 (Colo. 2006) (en banc)
(reviewing cases construing Crawford and concluding
that the term objective witness refers to an
objectively reasonable person in the declarants
position).
23 See, e.g., Vigil, 127 P.3d at 926 (concluding that a
seven-year-old victims statements to a doctor were not
testimonial because, under the circumstances, a
reasonable seven-year-old would not have believed that
those statements would be used at a criminal trial);
State v. Scacchetti, 690 N.W.2d 393, 396 (Minn. App.
2005) (concluding that a three-year-old victims
statements were not testimonial because the examination
was for purposes of medical diagnosis and the defendant
failed to show that the circumstances led the victim to
reasonably believe that her disclosures would be
available for use at a later criminal trial); State v.
Sheppard, 842 N.E.2d 561, 563, 567 (Ohio App. 2005)
(concluding that a six-year-old victims statements were
not testimonial because the examination was for
purposes of medical diagnosis and there was no evidence
to show that the victim realized that her statements
would be used in a criminal prosecution); State v.
Saunders, 132 P.3d 743, 746, 749 (Wash. App. 2006)
(Here, there is no reason to believe that a reasonable
person in [the adult victims] position would think she
was making a record of evidence for a future
prosecution when she told [the paramedic and the
doctor] that her injuries occurred as a result of her
boyfriend choking her and throwing her against the
wall.); State v. Moses, 119 P.3d 906, 907-08, 912
(Wash. App. 2005) (concluding, after noting that the
doctor had no role in the investigation of the assault,
that there was nothing in the record to indicate that
the adult victim believed or had reason to believe that
her statements to the doctor identifying her husband as
her abuser would be used at a subsequent trial).
Compare People v. Sisavath, 13 Cal.Rptr.3d 753, 756,
757-58 (Cal. App. 2004) (concluding that the statements
made by a child victim in an interview conducted by a
specially trained forensic interviewer were
testimonial, where the interview took place after the
preliminary hearing, and was conducted in the presence
of the district attorney and investigator).
24 Compare State v. Snowden, 846 A.2d 36, 47 (Md. App. 2004)
(statements made by child victims to a child protective
services social worker were made for purposes of
criminal prosecution, and thus were testimonial).
25 Cage, 155 P.3d at 208.
26 Id.
27 Id.
28 Id.
29 Id. at 209.
30 Id. at 210.
31 Id. at 210 & 213-14.
32 Id. at 217, 222.
33 Id. at 217.
34 Id.
35 Id. at 222.
36 Id. at 219.
37Cage, 155 P.3d at 216-17, 218-19.
38See Davis, 547 U.S. at 826, 126 S.Ct. at 2276 (The question
before us ... is whether, objectively considered, the
interrogation that took place in the course of the 911 call
produced testimonial statements.) and 547 U.S. at 828, 126
S.Ct. at 2277 (We conclude from all this that the
circumstances of [the] interrogation objectively indicate
[that] its primary purpose was to enable police assistance
to meet an ongoing emergency.).
1 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
2 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).
3 541 U.S. at 59, 124 S. Ct. at 1369.
4 Davis, 547 U.S. at 821, 126 S. Ct. at 2273; Crawford, 541
U.S. at 68, 124 S. Ct. at 1374.
5 Davis, 547 U.S. 813, 126 S. Ct. 2266. Davis and Hammon were
consolidated in Davis. However, I refer to them separately
for purposes of comparison.
6 Id. at 817-18, 126 S. Ct. at 2270-71.
7 Id. at 819, 126 S. Ct. at 2271.
8 Id. at 827-29, 126 S. Ct. at 2276-77.
9 Id. at 827-28, 126 S. Ct. at 2276-77.
10Id. at 819, 126 S. Ct. at 2272.
11Id. at 820-21, 126 S. Ct. at 2272-73.
12Id. at 820, 126 S. Ct. at 2272.
13Id. at 829-30, 126 S. Ct. at 2278.
14579 P.2d 20 (Alaska 1978).
15Id. at 22.
16Id.; see also Sluka v. State, 717 P.2d 394, 398-99 (Alaska
App. 1986) (childs statement to her doctor that her father
had hit her with a shoe was inadmissible to the extent it
identified the father as the assailant).
17448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980).
18Id. at 66, 100 S. Ct. at 2539.
19Id.
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