State v. Burke, 478 P.3d 1096

Background:

In July 2009 K.E.H. reported a rape at Wright Park, went to Tacoma General ER, then underwent a sexual assault forensic/medical exam by SANE nurse Kay Frey the same day.
During the SANE exam Frey recorded and later testified to K.E.H.’s verbatim history (assault details, injuries, answers about penetration/ejaculation/strangulation, and a description of the assailant).
DNA from K.E.H.’s underwear (collected during the exam) matched Ronald Burke in 2011; Burke was charged in 2014 and tried in 2016.
Burke objected that K.E.H.’s out-of-court statements to the SANE were testimonial (Sixth Amendment) and that they were inadmissible hearsay not covered by ER 803(a)(4); trial court admitted them; Court of Appeals reversed as testimonial.
Washington Supreme Court reversed the Court of Appeals: held nearly all exam statements nontestimonial (primary purpose medical), one assailant-description statement testimonial but admission was harmless given overwhelming DNA evidence; remanded to correct certain LFOs under 2018 statutory changes.

Issues:

Issue	State's Argument	Burke's Argument	Held
Whether SANE-elicited statements were testimonial under the Sixth Amendment	Statements were mainly for medical diagnosis/treatment (nontestimonial); SANE is a medical provider	Statements were primarily forensic/prosecutorial (testimonial) and thus inadmissible absent confrontation	Nearly all statements were nontestimonial because their primary purpose was medical; only the assailant-description was testimonial
Admissibility under ER 803(a)(4) (medical-diagnosis/treatment hearsay exception)	Statements were reasonably pertinent to diagnosis/treatment and relied on by the SANE	Many statements (especially ID) were not made to promote treatment and thus fall outside the exception	Trial court did not abuse discretion admitting most statements under ER 803(a)(4); the assailant-description was not covered and admission was erroneous
Harmless-error for admission of testimonial statement(s)	Even if testimonial, untainted evidence (DNA, injuries) overwhelmingly proves guilt	Admission of testimonial ID statement prejudiced Burke	Admission of assailant-description was error but harmless beyond a reasonable doubt given overwhelming DNA and medical evidence
Legal financial obligations (LFOs) challenged post-HB 1783 (2018 amendments)	Certain fees/interest were no longer authorized for cases not yet final	Burke sought LFOs stricken based on indigency and prior DNA collection	Remanded to strike $200 filing fee and $100 DNA collection fee and to amend interest accrual consistent with HB 1783

Key Cases Cited

Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause: testimonial statements inadmissible absent unavailability and prior cross-examination)
Davis v. Washington, 547 U.S. 813 (2006) (Primary-purpose test: statements testimonial when aimed at establishing past events for prosecution)
Michigan v. Bryant, 562 U.S. 344 (2011) (Primary-purpose inquiry requires objective evaluation of circumstances; ongoing emergency factor)
Ohio v. Clark, 576 U.S. 237 (2015) (Context and questioner’s identity are critical to the primary-purpose analysis)
State v. Scanlan, 193 Wn.2d 753 (2019) (Medical-provider statements less likely testimonial; history guides treatment rationale)
State v. Beadle, 173 Wn.2d 97 (2011) (Statements to police/CPS in non-emergency can be testimonial)
State v. Koslowski, 166 Wn.2d 409 (2009) (911-call and informal statements can be testimonial depending on circumstances)
State v. Guloy, 104 Wn.2d 412 (1985) (State must prove constitutional error harmless beyond a reasonable doubt)