*1 adversary commences until the State tach against a sus- judicial proceedings
criminal simply does Amendment Sixth
pect, the McNeil, 501 U.S. context. this apply 111 S.Ct. denying did not err The suppress. motion to
Babb’s entry is:
Judgment affirmed. ME 130
Mary WALTON Jr. IRELAND
David C. No. Aro-13-245.
Docket Judicial Maine.
Supreme Court 11, 2014. June
Argued: 25, 2014.
Decided: Nov.
SILVER, J. appeals David C. 1] Ireland Jr. from an Order of Protection from Abuse en- Isle, tered in the District (Presque Court J.) O’Mara, upon finding based that Ire- sexually land abused the parties’ five-year- old daughter. argues Ireland an committed abuse of discretion by admitting evidence of statements that the victim to a social during play worker therapy identifying Ireland as her abuser. Ireland also contends that the court’s find- ing of was clearly abuse erroneous. We affirm.
I. BACKGROUND Mary David Ireland 2] and Walton had an relationship intimate 2006. Af- ended, ter relationship Walton learned she was The pregnant. parties’ daughter was born in December 2006. later, year About a the court issued an order allocating parental rights and re- sponsibilities. The order modified several As times. pursu- October order, ant to the primarily child lived with and stayed Walton with Ireland every other weekend and for certain extended periods during school par- vacations. The ties generally cooperative with one another had problems and no adhering to the visitation schedule. According to Wal- Perkins, Logan Esq. (orally), and Jef- ton, began the child to exhibit reluctance Silverstein, frey M. Esq., Bangor, for ap- cry to visit Ireland and would hysterically pellant David C. Ireland Jr. leaving before for visits with him. Never- theless, encouraged Walton the child to go Dunleavy, James M. Esq. (orally), Curri on the visits. Trask, P.A., er Isle, and Presque appel lee Mary Walton. evening in [¶ 3] One October af- ter the child had a visit returned from SAUFLEY, C.J., Panel: and Ireland, gave bath. Walton her a While ALEXANDER, SILVER, MEAD, bathing Walton child GORMAN, JABAR, and JJ. said that it “hurt and pointed down there” to the area of her crotch. Walton asked SAUFLEY, C.J., Majority: and why, explana- gave and ALEXANDER, SILVER, JABAR, JJ. tion. brought Walton the child to the GORMAN, Dissent: MEAD emergency JJ. at room The Aroostook Medical took the child to Spurwink the child Walton Center, [f examined where doctors a forensic evaluation in December to schedule sex-abuse advised Walton Spurwink Andrews, met Donna evaluation 2012. The child child-abuse day, filed an following Walton employed clinical social worker Clinic. a licensed from abuse or- protection seeking pri- action as a forensic interviewer. Andrews’s *3 the child’s behalf Ireland on against der the mary purpose evaluating child was an to schedule Spurwink contacted and to determine whether there was evidence evaluation. Andrews the that abuse occurred. asked there; why child if knew she was the she days, next the Over the several
[¶4]
know.
responded
child
that she didn’t
and
fear
upset
expressed
child became
interview,
During the
Andrews asked the
longer loved her. Walton
no
that Walton
if anyone
something
child
had done
to her
Barker,
Cindy
meet with
to
took
child
it,
her
tell
crotch and told
not to
about
to
this behav-
to address
therapist,
a clinical
‘Tes, Dad,
responded,
which the child
but
Barker,
clinical social
a licensed
ior.
anyway.”
gave
in I told
The child
further
worker,
her role to the child
explained
descriptions of the
age-appropri-
to be an
abuse consistent with
she considered
what
initiated conversation with what
had told Barker.
way, then
she
ate
open-ended questions
by asking
the child
physical
7] A
examination revealed
[¶
that
family. The child stated
about
abuse.
no evidence
trauma or
Andrews
father
to see her
and
going
did not like
she
that
child
recommended
remain
anymore.
him
want to see
she did not
that
Barker,
law
therapy with
that
enforcement
session,
repeatedly
the child
During the
investigate,
and DHHS
and that the child
stated,
[my]
butt and crotch
picks
“he
with her father
have no contact
while
puts
fingers
his
fingers
with
The
investigation continued.
child did
lick
me,”
he would then
and said that
Andrews again.
meet with
that
child told Barker
she
fingers. The
At the
on
com-
hearing
8]
Walton’s
[¶
confused when
fa-
surprised and
abuse,
from
both
plaint
protection
this,
“really gross,”
it
that was
ther did
Barker
testified
Ire-
and Andrews
over
why he
understand
that she didn’t
as
objection
land’s
to the statements
do that.
The
describing
child made
the abuse.
has continued to meet
Barker
5]
conditionally
court
admitted the state-
every
other
the child for
hour
gave
parties
opportunity
ments but
her treatment
Barker described
week.
issue, indicating
to brief the
that it would
being
help
as
the child
for the child
plan
testimony from the record if the
strike the
herself,
expressing
to feel comfortable
it that
parties’ briefs convinced
and insecurities that
on anxieties
work
be excluded.
should
occurred,
help
and to
devel-
have
By agreement
parties,
explained
Barker
coping skills.
op
old,
then
years
who was
six
testified
content of the child’s statements —in-
party
present in the
being
without either
identity
person
she de-
cluding the
first,
At
the child
courtroom.1
testified
abusing
important
her —was
scribed
her “daddy”
not know who
she did
helped
it
Bark-
because
plan
the treatment
was,
if
anyone
but when asked
she knew
for the child’s
the basis
er
understand
named David she
him as her
identified
fears
insecurities.
court,
testify.
competent
party
chal-
conducting preliminary
Neither
has
1. The
after
lenged
appeal.
determination on
the child was
questioning, concluded that
asked how Ireland treated
grounds.
medical-treatment
The
“dad.” When
her,
responded, “Bad.” She ex-
explained
the child
had stricken Andrews’s
this was because “he did
plained that
testimony because it concluded that
wrong,” which means “when
something
forensic interview had not been undertak-
bad,” but that
something
she
someone did
en for
treat-
what
the bad thing
had
was.
forgotten
ment. The court
explained
further
that it
that she did not like going
She
testified
found the child’s
Barker to
spanked
because he
her.
see her father
be more reliable than the child’s in-court
that her father asked her
She also testified
testimony due to the child’s therapeutic
did,”
about “what he
but
not to talk
relationship with
Barker.
court not-
anyway.
mother
she told her
She said
ed that
passed
several months had
since
else,
anyone
not tell
that she did
and that
the child had had
contact
Ireland
*4
know whether she
any-
she did not
knew
and that
testimony
her
indicated that she
Cindy
one
Barker. She
named
testified was unable to
important
remember
facts.
only reason she
not
that the
did
want to
appealed.
Ireland
cross-appealed,
Walton
spanked her,
see
was because he
Ireland
contesting the exclusion of Andrews’s tes-
and
was no
that there
other reason she did timony.
see him.
want to
II. DISCUSSION
Ireland testified that he
[¶ 10]
occa-
sionally spanked
daughter
his
discipline.
as
A.
Testimony
Barker’s
explained
daughter
He
usually
An
[¶ 12]
out-of-court statement
change
wanted to
her underwear when she
offered to prove the truth of the matter
changed into her pajamas, and that at
asserted is
and is inadmissible
these
he
times
noticed “that her vagina
exception
unless an
applies. M.R. Evid.
was red and that her rear end was red.”
801(c), 802. Pursuant
to M.R. Evid.
Ireland attributed the redness to the
803(4), hearsay
are not
exclud
child’s failure to wipe herself adequately
ed
they
rule if
are “[state
after using the toilet
explained
and
that he
ments made for
of medical diag
applied ointment to treat the redness and
nosis or treatment and describing medical
irritation. He denied
engaging
any con-
history, or
or
past
present symptoms, pain,
duct
his daughter
that could be con-
sensations,
or the inception
general
sidered sexual.
character
cause or external source
Following
hearing,
[¶ 11]
the court
thereof
reasonably
insofar as
pertinent to
protection
issued the
from abuse order
diagnosis or treatment.”
“A trial court’s
against Ireland, finding that Ireland had
decision to admit or
alleged
exclude
hear
daughter,
abused
ordering
that he
say evidence is reviewed
for
abuse of
her,
have no contact with
temporarily
and
discretion.” State v. Guyette, 2012 ME
awarding
parental
sole
rights
respon-
and
¶ 11,
889
Here,
in-
Barker testified that
For
or treatment.
diagnosis
medical
impor
de-
identity
a victim
of the child’s abuser was
stance, in
case in which
a
alleged
of an
and location
a treatment
for
developing
plan
time
tant for
scribed
circumstances,
her
as the
brother
rape and identified
these
as
the child. Under
we concluded:
perpetrator,
case
who
any
involving
in almost
member,
by family
identity
[the
intercourse that caused
That it was
abused
and that
the doctor
pertinent
see
may
victim]
indeed be
perpetrator
evening are facts
previous
occurred
diagnosis
Danaipour,
treatment.
See
reasonably
diagnosis
to the
pertinent
(“Child
at
routine
therapists
386 F.3d
297
identity of
But the
treatment....
treatment,
or
ly,
part
their
scene of the
perpetrator and the
by
type
obtain the
fall within that hear-
do not
alleged rape
...
of the
patients
identity
here
about the
exception.
say
of the abuse....
state
perpetrator
[Such
(Me.1981).
True,
460, 467
438 A.2d
usually reasonably pertinent
State v.
are
ments]
Similarly, we concluded
child.”);
of the
States v.
United
de-
medically irrelevant
describing
(10th Cir.1993)
Joe,
1488,
1494
F.3d
assault,
as that the
a sexual
such
tails of
(“[W]here
the abuser is member of the
stop,”
improper-
“asked that it
victim
household,
family
identity
the abuser’s
admitted
to M.R. Evid.
ly
pursuant
physician’s
especially pertinent
“role in
testifying physician’s
where
an
regarding
appropriate
recommendation
examining
provid-
the victim was limited to
treatment....”); Morgan
v.
course
and the doctor
ing emergency room care”
(4th
Foretich,
F.2d
Cir.
949-50
or how the
“did not
indicate whether
1988) (“[A]
determining
treat
physician
knowledge
may
that the
have ‘asked
victim
may rely
on factors
child abuse
stop’ helped
diagnosis.”
that it
an
identity
such as
assailant’s
cases
Sickles,
655 A.2d
patient
not
relied
be
on were
concluded, however,
have
We
Renville,
adult.”);
United States
rele
may
that certain details that
be
(8th Cir.1985) (“The
exact
F.2d
injuries
physical
vant
to treatment
psychological
nature
extent
emo
may
pertinent
to treatment
be
problems which ensue from child abuse
For in
psychological
trauma.
tional
depend
identity
often
on the
of the abus
stance, we
that a sexual-as
determined
er.”). The
trial court did
abuse its
victim’s statement
doctor
sault
admitting
discretion
evidence
*7
“per
with a knife
she had been threatened
the child made to Barker iden
to the emotional trauma that
tained
Ireland as her abuser.
tifying
...
“the
addressing”
where
physician
prefaced
by saying
his remark
physician
Testimony
B. Andrews’s
rape
of
that
the emotional ramifications
argues
Walton
that
prob
significant part of the victim’s
are a
by excluding
abused its
discretion
v.
lem in relation
treatment.” State
testimony.
Andrews’s
Because Walton ob
(Me.1990).
727,
Rosa,
Simi
575 A.2d
729
court,
in the trial
tained a favorable result
Ames,
that a
larly,
we determined
opinion, we
and we affirm the court’s
that he was afraid
young child’s statement
In
ordinarily
reach this issue.
diagnosis
pertinent
of
father was
¶
M.,
7,
46,ME
903 A.2d
re
2006
Johnna
“[g]iven
of
and treatment
that
331;
Dep’t
v.
Envtl.
see also Storer
identify
the cause of
of
(Me.1995);
Prot.,
1191, 1192
Ullis
60,
656 A.2d
it....” 2003 ME
and overcome
fear
153,
Harbor,
¶¶
459 A.2d
of Boothbay
v.
14, 16,
Town
155-56
commit an abuse of
that
court did not
is unpersuasive.
This contention
“No
excluding
by
Andrews’s testimo
discretion
of
principle
appellate review is better es
conclusion that the forensic
ny
on its
based
principle
tablished than the
credibility
pur
was not undertaken for the
interview
determinations are left to
judg
the sound
pose
diagnosis or treatment. Andrews’s
of
of
of
the trier
fact.” Weinstein v.
and assess
role was
collect
evidence
¶
Sanborn,
181, 3,
1999 ME
an interview
abuse. When
is conducted Moreover,
previously
we have
held that a
collecting
evi
primarily
child’s
provide
out-of-court statements
suf
determining whether
oc
dence and
abuse
support
finding, by
ficient evidence to
curred,
may
the court
conclude that state
evidence,
abuse,
preponderance of the
are
during
made
interview
even when the child
testifies
diagnosis
made for
or treat
did
abuse
not occur and that he does not
803(4);
See M.R. Evid.
Handra
ment.
making
remember
the earlier statement
¶ 16,
(observ
han,
15,ME
A.3d 79
describing the
In
abuse.
re Charles Jason
that, where the interviewer
ing
“conducted
Jr.,
R.,
(Me.1990).
572 A.2d
1081-82
interview of the
forensic
Here,
explained
24]
as co-director of the
the trial court
capacity
Spurwink
child’g
Program”
Child Abuse
it was
clear
“not
found the
that the child’s statements ... were made Barker to be
more credible than
child’s
purposes medical
or treat
Illinois,
in-court testimony. See
v.
White
ment”). The court did not abuse its dis
346, 355-56,
502 U.S.
112 S.Ct.
by
cretion
excluding evidence of state
(1992) (“[F]actors
L.Ed.2d 848
that con-
during
ments the child made
the forensic
reliability
tribute
the statements’
cannot
interview.
recaptured
by
be
even
later in-court testi-
mony. ...
statement
[A]
Finding
C. The Court’s
of Abuse
course of procuring medical
...
services
plaintiff
A
seeking
or
special
carries
guarantees
credibility
protection
der
prove
from abuse must
a trier
may
replicated
of fact
not think
by
preponderance
of the evidence that
testimony.”).
courtroom
The court
plaintiff.
defendant abused the
19-A
testimony
found the child’s
confusing
to be
4006(1)(2013).
§
M.R.S.
We
a trial
review
contradictory
noted
also
finding
court’s
of abuse for clear error
inability
child’s
to recall certain basic facts
affirm
“and will
a trial
findings
court’s
if during
testimony.
credibility
Because
they
supported by
are
competent evidence
exclusively
determinations are
within the
record,
in the
even if the
might
evidence
fact-finder,
province of the
con-
Ireland’s
support
alternative
findings of
fact.”
tention that
testimony
the child’s
must be
¶
Handrahan,
15, 13,
2011 ME
[¶ 23] Ireland the court, the child’s [the out-of-court] court’s finding of was clearly abuse errone amply ous supported finding because the the court’s during her in-court testimony, by preponderance....”). effectively [of abuse] The any denied that abuse had evidence was support occurred. Ireland contends sufficient to the required the court accept finding was to the court’s of abuse by preponder- child’s testimony being more reliable of the ance evidence.
891 or pertinent diagnosis to treatment. entry The is: The compellingly record establishes that it Judgment affirmed. was) Any for plan treatment a victim of J., J., GORMAN, MEAD, certainly sexual abuse will include a with whom dissenting. joins, strategy for the child from protecting fur by person. Expert ther abuse testi from I dissent the respectfully [¶25] mony in the record establishes the element daughter’s conclusion that the Court’s of pertinence diagnosis or treatment person of Ireland as the who identification Sickles, See v. without doubt. State 655 touched her falls within inappropriately (Me.1995) 1254, (“Pertinence, A.2d 1257 hearsay exception by created Rule 803(4), contemplation within the of Rule 803(4) is Maine Rules of Evidence. of the objective beyond consideration the de disagree with the While I do Court’s (quoting Cassidy clarant’s state of mind.” gov- principles of the broad recitation State, 1, 666, v. 74 808(4), Md.App. 536 A.2d 686 I con- application ern the Rule evidentiary (Md.Ct.Spec.App.1988))). record does not clude that the ad- provide a sufficient foundation for The first of the two inquiries— [¶ 28] these mission of statements. whether the 803(4)provides: Rule purposes diagnosis of medical or treat necessarily calls into the sub following are not excluded issue The ment — rule, jective state of mind of the though even declarant declarant. subjective This available as witness: critical element is the rai- 803(4) exception.
son d’etre of the Rule jus As the “The Advisor’s Notes indicate: (4) of medi- purposes Statements tification exception] patient’s [for diagnosis cal or treatment. Statements strong motivation to be truthful.” M.R. diagnosis of medical made for Note; Evid. Adviser’s see also Mea describing or medical his- treatment and States, 538, ney F.2d v. United 112 539-40 tory, symptoms, pain, past present or or (2d Cir.1940) (“A (Hand, J.) goes man sensations, inception gener- or or or physician expected to recount all that al character of the cause external feels, reasonably per- he and often he has with some care source thereof insofar as diagnosis tinent to or treatment. searched consciousness be sure that he .... nothing will leave out because his separate The rule establishes two part depend upon treatment will in what (1) points inquiry: distinct did the de says.”). engage he Some do courts clarant make the statements with the inquiry such an and limit the focus of their subjective purpose obtaining a medical analysis only treating (2) phy on whether the diagnosis or treatment? pertinent sician deems a statement pertinent information See, State, e.g., treatment. v. Stallnacker only on treatment? Court focuses (1986). 9, 883, hold, App. I 19 Ark. 884 inquiry. the second howev S.W.2d er, Others, however, questions be that Rule that both must answered conclude affirmative, upon requires unique based evidence in consideration of cir record, before such statements are relating cumstances of each case exceptions admissible as See, patient’s e.g., Cassidy motivation. rule. State, Md.App. (“[N]o Here, (Md.Ct.Spec.App.1988) one would in- the second the two willingly injury improp risk medical from
quiries required the court determine identity by withholding necessary abuser er whether the child’s *9 physi- data to furnishing false declarant’s of subjective data or state mind. In would determine the course of typical cian who instance of an adult who sin- data.”); of on basis cerely for partic- seeks medical attention a Peneaux, 482 F.3d United States condition, the analysis ordinarily ular is Cir.2005) (“The (8th require- motive quite straightforward. The declarant’s that the victim must have had ment means purpose is obvious from context of the subjective receiving motive a selfish matters, medical consultation. In those treatment or proper medical the state 803(4) analysis quickly turns to the seeking treat- mind of someone medical pertinence element. omitted)). marks (quotation ment.” a communicating 31] When child is sense, princi Common and the however, provider, with a health care 803(4) underlying the Rule ples exception, “purpose” question becomes more com- approach require the articulated in Cassi plex nuanced. Children do not gen- dy person If a and Peneaux. seeks medi erally seek medical Although care. a condition, for a particular cal treatment may report child a or symptom condition he will likely is be truthful with the others, a parent or it is usually an describing when caregiver the nature or adult who seeks the on care the child’s complaints. Meaney, source behalf. The fact that an adult a brings F.2d at 539-40. As with other to a provider child for the exceptions, the circumstances of such diagnosis or treatment does not create independent create an statements basis greater likelihood the child’s state- previously truthfulness. We have not di the medical care provider will be rectly addressed the Rule element A may truthful.4 not understand subjective the declarant’s importance of giving an accurate his- making statements to medical providers. tory to the provider. medical care Unless Our existing jurisprudence upon focuses the evidentiary record establishes that the element; the pertinence the declarant’s child had an understanding of the connec- subjective purpose for the statements in tion between reporting truthful and mean- those cases obvious from the context of ingful diagnosis and treatment and gave those Today, statements. clari Court subjective information with the pur- fies the purpose that both element and the information, pose giving such truthful pertinence element must be established the critical foundation for Rule statement, the proponent of the deter lacking. mines that Walton has successfully done ] so. daughter [¶ Walton took her 32 by Designs facility Life for “play therapy” In discerning whether the de- Barker, Cindy who holds clarant, certifica making specific when Worker, as a tion Licensed Master Social care provider, health made those Clinical Conditional.5 Walton cites as specific purpose of that, obtaining treatment, reason this action or it is “She [the necessary daughter] saying court to don’t consider I love her circumstances of the statements and the anymore. She upset. She wasn’t the note, address, 4. Arguably, opposite may occur. A I but do not the issue of may who setting, fear the or doctor medical play therapist whether a makes a "medical may minimize, likely deny, be more diagnosis” provides "medical treatment” discourage misstate circumstances to further those terms are used in the rule. medical attention. *10 and of medical treat- purposes Walton further testified girl.” little same absolutely the Spurwink when the record contains professionals evidence, that she continue recommended allows no reasonable in- Center no play therapy attend the daughter ference, have of such. Cindy Barker.
sessions suggest I a not child’s 35] do [¶ any of basis record devoid 33] provider medical care re- to a statements any of a court to conclude reliability than greater indicia of quire re- to Ms. Barker daughter’s statements required be of adult’s those would any subjective purpose on from sulted Rather, the proof out-of-court statements. diagnosis or daughter’s part obtain circumstances of state- regarding otherwise, the court Stated treatment. simply an adult or a ments — child— what, knowing if way utterly had no of for a be sufficient establish basis must daughter thought play anything, to conclude that the declarant made court were intended to accom- therapy sessions obtaining mean- them tell important it would be why plish diagnosis or treatment.7 In the ingful only testimony in the rec- truth. The evidence, of such complete absence daughter’s remotely addresses ord lacking, for Rule foundation is the testimo- of the sessions perceptions qualify not as exceptions the statements do that, just “I intro- ny of Ms. Barker —I Accordingly, I rule. would of ex- myself to her. Just kind duced for the court deter- vacate remand role, way my age-appropriate in an plained plaintiff mine whether the met burden kids. I talk to I I work with what do. these proof the absence of testimony insight provides no kids.” This ments. particular- perceptions, the daughter’s into what testimony does relate ly when the actually
was said. may have parent The fact that a ME to a taking subjective into a
facility does not translate of Maine STATE the child—the declarant —to intent of diag- make statements Melanie S. MOURINO. provides no The law nosis treatment. No. Han-13-523. Docket imputed to be parent’s purpose for a basis I con- Accordingly, would child. Supreme Judicial Court of Maine. of the out-of-court clude that the admission 8,Oct. 2014. Argued: Ms. by the child to Barker Nov. 2014. Decided: simply The trial cannot erroneous.6 court a particular had conclude that declarant
subjective making intent following, colloquy, would pur- 7. A such Although the Rule element of the- parties emphasized by at the pose likely be sufficient: level, expressly or it must be addressed trial Q: Why you seeing [the counselor]? were admitting a impliedly by a trial before A: I was [sad/mad/scared]. Because made for as a statement statement Q: why talking you Did think to her about diagnosis or purposes medical treatment. help? you [sad/mad/scared] here did address the. issue The trial court decision, it with purpose in its but conflated A: Yes. pertinence. the element