State v. A. PorterState v. A. Porter
Justice Beth Baker delivered the Opinion of the Court.
PROCEDURAL AND FACTUAL BACKGROUND
¶2 One morning in August 2014, Michelle Allen arrived at work with a black eye and bruises on her neck, face, and arms. Her supervisor, Michael Bonander, called the police to report that Allen had been assaulted. Belgrade Police Officer Jesse Stovall responded and spoke to Allen. She identified Porter as her attacker. After the interview, Officer Stovall brought Allen to the emergency room. Allen signed a medical release form authorizing the hospital to release patient health information to the police. Dr. Tiffany Kuehl, an emergency room physician and the medical director of the Sexual Assault Nurse Examiner (SANE) team at the hospital, examined Allen. The exam revealed tenderness, bruises, and other markings on Allen‘s back, shoulders, neck, face, arms, and legs. Dr. Kuehl noted that Allen‘s injuries were consistent with strangulation. Following the medical examination, the police arrested Porter for assault. After his arrest, Porter waived his Miranda rights and gave an interview to the police. The State charged Porter with felony aggravated assault under
¶4 Sharina Johnson, Allen‘s upstairs neighbor, testified that she heard “thuds” coming from the apartment the afternoon of the assault. She heard Allen tell Porter to stop hitting her and Porter reply, “No.” Johnson also stated that she heard Allen “crying hysterically” and “gasping for air.”
¶5 Bonander testified that Allen was “really upset” when she came to work the next morning. He testified that she was covered in bruises on her face, neck, and arms, and that he called the police.
¶6 Officer Stovall testified that when he first responded to the incident, he noticed that Allen had a black eye, a swollen cheek, and abrasions and bruises all over her body. He testified that he transported her to the hospital for examination. He stated that he was not present during the medical examination, but did talk to Dr. Kuehl afterwards pursuant to the release signed by Allen. Officer Stovall also testified to Porter‘s responses from his police interview. Porter told Office Stovall that he and Allen had gotten into a fight over the cable bill and began pushing and shoving each other. Porter stated that while pushing and shoving each other in the doorway of the bedroom they tripped and fell into the bedroom wall, cracking it. They then ended up struggling on the bed. Porter told the officers that he grabbed Allen‘s throat after she grabbed his. He reported that he held her throat for a period of “maybe” twenty to twenty-five seconds, “enough just to get her off
¶7 Dr. Kuehl testified to her examination of Allen. She testified that Allen had bruises and abrasions all over her body, including on her shoulder, back, neck, face, arm, hand, knee, and hip. She stated that Allen “had a tender area across the entire anterior or front of her neck, and above the tender area and bruise there were petechia,” which she described as “tiny purplish red spots that appear on the skin when very small capillary blood vessels are ruptured.” Dr. Kuehl observed that the injuries on Allen‘s neck and face were indicative of strangulation.
¶8 Over Porter‘s objection, Dr. Kuehl also testified about the “verbal history” of the incident she elicited from Allen. Dr. Kuehl testified that she takes verbal histories from patients because “[i]t is very important to understand what the injuries might be, and also to assess their safety and need for further treatment.” She stated that she relies on what patients tell her to diagnose and render treatment.
¶9 Dr. Kuehl asked Allen about the identity of her attacker. Dr. Kuehl explained the importance of this question, stating,
I attempt to obtain an identity, aiming at guaranteeing the safety of the patient, and where they will go home, so if they were attacked by someone in their apartment, I make sure that I have alternative arrangements for them to stay when I discharge them from the emergency department.
Dr. Kuehl explained further that, in apparent domestic violence cases, “It is my job to ensure the safety of all my patients, so it is my habit to ensure that they are living in safe
¶10 Allen reported to Dr. Kuehl that during the first strangulation she was lifted off the ground by the throat. Allen told Dr. Kuehl that during the second strangulation she was strangled to the point of unconsciousness. Dr. Kuehl testified that it is also her “custom and habit” to ask patients involved in domestic assaults “what‘s going through their mind during the assault.” She stated that Allen told her that, “at the moment that she lost consciousness, during the second strangulation, she felt that she was going to die.” Dr. Kuehl testified that, in her many years of experience working with victims of strangulation, such feelings of impending death were commonly reported.
¶11 Allen‘s verbal history gave Dr. Kuehl concern that Allen‘s carotid arteries may have been injured by excessive pressure, which could cause acute stroke or death in the days or weeks subsequent to an episode of strangulation. She ordered a CT scan of Allen‘s neck to evaluate this risk. The scans came back normal. Dr. Kuehl ultimately diagnosed Allen with strangulation and asphyxia, suspected posterior rib fracture, a concussion, and bruising. She said that the cause of Allen‘s injuries was “assault by her domestic partner with strangulation.” Dr. Kuehl testified that in her opinion it was a near fatal strangulation.
¶13 A Gallatin County jury found Porter guilty of felony aggravated assault. The District Court sentenced Porter to fifteen years in prison. Porter appeals.
STANDARDS OF REVIEW
¶14 We review a district court‘s conclusions of law and interpretations of the constitution de novo. State v. Mizenko, 2006 MT 11, ¶ 8, 330 Mont. 299, 127 P.3d 458. “Whether evidence is relevant and admissible is left to the sound discretion of the district court and will not be overturned on appeal absent an abuse of discretion.” State v. Whipple, 2001 MT 16, ¶ 17, 304 Mont. 118, 19 P.3d 228. A determination that
DISCUSSION
¶15 1. Did Dr. Kuehl‘s testimony concerning the victim‘s out-of-court statements violate Porter‘s Confrontation Clause rights?
¶16 Porter argues that Allen‘s statements to Dr. Kuehl were testimonial in nature. For that reason, he contends that the District Court violated his rights under both the federal
¶17 The Sixth Amendment to the United States Constitution guarantees that “the accused shall enjoy the right . . . to be confronted with the witnesses against him.” Article II, Section 24 of the Montana Constitution guarantees that “the accused shall have the right . . . to meet the witnesses against him face to face.” These rights are similar, but we have acknowledged that Montana‘s Confrontation Clause may provide greater protection than the Sixth Amendment to the United States Constitution in certain circumstances. State v. Clark, 1998 MT 221, ¶¶ 20-25, 290 Mont. 479, 964 P.2d 766 (holding that a written state crime lab report entered into evidence without requiring testimony from and cross-examination of the technician who wrote the report violated Article II, Section 24). Although Porter argues that Article II, Section 24 provides greater protection of his right to face witnesses against him than the federal constitution provides, he fails to articulate how his claim implicates any enhanced right afforded under the Montana Constitution. Because Porter does not explain what additional protection the state constitution affords him for this particular claim, we analyze the state and federal constitutional claims together. State v. Covington, 2012 MT 31, ¶¶ 20-21, 364 Mont. 118, 272 P.3d 43 (holding that we will not undertake a unique state constitutional analysis unless
¶18 Under the Sixth Amendment Confrontation Clause, testimonial statements made out of court may not be admitted as evidence in a criminal trial against a defendant unless the declarant is unavailable to testify and the defendant had a previous opportunity to cross-examine the declarant. See Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 1396 (2004). Since Crawford, the United States Supreme Court has further defined what constitutes a testimonial statement. See, e.g., Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2274-75 (2006) (“Without attempting to produce an exhaustive classification . . ., it suffices to decide the present cases to hold as follows: 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. They 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.“); Michigan v. Bryant, 562 U.S 344, 366, 131 S. Ct. 1143, 1160 (2011) (“[W]hether an ongoing emergency exists is simply one factor—albeit an important factor—that informs the ultimate inquiry regarding the ‘primary purpose’ of an interrogation.“).
¶19 Most recently, the Supreme Court explained that “the question is whether, in light of all the circumstances, viewed objectively, the ‘primary purpose’ of the conversation was to ‘creat[e] an out-of-court substitute for trial testimony.‘” Ohio v. Clark, ___ U.S. ___,
¶20 Clark concerned the testimony of two preschool teachers who questioned a three-year-old boy about who had hurt him when he came to school with bruises on his face and body. Clark, 135 S. Ct. at 2178. The boy told them his mother‘s boyfriend had caused the injuries. Id. The trial court determined that the boy was incompetent to testify under Ohio law, but admitted the teachers’ testimony about the boy‘s out-of-court statements. Id. The Supreme Court held that the boy‘s statements were nontestimonial. The Court explained that the teachers sought the identity of the abuser in order “to protect the victim from future attacks.” Clark, 135 S. Ct. at 2181. The Court held that “whether the teachers thought that this would be done by apprehending the abuser or by some other means is irrelevant.” Id. The fact that the teachers’ questions, along with their statutory duty to report suspected child abuse, “had the natural tendency to result in Clark‘s prosecution” was also irrelevant. Clark, 135 S. Ct. at 2183.
¶21 Relying on this Court‘s interpretation of Crawford in Mizenko, ¶ 23, Porter maintains that Allen‘s statements were testimonial because she had a “clear reason” to believe that her statements would be used in court as substantive evidence against Porter.
¶22 The State counters that the statements to Dr. Kuehl were not testimonial. The State argues that the proper inquiry is whether “in light of all the circumstances, viewed objectively, the ‘primary purpose’ of the conversation was to ‘creat[e] an out-of-court substitute for trial testimony.‘” Clark, 135 S. Ct. at 2180 (quoting Bryant, 562 U.S. at 358, 131 S. Ct. at 1155). The State argues the primary purpose of Allen‘s statements to Dr. Kuehl was to receive medical treatment for her injuries.
¶23 We decided Mizenko only two years after the Supreme Court‘s decision in Crawford. More recently, we applied the “primary purpose” test to hold that driver‘s license suspension letters issued by the State Motor Vehicle Division are not testimonial for Confrontation Clause purposes. City of Kalispell v. Omyer, 2016 MT 63, ¶¶ 23-24, 383 Mont. 19, 368 P.3d 1165 (citing Davis, 547 U.S. at 822, 126 S. Ct. at 2273). Given both this Court‘s and the Supreme Court‘s recent holdings articulating the primary purpose test
¶24 Dr. Kuehl testified that that she takes verbal histories from patients to assess both their safety and their need for further treatment. Like the teachers in Clark, Dr. Kuehl testified that she asks about the attacker‘s identity to ensure the safety of her patients upon discharge from the emergency room, i.e., to prevent future harm. Beyond ensuring future safety, the verbal history provided Dr. Kuehl with the information she needed to decide what treatment to order for Allen. In fact, Dr. Kuehl ordered a CT scan to rule out injury to Allen‘s carotid arteries based on Allen‘s statements explaining the manner in which she was strangled—including being lifted off the ground, feeling like she was going to die, and losing consciousness.
¶25 Porter argues that Dr. Kuehl acted as a SANE during her examination. Porter argues that SANEs can act essentially as government agents when they carry out their investigative duties as part of a formal law enforcement investigation. The record does not support Porter‘s contentions. Dr. Kuehl is a physician, not a nurse. She did not gather evidence primarily for possible future criminal prosecution; she examined Allen‘s injuries, evaluated her condition, and provided her with medical care. Although Dr. Kuehl stated that part of her role was to ensure that “there is an accurate representation of the injuries . . . so that the patient may be able to pursue a case in court,” this does not automatically transform the examination‘s primary purpose into creating an out-of-court substitute for trial testimony. Dr. Kuehl had an obligation, beyond any potential use in future prosecution, to document Allen‘s injuries accurately and to treat her condition
¶26 The circumstances surrounding Dr. Kuehl‘s conversation with Allen lead us to conclude that the primary purpose of the conversation was not to create an out-of-court substitute for trial testimony. Officer Stovall drove Allen to the emergency room, had her sign a release, and waited for her; he did not, however, participate in the actual medical exam. Before going to the hospital, Allen already had identified her attacker and described the attack to Office Stovall. Further, Dr. Kuehl is not a law enforcement officer. The exam took place in the emergency room, not at the police station. Dr. Kuehl conducted tests to rule out internal injuries and provided Allen with treatment, including intravenous fluids and pain medication. Based on these circumstances, Allen‘s primary purpose in speaking with Dr. Kuehl was to receive medical care for her injuries, not to create an out-of-court substitute for trial testimony. Allen‘s statements to Dr. Kuehl were therefore nontestimonial and their admission did not violate Porter‘s Confrontation Clause rights under the Sixth Amendment to the United States Constitution or Article II, Section 24 of the Montana Constitution.
¶27 2. Did Dr. Kuehl‘s testimony meet the
¶28 Porter argues that the District Court erred in admitting testimony under
¶29 The State counters that Allen‘s statements concerned the very reason she sought care from Dr. Kuehl and that Dr. Kuehl indeed relied on those statements in deciding to order a CT scan and chest x-ray and to administer intravenous fluids and medications. Further, the State argues that the continuum of medical treatment logically extends beyond the initial hospital visit; in fact, Dr. Kuehl testified that asking about the identity of the attacker was important to assess Allen‘s safety and to make alternative arrangements upon discharge if needed.
¶30 Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.
¶31 Courts are guided by two factors in determining admissibility under
¶32 Porter challenges the second prong of the analysis, arguing that the statements were not “reasonably pertinent to diagnosis or treatment.” See
¶33 Further, we agree with the State that Dr. Kuehl‘s role as a medical provider logically extended beyond treating cuts and bruises. Dr. Kuehl testified that she sought information
¶34 The medical community recognizes Intimate Partner Violence (IPV) as a public health problem. See, e.g., Connie Mitchell & Lisa James, Evolving Health Policy on Intimate Partner Violence, in Intimate Partner Violence: A Health-Based Perspective, 1, 1 (Connie Mitchell ed., 2009); Frederick P. Rivara et al., Healthcare Utilization and Costs for Women with a History of Intimate Partner Violence, 32 Am. J. Preventative Med. 89, 89 (2007). Medical studies have demonstrated the significant health consequences of IPV beyond the physical injuries immediately presenting to the medical provider. See Nancy Sugg, Intimate Partner Violence: Prevalence, Health Consequences, and Intervention, 99 Med. Clin. N. Am. 629, 633 (2015). Women who have experienced IPV have an increased risk of chronic pain, gastrointestinal disorders, and chronic disease, such as asthma, stroke, high blood pressure, high cholesterol, heart attack, heart disease, and cardiovascular disease. Sugg, supra, at 633-34. Nearly twenty percent of women who experienced IPV within the past year had a partner who prevented them from going to the doctor or interfered with their healthcare. Sugg, supra, at 634. Additionally, women who have experienced IPV are more likely to have mental health issues and are more likely to engage in other risky behaviors, such as smoking and substance abuse. Sugg, supra, at 635-36. Studies have shown increased healthcare utilization and medical care costs for individuals with a history of IPV, costing the healthcare system millions of dollars in additional healthcare costs each year. Rivara, supra, at 89, 94. One study showed that
¶35 Best practices for medical intervention “include acknowledging the problem, assessing safety, referring to appropriate resources, and documenting appropriately in the medical record.” Sugg, supra, at 641. As part of the safety assessment, medical providers may ask questions to assess the future risk of severe injury or death their patient faces. Sugg, supra, at 642. One danger assessment tool that has been shown to be effective at predicting future risk of severe injury or death in clinical trials includes both objective questions (“Has he ever used a weapon or threatened you with a weapon?) and subjective questions (“Do you believe he is capable of killing you?“). Sugg, supra, at 642. Studies show that positive answers to such questions are predictive that the patient is at higher risk of severe injury or death. Sugg, supra, at 642. Such questions help medical providers determine the patient‘s health risks and potential next steps. See Sugg, supra, at 642.
¶36 Dr. Kuehl testified that “it is very important to understand what the injuries might be, and also to assess [the patient‘s] safety and need for further treatment.” Dr. Kuehl further testified that it was part of her “custom and habit” in making her assessment of patients to inquire into their state of mind during the assault. Answers to questions about the environmental factors of injury inform treatment decisions the medical provider makes. They also provide medical providers with a better understanding of the risk of future harm the patient faces. Health issues do not occur in a vacuum. Medical providers recognize the significance of IPV, its severity, and its impact on their patients’ future health when gathering information from the patient to make medical decisions and to provide medical advice and treatment. The Rules of Evidence allow providers to offer testimony about what informs their diagnosis and treatment decisions. Subjective impressions, such as the patient‘s state of mind during the attack, can inform a doctor‘s assessment of the future health risks a patient faces. Therefore, statements identifying Allen‘s attacker and her state of mind were reasonably pertinent to diagnosis and treatment. The District Court did not abuse its discretion in admitting the testimony of Dr. Kuehl under
¶37 The conviction is affirmed.
/S/ BETH BAKER
We Concur:
/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE
Justice Dirk Sandefur, specially concurring.
¶38 I concur with the Court‘s ultimate holdings that Dr. Kuehl‘s disputed testimony was admissible under
¶39 Narrowly at issue is Dr. Kuehl‘s testimony that Allen told her that Allen‘s unnamed domestic partner assaulted her and that “she felt that she was going to die” when he was strangling her. The State does not dispute that Dr. Kuehl‘s testimony was inadmissible hearsay within the general rule of
the declarant made the statement for the purpose of obtaining a “medical diagnosis or treatment;” - the statement “described:”
- the declarant‘s “medical history;”
- “past or present symptoms, pain, or sensations;” or
- the “inception or general character of the cause or external source” of those symptoms, pains, or sensations; and
- the statement was “reasonably pertinent to diagnosis or treatment” of the declarant‘s symptoms, pains, or sensations.
¶40 Independent of
¶41 Here, Allen did not seek medical care after the assault and there is no evidence that she intended to do so until an investigating law enforcement officer contacted her at work the next day and obtained her consent to take her to the hospital for an emergency room
¶42 Under these circumstances it is unreasonable to conclude that Allen‘s motive for consenting to the medical examination did not include the desire to obtain any necessary medical care or that such motive was not the primary motivation for consenting to the examination. Likewise, regardless of Dr. Kuehl‘s unquestionable ulterior prosecutorial motive as the medical director of the SANE program, her first and foremost purpose was to provide medical diagnosis and care to Allen. Without further elaboration, I would hold that Dr. Kuehl‘s testimony was admissible pursuant to
/S/ DIRK M. SANDEFUR
Justice Laurie McKinnon joins the special concurrence Opinion of Justice Sandefur.
/S/ LAURIE McKINNON
Notes
(Emphasis added.)The following are not excluded by the hearsay rule, even though the declarant is available as a witness: . . . Statements 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.