State v. DeverState v. Dever
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Criminal law -- Sexual abuse of child -- Admissibility of child declarant‘s statements -- Admission into evidence of a hearsay statement pursuant to a firmly rooted hearsay exception does not violate a defendant‘s right of confrontation --
- A trial court does not abuse its discretion when it admits a child declarant‘s statements made for the purpose of medical diagnosis or treatment pursuant to
Evid.R. 803(4) , without first establishing the child declarant‘s unavailability to testify. (State v. Boston [1989], 46 Ohio St.3d 108, 545 N.E.2d 1220, modified.) - Statements made by a child during a medical examination identifying the perpetrator of sexual abuse, if made for purpose of diagnosis and treatment, are admissible pursuant to
Evid.R. 803(4) , when such statements are made for the purposes enumerated in that rule. - The admission into evidence of a hearsay statement pursuant to a firmly rooted hearsay exception does not violate a defendant‘s right of confrontation. (White v. Illinois [1992], 502 U.S. 346, 112 S.Ct. 736, 116 L.Ed.2d 848, followed.)
(No. 91-1498 -- Submitted April 28, 1992 -- Decided August 19, 1992.)
Appeal from the Court of Appeals for Hamilton County, No. C-880712.
At approximately 10:00 p.m. on October 21, 1987, Diane Potter, who lived on the second floor of a multifamily residence in Mariemont, Ohio, overheard a conversation by tenants on the first floor of the building. The tenants of the first floor were defendant-appellee Frederick M. Dever, Jr., his wife, and their daughter Kristen, age four and one half, who had been adopted by appellee. Dever‘s wife was not at home during the time in question. Potter testified at trial that the ductwork in the building often carried sounds from the first floor up to her living area, so that she could clearly hear what was said in the apartment below. Potter testified:
“I heard Kristen crying and I heard Fred saying come on,
Potter further testified that she was in her bathroom when she heard the following coming from the Devers’ bathroom below:
“Then I heard them talking. I heard Fred groaning, he groaned three times very loudly and that was what made me really start listening, I didn‘t turn on the water, I just listened and I heard him tell Kristen to count to 600 and I heard her counting and then he said oh, that feels so good and she said oh, does that feel so good, daddy, and he said yes and then he told her to keep counting and she stopped and he said come on, just count to 20, just count to 20 and she said no, I don‘t want to. I could hear mumbling and then I heard her say oh, daddy, you got it all over my hand and he said yes, I got it all over you, didn‘t I, and then I just left the house, I went next door and called the police.”
Potter went to the police station and filled out a report on the incident that same night. The next day, Dever‘s wife was informed of the allegations, and cooperated in removing Kristen from Dever‘s presence. On October 23, the following day, the sexual abuse intervention team of the Hamilton County Department of Human Services became involved. Kristen was taken to Children‘s Hospital where she was seen by Dr. Ann Saluke, M.D.
Dr. Saluke‘s physical examination of Kristen did not disclose any physical signs of recent sexual conduct. However, during the course of the consultation, Kristen told Dr. Saluke of the events that had recently occurred, and identified Dever as the perpetrator.
Dever was charged with one count of rape, in violation of
A crucial issue at trial was whether Dr. Saluke should be permitted to testify to what Kristen had related during the course of the medical examination. Dever made a motion in limine to prohibit Dr. Saluke from testifying as to what Kristen told her. The trial judge, specifically relying on United States v. Renville (C.A. 8, 1985), 779 F.2d 430, indicated that he believed the testimony was admissible, but did not rule on the motion at that time.
At trial, and over Dever‘s objection, Dr. Saluke was permitted to repeat Kristen‘s statements to the jury pursuant to
“Kristen told us that her father put his pee pee in her mouth and there was some white stuff that had a yucky taste and also that he put his hands on her pee pee and his pee pee on her pee pee and she identified her genital area as the pee pee.”
After deliberations, the jury returned verdicts of guilty on both counts. The trial judge found that the counts were allied offenses of similar import and merged them, sentencing Dever only on the rape count.
Upon appeal, Dever argued that the trial court erred by allowing Dr. Saluke to testify regarding Kristen‘s statements. The court of appeals affirmed the conviction, but recharacterized the trial judge‘s finding that Kristen was not competent to testify (see
Dever appealed that decision to this court, which overruled his motion for leave to appeal. 52 Ohio St.3d 701, 556 N.E.2d 526. Dever‘s motion for rehearing was also denied. 53 Ohio St.3d 706, 558 N.E.2d 62.
Dever then appealed to the United States Supreme Court, which vacated the judgment of the Hamilton County Court of Appeals, and remanded the cause to the appellate court for further consideration in light of Idaho v. Wright (1990), 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638. Dever v. Ohio (1990), 498 U.S. 974, 111 S.Ct. 575, 112 L.Ed.2d 581.
In a split decision, the court of appeals reversed the judgment of the trial court, and remanded the cause for a new trial. The majority decided that the record did not support a conclusion that Kristen‘s statements were motivated by her own desire for medical diagnosis or treatment. The dissenting judge would have approved admitting Kristen‘s hearsay statements under
The cause is now before this court upon the allowance of a motion for leave to appeal.
Arthur M. Ney, Jr., Prosecuting Attorney, and Christian J. Schaefer, for appellant.
Andrew B. Dennison, for appellee.
Alice Robie Resnick, J. This case presents the continuing problem of reaching just results in child abuse cases involving statements made by young children during the course of a medical examination. We must consider the admissibility of the statements at trial pursuant to the hearsay exception contained in
In considering the circumstances in the instant case, we must address two principal issues: (1) Did the trial judge abuse his discretion in allowing Dr. Saluke to repeat at trial statements Kristen made to her during the medical examination as an
For the reasons which follow, after careful consideration, we resolve the first issue by finding no abuse of discretion on the part of the trial judge in admitting the hearsay testimony pursuant to
I
The initial issue for our consideration is whether the trial court abused its discretion in admitting into evidence Kristen‘s hearsay statement to Dr. Saluke under
Because this court wrestled with many issues raised in similar circumstances in State v. Boston, supra, a detailed examination of that case is required.
A
Boston involved a defendant who was tried and convicted of gross sexual imposition based on an incident involving his two-and-one-half-year-old daughter. The defendant had been given weekend visitation rights with his daughter pending a divorce from his wife. After being with the father one weekend, the child awoke during the night screaming. The mother questioned the child, who related, “Daddy put something up my bucket.” Upon finding redness around the child‘s vagina and anus, the mother took the child to a doctor the next day. Although the doctor found no specific evidence of abuse, he referred the mother to Akron Children‘s Hospital. The director of the hospital‘s Child Abuse Team, a pediatrician, later examined the child. The child told the pediatrician that “Daddy put a telephone in here and it hurt.” Based on the child‘s statements, her medical history, and the examination (which revealed a whitish discharge and redness around the labia minora, and a hymenal opening larger than normal), the doctor made a diagnosis of probable vaginal penetration and possible rectal penetration. A psychologist, an expert in child sexual abuse, counselled the child, and determined that the child was not falsifying, and that she had been a victim of sexual abuse.
At defendant‘s trial, the prosecution attempted to present the child‘s testimony. The trial judge conducted a voir dire
This court, in reversing the judgment of conviction and remanding to the trial court, addressed a number of evidentiary issues which arise within the context of a child abuse case.4 Especially relevant to the instant case is Boston‘s discussion of
B
In essence, Boston found that the admissibility of statements for medical treatment or diagnosis pursuant to
C
While Boston noted that many courts have applied
Boston, in commenting on a federal court decision that did not question whether a three-year-old child‘s motivation in telling a doctor about an abuse episode was relevant to the admissibility of the child‘s hearsay statements (United States v. Nick [C.A.9, 1979], 604 F.2d 1199), stated: “* * * [B]y discarding the motivational component of
D
Boston also raised the question whether
In summary, Boston reasoned that the common-law hearsay exception for statements made for medical treatment stems from the declarant‘s motivation to speak the truth in order to obtain effective treatment. Boston also found that Ohio‘s
II
Boston, in noting that Ohio
We are aware of the significant factual difference between the case at bar and Boston. Boston involved allegations of child sexual abuse which occurred in the context of a “bitter battle for custody.” Id., 46 Ohio St.3d at 108, 545 N.E.2d at 1222. For that reason, the possibility that the child‘s statements to professionals may have been programmed or influenced by the custody battle made those statements more suspect than the statements in the instant case. Although the Boston court did not approve the admission of the child‘s statements under
A
The practical result of reading Boston‘s rigid motivational requirement into
Though we agree with Boston that “applying this [
We do not find that the common-law basis for the medical treatment exception to the hearsay rule, at least where young children are concerned, is as specific as Boston found. Rather, the focus must be slightly different when a child is involved. The trial court has broad discretion to determine whether a declaration should be admissible as a hearsay exception. State v. Rohdes (1986), 23 Ohio St.3d 225, 229, 23 OBR 382, 385, 492 N.E.2d 430, 434; see, generally, State v. Duncan (1978), 53 Ohio St.2d 215, 7 O.O.3d 380, 373 N.E.2d 1234. The trial court should consider the circumstances surrounding the making of the hearsay statement. If the trial court finds in voir dire that the child‘s statements were inappropriately influenced by another, then those statements would not have been made for the purpose of diagnosis or treatment. This inquiry will vary, depending on the facts of each case. For example, the trial court may consider whether the child‘s statement was in response to a suggestive or leading question (as was the case in Idaho v. Wright), and any other factor which would affect the reliability of the statements (such as the bitter custody battle in State v. Boston). If no such factors exist, then the evidence should be admitted. The credibility of the statements would then be for the jury to evaluate in its role as factfinder. In addition, the witness whose testimony brings in the child‘s hearsay statement can be cross-examined about the circumstances surrounding the making of the statement. But if the trial court discerns the existence of sufficient factors indicating that the child‘s statements were not made for the purpose of diagnosis or treatment, the statements must be excluded as not falling within
We find further support for our holding in that portion of
In addition, the motivational element of
Because the Ohio version of
Keeping in mind that the child‘s motivation is not the sole focus of the
“While in cases involving adults a cognitive connection between speaking the truth to physicians and receiving proper medical care may seem obvious, further analysis of the circumstances surrounding the examination of a child is necessary to determine whether the child understood the need to be truthful to the physician.” People v. Meeboer, supra, 439 Mich. at 329, 484 N.W.2d at 629. We agree with this reasoning, but stress that our holding in this case requiring this specific examination of the circumstances applies only to
We therefore hold that a trial court does not abuse its discretion when it admits a child declarant‘s statements made
In applying our holding to the facts of this case, we find that the trial court properly evaluated the circumstances accompanying the making of the child‘s statements. Since there is insufficient reason to doubt that the statements were made for purposes of medical diagnosis or treatment, the trial court did not abuse its discretion in finding that the statements were admissible pursuant to
B
We now proceed to specifically consider the propriety of admitting a child‘s statement identifying the perpetrator of her abuse under
Boston, in considering the admissibility of a child‘s statement identifying the perpetrator, stated that “Renville‘s conclusion, however, rests on the underlying assumption that the victim‘s motivation in identifying the abuser is to aid in her treatment or diagnosis.” Boston, 46 Ohio St.3d at 123, 545 N.E.2d at 1235. Thus, the Boston court was not required to resolve the question, even though it did raise it. In so doing, Boston did not reject Renville‘s analysis per se, but found it inappropriate in the circumstances of that case.
In view of our modification of Boston, we adopt Renville‘s reasoning, and hold that statements made by a child during a medical examination identifying the perpetrator of sexual abuse, if made for purpose of diagnosis and treatment, are admissible pursuant to
C
In order to avoid any confusion we note that
We also recognize that
The Staff Note to
III
Having thus found that the trial judge properly admitted Kristen‘s statements, as related at trial by Dr. Saluke, pursuant to
In examining the Confrontation Clause issue, we must consider several decisions by the United States Supreme Court regarding the interplay between the hearsay rule and the Confrontation Clause.
Although the hearsay rule (along with its exceptions) and the Confrontation Clause protect similar values, the United States Supreme Court has repeatedly noted that the two are not coextensive. See California v. Green (1970), 399 U.S. 149, 155-156, 90 S.Ct. 1930, 1933-1934, 26 L.Ed.2d 489, 495; Dutton v. Evans (1970), 400 U.S. 74, 86, 91 S.Ct. 210, 218, 27 L.Ed.2d 213, 225-226. Thus, in some situations, even if evidence is admissible at trial as a hearsay exception, that evidence may nonetheless be inadmissible because it violates a defendant‘s right of confrontation. The United States Supreme Court has provided a framework in which to analyze how the Confrontation Clause affects a particular hearsay exception.
A
In Ohio v. Roberts (1980), 448 U.S. 56, 65, 100 S.Ct. 2531, 2538, 65 L.Ed.2d 597, 607, the United States Supreme Court set forth a general approach for accommodating the sometimes competing interests of the Confrontation Clause and the hearsay exceptions. The court stated that the
In United States v. Inadi (1986), 475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390, the Supreme Court considered whether the Confrontation Clause requires the prosecution to show that a co-conspirator is unavailable to testify before the co-conspirator‘s statements may be admitted into evidence. The court held that the prosecution was not required to establish unavailability in that situation, and that this specific requirement of Roberts applies only where the prosecution seeks to admit testimony from a prior judicial proceeding instead of live testimony. Inadi, 475 U.S. at 392-394, 106 S.Ct. at 1124-1126, 89 L.Ed.2d at 396-398. The court stated that Roberts “cannot fairly be read to stand for the radical proposition that no out-of-court statement can be introduced by the government without a showing that the declarant is unavailable.” Id. at 394, 106 S.Ct. at 1125, 89 L.Ed.2d at 398. The court also noted that the true mission of the Confrontation Clause is to “‘advance “the accuracy of the truth-determining process in criminal trials.“‘” Id. at 396, 106 S.Ct. at 1126, 89 L.Ed.2d at 399, quoting Tennessee v. Street (1985), 471 U.S. 409, 415, 105 S.Ct. 2078, 2082, 85 L.Ed.2d 425, 432.
The Supreme Court again considered the admissibility of statements made by a co-conspirator in Bourjaily v. United States (1987), 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144. The court observed that the hearsay exception for statements of a co-conspirator is firmly rooted. Id. at 183, 107 S.Ct. at 2782, 97 L.Ed. 2d at 157. For that reason, the Supreme Court held that a co-conspirator‘s statements carry with them sufficient “indicia of reliability” and therefore a court need not conduct an independent inquiry into the reliability of the statements. Id.
B
While the foregoing cases set forth a general method of applying Confrontation Clause analysis when the declarant does not testify at trial, two recent Supreme Court decisions considered the interaction of the Confrontation Clause with hearsay exceptions in circumstances involving sexual abuse of young children. In Idaho v. Wright (1990), 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638, the court considered whether a trial court properly admitted a hearsay statement made by a child pursuant to Idaho‘s “residual hearsay exception.”9 The court began its analysis by noting that “Idaho‘s residual
The Wright court made clear that its analysis would have been completely different if the hearsay exception had been “firmly rooted“: “Admission under a firmly rooted hearsay exception satisfies the constitutional requirement of reliability because of the weight accorded longstanding judicial and legislative experience in assessing the trustworthiness of certain types of out-of-court statements.” Id. at 817, 110 S.Ct. at 3147, 111 L.Ed.2d at 653.
In White v. Illinois (1992), 502 U.S. 346, 112 S.Ct. 736, 116 L.Ed.2d 848, the Supreme Court again considered the use of hearsay statements made by a child against a defendant being prosecuted for sexual assault of the child. The trial court allowed the hearsay statements into evidence as spontaneous declarations and also as statements made in the course of medical treatment. The appellate court affirmed that decision, finding that the accused‘s right of confrontation was not denied. Although the four-year-old girl did not testify at trial, no specific finding of unavailability was made by the trial court.
The White court began its analysis by limiting the application of the unavailability requirement of Roberts, stating that “Roberts stands for the proposition that unavailability analysis is a necessary part of the Confrontation Clause inquiry only when the challenged out-of-court statements were made in the course of a prior judicial proceeding.” (Emphasis added.) White, supra, 502 U.S. at 354, 112 S.Ct. at 741, 116 L.Ed.2d at 858. Thus, unavailability of the declarant need not be demonstrated when a hearsay statement is admitted pursuant to an
In agreeing that there was no denial of the defendant‘s right of confrontation, the Supreme Court held that “where proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the Confrontation Clause is satisfied.” Id. at 356, 112 S.Ct. at 743, 116 L.Ed.2d at 859. The court noted that such firmly rooted hearsay exceptions as spontaneous declarations and statements made in the course of receiving medical care are recognized as normally occurring in contexts that provide substantial guarantees of trustworthiness. Id. at 355, 112 S.Ct. at 742, 116 L.Ed.2d at 859. For that reason, the Confrontation Clause is automatically satisfied by a hearsay exception which is firmly rooted -- the presence of “particularized guarantees of trustworthiness” need not be shown. Id. at 356-357, 112 S.Ct. at 742-743, 116 L.Ed.2d at 859-860.
Consistent with that approach, we determine that
C
In summary, Wright and White hold that, even in cases involving hearsay statements of children in the prosecution of the children‘s alleged abusers, if the hearsay statement at issue falls within a firmly rooted hearsay exception, as in the instant case, its admission does not violate the defendant‘s right of confrontation. White, supra, at 356, 112 S.Ct. at 743, 116 L.Ed.2d at 859; Wright, supra, at 816, 110 S.Ct. at 3146, 111 L.Ed.2d at 652. In such a case, the prosecution is not required to demonstrate the unavailability of the declarant. White, supra, at 354, 112 S.Ct. at 741, 116 L.Ed.2d at 858.
On the other hand, if the hearsay statement at issue does not fall within a firmly rooted hearsay exception, further inquiry is required. Hearsay not falling within a firmly rooted exception must be excluded unless “particularized guarantees of trustworthiness” can be shown. Wright, supra, at 817, 110 S.Ct. at 3147, 111 L.Ed.2d at 653.
In the instant case, Kristen‘s hearsay statements were admitted under a firmly rooted hearsay exception. Therefore, Dever‘s right of confrontation was not denied.
Our interpretation of White and Wright comports with the interpretation of other courts. For example, in Dana v. Dept. of Corr. (C.A. 8, 1992), 958 F.2d 237, the court found that a four-year-old child‘s hearsay statements to a pediatrician fell within the medical diagnosis and treatment hearsay exception. The court, citing White, concluded that, because this exception is firmly rooted, the reliability of the statements could be inferred and the admission of the statements into evidence did not violate the Confrontation Clause. Id. at 239. See, also, United States v. George (C.A. 9, 1992), 960 F.2d 97, 99 (“When hearsay testimony is properly admitted pursuant to [the medical treatment] exception, no further guarantees of trustworthiness are required.“); United States v. Balfany (C.A. 8, 1992), 965 F.2d 575 (Confrontation Clause does not preclude admission of child‘s out-of court statements under firmly rooted hearsay exception for medical treatment).
We hold that
Conclusion
In conclusion, we find that the hearsay statements made by Kristen to Dr. Saluke were properly admitted into evidence pursuant to
Judgment reversed.
Moyer, C.J., Holmes, Douglas and H. Brown, JJ., concur.
Sweeney and Wright, JJ., dissent.
Wright, J., dissenting. I simply cannot join in the majority‘s decision to ignore this court‘s prior decisions and to rewrite
I fully sympathize with the pain and anguish suffered by abused children and their families, and understand the difficulties inherent to the prosecution of a terrible crime that may leave no physical evidence and whose victims are unable to competently speak for themselves. The temptation is great to liberally construe the hearsay exceptions to allow more effective prosecution of these crimes. We must remember, however, that our ruling on the scope of this hearsay exception will apply with equal force to cases in which the evidence is overwhelming and to cases in which a doctor‘s statements are the only evidence that supports a conviction. If one imagines an innocent man or woman accused of this heinous crime, today‘s ruling evokes grave concern.
The majority‘s decision not only allows the child to speak through the mouths of others in a situation where the child cannot be questioned, but also gives the child‘s words the extra authority of being spoken by a doctor. Moreover, the testimony does not possess the traditional guarantees of reliability that form the basis for this particular hearsay exception.
Most importantly, this decision seriously undermines
I agree with the court of appeals that this case should be remanded to the trial court. An advanced four-year-old might have the required level of understanding,13 but because the trial judge ruled that this child‘s awareness of the need for medical treatment was irrelevant to the admissibility of her statements, the trial record was not developed on this factual question. Accordingly, I would affirm the well-reasoned judgment of the court of appeals.
Sweeney, J., concurs in the foregoing dissenting opinion.