State v. HopkinsState v. Hopkins
¶1 Devonn Shontelle Hopkins appeals her conviction of four counts of second degree child molestation and one count of second degree rape of a child. We affirm.
¶2 Devonn Hopkins, age 27, had several sexual encounters with 13-year-old K.R. These encounters began a few days after K.R.’s 13th birthday in April 2004, and included several instances in which Hopkins touched K.R.’s vaginal area with her fingers. The sexual behavior progressed until Hopkins performed oral sex on K.R.
¶3 Hopkins met Taylor Edmonds, KR.’s older sister, in the military while they were both stationed in Korea. When they came back from Korea and were stationed at Fort Lewis, Edmonds introduced Hopkins to her family and Hopkins began spending significant time with them. She often stayed the
¶4 KR.’s family members became suspicious about Hopkins’s relationship with K.R. E.R. testified that on one occasion she heard Hopkins and K.R. kissing in her bedroom. E.R. confronted K.R. the next day, but K.R. denied that anything happened. E.R. eventually told Edmonds about this incident. Edmonds confronted both K.R. and Hopkins, but both denied kissing.
¶5 Edmonds’s suspicions continued, however, and in June 2004, she looked in KR.’s diary. There, K.R. wrote that she loved Hopkins and that she and Hopkins had kissed. Edmonds took the diary to their mother, Jody Kephart. Kephart called the police and Hopkins’s commanding officer, Captain Rhonda Jones, at Fort Lewis.
¶6 Lewis County Sheriff’s Deputy Stacy Brown interviewed Kephart and K.R. K.R. initially denied the relationship because she did not want to get Hopkins in trouble but eventually related the specific details about the sexual encounters. Deputy Brown referred K.R. to the sexual assault clinic at Providence St. Peter Hospital in Olympia.
¶7 Nancy Young, a nurse practitioner, examined K.R. and produced a report. Young had a family emergency, however, and did not testify at trial. Dr. Deborah Hall, her supervisor, testified instead, relating the contents of Young’s report to the jury. In the report, Young documented that K.R. admitted that Hopkins had performed oral sex on her. Dr. Hall then testified that the physical exam was normal but consistent with the reported sexual activity.
¶8 Meanwhile, Captain Jones called Hopkins into her office and read Hopkins her Miranda
¶9 Shortly afterward, Agent Laurinda Acosta from the military’s Criminal Investigation Division interviewed Hopkins. Acosta advised Hopkins that she was under investigation and then read Hopkins her Miranda warnings. Hopkins acknowledged her rights and agreed to talk. Hopkins initially denied any improper behavior but then confessed. Hopkins then wrote and signed a confession detailing several sexual encounters. The jury convicted Hopkins of four counts of second degree child molestation and one count of second degree rape of a child.
I. Confession
¶10 Hopkins argues that the Miranda warnings Jones and Acosta read to her were constitutionally defective because they explained that Hopkins had a right to a military lawyer at no expense rather than a civilian public defender. Her argument fails.
¶11 We review the adequacy of Miranda warnings de novo. United States v. San Juan-Cruz,
¶12 Here, the military Miranda form Acosta used read:
“I have the right to talk privately to a lawyer before, during, and after questioning and to have a lawyer present with me during questioning. This lawyer can be a civilian lawyer I arrange for at no expense to the Government or a military lawyer detailed for me at no expense to me, or both.”
Appellant’s Suppl. Clerk’s Papers (ASCP) (Nov. 3, 2005) at 6. Acosta testified that she read this warning and had Hopkins read and initial it. Hopkins acknowledged
¶13 Hopkins now argues that this warning was misleading because it does not say that she had a right to a public civilian attorney and because it did not explain the difference between a military lawyer and a civilian lawyer. But Hopkins cites no authority that Miranda requires a civilian attorney. Neither the rationale nor the language of Miranda suggests that an appointed attorney must be a civilian. The Miranda Court reasoned that the presence of an attorney was needed to negate the coercive atmosphere of an interrogation. Miranda,
¶14 The warnings Acosta used clearly conveyed that Hopkins had the right to consult an attorney. Moreover, though Hopkins argues that a military attorney may not have the same confidentiality requirements, the warning stressed that the conversation with the attorney would be private. Accordingly, the warnings reasonably conveyed Hopkins’s rights.
¶15 Two additional factors weigh against her position. First, the rules expressed in Miranda govern criminal interrogations by military authorities. United States v. Tempia,
who is peculiarly and entirely the accused’s own representative; who owes him total fidelity; to whom full disclosure may be safely made in a privileged atmosphere; ... a legal advisor of his own—not one . . . who cannot protect the accused with the attorney-client privilege.
Tempia,
¶16 Second, the form Acosta used specifically informed Hopkins that the appointed military lawyer would be “detailed for me.” ASCP (Nov. 3, 2005) at 6 (emphasis added). Therefore, she was told explicitly that the military lawyer’s duty would be to her, not the military.
¶17 We also note that the Georgia Supreme Court has addressed this version of warnings and held that an appointed military attorney satisfies Miranda’s requirement for the presence of an attorney. Burger v. State,
¶18 There is compelling evidence in this case that Hopkins was aware of and understood her Miranda rights. The trial court determined that Jones and Acosta informed Hopkins of her constitutional rights. The court also found that Hopkins heard her constitutional rights, reread the warnings herself, and understood her rights. The court then found that Hopkins voluntarily waived her rights and gave a statement. These findings are supported by Jones’s and Acosta’s testimony that they did not coerce Hopkins, that each advised Hopkins of her rights, and that Hopkins willingly participated after reading and initialing her rights. There was no error.
¶19 Case law does not support Hopkins’s assertions that she needed to understand the difference between a civilian and a military attorney, and that the rights form was inaccurate and misleading. And even though we address her assertions, her claims are naked castings into the constitutional sea and are not sufficient to command judicial consideration and discussion. In re Rosier,
II. Dr. Hall’s Testimony
¶20 Hopkins next asserts that the trial court erred in allowing Dr. Hall to testify about Nancy Young’s examination of K.R. She argues that Dr. Hall’s testimony constituted impermissible hearsay because K.R.’s
¶21 Hearsay is not admissible unless it fits under a recognized exception to the hearsay rule. ER 802. And here, Dr. Hall’s testimony is double hearsay. K.R.’s statements to Young are the first level of hearsay, and Young’s report itself is the second level of hearsay. In instances of multiple hearsay, each level of hearsay must be independently admissible. ER 805; State v. Rice,
¶22 Hopkins argues that K.R.’s statements identifying Hopkins as the abuser are inadmissible hearsay. The State argues that K.R.’s statements to Young are admissible under ER 803(a)(4) as statements for the purposes of medical diagnosis. The State’s position is correct.
¶23 Normally, statements to medical providers identifying the perpetrator of a crime are not admissible under the medical diagnosis or treatment exception. State v. Ashcraft,
¶24 Therefore, Young, in examining K.R., reasonably needed to know the abuser’s identity in order to properly treat K.R. Hopkins asserts that because the police referred K.R. to the clinic, Young already knew that Hopkins was the suspect. But K.R. may have lied to police about the abuser’s identity, and, therefore, Young’s questioning was still necessary for K.R.’s medical treatment. That the information she elicited happened to confirm K.R.’s statement to the police does not change the basic medical purpose in determining the abuser’s identity. Thus, the State is correct that KR.’s statements to Young are admissible under ER 803(a)(4).
¶25 Even if K.R.’s statements to Young were admissible, Hopkins argues that they were testimonial hearsay and should have been excluded under Crawford. But “when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.” Crawford,
¶26 Hopkins next argues that Young’s report is inadmissible hearsay. The State argues that Young’s report is admissible under the business records exception to the hearsay rule. To be admissible under the business records exception, the business record must (1) be in record form; (2) be of an act, condition, or event; (3) be made in the regular course of business; (4) be made at or near the time of the fact, condition, or event; and (5) satisfy the court that the sources of information, method, and time of preparation justify admitting the evidence.
¶27 But Hopkins correctly points out that the State failed to establish the necessary prerequisites for the business record exception. Dr. Hall did not testify how reports were made or whether they were produced in the regular course of business. While the State is undoubtedly correct that medical
¶28 Moreover, as Hopkins notes, Young’s methodology of gathering K.R.’s medical history is potentially very significant. It may be that Hopkins could establish in cross-examination that Young may have used a suggestive interview method. Accordingly, without Young’s testimony to establish the reliability of the information gathered in the interview, the business records exception is not applicable. Where the preparation of a report requires the exercise of the declarant’s skill and discretion, the business record exception does not apply. In re Welfare of J.M.,
¶29 Even if the State had established the proper foundation for the business records exception, this report constituted testimonial hearsay and therefore was inadmissible under Crawford.
¶30 The Sixth Amendment prohibits the admission of testimonial hearsay statements in a criminal case without an opportunity for cross-examination. Crawford,
¶31 Because Young’s report is hearsay and Young did not testify, this issue turns on whether the statements were testimonial. The Crawford Court declined to define “testimonial statements” but did identify three examples of statements that are testimonial: (1) ex parte in-court testimony or its functional equivalent, i.e., affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that a declarant would reasonably expect to be used prosecu-torially; (2) extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; and (3) statements made under circumstances that would lead an objective witness reasonably to believe that the statements would be available for use at a later trial. Crawford,
¶32 Here, Young created her report under circumstances that would lead an objective witness to believe that the statements would be available for use at a later trial. Under
Copies [of the report] also may have been mailed to other agencies involved, such as law enforcement, Child Protective Services, family physician, guardian ad litem, or attorney. . . .
A patient may have video-colposcopic film on file, which can be reproduced if those findings are pertinent to legal proceedings. If the patient was interviewed as part of their medical care and made a disclosure about an abuse, an audiotape will be on file and can be provided upon request,
ASCP (Nov. 3, 2005) at 1. As this letter indicates, Young was aware that her report was relevant to the ongoing legal investigation and could be used prosecutorially, falling under at least one Crawford definition. Crawford,
¶33 Young’s report was the functional equivalent of testimony and therefore testimonial. Young intended her report to be a formal statement for use in court. The trial court therefore erred in allowing Dr. Hall to relate Young’s report to the jury in violation of Hopkins’s confrontation rights. Hopkins should have had the opportunity to cross-examine Young about the report.
¶34 But the error was harmless. When an error, such as improperly admitted hearsay evidence, deprives the defendant of the right to confrontation, the State must show that the error was harmless beyond a reasonable doubt. State v. Powell,
¶35 Here, excluding Dr. Hall’s testimony, there is overwhelming evidence of guilt to support these convictions. K.R. testified at length about the sexual contacts between Hopkins and herself. Hopkins wrote a detailed confession admitting to several instances of inappropriate sexual contact, including oral sex. KR.’s younger sister testified that she overheard Hopkins and K.R. kissing on one occasion. And K.R. wrote in her journal that she and Hopkins were in love and had kissed. These facts present overwhelming evidence of Hopkins’s guilt. Dr. Hall’s testimony added little because the physical exam found no evidence of sexual activity and because K.R. told the jury directly about her relationship with Hopkins, making Hall’s testimony duplicative. Therefore, any error in admitting Dr. Hall’s testimony was harmless beyond a reasonable doubt.
¶36 Affirmed.
Review denied at
Notes
Miranda v. Arizona,