State v. Jeffrey Moten

1232 15-7-7(a)(2)(ii) family they § with which have Af- to and bonded. pursuant

minated the record in (v), carefully reviewing no to at ter obligation was under DCYF case, we in family. perceive Pursu no error the trial tempt reunification § language of 15-7- interests” explicit justice’s ant “best determination. to Indeed, 7(b)(Z), is petition respondent the event a the fact that the “[i]n ](a)(2)(ii) to willing jeopardize safety filed the children’s pursuant [or] subdivision section, (a)(2)(v) depart of maintaining of this and welfare for the sake a in rea obligation engage no with Morales is relationship ment has evidence that reunify a preserve efforts to and is be able to unlikely sonable she squarely case family.” proper custody The instant falls for her care and children. statutory directive. See In re within that Conclusion C., 946 A.2d (R.I.

Natalya 203 n. 10 2008) (“It noted should be statu [the reasons, For the foregoing respon- tory requirement reasonable efforts to is denied. appeal dent-mother’s The de- encourage strengthen parental and re Family cree of terminating Court her termi prior filing be made a lationship parental rights papers is affirmed. of rights petition] does not parental nation of this case Family be remanded § filed 15- apply petitions to abuse under Court. 7-7(a)(2)(ii).”).

Best Interests of Children Family justice Court es Once proven state has a statu tablishes that the tory rela justification terminating the biological parent and

tionship between STATE 15-7-7(a)(2)(ii) (v), child, § he here still that “the interests must establish best outweigh of all other consider the child Jeffrey MOTEN. G., Dayvon In re 10 A.3d

ations.” (R.I.2010) In re Brook Ann (quoting No. 2008-51-C.A. R., (R.I.2010)). A.2d We of Rhode Island. cognizant significance are “ever severing parent the bond between May child,” resolutely appreciate also but “it interests of is in the best children nurturing a safe and environment live, In re grow.”

which to learn and (R.I.2010) D., Daniel L., (quoting In re Alexis A.2d (R.I.2009)). case,

In this found that it best interests the three respondent’s pa-

children to terminate because all three children rights rental with a living together preadoptive McSoley,

Jane M. Department of Attor- General, ney for State. Montecalvo,

Lara E. Office of the Public Defender, for Defendant. SUTTELL, C.J.,

Present: GOLDBERG, FLAHERTY, ROBINSON, INDEGLIA, JJ. OPINION ROBINSON, Justice for the Court. 5; 2006, On December a Providence County Family jury found the de- fendant, Moten, Jeffrey guilty first de- gree inflicting child abuse for bodi- serious ly injury daughter, Nashya on his infant ” trauma.’ Section 11—9— ‘abusive head trial May On Moten. 5.3(c)(4). twenty years, the defendant sentenced years two years to serve and eighteen with jury began on No- The defendant’s along with one probation, with suspended 30, Family in the vember Court.2 community service. hundred hours witnesses dur- called four prosecution The (1) Amie Costa ing its case-in-chief: contends that his defendant appeal, On (2) mother); Detective Arthur (Nashya’s both the Unit- under right to confrontation (the officer from the investigating Lee constitutions Rhode Island ed States and Providence Services Bureau of the Youth justice allowed violated when the was (3) Nancy Harper Department); Police out-of- testify regarding pediatrician a (the Nashya’s who treated in- pediatrician colleague of by made a court statements (an (4) Paul Renzi juries); and Detective a performed who ophthalmologist hers-an Police Depart- in the Providence officer injured infant. For retinal exam on the investigated apart- who Ms. Costa’s ment opinion, in this we reasons set forth incident). night During ment on the judgment of conviction. affirm testimony, Det. Lee also read into evi- his given by defendant dence two statements I police during investigation. The statements, that the stipulated defendant and Travel Facts 2, 24 and December taken on November 2005, voluntarily taken “freely were and with one charged state defendant The by the Defendant and executed given § to G.L.1956 11—9— felony pursuant count Finally, the Providence Police Station.” at 5.3(b)(1) injuries suf- in connection with stipu- read into evidence a prosecution 28, Nashya on November 2005.1 by fered Her- Christopher lated statement from a provides per- statute just-cited who eth—a friend of defendant stated degree of first child abuse guilty son is he had visited defendant on the afternoon “[wjhenever person having a care of a * * * of the incident. knowingly intentionally child * * * upon child serious [that] [i]nflicts in the As the trial noted course of bodily injury.” Id. The statute then de- judgment denying defendant’s motion being, inter bodily injury” fines “serious as “very little acquittal, the trial involved alia, “physical injury testimony”; [evi- added that disputed he hematoma, testimony intercranial “which charac- [have been] dences subdural was], hemorrhages [disputed3 frankly, as as some- hemorrhage retinal terized and/or minor.” Since defendant’s sole eon- baby syndrome’ what signs of ‘shaken and/or However, recognized since we have brevity, we hereinafter Court. 1. For the sake of shall generally applied on Novem- prior refer to what occurred version of the law 23, simply as “the incident.” charged by ber criminal defendants who 2006, prior July defendant information charged with child abuse 2. The defendant was Family gen Court. See properly tried § criminal infor- under G.L.1956 11-9-5.3 (R.I. Jennings, A.2d 171 erally State v. time, March 2006. At that mation on 2008). Family with ex- provided § 11-9-9 original jurisdiction over all offenses clusive appears actuality, "undisputed” 3.In the word that, July § forth in 11-9-5.3. We note set transcript. point in the It is clear from at this 3, 2006, Assembly General enacted two however, context, “disputed” what is P.L.2006, (viz., § 1 public ch. laws meant. P.L.2006, 1) ju- § which transferred ch. Superior of child abuse cases to risdiction appeal tention on deals with narrow issue Ms. then drove daughter Costa her regarding portion Harper’s Hospital. of Dr. testi- Hasbro Children’s mony, we shall reader with an given In a statement police testimony abbreviated rendition of the 12:40 a.m. on November defendant con- relayed by the and stipulated witnesses Nashya firmed that he was babysitting statements. when Ms. left for work previous Costa morning. Nashya He stated that he and Nashya Moten was born on June eventually nap together took a after Ms. 2005 to Ms. and defendant. The Costa that, Costa left. He added after sleeping charge events that led to the criminal in hours, for about up two he woke with a November case occurred on 23 of that stomachache and had to use the bathroom. year. day, Nashya same that just On was that, He stated while he inwas the bath- shy time, being five months old. At the room, around,” dogs he “heard the moving defendant, Costa, Nashya, Ms. and three and that he “told them go lay down.” dogs apartment lived in a rented in Provi- He added that he then daugh- “heard [his] dence. On the morning of November bed, ter fall down out of and she screamed Nashya apartment Ms. Costa left at the in like [he never heard her scream had] be- departed defendant’s care when she for fore.” The police defendant told the that that, work. Ms. Costa testified before she “picked he “ran to her” and up right her apartment, Nashya left the “just was coo- away” condition; in order to check on her noises, [her], ing looking at smiling at he said that Nashya did not any [her]”; fine”; Nashya’s “eyes were marks, bruises or nor was she bleeding. Nashya responsive and that was to sounds. He stated that he then “beat the dogs thought they because [he] knocked [Nash- Ms. Costa returned from work between ya] off of the According bed.” to defen- 3:30 and 3:45 that afternoon. When she statement, dant’s this all happened “20 arrived at apartment, she heard Nash- minutes before [Ms. came home.” Costa] ya making what she described at trial as a that, At Ms. Costa also testified when scream/cry.” “weird She picked up her work, she came home from defendant “told daughter and [Nashya’s] “noticed that dogs it.” [her] did eyes [upper were stuck right] corner of her moving, head not not following any Harper’s Testimony Doctor Nashya verbal sounds.” also did not re- Nancy Doctor Harper testified at trial spond to visual prompts. Ms. Costa fur- a fact both witness and as an expert ther testified daughter that her “just was witness in the pediatrics field of child and kind of lifeless.” She Nashya stated that pediatrics.4 child abuse really say “didn’t anything any- or do thing.” Ms. Nashya Costa added that Harper Doctor stated that she was a “just was doing that scream/cry.” weird pediatrician board-certified and fellow in The proceeded mother Nashya’s to call the Child Protection Program at Rhode pediatrician, who recommended that she Island Hospital. Harper Doctor on Nashya take to the hospital immediately. call on November night, That Harper's However, testimony 4. Doctor was not limited brains of children. since most of to the facts described in this section. For testimony her is not relevant to the narrow example, provided testimony she extensive re- presented appeal, issue on our rendition of garding diagnoses, symptoms, and causes Harper's testimony Dr. is limited. of various conditions that can affect done.” One of the to be need[ed] a resident a call from received she Harper she was contacted Dr. was an physicians her that room who emergency told call,” at the hos- whom she “ophthalmology an infant doctor worried” about “very “eyes straight [Nashya’s] examine (Nashya) whose asked “to come and pital The resident moving.” Harper Doctor eyes Harper].” and not upwards [Dr. “lethargic” Nashya was that she could not recall also stated testified suffering name, from “seizures to be and seemed but knew he ophthalmologist’s then Doctor and a headache.” duty.” ophthal- “a resident on at the emer- hospital, arriving went to the p.m.” arrived at “9 or 10 mologist p.m. approximately room at gency eye a “dilated exam.” Doctor performed Harper explained: arrived, she discussed When emergency with an Nashya’s condition physicians and other are “Pediatricians reviewed Nash- She then room resident. eyes. to look at the back of the trained scan, pediatric with a ya’s consulted course, CAT But, experts, we are not the spoke baby, examined the radiologist, why ophthalmology which is is contact- Harper became with Ms. Costa. Doctor eyes in her to dilate put drops ed. He she reviewed the concerned” when “quite they so can see the back of pupils scan, Nashya’s which from CAT images eye; they special use lens and brain, around the “too much fluid showed system they so can look at magnification for subdural hemor- concerning which is eye. the retina at the back of the He Additionally, Harper Dr. testified rhages.” completed the evaluation and came and to be “new blood” appeared that there reported talked with me and to me that * * around the brain. she had Costa, Ms. Dr. Har- interviewing When during Harper’s Dr. testi- point At this after Ms. Costa re- per became concerned an- mony, interrupted defense counsel her acting nor- baby “the wasn’t ported that by saying “Objection” challenge swer —a eyes” with the mally following and not immediately justice that the trial sustained home from work. when Ms. Costa came any prosecutor without discussion. The Nashya Harper stated that Doctor Harper questioning then continued injury to her brain” and signs “showed follows: “potentially life injuries these that a conversation with “Q: you Did threatening” just and “were not consistent as to his observa- ophthalmologist Harper injury.” an accidental Doctor with exam? tions of the results of this that, was a mandato- testified because she course, talking like with the just “A: Of neglect,5 of child abuse and she ry reporter all of the radiologist, we review tests Children, Department contacted on the children. performed that are evening report and Families that Youth you that. In oth- “Q: the incident. And did —strike cases, eye reviewed exams you’ve er that, in the Harper Doctor indicated correct? ophthalmologists, with treatment, “with spoke of her she course * * * “A: That is correct. to recommend other tests physicians * * * 40-ll-6(a) report the incident or provides § he or she shall 5. General Laws 1956 any physician report has cause to be made to the that cause a thereof to “[w]hen Children, brought him or suspect that a child or her [Department Youth and Fami- examination, care, coming him or her for lies].” treatment, neglected child is an abused or “Q: you need this information head trauma.” And do She stated that there was Nashya? medical, complete for a assessment of organic “no or other [etiology] for injuries injury.” her other than inflicted “A: Yes. Harper Nashya’s Doctor testified that in- “Q: you your And need it to further did juries not consistent with a fall “[were] the treatment of information for Nash- bed,” from a they “could not have ya, diagnosis? as well as dogs,” they been caused from the and that “A: Yes. were “not consistent with an accidental “Q: you. And did he tell what injury.” Objec- “DEFENDANT’S ATTORNEY:

tion. 5, 2006, jury On December found “THE Overruled. You COURT: guilty defendant was of first degree answer.” 9—5.3(b)(1). § child abuse under The 11— defendant then filed a motion for a new then testified Doctor justice which the trial denied on De- “that ophthalmologist Nashya told her had 10, 2007, cember May 2006. On hemorrhages extensive retinal that cov- twenty sentenced defendant to eye.” ered the entire back of the years, eighteen years with to serve and ophthalmologist also told Dr. years suspended two with probation, along Nashya large hemorrhage had “a which community with one hundred hours of ser- covering was obscuring or the macular in vice. timely The defendant filed a notice right eye,” her which is “the area where of appeal. you get your best vision.”

Doctor testified the same exam was the next repeated morning and II on several other occasions “in the weeks Appeal Issue on and months to come” for the following reason: appeal, On defendant contends that you hemorrhages “[0]nce right his constitutional of confrontation eye, keep you it can from seeing well. during Harper’s was violated Dr. testimo well, if you And can’t see and when ny. Specifically, argues defendant you’re young trying develop your to the statements the ophthalmolo made vision, it permanent can cause difficul- gist Dr. Harper regarding Nashya’s to re * * So, ties *. You even go blind. tinal hemorrhaging6 were “testimonial evi there grave you are concerns once see dence” Washington, under v. 541 Crawford injuries eye. these to the back of the 36, 1354, U.S. 158 L.Ed.2d 177 You have closely to follow them and to (2004). Court, In his brief to this defen make sure that clearly she sees and to dant (quoting Washington, Davis v. 547 baby make sure that the doesn’t need 813, 822, 165 L.Ed.2d surgery eye. on the concerning It’s a (2006)) 224 ophthalmol maintains point.” ogist made these statements with the “pri

Doctor Harper provide went on to mary purpose more ‘establishing] Nashya’s details about treatment proving] past potentially and con- events relevant ” dition, which was “consistent with abusive prosecution.’ later criminal The defen- Laws, 6. Under the General "retinal hemor- ditions that can the basis for a first " rhages” baby are syn- degree charge. evidence of ‘shaken child abuse See G.L.1956 drome’ § ‘abusive head trauma’ "—con- 11-9-5.3. and/or however, that defendant that, opinion, our failed the testimonial given contends dant confrontation statements, preserve right issue nature of review. testify appellate for allowed not have been should be- diagnosis ophthalmologist’s about long adhered This Court has opportuni- have an did defendant cause rule, to which pursuant or waive” “raise ophthalmologist. to cross-examine ty raised and “an issue that has not been previously prop at trial is not articulated III appellate review.” See erly preserved Review Standard (R.I. Gomez, v. 848 A.2d State 2004) (internal omitted); marks quotation claims on criminal defendant When a Figuereo, 31 A.3d evi- see also State the introduction of certain appeal (R.I.2011) (recognizing that of 1289 rights constitutional violated his dence cross-examination, “will not review issues that were not we Court confrontation pos the trial court in such a ruling presented in a de evidentiary an review such to alert the trial 943 A.2d ture as Lopez, State v. novo manner. (internal (R.I.2008); being quotation raised” question also State v. see omitted)). (R.I.2008) “staunchly We ad marks 949 A.2d

Barkmeyer, principle. (“This procedural to this Fi party’s here[]” de novo a reviews The rule is not guereo, has 31 A.3d at 1289. allegation that a constitutional arbitrary Kafka Quinlan, 921 “some sort of artificial or State v. infringed.”); been (R.I.2007) (“[I]n In esque hurdle.” DeMarco v. Travelers determining A.2d (R.I. Co., n. rights constitutional surance a defendant’s whether 2011). Instead, rule as an “im violated, serves this Court undertakes have been review.”). of fairness and efficien portant guarantor novo de

judicial Id.

cy process.” in the IV challenging In the context of evi

Analysis trial, repeatedly dence offered at we objection is not general cautioned that “a Sixth Amendment Unit The appellate for preserve article sec sufficient to an issue States Constitution and ed review; rather, of error must assignments tion of the Rhode Island Constitution particularity set forth with individuals accused of criminal be “guarantee sufficient to the basis justice’s call the trial attention right the to confront and cross- charges objection.” the Union Station Associ any testify adverse witnesses who examine (R.I.2004) Rossi, Albanese, 862 A.2d 970 ates v. against them.” State (internal (R.I.2009) added); also State v. quota (emphasis see A.2d Diefen (R.I.2009) (“When omitted). derfer, The sole tion marks defendant’s * * * quite consider defense counsel’s appeal on is that he was de we contention * * * utterances!,] it is clear right unspecific of con prived of his constitutional to raise that the issue that defendant seeks Specifically, argues he frontation. * * * preserved.”); not been appeal have allowed Dr. on has justice trial should not (R.I. Feliciano, A.2d made State v. testify about statements 2006) (“Our with abundant case law states ophthalmologist who treated Nash- by the preserved that were not clarity that issues ya night on the of the incident because specific objection sufficiently opportunity by have an defendant did not justice’s so as to call the ophthalmologist. It is cross-examine focused objection, the basis for said attention to where counsel “failed to articulate appeal.” (empha- not be on any considered objection” basis whatsoever for her added) (internal (internal omitted)). quotation sis marks omit- quotation marks ted)). objected, When defendant Dr. Harper was testify about regarding what argu-

The defendant contends that his ophthalmologist had told her on night regarding ment of confrontation of the incident.8 At an point earlier in Dr. preserved was when defense counsel said Harper’s testimony, objected defendant “Objection” as Dr. was about to during a similar line of questioning when testify regarding ophthalmologist what the prosecutor asked Dr. Harper about had told her. Defense counsel uttered information she had learned from another occasion, that word twice—on the first emergency room resident. When defen- sustained; objection time, the second instance, objected dant in that the trial instance, it was overruled. In neither justice held a sidebar conference during however, did defense counsel articulate the which there was a colloquy regarding Rule objection. basis for his Based on our well- 803(4) of the Rhode Island Rules of Evi- rule, objection settled “raise or waive” an dence—which sets forth the exception to explanation without pre- is insufficient to hearsay rule for “[statements made Feliciano, appeal. serve an issue on See purposes for (“General diagnosis medical or treat- 901 A.2d at 646 objections to the ment.” It would have evidence, entirely been rea- admissibility of when the context sonable for the trial justice to have in- does not supply specific ground for the ferred that defense objection, counsel had the preserve are thus insufficient to same issue.”). objection in mind when Dr. Harper was testify about to in a similar regard- fashion attempts defendant to save in- his ing her conversation with the ophthalmolo- objection sufficient appellate review by gist. contending that “it was clear that counsel objecting inability to his to confront The foundation prosecutor laid view, however, the doctor.” In our it is between defendant’s two objections bare equally plausible also strongly suggests that the state was —if more— prosecutor and the trial again understood seeking to avail itself hearsay objection 803(4). defendant’s to be hearsay exception set forth in Rule After Vieira, grounds.7 See State v. 38 A.3d defendant’s initial objection successful (R.I.2012) (rejecting appellant’s argu- testimony regarding the ophthalmolo- ment that grounds the for an unspecified gist’s findings, the prosecutor then asked objection were “clear from the context” Dr. if Harper the information provided by holding and that an argument was waived the ophthalmologist necessary “for the 45, hearsay objection (2d 7. A equivalent Cir.2003) is not to an F.3d (noting 60 that "a objection right based on the constitutional objection hearsay preserve would not in itself See, e.g., confront a witness. Cabrera-Beltran, United v. States claim”). a Confrontation Clause 742, (4th 660 F.3d 751 Cir. 2011) ("The hearsay objection at trial cannot question 8. The that objec- led to the second be understood to include a Confrontation tion reads as follows: Arbolaez, objection.”); Clause United States v. ' “Q: 1283, (11th And Cir.2006) ("A ophthalmologist] what did [the 450 F.3d 1291 n. 8 hearsay objection you. tell testimony at stand alone, ing preserve does not a Objection. constitutional “DEFENDANT’SATTORNEY: challenge under the Confrontation Clause for "THE COURT: Overruled.” appeal.”); Dukagjini, United v. States 326 1240 harmless, must be more than and the diag- error Nashya, as well as of

treatment added.) an implicate Har- must issue of consti- exception Doctor (Emphasis nosis.” clarification, a dimension derived from novel tutional ‘Tes.” After this per replied, reasonably Harper of law that could not again asked rule prosecutor ophthal- with the known to counsel at the time of trial.” her conversation been about Breen, (R.I.2001); 50, again objected, 767 A.2d 57 The defendant State v. mologist. Burke, 725, allowed Dr. justice the trial 731 this time see also State v. but (R.I.1987) (“[Wjhen just-summarized The intervening to answer. an deci- [Cjourt by prosecu- laid evidentiary foundation Supreme of this or of the sion in hearsay exception found tor tracked of the States establishes a Court United 803(4) hearsay exception (creating a doctrine, Rule fail- novel constitutional counsel’s “[sjtatements purposes made for the issue at trial will not ure to raise (empha- review.”). or treatment” diagnosis medical our We hold that this preclude added)). could have The defendant may sis invoked in exception narrow not be objection by articulating his clarified argument case because defendant’s he argument, but did to confrontation right not novel at the time Dr. not do so. testified. possible that defense may it be

While 8, 2004, the On March in Clause had the Confrontation counsel its decision in the United States issued mind, no reference to the same. he made Washington, v. 541 U.S. Crawford Further, prose- laid the foundation (2004). 158 L.Ed.2d 177 S.Ct. likely it is that both cutor shows the rule an- opinion abrogated Crawford justice the trial understood prosecutor Roberts, 448 v. U.S. nounced Ohio hearsay grounds. to be on objections his (1980), 65 L.Ed.2d 597 however, any journey into the Ultimately, previously pro- which was the decision counsel, prosecutor, defense mind of analytical framework for vided it speculation; amounts Amendment to confrontation. Sixth brings to the fore effort is a fruitless “an had stated that The Roberts' Court or waive” of the “raise very purpose out-of-court state- unavailable witness’s precisely why know shall never rule. We long as it has ment be admitted so objected question- to the line of defendant reliability i.e., falls adequate indicia of — a reason he never articulated ing because hearsay exception’ ‘firmly within a rooted Tinney Tinney, to the court. See ‘particularized guarantees or bears ” (R.I.2001) (noting that A.2d Crawford, See U.S. trustworthiness.’ “raise an issue party may not Roberts, (quoting at adequately raised be- appeal that was 2531). After review- the basis for the by presuming now low ing underpinnings the historical tailoring his ob- evidence’s admission Scalia, Clause, writ- Justice Confrontation basis”). The presumed de- jection to Crawford, described ing majority for the * * * adequately raise his con- failed to fendant so rule as a “framework the Roberts at trial. argument stitutional to mean- that it fails unpredictable confronta- from even core ingful protection however, over. is not inquiry, Our n 63, 2531. Id. at 100 S.Ct. tion violations.” exception” a “narrow recognized We have recognized v. The Court waive” rule. State the “raise or Crawford (R.I.2011). categorical “replaced] Dennis, 445, the Roberts rule 449-50 29 A.3d open-ended guarantees with constitutional apply, alleged “the exception For the

1241 tests,” would balancing charged drug which “do violence with a offense challenged Crawford, 541 at affidavits design.” provided by analysts to their U.S. at a state 67-68, In laboratory. 124 1354. order to main The affidavits S.Ct. included foren integrity analysis, they tain the of the Sixth Amend sic stated that the sub guarantee, adopted ment’s a new stance seized police connection Crawford analytical employed with approach alleged be with the defendant’s crime was respect evidentiary challenges Supreme based cocaine. The Court held that the upon the “Where examples Confrontation Clause: affidavits were of “testimonial * * * issue, testimonial is at Crawford, evidence evidence” under recognizing Sixth what the Amendment demands com the sworn statements were “made mon law required: unavailability and a under which circumstances would lead an prior opportunity objective for cross-examination.” reasonably witness to believe 68, Crawford, 541 at 124 U.S. S.Ct. 1354. that the statement would be available for recognized Melendez-Diaz, The Court that its decision did use at a later trial.” 311, not “articulate a comprehensive definition” U.S. at (quoting 129 S.Ct. 2527 Craw 10, 1354). ford, “testimonial.” Id. 68 n. 124 S.Ct. 541 U.S. at S.Ct. did, however, 1354. It recognize a “core Bullcoming involved a similar situation. class” of testimonial statements. Id. at case, In that the defendant was convicted 51-52, 124 S.Ct. of aggravated driving while intoxicated. trial, The Supreme Court has stated that prosecution At introduced a certi- announced a new rule” of con fied report blood alcohol concentration into “Crawford However, stitutional law. v. Bockting, Whorton 549 evidence. it did so through the 406, 416, 1173, testimony analyst L.Ed.2d of an who had not con- (2007): Harris, State analysis. ducted the actual forensic cf. (R.I.2005) n. 12 (noting that Supreme “surrogate Court held such * * * probably testimony constitutes a novel is does not meet the consti- “Crawford law”). However, sue of defendant does requirement” tutional of the Sixth Amend- not contend that decision Bullcoming, ment. 131 S.Ct. at 2710. Crawford pursu constitutes the sort of “novel rule” The decision reiterated that the “accused’s ant to which the narrow exception is to be confronted with the analyst “raise or certification, waive” rule be invoked. who made the unless that an- he; Nor could alyst was decided on is unavailable at and the ac- Crawford March 2004—more than two-and-a-half cused had an opportunity, pretrial, years before Dr. Harper gave her testimo particular cross-examine that scientist.” ny. Id.

Instead, argues defendant two Both Bullcoming and Melendez-Diaz cases viz., decided after merely apply Melen the rule announced in Craw- Crawford — Massachusetts, Therefore, dez-Diaz v. 557 U.S. those cases cannot be ford. (2009) 174 L.Ed.2d 314 considered to have established “novel — Mexico, U.S. -, Bullcoming v. New constitutional rule.” See Butler v. Curry, (2011)— (9th Cir.2008) (“[W]hen 180 L.Ed.2d 610 528 F.3d serve as “intervening of general applied decision[s] rule must be in a new situation, Court of the United States hardly thought it can be to have a novel principle [that] establish[] constitutional created a new of constitutional * * Burke, (internal omitted)). doctrine *.” See 522 A.2d at law.” quotation marks Melendez-Diaz, 731. In a defendant was the case that breathed new Crawford Indeed, would be limited. The announced so Clause. into the Confrontation life “[vjarious formula opinion rule based on a included a broad announced Court what the a “core guarantee[ tions” of Court called ]”: constitutional “categorical issue, evidence is at of testimonial statements. Craw testimonial class” “Where * * * demands Sixth Amendment at 124 S.Ct. 1354. In ford, required: law unavaila among the common cluded those formulations what opportunity for bility prior and a cross- that were made under circum “statements at Crawford, 541 U.S. objective examination.” which would lead an wit stances reasonably S.Ct. to believe that the state ness at a later ment would be available for use Certainly, at the time of defen Crawford, at trial.” 541 U.S. S.Ct. Supreme Court had not dant’s brief to this 1354. The defendant’s precise contours of what is established argument category, noting on this bases its “testimonial evidence.” and what is not objective that “an witness reason [would] mean, however, that each not That does * * * ably believe that the resident’s applying case Supreme Court Crawford statements would be available for use at a constitutional rule.” announces “a novel However, conceptual later trial.” basis was established at the principle The basic laid in precise argument for that if published: when moment Crawford in Melendez-Diaz or Bull- Crawford—not introduce evidence of seeks to prosecutor coming. where the defen testimonial statements cross- opportunity not have an dant did appears defendant conflate declarant, the has a examine the defendant concept of “a novel constitutional rule” Amend objecting under Sixth basis an established constitutional rule that with in both Notably, ment. the defendants pattern. to a novel fact For applied is Bullcoming were suf Melendez-Diaz and example, argues defendant that “Melen- ficiently principle aware of the established time that the dez-Diaz was first Craw- grounds at object on those Crawford applied line of had been case[s] ford Bullcoming, 131 at 2712 trial. See S.Ct. previously what had been considered ‘neu- (“Without Caylor’s testimony, defense subject tral’ scientific evidence maintained, introduction of the an counsel clause.” That well be confrontation Bullcoming’s violate alyst’s finding would true, application but the new did not ex- to be confronted Sixth Amendment principle or otherwise alter the basic pand (internal him.” against with the witnesses was announced in The ma- Crawford. omitted)); marks Melendez- quotation jority opinion explicitly in Melendez-Diaz (“Pe Diaz, at 557 U.S. noted that the decision in that case consti- objected titioner to the admission of the application straightforward tuted a “rather certificates, asserting that our Confronta holding in Court’s] Craw- [the tion decision Clause Crawford Melendez-Diaz, 557 U.S. ford.” testify in required analysts per 129 S.Ct. 2527. Other courts similar- son.”). nothing did ly stated Melendez-Diaz might apply than to a different Bullcoming or Melendez-Diaz more Crawford surely scenario that does a novel constitutional rule set of facts—a have established constitutional rule.” only if had announced that state- not constitute “a novel Crawford Webb, See, e.g., Peak v. 673 F.3d police made to constituted “testimo- ments Cir.2012) (6th (noting that Melendez-Diaz But contained nial” statements. Crawford interpreta- or novel it “did not a new principle which suggestion no

1243 FLAHERTY, INDEGLIA, J„ Clause”); J., and Hatley tion of the Confrontation State, 67, 480, concurring 722 S.E.2d in the dissenting part v. 290 Ga. 70 and (2012) (“Some Clause result. of the Confrontation by were left unanswered issues Crawford Hindsight always twenty-twenty is —es Melendez-Diaz.”)-, State v. clarified in pecially when afforded benefit of al Sorensen, 814 N.W.2d Neb. years clarifying most seven of United (2012) (“The subsequently clari Court jurisprudence. Af Supreme States Court in Melen meaning fied the of ‘testimonial’ ter a careful review of v. Wash Crawford dez-Diaz v. and Bullcom Massachusetts ington, 541 Mexico.”); State v. ing Kennedy, v. New (2004), progeny, L.Ed.2d 177 its we S.E.2d 926 n. W.Va. respectfully have concluded that we must (2012) Melendez-Diaz (“Bullcoming [and] separately. write * * * merely clarify apply Crawford’s * * majori- We are with the agree unable to *.”). principles that, ty’s by failing conclusion to raise a exception” “narrow specific objection under the Confrontation applies “raise or to novel waive” rule con testimony presented Clause to certain stitutional rules. It not available when is trial, argument Moten has waived on a familiar applies Court con appeal.9 In our opinion, objection Moten’s pattern. stitutional rule novel fact If to a under the Confrontation Clause was novel standard, virtually that were the then ev at the time Dr. testified to the out- ery of the Supreme constitutional decision of-court ophthal- statements made oppor Court would an defendants mologist regarding a retinal examination tunity advantage exception. to take performed had ophthalmologist on nothing There “narrow” would be about Therefore, injured this Court .infant. outcome, such an would that nor outcome should have merits of reached the whether purpose

further the rule’s of “fairness and these out-of-court statements testi- efficiency judicial process.” in the See De Although monial in nature. we ultimately Marco, 26 n. 55. A.3d at 628 Because the conclude that those statements were non- argument defendant’s is on a based consti that, therefore, testimonial and their ad- tutional rule that not novel at the time mission did not violate Moten’s objection of his the defendant’s bare confrontation, agree we cannot with the exception does not fit within the narrow to majority that failure to Moten’s articulate “raise or our waive” rule. the Confrontation as the basis for Clause objection his portion to that of Dr. Har- Y per’s him testimony precludes raising from Conclusion argument Court appeal. before this on For the in this opinion, reasons set forth Preservation Error Family judgment we affirm the Court’s out, majority points conviction. The record this case be As the this Court recognizes exception returned to that tribunal. narrow our well- object day 9. Moten did admission of this the decision to "whether a defendant’s testimony on what could have been under- objection to a statement unsuccessful on hear hearsay grounds, stood to be which the trial say grounds preserved alone would noteworthy overruled. It that in is appeal.” issue for review State Crawford just decision issued the trial in before this Harris, (R.I.2005). 345 n. 11 commenced, case left for another 1244 * * * was [we]re waive” rule. For that dant cocaine ‘testimoni- “raise or

settled al,’ alleged rendering must the affiants apply, [thereby] “the error ‘wit- exception harmless, and exception the subject be more than nesses’ to the defendant’s of issue of implicate an constitutional must under the Sixth confrontation Amend- from a rule of law derived novel dimension ment.” The held that the Court admission reasonably have been known not that could of those affidavits violated the defendant’s v. at the time trial.” State counsel right of confrontation because the affiants (R.I.2001). Breen, 50, 57 were available for cross-examination. 311, at In so holding, Id. 129 S.Ct. 2527. that, “[cjertainly, majority concedes the Court reasoned that the affidavits trial, at the [United the time of defendant’s under circumstances “made which had not established Supreme Court States] objective would lead an witness reasonably of what the contours is and what is precise ” to believe that the statement would be fact, evidence.’ In not ‘testimonial * * available use at a later trial explicitly acknowledged Court Crawford Id. comprehen- to articulate a that it declined “testimonial,” the term sive definition of Although the stated that its Court hold day leave for explaining: another “[w]e ing little more than the applica “involvefd] any spell comprehensive out effort in holding Crawford,” tion of in reali [the] ” Crawford, of ‘testimonial.’ definition ty, in pivotal Melendez-Diaz was Sixth 68, at 124 S.Ct. 1354.10 It was not U.S. Amendment jurisprudence. Melendez- three-and-one-half approximately until Diaz, 329, at 129 S.Ct. U.S. 2527. In years place Moten’s took after which wake, little judges its could do more 2006, Supreme in United States “guess than what future rules th[e] Court beyond moved the realm of interro- sparse distill from the w[ould] constitution gation and considered whether forensic al text” of the Amendment. Sixth Melen much more akin to analyses —statements dez-Diaz, ophthalmologist’s out-of-court state- J., Indeed, (Kennedy, dissenting). one made to Dr. testimo- ments —were decided, after year Melendez-Diaz and, thus, subject in nature to exclu- nial Supreme Judicial Court Massachusetts sion under the Confrontation Clause. See observed that the scope Confronta Massachusetts, Melendez-Diaz v. 557 U.S. tion Clause remained “unsettled” and that 305, 311, 129 174 L.Ed.2d 314 S.Ct. “was, remained], reach Crawford’s (2009). vigorously debated.” Commonwealth Melendez-Diaz, Indeed, in 557 U.S. at Vasquez, 456 Mass. 923 N.E.2d 307, 129 Supreme S.Ct. 2527 Court was 532(2010). agree. We identify time to whether asked for first years Two after the decision reporting “affidavits results of forensic Melen- dez-Diaz, States analysis which showed material seized United Mexico, connected v. New police Bullcoming to the defen- Court decided question describing-the merely is no er than term There "testimo- Crawford a "core class Court identified of 'testimonial example nial statement” catchall its statements,'" including extrajudicial state under “statements that were made circum- affidavits, depositions, prior ments such objective stances which would lead an witness testimony, and confession. v. Wash reasonably Crawford to believe statement 36, 51-52, ington, 541 U.S. be at a later would available for use trial.” (2004). However, the clos 158 L.Ed.2d 177 Id. at 124 S.Ct. 1354. actually defining est the Court came —rath- — U.S. -, to police L.Ed.2d statements made officers—de- (2011). There, have reasonably to fense counsel could known the Court was asked that the of Amendment al admission out-of-court state- address whether the Sixth by one testimony ments made doctor to another re- analyst of an lowed “the in-court garding eye the results of a retinal exami- certifica sign who did not [a testimonial] might nation potentially violate Moten’s laboratory report tion a forensic con [of that, right of confrontation. We conclude cerning the blood alcohol concentration of if clearly even those cases did not an- personally perform or or the defendant] (cid:127) law, they nounce novel rules of certainly of performance observe the the test re employed applications novel to an unset- Bullcoming, in the certification.” ported reading tled rule of law. In the holdings holding at 2713. In that Bullcoming of Melendez-Diaz defendant had a to confront the ana applications Crawford, majori- mere of lyst actually report, who certified that ty, in our opinion, sufficiently does not Melendez-Diaz, cited Court U.S. appreciate that both of those cases sub- 319-26, support 129 S.Ct. 2527 for that stantially expanded scope of the Con- analyst’s prepared certification “[a]n frontation Clause. investigation connection with a criminal ‘testimonial,’ prosecution is Today, easy it is compe- conclude that compass therefore within the of the Con objec- tent defense counsel would an raise Bullcoming, frontation Clause.” tion under the Confrontation Clause at 2713-14. The Court described its deci disputed portion Dr. Harper’s of testimo- “in controlling precedent,” sion as line with ny, say but we cannot that Moten’s counsel 2713; however, id. at the dissent main reasonably should have known that tained, view, correctly in our that “[t]he objection prudent would have been at the persistent ambiguities ap in the Court’s Breen, time of his trial. See 767 A.2d at proach symptomatic are of a rule not ame Although reasonably it cannot be dis- applications.” nable to sensible Id. at 2726 puted exception to our “raise or J., (Kennedy, one, dissenting). waive” rule is indeed narrow we maintain that the majority effectively Similarly, when Moten was tried in reads this exception jurispru- out of our provided this had guidance little dence. The line between a novel rule of the application of In State v. Crawford. law application and the of a rule of in a law Feliciano, (R.I.2006)— 901 A.2d new context blurry, can sometimes be if decided a five prior mere months to Mo- indistinguishable. acknowledge We ten’s trial —this Court stated: leave “[W]e call, that this is a close but we cannot fault day for another of fleshing chore out defense counsel for his failure to forecast the extent to which the [United States] application to the facts at issue. Crawford’s Supreme Court’s elucidation of the Con- we Accordingly, respectfully suggest frontation Clause otherwise affects our majority should have addressed the subject, case law on the if at all.” See also Confrontation Clause issue as it relates to Harris, State v. 345 n. 12 disputed portion of Dr. Harper’s testi- (R.I.2005) (“[T]he meaning of term th[e] mony to determine whether the trial jus- day will one have to be [testimonial] more tice in admitting testimony. erred this courts.”). precisely by defined Application “Primary of the so, And we are now left to consider Purpose” Test whether, at the time of Moten’s trial— years before Melendez-Diaz and Bullcom- We now turn to the merits of Moten’s ing applied beyond reach Confrontation Our in- challenge. Clause Crawford’s state and the the encounter occurs out-of-court which on whether the focuses

quiry Michi parties.” ophthalmologist made ments and actions statements — -, of a concerning the results Bryant, gan baby (2011). on the performed eye retinal test If 179 L.Ed.2d Contending in nature. testimonial were ophthalmologist’s reveals that the inquiry testimonial, statements those primary made for the statements were error to the admission Moten ascribes guilt particu “purpose proving counters that testimony. The state pro trial” or “to defendant at lar criminal violate Moten’s did not those statements trial,” for use at a solemn declaration vide confrontation, Harper because Dr. of implicate would Con those statements medical to her own essentially testified Illinois, v. frontation Clause. Williams subject was to cross- and she opinions - 2221, 2243, -, above, guidance noted As we examination. (2012) op.). (plurality L.Ed.2d 89 States from United statutorily obligated, Doctor less than clear. How- has been this issue 40-11-6,11 § G.L.1956 to re- pursuant to ever, law as best we can set forth the we neglect, abuse or as suspected child port applicable precedent. it from derive 11-9-5.3,12 § to in G.L.1956 defined ophthalmol- whether the determining In Children, Youth and Fami- Department of testimonial, we statements were ogist’s (DCYF) enforcement. Al- lies and law test. See primary purpose employ yet has not had the though this Court 813, 822, Washington, 547 U.S. Davis interplay be- opportunity to address (2006) 2266, 165 L.Ed.2d 224 statutory duty report a to and the tween (Statements the cir- “are testimonial when Clause, need not write we Confrontation objectively indicate that there cumstances * * * agree with other on a blank slate. We and that ongoing emergency, no is * * * that have held that a statuto- jurisdictions is to estab- primary purpose the[ir] necessarily ren- ry duty report does not rele- prove past potentially or events lish a testimonial under der statement In so prosecution.”). vant to later criminal See, Seely v. e.g., “the circumstances in Confrontation Clause. doing, we look to case, guilty was found of provides, § 12. In this Moten 1956 40-11-6 11. General Laws § degree G.L.1956 11- child abuse under first 9-5.3(b)(1), pertinent part: provides, pertinent part: which "(a) any duly physician When or certified “(b) having person care of a Whenever a registered practitioner has cause to nurse child, 40-11-2(2) by § [as defined ‘a as brought suspect to him or her that a child (18)’], age eighteen person of under the examination, coming or to him or her for voluntarily or because of whether assumed care, treatment, neglect- is an abused or or legal obligation, including any instance chapter, he ed child as defined in this by placed been his or her where a child has report the incident or cause a or she shall caretaker, govern- parents, or licensed or report [DCYF] thereof to be made to as agency placement for care or mental child (b). treatment, provided in knowingly intentionally: subsection or "(b) "(1) report bodily upon immediate oral shall be a child serious An Inflicts otherwise, degree injury, guilty first child by telephone shall be made to both the abuse.” agency, department and law enforcement 11-9-5.3(c) bodily "serious Section defines by report, in writ- and shall be followed physical injury that: injury,” to include ing, department and law enforcement hematoma, "(4) in- Evidences subdural agency explaining the extent and nature of hemorrhage retinal he- tercranial and/or alleged neglect the child is the abuse or signs baby syn- morrhages of ‘shaken have suffered.” ” head trauma.’ 'abusive drome’ and/or State, 373 Ark. 282 S.W.3d 788 dence of retinal hemorrhages is delineated (2008) (holding duty by that a social worker’s way statute as one to demonstrate not, itself, report bodily injury, child abuse did serious establishing thus degree render the child victim’s statements testi- first child abuse—it seems clear monial); Spencer, State v. 339 Mont. that Dr. would have anticipated (2007) (holding gathered P.3d that a the information from the mandatory reporting statute was not “in- ophthalmologist might be used in a subse- 9—5.3(c)(4) deputize litany profes- § tended to quent prosecution. th[e] See 11— (defining sionals and individuals into “retinal hemorrhages” [listed therein] as one enforcement”). law The focus should re- bodily injury). form of serious It does not follow, surrounding however, main on the circumstances necessarily pri- the statement and mary purpose whether those circum- ophthalmologist’s objectively pri- stances indicate that provide statements evidence of mary purpose prove statement is to criminal conduct rather than to events relevant to criminal prosecution. medical Bryant, treatment. See 131 S.Ct. Melendez-Diaz, Moreover, See at 129 at 1157. there was no evidence (citing Crawford, S.Ct. 541 U.S. at Harper Dr. contacted the ophthalmol- 51-52, 1354). 124 S.Ct. In so doing, ogist we at specific request the of the police or must turn to the primary purpose of Dr. DCYF. Harper’s ophthalmol- consultation with the view, In our primary purpose the of the 1157; see, ogist. Bryant, See 131 S.Ct. at ophthalmologist’s examination was to de- Justus, e.g., State 205 S.W.3d 880 termine the injuries extent of the to the (Mo.2006) (holding that primary pur- the baby purpose for the of rendering medical pose an preserve interview was to testi- treatment. Doctor Harper testified that mony for a prosecution, later criminal she baby’s was concerned with the retinal thereby rendering the declarant’s state- bleeding, which could otherwise lead to testimonial; ments interviewer knew that Indeed, blindness if left untreated.13 she her “an interview was official interview stated that attending physician the per- done for law enforcement” and interviewee formed eye another examination on the

was aware that her statements could be baby very the morning next well as on —as defendant); used to prosecute the State v. several other occasions in the following Blue, (N.D.2006) 717 N.W.2d 564-65 weeks and months —because of the con- (holding that the declarant’s statements cern that retinal hemorrhages could dam- during an interview were testimonial be- Thus, age baby’s eyesight. even if it cause there “ongoing was no emergency” suspected was known or ophthal- that the primary and the purpose undoubtedly was mologist’s reports likely would be used in a trial). prepare future criminal the primary function

In light of Dr. Harper’s statutory report obli- of the was not to accuse “a targeted gation to contact DCYF—and because evi- engaging individual of in criminal con- Specifically, So, 13. go Dr. testified that even grave blind. there are con- you hemorrhages you eye, injuries “once have cerns once see it these keep you seeing can you from well. And if eye. back of the You have to follow them well, can’t you’re young see and when closely and to make sure that she sees vision, trying develop your it can cause clearly and to make baby sure that permanent something difficulties with surgery eye. doesn’t need on the It’s a amblyopia you called where can’t focus concerning point.’’ properly. cross-eyed. You look You with respectfully disagree we Although Williams, at or to duct,” 132 S.Ct. conclusion that Moten’s potentially majority’s events prove past “establish challenge was not Clause prosecution.” criminal Confrontation later relevant 2266; novel, majority should see and believe Davis, at 547 U.S. issue, 1154; Melendez- of this we at reached the merits Bryant, also our own review Diaz, ultimately conclude—after 557 U.S. purpose majority reached Rather, primary merits —that of the to resolve an report affirming judg- result ophthalmologist’s proper wit, conviction, dam- emergency the evidence medical because ongoing ment of —to poten- eye sight and was nontestimonial. baby’s age to offered pri- Because the of blindness. tial threat ophthalmologist’s

mary purpose emergency to resolve statements treatment, thereby medical proper with nontestimonial, the statements rendering did their admission would conclude we Clause. violate the Confrontation

Case Details

Case Name: State v. Jeffrey Moten

Court Name: Supreme Court of Rhode Island

Date Published: May 17, 2013

Citation: 64 A.3d 1232

Docket Number: 2008-51-C.A.

Court Abbreviation: R.I.