Lead Opinion
OPINION
for the Court.
On December 5; 2006, a Providence County Family Court jury found the defendant, Jeffrey Moten, guilty of first degree child abuse for inflicting serious bodily injury on his infant daughter, Nashya
On appeal, defendant contends that his right to confrontation under both the United States and Rhode Island constitutions was violated when the trial justice allowed a pediatrician to testify regarding out-of-court statements made by a colleague of hers-an ophthalmologist who performed a retinal exam on the injured infant. For the reasons set forth in this opinion, we affirm the judgment of conviction.
I
Facts and Travel
The state charged defendant with one felony count pursuant to G.L.1956 § 11 — 9— 5.3(b)(1) in connection with injuries suffered by Nashya on November 28, 2005.
The defendant’s jury trial began on November 30, 2006 in the Family Court.
As the trial justice noted in the course of denying defendant’s motion for judgment of acquittal, the trial involved “very little disputed testimony”; he added that the testimony “which may [have been] characterized as [disputed
Nashya Moten was born on June 30, 2005 to Ms. Costa and defendant. The events that led to the criminal charge in this case occurred on November 23 of that same year. On that day, Nashya was just shy of being five months old. At the time, defendant, Ms. Costa, Nashya, and three dogs lived in a rented apartment in Providence. On the morning of November 23, Ms. Costa left Nashya at the apartment in defendant’s care when she departed for work. Ms. Costa testified that, before she left the apartment, Nashya was “just cooing noises, looking at [her], smiling at [her]”; that Nashya’s “eyes were fine”; and that Nashya was responsive to sounds.
Ms. Costa returned from work between 3:30 and 3:45 that afternoon. When she arrived at the apartment, she heard Nash-ya making what she described at trial as a “weird scream/cry.” She picked up her daughter and “noticed that [Nashya’s] eyes were stuck in the [upper right] corner of her head not moving, not following any verbal sounds.” Nashya also did not respond to visual prompts. Ms. Costa further testified that her daughter was “just kind of lifeless.” She stated that Nashya “didn’t really say anything or do anything.” Ms. Costa added that Nashya “just was doing that weird scream/cry.” The mother proceeded to call Nashya’s pediatrician, who recommended that she take Nashya to the hospital immediately. Ms. Costa then drove her daughter to Hasbro Children’s Hospital.
In a statement given to the police at 12:40 a.m. on November 24, defendant confirmed that he was babysitting Nashya when Ms. Costa left for work the previous morning. He stated that he and Nashya eventually took a nap together after Ms. Costa left. He added that, after sleeping for about two hours, he woke up with a stomachache and had to use the bathroom. He stated that, while he was in the bathroom, he “heard the dogs moving around,” and that he “told them to go lay down.” He added that he then “heard [his] daughter fall down out of bed, and she screamed like [he had] never heard her scream before.” The defendant told the police that he “ran to her” and “picked her up right away” in order to check on her condition; he said that Nashya did not have any bruises or marks, nor was she bleeding. He stated that he then “beat the dogs because [he] thought they knocked [Nash-ya] off of the bed.” According to defendant’s statement, this all happened “20 minutes before [Ms. Costa] came home.” At trial, Ms. Costa also testified that, when she came home from work, defendant “told [her] that the dogs did it.”
Doctor Harper’s Testimony
Doctor Nancy Harper testified at trial as both a fact witness and as an expert witness in the field of child pediatrics and child abuse pediatrics.
Doctor Harper stated that she was a board-certified pediatrician and a fellow in the Child Protection Program at Rhode Island Hospital. Doctor Harper was on call on November 23, 2005. That night,
When Dr. Harper arrived, she discussed Nashya’s condition with an emergency room resident. She then reviewed Nash-ya’s CAT scan, consulted with a pediatric radiologist, examined the baby, and spoke with Ms. Costa. Doctor Harper became “quite concerned” when she reviewed the images from Nashya’s CAT scan, which showed “too much fluid around the brain, which is concerning for subdural hemorrhages.” Additionally, Dr. Harper testified that there appeared to be “new blood” around the brain.
When interviewing Ms. Costa, Dr. Harper became concerned after Ms. Costa reported that “the baby wasn’t acting normally and not following with the eyes” when Ms. Costa came home from work. Doctor Harper stated that Nashya “showed signs of injury to her brain” and that these injuries were “potentially life threatening” and “were just not consistent with an accidental injury.” Doctor Harper testified that, because she was a mandatory reporter of child abuse and neglect,
Doctor Harper indicated that, in the course of her treatment, she spoke “with physicians * * * to recommend other tests that need[ed] to be done.” One of the physicians contacted by Dr. Harper was an “ophthalmology doctor on call,” whom she asked “to come and examine [Nashya’s] eyes for [Dr. Harper].” Doctor Harper testified that she could not recall the ophthalmologist’s name, but knew that he was “a resident on duty.” The ophthalmologist arrived at “9 or 10 p.m.” and performed a “dilated eye exam.” Doctor Harper explained:
“Pediatricians and other physicians are trained to look at the back of the eyes. But, of course, we are not the experts, which is why ophthalmology is contacted. He put drops in her eyes to dilate the pupils so they can see the back of the eye; and they use a special lens and magnification system so they can look at the retina at the back of the eye. He completed the evaluation and came and talked with me and reported to me that she had * *
At this point during Dr. Harper’s testimony, defense counsel interrupted her answer by saying “Objection” — a challenge that the trial justice immediately sustained without any discussion. The prosecutor then continued questioning Dr. Harper as follows:
“Q: Did you have a conversation with this ophthalmologist as to his observations of the results of this exam?
“A: Of course, just like talking with the radiologist, we review all of the tests that are performed on the children.
“Q: And did you — strike that. In other cases, you’ve reviewed eye exams with ophthalmologists, correct?
“A: That is correct.
*1237 “Q: And do you need this information for a complete assessment of Nashya?
“A: Yes.
“Q: And did you need it to further your information for the treatment of Nash-ya, as well as the diagnosis?
“A: Yes.
“Q: And what did he tell you. “DEFENDANT’S ATTORNEY: Objection.
“THE COURT: Overruled. You may answer.”
Doctor Harper then testified that the ophthalmologist told her “that Nashya had extensive retinal hemorrhages that covered the entire back of the eye.” The ophthalmologist also told Dr. Harper that Nashya had “a large hemorrhage which was obscuring or covering the macular in her right eye,” which is “the area where you get your best vision.”
Doctor Harper testified that the same exam was repeated the next morning and on several other occasions “in the weeks and months to come” for the following reason:
“[0]nce you have hemorrhages in the eye, it can keep you from seeing well. And if you can’t see well, and when you’re young and trying to develop your vision, it can cause permanent difficulties * * *. You may even go blind. So, there are grave concerns once you see these injuries to the back of the eye. You have to follow them closely and to make sure that she sees clearly and to make sure that the baby doesn’t need surgery on the eye. It’s a concerning point.”
Doctor Harper went on to provide more details about Nashya’s treatment and condition, which was “consistent with abusive head trauma.” She stated that there was “no medical, organic or other [etiology] for her injuries other than inflicted injury.” Doctor Harper testified that Nashya’s injuries “[were] not consistent with a fall from a bed,” that they “could not have been caused from the dogs,” and that they were “not consistent with an accidental injury.”
On December 5, 2006, the jury found that defendant was guilty of first degree child abuse under § 11 — 9—5.3(b)(1). The defendant then filed a motion for a new trial, which the trial justice denied on December 18, 2006. On May 10, 2007, the trial justice sentenced defendant to twenty years, with eighteen years to serve and two years suspended with probation, along with one hundred hours of community service. The defendant filed a timely notice of appeal.
II
Issue on Appeal
On appeal, defendant contends that his constitutional right of confrontation was violated during Dr. Harper’s testimony. Specifically, defendant argues that the statements made by the ophthalmologist to Dr. Harper regarding Nashya’s retinal hemorrhaging
III
Standard of Review
When a criminal defendant claims on appeal that the introduction of certain evidence violated his constitutional rights of confrontation and cross-examination, we review such an evidentiary ruling in a de novo manner. State v. Lopez,
IV
Analysis
The Sixth Amendment to the United States Constitution and article 1, section 10, of the Rhode Island Constitution “guarantee individuals accused of criminal charges the right to confront and cross-examine any adverse witnesses who testify against them.” State v. Albanese,
This Court has long adhered to the “raise or waive” rule, pursuant to which “an issue that has not been raised and articulated previously at trial is not properly preserved for appellate review.” See State v. Gomez,
In the context of challenging evidence offered at trial, we have repeatedly cautioned that “a general objection is not sufficient to preserve an issue for appellate review; rather, assignments of error must be set forth with sufficient particularity to call the trial justice’s attention to the basis of the objection.” Union Station Associates v. Rossi,
The defendant contends that his argument regarding the right of confrontation was preserved when defense counsel said “Objection” as Dr. Harper was about to testify regarding what the ophthalmologist had told her. Defense counsel uttered that word twice — on the first occasion, the objection was sustained; the second time, it was overruled. In neither instance, however, did defense counsel articulate the basis for his objection. Based on our well-settled “raise or waive” rule, an objection without explanation is insufficient to preserve an issue on appeal. See Feliciano,
The defendant attempts to save his insufficient objection for appellate review by contending that “it was clear that counsel was objecting to his inability to confront the doctor.” In our view, however, it is equally — if not more — plausible that the prosecutor and the trial justice understood defendant’s objection to be on hearsay grounds.
The foundation laid by the prosecutor in between defendant’s two bare objections also strongly suggests that the state was again seeking to avail itself of the hearsay exception set forth in Rule 803(4). After defendant’s initial successful objection to the testimony regarding the ophthalmologist’s findings, the prosecutor then asked Dr. Harper if the information provided by the ophthalmologist was necessary “for the
While it may be possible that defense counsel had the Confrontation Clause in mind, he made no reference to the same. Further, the foundation laid by the prosecutor shows that it is likely that both the prosecutor and the trial justice understood his objections to be on hearsay grounds. Ultimately, however, any journey into the mind of defense counsel, the prosecutor, or the trial justice amounts to speculation; it is a fruitless effort that brings to the fore the very purpose of the “raise or waive” rule. We shall never know precisely why defendant objected to the line of questioning because he never articulated a reason to the court. See Tinney v. Tinney,
Our inquiry, however, is not over. We have recognized a “narrow exception” to the “raise or waive” rule. State v. Dennis,
On March 8, 2004, the Supreme Court of the United States issued its decision in Crawford v. Washington,
The Court in Crawford recognized that the Roberts rule “replaced] categorical constitutional guarantees with open-ended
The Supreme Court has stated that “Crawford announced a new rule” of constitutional law. Whorton v. Bockting,
Instead, defendant argues that two cases decided after Crawford — viz., Melendez-Diaz v. Massachusetts,
Bullcoming involved a similar situation. In that case, the defendant was convicted of aggravated driving while intoxicated. At trial, the prosecution introduced a certified blood alcohol concentration report into evidence. However, it did so through the testimony of an analyst who had not conducted the actual forensic analysis. The Supreme Court held that such “surrogate testimony * * * does not meet the constitutional requirement” of the Sixth Amendment. Bullcoming,
Both Bullcoming and Melendez-Diaz merely apply the rule announced in Crawford. Therefore, those cases cannot be considered to have established a “novel constitutional rule.” See Butler v. Curry,
Certainly, at the time of defendant’s trial, the Supreme Court had not established the precise contours of what is and what is not “testimonial evidence.” That does not mean, however, that each Supreme Court case applying Crawford announces “a novel constitutional rule.” The basic principle was established at the moment when Crawford was published: if a prosecutor seeks to introduce evidence of testimonial statements where the defendant did not have an opportunity to cross-examine the declarant, the defendant has a basis for objecting under the Sixth Amendment. Notably, the defendants in both Melendez-Diaz and Bullcoming were sufficiently aware of the principle established by Crawford to object on those grounds at trial. See Bullcoming,
Bullcoming or Melendez-Diaz might have established a novel constitutional rule if Crawford had announced that only statements made to police constituted “testimonial” statements. But Crawford contained no suggestion that the principle which it announced would be so limited. Indeed, the opinion included “[vjarious formulations” of what the Court called a “core class” of testimonial statements. Crawford,
The defendant appears to conflate the concept of “a novel constitutional rule” with an established constitutional rule that is applied to a novel fact pattern. For example, defendant argues that “Melendez-Diaz was the first time that the Crawford line of case[s] had been applied to what previously had been considered ‘neutral’ scientific evidence not subject to the confrontation clause.” That may well be true, but the new application did not expand or otherwise alter the basic principle that was announced in Crawford. The majority opinion in Melendez-Diaz explicitly noted that the decision in that case constituted a “rather straightforward application of [the Supreme Court’s] holding in Crawford.” Melendez-Diaz,
The “narrow exception” to the “raise or waive” rule applies to novel constitutional rules. It is not available when the Supreme Court applies a familiar constitutional rule to a novel fact pattern. If that were the standard, then virtually every constitutional decision of the Supreme Court would provide defendants an opportunity to take advantage of the exception. There would be nothing “narrow” about such an outcome, nor would that outcome further the rule’s purpose of “fairness and efficiency in the judicial process.” See DeMarco,
Y
Conclusion
For the reasons set forth in this opinion, we affirm the Family Court’s judgment of conviction. The record in this case may be returned to that tribunal.
Notes
. For the sake of brevity, we shall hereinafter generally refer to what occurred on November 23, 2005 simply as “the incident.”
. The defendant was charged with child abuse under G.L.1956 § 11-9-5.3 by criminal information on March 6, 2006. At that time, § 11-9-9 provided the Family Court with exclusive original jurisdiction over all offenses set forth in § 11-9-5.3. We note that, on July 3, 2006, the General Assembly enacted two public laws (viz., P.L.2006, ch. 260, § 1 and P.L.2006, ch. 290, § 1) which transferred jurisdiction of child abuse cases to Superior Court. However, since we have recognized that the prior version of the law applied to criminal defendants who were charged by information prior to July 3, 2006, defendant was properly tried in Family Court. See generally State v. Jennings,
.In actuality, the word "undisputed” appears at this point in the transcript. It is clear from the context, however, that “disputed” is what was meant.
. Doctor Harper's testimony was not limited to the facts described in this section. For example, she provided extensive testimony regarding the diagnoses, symptoms, and causes of various conditions that can affect the brains of children. However, since most of her testimony is not relevant to the narrow issue presented on appeal, our rendition of Dr. Harper's testimony is limited.
. General Laws 1956 § 40-ll-6(a) provides that “[w]hen any physician * * * has cause to suspect that a child brought to him or her or coming to him or her for examination, care, or treatment, is an abused or neglected child * * * he or she shall report the incident or cause a report thereof to be made to the [Department of Children, Youth and Families].”
. Under the General Laws, "retinal hemorrhages” are evidence of " ‘shaken baby syndrome’ and/or ‘abusive head trauma’ " — conditions that can provide the basis for a first degree child abuse charge. See G.L.1956 § 11-9-5.3.
. A hearsay objection is not equivalent to an objection based on the constitutional right to confront a witness. See, e.g., United States v. Cabrera-Beltran,
. The question that led to the second objection reads as follows:
“Q: And what did [the ophthalmologist] tell you.
“DEFENDANT’S ATTORNEY: Objection.
"THE COURT: Overruled.”
Concurrence Opinion
dissenting in part and concurring in the result.
Hindsight is always twenty-twenty — especially when afforded the benefit of almost seven years of clarifying United States Supreme Court jurisprudence. After a careful review of Crawford v. Washington,
We are unable to agree with the majority’s conclusion that, by failing to raise a specific objection under the Confrontation Clause to certain testimony presented at trial, Moten has waived that argument on appeal.
Preservation of Error
As the majority points out, this Court recognizes a narrow exception to our well-
The majority concedes that, “[cjertainly, at the time of defendant’s trial, the [United States] Supreme Court had not established the precise contours of what is and what is not ‘testimonial evidence.’ ” In fact, the Crawford Court explicitly acknowledged that it declined to articulate a comprehensive definition of the term “testimonial,” explaining: “[w]e leave for another day any effort to spell out a comprehensive definition of ‘testimonial.’ ” Crawford,
Indeed, in Melendez-Diaz,
Although the Court stated that its holding “involvefd] little more than the application of [the] holding in Crawford,” in reality, Melendez-Diaz was pivotal in Sixth Amendment jurisprudence. Melendez-Diaz,
Two years after the decision in Melendez-Diaz, the United States Supreme Court decided Bullcoming v. New Mexico,
Similarly, when Moten was tried in 2006, this Court had provided little guidance on the application of Crawford. In State v. Feliciano,
And so, we are now left to consider whether, at the time of Moten’s trial— years before Melendez-Diaz and Bullcom-ing applied Crawford’s reach beyond statements made to police officers — defense counsel could have reasonably known that the admission of out-of-court statements made by one doctor to another regarding the results of a retinal eye examination potentially might violate Moten’s right of confrontation. We conclude that, even if those cases did not clearly announce novel rules of law, they certainly employed novel applications to an unsettled rule of law. In reading the holdings of Melendez-Diaz and Bullcoming as mere applications of Crawford, the majority, in our opinion, does not sufficiently appreciate that both of those cases substantially expanded the scope of the Confrontation Clause.
Today, it is easy to conclude that competent defense counsel would raise an objection under the Confrontation Clause to the disputed portion of Dr. Harper’s testimony, but we cannot say that Moten’s counsel should have reasonably known that that objection would have been prudent at the time of his trial. See Breen,
Application of the “Primary Purpose” Test
We now turn to the merits of Moten’s Confrontation Clause challenge. Our in
In determining whether the ophthalmologist’s statements were testimonial, we employ the primary purpose test. See Davis v. Washington,
Doctor Harper was statutorily obligated, pursuant to G.L.1956 § 40-11-6,
In light of Dr. Harper’s statutory obligation to contact DCYF — and because evidence of retinal hemorrhages is delineated by the statute as one way to demonstrate serious bodily injury, thus establishing first degree child abuse — it seems clear that Dr. Harper would have anticipated that the information gathered from the ophthalmologist might be used in a subsequent prosecution. See § 11 — 9—5.3(c)(4) (defining “retinal hemorrhages” as one form of serious bodily injury). It does not necessarily follow, however, that the primary purpose of the ophthalmologist’s statements was to provide evidence of criminal conduct rather than to provide medical treatment. See Bryant,
In our view, the primary purpose of the ophthalmologist’s examination was to determine the extent of the injuries to the baby for the purpose of rendering medical treatment. Doctor Harper testified that she was concerned with the baby’s retinal bleeding, which could otherwise lead to blindness if left untreated.
Although we respectfully disagree with the majority’s conclusion that Moten’s Confrontation Clause challenge was not novel, and believe that the majority should have reached the merits of this issue, we ultimately conclude — after our own review of the merits — that the majority reached the proper result in affirming the judgment of conviction, because the evidence offered by Dr. Harper was nontestimonial.
. Moten did object to the admission of this testimony on what could have been understood to be hearsay grounds, which the trial justice overruled. It is noteworthy that in a decision issued just before the trial in this case commenced, this Court left for another day the decision as to "whether a defendant’s unsuccessful objection to a statement on hearsay grounds alone would have preserved the Crawford issue for review on appeal.” State v. Harris,
. There is no question that the Crawford Court identified a "core class of 'testimonial statements,'" including extrajudicial statements such as affidavits, depositions, prior testimony, and confession. Crawford v. Washington,
. General Laws 1956 § 40-11-6 provides, in pertinent part:
"(a) When any physician or duly certified registered nurse practitioner has cause to suspect that a child brought to him or her or coming to him or her for examination, care, or treatment, is an abused or neglected child as defined in this chapter, * * * he or she shall report the incident or cause a report thereof to be made to [DCYF] as provided in subsection (b).
"(b) An immediate oral report shall be made by telephone or otherwise, to both the department and law enforcement agency, and shall be followed by a report, in writing, to the department and law enforcement agency explaining the extent and nature of the abuse or neglect the child is alleged to have suffered.”
. In this case, Moten was found guilty of first degree child abuse under G.L.1956 § 11-9-5.3(b)(1), which provides, in pertinent part:
“(b) Whenever a person having care of a child, as defined by § 40-11-2(2) [as ‘a person under the age of eighteen (18)’], whether assumed voluntarily or because of a legal obligation, including any instance where a child has been placed by his or her parents, caretaker, or licensed or governmental child placement agency for care or treatment, knowingly or intentionally:
"(1) Inflicts upon a child serious bodily injury, shall be guilty of first degree child abuse.”
Section 11-9-5.3(c) defines "serious bodily injury,” to include physical injury that:
"(4) Evidences subdural hematoma, in-tercranial hemorrhage and/or retinal hemorrhages as signs of ‘shaken baby syndrome’ and/or 'abusive head trauma.’ ”
. Specifically, Dr. Harper testified that
“once you have hemorrhages in the eye, it can keep you from seeing well. And if you can’t see well, and when you’re young and trying to develop your vision, it can cause permanent difficulties with something called amblyopia where you can’t focus properly. You look cross-eyed. You may even go blind. So, there are grave concerns once you see these injuries to the back of the eye. You have to follow them closely and to make sure that she sees clearly and to make sure that the baby doesn’t need surgery on the eye. It’s a concerning point.’’