*1 S127344. Apr. 2007.] [No. PEOPLE,
THE Plaintiff and v. Respondent, CAGE,
LISA MARIE Defendant and Appellant.
Counsel Court, Vanderhoff, under Supreme Jeanne Courtney appointment Defendant and Appellant. General, Brown, Jr., M. Manuel
Bill and Edmund G. Lockyer Attorneys Schons, Medeiros, General, W. Gary State Solicitor Robert R. Anderson General, Scott C. Taylor, Deputy Assistant Michael T. Attorneys Murphy General, for Plaintiff Attorneys Respondent. District Attorneys
David Labahn for California George Kennedy on of Plaintiff and Respondent. Association Amicus Curiae behalf *5 Opinion L.Ed.2d Washington
BAXTER, J. (2004) v. 541 U.S. [158 In Crawford an Court (Crawford), 124 S.Ct. the United States Supreme 1354] the when the clause of nounced a new standard for confrontation determining evidence—i.e., an the use out-of-court hearsay Sixth Amendment of prohibits held offered for a criminal defendant. truth—against its Crawford uttered one who clause an accused against hearsay by this protects ” “ ” “ the (541 51) U.S. at if a ‘bearing] testimony’ p. spoke ‘witness[]’ stand trial nor otherwise available declarant neither takes the at was accused. cross-examination of kinds what declined to assessment comprehensive provide Crawford (Crawford, within core ‘testimonial’ statements.”
of fall “this class of hearsay However, “a even under 51.) the court concluded supra, 541 U.S. made, standard,” include a formal during narrow testimonial statements those in the crime under who herself interrogation, suspect one police (Id. 52.) investigation. p. State and federal courts have struggled to of concept apply Crawford cases,
testimonial The issue has hearsay. domestic abuse particular impact where the to information have on outside of prosecution may depend supplied court victims—often victims of are tender not years—because they available testify trial.
Here, defendant was
convicted
assault
aggravated
15-year-old
her
upon
relied,
son. The
did
testify.
victim
The
therefore
over
prosecution
law
defendant’s state
and confrontation
state-
objections,
hearsay
clause
on
ments the victim made to a sheriffs
and to a
deputy
treating physician.
trial,
after
Though
decided
defendant’s
while her
appeal
pending,
high court’s
to her
We
ruling applies retroactively
case.
must
her,
therefore determine whether the hearsay statements admitted
or
against
them,
any
were testimonial for
of the confrontation clause.
purposes
issues,
In
find
we
in a more
analyzing
guidance
high
recent
court
decision,
Davis v. Washington
(2006)
We reach a contrary conclusion the victim’s statement to the concerning who treated him at the physician order the nature hospital. help diagnose wound, treatment, of the victim’s slash determine the appropriate physician asked victim a victim single question—“What happened?” defendant, mother, that his held him responded grandmother down while cut him.
The primary purpose physician’s general question, objectively considered, act, was not to obtain of a criminal or the of proof past identity court, the for use in but to deal with a perpetrator, possible contemporaneous medical situation that immediate about information what had caused required Davis, 2266, the (See 813,_[126 victim’s wound. 547 U.S. 2276].) The victim’s answer was context. The given circumstances “ ’ ‘ ” (id. 2274]) none of the imposed “solemnity]” S.Ct. at p._[126 p. officials, inheres in an interview law false by enforcement where (Id. constitute criminal offenses. fn. 5 S.Ct. at may p._, Hence, testimony attributes of 2278].) statement lacked those the victim’s
p. of confrontation clause. are the concern the a witness that by to the victim’s statements of we that the erroneous admission find Finally, therefore affirm a doubt. We will the reasonable beyond was harmless deputy conviction. defendant’s which affirmed of the Court of Appeal, judgment
FACTS means likely produce with assault charged An information defendant Code, 245, (a)(1).)1 For (Pen. subd. purposes great bodily injury. § sentence, a deadly that she used alleged it was enhancing personally 1192.7, 667, inflicted (§§ (c)(23)) and personally subd. dangerous weapon 12022.7, 1192.7, (§§ (c)(8), (a)). subd. subd. on victim great bodily injury had of voluntary It further that she been convicted alleged was previously 667, 192, (§ (a)), subd. and that (a)), subd. serious (§ felony manslaughter 1170.12, (e), (§§ (c), she offender subds. “second strike” (c)). subd.
The evidence was introduced:2 following around 2:30 Riverside Sheriff May County Deputy
On p.m., he fight. a residence on a As family Mullin dispatched report Inside, house, he he towel and of blood. drops saw approached bloody two cuts on her found defendant broken There were small glass. picking up table was After nearby missing. speaking left hand. of a coffee glass top defendant, mother, no her Mullin having her daughter Kathy, departed, crime reason think a had been committed. later, a mile two
About an Mullin was to an intersection or hour dispatched (John), to look There he found John F. whom “injured for away person.” son, curb. was a large ascertained to be defendant’s on the There sitting face. medical emergency cut on left side John’s An ambulance were the scene. already at personnel County Riverside Medical Regional
John taken ambulance to ambulance, but went to the Mullin did not John in Center. accompany room, and had not “at a John was in the emergency later still hospital point.” John between been treated. Mullin asked “what yet happened [him] into got told John and defendant following: the defendant.” John Mullin statutory to the Penal Code. All further unlabeled references are rely we on that rehearing Appeal, primarily Court of so petition There was no Court, 8.500(c)(2)), though (see we have the facts Cal. Rules of rule court’s statement of of the record. means of our own close review supplemented *7 belt, i.e., an over a argument “she he was thought up house.” She messing him, table, began he fell backward over coffee and pushing a the glass top broke. Before he get could his came held up, grandmother downstairs and him. Defendant then of and cut him. picked up piece glass Russell,
Dr. a head and surgeon neck at the he treated John after hospital, was evaluated initially room emergency Dr. Russell testified physicians. to his usual the “first after pursuant practice, did thing” introducing himself was to ask John “what This was intended to obtain happened.” about information “what the been might have caused injury by, anything would wound, be relevant to my care him.” Given the taking nature Dr. Russell said “the deep gash, reason I asked him how specific why about it was to determine whether cut happened” contain ground-in debris that must be cleaned out to infection. prevent
In to Dr. Russell’s “he response John said had been held question, down his cut grandmother and mother.” by his Dr. Russell asked no further but questions, turned attention to He wound. treating reported John’s demeanor was “quiet quite that John “seemed respectful,” scared.”
Dr. gash Russell said the extended five to six inches from the of John’s top ear, left down across his jaw, and onto his neck. It had slight backward bottom, curve toward the was shallow at the relatively became top, cut,” progressively its It “a deeper along length. clean which very “looked like it had been done with a knife” but was with not inconsistent instrument, some other such “very as a of broken sharp” glass. piece hand, On the other Dr. Russell was inconsistent with opined, injury accident, head someone’s as in or going through a car glass, standing window that an shattered in or of thrown explosion, being target glass. instances, Russell, those said Dr. he would other expect bruising, multiple lacerations, and “jagged” “more rather than ripping cutting wounds.” type Dr. Russell added that see cut “rarely do one isolated like that with you long no other injuries on a body.”
After John was released from the Mullin conducted a hospital, Deputy with at the tape-recorded interview him station. On the which tape, for the John stated the He been played jury, following: staying defendant. They got into about a belt he could not She argument find. would not let him for it look in a closet. When he returned after for it looking she accused him garage, told him “messing garage up” table, leave. She onto the pushed him coffee which broke. His grandmother and his sister came downstairs. His him Kathy grandmother holding *8 the “slashed me across “a of and big glass”
when defendant picked up piece he free and “took off it but broke again, with it.” Defendant tried to do face me, it the but hit glass Defendant “tried to throw running.” out the door the He heard her say, police.” door.” “[C]all witnesses, the (who was seven at called her son Jermaine Defendant two (who Kathy the and her daughter five at the time of fight) time of trial and testified and the Jermaine fight). 14 when she testified 12 at time Jermaine saw them when had with defendant. as follows: John been living table, the coffee fell backwards onto fighting. were Defendant they already cut a that was on the floor got glass with John on When John of up, piece top. John. holding neck. Jermaine did not see his grandmother with defendant. He as follows: John not Kathy staying testified door, told to started They pushing knocked on the and defendant him leave. and and her the wall against each other. John hair “grabbed put [defendant’s] the her he kill her.” He defendant “frontwards” onto gonna told pushed table, ran fell of her. He then and breaking got up coffee the on glass; top John, did not grandmother out. Their tried break the She hold up fight. cut told to call Kathy defendant did not him with a Defendant piece glass. (thus is that if Kathy 911. admitted that defendant right-handed suggesting with hand the right against she wielded shard of she would do so her glass, left side of a her in a facing person struggle).3 Fenton, witness,
As rebuttal called Elisabeth social prosecution She was worker for child services. testified as follows: Fenton protective of child abuse in order investigate incident a matter assigned children were safe in her home. Fenton spoke ascertain whether defendant’s in which John was defendant’s about the incident daughter Kathy home for living told Fenton John had been defendant’s Kathy injured. the incident day month. further related Fenton on past Kathy television, noises, occurred, and came she was heard watching upstairs downstairs, John,” “did where he’d gone,” but not see “didn’t know that told her John “didn’t know what said her Kathy grandmother happened.” causing John the grandmother, and defendant had had fought, pushed the incident any to fall. Fenton said she had not seen Kathy her insisted herself. above, the did evidence described testify. jury
John not On basis but inflicted great bodily injury, found true defendant had personally a 13-year Defendant received charges allegations. otherwise sustained sentence. prison grandmother died before trial. trial,
Prior to prosecution sought ruling that John’s statements to Mullin and Dr. could Russell be admitted for their if truth even he did not statements, These testify. came within law prosecution argued, state *9 Code, hearsay for a victim’s exceptions (Evid. of report physical injury (id., 1370), and for 1240). spontaneous § statements The trial court § ruled that three all were statements admissible matter as a of state law. It further determined because the statements bore indicia of reliabil- particularized ity, their admission without an opportunity for cross-examination did not the (See violate Idaho v. confrontation clause. Wright (1990) 805 638, 3139]; L.Ed.2d Ohio v. Roberts 110 S.Ct. (1980) [111 448 56 U.S. 597, L.Ed.2d (Roberts).) S.Ct. 100 [65 2531] conviction, error, federal,
Defendant her appealed both asserting state and in the admission of John’s statements. the While was the appeal pending, 36, court Crawford, high decided 541 overruled Roberts U.S. which and announced a new standard for when admission of determining hearsay statements violates the confrontation clause.4 District,
The Court of Fourth Appeal, Appellate Division Two affirmed. The court first determined that all the were statements as a admissible matter Then, of state law. the confrontation clause of addressing issues light the court Crawford, concluded that John’s statement to tape-recorded Deputy Mullin at the statement, station police admitted. improperly This reasoned, court occurred a structured during of police interrogation pursuit a criminal investigation, was thus the kind of testimonial utterance with which was concerned. Crawford
However, held, the Court of John’s earlier to Appeal Deputy Mullin and Dr. Russell were both hospital admissible. statement Russell, reasoned, Dr. treatment, the court was for not law purposes enforcement, and the informal hospital statement Mullin Deputy testimony given in to a criminal response Mullin investigation; was simply to determine whether a trying crime even been committed. the court that
Finally, ruled admission of the statement was harmless taped a reasonable doubt. beyond The court noted this that statement was cumula- to, with, statements, tive and consistent the two admissible evidence otherwise indicated strongly defendant’s guilt. 4 rule high applies A new announced pending court to all criminal then on cases still 442, (Schriro (2004) 2519]; appeal. v. U.S. Summerlin 542 351 L.Ed.2d 124 S.Ct. - U.S._, Bockting (2007) _[167 but cf. v. Whorton L.Ed.2d not “watershed” on already appeal].) 1181-1184] rule retroactive to cases final No [Crawford
party disputes application case. to this Crawford’s review, raised only which post-
We defendant’s granted petition court has proceeded in this Briefing confrontation clause issues. hand, no have made People on On the other those issues.5 exclusively court, or in this John’s either in the Court argument, Appeal under station admissible statement tape-recorded Crawford. statements, or our to whether his hospital We therefore confine discussion them, clause restrictions on confrontation either of fall within Crawford’s admissibility. that the statement will we Court agree Appeal
As appear, conclude, but to the contrary Dr. admissible under we Crawford, Russell was Muhin was not. We Court of Appeal, hospital Deputy *10 that error the two statements nonetheless determine the in admitting police was harmless a reasonable doubt. beyond
DISCUSSION Roberts, 56, 448 the held that the statement of supra, hearsay In U.S. court the a not for at was admissible under declarant cross-examination trial present the unavailable to (1) truly testify confrontation clause if declarant was only test, the Under this (2) reliability. statement bore indicia of adequate case the evidence be inferred without more in a where “reliability [could] cases, a the evidence hearsay within rooted In other firmly exception. [fell] excluded, of guarantees be at least absent showing must particularized 66, (Roberts, omitted.) at fn. supra, trustworthiness.” p. 36, Crawford, court had reevaluate how supra,
In 541 U.S. the occasion to the the evidence must be determined under admissibility hearsay case, Crawford and his wife Sylvia confrontation clause.6 that petitioner victim, Lee, an went the Lee about looking alleged attempt for confront an at Crawford ensuing Lee’s rape Sylvia. During argument apartment, Lee in the he reacted when he thought stabbed the chest. Crawford told police Lee saw reach for weapon. Sylvia’s tape-recorded police assault, that led to the corroborated Crawford’s account events largely stabbed, but, the as to critical of events the moment Lee sequence 5 course, is any analysis, question the first for trial court whether Of Crawford not, hearsay exception. does proffered hearsay recognized fall state law If it would under Here, resolved, parties not analysis required. is do matter is and no further Crawford law, hearsay under and we do not dispute the statements were otherwise admissible the state question. that reach no on the introduction made clear that there are confrontation clause restrictions Crawford confirmed, nonhearsay [Confron for As purposes. “[t]he of out-of-court statements Crawford other than purposes Clause not bar the use of for [out-of-court] does tation] 60, 9, citing (Crawford, fn. establishing p. 541 U.S. at the truth of matter asserted.” 2078].) (1985) Tennessee v. Street L.Ed.2d 105 S.Ct. that, Sylvia’s version undermined Crawford’s somewhat. indicated Sylvia moment, Lee had assumed an with hands open-armed position, empty. murder,
Charged assault and claimed attempted self-defense. Nonetheless, The marital rendered unavailable privilege Sylvia to testify. prosecution sought introduce her statement to countermand that, Crawford’s self-defense claim. The claimed because she prosecution assault, led admitted she Crawford to Lee’s and thus facilitated the apartment the statement was under state admissible for hearsay declara- exception that, tions against interest. Crawford claimed state law penal notwithstanding, his federal confrontation would be rights violated introduction of Sylvia’s statement without opportunity cross-examination. Applying Roberts, statement, supra, 448 U.S. trial court admitted the reasoning “ ” that it exhibited ‘particularized guarantees (Crawford, trustworthiness.’ 40.) U.S. at supra, 541 p.
Crawford was convicted of assault. The Court of Washington Appeals reversed, test, concluding, under nine-factor statement was Sylvia’s sufficiently trustworthy satisfy confrontation clause. The Washington conviction, Court reinstated the Supreme while state- finding Sylvia’s *11 ment did not fall a within rooted the firmly balance hearsay exception, weighed in favor of its for confrontation reliability clause The court purposes. reasoned the that two statements—Crawford’s and suffi- Sylvia’s—were “ “ ” ‘interlocked,’ similar as to ’’and ciently thus the ‘overlap’ establishing likely Sylvia’s trustworthiness of account. (Crawford, supra, 541 U.S. certiorari, 41.) United p. On the States Supreme Court reversed. Amendment, noted,
The Sixth the court ac guarantees criminal Const., cused’s “to be right (U.S. confronted the witnesses him.” against Amend., 4, added.) noted, 6th cl. italics But this the court is not language, against” “witnesses could mean those who self-explanatory, only witnesses trial, trial, testified at all whose are those statements offered at or “something Hence, court, 43.) in-between.” said (Crawford, supra, U.S. the historical to ascertain the analysis necessary common of understanding the of to confront at the right witnesses time Amendment was scope and ratified. adopted recounted, court
As the common law had from English long differed civil law as to the means which European practices by gave witnesses in criminal The civil law form ex testimony trials. involved examina- parte and tions while the common law tradition live by judges prosecutors, favored court, 1550’s, in to adversarial But in testimony subject testing. during Queen Parliament enacted statutes ex Mary’s reign, authorizing parte pretrial obtained Statements and officers. by
examinations judicial prosecutorial some cases. evidence in available as criminal such examinations became the 1603 treason ex evidence was abuse of early parte The most notorious on the basis trial Walter was condemned Raleigh. Raleigh of Sir Cobham, ex examina- during Lord an parte made his alleged accomplice, by Council, that in a letter. Raleigh’s protests tion Privy Despite “ “ ” Proof contrary tried Inquisition’ ‘[t]he was being ‘by Spanish ” 44), his demands supra, (Crawford, of the Common Law’ were denied. examine Cobham in person reform English thereafter steady case others Raleigh spurred on of confrontation. the Marian statutes By the issue
jurisprudence cases, evidence in all criminal notwithstanding, it understood the accused if ex was not admissible against obtained examination parte trial, or in of the accused’s right witness was available derogation cross-examine. well, against
In the were raised laws protests practices Colonies as cases, in the law in criminal evidence obtained civil manner admitting, ex Many examination without an cross-examination. parte opportunity around the of the Revolution included declarations time rights adopted in the of confrontation. The absence of such express right provision original guarantee Constitution calls for inclusion of produced specific be of live before evidence criminal cases witnesses by cross-examination Congress triers of fact. The First confrontation responded by including (Crawford, that became the Sixth Amendment. clause proposal 43-50.) 541 U.S. at pp. First, noted, this court two inferences. it From drew history, *12 civil law mode against
the confrontation clause was directed the principally of ex examinations as system of criminal in its procedure, particular parte Thus, hand, on the clause did not evidence the accused. the one against witnesses who actually cross-examination simply rights against preserve trial, to the entirely changing testified at while statements leaving hearsay all hand, laws the concerned with of evidence. On the other clause statements, candi- even all those that be considered good or hearsay exclusion, for commonsense as unreliable. grounds, dates on Instead, reasoned, the the reference to “witnesses’ court clause’s express ” “ “ focus those ‘bear which is testimony,’ reflects its on who typically ‘[a] solemn or establishing or affirmation made for the purpose declaration ” 36, 51, Webster, An (Crawford, supra, some fact.’ 541 U.S. proving quoting who (1828).) of the “An accuser American Dictionary English Language officers,” court, makes a government formal statement to said the “bears in sense that testimony who makes a casual to person remark an Thus, (541 51.) does not.” at acquaintance U.S. court p. explained, text constitutional reflects an acute concern with a “especially specific type (Ibid.) out-of-court statement.”
The court noted that various formulations of this core class of testimonial been statements had One suggested. included formalized ex in-court parte affidavits, or its “functional testimony material such as equivalents]”—i.e., examinations, confessions, custodial that depositions, prior testimony “ cross-examine, defendant was unable to ‘or similar pretrial statements ” declarants would to be (Crawford, reasonably used expect prosecutorially.’ “ 36, 51-52.) supra, 541 U.S. Another included ‘statements that were made under circumstances which lead would reasonably witness objective ” (Id. believe that the statement would be available use at a for later trial.’ at 52.) p. minimum,” court, “testimonial,” said for purposes
“[A]t clause, confrontation at a “applies prior testimony ... preliminary hearing, trial; before a or jury, at a former and to grand interrogations.” (Crawford, 36, 68.) supra, 541 U.S. The court for explained purposes hand, it case term in its rather using “interrogation” colloquial, sense, than technical or need any legal did not to ascribe a precise statement, meaning, because “Sylvia’s recorded in knowingly given response to structured qualifie[d] any under conceivable definition.” police questioning, (Crawford, 4.) fn. p. said,
The second clear inference from the court’s historical it is analysis, that “the Framers would not have allowed admission of testimonial state ments of a witness who did not at trial unless appear [the witness] unavailable to and the defendant had had a testify, for prior opportunity (Crawford, supra, cross-examination.” 53-54.)7 This require ment, concluded, “sufficient,” the court is not but merely “necessary” (541 55.) U.S. at “Where are “dispositive.” testimonial in p. volved,” court, said the “we do not think the meant Framers to leave Sixth isolation, Read language suggest, some could opinion interpreted court’s be trial, absence paradoxically, unavailability, that a witness’s from as a result of true and a prior cross-examination, for opportunity prerequisites admissibility are of the witness’s hearsay actually But the opinion appears statements. makes clear “when the declarant *13 trial, cross-examination at places Confrontation Clause no constraints at all the use of on statements,” his prior testimonial not and that Clause does bar admission of a statement “[t]he (Crawford, supra, long present so as the declarant is explain at trial to defend or it.” 541 U.S. 36, 59, 9.) (2006) (People v. Lewis and Oliver accordingly. fn. We have construed 39 Crawford 1028, 970, 467, 775]; People v. (2004) Cal.4th fn. Morrison Cal.Rptr.3d 19 140 34 P.3d [47 698, 682, 568].) Cal.Rptr.3d Cal.4th P.3d [21 720 101
979 evidence, less to much of the rules of to the vagaries Amendment’s protection ” (Id. Hence, 61.) an opportunity at ‘reliability.’ p. notions of amorphous determina judicial by case-specific cannot be excused cross-examination testi particular and inconsistent application—that tions—subject dispute (Id. 60-68.) In reliable. pp. or trustworthy monial is hearsay sufficiently to the hand, statement police testimonial Sylvia’s the court explained, case he had no opportu Crawford even though for its truth against was admitted court, because said her. This was improper, to cross-examine nity consti satisfy sufficient to indicium of only reliability lacked “the con demands[,] [i.e.,] actually the one the Constitution prescribes: tutional 36, the court 69.) Accordingly, (Crawford, supra, 541 U.S. frontation.” Crawford’s judgment upholding Court’s Washington reversed Supreme its not inconsistent with opinion. and remanded for proceedings conviction (Ibid.)8 that statements
The
did not foreclose
possibility
majority
could be
interrogation
or
investigation
made outside the context
Moreover,
that its “refusal to articulate
conceded
majority
testimonial.
in this case will cause
testimonial hearsay]
definition
comprehensive
[of
68,
10.)
fn.
(Crawford, supra,
541 U.S.
interim uncertainty.”
arisen,
state and
in numerous post-Crawford
The
has
predicted uncertainty
in various
statements made
hearsay
federal cases involving
myriad
below the
unavailable for trial. We
discuss
briefly
circumstances by persons
whether,
when,
era,
reached,
as to
post-Crawford
results
divergent
But we think all the
are testimonial.
treating
hearsay
physicians
a careful examination of the high
issues in the instant case are resolved by
testimonial
effort
what
it means by
court’s own more recent
clarify
Davis,
813
The decision in
is
U.S.
hearsay.
point
[126
2266].9
grounds
against
admission
Crawford of
reversing
judgment
the state court
on
that the
clause,
Supreme Court
the confrontation
the United States
Sylvia’s police statement violated
prejudice
had
as a result
determine whether Crawford
suffered
independently
did not
signal
the admission of
this
as a
improper
interpret
evidence. We do not
omission
(See
per
is reversible
se.
hearsay
for cross-examination
opportunity
testimonial
without
(1991)
Arizona error,” amounting to a “structural defectf] is mere “trial admission of evidence [erroneous mechanism,” harmlessness].) subject evaluation for and is the constitution of the trial thus case, free to lower courts remained proceedings in Crawford’s presume subsequent We standards, determine, Sylvia’s prejudi statement was the admission of by appropriate whether cial or harmless. parties pending here on review. Davis decided while the instant matter was received, solicited, the merits in this court. We therefore already their briefs on submitted of Davis to the issues before us. addressing significance supplemental briefs *14 Davis consolidated and decided two different state cases re concerning to out-of-court sponses law questions by enforcement officials. Davis v. 05-5224, citizen, No. Washington, Michelle called 911. In the McCottry, “ ” call, asked, on,’ tape-recorded ‘What’s operator going “ ” further, McCottry Questioned ‘He’s here on me replied, again.’ jumpin’ “ ” fists, indicated that ‘he’ had no McCottry but was his weapons using “ had not been After drinking. admonishing that ‘I’ve McCottry got help ” started,’ line, and to on the asked the stay assailant’s last and operator name, initial, first and middle that he learning was Adrian Martell petitioner “ ” (Davis, Davis. At that point McCottry runnin’ now.’ reported ‘[h]e’s 813,_[126 547 U.S. supra, 2271].) S.Ct. “ ” indicated further that Davis had
McCottry run out the door’ ‘just talk, a car entering with someone else. When continued to McCottry “ ” off, cut her operator saying, and answer The ‘Stop talking my questions.’ information, then more operator gathered Davis’s including birthday, “ ” (to purpose coming McCottry’s house his stuff’ because ‘get and the McCottry context of the assault. Within moving), four minutes after the 911 call began, arrived. “observed police They McCottry’s state, face,’ shaken the ‘fresh on her injuries forearm and her and her ‘frantic efforts to her gather and her children so that belongings could leave the they ” (Davis, residence.’ 813,_[126 547 U.S. supra, 2271].) S.Ct.
Davis was
a domestic
charged
violating
no-contact order. McCottry
did not
at trial. The
officers
appear
testified to the
responding police
injuries
observed. Over
they
Davis’s
on confrontation
objection
clause grounds,
admitted,
truth,
the court
for their
McCottry’s statements on the
911 tape.
convicted
jury
Davis. The
Court of
Washington
affirmed. The
Appeals
Court
that the
Washington Supreme
agreed, holding
of the call in
portion
testimonial,
which
identified Davis
McCottry
and that if any portions
testimonial,
of the call were
their admission was harmless
a reason-
beyond
(Davis,
able
2266].)
doubt.
The court found Herschel on both The guilty charges. and the Court both affirmed. The latter court Indiana Appeals Supreme it was reasoned that oral statement was not testimonial because not Amy’s ” “ “ taken’ with in ‘where’ or to future use ‘given eye legal proceedings, ” the motivations of the and declarant are the central concerns.’ questioner 2266, (Davis, 813,_[126 Indiana supra, 2273].) high 547 U.S. S.Ct. testimonial, court conceded the affidavit was but deemed its admission harmless reasonable doubt. beyond Court Crawford, under United States
Assessing Supreme cases conviction, the two affirmed Davis’s but reversed Herschel’s. parsing situations, Crawford, the court first clarified a it had left now point open solely that clause is concerned confirming hearsay confrontation -_ 813,_ (Davis, are supra, testimonial 547 U.S. “ 2266, i.e., ”—the word 2274-2276]), S.Ct. those which ‘witnesses’ [126 “ ‘ or affirmat used in the Constitution—make “solemn declaration[s] ”’ (Id. ... for the some fact.” S.Ct. purpose proving p._[126 ion[s] noted, 2274].) As the court limitation so reflected clearly “[a] be not text of the constitutional must said to mark out fairly merely provision ‘core,’ (Ibid.)10 its but its perimeter.” 10Thus, Roberts, progeny and its supra, the court has made clear that 448 U.S. are a particular all relevance to a determination whether purposes, overruled for and retain no Davis, indicated in
hearsay statement is admissible under the confrontation clause. As the court hearsay separates it from other while is the testimonial character of the statement “[i]t hand, cautioned, On the other the court testimonial is restricted hearsay statements, to the most formal sort of sworn such as affidavits deposi- conceivable,” observed, tions. do not think it the court “that the “[W]e of the Confrontation protections Clause can be evaded readily by having declarant, recite the note-taking policeman unsworn hearsay testimony (Davis, instead of the declarant having sign deposition.” _ 2266, 2276].) “. . . The of even an oral solemnity *16 declaration of relevant fact to an past officer is well investigating enough established the severe by that can attend a deliberate consequences falsehood. (Ibid., . . .” omitted.) parentheses [Citations.]
The court succinctly distinguished testimonial from nontestimonial statements as to decide the necessary matters before it. “Statements are nontestimonial,” said, the court “when made in the course of police interroga tion under circumstances that the objectively indicating primary purpose the interrogation is to enable assistance to meet an police ongoing emergency. are testimonial They when the circumstances indicate that there is objectively no such ongoing emergency, that the of the primary purpose interrogation is to establish or prove events relevant to later criminal past potentially -_ 813,_ (Davis, 2266, prosecution.” supra, 547 U.S. S.Ct. [126 11 2273-2274].) case, this standard first to Davis’s
Applying court held that McCottry’s to the 911 responses while Davis was still in her house operator’s questions circumstances, were nontestimonial. considered under Objectively all the concluded, court these and answers were intended questions to deal primarily with an ongoing not to establish or emergency, facts for criminal prove past use.
The court identified four factors that indicated was not McCottry testifying call, First, call, during 911 as follows: a 911 and at least the initial are questioning operator, designed to some primarily prove past fact, Second, but to elicit current circumstances assistance. requiring police one call though 911 to relate a danger already past, McCottry clearly evidence, subject subject is not to the Confrontation upon hearsay traditional limitations (Davis, supra, Clause." 813,_[126 2273], Thus, added.) 547 U.S. S.Ct. italics there is nontestimonial, no basis for an inference hearsay even if a is it must Roberts undergo analysis nonetheless may before it be admitted under the Constitution. 11 noted, Crawford, similarly The court as it had implied holding in refers to “[o]ur interrogations presently because ... the statements in the cases products before us are the (Davis, interrogations—which generate in some responses.” circumstances tend to testimonial 813,_, supra, 2274].) Though 547 U.S. fn. 1 S.Ct. explain the court did not context, refer, exactly by “interrogations” what it meant in this the term seems to in the court’s mind, Crawford, (see 36, 53, supra, 4) questioning” “structured 541 U.S. fn. law officials, calling being enforcement for considered responses person questioned. factual Third, fide, threat. ongoing a bona physical seeking help against viewed objectively, and the McCottry operator, between conversation than rather emergency, of the current on resolution facilitating was focused formality the level of Finally, in the past.12 what establishing happened station interro- the testimonial police interview and between McCottry’s calmly, was responding “Crawford striking. gation house, the officer-interrogator taping to a series of questions, station answers; over were frantic answers McCottry’s provided notes of her making (as any or far as that was not even in an tranquil, environment phone, (Davis, out) safe.” could make reasonable 911 operator 2266, 2277].) _[126 said, easier, the testimonial nature the court to resolve
It was much to the questioning Hammon. Amy Amy’s interview with officer, observed, the statements we not much different from the court “were from the circum- It is clear entirely to be testimonial found Crawford. *17 into of an investigation was Amy] part stances that the interrogation [of conduct—as, indeed, officer testifying expressly criminal past possibly 813,_ 2278].) (Davis, S.Ct. supra, 547 U.S. acknowledged.” [126 in arrived, an altercation still he saw no evidence of When the officer fine, faced no immediate was and that she told him Amy everything progress. room, time, “he was her a second in living threat. When he interviewed is but rather (as case]) determine in ‘what happening,’ to seeking [Davis’s sole, viewed, if not indeed ‘what Objectively primary, happened.’ (Ibid.) . . .” crime . investigate of the interrogation possible purpose conceded, formal, none more the court interview was Though Miranda audio (station setting, warning, the features that made it so house In Herschel Hammon’s to its testimonial nature. was essential recording) in a case, was conducted enough Amy’s interrogation was formal “[i]t room, , her receiving . . . with the officer from her husband away separate were actively . . . Both declarants for use in his ‘investigation.’ replies recounted, in deliberately the defendant.... Both statements from separated began criminal events how past potentially response police questioning, described time after the events And both took some and place progressed. are an obvious interrogation statements under official were over. Such does what witness do because testimony, they precisely substitute for live (Davis, examination; testimonial.” inherently direct are they on 2266, 2278], omitted.) 813,_[126 fn. U.S. S.Ct. aside, effort to establish operator’s this was true “even of the explained In an the court assailant, they would be might know whether dispatched that the officers
identity of the so 813, ___ (Davis, supra, encountering felon. violent [Citation.]” 2276].) from Davis. First, above,
We derive several basic as noted principles the confrontation clause is concerned statements that are solely hearsay testimonial, form, in that are out-of-court they and analogs, purpose Second, testimony given witnesses at trial. by a statement need not be though testimonial, sworn under oath to be it must have occurred under circum stances that to some imparted, degree, character formality solemnity Third, istic of the statement testimony.13 must have been and taken given primarily purpose for the ascribed to establish or some testimony—to prove Fourth, fact for past use in a criminal possible trial. primary purpose which a statement was and taken is to be given determined “objectively,” all the considering circumstances that might bear on the intent of reasonably Fifth, in the participants conversation.14 sufficient formality solemnity when, situation, are in a present nonemergency one responds questioning officials, law enforcement where deliberate falsehoods be criminal Sixth, offenses. elicited law enforcement officials are not testimonial if the them primary purpose giving is to deal receiving with a rather than to contemporaneous emergency, evidence about produce events for use at a past possible criminal trial.
Under these it seems principles, manifest John’s response Deputy Muffin’s question room was testimonial. Muffin had hospital waiting been to the previously home shared defendant dispatched John on blood, of a domestic reports disturbance. There Mullin had seen drops coffee table its and broken missing glass that defendant top, glass 13Responding charge to the majority carrying dissent’s that the Davis concept its *18 clause, i.e., hearsay beyond targeted by testimonial the abuses the confrontation depositions declared, by magistrates, majority taken Marian formality do dispute not that is “[w]e utterance,” indeed essential though necessary formality to testimonial only does not arise from specific practices, long superseded, those by that had been authorized the Marian statutes. (Davis, 813,_, 2278].) 547 U.S. fn. 5 mentioned, possible One hearsay formulation of testimonial that expressly was but not “ endorsed, by the court extended to all ‘statements . . . made under circumstances Crawford objective which would lead an reasonably witness ” that to believe the statement would be 36, 52, (Crawford, supra, added.) available for use at a later trial.’ A italics broad formulation, decisions, interpretation adopted by of this as post a number of could -Crawford apply virtually every out-of-court statement purporting to describe the circumstances of a crime identify perpetrator, or to its person insofar as a reasonable could conceive that the might later become criminal argument, evidence. At oral defendant’s counsel came course, espousing close to such a view. Of suggested concept itself that the of “ ” far, go testimonial noting testimony statements does not so that is defined as a ‘solemn’ “ ” fact,’ purpose establishing proving declaration made of or some and that “[a]n ‘for government who testimony accuser makes a formal statement to officers bears in a sense that a (Id. added.) person who acquaintance p. makes casual remark to an does not.” at italics proper Davis now confirms that the focus is not on the mere that reasonable chance an Instead, might out-of-court statement later be used in a criminal trial. are concerned we statements, which, formality, objectively, made with some primary purpose viewed are for the establishing proving possible of or facts for in use a criminal trial. later, hour Mullin had cuts on her hand. An Defendant
cleaning up. location, man was or two where away, young to a a mile called different curb, learned that the injured on the face There Mullin his slashed. sitting was defendant’s son. youth scene, were medical
When Mullin arrived this emergency personnel did Mullin took him to the to John. An ambulance already attending hospital. time. a later but came to the hospital not assist this procedure, simply room, Then, Mullin while treatment in the emergency John awaiting and the between [him] John “what asked to describe happened [had] defend- (Italics added.) ant.”
Thus, Mullin with John in the the incident hospital, the time spoke an alleged had been over for more than hour. The injury caused John’s left were John had alleged assailant victim geographically separated, had taken to a location the scene he thereafter been remote injury, treatment. had not been treated Though to receive medical apparently yet him, no further a doctor Mullin he was in danger when questioned as be violence to which intervention might required. contemporaneous course, care Of John remained in need of acute prompt physician Thus, extent, To if the there remained injury. ongoing emergency. John, conversation between Mullin and primary purpose hospital treatment, emergency viewed been to facilitate such objectively, elicited well not the character of testimony. have thereby might However, is no so intended. Mullin had there evidence interview was role been involved in John’s treatment. His previously emergency had been as an officer. He arrived at throughout investigating police only after John was in medical hands. Muffin’s clear already hospital purpose present not to coming with John at this deal with juncture speak emergency, past involving events but to obtain a account of fresh defendant Indeed, the of an into criminal form of Muffin’s part inquiry possible activity. assumed that defendant be the John’s injury.15 question perpetrator *19 crime, he investigate not to a for People urge attempt The that Mullin’s was question “ ” (Davis, occurred, yet merely an ‘assess the did not know one had but effort to situation’ 813,_[126 2266, 2279]) to supra, immediate S.Ct. determine whether further necessary safety of the apprehend perpetrator, action be to a to ensure the police officers, safeguard and to the other minors in defendant’s home. While apprehending “[s]uch (ibid..), may exigencies inquiries’ produce mean that ‘initial nontestimonial statements” often already here. Mullin had visited support People’s the record does not characterization disturbance, John’s reports suspect of a domestic so he had reason to defendant’s residence on Yet, though was and coherent injury appears was related to that incident. it John conscious curb, to sitting is no indication Mullin tried when Mullin first encountered him on the there go he with John emergency John at that time. Mullin testified did not obtain information from interview, room, circumstances this in a were hospital emergency informal, but were relatively they no less formal or structured than the in Davis.16 Here, there, residential interview of Hammon Amy as requisite criminal solemnity imparted by potentially consequences fact, difference, to a officer.17 In lying peace we no material for perceive clause, of the confrontation between the purposes two interviews. We there- Mullin, fore must conclude that the admission of John’s statement hospital defendant, without an for cross-examination a violation of opportunity and Davis. the Sixth Amendment as construed in conclusion, however, We reach a different to John’s respect hospital above, to Dr. Russell. As indicated when John was seen by Russell, Dr. he needed immediate acute treatment for a five- or six-inch laceration on the side of his face and neck. As Dr. Russell his sole explained, determine, in object John “what asking in accordance with happened” wound, his standard medical the exact nature procedure, and thus the form, correct mode of treatment. The was neutral question John though assailant, defendant responded by identifying as his Dr. Russell did not viewed, that avenue further. pursue Objectively primary purpose answer, and the was not to question, establish or facts for prove past possible use, criminal but Dr. Russell deal with the immediate medical help situation he faced. It akin was thus to the 911 operator’s emergency question- in Davis. of Michelle ing McCottry there, in the ambulance and simply proceeded hospital to the “at a later point.” Once Mullin Instead, open-ended designed did not ask an question emergency to elicit information. on the knew, focused, of a suspicion already basis derived from what he posed accusatory, a investigatory inquiry; he asked what had happened “between and the [John] defendant.” (Italics added.) testify Mullin did ongoing that he was motivated concern about an intervention, and, might require situation that further immediate police though he later returned to defendant’s residence investigatory purposes, there no up is indication he followed what circumstances, by initiating emergency John told him such action. Under these there is no basis statement, “objective[]” for an “primary purpose” given conclusion that the of John’s taken, situation, help ongoing was to deal with an rather than prove to establish or
past potential facts for future in a use criminal trial. 16Nor was insufficiently Mullin’s interview with John “structured” to constitute an “interro gation,” to the extent testimony only single this is relevant. Muffin’s mentioned question, but for, elicited, question called Similarly considered and detailed narrative response. “ ” Davis, [Amy an officer ‘asked what had occurred’ and account.” Hammon] “[heard] [her] (Davis, 813,_[126 S.Ct. 2266, 2272].) supra, 547 U.S. Though Amy this officer also affidavit,” sign “battery high fill out and procedure court did not deem this additional Indeed, Amy’s crucial to a determination that oral statement to the officer was testimonial. willing Davis court noted that Framers were no more to exempt from cross- “[t]he open-ended questions they examination . . . answers to exempt than were to answers (Id. 2274].) interrogation.” p.__, detailed fn. 1 148.5, officer, (a), Section subdivision makes it a report peace misdemeanor to to sworn sheriff, committed, including a deputy felony knowing that a or misdemeanor has been report to be false. *20 Moreover, the had none of the or formality context of conversation with solemnity testimony characterizes witnesses. by speaking Russell, Dr. John did not confront structured law enforcement questioning in acting conjunction authorities. There is no evidence that Dr. Russell was enforcement, with law or that his about the cause of John’s injury question discloses, had aim. So far as the record Dr. Russell any evidence-gathering made no effort to record or memorialize John’s statements for later use. legal criminal John faced no for make. The sanction false statements any and answer in a between a occurred conversation question private patient doctor, which both ensure John’s presumably sought only proper treatment.18 out, Davis
As defendant concerned whether points only “interroga law tions” testimonial statements. But produced enforcement officials the court made that even clear statements to law enforcement officials as the result of are not testimonial if and taken for nonevi “interrogations” given (Davis, such the need dentiary as purposes cope ongoing emergencies. 813,_, so, 2273].) fn. 1 That we being cannot that an informal imagine statement to a not affiliated with law person enforcement, doctor, such as a medical for the solely nonevidentiary purpose treatment, of diagnosis and would be deemed testimonial. As we have indicated, the focus of both and Davis is on formal and solemn accusatory statements made to law agents context of enforcement criminal investigations or kind, inquiries. An utterance of this has court indicated, is a modem analog of the ex obtained by parte declarant, substance, magistrates under the Marian It statutes. renders who, statement, “witness” by making bears testimony. contrast,
By John’s statement made solely of medical treat- purposes ment to a not affiliated with or has none of the physician prosecutors characteristics the court has found in its recent If a significant analyses. to a law statement made under is nontes- “interrogation” enforcement official timonial where “the circumstances indicate” that it was not objectively “primar[ily] or events purpose establishing] proving] past [for of] 18Indeed, John, Russell, the substance patient, conversation between and Dr. as physician, normally would privileged, subject only patient’s be confidential and to the waiver. Code, However, (Evid. 990-994.) physician-patient privilege apply §§ does not (Id., 998.) proceeding. criminal Dr. present part” While Russell indicated he was for “at least § John, Deputy hospital Mullin’s interview with there is no evidence Mullin present during Dr. Russell’s actual medical consultation with John. There is no merit to defense suggestion argument may counsel’s part oral that because Dr. Russell have overheard Russell, Mullin, to Dr. during what John told John’s later statement made medical doctor’s examination, trial, anything say was testimonial. At Dr. Russell did not allude to he heard John presence to Mullin. And Dr. incidental between Russell’s earlier conversation John agent investigatory Mullin did not transform him into an of law enforcement with a criminal purpose. *21 988 (Davis, relevant to later criminal supra,
potentially prosecution” _[126 2273-2274]), the court would we cannot assume apply different, made more standard to a noninterrogational stringent court would outside the law It seems clear the context of enforcement. of the such a statement within neither the “core” nor the “perimeter” consider concerns addressed the confrontation clause. by victim of
Defendant that statements to a a minor urges physician is, statute, a abuse are testimonial because the doctor necessarily parental of child abuse. “mandated to law enforcement authorities reporter” suspected conclude, however, 11165.7, (a)(21).) (See 11164 et subd. We seq., §§ Dr. mere a mandated did not render John’s Russell’s status as reporter statement to him testimonial. a doctor to or investigate statute does not
Significantly, oblige reporting ascertain, of criminal whether a has patient for purposes possible prosecution, “whenever such abuse. The sole is to make a duty suffered physician’s report of his or her or in his or her or within professional capacity scope [he she] a child whom the has or observes employment, knowledge [physician] or has been the victim” of abuse or reasonably suspects neglect. knows (§ added.) (a), subd. italics see, or suspect,
The mere fact that doctors must abuse report they into investigative know in the course of does not transform them practice their motivated medically of law enforcement. Nor does it convert agents interro the examination of minor into investigatory questions during patients Here, Dr. Russell’s incidental that elicit testimonial gations responses. despite abuse, “the circumstances objec status as a mandatory reporter suspected and John’s indicate” that the of his tively question, “primary purpose” answer, in order to was to the nature of a serious acute injury pinpoint establish, treatment, for criminal immediate not to potential purposes, provide that John was abused.19 California decisions to assert that hearsay
Defendant cites two pre-Davis be testimonial may other than law enforcement officials statements persons our for of the confrontation clause. Neither alters analysis purposes instant facts. 673], (2004) v. Pirwani 770 Cal.Rptr.3d People Cal.App.4th adult, since
Court of held that out-of-court statements by dependent Appeal argument argument, reporter” defendant’s “mandated As defense counsel conceded at oral (see 11165) treating to a 17-year-old patient § would mean that certain statements statements, testimonial, 18-year-old identical automatically patient’s while an physician are reasons, are not. We see no basis to reach under identical circumstances for identical made illogical such an conclusion. But the sole issue
deceased,
excluded.
worker should have been
to her social
within the state hearsay
excep-
came
was whether
addressed
1240; Pirwani,
Code,
(Evid.
utterances
§
tion
spontaneous
*22
of this
whether admission
no
787-790.) The court expressed
opinion
pp.
violated
Crawford.
753], a
v. Sisavath
(2004) 118
1396
People
Cal.Rptr.3d
Cal.App.4th
[13
County Multidisciplinary
from the Fresno
interview specialist”
“forensic
abuse
sexual
(MDIC) interviewed a four-year-old suspected
Interview Center
and his
charged
after the defendant had been
The interview took
victim.
place
and a district
had been
The prosecutor
hearing
completed.
preliminary
the victim was
at the interview. When
were
attorney’s investigator
present
to
about
testify
was allowed
investigator
to testify,
adjudged incompetent
error,
of
found
adduced in the interview. The Court
Appeal
the statement
circumstances,
but
“there is no serious
under these
question”
reasoning
“ '
would
“made under circumstances which
that the victim’s statement was
would be
to believe that the statement
reasonably
lead an
witness
objective
’ ” (Id.
1402,
Crawford,
at
available for use at a later trial.”
p.
quoting
36, 52.)
above,
in Davis the United States Supreme
Court has since
As indicated
in
But the statement at issue
refined the definition of testimonial statements.
recent
Sisavath
even under the more
well be considered testimonial
It
in a formal
after criminal
setting,
proceedings
formulation.
was made
interviewer,
of law
It
elicited
a trained
presence
commenced.
of
criminal evi-
obtaining
enforcement
with the manifest
personnel,
object
interrogator
dence. The MDIC
as a law enforcement
agent
acting
simply
in Sisavath
that
the brief
in the circumstances.
Nothing
suggests
private
Russell,
Dr.
for the
of providing
conversation between John and
purpose
treatment,
statement.20
medical
a testimonial
receiving
produced
20
varied,
post-Crawford,
jurisdictions,
Though
analyses
most
decisions
other
their
have
Davis,
physicians
purposes
before and after
have concluded that statements
both
acting in
the doctors were not
medical evaluation and treatment
not testimonial where
were
possible
prosecu
use in a
criminal
cooperation with law enforcement
to obtain evidence for
Fleming
882, 895-896;
(W.D.Wn.
Miller v.
(8th
2005)
v. Peneaux
U.S.
(E.g.,
Cir.
432 F.3d
tion.
alia,
435466,
2006)
concluding,
five-year-old
case
inter
[pre-Davis
2006 WL
*5-*8
2006)
People
Vigil
use];
(Colo.
P.3d
127
reasonably contemplate trial
v.
declarant would not
alia,
916,
not
seven-year-old declarant would
concluding,
case
inter
[pre-Davis
921-926
team”];
Com.
v.
protection
medical “child
reasonably contemplate trial use of her statements to
(2006)
concluding that
[pre-Davis case
DeOliveira
Mass. 56
N.E.2d
[849
224-227]
447
se,
by police
as elicited
six-year-old
per
declarant were not
testimonial
use];
fact,
reasonably anticipate trial
interrogation,
in that declarant would not
or testimonial
Foley
(Miss. 2005)
part
made as
v. State
[five-year-old child’s statements
So.2d
685
Vaught
testimonial];
(2004)
State v.
The West
Court of
held that
the admission of
Virginia Supreme
Appeals
Thom’s
statement
Alvarez
have violated
hearsay
through
might
Crawford
Davis. Mechling
decisions
court reasoned that the
in those two
holdings
First,
testimonial,
could be distilled to the
a statement
is
whether
following:
enforcement,
that
or not
of law
if made under circumstances
given
agents
would lead an
witness
to believe it would be available
objective
reasonably
Second,
in a later trial.
to law
are not
agents
for use
statements
enforcement
if made under circumstances
indicate the
objectively
primary
testimonial
to enable
deal
an
but are
ongoing emergency,
with
purpose
police
exists, and
objectively
testimonial
if no
the circumstances
ongoing emergency
relevant
indicate the
was to establish or
events
prove past
potentially
purpose
311, 321.)
(Mechling, supra,
to a later criminal
633 S.E.2d
prosecution.
any
Mechling
these
court
to conclude that
Combining
concepts,
appeared
906,
formulation];
(2005)
718
Wn.App.
State v. Moses
129
P.3d
[119
911-912] [domestic
testimonial;
during private
abuse victim’s statements to doctor
exam were not
exam was for
treatment,
investigation, and
purpose
diagnosis
physician
was not connected to criminal
believed,
believe,
record
not indicate declarant
or had reason to
statements would be used
does
72,
82,
trial];
see,
(2005)
e.g., People
Ill.Dec.
823 N.E.2d
Ill.App.3d
at
but
v. West
355
28 [291
hospital emergency
personnel
medical
were testimonial
rape victim’s statements to
90] [adult
e.g.,
v.
they alleged
perpetrator]; compare,
insofar as
criminal conduct and identified a
U.S.
548,
(8th
2005)
sex abuse victim’s statements to “forensic
Bordeaux
Cir.
400 F.3d
556 [child
testimonial,
designated by
were
even if doctor observed
interviewer”
law enforcement officers
treatment];
(2004)
Ill.App.3d
In re T.T.
purpose
[287
interview and one
was medical
145,
789,
accusatory statements to
Ill.Dec.
815 N.E.2d
sex abuse victim’s
803-804] [child
unit and had testified
examining physician
hospital
protection
who was member of
child abuse
testimonial];
(2005)
in child
were
State v. Snowden
For reasons we have already explained respectfully view, neither nor reasoning Mechling. with the In our disagree Crawford statements, testimonial, Davis made all and thus inadmissible as hearsay, statements, available for use other than be emergency might reasonably events, in a criminal trial. the extent describe criminal “casual they To Alvarez in to an such as Thom’s comments acquaintance,” remark[s] Mechling, (Crawford, supra, be so used if otherwise admissible. 51.) that such casual 541 U.S. Yet itself p. strongly signaled Crawford remarks, made characteristic of without “solemnfity]” “purpose” (Crawford, supra, are not the concern of the confrontation clause. “testimony,” 36, 51.)21 Davis laid And if left doubt on any subject, There, it to rest. made clear where to law enforce court *24 issue, are ment officials are at and “solemnity]” testimonial “purpose” essential. No more mle should to statements made to stringent persons apply who are not law enforcement and outside the context of a criminal agents, investigation.
We therefore conclude that John’s statement to Dr. Russell not testimonial. Accord course of medical evaluation was physician’s for defendant at her trial admission of this statement its truth ingly, against clause, did not contravene the confrontation as construed Crawford Davis, even she had no to cross-examine John. On though opportunity hand, indicated, we have Muffin at other as John’s statements Deputy Thus, were testimonial. under the standards set station hospital Davis, forth in were inadmissible for truth they against those stan defendant without an for cross-examination. Because opportunity case, defendant’s we must determine whether the dards apply retroactively trial have influenced the may admission of latter statements defendant’s outcome, and thus rendered her trial unfair. Mullin
We are that admission of John’s statements to Deputy persuaded v. (1967) (Chapman was harmless a reasonable doubt. beyond California 21 concluded, Crawford, accusatory a sexual abuse We ourselves after clause. purposes testimonial of the confrontation victim to a friend school was 536, 580, 344].) (2004) (People v. Cal.Rptr.3d P.3d 33 Cal.4th fn. 19 93 [15 Griffin Russell, 824].) U.S. L.Ed.2d 87 S.Ct. The statement to Dr. treatment, made for of medical indicated what had caused purposes succinctly that, him, John’s He told Dr. Russell while his held injury. grandmother demeanor, defendant had cut him. Dr. Russell that John’s he reported answered Dr. Russell’s and that he seemed question, quiet respectful, frightened.
Other evidence was consistent with John’s claim. At substantially outset, that evidence indicated John had been broken strongly injured by glass victim, a domestic before he encountered the during argument. Shortly injury house, Mullin had been to defendant’s home. Deputy Outside dispatched Inside, he saw a towel and of blood. defendant bloody drops sweeping broken and the coffee glass, table was up top obviously missing. evidence, Defendant had on her cuts hand. From this and from the nature of John’s wound Dr. itself—as described Russell and in several depicted fact finder would almost infer that John had graphic photographs—a certainly cut been of broken an altercation in which large piece glass during defendant was involved.22 inference,
The did not this but it in parties sought dispute explain different on John’s statements about the did not ways. Relying which episode, on the vary insisted defendant assaulted John with point, prosecution claimed a shard of defense suffered an accidental when glass. injury he fell The case thus turned on whether John’s among glass fragments.23 wound was inflicted or sustained. intentionally accidentally reasons,
In this Dr. Russell testified for several the cut on regard, wound, John’s face and neck was not consistent with an accident. The noted, clean,” Dr. Russell it “very “looked like had been done with knife,” and contained no or other debris. In an glass fragments ground-in said, accident broken Dr. Russell more involving glass, he would expect lacerations, jagged “more rather than wounds.” ripping cutting type *25 Moreover, observed, the Dr. Russell five- or relatively straight deep, six-inch face and cut had across John’s neck was the John gash only sustained; Dr. Russell no other Such an saw bruises or lacerations. significant indicated, “rare[],” isolated would be Dr. Russell for a acciden- injury person Moreover, of shattered or tally by fragments shattering glass. impacted Dr. cut it Russell the became as from reported, deeper progressed top this, bottom. From could infer that a was jury readily sharp object 22 Thus, by struggle persuaded we are not the dissent’s assertion that the inference of a arose evidence, which, only, speculates, might not have primarily, or even from defense dissent presented Deputy been had John’s statements to Mullin been excluded. self-defense, intentionally any cut nor there Defendant did not claim she John but in was person intimation that a third slashed John. increasing pressure, cheek and with jaw across John’s downward
dragged fashion, incidental contact into coming rather than gouging an intentional face, the the left side of John’s wound on skin. as a vertical Finally, with his such a right-handed person, infliction by consistent with naturally was injury defendant, with the victim. confrontation face-to-face during that she had defendant disputed her own Through eyewitnesses, purported of these witnesses credibility But the with a shard glass. assaulted John John’s he did not see son Jermaine said was Defendant’s manifestly suspect. accidentally during John was cut suggested hold John and grandmother testified, five and only old when years But Jermaine was seven only fall. the struggle. old when he witnessed years that she saw the alterca- also testified teenage daughter Kathy
Defendant’s unannounced, elsewhere, started arrived tion. She John had been living said confrontation, fall onto the coffee table. then ran after the away the physical that and denied was held his grandmother, denied John Kathy credibility But Kathy’s cut him either or intentionally accidentally. defendant Kathy Fenton. Fenton said of social worker testimony was impeached told her that John defendant, had been and that who Kathy, living television, after John had only departed, arrived downstairs watching upstairs on an account did not see of the and relied any fight, supplied part grandmother. course, events that him injured
Of John’s credibility recounting evidence that defendant had not irrelevant. His account was the direct only Moreover, wound, John made had so intentionally. inflicted his and done times, additional details to this accusation three separate provided to some degree. have bolstered may credibility police, evidence, however, statements to Deputy John’s overall state with his consistent substantially Mullin were cumulative. were largely They Russell, contained they in the additional details nothing to Dr. Furthermore, to believe there was ample ground was crucial to the charges. emergency on its own merits. In hospital John’s statement to Dr. Russell John frightened, injury, visibly room for acute treatment of a serious truthfully.24 the treating questions reason to answer every physician’s doctor, including lie to the why reasons John speculates The dissent on various defendant, fight (though he aggressor in the suffered anger guilty his own involvement as the impeached), only significant injury, and his sister’s claim he attacked defendant *26 (which only jury because his arrest was before his concern about an unrelated warrant for statement). pretrial a The dissent also notes police improperly tape-recorded of his admitted However, as we diagnosed schizophrenic. by defense counsel that John had been comment text, supports circumstantial evidence John’s physical indicate in the circumstances, conclude, Under these we omission at trial of the statements Mullin would not have altered the outcome. we affirm Deputy Accordingly, of the Court judgment which defendant’s conviction. Appeal, upheld
CONCLUSION of the Court of affirmed. judgment is Appeal J., J., Chin, J., Moreno, J., J., C. George, Werdegar, Corrigan, concurred.
KENNARD, J., Dissenting. the trial court’s I join majority upholding victim, minor, admission of a statement that the made to an alleged room I emergency treating his also that the trial physician injuries. agree court violated defendant’s under the confrontation clause of the federal rights Constitution by two statements that the minor made admitting sheriff’s however, describing cause of the minor’s I do not deputy, injuries. agree, that the erroneous admission of these two statements was harmless.
I home, While investigating domestic disturbance at defendant’s Riverside Sheriff Mullin County Deputy Perry bloody saw towel and of blood drops home; home, outside the inside the he saw the of a glass coffee table was top and defendant missing broken After to defend- picking up glass. talking members, ant and other Mullin family left. An hour later he was Deputy home, to an intersection a dispatched mile from defendant’s where he found son, R, defendant’s John who had not 15-year-old been at the home present Muffin’s earlier visit. John had a during cut from his ear to his large running neck. Muffin saw to it that John was taken to a hospital.
Later, Mullin talked to Deputy John room. hospital’s emergency John said that (defendant), with his mother during argument she pushed him, him to fall on the causing coffee table and break it. John’s glass him; him, then grandmother grabbed while she was defendant cut holding time, him with a shard of glass. When defendant started to cut John a second he broke free and ran away. Russell,
When the room Dr. Paul asked John what emergency physician, John he had been held down happened, replied grandmother cut his mother. Russell, course, Dr. and the conditions under which it was made were conducive truth. Of jury’s credibility any assessment of his would not have been affected under circumstances Hence,
by a mental health evaluation that in evidence. fails to was not dissent cast reasonable doubt on our conclusion that the exclusion of John’s statements would not jury’s have altered the verdict. *27 him Mullin questioned release from the hospital, Deputy
After John’s statement, described the assault John In a station. tape-recorded police or five weeks. On defendant for four he had been with living detail. He said assault, looking saw John became when she defendant upset the day went to the items. He in a closet where she kept personal for a belt of his returned, belt; him of defendant accused when he to look for another garage shirt, it, after tearing then John She messing garage. pulled up table, it. John’s breaking coffee him onto the glass which she pushed Defendant when he got up. John grabbed came downstairs grandmother John’s the coffee table and slashed of broken from glass a picked up piece time, and ran face; he broke free tried to slash John a second when defendant out the door. trial, introduced his two John did not but the testify, prosecution
At one made made at the statements to Mullin—the one Deputy hospital to Dr. Russell at the hospital. at the station—as well as his statement or a could have been inflicted by glass Dr. Russell testified that John’s wound injuries He he had treated with head sustained many knife. said people Those wounds were ordinarily with and a colliding breaking glass. pane wounds”; than cutting with “lots of more rather “very ripping type jagged,” on a cut . . with no other injuries did he see “one isolated . “rarely” long as was the case with John. body,” Jermaine, son
The defense called as a witness defendant’s seven-year-old time, At the Jermaine who was five old when the incident occurred. years testified, John at the house. Defendant and John got fight was living table, As John breaking glass. got up, glass fell onto coffee piece that was on the floor cut his neck. defendant’s 14-year-old daughter
The defense also called as witness She testified that who was 12 old at the time of the incident. years Kathy, home, door, John, came to the defendant who was not at their living when leave, each other. John threatened began told him to and the two then pushing table, glass, her onto the coffee breaking to kill defendant and pushed and ran out. John’s defendant. John then got up John fell on top told to call and defendant 911. fight, Kathy tried to break grandmother up rebuttal, her statement to Kathy prior the prosecution impeached at the living and that John was fight worker that she had not seen social home. family force to inflict likely of assault means of convicted defendant jury bodily
great injury.
II
I have no
with the
conclusion that
the trial court’s
quarrel
majority’s
admission of John’s two statements to
Mullin violated defendant’s
Deputy
Constitution,
under the Sixth Amendment
to the
right,
federal
to confront the
v.
witnesses
her. In
Washington
against
(2004)
Dr. Russell’s of John’s account of the assault was description quite pithy: mother,” “he had been held down his cut grandmother and his a total of contrast, 13 words. John’s to Mullin By tape-recorded Deputy detailed, 2,000 more (12 than words of quite taking up pages transcript). details in that statement have been the may to It seems rather important jury. unusual that a would be 15-year-old boy held down while grandmother cut with broken his mother. Absent some being glass by how explanation that could have have jury might well that John happened, thought concocted the The circumstance that the statement to story. Mullin Deputy was recorded also could have been because the after significant, jury, voice, credible, sounded to John’s have that he listening concluded may determination the could not have made from Dr. Russell’s jury description what John had told him. have John’s Finally, jury may given story greater credence because it learned same account on three gave roughly Russell, different once to once occasions: Dr. Mullin in Deputy room, Thus, and once at the emergency station. hospital’s contrary John’s statements to Mullin were not cumula- majority, “largely Deputy ante, 993.) tive” of his statement to Dr. Russell. (Maj. p. opn., John had been the “evidence indicated According strongly to the majority, ante, at a domestic during argument.” (Maj. opn., broken injured by glass evidence, however, prosecu- fight of such 992.) There was little p. Mullin, two tion’s case John’s Deputy from apart separate True, the concedes were inadmissible. presented which majority defense John had brother and sister—that testimony John’s evidence—through mother, fell coffee table and that onto the they with his argued struggled if have But that never been presented and broke evidence glass top. John’s two court introduce the trial had not permitted prosecution *29 rested without to Mullin: The defense have might simply statements Deputy to brief out-of-court statement witnesses and that John’s calling any argued that defend- Dr. Russell was to reasonable doubt prove insufficient beyond ant had him. assaulted for of a “In a room acute treatment hospital emergency states: majority had to answer the injury, frightened, every
serious John reason visibly ante, 993, italics truthfully.” (Maj. opn., treating physician’s p. questions added.) not. As state- acknowledged John his recorded Perhaps. Perhaps Mullin, ment to he knew that a warrant his arrest on there was Deputy matter, unrelated and that he would be taken to hall. John also knew juvenile Mullin had come to to the circumstances investigate Deputy hospital to to of his and it is reasonable infer that John Dr. Russell injury, expected on to of the Mullin John would about the cause pass anything say Deputy Thus, defendant, if John was the initial in his encounter with injury. aggressor he give have had reason to Dr. Russell an inaccurate account Moreover, incident told the John because of fear if he truth. prosecution because, account, had reason to at defendant his own she had be angry him at his berated and had tom his shirt before the occurred. His injury anger mother could him blame his injury. have her for falsely prompted Furthermore, to the admissibility discussions during pretrial pertaining Mullin, John’s Dr. Russell and defense counsel com- statements to Deputy so, If have mented John had been John diagnosed schizophrenic. may from caused the manner suffered a delusion that him to describe inaccurately short, chance to in which because the defense had no was injured. John, Dr. cannot be cross-examine Russell veracity ascertained.
It that if the trial excluded two may well be court had John’s separate him, the jury Mullin defendant’s assault on describing Deputy have would still have found defendant But could also guilty. jury erroneously defendant. Because John’s two admitted statements acquitted case Mullin were the most evidence Deputy important prosecution’s v. defendant, (Chapman say I cannot a reasonable doubt” against “beyond excluded, California, been 24) they jury p. would nevertheless have convicted I her. would therefore reverse the judg-
ment of the Court of Appeal.