State v. Burke

431 P.3d 1109

STATE of Washington, Respondent,

v.Ronald Delester BURKE, Appellant.

No. 50053-1-II

Court of Appeals of Washington, Division 2.

December 27, 2018

Stephanie C. Cunningham, Attorney at Law, 4616 25th Ave. Ne # 552, Seattle, WA, 98105-4183, Counsel for Appellant

Mark Von Wahlde, Pierce Co. Pros. Attorney Office, 5501 6th Ave., Tacoma, WA, 98406-2603, Maureen C. Goodman, Pierce County Prosecuting Atty., 930 Tacoma Ave. S Rm 946, Tacoma, WA, 98402-2171, Counsel for Respondent

PUBLISHED OPINION

Johanson, J.

¶ 1 Ronald Delester Burke appeals his jury trial conviction for second degree rape by forcible compulsion. He argues that (1) the admission of the now-deceased victim’s testimonial statements to a sexual assault nurse examiner (SANE nurse) violated his right to confront the witness and (2) the trial court erred when it admitted the victim’s statements to the SANE nurse under ER 803(a)(4) as statements made for the purpose of medical diagnosis or treatment. The parties also dispute whether the declarant-centric test established in State v. Shafer , 156 Wash.2d 381, 390 n.8, 128 P.3d 87 (2006), or the primary purposes test from Ohio v. Clark , ––– U.S. ––––, 135 S.Ct. 2173, 192 L.Ed.2d 306 (2015), and Davis v. Washington , 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), applies to the confrontation clause claim.

¶ 2 We hold that (1) the primary purpose test applies to the constitutional claim, (2) the victim’s statements to the SANE nurse were testimonial and violated the confrontation clause, and (3) the error was not harmless under the constitutional harmless error standard. We do not reach the ER 803(a)(4) issue. Accordingly, we reverse.

FACTS

I. BACKGROUND

¶ 3 At 1:24 AM on July 3, 2009, KEH arrived at Tacoma General Hospital’s emergency room and reported that she had just been raped in nearby Wright Park. KEH was intoxicated when she arrived at the hospital. She was homeless and was known to reside in or near Wright Park.

¶ 4 Social worker Bettye Craft contacted KEH about 20 minutes after KEH’s arrival in the emergency room. KEH was crying, upset, and had leaves and grass in her hair. After KEH asserted that she had been raped, Craft contacted the police.

¶ 5 Tacoma Police Officer Khanh Phan contacted KEH in her room at about two hours after her arrival. According to Officer Phan, KEH was "extremely intoxicated" and "kind of incoherent." 8 Verbatim Report of Proceedings (VRP) at 838, 846-47. Although KEH was slurring her speech, Officer Phan could understand her if she spoke slowly. Officer Phan observed that KEH had dirt stains on her pants, but she did not appear to be injured.

¶ 6 KEH told Officer Phan that the incident had occurred near the restrooms at the park and gave a description of her attacker.¹ After interviewing KEH, Officer Phan went to Wright Park to examine the crime scene. Officer Phan did not find anyone matching the suspect’s description or any evidence at the park.

¶ 7 When the SANE nurse Kay Frey initially contacted KEH in the emergency room around 7:00 AM, Frey did not observe that KEH exhibited any impairment. Frey said that she would not be able to see KEH until later that day. KEH agreed to wait. According to Frey, KEH was able to speak, but she was tired.

¶ 8 At about 8:11 AM , registered nurse Carol Aquino-Smith spoke to KEH in the emergency room. KEH was sleeping when Aquino-Smith arrived, but when KEH awoke she appeared "alert and oriented." 7 VRP at 688. When Aquino-Smith asked KEH if she knew why she was in the hospital, KEH "stated she was [in the hospital] because she was raped last night in the park." 7 VRP at 689. KEH’s blood test collected at about 7:45 AM, showed that her blood alcohol level was 0.160, approximately twice the legal limit for driving. A drug screening also showed that she had tetrahydrocannabinol (THC) in her system. But KEH did not appear to Aquino-Smith be under the influence of marijuana.

¶ 9 KEH was medically cleared to leave the emergency room at 11:13 AM. At this point, KEH had been examined by a physician, the appropriate testing had been ordered, and no further emergency room treatment was required. But KEH voluntarily remained in the hospital waiting to be examined by Frey.

¶ 10 At about 4:00 PM, Frey began the sexual assault forensic examination. Frey observed abrasions to KEH’s left elbow and right knee, some redness on her left inner thigh, some abrasions or cuts on her vulva, and a laceration to the upper part of her cervix.

¶ 11 During the examination, Frey obtained a history from KEH. Frey later testified that the history was "like any medical history" and was a personal statement about what happened. 6 VRP at 607. KEH described the incident to Frey. And Frey collected samples that could contain deoxyribonucleic acid (DNA) evidence and took KEH’s underwear. The DNA evidence taken from KEH’s underwear included female DNA that matched KEH and male DNA from sperm that did not match anyone known to law enforcement at that time.

¶ 12 In May 2011, the DNA was reevaluated and the male DNA matched Burke’s DNA profile. When officers attempted to contact KEH about the DNA match, they learned that KEH had died of an unrelated illness in April 2011.

¶ 13 In September 2014, Tacoma Police Department Detectives Bradley Graham and Lindsey Wade interviewed Burke, who was in jail in eastern Washington. During this interview, Burke admitted to having lived in Tacoma in 2009 and to having visited Wright Park. But Burke denied having been to the park without his girlfriend, having had sexual intercourse with anyone in the park, or knowing why his DNA would be found at the scene of a sexual assault that occurred in the park in 2009.

II. PROCEDURE

¶ 14 The State charged Burke with second degree rape by forcible compulsion. The case proceeded to a jury trial.

A. MOTION TO ADMIT KEH’S STATEMENTS TO FREY

¶ 15 Because KEH was not available to testify, the State moved to admit KEH’s statements to Frey under ER 803(a)(4), the medical exception to the hearsay rule. Burke responded that admission of these statements would violate his right to confrontation under Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

¶ 16 At the motion hearing, Frey testified that she was a SANE nurse and that she had examined KEH. When the State asked Frey what the purpose of the exam was, she testified that there were two purposes—a forensic purpose and a medical care purpose. Specifically, she testified,

The purposes are to do the forensic piece: Photographing, taking a history, doing any DNA retrieval that could be done. Another purpose is to provide them with the medical care they need, subsequent to their assault, and provide support and connections for them via advocates and social workers and that kind of thing. So it’s to basically manage their case.

6 VRP at 545. But Frey testified that she did not provide general medical care, only medical care "specific to their sexual assault." 6 VRP at 565.

¶ 17 Frey further testified that taking a history from the patient regarding what had happened was "probably the most important" part of the medical examination. 6 VRP at 545. When asked why it was so important, Frey responded,

Well, this is just medical training in general. History guides everything, and that’s true for sexual assault patients as well. So what they tell you, what they can tell you, what they aren’t able to tell you, directs you further to what they might need, medically, to figure it out.

6 VRP at 545.

¶ 18 Frey further stated that the history she obtains from the patient can provide additional details about their case and can govern what medications are needed or where to look for injuries. She opined that a patient’s "history" was "[a]bsolutely" vital and that it was "the tenet for healthcare in general." 6 VRP at 546. Frey testified that KEH’s exam revealed an additional injury—the cervical laceration that required additional medical consultation.

¶ 19 Frey also testified that she was paid by the hospital, that she did not take direction from law enforcement, and that law enforcement was not present at the examination. But on cross-examination, Frey testified that the funding for the forensic examination was "supported through crime victims associations" and that these funds included money from the federal government that was disbursed by the State. 6 VRP at 558.

¶ 20 Also on cross-examination, Burke introduced several exhibits that the trial court admitted for purposes of the hearing. The first exhibit, exhibit 19A, was the "[f]orensic [e]valuation" patient information sheet. This form contained four sections addressing (1) the emergency department information, (2) agency information, (3) discharge planning, and (4) post-assault follow up. The emergency department information included a notation that KEH had walked to the emergency room from Wright Park after being assaulted and that she was homeless. The agency information section noted that law enforcement had been contacted. The discharge planning section noted that KEH’s homelessness was an "[i]mmediate [s]afety [c]oncern" and that she would need to establish a safety plan before being discharged. Ex. 19A.

¶ 21 Exhibit 19B was titled "consent for forensic evaluation and treatment." (Capitalization omitted.) In this form, KEH acknowledged the following statement: "I, [KEH], have come to Tacoma General ... for a forensic evaluation to be performed by a Forensic Nurse Examiner and to include documentation of the assault , collection of evidence, nursing care and treatment limited to MultiCare Health System’s Forensic Nurse Examiner nursing protocols." Ex. 19B (emphasis added). KEH further acknowledged that she understood that a medical screening examination and care had to first be provided by an emergency department or primary care provider and that "[a] forensic evaluation does not include general medical care." Ex. 19B.

¶ 22 The consent form then described several aspects of a forensic...