State v. Burke

196 Wash.2d 712

478 P.3d 1096

STATE of Washington, Petitioner,

v.Ronald Delester BURKE, Respondent.

No. 96783-1

Supreme Court of Washington.

Argued: May 14, 2020

Filed: January 14, 2021

Theodore Michael Cropley, Pierce County Prosecuting Attorney, 930 Tacoma Ave. S. Rm. 946, Tacoma, WA, 98402-2171, for Petitioner.

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

David T. Sulzbacher, Attorney at Law, 1037 Ne 65th St. #80304, Seattle, WA, 98115-6655, Mark Bruns Middaugh, Attorney at Law, 710 2nd Ave. Ste. 250, Seattle, WA, 98104-1765, for Amicus Curiae Washington Association of Criminal Defense Lawyers.

James Morrissey Whisman, King County Prosecutor's Office, 516 3rd Ave. Ste. W554, Seattle, WA, 98104-2362, for Amicus Curiae Washington Association of Prosecuting Attorneys.

MONTOYA-LEWIS, J.

¶ 1 The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against [them]." U.S. CONST. amend. VI. The confrontation clause is concerned with " ‘witnesses’ against the accused," meaning those who " ‘bear testimony.’ " Crawford v. Washington , 541 U.S. 36, 51, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) (quoting 2 NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828)). A person accused of committing a crime has a right to be confronted by those who bear testimony against them. Thus, statements that are made out of court that are testimonial cannot be admitted for use against a criminal defendant unless the speaker is unavailable and the defendant had a prior opportunity for cross-examination. Davis v. Washington , 547 U.S. 813, 821, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006) (quoting and citing Crawford , 541 U.S. at 53-54, 51, 124 S.Ct. 1354 ). On the other hand, statements that are not testimonial do not implicate the confrontation clause. Id. To determine whether a statement is testimonial, we must identify its primary purpose. State v. Scanlan , 193 Wash.2d 753, 766, 445 P.3d 960 (2019) (quoting Ohio v. Clark , 576 U.S. 237, 245, 135 S. Ct. 2173, 192 L. Ed. 2d 306 (2015) ), cert. denied , ––– U.S. ––––, 140 S. Ct. 834, 205 L.Ed.2d 483 (2020).

¶ 2 In this case, a patient being treated for a sexual assault made statements to a sexual assault nurse examiner in the course of an exam with both medical and forensic purposes. We hold that under these circumstances, the primary purpose of nearly all of the statements was to guide the provision of medical care, not to create an out-of-court substitute for trial testimony. Thus, the statements were not testimonial, so their admission did not violate the Sixth Amendment. We further hold that the trial court did not abuse its discretion in admitting those statements under the hearsay exception for statements made for purposes of medical diagnosis or treatment. Finally, we hold that the trial court did err in admitting one statement describing the assailant, but the error was harmless. Accordingly, we reverse.

I. FACTS AND PROCEDURAL HISTORY

A. Factual Background

¶ 3 Around 1:30 a.m. on July 3, 2009, K.E.H. arrived in the emergency department at Tacoma General Hospital. She reported that she had just been raped in nearby Wright Park, where she resided. She was crying and had leaves and grass in her hair. Shortly after she arrived, a social worker called the police to report the rape. Around 3:15 a.m., Officer Khanh Phan arrived at the Tacoma General emergency department and interviewed K.E.H. about the incident. K.E.H. gave a description of the assailant and the location of the assault. After interviewing her, Officer Phan went to the park to look for evidence and possible witnesses or suspects but found no one.

¶ 4 K.E.H. was treated in the emergency department, where she received a CT (computed tomography ) scan and blood and urine tests. At about 11:15 a.m., K.E.H. was medically cleared by the emergency department to go on to the sexual assault exam. Sexual assault nurse examiner Kay Frey conducted K.E.H.’s sexual assault exam that afternoon.

¶ 5 DNA (deoxyribonucleic acid) testing revealed spermatozoa on K.E.H.’s underwear that had been collected during the sexual assault exam. In 2011, police matched the DNA on the underwear to Ronald Burke. Burke lived in an apartment near Wright Park in Tacoma in 2009 and admitted to having been to the park. However, he denied ever having sex there or getting in a fight with a woman there. In 2014,¹ Burke was charged with second degree rape by forcible compulsion.

¶ 6 K.E.H. died in 2011.

B. Procedural History

¶ 7 Burke was tried by a jury in 2016. The State sought to admit statements K.E.H. made to Nurse Frey during the sexual assault examination, relying on the hearsay exception for statements made for purposes of medical diagnosis or treatment. ER 803(a)(4). Burke objected to their admission, contending that the statements were testimonial, so their admission would violate his Sixth Amendment right to confrontation. The court held a hearing on the admissibility of the statements, ultimately ruling that all of the statements qualified as statements for the purpose of medical diagnosis or treatment under ER 803(a)(4) and that they were nontestimonial for purposes of the confrontation clause.

1. Hearing on Admissibility of the Statements

¶ 8 At the hearing, Nurse Frey testified that she was a nurse practitioner and that in 2009 she was working as a sexual assault nurse examiner at Tacoma General, where she provided forensic evaluations and medical care for patients who were victims of sexual assault. She recalled that on July 3, 2009, she arrived at the Tacoma General emergency department around 7:00 a.m. to see another patient. When she met K.E.H., Nurse Frey said that she would not be able to see K.E.H. for some time because she needed to see the other patient first, and K.E.H. said she wanted to wait. In the notes from the examination, Nurse Frey indicated that K.E.H. had waited for several hours while Nurse Frey was with another patient "because I don't want him to be out there doing this to someone else." Pretrial Mot. Ex. 19F. Nurse Frey began K.E.H.’s examination around 4:00 p.m. that day.

¶ 9 Describing her duties as a sexual assault nurse examiner, Nurse Frey explained that she would respond to calls from emergency departments "for patients^{[2 ]} who had presented there with a history of sexual assault, and we went out to whichever hospital called ... and did the forensic evaluations and medical care for them." 6 Verbatim Transcript of Proceedings (VTP) (Nov. 3, 2016) at 543. She also testified about the purpose of the exam she performed on K.E.H.:

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.

Id. at 545. Nurse Frey consulted the documents that comprised the sexual assault evaluation, which the court admitted for the purposes of the hearing.

¶ 10 The sexual assault exam began with a consent form, which K.E.H. signed. The consent form indicated under the "Medical Care" heading that "[a] medical screening examination and care must be provided by an emergency department or primary care provider prior to the forensic evaluation. A forensic evaluation does not include general medical care." Pretrial Mot. Ex. 19B. Nurse Frey explained that this meant patients needed to be "deemed capable of going forward" before beginning the sexual assault exam, where she would provide medication and treatment specific to sexual assault. 6 VTP (Nov. 3, 2016) at 555, 557. Under the heading "Forensic Evaluation," the consent form indicated that physical evidence, such as swabs and blood, may be collected; photographs may be taken and used for legal purposes; medication may be recommended ("including immunizations, anti-nausea medications, emergency contraception and medications to treat sexually transmitted infections"); the forensic nurse examiner may speak to the investigating officer only if the assault had been reported to law enforcement; and the detailed medical records ("photographs, lab results, written documentation") would be kept confidential. Pretrial Mot. Ex. 19B (emphasis omitted). Under the heading "Physical Evidence Disposition," the consent form indicated that all physical evidence collected during the forensic evaluation ("sexual assault kit, clothing") would be released to the agency investigating or prosecuting the assault. Id. (emphasis omitted).

¶ 11 After obtaining K.E.H.’s consent to perform the exam, Nurse Frey took K.E.H.’s patient history, which she recorded "word for word" on the forensic evaluation patient narrative. 6 VTP (Nov. 3, 2016) at 549. Nurse Frey testified that the patient history is

probably the most important thing.

....

... 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.

....

... Sometimes it governs medications, for example. Sometimes it governs where you might look for injuries more closely; that kind of thing.

Id. at 545-46. When Nurse Frey asked K.E.H. what happened in Wright Park, K.E.H. responded:

I was sitting there rolling myself a cigarette. I know he covered my mouth because I would have been screaming for help. I was taken to the ground. I don't know if he tried choking me or not. The next thing I knew I was taken to the ground, my pants were off and stuff and he was inside me. It was over and done with. I think he told me to keep my mouth shut. That's all I remember, then I came here. I walked over to the hospital.

Pretrial Mot. Ex. 19E...