State v. Fentahun

STATE OF WASHINGTON, Respondent, v. NEGATU ABEBE FENTAHUN, Appellant.

No. 69918-1-I

Court of Appeals of Washington, Division 1

August 18, 2014

UNPUBLISHED OPINION

Leach J.

Negatu Fentahun appeals his conviction for assault in the second degree. He claims that the trial court violated his confrontation clause rights by admitting a tape of a 911 call and statements that a nontestifying witness made to an emergency room social worker. Fentahun also challenges the admission of this nontestifying witness's statements under ER 803(a)(4) because the witness did not make these statements for the purpose of his own medical diagnosis or treatment. Because Fentahun fails to show that the admission of the challenged evidence was improper, we affirm.

FACTS

On July 13, 2010, Fentahun got into an argument with his 28-year-old sister, Wosenyelesh, at their residence. When Fentahun jumped forward and hit Wosenyelesh on the head, she fell down. He then jumped on her back, grabbed her head, and struck her multiple times in the face with a closed fist. Fentahun then fled the residence.

Fentahun and Wosenyelesh's brother Amanuel witnessed the incident. Amanuel called 911. When the 911 operator asked what happened, Amanuel stated, "See my brother beat up my sister so bad, her two teeth went out, and she got like a big eye uh a eye swollen, " and also stated, "Please hurry up okay." He told the operator, "She's awake, but she like blacked out. You could . . . she needs help right now please." He also stated that the incident occurred "[l]ike three, four minute ago" and that Fentahun had run away. Amanuel provided Fentahun's name and description and told the 911 operator that Fentahun had no weapons.

Wosenyelesh lost one tooth and two others remained loose in her mouth. She had swelling and bleeding around her mouth and around her left eye. She also had a cut underneath her left eye.

Paramedics transported Wosenyelesh to Harborview Hospital before police arrived. Amanuel rode in the ambulance to Harborview.

At Harborview, Wosenyelesh and Amanuel spoke with emergency room social worker Annie Drummond. Amanuel told Drummond about the events that he witnessed and that he tried to intervene but was unable to do so. After speaking with Drummond, Amanuel called the Seattle Police Department to file a report.

On July 19, 2010, Fentahun arrived at the police precinct and stated that his family told him police were looking for him. Fentahun told a police officer that his sister walked up behind him while he was arguing with his mother. When he turned around, his head collided with his sister's, and she fell onto a chair and hit her mouth. Fentahun told the officer that he was so mad after the argument with his mother that he left the house. The officer believed that Fentahun was describing the July 13 incident and asked him for identification. Police arrested Fentahun.

The State charged Fentahun with assault in the second degree with a special allegation of domestic violence. Wosenyelesh did not appear at trial, and Amanuel did not testify. A jury convicted Fentahun as charged, and the court imposed a standard range sentence.

Fentahun appeals.

STANDARD OF REVIEW

We review alleged confrontation clause violations de novo.^[1] We apply a harmless error analysis.^[2] The error is harmless if, considering the untainted evidence, we are convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error.^[3] We presume that the error is prejudicial, and the State bears the burden of proving beyond a reasonable doubt that the error did not contribute to the jury's verdict.^[4]

We review decisions on the admissibility of evidence under an abuse of discretion standard.^[5] An abuse of discretion exists "[wjhen a trial court's exercise of its discretion is manifestly unreasonable or based upon untenable grounds or reasons."^[6] A discretionary decision "is based 'on untenable grounds' or made 'for untenable reasons' if it rests on facts unsupported in the record or was reached by applying the wrong legal standard."^[7]

ANALYSIS

Fentahun claims that the trial court should have excluded as testimonial hearsay a tape of the 911 call and Amanuel's statements to Drummond.^[8] Under the federal confrontation clause a criminal defendant has the right to confront and to cross-examine adverse witnesses.^[9] The confrontation clause bars the admission of "testimonial" hearsay unless the declarant is unavailable to testify and the defendant had an earlier opportunity to cross-examine the declarant.^[10] This guarantees an adequate opportunity for effective cross-examination.^[11] The prosecution has the burden to establish that statements are not testimonial.^[12]

Although Washington courts have not adopted a comprehensive list of what qualifies as a testimonial statement, the courts have found that statements are testimonial in nature "when the circumstances objectively indicate that there is no ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution."^[13] "Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency."^[14]

To help decide if statements are not testimonial, the court considers (1) if the speaker was speaking about past events or current ones, as they occurred, requiring police assistance; (2) if a reasonable listener would conclude that the speaker was facing an ongoing emergency that required help; (3) the nature of the questions asked and answered; and (4) the interrogation's formality.^[15] A conversation can contain both testimonial and nontestimonial statements. A conversation to learn about any need for emergency assistance can become testimonial when the emergency appears to have ended or the information necessary to meet the emergency has been obtained.^[16] Witness statements to a medical doctor are not testimonial, and their admission does not violate the confrontation clause (1) when made for the purpose of diagnosis and treatment, (2) when no evidence indicates that the witness expected the statements to be used at trial, and (3) when the doctor is not employed by or working with the State.^[17]

Fentahun claims that the trial court should have excluded the 911 call as testimonial hearsay because a conversation that "began to determine the need for emergency assistance" "quickly evolved into testimonial statements divorced from getting medical help for the caller's sister. At that point the circumstances objectively indicate the primary purpose was is [sic] to establish or prove the facts of a past crime in order to identify the perpetrator." He argues that the caller described a past event. He claims that the caller "was only asked a couple of questions regarding [Wosenyelesh]'s medical condition. He was asked if she needed a medic and whether she was conscious" and asserts, "The rest of the questions were related to the incident and identity of the assailant. The questions and the answers that were elicited were not necessary to resolve a present emergency." Fentahun also alleges that because the caller told the 911 operator that the assailant had left and had no weapons, no ongoing emergency existed. He contends that "the questioning was less formal than a face-to-face interrogation with police, the questions were pointed and direct. Few of the caller's statements were spontaneous, and the caller was speaking from a place of safety."

We reject Fentahun's arguments and conclude that the statements in the 911 call were not testimonial. First, the record indicates that the caller sought medical help as a result of an incident that occurred "[l]ike three, four minute[s] ago." A speaker may speak contemporaneously of past events if the speaker connects the past events with ongoing ones.^[18]

Second courts recognize two ways that an ongoing emergency may exist: first, if the crime is still in progress and, second if the victim is in danger, either because of the need for medical assistance or because the defendant poses a threat.^[19] Although the caller reported that Fentahun ran away and had no weapons, a reasonable listener could conclude that an ongoing emergency existed based on the caller's statements: "[M]y brother beat up my sister so bad, her two teeth went out, and she got like a big eye uh a eye swollen"; "Well my brother beat up my sister so bad so she need a paramedic right now"; and "She's awake, but she like blacked out. You could ... she needs help right now please." These statements show a concern for Wosenyelesh's well-being because of her need for medical assistance.

Third the caller focused on his sister's need for medical attention. He did not volunteer information about the assailant but provided the description only in response to the 911 operator's questions. The caller discussed no facts about the assault and did not ask police to pursue or to prosecute the assailant. Although, when viewed in isolation, the questions about the incident and the assailant's identity appear as an attempt to elicit testimony, the sequence of questions indicates that the 911 operator asked the questions to determine if police would "be encountering a violent felon" when responding and how they might resolve the situation.^[20]

Fourth interactions with 911 operators are typically informal.^[21] The caller's statements, some of which appear emphatic, show concern about getting medical help for his sister. He made these statements from the location where the assault took place, which was not secure. G...