State v. Hurtado

294 P.3d 838

STATE of Washington, Respondent,

v.Hector R. HURTADO, Appellant.

No. 67478–1–I.

Court of Appeals of Washington, Division 1.

Feb. 19, 2013.

Lila Jane Silverstein, Elaine L. Winters, Washington Appellate Project, Seattle, WA, for Appellant.

Andrea Ruth Vitalich, King County Prosecutor's Office, Seattle, WA, for Respondent.

PUBLISHED IN PART

COX, J.

¶ 1 Hector Hurtado appeals his judgment and sentence following his conviction of second degree assault, witness tampering, and two counts of domestic violence misdemeanor violation of a court order. He claims that his Sixth Amendment right to confront witnesses against him as well as his similar right under the state constitution were violated. He also claims that the trial court abused its discretion by admitting inadmissible hearsay, jail telephone recordings of him, and a 911 call recording from the home of the victim. He further claims the jail telephone recording violated his state constitutional right to privacy. Finally, Hurtado claims that the domestic violence designation in his judgment and sentence must be stricken because there was no jury finding that the second degree assault conviction was a crime of domestic violence.

¶ 2 We hold that the domestic violence victim's statements to medical personnel at the hospital, which were made while a police officer was present and collecting evidence of the alleged crime, were testimonial. Admission of such evidence violated Hurtado's federal constitutional right to confront this witness against him. But the admission of such statements was harmless beyond a reasonable doubt. Hurtado's other claims have no merit. We affirm.

¶ 3 In 2010, the North King County Regional Communications Center received a 911 call. The dispatcher could hear an argument between a male and female, but no one responded to the dispatcher's questions. The 911 system identified the call as coming from J.V.'s residential address.

¶ 4 Two police officers went to this address and found J.V. standing outside the residence. J.V.'s face was swollen and bruised, and the officers called medics.

¶ 5 The police officers saw what appeared to be drops of blood in the kitchen and living room. One of the officers broadcasted a name and description based on information that J.V. provided when the officers responded to the call. Another officer found Hurtado at a bus stop near J.V.'s home. When the officer arrested him, the officer noticed what appeared to be blood on one of Hurtado's sleeves.

¶ 6 Meanwhile, the medics who responded to the officers' call took J.V. to a hospital. One of the responding police officers followed J.V. to the hospital. Once there, the officer stayed with J.V. the entire time she was there except when she had “an MRI or a CAT scan.” This officer also collected J.V.'s tank top at the hospital because it had blood on it. This clothing was admitted into evidence at trial.

¶ 7 During her examination at the hospital, J.V. told medical personnel that her boyfriend hit her. The police officer was in the hospital room when she made this statement. J.V. was diagnosed with a broken nose, and she was referred to a social worker.

¶ 8 After Hurtado was arrested, he made telephone calls from jail. The jail recorded these calls in accordance with standard jail protocols. This included warnings to Hurtado and the other parties to the calls that they were being recorded.

¶ 9 In one call, Hurtado told a woman, who was not J.V., that he “beat the hell out of” someone. He also said to “tell her not to show up on that day” because “they go and pick her up and they take her probably here.”

¶ 10 Based on the recordings, the State determined that Hurtado had several conversations with J.V. when a no-contact order was in place.

¶ 11 By amended information, the State charged Hurtado with second degree assault—domestic violence, tampering with a witness, and two counts of domestic violence misdemeanor violation of a court order.

¶ 12 At trial, J.V. did not testify. It is not clear from the record why the State did not call her to testify. A jury convicted Hurtado of all charges.

¶ 13 Hurtado appeals.

CONFRONTATION CLAUSE

¶ 14 Hurtado argues that his second degree assault conviction should be reversed because his federal right to confrontation was violated. We hold that reversal is not warranted. Admission of J.V.'s statements to medical personnel during the course of treatment in the emergency room while the police officer was present and gathering evidence violated Hurtado's Sixth Amendment right to confront witnesses against him. But that error was harmless beyond a reasonable doubt.

¶ 15 The Sixth Amendment Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” ¹ “[T]he ‘principle evil’ at which the clause was directed was the civil-law system's use of ex parte examinations and ex parte affidavits as substitutes for live witnesses in criminal cases.” ² This practice “denies the defendant the opportunity to test his accuser's assertions ‘in the crucible of cross-examination.’ ” ³

¶ 16 In Crawford v. Washington, the U.S. Supreme Court held that the right to confrontationrenders “testimonial” statements by a nontestifying witness inadmissible unless the witness is unavailable and was previously subject to cross-examination by the defendant.⁴ But the Crawford Court left “for another day any effort to spell out a comprehensive definition of ‘testimonial.’ ” ⁵

¶ 17 This court reviews an alleged violation of the Confrontation Clause de novo.⁶ When a violation has occurred, this court engages in a harmless error analysis under the constitutional standard.⁷

Testimonial Statements

¶ 18 Hurtado argues that J.V.'s statements to the emergency room nurse that her boyfriend hit her were testimonial. We agree.

¶ 19 The Confrontation Clause only applies to testimonial statements or materials.⁸ A testimonial statement is a “ ‘solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ ” ⁹ The United States Supreme Court has not yet provided a comprehensive definition of what constitutes a testimonial statement.¹⁰ But the Court has listed “three possible formulations for the ‘core class' of testimonial statements:

[1] ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; [2] extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; [3] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” ¹¹

¶ 20 In the absence of a comprehensive definition of “testimonial,” the Washington supreme court has developed two tests to determine whether an out-of-court statement is testimonial. First, when a declarant makes a statement to a nongovernmental witness, a court uses the “declarant-centric standard” announced in State v. Shafer:

“The proper test to be applied in determining whether the declarant intended to bear testimony against the accused is whether a reasonable person in the declarant's position would anticipate his or her statement being used against the accused in investigating and prosecuting the alleged crime. This inquiry focuses on the declarant's intent by evaluating the specific circumstances in which the out-of-court statement was made.” ¹²

Second, when a declarant makes a statement to law enforcement, a court uses the “primary purpose” test:

“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. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” ¹³

¶ 21 For statements made to medical personnel, all three divisions of this court have held that these statements are nontestimonial when the following factors are present: “(1) where they are made for diagnosis and treatment purposes, (2) where there is no indication that the witness expected the statements to be used at trial, and (3) where the doctor is not employed by or working with the State.” ¹⁴ The second and third factors incorporate Shafer's “declarant-centric standard” because the declarant must make the statement to a nongovernmental witness.

¶ 22 The State has the burden of establishing that a statement is nontestimonial.¹⁵

¶ 23 Here, the emergency room nurse, Venus Chenoweth, who testified at Hurtado's trial, stated the following during direct examination:

Q. So you said you changed nurses when you came to [J.V.]?

A. Yes.

Q. Did you receive information from the previous nurse or doctor before you talked to her?

A. Yes. We're supposed to give a nurse-to-nurse report. Because the off-going nurse is supposed to report to the on-coming nurse.

Q. Okay. And is that information contained in exhibit 1?

A. Yes.

Q. What information were you given by this member of the team before you saw her.

A. I was—

DEFENSE COUNSEL: Objection; hearsay.

JUDGE: Overruled.

BY PROSECUTOR:

Q. Continue.

A. I was told the patient in room 123 was assaulted by her boyfriend; police is in there; she's got bruises every; she's got multiple abrasions and bumps all over her face; she was hit in the face with his fists. And so, it's my turn to make my assessment, so I went in and I talked to her briefly—

DEFENSE COUNSEL: Objection; narrative.

JUDGE: Sustained. Try to break it up a little bit.

Q. So you went...