United States v. Latu

46 F.4th 1175

UNITED STATES of America, Plaintiff-Appellee,

v.Taloa LATU, Defendant-Appellant.

No. 19-10069

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 7, 2022 Honolulu, Hawaii

Filed August 31, 2022

DeAnna S. Dotson (argued), Dana Point, California, for Defendant-Appellant.

Michael Nammar (argued), Assistant United States Attorney; Marion Percell, Chief of Appeals; Judith A. Philips, Acting United States Attorney; United States Attorney's Office, Honolulu, Hawaii; for Plaintiff-Appellee.

Before: Kim McLane Wardlaw, Jacqueline H. Nguyen, and John B. Owens, Circuit Judges.

NGUYEN, Circuit Judge:

On September 11, 2016, Taloa Latu, an inmate at the Federal Detention Center (FDC) in Honolulu, repeatedly punched and kicked inmate Joseph Yamaguchi. Yamaguchi suffered multiple serious injuries, including a broken jaw. Latu was convicted following a jury trial of assault resulting in serious bodily injury, a violation of 18 U.S.C. § 113(a)(6).

At trial, Yamaguchi did not testify. The district court nevertheless admitted Yamaguchi's statements—that he was assaulted and that his pain level was an eight out of ten—through the testimony of a nurse and a surgeon who treated him. Latu argues that admitting this testimony violated the rule against hearsay and the Confrontation Clause of the Sixth Amendment.

We hold that the district court properly admitted the statements made by Yamaguchi to his medical providers. The statements fell within the hearsay exception for statements made for purposes of medical diagnosis or treatment under Fed. R. Evid. 803(4). The admission of these statements did not violate the Confrontation Clause because their primary purpose was to evaluate and treat Yamaguchi's injuries rather than to establish past facts for trial. We therefore affirm Latu's conviction.¹

I.

A. Factual Background

Latu's assault of Yamaguchi was captured on surveillance video played to the jury. Just before the incident, Latu was seen pacing back and forth and peering into a recreation room in the FDC. Inside the room, a handful of inmates including Yamaguchi were seated around a table playing cards. Latu opened the door and immediately began punching and kicking Yamaguchi, who fell to the floor. Once the attack ended, struggling to steady himself, Yamaguchi limped away with a large bloodstain on his shirt.

An hour and twenty-five minutes later, FDC staff saw visible swelling to Yamaguchi's jaw and eye and promptly sent him to the medical unit. Yamaguchi's jaw had been fractured in two places, requiring same-day surgery. Yamaguchi had also suffered face and rib fractures, face and eyebrow lacerations, and a concussion.

Yamaguchi saw Nurse Daniel Chi at the FDC health unit. Chi's practice is to perform "a head-to-toe assessment to determine what was injured, extent of injury, and then course of action." As part of that assessment, Chi asks about the cause of a patient's injuries because the "[m]echanism of injury can also play into the severity of the injury." When asked, Yamaguchi initially responded that he had fallen out of bed. But given the extent of the injuries, Chi did not believe that explanation and pressed further. Yamaguchi then admitted that he was assaulted.

Nurse Chi's practice is also to ask patients about their subjective pain level. He explained that "pain is a very subjective type of symptom" and that an initial pain level provides a "starting point" to monitor during treatment. When asked, Yamaguchi said that his pain level was an eight out of ten, with his jaw as his greatest source of pain.

Yamaguchi was transported that same day to the emergency room at Queen's Medical Center. He was treated there by oral and maxillofacial surgeon Dr. James Michino. Dr. Michino's "first question" with patients is always "what happened." He tries "to gather as much information as possible regarding the traumatic injury." That includes the cause of a patient's injuries because "the amount of force" involved in an injury can alert him to "possible injuries that could get missed." When Dr. Michino asked, Yamaguchi responded that while he did not "remember the details," he "was assaulted" and "essentially lost consciousness."

B. Procedural History

Latu was charged with assault resulting in serious bodily injury under 18 U.S.C. § 113(a)(6). Yamaguchi did not testify at trial. The government instead moved to admit his statements about the cause of his injuries and his pain level through the testimony of his medical providers under Fed. R. Evid. 803(4). Over Latu's objection, the district court admitted the statements.

The jury returned a guilty verdict, and the district court sentenced Latu to 96 months' imprisonment. Latu timely appealed.

II. Jurisdiction and Standard of Review

We have jurisdiction under 28 U.S.C. § 1291. We review evidentiary rulings for abuse of discretion, see United States v. Perez , 962 F.3d 420, 434 (9th Cir. 2020), and Confrontation Clause rulings de novo, see United States v. Fryberg , 854 F.3d 1126, 1130 (9th Cir. 2017).

III. Federal Rule of Evidence 803(4)

Latu contends that Nurse Chi and Dr. Michino's testimony about Yamaguchi's statements was hearsay and did not meet the exception for statements for medical diagnosis or treatment. Rule 803(4) applies to "[a] statement that: (A) is made for—and is reasonably pertinent to—medical diagnosis or treatment; and (B) describes medical history; past or present symptoms or sensations; their inception; or their general cause." Fed. R. Evid. 803(4).

This hearsay exception reflects the view that statements for medical diagnosis or treatment "are made under circumstances in which the declarant would be particularly unlikely to lie." United States v. Kootswatewa , 893 F.3d 1127, 1132 (9th Cir. 2018). That is because a patient has a "selfish interest in obtaining appropriate medical care." Id. "An individual seeking medical care is unlikely to lie about her medical history or symptoms because she knows that ‘a false statement may cause misdiagnosis or mistreatment.’ " Id. (citation omitted); see McCormick on Evidence § 277 (8th ed. 2022) (discussing "selfish treatment motivation").

Yamaguchi's statements to Nurse Chi and Dr. Michino plainly fall within both prongs (A) and (B) of Rule 803(4). Nurse Chi and Dr. Michino both testified that Yamaguchi told them that the "general cause" of his injuries was an assault. Fed. R. Evid. 803(4)(B). Yamaguchi's statements were made to medical providers during their clinical assessment of his traumatic injuries within hours of receiving those injuries. Both Nurse Chi and Dr. Michino testified that they asked about the cause of Yamaguchi's injuries because it would inform their evaluation and treatment. Nurse Chi explained that the cause helped him determine an injury's severity, and Dr. Michino stated that knowing the cause would help him avoid missing possible injuries. This context demonstrates that Yamaguchi's statements were "made for—and [were] reasonably pertinent to—medical diagnosis or treatment." Fed. R. Evid. 803(4)(A). See Kootswatewa , 893 F.3d at 1133 ("An adequate foundation may be laid under Rule 803(4) by introducing objective evidence of the context in which the statements were made ..., includ[ing] testimony provided by the medical professional who conducted the examination.").

Nurse Chi also testified that Yamaguchi said his pain level was an eight out of ten. That statement was about "present symptoms or sensations," Fed. R. Evid. 803(4)(B), and it was made during the same clinical assessment described above. Nurse Chi testified that he asks about a patient's pain level because pain is subjective and an initial level provides a "starting point" to track during treatment. Yamaguchi's statement about his pain level was thus also "made for—and [was] reasonably pertinent to—medical diagnosis or treatment." Fed. R. Evid. 803(4)(A) ; see United States v. Santos , 589 F.3d 759, 763 (5th Cir. 2009) (affirming admission of nearly identical pain level testimony under Rule 803(4) ).

Therefore, we hold that the district court properly admitted Nurse Chi's and Dr. Michino's testimony about Yamaguchi's statements under Rule 803(4).

IV. Confrontation Clause

Latu next argues that the admission of Yamaguchi's statements violated the Confrontation Clause of the Sixth Amendment. The Confrontation Clause provides that "[a] witness's testimony against a defendant is ... inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination." Fryberg , 854 F.3d at 1134 (quoting Melendez-Diaz v. Massachusetts , 557 U.S. 305, 309, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009) ). But "only statements whose ‘primary purpose’ was testimonial trigger the constitutional requirement." Id. (quoting Ohio v. Clark , 576 U.S. 237, 244, 135 S.Ct. 2173, 192 L.Ed.2d 306 (2015) ) (emphasis added). Testimonial statements resemble "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." Crawford v. Washington , 541 U.S. 36, 51, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (citation omitted). Examples can include affidavits, depositions, prior testimony, or police interrogation. See United States v. Esparza , 791 F.3d 1067, 1071–72 (9th Cir. 2015).

To assess whether statements are testimonial, we apply a " ‘primary purpose’ test." Clark , 576 U.S. at 244, 135 S.Ct. 2173. We ask whether out-of-court statements "result from questioning, ‘the primary purpose of [which was] to establish or prove past events potentially relevant to later criminal prosecution,’ " and whether they are " ‘functionally identical to live, in-court testimony,’ ‘made for the purpose of establishing or proving some fact’ at trial." Lucero v. Holland , 902 F.3d 979, 989 (9th Cir. 2018) (first quoting Davis v. Washington , 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) ; and then quoting Melendez-Diaz , 557 U.S. at 310–11, 129 S.Ct. 2527 ). "[W]e...