D.E.R. v. State
| Decision Date | 15 December 2017 |
| Docket Number | CR–15–1183 |
| Citation | 254 So.3d 242 |
| Parties | D.E.R. v. STATE of Alabama |
| Court | Alabama Court of Criminal Appeals |
John Morgan Cunningham, Gadsden, for appellant.
Luther Strange, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.
On Application for Rehearing
This Court's opinion of April 28, 2017, is withdrawn, and the following is substituted therefor.
D.E.R. was convicted of first-degree sodomy, see § 13A–6–63, Ala. Code 1975, and sexual abuse of a child less than 12 years old, see § 13A–6–69.1, Ala. Code 1975. D.E.R. was sentenced to concurrent terms of 25 years' imprisonment for the sodomy conviction and 20 years' imprisonment for the sexual-abuse conviction. All appropriate fines and fees were assessed against D.E.R.
The evidence at trial tended to show the following: K.R., who was 13 years old at the time of trial, testified that she and K.L., her cousin, would sometimes visit D.E.R., a relative. One day in December 2011, when K.R. and K.L. were eight years old, they went to D.E.R.'s house to deliver his mail. K.R. testified:
(R. 210–12.) K.R. testified that she and K.L. then went to K.R.'s mother's house. K.R. told her mother that she had seen D.E.R. touch K.L., and K.R.'s mother informed K.L.'s parents. K.R. identified D.E.R. in court. On cross-examination, K.R. testified that she did not see D.E.R. kiss K.L.'s vaginal area, as K.L. alleged.
K.L., who was 12 years old at the time of trial, testified that she spent a lot of time with K.R., whose father lives near D.E.R.'s house. K.L. testified that she and K.R. visited D.E.R. on December 16, 2011, and that their visit was different than usual because D.E.R. "asked us if we let little boys play in our panties." K.R. left D.E.R.'s house, but K.L. remained seated on a couch in the living room. D.E.R. then moved in front of K.L. and put his hands in K.L.'s pants; D.E.R. touched K.L.'s genitals underneath her underwear. K.L. initially testified that she could not remember if D.E.R. touched her with any other part of his body. After some coaxing, K.L. testified as follows:
(R. 265–67.) After a break, K.L. continued testifying:
(R. 268–69.)
On cross-examination, K.L. had difficulty answering a number of D.E.R.'s questions; she could not recall several details of the events that occurred on December 16, 2011, and portions of her testimony were inconsistent with K.R.'s testimony. Specifically, K.L. testified:
(R. 280–81.)
T.L., K.L.'s mother, testified that D.E.R. is T.L.'s uncle. T.L. testified that, after K.R.'s mother contacted her, she and K.L.'s father went to K.R.'s mother's house. T.L. testified that K.L. was extremely upset and did not want to discuss the incident. K.R. told T.L. and the other adults present that D.E.R. had touched K.L. but not that he had placed his mouth on K.L. T.L. then took K.L. to Riverview Regional Medical Center ("RRMC") to "make sure that nothing else had happened" to K.L. T.L. testified that K.R. had not told her that D.E.R. had kissed K.L.'s vaginal region; instead, T.L. testified that she first became aware of that specific accusation during the trial.
Because of K.L.'s difficulty testifying, the State obtained the medical records from K.L.'s visit to RRMC and moved to introduce them under the rule of completeness, Rule 801(d)(1)(B), Ala. R. Evid., the child-victim-witness act, and "as medical business records." In response, D.E.R. argued that the records should not be admitted because, he said: (1) the patient-declarant statements1 contained therein were actually made by T.L.; (2) the statements contained in the records had already been testified to under oath; (3) the records were not certified; (4) the records were not properly authenticated absent witness testimony; and (5) the records were excluded by the trial court's previous ruling on D.E.R.'s motion in limine.2
The trial court ruled that the records were not excluded by D.E.R.'s motion in limine because until K.L.'s difficulty testifying the State had not intended to introduce the records. The court also noted that the records would need to be properly authenticated before they could be admitted, and the court recessed the trial until the following Monday.
When the trial reconvened, D.E.R. argued that the records were inadmissible, among other reasons, because they did not conform to a hearsay exception. The trial court questioned whether the records were admissible under Rule 803(4), Ala. R. Evid., and D.E.R. responded: (1) that K.L. testified to the same statements that were contained in the medical records and that the records would serve only to bolster K.L.'s testimony and could, therefore, prejudice D.E.R.; (2) that the person giving the patient-declarant statements in the records was not K.L.; (3) that statements of fault, such as identifying D.E.R. as the abuser, were inadmissible; (4) that the statements did not satisfy Rule 803(4), Ala. R. Evid.; and (5) that the health-care-professional declarant was not present to testify under oath or to be subject to cross-examination.
Ultimately, the trial court ruled that, under Rule 803(4), Ala. R. Evid., the State could read certain portions of the records to the jury. D.E.R. objected:
(R. 370.)
The State read for the jury the following excerpt from K.L.'s medical records:
(R. 373–74.)
During its deliberations, the jury asked the trial court if it could "see the hospital records," and the court informed the jury: (R. 509.) The jury subsequently found D.E.R. guilty of first-degree sodomy and sexual abuse of a child less than 12 years old.
On appeal, D.E.R. contends that the trial court abused its discretion when it admitted the statements contained in the medical records because, he says, the statements do not conform to Rule 803(4), Ala. R. Evid., and they were not properly authenticated. Specifically, D.E.R. claims that the statements did not meet the requirements set forth in Biles v. State, 715 So.2d 878 (Ala. Crim. App. 1997),3 because: (1) the physician to whom the patient-declarant statements were made did not testify at trial, and, therefore, there was no evidence to show that the patient-declarant statements were relied upon in diagnosing or treating K.L.; and (2) the records "indicate that both [K.L.] and [T.L.] made statements to the doctor ... [and,] without the testimony of the doctor, the Court cannot be certain which statements can be attributed to either person."4 (D.E.R.'s brief, p. 12.)
Initially, we address the State's claim that, because D.E.R. did not object to the admission of the records on the specific basis he now raises on appeal, he has failed to preserve his claim for appellate...
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