Lollis v. State

• Decision Date: 10 August 2007
• Docket Number: No. 06-06-00199-CR.,06-06-00199-CR.
• Citation: 232 S.W.3d 803
• Parties: Nathaniel D. LOLLIS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

232 S.W.3d 803

Nathaniel D. LOLLIS, Appellant, v. The STATE of Texas, Appellee.

No. 06-06-00199-CR.

Court of Appeals of Texas, Texarkana.

Submitted July 20, 2007.

Decided August 10, 2007.

L. Charles Van Cleef, Van Cleef Law Office, PC, Longview, for appellant.

Michael Morrow, Asst. County Atty., Richard Glaser, Fannin County Dist. Atty., Bonham, for appellee.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Chief Justice MORRISS.

In the course of essentially weekly counseling sessions occurring over a period of approximately three and one-half months during the middle of 2006, three-year-old A.T. told licensed professional counselor Reba Clark that Nathaniel D. Lollis "hurt her," "touched her in the private parts of her body," "broke her arm," and "mushed her like a nake [sic]" (the last act apparently accomplished with his foot). During those sessions, A.T.'s two older brothers, C.T. and J.J.T., also made comments to Clark that they, too, had received abuse from Lollis. Lollis pled guilty to intentionally or knowingly causing serious bodily injury to A.T. by hitting her head with his hand and kicking her abdomen with his foot, an assault that occurred in September 2005. This appeal arises out of the punishment phase of trial at which a Fannin County jury made a deadly weapon finding — that, during the assault on A.T., Lollis used or exhibited a deadly weapon (his foot) — and assessed Lollis' punishment at ninety-nine years' imprisonment. In two points of error, Lollis asserts the trial court erred in admitting Clark's testimony recounting the outcry statements of A.T. and her two brothers, notwithstanding the children's failure to testify or otherwise be available to be cross-examined, and in not granting a mistrial after A.T.'s maternal grandmother testified that A.T.'s mother was given drugs by Lollis.

We affirm the trial court's judgment because we hold (1) the children's statements to Clark were nontestimonial, and (2) the trial court did not abuse its discretion in denying a mistrial.

(1) The Children's Statements to Clark Were Nontestimonial

Lollis claims that the children's hearsay statements to Clark were admitted in violation of his constitutional right to confront the children. Testimonial hearsay statements of a person who does not appear at a defendant's trial are inadmissible unless that person was unavailable to testify and the defendant had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

Faced with a Crawford challenge,¹ we must determine whether the statements at issue are testimonial or nontestimonial in nature. Id.; Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App.2003). We review Crawford issues de novo. Wall v. State, 184 S.W.3d 730, 742 (Tex.Crim.App.2006); Delapaz v. State, 229 S.W.3d 795, 798 (Tex. App.-Eastland 2007, no pet.); see Lilly v. Virginia, 527 U.S. 116, 137, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999). Our determination whether a statement is "testimonial" uses the standard of an objectively reasonable declarant standing in the shoes of the actual declarant. Wall, 184 S.W.3d at 742-43.

The Confrontation Clause of the United States Constitution applies to witnesses who "bear testimony," that is "typically `[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.'" Crawford, 541 U.S. at 51, 124 S.Ct. 1354. Although the Crawford opinion does not provide a comprehensive definition of "testimonial," it does indicate that the term covers "ex parte in-court testimony or its functional equivalent . . . extrajudicial statements contained in formalized testimonial materials" such as "prior testimony at a preliminary hearing, before a grand jury, or at former trial; and . . . police interrogations." Id. at 52, 124 S.Ct. 1354. The timing, purpose, and setting of a challenged statement can be relevant considerations when determining whether the statement's primary purpose is testimonial. See Davis v. Washington, ___ U.S. ___, 126 S.Ct. 2266, 2273, 165 L.Ed.2d 224 (2006).

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.

Id. While it is clear that nonemergency police interrogations of normal adults ordinarily² produce testimonial statements, the appropriate test when classifying statements such as have been challenged here — statements made by young children, not in response to police interrogation — is less clear.³

A discernible pattern has developed in cases evaluating statements made not in actual police interrogations, but in a variety of other situations, involving potentially mixed motivations, that, when a forensic or investigatory motive predominates, the resulting statements are testimonial; when therapeutic or healing motive predominates, statements are not testimonial. See, e.g., United States v. Peneaux, 432 F.3d 882, 896 (8th Cir.2005) (child victim's statements to treating physician and to foster parent paid by State not testimonial; absence of forensic interview noted); State v. Vaught, 268 Neb. 316, 682 N.W.2d 284, 291-92 (2004) (statement not testimonial when made to physician rendering medical services, not investigating). Compare State v. Snowden, 385 Md. 64, 867 A.2d 314, 330 (2005) (statement testimonial when made to social worker working with police in focused effort to obtain statement; therapeutic motivation present but subordinate to investigatory motivation).

Various factors have been used in determining whether the primary purpose of a statement was to get or give testimony or to accomplish some other purpose. The following factors are illustrative of the inquiry, but not exhaustive:

(A) whether the statement was made in a formal and structured setting;⁴

(B) the purpose of the interrogator;⁵

(C) whether the statement was spontaneous (e.g., "plea for assistance") or elicited by others;⁶

(D) whether the police or the declarant initiated the conversation;⁷

(E) the sophistication and maturity of the declarant;⁸

(F) whether the declarant was a victim or an observer;⁹

(G) whether the statement was made to a uniformed police officer, a governmental agent, or a friend or acquaintance;¹⁰

(H) the degree to which law enforcement was involved in obtaining the statement;¹¹

(I) whether the statement involved more than a routine and objective cataloging of unambiguous factual matters;¹² and

(J) where the statements were made (i.e., the declarant's house, a squad car, or the police station).¹³

There is no evidence that the statements challenged by Lollis were made in any formal setting or that Clark was actually asking questions that elicited the statements. Nothing suggests that Clark engaged in any structured questioning or investigation such as police officers or detectives tend to do after an emergency ceases. While evidence suggests that Clark likely initiated the conversations, Clark testified that her purpose was therapeutic, that is, treatment of the children, not the perpetuation of testimony. The three children made their statements to Clark in the context of counseling over approximately three and one-half months of approximately weekly counseling sessions. The children were unsophisticated and immature, and each was a victim within the context of the statement each made. Here, the statements were made by very young children — A.T. was three years old, and her brothers were five and seven, respectively — to Clark, a licensed professional counselor and family therapist, in the course of treatment to deal with behavioral problems and abuse issues. While one could portray Clark as an agent of government, she practices as a sole proprietor and independent contractor, not as an employee of any agency. Her obligations were to provide treatment to the children. She approached her counseling subjects to put them at ease and to befriend them, in other words, to play the role of a friend rather than an imposing governmental figure. Clark accomplished that counseling by using art activities (including their drawing pictures and using figures), play therapy, the reading of books to or with the children, and various activities to make the children feel comfortable and express their feelings. No evidence suggested that law enforcement was involved in obtaining the statements. No evidence showed where the statements were made, but the evidence suggests it was in a comfortable environment; one statement was made while on a sofa. But see People v. Vigil, 104 P.3d 258, 262-63 (Colo.Ct.App.2004) (child's videotaped statement to officer, although in relaxed setting, testimonial). Clark specifically connected the outcry statements to the children's treatment.

The evidence suggests that Clark's regular counseling sessions with these three children were intended primarily as therapy to assist the children in recovering from abusive experiences. The alternative reading — that the sessions constituted a long and single-minded effort by the State to obtain hearsay testimony — seems strained and is contrary to the evidence. We conclude, as apparently did the trial court, that, from the standpoint of either Clark or the State, this relationship was primarily one of counseling rather than one of trial preparation. Also, there is no evidence that, from the perspective of the children, the ongoing relationship with Clark was anything but counseling. And that is the proper perspective from which we view the context of the statements. See Wall, 184 S.W.3d at 742-43.

These statements were made in a context analogous to that...