State v. Hill, No. 1 CA–CR 12–0627.

CourtCourt of Appeals of Arizona
Writing for the CourtJOHNSEN
Citation336 P.3d 1283,699 Ariz. Adv. Rep. 4,236 Ariz. 162
Docket NumberNo. 1 CA–CR 12–0627.
Decision Date04 November 2014
PartiesSTATE of Arizona, Appellee, v. Odece Dempsean HILL, Appellant.

236 Ariz. 162
336 P.3d 1283
699 Ariz.
Adv. Rep. 4

STATE of Arizona, Appellee,
v.
Odece Dempsean HILL, Appellant.

No. 1 CA–CR 12–0627.

Court of Appeals of Arizona,
Division 1.

Nov. 4, 2014.



Affirmed as modified.


[336 P.3d 1284]


Arizona Attorney General's Office By Craig W. Soland, Phoenix, Counsel for Appellee.

Janelle A. McEachern, Attorney at Law By Janelle A. McEachern, Chandler, Counsel for Appellant.


Chief Judge DIANE M. JOHNSEN delivered the opinion of the Court, in which Presiding Judge PETER B. SWANN and Judge PATRICIA K. NORRIS joined.
OPINION

JOHNSEN, Judge.

¶ 1 Odece Dempsean Hill was convicted of sexually assaulting a teenage girl, based in part on the testimony of a forensic nurse who related what the victim had told her in the emergency room three hours after the attack. The victim died before Hill was brought to trial, and he argued the nurse's testimony violated his rights under the Confrontation Clause of the United States Constitution. Guided by recent United States Supreme Court cases, we conclude the superior court did not err by admitting the testimony because the victim's statement was not testimonial.

[336 P.3d 1285]

FACTS AND PROCEDURAL HISTORY

¶ 2 Three assailants forced their way into a Mesa apartment early one morning in 2001, and one or more of them sexually assaulted a pregnant teenage girl. 1 Shortly after the assailants departed, the victim was taken to an emergency room in premature labor. There a registered nurse trained to perform forensic medical examinations examined her. The nurse provided medical care and also collected samples of biological evidence using a rape kit. The biological evidence collected from the victim matched DNA samples taken from the crime scene, leading to Hill's arrest ten years later.

¶ 3 Before Hill was brought to trial, the victim died from causes unrelated to the assault, and the State moved in limine to allow the nurse to testify about her examination of the victim and a statement the victim made to her at the outset of the examination. Over Hill's objection that the testimony would violate the Confrontation Clause, the superior court granted the State's motion.

¶ 4 At trial, the nurse testified that forensic nurses are registered nurses specially trained to perform forensic medical examinations of crime victims. She testified her examination of the victim had two components—providing medical care and collecting DNA evidence and other evidence of the assault. Before seeing the victim, the nurse spoke with a law enforcement officer to obtain basic demographic information about the victim and to learn why a forensic examination was called for, but no officer was present during the examination. The nurse documented the results of the examination on a form titled “Sexual Assault Examination Report” that provided step-by-step instructions for collecting evidence and required her to record the victim's medical and “assault history” and where on the victim's body she collected evidence. The nurse identified herself on the form as the “examiner” and the Mesa Police Department as the “agency involved.” According to the form, the assault occurred at 2 a.m.; the examination began at 5 a.m. In addition to noting the manner and location of the various assaults the victim identified, the nurse recorded the victim's vital signs and the nature and location of pain she described. The nurse also recorded other elements of her physical examination of the victim, including, for example, neurological signs (the victim was “oriented”), and her breath and bowel sounds.

¶ 5 The nurse testified she began the examination by asking the victim about her medical history and any sexual assault that had occurred. Obtaining an assault history, she explained, is “part of normal nursing care and it guides my treatment. It tells me what I'm going to do or not do.” She further testified that, although part of her job as a forensic nurse is to collect evidence from the victim, “my job is to be a nurse first.” She stated:

I start out by explaining the process to my patient and getting consent from him or her in order to perform the exam. And the process is I obtain a history from my patient for the purpose of diagnosis and treatment.... And then I do a head to toe exam. And I do that looking for injury or trauma. And depending on what they told me in history, or detail, I do a genital exam looking for injury or trauma. And throughout the entire process I collect evidence using generally swabs off their bodies.

¶ 6 Asked how she obtained an assault history from the victim, the nurse replied that she asked a “completely open-ended question.... I say tell me why you're here.” In response to that question, the victim provided a graphic account of several assaults, which the nurse wrote down and read at trial:

[H]e held a gun to my head, shoved his hand into me, then he put his D in my mouth, his dick. The other guy tried to [p]ut his D in my buttocks, pulled my legs apart trying to put his D in me the other way. I sucked him off but he ha [d] sex with me, put his dick in my vagina. Then the other guy too had me suck him off; had sex with me in the bathtub. The third

[336 P.3d 1286]

guy stuck his fingers in me to clean me out and then he made me suck him off.

¶ 7 The nurse's examination of the victim took 75 minutes, after which she released the victim back to the care of the emergency room staff, recommending that she be given medication to prevent sexually transmitted infections and that she make an appointment to return for another check in a few weeks.

¶ 8 The jury convicted Hill of one count of first-degree burglary, a Class 2 felony; four counts of kidnapping, Class 2 felonies; seven counts of sexual assault, Class 2 felonies; one count of attempted sexual assault, a Class 3 felony; and four counts of aggravated assault, Class 3 felonies. The court sentenced him to consecutive and concurrent sentences of imprisonment totaling 91.5 years.

¶ 9 Hill timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes sections 12–120.21(A)(1) (2014), 13–4031 (2014) and –4033 (2014).2

DISCUSSION

¶ 10 Although several of Hill's convictions were supported by substantial other evidence at trial, the nurse's account of the victim's statement recited supra ¶ 6 was the only evidence establishing the particulars of a few of the charges against him. Hill argues the superior court violated his Sixth Amendment right to confront witnesses when it admitted the victim's statement to the forensic nurse.3 We review the superior court's decision under the Confrontation Clause de novo. State v. Tucker, 215 Ariz. 298, 315, ¶ 61, 160 P.3d 177, 194 (2007).

¶ 11 The Confrontation Clause provides, “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. amend. VI. In Crawford v. Washington, 541 U.S. 36, 53–54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court held that a “testimonial” statement by a witness who does not appear at trial must be excluded under the Confrontation Clause unless the witness is unavailable to testify and the defendant had a prior opportunity for cross-examination. The Court did not comprehensively define “testimonial,” but described a “core class of ‘testimonial’ statements” as including affidavits, custodial examinations, depositions, prior testimony, confessions, “[s]tatements taken by police officers in the course of interrogations,” and any other “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.” Id. at 51–52, 124 S.Ct. 1354.

¶ 12 In Davis v. Washington, 547 U.S. 813, 817, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), the Supreme Court analyzed whether statements made to a 911 operator were “testimonial” for purposes of the Confrontation Clause. There the Court held that “[s]tatements 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.” Id. at 822, 126 S.Ct. 2266. On the other hand, statements “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. Thus, in Davis the Supreme Court shifted the focus under the Confrontation Clause to the “primary purpose” of an interrogation. See

[336 P.3d 1287]

State v. Alvarez, 213 Ariz. 467, 471, ¶ 15, 143 P.3d 668, 672 (App.2006). The Court observed that “a 911 call[ ] is ordinarily not designed primarily to ‘establis[h] or prov[e]’ some past fact, but to describe current circumstances requiring police assistance.” Davis, 547 U.S. at 827, 126 S.Ct. 2266; see also id. (“the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn (as in Crawford) what had happened in the past”).

¶ 13 In Michigan v....

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