State v. Hurtado
Decision Date | 19 February 2013 |
Docket Number | No. 67478–1–I.,67478–1–I. |
Citation | 294 P.3d 838 |
Court | Washington Court of Appeals |
Parties | STATE of Washington, Respondent, v. Hector R. HURTADO, Appellant. |
OPINION TEXT STARTS HERE
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
¶ 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.
¶ 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
¶ 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:
12
Second, when a declarant makes a statement to law enforcement, a court uses the “primary purpose” test:
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.
Q. Continue.
Q. So you went...
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State v. Scanlan
...standard" ’ still governed statements made to "nongovernmental witness[es]," including medical providers. 173 Wash. App. 592, 599-600, 294 P.3d 838 (2013) (analyzing statements made by a crime victim to an emergency room nurse) (quoting Beadle, 173 Wash.2d at 107-08, 265 P.3d 863 ). The cou......
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State v. Jackson
...bears the burden to establish that a statement is non-testimonial and thus admissible absent an opportunity to cross-examine. Hurtado, 173 Wn.App. at 600. Washington courts have repeatedly reaffirmed that a statement made for the purpose of medical diagnosis or treatment is not testimonial ......
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State v. Jackson
...51, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). We review an alleged violation of the Confrontation Clause de novo. State v. Hurtado, 173 Wn. App. 592, 598, 294 P.3d 838 (2013). A Confrontation Clause claim may be raised for the firsttime on appeal if it arises to the level of a manifest err......
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State v. Scanlan
...are testimonial set out in State v. Sandoval, 137 Wash. App. 532, 537, 154 P.3d 271 (2007), and followed in State v. Hurtado, 173 Wash. App. 592, 600, 294 P.3d 838 (2013). Statements in this context are nontestimonial when the following factors exist: "(1) where they are made for diagnosis ......
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Hearsay
...by laboratory tech- nicians?” This is an issue that will generate additional Supreme Court attention in the future. State v. Hurtado , 294 P.3d 838 (Wash. App. 2013). Admission in evidence of domestic violence victim’s statements to hospital personnel, made while a police officer was presen......
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Hearsay
...made) by laboratory technicians?” This is an issue that will generate additional Supreme Court attention in the future. State v. Hurtado , 294 P.3d 838 (Wash. App. 2013). Admission in evidence of domestic violence victim’s statements to hospital personnel, made while a police officer was pr......
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Hearsay
...made) by laboratory technicians?” This is an issue that will generate additional Supreme Court attention in the future. State v. Hurtado , 294 P.3d 838 (Wash. App. 2013). Admission in evidence of domestic violence victim’s statements to hospital personnel, made while a police o൶cer was pres......
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Hearsay
...made) by laboratory technicians?” This is an issue that will generate additional Supreme Court attention in the future. State v. Hurtado , 294 P.3d 838 (Wash. App. 2013). Admission in evidence of domestic violence victim’s statements to hospital personnel, made while a police o൶cer was pres......