State v. Reidhead

• Decision Date: 10 April 1985
• Docket Number: CA-CR,No. 2,2
• Citation: State v. Reidhead, 705 P.2d 1365, 146 Ariz. 314 (Ariz. App. 1985)
• Parties: The STATE of Arizona, Appellee, v. Allen Dale REIDHEAD, Appellant. 3348.
• Court: Arizona Court of Appeals

Page 1365

705 P.2d 1365

146 Ariz. 314

The STATE of Arizona, Appellee, v.Allen Dale REIDHEAD, Appellant.

No. 2 CA-CR 3348.

Court of Appeals of Arizona Division 2.

April 10, 1985.

Review Denied Aug. 27, 1985.

Robert K. Corbin, Atty. Gen. by William J. Schafer, III, and Linda A. Akers, Phoenix, for appellee.

Frederic J. Dardis, Pima County Public Defender by Regula Case, Tucson, for appellant.

OPINION

HOWARD, Judge.

Appellant was convicted by a jury of a single count of child abuse, a non-dangerous, non-repetitive class 4 felony, and was placed on probation for a period of four years.On March 31, 1983, appellant brought his four-year-old son Allen Jr., to the Northwest Medical Center, Urgent Care Center in Tucson for the treatment of a broken arm.The boy was examined by Dr. Margaret Buford, who also observed what appeared to be a slap mark on the child's face and a mark on his chest.Appellant told Dr. Buford that he had slapped his child and that the child had then fallen off the porch.Dr. Buford testified that she did not believe any of the injuries that she observed were consistent with a fall from a porch.Dr. Buford referred the child to Dr. Jeryl Dansky of the University Hospital for treatment and consultation.He also examined the child.Dr. Dansky testified that the injuries were not consistent with a fall from the porch.Over appellant's objection, Dr. Dansky was allowed to testify that the child told her, "Daddy twisted my arm."

The child and his mother were not available for trial.There was no showing as to what efforts were made to locate them.The only testimony came from the doctors and a detective who had interviewed appellant.

Appellant contends the trial court erred in allowing Dr. Dansky to testify as to the fact that the child stated that his father twisted his arm.The state contends that the statement was admissible as an exception to the hearsay rule under Rule 803(4),Arizona Rules of Evidence, which provides an exception for:

"Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment."

We do not agree.The rule was discussed in the case of State v. Jeffers, 135 Ariz. 404, 661 P.2d 1105(1983) where the court stated:

"Two important factors derive from the rule's rationale: (1) whether the declarant's motive is consistent with receiving medical care; and (2) whether it is reasonable for the physician to rely on the information in diagnosis or treatment.United States v. Iron Shell, 633 F.2d 77(8th Cir.1980).Thus in Iron Shell, the court admitted an assault victim's statements to her doctor stating: 'It is important to note that the statements concern what happened rather than who assaulted her.The former in most cases is pertinent to diagnosis and treatment while the latter would seldom, if ever, be sufficiently related.'Id. at 84.Accord, United States v. Nick, 604 F.2d 1199(9th Cir.1979).The Advisory Committee's Note to rule 803(4) also makes a point of illustrating that statements as to fault would not ordinarily qualify under the exception."135 Ariz. at 420-21, 661 P.2d at 1121-22.

Here, the statement as to fault was not reasonably pertinent to diagnosis or treatment.The court erred when it allowed the testimony into evidence.The error was not harmless here because that statement from the child was the only statement directly connecting appellant to the injury to the boy's arm, his most serious injury.We note with astonishment the dissent's contention that appellant's right to confrontation is not violated because a child's statement to a doctor in a child abuse situation is inherently trustworthy.Support for this statement consists of two articles contained in professional magazines by authors whose expertise is unknown.Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213(1970), teaches that the out-of-court statements of a person not called as a witness and never previously made available for cross-examination are admissible at least when three conditions are satisfied: (1) there are 'indicia of reliability' surrounding the evidence; (2) the evidence is 'peripheral' rather than 'crucial' or 'devastating', and (3) the witness is equally available to the prosecution and the defense.400 U.S. 74 at 88, 89 & n. 19, 91 S.Ct. at 219, 220 & n. 19.Even if we were to agree that condition (1) existed here, the other two clearly did not.Furthermore, the record does not disclose that a good faith effort was made to locate the mother and child.SeeUnited States v. Yates, 524 F.2d 1282 at 1286 n. 10(D.C.Cir.1975).Apparently the dissent believes that we can dispense with the cross-examination of child witnesses.The constitutional right to confrontation should not be eliminated on the basis of some magazine articles.

In State v. Martin, 139 Ariz. 466, 679 P.2d 489(1984), the court states that an important factor which should be considered when deciding whether the right to confrontation has been satisfied is the importance of the evidence.Here, the hearsay was the major evidence.Its admission was devastating to the defendant.The right to confrontation is at the heart and soul of our criminal judicial system and must be jealously guarded.We note that the Wyoming court in the case relied upon by the dissent, a 3-2 decision, did not even address the confrontation problem.The dissent would allow the state in child abuse cases to avoid any cross-examination by the simple expedient of not having the child available and not having him testify.Contrary to the dissent's major premise, the identification of the person who twisted the child's arm is not necessary for the doctor to make his medical determination as to the nature of the injury.

Appellant has raised other issues which we need not discuss in view of our disposition.

Reversed.

BIRDSALL, P.J., concurs.

HATHAWAY, Judge, dissenting.

The majority relies on State v. Jeffers, 135 Ariz. 404, 661 P.2d 1105(1983), in concluding that the child's out-of-court statement to the treating physician, as relayed by that physician in court, was "not reasonably pertinent to diagnosis or treatment"[majority opinion at 3] and thus inadmissible under Rule 803(4),Rules of Evidence, 17A A.R.S. I believe this conclusion to be in error for several reasons:

(1) It misapplies the analysis of Jeffers.

(2) It fails to recognize that, in contrast with virtually any other medical condition discussed by a patient with his doctor, child abuse is defined in terms of a class of perpetrator.

(3) It ignores the proven reliability of child identifications of the abuser, which would qualify the limited class of statements at issue here for admission under the "catch-all" hearsay exceptions, 803(24) and 804(5).(4) It flies in the face of the intent of the legislature to deal aggressively with offenses against children as evidenced by carving out as a special offense, injury of a child by a caretaker in A.R.S. § 13-3623, "Child abuse," and by imposing upon medical and other personnel having occasion to know of abusive injury a duty to report all non-accidental injuries.A.R.S. § 13-3620.

Preliminarily, I would note that the role of this court must be one of restraint with respect to the trial court."We are only to reverse where we find that the admission of this testimony constituted an abuse of discretion."United States v. Iron Shell, 633 F.2d 77, 86(8th Cir.1980).

THE JEFFERS ANALYSIS

State v. Jeffers, supra, quoted in pertinent part by the majority, breaks down the rationale of the medical diagnosis and treatment exception into two parts: whether the declarant's motive is consistent with receiving medical care and whether the physician reasonably relies on the information in diagnosis or treatment.135 Ariz. at 420-1, 661 P.2d at 1121-22.With respect to declarant's motive, while it is conceivable that the victim in this case had developed a motive to lie, once his mother intervened and transported him to the second doctor where the questioned statement was made, there is nothing in the record to suggest any motive to lie had developed.On the contrary, the detail of the child's statement to Dr. Dansky, that his father had twisted his arm when he got into the father's record collection, is consistent with what was admitted by the defendant¹ about the circumstances of injury and with the findings of two physicians.In any case, the first prong of Jeffers requires only that the patient have a motive consistent with receiving medical care, surely the case here, not that no other motive is operating.

The child's statement, elicited in response to an open-ended question from the consulting pediatrician in an examining room, suggests no motive other than a desire to cooperate and get well.

"Q.Now, what did you do after the child came to your attention there at the hospital?

A.I spoke with the mother and the child, and examined the child.

Q.Okay.And you spoke with the child first?

A.Yes.

Q.And then the mother?

A.That's correct.

Q.And then in what kind of setting did you speak with the child?

A.In one of our examining rooms in the pediatric clinic.

Q.And can you tell us about your conversation with the child?

A.I initially approached the child and asked what had happened, and after initially not saying anything, the child told me that he had been playing with one of his father's record[s].

MR. HANTMAN: Excuse me.I'll object as not being part of the basis for the treatment, Your Honor.

THE COURT: Objection is overruled.She may answer.

Q. (By Ms. Jorgenson) You may answer.

A.The child was playing with one of the father's records and got it dirty, and his father twisted his arm.(Emphasis added)

Q.Now, did you speak with the child first or the mother first regarding what happened?

A.I...