State v. Tsosie, S-1-SC-38418

Case DateJuly 14, 2022
CourtSupreme Court of New Mexico

STATE OF NEW MEXICO, Plaintiff-Petitioner,

OLIVER TSOSIE, a/k/a OLIVER O. TSOSIE, a/k/a OLIVER OLIN TSOSIE, Defendant-Respondent.

No. S-1-SC-38418

Supreme Court of New Mexico

July 14, 2022


Hector H. Balderas, Attorney General Maris Veidemanis, Assistant Attorney General Santa Fe, NM for Petitioner

Bennett J. Baur, Chief Public Defender Kimberly Chavez Cook, Appellate Defender Santa Fe, NM for Respondent




{¶1} This case requires that we apply evolving Confrontation Clause jurisprudence following Crawford v. Washington, 541 U.S. 36 (2004), to statements made by an alleged victim, now unavailable, in the course of a sexual assault nurse examiner (SANE) exam. On interlocutory appeal, the State challenges the Court of Appeals' affirmance of the district court's pretrial ruling that almost all statements made by Declarant Kimbro Talk to SANE nurse Gail Starr were inadmissible as violating Defendant Oliver Tsosie's confrontation rights under the Sixth Amendment. The district court concluded that Declarant's statements sought by the State for use at Defendant's trial were testimonial in nature, and thus inadmissible, pursuant to Crawford and Davis v. Washington, 547 U.S. 813 (2006). We reverse and, without ruling on other considerations of admissibility, hold that almost all of the excluded statements are nontestimonial in nature and thus do not violate Defendant's rights under the Confrontation Clause.


A. Factual Background

{¶2} Based on events on or about December 18, 2017, Defendant was charged with kidnapping, criminal sexual penetration, aggravated burglary, aggravated battery,


aggravated assault, and bribery of a witness. The State's allegations included that Declarant argued with Defendant after admitting Defendant and an unknown male into his apartment. Defendant allegedly held a knife from Declarant's kitchen to Declarant's throat, struck and kicked Declarant, and then strangled Declarant to unconsciousness. Upon regaining consciousness, Declarant allegedly was restrained on the floor by the unknown male while Defendant was anally penetrating Declarant with his penis. Defendant and the unknown male allegedly tied up Declarant and then stole some of his belongings. Before leaving, Defendant allegedly threatened to return with the unknown male to kill Declarant if he reported the events to police. Declarant subsequently freed himself and called 911 from his neighbor's apartment.

{¶3} Following treatment that night at the University of New Mexico Hospital (UNMH) emergency room, Declarant was referred for additional examination and treatment by the SANE department. Declarant was transported by law enforcement to the Family Advocacy Center where he underwent the SANE examination conducted by Starr. The eighteen-page SANE exam report in which Starr recorded Declarant's statements was admitted as State's Exhibit 3 ("SANE exam report") at a motion hearing on October 9, 2018.


{¶4} Because Declarant died in June 2018, he is unavailable to testify, and the record offers no evidence that Defendant had an opportunity to cross-examine Declarant regarding his statements recorded in the SANE exam report.

B. Procedural Background

{¶5} Following a pretrial hearing regarding various evidentiary issues, the district court concluded that it required testimony from Starr before making a determination about the admissibility of Declarant's statements in the SANE exam report. Accordingly, the district court held a hearing for that purpose.

{¶6} At the hearing, Starr was qualified as an expert in the area of sexual assault nurse examinations. Starr's testimony included the purpose of a SANE exam generally:

[W]e are a medical exam. It's very important to treat somebody who has been a victim of trauma . . . to give them support and psychosocial support . . . to do a safety assessment, make sure they're not at risk for re-offense re-harm . . . to give them medications to prevent sexually transmitted diseases, to help their body and help them feel . . . less dirty . . . to give them resources to assist them to heal. We also do forensic photography . . . and . . . for sexual assault, we also do the sexual assault evidence kit as a part of the exam, as well.

Starr testified as to her specialized training as a SANE nurse, her limited ability to make a nursing diagnosis rather than a physician's medical diagnosis, and the circumstances of the SANE program's medical clinic. Starr also testified at length as to the underlying purposes of each portion of the SANE exam report the State


sought to admit in the instant case. We include this testimony below where it is relevant to the analysis.

1. The district court's order regarding admissibility of statements in the SANE exam report

{¶7} Central to this appeal, the district court issued an order recounting Starr's hearing testimony. The order specified statements within nine portions of the SANE exam report which the State intended to elicit at trial through Starr's testimony. Then, the court set forth a testimonial analysis under Crawford, stated as findings of fact and conclusions of law. The court's order admitted four statements made in the SANE exam that had "an ascertainable purpose that was primarily for medical treatment." Eight portions of the SANE exam report were ruled inadmissible- challenged here by the State-due to those statements "not [being] made for the primary purpose of seeking medical treatment and [being] testimonial hearsay and a violation of Defendant's right to confrontation."

{¶8} Starr's testimony as recounted in the order included that she "has received specialized training to assess genital injuries and injuries caused by strangulation" and that "[a]s a SANE nurse, she can treat but cannot diagnose a patient." The order noted Starr's testimony that the SANE clinic "is located in the same building" as law enforcement "but in a separate area" and that Declarant "was brought to the clinic by law enforcement." The order also noted that "[a] CT scan of [Declarant] was


conducted by UNMH prior" to the SANE exam. It further noted that "[a] SANE examination will be performed regardless of whether the patient reports the assault to law enforcement." The order included a nonexclusive list from Starr's testimony as to underlying medical purposes for Declarant's statements sought by the State for use at trial.

{¶9} For legal authorities guiding its analysis, the district court quoted portions of State v. Romero regarding testimonial analysis. See Romero, 2007-NMSC-013, ¶ 7, 141 N.M. 403, 156 P.3d 694 ("'Statements are . . . testimonial when the circumstances objectively indicate that there is no . . . ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.'" (quoting Davis, 547 U.S. at 822)); id. ¶ 21 ("[T]he level of formality of the interrogation is a key factor in determining whether statements are 'testimonial' within the meaning of Crawford." (citing Davis, 547 U.S. at 830)). The district court also cited State v. Largo for the proposition that "[t]he actions and statements of both the interrogator and the declarant may illuminate the primary purpose of the interrogation." See 2012-NMSC-015, ¶ 16, 278 P.3d 532. The district court did not cite United States Supreme Court confrontation jurisprudence subsequent to Davis.


{¶10} The district court set out six findings of fact. These findings provided that "[t]he examination occurred in a structured setting," that the SANE exam report's multiple "forms suggest[ed] structured questioning," that Declarant "consent[ed] to release all records and evidence to law enforcement," that Declarant "had been seen and treated at UNMH emergency room prior to" the SANE exam, that "[a]lthough [Declarant had been] seen at UNMH and received a CT scan, genital examinations are referred to [the] SANE" program, and that "[a]lthough there is a dual purpose in a SANE examination, including a medical evaluation and police investigation, the majority of statements by [Declarant] recount[ed] what the abusers did, who did it, and what [Declarant] did that might affect collection of evidence in the Post-Assault Hygiene Activity section of the structured [SANE exam report] form" on page 3.

{¶11} The order's analysis then set out four apparent legal conclusions:

[1] The primary purpose of a majority of the examination by the SANE nurse was not for medical treatment of [Declarant] but for purposes of forensic investigation, collection of physical evidence, and to ascertain the identity of the assailants.
[2] Other than the genital examination, the primary purpose of the SANE examination was to prove some past fact for use in criminal trial rather than to meet an ongoing emergency making the majority of [Declarant's] statements to the SANE nurse testimonial in nature.
[3] Viewed objectively, the majority of statements given to the SANE nurse were not given for the primary purpose of medical diagnosis. The SANE nurse testified she is not able to make a
diagnosis. [Declarant] had already been seen at UNMH and there was no indication that UNMH lacked necessary medical equipment for proper medical examination, diagnosis, and treatment.
[4] Because the SANE nurse receives specialized training in assessing genital injuries and it is not uncommon for a SANE nurse to receive a referral from emergency rooms for genital examinations, limited statements made by [Declarant] to the SANE nurse would qualify as nontestimonial hearsay falling under the exception in Rule 11-803(4) [NMRA].

{¶12} The district court's order then set out the four statement categories ruled both as admissible under...

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