State v. Ward

• Decision Date: 12 August 2019
• Docket Number: No. 77875-7-I,77875-7-I
• Court: Washington Court of Appeals
• Parties: THE STATE OF WASHINGTON, Respondent, v. HOWARD EUGENE WARD, JR., Appellant.

THE STATE OF WASHINGTON, Respondent, v. HOWARD EUGENE WARD, JR., Appellant.

No. 77875-7-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

August 12, 2019

UNPUBLISHED OPINION

APPELWICK, J. — Ward appeals his conviction for assault in the second degree. He contends that the trial court violated his Sixth Amendment right to confrontation by admitting out-of-court statements by a police officer and an emergency room physician. We affirm Ward's conviction but remand for the trial court to strike the DNA collection fee.

FACTS

In the early morning hours of December 17, 2016, Doris Smith woke up to the sound of screaming. Smith ran downstairs to the recreation room her 47 year old son Howard Ward Jr. shared with his girlfriend Jarmillya Chambers. Smith testified that she found Chambers sitting on the edge of the makeshift bed with blood on her face and a swollen eye, looking "scared and messed up." When Smith picked up Chambers earlier that evening, her appearance was normal. Although Smith did not witness the incident, she knew that Ward and Chambers were the only other people in the home that night. Smith called 911 to report that Ward hit Chambers in the face and that he was leaving the house at that moment. When Smith passed the phone to Chambers, she told the 911 operator "I can't talk" and "I think my jaw is broke."

Federal Way Police Officer Michael Henrich testified that Chambers was crying and upset and that her face was bloody, swollen, and puffy. When he asked Chambers what happened, she told him that "Ward had punched her in the face with his fists."

Emergency Medical Technician (EMT) William Hedlund also responded to the scene. Hedlund testified that Chambers's face was bleeding and swollen and her nose was displaced to the right. He believed Chambers's injuries appeared consistent with the report that she had been punched in the face.

Due to the extent of her injuries, EMTs transported Chambers to the emergency room (ER) via ambulance over her objection. There, Chambers told Dr. Andrea Drenguis that "her boyfriend had hit her." Dr. Drenguis testified that Chambers had significant bruising, a subconjunctival hemorrhage in her eye, and a displaced nasal bone fracture. Dr. Drenguis testified that the fracture was "brand new" and that the injuries were consistent with blows to the face.

Two days later, police were called after Ward showed up at his sister's house. After Lieutenant Michael Wedel arrested Ward and advised him of his Miranda¹ rights, Ward stated that he recently found out she was cheating on him and that she was mad because he said he would no longer marry her. Ward denied assaulting Chambers and asserted that she was injured on the streets.

The State charged Ward with assault in the second degree - domestic violence.² Chambers could not be located for trial, and the State elected to proceed without her. Smith, Hedlund, EMT Sandra Tate, Officer Henrich, Officer Chuck Hinckle, Lieutenant Wedel, and Dr. Drenguis testified at trial for the State. The jury also heard a recording of the 911 call and a recording of Ward's jail calls to his mother. Ward elected not to testify at trial. He presented no witnesses.

The jury found Ward guilty of second degree assault as charged. The trial court sentenced Ward to 78 months of confinement. Ward appeals.

ANALYSIS

I. Right to Confront Witnesses

Ward contends that the admission of Chambers's out-of-court statements indicating that Ward hit her violated his right to confront witnesses against him. Specifically, he contends the statements were testimonial hearsay and were therefore inadmissible. We review an alleged violation of the Confrontation Clause de novo. State v. Manion, 173 Wn. App. 610, 616, 295 P.3d 270 (2013).

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." U.S. Const. amend. VI. "[T]he 'principal 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." State v. Lui, 153 Wn. App. 304, 314,221 P.3d 948 (2009) (quoting Crawford v. Washington, 541 U.S. 36, 50, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)), aff'd, 179 Wn.2d 457, 315 P.3d 493 (2009).

The confrontation clause applies to those who "'bear testimony'" against the accused. Crawford, 541 U.S. at 51 (quoting N. WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828)). Admission of a testimonial statement violates a defendant's right of confrontation unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness regarding the statement. Id. at 68. However, if a statement is nontestimonial, it is not subject to the confrontation clause. State v. Wilcoxon, 185 Wn.2d 324, 332, 373 P.3d 224 (2016). The State has the burden of establishing that a statement is nontestimonial. State v. O'Cain, 169 Wn. App. 228, 235, 279 P.3d 926 (2012).

"[A] statement cannot fall within the [c]onfrontation [c]lause unless its primary purpose was testimonial." Ohio v. Clark, ___ U.S. ___, 135 S. Ct. 2173, 2180, 192 L. Ed. 2d 306 (2015). Under the primary purpose test, "the relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals' statements and actions and the circumstances in which the encounter occurred." Michigan v. Bryant, 562 U.S. 344, 360, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011). This inquiry is "highly context-dependent." Bryant, 562 U.S. at 363.

In the police interrogation context,

[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. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that theprimary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006). This can include threats to the victim, police, or the public at large. See Bryant, 562 U.S. 363. But, "whether an ongoing emergency exists is simply one factor—albeit an important factor—that informs the ultimate inquiry regarding the 'primary purpose' of an interrogation." Id. at 366. An additional factor is "'the informality of the situation and interrogation.'" Clark, 135 S. Ct. at 2180 (quoting Bryant, 562 U.S. at 377). "In the end, the question is whether, in light of all the circumstances, viewed objectively, the 'primary purpose' of the conversation was to creat[e] an out-of-court substitute for trial testimony.'" Id. (alteration in original) (quoting Bryant, 562 U.S. at 358).

Statement to Emergency Room Physician

Ward contends that Dr. Drenguis's testimony that Chambers said her "boyfriend had hit her" was testimonial. Statements made to medical personnel are nontestimonial where (1) they are made for diagnosis and treatment purposes, (2) there is no indication the witness expected the statements to be used at trial, and (3) the doctor is not employed by or working with the State. State v. Hurtado, 173 Wn. App. 592, 600, 294 P.3d 838 (2013). The primary purpose test also applies in deciding whether such statements are testimonial.³ State v. Scanlan, 2 Wn. App.2d 715, 725, 413 P.3d 82 (2018), review granted, 191 Wn.2d 1026 (2018).

Here, Dr. Drenguis stated the following on direct examination:

Q. Now, going back to the -- the patient at hand, Ms. Chambers, do you remember what you treated her for?

A. She came in with the complaint -- excuse me, we call them complaints when people come in for -- for treatment. It's no reflection on what brought them in. But she -- she came in with presentation that she had been assaulted and punched multiple times in the head.

Q. And did you attend to her yourself?

A. I did.

Q. Did she note to anyone in the hospital where she received these injuries?

A. She did not specify where to me.

Q. Did she tell you how or who may have given her these injuries?

A. Yes, she told me that her boyfriend had hit her.

Q. Did she tell you his name?

A. She did not.

. . . .

Q. And what were your observations of her?

A. She appeared to be in pain and she had a significant amount of bruising around her left eye and left upper face, and then some -- some tenderness along her left jaw.

Q. And what concerns, if you had any at that time, for her?

A. We always worry about broken bones. We worry about potential deep cuts that might need sutures, we worry about bleeding, either in the brain or in certain enclosed spaces, like behind the eyes, that can cause significant injury and visual damage.

. . . .

A. I would be worried that her nose was broken. I would also, again, be worried that some of her other facial bones would be broken and that she might possibly have an injury to her eye.

Q. And what about -- what are we seeing there in those photos that makes you think that -- that made you think that that night?

A. Her face is very swollen and has a lot of bruising on the left-hand side. Her nose is also deviated slightly to the right.

Q. And did those injuries appear fresh?

A. Yes.

Q. And when you treated her that night, what steps did you take to treat her, so to speak?

A. So she was initially evaluated and given a very thorough physical exam, which includes cleaning dried blood from lacerations and other places to see if deeper lacerations, again, that may need suturing are present. It involves touching very carefully over the injured areas to see if there's any palpable broken bones that we can assess just on physical exam. She, in particular, also received a -- what we call a fluorescein exam, where I took a dye and stained the actual part of her

...