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analyzing statements under D.R.E. 803 to determine whether "a reasonable person in the position of the declarant would think that his or her statement likely was to be used in the course of investigating and prosecuting a criminal act," which may implicate Crawford
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No. 0411007637.
Submitted: June 2, 2005.
Decided: July 19, 2005.
On State of Delaware's Proffer Regarding Admissibility of Statements Made by Jean Croft and Defendant's Opposition to Same under Delaware Rules of Evidence, Rules 803(2), 803(3), 803(4) and 803(6)
James W. Adkins, Esquire, Department of Justice, Georgetown, Delaware, for the State of Delaware.
Stephanie A. Tsantes, Esquire and James Brendan O'Neill, Esquire, Office of the Public Defender, Georgetown, Delaware, for the Defendant.
MEMORANDUM OPINION
Pending before the Court is a motion which the State of Delaware ("the State") has filed regarding the admissibility of certain hearsay statements. This is my decision thereon.
FACTUAL BACKGROUND
In August, 2003, defendant Albert Johnson was hired to do "handyman" jobs at the residence of Mrs. Jean Croft. Later in August, he was charged with a burglary and theft of a bike at Mrs. Croft's residence. As a condition of bond, he was ordered to stay away from her residence.
Later he came to a window at her house, at night, seeking money. Mrs. Croft reported his sudden appearance in the evening scared her.
Mrs. Croft wanted to drop the charges because she was afraid of Mr. Johnson. Mrs. Croft thought he would leave her alone if the charges were dropped. He called Mrs. Croft's son in Texas and asked that the charges be dropped. Mr. Croft told him to "stay away from my mother".
At approximately 9:00 a.m. on October 22, 2003, Mrs. Croft reported to her family that a black man had raped her at approximately 1:00 a.m. Her son had called her while driving to work. She reported a robbery to him and a rape to her daughter who made an immediate follow-up call upon hearing the report from her brother.
Mrs. Croft did not identify Mr. Johnson as the person who raped her, but the police interviewed him because of the burglary arrest and his recent contact with Mrs. Croft and her residence. He denied the rape and said he was not allowed at the property.
No immediate arrests were made, but a forensic rape kit containing swabs from Mrs. Croft's vagina was sent away for DNA testing.
In the meantime, Mr. Johnson was sentenced to the Key-Crest programs for multiple burglaries, including the aforementioned burglary, to which he had pled guilty.
On October 27, 2004, Mrs. Croft died of natural causes.
On November 3, 2004, the DNA reports connected Mr. Johnson to the rape allegations.
Mr. Johnson was indicted. Prior to counsel being appointed, the State conducted another interview. In this interview, Mr. Johnson admitted to being present and having sexual intercourse with Mrs. Croft. He stated he had come into the house and found Mrs. Croft "playing with herself". He reported that one thing led to another, resulting in consensual sex. Mrs. Croft was seventy-nine (79) years old at the time.
At trial, the State's task is to prove that sexual intercourse occurred without Mrs. Croft's consent. The State has made a proffer as to the hearsay it intends to use at trial. The defense's objections are that Mrs. Croft's statements are hearsay and additionally, they violate the defendant's confrontation rights as recently construed in Crawford v. Washington, 541 U.S. 36 (2004) (" Crawford").
An evidentiary hearing as to the proffered hearsay took place on May 31, 2005, and June 2, 2005. Trial is July 25, 2005.
None of the proffered hearsay directly ties Mr. Johnson to the alleged rape. The proffered hearsay is offered to tend to prove that somebody raped Mrs. Croft and that Mrs. Croft's fear of Mr. Johnson provides a circumstantial inference that she would not have consented to sexual intercourse with Mr. Johnson. Also, the State seeks to use her statements and her mental status following the alleged rape to support the inference she did not consent to sexual intercourse with Mr. Johnson.
The Court will consider the proffered testimony on a witness-by-witness basis and consider both the hearsay objections and the confrontation issues. But, first, it is necessary to discuss the Crawford decision since the confrontation issues evolve from that decision.
CRAWFORD v. WASHINGTON
In Crawford, a defendant convicted of assault raised the issue of whether his confrontation rights were violated with regard to the admission of a statement his wife made. He had invoked the state's marital privilege to preclude his wife's trial testimony. He argued the admission of his wife's statement to police violated his constitutional right to confront witnesses against him. The United States Supreme Court held the statement was testimonial, and the Sixth Amendment's right to confrontation provided a procedural guarantee that the reliability of the wife's statement be tested by cross-examination. The Court stated:
Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of "testimonial." [Footnote omitted.] Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.Crawford v. Washington, 541 U.S. at 68.
As Delaware's Supreme Court recently observed in Johnson v. State, Del. Supr., No. 429, 2004, Ridgely, J. (July 1, 2005) at 12-13:
The Sixth Amendment of the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. . . ." [Footnote and citations omitted.] This fundamental right is made obligatory on the States by virtue of the Fourteenth Amendment. [Footnote and citation omitted.] "The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." [Footnote and citation omitted.]
Until the United States Supreme Court decided Crawford, the scope of a defendant's confrontation rights was conditioned on whether the hearsay evidence fell within a firmly rooted hearsay exception or bore a particularized guarantee of trustworthiness. [Footnote and citations omitted.] Crawford rejected this general framework with respect to prior testimonial statements, holding that under the Sixth Amendment, out-of-court testimonial statements by witnesses are inadmissible against the defendant if the witness is unavailable and there is no opportunity to cross-examine the witness. [Footnote and citations omitted.]
The Court, thus, first must determine if a statement is testimonial or non-testimonial. Davis v. State, 2005 Tex. App. LEXIS 3773 (Tex.Ct.App.). If the Court determines the statement is non-testimonial, then it applies the standard for admissibility set forth in Ohio v. Roberts, 448 U.S. 56 (1980) (" Roberts"). Davis v. State, supra. "Roberts says that an unavailable witness's out-of-court statement may be admitted so long as it has adequate indicia of reliability — i.e., falls within a `firmly rooted hearsay exception' or bears `particularized guarantees of trustworthiness.' 448 U.S., at 66. . . ." Crawford v. Washington, 541 U.S. at 42. See Capano v. State, 781 A.2d 556, 616 (Del. 2001), cert. den., 536 U.S. 958 (2002) ("Before the State may present hearsay statements against the accused in a criminal prosecution, the State must therefore establish (1) that the hearsay was admitted under a `firmly rooted' exception to the hearsay rule or (2) that the contested statements possess `particularized guarantees of trustworthiness "such that adversarial testing would be expected to add little, if anything, to the statements' reliability."' [Footnotes and citations omitted.]").
Since the Supreme Court provided only guidelines and no litmus test regarding whether a statement is testimonial, the various courts are addressing the issue on a case-by-case basis. Davis v. State, supra. The question I will ask in determining if a statement is testimonial is whether a reasonable person in the position of the declarant would think that his or her statement likely was to be used in the course of investigating and prosecuting a criminal act.
To summarize, the Court must review each statement and determine if it is testimonial or not. As to the "testimonial or not" debate, the Court must look not only to what was said, but also to the circumstances occurring at the time of the statement. If a statement is testimonial, Crawford precludes its admissibility. If it is not, then the Court determines its admissibility by employing the trustworthiness and/or "firmly rooted" hearsay exception standard.
MICHELE DONOVAN — THE TRIAGE NURSE
The police took Mrs. Croft to the hospital at approximately 11:15 a.m. on October 22, 2003. She was seen by a triage nurse, a SANE nurse, and other medical providers. She was discharged at approximately 3:00 p.m. that day.
"SANE" is an acronym for Sexual Assault Nurse Examiner.
Mrs. Donovan is a Registered Nurse with forty (40) years of experience. She was the triage nurse at the Beebe Hospital emergency room on October 22, 2003.
Her job is first to inquire why a person is at the emergency room and then focus on the immediacy of the care needed. She seeks subjective complaints that may be helpful to the treating medical team.
Upon asking Mrs. Croft why she was at the emergency room, Mrs. Croft stated a black male had sexually assaulted her at approximately 1:00 a.m. She was asked if penetration had occurred and she said yes. Mrs. Croft reported no physical injuries.
Mrs. Croft's demeanor was described as "shaky", "anxious", and "tearful". She was "wringing her hands".
Mrs. Croft also reported that it was the "worst night of my life" and that her assailant told her "not to call the police or she'll be sorry".
The State seeks to have the aforementioned hearsay admitted pursuant to Delaware Rules of Evidence ("D.R.E."), Rule 803(4) as statements made for purposes of medical diagnosis and treatment.
In D.R.E., Rule 803(4), it is provided:
The following are note excluded by the hearsay rule, even thought the declarant is available as a witness:
* * *
(4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment. 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 course thereof insofar as reasonably pertinent to diagnosis or treatment.
The defense opposes the admission of these statements because the primary reason the police took her to the hospital was to gather forensic evidence. Defendant argues that the evidence is testimonial and therefore, Crawford precludes it.
The first statements I examine are those that a black male had sexually assaulted her and that he had penetrated her. Even though a police officer transported Mrs. Croft to the hospital for his own reasons, this does not render her statements to the medical staff as "testimonial" under Crawford. The triage nurse was not a government or investigating officer. There is no evidence she was working on behalf of, or in conjunction with, investigating police officers for the purpose of developing a case against defendant. Her questions were standard operating procedures for every person who came to the emergency room. The evidence is that Ms. Donovan interviewed Mrs. Croft to determine treatment, not for the purpose of developing trial testimony. It is reasonable to conclude that Mrs. Croft knew she was at the hospital for treatment and not for preserving her comments for trial. The police officer was not present during the triage interview. Her statements were not testimonial and Crawford does not bar their admission. See In re: D.L., et al., 2005 Ohio App. LEXIS 2215 (Ohio Ct.App.); Ohio v. Stahl, 2005 Ohio App. LEXIS 1134 (Ohio Ct.App.); Ohio v. Lee, 2005 Ohio App. LEXIS 1010, motion to file appeal granted, 2005 Ohio LEXIS 1276 (Ohio Supr.).
Now, I examine the admissibility of these statements under the Roberts' standard. My focus is on Mrs. Croft. While she did not complain of injury, she did state she had been raped and that she had been penetrated. It is appropriate and reasonable to conclude that a person being presented to a triage nurse at a hospital emergency room would understand that she is going to be given a check-up by the medical staff as to her complaints. I am satisfied that the direct evidence and the reasonable inferences from same support the finding that Mrs. Croft knew she would be seeing medical personnel for diagnosis and potential treatment and that she should be forthright in her answers.
It was important to the medical team to know her general complaint that she had been raped. Also, the more specific inquiry about penetration was medically important because penetration triggers a protocol of administering antibiotics for prophylactic purposes.
No matter what the motivation of the police, I am satisfied Mrs. Croft knew she was at a hospital to be examined by the medical staff to determine if she was okay. Therefore, the underlying reasons for this exception, that people tend to be honest in their reporting to medical personnel who are trying to give them medical assistance, leads me to conclude this evidence is reliable and therefore, admissible. Capano v. State, 781 A.2d at 616. Finally, I note that such statements fall within D.R.E. 803(4), which is a firmly rooted hearsay exception. Capano v. State, 781 A.2d at 626.
I now turn to her comments concerning the "worst night of her life" and the assailant's threats if she reported the incident. I find that those statements are not reasonably related to treatment. I find that while she was still anxious, too much time had passed for reflection for them to be excited utterances. Also, she knew a police investigation was occurring. Therefore, those statements shall not be admissible as an excited utterance under D.R.E. 803(2). Nor are they admissible under the present state of mind exception under D.R.E. 803(3) as I interpret these statements as being historical comments. Capano v. State, 781 A.2d at 611-12.
In D.R.E. 803(2), it is provided:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
* * *
(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
In D.R.E. 803(3), it is provided:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
* * *
(3) Then existing mental, emotional or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification or terms of declarant's will.
CHERYL ZADANA — THE SANE NURSE
Ms. Zadana is a Registered Nurse who has been a SANE nurse since 1997. Because Mrs. Croft had not suffered any injuries requiring immediate treatment by a physician and because there was no "on duty" SANE nurse, Ms. Zadana was "called in". This is the protocol at Beebe Hospital in cases of this nature. It took Ms. Zadana about forty (40) minutes to arrive at Beebe.
In this case, the SANE nurse had two functions: to provide medical care and treatment and to collect potential forensic evidence. The investigating detective was present for the SANE nurse's interview with Mrs. Croft; he was not present during the physical examination.
Ms. Zadana reported Mrs. Croft was very upset, anxious and humiliated by the incident. She thought Mrs. Croft's reaction was natural given Mrs. Croft's age.
— Medical treatment exception —
Ms. Zadana asked Mrs. Croft if penetration had occurred during the incident of alleged sexual assault. Again, this was for medical treatment and when Mrs. Croft said yes, antibiotics were either given to her or prescribed. However, I do not have sufficient information to decide whether Mrs. Croft understood if her statements might be used in the investigation and/or any trial which might ensue.
I believe it may be problematic to have the investigating police officer present during the medical treatment. It may poison the well.
Without having sufficient facts on which to determine whether or not the complaining witness would reasonably expect her statements to the SANE nurse to be used prosecutorially or as a part of the criminal investigation to be used at trial, I decline to allow the SANE nurse's testimony. First, it would be cumulative to that which is being permitted. Second, I realize that the use of a SANE nurse in allegations concerning a sexual assault is frequently important to both the State and defense. Since this appears to be a case of first impression in Delaware as to Crawford's application to statements made to a SANE nurse regarding an alleged sexual assault, I decline to unnecessarily push the envelope one way or another due to a lack of relevant facts.
— State of mind exception —
Ms. Zadana also testified that Mrs. Croft reported she did not feel safe and was going to sell the house. These statements are not admissible under the medical diagnosis and treatment exception as they are not related to treatment.
But, they are statements of her then existing state of mind — her fear of staying at the house. They are not historical reports. They may be admissible under D.R.E. 803(3). Under Derrickson v. State, Del. Supr. 321 A.2d 497, 503 (Del. 1974) (" Derrickson"), the Court should consider the following factors in any decision as to the admissibility of an existing state of mind statement:
1. The statements need to be relevant and material. Mrs. Croft's statements meet this test because they provide circumstantial or inferential evidence as to whether a person expressing such fears would have "consented" to sexual relations as opposed to being forcibly raped. The allegations are that she was raped the night before in this house.
2. Her statements related to her existing state of mind at the time she reportedly made them.
3. They were communicated in a normal manner, even if being with a SANE nurse is not a normal part of one's day.
4. There are no known circumstances creating any suspicion as to why she made the statements. (See the following Crawford analysis).
5. Nor is there any suggestion of sinister motives on her part.
The more interesting question is the Crawford testimonial issue. There was no testimony as to the circumstances leading up to the statements by Mrs. Croft. If the statements were spontaneously made by a person who was in a reportedly anxious state of mind, then I am of the opinion that they are not "testimonial". I also note that the nature of the comments leads me to presume they were spontaneous.
But, the Court is fully aware that SANE nurses are trained to collect evidence which can be used later at a trial. A SANE nurse, in reality, wears two hats — one as a medical treatment provider and one as a collector of physical evidence as well as a recorder of an alleged victim's non-medically related comments about the incident. The forms introduced into evidence establish that the SANE nurses' training and protocol involve more than just medical treatment. They include victim counseling and evidence collection. If Mrs. Croft's statements were made in the evidence collection mode by responding to questioning by the SANE nurse as to this subject matter, then Crawford would appear to exclude such statements.
I do not have a sufficient record to make a ruling at this time on the admissibility of Mrs. Croft's statements that she did not feel safe and was going to sell the house. I will allow this to be developed further out of the presence of the jury, as I think whether this was spontaneous or a part of an investigatory interview can be resolved quickly.
TERRY SCHOLTON
After the alleged rape, Mrs. Croft never returned to her Rehoboth Beach residence. She had another residence in Houston, Texas, where she had resided for approximately fifty (50) years. Her children also resided in Houston. On the day following the alleged rape, her children came to Delaware and took their mother back to Houston.
Mrs. Croft had a history of some bladder problems, mostly incontinence. Her doctor in Houston was Ronald Sims, M.D. Shortly after the alleged rape blood was noticed in her urine. Also, she could not void or empty her bladder completely and she had a burning pain when she did urinate. She saw Dr. Sims on October 31, 2003, about these problems. This was eight (8) days following the alleged rape.
Terry Scholton is a Registered Nurse whom Dr. Sims has employed for nine (9) years. The protocol in Dr. Sims' office was for Ms. Scholton to meet with patients to determine the reason for the visit and to get information that would assist the doctor. She did this in an examination room with only Mrs. Croft and Mrs. Scholton present.
Mrs. Croft reported she had been raped in Delaware and since the rape, had developed the above symptoms. Mrs. Croft related her medical problems to the rape. While she previously had had bladder problems, these symptoms were different.
The State has proffered that it intends to have Mrs. Scholton testify as to what Mrs. Croft reported to Mrs. Scholton.
For the same reasons supporting my conclusions with regard to the statements to Ms. Donovan, the Beebe Hospital triage nurse, I find that these are not "testimonial" statements under Crawford. Mrs. Scholton had absolutely no contact with the authorities in Delaware and no contact with the investigation. Mrs. Croft made these statements privately to a nurse she knew and she made them in an effort to obtain medical treatment. It is inconceivable to conclude she would reasonably expect such communications would be used at any trial in Delaware. In fact, from the testimony offered at the evidentiary hearing, it is reasonable to conclude that Mrs. Croft was shocked by what had happened to her and reluctant to discuss it with anyone.
Crawford does not preclude the admission of these statements.
In addition, I find that her statements are admissible as they were statements made for purposes of medical treatment and diagnosis. Mrs. Croft's subjective complaints and her history as to why she may be suffering these complaints fall squarely into D.R.E. 803(4), a firmly rooted hearsay exception. Capano v. State, 781 A.2d at 626.
These statements are admissible. Id. at 616.
RONALD SIMS, M.D.
Dr. Sims is a practicing physician specializing in internal medicine. He was Mrs. Croft's doctor in Houston. Prior to the October 22, 2003, alleged rape, he had treated her for urinary problems which frequently occur to a person of Mrs. Croft's age — incontinence, bladder infections and the like.
When he saw her on October 31, 2003, her specific complaints were that she had difficulty emptying her bladder, urinating was painful and her urine was red.
Dr. Sims was aware of the alleged rape by way of communications from Mrs. Croft's family. Her demeanor was noteworthy. She was depressed and distraught.
Her bladder problems were worse, and he attributed the present symptoms to trauma to the urethra which resulted in blood in her urine and a probable bladder infection. He prescribed a strong antibiotic and antidepressants.
Based upon her physical complaints and emotional state, he spent between 45-60 minutes consulting with Mrs. Croft. This was much longer than he normally spends with his patients.
Mrs. Croft told him she was raped but did not want to talk about it.
Dr. Sims reported that it was important that he know about and communicate with Mrs. Croft about the alleged rape as he was treating not only her physical ailments (with antibiotics) but also was very concerned about her emotional state. Because of her depression, she was not eating or sleeping. Therefore, he prescribed the antidepressants. He also referred her to Dr. Perez, a psychologist.
The State offers Mrs. Croft's hearsay statements that she was raped by way of Dr. Sims under D.R.E. 803(4), the medical treatment and diagnosis exception. I agree they are admissible.
Crawford is no obstacle to the introduction of this testimony for the same reasons discussed above with regard to Mrs. Scholton. Dr. Sims was not an agent for any prosecutorial agency and it is inconceivable that Mrs. Croft could have thought about or reasonably expected her statement that she was raped to be used in a trial in Delaware.
Dr. Sims, like the other medical providers, testified it is important in his treatment of the physical complaints of urinary problems to know about the rape. That also makes common sense. If symptoms are different or worse than what a patient previously has reported, then the medical provider wants to know what has happened; i.e., causation. Also, because he was seeing a depressed, distraught seventy-nine-year-old patient, it was important, as to her emotional status, for him to talk to her about the rape.
The exception under D.R.E. 803(4) is based on the reasoning that a person who is talking with a medical provider about their personal medical issues or problems is going to be honest in their reports to the medical providers. Mrs. Croft's private communications to her doctor about what happened to her clearly fall into this category. Since they fall within a firmly rooted hearsay exception, there is no additional Confrontation Clause issue. Capano v. State, 781 A.2d at 616, 626.
The statement of Mrs. Croft to Dr. Sims about being raped is admitted.
DIANE MURRAY
Diane Murray is the daughter of Ms. Croft. She reported that her mother was seventy-nine (79) years old at the time of the alleged rape. Mrs. Croft's husband, who was Mrs. Murray's father, died in 1977. Mrs. Croft lived alone and independently after his death.
Mrs. Murray testified that her maternal grandparents acquired the Rehoboth property prior to her mother's birth and that thereafter, her mother visited Rehoboth every summer for her entire life up until the alleged rape.
When her mother returned to Houston, she told Mrs. Murray she would "never go back in that house again" and she did not.
The State proffers the "never go back in that house again" comment as relevant to establish inferentially that a rape had occurred in that house and that is why she announced she would not return to a place she loved and which was an integral part of her life. The State argues it is a statement of her then existing state of mind exhibiting her intent.
The comment was made in Texas at a time immediately following the alleged rape but there was no arrest and no prosecution pending at the time she said it. There is nothing to suggest it was testimonial in nature. It was a causal comment precipitated by an unfortunate event in the declarant's life as reported by the declarant. There is no Crawford confrontational problem.
Considering the five factors of Derrickson, I agree that the hearsay is admissible under D.R.E. 803(3). It is relevant and it related to her then state of mind at the time she made the comment. It was made in a conversation about one of her favorite places and there is nothing to suggest any suspicious or sinister motives. D.R.E. 803(3) is a firmly rooted hearsay exception. Capano v. State, 781 A.2d at 616-17.
The statement is admissible.
JOHN CROFT
John Croft is the son of Jean Croft. He testified also as to his mother's strong connection to Rehoboth.
He stated his mother never dated anyone following her husband's death in 1977.
In June of 2003, he brought his mother to Rehoboth. In early August, he visited and on August 6, he met Mr. Johnson, who was doing "handyman" work for a neighbor. He hired Mr. Johnson to help with necessary repairs to his mother's house.
Over the next few days, they worked together on the house, both inside and outside. When he left to return to Texas, he left paint and payment for Mr. Johnson to paint two upstairs bedrooms. He gave Mr. Johnson his phone number in case Mr. Johnson had any problems or if he needed more money. He stated Mr. Johnson was familiar with the house.
Later in the month, his mother told him that Mr. Johnson had taken a bike from the property. He was arrested for burglary and theft. Also, he had come to a window at night and scared her. She was afraid of him. She did not want him prosecuted as she feared him and thought if the charges were dropped, he would leave her alone.
He testified that Mr. Johnson called "collect" and asked for the burglary charges to be dropped. The AT T phone bill was introduced. During the phone conversation, Mr. Croft told Mr. Johnson to "stay away" from his mother's home.
As to the alleged rape, Mr. Croft testified he regularly called his mother, usually in the morning. On October 22nd, he called just prior to getting to his office. He knew something was terribly wrong as soon as his mother said hello. Her voice was trembling. He asked what was wrong. She reported a black man had come into the house, stood over her bed, and stolen her money. He threatened to come back and get her if she called the police. She had stayed up all night with the lights on. She was terrified and still in "panic mode". She told her son not to call the police and when he suggested the police must be notified, she hung up on him for the first and only time in her life.
After getting to work, he reported this conversation to his sister, Holly, who is employed at his company. She immediately called her mother. Her mother reported to Holly that she had been raped.
Mr. Croft then called his mother and insisted the police be called. His mother was still adamant that no report be made, but nevertheless, he called the Rehoboth Police Department. He then called her again and said the police were on their way. Then he made arrangements to get back to Delaware.
— State of mind exception —
The State wants to use Mrs. Croft's fear of Mr. Johnson arising from the burglary and the window episode as circumstantial and inferential evidence that she would not, weeks later, have consensual intercourse with Mr. Johnson. The State seeks to introduce it under D.R.E. 803(3) as it pertains to her state of mind.
These statements pre-dated the alleged rape so obviously there could be no investigation or belief the statements would be used at trial. They were made in a mother-to-son conversation under circumstances where she wanted no prosecution on the burglary. There are no Crawford confrontation issues that would bar their admission.
In considering the Derrickson factors, I find the State's theory of relevancy is reasonable and the testimony relates to her state of mind at the time she allegedly made the statements. The statements were made in a natural manner based upon the subject matter of the conversation and there is nothing to suggest suspicious or sinister circumstances or motives. They are admissible under D.R.E. 803(3).
While Mrs. Croft's statements as to her fear of Mr. Johnson is relevant to her state of mind, the underlying reasons for her fear (that Mr. Johnson burglarized her house and came to her window) are historical and would not be admissible pursuant to Capano v. State, 781 A.2d at 611-12. Nevertheless, the reasons for any fear possibly may be presented to the jury through other evidentiary means. Mr. Johnson pled guilty to the burglary. Mr. Johnson was ordered to stay away from Mrs. Croft as a condition of his bond. The separate evidentiary issues and any necessary Getz v. State issue will be resolved at trial.
Getz v. State, 538 A.2d 726 (Del. 1988).
— Excited utterance exception —
The State desires to use the statements of Mrs. Croft in the telephone conversation between Mrs. Croft and her son to establish that there was a burglary or robbery by a black man and inferentially, there was no consent by Mrs. Croft to sexual intercourse.
The report of Mrs. Croft was not "testimonial" under Crawford. She was not speaking to anyone whose goal was to preserve her testimony for trial. She did not want the police involved. She had no expectation of its use at a later trial.
I find the telephone conversation of Mrs. Croft with her son to be an excited utterance under D.R.E. 803(2). The testimony was that she was terrified and stayed up all night with the lights on. Her voice trembled and Mr. Croft best described her demeanor as being in a "panic mode". The statement was about a startling event and it related to the startling event. Even though it was made hours after the startling event (the alleged rape), the evidence establishes that Mrs. Croft was still laboring under the stress of the event.
As explained in Culp v. State, 766 A.2d 486, 490-91 (Del. 2001), the amount of time which has passed does not determine if a statement falls within this exception:
The amount of time that has elapsed between the making of the statement and the startling event is an important, but not dispositive consideration, in determining whether the declarant was in an excited state when the statement was made. Therefore, the analysis must focus on the condition of the declarant at the time the statement was made. When conducting this analysis, a court must carefully consider all the factors present. n7
n7 Other factors that may be pertinent to the analysis are the nature of the startling event, whether the statement was made in response to questioning, the nature of the declarant, and whether the statement is self-serving. [Citation omitted.]Accord People v. Noble, 178 N.W.2d 118 (Mich.Ct.App. 1970) (Seventy-year-old woman's statement to a caretaker twelve hours later that a janitor of an apartment building had attempted to rape her was admissible because she was highly excited and upset when she made the statements and the court considered the possibility that her fear of another attack may have caused the delay in detailing the incident).
D.R.E. 803(2) exceptions are firmly rooted hearsay exceptions, and consequently, are admissible without Confrontation Clause issues. Warren v. State, 774 A.2d 246, 254 (Del. 2001).
This evidence is admissible.
HOLLY HARDIN
Holly Hardin is a second daughter of Mrs. Croft.
She also testified as to the burglary and bike theft charges as well as her mother's fear of Mr. Johnson because he was at the house at an inappropriate time of night, i.e., the window incident. Mrs. Croft reported she was afraid of Mr. Johnson.
After her brother reported his conversation with their mother the morning of October 22, 2003, she immediately called her mother. When she asked if he had harmed her, she said her mother said "yes, he raped me". She testified that her mother was "terrified", "shell shocked", "frightened" and "fragile". She said her mother's voice was trembling in her conversation.
Her mother stated that she was seventy-nine-years-old and could not believe it had happened. She stated that she thought she was going to have a heart attack. She also related that the black man said he would come back if she called the police.
The next day, after flying up from Texas, she saw her mother at The Boardwalk Plaza hotel. Her mother was still extremely upset and afraid to be alone. Her mother "freaked out" when she left the room momentarily to get ice.
Her mother also told her she could never go back to the house; that "my house has been taken from me."
— State of mind exception —
For the same reasons as stated in the John Croft portion of this ruling, there are no Crawford "confrontation" obstacles to the admission of the testimony pertaining to Mrs. Croft's fears of Mr. Johnson. Without belaboring what I believe to be the obvious at this stage of this ruling, I find that the hearsay status of Mrs. Croft to Mrs. Hardin as to the fears of Mr. Johnson which Mrs. Croft expressed prior to the alleged rape are admissible for the same reasons as stated in the analysis above under D.R.E. 803(3). The statements are relevant and relate to her fear. They relate to her then state of mind. They were communicated in a normal manner and there is no circumstance to conclude they were made under suspicious circumstances or for sinister motives. For the same reasons aforestated, the historical reasons for her fear (the burglary and appearance at her window) are inadmissible pursuant to Capano v. State, 781 A.2d at 611-12, but, as previously noted, the bases for the fears possibly may be revealed to the jury if the State is successful as to a Getz analysis or they may be revealed through the defendant's statement.
— Excited utterance exception —
The statements made to Mrs. Hardin on October 22, 2003, as to being raped are admissible as excited utterances under D.R.E. 803(2) for the same reasons as stated in the analysis as to John Croft and likewise there are no Confrontation Clause issues as to these excited utterances.
— State of mind exception —
Mrs. Croft's demeanor and her comments at The Boardwalk Plaza about not being able to go back to the house are relevant to inferentially establish that she had not engaged in consensual sex with the black man who came into her house. Crawford's "testimonial" hearsay prohibition is not implicated as none of the alleged statements were made in anticipation of any investigation or trial. The testimony established that Mrs. Crawford was humiliated and terrified and the last thing she wanted was a public trial. With regard to their admissibility under the hearsay rule, again, the same reasons apply to this analysis as aforestated. They related to her then existing state of mind and her intent. They are admissible under D.R.E. 803(3). The statements are relevant as to the inferences on the consent issue. They related to her existing state of mind or intent. While the circumstances of what happened to Mrs. Croft are alleged to be abnormal, the conversation about the event is normal. There are no suggestions of any suspicious circumstances or sinister motives.
Since they are admissible through D.R.E. 803(3), a firmly rooted hearsay exception, there are no further Confrontation Clause issues. Capano v. State, 781 A.2d at 616.
FRANCISCO PEREZ, Ph.D.
Dr. Perez is a clinical and neural psychologist. He obtained his Ph.D. in 1972 at the University of Florida. He has been licensed to practice in the State of Texas for the past thirty-three (33) years.
At the request of Dr. Sims, he saw Mrs. Croft. He only saw her once. That was on November 26, 2003. His opinion was that Mrs. Croft was in a great deal of denial, which is not unusual. She just wanted it over with. She did not want to face it or talk about the rape in any detail. She was an independent person who did not want to exhibit emotional weakness.
In their counseling session, she did report she was raped in Delaware and that it was a very bad experience.
For the same reasons discussed above as to the aforementioned medical providers other than the SANE nurse, there are no Crawford testimonial issues. The comments by Mrs. Croft in Texas to the psychologist could not have been made in expectation or anticipation of any trial in Delaware.
Dr. Perez was seeing her because of Dr. Sims' concerns about her emotional and mental well-being. He is a clinical psychologist and his practice includes patients, many elderly, who have experienced traumatic events. I am satisfied his questions were not for purposes of preserving her testimony for trial. It was not for any criminal justice purposes.
Mrs. Croft's report of being raped is admissible as a statement made for medical treatment or diagnosis. The fact that Dr. Perez is a psychologist as opposed to being a medical doctor makes no difference as to the analysis with D.R.E. 803(4) so long as the Court is satisfied the following foundation has been established: 1) declarant's motive must be consistent with the purpose of promoting treatment and declarant must be aware that the diagnosis and treatment of her ailment depends on the accuracy of statements; 2) the doctor must reasonably rely on this sort of information in diagnosis or treatment; and 3) the Court has conducted a proper D.R.E. 403 analysis and determined that the probative value is not substantially outweighed by the danger of unfair prejudice. Capano v. State, 781 A.2d at 623-25.
I am satisfied that Mrs. Croft knew why she was seeing Dr. Perez. Her family and Dr. Sims were worried about her emotional state and wanted her to see a professional to help her deal with her depression and/or emotional stress. I am satisfied that she knew she should be accurate in her communications with the doctor as to the "why" of the visit even though she did not want to discuss her feelings and emotional state in any detail. Knowledge of the triggering event is something any mental health provider would want and need to know in determining a plan of treatment and counseling. The Court shall make the D.R.E. 403 analysis at trial based upon the then "lay of the land". Prior to calling Dr. Perez, the State should seek a D.R.E. 403 ruling.
MEDICAL RECORDS
The State desires to use the business records exception of D.R.E. 803(6) to obtain admission of the reports of Mrs. Croft to the medical personnel. The State has represented that the witnesses to whom these reports were made (and ultimately recorded) are available to testify. I am not inclined in this post- Crawford environment to permit double hearsay since the witnesses are available to testify. I deny the State's request to admit the hearsay through these records rather than the witnesses themselves.
In D.R.E. 803(6), it is provided:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
* * *
(6) Records of regularly conducted activity. A memorandum, report, record or data compilation, in any form, of acts, events, conditions, opinions or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with D.R.E. 902(11), D.R.E. 902(12) or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation and calling of every kind, whether or not conducted for profit.