Opinion
No. 53137-9-I
Filed: February 28, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 03-1-00256-5. Judgment or order under review. Date filed: 09/26/2003. Judge signing: Hon. Patricia H. Aitken.
Counsel for Appellant(s), Eric Broman, Nielsen Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Sabrina Katie Housand, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), Catherine Marie McDowall, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
James Morrissey Whisman, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), testimonial hearsay evidence is inadmissible at trial unless the defendant had the opportunity to cross-examine the declarant. After an altercation, Denise Rivers made statements to emergency medical personnel and to a doctor identifying Matthew Rivers, her husband, as her assailant. Denise did not appear at Matthew's trial for second degree assault. Defense counsel introduced Denise's statements to the medical personnel during cross-examination, and the State later introduced her statements to the doctor during direct examination. In initially introducing Denise's statements after the State completed direct examination of two witnesses and had refrained from eliciting identification evidence, the defense waived any error in admitting those statements. We affirm Matthew's conviction of third degree assault.
Because Matthew and Denise Rivers have the same last name, we will refer to them by their first names.
FACTS
On January 24, 2003, at about 9 p.m., several residents of the Panther Lake Apartments in Federal Way heard a woman screaming outside the apartments. Lori Trezza, her daughter Stephanie, and Scotty Snickers went outside and saw Denise and Matthew Rivers. Denise asked the witnesses to call the police because Matthew was threatening her. Officers Donald King and Phillip Demarest responded to the aid call. Both officers testified that Denise had no apparent injuries, did not complain of any pain, and said the incident was only a verbal argument.
On the morning of January 25, Denise called her aunt, Mary Ann Jordan. Denise said she was hurting in her chest and side and was having difficulty breathing. She asked Jordan to take her to the hospital. A few minutes later, Denise called Jordan again with the same complaints. Jordan called 911.
Federal Way firemen Kenneth Winter and Mark McNally responded to the 911 call. Both men testified that police officers were already at the Rivers' apartment when they arrived. Winter and McNally found Denise sitting on the bedroom floor moaning and holding her side. Officer Julianne Ferguson was present while White and McNally were questioning Denise. Denise initially told them she fell the night before. McNally then asked Denise to be honest with him and to say what actually happened. She said she had been hit with a fist the night before.
On direct examination, McNally said that he did not ask Denise to tell them what really happened at the direction of the police. On cross-examination, however, the following occurred:
[Defense counsel]: While you were talking with Denise, did the police officer ever enter into the conversation?
[McNally]: I believe that might be where I got what really happened. There might have been a question as to what happened, and I might have heard it from a police officer that there was an argument last night or something of that nature.
Report of Proceedings (RP) (Aug. 11, 2003) at 164. During cross-examination of McNally, defense counsel asked,
Q: She just said that her husband had hit her in the side?
A: Yes.
RP (Aug. 11, 2003) at 161. During re-cross examination, defense counsel asked McNally
Q: And she told you, `My husband hit me in the ribs?'
A: Yes.
RP (Aug. 11, 2003) at 164. And later, defense counsel asked
Q: My question was, you're 100 percent sure that she didn't she didn't say anything else besides getting punched in the ribs by her husband?
A: I believe she stated that she didn't want her husband to go to jail after that and that's why she didn't want to say that.
RP (Aug. 11, 2003) at 165.
Officer Ferguson testified that she accompanied Denise to the hospital and remained with her throughout the entire time that Denise was being examined. She stated that she stood by during examination and treatment and took a formal statement from Denise after the examination. Doctor Frederick Lo performed the examination. Doctor Lo testified that Denise complained of severe pain and injuries to her right hand, left knee, left chest, and the third and fourth fingers on her right hand. He also stated that Denise told him the knee injury was from a bite, that Matthew had assaulted her the day before, that she was kicked and beaten with fists, and that her hand was slammed in a car door.
Prior to trial, the defense moved to suppress Denise's statements to Winter, McNally, and Dr. Lo. The trial court ruled that statements made for the purpose of medical diagnosis and treatment were admissible under ER 803(a)(4). After a trial to the court, Matthew was found not guilty of second degree assault and guilty of third degree assault.
DISCUSSION
Relying on Crawford, Rivers contends that the trial court erred in admitting Denise's statements to firefighters Winters and McNally and to Dr. Lo. Rivers asserts that the statements were testimonial and inadmissible at trial because Officer Ferguson's presence and participation in White and McNally's interview served investigative and evidence gathering functions and alerted Denise to the fact that her statements would be used in any subsequent trial.
The United States Supreme Court in Crawford held that `[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.' Crawford, 124 S. Ct. at 1374. The Court stated:
[T]he [Sixth Amendment confrontation] Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.
Crawford, 124 S. Ct. at 1370.
The Court noted that the Sixth Amendment applies to `witnesses,' or `those who `bear testimony," and further that "[t]estimony,' in turn, is typically `[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." Crawford, 124 S. Ct. at 1364. The Court stated that `testimonial' hearsay included `at a minimum . . . prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and . . . police interrogations,' Crawford, 124 S. Ct. at 1374, and stated that
[v]arious formulations of this core class of `testimonial' statements exist: `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,' `extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,' and `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.'
Crawford, 124 S. Ct. at 1364 (citations omitted).
Matthew challenges Denise's statements to Winter and McNally and to Dr. Lo that it was her husband who assaulted her. He argues that statements to Winter and McNally were testimonial because they were obtained only after Officer Ferguson interjected a question about the argument the night before and alerted McNally to `what really happened,' prompting him to ask Denise to be honest and tell the truth. Matthew further argues that Denise had shown her awareness that her statements were potential evidence when she said she did not want Matthew to go to jail because of what she said; however, the record is unclear as to exactly when Denise made this statement. Similarly, Matthew challenges Denise's statement to Dr. Lo that Matthew had hit and kicked her, arguing that Officer Ferguson's presence during the doctor's medical examination alerted Denise to the fact that the police had initiated a criminal investigation and her statements would be used at trial.
Because the trial court and the parties did not have the benefit of Crawford, they did not focus on the testimonial nature of Denise's statements. As a result, the record is not sufficiently developed to determine whether the statements are in fact testimonial. We do not have a clear delineation of the chronology or a specific description of Denise's, McNally's, or Officer Ferguson's statements so as to determine exactly what was said, when it was said, or whether Denise or a reasonable person would have expected her statements to be used at trial. Had the parties and the trial court had the benefit of Crawford, they would have created a detailed record that would have provided the information necessary to this determination.
And this court need not reach the Crawford issues in this case because the defense first introduced the challenged identification evidence through its cross-examination of McNally. While a preemptive strategy of introducing evidence expected to be admitted after losing a motion to suppress it does not constitute waiver, State v. Whelchel, 115 Wn.2d 708, 727-28, 801 P.2d 948 (1990); State v. Watkins, 61 Wn. App. 552, 558, 811 P.2d 953 (1991), defense counsel in this case introduced the evidence during cross-examination rather than through a defense witness. And defense counsel elicited the testimony after the State had not presented any evidence that Denise had specifically identified Matthew during its direct examination of either Winter or McNally. In this situation, defense counsel's questioning cannot be said to be preemptive. Matthew waived the issue of admissibility, and we need not address the Crawford issues
Defense counsel may have been proceeding under the assumption that the identity of Denise's assailant was not an issue because the defense theory was that Denise first attacked Matthew. The fact remains, however, that the defense was the first to elicit the identification evidence.
Affirmed.
APPELWICK and AGID, JJ., Concur.