Opinion
Court of Appeals No. A-8890.
September 6, 2006.
Appeal from the District Court, Third Judicial District, Palmer, Gregory Heath, Judge. Trial Court No. 3PA-04-208 CR.
Laura C. McDonald, Assistant Public Defender, Palmer, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Loretta B. Amouak borrowed a truck from her boyfriend, Travis D. Clark. Apparently Amouak had been drinking, and her driver's license was revoked. Amouak drove the truck into a ditch. Clark and a mutual friend picked Amouak up and drove her to the house she and Clark shared. Amouak ended up in the hospital several hours later with a nose fracture, a black eye, and bruises on her arms, legs, and neck.
According to Amouak's medical records, she told hospital staff that her boyfriend had assaulted her. Amouak did not disclose that she had driven a truck into a ditch.
When Alaska State Trooper Eric Lorring interviewed Clark the next day, he observed that Clark also had injuries: a black eye, a cut on his face, and scratches and bruises on his hands. Trooper Lorring concluded that Clark had been the primary aggressor because he was bigger, his injuries were less severe, and he was evasive when questioned. Based on this incident, the State charged Clark with fourth-degree assault.
AS 11.41.230(a).
At trial, Clark claimed he had acted in self-defense. Amouak refused to testify, asserting her Fifth Amendment right not to incriminate herself because of the evidence that she had committed driving offenses. However, Amouak's medical records were admitted into evidence; those records included Amouak's statements that her boyfriend had assaulted her.
The jury convicted Clark of assault. He appeals his conviction, arguing that his Sixth Amendment right to confront the witnesses against him was violated because the court allowed the State to rely on Amouak's hearsay statements identifying him as her assailant.
District Court Judge Gregory Heath did not reach the merits of Clark's Sixth Amendment claim because he ruled that Clark's objection was untimely. Having reviewed the record, we conclude that Clark timely raised this claim. However, for the reasons discussed below, we cannot resolve Clark's claim on the record before us. Consequently, we remand Clark's case to the district court for further proceedings.
Facts and proceedings
On January 27, 2004, Amouak borrowed Clark's truck, apparently without his permission, and drove it into a ditch, miring it in deep snow. Clark and Kimberly Yadon, a mutual friend of Amouak's and Clark's, picked Amouak up and drove her to the house she and Clark shared. Yadon could see that Clark was angry with Amouak, and she was concerned about leaving Amouak alone with him. But Amouak was also angry; after she called Yadon a "slut," Yadon left.
Several hours later, Amouak telephoned Yadon. Amouak was crying and hysterical, and asked Yadon to pick her up at a store near her and Clark's residence. When Yadon arrived, she saw that Amouak had a black eye, a bruised face, and a swollen nose. Yadon drove Amouak to the hospital. Because Amouak had been drinking and driving without a valid license, Yadon and Amouak agreed not to tell anyone that Amouak had been driving that night. Yadon then called the state troopers to report the assault. According to Amouak's medical records, Amouak told hospital staff that her boyfriend had assaulted her and that a friend had found her in a snowbank after the assault.
During trial, the court admitted, without objection, the medical records pertinent to this incident. Those records documented Amouak's injuries and her statements identifying Clark as her assailant.
Following Yadon's testimony that Amouak had been drinking and driving with a revoked license, Judge Heath appointed an attorney to advise Amouak that she risked incriminating herself if she testified. Following several days of negotiation, the State refused to grant Amouak immunity from prosecution, and Amouak asserted her Fifth Amendment right not to incriminate herself. Clark then objected, for the first time, to the previously admitted assertions in Amouak's medical records that Clark had assaulted Amouak, arguing that those statements were inadmissible hearsay. Judge Heath ruled that Clark's objection was untimely, and that he had waived his claim.
Clark then moved to strike the statements on the ground that their admission violated his Sixth Amendment right to confront the witnesses against him. This issue Judge Heath found more troubling. Judge Heath and the prosecutor agreed that it was "standard procedure" to redact these types of hearsay statements "[w]hen the defense objects," and Judge Heath wondered whether the defense attorney's failure to do so rose to the level of ineffective assistance of counsel. But in the end, Judge Heath ruled that Clark had waived this claim by not objecting when the medical records were first offered.
Clark appeals the district court's decisions.
Did Judge Heath err when he admitted the medical records containing Amouak's assertions that Clark had assaulted her, and when he later refused to strike this evidence?
At trial, Clark did not object when the State introduced a large portion of Amouak's medical records from the night of the incident. On appeal, Clark argues that several assertions in those records should have been excluded as inadmissible hearsay: Amouak's statements (1) that her boyfriend had assaulted her and (2) that a friend had found her in a snowbank after the assault. Clark concedes that he did not object to these statements when they were offered but claims that their admission was plain error.
The State acknowledges that Amouak's out-of-court statements identifying Clark as her assailant might properly have been excluded if Clark had made a timely hearsay objection. In Johnson v. State, the Alaska Supreme Court held as a matter of law that a domestic violence victim's statements to her doctor identifying her assailant do not fall within Alaska Evidence Rule 803(4), the hearsay exception for statements made for purposes of medical diagnosis or treatment. The supreme court explained that "statements fixing fault and indicating the identity of an assailant are not relevant to medical diagnosis or treatment" and that such statements "lack assurances of reliability and should be excluded."
579 P.2d 20 (Alaska 1978).
Id. at 22.
Id.; see also Sluka v. State, 717 P.2d 394, 399 (Alaska App. 1986).
But the admissibility of hearsay statements under Evidence Rule 803(4) does not hinge on whether the declarant is available to testify, and Clark did not object to this hearsay when it was offered. Clark has therefore not shown error, much less plain error. As we explained in Cassell v. State:
645 P.2d 219 (Alaska App. 1982).
Because it is proper at the trial court level to receive hearsay when no objection has been made, application of the plain error doctrine will rarely, if ever, be appropriate on this issue at the appellate level. It is difficult to see how plain error could be found when, under settled law, admission of hearsay is not error at all in the absence of timely objection.
Id. at 221 (citing Hayes v. State, 581 P.2d 221, 222 n. 2 (Alaska 1978)).
We conclude that Judge Heath did not err by admitting the hearsay testimony that Clark now challenges or by denying Clark's belated motion to strike Amouak's statements on hearsay grounds.
Clark argues in the alternative that the admission of Amouak's hearsay statements violated his rights under the Confrontation Clause as interpreted by the United States Supreme Court in Crawford v. Washington. Clark claims that Amouak's out-of-court statements are the type of "testimonial" statements that, under Crawford, are inadmissible at trial unless the declarant testifies or the defendant had an earlier opportunity to cross-examine the declarant about the statements.
541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
Why we conclude that Clark's objection was timely
As noted previously, Clark did not object to the admission of Amouak's medical records at the time they were offered. Clark first moved to strike these statements on Confrontation Clause grounds at the close of the State's case, when it became clear that Amouak would not testify.
Judge Heath ruled that Clark's Confrontation Clause objection was untimely. But in Parker v. State, we suggested that a defendant's late Confrontation Clause objection might be excused if, when the testimony was first offered, the defendant reasonably believed the declarant would take the stand. Having reviewed the record, we conclude that this was true in Clark's case.
779 P.2d 1245 (Alaska App. 1989).
Id. at 1250.
During trial, the parties and the court all proceeded under the assumption that Amouak would testify. In its opening statement, the State declared its intent to call Amouak as a witness. The prosecutor provided the jury with a fairly detailed account of what Amouak would say: that Clark had punched her repeatedly, that she heard her nose break, and that she eventually made it to the door and fled the house. When Judge Heath ruled on the admissibility of Amouak's medical records, he observed that Amouak could "testify to everything she did at the hospital that night . . . and then . . . she's subject to cross examination on whether her story is true. And that's really what this case comes down to, is the truth of her story versus the truth of [Clark's] story[.]" Up until the moment Amouak asserted her Fifth Amendment privilege, the prosecutor expressed her continuing belief that Amouak would testify. Furthermore, Clark had no role in bringing about Amouak's unavailability; rather, Judge Heath sua sponte advised Amouak that she risked incriminating herself by testifying. And as soon as it became clear that the State would not grant Amouak immunity and that Amouak would refuse to take the stand, Clark made his motion to strike Amouak's previously admitted hearsay statements on Confrontation Clause grounds.
Given this record, we conclude that the district court abused its discretion by ruling that Clark waived this claim by not objecting earlier. We therefore turn to the merits of Clark's Sixth Amendment argument.
Why we cannot resolve Clark's Confrontation Clause claim on the record before us
At trial, Clark only moved to strike Amouak's out-of-court statements identifying her boyfriend as her assailant; he did not move to strike her separate assertion that a friend had found her in a snowbank after the assault. We therefore confine our discussion to Amouak's statements identifying Clark and treat any other claims as waived.
See Alaska R. Evid. 103(a)(1); Gilbert v. State, 598 P.2d 87, 92 (Alaska 1979) ("[T]he basic rule is that failure to object to offered evidence waives the objection.").
The Confrontation Clause of the Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." In Crawford, the United States Supreme Court construed this guarantee to prohibit the government from introducing "testimonial" statements of a witness who does not testify at trial unless (1) the government demonstrates that the witness is unavailable to testify and (2) the defendant had a previous opportunity to cross-examine the witness about the hearsay statements. Non-testimonial statements do not implicate the Confrontation Clause and are admissible as long as they fall within a hearsay exception.
Davis v. Washington, ___ U.S. ___, 126 S. Ct. 2266, 2273, 165 L. Ed. 2d 224 (2006); Crawford, 541 U.S. at 51, 124 S. Ct. at 1364.
In this case, it is undisputed that Clark had no previous opportunity to cross-examine Amouak about the statements in her medical records. Therefore, in evaluating whether Clark's Confrontation Clause rights were violated, the only issue is whether the challenged statements were "testimonial" under Crawford.
The Crawford Court did not define "testimonial." But it did enumerate "[v]arious formulations" of the "core class" of testimonial statements: (1) "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"; (2) "extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions"; and (3) "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, 541 U.S. at 51-52, 124 S. Ct. at 1364.
The Court stopped short of endorsing any of these definitions because the statements at issue in Crawford — statements made during structured, custodial police interrogation of a possible suspect — qualified as testimonial "under any conceivable definition."
Id. at 53 n. 4, 124 S. Ct. at 1365 n. 4; see also Davis, ___ U.S. ___, 126 S. Ct. at 2273.
More recently, in Davis v. Washington, the Supreme Court determined more precisely the type of police interrogations that produce "testimonial" statements. In Davis, the challenged statements were made to a 911 emergency operator by a woman who called 911 in the heat of a domestic disturbance involving her former boyfriend, Davis. (The Court assumed, for purposes of its decision, that 911 operators are agents of the police when they interrogate 911 callers.) Davis was eventually charged with felony violation of a domestic no-contact order. The victim did not testify at Davis's trial, so the only evidence identifying Davis as the offender was the victim's statements to the 911 operator.
Id. at 2270-71.
Id. at 2274 n. 2.
Id. at 2271.
Id.
The Supreme Court concluded that the victim's statements identifying Davis were not "testimonial" under Crawford. The Court explained:
When we said in Crawford that "interrogations by law enforcement officers fall squarely within [the] class" of testimonial hearsay, we had immediately in mind (for that was the case before us) interrogations solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator. The product of such interrogation, whether reduced to a writing signed by the declarant or embedded in the memory (and perhaps notes) of the interrogating officer, is testimonial. It is, in terms of the 1828 American dictionary quoted in Crawford, "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.". . . A 911 call, on the other hand, and at least the initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to "establis[h] or prov[e]" some past fact, but to describe current circumstances requiring police assistance.
Id. at 2276-77.
The Court then identified the factors that led it to conclude that the statements in Davis were not testimonial. In large part, the Court's decision hinged on its determination that the statements were offered and elicited to resolve a present emergency, rather than to establish events that had happened in the past:
The difference between the interrogation in Davis and the one in Crawford is apparent on the face of things. In Davis, [the victim] was speaking about events as they were actually happening, rather than "describ[ing] past events[.]" Sylvia Crawford's interrogation, on the other hand, took place hours after the events she described had occurred. Moreover, any reasonable listener would recognize that [the victim in Davis] (unlike Sylvia Crawford) was facing an ongoing emergency. Although one might call 911 to provide a narrative report of a crime absent any imminent danger, [the victim's] call was plainly a call for help against bona fide physical threat. Third, the nature of what was asked and answered in Davis, again viewed objectively, was such that the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn (as in Crawford) what had happened in the past. That is true even of the operator's effort to establish the identity of the assailant, so that the dispatched officers might know whether they would be encountering a violent felon. And finally, the difference in the level of formality between the two interviews is striking. Crawford was responding calmly, at the station house, to a series of questions, with the officer-interrogator taping and making notes of her answers; [the victim's] frantic answers were provided over the phone, in an environment that was not tranquil, or even (as far as any reasonable 911 operator could make out) safe.
We conclude from all this that the circumstances of [the victim's] interrogation objectively indicate its primary purpose was to enable police assistance to meet an ongoing emergency. She simply was not acting as a witness; she was not testifying.
Id. at 2276-77 (emphasis in original).
The Court went on to observe, without deciding the issue, that the victim's statements in Davis may have become testimonial once the emergency ended and the 911 operator instructed her to be quiet and directed her to respond to a battery of questions. But the Court noted that these types of evidentiary concerns presented no great problem for trial courts, which could redact or exclude the testimonial portions of any statement.
Id. at 2277.
Id.
The Court considered the statements at issue in Crawford and Davis to be the product of police "interrogation." (The Court did not define "interrogation," except to say that it used the term in a "colloquial, rather than any technical, legal sense.") But in Davis, the Court emphasized that its holding did not "imply . . . that statements made in the absence of any interrogation are necessarily nontestimonial." The Court noted that, even with respect to statements made during an interrogation, "it is in the final analysis the declarant's statements, not the interrogator's questions, that the Confrontation Clause requires us to evaluate."
Id. at 2274 n. 1; Crawford, 541 U.S. at 53, 124 S. Ct. at 1365.
Crawford, 541 U.S. at 53 n. 4, 124 S. Ct. at 1365 n. 4.
___ U.S. ___, 126 S. Ct. at 2274 n. 1.
Id.
In Clark's case, the trial court could have reasonably inferred — from, among other things, the passage of time and the undisputed evidence that Yadon and Amouak agreed to lie about the fact that Amouak had been driving that night — that Amouak had time to reflect on her statements and knew that criminal charges were possible. But beyond that, the record is largely silent as to the context or purpose of the challenged statements. The initial Patient Assessment Report, apparently completed by a nurse, notes that the assault had occurred about forty-five minutes earlier, at 9:30 p.m. The report also states: "Assaulted by boyfriend tonight . . . has not called the police." The report does not specify the source of this statement — for instance, whether it was made by Amouak or by Yadon, the friend who accompanied her to the emergency room.
This assertion is repeated and elaborated on in the attending physician's notes, which state: "Assaulted by BF @ home ~ [9:30]. Found by friend in snowbank." In his typed report, the physician again states that Amouak "reports she was assaulted by her boyfriend at about 9:30 this evening." But it is not clear whether the doctor was reporting what Amouak told him or whether he was relying, in whole or in part, on the Patient Assessment Report or on statements made by Yadon or others. Clark suggests that the investigating trooper may have been present when the doctor treated Amouak for her injuries, but there is nothing in the medical records to substantiate or refute this claim.
From this record, we cannot determine with any certainty who the challenged statements were made to, who was present to hear them, or, indeed, whether it was even Amouak who made the statements. The record does not show whether the statements were volunteered or made in response to questioning — and, if so, whether the questioning was structured interrogation. Nor do we know if the statements were offered or elicited for purposes of medical diagnosis or treatment, to document the events of the evening, or overtly or implicitly to aid the troopers in their criminal investigation. In sum, it is impossible to determine from the existing record whether Amouak was acting as a witness as that term is used in Crawford and Davis — and thus whether the court's refusal to strike the challenged statements violated Clark's right to confront the witnesses against him.
We also cannot say that the error, if any, was harmless beyond a reasonable doubt. Clark claimed self-defense. In his opening statement, he asserted that Amouak had attacked him and that he had acted to protect himself. There was some evidence to support this defense. Yadon testified that Amouak had been drinking that night and that she was angry. Trooper Lorring testified that he observed injuries to Clark's hands and face that were similar to, though less severe than, Amouak's injuries.
Clark also attacked Amouak's credibility, arguing that she had "concocted an elaborate story" to avoid prosecution for her driving offenses. To support this claim, he pointed to undisputed testimony that Amouak and Yadon had lied to the troopers about Amouak's driving that night.
The main question before the jury was thus not whether Clark had caused Amouak's injuries but whether Amouak had credibly asserted that her injuries resulted from an assault. Amouak's out-of-court statements were the only direct evidence on this issue. Because there is a reasonable possibility that these statements affected the jury's verdict, we cannot say that any error was harmless beyond a reasonable doubt.
See Benefield v. State, 559 P.2d 91, 96 (Alaska 1977); Hazelwood v. State, 962 P.2d 196, 198 (Alaska App. 1998).
The district court cannot properly evaluate whether the challenged statements were testimonial under Crawford without a factual record establishing who made the statements and the context and purpose of those statements. We therefore remand the case for an evidentiary hearing. The district court shall determine whether Amouak made these statements and, if so, whether the statements were testimonial.
Clark separately contends that Judge Heath abused his discretion when he ruled that evidence that Clark had assaulted Amouak twice before was admissible under Alaska Evidence Rule 404(b)(4). He argues that the State's offer of proof that he had committed the prior assaults was inadequate. But the evidence Clark challenges was never admitted under Rule 404(b)(4). Hence, we need not review Judge Heath's ruling on this issue.
Conclusion
We REMAND the case to the district court for further proceedings consistent with this opinion. The district court shall transmit its findings to this court within seventy-five days. Within thirty days after we receive the district court's findings, each party may submit a supplemental memorandum addressing those findings. We retain jurisdiction of this appeal.