Opinion
Court of Appeals No. A-10955 Trial Court No. 1KE-10-663 CRNo. 5958
06-26-2013
CHARLES A. TEAL JR., Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Mary Gilson, Assistant Attorney General, Office of Special Prosecution and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, First Judicial District, Ketchikan, Trevor N. Stephens, Judge.
Appearances: Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Mary Gilson, Assistant Attorney General, Office of Special Prosecution and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Smith, Superior Court Judge.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
SMITH, Judge.
Charles A. Teal Jr. was convicted of first-degree assault for hitting James Tavares in the face with an oar. On appeal, Teal argues that his Sixth Amendment right to confront the witnesses against him was violated when the trial court admitted Tavares's hospital medical records without requiring that the treating physician testify and be cross-examined as to those records. But as we explain in this opinion, these records were created for the primary purpose of medical treatment, not to create a record for trial, and hence the records were not "testimonial" within the meaning of Crawford v. Washington.
AS 11.41.200.
541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
Factual and procedural background
In August 2010, Teal and Tavares got into a fight. Teal eventually went to his truck, got an oar, and struck Tavares in the face. Tavares got in his car, then "collapsed." His girlfriend testified that Tavares's jaw was "dangling." Tavares was taken to the hospital, where he was diagnosed with a bilateral fracture of the jaw. A state trooper was at the hospital while Tavares was being evaluated; he interviewed Tavares at that time, and Tavares signed a release granting the troopers access to his medical records.
Prior to trial, Teal moved to preclude all medical evidence concerning Tavares's injuries because the State did not plan to call a doctor to testify as to Tavares's diagnosis or treatment. The prosecutor responded that Tavares's medical records were admissible pursuant to the business records exception to the hearsay rule. Teal objected, arguing that the business records exception did not apply and that the records were "testimonial" under Crawford, such that he had a Sixth Amendment right to cross-examine the physician who created them. The trial judge overruled the objection, holding that the records were business records and that they were not "testimonial."
The jury convicted Teal, and he now appeals.
The medical records were not "testimonial"
Teal does not appeal the trial court's decision that Tavares's medical records could properly be admitted as business records pursuant to Evidence Rule 803(6). Rather, he contends that the records were "testimonial," and that he therefore had a Sixth Amendment right under Crawford to confront and cross examine the physician who created the records. Teal focuses his argument on the portion of the records containing the treating physician's diagnosis that Tavares suffered a broken jaw. Teal argues that the state trooper's presence at Tavares's bedside, and Tavares's authorization allowing the troopers to access his medical records, should have signaled to the doctor that the medical records would be used to establish past events in a criminal prosecution. Consequently, according to Teal, the records were created for purposes of a criminal prosecution and hence were "testimonial."
In Crawford, the United States Supreme Court ruled that "testimonial" statements by a witness who does not appear at trial are inadmissible, unless the witness is unavailable and the defendant had a prior opportunity to cross examine the witness. The Supreme Court did not explicitly define what it meant by "testimonial," although it did state that business records generally are not testimonial.
Id. at 56, 124 S. Ct. at 1367.
The Court further addressed the extent to which business records are testimonial in Melendez-Diaz v. Massachusetts. At issue in that case was the admissibility of a laboratory technician's affidavit asserting that the substance tested was cocaine. The Court noted that "[b]usiness and public records are generally admissible absent confrontation ... because — having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial — they are not testimonial." The Court further noted that "medical reports created for treatment purposes ... would not be testimonial under our decision today." The Court ruled, however, that the laboratory technician's affidavit was testimonial, regardless of whether it qualified as a business or public record, because it was created for use at trial.
557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009).
Id. at 324, 129 S. Ct. at 2539-40.
Id. at 312 n.2, 129 S.Ct. at 2533 n.2.
Id. at 324, 329, 129 S. Ct. at 2540, 2542.
This Court addressed whether a statement by an unavailable victim contained in medical records was testimonial in Clark v. State. Drawing upon the United States Supreme Court's decision in Davis v. Washington — which held that a statement to a police dispatcher was not testimonial because the relevant circumstances "objectively indicate[d] [that the] primary purpose [of the statement] was to enable police assistance to meet an ongoing emergency" and not "to establish or prove past events potentially relevant to later criminal prosecution" — we upheld the trial court's decision to admit the statement because it was made for purposes of diagnosis and treatment, not to establish past facts for possible use in a criminal trial.
199 P.3d 1203 (Alaska App. 2009).
547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).
Id. at 828, 126 S. Ct. at 2277. See also Michigan v. Bryant, 131 S. Ct. 1143, 1155, 179 L. Ed. 2d 93 (2011) (relying on "primary purpose" test for both emergency situations and "circumstances [other than] ongoing emergencies").
Davis, 547 U.S. at 822, 126 S. Ct. at 2273-74.
Clark, 199 P.3d at 1208-13.
Melendez-Diaz and Clark are dispositive here. As framed by those cases, the question is whether the doctor's diagnosis that Tavares's jaw was broken was a medical report primarily generated for treatment purposes or for use at trial. The trial court's determination that the doctor evaluated Tavares for purposes of medical treatment is fully supported by the record. Tavares was admitted to the hospital complaining of pain in his jaw and with his jaw "dangling." There is no indication in the medical records that the treating physician took any steps other than to diagnose the medical issue with which he was presented. And the records further indicate that the diagnosis was used as a basis for Tavares's treatment when he flew to Anchorage.
Teal seeks to distinguish Clark on two grounds. First, he argues that the diagnosis in this case was performed in the presence of a trooper, suggesting that the diagnosis might be used in a future criminal prosecution. But the physician was not an employee of the troopers, nor did the trooper who was present ask him to undertake the examination. Second, and more important, the fact that the report might be used in a prosecution does not, standing alone, render the diagnosis testimonial. Rather, the key issue is whether the primary purpose of the physician's report was for treatment, and the record supports the trial court's finding that this was the primary purpose of the report.
See id. at 1212.
Teal further contends that Clark is inapposite because the diagnosis here went to the heart of the State's case. He asserts that absent this evidence, the State could not have proved that the injury was a "serious" injury within the meaning of AS 11.81.900(b)(56). But the question of whether hearsay is testimonial does not hinge on what the hearsay tends to prove. Rather, it hinges on the test set forth in Melendez-Diaz and Clark.
Conclusion
The judgment of the superior court is AFFIRMED.