                IN THE SUPREME COURT OF IOWA
                              No. 07–0449

                          Filed February 6, 2009


STATE OF IOWA,

      Appellee,

vs.

SESSIONS LAMONT HARPER,

      Appellant.



      Appeal from the Iowa District Court for Webster County, Allan L.

Goode, Judge.



      Appellant challenges admissibility of victim’s statements under the

Confrontation Clause. AFFIRMED.



      Thomas J. Miller, Attorney General, Kevin Cmelik and Scott

Brown, Assistant Attorneys General, and Timothy N. Schott, County

Attorney, for appellee.



      Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,

Assistant State Appellate Defender, for appellant.
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STREIT, Justice.

      A badly-burned woman was brought to the emergency room.

When the attending doctor asked what had happened, she responded,

“Sessions Harper raped me, tied me, and set my house on fire.” Holly

Michael died eighteen days later from the burns.           At trial, Harper

objected to Michael’s statements, claiming their admission violated his

right to confrontation as guaranteed by the Sixth Amendment.            The

district court determined the statements were admissible under the

forfeiture-by-wrongdoing    exception    to   the   Confrontation   Clause.

Because Michael’s statements were nontestimonial, the Confrontation

Clause does not exclude them. We affirm Harper’s convictions.

      I. Background Facts and Prior Proceedings.

      On the evening of January 7, 2006, Holly Michael, Ashleigh Attig,

Becky Sittig, and Sessions Harper hung out at Michael’s house in Fort

Dodge drinking, smoking marijuana, and using cocaine.          Shortly after

midnight, they all went to a local bar for about an hour, where they all

drank more.    The four returned to Michael’s house around 1:45 a.m.

Sometime during the party, Harper and Attig, the mother of Harper’s

child, had sex in Michael’s bedroom.          Harper, Sittig, and Attig left

Michael’s house around 4:30 a.m. Between 4:38 and 6:35, Harper made

eight calls from his cell phone to Michael’s residence.

      Later that morning, several neighbors noticed a red car with a

colored lei hanging from the rearview mirror parked near Michael’s home.

At 9:30, one of the neighbors saw an African-American male seated in

the car. Shortly thereafter, a couple driving past Michael’s home noticed

it was on fire and called the fire department.

      When the fire department arrived, a fireman found Michael in the

basement, laying face down, hands and feet bound, and wrapped in a
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burning comforter.     Even after firemen and paramedics removed the

comforter, material attached to Michael’s body was still on fire. In the

ambulance, en route to the hospital, Michael insisted she wanted to die.

The paramedic poured saline on Michael to put out the smoldering

material attached to her body.      Her hands and arms were severely

burned, and the fingers on her left hand were charred off.

      When Michael arrived in the emergency room, an x-ray technician

heard Holly say, “please don’t kill me” and “Harper did it, Harper did it.”

One of the treating physicians initially thought Michael was dead based

on the severity of her burns.    After he discovered she was alive and

conscious, he asked her what had happened.        She said that Sessions

Harper had raped her, tied her, and set her house on fire. The doctor

asked her to repeat what she had said, and Michael again said that

Sessions Harper had raped her, tied her, and set her house on fire.

Another physician treating Michael also heard what she had said. Based

upon Michael’s statements, a doctor performed a rape kit examination.

Another attending physician treating Michael asked her who had done

this, and Michael replied “Sessions Harper. He tied me up, raped me,

and left me in the basement.” Due to the severity of her burns, Michael

was airlifted to Iowa City.

      Michael’s mother reported that Michael mouthed the word

“Sessions” over and over again from her hospital bed. Sixty percent of

her body had third- and fourth-degree burns, some to the bone.         Her

arms had to be amputated.      Eighteen days after the incident, Michael

died from complications from the burns and inhalation injuries.

      An investigation revealed that separate fires had been intentionally

started in Michael’s house and the fire alarms had been disabled.

Michael’s jeans and a condom containing Harper’s DNA on the inside
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and Michael’s DNA on the outside were found in Michael’s bedroom, and

a pair of sunglasses bearing Harper’s fingerprint and blood was found in

the basement.     Tests showed a mixture of gasoline and petroleum

product had been poured on Michael.

      Harper was arrested and charged with first-degree sexual abuse,

kidnapping, murder, and arson.           Harper filed a motion in limine

requesting Michael’s statements to medical personnel at the hospital be

excluded on the grounds the statements were hearsay and violated

Harper’s right of confrontation.     The district court entered an order

allowing the State to use Michael’s statements at trial. At trial, Harper

was found guilty of all charges and sentenced to three life sentences and

one sentence of twenty-five years.    Harper appeals, claiming Michael’s

statements were hearsay and violated the Confrontation Clause and

ineffective assistance of counsel for failing to object to an unnecessarily

suggestive car identification.

      II. Scope of Review.

      We review claims involving the Confrontation Clause de novo.

State v. Bentley, 739 N.W.2d 296, 297 (Iowa 2007). We review hearsay

claims for errors at law. State v. Newell, 710 N.W.2d 6, 18 (Iowa 2006).

However, hearsay must be excluded “unless admitted as an exception or

exclusion under the hearsay rule or some other provision.”        State v.

Dullard, 668 N.W.2d 585, 589 (Iowa 2003). “This means a district court

has no discretion to deny the admission of hearsay if the statement falls

within an enumerated exception. . . .” Id. Thus, “[w]e will reverse the

trial court’s ruling only when there has been an abuse of its discretion in

ruling on the circumstances triggering this exception.” Bratton v. Bond,

408 N.W.2d 39, 44 (Iowa 1987).
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      III. Merits.

      A.    Hearsay exceptions.       Michael’s statements that Sessions

Harper raped her, tied her, and burned her house are hearsay and

therefore are not admissible unless they qualify under an exception.

Iowa R. Evid. 5.802. Hearsay is “a statement, other than one made by

the declarant while testifying at the trial or hearing, offered in evidence to

prove the truth of the matter asserted.” Iowa R. Evid. 5.801(c). Michael’s

statements to hospital staff are admissible under two exceptions to the

hearsay rule, excited utterance and dying declaration.        Iowa Rs. Evid.

5.803(2), 5.804(b)(2).

      An excited utterance is 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.” Iowa R. Evid. 5.803(2). “The rationale

behind the exception is that statements made under the stress of

excitement are less likely to involve deception than if made upon

reflection or deliberation.” State v. Tejeda, 677 N.W.2d 744, 753 (Iowa

2004).     In determining whether a statement qualifies as an excited

utterance, the trial court should consider:

      (1) the time lapse between the event and the statement, (2)
      the extent to which questioning elicited the statements that
      otherwise would not have been volunteered, (3) the age and
      condition of the declarant, (4) the characteristics of the event
      being described, and (5) the subject matter of the statement.

State v. Atwood, 602 N.W.2d 775, 782 (Iowa 1999).

      The circumstances surrounding Michael’s statements support the

district court’s finding the statements are excited utterances. The time

lapse between when Michael was rescued from the basement to when she

made the statements to hospital staff was not long.          In the interim,

Michael was being treated for her burns and was still suffering from the
                                     6

“startling event.”   Although Michael’s statement that Sessions Harper

raped her, tied her, and set her house on fire was in response to a

question, the fact that a statement was prompted by a question does not

automatically disqualify it as an excited utterance. For example, in State

v. Stafford, 237 Iowa 780, 23 N.W.2d 832 (1946), a woman was badly

beaten by her husband in the evening. She escaped and wandered in the

darkness all night until she arrived at her sister’s house the next

morning. Stafford, 237 Iowa at 784, 23 N.W.2d at 835. Not recognizing

her, the sister asked the badly-beaten woman what had happened. Id.

The woman identified herself and said that her husband had almost

beaten her to death.     Id.   Determining the statement was an excited

utterance, the court explained, “[t]o declare what had taken place, how

she came to be injured and where, while lacking the element of

contemporaneous connection, yet will stand the test of spontaneity, and

a natural expression of what had happened to her.”         Id. at 787, 23

N.W.2d at 836; see also Atwood, 602 N.W.2d at 782–83 (statement in

response to the question “what happened?” determined to be an excited

utterance).

      Further, Michael did make other statements spontaneously that

implicated Harper.     One of the hospital workers heard Michael say,

“Please don’t kill me.     Harper did it, Harper did it.”      Under the

circumstances, Michael’s statements describing what happened and

identifying her perpetrator were not reflective or deliberative, but rather

made under the stress of her situation.      Tejeda, 677 N.W.2d at 753.

Michael’s condition (suffering from severe burns) and the brutality of the

event described point in favor of the statement being an excited

utterance.    When she uttered the statements concerning her present
                                    7

condition, her skin was still smoldering and the pain of the event was

still continuing.

      In addition, Michael’s statements are admissible under the dying

declaration exception. Iowa R. Evid. 5.804(b)(2). A dying declaration is

“[a] statement made by a declarant while believing that the declarant’s

death was imminent, concerning the cause or circumstances of what the

declarant believed to be the declarant’s impending death.” Id. In order

for a statement to be admissible under this exception, it must be clear

from the circumstances that the declarant’s “sense of impending death

was so certain that he was without hope or expectation of recovery.”

Bratton, 408 N.W.2d at 45.    Dying declarations are only admissible to

show the cause and circumstances behind the declarant’s death. Id.

      In our case, Michael was in excruciating pain and knew that death

was near. In the ambulance, she told the paramedic she wanted to die.

One hospital staff member heard Michael say “I think I’m going to die.”

Michael’s burns were so severe and extensive that one of the physicians

thought she was dead when she arrived in the emergency room.

Considering all of the circumstances, Michael’s statements that Sessions

Harper raped her, tied her, and set her house on fire were made with

knowledge of impending death.      Her statements are thus admissible

under the dying declaration exception as well.

      As the district court appropriately determined Michael’s statements

were admissible under either the excited utterance exception or the dying

declaration exception, we need not determine whether her statements are

admissible under Iowa Rule of Evidence 5.803(4), statements made for

the purpose of medical diagnosis or treatment.

      B.   Confrontation Clause. The Sixth Amendment of the United

States Constitution provides “[i]n all criminal prosecutions, the accused
                                     8

shall enjoy the right . . . to be confronted with the witnesses against

him.” U.S. Const. amend. VI. In Crawford v. Washington, 541 U.S. 36,

124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the United States Supreme

Court determined testimonial statements from unavailable witnesses are

not admissible unless the defendant had a prior opportunity for cross-

examination. Crawford, 541 U.S. at 68, 124 S. Ct. at 1374, 158 L. Ed.

2d at 203. Nontestimonial statements, although still subject to hearsay

rules, are exempt from the Confrontation Clause analysis. Id. Although

the Crawford court declined “to spell out a comprehensive definition of

‘testimonial,’ ” it did state the term “applies at a minimum to prior

testimony at a preliminary hearing, before a grand jury, or at a former

trial; and to police interrogations.” Id. The Court further provided three

formulations to assist courts in determining whether a statement was

testimonial:

      [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; [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.

Id. at 51–52, 124 S. Ct. at 1364, 158 L. Ed. 2d at 193 (citations omitted).

      In Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed.

2d 224 (2006), the United States Supreme Court expanded on the

differences between testimonial and nontestimonial statements.          Davis

concerned statements made by the victim to a 911 operator identifying

her assailant. Davis, 547 U.S. at 817, 126 S. Ct. at 2271, 165 L. Ed. 2d

at 234.    Distinguishing testimonial and nontestimonal statements to
                                      9

police officers, the Court determined the victim’s statements were

nontestimonial since she was neither acting as a witness nor testifying,

but rather describing events that were actually happening as she was

facing an ongoing emergency. Id. at 827, 126 S. Ct. at 2276, 165 L. Ed.

2d at 240. As the Court summarized:

      Statements 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
      the primary purpose of the interrogation is to establish or
      prove past events potentially relevant to later criminal
      prosecution.

Id. at 822, 126 S. Ct. at 2273–74, 165 L. Ed. 2d at 237. Recently, in

Giles v. California, ___ U.S. ___, 128 S. Ct. 2678, 171 L. Ed. 2d 488

(2008), the Court suggested “[s]tatements to friends and neighbors about

abuse and intimidation, and statements to physicians in the course of

receiving treatment” are nontestimonial and would only be excluded, if at

all, by the rules of hearsay. Giles, ___ U.S. at ___, 128 S. Ct. at 2692–93,

171 L. Ed. 2d at 505.

      If a statement is testimonial, it may nonetheless be admissible if it

falls under one of two exceptions, dying declaration or forfeiture by

wrongdoing.    Id. at ___, 128 S. Ct. at 2682, 171 L. Ed. 2d at 495.

Although the United States Supreme Court has not elaborated on the

dying declaration exception, it has recently defined the forfeiture-by-

wrongdoing exception. Id. Unconfronted testimony can only be admitted

under the forfeiture-by-wrongdoing exception if “the defendant intended

to prevent a witness from testifying.” Id. at ___, 128 S. Ct. at 2684, 171

L. Ed. 2d at 497. A mere showing that the defendant caused the person

to be absent is not sufficient. Id.
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      Without determining whether Michael’s statements to hospital

personnel were testimonial or not, the district court concluded the

statements      were   admissible       under      the     forfeiture-by-wrongdoing

exception to the Confrontation Clause. In its determination, the court

did not have the benefit of the Giles decision. In our review, we need not

address whether the statements are admissible under the Giles definition

of forfeiture by wrongdoing.         Michael’s statements are nontestimonial,

and, therefore, the Confrontation Clause does not exclude them.

      Michael’s statements to the hospital staff that Sessions Harper

raped her, tied her, and set her house on fire are nontestimonial. Her

statements      were   made     neither      to   law    enforcement    nor    “under

circumstances which would lead an objective witness reasonably to

believe that the statement[s] would be available for use at a later trial.”

Crawford, 541 U.S. at 52, 124 S. Ct. at 1364, 158 L. Ed. 2d at 193. We

recently determined that a victim’s statements to a treating nurse were

nontestimonial. State v. Schaer, 757 N.W.2d 630 (Iowa 2008). In Schaer,

an emergency room nurse asked a badly-beaten woman what had

happened, and the woman responded that she had been beaten by her

ex-boyfriend.     Id. at 632.       As “ ‘the victim’s statement lacked those

attributes of testimony by a witness that are the concern of the

confrontation     clause,’ ”   we    determined         that   the   statement   was

nontestimonial in character. Id. at 636 (quoting People v. Cage, 155 P.3d

205, 208 (Cal. 2007)).

      Further, other states have overwhelmingly held that statements to

physicians,     nurses,   and       other    medical      personnel    under     most

circumstances are nontestimonial.            See State v. Slater, 939 A.2d 1105

(Conn. 2008) (victim’s statement to ER doctor about being raped was

admissible); Cage, 155 P.3d at 208 (statement responding to doctor’s
                                        11

question about how wound happened was admissible); People v. Vigil,

127 P.3d 916 (Colo. 2006) (child’s statement about an assault to the

examining physician was not testimonial); State v. Scacchetti, 711

N.W.2d 508 (Minn. 2006) (statement made by child to nurse practitioner

was nontestimonial); State v. Vaught, 682 N.W.2d 284 (Neb. 2004)

(victim’s     statement   identifying   perpetrator   made   to   doctor   was

nontestiminal since made for the purpose of medical diagnosis or

treatment).

         These cases make it clear that statements to medical personnel are

nontestimonial in many circumstances not only because the statements

bear little resemblance to the types of testimonial statements identified in

Crawford, but also because the statements assisted the physicians in the

diagnosis and treatment of the patient. For example, in Cage, a teenage

boy was brought to the hospital with a large gash on his face. Cage, 155

P.3d at 208. According to the treating surgeon’s usual practice, he asked

the boy what had happened. Id. The boy responded that he had been

held down by his grandmother while his mother cut him with a piece of

glass.      Id.   Determining that the statement was nontestimonial, the

Supreme Court of California explained:

                The primary purpose of the physician’s general
         question, objectively considered, was not to obtain proof of a
         past criminal act, or to identify the perpetrator, for possible
         use in court, but to deal with a contemporaneous medical
         situation that required immediate information about what
         had caused the victim’s wound.

Id. at 792, 155 P.3d at 207.

         Comparatively, in Bentley, the circumstances surrounding a

statement made to a medical professional indicated the statements were

testimonial. We determined statements made to a counselor during an

interview arranged by the police, observed by the police, and coached by
                                     12

the police were testimonial since “the interview . . . was essentially a

substitute for police interrogation at the station house.”     Bentley, 739

N.W. 2d at 299.

        In our case, a doctor asked Michael, who was badly burned, what

had happened to her. He testified that such a question is a standard

part of his evaluation, analysis, and treatment. The doctor said Michael

told him Sessions Harper had raped her, tied her, and set her house on

fire.   Her statements were not “[a] solemn declaration or affirmation

made for the purpose of establishing or proving some fact.” Crawford,

541 U.S. at 51, 124 S. Ct. at 1364, 158 L. Ed. 2d at 192. Nor were they

the “functional equivalent” of testimony. Id. The primary purpose of the

statements was to assist the physicians in treating her.          Therefore,

Michael’s statements were nontestimonial, and their admission did not

violate defendant’s right to confront witnesses against him.

        C.   Ineffective assistance of counsel.     Harper asserts he was

denied effective representation of counsel for counsel’s failure to object to

witnesses’ identification of his vehicle.     To succeed on a claim for

ineffective assistance of counsel, the defendant must demonstrate

“(1) counsel failed to perform an essential duty, and (2) prejudice

resulted.”    State v. Lane, 743 N.W.2d 178, 183 (Iowa 2007).        Harper

claims his attorney should have filed a motion to suppress the

identification of his vehicle because the identification procedure was

unnecessarily suggestive and violated his right to due process. Several

neighbors saw a red car with a colored lei hanging from the rearview

mirror outside Michael’s house shortly before the fire was reported. The

police showed these witnesses photographs of the defendant’s car, which

they then identified as the car parked outside of Michael’s house. Harper
                                      13

asserts the police should have presented a photo array and not just

pictures of the car in question.

      The pretrial identification of a car does not implicate the

defendant’s due process rights.      State v. Bruns, 304 N.W.2d 217, 219

(Iowa 1981) (“We decline to extend cases protecting the accused’s right to

a fair pretrial identification of his person to the pretrial identification of

items of physical evidence.”).       Therefore, Harper’s counsel was not

ineffective for failing to object to the identification procedures of the car.

      IV. Conclusion.

      Michael’s statements to hospital staff that Sessions Harper raped

her, tied her, and set her house on fire are admissible under two

exceptions to the hearsay rule, excited utterance and dying declaration.

Iowa Rs. Evid. 5.803(2), 5.804(b)(2).      Because these statements were

nontestimonial, the admission of Michael’s statements did not violate

defendant’s right to confront witnesses against him.

      AFFIRMED.
