                        UNITED STATES, Appellee

                                    v.

                  Ted C. SQUIRE, Sergeant First Class
                          U.S. Army, Appellant

                              No. 13-0061

                        Crim. App. No. 20091106

       United States Court of Appeals for the Armed Forces

                         Argued April 3, 2013

                         Decided June 13, 2013

ERDMANN, J., delivered the opinion of the court, in which BAKER,
C.J., STUCKY and RYAN, JJ., and COX, S.J., joined.

                                 Counsel


For Appellant: William E. Cassara, Esq. (argued); Captain John
L. Schriver (on brief).

For Appellee: Captain Edward J. Whitford (argued); Lieutenant
Colonel Amber J. Roach and Major Catherine L. Brantley (on
brief); Major Robert A. Rodrigues and Captain Bradley M.
Endicott.

Military Judge:    Donna M. Wright


       This opinion is subject to revision before final publication.
United States v. Squire, No. 13-0061/AR

     Judge ERDMANN delivered the opinion of the court.

     Sergeant First Class Ted Squire was convicted at a general

court-martial with members, contrary to his pleas, of engaging

in a sexual act with a child who had not attained the age of

twelve years, in violation of Article 120, Uniform Code of

Military Justice, 10 U.S.C. § 920 (2006). 1   He was sentenced to

twenty years confinement and reduction to the grade of E-1.    The

convening authority reduced the sentence of confinement to 238

months and otherwise approved the adjudged sentence.    The United

States Army Court of Criminal Appeals (CCA) affirmed the

findings and sentence.   United States v. Squire, No. ARMY

20091106, 2012 CCA LEXIS 306, 2012 WL 3602088 (A. Ct. Crim. App.

Aug. 17, 2012).

     The Confrontation Clause bars admission of the testimonial

statements of a witness who did not appear at trial unless the

witness was unavailable to testify and the defendant had a prior

opportunity for cross-examination.   Crawford v. Washington, 541

U.S. 36, 53–54 (2004).   We granted review of this case to

determine whether statements made to two medical doctors by an

eight-year-old victim of a sexual assault were testimonial


1
  Squire was initially charged with three violations of Article
120: Specification 1 -- engaging in a sexual act with a child
who had not attained the age of twelve; Specifications 2 and 3
-- engaging in lewd acts with a child who had not attained the
age of sixteen. Specifications 2 and 3 were withdrawn by the
Government prior to trial.



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United States v. Squire, No. 13-0061/AR

hearsay. 2    We hold that the statements were not testimonial and

that their admission into evidence was proper.        We therefore

affirm the Army Court of Criminal Appeals. 3

                               Background

       In the fall of 2008, Squire was engaged to Sergeant First

Class (SFC) W and frequently spent the night at her home.        SFC

W’s adult son and her eight-year-old daughter, SL, also lived

with her.      Neither child had a biological relationship to

Squire.      On the morning of September 16, 2008, SFC W left her

home at 6:00 a.m. to attend physical training (PT).        Squire had

spent the previous night at SFC W’s home and when she left for

PT he was asleep on the living room couch wearing a football

jersey and shorts.      SL was asleep in her upstairs bedroom.

       Usually when SFC W went to morning PT she would return home

between 7:45 a.m. and 8:00 a.m., but that morning she was

released early and returned home at approximately 6:30 a.m.

Upon her return, SFC W encountered SL coming out of the master

bedroom wearing only a long t-shirt.        SL had been wearing a t-


2
    We granted review of the following issue:

       Whether Appellant was denied his Sixth Amendment right
       to confront his accuser when the military judge
       permitted testimonial hearsay in the form of SL’s
       statement to a physician.

United States v. Squire, 72 M.J. 29 (C.A.A.F. 2013) (order
granting review)
3
  Squire’s motion to attach documents and his motion to conduct
appellate discovery are hereby denied.

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United States v. Squire, No. 13-0061/AR

shirt, panties, and sleep pants when she went to bed the night

before.    SFC W found Squire in the bed in the master bedroom,

but he was not wearing the shorts he had on when he had been

sleeping on the couch.    SFC W later found Squire’s shorts in

SL’s bedroom, as well as SL’s pajama pants and underwear lying

on the bed.    SFC W questioned SL about what had happened and SL

indicated that Squire had touched her vagina.    After comforting

SL, SFC W sent her to school and confronted Squire, who denied

any inappropriate behavior.

       Later that day, SFC W took SL to Tripler Family Practice

and informed them that there was a possibility that her daughter

had been molested.    Tripler Family Practice referred SL to the

emergency room at Tripler Army Medical Center.    Dr. Mary

Montgomery was the emergency room physician at Tripler that day.

Following her normal routine, Dr. Montgomery introduced herself

and took a patient history, which included asking SL why she was

there.    SL told Dr. Montgomery that she had been hurt that day

when “Chris” 4 put his penis in her privates.   Dr. Montgomery then

performed a head-to-toe physical examination of SL, including an

external genital examination.    The examination did not disclose

any trauma to the external genitalia.

       As there was “no evidence of bleeding and [SL] seemed

hemodynamically stable,” Dr. Montgomery determined that “at that


4
    SGT W and her children referred to Squire as “Chris.”

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United States v. Squire, No. 13-0061/AR

point it would be best for a pediatric patient to have an

internal genital exam done by someone who specializes in doing

those types of exam[s] for children.”    Dr. Montgomery did not

possess that particular specialty and as an emergency room

physician, her primary purpose was to ensure SL was medically

stable and to take a medical history and perform a physical

exam, not to conduct a sex assault examination.    Dr. Montgomery

referred SL to Kapiolani Medical Center for an internal genital

exam.    Although Dr. Montgomery was aware throughout the course

of her examination “that there could be potential prosecution

down the road,” she testified that she acted “[m]ainly to do a

history and physical exam” and to “make sure the patient [was]

okay.”

     When SFC W and SL arrived at the Kapiolani Medical Center

emergency room, SL was seen by the on-call physician at the

Kapiolani Child Protection Center.    That night the on-call

physician was Dr. Philip Hyden, who was the medical director of

both the Kapiolani Child Protection Center and the Sex Abuse

Treatment Center, as well as an assistant professor of

pediatrics and an attending pediatrician at the Kapiolani

Medical Center.    Like Dr. Montgomery, Dr. Hyden began by

introducing himself and by taking a patient history.    During the

history, SL told Dr. Hyden that Squire “put his wee wee inside

me and it hurt.”    Dr. Hyden understood that the information he



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United States v. Squire, No. 13-0061/AR

gathered was “very likely [to be] provided to law enforcement

personnel” and that he was a “mandated reporter” under Hawaii

law. 5    However, he also testified that he had been trained to

begin every medical examination with a patient history and

therefore it was his routine to take a medical history for any

patient he saw.

         After he took the history, Dr. Hyden conducted a physical

exam and took evidence for a rape kit which included SL’s

underwear and a vaginal swab.      According to Dr. Hyden, the

swabbing was done to obtain cultures for medical diagnostic

purposes, but he was also aware that the cultures could be used

for DNA identification purposes.        Upon completion of the

physical examination, Dr. Hyden prescribed antibiotics as a

precaution against sexually transmitted diseases and also

arranged for SL to attend counseling.        There was no police

presence or involvement in either examination, though CID agents

did meet SFC W at the Kapiolani Medical Center after the

examination.

         SL did not testify at trial and Squire challenged the

admission of SL’s statements to both doctors on Confrontation

Clause grounds.      The military judge held an Article 39(a), UCMJ,

10 U.S.C. § 839(a) (2006), hearing and heard testimony from SFC


5
  Haw. Rev. Stat. § 350-1.1 generally requires licensed medical
professionals to report suspected child abuse or neglect to the
Hawaii Department of Human Services or the police.

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United States v. Squire, No. 13-0061/AR

W and both doctors.    The military judge made an initial ruling

from the bench admitting the statements and later supplemented

that ruling with written findings of fact and conclusions of

law.    At trial, Squire was convicted on the sole charge of

engaging in a sexual act with a child.

       Squire subsequently appealed a number of issues to the CCA,

including the Confrontation Clause issue. 6   Squire, 2012 CCA

LEXIS 306, at *2 n.1, 2012 WL 3602088, at *1 n.1.    In addressing

the Confrontation Clause issue, the CCA applied the factors we

set out in United States v. Rankin, 64 M.J. 348 (C.A.A.F. 2007),

and United States v. Gardinier, 65 M.J. 60 (C.A.A.F. 2007), to

determine whether SL’s statements to the doctors were

testimonial.    Squire, 2012 CCA LEXIS 306, at *5-*15, 2012 WL

3602088, at *2-*5.    The CCA concluded that SL’s statements to

Dr. Montgomery and Dr. Hyden were not testimonial and that their

admission did not violate the Confrontation Clause.    Id.

                             Discussion

       Whether a statement is inadmissible testimonial hearsay

under Crawford is a question of law which we review de novo.

Gardinier, 65 M.J. at 65.    The Supreme Court has not articulated

a comprehensive definition of “testimonial” statements, id., but

the analysis is fact specific, meaning that it is “contextual,

6
  At the CCA, Squire assigned the following issues: the
Confrontation Clause issue; a challenge to the chain of custody
of the rape kit; an ineffective assistance of counsel claim; and
an allegation of improper release of detailed defense counsel.

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United States v. Squire, No. 13-0061/AR

rather than subject to mathematical application of bright line

thresholds.”   Rankin, 64 M.J. at 352.   While “our goal is an

objective look at the totality of the circumstances surrounding

the statement,” Gardinier, 65 M.J. at 65, we have developed a

set of factors to assist us in determining whether a given

statement is testimonial.    Those factors include whether:   (1)

the statement was elicited by or made in response to law

enforcement or prosecutorial inquiry; (2) the statement involved

more than a routine and objective cataloging of unambiguous

factual matters; and (3) the primary purpose for making, or

eliciting, the statement was the production of evidence with an

eye toward trial.   Id.; Rankin, 64 M.J. at 352.   As we view the

Confrontation Clause issue involving Dr. Hyden as a closer

question than that involving Dr. Montgomery, we will first

address Dr. Hyden’s situation.

  1.   Dr. Hyden

  Involvement of Law Enforcement

  “[T]he ‘[i]nvolvement of government officers in the production

of testimony with an eye toward trial presents unique potential

for prosecutorial abuse.’”    Rankin, 64 M.J. at 351 (second set

of brackets in original) (quoting Crawford, 541 U.S. at 56 n.7).

We have therefore determined that one relevant consideration in

examining Confrontation Clause issues is whether “the statement




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United States v. Squire, No. 13-0061/AR

at issue [was] elicited by or made in response to law

enforcement or prosecutorial inquiry.”    Id. at 352.

     Squire argues that law enforcement was involved in Dr.

Hyden’s examination because:   (1) Dr. Hyden was a mandatory

reporter of cases involving child sexual assault victims under

Hawaii state law; (2) during the examination Dr. Hyden completed

a form entitled “medical-legal record and sexual assault

information form” required by the State of Hawaii; and (3) he

had performed over 1,000 sexual assault examinations.        Squire

essentially argues that, while there was no direct law

enforcement involvement in this case prior to or during the

examinations, Dr. Hyden’s medical specialty and experience, his

status as a mandatory reporter, and his completion of state

mandated forms while conducting the examination, resulted in a

de facto law enforcement involvement.

     We disagree.   The facts of this case differ sharply from

the facts of Gardinier, where we found the statement testimonial

in part because of police involvement.      65 M.J. at 66.    There,

the examination by a sexual assault nurse examiner (SANE)

occurred several days after the initial medical examination and

was arranged and paid for by the sheriff’s office.      Id.    We

concluded that the victim’s statements were clearly the result

of an inquiry initiated by law enforcement and we held that the

victim’s statement was testimonial.   Id.     Here, the connection



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United States v. Squire, No. 13-0061/AR

to law enforcement is the general requirement that Dr. Hyden, as

a mandatory reporter under Hawaii law, must report and document

possible sexual abuse of children after conducting a forensic

examination.     We do not believe that this general requirement,

which broadly covers health care professionals, employees of

public and private schools, child care providers, and providers

of recreational and sports activities, Haw. Rev. Stat. § 350-

1.1(a)(1-7), is alone sufficient to establish that Dr. Hyden was

acting in a law enforcement capacity.     Without more, we decline

to “deputize [the] litany of [mandatory reporting] professionals

. . . into law enforcement.”     State v. Spencer, 169 P.3d 384,

389 (Mont. 2007); see also United States v. DeLeon, 678 F.3d

317, 324 (4th Cir. 2012); United States v. Peneaux, 432 F.3d

882, 895 (8th Cir. 2005); Seely v. State, 282 S.W.3d 778, 788

(Ark. 2008). 7

     Routine/Objective Cataloging

     The fact that statements are a routine, objective

cataloging of unambiguous factual matters is a relevant


7
  This is not to say that a medical professional can never act
with a law enforcement purpose, but to prevail in such cases
there must be a showing of something more than the fact that the
doctor is an expert in the field with a statutory obligation to
report suspected child abuse. See People v. Stechly, 870 N.E.
2d 333, 366 (Ill. 2007) (“We are not holding that every mandated
reporter acts as an agent of law enforcement in every interview,
but merely that [the nurse’s and social worker’s] status as
mandated reporters supports our conclusion in this case based on
the fact that their actions appear to have had no other purpose
than to obtain information to pass on to the authorities.”).

                                  10
United States v. Squire, No. 13-0061/AR

consideration in determining whether statements are testimonial.

Rankin, 64 M.J. at 352.   The CCA noted that although SL’s

statement may have involved “more than a routine and objective

cataloging of unambiguous factual matters” it would focus on the

first and third factors as the second factor “‘ha[d] little

import in the factual scenario presently before us.’” Squire,

2012 CCA LEXIS 306, at *7 n.3   2012 WL 3602088, at *3 n.3

(alteration in original) (quoting United States v. Russell, 66

M.J. at 597, 604 n.3. (A. Ct. Crim. App. 2008)).

     We did not intend for the Rankin/Gardinier factors to

create a rigid set of criteria for determining whether a

statement was testimonial, but rather provided them as examples

of what an appellate court could consider in conducting an

“objective look at the totality of the circumstances surrounding

the statement[s].”   Gardinier, 65 M.J. at 65.   Indeed, if the

phrase “unambiguous factual matters” were narrowly construed to

mean uncontroverted facts, such as machine-generated data,    see

generally United States v. Blazier, 69 M.J. 218, 224 (C.A.A.F.

2010) (“machine-generated data and printouts . . . not

‘testimonial’”), then the second factor would not be

particularly helpful in cases where a statement of medical

history was made to a medical provider.   Regardless of how this

factor is characterized, however, an inquiry into the general

nature of the statement at issue can be helpful to our analysis.



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United States v. Squire, No. 13-0061/AR

Here, the record does not indicate that Dr. Hyden either

prompted or led SL in his questioning.    He asked her what had

happened and she responded with a factual response of the

incident. 8   We consider those facts relevant as a part of our

broader examination of the totality of the circumstances in this

case.

     Primary Purpose

     We have also recognized, with the third Rankin/Gardinier

factor, that the statement’s “primary purpose” may have a

bearing on whether or not it is testimonial within the meaning

of Crawford.    Rankin, 64 M.J. at 352.   Although the Supreme

Court has generally only addressed “ongoing emergencies” as a

factual predicate for finding that the “primary purpose” of the

statement was not law enforcement related, it also has

recognized that “there may be other circumstances, aside from

ongoing emergencies, when a statement is not procured with a

primary purpose of creating an out-of-court substitute for trial

testimony.”    Michigan v. Bryant, 131 S. Ct. 1143, 1155 (2011). 9


8
  Dr. Hyden testified that SL told him that after Squire removed
his pants and lay down next to her and asked her to remove her
underclothes, “he put his wee wee inside me and it hurt. I told
him no and pushed him away.”
9
  The Supreme Court has also expressed support for the idea, in
dicta, that those purposes include statements for the purpose of
medical diagnosis or treatment. Bryant, 131 S. Ct. at 1157 n.9
(evidence admitted under the hearsay exception for statements
for purposes of medical diagnosis or treatment does not
implicate confrontation concerns); Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 312 n.2 (2009) (“[M]edical reports

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United States v. Squire, No. 13-0061/AR

     Squire asks us to look past the medical aspects of Dr.

Hyden’s questions when he took SL’s patient history and urges us

to conclude that the primary purpose of the questioning was to

gather evidence relevant to a later trial.    In contrast, the

Government argues that the primary purpose of the questioning

was to assist in the medical treatment of SL.

     When a medical provider provides treatment to the victim of

a criminal offense, statements solicited by the medical provider

may be primarily for medical treatment purposes, or, at the

other end of the spectrum, they may be primarily for law

enforcement purposes.    Under many circumstances, however, the

examination will have both a medical treatment and a law

enforcement purpose.    As the Supreme Court has noted,

participants with “dual responsibilities may mean that they act

with different motives simultaneously or in quick succession.”

Bryant, 131 S. Ct. at 1161.    Here, however, the facts support

the conclusion that the medical history was taken primarily for

the purpose of providing medical treatment.

     In evaluating the primary purpose, the law “requires a

combined inquiry that accounts for both the declarant and the



created for treatment purposes . . . would not be testimonial
under our decision today.”); Giles v. California, 554 U.S. 353,
376 (2008) (“Statements to friends and neighbors about abuse and
intimidation and statements to physicians in the course of
receiving treatment would be excluded, if at all, only by
hearsay rules.”).



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United States v. Squire, No. 13-0061/AR

interrogator.”   Id. at 1160. 10   SL was referred to Dr. Hyden by

Dr. Montgomery for a specific medical reason -- neither Dr.

Montgomery nor anyone available at the Tripler Army Medical

Hospital had the medical expertise to perform a pediatric

internal genital examination.      Dr. Hyden testified that he was

trained to always take a medical history at the outset of any

medical examination and his purpose in this case was to “take[]

a medical history as a pediatrician which I would do for any

patient I see before I perform a physical exam.”      The history

was ultimately medically significant to his conclusion that

there had been physical penetration of the vagina and that it

was necessary to administer preventative antibiotics to treat

any possible sexually transmitted diseases.      Additionally,

evaluating the exchange from the perspective of the declarant, 11

we are confident that a reasonable victim of SL’s age, under

these circumstances, would not understand the purpose of her


10
   Nevertheless, “[t]he inquiry is still objective because it
focuses on the understanding and purpose of a reasonable victim
in the circumstances of the actual victim.” Bryant, 131 S. Ct.
at 1161-63.
11
   One formulation of “testimonial” statements is “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 (citation and internal quotation marks omitted). In
Gardinier, we noted that this formulation “offer[ed] a useful
baseline to begin analysis of the testimonial quality of
[statements made by a purported child victim to a SANE],” and
applied the considerations set forth in Rankin to determine that
the purported child victim’s statements were testimonial under
the circumstances. 65 M.J. at 65-66.

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United States v. Squire, No. 13-0061/AR

statements as creating “an out-of-court substitute for trial

testimony.”   Bryant, 131 S. Ct. at 1155.

     Squire points to the fact that Dr. Hyden was aware that the

results of his examination were likely to be used in a

subsequent criminal prosecution, but that knowledge alone does

not transform what would otherwise be a statement for the

purpose of medical treatment into a testimonial statement. 12

     Conclusion:   Dr. Hyden

     There was neither direct law enforcement involvement in Dr.

Hyden’s examination, nor was Dr. Hyden acting as a de facto law

enforcement officer.   Although Dr. Hyden was aware of the

possible law enforcement related consequences of his

examination, under the facts established on the record in this

case he acted primarily for a medical purpose while taking SL’s

medical history.   Therefore, under the “totality of the




12
  Before SFC W and SL saw Dr. Hyden at the hospital, a crisis
therapist obtained SFC W’s signature on a form consenting to the
examination, the collection of evidence, and the release of the
results of the examination to law enforcement. While Dr. Hyden
was aware of this form, he testified that his purpose for taking
the patient history was to “ascertain what’s wrong with the
child, what the chief complaint is, what I can do about it.”
The consent/authorization form signed by SFC W is only indirect
evidence of the purpose of the conversation between Dr. Hyden
and SL, and where Appellant fails to establish that Dr. Hyden
was serving either at the behest of law enforcement or as a de
facto law enforcement officer, the form alone does not establish
that the intent of the examination was to create an out-of-court
substitute for in-court testimony rather than to facilitate the
medical treatment of SL.

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United States v. Squire, No. 13-0061/AR

circumstances surrounding the statement,” we conclude that SL’s

statements to Dr. Hyden were not “testimonial.” 13

     2.     Dr. Montgomery

     Under the Rankin/Gardinier analysis, SL’s statements to Dr.

Montgomery were not testimonial.          SFC W brought SL to Tripler

Family Practice on her own volition, without having been advised

by or even seeking to contact law enforcement personnel.          Dr.

Montgomery was an emergency room physician who did not conduct a

forensic examination.        In taking the patient history, Dr.

Montgomery’s questions to SL were narrow in scope, fact

oriented, and limited to addressing SL’s emergency medical

condition and its causes.        Finally, the primary purpose of the

statements was to facilitate medical treatment for a possible

sexual assault.

                                 Conclusion

          SL’s statements to both doctors were not testimonial and

therefore Squire did not have a constitutional right to confront

her prior to the admission of those statements.          The decision of

the United States Army Court of Criminal Appeals is affirmed.


13
  We do not hold today that any statement made to a doctor or
medical professional in the context of a medical examination is
per se for the primary purpose of medical treatment, or that all
such statements are inherently nontestimonial. That holding
would conflict with both our analysis and result in Gardinier.
As we have already emphasized, the analysis of statements in
Confrontation Clause cases is inherently fact specific and every
case must be decided, in context, on its own facts.



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