 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

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       Grosse, J. — Under ER 803(a)(4), a statement made for the purpose of

medical diagnosis or treatment is admissible as an exception to the hearsay rule.

Here, the defendant's statements made to a nurse, physician, and social worker

were all made for the purpose of medical diagnosis and were therefore properly

admitted.

                                     FACTS

       Investigating a possible hit and run accident, police arrived at the home of

Brandon Roberts' parents, Steven and Kristie Hanson. Steven had telephoned

the police that he thought his son was involved in an accident. When the police

arrived, Roberts fled.   While the officers were searching for Roberts, Kristie

showed police red marks and bruising on the neck of Melissa Cole, Roberts'

girlfriend. The police spoke with Cole and then arrested Roberts for felony

assault.

       Cole was treated by paramedics at the scene. Kristie testified that she

encouraged Cole to go to the hospital because both the police and paramedics

said she should go. At the hospital Cole was evaluated by nurse Kerry Groves.
In response to Groves' questions, Cole stated that she had been choked by her
No. 67414-5-1/2


boyfriend. She complained of pain in the right side of her neck and in her cheek.

Cole was then seen by Dr. Neil Donner, who also testified that Cole stated she

had been choked and struck in the face by her boyfriend. Cole was next seen by

a social worker who also testified that Cole stated she was choked by her

boyfriend after they had an argument.

       Roberts did not testify.     Roberts' telephone calls made from jail were

admitted.   One of those calls was to Cole after he was charged with second

degree assault.    On the recording, Roberts asks, "[Wjhat's going on?"     Cole

responded, "[Y]ou choked me, you choked me really hard." Roberts then stated,

"[D]on't say that on the phone." Cole did not testify at trial.

       The jury found Roberts guilty of second degree assault.         The court

sentenced him to a standard range sentence of six months confinement.

       Roberts appeals.     He contends that the court erred in admitting Cole's

prior statements to an emergency room nurse, a physician, and a social worker

on the grounds that the statements were made for the primary purpose of

medical diagnosis or treatment. Roberts contends Cole's statements were not

for medical diagnosis because they were made seven or more hours after the

incident and treatment by paramedics at the scene, and only after Cole had

signed a release of medical records form given to her by the police.

                                      ANALYSIS

       Under the Sixth Amendment, a defendant is guaranteed the right to

confront witnesses against him.1 Admission of testimonial hearsay violates a


1 U.S. Const, amend. VI.
No. 67414-5-1/3


defendant's Sixth Amendment right of confrontation unless the witness is

unavailable and there was a prior opportunity to cross-examine with regard to the

statement.2 It is essential to determine whether the statement is testimonial or

nontestimonial to determine whether it is subject to the limitations of the

confrontation clause.   The United States Supreme Court did not provide an

authoritative definition of "testimonial" in Crawford v. Washington;3 however, in

Davis v. Washington, the Supreme Court did distinguish hearsay elicited in the

context of a police interrogation from that arising in other settings.4 The Davis
Court held that a domestic abuse victim's statement identifying her assailant to a

911 operator in response to that operator's questions was not testimonial, where

the assailant was allegedly in the victim's home in violation of a no-contact order.

Davis characterized the statement as nontestimonial because the questioning

was done to enable police response to an ongoing emergency. The court held

that when the police are responsible for procuring a statement, confrontation

clause analysis requires the examination of the "primary purpose" of the
interrogation.   Under this analysis, a statement will be considered to be
"testimonial" if the police questioned the declarant in order to obtain evidence for

the prosecution, as opposed to the need to meet an ongoing emergency.

       In State v. O'Cain, we noted that the United States Supreme Court has

recently portrayed statements to medical personnel for purposes of diagnosis or



2 Crawford v. Washington. 541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 L. Ed. 2d
177(2004).
3 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
4 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).
No. 67414-5-1/4


treatment as nontestimonial.5 Under ER 803(a)(4), a statement made for the
purpose of medical diagnosis or treatment is admissible as an exception to the

hearsay rule.   Roberts contends that statements Cole made to a nurse, an

emergency physician, and a social worker were inadmissible hearsay statements

because there was no foundation establishing that the statements were

necessary for medical diagnosis or treatment, but rather done in furtherance of a

police prosecution.

      Washington courts recognize that in cases of child abuse and domestic

violence, attributing fault to a particular abuser is relevant to medical diagnosis

and treatment.6 In Sims, the court held that an assault victim's statements to a

social worker that the defendant was the person who assaulted her were

reasonably pertinent to her treatment, where the social worker testified that the

medical center had a policy of referring domestic violence victims to the social

work department and the social worker discussed a treatment plan with her that

included how to avoid threatening situations.7




5169 Wn. App. 228, 279 P.3d 926 (2012); see Michigan v. Bryant. _U.S. _ 131
S. Ct. 1143, 1157 n.9, 179 L. Ed. 2d 93 (2011) (listing "Statements for Purposes
of Medical Diagnosis or Treatment" under federal rule of Evidence 803(4) as an
example of statements that are, "by their nature, made for a purpose other than
use in a prosecution") and Melendez-Diaz v. Massachusetts. 557 U.S. 305, 129
S. Ct. 2527, 2533 n.2, 174 L. Ed. 2d 314 (2009) (discussing cited cases: "Others
are simply irrelevant, since they involved medical reports created for treatment
purposes, which would not be testimonial under our decision today.).
* See State v. Sims. 77 Wn. App. 236, 239-40, 890 P.2d 521 (1995); State v.
Butler. 53 Wn. App. 214, 766 P.2d 505 (1989).
777 Wn. App. 236, 240, 890 P.2d 521 (1995).
No. 67414-5-1/5


      Washington courts have also held that statements made to medical

personnel by victims of domestic violence are not testimonial.8        In State v.

Sandoval, the court held that the identification of the perpetrator in domestic

violence cases is admissible since that person's identity may affect the treatment

for the victim-witness.9 In Sandoval, the court held that statements to a medical

doctor were not testimonial if (1) they were made for purposes of diagnosis and

treatment, (2) there is no indication that the witness expected the statements to

be used at a trial, and (3) the medical caregiver is not employed by or working

with the prosecution.10 And in State v. Moses, the trial court admitted the
physician's   and   the   social   worker's   testimony   regarding   the   victim's

declarations.11 The physician testified that the medical examination took place
within hours of the assault and the physician asked questions to provide

treatment.12 In determining whether statements made to health care providers

are testimonial, the focus of the inquiry is on the purpose of the declarant's

encounter with the health care provider.13 In Moses, where the doctor had no
role in investigating the assault and was not working on behalf of or in

conjunction with the police or other governmental officials to develop testimony

for the prosecution, the circumstances indicated that the victim's statements were

made for the purpose of obtaining medical treatment for the victim. Here, Cole,

as the declarant, was seeking medical treatment. Roberts' mother testified that


8State v. Moses. 129 Wn. App. 718, 728-30, 119 P.3d 906 (2005).
9 137 Wn. App. 532, 537, 154 P.3d 271 (2007).
10 Sandoval. 137 Wn. App. at 537.
11 129 Wn. App. 718, 730-32, 119 P.3d 906 (2005).
12 Moses. 129 Wn. App. at 730.
13 Moses, 129 Wn. App. at 730.
No. 67414-5-1/6


she encouraged Cole to seek additional medical treatment, as did the police and

the paramedics who treated Cole at the scene.

       The nurse, Kerry Groves, testified about statements Cole made to her

upon her arrival at the emergency room. Groves further testified that she worked

in the emergency room triaging patients and that her job was to obtain a full

history from a patient about what occurred. She also explained that she uses

this information to assess patients and work with doctors and social workers to

come up with a treatment plan for the patient. Groves then testified about her

specific interaction with Cole and stated that she observed visible injuries to

Cole's neck and face and that Cole said she received the injuries when her

boyfriend choked her with his hands. Clearly, the statements to the nurse were

made for the purpose of medical diagnosis and, as in Sims, would allow hospital

providers to assess the types of treatment plans or resources that would be

appropriate for the patient. The nurse's statements were properly admitted.

       Cole's statements to the treating physician, Dr. Neil Donner, likewise fall

within the parameters of the medical diagnosis hearsay exception. Dr. Donner

testified that he asked Cole what had happened and she responded that she had

been assaulted, choked by her boyfriend with his hands.                  Dr. Donner

remembered asking if she was put into a choke hold or was strangled with

hands. He also testified that Cole exhibited external signs of trauma on the front

of her neck, although that in itself was insufficient to substantiate that it occurred

through strangulation. Cole also complained of pain on the left side of her face

where she was struck by her boyfriend. Cole was referred to a social worker for
No. 67414-5-1/7


a consultation. Dr. Donner's job was to address any medical concerns and the

referral to the social worker was to address all the other facets, including the

emotional aspects of the alleged assault and the patient's future safety. Thus,

the doctor's testimony was clearly admissible.

      Finally, the social worker, Nathan Nelson, testified that he worked with the

doctors and nurses on cases involving social issues such as domestic violence.

Nelson testified that medical personnel referred patients to him for safety and any

follow-up care that might be needed.       Cole told Nelson that she had been

assaulted by her boyfriend. In response to what Nelson's ultimate goal was, he

responded:

      Basically, I want to - I'm getting a report from her so if the police
      need that report for later purposes, and also to contact police if they
      haven't been contacted.

But Nelson also testified that he was concerned about Cole's future safety and

whether she had a safe place to be. As in Sims, the statements here were made

to medical personnel who testified that the triage protocol included obtaining

information that would allow hospital providers to assess what types of treatment

plans or resources would be appropriate for the patient. The statements made to

Nelson were for Cole's medical diagnosis and treatment and were properly

admitted.14

       Roberts also argues that the medical release form signed by Cole

changed the purpose of her statements from seeking medical treatment to aiding


14 Even if we were to find Nelson's testimony suspect because of his reference to
compiling a possible report for the police, any error in its admission was
harmless. See State v. Nist. 77 Wn.2d 227, 235, 461 P.3d 322 (1969) (Evidence
that is merely cumulative of convincing untainted evidence is harmless.).
No. 67414-5-1/8


the prosecution. Other than this form, which is not in the record, there is nothing

to indicate that Cole went to the hospital to offer evidence for the purpose of

prosecuting Roberts. The nurse, doctor, and social worker all testified that their

concern was the treatment and safety of Cole. The doctor's testimony that he

inquired into the type of strangulation that occurred was clearly for medical

diagnosis. There is no evidence that Cole thought her statements would be used

to initiate a criminal prosecution. The signing of the medical release form is not

sufficient to overcome this, especially here, where the form was not admitted as

an exhibit at trial and, when viewed by the trial court during argument objecting to

the testimony, was characterized by the court as a typical form used in all cases

involving crime victims.

      Affirmed.




WE CONCUR:




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