                         Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                         NEWS RELEASE #013


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 17th day of March, 2015, are as follows:




PER CURIAM:

2014-KD-1526      STATE   OF   LOUISIANA   v.  DAVID   J.   KOEDERITZ    (Parish   of
                  Orleans)(Second Degree Battery and False Imprisonment)

                  Judge Scott J. Crichton, assigned as Justice ad hoc, sitting for
                  Justice Jeffrey P. Victory, for oral argument. He now sits as an
                  elected Associated Justice at the time this opinion is rendered.

                  Accordingly, the decision of the district court is reversed in
                  part and affirmed in part and this case is remanded to the court
                  for further proceedings.
                  REVERSED IN PART; AFFIRMED IN PART; CASE REMANDED.

                  CRICHTON, J., additionally concurring.
03/17/15




                          SUPREME COURT OF LOUISIANA

                                     NO. 2014-KD-1526

                                  STATE OF LOUISIANA

                                            VERSUS

                                  DAVID J. KOEDERITZ

                 ON SUPERVISORY WRITS TO THE CRIMINAL
               DISTRICT COURT FOR THE PARISH OF ORLEANS



PER CURIAM:1

       The rulings of the courts below are reversed in part and this case is

remanded to the trial court for further proceedings consistent with the views

expressed herein.

       In this pending prosecution for second degree battery in violation of La. R.S.

14:34 and false imprisonment, La. R.S. 14:46, defendant filed a motion to exclude

from trial portions of the medical records from Ochsner Hospital in New Orleans,

documenting the victim’s treatment for a broken nose and black eye in the spring

of 2013. According to those records, the victim, defendant’s estranged girlfriend

and mother of his child, appeared in the emergency room at Ochsner on February

23, 2013 and “report[ed] physical altercation with boyfriend.” The state alleges

that her injuries occurred on February 19, 2013, when the victim paid defendant a

visit, and he kept her confined in the following days to allow her injuries to heal.

The victim’s initial report and treatment of her physical injuries led to a follow-up

session in the hospital with Dr. Milton Anderson, a psychiatrist, on February 25,


1
  Judge Scott J. Crichton, assigned as Justice ad hoc, sitting for Justice Jeffrey P. Victory, for
oral argument. He now sits as an elected Associated Justice at the time this opinion is rendered.
2013, in which she again identified defendant as her assailant and informed the

doctor that “this isn’t the first time he hit me.” Those statements prompted a

discussion with the psychiatrist of how she could change the pattern of behavior

that led to the incident. The discussion also prompted a change in the victim’s

medication previously prescribed for depression and mood disorders. At that time,

the victim made clear she did not intend to file a complaint with the police but the

diagnostic impression was “victim of domestic violence” and depression. The

records indicate that on February 27, 2013, hospital personnel urged the victim to

call the police to report the incident during another follow-up visit in which she

reported “that altercation occurred last week near magazine st as the reason for her

ED visit.” At first, the victim resisted the advice and walked out but she returned

with her mother who stated that “this isn’t the first time he’s done this to her.” The

record of this visit indicates that the hospital personnel in fact called the police.

An officer responded and drew the victim aside in an unrecorded conference. It

appears, however, the victim did not make a formal complaint to the police until

three weeks later, after which a warrant issued for defendant’s arrest. Defendant

was apparently not arrested on the warrant until nearly a year later in January 2014.

      Defendant also moved to exclude three letters ostensibly written by the

victim, one before the incident that formed the basis of the instant prosecution, and

two written months afterwards. The state alleges that the victim subsequently

committed suicide in the spring of 2014. Given the unavailability of the victim,

the state intends to introduce the medical records and letters in lieu of her live

testimony at trial.

      The trial court granted the defense motions on grounds that introduction of

the documentary evidence in substitution of the victim’s live testimony would

constitute hearsay in violation of Louisiana’s evidentiary rules and would trench on

defendant’s Sixth Amendment right of confrontation. The court specifically found

                                          2
that the victim’s statements to the medical personnel at Ochsner were not

reasonably related to the treatment and diagnosis of her injuries and were therefore

inadmissible as a matter of the hearsay exception provided by La. C.E. art. 803(4).

For much the same reason, the court characterized the statements as testimonial for

purposes of the Confrontation Clause and therefore inadmissible, given the lack of

prior cross-examination.    The court further ruled that the letters constituted

inadmissible other crimes evidence, even assuming they were properly

authenticated and sufficiently connected defendant to the alleged incidents.

      In a split-panel decision, the Fourth Circuit denied the state’s application for

review. State v. Koederitz, 14-0709 (La. App. 4 Cir. 8/22/14) (Ledet, Jenkins, JJ.)

Dissenting from that order, Judge Lobrano stated her view that the victim’s

statements recorded in the medical records were admissible as a matter of hearsay

exception provided by La. C.E. art. 803(4). Koederitz, 14-0709 at 7 (Lobrano, J.,

dissenting) (“The victim in this case had an ongoing and tumultuous relationship

with the defendant, her former boyfriend and the father of her child. That fact was,

at the least, reasonably pertinent to the victim’s treatment due to past trauma

inflicted on the victim by the defendant. The medical professionals’ treatment of

the victim, including that of her psychiatrist, Dr. Anderson, was predicated upon

this fact. As such, the victim’s statements identifying the defendant as her abuser

to medical personnel were reasonably pertinent to her treatment, and thus are

admissible under La. C.E. art. 803(4).”). For virtually the same reasons, Judge

Lobrano viewed the victim’s statements as non-testimonial for purposes of the

Confrontation Clause despite the lack of a prior opportunity for cross-examination.

Id. at 8-9 (“The records indicate that the victim, at the time the statements were

made, specifically intended not to report defendant’s actions to the police. Thus, I

can only conclude that the statements are non-testimonial . . . because they were

made with no reasonable belief that they would later be used in a trial.”). Finally,

                                          3
with respect to the letters, Judge Lobrano found that the trial court did not abuse its

discretion in excluding the two letters written well after the February 2013

incident, portions of which appeared either clearly testimonial because they

referred to the ongoing criminal prosecution of defendant, or mentioned past

incidents of abuse, but also found that the court erred in excluding a January 2012

letter in its entirety. Id. at 10 (“[A]ssuming [the] letter, which is addressed to the

defendant, is properly authenticated at trial, see La. C.E. art. 901, the portions of

the letter where the victim expresses her then-existing mental, emotional, or

physical condition are admissible and relevant to explain the nature of the victim’s

relationship with the defendant.”).

      This Court granted the state application for review because we agree with

Judge Lobrano that the statements made in the present case by the victim to her

treating physicians identifying the person who struck her repeatedly in the face and

broke her nose, as recorded in the certified records from Ochsner Hospital, are

admissible under the hearsay exception in La. C.E. art. 803(4), and as a matter of

the Confrontation Clause, because they were made for the non-testimonial

purposes of, and were reasonably pertinent to, medical treatment, and diagnosis in

connection with medical treatment, in a case that appeared to be one of domestic

violence and that involved not only treatment of the victim’s physical injuries but

also psychiatric counseling.

      Louisiana subscribes to the general rule that the hearsay exception in La.

C.E. art. 803(4) ordinarily does not encompass statements ascribing fault in the

cause of the injuries treated. See Comment (b) to Exception (4)(b) (“The phrase

‘reasonably pertinent to treatment or diagnosis in connection with treatment’ has

been interpreted to limit the scope of this exception to the kind of statements that

are usually relied upon by physicians in their diagnosis and treatment of patients.

Thus, statements as to the cause of a condition not reasonably pertinent to

                                          4
diagnosis or treatment of it are not within the ambit of this exception.”) (citing

Fed.R.Evid. 803(4), Advisory Committee’s Note (statements as to fault would

ordinarily not qualify) (other citations omitted). See, e.g., State v. Juniors, 03-

2425, p. 44 (La. 6/29/05), 915 So.2d 291, 325 (upholding exclusion of medical

records offered by the defendant containing the statement that the victim had been

shot “by a disgruntled employee” because the statement by an unidentified person

“was not reasonably related to diagnosis and treatment” of the victim suffering

from a gunshot wound to the head, “and, thus, was not admissible as an exception

to the hearsay rule pursuant to LSA-C.E. art. 803(4).”); see also State v. Baldwin,

96-1660 (La. 12/12/97), 705 So.2d 1076, unpub’d appx. at xxii (trial court erred in

admitting statement by victim to hospital personnel that she had been “beat[en] up

by [her] husband” because the hearsay exception in Article 803(4) was “not so

broad as to cover a statement as to the identity of the perpetrator.”)(citing Official

Comment (b)).

      The hearsay exception provided by article 803(4) has, however, received

particular application in cases of child sexual abuse, including statements of fault,

because “‘the legislature has expressed an overriding interest in protecting child

victims of sexual abuse by encouraging the admission of reliable hearsay evidence

for the trial court to weigh.’” State v. Brown, 97-2260, p. 8 (La. App. 4 Cir.

10/6/99), 746 So.2d 643, 648 (quoting Folse v. Folse, 98-1976, p. 19 (La. 6/29/99),

738 So.2d 1040, 1050, and upholding admission of six-year old victim’s statement

to a hospital physician that her father had put his penis in her) (footnote omitted).

We recognize, as Judge Lobrano concluded, that La.C.E. art. 803(4), like its

federal counterpart in Fed. R. Evid. 803(4), may encompass other instances in

which the identity of a perpetrator plays an integral role in medical treatment and

diagnosis in connection with that treatment. See, e.g., United States v. Joe, 8 F.3d

1488, 1494-95 (10th Cir. 1993) (Although “a declarant’s statement relating the

                                          5
identity of the person allegedly responsible for her injuries is not ordinarily

admissible under Rule 803(4) because statements of identity are not normally

thought necessary to promote effective treatment. . . . The identity of the abuser is

reasonably pertinent to treatment in virtually every domestic sexual assault case,

even those not involving children. . . . The physician generally must know who

the abuser was in order to render proper treatment because the physician . . . . may

recommend special therapy or counseling and instruct the victim to remove herself

from the dangerous environment by leaving the home and seeking shelter

elsewhere.”) (citations omitted).

      Given evolving jurisprudence and in accord with other courts, any contrary

expression in Baldwin notwithstanding, we see no principled basis for confining

statements of fault under La.C.E. art. 803(4) solely to cases involving domestic

sexual assault, whether of adults or children, as opposed to other instances of

physical assault and abuse taking place in a context that may be fairly described in

terms of domestic violence. See, e.g., Moore v. City of Leeds, 1 So.3d 145, 150

(Ala. Crim. App. 2008) (rationale for admitting statements of identity by a minor

receiving treatment for sexual abuse “would also apply to victims of domestic

violence.”); State v. Williams, 137 Wash. App. 736, 154 P.3d 322, 328 (2007)

(“Generally, statements of fault are inadmissible, but much, of course, depends on

the context in which such statement are made. In domestic violence and sexual

abuse situations, a declarant’s statement disclosing the identity of a closely-related

perpetrator is admissible under [Evidence Rule] 803(a)(4) because part of

reasonable treatment and therapy is to prevent recurrence and future injury.”)

(internal quotation marks and citations omitted); Oldman v. State, 998 P.2d 957,

961-62 (Wyo. 2000) (“Identity rarely is germane to the promotion of treatment or

diagnosis, but we, as well as other courts, have recognized that such statements can

be relevant to treatment in instances of child abuse. . . . There is no logical reason

                                          6
for not applying this rationale to non-sexual, traumatic abuse within a family or

household, since sexual abuse is simply a particular kind of physical abuse.”)

(citations omitted).

          This jurisprudence reflects the current integrated approach to the treatment

of domestic violence cases in the medical community. See American Medical

Association Policy Statement on Family and Intimate Partner Violence H-515.965

Chicago: AMA (2014) (advocating that physicians: (a) “Routinely inquire about

the family violence histories of their patients as this knowledge is essential for

effective diagnosis and care;” and (e) “Screen patients for psychiatric sequelae of

violence and make appropriate referrals for these conditions upon identifying a

history of family or other interpersonal violence.”) (emphasis added); see also U.S.

Dep’t of Health & Human Serv., Screening for Domestic Violence in Heath Care

Settings (August 2013), Office of the Assistant Secretary for Planning and

Evaluation (“Screening and counseling for domestic violence was first

institutionalized in 1992 when the Joint Commission on the Accreditation of

Hospitals and Health Care Organizations (JCAHO) mandated that emergency

departments develop written protocols for identifying and treating survivors of

domestic violence in order to receive hospital accreditation (Joint Commission,

2009). Since then, many health associations have supported screening across

health care specialties. The American Medical Association (AMA), American

Congress of Obstetrician Gynecologists (ACOG), and the American Nurses

Association (ANA) all recommend routine universal screening.”).2

          The trial court therefore erred in excluding the hospital records documenting

the victim’s initial treatment at Ochsner Hospital on February 23, 2013, during

which she identified her assailant and placed the incident in the context of

domestic violence, and the follow-up visit with Dr. Anderson on February 25,
2
    See http://aspe.hhs.gov/hsp/13/dv/pb-screeningDomestic.cfm.


                                                         7
2013, during which the victim elaborated on her prior statements and received

counseling on ways to change her behavior even as she insisted that she would not

report the incident to the police. These statements are non-hearsay as a matter of

La.C.Cr.P. art. 803(4) and are therefore admissible as substantive evidence because

they were made for purposes of diagnosis and treatment, essential components

under current medical practice in cases of domestic violence, and not as part of a

forensic examination intended for use at trial. Cf. State v. Watley, 301 So.2d 332

(La. 1974)(trial court erred in overruling hearsay objection to testimony of

psychiatrist regarding his examination of victim immediately before trial for

purposes of assessing her mental condition as it related to her capacity to resist

sexual assault and including details of the offense provided by the victim).

      The statements at issue in the present case are also non-testimonial for

purposes of the Sixth Amendment Confrontation Clause because they were not

“procured for the primary purpose of creating an out-of-court substitute for trial

testimony.” Michigan v. Bryant, 562 U.S. ____, ____, 131 S.Ct. 1143, 1155, 179

L.Ed. 93 (2011) (emphasis added); see id., (“In making the primary purpose

determination, standard rules of hearsay, designed to identify some statements as

reliable, will be relevant.”); see also White v. Illinois, 502 U.S. 346, 356, 112 S.Ct.

736, 743, 116 L.Ed.2d 848 (1992)(“[A] statement made in the course of procuring

medical services, where the declarant knows that a false statement may cause

misdiagnosis or mistreatment, carries special guarantees of credibility that a trier of

fact may not think replicated by courtroom testimony.”); cf. Melendez-Diaz v.

Massachusetts, 557 U.S. ____, ___, n.2, 129 S.Ct. 2527, 2533, 174 L.Ed.2d 319

(2001) (“[M]edical reports created for treatment purposes . . . would not be

testimonial under our decision today.”) (citations omitted); Giles v. California, 554

U.S. ____, ___, 128 S.Ct. 2678, 2692-93, 171 L.Ed. 488 (2008) (“[S]ince only

testimonial statements are excluded by the Confrontation Clause[,][s]tatements to

                                          8
friends and neighbors about abuse and intimidation [by women in abusive

relationships], and statements to physicians in the course of receiving treatment

would be excluded, if at all, only by hearsay rules[.]”); Bryant, 562 U.S. at ____,

131 S.Ct. at 1174 (Scalia, J., dissenting) (“Today’s opinion [a revisionist narrative

in which reliability continues to guide our Confrontation Clause jurisprudence]

adopts . . . the discredited logic of White [] . . . [when it] announces that in future

cases it will look to ‘standard rules of hearsay, designed to identify some

statements as reliable,’ when deciding whether a statement is testimonial.”).

Although the state has evidently not produced any proof of the victim’s demise,

unavailability of the declarant is not a prerequisite for introducing the statements as

a matter of either the hearsay exception in La. C.E. art. 803(4), or the

Confrontation Clause of the Sixth Amendment. White, 502 U.S. at 356-57, 112

S.Ct. at 743.

      On the other hand, we find no error in the exclusion of the record for

February 27, 2013, as that follow-up visit appears to have been conducted for the

primary purpose of persuading the victim to report the incident to the police as the

first step towards arresting and prosecuting her assailant, and contains the

embedded statement of the victim’s mother (testimonial in context) that abuse of

her daughter by defendant had happened on other occasions as well. See La. C.E.

art. 803(4), Cm’t (d) (“The declarant need not be the patient for this Paragraph to

apply. However, there must be sufficient indications from the circumstances that

the declarant possessed firsthand knowledge of that of which he spoke.”). In fact,

the medical personnel at Ochsner were under a legal obligation to report the

incident to the police, a duty they evidently discharged during that follow-up visit.

See R.S. 15:1504(A) (“Any person, including but not limited to a health, mental

health, and social service practitioner, having cause to believe that an adult’s

physical or mental health or welfare has been or may be further adversely affected

                                          9
by abuse, neglect, or exploitation shall report in accordance with R.S. 15:1505 [(A)

“to any adult protection agency or to any local or state law enforcement agency.”]).

      We also find no error in the trial court’s exclusion of the letters written by

the victim on August 14, 2013 and February 5, 2014, or months after the charged

offenses allegedly occurred on February 19, 2013. The letters looked backward in

time and formed part of a narrative of past events leading to the pending

prosecution of defendant. See 2 K. Broun, McCormick on Evidence, 398 (7th ed.

2013) (“In more formal hearsay terms, forward-looking statements of intention are

admitted while backward-looking statements of memory or belief are excluded

because the former do not present the classic hearsay dangers of memory and

narration. The weakness inherent in forward-looking statements - - the uncertainty

that the intention will be carried out - - may lead to exclusion, but this is under the

relevancy doctrine rather than hearsay analysis.”) (footnote omitted). We agree

with Judge Lobrano, however, that the trial court erred in excluding a letter written

by the victim on January 19, 2012 in its entirety. Portions of that letter, in which

the victim revealed her apparent resolve to end her relationship with defendant and

to move on, are admissible as a matter of La. C.E. art. 803(3), if properly

authenticated, to show her then existing state of mind, but only if any references to

prior acts of abuse ostensibly committed by defendant are fully redacted. See State

v. Magee, 11-0574, pp. 44-45 (La. 9/28/12), 103 So.3d 285, 317-18, cert. denied,

___ U.S. ____, 134 S.Ct. 56, 187 L.Ed.2d 49 (2013) (portions of letter written by

victim before her murder expressing her “existing state of mind regarding her

relationship with the defendant and her determination to establish a life on her

own” were admissible; other portions of the letter “look[ing] backward in time,

reflecting on the last nine years of her life and the events that preceded and

precipitated her breakup with the defendant . . . [including] the abuse, both

physical and mental, she ostensibly suffered at the defendant’s hands” were

                                          10
inadmissible); see also State v. Welch, 615 So.2d 300, 303 (La. 1993) (“[T]he state

could not place the circumstances of the offense in their proper context without

reference to the nature of the relationship existing between the victim and the

defendant. . . . The primary purpose of the evidence was not to prove Welch’s bad

character but to illustrate the volatile nature of his relationship with the victim and

his inability to put her behind him and ‘get on with his life.’”).

      Accordingly, the decision of the district court is reversed in part and

affirmed in part and this case is remanded to the court for further proceedings.


REVERSED IN PART; AFFIRMED IN PART; CASE REMANDED.




                                           11
03/17/15

                     SUPREME COURT OF LOUISIANA

                                No. 2014-KD-1526

                             STATE OF LOUISIANA
                                      v.
                              DAVID KOEDERITZ


CRICHTON, J., additionally concurring:

      I concur in all respects with the majority opinion that the victim’s statements

to medical personnel reflected in the certified Ochsner Hospital records of

February 23 and 25, 2013, are admissible under La. C.E. art. 803(4). Moreover, I

agree that the statements are non-testimonial for purposes of the Confrontation

Clause because they were not procured for trial purposes, much like an alleged

victim’s statements to a forensic psychiatrist. Finally, as the majority correctly

notes, the victim’s letter of January 19, 2012 (over one year prior to the alleged

crime) reflects her then-existing state of mind and her intentions, and is therefore

admissible under La. C.E. art. 803(3). This evidence is crucial in a domestic abuse

battery case, particularly where, as here, the victim is “unavailable” under law.

      I write separately to caution attorneys as to the discretion, care and restraint

that must be exercised when presenting this type of evidence – especially in a jury

trial. In some cases, portions of the medical records will need to be carefully

redacted; cases involving letters or diary entries by the “unavailable” victim

require scrutiny and measured restraint to ensure compliance with the

Confrontation Clause and the Louisiana Code of Evidence. Finally, the trial judge,

as the gatekeeper, should recognize his or her obligation under La. C.E. art. 403 to

balance the probative value of the tendered evidence versus the potential prejudice

                                          1
such that the defendant receives due process.        Thus, with this cautionary

instruction, I embrace the rationale of Judge Lobrano’s dissent and wholeheartedly

agree with the majority’s conclusion in this case.




                                          2
