State v. Porter, 2018 MT 16 (Feb. 6, 2018) (Baker, J.; Sandefur, J., specially concurring) (6-0, aff’d)
Issue: (1) Whether the testimony from an emergency room physician regarding the victim’s statements made during her examination violated Porter’s rights under the Confrontation Clause; and (2) whether the district court abused its discretion in determining the ER physician’s testimony was an exception to hearsay under M.R.Evid. 803(4), as statements made for medical diagnosis or treatment.
Short Answer: (1) No, and (2) no.
Facts: Belgrade police took Michelle Allen to the emergency room in August 2014 after she reported being assaulted the night before by Porter. She had a black eye and bruises on her neck, face, and arms. At the hospital, Allen signed a medical release form authorizing the hospital to release her health information to the police.
Dr. Kuehl, an ER doctor and director of the Sexual Assault Nurse Examiner team, examined Allen. She noted injuries consistent with strangulation. Following the exam, the police arrested Porter, and charged him with felony aggravated assault.
At trial, Allen did not appear or testify, despite the issuance of a material witness arrest warrant. The state put in photos of Allen’s injuries and portions of her medical records, and called four witnesses, including Dr. Kuehl. Over Porter’s objection, Dr. Kuehl testified about the “verbal history” she elicited from Allen. She testified that she diagnosed Allen with strangulation and asphyxia, suspected posterior rib fracture, a concussion, and bruising. She said that the cause of Allen’s injuries was “assault by her domestic partner with strangulation,” and testified that in her opinion it was a near fatal strangulation.
Procedural Posture & Holding: Porter moved to exclude Dr. Kuehl’s testimony, arguing that Allen’s statements were inadmissible testimonial hearsay. The district court denied the motion, reasoning that the statements were not testimonial. The court held the statements were admissible under the hearsay exception for statements made as part of medical examinations, M. R. Evid. 803(4). The jury found Porter guilty of felony aggravated assault, and the district court sentenced him to 15 years in prison. Porter appeals, and the Supreme Court affirms.
Reasoning: (1) Under the Sixth Amendment, testimonial statements made out of court may not be admitted as evidence in a criminal trial against a defendant unless the declarant is unavailable to testify and the defendant had a previous opportunity to cross-examine the declarant. Porter argues Allen’s statements were testimonial because she had a clear reason to believe they would be used in court against Porter. He argues Dr. Kuehl was not responding to an emergency because the attack occurred the previous evening, and that Dr. Kuehl’s examination should be considered a forensic examination completed for the purpose of gathering evidence for the prosecution.
The Court holds that Allen’s primary purpose in speaking with Dr. Kuehl was to receive medical care for her injuries, not to create an out-of-court substitute for trial testimony. Allen’s statements were therefore nontestimonial and their admission did not violate Porter’s Confrontation Clause rights.
(2) Porter argues that the district court abused its discretion in admitting Dr. Kuehl’s testimony relating to (1) the attacker’s identity, and (2) Allen’s mental state as she was strangled as hearsay exceptions. Porter argues these statements were not reasonably pertinent to diagnose or treat Allen.
To be admissible under this exception, statements must be consistent with seeking medical treatment, and they must be the type relied upon by a doctor when making decisions about diagnosis or treatment. The Court holds that Dr. Kuehl used Allen’s statements regarding the severity of the attack to make diagnosis and treatment decisions. Moreover, Dr. Kuehl testified it was her “custom and habit” to inquire into patients’ state of mind during the assault. The statements identifying Allen’s attacker and expressing her state of mind were reasonably pertinent to diagnosis and treatment.
Justice Sandefur’s Concurrence (joined by Justice McKinnon): Justice Sandefur concurs in the holding but cannot join the Court’s justification that the scope of Dr. Kuehl’s medical treatment included identifying an abuser and gathering evidence. Those purposes are manifestly compelling public safety and social justice purposes. However, protecting an abused patient from her abuser after she leaves the hospital and gathering evidence to facilitate his criminal prosecution do not constitute “medical treatment” within the plain meaning, and underlying circumstantial indicia of trustworthiness, of M. R. Evid. 803(4). Admission of Dr. Kuehl’s testimony was independently correct without the need to distort the plain meaning of “medical treatment.”