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Clark v. State (1/16/2009) ap-2205

Clark v. State (1/16/2009) ap-2205

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts:

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us

         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


TRAVIS D. CLARK, )
) Court of Appeals No. A-8890
Appellant, ) Trial Court No. 3PA-04-208 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) No. 2205 January 16, 2009
)
          Appeal  from the District Court,  Third  Judi
          cial District, Palmer, Gregory Heath, Judge.

          Appearances:  Craig Condie, Assistant  Public
          Defender, Palmer, and Quinlan Steiner, Public
          Defender,   Anchorage,  for  the   Appellant.
          Diane   L.   Wendlandt,  Assistant   Attorney
          General,  Office of Special Prosecutions  and
          Appeals,  Anchorage, and  Talis  J.  Colberg,
          Attorney General, Juneau, for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.
          COATS, Chief Judge, dissenting.

          Travis  D.  Clark appeals his conviction for assaulting
his  girlfriend, Loretta B. Amouak.  Although our prior  decision
in  this case, Clark v. State, Alaska App. Memorandum Opinion No.
5112  (September 6, 2006), 2006 WL 2578642, contains  a  detailed
description of the underlying facts, the pertinent facts  can  be
described in a few paragraphs:
          Amouak,  who  had  been  drinking,  and  whose  drivers
license  apparently was revoked, borrowed Clarks truck and  drove
it  into a ditch.  Clark and a friend of Amouaks, Kimberly Yadon,
went  out  to  pick up Amouak, and Yadon brought her  back  home.
Several  hours later, Amouak called Yadon, and Yadon brought  her
to  the  hospital with a fractured nose, a black eye, and bruises
on her neck, arms, and legs.1
          Amouak  told  the  emergency room  personnel  that  she
sustained  these  injuries  when  her  boyfriend  (i.e.,   Clark)
assaulted  her.   At  trial,  Clark  claimed  self-defense:    he
asserted  that Amouak had attacked him, and that he had acted  to
protect himself.2  Thus, as we noted in our prior decision, [t]he
main  question  before  the jury was ... not  whether  Clark  had
caused  Amouaks injuries[,] but whether ... her injuries resulted
from  an assault.  Clark, Memorandum Opinion No. 5112 at 13, 2006
WL 2578642 at *7.
          Although Amouak was scheduled to be a witness at Clarks
trial, she ultimately claimed the Fifth Amendment and declined to
testify.   To prove how Amouak sustained her injuries, the  State
relied  on  hospital records which described the statements  that
Amouak  made to the emergency room personnel  in particular,  her
assertions  that she sustained her injuries as the result  of  an
assault by her boyfriend.3
          The  question presented on appeal is whether the  trial
judge  properly  allowed  the State  to  introduce  this  hearsay
evidence   (i.e.,   the  hospital  records   describing   Amouaks
statements to the emergency room personnel) or whether, as  Clark
contends,  this evidence should have been excluded as testimonial
hearsay under the confrontation clause of the Sixth Amendment  as
construed in Crawford v. Washington4 and Davis v. Washington.5

     The  admissibility of the hospital records under Alaska
     Evidence   Rule  803(4),  the  hearsay  exception   for
     statements  made for purposes of medical  diagnosis  or
     treatment
     
               Before  we  turn to the confrontation  clause
     issue, we should briefly recapitulate the conclusion we
     reached  in  our  previous  decision  in  Clarks   case
     concerning  the  admissibility of the hospital  records
     under the hearsay rules.
               Amouaks  statements  to  the  emergency  room
     personnel were hearsay, in that they were introduced at
     Clarks  trial for the truth of the matters asserted  in
     the  statements.   However, for the  most  part,  those
     statements were admissible under the hearsay  exception
     codified  in Alaska Evidence Rule 803(4)  the exception
     for   statements  made  for  the  purpose  of   medical
     diagnosis or treatment.
               Under  Rule 803(4), the State could introduce
     evidence  that Amouak told the emergency room personnel
     that  she  sustained her injuries as a result of  being
     struck  by another person (as opposed to being  injured
     in  a  car  accident, or in a fall, or  by  some  other
     cause),  as  well  as  evidence of  Amouaks  statements
     describing  such  things as the number  of  blows,  the
               manner in which they were inflicted, and the amount of
     force  behind  these blows  for all of  this  would  be
     relevant to medical diagnosis and treatment.
          However,  the medical diagnosis and treatment
hearsay   exception  does  not  normally  encompass   a
patients identification of the person who hurt them  or
a  patients  attributions of fault.6  Because  of  this
limitation, Clark had a valid hearsay objection to  the
hospital records to the extent that they reported  that
Amouak  identified Clark as the one who struck her,  or
to  the  extent  that Amouak might have  asserted  that
Clark had no justifiable reason to do so.
          But  as  we  explained in our prior decision,
Clark  made no hearsay objection when the State offered
the  hospital  records.7  Several  days  later,  Amouak
invoked her privilege against self-incrimination (after
testimony at the trial indicated that Amouak  had  been
driving  while intoxicated, and driving with a  revoked
license, when she borrowed Clarks truck).8  Only  then,
after Amouak invoked her Fifth Amendment privilege  and
refused to testify, did Clarks attorney belatedly raise
a  hearsay  objection  to the hospital  records.9   The
trial judge ruled that Clarks objection was untimely.10
          In  our earlier decision in Clarks appeal, we
upheld  the  trial  judges ruling that  Clarks  hearsay
objection  was  untimely.  Clarks primary  argument  in
favor  of  allowing him to make a tardy  objection  was
that  he  purportedly had no reason to  object  to  the
hearsay  in the hospital records until it became  clear
that Amouak was unavailable as a witness.  But we noted
that  Amouaks availability as a witness did not  affect
the  admissibility of the hospital records  because the
medical diagnosis and treatment hearsay exception  does
not  hinge  on  whether the declarant is  available  to
testify.11   We  further explained that,  under  Alaska
law,  it  is proper [for] a trial court ... to  receive
hearsay  when no objection has been made.12  For  these
reasons, we concluded that Clarks trial judge  did  not
err  by admitting the hearsay testimony that Clark  now
challenges  or  by  denying Clarks  belated  motion  to
strike Amouaks statements on hearsay grounds.13
          Given our ruling on this hearsay question  in
our  prior  decision, the only issue before us  now  is
Clarks  claim  that,  even though Amouaks  out-of-court
statements  may have been properly admitted  under  the
law   governing  hearsay  evidence,  those   statements
nevertheless  should  have  been  excluded  under   the
confrontation clause of the Sixth Amendment.

The district courts findings on remand

          In  our  earlier decision in Clarks case,  we
concluded  that we could not resolve the  confrontation
clause  issue without additional information  regarding
the circumstances surrounding Amouaks statements at the
          emergency room.  We therefore directed the district
court  to  hold an evidentiary hearing to inquire  into
the  nature  and purpose of Amouaks statements  to  the
emergency room personnel.
          At  the evidentiary hearing, Amouak testified
that  her  purpose in telling the doctor what  happened
(i.e.,  how  she  came  to be injured)  was  to  obtain
medical treatment  because she was concerned about  the
injuries  to  her  face.  Amouak said  that  she  heard
something  break in her face, and she was worried  that
her face would be deformed.
          As to the emergency room doctor and nurse who
interviewed  Amouak, the district court concluded  that
they questioned Amouak about her injuries, and recorded
Amouaks answers, purely for medical purposes.

Clarks attack on the district courts findings on remand

          In  the present appeal, Clark argues that  he
was  denied  due  process  of law  at  the  evidentiary
hearing  on  remand.  Clark argues  that  the  district
court  committed error by relying on Amouaks  testimony
at   that  hearing  after  Amouak  invoked  the   Fifth
Amendment  rather  than answer certain  questions  that
Clarks attorney posed to her during cross-examination.
          The questions that Clarks attorney wanted  to
ask  Amouak  dealt with the facts (1) that  Amouak  had
apparently been driving while intoxicated, and  driving
with  a revoked license, when she borrowed Clarks truck
on  the night of the incident, and (2) that when Amouak
summoned  her friend, Kimberly Yadon, to transport  her
to the hospital, they agreed that they would lie to the
authorities about Amouaks driving.  Amouak invoked  her
Fifth  Amendment  privilege rather  than  answer  these
questions  concerning  what  happened  earlier  on  the
evening   of  the  assault  (before  she  reached   the
hospital).
          Clark now argues that, because Amouak invoked
her  Fifth  Amendment privilege and refused  to  answer
questions about these matters when she testified at the
evidentiary  hearing  on  remand,  the  district  court
should   have   struck   Amouaks  evidentiary   hearing
testimony  in its entirety.  We disagree.  It  is  true
that  when  a witness invokes an evidentiary  privilege
and  refuses  to answer questions pertaining  to  their
potential bias or motive to fabricate, a court  may  be
required  to  strike  the  witnesss  testimony  in  its
entirety.  But if the specific subject matter [of]  the
question  as  to  which  the privilege  is  invoked  is
cumulative   or   remote,  or  if  the   defendant   is
[otherwise] afforded an adequate independent  means  to
establish the witness[s] bias, the court can allow  the
witnesss  testimony to be considered by the  finder  of
fact.   Jackson  v.  State, 695 P.2d 227,  230  (Alaska
App. 1985).
          Here,  the  finder of fact was  the  district
court  itself,  and  the court was well  aware  of  the
factual basis for the defense attorneys questions.   At
Clarks  trial, Kimberly Yadon testified  that,  on  the
night  of  the  incident, Amouak was drinking  and  had
driven  Clarks  truck  into  a  ditch.   Yadon  further
testified that, at Amouaks request, she agreed  to  lie
about whether Amouak had been driving that evening   so
that  Amouak could escape any charges connected to  her
driving of the truck.
          At  the evidentiary hearing on remand, Clarks
attorney  relied on these facts to argue  that  Amouaks
testimony  at  that evidentiary hearing should  not  be
believed.   When  the  prosecutor  questioned   whether
Clarks attorney could rely on testimony given at  trial
to  attack Amouaks testimony at the evidentiary hearing
on  remand, the district court declared that  this  was
proper,  and that the court would take judicial  notice
of  the testimony already given at Clarks trial.  Thus,
even though Amouak refused to answer questions on these
matters, Clarks attorney was able to argue his point.
          Accordingly, we hold that the district  court
could  properly consider and rely on Amouaks  testimony
at  the evidentiary hearing despite Amouaks refusal  to
answer   the  defense  attorneys  questions  on   these
matters.

Did  the  admission  of  the hearsay  in  the  hospital
records   violate  Clarks  Sixth  Amendment  right   to
confrontation?

          The   remaining  question  is   whether   the
confrontation  clause of the Sixth Amendment  precluded
the  State  from  introducing the hospital  records  at
Clarks  trial  when  those  records  contained  hearsay
evidence of Amouaks statements describing the assault.
          In  Crawford v. Washington, 541 U.S. 36,  124
S.Ct.  1354, 158 L.Ed.2d 177 (2004), the Supreme  Court
held  that,  even when hearsay evidence  is  admissible
under  the  rules  of evidence governing  hearsay,  the
confrontation  clause of the Sixth Amendment  prohibits
the government from introducing evidence of testimonial
hearsay  statements  at  a criminal  trial  unless  the
declarant  (i.e., the person who made the  out-of-court
statements)  testifies  at the  trial,  or  unless  the
government  shows that the declarant is unavailable  to
testify  and that the defendant had a prior opportunity
to    cross-examine   the   declarant    about    those
statements.14
          Although  Crawford declares that a  statement
is  clearly testimonial if it is [a] solemn declaration
or  affirmation made for the purpose of establishing or
proving some fact,15 the Supreme Court did not adopt  a
precise definition of testimonial hearsay, nor did  the
Court attempt to outline the full scope of this term.
          Numerous  courts have considered the question
of  whether,  or when, statements made to  health  care
providers  are testimonial for purposes  of  the  Sixth
Amendment.   We believe that the most persuasive  court
decisions  on  this question are the ones issued  after
the Supreme Courts decision in Davis v. Washington, 547
U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).
          The  issue presented in Davis was whether the
hearsay account of a crime victims statements to a  911
operator,  describing an ongoing crime and  identifying
the  perpetrator, should be deemed testimonial hearsay.
The  Supreme Court assumed, without deciding, that  the
911  operators were police agents.16  Nevertheless, the
Court  held  that  the  victims responses  to  the  911
operators questions were not testimonial:
     
          Statements  are  nontestimonial,  [even]
     when   made   in   the   course   of   police
     interrogation[, if the statements  are  made]
     under  circumstances  objectively  indicating
     that the primary purpose of the interrogation
     is  to  enable police assistance to  meet  an
     ongoing  emergency.   [On  the  other   hand,
     statements   made   in   answer   to   police
     interrogation]  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.
     
     Davis, 547 U.S. at 822, 126 S.Ct. at 2273-74.
          The   Court   declared   that   its
assessment  in  Davis  was  premised  on  the
following aspects of the situation:  (1)  the
victim  was  describing events as  they  were
happening, not describing past events;17  (2)
the nature of the operators questions and the
victims  answers, viewed objectively,  showed
that  the  elicited statements were necessary
to  be able to resolve the present emergency,
rather  than  simply to learn  ...  what  had
happened  in the past;18 and (3) the  victims
statements  were  not elicited  in  a  formal
interview;   rather,   they   were    excited
statements elicited over the telephone in  an
environment  that was not tranquil,  or  even
(as  far as any reasonable 911 operator could
make  out) safe.19  The importance  of  these
circumstances,  the Supreme Court  explained,
was  that  they  objectively indicate[d  that
the]  primary  purpose [of the interrogation]
was  to  enable police assistance to meet  an
ongoing  emergency.  [The victim] simply  was
not   acting  as  a  witness;  she  was   not
          testifying.  What she said was not a weaker
substitute for live testimony at trial[.]20
          Both  Crawford and Davis dealt with
police   interrogations.   (As  we  explained
earlier,  the Court decided Davis  under  the
assumption that the 911 operators were agents
of  the police.)  Thus, neither Crawford  nor
Davis  directly  addresses the  issue  before
this  Court:   whether statements  to  health
care  providers are, or can be,  testimonial.
Indeed, in Davis, the Supreme Court expressly
declined  to address the question of  whether
and  when  statements made to  someone  other
than    law    enforcement   personnel    are
testimonial.  21   Nevertheless,  after   the
Supreme   Court   issued  its   decision   in
Crawford,   several  courts   have   had   to
determine whether statements to a health care
provider were testimonial for Sixth Amendment
purposes.
          Before  Davis  was  decided,  these
courts  often  applied the objective  witness
formulation  found  in  Crawford.   That  is,
these  courts  tried  to assess  whether  the
statement was made under circumstances  which
would   lead   an   objective   witness    an
objectively   reasonable   person   in    the
declarants position22  to reasonably  believe
that the statement would be available for use
at a later criminal trial.23
          Although  this method  of  analysis
may be useful in many situations, it can also
lead  to  results that are inconsistent  with
Davis.   The facts and the holding  of  Davis
illustrate  this point.  It may be reasonable
for a person to assume that, if they report a
crime to 911 operators, their statements will
be recorded and available for use in a future
criminal   prosecution.   Nevertheless,   the
Court  in  Davis held that the crime  victims
statements  to  the  911  operator  were  not
testimonial    largely   because    of    the
circumstances  in which they were  given  (an
ongoing emergency), and the purpose for which
they  were given (to obtain police assistance
to meet that emergency).
          Indeed,  a  few pre-Davis decisions
declined  to  follow  the  objective  witness
formulation   of  the  test  for  testimonial
hearsay  articulated in  Crawford.   Instead,
these courts  anticipating the Supreme Courts
approach in Davis  focused on the question of
whether  the primary purpose of the interview
was medical diagnosis and treatment (in which
case  the  statement was not testimonial)  or
          investigating a crime and developing
testimony  for  trial  (in  which  case   the
statement was testimonial).
          For  instance, in State v.  Vaught,
682  N.W.2d  284  (Neb. 2004),  the  Nebraska
Supreme   Court  concluded,  based   on   the
following facts, that a statement made  by  a
four-year-old sexual abuse victim to a doctor
was  not testimonial, even though the victims
statement identified her abuser:

     [T]he  victims identification of  Vaught
as  the perpetrator was a statement made  for
the   purpose   of   medical   diagnosis   or
treatment.   In the present case, the  victim
was taken to the hospital by her family to be
examined[,]  and the only evidence  regarding
the   purpose  of  the  medical  examination,
including the information regarding the cause
of   the  symptoms,  was  to  obtain  medical
treatment.   There  was no  indication  of  a
purpose  to develop testimony for trial,  nor
was   there   an  indication  of   government
involvement  in the initiation or  course  of
the examination.

Vaught,   682  N.W.2d  at  291-92  (citations
omitted).24
          Some  courts have attempted to meld
the  confrontation clause analysis  with  the
hearsay  analysis  by  dividing  the  victims
statement   into  two  parts:   the   victims
assertions  concerning  when  and   how   the
criminal  conduct  occurred  (the  statements
that  would  be admissible under the  hearsay
exception    for   medical   diagnosis    and
treatment) are deemed non-testimonial  (i.e.,
admissible at trial even if the victim is not
available  to  testify),  while  the  victims
assertions  concerning the  identity  of  the
perpetrator are deemed testimonial unless the
government  establishes that the identity  of
the  perpetrator  was information  reasonably
relied  on  by the physician as pertinent  to
the diagnosis or treatment of the victim.
          See, for instance, United States v.
Cree,  400  F.Supp.2d  1192,  1197  (D.  N.D.
2005), and In re T.T., 815 N.E.2d 789, 803-05
(Ill.  App. 2004).  The court in In  re  T.T.
concluded   that  a  seven-year-old   victims
statement   to   a  doctor  identifying   her
assailant  was  testimonial,  but  that   her
statements  describing  the  cause   of   her
symptoms  and pain, and the general character
of  the  assault, were not testimonial.   (We
          note that the decision in In re T.T. was
later  vacated by the Illinois Supreme Court:
In re T.T., 866 N.E.2d 1174 (Ill. 2007).)
          This  approach may seem  attractive
at  first  glance, because  it  simplifies  a
judges  task.  Under this approach,  in  most
instances,  the judge would simply  ascertain
whether    the   challenged   evidence    was
admissible under the hearsay rules  governing
statements  made for the purpose  of  medical
diagnosis   or   treatment,  and   then   the
confrontation issue would be resolved too.
          But Crawford and Davis are premised
on  the  idea  that  a  defendants  right  of
confrontation is distinct from  the  policies
that  underlie  the hearsay  rules.   As  the
Supreme Court explained in Crawford,

     [T]he   principal  evil  at  which   the
Confrontation  Clause was  directed  was  the
civil-law  mode  of criminal  procedure,  and
particularly   [the]   use   of   ex    parte
examinations  [of  witnesses]   as   evidence
against   the   accused.   ...    The   Sixth
Amendment must be interpreted with this focus
in mind.
     .  .  .

     This  focus  ... suggests that  not  all
hearsay implicates the Sixth Amendments  core
concerns.   An  off-hand,  overheard   remark
might  be unreliable evidence[,] and  thus  a
good  candidate  for  exclusion  under  [the]
hearsay  rules,  but [the admission  of  such
evidence]  bears  little resemblance  to  the
civil-law  abuses  the  Confrontation  Clause
targeted.   On  the  other hand,  [statements
made  during]  ex  parte  examinations  might
sometimes be admissible under modern  hearsay
rules,  but the Framers certainly  would  not
have condoned them.

Crawford,  541 U.S. at 50-51,  124  S.Ct.  at
1363-64.
          As  the  results  in  Crawford  and
Davis   illustrate,  hearsay   evidence   may
violate  a  defendants right of confrontation
even though that evidence might be admissible
under the hearsay rules.  Thus, the fact that
hearsay might be admissible under the medical
diagnosis  and treatment exception does  not,
per  se,  guarantee that the hearsay is  non-
testimonial for Sixth Amendment purposes.  On
the  other  hand, as the last-quoted  excerpt
from  Crawford  points  out,  the  fact  that
hearsay  would  not be admissible  under  the
hearsay rules does not, per se, mean that the
admission  of  this  testimony  violates  the
Sixth Amendment.
          In    sum,   there   is   no   easy
correlation  between  (1)  admissibility   of
hearsay  under the confrontation  clause  and
(2)   admissibility  of  hearsay  under   the
exception for statements made for the purpose
of   medical  diagnosis  or  treatment.    In
particular, given the Supreme Courts analysis
in Crawford and Davis, a court can not simply
adopt  the  rule that statements for  medical
purposes   are   non-testimonial    if    the
declarants  assertions  are  confined  to   a
description of the crime, and testimonial  if
the  declarant makes an assertion  about  the
identity of the perpetrator.
          We   believe  that  the  California
Supreme  Courts decision in People  v.  Cage,
155  P.3d  205 (Cal. 2007), cert. denied  128
S.Ct.  612,  169  L.Ed.2d  395  (2007),  more
accurately  describes  the  Sixth   Amendment
analysis that applies to Clarks case.
          The  defendant in Cage was  accused
of  using  a  shard  of glass  to  slash  her
teenage sons face.  Following the attack, the
victim  was taken by ambulance to a  hospital
for treatment.25  While the victim was in the
hospital waiting to be seen by emergency room
doctors,  he  was  interviewed  by  a  police
officer, and he described the attack  to  the
officer.26   A little later, the  victim  was
evaluated  by  emergency room physicians  and
then  he  was taken to a surgeon specializing
in  head  and  neck injuries.27  The  surgeon
asked him, What happened?  In response to the
surgeons question, the victim again described
how  his  mother had cut him with a piece  of
glass.28
          The victim did not testify at Cages
trial.29  However, through hearsay testimony,
the   government   introduced   the   victims
statements  to  the police  officer  and  the
surgeon.  The trial judge ruled before  trial
that   this  hearsay  was  admissible   under
California evidence law.30
          Cage   was   convicted,   and   she
appealed.   While  her  appeal  was  pending,
first Crawford and then Davis were decided.31
Based  on  the  United States Supreme  Courts
decision  in  Davis,  the California  Supreme
Court   concluded   that  (1)   the   victims
statements  to the police officer constituted
testimonial hearsay, and the introduction  of
          these statements at Cages trial violated her
right  of confrontation, but (2) the  victims
similar  statements to the surgeon  were  not
testimonial hearsay, and thus the  government
could validly introduce that evidence against
Cage  even though the victim did not  testify
at Cages trial.32
          The California court declared that,
under  the principles announced in Davis,  it
was  manifest that the victims answers to the
police  officers  questions in  the  hospital
waiting room were testimonial hearsay.33
          The  court  pointed  out  that  the
officer  had  been dispatched to  investigate
the  domestic disturbance, and he  found  the
victim  sitting  on  a  curb  with  his  face
slashed.   When  emergency medical  personnel
transported  the victim to the hospital,  the
officer did not accompany them.  Instead,  he
came  to the hospital later to interview  the
victim.34  As the California court explained:

     [B]y  the time [the officer] spoke  with
[the  victim], the incident that caused  [the
victims]  injury had been over for more  than
an  hour.   The  alleged  assailant  and  the
alleged victim were geographically separated,
[and  the victim] had been taken to a  remote
location  to receive medical treatment.   ...
[H]e was in no danger of further violence  as
to  which contemporaneous police intervention
might be required.
     .  .  .

     [The  officers] clear purpose in  coming
to  speak with [the victim] was not  to  deal
with  a  present emergency, but to  obtain  a
fresh  account of past events ... as part  of
an inquiry into possible criminal activity.

Cage,  155  P.3d at 217-18 (emphasis  in  the
original).
          But   when  the  California   court
applied  a  Davis analysis to the  statements
that  the  victim  gave to the  surgeon,  the
court  concluded  that these statements  were
non-testimonial.35  Here  is  how  the  court
explained its decision:

     [When the victims conversation with  the
surgeon   took  place,  the  victim]   needed
immediate acute treatment for a five- or six-
inch  laceration on the side of his face  and
neck.   As [the surgeon] explained, his  sole
object  in asking [the victim] what  happened
     was to determine ... the exact nature of the
wound,   and   thus  the  correct   mode   of
treatment.  The question was neutral in form,
and   though   [the  victim]   responded   by
identifying  [Cage]  as his  assailant,  [the
surgeon]  did not pursue that avenue further.
Objectively  viewed, the primary  purpose  of
the  [surgeons] question, and  the  [victims]
answer,  was not to establish or  prove  past
facts  for possible [prosecutorial] use,  but
[rather] to help [the surgeon] deal with  the
immediate medical situation[.]  It  was  thus
akin   to   the   911   operators   emergency
questioning of [the victim] in Davis.

Cage, 155 P.3d at 218.
          The  California court further noted
that   there  [was]  no  evidence  that  [the
surgeon]  was acting in conjunction with  law
enforcement, or that his question  about  the
cause   of  [the  victims]  injury  had   any
evidence-gathering aim.   ...   The  question
and answer occurred in a private conversation
between  a patient and his doctor,  by  which
both  [the patient and the doctor] presumably
sought  only to ensure [the patients]  proper
treatment.36
Application of these principles to Clarks case

          As   explained  above,  the  district   court
concluded  (based  on the testimony  presented  at  the
evidentiary  hearing) that when Amouak was  interviewed
by  the  nurse and the doctor at the hospital emergency
room,  the  primary  purpose of the  interview  was  to
secure  proper  medical  diagnosis  and  treatment   of
Amouaks  injuries.  The district courts  conclusion  is
supported by the record.
          Nurse  Matlock  testified  that  it  was  her
responsibility to interview patients newly admitted  to
the  emergency  room to determine the extent  of  their
injuries,  the cause of their injuries, what  level  of
care was needed, and how quickly the patient needed  to
see  a  doctor.   Matlock performed this assessment  of
Amouak, including a physical exam, and she recorded her
findings  in  a  patient assessment report  (which  was
admitted  at  Clarks  trial).  In her  report,  Matlock
wrote:   Assaulted by boyfriend tonight, hit  to  face,
abd[omen],  legs,  arms and eye.  Has  not  called  the
police.   Further down, under the category DV  Comment,
Matlock wrote:  By boyfriend.
          The  emergency room physician, Doctor  Leigh,
did  not  recall  the  details of  his  interview  with
Amouak,  but  he  confirmed what  was  written  in  his
medical  report:   that Amouak told him  she  had  been
assaulted by her boyfriend, and that a friend found her
          in a snow bank.  The doctor testified that he elicited
this information for medical purposes.
          In  addition,  as we have already  explained,
Amouak  testified that she came to the  emergency  room
because, during the assault, she heard something  break
in her face, and she was worried that her face would be
deformed.
          It  is  true  that, even though the  district
court  expressly  found  that the  nurses  and  doctors
primary  purpose in interviewing Amouak was  to  ensure
proper  medical diagnosis and treatment,  the  district
court  made  no  express finding as to Amouaks  primary
purpose  in  speaking  to the nurse  and  doctor.   But
Amouaks  testimony   that she sought medical  treatment
because  she  feared that she might  have  a  deforming
injury  was the only testimony on this point.  From the
wording  of  the district courts decision, we  conclude
that   the   district  court  found  Amouaks  testimony
credible.  We believe that the district court would not
have  remained  silent on this issue if the  court  had
found that Amouak had some purpose other than to secure
proper treatment for her injuries.
          We acknowledge that, objectively speaking,  a
person  in Amouaks position might reasonably anticipate
that  her  statements to the emergency  room  personnel
could  become  available to the  government  and  might
ultimately be used in a criminal prosecution.  But this
circumstance,  standing alone, does  not  make  Amouaks
statements to the nurse and the doctor testimonial  for
the  same  thing was true of the victims statements  to
the  911  operator in Davis, and yet the Supreme  Court
held that those statements were non-testimonial.
          One could argue that Clarks case is different
from  the facts of Davis, in that the assault committed
on  Amouak  was concluded by the time she came  to  the
emergency room, while the victim in Davis was reporting
ongoing  criminal  activity.   But  as  the  California
Supreme Court explained in Cage, when the issue is  the
proper  categorization of a patients  statements  to  a
medical  care  provider, the  case  does  not  turn  on
whether there was an ongoing risk of further injury  at
the time of the patients statements, but rather whether
there was a current need for diagnosis and treatment.37
          Clark    suggests   that,   despite   Amouaks
unrefuted  testimony to the contrary,  Amouaks  primary
purpose in speaking to the emergency room personnel was
not  to  secure medical help.  Clark points  out  that,
before  Amouak arrived at the emergency room,  she  had
ample time to contemplate her situation and to perceive
that,  if  she told the full truth about her activities
that  evening,  she could be in trouble with  the  law.
Clark  suggests that, because Amouak had this potential
motive to misrepresent the events of that evening,  the
hearsay  testimony  concerning her  statements  to  the
doctor  and  the  nurse  should be  deemed  testimonial
          hearsay for purposes of Crawford.  There are two
answers to this contention.
          First,  as we have already explained,  Clarks
attorney made this argument to the district court,  and
we  interpret the district courts decision as at  least
an implicit finding that Amouaks primary purpose was to
obtain medical care.
          Second, the Supreme Courts decision in  Davis
indicates  that the decision as to whether  hearsay  is
testimonial is not controlled by the subjective motives
of  the  parties to the conversation.  Davis implicitly
(if  not  directly)  holds that the  issue  of  primary
purpose   is   determined  objectively,   taking   into
consideration  all  of  the  circumstances  that  might
reasonably  bear  on the intent of the participants  to
the conversation.38
          When  we take into consideration all  of  the
pertinent circumstances here  the underlying events  of
the  evening  in question, plus the subsequent  actions
and statements of Amouak, the nurse, and the doctor  we
conclude that these circumstances objectively establish
that Amouak and the emergency room personnel shared the
primary purpose of obtaining / providing proper medical
care for Amouak.

Conclusion

          For  the  reasons explained here, we conclude
that  the  statements  attributed  to  Amouak  in   the
hospital  records  were  not  testimonial  hearsay   as
defined in Crawford and Davis.  Therefore, even  though
Amouak did not testify at Clarks trial, the governments
introduction of this hearsay at trial did  not  violate
Clarks   right   of  confrontation  under   the   Sixth
Amendment.
          The  judgement  of  the  district  court   is
AFFIRMED.
COATS, Chief Judge, dissenting.

          Travis Clark was convicted of assaulting  his
girlfriend,  Loretta  Amouak.  Amouaks  statements   to
hospital  staff  that  her injuries  resulted  from  an
assault by her boyfriend were a key part of the  States
evidence against Clark.
          According to Amouaks friend, Kimberly  Yadon,
Amouak borrowed Clarks truck without his permission  on
the  night of the assault, after she had been drinking.
Amouak drove the truck into a ditch, miring it in  deep
snow.   Clark and Yadon picked Amouak up and drove  her
to  the  house she and Clark shared.  Yadon  could  see
that Clark was angry with Amouak, and she was concerned
about  leaving Amouak alone with him.  But  Amouak  was
also angry; after she called Yadon a slut, Yadon left.
          Several hours later, Amouak telephoned Yadon.
Amouak  was crying and hysterical, and she asked  Yadon
to  pick  her  up  at a store near Amouaks  and  Clarks
residence.  When Yadon arrived, she saw that Amouak had
a black eye, a bruised face, and a swollen nose.  Yadon
drove Amouak to the hospital.  Because Amouak had  been
drinking and driving without a valid license, Yadon and
Amouak  agreed not to tell anyone that Amouak had  been
driving  that  night.   Yadon  then  called  the  state
troopers  to report the assault.  According to  Amouaks
medical  records, Amouak told hospital staff  that  her
boyfriend had assaulted her and that a friend found her
in a snowbank after the assault.
          During  trial,  the  court admitted,  without
objection,  the  medical  records  pertinent  to   this
incident.   Those  records documented Amouaks  injuries
and  her  statements identifying her boyfriend  as  her
assailant.
          Following  Yadons testimony that  Amouak  had
been  drinking  and  driving with  a  revoked  license,
District   Court  Judge  Gregory  Heath  appointed   an
attorney to advise Amouak that she risked incriminating
herself  if she testified.  Following several  days  of
negotiation, the State refused to grant Amouak immunity
from   prosecution,  and  Amouak  asserted  her   Fifth
Amendment right not to incriminate herself.
          At  this point, realizing that Amouak was not
going  to testify, Clark objected to Amouaks previously
admitted  statements in her medical  records  that  her
boyfriend had assaulted her.  Clark objected  that  the
statements  were inadmissible hearsay  and  that  their
admission  violated  his  Sixth  Amendment   right   to
confront the witnesses against him.  Judge Heath  ruled
that  Clark  had waived these claims by  not  objecting
when the State first offered the medical records.
          On  appeal, this court concluded that because
Clark  had  not made a timely objection, he waived  the
right  to  exclude  the statements on hearsay  grounds.
But  we  concluded  that  Clarks  Confrontation  Clause
objection  was not untimely because, at  the  time  the
court admitted Amouks medical records, Clark reasonably
believed  Amouak would testify and that he  would  have
the opportunity to cross-examine her on her statements.
We  therefore remanded the case and directed the  trial
court  to  determine if Clarks confrontation right  had
been violated.
          On  remand, following an evidentiary hearing,
Judge Heath found that the information contained in the
medical  records  was gathered solely for  purposes  of
emergency  medical evaluation, diagnosis and treatment.
Judge Heath concluded that Amouaks statements were  not
testimonial under Crawford v. Washington1 and Davis  v.
Washington,2 and that their admission did  not  violate
the Confrontation Clause.
          Under  the Sixth Amendment, an accused  in  a
criminal  case  has a right to confront  the  witnesses
against  him.   In Crawford, the United States  Supreme
Court   construed   this  right  as   prohibiting   the
government  from introducing the testimonial statements
of  a witness who does not testify at trial unless  (1)
the   government  demonstrates  that  the  witness   is
unavailable  to  testify and (2) the  defendant  had  a
previous opportunity to cross-examine the witness about
the hearsay statements.3  Non-testimonial statements do
not   implicate  the  Confrontation  Clause   and   are
admissible  as  long  as  they fall  within  a  hearsay
exception.4
          I  agree  with the majority that the  Supreme
Courts  decisions in the companion cases of  Davis  and
Hammon  v.  Indiana5  are the most pertinent  cases  in
assessing  whether  the statements in  Amouaks  medical
records   identifying  Clark  as  her   assailant   are
testimonial  under Crawford.  But I do not think  those
cases provide a clear answer.
          In  Davis,  Michelle McCottry  called  a  911
operator to report that she had just been assaulted  by
her  former boyfriend, Davis, who had fled the  scene.6
Over  Daviss Confrontation Clause objection, the  trial
court  admitted a recording of the 911 call  at  Daviss
trial,  and  Davis was convicted.7  The  United  States
Supreme  Court held that admission of the 911 tape  had
not  violated  Daviss right to confront  the  witnesses
against   him.8    The  Court  noted   that   McCottrys
statements were made to obtain police assistance in  an
ongoing emergency, not to recite to the police what had
happened in the past.9
          The  Court contrasted the facts in Davis with
the  facts  in Hammon.  In Hammon, the police responded
to  a  domestic  disturbance.10  Amy  Hammon  told  the
police that her husband, Herschel Hammon, had assaulted
her.11   Amy Hammon did not testify at trial,  and  the
court  admitted  her  statements  to  the  police  over
Herschel   Hammons  objection.12   The  Supreme   Court
reversed  that  decision,  finding  that  Amy   Hammons
          statements were testimonial because they were obtained
not  to  address an ongoing emergency,  but  rather  to
establish what had happened in the past for the primary
purpose of investigating a possible crime.13
          The  Davis and Hammon cases provide  a  clear
dividing line when a crime victim makes a statement  to
the  police.   If  the statement describes  an  ongoing
emergency  that  requires immediate police  assistance,
the  statement  is generally not testimonial.   If  the
statement  does not describe an ongoing  emergency,  it
generally is testimonial.  But Davis and Hammon do  not
provide clear guidance as to when admission of an  out-
of-court  statement  that is not  made  to  the  police
violates the Confrontation Clause.
          In  the present case, Amouaks statements were
made  to  hospital staff, not to the  police.   If  the
statements had been made to the police, they  would  be
testimonial, because at the time they were  made  there
was no emergency requiring immediate police assistance.
The   question  is  whether  the  statements  are   not
testimonial because they were made to medical personnel
in the course of Amouak obtaining medical treatment.
            Amouaks out-of-court statements identifying
Clark as her assailant would not normally be admissible
over  a hearsay objection.  In Johnson v. State,14  the
Alaska  Supreme Court held as a matter of  law  that  a
domestic  violence  victims statements  to  her  doctor
identifying  her  assailant  do  not  fall  within  the
hearsay  exception for statements made for purposes  of
medical  diagnosis or treatment.15  The  supreme  court
explained  that statements fixing fault and  indicating
the  identity  of  an  assailant are  not  relevant  to
medical  diagnosis  or  treatment  and  therefore  lack
assurances of reliability and should be excluded.16
          Furthermore,  under Ohio  v.  Roberts,17  the
governing  law  before Crawford, admission  of  Amouaks
statements  identifying Clark as  her  assailant  would
violate  the Confrontation Clause.  Under the  Ohio  v.
Roberts test, statements of a hearsay declarant who  is
unavailable to testify at trial can be admitted only if
the  statements bear adequate indicia of reliability.18
Reliability  can  be  inferred if  the  evidence  falls
within a firmly rooted hearsay exception or if there is
a  showing  that  the  statements  have  particularized
guarantees  of trustworthiness.19  As discussed  above,
Amouaks statements identifying Clark would not normally
be  admissible under a hearsay exception.  And there is
certainly  no  reason to find her statements  reliable.
We  know  from Kimberly Yadons testimony that,  because
Amouak  had been drinking and driving without  a  valid
license,  Amouak and Yadon agreed before they  went  to
the hospital to lie about the fact that Amouak had been
driving  that night.  So there was testimony to support
an  inference  that Amouak was not truthful  about  the
events of that evening.
          It is not clear to me where the United States
Supreme  Court  is going with its Confrontation  Clause
analysis.   The Court overruled Ohio v. Roberts,  which
had  been  the  law since 1980, but has only  begun  to
develop  the  Confrontation Clause  analysis  it  first
announced in Crawford.  Therefore, I find myself in the
uncomfortable position of trying to predict  where  the
Courts  analysis  will go.  I do not  think  Davis  and
Hammon provide a definitive answer in this case.  I  do
know that Amouaks out-of-court statements would not  be
admissible  under the hearsay rules or  under  formerly
well-established  case  law  as  set  out  in  Ohio  v.
Roberts.
          The   Confrontation  Clause  of   the   Sixth
Amendment provides:  In all criminal prosecutions,  the
accused shall enjoy the right ... to be confronted with
the  witnesses  against  him.  Loretta  Amouak  was  an
important  witness against Clark.   Yet  Clark  had  no
opportunity   to   confront  Amouak   at   his   trial.
Fundamental  fairness suggests that  Clark  should  not
have  been  convicted  based  on  Amouaks  out-of-court
statements unless the jury had the opportunity  to  see
Amouak testify, to see Clark cross-examine her, and  to
weigh  Amouaks credibility on that basis.  I  therefore
respectfully dissent.
_______________________________
  1  Clark,  Memorandum Opinion No. 5112 at 1-3, 2006 WL  2578642
at *1.

  2  Id.,  Memorandum Opinion No. 5112 at 13, 2006 WL 2578642  at
*7.

  3  Id.,  Memorandum Opinion No. 5112 at 2, 2006 WL  2578642  at
*1.

  4 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

  5 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).

6  See Johnson v. State, 579 P.2d 20, 22 (Alaska 1978);  see
also  State  v. Nollner, 749 P.2d 905, 908-09  (Alaska  App.
1988);  Sluka  v. State, 717 P.2d 394, 399 &  399-400  n.  6
(Alaska App. 1986).

7 Clark, Memorandum Opinion No. 5112 at p. 3, 2006 WL 2578642
at *2.

8 Id.

9 Id.

10Id.

11Id., Memorandum Opinion at 5, 2006 WL 2578642 at *2.

12Id.,  quoting Cassell v. State, 645 P.2d 219, 221  (Alaska
App. 1982).

13Id.

14Crawford, 541 U.S. at 59, 124 S.Ct. at 1369.

15Id., 541 U.S. at 51, 124 S.Ct. at 1364.

16Davis, 547 U.S. at 823 n. 2, 126 S.Ct. at 2274 n. 2.

17  Id., 547 U.S. at 827, 126 S.Ct. at 2276.

18  Id.

19  Id., 547 U.S. at 827, 126 S.Ct. at 2276-77.

20  Id., 547 U.S. at 828, 126 S.Ct. at 2277 (emphasis in the
original).

21  Id., 547 U.S. at 823, n. 2, 126 S.Ct. at 2274 n. 2.

22  People v. Vigil, 127 P.3d 916, 924 (Colo. 2006) (en banc)
(reviewing  cases  construing Crawford  and  concluding
that   the   term  objective  witness  refers   to   an
objectively   reasonable  person  in   the   declarants
position).

23  See, e.g., Vigil, 127 P.3d at 926 (concluding that a
seven-year-old victims statements to a doctor were  not
testimonial   because,  under  the   circumstances,   a
reasonable seven-year-old would not have believed  that
those  statements  would be used at a criminal  trial);
State  v.  Scacchetti, 690 N.W.2d 393, 396 (Minn.  App.
2005)   (concluding   that  a  three-year-old   victims
statements were not testimonial because the examination
was for purposes of medical diagnosis and the defendant
failed to show that the circumstances led the victim to
reasonably  believe  that  her  disclosures  would   be
available for use at a later criminal trial); State  v.
Sheppard,  842  N.E.2d 561, 563, 567 (Ohio  App.  2005)
(concluding that a six-year-old victims statements were
not   testimonial  because  the  examination  was   for
purposes of medical diagnosis and there was no evidence
to  show  that the victim realized that her  statements
would  be  used  in a criminal prosecution);  State  v.
Saunders,  132  P.3d 743, 746, 749  (Wash.  App.  2006)
(Here,  there is no reason to believe that a reasonable
person in [the adult victims] position would think  she
was   making  a  record  of  evidence  for   a   future
prosecution  when  she  told  [the  paramedic  and  the
doctor] that her injuries occurred as a result  of  her
boyfriend  choking  her and throwing  her  against  the
wall.);  State  v.  Moses, 119 P.3d  906,  907-08,  912
(Wash.  App. 2005) (concluding, after noting  that  the
doctor had no role in the investigation of the assault,
that  there was nothing in the record to indicate  that
the adult victim believed or had reason to believe that
her statements to the doctor identifying her husband as
her  abuser  would  be  used at  a  subsequent  trial).
Compare  People v. Sisavath, 13 Cal.Rptr.3d  753,  756,
757-58 (Cal. App. 2004) (concluding that the statements
made  by a child victim in an interview conducted by  a
specially    trained    forensic    interviewer    were
testimonial, where the interview took place  after  the
preliminary hearing, and was conducted in the  presence
of the district attorney and investigator).

24  Compare State v. Snowden, 846 A.2d 36, 47 (Md. App. 2004)
(statements made by child victims to a child protective
services  social  worker  were  made  for  purposes  of
criminal prosecution, and thus were testimonial).

25  Cage, 155 P.3d at 208.

26  Id.

27  Id.

28  Id.

29  Id. at 209.

30  Id. at 210.

31  Id. at 210 & 213-14.

32  Id. at 217, 222.

33  Id. at 217.

34  Id.

35  Id. at 222.
36  Id. at 219.
37Cage, 155 P.3d at 216-17, 218-19.

38See Davis, 547 U.S. at 826, 126 S.Ct. at 2276 (The question
before  us  ...  is  whether,  objectively  considered,  the
interrogation that took place in the course of the 911  call
produced  testimonial statements.) and 547 U.S. at 828,  126
S.Ct.   at  2277  (We  conclude  from  all  this  that   the
circumstances  of  [the] interrogation objectively  indicate
[that]  its  primary purpose was to enable police assistance
to meet an ongoing emergency.).

1 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

2 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).

3 541 U.S. at 59, 124 S. Ct. at 1369.

4  Davis, 547 U.S. at 821, 126 S. Ct. at 2273; Crawford, 541
U.S. at 68, 124 S. Ct. at 1374.

5 Davis, 547 U.S. 813, 126 S. Ct. 2266.  Davis and Hammon were
consolidated in Davis.  However, I refer to them  separately
for purposes of comparison.

6 Id. at 817-18, 126 S. Ct. at 2270-71.

7 Id. at 819, 126 S. Ct. at 2271.

8 Id. at 827-29, 126 S. Ct. at 2276-77.

9 Id. at 827-28, 126 S. Ct. at 2276-77.

10Id. at 819, 126 S. Ct. at 2272.

11Id. at 820-21, 126 S. Ct. at 2272-73.

12Id. at 820, 126 S. Ct. at 2272.

13Id. at 829-30, 126 S. Ct. at 2278.

14579 P.2d 20 (Alaska 1978).

15Id. at 22.

16Id.; see also Sluka v. State, 717 P.2d 394, 398-99 (Alaska
App.  1986) (childs statement to her doctor that her  father
had  hit  her with a shoe was inadmissible to the extent  it
identified the father as the assailant).

17448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980).

18Id. at 66, 100 S. Ct. at 2539.

19Id.

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