Edward Richard Krasky,
Filed October 3, 2006
Kandiyohi County District Court
File No. K1-04-809
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Boyd Beccue, Kandiyohi County Attorney, C.J. Crowell, Assistant County Attorney, 415 Southwest Sixth Street, P.O. Box 1126, Willmar, MN 56201 (for appellant)
M. McMahon, McMahon & Associates Criminal Defense, Ltd.,
Considered and decided by Willis, Presiding Judge, Stoneburner, Judge, and Crippen, Judge.
Statements made by a child victim to a medical professional are testimonial for purposes of the Confrontation Clause if they are taken as part of a police investigation into past conduct against the child and there are no steps taken or still required to protect the child’s safety or welfare based on the conduct.
This appeal from a pretrial order
excluding evidence is before this court on remand from the supreme court. State
v. Krasky, 696 N.W.2d 816 (Minn. App. 2005), review granted (
April 2004, then-six-year-old T.L.K. and her then-four-year-old sister, M.R.K.,
were living with their foster parents.
Their foster mother suspected T.L.K. of inappropriately touching M.R.K.
and asked T.L.K. if anyone had ever touched her that way. T.L.K. responded by describing acts
suggesting that her father, respondent Edward Krasky, had inappropriately
touched both her and M.R.K. A few days
On May 12, 2004, the Willmar Police Department received a child-protection report regarding T.L.K. and Krasky. The report indicated that the sexual abuse had occurred on multiple occasions and involved both T.L.K. and her sister. The parental rights of both Krasky and his wife had been terminated some time before the report was received. The termination of parental rights appears to have been based, at least in part, on Krasky’s physical assault of T.L.K. in July 2001, for which he was convicted of domestic assault, and his assault against his four-month-old son in November 2002, for which he was convicted of second-degree assault.
Detective Timothy Manuel and Charlotte Hand, the child-protection worker assigned to the case, decided to have T.L.K. interviewed at Midwest Children’s Resource Center (MCRC). On May 20, 2004, a nurse practitioner at MCRC interviewed and examined T.L.K. The interview was monitored from another room by Charlotte Hand. Hand’s affidavit states that she and an adoption social worker observed the examination from the observation room, and the district court made a finding to that effect. It appears that Detective Manuel was not in the observation room but watched the interview on videotape later.
During the interview, T.L.K. had difficulty focusing and gave disjointed answers that were difficult to understand; she was able to provide more direct answers in the subsequent physical examination. In both the interview and the examination, T.L.K. described several occasions when Krasky touched her with his fingers, tongue, and penis.
Shortly after a record of the interview was delivered to Detective Manuel, Krasky was charged with six counts of first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342 (2002), and six counts of second-degree criminal sexual conduct, in violation of Minn. Stat. § 609.343 (2002). After a pretrial hearing on Krasky’s motions to suppress the state’s evidence, the district court ruled that T.L.K.’s statements in the interview and examination were testimonial and therefore inadmissible under Crawford. The district court also ruled that the state’s Spreigl evidence was inadmissible.
state appealed from the district court’s order suppressing both T.L.K.’s
statements at MCRC and the Spreigl evidence. On May 24, 2005, this court reversed the
suppression of T.L.K.’s examination statements and affirmed the suppression of
the state’s Spreigl evidence. State
v. Krasky, 696 N.W.2d 816, 820–21 (
Both Bobadilla and Scacchetti determine whether statements
made by three-year-old victims of sexual abuse are testimonial by considering
factors articulated in State v. Wright,
701 N.W.2d 802, 812-13 (Minn. 2005), and applying the overall principle that a
“substantial purpose” of the testimonial statement is “producing evidence for
trial.” Bobadilla, 709 N.W.2d at 252; see
Scacchetti, 711 N.W.2d at 513. But after this case was remanded, Wright was vacated by the United States
Supreme Court and remanded for reconsideration in light of Davis v. Washington, 126 S. Ct. 2266
(2006). Wright v.
Did the district court err in ruling that evidence of T.L.K.’s statements during the interview and examination at MCRC is inadmissible?
from a pretrial order suppressing evidence, the state “must clearly and
unequivocally show both that the trial court’s order will have a ‘critical
impact’ on the state’s ability to prosecute the defendant successfully and that
the order constituted error.” State v. Scott, 584 N.W.2d 412, 416 (
I. Scacchetti & Bobadilla
In Scacchetti, the supreme court held that a statement made by a
three-year-old girl to a pediatric nurse practitioner at MCRC was not
testimonial and was therefore admissible as against a Confrontation Clause
challenge. 711 N.W.2d at 510. Scacchetti involved a mother who
suspected her boyfriend of sexually abusing her three-year-old daughter.
The Scacchetti court held that the MCRC nurse practitioner was not a government actor and that because the police did
not arrange and were not present during the interview, the nurse practitioner
was not acting in concert with the government.
Here, the nurse practitioner who interviewed T.L.K. did so at the request of the child protection worker and the investigating officer, Detective Manuel. These two “government officers” had determined that the interview was “the best way to proceed with the investigation.” The child protection worker monitored the interview, a videotape was provided to Detective Manuel who reviewed it shortly thereafter, and the prosecution followed almost immediately. We conclude that the nurse practitioner was at least “acting in concert with” the government in conducting the interview. There was no identified medical reason for the interview, and there was no imminent threat to the safety or welfare of T.L.K., who had been in foster care for two months.
In Bobadilla, the Minnesota Supreme Court held that statements made by
a three-year-old victim of sexual abuse to a child-protection worker were not
testimonial, despite inquiries regarding what wrongdoing had occurred and
police involvement in arranging the interview – that neither the
child-protection worker nor the three-year-old victim was acting to preserve
testimony for trial. 709 N.W.2d at
255-56. The child-protection worker
interviewed the victim at a police station five days after the victim’s mother
brought him to the emergency room on suspicion that the child recently had been
This case is distinguishable from Bobadilla. At the time T.L.K. was brought to MCRC for the interview, the events under investigation were at least two years old, and T.L.K. had been removed from Krasky’s home. There is no evidence of any ongoing concern, arising from the past abuse, for the child’s safety or welfare. This case is a police investigation of a crime, without evidence that the interview was prompted or affected by a medical or protective aim.
the supreme court remanded this appeal for reconsideration in light of Scacchetti and Bobadilla, the United States Supreme Court has since further shaped
the law of the case, elaborating on Crawford,
in another seminal Confrontation Clause opinion.
A. Davis & Wright
court in Wright determined that
statements made to police by a domestic-violence victim and her sister in a
field investigation shortly after the offense were non-testimonial. 701 N.W.2d at 814. The court held that such statements should be
analyzed on a case-by-case basis taking into account eight considerations. Id.
at 812. The court expressed concern that
Crawford might be read to categorize
“virtually every out-of-court statement made by a declarant to a police officer
States Supreme Court in
Both Scacchetti and Bobadilla cite Wright’s
list of eight relevant considerations and study competing interview
purposes. Scacchetti, 711 N.W.2d at 513-15; Bobadilla, 709 N.W.2d at 250-55.
Neither opinion reflects the more direct approach of Davis, which examines only whether
police are seeking information about past events that may relate to a future
prosecution and that is not sought for a purpose of rendering emergency
assistance. See Davis, 126 S. Ct. at 2273-74 (holding that statements in
response 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”) (footnote omitted). Thus, we must assess the impact of
B. Davis & Bobadilla
In Bobadilla, the supreme court, after citing
the eight considerations listed in Wright,
noted that the declarant’s purpose in speaking and the government officer’s
purpose in questioning were “the central considerations.” 709 N.W.2d at 250. The court examined the government
questioner’s prospective aims and, drawing from Wright and Crawford,
considered that the purpose of producing evidence for a later trial was
determinative only if this explained the interview “to a substantial degree.”
of purposes, either immediate or investigative, is uncomplicated—“a much easier
In Bobadilla the supreme court held that a statement made by a three-year-old child to a child protection worker in a “risk assessment interview” was not testimonial. 709 N.W.2d at 256-57. The court recognized a child-protection purpose despite evidence that the interview was conducted at the law enforcement center, under the observation of a police officer, after the police investigation had begun, and after the occurrence of abuse had been confirmed by a hospital physician. 709 N.W.2d at 246-47, 255.
The Bobadilla court noted the statutory
scheme for child-abuse reporting, the purpose of which is “to protect the
health and welfare of children.”
In addition, in light of the analysis in Davis, the non-criminal purpose inherent in child-abuse reporting is not significant to the Confrontation Clause analysis when the child’s health and welfare are no longer at risk and the nature of the interview is an “investigation into possibly criminal past conduct,” 126 S. Ct. at 2278, an investigation into past events—and the overriding purpose under Davis, for Confrontation Clause purposes, is to obtain evidence for a criminal prosecution.
C. Davis & Krasky
This case is more
heavily affected by the holding of
We recognize that the
United States Supreme Court in Crawford
and Davis has dealt only with
interviews of adults, a context in which the expectations of the declarant, as
well as the mission of the government interviewer, may be relevant. But the Minnesota Supreme Court, now
However, in Wright we rejected an approach that did not consider both the perspective of the government questioner and the perspective of the declarant. We do not think that an approach that makes the declarant’s perspective dispositive gives adequate consideration to Crawford’s fear of governmental abuses.
Bobadilla, 709 N.W.2d at 252 n.3 (citations omitted).
We recognize also that the United States Supreme Court has not dealt with interviews by medical staff, such as the nurse practitioner in this case. But to fully consider the role of this interviewer, we must take into account that the interview was arranged by a police detective, as well as a child-protection worker, to further a criminal investigation of the child’s accusation. As the police report states, these two government officers had “decided that [the MCRC interview was] the best way to proceed with the investigation.” After preliminary questions regarding identifications, truth-telling, and terminology relevant to sexual acts, the nurse practitioner immediately turned T.L.K.’s attention to the topic of appellant’s alleged criminal acts.
discussed earlier, because the nurse practitioner was not a government
employee, “we must determine whether [she] was acting in concert with or as an
agent of the government.” Scacchetti, 711 N.W.2d at 514. Although medical staff will in many cases not
be acting in concert with, or as agents of, the government, even in
interviewing children about suspected child abuse, we have concluded that the
nurse practitioner at MCRC was at least acting in concert with the government
in this case. In Scacchetti, a nurse practitioner at MCRC was held not to be “acting
in concert with or as an agent of the government” because police were not
involved in organizing the interview and were not present during the interview,
which occurred at the hospital rather than a law enforcement center.
Supreme Court opinions in Crawford
and Davis suggest a broad reading of
the term “testimonial” statements even in this context of interviews of
children conducted by medical staff. The
Based on the supreme
court’s opinions in Scacchetti and Bobadilla, as affected by the United
States Supreme Court’s recent decision in
unquestionably, a unique public interest in support of criminal prosecution of
child abusers. But we may not, as the Supreme Court noted in
We also recognize the
problem of child-abuse perpetrators intimidating their young victims. But as the Supreme Court stated in
The district court did not clearly err in ruling that statements made by T.L.K. during her interview at MCRC were testimonial and therefore inadmissible as against a Confrontation Clause challenge.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
The supreme court quoted Crawford’s
statement that “[i]nvolvement of government officers in the production of
testimony with an eye toward trial presents unique potential for prosecutorial
abuse.” Scacchetti, 711 N.W.2d at 514 (quoting Crawford, 541
 The state has not suggested that ex parte interviews of children serve their best interests in a fashion constituting cause to limit Confrontation Clause rights. Similarly, we are unable to locate any authority to establish such a doctrine. But see Geske v. Marcolina, 642 N.W.2d 62, 68-70 (Minn. App. 2002) (holding that child’s best interests in being spared a specific harm serve as a compelling state interest supporting a narrowly tailored prior restraint of speech.)