STATE OF MINNESOTA
IN SUPREME COURT
Court of Appeals
no part, Gildea, J.
State of Minnesota,
Filed: March 30, 2006
of Appellate Courts
S Y L L A B U S
made by a three-and-one-half-year-old child during a medical assessment by a
nurse practitioner without law enforcement or other government involvement are
not testimonial and admission of the statements at trial did not violate
appellant’s Sixth Amendment right to confront the witnesses against him.
considered, and decided by the court en banc.
O P I N I O N
Appellant Anthony Phillip
Scacchetti was convicted of first-degree criminal sexual conduct, malicious
punishment of a child, and third-degree assault against his girlfriend’s three-and-one-half-year-old
daughter, R.J. At trial, the court
determined that the child victim was incompetent to testify and, as a result,
the state was allowed to introduce into evidence statements the victim made
during medical assessments conducted by a pediatric nurse practitioner for Midwest
Children’s Resource Center (MCRC).
Scacchetti appealed his conviction, and the court of appeals
affirmed. On appeal to this court, we
remanded to the court of appeals for a determination of whether the statements the
victim made to the pediatric nurse practitioner during the assessments were admissible
under Crawford v. Washington, 541
U.S. 36 (2004). On remand, the court of
appeals held that the statements were not testimonial under Crawford because no reasonable
three-year-old would anticipate the use of the statements in a future trial and
again affirmed. Because we conclude that
the statements made by the victim to the pediatric nurse practitioner during the
assessments are not testimonial for the purposes of Crawford, we affirm.
May 2002, Scacchetti began living with his girlfriend, K.J., and her daughter, R.J. Before Scacchetti moved in, K.J.’s mother or
K.J.’s ex-boyfriend cared for R.J. while K.J. was at work. After Scacchetti had lived with K.J. for a
few weeks, Scacchetti began caring for R.J. while K.J. was working.
Soon thereafter, K.J.
started noticing physical changes in R.J.
On one occasion, R.J. told K.J. that Scacchetti had spanked her with a
belt, which Scacchetti admitted doing. Shortly
after that, K.J. noticed R.J. had marks on her face, which Scacchetti claimed
were from R.J. falling down the stairs. R.J.
could not explain how the injuries occurred.
During May and June of 2002, K.J. noticed that R.J. had become clingy to
her and distant toward Scacchetti. In
fact, R.J. began to tell K.J. she did not want to be left alone with
June 24, 2002, K.J. returned from work to find that R.J.’s body had multiple
bruises and burn marks. In addition, her
face and one ear were swollen.
Scacchetti told K.J. that R.J. had fallen in the bathtub. K.J. also found a number of bloody items,
including underwear and a pillowcase belonging to R.J., and a washcloth. R.J. could not explain what had happened to
her. K.J. did not go to work the next
two days because she did not want to leave R.J. alone with Scacchetti.
June 26, 2002, K.J. brought R.J. to a Saint
Paul woman’s shelter, where shelter employees
suggested K.J. take R.J. to the hospital to be examined. On June 27, K.J. took R.J. to Minneapolis Children’s
Hospital, where R.J. told K.J. that Scacchetti had touched her “down there” and
that it hurt when she urinated. The
doctor who examined R.J. was concerned that her genital exam had indicated an
abnormal hymen and called a pediatric nurse practitioner, Laurel Edinburgh,
from MCRC to examine R.J.
MCRC is a clinic that assesses
children for possible physical abuse, sexual abuse, and neglect. Their assessment consists of an interview and
physical examination of the child. After
an assessment, Edinburgh
links the family with appropriate services.
testified that she has seen over 500 patients and has testified in court about
15 to 20 times. She uses a particular
protocol when assessing children, which she used when assessing R.J. Dr. Carolyn Levitt, the founder of MCRC,
testified at trial regarding the protocol Edinburgh
used. Dr. Levitt explained that the
protocol is “pretty much based on what I would be doing if I were evaluating a
child * * * who had abdominal pain and appendicitis, but it’s a medical
protocol and it specializes in getting specific details from the child.” According to Dr. Levitt, the protocol
consists of a verbal interview, an external exam, and a colposcopic exam of the
child’s genitalia. In explaining why the
assessments are videotaped, Levitt stated, “There are many children seen at our
center who have videotaped interviews so that the evaluations are then
reviewed. The videotape is reviewed by
me, the videotape colposcopic examination is reviewed by me.”
Edinburgh assessed R.J. two
times. At the first assessment, which
took place at the hospital on June 27 and was not videotaped, Edinburgh first met with K.J. to gather background
information and then met with R.J. to ask questions regarding her
injuries. She then did a physical exam,
during which K.J. was present. While
examining R.J.’s anal and vaginal area, Edinburgh
asked R.J., “did anything ever happen to this area right here?” to which R.J.
responded “yes.” Edinburgh asked “What touched there?” and R.J.
responded “Tony’s pee-pee.” As part of
the exam, Edinburgh
found an oblong-shaped bruise next to R.J.’s anal opening.
Edinburgh conducted a follow-up assessment
of R.J. the next day. That assessment
took place in the MCRC office in Saint
office has a typical doctor’s office layout, with a waiting area and two exam
rooms. The assessment took place in one
of the exam rooms and was videotaped. At
one point during the assessment, R.J. became distraught and asked for her
Edinburgh’s follow-up assessment followed
the standard protocol. Incidentally, during
the assessment, R.J. described how Scacchetti had slapped her on her cheek and spanked
her with a big belt and a brush. After
further questioning, R.J. indicated that Scacchetti had touched her anus (where
she “goes poop”) with his hands. R.J.
stated, “he put his hands right in there” while pointing up with one of her
fingers. The following questions and
Q: Did Tony touch here with
Q: Yeah. What did his pee-pee do there?
A: Him – when he was mad in
Q: When he was mad there?
A: Yeah. When he was mad at me.
Q: When he was mad at you?
Q: What did he do with his
A: I don’t know.
Q: You don’t know?
A: Him put in the corner.
Q: What happened to your
clothes? What did he do with your
A: He take them off.
Q: He took them off?
Q: Okay. What did Tony do with his clothes?
A: Um, he took them – his
Q: He took his off too?
The court conducted a
hearing to determine whether R.J. was competent to testify. The hearing took place with the judge in
normal attire. During the hearing, R.J.
was unwilling to orally answer questions asked of her. As a result, the court found that R.J. was
incompetent to testify and was therefore unavailable. Because R.J. was unavailable, Scacchetti had
no opportunity to cross-examine her.
Edinburgh testified at trial
regarding both of her assessments of R.J. and statements R.J. made during those
assessments, and the videotape of the second assessment was shown to the jury. She also testified that R.J., as a three-and-one-half-year-old,
had sexual knowledge that was beyond her age, and that based on Edinburgh’s experience R.J.
was both physically and sexually abused. In explaining the basis for that conclusion,
use all of my knowledge of how children disclose, out of the statements that
they made during [the] interview, out of what a parent tells me about a medical
history, about any histories of trauma, and my physical exam, and I put those,
all of those sort of factors go together when I’m making a diagnosis that a
child was sexually abused.
Scacchetti testified and admitted spanking R.J. with a
belt, but denied sexually abusing her.
On December 12, 2002, a jury
found Scacchetti guilty of criminal sexual conduct in the first degree in
violation of Minn. Stat. § 609.342, subd. 1 (2004), malicious punishment of a
child in violation of Minn. Stat. § 609.377, subd. 4 (2004), and assault in the
third degree in violation of Minn. Stat. § 609.223, subd. 3 (2004). Scacchetti appealed his conviction and the
court of appeals affirmed on June 1, 2004.
State v. Scacchetti, No.
A03-301, 2004 WL 1191666 (Minn.
App. June 1, 2004). Crawford was decided while Scacchetti’s appeal was pending. The court of appeals did not consider the Crawford decision when it affirmed
Scacchetti’s conviction. Scacchetti
petitioned this court for review.
We granted the petition and
remanded to the court of appeals for reconsideration in light of Crawford. On remand, the court of appeals affirmed,
determining that the statements R.J. made to Edinburgh were not testimonial for purposes
of Crawford. State
v. Scacchetti, 690 N.W.2d 393, 397 (Minn.
App. 2005). Scacchetti again petitioned
for review and again we granted the petition.
The Sixth Amendment to the
United States Constitution ensures a criminal defendant’s right “to be confronted with the witnesses against him.” Until Crawford
was decided, Confrontation Clause issues were determined according to Ohio v. Roberts, 448 U.S. 56 (1980). Under Roberts,
an unavailable witness’s statements were admissible if the statements bore adequate
indicia of reliability. Id.
at 66. The evidence was reliable if it
fell within a firmly rooted hearsay exception or bore “particularized guarantees
of trustworthiness.” Id. In Crawford,the Supreme Court rejected the Roberts test, explaining that “the principal
evil at which the Confrontation Clause was directed was the civil-law mode of
criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.” Crawford, 541 U.S. at 50. Therefore, when a witness is unavailable, testimonial statements made by
the witness are inadmissible at the defendant’s trial unless the defendant had
an opportunity to cross-examine the witness.
Id. at 53-54. The rule “applies to ‘witnesses’ against the
accused—in other words, those who ‘bear testimony.’” Id. at 51. The Court explained that testimony is typically “[a] solemn
declaration or affirmation made for the purpose of establishing or proving some
the determination of whether a statement violates the Confrontation Clause is
dependent upon whether that statement is testimonial.
first post-Crawford Confrontation Clause
case was State v. Wright, 701 N.W.2d
802 (Minn. 2005), in which we held that statements made to a 911 operator and
statements made to police officers during a field investigation were not testimonial. In doing so, we concluded that statements the Supreme Court
has not explicitly defined as testimonial “are best analyzed in terms of the
particular facts and circumstances under which they are made in order to
determine their testimonial or nontestimonial nature.” Id. at 814.
forth eight considerations relevant to determining whether a declarant’s statements
(1) whether the declarant was a victim
or an observer; (2) the declarant’s purpose in speaking with the officer (e.g.,
to obtain assistance); (3) whether it was the police or the declarant who
initiated the conversation; (4) the location where the statements were made
(e.g., the declarant’s home, a squad car, or the police station); (5) the
declarant’s emotional state when the statements were made; (6) the level of
formality and structure of the conversation between the officer and declarant;
(7) the officers’ purpose in speaking with the declarant (e.g., to secure the scene,
determine what happened, or collect evidence); and (8) if and how the
statements were recorded.
In State v. Bobadilla, we again applied the eight factors considered
in Wright for determining whether a
declarant’s statement is testimonial. 709 N.W.2d 243, 250 (Minn. 2006). We clarified that, of the factors, the central
considerations are “the purpose of the statements from the perspective
of the declarant and from the perspective of the government questioner,” in other words, “whether either a
declarant or government questioner is acting, to a substantial degree, in order
to produce a statement for trial.” Id.
at 250, 252. We noted that the other six factors are probative of
those two. Id.
we held that statements made by a three-year-old child sexual abuse victim in
an interview with a county child protection worker with a law enforcement
officer present in accordance with Minn. Stat. § 626.556, subd. 10(a) (2004),
were not testimonial. Bobadilla,709 N.W.2d at 257. The
victim in that case informed his mother that his uncle had touched him
at 246. The mother took the victim to the hospital,
where law enforcement was contacted. Id. The
interview took place five days later and, as noted above, was conducted by the
child protection worker in the presence of a police officer.
Id. at 247. Because the child was determined to be incompetent
to testify at trial, the child’s statements were admitted at trial through the
testimony of his mother and the child protection worker and through the
videotape of the interview. Id. at 248. We concluded that the child protection worker was not acting
substantially to preserve testimony for trial, but was conducting the interview
for the health and welfare of the child. Id. at 255. We further concluded that the three-year-old victim
was not acting to preserve testimony for trial because children of that age are
“simply unable to understand the legal system and the consequences of
statements made during the legal process.”
Id. at 255-56. On that basis, we held that
statements were not testimonial. Id.
we stated that the intent of the questioner, the seventh Wright factor, is one of the most important factors in determining
whether statements are testimonial. Id. at 250. We also consider the identity of the
questioner to be an indication of the questioner’s intent. As the Supreme Court stated in Crawford, “Involvement of government officers in the production of
testimony with an eye toward trial presents unique potential for prosecutorial
abuse.” Crawford, 541 U.S.
at 56 n.7 (emphasis added). Therefore,
the fact that the questioner is a government officer is probative of the
questioner’s purpose for eliciting the statements in question. With respect to statements made to
nongovernment questioners, we must determine whether the questioner was acting
in concert with or as an agent of the government.
We begin our analysis by
examining the identity of and the purpose of the questioner. It is significant in this case that no
government actor initiated, participated, or was involved in any way with the
assessments of R.J. that resulted in the statements at issue. In Bobadilla,
even though police were involved in organizing the child’s interview, were
present at the interview, the interview was conducted at the police station,
and the interviewer was a government questioner, we held that the child’s
statements were not testimonial. 709
N.W.2d at 246-47, 256. Unlike the questioner in Bobadilla,
the record here indicates that Edinburgh
is not a government questioner. Edinburgh is a nurse
practitioner employed by MCRC, which, as Dr. Levitt testified at trial, is a
department of Children’s Hospital. Also,
unlike Bobadilla, R.J.’s statements
were made to Edinburgh
at the hospital and in a doctor’s office, not at a law enforcement center. Further,
the police were not involved in organizing R.J.’s assessments and were not present
for and did not participate in the assessments.
we conclude, based on the record presented, that Edinburgh was not a government questioner and
that she was not acting in concert with or as an agent of the government. Having concluded that neither the police or
any government actor, nor anyone acting in concert with or as an agent of the
government was involved in R.J.’s assessments, we further conclude that R.J.’s
statements to Edinburgh
were not testimonial.
Even if we had concluded
that Edinburgh was acting in concert with or as
an agent of the government, our conclusion that R.J.’s statements to Edinburgh are not
testimonial would not change. The record
here indicates that Edinburgh’s purpose in interviewing and
examining R.J. was to assess her medical condition. Both Edinburgh and Dr. Levitt testified that
their purpose in evaluating children such as R.J. is to determine whether the
child has been abused and, if necessary, to connect the child and family to
appropriate services. There is no
evidence or other testimony in the record to the contrary. The fact that MCRC generally does not have ongoing contact
with the child after the assessment does not minimize the medical purpose for
which the assessment is conducted.
Scacchetti argues that, even
if the court focuses on the medical purpose for the assessments, the fact that
Edinburgh has testified
in past child sexual abuse cases with relative frequency indicates that she is
acting for the purpose of collecting statements for use in a later
prosecution. First, we note that
Scacchetti’s contention that Edinburgh
testifies in child sexual abuse cases with relative frequency is belied by the
only evidence in the record on this subject.
According to Edinburgh’s
testimony, she has examined over 500 patients and of those she testified in 15
to 20 cases. We do not believe, on these
facts, that testifying 15 to 20 times constitutes relatively frequent
Moreover, the mere fact that
Edinburgh may be called to testify in court regarding sexual abuse cases does
not transform the medical purpose of the assessments into a prosecutorial
purpose, nor is there any evidence that Edinburgh had a prosecutorial purpose
here. Further, in Bobadilla we specifically held that the fact that the interview of
the child may have had the secondary purpose of preserving testimony does not
make a statement testimonial if that purpose is incidental to a broader purpose
of protecting the child’s welfare. Bobadilla, 709 N.W.2d at 255. Thus, even if we were to conclude that
of R.J. had, as a secondary purpose, the preservation of testimony for trial,
R.J.’s statement would still not be testimonial. Because the broad purpose of
assessments was R.J.’s medical health, any subsequent testimony that Edinburgh was required to
give did not change her assessment purpose.
At least three other courts
have held that statements made by children are not testimonial when taken for
medical assessment purposes without the involvement of government actors. See United States v. Peneaux, 432 F.3d 882, 896 (8th Cir.
2005)(holding statements given to
pediatrician for diagnosis or treatment are “presumptively nontestimonial”); State v. Vaught, 682 N.W.2d 284, 291-92
(Neb. 2004) (finding statement made by four-year-old to emergency room physician
following sexual abuse was not testimonial); State v. Fisher, 108 P.3d 1262, 1269 (Wash. Ct. App. 2005) (holding
statement made by 29-month-old to family physician the morning after child’s
admission to the hospital was not testimonial).
At least one commentator has suggested that, in Crawford, the United States Supreme
Court implicitly took a favorable view of statements made for the purposes of
medical treatment. Robert P. Mosteller,
Crawford v. Washington: Encouraging and Ensuring the Confrontation
of Witnesses,39 U. Rich. L. Rev.
511, 600 (2005).
we also note that the first five Wright factors
support the conclusion that R.J.’s statements to
Edinburgh are not testimonial. R.J. was the victim in this case, and not a
mere observer. Given R.J.’s age at the
time Edinburgh assessed her, it is not clear
that R.J. knew or understood the purpose of the statements she made to
Edinburgh. We do know, however, that R.J. made the
statements in response to questions asked during Edinburgh’s medical assessments and that the
statements were made at a hospital and in a doctor’s office. R.J.’s mother initiated R.J.’s medical assessment
when she brought R.J. to the hospital and requested that R.J. be examined. And, like the declarants in Wright, R.J. was emotionally distraught when discussing
the alleged abuse with Edinburgh.
Finally, we note that the
sixth and eighth Wright factors do
not clearly support a conclusion one way or the other as to whether the
statements are testimonial. Although the
questions that Edinburgh
asked R.J. followed a particular protocol and were structured to elicit
responses from a young child, the questions were designed to elicit answers related
to the child’s medical health and not responses that would necessarily be
useful in prosecuting an offender. Dr.
Levitt specifically testified that the structure of the questioning is
necessary to elicit useful responses and obtain specific medical details from
the child. No evidence to the contrary
was presented. Therefore, while the
questioning was structured, we conclude that it was not structured for the purpose
of creating useful prosecutorial statements.
Similarly, although the statements R.J. made during the second assessment
were recorded by Edinburgh,
the trial record indicates only that the recording was made to allow Dr. Levitt
to review the assessment.
Taken separately or together,
the absence of government involvement in the questioning of R.J. and the Wright factors, viewed against the
backdrop of the record presented, lead us to the conclusion that the statements
R.J. made during Edinburgh’s
assessments are not testimonial. We
therefore hold that admission of the statements at trial did not offend
Scacchetti’s Sixth Amendment right to confront the witnesses against him.
GILDEA, J., not having been a member of this court at the time of the
argument and submission, took no part in the consideration or decision of this