This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1910

 

 

State of Minnesota,

Respondent,

 

vs.

 

Angelo Mancini,

Appellant.

 

 

Filed August 8, 2006

Affirmed
Forsberg, Judge*

 

Ramsey County District Court

File No. K0-04-3070

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Susan Gaertner, Ramsey County Attorney, Jeanne Schleh, Assistant County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)

 

Paul W. Rogosheske, Thuet, Pugh, Rogosheske, & Atkins, LTD., 222 Grand Avenue West, Suite 100, St. Paul, MN  55075 (for appellant)

 

            Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Forsberg, Judge.

U N P U B L I S H E D   O P I N I O N

FORSBERG, Judge

            On appeal from his conviction of third-degree assault, appellant argues that the district court abused its discretion and violated his right to confrontation by allowing the victim’s friend, the responding officer, and medical personnel to testify as to the victim’s statements identifying appellant as her assailant, when the victim did not testify at trial.  Appellant also contends that because the victim did not sign an authorization and consent for the release of her medical records, the district court’s admission of the medical records and medical testimony concerning the victim’s injuries was a violation of Minn. Stat. § 595.02, subd. 1(d) (2004).  We affirm.    

FACTS

            On August 5, 2004, Officers Robert Buth and Trygve Sand were dispatched to an address in St. Paul to investigate a domestic disturbance.  As the officers approached the location, they observed a black car pull over to the curb and the driver put her hand out the window as a signal to the police.  The officers pulled up alongside the vehicle, and the driver informed the officers that she was taking her passenger to the hospital.  The officers noticed a significant amount of blood on the passenger’s face and shirt.  Further investigation revealed that the passenger’s name was D.M. and that she had been involved in the domestic disturbance that the officers had been dispatched to investigate.  D.M. informed the officers that she had been assaulted by her estranged husband, appellant Angelo Mancini.  D.M. was subsequently taken to the hospital and treated for her injuries.

            After questioning D.M. about the alleged assault, the officers proceeded to appellant’s house where appellant was arrested and charged with third-degree assault in violation of Minn. Stat. § 609.223, subd. 1 (2004).  Appellant pleaded not guilty, and a jury trial was held on the matter.

            Prior to trial, D.M. asserted her Fifth Amendment right not to testify and also stated that appellant had not coerced her to assert her right not to testify.  Because the district court found D.M. unavailable to testify, the state made an offer of proof under the excited utterance and medical diagnosis exceptions to the hearsay rule of four out-of-court statements of the victim that were sought to be offered at trial.  The four statements made by D.M. included those to her friend, Dawn Reeverts; the responding police officer; her treating nurse; and her treating physician.  Appellant objected, citing his Sixth Amendment right to confront witnesses under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004).  The district court deferred a decision on the statements until appropriate foundation had been laid at trial. 

            At trial, Reeverts testified that during the afternoon of August 5, 2004, she heard a car horn in her driveway and that when she looked out she saw D.M. sitting in her car.  Reeverts testified that because D.M. did not get out of the car, she went outside; D.M. was crying and had a bloody nose.  Over defense objection, Reeverts testified that D.M. told her that D.M. and appellant had had a fight.   

            Officer Buth also testified at trial.  Over defense objection, Officer Buth was allowed to testify that, according to D.M., she had left work on her break to go to appellant’s house to pick up some money that was part of the parties’ divorce settlement.  Officer Buth also testified that, according to D.M., as soon as she entered the house, the parties began to argue, which immediately turned into a physical altercation.  Officer Buth testified that when he asked if there were punches, D.M. replied, “Yes, and kicks too.”  Officer Buth further testified that when asked how many times she was punched and kicked, D.M. estimated “a hundred times.”   

            Dr. Michael Towey, the emergency room physician who treated appellant’s injuries, testified that D.M. complained of pain primarily on the right side of her face, jaw, and neck.  Dr. Towey also testified that D.M. was unable to close her jaw completely on the right side, she had swelling and tenderness over the angle of her right jaw, and she had swelling above her right eye and over her nose.  Dr. Towey further testified that for purposes of medical diagnosis or treatment, he asked D.M. what caused her injuries.  Over defense objection, Dr. Towey was allowed to testify that he was told by D.M. that her injuries were caused when appellant punched and kicked her in the face.       

            Kimberly Streeter, the emergency room nurse who assisted in the treatment of D.M.’s injuries, and Dr. Joseph Baraga, the hospital’s radiologist, also testified as to the nature and extent of D.M.’s injuries.  Dr. Baraga testified that D.M. had a bilateral nasal bone fracture and suffered from chronic changes in her nose.  Streeter testified that when D.M. arrived at the hospital, she observed that D.M. was covered in blood, her nose was shifted to the right, and her face was swollen and bruised.  Streeter also testified that D.M. told her that she had been assaulted.  But Streeter was unable to testify as to D.M.’s hearsay statement as to the identity of her assailant because it was not pertinent to the function of an emergency room nurse.   

            Appellant testified at trial and asserted a claim of self defense.  Appellant testified that on the day of the alleged assault, he was taking medication to alleviate the pain from a motorcycle accident that occurred about a week earlier.  According to appellant, he was in bed sleeping when he was awakened by D.M. who was on top of him, striking him with something in her right hand.  Appellant testified that D.M. was making statements concerning “hiding bitches in [his] house” and attempting to stab him with a sharp object.  Appellant claimed that in order to defend himself, he hit D.M. in the face, causing her to fall on the floor.  Appellant also claimed that D.M. wanted to fight some more, but he told her to leave and pushed her out of the bedroom to get her out of the house.  Appellant further claimed that he only struck D.M. once.    

            The jury found appellant guilty of third-degree assault and appellant received a sentence of one year and one day, execution of which was stayed.  Appellant subsequently filed this appeal.  In his reply brief, appellant argues that because D.M. did not sign an authorization and consent for the release of her medical records, the district court’s admission of those records and medical testimony concerning her injuries was a violation of Minn. Stat. § 595.02, subd. 1(d) (2004).  Shortly thereafter, the state moved to strike appellant’s reply brief on the ground that it raises a new issue.

            An order by this court was issued on March 3, 2006, deferring the decision on the state’s motion to strike to the panel.  The order also permitted the state to file a reply brief addressing the new issues raised in appellant’s reply brief.  On March 23, 2006, a stipulation to correct the record was filed.  The stipulation, signed by both counsel for the state and counsel for appellant, provides that:  “Although previously unknown to appellate counsel herein, further examination of the records of trial counsel reveal that D.M., the alleged victim of the crime for which appellant was convicted and now appeals, signed two medical releases for law enforcement on August 6, 2004 in connection with this case.”

D E C I S I O N

I.

            Appellant argues that his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution were violated when the district court allowed the victim’s friend, the responding officer, and the medical personnel to testify as to D.M.’s statements identifying appellant as her assailant, when D.M. did not testify at trial.  “This court reviews de novo the issue of whether hearsay statements violate the Confrontation Clause.”  State v. Ahmed, 708 N.W.2d 574, 580, (Minn. App. 2006).

            Under Ohio v. Roberts, the Supreme Court held that out-of-court statements by unavailable witnesses could be admitted without violating the Confrontation Clause only if the statements bear “adequate indicia of reliability.”  448 U.S. 56, 66, 100 S. Ct. 2531, 2539 (1980) (quotation omitted).  This test is met if the hearsay “falls within a firmly rooted hearsay exception” or by “a showing of particularized guarantees of trustworthiness.”  Id. In Crawford v. Washington, the Supreme Court changed this test, holding that testimonial statements by witnesses who do not testify at trial could not be admitted unless the witness is unavailable to testify and the defendant had a prior opportunity to cross-examine the witness.  541 U.S. 36, 53-54, 124 S. Ct. 1354, 1365 (2004).  The Crawford test applies to testimonial statements, but the Roberts test still applies to nontestimonial statements.  State v. Martin, 695 N.W.2d 578, 584-86 (Minn. 2005).

            Appellant argues that D.M.’s statements to her friend, the responding officer, and the medical personnel should have been excluded because the statements were testimonial statements.  In Crawford, the Court did not specifically identify which types of statements are “testimonial,” but defined “testimony” as “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.”  541 U.S. at 51, 124 S. Ct. at 1364 (citing [Webster’s Dictionary]).  Further, “[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.”  Id. The Court then listed three “formulations of this core class of ‘testimonial statements’”:  (1) “ex parte in-court testimony or its functional equivalent--that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially”; (2) “extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions”; and (3) “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”  Id. at 51-52, 124 S. Ct. at 1364.

            The nature of testimonial statements was revisited by the Supreme Court in Davis v. Washington, __ S. Ct. __ (2006).  In Davis, the Court stated:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.  They 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.

 

Id. at ___.  Although the Court held that the domestic battery victim’s written statements in an affidavit given to the investigating police officer were testimonial, the Court noted that in domestic disputes, the investigating officers “‘need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.’  Such exigencies may often mean that ‘initial inquiries’ produce nontestimonial statements.”  Id. at __ (quotation omitted).       

            Our supreme court addressed the issue of what types of statements are testimonial in State v. Wright, 701 N.W.2d 802 (Minn. 2005), holding that a 911 call reporting an assault and a police interview with the assault victims conducted soon after the incident, were both nontestimonial.  Id. at 804, 815.  But the court explained that courts should determine whether statements are testimonial on a case-by-case basis, especially given the uncertainty surrounding Confrontation Clause issues following Crawford. Id. at 812.  In making the determination that the statements at issue in Wright were not testimonial, the supreme court articulated eight relevant considerations:  (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.  Id. at 812-13.  The second and seventh factors—the purpose of the statements from the perspective of the declarant and from the perspective of the government questioner—were the central considerations.  See id. at 811, 813-14.

            This court has also recently addressed the issue of testimonial statements.  In Ahmed, this court held that the victim’s statement to the passenger in his vehicle identifying the defendant as the driver of the vehicle that chased and ultimately hit the victim’s vehicle did not constitute testimonial hearsay for Confrontation Clause purposes because the victim’s statement was “not ex parte in-court testimony or its functional equivalent or formalized testimonial materials,” and “[a] reasonable, objective witness in [the victim’s] position would not be thinking about the possibility of a later trial, but would be focused on avoiding the chasing vehicle.”  708 N.W.2d at 581.  Similarly, in State v. Lasnetski, this court held that a wife’s statements to the police while she was on the phone with her husband trying to convince him not to commit suicide were nontestimonial, because “[g]iven the stress of the moment, a reasonable, objective witness would not even contemplate the possibility of a later trial, but would be solely engaged in preventing a suicide.”  696 N.W.2d 387, 392-93 (Minn. App. 2005); see also State v. Krasky, 696 N.W.2d 816, 819-20 (Minn. App. 2005) (holding that a seven-year-old’s statements to a nurse practitioner about her father’s alleged abuse of her were nontestimonial because there was no evidence that the child was aware that the statements would later be used at a trial), review granted (Minn. Aug. 16, 2005).

            Here, D.M. was deemed unavailable to testify after she asserted her Fifth Amendment rights out of fear of being prosecuted for something related to the alleged assault.  But in light of the existing case law on the issue, and the factors set forth in Wright, we conclude that D.M.’s statements to the responding officer were not testimonial.  It was Reeverts, rather than the officers, who initiated the conversation, and it appears that the contact was initiated for purposes of assisting D.M. with her injuries and informing the officers of the situation.  The record reflects that D.M. was either in her friend’s car or had just stepped outside of the car when she was talking with the responding officer and that the conversation was informal.  The record also reflects that D.M. was “crying, mad, [and] upset.”  Based on D.M.’s emotional state and the informal nature of the conversation with the officer, we conclude that a reasonable, objective witness would not contemplate that the statements to the responding officer would be used in a later trial.

            Similarly, the statements D.M. made to Reeverts were not testimonial.  The record reflects that the statements were made shortly after the assault occurred, D.M. was in a very emotional state and in a lot of pain, and D.M. made the statements to her friend.  The statement was essentially a casual remark to a friend, who was more concerned about the situation than whether the statement would be used at trial.  See Ahmed,708 N.W.2d at 581.

            Finally, the statements D.M. made to the medical personnel were made for purposes of hospital procedure.  The statements were made in an informal fashion during the administration of medical assistance.  The record also reflects that D.M. was still emotional and in a lot of pain while she was being treated, providing little indication that D.M. contemplated that the statements would be used in a later trial.  See Krasky, 696 N.W.2d at 819-20.  Accordingly, D.M.’s statements to Reeverts, the responding officer, and the medical personnel were not testimonial.  Because the statements were not testimonial and were properly admitted under the excited utterance and medical diagnosis exceptions to the hearsay rule, appellant is not entitled to a new trial.

II.

            Appellant also contends that because D.M. did not sign an authorization and consent for the release of her medical records, the admission of the records and medical testimony concerning her injuries was a violation of Minn. Stat. § 595.02, subd. 1(d) (2004).  Appellant argues that without the evidence regarding D.M.’s injuries, the state cannot prove an element of the offense—that D.M. suffered substantial bodily harm. 

            Minn. Stat. § 595.02, subd. 1(d), provides in relevant part that “[a] licensed physician . . . shall not, without the consent of the patient, be allowed to disclose any information or any opinion based thereon which the professional acquired in attending the patient in a professional capacity, and which was necessary to enable the professional to act in that capacity . . . .”  Here, the record reflects that shortly after appellant’s reply brief was filed, a stipulation signed by both parties was filed with this court.  The stipulation provides that “[a]lthough previously unknown to appellate counsel herein, further examination of the records of trial counsel reveal that D.M., the alleged victim of the crime for which appellant was convicted and now appeals, signed two medical releases for law enforcement on August 6, 2004 in connection with this case.”  Therefore, appellant’s argument concerning the erroneous admission of medical records and medical testimony is without merit because D.M. did, in fact, sign medical releases. 

            We also note that notwithstanding the stipulation, appellant has no standing to invoke the privilege under Minn. Stat. § 595.02, subd. 1(d).  In State v. Gillespie, 710 N.W.2d 289 (Minn. App. 2006), review denied (Minn. May 16, 2006), this court stated that the physician-patient privilege is personal and may not be invoked by a criminal defendant to shield himself from prosecution because allowing a criminal defendant to exclude relevant medical evidence by asserting the privilege of a victim who has not expressed any concerns about confidentiality would convert the privilege into a tool for shielding criminal activity from prosecution and would result in a miscarriage of justice.  Consequently, appellant has no standing to invoke the privilege under Minn. Stat. § 595.02, subd. 1(d), because the physician-patient privilege created by the statue is designed to protect D.M., the patient, not appellant.  See id.  Because the argument raised in appellant’s reply brief fails, we need not address the state’s motion to strike appellant’s reply brief.

            Affirmed.