This opinion will be unpublished and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

A06-479

 

In the Matter of the Welfare of:  A. J. A.

 

Filed August 29, 2006

Reversed and remanded

Kalitowski, Judge

 

Mower County District Court

File No. 50-J7-05-050556

 

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

 

Patrick W. Flanagan, Mower County Attorney, Jeremy Clinefelter, Assistant County Attorney, 201 First Street Northeast, Austin, MN 55912 (for appellant)

 

M. Thomas Lenway, Plunkett & Associates, Inc., 107 West Oakland Avenue, Austin, MN 55912 (for respondent A.J.A.)

 

            Considered and decided by Randall, Presiding Judge; Kalitowski, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            On appeal from an order suppressing child-victim’s statements that respondent A.J.A. touched her inappropriately, appellant State of Minnesota argues that the statements were admissible because they were not testimonial, and therefore, did not violate respondent’s right to confrontation.  We reverse and remand.

D E C I S I O N

 

On appeal 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 (Minn. 1998) (quotations omitted).  “[T]he critical impact of the suppression must be first determined before deciding whether the suppression order was made in error.”  Id. 

When analyzing critical impact, this court should first examine all the admissible evidence available to the state to determine what impact the absence of the suppressed evidence will have.  State v. Zanter, 535 N.W.2d 624, 630-31 (Minn. 1995).  “Critical impact is met when the suppression of the evidence significantly reduces the likelihood of a successful prosecution.”  In re Welfare of L.E.P., 594 N.W.2d 163, 168 (Minn. 1999).  And the Minnesota Supreme Court has held that “when a young child is found incompetent to testify and is thus unavailable the suppression of the child’s statements describing the alleged sexual abuse reduces the likelihood of a successful prosecution and meets the critical impact test.”  Id. (citing State v. Edwards, 485 N.W.2d 911, 913-14 (Minn. 1992); State v. Lanam, 459 N.W.2d 656, 659 (Minn. 1990)).

Here, other than the statements of the child-declarant, F.M.R., there is no extrinsic evidence of the alleged sexual contact and there was no corroborating eyewitness testimony to support the state’s case against respondent.  Therefore, the district court’s order suppressing F.M.R.’s statements will have a critical impact on the trial’s outcome because those statements were the prosecution’s only evidence against respondent.  Because the suppression of F.M.R.’s statements will have a critical impact on the state’s ability to prosecute, we next review the district court’s order for error. 

“[W]hen reviewing a pre-trial order suppressing evidence where the facts are not in dispute and the trial court’s decision is a question of law, the reviewing court may independently review the facts and determine, as a matter of law, whether the evidence need be suppressed.”  State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).

The United States Constitution prohibits the use in criminal prosecutions of testimonial out-of-court statements that were never subject to cross-examination.  Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 1365-66 (2004).  Under Crawford, Confrontation Clause analysis turns on whether a particular statement is “testimonial.”  Id.  If a statement is testimonial, the Confrontation Clause bars the prosecution from using the statement against a criminal defendant unless the declarant is available to testify or the defendant had a previous opportunity to cross-examine the declarant.  Id. at 50-56, 124 S. Ct. at 1363-67.  The Supreme Court has outlined that several classes of statements are testimonial, including

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[;] extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions[; and] 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 (emphasis omitted) (quotations omitted). 

To determine whether a statement is testimonial, a court must examine “whether either a declarant or government questioner is acting, to a substantial degree, in order to produce a statement for trial.”  State v. Bobadilla, 709 N.W.2d 243, 252 (Minn. 2006).  “Whether a declarant or government questioner is acting, to a substantial degree, in order to produce a statement for trial is determined by asking whether a reasonable government questioner or declarant in the relevant situation would exhibit that purpose.”  Id. at 253.  When statements are made to nongovernmental questioners, “we must determine whether the questioner was acting in concert with or as an agent of the government.”  State v. Scacchetti, 711 N.W.2d 508, 514 (Minn. 2006). 

Here, F.M.R. is unavailable to testify because the district court ruled her incompetent and respondent has not had an opportunity to cross-examine her.  Appellant challenges the district court’s suppression of F.M.R.’s statements to both her mother and to a nurse-interviewer.  Appellant argues that F.M.R.’s statements are not testimonial and are therefore admissible absent a valid hearsay objection.  We agree.

1.         Statements to mother

            On July 26, 2005, five-year-old F.M.R. was sitting with her mother, M.J.R., and father, C.L.R., watching television when F.M.R. told her mother “[s]ometimes little Tony touches me on my pee-pee.”  F.M.R. confirmed that she was talking about respondent, a 15-year-old boy who babysat her.  Further, F.M.R. said that respondent “pulls down his pants” and “pulls down her panties” and “touches her peepee softly,” while indicating to her vaginal area.  M.J.R. and C.L.R. then called law enforcement.   

            The district court, without explanation, held that the statements F.M.R. made to her mother were inadmissible because they violated respondent’s right to confrontation under Crawford.  We disagree. 

First, M.J.R. was a nongovernmental questioner, and there is no indication that she was working in concert with or as an agent of the government.  Id. Second, there is no indication that either F.M.R., as the declarant, or M.J.R., as the questioner, approached the conversation with the purpose of producing a statement for trial.  Bobadilla, 709 N.W.2d at 252.  M.J.R. did nothing to elicit the report of abuse from her daughter.  She was simply sitting on the couch when F.M.R. approached her and spontaneously informed her of respondent’s inappropriate touching.  Therefore, we conclude that the district court erred by holding that F.M.R.’s statement to her mother was testimonial. 

2.         Statements to nurse

After M.J.R. and C.L.R. called law enforcement, an officer arrived at their home.  The officer spoke with each parent in the garage and had no contact with F.M.R.  Shortly thereafter, a detective contacted M.J.R. and C.L.R. and went to their home.  He was dressed in plain clothes and had no contact with F.M.R. during his visit. 

To identify the appropriate person to examine F.M.R. under Mower County’s new policies, the detective consulted the Mower County Attorney’s Office and was advised that the examination should be handled by the Midwest Children’s Resource Center (MCRC), a specialty clinic within Minnesota Children’s Hospital that performs child abuse evaluations.  The detective then advised M.J.R. and C.L.R. to contact MCRC to arrange an examination of F.M.R.  He gave them MCRC’s contact information but left it to them to contact the center. 

            F.M.R.’s parents made an appointment and brought her to MCRC on August 1, 2005.  Margaret Carney, a registered nurse at MCRC, examined F.M.R.  On the day of the examination, Carney first met with M.J.R. and C.L.R. and received background information from them.  She then escorted F.M.R. to an examination room.  The procedure by which Carney examines child abuse victims includes a medical interview and a physical examination.  After some preliminary questioning, Carney identified F.M.R.’s terms for parts of the anatomy through use of anatomically correct pictures of both a male and a female.  Carney then asked F.M.R. if she had experienced any touches on her body that she did not like or that made her feel bad.  F.M.R. responded, “A boy touches my pee-pee.  His name is Tony.”  She said that respondent pulled down her clothes, pulled down his clothes and then “He lift his pee-pee up on my butt, up and down.”

Following the interview, Carney completed a physical examination of F.M.R. and found no evidence of trauma.  Carney then spoke with F.M.R.’s parents, giving them specific information about the girl’s disclosure and answering their questions.  Carney also reported her findings to the detective after the interview because Minnesota law requires her to immediately report when she “knows or has reason to believe a child is being neglected or physically or sexually abused.”  Minn. Stat. § 626.556, subd. 3(a)(1) (2004) (stating that medical professionals “shall immediately report” information when they suspect abuse). 

The Minnesota Supreme Court has analyzed the testimonial nature of statements made under circumstances similar to those presented here.  See Scacchetti, 711 N.W.2d at 511-14.  In Scacchetti, a three-and-one-half-year-old child’s mother noticed signs of abuse and took the child to Minneapolis Children’s Hospital, where the child’s examining doctor called a nurse practitioner from MCRC.  Id. at 511-12.  The nurse practitioner examined the child for possible physical and sexual abuse.  Id.at 512.  During the examination, the child made statements indicating that the defendant had engaged in sexual contact with her.  Id. After the child was found incompetent to testify, the nurse practitioner testified as to what the child told her during the exam.  Id. at 512.  Concluding that the nurse was not “acting in concert with or as an agent of the government” and that the nurse’s purpose in interviewing the child was to assess her medical condition, the supreme court held that the child’s statements were not testimonial.  Id. at 514-15.

Here, because Nurse Carney is a nongovernmental questioner, we must first determine whether she was working in concert with or as an agent of the government.  Id. at 514.  As was the case in Scacchetti, the nurse here was employed by MCRC, she interviewed the child in the hospital, and the police were not present for and did not participate in the interview.  Id.  Additionally, there is no indication that the detective influenced Carney’s interview or physical examination of the child.  And Carney stated that if law enforcement or child protection officers ask examiners to direct an exam in a certain way, MCRC staff rejects those suggestions because MCRC is a “free-standing medical facility,” and its staff members “do what’s medically correct for a child.” 

The district court, without the benefit of the supreme court’s opinion in Scacchetti, focused on the facts that the detective referred M.J.R. and C.L.R. to MCRC and contacted MCRC before F.M.R.’s appointment to inquire as to their procedure and protocol.  But the record indicates that the detective provided no information on the case when he contacted MCRC.  And although the detective referred F.M.R.’s parents to MCRC, he did not make the appointment for them and testified that he “left it up to them” to contact the clinic if they chose to do so. 

Because the nature of the detective’s contact and referral minimized the concerted nature of the action between MCRC and the government and because Carney expressly rejected the suggestion that police could influence her examination of her patients, we conclude that Carney was not acting as an agent of or in concert with the government.  Furthermore, even if Carney was acting in concert with or as an agent of the government, the supreme court has explained that the elicited statements may nonetheless be considered nontestimonial if the questioner was not acting with the purpose of producing a statement for trial.  See id. at 515 (reasoning that even if nurse questioner was acting in concert with government, conclusion that statements elicited were not testimonial would not change because the questioner’s purpose was to assess child’s medical condition).

Accordingly, we next examine whether Carney was, or a reasonable nurse in her situation would have been, “acting, to a substantial degree, in order to produce a statement for trial.”  Bobadilla, 709 N.W.2d at 252.  Carney testified that the primary purpose of both the interview and the exam “is to make sure that the child is medically healthy and will remain so despite their allegations of child abuse.”  The physical examination is specifically performed “to ensure the child’s health, safety [and] well-being [and to] make sure [the child has not] been exposed to sexually transmitted diseases.”  When asked whether the purpose of the examination is to prepare an individual for trial or to prepare a statement for trial, Carney answered, “No, the primary purpose is to provide the child medical care.” 

Despite Carney’s testimony otherwise, the district court concluded that MCRC “was simply a surrogate for police investigation and interview.”  Throughout its analysis, the court focused on the police referral to MCRC, finding that “the primary thrust of the referral from the standpoint of both police and parents was investigative and prosecutorial.”  We disagree. 

Both Scacchetti and Bobadilla indicate that courts should focus on the interviewer’s intent when determining whether he or she is “acting, to a substantial degree, in order to produce a statement for trial.”  Scacchetti, 711 N.W.2d at 515; Bobadilla, 709 N.W.2d at 253-55.  Even if the detective called the county attorney and referred F.M.R.’s parents to MCRC with the aim of preparing a case against respondent, the appropriate focus is not on his intent, but on Carney’s. 

Carney’s report and testimony indicate that the nurse knew that F.M.R. had been referred to MCRC by the police, but that any substantive information she received on the nature of the allegations came from F.M.R.’s parents on the day of F.M.R.’s appointment and not from the police.  Moreover, the supreme court has stated that the possibility of a questioner being called to testify does not transform the medical purpose of a questioner’s examination into a prosecutorial purpose.  Scacchetti, 711 N.W.2d at 515.  And even if a questioner intended to preserve testimony for trial, that purpose does not necessarily render statements elicited testimonial if it was secondary to a broader purpose of protecting a child’s welfare.  Bobadilla, 709 N.W.2d at 255.  On this record, we conclude that the purpose of the examination was to ensure the child’s welfare and that any purpose of preserving testimony for trial was incidental to that broader purpose. 

Moreover, it is doubtful that F.M.R. knew or understood the purpose of her statements to the MCRC nurse.  The record indicates that (1) F.M.R. had no direct contact with law enforcement; (2) before F.M.R’s appointment with Carney, M.J.R. told F.M.R. that she was “going to see a doctor and she was going to have a check up”; and (3) Carney introduced herself to F.M.R. as a nurse who was going to “talk to her for a little bit and then do a checkup on her body.”  Given the circumstances under which the interview and examination were conducted, we cannot say that a reasonable five-year-old would expect that her statements would be available for later use at trial.

Because (1) Carney was not acting as a government agent; (2) a reasonable person in Carney’s situation would not examine the child-victim with the primary purpose of producing a statement for trial; and (3) a reasonable five-year-old in F.M.R.’s situation would not likely expect that her statements would be used for prosecutorial purposes, we conclude that F.M.R.’s statements to Carney were not testimonial.

Finally, we note that the United States Supreme Court has recently vacated the Minnesota Supreme Court’s decision in State v. Wright, 701 N.W.2d 802 (Minn. 2005), and remanded the case for further consideration in light of Davis v. Washington, 547 U.S. ___, 126 S. Ct. 2266 (2006).  Wright, 701 N.W.2d 802, vacated, 126 S. Ct. 2979 (2006).  Both Scacchetti and Bobadilla cite the now-vacated Wright as providing their analytical foundation.  See Scacchetti, 711 N.W.2d at 513; Bobadilla, 709 N.W.2d at 250-51.  But unlike Scacchetti, Bobadilla, and this case, Davis and Wright focus on statements of adults elicited by police officers in the course of interrogations and 911 calls.  Davis, 547 U.S. at ___, 126 S. Ct. at 2273; Wright, 701 N.W.2d at 810.  And the Supreme Court acknowledged in a footnote that the Davis decision did not consider “whether and when statements made to someone other than law enforcement personnel are ‘testimonial.’”  Davis, 547 U.S. at ___, 126 S. Ct. at 2274 n.2.  Thus, we continue to follow Scacchetti and Bobadilla because neither Davis nor Wright addressed nongovernmental questioners and child declarants and because Scacchetti and Bobadilla remain good law.

            We conclude that F.M.R.’s statements to her mother and to the nurse at MCRC were not testimonial.  Therefore, we reverse the district court’s order suppressing those statements and remand for trial. 

            Reversed and remanded.