NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 10 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ODECE DEMPSEAN HILL, No. 20-17369
Petitioner-Appellant, D.C. No. 2:19-cv-04836-DWL
v. MEMORANDUM* ATTORNEY GENERAL FOR THE STATE OF ARIZONA; DAVID SHINN, Director, Arizona Department of Corrections,
Respondents-Appellees,
and
CHARLES L. RYAN,
Respondent.
Appeal from the United States District Court for the District of Arizona Dominic Lanza, District Judge, Presiding
Argued and Submitted March 9, 2022 Phoenix, Arizona
Before: HAWKINS, PAEZ, and WATFORD, Circuit Judges. Dissent by Judge PAEZ
Odece Hill appeals from the district court’s order denying his petition for a
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Page 2 of 4
writ of habeas corpus, which challenged the lawfulness of his convictions arising
from the sexual assault of a victim who had passed away by the time of trial. We
affirm.
1. The state court rejected Hill’s Confrontation Clause challenge to the
admission of a statement made by the victim to a sexual assault nurse examiner
describing the alleged sexual assault. See State v. Hill, 336 P.3d 1283 (Ariz. Ct.
App. 2014). We conclude that this decision was neither contrary to, nor involved
an unreasonable application of, clearly established federal law as determined by
the Supreme Court of the United States. See 28 U.S.C. § 2254(d)(1).
The Confrontation Clause restricts the admission of testimonial statements
made by a non-testifying witness unless the witness is both unavailable and the
defendant had a prior opportunity for cross-examination. Crawford v. Washington,
541 U.S. 36, 68 (2004). The Supreme Court has held that a statement is
“testimonial” when the objective circumstances of the exchange eliciting the
statement indicate that there is no ongoing emergency and that the primary purpose
of the exchange was to “prove past events potentially relevant to later criminal
prosecution.” Davis v. Washington, 547 U.S. 813, 822 (2006); see also Michigan
v. Bryant, 562 U.S. 344, 358 (2011).
In rejecting Hill’s Confrontation Clause claim, the Arizona Court of Appeals
identified the correct governing law—the primary-purpose test set forth in Davis Page 3 of 4
and Bryant. See Hill, 336 P.3d at 1286–87. The state court then evaluated the
objective circumstances, including where the encounter took place, the formality of
the exchange, the victim’s medical condition, and whether law enforcement
officers were present. Id. at 1289–90. Based on these factors, the state court
concluded that “[t]he open-ended question (‘Tell me why you are here’), posed to
the victim in the emergency room, was not aimed at collecting evidence but at
gathering information about the victim’s medical condition.” Id. at 1290. The
court acknowledged that there was also an “investigative component” to the
nurse’s examination but concluded that the objective circumstances indicated that
the “primary purpose was medical treatment, not the collection of evidence of a
crime.” Id.
The state court applied the correct legal standard and conducted a fact-
intensive analysis of the objective circumstances of the nurse’s examination. No
decision of the Supreme Court clearly establishes that this fact-intensive analysis
was incorrect. Because fairminded jurists could disagree about whether the
primary purpose in these circumstances was medical treatment or providing
evidence for later criminal prosecution, Hill is not entitled to habeas relief. See
Harrington v. Richter, 562 U.S. 86, 101 (2011).
Hill also contends that the state court’s decision was erroneous under the
Supreme Court’s decisions in Melendez-Diaz v. Massachusetts, 557 U.S. 305 Page 4 of 4
(2009), and Bullcoming v. New Mexico, 564 U.S. 647 (2011). However, because
the examination report created by the nurse was not itself admitted into evidence,
those cases are inapposite.
2. The state court’s decision was not based on an unreasonable
determination of the facts under 28 U.S.C. § 2254(d)(2). Hill’s argument under
§ 2254(d)(2) is entirely derivative of his argument under § 2254(d)(1) that the state
court unreasonably applied clearly established law to the facts surrounding the
nurse’s examination, as none of the relevant facts here are in dispute. For the
reasons explained above, we reject this argument as well.
AFFIRMED. FILED Odece Hill v. Attorney General of the State of Arizona, et al., No. 20-17369 MAY 10 2022 Paez, J., Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
I respectfully dissent. In my view, the victim’s statement was testimonial,
and the state court’s rejection of Hill’s Confrontation Clause challenge was an
unreasonable application of clearly established federal law.
As the majority explains, Karyn Rasile (“Rasile”), the sexual assault nurse
examiner who examined the victim, testified at trial to the statements that the
victim made during the examination. In affirming the district court’s denial of
habeas relief, the majority overlooks the surrounding “relevant circumstances” of
the examination. Michigan v. Bryant, 562 U.S. 344, 369 (2011). These
surrounding circumstances lead me to conclude that reversal is warranted.
It was clearly established law at the time of the state appellate court’s
decision that a defendant’s Sixth Amendment Confrontation right is violated when
a testimonial statement is admitted at trial despite the declarant being unavailable
and the defendant having had no prior opportunity to cross-examine the declarant.
Crawford v. Washington, 541 U.S. 36, 59, 68 (2004). To determine whether a
statement is testimonial, we ask whether the “primary purpose” of the interrogation
was “to enable police assistance to meet an ongoing emergency,” which would
render the statement nontestimonial, or to “establish or prove past events
potentially relevant to later criminal prosecution,” which would make the statement
1 testimonial. Davis v. Washington, 547 U.S. 813, 822 (2006). In determining
whether a statement is testimonial, we consider: (1) whether the statement occurred
during an “ongoing emergency” or was necessary to resolve one; (2) whether the
statement described “events as they were actually happening” or “past events”; (3)
how “formal[]” the interrogation was; and (4) how a “reasonable participant[]”
viewing the declarant and interrogator’s “statements and actions” and the
surrounding “circumstances” would perceive the exchange’s primary purpose.
Davis, 547 U.S. at 827 (citation omitted and alteration in original); Bryant, 562
U.S. at 359–60.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 10 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ODECE DEMPSEAN HILL, No. 20-17369
Petitioner-Appellant, D.C. No. 2:19-cv-04836-DWL
v. MEMORANDUM* ATTORNEY GENERAL FOR THE STATE OF ARIZONA; DAVID SHINN, Director, Arizona Department of Corrections,
Respondents-Appellees,
and
CHARLES L. RYAN,
Respondent.
Appeal from the United States District Court for the District of Arizona Dominic Lanza, District Judge, Presiding
Argued and Submitted March 9, 2022 Phoenix, Arizona
Before: HAWKINS, PAEZ, and WATFORD, Circuit Judges. Dissent by Judge PAEZ
Odece Hill appeals from the district court’s order denying his petition for a
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Page 2 of 4
writ of habeas corpus, which challenged the lawfulness of his convictions arising
from the sexual assault of a victim who had passed away by the time of trial. We
affirm.
1. The state court rejected Hill’s Confrontation Clause challenge to the
admission of a statement made by the victim to a sexual assault nurse examiner
describing the alleged sexual assault. See State v. Hill, 336 P.3d 1283 (Ariz. Ct.
App. 2014). We conclude that this decision was neither contrary to, nor involved
an unreasonable application of, clearly established federal law as determined by
the Supreme Court of the United States. See 28 U.S.C. § 2254(d)(1).
The Confrontation Clause restricts the admission of testimonial statements
made by a non-testifying witness unless the witness is both unavailable and the
defendant had a prior opportunity for cross-examination. Crawford v. Washington,
541 U.S. 36, 68 (2004). The Supreme Court has held that a statement is
“testimonial” when the objective circumstances of the exchange eliciting the
statement indicate that there is no ongoing emergency and that the primary purpose
of the exchange was to “prove past events potentially relevant to later criminal
prosecution.” Davis v. Washington, 547 U.S. 813, 822 (2006); see also Michigan
v. Bryant, 562 U.S. 344, 358 (2011).
In rejecting Hill’s Confrontation Clause claim, the Arizona Court of Appeals
identified the correct governing law—the primary-purpose test set forth in Davis Page 3 of 4
and Bryant. See Hill, 336 P.3d at 1286–87. The state court then evaluated the
objective circumstances, including where the encounter took place, the formality of
the exchange, the victim’s medical condition, and whether law enforcement
officers were present. Id. at 1289–90. Based on these factors, the state court
concluded that “[t]he open-ended question (‘Tell me why you are here’), posed to
the victim in the emergency room, was not aimed at collecting evidence but at
gathering information about the victim’s medical condition.” Id. at 1290. The
court acknowledged that there was also an “investigative component” to the
nurse’s examination but concluded that the objective circumstances indicated that
the “primary purpose was medical treatment, not the collection of evidence of a
crime.” Id.
The state court applied the correct legal standard and conducted a fact-
intensive analysis of the objective circumstances of the nurse’s examination. No
decision of the Supreme Court clearly establishes that this fact-intensive analysis
was incorrect. Because fairminded jurists could disagree about whether the
primary purpose in these circumstances was medical treatment or providing
evidence for later criminal prosecution, Hill is not entitled to habeas relief. See
Harrington v. Richter, 562 U.S. 86, 101 (2011).
Hill also contends that the state court’s decision was erroneous under the
Supreme Court’s decisions in Melendez-Diaz v. Massachusetts, 557 U.S. 305 Page 4 of 4
(2009), and Bullcoming v. New Mexico, 564 U.S. 647 (2011). However, because
the examination report created by the nurse was not itself admitted into evidence,
those cases are inapposite.
2. The state court’s decision was not based on an unreasonable
determination of the facts under 28 U.S.C. § 2254(d)(2). Hill’s argument under
§ 2254(d)(2) is entirely derivative of his argument under § 2254(d)(1) that the state
court unreasonably applied clearly established law to the facts surrounding the
nurse’s examination, as none of the relevant facts here are in dispute. For the
reasons explained above, we reject this argument as well.
AFFIRMED. FILED Odece Hill v. Attorney General of the State of Arizona, et al., No. 20-17369 MAY 10 2022 Paez, J., Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
I respectfully dissent. In my view, the victim’s statement was testimonial,
and the state court’s rejection of Hill’s Confrontation Clause challenge was an
unreasonable application of clearly established federal law.
As the majority explains, Karyn Rasile (“Rasile”), the sexual assault nurse
examiner who examined the victim, testified at trial to the statements that the
victim made during the examination. In affirming the district court’s denial of
habeas relief, the majority overlooks the surrounding “relevant circumstances” of
the examination. Michigan v. Bryant, 562 U.S. 344, 369 (2011). These
surrounding circumstances lead me to conclude that reversal is warranted.
It was clearly established law at the time of the state appellate court’s
decision that a defendant’s Sixth Amendment Confrontation right is violated when
a testimonial statement is admitted at trial despite the declarant being unavailable
and the defendant having had no prior opportunity to cross-examine the declarant.
Crawford v. Washington, 541 U.S. 36, 59, 68 (2004). To determine whether a
statement is testimonial, we ask whether the “primary purpose” of the interrogation
was “to enable police assistance to meet an ongoing emergency,” which would
render the statement nontestimonial, or to “establish or prove past events
potentially relevant to later criminal prosecution,” which would make the statement
1 testimonial. Davis v. Washington, 547 U.S. 813, 822 (2006). In determining
whether a statement is testimonial, we consider: (1) whether the statement occurred
during an “ongoing emergency” or was necessary to resolve one; (2) whether the
statement described “events as they were actually happening” or “past events”; (3)
how “formal[]” the interrogation was; and (4) how a “reasonable participant[]”
viewing the declarant and interrogator’s “statements and actions” and the
surrounding “circumstances” would perceive the exchange’s primary purpose.
Davis, 547 U.S. at 827 (citation omitted and alteration in original); Bryant, 562
U.S. at 359–60.
Considering these factors, in my view, the victim’s statement was
testimonial, and the state court’s dismissal of Hill’s Confrontation Clause
challenge was an unreasonable application of clearly established federal law.
There was no “ongoing emergency” when Rasile examined the victim. Davis, 547
U.S. at 822. The victim’s statement, which detailed the specifics of the sexual
assault, described “past events” that were obviously “relevant to later criminal
prosecution.” Id. Although the examination took place in a hospital, it was
relatively formal. Bryant, 562 U.S. at 366. Rasile asked every question on the
Report, even those that did not apply to the victim or were pertinent only to a
criminal prosecution, because she was “required” to do so.
2 Perhaps most importantly, Rasile’s “statements and actions” would lead a
“reasonable participant[]” to perceive that the examination’s primary purpose,
including the question “why are you here,” was to gather evidence for a subsequent
criminal prosecution. Id. at 360. Rasile consulted a law enforcement officer
before examining the victim and explained to the victim that the examination
would include collection of evidence. The victim, who already had been treated by
emergency room staff, thereafter authorized Rasile’s examination by signing a
state-created form entitled, “Sex Crimes Evidence Report” (“Report”). The Report
authorized Rasile “to perform a medical forensic examination” and “treatment,” to
“collect[] . . . evidence,” to “photograph[]” the victim’s “injur[ies],” and to “release
. . . copies of the complete report to the law enforcement agency for purposes of
prosecution.”
It was under these circumstances that Rasile began the examination by
asking “why are you here,” to which the victim responded with the statement that
Rasile later relayed at trial. Rasile then swabbed the victim’s mouth, vagina, and
anus, drew blood, and asked all the questions on the Report, even those with no
apparent medical purpose. Rasile ultimately diagnosed the victim with “[s]exual
assault by history,” “[m]oderate genital and [n]o anal injury by exam,” “[e]vidence
of penetration of the vulva by exam and laboratory findings,” and “[c]rime lab
results pending.” After the examination, Rasile did not prescribe any medication
3 to the victim or schedule a follow-up appointment with her. Considering Rasile’s
actions and the surrounding circumstances, a reasonable participant would view the
examination as primarily for the purpose of “creating an out-of-court substitute for
trial testimony.” Bryant, 562 U.S. at 358.
The victim’s statement was testimonial under all the indicia outlined by the
Supreme Court in Davis and Bryant. Davis, 547 U.S. at 827; Bryant, 562 U.S. at
359–60. The state court failed to duly consider all of the circumstances of the
victim’s examination. For these reasons, the state court’s application of clearly
established federal law was unreasonable.
The state court’s error also resulted in actual prejudice. Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993) (citation omitted); Fry v. Pliler, 551 U.S.
112, 121 (2007). As the state admits, if Rasile had not testified to the victim’s
statement, the prosecution would have been unable to prove Counts 16 and 17, as
the statement provided the only details of which sex acts occurred in the bathroom.
Because of the importance of the victim’s statement, the absence of other
corroborating evidence, and the overall weakness of the prosecution’s case as it
related to Counts 16 and 17, the admission of the victim’s statement “had [a]
substantial and injurious effect or influence in determining the jury's verdict.”
Brecht, 328 U.S. at 637; Merolillo v. Yates, 663 F.3d 444, 455 (9th Cir. 2011).
For these reasons, I respectfully dissent.