State v. Burke

478 P.3d 1096, 196 Wash. 2d 712

Opinion

FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON IN CLERK’S OFFICE JANUARY 14, 2021 SUPREME COURT, STATE OF WASHINGTON JANUARY 14, 2021 SUSAN L. CARLSON SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) No. 96783-1 ) Petitioner, ) ) v. ) EN BANC ) RONALD DELESTER BURKE, ) ) Filed: January 14, 2021 Respondent. ) ______________________________ )

MONTOYA-LEWIS, J.—The Sixth Amendment guarantees that “[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the

witnesses against [them].” U.S. CONST. amend. VI. The confrontation clause is

concerned with “‘witnesses’ against the accused,” meaning those who “‘bear

testimony.’” Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct. 1354, 158 L. Ed.

2d 177 (2004) (quoting 2 NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE

ENGLISH LANGUAGE (1828)). A person accused of committing a crime has a right to

be confronted by those who bear testimony against them. Thus, statements that are

made out of court that are testimonial cannot be admitted for use against a criminal State v. Burke No. 96783-1

defendant unless the speaker is unavailable and the defendant had a prior opportunity

for cross-examination. Davis v. Washington, 547 U.S. 813, 821, 126 S. Ct. 2266,

165 L. Ed. 2d 224 (2006) (quoting and citing Crawford, 541 U.S. at 53-54, 51). On

the other hand, statements that are not testimonial do not implicate the confrontation

clause. Id. To determine whether a statement is testimonial, we must identify its

primary purpose. State v. Scanlan, 193 Wn.2d 753, 766, 445 P.3d 960 (2019)

(quoting Ohio v. Clark, 576 U.S. 237, 245, 135 S. Ct. 2173, 192 L. Ed. 2d 306

(2015)), cert. denied, 140 S. Ct. 834 (2020).

In this case, a patient being treated for a sexual assault made statements to a

sexual assault nurse examiner in the course of an exam with both medical and

forensic purposes. We hold that under these circumstances, the primary purpose of

nearly all of the statements was to guide the provision of medical care, not to create

an out-of-court substitute for trial testimony. Thus, the statements were not

testimonial, so their admission did not violate the Sixth Amendment. We further

hold that the trial court did not abuse its discretion in admitting those statements

under the hearsay exception for statements made for purposes of medical diagnosis

or treatment. Finally, we hold that the trial court did err in admitting one statement

describing the assailant, but the error was harmless. Accordingly, we reverse.

2 State v. Burke No. 96783-1

I. FACTS AND PROCEDURAL HISTORY

A. Factual Background

Around 1:30 a.m. on July 3, 2009, K.E.H. arrived in the emergency

department at Tacoma General Hospital. She reported that she had just been raped

in nearby Wright Park, where she resided. She was crying and had leaves and grass

in her hair. Shortly after she arrived, a social worker called the police to report the

rape. Around 3:15 a.m., Officer Khanh Phan arrived at the Tacoma General

emergency department and interviewed K.E.H. about the incident. K.E.H. gave a

description of the assailant and the location of the assault. After interviewing her,

Officer Phan went to the park to look for evidence and possible witnesses or suspects

but found no one.

K.E.H. was treated in the emergency department, where she received a CT

(computed tomography) scan and blood and urine tests. At about 11:15 a.m., K.E.H.

was medically cleared by the emergency department to go on to the sexual assault

exam. Sexual assault nurse examiner Kay Frey conducted K.E.H.’s sexual assault

exam that afternoon.

DNA (deoxyribonucleic acid) testing revealed spermatozoa on K.E.H.’s

underwear that had been collected during the sexual assault exam. In 2011, police

matched the DNA on the underwear to Ronald Burke. Burke lived in an apartment

near Wright Park in Tacoma in 2009 and admitted to having been to the park.

3 State v. Burke No. 96783-1

However, he denied ever having sex there or getting in a fight with a woman there.

In 2014,1 Burke was charged with second degree rape by forcible compulsion.

K.E.H. died in 2011.

B. Procedural History

Burke was tried by a jury in 2016. The State sought to admit statements K.E.H.

made to Nurse Frey during the sexual assault examination, relying on the hearsay

exception for statements made for purposes of medical diagnosis or treatment. ER

803(a)(4). Burke objected to their admission, contending that the statements were

testimonial, so their admission would violate his Sixth Amendment right to

confrontation. The court held a hearing on the admissibility of the statements,

ultimately ruling that all of the statements qualified as statements for the purpose of

medical diagnosis or treatment under ER 803(a)(4) and that they were

nontestimonial for purposes of the confrontation clause.

1. Hearing on Admissibility of the Statements

At the hearing, Nurse Frey testified that she was a nurse practitioner and that

in 2009 she was working as a sexual assault nurse examiner at Tacoma General,

where she provided forensic evaluations and medical care for patients who were

victims of sexual assault. She recalled that on July 3, 2009, she arrived at the Tacoma

1 At the time Burke was identified as a suspect in this case, he was incarcerated for a separate offense, and police waited until his appeal for that offense was exhausted before charging him with the rape of K.E.H. 4 State v. Burke No. 96783-1

General emergency department around 7:00 a.m. to see another patient. When she

met K.E.H., Nurse Frey said that she would not be able to see K.E.H. for some time

because she needed to see the other patient first, and K.E.H. said she wanted to wait.

In the notes from the examination, Nurse Frey indicated that K.E.H. had waited for

several hours while Nurse Frey was with another patient “because I don’t want him

to be out there doing this to someone else.” Pretrial Mot. Ex. 19F. Nurse Frey began

K.E.H.’s examination around 4:00 p.m. that day.

Describing her duties as a sexual assault nurse examiner, Nurse Frey

explained that she would respond to calls from emergency departments “for

patients[2] who had presented there with a history of sexual assault, and we went out

to whichever hospital called . . . and did the forensic evaluations and medical care

for them.” 6 Verbatim Transcript of Proceedings (VTP) (Nov. 3, 2016) at 543. She

also testified about the purpose of the exam she performed on K.E.H.:

The purposes are to do the forensic piece: Photographing, taking a history, doing any DNA retrieval that could be done. Another purpose is to provide them with the medical care they need, subsequent to their assault, and provide support and connections for them via advocates and social workers and that kind of thing. So it’s to basically manage their case.

Id. at 545. Nurse Frey consulted the documents that comprised the sexual assault

evaluation, which the court admitted for the purposes of the hearing.

2 We note here she describes those for whom she provides these services as “patients,” not “witnesses.” 5 State v. Burke No. 96783-1

The sexual assault exam began with a consent form, which K.E.H. signed.

The consent form indicated under the “Medical Care” heading that “[a] medical

screening examination and care must be provided by an emergency department or

primary care provider prior to the forensic evaluation. A forensic evaluation does

not include general medical care.” Pretrial Mot. Ex. 19B. Nurse Frey explained that

this meant patients needed to be “deemed capable of going forward” before

beginning the sexual assault exam, where she would provide medication and

treatment specific to sexual assault. 6 VTP (Nov. 3, 2016) at 555, 557. Under the

heading “Forensic Evaluation,” the consent form indicated that physical evidence,

such as swabs and blood, may be collected; photographs may be taken and used for

legal purposes; medication may be recommended (“including immunizations, anti-

nausea medications, emergency contraception and medications to treat sexually

transmitted infections”); the forensic nurse examiner may speak to the investigating

officer only if the assault had been reported to law enforcement; and the detailed

medical records (“photographs, lab results, written documentation”) would be kept

confidential. Pretrial Mot. Ex. 19B (emphasis omitted). Under the heading “Physical

Evidence Disposition,” the consent form indicated that all physical evidence

collected during the forensic evaluation (“sexual assault kit, clothing”) would be

released to the agency investigating or prosecuting the assault. Id. (emphasis

omitted).

6 State v. Burke No. 96783-1

After obtaining K.E.H.’s consent to perform the exam, Nurse Frey took

K.E.H.’s patient history, which she recorded “word for word” on the forensic

evaluation patient narrative. 6 VTP (Nov. 3, 2016) at 549. Nurse Frey testified that

the patient history is

probably the most important thing. .... . . . Well, this is just medical training in general. History guides everything, and that’s true for sexual assault patients as well. So what they tell you, what they can tell you, what they aren’t able to tell you, directs you further to what they might need, medically to figure it out. .... . . . Sometimes it governs medications, for example. Sometimes it governs where you might look for injuries more closely; that kind of thing.

Id. at 545-46. When Nurse Frey asked K.E.H. what happened in Wright Park, K.E.H.

responded:

I was sitting there rolling myself a cigarette. I know he covered my mouth because I would have been screaming for help. I was taken to the ground. I don’t know if he tried choking me or not. The next thing I knew I was taken to the ground, my pants were off and stuff and he was inside me. It was over and done with. I think he told me to keep my mouth shut. That’s all I remember, then I came here. I walked over to the hospital.

Pretrial Mot. Ex. 19E; 6 VTP (Nov. 3, 2016) at 612 (Nurse Frey reading K.E.H.’s

response from Pretrial Mot. Ex. 19E during the hearing).

Next, Nurse Frey asked K.E.H. specific questions about what she remembered

from the assault, according to the patient history protocol. In the patient history

forms, she recorded quoted language from K.E.H. describing the location of the 7 State v. Burke No. 96783-1

assault (“close to 6th Avenue [at] a table”) and the assailant’s appearance (“He was

tall, a light black, no hair or short hair. He had a white T-shirt and jeans. No jacket.”).

Pretrial Mot. Ex. 19C. Nurse Frey also recorded K.E.H.’s answers to questions about

penetration, ejaculation, contraception, and her position during the assault (“on the

ground on my back”). Id. The patient history forms also included K.E.H.’s answers

to questions about strangulation (“He put his hand over my mouth.”), grasping,

grabbing, or holding (“He was laying on me.”), intimidation or threat (“To keep my

mouth shut & don’t report it.”), and her pain level, allergies, and postassault hygiene.

Pretrial Mot. Ex. 19D. The forms also indicated that K.E.H. was allergic to some

pain medications and needed crutches due to arthritis. Nurse Frey testified that the

answers to these questions would guide her to look for injuries as well as evidence. 3

Nurse Frey conducted a general exam and a genital exam, and took photos of

and documented K.E.H.’s injuries on the evaluation form. Nurse Frey clarified that

while the emergency department provided K.E.H. with general medical care, she

provided medications and treatment specifically relating to the sexual assault. She

testified that when she examined K.E.H., she discovered a cervical laceration, an

unusual injury, that was still bleeding. She was the first medical provider to discover

3 Nurse Frey explained some of the routine and specific treatment she provided during sexual assault exams. For example, she explained that she would prescribe standard medications to most sexual assault patients, but an assault that involved strangulation would trigger specific treatment. 8 State v. Burke No. 96783-1

that injury, and she was concerned that it might require further treatment by an

obstetrician-gynecologist.

Finally, Nurse Frey explained that although sexual assault forensic exams are

paid for by state and federal crime victims’ funds, her salary was paid by the health

care organization MultiCare and she did not take any direction from law enforcement

regarding the steps she should take in her job. Nurse Frey recalled that K.E.H. had

been visited by law enforcement because she wanted to report the rape, but Nurse

Frey herself did not meet with law enforcement “in any way” on this case, and no

member of law enforcement was present during the exam. 6 VTP (Nov. 3, 2016) at

548.

The court ruled K.E.H.’s statements admissible. Nurse Frey was permitted to

testify to the jury about the statements K.E.H. made to her in the course of the sexual

assault examination and evaluation.

2. Trial Testimony

Before the jury, Nurse Frey testified about her examination of K.E.H. She read

K.E.H.’s descriptions of the assault, the location, and the assailant aloud to the jury.

She also read K.E.H.’s answers to the targeted questions about penetration,

ejaculation, contraception, her position during the assault, and her pain level. She

read K.E.H.’s answers about strangulation, grabbing, grasping, or holding, and

intimidation as well. She described the injuries she observed during the general

9 State v. Burke No. 96783-1

physical exam and the genital exam, including injuries to K.E.H.’s knee, elbow,

inner thigh, and internal and external genitalia, and the more serious cervical

laceration.

Several police officers testified about the process of identifying Burke as a

suspect. A social worker had called the police when K.E.H. arrived at Tacoma

General, reporting that K.E.H. had been raped. Officer Phan testified that he

interviewed K.E.H. in the early hours of the morning on July 3, 2009. He took her

description of the assault and the assailant, and he went to the park to look for anyone

fitting that description, but he did not find anyone at all. Detective Christie Yglesias

testified that the initial police report contained “a general description [of the

assailant], but nothing that would stick out.” 8 VTP (Nov. 8, 2016) at 864. She said

that initial testing of the sexual assault kit in 2009 revealed a DNA profile, but no

matches were found in the crime lab database, and the case remained active, pending

further investigation.

Detective Yglesias testified that in May 2011, the crime lab obtained a match

between Burke and the DNA profile found on K.E.H.’s underwear. Police obtained

a reference DNA sample from Burke to compare with the sample from the sexual

assault kit. Forensic DNA analyst Dr. Kelli Byrd testified extensively about the

process of testing and matching the DNA in this case. The forensic lab identified

spermatozoa on the underwear in the sexual assault kit. It found that Burke could not

10 State v. Burke No. 96783-1

be excluded as a contributor to the DNA from the sample and that the chances of

someone else matching the sample to the degree Burke matched were 1 in 170

quadrillion.4

The jury found Burke guilty of rape in the second degree by forcible

compulsion. The trial court imposed legal financial obligations in the judgment and

sentence, although it found that Burke was indigent and would not be able to pay

nonmandatory fines or costs. It ordered him to pay restitution and a crime victim

assessment, as well as a $100 DNA collection fee and a $200 criminal filing fee,

with interest to accrue on the legal financial obligations.

Burke appealed. He argued that (1) K.E.H.’s statements to Nurse Frey were

testimonial, so their admission violated his right to confrontation, and (2) the

statements did not qualify as statements made for the purpose of medical diagnosis

under ER 803(a)(4). Although Scanlan, 193 Wn.2d at 761, had not yet been decided,

the Court of Appeals applied the primary purpose test for the confrontation clause

issue, as articulated in Clark, 576 U.S. at 244-46, and Davis, 547 U.S. at 822. State

v. Burke, 6 Wn. App. 2d 950, 953, 431 P.3d 1109 (2018). The Court of Appeals held

that all of K.E.H.’s statements to Nurse Frey were testimonial, their admission

violated the confrontation clause, and the error was not harmless. Id. Burke had also

4 Burke did not challenge the DNA evidence or any testimony other than Nurse Frey’s on appeal. 11 State v. Burke No. 96783-1

sought to have certain legal financial obligations stricken from the judgment and

sentence. The State agreed that Burke was indigent and that his DNA had been

previously collected as a result of a prior conviction, so the DNA collection fee, the

criminal filing fee, and the interest provision should be stricken. However, because

the Court of Appeals reversed on the confrontation clause issue, it did not reach the

ER 803(a)(4) or legal financial obligation issues. Id. at 973 & n.9.

The State sought this court’s review, which we granted. 194 Wn.2d 1009

(2019).

II. ANALYSIS

A. Confrontation Clause

The Sixth Amendment provides that “[i]n all criminal prosecutions, the

accused shall enjoy the right . . . to be confronted with the witnesses against him.”

U.S. CONST. amend. VI. 5 The confrontation clause prohibits the admission of

testimonial statements unless the declarant is unavailable and the defendant had a

5 See also Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965) (incorporating the confrontation clause to the states). Burke refers to the right to confrontation contained in both the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution. However, he fails to present an independent analysis of the right under our state constitution. Therefore, our analysis is limited to the federal constitution. See Scanlan, 193 Wn.2d at 773-74 (Gordon McCloud, J., concurring); see also Burke, 6 Wn. App. 2d at 963 n.2. 12 State v. Burke No. 96783-1

prior opportunity for cross-examination. Crawford, 541 U.S. at 59. Review of

confrontation clause challenges is de novo. Scanlan, 193 Wn.2d at 761.

Only statements that are testimonial implicate the confrontation clause. Davis,

547 U.S. at 821. The confrontation clause speaks to “‘witnesses’ against the

accused,” meaning those who “‘bear testimony,’” which is “‘[a] solemn declaration

or affirmation made for the purpose of establishing or proving some fact.’”

Crawford, 541 U.S. at 51 (alteration in original) (quoting 2 WEBSTER, supra).

Declining to define the precise scope of “testimonial” statements, the Crawford

Court explained that “it applies at a minimum to prior testimony at a preliminary

hearing, before a grand jury, or at a former trial[,] and to police interrogations.” Id.

at 68.

In the years following Crawford, the United States Supreme Court articulated

what became known as the primary purpose test to determine whether out-of-court

statements are testimonial.6 In Davis, the Court explained that statements “are

testimonial when the circumstances objectively indicate that . . . the primary purpose

of the interrogation is to establish or prove past events potentially relevant to later

criminal prosecution.” 547 U.S. at 822. The primary purpose test applies to all

statements that implicate the confrontation clause, regardless of to whom they are

made. Scanlan, 193 Wn.2d at 763-66; see, e.g., id. at 766 (medical providers); Clark,

6 See Scanlan, 193 Wn.2d at 761-66, for a review of the origins of this test. 13 State v. Burke No. 96783-1

576 U.S. at 246 (preschool teachers); State v. Beadle, 173 Wn.2d 97, 109-10, 265

P.3d 863 (2011) (law enforcement).

Courts must determine the primary purpose of an interrogation “by

objectively evaluating the statements and actions of the parties to the encounter, in

light of the circumstances in which the interrogation occurs.” Michigan v. Bryant,

562 U.S. 344, 370, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011). When the primary

purpose of questioning is to respond to an ongoing emergency, for example, “its

purpose is not to create a record for trial and thus is not within the scope of the

Clause. But there may be other circumstances, aside from ongoing emergencies,

when a statement is not procured with a primary purpose of creating an out-of-court

substitute for trial testimony.” Id. at 358. Thus, to determine whether the primary

purpose of the statements is to create an out-of-court substitute for trial testimony,

we must objectively evaluate the statements and actions of both the declarant and

the individual who hears the statements in light of the circumstances in which their

conversation occurred.

Statements are testimonial when they are made to establish past facts in order

to investigate or prosecute a crime. For example, statements are testimonial when

they are made in formal police interrogations. See Crawford, 541 U.S. at 52. Less

formal statements to police officers can also be testimonial. Statements to police

responding to a 911 call were testimonial when the declarant described past events

14 State v. Burke No. 96783-1

in the presence of police officers in order to help them investigate a crime and it was

clear the declarant was in no immediate danger. See Davis, 547 U.S. at 829-30; State

v. Koslowski, 166 Wn.2d 409, 430, 209 P.3d 479 (2009). Similarly, statements that

a victim of child molestation made to police were testimonial when the interview

took place months after the abuse had ended and the perpetrator had been removed

from the home. Beadle, 173 Wn.2d at 109-10. Although a Child Protective Services

(CPS) worker was present during the interview, the immediate danger to the

declarant had passed. Id. The CPS worker was “present only to assist the police

department” in obtaining evidence from a traumatized child—“not to protect [the

child’s] welfare in her capacity as a CPS employee”—and the primary purpose of

the statements was to establish or prove past facts for use in a criminal prosecution.

Id.

On the other hand, statements are nontestimonial when they have another

primary purpose. Statements made to assist police in addressing an ongoing

emergency is a well-established nontestimonial purpose. For example, frantic

statements to a 911 emergency operator describing the identity of an assailant in a

domestic disturbance in progress were nontestimonial because the declarant was

seeking help in the face of immediate danger. Davis, 547 U.S. at 827. Statements

made by a man bleeding from a gunshot wound, describing the shooter and the

location of the shooting to police responding to radio dispatch, were nontestimonial

15 State v. Burke No. 96783-1

because there was an ongoing emergency endangering the public at large. Bryant,

562 U.S. at 374-78.

The role of the person the declarant is speaking to is significant to determining

the primary purpose of a statement. Clark, 576 U.S. at 249 (“Courts must evaluate

challenged statements in context, and part of that context is the questioner’s

identity.”). A person “who makes a formal statement to government officers bears

testimony in a sense that a person who makes” statements in other contexts does not.

Crawford, 541 U.S. at 51. Law enforcement officers are “principally charged with

uncovering and prosecuting criminal behavior”; thus, statements made to them are

much more likely to be used as a substitute for trial testimony. Clark, 576 U.S. at

249. Additionally, a person conducting an interrogation for the police may be

considered an agent of the police for purposes of the confrontation clause. See, e.g.,

Davis, 547 U.S. at 823 n.2. 7

Statements made to witnesses other than law enforcement officers are far

more likely to be made for reasons not primarily associated with criminal

prosecution. Statements are nontestimonial when their primary purpose is to guide

the provision of medical care or to determine whether a person responsible for the

7 Without deciding whether the acts of 911 operators are in fact acts of police, the Davis Court analyzed statements made to a 911 operator as statements made to law enforcement personnel, reasoning that “[i]f 911 operators are not themselves law enforcement officers, they may at least be agents of law enforcement when they conduct interrogations of 911 callers.” 547 U.S. at 823 n.2. 16 State v. Burke No. 96783-1

declarant’s safety should permit them to leave. For example, a child’s statement to

his preschool teacher describing abuse and his abuser were nontestimonial because

the teacher needed to determine whether it was safe to release him to go home with

his guardian. Clark, 576 U.S. at 246-47. As we explained in Scanlan, statements to

medical providers “are ‘significantly less likely to be testimonial than statements

given to law enforcement officers’ because medical personnel are ‘not principally

charged with uncovering and prosecuting criminal behavior.’” Scanlan, 193 Wn.2d

at 767 (quoting Clark, 576 U.S. at 249). There, a domestic violence victim described

the cause of his injuries to emergency and follow-up medical providers. Id. at 758-

60. Those statements were nontestimonial because both sets of medical providers

needed to understand how to treat the injuries. Id. at 768. The victim’s statements

identifying his girlfriend as the assailant were similarly nontestimonial because the

medical providers needed to know whether he would be safe upon discharge. Id. at

768-69.

1. Nontestimonial Statements8

Objectively viewing the statements and actions of K.E.H. and Nurse Frey in

light of the circumstances of a sexual assault exam, we hold that nearly all of

K.E.H.’s statements were nontestimonial. A sexual assault exam contains both

8 For purposes of determining whether the statements were admissible, the facts are limited to those presented at the admissibility hearing. 17 State v. Burke No. 96783-1

forensic and medical purposes, and some statements may be more relevant to one

purpose than another. However, the confrontation clause requires us to identify a

singular dominant purpose to determine whether statements are testimonial. Davis,

547 U.S. at 822. Therefore, we must “objectively evaluate[] the statements and

actions of the parties to the encounter, in light of the circumstances in which the

interrogation occurs,” to determine the primary purpose of statements made to a

sexual assault nurse examiner. Bryant, 562 U.S. at 370. We hold that nearly all of

K.E.H.’s statements were nontestimonial because their primary purpose was to guide

the provision of medical care.

Nurse Frey’s role as a sexual assault nurse examiner requires us to determine

whether she was principally acting as a medical provider or as someone charged with

uncovering and prosecuting criminal behavior when she elicited these statements

from K.E.H. Scanlan, 193 Wn.2d at 767; Clark, 576 U.S. at 249. The role of sexual

assault nurse examiner shares features with both medical providers and law

enforcement because the nurse’s duties are to provide medical care and to collect

evidence. However, we do not believe that sexual assault nurse examiners are

“principally charged with uncovering and prosecuting criminal behavior.” Clark,

576 U.S. at 249 (emphasis added).9

9 Other jurisdictions have split on whether the connection to investigating officers or the provision of medical care dictates the primary purpose of a forensic sexual assault exam in a particular factual scenario. See State v. Hill, 236 Ariz. 162, 167, 336 P.3d 1283 (Ariz. Ct. App. 18 State v. Burke No. 96783-1

Sexual assault nurse examiners are medical professionals with specialized

evidence-collecting skills and training that supplement their medical training.10 But

this specialization does not transform a class of medical professionals into agents of

the police, nor does it mean that their duty to provide medical care becomes a lower

priority than their evidence-collecting responsibilities. Sexual assault nurse

examiner programs emerged in the 1970s as “nurses, other medical professionals,

counselors, and advocates working with rape victims in hospitals, clinics, and other

settings . . . recognized that services to sexual assault victims were inadequate and

not at the same high standard of care for other [emergency department] clients.”

LINDA E. LEDRAY, SEXUAL ASSAULT RES. SERV., SEXUAL ASSAULT NURSE

2014) (“Because forensic medical examinations often have two purposes—to gather evidence for a criminal investigation and to provide medical care to the victim—whether a victim’s statement in response to a question by the examiner is testimonial for purposes of the Confrontation Clause turns on whether the surrounding circumstances, objectively viewed, show that the primary purpose of the exchange at issue was to provide medical care or to gather evidence.”); Thompson v. State, 2019 OK Cr 3, ¶12, 438 P.3d 373, 377 (collecting cases), cert. denied, 140 S. Ct. 171 (2019). 10 WASH. STATE DEP’T OF COMMERCE, SEXUAL ASSAULT RESPONSE: INCREASING SEXUAL ASSAULT NURSE EXAMINER AVAILABILITY AND ACCESS STATEWIDE 14 (2019) (hereinafter SEXUAL ASSAULT RESPONSE) [https://perma.cc./BWR6-V5KX]; see also Linda A. Hutson, Development of Sexual Assault Nurse Examiner Programs, 37 NURSING CLINICS OF N. AM. 79, 79 (2002) (“A sexual assault nurse examiner (SANE) is a registered nurse (RN) specially trained in the comprehensive care of the survivor of sexual assault.”). Linda E. Ledray & Sherry Arndt, Examining the Sexual Assault Victim: A New Model for Nursing Care, 32 J. PSYCHOSOCIAL NURSING & MENTAL HEALTH SERVS. 7, 11-12 (1994) (“The role of the nurse examiner goes far beyond collecting forensic evidence that will be useful should the case go to court. Her role involves providing comprehensive care for the survivor and working cooperatively with other individuals in the legal system. The forensic nurse working in this role is uniquely qualified to provide the comprehensive care necessary to the sexual assault survivor. Treating injuries, preventing pregnancy from occurring or proceeding, and preventing the contraction of a sexually transmitted disease from the rape helps reduce secondary injury. Crisis intervention and supportive counseling help the victim move toward recovery and survivor status.”). 19 State v. Burke No. 96783-1

EXAMINER (SANE) DEVELOPMENT & OPERATION GUIDE 5 (1999)

[https://perma.cc/75M7-6SNC]. Patients who were victims of sexual assault often

had to wait for hours in busy, public areas because their injuries were viewed as less

serious than those of other trauma patients. Id. Medical providers were not

sufficiently trained to perform “medical-legal” exams or provide expert witness

testimony. Id. Additionally, these patients were often retraumatized by the process

of the exam and by the way they were treated by the medical providers. Id. (“Even

when the victim’s medical needs were met, their emotional needs all too often were

overlooked, or even worse, the victim was blamed for the rape by the [emergency

department] staff.” (citations omitted)); Linda A. Hutson, Development of Sexual

Assault Nurse Examiner Programs, 37 NURSING CLINICS OF N. AM. 79, 79 (2002).

Today, sexual assault nurse examiners “receive specialized training in

forensic evidence collection, sexual assault trauma response, forensic techniques

using special equipment, expert-witness testimony, assessment and documentation

of injuries, identifying patterned injury, and maintenance of chain of evidence.”

Debra Patterson, Rebecca Campbell & Stephanie M. Townsend, Sexual Assault

Nurse Examiner (SANE) Program Goals and Patient Care Practices, 38 J. NURSING

SCHOLARSHIP 180, 181 (2006) (hereinafter SANE Program Goals). They are

responsible for conducting sexual assault exams, “including crisis intervention, STD

prevention, pregnancy risk evaluation and interception, collection of forensic

20 State v. Burke No. 96783-1

evidence, and referrals for additional support and care.” LEDRAY, supra, at 11.

Though documenting and collecting evidence are some of the critical responsibilities

of a sexual assault nurse examiner, so is providing medical care. 11 Sexual assault

nurse examiners provide medical care specific to sexual assault regardless of

whether or not the patient wishes to report the crime to police. Id. at 11-12; SEXUAL

ASSAULT RESPONSE, supra, at 16-17.

In this case, Nurse Frey testified that her duties as a sexual assault nurse

examiner were twofold: both to collect evidence and to provide medical care. At the

hearing, Nurse Frey testified about her background in medicine as well as her duties

as a sexual assault nurse examiner. She described those duties as providing forensic

evaluations and medical care for patients who presented with a history of sexual

assault. She explained that, according to her medical training, taking the patient’s

history is the “most important thing” for treating patients—including “sexual assault

patients”—because it guides the medical provider in determining where to look for

injuries and what medication is appropriate. 6 VTP (Nov. 3, 2016) at 545-46. Nurse

Frey followed protocols to collect and preserve physical samples, but she did not

take any direction from law enforcement regarding the steps she should take in the

11 SEXUAL ASSAULT RESPONSE, supra, at 9 (“Sexual assault response is an issue of both public health and criminal justice: It is important that patients receive adequate treatment for their physical and mental injuries, victims receive justice and perpetrators are prosecuted for their crimes.” (emphasis omitted)); see also SANE Program Goals at 181-82 (“‘providing high quality medical care’ was rated as a primary program goal” by 90 percent of participating programs). 21 State v. Burke No. 96783-1

exam, and no member of law enforcement was present during the exam. Cf. Beadle,

173 Wn.2d at 109 & n.10 (CPS worker was present during police interrogation “only

to assist the police department—not to protect [the child’s] welfare in her capacity

as a CPS employee” (emphasis added)). Finally, although the exam itself was paid

for by state and federal crime victims’ compensation funds, 12 Nurse Frey was

employed and paid by a health care organization; she was not paid with

governmental funds. Thus, Nurse Frey’s forensic duties did not subordinate her

medical responsibilities but, rather, supplemented them.

Under these circumstances, we decline to hold that a sexual assault nurse

examiner acts as an agent of police. Instead, we view Nurse Frey as a medical

provider, to whom statements “are ‘significantly less likely to be testimonial than

12 See RCW 7.68.170 (prohibiting hospitals for billing or charging costs of sexual assault exams to the victim of the assault when the examination is performed for the purposes of gathering evidence of possible prosecution); WAC 296-30-170 (costs must be billed to the crime victims compensation program). The medical forensic evaluation is also used as evidence to verify that the medical care was provided to treat an injury resulting from a criminal act, which is necessary to determine whether medical care can be paid for by the crime victims compensation program. WAC 296-30-010. The concurrence and amicus curiae suggest that because the exam had to be billed to the crime victims compensation program, Nurse Frey must have represented that gathering evidence was the sole purpose of the exam. As discussed above, it is not clear that the forensic component overrides the medical treatment component of a sexual assault forensic exam (either in general or in this specific case). Moreover, whether RCW 7.68.170 and WAC 296-30-170 limit billing the State for sexual assault exams to only those exams whose primary or sole purpose is to gather evidence for prosecution is not a question squarely before us. In any event, we do not think that the intricacies of medical billing systems can be determinative of whether statements a sexual assault patient makes to a medical professional specializing in sexual assault exams are testimonial for purposes of the confrontation clause of the Sixth Amendment. While relevant to the inquiry, the funding structure of the exam does not determine the primary purpose of the statements made in the course of the exam. 22 State v. Burke No. 96783-1

statements given to law enforcement officers’ because medical personnel are ‘not

principally charged with uncovering and prosecuting criminal behavior.’” Scanlan,

193 Wn.2d at 767 (emphasis added) (quoting Clark, 576 U.S. at 249).

Burke argues that K.E.H.’s statements should be viewed as testimonial

because Nurse Frey was not gathering information in response to an ongoing

emergency. However, our inquiry does not turn on the existence of an ongoing

emergency for two reasons. First, since Nurse Frey was not acting as law

enforcement, the primary purpose of the statements is not limited to either creating

testimony or addressing an ongoing emergency. “[T]he existence of an ‘ongoing

emergency’ at the time of an encounter between an individual and the police is

among the most important circumstances informing the ‘primary purpose’ of an

interrogation.” Bryant, 562 U.S. at 361 (emphasis added). The existence of an

ongoing emergency is often an indicator that a statement to law enforcement (or its

agents) is nontestimonial. See, e.g., id. at 374-78 (police responding to radio

dispatch); Davis, 547 U.S. at 827 (911 operator). But see Clark, 576 U.S. at 246

(preschool teachers). Statements made to police are often made under circumstances

that would lead an objective declarant to believe that they would be used to prove

past facts at trial, or else under circumstances evincing an ongoing emergency that

police are necessary to resolve. See, e.g., Crawford, 541 U.S. at 52; Bryant, 562 U.S.

23 State v. Burke No. 96783-1

at 375-76. However, when declarants speak to someone other than law enforcement,

there may be a multitude of purposes for the statements.

Second, “the existence vel non of an ongoing emergency is not the touchstone

of the testimonial inquiry,” and “there may be other circumstances, aside from

ongoing emergencies, when a statement is not procured with a primary purpose of

creating an out-of-court substitute for trial testimony.” Bryant, 562 U.S. at 374, 358.

For example, in Scanlan, we held that none of a domestic violence victim’s

statements to his medical providers were testimonial: some were made to determine

whether there was an ongoing emergency, while others were made for medical

purposes. 193 Wn.2d at 768-69. The patient’s statements identifying his assailant

“were elicited by ‘questions . . . meant to identify the abuser in order to protect the

victim from future attacks.’” Id. (alteration in original) (quoting Clark, 576 U.S. at

247). The medical providers needed to know the identity of the assailant to determine

whether the patient would be safe upon discharge or whether he needed referrals for

social services. Id. at 759-60. This was true in the contexts of both emergency and

follow-up treatment. Id. Moreover, the “statements to medical providers describing

the cause of his injuries were elicited for the purpose of obtaining medical

treatment.” Id. at 768. Several of the medical providers testified that they needed to

know how the patient’s injuries occurred in order to determine how serious the

injuries were, whether they were related to underlying medical conditions, and

24 State v. Burke No. 96783-1

whether the medical providers needed to take measures to prevent new or recurring

injuries. Id. at 759-60. Scanlan makes clear that obtaining medical treatment is a

nontestimonial primary purpose, distinct from an ongoing emergency.

The circumstances and K.E.H.’s statements indicate that nearly all of the

statements were made primarily for medical purposes. K.E.H. made these statements

in a medical exam room in a hospital. She needed medical treatment specific to her

sexual assault, which Nurse Frey provided. Although K.E.H. had been medically

cleared from the emergency department, this did not mean that she was no longer in

need of any medical treatment. Instead, she was no longer in need of emergency

medical treatment and was cleared to go on to the next step for her: the sexual assault

exam. While some patients in this situation may choose to leave the hospital and not

attend this exam, it is uncontroverted that this is part of the process of treating a

sexual assault patient. This was this patient’s next step, and the fact that the hospital

did not have the staff to address this step immediately does not mean the statement

was nonmedical in purpose. Additionally, while the consent form K.E.H. signed

indicated that general medical care would not be provided during the sexual assault

exam, Nurse Frey did provide treatment and prescribe medication specific to the

sexual assault during her exam. In fact, Nurse Frey discovered the cervical laceration

that the emergency physician had not discovered during K.E.H.’s general medical

treatment earlier in the day.

25 State v. Burke No. 96783-1

Most of K.E.H.’s statements had either two purposes (medical and forensic)

or an exclusive medical purpose. For example, questions about contraception and

ejaculation indicated whether and where DNA evidence might be collected, but they

were also necessary to determine whether the patient needed medication to treat

sexually transmitted infections or prevent pregnancy. Additionally, while the

possibility of strangulation and the patient’s position during the assault indicated the

degree of force (which would bear on what crime the perpetrator could be charged

with), that information also revealed where the patient had additional injuries that

needed treatment. K.E.H. also talked about missing crutches that she needed to walk

(due to arthritis, not due to an injury incurred during the assault) and answered

questions about allergies to medications—matters that were certainly relevant to

medical treatment but unrelated to the sexual assault. K.E.H.’s account of the assault

was part of the patient history, and Nurse Frey testified that she always started with

an open-ended question about what happened because patient history is “the most

important thing,” according to her medical training. 6 VTP (Nov. 3, 2016) at 545.

Further, the consent form K.E.H. signed at the beginning of the exam

indicated that medical records of the exam, including “photographs, lab results, [and]

written documentation” would be kept confidential. Pretrial Mot. Ex. 19B (emphasis

omitted). K.E.H.’s statements were contained in the written documentation, which

would remain confidential; they were not part of the physical evidence, which would

26 State v. Burke No. 96783-1

be released to police. The patient history that Nurse Frey described as the most

important aspect of medical treatment was among the written records that would

remain confidential. Regardless of the forensic purposes for taking swabs and

collecting clothing, the primary purpose of eliciting nearly all of the statements

K.E.H. made during the course of the exam was to guide the medical exam; the

statements were used to create the documentation, which would become part of the

highly confidential medical records.

Together, K.E.H.’s and Nurse Frey’s statements and actions in the context of

a sexual assault exam indicate that the primary purpose of nearly all of K.E.H.’s

statements was not to provide an out-of-court substitute for trial testimony but to

guide medical treatment for sexual assault. Statements patients make to medical

providers “are ‘significantly less likely to be testimonial than statements given to

law enforcement officers’ because medical personnel are ‘not principally charged

with uncovering and prosecuting criminal behavior.’” Scanlan, 193 Wn.2d at 767

(quoting Clark, 576 U.S. at 249). It is not the nurse’s principal duty to uncover and

prosecute criminal behavior, even when they are tasked with collecting evidence as

part of their specialized training. The statements were made in a hospital exam room,

not a police station. No member of law enforcement was present during the exam,

and Nurse Frey did not take any direction from law enforcement. Additionally,

Nurse Frey provided medical care specific to sexual assault. Finally, these

27 State v. Burke No. 96783-1

statements were elicited for both medical and forensic purposes, if not exclusively

medical purposes. Nearly every statement K.E.H. made during the exam was

necessary to guide the medical component in the exam, and their primary purpose

was not to create an out-of-court substitute for trial testimony. Under these

circumstances, most of K.E.H.’s statements cannot be characterized as primarily

testimonial. With the exception of one statement describing the assailant (discussed

below), we hold that the primary purpose of K.E.H.’s statements during the sexual

assault exam was to receive medical care. Thus, the statements were nontestimonial

and their admission did not violate the confrontation clause.

2. Testimonial Statement

“[A] conversation could contain both testimonial and nontestimonial

statements.” Koslowski, 166 Wn.2d at 419 (citing Davis, 547 U.S. at 828). “[T]rial

courts will recognize the point at which, for Sixth Amendment purposes, statements

. . . become testimonial. Through in limine procedure, they should redact or exclude

the portions of any statement that have become testimonial, as they do, for example,

with unduly prejudicial portions of otherwise admissible evidence.” Davis, 547 U.S.

at 829. In this case, K.E.H. made both testimonial and nontestimonial statements

during the course of the sexual assault exam. Most of K.E.H.’s statements did not

implicate the confrontation clause, but the trial court erred in admitting the one that

did.

28 State v. Burke No. 96783-1

One statement was testimonial. One of the questions Nurse Frey asked when

taking K.E.H.’s patient history sought a “description of assailant(s).” Pretrial Mot.

Ex. 19C. Nurse Frey read K.E.H.’s answer to the jury, which described the

assailant’s appearance and clothing. Although this question could conceivably elicit

answers designed to address patient safety, rather than information that would assist

police in investigating or prosecuting a crime, 13 that was not the case here. K.E.H.

gave no indication that she knew the attacker. Her answer to that question did not

provide guidance for medical treatment, other than to rule out a potential concern

for her safety. K.E.H.’s description of the assailant more closely resembles a

statement one might make in a police interrogation (to assist law enforcement in

identifying and apprehending a suspect) or at trial (to identify the defendant as the

assailant). K.E.H. described the assailant’s height, skin color, and clothing—facts

that had no bearing on her injuries but would be highly relevant to identifying the

person responsible for the rape for further prosecution.

13 For example, Nurse Frey testified that as a sexual assault nurse examiner, she sometimes saw victims of domestic violence, for whom she would also provide medical care and forensic evaluations. If a patient described the assailant as an acquaintance or romantic partner, the medical provider would be on alert about a potential continued danger to the patient and might help the patient arrange for a safe place to go after discharge. See Clark, 576 U.S. at 246-47; Scanlan, 193 Wn.2d at 768-69. When a sexual assault patient describes the assailant as an intimate partner, the statement’s primary purpose might be to guide the provision of medical care or to address an ongoing emergency regarding the patient’s safety upon discharge. See, e.g., Scanlan, 193 Wn.2d at 768-69; see also Bryant, 562 U.S. at 368 (“Victims are also likely to have mixed motives when they make statements to police. During an ongoing emergency, a victim is most likely to want the threat to her and to other potential victims to end, but that does not necessarily mean that the victim wants or envisions prosecution of the assailant. A victim may want the attacker to be incapacitated temporarily or rehabilitated.”). 29 State v. Burke No. 96783-1

K.E.H.’s statement describing the assailant was testimonial. Its primary

purpose was not to guide the medical exam but to identify the person who could be

prosecuted for the sexual assault. The trial court erred in admitting this statement.

However, as discussed below, that error was harmless.

B. Harmless Error

The admission of K.E.H.’s description of the assailant was erroneous but

harmless. Under the constitutional harmless error standard, the State has the burden

of establishing harmless error beyond a reasonable doubt. State v. Guloy, 104 Wn.2d

412, 425, 705 P.2d 1182 (1985). The error is harmless “[i]f the untainted evidence

is so overwhelming that it necessarily leads to a finding of the defendant’s guilt.”

Koslowski, 166 Wn.2d at 431.

K.E.H.’s description of the assailant was relevant only to identifying Burke as

the person who raped her, but it was cumulative evidence of Burke’s identity. Officer

Phan testified that K.E.H. had given him a description of the assailant early in the

morning on July 3, 2009, shortly after the assault. He went straight to the park to

investigate the scene and look for witnesses or someone matching her description,

but he found no one.

Burke was identified as a suspect years later, when the crime lab identified a

match between his DNA and the sample collected from K.E.H.’s underwear. The

forensic DNA analyst testified extensively about the process of testing and matching

30 State v. Burke No. 96783-1

DNA. She testified that the chances of someone other than Burke contributing the

male DNA found on K.E.H.’s underwear was 1 in 170 quadrillion. Even without

K.E.H.’s testimonial description of the assailant, the untainted DNA evidence

identifying Burke as the person who sexually assaulted her was overwhelming.

Although K.E.H.’s description of the assailant was testimonial, it was

harmless error to admit it.

C. Statements Made for the Purpose of Medical Diagnosis or Treatment

Burke also argues that K.E.H.’s statements to the sexual assault nurse

examiner should not have been admitted because they were hearsay and did not fall

under the exception for statements made for the purpose of medical diagnosis or

treatment. When a statement is nontestimonial, “the admissibility of a statement is

the concern of state and federal rules of evidence, not the Confrontation Clause.”

Bryant, 562 U.S. at 359; see also, e.g., Crawford, 541 U.S. at 40 (noting that the

State had invoked ER 804(b)(3) for statements against interest); State v. Ohlson, 162

Wn.2d 1, 9-10, 168 P.3d 1273 (2007) (excited utterances). In order for K.E.H.’s

statements to be admissible, they must be nontestimonial and comply with the rules

of evidence.

An out-of-court statement used to prove the truth of the matter asserted is

inadmissible hearsay under the rules of evidence unless an exception applies. ER

801(c), 802. Statements made for the purposes of medical diagnosis or treatment are

31 State v. Burke No. 96783-1

an exception to the bar on hearsay. ER 803(a)(4) (allowing statements “describing

medical history, or past or present symptoms, pain, or sensations, or the inception or

general character of the cause or external source thereof insofar as reasonably

pertinent to diagnosis or treatment”).

Unlike the objective primary purpose test for the confrontation clause, the test

for statements made for medical diagnosis or treatments considers the subjective

purposes of both the declarant and the medical professional. Compare Bryant, 562

U.S. at 360, with State v. Doerflinger, 170 Wn. App. 650, 664, 285 P.3d 217 (2012).

For the statement to be “reasonably pertinent” to medical diagnosis or treatment

under ER 803(a)(4), the declarant’s motive in making the statement must be to

promote treatment and the medical professional must have relied on it for the

purposes of treatment. Doerflinger, 170 Wn. App. at 664. Statements attributing

fault are generally inadmissible under this exception, but statements “disclosing the

identity of a closely-related perpetrator” may be reasonably pertinent to treatment in

certain situations like domestic violence or sexual abuse “because part of reasonable

treatment and therapy is to prevent recurrence and future injury.” State v. Williams,

137 Wn. App. 736, 746, 154 P.3d 322 (2007).

We review evidentiary rulings for abuse of discretion. Ohlson, 162 Wn.2d at

7-8. “We will not reverse the trial court’s decision ‘unless we believe that no

32 State v. Burke No. 96783-1

reasonable judge would have made the same ruling.’” Id. at 8 (quoting State v.

Woods, 143 Wn.2d 561, 595-96, 23 P.3d 1046 (2001)).

The trial court did not abuse its discretion in admitting most of K.E.H.’s

statements as reasonably pertinent to medical diagnosis or treatment. It is reasonable

to believe that K.E.H.’s motive was to promote treatment and that Nurse Frey relied

on the statements for the purposes of treatment. K.E.H.’s statements about her pain

level, allergies to medication, and need for her crutches had no other purpose than

to receive medical treatment. Her answers to the questions about penetration,

ejaculation, contraception, strangulation, grabbing, and her position during the

assault were also likely motivated by a desire to promote medical treatment specific

to sexual assault. Nurse Frey reviewed the consent agreement with K.E.H. at the

beginning of the exam, which explained the dual purposes of the exam and provided

that written documentation would remain confidential. K.E.H.’s description of the

assault was an answer to the first question Nurse Frey asked when they began the

sexual assault exam. Medical professionals often ask patients how their injuries are

caused, see Scanlan, 193 Wn.2d at 768, and it is reasonable to believe that K.E.H.

understood the question “Can you tell me what happened in Wright Park?” to be the

starting point for a medical exam. Pretrial Mot. Ex. 19E. Similarly, K.E.H.’s

description of the location of the assault was necessary to explain how she arrived at

the hospital in the middle of the night after the assault without her crutches: she was

33 State v. Burke No. 96783-1

unhoused and had been residing in Wright Park, only one block away from Tacoma

General.

Additionally, Nurse Frey relied on K.E.H.’s answers for the purposes of

medical treatment. As she testified, the specific questions she asked K.E.H. guided

the exam. Based on K.E.H.’s answers to these questions, Nurse Frey did not

prescribe medication K.E.H. was allergic to and she examined K.E.H. consistent

with the specific sexual assault acts K.E.H. reported.

A reasonable judge could have concluded that K.E.H.’s motive in making

these statements was to promote medical treatment and that Nurse Frey relied on the

statements to provide medical treatment. The trial court did not abuse its discretion

in admitting these statements as statements made for the purpose of medical

diagnosis or treatment.

The court did abuse its discretion in admitting K.E.H.’s description of the

assailant under this exception. There is no evidence to suggest that K.E.H.’s

description of her assailant was made to promote medical treatment. Although Nurse

Frey sometimes treated victims of domestic violence and could have relied on

K.E.H.’s description to rule out the continued danger of intimate partner violence,

K.E.H. did not seem to know the assailant. 14 In cases where statements attributing

14 See State v. Price, 126 Wn. App. 617, 640, 109 P.3d 27 (2005) (holding that statements a woman made to a doctor, identifying her boyfriend as the person who strangled her, were admissible under ER 804(a)(4) because “a statement attributing fault to an abuser can be 34 State v. Burke No. 96783-1

fault have been admitted under this exception, the declarant disclosed “the identity

of a closely-related perpetrator” who might cause future injury. Williams, 137 Wn.

App. at 746 (citing State v. Ackerman, 90 Wn. App. 477, 482, 953 P.2d 816 (1998);

State v. Sims, 77 Wn. App. 236, 239, 890 P.2d 521 (1995)). Here, there is no

evidence that K.E.H. was motivated to identify a closely related perpetrator who

might pose a continued danger to her; her description of the assailant is more like a

general attribution of fault, which is not reasonably pertinent to medical diagnosis

or treatment. The court abused its discretion in admitting this statement under ER

803(a)(4). However, as explained above, this error was harmless because Burke’s

identity was established through DNA evidence.

D. Legal Financial Obligations

Finally, Burke seeks to have several legal financial obligations stricken from

his sentence, in light of 2018 amendments to the statutes governing legal financial

obligations and this court’s decision in State v. Ramirez, 191 Wn.2d 732, 426 P.3d

714 (2018). Engrossed Second Substitute House Bill 1783, 65th Leg., Reg. Sess.

reasonably pertinent to treatment in domestic assault cases. A physician’s treatment will necessarily differ when the abuser is a member of the victim’s family or household; for example, the treating physician may recommend special therapy or counseling and instruct the victim to remove himself or herself from the dangerous environment by leaving the home and seeking shelter elsewhere” (citation omitted) (citing State v. Sims, 77 Wn. App. 236, 239, 890 P.2d 521 (1995))), abrogated on other grounds by State v. Hampton, 184 Wn.2d 656, 665, 361 P.3d 734 (2015). For similar reasons as discussed under our confrontation clause analysis, see supra note 13, the relationship between the declarant and the assailant may affect the applicability of this hearsay exception. 35 State v. Burke No. 96783-1

(2018) (House Bill 1783) “eliminates interest accrual on the nonrestitution portions

of LFOs, it establishes that the DNA database fee is no longer mandatory if the

offender’s DNA has been collected because of a prior conviction, and it . . . prohibits

imposing the $200 filing fee on indigent defendants.” Ramirez, 191 Wn.2d at 747

(citing LAWS OF 2018, ch. 269, §§ 1, 18, 17). House Bill 1783 became effective on

June 7, 2018, and it applies to legal financial obligations imposed on criminal

defendants whose cases were not yet final when these amendments were enacted. Id.

Burke’s judgment and sentence ordered him to pay a $200 criminal filing fee and a

$100 fee for the collection of DNA, plus interest on these legal financial obligations.

However, the trial court found Burke to be indigent, and his DNA had, in fact,

previously been collected. Thus, the filing fee, the DNA fee, and the interest

provision are no longer authorized for this case, which was still pending when House

Bill 1783 was enacted. Accordingly, we remand to the trial court to amend the

judgment and sentence to strike the requirements to pay the $200 criminal filing fee

and the $100 DNA collection fee, and to amend the interest provisions to reflect that

interest will not accrue on nonrestitution legal financial obligations after June 7,

2018.

III. CONCLUSION

The confrontation clause of the Sixth Amendment protects the right of the

accused to be confronted with witnesses against them, but only out-of-court

36 State v. Burke No. 96783-1

statements that are testimonial implicate this right. Under the circumstances of this

sexual assault exam, nearly all of K.E.H.’s statements to the sexual assault nurse

examiner were nontestimonial; those statements do not implicate the confrontation

clause. Only her description of the assailant was testimonial, but the error in

admitting that statement was harmless. Further, the trial court did not abuse its

discretion in admitting the majority of the statements as statements made for the

purpose of medical diagnosis or treatment, and the error in admitting K.E.H.’s

description of the assailant under that hearsay exception was likewise harmless. We

reverse the Court of Appeals and remand to the trial court for further proceedings in

accordance with this opinion.

37 State v. Burke No. 96783-1

______________________________ Montoya-Lewis, J.

WE CONCUR:

___________________________ ______________________________

38 State v. Burke (Ronald Delester), No. 96783-1 (Gordon McCloud, J., concurring)

No. 96783-1

GORDON McCLOUD, J. (concurring)—Nurses are health care

professionals. Nurses “promot[e] and maintain[] health.”1 Sexual assault nurse

examiners (SANEs) discharge such nursing duties.

But SANEs also perform forensic duties. “Forensic” means “pertaining to,

connected with, or used in courts of law . . . .” 2 In this case, that “connect[ion] with

. . . courts of law” was clear from the evidence: the SANE conducted an exam that

was funded (pursuant to ch. 7.68 RCW) by a state victims compensation fund,

sought evidence that could support a criminal prosecution, and had a patient who

stayed for the exam for the specific purpose of providing such forensic evidence to

aid law enforcement. As a result, the patient—K.E.H.—believed, quite rightly,

1 MERRIAM-WEBSTER ONLINE DICTIONARY, https://www.merriam- webster.com/dictionary/nurse (last visited Jan. 8, 2021); see also What Is Nursing?, AM. NURSES ASS’N, https://www.nursingworld.org/practice-policy/workforce/what-is- nursing/ (last visited Jan. 8, 2021). 2 DICTIONARY.COM, https://www.dictionary.com/browse/forensic# (last visited Jan. 8, 2021); see also MERRIAM-WEBSTER ONLINE DICTIONARY, https://www.merriam- webster.com/dictionary/forensic (“forensic” means “belonging to, used in, or suitable to courts of judicature”) (last visited Jan. 8, 2021). 1 State v. Burke (Ronald Delester), No. 96783-1 (Gordon McCloud, J., concurring)

that her medical care was basically over after her initial emergency room (ER)

evaluation and treatment. She stayed to see the SANE for forensic purposes: to

help make sure the attacker was not “out there doing this to someone else.” 6

Verbatim Transcript of Proceedings (VTP) (Nov. 3, 2016) at 622.

The fact that that forensic exam was conducted by a trained, professional,

compassionate member of the medical profession, rather than by a law

enforcement officer, is a significant advance for patient care—an advance that is

particularly important for those rape victims who lack the ability to advocate

strongly for themselves. But we are not presented with a medical care question;

we are presented with a legal question. The legal question that the confrontation

clause3 compels us to ask is whether the statements elicited by the SANE, to help

prevent the person who raped K.E.H. from “doing this to someone else,” are

testimonial—i.e., made primarily to help law enforcement and prosecution—or

nontestimonial —i.e., made primarily for medical treatment.

The majority answers this question by focusing on each separate statement

K.E.H. made and looking at the character of that statement. I respectfully disagree

with this approach. I think that controlling decisions of the United States Supreme

Court compel us to look at the overall purpose of the discussion/interrogation first

3 U.S. CONST. amend. VI. 2 State v. Burke (Ronald Delester), No. 96783-1 (Gordon McCloud, J., concurring)

and consider each statement in that context. And in this case, that contextual

analysis shows that K.E.H.’s statements to the SANE were made in anticipation of

prosecuting the rapist; hence, they were testimonial for Sixth Amendment

purposes. I concur, however, because the admission of the testimonial statements

was harmless beyond a reasonable doubt.

I. K.E.H.’s Statements to SANE Kay Frey during the Forensic Examination Were Testimonial

A. To Determine Whether K.E.H.’s Statements to the SANE Were Testimonial, We Focus on the Context of the Entire Forensic Exam

The confrontation clause of the Sixth Amendment guarantees that “[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to be confronted with

the witnesses against him.” U.S. CONST. amend. VI. “Witnesses” are those who

“‘bear testimony.’” Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct. 1354, 158

L. Ed. 2d 177 (2004) (quoting 2 NOAH WEBSTER, AN AMERICAN DICTIONARY OF

THE ENGLISH LANGUAGE (1828)). Thus, out-of-court testimonial statements are

inadmissible at trial against a criminal defendant if the declarant is “‘unavailable to

testify,’” unless “‘the defendant had had a prior opportunity for cross-

examination.’” Davis v. Washington, 547 U.S. 813, 821, 126 S. Ct. 2266, 165 L.

Ed. 2d 224 (2006) (quoting Crawford, 541 U.S. at 53-54). I agree with the

majority on all of these points.

3 State v. Burke (Ronald Delester), No. 96783-1 (Gordon McCloud, J., concurring)

The majority is also correct in holding that we use the primary purpose test

to determine whether such out-of-court statements are testimonial. Majority at 2

(citing Ohio v. Clark, 576 U.S. 237, 245, 135 S. Ct. 2173, 192 L. Ed. 2d 306

(2015); State v. Scanlan, 193 Wn.2d 753, 766, 445 P.3d 960 (2019), cert. denied,

140 S. Ct. 834 (2020)).

But controlling United States Supreme Court precedent makes clear that the

primary purpose test focuses on the purpose “of the interrogation,” Davis, 547

U.S. at 822 (emphasis added)—not on a single question and answer within that

interrogation. The individual statements made during the course of an

interrogation are, of course, relevant to determining the primary purpose of that

interrogation. Courts must, however, focus on the overall context. Clark, 576 U.S.

at 249.

The Supreme Court clearly adopted this approach because of the concerns

that led to the adoption of the confrontation clause in the first place. In Crawford,

for example, the Court traced the history of the development of the confrontation

right at English common law and in early America and concluded 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

4 State v. Burke (Ronald Delester), No. 96783-1 (Gordon McCloud, J., concurring)

evidence against the accused”; it then directed that “[t]he Sixth Amendment must

be interpreted with this focus in mind.” Crawford, 541 U.S. at 50.

“This focus” is a focus on the overall procedure by which the state obtains

statements from its witnesses. With that focus, the Supreme Court has consistently

emphasized that trial courts must determine not whether the primary purpose of a

specific statement in isolation is testimonial but, rather, whether “the primary

purpose of the interrogation is to establish or prove past events potentially relevant

to later criminal prosecution.” Davis, 547 U.S. at 822 (emphasis added); see also

Clark, 576 U.S. at 249 (“[c]ourts must evaluate challenged statements in context”

in conducting a primary purpose analysis); Michigan v. Bryant, 562 U.S. 344, 370,

131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011) (courts “should determine the primary

purpose of the interrogation by objectively evaluating the statements and actions of

the parties to the encounter, in light of the circumstances in which the interrogation

occurs” (internal quotation marks omitted)).

The majority, however, focuses on each individual statement within the

interrogation. For example, the majority initially explains that “[t]o determine

whether a statement is testimonial, we must identify its primary purpose,” and then

concludes that “under these circumstances, the primary purpose of nearly all of

[K.E.H.’s] statements” was nontestimonial. Majority at 2 (emphasis added). It

5 State v. Burke (Ronald Delester), No. 96783-1 (Gordon McCloud, J., concurring)

continues, “[S]tatements are nontestimonial when they have another primary

purpose,” and “[u]nder these circumstances, most of K.E.H.’s statements cannot be

characterized as primarily testimonial.” Id. at 15, 27 (emphasis added).

To be sure, the majority also quotes Davis for the rule that statements “‘are

testimonial when the circumstances objectively indicate that . . . the primary

purpose of the interrogation is to establish or prove past events potentially relevant

to later criminal prosecution.’” Id. at 13 (alteration in original) (emphasis added)

(quoting Davis, 547 U.S. at 822); see also id. at 14. But the majority does not

distinguish between this contextual approach and its other, largely statement-by-

statement, approach.

These two different approaches, however, are not interchangeable.

Conflating them deemphasizes the importance of the structural context in which a

conversation takes place. Davis, 547 U.S. at 821; Crawford, 541 U.S. at 52

(statements are testimonial where they “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” (emphasis added) (internal quotation marks

omitted)).

This is not the first time that the Supreme Court has held that a “context”

approach sheds more light on the character of a statement than a “statement-by-

6 State v. Burke (Ronald Delester), No. 96783-1 (Gordon McCloud, J., concurring)

statement” approach does. In Missouri v. Siebert, for example—a Fifth

Amendment (rather than a Sixth Amendment) case—the Court examined the

constitutionality of a police interrogation strategy that divided up the interrogation

of a criminal suspect into two parts. 542 U.S. 600, 616, 124 S. Ct. 2601, 159 L. Ed.

2d 643 (2004); U.S. CONST. amend. V. In part one, officers would withhold

Miranda 4 warnings and question the suspect up to the point of a confession; in part

two, officers would give the already-confessing suspect Miranda warnings and

elicit a repetition of the confession. Id. at 616-17. The Court held that such a two-

part interrogation strategy made the belated Miranda warnings ineffective. Id.

Hence, the Court concluded, the defendant’s confession repeated after the belated

warnings must be suppressed. Id. at 617. This was a commonsense approach that

appreciated procedural context in determining the character of a declarant’s

statements within that context.

The Sixth Amendment confrontation clause also provides a procedural

protection. Thus, it is not surprising that the Supreme Court has also emphasized

the importance of the procedural context to determining the character of a

declarant’s statements for Sixth Amendment purposes. In particular, the Supreme

Court requires us to maintain an overall focus on the identity of the interrogator,

4 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 7 State v. Burke (Ronald Delester), No. 96783-1 (Gordon McCloud, J., concurring)

their links to law enforcement, and whether the conversation was the result of a

formal procedure. Clark, 576 U.S. at 249 (“Courts must evaluate challenged

statements in context, and part of that context is the questioner’s identity.” (citing

Bryant, 562 U.S. at 369)).

It is certainly true that a single conversation may contain some statements

that are made primarily to help prosecute a suspect and some statements that are

made primarily for medical treatment or other reasons. But courts can’t determine

the testimonial or nontestimonial character of each statement by zooming in on its

language. Instead, we view those statements in context—and ask whether in

context, the entire conversation has shifted from nontestimonial to testimonial or

back again. In Davis, for example, the Court reviewed a 911 call that began with

the 911 operator asking questions to determine the need for emergency assistance.

547 U.S. at 828. Such questions would not typically produce testimonial answers.

But the Court continued, explaining that the answers can “‘evolve into testimonial

statements’” once the original purpose of meeting the emergency is met. Id.

(quoting Hammon v. Indiana, 829 N.E.2d 444, 457 (2005), rev’d by Davis, 547

U.S. 813); see also State v. Koslowski, 166 Wn.2d 409, 419, 209 P.3d 479 (2009)

(citing Davis, 547 U.S. at 828). The focus, however, remained on the purpose of

the questions and answers in the context of the full conversation.

8 State v. Burke (Ronald Delester), No. 96783-1 (Gordon McCloud, J., concurring)

B. In Focusing on the Context of the Entire Forensic Exam, We Evaluate Four Main Factors—All Point toward K.E.H.’s Statements Being Testimonial

To evaluate that context (and whether it changed from testimonial to

nontestimonial), we use the primary purpose test set forth by the Supreme Court

and adopted by this court. “Under the primary purpose test, courts objectively

evaluate the circumstances in which the encounter occurs, as well as the parties’

statements and actions.” Scanlan, 193 Wn.2d at 767 (emphasis added) (citing

Bryant, 562 U.S. at 359). “‘[T]he question is whether, in light of all the

circumstances, viewed objectively, the “primary purpose” of the conversation was

to “creat[e] an out-of-court substitute for trial testimony.”’” Id. (second alteration

in original) (emphasis added) (quoting Clark, 576 U.S. at 245 (quoting Bryant, 562

U.S. at 358)). Statements are testimonial only when “the primary purpose of the

interrogation is to establish or prove past events potentially relevant to later

criminal prosecution.” Id. at 763 (some emphasis omitted) (quoting Davis, 547

U.S. at 822).

Here, four main factors make clear that the objective primary purpose of the

examination was to establish or prove past events potentially relevant to later

criminal prosecution: (1) the objective manifestation of K.E.H.’s intent in

undergoing the exam, (2) the objective manifestation of Frey’s intent in conducting

9 State v. Burke (Ronald Delester), No. 96783-1 (Gordon McCloud, J., concurring)

the exam, in light of the history and purpose of SANE nursing and the Washington

statutory scheme, (3) the lack of ongoing emergency, evidenced by the bifurcated

nature of the exam, and (4) the exam’s formality.

1. K.E.H.’s Intent

The declarant’s purpose in engaging in a conversation is a critically

important factor to consider. Clark, 576 U.S. at 247-48 (one factor in determining

whether 3-year-old child’s statements to his teachers were testimonial was the

child’s ability to form the intent that his statements be used by police or

prosecutors or as a substitute for trial testimony); Davis, 547 U.S. at 827 (intent of

victim in making a 911 call was factor bearing on whether statements on the call

were testimonial).

In this case, as the majority explains, K.E.H. was medically cleared by the

emergency department around 11 AM on July 3. 6 VTP (Nov. 3, 2016) at 603. By

this time, her case had already been reported to Tacoma police and K.E.H. had

provided them with a statement. 8 VTP (Nov. 8, 2016) at 836-38, 841. K.E.H.

then chose to wait in the hospital for almost five hours to undergo a sexual assault

examination. That exam was conducted by SANE Frey at around 4 PM. 6 VTP

(Nov. 3, 2016) at 605.

10 State v. Burke (Ronald Delester), No. 96783-1 (Gordon McCloud, J., concurring)

K.E.H. made clear to Frey that her goal for the exam—the reason she waited

hours for it in the hospital—was to prevent her attacker from being “out there

doing this to someone else.” Id. at 622; Pretrial Mot. Ex. 19F. In fact, K.E.H. told

Frey that this reason was “basically why she came.” 6 VTP (Nov. 3, 2016) at 622.

K.E.H.’s goal was reflected in her actions leading up to the SANE exam.

K.E.H. signed a consent form specifying that she was consenting to “a forensic

evaluation to be performed by a Forensic Nurse Examiner to include

documentation of the assault, collection of evidence, nursing care and treatment

limited to MultiCare Health System’s Forensic Nurse Examiner nursing

protocols.” Pretrial Mot. Ex. 19B (emphasis added); 6 VTP (Nov. 3, 2016) at 606.

The form indicated that “[a] forensic evaluation does not include general medical

care.” Pretrial Mot. Ex. 19B (emphasis added); 6 VTP (Nov. 3, 2016) at 557. It

explained that “evidence such as swabs, blood, hair, nail samples may be

collected” and that “in assault cases that have been reported to law enforcement,

the forensic nurse examiner may speak to the investigating officer.” 6 VTP (Nov.

3, 2016) at 558; Pretrial Mot. Ex. 19B. It noted that the “detailed medical records

(photographs, lab results, written documentation)” would be kept confidential but

could be disclosed “as allowed by law.” Pretrial Mot. Ex. 19B (emphasis omitted).

11 State v. Burke (Ronald Delester), No. 96783-1 (Gordon McCloud, J., concurring)

A discharge form given to K.E.H. after the examination 5 similarly explained

that K.E.H. had just undergone a forensic evaluation for “collection of evidence for

investigative purposes.” 6 VTP (Nov. 3, 2016) at 561; Pretrial Mot. Ex. 19I. It

further stated, “If your assault was reported to the police, your evidence will be

transferred directly to Tacoma Police Department.” 6 VTP (Nov. 3, 2016) at 561;

Pretrial Mot. Ex. 19I.

Viewed objectively, K.E.H.’s statement to Frey, coupled with her

knowledge of the forensic purpose of the examination as described on the consent

and discharge forms, indicates that her primary purpose in engaging in the

examination was not to seek medical treatment but to assist in evidence collection

that could be used to ensure her attacker did not “do[] this to someone else.” 6 VTP

(Nov. 3, 2016) at 622; Pretrial Mot. Ex. 19F.

2. SANE Frey’s Intent

The intent of Frey, viewed objectively, is also an important factor to

consider in determining whether K.E.H.’s out-of-court statements are testimonial.

5 Frey testified that she had not been able to retain a copy of the discharge form signed by K.E.H. because K.E.H. “took both copies, originally,” and Frey had to fill out another copy for her own records. 6 VTP (Nov. 3, 2016) at 561. Because of this, Frey could not confirm that K.E.H. had signed the discharge form, but Frey testified that she had given the form to K.E.H. and that it was common practice for the patient to sign the discharge form because “there’s a place for the patient to sign it.” Id. at 562. 12 State v. Burke (Ronald Delester), No. 96783-1 (Gordon McCloud, J., concurring)

“Courts must evaluate challenged statements in context, and part of that context is

the questioner’s identity.” Clark, 576 U.S. at 249 (citing Bryant, 562 U.S. at 369).

Statements made to a questioner who “is not principally charged with uncovering

and prosecuting criminal behavior are significantly less likely to be testimonial

than statements given to law enforcement officers.” Id. However, the Court has

expressly declined to adopt a categorical rule excluding statements to nonpolice

questioners as beyond the reach of the confrontation clause. Id. at 246.

Here, Frey’s identity as a SANE colors the entire interaction and each

statement within it. An overview of the development of SANE nursing shows that

the primary purpose of a SANE’s interrogation in general is “to establish or prove

past events potentially relevant to later criminal prosecution.” Davis, 547 U.S. at

822.

The SANE specialization falls within the field of forensic nursing. What is

Forensic Nursing?, INT’L ASS’N OF FORENSIC NURSES,

https://www.forensicnurses.org/page/WhatisFN [https://perma.cc/D4H5-B3LV].

Thus, SANEs may also be referred to as forensic nurses or forensic nurse

examiners. 6 SANE programs were developed in response to “the inadequacy of the

6 Frey testified that her job title was “forensic nurse examiner.” 6 VTP (Nov. 3, 2016) at 554. Tacoma General Hospital also refers to its “Forensic Nurse Examiner 13 State v. Burke (Ronald Delester), No. 96783-1 (Gordon McCloud, J., concurring)

medical evidentiary examination.” Linda A. Hutson, Development of Sexual

Assault Nurse Examiner Programs, 37 NURSING CLINICS OF N. AM. 79, 84 (2002)

(hereinafter Development of SANE Programs). The first such programs were

developed in the 1970s, when “[m]any hospitals did not have a rape protocol” and

“[s]ome hospital personnel were afraid of the forensic component of evidence

collection.” Linda E. Ledray & Sherry Arndt, Examining the Sexual Assault

Victim: A New Model for Nursing Care, 32 J. PSYCHOSOCIAL NURSING & MENTAL

HEALTH SERVS. 7, 8 (1994) (hereinafter Examining the Sexual Assault Victim).

SANE programs thus were developed to address two main problems: that

untrained hospital staff retraumatized sexual assault victims when conducting

physical examinations, and that lack of training in the collection and preservation

of evidence specifically posed a problem for future prosecutions. Development of

SANE Programs at 84; see also Examining the Sexual Assault Victim at 8. Further,

“when evidence was collected by hospital staff, [that staff was] often unavailable

to law enforcement for the continuation of the investigation and prosecution of a

sexual assault case.” Development of SANE Programs at 79; see also Examining

the Sexual Assault Victim at 7.

service.” See Sexual Assault Services, MULTICARE, https://www.multicare.org/sexual- assault-services/ [https://perma.cc/TNJ6-983M]. 14 State v. Burke (Ronald Delester), No. 96783-1 (Gordon McCloud, J., concurring)

By contrast, SANEs are trained in “forensic evidence collection, sexual

assault trauma response, forensic techniques using special equipment, expert-

witness testimony, assessment and documentation of injuries, identifying patterned

injury, and maintenance chain of evidence.” Debra Patterson, Rebecca Campbell &

Stephanie M. Townsend, Sexual Assault Nurse Examiner (SANE) Program Goals

and Patient Care Practices, 38 J. NURSING SCHOLARSHIP 180, 181 (2006). While

providing compassionate medical care to sexual assault survivors has always been

an integral component of SANE nursing, “[t]he primary goal of the SANE is to

provide objective forensic evaluation of the survivors of sexual assault.”

Development of SANE Programs at 84.

SANE programs and nurses, then, frequently work closely with police and

prosecutors, even where they do not work directly for the police. Examining the

Sexual Assault Victim at 8. Here, Frey testified that she was employed by

MultiCare, the health care entity that operates Tacoma General Hospital. 6 VTP

(Nov. 3, 2016) at 548. Frey was not a law enforcement “official.” State v. Burke, 6

Wn. App. 2d 950, 969 n.4, 431 P.3d 1109 (2018). But the Supreme Court has made

clear that people conducting interrogations on behalf of the police may be

considered law enforcement agents for purposes of the confrontation clause

15 State v. Burke (Ronald Delester), No. 96783-1 (Gordon McCloud, J., concurring)

analysis.7 Indeed, some courts have recognized the close ties between SANEs and

law enforcement and have held that the primary purpose of SANE sexual assault

interviews is testimonial as a matter of law. 8

In addition, in this case, the cost of the SANE exam was covered by the

State pursuant to state statute. That statute, RCW 7.68.170, provides:

No costs incurred by a hospital or other emergency medical facility for the examination of the victim of a sexual assault, when such examination is performed for the purposes of gathering evidence for possible prosecution, shall be billed or charged directly or indirectly to the victim of such assault. Such costs shall be paid by the state pursuant to this chapter.

(Emphasis added.) The administrative code further explains that

7 See Davis, 547 U.S. at 823 n.2 (911 operators may be police agents when they conduct interrogations of callers). 8 Hartsfield v. Commonwealth, 277 S.W.3d 239, 244 (Ky. 2009) (“We believe their function of evidence gathering, combined with their close relationships with law enforcement, renders SANE nurses’ interviews the functional equivalent of police questioning.”); see also Medina v. State, 122 Nev. 346, 354-55, 143 P.3d 471 (2006) (defining a SANE as a “police operative” because she “gathers evidence for the prosecution for possible use in later prosecutions,” thus leading “an objective witness to reasonably believe that the statements would be available for use at a later trial”). Courts that have declined to adopt a per se rule regarding the primary purpose of SANE examinations have still found that a SANE acted as a law enforcement agent when acting in her evidence-collecting role. See, e.g., State v. Bennington, 293 Kan. 503, 523, 264 P.3d 440 (2011) (SANE asked victim questions from state-provided questionnaire as part of completion of sexual assault evidence collection kit); State v. Miller, 293 Kan. 535, 578, 264 P.3d 461 (2011) (same); People v. Vargas, 178 Cal. App. 4th 647, 662, 100 Cal. Rptr. 3d 578 (2009) (SANE who examined victim hours after assault did so “for the primary purpose of documenting the nature of the sexual assault and gathering evidence for transmittal to the police and for possible later use in court”). 16 State v. Burke (Ronald Delester), No. 96783-1 (Gordon McCloud, J., concurring)

[w]hen a sexual assault examination is performed for the purpose of gathering evidence for possible prosecution, the costs of the examination must be billed to the crime victims compensation program. We are the primary payer of this benefit. The client is not required to file an application with us to receive this benefit and may not be billed for these costs. If the examination includes treatment costs or the client will require follow-up treatment, an application for benefits must be filed with us for these services to be considered for payment.

WAC 296-30-170 (emphasis added). Under Washington state law, the conclusion

seems inescapable that a SANE exam that is eligible for reimbursement by the

State is a SANE exam “performed for the purposes of gathering evidence for

possible prosecution.”

Consistent with the general statutory purpose of such SANE exams, the

consent form K.E.H. signed before the exam noted that “[a] forensic exam is

available to me at public expense, if eligible, according to RCW 7.68.170.” Pretrial

Mot. Ex. 19B. Frey confirmed that the exam was funded by the State. 6 VTP (Nov.

3, 2016) at 558. The hospital’s act of obtaining that funding from the State

indicates that a representation was made that the “examination [was] performed for

the purposes of gathering evidence for possible prosecution.” RCW 7.68.170.

Thus, while a SANE’s specialization may not “transform a class of medical

professionals into agents of the police,” majority at 19, the field of SANE nursing

17 State v. Burke (Ronald Delester), No. 96783-1 (Gordon McCloud, J., concurring)

has unique links to law enforcement, prosecution, and evidence collection that

distinguish it from other areas of medicine.

Indeed, the forensic purpose of SANEs distinguishes this case from Scanlan,

our recent confrontation clause case cited by the majority. 193 Wn.2d 753. In that

case, an elder abuse victim made statements to various medical providers

identifying the perpetrator and describing the cause of his injuries. Id. at 768. After

his ER visit, that victim signed release forms authorizing police and prosecutors to

obtain his medical records “in furtherance of the investigation and any resulting

prosecution.” Id. at 770, 775 (internal quotation marks omitted). We recognized

that obtaining medical treatment was a nontestimonial primary purpose,

acknowledging that “[a]s a threshold matter, [the victim’s] statements are

‘significantly less likely to be testimonial than statements given to law enforcement

officers’ because medical personnel are ‘not principally charged with uncovering

and prosecuting criminal behavior.’” Scanlan, 193 Wn.2d at 767 (quoting Clark,

576 U.S. at 249). And that was true of the medical providers in Scanlan, including

ER personnel, the victim’s primary care physician, and wound treatment

specialists, id. at 757; none of these fields of medical practice were developed with

a dual forensic and medical purpose, so the victim would have seen these same

18 State v. Burke (Ronald Delester), No. 96783-1 (Gordon McCloud, J., concurring)

professionals for emergency or follow-up care, regardless of whether he had signed

release forms or sought to press charges.

Frey, in contrast, did not provide general medical care—only medical care

“specific to . . . sexual assault.” 6 VTP (Nov. 3, 2016) at 565. In fact, she explained

that only the emergency department provided general medical care—“things like . .

. a full evaluation by the emergency room physician and any testing that might be

needed, that’s medical care done by the emergency department”—and that “[o]nce

[the victim is] cleared from that, then the forensic piece starts. So even though

medications are given by me at the end, based on protocols and such . . . the

overall medical responsibility is the emergency room provider.” Id. at 564

(emphasis added). K.E.H. was directed to follow up not with Frey but with Planned

Parenthood and to return to the ER if bleeding continued. Id. at 644; Pretrial Mot.

Ex. 19I.

To be sure, Frey’s exam had both medical and forensic purposes. 6 VTP

(Nov. 3, 2016) at 545. But consistent with her profession, she described an

overwhelmingly forensic purpose. Indeed, much of Frey’s testimony described the

forensic components of the exam, including photographing injuries and “doing any

DNA [deoxyribonucleic acid] retrieval that could be done.” Id. She described at

length the subsequent procedures she followed to package and preserve evidence,

19 State v. Burke (Ronald Delester), No. 96783-1 (Gordon McCloud, J., concurring)

including maintaining a chain of custody. Id. at 545, 550, 551, 559-60, 645-46.

And notably, she described “taking a [patient] history” as part of “the forensic

piece.” Id. at 545. She testified that the patient history helps the nurse know where

to look for evidence. Id. at 567.

The majority highlights the fact that Frey’s examination uncovered an

internal injury that had not previously been discovered by ER personnel. Majority

at 25-26; 6 VTP (Nov. 3, 2016) at 547. But it is not disputed that Frey’s duties

included medical treatment as well as forensic evidence collection, and Frey’s

discovery of this additional injury does not negate the fact that under these

circumstances, the primary purpose of this examination by a forensic nurse was to

collect evidence. The physical evidence collected was indisputably collected and

preserved for forensic purposes. 6 VTP (Nov. 3, 2016) at 559. The verbal

statements elicited from K.E.H. in order to facilitate the collection of that physical

evidence were equally testimonial—made with the primary purpose of “creating

evidence for [the defendant’s] prosecution.” Clark, 576 U.S. at 246 (explaining, by

contrast, that a conversation between a 3-year-old and his teachers who were

concerned about the possibility of child abuse at home did not have the primary

purpose of “creating evidence for . . . prosecution”). Thus, as a SANE charged with

collecting and preserving evidence in a form that could be used at a criminal trial,

20 State v. Burke (Ronald Delester), No. 96783-1 (Gordon McCloud, J., concurring)

Frey’s role was much closer to “uncovering and prosecuting criminal behavior,” id.

at 249, than were the roles of the medical personnel in Scanlan.

3. No Ongoing Emergency

The fact that there was no ongoing emergency at the time K.E.H. presented

to Frey is also a highly relevant factor “‘that informs the ultimate inquiry regarding

the “primary purpose” of an interrogation.’” Id. at 245 (quoting Bryant, 562 U.S.

at 366). For example, in Clark, the Court found it important that the teachers who

questioned the child regarding his bruises acted in response to an ongoing

emergency, namely whether it was safe to release the child into the custody of a

potentially abusive caregiver. Id. at 247. And in Scanlan, our court emphasized

that the statements to the medical personnel who treated the victim needed to be

analyzed in light of the fact that the providers were concerned with a similar

ongoing emergency—whether the victim would be safe upon returning home, since

his abuser was his live-in partner. 193 Wn.2d at 768-69.

Here, there was no such ongoing emergency. K.E.H.’s attacker was a

stranger, and thus, there was no similar concern that K.E.H. would be released

back into the control of an abusive partner or family member. K.E.H. had been

medically cleared by the emergency room and chose to wait for five hours to speak

with and be examined by the SANE. The bifurcated nature of the exam into an

21 State v. Burke (Ronald Delester), No. 96783-1 (Gordon McCloud, J., concurring)

emergency medical treatment component and a forensic examination component

further supports that the primary purpose of the interaction with the SANE was

testimonial. See, e.g., State v. Bennington, 293 Kan. 503, 518, 264 P.3d 440 (2011)

(statements made to SANE testimonial where victim was first questioned about

assault in presence of police officer and underwent examination afterward); State

v. Cannon, 254 S.W.3d 287, 305 (Tenn. 2008) (statements made to sexual assault

nurse were testimonial when emergency room medical professionals had examined

and treated the victim before she spoke to the nurse); State v. Hooper, 145 Idaho

139, 145-46, 176 P.3d 911 (2007) (statements made to forensic nurse at sexual

trauma center were testimonial when medical examination by physician had first

been conducted); United States v. Gardinier, 65 M.J. 60, 65-66 (2007) (statements

made to SANE were testimonial when made during a forensic medical examination

performed several days after the victim had been treated by other medical

professionals); United States v. Bordeaux, 400 F.3d 548, 556 (8th Cir. 2005)

(statements made to “forensic interviewer” were testimonial where a physician

separately provided victim with comprehensive medical care).

4. Formality of Examination

Finally, Crawford and its progeny make very clear that procedural formality

is an important factor in determining whether an interrogation has produced

22 State v. Burke (Ronald Delester), No. 96783-1 (Gordon McCloud, J., concurring)

testimonial statements. Crawford, 541 U.S. at 51; Davis, 547 U.S. at 827 (level of

formality of the conversation was important factor in determining that 911 call was

not testimonial); Bryant, 562 U.S. at 377 (“This situation is more similar, though

not identical, to the informal, harried 911 call in Davis than to the structured,

station-house interview in Crawford.”); Clark, 576 U.S. at 247 (“This was nothing

like the formalized station-house questioning in Crawford or the police

interrogation and battery affidavit in Hammon[9].”).

Frey emphasized that her examination was conducted according to a formal

forensic procedure, that is, MultiCare’s SANE protocol. 6 VTP (Nov. 3, 2016) at

545, 547, 550, 557, 564, 565, 645-46. In accordance with this protocol, Frey first

had K.E.H. sign the consent form and then proceeded to obtain a patient history.

Id. at 597. Frey asked an open-ended question to begin the patient history

documentation: “Can you tell me what happened in Wright[ ] Park?” Id. at 549,

611. This all followed that formal protocol. Id. at 545. Frey then completed

standard forms requiring her to ask a series of “more targeted questions” to K.E.H.

regarding the assault. 6 VTP (Nov. 3, 2016) at 613-17; Pretrial Mot. Exs. 19C,

19D. Frey next performed a head-to-toe physical exam, followed by a genital

9 Hammon v. Indiana, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006), was decided along with Davis. 23 State v. Burke (Ronald Delester), No. 96783-1 (Gordon McCloud, J., concurring)

exam. 6 VTP (Nov. 3, 2016) at 626, 631. She took swabs and collected evidence

according to protocol, eventually placing the completed rape kit into a refrigerator

to be picked up by police. Id. at 648-49. This structured, step-by-step procedure

much more closely resembles “formalized station-house questioning” by police

than it does an informal conversation between a preschool student and his teachers

or a frenzied 911 call made while the caller was still in immediate danger. Clark,

576 U.S. at 247; compare id. and Davis, 547 U.S. at 827, with Crawford, 541 U.S.

at 51; see also Dylan O. Keenan, Confronting Crawford v. Washington in the

Lower Courts, 122 YALE L.J. 782, 831 (2012) (“SANE nurses are trained to collect

evidence and assess sexual assault. Their structured questioning has much more in

common with the ex parte examinations that concerned the Framers than does the

conduct of a police officer who arrives along with the ambulance. Lower courts, by

excluding testimony from SANE nurses . . . are hewing closely to Crawford’s

contours.”).

In sum, the overall character of the SANE exam, following the ER exam,

was forensic: to develop evidence for potential use at trial. That character of the

exam remained the same from beginning to end. The compassion and skill with

which Frey treated the patient did not change that purpose. In fact, those qualities

made it easier for Frey to achieve that forensic purpose.

24 State v. Burke (Ronald Delester), No. 96783-1 (Gordon McCloud, J., concurring)

II. Admission of the Statements Was Harmless beyond a Reasonable Doubt

As a result, Frey elicited and then testified about numerous statements

K.E.H. made during the exam. Frey read the jury a statement K.E.H. made to her

that Frey had recorded on a form labeled “Forensic Evaluation: Patient Narrative”:

“I was sitting there rolling myself a cigarette. I know he covered my mouth because I would have been screaming for help. I was taken to the ground. I don’t know if he tried choking me or not. The next thing I knew, I was taken to the ground, my pants were off and stuff, and he was inside me. It was over and done with. I think he told me to keep my mouth shut. That’s all I remember. Then I came here. I walked over to the hospital.”

6 VTP (Nov. 3, 2016) at 612; Pretrial Mot. Ex. 19E. Frey also read K.E.H.’s

description of her assailant into the record: “‘He was tall, a light black, no hair or

short hair. He had a white t-shirt and jeans. No jacket.’” 6 VTP (Nov. 3, 2016) at

614. Frey also testified as to K.E.H.’s answers to standardized questions included

on the “Forensic Evaluation: Patient History A” and “B” forms. Id. at 614-17;

Pretrial Mot. Exs. 19C, 19D. These questions included whether the attacker had

used weapons or threats, whether there was any “grabbing, grasping, or holding”

during the incident, whether penetration occurred, whether contraception was used,

K.E.H.’s position during the assault, and K.E.H.’s pain level and areas of pain. 6

VTP (Nov. 3, 2016) at 614-21.

25 State v. Burke (Ronald Delester), No. 96783-1 (Gordon McCloud, J., concurring)

Although these statements may have been relevant to medical treatment, the

primary purpose of the questions Frey posed in the context of this sexual assault

examination was “to establish or prove past events potentially relevant to later

criminal prosecution.” Davis, 547 U.S. at 822. The objective manifestations of

forensic intent evidenced by both parties, the specific history and purpose of SANE

nursing, the lack of ongoing emergency, and the high level of formality of the

exam make this clear. Thus, admission of all of these out-of-court statements—not

just the statement of identity cited by the majority—violated the confrontation

clause.

A violation of the Sixth Amendment is constitutional error. A constitutional

error is harmless only if the State proves “beyond a reasonable doubt [that] any

reasonable jury would reach the same result absent the error, and where the

untainted evidence is so overwhelming it necessarily leads to a finding of guilt.”10

Ronald Burke was charged with rape in the second degree, which required

the jury to find beyond a reasonable doubt that he had engaged in sexual

intercourse by forcible compulsion with K.E.H. Clerk’s Papers at 85. Here, even

10 State v. Easter, 130 Wn.2d 228, 242, 922 P.2d 1285 (1996) (citation omitted) (citing State v. Aumick, 126 Wn.2d 422, 430, 894 P.2d 1325 (1995); State v. Whelchel, 115 Wn.2d 708, 728, 801 P.2d 948 (1990)); see Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). 26 State v. Burke (Ronald Delester), No. 96783-1 (Gordon McCloud, J., concurring)

without K.E.H.’s statements, the jury was presented with overwhelming evidence

that sexual intercourse had occurred. Evidence of semen was found in K.E.H.’s

underwear. 7 VTP (Nov. 7, 2016) at 723. K.E.H.’s genital exam also revealed

evidence consistent with sexual intercourse. 6 VTP (Nov. 3, 2016) at 641, 643.

I agree with the majority that the jury also heard overwhelming evidence

that Burke was the source of the semen. Evidence was introduced that Burke lived

near Wright Park in 2009 and had been to the park. 8 VTP (Nov. 8, 2016) at 807-

08. Prior to describing the assailant to Frey, K.E.H. had described his appearance

to an investigating officer after she arrived at the hospital on the night of July 3,

2009. Id. at 843. Later, a DNA sample obtained from K.E.H.’s underwear during

the forensic exam was matched to Burke’s DNA, and the jury heard detailed

testimony from a DNA analyst explaining the very low likelihood that the DNA

belonged to anyone other than Burke. 7 VTP (Nov. 7, 2016) at 745; see majority at

30-31. Thus, the admission of the testimonial statements was harmless as to

Burke’s identity and the fact of intercourse.

The State also presented overwhelming evidence of forcible compulsion

even without K.E.H.’s testimonial statements. K.E.H. showed up at the hospital

late at night, “very upset” and crying, with “leaves and grass in her hair.” 8 VTP

(Nov. 8, 2016) at 855. She reported to an ER nurse and a social worker that she

27 State v. Burke (Ronald Delester), No. 96783-1 (Gordon McCloud, J., concurring)

had been raped in Wright Park, and the admissibility of these statements has not

been challenged. 7 VTP (Nov. 7, 2016) at 689; 8 VTP (Nov. 8, 2016) at 856.

K.E.H. described her assailant and the place in the park where the attack had

occurred to the officer who was dispatched to the hospital, and those statements

were also admitted without objection. 8 VTP (Nov. 8, 2016) at 841. The defendant

did not testify; K.E.H.’s testimony on these points was undisputed.

In the unchallenged portion of her testimony, Frey also described her

observations of K.E.H., including injuries she documented during the forensic

examination. K.E.H. had suffered a cervical laceration which was still “actively

bleeding.” 6 VTP (Nov. 3, 2016) at 643. Frey testified that having done hundreds

of pelvic exams over the course of her career, this type of cervical injury was very

unusual. Id. In fact, she testified that she had never seen this type of cervical injury

occurring even with forcible consensual sex. Id. at 659. Thus, Frey testified that the

cervical laceration was consistent with forcible, nonconsensual intercourse. Id. at

643 (“I would say ‘no’ to this being a consensual thing. It’s hard to do this to a

tough muscle.”). This was so even considering K.E.H.’s postmenopausal status and

28 State v. Burke (Ronald Delester), No. 96783-1 (Gordon McCloud, J., concurring)

the possibility that she could have been suffering from the beginning stages of the

cervical cancer that was a probable cause of her 2011 death. Id. at 657, 660-63. 11

Based on the properly admitted evidence, the State proved beyond a

reasonable doubt that admission of the testimonial statements was harmless.

SANEs provide an extremely valuable service to survivors of sexual assault.

But that does not mean that out-of-court statements SANEs elicit from patients are

exempt from confrontation clause analysis. Instead, the federal constitution

requires courts to analyze the out-of-court statements SANEs elicit from survivors

or witnesses the same way that courts analyze out-of-court statements that other

forensic professionals elicit from other complainants or witnesses. Courts must

place primary emphasis on context. The context includes the development of the

SANE medical/forensic field in the first place, the professional forensic training

SANEs receive, the forensic functions that they perform, and the State’s statutory

11 Frey testified that the cervical injury was unlikely to have been caused by any postmenopausal changes in lubrication, stating that the cervix continues to be “pretty active in terms of lubrication” even in postmenopausal women like K.E.H. 6 VTP (Nov. 3, 2016) at 657. Thus, even with lubrication issues, “you would see vaginal injuries more commonly than anything on the cervix.” Id. at 658. Although Frey testified that cervical cancer “could” make the cervix more vulnerable to injury, she also stated that at the time of the exam, K.E.H. did not have end-stage cervical cancer based on the appearance of her cervix. Id. at 660, 662. 29 State v. Burke (Ronald Delester), No. 96783-1 (Gordon McCloud, J., concurring)

financial support for those forensic functions in evaluating individual statements.

The majority fails to adequately consider that the primary purpose of this forensic

examination, under the totality of the circumstances, was “to establish or prove

past events potentially relevant to later criminal prosecution.” Davis, 547 U.S. at

I therefore respectfully concur.

_____________________________________

_________________________________ Mann, J.P.T.