State v. Krasky

736 N.W.2d 636, 2007 Minn. LEXIS 447, 2007 WL 2264711

• Court: Supreme Court of Minnesota
• Decided: August 9, 2007
• Docket: A04-2011
• Status: Published

Opinions

OPINION

MEYER, Justice.

Appellant State of Minnesota appealed from a pretrial order barring admission of statements made to a nurse by a child victim, T.K., who was incompetent to testify at trial by reason of her young age. The court of appeals reversed, holding that admission of the statements would not violate the Confrontation Clause rights of respondent Edward Richard Krasky, and Krasky appealed. We vacated and remanded for reconsideration in light of our decisions in State v. Bobadilla, 709 N.W.2d 243 (Minn.), cert. denied — U.S.-, 127 S.Ct. 382, 166 L.Ed.2d 270 (2006), and State v. Scacchetti, 711 N.W.2d 508 (Minn. 2006), both of which dealt with application of the Confrontation Clause to statements by child victims to medical professionals. On remand, the court of appeals affirmed the district court order barring admission of T.K’s statements. The state now brings this appeal, arguing that T.K.’s statements to a nurse are not testimonial and therefore admission of those statements poses no Confrontation Clause problem. We reverse.

On April 22, 2004, T.K.’s foster mother discovered six-year-old T.K. engaging in sexual behavior with M.K., her younger sister. When T.K.’s foster mother discussed this behavior with T.K., T.K. said that Krasky, her biological father, had engaged in various sexual behaviors with T.K. and M.K. Over the next several days, T.K. continued to engage in inappropriate behavior with her sister and again mentioned to her foster mother certain sexual behavior with Krasky.¹

On May 12, 2004, the Willmar Police Department received a child protection report concerning T.K. (presumably made by the foster mother). Thereafter, Timothy Manuel, a detective with the Willmar Police Department, and Charlotte Hand, a social worker with Kandiyohi County Family Services who conducts child protection investigations, discussed the situation and decided to have Midwest Children’s Resource Center (MCRC) interview and examine T.K.² On May 20, 2004, T.K’s foster mother gave T.K. a ride to MCRC where they were met by Hand and Tina Mages, the girls’ adoption social worker.

. MCRC nurse Margaret Carney first spoke to the foster mother, who described T.K’s inappropriate behavior and the comments T.K. made regarding the sexual abuse. The foster mother also relayed some limited medical history. While Hand and Mages watched from an observation room, Carney interviewed T.K. and performed a physical examination of her. The interview and the examination were videotaped, although the physical exam was conducted out of view of the camera. Carney told T.K. that T.K. was being assessed in order to evaluate T.K’s health and it was important for T.K. to tell the truth. During the assessment, T.K. repeatedly stated that Krasky touched her genitals, penetrated her, and made her touch his genitals. Following the assessment, Carney tested T.K. for sexually transmitted diseases and made a recommendation for psychotherapy by a therapist who specializes in children who have been sexually abused.

Krasky was charged with multiple counts of both first- and second-degree criminal sexual conduct in violation of Minn.Stat. §§ 609.342, 609.343 (2006). The state gave notice to Krasky that it intended to admit at trial T.K.’s statements to Carney or the videotape of the interview, and Krasky made a timely motion to suppress T.K’s out-of-court statements claiming that admission of them would violate his right of confrontation. At a hearing on October 12, 2004, the prosecutor argued that Krasky had forfeited his confrontation rights by creating a violent atmosphere in the home. The state stipulated that T.K. and M.K. were not competent witnesses and were therefore unavailable to testify. The district court determined that T.K., then six years old, was incompetent to testify and therefore unavailable because T.K. “lacks the capacity to truthfully and accurately relate the facts about the defendant’s alleged abuse,” apparently due to her young age and developmental delays. The court concluded that T.K’s statements during the MCRC interview and examination were testimonial and that the statements were therefore inadmissible. The court also held that Krasky did not procure T.K.’s unavailability and thereby forfeit his Sixth Amendment Confrontation Clause rights.

The state appealed Irom the pretrial order, and the court of appeals reversed the court’s order suppressing T.K.’s statements. State v. Krasky, 696 N.W.2d 816, 820 (Minn.App.2005) (Krasky I):3 The court held that the statements were not testimonial because they were made at least in part for medical purposes and, as a result, the court concluded that admission of the statements would not violate Kra-sky’s rights under the Confrontation Clause. Id. Krasky appealed, and we granted review, stayed Krasky’s appeal, and ultimately remanded to the court of appeals for reconsideration in light of our decisions in Bobadilla, 709 N.W.2d at 243, and Scacchetti 711 N.W.2d at 508.

On remand, the court of appeals considered not only the Bobadilla and Scacchetti decisions, but also Davis v. Washington, — U.S.-, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), which had been recently decided. See State v. Krasky, 721 N.W.2d 916 (Minn.App.2006) (Krasky II). The court of appeals interpreted Davis as establishing that statements are testimonial when made in a nonemergency situation in response to government questions about past events that are potentially relevant to later criminal prosecution. See id. at 921. The court determined that T.K’s statements were made to Carney in a nonemergency situation because T.K. had been removed from Krasky’s home and his parental rights had been terminated. See id. at 922-23. Further, the court concluded, without explanation, that there was “no identified medical reason for the interview.” Id. at 919. The court of appeals concluded that T.K’s statements were testimonial and could not be admitted at trial. Id. at 924. Finally, the court of appeals held that, because there was no evidence of witness coercion or intimidation, Krasky had not forfeited his rights under the Confrontation Clause. Id. at 924. This appeal followed.

The sole issue in this case is whether statements made by a child victim to a nurse at MCRC are testimonial, and therefore inadmissible under the Confrontation Clause.⁴ When appealing from a pretrial order suppressing evidence, the state must establish that the order was erroneous. State v. Scott, 584 N.W.2d 412, 416 (Minn.1998). We employ a de novo standard of review when determining whether admission of evidence will violate a criminal defendant’s rights under the Confrontation Clause. State v. Caulfield, 722 N.W.2d 304, 308 (Minn.2006).

The Sixth Amendment states 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; see also Minn. Const, art. 1, § 6 (“The accused shall enjoy the right * ⅜ ⅜ to be confronted with the witnesses against him ⅜ * *.”). This clause requires that all prior testimonial statements be excluded in criminal trials unless the declarant is unavailable to testify at trial and the defendant has had a prior opportunity to cross-examine the de-clarant regarding the statement. See Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The state bears the burden of proving a declarant’s statements are not testimonial. See Caulfield, 722 N.W.2d at 308.

In Bobadilla and Scacchetti two cases decided by this court in 2006, we analyzed Confrontation Clause challenges to admission of statements by child victims. In Bobadilla, we examined the admissibility of statements by a child sexual abuse complainant to a child-protection worker. See 709 N.W.2d at 246-48. We held that the statements of a three-year-old boy were not testimonial because they were made primarily to determine whether abuse occurred and whether steps needed to be taken to protect the health and welfare of the complainant, not to produce a statement for trial. See id. at 255-56. This was true despite the fact that an initial medical examination had already been conducted several days earlier, the fact that the assessment was conducted at a law enforcement center, and the fact that a police officer was present during the interview. Id. at 246-47. We considered it significant that the interview of the complainant was conducted “in accord with a statutory scheme for reporting, investigating, and responding to threats to children’s health or welfare” that is clearly intended to protect the health and welfare of children rather than produce statements for trial. Id. at 254.

In Scacchetti, we examined the admissibility of statements by a child sexual abuse complainant to a pediatric nurse practitioner employed by MCRC. 711 N.W.2d at 510. We held that statements by a three-and-one-half-year-old victim made during two separate assessments, which occurred several days after the alleged abuse and after an initial medical exam by a doctor, were not testimonial because they were primarily made in order to assess the complainant’s medical health and because no government actor was involved in producing the statements. See id. at 511, 514-15.

In both cases, we looked at the specific circumstances under which the statements were made in order to determine whether they were testimonial.⁵ See Scacchetti, 711 N.W.2d at 513-15; Bobadilla, 709 N.W.2d at 250-53. We focused in particular on whether production of statements for trial was a primary or merely incidental purpose from the perspectives of both the declarants and the questioners. Scacchetti, 711 N.W.2d at 513-15 (using terms “substantial” and “broad” rather than “primary”); Bobadilla, 709 N.W.2d at 250-53 (using term “substantial” rather than “primary”).

In this case, the assessment of T.K. was conducted at a children’s hospital rather than at a law enforcement center, and no law enforcement officer was present. The referral to MCRC was a joint decision made by social services and law enforcement, but there is no indication that the MCRC nurse who conducted the assessment of T.K. in this case was acting as a proxy for law enforcement. Accordingly, T.K’s statements to Carney are clearly less the product of a police interrogation than the statements at issue in Bobadilla. As in Scacchetti, we conclude that a nurse practitioner employed by MCRC is not a government actor. 711 N.W.2d at 514-15.

We conclude that the primary purpose of T.K.’s statements to Carney was to assess and protect T.K.’s health and welfare. Carney conducted a physical examination of T.K., questioned the foster mother about T.K’s medical history, tested T.K. for sexually transmitted diseases, recommended that T.K. receive psychotherapy, and repeatedly told T.K. that an examination was necessary in order to ensure that T.K. was healthy. That Krasky had been incarcerated and no longer possessed parental rights at the time of Carney’s assessment does not mean that T.K’s future health and welfare were not in question. The harms of child abuse are not limited to the abused child’s physical well-being. Although future acts of abuse were unlikely given that Krasky’s parental rights had been terminated and he was incarcerated at the time T.K. reported the abuse, Carney’s recommendation that T.K. receive psychotherapy indicates that her mental health was still at risk. Further, unlike in Bobadilla and Scacchetti, there is no indication in the record that T.K. was examined after she first reported the abuse and before meeting with Carney. Therefore, it could be said that T.K’s current physical health remained in doubt. In addition, seeking an assessment from Carney was a natural response to T.K.’s inappropriate behavior towards other children and, following the assessment, T.K. was eventually removed from foster care and the company of the other children living there. Consequently, we conclude that T.K’s statements to Carney were nontestimonial and that admission of those statements will not violate Krasky’s rights under the Confrontation Clause.⁶

The statement in the police report indicating that a police officer and a child protection worker jointly concluded that “the best way to proceed with the investigation was to have [MCRC] do an interview with [T.K.] along with a medical exam” does not change our conclusions. Joint decisions of this type are required by Minn.Stat. § 626.556, subd. 10a (2006). As we noted in Bobadilla, the purpose of that statute is not the prosecution of criminals or the collection of evidence for trial. Instead, the statute declares that

the public policy of this state is to protect children whose health or welfare may be jeopardized through physical abuse, neglect, or sexual abuse * * *. In furtherance of this public policy, it is the intent of the legislature under this section to strengthen the family and make the home, school, and community safe for children by promoting responsible child care in all settings; and to provide, when necessary, a safe temporary or permanent home environment for physically or sexually abused or neglected children.

In addition, it is the policy of this state to require the reporting of neglect, physical or sexual abuse of children in the home, school, and community settings; to provide for the voluntary reporting of abuse or neglect of children; to require a family assessment, when appropriate, as the preferred response to reports not alleging substantial child endangerment; to require an investigation when the report alleges substantial child endangerment; and to provide protective, family support, and family preservation services when needed in appropriate cases.

Minn.Stat. § 626.556, subd. 1 (2006); see also Bobadilla, 709 N.W.2d at 254-55 (quoting Minn.Stat. § 626.556, subd. 1). As Bobadilla suggests, compliance with this statutory scheme, which is focused on protection of children’s health and welfare, does not render the statements of a child sexual abuse complainant testimonial.

Krasky argues that the Supreme Court’s holding in Davis v. Washington calls into question the validity of our holdings in Bobadilla and Scacchetti (both decided before Davis). Krasky’s reliance on Davis is misplaced. The Davis case involved two separate domestic violence cases. 126 S.Ct. at 2270-73. In the first case, a 911 operator gathered information about an assailant and details of the assault. Id. at 2270-72. The victim never testified and the district court admitted the victim’s out-of-court-statements to the 911 operator. Id. at 2271. In the second case, police arrived at the victim’s home in response to a report of domestic abuse. Id. at 2272. The victim told the police that the assailant (her husband) had assaulted her and she signed an affidavit describing the assault. Id.

The Davis Court concluded that the 911 call in the first case did not produce a testimonial statement because the circumstances indicated that “its primary purpose was to enable police assistance to meet an ongoing emergency.” Id. at 2277 (emphasis added). With respect to the on-scene statements in the second case, the court held that there was no emergency in progress and that the “primary, if not indeed the sole, purpose of the interrogation was to investigate a possible crime.” Id. at 2278 (emphasis added).

Krasky argues that Carney was not assessing or responding to an immediate danger and, therefore, she was merely seeking to preserve evidence for trial. We do not read the Davis opinion to hold that only those statements made in response to an immediate danger are nontestimonial. The facts of Davis required the court “to determine more precisely which police interrogations produce testimony” and the precise question was whether emergency calls to police are treated differently than statements made in the regular course of a police investigation. Id. at 2273-74. The court specifically noted that its holding was limited to its facts. Id. at 2278 n. 5 (“[0]ur holding is not an exhaustive classification of all conceivable statements — or even all conceivable statements in response to police interrogation, but rather a resolution of the cases before us and those like them.” (internal quotation marks and citations omitted)). We conclude that the Davis decision leaves undisturbed our conclusions in Bobadilla and Scacchetti that statements elicited by a medical professional for the primary purpose of protecting a child sexual assault victim’s health and welfare are nontestimonial.

We conclude that T.K’s statements to Carney are nontestimonial and admission of those statements will not violate Krasky’s right of confrontation under the Sixth Amendment.⁷ The decision of the court of appeals is reversed.

DISSENT

1 . As of April 2004, Krasky had not had any contact with T.K. in approximately 18 months, having been incarcerated for much of that period in connection with various assault convictions stemming from physical abuse of T.K. and his other children.

2 . Pursuant to á statutory scheme designed to "protect children whose health or welfare may be jeopardized through * * ⅜ sexual abuse,” local social service agencies are required "to conduct a family assessment or an investigation” upon receiving a report of child sexual abuse. Minn.Stat. § 626.556 (2006), subds. 1, 10(a) (2006). A local welfare agency responsible for assessing or investigating the allegations must request information relevant to the investigation, potentially including "a medical examination of the child.” Minn. Stat. § 626.556, subd. 10(h)(3) (2006). Local social service agencies must immediately share information about child sexual abuse allegations with law enforcement, Minn.Stat. § 626.556, subd. 3(a) (2006), and law enforcement and local welfare agencies are required to "coordinate the planning and execution of their respective investigation and assessment efforts to avoid a duplication of fact-finding efforts and multiple interviews,” Minn.Stat. § 626.556, subd. 10(a). Interviews of child sexual abuse complainants must be videotaped whenever possible. Minn.Stat. § 626.556, subd. 10(j)(2).

3 . The state appealed the district court's decision to suppress Spreigl evidence, and the court of appeals affirmed the district court's decision. Krasky I, 696 N.W.2d at 820-21. The state did not raise the Spreigl issue to this court.

4 . The dissent argues for excluding the child victim's statement for another reason — her statement is inadmissible because the judge found her to be incompetent to testify and, therefore, her statement is unreliable. A witness's competency to testify and a statement's reliability are matters that are completely separate from whether a statement is admissible under the Confrontation Clause. Neither the issue of the victim’s competency nor any reliability objections are properly before the court, though presumably both issues could be raised at a later time.

5 . In both cases, we provided a list of eight nonexclusive factors that are relevant to our review:

(1) whether the declarant was a victim or an observer; (2) the declarant’s purpose in speaking with the officer (e.g., to obtain assistance); (3) whether it was the police or the declarant who initiated the conversation; (4) the location where the statements were made (e.g., the declarant's home, a squad car, or the police station); (5) the declarant’s emotional state when the statements were made; (6) the level of formality and structure of the conversation between the officer and declarant; (7) the officers’ purpose in speaking with the declarant (e.g., to secure the scene, determine what happened, or collect evidence); and (8) if and how the statements were recorded.

Scacchetti, 711 N.W.2d at 513, and Bobadilla, 709 N.W.2d at 250 (both quoting State v. Wright, 701 N.W.2d 802, 812-13 (Minn.2005), vacated and remanded, ■— U.S. -■, 126 S.Ct. 2979, 165 L.Ed.2d 985 (2006)).

6 . In both Bobadilla and Scacchetti, we noted that it was unlikely the child complainant knew that the statements could be used at trial against an abuser. See Scacchetti, 711 N.W.2d at 516; Bobadilla, 709 N.W.2d at 255. While we do not decide this case on the grounds that T.K. did not know her statements might be used at trial, we note that it would be an odd outcome if we were to hold that, while T.K. is not competent to be called to the stand to give testimony in court, her out-of-court statements to Carney are nonetheless inadmissible because they are testimonial in nature.

7 . The state makes an argument in the alternative that Krasky forfeited his rights under the Confrontation Clause by creating an "atmosphere of abuse ⅝ * * in the home” through physical "assaults of his wife and all of his children.” We decline to decide this question as it is not necessary to the resolution of this case.