State v. Reidhead

705 P.2d 1365, 146 Ariz. 314, 1985 Ariz. App. LEXIS 656

• Court: Court of Appeals of Arizona
• Decided: April 10, 1985
• Docket: 2 CA-CR 3348
• Status: Published

Opinions

OPINION

HOWARD, Judge.

Appellant was convicted by a jury of a single count of child abuse, a non-dangerous, non-repetitive class 4 felony, and was placed on probation for a period of four years. On March 31, 1983, appellant brought his four-year-old son Allen Jr., to the Northwest Medical Center, Urgent Care Center in Tucson for the treatment of a broken arm. The boy was examined by Dr. Margaret Buford, who also observed what appeared to be a slap mark on the child’s face and a mark on his chest. Appellant told Dr. Buford that he had slapped his child and that the child had then fallen off the porch. Dr. Buford testified that she did not believe any of the injuries that she observed were consistent with a fall from a porch. Dr. Buford referred the child to Dr. Jeryl Dansky of the University Hospital for treatment and consultation. He also examined the child. Dr. Dansky testified that the injuries were not consistent with a fall from the porch. Over appellant’s objection, Dr. Dansky was allowed to testify that the child told her, “Daddy twisted my arm.”

The child and his mother were not available for trial. There was no showing as to what efforts were made to locate them. The only testimony came from the doctors and a detective who had interviewed appellant.

Appellant contends the trial court erred in allowing Dr. Dansky to testify as to the fact that the child stated that his father twisted his arm. The state contends that the statement was admissible as an exception to the hearsay rule under Rule 803(4), Arizona Rules of Evidence, which provides an exception for:

“Statements made for purposes of medical diagnosis or treatment and 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.”

We do not agree. The rule was discussed in the case of State v. Jeffers, 135 Ariz. 404, 661 P.2d 1105 (1983) where the court stated:

“Two important factors derive from the rule’s rationale: (1) whether the declarant’s motive is consistent with receiving medical care; and (2) whether it is reasonable for the physician to rely on the information in diagnosis or treatment. United States v. Iron Shell, 633 F.2d 77 (8th Cir.1980). Thus in Iron Shell, the court admitted an assault victim’s statements to her doctor stating: ‘It is important to note that the statements concern what happened rather than who assaulted her. The former in most cases is pertinent to diagnosis and treatment while the latter would seldom, if ever, be sufficiently related.’ Id. at 84. Accord, United States v. Nick, 604 F.2d 1199 (9th Cir.1979). The Advisory Committee’s Note to rule 803(4) also makes a point of illustrating that statements as to fault would not ordinarily qualify under the exception.” 135 Ariz. at 420-21, 661 P.2d at 1121-22.

Here, the statement as to fault was not reasonably pertinent to diagnosis or treatment. The court erred when it allowed the testimony into evidence. The error was not harmless here because that statement from the child was the only statement directly connecting appellant to the injury to the boy’s arm, his most serious injury. We note with astonishment the dissent’s contention that appellant’s right to confrontation is not violated because a child’s statement to a doctor in a child abuse situation is inherently trustworthy. Support for this statement consists of two articles contained in professional magazines by authors whose expertise is unknown. Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), teaches that the out-of-court statements of a person not called as a witness and never previously made available for cross-examination are admissible at least when three conditions are satisfied:

(1) there are ‘indicia of reliability’ surrounding the evidence; (2) the evidence is ‘peripheral’ rather than ‘crucial’ or ‘devastating’, and (3) the witness is equally available to the prosecution and the defense. 400 U.S. 74 at 88, 89 & n. 19, 91 S.Ct. at 219, 220 & n. 19. Even if we were to agree that condition (1) existed here, the other two clearly did not. Furthermore, the record does not disclose that a good faith effort was made to locate the mother and child. See United States v. Yates, 524 F.2d 1282 at 1286 n. 10 (D.C.Cir.1975). Apparently the dissent believes that we can dispense with the cross-examination of child witnesses. The constitutional right to confrontation should not be eliminated on the basis of some magazine articles.

In State v. Martin, 139 Ariz. 466, 679 P.2d 489 (1984), the court states that an important factor which should be considered when deciding whether the right to confrontation has been satisfied is the importance of the evidence. Here, the hearsay was the major evidence. Its admission was devastating to the defendant. The right to confrontation is at the heart and soul of our criminal judicial system and must be jealously guarded. We note that the Wyoming court in the case relied upon by the dissent, a 3-2 decision, did not even address the confrontation problem. The dissent would allow the state in child abuse cases to avoid any cross-examination by the simple expedient of not having the child available and not having him testify. Contrary to the dissent’s major premise, the identification of the person who twisted the child’s arm is not necessary for the doctor to make his medical determination as to the nature of the injury.

Appellant has raised other issues which we need not discuss in view of our disposition.

Reversed.

BIRDSALL, P.J., concurs.