State v. Sandoval

137 Wash. App. 532

• Court: Court of Appeals of Washington
• Decided: March 13, 2007
• Docket: No. 23754-1-III
• Status: Published

Opinions

¶1 First, considering medical diagnosis and excited utterance testimony, we reject Erik Sandoval’s confrontation arguments in his appeal from his convictions for third degree assault-domestic violence and second degree malicious mischief. Second, the State’s closing argument mentioning hearsay reliability did not vouch for witness credibility. Thus, the trial court did not err in rejecting Mr. Sandoval’s mistrial motion. Accordingly, we affirm.

Brown, J. —

FACTS

¶2 On August 13, 2004, Shawn Thacker called the police to report she was assaulted by her boyfriend, Erik Sandoval. About an hour later, Ms. Thacker called her sister, Michelle Picanso, and told her, “Erik just beat me and messed up your house.” Report of Proceedings (RP) (Dec. 9, 2004) (afternoon session) at 22. She told Ms. Picanso he beat her with a belt.

¶3 A fire truck arrived, and an individual examined Ms. Thacker. She was told she needed to go to the hospital and an officer would meet her there. Ms. Picanso drove Ms. Thacker to the hospital.

¶4 Ms. Thacker told emergency room physician Jill Jenkins she had been assaulted. She told Dr. Jenkins that “Erik Sandoval” had “hit her with his fist, and he — on the back of her head once with his fist. He kicked her on her back, and he took a belt that he had rolled up, and he hit her multiple times with the belt, many times on her left arm, her left hand, her back, her right thigh.” RP (Dec. 9, 2004) (morning session) at 8-9. She said he also “grabbed her wrist.” RP (Dec. 9, 2004) (morning session) at 9. Dr. Jenkins examined Ms. Thacker based on her complaints of pain and injury.

¶5 The State charged Mr. Sandoval with second degree assault, or third degree assault in the alternative, and second degree malicious mischief. Ms. Thacker did not appear for trial. Both Ms. Picanso and Dr. Jenkins gave hearsay testimony about the assault. Pretrial, Mr. Sandoval unsuccessfully moved to exclude those statements. The court denied his mistrial motion made during closing arguments after the State told the jury that certain “exceptions [to the hearsay rules] are allowed because they have been deemed reliable.” RP (Dec. 9, 2004) (afternoon session) at 122-23. A jury convicted Mr. Sandoval for third degree assault and second degree malicious mischief. Mr. Sandoval appeals.

ANALYSIS

A. Sixth Amendment Right To Confront Witnesses

¶6 The issue is whether the admission of Ms. Thacker’s hearsay statements by Dr. Jenkins violated Mr. Sandoval’s Sixth Amendment right to confront witnesses against him. Mr. Sandoval contends the statements were inadmissible since Ms. Thacker’s purpose in telling Dr. Jenkins he attacked her was to initiate criminal prosecution.

¶7 We review constitutional challenges de novo. State v. Bradshaw, 152 Wn.2d 528, 531, 98 P.3d 1190 (2004). The confrontation clause guarantees a criminal defendant the right to confront witnesses against him in a criminal prosecution. Crawford v. Washington, 541 U.S. 36, 42, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004); State v. Ackerman, 90 Wn. App. 477, 483, 953 P.2d 816 (1998). Where “testimonial” hearsay statements are at issue, the original declarant must be unavailable at trial and the defendant must have had a prior opportunity to cross-examine the declarant. Crawford, 541 U.S. at 68; State v. Abd-Rahmaan, 154 Wn.2d 280, 287, 111 P.3d 1157 (2005). These requirements do not apply to nontestimonial statements. Crawford, 541 U.S. at 68. Statements may be deemed “testimonial” by looking at the witness’s purpose in making the statements, specifically, whether the witness expected the statements to be used at trial. Id. at 51-52.

¶8 Witness statements to a medical doctor are not testimonial (1) where they are made for diagnosis and treatment purposes, (2) where there is no indication that the witness expected the statements to be used at trial, and (3) where the doctor is not employed by or working with the State. State v. Moses, 129 Wn. App. 718, 729-30, 119 P.3d 906 (2005), review denied, 157 Wn.2d 1006 (2006). This includes statements of fault in domestic violence cases since the identity of an abuser may affect the witness’s treatment. Id. at 729.

¶9 Here, Ms. Thacker told Dr. Jenkins that Mr. Sandoval kicked her, hit her with his fists, and hit her several times with a belt. Ms. Thacker explained where she felt pain. Dr. Jenkins used this information to conduct an examination of Ms. Thacker’s injuries. The police were not present during Dr. Jenkins’ discussions with Ms. Thacker, and Dr. Jenkins did not discuss whether the report would be used in a criminal investigation. According to Dr. Jenkins, the manner in which an injury occurs, including whether it was inflicted by a stranger or by a family member, impacts diagnosis and treatment. Dr. Jenkins testified that asking for names in domestic violence cases helps her to “better communicate with the patient.” RP (Dec. 8, 2004) at 111.

¶10 In sum, Ms. Thacker’s statements were made for diagnosis and treatment purposes, and were not testimonial or primarily given for criminal prosecution purposes. Moses, 129 Wn. App. at 729-30. Mr. Sandoval’s confrontation rights were not violated.

B. State Confrontation Right, Article I, Section 22

¶11 The issue is whether article I, section 22 of the Washington State Constitution provides greater confrontation rights than the federal constitution. Mr. Sandoval contends hearsay statements by Ms. Picanso (excited utterance) and Dr. Jenkins (medical diagnosis and treatment) were inadmissible under article I, section 22, since Washington’s confrontation clause requires “face to face” confrontation.

¶[12 “We review constitutional challenges de novo.” State v. Cubias, 155 Wn.2d 549, 552, 120 P.3d 929 (2005). A challenge to the scope of Washington’s constitutional rights, as compared to federal constitutional rights, includes an analysis of: (1) the textual language of the state constitution, (2) differences in the texts, (3) constitutional history, (4) preexisting state law, (5) structural differences, and (6) matters of particular state or local concern. State v. Gunwall, 106 Wn.2d 54, 61-62, 720 P.2d 808 (1986). A defendant bears the burden to prove a constitutional challenge. State v. McDonald, 138 Wn.2d 680, 691, 981 P.2d 443 (1999).

f 13 Article I, section 22 guarantees an “accused shall have the right... to meet the witnesses against him face to face.” Wash. Const, art. I, § 22. The Sixth Amendment guarantees an “accused shall enjoy the right... to be confronted with the witnesses against him.” U.S. Const. amend. VI.

¶[14 First, Mr. Sandoval relies on a dissent in State v. Foster, 135 Wn.2d 441, 957 P.2d 712 (1998) to support his argument. But both the Foster majority and dissent note that hearsay statements are not inadmissible under article I, section 22. The majority stated: “We recognized that neither the federal nor state confrontation clause has been read literally, for to do so would result in eliminating all exceptions to the hearsay rule.” Id. at 463-64. The dissent stated: “a strict reading of the confrontation clause in article I, section 22 does not implicate hearsay concerns. . . . Under the hearsay exceptions, a value judgment has already been made that the accused is not entitled to confront those persons making the qualifying statements.” Id. at 495 (Johnson, J., dissenting).

¶15 Second, Mr. Sandoval’s Gunwall argument is not persuasive. As to the first two factors, the meaning of the words used in article I, section 22 and the Sixth Amendment are substantially the same; the differences are not significant. See id. at 459, 474-77. As to the third and fourth factors, our constitutional history does not support a broader interpretation of article I, section 22 than that provided under the Sixth Amendment, and preexisting state law shows hearsay evidence has been admitted without violating article I, section 22. See id. at 459-64; State v. Swan, 114 Wn.2d 613, 666, 790 P.2d 610 (1990); State v. Baldwin, 15 Wash. 15, 18-19, 45 P. 650 (1896). Finally, while the fifth factor always supports an independent state constitutional analysis, the sixth factor is not as convincing. See Foster, 135 Wn.2d at 458-59, 461-65. Mr. Sandoval has not shown that Washington has a separate interest in protecting defendants from hearsay evidence. See id. at 465.

C. Prosecutorial Misconduct

¶16 The issue is whether the trial court erred in denying Mr. Sandoval’s mistrial motion for prosecutorial misconduct during closing argument for allegedly vouching for the credibility of the State’s witnesses by discussing their reliability under the hearsay rules.

¶17 We review a trial court’s denial of a mistrial motion based on prosecutorial misconduct for abuse of discretion. State v. Rodriguez, 146 Wn.2d 260, 269, 45 P.3d 541 (2002). A prosecutor engages in misconduct if he makes improper comments and a substantial likelihood exists of the improper comments affecting the verdict. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). Reversal is not required if the defendant failed to request a jury instruction that could have cured any prejudice. Id.

¶18 During closing arguments, a prosecutor may argue points of law that are included within the court’s jury instructions and he may comment on a witness’s veracity. State v. Perez-Cervantes, 141 Wn.2d 468, 475, 6 P.3d 1160 (2000); State v. Fiallo-Lopez, 78 Wn. App. 717, 730-31, 899 P.2d 1294 (1995). A prosecutor may not, however, directly or indirectly state a personal belief that a witness was telling the truth. State v. Reed, 102 Wn.2d 140, 145, 684 P.2d 699 (1984).

f 19 Here, Mr. Sandoval objected after the deputy prosecutor began explaining the Rules of Evidence. He objected again after the deputy prosecutor told the jury that certain hearsay statements were admissible because they were deemed reliable. He approached the bench and moved for a mistrial, arguing the deputy prosecutor’s comments essentially vouched for the witness’s credibility. The court denied the motion. The court did not rule on or instruct the jury in response to Mr. Sandoval’s objection. The State concedes the argument was “a bit clumsy” but argues that is all. State’s Resp. Br. at 20.

¶20 First, Mr. Sandoval has not shown the deputy prosecutor’s comments vouched for the witness’s credibility since the deputy prosecutor did not directly or indirectly state a personal belief that a witness was telling the truth. Fiallo-Lopez, 78 Wn. App. at 730-31. Aprosecutor can tell the jury to believe one witness over another. Emphasizing the reliability of one witness over another is not witness vouching.

¶21 Second, even if the deputy prosecutor’s comments could be viewed as vouching, Mr. Sandoval fails to show reversible prejudice. The court instructed the jury it was the sole judge of witness credibility and the weight to be assigned to the evidence, and that it should disregard any attorney comments not supported by the evidence or the law; Mr. Sandoval did not request a separate curative instruction. Dhaliwal, 150 Wn.2d at 578; Foster, 135 Wn.2d at 472. We presume the jury followed the court’s instruction. Swan, 114 Wn.2d at 661-62.

¶22 Third, the trial court is in the best position to decide whether prejudice results in the context of trial. State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996). A trial court should not grant a mistrial except when “nothing short of a new trial can insure that the defendant will be tried fairly.” Id. Given the brief portion of argument involved and the court’s instructions, we are not persuaded the trial court abused its discretion in denying Mr. Sandoval’s mistrial motion.

¶23 Affirmed.

Kato, J. Pro Tem., concurs.