Anderson v. State

MURPHY, J. In the Circuit Court for Montgomery County, a jury convicted Waymon Anderson, Petitioner, of sexual abuse of a minor and second degree sexual offense. The State’s evidence, which included the testimony of the alleged victim (Petitioner’s niece, Brittany B, “Brittany”), was sufficient to establish that he committed those offenses during the first four months of 2008. That evidence, however, included a written report made to Detective Mike Carin of the Montgomery County Police Department by Stephen C. Boos, M.D., who did not testify at trial. The Circuit Court overruled Petitioner’s objection to the introduction of that report.

After that ⁵⁵⁷ ruling was affirmed by the Court of Special Appeals in an unreported opinion, Petitioner filed a petition for writ of certiorari with this Court, in which he presented a single question: Did the trial court err in admitting the report prepared by Dr. Stephen Boos, who was not present at trial, and in allowing Dr. Evelyn Shukat to testify as to it contents, when such report had not been made for purposes of medical diagnosis or treatment? We granted the petition. 416 Md. 272 , 6 A.3d 904 (2010). For the reasons that follow, we hold that Dr. Boos’ report to Detective Carin should have been excluded on the ground that it was prepared in anticipation of litigation, and was not admissible under either the “business records” exception or the “statements in contemplation of treatment” exception to the rule against hearsay. We also hold that the erroneous decision to admit the report into evidence was not harmless beyond a reasonable doubt.

Background On April 28, 2008, Brittany told her mother that she had been abused by Petitioner, and her mother took Brittany to Holy Cross Hospital. The records of that hospital, which are admissible under Md. Rule 5-803(b)(6), show that the “follow up instructions” that were given to Brittany include: “Shady Grove Hospital as directed by police for your forensic exam and interview.” The investigating officers, however, referred Brittany to The Tree House Child Assessment Center of Montgomery County (Tree House). On April 28, 2008, Dr. Boos was the Medical Director of the Tree House. The State’s case-in-chief included (1) a “redacted” version of Dr. Boos’ report to Detective Carin, and (2) expert testimony based on that report, presented by Dr. Elizabeth Shukat, who was the Tree House’s Medical Director at the time of Petitioner’s trial.

The first page of the report was prepared on paper with the following letterhead: ⁵⁵⁸ The Tree House Montgomery County Child Assessment Center 7300 Calhoun PI, Suite 604 Rockville, MD 20855 (Telephone & Fax numbers appear on original) The report included the following assertions: Monday, April 28, 2008 To: Detective Mike Carin Thomas Earl From: Stephen C. Boos, M.D. Re: Brittany B[ ] Date of birth: July 24,1998 Date of evaluation: April 28, 2008 Brittany B[ ] is a nine-year-old African-American female who was referred to the Tree House Child Assessment Center of Montgomery County. She presented here on April 28, 2008, accompanied by her mother, Doris B[ ]. She was referred for a medical history recommendation[ ] pursuant concerns of child sexual abuse. Past medical history: On a review of systems the child reported stomachaches since last week.

She feels this as a very brief rumbling pain in her supra umbilical area in the afternoon. As noted, the pain is brief and it occurs less than every day. For genital symptoms, Brittany reported burning urination sometimes. She spontaneously commented “it started when Uncle [ ] do that.” I asked her how long it lasts after [ ] “do that,” and she said for a few days.

She has no history of constipation, no history of past genital injury, and no medical attention for genital or anal complaints. History from Brittany B[ ] I spoke with Brittany about the things she likes to do in her school environment to become more familiar with her. I reminded her that I was a doctor and we needed to talk about doctor things. I told her that doctors have two ⁵⁵⁹ problems when they talk to patients.

First, sometimes kids want to give an answer when an adult asks a question, and they may not know the answer or not understand the question. I told her that I needed her to tell me if she didn’t understand the question and ask me to rephrase it. I also told her that if she didn’t know the answer she should tell me that rather than guessing, because that would not help me take care of her. I then continued that doctors talked about very private things and sometimes kids want to keep a secret.

I encouraged her either to tell me the truth, or if she just could not reveal something, to tell me that it was secret, but never to lie to me because if I made a decision based on the lie, I might not take proper care of her. I then asked her to agree to not lie, not guess and not keep secrets. She agreed to these things. I then asked Brittany if she knew why she needed to see a doctor today.

She replied, “no, not really.” I then asked her if anything different happened to her than happens to other kids so that she might need some special doctor’s care. She nodded, indicating yes. I asked her to tell me about it. She responded “I was sexually assaulted.” I told her that I needed to know exactly how that happened.

She replied “my grandma and my mother and my aunt go out, and [ ] tell me to come in his room, and [ ] make me suck his private part.” [ ] I told her that she also referred to “he” or “his” and I needed to know who “he” or “his” was. She answered “Uncle Wayne.” [ ] [ ] I asked her if something [ ] ever happened to her body. She answered “my Uncle Wayne licked my private part.” I pointed out that previously she had said that she had to suck “his” private part. I wanted to know what private part she was referred to.

She responded “[ ] Uncle Wayne.” When I asked her if it was every somebody else, she replied “no.” I asked her if any other things happened to her body that she didn’t like or thought were bad and she replied “no.” I asked if there was any other kind of touching that she didn’t like, and she again asserted “no.” I pointed out that before she had said that it burned her to pee after what ⁵⁶⁰ happened to her. She immediately responded “when I use the bathroom, [ ]. I asked her what made it so that it hurt when she peed. She replied “because it’s in my area.” I pointed out that I didn’t understand this, and she explained “because when he licked my private part, he pressed down too hard.” I asked her if any other private parts touched on her private part, and she replied “no.

I then asked her how about things happening with hands. She answered “no,” so I asked her “there wasn’t any rubbing or touching” and she correct herself, just answering “rubbing.” I then asked her, tell me about rubbing. She answered “he would take his hand or his finger and stick it down my pants.” I asked her what he did there and she replied “he would rub, on me, my private area.” I asked her who she was referring to this time, and she said “Uncle Wayne.” She also told that this made it burn when she urinated. I returned to the question about sucking on private parts. [ ] I[ ] asked her about Uncle Wayne, and if anything from him got on her.

She shook her head no. I added or in your mouth, and she nodded her head, indicating yes. I reaffirmed “so you had to suck his private too,” and she reasserted this, saying yes. I next asked Brittany if she thought about things like this sometimes.

She said that she did and it “pops in my mind,” when we’re talking about stuff. She added “sometimes I think I should tell my mom, sometimes I think she won’t believe me.” I asked Brittany if her Uncle Wayne [] wanted her to tell, and she stated “no.” I asked her how she knew this, and she replied “they would say if I told bad things would happen to me.” I asked her if [ ] said this, and she said [“jUncle Wayne.[”] I next asked Brittany why she told her mom’s friend. She answered “I needed someone to talk to; I wanted to share my feelings.” I asked her to tell me more about that and she said “I felt that I should talk to somebody before I told my mom.” When I asked her why, she said “so I could get my story straight, so she would understand it.” Because of this utterance I asked her whether or not the ⁵⁶¹ things she had been saying were all true. She asserted that they were, saying “yes.” I asked her if anything was exaggerated beyond what had really happened, and she shook her head and said “no.” I then asked her how she felt now that she had told.

She replied “healthy, good.” And she smiled. I asked Brittany if she is having any problems with her body now. She denied that she was. She said that sometimes it hurts in her private, like a little pinch every once in a while.

She denied any discharge or any bleeding. She also said it no longer hurt to void. The following transpired when Petitioner’s trial counsel moved in limine that the State be prohibited from introducing Dr. Boos’ report into evidence: [PETITIONER’S COUNSEL]: The State wants to offer this document from—that’s been generated by the Tree House and signed by Dr. Boos— THE COURT: Okay. [PETITIONER’S COUNSEL]:—in this matter. It’s obviously a hearsay document.

I believe that the State is going to rely upon this being under the exception for medical treatment purposes. I am suggesting to the Court, most respectfully, that it does not fit within that rubric. Prior to going—being taken by the police— [PETITIONER’S COUNSEL]: Okay. I don’t think that this is a statement made by Brittany for the purposed [sic] of treatment to Dr. Boos.

One of the reasons that I would suggest to the Court that this wasn’t for the purposes of treatment is, the fact that she was already taken to Holy Cross. When she gets to Holy Cross, she’s examined by them. The report says what they do. Gives her directions as to what to do in terms of followup.

When she gets—if you look at the report to Dr. Boos, the original report, not the redacted version, when Brittany gets—well, first of all, ⁵⁶² look at to whom the report is directed. It’s directed to Detective Mike Carin and Thomas Earl from Dr. Boos. THE COURT: Okay. [PETITIONER’S COUNSEL]: That has—he would be doing that there—if you look at [State u] Coates [, 405 Md. 181 , 950 A.2d 114 (2008) ] and you do the analysis that Coates follows in this case, questions concerning the identify of the perpetrator— THE COURT: They’ve redacted those. [PETITIONER’S COUNSEL]:—are not relevant in this case. THE COURT: Well, actually, I think Coates says that they normally aren’t.

They may or may not be, and I think that it referred to an earlier case where as if—where the child is still symptomatic, possibly identity might be pathologically germane, but they redacted the references as to the name, so it’s a non-issue. [PETITIONER’S COUNSEL]: And, I guess the other thing that I would point out to the Court is, Dr. Boos, who took the history in this particular case, is the one who reported this information. I have no right to cross-examine. I can’t cross-examine the report, and obviously one of the protections that my client has is to cross-examine Dr. Boos. He’s available.

He’s in Boston. They could have brought him down, rather than trying to put this report in, yet they didn’t. My client has a right to confront his accusers, and what’s in this report essentially is being used as an accusation. These are statements taken, part of a forensic review— THE COURT: So that, you know, I’m not inclined, since you have the other witness who is here, subject to cross-examination, to admit the assessment portion of the report.

I mean, it would appear to me that the history portion and what the child reports, and we’ve had the mother here and, I think, [Petitioner’s counsel] even asked the mother what she told the doctor, so as to the history portion of the exam, ⁵⁶³ [Petitioner’s counsel], quite frankly, it would appear to me that that does fall within the hearsay exceptions, statements made for purposes of diagnoses or treatment, and I think it was Coates and or other cases, but I believe it’s Coates that says you can clearly have dual purposes, and although she initially says, you know, “Pm not sure why Pm here,” the doctor explains what he needs to do and why he needs to do it, and the proffer is it’s done that same day as the initial report, which may be within a week. It’s a little unclear of the last assault, so, I mean, it clearly seems to me that it does related to diagnosis and treatment. So Pm inclined, frankly, to admit the history portion of what she relates occurred, but not the doctor’s assessment. Although I mean, that’s the physical exam.

I don’t have a problem necessarily with the physical exam. [PETITIONER’S COUNSEL]: Are you talking about where [it] says “past medical history”? Is that the part that you’re saying you are willing to admit? THE COURT: Pm talking about “past medical history, social history, history from Brittany B.” I’m talking about the first four pages. It’s all part of the history as far as I’m concerned. [PETITIONER’S COUNSEL]: You just mentioned that there can be dual purposes.

THE COURT: Right. [PETITIONER’S COUNSEL]: and one of the things, I think, that comes out in Coates, when you read Coates carefully, and Pm sure you’ve [read] it— THE COURT: Yes. [PETITIONER’S COUNSEL]:—as closely as I have, is we have to look at the primary purpose, and one of the words that Coates uses, I think, quite clearly is the over arching purpose of the interview. Is it for medical? Is it for forensic purposes? Is it, you know—which one of them prevails, or is both?

And in this particular case, she’s ⁵⁶⁴ already had a medical evaluation before she ever got to Dr. Boos, and if this was for medical purposes, I don’t see one thing in Dr. Boos’ report where there’s any suggestion as to what she should do for treatment of this problem, and— THE COURT: Well, he refers her—I mean, at the bottom—I mean, he orders certain testing. He also says that she should have evaluation, I believe, for—I mean, as I see it, frankly, it seems to me that he is