Green v. State

SALMON, J. Anthony Green was indicted in the Circuit Court for Prince George’s County, Maryland, and charged with attempted murder and various other offenses including first and second-degree assault, second and third-degree sexual offenses, reckless endangerment, use of a handgun in commission of a crime of violence, third-degree burglary, trespass, possession of a controlled dangerous substance, and sodomy. At the conclusion of Green’s jury trial, the State nolle prossed the charge of possession of a controlled dangerous substance and the court granted a motion for judgment of acquittal as to the charge of sodomy, third-degree burglary, trespass, and one count of second-degree assault. The jury found Green guilty of third-degree sexual offense, fourth-degree sexual offense, second degree assault and reckless endangerment. The court sentenced appellant to ten years incarceration for third-degree sexual offense, a concurrent sentence of ten years for second-degree assault, and a consecutive sentence of five years for reckless endangerment.

For sentencing purposes, the fourth-degree sexual offense was merged with the third-degree sexual offense. Green contends in this appeal that his right to confront witnesses against him, guaranteed by the Sixth Amendment to the United States Constitution, was violated when the trial judge allowed the State to introduce into evidence a redacted copy of a report that was prepared by a nurse employed by the Sexual Assault Center at Prince George’s Hospital, even though the preparer of the report was not available to be ³⁸⁹ cross-examined. 1 In support of his position, Green relies on Crawford v. Washington, 541 U.S. 36, 43-44 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004) and its progeny. 2 Because the issue presented is narrow, and because the State does not argue that any error in admitting the report was harmless, our summary of the evidence set forth in part I infra will be limited to facts that: 1) are directly relevant to the issue presented or 2) put the relevant facts in context. I. The State’s Evidence A. Testimony of Ms. G. Prior to January 6, 2008, Ms. G., age 17, and appellant were acquaintances, but Ms. G. did not know appellant’s real name. She knew him by his nickname, “Ant.” On January 6, 2008, appellant called Ms. G. at around 5:00 p.m. and the two agreed to meet.

After they met, appellant suggested that they could “chill” at a friend’s house. When they arrived at what suppos ³⁹⁰ edly was the friend’s house, appellant entered the house through a side window, and then let Ms. G. inside. 3 Ms. G. followed appellant upstairs to a bedroom where appellant rolled a marijuana cigarette, smoked some, and then offered it to Ms. G. who smoked “a little bit,” and then put it aside. Appellant next told Ms. G., “I’m trying to get some, you know.” Ms. G. interpreted those words to mean that he wanted to have sex with her. She replied: “no, I don’t want to do nothing with you.” Appellant offered Ms. G. $200 to have sex with him, but she declined the offer.

Appellant then said: “since you don’t want to let me get some, can I at least suck your titties.” When she refused, appellant became angry, pulled out a gun, and announced: “we’re still going to have sex whether you like it or not.” Ms. G. became upset and started crying, but appellant told her to “shut up and take [her] clothes off.” Ms. G. complied. Appellant put the gun away but then took out a knife. He held the knife close to her face and told Ms. G. to “suck my dick....” She performed oral sex on appellant while the latter was wearing a condom. Appellant next told Ms. G. to turn around.

Ms. G. once again complied and, while on her hands and knees, felt a knife on her “butt,” although she did not see the knife at that point. To Ms. G., the knife felt like it was “[o]n my hole.” Ms. G. then “just went crazy” and started fighting appellant. She grabbed the knife and tried to pull it away, but the knife broke during the struggle. Ms. G. sustained cuts to her hand while trying to pull the knife away from appellant.

Ms. G. ran to a window in order to escape. As appellant tried to pull her back from the window, Ms. G. began yelling for help, both in English and Spanish. Appellant then stabbed Ms. G. in the stomach. ³⁹¹ Appellant next pushed Ms. G. through the mesh screen of the window. As he held Ms. G. by her legs, Ms. G. continued screaming for help.

Appellant then dropped Ms. G. out the window and she landed on a roof, clad only in her bra. A passerby, later identified as Walter Martinez, gave Ms. G. a sweater and called the police. Ms. G. told Martinez that appellant was “trying to rape me.” 4 An ambulance arrived and took Ms. G. to the Washington Hospital Center. There, hospital personnel took pictures of Ms. G.’s injuries and put band-aids on her stomach and legs.

She was next taken to the Sexual Assault Center located at the Prince George’s Hospital Center. On cross-examination, Ms. G. admitted that she originally told police that appellant inserted his penis into her vagina even though he had not done so. She also initially told the police that appellant offered her $2,000 in exchange for sex, which was $1,800 more than the actual offer. She further admitted that she told a nurse that appellant did not point a gun at her.

B. Testimony of Officer Danielle Gray Officer Danielle Gray, of the Hyattsville Police Department, responded to the house in which Ms. G. said she was attacked. Once there, she found Ms. G. “crying hysterically,” with “blood all down her legs.” The officer observed that Ms. G. was not wearing pants or underwear, and was only wearing a bra and the garment that Ms. G. had borrowed from Martinez. Officer Gray also observed cut marks on Ms. G.’s legs, and a stab wound to her stomach. In Officer Gray’s words, the victim “was bleeding really bad.” Officer Gray accompanied Ms. G. when the latter was taken by ambulance to the hospital.

During the ambulance ride, Ms. G. told Officer Gray that appellant “pushed her on the bed and he entered her vagina with his penis and then they started ³⁹² fighting.” Ms. G. also told Officer Gray that appellant cut her on the legs with a knife, and that the cut wound on her stomach was the result of appellant having “stabbed her with the knife.” C. Washington Hospital Center Records With the exception of a few minor redactions, Ms. G.’s entire medical records from the Washington Hospital Center (“WHC”) were admitted. These records show that the patient was admitted to the WHC at 8:26 p.m. on January 6, 2008 and discharged about two hours later. Upon entering the hospital the patient gave a history of having been the victim of an assault. Her major complaint was a “stab wound” to the abdomen and “rape.” A CT scan of the pelvis with contrast was performed along with a focused sonogram of the stomach area.

The results were normal except for a “[superficial stab wound” of the abdomen. Ms. G. was also examined by hospital personnel and, upon discharge, was prescribed Motrin-400 mg every four hours for pain relief. D. Testimony of Officer James Denault Officer James Denault, of the Hyattsville Police Department, collected evidence at the scene of the incident and assisted the lead investigator, Detective Rafael Redmond. He also made arrangements to have Ms. G. examined at Prince George’s Hospital by a sexual assault forensic examiner [“SAFE”] nurse.

The examination by a SAFE nurse was a separate examination from the one earlier performed at WHC and “was for the purpose of examining and collecting evidence for this case.” On cross-examination, Officer Denault and one of appellant’s defense counsel had the following exchange: Q. And as part of your work on this case that you talked about with [the prosecutor], you’re aware that the victim went to Washington Hospital Center? A. Yes, sir, [Ms. G.] ³⁹³ Q. And then while she was there — after she was finished there, you made arrangements for her to be taken to Prince George’s Hospital with a nurse that you called; right? A. Yes. Q. So, you had a list of nurses that you routinely call in cases to help gather forensic evidence; right?

A. Yes. Q. And you actually spent some time trying to track down a nurse and eventually reached a Ms. Slaughter? A. Yes. Q. And you called her and asked her to go and do a totally separate examination from Washington Hospital Center at Prince George’s; right?

A. Yes, sir. Q. And that was for the purpose of examining and collecting evidence for this case; right? A. Yes, Sir. On redirect examination, Officer Denault testified that it is part of police protocol to ask for an examination by a SAFE nurse in cases where a sexual assault has been alleged.

Officer Denault agreed that he normally did not ask regular emergency room hospital personnel to perform sexual assault examinations. E. Testimony of Detective Rafael Redmond Detective Redmond, of the Hyattsville City Police Department, received a report on January 6, 2008, that a man had contacted Hyattsville Police headquarters and reported that he had been robbed at the same address where Ms. G. claimed that she had been attacked. He reported back to police headquarters and discovered that appellant was the person reporting the robbery. Appellant told Redmond that he was robbed at the house in question while he was there with Ms. G. Appellant said that he and Ms. G. went to the house, smoked marijuana, and then, ³⁹⁴ after Ms. G. removed her clothes and got on top of him, Ms. G. pulled a knife on him; after Ms. G. displayed the knife, two other individuals “came from somewhere inside the house and tried to rob him”; a struggle ensued, during which Ms. G. fell out a bedroom window; appellant then fled out the front door.

Detective Redmond took a photograph of appellant on the evening in question and prepared a photo array that included appellant’s photo. Redmond then responded to the Washington Hospital Center where he showed Ms. G. the array. She selected appellant’s photograph from that group of pictures, and told the detective that appellant was the person who “raped” her. Ms. G. also told Detective Redmond that she was forced at knife point to perform oral sex on appellant and that appellant “stabbed her in the stomach.” Further, Ms. G. reported that appellant had ordered her to get on “all fours,” and that when she did so, “she felt like a knife was going inside of her anus.” Detective Redmond took photographs of some of Ms. G.’s injuries, and then, after she was discharged from Washington Hospital Center, “transferred her to Prince George’s Hospital for a sexual assault examination.” Detective Redmond’s testimony as to why Ms. G. was transferred to the Sexual Assault Center was as follows: Q. Going to the next steps.

Based on your information and knowledge of the case, did Diana [Ms. G.] go to another hospital other than where you were speaking to her at any point? A. Yes. Q. Please describe. A. She was then, once she was discharged from the hospital, I think transferred her to Prince George’s Hospital for a sexual assault examination.

Q. And with respect to that examination, do you request certain things of the examiner, or is it up to them what to do? ³⁹⁵ A. I request, and they also do what they normally do for their examination. Q. Well, what do you request? How do you determine what to request of them? A. Depending on the assault, but in this case I requested a swab of her vagina, swab of her anus, a DNA swab of her mouth, and also a vaginal rape kit done.

Q. Did you request anything with respect to testing for drugs used based on her allegation? A. Yes, ma’am. Q. Were you there for that examination? I guess what I’m saying, were you in the room when she was examined?

A. No. Q. At some point, did you become aware that an examination was performed? A. Yes. Q. And that items had been collected upon your request? A. Yes.

Q. Did you subsequently pick up those items? A. Yes, I did. (Emphasis added.) F. Records of the Sexual Assault Center a. The Unredacted Records The unredacted record was marked for identification but not admitted.

That record showed that Ms. G. was admitted to the Sexual Assault Center at 12:09 a.m. on January 7, 2008, and discharged that same morning at 2:30 a.m. The record of Ms. G.’s visit to the Sexual Assault Center was prepared by Lisa Slaughter, a SAFE nurse. Among the information collected by the SAFE nurse was: 1) information concerning the “assailant” including his nickname; 2) type of weapon used by the assailant; 3) the type of drug used by assailant “prior to assault”; 4) whether the ³⁹⁶ assailant was injured by victim; 5) date of victim’s last consensual sexual contact; 6) a pain assessment; 7) amount of “illicit drugs” consumed by the victim at the time “of incident”; 8) a detailed history of the sexual assault, which included such information as a) whether a condom was used; b) whether there was anal or vaginal penetration by the assailant’s penis; c) whether the victim was forced to perform oral sex; d) whether threat or weapons were used. In addition, a detailed physical examination was performed.

Among the observations made during the physical exam by the SAFE nurse was her observation of the victim’s anus. In this regard the report states that the “anal folds” were “positive” because there was a “tear at 6 o’clock and 4 o’clock” with “no bleeding noted.” Also, the victim’s chart includes a diagram of a woman with notations on the picture as to where various abrasions, puncture marks and scratches were observed on Ms. G.’s body. The diagram does not indicate that there was a tear in the anal folds. The SAFE nurse also said in her report that, according to the victim, there was “no vaginal penetration.” The nurse collected an anal swab and ordered lab tests to learn, inter alia, whether the victim was pregnant and whether drugs were in her urine.

Upon discharge two types of medications were prescribed, to treat infections, i.e., Rocephin and Azithro-mycin. b. The Redacted Record As already mentioned, the trial judge did not allow the entire record from the Sexual Assault Center to be admitted. Among the omissions were: 1) entries dealing with where the assault occurred and the identity of the assailant; 2) victim’s medical history; 3) entries concerning the location and intensity of victim’s pain; 4) entries concerning victim’s ingestion of illicit drugs; 5) entries dealing with victim’s history of assault on January 6, 2008; 6) test results, and 7) discharge instructions. What the records that were admitted did include was the diagram of a woman’s body showing where on Ms. G.’s body ³⁹⁷ abrasions, scratches and a “puncture” 5 were observed.

The redacted record also included the page from Ms. G.’s chart dealing with the nurse’s physical examination, which included the nurse’s observation that her examination of the victim’s anus showed a non-bleeding “tear” at “6 o’clock and 4 o’clock” of “the anal folds.” II. The Trial Judge’s Decision To Admit the Redacted Version of The Sexual Assault Center’s Records At trial the court and counsel held lengthy discussions as to what part of the Sexual Assault Center’s record, if any, should be admitted in light of the fact that SAFE nurse Slaughter was unavailable. Defense counsel objected to the admission of any entry concerning what the SAFE nurse said she saw when she examined Ms. G. In particular, defense counsel objected to the nurse’s observation that she saw “two tears” in the anal folds at the 4 o’clock and 6 o’clock positions. That entry, defense counsel argued, was “testimonial,” and should not be admitted because Ms. Slaughter (the out-of-court declarant) was unavailable for questioning.

Moreover, because the defense intended to argue that there had been no proof of anal penetration, the issue of whether there was a “tear” to the anal folds as opposed to merely a fissure, was, in the words of defense counsel, “central to Mr. Green’s guilt or innocence on a charge that carries a life sentence.” 6 ³⁹⁸ The trial judge conceded that whether the nurse’s observation of the anal tears was admissible was an important issue to the defense, but he nevertheless admitted the portion of the record containing that observation. The trial judge explained his ruling as follows: I do believe a lot of what the sexual assault nurse does is a forensic examination. I do believe a great deal of it is in anticipation of litigation. I do not believe all of it is for treatment.

The court continued: After looking at this, and knowing one side wants everything and one side doesn’t, I do believe that at least part of what this nurse did was for medical purposes and does contain routine and descriptive and objectively ascertained and generally reliable facts in it. Therefore, I am going to admit the pages that I have right here in front of me, and I will let you see them, which is the cover sheet, the sexual assault cover sheet, and the following examinations, and I’m going to give you a copy of it. For the record, it will be Page 1, 14, 15, I think it’s 16, it’s smeared, 17 and one sheet diagram. However, even in those pages, I believe on Page 15 where it says, stab wound, I think the word stab is analytical and it is a conclusion.

It is not an observation. To make it stab versus a puncture, I think that does require some type of analytical work as opposed to what one person might call a scratch versus one person calling it an abrasion. I think those are just terms of identification as opposed to terms of any analytical thinking. ³⁹⁹ And I also believe on the diagram [of a woman], specifically, there is a wound above the belly button that says, puncture from knife. I think the word, from knife, is a conclusion and should not be admitted.

But I think puncture is a term similar to a scratch or an abrasion, and I will let it in.

III

Discussion The confrontation clause found in the Sixth Amendment to the United States Constitution states, in relevant part: “in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” 7 The confrontation clause, with one major exception, generally protects the defendant from the government’s use of statements made outside the courtroom as evidence in trial without calling the witness to testify. Crawford, supra, 541 U.S. at 43-43 , 124 S.Ct. 1354 (2004). The major exception to that rule is that an out-of court statement may be used by the government against the accused if the out-of-court statement is “non-testimonial” in nature. Id. at 59 , 124 S.Ct. 1354 .

In other words, absent confrontation, testimonial statements are excluded. 8 ⁴⁰⁰ Although the Crawford Court did not provide a comprehensive definition of the word “testimonial,” the Crawford Court did say: Various formulations of this core class of “testimonial” statements exist: “ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that 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.” Id. at 51-52 , 124 S.Ct. 1354 (internal quotation marks and citations omitted) (emphasis added). The central issue that separates the parties in this appeal is whether the statements by the SAFE nurse fall within the “core class of testimonial statements” that we have emphasized in the just quoted excerpt from Crawford . In State v. Snowden, 385 Md. 64 , 867 A.2d 314 (2005), the task of the Court was to decide whether statements made to a sexual abuse investigator for Montgomery County, by three (alleged) victims of child abuse, were “testimonial” as that latter term was used in Crawford. Id. at 68-69 , 867 A.2d 314 .

The Snowden Court concluded that utilizing objective standards, “an ordinary person in the position of any of the (three) declarants would have anticipated the sense that her statements to the sexual abuse investigator would have been used to prosecute” Snowden. Id. at 84-85 , 867 A.2d 314 . Therefore the Snowden Court said that the victims’ statements were “testimonial” and could not be used because defense counsel was not given an opportunity to cross-examine the declarants. Id. at 84-85, 92 , 867 A.2d 314 .

In the case sub judice, appellant contends that the statements made by nurse Slaughter in her report that were ⁴⁰¹ admitted into evidence were “testimonial” because a reasonable person in the declarant’s (Ms. Slaughter) position would believe that the statements in her report “would be available for use at a later trial.” Crawford, 541 U.S. at 51-52 , 124 S.Ct. 1354 . In support of that position, appellant points out in his brief that the duties of a SAFE nurse are, in large part, concerned with collecting evidence to be used at a criminal trial. We agree with appellant as to this point. The Code of Maryland Regulations (COMAR) spells out the duties of a SAFE nurse, as follows: (1) Perform forensic evidentiary examinations on the victims and alleged perpetrators in connection with physical, sexual, or domestic assaults, whether chronic or acute; (2) Before the forensic evidentiary examination, obtain consent from the individual being examined, from the parent or guardian of a minor individual, or from the proper authority for photographing and evidence collection; (3) Prepare and document the assault history interview; (4) Perform the forensic evidentiary physical assessment; (5) Complete the physical evidence kit provided by law enforcement; (6) Gather, preserve, handle, document, and label forensic evidence, including but not limited to: (a) Labeling evidence collection containers with the patient’s identification factors including police complaint number; (b) Placing evidence in the evidence collection container and sealing the container; (C) Signing the evidence collection container as the collector of the evidence; (d) Taking photographs; and (e) Obtaining swabs, smears, and hair and body samples; (7) Maintain the chain of custody; (8) Provide immediate health interventions using clinical practice guidelines; ⁴⁰² (9) Obtain consultations and make referrals to health care personnel and community agencies; (10) Provide immediate crisis intervention at the time of the examination; (11) Provide discharge instructions; (12) Participate in forensic proceedings including courtroom testimony; (13) Interface with law enforcement officials, crime labs, and State attorney’s offices; and (14) Assist the licensed physician in performing a forensic evidentiary examination.

COMAR 10.27.21.04A (emphasis added). In regards to what a person in Ms. Slaughter’s position would reasonably believe, it is important to note that after Ms. G. received medical attention at the WHC, Officer Denault and Detective Redmond sought out nurse Slaughter and asked her to examine Ms. G. and to perform various tests that were directly connected with the criminal case. As Officer Denault acknowledged, the victim was sent to the Sexual Assault Center “for the purpose of examining and collecting evidence for” the subject case. The State maintains that the statements in Ms. Slaughter’s redacted report were not