Low v. State

THIEME, Judge. Boyd Caleb Low, the appellant, was convicted by a jury in the Circuit Court for Montgomery County of second degree rape, second degree sexual offense, and child abuse. On appeal, he raises five questions, which we have reordered and reworded: 1. Did the trial court err in finding that the State’s expert was a treating physician who was permitted to relate hearsay? 2.

Did the trial court err in denying a mistrial after the court itself referred to what “the defendant” did instead of what “the perpetrator” did? 3. Did the trial court err in excluding from evidence the fact that the Department of Social Services had determined that a previous complaint by the victim was unfounded? 4. Did the trial court err in admitting the appellant’s statement that he had kissed the victim? 5. Did the trial court err in permitting the prosecutor to suggest that the child victim “pretend like it is just you and me in the room”? ⁴¹⁶ Because we reverse the decision of the trial court based on the first issue presented on appeal, we need not reach the merits of the remaining four issues.

Background The appellant is the brother-in-law of Janine Knott. When Janine was eleven years old, her father died. The appellant and his wife then moved in with Janine’s family, and the appellant undertook Janine’s care and supervision during those times when her mother was away from the home. At trial, Janine testified that the appellant took her to his bedroom and to a shed in the yard at times when no other adults were home.

With great reticence, Janine testified that appellant touched her in a “private part” in the “front” and in the “back,” and that he “stuck something into me,” which hurt. She made an in-court identification of the appellant. On cross-examination, Janine admitted telling several lies, including one that got the appellant into trouble with her mother. On 30 April 1996, Janine was examined by Dr. Narita Estampador-Ulep, a pediatrician and child abuse expert.

Janine was then twelve years old. The doctor testified that Janine’s vagina and anus both showed evidence of trauma and penetration by a foreign object. In relating what Janine had told her, the doctor did not refer to the appellant by name or by the designation “defendant.” She further testified that Janine told her that she was hurt when “the perpetrator” put his penis in her vagina and in her “butt” more than ten times. We shall reserve for that portion of our opinion dealing with issue one further facts related to the testimony of Dr. Estampador-Ulep. .

The appellant denied abusing Janine and attributed her dislike of him to his attempts to fulfill her father’s role as disciplinarian. On cross-examination, Janine admitted that this made her angry. Following a four day trial the appellant was convicted of the aforementioned offenses and subsequently sentenced to consecutive terms of incarceration totaling 55 years, with all but ⁴¹⁷ sixteen years suspended, to be followed by a term of probation. This timely appeal was then noted.

The Legal Foundation The appellant first complains that the trial court erred in ruling that Dr. Estampador-Ulep was a treating physician and, ergo, it erred in admitting various portions of her testimony at trial. In addressing that issue, we seek guidance from Maryland Rule 5-803, entitled “Hearsay Exceptions: Unavailability of Declarant Not Required.” Subsection (b)(4) of that rule specifically provides that the following statements are admissible at trial regardless of availability of the declarant: Statements for Purposes of Medical Diagnosis or Treatment.— Statements made for purposes of medical treatment or medical diagnosis in contemplation of treatment and describing medical history, or past or present symptoms, pain, or sensation, or the inception or general character of the cause or external sources thereof insofar as reasonably pertinent to treatment or diagnosis in contemplation of treatment. A decade ago this Court had occasion to consider the rationale behind the rule in Cassidy v. State, 74 Md.App. 1, 536 A.2d 666 (1988). 1 In that case, Cassidy was convicted by a ⁴¹⁸ jury of child abuse and assault stemming from alleged acts of physical abuse committed upon the two-year-old daughter of Cassidy’s live-in girlfriend. Central to that case was whether Cassidy was, in fact, the perpetrator of the acts.

Three days after the occurrence of the abusive conduct that formed the basis for the charges against Cassidy, the victim was brought to Prince George’s County General Hospital, where she was examined by Dr. Pullman, a representative of Child Protective Services. During the course of the examination, Dr. Pullman noticed several signs of physical abuse, as well as potential sexual molestation. When asked on several occasions, ‘Who did this to you,” the victim simply replied, “Daddy.” 2 74 Md.App. at 5-6 , 536 A.2d 666 . The State offered as one of several theories of admissibility that the victim made the declarations to a physician consulted for the purpose of treatment. 74 Md.App. at 25 , 536 A.2d 666 .

In exploring that contention, we explained the traditionally recognized rationale behind admitting such statements, notwithstanding their presumptive untrustworthiness as hearsay: Whether dealing with existing bodily feelings, past symptoms, or medical history as to the cause or source of the bodily condition, the guarantee of trustworthiness was precisely the same. Spontaneity was no longer the guarantee. ⁴¹⁹ The guarantee, rather, was that no one would willingly risk medical injury from improper treatment by withholding necessary data or furnishing false data to the physician who would determine the course of treatment on the basis of that data. 74 Md.App. at 26 , 536 A.2d 666 ; see also Candella v. Subsequent Injury Fund, 277 Md. 120, 124 , 353 A.2d 263 (1976) (testimony by a treating physician as to the medical history of a patient “is admitted under an exception to the hearsay rule, the underlying rationale being that the patient’s statements to his doctor are apt to be sincere when made with an awareness that the quality and success of treatment may largely depend on the accuracy of the information provided the physician”); Parker v. State, 189 Md. 244, 249 , 55 A.2d 784 (1947) (“It may be seen that, when attended by a physician for the purpose of treatment, there is a strong inducement for the patient to speak truly of his pains and sufferings.... ”). That exception to the hearsay rule does not apply, however, when the physician is acting in a capacity other than as a treating physician. In the case of an examining physician, for example, the guarantee of trustworthiness that accompanies the testimony of a treating physician is no longer present.

As the Court of Appeals explained in Candella, supra, at 124 , 353 A.2d 263 : In Maryland, however, we have not extended this principle [of allowing an attending physician to testify as to the medical history as related by the patient] to include the case in which the patient’s history has been related to a nontreating physician, Rossello v. Friedel, 243 Md. 234, 241-42 , 220 A.2d 537 (1966); Wilhelm v. State Traffic Comm., supra, 230 Md. [91] at 97, 185 A.2d 715 [1962]; see Wolfinger v. Frey, 223 Md. 184, 190-91 , 162 A.2d 745 (1960); Parker v. State, 189 Md. 244, 248-50 , 55 A.2d 784 (1947); in these instances, the trustworthiness which characterizes the declaration is no longer assured, since the patient is aware that the statements are being received primarily to enable the physician to prepare testimony on his behalf rather than for purposes of diagnosis and treatment. ⁴²⁰ Thus, while statements made to an examining physician may be admitted at trial, they may be so admitted only for the limited purpose of showing the expert’s reasons for his or her opinion. The hearsay statements may not, however, be admitted as substantive evidence. Cassidy, 74 Md.App. at 28-29 , 536 A.2d 666 (citing Beahm v. Shortall, 279 Md. 321, 327 , 368 A.2d 1005 (1977)). With the foregoing law as our predicate, we continued in Cassidy to determine whether the victim’s assertions to Dr. Pullman that, in effect, “Daddy did this,” were made to a treating physician and admissible at trial despite the fact that they were undisputably hearsay, or whether they were made only to an examining physician and, accordingly, inadmissible hearsay.

For numerous reasons, we held in Cassidy that the victim’s statements to the physician did not qualify as statements made in contemplation of medical treatment because Dr. Pullman was not a treating physician. 3 The critical reason espoused by our Court was because it could not be shown from the record that the victim in Cassidy “ha[d] a strong motive to speak truthfully and accurately because the treatment or diagnosis (would] depend in part upon the information conveyed.” 74 Md.App. at 29 , 536 A.2d 666 . To the contrary, the evidence indicated that the two-year-old victim in that case possessed no understanding as to why Dr. Pullman was questioning her. We further explained: The doctrinal predicate — the underlying reassurance of trustworthiness — upon which this entire exception to the Hearsay Rule rests was, therefore, entirely lacking in this case. The two-year-old declarant did not understand the nature or purpose of her interview with Dr. Pullman.

She was not mature enough to appreciate the critical cause-and-effect connections between accurate information, correct medical diagnosis, and efficacious medical treatment. She ⁴²¹ was not advanced enough to possess the concerned physical self-interest which is at the very core of this particular evidentiary theory. 74 Md.App. at 30 , 536 A.2d 666 . 4 The bottom line in Cassidy was that the assertions by the two-year-old child to the physician were inadmissible hearsay. The Factual Foundation Turning to the instant case, the underlying facts that neither the parties nor this Court disputes are as follows: Dr. Estampador-Ulep, a pediatrician and child abuse expert, was employed by the Montgomery County Department of Health and Human Services (“DHHS”); then twelve-year-old Janine was referred to Dr. Estampador-Ulep by a social worker for a complete medical evaluation; during the course of her examination of Janine, Dr. Estampador-Ulep performed a comprehensive review of the child, including eyes, ears, nose, throat, skin, cardiovascular, muscular, skeletal, central nervous system, social adjustment, and sleeping disturbances, as well as ordering laboratory tests; during the course of that examination, Dr. Estampador-Ulep noted evidence of sexual trauma to Janine; subsequent to the examination, Dr. Estampador-Ulep was of the opinion that no further medical treatment of Janine was necessary; and, Dr. Estampador-Ulep never saw Janine again. The State and trial court alike viewed those facts in their totality as a sufficient definition of a “treating physician” within Rule 5 — 803(b)(1).

Because Dr. Estampador-Ulep was at best an examining physician, we cannot agree. ⁴²² Reconciling the Legal Foundation with the Factual Foundation In finding that Dr. Estampador-Ulep was a treating as well as an examining physician for the purpose of Rule 5-803(b)(4), the trial court considered the plethora of testimony elicited on the issue and ultimately held: Based on the testimony that I have heard, it is clear, number one, that Dr. Estampador-Ulep is an examining physician. I cannot conclude that she is only an examining physician who came into this case solely for the purpose of rendering an opinion as an expert with respect to child abuse or sexual abuse. The examination here was not only for that purpose, regardless of how Janine came to her, but was also for the purpose of possible treatment. Her exam went further than just an exam of the genital or rectal or anal area.

She examined the patient in her entirety for possible treatment. And I cannot but conclude that based on the testimony I have heard in this case that Dr. Estampador-Ulep was an examining and a treating physician. None of the reasons given by the trial court as to why Dr. Estampador-Ulep was a treating physician is availing. We explain.

First, the doctor’s standard operating procedure of taking an oral history from the patient’s parent, meeting with the patient, and asking the child patient if he or sbe knew why he or she was there does not in and of itself qualify her as a treating physician. Dr. Estampador-Ulep testified that after following the previous procedures she then “might say mom or dad is concerned about your health because of some unhappy experience that might have happened to you.” There was, however, no evidence adduced at trial that Janine was in fact asked if she knew why she was there, or, even if asked, what Janine’s reply might have been. In other words, Dr. Estampador-Ulep’s usual operating procedure, even if employed in ⁴²³ relation to Janine, did not give the impression of a doctor who would necessarily treat Janine on future occasions. In fact, when asked by defense counsel what her purpose was in conducting the examination of Janine, Dr. Estampador-Ulep replied only “[f|or complete medical evaluation.” No mention was made by the doctor of potential treatment.

Second, Dr. Estampador-Ulep also testified that had the examination of Janine suggested the need for further medical treatment she would then have asked Janine’s mother if she wished Dr. Estampador-Ulep to perform that treatment or preferred that Janine’s private physician continue such treatment. The doctor also explained that had Janine’s mother wanted her to provide the treatment she could have and would have provided it. For two reasons, however, this fact does not qualify the doctor as a treating physician under the applicable rule. Preliminarily, this Court is not entirely convinced by the record that Dr. Estampador-Ulep “could have” provided such continuing treatment to Janine even had her mother so desired.

In the Shady Grove Adventist Hospital Report prepared as a result of the examination of Janine, the following language appears on a page entitled “Follow-Up Instructions — Sexual Abuse and Assault”: You can continue care at one of these agencies: 1. Your personal physician 2. STD Clinic, Montgomery County Health Department, Silver Spring, 217-1760 3. Community Clinics 4.

Community Health Centers 5. Planned Parenthood 6. Other_ Check marks were placed next to items number one (your personal physician) and three (community clinics) as potential options for Janine. Not only was there no suggestion that Janine could receive follow-up treatment from Dr. Estampador-Ulep at DHHS, but, according to the form, that was not ⁴²⁴ even an option for Janine’s mother to pursue.

And, with the obvious inclusion of a catchall category of “other” with the capability of specifying another mode of treatment on a blank line, we have trouble understanding why Dr. Estampador-Ulep’s name was not inserted as an option under number six if she could have subsequently treated Janine. Nevertheless, even assuming for the sake of argument that Dr. Estampador-Ulep could have provided Janine with subsequent treatment, the subjective beliefs of the doctor as to what she could and would do are immaterial to the issue. The heart of the issue returns to the guarantee of trustworthiness emphasized in Cassidy , and, in order to maintain that trustworthiness, Janine must have contemplated the possibility of further treatment by the doctor. The fact that Dr. Estampador-Ulep thought she could give Janine follow-up treatment does not mean that Janine knew she could receive such followup treatment from the doctor, absent evidence that Dr. Estampador-Ulep communicated those intentions to Janine or Janine’s mother.

And in the case at bar we have no such evidence before us. Additionally, even if Dr. Estampador-Ulep had rendered treatment, her doing so would have been incidental and secondary to her primary role as a forensic examiner. Third, in determining that Dr. Estampador-Ulep was a treating as well as an examining physician, the trial court relied on the fact that Janine was given a complete physical examination in areas other than those affected by the alleged sexual abuse. We cannot reach the conclusion, as did the trial court, that because Janine was examined in areas of her body other than those pertaining to potential sexual abuse she necessarily realized that the doctor could perform further treatment of her.

The conclusion that we instead draw is that a child of twelve years, 5 who has never before been seen by a ⁴²⁵ doctor (and will never again be seen by this doctor), who is poked at and prodded in virtually every area of her body, and who is asked a multitude of questions, some quite sensitive in nature, is most likely, at the very least, an extremely intimidated little girl, who has little grasp of why she was sent to this strange doctor in a strange setting. If anything, Janine had a right to be downright suspicious as to why the doctor was examining her in body areas other than those stemming from the complained of incident, and that, in our opinion, would have promoted Janine’s distrust of and perhaps dishonesty with the doctor much more than it would have facilitated a relationship of trust. As we pointed out in In re Rachel T., 77 Md.App. 20, 34 , 549 A.2d 27 (1988), the declarant’s subjective purpose in making any statements to a physician is of vital importance in determining whether to admit those statements as substantive evidence even though hearsay. And, given the facts before us, we find no evidence that Janine’s subjective intent when being examined and interviewed by Dr. Estampador-Ulep was to communicate potential ailments or abuse in hopes of further treatment.

In sum, given the specific facts in this case, we can reach no other conclusion except that Dr. Estampador-Ulep saw Janine for the sole purpose of examining and detecting child abuse. We do not doubt that, under a different set of circumstances, Dr. Estampador-Ulep could have provided Janine with additional treatment if necessary. Nevertheless, Dr. Estampador-Ulep was, in essence, a part of the prosecution team. At no time did she render treatment to Janine, and the doctor’s subjective observation that she might have rendered treatment had treatment been necessary should not control the determination of her role for purposes of the admission of hearsay evidence.

Put in general terms, the mere ability to render treatment does not automatically give rise to the inference that one is categorically a “treating physician” as Rule 5-803(b)(4) contemplates the term. Something more is ⁴²⁶ needed than the mere possibility that further treatment could be rendered. If that were not the case, then any DHHS doctor who examines a child would qualify as a treating physician within 5 — 803(b)(4). Or, taken to its utmost extreme, any doctor who examines an individual could arguably “treat” that individual if necessity called for it.

Would, then, every doctor who examines a person qualify as a “treating physician?” Certainly not, or the rule would be rendered utterly meaningless. Furthermore, there is no question that the appellant was prejudiced by Dr. Estampador-Ulep’s testimony in the case at bar. Granted, Janine did testify at trial, but only as a very reluctant witness whose testimony was at best vague and disjointed and at worst incoherent. Therefpre, it cannot be said by any stretch of the imagination that the doctor’s testimony was merely a recitation or reinforcement of what Janine herself had already testified.

Because we are not willing to extend Rule 5 — 803(b)(4) beyond what we believe to be the intent of that rule, we shall reverse the judgment of the trial court. JUDGMENTS REVERSED; COSTS TO BE PAID BY MONTGOMERY COUNTY. 6 PAUL E. ALPERT, Judge (retired), Specially Assigned, dissents with an opinion. PAUL E. ALPERT, Judge (retired), Specially Assigned, dissenting. I respectfully dissent from the majority’s holding that the trial judge erred in allowing Dr. Estampador-Ulep to testify as a treating physician. ⁴²⁷ In discussing this issue, my focus is upon Rule 5 — 808(b)(4), which provides: Statements for Purposes of Medical Diagnosis or Treatment — Statements made for purposes