State v. Coates

GREENE, J. Frederick Roscoe Coates was convicted, in the Circuit Court for Montgomery County, of Second Degree Rape, Second Degree Sexual Offense, and Child Abuse. The State called two principal witnesses to testify in its case in chief: the ¹³⁴ alleged victim, Jazmyne T., a minor, and Heidi Bresee, a nurse practitioner. Bresee interviewed and examined Jazmyne T. fourteen months after the alleged abuse had ended. Bresee testified that Jazmyne T. told her, during the interview, that Coates “put his private inside [her] private.” After the interview and examination, Jazmyne T. asked Bresee, “Are you going to go out and find him now?” We issued a writ of certiorari to determine whether Jazmyne T.’s statements to Bresee, given fourteen months after the alleged abuse, when Jazmyne T. was not exhibiting any physical manifestation of the abuse, constituted statements made for the purpose of medical treatment or diagnosis pursuant to Md. Rule 5—808(b)(4).

State v. Coates, 402 Md. 355 , 936 A.2d 852 (2007). We hold that where, as in the present case, the circumstances indicate that the declarant was not aware that her statements to a medical practitioner were for purposes of medical treatment or diagnosis, the reliability of her statements is no longer assured, and therefore the statements are inadmissible under Md. Rule 5-803(b)(4). In addition, Jazmyne T.’s statement regarding the identity of her alleged abuser is inadmissible under this exception because the identity of the perpetrator is not ordinarily of strict medical importance, and Jazmyne T. was hot aware that her statement was relevant to medical treatment or diagnosis. FACTUAL AND PROCEDURAL BACKGROUND On October 7, 2004, the Grand Jury for Montgomery County indicted Frederick Roscoe Coates, respondent, on two counts of Rape in the Second Degree, two counts of Sexual Offense in the Second Degree, and one count of Child Abuse.

The alleged victim of these offenses is a minor named Jazmyne T. She was born on December 19, 1995, and the alleged acts took place in September 2002, but were not discovered until approximately one year later. At the time the alleged acts took place, Coates lived with Jazmyne T.’s mother, Kimberly Jenkins, and was involved in a romantic relationship ¹³⁵ with Jenkins. Often, when Jenkins was away from home, she left Coates alone to care for Jazmyne T. On March 18, 2005, Coates filed a Motion in Limine, asking the Circuit Court to exclude, inter alia, the testimony of Heidi Bresee, a nurse practitioner who was employed at the Shady Grove Adventist Hospital Sexual Abuse and Assault Center. Bresee is a forensic nurse practitioner. 1 At the time of trial, she had conducted over 500 sexual assault exams, and had testified in court approximately 56 times.

Bresee examined Jazmyne T. on November 14, 2003, 2 when she obtained a patient history by interviewing Jazmyne T. and conducted an external vaginal examination. This meeting occurred in Bresee’s office, which also served as an examination room. In his Motion in Limine, Coates argued that Bresee’s testimony would not assist the trier of fact, that it lacked a sufficient factual basis, and that it would invade the jury’s role in judging the credibility of a witness. Coates also argued that Bresee’s testimony would violate the Confrontation Clause of the United States Constitution. 3 In its response, ¹³⁶ filed April 4, 2005, the State noted that its intent in calling Bresee was to show that the physical findings upon examination were consistent with Jazmyne T.’s allegations of repeated abuse.

The State argued that Bresee’s testimony would not violate the Confrontation Clause, because Jazmyne T., the declarant, would testify at trial. The State further asserted that Jazmyne T.’s statements to Bresee were made for the purpose of medical diagnosis or treatment and therefore, should be permitted pursuant to Md. Rule 5—803(b)(4), even though the statements are hearsay. 4 At a hearing on April 7, 2005, to exclude Bresee’s testimony, the State noted that Bresee would not testify with regard to Coates’ access to Jazmyne T., which was one of the reasons for Coates’ objection to Bresee’s testimony. On this basis, the court denied the motion, reasoning that “based on the State’s proffer as to the limited questions they intend to ask about the interview with Jazmyne, and the issue of the physical findings as they relate to and [are] consistent with multiple acts of sexual intercourse [and/or] digital penetration.” Bresee testified, in relevant part, as follows: 5 [BRESEE]: Ms. Jazmyne T. presented with her mother, Kimberly Jenkins. They were brought back to the waiting ¹³⁷ room, and I was notified that my patient was there.

So, I went and brought her back to my office, which also serves as an examination, or an interview and an office area, and I introduced myself. I tell both Jazmyne and her mother, Kimberly, that I need to get some basic information on where she lives, who she lives with, things she does for fun, her medical history, and also go through what we call a “review of symptoms” and that’s looking to see if she has any, you know, stomachaches or earaches or any complaints of illness today, the day that I see them. [PROSECUTOR]: Why do you do that? [BRESEE]: To determine if they are complaining of anything that would warrant for their medical assessment and treatment. You know, if she told me she was having, you know, pain when she urinated, then I would get a urinalysis or, you know, my treatment plan would be tailored accordingly. After I do the initial information, then I ask if it’s all right if I speak -with Jazmyne alone and I explain to her that it’s very important that I hear from her why she’s here to see me.

And, you know, in this case, you know, it was not a problem for her to meet with me alone, so I showed her mother the waiting room. [PROSECUTOR]: If you could tell me specifically what Jazmyne told you during your interview? [BRESEE]: After identifying the anatomical parts on the doll, I began the medical forensic interview, and I say the same thing to every child that I am a special nurse who works with kids who might have been touched in a way that hurt or bothered them and could they tell me if something like that had happened to them. And do you want me just to go through with what she said? [PROSECUTOR]: If you could. [BRESEE]: Okay. She said, and I asked her if she understood, and she said, “Yes, I do.” And I asked, “Has anything like that ever happened to you?” and she said, ¹³⁸ “Yes.” And I asked if she could tell me about that, and her response was, “Well, the first one was Bikey.[ 6 ] He was my mother’s ex-boyfriend. He put his private inside my private.” I asked, “How many times did he do that to you?” and her response was, “A lot of times.” I asked, “Do you remember when this happened?” and she said, “A long time ago.” I asked, “Do you remember how old you were?” and she said “No.” I asked her if Bikey had made her do anything else and she said, ‘Wes.

He made me lick his private, and he would lick my private too.” I asked if she ever saw anything come out of his private, and she said, “Yes, white stuff.” And then I asked her if Bikey had, “Did Bikey tell you not to tell anyone?” and she said, “Yes. He told me not' to tell my mommy. He told me if I would let him do it to me, then I could go see my mommy and he would also let me smoke a cigarette.” I asked, “You smoked a cigarette?” because it kind of took me off guard, and she responded, “Yes. Bikey gave it to me after he put his private in me.” I asked her, “Do you remember if it hurt when he did that?” and she said, “Yes.

It hurt a lot. I cried.” I asked her if she ever remembered seeing blood. She said, “Only when Carl[ 7 ] put his fingers inside me. That made me bleed.” So I asked her to finish talking about Bikey before she told me about anything else, and she agreed.

And I asked, “Is there anything else about Bikey I should know?” and she said, “Yes. He did it to my friend Eomy,” and then she spelled her friend’s name, E-O-M-Y. “He touched her butt, but she won’t tell her mommy. Her mommy’s name is ¹³⁹ Mikko. Eomy will talk to me and her friends about it, but she doesn’t want to talk to her mommy about it.” And I asked at that point if she, if Jazmyne had told Ms. Karen Vasserman, the CPS worker, about her friend Eomy, and she said, “Yes.” And then I asked specifically if Bikey had ever shown her pictures of people without their clothes on, and she said, ‘Tes.

He showed me pictures in magazines and a movie on TV.” And then I asked if there was anything else about Bikey I should know, and she asked me, “Are you going to go out and find him now?” and I responded, “No, but Detective Buckley is working hard to find him.” On May 25, 2005, after a trial in the Circuit Court, the jury returned a verdict of guilty to one count of Second Degree Rape, one count of Second Degree Sexual Offense, and one count of Child Abuse. Because the jury did not reach a verdict on the second count of Second Degree Rape and the second count of Second Degree Sexual Offense, the court declared a mistrial as to those counts. On October 13, 2005, the court imposed a sentence of 20 years each for the Second Degree Rape conviction and the Second Degree Sexual Offense, to run concurrently, and a consecutive 15 year sentence for the Child Abuse conviction. On October 20, 2005, Coates noted an appeal to the Court of Special Appeals.

The intermediate appellate court reversed the judgment of the Circuit Court, on the basis that Bresee’s testimony was improperly admitted, and that the admission of her testimony was prejudicial. Coates v. State, 175 Md.App. 588, 629 , 930 A.2d 1140, 1163-64 (2007). The court noted that Coates’ identity, as revealed by Jazmyne T. to Bresee, was not pathologically germane to treatment, and therefore did not qualify under the hearsay exception. Id. at 627-28 , 930 A.2d at 1163 .

Furthermore, the court pointed out that although Bresee had a dual purpose for her interview and examination, both medical and investigatory, her overarching purpose was investigatory. Id. at 627 , 930 A.2d at 1162 . Finally, the court noted that, given the significant time delay between the alleged abuse and the interview by Bresee, coupled with the fact that Jazmyne T. was not experiencing any medical problems at the ¹⁴⁰ time of the interview, it is unlikely that Jazmyne T. understood the medical purpose for the interview. Id. at 628-29 , 930 A.2d at 1163 .

Thereafter, the State filed a petition for writ of certiorari in this Court, which we granted. 8 State v. Coates, 402 Md. 355 , 936 A.2d 852 (2007). DISCUSSION It is clear that a medical practitioner who has been admitted as an expert at trial can testify about his or her observations made during an examination, and his or her medical conclusions, including symptoms and history received from the patient during the course of the examination. State v. Allewalt, 308 Md. 89, 98 , 517 A.2d 741, 745 (1986). In Beahm v. Shortall, 279 Md. 321 , 368 A.2d 1005 (1977), this Court held that statements of existing pain or feeling, past symptoms and medical history, made by the patient to the expert medical practitioner, are admitted not for their truth, but as a basis for the medical practitioner’s opinion, formed as a result of the patient’s statements.

Beahm, 279 Md. at 327 , 368 A.2d at 1009 . In the present case, the statements made by Jazmyne T. to Bresee were offered for their truth, and we must therefore determine whether they are hearsay, and if so, whether they fall within any recognized exception to the hearsay rule. Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” ¹⁴¹ Md. Rule 5—801(c). There are two threshold questions, therefore, to determine whether evidence qualifies as hearsay: “(1) whether the declaration at issue is a ‘statement,’ and (2) whether it is offered for the truth of the matter asserted.” Bernadyn v. State, 390 Md. 1, 10 , 887 A.2d 602, 607 (2005).

In the present case, Jazmyne T.’s statements to Bresee, as recounted by Bresee through her testimony, are hearsay, because they are statements offered for their truth. Hearsay is not admissible at trial, unless it qualifies under a recognized exception or is “permitted by applicable constitutional provisions or statutes.” Md. Rule 5-802. See also Myer v. State, 403 Md. 463, 479 , 943 A.2d 615, 624 (2008). The rationale for “the hearsay rule is that the many possible sources of inaccuracy and untrustworthiness which may lie underneath the bare untested assertion of a witness can best be brought to light and exposed, if they exist, by the test of cross-examination.” 5 John Henry Wigmore, Evidence in Trials at Common Law, § 1420 at 251 (Chadbourn rev. ed. 1974).

We have said that “[t]he hearsay rule prevents using out-of-court statements for their truth because such statements are unreliable bases from which to infer the declarant’s beliefs (the declarant may have been insincere or used ambiguous language), or the accuracy of those beliefs (the declarant’s perception or memory may have been faulty).” Bernadyn, 390 Md. at 14 , 887 A.2d at 610 . The exceptions to the hearsay rule are derived from the principle that under certain circumstances, “the statement offered is free enough from the risk of inaccuracy and untrustworthiness, so that the test of cross-examination would be [superfluous].” Wigmore, § 1420 at 251. One such exception is now embodied in Md. Rule 5-803(b)(4). This rule provides, in relevant part, that: ¹⁴² are not excluded by the hearsay rule.

The rationale underlying this particular exception is that “the patient’s statements to his [or her] doctor are apt to be sincere when made with an awareness that the quality and success of the treatment may largely depend on the accuracy of the information provided the physician.” Candella v. Subsequent Injury Fund, 277 Md. 120, 124 , 353 A.2d 263, 265 (1976); see also Webster v. State, 151 Md.App. 527, 536 , 827 A.2d 910, 914-15 (2003) (noting that “the patient’s statements are apt to be sincere and reliable because the patient knows that the quality and success of the treatment depends upon the accuracy of the information presented to the physician”) (quoting In re Rachel T., 77 Md.App. 20, 33 , 549 A.2d 27, 34 (1988)). ¹⁴¹ “[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” ¹⁴² This exception, however, does not apply to cases in which a non-treating physician is merely preparing to testify on the patient’s behalf. Candella, 277 Md. at 124 , 353 A.2d at 265 ; Yellow Cab Co. v. Hicks, 224 Md. 563, 571 , 168 A.2d 501, 505 (1961) (noting that a physician whose sole purpose was to testify in court does not come within the exception to the hearsay rule); see also Maryland Dep’t of Human Resources v. Bo Peep Day Nursery, 317 Md. 573, 589 , 565 A.2d 1015, 1023 (1989) (determining that “as a general proposition, statements of medical history, made by a patient to a