Webster v. State

ADKINS, Judge. In this appeal from a child sexual assault conviction, we must decide whether a four-year old victim’s description of the assault communicated to a nurse trained in Sexual Assault Forensic Examination (“SAFE”) was admissible under Md. Rule 5-803(b)(4), the hearsay exception covering statements made “for purposes of medical diagnosis or treatment.” We shall hold that it was, even though there were dual medical and forensic purposes for the challenged statement. ⁵³¹ FACTS AND LEGAL PROCEEDINGS On the evening of August 6, 1999, Evelyn Francis hosted a “safe sex” meeting sponsored by the health department. Children of the guests and Francis’ four-year old daughter, Tiarah E., heard the ice cream truck, got money from their parents, and went to get snowballs. Tiarah dropped hers.

Neighbor Joy Reid told her to go into her apartment and get an icee out of the freezer. Tiarah went into Reid’s apartment unattended. While in the apartment, Tiarah used the bathroom. Tiarah reported that she was seated on the toilet when a strange man came into the bathroom.

According to Tiarah, the man licked her “tu-tu all the way inside.” She asked him to stop, but “he keeped on and keeped on.” Francis explained that “tu-tu” or “do-do” was her daughter’s name for her vagina. When Reid came inside looking for Tiarah, she saw Tiarah with Webster, whom she recognized as an occasional companion of Reid’s mother. Webster was touching Tiarah’s pants. Reid took the crying child to her mother.

Reid and Francis returned to Reid’s apartment with the child. There, Reid beat Webster with a broom, and Francis threw a beer bottle at him. Webster then fled the apartment building. Police arrived shortly after the incident.

The first officer on the scene was Deputy First Class Dawn Wolf of the Harford County Sheriffs Office. Wolf spoke with Tiarah, Francis, and Reid. She and Francis then took Tiarah to Fallston General Hospital, where they were met by Corporal Michael Crabbs, a detective with the Harford County Sheriffs Child Advocacy Center. The hospital had staff doctors and nurses trained to conduct sexual assault forensic examinations.

SAFE nurse Linda Holden interviewed Tiarah before she and SAFE physician Dr. Steven Bentman examined the child. Tiarah told Holden “that a man that she didn’t know had licked her do-do and she told him not to and he said he was going to keep on doing it.” Crabbs met with Webster three days after the incident. On August 9, 1999, Webster walked into the police station and ⁵³² asked if there was any “paperwork” for him. The officers on duty said no, then contacted Crabbs.

Crabbs asked Webster if he would voluntarily meet with him. Webster told him that he would be “more than happy to come in and talk” about the incident. During the ensuing interview, Webster gave a recorded statement, a transcript of which was admitted into evidence at trial. He left after the interview.

Six days after the incident, Crabbs interviewed Tiarah along with licensed clinical social worker Kimberly Parkes-Bourn. A videotape of that interview was played for the jury. 1 Tiarah acknowledged that she had met Crabbs “at the hospital____ [w]hen I had a needle.” She showed her interviewers the needle mark on her arm. • Parkes-Boum asked what Tiarah talked to Crabbs about at the hospital. She replied, “I was talking about that man that licked me on my tu-tu.” She explained that he was “a stranger” who was at Reid’s home “[w]hen Joy told me to get an icee.” Ms. Parkes-Boum: At Joy’s house? And there was a man at Joy’s house? [Tiarah]: Yeah.

And there was a stranger. He licked me. When Joy came and saw it. I asked him—I asked her where he did it and she—and she start the whipping.

When I was in the bathroom, when I had to use the bathroom a man came beside me, he turned off the light, he closed the door. Ms. Parkes-Boum: When you were in the bathroom? [Tiarah]: Yeah. Ms. Parkes-Bourn: He turned off the light, and closed the door. Where did this happen? [Tiarah]: At Joy house.

And I was screaming. ⁵³³ Ms. Parkes-Boum: You were screaming? [Tiarah]: Yeah. Ms. Parkes-Bourn: What happened after the lights were turned off and the door was closed? [Tiarah]: I turned them back on and he was going to sleep. I went out the door. Ms. Parkes-Boum: Okay.

You said that he came in when you were going to the bathroom? [Tiarah]: Yes, when I had to use the bathroom. He licked it all inside. Ms. Parkes-Bourn: He—he licked what? [Tiarah]: My tu-tu all the way inside. He pulled down my stuff and he licked it all the way down.

Ms. Parkes-Boum: And this was when the lights were off in the bathroom and the door was closed? [Tiarah]: No. The light was off and the door was not closed. The door was open. Ms. Parkes-Boum: The door was open? [Tiarah]: And he keeped on and keeped on. When he was bending down he did that.

Ms. Parkes-Boum: When he was bending down? [Tiarah]: And he put his chin next to me. Then he licked it. As the interview proceeded, Tiarah said that the assault occurred in various other locations, including the living room, hallway, patio, and even her own home. Her description of what happened that day became increasingly confused.

Among other things, she said that her assailant “snatched my toys” and “swallowed” one until his throat was “cut off,” that he “peed on [m]y head and I changed my head,” that “[h]e broke my fingers” but “my mommy fixed it,” that he “put his finger in my mouth” and it was broken, and that “his whole body was burned.” She also described “[a] different stranger” who “digged his finger in my tu-tu” and “bit my nail off,” and “another stranger coming across the lake, ... a stranger boy” who “was trying to grab me” and “put me in the water,” but “I changed my clothes and he peed on me.” ⁵³⁴ In October, Crabbs received notice from the crime lab that “amylase,” which is an indicator for human saliva, had been detected on the inside crotch of Tiarah’s underpants and on one of two labial swabs. At trial, serologist Argiro Magers testified that only saliva would generate the dark blue hue that appeared when Tiarah’s labial swab and underpants were tested. Amylase may be present in smaller amounts in other body fluids, including gastrointestinal fluids, but Magers could not say whether saliva present in vomit would produce a similar hue. Subsequent DNA testing showed that the same underwear tested positive for mixed DNA from two people.

When the police could not locate Webster, they obtained a warrant for his arrest. The FBI arrested Webster on that warrant in July 2000. At that time, Webster’s blood and saliva samples were taken. Based on the those samples, a Maryland State Police crime lab technician concluded that it was 1.1 million times more likely that this mixture originated from Tiarah ... and Marvin Clark Webster than from Tiarah ... and one unknown individual in the Caucasian population and is 3.7 million times more likely to have originated from Tiarah ... and Marvin Clark Webster than from Tiarah ... and one unknown individual in the African-American population.

At trial, Webster testified in his own defense. He denied putting “his mouth or tongue on Tiarah[’s] private parts.” He told the jury that after work, he drank three beers and most of a pint of gin, then went to visit Reid’s mother. He drank more beer and they had sex. After Reid’s mother left, Webster felt sick.

He vomited, urinated, and defecated in the bathroom, then returned to the bedroom. When he came but, he saw a little girl standing in the doorway of the bathroom. Observing that the child’s shorts were “twisted,” he “gave her a hand twisting them back around correctly.” The child pointed toward the door, saying “green ice cream.” Webster gave her some change. At that point, Reid came in and “just started going off.” To escape from Reid and Francis, Webster fled the apartment building. ⁵³⁵ A jury in the Circuit Court for Harford County convicted Webster of a second degree sex offense.

Webster noted this appeal. DISCUSSION Webster asks us to reverse his conviction for two reasons: I. The trial court erred in admitting statements that Tiarah allegedly made to a SAFE nurse, to the effect “that a man that she didn’t know had licked her do-do and she told him not to and he said he was going to keep on doing it.” II. The trial court erred in giving a curative instruction, rather than granting a mistrial, after it allowed the jury to hear an inadmissible statement by the child to a police officer. We find no reversible error in the decision to admit Tiarah’s statement to the SAFE nurse, and no abuse of discretion in the denial of a mistrial.

I. Admissibility Of Tiarah’s Statements To The SAFE Nurse A. Hearsay Exception For Statements In Contemplation Of Medical Diagnosis Or Treatment Under Md. Rule 5—803(b)(4), certain statements made for purposes of medical diagnosis or treatment are admissible as exceptions to the rule against hearsay: The following are not excluded by the hearsay rule, even though the declarant is available as a witness: ... 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 exter ⁵³⁶ nal sources thereof insofar as reasonably pertinent to treatment or diagnosis in contemplation of treatment. “The rationale behind this exception is 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.” In re Rachel T., 77 Md.App. 20, 33 , 549 A.2d 27 (1988); see Low v. State, 119 Md.App. 413, 418-19 , 705 A.2d 67 , cert. denied, 350 Md. 278 , 711 A.2d 870 (1998). The exception specifically contemplates the admission of statements describing how the patient incurred the injury for which he is seeking medical care. For example, “if the doctor needed to know the source of the injury in order to determine treatment ..., the patient’s statement as to source should be admissible, particularly if the doctor told the patient that the information was necessary for proper treatment.” 6A Lynn McClain, Maryland Evidence § 803(4):1, at 218 (2d ed.2001)(collecting cases).

The rationale underlying this firmly rooted hearsay exception “ ‘extends to statements made in seeking medical treatment from others such as nurses[.]’ ” Choi v. State, 134 Md.App. 311, 321 , 759 A.2d 1156 (2000)(quoting McClain). But the “need to know” premise for the exception means that it does not extend to statements made to nontreating medical personnel. In Maryland Dep’t of Human Resources v. Bo Peep Day Nursery, 317 Md. 573, 589 , 565 A.2d 1015 (1989), cert. denied, 494 U.S. 1067 , 110 S.Ct. 1784 , 108 L.Ed.2d 786 (1990), the Court of Appeals explained why statements made to treating medical personnel fit within this exception, but those made to medical providers who merely examine a sexual assault victim do not. “Under the law of evidence, as a general proposition, statements of medical history, made by a patient to a treating medical practitioner for the purpose of treatment, may be admitted as substantive evidence through the medical witness.” Id. at 589, 565 A.2d 1015 (citations omitted). “Consequently, statements made to a nontreating physician, such as an expert preparing for an upcoming trial, ⁵³⁷ are not admissible as substantive evidence^]” 2 In re Rachel T., 77 Md.App. at 34 , 549 A.2d 27 . For this reason, courts must separately examine both the reason that a medical provider asked the sexual assault victim to describe the assault, and the victim’s subjective purpose in making the statement.

See id. at 33-34 , 549 A.2d 27 . Only statements that are both taken and given in contemplation of medical treatment or medical diagnosis for treatment purposes fit within the Rule 5-803(b)(4) hearsay exception. See id.; Cassidy v. State, 74 Md.App. 1, 27-50 , 536 A.2d 666 , cert. denied, 312 Md. 602 , 541 A.2d 965 (1988). B. Tiarah’s Statement To The SAFE Nurse Just before SAFE nurse Linda Holden testified, defense counsel questioned whether Tiarah’s statements to her fit within this exception.

In response, the trial court ordered a brief in limine hearing in which Holden was examined outside the presence of the jury “to see whether ... part of her testimony is admissible under Rule 5-803(b)(4).” The court noted specifically that it needed “some qualifying testimony” regarding “exactly what was going on in the taking of the rape kit and the presentation of this child[.]” On direct examination, Holden explained that “a SAFE nurse is ... a registered nurse with emergency training and critical care training who then goes on to take other classes regarding the collection of evidence for sexual assault patients.” The prosecutor then asked Holden about the proce ⁵³⁸ dures for patients who come to the emergency room reporting a sexual assault. [Holden]: The procedure is that first the patient would have to be medically cleared. In other words, we would have to look at them for injuries or medical problems. Then once they are cleared by a physician "regarding their status medically, then the sexual assault nurse is called in to do an evidence collection exam and to treat or look for sexually transmitted diseases and treatment against them. The Court: Treat or look for? [Holden]: Sexually transmitted diseases and we prophylac-tically treat them, give antibiotics for that. [Prosecutor]: In what manner do you examine whether ... she has a sexually transmitted disease? [Holden]: We do a test for syphilis, which is a blood test.

We send that to our lab in the hospital. We do vaginal swabs for gonorrhea and chlamydia. [Prosecutor]:.... [Y]ou take a history from your patients? [Holden]: Right. [Prosecutor]: What is the portion of that history dealing with sexually transmitted diseases? [Holden]: Well, initially when they give a history you are looking for injuries and so on. In the SAFE nurse’s case, when we take a history, we are looking for any mechanism of injury and also we’re looking for ... what evidence we should be trying to take from the victim.... [Prosecutor]: In what manner would a history by a patient help you in treatment? [Holden]: Well, basically patients who are traumatized don’t always feel pain as early as they might. They could have an injury that would be hidden that they wouldn’t be able to tell us about.

So, we ask a lot of questions around the mechanism of what happened to them so that we know what to look for. We might need to do an x-ray. They are not feeling any pain, we could find a hidden injury, an internal injury that they don’t even know they have. So, we have to get a history to ⁵³⁹ find out what happened to them basically so that we know what to look for to take care of them.

(Emphasis added.) The prosecutor then questioned Holden about Tiarah’s examination. [Prosecutor]: What treatment did Tiarah ... have in this case? [Holden]: As I remember, the only actual treatment that Tiarah had was that we collected evidence from her and we did sexually transmitted disease testing for her. I don’t recall any other treatment for her. [Prosecutor]: In what manner was she tested for sexually transmitted diseases? What did you have to do in order to do that? [Holden]: Well, I drew [blood] from her which I sent to the lab and we tested for syphilis. The physician took some swabs from around the vaginal area that we tested for gonorrhea and chlamydia.

On cross-examination, defense counsel questioned Holden about the test kit and forms used in the examination. Holden acknowledged that the standard rape and sexual assault kit included a “physical examination and collection of evidence, rape and sexual assault form[.]” She also acknowledged that, in addition to information regarding the physical condition of the patient, this form included certain questions “basically related to evidence collection,” including whether the patient had showered or urinated, because “that would tend to show that evidence might not otherwise be there.” The form also featured a checklist of evidence sent to the police laboratory, an authorization to collect physical specimens during physical and gynecological examinations, and another authorization to transmit copies of medical and lab reports to the police. Other questions on the form had both an evidence preservation and medical purpose. For example, if responses to “general appearance” questions indicated bloody or torn clothing, Holden “would be looking for an injury[,]” because “sometimes patients don’t know that they have an injury.” ⁵⁴⁰ Defense counsel then asked Holden about the medical examination that is performed before she interviews the patient. [Defense Counsel]: And you see them after the doctor has already seen them for the purpose of treatment? [Holden]: I see them after the doctor has had a brief initial exam, yes.

The doctor sees them again after I see them, too----[I]n the case of children, the SAFE nurse does not do the vaginal swabs. That is only in the case of adults.... When it is children the physician actually does it and we just assist him, accompany and assist him.... [Defense Counsel]: So, Tiarah had already been seen by a doctor? [Holden]: The routine is that the physician sees sexual assault patients briefly to determine whether there is a medical problem that would take precedence over doing an evidentiary exam. In other words, if they were highly physically traumatized and they had take care of something medical first.

It is a brief exam. They don’t really do a physical exam particularly, they just go in and talk to them to see how they are doing and then they tell us to come in. [Defense Counsel]: And do the evidentiary exam is what you’re saying? [Holden]: Yes. On re-direct, Holden clarified that the medical care and interview that takes place before the SAFE examination is limited to treatment of “major medical problems” and “major trauma.” As a routine, the patient comes in and they see an Emergency Room nurse who is' considered a primary care nurse and they do the initial assessment; the initial vital signs, the weight, the height, blood pressure, pulse, all of that, history of medications and allergies and medical problems. They ask some very brief questions in terms of just finding out again if we have a major medical problem or major trauma to deal with.

They don’t ask very much related to the actual assault. Then the physician sees the ⁵⁴¹ patient and looks at how they are and whether or not they are able to undergo this exam. Then they call us and we come in and ... interview the patient again regarding what happened and the mechanism of what happened so that we can again catch any possible injuries that could have occurred and then we do an evidence collection exam. But we also do some medical things, too, looking for the sexually transmitted diseases and that sort of thing.

If we have reason, ... we have some orders that include how to care for injuries and prophylaxis against sexually transmitted diseases and that sort of thing. Since we are nurses, we do go ahead and take care of that part of things, too. (Emphasis added.) Tiarah’s medical chart showed that the examinations of Tiarah followed this standard procedure. She went from a triage nurse, who took an initial brief history, vital signs, height, and weight, into a room in the emergency department, where a primary care nurse assigned to her took “a quick look.” Then the ER physician assessed that there was no medical treatment necessary before the SAFE examination, and that Tiarah could tolerate that examination.

If, for example, the doctor had determined that Tiarah needed stitches or x-rays, that treatment would have occurred before the SAFE examination. Finding none necessary, “they call[ed] the SAFE nurse[.]” Holden and Dr. Bentman performed a pelvic exam. Holden explained that there was an important medical reason for the SAFE team to perform that medical procedure: In order to check for a STD you have to do a cervical swab. If they do that cervical swab before [the SAFE nurse and doctor] come in[,] this poor patient is exposed twice to having a pelvic exam, which is an invasive exam and not a lot of fun.

So, we try to do it only one time. Holden also explained how Tiarah’s statement about the incident was relevant to her medical diagnosis and treatment. Basically she told me that she was on her way with some other friends to get a snowball and that she stopped in the ⁵⁴² apartment of a friend in their building. She was using the bathroom and that a man whom she didn’t know had come in and began to lick her tu-tu or her do-do I believe she called it to me.

I needed to ask her what she meant by dodo and she pointed to her vaginal area. So, my treatment for her would be that that would be what we would look at in terms of the transmission of a sexually transmitted disease and in terms of where we would collect evidence, too. We would be looking at taking underwear and taking labial swabs. Finally, Holden recounted that Tiarah also made a similar statement to the triage nurse. [W]hen the triage nurse called me, I was told that she told the triage nurse that a man had licked her tu-tu.

Whether they wrote it or not, I’m not sure. The triage nurse actually writes in the chart that the mother stated that the child was licked in the vaginal area, but the information that I had from the triage nurse was that the child has been licked in the vaginal area. Defense counsel argued that Holden’s testimony and notes about Tiarah’s description of the incident should not be admitted under the medical diagnosis or treatment exception because Holden had no treatment role. He characterized the prosecution’s claim that there was “some small amount of medical activity” as “exaggerations” designed “to try to give [the SAFE exam] a medical bent[.]” The prosecutor pointed to evidence that Holden was present and actively assisted Dr. Bentman while he performed the pelvic exam, and that they took blood and swabs that were tested for venereal diseases.

Nevertheless, she conceded that Holden’s testimony established that there was “a dual purpose” for the SAFE examination, and that Holden was acting as both a nurse and a forensic examiner, “to take care of her patient” and “to collect evidence.” The prosecutor also argued that Tiarah, like any sexual assault victim, was “there for treatment” and “could [not] have contemplated that the making of those statements was for ⁵⁴³ prosecution purposes.” She pointed out that Tiarah described her experience at the hospital in medical terms, commenting in her videotaped interview that she went to the hospital to get “a needle.” Moreover, there was no other reason for Tiarah “to believe that any statement that she made and any action taken by a nurse or a physician as a result of that statement [was] going to be used in a court of law later on[.]” The trial court ruled that Holden’s testimony and medical records about Tiarah’s description of the incident were admissible. Having heard Ms. Holden testify, the [c]ourt finds that it does fit within the exception. You can have more than one purpose for the exam. In this case what I have been hearing is you have the triage nurse who is doing triage, coming in and taking a look and saying ... where are we in the priority of treating this person, do we need to stop bleeding or take care of [other] things.

You then have the doctor that takes a cursory look and then we bring in the SAFE nurse who also takes a look for the purposes of treating the injuries. As I think she alluded to, somebody can be in shock or upset, ... and they are not aware that they have broken bones or internal injuries, ... and they are taking the further information. Very strongly throughout this is, of course, the issue of diagnosing for the STD----[Y]ou can have your ribs fractured and internal organs bruised and everything else and, of course, the most serious that can be dealt to you is the transmission of a sexually transmittable disease.... So, frankly that is a very critical part of administering care in a sexual assault case.

That is the function of this nurse. The mere fact that they are also helping from a forensic standpoint doesn’t negate the medical portion that they are playing. In this case [the hospital] policy is, rather than a nurse tak[ing] the actual swab, she calls the physician in to do it and she assists. That doesn’t change anything from what she is doing when she obtains the statement. ⁵⁴⁴ So, the [c]ourt finds that this easily fits within [the exception] and ... will deny the [defendant's objection to that statement coming in.

(Emphasis added.) C. Admissibility Of Dual Purpose Statement “When the prosecution attempts to offer hearsay evidence against a defendant, the trial judge must determine (1) whether the State has satisfied the foundational requirements of a recognized exception, and (2) if so, whether the admission of this hearsay statement would violate the defendant’s right of confrontation.” Joseph F. Murphy, Jr., Maryland Evidence Handbook § 705(B), at 278 (3d ed.1999); see Gregory v. State, 40 Md.App. 297, 323-24 , 391 A.2d 437 (1978), cert. denied, 471 U.S. 1103 , 105 S.Ct. 2333 , 85 L.Ed.2d 849 (1985). This Court has applied- the treating-examining distinction under Md. Rule 5-803(b)(4) in cases featuring circumstances similar to some of the circumstances present in this case. In Choi v. State, 134 Md.App. 311, 322 , 759 A.2d 1156 (2000), we recognized that statements describing an assault, when made immediately after the incident to emergency medical personnel such as paramedics, may qualify as statements for medical diagnosis and treatment purposes. In Cassidy and In re Rachel T., we observed that one important reason for a sexual assault examination is to determine whether the victim contracted a sexually transmitted disease.

See In re Rachel T., 77 Md.App. at 36 , 549 A.2d 27 ; Cassidy, 74 Md.App. at 34 n. 14, 536 A.2d 666 . Webster challenges whether a statement describing a sexual assault, made during a physical examination that was conducted for dual forensic and medical purposes, is admissible under Rule 5-803(b)(4). Neither the Court of Appeals nor this Court has answered this question. In Low v. State, 119 Md.App. 413, 426 , 705 A.2d 67 (1998), cert. denied, 350 Md. 278 , 711 A.2d 870 (1998), the trial court decided that such a dual purpose statement was admissible, ⁵⁴⁵ but we reversed on other grounds.

In that case, a social worker referred a 12 year old girl to a Department of Health and Human Services physician. After examining the child, the doctor concluded