Metropolitan News-Enterprise


Wednesday, May 11, 2022


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Ninth Circuit:

Confrontation Clause Not Defied by Admitting Nurse’s Recitation of Victim’s Statements

Majority Says Statements in Hospital by Sexually Assaulted Woman Were Properly Related in Testimony; Victim Had Died


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals, in a 2-1 decision, yesterday rejected the contention of a man convicted of a sexual assault and other offenses that his right under the Confrontation Clause had been violated where a nurse testified as to what the victim told her concerning the attack, under the circumstance that the woman had died prior to trial from causes unrelated to the crime.

Circuit Judge Paul J. Watford and Senior Circuit Judge Michael Daly Hawkins authored the memorandum opinion affirming the District Court’s denial of a petition for a writ of habeas corpus filed by Odece Dempsean Hill. Circuit Judge Richard Paez dissented, insisting that the victim’s statement to the nurse was testimonial in nature and that Hill was unable to confront his accuser.

Hill was convicted of crimes in connection with the sexual assault on a pregnant teenage girl in 2001. After Hill and two other intruders in the victim’s apartment had left, the victim went into premature labor and was taken to a hospital.

A forensic nurse, Karyn Rasile, asked a standard question: “Tell me why you’re here.” The victim described the attack in detail, and the nurse, on the stand, recounted what she said.

That testimony came years after the attack. It was not until 2011 that a DNA match linked Hill to the events.

He was charged with one count of burglary, four counts of kidnapping, four counts of aggravated assault, seven counts of sexual assault, and one count of attempted sexual assault, and was convicted by a jury on all counts. Hill was sentenced to prison terms totaling 91.5 years.

The Arizona Court of Appeals, in affirming Hill’s conviction in a Nov. 4, 2014 opinion, held that the defendant’s right under the Sixth Amendment’s Confrontation Clause had not been abridged. That clause provides:

“In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.”

Arizona Court’s Analysis

The court said that while “[c]ourts routinely admit victims’ statements made in response to questions necessary for medical treatment,” a more difficult situation exists where “the testifying witness is a trained forensic medical professional” who has dual functions: “to gather evidence for a criminal investigation and to provide medical care to the victim.”

It drew this conclusion:

“The open-ended question (‘Tell me why you are here’), posed to the victim in the emergency room, was not aimed at collecting evidence but at gathering information about the victim’s medical condition. The objective circumstances of the exchange that produced the statement thus indicate that its primary purpose was medical treatment, not the collection of evidence of a crime.”

On Nov. 6, 2020, U.S. District Court Judge Dominic W. Lanza of the District of Arizona denied habeas relief. He cited an opinion of the District Court for the Eastern District of Louisiana saying:

“Given the absence of clearly established federal precedent on the Confrontation Clause’s application to statements made for both medical and legal purposes, the state court did not contravene, or unreasonably apply, clearly established Supreme Court jurisprudence in denying petitioner’s claim.”

Ninth Circuit’s Decision

The Ninth Circuit’s majority yesterday declared:

“The stare court applied the correct legal standard and conducted a fact-intensive analysis of the objective circumstances of the nurse’s examination. No decision of the Supreme Court clearly establishes that this fact-intensive analysis was incorrect. Because fairminded jurists could disagree about whether the primary purpose in these circumstances was medical treatment or providing evidence for later criminal prosecution. Hill is not entitled to habeas relief.”

Paez didn’t see it that way.

“It was clearly established law at the time of the state appellate court’s decision that a defendant’s Sixth Amendment Confrontation right is violated when a testimonial statement is admitted at trial despite the declarant being unavailable and the defendant having had no prior opportunity to cross-examine the declarant,” he wrote.

Quoting from the U.S. Supreme Court’s 2006 opinion in Davis v. Washington, Paez said:

“To determine whether a statement is testimonial, we ask whether the ‘primary purpose’ of the interrogation was ‘to enable police assistance to meet an ongoing emergency,’ which would render the statement nontestimonial, or to ‘establish or prove past events potentially relevant to later criminal prosecution.’ which would make the statement testimonial.”

Considering the relevant factors, the dissenter insisted, a reasonable person would “perceive that the examination’s primary purpose, including the question ‘why are you here,’ was to gather evidence for a subsequent criminal prosecution.” He asserted that the Arizona court’s “application of clearly established federal law was unreasonable.”

The case is Hill v. Attorney General for the State of Arizona, 20-17369.


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