State v. Tsosie ( 2022 )

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1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
2 Opinion Number: ___________________
3 Filing Date: July 14, 2022
4 NO. S-1-SC-38418
5 STATE OF NEW MEXICO,
6 Plaintiff-Petitioner,
7 v.
8 OLIVER TSOSIE, a/k/a
9 OLIVER O. TSOSIE, a/k/a
10 OLIVER OLIN TSOSIE,
11 Defendant-Respondent.
12 ORIGINAL PROCEEDING ON CERTIORARI
13 Alisa A. Hart, District Judge
14 Hector H. Balderas, Attorney General
15 Maris Veidemanis, Assistant Attorney General
16 Santa Fe, NM
17 for Petitioner
18 Bennett J. Baur, Chief Public Defender
19 Kimberly Chavez Cook, Appellate Defender
20 Santa Fe, NM
21 for Respondent
1 OPINION
2 BACON, Chief Justice.
3 {1} This case requires that we apply evolving Confrontation Clause jurisprudence
4 following Crawford v. Washington, 541 U.S. 36 (2004), to statements made by an
5 alleged victim, now unavailable, in the course of a sexual assault nurse examiner
6 (SANE) exam. On interlocutory appeal, the State challenges the Court of Appeals’
7 affirmance of the district court’s pretrial ruling that almost all statements made by
8 Declarant Kimbro Talk to SANE nurse Gail Starr were inadmissible as violating
9 Defendant Oliver Tsosie’s confrontation rights under the Sixth Amendment. The
10 district court concluded that Declarant’s statements sought by the State for use at
11 Defendant’s trial were testimonial in nature, and thus inadmissible, pursuant to
12 Crawford and Davis v. Washington, 547 U.S. 813 (2006). We reverse and, without
13 ruling on other considerations of admissibility, hold that almost all of the excluded
14 statements are nontestimonial in nature and thus do not violate Defendant’s rights
15 under the Confrontation Clause.
16 I. BACKGROUND
17 A. Factual Background
18 {2} Based on events on or about December 18, 2017, Defendant was charged with
19 kidnapping, criminal sexual penetration, aggravated burglary, aggravated battery,
1 aggravated assault, and bribery of a witness. The State’s allegations included that
2 Declarant argued with Defendant after admitting Defendant and an unknown male
3 into his apartment. Defendant allegedly held a knife from Declarant’s kitchen to
4 Declarant’s throat, struck and kicked Declarant, and then strangled Declarant to
5 unconsciousness. Upon regaining consciousness, Declarant allegedly was restrained
6 on the floor by the unknown male while Defendant was anally penetrating Declarant
7 with his penis. Defendant and the unknown male allegedly tied up Declarant and
8 then stole some of his belongings. Before leaving, Defendant allegedly threatened
9 to return with the unknown male to kill Declarant if he reported the events to police.
10 Declarant subsequently freed himself and called 911 from his neighbor’s apartment.
11 {3} Following treatment that night at the University of New Mexico Hospital
12 (UNMH) emergency room, Declarant was referred for additional examination and
13 treatment by the SANE department. Declarant was transported by law enforcement
14 to the Family Advocacy Center where he underwent the SANE examination
15 conducted by Starr. The eighteen-page SANE exam report in which Starr recorded
16 Declarant’s statements was admitted as State’s Exhibit 3 (“SANE exam report”) at
17 a motion hearing on October 9, 2018.
2
1 {4} Because Declarant died in June 2018, he is unavailable to testify, and the
2 record offers no evidence that Defendant had an opportunity to cross-examine
3 Declarant regarding his statements recorded in the SANE exam report.
4 B. Procedural Background
5 {5} Following a pretrial hearing regarding various evidentiary issues, the district
6 court concluded that it required testimony from Starr before making a determination
7 about the admissibility of Declarant’s statements in the SANE exam report.
8 Accordingly, the district court held a hearing for that purpose.
9 {6} At the hearing, Starr was qualified as an expert in the area of sexual assault
10 nurse examinations. Starr’s testimony included the purpose of a SANE exam
11 generally:
12 [W]e are a medical exam. It’s very important to treat somebody who
13 has been a victim of trauma . . . to give them support and psychosocial
14 support . . . to do a safety assessment, make sure they’re not at risk for
15 re-offense, re-harm . . . to give them medications to prevent sexually
16 transmitted diseases, to help their body and help them feel . . . less dirty
17 . . . to give them resources to assist them to heal. We also do forensic
18 photography . . . and . . . for sexual assault, we also do the sexual assault
19 evidence kit as a part of the exam, as well.
20 Starr testified as to her specialized training as a SANE nurse, her limited ability to
21 make a nursing diagnosis rather than a physician’s medical diagnosis, and the
22 circumstances of the SANE program’s medical clinic. Starr also testified at length
23 as to the underlying purposes of each portion of the SANE exam report the State
3
1 sought to admit in the instant case. We include this testimony below where it is
2 relevant to the analysis.
3 1. The district court’s order regarding admissibility of statements in the
4 SANE exam report
5 {7} Central to this appeal, the district court issued an order recounting Starr’s
6 hearing testimony. The order specified statements within nine portions of the SANE
7 exam report which the State intended to elicit at trial through Starr’s testimony.
8 Then, the court set forth a testimonial analysis under Crawford, stated as findings of
9 fact and conclusions of law. The court’s order admitted four statements made in the
10 SANE exam that had “an ascertainable purpose that was primarily for medical
11 treatment.” Eight portions of the SANE exam report were ruled inadmissible—
12 challenged here by the State—due to those statements “not [being] made for the
13 primary purpose of seeking medical treatment and [being] testimonial hearsay and a
14 violation of Defendant’s right to confrontation.”
15 {8} Starr’s testimony as recounted in the order included that she “has received
16 specialized training to assess genital injuries and injuries caused by strangulation”
17 and that “[a]s a SANE nurse, she can treat but cannot diagnose a patient.” The order
18 noted Starr’s testimony that the SANE clinic “is located in the same building” as law
19 enforcement “but in a separate area” and that Declarant “was brought to the clinic
20 by law enforcement.” The order also noted that “[a] CT scan of [Declarant] was
4
1 conducted by UNMH prior” to the SANE exam. It further noted that “[a] SANE
2 examination will be performed regardless of whether the patient reports the assault
3 to law enforcement.” The order included a nonexclusive list from Starr’s testimony
4 as to underlying medical purposes for Declarant’s statements sought by the State for
5 use at trial.
6 {9} For legal authorities guiding its analysis, the district court quoted portions of
7 State v. Romero regarding testimonial analysis. See Romero, 2007-NMSC-013, ¶ 7,
8 141 N.M. 403, 156 P.3d 694 (“‘Statements are . . . testimonial when the
9 circumstances objectively indicate that there is no . . . ongoing emergency, and that
10 the primary purpose of the interrogation is to establish or prove past events
11 potentially relevant to later criminal prosecution.’” (quoting Davis, 547 U.S. at12 822)); id. ¶ 21 (“[T]he level of formality of the interrogation is a key factor in
13 determining whether statements are ‘testimonial’ within the meaning of Crawford.”
14 (citing Davis, 547 U.S. at 830)). The district court also cited State v. Largo for the
15 proposition that “[t]he actions and statements of both the interrogator and the
16 declarant may illuminate the primary purpose of the interrogation.” See 2012-
17 NMSC-015, ¶ 16, 278 P.3d 532. The district court did not cite United States Supreme
18 Court confrontation jurisprudence subsequent to Davis.
5
1 {10} The district court set out six findings of fact. These findings provided that
2 “[t]he examination occurred in a structured setting,” that the SANE exam report’s
3 multiple “forms suggest[ed] structured questioning,” that Declarant “consent[ed] to
4 release all records and evidence to law enforcement,” that Declarant “had been seen
5 and treated at UNMH emergency room prior to” the SANE exam, that “[a]lthough
6 [Declarant had been] seen at UNMH and received a CT scan, genital examinations
7 are referred to [the] SANE” program, and that “[a]lthough there is a dual purpose in
8 a SANE examination, including a medical evaluation and police investigation, the
9 majority of statements by [Declarant] recount[ed] what the abusers did, who did it,
10 and what [Declarant] did that might affect collection of evidence in the Post-Assault
11 Hygiene Activity section of the structured [SANE exam report] form” on page 3.
12 {11} The order’s analysis then set out four apparent legal conclusions:
13 [1] The primary purpose of a majority of the examination by the
14 SANE nurse was not for medical treatment of [Declarant] but for
15 purposes of forensic investigation, collection of physical
16 evidence, and to ascertain the identity of the assailants.
17 [2] Other than the genital examination, the primary purpose of the
18 SANE examination was to prove some past fact for use in
19 criminal trial rather than to meet an ongoing emergency making
20 the majority of [Declarant’s] statements to the SANE nurse
21 testimonial in nature.
22 [3] Viewed objectively, the majority of statements given to the
23 SANE nurse were not given for the primary purpose of medical
24 diagnosis. The SANE nurse testified she is not able to make a
6
1 diagnosis. [Declarant] had already been seen at UNMH and there
2 was no indication that UNMH lacked necessary medical
3 equipment for proper medical examination, diagnosis, and
4 treatment.
5 [4] Because the SANE nurse receives specialized training in
6 assessing genital injuries and it is not uncommon for a SANE
7 nurse to receive a referral from emergency rooms for genital
8 examinations, limited statements made by [Declarant] to the
9 SANE nurse would qualify as nontestimonial hearsay falling
10 under the exception in Rule 11-803(4) [NMRA].
11 {12} The district court’s order then set out the four statement categories ruled both
12 as admissible under the Confrontation Clause and as exceptions to hearsay,
13 accompanied by the court’s reasoning. Declarant’s statements regarding not having
14 prior genital symptoms were admitted, because “[a]lthough [Declarant] had been
15 seen at UNMH prior to the SANE exam, [Declarant] was referred to [the] SANE
16 [program] for the genital exam.” Declarant’s statements were admitted regarding
17 both “penile penetration of the anus and ejaculation inside a body orifice.” The
18 former statement was admitted regarding “[t]he [bodily] location of penetration and
19 the object used” because, “[a]lthough it is a statement of a past event,” Declarant
20 “had been referred for a genital examination that was being conducted by” Starr. The
21 latter statement was admitted because Starr “testified that this question is asked to
22 address a concern about illness and disease, making the primary purpose for this
23 statement for medical treatment.” Finally, Declarant’s statements describing his pain
7
1 and the level of pain were admitted, because neither statement regarded past events
2 and both “directly relate[d] to [Declarant’s] medical treatment.”
3 {13} The district court’s order ruled statements in eight portions of the SANE exam
4 report inadmissible under the Confrontation Clause:
5 a. Statements regarding consent for services [in the page 1]
6 Albuquerque SANE Collaborative Exam Consent Form.
7 b. Statements contained in the top portion of the [page 2] Sexual
8 Assault Intake form.
9 c. Statements contained in the page 3 [History form,] . . . except for the
10 statement that [Declarant] had no prior genital symptoms prior to
11 the assault.
12 d. Statements contained in [the] page 5 . . . Strangulation
13 Documentation. The State seeks to introduce the statements of
14 [Declarant] describing method and manner of strangulation.
15 Although[] [Starr] has specialized training in injuries caused by
16 strangulation, objectively, the primary purpose of these structured
17 questions [is] not for medical treatment and focus[es] on past events,
18 not current symptoms.
19 e. Statements contained in [the] page 7 . . . Patient Narrative.
20 f. Statements contained in [the] page 8 . . . Acts Described by Patient
21 . . . except . . . penile penetration of the anus and ejaculation inside
22 a body orifice.
23 g. Statements contained in [the] page 9 . . . Physical Exam . . . except
24 for the description of [Declarant’s] level of pain.
8
1 h. Statements contained [in the page] 11 . . . Body Map – Physical
2 Exam/Assessment [that explain how the injuries noted on the page
3 10 SANE Body Map occurred].1
4 These constitute the statements challenged by the State before this Court.
5 2. The Court of Appeals’ opinion
6 {14} In a memorandum opinion, the Court of Appeals agreed with the district court
7 that admission of the challenged statements would violate Defendant’s Sixth
8 Amendment right to confrontation. State v. Tsosie, A-1-CA-37791, mem. op. ¶ 1
9 (N.M. Ct. App. July 21, 2020) (nonprecedential).
10 {15} For its legal framework, the Court of Appeals relied on the seven principles
11 we articulated in State v. Navarette, 2013-NMSC-003, ¶¶ 7-13, 294 P.3d 435, as
12 “‘essential’ to an analysis under the Confrontation Clause.” Tsosie, A-1-CA-37791,
13 mem. op. ¶ 13 (quoting Navarette, 2013-NMSC-003, ¶ 7 (citing Crawford, 541 U.S.
14 at 36)). Relevant here is the second Navarette principle that “‘a statement can only
15 be testimonial if the declarant made the statement primarily intending to establish
16 some fact with the understanding that the statement may be used in a criminal
1
We note that the fourth and fifth actual pages of the SANE exam report were
not numbered in the document’s numbering sequence at the bottom left margin,
leading to the sixth actual page being identified at its bottom left margin as “Page 4
of 13,” and all subsequent pages being numbered correspondingly. In accordance
with the district court’s order, we refer to each page by the sequence number of the
actual page.
9
1 prosecution.’” Id. (quoting Navarette, 2013-NMSC-003, ¶ 8). The Court also cited,
2 among others, Ohio v. Clark, 576 U.S. 237, 249 (2015), and State v. Mendez, 2010-
3 NMSC-044, ¶ 29, 148 N.M. 761, 242 P.3d 328. Tsosie, A-1-CA-37791, mem. op. ¶
4 13. The Court concluded from the foregoing authorities that it should apply “a
5 totality of the circumstances approach: interpreting the testimonial nature of each
6 statement individually, guided by the circumstances in which it was made, and
7 evaluating both the intent of the declarant and the interviewer.” Tsosie, A-1-CA-
8 37791, mem. op. ¶ 14.
9 {16} The Court of Appeals rejected the State’s argument that a SANE nurse’s
10 questioning is sufficiently distinct from a law enforcement officer’s
11 “‘interrogat[ion]’” to preclude the primary purpose of a SANE exam being “‘to
12 establish or prove past events potentially relevant to later criminal prosecution.’” Id.13 ¶ 15 (quoting Davis, 547 U.S. at 822). The Court agreed that a SANE nurse is “‘not
14 principally charged with uncovering and prosecuting criminal behavior,’” id.
15 (quoting Clark, 576 U.S. at 249), but cited their “‘dual role’” against a presumption
16 that statements made to a SANE nurse must be nontestimonial, id. (quoting Mendez,
17 2010-NMSC-044, ¶ 42).
18 {17} Analyzing the surrounding circumstances, the Court of Appeals concluded
19 “that [Declarant] understood that at least some of his statements would be used to
10
1 prosecute Defendant.” Id. ¶ 16. The key circumstances considered in the Court’s
2 analysis were that Declarant “was taken . . . by law enforcement” to the SANE exam,
3 “was asked in detail about the assault during the examination, was asked to provide
4 forensic genital and anal swabs, and consented to the release of information to law
5 enforcement.” Id. ¶ 16.
6 {18} Applying its analysis above “to each individual statement,” the Court of
7 Appeals held that Declarant’s “narrative account of the encounter” and his
8 “description of the method and manner of strangulation” are “testimonial in that
9 [they] identif[y] Defendant and accuse[] him of specific acts.” Id. ¶ 17. The Court
10 also held that “the remaining statements the district court excluded are testimonial
11 because they focus on past events rather than current symptoms.” Id.
12 {19} Finally, the Court of Appeals rejected the State’s argument that, based on the
13 district court’s failure to indicate its rejection of uncontradicted evidence, the district
14 court disregarded Starr’s uncontradicted testimony. Id. ¶ 18 n.1. The Court stated
15 that “[i]n cases such as this where a district court does not explicitly make any
16 findings regarding the credibility of a witness, ‘[a]ll reasonable inferences in support
17 of the district court’s decision will be indulged in, and all inferences or evidence to
18 the contrary will be disregarded.’” Id. (quoting State v. Jason L., 2000-NMSC-018,
19 ¶ 10, 129 N.M. 119, 2 P.3d 856).
11
1 {20} Pursuant to the State’s petition in compliance with Rule 12-502 NMRA, we
2 issued a writ of certiorari to review this case. On appeal to this Court, the State
3 advances three primary arguments in support of the admissibility of the challenged
4 statements. First, no prior New Mexico law governs here, thus rendering
5 admissibility of statements to the SANE nurse in this case an issue of first
6 impression. Second, a trend in confrontation caselaw from other jurisdictions
7 supports the admissibility of statements made in the course of a SANE exam. Third,
8 the district court and the Court of Appeals in this case improperly disregarded Starr’s
9 uncontradicted testimony concerning the primary purpose of the SANE exam.
10 II. DISCUSSION
11 {21} Because Crawford fundamentally altered Confrontation Clause jurisprudence
12 regarding the admissibility of statements made by unavailable declarants, we first
13 discuss relevant admissibility standards developed under Crawford and its progeny.
14 Because the United States Supreme Court has not applied those standards to
15 statements made in the course of a SANE exam, we turn also to New Mexico
16 caselaw, which is consistent with Crawford and its progeny. Finally, we apply these
17 considerations to the instant case and analyze the rulings of the courts below.
18 {22} We note as a preliminary matter that constitutional confrontation analysis is
19 merely the threshold consideration for admissibility in this circumstance. Cf. State
12
1 v. Attaway, 1994-NMSC-011, ¶ 8, 117 N.M. 141, 870 P.2d 103 (recognizing
2 “threshold constitutional issues” that require determination before other
3 considerations). The admissibility of any statement that survives confrontation
4 analysis remains subject to state and federal rules of evidence, including hearsay and
5 balancing of probative value versus prejudicial effect. See Michigan v. Bryant, 562
6 U.S. 344, 370 n.13, 378 (2011); cf. Mendez, 2010-NMSC-044, ¶ 28 (“The hearsay
7 rule and the Confrontation Clause are not co-extensive and must remain distinct.”);
8 Giles v. California, 554 U.S. 353, 376 (2008) (distinguishing between Confrontation
9 Clause analysis and state law considerations).
10 A. Standard of Review
11 {23} “[W]hether out-of-court statements are admissible under the Confrontation
12 Clause is a question of law, subject to de novo review.” Largo, 2012-NMSC-015, ¶
13 9; State v. Lasner, 2000-NMSC-038, ¶ 24, 129 N.M. 806, 14 P.3d 1282.
14 B. The Confrontation Clause Under Crawford and Its Progeny
15 1. Crawford v. Washington
16 {24} The Confrontation Clause of the Sixth Amendment to the United States
17 Constitution, binding on the states through the Fourteenth Amendment, provides,
18 “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted
19 with the witnesses against him.” U.S. Const. amends. VI, XIV; Bryant, 562 U.S. at
13
1 352; Clark, 576 U.S. at 243. Under the Confrontation Clause standard announced in
2 Crawford, “‘witnesses’ . . . are those ‘who bear testimony,’ and [Crawford] defined
3 ‘testimony’ as ‘a solemn declaration or affirmation made for the purpose of
4 establishing or proving some fact.’” Clark, 576 U.S. at 243 (quoting Crawford, 541
5 U.S. at 51). “The Sixth Amendment . . . prohibits the introduction of testimonial
6 statements by a nontestifying witness, unless the witness is ‘unavailable to testify,
7 and the defendant had had a prior opportunity for cross-examination.’” Id. (quoting
8 Crawford, 541 U.S. at 54); accord Navarette, 2013-NMSC-003, ¶ 7. Under
9 Crawford and its progeny, “a statement cannot fall within the Confrontation Clause
10 unless its primary purpose was testimonial.” Clark, 576 U.S. at 245.
11 {25} Examining the historical background of the Confrontation Clause, the
12 Crawford Court identified “testimonial hearsay” as the “primary object” of the Sixth
13 Amendment, 541 U.S. at 53, and identified “ex parte examinations as evidence
14 against the accused” as “the principal evil at which the Confrontation Clause was
15 directed,” id. at 50. The Crawford Court “noted that in England, pretrial
16 examinations of suspects and witnesses by government officials ‘were sometimes
17 read in court in lieu of live testimony.’” Bryant, 562 U.S. at 353 (quoting Crawford,
18 541 U.S. at 43). Such pre-Constitutional ex parte examinations were conducted by
19 justices of the peace who “had an essentially investigative and prosecutorial
14
1 function.” Crawford, 541 U.S. at 53. Such “investigative functions [are] now
2 associated primarily with the police,” and today “[t]he involvement of government
3 officers in the production of testimonial evidence presents the same risk, whether
4 the officers are police or justices of the peace.” Id.5 {26} “Crawford did not offer an exhaustive definition of ‘testimonial’ statements
6 [but] . . . stated that the label ‘applies at a minimum to prior testimony at a
7 preliminary hearing, before a grand jury, or at a former trial; and to police
8 interrogations.’” Clark, 576 U.S. at 243-44 (quoting Crawford, 541 U.S. at 68).
9 “These are the modern practices with closest kinship to the abuses at which the
10 Confrontation Clause was directed.” Crawford, 541 U.S. at 68. Accordingly, the
11 statements in question in Crawford—made in the course of a station house police
12 interrogation—were ruled testimonial and thus inadmissible under the Confrontation
13 Clause. Id. at 61, 65, 68. “Statements taken by police officers in the course of
14 interrogations are also testimonial under even a narrow standard,” Crawford, 541
15 U.S. at 52, where such “interrogations [are] solely directed at establishing the facts
16 of a past crime, in order to identify (or provide evidence to convict) the perpetrator,”
17 Davis, 547 U.S. at 826 (stating that the Crawford Court “had [such interrogations]
18 immediately in mind (for that was the case before us)”).
15
1 2. Davis v. Washington and Hammon v. Indiana
2 {27} In Davis, the United States Supreme Court addressed two domestic violence
3 cases (Davis v. Washington, No. 05-5224 and Hammon v. Indiana, No. 05-5705) in
4 a single opinion. In doing so, the United States Supreme Court “took a further step
5 to ‘determine more precisely which police interrogations produce testimony’ and
6 therefore implicate a Confrontation Clause bar.” Bryant, 562 U.S. at 354 (quoting
7 Davis, 547 U.S. at 822). The Davis Court considered the testimonial nature of the
8 Davis declarant’s statements that specified the identity and continuing assaultive
9 actions of her former boyfriend to a 911 operator deemed an “agent[] of law
10 enforcement.” 547 U.S. at 817-18, 823 n.2. Concurrently, the Davis Court
11 considered the testimonial nature of the Hammon declarant’s statements that
12 specified her husband’s earlier-occurring violent actions to a police officer taking
13 notes while another officer required her husband to remain in a separate room. Id. at
14 819-20.
15 {28} Applying Crawford to these disparate factual circumstances, the Davis Court
16 announced what has become known as the “primary purpose” test:
17 Statements are nontestimonial when made in the course of police
18 interrogation under circumstances objectively indicating that the
19 primary purpose of the interrogation is to enable police assistance to
20 meet an ongoing emergency. They are testimonial when the
21 circumstances objectively indicate that there is no such ongoing
22 emergency, and that the primary purpose of the [police] interrogation
16
1 is to establish or prove past events potentially relevant to later criminal
2 prosecution.
3 Id. at 822 (emphasis added); 2 Clark, 576 U.S. at 244. The Davis Court made clear
4 that these primary purpose conclusions were a sufficient approach for both Davis
5 and Hammon “[w]ithout attempting to produce an exhaustive classification of all
6 conceivable statements—or even all conceivable statements in response to police
7 interrogation—as either testimonial or nontestimonial.” Davis, 547 U.S. at 822.
8 However, other than providing the key factors underlying the Davis and Hammon
9 holdings, the Davis Court did not further define the testimonial nature of statements
10 falling outside those cases’ factual circumstances.
11 {29} In Davis, the key factors rendering the statements to police nontestimonial,
12 and thus in harmony with the Confrontation Clause, included that the victim “was
13 speaking about events as they were actually happening, rather than describing past
14 events, that there was an ongoing emergency, that the elicited statements were
2
We note that some courts, including the district court in this case, quote the
second sentence of this Davis excerpt in isolation, without acknowledgement that
“Davis confined its discussion of interrogation to situations involving law
enforcement officers and their agents.” Romero, 2007-NMSC-013, ¶ 7; see Bryant,
562 U.S. at 354 (quoting Davis, 547 U.S. at 822). By recognizing that the holding in
Davis focused on police interrogation, however, we do not suggest that the principles
of testimonial analysis in Davis must be applied only to police interrogations. See
Davis, 547 U.S. at 822 (“[T]hese cases require us to determine more precisely which
police interrogations produce testimony.”).
17
1 necessary to be able to resolve the present emergency, and that the statements were
2 not formal.” Bryant, 562 U.S. at 356-57 (text only) (citation omitted).3 The Davis
3 Court noted that “a 911 call[] is ordinarily not designed primarily to ‘establis[h] or
4 prov[e]’ some past fact, but to describe current circumstances requiring police
5 assistance.” Davis, 547 U.S. at 827 (second and third alterations in original).
6 {30} In Hammon, the following were key factors rendering the statements to police
7 testimonial and thus in violation of the Confrontation Clause:
8 There was no emergency in progress. The officer questioning [the
9 declarant] was not seeking to determine what is happening, but rather
10 what happened. It was formal enough that the police interrogated [the
11 declarant] in a room separate from her husband where, some time after
12 the events described were over, she deliberately recounted, in response
13 to police questioning, how potentially criminal past events began and
14 progressed.
15 Bryant, 562 U.S. at 357 (ellipsis, internal quotation marks, and citation omitted).
16 {31} Davis contemplated that a police “interrogation to determine the need for
17 emergency assistance” could “evolve into testimonial statements once that purpose
18 has been achieved.” Davis, 547 U.S. at 828 (internal quotation marks and citation
19 omitted). The Davis Court recognized that “after the [911] operator gained the
3
The “text only” parenthetical used herein indicates the omission of any of the
following⸻internal quotation marks, ellipses, and brackets⸻that are present in the
text of the quoted source, leaving the quoted text itself otherwise unchanged.
18
1 information needed to address the exigency of the moment,” answers to the
2 operator’s subsequent questions may have become testimonial. Id. at 828-29. The
3 Court advised,
4 This presents no great problem. . . . [T]rial courts will recognize the
5 point at which, for Sixth Amendment purposes, statements in response
6 to interrogations become testimonial. Through in limine procedure,
7 they should redact or exclude the portions of any statement that have
8 become testimonial, as they do, for example, with unduly prejudicial
9 portions of otherwise admissible evidence.
10 Id. at 829; see Bryant, 562 U.S. at 365 n.10 (affirming Davis’s recognition of “the
11 evolutionary potential of a situation in . . . the Confrontation Clause context”).
12 3. Michigan v. Bryant
13 {32} In Bryant, five years after Davis, the United States Supreme Court further
14 expounded on the primary purpose test, directing that “when a court must determine
15 whether the Confrontation Clause bars the admission of a statement at trial, it should
16 determine the ‘primary purpose of the interrogation’ by objectively evaluating the
17 statements and actions of the parties to the encounter, in light of the circumstances
18 in which the interrogation occurs.” 562 U.S. at 370 (quoting Davis, 547 U.S. at 822).
19 Bryant specified that a court conducting this objective inquiry should “beg[i]n its
20 analysis with the circumstances in which” the parties interacted, id. at 362, then
21 conduct “a combined inquiry that accounts for [the statements and actions of] both
19
1 the declarant and the interrogator,” id. at 367.4 As we discuss below, the Bryant
2 Court applied these principles to the victim’s statements to police officers who
3 discovered him in a gas station parking lot mortally wounded by a gunshot. Id. at
4 370-78. Despite identifying and describing the shooter and the location of the
5 shooting, the statements of the declarant were held to be nontestimonial, and their
6 admission in the defendant’s trial, therefore, did not violate the Confrontation
7 Clause. Id. at 377-78.
8 {33} Noting that Davis did not define “‘ongoing emergency,’” id. at 363, the Bryant
9 Court analyzed that factor at length, id. at 359-78, as “among the most important
10 circumstances informing the ‘primary purpose’ of an interrogation” “between an
11 individual and the police,” id. at 361 (quoting Davis, 547 U.S. at 828-30) (citing
12 Crawford, 541 U.S. at 65). The Bryant Court stated that “[w]hen, as in Davis, the
13 primary purpose of an interrogation is to respond to an ongoing emergency, its
14 purpose is not to create a record for trial and thus is not within the scope of the
15 [Confrontation] Clause.” Id. at 358 (internal quotation marks omitted). “The
16 existence of an ongoing emergency . . . focuses the participants on something other
4
We note that the Bryant Court considered the responding officers’ subsequent
testimony in its objective inquiry. 562 U.S. at 372-73, 375, 377. Contrary to the
dissent’s suggestion, dissent ¶ 155, consideration of such testimony from the
participants does not render the inquiry subjective, as we discuss further below.
20
1 than ‘proving past events potentially relevant to later criminal prosecution.’ Rather,
2 it focuses them on ‘ending a threatening situation.’” Id. at 361 (brackets, footnote,
3 and citation omitted) (quoting Davis, 547 U.S. at 822, 832). 5
4 {34} In overturning the ruling of the Michigan Supreme Court that statements of
5 the declarant were testimonial, the Bryant Court stated that the Michigan Supreme
6 Court, under its misreading of Davis, “failed to appreciate that whether an
7 emergency exists and is ongoing is a highly context-dependent inquiry.” Id. at 363.
8 The Bryant Court cautioned against “employ[ing] an unduly narrow understanding
9 of ongoing emergency that Davis does not require.” Id. at 362 (internal quotation
10 marks omitted).
11 {35} The Bryant Court further cautioned that its
5
Regarding the importance of emergency to the testimonial inquiry, we note
that elsewhere Bryant equated “[t]he existence of an emergency” with “parties’
perception that an emergency is ongoing.” 562 U.S. at 370 (emphasis added). The
Court also stated,
The existence of an ongoing emergency must be objectively assessed
from the perspective of the parties to the interrogation at the time, not
with the benefit of hindsight. If the information the parties knew at the
time of the encounter would lead a reasonable person to believe that
there was an emergency, even if that belief was later proved incorrect,
that is sufficient for purposes of the Confrontation Clause. The
emergency is relevant to the primary purpose of the interrogation
because of the effect it has on the parties’ purpose, not because of its
actual existence.
Id. at 361 n.8 (emphasis added) (internal quotation marks omitted).
21
1 discussion of the Michigan Supreme Court’s misunderstanding . . .
2 should not be taken to imply that the existence vel non of an ongoing
3 emergency is dispositive of the testimonial inquiry. As Davis made
4 clear, whether an ongoing emergency exists is simply one factor . . .
5 that informs the ultimate inquiry regarding the primary purpose of an
6 interrogation.
7 Id. at 366 (internal quotation marks omitted). Additionally, the Court noted that
8 “there may be other circumstances, aside from ongoing emergencies, when a
9 statement is not procured with a primary purpose of creating an out-of-court
10 substitute for trial testimony.” Id. at 358. Moreover, in determining whether a
11 statement is testimonial, “standard rules of hearsay, designed to identify some
12 statements as reliable, will be relevant.” Id.
13 {36} In arriving at its testimonial ruling, the Bryant Court emphasized that the
14 primary purpose “inquiry is objective.” Id. at 360 (“Davis uses the word ‘objective’
15 or ‘objectively’ no fewer than eight times in describing the relevant inquiry.”). The
16 Court noted that the objective test applies even to determining the purposes of a
17 severely injured victim in making statements to police. Id. at 368-69. “The inquiry
18 is still objective because it focuses on the understanding and purpose of a reasonable
19 victim in the circumstances of the actual victim—circumstances that prominently
20 include the victim’s physical state.” Id. at 369. Under the circumstances in Bryant,
21 including the ongoing emergency and need for medical treatment, the Court could
22 not “say that a person in the [the victim’s] situation would have had a ‘primary
22
1 purpose’ ‘to establish or prove past events potentially relevant to later criminal
2 prosecution.’” Id. at 375 (quoting Davis, 547 U.S. at 822).
3 {37} In relation to its ongoing emergency analysis, Bryant also addressed the
4 relative “importance of informality in an encounter between a victim and police.” Id.5 at 366. The Court noted that “although formality suggests the absence of an
6 emergency and therefore an increased likelihood that the purpose of the interrogation
7 is” testimonial, “informality does not necessarily indicate the presence of an
8 emergency or the lack of testimonial intent.” Id. (citing Davis, 547 U.S. at 822, 826).
9 The informality of the parking lot police interrogation in Bryant, however, made that
10 case “distinguishable from the formal station-house interrogation in Crawford” and
11 weighed toward the Court’s nontestimonial ruling. Id. at 366.
12 {38} Under the foregoing analysis of the encounter’s circumstances, the Bryant
13 Court then conducted its inquiry into the statements and actions of the parties to the
14 encounter. Id. at 367-68. “Davis requires a combined inquiry that accounts for both
15 the declarant and the interrogator,” as “the contents of both the questions and the
16 answers” are relevant to ascertaining the primary purpose. Id. at 367-68. The Court
17 stated that such a “combined approach also ameliorates problems that could arise
18 from looking solely to one participant,” such as “the problem of mixed motives on
19 the part of both interrogators and declarants.” Id. at 368. Police officers’ “dual
23
1 responsibilities” “as both first responders and criminal investigators . . . may mean
2 that they act with different motives simultaneously or in quick succession.” Id.
3 Similarly, “[v]ictims are also likely to have mixed motives when they make
4 statements to the police . . . [or] may have no purpose at all in answering questions
5 posed.” Id. at 368-69. “[C]ourts making a primary purpose assessment should not be
6 unjustifiably restrained from consulting all relevant information, including the
7 statements and actions of interrogators.” Id. at 369-70.
8 {39} Under this combined approach, the statements and actions of the gunshot
9 victim and the law enforcement officers in Bryant supported the conclusion that “the
10 primary purpose of the interrogation was to enable police assistance to meet an
11 ongoing emergency.” Id. at 378 (internal quotation marks and citation omitted). The
12 injured declarant “was obviously in considerable pain and had difficulty breathing
13 and talking” but answered police questions and asked when medical services would
14 arrive. Id. at 375. “The questions [police] asked—what had happened, who had shot
15 him, and where the shooting had occurred—were the exact type of questions
16 necessary to allow the police to assess the situation, the threat to their own safety,
17 and possible danger to the potential victim.” Id. at 376 (internal quotation marks and
18 citations omitted). “In other words, they solicited the information necessary to
19 enable them ‘to meet an ongoing emergency.’” Id. (quoting Davis, 547 U.S. at 822).
24
1 Weighing the “circumstances of the encounter,” the Bryant Court held the
2 challenged statements to law enforcement to be nontestimonial. Id. at 377-78.
3 4. Ohio v. Clark
4 {40} The United States Supreme Court applied and refined the primary purpose test
5 next in Clark, four years after Bryant. In Clark, a three-year-old victim’s statements
6 to his preschool teachers that identified the child’s adult assailant were ruled
7 nontestimonial under the primary purpose test. 576 U.S. at 240. Because of the
8 interrogators’ identity as teachers, the Clark Court addressed for the first time a
9 question the United States Supreme Court had “repeatedly reserved: whether
10 statements to persons other than law enforcement officers are subject to the
11 Confrontation Clause.” Id. at 246; cf. Davis, 547 U.S. at 823 n.2 (considering 911
12 operators’ interrogations of 911 callers as “acts of the police”); Bryant, 562 U.S. at
13 357 n.3 (same). The Court “decline[d] to adopt a categorical rule excluding [such
14 statements] from the Sixth Amendment’s reach” but stated that “such statements are
15 much less likely to be testimonial than statements to law enforcement officers.”
16 Clark, 576 U.S. at 246. “In the end, the question is whether, in light of all the
17 circumstances, viewed objectively, the ‘primary purpose’ of the conversation was to
18 ‘create an out-of-court substitute for trial testimony.’” Id. at 245 (brackets omitted)
19 (quoting Bryant, 562 U.S. at 358).
25
1 {41} Following Bryant, the Clark Court objectively evaluated the surrounding
2 circumstances of the encounter and the statements and actions of the parties. Id. at
3 246-49; see Bryant, 562 U.S. at 359. Based on the victim’s visible injuries, “the
4 teachers needed to know whether it was safe to release [the child] to his guardian at
5 the end of the day, [and thus] they needed to determine who might be abusing the
6 child.” Clark, 576 U.S. at 246. The Court noted, “As in Bryant, the emergency in
7 this case was ongoing, and the circumstances were not entirely clear. [The] teachers
8 were not sure who had abused him[,] . . . how best to secure his safety[, and] . . .
9 whether any other children might be at risk.” Id. at 247. The Court determined that
10 the teachers’ questions and the victim’s answers “were primarily aimed at
11 identifying and ending the threat.” Id. Additionally, the Court noted that the
12 conversation between the parties “was informal and spontaneous . . . in the informal
13 setting of a preschool lunchroom and classroom, and [thus] . . . nothing like the
14 formalized station-house questioning in Crawford or the police interrogation and
15 battery affidavit in Hammon.” Id.
16 {42} Concluding its testimonial analysis, the Clark Court reiterated that the
17 questioners being “individuals who are not law enforcement officers . . . remains
18 highly relevant” to Sixth Amendment analysis. Id. at 249. Citing Bryant, 562 U.S.
19 at 369, the Court noted a “questioner’s identity” as part of the context in which
26
1 statements must be evaluated when challenged under the Confrontation Clause.
2 Clark, 576 U.S. at 249. “Statements made to someone who is not principally charged
3 with uncovering and prosecuting criminal behavior are significantly less likely to be
4 testimonial than statements given to law enforcement officers.” Id. (“It is common
5 sense that the relationship between a student and his teacher is very different from
6 that between a citizen and the police. We do not ignore that reality.”) (citing Giles,
7 554 U.S. at 376 (classifying “[s]tatements to friends and neighbors about abuse and
8 intimidation and statements to physicians in the course of receiving treatment” as
9 nontestimonial)).
10 C. Testimonial Inquiry into Statements Made in the Course of a SANE
11 Exam
12 {43} Because the identity of the questioner is a relevant surrounding circumstance
13 under Bryant, we next discuss the testimonial relevance of the identity of a SANE
14 nurse as questioner and the testimonial context of a SANE exam. See 562 U.S. at
15 368-70 (noting that the identity of the interrogator “can illuminate” a primary-
16 purpose assessment). Because the United States Supreme Court has not applied
17 testimonial inquiry to statements made in the course of a SANE exam—see State v.
18 Burke, 478 P.3d 1096, 1102 (Wash. 2021) (holding under the circumstances of a
19 SANE “exam with both medical and forensic purposes” that “the primary purpose
20 of nearly all of the statements [made in the course of the SANE exam] was to guide
27
1 the provision of medical care, not to create an out-of-court substitute for trial
2 testimony”), cert. denied, Burke .v. Washington, 142 S. Ct. 182 (2021)—we analyze
3 the testimonial relevance of the identity of a SANE nurse as questioner under New
4 Mexico caselaw.
5 1. The dual role of a SANE nurse and its testimonial implications
6 {44} We note at the outset that the complexity of testimonial analysis is further
7 complicated by the “dual role” of a SANE nurse, which we have recognized in the
8 hearsay context.6 See Mendez, 2010-NMSC-044, ¶¶ 42, 46 n.5. This dual role
6
We cite Mendez, a hearsay case, for its reasoning where relevant, while
mindful of its admonition not to conflate “[t]he hearsay rule and the Confrontation
Clause [as they] are not co-extensive and must remain distinct.” 2010-NMSC-044,
¶ 28. The Court of Appeals was correct to recognize “the importance of separating
these analyses in cases where both rules are implicated by the nature or source of the
evidentiary material.” Tsosie, A-1-CA-37791, mem. op. ¶ 7.
We disagree with the dissent’s contention that this opinion conflates
confrontation and hearsay analysis notwithstanding our statements otherwise. See
dissent ¶¶ 164-65. To be sure, a statement may be admissible under both analyses
where a statement in response to a question from a SANE nurse in her medical care
role contains medically relevant information. Nonetheless, the two analyses are
distinct even if the results coincide. “The touchstone of admissibility under Rule 11-
803([4]) [NMRA] is the trustworthiness of each statement.” Mendez, 2010-NMSC-
044, ¶ 19 (heading). Admissibility under the Confrontation Clause, in contrast,
requires that a statement’s primary “purpose is not to create a record for trial,”
regardless of the statement’s degree of trustworthiness. Bryant, 562 U.S. at 358; cf.
Crawford, 541 U.S. at 51.
In applying Rule 11-803(4), trustworthiness sufficient for admissibility is
predicated on the content of the statement, without regard to the primary purpose of
the encounter. Mendez, 2010-NMSC-044, ¶¶ 29-31 (“Surrounding circumstances are
certainly relevant, but the focus must center on the individual statement”: “under
28
1 consists of “the provision of medical care and the collection and preservation of
2 evidence.” Id. ¶ 42. On the one hand, the medical care role includes a SANE nurse’s
3 professional “‘role as a nurse, in a [medical care setting], performing a medical
4 examination of a victim of a sexual assault.’” Id. ¶ 45 (quoting United States v.
5 Gonzalez, 533 F.3d 1057, 1062 (9th Cir. 2008)). A SANE nurse under this medical
6 care role retains their medical care role as a nurse generally, cf. id. (“SANE nurses
7 regularly treat victims of sexual abuse that require critical medical attention.”);
8 accordingly, a SANE nurse’s identity under this medical care role weighs toward a
9 nontestimonial ruling, see Giles, 554 U.S. at 376 (classifying “statements to
10 physicians in the course of receiving treatment” as nontestimonial). On the other
11 hand, the SANE nurse’s forensic role in “collecting and preserving evidence of value
12 to the legal system,” “[w]hen compared with [the roles of] other medical providers,
13 . . . can [thus] seem more closely aligned with law enforcement,” Mendez, 2010-
14 NMSC-044, ¶ 42 (internal quotation marks and citation omitted), and accordingly a
Rule 11-803([4]), a declarant could make a statement for entirely medical purposes
even if the primary purpose of the interview has become forensic. The converse is
also true.”). In applying confrontation analysis, however, admissibility is more
contextual. Bryant, 562 U.S. at 360 (“An objective analysis of the circumstances of
an encounter and the statements and actions of the parties to it provides the most
accurate assessment.”). Stated differently, application of Rule 11-803(4) focuses
primarily on “close[] examin[ation of] the substance of the statement,” whereas
under testimonial inquiry the content of the statement is only part of the analysis.
Mendez, 2010-NMSC-044, ¶¶ 29-31.
29
1 SANE nurse’s identity under this forensic role weighs toward a testimonial ruling.
2 See Clark, 576 U.S. at 249. As we have recognized, “SANE nurses . . . provid[e]
3 critical treatment to patients at a time of great physical, emotional, and psychological
4 vulnerability . . . [b]ut they also have special expertise in gathering evidence for
5 subsequent prosecution of the offender, which raises appropriate concerns about
6 whether the statement was made for the purposes of seeking medical care.” Mendez,
7 2010-NMSC-044, ¶ 41.
8 {45} Since Bryant, our discussion in Mendez of a SANE nurse’s dual role has been
9 cited favorably by other jurisdictions. E.g., State v. Miller, 264 P.3d 461, 487 (Kan.
10 2011) (applying the reasoning of Mendez to confrontation analysis where a SANE
11 nurse’s medical and forensic purposes “[o]ften . . . will require examination of
12 individual questions and responses”). A SANE nurse’s dual role has been otherwise
13 recognized by additional courts in the confrontation context. E.g., Thompson v.
14 State, 2019 OK CR 3, ¶ 11, 438 P.3d 373 (“SANE nurses perform both a medical
15 and investigatory function in almost every interaction with an alleged sexual assault
16 victim.”).
17 {46} In the confrontation context, New Mexico courts have implicitly recognized
18 the dual role of a SANE nurse in two pre-Bryant cases, the precedential value of
19 which we discuss below. Romero, 2007-NMSC-013, and State v. Ortega, 2008-
30
1 NMCA-001, 143 N.M. 261, 175 P.3d 929, overruled on other grounds by Mendez,
2 2010-NMSC-044, ¶ 1. The courts in both Romero and Ortega reached testimonial
3 rulings based upon distinct forensic facts while in the process impliedly recognizing
4 that the roles of a SANE nurse typically include both medical care and forensic
5 purposes. See Romero, 2007-NMSC-013, ¶¶ 12-18; Ortega, 2008-NMCA-001, ¶¶
6 19, 26, 32-33.
7 {47} In Romero, this Court affirmed the Court of Appeals’ exclusion under the
8 Confrontation Clause of narrative statements made by the victim when “asked to tell
9 the SANE nurse what happened, so the SANE nurse would know how to proceed.”
10 2007-NMSC-013, ¶¶ 16, 17. Prominent to the Court’s testimonial ruling, the SANE
11 exam in question “occurred several weeks after the assault” and with significant
12 “assistance and encouragement” from law enforcement. Id. ¶ 17. We recognized
13 there that the “victim’s narrative” included portions that both “accuse[d the
14 d]efendant of specific criminal acts” and were “relevant to medical treatment” or
15 “could be viewed as relevant to seeking medical treatment.” Id. ¶ 15. Impliedly, the
16 challenged statements elicited by the SANE nurse potentially served both a forensic
17 purpose and a medical care purpose. See id. ¶¶ 15, 17. Based on “[t]he [forensic]
18 facts in th[e] record” regarding the elapsed time and the role of law enforcement, we
19 rejected the state’s argument that the primary purpose of the victim’s statements was
31
1 for the purposes of medical treatment. Id. ¶¶ 13, 17. Our recognition, despite those
2 forensic facts that the challenged statements held potential medical relevance,
3 impliedly points to “an examination by a SANE nurse” typically including a medical
4 care purpose. See id. ¶¶ 14-15, 17.
5 {48} Our implicit recognition in Romero of the SANE nurse’s medical care role is
6 bolstered by three other points. First, we recognized there that “Davis confined its
7 discussion of interrogation to situations involving law enforcement officers and their
8 agents” and did not consider “‘when statements made to someone other than law
9 enforcement personnel are testimonial.’” Romero, 2007 NMSC-013, ¶ 7 (quoting
10 Davis, 547 U.S. at 823 n.2). This recognition would have been immaterial had the
11 Romero Court viewed a SANE nurse’s identity as simply forensic or as an agent of
12 law enforcement. Second, we recognized there that a SANE exam does not resemble
13 the police interrogations envisioned by Crawford, as it “is not typically ‘designed
14 primarily to establish or prove some past fact, but to describe current circumstances
15 requiring [medical] assistance.’” Romero, 2007 NMSC-013, ¶ 14 (quoting Davis,
16 547 U.S. at 827). Third, we agreed in Romero with the state that nontestimonial
17 portions of the narrative could have survived redaction had the state advanced a
18 proper basis for redaction of the testimonial portions. Id. ¶ 18; see also Ortega, 2008-
32
1 NMCA-001, ¶ 23 (citing the Romero Court’s “suggestion that medical portions
2 might be separated from testimonial portions in the victim’s narration”).
3 {49} In Ortega, our Court of Appeals affirmed the district court’s exclusion under
4 the Confrontation Clause of statements transcribed in a SANE exam where the
5 victim “was not provided medical treatment.” Id. ¶ 5. Analogizing the forensic facts
6 there to those in Romero, the Ortega Court described the SANE exam there as
7 “nothing more than a description of the sexual abuse [the victim] suffered, with no
8 medical purpose behind it.” 2008-NMCA-001, ¶ 12. Additionally, the Ortega Court
9 appears to have reached a legal conclusion that a SANE exam is “[c]learly . . . geared
10 for” and “exists in concert with” forensic purposes. See id. ¶ 21. However, Ortega’s
11 discussion in support of that conclusion nonetheless identified several aspects of a
12 SANE nurse’s medical care role: (1) “first assess the victim’s need for emergency
13 medical care and ensure that serious injuries are treated,” (2) possibly “treat medical
14 conditions requiring immediate attention for a victim’s safety,” (3) possibly provide
15 medications to the victim which are “prophylactic . . . for the prevention of sexually
16 transmitted diseases . . . and other care needed as a result of the crime,” and (4)
17 provide medical treatment “relative to the patient being a victim of a sexual crime.”
18 Id. (omissions in original) (internal quotation marks and citation omitted). The Court
19 also acknowledged that “cases [may] arise where identifying an offender or
33
1 searching for physical evidence of sexual victimization” is “secondary to an
2 overarching medical purpose in obtaining a victim’s statement.” Id. ¶ 34.
3 {50} We conclude that the foregoing supports our recognition in Mendez of a
4 SANE nurse’s dual role, and we adopt this standard to guide a district court’s
5 analysis of SANE nurse testimony where applicable.
6 2. The surrounding circumstance of a SANE nurse’s identity may shift
7 consistent with their dual role
8 {51} The foregoing establishes that either of the dual roles of a SANE nurse may
9 be present when eliciting an individual statement in the course of a typical SANE
10 exam. Further complicating testimonial analysis, which of the dual roles is more
11 present is likely to change multiple times over the course of a SANE exam, as a
12 typical SANE exam is not partitioned into one medical care component and one
13 forensic component. Under this reality, a court cannot indulge either testimonial or
14 nontestimonial presumptions based on the identity of a SANE nurse regarding the
15 primary purpose of statements made in the course of a SANE exam.
16 {52} Regardless of which role is more present in eliciting an individual statement,
17 the identity of a SANE nurse is merely one of the surrounding circumstances to be
18 weighed by a district court and thus is not dispositive of the testimonial nature of the
19 resulting statement. In mischaracterizing this opinion’s logic as “circular,” the
20 dissent conflates a SANE nurse’s questions with a declarant’s responses. See dissent
34
1 ¶ 163. We do not assert that “the statements Starr elicits [in her role] as a medical
2 caregiver” are necessarily nontestimonial. Id. (emphasis added). To the contrary, we
3 recognize that a responding statement may be testimonial notwithstanding the
4 nontestimonial character of the question eliciting that statement where a SANE nurse
5 is acting in their medical care role, as we discuss further below.
6 3. Under Davis, district courts must redact testimonial portions of otherwise
7 nontestimonial statements
8 {53} Notwithstanding such complications, Davis made clear that district courts
9 bear the responsibility to “recognize . . . point[s] at which, for Sixth Amendment
10 purposes, statements in response to interrogations” evolve or change in their
11 testimonial nature. Davis, 547 U.S. at 828-29; see also Bryant, 562 U.S. at 365-66.
12 {54} We note that Davis and Bryant envisioned a clear point of demarcation at
13 which the circumstance of law enforcement needing to resolve an emergency might
14 end, thereby signaling a distinct transition from nontestimonial statements to
15 testimonial statements. See Davis, 547 U.S. at 828-29; Bryant, 562 U.S. at 365-66.
16 While, in contrast, the circumstance of a SANE nurse’s identity pursuant to a dual
17 role may shift multiple times within a SANE exam, the burden of determining that
18 circumstance’s proper weight within primary purpose analysis nonetheless remains
19 with our district courts. See Davis, 547 U.S. at 828-29; see also Mendez, 2010-
20 NMSC-044, ¶ 46. We agree with the Supreme Court of Kansas, quoting Mendez,
35
1 2010-NMSC-044, ¶ 46, in the confrontation context, that “New Mexico [district]
2 courts must ‘shoulder the heavy responsibility of sifting through statements, piece-
3 by-piece, making individual decisions on each one.’” Miller, 264 P.3d at 487.
4 {55} We note also that, contrary to the dissent’s reading, dissent ¶ 154, nothing in
5 Davis supports the proposition that Sixth Amendment redaction by a district court is
6 only proper where an encounter begins with a clearly nontestimonial primary
7 purpose and then “evolves” into testimonial statements. See Davis, 547 U.S. at 828.
8 To the contrary, Davis’s direct analogy of Sixth Amendment redaction to a district
9 court’s well-established role in redacting unduly prejudicial evidence counsels that
10 such exercise may be proper regardless of whether the primary purpose of an
11 encounter has evolved or shifted. Id. at 829. The fact that no such shift occurred in
12 Hammon does not preclude the possibility that a nontestimonial purpose could arise
13 even in such an encounter involving law enforcement, much less an encounter not
14 involving law enforcement. Cf. Clark, 576 U.S. at 246.
15 {56} Concurrent with the foregoing responsibilities, a district court must also be
16 vigilant that a SANE nurse’s dual role is not used by the prosecution to end-run the
17 Confrontation Clause by introducing SANE exam statements made for a testimonial
18 primary purpose under the guise of having been made for a medical care primary
19 purpose. This concern is heightened in cases where, as here, the SANE nurse is
36
1 admitted as an expert witness and so could be “used as little more than a conduit or
2 transmitter for testimonial hearsay, rather than as a true expert whose considered
3 opinion sheds light on some specialized factual situation.” United States v. Gomez,
4 725 F.3d 1121, 1129 (9th Cir. 2013) (describing other circuits’ confrontation
5 concerns regarding a testifying expert witness).
6 {57} District courts must be mindful of their role in preventing such potential
7 abuses. A district court “has the prerogative to insist that all facts be presented that
8 will insure a fair trial.” State v. Crump, 1981-NMSC-134, ¶ 12, 97 N.M. 177, 637
9 P.2d 1232. If facts necessary for the testimonial inquiry are not elicited by direct
10 examination or cross-examination during the admissibility hearing, “[t]he court may
11 examine a witness” to complete the record. See Rule 11-614(B) NMRA; State v.
12 Paiz, 1999-NMCA-104, ¶ 17, 127 N.M. 776, 987 P.2d 1163. Such material facts
13 may include circumstances surrounding the SANE exam or underlying purposes of
14 individual questions that elicited challenged statements.
15 {58} In addition, as discussed above, Bryant directs that “standard rules of hearsay,
16 designed to identify some statements as reliable, will be relevant.” 562 U.S. at 358.
17 It follows from this direction that a district court should be alert to considerations of
18 a SANE nurse’s testimony that raise credibility concerns, especially where such
19 testimony is uncontradicted and is the sole evidence regarding the testimonial nature
37
1 of an unavailable declarant’s statements. Accordingly, we hold that a district court
2 must articulate any credibility concerns regarding a SANE nurse’s uncontradicted
3 testimony where the district court determines that testimony regarding the SANE
4 nurse’s medical care role is pretextual in masking a forensic primary purpose. See
5 Medler v. Henry, 1940-NMSC-028, ¶ 20, 44 N.M. 275, 101 P.2d 398 (rejecting
6 uncontradicted testimony as allowable only under certain circumstances).
7 4. The precedential value of Romero and Ortega
8 {59} The State argues that the instant case is one of first impression, asserting that
9 “there is no prior controlling New Mexico authority.” The State argues that Romero,
10 2007-NMSC-013, and Ortega, 2008-NMCA-001, are distinguishable on their facts
11 and that therefore the testimonial rulings in those cases do not direct the result here.
12 The State specifically points to the SANE exam in this case “occur[ring] on the same
13 night as the assault” and including medical treatment whereas, in Romero, “several
14 weeks” elapsed between the assault and the SANE exam while, in Ortega, the SANE
15 exam occurred four days after the initial physical examination and included no
16 medical treatment. See 2007-NMSC-013, ¶ 17; 2008-NMCA-001, ¶¶ 4-5. In both
17 prior cases, the State argues, “‘any necessity for medical treatment as a result of the
18 abuse had ended’ by the time the [SANE] examination took place” (quoting Ortega,
19 2008-NMCA-001, ¶ 35), in contrast to the instant case.
38
1 {60} Defendant, while conceding some factual distinction, argues that Romero and
2 Ortega nonetheless “provide the controlling legal analysis” by “apply[ing] the
3 primary purpose test to statements made to a SANE nurse.” Defendant argues that
4 factual distinctions “do[] not prevent a court from reasonably and judiciously
5 applying established legal principles.” Defendant argues that the “more immediate”
6 timing in this case “does not establish an overriding medical purpose,” as “[i]t
7 equally reflects a desire for prompt evidence gathering to avoid the spoliation of
8 physical evidence and ensure an accurate memory of events.” Defendant suggests
9 that Declarant’s statements here “‘accus[ing] [D]efendant of specific criminal acts’”
10 (quoting Romero, 2007-NMSC-013, ¶ 15), “are functionally indistinguishable from
11 those in Romero.”
12 {61} We hold that Romero is precedential for the instant case. We read Romero to
13 abide with Bryant in “objectively evaluating the statements and actions of the parties
14 to the encounter, in light of the circumstances in which the interrogation occur[red].”
15 562 U.S. at 370.
16 {62} In Romero, we applied Crawford and Davis to determine the testimonial
17 nature of two narrative statements made in the course of the assault victim’s SANE
18 exam. 2007-NMSC-013, ¶¶ 1, 12. The facts central to our testimonial ruling on those
19 statements included that (1) approximately three weeks elapsed between the assault
39
1 and the SANE exam and (2) the SANE exam “occurred . . . with the assistance and
2 encouragement” of law enforcement. Romero, 2007-NMSC-013, ¶¶ 2, 17 (“The
3 facts underlying this appeal are stated clearly and thoroughly in the Court of
4 Appeals’ Opinion. We do not restate them.” (citation omitted)); State v. Romero,
5 2006-NMCA-045, ¶¶ 53, 56, 139 N.M. 386, 133 P.3d 842.
6 {63} The statements in question were included within a larger narrative statement
7 to the SANE nurse that “recounted the entire incident.” Romero, 2006-NMCA-045,
8 ¶ 59. We concluded that under the circumstances of the time elapsed between the
9 assault and the SANE exam and of the degree of involvement of the law enforcement
10 officer, “the portions of the victim’s narrative specifically accusing Defendant of
11 sexual assault and other charges should have been excluded.” Romero, 2007-NMSC-
12 013, ¶ 17. We further analogized the testimonial facts there as closer to the “after-
13 the-fact inquiry” in Hammon than the “ongoing emergency” in Davis. Id. As
14 previously discussed, “[w]e agree[d] with the [s]tate that redaction of [testimonial]
15 portions of the narrative might have been appropriate” had the state “identified
16 portions of the narrative that might have been likely candidates for redaction.” Id. ¶
17 18. In the absence of such a basis for specific redaction, however, we affirmed the
18 Court of Appeals’ exclusion of the entire narrative. Id.40
1 {64} For these reasons, we conclude that Romero, 2007-NMSC-013, is
2 precedential in applying the primary purpose test of Davis to statements made in the
3 course of a SANE exam and in providing guidance for redaction of testimonial
4 portions of such statements. Because of our conclusion, the instant case is not a
5 matter of first impression, and thus we need not further address the precedential
6 nature of Ortega. Accordingly, we also need not further consider the State’s
7 arguments regarding the persuasive value of other jurisdictions’ cases concerning
8 the issues before us.7
9 5. SANE exam statements do not require emergency or informality to be
10 nontestimonial
11 {65} Crawford’s progeny have focused on the existence of an ongoing emergency
12 as an important contextual circumstance that “focuses the participants on something
13 other than ‘proving past events potentially relevant to later criminal prosecution.’”
14 Bryant, 562 U.S. at 361 (brackets omitted) (quoting Davis, 547 U.S. at 822); see also
15 Davis, 547 U.S. at 826-28; Bryant, 562 U.S. at 361-66; Clark, 576 U.S. at 246-47.
16 As discussed above, Bryant recognized that “there may be other circumstances,
17 aside from ongoing emergencies, when a statement is not procured with a primary
We nevertheless recognize the weight of persuasive post-Romero authorities
7
that have held statements made in the course of a SANE exam to be nontestimonial.
E.g. Burke, 478 P.3d at 1102; United States v. Barker, 820 F.3d 167, 169-70, 172
(5th Cir. 2016); Miller, 264 P.3d at 490.
41
1 purpose of creating an out-of-court substitute for trial testimony.” 562 U.S. at 358.
2 We hold that where it centers on the provision of medical care, a SANE exam
3 similarly “focuses the participants on something other than ‘proving past events
4 potentially relevant to later criminal prosecution.’” See id. at 361 (brackets omitted)
5 (quoting Davis, 547 U.S. at 822).8
6 {66} We apply Davis, Bryant, and Clark in support of our conclusion. In each of
7 those cases, nontestimonial statements given during an ongoing emergency included
8 identification of defendants and accusations regarding specific criminal acts. Davis,
9 547 U.S. at 817-18, 822; Bryant, 562 U.S. at 349, 377-78; Clark, 576 U.S. at 241,
10 249. Clearly, then, the testimonial inquiry cannot turn simply on the content of the
11 statements as relating to identification or accusations of criminal acts. Instead, these
12 cases represent that the focus or motive of the participants is a relevant factor in
13 determining whether the primary purpose of challenged statements was to “creat[e]
14 an out-of-court substitute for trial testimony.” Bryant, 562 U.S. at 358.
The State’s central argument for the challenged statements being
8
nontestimonial is that “the primary purpose of [Starr’s] examination was medical.”
Under this argument, we need not and do not address whether the unresolved
medical issues facing a SANE examinee also constitute an ongoing emergency under
Davis and Bryant.
42
1 {67} In the process of clarifying Davis, the Bryant Court recognized that a law
2 enforcement officer’s first responder responsibility correlates to the nontestimonial
3 motive of responding to or resolving an emergency situation. Cf. 562 U.S. at 368.
4 The Bryant Court also recognized that nontestimonial motives are likely to be
5 present in victims in an emergency situation. Id. at 368-69.
6 {68} The Bryant Court’s recognition that an ongoing emergency can provide a
7 nontestimonial focus for participants abides with Davis’s explanation of differences
8 between the nontestimonial 911 call there and the testimonial station house
9 interrogation in Crawford. See Davis, 547 U.S. at 827. The Davis participants’
10 nontestimonial focus was bolstered by the informality of the situation, indicated by
11 the victim’s “frantic answers . . . in an environment that was not tranquil, or even
12 safe.” Id.; see Bryant, 562 U.S. at 366. These factors presumably contributed to the
13 participants being focused on the emergency situation rather than on creating an out-
14 of-court substitute for trial testimony.
15 {69} Our conclusion regarding the possible nontestimonial focus of a SANE exam
16 also abides with the proposition consistently supported by the United States Supreme
17 Court in dicta, as noted by the Washington Supreme Court, “that statements made
18 to medical providers for the purpose of obtaining treatment have a primary purpose
19 that does not involve future prosecution and that such statements are therefore
43
1 nontestimonial.” State v. Scanlan, 445 P.3d 960, 967 (2019) (citing Giles, 554 U.S.
2 at 376; Melendez-Diaz v. Massachusetts, 557 U.S. 305, 312 n.2 (2009); Bullcoming
3 v. New Mexico, 564 U.S. 647, 672 (2011) (Sotomayor, J., concurring in part)). It
4 follows from this proposition that an encounter directed at the provision of medical
5 care can focus the participants on something other than proving past events
6 potentially relevant to later criminal prosecution. However, it does not follow that
7 the factors necessary for participants’ nontestimonial focus on medical care are the
8 same as the factors necessary for participants’ nontestimonial focus on emergency.
9 Applying the reasoning in Davis, we hold that a significant factor for the former is
10 whether the information sought was important to enable the provision of medical
11 care. See Davis, 547 U.S. at 827. Where the objective circumstances demonstrate
12 the information sought was indeed important in that regard, the focus of the
13 participants is likely to have been on something other than creating an out-of-court
14 substitute for trial testimony. We also recognize that, whereas formality in a law
15 enforcement encounter may suggest a testimonial purpose, Bryant, 562 U.S. at 366,
16 formality in a medical care encounter may enable the provision of medical care.
17 {70} We recognize that Clark applied emergency and formality analysis to
18 statements made to individuals who were not law enforcement officers. See 576 U.S.
19 at 246-47. Such analysis was clearly warranted there, given the circumstances under
44
1 which the victim’s statements were made to his preschool teachers. However, Clark
2 does not establish that those factors are dispositive, nor that they are required
3 elements for a nontestimonial finding. Clark affirmed without reference to
4 emergency or formality that “[s]tatements made to someone who is not principally
5 charged with uncovering and prosecuting criminal behavior are significantly less
6 likely to be testimonial than statements given to law enforcement officers.” Id. at
7 249; see United States v. Barker, 820 F.3d 167, 172 (5th Cir. 2016) (“A nurse, unlike
8 a police officer, is principally tasked with providing medical care, not ‘uncovering
9 and prosecuting criminal behavior.’” (quoting Clark, 576 U.S. at 249)). We agree
10 with our Court of Appeals in the instant case that a SANE nurse, like the teachers in
11 Clark, “is ‘not principally charged with uncovering and prosecuting criminal
12 behavior.’” Tsosie, A-1-CA-37791, mem. op. ¶ 15 (quoting Clark, 576 U.S. at 249).
13 {71} Our holding abides with our recognition in Romero that a SANE exam, while
14 not necessarily analogous to a 911 call, similarly “is not typically ‘designed
15 primarily to establish or prove some past fact, but to describe current circumstances
16 requiring . . . assistance.’” 2007-NMSC-013, ¶ 14 (quoting Davis, 547 U.S. at 827).
17 This recognition suggests the potential of a typical SANE exam to include
18 participants’ nontestimonial focus on the provision of medical care. As we have
19 discussed, the Romero Court made this distinction while also recognizing that
45
1 “Davis confined its discussion of interrogation to situations involving law
2 enforcement officers and their agents.” Romero, 2007-NMSC-013, ¶ 7. Because the
3 testimonial facts in Romero cast doubt on whether medical care was actually
4 provided in the SANE exam, the testimonial ruling in Romero does not conflict with
5 our holding here.
6 {72} In sum, we conclude that a declarant’s statements to someone other than law
7 enforcement do not require circumstances of ongoing emergency or informality to
8 be nontestimonial if creating a record for future prosecution is not the primary
9 purpose of the interaction. Cf. Burke, 478 P.3d at 1111 (“[W]hen declarants speak
10 to someone other than law enforcement, there may be a multitude of purposes for
11 the statements.”).
12 D. Application
13 {73} We next apply the foregoing to the facts of the instant case. In the course of
14 our application, we address the parties’ remaining arguments and the approaches of
15 the courts below. Objectively viewing the statements and actions of Declarant and
16 Starr in light of the surrounding circumstances of the SANE exam, we hold as
17 nontestimonial almost all of the challenged statements. On remand, those
18 nontestimonial statements must still survive state and federal evidentiary
19 considerations in order to be admissible at Defendant’s trial.
46
1 {74} In its remaining argument, the State contends that the district court and the
2 Court of Appeals improperly disregarded Starr’s uncontradicted testimony regarding
3 the SANE exam. The State contends that “[w]hen a court makes no finding that any
4 part of a witness’[s] testimony is incredible and there is no other evidence, but then
5 disregards that testimony, its decision is not supported by substantial evidence.”
6 Defendant contends that the courts below properly considered Starr’s testimony.
7 {75} As required by Bryant, we begin our “highly context-dependent inquiry” with
8 objective analysis of the circumstances in which the parties interacted, then conduct
9 an objective and combined inquiry into the parties’ statements and actions. See 562
10 U.S. at 363, 370. The relevant surrounding circumstances here include the time
11 elapsed between the alleged assault and the SANE exam, the location of the SANE
12 exam, the role of law enforcement in the SANE exam, and the identity of the SANE
13 nurse as Starr’s dual role bears on the challenged statements.
14 1. The circumstance of the time elapsed between the alleged assault and the
15 SANE exam
16 {76} In this case, the close proximity in time of the SANE exam to the alleged
17 predicate assault weighs toward a nontestimonial primary purpose. As we have
18 discussed, the separation of the exam and assault events by several weeks in Romero
19 and by several days in Ortega weighed significantly toward the testimonial rulings
20 in those cases: the time elapsed suggested that any necessity for medical treatment
47
1 pursuant to the assault had ended by the time of the SANE examination. See 2007-
2 NMSC-013, ¶ 17; 2008-NMCA-001, ¶¶ 4-5. In contrast, the SANE exam here, on
3 referral from UNMH, occurred in the same night as the alleged assault, thereby
4 supporting the relevance of the exam to the provision of medical care. Starr testified
5 that she assessed multiple considerations of Declarant’s medical situation—
6 including prophylaxis, safety plan, suicide assessment, and homicide assessment—
7 that objectively suggest the relevance of recency of the assault to the medical
8 purposes of the SANE exam.
9 {77} We agree with Defendant that the “more immediate” timing here compared to
10 that in Romero is not dispositive of “an overriding medical purpose,” as forensic
11 goals are also served by gathering evidence promptly. Nonetheless, we conclude that
12 the evidence regarding this timing circumstance supports the primary purpose of the
13 SANE exam being nontestimonial.
14 2. The circumstance of the location of the SANE exam
15 {78} The location of the SANE exam also weighs toward a nontestimonial primary
16 purpose, as the clinic at the Family Advocacy Center is a setting conducive to
17 providing trauma-informed medical treatment. Starr testified that SANE exams can
18 be done in a hospital setting but that the clinic setting is “absolutely” better in
19 allowing the examinee to “be really relaxed and comfortable” for the exam. While
48
1 we agree with the district court’s finding that “[t]he examination occurred in a
2 structured setting,” we recognize the medical care purposes that are served by the
3 deliberate conditions of the clinical setting. As we have discussed, informality is not
4 a requirement for a medical care purpose to weigh toward statements being
5 nontestimonial.
6 {79} The district court and the Court of Appeals noted Starr’s testimony that the
7 clinic “is located in the same building” as law enforcement “but in a separate area.”
8 Without more, however, we conclude that law enforcement’s presence within a
9 separate area of the same building does not dissipate the medical care relevance of
10 the clinic location as a circumstance weighing toward the primary purpose of the
11 SANE exam being nontestimonial.
12 3. The circumstance of law enforcement involvement in the SANE exam
13 {80} Relatedly, the degree of involvement of law enforcement in the SANE exam
14 here does not weigh toward a testimonial primary purpose. While it is noteworthy
15 that Declarant was transported to the clinic by law enforcement, the record does not
16 demonstrate significant further involvement to support Defendant’s claim that “the
17 statement was the product of an investigation by the authorities” “[involving]
18 government officers” or that the “SANE interview [was] taken at police
49
1 instigation.”9 Relevant to our analysis, Starr testified that law enforcement officers
2 are not allowed in the SANE exam, that APD detectives are housed in a different
3 area of the building, that SANE nurses “do not work for the police,” and that the
4 Family Advocacy Center is a “nonprofit and . . . separate” from the police. See
5 Mendez, 2010-NMSC-044, ¶ 37 (stating in the hearsay context that “[a]bsent some
6 evidence that the police were attempting to manipulate the [SANE] examination, we
7 would not place dispositive weight on their presence on the premises or even in the
8 examination room”).
9 {81} Also unpersuasive is Defendant’s argument that law enforcement
10 involvement is established by Declarant “having filed a police report and [having]
11 authorized the release of evidence . . . to the police.” Nothing in Crawford or its
12 progeny supports the proposition that filing a police report can be viewed as a fact
13 transforming the actions taken by a purported victim of sexual assault into
14 testimonial actions. While consenting to the release of evidence to law enforcement
15 is noteworthy, Starr testified that she conducts the SANE exam regardless of whether
9
We note that here Defendant’s citations of Crawford, 541 U.S. at 56 n.7, and
Lilly v. Virginia, 527 U.S. 116, 137 (1999) (plurality opinion) are inapposite. Both
cases specifically considered police interrogations. In addition, as a pre-Crawford
case, Lilly, 527 U.S. at 135, applied the indicia of reliability standard for
confrontation under Ohio v. Roberts, 448 U.S. 56 (1980), which Crawford
overturned.
50
1 a patient wants to report to police. In addition, the release in question was one of two
2 sections signed by Declarant in the SANE exam consent form, the other of which
3 included his consent to multiple medical care and forensic components of the exam.
4 Under Bryant’s objective test, the question for this circumstance is whether a
5 reasonable declarant signing the two portions of the consent form would have
6 understood that law enforcement was so involved in the SANE exam as to render
7 the primary purpose of his statements to be the creation of evidence for Defendant’s
8 prosecution. See Clark, 576 U.S. at 245-46. Given the mixed nature of the matters
9 consented to by Declarant therein, we disagree with Defendant that, due to his signed
10 release, a reasonable person in Declarant’s position would have known that his
11 statements were testimonial in nature.
12 {82} In sum, we conclude that the level of involvement of law enforcement in the
13 SANE exam here does not implicate the “assistance and encouragement” concerns
14 recognized in Romero. See 2007-NMSC-013, ¶ 17.
15 4. The circumstance of the SANE nurse’s identity as it bears on the
16 challenged statements
17 {83} Because the SANE nurse’s identity may shift between their dual roles during
18 a SANE exam, we analyze Starr’s identity in relation to the underlying purposes of
19 each of the forms of the SANE exam which elicited the challenged statements. For
20 this circumstance to weigh toward a testimonial primary purpose for an individual
51
1 statement, the forensic purpose of the relevant SANE exam question must be more
2 important than its medical care purpose, thus rendering Starr’s forensic role greater
3 than her medical care role regarding that question. See Langham v. State, 305 S.W.3d
4 568, 578-79 (Tex. Crim. App. 2010) (“It is . . . likely that, by ‘primary purpose,’ the
5 Supreme Court [in Davis] meant to convey the purpose that is ‘first’ among all
6 potentially competing purposes ‘in rank or importance.’” (citing Davis, 547 U.S. at
7 822)). In this regard, the Court of Appeals correctly concluded that “Starr’s identity
8 as a SANE [nurse] . . . as it has particular relevance in this case” does not establish
9 a presumption either toward testimonial or nontestimonial weight. Tsosie, A-1-CA-
10 37791, mem. op. ¶ 15.
11 {84} Starr testified as to the purposes underlying each of the eight SANE exam
12 forms that elicited the challenged statements. For each form, we consider Starr’s
13 testimony as relevant to determining what a reasonable SANE nurse’s underlying
14 purpose—and thus their role—would be for each of the SANE exam forms that
15 elicited challenged statements.10
10
We note that the district court expressed no credibility concerns regarding
Starr’s testimony and that the record does not include contrary evidence for this
analysis.
52
1 {85} First, regarding the Consent Form, Starr testified that, as discussed above, “the
2 top part [of the form] is very much all about medical treatment,” an intermediate
3 paragraph acknowledges “that we shared [with Declarant] a notice of privacy,” and
4 the final part “is so that we can release this to law enforcement.” She also testified
5 that Declarant “signed for STI prevention [medical care] and photography
6 [forensics] as well as talking about what happened and allowing me to do a basic
7 medical assessment on him.” The foregoing evidence indicates that, as regards the
8 Consent Form as a whole, Starr’s identity was informed as much or more by her
9 medical care role than her forensic role, thus weighing more toward a nontestimonial
10 ruling. As regards the law enforcement release portion alone, Starr’s identity was
11 forensic.
12 {86} Second, regarding the Sexual Assault Intake form, Starr testified that its
13 purpose is to “[g]et a basic medical background . . . [including] statistical data.” She
14 testified that the information obtained in the form is not different from that obtained
15 in a typical intake form in a hospital. On cross-examination, Starr testified that the
16 form’s inclusion of the police report case number was relevant for the forensic
17 purpose of cataloguing evidence properly. The foregoing evidence indicates that
18 Starr’s medical care role informed her identity regarding the Sexual Assault Intake
53
1 form as much as or more than her forensic role, thus weighing more toward a
2 nontestimonial ruling.
3 {87} Third, regarding the History form, Starr testified that its purpose is
4 “[m]edical”:
5 to know . . . [his] baseline, how a patient is, if they had any injuries or
6 issues . . . prior to the assault that would affect how their body is, what
7 medications they’re on, how they’re doing health-wise, . . . basic
8 medical background stuff [including] [a]llergies to medications . . .
9 [and] offer[ing] the tetanus shot . . . [and] the hepatitis B shot as well.
10 Starr testified that the History form’s “Past Medical History/Surgeries” question is
11 potentially relevant to her medical treatment, such as if signs or symptoms were to
12 arise in relation to Declarant’s reported seizure disorder or back injury. Starr testified
13 that the History form’s “Post-Assault Hygiene Activity” section is both medically
14 relevant regarding a patient’s ability to perform activities of daily living and
15 forensically relevant regarding DNA evidence. Starr testified that the History form’s
16 “Offender Information” section is medically relevant to her risk assessment:
17 It’s very important, safety-wise, to know who was the offender. We’re
18 not looking so much for names, in general [beyond state domestic
19 violence law requirements]. . . . [F]or our sexual assault [victims], we
20 typically don’t have the name. We want to know if the person who
21 assaulted them has access to them again. . . . [W]e want our patients to
22 be safe. That’s standard medical care.
23 On cross-examination, Starr confirmed that she had asked Declarant whether
24 Defendant was a household member. The foregoing evidence indicates that Starr’s
54
1 medical care role informed her identity regarding the History form as much as or
2 more than her forensic role, thus weighing more toward a nontestimonial ruling.
3 {88} Fourth, regarding the Strangulation Documentation form, Starr testified at
4 length to its medical importance:
5 Strangulation is a very specific kind of assault . . . [and] is very
6 dangerous because it’s . . . under-assessed medically. As a [non-SANE]
7 nurse, I didn’t learn about strangulation. Doctors are typically not
8 trained around strangulation. . . . And medically, it’s very important
9 because it’s highly correlated to lethality.
10 Starr testified that, based on her specialized training in strangulation, the information
11 regarding its method and manner was relevant to her treatment to “really assess the
12 neck carefully” and to assess possible brain injury. Starr testified that her ability to
13 assess injury resulting from strangulation is informed by “symptoms that the patient
14 will report, and . . . signs that [the SANE nurse] can see, and we want to document
15 both of those.” It follows logically that in posing the questions in the Strangulation
16 Documentation form that would elicit information regarding such symptoms and
17 signs, Starr’s medical care role informed her identity as much as or more than her
18 forensic role. The evidence here weighs more toward a nontestimonial ruling.
19 {89} Fifth, regarding the Patient Narrative form, Starr testified that it was
20 medically necessary to learn “what happened to [Declarant], what happened to his
21 body and how he felt, [and] how he’s doing.” Starr affirmed that the SANE exam
55
1 medical history is not different from taking a general history at a general wellness
2 visit, because “[w]e want to know . . . what the scenario was when patients are
3 talking about their illness or their issues.” The foregoing evidence indicates that
4 Starr’s medical care role informed her identity regarding the Patient Narrative form
5 as much as or more than her forensic role, thus weighing more toward a
6 nontestimonial ruling.
7 {90} Sixth, regarding the Acts Described by Patient form, Starr testified that
8 knowing “what went where” is important for medical purposes relating to
9 prophylaxis and locations of injuries to treat, as well as for forensic purposes relating
10 to locations to swab for evidence. Starr testified that ejaculation is medically relevant
11 because “we’re worried about illness, disease, [and] . . . cleanliness.” The foregoing
12 evidence indicates that Starr’s medical care role informed her identity regarding the
13 Acts Described by Patient form as much as or more than her forensic role, thus
14 weighing more toward a nontestimonial ruling.
15 {91} Seventh, regarding the Physical Exam form, Starr testified that “[t]his is a
16 basic medical screen. We want to make sure that the patient is healthy, is safe to go
17 home, [and] is otherwise medically stable” by assessing factors including blood
18 pressure, pulse, and ketones. The foregoing evidence indicates that Starr’s medical
56
1 care role informed her identity regarding the Physical Exam form as much as or more
2 than her forensic role, thus weighing more toward a nontestimonial ruling.
3 {92} Eighth, regarding the Body Map – Physical Exam/Assessment form, Starr
4 testified to the medical importance of its general descriptions to help assess the
5 injuries she observed. We note that these descriptions appear to be largely Starr’s
6 statements of observation but include some statements from Declarant about those
7 injuries. Starr testified that she treats injuries described in this form “if it’s
8 necessary.” The foregoing evidence indicates that Starr’s medical care role informed
9 her identity regarding the Body Map – Physical Exam/Assessment form as much as
10 or more than her forensic role, thus weighing more toward a nontestimonial ruling.
11 {93} In sum, Starr’s testimony offers medical care purposes underlying each of the
12 forms in the SANE exam that elicited the challenged statements. To the extent that
13 the SANE exam questions reflect Starr’s identity pursuant to her medical care role
14 as a SANE nurse, we conclude that this circumstance weighs toward the challenged
15 statements being nontestimonial.
16 5. Analysis of the surrounding circumstances by the district court and
17 Court of Appeals
18 {94} The district court seemingly relied on a narrow reading of Davis and did not
19 consider the implications of Bryant or Clark. Under such a reading, a court can easily
20 and improperly infer that circumstances supporting a law enforcement officer’s first
57
1 responder role are requirements for a SANE nurse’s medical care role. While both
2 roles are focused on something other than creating an out-of-court substitute for trial
3 testimony, conflating the factors attendant with these distinct roles results in a
4 stunted analysis and reliance on presumptions.
5 {95} The district court’s legal conclusions regarding the surrounding circumstances
6 appear to have relied on presumptions that (1) emergency or informality is required
7 for a nontestimonial primary purpose, whereas statements made outside of such
8 circumstances are categorically testimonial where they refer to past events, 11 and (2)
9 medical care that is duplicative of prior emergency care weighs toward a testimonial
10 primary purpose.12 To the extent that the district court did apply such presumptions,
11 we clarify that they are improper, as discussed above. To the contrary, Bryant
12 requires that the primary purpose test be applied objectively, considering “all of the
As discussed, the district court cited Romero, 2007-NMSC-013, ¶ 21, for the
11
proposition that “the level of formality of the interrogation is a key factor” in
testimonial analysis. This citation was taken from the Romero Court’s discussion of
the declarant’s statements made to the responding law enforcement officer, id. ¶¶ 19-
22, which followed its discussion regarding statements made to the SANE nurse, id.
¶¶ 12-18. Romero did not invoke formality in its primary purpose analysis of the
statements made in the course of the SANE exam. See id. ¶¶ 12-18.
The flaw of the second presumption is demonstrated, albeit anecdotally, by
12
the facts in Burke, 478 P.3d at 1105, 1111, wherein the SANE nurse discovered a
cervical laceration in the declarant that had not been discovered by the emergency
department physician.
58
1 relevant circumstances,” without applying such presumptions. 562 U.S. at 360, 369-
2 70. As to the majority of the challenged statements, the surrounding circumstances
3 in this case support the conclusion that the SANE exam was motivated toward the
4 provision of medical care as a primary purpose.
5 {96} We conclude that the Court of Appeals applied Navarette’s second
6 confrontation principle to the surrounding circumstances to determine Declarant’s
7 subjective “level of understanding of the purpose of his statements to Starr,” rather
8 than applying an objective test. Tsosie, A-1-CA-37791, mem. op. ¶ 16 (“[W]e
9 conclude that [Declarant] understood that at least some of his statements would be
10 used to prosecute Defendant.”). While Bryant expressly requires that the primary
11 purpose test is an objective test, 562 U.S. at 360, we recognize that the second
12 Navarette confrontation principle may appear to require otherwise. See 2013-
13 NMSC-003, ¶ 8 (“[A] statement can only be testimonial if the declarant made the
14 statement primarily intending to establish some fact with the understanding that the
15 statement may be used in a criminal prosecution.”). We read this principle in
16 Navarette to fit within Bryant’s requirement of an objective and combined inquiry
17 into the statements and actions of the participants. See Bryant, 562 U.S. at 360. We
18 clarify that Navarette’s second confrontation principle cannot be applied to alter or
19 reduce the requirements of the primary purpose test as provided in this opinion.
59
1 6. Combined inquiry into the participants’ statements and actions
2 {97} In light of the foregoing analysis of the surrounding circumstances, we next
3 analyze the statements and actions of Starr and Declarant to determine the
4 testimonial nature of each of the challenged statements. The State contends that
5 Declarant’s statements are all nontestimonial based on the primary purpose of the
6 examination being medical. Defendant contends that statements accusing Defendant
7 of specific criminal acts are facially testimonial.
8 {98} Without repeating our analysis, we incorporate our discussion of Starr’s
9 questions posed in the SANE exam forms as they related to the surrounding
10 circumstance of her identity in her dual role as a SANE nurse. We reiterate that
11 medical care purposes underlay each of the SANE exam forms that elicited the
12 challenged statements. Logically, in the absence of contrary evidence, Starr’s
13 medical care role was more present in conveying those questions than was her
14 forensic role. Accordingly, Starr’s statements conveying those questions generally
15 weigh toward a nontestimonial result, with the specific exception of the law
16 enforcement release.
17 {99} Evidence of Declarant’s statements and actions in the SANE exam is limited
18 to his responses as recorded by Starr in the SANE exam report. The majority of
19 Declarant’s responses to Starr’s questions provided information that was important
60
1 to guide the provision of medical care in relation to the medical care purposes of the
2 particular questions. As Davis and Bryant demonstrate, statements that identify or
3 accuse a defendant of specific criminal acts may nonetheless be rendered
4 nontestimonial by virtue of a primary purpose that “focuses the participants on
5 something other than ‘proving past events potentially relevant to later criminal
6 prosecution.’” Bryant, 562 U.S. at 361 (brackets omitted) (quoting Davis, 547 U.S.
7 at 822). Declarant’s statements within that scope are nontestimonial. A response by
8 Declarant exceeding that scope became testimonial where it also identified
9 Defendant or accused him of specific criminal acts. See Romero, 2007-NMSC-013,
10 ¶¶ 15-17. We identify below those testimonial statements where they appear in each
11 of the eight relevant SANE exam forms.
12 {100} First, in the Consent Form, we hold to be testimonial only Declarant’s consent
13 to release records and evidence to law enforcement, for reasons previously
14 discussed.
15 {101} Second, in the Sexual Assault Intake form, we hold to be testimonial only
16 Declarant’s statement that Defendant “stole his phone.” That statement is not
17 important to the provision of medical care and is accusatory, presumably toward
18 Defendant.
61
1 {102} Third, in the History form, we hold to be testimonial only Declarant’s
2 statement identifying Defendant as “Oliver.” The alleged assailant’s identity was
3 important to the provision of medical care regarding his relationship and continued
4 access to Declarant in order for Starr to complete her risk assessment. However,
5 Starr testified that the scope of such information important to her risk assessment for
6 Declarant did not include the perpetrator’s name. This statement identifying and
7 accusing Defendant is therefore testimonial. Apart from that statement, the
8 statements within the History form, including the remaining statements in the
9 Offender Information section, were within the scope of information important to
10 guide Starr’s provision of medical care.
11 {103} Fourth, in the Strangulation Documentation form, we hold all of the relevant
12 statements to be nontestimonial. We recognize that Declarant’s statements
13 specifying the alleged method and manner of strangulation might be prejudicial,
14 such as in specifying that Defendant used two hands and that his grip was “really
15 strong.” However, we also recognize that Starr logically would use such statements
16 to guide her discovery and assessment of signs of strangulation, thus rendering the
17 statements important to her provision of medical care. Because “every strangulation
18 is different,” Starr logically would rely on all such details to inform her assessment
19 of Declarant’s injury. Albeit a close call, we deem the method and manner statements
62
1 to serve a medical care purpose more than a forensic purpose, thus rendering them
2 nontestimonial. We also note that any prejudicial nature within such statements is a
3 matter for the district court’s post-confrontation analysis under Rule 11-403 NMRA.
4 {104} Fifth, in the Patient Narrative form, we hold the following statements to be
5 testimonial as exceeding the scope of the medical care purposes underlying the form
6 and as identifying Defendant or accusing him of specific criminal acts:
7 I asked how they got in there. They said they crawled over the gate.
8 The way they were saying things to me, trying to make me mad. Things
9 like why don’t I let them in, or take their calls. Asking about my “new
10 boyfriend” I said he is just a friend, nothing going on.
11 I went to the bedroom, then they both came into the bedroom and tied
12 me up. They used a trash bag, they used a towel over my mouth so I
13 wouldn’t yell . . . They tied my feet too . . . Oliver . . . was trying to get
14 his friend to take part, he just watched and held me down. (First and
15 second omissions in original.)
16 He took my clothes off, I noticed when I got up, I was naked, they stole
17 my TV, DVD player, stereo system and my phone. I don’t know what
18 else they took.
19 Apart from those statements, the statements within the Patient Narrative form were
20 nontestimonial as within the scope of information important to guide Starr’s
21 provision of medical care.
63
1 {105} Sixth, in the Acts Described by Patient form, we hold all of the relevant
2 statements to be nontestimonial as within the scope of information important to
3 guide Starr’s provision of medical care.
4 {106} Seventh, in the Physical Exam form, we hold all of the relevant statements to
5 be nontestimonial as within the scope of information important to guide Starr’s
6 provision of medical care.
7 {107} Eighth, regarding the Body Map – Physical Exam/Assessment form, we hold
8 all of the relevant statements to be nontestimonial. Declarant’s statements included
9 accusatory descriptions regarding particular injuries of “where he punched me” and
10 “where I was tied.” However, those descriptions also convey the nature of the
11 injuries and thus are within the scope of information that was important to guide
12 Starr’s provision of medical care.
13 7. Analysis of the participants’ statements and actions by the district court
14 and Court of Appeals
15 {108} The district court appears to have attributed undue significance to Starr’s
16 testimony that she cannot “diagnose,” concluding that “the majority of statements
17 given [by Declarant] to the SANE nurse were not given for the primary purpose of
18 medical diagnosis.” The district court appears to have applied the well-established
19 hearsay exception for medical diagnosis and treatment in calling on Rule 11-803(4)
20 to define medical care as a nontestimonial purpose under the Confrontation Clause.
64
1 {109} Placing Starr’s relevant testimony in context, we take notice of her testimony
2 on redirect examination distinguishing between her ability to make a limited nursing
3 diagnosis and a physician’s purview to make an official medical diagnosis. We
4 discern no legal basis on which to conclude that the limited nature of a nursing
5 diagnosis would render that diagnosis incapable of enabling the provision of medical
6 care. Our research reveals no Confrontation Clause cases in which statements were
7 excluded due to being relevant to a nursing diagnosis but not to a medical diagnosis.
8 Even in the hearsay context, weighing the medical diagnosis and treatment exception
9 therein, our research similarly reveals no cases in which statements were excluded
10 due to being elicited in a nursing diagnosis. To the contrary, courts in multiple cases
11 have accepted statements under the hearsay exception for medical diagnosis or
12 treatment that were made within the scope of a nurse’s limited ability to diagnose.
13 E.g., Commonwealth v. Jennings, 2008 PA Super 230, ¶ 16, 958 A.2d 536.
14 {110} Concurrently, apart from her ability to diagnose, Starr’s testimony included
15 no such limitation on her ability to provide medical treatment. Her testimony
16 includes multiple examples of Starr in fact providing medical treatment to
17 Declarant⸻specifically, treatment related to physical trauma, sexually transmitted
18 disease, and safety assessment. It follows reasonably that questions and answers
19 related to such treatment were provided to assist in the provision of medical care at
65
1 least as regards treatment, regardless of the precise definition of diagnosis applied.
2 Thus, any conclusion that Starr’s provision of medical care did not meet the standard
3 set by the hearsay exception for medical diagnosis or treatment is improper.
4 {111} Notwithstanding the foregoing, there is no obvious requirement in law for
5 applying the hearsay exception for medical diagnosis or treatment to define the
6 medical content standard for statements satisfying the Confrontation Clause. While
7 we need not decide whether the two standards are identical, there is no basis for
8 concluding that the standard for a SANE nurse’s medical care role is narrower than
9 that recognized under Rule 11-803(4). Therefore, we conclude that Starr’s provision
10 of treatment and nursing diagnosis—notwithstanding her statement regarding an
11 inability to diagnose—constitutes medical care for the purposes of confrontation
12 analysis. To the extent that the district court inferred some limitation on the
13 relevance of Declarant’s statements to Starr’s provision of medical care in her dual
14 role as a SANE nurse, we reject such an inference.
15 {112} The Court of Appeals gave testimonial weight to Declarant being “asked in
16 detail about the assault during the examination, [and] asked to provide forensic
17 genital and anal swabs.” Tsosie, A-1-CA-37791, mem. op. ¶ 16. As we have
18 discussed, information regarding details of a sexual assault can certainly fall within
19 the scope of information that is important to guide the provision of medical care, and
66
1 accordingly we do not agree that questions about the assault were necessarily
2 testimonial. The issue is whether such questions were important to the SANE nurse’s
3 ability to provide medical care. We agree with the Court of Appeals that statements
4 relating to the requested swabs were clearly for forensic purposes, but those
5 statements were not among the statements sought by the State for use at trial.
6 {113} The Court of Appeals also appears to have applied a presumption that
7 statements are testimonial if their content “identifies Defendant [or] accuses him of
8 specific acts” or “focus[es] on past events rather than current symptoms.” Tsosie, A-
9 1-CA-37791, mem. op. ¶ 17. However, as we have discussed, Bryant’s context-
10 dependent inquiry requires that the primary purpose test be applied objectively,
11 considering “all of the relevant circumstances,” without such presumptions. See 562
12 U.S. at 369-70. Under Bryant, the content of a statement does not alone determine
13 its testimonial nature. Id.
14 III. CONCLUSION
15 {114} We conclude that the primary purpose of the majority of Declarant’s
16 statements made in the course of the SANE exam was nontestimonial, and thus
17 admission of those nontestimonial statements at trial does not violate Defendant’s
18 constitutional right to confrontation. Accordingly, we reverse and remand to the
19 district court for further proceedings consistent with this Court’s opinion. We
67
1 reiterate that testimonial inquiry merely establishes an analysis threshold for
2 admissibility of Declarant’s statements sought by the State for use at trial. Where a
3 statement has been determined to be nontestimonial, “‘the admissibility of [that]
4 statement is the concern of state and federal rules of evidence, not the Confrontation
5 Clause.’” Clark, 576. U.S. at 245 (quoting Bryant, 562 U.S. at 359).
6 {115} IT IS SO ORDERED.
7
8 C. SHANNON BACON, Chief Justice
9 WE CONCUR:
10
11 DAVID K. THOMSON, Justice
12
13 JULIE J. VARGAS, Justice
14 MICHAEL E.VIGIL, Justice, dissenting
68
1 VIGIL, Justice (dissenting).
2 {116} In my opinion, the majority misapplies the “primary purpose” test to conclude
3 that the entirety of the SANE examination report is nontestimonial under the
4 Confrontation Clause of the Sixth Amendment to the United States Constitution. In
5 arriving at its conclusion, the majority also ignores the “primary purpose” of the
6 SANE report by looking only at individual parts of the report instead of the objective
7 circumstances under which it was produced. Finally, viewed in its entirety, the
8 majority opinion improperly equates the medical diagnosis or treatment exception
9 to the hearsay rule with confrontation under the Sixth Amendment. Since I cannot
10 agree with these conclusions, I respectfully dissent.
11 {117} I conclude, for the reasons set forth herein, that the SANE examination report
12 is testimonial and that its admission into evidence is barred by the Sixth Amendment.
13 I therefore join several other courts in arriving at a similar conclusion. See Hartsfield
14 v. Commonwealth, 277 S.W.3d 239, 244 (Ky. 2009) (“We believe their function of
15 evidence gathering, combined with their close relationships with law enforcement,
16 renders SANE nurses’ interviews the functional equivalent of police questioning.”);
17 see also Medina v. State, 143 P.3d 471, 476 (Nev. 2006) (defining a SANE as a
18 “police operative” because a SANE “gathers evidence for the prosecution for
19 possible use in later prosecutions,” thus leading “an objective witness to reasonably
69
1 believe that the statements would be available for use at a later trial”); see also State
2 v. Cannon, 254 S.W.3d 287, 305-06 (Tenn. 2008) (excluding statements of an
3 unavailable witness previously made to a sexual assault nurse as testimonial because
4 emergency room personnel had examined and stabilized that witness before the
5 nurse conducted the structured interview). Courts that have declined to adopt a per
6 se rule regarding the primary purpose of SANE examinations have still found that a
7 SANE acted as a law enforcement agent when acting in her evidence-collecting role.
8 See, e.g., State v. Bennington, 264 P.3d 440, 452, 455 (Kan. 2011) (explaining that
9 the SANE asked a victim questions from a state-provided questionnaire as part of
10 completion of the sexual assault evidence collection kit); State v. Miller, 264 P.3d
11 461, 488 (Kan. 2011) (same); People v. Vargas, 178 Cal. App. 4th 647, 662 (2009)
12 (concluding that the SANE who examined a victim hours after an assault did so “for
13 the primary purpose of documenting the nature of the sexual assault and gathering
14 evidence for transmittal to the police and for possible later use in court”); State v.
15 Hooper, 176 P.3d 911, 917-18 (Idaho 2007) (determining several factors indicating
16 that the examiner worked in concert with police); Hernandez v. State, 946 So. 2d
17 1270, 1280-83 (Fla. Dist. Ct. App. 2007) (concluding that the nurse’s questions were
70
1 the functional equivalent of police interrogation). 13
2 I. THE PRIMARY PURPOSE TEST
3 {118} The Confrontation Clause of the Sixth Amendment directs, “In all criminal
4 prosecutions, the accused shall enjoy the right . . . to be confronted with the
5 witnesses against him.” When the state seeks to introduce “testimonial evidence” the
6 Confrontation Clause “demands what the common law required: unavailability and
7 a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36,
8 68 (2004). The command of the Confrontation Clause is “not that evidence be
9 reliable, but that reliability be assessed in a particular manner: by testing in the
10 crucible of cross-examination.” Id. at 61. While Crawford specifically declined to
11 provide a comprehensive definition of “testimonial,” it stated that “it applies at a
12 minimum to prior testimony at a preliminary hearing, before a grand jury, or at a
13 former trial; and to police interrogations.” Id. at 68.
14 {119} Then, in Davis v. Washington, 547 U.S. 813 (2006), the United States
15 Supreme Court elaborated on how to determine a statement’s testimonial nature. The
16 Davis Court recognized that comprehensively classifying testimonial statements was
The sources and parentheticals in this paragraph were compiled by Justice
13
Gordon McCloud in her concurrence in State v. Burke, 478 P.3d 1096, 1121 n.8,
1123 (Wash. 2021) (Gordon McCloud, J., concurring).
71
1 futile, and instead established the “primary purpose test”:
2 Statements are nontestimonial when made in the course of police
3 interrogation under circumstances objectively indicating that the
4 primary purpose of the interrogation is to enable police assistance to
5 meet an ongoing emergency. They are testimonial when the
6 circumstances objectively indicate that there is no such ongoing
7 emergency, and that the primary purpose of the interrogation is to
8 establish or prove past events potentially relevant to later criminal
9 prosecution.
10 Id. at 822. By focusing on the “primary purpose” for the interrogation, the test
11 recognizes that an interrogation is not necessarily limited to a single purpose, and
12 when other contemporaneous purposes also exist, the “primary purpose” dominates.
13 This test therefore requires a court to ascertain what the “primary purpose” for the
14 interrogation is and not focus on any specific question or answer. This is supported
15 by the use of the word “Statements” in the test. When the “primary purpose” for the
16 interrogation is to establish or prove past events potentially relevant to a later
17 criminal prosecution, all of the statements that result are deemed to be “testimonial.”
18 Id. There is no subsequent line-by-line or word-by-word assessment. Thus, the focus
19 is on the “primary purpose of the interrogation” and not on any specific question or
20 answer.
21 {120} The Davis Court also insisted that the “primary purpose” determination must
22 be made on an objective basis. Id. at 822. This was reiterated in Michigan v. Bryant,
23 when the United States Supreme Court emphasized that an “objective analysis of the
72
1 circumstances of an encounter and the statements and actions of the parties to it
2 provides the most accurate assessment of the ‘primary purpose of the interrogation.’”
3 562 U.S. 344, 360 (2011). First, the circumstances under which the encounter occurs
4 are “clearly matters of objective fact.” Id. These include whether the encounter is at
5 a crime scene or during an ongoing emergency or afterwards. Second, in conducting
6 an objective analysis of the statements and actions of the parties, “the relevant
7 inquiry is not the subjective or actual purpose of the individuals involved in a
8 particular encounter, but rather the purpose that reasonable participants would have
9 had, as ascertained from the individuals’ statements and actions and the
10 circumstances in which the encounter occurred.” Id. Stated in another way, a court
11 makes this determination “by objectively evaluating the statements and actions of
12 the parties to the encounter in light of the circumstances in which the interrogation
13 occurs.” Id. at 370.
14 {121} Encounters potentially producing testimonial statements are not limited to
15 encounters with police officers. In Davis, statements were given in response to a 911
16 operator’s questions. 547 U.S. at 817-18. The Court recognized that although not
17 law enforcement officers themselves, 911 operators “may at least be agents of law
18 enforcement when they conduct interrogations of 911 callers.” Id. at 823 n.2. Ohio
19 v. Clark, 576 U.S. 237, 240-41 (2015), addressed statements made by a three-year-
73
1 old student to his teacher. The United States Supreme Court specifically declined to
2 categorically exclude statements made to individuals who are not principally
3 charged with uncovering and prosecuting criminal behavior, while noting that “such
4 statements are less likely to be testimonial.” Id. at 246.
5 {122} From this precedent, the following general principles emerge. First, if the
6 “primary purpose” of the encounter is to identify a perpetrator or to “establish or
7 prove past events potentially relevant to later criminal prosecution,” then all of the
8 statements produced during that encounter are testimonial under the Confrontation
9 Clause. Davis. 547 U.S. at 822. The focus is on the primary purpose of the encounter
10 and not on any individual statement. Id. Second, a proper assessment of the primary
11 purpose of the encounter is viewed from the objective perspective of a reasonable
12 participant at the time of the encounter and “not with the benefit of hindsight.”
13 Bryant, 562 U.S. at 360, 361 n.8.
14 II. APPLICATION OF THE PRIMARY PURPOSE TEST
15 {123} It is clear that the primary purpose of the SANE examination was forensic: to
16 establish or prove facts relevant to a later criminal prosecution of Defendant. I arrive
17 at this conclusion by objectively considering (1) the circumstances of the encounter,
18 (2) Starr’s objective purpose in conducting the examination, (3) Declarant’s purpose
19 in submitting to the examination, and (4) the formality of the examination.
74
1 A. Circumstances of the Encounter
2 {124} Critical factors to objectively consider are the circumstances under which the
3 encounter took place and whether the encounter was to address an emergency. The
4 facts leading up to the SANE examination are as follows.
5 {125} On December 18, 2017, at approximately 8:00 p.m., Declarant went to his
6 neighbor’s home to contact 911. Law enforcement arrived about thirty minutes after
7 the 911 call. Declarant told them that around 7:00 p.m. that night, Defendant and
8 another man came to his apartment, and Defendant was angry, apparently because
9 he believed that Declarant had a new boyfriend. Declarant said he was repeatedly
10 punched in the face, kicked, choked, tied up, threatened with a knife, and penetrated
11 in his mouth and anus by Defendant with his penis while the other man held him
12 down. Before leaving, they stole his television, DVD player, stereo system, and
13 phone. Declarant said he then went to his neighbor’s home to contact 911 after he
14 freed himself.
15 {126} Declarant initially refused medical attention after law enforcement arrived.
16 Still, the officers suggested that the paramedics should be called to examine
17 Declarant. Paramedics subsequently arrived at Declarant’s apartment and treated
18 him. Around 9:00 p.m. the paramedics transported Declarant to the University of
19 New Mexico Hospital (UNMH). At UNMH, doctors and nurses examined and
75
1 treated Declarant. He also received a CT scan apparently because he had a swollen
2 eye.
3 {127} At 12:35 a.m., Detective Gomez asked Declarant, “I know you had talked to
4 the officer about it but are you willing to see a sexual assault nurse?” Declarant
5 responded, “Yes.” The detective then asked, “Is that something you would like to do
6 tonight?” Declarant said, “Okay.” Around 2:25 a.m. a police officer asked Declarant
7 to sign a document giving Albuquerque Police Department (APD) officers
8 permission to search his apartment “for evidence, things that might pertain to this
9 case.” As Declarant signed that consent-to-search form, the officer stated, “We will
10 get going to the Family Advocacy Center in just a moment, OK?”
11 {128} The APD officer then walked with Declarant out of UNMH to his squad car
12 and drove Declarant to the Albuquerque SANE Collaborative at the Family
13 Advocacy Center (Center). The Center is located in downtown Albuquerque at 625
14 Silver Avenue SW. Offices of APD detectives are in the same building. Gail Starr,
15 a SANE, greeted the officer and Declarant inside. While riding in the elevator up to
16 the examination rooms, Starr asked the officer if he knew which detectives were
17 working on the case and if they were coming to the Center. Before leaving, the
18 officer told Starr, “I will probably meet up with the detectives and see what else they
19 need.” The SANE examination started at approximately 3:00 a.m.
76
1 {129} Based on the foregoing facts, I conclude Declarant was not facing an ongoing
2 emergency during his SANE examination. An “ongoing emergency” is an active
3 threat at the time the statements are made. See, e.g., Bryant, 562 U.S. at 374
4 (contemplating an active shooter whose location and motivations were unknown
5 during the interrogation). The closer the events of an alleged crime are to the
6 statements describing the events, the more likely there is an ongoing emergency. See
7 State v. Soliz, 2009-NMCA-079, ¶ 20, 146 N.M. 616, 213 P.3d 520 (assessing
8 “temporal proximity” to distinguish an ongoing threat from a past incident). For
9 example, in Hammon—the companion case to Davis—the Indiana police responded
10 to a “domestic disturbance” that had ended before their arrival. Davis, 547 U.S. at11 819. Even though the attacker was still in the home, the victim and the attacker were
12 separated during questioning, and the victim was in no present danger. Id. at 819-
13 21. Because there was no ongoing emergency, the questioning was a criminal
14 investigation.
15 {130} Here, there was no medical emergency. Declarant was able to untie himself
16 and go to his neighbor to call 911 at around 8:00 p.m. Officers responded, and
17 Declarant initially refused medical attention, but at the responding officer’s
18 suggestion, Declarant agreed, and the paramedics were contacted. They responded,
19 treated him, and transported him to UNMH at around 9:00 p.m. Doctors and nurses
77
1 at UNMH treated and released Declarant. The SANE examination commenced at
2 3:00 a.m. There is no indication at any time prior to his arrival for the SANE
3 examination that there was a medical emergency of any sort, and the examination
4 took place around eight hours after Declarant said he was assaulted, tied up, and
5 robbed. Moreover, there is no suggestion whatsoever that Declarant was in any
6 danger at the time of the SANE examination. At around 2:25 a.m. the day after the
7 incident, a police officer transported Declarant from UNMH to the SANE
8 Collaborative at the Center, which is located inside the same building on the same
9 floor as APD detectives. Finally, Starr testified that SANEs are trained to be “very
10 slow and careful with the patient” so that the patients are “really relaxed and
11 comfortable in [the] space,” spending at least two hours with a patient per
12 examination.
13 B. Starr’s Objective Purpose
14 {131} Starr’s primary objective purpose in conducting the examination was forensic,
15 which means “used in legal proceedings or in public discussions.” Webster’s Third
16 New International Dictionary of the English Language, unabridged (1993) at 889. I
17 begin with an overview of the role of SANEs, nationally and locally, in sexual
18 assault investigations. Generally, to become a SANE, registered nurses must
19 complete more than sixty hours of forensic, medical, and psychological training.
78
1 New Mexico Coalition of Sexual Assault Programs (NMCSAP), Roles and
2 Responsibilities of a New Mexico SANE, 1-2 (Roles and Responsibilities).14
3 Together, this training covers assessment of injuries from sexual assaults, treatment
4 for sexually transmitted diseases, forensic photography, fact and expert witness
5 testimony skills, and crisis intervention training. See Julia Chapman, Nursing the
6 Truth: Developing a Framework for Admission of SANE Testimony Under the
7 Medical Treatment Hearsay Exception and the Confrontation Clause, 50 Am. Crim.
8 L. Rev. 277, 280 (2013); see also Jennifer A. Ort, The Sexual Assault Nurse
9 Examiner, 102 Am. J. Nursing 24, 24GG (2002). Nationally, the International
10 Association of Forensic Nurses (IAFN) trains and oversees forensic assault nurses
11 (or SANEs) for all fifty states. Almost 2,000 SANEs are certified by the IAFN in the
12 United States. IAFN, SANEs Trained and Certified by IAFN in 2020; 15 see IAFN,
13 Homepage. 16
Available at https://nmcsap.org/wp-content/uploads/Roles_Responsibilities
14
_New_Mexico_SANE.pdf (last visited July 1, 2022).
15
Available at https://rise.articulate.com/share/Dr3MMRtTTQoRrtQAc3iitq
CEkaP-Ny2h#/lessons/9BtMW0qnH-XOW0y6E-1oIg9omDZ052KL (last visited
July 1, 2022).
16
Available at https://www.forensicnurses.org/ (last visited July 1, 2022).
79
1 {132} The SANE Task Force and NMCSAP outline the qualifications for becoming
2 a New Mexico SANE. Roles and Responsibilities, supra, at 2-4;17 see NMCSAP,
3 Homepage. 18 These required qualifications include current New Mexico Registered
4 Nurse Licensure, a minimum of two years of nursing experience, completion of the
5 SANE six-day didactic training, and proof of demonstrated competency. Roles and
6 Responsibilities, supra, at 4. 19 Trainees are expected to obtain courtroom
7 observation hours of violent crime, sexual assault, homicide, or domestic violence
8 cases and to understand the chain of custody protocols for forensic evidence. 20
9 {133} SANEs do not provide general medical diagnoses or care, nor are they first
10 responders. Starr testified that she could not prescribe medications or diagnose or
11 treat Declarant beyond the injuries associated with the alleged assault. Instead,
12 SANE examinations involve a physical assessment of the victim that includes a
13 forensic exam identifying and recording injuries specifically related to the alleged
14 assault or rape. NMCSAP, Sexual Assault Evidence Kit (SAEK) Instructions (2005)
Available at https://nmcsap.org/wp-content/uploads/Roles_Responsibilities
17
_New_Mexico_SANE.pdf (last visited July 1, 2022).
18
Available at https://nmcsap.org/ (last visited July 1, 2022).
Available at https://nmcsap.org/wp-content/uploads/Roles_Responsibilities
19
_New_Mexico_SANE.pdf (last visited July 1, 2022).
20
Id. at 2-4.
80
1 at 1. 21 Photographs document visible injuries like bruises, lacerations, and other
2 abrasions; the SAEK contains swabs and samples of specimens. 22 The SANE turns
3 this evidence over to the appropriate law enforcement agency if the patient consents
4 to the release of the records. SANE training objectively suggests a forensic purpose.
5 {134} With the foregoing background in mind, I turn to the location of the
6 examination and its relationship to law enforcement. See Bryant, 562 U.S. at 360
7 (“An objective analysis of the circumstances of an encounter and the statements and
8 actions of the parties to it provides the most accurate assessment of the ‘primary
9 purpose of the interrogation.’ The circumstances in which an encounter occurs . . .
10 are clearly matters of objective fact.”) An APD officer drove Declarant from UNMH
11 to the SANE Collaborative, which is located in the same building and on the same
12 floor as APD detectives. This colocation of the examination objectively suggests a
13 forensic purpose.
14 {135} Objectively, the circumstances surrounding the SANE examination are that
15 there was no medical necessity for Declarant to see Starr. He first refused medical
16 treatment and then agreed to medical attention at the suggestion of the police. The
Available at http://www.ncdsv.org/images/SexAssaultEvidenceKit
21
Instructions.pdf (last visited July 1, 2022).
22
Id. at 4-6.
81
1 paramedics treated Declarant and took him to UNMH, where he was further treated
2 and released. The lack of a medical necessity suggests that the SANE examination
3 was for forensic purposes.
4 {136} I now turn to the examination itself. Before the actual examination
5 commenced, Declarant signed a form, the first page of the SANE examination
6 report, giving “consent to release all records and evidence pertaining to this case to
7 the pertinent law enforcement agency, Crime Victim Reparation Commission,
8 Children, Youth, & Families Div., Adult Protective Services, District Attorney’s
9 Office & the APD Crime Lab.” The examination report’s second page, the Sexual
10 Assault Intake form, notes both the name of the detective who responded to the
11 sexual assault and the police report case number. This is consistent with Starr’s
12 testimony, “We work with the police.”
13 {137} Starr’s questions focused on recording and collecting forensic information.
14 Declarant was asked to describe in detail the events before the attack began⸻who
15 was involved, the beating, the sexual assaults, and the robbery⸻which Starr
16 recorded verbatim as best she could. The narrative included that “offender”
17 performed oral and anal copulation on Declarant with ejaculation inside Declarant’s
18 anus.
19 {138} An entire page of the SANE examination report is dedicated to information
82
1 about the alleged perpetrator and past abuse. Here Starr noted that Defendant and
2 Declarant “dated a month,” Defendant “lived [with Declarant for] ~ 2 weeks,”
3 Defendant “was acting jealous,” and Defendant was “stealing from [Declarant]
4 before—why relationship ended.” Further questions included, (1) “Does your abuser
5 have access to a gun?” to which Declarant answered “no”; (2) “Has the violence
6 increased in frequency/severity over the last year?” where Declarant’s response was
7 “first time”; (3) “Does your abuser use alcohol or drugs?” to both of which the
8 response was “yes” noting “Meth”; (4) “Have you been strangled by your abuser in
9 the last year?” where the response was “First time”; and (5) “Does your abuser have
10 a mental illness?” where the response was “Think so.”
11 {139} On a subsequent page with line sketches of human bodies, Starr placed
12 numbers showing eighteen locations where she observed abrasions, bruises,
13 swelling, cuts, pain, scratches, and redness that Declarant reported. The numbers
14 were noted on the front, back, sides, head, and face of the body sketches similar to
15 those on autopsy reports. Starr then explained each number in greater detail in the
16 corresponding numbered text on the next sheet. Starr also examined Declarant’s anus
17 and documented a tear and skin tag at two locations on the anus in a diagram and
18 description of the diagram. Starr took more than sixty photographs of the areas of
19 Declarant’s body she examined.
83
1 {140} As a result of her examination, Starr put together an SAEK. Starr’s kit
2 included Declarant’s consent form, the undergarments he was wearing when he was
3 sexually assaulted (“collected, air dried if necessary, and placed loosely in pre-
4 labeled large brown bag”), air-dried oral swabs (“collected, air dried and two swabs
5 placed in Oral envelope”), air-dried anal swabs (“collected, air dried and two swabs
6 placed in Anal envelope”), skin swabs of hickeys, and photographs.
7 {141} Special instructions for the SAEK are checked as being followed by Starr.
8 Those instructions require the following: “All small white envelopes sealed, taped,
9 initialed, dated, and placed in the large white envelope along with Undergarments
10 small brown bag, also stapled, taped, with integrity seal. Large white envelope
11 sealed, taped, initialed, and dated with integrity seal. The information on the front
12 labels of both the SAEK white envelope and large brown bag is completed and
13 signed by Examiner. Chain of custody is maintained throughout.” The SAEK was
14 sealed with an integrity seal, affixed with the police report case number in
15 accordance with evidence collection protocols, and given to the police along with
16 the SANE examination report.
17 {142} We have previously observed, “When compared with other medical providers,
18 the goals of SANE nurses and SANE examinations can seem more closely aligned
19 with law enforcement . . . .” State v. Mendez, 2010-NMSC-044, ¶ 42, 148 N.M. 761,
84
1 242 P.3d 328. That is decidedly the case here. Starr said she spends at least two hours
2 with a sexual assault patient. During that two hours, in contrast to all the forensic
3 tasks she performed during the SANE examination, the only medical treatment Starr
4 provided to Declarant was an ice pack for his swollen eye and prophylactic
5 vaccinations. Taking all the circumstances together, I conclude that the primary
6 purpose of Starr’s SANE examination was to establish or prove past events
7 potentially relevant to a subsequent criminal prosecution. That is not to suggest in
8 any way that Starr would not treat any medical conditions she came across during
9 the course of her examination. However, objectively observed, that was decidedly
10 not her primary purpose.
11 C. The Declarant’s Objective Purpose
12 {143} I now undertake what the facts show the Declarant’s purpose was in
13 submitting to the SANE examination. While there is no direct evidence as to what
14 Declarant’s purpose was, “the relevant inquiry is not the subjective or actual purpose
15 of the individuals involved in a particular encounter,” but rather it is the purpose that
16 a “reasonable participant[] would have had” in the same situation. Bryant, 562 U.S.
17 at 360. I conclude that under the circumstances a reasonable participant would have
18 understood that the process of collecting and preserving evidence was for a potential
19 criminal case. See Davis, 547 U.S. at 822.
85
1 {144} First, we know that a detective spoke to Declarant at UNMH about seeing a
2 SANE, and when he was later asked, he said he was willing to do so and assented to
3 speaking to the SANE later that same night. We also know that a police officer asked
4 Declarant to sign a form consenting to a search of his apartment for evidence, and
5 as he signed the form, the officer said the police were going to get Declarant to the
6 Center “in just a moment.”
7 {145} Second, a law enforcement officer drove Declarant to the Family Advocacy
8 Center, an “environment that focuses on the needs of victims of interpersonal
9 crime,”23 which is colocated in the same building, and on the same floor, that houses
10 APD detectives.
11 {146} Third, before Starr began the examination, Declarant had to read and sign the
12 SANE examination report’s consent form that included a release of information to
13 law enforcement, the APD crime lab, and the District Attorney’s Office. Then,
14 Declarant provided a detailed narrative about the assault, which prompted Starr to
15 collect forensic genital and anal swabs as well as to identify on diagrams his alleged
16 injuries and to take over sixty photographs of those alleged injuries. When Starr was
17 asked if the purpose of taking certain swabs was to give them to the police, Starr
Available at https://www.cabq.gov/albuquerque-family-advocacy-center
23
(last visited July 1, 2022).
86
1 agreed and added, “And it is to support the patient’s desire to report this assault to
2 the police.”
3 {147} Fourth, at the end of the examination, Starr provided Declarant with discharge
4 instructions that included “Police Investigative Information.” Since Declarant
5 consented to reporting the alleged sexual assault, the discharge paperwork included
6 instructions on how to launch an investigation into the alleged crimes, contact
7 information for the APD, the designated contact agent, and the APD police report
8 case number associated with the SAEK. While Starr testified, “We work with the
9 police. We do not work for the police,” the inclusion of law enforcement contact
10 information would lead a reasonable participant to believe the evidence collected
11 during the exam could serve an evidentiary purpose.
12 {148} Thus, the objective circumstances of the exam would have alerted a
13 reasonable participant to the potential future prosecutorial use of that participant’s
14 statements. The primary purpose of the examination was to create a record “to
15 establish or prove past events potentially relevant to later criminal prosecution.”
16 Davis, 547 U.S. at 822. For these reasons, Declarant’s primary purpose in submitting
17 to the SANE examination was to provide “testimony” supporting his allegations
18 rather than to receive medical attention.
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1 D. Formality of the Examination
2 {149} The formality of the SANE examination weighs in favor of concluding that
3 the SANE examination report is testimonial. Declarant was in a formal, safe, and
4 tranquil environment during the examination. Formality “is a key factor in
5 determining whether the statement is testimonial” and suggests the absence of an
6 emergency. State v. Romero, 2007-NMSC-013, ¶ 21, 141 N.M. 403, 156 P.3d 694;
7 see Bryant, 562 U.S. at 366, 377. Formality is a function of the location where the
8 statement was made (for example, in a courthouse or at a crime scene) and the
9 manner of recording (such as signing under oath or tape-recording). Compare
10 Crawford, 541 U.S. at 38-39 (involving police interrogations at the police station),
11 with Bryant, 562 U.S. at 349 (considering the statement of a gunshot victim in a
12 parking lot).
13 {150} The formalities and structure surrounding the SANE examination report are
14 more than adequate to qualify the report—and Declarant’s assertions within it—as
15 testimonial. Declarant was questioned in a methodical, calm, and structured
16 examination far-removed from harm. Declarant understood that evidence would be
17 collected during the SANE examination—and included in an SAEK—and still
18 consented to the release of records to law enforcement agencies including the
19 District Attorney’s Office and the APD Crime Lab.
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1 {151} Additionally, the method of recording Declarant’s assertions emphasizes the
2 examination’s formality. The “core class” of testimonial statements exemplified in
3 Crawford, 541 U.S. at 51-53, is not limited to sworn testimony alone. In Bullcoming
4 v. New Mexico, 564 U.S. 647, 664 (2011), the United States Supreme Court reasoned
5 that a “certified” unsworn report of the defendant’s blood alcohol levels was
6 testimonial hearsay because a “document created solely for an ‘evidentiary purpose’
7 . . . made in aid of a police investigation ranks as testimonial.” (citing Melendez-
8 Diaz v. Massachusetts, 557 U.S. 305, 310-11 (2009), for the laboratory report at
9 issue). The Bullcoming Court used the following factors to support its conclusion:
10 (1) law enforcement conveyed the evidence to the crime laboratory for testing, (2) a
11 laboratory analyst tested the evidence and recorded the results in a “formalized”
12 signed document, and (3) the formal report referred to court rules that provided for
13 the document’s admission into evidence. Id. at 665.
14 {152} Similarly, the SANE examination report’s status as a formal statement stems
15 from the process that created it, despite the absence of an official certification. The
16 SANE examination occurred after police brought Declarant to the Center. Starr
17 collected the forensic evidence and recorded medical and forensic information in the
18 structured and uniform report. Starr was trained to know how evidence is admitted
19 at trial through her SANE training. The report’s “SAEK Checklist” also contains
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1 chain of custody protocols to be checked off as accomplished. When completed, the
2 report and the SAEK were shared with APD.
3 {153} Further, Starr certified the validity of the SANE examination report and the
4 information therein by initialing each page of the report and signing her name as a
5 representative of the Albuquerque SANE Collaborative on the report’s consent form,
6 “Discharge Instructions,” and SAEK Checklist. To certify is to “attest as being true.”
7 Black’s Law Dictionary (11th ed. 2019) 284, 158 (defining attest as “[t]o bear
8 witness; testify” or “[t]o affirm to be true or genuine; to authenticate by signing as a
9 witness”). The SAEK Checklist emphasized the proper collection of evidence
10 stating, “Examiner: The evidence you collect will be examined by either the New
11 Mexico State Crime Lab or the Albuquerque Police Dept. Crime Lab. Accurate
12 documentation provided in this Checklist significantly increases the value of the
13 evidence collected should patient consent to investigation.” Such formality suggests
14 a forensic purpose.
15 III. THE MAJORITY OPINION
16 {154} The majority provides that because “a SANE nurse’s identity pursuant to a
17 dual role may shift multiple times within a SANE exam, the burden of determining
18 [a] circumstance’s proper weight within primary purpose analysis nonetheless
19 remains with our district courts.” Maj. op. ¶ 54. This statement reflects the primary
90
1 flaw in the majority’s reasoning. While it is true that district courts must shoulder
2 the heavy responsibility of sifting through statements, piece-by-piece, making
3 individual decisions on each one, such sifting is done only after it has been concluded
4 that the primary purpose of the encounter is something other than to establish or
5 prove past events potentially relevant to later criminal prosecution. See Davis, 547
6 U.S. at 822, 828 (establishing that an interrogation to determine the need for
7 emergency assistance can evolve into testimonial statements, but only after
8 concluding the circumstances of the “interrogation objectively indicate its primary
9 purpose was to enable police assistance to meet an ongoing emergency”). Rather
10 than looking to the primary purpose of the encounter, the majority looks to each
11 statement made, plus testimony made by Starr about the statements (testimony that
12 was made after the encounter), to determine the primary purpose of each statement,
13 and then extracts that information to determine the primary purpose of the encounter.
14 This is incorrect. Moreover, if what the majority says in paragraph 55 is correct—
15 that a district court may redact testimonial statements at any time, regardless of the
16 primary purpose—it eviscerates the primary purpose test. In other words, simply go
17 and redact any testimonial statements, as the majority does here.
18 {155} The majority begins its analysis stating half of the rule for the primary purpose
19 test, “we begin our ‘highly context-dependent inquiry’ with objective analysis of the
91
1 circumstances in which the parties interacted, then conduct an objective and
2 combined inquiry into the parties’ statements and actions.” Maj. op. ¶ 75 (quoting
3 Bryant, 562 U.S. at 363). However, this Court must objectively evaluate “the
4 statements and actions of the parties to the encounter, in light of the circumstances
5 in which the interrogation occurs.” Bryant, 562 U.S. at 370 (emphasis added).
6 Further, “the relevant inquiry is not the subjective or actual purpose of the
7 individuals involved in a particular encounter, but rather the purpose that reasonable
8 participants would have had, as ascertained from the individuals’ statements and
9 actions and the circumstances in which the encounter occurred.” Id. at 360
10 (emphasis added). The majority attempts to cloak its reliance on Starr’s subsequent
11 testimony and her subjective purpose as being “relevant to determining what a
12 reasonable SANE nurse’s underlying purpose” would be. Maj. op. ¶¶ 32 n.3, 84.
13 {156} By examining the statements and actions and circumstances of the encounter,
14 not testimony made subsequent to the encounter, this Court then determines if the
15 primary purpose of the encounter is to establish or prove past events potentially
16 relevant to later criminal prosecution. See Bryant, 562 U.S. at 357. If it is, there is
17 no sifting or parsing through statements line-by-line. See Davis, 547 U.S. at 828-29.
18 The entire SANE examination report is deemed testimonial and within the scope of
19 the Confrontation Clause. See id. at 821-22 (holding that all the statements of an
92
1 encounter are testimonial when the circumstances objectively indicate “that the
2 primary purpose of the interrogation is to establish or prove past events potentially
3 relevant to later criminal prosecution”). Thus, this Court must look to the statements
4 made and the actions and circumstances that occurred during the encounter, not
5 statements from one of the participants made after the encounter on the “subjective
6 or actual purpose” of the statements made and the actions that occurred during the
7 encounter. Bryant, 562 U.S. at 360. This is where I believe the majority goes awry.
8 {157} The majority concludes that a SANE has dual roles under the examination’s
9 “medical care component” and its “forensic component.” Maj. op. ¶ 51. The majority
10 states that because a SANE’s predominant role in an examination “is likely to change
11 multiple times over the course of a SANE exam,” a court cannot use a SANE’s
12 identity to presume either the testimonial or nontestimonial primary purpose of the
13 statements. Id. Instead, according to the majority, Starr’s identity as a SANE—and
14 in a SANE’s dual role in general—is informed by the underlying purpose of
15 individual statements in the SANE examination. See id. ¶¶ 51, 83-93.
16 {158} So, the majority evaluates to what extent the nature of the questions from the
17 SANE examination “informed” whether Starr was acting in a medical care role or a
18 forensic role. Id. ¶¶ 85-93. To determine the primary purpose of a particular
19 statement, the majority reasons that if the statement is relevant for a medical care
93
1 component, then “Starr’s medical care role informed her identity . . . as much as or
2 more than her forensic role, thus weighing toward a nontestimonial ruling.” Id. ¶ 86.
3 In other words, the classification of a statement as either medical or forensic
4 determines if Starr was acting in a “medical care role” or a “forensic role,” thereby
5 determining whether the statement is nontestimonial or testimonial. Id. ¶ 83.
6 {159} The majority concludes that each of the eight challenged examination forms
7 “informed” Starr’s medical care role more than her forensic role. Id. ¶¶ 85-93. The
8 majority concludes, “To the extent that the SANE exam questions reflect Starr’s
9 identity pursuant to her medical care role . . . , we conclude that this circumstance
10 weighs toward the challenged statements being nontestimonial.” Id. ¶ 93. The release
11 of records portion of the examination form is the only section relative to which the
12 majority deems Starr’s identity to be forensic. Id. ¶ 85.
13 {160} Later, the majority purports to engage in a combined analysis of the statements
14 and actions of the participants⸻Starr and Declarant. Id. ¶¶ 97-107. The majority
15 incorporates its “discussion of Starr’s questions posed in the SANE exam forms as
16 they related to the surrounding circumstance of her identity in her dual role as a
17 SANE nurse.” Id. ¶ 98. The majority concludes that Declarant’s statements that
18 “provided information that was important to guide the provision of medical care in
19 relation to the medical care purposes of the particular questions” are nontestimonial.
94
1 Id. ¶ 99. When Declarant’s statements exceeded that scope, and identified Defendant
2 or any criminal acts, the statements became testimonial. See id. Again, the majority
3 evaluates Starr’s testimony based on her stated subjective reasons for determining
4 the purposes of her examination questions, rather than from a reasonable
5 participant’s perspective. See id. ¶¶ 102-07.
6 {161} The United States Supreme Court precedent evaluating the primary purpose
7 of encounters with state actors is clear and remains unchanged since the creation of
8 the primary purpose test. See Davis, 547 U.S. at 822. The analysis does not concern
9 the subsidiary or corollary purpose of the SANE examination. See id. The case law
10 addresses the SANE examination’s primary, or fundamental, purpose. See id.11 Instead of evaluating the totality of an alleged sexual assault encounter, as prescribed
12 by precedent, the majority opts to segment the encounter and task the district courts
13 with evaluating each utterance of the encounter. Further, the majority relies entirely
14 on Starr’s testimony to support its conclusions that the statements are
15 nontestimonial. I determine the plain language and format of the SANE examination
16 report alone, beginning with the Sexual Assault Intake form, to be sufficient as
17 evidence of a testimonial primary purpose of the examination.
18 {162} I strongly disagree with the majority’s conclusion that the record does not
19 demonstrate “significant” further involvement by law enforcement to support
95
1 Declarant’s claims. See maj. op. ¶ 80. Footage captured on the lapel videos and
2 recorded interviews with APD demonstrates that Declarant first learned of SANE
3 examinations from the officers, and the officers coordinated with Starr as to when
4 the examination would be finished. This footage, combined with Declarant’s signed
5 release of records to the APD is evidence a reasonable participant would have
6 understood the depth of APD’s involvement with the SANE examination and with
7 this case.
8 {163} I also determine that the majority’s logic is circular in evaluating the
9 relationship between a SANE’s role and the testimonial nature of the statements. See
10 id. ¶¶ 51, 83-93. The majority first establishes that statements that are made for the
11 purpose of medical care or treatment are nontestimonial. See id. ¶ 69. Then, the
12 majority says, a nontestimonial medical purpose informs Starr’s medical caregiving
13 role as a SANE. See id. ¶ 85. So, when Starr is acting as a medical provider, her
14 purpose when asking Declarant questions during the exam cannot be to collect
15 evidence for a forensic purpose. Since the statements Starr elicits as a medical
16 caregiver do not have a primary purpose of producing testimonial statements, the
17 reasoning goes, the statements are nontestimonial.
18 {164} Finally, while the majority asserts it is not equating its medical diagnosis
19 Confrontation Clause exception with the medical diagnosis or treatment exception
96
1 for hearsay, id. ¶¶ 44 n.5, 108-13, the result it reaches belies that assertion. Rule 11-
2 803(4) NMRA states, “A statement that (a) is made for—and is reasonably pertinent
3 to—medical diagnosis or treatment, and (b) describes medical history, past or
4 present symptoms, pain, or sensations, their inception, or their general cause,” is
5 “not excluded by the rule against hearsay.”
6 {165} In Mendez, we held that the “hearsay rule and the Confrontation Clause are
7 not co-extensive and must remain distinct” when conducting Sixth Amendment
8 testimonial analysis and considering the admissibility of statements. 2010-NMSC-
9 044, ¶ 28. While the majority acknowledges this rule, see maj. op. ¶ 44 n.5, the
10 majority proceeds to conclude that many of the statements made during the SANE
11 examination are nontestimonial because they “were within the scope of information
12 important to guide Starr’s provision of medical care.” See maj. op. ¶¶ 101-07. The
13 majority’s focus on the statements and whether they were important to guide Starr’s
14 “provision of medical care,” rather than a focus on the primary purpose of the entire
15 encounter, improperly meshes hearsay analysis under Rule 11-803(4) with
16 Confrontation Clause analysis. See maj. op. ¶¶ 102-11; see also Mendez, 2010-
17 NMSC-044, ¶ 21 (“[I]f a statement is pertinent to a medical condition, such that a
18 medical care provider reasonably relies upon it in arriving at a diagnosis or
19 treatment, the statement is deemed sufficiently reliable to overcome hearsay
97
1 concerns.”). Further, the majority supports its reasoning by citing Miller, 264 P.3d
2 at 487 (Kan. 2011), a case that erroneously applied our hearsay rules from Mendez,
3 2010-NMSC-004, ¶ 46, to its Confrontation Clause analysis, see maj. op. ¶ 45, and
4 by using the hearsay exception to evaluate a SANE’s dual role, see maj. op. ¶ 109.
5 The majority overly relies on the hearsay analysis of Rule 11-803(4) in Mendez in
6 direct contradiction of this Court’s precedent.
7 IV. CONCLUSION
8 {166} The Crawford Court described “‘testimonial’” statements as “‘solemn
9 declaration[s] or affirmation[s] made for the purpose of establishing or proving some
10 fact.’” 541 U.S. at 51 (quoting 2 N. Webster, An American Dictionary of the English
11 Language (1828)). While the Crawford Court specifically declined to provide a
12 comprehensive definition of testimonial, it created a nonexhaustive list of a “core
13 class of ‘testimonial’ statements” which trigger Confrontation Clause concerns. Id.14 This core class includes “pretrial statements that declarants would reasonably expect
15 to be used prosecutorially” and “statements that were made under circumstances
16 which would lead an objective witness reasonably to believe that the statement
17 would be available for use at a later trial.” Id. at 51-52.
18 {167} It is clear from the objective circumstances that the overarching primary
19 purpose of the SANE examination was to establish past facts potentially relevant to
98
1 Defendant’s criminal prosecution. The core characteristic of SANE examinations is
2 the collection and preservation of evidence irrespective of necessary medical
3 treatment. A sexual assault victim with no apparent injuries will undergo
4 examination and evidence collection procedures similar to those of a victim with
5 injuries. Compare State v. Ortega, 2008-NMCA-001, ¶ 25, 143 N.M. 261, 175 P.3d
6 929 (explaining that a child never received medical treatment during the SANE
7 examination), overruled on other grounds by Mendez, 2010-NMSC-044, ¶¶ 1, 40,
8 with Mendez, 2010-NMSC-044, ¶¶ 1-9 (describing the SANE examination of a child
9 who was bleeding vaginally following an alleged assault). SANEs are trained to
10 follow the same procedures for each patient—notwithstanding a patient reporting
11 the alleged assault to law enforcement. See SAEK Instructions, supra, at 2. 24 If a
12 patient does not file a police report at the time of the SAEK collection, the SAEK
13 will be stored as a “collected . . . but not reported” sexual assault kit which the patient
14 may eventually choose to report. See id.25
15 {168} The primary purpose of the SANE examination was to collect and preserve
16 statements and corroborating evidence for the purpose of proving Declarant’s claims
Available at http://www.ncdsv.org/images/SexAssaultEvidenceKit
24
Instructions.pdf (last visited July 1, 2022).
25
Id.
99
1 made to the police. The SANE examination report is therefore testimonial. Further,
2 it is the only evidence the State has to prove its case against Defendant, and
3 Defendant has never had an opportunity to confront and cross-examine Declarant
4 who is deceased. The Sixth Amendment prohibits this result. Since the majority
5 disagrees, I respectfully dissent.
6
7 MICHAEL E. VIGIL, Justice
100