United States v. Squire

UNITED STATES, Appellee
v.
Ted C. SQUIRE, Sergeant First Class
U.S. Army, Appellant
No. 13-0061
Crim. App. No. 20091106
United States Court of Appeals for the Armed Forces
Argued April 3, 2013
Decided June 13, 2013
ERDMANN, J., delivered the opinion of the court, in which BAKER,
C.J., STUCKY and RYAN, JJ., and COX, S.J., joined.
Counsel
For Appellant: William E. Cassara, Esq. (argued); Captain John
L. Schriver (on brief).
For Appellee: Captain Edward J. Whitford (argued); Lieutenant
Colonel Amber J. Roach and Major Catherine L. Brantley (on
brief); Major Robert A. Rodrigues and Captain Bradley M.
Endicott.
Military Judge: Donna M. Wright
This opinion is subject to revision before final publication.
United States v. Squire, No. 13-0061/AR
Judge ERDMANN delivered the opinion of the court.
Sergeant First Class Ted Squire was convicted at a general
court-martial with members, contrary to his pleas, of engaging
in a sexual act with a child who had not attained the age of
twelve years, in violation of Article 120, Uniform Code of
Military Justice, 10 U.S.C. § 920 (2006). 1 He was sentenced to
twenty years confinement and reduction to the grade of E-1. The
convening authority reduced the sentence of confinement to 238
months and otherwise approved the adjudged sentence. The United
States Army Court of Criminal Appeals (CCA) affirmed the
findings and sentence. United States v. Squire, No. ARMY
20091106, 2012 CCA LEXIS 306, 2012 WL 3602088 (A. Ct. Crim. App.
Aug. 17, 2012).
The Confrontation Clause bars admission of the testimonial
statements of a witness who did not appear at trial unless the
witness was unavailable to testify and the defendant had a prior
opportunity for cross-examination. Crawford v. Washington, 541
U.S. 36, 53–54 (2004). We granted review of this case to
determine whether statements made to two medical doctors by an
eight-year-old victim of a sexual assault were testimonial
1
Squire was initially charged with three violations of Article
120: Specification 1 -- engaging in a sexual act with a child
who had not attained the age of twelve; Specifications 2 and 3
-- engaging in lewd acts with a child who had not attained the
age of sixteen. Specifications 2 and 3 were withdrawn by the
Government prior to trial.
2
United States v. Squire, No. 13-0061/AR
hearsay. 2 We hold that the statements were not testimonial and
that their admission into evidence was proper. We therefore
affirm the Army Court of Criminal Appeals. 3
Background
In the fall of 2008, Squire was engaged to Sergeant First
Class (SFC) W and frequently spent the night at her home. SFC
W’s adult son and her eight-year-old daughter, SL, also lived
with her. Neither child had a biological relationship to
Squire. On the morning of September 16, 2008, SFC W left her
home at 6:00 a.m. to attend physical training (PT). Squire had
spent the previous night at SFC W’s home and when she left for
PT he was asleep on the living room couch wearing a football
jersey and shorts. SL was asleep in her upstairs bedroom.
Usually when SFC W went to morning PT she would return home
between 7:45 a.m. and 8:00 a.m., but that morning she was
released early and returned home at approximately 6:30 a.m.
Upon her return, SFC W encountered SL coming out of the master
bedroom wearing only a long t-shirt. SL had been wearing a t-
2
We granted review of the following issue:
Whether Appellant was denied his Sixth Amendment right
to confront his accuser when the military judge
permitted testimonial hearsay in the form of SL’s
statement to a physician.
United States v. Squire, 72 M.J. 29 (C.A.A.F. 2013) (order
granting review)
3
Squire’s motion to attach documents and his motion to conduct
appellate discovery are hereby denied.
3
United States v. Squire, No. 13-0061/AR
shirt, panties, and sleep pants when she went to bed the night
before. SFC W found Squire in the bed in the master bedroom,
but he was not wearing the shorts he had on when he had been
sleeping on the couch. SFC W later found Squire’s shorts in
SL’s bedroom, as well as SL’s pajama pants and underwear lying
on the bed. SFC W questioned SL about what had happened and SL
indicated that Squire had touched her vagina. After comforting
SL, SFC W sent her to school and confronted Squire, who denied
any inappropriate behavior.
Later that day, SFC W took SL to Tripler Family Practice
and informed them that there was a possibility that her daughter
had been molested. Tripler Family Practice referred SL to the
emergency room at Tripler Army Medical Center. Dr. Mary
Montgomery was the emergency room physician at Tripler that day.
Following her normal routine, Dr. Montgomery introduced herself
and took a patient history, which included asking SL why she was
there. SL told Dr. Montgomery that she had been hurt that day
when “Chris” 4 put his penis in her privates. Dr. Montgomery then
performed a head-to-toe physical examination of SL, including an
external genital examination. The examination did not disclose
any trauma to the external genitalia.
As there was “no evidence of bleeding and [SL] seemed
hemodynamically stable,” Dr. Montgomery determined that “at that
4
SGT W and her children referred to Squire as “Chris.”
4
United States v. Squire, No. 13-0061/AR
point it would be best for a pediatric patient to have an
internal genital exam done by someone who specializes in doing
those types of exam[s] for children.” Dr. Montgomery did not
possess that particular specialty and as an emergency room
physician, her primary purpose was to ensure SL was medically
stable and to take a medical history and perform a physical
exam, not to conduct a sex assault examination. Dr. Montgomery
referred SL to Kapiolani Medical Center for an internal genital
exam. Although Dr. Montgomery was aware throughout the course
of her examination “that there could be potential prosecution
down the road,” she testified that she acted “[m]ainly to do a
history and physical exam” and to “make sure the patient [was]
okay.”
When SFC W and SL arrived at the Kapiolani Medical Center
emergency room, SL was seen by the on-call physician at the
Kapiolani Child Protection Center. That night the on-call
physician was Dr. Philip Hyden, who was the medical director of
both the Kapiolani Child Protection Center and the Sex Abuse
Treatment Center, as well as an assistant professor of
pediatrics and an attending pediatrician at the Kapiolani
Medical Center. Like Dr. Montgomery, Dr. Hyden began by
introducing himself and by taking a patient history. During the
history, SL told Dr. Hyden that Squire “put his wee wee inside
me and it hurt.” Dr. Hyden understood that the information he
5
United States v. Squire, No. 13-0061/AR
gathered was “very likely [to be] provided to law enforcement
personnel” and that he was a “mandated reporter” under Hawaii
law. 5 However, he also testified that he had been trained to
begin every medical examination with a patient history and
therefore it was his routine to take a medical history for any
patient he saw.
After he took the history, Dr. Hyden conducted a physical
exam and took evidence for a rape kit which included SL’s
underwear and a vaginal swab. According to Dr. Hyden, the
swabbing was done to obtain cultures for medical diagnostic
purposes, but he was also aware that the cultures could be used
for DNA identification purposes. Upon completion of the
physical examination, Dr. Hyden prescribed antibiotics as a
precaution against sexually transmitted diseases and also
arranged for SL to attend counseling. There was no police
presence or involvement in either examination, though CID agents
did meet SFC W at the Kapiolani Medical Center after the
examination.
SL did not testify at trial and Squire challenged the
admission of SL’s statements to both doctors on Confrontation
Clause grounds. The military judge held an Article 39(a), UCMJ,
10 U.S.C. § 839(a) (2006), hearing and heard testimony from SFC
5
Haw. Rev. Stat. § 350-1.1 generally requires licensed medical
professionals to report suspected child abuse or neglect to the
Hawaii Department of Human Services or the police.
6
United States v. Squire, No. 13-0061/AR
W and both doctors. The military judge made an initial ruling
from the bench admitting the statements and later supplemented
that ruling with written findings of fact and conclusions of
law. At trial, Squire was convicted on the sole charge of
engaging in a sexual act with a child.
Squire subsequently appealed a number of issues to the CCA,
including the Confrontation Clause issue. 6 Squire, 2012 CCA
LEXIS 306, at *2 n.1, 2012 WL 3602088, at *1 n.1. In addressing
the Confrontation Clause issue, the CCA applied the factors we
set out in United States v. Rankin, 64 M.J. 348 (C.A.A.F. 2007),
and United States v. Gardinier, 65 M.J. 60 (C.A.A.F. 2007), to
determine whether SL’s statements to the doctors were
testimonial. Squire, 2012 CCA LEXIS 306, at *5-*15, 2012 WL
3602088, at *2-*5. The CCA concluded that SL’s statements to
Dr. Montgomery and Dr. Hyden were not testimonial and that their
admission did not violate the Confrontation Clause. Id.Discussion
Whether a statement is inadmissible testimonial hearsay
under Crawford is a question of law which we review de novo.
Gardinier, 65 M.J. at 65. The Supreme Court has not articulated
a comprehensive definition of “testimonial” statements, id., but
the analysis is fact specific, meaning that it is “contextual,
6
At the CCA, Squire assigned the following issues: the
Confrontation Clause issue; a challenge to the chain of custody
of the rape kit; an ineffective assistance of counsel claim; and
an allegation of improper release of detailed defense counsel.
7
United States v. Squire, No. 13-0061/AR
rather than subject to mathematical application of bright line
thresholds.” Rankin, 64 M.J. at 352. While “our goal is an
objective look at the totality of the circumstances surrounding
the statement,” Gardinier, 65 M.J. at 65, we have developed a
set of factors to assist us in determining whether a given
statement is testimonial. Those factors include whether: (1)
the statement was elicited by or made in response to law
enforcement or prosecutorial inquiry; (2) the statement involved
more than a routine and objective cataloging of unambiguous
factual matters; and (3) the primary purpose for making, or
eliciting, the statement was the production of evidence with an
eye toward trial. Id.; Rankin, 64 M.J. at 352. As we view the
Confrontation Clause issue involving Dr. Hyden as a closer
question than that involving Dr. Montgomery, we will first
address Dr. Hyden’s situation.
1. Dr. Hyden
Involvement of Law Enforcement
“[T]he ‘[i]nvolvement of government officers in the production
of testimony with an eye toward trial presents unique potential
for prosecutorial abuse.’” Rankin, 64 M.J. at 351 (second set
of brackets in original) (quoting Crawford, 541 U.S. at 56 n.7).
We have therefore determined that one relevant consideration in
examining Confrontation Clause issues is whether “the statement
8
United States v. Squire, No. 13-0061/AR
at issue [was] elicited by or made in response to law
enforcement or prosecutorial inquiry.” Id. at 352.
Squire argues that law enforcement was involved in Dr.
Hyden’s examination because: (1) Dr. Hyden was a mandatory
reporter of cases involving child sexual assault victims under
Hawaii state law; (2) during the examination Dr. Hyden completed
a form entitled “medical-legal record and sexual assault
information form” required by the State of Hawaii; and (3) he
had performed over 1,000 sexual assault examinations. Squire
essentially argues that, while there was no direct law
enforcement involvement in this case prior to or during the
examinations, Dr. Hyden’s medical specialty and experience, his
status as a mandatory reporter, and his completion of state
mandated forms while conducting the examination, resulted in a
de facto law enforcement involvement.
We disagree. The facts of this case differ sharply from
the facts of Gardinier, where we found the statement testimonial
in part because of police involvement. 65 M.J. at 66. There,
the examination by a sexual assault nurse examiner (SANE)
occurred several days after the initial medical examination and
was arranged and paid for by the sheriff’s office. Id. We
concluded that the victim’s statements were clearly the result
of an inquiry initiated by law enforcement and we held that the
victim’s statement was testimonial. Id. Here, the connection
9
United States v. Squire, No. 13-0061/AR
to law enforcement is the general requirement that Dr. Hyden, as
a mandatory reporter under Hawaii law, must report and document
possible sexual abuse of children after conducting a forensic
examination. We do not believe that this general requirement,
which broadly covers health care professionals, employees of
public and private schools, child care providers, and providers
of recreational and sports activities, Haw. Rev. Stat. § 350-
1.1(a)(1-7), is alone sufficient to establish that Dr. Hyden was
acting in a law enforcement capacity. Without more, we decline
to “deputize [the] litany of [mandatory reporting] professionals
. . . into law enforcement.” State v. Spencer, 169 P.3d 384,
389 (Mont. 2007); see also United States v. DeLeon, 678 F.3d
317, 324 (4th Cir. 2012); United States v. Peneaux, 432 F.3d
882, 895 (8th Cir. 2005); Seely v. State, 282 S.W.3d 778, 788
(Ark. 2008). 7
Routine/Objective Cataloging
The fact that statements are a routine, objective
cataloging of unambiguous factual matters is a relevant
7
This is not to say that a medical professional can never act
with a law enforcement purpose, but to prevail in such cases
there must be a showing of something more than the fact that the
doctor is an expert in the field with a statutory obligation to
report suspected child abuse. See People v. Stechly, 870 N.E.
2d 333, 366 (Ill. 2007) (“We are not holding that every mandated
reporter acts as an agent of law enforcement in every interview,
but merely that [the nurse’s and social worker’s] status as
mandated reporters supports our conclusion in this case based on
the fact that their actions appear to have had no other purpose
than to obtain information to pass on to the authorities.”).
10
United States v. Squire, No. 13-0061/AR
consideration in determining whether statements are testimonial.
Rankin, 64 M.J. at 352. The CCA noted that although SL’s
statement may have involved “more than a routine and objective
cataloging of unambiguous factual matters” it would focus on the
first and third factors as the second factor “‘ha[d] little
import in the factual scenario presently before us.’” Squire,
2012 CCA LEXIS 306, at *7 n.3 2012 WL 3602088, at *3 n.3
(alteration in original) (quoting United States v. Russell, 66
M.J. at 597, 604 n.3. (A. Ct. Crim. App. 2008)).
We did not intend for the Rankin/Gardinier factors to
create a rigid set of criteria for determining whether a
statement was testimonial, but rather provided them as examples
of what an appellate court could consider in conducting an
“objective look at the totality of the circumstances surrounding
the statement[s].” Gardinier, 65 M.J. at 65. Indeed, if the
phrase “unambiguous factual matters” were narrowly construed to
mean uncontroverted facts, such as machine-generated data, see
generally United States v. Blazier, 69 M.J. 218, 224 (C.A.A.F.
2010) (“machine-generated data and printouts . . . not
‘testimonial’”), then the second factor would not be
particularly helpful in cases where a statement of medical
history was made to a medical provider. Regardless of how this
factor is characterized, however, an inquiry into the general
nature of the statement at issue can be helpful to our analysis.
11
United States v. Squire, No. 13-0061/AR
Here, the record does not indicate that Dr. Hyden either
prompted or led SL in his questioning. He asked her what had
happened and she responded with a factual response of the
incident. 8 We consider those facts relevant as a part of our
broader examination of the totality of the circumstances in this
case.
Primary Purpose
We have also recognized, with the third Rankin/Gardinier
factor, that the statement’s “primary purpose” may have a
bearing on whether or not it is testimonial within the meaning
of Crawford. Rankin, 64 M.J. at 352. Although the Supreme
Court has generally only addressed “ongoing emergencies” as a
factual predicate for finding that the “primary purpose” of the
statement was not law enforcement related, it also has
recognized that “there may be other circumstances, aside from
ongoing emergencies, when a statement is not procured with a
primary purpose of creating an out-of-court substitute for trial
testimony.” Michigan v. Bryant, 131 S. Ct. 1143, 1155 (2011). 9
8
Dr. Hyden testified that SL told him that after Squire removed
his pants and lay down next to her and asked her to remove her
underclothes, “he put his wee wee inside me and it hurt. I told
him no and pushed him away.”
9
The Supreme Court has also expressed support for the idea, in
dicta, that those purposes include statements for the purpose of
medical diagnosis or treatment. Bryant, 131 S. Ct. at 1157 n.9
(evidence admitted under the hearsay exception for statements
for purposes of medical diagnosis or treatment does not
implicate confrontation concerns); Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 312 n.2 (2009) (“[M]edical reports
12
United States v. Squire, No. 13-0061/AR
Squire asks us to look past the medical aspects of Dr.
Hyden’s questions when he took SL’s patient history and urges us
to conclude that the primary purpose of the questioning was to
gather evidence relevant to a later trial. In contrast, the
Government argues that the primary purpose of the questioning
was to assist in the medical treatment of SL.
When a medical provider provides treatment to the victim of
a criminal offense, statements solicited by the medical provider
may be primarily for medical treatment purposes, or, at the
other end of the spectrum, they may be primarily for law
enforcement purposes. Under many circumstances, however, the
examination will have both a medical treatment and a law
enforcement purpose. As the Supreme Court has noted,
participants with “dual responsibilities may mean that they act
with different motives simultaneously or in quick succession.”
Bryant, 131 S. Ct. at 1161. Here, however, the facts support
the conclusion that the medical history was taken primarily for
the purpose of providing medical treatment.
In evaluating the primary purpose, the law “requires a
combined inquiry that accounts for both the declarant and the
created for treatment purposes . . . would not be testimonial
under our decision today.”); Giles v. California, 554 U.S. 353,
376 (2008) (“Statements to friends and neighbors about abuse and
intimidation and statements to physicians in the course of
receiving treatment would be excluded, if at all, only by
hearsay rules.”).
13
United States v. Squire, No. 13-0061/AR
interrogator.” Id. at 1160. 10 SL was referred to Dr. Hyden by
Dr. Montgomery for a specific medical reason -- neither Dr.
Montgomery nor anyone available at the Tripler Army Medical
Hospital had the medical expertise to perform a pediatric
internal genital examination. Dr. Hyden testified that he was
trained to always take a medical history at the outset of any
medical examination and his purpose in this case was to “take[]
a medical history as a pediatrician which I would do for any
patient I see before I perform a physical exam.” The history
was ultimately medically significant to his conclusion that
there had been physical penetration of the vagina and that it
was necessary to administer preventative antibiotics to treat
any possible sexually transmitted diseases. Additionally,
evaluating the exchange from the perspective of the declarant, 11
we are confident that a reasonable victim of SL’s age, under
these circumstances, would not understand the purpose of her
10
Nevertheless, “[t]he inquiry is still objective because it
focuses on the understanding and purpose of a reasonable victim
in the circumstances of the actual victim.” Bryant, 131 S. Ct.
at 1161-63.
11
One formulation of “testimonial” statements is “statements
that were made under circumstances which would lead an objective
witness reasonably to believe that the statement would be
available for use at a later trial.” Crawford, 541 U.S. at 51–
52 (citation and internal quotation marks omitted). In
Gardinier, we noted that this formulation “offer[ed] a useful
baseline to begin analysis of the testimonial quality of
[statements made by a purported child victim to a SANE],” and
applied the considerations set forth in Rankin to determine that
the purported child victim’s statements were testimonial under
the circumstances. 65 M.J. at 65-66.
14
United States v. Squire, No. 13-0061/AR
statements as creating “an out-of-court substitute for trial
testimony.” Bryant, 131 S. Ct. at 1155.
Squire points to the fact that Dr. Hyden was aware that the
results of his examination were likely to be used in a
subsequent criminal prosecution, but that knowledge alone does
not transform what would otherwise be a statement for the
purpose of medical treatment into a testimonial statement. 12
Conclusion: Dr. Hyden
There was neither direct law enforcement involvement in Dr.
Hyden’s examination, nor was Dr. Hyden acting as a de facto law
enforcement officer. Although Dr. Hyden was aware of the
possible law enforcement related consequences of his
examination, under the facts established on the record in this
case he acted primarily for a medical purpose while taking SL’s
medical history. Therefore, under the “totality of the
12
Before SFC W and SL saw Dr. Hyden at the hospital, a crisis
therapist obtained SFC W’s signature on a form consenting to the
examination, the collection of evidence, and the release of the
results of the examination to law enforcement. While Dr. Hyden
was aware of this form, he testified that his purpose for taking
the patient history was to “ascertain what’s wrong with the
child, what the chief complaint is, what I can do about it.”
The consent/authorization form signed by SFC W is only indirect
evidence of the purpose of the conversation between Dr. Hyden
and SL, and where Appellant fails to establish that Dr. Hyden
was serving either at the behest of law enforcement or as a de
facto law enforcement officer, the form alone does not establish
that the intent of the examination was to create an out-of-court
substitute for in-court testimony rather than to facilitate the
medical treatment of SL.
15
United States v. Squire, No. 13-0061/AR
circumstances surrounding the statement,” we conclude that SL’s
statements to Dr. Hyden were not “testimonial.” 13
2. Dr. Montgomery
Under the Rankin/Gardinier analysis, SL’s statements to Dr.
Montgomery were not testimonial. SFC W brought SL to Tripler
Family Practice on her own volition, without having been advised
by or even seeking to contact law enforcement personnel. Dr.
Montgomery was an emergency room physician who did not conduct a
forensic examination. In taking the patient history, Dr.
Montgomery’s questions to SL were narrow in scope, fact
oriented, and limited to addressing SL’s emergency medical
condition and its causes. Finally, the primary purpose of the
statements was to facilitate medical treatment for a possible
sexual assault.
Conclusion
SL’s statements to both doctors were not testimonial and
therefore Squire did not have a constitutional right to confront
her prior to the admission of those statements. The decision of
the United States Army Court of Criminal Appeals is affirmed.
13
We do not hold today that any statement made to a doctor or
medical professional in the context of a medical examination is
per se for the primary purpose of medical treatment, or that all
such statements are inherently nontestimonial. That holding
would conflict with both our analysis and result in Gardinier.
As we have already emphasized, the analysis of statements in
Confrontation Clause cases is inherently fact specific and every
case must be decided, in context, on its own facts.
16