State v. Jeffrey Moten

Supreme Court
No. 2008-51-C.A.
(P2/05-1037CR)
State :
v. :
Jeffrey Moten. :
NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island, 250
Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2008-51-C.A.
(P2/05-1037CR)
Concurring and dissenting
Opinion begins on Page 18
State :
v. :
Jeffrey Moten. :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Justice Robinson, for the Court. On December 5, 2006, a Providence County Family
Court jury found the defendant, Jeffrey Moten, guilty of first degree child abuse for inflicting
serious bodily injury on his infant daughter, Nashya Moten. On May 10, 2007, the trial justice
sentenced the defendant to twenty years, with eighteen years to serve and two years suspended
with probation, along with one hundred hours of community service.
On appeal, defendant contends that his right to confrontation under both the United States
and Rhode Island constitutions was violated when the trial justice allowed a pediatrician to
testify regarding out-of-court statements made by a colleague of hers—an ophthalmologist who
performed a retinal exam on the injured infant. For the reasons set forth in this opinion, we
affirm the judgment of conviction.
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I
Facts and Travel
The state charged defendant with one felony count pursuant to G.L. 1956 § 11-9-
5.3(b)(1) in connection with injuries suffered by Nashya on November 23, 2005.1 The just-cited
statute provides that a person is guilty of first degree child abuse ―[w]henever a person having
care of a child * * * knowingly or intentionally * * * [i]nflicts upon [that] child serious bodily
injury.‖ Id. The statute then defines ―serious bodily injury‖ as being, inter alia, ―physical injury
that * * * [e]vidences subdural hematoma, intercranial hemorrhage and/or retinal hemorrhages as
signs of ‗shaken baby syndrome‘ and/or ‗abusive head trauma.‘‖ Section 11-9-5.3(c)(4).
The defendant‘s jury trial began on November 30, 2006 in the Family Court.2 The
prosecution called four witnesses during its case-in-chief: (1) Amie Costa (Nashya‘s mother); (2)
Detective Arthur Lee (the investigating officer from the Youth Services Bureau of the
Providence Police Department); (3) Dr. Nancy Harper (the pediatrician who treated Nashya‘s
injuries); and (4) Detective Paul Renzi (an officer in the Providence Police Department who
investigated Ms. Costa‘s apartment on the night of the incident). During his testimony, Det. Lee
also read into evidence two statements given by defendant to the police during the investigation.
1
For the sake of brevity, we shall hereinafter generally refer to what occurred on
November 23, 2005 simply as ―the incident.‖
2
The defendant was charged with child abuse under G.L. 1956 § 11-9-5.3 by criminal
information on March 6, 2006. At that time, § 11-9-9 provided the Family Court with exclusive
original jurisdiction over all offenses set forth in § 11-9-5.3. We note that, on July 3, 2006, the
General Assembly enacted two public laws (viz., P.L. 2006, ch. 260, § 1 and P.L. 2006, ch. 290,
§ 1) which transferred jurisdiction of child abuse cases to Superior Court. However, since we
have recognized that the prior version of the law applied to criminal defendants who were
charged by information prior to July 3, 2006, defendant was properly tried in Family Court. See
generally State v. Jennings, 944 A.2d 171 (R.I. 2008).
-2-
The defendant stipulated that the statements, taken on November 24 and December 2, 2005, were
―freely and voluntarily taken and given by the Defendant and executed at the Providence Police
Station.‖ Finally, the prosecution read into evidence a stipulated statement from Christopher
Hereth—a friend of defendant who stated that he had visited defendant on the afternoon of the
incident.
As the trial justice noted in the course of denying defendant‘s motion for judgment of
acquittal, the trial involved ―very little disputed testimony‖; he added that the testimony ―which
may [have been] characterized as [disputed3 was], frankly, somewhat minor.‖ Since defendant‘s
sole contention on appeal deals with a narrow issue regarding a portion of Dr. Harper‘s
testimony, we shall provide the reader with an abbreviated rendition of the testimony as relayed
by the witnesses and stipulated statements.
Nashya Moten was born on June 30, 2005 to Ms. Costa and defendant. The events that
led to the criminal charge in this case occurred on November 23 of that same year. On that day,
Nashya was just shy of being five months old. At the time, defendant, Ms. Costa, Nashya, and
three dogs lived in a rented apartment in Providence. On the morning of November 23, Ms.
Costa left Nashya at the apartment in defendant‘s care when she departed for work. Ms. Costa
testified that, before she left the apartment, Nashya was ―just cooing noises, looking at [her],
smiling at [her]‖; that Nashya‘s ―eyes were fine‖; and that Nashya was responsive to sounds.
Ms. Costa returned from work between 3:30 and 3:45 that afternoon. When she arrived
at the apartment, she heard Nashya making what she described at trial as a ―weird scream/cry.‖
She picked up her daughter and ―noticed that [Nashya‘s] eyes were stuck in the [upper right]
corner of her head not moving, not following any verbal sounds.‖ Nashya also did not respond
3
In actuality, the word ―undisputed‖ appears at this point in the transcript. It is clear from
the context, however, that ―disputed‖ is what was meant.
-3-
to visual prompts. Ms. Costa further testified that her daughter was ―just kind of lifeless.‖ She
stated that Nashya ―didn‘t really say anything or do anything.‖ Ms. Costa added that Nashya
―just was doing that weird scream/cry.‖ The mother proceeded to call Nashya‘s pediatrician,
who recommended that she take Nashya to the hospital immediately. Ms. Costa then drove her
daughter to Hasbro Children‘s Hospital.
In a statement given to the police at 12:40 a.m. on November 24, defendant confirmed
that he was babysitting Nashya when Ms. Costa left for work the previous morning. He stated
that he and Nashya eventually took a nap together after Ms. Costa left. He added that, after
sleeping for about two hours, he woke up with a stomachache and had to use the bathroom. He
stated that, while he was in the bathroom, he ―heard the dogs moving around,‖ and that he ―told
them to go lay down.‖ He added that he then ―heard [his] daughter fall down out of bed, and she
screamed like [he had] never heard her scream before.‖ The defendant told the police that he
―ran to her‖ and ―picked her up right away‖ in order to check on her condition; he said that
Nashya did not have any bruises or marks, nor was she bleeding. He stated that he then ―beat the
dogs because [he] thought they knocked [Nashya] off of the bed.‖ According to defendant‘s
statement, this all happened ―20 minutes before [Ms. Costa] came home.‖ At trial, Ms. Costa
also testified that, when she came home from work, defendant ―told [her] that the dogs did it.‖
Doctor Harper’s Testimony
Doctor Nancy Harper testified at trial as both a fact witness and as an expert witness in
the field of child pediatrics and child abuse pediatrics.4
4
Doctor Harper‘s testimony was not limited to the facts described in this section. For
example, she provided extensive testimony regarding the diagnoses, symptoms, and causes of
various conditions that can affect the brains of children. However, since most of her testimony is
not relevant to the narrow issue presented on appeal, our rendition of Dr. Harper‘s testimony is
limited.
-4-
Doctor Harper stated that she was a board-certified pediatrician and a fellow in the Child
Protection Program at Rhode Island Hospital. Doctor Harper was on call on November 23, 2005.
That night, she received a call from a resident in the emergency room who told her that she was
―very worried‖ about an infant at the hospital (Nashya) whose ―eyes were straight upwards and
not moving.‖ The resident also stated that Nashya was ―lethargic‖ and seemed to be suffering
from ―seizures and a headache.‖ Doctor Harper then went to the hospital, arriving at the
emergency room at approximately 6 p.m.
When Dr. Harper arrived, she discussed Nashya‘s condition with an emergency room
resident. She then reviewed Nashya‘s CAT scan, consulted with a pediatric radiologist,
examined the baby, and spoke with Ms. Costa. Doctor Harper became ―quite concerned‖ when
she reviewed the images from Nashya‘s CAT scan, which showed ―too much fluid around the
brain, which is concerning for subdural hemorrhages.‖ Additionally, Dr. Harper testified that
there appeared to be ―new blood‖ around the brain.
When interviewing Ms. Costa, Dr. Harper became concerned after Ms. Costa reported
that ―the baby wasn‘t acting normally and not following with the eyes‖ when Ms. Costa came
home from work. Doctor Harper stated that Nashya ―showed signs of injury to her brain‖ and
that these injuries were ―potentially life threatening‖ and ―were just not consistent with an
accidental injury.‖ Doctor Harper testified that, because she was a mandatory reporter of child
abuse and neglect,5 she contacted the Department of Children, Youth and Families that evening
to report the incident.
5
General Laws 1956 § 40-11-6(a) provides that ―[w]hen any physician * * * has cause to
suspect that a child brought to him or her or coming to him or her for examination, care, or
treatment, is an abused or neglected child * * * he or she shall report the incident or cause a
report thereof to be made to the [Department of Children, Youth and Families].‖
-5-
Doctor Harper indicated that, in the course of her treatment, she spoke ―with physicians
* * * to recommend other tests that need[ed] to be done.‖ One of the physicians contacted by
Dr. Harper was an ―ophthalmology doctor on call,‖ whom she asked ―to come and examine
[Nashya‘s] eyes for [Dr. Harper].‖ Doctor Harper testified that she could not recall the
ophthalmologist‘s name, but knew that he was ―a resident on duty.‖ The ophthalmologist arrived
at ―9 or 10 p.m.‖ and performed a ―dilated eye exam.‖ Doctor Harper explained:
―Pediatricians and other physicians are trained to look at the back
of the eyes. But, of course, we are not the experts, which is why
ophthalmology is contacted. He put drops in her eyes to dilate the
pupils so they can see the back of the eye; and they use a special
lens and magnification system so they can look at the retina at the
back of the eye. He completed the evaluation and came and talked
with me and reported to me that she had * * *.‖
At this point during Dr. Harper‘s testimony, defense counsel interrupted her answer by
saying ―Objection‖—a challenge that the trial justice immediately sustained without any
discussion. The prosecutor then continued questioning Dr. Harper as follows:
―Q: Did you have a conversation with this ophthalmologist as to
his observations of the results of this exam?
―A: Of course, just like talking with the radiologist, we review all
of the tests that are performed on the children.
―Q: And did you—strike that. In other cases, you‘ve reviewed eye
exams with ophthalmologists, correct?
―A: That is correct.
―Q: And do you need this information for a complete assessment
of Nashya?
―A: Yes.
―Q: And did you need it to further your information for the
treatment of Nashya, as well as the diagnosis?
―A: Yes.
―Q: And what did he tell you.
-6-
―DEFENDANT‘S ATTORNEY: Objection.
―THE COURT: Overruled. You may answer.‖
Doctor Harper then testified that the ophthalmologist told her ―that Nashya had extensive
retinal hemorrhages that covered the entire back of the eye.‖ The ophthalmologist also told Dr.
Harper that Nashya had ―a large hemorrhage which was obscuring or covering the macular in her
right eye,‖ which is ―the area where you get your best vision.‖
Doctor Harper testified that the same exam was repeated the next morning and on several
other occasions ―in the weeks and months to come‖ for the following reason:
―[O]nce you have hemorrhages in the eye, it can keep you from
seeing well. And if you can‘t see well, and when you‘re young
and trying to develop your vision, it can cause permanent
difficulties * * *. You may even go blind. So, there are grave
concerns once you see these injuries to the back of the eye. You
have to follow them closely and to make sure that she sees clearly
and to make sure that the baby doesn‘t need surgery on the eye.
It‘s a concerning point.‖
Doctor Harper went on to provide more details about Nashya‘s treatment and condition,
which was ―consistent with abusive head trauma.‖ She stated that there was ―no medical,
organic or other [etiology] for her injuries other than inflicted injury.‖ Doctor Harper testified
that Nashya‘s injuries ―[were] not consistent with a fall from a bed,‖ that they ―could not have
been caused from the dogs,‖ and that they were ―not consistent with an accidental injury.‖
On December 5, 2006, the jury found that defendant was guilty of first degree child abuse
under § 11-9-5.3(b)(1). The defendant then filed a motion for a new trial, which the trial justice
denied on December 18, 2006. On May 10, 2007, the trial justice sentenced defendant to twenty
years, with eighteen years to serve and two years suspended with probation, along with one
hundred hours of community service. The defendant filed a timely notice of appeal.
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II
Issue on Appeal
On appeal, defendant contends that his constitutional right of confrontation was violated
during Dr. Harper‘s testimony. Specifically, defendant argues that the statements made by the
ophthalmologist to Dr. Harper regarding Nashya‘s retinal hemorrhaging6 were ―testimonial
evidence‖ under Crawford v. Washington, 541 U.S. 36 (2004). In his brief to this Court,
defendant (quoting Davis v. Washington, 547 U.S. 813, 822 (2006)) maintains that the
ophthalmologist made these statements with the ―primary purpose of ‗establish[ing] or prov[ing]
past events potentially relevant to later criminal prosecution.‘‖ The defendant contends that,
given the testimonial nature of the statements, Dr. Harper should not have been allowed to testify
about the ophthalmologist‘s diagnosis because defendant did not have an opportunity to cross-
examine the ophthalmologist.
III
Standard of Review
When a criminal defendant claims on appeal that the introduction of certain evidence
violated his constitutional rights of confrontation and cross-examination, we review such an
evidentiary ruling in a de novo manner. State v. Lopez, 943 A.2d 1035, 1041 (R.I. 2008); see
also State v. Barkmeyer, 949 A.2d 984, 1002 (R.I. 2008) (―This Court reviews de novo a party‘s
allegation that a constitutional right has been infringed.‖); State v. Quinlan, 921 A.2d 96, 106
6
Under the General Laws, ―retinal hemorrhages‖ are evidence of ―‗shaken baby
syndrome‘ and/or ‗abusive head trauma‘‖—conditions that can provide the basis for a first
degree child abuse charge. See G.L. 1956 § 11-9-5.3.
-8-
(R.I. 2007) (―[I]n determining whether a defendant‘s constitutional rights have been violated,
this Court undertakes de novo review.‖).
IV
Analysis
The Sixth Amendment to the United States Constitution and article 1, section 10, of the
Rhode Island Constitution ―guarantee individuals accused of criminal charges the right to
confront and cross-examine any adverse witnesses who testify against them.‖ State v. Albanese,
970 A.2d 1215, 1222 (R.I. 2009) (internal quotation marks omitted). The defendant‘s sole
contention on appeal is that he was deprived of his constitutional right of confrontation.
Specifically, he argues that the trial justice should not have allowed Dr. Harper to testify about
statements made by the ophthalmologist who treated Nashya on the night of the incident because
defendant did not have an opportunity to cross-examine that ophthalmologist. It is our opinion,
however, that defendant failed to preserve the right of confrontation issue for appellate review.
This Court has long adhered to the ―raise or waive‖ rule, pursuant to which ―an issue that
has not been raised and articulated previously at trial is not properly preserved for appellate
review.‖ See State v. Gomez, 848 A.2d 221, 237 (R.I. 2004) (internal quotation marks omitted);
see also State v. Figuereo, 31 A.3d 1283, 1289 (R.I. 2011) (recognizing that this Court ―will not
review issues that were not presented to the trial court in such a posture as to alert the trial justice
to the question being raised‖ (internal quotation marks omitted)). We ―staunchly adhere[]‖ to
this procedural principle. Figuereo, 31 A.3d at 1289. The rule is not ―some sort of artificial or
arbitrary Kafkaesque hurdle.‖ DeMarco v. Travelers Insurance Co., 26 A.3d 585, 628 n.55 (R.I.
2011). Instead, the rule serves as an ―important guarantor of fairness and efficiency in the
judicial process.‖ Id.-9-
In the context of challenging evidence offered at trial, we have repeatedly cautioned that
―a general objection is not sufficient to preserve an issue for appellate review; rather,
assignments of error must be set forth with sufficient particularity to call the trial justice‘s
attention to the basis of the objection.‖ Union Station Associates v. Rossi, 862 A.2d 185, 192
(R.I. 2004) (emphasis added); see also State v. Diefenderfer, 970 A.2d 12, 30 (R.I. 2009)
(―When we * * * consider defense counsel‘s quite unspecific utterances[,] * * * it is clear that
the issue that defendant seeks to raise on appeal * * * has not been preserved.‖); State v.
Feliciano, 901 A.2d 631, 646 (R.I. 2006) (―Our case law states with abundant clarity that issues
that were not preserved by a specific objection at trial, sufficiently focused so as to call the trial
justice‘s attention to the basis for said objection, may not be considered on appeal.‖ (emphasis
added) (internal quotation marks omitted)).
The defendant contends that his argument regarding the right of confrontation was
preserved when defense counsel said ―Objection‖ as Dr. Harper was about to testify regarding
what the ophthalmologist had told her. Defense counsel uttered that word twice—on the first
occasion, the objection was sustained; the second time, it was overruled. In neither instance,
however, did defense counsel articulate the basis for his objection. Based on our well-settled
―raise or waive‖ rule, an objection without explanation is insufficient to preserve an issue on
appeal. See Feliciano, 901 A.2d at 646 (―General objections to the admissibility of evidence,
when the context does not supply the specific ground for the objection, are thus insufficient to
preserve the issue.‖).
The defendant attempts to save his insufficient objection for appellate review by
contending that ―it was clear that counsel was objecting to his inability to confront the doctor.‖
In our view, however, it is equally—if not more—plausible that the prosecutor and the trial
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justice understood defendant‘s objection to be on hearsay grounds.7 See State v. Vieira, 38 A.3d
18, 25 (R.I. 2012) (rejecting appellant‘s argument that the grounds for an unspecified objection
were ―clear from the context‖ and holding that an argument was waived where counsel ―failed
* * * to articulate any basis whatsoever for her objection‖ (internal quotation marks omitted)).
When defendant objected, Dr. Harper was about to testify regarding what the ophthalmologist
had told her on the night of the incident.8 At an earlier point in Dr. Harper‘s testimony,
defendant objected during a similar line of questioning when the prosecutor asked Dr. Harper
about information she had learned from another emergency room resident. When defendant
objected in that instance, the trial justice held a sidebar conference during which there was a
colloquy regarding Rule 803(4) of the Rhode Island Rules of Evidence—which sets forth the
exception to the hearsay rule for ―[s]tatements made for purposes of medical diagnosis or
treatment.‖ It would have been entirely reasonable for the trial justice to have inferred that
defense counsel had the same objection in mind when Dr. Harper was about to testify in a similar
fashion regarding her conversation with the ophthalmologist.
The foundation laid by the prosecutor in between defendant‘s two bare objections also
strongly suggests that the state was again seeking to avail itself of the hearsay exception set forth
7
A hearsay objection is not equivalent to an objection based on the constitutional right to
confront a witness. See, e.g., United States v. Cabrera-Beltran, 660 F.3d 742, 751 (4th Cir.
2011) (―The hearsay objection at trial cannot be understood to include a Confrontation Clause
objection.‖); United States v. Arbolaez, 450 F.3d 1283, 1291 n.8 (11th Cir. 2006) (―A hearsay
objection to testimony at trial, standing alone, does not preserve a constitutional challenge under
the Confrontation Clause for appeal.‖); United States v. Dukagjini, 326 F.3d 45, 60 (2d Cir.
2003) (noting that ―a hearsay objection would not in itself preserve a Confrontation Clause
claim‖).
8
The question that led to the second objection reads as follows:
―Q: And what did [the ophthalmologist] tell you.
―DEFENDANT‘S ATTORNEY: Objection.
―THE COURT: Overruled.‖
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in Rule 803(4). After defendant‘s initial successful objection to the testimony regarding the
ophthalmologist‘s findings, the prosecutor then asked Dr. Harper if the information provided by
the ophthalmologist was necessary ―for the treatment of Nashya, as well as the diagnosis.‖
(Emphasis added.) Doctor Harper replied, ―Yes.‖ After this clarification, the prosecutor again
asked Dr. Harper about her conversation with the ophthalmologist. The defendant again
objected, but this time the trial justice allowed Dr. Harper to answer. The just-summarized
evidentiary foundation laid by the prosecutor tracked the hearsay exception found in Rule 803(4)
(creating a hearsay exception for ―[s]tatements made for purposes of medical diagnosis or
treatment‖ (emphasis added)). The defendant could have clarified his objection by articulating a
right to confrontation argument, but he did not do so.
While it may be possible that defense counsel had the Confrontation Clause in mind, he
made no reference to the same. Further, the foundation laid by the prosecutor shows that it is
likely that both the prosecutor and the trial justice understood his objections to be on hearsay
grounds. Ultimately, however, any journey into the mind of defense counsel, the prosecutor, or
the trial justice amounts to speculation; it is a fruitless effort that brings to the fore the very
purpose of the ―raise or waive‖ rule. We shall never know precisely why defendant objected to
the line of questioning because he never articulated a reason to the court. See Tinney v. Tinney,
770 A.2d 420, 433 (R.I. 2001) (noting that a party may not ―raise an issue * * * on appeal that
was not adequately raised below by presuming now the basis for the evidence‘s admission and
tailoring his objection to that presumed basis‖). The defendant failed to adequately raise his
constitutional argument at trial.
Our inquiry, however, is not over. We have recognized a ―narrow exception‖ to the
―raise or waive‖ rule. State v. Dennis, 29 A.3d 445, 449–50 (R.I. 2011). For the exception to
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apply, ―the alleged error must be more than harmless, and the exception must implicate an issue
of constitutional dimension derived from a novel rule of law that could not reasonably have been
known to counsel at the time of trial.‖ State v. Breen, 767 A.2d 50, 57 (R.I. 2001); see also State
v. Burke, 522 A.2d 725, 731 (R.I. 1987) (―[W]hen an intervening decision of this [C]ourt or of
the Supreme Court of the United States establishes a novel constitutional doctrine, counsel‘s
failure to raise the issue at trial will not preclude our review.‖). We hold that this narrow
exception may not be invoked in this case because defendant‘s argument was not novel at the
time Dr. Harper testified.
On March 8, 2004, the Supreme Court of the United States issued its decision in
Crawford v. Washington, 541 U.S. 36 (2004). The Crawford opinion abrogated the rule
announced in Ohio v. Roberts, 448 U.S. 56 (1980), which was the decision that previously
provided the analytical framework for the Sixth Amendment right to confrontation. The Roberts
Court had stated that ―an unavailable witness‘s out-of-court statement may be admitted so long
as it has adequate indicia of reliability—i.e., falls within a ‗firmly rooted hearsay exception‘ or
bears ‗particularized guarantees of trustworthiness.‘‖ See Crawford 541 U.S. at 42 (quoting
Roberts, 448 U.S. at 66). After reviewing the historical underpinnings of the Confrontation
Clause, Justice Scalia, writing for the majority in Crawford, described the Roberts rule as a
―framework * * * so unpredictable that it fails to provide meaningful protection from even core
confrontation violations.‖ Id. at 63.
The Court in Crawford recognized that the Roberts rule ―replac[ed] categorical
constitutional guarantees with open-ended balancing tests,‖ which would ―do violence to their
design.‖ Crawford, 541 U.S. at 67–68. In order to maintain the integrity of the Sixth
Amendment‘s guarantee, Crawford adopted a new analytical approach to be employed with
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respect to evidentiary challenges based upon the Confrontation Clause: ―Where testimonial
evidence is at issue, * * * the Sixth Amendment demands what the common law required:
unavailability and a prior opportunity for cross-examination.‖ Crawford, 541 U.S. at 68. The
Court recognized that its decision did not ―articulate a comprehensive definition‖ of
―testimonial.‖ Id. at 68 n.10. It did, however, recognize a ―core class‖ of testimonial statements.
Id. at 51–52.
The Supreme Court has stated that ―Crawford announced a new rule‖ of constitutional
law. Whorton v. Bockting, 549 U.S. 406, 416 (2007); cf. State v. Harris, 871 A.2d 341, 345 n.12
(R.I. 2005) (noting that ―Crawford probably constitutes a novel issue of law‖). However,
defendant does not contend that the Crawford decision constitutes the sort of ―novel rule‖
pursuant to which the narrow exception to the ―raise or waive‖ rule may be invoked. Nor could
he; Crawford was decided on March 8, 2004—more than two-and-a-half years before Dr. Harper
gave her testimony.
Instead, defendant argues that two cases decided after Crawford—viz., Melendez-Diaz v.
Massachusetts, 557 U.S. 305 (2009) and Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011)—
serve as ―intervening decision[s] * * * of the Supreme Court of the United States [that]
establish[] a novel constitutional doctrine * * *.‖ See Burke, 522 A.2d at 731. In Melendez-
Diaz, a defendant charged with a drug offense challenged affidavits provided by analysts at a
state laboratory. The affidavits included forensic analysis, and they stated that the substance
seized by the police in connection with the defendant‘s alleged crime was cocaine. The Supreme
Court held that the affidavits were examples of ―testimonial evidence‖ under Crawford,
recognizing that the sworn statements were ―made under circumstances which would lead an
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objective witness reasonably to believe that the statement would be available for use at a later
trial.‖ Melendez-Diaz, 557 U.S. at 311 (quoting Crawford, 541 U.S. at 52).
Bullcoming involved a similar situation. In that case, the defendant was convicted of
aggravated driving while intoxicated. At trial, the prosecution introduced a certified blood
alcohol concentration report into evidence. However, it did so through the testimony of an
analyst who had not conducted the actual forensic analysis. The Supreme Court held that such
―surrogate testimony * * * does not meet the constitutional requirement‖ of the Sixth
Amendment. Bullcoming, 131 S. Ct. at 2710. The decision reiterated that the ―accused‘s right is
to be confronted with the analyst who made the certification, unless that analyst is unavailable at
trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.‖ Id.Both Bullcoming and Melendez-Diaz merely apply the rule announced in Crawford.
Therefore, those cases cannot be considered to have established a ―novel constitutional rule.‖
See Butler v. Curry, 528 F.3d 624, 634 (9th Cir. 2008) (―[W]hen a general rule must be applied
in a new situation, it can hardly be thought to have created a new principle of constitutional law.‖
(internal quotation marks omitted)). Crawford was the case that breathed new life into the
Confrontation Clause. The Court announced a broad rule based on a ―categorical constitutional
guarantee[]‖: ―Where testimonial evidence is at issue, * * * the Sixth Amendment demands what
the common law required: unavailability and a prior opportunity for cross-examination.‖
Crawford, 541 U.S. at 67, 68.
Certainly, at the time of defendant‘s trial, the Supreme Court had not established the
precise contours of what is and what is not ―testimonial evidence.‖ That does not mean,
however, that each Supreme Court case applying Crawford announces ―a novel constitutional
rule.‖ The basic principle was established at the moment when Crawford was published: if a
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prosecutor seeks to introduce evidence of testimonial statements where the defendant did not
have an opportunity to cross-examine the declarant, the defendant has a basis for objecting under
the Sixth Amendment. Notably, the defendants in both Melendez-Diaz and Bullcoming were
sufficiently aware of the principle established by Crawford to object on those grounds at trial.
See Bullcoming, 131 S. Ct. at 2712 (―Without Caylor‘s testimony, defense counsel maintained,
introduction of the analyst‘s finding would violate Bullcoming‘s Sixth Amendment right to be
confronted with the witnesses against him.‖ (internal quotation marks omitted)); Melendez-Diaz,
557 U.S. at 309 (―Petitioner objected to the admission of the certificates, asserting that our
Confrontation Clause decision in Crawford * * * required the analysts to testify in person.‖).
Bullcoming or Melendez-Diaz might have established a novel constitutional rule if
Crawford had announced that only statements made to police constituted ―testimonial‖
statements. But Crawford contained no suggestion that the principle which it announced would
be so limited. Indeed, the opinion included ―[v]arious formulations‖ of what the Court called a
―core class‖ of testimonial statements. Crawford, 541 U.S. at 51. Included among those
formulations were ―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 52. The defendant‘s brief to this Court bases its argument on this
category, noting that ―an objective witness [would] reasonably * * * believe that the resident‘s
statements would be available for use at a later trial.‖ However, the conceptual basis for that
precise argument was laid in Crawford—not in Melendez-Diaz or Bullcoming.
The defendant appears to conflate the concept of ―a novel constitutional rule‖ with an
established constitutional rule that is applied to a novel fact pattern. For example, defendant
argues that ―Melendez-Diaz was the first time that the Crawford line of case[s] had been applied
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to what previously had been considered ‗neutral‘ scientific evidence not subject to the
confrontation clause.‖ That may well be true, but the new application did not expand or
otherwise alter the basic principle that was announced in Crawford. The majority opinion in
Melendez-Diaz explicitly noted that the decision in that case constituted a ―rather straightforward
application of [the Supreme Court‘s] holding in Crawford.‖ Melendez-Diaz, 557 U.S. at 312.
Other courts have similarly stated that Melendez-Diaz did nothing more than apply Crawford to
a different set of facts—a scenario that surely does not constitute ―a novel constitutional rule.‖
See, e.g., Peak v. Webb, 673 F.3d 465, 480 (6th Cir. 2012) (noting that Melendez-Diaz ―did not
provide a new or novel interpretation of the Confrontation Clause‖); Hatley v. State, 722 S.E.2d
67, 70 (Ga. 2012) (―Some of the Confrontation Clause issues left unanswered by Crawford were
clarified in Melendez–Diaz.‖); State v. Sorensen, 814 N.W.2d 371, 376 (Neb. 2012) (―The Court
subsequently clarified the meaning of ‗testimonial‘ in Melendez–Diaz v. Massachusetts and
Bullcoming v. New Mexico.‖); State v. Kennedy, 735 S.E.2d 905, 926 n.22 (W. Va. 2012)
(―Bullcoming [and] Melendez–Diaz * * * merely clarify and apply Crawford‘s principles
* * *.‖).
The ―narrow exception‖ to the ―raise or waive‖ rule applies to novel constitutional rules.
It is not available when the Supreme Court applies a familiar constitutional rule to a novel fact
pattern. If that were the standard, then virtually every constitutional decision of the Supreme
Court would provide defendants an opportunity to take advantage of the exception. There would
be nothing ―narrow‖ about such an outcome, nor would that outcome further the rule‘s purpose
of ―fairness and efficiency in the judicial process.‖ See DeMarco, 26 A.3d at 628 n.55. Because
the defendant‘s argument is based on a constitutional rule that was not novel at the time of his
- 17 -
trial, the defendant‘s bare objection does not fit within the narrow exception to our ―raise or
waive‖ rule.
V
Conclusion
For the reasons set forth in this opinion, we affirm the Superior Court‘s judgment of
conviction. The record in this case may be returned to that tribunal.
Flaherty, J., and Indeglia, J., dissenting in part and concurring in the result.
Hindsight is always twenty-twenty—especially when afforded the benefit of almost seven years
of clarifying United States Supreme Court jurisprudence. After a careful review of Crawford v.
Washington, 541 U.S. 36 (2004), and its progeny, we respectfully have concluded that we must
write separately.
We are unable to agree with the majority‘s conclusion that, by failing to raise a specific
objection under the Confrontation Clause to certain testimony presented at trial, Moten has
waived that argument on appeal.9 In our opinion, Moten‘s objection under the Confrontation
Clause was novel at the time Dr. Harper testified to the out-of-court statements made by the
ophthalmologist regarding a retinal examination that the ophthalmologist had performed on the
injured infant. Therefore, this Court should have reached the merits of whether these out-of-
court statements were testimonial in nature. Although we ultimately conclude that those
9
Moten did object to the admission of this testimony on what could have been understood
to be hearsay grounds, which the trial justice overruled. It is noteworthy that in a decision issued
just before the trial in this case commenced, this Court left for another day the decision as to
―whether a defendant‘s unsuccessful objection to a statement on hearsay grounds alone would
have preserved the Crawford issue for review on appeal.‖ State v. Harris, 871 A.2d 341, 345
n.11 (R.I. 2005).
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statements were nontestimonial and that, therefore, their admission did not violate Moten‘s right
of confrontation, we cannot agree with the majority that Moten‘s failure to articulate the
Confrontation Clause as the basis for his objection to that portion of Dr. Harper‘s testimony
precludes him from raising that argument before this Court on appeal.
Preservation of Error
As the majority points out, this Court recognizes a narrow exception to our well-settled
―raise or waive‖ rule. For that exception to apply, ―the alleged error must be more than
harmless, and the exception must implicate an issue of constitutional dimension derived from a
novel rule of law that could not reasonably have been known to counsel at the time of trial.‖
State v. Breen, 767 A.2d 50, 57 (R.I. 2001).
The majority concedes that, ―[c]ertainly, at the time of defendant‘s trial, the [United
States] Supreme Court had not established the precise contours of what is and what is not
‗testimonial evidence.‘‖ In fact, the Crawford Court explicitly acknowledged that it declined to
articulate a comprehensive definition of the term ―testimonial,‖ explaining: ―[w]e leave for
another day any effort to spell out a comprehensive definition of ‗testimonial.‘‖ Crawford, 541
U.S. at 68.10 It was not until approximately three-and-one-half years after Moten‘s trial, which
took place in 2006, that the United States Supreme Court moved beyond the realm of
interrogation and considered whether forensic analyses—statements much more akin to the
ophthalmologist‘s out-of-court statements made to Dr. Harper—were testimonial in nature and,
10
There is no question that the Crawford Court identified a ―core class of ‗testimonial
statements,‘‖ including extrajudicial statements such as affidavits, depositions, prior testimony,
and confession. Crawford v. Washington, 541 U.S. 36, 51-52 (2004). However, the closest the
Court came to actually defining—rather than merely describing—the term ―testimonial
statement‖ was in its catchall example of ―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.‖ Id. at 52.
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thus, subject to exclusion under the Confrontation Clause. See Melendez-Diaz v. Massachusetts,
557 U.S. 305, 311 (2009).
Indeed, in Melendez-Diaz, 557 U.S. at 307, the Supreme Court was asked for the first
time to identify whether ―affidavits reporting the results of forensic analysis which showed that
material seized by the police and connected to the defendant was cocaine * * * [we]re
‗testimonial,‘ [thereby] rendering the affiants ‗witnesses‘ subject to the defendant‘s right of
confrontation under the Sixth Amendment.‖ The Court held that the admission of those
affidavits violated the defendant‘s right of confrontation because the affiants were not available
for cross-examination. Id. at 311. In so holding, the Court reasoned that the affidavits 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 * * *.‖ Id.Although the Court stated that its holding ―involve[d] little more than the application of
[the] holding in Crawford,‖ in reality, Melendez-Diaz was pivotal in Sixth Amendment
jurisprudence. Melendez-Diaz, 557 U.S. at 329. In its wake, trial judges could do little more
than ―guess what future rules th[e] Court w[ould] distill from the sparse constitutional text‖ of
the Sixth Amendment. Melendez-Diaz, 557 U.S. at 331 (Kennedy, J., dissenting). Indeed, one
year after Melendez-Diaz was decided, the Supreme Judicial Court of Massachusetts observed
that the scope of the Confrontation Clause remained ―unsettled‖ and that Crawford‘s reach ―was,
and remain[ed], vigorously debated.‖ Commonwealth v. Vasquez, 923 N.E.2d 524, 532 (Mass.
2010). We agree.
Two years after the decision in Melendez-Diaz, the United States Supreme Court decided
Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011). There, the Court was asked to address
whether the Sixth Amendment allowed ―the in-court testimony of an analyst who did not sign [a
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testimonial] certification [of a forensic laboratory report concerning the blood alcohol
concentration of the defendant] or personally perform or observe the performance of the test
reported in the certification.‖ Bullcoming, 131 S. Ct. at 2713. In holding that the defendant had
a right to confront the analyst who actually certified that report, the Court cited Melendez-Diaz,
557 U.S. at 319-26, for support that ―[a]n analyst‘s certification prepared in connection with a
criminal investigation or prosecution * * * is ‗testimonial,‘ and therefore within the compass of
the Confrontation Clause.‖ Bullcoming, 131 S. Ct. at 2713-14. The Court described its decision
as ―in line with controlling precedent,‖ id. at 2713; however, the dissent maintained, correctly in
our view, that ―[t]he persistent ambiguities in the Court‘s approach are symptomatic of a rule not
amenable to sensible applications.‖ Id. at 2726 (Kennedy, J., dissenting).
Similarly, when Moten was tried in 2006, this Court had provided little guidance on the
application of Crawford. In State v. Feliciano, 901 A.2d 631, 642 (R.I. 2006)—decided a mere
five months prior to Moten‘s trial—this Court stated: ―[W]e leave for another day the chore of
fleshing out the extent to which the [United States] Supreme Court‘s elucidation of the
Confrontation Clause otherwise affects our case law on the subject, if at all.‖ See also State v.
Harris, 871 A.2d 341, 345 n.12 (R.I. 2005) (―[T]he meaning of th[e] term [testimonial] will one
day have to be more precisely defined by the courts.‖).
And so, we are now left to consider whether, at the time of Moten‘s trial—years before
Melendez-Diaz and Bullcoming applied Crawford‘s reach beyond statements made to police
officers—defense counsel could have reasonably known that the admission of out-of-court
statements made by one doctor to another regarding the results of a retinal eye examination
potentially might violate Moten‘s right of confrontation. We conclude that, even if those cases
did not clearly announce novel rules of law, they certainly employed novel applications to an
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unsettled rule of law. In reading the holdings of Melendez-Diaz and Bullcoming as mere
applications of Crawford, the majority, in our opinion, does not sufficiently appreciate that both
of those cases substantially expanded the scope of the Confrontation Clause.
Today, it is easy to conclude that competent defense counsel would raise an objection
under the Confrontation Clause to the disputed portion of Dr. Harper‘s testimony, but we cannot
say that Moten‘s counsel should have reasonably known that that objection would have been
prudent at the time of his trial. See Breen, 767 A.2d at 57. Although it cannot reasonably be
disputed that the exception to our ―raise or waive‖ rule is indeed a narrow one, we maintain that
the majority effectively reads this exception out of our jurisprudence. The line between a novel
rule of law and the application of a rule of law in a new context can sometimes be blurry, if not
indistinguishable. We acknowledge that this is a close call, but we cannot fault defense counsel
for his failure to forecast Crawford‘s application to the facts at issue. Accordingly, we
respectfully suggest that the majority should have addressed the Confrontation Clause issue as it
relates to the disputed portion of Dr. Harper‘s testimony to determine whether the trial justice
erred in admitting this testimony.
Application of the “Primary Purpose” Test
We now turn to the merits of Moten‘s Confrontation Clause challenge. Our inquiry
focuses on whether the out-of-court statements made by the ophthalmologist to Dr. Harper
concerning the results of a retinal eye test performed on the baby were testimonial in nature.
Contending that those statements were testimonial, Moten ascribes error to the admission of that
testimony. The state counters that those statements did not violate Moten‘s right of
confrontation, because Dr. Harper essentially testified to her own medical opinions and she was
subject to cross-examination. As we noted above, guidance from the United States Supreme
- 22 -
Court on this issue has been less than clear. However, we set forth the law as best we can derive
it from applicable precedent.
In determining whether the ophthalmologist‘s statements were testimonial, we employ
the primary purpose test. See Davis v. Washington, 547 U.S. 813, 822 (2006) (Statements ―are
testimonial when the circumstances objectively indicate that there is no * * * ongoing
emergency, and that the[ir] primary purpose * * * is to establish or prove past events potentially
relevant to later criminal prosecution.‖). In so doing, we look to ―the circumstances in which the
encounter occurs and the statements and actions of the parties.‖ Michigan v. Bryant, 131 S. Ct.
1143, 1156 (2011). If this inquiry reveals that the ophthalmologist‘s statements were made for
the primary ―purpose of proving the guilt of a particular criminal defendant at trial‖ or ―to
provide a solemn declaration for use at trial,‖ those statements would implicate the Confrontation
Clause. Williams v. Illinois, 132 S. Ct. 2221, 2243 (2012) (plurality op.).
Doctor Harper was statutorily obligated, pursuant to G.L. 1956 § 40-11-6,11 to report
suspected child abuse or neglect, as defined in G.L. 1956 § 11-9-5.3,12 to the Department of
11
General Laws 1956 § 40-11-6 provides, in pertinent part:
―(a) When any physician or duly certified registered nurse
practitioner has cause to suspect that a child brought to him or her
or coming to him or her for examination, care, or treatment, is an
abused or neglected child as defined in this chapter, * * * he or she
shall report the incident or cause a report thereof to be made to
[DCYF] as provided in subsection (b).
―(b) An immediate oral report shall be made by telephone or
otherwise, to both the department and law enforcement agency,
and shall be followed by a report, in writing, to the department and
law enforcement agency explaining the extent and nature of the
abuse or neglect the child is alleged to have suffered.‖
12
In this case, Moten was found guilty of first degree child abuse under G.L. 1956 § 11-9-
5.3(b)(1), which provides, in pertinent part:
―(b) Whenever a person having care of a child, as defined by §
40-11-2(2) [as ‗a person under the age of eighteen (18)‘], whether
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Children, Youth and Families (DCYF) and law enforcement. Although this Court has not yet
had the opportunity to address the interplay between a statutory duty to report and the
Confrontation Clause, we need not write on a blank slate. We agree with other jurisdictions that
have held that a statutory duty to report does not necessarily render a statement testimonial under
the Confrontation Clause. See, e.g., Seely v. State, 282 S.W.3d 778, 788 (Ark. 2008) (holding
that a social worker‘s duty to report child abuse did not, by itself, render the child victim‘s
statements testimonial); State v. Spencer, 169 P.3d 384, 389 (Mont. 2007) (holding that a
mandatory reporting statute was not ―intended to deputize th[e] litany of professionals and
individuals [listed therein] into law enforcement‖). The focus should remain on the
circumstances surrounding the statement and whether those circumstances objectively indicate
that the primary purpose of the statement is to prove events relevant to criminal prosecution. See
Melendez-Diaz, 557 U.S. at 310 (citing Crawford, 541 U.S. at 51-52). In so doing, we must turn
to the primary purpose of Dr. Harper‘s consultation with the ophthalmologist. See Bryant, 131
S. Ct. at 1157; see, e.g., State v. Justus, 205 S.W.3d 872, 880 (Mo. 2006) (holding that the
primary purpose of an interview was to preserve testimony for a later criminal prosecution,
thereby rendering the declarant‘s statements testimonial; interviewer knew that her interview was
―an official interview done for law enforcement‖ and interviewee was aware that her statements
could be used to prosecute the defendant); State v. Blue, 717 N.W.2d 558, 564-65 (N.D. 2006)
assumed voluntarily or because of a legal obligation, including any
instance where a child has been placed by his or her parents,
caretaker, or licensed or governmental child placement agency for
care or treatment, knowingly or intentionally:
―(1) Inflicts upon a child serious bodily injury, shall be guilty of
first degree child abuse.‖
Section 11-9-5.3(c) defines ―serious bodily injury,‖ to include physical injury that:
―(4) Evidences subdural hematoma, intercranial hemorrhage
and/or retinal hemorrhages as signs of ‗shaken baby syndrome‘
and/or ‗abusive head trauma.‘‖
- 24 -
(holding that the declarant‘s statements during an interview were testimonial because there was
no ―ongoing emergency‖ and the primary purpose was undoubtedly to prepare for trial).
In light of Dr. Harper‘s statutory obligation to contact DCYF—and because evidence of
retinal hemorrhages is delineated by the statute as one way to demonstrate serious bodily injury,
thus establishing first degree child abuse—it seems clear that Dr. Harper would have anticipated
that the information gathered from the ophthalmologist might be used in a subsequent
prosecution. See § 11-9-5.3(c)(4) (defining ―retinal hemorrhages‖ as one form of serious bodily
injury). It does not necessarily follow, however, that the primary purpose of the
ophthalmologist‘s statements was to provide evidence of criminal conduct rather than to provide
medical treatment. See Bryant, 131 S. Ct. at 1157. Moreover, there was no evidence that Dr.
Harper contacted the ophthalmologist at the specific request of the police or DCYF.
In our view, the primary purpose of the ophthalmologist‘s examination was to determine
the extent of the injuries to the baby for the purpose of rendering medical treatment. Doctor
Harper testified that she was concerned with the baby‘s retinal bleeding, which could otherwise
lead to blindness if left untreated.13 Indeed, she stated that the attending physician performed
another eye examination on the baby the very next morning—as well as on several other
occasions in the following weeks and months—because of the concern that retinal hemorrhages
could damage the baby‘s eyesight. Thus, even if it was known or suspected that the
13
Specifically, Dr. Harper testified that
―once you have hemorrhages in the eye, it can keep you from
seeing well. And if you can‘t see well, and when you‘re young
and trying to develop your vision, it can cause permanent
difficulties with something called amblyopia where you can‘t focus
properly. You look cross-eyed. You may even go blind. So, there
are grave concerns once you see these injuries to the back of the
eye. You have to follow them closely and to make sure that she
sees clearly and to make sure that the baby doesn‘t need surgery on
the eye. It‘s a concerning point.‖
- 25 -
ophthalmologist‘s reports would likely be used in a future criminal trial, the primary function of
the report was not to accuse ―a targeted individual of engaging in criminal conduct,‖ Williams,
132 S. Ct. at 2242, or to ―establish or prove past events potentially relevant to later criminal
prosecution.‖ Davis, 547 U.S. at 822; see also Bryant, 131 S. Ct. at 1154; Melendez-Diaz, 557
U.S. at 310. Rather, the primary purpose of the ophthalmologist‘s report was to resolve an
ongoing medical emergency—to wit, damage to the baby‘s eye sight and the potential threat of
blindness. Because the primary purpose of the ophthalmologist‘s statements was to resolve that
emergency with proper medical treatment, thereby rendering the statements nontestimonial, we
would conclude that their admission did not violate the Confrontation Clause.
Although we respectfully disagree with the majority‘s conclusion that Moten‘s
Confrontation Clause challenge was not novel, and believe that the majority should have reached
the merits of this issue, we ultimately conclude—after our own review of the merits—that the
majority reached the proper result in affirming the judgment of conviction, because the evidence
offered by Dr. Harper was nontestimonial.
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RHODE ISLAND SUPREME COURT CLERK’S OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE: State v. Jeffrey Moten.
CASE NO: No. 2008-51-C.A.
(P2/05-1037CR)
COURT: Supreme Court
DATE OPINION FILED: May 17, 2013
JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
WRITTEN BY: Associate Justice William P. Robinson III
SOURCE OF APPEAL: Providence County Family Court
JUDGE FROM LOWER COURT:
Associate Justice Michael B. Forte
ATTORNEYS ON APPEAL:
For State: Jane M. McSoley
Department of Attorney General
For Defendant: Lara E. Montecalvo
Office of the Public Defender