Justia.com Opinion Summary: Waymon Anderson was convicted of sexual abuse of a minor and second degree sexual offense. The State's evidence submitted to the trial court included a written report made to a detective in the police department by the medical director of the facility that conducted a forensic exam of the victim and interviewed the victim. The court of special appeals affirmed the ruling. Anderson filed a petition for writ of certiorari, contending that the trial court erred in admitting the report by the doctor, who was not present at trial, and allowing another doctor to testify as to its contents when the report had not been made for purposes of medical diagnosis or treatment. The Court of Appeals reversed the judgment of the intermediate appellate court, holding that (1) the report should have been excluded on the ground that it was prepared in anticipation of litigation and was not admissible under either the "business records" exception or the "statements in contemplation of treatment" exception to the rule against hearsay; and (2) the erroneous decision to admit the report into evidence was not harmless beyond a reasonable doubt. Remanded for a new trial.
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HEADNOTE:
Anderson v. State, No. 92, September Term, 2010
EVIDENCE; EXAMINING PHYSICIAN’S REPORT TO POLICE OFFICER
INVESTIGATING CHILD ABUSE: Under Maryland Rules 5-801(c) and 5-802, an
examining physician’s written report to a police officer is inadmissible on the issue
of whether, when the child victim answered the questions asked by the physician
during the examination, the child understood that she was providing information for
the purpose of medical treatment or diagnosis.
IN THE COURT OF APPEALS
OF MARYLAND
No. 92
September Term, 2010
WAYMON ANDERSON
v.
STATE OF MARYLAND
Bell, C.J.
Harrell
Battaglia
Greene
Murphy
Adkins
Barbera,
JJ.
Opinion by Murphy, J.
Harrell and Adkins, JJ., Dissent.
Filed:
July 13, 2011
In the Circuit Court for Montgomery County, a jury convicted Waymon Anderson,
Petitioner, of sexual abuse of a minor and second degree sexual offense. The State’s
evidence, which included the testimony of the alleged victim (Petitioner’s niece, Brittany
B, “Brittany”), was sufficient to establish that he committed those offenses during the
first four months of 2008. That evidence, however, included a written report made to
Detective Mike Carin of the Montgomery County Police Department by Stephen C. Boos,
M.D., who did not testify at trial. The Circuit Court overruled Petitioner’s objection to
the introduction of that report. After that ruling was affirmed by the Court of Special
Appeals in an unreported opinion, Petitioner filed a petition for writ of certiorari with this
Court, in which he presented a single question:
Did the trial court err in admitting the report prepared by Dr.
Stephen Boos, who was not present at trial, and in allowing Dr.
Evelyn Shukat to testify as to it contents, when such report had
not been made for purposes of medical diagnosis or treatment?
We granted the petition. 416 Md. 272, 6 A.3d 904 (2010). For the reasons that follow,
we hold that Dr. Boos’ report to Detective Carin should have been excluded on the
ground that it was prepared in anticipation of litigation, and was not admissible under
either the “business records” exception or the “statements in contemplation of treatment”
exception to the rule against hearsay. We also hold that the erroneous decision to admit
the report into evidence was not harmless beyond a reasonable doubt.
Background
On April 28, 2008, Brittany told her mother that she had been abused by Petitioner,
and her mother took Brittany to Holy Cross Hospital. The records of that hospital, which
are admissible under Md. Rule 5-803(b)(6), show that the “follow up instructions” that
were given to Brittany include: “Shady Grove Hospital as directed by police for your
forensic exam and interview.” The investigating officers, however, referred Brittany to
The Tree House Child Assessment Center of Montgomery County (Tree House).
On April 28, 2008, Dr. Boos was the Medical Director of the Tree House. The
State’s case-in-chief included (1) a “redacted” version of Dr. Boos’ report to Detective
Carin, and (2) expert testimony based on that report, presented by Dr. Elizabeth Shukat,
who was the Tree House’s Medical Director at the time of Petitioner’s trial. The first
page of the report was prepared on paper with the following letterhead:
The Tree House
Montgomery County Child Assessment Center
7300 Calhoun Pl, Suite 604
Rockville, MD 20855
(Telephone & Fax numbers appear on original)
The report included the following assertions:
Monday, April 28, 2008
To:
Detective Mike Carin
Thomas Earl
From: Stephen C. Boos, M.D.
Re:
Brittany B[]
Date of birth: July 24, 1998
Date of evaluation: April 28, 2008
Brittany B[] is a nine-year-old African -American
female who was referred to the Tree House Child Assessment
Center of Montgomery County. She presented here on April
2
28, 2008, accompanied by her mother, Doris B[]. She was
referred for a medical history recommendation[] pursuant
concerns of child sexual abuse.
Past medical history:
***
On a review of systems the child reported
stomachaches since last week. She feels this as a very brief
rumbling pain in her supra umbilical area in the afternoon. As
noted, the pain is brief and it occurs less than every day. For
genital symptoms, Brittany reported burning urination
sometimes. She spontaneously commented “it started when
Uncle [] do that.” I asked her how long it lasts after [] “do
that,” and she said for a few days. She has no history of
constipation, no history of past genital injury, and no medical
attention for genital or anal complaints.
History from Brittany B[]
I spoke with Brittany about the things she likes to do in
her school environment to become more familiar with her. I
reminded her that I was a doctor and we needed to talk about
doctor things. I told her that doctors have two problems when
they talk to patients. First, sometimes kids want to give an
answer when an adult asks a question, and they may not know
the answer or not understand the question. I told her that I
needed her to tell me if she didn’t understand the question and
ask me to rephrase it. I also told her that if she didn’t know
the answer she should tell me that rather than guessing,
because that would not help me take care of her. I then
continued that doctors talked about very private things and
sometimes kids want to keep a secret. I encouraged her either
to tell me the truth, or if she just could not reveal something,
to tell me that it was secret, but never to lie to me because if I
made a decision based on the lie, I might not take proper care
of her. I then asked her to agree to not lie, not guess and not
keep secrets. She agreed to these things.
3
I then asked Brittany if she knew why she needed to
see a doctor today. She replied, “no, not really.” I then asked
her if anything different happened to her than happens to
other kids so that she might need some special doctor’s care.
She nodded, indicating yes. I asked her to tell me about it.
She responded “I was sexually assaulted.” I told her that I
needed to know exactly how that happened. She replied “my
grandma and my mother and my aunt go out, and [] tell me to
come in his room, and [] make me suck his private part.” [] I
told her that she also referred to “he” or “his” and I needed to
know who “he” or “his” was. She answered “Uncle Wayne.”
[]
[] I asked her if something [] ever happened to her
body. She answered “my Uncle Wayne licked my private
part.” I pointed out that previously she had said that she had
to suck “his” private part. I wanted to know what private part
she was referred to. She responded “[] Uncle Wayne.” When
I asked her if it was every somebody else, she replied “no.” I
asked her if any other things happened to her body that she
didn’t like or thought were bad and she replied “no.” I asked
if there was any other kind of touching that she didn’t like,
and she again asserted “no.” I pointed out that before she had
said that it burned her to pee after what happened to her. She
immediately responded “when I use the bathroom, []. I asked
her what made it so that it hurt when she peed. She replied
“because it’s in my area.” I pointed out that I didn’t
understand this, and she explained “because when he licked
my private part, he pressed down too hard.” I asked her if any
other private parts touched on her private part, and she replied
“no. I then asked her how about things happening with hands.
She answered “no,” so I asked her “there wasn’t any rubbing
or touching” and she correct herself, just answering
“rubbing.” I then asked her, tell me about rubbing. She
answered “he would take his hand or his finger and stick it
down my pants.” I asked her what he did there and she
replied “he would rub, on me, my private area.” I asked her
who she was referring to this time, and she said “Uncle
Wayne.” She also told that this made it burn when she
urinated.
4
I returned to the question about sucking on private
parts. [] I [] asked her about Uncle Wayne, and if anything
from him got on her. She shook her head no. I added or in
your mouth, and she nodded her head, indicating yes. I
reaffirmed “so you had to suck his private too,” and she
reasserted this, saying yes.
I next asked Brittany if she thought about things like
this sometimes. She said that she did and it “pops in my
mind,” when we’re talking about stuff. She added
“sometimes I think I should tell my mom, sometimes I think
she won’t believe me.” I asked Brittany if her Uncle Wayne
[] wanted her to tell, and she stated “no.” I asked her how she
knew this, and she replied “they would say if I told bad things
would happen to me.” I asked her if [] said this, and she said
[“]Uncle Wayne.[”]
I next asked Brittany why she told her mom’s friend.
She answered “I needed someone to talk to; I wanted to share
my feelings.” I asked her to tell me more about that and she
said “I felt that I should talk to somebody before I told my
mom.” When I asked her why, she said “so I could get my
story straight, so she would understand it.” Because of this
utterance I asked her whether or not the things she had been
saying were all true. She asserted that they were, saying
“yes.” I asked her if anything was exaggerated beyond what
had really happened, and she shook her head and said “no.” I
then asked her how she felt now that she had told. She
replied “healthy, good.” And she smiled.
***
I asked Brittany if she is having any problems with her
body now. She denied that she was. She said that sometimes
it hurts in her private, like a little pinch every once in a while.
She denied any discharge or any bleeding. She also said it no
longer hurt to void.
The following transpired when Petitioner’s trial counsel moved in limine that the
5
State be prohibited from introducing Dr. Boos’ report into evidence:
[PETITIONER’S COUNSEL]: The State wants to offer this
document from – that’s been generated by the Tree House
and signed by Dr. Boos –
THE COURT: Okay.
[PETITIONER’S COUNSEL]: – in this matter. It’s
obviously a hearsay document. I believe that the State is
going to rely upon this being under the exception for medical
treatment purposes. I am suggesting to the Court, most
respectfully, that it does not fit within that rubric. Prior to
going – being taken by the police –
***
[PETITIONER’S COUNSEL]: Okay. I don’t think that this is
a statement made by Brittany for the purposed [sic] of
treatment to Dr. Boos. One of the reasons that I would
suggest to the Court that this wasn’t for the purposes of
treatment is, the fact that she was already taken to Holy Cross.
When she gets to Holy Cross, she’s examined by them. The
report says what they do. Gives her directions as to what to
do in terms of followup. When she gets – if you look at the
report to Dr. Boos, the original report, not the redacted
version, when Brittany gets – well, first of all, look at to
whom the report is directed. It’s directed to Detective
Mike Carin and Thomas Earl from Dr. Boos.
THE COURT: Okay.
[PETITIONER’S COUNSEL]: That has – he would be doing
that there – if you look at [State v.] Coates[, 405 Md. 131, 950
A.2d 114 (2008)] and you do the analysis that Coates follows
in this case, questions concerning the identify of the
perpetrator –
THE COURT: They’ve redacted those.
6
[PETITIONER’S COUNSEL]: – are not relevant in this case.
THE COURT: Well, actually, I think Coates says that they
normally aren’t. They may or may not be, and I think that it
referred to an earlier case where as if – where the child is still
symptomatic, possibly identity might be pathologically
germane, but they redacted the references as to the name, so
it’s a non-issue.
[PETITIONER’S COUNSEL]: And, I guess the other thing
that I would point out to the Court is, Dr. Boos, who took the
history in this particular case, is the one who reported this
information. I have no right to cross-examine. I can’t crossexamine the report, and obviously one of the protections
that my client has is to cross-examine Dr. Boos. He’s
available. He’s in Boston. They could have brought him
down, rather than trying to put this report in, yet they
didn’t. My client has a right to confront his accusers, and
what’s in this report essentially is being used as an
accusation. These are statements taken, part of a forensic
review –
***
THE COURT: So that, you know, I’m not inclined, since you
have the other witness who is here, subject to crossexamination, to admit the assessment portion of the report. I
mean, it would appear to me that the history portion and what
the child reports, and we’ve had the mother here and, I think,
[Petitioner’s counsel] even asked the mother what she told the
doctor, so as to the history portion of the exam, [Petitioner’s
counsel], quite frankly, it would appear to me that that does
fall within the hearsay exceptions, statements made for
purposes of diagnoses or treatment, and I think it was Coates
and or other cases, but I believe it’s Coates that says you can
clearly have dual purposes, and although she initially says,
you know, “I’m not sure why I’m here,” the doctor explains
what he needs to do and why he needs to do it, and the proffer
is it’s done that same day as the initial report, which may be
within a week. It’s a little unclear of the last assault, so, I
7
mean, it clearly seems to me that it does related to diagnosis
and treatment. So I’m inclined, frankly, to admit the history
portion of what she relates occurred, but not the doctor’s
assessment. Although I mean, that’s the physical exam. I
don’t have a problem necessarily with the physical exam.
[PETITIONER’S COUNSEL]: Are you talking about where
[it] says “past medical history”? Is that the part that you’re
saying you are willing to admit?
***
THE COURT: I’m talking about “past medical history, social
history, history from Brittany B.” I’m talking about the first
four pages. It’s all part of the history as far as I’m concerned.
***
[PETITIONER’S COUNSEL]: You just mentioned that there
can be dual purposes.
THE COURT: Right.
[PETITIONER’S COUNSEL]: and one of the things, I think,
that comes out in Coates, when you read Coates carefully, and
I’m sure you’ve [read] it –
THE COURT: Yes.
[PETITIONER’S COUNSEL]: – as closely as I have, is we
have to look at the primary purpose, and one of the words that
Coates uses, I think, quite clearly is the over arching purpose
of the interview. Is it for medical? Is it for forensic
purposes? Is it, you know – which one of them prevails, or is
both? And in this particular case, she’s already had a medical
evaluation before she ever got to Dr. Boos, and if this was for
medical purposes, I don’t see one thing in Dr. Boos’ report
where there’s any suggestion as to what she should do for
treatment of this problem, and –
8
THE COURT: Well, he refers her – I mean, at the bottom – I
mean, he orders certain testing. He also says that she should
have evaluation, I believe, for – I mean, as I see it, frankly, it
seems to me that he is probably – appears to be more focused
on the mental health aspects, at least towards the end, than the
concerns about the physical, although he orders certain tests
to rule out a sexually transmitted diseases and or issues about
AIDS, I guess, because of the exposure to semen, but he
specifically says, he’s cultured her for chlamydia, gonorrhea,
he sends her for blood tests for HIV, hepatitis, syphilis,
cultured the anus and the vagina. Says if these tests are
negative, then she has no specific traditional medical needs
stemming from her child abuse, so he clearly is investigating
that. He doesn’t know yet.
And then I think he goes on to say she’s not currently
reporting, but he says a medical health assessment is
mandatory in this case.
***
[PETITIONER’S COUNSEL]: Well, I don’t want the
assessment in if I have to accept anything, and the other part
is, it’s – we’ve had testimony about all of this already. We’ve
had [Brittany’s mother]. I mean, this is certainly cumulative,
but – that’s my objection.
THE COURT: Overruled, I think, I mean, first of, I think
Coates makes clear that the real test if what the declarant
thinks why they were there.
[PETITIONER’S COUNSEL]: Well yes. What’s the state of
mid [sic] of the declarant?
THE COURT: But I think as you read through that, he
explains to the declarant the need to find this information out,
the purposes of it, and it does appear, for reviewing the entire
report, that he is addressing potentially for two purposes, but
very much so, one of the purposes at least, is assessing what
treatment, whether it is traditional physical, as her [sic] refers
9
to, and or mental health treatment that she may need. I
believe that was communicated to her throughout the, I mean,
based on the body of the report, and it occurs the same day
that she reports it.
(Emphasis supplied).
The State’s case included Brittany’s testimony. During her testimony, however,
Brittany was not questioned about her understanding of why she had been “referred” to
the Tree House.
Discussion
Maryland Rule 5-801(c) defines “hearsay” evidence as “a statement, other than
one made by the declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted.” During Brittany’s testimony, she was not asked if
she understood why she had been (in the words of Dr. Boos’ report) “referred for a
medical history recommendation” at the Tree House, which (in the words of the State’s
brief) “provides . . . victim advocacy [and] forensic interviews.” The Circuit Court
nonetheless found that, when Brittany was answering Dr. Boos’ questions, she understood
that she was providing information for the purpose of medical treatment or diagnosis.
As the above quoted proceedings show, the Circuit Court’s finding that Brittany’s
statements to Dr. Boos were “in contemplation of treatment” was based solely upon Dr.
Boos’ report to Detective Carin. The report, which was “hearsay” evidence of Brittany’s
state of mind when she was interviewed by Dr. Boos, should have been excluded pursuant
to Md. Rule 5-802. The report was not admissible to establish that Brittany’s statements
10
to Dr. Boos qualified under Md. Rule 5-803(4) as statements made for purposes of
medical treatment or medical diagnosis in contemplation of treatment.1
Nowhere in the record is there a valid explanation for why the “hospital records”
hearsay exception should extend to the report at issue. It is doubtful that, even if Dr.
Boos testified, he could have provided such an explanation. Unfortunately, although both
Maryland and Massachusetts have adopted the Uniform Act to Secure the Attendance of
Witnesses from Without a State in Criminal Proceedings,2 the State made no attempt to
use the provisions of the Act to secure the attendance of Dr. Boos. Under these
circumstances, the Circuit Court erred in overruling Petitioner’s objection to the
introduction of the report at issue.
Moreover, even if Dr. Boos had testified as a State’s witness, his report to
Detective Carin would have been inadmissible unless Petitioner’s trial counsel somehow
“opened the door” to its introduction. Although the State could certainly have used the
report to refresh Dr. Boos’ recollection, under Md. Rule 5-612, portions of a writing used
Although Petitioner’s trial counsel also objected to the introduction of Dr. Boos’
report on the ground that Petitioner “has a [Sixth Amendment] right to confront his
accusers,” we shall not address the federal constitutional issue because of our adherence
to the well established “principle that we will not reach a constitutional issue when a case
can properly be disposed of on a non-constitutional ground.” Myer v. State, 403 Md. 463,
475, 943 A.2d 615, 622 (2008). The introduction of Dr. Boos’ report “violated Maryland
evidence law separate and apart from any rights Petitioner may have under the Sixth
Amendment to the United States Constitution.” Id.
1
Md. Code (2006 Rep. Vol.), Courts & Judicial Proceedings art., § 9-301 et seq.;
Mass. Ann. Laws Ch. 233, §§ 13A-D (Lexis Nexis 2011).
2
11
to refresh a witness’s memory are only admissible “for the limited purpose of impeaching
the witness as to whether the item in fact refreshes the witness’s recollection.” If the
report qualified as “past recollection recorded,” under Md. Rule 5-802.1(e), the report
could “not itself be received as an exhibit unless offered by an adverse party.”
A witness’s prior consistent statement may be admitted (1) under Md. Rule 5802.1(b), “to rebut an express or implied charge against the [witness] of fabrication, or
improper influence or motive;” and/or (2) under Md. Rule 5-616(c)(2), if the statement
“having been made detracts from the impeachment[.]” These rules, however, become
applicable only if “the defendant’s opening statement and/or cross-examination of a
State’s witness has ‘opened the door’ to evidence that is relevant (and now admissible) for
the purpose of . . . rehabilitation[.]” Johnson v. State, 408 Md. 204, 226, 969 A.2d 262,
275 (2009). (Emphasis in original).
In United States Fidelity & Guaranty Co. v. Continental Baking Co., 172 Md. 24,
190 A. 768 (1937), after a plaintiff’s witness was cross-examined about a written
statement that he had given to a “representative” of the plaintiff, the plaintiff offered that
statement into evidence. While affirming the ruling that the cross-examination had
“opened the door” to the introduction of the statement, this Court stated:
[T]he only purpose it could serve the plaintiff, except for its
effect on the jury, was to set the witness fairly before the jury
and tend to relieve him of the imputation that he was not
telling the truth, as might be implied from the questions put to
him on cross-examination. It was only the demand of the
defendant that entitled the plaintiff to offer the statement
12
in evidence. . . . The plaintiff could not have offered it at
all, had it not been brought into the case by the
defendant’s demand.
Id. at 32, 190 A. at 771-72. (Emphasis supplied).
In Shpigel v. White, 357 Md. 117, 741 A.2d 1205 (1999), this Court held that,
“although in many cases emergency room records, when authenticated and pathologically
germane, may be readily admitted pursuant to Rule 5-803(b)(6), under the
facts of this case the circuit court did not abuse its discretion in ruling that the discharge
instructions [given by an examining physician to a plaintiff/appellant] were not
admissible.” Id. at 140, 741 A.2d at 1217. Our opinion in Shpigel included the following
analysis:
Somewhat analogous to the instant matter is
Chadderton v. M.A. Bongivonni, Inc.,101 Md. App. 472, 647
A.2d 137 (1994). Chadderton was a workers' compensation
case in which the insurer and the Subsequent Injury Fund
succeeded in placing in evidence in the circuit court copies of
the reports rendered to them by the physicians to whom they
had referred the claimant for the purpose of obtaining an
opinion on the nature and extent of disability. Closely
following the analysis in Yates v. Bair Transport, Inc., 249 F.
Supp. 681 (S.D.N.Y. 1965), the Court of Special Appeals held
that the reports were inadmissible.
***
The Court of Special Appeals in Chadderton, applying
the Yates rationale, held that the reports rendered by
physicians to whom the claimant had been referred by the
workers' compensation insurer and the Subsequent Injury
Fund were not admissible when introduced by the parties who
had arranged for those reports, essentially for a lack of
13
trustworthiness. Chadderton, 101 Md. App. at 483-84, 647
A.2d at 142. Erroneously admitting the reports was held to be
prejudicial, because the plaintiff was unable to cross-examine
the physicians whose opinions were introduced in report form.
Id. at 486, 647 A.2d at 144. Thus, although the circuit court in
Chadderton had been persuaded that the reports were
admissible under a section of the Workers' Compensation Act
stating that "'the proceedings in an appeal shall be informal
and summary,'" id. at 479, 647 A.2d at 140, and although the
circuit court had found the reports to be sufficiently
trustworthy, the Court of Special Appeals focused only
on the trustworthiness aspect of that ruling. The appellate
court in effect held that the circuit court had abused its
discretion in concluding that the reports were trustworthy.
Id. at 132-134, 741 A.2d at 1213-14 (1999).
Our opinion in Shpigel also cited with approval the case of Kelly v. HCI Heinz
Construction Co., 668 N.E.2d 596 (Ill. App. 1996), appeal denied, 675 N.E.2d 634 (Ill.
1996), in which the Court of Appeals of Illinois affirmed the trial court’s ruling excluding
the records of a treating physician that had been prepared in anticipation of litigation. 668
N.E.2d at 600.
In the case at bar, in which the investigating officers referred Brittany to Dr. Boos,
Dr. Boos’ report to Detective Carin was inadmissible hearsay when offered to establish
Brittany’s state of mind at the time of her interview. We are therefore required to order a
new trial unless we are “persuaded beyond a reasonable doubt that [the inadmissible
evidence admitted over Petitioner’s objection] did not contribute to the guilty verdict[s]
returned against [him].” Dorsey v. State, 276 Md. 638, 659, 350 A.2d 665, 678 (1976).
Whether the erroneous evidentiary ruling in the case at bar is “harmless beyond a
14
reasonable doubt” can be determined by examining the use that the State made of Dr.
Boos’ report. The record shows that Dr. Shukat’s testimony was based entirely upon that
report.3 The record also shows that the prosecutor’s summation included the following
arguments:
How else do we know that Brittany is telling the truth in this
case? We heard expert testimony from Dr. Shukat. She said that
she had conducted exams on thousands of children and what she
told you, ladies and gentlemen, is that in a case involving abuse
that occurred where the abuse is oral sex, that we wouldn't
expect to find physical findings. She did tell you, however, that
the painful urination that Brittany said she was experiencing in
the days after the abuse, that that is consistent with somebody
performing oral sex upon her. She talked to you about these and
why a child would not be able to conclusively say a specific date
when abuse occurred, and she told you that this was common in
her field, that often times children delay in disclosure because,
number one, it's a painful memory and they're trying to suppress
it, but also because they have had an express or implied threat.
In this case, we know there was an express threat. He told her
that if she told somebody, something bad was going to happen.
When asked about whether or not the detail that Ms.
Brittany B[] provided, whether or not that was consistent with
a child who had been exposed to pornography, Dr. Shukat told
us that it was. She told us that the detail that Brittany B[]
provided went beyond her developmental age. A child who had
been exposed to pornography would not have the detailed
accounts that the victim gave about how ejaculation occurred,
more importantly, what the consistency of semen is. You'll recall
that Brittany B[] described the semen's consistency as being
gooey.
The State had the opportunity to - - but did not - - ask Dr. Shukat to base her
opinions on Brittany’s testimony, or on Brittany’s (admissible) out-of-court statement to a
licensed social worker.
3
15
Dr. Shukat also told you that a victim of child abuse who
had been exposed to pornography would not know that genital
pain resulted from those sexual acts, and the fact that Brittany
disclosed that she suffered genital pain, that that was not
consistent with her watching pornography.
The examination that was given at the Tree House by Dr.
Boos also corroborates the abuse that occurred. You're going to
be able to look at that document and you're going to be able to
look at the statements that Ms. Brittany B[] gave. And she stated
when he, the defendant, "licked my private part, he pressed
down too hard," and after he pressed down too hard, it burned
for her to urinate. She also corroborated what she told you on
the stand, which is that, "When my grandmother, and my
mother, and my aunt go out, Uncle Wayne tells me to come to
his room and makes me suck his private part."
She also corroborated the disclosure about the
cunnilingus. She said, "Uncle Wayne licked my private part,"
and she also corroborated that the defendant had threatened her.
The defendant told her he didn't want her to tell anyone and if
she did, bad things were going to happen to her.
Under these circumstances, we are unable to declare that the erroneous reception
of Dr. Boos’ report was harmless beyond a reasonable doubt. Petitioner is therefore
entitled to a new trial.
JUDGMENT OF THE COURT OF SPECIAL
APPEALS REVERSED; CASE REMANDED
TO THAT COURT WITH DIRECTIONS
THAT THE JUDGMENT OF THE CIRCUIT
COURT FOR MONTGOMERY COUNTY BE
VACATED, AND THE CASE BE
REMANDED FOR A NEW TRIAL; COSTS
IN THIS COURT AND IN THE COURT OF
SPECIAL APPEALS TO BE PAID BY
MONTGOMERY COUNTY.
16
IN THE COURT OF APPEALS
OF MARYLAND
No. 92
September Term, 2010
WAYMON ANDERSON
v.
STATE OF MARYLAND
Bell, C.J.
Harrell
Battaglia
Greene
Murphy
Adkins
Barbera,
JJ.
Dissenting Opinion by Adkins, J.,
which Harrell, J., joins.
Filed:
July 13, 2011
Most respectfully, I dissent from the majority opinion because it seems to superimpose
an additional requirement on the Maryland Rule 5-803(b)(4) hearsay exception, i.e., that
there be an explicit statement from the child that she understood why she was referred to the
health care provider. Although I do not dispute that the pertinent inquiry in deciding whether
to admit such evidence is whether the patient believed that the health care provider was going
to diagnose or treat her, I think that the trial judge may make such determination based on
the circumstances of the medical examination, without an explicit statement from the patient.
See United States v. Edward J., 224 F.3d 1216, 1220 n.3 (10th Cir. 2000) (evidence other
than the express testimony of the victims sufficiently indicated that they understood the
evaluation was for medical purposes, specifically, the victims’ ages (eight and ten), the
frequency with which the victims had been to that medical clinic before, and the level of
maturity demonstrated by their request for a female physician); United States v. Pacheco, 154
F. 3d 1236 (10th Cir. 1988) (evidence that physician explained to victim why she was being
evaluated and the process for such evaluation, including showing the child the medical
instruments, was sufficient to admit the victim’s statements even though the victim did not
expressly testify that she knew the procedure was for medical purposes). Although the State
has the burden to establish that the medical examination exception applies, that burden can
be satisfied from the content of the medical report itself.
In this case, the child victim was taken to the “Tree House Child Assessment Center
For Montgomery County” after her release from Holy Cross Hospital on April 28, 2008, the
same day she reported the sexual abuse to the police. Dr. Boos “reminded her that [he] was
a doctor and we needed to talk about doctor things,” and that she should “never lie to [him]
because if [he] made a decision based on the lie, [he] might not take proper care of her[.]”
This case contrasts with the circumstances in State v. Coates, 405 Md. 131, 143-45, 950 A.2d
114, 122–23 (2008), where the child’s question—“are you going to go out and find him
now?”—indicated that she thought the examination was part of an investigation rather than
an assessment for medical purposes. In that case we agreed with the Court of Special
Appeals that the trial court had erred in admitting the hearsay statement.1 In my opinion, the
advisements given by Dr. Boos to the child, the occurrence of the examination on the same
day that she visited the hospital, and other circumstances evident to the trial judge, were
sufficient to justify the judge’s conclusion that the hearsay statements fell within the medical
examination exception, and thus its admission did not constitute an abuse of discretion.
Judge Harrell authorizes me to state that he joins in this dissenting opinion.
1
Coates instructed that a statement made by a child sexual assault victim to a physician
or other health care provider in connection with medical examination or treatment, which has
some value for that purpose, is admissible under this exception even though the health care
provider had the dual motive of diagnosis/treatment and utilizing the examination for
forensic purposes in connection with the assault. See State v. Coates, 405 Md. 131, 143-45,
950 A.2d 114, 122–23 (2008). The Court in Coates emphasized that “a declarant’s
statements about the cause of an injury or identity of a culprit must be related to diagnosis
or treatment to be admissible.” Id. at 146, 123–24. It cautioned, moreover, that the exception
“does not apply to cases in which a non-treating physician is merely preparing to testify on
the patient’s behalf.” Id. at 142, 950 A.2d at 121.
2
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