STATE OF LOUISIANA v. IN RE STATE OF LOUISIANA (2014)

WRIT DENIED; STAY DENIED

The Relator, the State of Louisiana, seeks review of the trial court's June 18, 2014 ruling excluding certain portions of the victim's medical records and three of the victim's hand written letters. The Relator's writ is denied. The Relator's motion to stay is denied as moot.

I respectfully dissent from the majority's denial of the State of Louisiana's writ application. The State seeks review of the trial court's June 18, 2014 ruling that excludes portions of the victim's medical records and three of the victim's handwritten letters. I would grant the writ and reverse, in part, the trial court's ruling.

Defendant, David Koederitz, and Traci Powell, the victim, lived together for approximately two years and had a daughter together. Their relationship ended in August of 2012. On February 19, 2013, Powell went to defendant's residence. An argument ensued, and defendant became angry, threw Powell on his bed and punched her numerous times, causing severe injuries. The victim attempted to leave the residence, but defendant prevented her from doing so until her injuries healed. He locked the victim inside in his residence from that Tuesday night until Friday, February 22, when he finally let her go. The victim went to Ochsner Hospital to be treated for her injuries, which included a fractured nasal bone and facial contusions. On March 14, 2013, the victim reported the incident to the police and a warrant was issued for the defendant's arrest. The defendant was not arrested on the outstanding warrant until almost a year later on January 3, 2014. The State noted that the victim took her life at some point between February and May of 2014, alleging that the victim committed suicide after “having battled depression associated with the long-term abuse she suffered at the hands of the defendant.”

On February 10, 2014, the State charged defendant, with second degree battery, a violation of La. R.S. 14:34.1, and false imprisonment, a violation of La. R.S. 14:46. Defendant pled not guilty. On May 13, 2014, the State filed a notice of intent to introduce other crimes evidence pursuant to La. C.E. art. 404(B) and State v. Prieur, 277 So. 2d 126 (La. 1973). Specifically, the State sought to introduce evidence of prior acts of violence committed by the defendant upon the victim. The State contends that the victim had recorded several of these incidents in handwritten letters and also informed Ochsner's medical personnel that the February 19, 2013 incident was not the first incident of physical abuse by the defendant. Defendant filed a motion in limine to exclude the victim's medical records and inadmissible hearsay and the Prieur evidence.

Following a hearing on June 18, 2014, the trial court granted defendant's motions to exclude portions of the victim's medical records and the handwritten letters. The court found that the introduction of the medical records and the victim's statements contained therein did not qualify as statements for medical diagnosis under La. C.E. art. 803(4) and that their introduction would violate defendant's confrontation rights under the Sixth Amendment of the United States Constitution and Article 1, Section 16 of the Louisiana State Constitution. The court found that the victim's handwritten letters were inadmissible under La. C.E. art. 404(B) because (1) the letters do not prove by clear and convincing evidence that the defendant committed the prior acts of abuse, (2) the prior acts of abuse are not sufficiently similar, and (3) the probative value of the prior beating is substantially outweighed “by any prejudicial effect.”

Generally, evidence of criminal offenses other than the offense being tried is inadmissible as substantive evidence because of the substantial risk of grave prejudice to the defendant. State v. Hills, 99-1750, p. 5 (La. 5/16/00), 761 So. 2d 516, 520. Under La. C. E. art. 404(B)(1), other crimes evidence “is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” However, the evidence may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence or mistake or accident, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceedings. La. C. E. art. 404(B)(1). Although evidence of other crimes, wrongs, or acts may not be admitted to prove the accused is a person of criminal character, evidence of other crimes has long been admissible if the state established an independent and relevant reason for its admission. State v. Garcia, 2009-1578, p. 53 (La. 11/16/12), 108 So. 3d 1, 38 (citing State v. Anderson, 45 La. Ann. 651, 654, 12 So. 737, 738 (1893)). Thus, to be admissible under Article 404(B)(1), evidence of the defendant's prior bad acts must meet two criteria: (1) it must be relevant to some issue other than the defendant's character, and (2) its probative value must be greater than its potential to unfairly prejudice the jury. See La. C.E. arts. 403 and 404(B). The trial court's ruling on the admissibility of evidence of other crimes will not be overturned absent an abuse of discretion. Garcia, 2009-1578 at p. 55, 108 So. 3d at 39.

Medical records

The State contends the victim's medical records are admissible under La. C.E. art. 803(4). Specifically, the State argues that the statements made by the victim of domestic abuse to her treating physician identifying the perpetrator are admissible hearsay as statements for medical diagnosis because the victim and her abuser have a relationship such that the abuser's identity is reasonably pertinent to the victim's proper treatment.

Louisiana C.E. art. 803(4) provides:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

․

(4) Statements for purposes of medical treatment and medical diagnosis in connection with treatment. Statements made for purposes of medical treatment and medical diagnosis in connection with treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to treatment or diagnosis in connection with treatment.

Furthermore, La. R.S. 13:3714 establishes an additional exception to the hearsay rule for certified copies of hospital records. It provides:

Whenever a certified copy of the chart or record of any hospital, signed by the administrator or the medical records librarian of the hospital in question, or a copy of a bill for services rendered, medical narrative, chart, or record of any other state health care provider, as defined by R.S. 40:1299.41 (A)(1), certified or attested to by the state health care provider or the health care provider, is offered in evidence in any court of competent jurisdiction, it shall be received in evidence by such court as prima facie proof of its contents, provided that he party against whom the bills, medical narrative, chart, or record is sought to be used may summon and examine those making the original of the bills, medical narrative, chart, or record as witnesses under cross-examination.

“Under [La. C.E. art. 803(4)], the use of hearsay history of a case as told to a physician by a patient is admissible if received, not to show the truth of the facts stated, but only the basis of the physician's opinion. All of the hearsay evidence not necessary to the diagnosis is inadmissible.” State v. Juniors, 2003-2425, p. 43, 915 So. 2d 291, 325 (citing State v. Watley, 301 So. 2d 332 (La. 1974)).

A review of the Louisiana jurisprudence does not indicate that either the Louisiana Supreme Court or this court has considered the admissibility of statement made by a victim of non-sexual domestic violence to a treating physician under La. C.E. art. 803(4). However, this court and other circuits have allowed statements by sexual assault victims to a treating physician under La. C.E. art. 803(4). See State v. Williams, 2012-0252 (La. App. 4 Cir. 4/17/13), 115 So. 3d 600 ¹ (court concluded that statements by a juvenile rape victim to the forensic pediatrician that identified the defendant as her abuser and explained in detail the acts perpetrated against her were made for purposes of medical treatment and medical diagnosis in connection with treatment); State v. Bennett, 591 So. 2d 783, 785 (La. App. 4th Cir. 1991) (court found that a rape victim's statement that she had been raped and, more specifically, that she had been held by the neck and forced to sit on her assailant's penis were reasonably pertinent to the treatment and/or diagnosis); see also State v. Morgan, 45,110, pp. 26-27 (La. App. 2 Cir. 4/14/10), 34 So. 3d 1127, 1143 ² (court held that a statement by a hospital physician that a rape victim reported to the hospital because she had been sexually assaulted was an exception to the hearsay rule because it was made for the purpose of medical treatment and diagnosis); and State v. Thom, 615 So. 2d 355, 363 (La. App. 5 Cir. 1993) (the court allowed an emergency room nurse at a hospital where a rape victim was treated to testify concerning statements the victim made concerning her complaints and how her physical and sexual attack occurred, because the statements were pertinent to the diagnosis of the victim's physical and psychological condition and the type of trauma which the victim suffered).

Federal courts and other state court have admitted the testimony of psychologists and physicians concerning statements made by patients regarding the identity of the perpetrator, as long as such statements are reasonably pertinent to the treatment or diagnosis of sexual abuse and/or domestic violence. In United States v. Joe, 8 F.3d 1488 (10th Cir. 1993), the defendant was convicted of first degree murder of his estranged wife. The government presented testimony from the victim's physician that, eight days before her murder, the doctor treated her for an alleged rape and that she had identified her assailant as the defendant.” Id. at 1491. The doctor further testified that the victim “stated she was ‘afraid sometimes' because [the defendant] suspected her of having an extramarital affair and had threatened to kill her if he caught her with another man.” Id. The United States Court of Appeal for the Tenth Circuit found the statements admissible as statements for medical diagnosis, noting that the abuser's identity is admissible ‘where the abuser has such an intimate relationship with the victim that the abuser's identity becomes ‘reasonably pertinent’ to the victim's proper treatment.” Id. at 1495. The Court noted that “the treating physician may recommend special therapy or counseling and instruct the victim to remove herself from the dangerous environment by leaving the home and seeking shelter elsewhere.” Id.

In Moore v. City of Leeds, 1 So. 3d 145, 147 (Ala. Crim. App. 2008), the defendant was charged with domestic violence in the third degree based on the underlying offense of assault. The victim's treating physician testified that the victim “was complaining of pain in her nose, recurring nosebleeds and ‘a deviation in her external nose.’ ” Id. at 150. The doctor testified the victim told him she had broken her nose “when she was in an automobile and had an altercation with her husband while they were driving.” Id. The court, citing Joe, supra, found that the victim's statements to the doctor “concerning the cause of her injuries were admissible” under the statement for medical diagnosis exception. Id. The court found that the rationale behind the admissibility of statements regarding the identity of a perpetrator of child sex abuse “would also apply to victims of domestic violence.” Id.; see also People v. James, 19 A.D. 3d 616, 617 (N.Y. App. Div. 2005) (court properly admitted decedent's hospital records pertaining to a prior assault at the hands of defendant during defendant's murder trial: “the statements made by the decedent ․, and as testified to at trial by the nurse who treated decedent, were germane to the decedent's then medical diagnosis and treatment.”); People v. Ortega, 15 N.Y. 3d 610, 942 N.E. 2d 210 (2010) (medical records' description of case involving “domestic violence” and reference to “safety plan” for victim were relevant to diagnosis and treatment of victim).

In the instant case, the medical records are certified, and thus meet the hearsay exception provided by La. R.S. 13:3714. Relevant statements made by treating physicians within the records, (such as observations of the victim's physical, emotional state, etc.) are, therefore, presumed admissible. La. C.E. art. 402. At issue is which of the victim's statements recorded by the various medical professionals are admissible pursuant to a hearsay exception. The defense, in its motion in limine, challenges any statement contained in the records that would (a) tend to show that the victim was a victim of domestic violence, and (b) explain how and by whom she was abused. However, as previously mentioned, when the victim and defendant have an intimate relationship such that the abuser's identity becomes “reasonably pertinent” to the victim's proper treatment, statements identifying the perpetrator as well as all other relevant statements for medical diagnosis are admissible. The victim in this case had an ongoing and tumultuous relationship with the defendant, her former boyfriend and the father of her child. This fact was, at the least, reasonably pertinent to the victim's treatment due to past trauma inflicted on the victim by the defendant. The medical professionals' treatment of the victim, including that of her psychiatrist, Dr. Anderson, was predicated upon this fact. As such, the victim's statements identifying the defendant as her abuser to medical personnel were reasonably pertinent to her treatment, and thus are admissible under La. C.E. art. 803(4).

The trial court concluded that the admission of the victim's statements made to and recorded by the Ochsner medical professionals would violate the defendant's confrontation rights pursuant to Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). I disagree.

The United States Supreme Court in Crawford, supra, drew a distinction between testimonial and non-testimonial hearsay, and held that the Confrontation Clause applies only to testimonial statements. See Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed. 2d 224 (2006). “Courts have listed the following as examples of testimonial statements: affidavits, custodial examinations, depositions, prior testimony, confessions, or similar pretrial statements that declarants would reasonably expect to be used in a prosecution.” Morgan, 45,110, p.25, 34 So. 3d at 1142 (citing Crawford, supra; and State v. Leonard, 05-42 (La. App. 5 Cir. 7/26/05), 910 So. 2d 977. “The cases provide that statements made with no reasonable belief that they would later be used in a trial are not considered ‘testimonial’ in nature.” Id. at pp. 25-26, 34 So. 3d 1142. First report statements and statements made for diagnosis and medical treatment do not violate Crawford, supra, if they are non-testimonial. Id. at p. 26, 34 So. 3d at 1143.

According to the State's writ application, the victim is now deceased and thus unavailable to testify at trial. In order to present its case, the State seeks to present the statements made by the victim to medical personnel following the alleged attack and imprisonment. The statements made by the victim to the emergency room nurses, the emergency room physician and Dr. Anderson were made under inherently reliable circumstances and were made for the purpose of medical treatment and diagnosis and, thus, are admissible under the medical treatment and diagnosis exception of La. C.E. art. 803(4). The records indicate that the victim, at the time the statements were made, specifically intended not to report the defendant's actions to the police. Thus, I can only conclude that the statements are non-testimonial and do not violate Crawford, because they were made with no reasonable belief that they would later be used in a trial.

Letters

The State also contends that the three letters are admissible under La. C. E. art. 803(3), which provides:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

․

(3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), offered to prove the declarant's then existing condition or his future action. A statement of memory or belief, however, is not admissible to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's testament.

In State v. Magee, 2011-0574 (La. 9/28/12), 103 So. 3d 285, reh'g denied (11/30/12), cert. denied, 134 S. Ct. 56, 187 L.Ed. 2d 49 (2013), the defendant was convicted of the first-degree murder of his wife. At trial, the State called the victim's cousin, who testified she witnessed the victim type a letter “in which she [the victim] attempted to express her conflicted emotions.” Id. at p. 39, 103 So. 3d at 314. The letter was published to the jury, and the Supreme Court, analyzing the letter's admissibility under the “state of mind” exception to the hearsay rule, noted that the letter “can be broken down into parts: sections of the letter express [the victim's] existing state of mind regarding her relationship with the defendant and her determination to establish a life on her own; other sections look backward in time, reflecting on the last nine years of her life and the events that preceded and precipitated her breakup with the defendant.” Id. at p. 44, 103 So. 3d at 317. The court found that, “[a]s to those sections of the letter in which [the victim] expresses her then existing belief that the marriage was over and her desire to separate both physically and emotionally from the defendant, the statements are relevant and admissible under La. C.E. art. 808(3).” Id. However, the court determined that “the district court erred in admitting those sections of [the victim's] letter which recall the abuse, both physical and mental, she ostensibly suffered at the defendant's hands over the previous years of their relationship.” Id. at p. 45, 103 So. 3d 317.

Based upon a review of the three handwritten letters by the victim in this case, I find the trial court did not abuse its discretion in excluding the letters dated February 5, 2014 and August 14, 2013. The February 5, 2014 letter, which appears to be a diary entry, is testimonial hearsay, as the declarant refers to “going to court” and “talk[ing] to the D.A.” The August 14, 2013 letter, which the victim addressed to her friend, does not identify the defendant by name and recalls the past history of abuse, and thus would not be admissible under La.C.E. art. 803(3). However, assuming the January 17, 2012 letter, which is addressed to the defendant, is properly authenticated at trial, see La. C.E. art. 901, the portions of the letter where the victim expresses her then-existing mental, emotional, or physical condition are admissible and relevant to explain the nature of the victim's relationship with the defendant. I find the trial court abused its discretion to the extent it ruled the entire January 17, 2012 letter inadmissible.

Accordingly, for the above reasons, I would grant the State's writ application, reverse the trial court's June 18, 2014 ruling insofar as it ruled inadmissible the statements made by the victim to the medical professionals at Ochsner Hospital that were recorded in the medical records for purposes of medical diagnosis and medical treatment, as well as the letter written by the victim to the defendant dated January 17, 2012.

FOOTNOTES

1.   Writ denied, 2013-1141 (La. 11/22/13), 126 So. 3d 477.

2.   Writ denied sub. nom., State ex rel. Morgan v. State, 2010-1201 (La. 5/27/11), 63 So. 3d 992.

JUDGE ROSEMARY LEDET

DISSENTS IN PART WITH REASONS JUDGE JOY COSSICH LOBRANO JUDGE SANDRA CABRINA JENKINS