Appeal from the Superior Court in Maricopa County No. CR2011-143399-001 The Honorable Connie Contes, Judge
Arizona Attorney General's Office, Phoenix By Craig W. Soland Counsel for Appellee
Janelle A. McEachern Attorney at Law, Chandler By Janelle A. McEachern Counsel for Appellant
Chief Judge Diane M. Johnsen delivered the opinion of the Court, in which Presiding Judge Peter B. Swann and Judge Patricia K. Norris joined.
¶1Odece Dempsean Hill was convicted of sexually assaulting a teenage girl, based in part on the testimony of a forensic nurse who related what the victim had told her in the emergency room three hours after the attack. The victim died before Hill was brought to trial, and he argued the nurse's testimony violated his rights under the Confrontation Clause of the United States Constitution. Guided by recent United States Supreme Court cases, we conclude the superior court did not err by admitting the testimony because the victim's statement was not testimonial.
FACTS AND PROCEDURAL HISTORY
¶2 Three assailants forced their way into a Mesa apartment early one morning in 2001, and one or more of them sexually assaulted a pregnant teenage girl. Shortly after the assailants departed, the victim was taken to an emergency room in premature labor. There a registered nurse trained to perform forensic medical examinations examined her. The nurse provided medical care and also collected samples of biological evidence using a rape kit. The biological evidence collected from the victim matched DNA samples taken from the crime scene, leading to Hill's arrest ten years later.
¶3 Before Hill was brought to trial, the victim died from causes unrelated to the assault, and the State moved in limine to allow the nurse to testify about her examination of the victim and a statement the victim made to her at the outset of the examination. Over Hill's objection that the testimony would violate the Confrontation Clause, the superior court granted the State's motion.
¶4 At trial, the nurse testified that forensic nurses are registered nurses specially trained to perform forensic medical examinations of crime victims. She testified her examination of the victim had two components -providing medical care and collecting DNA evidence and other evidence of the assault. Before seeing the victim, the nurse spoke with a law enforcement officer to obtain basic demographic information about the victim and to learn why a forensic examination was called for, but no officer was present during the examination. The nurse documented the results of the examination on a form titled "Sexual Assault Examination Report" that provided step-by-step instructions for collecting evidence and required her to record the victim's medical and "assault history" and where on the victim's body she collected evidence. The nurse identified herself on the form as the "examiner" and the Mesa Police Department as the "agency involved." According to the form, the assault occurred at 2 a.m.; the examination began at 5 a.m. In addition to noting the manner and location of the various assaults the victim identified, the nurse recorded the victim's vital signs and the nature and location of pain she described. The nurse also recorded other elements of her physical examination of the victim, including, for example, neurological signs (the victim was "oriented"), and her breath and bowel sounds.
¶5 The nurse testified she began the examination by asking the victim about her medical history and any sexual assault that had occurred. Obtaining an assault history, she explained, is "part of normal nursing care and it guides my treatment. It tells me what I'm going to do or not do." She further testified that, although part of her job as a forensic nurse is to collect evidence from the victim, "my job is to be a nurse first." She stated:
I start out by explaining the process to my patient and getting consent from him or her in order to perform the exam. And the process is I obtain a history from my patient for the purpose of diagnosis and treatment. . . . And then I do a head to toe exam. And I do that looking for injury or trauma. And depending on what they told me in history, or detail, I do a genital exam looking for injury or trauma. And throughout the entire process I collect evidence using generally swabs off their bodies.
¶6Asked how she obtained an assault history from the victim, the nurse replied that she asked a "completely open-ended question. . . . I say tell me why you're here." In response to that question, the victim provided a graphic account of several assaults, which the nurse wrote down and read at trial:
[H]e held a gun to my head, shoved his hand into me, then he put his D in my mouth, his dick. The other guy tried to [p]ut his D in my buttocks, pulled my legs apart trying to put his D in me the other way. I sucked him off but he ha[d] sex with me, put his dick in my vagina. Then the other guy too had me suck him off; had sex with me in the ...