Wednesday, July 2, 2008
Three Is The Magic Number: Supreme Court Of Rhode Island Affirms Hearsay Ruling, Despite 2/3 Of Trial Court's Grounds Being Wrong
The recent opinion of Supreme Court of Rhode Island in State v. Barkmeyer, 2008 WL 2468804 (R.I. 2008), contains lengthy discussions of a number of interesting legal issues, but I will focus on the three evidentiary issues addressed by the court. Here are the (very) condensed facts of the case:
While bathing her eight-year-old daughter, Jane, Jennifer Barkmeyer noticed blood in the child's underwear and called her daughter's pediatrician for an appointment. The pediatrician thereafter examined Jane and found bruising in her vaginal area, and, suspecting sexual abuse, notified the Department of Children, Youth and Families (DCYF) about his suspicion that Jane had been molested. Jane's stepfather, Ronald Barkmeyer, accompanied Jane to a meeting with DYCF child-protective investigator Laurie Houle at a hospital. According to Houle, during her conversation with Jane, the child pointed to Ronald and said that he had caused her injuries while her mother was at work.
Ronald was subsequently charged with first-degree child molestation sexual assault. When the prosecution sought to have Houle testify concerning Jane's statement to her, defense counsel objected that these statements constituted inadmissible hearsay. The trial judge overruled this objection, finding that the statement was admissible: (1) under the medical-diagnosis-and-treatment-hearsay exception [Rhode Island Rule of Evidence 803(4)]; (2) as an identification of an assailant [Rhode Island Rule of Evidence 801(d)(1)(C); and (3) as a prior consistent statement, [Rhode Island Rule of Evidence 801(d)(1)(B)], to rebut an implied charge of improper influence. After Ronald was convicted, he appealed, contending, inter alia, that the trial judge erred in allowing Houle to testify concerning Jane's statement. His appeal eventually reached the Rhode Island Supremes, who affirmed his conviction, despite finding that the first two hearsay exceptions cited by the trial judge were inapplicable. Why?
First, according to Rhode Island Rule of Evidence 803(4) -- the medical-diagnosis-and-treatment-hearsay exception -- "[s]tatements made for purposes of medical diagnosis or 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 diagnosis or treatment, but not including statements made to a physician consulted solely for the purposes of preparing for litigation or obtaining testimony for trial" are admissible as an exception to the rule against hearsay. The Court presumably found this exception to be inapplicable because it accepted Ronald's argument that Jane's statement "was not for the purpose of medical diagnosis or treatment," a holding that seems consistent with prior precedent in which the same court "assume[d] without deciding" that Rule 803(4) does not apply to statements made to DCYF investigators. See In re Nicole B., 703 A.2d 612, 616 (R.I. 1997).
Second, according to Rhode Island Rule of Evidence 801(d)(1)(C), "[a] statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...one of identification of a person made after perceiving the [person]." The Court presumably found this Rule to be inapplicable because it accepted Ronald's argument that "identification was not an issue in the case." Again, this ruling appears to be correct although I found no Rhode Island precedent on point.
To wit, take the opinion of the Supreme Court of Minnesota in State v. Robinson, 718 N.W.2d 400 (Minn. 2006). There, the Court found that the trial court erred in admitting statements made by a woman to two hospital nurses identifying her boyfriend as her assailant. The Court noted that there is
"an important distinction between an 'identification' of an unknown offender, which is covered by Rule 801(d)(1)(C), and an 'accusation' of a known offender, which is not....The rationale behind the rule 'stems from the belief that if the original identification procedures were conducted fairly, the prior identification would tend to be more probative than an identification at trial....'This rationale applies to cases involving the prior identification of an unknown offender, where the in-court identification is so highly suggestive that it would be misleading if the jury were allowed to believe that this was the witness's only identification of the offender. Rule 801(d)(1)(C) was adopted to remedy this unique problem. But in the case of a known offender, we see no reason to prefer a witness's out-of-court accusation over his or her in-court accusation. We hold that Rule 801(d)(1)(C) does not extend to the out-of-court accusation against an offender whose identity was well-known to the victim."
This left the Supreme Court of Rhode Island with only the prior consistent statement rule as a possible ground for admitting Jane's statement. Luckily for the Court, the shoe fit. According to Rhode Island Rule of Evidence 801(d)(1)(B), "[a] statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive."
The Court found that this Rule applied because Jane identified her stepfather as her assailant at trial and because: "During defense counsel's earlier cross-examination of Jane, defense counsel elicited from Jane that she met with the prosecution 'to go over and practice what [she was] going to say in court' and implied that the state suggested the answers she would give about what happened. Defense counsel also questioned Jane about her fantasizing and making up stories during her counseling sessions." The Court found that defense counsel thus at least impliedly charged that Jane was lying based upon her meetings with prosecutors and her counselor, allowing for the admission of her statement to the DYCF investigator, which pre-dated those meetings and which was consistent with her trial testimony.