This split court of appeals opinion, which is recommended for publication, has “petition granted” written all over it. Crawford v. Washington, 541 U.S. 36, 68 (2004) held that a trial court violates a defendant’s right to confrontation when it receives into evidence out-of-court statements by someone who does not testify at trial, if the statements are “testimonial” and if the defendant has not had an opportunity to cross-examine the declarant of the statement. Yet in this case, the court of appeals holds that Nelson’s confrontation rights were not violated when the circuit court admitted a “Sexual Abuse Evaluation” requested by the police for the purpose of collecting evidence even though the author of the evaluation did not testify at trial.
Nelson was convicted of multiple crimes, including 2nd-degree sexual assault of J.T., a 17-year-old. Hours after the assault a Sexual Assault Nurse Examiner examined her and prepared a report. The S.A.N.E. testified at trial that she did not know how J.T. sustained injuries to her vaginal area. They could have been caused by a consensual act or a non-consenual act.
Eleven days later, at the request of police, a nurse practitioner (Rite Kadamian) examined J.T. again and prepared a Sexual Abuse Evaluation. Unlike the S.A.N.E, the nurse’s report stated that J.T.’s vaginal injuries “were consistent with penetrating blunt force trauma.” Opinion, ¶11. Also unlike the S.A.N.E., Kadamian did not testify at trial because she was on medical leave. Michael Cahill, a different nurse practitioner testified to her report. Defense counsel did not object
To determine an out-of-court statement is testimonial under Crawford, a court must decide whether its primary purpose was to gather evidence for the prosecution. The court must consider (1) the formality/informality of the situation producing the statement; (2) whether the statement was given to law enforcement; (3) the age of the declarant; (4) the context in which the statement was given. State v. Mattox, 2017 WI 9, ¶32, 373 Wis. 2d 122, 890N.W.2d 256 (citing Ohio v. Clark, 135 S. Ct. 2173, 2180 (2015)). Opinion, ¶29.
Applying these factors, the majority opinion (by Gundrum with Davis) held that Kadamian’s report was not testimonial. It was created 11 days after the assault by a nurse who may not have been a S.A.NE. (the record is unclear) for the primary purpose of documenting J.T.’s health, treating her existing conditions, and recommending a health care plan for her. Opinion, ¶¶30-38. It noted that the absence of evidence that Kadamian received training on collecting evidence. And no victim advocate or officer was present for the examination. Opinion, ¶43-45.
The dissent also applied the Mattox factors but reached the opposite result. It noted that Kadamian was sexual abuse examiner based on the fact that police asked her to perform a “Sexual Abuse Exam” and to collect evidence. She conducted the exam in a formal setting at Child Advocacy and Protection services. The report was given to the police. And it stated that J.T.’s contusion was acute and supported her disclosure of sexual assault. Opinion, ¶¶82-83. Even the prosecutor understood the testimonial nature of the report. She informed the jury that Kadamian conducted an examination and collected evidence for the State. Dissent, ¶87.
Because trial counsel did not object to Cahill’s testimony about Kadamian’s report, appellate counsel raised the issue as “plain error,” a doctrine allowing the appellant to raise an unpreserved error on appeal. SCOW recently explained and applied the doctrine favorably for the defense in State v. Jorgensen, 2008 WI 60, 310 Wis. 2d 138, 754 N.W.2d 77.
As the majority opinion held that the admission of Kadamian’s statements did not violate the Confrontation Clause there was no error–plain or otherwise. Opinion, ¶¶46-47. Again, dissent reached the opposite conclusion. Dissent, ¶¶83-88.
In a concurrence, Davis tried to assure the bench and the bar that the result in this case was a one-off and in general testimony by an examining nurse in a sexual assault case should be considered testimonial. Concurrence, ¶62. However, by publishing this decision the majority has likely ensured the result is the rule, not the exception. Hopefully, SCOW will grant review and reverse.
Davis, walking onto a shaky limb alone, was disturbed by trial counsel’s failure to object to Cahill’s testimony and appellate counsel’s decision to raise the issue as a “plain error” rather than as ineffective assistance of counsel. Davis surmised that a Machner hearing would have revealed that trial counsel had a strategic reason for not objecting (i.e. hearsay is weaker than live testimony). He argued that: “For important policy reasons, we should not entertain claims of plain error where the alleged error may, in fact, have stemmed from a reasonable and deliberate choice by defense counsel.” Concurrence, ¶72.
There are so many problems with that statement. Just one of them is the fact that appellate lawyers have an ethical duty to represent their clients zealously and to provide effective assistance of counsel. If an appellate lawyer sees an unpreserved error but believes a Machner hearing won’t help the client (or worse, potentially expose him to risks that may or may not be apparent from the record), the appellate lawyer can’t plow ahead with an IAC claim and hearing to assuage the court of appeals’ potential curiosity about why trial counsel failed to object. That would amount to ineffective assistance of appellate counsel.