PER CURIAM:[fn*] [fn*] Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR R. 47.5.4.
Texas death row inmate Lee Andrew Taylor appeals the district court's denial of habeas relief. For the following reasons, we affirm.
I. BACKGROUND
In 1995, at the age of 16, Taylor robbed an elderly couple in their home in Houston, Texas. He was subsequently convicted of aggravated robbery and sentenced to a term of life imprisonment. While he was serving that sentence, Taylor came into possession of a "shank" — a prison-made stabbing implement — which he used against Donta Green during the morning of March 31, 1999. Taylor stabbed Green 13 times and inflicted numerous other scratch wounds; Green later died as a result.
Under Texas law, aggravated robbery includes, inter alia, the commission of robbery if the defendant "causes bodily injury to . . . or threatens or places . . . in fear of imminent bodily injury or death, . . . [a person] 65 years of age or older." TEX. PENAL CODE ANN. § 29.03(a)(3)(A).
Taylor was indicted for capital murder for intentionally or knowingly causing the death of an individual while serving a sentence of life imprisonment for aggravated robbery. See TEX. PENAL CODE ANN. §§ 19.02(b)(1), 19.03(a)(6)(B). Following a jury trial, Taylor was convicted and sentenced to death. On December 11, 2002, hearing the case on direct appeal, the Texas Court of Criminal Appeals (TCCA) affirmed. Taylor next sought post-conviction relief in the state trial court, which denied relief. On March 31, 2004, the TCCA, adopting the trial court's findings of fact and conclusions of law, similarly denied relief.
Section 19.02(b)(1) provides that a person commits murder by "intentionally or knowingly caus[ing] the death of an individual." TEX. PENAL CODE ANN. § 19.02(b)(1)-Section 19.03(a)(6)(B) provides that a person commits capital murder by "commit[ting] murder as defined under Section 19.02(b)(1) . . . while serving a sentence of life imprisonment . . . for an offense under Section . . . 29.03." TEX. PENAL CODE ANN. § 19.03(a)(6)(B).
Taylor next sought a writ of habeas corpus in federal district court. In his application under 28 U.S.C. § 2254, Taylor raised 14 issues that he claimed warranted relief. The district court dismissed all of Taylor's claims, see Taylor v. Thaler, No. 4:04-CV-150, 2009 WL 2833453 (E.D.Tex. Aug.31, 2009), but issued a certificate of appealability (COA) with respect to three of them. Those three claims raise essentially two issues: (1) whether using Taylor's aggravated robbery conviction — for an offense he committed as a minor — as the predicate for his capital murder conviction constitutes cruel and unusual punishment; and (2) whether admitting Taylor's prison disciplinary record during the sentencing phase of his capital murder trial violated his right to confront the witnesses against him. Taylor now appeals the denial of habeas relief on those three claims.
The three claims for which a COA was granted are articulated as follows:
1. Because he is actually innocent of the death penalty, his execution would constitute a miscarriage of justice and is therefore barred by the Eighth Amendment.
10. He was denied the right to confront witnesses by the trial court's admission of prison administrative records which contained testimonial hearsay.
11. Because Taylor was sixteen years old at the time he committed aggravated robbery, his death sentence, which was based in part on his conviction for that robbery, constitutes cruel and unusual punishment.
The district court concluded that Taylor's eleventh claim was "indistinguishable from Taylor's first claim" and denied it for the same reasons that it denied his first claim.
II. LEGAL STANDARDS
In an appeal from a district court's denial of habeas relief, we apply the same standards as the district court. Wooten v. Thaler, 598 F.3d 215, 218 (5th Cir. 2010). Taylor's habeas proceeding is subject to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See Pierce v. Thaler, 604 F.3d 197, 200 (5th Cir. 2010). Under AEDPA, we may not grant habeas relief:
with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
A state court decision is "contrary to" federal precedent if it applies a rule that contradicts the governing law set forth by the Supreme Court or if it involves a set of facts that are materially indistinguishable from a Supreme Court decision but reaches a result different from that Court's precedent.
Woodfox v. Cain, 609 F.3d 774, 789 (5th Cir. 2010) (citing
Woodward v. Epps, 580 F.3d 318, 325 (5th Cir. 2009)). "The relevant `clearly established federal law' is the law that existed at the time the state court's denial of habeas relief became final."
Pierce, 604 F.3d at 200 (citing
Abdul-Kabir v. Quarterman, 550 U.S. 233, 238, 127 S.Ct. 1654, 167 L.Ed.2d 585 (2007);
Williams v. Taylor, 529 U.S. 362, 390-94, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)).
III. DISCUSSION
As mentioned above, the district court granted Taylor a COA for each of three claims that he presented in his federal habeas petition. Two of those issues involve the Eighth Amendment's prohibition on cruel and unusual punishment, while the third involves the Sixth Amendment's Confrontation Clause. We first address the Eighth Amendment issues before turning to the Sixth Amendment issue.
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. CONST amend. VIII.
"In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . ." U.S. CONST amend. VI.
A. Cruel and Unusual Punishment
Taylor's Eighth Amendment arguments consist of two discrete theories. First, he claims that the Supreme Court's decision in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), forecloses the use of his prior aggravated robbery conviction as the predicate elevating his homicide offense from non-capital to capital murder because he was a minor when he committed the aggravated robbery offense. Second, he claims that Texas's capital scheme impermissibly expands the class of persons eligible for the death penalty to include persons who commit murder while serving a sentence of life imprisonment for aggravated robbery. The State urges that both claims were procedurally defaulted and are, in any event, meritless. We pretermit discussing the procedural defaults, as Taylor's "claim[s] can be resolved more easily" on the merits. See Busby v. Dretke, 359 F.3d 708, 720 (5th Cir. 2004).
1. Youthfulness
In Roper, the Supreme Court held that "[t]he Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed." 543 U.S. at 578, 125 S.Ct. 1183. Taylor urges that we should interpret Roper to reach the conclusion that his own "diminished moral culpability at 16 years of age, the time at which he committed aggravated robbery, should preclude use of that conviction and sentence as an aggravating factor thereby making him eligible for the death penalty."
We note that the TCCA entered a final denial of Taylor's state habeas petition on March 31, 2004, and that Roper was decided nearly a year later, on March 1, 2005. This raises the question whether Roper was "clearly established Federal law, as determined by the Supreme Court of the United States," at the time of the relevant state court decision, such that Roper can provide Taylor with a foundation for relief under AEDPA. Neither party raised this issue on appeal. In any event, as Taylor's claim fails on its merits, we need not decide that question today.
We conclude that Taylor's claim must fail because Roper does not clearly establish that he is ineligible for the death penalty. The Roper Court held only that "[t]he age of 18 is . . . the age at which the line for death eligibility ought to rest." 543 U.S. at 574, 125 S.Ct. 1183. In reaching this conclusion, the Court identified three ways in which juvenile offenders differed from adult offenders: (1) lack of maturity and underdeveloped senses of responsibility; (2) vulnerability to negative influences and outside pressure; and (3) less developed characters. Id. at 569-70. According to the Court, "[t]hese differences render suspect any conclusion that a juvenile falls among the worst offenders." Id. at 570. After recognizing "the diminished culpability of juveniles," id. at 571, the Court then analyzed whether the two recognized social purposes — retribution and deterrence — were furthered by allowing the death penalty for offenders under 18 years of age, id. at 571-72. The Court noted that "[r]etribution is not proportional if the law's most severe penalty is imposed on one whose culpability or blame-worthiness is diminished, to a substantial degree, by reason of youth and immaturity." Id. at 571. It further determined that "the same characteristics that render juveniles less capable than adults suggest as well that juveniles will be less susceptible to deterrence." Id. The Court concluded that "[w]hen a juvenile offender commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity." Id. at 573-74.
While the Roper decision clearly establishes that the death penalty may not be imposed as punishment for an offense committed as a juvenile, it does not clearly establish that such an offense may not be used to elevate murder to capital murder. Here, Taylor is not being punished again for his earlier crime but is instead being punished for a murder that he committed as an adult. See Cannady v. Dretke, 173 Fed.Appx. 321, 329-30 (5th Cir. 2006) (per curiam) (likening § 19.03(a)(6) to a constitutionally acceptable recidivist statute). Thus, the TCCA did not unreasonably apply federal law in concluding that Taylor's aggravated robbery conviction and corresponding life sentence rendered him eligible for the death penalty under § 19.03(a)(6)(B).
2. Overbreadth
Taylor also argues that Texas's capital-sentencing scheme fails to genuinely narrow the class of persons eligible for the death penalty. He contends that it is unconstitutional for Texas to authorize the death penalty in cases where a murder is committed by an inmate serving a life sentence for aggravated robbery but not where the same murder is committed by an inmate serving a life sentence for various other crimes. Taylor's argument is, essentially, that because there are other serious crimes that cannot serve as predicates for § 29.03(a)(3), the crime of aggravated robbery may not be so used.
"[T]he Constitution `does not mandate adoption of any one penological theory.'" Ewing v. California, 538 U.S. 11, 25, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (quoting Harmelin v. Michigan, 501 U.S. 957, 999, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring)). Instead, the Supreme Court has emphasized its long-standing "tradition of deferring to state legislatures in making and implementing such important policy decisions." Id. at 24, 123 S.Ct. 1179 (citing cases). This deference requires that the state have "a reasonable basis for believing" that an enhanced sentence "`advances the goals of its criminal justice system in any substantial way.'" Id. at 28, 123 S.Ct. 1179 (alterations omitted) (quoting Solem v. Helm, 463 U.S. 277, 297 n. 22, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983)). Where the death penalty is involved, the Supreme Court has articulated the following rule: "If a State has determined that death should be an available penalty for certain crimes, then it must administer that penalty in a way that can rationally distinguish between those individuals for whom death is an appropriate sanction and those for whom it is not." Spaziano v. Florida, 468 U.S. 447, 460, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984) (citing Zant v. Stephens, 462 U.S. 862, 873-80,103 S.Ct. 2733, 77 L.Ed.2d 235 (1983); Furman v. Georgia, 408 U.S. 238, 294, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Brennan, J., concurring)); accord Kansas v. Marsh, 548 U.S. 163, 173-74, 126 S.Ct. 2516, 165 L.Ed.2d 429 (2006) ("[A] state capital sentencing system must: (1) rationally narrow the class of death-eligible defendants; and (2) permit a jury to render a reasoned, individualized sentencing determination. . . . So long as a state system satisfies these requirements, our precedents establish that a State enjoys a range of discretion in imposing the death penalty. . . ." (internal citation omitted)).
Consistent with these principles, we addressed the constitutionality of Texas's capital-sentencing scheme in Sonnier v. Quarterman, 476 F.3d 349 (5th Cir. 2007). We first noted that the distinction between the nine enumerated categories of capital murder, see TEX. PENAL CODE ANN. § 19.03(a), and other categories of murder, see TEX. PENAL CODE ANN. § 19.02(b), "is the initial narrowing of the class of persons who may potentially face the death penalty." Sonnier, 476 F.3d at 366. This, in conjunction with the requirement that one or more statutory aggravating circumstances be found beyond a reasonable doubt by a unanimous jury, led us to "conclude that the Texas scheme . . . is constitutionally valid . . ., in that it rationally narrows the classes of defendants determined to be eligible and selected for the death penalty." Id. at 366.
We conclude that our decision in Sonnier, by which we are bound, see United States v. Rose, 587 F.3d 695, 705 (5th Cir. 2009) (per curiam), forecloses Taylor's argument. Moreover, it was not irrational for the State to authorize the death penalty only for those inmates whose life sentences were imposed for aggravated offenses. As the TCCA has explained, "inmates who have committed murder or other aggravated offenses have already shown a certain propensity for violence. Furthermore, the greater the sentence that the inmate received, the less he may have to lose by committing further offenses in prison." Cannady v. State, 11 S.W.3d 205, 215 (Tex.Crim.App. 2000) (footnote omitted); see also Cannady v. Dretke, 173 Fed.Appx. at 329 ("[T]he legislators' intent in passing the law was to deter inmates already serving long sentences from murdering other inmates." (citing State v. Cannady, 913 S.W.2d 741, 743-44 (Tex.App.-Corpus Christi 1996, writ denied))). Nor is it constitutionally problematic that the earlier decision to charge an aggravated offense such as aggravated robbery rather than ordinary robbery rested within the discretion of the prosecutor. See Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978) ("Within the limits set by the legislature's constitutionally valid definition of chargeable offenses, `the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation' so long as `the selection was not deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.'" (alteration omitted) (quoting Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962))). We therefore hold that the state court's decision was neither "contrary to, [n]or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).
B. Confrontation Clause
Taylor next alleges that admission of portions of his prison disciplinary record during the sentencing phase of his trial violated his right to be confronted with the witnesses against him. During the sentencing phase of his trial, the State sought to introduce a copy of Taylor's prison disciplinary record, which contained reports of altercations with other inmates and threats made to prison guards. Taylor objected on the grounds that the reports contained inadmissible hearsay and violated his rights under the Confrontation Clause. The state trial court admitted the prison disciplinary record under the business records exception to the hearsay rule. See TEX.R. EVID. 803(6). On direct appeal to the TCCA, Taylor claimed that the record was erroneously admitted under the business records exception because it contained "matters observed by police officers and other law enforcement personnel." TEX.R. EVID. 803(8)(B); see also Cole v. State, 839 S.W.2d 798, 810 (Tex.Crim.App. 1990) (holding that evidence made inadmissible by Rule 803(8) may not be admitted under Rule 803(6)). However, because Taylor did not raise that objection at trial, the TCCA held that he "procedurally defaulted his Cole claim for appeal." The TCCA further held that Taylor's Confrontation Clause claim, which was predicated on the Cole claim, was thus procedurally defaulted as well.
The TCCA held in the alternative that any error was harmless.
In this appeal, Taylor has not attempted to argue that his procedural default on the Confrontation Clause claim is excused by cause and prejudice. Instead, he merely reurges his assertion that because he is actually innocent of the death penalty, any procedural default should be excused. We have already rejected, on the merits, Taylor's contentions that he is ineligible for the death penalty. As a result, his claim of actual innocence based on those contentions must also fail. Because Taylor offers no independent justification for us to reach the merits of his Confrontation Clause claim, we do not do so.
In the portion of his brief devoted to the issue, Taylor argues:
As already stated, Petitioner contends that any procedural default should be excused in light of his "actual innocence" of the death sentence imposed on him as a result of the unconstitutional application of Tex. Pen. Code § 19.03(a)(6)(B) in which an offense committed when Petitioner was a juvenile was used to elevate the killing of a fellow inmate from simple murder to capital murder.
IV. CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED.
ew why she was at the SANE examination, the child provided a narrative of the sexual abuse, which the state sought to admit at trial under Rule 11-803(D).
Id. ¶¶ 5, 8. As previously noted, the child was not available to testify at trial. Although concluding that the statements would be admissible under Rule 11-803(D), the trial court nevertheless ruled that "Confrontation Clause issues trumped a valid hearsay exception," and excluded the statements because the child did not appear for trial.
Ortega, 2008-NMCA-001, ¶ 16, 143 N.M. 261,
175 P.3d 929.
{26} In affirming the trial court's ruling, the Court of Appeals in Ortega merged the analytical framework for determining admissibility under Rule 11-803(D) with that of constitutionality under the Confrontation Clause, stating, "[b]oth [Rule 11-803(D)] and Crawford jurisprudence draw our focus to the `purpose' of the interview or interrogation in which a statement is taken." Ortega, 2008-NMCA-001, ¶ 18, 143 N.M. 261, 175 P.3d 929 (referring to Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)). The Court concluded that the primary purpose of the SANE interview was evidence-gathering, not medical diagnosis or treatment, which made any resulting statements "testimonial" and inadmissible under Crawford. Ortega, 2008-NMCA-001, H26, 143 N.M. 261, 175 P.3d 929. The Court then used this conclusion as the basis for its hearsay analysis, reasoning that if the purpose of the interview is forensic, then any resulting statements are not made for purposes of medical diagnosis or treatment under Rule 11-803(D). Ortega, 2008-NMCA-001, ¶ 26, 143 N.M. 261, 175 P.3d 929. In other words, Ortega for the first time conflated the criteria for Confrontation Clause analysis and hearsay under Rule 11-803(D): "We also recognize that the statements [to the SANE nurse] may have had a medical purpose, but that does not preclude statements from also being testimonial." Id. ¶ 22.
{27} The "primary purpose of the encounter" approach in Ortega is derived from the United States Supreme Court's Confrontation Clause jurisprudence. The Court began by quoting the principal holding in the United States Supreme Court's post- Crawford opinion in Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006):
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the
primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
Ortega, 2008-NMCA-001, ¶ 28, 143 N.M. 261,
175 P.3d 929 (emphasis added). Without a single mention of trustworthiness, Ortega aligned its Rule 11-803(D) admissibility analysis with its Confrontation Clause analysis, stating that the purpose of a statement made during a SANE examination "exists in concert with the very things that might make a statement obtained thereby testimonial under [Confrontation Clause cases],"
Ortega, 2008-NMCA-001, ¶ 21, 143 N.M. 261,
175 P.3d 929, and later that "it is the
primary purpose of the interview with a declarant that triggers the nature of the statement obtained in its course,"
id. ¶¶ 26-27 (emphasis added). It is on this point that we part company with the Court of Appeals in
Ortega with respect to Rule 11-803(D).
{28} The hearsay rule and the Confrontation Clause are not co-extensive and must remain distinct. The hearsay rule is intended to ensure that the jury is not exposed to unreliable evidence, even when the declarant testifies at trial and is subject to cross-examination. The Confrontation Clause guarantees the accused in a criminal trial the right "to be confronted with the witnesses against him," regardless of how trustworthy the out-of-court statement may appear to be. U.S. Const. amend. VI. More important for present purposes, the unique dangers each seeks to avoid can be implicated under quite distinct circumstances. As the United States Supreme Court explained in Crawford,
not all hearsay implicates the Sixth Amendment's core concerns. An off-hand, overheard remark might be unreliable evidence and thus a good candidate for exclusion under hearsay rules, but it bears little resemblance to the civil-law abuses the Confrontation Clause targeted. On the other hand,
ex parte examinations might sometimes be admissible under modern hearsay rules, but the Framers certainly would not have condoned them.
541 U.S. at 51, 124 S.Ct. 1354.
{29} Conflating the Rule 11-803(D) and Confrontation Clause inquiries — as Ortega clearly did — misses an important distinction between the two. In Crawford, the United States Supreme Court listed several examples of the "core class of `testimonial' statements" which trigger Confrontation Clause concerns, including
ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable
to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially . . . extrajudicial statements . . . contained in formalized testimonial materials . . . statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.
541 U.S. at 51-52, 124 S.Ct. 1354 (internal quotation marks and citations omitted). What these examples have in common is that they lend themselves to an analysis that focuses largely on surrounding circumstances to separate testimonial from non-testimonial statements.
{30} For example, once an individual prepares an affidavit, the reliability of any single statement is largely irrelevant for constitutional purposes because it will
all be testimonial and inadmissible under the Sixth Amendment without a prior opportunity for cross-examination. The act of preparing an affidavit evinces the preparer's awareness that each statement could be used at trial. As another example, consider the facts of
Davis, which involved hearsay statements made during an emergency 911 call.
547 U.S. at 817-18, 126 S.Ct. 2266. As the United States Supreme Court noted, at a definitive point during the 911 call, the emergency had subsided.
Id. at 828-29,
126 S.Ct. 2266. After that point, the caller was no longer engaged in meeting an ongoing emergency, but rather was engaged in providing "past events," rendering all statements after that point testimonial.
Id. Again, the circum stances surrounding the statements (whether the emergency was ongoing) largely defined the nature of the statements themselves for purposes of constitutional analysis.
For an indepth discussion of the Confrontation Clause issues surrounding statements made to medical personnel, see Dave Gordon, Is There an Accuser in the House?: Evaluating Statements Made to Physicians and Other Medical Personnel in the Wake of Crawford v. Washington and Davis v. Washington, 38 N.M. L. Rev. 529 (2008).
{31} In contrast, under Rule 11-803(D), a declarant could make a statement for entirely medical purposes even if the primary purpose of the interview has become forensic. The converse is also true. Even during an initial encounter for medical purposes, the declarant could make a statement entirely unrelated to medical diagnosis or treatment, thus failing to satisfy Rule 11-803(D). Unlike the Confrontation Clause context, in which the surrounding circumstances determine whether the declarant is "bearing testimony," the medical or non-medical purpose of a statement cannot be determined without closely examining the substance of the statement. Surrounding circumstances are certainly relevant, but the focus must center on the individual statement. {32} The Court of Appeals opinion in the present case followed Ortega's approach. The Court found a "critical demarcation" between the initial pediatric consultation and the SANE examination at the Family Advocacy Center where, at least in the Court's view, the purpose of the encounter between Nurse Lopez and T.F. "changed from a medical examination into a criminal investigation." Mendez, 2009-NMCA-060, ¶ 31, 146 N.M. 409, 211 P.3d 206. The Court of Appeals acknowledged that SANE exams have "medical aspects," and even conceded that during this SANE exam Nurse Lopez ap peared to have an earnest, medical objective of looking for the cause of T.F.'s bleeding. Id. ¶¶ 32-34. Nevertheless, the Court's focus on the SANE interview's "essential nature" and "primary purpose" dominated its analysis, obscuring any consideration of whether individual statements may have been reasonably pertinent to medical diagnosis or treatment. Id. ¶¶ 34-35. Having concluded, consistently with Ortega, that the primary purpose of the examination was forensic — as one would assume with most SANE examinations — the Cqurt upheld the trial court's decision to exclude all of T.F.'s statements. Id. ¶¶ 29-31.
By way of analogy, we note that a statement-by-statement inquiry is consistent with our approach to admissibility under a completely different hearsay exception. Rule 11-804(B)(3) NMRA (statements against penal interests). In State v. Torres, we noted that the word "statement" in Rule 11-804(B)(3) directs courts to evaluate individual declarations. 1998-NMSC-052, ¶ 14, 126 N.M. 477, 971 P.2d 1267, over-ruled on other grounds by State v. Alvarez-Lopez, 2004-NMSC-030, ¶ 23, 136 N.M. 309, 98 P.3d 699. We rejected an all-or-nothing approach to evaluating the declarant's statements made during a particular encounter, electing instead to focus on individual statements to determine admissibility. Id. We have also rejected a hyper-technical application of Rule 11-804(B)(3) that would isolate strictly admissible statements from the context in which they were made. See State v. Gonzales, 1999-NMSC-033, ¶ 7, 128 N.M. 44, 989 P.2d 419. Thus, as with Rule 11-803(D), the proper Rule 11-804(B)(3) analysis requires a statement-by-statement analysis, taking into consideration the context of the statement as well as the circumstances under which the statement was made.
{33} Since its opinion in the present case, the Court of Appeals has issued yet another opinion that follows the Ortega approach. See Tafoya, 2010-NMCA-010, 147 N.M. 602, 227 P.3d 92. On facts strikingly similar to those of the present case, the Tafoya court upheld the trial court's decision to admit statements made by the child sexual assault victim to the examining nurse, distinguishing Mendez and Ortega on their facts. Tafoya, 2010-NMCA-010, ¶ 36, 147 N.M. 602, 227 P.3d 92. A closer look reveals that none of the putative factual distinctions provide a principled basis for administering Rule 11-803(D). Rather, as we will discuss shortly, the categorical exclusion of all statements made to a SANE nurse in Ortega and Mendez, but not in Tafoya, exposes the Ortega "purpose of the encounter" approach as overly broad and unfairly condemnatory. Because it is fundamentally flawed, it draws an arbitrary and indefensible distinction between admissible and inadmissible hearsay.
{34} As an example, one fact of importance to the Court of Appeals in Tafoya was that the child's statements were made during the initial pediatric examination, not at a separate SANE examination, as occurred in Ortega and Mendez. Tafoya, 2010-NMCA-010, ¶ 34, 147 N.M. 602, 227 P.3d 92. We agree that statements made during a patient-history examination that occurs four days after an initial physical examination, as in Ortega, might be less pertinent to treating a medical condition, and that the declarant might be less motivated to seek help in making statements at that later point in time. Certainly it would be within a trial court's discretion to arrive at that assessment. But the SANE examination of T.F. in this case occurred the same evening as the initial examination, and the source of T.F.'s bleeding had not yet been determined. A trial court could quite reasonably conclude that T.F. had the same help-seeking motivation at the Family Advocacy Center as she had at Arroyo Chamiso less than two hours earlier; indeed, she was confiding in the same medical care provider (Nurse Lopez) at both locations.
{35} Furthermore, Nurse Lopez testified that she did not have the specialized equipment necessary to conduct an internal examination of T.F. at Arroyo Chamiso, and that "just to be safe medically, it was appropriate to have [T.F.] seen as soon as possible with a more focused exam" at the Family Advocacy Center. Given Nurse Lopez's testimony, any information obtained at the latter location might have been equally "pertinent" to her diagnosis or treatment of T.F. See In re Rachel T, 77 Md.App. 20, 549 A.2d 27, 34 (1988) (unexplained bleeding supported conclusion that child sexual abuse victim's statements during medical examination were for purposes of medical treatment). The nurse in Tafoya performed similar examinations to those performed by Nurse Lopez in this case, and she did so at a facility specially equipped to treat child victims of sexual abuse. In addition, like Nurse Lopez in this case, the nurse in Tafoya was trained to collect evidence of sexual abuse that could be used by police to build a case against the perpetrator. 2010-NMCA-O10, ¶ 36, 147 N.M. 602, 227 P.3d 92. That the nurse in Tafoya performed her examination at one location instead of two, strikes us as a hollow basis for categorically excluding statements under Rule 11-803(D).
{36} Another distinction drawn by Tafoya was that in Ortega and Mendez, police were present during the interview and more directly involved or interested in the collection of evidence. Tafoya, 2010-NMCA-010, ¶ 36, 147 N.M. 602, 227 P.3d 92. The record in this case is unclear about whether police were present in the room where the patient-history interview with T.F. took place. But even if the police were present in the room, this should not automatically define the nature of T.F.'s statements for hearsay purposes, as Mendez and Tafoya suggest.
{37} SANE nurses, like all medical professionals, are under a legal obligation to report possible sexual abuse to the police. See NMSA 1978, § 32A-4-3(A) (2005) (requiring every person, including medical professionals, who suspect that a child has been abused or neglected to immediately report the matter to authorities). Absent some evidence that the police were attempting to manipulate the examination, we would not place dispositive weight on their presence on the premises or even in the examination room. See Esperanza M., 1998-NMCA-039, ¶ 10, 124 N.M. 735, 955 P.2d 204 ("We consider it immaterial whether the examination was part of an investigation, so long as it was for diagnosis or treatment.").
{38} We must not lose sight of the fact that Rule 11-803(D) questions in the criminal context frequently involve a victim being treated for injuries sustained as a result of an alleged criminal act, and police as well as medical personnel often become involved in the investigation. See Dave Gordon, Is There an Accuser in the House ?: Evaluating Statements Made to Physicians and Other Medical Personnel in the Wake of Crawford v. Washington and Davis v. Washington, 38 N.M. L. Rev. 529, 529 (2008). That should not categorically exclude a victim's statements from evidence. Nor, as we discuss in the next section, should we categorically exclude medically pertinent statements just because they were made to a SANE nurse, when those same statements would be admissible if made to a doctor or to a nurse in the emergency room.
{39} The diversion created by Ortega is that it directs courts to determine the purpose of the encounter, instead of considering the substance of, and circumstances surrounding, individual statements. This approach is irreconcilable with previous hearsay opinions in which our courts have focused on particular statements, determining in each instance the purpose for which the statement was made. See Esperanza M., 1998-NMCA-039, ¶¶ 16-17,124 N.M. 735, 955 P.2d 204 (examining individual statements and surrounding circumstances to determine admissibility); State ex rel. Children, Youth Families Dep't v. Frank G., 2005-NMCA-026, ¶ 31, 137 N.M. 137, 108 P.3d 543 ("The Child's statements about the sexual abuse were of the type upon which medical personnel reasonably rely in treatment or diagnosis and meet the standards for admission set forth in Rule 11-803(D)."). The Court of Appeals acknowledged as much in its opinion below, stating, "even if the facts in Esperanza M. and the other cases we have just cited can be considered equivalent of those in this case, we believe Ortega, which specifically recognized that statements made to a SANE nurse are not predominantly for diagnosis and treatment, has changed the legal landscape." Mendez, 2009-NMCA-060, ¶ 40, 146 N.M. 409, 211 P.3d 206.
{40} We agree that Ortega changed the fundamental approach to analyzing statements under Rule 11-803(D), at least for statements made to SANE nurses. In so doing, it shifted the focus away from the trustworthiness of the statement. We now restore the "legal landscape" in this area of the law, and partially overrule Ortega to the extent of its discussion of the admissibility of hearsay statements under Rule 11-803(D). We do not disturb Ortega's discussion of constitutional issues.
Statements made to a SANE nurse can be admissible for purposes of medical diagnosis or treatment, but trial courts must exercise exacting scrutiny to ensure trust-worthiness.
{41} We acknowledge the special challenges posed by determining the admissibility of statements made to SANE nurses under Rule 11-803(D), but we reject the notion that statements can be categorically excluded based on the professional status or affiliation of the individual to whom the statement is made. SANE nurses fill a void in our medical system, providing critical treatment to patients at a time of great physical, emotional, and psychological vulnerability. As the State points out, SANE nurses may be better suited to provide this treatment due to their special training than non-SANE nurses and physicians. But they also have special expertise in gathering evidence for subsequent prosecution of the offender, which raises appropriate concerns about whether the statement was made for the purposes of seeking medical care or whether a medical provider could have reasonably relied upon the statement for diagnosis or treatment of the declarant.
{42} Both Defendant and the State seem to agree that SANE nurses have a dual role: the provision of medical care and the collection and preservation of evidence. As the State's brief explains, SANE nurses "are overall more competent than emergency room[] doctors and non-SANE nurses at collecting and preserving evidence of value to the legal system." See Campbell, supra at 321 ("SANEs collect forensic evidence correctly and, in fact, do so better than physicians."). When compared with other medical providers, the goals of SANE nurses and SANE examinations can seem more closely aligned with law enforcement, which presents an acute risk that the SANE nurse's expert status can be abused to allow an end-run on the hearsay rule. Trial courts must be aware of the potential for such abuses, subjecting to close scrutiny the exchange between SANE nurse and patient to determine the statement's overall trustworthiness under Rule 11-803(D) in light of the two rationales highlighted above.
{43} SANE nurses may be more adept at collecting and preserving evidence, but any medical provider who treats sexual abuse victims is engaged to some extent in the collection of evidence, and most understand that the evidence they collect — physical or otherwise — could be used in a subsequent prosecution. See Robert P. Mosteller, Testing the Testimonial Concept and Exceptions to Confrontation: "A Little Child Shall Lead Them," 82 Ind. L.J. 917, 952 (Fall 2007) ("There is every reason to assume that the vast majority of doctors and nurses are aware both of reporting requirements and the admissibility of many statements made to them during the examination process. The medical examination thus always has the potential to feed directly into the criminal process, and use of the statements at trial is an MENDEZ obvious possibility." (footnote omitted)). The trial court must therefore carefully parse each statement made to a SANE nurse to determine whether the statement is sufficiently trustworthy, focusing on the declarant's motivation to seek medical care and whether a medical provider could have reasonably relied on the statement for diagnosing or treating the declarant.
{44} Defendant goes too far in asserting that Nurse Lopez was simply "well coached" and "able to articulate a `medical' reason" for asking the questions that elicited the challenged statements. At the evidentiary hearing, Nurse Lopez was questioned about the purpose of asking various questions during the patient-history interview with T.F. Several examples of this exchange include:
[State:] The next question that you asked was where did your Grandpa touch you?
. . . .
[State:] What was your intention in asking that question?
[Nurse Lopez:] [L]ooking for body-to-body contact, where could there possibly be injury, if any, to this child.
. . . .
[State:] [Y]ou followed up . . . asking if he touched her with any other part of his body, what was the purpose . . . ?
[Nurse Lopez:] [J]ust to see if there's any other possibility of being touched by any other body part. Again the other thing that could somewhat go to this is the possibility of any body fluid coming in contact with the child.
. . . .
[State:] [Y]ou asked, . . . how did your body feel when he touched your privates with his dick, what did you mean by that question?
[Nurse Lopez:] What that means is more, did you have pain. [T]rying to figure out if there's another cause for the bleeding. . . .
. . . .
[State:] [A]sking if he put anything on his dick when he touched her, what was the purpose in asking that question?
[Nurse Lopez:] This has to do with was their [sic] a condom used, does she have any risks of sexually transmitted infections that may come to her . . . if the body was actually exposed to an adult male body part.
{45} If Nurse Lopez were a treating physician or attending nurse in an emergency room, much of this exchange would likely be admissible under any interpretation of Rule 11-803(D). Yet SANE nurses regularly treat victims of sexual abuse that require critical medical attention. We have stated today that a trial court should consider the context and circumstances under which a statement was made, but at the very least, T.F.'s statements in this case should not have been
categorically excluded based on Nurse Lopez's status as a SANE nurse.
See United States v. Gonzalez, 533 F.3d 1057, 1062 (9th Cir. 2008) (A "[registered nurse and sexual examiner] was collecting evidence, but that forensic function did not obliterate her role as a nurse, in a hospital, performing a medical examination of a victim of a sexual assault. It would have been unprofessional for [nurse] to have treated [victim] without eliciting an account of what had happened to her.").
{46} The record before us does not suggest that the trial court doubted Nurse Lopez's veracity or judgment, but relied instead on Ortega's "primary purpose of the encounter" inquiry. See State v. Lovato, 112 N.M. 517, 521, 817 P.2d 251, 255 (Ct.App. 1991) (stating that a factfinder should state in the record reasons for rejecting uncontradicted testimony solely on credibility grounds). It would make our job far easier simply to exclude all statements made during SANE examinations. We would do so, however, at the substantial risk of excluding statements that are otherwise trustworthy, vital to the prosecution, and fair to the accused. Our hearsay rule was not intended to create such an injustice. Our courts must once again shoulder the heavy responsibility of sifting through statements, piece-by-piece, making individual decisions on each one. On remand the trial court will need to evaluate the trust-worthiness of each of T.F.'s statements, taking into consideration T.F.'s help-seeking motivation and the pertinence of such statements to medical diagnosis or treatment.
A number of jurisdictions have considered admissibility in light of the SANE nurse's dual role. Consistent with our analysis today, these jurisdictions have held that a statement is admissible if it was made for a medical purpose, even if it was also made for a forensic purpose, and that statements in this context should be only excluded if the purpose was exclusively forensic. See State v. Payne, 225 W.Va. 602, 694 S.E.2d 935 (2010) (citing similar holdings in cases from North Carolina, Maryland, North Dakota, and Texas); State v. Keeton, No. 03 CA 43, 2004 WL 1549421, *13 (Ohio Ct.App. July 9, 2004) (dual medical and forensic purpose does not render statement to doctor or nurse inadmissible). At least one jurisdiction has addressed the matter by creating hearsay rules designed to deal specifically with statements by child victims of sexual abuse. See, e.g., Fla. Stat. Ann. § 90.803(23) (2003) (Florida rule of evidence, admitting hearsay statements of child under 11 regarding sexual or other abuse, subject to various conditions such as reliability, unavailability, and specific findings of fact by the court).
The record reveals several statements that could be admissible under the proper analysis.
{47} We address some of the specific statements at issue in this case, but not to adjudicate their admissibility, because that question is not yet ripe for our decision. We do so for illustrative purposes alone. We emphasize that on remand the trial court will have broad discretion to determine the admissibility of T.F.'s statements. This Opinion is not intended to dictate a particular outcome, but rather to free the trial court of the confines previously imposed by Ortega. {48} On reflection, it appears that several of T.F.'s statements could be admissible, in the discretion of the trial court, under the proper Rule 11-803(D) analysis. For example, Nurse Lopez stated in her SANE report that she asked T.F., "What made you bleed?" to which T.F. responded, "He put his finger inside and it hurt." She also asked, "What happened to your body?" to which T.F. responded, "I got tuched [sic] by a man." When Nurse Lopez later asked, "A few weeks ago when you were bleeding, what happened to your body?" T.F. replied, "I was bleeding alot [sic]." Knowing the patient's account of what happened to her body helps medical care providers determine the best way to proceed in diagnosing and ultimately treating any injury. As one authority in the field has observed, "to develop history for the purpose of diagnosis and treatment, a doctor may ask about past events that led to the current condition. Both past and present symptoms and causes are medically relevant to the assessment and treatment of any patient, including children who may have been abused." Mosteller, supra at 971.
{49} The trial court could reasonably conclude that T.F. understood that her bleeding was serious or, at least, that she understood the importance of answering Nurse Lopez honestly, or that Nurse Lopez would have been justified in reasonably relying upon such statements to diagnose or treat T.F. Certainly, a trial court could look at the statements above as squarely within the confines of Rule 11-803(D) under either of the underlying rationales we have discussed.
{50} In contrast, some of the challenged statements might present a rather attenuated link to the rationales behind Rule 11-803(D). For instance, Nurse Lopez asked, after T.F. stated that Defendant touched her, "Where were you when he did this?" Nurse Lopez also asked, "Did he ask you not to tell?" At one point, T.F. stated that Defendant had sex with her step-cousin. Nurse Lopez then asked, "What's your step cousin's name?" At the hearing, Nurse Lopez did not provide a medical purpose for these particular statements, nor did she explain how they contributed to her understanding of T.F.'s medical condition.
{51} T.F.'s statement specifically identifying Defendant as her abuser presents a much more difficult question. At the hearing on Defendant's motion to suppress, Nurse Lopez explained that identity is relevant to removing the child from an unsafe environment and to aid in determining what injuries to look for based on the age and size of the accused.
{52} As a general matter, statements of fault or identity are inadmissible under the hearsay exception for purposes of medical diagnosis or treatment because they are not pertinent to treatment or diagnosis. Altgilbers, 109 N.M. at 459, 786 P.2d at 686. The example provided in the committee commentary to the federal rule is "a patient's statement that he was struck by an automobile would qualify but not his statement that the car was driven through a red light." Fed.R.Evid. 803 advisory committee's note to ¶ 4. Like the statement that the car was driven through a red light, a statement about who was driving the car has nothing to do with the provision of medical care, and so lacks pertinence and the circumstantial guarantees of trustworthiness that the hearsay exception envisions.
{53} However, along with what has been described as a majority of jurisdictions, New Mexico recognizes an exception to this principle where the identity of the perpetrator is pertinent to psychological treatment, or where treatment involves separating the victim from the source of the abuse. See Frank G., 2005-NMCA-026, ¶ 30, 137 N.M. 137, 108 P.3d 543 ("First, a proper diagnosis of a child's psychological problems resulting from sexual abuse or rape will often depend on the identity of the abuser. Second, information that a child sexual abuser is a member of the patient's household is reasonably pertinent to a course of treatment that includes removing the child from the home."); see also Altgilbers, 109 N.M. at 459, 786 P.2d at 686 ("In dealing with child sexual abuse, however, disclosure of the perpetrator may be essential to diagnosis and treatment."); United States v. Renville, 779 F.2d 430, 437-38 (8th Cir. 1985) (explaining that "child abuse involves more than physical injury; the physician must be attentive to treating the emotional and psychological injuries which accompany this crime," and that "physicians have an obligation, imposed by state law, to prevent an abused child from being returned to an environment in which he or she cannot be adequately protected from re-current abuse"); United States v. Lingle, 27 M.J. 704, 707 (A.F.C.M.R. 1988) ("[W]e find a trend in both military and civilian courts to permit the admission of identification evidence under Rule 803(4) in child abuse cases. The rationale for allowing such evidence is both reasonable and medically logical as there can be psychological as well as physical problems resulting from child abuse."); Blake v. State, 933 P.2d 474, 477 n. 2 (Wyo. 1997) ("an overwhelming majority of jurisdictions, including at least 32 states and 4 federal circuits, allow into evidence statements regarding the identity of the perpetrator in child physical or sexual assault cases"). On remand, the trial court must carefully consider, in light of these cases, whether T.F.'s statement naming Defendant as her abuser merits admission under Rule 11-803(D).
{54} Finally, even if a statement is deemed trustworthy under Rule 11-803(D), trial courts must carefully weigh its probative value against the prejudice it might cause the accused. See Rule 11-403 NMRA ("Although relevant, evidence may be excluded if its probative value is substantially out-weighed by the danger of unfair prejudice. . . ."). The State bears the burden of laying the proper foundation for admitting statements under Rule 11-803(D) and Rule 11-403. As Justice Powell stated, "[i]t must be remembered that, in addition to assuring the fair presentation of a plaintiffs case, the district court has the responsibility of shielding defendants from the admission of unduly prejudicial evidence." Morgan, 846 F.2d at 951.
{55} Having only the perspective of a limited record, we are in a far inferior position to that of the trial court to make a final determination on the admissibility of any of these statements. Accordingly, we remand to the trial court to exercise its discretion in a manner consistent with our discussion in this Opinion. It is appropriate for a trial court to subject statements made to a SANE nurse to greater scrutiny than those made to other medical care providers, although statements might be admissible or inadmissible in either case depending on the circumstances before the court. Trial courts are specially equipped to evaluate the import of these circumstances, but admissibility of any statement under Rule 11-803(D) must turn, ultimately, on its trustworthiness. It bears repeating that our discussion herein pertains only to admissibility under Rule 11-803(D), and not to constitutional considerations addressed in Ortega and similar authorities.
CONCLUSION
{56} We reverse the ruling of the Court of Appeals regarding the admissibility of statements under Rule 11-803(D). We remand to the trial court for proceedings consistent with this Opinion.
{57} IT IS SO ORDERED.
WE CONCUR: CHARLES W. DANIELS, Chief Justice, PATRICIO M. SERNA, PETRA JIMENEZ MAES, and EDWARD L. CHÁVEZ, Justices.