IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 2, 2009
No. 08-31225 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff–Appellee
v.
TYRONE SANTOS
Defendant–Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:08-CR-52-1
Before HIGGINBOTHAM, GARZA, and PRADO, Circuit Judges.
PRADO, Circuit Judge:
Appellant Tyrone Santos appeals his conviction for assault resulting in
serious bodily injury under 18 U.S.C. § 113(a)(6). Appellant and Andre Dorsey
White, both incarcerated at the federal penitentiary in Pollock, Louisiana, beat
and stabbed Cashmere Cazeau, a fellow inmate. Appellant claims that the
Government violated his Sixth Amendment right to confront witnesses by failing
to call Cazeau as a witness at trial but admitting statements Cazeau made to
Jeremy Dallas, a Bureau of Prisons nurse, about the amount of pain he was in.
Appellant claims that the Government needed Cazeau’s statements to prove that
Cazeau suffered “serious bodily injury,” which can be shown by proving “extreme
No. 08-31225
physical pain.” See 18 U.S.C. § 1365(b). Appellant also argues that the district
court erred by instructing the jury to make no inferences based on the failure to
call a witness. Because Appellant’s statements to the prison nurse were not
testimonial and the district court correctly instructed the jury to make no
inferences due to the failure to call a witness, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant was in his cell when Cazeau, his cell-mate, entered. White also
entered the cell and closed the door. Appellant and White repeatedly stabbed,
struck, and kicked Cazeau. Correctional officers later found a shank in a trash
can. Photographs taken at the scene showed pools of blood, and photographs of
Cazeau showed cuts on his arms and puncture wounds around his body. Blood
covered Cazeau’s clothes, and a correctional officer testified that he poured blood
out of Cazeau’s shoe.
After the attack, Dallas responded to render medical treatment. As part
of his assessment, Dallas asked Cazeau to describe his pain on a scale of one to
ten, and Cazeau responded “nine.” Dallas recorded Cazeau’s answer on a
standardized medical assessment form and then called for pain medication.
Dallas administered the pain medication and again asked about Cazeau’s level
of pain, to which Cazeau responded “four.” Dallas also reported that Cazeau was
agitated and that his clothes were “saturated” with blood. The prison sent
Cazeau to a hospital for further evaluation and treatment.
The Government did not call Cazeau as a witness at trial. Appellant
objected to Dallas’s testimony regarding Cazeau’s statement of his level of pain
and Cazeau’s statement that he was “cut up and stabbed”1 on hearsay grounds
and as a violation of Appellant’s Sixth Amendment right to confront witnesses
against him. The district court overruled Appellant’s objection. At the close of
1
Appellant does not appeal the admission of Cazeau’s statement that he was “cut up
and stabbed.”
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trial, the Government requested an instruction that the jury should draw no
inferences from any party’s failure to call a witness equally available to all
parties. The district court gave the instruction over Appellant’s objection
because the parties had not shown that Cazeau’s testimony would “elucidate
facts in issue” under United States v. Chapman, 435 F.2d 1245, 1247 (5th Cir.
1970). The jury found Appellant guilty and sentenced him to 115 months’
imprisonment, to run consecutively after completion of his current term. This
appeal followed.
II. DISCUSSION
A. Confrontation Clause
A defendant, “[i]n all criminal prosecutions,” has the right “to be
confronted with the witnesses against him.” U.S. C ONST. amend. VI. We review
Confrontation Clause challenges de novo, United States v. Tirado-Tirado, 563
F.3d 117, 122 (5th Cir. 2009) (citing United States v. Alvarado-Valdez, 521 F.3d
337, 341 (5th Cir. 2008)), subject to harmless error review. Id. (citations
omitted).
The Confrontation Clause prohibits admission of “testimonial statements
of a witness who did not appear at trial unless he was unavailable to testify, and
the defendant had had a prior opportunity for cross-examination.” Crawford v.
Washington, 541 U.S. 36, 53–54 (2004). An out-of-court statement is testimonial
if it was “‘made under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use at a later
trial.’” Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 (2009) (quoting
Crawford, 541 U.S. at 52).
We have not previously addressed whether out-of-court statements made
during medical treatment are testimonial, but the Supreme Court has noted in
dicta that “medical reports created for treatment purposes . . . would not be
testimonial.” Id. at 2533 n.2. The Supreme Court has held that statements
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made to law enforcement personnel to “enable police assistance to meet an
ongoing emergency” are not testimonial. Davis v. Washington, 547 U.S. 813, 828
(2006). In Davis, the Supreme Court distinguished statements made to a 911
operator—an agent for the police—during an emergency from statements made
to the police after the need for emergency assistance has ended. Id. at 828. The
Court stated that trial courts may “recognize the point at which, for Sixth
Amendment purposes, statements in response to interrogations become
testimonial,” and may “redact or exclude the portions of any statement that have
become testimonial.” Id. at 829.
The district court instructed the jury that 18 U.S.C. § 1365 defines “serious
bodily injury” as bodily injury involving (a) a substantial risk of death; (b)
extreme physical pain; (c) protracted and obvious disfigurement; or (d)
protracted loss or impairment of the function of a bodily member, organ, or
mental faculty. Appellant claims that without Cazeau’s statements, the
Government showed no evidence that the assault resulted in “serious bodily
injury,” as required by 18 U.S.C. § 113(a)(6). Appellant argues that the failure
to call Cazeau deprived him of his right to confront his accuser 2 and that
Cazeau’s statements were testimonial in nature because they were made to
Dallas, a Bureau of Prisons employee. Appellant also argues that Cazeau may
have lied about his level of pain to obtain pain medication.
Dallas’s employment with the Bureau of Prisons is not determinative. As
in Davis, Cazeau made his statements during an ongoing emergency, for the
purpose of seeking a resolution to that emergency. See Davis, 547 U.S. at 828
(finding statements made to 911 operator non-testimonial). We do not doubt
2
Appellant also argues that failing to call Cazeau in his capacity as the victim of the
crime deprived him of his right to confront his accuser. Because there is no constitutional
right to confront the victim of a crime, we consider these arguments as part of our Crawford
analysis.
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that some statements made to a prison nurse would be testimonial due to the
nurse’s dual role in providing treatment and gathering information regarding
the incident, but we believe that district courts are equipped to distinguish the
point after which “statements in response to questions become testimonial.” Id.
Cazeau made the statement that his pain was a nine out of ten for medical
treatment to “meet an ongoing emergency.” See id. Dallas was not interrogating
Cazeau to gather evidence for trial or prison disciplinary proceedings. Dallas
asked Cazeau the question to determine whether he needed pain medication.
This interpretation is bolstered by the fact that Dallas, after administering the
medication, again asked Cazeau about his level of pain. Even if Cazeau lied
about his level of pain to receive medication, this does not render his statements
testimonial. Any witness would have concluded that Cazeau was in pain and
wanted pain medication, but would not have anticipated that Cazeau’s
statements regarding his level of pain would be used against Appellant at a later
trial. We therefore hold that statements made for the purposes of obtaining
medical treatment during an ongoing emergency are not testimonial under
Crawford.
B. Hearsay
We review evidentiary rulings for abuse of discretion. United States v.
Clark, 577 F.3d 273, 287 (5th Cir. 2009). Federal Rule of Evidence 803(4) allows
admission of hearsay statements “made for purposes of medical diagnosis or
treatment and describing . . . 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.”
Appellant argues that Cazeau’s statements are inadmissible hearsay
because they are testimonial and were not necessary for the purpose of medical
diagnosis or treatment. Appellant’s argument fails for two reasons. First,
whether the statements were testimonial is not part of the Rule 803(4)
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determination. Second, Rule 803(4) does not require that each statement be
“necessary” for medical treatment; it requires that statements be “reasonably
pertinent to diagnosis or treatment.” There is no question that Cazeau’s
statement regarding his pain was “reasonably pertinent” to treatment for that
pain. The district court did not abuse its discretion by finding that Cazeau’s
statements fit the Rule 803(4) hearsay exception.
C. Jury Instruction
“We review an appellant’s objection to jury instructions under an abuse of
discretion standard, affording the trial court substantial latitude in describing
the law to the jurors.” United States v. Orji-Nwosu, 549 F.3d 1005, 1006 (5th
Cir. 2008) (internal quotation marks and citations omitted). “We consider
whether the ‘charge, as a whole, was a correct statement of the law and whether
it clearly instructed the jurors as to the principles of the law applicable to the
factual issues confronting them.’” Id. (quoting United States v. Conner, 537 F.3d
480, 486 (5th Cir. 2008)).
In Chapman, we held that the district court may not give an adverse
inference instruction if the missing witness is “equally available” to both parties.
435 F.2d at 1247. However, we carved out an exception to this rule if one of the
parties controls that witness and his testimony would elucidate facts in issue.
Id. Appellant argues for application of the Chapman exception, but fails to
explain why the Government controlled Cazeau or how his testimony would
elucidate facts in issue. Chapman does not apply because Cazeau was not
controlled by the Government during trial and Appellant has not shown that
Cazeau’s testimony would elucidate facts in issue.
The type of control contemplated in Chapman is not physical custody.
Rather it is some sort of connection to the party, such that one would expect that
the missing witness’s testimony would corroborate that party’s theory of the
case, such as a party’s employee or attorney whose legal advice was at issue.
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United States v. Wilson, 322 F.3d 353, 363 n.14 (5th Cir. 2003) (citing Chapman,
435 F.2d at 1247; Labit v. Santa Fe Marine, Inc., 526 F.2d 961, 962–63 (5th Cir.
1976); McClanahan v. United States, 230 F.2d 919, 925 (5th Cir. 1956)); see also
United States v. Viera, 839 F.2d 1113, 1116 (5th Cir. 1988) (considering the
father of the defendant to be under defendant’s control unless the father refused
to testify or invoked the Fifth Amendment). Cazeau certainly did not have a
relationship with the Government that would cause one to expect that he would
give favorable testimony for it. On the other hand, if Appellant believed
Cazeau’s testimony would be beneficial to his defense, he was free to call Cazeau
as a witness any time during trial. Furthermore, as the district court correctly
found, Appellant has not made any showing that Cazeau’s testimony would
“elucidate facts in issue.” See Chapman, 435 F.2d at 1247. Appellant has not
shown that the trial court abused its discretion by instructing the jury that it
should draw no inferences from any party’s failure to call a witness equally
available to all parties.
III. CONCLUSION
For the reasons stated above, we AFFIRM Appellant’s conviction.
AFFIRMED.
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