Anderson v. State

ADKINS, J., dissenting, in which HARRELL, J., joins.

Most respectfully, I dissent from the majority opinion because it seems to superimpose an additional requirement on the Maryland Rule 5—803(b)(4) hearsay exception, i.e., that there be an explicit statement from the child that she understood why she was referred to the health care provider. Although I do not dispute that the pertinent inquiry in deciding whether to admit such evidence is whether the patient believed that the health care provider was going to diagnose or treat her, I think that the trial judge may make such determination based on the circumstances of the medical examination, without an explicit statement from the patient. See United States v. Edward J., 224 F.3d 1216, 1220 n. 3 (10th Cir.2000) (evidence other than the express testimony of the victims sufficiently indicated that they understood the evaluation was for medical purposes, specifically, the victims’ ages (eight and ten), the frequency with which the victims had been to that medical clinic before, and the level of maturity demonstrated by their request for a female physician); United States v. Pacheco, 154 F.3d 1236 (10th Cir.1998) (evidence that physician explained to victim why she was being evaluated and the process for such evaluation, including showing the child the medical instruments, was sufficient to admit the victim’s statements even though the victim did not expressly testify that she knew the procedure was for medical purposes). Although the State has the burden to establish that the *572medical examination exception applies, that burden can be satisfied from the content of the medical report itself.

In this case, the child victim was taken to the “Tree House Child Assessment Center For Montgomery County” after her release from Holy Cross Hospital on April 28, 2008, the same day she reported the sexual abuse to the police. Dr. Boos “reminded her that [he] was a doctor and we needed to talk about doctor things,” and that she should “never lie to [him] because if [he] made a decision based on the lie, [he] might not take proper care of her[.]” This case contrasts with the circumstances in State v. Coates, 405 Md. 131, 143-45, 950 A.2d 114, 122-23 (2008), where the child’s question—“are you going to go out and find him now?”—indicated that she thought the examination was part of an investigation rather than an assessment for medical purposes. In that case we agreed with the Court of Special Appeals that the trial court had erred in admitting the hearsay statement.1 In my opinion, the advisements given by Dr. Boos to the child, the occurrence of the examination on the same day that she visited the hospital, and other circumstances evident to the trial judge, were sufficient to justify the judge’s conclusion that the hearsay statements fell within the medical examination exception, and thus its admission did not constitute an abuse of discretion.

Judge HARRELL authorizes me to state that he joins in this dissenting opinion.

. Coates instructed that a statement made by a child sexual assault victim to a physician or other health care provider in connection with medical examination or treatment, which has some value for that purpose, is admissible under this exception even though the health care provider had the dual motive of diagnosis/treatment and utilizing the examination for forensic purposes in connection with the assault. See State v. Coates, 405 Md. 131, 143-45, 950 A.2d 114, 122-23 (2008). The Court in Coates emphasized that "a declarant’s statements about the cause of an injury or identity of a culprit must be related to diagnosis or treatment to be admissible.” Id. at 146, 123-24. It cautioned, moreover, that the exception "does not apply to cases in which a non-treating physician is merely preparing to testify on the patient’s behalf.” Id. at 142, 950 A.2d at 121.