Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge.
The opinion of the court was delivered by: Eisenhauer, C.J.
Michael Hilson appeals from convictions of burglary and sexual abuse. AFFIRMED.
Considered by Eisenhauer, C.J., and Vogel and Vaitheswaran, JJ.
Michael Hilson appeals from his convictions of burglary in the first degree and sexual abuse in the third degree, contending the court erred in admitting statements made to a police officer and a nurse by the complaining witness, who is now deceased. We affirm.
Background. In September 2006 T.B. called 911 to report she had been raped. Officer Bernlohr, who was nearby, responded within a few minutes. She encountered a crying, distraught, and injured T.B. who described the events of the preceding four hours. The officer took T.B. to the hospital, where she was examined by Nurse Williamson, a sexual assault nurse examiner. Williamson spoke with and examined T.B., including preparing a rape kit. The sealed rape kit was taken to the police department, where it remained for about two years. T.B. died in a motor vehicle accident in late 2006.
In May 2008 a detective had the rape kit sent to the Iowa Division of Criminal Investigation for analysis. The DNA analysis led the detective to Hilson, who was charged in December with burglary in the first degree and sexual abuse in the second degree. In September 2009 Hilson filed a motion in limine seeking in part to exclude all statements by T.B. to police officers and nurses as hearsay and a violation of his right of confrontation.
The trial court denied the motion. It determined the statements T.B. made to Officer Bernlohr were admissible under the excited utterance exception to hearsay. Iowa R. Evid. 5.803(2). It also determined the statements to the officer did not violate the Confrontation Clause because they were non-testimonial. The court determined the statements made to Nurse Williamson were admissible under the exception to hearsay for statements made for purposes of medical diagnosis or treatment. Iowa R. Evid. 5.803(4). It also determined T.B.'s statements to Nurse Williamson were non-testimonial.
At trial, the same objections were made to the testimony of Officer Bernlohr and Nurse Williamson as raised in the motion in limine. The objections were again overruled on the same grounds. The jury found Hilson guilty of burglary in the first degree and sexual abuse in the third degree.
Scope and Standards of Review. "Although we generally review a court's decision to admit or exclude evidence for an abuse of discretion, we review a hearsay claim for correction of errors at law." State v. Neitzel, 801 N.W.2d 612, 622 (Iowa Ct. App. 2011). Claims brought under the Confrontation Clause are reviewed de novo. State v. Rainsong, 807 N.W.2d 283, 286 (Iowa 2011). "[T]he fighting Confrontation Clause issue with respect to admission of hearsay is whether the underlying statements should be considered 'testimonial' or 'non-testimonial.'" State v. Shipley, 757 N.W.2d 228, 236 (Iowa 2008) (citation omitted). "The State bears the burden of proving by a preponderance of the evidence that a challenged hearsay statement is non-testimonial." State v. Schaer, 757 N.W.2d 630, 635 (Iowa 2008).
Merits. Statements to Nurse Williamson. Hilson contends the court erred in determining all of T.B.'s statements to the nurse were non-testimonial and did not violate his right of confrontation. He argues the nurse's interview of T.B. was "essentially a substitute for police interrogation" because the nurse was a trained sexual assault nurse examiner collecting evidence for the police investigation. See State v. Bentley, 739 N.W.2d 296, 299 (Iowa 2007). The trial court concluded Nurse Williamson's interview of T.B. was not like the interview in Bentley because the police were not participating, the nurse was not investigating for the police, there was no recording of the interview given to the police, and the nurse testified her interview was in part to guide her exam and in part to allow T.B. to tell her story and not traumatize her. See Schaer, 757 N.W.2d at 637. The court found there was no indication of any relationship between Nurse Williamson and the police to support a finding the interview was a substitute for police interrogation. See id. The court concluded T.B.'s statements to the nurse were not testimonial.
We agree with the trial court's assessment T.B.'s statements to the nurse were non-testimonial. They were not "made under circumstances that would lead an objective person to reasonably believe the statements would be available for use at a later trial." See id. at 636. The police were not present and did not provide questions for the nurse to ask. See id. at 637. The factual details elicited were to guide the nurse's medical examination. See id.
Statements to Officer Bernlohr. Hilson contends the court erred in determining T.B.'s statements to Officer Bernlohr were non-testimonial and did not violate his right of confrontation. He contends not all of T.B.'s statements to Officer Bernlohr were non-testimonial because T.B. did not volunteer the information but provided specific descriptions of her assailants and a detailed account of the events in response to questioning by the officer.
The trial court determined the statements were non-testimonial because they were made "as the officer was responding to [T.B.]'s ongoing emergency." See Davis v. Washington, 547 U.S. 813, 822 (2006) ("Statements are non-testimonial 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.").
Although we are inclined to agree T.B.'s statements to the officer were non-testimonial because the officer was responding to an emergency, including obtaining enough information to determine if the officer, T.B., or the public was at risk, we need not decide whether the admission of T.B.'s statements violated Hilson's right of confrontation because their admission, even if erroneous, was harmless. See State v. Newell, 710 N.W.2d 6, 25 (Iowa 2006) (noting "admission of evidence in violation of the Confrontation Clause does not mandate reversal: if the State establishes that the error was harmless beyond a reasonable doubt"). In making that assessment, we consider the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of ...