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State v. Krasky

May 24, 2005

STATE OF MINNESOTA, APPELLANT,
v.
EDWARD RICHARD KRASKY, RESPONDENT.



Kandiyohi County District Court File No. K1-04-809

SYLLABUS BY THE COURT

Statements made by a child victim to a medical professional are not testimonial if the circumstances under which the statements were made would not lead the child, or a reasonable child of her age, to believe that the statements would be available for use at a later trial.

The opinion of the court was delivered by: Willis, Judge.

Affirmed in part, reversed in part, and remanded

Dissenting, Crippen, Judge*fn1

Considered and decided by Willis, Presiding Judge; Stoneburner, Judge; and Crippen, Judge.

OPINION

In this pretrial appeal from an order suppressing evidence, the state argues that a victim's statements to a nurse practitioner concerning alleged sexual abuse are admissible over appellant's Crawford objection because the statements were not testimonial. The state also argues that the district court erred by suppressing its Spreigl evidence. We affirm in part, reverse in part, and remand.

FACTS

Seven-year-old T.L.K. and her five-year-old sister, M.R.K., live with their foster parents, Tom and Sandy Houston. In April 2004, Sandy Houston suspected T.L.K. of inappropriately touching M.R.K. and asked T.L.K. if anyone had ever touched her that way. T.L.K. responded by describing acts suggesting that her father, respondent Edward Krasky, had inappropriately touched both her and M.R.K. A few days later, Houston walked in on T.L.K. intimately kissing M.R.K., apparently against M.R.K.'s will. These incidents, as well as a previous comment by T.L.K. that Krasky had licked her "all over," prompted Houston to contact the authorities.

On May 12, 2004, the Willmar Police Department received a child-protection report regarding T.L.K. and Krasky. Detective Timothy Manuel and the child-protection worker assigned to the case decided to have T.L.K. interviewed at Midwest Children's Resource Center (MCRC). On May 20, 2004, a nurse practitioner at MCRC interviewed and examined T.L.K. Detective Manuel observed the interview and examination from another room.

During the interview, T.L.K. had difficulty focusing and gave disjointed answers that were difficult to understand. But she was able to provide more direct answers in the subsequent physical examination. In both the interview and the examination, she described several occasions when Krasky touched her with his fingers, tongue, and penis.

Krasky was charged with six counts of first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342 (2002), and six counts of second-degree criminal sexual conduct, in violation of Minn. Stat. § 609.343 (2002). After a pretrial hearing on Krasky's motions to suppress the state's evidence, the district court ruled that T.L.K.'s statements in the interview and examination were testimonial and, therefore, inadmissible under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004). The district court also ruled that the state's Spreigl evidence was inadmissible. The state appeals from the district court's order suppressing both T.L.K.'s statements at MCRC and the Spreigl evidence.

ISSUES

1. Did the district court err by ordering the suppression of T.L.K.'s statements in her interview and examination at MCRC?

2. Did the district court err by ordering the suppression of the state's Spreigl evidence?

ANALYSIS

I.

On appeal from a pretrial order suppressing evidence, the state "must clearly and unequivocally show both that the trial court's order will have a 'critical impact' on the state's ability to prosecute the defendant successfully and that the order constituted error." State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998) (quotation omitted). "[W]hen a young child is found incompetent to testify and is thus unavailable the suppression of the child's statements describing the alleged sexual abuse reduces the likelihood of a successful prosecution and meets the critical impact test." In re Welfare of L.E.P., 594 N.W.2d 163, 168 (Minn. 1999). Because T.L.K.'s statements during the MCRC examination offer "an account of the events of the offense charged for which the testimony of others who were not the victim can be no substitute," we conclude that the state has met its critical-impact burden. See id. at 169.

Whether the district court erred by suppressing T.L.K.'s statements at MCRC is a question of law, which we review de novo. See State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999) ("When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing--or not suppressing--the evidence.").

In Crawford v. Washington, the United States Supreme Court ruled that the Confrontation Clause of the Sixth Amendment bars the admission of testimonial out-of-court statements unless the declarant is unavailable to testify and the defendant had a prior opportunity to cross-examine the declarant. 124 S. Ct. 1354, 1374 (2004). Both parties agree that T.L.K. is not competent to testify and that Krasky has not had an opportunity to cross-examine her. The district court found that T.L.K.'s statements at MCRC were testimonial and concluded that those statements are inadmissible under Crawford.

The Supreme Court did not define "testimonial" for Confrontation Clause purposes, but it did describe three types of statements that "share a common nucleus and . . . define the Clause's coverage at various levels of abstraction." Id. at 1364. These formulations of "testimonial" statements are:

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, such as affidavits, depositions, prior testimony, or confessions, . . . [and] 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.

Id. (second ellipsis in original) (citations and quotation marks omitted).

The statements at issue here are neither "ex parte in-court testimony or its functional equivalent" nor are they "extrajudicial statements . . . contained in formalized testimonial materials." See id. But they may fall into the third and broadest formulation if they "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." See id.

We considered this third formulation of "testimonial" in State v. Scacchetti, 690 N.W.2d 393 (Minn. App. 2005), review granted (Minn. Mar. 29, 2005). In Scacchetti, we reviewed the admission of a videotaped interview and examination of a child-abuse victim. Id. at 395-97. The victim's mother took her to the emergency room after noticing blood on items of her clothing and numerous bruises on her face. Id. at 394. The victim was transferred to MCRC to determine if any abuse had taken place. Id. At trial, the MCRC director testified that the center's process for diagnosing child abuse includes an interview with the person who brought the child to the clinic, an interview in which the child is asked "historical" questions about potential abuse, and a physical examination of the child. Id. She testified that "the process is based on 'medical protocol'" and that although a nurse practitioner conducts the examination and interview, all examinations and interviews at MCRC are videotaped for the director's review. Id.

In Scacchetti, we observed that under the third formulation of testimonial statements described in Crawford, the defendant must show that "the circumstances surrounding the contested statements led the [child victim] to reasonably believe her disclosures would be available for use at a later trial, or that the circumstances would lead a reasonable child of her age to have that expectation." Id. at 396. We held that the statements in that case were not testimonial because the examination and interview were performed for the purpose of a medical diagnosis and the nurse conducting the examination and interview "was not working on behalf of, or in conjunction with, investigating police officers or other government officials for the purpose of developing the case against [the defendant]." Id. (alteration in original) (quotation omitted).

Here, T.L.K. was examined and interviewed at MCRC by a nurse practitioner using what appears to be the same procedure described in Scacchetti. The nurse practitioner conducted a thorough medical examination, including an STD test, and recommended that T.L.K. see a psychotherapist to help her cope with the abuse that she has suffered. The examination was also videotaped, presumably for review by the MCRC director.

In Scacchetti, the circumstances under which the contested statements were given were crucial to our determination of whether the statements were testimonial. Scacchetti, 690 N.W.2d at 396. Here, although the MCRC examination may have been arranged by Detective Manuel and a child-protection worker, there is no indication that T.L.K. thought that her statements might be used in a later trial. T.L.K. was driven to MCRC by her foster mother, and she was shielded from the police presence throughout the MCRC examination. The record is clear that Detective Manuel did not interrupt or direct any portion of the interview or examination. The length of time between the alleged abuse and the examination also suggests that T.L.K. was not aware of any prosecutorial purpose of the examination and did not "reasonably believe that her disclosures would be available for use at a later trial." Scacchetti, 690 N.W.2d at 396. Although T.L.K. was not in need of immediate medical attention when the examination took place, the record shows that a nurse practitioner performed tests and asked questions so that she could provide a medical diagnosis.

Detective Manual may have anticipated that T.L.K.'s statements at MCRC might ultimately be used in Krasky's prosecution, but the circumstances under which her statements were made do not fall into any of the formulations of "testimonial" described by the United States Supreme Court in Crawford. See Crawford, 541 U.S. at 52, 124 S. Ct. at 1364. We find that Krasky has not shown that "the circumstances surrounding the contested statements led [T.L.K.] to reasonably believe her disclosures would be available for use at a later trial, or that the circumstances would lead a reasonable child of her age to have that expectation." See Scacchetti, 690 N.W.2d at 396. Although the examination was arranged by Detective Manuel, we further find that the examination was conducted, at least in part, for the purpose of medical diagnosis and that the administering nurse practitioner ...


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