State v. Andersen, Minn.Ct.App., 7/3/2017. A jury convicted Mr. Andersen of assaulting his girlfriend, A.A. He complained on appeal that the trial court had improperly admitted prior abuse testimony, and had improperly admitted the report of the radiologist, who did not testify, that confirmed the testimony of a physician's assistant that A.A. had a broken nose. Here's how the court of appeals summed all this up:
A jury in an assault trial heard testimony that appellant Travis Andersen punched his girlfriend A.A. in the face and that he had previously assaulted her. A.A.’s treating physician’s assistant testified that she examined A.A.’s x-rays and concluded that A.A. suffered a broken nose, and the prosecutor introduced a radiologist’s report confirming that A.A.’s nose was broken. The jury found Andersen guilty. Andersen argues that the district court abused its discretion by allowing A.A. to testify about Andersen’s prior abuse and violated his constitutional right to confront witnesses by admitting the radiologist’s report. We affirm because the prior-abuse testimony was admissible relationship evidence and because the radiologist’s report was not testimonial in nature.
A.A. testified that Mr. Andersen had once hit her in the face during an argument. Mr. Andersen said that the trial court improperly admitted this prior abuse evidence because it was only relevant to establish whether A.A. alleges assaultive behavior and not that her allegations in this case were true. This argument is a bit too nuanced for the court of appeals:
The testimony was not chiefly that A.A. alleged prior abusive behavior, but that Andersen had actually engaged in prior abusive behavior. Her testimony informed the jury of the nature of their relationship, the times that she felt afraid of Andersen, and the times that Andersen attempted to manipulate, control, and restrain her. This testimony has obvious probative value.
Turning to the report of the non-testifying radiologist, Mr. Andersen relied on a slew of cases where scientific reports made during the course of a criminal investigation were held to be inadmissible under the Confrontation clause. It's worth a lengthy extract to summarize these cases:
In Caulfield, the Minnesota Supreme Court determined that a Bureau of Criminal Apprehension laboratory report identifying cocaine was testimonial evidence that was admitted in violation of the appellant’s confrontation right. 722 N.W.2d at 306–07, 310. The court recognized that the “critical determinative factor” in determining testimonial nature is whether a statement was prepared for litigation. Id. at 309. It concluded that the report was prepared for litigation, bearing “characteristics of each of the three generic [Crawford] descriptions” because the report was akin to testimony, prepared at police request to aid in a prosecution, and offered into evidence to prove an element of the charged crime. Id
In State v. Weaver, we held that laboratory results obtained during the course of an autopsy were testimonial. 733 N.W.2d 793, 799–800 (Minn. App. 2007), review denied (Minn. Sept. 18, 2007). The following facts were determinative: the test results were obtained at the medical examiner’s request during an autopsy that occurred during a homicide investigation; the doctor relied on the results in reaching a conclusion on the cause of death; the underlying information was relayed to the jury “in lieu of testimony” at the trial; blood samples were sent to the laboratory after the medical examiner “preliminarily determined that arson had occurred and after appellant had been arrested;” and the technician performing the tests “would have known that the medical examiner’s office was a medical-legal operation.” Id.
And in State v. Johnson, we determined that the district court plainly erred by allowing the state to present an autopsy report through a doctor who was not one of the medical examiners who performed the autopsy. 756 N.W.2d 883, 892 (Minn. App. 2008), review denied (Minn. Dec. 23, 2008). We rejected the idea that the medical examiner’s statutory autopsy duties were “sufficiently independent” of a criminal investigation to render the autopsy report nontestimonial. Id. at 889–90. We pointed out that “Johnson was arrested at the scene. And the autopsy was not performed until approximately 33 hours after death, by which time a homicide investigation presumably had begun.” Id. at 890.
The court declines to find a confrontation violation by doubling down on a confusing record about the time when the radiologist made his report. The defense said that the report of the radiologist came after the police began its investigation and so it was made "in anticipation of litigation." The rub, however, is some sloppy paperwork at the radiologist's office. The time on the report, itself, is "10:34", without a succeeding "a.m. or p.m." This omission allows the court to pronounce that the time notation is "military" time. No one claimed that the police investigation had begun before 10:34 a.m.; indeed, it's the conclusion of the court that these two events occurred independently of each other more or less at the same time. Consequently, the report wasn't prepared "in anticipation of litigation."
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