ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT FOR THE PARISH OF ORLEANS.
For Applicant: Hon. Leon A. Cannizzaro, Jr., District Attorney, Donna R. Andrieu, Assistant District Attorney, Kyle C. Daly, Assistant District Attorney, ORLEANS PARISH DISTRICT ATTORNEY'S OFFICE.
For Respondent: Seth Daniel Tychsen Wayne, ORLEANS PARISH PUBLIC DEFENDER'S OFFICE.
CRICHTON, J., additionally concurring.
[2014-1526 La. 1] PER CURIAM:
The rulings of the courts below are reversed in part and this case is remanded to the trial court for further proceedings consistent with the views expressed herein.
In this pending prosecution for second degree battery in violation of La. R.S. 14:34 and false imprisonment, La. R.S. 14:46, defendant filed a motion to exclude from trial portions of the medical records from Ochsner Hospital in New Orleans, documenting the victim's treatment for a broken nose and black eye in the spring of 2013. According to those records, the victim, defendant's estranged girlfriend and mother of his child, appeared in the emergency room at Ochsner on February 23, 2013 and " report[ed] physical altercation with boyfriend." The state alleges that her injuries occurred on February 19,
2013, when the victim paid defendant a visit, and he kept her confined in the following days to allow her injuries to heal. The victim's initial report and treatment of her physical injuries led to a follow-up session in the hospital with Dr. Milton Anderson, a psychiatrist, on February 25, [2014-1526 La. 2] 2013, in which she again identified defendant as her assailant and informed the doctor that " this isn't the first time he hit me." Those statements prompted a discussion with the psychiatrist of how she could change the pattern of behavior that led to the incident. The discussion also prompted a change in the victim's medication previously prescribed for depression and mood disorders. At that time, the victim made clear she did not intend to file a complaint with the police but the diagnostic impression was " victim of domestic violence" and depression. The records indicate that on February 27, 2013, hospital personnel urged the victim to call the police to report the incident during another follow-up visit in which she reported " that altercation occurred last week near magazine st as the reason for her ED visit." At first, the victim resisted the advice and walked out but she returned with her mother who stated that " this isn't the first time he's done this to her." The record of this visit indicates that the hospital personnel in fact called the police. An officer responded and drew the victim aside in an unrecorded conference. It appears, however, the victim did not make a formal complaint to the police until three weeks later, after which a warrant issued for defendant's arrest. Defendant was apparently not arrested on the warrant until nearly a year later in January 2014.
Defendant also moved to exclude three letters ostensibly written by the victim, one before the incident that formed the basis of the instant prosecution, and two written months afterwards. The state alleges that the victim subsequently committed suicide in the spring of 2014. Given the unavailability of the victim, the state intends to introduce the medical records and letters in lieu of her live testimony at trial.
The trial court granted the defense motions on grounds that introduction of the documentary evidence in substitution of the victim's live testimony would constitute hearsay in violation of Louisiana's evidentiary rules and would trench on defendant's Sixth Amendment right of confrontation. The court specifically found [2014-1526 La. 3] that the victim's statements to the medical personnel at Ochsner were not reasonably related to the treatment and diagnosis of her injuries and were therefore inadmissible as a matter of the hearsay exception provided by La. C.E. art. 803(4). For much the same reason, the court characterized the statements as testimonial for purposes of the Confrontation Clause and therefore inadmissible, given the lack of prior cross-examination. The court further ruled that the letters constituted inadmissible other crimes evidence, even assuming they were properly authenticated and sufficiently connected defendant to the alleged incidents.
In a split-panel decision, the Fourth Circuit denied the state's application for review. State v. Koederitz, 14-0709 (La.App. 4 Cir. 8/22/14) (Ledet, Jenkins, JJ.) Dissenting from that order, Judge Lobrano stated her view that the victim's statements recorded in the medical records were admissible as a matter of hearsay exception provided by La. C.E. art. 803(4). Koederitz, 14-0709 at 7 (Lobrano, J., dissenting) (" The victim in this case had an ongoing and tumultuous relationship with the defendant, her former boyfriend and the father of her child. That fact was, at the least, reasonably ...