Submitted on Briefs: November 8, 2017
FROM: District Court of the Eighteenth Judicial District, In
and For the County of Gallatin, Cause No. DC-14-243C
Honorable John C. Brown, Presiding Judge
Appellant: Chad Wright, Appellate Defender, Moses Okeyo,
Assistant Appellate Defender, Helena, Montana
Appellee: Timothy C. Fox, Montana Attorney General, Jonathan
M. Krauss, Assistant Attorney General, Helena, Montana Marty
Lambert, Gallatin County Attorney, Bozeman, Montana
A Gallatin County jury convicted Aaron Antonio Porter of
felony aggravated assault under § 45-5-202, MCA, for
strangling his domestic partner, Michelle Allen, during a
domestic dispute. Allen did not appear or testify at trial.
Over Porter's objection, the District Court admitted
testimony from an emergency room physician about Allen's
statements during her examination. Porter argues on appeal
that the doctor's testimony violated his Confrontation
Clause rights and was not admissible under the hearsay
exception for statements made for medical diagnosis or
treatment. We affirm.
AND FACTUAL BACKGROUND
One morning in August 2014, Michelle Allen arrived at work
with a black eye and bruises on her neck, face, and arms. Her
supervisor, Michael Bonander, called the police to report
that Allen had been assaulted. Belgrade Police Officer Jesse
Stovall responded and spoke to Allen. She identified Porter
as her attacker. After the interview, Officer Stovall brought
Allen to the emergency room. Allen signed a medical release
form authorizing the hospital to release patient health
information to the police. Dr. Tiffany Kuehl, an emergency
room physician and the medical director of the Sexual Assault
Nurse Examiner (SANE) team at the hospital, examined Allen.
The exam revealed tenderness, bruises, and other markings on
Allen's back, shoulders, neck, face, arms, and legs. Dr.
Kuehl noted that Allen's injuries were consistent with
strangulation. Following the medical examination, the police
arrested Porter for assault. After his arrest, Porter waived
his Miranda rights and gave an interview to the
police. The State charged Porter with felony aggravated
assault under § 45-2-202, MCA.
The case went to trial in September 2015. Allen did not
testify, despite the District Court's issuance of a
material witness arrest warrant compelling her to appear.
Along with photographs of Allen's injuries and portions
of Allen's medical records, the State called four other
Sharina Johnson, Allen's upstairs neighbor, testified
that she heard "thuds" coming from the apartment
the afternoon of the assault. She heard Allen tell Porter to
stop hitting her and Porter reply, "No." Johnson
also stated that she heard Allen "crying
hysterically" and "gasping for air."
Bonander testified that Allen was "really upset"
when she came to work the next morning. He testified that she
was covered in bruises on her face, neck, and arms, and that
he called the police.
Officer Stovall testified that when he first responded to the
incident, he noticed that Allen had a black eye, a swollen
cheek, and abrasions and bruises all over her body. He
testified that he transported her to the hospital for
examination. He stated that he was not present during the
medical examination, but did talk to Dr. Kuehl afterwards
pursuant to the release signed by Allen. Officer Stovall also
testified to Porter's responses from his police
interview. Porter told Office Stovall that he and Allen had
gotten into a fight over the cable bill and began pushing and
shoving each other. Porter stated that while pushing and
shoving each other in the doorway of the bedroom they tripped
and fell into the bedroom wall, cracking it. They then ended
up struggling on the bed. Porter told the officers that he
grabbed Allen's throat after she grabbed his. He reported
that he held her throat for a period of "maybe"
twenty to twenty-five seconds, "enough just to get her
off of [him]." When the officers asked whether he
squeezed Allen's neck hard enough for her to lose oxygen,
Porter responded, "I probably did-I don't know like
I said we were both heated and both arguing."
Dr. Kuehl testified to her examination of Allen. She
testified that Allen had bruises and abrasions all over her
body, including on her shoulder, back, neck, face, arm, hand,
knee, and hip. She stated that Allen "had a tender area
across the entire anterior or front of her neck, and above
the tender area and bruise there were petechia, " which
she described as "tiny purplish red spots that appear on
the skin when very small capillary blood vessels are
ruptured." Dr. Kuehl observed that the injuries on
Allen's neck and face were indicative of strangulation.
Over Porter's objection, Dr. Kuehl also testified about
the "verbal history" of the incident she elicited
from Allen. Dr. Kuehl testified that she takes verbal
histories from patients because "[i]t is very important
to understand what the injuries might be, and also to assess
their safety and need for further treatment." She stated
that she relies on what patients tell her to diagnose and
Dr. Kuehl asked Allen about the identity of her attacker. Dr.
Kuehl explained the importance of this question, stating,
I attempt to obtain an identity, aiming at guaranteeing the
safety of the patient, and where they will go home, so if
they were attacked by someone in their apartment, I make sure
that I have alternative arrangements for them to stay when I
discharge them from the emergency department.
Kuehl explained further that, in apparent domestic violence
cases, "It is my job to ensure the safety of all my
patients, so it is my habit to ensure that they are living in
safe circumstances." She acknowledged that her role was
to "investigate" a victim's injuries related to
what they report happened and to "make sure that there
is an accurate representation of the injuries, their
measurements and their level of seriousness so that the
patient may be able to pursue a case in court and have
appropriate justice." Dr. Kuehl reported that Allen told
her she was thrown against the wall to the point of feeling
dazed and strangled twice by her domestic partner, but that
Allen did not identify him by name.
Allen reported to Dr. Kuehl that during the first
strangulation she was lifted off the ground by the throat.
Allen told Dr. Kuehl that during the second strangulation she
was strangled to the point of unconsciousness. Dr. Kuehl
testified that it is also her "custom and habit" to
ask patients involved in domestic assaults "what's
going through their mind during the assault." She stated
that Allen told her that, "at the moment that she lost
consciousness, during the second strangulation, she felt that
she was going to die." Dr. Kuehl testified that, in her
many years of experience working with victims of
strangulation, such feelings of impending death were commonly
Allen's verbal history gave Dr. Kuehl concern that
Allen's carotid arteries may have been injured by
excessive pressure, which could cause acute stroke or death
in the days or weeks subsequent to an episode of
strangulation. She ordered a CT scan of Allen's neck to
evaluate this risk. The scans came back normal. Dr. Kuehl
ultimately diagnosed Allen with strangulation and asphyxia,
suspected posterior rib fracture, a concussion, and bruising.
She said that the cause of Allen's injuries was
"assault by her domestic partner with
strangulation." Dr. Kuehl testified that in her opinion
it was a near fatal strangulation.
Porter had sought to exclude Dr. Kuehl's testimony, in
part because Allen's statements during her exam
constituted testimonial hearsay and were inadmissible. The
District Court denied Porter's motion, reasoning that the
statements were not testimonial in nature and therefore did
not trigger the constitutional protections of the
Confrontation Clause. The court held that the statements ...