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State v. Porter

Supreme Court of Montana

February 6, 2018

STATE OF MONTANA, Plaintiff and Appellee,
AARON ANTONIO PORTER, Defendant and Appellant.

          Submitted on Briefs: November 8, 2017

         APPEAL 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

          For Appellant: Chad Wright, Appellate Defender, Moses Okeyo, Assistant Appellate Defender, Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General, Helena, Montana Marty Lambert, Gallatin County Attorney, Bozeman, Montana


          Beth Baker Justice

         ¶1 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.


         ¶2 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.

         ¶3 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 witnesses:

         ¶4 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."

         ¶5 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.

         ¶6 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."

         ¶7 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.

         ¶8 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 render treatment.

         ¶9 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.

         Dr. 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.

         ¶10 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 reported.

         ¶11 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.

         ¶12 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 ...

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