Travis D. CLARK, Appellant,
STATE of Alaska, Appellee.
Craig Condie, Assistant Public Defender, Palmer, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before : COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
Travis D. Clark appeals his conviction for assaulting his girlfriend, Loretta B. Amouak.
Although our prior decision in this case, Clark v. State, Alaska App. Memorandum Opinion No. 5112 (September 6, 2006), 2006 WL 2578642, contains a detailed description of the underlying facts, the pertinent facts can be described in a few paragraphs:
Amouak, who had been drinking, and whose driver's license apparently was revoked, borrowed Clark's truck and drove it into a ditch. Clark and a friend of Amouak's, Kimberly Yadon, went out to pick up Amouak, and Yadon brought her back home. Several hours later, Amouak called Yadon, and Yadon brought her to the hospital with a fractured nose, a black eye, and bruises on her neck, arms, and legs.
Amouak told the emergency room personnel that she sustained these injuries when her boyfriend ( i.e., Clark) assaulted her. At trial, Clark claimed self-defense: he asserted that Amouak had attacked him, and that he had acted to protect himself. Thus, as we noted in our prior decision, " [t]he main question Before the jury was ... not whether Clark had caused Amouak's injuries [,] but whether ... her injuries resulted from an assault." Clark, Memorandum Opinion No. 5112 at 13, 2006 WL 2578642 at *7.
Although Amouak was scheduled to be a witness at Clark's trial, she ultimately claimed the Fifth Amendment and declined to testify. To prove how Amouak sustained her injuries, the State relied on hospital records which described the statements that Amouak made to the emergency room personnel-in particular, her assertions that she sustained her injuries as the result of an assault by her boyfriend.
The question presented on appeal is whether the trial judge properly allowed the State to introduce this hearsay evidence ( i.e., the hospital records describing Amouak's statements to the emergency room personnel) or whether, as Clark contends, this evidence should have been excluded as " testimonial" hearsay under the confrontation clause of the Sixth Amendment as construed in Crawford v. Washington  and Davis v. Washington. 
The admissibility of the hospital records under Alaska Evidence Rule 803(4) , the hearsay exception for statements made for purposes of medical diagnosis or treatment
Before we turn to the confrontation clause issue, we should briefly recapitulate the conclusion we reached in our previous decision in Clark's case concerning the admissibility of the hospital records under the hearsay rules.
Amouak's statements to the emergency room personnel were hearsay, in that they were introduced at Clark's trial for the truth of the matters asserted in the statements. However, for the most part, those statements were admissible under the hearsay exception codified in Alaska Evidence Rule 803(4)-the exception for statements made for the purpose of medical diagnosis or treatment.
Under Rule 803(4), the State could introduce evidence that Amouak told the emergency room personnel that she sustained her injuries as a result of being struck by another person (as opposed to being injured in a car accident, or in a fall, or by some other cause), as well as evidence of Amouak's statements describing such things as the number of blows, the manner in which they were inflicted, and the amount of force behind these blows-for all of this would be relevant to medical diagnosis and treatment.
However, the medical diagnosis and treatment hearsay exception does not normally encompass a patient's identification of the person who hurt them or a patient's attributions of fault. Because of this limitation,
Clark had a valid hearsay objection to the hospital records to the extent that they reported that Amouak identified Clark as the one who struck her, or to the extent that Amouak might have asserted that Clark had no justifiable reason to do so.
But as we explained in our prior decision, Clark made no hearsay objection when the State offered the hospital records. Several days later, Amouak invoked her privilege against self-incrimination (after testimony at the trial indicated that Amouak had been driving while intoxicated, and driving with a revoked license, when she borrowed Clark's truck). Only then, after Amouak invoked her Fifth Amendment privilege and refused to testify, did Clark's attorney belatedly raise a hearsay objection to the hospital records. The trial judge ruled that Clark's objection was untimely.
In our earlier decision in Clark's appeal, we upheld the trial judge's ruling that Clark's hearsay objection was untimely. Clark's primary argument in favor of allowing him to make a tardy objection was that he purportedly had no reason to object to the hearsay in the hospital records until it became clear that Amouak was unavailable as a witness. But we noted that Amouak's availability as a witness did not affect the admissibility of the hospital records-because the medical diagnosis and treatment hearsay exception " does not hinge on whether the declarant is available to testify" . We further explained that, under Alaska law, " it is proper [for] a trial court ... to receive hearsay when no objection has been made" . For these reasons, we concluded that Clark's trial judge " did not err by admitting the hearsay testimony that Clark now challenges or by denying Clark's belated motion to strike Amouak's statements on hearsay grounds." 
Given our ruling on this hearsay question in our prior decision, the only issue Before us now is Clark's claim that, even though Amouak's out-of-court statements may have been properly admitted under the law governing hearsay evidence, those statements nevertheless should have been excluded under the confrontation clause of the Sixth Amendment.
The district court's findings on remand
In our earlier decision in Clark's case, we concluded that we could not resolve the confrontation clause issue without additional information regarding the circumstances surrounding Amouak's statements at the emergency room. We therefore directed the district court to hold an evidentiary hearing to inquire into the nature and purpose of Amouak's statements to the emergency room personnel.
At the evidentiary hearing, Amouak testified that her purpose in telling the doctor what happened ( i.e., how she came to be injured) was to obtain medical treatment-because she was concerned about the injuries to her face. Amouak said that she heard something break in her face, and she was worried that her face would be deformed.
As to the emergency room doctor and nurse who interviewed Amouak, the district court concluded that they questioned Amouak about her injuries, and recorded Amouak's answers, purely for medical purposes.
Clark's attack on the district court's findings on remand
In the present appeal, Clark argues that he was denied due process of law at the evidentiary hearing on remand. Clark argues that the district court committed error by relying on Amouak's testimony at that hearing after Amouak invoked the Fifth Amendment rather than answer certain questions that Clark's attorney posed to her during cross-examination.
The questions that Clark's attorney wanted to ask Amouak dealt with the facts (1) that Amouak had apparently been driving while intoxicated, and driving with a revoked license, when she borrowed Clark's truck on the night of the incident, and (2) that when Amouak summoned her friend, Kimberly Yadon, to transport her to the hospital, they agreed that they would lie to the authorities about Amouak's driving. Amouak invoked her Fifth Amendment privilege rather than answer these questions concerning what happened earlier on the evening of the assault (Before she reached the hospital).
Clark now argues that, because Amouak invoked her Fifth Amendment privilege and refused to answer questions about these matters when she testified at the evidentiary hearing on remand, the district court should have struck Amouak's evidentiary hearing testimony in its entirety. We disagree. It is true that when a witness invokes an evidentiary privilege and refuses to answer questions pertaining to their potential bias or motive to fabricate, a court may be required to strike the witness's testimony in its entirety. But if " the specific subject matter [of] the question as to which the privilege is invoked is cumulative or remote" , or if " the defendant is [otherwise] afforded an adequate independent means to establish the witness'[s] bias" , the court can allow the witness's testimony to be considered by the finder of fact. Jackson v. State, 695 P.2d 227, 230 (Alaska App.1985).
Here, the finder of fact was the district court itself, and the court was well aware of the factual basis for the defense attorney's questions. At Clark's trial, Kimberly Yadon testified that, on the night of the incident, Amouak was drinking and had driven Clark's truck into a ditch. Yadon further testified that, at Amouak's request, she agreed to lie about whether Amouak had been driving that evening-so that Amouak could escape any charges connected to her driving of the truck.
At the evidentiary hearing on remand, Clark's attorney relied on these facts to argue that Amouak's testimony at that evidentiary hearing should not be believed. When the prosecutor questioned whether Clark's attorney could rely on testimony given at trial to attack Amouak's testimony at the evidentiary hearing on remand, the district court declared that this was proper, and that the court would take judicial notice of the testimony already given at Clark's trial. Thus, even though Amouak refused to answer questions on these matters, Clark's attorney was able to argue his point.
Accordingly, we hold that the district court could properly consider and rely on Amouak's testimony at the evidentiary hearing despite Amouak's refusal to answer the defense attorney's questions on these matters.
Did the admission of the hearsay in the hospital records violate Clark's Sixth Amendment right to confrontation?
The remaining question is whether the confrontation clause of the Sixth Amendment precluded the State from introducing the hospital records at Clark's trial when those records contained hearsay evidence of Amouak's statements describing the assault.
In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court held that, even when hearsay evidence is admissible under the rules of evidence governing hearsay, the confrontation clause of the Sixth Amendment prohibits the government from introducing evidence of " testimonial" hearsay statements at a criminal trial unless the declarant ( i.e., the person who made the out-of-court statements) testifies at the trial, or unless the government shows that the declarant is unavailable to testify and that the defendant had a prior opportunity to cross-examine the declarant about those statements.
Although Crawford declares that a statement is clearly " testimonial" if it is " [a] solemn declaration or affirmation made for the purpose of establishing or proving some fact,"  the Supreme Court did ...