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HEADNOTE: Frederick Roscoe Coates v. State of Maryland, No. 1943, September Term, 2005 HEARSAY; MARYLAND RULE 5-803(b)(4); STATEMENTS MADE FOR MEDICAL PURPOSE; PATHOLOGICALLY GERMANE. Court erred in admitting statements made by child sexua l abuse victim to a pediatric nurse practitioner, train ed in sexu al assault exa mination, b ecause the child's statements, made fourteen m onths after th e alleged ab use, at a time when the child was not experiencing any medical p roblems, w ould not have been understood by the child as statements made for a medical p urpose. In a ddition, som e of the nurse's question s were no t pathologic ally germane, in that they were not relevant to a medical concern and were in the nature of an interrogation.

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1943 SEPTEMBE R TERM, 2005 _________________________________

FREDERICK ROSCOE COATES v. STATE OF MARYLAND _________________________________ Hollander, Eyler, De borah S ., *Bloom, Theodore G. (Retired, specially assigned), JJ. _________________________________

Opinion by Hollander, J. _________________________________

Filed:

August 31, 2007

* Bloom, J., now deceased, participated in the hearing an d confere nce of this case, and participated also in the decision and adoption of this opinion.

This appeal requires us to consider Maryland Rule 5-803(b)(4), the hearsay exception for statements made "for purposes of medical diagnosis or treatment." We must determine, inter alia , whether th e circuit cour t erred or abu sed its discretion in admitting s tatements made in November 2003 by Jazmyne T., a child sexual abuse victim, to a nurse practitioner. The child's out-of-court statements, made when she was almost eight years old, were a key part of the State's evidence against Frederick Roscoe Coates, appellant, the former boyfriend of the victim's mother. At a trial held in May of 2005, a jury in the Circuit Court for Montgom ery County convicted Coates of second degree rape (vaginal intercourse in the victim's bedroom; Count Two); second degree sexual offense (fellatio; Count Three); and child abuse (Count Five), for which he was sentenced to a total term of thirty-five years' imprisonm ent. 1 Coates presents two questions for our review, which we quote: I. Did the trial court err in admitting the comp lainant's out-of-court statements as substantive evidence under the medical treatment and diagnosis exception to the hearsay rule, where the statem ents were made 14 months after any abuse had ended and the State failed to meet its burden regarding the declarant's state of mind? Did the trial court err in permitting an expert witness who offered the hear say to also testif y about the com plain ant's cre dibility?

II.

For the reasons that follow, we shall reverse the convictions and remand for a new trial.

The jury did not reach a verdict on Count One, charging second degree rape (vaginal intercourse in a bathroom at a m all), or Count Four, charging second degree sexual offense (anal int ercour se). The court d eclared a mistria l as to tho se char ges.

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I. FACTUAL AND PROCEDURAL SUMMARY Jazmyne was b orn on Dece mber 1 9, 1995 . The alleged acts of abuse last o ccurred in September of 2002, an d were d iscovered in the Fall of 2 003. A f ew we eks later, in November 2003, Jazmyne was examined by Heidi Bresee, a pediatric nurse practitioner. During the examination, Jazmyne made statements implicating appellant. On February 17, 2005, the State notified ap pellant that it inten ded to call B resee as "an expert in fo rensic examinations of sexual assaults." In a letter to defense counsel on February 20, 2005, the State amp lified the notic e, stating: Ms. Bresse [sic] will testify that her observations of the victim's vaginal area are consistent with Jazmyne's disclosure of vaginal penetration. Ms. Bresse [sic] will opine that an object penetrated Jazmyne's vagina. The object cou ld be an adult male's penis or fingers. She has ruled out a child's fingers as the penetrating object. She will further opine tha t Jazmyne's hymen was narrow and that the loss of hymen occurred over tim e from abuse. The observations are consistent with repeated abuse. The State may also introduce the videotape of the victim's sexual assault examination.[2] On March 18, 2005, appellant filed a "Motion in Limine to Exclude T estimon y," seeking, inter alia , to bar Bresee's opinion testimony and admission of the videotape. The defense argued, am ong other things, that Jaz myne's statem ents to Bres ee were n ot admissible under Md. Rule 5-803(b)(4), the hearsay exception for statements made for purposes of medical diagnosis or treatment, because "Jazmyne was not seeking medical treatment when

During discovery, the State produced the videotape of Bresee's sexual assault examination. 2

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she spoke to Ms. Bresee." Further, appellant claim ed that M s. Bresee's o pinion w ould invade the jury's role in judging the credibility of witnesses, because Bresee "would merely serve to vouch for" the credibil ity of Jazm yne. In support of his position that Jazmyne was not seeking medical treatment at the time of her meeting with Bresee, appellant pointed to a statement Jazm yne m ade s ome ten d ays before the examination, in which she allegedly said she "`wanted these pe ople to go to jail.'" 3 The defense also urged the court to consider that Jazmyne did not present in an emergency situation. Rathe r, she w as seen "one yea r after th e allege d incide nts end ed. . . ." Moreover, appellant argued that Jazmyne "had no symptoms, no pain, and no injuries to be examined or treated," an d Bresee "did not co nduct a co mplete medic al exam of Jazm yne, a complete pelvic exam, draw blood to test for sexually transmitted diseases, do vaginal swabs for gonor rhea an d chlam ydia, or pro vide an y treatmen t." The State countered that Jazmyne's statements were admissible under Rule 5803(b)(4) because "they were taken and given for dual medical and forensic purposes." As evidence of a med ical purpos e for the ex am, the State noted that Bresee referred Jazmyne for

The cou rt held a pretrial h earing on F ebruary 17, 20 05, pertainin g to the discovery of certain confidential records. Appe llant sought re cords from the Mo ntgomery C ounty Child Protective Services ("CP S"), as well as re cords relating to "a child abuse investigation and a CINA proceeding." It appears that Jazmyne 's statement th at she "w anted these people to go to jail" is included in these confidential records. The trial court determ ined that it would permit trial counsel to r eview the records, w ith the understanding that they would be inadmissible at trial without the court's permission. The record does not indicate that the court gave the defense permission to use the confid ential rec ords. 3

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mental health counseling as well as HIV testing. Further, it maintained that Bresee's physical finding s were consiste nt with the child 's disclo sure of sexual abuse. At a motion hearing on April 7, 2005, defense counsel expressed concern that Bresee's testimony lacked a sufficient basis in fact and would not be limited to her physical findings. Rather, she would tes tify to "a significa nt connec tion" between the physical findings and appellant. The State responded that it would show that Coates had access to the child without regard to Bresee. The State also represented that it would only seek to use the videotape in the event that Jazmyne's credibility was impeached.4 The cou rt said, in part: 5 As I understand it, the questions to [Ms. Bresee] having to do with any allegations in this incident are . . . whether or not certain f indings were consiste nt with . . . multiple acts of i ntercou rse or pe netratio n. . . . Ms. Bresee is not going to say hav ing [sic] anythin g to do w ith [Coates's] access to [Jazmyne]. She's not going to say anything about that. The State's going to argue that, once they've brought out through someone else that there was access to the child, but they're not going to ask Ms. Bresee that question.
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The vide otape wa s never intro duced at trial.

At the motion hearing, the court asked the prosecutor whether she intended to seek introduction of Jazmyne 's statements to Bresee under Maryland's "tender years" statute. See Md. Code (2001, 2006 Supp.),

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