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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 395 September Term, 1997

BOYD CALEB LOW v. STATE OF MARYLAND

Thieme, Byrnes, Alpert, Paul E. (Ret'd, Specially Assigned), JJ. Opinion by Thieme, J. Dissent by Alpert, J.

Filed: January 29, 1998

Boyd Caleb Low, the appellant, was convicted by a jury in the Circuit Court for Montgomery County of second degree rape, second degree sexual offense, and child abuse. On appeal, he raises five

questions, which we have reordered and reworded: 1. Did the trial court err in finding that the State's expert was a treating physician who was permitted to relate hearsay? Did the trial court err in denying a mistrial after the court itself referred to what "the defendant" did instead of what "the perpetrator" did? Did the trial court err in excluding from evidence the fact that the Department of Social Services had determined that a previous complaint by the victim was unfounded? Did the trial court err in admitting the appellant's statement that he had kissed the victim? Did the trial court err in permitting the prosecutor to suggest that the child victim "pretend like it is just you and me in the room"?

2.

3.

4.

5.

Because we reverse the decision of the trial court based on the first issue presented on appeal, we need not reach the merits of the remaining four issues. Background The appellant is the brother-in-law of Janine Knott. Janine was eleven years old, her father died. When

The appellant and

his wife then moved in with Janine's family, and the appellant undertook Janine's care and supervision during those times when her mother was away from the home.

At trial, Janine testified that the appellant took her to his bedroom and to a shed in the yard at times when no other adults were home. With great reticence, Janine testified that appellant

touched her in a "private part" in the "front" and in the "back," and that he "stuck something into me," which hurt. court identification of the appellant. She made an in-

On cross-examination,

Janine admitted telling several lies, including one that got the appellant into trouble with her mother. On 30 April 1996, Janine was examined by Dr. Narita

Estampador-Ulep, a pediatrician and child abuse expert. then twelve years old.

Janine was

The doctor testified that Janine's vagina

and anus both showed evidence of trauma and penetration by a foreign object. In relating what Janine had told her, the doctor

did not refer to the appellant by name or by the designation "defendant." She further testified that Janine told her that she

was hurt when "the perpetrator" put his penis in her vagina and in her "butt" more than ten times. We shall reserve for that portion

of our opinion dealing with issue one further facts related to the testimony of Dr. Estampador-Ulep. The appellant denied abusing Janine and attributed her dislike of him to his attempts to fulfill her father's role as

disciplinarian. made her angry.

On cross-examination, Janine admitted that this

Following a four day trial the appellant was convicted of the aforementioned offenses and subsequently sentenced to consecutive 2

terms of incarceration totaling 55 years, with all but sixteen years suspended, to be followed by a term of probation. timely appeal was then noted. The Legal Foundation The appellant first complains that the trial court erred in ruling that Dr. Estampador-Ulep was a treating physician and, ergo, it erred in admitting various portions of her testimony at trial. In addressing that issue, we seek guidance from Maryland Rule 5803, entitled "Hearsay Exceptions: Unavailability of Declarant Not Required." Subsection (b)(4) of that rule specifically provides This

that the following statements are admissible at trial regardless of availability of the declarant: Statements for Purposes of Medical Diagnosis or Treatment. -- Statements made for purposes of medical treatment or medical diagnosis in contemplation of treatment and describing medical history, or past or present symptoms, pain, or sensation, or the inception or general character of the cause or external sources thereof insofar as reasonably pertinent to treatment or diagnosis in contemplation of treatment. A decade ago this Court had occasion to consider the rationale behind the rule in Cassidy v. State, 74 Md. App. 1 (1988).1 In

The dissent acknowledges our decision in Cassidy but states that because Cassidy is so factually distinguishable from the instant case, the substantive analysis undertaken in it is not directly applicable to the case at bar. We do not take issue with the proposition that the facts in Cassidy differ from those now before us. As the dissent correctly explains, the child victim in Cassidy, who was two years old, did not testify. (continued...) 3

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that case, Cassidy was convicted by a jury of child abuse and assault stemming from alleged acts of physical abuse committed upon the two-year-old daughter of Cassidy's live-in girlfriend. Central

to that case was whether Cassidy was, in fact, the perpetrator of the acts. Three days after the occurrence of the abusive conduct

that formed the basis for the charges against Cassidy, the victim was brought to Prince George's County General Hospital, where she was examined by Dr. Pullman, a representative of Child Protective Services. During the course of the examination, Dr. Pullman

noticed several signs of physical abuse, as well as potential

(...continued) Furthermore, the doctor in that case, who testified at trial, stated that when the victim was asked "Who did this?" she replied "Daddy [Cassidy] did this." The victim in the case now before us did testify and at no time did Dr. Estampador-Ulep testify that Janine affirmatively identified the appellant as the perpetrator. Preliminarily, we find it noteworthy that, although Janine did testify, her testimony was vague and gave virtually no factual details. Numerous recesses were taken between repeated attempts to elicit an answer to the question "What bad thing did [the appellant] do to you?" Finally, after being granted permission to lead the witness, the State was able to obtain from Janine only the testimony that she had been touched on her "privates" in the "front" and in the "back." Janine was still unable to provide a clear picture of what had allegedly occurred. Therefore, although technically testifying, unlike the victim in Cassidy, the victim in the case at bar -- because she provided so little valuable information -- most assuredly shed little light on the events of the abuse. We cannot conclude as does the dissent that because the two cases are factually dissimilar that the legal analysis undertaken in Cassidy is inapplicable to the case before us. The detailed analysis of a treating versus examining physician undertaken by Judge Moylan in Cassidy is binding precedent on us that is in no way eroded due to the factual dissimilarities between the two cases. 4

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sexual molestation.

When asked on several occasions, "Who did this 74 Md. App. at 5-6.

to you," the victim simply replied, "Daddy."2

The State offered as one of several theories of admissibility that the victim made the declarations to a physician consulted for the purpose of treatment. 74 Md. App. at 25. In exploring that

contention, we explained the traditionally recognized rationale behind admitting such statements, notwithstanding their presumptive untrustworthiness as hearsay: Whether dealing with existing bodily feelings, past symptoms, or medical history as to the cause or source of the bodily condition, the guarantee of trustworthiness was precisely the same. Spontaneity was no longer the guarantee. The guarantee, rather, was that no one would willingly risk medical injury from improper treatment by withholding necessary data or furnishing false data to the physician who would determine the course of treatment on the basis of that data. 74 Md. App. at 26; see also Candella v. Subsequent Injury Fund, 277 Md. 120, 124 (1976) (testimony by a treating physician as to the medical history of a patient "is admitted under an exception to the hearsay rule, the underlying rationale being that the patient's statements to his doctor are apt to be sincere when made with an awareness that the quality and success of treatment may largely depend on the accuracy of the information provided the physician");

Although it appears that the appellant in Cassidy was not the child's biological father, the evidence indicated that the victim nevertheless referred to him as "Daddy." Thus, there was no dispute as to whom the victim was referring when answering questions posed by the doctor. 5

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Parker v. State, 189 Md. 244, 249 (1947) ("It may be seen that, when attended by a physician for the purpose of treatment, there is a strong inducement for the patient to speak truly of his pains and sufferings...."). That exception to the hearsay rule does not apply, however, when the physician is acting in a capacity other than as a treating physician. In the case of an examining physician, for example, the

guarantee of trustworthiness that accompanies the testimony of a treating physician is no longer present. explained in Candella, supra, at 124: In Maryland, however, we have not extended this principle [of allowing an attending physician to testify as to the medical history as related by the patient] to include the case in which the patient's history has been related to a nontreating physician, Rossello v. Friedel, 243 Md. 234, 241-42, 220 A.2d 537 (1966); Wilhelm v. State Traffic Comm, supra, 230 Md. at 97; see Wolfinger v. Frey, 223 Md. 184, 190-91, 162 A.2d 745 (1960); Parker v. State, 189 Md. 24, 248-50, 55 A.2d 784 (1947); in these instances, the trustworthiness which characterizes the declaration is no longer assured, since the patient is aware that the statements are being received primarily to enable the physician to prepare testimony on his behalf rather than for purposes of diagnosis and treatment. Thus, while statements made to an examining physician may be admitted at trial, they may be so admitted only for the limited purpose of showing the expert's reasons for his or her opinion. The hearsay statements may not, however, be admitted as substantive As the Court of Appeals

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evidence.

Cassidy, 74 Md. App. at 28-29 (citing Beahm v. Shortall,

279 Md. 321, 327 (1977)). With the foregoing law as our predicate, we continued in Cassidy to determine whether the victim's assertions to Dr. Pullman that, in effect, "Daddy did this," were made to a treating

physician and admissible at trial despite the fact that they were undisputably hearsay, or whether they were made only to an For

examining physician and, accordingly, inadmissible hearsay.

numerous reasons, we held in Cassidy that the victim's statements to the physician did not qualify as statements made in

contemplation of medical treatment because Dr. Pullman was not a treating physician.3 The critical reason espoused by our Court was

because it could not be shown from the record that the victim in Cassidy "ha[d] a strong motive to speak truthfully and accurately because the treatment or diagnosis [would] depend in part upon the information conveyed." 74 Md. App. at 29. To the contrary, the

evidence indicated that the two-year-old victim in that case possessed no understanding as to why Dr. Pullman was questioning her. We further explained: The doctrinal predicate -- the underlying reassurance of trustworthiness -- upon which this entire exception to the Hearsay Rule rests was, therefore, entirely lacking in this

In Cassidy, this Court listed various reasons why the statements should have been excluded at trial. Because only some of those reasons are directly applicable to the case before us, we need not and do not reiterate the entire opinion. 7

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case. The two-year-old declarant did not understand the nature or purpose of her interview with Dr. Pullman. She was not mature enough to appreciate the critical cause-and-effect connections between accurate information, correct medical diagnosis, and efficacious medical treatment. She was not advanced enough to possess the concerned physical self-interest which is at the very core of this particular evidentiary theory. 74 Md. App. at 30.4 assertions by the The bottom line in Cassidy was that the two-year-old child to the physician were

inadmissible hearsay. The Factual Foundation Turning to the instant case, the underlying facts that neither the parties nor this a Court disputes and are child as follows: expert, Dr. was

Estampador-Ulep,

pediatrician

abuse

employed by the Montgomery County Department of Health and Human Services ("DHHS"); then twelve-year-old Janine was referred to Dr. Estampador-Ulep by a social worker for a complete medical

evaluation; during the course of her examination of Janine, Dr. Estampador-Ulep performed a comprehensive review of the child, including eyes, ears, nose, throat, skin, cardiovascular, muscular,

We further pointed out that the assertion "Daddy did this" was in no way germane or necessary to the medical treatment of the child. We readily acknowledged that Dr. Pullman obviously may have had a "social obligation" to the victim to see to it that she be extracted from any potentially abusive situation. Nevertheless, we recognized that the social concern is not the same as a medical concern for the purposes of the exception to the hearsay rule. 74 Md. App. at 36-37. 8

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skeletal, central nervous system, social adjustment, and sleeping disturbances, as well as ordering laboratory tests; during the course of that examination, Dr. Estampador-Ulep noted evidence of sexual trauma to Janine; of subsequent opinion to that the no examination, further Dr.

Estampador-Ulep

was

the

medical

treatment of Janine was necessary; and, Dr. Estampador-Ulep never saw Janine again. The State and trial court alike viewed those facts in their totality as a sufficient definition of a "treating physician" within Rule 5-803(b)(1). Because Dr. Estampador-Ulep was at best

an examining physician, we cannot agree. Reconciling the Legal Foundation with the Factual Foundation In finding that Dr. Estampador-Ulep was a treating as well as an examining physician for the purpose of Rule 5-803(b)(4), the trial court considered the plethora of testimony elicited on the issue and ultimately held: Based on the testimony that I have heard, it is clear, number one, that Dr. EstampadorUlep is an examining physician. I cannot conclude that she is only an examining physician who came into this case solely for the purpose of rendering an opinion as an expert with respect to child abuse or sexual abuse. The examination here was not only for that purpose, regardless of how Janine came to her, but was also for the purpose of possible treatment.

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Her exam went further than just an exam of the genital or rectal or anal area. She examined the patient in her entirety for possible treatment. And I cannot but conclude that based on the testimony I have heard in this case that Dr. Estampador-Ulep was an examining and a treating physician. None of the reasons given by the trial court as to why Dr. Estampador-Ulep was a treating physician is availing. We explain.

First, the doctor's standard operating procedure of taking an oral history from the patient's parent, meeting with the patient, and asking the child patient if he or she knew why he or she was there does not in and of itself qualify her as a treating

physician.

Dr. Estampador-Ulep testified that after following the

previous procedures she then "might say mom or dad is concerned about your health because of some unhappy experience that might have happened to you." There was, however, no evidence adduced at

trial that Janine was in fact asked if she knew why she was there, or, even if asked, what Janine's reply might have been. In other

words, Dr. Estampador-Ulep's usual operating procedure, even if employed in relation to Janine, did not give the impression of a doctor who would necessarily treat Janine on future occasions. In

fact, when asked by defense counsel what her purpose was in conducting the examination of Janine, Dr. Estampador-Ulep replied only "[f]or complete medical evaluation." the doctor of potential treatment. No mention was made by

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Second,

Dr.

Estampador-Ulep

also

testified

that

had

the

examination of Janine suggested the need for further medical treatment she would then have asked Janine's mother if she wished Dr. Estampador-Ulep to perform that treatment or preferred that Janine's private physician continue such treatment. The doctor

also explained that had Janine's mother wanted her to provide the treatment she could have and would have provided it. For two

reasons, however, this fact does not qualify the doctor as a treating physician under the applicable rule. Preliminarily, this Court is not entirely convinced by the record that Dr. Estampador-Ulep "could have" provided such In

continuing treatment to Janine even had her mother so desired.

the Shady Grove Adventist Hospital Report prepared as a result of the examination of Janine, the following language appears on a page entitled "Follow-Up Instructions - Sexual Abuse and Assault":
You can continue care at one of these agencies: 1. Your personal physician 2. STD Clinic, Montgomery County Department, Silver Spring, 217-1760 3. Community Clinics 4. Community Health Centers 5. Planned Parenthood 6. Other Health

Check marks were placed next to items number one (your personal physician) and three (community clinics) as potential options for Janine. Not only was there no suggestion that Janine could receive 11

follow-up

treatment

from

Dr.

Estampador-Ulep

at

DHHS,

but,

according to the form, that was not even an option for Janine's mother to pursue. And, with the obvious inclusion of a catchall

category of "other" with the capability of specifying another mode of treatment on a blank line, we have trouble understanding why Dr. Estampador-Ulep's name was not inserted as an option under number six if she could have subsequently treated Janine. Nevertheless, even assuming for the sake of argument that Dr. Estampador-Ulep could have provided Janine with subsequent

treatment, the subjective beliefs of the doctor as to what she could and would do are immaterial to the issue. The heart of the

issue returns to the guarantee of trustworthiness emphasized in Cassidy, and, in order to maintain that trustworthiness, Janine must have contemplated the possibility of further treatment by the doctor. The fact that Dr. Estampador-Ulep thought she could give

Janine follow-up treatment does not mean that Janine knew she could receive such follow-up treatment from the doctor, absent evidence that Dr. Estampador-Ulep communicated those intentions to Janine or Janine's mother. before us. And in the case at bar we have no such evidence

Additionally, even if Dr. Estampador-Ulep had rendered

treatment, her doing so would have been incidental and secondary to her primary role as a forensic examiner. Third, in determining that Dr. Estampador-Ulep was a treating as well as an examining physician, the trial court relied on the

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fact that Janine was given a complete physical examination in areas other than those affected by the alleged sexual abuse. We cannot

reach the conclusion, as did the trial court, that because Janine was examined in areas of her body other than those pertaining to potential sexual abuse she necessarily realized that the doctor could perform further treatment of her. The conclusion that we

instead draw is that a child of twelve years,5 who has never before been seen by a doctor (and will never again be seen by this doctor), who is poked at and prodded in virtually every area of her body, and who is asked a multitude of questions, some quite sensitive in nature, is most likely, at the very least, an

extremely intimidated little girl, who has little grasp of why she was sent to this strange doctor in a strange setting. If anything,

Janine had a right to be downright suspicious as to why the doctor was examining her in body areas other than those stemming from the complained of incident, and that, in our opinion, would have promoted Janine's distrust of and perhaps dishonesty with the doctor much more than it would have facilitated a relationship of trust. As we pointed out in In re Rachel T., 77 Md. App. 20, 34

(1988), the declarant's subjective purpose in making any statements

Although Janine was significantly older than the child victim in Cassidy, given the facts in this case we do not believe that a twelve-year-old child any more than a two-year-old child would have assumed that Dr. Estampador-Ulep was examining her for the purpose of subsequent treatment. The age discrepancy in the two cases presents no meaningful distinction for purposes of our analysis. 13

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to a physician is of vital importance in determining whether to admit those statements as substantive evidence even though hearsay. And, given the facts before us, we find no evidence that Janine's subjective intent when being examined and interviewed by Dr. Estampador-Ulep was to communicate potential ailments or abuse in hopes of further treatment. In sum, given the specific facts in this case, we can reach no other conclusion except that Dr. Estampador-Ulep saw Janine for the sole purpose of examining and detecting child abuse. We do not

doubt that, under a different set of circumstances, Dr. EstampadorUlep could have provided Janine with additional treatment if Nevertheless, Dr. Estampador-Ulep was, in essence, a At no time did she render treatment

necessary.

part of the prosecution team.

to Janine, and the doctor's subjective observation that she might have rendered treatment had treatment been necessary should not control the determination of her role for purposes of the admission of hearsay evidence. Put in general terms, the mere ability to

render treatment does not automatically give rise to the inference that one is categorically a "treating physician" as Rule 5-

803(b)(4) contemplates the term.

Something more is needed than the If that

mere possibility that further treatment could be rendered.

were not the case, then any DHHS doctor who examines a child would qualify as a treating physician within 5-803(b)(4). Or, taken to

its utmost extreme, any doctor who examines an individual could

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arguably "treat" that individual if necessity called for it. Would, then, every doctor who examines a person qualify as a "treating physician?" utterly meaningless. Furthermore, there is no question that the appellant was prejudiced by Dr. Estampador-Ulep's testimony in the case at bar. Granted, Janine did testify at trial, but only as a very reluctant witness whose testimony was at best vague and disjointed and at worst incoherent. Therefore, it cannot be said by any stretch of Certainly not, or the rule would be rendered

the imagination that the doctor's testimony was merely a recitation or reinforcement of what Janine herself had already testified. Because we are not willing to extend Rule 5-803(b)(4) beyond what we believe to be the intent of that rule, we shall reverse the judgment of the trial court. JUDGMENTS REVERSED; COSTS TO BE PAID BY MONTGOMERY COUNTY.6

Due to our resolution of the first issue presented in this appeal, we need not discuss the merits of the remaining four issues. For guidance to the trial court, and to prevent any possibility that the issues will resurface before this Court in the future, we acknowledge that having considered those issues we find no error in the actions of the trial court. 15

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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 395 September Term, 1997

BOYD CALEB LOW v. STATE OF MARYLAND

Thieme, Byrnes, Alpert, Paul E. (Ret'd, Specially Assigned), JJ.

Opinion by Thieme, J. Dissenting Opinion by Alpert, J.

Filed: January 29, 1998

-1-

I respectfully dissent from the majority's holding that the trial judge erred in allowing Dr. Estampador-Ulep to testify as a treating physician. In discussing this issue, my focus is upon Rule 5-803(b)(4), which provides: Statements for Purposes of Medical Diagnosis or Treatment - Statements made for purposes of medical treatment or medical diagnosis in contemplation of treatment and describing medical history, or past or present symptoms, pain, or sensation, or the inception or general character of the cause or external sources thereof insofar as reasonably pertinent to treatment or diagnosis in contemplation of treatment. At trial, appellant challenged the status of Dr. EstampadorUlep, claiming that she was merely an examining physician, who could not relate Janine's statements as substantive evidence. Rule

5-803(b)(4), Cassidy v. State, 74 Md. App. 1, cert. denied, 312 Md. 602 (1988).7 After hearing evidence and argument on this issue,

the trial court determined that the doctor was both a treating and an examining physician. Appellant challenges that ruling as error.

For several reasons, I agree with the trial court's conclusion.

Not at issue in this case is the statute regarding out-ofcourt statements made by child abuse victims under the age of twelve years. Md. Code Ann., Article 27,

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