16-3542-pr Pham v. Kirkpatrick

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT



### SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILE D WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN EL ECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Seco nd Circuit, held at 1 the Thurgood Marshall United States Courthou se, 40 Foley Square, in the City of New York, 2 on the 16 th day of February, two thousand eighteen. 3 4 P RESENT : R OBERT D. S ACK , 5 B ARRINGTON D. P ARKER , 6 S USAN L. C ARNEY , 7 Circuit Judges

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-------------------- ------------------ ------------------ --------------- 10 MARC P HAM , 11 Petitioner-Appellant
, 12 13 v. No. 16-3542-pr 14 15 M. K IRKPATRICK , Superintendent, Clinton Correctional 16 Facility, 17 Respondent-Appellee

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-------------------- ------------------ ------------------ --------------- 19 FOR APPELLANT: M ALVINA N ATHANSON , New York, NY. 20 21 FOR APPELLEE: D ENNIS A. R AMBAUD , Assistant Attorney 22 General (Nikki Kowals ki, Deputy Solicitor 23 General, Barbara D. Underwood, Solicitor 24 General, on the brief ) for Eric T. Schneiderman, 25 Attorney General of the State of New York, New 26 York, NY. 27 Appeal from a judgment of the United States District Court for th e Northern District 28 of New York (David N. Hurd, J. ). 292 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 1 ADJUDGED, AND DECREED that the judgment entered on September 21, 2016, is 2
AFFIRMED

. 3 On September 20, 2012, a jury in Albany , New York, convicted petitioner-appellant 4 Marc Pham of “rape in the first degree, crimin al sexual act in the first degree, criminal 5 contempt in the first degree, criminal contem pt in the second degree and tampering with a 6 witness in the fourth degree.” People v. Pham (“ Pham I ”), 118 A.D.3d 1159, 1159-60 (N.Y. 7 App. Div. 3d Dep’t 2014). Before trial, the rape victim died of a heart attack unrelated to the 8 crime. The only substantial description of the rape introduced by the state at trial came from 9 the notes of the emergency room doctor who treated the victim on the night of the assault. 10 The doctor read the notes as a part of her test imony at trial. After unsuccessfully pursuing a 11 direct appeal in the state courts, Pham filed a habeas petition in the United States District 12
Court for the Northern District of New York arguing, inter alia, that the trial court’s 13 admission into evidence through the doctor’s testimony of the victim’s contemporaneous 14 statements to the emergency room doctor violated his Confrontation Clause rights. See Pham 15 v. Kirkpatrick (“ Pham II ”), 209 F. Supp. 3d 497, 501 (N.D.N.Y. 2016). The District Court 16 denied the petition, holding that the state court’s conclusion that the statements were 17
nontestimonial and therefore admissible w as not contrary to, nor an unreasonable 18 application of, clearly established federal law. See id. at 505-06. We granted Pham’s motion 19 for a certificate of appealability on this issue. We assume the parties’ familiarity with the facts 20 and the record of the prior pr oceedings, to which we refer he re only as necessary to explain 21
our decision to affirm. 22 A federal court must deny a prisoner’s pe tition for a writ of habeas corpus with 23 respect to a state court conviction unless the fe deral court concludes that the state court’s 24 decision “was contrary to, or involved an unreasonable applic ation of, clearly established 25 Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. 26 § 2254(d)(1). In considering such a petition, the federal court is obligated to defer to the state 27 court’s ruling unless “there is no possibility fairminded jurists could disagree that the state 28
court’s decision” conflicted with governing Supreme Court law. Nevada v. Jackson , 569 U.S. 293 505, 508-09 (2013) (per curiam) (quoting Harrington v. Richter , 562 U.S. 86, 102 (2011)). If 1 Supreme Court cases give “no clear answer to the question presented,” the state court’s 2 decision generally cannot be held to be unreasonable. Wright v. Van Patten , 552 U.S. 120, 126 3 (2008) (per curiam). Pham’s case fails to meet this exacting standard. 4
The Sixth Amendment ensures a criminal defe ndant the right “to be confronted with 5 the witnesses against him.” U.S. Const. amend. VI. Out-of-court statements sought to be 6 introduced into evidence at trial are subject to Confrontation Clause requirements if they are 7
“testimonial.” Michigan v. Bryant , 562 U.S. 344, 356-58 (2011). St atements are “testimonial” if 8 the “primary purpose of the interrogation” that elicited the statements was to create “an out9 of-court substitute for trial testimony.” Id . The primary purpose of an interrogation that is 10 subject to such scrutiny is determined through an “objective analysis of the circumstances of 11
an encounter and the statements an d actions of the parties to it.” Id . at 360. 12 Although it has since suggested that a br oader rule is at least “conceivabl[e],” Ohio v. 13
Clark , 135 S. Ct. 2173, 2181 (2 015), when it decided Bryant the Supreme Court had applied 14 the Confrontation Clause analysis to interpers onal statements only if those statements were 15 made by the declarant to law enforcement personne l. As it had in earlier decisions, the Court 16
in Bryant explicitly reserved the question “whether and when statements made to someone 17 other than law enforcement personnel are testimonial.” Bryant , 562 U.S. at 357 n.3 (internal 18 quotation marks and citations om itted). Indeed, when the state appellate court issued its 19 opinion in Pham’s case in 2014, the Supreme Court had noted in dicta that “statements to 20 physicians in the course of receiving treatment would be excluded, if at all, only by hearsay 21 rules,” rather than because of Confrontation Clause concerns. Giles v. California , 554 U.S. 22 353, 376 (2008). 23 Here, the state court’s conclusion that the do ctor interacted with the victim for the 24 “primary purpose” of providing medical tr eatment was neither contrary to nor an 25 unreasonable application of clearly es tablished federal law, as to which Bryant was the 26
definitive statement. In Bryant , the Supreme Court directed that, for Confrontation Clause 27 purposes, the “primary purpose” of an in terrogation must be determined through an 28 objective analysis of all the circumstances bearing on the interaction, including the 294 statements and actions of the indivi duals involved in the interaction. Bryant , 562 U.S. at 360. 1 Here, the totality of the circumstances strongly suggests that the primary purpose of the 2
interaction between the doctor and the victim was to obtain (for the victim) and to provide 3 (for the doctor) medical treatment. The rele vant conversation took place in a hospital 4 emergency room on the night of the alleged ra pe. No law enforcement officers were present 5 during the interaction at the hospital, nor had any officers attempted to take a formal 6 statement from the victim earlier in the evening. See App. 151 (officer sent victim to the 7 hospital before taking a formal statement, reas oning that it was more important for her to 8 get immediate medical treatment). The doctor te stified that it was necessary for her to learn 9
the details of the assault so that she could conduct an appropriate physical examination, 10 evaluate the victim’s injuries, and formulate a safe discharge plan. And the victim did in fact 11 require medical attention, including emergen cy contraception and preventative treatment for 12 sexually transmitted diseases such as HIV. See State v. Slater , 285 Conn. 162, 185 (2008) 13 (finding rape victim’s statements to doctors not testimonial because “[a] rape victim is 14 necessarily in need of medical attention” and anobjective analysis suggests her goal in the 15 emergency room is, likely, to receive treatment). 16 Pham argues that because the victim signed a consent form allowing the hospital to 17 provide evidence to law enforcement personnel, the statements made by the victim were, as 18 an objective matter, rendered testimonial. But th at such a consent form was signed does not 19 in itself determine the correct objectiv e characterization of the interview. See Dorsey v. Cook
, 20 677 F. App’x 265, 267 (6th Cir. 2017) (per curi am). Nor does the fact that the doctor was 21 trained as a sexual assault forensic examiner alter this analysis. See 10 NYCRR 722.1(a)(2) 22 (Sexual Assault Forensic Examiner (SAFE) Pr ograms, Definition) (describing the program as 23 designed to provide both medical care and fore nsic examinations to sexual assault victims). 24
The state court’s decision that the victim’s statements were not testimonial reflected a 25 reasonable application of the Supreme Court’s decisions in Bryant and its predecessors. See 26
State v. Miller , 264 P.3d 461, 479-81 (K an. 2011) (collecting cases in which patient’s 27 statements to doctor found to be nontestimonial); Jackson , 569 U.S. at 508 (court must deny 285 habeas relief unless “there is no possibility fairminded jurists could disagree”) (quoting 1 Harrington , 562 U.S. at 102). 2
We conclude that the state court’s decision finding that the victim’s statements to 3 medical personnel were not te stimonial was not contrary to, nor did it involve an 4 unreasonable application of, established Supreme Court law. See 28 U.S.C. § 2254(d)(1); Duhs 5 v. Capra , 639 F. App’x 691, 694 (2d Cir. 2016) (su mmary order) (state court decision finding 6
nontestimonial child abuse victim’s statements to doctor not contrary to established 7 Supreme Court law). 8
We have considered all of Pham’s remain ing arguments and conclude that they are 9 without merit. Accordingly, the ju dgment of the district court is AFFIRMED

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FOR THE COURT: 11 CATHERINE O’HAGAN WOLFE, Clerk of Court 12 13