State in the Interest of C.D.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

07-1001

STATE IN THE INTEREST OF C.D.

************

APPEAL FROM THE

SEVENTH JUDICIAL DISTRICT COURT

PARISH OF CONCORDIA, NO. 06-085J

HONORABLE LEO BOOTHE, DISTRICT JUDGE

************

JAMES T. GENOVESE

JUDGE

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Court composed Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters, and

James T. Genovese, Judges.

ADJUDICATION VACATED AND

MATTER REMANDED.

Samuel H. Thomas

Post Office Box 814

209 North Walnut Street

Tallulah, Louisiana 71282

(318) 574-1953

COUNSEL FOR DEFENDANT/APPELLANT:

C.D.

John F. Johnson

District Attorney - Seventh Judicial District

ADA Bradley R. Burget

4001 Carter Street, Suite 9

Vidalia, Louisiana 71373

(318) 336-5526

COUNSEL FOR APPELLEE:

State of Louisiana

GENOVESE, JUDGE.

In this juvenile delinquency case, the juvenile Defendant, C.D.,1 was

adjudicated a delinquent child pursuant to an adjudication hearing on the offense of

oral sexual battery. At the dispositional hearing, the trial court committed C.D. to the

custody of the Louisiana Department of Public Safety and Corrections, Office of

Youth Development (OYD), for a period of four years. C.D. appeals his delinquency

adjudication. For the following reasons, we reverse and vacate the delinquency

adjudication and disposition.

FACTS AND PROCEDURAL HISTORY

In October of 2006, the juvenile (C.D.), then sixteen years of age, was living

with his grandmother, L.D., in Ferriday, Louisiana. On October 18, 2006, two other

grandchildren, T.D., twelve years of age, and Z.D., four years of age, were visiting

their grandmother at her home while their parents were attending a high school

football game.

On October 21, 2006, Z.D. informed her eight-year-old brother, D.D., that C.D.

had placed his penis in her mouth on the previous Friday, October 18, 2006, while she

was at her grandmother’s house. Z.D. then informed her mother, M.D., who

contacted other family members and the police. A juvenile delinquency petition was

filed, alleging that C.D. had committed oral sexual battery upon Z.D. An adjudication

hearing was conducted by the trial court, and C.D. was adjudicated a delinquent and

committed to OYD for four years. C.D. appeals his delinquency adjudication,

alleging two assignments of error.

1

All initials used throughout this opinion are used in accordance with La.R.S.

46:1844(W).

1

ASSIGNMENTS OF ERROR

In his brief to this court, C.D. presents the following two assignments of

error:

1. The trial court erred when the court allowed the state to call [a]

witness after the defendant requested [that] all witnesses be

sequestered.

2. The trial court erred when the court allowed the state to introduce

doctors [sic] and medical records denying defendant the right to

cross examination.

ERRORS PATENT

Although the Louisiana Children’s Code is silent as to whether a juvenile

criminal proceeding warrants an error patent review, this court has found that such

a review is mandated by La.Ch.Code art. 104 and La.Code Crim.P. art. 920. See State

in the Interest of J.C.G., 97-1044 (La.App. 3 Cir. 2/4/98), 706 So.2d 1081. After

conducting an error patent review, we find that there is one error patent relative to

post conviction relief; however, based on our decision herein, we need not address

said error patent.

ASSIGNMENT OF ERROR NO. 2:

Because of its effect on Defendant’s first assignment of error, we will first

address Defendant’s second assignment of error. In his second assignment of error,

Defendant argues that the trial court erred by allowing the State to introduce

uncertified medical records of the treatment a doctor provided to a two-year-old

minor, K.E. K.E. is an alleged victim of a separate crime in a separate case allegedly

perpetrated by this Defendant. Though subpoenaed, the doctor in question, Dr.

Danita Weary, was not present at the adjudication hearing, and, consequently,

Defendant was unable to cross-examine her. Defendant concedes that Dr. Weary was

“unavailable as a witness”; however, we note that Dr. Weary’s office is located in

2

Natchez, Mississippi and that she refused to honor her subpoena and testify. There

is nothing in the record establishing the fact that Dr. Weary was a domiciliary of the

state of Louisiana and thereby subject to the subpoena power of the state of

Louisiana. The medical records in question contain statements by K.E. to the doctor,

which the State contends are admissible.

At trial, the following colloquy occurred:

MR. THOMAS:

Your Honor, note my objection. I don’t see where these records are

certified and I don’t have the right to cross-examine them.

MR. BURGET:

Your Honor, actually these records are certified per a letter from -- let

me back up. These are medical records wherein Ms. [D.] took the child,

[K.E.], to the doctor; she just testified to that [sic] Dr. Weary’s office.

I have a letter of certification from the business manager who is the

regular custodian of those records at the Natchez Pediatric Clinic over

in Natchez, Mississippi. A person by the name of Monty Mayo and also

a one page, these records are just one page long. I’ll show you those.

MR. THOMAS:

Your Honor, a letter is not certification. Certification means that it’s

been certified by a notary that those are records from the hospital and

that’s not what we have. We just have a letter. I believe the Code

clearly states that if you’re going to introduce evidence where I don’t

have a right to cross-examine and they are records that it should be

certified. A mere statement from somebody that it’s a record is not a

certification.

THE COURT:

Well, we have a statement from the business manager of the Natchez

Pediatric Clinic that this, that they’re certifying the medical records of

[K.E.], . . . . They’re a copy of the records from the Natchez Pediatric

Clinic, Dr. Danita Weary. I’m going to accept them as being certified

based on this letter.

MR. BURGET:

Your Honor, for the record, what the exception that you’re trying to get

over in the introduction of medical records is the hearsay exception.

3

THE COURT:

Right.

MR. BURGET:

Of course, these are business records. They don’t have to be certified by

a notary, but certified as the Court has properly turned out, by a person,

the regular keeper of those records and that’s in 803(7), excuse me, yeah

803(7). Also in the matter, I subpoenaed Dr. Weary. She is unable to

be with us today, therefore, she is unavailable and these records come

in through an exception to the hearsay statute as well under 804. Further

than that, the Legislature is kind of redundant in 803 when they define

hearsay, they talk about consistent with the declarant’s testimony and is

one of the initial complaint of sexual assaultive behavior. Therefore,

they’re not even hearsay per the definition of what hearsay is under 801.

I just want to make that clarified for the record.

THE COURT:

Let it be noted for the record. My ruling’s been issued.

MR. THOMAS:

Note my objection, your Honor.

THE COURT:

Note Mr. Thomas’ objection.

The controlling statute is La.R.S. 13:3714(A),2 which states:

Whenever a certified copy of the chart or record of any hospital,

signed by the administrator or the medical records librarian of the

hospital in question, or a copy of a bill for services rendered, medical

narrative, chart, or record of any other state health care provider, as

defined by R.S. 40:1299.39(A)(1) and any other health care provider as

defined in R.S. 40:1299.41(A)(1), certified or attested to by the state

health care provider or the private health care provider, is offered in

evidence in any court of competent jurisdiction, it shall be received in

evidence by such court as prima facie proof of its contents, provided that

the party against whom the bills, medical narrative, chart, or record is

sought to be used may summon and examine those making the original

of the bills, medical narrative, chart, or record as witnesses under

cross-examination.

2

We find this statute applies to juvenile proceedings, pursuant to La.Ch.Code arts. 104

and 105.

4

The supreme court has explained as follows:

The purpose of the statute is to save a litigant the difficulty and

expense of producing as a witness each person who assisted in the

treatment of the patient. Judd v. State, Dept. of Transportation and

Development, 95-1052, p. 3 (La.11/27/95), 663 So.2d 690, 693. It

provides that the opposing party may defend against the record by

calling those who made the record as witnesses under

cross-examination. Id.

State v. Juniors, 03-2425, p. 42 (La. 6/29/05), 915 So.2d 291, 324, cert. denied, 547

U.S. 1115, 126 S.Ct. 1940 (2006).

It is, at the very least, questionable whether the certification by the business

manager of the clinic complies with La.R.S. 13:3714. The statute clearly

differentiates between hospital records and those of other health care providers.

Since this provision acts as an exception to normal hearsay rules, the jurisprudence

states that it should be read strictly. State v. Trahan, 332 So.2d 218 (La.1976).

In State v. Miller, 06-595 (La.App. 3 Cir. 9/27/06), 940 So.2d 864, writ denied,

06-2577 (La. 5/11/07), 955 So.2d 1278, this court analyzed a defendant’s argument

that the lower court erred by accepting into evidence medical records from the LSU

hospital in Shreveport. The defendant alleged that the records were not properly

certified by a librarian as required by La.R.S. 13:3715, a sister-statute to La.R.S.

13:3714. Discussing Trahan, and a subsequent decision of the supreme court, State

v. Spooner, 368 So.2d 1086 (La.1979), this court, in Miller, explained:

The Spooner court’s conclusion that a “superintendent” and an

“administrator” accord with the common understanding of those terms.

Our survey of current statutes has not revealed a clear statutory

correlation between the terms “librarian” and “health information

manager.” However, at trial Dr. Conrad, the attending physician,

testified that at LSU Health Sciences Center the librarian for medical

records holds the title “Director of Health Information Management.”

Defendant indicated he would cross-examine the doctor on this point,

but did not do so.

As the Spooner court correlated the terms “administrator” and

“superintendent” based upon a review of the statutes, we find, based

5

upon Dr. Conrad's testimony, that a “health information manager” or

“director of health information management” is a librarian, for purposes

of La.R.S. 13:3715. The strict reading advocated by Defendant would

place any number of legitimate, authentic medical records beyond the

parameters of the statute. Under his interpretation, whenever a medical

facility used a term other than “librarian” for its custodian of records,

neither La.R.S. 13:3714 nor 13:3715 would apply. Spooner shows this

would not be a proper result. Trahan has never been overruled, and its

call for procedural caution in applying La.R.S. 13:3714 is sound.

However, Spooner tempers Trahan, by demonstrating that the

application of the statute is not limited to the exact job titles that appear

in its language. Further, the same reasoning would apply to both

La.R.S. 13:3714 and 13:3715.

Id. at 872-73.

Miller and Spooner merely recognized a reality of modern business practice in

that a person who functions as a superintendent or librarian may have a job title other

than “superintendent” or “librarian.” In the present case, it is likewise questionable

whether the record-keeper for a clinic can validly certify records. The statute, La.R.S.

13:3714, differentiates between medical records kept by hospitals and those kept by

other health care providers. Nonetheless, we note that in Trueman v. City of

Alexandria, 01-1130 (La.App. 3 Cir. 5/15/02), 818 So.2d 1021, writ granted, 02-2166

(La. 11/15/02), 829 So.2d 410, in discussing the medical records rule, this court

appeared to treat a clinic’s records as hospital records for purposes of the statute.

Another civil case, Brasseaux v. Stand-By Corp., 402 So.2d 140 (La.App. 1 Cir.), writ

denied, 409 So.2d 617 (La.1981), also treated clinic records as hospital records under

La.R.S. 13:3714, without specifically discussing the issue.

Even assuming arguendo that these medical records in question were duly

certified, the statute requires that the opposing party have an opportunity to call and

cross-examine the person who made the record. In the colloquy cited above,

Defendant complained that he had not had the opportunity to cross-examine anyone

regarding the records. Although the State had subpoenaed Dr. Weary, she did not

6

appear. Moreover, it is questionable as to whether the State could even enforce its

subpoena of Dr. Weary due to the doctor’s apparent domiciliary status in the state of

Mississippi. We observe that La.R.S. 13:3714 gave Defendant an opportunity to

subpoena Dr. Weary himself, but that is meaningless if the state of Louisiana does not

have the jurisdiction to enforce such a subpoena on an apparent out-of-state witness.

We also note the following supreme court’s detailed discussion on the same

issue in an analogous case:

This court is called upon to determine the propriety of the

judgment of the trial court appellate division holding LSA-R.S.

15:499-501 unconstitutional. At issue is whether the statutes in

question, which allow a certificate of analysis to be accepted by the trial

court as prima facie proof of the substance tested without live testimony

of the person performing the analysis, deprive the defendant of the right

to confront and cross-examine the witness and impermissibly shift the

burden of proof to the defendant.

The State contends that the statutes in question neither violate the

Confrontation Clause of the state or federal constitutions nor

impermissibly shift the burden of proof to the defendant. The State

argues the challenged statutes provide very specific procedures to be

followed in order to introduce reports or “certificates of analysis” from

criminalistics laboratories. As such, the statutes protect the defendant’s

right to confront the authors of certificates of analysis and do not shift

the burden of proof to the defendant.

The defendant argues the statutes violate both the United States

Constitution and the Louisiana Constitution. A criminal defendant is

guaranteed the right to confront and cross-examine witnesses against

him. Defendant argues the case of Crawford v. Washington, 541 U.S.

36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), bars the use at trial of

testimonial out-of-court statements unless the witness is unavailable and

defendant had an opportunity to cross-examine that witness. Defendant

contends certificates of scientific analysis are testimonial scientific

testimony which are not immune to the Crawford analysis.

....

In enacting the above statutes, the legislature sought to establish

a procedure to relieve the party desiring to introduce a certificate of the

burden of having to produce the person who performed tests on the

evidence. State v. Davis, 438 So.2d 1288, 1290 (La.App. 3 Cir. 1983),

writ denied, 445 So.2d 455 (1984). This procedure allows a party to

submit a document in place of a witness’s direct examination and

7

requires a court to accept such a document as prima facie proof of the

facts shown and of proper custody of the physical evidence, provided

the certificate is in accordance with LSA-R.S. 15:499 and subject to the

conditions contained in LSA-R.S. 15:500-501. See LSA-R.S. 15:500.

If, at least five days prior to commencement of the trial, the party against

whom such certificate is offered requests a subpoena be issued to the

person who performed the examination or the person subpoenaed

responds to the subpoena, the certificate shall not be prima facie proof

of its contents or of proper custody. LSA-R.S 14:501(B)(1). Prima

facie evidence is defined in BLACK’S LAW DICTIONARY, 579 (7th

ed.1999), as “[e]vidence that will establish a fact or sustain a judgment

unless contradictory evidence is produced.” Prima facie evidence is not

conclusive proof. Thus, even if admitted, the defendant can attack the

certificate of analysis. See LSA-C.E. art. 806.

....

In State v. Powdrill, 95-2307, pp. 11-12 (La.11/25/96), 684 So.2d

350, 358, this court had the opportunity to address a defendant’s right

of confrontation as affected by a portion of the state securities law,

LSA-R.S. 51:721(B), a statute similar in effect to the procedure set forth

in LSA-R.S. 15:499-501. The trial court reasoned the introduction into

evidence of a certificate of non-compliance would deny defendants their

right to confront the commissioner about the finding. Consequently, the

trial court found the statute unconstitutional.

This court reversed, noting the subsection in question can be

utilized by either party. Further, the statute does not preclude the

defense from calling the commissioner as a witness and cross-examining

him because defendant is entitled to subpoena the commissioner to

question him about the preparation of the certificate and the information

on which it is based. . . .

....

In State v. Matthews, 632 So.2d 294, (La.App. 1 Cir. 1993),

defendant asserted that LSA-R.S. 15:499-501 were unconstitutional

because the statutes shift the burden of proof from the State to the

defendant. The court noted defendant had not requested a subpoena issue

to the person performing the tests to appear at trial. The statute provides

that if the subpoena is requested at least five days prior to

commencement of the trial or the person subpoenaed responds, the

certificate shall not be prima facie proof of its contents or of proper

custody. The court did not find “the requirement that defendant request

the preparer of the certificate to testify is tantamount to requiring the

defendant to put on the proof [. The] requirement is not an onerous

burden that deprives defendant of any constitutional rights.” State v.

Matthews, 632 So.2d at 301.

8

In State v. Landry, 583 So.2d 911 (La.App. 1 Cir. 1991), the

defendant had timely requested issuance of the subpoena. During the

trial, the State offered the report of the criminalistics laboratory into

evidence over defendant’s objection. The State argued that although he

had timely requested the subpoena, defendant waived his rights by not

objecting until the State sought to introduce the report rather than prior

to commencement of the trial. Defendant argued his constitutional rights

of confrontation and cross-examination were denied. The appellate court

agreed, relying on the language of LSA-R.S. 15:501(B) and the holding

in City of Shreveport v. Burroughs, 511 So.2d 782, (La.App. 2 Cir.

1987), and reversed defendant’s conviction and sentence for distribution

of ecstasy. The court quoted from City of Shreveport v. Burroughs:

When the defendant subpoenas the person who made the

certificate more than five days prior to trial, the state is

made aware that the certificate will not be admissible into

evidence in lieu of the testimony of the person who made

the certificate, and it is incumbent upon the state to procure

the attendance of the person who made the certificate at trial

and to offer his or her testimony to establish the results of

the examination as proof of an element of the offense

charged. It is the state’s burden, not the defendant’s, to go

forward with proof of the elements of the crime and there is

no reason why the defendant should ask for continuance

when the subpoenaed witness fails to appear at trial.

City of Shreveport v. Burroughs, 511 So.2d at 783.

The court in State v. Mims, [524 So.2d 526 (La.App. 2 Cir.), writ

denied, 531 So.2d 267 (La.1988)], addressed defendant’s objection to the

admission of the crime laboratory’s certificate claiming improper notice,

improper form, and failure to comply with LSA-R.S. 15:499. The court

found notice had been properly given of the State’s intent to introduce

the certificate prior to the first trial which ended in a mistrial. The court

concluded there was no requirement that the State send a renewal of the

notice. In doing so, the court found the “purpose of the statute is to

inform defendant that such a certificate exists and that it will be used

against him. It prevents confusion or surprise, and it aids defendant in

preparing an adequate defense.” State v. Mims, 524 So.2d at 536.

In this case defendant relies on the recent ruling by the United

States Supreme Court in Crawford, supra. . . .

In Crawford, the Supreme Court held out-of-court statements by

witnesses that are testimonial are barred under the Confrontation Clause

unless the witnesses are unavailable and the defendant had prior

opportunity to cross-examine the witnesses, regardless of whether such

statements are deemed reliable by the court. In Crawford, the lower

court allowed the use of a spouse’s recorded statement to be used in lieu

of live testimony because the defendant invoked the marital privilege.

9

The Supreme Court granted certiorari to determine whether the State’s

use of the spouse’s statement violated the Confrontation Clause.

....

Upon careful review of the Crawford opinion, we find that

Crawford is not controlling, believing the statutes at issue provide a party

with notice that a certificate of analysis will be offered into evidence

absent an objection. These statutes are a formalized means of

effectuating a stipulation to the admissibility of matters which often are

not in dispute. See State v. Hancock, 317 Or. 5, 854 P.2d 926, 929

(7/1/93), where the court indicated a defendant is advised the State will

allow the defendant to select the manner in which the State must prove

the nature of the controlled substance. After the State has put the

defendant on notice, the statute provides the defendant with a small

procedural step which must be taken to exercise the right to

confrontation. In essence, it is the defendant’s decision which dictates

whether the State must produce the individual who prepared the report

or whether the defendant will agree to use of the criminalist’s report. The

court analogized this evidence to other kinds of hearsay evidence which

are admissible and raise no constitutional problems if the defendant does

not object or if the defendant stipulates to admissibility. The report does

not come into evidence if a subpoena is issued for the appearance of the

criminalist. This construction protects the defendant’s rights of

confrontation and avoids confrontation problems. Id.

Although there is no statistical data available before this court as

to the number of cases that would be involved in Louisiana, we note the

Oregon Supreme Court in considering a similar statute reported “the

Oregon Crime Laboratory received approximately 8,800 subpoenas, but

criminalists actually testified in only 10 percent of the cases.” State v.

Hancock, 854 P.2d at 929. In Hancock, the defendant claimed the statute

violated the state and federal Confrontation Clauses. The Oregon

Supreme Court thoroughly examined the statute and found it provided a

“‘reasonable procedure’ that must be followed in order for a defendant

to exercise a constitutional right--in this case, the confrontation right.”

State v. Hancock, 854 P.2d at 928. All a defendant had to do to compel

the State to prove its case through live testimony was to put the State on

notice by subpoenaing the criminalist. The court found the procedure of

having the defendant subpoena the criminalist was neither unreasonable

nor unfair. State v. Hancock, 854 P.2d at 930. Thus, the court affirmed

the lower court rulings that the statute did not violate a defendant’s

constitutional right of confrontation by providing a means for the

defendant to subpoena the criminalist.

It has long been recognized that a defendant may voluntarily waive

the right to confront when the situation proves advantageous. Diaz v.

United States, 223 U.S. 442, 450, 32 S.Ct. 250, 252, 56 L.Ed. 500 (1912).

10

In another case concerning a so-called “notice and demand”

statute, similar to LSA-R.S. 15:499-501, that provides a procedure

whereby a laboratory certificate may be admitted into evidence without

the presence of the laboratory employee, the New Jersey Supreme Court

determined that it did not violate a defendant’s right to confrontation to

require the defendant to request the presence of the person who prepared

the laboratory report within a given time frame. State v. Miller, 170 N.J.

417, 790 A.2d 144 (1/23/02). In Miller, the State notified defense

counsel of its intent to proffer the laboratory certificate at trial pursuant

to New Jersey’s statute. The defendant timely objected; however, the

State never received notice of the objection. Under the New Jersey

statute, once an objection is filed, admissibility of the certificate shall be

determined no later than two days before trial. Failure to comply with

the time limitations regarding notice of objection shall constitute a

waiver to admission of the certificate. In Miller, there was no hearing

prior to trial. The trial court admitted the certificate over defendant’s

objection. The appellate court affirmed. The New Jersey Supreme Court

granted certification limited to the issue of the trial court’s admission of

the laboratory certificate into evidence. The court, citing Maryland v.

Craig, 497 U.S. 836, 845, 110 S.Ct. 3157, 3163, 111 L.Ed.2d 666, 678

(1990), noted “‘[t]he central concern of the Confrontation Clause is to

ensure reliability of the evidence against a criminal defendant by

subjecting it to rigorous testing’ in an adversarial proceeding.” State v.

Miller, 170 N.J. at 425, 790 A.2d 144.

Following a thorough analysis, the New Jersey Supreme Court

found the statute “require[d] only that a defendant object to the lab

certificate and assert that the composition, quality, or quantity of the

tested substance will be contested at trial.” State v. Miller, 170 N.J. at

436, 790 A.2d 144. The matter was remanded to the trial court for a

hearing at which the State would bear the burden of proving the

reliability of the scientific methodology underlying the report. State v.

Miller, 170 N.J. at 438, 790 A.2d 144.

We acknowledge that other courts have evaluated similar statutes

with varying degrees of skepticism depending on the manner in which

the statutes were written. See City of Las Vegas v. Walsh, 120 Nev. 392,

91 P.3d 591 (6/11/04); People v. McClanahan, 191 Ill.2d 127, 246

Ill.Dec. 97, 729 N.E.2d 470 (4/20/2000); Miller v. State, 266 Ga. 850,

472 S.E.2d 74 (7/1/96); Barnette v. State, 481 So.2d 788 (Miss.1985);

State v. Christianson, 404 A.2d 999 (Me.1979).

....

From a practical standpoint, these statutes are no different from a

situation in which the State offers hearsay evidence at trial. If defendant

does not contemporaneously object, the hearsay is allowed into evidence.

In State v. Hancock, 854 P.2d 928, the Oregon Supreme Court found the

statute provided a “reasonable procedure” which must be followed for

the defendant to exercise a constitutional right to confrontation. That

11

finding was premised on the principle that it is permissible to establish

reasonable procedures to be followed in order to exercise a right

guaranteed by the constitution. Poulos v. New Hampshire, 345 U.S. 395,

405, 73 S.Ct. 760, 766, 97 L.Ed. 1105 (1953).

State v. Cunningham, 04-2200, pp. 4-18 (La. 6/13/05), 903 So.2d 1110, 1113-21

(footnotes omitted).

The reasoning of Cunningham suggests that pursuant to La.R.S. 13:3714,

Defendant was responsible for summoning Dr. Weary for examination. The State

subpoenaed Dr. Weary, who did not appear. However, Cunningham’s reasoning

indicates that it was Defendant’s responsibility to subpoena the doctor, regardless of

the State’s actions. On the other hand, Cunningham also indicates that Defendant

should have had notice that the medical records were going to be introduced so that

he would know that he needed to subpoena Dr. Weary for examination. There is no

indication in the record that Defendant had notice that these medical records were

going to be introduced. Therefore, Defendant had no responsibility to subpoena Dr.

Weary. Moreover, neither the State nor the Defendant could enforce an apparent out-

of-state subpoena. Under the facts of this case, Defendant’s statutory and

constitutional rights to confrontation were violated. Thus, the court erred by allowing

the medical records to be admitted into evidence.

The State also argued at trial that the “business records exception” to the

hearsay rules and the “initial complaint” (of sexual assault) exception applied. The

State repeats these arguments in its brief on appeal. The trial court did not rule on the

State’s arguments, and we find that the record does not establish that either exception

would apply. The “business records exception” requires live testimony from the

records custodian or other qualified witness to lay a foundation for admissibility.

La.Code Evid. art. 803(6). There was no such testimony in this case; likewise, there

was no opportunity for cross examination. As for the “initial complaint” exception,

12

the record does not establish that the information in the medical records was derived

from the initial complaint, nor does it establish that the declarant was unavailable.

Therefore, La.Code Evid. art. 804(A) and 804(B)(5) are inapplicable.

On appeal, the State also argues that La.Code Evid. art. 803(4) codifies a

“medical records” exception to the hearsay rule. However, the Louisiana Supreme

Court has indicated that La.Code Evid. art. 803(4) applies to statements made for the

purpose of medical treatment, while admissibility of medical records is governed by

La.R.S. 13:3714. See Juniors, 915 So.2d 291.3

We find that the trial court erred in admitting the medical records of Dr.

Weary’s treatment of K.E. This was not harmless error. An error is harmless if the

verdict actually rendered in this case “was surely unattributable to the error.” Sullivan

v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081 (1993); State v. Johnson,

94-1379, p. 14 (La. 11/27/95), 664 So.2d 94, 100.

We find that the adjudication in this juvenile case by the trial court was not

“surely unattributable to the error,” as K.E.’s medical records provided the only

physical evidence in a case contingent upon credibility, and the trial court specifically

relied on those medical records in its oral reasons for judgment. In rendering its

adjudication, the trial court stated:

THE COURT:

All right. The matter’s submitted. As typical in a matter involving

witnesses of tender age, things are not totally clear. The Court finds that

the -- there’s one piece of physical evidence involving the two-year-old.

There was some physical evidence that she had suffered injuries to the

interior of her vagina [and] that she [w]as in discomfort for a few days.

The Court did not detect any animosity or any reason for these

children to make up this story on [C.D.]. The Court finds that the State

3

We note that if La.Code Evid. art. 803(4) functioned as a “medical records exception,”

then La.R.S. 13:3714 would have no reason to exist. The State mentions statements allegedly

made by K.E. to the doctor. The exhibit in the record does not contain any such statements.

Further, Defendant’s brief does not place such statements at issue.

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has carried its burden of proof beyond a reasonable doubt. The Court

adjudicates [C.D.] to be guilty in this matter.

Defendant testified and denied committing the offense. His grandmother also testified,

stating that she was in the house on the night the offense allegedly took place. She

further stated that she saw nothing unusual and that the victim did not report anything

to her. However, she acknowledged that from her location in her home that night, she

could not see into Defendant’s room. There were no eye-witnesses to the incident.

We find the error of the trial court in allowing the medical records into evidence

was not harmless error. There was no physical evidence regarding the crime charged;

thus, the inadmissible physical evidence of an offense against the witness, K.E., as set

forth in the trial court’s oral reasons for judgment, affected the trial court’s credibility

assessment. Therefore, the trial court’s delinquency adjudication must be reversed and

the matter remanded for a new adjudication hearing.

Having determined that Defendant’s second assignment of error has merit and

warrants a reversal of the adjudication in this case, we need not address Defendant’s

first assignment of error or the error patent set forth herein.

CONCLUSION

We reverse and vacate the trial court’s delinquency adjudication and disposition

in this juvenile case and remand the case for further proceedings.

ADJUDICATION VACATED AND MATTER REMANDED.

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