NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 10 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ODECE DEMPSEAN HILL, No. 20-17369

Petitioner-Appellant, D.C. No. 2:19-cv-04836-DWL

v.

MEMORANDUM*

ATTORNEY GENERAL FOR THE STATE

OF ARIZONA; DAVID SHINN, Director, Arizona Department of Corrections,

Respondents-Appellees,

and

CHARLES L. RYAN,

Respondent.

Appeal from the United States District Court for the District of Arizona Dominic Lanza, District Judge, Presiding

Argued and Submitted March 9, 2022 Phoenix, Arizona

Before: HAWKINS, PAEZ, and WATFORD, Circuit Judges. Dissent by Judge PAEZ

Odece Hill appeals from the district court’s order denying his petition for a

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Page 2 of 4

writ of habeas corpus, which challenged the lawfulness of his convictions arising

from the sexual assault of a victim who had passed away by the time of trial. We

affirm.

1. The state court rejected Hill’s Confrontation Clause challenge to the

admission of a statement made by the victim to a sexual assault nurse examiner

describing the alleged sexual assault. See State v. Hill, 336 P.3d 1283 (Ariz. Ct.

App. 2014). We conclude that this decision was neither contrary to, nor involved

an unreasonable application of, clearly established federal law as determined by

the Supreme Court of the United States. See 28 U.S.C. § 2254(d)(1).

The Confrontation Clause restricts the admission of testimonial statements

made by a non-testifying witness unless the witness is both unavailable and the

defendant had a prior opportunity for cross-examination. Crawford v. Washington,

541 U.S. 36, 68 (2004). The Supreme Court has held that a statement is

“testimonial” when the objective circumstances of the exchange eliciting the

statement indicate that there is no ongoing emergency and that the primary purpose

of the exchange was to “prove past events potentially relevant to later criminal

prosecution.” Davis v. Washington, 547 U.S. 813, 822 (2006); see also Michigan

v. Bryant, 562 U.S. 344, 358 (2011).

In rejecting Hill’s Confrontation Clause claim, the Arizona Court of Appeals

identified the correct governing law—the primary-purpose test set forth in Davis Page 3 of 4

and Bryant. See Hill, 336 P.3d at 1286–87. The state court then evaluated the

objective circumstances, including where the encounter took place, the formality of

the exchange, the victim’s medical condition, and whether law enforcement

officers were present. Id. at 1289–90. Based on these factors, the state court

concluded that “[t]he open-ended question (‘Tell me why you are here’), posed to

the victim in the emergency room, was not aimed at collecting evidence but at

gathering information about the victim’s medical condition.” Id. at 1290. The

court acknowledged that there was also an “investigative component” to the

nurse’s examination but concluded that the objective circumstances indicated that

the “primary purpose was medical treatment, not the collection of evidence of a

crime.” Id.

The state court applied the correct legal standard and conducted a fact-

intensive analysis of the objective circumstances of the nurse’s examination. No

decision of the Supreme Court clearly establishes that this fact-intensive analysis

was incorrect. Because fairminded jurists could disagree about whether the

primary purpose in these circumstances was medical treatment or providing

evidence for later criminal prosecution, Hill is not entitled to habeas relief. See

Harrington v. Richter, 562 U.S. 86, 101 (2011).

Hill also contends that the state court’s decision was erroneous under the

Supreme Court’s decisions in Melendez-Diaz v. Massachusetts, 557 U.S. 305 Page 4 of 4

(2009), and Bullcoming v. New Mexico, 564 U.S. 647 (2011). However, because

the examination report created by the nurse was not itself admitted into evidence,

those cases are inapposite.

2. The state court’s decision was not based on an unreasonable

determination of the facts under 28 U.S.C. § 2254(d)(2). Hill’s argument under

§ 2254(d)(2) is entirely derivative of his argument under § 2254(d)(1) that the state

court unreasonably applied clearly established law to the facts surrounding the

nurse’s examination, as none of the relevant facts here are in dispute. For the

reasons explained above, we reject this argument as well.

AFFIRMED.

FILED

Odece Hill v. Attorney General of the State of Arizona, et al., No. 20-17369

MAY 10 2022

Paez, J., Circuit Judge, dissenting: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I respectfully dissent. In my view, the victim’s statement was testimonial,

and the state court’s rejection of Hill’s Confrontation Clause challenge was an

unreasonable application of clearly established federal law.

As the majority explains, Karyn Rasile (“Rasile”), the sexual assault nurse

examiner who examined the victim, testified at trial to the statements that the

victim made during the examination. In affirming the district court’s denial of

habeas relief, the majority overlooks the surrounding “relevant circumstances” of

the examination. Michigan v. Bryant, 562 U.S. 344, 369 (2011). These

surrounding circumstances lead me to conclude that reversal is warranted.

It was clearly established law at the time of the state appellate court’s

decision that a defendant’s Sixth Amendment Confrontation right is violated when

a testimonial statement is admitted at trial despite the declarant being unavailable

and the defendant having had no prior opportunity to cross-examine the declarant.

Crawford v. Washington, 541 U.S. 36, 59, 68 (2004). To determine whether a

statement is testimonial, we ask whether the “primary purpose” of the interrogation

was “to enable police assistance to meet an ongoing emergency,” which would

render the statement nontestimonial, or to “establish or prove past events

potentially relevant to later criminal prosecution,” which would make the statement

1 testimonial. Davis v. Washington, 547 U.S. 813, 822 (2006). In determining

whether a statement is testimonial, we consider: (1) whether the statement occurred

during an “ongoing emergency” or was necessary to resolve one; (2) whether the

statement described “events as they were actually happening” or “past events”; (3)

how “formal[]” the interrogation was; and (4) how a “reasonable participant[]”

viewing the declarant and interrogator’s “statements and actions” and the

surrounding “circumstances” would perceive the exchange’s primary purpose.

Davis, 547 U.S. at 827 (citation omitted and alteration in original); Bryant, 562

U.S. at 359–60.

Considering these factors, in my view, the victim’s statement was

testimonial, and the state court’s dismissal of Hill’s Confrontation Clause

challenge was an unreasonable application of clearly established federal law.

There was no “ongoing emergency” when Rasile examined the victim. Davis, 547

U.S. at 822. The victim’s statement, which detailed the specifics of the sexual

assault, described “past events” that were obviously “relevant to later criminal

prosecution.” Id. Although the examination took place in a hospital, it was

relatively formal. Bryant, 562 U.S. at 366. Rasile asked every question on the

Report, even those that did not apply to the victim or were pertinent only to a

criminal prosecution, because she was “required” to do so.

2 Perhaps most importantly, Rasile’s “statements and actions” would lead a

“reasonable participant[]” to perceive that the examination’s primary purpose,

including the question “why are you here,” was to gather evidence for a subsequent

criminal prosecution. Id. at 360. Rasile consulted a law enforcement officer

before examining the victim and explained to the victim that the examination

would include collection of evidence. The victim, who already had been treated by

emergency room staff, thereafter authorized Rasile’s examination by signing a

state-created form entitled, “Sex Crimes Evidence Report” (“Report”). The Report

authorized Rasile “to perform a medical forensic examination” and “treatment,” to

“collect[] . . . evidence,” to “photograph[]” the victim’s “injur[ies],” and to “release

. . . copies of the complete report to the law enforcement agency for purposes of

prosecution.”

It was under these circumstances that Rasile began the examination by

asking “why are you here,” to which the victim responded with the statement that

Rasile later relayed at trial. Rasile then swabbed the victim’s mouth, vagina, and

anus, drew blood, and asked all the questions on the Report, even those with no

apparent medical purpose. Rasile ultimately diagnosed the victim with “[s]exual

assault by history,” “[m]oderate genital and [n]o anal injury by exam,” “[e]vidence

of penetration of the vulva by exam and laboratory findings,” and “[c]rime lab

results pending.” After the examination, Rasile did not prescribe any medication

3 to the victim or schedule a follow-up appointment with her. Considering Rasile’s

actions and the surrounding circumstances, a reasonable participant would view the

examination as primarily for the purpose of “creating an out-of-court substitute for

trial testimony.” Bryant, 562 U.S. at 358.

The victim’s statement was testimonial under all the indicia outlined by the

Supreme Court in Davis and Bryant. Davis, 547 U.S. at 827; Bryant, 562 U.S. at

359–60. The state court failed to duly consider all of the circumstances of the

victim’s examination. For these reasons, the state court’s application of clearly

established federal law was unreasonable.

The state court’s error also resulted in actual prejudice. Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993) (citation omitted); Fry v. Pliler, 551 U.S.

112, 121 (2007). As the state admits, if Rasile had not testified to the victim’s

statement, the prosecution would have been unable to prove Counts 16 and 17, as

the statement provided the only details of which sex acts occurred in the bathroom.

Because of the importance of the victim’s statement, the absence of other

corroborating evidence, and the overall weakness of the prosecution’s case as it

related to Counts 16 and 17, the admission of the victim’s statement “had [a]

substantial and injurious effect or influence in determining the jury's verdict.”

Brecht, 328 U.S. at 637; Merolillo v. Yates, 663 F.3d 444, 455 (9th Cir. 2011).

For these reasons, I respectfully dissent.

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