Duhs v. Capra (83 F. Supp. 3d 435, 2015)

MEMORANDUM, ORDER, AND JUDGMENT

JACK B. WEINSTEIN, Senior District Judge:

Table of Contents

I. Introduction. .439

II. Ripeness_ .440

TTT TTsr-t.s .440 i i '

A. The Bathtub: People’s Exhibit 11. ^ 4^ I — 1

B. The Bathtub: People’s Exhibit. 12. ^ fO

C. The Bathtub: People’s Exhibit 13. ^ w

D. Admissibility and Competency Hearings. ^

E. Resident Dr. Gold’s Testimony Relating Child’s Declaration hpu ^ *v]

F. Jury Trial. ^ Cn 1 — 1

IV. Procedural History. ^ cn K

A. Grand Jury Indictment. ^ üi H

B. Jury Trial. üi H

C. Appeal to Appellate Division. en ho

D. Appeal to the New York State Court of Appeals E. Writ of Coram Nobis. ^ üi üi iMO

F. Denial of Appeal from Denial of Writ of Coram Nobis LQ

G. Federal Habeas Proceedings. lo LQ

V. Standard of Review. CJI Ü1

A. Deference to State Court. CR Ü1

B. “Contrary to” and “Unreasonable Application”. Ul O

C. “Clearly Established Federal Law”. Ü7 <1

D. Harmless Error. CR <3

VI. Inadequate Assistance of Counsel.457

VIL Confrontation Clause.

A. Law .

1. As Analyzed by the State Courts.

2. As Determined by the Supreme Court

a) Ohio v. Roberts.

b) Crawford v. Washington .

c) Companion Cases: Davis v. Washington & Hammon v. Indiana

d) Michigan v. Bryant.

e) Subsequent Supreme Court Cases...

f) As Analyzed by the Court of Appeals for the Second Circuit

g) As Analyzed By Other Courts.

3. Confrontation Rule in Present Case .

a) Context.

b) Combined Inquiry of Interrogator’s and Declarant’s Positions

(1) Step One: The Declarant’s Perspective.

(2) Step Two: The Interrogator’s Perspective .

(3) Step Three: The Circumstances of Questioning.

B. Application of Facts to Law.

a) Mistaken Reliance on Supreme Court Dicta.

b) Unreasonable Application of Clearly Established Supreme Court Law. LO 0

(1) The Declarant’s Perspective. LO 0 ^

(2) The Interrogator’s Perspective. t— 0

(3) The Circumstances of Questioning. CO ÍD

c) Harmless Error Review.1. CO ^

(1) The Statute: Assault in the First Degree. CO co ^

(2) Prosecution’s Questionable Case: Defendant’s Intent to Scald the Child.

(3) Critical Importance of Child’s Declaration. ^

(4) Child’s Declaration Not Cumulative.

d) Policy Implications.

e) Case Pending Before the United States Supreme Court ... r-t ^

VIII. Conclusion. .472

I. Introduction

Petitioner is granted a writ of habeas corpus. 28 U.S.C. § 2254 (2012).

A three-year-old boy was scalded in a bathtub. The critical evidence: that day, in response to a pediatric medical resident’s questioning, the child said: petitioner “would not let me out.” Transcript of Record (“Trial Tr.”) at 161:14-16, 162:9 (“he wouldn’t let me out”), People v. Duhs, Richmond Cty. Indict. No. 43/2006 (N.Y.Crim.Ct. Feb. 6-9, 2007).

The boy did not testify, even though, at the prosecution’s request, the court had found him competent. Transcript of Record (“Pretrial Hr’g Tr.”) at 366:15-367:2, People v. Duhs, Richmond Cty. Indict. No. 43/2006 (N.Y.Crim.Ct. Feb.' 1-2, 2007).

Introduction of the child’s declaration violated petitioner’s Sixth Amendment right of confrontation. U.S. Const, amend. VI.

II. Ripeness

A jury convicted petitioner Michael Duhs of Assault in the First Degree, N.Y. Penal Law § 120.10(1), a felony, and Endangering the Welfare of a Child, N.Y. Penal Law § 260.10(1), a misdemeanor. People v. Duhs, 16 N.Y.3d 405, 922 N.Y.S.2d 843, 947 N.E.2d 617, 618 (2011) (summarizing lower court’s findings). He was sentenced to twenty years imprisonment on the first count, followed by five years post-release supervision, and a concurrent definite term of one year on the second. See Pet’r’s Section 2254 Mot. (“Pet’r’s Br.”) 1, ECF No. 1; Resp’t’s Aff. in Opp. (“Resp’t’s Aff.”) 2, ECF No. 7. He had a criminal record which was not introduced at trial. ■ Pretrial Hr’g Tr. at 39:8— 44:23. He has served some eight years. See Pet’r’s Br. 1.

The parties have stipulated that the state collateral attack was “adjudicated on the merits,” and this petition is ripe for decision. See Tr. of Civ. Cause for Non-Evid. Hr’g (“H’rg Tr.”) 61:13-18, ECF No. 48; see also Howard v. Walker, 406 F.3d 114, 122 (2d Cir.2005) (An “adjudication on the merits” by a state .court occurs “when it (1) disposes of the claim on the merits, and (2) reduces its disposition to judgment.”) (internal quotation marks and citations omitted).

III. Facts

Early on September 16, 2005, Stacey Andersen, the child’s mother, left her home on Staten Island to go to medical assistant school. Trial Tr. at 77:7-16, 78:7-8, 82:18-83:3, 85:10-25, 115:3-7, 116:17-18 (Andersen, S.). Her three-year-old son remained with petitioner, her romantic partner with whom she lived. Id. at 78:5-78:16, 82:14-15, 111:24-112:7.

The mother, the petitioner and the child, so far as the evidence showed, had a loving, caring relationship. Id. at 112:6-7, 114:14-20. The mother and petitioner had known each other for more than ten years. Id. at 111:15-25. She testified at trial that she loved him, id. at 112:6-7, and agreed that he was “very good” to the child. Id. at 114:16-17. They both worked to keep a clean home. Id. at 112:8-18 (Andersen, S.); id. at 249:7-8 (Ramirez). The child, according to a child abuse investigator, was “properly taken care of.” Id. at 250:17-20 (Ramirez). He had his own room; he never wanted for food. Id. at 112:19-113:4 (Andersen, S.), 249:9-11 (Ramirez). He had “lots of toys.” Id. at 249:15-17 (Ramirez). The record showed no history of violence by petitioner against the mother or child, and no reason to think that petitioner had ever, or would ever, intentionally hurt the child. Id. at 114:18-24 (Andersen, S.), 250-251 (Ramirez) (inspection of the house reveals no indications of child abuse).

On days when the mother went to school, petitioner would generally wake the child, dress him, and take him to preschool. Id. at 84:19-25, 115:11-117:4 (Andersen, S.). When petitioner did not work, it was his practice to stay home with the child while the mother attended school. Id. at 84:8-11.

The three lived in a one bathroom bungalow, which contained a bathtub. Id. at 79:4-11. The tub presented a potential hazard, especially for a child. The water flowed quickly from the faucet and it was “very hot;” the mother had had a dispute with the landlord about the water going from warm to very hot without any warning. Id. at 81:4-82:3, 123:1-8. The only witness for the defense, the child’s grandfather, verified that, on the day in question, the water heater, located outside the house, read “hot,” the “highest setting.” Id. at 351:2-353:25 (Andersen, M.).

The tub had a makeshift design. It had the opposite orientation of most tubs: the showerhead with faucets was installed on one end, the drain on the other. The drain had no stopper. Id. at 80:2-81:3 (Andersen, S.); Repro. of Trial Ex.’s 11, 12, and 13 (“People’s 11-13”), ECF No. 44-1-44-3; see infra Parts III.A, B, & C. Above the drain was an overflow hole, measuring approximately 2.5 to 3 inches in' diameter. Trial Tr. at 300:14-17 (Hemmer). The hole did not connect to anything. People’s 11-13; Trial Tr. at 300:8-13, 318:2-9 (Hemmer). On the other side of the hole, leaning against the outside of the tub, was a thin wooden plank, jerry-rigged to block the hole. Trial Tr. at 109:13-109:19 (Andersen, S.). In the space between the board and the hole, a loose pipe jutted up at angle from the floor. Id. at 317:25-318:9, 322:1-5 (Hemmer). See People’s 11-13; Resp’t’s’ Ltr., Dec. 10, 2014, ECF No. 46 (pictures placed in evidence at trial were relied upon by respondent).

A. The Bathtub: People’s Exhibit 11

According to the mother, she received a call from the petitioner at approximately noon on the day in question, informing her of the scalding in what might be characterized as a critical admission by petitioner of some fault through inattention, id. at 87:9-22 (Andersen, S.):

[Asst. District Attorney] Stacey, what did the defendant tell you on the phone? [The Mother] The baby’s feet got burned in the bathtub. I said, how did the baby’s feet get. burned. He said, I really can’t recall exactly how it happened, everything is pretty much a fog.

From what I can remember he said that he turned the hot water on and he ran out to smoke a cigarette or whatever he did and he heard the baby crying, came running in the house, that [the child’s] hands were stuck in the hole, he was trying to get his hand out of the hole then he realized that the water was so hot....

Id. at 87:25-88:17 (emphasis added).

Petitioner told the mother on the phone that the child’s feet were “a little red but it was no big deal.” Id. at 118:7-10. The mother apparently told the petitioner to put the child’s feet in cold water. Id. at 312:16-18 (Hemmer), 242:1-4 (Ramirez), but see id. at 119:5-33 (Andersen, S.) (mother disputed this account). Petitioner told the mother that he had put the child’s feet in cold water right after the incident. Id. at 138:15-139:2 (Andersen, S.).

Arriving home late that afternoon, the mother found the petitioner and the child in the child’s room. Trial Tr. at 92:25-93:25 (Andersen, S.); but see 337:17-338:10, 340:10-16 (Barbaria) (petitioner was in separate room when they arrived home). She observed the injuries, took an ice pack from the freezer, applied it to the child’s burns, and took the child to the Staten Island University Hospital. Id. at 93:1-13 (Andersen, S.), 339:11-19, 340:17-18 (Barbaria). The petitioner accompanied her, along with her ten-year-old niece. Id. at 122:10-17 (Andersen, S.). In the car en route to the hospital, the niece heard the child say, using the mother’s nickname for the petitioner, “Babe put me in hot water.” Id. at 341:2-3 (Barbaria). There is no evidence that the petitioner responded to this statement.

The child was admitted to the ICU burn unit. Id. at 95:16-20. He was cared for by treating physicians “Dr. Cooper and Dr. Finkelstein,” id. at 95:21-22 (Andersen, S.) and Dr. Tricia Jean Moriority Gold, a resident doctor. Id. at 158:5-159:8, 164:11-20 (Gold). While the child was being treated that evening, petitioner stayed at the hospital with the mother; petitioner was “upset and crying”. Id. 95:14-15, 122:12-20 (Andersen, S.).

The following day, the child was treated by Rachel Lucente, a registered nurse specializing in wound care. Id. at 254:25-256:3 (Lucente). Dr. Michael Cooper, a burn expert, also treated the child. Id. at 42:2-11 (Cooper). He testified that the child sustained “second and third degree burns to his right and left lower legs which continued over his ankles and involved both feet;” the injuries reached “the lower third of his legs.” Id. at 44:3-13. There was a “very distinct line between non-burned and burned skin [that was] ... symmetric on the right and left legs and feet,” consistent with an “immersion injury,” as opposed to “accidental scalding.” Id. at 45:9-25. On direct examination, he explained the distinction to the jury:

Q What is the difference in appearance between an immersion bum and an accidental scalding or splash bum?

A An immersion bum is usually indicated by a very distinct line of demarcation between skin that’s burned and skin that’s not burned. There’s usually an absence of splash marks.

Id. at 38:24-39:5 (emphasis added).

Cooper admitted that he was not 100% certain of the cause of the burns. Id. at 62:13-63:1. He testified that the burns were not uniform: the child’s bottom of his left heel did not appear to be burned at all. Id. at 61:1-21. He stated that children’s skin is “thinner than the skin of adults;” water does not burn an adult in the same manner as it may burn a child. Id. at 60:9-19. He admitted that contact with cold water for a sustained period could exacerbate the injury. Id. at 62:3-12.

Another expert, Dr. Stephen Ajl, who reviewed hospital records, but did not examine the child, testified that the demarcation lines and lack of “splash marks” were definitely indicative of an “inflicted immersion burn injury.” Id. at 217:4-218:9(Ajl). He explained his theory:

Q When you say inflicted, could Vou explain that to the jury?

A It means that somebody did this to a child. Either a child is placed in hot water and not allowed to move or the child is placed into a■ tub, for instance, where there is no water and the child is held firmly so they can’t move and then the tub can be filled with water.

Q Is it possible to have demarcation lines without being immersed in an immersion burn?

A I don’t think so. I can’t think of a scenario where that would happen.

Id. at 217:19-218:5(Ajl) (emphasis added).

In oral statements to the mother, to the Emergency Child supervisor/investigator Edgar Ramirez at the hospital, to Detective James Hammer at the hospital and at the home, petitioner stated that he put the child in the bathtub, left him unattended, and, hearing him screaming, returned to find him standing in the hot water with his hand stuck in the overflow drainage hole. Id. at 88:2-12 (Andersen, S.), 231:8-15 (Ramirez), 297:19-24 (Hemmer).

Petitioner gave various answers as to why he left the child alone: “to get some clothes for the child,” id. 230:18-22 (Ramirez), to “answer the front door,” id. at 297:19-24 (Hemmer), to “talk to a neighbor,” id. at 234:8-13 (Ramirez), “to smoke a cigarette,” id. at 301:3-9 (Hemmer), or a combination of these activities. Id. at 231:8-15 (Ramirez).

The Emergency Child Services supervisor/investigator Ramirez testified that petitioner told him that “he had placed the child in the tub. The child had opened the water.” Id. at 234:8-10 (Ramirez). Petitioner told Detective Hemmer that the child had probably been throwing toys into the drainage hole and gotten his hand stuck inside. Id. at 299:14 — áb (Hemmer).

Detective Hemmer testified that when he viewed the scene later in the evening, no toys were present outside the tub or in the drainage hole. Id. at 300:22-23; cf. id. at 233:19-21 (Ramirez) (observed no toys inside the drainage hole). But when the mother returned to the apartment a month later, during which time the petitioner had been in custody and therefore had no access to the area, she found toys inside the drainage hole. Id. at 126:7-11 (Andersen, S.).

The evening of the incident, the detective took photos of the bathtub. Id. at 302:1-9 (Hemmer); see supra Parts III.A, B & C. He later testified that he only saw one toy in the bathroom. Id. at 320:16-23 (Hemmer). Ramirez testified that he “observed ... a big toy inside the tub.” Id. at 233:1-10 (Ramirez).

Their testimony contradicted People’s Exhibit 11, which is in evidence. See supra Part III.A. Exhibit 11 shows three toys. Id. A big toy is in the tub, under the faucet. The second toy, a small green car, and the third, a grey and blue dolphin, are perched in a metal soap-holder basket above the tub. They are to the left of, and on almost the same level, as the three knobs that control the temperature and the flow of water into the tub. On the outer lip of the tub, directly beneath the metal basket, sits a soap dish. It appears to have a small, white piece of soap inside it. Id. Nothing is placed on the opposite lip of the tub closest to the right most faucet knob.

It appears that, in the course of photographing, the toys and other items were moved. The last photograph, Exhibit 13, supra Part III.C, shows the whole tub. In contrast to Exhibit 11, the metal basket now appears to be devoid of toys; a detached, plastic drain stopper appears in the metal basket; the small green car appears on the outer ledge of the tub in the soap dish, directly beneath the metal basket. There is no big toy in the tub below the faucet. On the opposite outer lip of the tub, closest to the right most faucet knob, there now appears to be a whitish-blue block of soap. On a lip of the drain-end of the tub, rests a hot pink bar of soap.

In Exhibit 12, see supra Part III.B, a photo of the drain-end of the tub, what appears to be a plastic, detached, drain stopper rests on the lip of the tub. The pink soap is not in sight.

D. Admissibility and Competency Hearings

On February 2, 2007, during a break in jury selection, a preliminary hearing was held to determine the admissibility of the child’s statements to the resident doctor. Pretrial Hr’g at 334:15-351:5, 367:3-370:10. The child was not questioned about the incident. Id. at 358:19-365:8.

The child stated that he was four years old, correctly identified the colors of objects, gave the names of family members, identified his favorite television show and the superheroes he liked, refused to show his fingers, said he did not know the ABCs, just counting, and was eager to demonstrate his counting but refused to identify his favorite food. Id. at 359:1-363:23. The court then asked him questions about truthfulness:

The Court: ■ [redacted], one more question. Tell me what a lie is?

[The Child]: A lie is when you get punished and you lie to mommy what else?

The Court: [redacted],do you know what the truth is? You told us what a lie is. Can you tell us what the truth it?

[The Child]: Yeah!

The Court: Tell us.

[The Child]: A lie is when you lie and then you always lie to someone and then that’s not nice to do.

The Court: Is it nice to tell the truth? [The Child]: Yeah.

The Court: Do you tell the truth?

[The Child]: Yeah.

The Court: And what happens if you lie?

[The Child]: I get punished.

Id. at 364:9-24.

The court ruled the child competent: Having heard this young man, it seems to me that he’s a relatively intelligent four[-]year[-]old. He can count. He certainly knows his colors. He seems to be cognizant of the difference between the truth and a lie; and, if you lie, you get punished. Otherwise, he seems intelligent certainly enough, clearly enough in my view to permit the reception of unsworn testimony.

Id. at 366:15-23.

E. Resident Dr. Gold’s Testimony Relating Child’s Declaration

Dr. Gold, then a pediatric medical resident at Staten Island University Hospital, provided the key testimony. The transcript of the relevant portions of her direct examination at the trial follows:

Q [Asst. District Attorney]: Were you working at the Staten Island University Hospital on September 16th of 2005?

A Yes.

Q. Do you remember where you were assigned that day?

A I was assigned to the emergency room, the pediatric emergency room.

Q Do you remember what hours you were working that day?

A 7:00 a.m. to 7:00 p.m.

Q Do you remember a patient by the name of [redacted]?

A Yes.

Q Do you remember how old [redacted] was at the time?

A Three

Q Do you remember what your first contact was with [redacted] on that date?

A Yes, he was brought in in his mother’s arms to the emergency room and his mother stated that he had been burned.

Q Did you begin treatment of [redacted] at that time?

A Yes.

Q How did you begin treatment of [redacted]?

A Initially we did an assessment of his vital signs to make sure that he was not in shock, that he was breathing, that he was not unstable in any way. Then we started treating the skin and placing intravenous lines so we can give him medication such as antibiotics, pain medicine, fluids, then started to address the skin with certain burn ointment and continue treatment.

Q Do you remember what his demean- or was when he arrived at the emergency room?

A He was — it’s a little difficult. A combination of scared. He was very quiet'. He was very detached.

Q What were his injuries?

A He had significant loss of skin from what appeared to be burns from the shines [sic] down throughout both feet bilaterally.

Q Do you remember what time he was brought into the emergency room?

A About 5:00 p.m.

Q Did there come a time when you were with [redacted] more or less without anyone around?

A It’s an emergency room so everyone has access to the area of triage where patients first come in.

But, there was a time where I was alone with [redacted] where everyone had primarily cleared the emergency room where I continued to speak to him to have him try to tell me what had happened to him.

Q And when you were with [redacted] mostly alone at this point, were you treating him at that time?

A Treating him, trying to figure out details about what happened, continuing to assess him and examine him physically and develop a rapport with him which we need to do with children.

Q Had you given [the child] morphine at this time?

A No.

Q Do you remember about when you did give him morphine?

A Shortly after 6:00 p.m. [I]t took awhile to get the intravenous line placed.

Q So you had — about what time did you have this conversation with [the child] alone?

A Before that maybe, I don’t know exactly 15, 20 minutes something before 6 o’clock.

Trial Tr. at 158:5-161:5 (Gold).

Her testimony, about the child’s declaration, which inculpated petitioner, was critical:

Q Did you ask [redacted] anything?

A Yes. I asked him multiple times if he could explain to me what had happened to him but I was a stranger to him, he wouldn’t speak very much. And as I continued to ask him and he felt more comfortable when it was just my presence with him. He started to talk to me.

And when I asked him approximately the third time what had happened, he said he wouldn’t let me out. Meaning, he wouldn’t let me out of the bathtub.

[Defense Counsel]: Objection.

The Court: I’ll sustain the objection as to the meaning. You can tell us exactly what you recall the person saying.

A I was referring to the bathtub when I was speaking to the child. So, he wouldn’t let me out is why I made the inference or the assumption.

Q Can you repeat that.

Did you ask him something at this time?

A Yes, what happened. You know, why didn’t you get out of the tub? Why did you get in the tub? Anything, trying to elicit information from him.

Q His response to that question was what?

A He wouldn’t let me out.

Q Again this was before or after you gave him the morphine?

A This is before.

Id. at 161:6-162:12 (emphasis added).

The- resident doctor testified that her qúestions were for the purpose of medical treatment as well as a part of her ethical obligation to determine if he had been abused:

A There are a number of reasons why I would need to ask him that question. Primarily for medical treatment, one, to find out as much information as I can to help with the time line of the treatment.

Two, it’s my hippocratic oath and ethical duty as a doctor as a pediatrician and advocate for children to pursue anything that might help in determining what happened with injuries that are suspicious at all of child abuse, it’s part of my job.

Q Did there come a time when you received a medical history of [redacted] that day from anyone in his family?

A A medical — more specific.

Q Did you speak to anyone in his family about what happened to [redacted]?

A Yes.

Q Who did you speak with?

A I spoke with [the petitioner],

Q What did you ask him?

A I asked him if anything had been done to the child medically, you know, had he been — had he placed any medicine or ice or given him Tylenol, pain medicine anything before the child was brought to the emergency room.

Q Did the defendant respond to that question?

A He did.

Q What was his response?

A No.

Q Did you speak with any law enforcement individuals that day?

A Yes.

[Asst. District Attorney] Thank you. No further questions.

Id. at 162:16-164:1 (emphasis added).

On cross examination, no new relevant information was supplied except for the fact that no record was made of the child’s statement:

[Defense Counsel]:

Q Doctor Gold, you were the first physician to see this child, is that correct?

A One of them, yes.

Q Were you the first doctor to treat him, yes or no?

Were you the first doctor, not the other emergency room personnel, were you the first doctor to begin treatment of [redacted]?

A No, there were three of us in the room, the three doctors.

Q Were you the resident on duty at the time?

A Yes.

Q As the resident on duty, you basically become the treating physician?

A The attending is my supervisor.

Q The attending present?

A Yes.

Q When you were treating [redacted], you were the one directly responsible for his care at that point?

A Yes

Q As part of your duties in the emergency room, you treat patients, correct

A Yes.

Q You make records of those treatments, is that correct?

A Yes.

Q Now a record of a treatment is called a chart in a hospital, right?

A Yes

Q So each patient has a chart?

A Yes.

Q And that’s so the next doctor who comes to treat the child or the next nurse knows what happened before, correct?

A Yes.

Q That’s the purpose of keeping a chart?

A Yes.

Q Those charts are kept in the ordinary course of business, correct?

A Yes.

Q You detail on the chart your interaction with the patient, is that correct?

A Yes.

Q Now you indicated that there came a time when you were alone with [redacted].

Can you describe the setting that you were in at that point, just you and the child?

A Certainly.

It is what we call a triage area for more serious injuries. It’s open. It’s not a closed room. And there can be a curtain that can cover. There are chairs several feet away for people to sit but, the area itself is like an alcove. That’s the area where I was speaking.

Q When you say these curtains, you mean curtains around the bed.

A Curtains, yeah.

Q To give a patient some degree of privacy?

A Yes.

Q Were the curtains drawn when you were with [redacted]?

A No.

Q Pushed back by the wall by the end area?

A Basically.

Q When you were speaking with [redacted], you said at first he wouldn’t speak to you?

A Correct.

Q Then you asked him these questions so that you could have information for your treatment, correct?

A Yes.

Q Did you record these answers anywhere?

A No.

Q Now isn’t the purpose of a chart to record interaction and information from a patient, yes or no?

A Yes.

Q But you did not write down anywhere he wouldn’t let me out, did you?

A No, I didn’t.

Id. at 164:2-167:9 (emphasis added). She apparently reported this conversation with the child to the police. Id. at 171:12-15.

At a hearing outside the presence of the jury to determine admissibility, the testimony of resident Dr. Gold was almost identical with her testimony at trial. See Pretrial Hr’g. at 338:12-350:24.

F. Jury Trial

The government called the following witnesses: Dr. Michael Cooper, treating burn specialist; Stacey Andersen, the mother; Dr. Trida Jean Moriority Gold, pediatric resident; Dr. Stephen Ajl, an independent child abuse and burn expert; Edgar Ramirez, Emergency Child Services supervisor/ investigator; Rachel Lueente, an attending nurse, Detective James Hemmer, investigating police officer; and Elisa Bar-baria, the niece of the mother.

The defense called Martin Andersen, the mother’s father.

IY. Procedural History

A. Grand Jury Indictment

Petitioner was initially indicted by a grand jury on the charges of Assault Second Degree, see N.Y. Penal Law § 120.05(9), a felony, and Endangering the Welfare of a Child, see N.Y. Penal Law § 260.10(1), a misdemeanor. Decision and Order at 1, People v. Duhs, Richmond Cty. Indict. No. 285/2005 (N.Y.Crim.Ct. Nov. 16, 2005).

He moved to inspect and dismiss the indictment. See N.Y.Crim. Proc. Law § 210.20(l)(b) & (c). The trial court dismissed the felony charge of Assault Second Degree, with leave for the people to represent, for failure to properly instruct the grand jury on an intent element. Decision and Order at 1, Duhs, Richmond Cty. Indict No. 285/2005.

After representation to the grand jury, petitioner was indicted on the higher charge of Assault in the First Degree, see N.Y. Penal Law § 120.10(1), and reindict-ed on the charge of Endangering the Welfare of a Child. Affirmation in Response to Defendant’s Motion to Dismiss Indictment at 4, People v. Duhs, Richmond Cty. Indict. No. 43/2006 (N.Y.Crim.Ct. July 25, 2006) (stating that petitioner was reindict-ed on February 15, 2006).

B. Jury Trial

No individual with direct knowledge of the events immediately prior to and during the child’s scalding testified. Petitioner chose not to testify. Although the child was deemed competent to provide unsworn testimony, the prosecution did not call him as a witness. Pretrial Hr’g at 366:15-23; Transcript of Record, People v. Duhs, Richmond Cty. Indict. No. 43/2006 (N.Y.Crim.Ct. Feb. 6-9, 2007). See supra Part IV.D.

Petitioner was convicted of Assault in the First Degree, see N.Y. Penal Law § 120.10(1), and Endangering the Welfare of a Child, see N.Y. Penal Law § 260.10(1).

C. Appeal to Appellate Division

Petitioner appealed to the Appellate Division of the New York Supreme Court on two grounds: 1) resident Dr. Gold’s testimony violated his Sixth Amendment right to confrontation; and 2) the people’s expert witness testimony invaded the fact-finding province of the jury.

Petitioner contended that the trial court erred in admitting testimony of a physician who had interrogated the child “because the prosecutor did not establish that the child’s failure to get out of the bathtub was relevant to his medical treatment;” he argued that this made the child’s statement inadmissible hearsay and testimonial in violation of his constitutional right to confront witnesses. Brief for Defendant-Appellant at 13, People v. Duhs, 884 N.Y.S.2d. 479 (N.Y.App. Div.2d Dep’t 2009) (No. 07-06034). As to the expert testimony that the child’s burns were intentionally inflicted, petitioner argued that “[t]his testimony was improper because the jury could have determined whether the burns had been inflicted intentionally or had occurred by accident without an expert opinion.” Id. at 29-30.

- The Appellate Division affirmed, holding that the child’s declaration to resident Dr. Gold was nontestimonial and therefore its admission did not violate petitioner’s Sixth Amendment right; the contention that the expert witness testimony invaded the fact-finding province of the jury was held to be unpreserved for appellate review. See People v. Duhs, 65 A.D.3d 699, 884 N.Y.S.2d 479, 481 (N.Y.App.Div.2d Dep’t 2009).

Petitioner was granted a leave to appeal to the New York Court of Appeals on the issue of petitioner’s Sixth Amendment right to confrontation. See People v. Duhs, 14 N.Y.3d 887, 903 N.Y.S.2d 775, 929 N.E.2d 1010 (N.Y.2010).

D. Appeal to the New York State Court of Appeals

On appeal to the New York State Court of Appeals, petitioner argued that the child’s statement was testimonial because it “was a direct accusation of [the] essential element of the crime.” Brief for Defendant-Appellant at 32, People v. Duhs, 947 N.E.2d 617 (N.Y.2011) (No. 2011-0059). Petitioner asserted that for this statement to be relayed to the jury through a “poised, professional, and seemingly neutral adult witness,” and not also by the child, constituted a violation of his Sixth Amendment confrontation right. Id. at 44-45. He also argued that the statement was inadmissible hearsay under New York law. Id. at 47.

The Court of Appeals affirmed the Appellate Division’s ruling, holding that the declaration was nontestimonial because resident Dr. Gold’s primary purpose in interrogating the child had been to provide medical care. See People v. Duhs, 16 N.Y.3d 405, 922 N.Y.S.2d 843, 947 N.E.2d 617, 619-20 (2011). Because it contains a critical misconception of the confrontation rule, the full Court of Appeals opinion is set out below and discussed in infra Part VII.A.1.

Defendant, who was babysitting his girlfriend’s three-year-old son, allegedly placed the child’s feet and lower legs into a tub filled with scalding hot water, resulting in second and third degree burns. When the child’s mother returned home approximately five hours later, defendant and the mother took the child to the hospital, where he was examined and treated by an emergency room pediatrician.

At trial, the court permitted the pediatrician to testify about a statement the child made outside the presence of his mother and defendant. Specifically, when the pediatrician asked the child why he did not get out of the tub, he responded, “he wouldn’t let me out.” The pediatrician did not include this statement in the child’s medical records, nor did the child testify at trial. Defendant was convicted of assault in the first degree and endangering the welfare of a child, and, on appeal, the Appellate Division affirmed. 65 A.D.3d 699, 884 N.Y.S.2d 479 (2009). A Judge of this Court granted leave. 14 N.Y.3d 887, 903 N.Y.S.2d 775, 929 N.E.2d 1010 (2010).

The only issues before us are whether the trial court erred in allowing the pediatrician’s testimony concerning the child’s statement in evidence as germane to the child’s medical diagnosis and treatment, and whether its admission violated defendant’s constitutional right to confront the witnesses against him. Supreme Court properly concluded that the child’s statement was germane to his medical diagnosis and treatment and therefore was properly admitted under that exception to the hearsay rule. When seeking treatment for injuries, there is a “strong inducement for the patient to speak truly of his pains and sufferings’ and therefore ‘statements expressive of [a patient’s] present condition are permitted to be given as evidence only when made to a physician for the purposes of treatment.” Davidson v. Cornell, 132 N.Y. 228, 237-238, 30 N.E. 573 (1892).

Here, the pediatrician testified that, during her initial assessment, she observed that the child had sustained second and third degree burns to his feet and legs. The pediatrician testified that she asked the child how he had been injured to determine the time and mechanism of the injury so she could properly administer treatment, the type of treatment being dependent on when and how the child was injured. Moreover, the pediatrician testified that by asking the question, she was trying to ascertain whether the child had a predisposing condition, such as a neurological disorder (e.g., was prone to seizures or developmental delays) that may have prevented him from getting out of the bathtub.

Defendant nevertheless contends that, by allowing the pediatrician to testify as to what the child told her, he was deprived of his Sixth Amendment right to confront the witness against him in violation of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 [2004] and Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 [2006]. The United States Supreme Court held in those cases that the Confrontation Clause prohibits the “admission of testimonial statements of a witness who [does] not appear at trial unless [the witness] was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” (Davis, 547 U.S. at 821, 126 S.Ct. 2266, quoting Crawford, 541 U.S. at 53-54, 124 S.Ct. 1354).

At issue here is whether the child’s statement to the pediatrician was testimonial, as defendant claims, or nontesti-monial, as the People assert. In Davis, the Supreme Court held that only “testimonial statements” can “cause the de-clarant to be a ‘witness’ within the meaning of the Confrontation Clause,” and “[i]t is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.” 547 U.S. at 821, 126 S.Ct. 2266. “Statements are nontestimonial when made in the course of ... interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to ... meet an ongoing emergency’ and ‘are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143, 1154, 179 L.Ed.2d 93 [2011], quoting Davis, 547 U.S. at 822, 126 S.Ct. 2266). “The “primary purpose” test reflects an ‘important distinction between a statement (generated through police interrogation or otherwise) that ‘accuses’ a perpetrator of a crime ... versus one that serves some other nontestimonial purpose[.]” People v. Rawlins, 10 N.Y.3d 136, 148, 855 N.Y.S.2d 20, 884 N.E.2d 1019 [2008], cert. denied sub nom. Meekins v. New York, 557 U.S. 934, 129 S.Ct. 2856, 174 L.Ed.2d 601 [2009]). Significantly, “[t]he lodestar ... that emerges from Davis is the purpose that the statement was intended to serve.” ([I]d.) Indeed, the Supreme Court recently explained that

“[w]hen, as in Davis, the primary purpose of an interrogation is to respond to an ‘ongoing emergency,’ its purpose is not to create a record for trial and thus is not within the scope of the Clause. But there may be other circumstances, aside from ongoing emergencies, when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony. In making the primary purpose determination, standard rules of hearsay, designed to identify some statements as reliable, will be relevant. Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause.” Bryant, 562 U.S. at-, 131 S Ct at 1155).

Applying the primary purpose test here, it is evident that the statement “he wouldn’t let me out” was not of a testimonial character, since the primary purpose of the pediatrician’s inquiry was to determine the mechanism of injury so she could render a diagnosis and administer medical treatment. Moreover, the Supreme Court has noted that “statements to physicians in the course of receiving treatment would be excluded, if at all, only by hearsay rules” and not the Confrontation Clause. Giles v. California, 554 U.S. 353, 376, 128 S.Ct. 2678, 171 L.Ed.2d 488 [2008]; see Bryant, 562 U.S. at-n. 9, 131 S Ct at 1157 n. 9. Finally, it is of no moment that the pediatrician may have had a secondary motive for her inquiry, namely, to fulfill her ethical and legal duty, as a mandatory reporter of child abuse, to investigate whether the child was potentially a victim of abuse. Her first and paramount duty was to render medical assistance to an injured child. Accordingly, the order of the Appellate Division should be affirmed.

See People v. Duhs, 922 N.Y.S.2d 843, 947 N.E.2d at 618-20.

No appeal was taken to the United States Supreme Court.

E. Writ of Coram Nobis

Petitioner sought a writ of coram nobis in the Appellate Division pro se, arguing that he received ineffective assistance of appellate counsel because issues of petitioner’s due process rights, including speedy trial, double jeopardy, and the right to effective assistance of trial counsel had not been raised on appeal. He contended that when he attempted to discuss these issues with his appellate counsel they “were all rejected with a simple explanation of ‘no merit,’ ” and the outcome would have been different had they been argued during appeal. Petition for Writ of Error, [Coram] Nobis with Supporting Affidavits at 16, People v. Duhs, 95 A.D.3d 1232, 943 N.Y.S.2d 912 (N.Y.App.Div.2d Dep’t 2012) (No. 2007-06034).

On May 23, 2012, the Appellate Division denied petitioner’s motion for writ of co-ram nobis. See People v. Duhs, 943 N.Y.S.2d at 913.

F. Denial of Appeal from Denial of Writ of Coram Nobis

The New York Court of Appeals denied petitioner leave to appeal from the denial of a writ of coram nobis. See Duhs, 951 N.Y.S.2d 472, 975 N.E.2d 918 (N.Y.2012).

G. Federal Habeas Proceedings

In February of 2013, petitioner filed a pro se petition for a writ of habeas corpus, alleging that 1) the resident doctor’s testimony was hearsay evidence which violated Petitioner’s Sixth Amendment confrontation right; 2) ineffective assistance of trial counsel and 3) ineffective assistance of appellate counsel.

Counsel was appointed. See Criminal Justice Act, 18 U.S.C. § 3006A; CJA 20 Appointment of and Authority to Pay Court Appointed Counsel, ECF No. 5.

Argument on petitioner’s habeas petition was heard in a non-evidentiary hearing. Tr. of Civil Cause for Non-Evidentiary Hr’g (“Hr’g Tr.”), ECF No. 48. Petitioner withdrew his claim for ineffective assistance of trial counsel, leaving two alleged bases for relief: 1) violation of his confrontation right and 2) ineffective assistance of appellate counsel.

Y. Standard of Review

Petitioner’s habeas petition is governed by 28 U.S.C. § 2254 (2012), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Under AEDPA, a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was “adjudicated on the merits” in state court only if it concludes that the adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d) (emphasis added).

Deference is accorded to state court determinations. See infra Part V.A.

A. Deference to State Court

“Federal habeas review of state convictions frustrates both the States’ sovereign power to punish offenders and their good-faith attempts to honor constitutional rights.” Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 787, 178 L.Ed.2d 624 (2011) (internal quotation marks and citations omitted). Relief is only merited in extreme circumstances, to “guard against extreme malfunctions in the state criminal justice systems.” Greene v. Fisher, — U.S. -, 132 S.Ct. 38, 43, 181 L.Ed.2d 336 (2011) (internal quotation marks and citations omitted).

A “federal habeas court may overturn a state court’s application of federal law only if it is so erroneous that there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with [the Supreme] Court’s precedents.” Nevada v. Jackson, — U.S. -, 133 S.Ct. 1990, 1992, 186 L.Ed.2d 62 (2013) (per curiam) (internal quotation marks and citations omitted). This is a “highly deferential standard” that gives state-court decisions “the benefit of the doubt.” Hardy v. Cross, — U.S. --, 132 S.Ct. 490, 491, 181 L.Ed.2d 468 (2011) (per curiam) (internal quotation marks and citation omitted). “AEDPA likewise imposes a highly deferential standard for reviewing claims of legal error by the state court.” Burt v. Titlow, — U.S.-, 134 S.Ct. 10, 15, 187 L.Ed.2d 348 (2013). “If this standard is difficult to meet, that is because it was meant to be.” Harrington, 131 S.Ct. at 786. “[W]e cannot grant ha-beas relief where a petitioner’s claim pursuant to applicable federal law, or the U.S. Constitution, has been adjudicated on its merits in state court proceedings in a manner that is not manifestly contrary to common sense.” Santone v. Fischer, 689 F.3d 138, 148 (2d Cir.2012), cert. denied, — U.S.-, 133 S.Ct. 390, 184 L.Ed.2d 231 (2012) (quoting Anderson v. Miller, 346 F.3d 315, 324 (2d Cir.2003)).

Entitled to great weight are state court findings of fact. 28 U.S.C. § 2254(e)(1) (stating that state court factual findings may not be disturbed except upon a showing of “clear and convincing evidence”). See Smith v. Phillips, 865 F.Supp.2d 271, 278-79 (E.D.N.Y.2012), aff'd sub nom. Smith v. Scully, 588 Fed.Appx. 16 (2d Cir.2014); Burt, 134 S.Ct. at 15 (“[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.”) (quoting Wood v. Allen, 558 U.S. 290, 130 S.Ct. 841, 849, 175 L.Ed.2d 738 (2010)).

B. “Contrary to” and “Unreasonable Application”

“Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state court arrive[d] at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000) (emphasis added); see Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843, 1850, 152 L.Ed.2d 914 (2002) (same).

“Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme Court’s] decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Williams, 120 S.Ct. at 1523; see also McMillon v. Culley, 380 Fed.Appx. 63, 64 (2d Cir.2010), cert. denied, 562 U.S. 987, 131 S.Ct. 426, 178 L.Ed.2d 332 (2010). The application must be “objectively unreasonable,” not merely wrong; even “clear error” will not suffice. Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1175, 155 L.Ed.2d 144 (2003) (internal citations omitted).

“In determining whether a state court’s application of Supreme Court precedent was unreasonable, a habeas court must be guided by the level of specificity of the relevant precedent’s holding, because ‘the range of reasonable judgment can depend in part on the nature of the relevant rule.’ ” Contreras v. Artus, 778 F.3d 97, 110 (2d Cir.2015) (citing Yarborough v. Alvarado, 541 U.S. 652, 124 S.Ct. 2140, 2149, 158 L.Ed.2d 938 (2004)). As the Supreme Court held:

[i]f a legal rule is specific, the range may be narrow. Applications of the rule may be plainly correct or incorrect. Other rules are more general, and their meaning must emerge in application over the course of time. Applying a general standard to a specific case can demand a substantial element of judgment. As a result, evaluating whether a rule application was unreasonable requires considering the rule’s specificity.

Yarborough, 124 S.Ct. at 2149.

C. “Clearly Established Federal Law”

“Clearly established federal law refers to the holdings, as opposed to the dicta, of the Supreme Court’s decisions as of the time of the relevant state-court decision.” Howard v. Walker, 406 F.3d 114, 122 (2d Cir.2005) (internal citations and quotation marks omitted); see also Williams, 120 S.Ct. at 1506 (federal habe-as courts deny relief if it “is contingent upon a rule of law not clearly established by United States Supreme Court precedent at the time the state court conviction became final”).

“[W]hen deciding whether a state-court decision was ‘contrary' to’ or an ‘unreasonable application of ... clearly established Federal law,’ a federal habeas court will generally consider only those Supreme Court opinions issued prior to the state court’s denial of relief. But a Supreme Court decision issued after the relevant state court decision may be considered if it illustrates the proper application of a constitutional principle.” Federal Habeas Manual § 3:27 (June 2014) (emphasis in original) (citing Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 2535-36, 156 L.Ed.2d 471 (2003)).

D. Harmless Error

If a “court finds that the state court engaged in an unreasonable application of established law, resulting in constitutional error, it must next consider whether such error was harmless,” Howard, 406 F.3d at 122 (citations omitted), meaning it “had substantial and injurious effect or influence in determining the jury’s verdict.” O’Neal v. McAninch, 513 U.S. 432, 115 S.Ct. 992, 994, 130 L.Ed.2d 947 (1995) (internal quotation marks and citations omitted); see also Howard, 406 F.3d at 135 (granting writ where state court engaged in an unreasonable application of established law, resulting in constitutional error, and error was not harmless).

To determine whether the error was harmless, courts consider five factors: “(1) the overall strength of the prosecution’s case; (2) the importance of the witnesses] testimony; (3) whether the testimony was cumulative; (4) the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points; and (5) the extent of cross-examination otherwise permitted.” Alvarez v. Ercole, 763 F.3d 223, 233 (2d Cir.2014) (internal citations omitted) (affirming grant of writ of habeas corpus) (citing Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986)).

“When a [federal judge in a habe-as proceeding] has grave doubt about whether a trial error ... had substantial and injurious effect or influence in determining the jury’s verdict, that error is not harmless. And, the petitioner must win.” Wood v. Ercole, 644 F.3d 83, 99 (2d Cir.2011) (holding that petitioner’s videotaped statement made after he invoked his right to counsel was wrongfully admitted at trial and not a harmless error) (citing O’Neal v. McAninch, 513 U.S. 432, 115 S.Ct. 992, 994, 130 L.Ed.2d 947 (1995)) (internal quotation marks omitted).

VI. Inadequate Assistance of Counsel

At the hearing in this court, the petitioner withdrew his claim of inadequate assistance of trial counsel. H’rg Tr. 60:15-61:21. He continued to seek a writ of habeas corpus based on the adequacy of his state appellate counsel. Id.

“[L]egal representation violates the Sixth Amendment if it (1) falls ‘below an objective standard of reasonableness,’ as indicated by ‘prevailing professional norms,’ and (2) the defendant suffers prejudice as a result.” Chaidez v. United States, — U.S.-, 133 S.Ct. 1103, 1107, 185 L.Ed.2d 149 (2013) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)).

An examination of the brief submitted to the Appellate Division indicates that petitioner’s claim is frivolous. See Petition for Writ of Error, [Coram] Nobis with Supporting Affidavits 16, People v. Duhs, 95 A.D.3d 1232, 943 N.Y.S.2d 912 (N.Y.App. Div.2d Dep’t 2012) (No. 2007-06034), aff'd, 19 N.Y.3d 996, 951 N.Y.S.2d 472, 975 N.E.2d 918 (N.Y.2012).

As any astute (and reasonable) appellate counsel would do, counsel fixed on the only two points that might warrant reversal: (1) the application of the confrontation clause, as discussed below; and (2) the admissibility of expert witness testimony. See Brief for Defendant-Appellant 13, 29-30, People v. Duhs, 884 N.Y.S.2d 479 (N.Y.App.Div.2d Dep’t 2009) (No. 07-06034). See also Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 3313, 77 L.Ed.2d 987 (1983) (“[E]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.”). Appellate counsel’s work exceeded minimum standards under prevailing professional norms. The inadequacy claim is frivolous.

The only basis for granting the writ of habeas corpus is for a violation of the Constitution’s confrontation clause discussed below. See infra Part VII.

VII. Confrontation Clause

A. Law

The Sixth Amendment’s confrontation clause provides that in “all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const, amend. VI.

1. As Analyzed by the State Courts

The trial court held a pretrial hearing at which the resident doctor testified and was cross-examined. Pretrial Hr’g at 334-51 (Gold). The court deemed the child’s statement to be “germane and relevant to diagnosis and treatment” and therefore to fall within the hearsay exception for statements made to medical personnel. Id. at 367-70 (court). It was not, the court held,' “testimonial” and therefore did not violate petitioner’s confrontation right. Id. at 370.

Affirming the conviction, the Appellate Division found no error in the trial court’s admission of the child’s statement under the hearsay exception for statements made to medical personnel for the purpose of diagnosis and treatment. See People v. Duhs, 65 A.D.3d 699, 884 N.Y.S.2d 479, 479 (2d Dep’t 2009). Because the resident doctor testified that she asked the question “in order to ascertain whether the child had any neurological injury or deficit,” the statement fell, according to the court, within the hearsay exception. Id. It was “not testimonial” because it was “elicited in furtherance of the. medical treatment necessary to address the ongoing emergency caused by the child’s condition.” Id.

On appeal to the Court of Appeals, petitioner argued that the trial court’s admission of the physician’s testimony was an error that violated his constitutional right to confront his accuser. Brief for Defendant-Appellant at 17, 42, People v. Duhs, 947 N.E.2d 617 (2011). As noted in supra Part IV.D, the Court of Appeals affirmed the Appellate Division’s finding that the statement “ ‘he would not let me out’ was not of a testimonial character, since the primary purpose of the pediatrician’s inquiry was to determine the mechanism of injury so she could render a diagnosis and administer medical treatment.” Duhs, 922 N.Y.S.2d 843, 947 N.E.2d at 619-20. “It is of no moment,” the Court of Appeals went on to state, “that the pediatrician may have had a secondary motive for her inquiry.” Id. That secondary motive, “to fulfill her ethical and legal duty, as a mandatory reporter of child abuse, to investigate whether the child was potentially a victim of abuse,” was not controlling because, the opinion stated, “[h]er first and paramount duty was to render medical assistance to an injured child.” Id.

■ The New York Court of Appeals relied in part on dicta in Giles v. California, 554 U.S. 353, 128 S.Ct. 2678, 2692-93, 171 L.Ed.2d 488 (2008), and dicta in a footnote in Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011) to rule that statements to medical personnel may be excluded by hearsay rules, but not by the confrontation clause. But neither case supported this decision. In Giles, the court was specifically addressing the application of the confrontation clause in forfeiture by wrongdoing cases. In Bryant, the court was merely quoting Giles. Neither case involved statements made to medical personnel, or a child declarant, the critical issues in the instant case.

2. As Determined by the Supreme Court

a) Ohio v. Roberts

The Supreme Court had interpreted the confrontation clause to allow the admission of an “unavailable witness’s out-of-court statement ... so long as it has adequate indicia of reliability.”. Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 1358, 158 L.Ed.2d 177 (2004) (summarizing holding in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980)). Reliability was established if the statement fell “within a “firmly rooted hearsay exception” or bore “particularized guarantees of trustworthiness.” ” Id. See Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 3152, 111 L.Ed.2d 638 (1990) (holding that out-of-court declaration in sex abuse case of three-year-old not qualified to testify did not satisfy “indicia of reliability” requirement so as to satisfy confrontation clause).

b) Crawford v. Washington

In 2004, the “Supreme Court’s decision in Crawford initiated a sea change in [c]on-frontation [cjlause jurisprudence.” McCarley v. Kelly, 759 F.3d 535, 544 (6th Cir.2014) (relying on Crawford to hold that psychologist’s questioning of a child about his mother’s murder ten days following event was “testimonial” and granting writ of habeas corpus). A seven justice majority held that “where testimonial evidence is at issue[,] ... the Sixth Amendment demands what the common law require[s]: unavailability and a prior opportunity for cross-examination.” Crawford, 124 S.Ct. at 1374.

Statements made “during a station-house interrogation about a stabbing were testimonial, and their admission!,] when the [declarant’s] husband, the accused, had ‘no opportunity’ for cross-examination due to spousal privilege!,] made out a Sixth Amendment violation.” Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143, 1152-53, 179 L.Ed.2d 93 (2011) (summarizing holding in Crawford). The Court in Crawford left “for another day” a “comprehensive definition [of testimonial],” but held that, “at a minimum,” “testimonial” statements include “prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and ... police interrogations.” Crawford, 124 S.Ct. at 1374. The Court noted that non-police officers may act as police officers. Id. at 1365 (“The involvement of government officers in the production of testimonial evidence presents the same risk, whether the officers are police or justices of the peace.”).

c) Companion Cases: Davis v. Washington & Hammon v. Indiana

Two years later, an eight-member majority held that the confrontation clause only applies to “testimonial hearsay.” Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 2274, 165 L.Ed.2d 224 (2006). Faced with two domestic violence cases involving police interrogations, the Court considered the definition of “testimonial,” holding- that statements are “testimonial when the circumstances objectively indicate that there is no ... ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Id. at 2273-74 (emphasis added). Thus, a recording of a 911 call identifying the defendant — recorded in the midst of the domestic disturbance — was “nontestimonial” because the victim: (1) “was" speaking about events as they were actually happening; ” (2) she.faced an ongoing emergency — a “bona fide physical threat;” (3) the “nature of what was asked and answered ... viewed objectively ... was such that the elicited statements were necessary to be able to resolve the present emergency” rather than to learn about past events; and (4) the call was conducted under frantic circumstances that a reasonable 911 operator would not find to be safe. Id. at 2276 (emphasis in original).

By contrast, the statements made in the consolidated case, Hammon v. Indiana, were testimonial. There, the police officers responded to a call of a domestic disturbance and found the alleged victim in a separate room from her accuser; she told them everything was fine. While she spoke with police officers, the accuser attempted unsuccessfully to enter the room. She then drafted an affidavit. Id. at 2272. The Court deemed her statements testimonial because (1) they were not made in the course of an ongoing emergency (“no immediate threat to her person”); and (2) the police officer was attempting to divine not “ ‘what is happening,’ but rather ‘what happened.’” Id. at 2278. “Objectively viewed, the primary, if not indeed the sole, purpose of the interrogation was to investigate a possible crime.” Id.

The Court limited the scope of its holding, noting that it did not constitute an “exhaustive classification” of testimonial statements — much less even a comprehensive classification of statements gleaned from police interrogations. Davis, 126 S.Ct. at 2273. It was “unnecessary to consider whether and when statements made to someone other than law enforcement personnel are ‘testimonial.’” Id. at 2274 n. 2. Nonetheless, it opined that some “statements made in the absence of any interrogation” could also be classified as testimonial. Id. at 2274 n. 1, 2276 (noting “the English cases that were the progenitors of the [cjonfrontation [cjlause did not limit the exclusionary rule to prior court testimony and formal deposition.”) (citing Crawford, 124 S.Ct. at 1364, 1365 n. 3).

In a footnote, the Davis Court made a point important for the present case: when determining whether the confrontation clause was violated, focus must be primarily on the statements of the de-clarant, not the questioner. Id. at 2274 n. 1. The Court wrote: “[Ejven when interrogation exists, it is in the final analysis the declarant’s statements, not the interrogator’s questions, that the [cjonfrontation [cjlause requires us to evaluate.” Id. (emphasis added).

d) Michigan v. Bryant

Michigan v. Bryant, decided in 2011, restated the “primary purpose” test. 562 U.S. 344, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011). The Court sustained the admission of statements made by a mortally wounded man to the police concerning the identity of a gunman. These statements were “nontestimonial.” Id. at 1150. Decision was explicitly reserved on “whether and when statements made to someone other than law enforcement are testimonial.” Id. at 1155 n. 3 (emphasis added). See also U