State v. Pendergrass ( 1997 )


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  •               IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT KNOXVILLE                     FILED
    FEBRUARY 1997 SESSION
    December 11, 1997
    Cecil Crowson, Jr.
    Appellate C ourt Clerk
    STATE OF TENNESSEE,                )
    )
    Appellee,            )      No. 03C01-9608-CC-00310
    )
    )      Bledsoe County
    v.                                 )
    )      Honorable J. Curtis Smith, Judge
    )
    TRACEY PENDERGRASS,                )      (Aggravated child abuse)
    )
    Appellant.           )
    CONCURRING OPINION
    I concur in the results reached by the majority opinion. However, I
    question whether the record before us justifies admitting either the victim’s statement to
    the flight nurse as one made for the purposes of medical diagnosis and treatment or the
    victim’s statement in the Chattanooga hospital as an excited utterance.
    When the state seeks to submit a statement by a nontestifying witness
    into evidence in a criminal case, it has the burden to prove the predicate facts by a
    preponderance of the evidence that show that the statement is sufficiently reliable to
    allow its consideration as evidence without the benefit of cross-examination of the
    witness. See, e.g., State v. Stamper, 
    863 S.W.2d 404
    , 406 (Tenn. 1993). This is true
    from a constitutional right to confrontation standpoint, as well. See Bourjaily v. United
    States, 
    483 U.S. 171
    , 175-76, 
    107 S. Ct. 2775
    , 2778 (1987). W ithout such proof by a
    preponderance of the evidence, the statement is inadmissible as hearsay and violative
    of the defendant’s right to confront the witnesses against her.
    The basic theory behind admission of a statement made for the purpose
    of medical diagnosis and treatment is that the “declarant’s motive of obtaining improved
    health increases the statement’s reliability and trustworthiness.” State v. Barone, 
    852 S.W.2d 216
    , 220 (Tenn. 1993). This means that the state was obligated in the present
    case to prove by a preponderance of the evidence that the three-year-old victim made
    the statement to the flight nurse for the purpose of medical diagnosis and treatment.
    However, I find nothing in the record to indicate that the victim possessed
    an awareness or comprehension level that would indicate in any fashion that his
    statement was given for the purpose of aiding in his ultimate diagnosis and treatment.
    In this respect, I do not believe that the necessary motive of the victim can be
    determined to exist simply because a motive to falsify has not been shown. If it were,
    then the burden would actually shift to the defendant to prove unreliability, because, in
    effect, the state would only have to prove that the victim made the statement to medical
    personnel and then we would presume it being for a medical purpose if no ill-motive
    were shown. In my opinion, absent an affirmative showing that the victim’s statement
    was motivated by his wanting medical help, it was not sufficiently reliable to be
    constitutionally admissible.
    Similarly, with the statement in the Chattanooga hospital room, I do not
    believe that the record suffices to justify the statement being admitted as an excited
    utterance. The victim’s grandmother testified that the victim was asleep when she first
    arrived at the Chattanooga hospital. The victim had been given morphine to cope with
    pain. His grandmother testified that she and the family “roused” him and that after he
    was moved to his room, the victim was talking to them. It was then that he was asked
    how he got into the bath tub and he replied, “Mommy put me in the water.” There is
    almost nothing in the record to show that the victim was “under the stress of
    excitement” that would reflect his reply to his father’s question to be an excited
    2
    utterance. See Tenn. R. Evid. 803(2). In fact, I believe that the evidence in the record
    preponderates against such a determination.
    However, the problem with the defendant’s position in this appeal is that
    she relies upon a record that is less than complete concerning the foregoing issues.
    This case involves a retrial after the first trial ended in a mistrial. At the first trial, the
    trial court admitted the statements in question into evidence after hearing testimony
    from various witnesses, including the flight nurse and the victim’s grandmother.
    At the beginning of the retrial, the parties discussed the issue of the
    statements’ admissibility and the trial court stated that it was incorporating its ruling
    from the last trial. When the witnesses testified during the trial about the victim’s
    statements, no further objection was made. As a practical measure, this means that
    the issue of admissibility was determined upon the foundation evidence presented at
    the first trial, not the retrial. However, we have before us only the evidence in the
    second trial.
    I note that the record before us contains the trial court’s specific rulings
    made in the first trial. However, the record does not include the testimony upon which
    those rulings were based. Under these circumstances, I cannot fault the prosecution
    for any shortcoming in its proof of the predicate facts that would normally be needed to
    allow for admission of the statements into evidence. Therefore, I concur in the results
    of the majority opinion.
    __________________________
    Joseph M. Tipton, Judge
    3
    

Document Info

Docket Number: 03C01-9608-CC-00310

Filed Date: 12/11/1997

Precedential Status: Precedential

Modified Date: 10/30/2014