State v. Gordon

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

FOR PUBLICATION

Filed: September 29, 1997

STATE OF TENNESSEE, )
)
Appellee, ) DAVIDSON CRIMINAL
)
)
Vs. ) HON. WALTER C. KURTZ,
) JUDGE
)
MAURICE GORDON, )
)
Appellant. ) No. 01-S-01-9605-CC-00084

FILED
September 29, 1997
For Appellant: For Appellee:
Cecil W. Crowson
Jeffrey A. DeVasher Charles Burson Appellate Court Clerk
Senior Assistant Public Defender Attorney General & Reporter

Joan A. Lawson Michael E. Moore
Senior Assistant Public Defender Solicitor General

Ross Alderman Elizabeth T. Ryan
Deputy Public Defender Assistant Attorney General
Nashville, Tennessee Nashville, Tennessee

Victor S. Johnson, III
District Attorney General

Renee Erb
Bill Reed
Assistant District Attorneys General
Nashville, Tennessee

OPINION

AFFIRMED. ANDERSON, C.J.
 We granted this appeal to review two familiar exceptions to the rule which

excludes hearsay statements from a trial: statements relating to a startling event

or condition made while under the stress of excitement from the event or

condition; and statements made for the purpose of medical diagnosis and

treatment.

The defendant was convicted of aggravated rape. The trial court ruled

that statements made by the victim to her mother were excited utterances and,

therefore, admissible under Tenn. R. Evid. 803(2). The trial court also ruled that

the victim’s statements to a psychologist, which were contained in a report later

relied upon by a nurse practitioner, had been made for the purpose of medical

diagnosis and treatment and were, therefore, admissible under Tenn. R. Evid.

803(4). The Court of Criminal Appeals affirmed.

We have concluded that the trial court did not abuse its discretion in

admitting the victim’s statements to her mother as excited utterances. We have

also concluded that the State established the required foundation for the

admission of the victim’s statements to the psychologist pursuant to the medical

treatment and diagnosis exception. We, therefore, affirm the Court of Criminal

Appeals.

BACKGROUND

On May 13, 1991, the three-year-old victim was visiting with her maternal

grandparents, her sister, and the defendant (her uncle) at her grandparents’

house. Her grandparents and sister were watching television in the living room,

and the defendant was watching television in his bedroom.1 The victim had been

in and out of the defendant’s room. At one point, the victim went into the

1
A visiting cousin was also watching television in the defendant’s bedroom for at least part
of the evening.

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bathroom and cried out, apparently from pain she experienced when trying to

urinate. Her sister and grandmother attended to her; they looked at the victim’s

genitalia but saw nothing unusual.

The victim’s mother (the defendant’s sister) was called and she arrived to

take the victim and her sister home. After getting a bath, the victim again tried to

use the bathroom, and she again cried out from pain. Her mother wrapped her

in a towel, placed her on a bed, and saw “bits and tears and dried blood” on the

inside of the victim’s vaginal area. She asked the victim, “Who made you hurt

like this?” The victim initially lowered her head, but after further reassurance,

she named the defendant.

The victim was taken to two hospitals that same night, but she refused to

be examined. She was referred to Our Kids Clinic, a facility that evaluates cases

of suspected child sexual abuse, and was taken there the next morning. At the

clinic, the victim was interviewed by a psychologist who took a history containing

the victim’s statements. The history was used by a nurse practitioner who

conducted a physical examination of the victim. Although the psychologist did

not testify at trial, the nurse practitioner was permitted to read the interview2 into

evidence.

The nurse practitioner testified that the victim had two “breaks in the skin

inside the labia major but outside the vagina,” which were “very superficial.” She

said that the injuries were consistent with having been caused by the touch or

scrape of a finger, and that they appeared to have been caused within the past

twenty-four hours. She conceded that the injuries could have been caused in

some other manner.

2
The his tory itself was a lso introdu ced as an exh ibit.

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 The victim testified that she had been in the defendant’s room when he

pulled down her pants and touched her with his finger. The defendant testified

and denied the allegation. The defendant’s father (the victim’s grandfather)

testified that he, his wife, and the victim’s sister had been watching television in

the living room, and the defendant had been watching television in his bedroom.

The house was a small, single-story home with two bedrooms, a living room,

kitchen, and bathroom. The victim was in and out of the living room and the

defendant’s bedroom. The victim did not at first tell anyone that the defendant

had hurt her, and no one knew anything was wrong until the victim experienced

pain while trying to urinate.

The trial court admitted the victim’s statement to her mother as an excited

utterance under Tenn. R. Evid. 803(2), and the victim’s statements to the child

psychologist as statements for medical diagnosis and treatment under Tenn. R.

Evid. 803(4). The jury convicted the defendant and the judgment was affirmed

by the Court of Criminal Appeals. We granted this appeal and now affirm.

EXCITED UTTERANCE

Pursuant to Tenn. R. Evid. 803(2), statements “relating to a startling event

or condition made while the declarant is under the stress of excitement caused

by the event or condition” are admissible as an exception to the hearsay rule.

The rationale for admitting such statements, known as “excited utterances,” is

twofold:

First, since this exception applies to statements where it is likely
there was a lack of reflection-- and potential fabrication-- by a
declarant who spontaneously exclaims a statement in response to
an exciting event, there is little likelihood, in theory at least, of
insincerity. . . . Second, ordinarily the statement is made while the
memory of the event is still fresh in the declarant’s mind. This
means that the out-of-court statement about an event may be more
accurate than a much later in-court description of it.

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Cohen, Paine & Sheppeard, Tennessee Law of Evidence, § 803(2).1 at 532 (3d

ed. 1995). Thus, we review the requirements of the rule with this rationale in

mind.

First, there must be a startling event or condition. As noted in Tennessee

Law of Evidence, the “possibilities are endless” because “any event deemed

startling is sufficient.” Id., § 803(2).2 at 533. As another treatise has stated, the

“event must be sufficiently startling to suspend the normal, reflective thought

processes of the declarant.” McCormick on Evidence, § 297 at 854 (3d ed.

1984). Although the “startling event” is usually the act or transaction upon which

the legal controversy is based, such as an assault or accident, the exception is

not limited to statements arising directly from such events; rather, a subsequent

startling event or condition which is related to the prior event can produce an

excited utterance. See Bayne v. State, 632 A.2d 476 (Md. App. 1993)(and

cases cited therein).

In United States v. Napier, 518 F.2d 316 (9th Cir.), cert. denied, 423 U.S.

895 (1975), the victim was beaten and hospitalized. Upon returning home, she

saw a photograph of the defendant and said, “He killed me.” The Court held that

the statement was an excited utterance related to the startling event of seeing

the defendant’s picture. Id. at 318. Similarly, in State v. Carpenter, 773 S.W.2d

1 (Tenn. Crim. App. 1989), the victim’s statement occurred not when she

discovered a theft of money, but rather when the defendant returned to the

scene of the offense. The Court of Criminal Appeals determined that the victim’s

“comments resulted from the suspect’s return to the scene rather than the theft

itself” and that the statements were “so spontaneous as to embody all the

required elements of reliability.” Id. at 9; see also State v. Owens, 899 P.2d 833

(Wash. App. 1995), aff’d, 913 P.2d 366 (Wash. 1996); State v. Meyer, 694

S.W.2d 853 (Mo. App. 1985).

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 The second requirement, that the statement “relate to” the startling event

or condition, is likewise broad. As stated in Tennessee Law of Evidence, supra,

“considerable leeway is available,” because the statement “may describe all or

part of the event or condition, or deal with the effect or impact of that event or

condition.” Id., § 803(2).2 at 534.

The third requirement, that the statement be made while the declarant is

under the stress or excitement from the event or condition, relates most directly

to the underlying rationale for the exception. In State v. Smith, 857 S.W.2d 1, 9

(Tenn.), cert. denied, 510 U.S. 96 (1993), we said that “[t]he ultimate test is

spontaneity and logical relation to the main event and where an act or

declaration springs out of the transaction while the parties are still laboring under

the excitement and strain of the circumstances and at a time so near it as to

preclude the idea of deliberation and fabrication.” The time interval is but one

consideration in determining whether a statement was made under stress or

excitement:

Other relevant circumstances include the nature and seriousness
of the event or condition; the appearance, behavior, outlook, and
circumstances of the declarant, including such characteristics as
age and physical or mental condition; and the contents of the
statement itself, which may indicate the presence or absence of
stress.

Tennessee Law of Evidence, supra, § 803(2).2 at 534; see also State v. Smith,

868 S.W.2d 561, 574 (Tenn. 1993), cert. denied, 513 U.S. 960 (1994). 3 The

declarant does not have to be a participant in the startling event or condition, and

statements made in response to questions may still be admissible if the

declarant is under the excitement or stress of the event. See State v. Smith, 857

S.W.2d at 9.

3
Nearly every jurisdiction has likewise held that the time interval is not dispositive and that
other factors m ust be c onsider ed. See e.g., United States v. Rivera, 43 F.3d 1291, 1296 (9th Cir.
1995); Morgan v. Foretich, 846 F.2d 941, 947 (4th Cir. 1988); Gross v. Greer, 773 F.2 d 116, 12 0 (7th
Cir. 1985); United States v. Golden, 671 F.2 d 369 (1 0th Cir.), cert. denied, 456 U.S. 919 (1982);
Unite d Sta tes v. Boyd , 620 F.2 d 129 (6 th Cir.), cert. denied, 449 U.S . 855 (19 80).

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 Here, the trial court held a jury out hearing on the issue. The victim’s

mother testified that she gave the victim a bath shortly after arriving home from

her parents’ home. She left the victim to answer the phone and a moment later

heard the victim “hollering real loud.” She returned to the bathroom where she

found the victim on the toilet in “a lot of pain.” After placing the victim on the bed

and leaning her back, she saw “tears and dried blood up in the vagina.” She

asked the victim, “Who made you hurt like that?” The victim lowered her head,

but after being reassured, identified the defendant. This was approximately two

minutes after the victim had started hollering.

The trial court concluded that the statements were admissible under

Tenn. R. Evid. 803(2), after making the following findings:

I think it’s admissible . . . as an excited utterance. And I think the
startling event, really, is the injury to the child on the commode
when she was urinating at her mother’s house. . . . When the little
girl urinated, as her mother said, she was very upset, she hollered
and she cried. According to her mother’s testimony, she made the
statement [ ] in the bedroom two minutes after that. [A]lthough her
mother said she’d stopped crying, I think the two minute interval
between her crying on the commode and her statement was a
matter that still leads me to believe she was under the stress of
excitement. . . . I acknowledge it’s a close call here, but I believe
it’s admissible under 803(2).

The State contends, and the defendant concedes, that the pain

experienced by the victim while urinating, as opposed to the sexual offense itself,

constituted a startling event. The parties also agree that the victim’s statement

naming the defendant as the one who had hurt her was related to the startling

event. The parties dispute whether the victim was under the stress or strain of

this event when she identified the defendant. The defendant contends that the

victim’s statements were not made spontaneously, but rather, were made only

after a period of reticence, reflection and considerable prompting by her parents.

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 We agree that the victim’s painful urination was a sufficiently serious and

startling event under the rule. It was related to the sexual offense, and it

produced a separate cry of anguish from the victim, which, in turn, caused stress

or strain to the victim. Contrary to the defendant’s assertion, the record indicates

that the victim’s statements were made just a few minutes after the event, while

she was in obvious discomfort. Although the victim’s parents offered

reassurance and asked what had happened, the stress of the event had not

diminished and the time was short. In sum, we conclude that the trial court did

not abuse its discretion in finding that the statements were made after a startling

event, while the victim was under the stress of that event.

MEDICAL TREATMENT AND DIAGNOSIS

Statements made for the purpose of medical diagnosis and treatment may

be admissible as an exception to the hearsay rule under Tenn. R. Evid. 803(4):

Statements made for purposes of medical diagnosis and treatment
describing medical history; past or present symptoms, pain, or
sensations; or the inception or general character of the cause or
external source thereof insofar as reasonably pertinent to diagnosis
and treatment.

To be admissible, the statement must have been made for purpose of medical

diagnosis and treatment, describing medical history such as past or present

symptoms, pain, or sensation; and if the statement addresses the inception or

general character of the cause or external source of the problem, it must be

“reasonably pertinent to diagnosis and treatment.” State v. McLeod, 937 S.W.2d

867, 870 (Tenn. 1996). 4

The exception is predicated on the perception that statements made for

the purpose of medical diagnosis and treatment are reliable and trustworthy:

4
The issue in this case involves primarily the first prong of the rule. We have held, and the
defendant does n ot contes t, that a child’s statement identifying the perpetrator of a sexual offense
may be “re aso nab ly pertinent to diagnosis and treatment.” State v. Livingston, 907 S.W.2d 392, 397
(Tenn . 1995).

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 The rationale underlying the hearsay exception for statements
made for purposes of medical diagnosis and treatment is that the
declarant’s motive of obtaining improved health increases the
statements’s reliability and trustworthiness. This motivation is
considered stronger than the motivation to lie or shade the truth.
Patients generally go to doctors to receive treatment, and treatment
usually depends, in part, on what is said; thus the declarant has a
self-interested motive to tell the truth.

State v. Barone, 852 S.W.2d 216, 220 (Tenn. 1993); see also State v.

Livingston, 907 S.W.2d at 396 (“the declarant makes the statements for the

ultimate purpose of receiving proper diagnosis and treatment”).

As we recognized in McLeod, supra, however, the rationale for the

exception and its application become more troublesome when the declarant is a

child who, due to his or her age, may be unable to comprehend the medical

setting or to understand the need to provide accurate information. Id. at 870.

Our task in such cases is to “achieve a balance that fosters the important

governmental interest in protecting children while maintaining fundamental

fairness.” Id. at 869. Thus, rather than hold the exception inapplicable in child

sexual abuse cases, we said:

Courts should not presume that statements by a child to a medical
services provider are untrustworthy merely because there is
disputable evidence of the child’s motivation to be truthful. Rather,
the admissibility decision should be based upon a thorough
examination of all of the circumstances surrounding the statement.

Id. at 871. (Emphasis added). 5

5
This ap proach is consis tent with other jurisdictions which allow the child declarant’s motive
to be inferre d from circum stance s. United States v. Iron She ll, 633 F.2 d 77, 84 (8 th Cir. 198 0), cert.
denied, 450 U.S . 1001 (1 981); Dana v. Dept. of Correction, 958 F.2d 237, 239 (8th Cir.), cert. denied,
505 U.S. 122 5 (1992 ); Morgan v. Foretich, 846 F.2d 941, 949 (4th Cir. 1988). In contrast, some
jurisdictions have required that the child ha ve kno wledge of the m otive. See, e.g., United States v.
Barrett , 8 F.3d 1296 (8th C ir. 199 3)(“th ere m ust b e evid enc e tha t the c hild un ders tood the p hysic ian’s
role in order to trigg er the m otivation to pro vide truthfu l informa tion”); State v. Wade , 622 A.2d 832,
835-36 (N.H. 1993)(“The medical treatment exception applies whether the declarant is a child or an
adult, and the foundation for admissibility must include a showing that the child possessed the
requisite s tate of m ind.”).

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 Accordingly, in cases where the declarant is a child, numerous

considerations are relevant to determining the motivation for the statements,

including the timing and content of the statement, the presence or absence of

any improper influences placed on the child, whether the child’s statement was

made in response to leading or suggestive questioning, and any other factor that

may affect the trustworthiness of the statement. Upon an affirmative finding from

evidence in the record that the conditions of the rule are met, the statement is

admissible. Id. at 871.

In McLeod, the victim, age nine, was examined by a physician just a few

days after she had been abused. The physician testified that she took a medical

history for the purpose of her medical diagnosis and treatment, and the medical

history included the victim’s statement that she had been sexually penetrated by

the defendant. No one else was present during the examination, which revealed

that the victim had sustained injuries to her genitalia that were consistent with

vaginal penetration. We concluded from these circumstances that the victim’s

statements had been made for the purpose of medical diagnosis and treatment.

Id. at 872.

By contrast, in State v. Young, the companion case to McLeod, the eight-

year-old victim was examined by a physician over one month after allegations

surfaced that the defendant had fondled the victim. Although the doctor testified

that she evaluated the victim “for possible sexual abuse,” she conceded that she

did not expect to find physical evidence of fondling. The victim’s mother was

present during the examination, which had been arranged by the Department of

Human Services. We held that “these circumstances seem strongly to indicate

that the statements were not made for the purpose of medical diagnosis and

treatment as explicitly required by Rule 803(4).” Id. at 873.

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 Here, in a jury out proceeding, the nurse practitioner, Sue Ross, testified

that the clinic’s standard procedure is for a psychologist, social worker, or the

nurse practitioner to interview the child and obtain a history which is used in the

examination. The victim in this case was interviewed by a child psychologist.

Although Ross was not present during the interview and did not take a separate

medical history of her own, she relied upon the history taken by the psychologist.

The trial court found:

[T]he proof is that this young lady was taken to Memorial Hospital
almost immediately. She was then transported to . . . the
emergency room at General Hospital, where she spent several
hours, but couldn’t be examined, and then came back to Our Kids
Clinic the very next day. I think under the circumstances that I can
certainly draw an inference that this situation and her appearance
at Our Kids Clinic was for the purpose of medical diagnosis and
treatment, and that the [victim] wouldn’t think otherwise.

The defendant argues that there was no evidence to show that the victim

knew she was being interviewed for the purpose of medical diagnosis and

treatment or that she was aware of the need to provide truthful and accurate

information. The State maintains that the circumstances, specifically, that the

victim was injured, taken to the clinic less than a day after the incident, and still in

discomfort6 at the time of the interview, supported the trial court’s finding the

victim’s statement was made for medical diagnosis and treatment.7

We conclude that the evidence was sufficient to warrant an inference that

the conditions of Tenn. R. Evid. 803(4) were met. First, the victim cried out at

her grandparents’ home with pain on urination shortly after being alone with the

defendant. The victim’s mother was called; the victim was taken home and

bathed and again cried out from pain while trying to urinate. Her mother

6
The State refers to evidence that the victim had refrained from urinating due to the physical
pain.

7
The State also argues in support of a “pragm atic” approach that would remove the
dec laran t’s motive from the analysis and focus solely on whether the statements were relied upon by
the medical personnel. We rejected this in McLeod, 937 S.W .2d at 871 .

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examined her and observed evidence of injury inside the vagina. The victim

identified the defendant as the cause of the injury. The child was then

immediately taken about 9:00 p.m. to a hospital for treatment, then referred to

another hospital where she stayed until 3:00 a.m. She refused to be treated

because of the pain. She was referred for treatment to Our Kids Clinic, where

she went the next morning at 8:00 a.m. for examination. The victim gave a

history and was examined within twelve hours of the initial incident.

The nurse practitioner testified the purpose of the history was for proper

diagnosis and treatment, and that she relied on the history for that purpose. The

questioning by the psychologist was not suggestive or leading. The content of

the victim’s statement suggests no motive by the victim other than that of

seeking medical treatment. The physical examination revealed injury to the

vagina within the previous twenty-four hours. There was no evidence of

improper influence on the child, nor evidence of a motive inconsistent with

seeking medical treatment, nor evidence of any other factor affecting the victim’s

trustworthiness. No investigative agency had been involved to that point, and no

investigative referral had been made. The motive was to seek medical

treatment. Half the night was consumed in this continuing quest, which was

resumed early the following day.

As in McLeod, supra, the totality of these circumstances support an

inference that the victim’s motive in making the statements was for the purpose

of medical diagnosis and treatment. The trial court did not err in admitting the

statements into evidence.

CONCLUSION

We have determined that the trial court did not abuse its discretion in

ruling that the victim’s statements to her mother were “excited utterances” and

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admissible under Tenn. R. Evid. 803(2). We have further concluded, however,

that there was a sufficient foundation to show that the victim’s statements to the

child psychologist were made for the purpose of medical diagnosis and treatment

under Tenn. R. Evid. 803(4). Costs of appeal shall be paid by the defendant.

____________________________________
E. RILEY ANDERSON, CHIEF JUSTICE

Concur:

Drowota, Reid, Birch, and Holder, JJ.

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