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
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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
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