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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State v. Gordon
Combined Opinion