Allen v. State

• Decision Date: 28 November 2000
• Docket Number: No. A00A0920.,A00A0920.
• Citation: 247 Ga. App. 10,543 S.E.2d 45
• Parties: ALLEN v. The STATE.
• Court: Georgia Court of Appeals

543 S.E.2d 45

247 Ga. App. 10

ALLEN v. The STATE.

No. A00A0920.

Court of Appeals of Georgia.

November 28, 2000.

Certiorari Denied May 7, 2001.

Steven H. Sadow, Atlanta, for appellant.

David McDade, Dist. Atty., William H. McClain, Asst. Dist. Atty., for appellee.

PHIPPS, Judge.

A jury found Robert Howard Allen guilty of four counts of cruelty to children and one count of aggravated battery. He was sentenced to serve 20 years concurrently on all counts. He appeals, claiming that the trial court erred by admitting certain hearsay statements and excluding others and by refusing to charge the jury on the lesser included offenses of reckless conduct and battery. Finding no harmful error, we affirm.

On March 19, 1998, Allen and his wife brought K.J., a six-year-old girl, to the Cobb General Hospital emergency room. She was treated by Dr. Michael Gilhully, who noted that she had a large bite mark and bruise on her cheek, several other bruises on her face, large bruises on her buttocks, and a very tender abdomen. Dr. Gilhully testified that he asked Allen, K.J.'s uncle, what had happened to her. Allen told him that K.J. had had a seizure and that he had put his fingers inside her mouth and was bitten. He said that to free his fingers, he bit K.J. on the cheek. Allen also told the doctor that he thought he had spanked her too hard and caused the bruises on her buttocks. A CT scan of K.J.'s abdomen revealed that she had severe internal injuries. Her liver and spleen were lacerated, causing disruption of the blood supply and ultimately necrosis of part of her liver. K.J.'s condition was determined to be life-threatening, and she was transferred to Scottish Rite Children's Hospital for further treatment.

Dr. Gilhully was skeptical of Allen's version of the events because there was no indication that K.J. had suffered a seizure. Based on the bite marks on her face, the massive internal injuries, the multiple bruises on her buttocks that went far beyond what the doctor would normally associate with routine discipline, the other bruises on her body, and the doctor's skepticism about the seizure explanation, emergency room personnel decided to contact the police.

The State introduced the opinion testimony of several witnesses as to the cause of K.J.'s internal injuries. Dr. Gilhully expressed his medical opinion that the injuries were caused by a significant blunt trauma blow to the abdomen. Dr. Charles Frankum, who provided treatment to K.J. at Scottish Rite, testified that a liver injury that severe would be consistent with a high-speed motor vehicle accident and could have been caused only by a very severe blow to the abdominal cavity. Dr. Mark Stovroff, a pediatric surgeon who treated K.J. at Scottish Rite, testified that it would take a tremendous amount of force to cause such an injury. Neither Dr. Frankum nor Dr. Stovroff believed that the injuries could have been caused by an adult stepping on K.J. by accident.

At trial, Allen testified as follows: K.J. had come to live with him, his wife, and three children in late June 1997. In March 1998, he decided to spank K.J. because she had told him for three days in a row that she had not behaved properly at school. He spanked K.J. with a belt and caused the bruises on her buttocks. He originally intended to hit her only three times on the buttocks, but she moved when he tried to hit her, which frustrated him, and he ended up hitting her more times than he intended and on her thigh as well as her buttocks. He admitted that he hit her too hard.

With respect to K.J.'s internal injuries, Allen explained that he and K.J. were outside at night while he was feeding the family dog. He heard K.J. fall and went toward her, tripped over a briar, and stepped on her. Then he picked her up and carried her toward the house. As he got close to the house, her eyes rolled back in her head, and it looked like she was choking on her tongue. He put his finger in her mouth to make sure she could breathe, and she bit it. To free his hand to open the door, he bit her on the cheek. K.J. began vomiting when they got inside so Allen took her to the bathroom, where she fell and hit her chin on the toilet. Then Allen and his wife took K.J. to the hospital. Allen never told the doctors treating K.J. or the investigators that he had accidentally stepped on her.

Allen was charged with cruelty to children in the first degree for maliciously causing K.J. excessive physical pain by repeatedly spanking her (Count 1), biting her in the face (Count 2), and hitting her in the stomach (Count 3). He was charged with aggravated assault for maliciously causing bodily harm to K.J. and disfiguring her body by causing her liver and spleen to be torn (Count 4). Finally, Allen was charged with cruelty to children in the first degree for maliciously causing K.J. excessive mental pain by repeatedly spanking her (Count 5).

1. Allen contends that the trial court committed harmful error by admitting out-of-court statements K.J. made to her licensed professional counselor under the medical diagnosis or treatment exception to the hearsay rule. He claims that the statements were not reasonably pertinent to the diagnosis or treatment of K.J.

In November 1997, K.J. was referred to Margaret Brown (a licensed professional counselor) to be treated for past sexual abuse, anxiety related to a change in her residence, self-injurious behavior, and sleep disturbances. Allen called Brown as a witness, and she testified about K.J.'s problems and her treatment of K.J. During direct examination, Allen's counsel elicited numerous hearsay statements to which there were no objections. On cross-examination, the State sought to introduce a statement that K.J. had made to Brown on May 26, 1998. K.J. had told her that she did not want to go back to her aunt's house because she did not want to go back to the hospital. She had said that Allen had stomped on her and pushed her into the mud, taken her inside, and later had taken her to the hospital.

Prior to introducing the statement, the State sought a ruling from the court as to its admissibility. The court allowed both parties extensive argument on this issue and allowed them to question Brown, outside the presence of the jury, about the significance of the statement to K.J.'s treatment. Brown testified that part of K.J.'s therapy was her acknowledgment of the bad things that had happened to her and how they made her feel so that she could appropriately deal with them. She testified that the statement was pertinent to K.J.'s ongoing counseling and that it was important information needed to treat K.J. Based on Brown's testimony, the trial court found that the statement was pertinent to K.J.'s treatment and was admissible, but did not allow Brown to mention Allen's name.

We review the trial court's admission of K.J.'s statement under the abuse of discretion standard.¹

Pursuant to OCGA § 24-3-4,

[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or 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 or treatment shall be admissible in evidence.

The history a patient gives to a psychologist,² nurse,³ pediatrician,⁴ or emergency room physician⁵ during examination or treatment has been held admissible under this exception to the hearsay rule. We find that the same rule is applicable when such information is given to a licensed professional counselor. Based on Brown's testimony, we find that the trial court did not abuse its discretion by admitting K.J.'s statement as reasonably pertinent to her treatment.

2. Without invoking the child hearsay statute,⁶ Allen sought to impeach K.J.'s hearsay statement to Brown with two prior inconsistent statements K.J. made to Douglas County Sheriff's Investigator Wilson. The State did not object to the admission of the statements, but argued that it should be allowed to introduce consistent statements made by K.J. to Investigator Wilson. The court ruled that neither the prior inconsistent nor the prior consistent statements would be admissible absent compliance with the child hearsay statute. Allen claims that the trial court committed harmful error.

Although there appears to be no Georgia precedent for allowing impeachment of a hearsay declarant whose statements have been admitted into evidence under the medical diagnosis or treatment exception, Georgia appellate courts have allowed impeachment of dying declarations⁷ and statements admitted as part of the res gestae.⁸ In Smith v. State,⁹ the Supreme Court of Georgia stated that impeachment of hearsay admitted through the excited utterance and necessity exceptions ordinarily should be permitted. The medical diagnosis or treatment exception to the hearsay rule is "based upon the inherent trustworthiness of medical information given by a patient to a medical provider, in view of the patient's strong motivation to be truthful during diagnosis and treatment."¹⁰ Because the statement is hearsay, the credibility of the declarant cannot be attacked on cross-examination. "Impeachment, therefore, is the only method by which a party can attack the credibility of the hearsay declarant and, thus, the accuracy of the statement."¹¹ We hold that a party must be given the opportunity to impeach the credibility of a declarant whose statement is admitted under the medical diagnosis or treatment exception to the hearsay rule. As noted in Brantley and Smith, our ruling is consistent with Federal Rule of Evidence 806, which allows the impeachment of a hearsay declarant with any evidence that would be admissible for impeachment purposes if the declarant had testified as a witness.¹²

We find that the trial court erred by refusing to allow Allen to introduce, without invoking the child hearsay statute, the prior inconsistent...