Goldade v. State

• Decision Date: 12 December 1983
• Docket Number: No. 83-32,83-32
• Citation: 674 P.2d 721
• Parties: Christine GOLDADE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 721

674 P.2d 721

Christine GOLDADE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 83-32.

Supreme Court of Wyoming.

Dec. 12, 1983.

Rehearing Denied Jan. 3, 1984.

Gerald M. Gallivan, Director, Wyoming Defender Aid Program, Laramie, J. Michael Sharman, Student Intern, Wyoming Defender Aid Program, Laramie, and Sylvia L. Hackl, Public Defender, Cheyenne, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., and John W. Renneisen, Senior Asst. Atty. Gen., for appellee.

Before ROONEY, C.J., and RAPER, ^* THOMAS, ROSE and BROWN, JJ.

THOMAS, Justice.

Are statements which identify an abuser made by a child victim to a nurse and a physician admissible in evidence under the exception to the hearsay rule articulated in Rule 803(4), W.R.E.? This is the essential question presented in this appeal, although an attack also is made upon the reliability of the statements. The district court, in a trial to the court, ruled that such statements could be received in evidence, and they were received. The appellant was found guilty by the court of child abuse in violation of § 14-3-101(a)(ii), W.S.1977, and she was sentenced to a term of six months in the county jail and a fine of $500 in accordance with the provisions of § 14-3-103(a), W.S.1977. ¹ The imposition of the sentence and fine were suspended, and the appellant was placed on probation for one year. This appeal is from that judgment and sentence. We shall affirm the trial court.

In her brief the appellant states the issues as follows:

"I. MAY A HEARSAY STATEMENT MADE BY A FOUR YEAR OLD OUT OF COURT DECLARANT BE ADMITTED UNDER THE W.R.E. 803(4) 'TREATMENT AND DIAGNOSIS' EXCEPTION WHEN THE STATEMENT ATTRIBUTES FAULT AND BLAME AND IS NOT PERTINENT TO THE TREATMENT OR DIAGNOSIS?

"II. MAY A HEARSAY STATEMENT BE ADMITTED FOR ANY PURPOSE, WHEN, UNDER THE CIRCUMSTANCES OF THE CASE, THE STATEMENT LACKS TRADITIONAL GUARANTEES OF RELIABILITY?"

The State of Wyoming has submitted a counter-statement of the issues in this case as follows:

"I. UNDER W.R.E. 803(4), DID THE TRIAL COURT ERR IN ADMITTING THE TESTIMONY OF A DOCTOR AND A NURSE CONCERNING SEPARATE OUT-OF-COURT STATEMENTS MADE BY THE VICTIM, TABATHA GOLDADE, DURING HER PHYSICAL EXAMINATION WHERE THE STATEMENTS CONCERNED THE CAUSE OF HER BRUISES, AND WERE REASONABLY PERTINENT TO TREATMENT AND DIAGNOSIS?

"II. IF THE STATEMENTS OF THE CHILD WERE OTHERWISE WITHIN THE SCOPE OF W.R.E. 803(4) AS EXCEPTIONS TO THE HEARSAY RULE, DID THE UNAVAILABILITY OF THE CHILD AT TRIAL THROUGH INCOMPETENCY TO TESTIFY ALTER THE ADMISSIBILITY OF HER STATEMENTS TO THE DOCTOR AND NURSE?

"III. IF A STATEMENT IS PROPERLY ADMISSIBLE AS AN EXCEPTION TO THE HERSAY [sic] RULE, DO INDIVIDUAL CIRCUMSTANCES WHICH MAY INDICATE UNRELIABILITY GO TO THE ADMISSIBILITY OF THE STATEMENT OR MERELY TO ITS WEIGHT AND CREDIBILITY?

"IV. IF IT WAS ERROR TO ADMIT THE VICTIM'S OUT-OF-COURT STATEMENTS TO THE DOCTOR AND NURSE, WAS SUCH ERROR NONETHELESS HARMLESS?"

On August 13, 1982, the Campbell County Department of Public Assistance and Social Services (D-PASS) received a telephone call about possible child abuse involving Tabatha Goldade who then was four and one-half years old. A social worker in the D-PASS office went to the appellant's home accompanied by a deputy sheriff. Initially the social worker observed bruises on Tabatha's face which had been covered with makeup. Further visual examination disclosed bruises on other parts of Tabatha's body, and the social worker decided that the child should be examined by a physician. This was done, and the doctor in his testimony stated that there were "a lot of bruises on Tabatha." Photographs which were admitted into evidence showed bruises on Tabatha's back, chest, stomach, legs, arms and face. It was determined that these bruises were not serious injuries, although Tabatha was hospitalized for several days for observation. The doctor testified that in his opinion, which was based on the results of tests during hospitalization, Tabatha did not "tend to bruise more easily than the average, healthy child." The doctor, in his opinion, ruled out illness, childhood play and home accidents as causes of these bruises and stated that the bruises were the product of child abuse.

The record further discloses that Tabatha Goldade, together with a younger brother and a younger sister, had been residing with the appellant and her husband for the nine months preceding August 13, 1982. These three children were the natural children of Mr. Goldade's brother and his former wife. When the natural parents were divorced the mother had been found to be unfit to have custody of the children. Appellant and her husband then had accepted the children into their home at the request of the husband's brother. The appellant and her husband had talked with the same social worker for Campbell County D-PASS about adopting Tabatha and the other two children. Some paper work relating to the proposed adoption already had been accomplished. The social worker testified that he had heard Tabatha allude to the appellant as "Mommy," and there is no dispute with respect to the proposition that when Tabatha referred to "Mommy" or "Mother" she was referring to the appellant.

Tabatha Goldade was called as a witness by the State. She could not respond to questions, however, presumably because of shyness and awe. The district judge ruled that she was not a competent witness. Her testimony, therefore, was not available to the State.

The critical testimony which is in issue in this case came from the nurse who was on duty in the emergency room at Campbell County Hospital when Tabatha Goldade was brought there by the deputy sheriff and the social worker, and from a physician who specialized in pediatrics and who was called to the emergency room at the Campbell County Hospital to examine Tabatha. The testimony of the nurse is as follows:

"Q. Okay. During that time did you ask Tabatha any questions?

"A. Yes.

"Q. What was that?

"A. I did ask her how she had gotten these injuries.

"Q. And did you get a reply?

"A. Yes."

Following an appropriate objection by counsel for the appellant and argument, the transcript continues:

"THE COURT: Well, the court will overrule the objection. She may answer this question.

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"Q. Mrs. Ullrich, did you ask the little girl in question some questions?

"A. Yes. I did ask her how she incurred these injuries.

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"Q. * * * Did you get a reply to that question?

"A. Yes, I did.

"Q. What was that?

"A. That her mother had done it.

"THE COURT: Now, ma'am, would you tell us as closely as possible the exact words used. That's what counsel means when he asks you to answer, not a conclusion that you made from what was said, but you state what you asked this child as closely as possible and what her reply was as closely as possible.

"A. (By Mrs. Ullrich) I did ask her how she received these--I can't remember if I used the term bruises or what I said to her because of her age, and she did reply, 'my mommy did it.' "

The critical testimony of the physician with respect to the same subject is as follows:

"Q. In your examination of this child did you have occasion to ask her any questions?

"A. Yes, I did.

"Q. What were those questions?

"A. I asked her how the bruises that were seen on her, how they had occurred.

"Q. Did you get a response?

"A. Yes."

Following a consistent objection and ruling by the district court, the testimony continued:

"Q. * * * Could you tell us what that response was, Doctor?

"A. As I recall, She told me that her--she said, 'my mother beat me.' "

During cross-examination of the physician, the following testimony was elicited:

"Q. Okay. And when you went in to see Tabatha Goldade then you asked her where she got the bruises?

"A. During the course of the examination I asked her that question.

"Q. And she told you that, 'my mommy beat me'?

"A. I think she used the word 'mother.'

"Q. Okay. Mother?

"A. Uh-huh.

"Q. Are you aware of who the natural mother of this child is?

"A. I'm aware that Mrs. Goldade is not the natural mother, but I don't where--I don't know the natural mother.

"Q. All right. Did you question the child any further than that concerning those injuries?

"A. I don't think I did, no."

The district judge, following the trial, entered Findings and Order of Court in which the court specifically found:

"4. That the testimony of the doctor and the nurse as to the four year olds [sic] statement was admitted as a proper exception to Rule 803(4) of the Wyoming Rules of Evidence as an exception to hearsay."

The appellant, relying upon authority from other jurisdictions, argues most strenuously that this ruling by the district court was erroneous, and that her conviction should be reversed.

Rule 803, W.R.E., provides in pertinent part as follows:

"The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

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"(4) Statements for purposes of medical diagnosis or treatment.--Statements 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."

We have no quarrel with the general rule that statements attributing fault usually are not admissible under rules identical to Rule 803(4), W.R.E. See United States v. Iron Shell, 633 F.2d 77, 55 A.L.R.Fed. 664 (8th Cir.1980), cert. denied 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 (1981); United States v. Nick, 604 F.2d 1199 (9th Cir.1979); United States v. Narcisco, 446 F.Supp. 252 (E.D.Mich.1977); and 4 Louisell and Mueller, Federal Evidence, § 444, p. 603 (1980). If the goal of our court were simply to pursue the common-law tradition of stare decisis, then the cited authorities must be recognized as supporting the position of the...