Helms, Matter of

• Decision Date: 23 September 1978
• Citation: 335 S.E.2d 917,77 N.C.App. 617
• Court: North Carolina Court of Appeals
• Parties: In the Matter of Michelle HELMS DOB:

Page 917

335 S.E.2d 917

77 N.C.App. 617

In the Matter of Michelle HELMS DOB: September 23, 1978.

Onslow County Department of Social Services, Petitioner,

Michael Helms (father of Michelle Helms), Respondent.

No. 854DC165.

Court of Appeals of North Carolina.

Nov. 5, 1985.

Cynthia L. McNeill and Edwin H. Blackwell, III, Jacksonville, for petitioner.

Popkin and Coxe by Jeffrey S. Fulk, New Bern, for respondent.

No brief by guardian ad litem for Michelle Helms.

JOHNSON, Judge.

The first issue we address is whether the court erred in allowing a witness for petitioner to testify from a prepared document. Respondent concedes that North Carolina law permits a witness to refresh his recollection by reviewing a writing or object, but he argues an insufficient foundation was laid to permit the witness to refresh her recollection from the writing because it was not established prior to the use of the writing that the witness could not remember the event, that the writing would refresh her memory, and that after reviewing the document, the witness could then remember the event. Since this action was tried after 1 July 1984, the North Carolina Rules of Evidence govern. 1983 Sess.Laws c. 701 s. 3; G.S. 8C-1 (Cum.Supp.1981). Rule 612(a) provides that if a witness, while testifying, uses a writing or object to refresh his memory, an adverse party is entitled to have the writing produced. Rule 612(c) further provides that the party entitled to have the writing produced is entitled to inspect the document, cross-examine the witness on the document, and introduce into evidence portions of the document which relate to the witness' testimony. In the present case, when counsel for petitioners sought to refresh the witness' recollection with a written document the witness had prepared, the court, upon respondent's objection to the use of the document, allowed the witness to review the document and then ordered it turned over to counsel for respondent. Counsel for respondent had the opportunity to cross-examine the witness but declined the opportunity. Although the better practice would have been for petitioner to lay a complete foundation, the failure to do so under the circumstances of this case did not amount to prejudicial error.

The next issue is whether the court erred in admitting testimony of witnesses as to statements the five year old child made to them regarding abusive acts by her father when the child did not testify. These statements were made to two babysitters, a social worker, a pediatrician, and a psychologist. Respondent contends these statements were inadmissible hearsay and did not qualify for any of the exceptions to the hearsay rule under Rule 803 or 804.

Petitioner contends that the statements made to the pediatrician and psychologist were admissible under Rule 803(4), which permits the admission of 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 agree. In the present case, the pediatrician testified that he examined the child on 30 July 1984 when she was brought in by her babysitters with regard to bruises and abrasions they had observed on the minor child and their concerns that the child had been sexually abused. Thus, any statements made by the child to him for purposes of diagnosis or treatment as to the genesis of her injuries were admissible. Likewise, the statements the child made to the psychologist for purposes of diagnosis or treatment were admissible. Although the child was originally referred to the psychologist for an examination by court order, the psychologist testified that he has had several treatment sessions with the child and that he is continuing to treat the child for her emotional problems.

Petitioner also contends that the statements made to the babysitters and social worker were admissible as excited utterances under Rule 803(2). Respondent argues that the excited utterance exception is inapplicable because the statement was not made "while the declarant was under the stress of excitement caused by the event or condition." The record is not clear as to when the alleged abuses occurred; thus, we cannot determine how long after the alleged abuses the child made the statements. We need not address the issue of whether the statements were made under the...