Moore v. City of Leeds

• Decision Date: 01 February 2008
• Docket Number: CR-06-0760.
• Citation: 1 So.3d 145
• Parties: Jeffrey Scott MOORE v. CITY OF LEEDS.
• Court: Alabama Court of Criminal Appeals

1 So.3d 145

Jeffrey Scott MOORE v. CITY OF LEEDS.

CR-06-0760.

Court of Criminal Appeals of Alabama.

February 1, 2008.

Rehearing Denied April 11, 2008.

Maxwell H. Pulliam, Jr., Birmingham, for appellant.

Susan J. Walker, Birmingham, for appellee.

PER CURIAM.

The appellant, Jeffrey Scott Moore, appeals his convictions for domestic violence in the third degree based on the underlying offense of assault, see § 13A-6-132, Ala.Code 1975; harassment, see § 13A-11-8(a)(1)b., Ala.Code 1975; and harassing communications, see § 13A-11-8(b)(1), Ala.Code 1975. Moore was sentenced to one year in jail; that sentence was split and he was ordered to serve 90 days in jail and 2 years on probation. The trial court also ordered Moore to pay the medical bills incurred by the victim, his ex-wife, Karen Kelly, and to pay his child-support arrearage in full within six months of the date of the sentencing order.

The State's evidence tended to show the following: Moore and Kelly were married in May 2001; they separated in March 2003. After the separation, Moore lived in Florida and Kelly lived in Leeds with their daughter. On December 31, 2003, Moore verbally threatened Kelly. As a result of Moore's threat, Kelly obtained an order of protection.

On September 15, 2004, Moore went to Leeds to see Kelly and his daughter. Moore and Kelly left Kelly's daughter with a friend and were on their way to have dinner when they began arguing over financial matters. According to Kelly, Moore began calling her names and hit her on her left shoulder as he was driving her vehicle. Kelly told him to pull the car over and to get out. He kept driving, however, and the argument continued. Kelly said Moore hit her on her right thigh, her chest, and then hit her so hard in the face that "blood went everywhere." (R. 38.)

Steven Todd Huddleston testified that as he was driving in Leeds on the evening of September 15, 2004, he pulled up next to a sport utility vehicle, or SUV, and saw a person in the passenger seat trying to get his attention. When the SUV pulled away, Huddleston followed it. The SUV stopped in front of a house, and the passenger door opened. Huddleston identified Kelly as the individual who got out of the vehicle from the passenger side. Huddleston said that she had blood on her face. A man got out of the SUV on the driver's side and walked toward Huddleston. At trial, Huddleston identified the man as Moore. Huddleston said that he rolled his window down when Moore walked up to his truck. Moore told him that Kelly was his wife, that she had started a fight with him, and that he was leaving. He handed Huddleston Kelly's car keys, then got in his own car and drove away. Kelly telephoned the police to report the assault.

Huddleston also testified that when he spoke with Moore he did not see any blood or scratches on Moore and that Moore's shirt was not torn. Huddleston stayed with Kelly until the police arrived.

Meanwhile, Moore went to a friend's house in Hoover. The friend telephoned the police. Officer Smitty Avery of the Hoover Police Department responded to the call. He said when he saw Moore, Moore looked like he had been "in some sort of physical altercation." (R. 154.) The next day, Moore filed a domestic incident/offense report with the police. (R. 156.)

Kelly sustained a number of bruises and a broken nose as a result of the altercation with Moore. Dr. Ronald McCoy, an ear, nose, and throat specialist, testified that he treated Kelly in September 2004 for a broken nose. He said that Kelly's nose had been broken from left to right, which is consistent with Kelly's description of the altercation, in which she was sitting in the passenger seat of the car when she was hit by Moore, who was in the driver's seat.

In addition to evidence regarding the assault, Kelly also presented telephone bills that showed that between September 14, 2004, and October 29, 2004, Moore telephoned Kelly over 200 times. Kelly said during that same time, Moore left numerous threatening messages on her telephone-answering machine and he sent her several threatening text messages on her cell phone. Kelly notified the police of the threats. She testified that she felt frightened and intimidated by Moore.

Moore testified in his own defense. He denied having hit Kelly. He said that on the day of the alleged assault he and Kelly were going to dinner and he was driving. Kelly had been drinking, he said, and when he passed the restaurant Kelly hit him in the temple with her shoe. She attacked him, he said, trying to get control of the car. When he made an abrupt stop her head hit the steering wheel and bounced off the dashboard. That was how Kelly broke her nose, Moore said. He also testified that although he had made a lot of telephone calls to Kelly, some were made when Hurricane Ivan was about to hit the Gulf Coast; he testified that he never made any threats.

The jury convicted Moore of domestic violence based on the underlying offenses of assault, harassment, and harassing communications. This appeal followed.

I.

Moore contends that the trial court abused its discretion in allowing Dr. McCoy to testify as to what Kelly had told him when he was treating her broken nose. Specifically, he argues that the hearsay statement that Kelly made to Dr. McCoy, i.e., that her injury was caused as a result of an "altercation with her husband while they were driving," was not admissible under the medical-diagnosis hearsay exception in Rule 803(4), Ala. R.Evid. He asserts that the statement was not admissible because it did not concern the cause of her injuries but was a statement of fault and that statements of fault are not admissible under the medical-diagnosis exception recognized in Rule 803(4), Ala.R.Evid.

The admission of evidence under a hearsay exception is within the sound discretion of the trial court. See Lacy v. State, 673 So.2d 820, 825 (Ala.Crim.App. 1995) (and cases cited therein). Rule 803(4), Ala. R. Evid., provides that "[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," are exceptions to the general rule excluding hearsay testimony.

This Court, in Biles v. State, 715 So.2d 878, 887 (Ala.Crim.App.1997), explained the scope of this hearsay exception:

"Rule 803(4) permits `all statements serving reasonably as the basis of diagnosis or treatment ... [to be admitted] as substantive proof of the matter asserted.' Ala. R. Evid. 803(4), Advisory Committee's Notes. In determining whether a statement comes within this hearsay exception, courts have applied a `two-pronged test.' The first prong `is the requirement that the statement must be one upon which medical personnel reasonably rely in diagnosis and treatment. The second prong consists of a requirement that the declarant possess a motive which is consistent with the rule's underlying purpose ... [of] seeking diagnosis or treatment.' McElroy's Alabama Evidence § 261.02(4) (5th ed.1996)."

In Ex parte C.L.Y., 928 So.2d 1069 (Ala. 2005), the Alabama Supreme Court upheld the trial court's admission of a treating physician's testimony concerning statements made to him by a sexual-abuse victim regarding the identity of her abuser. The Supreme Court stated:

"K.H. also made statements to a treating physician in the emergency room while she was being treated following the sexual abuse. When the doctor asked her if she had ever been touched inappropriately, K.H. stated that C.L.Y. had pulled off her panties while they were in an automobile and had rubbed her vaginal area and had put lotion on her. These statements are admissible under the exception to the hearsay rule set out in Rule 803(4), Ala. R. Evid., for `Statements for Purposes of Medical Diagnosis or Treatment.' Although statements indicating fault normally do not qualify for this hearsay exception, in cases of sexual abuse where the identity of the perpetrator is related to the treatment of the emotional and psychological injuries suffered by the victim, such statements regarding identity can fall within this exception to the hearsay rule. See Moore v. C.F. (In re Moore), 165 B.R. 495, 498-99 (M.D.Ala.1993)."

928 So.2d at 1073 (emphasis added). The case relied on by the Alabama Supreme Court, Moore v. C.F., 165 B.R. 495 (M.D.Ala.1993), stated:

"Admittedly, the advisory committee notes to Rule 803(4) provide that `Statements as to fault would not ordinarily qualify' as an exception to hearsay under the rule. The notes give as an example that `a patient's statement that he was struck by an automobile would qualify, but not his statement that the car was driven through a red light.' Fed. R.Evid. 803(4) advisory committee notes. Similarly, courts have held that statements as to identity do not ordinarily qualify as an exception. [United States v.] Iron Shell, 633 F.2d [77] at 84 [(8th Cir.1980)]. As the Eighth Circuit explained in [United States v.] Renville, [779 F.2d 430 (8th Cir.1985)].

"`Statements of identity seldom are made to promote effective treatment; the patient has no sincere desire to frankly account for fault because it is generally irrelevant to an anticipated course of treatment. Additionally, physicians rarely have any reason to rely on statements of identity in treating or diagnosing a patient. These statements are simply irrelevant in the calculus in devising a program of effective treatment.'

"779 F.2d at 436.

"However, as the Eighth Circuit further recognized, it is only `ordinarily' true that statements of fault and identity do not fall within Rule 803(4)'s hearsay exception for medical diagnosis and treatment. Renville, 779 F.2d at 436; see also Fed.R.Evid. 803(4) advisory committee notes (statements of fault `not ordinarily admissible'). `Sexual abuse of children at home presents a wholly...