State v. Barone

CourtSupreme Court of Tennessee
Citation852 S.W.2d 216,38 A.L.R.5th 897
Decision Date01 March 1993
PartiesSTATE of Tennessee, Appellant, v. Michael BARONE, Appellee.

Charles W. Burson, Atty. Gen. and Reporter, and Debra K. Inglis, Asst. Atty. Gen., Nashville, for appellant.

David L. Raybin, Edward M. Yarbrough, Hollins, Wagster & Yarbrough, P.C., Nashville, for appellee.


ANDERSON, Justice.

We granted this application for appeal in order to determine whether the thirteenth juror rule was applicable in this case and to decide two other issues of first impression, namely, the right of a defendant to a physical examination of the complaining witness and the admissibility of a psychologist's testimony under Tenn.R.Evid. 803(4) as to statements made by the complainant.

Michael Scott Barone was convicted of two counts of aggravated rape, and one count of aggravated sexual battery of his minor daughter, M.B., and was sentenced to fifteen years on each count of aggravated rape, and eight years on the aggravated sexual battery. The defendant appealed, contending that the trial judge should have applied the thirteenth juror rule and granted him a new trial based upon the weight of the evidence. The defendant also argued that the trial court erred in denying his motion for an independent physical examination of the complainant by a medical expert, and by admitting into evidence a licensed psychologist's testimony about the complainant's statements to him in his professional capacity. The Court of Criminal Appeals reversed and remanded for a new trial on the grounds that the trial court erred both in admitting into evidence the psychologist's testimony, and in refusing the defendant's request for an independent physical examination. The Court of Criminal Appeals also held that the thirteenth juror rule had been abolished by the Supreme Court, and that they had no power to reinstate the rule.

We agree with the Court of Criminal Appeals that a new trial should be granted. We also agree that the trial court erred in admitting the psychologist's testimony under Tenn.R.Evid. 803(4), as to statements made by the complainant. We do not agree, however, that the trial court erred in refusing the defendant's motion for an independent physical examination of the complainant. Finally, we conclude that the thirteenth juror rule, which has now been reinstated by this Court and the General Assembly, is applicable to this case because it was pending on direct appeal at the time the thirteenth juror rule became effective. Based on the foregoing, the result reached by the Court of Criminal Appeals in reversing the convictions and remanding for a new trial is affirmed, upon the separate grounds stated.


Prior to 1978, it was well-established in Tennessee that a trial judge in a criminal case functioned as the thirteenth juror and weighed the evidence before approving a verdict of guilty. State v. Johnson, 692 S.W.2d 412 (Tenn.1985). The leading case of Curran v. State, 157 Tenn. 7, 4 S.W.2d 957 (1928), stated the rule:

[U]nder our system, (a) the trial court exercises the function of a thirteenth juror; (b) that he must weigh the evidence, pass upon the issues, and decide whether they are supported by the evidence; (c) where he fails to do this the case will be reversed and remanded for a new trial; and (d) "that he must be satisfied, as well as the jury" (meaning, in a criminal case, satisfied that the defendant is guilty).

Id., 157 Tenn. at 13, 4 S.W.2d at 958.

In 1978, the U.S. Supreme Court held in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), that principles of double jeopardy preclude a retrial of a defendant once a reviewing court has found the evidence to be legally insufficient to support his or her conviction. That holding was applied to state proceedings in Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). In response to those decisions, this Court abandoned the thirteenth juror rule in criminal cases. See State v. Cabbage, 571 S.W.2d 832 (Tenn.1978). After that decision, the U.S. Supreme Court clarified the holding of Burks by stating that a retrial after a reversal based upon the weight, rather than the legal sufficiency of the evidence, does not constitute double jeopardy. Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). After Tibbs, the constitutionality of the thirteenth juror rule was clearly established, but a majority of this Court chose not to reinstate the rule in State v. Johnson, supra, because they felt that the weight-of-evidence standard would be difficult to apply rationally and uniformly in criminal cases. However, two members of this Court dissented and commented that "[t]his rule may be the only safeguard available against a miscarriage of justice by the jury." Id., 692 S.W.2d at 415 (Drowota, J., and Fones, J., dissenting). See also State v. Adkins, 786 S.W.2d 642 (Tenn.1990).

This Court reconsidered the issue upon the favorable recommendation of the Advisory Commission on the Tennessee Rules of Criminal Procedure. Thereafter, we promulgated an amendment to Tenn.R.Crim.P. 33, which was approved by the General Assembly and became effective on July 1, 1991, and was applicable to all cases tried on and after that date. The amendment provided:

New trial where verdict is against the weight of the evidence.--The trial court may grant a new trial following a verdict of guilty if it disagrees with the jury about the weight of the evidence. If the trial court grants a new trial because the verdict is contrary to the weight of the evidence, upon request of either party the new trial shall be conducted by a different judge.

Returning to the facts of this case, the defendant acknowledged in his motion for a new trial that the thirteenth juror rule had been abolished in Tennessee, but in anticipation of it being reactivated, asked the trial court judge to act as the thirteenth juror and grant him a new trial because the weight of the evidence did not establish the defendant's guilt beyond a reasonable doubt. In ruling on the motion, the trial court judge commented:

Let me tell you, honestly, my answer to that question. Do I, the Judge, believe that the proof in this case, my opinion, establishes proof beyond a reasonable doubt? The answer to that question is, no. In listening to the proof and the evidence in this case, I would have resolved it differently. The proof indicated to me that while there was evidence that Mr. Barone was guilty of this offense, it did not convince me, the Judge, beyond a reasonable doubt that he was guilty. Having said that, it is also obvious that I would grant a motion for a new trial if I had that power, which I don't.

Clearly, the trial judge would have applied the thirteenth juror rule if it had been in existence at the time of the trial and would have granted the defendant a new trial.

In State v. Enochs, 823 S.W.2d 539 (Tenn.1991), we held that the thirteenth juror rule applies to all cases which were pending on direct review at the time the rule was reinstated and became effective. Because this case was pending on direct appeal when the 1991 Amendment restoring the thirteenth juror rule became effective, and because the issue has been properly preserved on appeal, the rule applies. Accordingly, for this reason alone, the convictions must be reversed, and the case remanded for a new trial.


In this issue of first impression, the trial court held that the testimony of a psychologist as to the complaining witness's statements came within the hearsay exception of Rule 803(4) of the Tennessee Rules of Evidence because the statements were made for the purpose of medical diagnosis and treatment. The Court of Criminal Appeals reversed, holding that a statement made to a psychologist is not made for the purpose of medical diagnosis and treatment because the rule is limited to statements of physical condition made to medical doctors, and therefore, it does not include statements of psychological condition made to a psychologist.

M.B., the complaining witness was referred by her civil attorney to Jay Woodman, a licensed psychologist, approximately six months after the defendant's arrest, because of the death of the child's previous psychologist. The referral occurred at a time when both civil and criminal proceedings were pending against the defendant.

Before Woodman testified in the presence of the jury, the trial judge conducted a jury-out hearing to determine the nature and admissibility of his testimony. At the hearing, Woodman stated that his sessions with M.B. were for the purposes of both medical diagnosis and treatment. He stated that M.B., although only three years old when she began seeing him, understood that she came to him for treatment, and that he was there "to help her and to try to help her cope with some of [the] things that bother her." He said that in the course of the treatment, while at times drawing, coloring, or playing, M.B. had told him that the defendant had touched her private parts with both his hand and his penis. The trial court ruled that Woodman could testify to the statements made to him by the complainant under Tenn.R.Evid. 803(4), which provides:

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.

(Emphasis added.) The trial judge relied upon two federal cases for his conclusion that Woodman's status as a licensed psychologist did not defeat admissibility under the rule. See Morgan v. Foretich, 846 F.2d 941 (4th Cir.1988); United States v. DeNoyer, 811 F.2d 436 (8th Cir.1987). The Court of Criminal Appeals' opinion relied on the...

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