State v. Kendricks

• Decision Date: 05 December 1994
• Citation: 891 S.W.2d 597
• Parties: STATE of Tennessee, Appellant, v. Cornelius KENDRICKS, Appellee.
• Court: Tennessee Supreme Court

Page 597

891 S.W.2d 597

STATE of Tennessee, Appellant, v. Cornelius KENDRICKS, Appellee.

Supreme Court of Tennessee at Knoxville.

Dec. 5, 1994.

Charles W. Burson, Atty. Gen. & Reporter, John B. Nisbet, III, Asst. Atty. Gen., Nashville, for appellant.

William B. Mitchell Carter, Carter, Mabee, Paris & Fields, Chattanooga, for appellee.

BIRCH, Justice.

The Criminal Court of Hamilton County entered judgment convicting Cornelius Kendricks, the defendant, of aggravated rape ¹ and aggravated kidnapping. ² Finding that certain of the victim's statements had been erroneously admitted into evidence as "fresh complaints," the Court of Criminal Appeals reversed the convictions. We granted the State's application for review pursuant to Tenn.R.App.P. 11 to determine whether the intermediate court correctly applied the doctrine of "fresh complaint" and to examine and clarify that doctrine as it applies in cases where an adult is the victim of a sexual crime.

The judgment of the Court of Criminal Appeals is affirmed as modified.

I

The record establishes that Brenda Derrick worked for a produce company in Chattanooga. As she was walking to work at approximately 9:30 p.m., June 15, 1989, the defendant, a man she later identified as Cornelius Kendricks, pulled up beside her in his truck and offered her a ride. Although she had not been previously acquainted with him, she accepted his offer and climbed into the truck.

Pretending that his destination was the home of a friend, the defendant drove instead to a remote industrial area. When the defendant stopped the truck, Derrick jumped out in an effort to escape. He caught up with her and forced her, at gunpoint, back into the truck. While still wielding the gun, the defendant ordered her to perform oral sex; Derrick complied.

After this, the defendant drove a short distance to a residential neighborhood, threw Derrick from the truck, and drove away. Derrick ran to a nearby house and asked Lula Jones, who responded to her knock, to use the bathroom. When Derrick returned from the bathroom, she told her that she had been raped. She asked Jones to call the police; she did so immediately.

Officer Marcus Easley of the Chattanooga Police Department responded to the call. Derrick told Easley what had happened; he incorporated her story into a standard incident report prepared at 10:47 p.m. Easley then drove Derrick back to the scene where Detective Larry Swafford awaited them. Swafford talked with Derrick and recorded her statement at 11:12 p.m. In that statement, Derrick related that she had been picked up by a man in a white truck whom she had seen many times before. She said also that the man had drawn a gun on her, ripped her blouse and bra, and forced her to perform oral sex.

Approximately six months later, Derrick espied Kendricks next to his truck at a local gasoline station. She noted the license tag number and gave it to the police. Kendricks was subsequently apprehended and charged pursuant to Derrick's accusations.

II

The controversy in this case concerns the admissibility of two statements made by Derrick to investigating officers shortly after the incident. ³ The first statement introduced was given to Swafford and was recorded on tape. The statement, given some forty minutes or so after the incident, was in question-answer form--Swafford's questions and Derrick's answers. When the statement was admitted into evidence, Derrick had not testified. The defendant objected to the admission of the statement on hearsay grounds. The trial court, explaining that the statement constituted a "fresh complaint," permitted the jury to listen to the tape and allowed a written copy to be provided to each juror. Additionally, the trial court instructed the jurors that the statement had been admitted "to corroborate Derrick's testimony."

The second statement was introduced as follows: At the conclusion of Kendricks' proof, the State called Easley as a rebuttal witness. He identified the incident report he prepared at Jones' house. Upon the State's motion, the trial court admitted the incident report into evidence "as a 'fresh complaint' to counter the defendant's efforts to impeach Derrick."

Kendricks testified in his own behalf. He acknowledged that the act of fellatio occurred as Derrick described it, but he insisted that Derrick had agreed to perform the sexual act for money--an act of prostitution, in other words. He stated that Derrick became irate when he refused to pay her the amount initially agreed upon.

As stated, the jury convicted Kendricks of aggravated kidnapping and aggravated rape, and the trial court approved the verdict. Kendricks appealed of right to the Court of Criminal Appeals. Among the issues he raised was whether the trial court erred in admitting the tape recorded statement and the incident report under the "fresh complaint" doctrine. The Court of Criminal Appeals considered these two contentions, inter alia, and reversed the convictions based upon its analysis of the "fresh complaint" doctrine.

In its analysis, the court acknowledged that Tennessee law permits a complaint made by a rape victim to a third person soon after the incident to be admitted as evidence-in-chief for the purpose of corroborating the victim's trial testimony. The court also cited cases holding that a delayed complaint may be admitted as long as the delay is reasonably explained. After synthesizing the case law regarding the "fresh complaint" doctrine, the court determined that a "totality of circumstances" test had evolved for assessing the reasonableness of the delay in making the complaint. Included in this test, the court wrote, are factors such as (1) the age and mental capacity of the victim, (2) the nature and strength of any threats made toward the victim by the perpetrator, and (3) the spontaneity of the complaint.

Both the incident report and the tape recorded statement were taken within an hour of the incident. At first glance, both statements would appear to meet the traditional requirements for admissibility under the "fresh complaint" doctrine. Nevertheless, the court held that the trial court had committed reversible error by admitting the statements. The court explained:

[T]he information elicited by Officer Easley does not [qualify as "fresh complaint" evidence]. Neither does the taped interview by Detective Swafford or its transcription. The victim's statements were not spontaneously made. Through the investigative process, the victim was asked to reflect upon the encounter, recall its details, and make a statement for the record. Although the complaint was "fresh" in that the delay between the incident and the victim's statement to the police was relatively short, it is our view that its lack of spontaneity disqualifies the evidence.

The State of Tennessee applied for permission to appeal. As stated previously, we granted that application in order to review that decision and to clarify the "fresh complaint" doctrine in Tennessee as it applies to adult victims.

III

A threshold issue that we must determine preliminarily is whether the doctrine of "fresh complaint" has survived the adoption of the Tennessee Rules of Evidence. Although "fresh complaint" is not expressly addressed in the Rules, Rule 101 states that the "rules shall govern evidence rulings in all trial courts of Tennessee except as otherwise provided by statute or rules of the Supreme Court of Tennessee." Rule 402 provides that "relevant evidence is admissible...." We find that evidence which corroborates a victim's testimony does tend to make the existence of a consequential fact "more probable" within the meaning of Rule 401 and is therefore relevant and admissible under Rule 402. Under the circumstances, we hold, therefore, that the doctrine of "fresh complaint," as herein modified, has indeed survived the adoption of the Tennessee Rules of Evidence.

Fresh complaint evidence is highly unusual in the sense that such evidence is neither purely substantive nor purely rehabilitative. Actually, it exhibits characteristics of both. ⁴ Because this class of evidence does not fit neatly into the familiar categories of evidence law, it will facilitate our discussion to briefly trace its evolution from common law origins.

The "fresh complaint" doctrine in rape cases has ancient origins. The doctrine evolved from the early common-law requirement of "hue and cry," whereby female victims of violent crimes were expected to cry out immediately after the commission of the crime to alert their neighbors that they had been assaulted. The original purpose of this requirement was to facilitate the capture of the wrongdoer. 2 F. Pollock & F. Maitland, The History of the English Law Before the Time of Edward I 578-79 (2d ed. 1923); State v. Hill, 121 N.J. 150, 578 A.2d 370, 374 (1990). A consequence of "hue and cry" was that should the victim fail to cry out, the assumption was that she had been somehow implicated, and the state was not allowed to prosecute the wrongdoer. ⁵ Pollock & Maitland, 578-79; Hill, 578 A.2d at 374. However, the "hue and cry" requirement was limited to rape cases, and only those females who had complained immediately were eligible to have their cases prosecuted. Because it proved ineffective as a means of facilitating the capture of perpetrators, the literal "hue and cry" requirement obsolesced, so that women who did not immediately complain were no longer categorically prohibited from prosecuting their cases. 1 L. Radzinowicz, A History of English Criminal Law 27 (1956).

The courts continued, however, to assume in these cases that any "normal" woman would report a rape soon after its occurrence. The clear implication of this assumption was that if the woman did not complain, it was likely that no rape had occurred. See Dawn M. DuBois, A Matter of Time: Evidence of a Victim's Prompt Complaint in New York, 53 Brooklyn L.Rev. 1087 (1988). Therefore, these courts allowed evidence...