State v. Livingston
| Decision Date | 05 September 1995 |
| Citation | 907 S.W.2d 392 |
| Parties | STATE of Tennessee, Appellant, v. Jerrell C. LIVINGSTON. STATE of Tennessee, Appellee, v. Steve BUNDY, Appellant. STATE of Tennessee, Appellee, v. Johnny R. TILLEY, Appellant. STATE of Tennessee, Appellee, v. David JOHNSON, Appellant. |
| Court | Tennessee Supreme Court |
Charles W. Burson, Attorney General & Reporter, Merrilyn Feirman, C. Mark Fowler, Assistant Attorneys General, and Clinton J. Morgan, Special Assistant Attorney General, Nashville, for the State.
Michael E. Terry, Nashville, for Appellee Livingston.
Thomas Jay Norman, Nashville, for Appellant Bundy.
Richard W. DeBerry, Assistant District Public Defender, Camden, for Appellant Tilley.
Charles M. Corn, District Public Defender, Cleveland, for Appellant Johnson.
We accepted the application for review filed pursuant to Rule 11, Tenn.R.App.P., in these four cases in order to determine whether the fresh-complaint doctrine recently modified in State v. Kendricks 1 applies in cases wherein a child is the victim of abuse. For the reasons below appearing, we hold that the fresh-complaint doctrine does not apply in such cases.
As a related issue, one of the cases under submission (Livingston) presents an opportunity for us to clarify the circumstances under which statements made by a child victim of abuse to a physician are admissible under Rule 803(4), Tenn.R.Evid.
In Kendricks, this Court, in clarifying the application of the fresh-complaint doctrine to adult victims, held that the fact of the complaint--but not the details--is admissible during the State's case-in-chief. Attempts to discredit the victim may cause the details of the complaint to be admissible. Kendricks did not alter the rules regarding the admissibility of "prior consistent statements" or an "excited utterance," which remain admissible under separate requirements.
In Kendricks, we found that the fresh-complaint doctrine evolved from an expectation that a rape victim would make immediate outcry. Even though the validity of this expectation is flawed, the expectation persists. Thus, in Kendricks, we reluctantly retained the fresh-complaint doctrine despite ever-increasing data suggesting its obsolescence. We said:
We would certainly prefer to abolish the doctrine in its entirety, given its genesis in the profoundly sexist expectation that female victims of sexual crimes should respond in a prescribed manner or risk losing credibility. Even though psychologists have proved that victims respond to sexual attacks in no prescribed way, abolition of the doctrine would strip the victim of one of the few methods to rebut the expectation of outcry, now deeply rooted in our culture. So until the "presumption" that the victim's testimony is a fabrication disappears, we must retain the doctrine of "fresh complaint," at least as we have today modified it.
It appears that most courts which have discussed the application of the fresh-complaint doctrine to child victims have assumed that the doctrine applies to child victims of sexual abuse as it does to adult victims. See, e.g., Commonwealth v. Fleury, 417 Mass. 810, 632 N.E.2d 1230 (1994); Greenway v. State, 626 P.2d 1060 (Alaska 1980); State v. Hall, 88 Idaho 117, 397 P.2d 261 (1964); Woods v. State, 233 Ind. 320, 119 N.E.2d 558 (1954); State v. Calor, 585 A.2d 1385 (Me.1991); People v. Lawson, 34 Mich.App. 620, 192 N.W.2d 60 (1971); State v. Daniels, 222 Neb. 850, 388 N.W.2d 446 (1986). 2
However, those courts applying the doctrine to child sexual abuse cases have recognized that
[t]he cases involving child sexual abuse constitute a factually distinct branch of the fresh complaint doctrine that gives special consideration to the natural fear, ignorance, and susceptibility to intimidations that is unique to a young child's make-up.
Fleury, 632 N.E.2d at 1233 (citing Commonwealth v. Amirault, 404 Mass. 221, 535 N.E.2d 193, 199 (1989)).
Retention of the fresh-complaint doctrine in cases involving adult victims of sexual offenses furnishes no justification for extending the rule to cases involving child victims. The expectation that "normal" women will complain after a sexual offense, if ever applicable to anyone, is certainly not applicable to child victims of sexual offenses. As noted by the California Supreme Court in a recent case limiting the fresh-complaint doctrine:
[c]hild victims, in particular, commonly are reluctant to report such incidents and delay in doing so, or fail to provide a full report. Frequently, the child victim is unaware of the wrongful nature of the conduct or that what has occurred is not "normal." The victim also often experiences feelings of confusion and guilt, the desire to forget the incident, and the fear of not being believed, and in many instances may remain silent as a result of intimidation by the abuser.
People v. Brown, 8 Cal.4th 746, 35 Cal.Rptr.2d 407, 414, 883 P.2d 949, 956 (1994).
Further, unlike the presumptions regarding adult victims, juries do not necessarily presume that children fabricate, nor do they presume that a child will complain immediately. Having reluctantly retained the doctrine of fresh-complaint in the face of its many shortcomings in cases involving adult victims, we cannot reach the same result for child victims. The historic premises which supported our retention of the rule in adult victim cases simply do not support the application of the doctrine in child victim cases.
Further, we observe that evidence in the nature of fresh-complaint may be admissible as substantive evidence if it satisfies some hearsay exception 3 and as corroborative evidence if it satisfies the prior consistent statement rule.
We conclude, therefore, that no acceptable basis exists for stretching the fresh-complaint doctrine to the extent that it is applicable to cases involving child victims. Consequently, we hold that in cases where the victim is a child, neither the fact of the complaint nor the details of the complaint to a third party is admissible under the fresh-complaint doctrine.
A Davidson County jury convicted Jerrell C. Livingston, the defendant, of three counts of aggravated rape. The trial court imposed a Range I sentence of 20 years on each count, and ordered the sentences to be served consecutively for an effective sentence of 40 years.
In this case, the six-year-old victim confided to a schoolmate that she was having sexual encounters with her father. The schoolmate told his mother. She relayed the information to the victim's teacher; the teacher notified Faye Stewart, the school guidance counselor. The Court of Criminal Appeals described Stewart's interaction with the victim in the following manner:
Ms. Stewart, who had some training in handling problems such as this, questioned the victim about the incident. Over the objections of the defendant at trial, she testified that the victim said, The victim demonstrated on anatomically correct dolls and, at the counselor's request, showed how she performed the act by use of a "Blo Pop" candy. Upon further questioning, the victim was able to provide some rather graphic detail of the incidents. On each occasion, the act involved the victim performing fellatio at the direction of the defendant. Consistent with a pre-established policy, Ms. Stewart reported the incident to the school's principal and the Department of Human Services.
The Court of Criminal Appeals held that Stewart's testimony concerning the victim's sexual activity with her father did not qualify for admission as fresh-complaint evidence. Under the rule announced today, we reach the same conclusion.
In a second issue, the State contends that the Court of Criminal Appeals incorrectly construed Rule 803(4), Tenn.R.Evid., in excluding the testimony of the physician who examined the victim. Rule 803(4) provides as an exception to the Rule against hearsay, for the admission of:
Statements made for purposes of medical diagnosis and treatment describing medical history; past or present symptoms, pain, or sensations; or the inception of general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis and treatment.
Sara Hassell, M.D., a pediatric resident working at the Nashville General Hospital under the supervision of the Vanderbilt School of Medicine Residency Program, examined the victim. Although the results of the physical examination were inconclusive with regard to sexual abuse, the victim demonstrated on anatomically accurate dolls the sexual conduct in which she and the defendant participated.
The Court of Criminal Appeals found that the questions and answers relating to intrusion in any orifice were reasonably pertinent to medical diagnosis and treatment. Included, however, in Hassell's testimony was the following dialogue with the victim:
Q. Did you get mad when he made you do that?
A. No. I was glad and he was happy.
Q. Why were you glad?
A. Because I liked doing it, but the school won't let me do it anymore.
Q. Why did you like doing it?
A. Because it was fun.
* * * * * *
Q. What does he say?
A. Go faster, go faster, you'll make me feel good.
The Court of Criminal Appeals found that the above-quoted testimony did not meet the purposes or requirements of Rule 803(4) and concluded that its admission was, therefore, error.
The rationale for the medical diagnosis and treatment hearsay exception is that such declarations are deemed reliable because the declarant is motivated to tell the truth; that is, the declarant makes the statements for the ultimate purpose of receiving proper diagnosis and treatment. Generally, (1) the statement must be made for medical diagnosis and treatment; (2) the statement may include extensive information about symptoms, pain, or sensation; and (3) the...
To continue reading
Request your trial
-
State v. Martinez
...do not necessarily presume that children fabricate, nor do they presume that a child will complain immediately." State v. Livingston , 907 S.W.2d 392, 395 (Tenn. 1995). Massachusetts limited testimony "to that of one witness—the first person told of the assault" so as to "accomplish the pri......
-
State v. Sexton
...complaint” of being raped may not testify to the allegations by the child in a subsequent prosecution for that crime, State v. Livingston, 907 S.W.2d 392, 395 (Tenn.1995), individuals who hear such a complaint from an adult victim may testify for the limited purpose of corroborating the vic......
-
State v. Sexton
...complaint" of being raped may not testify to the allegations by the child in a subsequent prosecution for that crime, State v. Livingston, 907 S.W.2d 392, 395 (Tenn. 1995), individuals who hear such a complaint from an adult victim may testify for the limited purpose of corroborating the vi......
-
People v. Munch
...( Id. at p. 193.) The court's ruling that this invaded the jury's province is consistent with McAlpin . Moreover, in State v. Livingston (Tenn. 1995) 907 S.W.2d 392, 395, the Tennessee Supreme Court recognized that "child victims, in particular, commonly are reluctant to report such inciden......