State v. Williams

• Decision Date: 14 February 1980
• Citation: 598 S.W.2d 830
• Parties: STATE of Tennessee, Appellee, v. Marzell WILLIAMS, Jr., Appellant.
• Court: Tennessee Court of Criminal Appeals

Page 830

598 S.W.2d 830

STATE of Tennessee, Appellee, v. Marzell WILLIAMS, Jr., Appellant.

Court of Criminal Appeals of Tennessee, at Jackson.

Feb. 14, 1980.

Ural B. Adams, Jr., Shelby Co. Public Defender, Memphis, Walker Gwinn, Appellate Counsel, Asst. Public Defender, Public Defender's Office, John Hough, William B. Hackett, Asst. Public Defenders, Memphis, for appellant.

William M. Leech, Jr., State Atty. Gen., Charles L. Lewis, Asst. State Atty. Gen., Nashville, Hugh W. Stanton, Jr., Dist. Atty. Gen., Neil G. Taylor, Asst. Dist. Atty. Gen., Memphis, for appellee.

OPINION

BYERS, Judge.

The defendant was convicted of criminal sexual conduct in the third (3rd) degree and sentenced to serve not less than two (2) years nor more than five (5) years.

The defendant for issue says the evidence is insufficient to sustain the verdict and the testimony of the mother of the female victim and of the police officer who testified to what the female had told them was inadmissible because the victim did not testify.

The judgment is reversed and the case is remanded for a new trial.

On December 5, 1978, Belinda Greer, her husband, James Greer, and children, Helene Harris, Andre Greer, and Jimmy Greer, were living in an apartment in Memphis. Helene is James' step-child; and Andre and Jimmy are Belinda's step-children. Belinda and James worked during the daytime; and on December 5, 1978, the defendant was babysitting with Andre and Helene while Jimmy was attending school. Andre was four (4) and Helene was five (5). James, the father, returned home near 4:30 p. m. and Belinda, the mother, returned home shortly after 6:00 p. m. The defendant's babysitting duties ended when James returned home and he was not with the children after that time.

Shortly after Belinda arrived home, James left the apartment to go to the store. Helene then told the mother her bottom was hurting. Belinda examined the child and discovered an injury to her rectum. This was at approximately 6:30 p. m.

The police were called and came to the apartment.

An officer testified that at approximately 7:15 p. m. to 7:30 p. m. he found a tissue which this child had used to clean herself after she had been assaulted. He found it had fresh, damp blood on it.

The child was examined by medical personnel. Laboratory analysis of the evidence collected at the examination shows she was raped anally. In fact, there is no dispute in the evidence as to this.

The mother and the police officer were allowed to testify in detail as to what the child had told them of the assault and also that she identified the defendant as the one who did it.

Helene did not testify because the trial judge ruled she was unable to understand right from wrong and the nature and obligation of an oath. The defendant testified he did not sexually assault the child.

The evidence against the defendant, with the exception of the testimony of Helene's recitation, was wholly circumstantial. Applying the rules on appeal to this evidence, we find it is sufficient to support a finding of guilt. However, we are of the opinion the introduction of Helene's statement through the testimony of her mother and the police officer was erroneous and are unable to say this did not cause the jury to find the defendant guilty.

The historic rule in Tennessee, for allowing a third person to testify as to a fresh complaint from the victim of a sexual attack, is to allow such testimony, as an exception to the hearsay rule, in corroboration of the victim's testimony. Phillips v. State, 28 Tenn. 246 (1848); Klaver v. State, 503 S.W.2d 946 (Tenn.Crim.App.1973). In Phillips, the basis for introduction of this type testimony was set out:

"(P)roof of the particulars of the complaint made by the injured party cannot be admitted as original evidence to prove the truth of the statements, or to establish the charge made against the prisoner, because not made in his presence, and, likewise, because the ordinary tests which the law has provided for the ascertainment of truth are wanting, viz., the sanction of a judicial oath, and the opportunity for cross-examination. . . . Such evidence is only admissible in confirmation of the witness, or to repel the presumption that her statement is a fabrication."

"(I)t is only in cases where the person injured is called and examined as a witness that evidence either of her complaint in general terms or of her detail of the circumstances and particulars of the transaction can be admitted." 28 Tenn. at 249, 250-251

Clearly the introduction of the child's complaint under the corroboration rule was erroneous.

The State contends this evidence should be admissible under the "fresh complaint rule," which allows admission of the complaint as original evidence even in the absence of the victim's testimony. This view has not been adopted in Tennessee and it is the State's insistence such should now be done.

From the examination of the treatment of this subject in 157 A.L.R. 1359; 75 C.J.S. § 53, p. 525; Wharton's Criminal Evidence, Vol. 2, § 313 (13th Ed. 1972); and various cases therein relied on, we find there is a split in authority on this proposition.

However, the prevailing view is that when the victim is incompetent because of age or other factors, a witness may testify that a complaint was made to the witness by the victim in crimes of this nature. However, the details of the complaint and declarations made by the victim are inadmissible. The witness may testify only that a complaint was made. Particulars of the complaint, especially those details incriminating the accused, are inadmissible.

We agree with the State that a...