U.S. v. Tome
| Decision Date | 31 July 1995 |
| Docket Number | No. 92-2104,92-2104 |
| Parties | 42 Fed. R. Evid. Serv. 699 UNITED STATES of America, Plaintiff-Appellee, v. Matthew Wayne TOME, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Joseph W. Gandert, Asst. Federal Public Defender, Albuquerque, N.M., for appellant.
Louis M. Fischer, Atty. Dept. of Justice, Washington, DC (John J. Kelly, U.S. Atty., D.N.M., with him on the brief) for appellee.
Before ANDERSON, TACHA, and HOLLOWAY, Circuit Judges.
A jury convicted defendant Matthew Wayne Tome of aggravated sexual abuse in violation of 18 U.S.C. Secs. 1153, 2241(c), and 2246(2)(A) and (B). 1 In his appeal to this court, defendant challenged the admissibility of the hearsay statements relayed by six witnesses. Each witness related out-of-court statements made by the child victim (A.T.). We concluded that the testimony of these witnesses was admissible because it was not hearsay under the Federal Rules of Evidence and affirmed defendant's conviction. United States v. Tome, 3 F.3d 342, 347 (10th Cir.1993), rev'd, --- U.S. ----, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995). We reasoned that the government offered the testimony of these six witnesses to rebut defendant's implied charge that the victim fabricated her allegations. Id. at 349. Consequently, we held that, even though A.T. made the statements after her alleged motive to fabricate had arisen, the statements were prior consistent statements admissible under Fed.R.Evid. 801(d)(1)(B). Id. at 351.
The United States Supreme Court reversed our decision. Tome v. United States, --- U.S. ----, ----, 115 S.Ct. 696, 705, 130 L.Ed.2d 574 (1995). Specifically, the Court held that Rule 801(d)(1)(B) "permits the introduction of a declarant's consistent out-of-court statements to rebut a charge of recent fabrication or improper influence or motive only when those statements were made before the charged recent fabrication or improper influence or motive." Id.
The case is now before us on remand. 2 Pursuant to our order, the parties have submitted supplemental briefs addressing the remaining issues. 3 On remand, we must first determine whether the challenged evidence could have been admitted under another rule of evidence. See Fortier v. Dona Anna Plaza Partners, 747 F.2d 1324, 1331 (10th Cir.1984) (). If we find that any of the statements were inadmissible, we must then assess whether the district court's error in admitting them was nevertheless harmless. See United States v. Flanagan, 34 F.3d 949, 955 (10th Cir.1994).
Evidentiary decisions rest within the sound discretion of the trial court, and we review those decisions only for an abuse of that discretion. United States v. Cestnik, 36 F.3d 904, 906 (10th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 1156, 130 L.Ed.2d 1113 (1994). Our review is especially deferential when the challenged ruling concerns the admissibility of evidence that is allegedly hearsay. Id. at 906-07. "Finally, we consider the record as a whole in reviewing evidentiary rulings." Id. at 907.
We first address the testimony of three pediatricians who examined A.T. In their testimony, the three doctors relayed statements made by A.T. either before or during the doctors' physical examinations of the child. At trial, the district court admitted the doctors' hearsay testimony under both Rules 801(d)(1)(B) and 803(4).
Although hearsay testimony is generally inadmissible, Fed.R.Evid. 802, the Federal Rules of Evidence contain a number of exceptions to the hearsay prohibition. See Fed.R.Evid. 803, 804. One of these exceptions, Rule 803(4), makes admissible "[s]tatements 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." Fed.R.Evid. 803(4). This exception is premised on the theory that a patient's statements to her physician are likely to be particularly reliable because the patient has a self-interested motive to be truthful: She knows that the efficacy of her medical treatment depends upon the accuracy of the information she provides to the doctor. United States v. Joe, 8 F.3d 1488, 1493 (10th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1236, 127 L.Ed.2d 579 (1994). Stated differently, "a statement made in the course of procuring medical services, where the declarant knows that a false statement may cause misdiagnosis or mistreatment carries special guarantees of credibility." White v. Illinois, 502 U.S. 346, 356, 112 S.Ct. 736, 743, 116 L.Ed.2d 848 (1992).
A declarant's statement to a physician that identifies the person responsible for the declarant's injuries is ordinarily inadmissible under Rule 803(4) because the assailant's identity is usually unnecessary either for accurate diagnosis or effective treatment. Joe, 8 F.3d at 1494. This court held in Joe, however, that a hearsay statement revealing the identity of a sexual abuser who is a member of the victim's family or household "is admissible under Rule 803(4) where the abuser has such an intimate relationship with the victim that the abuser's identity becomes 'reasonably pertinent' to the victim's proper treatment." Id. at 1495. In so holding, we reasoned that
[a]ll victims of domestic sexual abuse suffer emotional and psychological injuries, the exact nature and extent of which depend on the identity of the abuser. The physician generally must know who the abuser was in order to render proper treatment because the physician's treatment will necessarily differ when the abuser is a member of the victim's family or household. In the domestic sexual abuse case, for example, the treating physician may recommend special therapy or counseling and instruct the victim to remove herself from the dangerous environment by leaving the home and seeking shelter elsewhere.
Id. at 1494-95 (footnote omitted). Although the victim in Joe was an adult, we stated that "the identity of the abuser is reasonably pertinent in virtually every domestic sexual assault case," including those in which the victim is a child. Id. at 1494. Thus, when a victim of domestic sexual abuse identifies her assailant to her physician, the physician's recounting of the identification is admissible under Rule 803(4) when it is "reasonably pertinent" to the victim's treatment or diagnosis. Id. at 1495; see also John W. Strong et al., 2 McCormick on Evidence Sec. 277, at 248 (4th ed. 1992) (hereinafter McCormick ). After reviewing the testimony of each pediatrician, we conclude that A.T.'s statements to those doctors were reasonably pertinent to her diagnosis or treatment.
Kae Ecklebarger of Child Protection Services referred A.T. to Dr. Karen Kuper, a board certified pediatrician, for a physical examination. Kuper testified that she examined A.T. on two occasions, in September and October 1990. Prior to the first examination, Kuper interviewed A.T. Kuper testified that the purpose of the interview was "to ascertain exactly what injuries had occurred." In response to Kuper's questions, A.T. told Kuper about the sexual abuse, at times pointing to the appropriate areas of dolls to answer Kuper's questions. A.T. also identified defendant as her abuser. After the interview, Kuper performed a complete physical examination of A.T.
We find it clear that A.T.'s statement to Kuper was reasonably pertinent to Kuper's proper diagnosis and treatment of A.T. The information contained in the statement was important to Kuper's determination of A.T.'s condition. This statement was therefore admissible under Rule 803(4).
A.T. saw Dr. Laura Reich on September 21, 1990, for treatment of a skin rash in the vaginal area that was unrelated to any sexual abuse. At the time of Reich's examination of A.T., Reich was aware of the allegations of sexual abuse. Reich testified that, prior to conducting the physical examination, she asked A.T. several personal questions. One of these questions was whether "anybody had ever touched her in her private area." According to Reich's testimony, A.T. replied "that her father had put his thing in her." The remainder of Reich's testimony concerned her findings and conclusions from the physical examination.
Reich testified that the reason she had conducted a preexamination interview with A.T. was "that the child needs to be comfortable with me before I examine her." Because the adequacy of Reich's examination in part depended on the child's comfort with her, we find that A.T.'s statement was reasonably pertinent to Reich's diagnosis or treatment. It consequently was admissible under Rule 803(4).
Dr. Jean Spiegel, an assistant professor of pediatrics at the University of New Mexico, testified that she examined A.T. for the purpose of offering a second opinion as to whether the child had been sexually abused. Spiegel had extensive training in the area of child sexual abuse, and teaches other doctors how to examine children to detect molestation. Most of Spiegel's testimony focused on the technical aspects of her examination of A.T. and her conclusion that A.T. had experienced chronic vaginal penetration.
On redirect examination, Spiegel testified that A.T. told her where on her body she had been touched during the abuse. Spiegel did not ask, nor did A.T. volunteer, who had touched her. Clearly, A.T.'s statement regarding where she had been touched was pertinent to Spiegel's diagnosis of A.T. The district court therefore properly admitted the statement under Rule 803(4).
To continue reading
Request your trial
-
U.S. v. Pearson, No. 97-3268
... ... If they ask how you know it was 10:00 say the news came on while we were talking. Don't mention us talking about me coming over because I let them know I was at the studio until 2:45 a.m. But we did talk from about 9:50 until 10:10. I'm gonna call ... Snow, 82 F.3d 935, 940 (10th Cir. 1996) (quoting United ... Page 1263 ... States v. Tome, 61 F.3d 1446, 1455 (10th Cir. 1995)). When constitutional error is involved, "we must be persuaded that the error was harmless beyond a reasonable ... ...
-
United States v. Chavez
...prominently in the government's case militates in favor of holding that the error was not harmless. See, e.g. , United States v. Tome , 61 F.3d 1446, 1455 (10th Cir. 1995) (concluding that the improper admission of evidence was not harmless where that evidence "was extremely compelling"); S......
-
U.S. v. Charley, 98-2087
...143 L.Ed.2d 215 (1999). Harmless error analysis is not the same as insufficiency of the evidence analysis. 22 See United States v. Tome, 61 F.3d 1446, 1455 (10th Cir.1995) (stating that "[t]he question is not whether, omitting the inadmissible statements, the record contains sufficient evid......
-
U.S. v. Washington
...the true, illegal nature of the security work he was performing to a friend who was not involved in the conspiracy. See, e.g., Tome, 61 F.3d at 1453 (explaining that, in order to find the statement trustworthy, a court must find that the declarant of the prior statement "was particularly li......
-
The Residual Exception to the Hearsay Rule: the Complete Treatment
...627 P.2d 484 (Or. 1981). 154. United States v. Juvenile NB, 59 F.3d 771, 778 (8th Cir. 1995). On the facts of United States v. Tome, 61 F.3d 1446, 1453 (10th Cir. 1995), that court found that a child's statement to a caseworker for Child Protection Service did not fit under the residual exc......
-
The Residual Exception to the Hearsay Rule: the Complete Treatment
...627 P.2d 484 (Or. 1981). 154. United States v. Juvenile NB, 59 F.3d 771, 778 (8th Cir. 1995). On the facts of United States v. Tome, 61 F.3d 1446, 1453 (10th Cir. 1995), that court found that a child's statement to a caseworker for Child Protection Service did not fit under the residual exc......
-
An Accuser-obligation Approach to the Confrontation Clause
...52. 527 U.S. 116 (1999). 53. FED. R. EVID. 804(b)(3). 54. Lilly, 527 U.S. at 134. 55. Id. at 139. 56. See, e.g., United States v. Tome, 61 F.3d 1446 (10th Cir. 1995); United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980); see also White v. Illinois, 502 U.S. 346, 355 n.8 (1992) (hearsay ......