              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT KNOXVILLE                     FILED
                             FEBRUARY 1997 SESSION
                                                                  December 11, 1997

                                                                   Cecil Crowson, Jr.
                                                                   Appellate C ourt Clerk
STATE OF TENNESSEE,                )
                                   )
              Appellee,            )      No. 03C01-9608-CC-00310
                                   )
                                   )      Bledsoe County
v.                                 )
                                   )      Honorable J. Curtis Smith, Judge
                                   )
TRACEY PENDERGRASS,                )      (Aggravated child abuse)
                                   )
              Appellant.           )



                                CONCURRING OPINION



              I concur in the results reached by the majority opinion. However, I

question whether the record before us justifies admitting either the victim’s statement to

the flight nurse as one made for the purposes of medical diagnosis and treatment or the

victim’s statement in the Chattanooga hospital as an excited utterance.



              When the state seeks to submit a statement by a nontestifying witness

into evidence in a criminal case, it has the burden to prove the predicate facts by a

preponderance of the evidence that show that the statement is sufficiently reliable to

allow its consideration as evidence without the benefit of cross-examination of the

witness. See, e.g., State v. Stamper, 863 S.W.2d 404, 406 (Tenn. 1993). This is true

from a constitutional right to confrontation standpoint, as well. See Bourjaily v. United

States, 483 U.S. 171, 175-76, 107 S. Ct. 2775, 2778 (1987). W ithout such proof by a

preponderance of the evidence, the statement is inadmissible as hearsay and violative

of the defendant’s right to confront the witnesses against her.
              The basic theory behind admission of a statement made for the purpose

of medical diagnosis and treatment is that the “declarant’s motive of obtaining improved

health increases the statement’s reliability and trustworthiness.” State v. Barone, 852

S.W.2d 216, 220 (Tenn. 1993). This means that the state was obligated in the present

case to prove by a preponderance of the evidence that the three-year-old victim made

the statement to the flight nurse for the purpose of medical diagnosis and treatment.



              However, I find nothing in the record to indicate that the victim possessed

an awareness or comprehension level that would indicate in any fashion that his

statement was given for the purpose of aiding in his ultimate diagnosis and treatment.

In this respect, I do not believe that the necessary motive of the victim can be

determined to exist simply because a motive to falsify has not been shown. If it were,

then the burden would actually shift to the defendant to prove unreliability, because, in

effect, the state would only have to prove that the victim made the statement to medical

personnel and then we would presume it being for a medical purpose if no ill-motive

were shown. In my opinion, absent an affirmative showing that the victim’s statement

was motivated by his wanting medical help, it was not sufficiently reliable to be

constitutionally admissible.



              Similarly, with the statement in the Chattanooga hospital room, I do not

believe that the record suffices to justify the statement being admitted as an excited

utterance. The victim’s grandmother testified that the victim was asleep when she first

arrived at the Chattanooga hospital. The victim had been given morphine to cope with

pain. His grandmother testified that she and the family “roused” him and that after he

was moved to his room, the victim was talking to them. It was then that he was asked

how he got into the bath tub and he replied, “Mommy put me in the water.” There is

almost nothing in the record to show that the victim was “under the stress of

excitement” that would reflect his reply to his father’s question to be an excited



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utterance. See Tenn. R. Evid. 803(2). In fact, I believe that the evidence in the record

preponderates against such a determination.



                However, the problem with the defendant’s position in this appeal is that

she relies upon a record that is less than complete concerning the foregoing issues.

This case involves a retrial after the first trial ended in a mistrial. At the first trial, the

trial court admitted the statements in question into evidence after hearing testimony

from various witnesses, including the flight nurse and the victim’s grandmother.



                At the beginning of the retrial, the parties discussed the issue of the

statements’ admissibility and the trial court stated that it was incorporating its ruling

from the last trial. When the witnesses testified during the trial about the victim’s

statements, no further objection was made. As a practical measure, this means that

the issue of admissibility was determined upon the foundation evidence presented at

the first trial, not the retrial. However, we have before us only the evidence in the

second trial.



                I note that the record before us contains the trial court’s specific rulings

made in the first trial. However, the record does not include the testimony upon which

those rulings were based. Under these circumstances, I cannot fault the prosecution

for any shortcoming in its proof of the predicate facts that would normally be needed to

allow for admission of the statements into evidence. Therefore, I concur in the results

of the majority opinion.



                                                             __________________________
                                                             Joseph M. Tipton, Judge




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