         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                  November 16, 2004 Session

             STATE OF TENNESSEE v. BARRY WAYNE DUNHAM

                      Appeal from the Criminal Court for Macon County
                                No. 97-71 J. O. Bond, Judge



                     No. M2003-02802-CCA-R3-CD - Filed March 1, 2005



JOSEPH M. TIPTON, J., dissenting.

        I concur in most of the reasoning and results reached in the majority opinion. I respectfully
disagree, though, with the conclusion that Dr. Goetting was not qualified to testify as an expert in
this parent-child homicide case. The trial court excluded her testimony because it was the first time
she had testified in such a case, she was a sociologist, and she relied on facts that were not in
evidence. It concluded that her testimony would not be a substantial help to the jury.

        As the majority opinion concedes, Dr. Goetting’s testifying in a case of patricide for the first
time and relying on information not in evidence did not justify excluding her testimony. The fact
that she was a sociologist also would not justify her being barred from testifying.

         However, the majority opinion questions the relevance and reliability of Dr. Goetting’s
testimony. It states that neither she nor the defense offered evidence regarding Dr. Paul Mones’
qualifications or whether her correlation between battered wives who kill husbands and battered
children who kill parents was commonly recognized and accepted among professionals in her field.
This view ignores Dr. Goetting’s own testimony. She said that she had extensively studied women
who had killed their husband’s “in self-defense” relative to physical and psychological views and
that she had published her research with peer review. She had not personally studied children who
killed their parents, but she had read the works of Paul Mones, who she indicated was the lead expert
regarding such children. She said there was a “lot of similarity between the two” because they
involve cases “where hierarchical relationships go out of control and end in violence” with
relationships progressing in intensity and fear. She said that from the information that accumulates
from the work she, Paul Mones, and other people have done, they build a model based upon
“hundreds and hundreds of studies.” Given the model, an interview of the client determines whether
the client fits the model. Neither the state nor the trial court questioned Dr. Goetting about the
various matters of concern in the majority opinion. I believe her testimony provided sufficient
justification for the correlation she drew between battered wives and battered children. As for the
majority opinion’s concern regarding no evidence about Paul Mones’ qualifications, Dr. Goetting
indicated that he was the lead expert in the country regarding battered children. Nothing in the
record reflects that the trial court discredited her testimony.

        Finally, the majority opinion concludes that the evidence did not reflect that the defendant
met the recognized definition of a person suffering from “battered child syndrome.” I disagree. Dr.
Goetting recounted a history of events which the defendant experienced or about which the
defendant was aware. She testified that although the defendant was older, his stroke rendered him
more childlike and dependent. She said that he would have nowhere to go. She said he fit the
model. I believe sufficient evidence was presented to allow the jury to hear from Dr. Goetting. In
this regard, any lack of a prolonged pattern of abuse would go to the weight of her testimony, not its
admissibility. I would reverse the conviction and remand the case for a new trial.



                                                       ____________________________________
                                                       JOSEPH M. TIPTON, JUDGE




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