*1 say I that Chief Justice statements, matter of am authorized perhaps as a those opinion. joins REID in this ignorance of strategy, likely more but possibility their contents. It is this latter lead this Court to hold that
that should request
trial court’s denial of counsel’s
a recess or a reasonable time to review the 26.2(d) Rule constitutes
statements under
reversible error.
Finally, emphasized that the it must be majority’s calculation defense counsel Tennessee, STATE “study in which to and reflect had 22 hours Appellee, Appellant/ April pretrial statements of Ward” witnesses) (and purely some 20 other is BALLARD, Lucindy illusory. fails Frances It to take into account Appellee/Appellant. time, period fact that almost half this hours, spent during nine court Tennessee, Supreme provision course of the trial. It makes no at Jackson. travel, for two hours of for time that the May attorney spent consulting his col- with client, leagues and his for time devoted to
planning strategy day trial for the next
(including argument), opening or for a rea- period
sonable of time for rest and suste- majority
nance. The trial and a apparently expect
this court defense coun-
sel to be able to cross-examination (notes investigator
from notes taken lawyer investigator may
which the and the discuss)
not have had a chance to while actually in progress.
trial is Had the attor-
ney voluntarily done what he was forced case,
to do the trial court in this there
can be little doubt that he would be charge incompetency
to a and found to
have rendered ineffective assistance of
counsel—much like the attorney in United Hinton, supra,
States v. opted who to re-
view a witness’s statement while direct ex- being
amination that witness was con-
ducted. physical demands trial, attorney especially
on an a criminal offense, involving capital heavy. expectations placed on defense cоunsel unrealistic, completely this case were they deprivation resulted of due
process respect to his client. For the above,
reasons set out I dissent from the
majority’s decision to affirm the defen-
dant’s conviction in this case. *2 aggra- eventually tried on 16 counts aggravated battery rape
vated against 11 children. The trial lasted and culminated with Ms. over six weeks *3 single on count of Ballard’s conviction aggravated battery against one of sexual the children. parties present following issues
The for review: (1) Ap- Whether the Court of Criminal peals reversing erred in the defendant’s on conviction based the State’s “destruc- pretrial videotape tion” of interviews of alleged some of the victims. (2) Ap- Whether the Court Criminal peals ruling erred in that the trial court granted should hаve the defendant’s mo- independent tion for an evaluation of the victim.
(3) competency Whether the of the vic- testify properly tim to was determined by the trial court. Burson, Atty. Charles W. Report- Gen. & (4) Whether the trial court committed er, Bettye Springfield-Carter, Atty. Asst. prejudicial by permitting chil- error Gen., Gen., Joel Perry, Atty. W. Asst. testify by videotape. dren to Nashville, appellant. (5) Whether the trial court erred al- Kaufman, Marti L. Memphis, appel- lowing testify State witnesses to lee. regarding post-traumatic stress disorder. Herbison, John E. Rebecca Freeman and Appeals of Criminal reversed Dawson, Nashville, Donald E. for amicus and remanded Ms. Bаllard’s conviction curiae Tennessee Ass’n of Crim. Defense issue The court determined that Lawyers. willfully pre- State erased number of the videotape alleged interviews of the tapes victims before the could be viewed OPINION Ap- defendant. Court of Criminal
O’BRIEN, Justice. peals determined that State’s actions presеnts appeals This ease by both the were calculated to circumvent Rule 26.2 of defendant, State of Tennessee and the the Tennessee Rules of Criminal Procedure Ballard, Frances judgment by intentionally withholding discoverable Court of Appeals reversing Criminal Ms. evidence from the defendant. aggravated Bаllard’s conviction of sexual' general applied test to be battery upon a minor. appellate improper prosecutorial review of In June Lucindy Frances Ballard conduct is whether such conduct could have charges arrested on of child sexual affected the prejudice verdict to the abuse. She was subsequently indicted on State, Harrington defendant. v. aggravated rape 19 counts of and 19 counts (1965); Judge Tenn. v. aggravated battery involving 19 State, (Tenn.Cr.App.1976). different children. All the children listed Mason, one of the Rebecca Richardson in the indictment were enrolled the Geor- investigated members of а task force who gian Day Hills Memphis Care Center in this case testified that she and other task between 1983 and 1984 where Ms. Ballard force members were instructed an assis part-time was a employee. Ms. attorney Ballard tant district narratives tape cy testify judge recorded interviews with the child should determine tapes viсtims and then reuse the of the whether the child understands the nature meaning oath, interviews of these children so of an has the intelli- tapes discovery gence would not be available for understand the matter of testimony, the defense. testified that in initial capable She and is relating interviews, accurately. Fears, some of the children would the facts nothing happened state that had and would S.W.2d 370 subsequently change these statements. Although the trial did not The Court of Criminal found that requirements follow verbatim the in State did deny attorney State not that the Fears, supra he did determine general’s office issued such instructions. *4 appreciated that the child the difference tapes These discovery were to after between truth and falsehood and that the witnesses testified. It was held that promised child during ques to tell the truth the State not use witnesses whose tioning. purpose determining The com taped initial interviews were and intention- petency in of the witness сhild sexual ally destroyed by investigators. the State if testify abuse cases allow a victim to is to The court held that on retrial the trial it can be determined that the child under judge hearing should first conduct to telling necessity stands the the truth competent determine which witnesses were interview, while on the witness stand. testify. agree We аre inclined to although ideally, have conduct could been regard. the view of the in lower court greater depth, substantially ed in con second issue set out requirements necessary formed to the State’s brief is that “the evidence in the competency establish the of a child witness support record does not the Court of Crimi and demonstrated that the child understood Appeals nal conclusion that trial court importance telling the truth. erred in denying the defendant’s motion for by The next issues are raised two independent an evaluation of the victim.” the defendant. In her first issue the defen This previously presented issue was on in by dant erred contends that the court Ballard, terlocutory appeal. State v. granting videotape the State’s motion to S.W.2d 284 In that testimony. the children’s The defendant case the Court of Criminal held videotaped testimony vio asserts that the granting that the trial erred right lates her Sixth Amendment to con independent motion рsychological eval frontation under the United States Consti alleged uation of the child victims that right tution and the to “face to face” con presented compelling defendant had no rea frontation under the Tennessee Constitu son to it allow where the victims had al tion, I, have Article Section 9. We ready by competent been experts evaluated transcripts searched the record find no ample and defendant would an oppor have separate hearings of the three the defen tunity to cross-examine at trial. On the dant states were held the trial court on appeal of this case the Criminal Likewise, this issue. neither the State nor Appeals found the defendant had raised rec provide the defendant citations to the warranting opening proof valid issues transcripts ord to indicate where give opportu on retrial to the defendant an hearings may be found. nity compelling necessity to demоnstrate a for an examination of the child witness party appellate re When a seeks competent reputable expert. We duty there a record view is a finding concur in event there is a fair, conveys which accurate and com retrial of this case. plete transpired account of what with re requires spect forming The next issue a determina to the issues the basis of the properly appeal. Bunch, tion of whether the trial court 646 S.W.2d (Tenn.1983). competency evaluated the victim’s as a in wit Where the record is examining competen- transcript ness. When a child’s complete and does not сontain a
5fil
upon
the child
care is
proceedings
an issue
under Dr. Luscomb’s
relevant
is based.
presented
review,
the defendant’s conviction
portions
or
of the whom
relies,
upon
party
ap
record
which the
an
“[tjhere
is no
Dr. Luscomb testified
pellate
considering
precluded
court is
will be exhibited
onе characteristic” that
Roberts,
the issue. State v.
children,
there
sexually abused
rather
all
(Tenn. Cr.App.1988).
Absent the
groups
“constellations” of
necessary relevant material in the record
diagnosis.
upon
he relies to make a
which
appellate
an
court cannot consider the mer
traits attributed to
Some of the behavioral
24(b).
its of an issue.
T.R.A.P.
See
children, upon which Dr. Luscomb con-
defendant
properly preserve
has failed to
abused,
they
been
cluded
had
appeal.
this issue for
(specifical-
bed-wetting, clinging, fear
were
child),
ly
one
fear of water and sharks for
The defendant’s final
for re
issue
irritability, nightmarеs, anxiety and disci-
is whether the
view
trial court erred
pline problems at school.
admitting
of Dr. Rich
ard
Dr.
Luscomb.
Luscomb’s
question that Dr.
is
We do not
Luscomb
post-traumatic
concerned
effects of
syndrome
stress
victims of
exhibited
However, the doctor’s
child sexual abuse.
child sexual abuse and that the children he
*5
testimony
еvaluated in terms of its
must be
Georgian
Day
interviewed from the
Hills
probative
prejudicial
value versus its
ef-
Care
symptoms.1
Center exhibited these
fect.
objects
expert
The defendant
to the
testi
In the context of a criminal tri
mony
grounds
that there is no reli
al, expert
testimony
scientific
solicits the
syndrome
able sciеntific basis for the
and
danger
prejudice
confusing
undue
or
the
of
jurisdiction
that
recognize
does not
the
misleading
jury
the
because of its
issues or
syndrome
a
generally
as
reliable and
ac
special reliability
aura of
and trustworthi
cepted concept in
community
the medical
to
Green,
F.2d
ness. United States v.
548
diаgnose child sexual abuse.
(6th Cir.1977).
“special aura” of
1261
This
impression
issue is one of first
expert
testimony, especially
scientific
testi
However,
this Court.
the Court of Crimi mony concerning personality profiles of
nal
consistently
has
found such
children,
sexually
jury
lead a
abused
testimony inadmissible in sexual abuse tri
responsibility as fact finder
to abandon its
als and this Court has consistently denied
adopt
judgment
expert.
the
permission
See,
appeal
to
in those cases.
strong potential
carries
Such evidence
Dickerson,
(Tenn.
State v.
by encourag
prejudice a defendant’s cause
Cr.App.1990);
Schimpf,
782 ing
jury
that
to conclude
because
(Tenn.Cr.App.1989);
S.W.2d 186
v.
State
by
children have been identified
Myers, 764
S.W.2d 214
post-
to exhibit behavior consistent with
Dr.
testimony
syndrome, brought
Luscomb’s
centered
on
traumatic stress
children,
abuse,
around
likely
four
all of whom came
sexual
it
that the
then
is more
subsequent
under
alleging
his treatment
defendant
the crime.
Bus
committed
See
139,
abuse
the dеfendant.
141
testimony
sey Commonwealth,
His
v.
separately,
Maule,
considered each
(Ky.1985);
Wash.App.
child
but the
35
State
287,
(1983). Testimony
doctor stated that all four children
exhibit-
2. "It is to make statement Gates eds. as Cited of Expert Testimony Typical about the effects of sexual abuse on children" Characteristics Rosenfeld, 429, Victims, Management The Clinical Incest Sexual Abuse 74 Geo.LJ. 440-41 of of Children, and Sexual Abuse 22 Traumа 3 "The most casual examinations of these of (Oct.1980); reveals, however, typical many "There is no one classical or of them personality profile developmental for abused children.” Mar- are associated with other Children, Beezeley, Personality psychological problems tin & Abused of childhоod and ado- Multi-disciplinary Ap- example, in The Abused Child: A lescence. For the fact that a child proach Developmental nightmares, regression, appetite, Issues and Treatment suffers loss of (H. 1976); little, Kempe depression says very anything, Martin & C. 108 eds. “No two if exactly Myers, children or families will react in about sexual abuse.” J. Child Witness (1987) way presence same MacFarlane, to the of child sexual abuse.” Law and Practice S. 4.15 at 157 by as cited Children, Rimmasch, Sexual Abuse in The State v. P.2d note at 775 (J. (Utah 1989). Chapman Women 93 & M. Victimization of find the foregoing we For the reasons testimony concerning expert
admission of syn- post-traumatic stress
symptoms of We affirm error.
drome be reversible Ap- judgment of the of Criminal Court conviction.
peals reversing defendant's for a new trial.
The case is remanded
REID, C.J., and DROWOTA JJ.,
ANDERSON, concur.
DAUGHTREY, J., separate concurs opinion.
concurring
DAUGHTREY, Justice, concurring. testimony ruling expert
In offered inadmissible, majority be
this case to authority the of Criminal as
cites Schimpf,
Appeals decision (Tenn.Crim.App.1989). For the opinion in my dissenting
reasons stated 196-199, be- I continue to
Schimpf, id.
lieve that certain kinds
concerning diagnosis child sexual admissible, es-
abuse should be considered light promulgation
pecially the Tennessee Rules
Rules 702 and Because I also believe that
of Evidence. majority opinion with too broad brushes invalidating any such
a stroke in and all
expert testimony, though agree I even testimony may
Dr. Luscomb’s have been *7 general to of assistance to the
too be case, only I concur in the
that heard majority.
result reached Tennessee, Appellee,
STATE BRANAM, Appellant.
Danny Tennessee,
Supreme Knoxville.
May