State v. Bellotti

Minnesota, Respondent, STATE of BELLOTTI, Appellant.

Anthony J.

No. C6-85-751. Appeals Minnesota.

Court

March 24, 1986.

Review April Denied

P.C., mother, testified about how incident came to her attention. T.C. playing at had been Bellotti’s house on September getting ready 15. While III, Atty. Humphrey, H. day, Hubert church the next T.C. volunteered that Atty., Foley, Ramsey Gen., Co. daddy Thomas icky Right, is an man. “[C.B.’s] Gaertner, Hill, E. Asst. Susan meant, Darrell C. mommy?” When asked what she Paul, Attys., respon- Ramsey St. Co. you she elaborated: “Because he makes dent. play gum games your pee- bubble with “pee-er” er.” P.C. understood to mean Nemerov, appel- Minneapolis, for Irving area, penis. vaginal the as well as the lant. games, asked what When P.C. kind T.C. daddy replied pulls my pants “her down Heard, decided SEDG- considered and my pee-er, pulls down and checks and P.J., and WICK, and RANDALL CRIP- pants pee-er, and checks her and [C.B.’s] PEN, JJ. pants pulls down his own and he checks his church, pee-er.” returning After from own OPINION police. day she P.C. called Later that SEDGWICK, Judge. “big gum a hunk of observed bubble stuck pants on the front of that had [T.C.] Bellotti, charged Anthony was Appellant, Appellant worn that afternoon.” does not degree of second criminal with counts two challenge hearsay the admission of this Minn.Stat. 609.- under sexual conduct testimony. involved a different 343(a). Each count child. Sgt. Lisa Millar interviewed T.C. at the September Department Paul Police on hearing the trial court St. pretrial

At the suppress certain She testified that T.C. told her motion to denied Bellotti’s by the children. dad had touched her on her out-of-court that C.B.’s incompe- found one victim “pee-er” The court also and demonstrated with anatomi- competent to and the other testify, by taking girl tent to cally correct dolls off the testify. finger in underpants rubbing her doll’s genital Sgt. of the doll. T.C. told area appellant guilty of both jury The found appellant pulled had down Millar that him a third count acquitted counts and thing pants and done the same C.B.’s appeal. trial court not involved on appellant demonstrated how her. T.C. also appellant’s motion for new denied pee-er” by pulling “checking his down We judgment of conviction. and entered pants fondling the adult male doll’s affirm. Afterwards, gave her penis. C.B.’s father gum. bubble FACTS 20, C.B., four, age September also On T.C., four, trial, that she age At testified De- at the Paul was interviewed St. Police gum played “pee-er” game and a “bubble Foster, by Ann a social worker partment game” in bedroom with her friend C.B.’s Ramsey County Human Services Using anatomically her friend’s father. that C.B. Abuse Unit. She testified Child dolls, fa- that C.B.’s correct she testified demonstrated, using anatomically correct touched his pants down his ther took dolls, genitals father touched her that her children. She stat- “pee-er” in front of the hand. She also genitals with his and T.C.’s pants and he also took down her ed that that both children to Foster demonstrated “pee- pants and touched each one’s C.B.’s curling her penis, her father’s had touched this finger. his T.C. demonstrated er” with penis the adult male fingers around female doll. by touching genitals of the doll. appellant. as identified C.B.’s father She Anthony to Dr.

Ann Foster referred both children Bellotti testified that on the Carolyn morning Levitt for examinations. day question medical he walked September Levitt examined T.C. on 25 at into C.B.’s bedroom to check whether her trial, Hospital. At Levitt testi- Children’s pants were wet because she had a habit of appellant fied that T.C. told her that had wetting pants. her pants He checked her hand, “pee-er” each child’s with his touched they were got wet. He a wash cloth having pulled pants, down Levitt tes- cleaning and started pulled her when T.C. appellant tified T.C. told her that said, pants down and “I’m wet. I’m pants penis pulled down his and touched his C.B., too.” He cleaning wet finished genitals and that he touched C.B.’s with his T.C., pants checked found that her were pee-er. appellant pulled up pants After his wet, and cleaned her with a wash cloth. gave gum. he both children bubble put daughter’s He then T.C. into his clothes and washed both children’s clothes. When T.C., physically using examined the clothes put were done he T.C. back into body where the child’s own to determine her clothes and took Arby’s. the children to the sexual contact occurred. When Levitt appellant touched her clitoris and asked if there, replied

had touched her affirma- T.C. ISSUES tively. responded negatively to Lev- She 1. Did the admitting trial court err in questions touching the entrance itt’s about the statements made T.C. and C.B. to vagina to her and her rectum. Dr. Levitt? On October 3 Levitt interviewed and ex- admitting 2. Did the trial court err in amined C.B. Levitt testified that C.B. indi- remaining T.C.’s out-of-court statements pulled verbally appellant cated that had 595.02, under Minn.Stat. subd. 3? § girl’s pants, down touched them on both 3. Did trial court’s admission of in “pee-pee” finger with his while her appel- T.C.’s out-of-court statements violate bedroom, gave gum after- and them bubble right lant’s constitutional to confront wit- her wards. C.B. told Levitt that dad nesses? genitals “pee-pee.” her his touched admitting 4. Did the trial court err initiative, demonstrated On her own she Minn. C.B.’s out-of-court statements under chair and by getting how he did this off a 595.02, subd. 3? Stat. § sitting on the floor. She “leaned back with back, up and her her torso her knees drawn admission of 5. Did the trial court’s said, ‘Something legs spread apart, and like appel- violate C.B.’sout-of-court statements ” this.’ right to confront wit- lant’s constitutional nesses? physically examined C.B. When Levitt clitoris, responded her Levitt touched C.B. admitting err 6. Did the court her there with

that her father had touched diagnosis medical of abuse Dr. Levitt’s “pee-pee.” While Levitt touched his opinion her of T.C.’s truthfulness? vagina, told Levitt entrance to her C.B. had also touched her there that her father ANALYSIS finger. “pee-pee” his and his with both and T.C. to Dr. 1. C.B. Statements of appellant’s police sergeant testified to A Levitt. him “he was in fact confession to that * * * statements trial court admitted changing daughter’s diapers his under Minn. to Dr. Levitt of T.C. and C.B. doing that walked that while he was [T.C.] 803(4), allows admission R.Evid. which along side of him and re- up and stood of medi- purposes made for clothes, he reached out [statements and that moved describing diagnosis cal or treatment vaginal area. He touched her on the symp- past present or history, or medical on the said that he did touch also [C.B.] * * * sensations, inception toms, pain, or or he couldn’t vaginal area. He said ex- cause or character of the general or explain his actions.” (1958). thereof insofar as reason- Minn. ternal source 89 N.W.2d 712 How- ever, diagnosis ably pertinent to or treatment. we hold error admitting that the the identifying harmless, Appellant claims that T.C. and C.B. did not given that there was no claim at trial that Dr. Levitt for the make their statements appellant someone other than committed treatment, diagnosis purpose of medical or the assaults. “injury no claiming that there was or ill- patients sought ness” for which treat- 2. Admissibility T C. Appellant implies disagree. ment. We 595.02, under subd. Minn.Stat. § upon a child does that sexual assault not The trial held requiring investiga- remaining medical court injury result in out-of-court statements diagnosis. police When the re- admissible under tion and 595.02, Levitt, 3 (Supp.1985), Dr. Minn.Stat. subd. children to both had ferred the which states: they sexually been stated had assault- ed. statements warranted medical Their An out-of-court statement made diagnosis. examination and age years child under the of ten or a person mentally impaired iswho as de- Appellant claims that the inter also 609.341, fined in section subdivision Dr. were made for views with alleging, explaining, denying, or describ- investigation, and purposes police there ing any pen- act sexual contact or pur for medical fore were not conducted performed etration with or on the child made pose. Disclosure of statements any or physical act of abuse of the child 803(4). diagnosis within Rule is medical person mentally impaired or the who circumstances, considering the Under these by another, not otherwise admissible children, the age and fact that T.C. of the evidence, rule of statute or is admissible cross-examination, there was available if: evidence Serna, was no error. See State v. 290 (a) person the court or (Minn.1980). authorized to 446 Before Dr. Levitt N.W.2d finds, hearing child, receive evidence a con- physically examined each she inter presence ducted outside of the of the specif an idea of viewed her to obtain what time, content, jury, that the and circum- contact, any, may ic if have oc sexual stances of the statement and the reliabili- also served to build curred. interviews ty person of the to whom the statement the trust the doctor and children between provide is made sufficient indicia of relia- physical of to minimize the trauma the bility; and Therefore the statements examination. * * * (b) child either: physical the ex the made Dr. Levitt before to were admissible as medical his (i) proceedings; aminations the or testifies at pertinent tories treatment. United to See (ii) is unavailable as and witness Shell, (8th Iron 633 F.2d 84 States v. there is corroborative evidence the Cir.1980)(statements of sexual assault vic act; and prior physical to tim to examination doctor (c) the proponent the statement no- they potential where eliminate admissible party tifies of his intention the adverse from the exami physical problems doctor’s particu- and to offer the statement the nation). sufficiently in lars the statement ad- proceeding at he the which in- vance of testimony Dr. Levitt’s included statement into evi- tends to offer the children not admissible statements the party with a provide dence to the adverse 803(4). Dr. under Rule testified that prepare meet opportunity fair to to the appellant each identified as the man child statement. who Such statements had touched them. accurately ap- carefully and injuries generally The trial court regarding who caused follow- plied It found that the they are are irrele the statute. not admissible because reliability ing indicated sufficient diagnosis vant medical and treatment. factors (1) Inc., (a) appellant Plaza, part of the statute: under See Peterson v. 252 Richfield opportunity crime; reliability had the to commit the outlined above also meet Rule (2) disclosed no motive of 803(24)’s requirement that the statements T.C. or witnesses to fabricate or dis- guarantees have “circumstantial of trust tort; (3) T.C.’s statements were “reason- G.A.H., worthiness.” See also D.A.H. v. (4) ably spontaneous;” the statements were (Minn.Ct.App.1985)(affirm 371 N.W.2d 1 product interrogation not the of extensive ing admission of statements of victim of (5) leading questions; with T.C. used termi- child sexual psychologist abuse to in visita (6) nology typical age; to her T.C. was tion case under hearsay exception; residual speak reluctant to with men about the inci- among guarantees circumstantial of trust dent. indicating reliability Other factors spontaneity worthiness were the of her (1) consistency include: of T.C.’s state- statements; fabrication of the story was regarding appellant’s touching ment of unlikely; experts three opined that declar- (2) genitals; complete spon- each child’s ant had not story; fabricated her declar- taneity of T.C.’s initial revelation to her statements; ant’s consistent declarant’s mother, assault; (3) made day after the men; fear of and certain admissions of the Sgt. the statement to Millar was made v. B.M.D., abuser); M.N.D. 356 N.W.2d 813 assault; (4) days four after the the fact (Minn.Ct.App.1984)(affirming admission of agree everything that T.C. did not out-of-court investigators questioners asked. The trial court correct- psychologist in visitation case under ly applied by holding hearing statute hearsay exception; residual circumstantial admissibility on the of the evidence outside guarantees of trustworthiness included (here presence jury of the of the before the spontaneity statements; of one of the con began), unlike the trial court sistency; competency declarant, Carver, 821 (Minn.Ct.App. N.W.2d declarant’s following abnormal behavior 1986). abuser). alleged visits with the Appellant claims that T.C.’s statements sufficiently are not reliable because she We affirm admission of statements made was not consistent about certain contacts. Sergeant 595.02, Millar under subd. Dr. appellant T.C. told that had 803(24). and Minn.R.Evid. genitals penis, touched C.B.’s with his but anyone did not state this at trial or to else. 3. and Clause T.C.’s Confrontation inconsistency may this render While statements. out-of-court penile-genital statement to Dr. Levitt about Appellant argues that the admission inadmissible, contact with C.B. we hold that of T.C.’s out-of-court statements denied error, any, Appellant if was harmless. right him his under the sixth and four degree was not convicted of first criminal assault, sexual and there was substantial teenth amendments to confront the wit second-degree against and consistent evidence of nesses him. No confrontation by appellant touching geni- assault C.B.’s implicated right was here because T.C. tes tals with his hand. and, contrary appellant’s tified to asser argument, tions at oral was cross-examined (b) Part of the statute was met T.C.’s Green, 149, at trial. v. 399 U.S. trial, testimony parties complied at and the California 158, 1930, 1935, 90 26 L.Ed.2d 489 S.Ct. (c). part with 39, (1970); 44 Ortlepp, v. 363 N.W.2d State admitting The trial court erred (Minn.1985). hearsay T.C.’s statements about assaults trial court determined that T.C. had The 595.02, 3, on C.B. under subd. because § capacity remember and to relate to applies only the statute to statements compe- truthfully and therefore However, facts was about assaults on the declarant. 595.02, testify. subd. tent to Minn.Stat. the error is not § reversible because 1(f) (1984). was available Therefore T.C. statements would have been admissible un 803(24). der cross-examination. Minn.R.Evid. same indicia for 314 Admissibility statements prior C.B. competency Note, 4. to the hearing.” 595.02, under subd. 3. Hearsay Exception Minnesota’s § Child for Abuse, 11 Victims Sexual Wm.Mitchell following The trial court found that 799, (1985). L.Rev. 819 The trial court did reliability indicated sufficient factors permitting not err in admission of out-of- 595.02, under subd. C.B.’s § court statements of days C.B. made five

3(a): (1) appellant opportunity had to com- assault; after the incident. The trial (2) court did not nothing suggested any mit the lie; (3) its in determining motive for C.B. or the witnesses to abuse discretion that the “reasonably sponta- statements were C.B.’s circumstances under which C.B.’s state- neous;” (4) terminology typical C.B. used sufficiently ments were made were reli- (5) four-year-old; and corroboration able. eyewitness testimony appellant’s permitting The trial court erred in C.B.’s confession. partial Other factors include: hearsay statements to Foster about as- (1) agree did all C.B. not that was 595.02, saults on T.C. under subd. 3. See § asked; (2) Ann C.B.’s statement supra. However, the error here not days Foster was made five after the reversible because the statements were ad- The trial incident. court also examined exception missible under the residual (and Levitt) Dr. Foster as to the circum- declarants, unavailable Minn.R.Evid. stances under which C.B. made the state- 804(b)(5). See discussion of T.C.’s out-of- ments to them. court statements about assaults on C.B. produced The State C.B. as a wit supra. hearing, After ness. the court found her We affirm admission of statements made testify incompetent and she was there 595.02, 3, to Ann Foster under subd. § fore unavailable. If the declarant is una 804(b)(5). Minn.R.Evid. vailable, evidence of her tes corroborative 595.02, timony required. Minn.Stat. § Carver, v. 3(b)(ii); subd. 380 N.W.2d n clause and C.B. Confrontation (Minn.Ct.App.1986). 821 The trial court statements. out-of-court correctly direct found that T.C.’s constitutionality. a. Facial Ap appellant’s partial supplied confession 595.02, pellant argues that subd. 3 is necessary corroboration. argu unconstitutional on its face. This Appellant claims there ment lacks merit because the statute incor reliability were insufficient indicia of be porates constitutionality in Ohio the test of incompe the trial court found C.B. cause Roberts, 448 U.S. 100 S.Ct. testify disagree. tent to at trial. We In (1980). First, there must be L.Ed.2d testify competency to at trial does not necessity for the out-of-court statement. In alone render a statement inadmissible. 65, Id. at usually at This is 100 S.Ct. 543, Chuesberg,

Re 305 Minn. 233 N.W.2d by unavailability of the de- established Brown, 186, v. (1975); State 887 278 Minn. Id. Such instances clarant. fall under Gorman, (1967); State v. 153 N.W.2d 229 3(b)(ii). Second, 595.02, subd. the state 524, (1949). 229 Minn. 40 N.W.2d 347 Com adequate ment must bear “indicia of relia concerns, part, in petency testify to 100 S.Ct. at 2539. See 66, Id. bility.” at ability If present child’s to remember. Hansen, 96, v. 102 also State 312 N.W.2d at trial an incident child cannot remember 3(a) (Minn. 1981). required This is subd. occurring previously, may she months content, (“the time, and circumstances remembered the incident nevertheless have * * * provide indi- the statement sufficient truthfully related it at the time she 3(a)’s require reliability.”). cia of Subd. made statement. This is the out-of-court person to reliability “the ment that “particularly true of children who have made” also contrib the statement is accurately re whom and cannot short memories goes reliability ute sufficient indicia occurring years months or to member events 315 beyond requirements for facial consti- F.2d ^[1199] at 1203 (“availability of cross- tutionality under the confrontation clause. examination not the sole by criterion [is] which to admissibility test the of hearsay Constitutionality applied. b. as over objection”); confrontation clause C.B. was unavailable because the trial King, 833, United States v. 552 F.2d 846 incompetent testify. court found her to (9th Cir.1976), denied, 966, cert. 430 U.S. good-faith made the required ef 1646, (1977). 97 S.Ct. 52 L.Ed.2d 357 Ac testimony by producing fort to obtain her West, cord v. States 574 F.2d [United Roberts, competency hearing. her at the 1131, (4th Cir.1978); 1137 United States 2543; 74, Haggins 448 U.S. at 100 at S.Ct. Cir.1983), Carlson, 1346, (8th v. 547 F.2d 1356-57 Warden, 1050, (6th 715 F.2d 1055 Cir.1976), denied, cert. 431 U.S. 914 1071, 104 denied, [97 rt. 464 U.S. S.Ct. ce 2174, (1977); S.Ct. 53 L.Ed.2d 980, (1984). 79 Hoo L.Ed.2d 217 This is not a 224] Beto, 516, (5th ver v. 467 F.2d stipulated incompetency, case of which 532 Cir. 1972) (en banc), denied, proper finding unavailability not a for basis cert. 409 U.S. 703, in the constitutional in at least two sense 1086 S.Ct. 34 L.Ed.2d [93 673] jurisdictions. Campbell, 299 Or. (1972) State v. ]; see also Dutton 400 [v. Evans] 633, 694, (1985); 705 P.2d 705 State v. 74, 210, U.S. 91 S.Ct. 27 L.Ed.2d 213 165, 171, 197, Ryan, 103 P.2d Wash.2d 691 (1970) (admission of uncross-examined (1984). 203 by nontestifying coconspirator statement Clause). did not violate Confrontation Adequate reliability may indicia of be Indeed, many hearsay statements contain “particu- shown where the statement has reliability sufficient indicia of to be ad guarantees larized of trustworthiness.” despite missible the absence of cross-ex 66, Roberts, 448 U.S. at 100 S.Ct. at 2539. by amination the defendant. See Fed.R. particularized We hold that factors 804(b)(2) declarations); (dying Evid. Fed. which the trial court held constituted suffi- (statements 804(b)(3) against R.Evid. in reliability adequate cient indicia of are indi- terest); 803(1)(present Fed.R.Evid. sense reliability cia of under the confrontation 803(2)(excited Fed.R.Evid. impressions); clause. The include several which factors traditionally indicating utterances); as relia- King, are viewed see also 552 F.2d 833 bility, (by (9th Cir.1976)(statement strong coconspirator such as corroboration testimony, T.C.’s direct her statement possesses indicia of reli which sufficient confession) appellant’s 74, her mother and Dutton, ability); 400 U.S. 91 S.Ct. Together, lack of to lie. motive C.B. (1970)(same); 213 27 L.Ed.2d Unit particularized factors cited numerous Fleishman, 684 F.2d 1329 ed States v. by the trial court meet constitutional denied, (9th Cir.) (same), cert. 459 U.S. standards outlined Roberts. 464, 74 L.Ed.2d 614 103 S.Ct. Perez, (1982); F.2d 654 [U.S. v.] reliability in Roberts also discussed Snow, (same); F.2d 730 [9th [U.S. v.] having terms of the statement been sub Thus, (same). circumstances Cir.1975] jected equivalent substantial prior other than cross-examination However, in cross-examination. there are can the declarant the defendant sufficiently trustworthy stances which trustworthy to be show evidence are unavailable declarants its submission to degree that warrants admitted in accordance with the constitu jury. the though they tion even have not been cross- reasoning in adopt examined. We the added.) (Emphasis See also United States 1396, Morris, 761 F.2d 1400- Barker v. (9th Cir.1979)(If Nick, the 1199 v. 604 F.2d (9th Cir.1985): 1401 satisfying the confrontation sole method of at opportunity to cross-examine clause was always While central to Confrontation made, many statement was dispositive in the time the analysis and even Clause hearsay would violate cases, kinds admissible is not re- of some cross-examination clause); v. Nick, States 604 the confrontation United every in case. quired [U.S. v.] 316 1346, 1356 Cir.) (8th

Carlson, F.2d Supreme 547 cert. which the to Court allows us con- 914, 2174, sider, denied, interpretation 431 U.S. 97 S.Ct. 53 bolster our of 595.- 02, (“The (1977) a subd. 3. 224 fact that defend L.Ed.2d to cross-examine the declar- ant is unable 6. Dr. diagnosis Levitt’s medical always controlling not on the con ant is opinion ofT.C.’s truthfulness. the right since of cross-ex frontation issue testified, objection Dr. over absolute.”) not amination is counsel, appellant’s opinion to her that Supreme analyzed particular The Court T.C. was truthful in her to in guarantees ized of trustworthiness Dut opinion her that each child had been sexual 210, Evans, 74, 400 U.S. 91 S.Ct. 27 ton v. ly Expert testimony concerning abused. (1970). The L.Ed.2d 213 Court affirmed credibility the of a is admissible in witness by of an out-of-court statement admission strictly child sexual assault in cases because, coconspirator to his cell-mate limited general circumstances. The rule is reasons, the among substance the other Saldana, otherwise. See State v. 324 testimony abundantly established was (Minn. 227, 1982). N.W.2d 231 In State v. testimony, extremely the other admissible 604, Myers, (Minn.1984), 359 N.W.2d 611 coconspirator’s possibility that the remote supreme the court observed: recollection, faulty on statement was based rule, however, general As a we would suppose the cocon- there was reason to that reject opinion expert testimony regarding misrepresent spirator not the defend did falsity of allega- the truth or a witness’ crime, in the the state ant’s involvement crime, expert’s tions about a for the sta- against spontaneous, and it was ment may “stamp tus lend an unwarranted penal interest to make coconspirator’s the allegations, legitimacy” scientific to the Evans, 88-89, at 91 S.Ct. at it. 400 U.S. (citation omitted) similarly The court here ana Myers ultimately admission of affirmed the under which C.B.’s lyzed the circumstances expert’s allegations the opinion that child's made. out-of-court statements were were truthful because “defendant had recognize Supreme Additionally, we object expert’s right waived to to this his Court’s statement in by ‘opening the door’ his kind, “general of law of this how- rules complainant’s cross-examination operation in beneficent their ever opinion mother” her of the child’s about accused, to the must occasional- valuable Miller, v. 377 N.W.2d truthfulness. State public give to considerations of ly way 506, (Minn.Ct.App.1985). 508 The circum policy and the necessities of case.” Myers. stances here were unlike those jurisdiction has Significantly, every credibility Although T.C. was at strong issue, in effective law enforce- “open interest the defendant did not * * concerning *. expert testimony ment to her door” recognized truthfulness. There no un Roberts, at 100 at 2538 448 U.S. S.Ct. limited a sex exception child victims omitted). (citations Mattox See also v. not a situation where the case. This was States, 237, 243, U.S. 15 156 S.Ct. United complaining witness denied earlier (1895). 337, 339-40, 409 The Min- 39 L.Ed. R.B., Re 369 N.W.2d statements. In See legislature has enacted a statute in nesota (Minn.Ct.App.1985). The defendant 353 the circumstances which order extend testimony of his no direct own submitted hearsay testimony of child abuse victims is truthfulness, addressing and cross- admissible, with the constitution- consistent does complainant not examination of incorporated guarantees into the statute. al expert testimony. open the door legislature did not want to allow child (Minn.Ct. Miller, N.W.2d merely escape conviction abusers App.1985). who, age choosing due to their or victims gen otherwise, testify Despite at tri- these factors unavailable to are rule, in admit- considerations, hold that the error eral we policy These public al. pronounced problem The ting opinion did not rise to most in the the truthfulness case has to do with evidence about medical inter- of error. The the level reversible State’s diagnosis primarily views.1 When is an attorney rely opinion the con- did not on history, nearly assessment of medical it is cerning closing in T.C.’s truthfulness her impossible distinguish medical conclu- argument. The was not re- statement judgments sions from that substitute for jury. of the peatedly called to the attention jury legal those of the or other fact finder. opin- her In her Dr. Levitt stated problem highlighted by The was here once, concerning ion truthfulness improper testimony of Dr. Levitt. The general this was in connection with another prosecutor asked the doctor if she had de- viewing In the total- admissible statement. diagnosis” regarding termined “a medical ity of the record and the circumstances T.C., responded by stating and the doctor testimony, suffi- surrounding the there is feeling her that T.C. “had truthful in been in to sustain the cient evidence the record her statements” and had been abused. We not find the statement conviction. do problem graphically Whether or not the so prejudicial so that a new trial is mandated. unfolds, diagnosis it an is there—the is of truthfulness. assessment DECISION This is not an isolated medical evidence testimony concerning T.C.’s Dr. Levitt’s legal significance issue. Given the of the and C.B.’s out-of-court statements “diagnosis,” medical there is established properly admitted under Minn.R.Evid. inevitably pattern a deliberate to enhance 803(4). did not err in admit- The trial court recited, observed, testimony by having it un- ting remaining hearsay by accredited a medical doctor. 595.02, (Supp. subd. 3 der Minn.Stat. § hearsay The use of evidence offered 595.02, 1985). ap- subd. was Section § interviewers, police a through two other court did plied constitutionally. The trial worker, similarly sergeant and a social testify permitting in Dr. Levitt to not err judicial process involves troublesome. sexually opinion that the children were done with scrutiny reliability, of which was opinion Admission of Dr. Levitt’s abused. by judge the trial here. painstaking care error, truth, telling that T.C. was while Nevertheless, practice be- the interview ease, as to prejudicial, so this is not commonplace, and in increasingly comes a new trial. mandate substituting poses danger it of every case of inter- impressions and recollections Affirmed. jury. finding of a for the fact viewers concludes, here the trial majority As the CRIPPEN, J., specially. concurs as fair point, it was More to the was fair. CRIPPEN, Judge (concurring specially). proce- occur under standards as could standards currently in force. Those dure analysis of this case I concur risk of the because need further attention However, my opinion it is majority. in this case injustice demonstrated requires further law of the case that the others. de- legislative review. Several judicial and in- specifically here critical con- The issues discussed made here involve terminations change of prospective one attention to liberties of vite flict between fundamental by police, Interviews of victims process. systematized pattern accused and a workers, now doctors are social cases. proof of facts child abuse here, doctor, days an after as to a analysis is taken alleged patient statements admissi- of the 1. Our assault, is evi- contact 803(4) and where this harmonizes under Minn.R.Evid. ble injuries. An dently for treatment not made language of the rule on statements the broad its broad rule and general excellent discussion inception or character that describe "the by the a case cited policy is found in symptoms, bases source” of the cause or external Shell, 633 F.2d utilizing majority, 77, States v. Iron United though no cases we have found even Cir.1980). (8th apparent 82-5 hearsay exception an victim this where investiga- part of case abuse systematized such, practice the interview As

tions. may uniformly regulated. It be be

could

feasible, example, require inter- hearsay When evidence is filmed.

views be admissible, practice this would

otherwise greater opportu- finder much

give the fact It would also

nity assess the evidence. ability judge

enhance adequate indi- there are

determine whether hearsay evidence is reliable

cations the

admissible. CORPORATION,

PELLETIER

Appellant,

v.

CHAS. M. COMPANY. FREIDHEIM COMPANY, FREIDHEIM M.

CHAS.

Respondents, MORTON, L & M d.b.a.

Ron Company,

Construction

Respondent.

No. C8-85-1402. Minnesota. Appeals of

Court 11, 1986.

March 16, 1986. May Denied

Review

Case Details

Case Name: State v. Bellotti

Court Name: Court of Appeals of Minnesota

Date Published: Mar 4, 1986

Citation: 383 N.W.2d 308

Docket Number: C6-85-751

Court Abbreviation: Minn. Ct. App.