Opinion
No. 848SC1098
Filed 1 October 1985
Criminal Law 53; Rape and Allied Offenses 4 — medical testimony — victim's symptoms of rape trauma syndrome inadmissible hearsay Testimony by a pediatrician concerning symptoms of rape trauma syndrome an alleged rape victim told him she had was not admissible under G.S. 8C-1, Rule 803 but was inadmissible hearsay where his examination of the victim was conducted in preparation for trial and not for purposes of diagnosis and treatment. Furthermore, the pediatrician's testimony was not admissible to corroborate the victim because it went far beyond the victim's testimony.
APPEAL by defendant from Lewis, Judge. Judgment entered 18 July 1984 in Superior Court, WAYNE County. Heard in the Court of Appeals 20 August 1985.
Attorney General Lacy H. Thornburg, by Assistant Attorney General Alfred N. Salley, for the State.
Barnes, Braswell Haithcock by R. Gene Braswell and S. Reed Warren, for defendant appellant.
Judge BECTON concurring in result.
Judge MARTIN dissenting.
The defendant was tried for second degree rape and taking indecent liberties with a minor. Tammy Ingram, a 14 year old girl, testified that on 9 December 1983 she spent the night in the home of her aunt, Sally Stafford, and her uncle, Michael Stafford. She testified further that she awoke after the defendant entered her room at which time he raped her. She did not tell anyone of the incident until 11 January 1984. On that day she told a friend who insisted that Tammy Ingram tell her mother. On 12 January 1984 Tammy Ingram's mother took her to the office of Dr. Joseph Ponzi. She did not see Dr. Ponzi again until Friday, 13 July 1984, when she returned to his office. The trial of this case commenced on 16 July 1985. She testified that in December 1983 she weighed 125 pounds and weighed between 110 and 115 pounds at the time of the trial. She also testified that her grades in school went down after she had been raped.
Dr. Joseph Ponzi, a pediatrician, testified that on 12 January 1984 Tammy Ingram and her mother came to his office. He examined Tammy Ingram on that date and saw her again on 13 July 1984. The defendant objected to testimony by Dr. Ponzi as to a rape trauma syndrome and the court conducted a voir dire hearing out of the presence of the jury. Dr. Ponzi testified at the voir dire hearing that a rape trauma syndrome is a condition with a well recognized complex number of symptoms. There have been several articles on it which have been published in medical journals. He said he could not form an opinion as to whether Tammy Ingram had a rape trauma syndrome but he could state what the symptoms are and what are the symptoms he found in Tammy Ingram. Dr. Ponzi then testified before the jury that a rape trauma syndrome is a list of symptoms or a symptom complex that is attributable to people who have been raped. He said, "It shows such things as musculoskeletal complaints, headaches, vomiting, weight loss, vaginitis, dysmenorrhea, emotional turmoil. These kids often, or adolescents are often depressed, very emotional, labile; other things, they feel guilty, anxious, self depreciating themselves." He testified that on 13 July 1984 Tammy Ingram told him she had a 15 pound weight loss between December and February, that she had been vomiting, that she cried a great deal, was emotionally labile, had a decreased school performance, had nightmares and dreamed about the incident.
The defendant testified that he had not had sexual relations with Tammy Ingram at any time. His wife testified that she slept in the same bed as the defendant on the night of 9 December 1983 and that she heard no commotion that night. She also testified that Tammy behaved normally the next morning. The defendant introduced evidence of his good character and reputation.
The defendant was convicted of second degree rape and was sentenced to twelve years in prison. He appealed.
The appellant's only assignment of error is in regard to Dr. Ponzi's testimony in regard to the rape trauma syndrome. We believe this assignment of error has merit. Dr. Ponzi testified as to the symptoms of rape trauma syndrome. He then testified as to the symptoms Tammy Ingram told him on 13 July 1984 that she had. If this testimony was introduced to prove the symptoms which Tammy Ingram had so that the jury could then determine whether she had a rape trauma syndrome it was hearsay testimony. It was offered to prove the truth of what Tammy Ingram told Dr. Ponzi. See G.S. 8C-1, Rule 801(c) for a definition of hearsay. We do not believe this testimony was admissible under any exception to the hearsay rule. G.S. 8C-1, Rule 803 provides in part:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(4) Statements for Purposes of Medical Diagnosis or Treatment — Statements 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.
We do not believe this exception is applicable in this case. It is obvious that Tammy Ingram went to Dr. Ponzi on 13 July 1984 in preparation for going to court. She did not go for treatment. We do not believe we should hold she went for diagnosis. The commentary says this exception to the hearsay rule is based on the strong motivation for truthfulness when a patient is seeking treatment from a physician. For this reason we believe the diagnosis for which the exception to the hearsay applies should be a diagnosis for the purpose of treating a disease.
If the testimony were offered for the purpose of corroborating Tammy Ingram's testimony it would not be hearsay. Nevertheless a good part of it should have been excluded because Dr. Ponzi's testimony did not corroborate Tammy Ingram's testimony. Tammy Ingram testified that between December 1983 and July 1984 her weight went from 125 pounds to between 110 and 115 pounds. She also testified she made lower grades in school. Dr. Ponzi testified that she told him that she had a 15 pound weight loss, that she had been vomiting, that she cried a great deal, was emotionally labile, had a decreased school performance, had nightmares and dreamed about the incident. This testimony went far beyond corroborating the testimony of Tammy Ingram. It was error to admit it. See State v. Taylor, 280 N.C. 273, 185 S.E.2d 677 (1972). We hold this is an error requiring a new trial.
New trial.
Judge BECTON concurs in the result.
Judge MARTIN dissents.