State v. Ballard

714 S.W.2d 284, 1986 Tenn. Crim. App. LEXIS 2267
CourtCourt of Criminal Appeals of Tennessee
DecidedApril 9, 1986
StatusPublished
Cited by9 cases

This text of 714 S.W.2d 284 (State v. Ballard) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Ballard, 714 S.W.2d 284, 1986 Tenn. Crim. App. LEXIS 2267 (Tenn. Ct. App. 1986).

Opinion

OPINION

DUNCAN, Judge.

The State has filed an appeal, pursuant to Rule 9 of the Rules of Appellate Procedure, seeking a review of the trial court’s order granting the defendant’s pretrial motion for independent psychiatric/psychological evaluation of certain children, said children being named as alleged victims in [285]*285nineteen (19) separate indictments brought against the defendant, each indictment charging the defendant with aggravated rape and aggravated sexual battery. Allegedly, the crimes occurred in 1983 and 1984.

The issue before us is whether the trial judge erred in granting this motion. We find that he did.

The record indicates that the alleged victims were two (2) to five (5) years of age, and they attended the Georgian Hills Child Care Center. After the alleged events occurred involving these children, they were examined and treated by certain psychiatrists. Thereafter, the defendant filed a motion seeking permission to have the children evaluated by an expert of her own choosing.

The trial court heard arguments on the motion on March 28, 1985, and received testimony on the motion on April 8, 1985 at which time Dr. Ben Bursten testified for the defendant, and Drs. Sue Atwood and Richard Luscomb testified for the State. We have reviewed their testimony and will briefly refer to some of their testimony that we deem pertinent to the issue before us.

The defendant attempted to establish through Dr. Bursten’s testimony that independent evaluations of the children would not be overly harmful to them. Dr. Bur-sten said that the possibility of harm to the children would depend upon the expertise of the examiner or team conducting the evaluation. He explained how a qualified expert would probably proceed. He stated that he could not say that any specific benefit would result from the additional evaluation, stating that benefits “might come or could reasonably come.” Dr. Bur-sten agreed that before a crime victim should be subjected to an independent evaluation, there should be some reason for it to be done.

The State countered with Drs. Atwood and Luscomb, and attempted to show that the children would be substantially harmed by an additional evaluation by an expert who would be a stranger to the children. Dr. Atwood had been involved with the treatment of ten (10) of the children since the events occurred. Dr. Luscomb had treated twelve (12) or thirteen (13) of the children. Both of these doctors were of the opinion that another interview of the children by a stranger, even though qualified, would be traumatic for them and would serve little, if any, purpose. Dr. Atwood stated that an additional interview by a stranger would cause a child’s symptoms to resurge and would be “almost like recreating the original trauma ... it’s almost as if they relive the original experience.” Dr. Atwood explained that the children had made improvement in therapy, and that another person interviewing them could undo that progress.

Dr. Luscomb pointed out that an expert now evaluating the children would not see the children as they appeared seven (7) to nine (9) months earlier, and that a reevaluation by a stranger could “cause some regression.” Dr. Luscomb stated that reevaluating the children would not be merely “unpleasant,” but would be “traumatic.”

The State also presented five (5) letters (later reduced to affidavits) from health care professionals, three (3) of whom were involved in the treatment of the children. Four (4) of these individuals stated that an evaluation such as that sought by the defendant would be harmful to the children.

In Forbes v. State, 559 S.W.2d 318 (Tenn.1977), the defendant filed a motion one day before the commencement of the trial for an order directing the victim of a rape “to present herself for a psychological examination ... to examine into her mental attitudes prior to trial [in order] to introduce expert testimony to impugn the credibility of the prosecutor and otherwise question her competency as a witness and truthfulness.” Forbes, supra at 320. The trial judge denied the motion, and on appeal, the Supreme Court, after pointing out that a mandatory rule requiring rape victims to submit to psychological or psychiatric examination would be contrary to public policy, stated the following:

[286]*286This question came before the California Supreme Court in Ballard v. Superior Court of San Diego County, 64 Cal.2d 159, 49 Cal.Rptr. 302, 410 P.2d 838, 18 A.L.R.3d 1416 (1968). After holding that a general rule requiring psychiatric examination of complaining witnesses in sex cases would be both unnecessary and inappropriate, the Court said:
Rather than formulate a fixed rule in this matter we believe that discretion should repose in the trial judge to order a psychiatric examination of the complaining witness in a case involving a sex violation if the defendant presents a compelling reason for such an examinaton. (Emphasis supplied). 49 Cal.Rptr. 313, 410 P.2d 849.

559 S.W.2d 320.

We note that in the Ballard case, the Court found that the record showed no necessity for an examination of the prose-cutrix.

After quoting the above from Ballard, the Court in Forbes continued by saying and holding:

Following the full reporting of Ballard, there appears in 18 A.L.R.3d beginning on page 1433, an annotation headed ‘Requiring Complaining Witness in Prosecution for Sex Crimes to Submit to Psychiatric Examination.’ This annotation reveals that the general rule supports such examinations on a discretionary basis.
We hold that in any case involving a sex violation, the trial judge has the inherent power to compel a psychiatric or psychological examination of the victim, where such examination is necessary to insure a just and orderly disposition of the cause. Such power should be invoked only for the most compelling of reasons, all of which must be documented in the record. This discretion should be exercised sparingly.

559 S.W.2d at 321.

Nevertheless, the Forbes court found no error, basing its conclusion on the grounds that the record revealed no compelling reasons for ordering the victim to submit to a psychological examination and because the motion was not timely filed in the trial court.

In Seelback v. State, 572 S.W.2d 267 (Tenn.Cr.App.1978), the defendant contended that his motion for a psychiatric examination of the rape victim should have been sustained by the trial court, claiming that inconsistencies between the victim’s testimony and the testimony of other witnesses, and her pattern of promiscuous conduct, showed her mental instability. Our Court, in affirming the trial court’s denial of the motion, and in recognizing the rule as stated in Forbes, supra, found that the record showed no compelling reasons for the examination.

In People v. Beauchamp,

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Bluebook (online)
714 S.W.2d 284, 1986 Tenn. Crim. App. LEXIS 2267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ballard-tenncrimapp-1986.