

   
   
   
   U.S. v. Patterson



UNITED STATES, Appellee
v.
Derrick E. PATTERSON, Sergeant
U.S. Army, Appellant
 
No. 99-0901
Crim. App. No. 9800417
 
United States Court of Appeals for the Armed
Forces
Argued February 29, 2000
Decided September 8, 2000
SULLIVAN, J., delivered the opinion of the
Court, in which CRAWFORD, C.J., and EFFRON, J., joined. GIERKE, J., filed
an opinion concurring in the result, in which COX, S.J., joined.
Counsel
For Appellant: Major
Kirsten V. C. Brunson (argued);
Colonel Adele H. Odegard and Major Scott R. Morris (on brief).
For Appellee:
Captain
Arthur L. Rabin (argued); Colonel Russell S.Estey, Lieutenant Colonel Eugene
R. Milhizer, and Major Patricia A. Ham (on brief).
Military Judge: Larry R. Dean
 
 


This opinion is subject
to editorial correction before publication.


Judge SULLIVAN delivered the opinion of the
Court.
During the Spring of 1998, appellant was tried
by a general court-martial composed of a military judge sitting alone at
Fort Benning, Georgia. Pursuant to his pleas, he was found guilty of 2
specifications of raping a child under 16 on divers occasions, 2 specifications
of forcible sodomy of a child under 12 on divers occasions, 4 specifications
of committing indecent acts with a child, disobedience of a lawful order,
and damaging military property, in violation of Articles 120, 125, 134,
90, and 108, Uniform Code of Military Justice, 10 USC §§ 920,
925, 934, 890, and 908, respectively. On March 20, 1998, he was sentenced
by a military judge to a dishonorable discharge, 45 years confinement,
total forfeitures, and reduction to pay grade E-1. On May 21, 1998, the
convening authority, in accordance with his pretrial agreement, reduced
confinement to 25 years but otherwise approved the adjudged sentence. The
Court of Criminal Appeals affirmed the findings of guilty and sentence
in a memorandum opinion on January 22, 1999, and again on April 12, 1999,
on reconsideration.
This Court on December 9, 1999, granted review
on the following issue of law:



WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION
AND MATERIALLY PREJUDICED APPELLANTS RIGHT TO A FAIR TRIAL BY PERMITTING
IRRELEVANT EXPERT TESTIMONY CONCERNING TREATMENT OF PEDOPHILES AT THE SENTENCING
PHASE OF TRIAL WHEN THERE HAD BEEN NO DIAGNOSIS OF APPELLANT AS A PEDOPHILE
AND THE EXPERT WAS NOT QUALIFIED TO PREDICT APPELLANTS RESPONSIVENESS
TO TREATMENT.



We hold that no error was committed by the military
judge in admitting the expert testimony on "grooming" to explain the impact
of the offenses on the victim. Any error that may have been committed in
admitting expert testimony concerning a groomers lack of potential for
rehabilitation was not plain error requiring the reversal of appellants
sentence. See United States v. Stinson, 34 MJ 233, 238-39
(CMA 1992) (presumption that military judge will properly evaluate testimony
in context of evidentiary rules).
At the time of his court-martial, March 20,
1998, appellant was a 31-year-old married Sergeant (E-5) with approximately
6 years of active Army service. He had two children, an 8-year-old son
and a 9-year-old daughter. On January 4, 1998, his daughter told her mother
that appellant had been sexually abusing her. When interviewed by the Criminal
Investigative Command (CID) at Fort Benning, Georgia, appellant admitted
that he had been sexually abusing his daughter since she was 5. The abuse
began while his family was in Germany. Initially, appellant merely massaged
his daughters naked body and touched her private areas. Later, he began
rubbing his penis against her body, and soon thereafter, he persuaded his
daughter to masturbate him. Over time, the abuse escalated into sexual
intercourse and sodomy. The sexual activity continued after appellants
family moved to Georgia.
After his confession to the CID, appellant
was given a written order by his company commander to avoid any contact
with his wife and children. On January 10, 1998, appellant disobeyed the
no-contact order when he broke his restriction from the fourth floor of
Martin Army Community Hospital and ran to his on-post quarters. He yelled
at his wife to open the door. After the wife and children exited through
the back door, appellant broke the front door down. The damage to the door
was in excess of $100.00. Appellant wanted to get the keys to his truck
and flee Fort Benning. However, the military police arrived at the quarters
and blocked his escape.
The Government called as a sentencing witness
Lieutenant Colonel (Doctor) William S. Evans, Chief of Child Adolescent
Family Psychiatry at Eisenhower Medical Center. He testified that he met
and talked with appellants wife, examined appellants daughter, and talked
with her therapist. (R. 65). He stated that he did these things in order
to testify "about the impact these crimes may have on [appellants daughter]
and her family" and to "learn[] about the accused and any possible condition
he may have." (R. 66). The defense stipulated that he was an expert in
the fields of general psychiatry and child and adolescent psychiatry. (R.
71). However, it objected to this witness "classifying any psychiatric
orders or disorders that [appellant] may have on the grounds that he does
not have personal knowledge, has not conducted the appropriate interviews
. . . [to] adequately lay sufficient foundation for him to make a prognosis."
(R. 76). The military judge sustained the defenses objection. (R. 78).
Doctor Evans then was asked a series of questions
concerning the impact of the charged offenses on appellants daughter.



Q. Sir, [EPs] provocativeness at the age
that she is now, how do you believe that came about?
A. My assumption would be that would be one
of the behaviors that dad had rewarded or fostered along the way, some
little smiles or other things are something that did sort of at some level
either overtly or covertly gave her a message that that was nice, he liked
that.
Q. And actions by dads like that, sir, is there
-- what is that called in the field of psychiatry?
A. I think what youre referring to is grooming.
Q. And could you explain grooming, the idea
of grooming?
A. When I talk about grooming its a particular
description of activities in a pedophile ----
DC: Objection, Your Honor. Weve already covered
this area regarding a diagnosis of Sergeant Patterson. Youve ruled that
Colonel Evans doesnt have the requisite knowledge to discuss that regarding
Sergeant Patterson himself.
MJ: I am going to allow this testimony though,
however, as it impacts the -- how these offenses were committed and how
-- and what goes into committing them. And I understand that to be
what the doctor is testifying about now. Hes not specifically testifying
about Sergeant Patterson, but is testifying about how these offenses
were probably committed as evidence[d] by his examination of this person.
Is that correct or am I ----
WIT: I believe so, sir.
MJ: Okay, if Im not then Im certainly subject
to not being correct. Why dont you just sort of correct me if you think
that Im incorrect on it.
WIT: I think so.
MJ: Okay, I think Im in the ballpark. Okay.
Im going to overrule your objection; thats at least the way Im going
to consider it.
DC: Thank you.
MJ: If there is something else you need to
tell me about that doctor then let me know. Go ahead.
Q: Sir, explain to us grooming, could you?A.
Grooming is a description of how one starts to engage children, starting
from just -- it could be facial contact. How one goes about talking to
them. How one initiates initial sexual contact, and how one then over a
period of -- it could be of days to weeks to in this case years escalates
that to more and more activity, more and more varied different types of
sexual activity, all the way up to sexual intercourse and the like. So,
its just a fairly well documented phenomena of what certain individuals
do to seduce children. I mean clearly they cant go from point "A"
to home base in one step, and what it describes is how they get there,
and its well documented out there, the steps. I mean you can go and probably
find books that talk you through it; Step A, Step B, Step C.
Q. Sir, you reviewed the statements by the
accused and the statements by [EP] before you came here?
A. Yes, I did.
Q. Did you see a pattern of grooming in those
statements?
A. I did see a pattern of grooming that lured
me very much.
Q. Can you describe what you saw, that you
saw as grooming?
A. What I saw was descriptions of some initial
just touching back when she was 4 to 5 gradually progressing to more and
more touching to fellatio to eventually to -- I guess what we would call
intercourse. I think that was established in ----
Q. Sir, would sex games often be one of the
steps in grooming?
A. That could be one of the tools. Like in
this case I believe it was the microphone game that was played. I mean
thats one of the ways you might go about seducing children.
Q. Sir, have you treated or seen patients
before, adult males, that had this course of conduct that they committed
this grooming with children?
A. Yes, I have.
Q. And you reviewed literature -- have you
reviewed literature on those who groom young children regarding their treatment
and the success of their treatment?
A. Theres a lot of literature out there that
talks about how one could go about treating these individuals. And what
one finds out is that theres no necessarily agreed on good treatment versus
not so good treatment. And theres no real outcome studies that are
really saying that its particularly effective no matter what weve tried.
Q. What has been tried, sir?
A. I know some countries and some states have
tried chemical castration. Some countries have tried actual castration
of the individuals. There are all sorts of therapy. Theres aversion therapy.
In Texas they have some pilot programs now where they basically put the
person back in the community, but they pretty much follow them around all
the time. And again there are no good studies saying that any of this
ultimately prevents that individual from re-offending.
Q. So, would it be correct to say then that
nothing has been medically proven to be successful to cure one who has
previously manifested this conduct, the grooming? Would it be correct to
say that?
A. Not that Ive seen.



(R. 84-88) (emphasis added).

___ ___ ___
Appellants argument before this Court is that
the military judge erred in allowing Doctor Evans to testify about "the
habits of pedophiles" and the absence of effective "treatment programs
for pedophiles." Final Brief at 6, 8. He asserts that the trial judge ruled
Doctor Evans was not competent or qualified to diagnose appellant as a
pedophile and, therefore, any testimony concerning pedophilia was incompetent
and irrelevant. He finally argues that Doctor Evans testimony and trial
counsels exploitation of it in his closing argument unfairly influenced
the military judge to give him a 45-year sentence.
We first note that the government witness,
Doctor Evans, did not expressly testify that appellant was a pedophile.
He did testify that "grooming" was a term that described certain activities
of a pedophile and "grooming" occurred in this case. However, the military
judge earlier made clear that he would not consider this witness testimony
on appellants psychiatric or psychological condition because he failed
to personally examine him. (R. 78). Accordingly, even if Doctor Evans
testimony implicitly labeled appellant a pedophile, we conclude there was
no violation of the trial judges expert-witness-disqualification ruling.
See
United States v. Davis, 44 MJ 13, 17 (1996); United States v.
Kinman, 25 MJ 99, 100-01 (CMA 1987) (appellate court assumes that military
judge will do what he says he will do); see generally Mil.
R. Evid. 105, Manual for Courts-Martial, United States (1998 ed.) (evidence
may be admitted for one purpose but be restricted in its use for other
purposes).
Turning to the actual testimony of Doctor Evans,
we note that he was called by the Government as a sentencing witness at
appellants court-martial and did provide expert testimony in this case.
See
RCM 1001(b), Manual, supra (matters to be presented by the prosecution).
He testified that it was his expert opinion that appellants daughter "will
suffer significant problems in the future based on her sexual abuse." (R.
78). He stated that she would suffer in two major ways:



Presently based on my evaluation she has
two reasonable diagnoses. The first being posttraumatic stress disorder,
which has occurred because of the 4 to 5 year history of sexual abuse by
her father. And the second being a dissociative disorder not otherwise
specified.



He also explained "other ways" in which these
psychiatric problems would manifest themselves as she grew older and entered
puberty. (R. 83).



So I think thats one of the issues that
may follow her throughout her life. [Anger at mother]. Another issue
being although not to an excessive degree she does come across as somewhat
of a flirtatious sort of provocative young lady for her age. And one
would worry that some of that may -- what you may really have is an altered
view of sexuality and an altered view of her body. Again, you can only
predict how that might play itself out as she becomes an adult. Some becoming
excessively promiscuous; others dont have any relationships at all, and
I dont know where thats going to go for her, but at least its not on
target now.



Finally, as noted earlier, he explained that the
victims unusual flirtatious or provocative actions could be traced to
appellants "grooming" conduct.
RCM 1001(b)(4) states:



(4) Evidence in aggravation. The
trial counsel may present evidence as to any aggravating circumstances
directly relating to or resulting from the offenses of which the accused
has been found guilty. Except in capital cases a written or oral deposition
taken in accordance with RCM 702 is admissible in aggravation.



(Emphasis added.) The discussion to this Manual
provision further states:




Discussion
Evidence in aggravation may include evidence
of financial, social, psychological, and medical impact on or cost to any
person or entity who was the victim of an offense committed by the
accused and evidence of significant adverse impact on the mission, discipline,
or efficiency of the command directly and immediately resulting from the
accuseds offense.



(Emphasis added.) There was no objection by the
defense that Doctor Evans was incompetent or unqualified to testify as
to the impact of appellants offenses on his daughter. (R. 71, 78).
The testimony on "grooming" objected to by
appellant at trial and on appeal was admitted by the military judge to
show the psychological impact of appellants offenses on the victim in
this case. (R. 85-86). This situation is similar to that presented in United
States v. Irwin, 42 MJ 479, 483 (1995), where evidence of threats made
to a victim of rape during the rape were admitted to show the special impact
of that offense on the victim. See also United States
v. Wilson, 47 MJ 152, 155 (1997) (evidence of victims special circumstances
admitted which gave rise to enhanced impact of offense on victim); United
States v. Jones, 44 MJ 103, 104 (1996) (evidence of accuseds medical
condition subjecting victim to risk of fatal disease was relevant as aggravating
circumstance). We see no abuse of discretion in the admission of Doctor
Evans testimony on "grooming" for this purpose. See Mil. R. Evid.
105 (limited admissibility of evidence ). See generally United
States v. Wilson, supra.
The final question in this case concerns Doctor
Evans additional testimony that persons who groom children for sexual
abuse are not capable of rehabilitation. Such testimony may have violated
the military judges earlier ruling in this case to the extent that it
addresses appellants psychological state and suggests that he could not
be rehabilitated. (R. 78). Nevertheless, defense counsel did not specifically
object to trial counsels questions on this basis (R. 87), and we conclude
the admission of such evidence was not plain error. See RCM 1001(b)(4)
Manual, supra (evidence of rehabilitation potential generally admissible).
Appellant was found guilty of an extraordinary
number of sexual offenses against his own daughter, a minor child, over
a 5-year period. The inability-to-rehabilitate evidence and argument was
a small part of the Governments sentencing case (R. 142), which otherwise
called for severe punishment of appellant on the basis of the outrageousness
of his offenses and their terrible impact on his daughter. See United
States v. Scott, 51 MJ 326, 330 (1999). Moreover, as noted above, the
military judges earlier in limine ruling restricted his
consideration of Doctor Evans testimony to the impact of the appellants
offenses on the victim. We are confident that he adhered to his own ruling
and did not consider the experts testimony on the question of appellants
psychological state or his rehabilitative potential. See United
States v. Davis, supra; United States v. Raya, 45 MJ
251, 253-4 (1996). Accordingly, we find no material prejudice occurred
to appellants substantial rights as a result of the admission of this
testimony.*
The decision of the United States Army Court
of Criminal Appeals is affirmed.
FOOTNOTES:
* Even if appellants earlier
objections were sufficient to permit review of this case for harmless error,
we would resolve this issue against him for the reasons stated above. See
Article 59(a), UCMJ, 10 USC § 859(a).


GIERKE, Judge, with whom COX, Senior Judge,
joins (concurring in the result):
I disagree with the majoritys treatment of
this case as a plain-error case. Defense counsel made a timely objection
to Lieutenant Colonel (LTC) Evans testifying about his diagnosis of appellant,
on the ground that there was no foundation for LTC Evans diagnosis. The
military judge sustained the objection.
When LTC Evans later strayed from his diagnosis
of the victim to describing his "assumption" that the victim was groomed
by appellant, defense counsel again objected. This time, the military judge
overruled the objection, stating that LTC Evans "is not specifically testifying
about Sergeant Patterson, but is testifying about how these offenses were
probably committed as evidence[d] by his examination of this person." Thus,
LTC Evans was permitted to testify about his "assumption" that appellant
had groomed the victim and about the rehabilitative potential of "those
who groom young children." He opined that there is no medically proven
cure for such a person.
In my view, defense counsels two specific
objections were sufficient to preserve the issue for appellate review.
I am also satisfied that the military judge erred. In United States
v. Horner, 22 MJ 294, 296 (CMA 1986), this Court stated that an opinion
about rehabilitative potential is "simply not helpful" if it is not based
on assessment of an accuseds character and potential. In United States
v. Ohrt, 28 MJ 301, 304 (CMA 1989), this Court stated that "a foundation
must be laid to demonstrate that the witness does possess sufficient information
and knowledge about the accused -- his character, his performance of duty
as a servicemember, his moral fiber, and his determination to be rehabilitated
-- to give a rationally based opinion." While Horner and Ohrt
dealt with lay witness testimony, the same foundational requirements apply
to expert testimony. See United States v. Banks, 36 MJ 150,
161 (CMA 1992) (Expert testimony must be "based on a sufficient factual
basis to make it relevant."). Furthermore, because of the enhanced weight
of expert testimony, its erroneous admission has a higher potential for
prejudice.
Notwithstanding my conclusions that the military
judge erred and that defense counsel preserved the issue, I join in affirming
the decision of the court below. I am satisfied that the convening authoritys
action, reducing the adjudged confinement from 45 years to 25 years, was
sufficient to cure any error in admitting LTC Evans testimony about appellants
potential for rehabilitation.


Home
Page  |  Opinions
& Digest  |  Daily
Journal  |  Scheduled
Hearings


