

   
   
   
   U.S. v. Anderson



IN THE CASE OF
UNITED STATES, Appellee
v.
Dudley S. ANDERSON, Technical Sergeant
U. S. Air Force, Appellant
 
No. 97-1137
Crim. App. No. 31996
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
Argued December 1, 1998
Decided July 30, 1999
CRAWFORD, J., delivered the opinion of the
Court, in which COX, C.J., and GIERKE, J., joined. SULLIVAN, J., filed
an opinion concurring in part and in the result. EFFRON, J., filed a dissenting
opinion.

Counsel
For Appellant: Lieutenant Colonel
Ray T. Blank, Jr. (argued); Colonel Douglas H. Kohrt (on brief).
For Appellee: Major Karen L. Manos,
USAFR (argued); Lieutenant Colonel Anthony P. Dattillo and Major
Ronald A. Rodgers (on brief); Colonel Brenda J. Hollis.
Military Judge: Howard R. Altschwager
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.
 

Judge CRAWFORD delivered the opinion of the Court.
Contrary to his pleas, appellant was convicted
by a panel of officer and enlisted members of carnal knowledge; indecent
acts with two children, K and J; communicating a threat; assault; and assault
and battery, in violation of Articles 120, 134, and 128, Uniform Code of
Military Justice, 10 USC §§ 920, 934, and 928, respectively.
Appellant was sentenced to a dishonorable discharge, 12 years confinement,
and reduction to the lowest enlisted grade. The Court of Criminal Appeals
affirmed the findings and sentence in an unpublished opinion. We granted
review of the following issues:
I. WHETHER THE MILITARY JUDGE COMMITTED
PREJUDICIAL
ERROR BY ALLOWING THE TWO ALLEGED VICTIMS
TO TESTIFY
BEHIND A SCREEN, IN VIOLATION OF APPELLANTS
CON-
STITUTIONAL RIGHT TO CONFRONT HIS ACCUSERS,
WHEN
THERE WAS NO BASIS TO SUPPORT SUCH A RULING.
II. WHETHER APPELLANT WAS SUBSTANTIALLY PREJUDICED
BY THE TESTIMONY OF THE GOVERNMENT EXPERT
WITNESS,
WHICH IMPERMISSIBLY BOLSTERED THE CREDIBILITY
OF THE
GOVERNMENT WITNESSES ACCUSING APPELLANT, BY
CONCLUDING
THAT THEY WERE TRUTHFUL AND GAVE THEIR ALLEGATIONS
A
"STAMP OF SCIENTIFIC LEGITIMACY" AS WELL AS
IMPERMISSIBLY "PROFILING" APPELLANT AS A CHILD
SEXUAL
ABUSER.


 


III. WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL
ERROR BY INSTRUCTING THE MEMBERS THAT PRIOR
STATEMENTS
COULD BE CONSIDERED AS SUBSTANTIVE EVIDENCE
WHEN THEY
DID NOT MEET THE EXPRESS REQUIREMENTS OF MIL.
R. EVID.
801(d)(1)(B) and UNITED STATES V. MCCASKEY,
30 MJ 188
(CMA 1990).
We resolve these issues against appellant for
the reasons set forth below.

FACTS  ISSUE I
In February 1994, K testified in person during
the Article 321 investigation.
However, on June 7, 1994, the prosecutor requested to have both K and J
testify either by closed-circuit television or out of appellants sight.
The defense objected to an ex parte
evaluation by Dr. Linda Bessett, a licensed psychologist, of the girls
ability to testify. The defense suggested an independent, court-appointed
expert conduct this evaluation with defense presence at the interview or,
in the alternative, that the interview be taped. The defense also requested
that the military judge conduct an in camera interview of
the girls to assess independently each girl's emotional state. The military
judge refused to prevent Dr. Bessett from conducting this interview, to
permit the defense expert to be present, or to have the interview videotaped.
After the judges ruling, Dr. Bessett interviewed
the girls with Ms. Diana Schofield, a government expert in child sexual
abuse, as an observer. Dr. Bessett testified concerning the effect that
testifying in the presence of appellant would have upon the victims. Dr.
Bessett made specific recommendations concerning the parameters of that
testimony. In ruling on the government request, the military judge made
the following findings of fact:

[K] testified at the Article 32 investigation
and viewed it as a very negative experience. The questions were confusing
and it was a very long proceeding. [K] told Dr. Bessett that she was scared
about the trial process and about being in the same room as the accused.
Dr. Bessett believes it would be pyschologically difficult for her to testify
in court and face the accused, but believes the accused [sic] could identify
the accused in court and testify in his presence, as long as she did not
have to look at him for a long period of time. Her anxiety level will be
very high. Dr. Bessetts professional opinion is that [K] could testify
either behind a screen, or in a position where the accused was not in direct
line of sight with her.
On 12 August 1994, Dr. Bessett separately interviewed
[J] and her mother ... [who] reported her daughter was having nightmares
again. [J] stated she was afraid the accused would kill her, having allegedly
threatened to do so while the alleged abuse was occurring. In Dr. Bessetts
opinion, [J] is very scared of the accused, and would not be able to testify
if she could see the accused. A tour of the court room did not help her,
and her fear is overwhelming. She believes [J] could psychologically cope
with identifying the accused from a picture, but she could not cope with
identifying the accused in person. Dr. Bessetts professional opinion is
that [J] can testify under limited conditions because of her fear of the
accused. Specifically, the preference would be for her to testify in a
separate room with only a trial and defense counsel present and she could
not see the accused or court members. Alternatively, she believes she may
be able to testify behind a screen.

The military judge announced the procedure that
would be used in light of his findings:

[K] will be allowed to testify facing away
from the Accused, directly facing the court members. [J] will be allowed
to testify facing the Trial Counsel. The closed circuit television camera
will project their images to a television which will be positioned for
the military judge, Defense Counsel, the Accused and Court Reporter to
see. And, I note the way the t.v. is set-up right now, I cant see, but
it appears I should be able to see the faces of the witnesses from where
Im sitting. A screen will not be set up for [K] unless its [sic] presence
appears to become necessary. A screen will be positioned along the side
of the witness box for [J]. The witnesses may already be on the stand before
the military judge and members come into the room. The Accused will be
seated at the seat at the Defense Counsel table which is farthest away
from the witnesses. Cross-examination of the witnesses will be done in
such a position of the courtroom that the vision of the witnesses conforms
with the spirit of this ruling. The witnesses will be instructed to speak
up and to let the Court know when they need a break. Additionally, the
witnesses will be allowed to have a victim witness representative sit next
to them, but that person will be instructed beforehand not to give any
cues or anything to the witnesses.

Further accommodation was directed so that the
two defense counsel would have eye contact with each other to facilitate
communication, and the military judge indicated that there would be latitude
to permit counsel to communicate as needed. Defense counsel renewed his
objection to the procedures as a denial of due process.
Prior to K taking the stand, the military judge
gave the following instruction concerning the special measures taken to
facilitate her testimony:

Members of the court, ... as you can see,
a television monitor is being set up and there are video cameras in the
courtroom. I have determined that the courtroom will be arranged in the
manner that you see it. The witness will be seated in front of me here,
facing you the court members with a closed-circuit video camera transmitting
the picture of the child testifying on a television monitor so the defense
and the Accused can see her face, because she will be facing away from
them towards you. You are instructed that you may not draw any inference
against or for either side based upon the way the courtroom is arranged
during the testimony of [K]. The decision to arrange the courtroom in this
manner is one that I made. You should evaluate the testimony of [K] the
same as all of the other witnesses, and not take into account the arrangement
of the courtroom in evaluating any witnesses [sic] testimony. I will later
give you a more detailed instruction on the credibility of a witness. I
again, specifically instruct you that you cannot and must not infer anything
for or against either party based upon my decision to arrange the courtroom
in this manner. Additionally, I would instruct everyone in the courtroom
to not indicate in any way that anyone is behind the television screen
that we have here. This applies to the spectators as well as the parties.

One additional accommodation was made after K
was initially unable even to approach the witness stand:

However, having observed her walk into the
courtroom, face the members, the Accused and all of the spectators, I make
a finding of fact that she was unable to even approach the witness stand
and had to leave the courtroom saying, under her breath, "I cant do this,"
or words to that affect.

The screen and television equipment were repositioned
and appellant was asked to leave the room until K was seated. The defense
concedes that the judge gave an instruction not to draw any inferences
from the procedures being used.

DISCUSSION  ISSUE I
The Confrontation Clause of the Sixth Amendment
provides that, "[i]n all criminal prosecutions, the accused shall enjoy
the right . . . to be confronted with the witnesses
against him." This is a fundamental right. Pointer v. Texas, 380
U.S. 400, 403 (1965). "There are few subjects, perhaps, upon which this
Court and other courts have been more nearly unanimous than in their expressions
of belief that the right of confrontation and cross-examination is an essential
and fundamental requirement for the kind of fair trial which is this countrys
constitutional goal." Id. at 405.
The Confrontation Clause "reflects a preference
for face-to-face confrontation at trial." Ohio v. Roberts, 448 U.S.
56, 63 (1980); see also Maryland v. Craig, 497 U.S.
836, 849 (1990)("a preference that must occasionally give way to considerations
of public policy and the necessities of the case")(quoting Mattox v.
United States, 156 U.S. 237, 243 (1895)). Normally, the Confrontation
Clause requires the defendants presence and ability to see the accusatory
witnesses. Exceptions may be made. A second aspect of the Confrontation
Clause is that the witnesses are under oath. A third is that the defendant
has the right to have the finders of fact evaluate the demeanor of the
witnesses. Fourth, the Confrontation Clause includes the right to cross-examine
these witnesses. See California v. Green, 399 U.S. 149, 158
(1970). While this right is fundamental, it is not absolute. Chambers
v. Mississippi, 410 U.S. 284, 295 (1973)("Of course, the right to confront
and to cross-examine is not absolute and may, in appropriate cases, bow
to accommodate other legitimate interests in the criminal trial process.").
There are various interests that must be balanced against the defendants
right of confrontation, including the Governments "strong interest in
effective law enforcement," Roberts, supra at 64, the states
compelling "interest in the physical and psychological well-being of a
minor victim," Craig, supra at 852, and the "societal interest
in accurate factfinding." Bourjaily v. United States, 483 U.S. 171,
182 (1987).
The right of confrontation may yield to an
important public policy when the reliability of the testimony at issue
is otherwise assured. Maryland v. Craig, supra. In Craig,
closed-circuit television was approved in a case involving a child victim
where: "(1) there was a case-specific finding that testimony by the child
in the presence of the defendant would cause the child to suffer serious
emotional distress such that the child could not reasonably communicate;
(2) the impact on the child would be more than de minimis;
(3) the child testified via one-way closed-circuit television, enabling
the judge, jury, and defendant to observe the childs demeanor during testimony;
and (4) the child was subject to full cross-examination." United States
v. Longstreath, 45 MJ 366, 372 (1996), citing Craig, supra
at 856-57. As illustrated in Longstreath, any deviations from the
common form of confrontation must ensure the reliability of the evidence.
This Court has upheld various methods of obtaining
testimony without face-to-face confrontation between an accused and a child
victim. See United States v. Williams, 37 MJ 289 (CMA 1993)(child
testified from a chair in the center of the courtroom); United States
v. Thompson, 31 MJ 168 (CMA 1990)(children testified with their backs
to the accused, but facing the judge and counsel); but see
United States v. Daulton, 45 MJ 212 (1996)(accused excluded but
permitted to observe the child through closed-circuit television). To support
a determination to limit the right to face-to-face confrontation, the military
judge must make a finding of necessity, i.e., that there is a likelihood
that the child will suffer at least moderate emotional and mental harm
if required to testify in the accuseds presence. See D.A.D.
v. State, 566 So.2d 257 (Fla. App. 1990). This finding is a question
of fact which "will not be reversed unless it is clearly erroneous or unsupported
by the record." Longstreath, supra at 373, citing United
States v. Carrier, 9 F.3d 867, 870-71 (10th Cir. 1993).
The military judges determination of necessity
in the instant case is supported by the record. Dr. Bessetts expert opinion
provided a sound, adequate basis upon which the military judge considered
whether each of the child victims could testify and under what circumstances
each could communicate. When it became obvious that K could not even take
the witness stand, the military judge had a clear basis upon which to modify
his initial ruling and permit K to testify behind the screen. See
Longstreath, supra at 373. The expert testimony and the military
judges own observation thus permitted the judge to determine that the
impact on the two girls was more than de minimis. The arrangement
of televisions and screens was such that all parties could see each child
testify, and the defense was able to conduct full cross-examination while
maintaining communications amongst themselves and with appellant.
Under these circumstances, we hold that the
military judge committed no error materially prejudicial to appellants
substantial rights; nor was appellant improperly denied his right to face-to-face
confrontation.

FACTS  ISSUE II
Appellant characterizes the testimony of the
government expert on child sexual abuse, Ms. Schofield, as profile evidence
which impermissibly labeled him as a child sexual abuser. He complains
that the expert also impermissibly vouched for the truthfulness and credibility
of the two child victims. Appellant acknowledges that he did not object
to testimony which allegedly implied the girls were telling the truth or
that sexual abuse had occurred. Nor, we note, did appellant object to the
qualifications of Ms. Schofield or to any evidence from her which allegedly
labeled him as a child sexual abuser.
Ms. Schofield described the elements of Child
Abuse Accommodation Syndrome and explained that it was a pattern of behavior
used to explain misleading and contradictory actions by child victims of
abuse. Trial counsel then asked her to relate the facts of the case to
the various elements of the syndrome. Ms. Schofield noted that appellant,
as an adult and baby-sitter, "did have the power and he did have the access
and did threaten, or allegedly threatened the children." In discussing
the element of delayed disclosure, Ms. Schofield noted that, when K "saw
a car that resembled [appellants] in the housing area," it was "very significant"
and "scared her." It is this testimony which appellant claims labeled him
as a child abuser and attempted to vouch for the credibility of the child
victims.
Appellant further attacks this line of questioning
because, by relating facts of this case as made known to her, Ms. Schofield
was allegedly telling the members that the children were victims and they
should be believed. Appellant asserts that, because Ms. Schofield vouched
for the credibility of the children and labeled appellant as a child abuser,
this error was obvious and substantial. Further, because the primary issue
was credibility, appellant urges that this was prejudicial error requiring
corrective action.

DISCUSSION  ISSUE II
It is clear from the cases of this Court that
an expert "can inform the jury of characteristics in sexually abused children
and describe the characteristics the alleged victim exhibits." United
States v. Birdsall, 47 MJ 404, 409 (1998), quoting United States
v . Whitted, 11 F.3d 782, 785 (8th Cir. 1993). A qualified
expert can also "summarize the medical evidence and express an opinion
that the evidence is consistent or inconsistent with the victims allegations
of sexual abuse." Id. But the expert may not express an opinion
on the "ultimate issue of sexual abuse." Id. Nor can an expert serve
as a human lie detector for the court-martial. As we stated in Birdsall,
supra at 410, "testimony which is the functional equivalent of
an experts opinion that the victim should be believed is inadmissible."
Ms. Schofield did not opine that the children
were, in fact, abused or that appellant did, in fact, commit the abuse.
See United States v. Birdsall, supra; United States
v. Harrison, 31 MJ 330 (CMA 1990). Ms. Schofield related the elements
of the syndrome and indicated which elements were present, given the facts
of this case. She explained why certain facts she had been provided were
significant in the context of the syndrome.
Additionally, Ms. Schofield was not permitted
to assert that the children were credible. See United States
v. Birdsall, supra; Mil. R. Evid. 608(a), Manual for Courts-Martial,
United States (1994 ed.).2
When Ms. Schofield ventured into the area of credibility, the military
judge sustained defense counsels objection. Upon further objection, the
military judge immediately instructed the members as follows:

Members of the Court, youre advised that
only you the members of the Court determine the credibility of witnesses
in what the facts of this case are. No expert, witness or other witness
can testify that the alleged victims account of what occurred is true
or credible, or that the expert believes that the alleged victims, or that
the expert believes the alleged victims, [sic] or that a sexual encounter
occurred. To the extent that you believed that Miss Schofield has testified
or implied that she believes the alleged victims or that a crime occurred
or that the alleged victims are credible, you may not consider this as
evidence that a crime occurred or that the alleged victims are credible.

These actions by the military judge assured that
impermissible evidence did not get to the members and that any perception
that the expert was testifying about credibility or the actual commission
of an offense was erased. Ms. Schofields
testimony adhered to the permissible limits
of expert testimony. See United States v. Suarez, 35 MJ 374
(CMA 1992).
We hold that the proffered testimony was permissible.
Regardless, we hold that there was no plain error.
Because there was no objection to Ms. Schofields
testimony, appellant may only prevail if there was plain error.

Plain error is a doctrine that "is to be
used sparingly, solely in those circumstances in which a miscarriage of
justice would otherwise result." United States v. Strachan, 35
MJ 362, 364 (CMA 1992), quoting United States v. Fisher, 21
MJ 327, 328-29 (CMA 1986), quoting United States v. Frady,
456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 1592 n. 14, 71 L.Ed.2d 816
(1982). "To establish plain error, appellant must demonstrate: that there
was error; that such error was plain, clear, or obvious; and that the
error affect[ed] appellants substantial rights." United States
v. Czekala, 42 MJ 168, 170 (1995), quoting United States
v. Olano, 507 U.S. 725, 732, 734, 113 S.Ct. 1770, 1777-78, 123
L.Ed.2d 508 (1993).

United States v. Hall, 46 MJ 145, 146-47
(1997).
Any error herein was not plain and substantial.
United States v. Powell, 49 MJ 460 (1998). Appellant was categorized
as an authority figure (baby-sitter and adult), not as a child molester.
Such an obvious conclusion is harmless and does not distort the fairness
of this trial to such an extent that application of plain error is warranted.
Similarly, with respect to any contention that
Ms. Schofield vouched for the credibility of the children, there is no
plain error. Defense counsels objection was sustained and an instruction
was given. Full relief was afforded to appellant in a timely manner. Thus,
not only was any perceived error corrected on the spot, but any potential
prejudice was eradicated.
Within this issue, appellant makes two other
related assertions. First, he implies that Ms. Schofield was not qualified
as an expert. This claim is easily disposed of. Ms. Schofield had specialized
training and experience which would assist the trier of fact and clearly
qualified her as an expert. Mil. R. Evid. 702. During voir dire,
defense counsel inquired into Ms. Schofield's qualifications and affirmatively
stated that he had "no objections" to trial counsels offer of Ms. Schofield
as an expert in child sexual abuse. Any claim that Ms. Schofield was not
qualified was waived. Under the circumstances, there is obviously no plain
error.
Next, appellant claims that Child Abuse Accommodation
Syndrome did not meet the foundational requirements for the admissibility
of scientific evidence. See Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993). Clearly, the military judge did not abuse
his discretion in admitting this testimony. First, such evidence is admissible.
See United States v. Birdsall, supra; United States
v. Suarez, supra. Second, failure to object waives this alleged
defect. United States v. Johnson, 35 MJ 17, 22 (CMA 1992). Finally,
under the circumstances, as noted above, there is no basis to invoke the
plain error doctrine. We hold that there was no error that "materially
prejudice[d] the substantial rights of [appellant]." Art. 59(a), UCMJ,
10 USC § 859(a).

FACTS  ISSUE III
Appellant contends that the military judge
erred when he instructed the members that they could consider several statements
by K and J as prior consistent statements. The military judges instructions,
in relevant part, were as follows:



You have heard evidence that the witness
[K] made statements prior to trial that may be consistent with her testimony
at trial, specifically, that the abuse began in the Summer of 1990; the
bleeding happened in the living room; he put his private part in her private
part; his threat that he would not allow her to play with [his daughter];
and she told [her friend] that he was doing stuff to her too. You have
heard evidence that the witness [J] made statements prior to trial that
may be consistent with her testimony at trial, specifically, that he put
a knife to her neck; he threatened her with a gun; he threatened to kill
her; he put a pillow over her face; and he touched her "boob" with his
fingernail. If you believe that such a consistent statement was made, you
may consider it for its tendency to refute the charge of improper influence
or improper motives. You may also consider the prior consistent statement
as evidence of the truth of the matters expressed therein.



When trial counsel requested this instruction
and produced a list of statements which she wished to be included in the
instruction, defense counsel objected primarily on the basis that Mil.
R. Evid. 801(d)(1)(B) required that the statement "be offered at trial
in rebuttal to a rebutted [sic] claim of recent fabrication, improper influence
or motive." Defense counsel noted that certain of these statements were
"not offered in rebuttal to anything," and that it was the defense, not
the Government, which brought the statements out for the record.
Appellants argument here is that these statements
were not admitted as prior consistent statements and that, by instructing
on them as such, the military judge erred to appellants prejudice by allowing
the members to consider the statements as substantive evidence. The Government
concedes that the military judges characterization of the statements as
prior consistent statements was incorrect but asserts that the instruction
that the members could consider the statements as substantive evidence
was nonetheless correct. The Court of Criminal Appeals reached a similar
conclusion, unpub. op. at 8, and we agree.

DISCUSSION  ISSUE III
None of the statements here were specifically
admitted as prior consistent statements pursuant to Mil. R. Evid. 801(d)(1)(B).
That rule applies to statements made prior to trial which are consistent
with the witnesss testimony and which are "offered to rebut an express
or implied charge against the declarant of recent fabrication or improper
influence or motive." In a typical scenario, the defense counsel would
try to impeach a witnesss credibility, and the trial counsel would try
to rehabilitate the witnesss credibility by introducing a prior consistent
statement. See United States v. McCaskey, 30 MJ 188 (CMA
1990). The issue there would be whether the out-of-court statement was
properly admitted.
That is not the scenario presented by this
case, however. Here, the defense strategy, in part, was to show that Ks
and Js testimony was not credible and was the result of coaching by adults.
As part of that strategy, defense counsel questioned the girls about statements
they had made prior to trial and attempted to point out inconsistencies.
In actuality, the defense ended up soliciting affirmations of their testimony.
Thus, the statements in issue were, in large part, presented to the members
by defense counsel. Having been presented as such, the statements were
already substantive evidence which the members could consider for their
truth if they chose to believe them.
The question before us, then, is whether or
not the instruction otherwise prejudiced appellant by highlighting the
statements for the members just prior to deliberations.
We review a challenge of instructional error
using an abuse of discretion standard. United States v. Damatta-Olivera,
37 MJ 474, 478 (CMA 1993), cert. denied, 512 U.S. 1244 (1994).
A military judge "has substantial discretionary power in deciding on the
instructions to give." Id. at 478. Based on the evidence presented
in this case, we cannot say that the military judge abused his discretion
by instructing the members on these statements.
The testimony of these young victims was a
substantial part of the evidence presented in a strong case. Statements
such as, "He put his private part in my private part," and, "He threatened
me with a gun," were likely to stand out in the members minds as they
deliberated. The defense itself highlighted the testimony of these girls
by attempting to impeach them with their own prior statements. Appellant
should not now be allowed to retreat from that strategy because it was
unsuccessful. Nor should appellant now be allowed to fault the military
judge for that lack of success. Cf. United States v. Raya,
45 MJ 251, 254 (1996)("Invited error does not provide a basis for relief.");
United States v. Schnitzer, 44 MJ 380, 384 (1996)(Everett, S.J.
and Gierke, J., concurring in the result)("[S]ince to a considerable extent
the error was invited by the defense, I conclude that this accused is not
entitled to relief."); United States v. Johnson, 26 F.3d 669, 677
(7th Cir. 1994); A.E. v. Independent School District No.
25, 936 F.2d 472, 476 (10th Cir. 1991).
In addition, there were at least two statements
to which defense counsel failed to object but which were ultimately included
in the instruction: 1) "that the abuse began in the Summer of 1990," and
2) "[K] told [her friend] that he was doing stuff to her too."3
Regardless of our analysis above, with regard to these statements, appellant
has waived his challenge, Mil. R. Evid. 103, and we find no plain error.
See Powell, 49 MJ 460.
The decision of the United States Air Force
Court of Criminal Appeals is affirmed.
FOOTNOTES:
1 Uniform Code of
Military Justice, 10 USC § 832.
2
All Manual provisions are cited to the version applicable at the time of
trial. The 1998 version is unchanged, unless otherwise indicated.
3
Defense counsels objection to a third statement proposed by the Government
is somewhat unclear on the record. Trial counsel proposed including the
statement, "The bleeding happened in the living room, and resulted in blood
in my underwear." Defense counsels objection appears to be only to the
second part of the sentence: "In regards to C, the bleeding happened in
the living room, and resulted in blood in my underwear. Regarding the blood
in the underwear, we would ask that you add to the inconsistent list that
she told Lieutenant Crescenzi that no blood was in the underwear. ... And
we would object to that being consistent because it was not offered in
rebuttal to anything." The military judge, in fact, only used the first
part of the sentence in his instruction. The Court of Criminal Appeals
appears to have considered defense counsel to have not objected to that
part of the statement actually used in the instruction. We will also consider
defense counsel to have failed to object to that statement.
 
 
SULLIVAN, Judge (concurring in part and in
the result):
I disagree with the majoritys reasoning in
deciding the third issue. The third granted issue asks:




III
WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL
ERROR BY INSTRUCTING THE MEMBERS THAT PRIOR STATEMENTS COULD BE CONSIDERED
AS SUBSTANTIVE EVIDENCE WHEN THEY DID NOT MEET THE EXPRESS REQUIREMENTS
OF MIL. R. EVID. 801(d)(1)(B) AND UNITED STATES V. MCCASKEY, 30
MJ 188 (CMA 1990).



In my view, any error in instructing the members
that the alleged victims pretrial statements could be considered as substantive
evidence in this case was harmless beyond any doubt.
The trial judge gave the following instructions
with respect to evidence of pretrial statements by the alleged victims
in this case:



Now, you have heard evidence that the witness
[K] made a statement prior to trial that may be inconsistent with her testimony
at this trial, specifically, her statement that [B] told her the Accused
was doing stuff to her also, and she did not see a scar on the Accused.
You have heard evidence that the witness Petty Officer [R] made statements
prior to trial to Petty Officer [D] that may be inconsistent with his testimony
at trial, specifically, that he possessed and watched pornographic videos,
[K] saw he and his wife having sexual intercourse, and she was on his back
on one occasion when they were having sexual intercourse. You have heard
evidence that the witness [L] made statements to [B] that they possessed
pornographic videos and that [K] had seen her and Petty Officer [R] engaged
in sexual intercourse. If you believe that an inconsistent statement was
made, you may consider the inconsistency in evaluating the believability
of the testimony of [K] and Petty Officer [R] and L. You may not, however,
consider the prior statement as evidence of the truth of the matters contained
in that prior statement.
You have heard evidence that the witness
[K] made statements prior to trial that may be consistent with her testimony
at trial, specifically, that the abuse began in the Summer of 1990;
the bleeding happened in the living room; he put his private part in her
private part; his threat that he would not allow her to play with [T];
and she told [B] that he was doing stuff to her too. You have heard
evidence that the witness [J] made statements prior to trial that may be
consistent with her testimony at trial, specifically, that he put a
knife to her neck; he threatened her with a gun; he threatened to kill
her; he put a pillow over her face; and he touched her "boob" with his
fingernail. If you believe that such a consistent statement was made, you
may consider it for its tendency to refute the charge of improper influence
or improper motives. You may also consider the prior consistent statement
as evidence of the truth of the matters expressed therein.



(Emphasis added.)
Prejudice, however, from such substantive
use instructions, even if erroneous, is hard to imagine for several
reasons. First of all, the two alleged victims testified that appellant
committed the charged offenses. Second, the pretrial statements were never
admitted in this case. Third, the defense first cross-examined the alleged
victims about various details in these statements, and when acknowledged
by the witnesses, it also had them confirm the previously asserted facts
as true. Finally, the victims testimony on the prior statements added
no material fact not covered in their in-courtroom testimony.
In addition, the defense cross-examined the
alleged victims about prior statements they had made concerning the charged
incidents, in hopes of contradicting their trial testimony with their pretrial
statements. This was permissible, although ultimately unsuccessful, impeachment
under Mil. R. Evid. 609 and 613, Manual for Courts-Martial, United States
(1994 ed.). See United States v. Banker, 15 MJ 207, 210 (CMA
1983). The defense did not attempt to limit the use of the witnesses answers
to the issue of their credibility. See Mil. R. Evid. 105. It waited
until after the witnesses testified and after the Government requested
during the closing instructions that the evidence be considered substantively.
In my view, their belated concern under the circumstances of this case
was too late. See generally United States v. Taylor,
44 MJ 475, 480-81 (1996).
 
 
EFFRON, Judge (dissenting):
At the time of his trial, appellant was a Technical
Sergeant in the Air Force with over 19 years of service. The offenses of
which appellant was convicted alleged various forms of child abuse involving
K, who was 11 years old at the time of trial, and J, who was 9 years old
at the time of trial. K, who first made the allegations of the abuse, did
not do so until nearly 2 years after she had last seen appellant. Appellant
testified on his own behalf and denied the allegations. The heart of the
defense case pitted appellant's credibility against the testimony of K
and J.
As noted in the majority opinion, the first
granted issue involves the Confrontation Clause of the Sixth Amendment,
which provides that an accused "shall enjoy the right . . . to be confronted
with the witnesses against him." The Supreme Court, as noted by the majority,
has described this as a "fundamental requirement for the kind of fair trial
which is this country's constitutional goal," Pointer v. Texas,
380 U.S. 400, 405 (1965), providing "a preference for face-to-face confrontation
at trial." Ohio v. Roberts, 448 U.S. 56, 63 (1980). In Maryland
v. Craig, 497 U.S. 836 (1990), the primary case relied upon by the
majority, the Supreme Court recognized a very limited exception:



[I]f the State makes an adequate showing
of necessity, the state interest in protecting child witnesses from the
trauma of testifying in a child abuse case is sufficiently important to
justify the use of a special procedure that permits a child witness in
such cases to testify at trial against a defendant in the absence of face-to-face
confrontation with the defendant.



Id. at 855
Craig provided that "[t]he requisite
finding of necessity must of course be a case-specific one." According
to the Supreme Court, an alternative procedure must be the product of evidence
that supports a finding: (1) that the alternative procedure "is necessary
to protect the welfare of the particular child witness who seeks to testify";
(2) that the child witness would be traumatized, "not by the courtroom
generally, but by the presence of the defendant"; and (3) that "the emotional
distress suffered by the child witness in the presence of the defendant
is more than de minimis, i.e., more than 'mere nervousness
or excitement or some reluctance to testify.'" Id. at 855-56.
The Court emphasized that "courtroom trauma,"
by itself, does not provide a sufficient basis to justify denial of face-to-face
confrontation. There must be a showing that "it is the presence of the
defendant that causes the trauma." Id. at 856.
Craig sets a rigorous standard, which
requires rigorously fair procedures. In the present case, the military
judge failed to apply the procedural safeguards necessary to ensure fair
consideration of appellant's constitutional rights.
This is not a case in which the victim was
so traumatized by the events that she could not communicate in an adversarial
proceeding. Prior to trial, K testified at the Article 321
hearing in the presence of appellant. There is no indication in the record
of the Article 32 proceeding that the presence of appellant produced the
type of trauma discussed in Craig. On the contrary, K testified
at length and provided detailed testimony about the alleged offenses.
Prior to trial, the prosecution filed a written
"Motion for Alternative Forms of Child Testimony," in which it asked for
an Article 39(a)2 hearing
"to determine whether [J] and [K] are able to testify in front of the accused
at trial." The Government indicated that it would offer expert testimony
at the hearing that would be based on psychological interviews of the children
that had been scheduled but not yet conducted.
The Government represented that it expected
the expert to state that if the children were required to testify in the
physical presence of appellant, each "would
undergo serious emotional distress, such that the child would be unable
to communicate;" and that such stress "would be more than de minimus,
and would result, primarily, from the physical presence of the accused
in the courtroom." The prosecution moved that, if such conclusions were
reached by the expert, both J and K be permitted to testify by closed-circuit
television or "in such a manner as to avoid eye contact with the accused."
Defense counsel filed a written response to
this motion. The defense objected to an ex parte examination
by an expert of the prosecution's selection and argued that the better
approach was to have the examination done by a court-appointed military
child psychologist. As an alternative, the defense asked that its own expert
be permitted to attend any examinations done by the Government's expert.
The defense also requested that any such interviews be videotaped. Finally,
counsel asked that the military judge, after hearing the expert testimony,
undertake an in camera interview of the girls to assess their emotional
state and to ascertain the understanding of the girls as to the purpose
of the examinations.
The military judge denied the defense motions.
Thereafter, the prosecution's psychologist conducted ex parte
interviews of K and J. At a subsequent Article 39(a) session, the psychologist
described her interviews of the children. On the basis of those interviews,
the psychologist recommended that J be allowed to testify via closed-circuit
television. The psychologist also concluded that K could testify in court
without any special procedures.
Subsequently, trial counsel moved that a screen
be installed in the courtroom during the testimony of K and J to block
their view of appellant. She also moved that appellant not be allowed in
the courtroom until after the witness was seated in each instance, and
that appellant be required to leave the courtroom before each witness departed.
Defense counsel objected to these procedures.
He noted that K had testified at length at the Article 32 hearing with
appellant in the same room and argued that, while she might have some anxiety,
she would be able to testify. "[S]he's done it before, she can do it again."
Without conceding the need for any alternative
format with respect to J, he contended that the preferred method under
Supreme Court caselaw was to use closed-circuit television, with the witness
and counsel in another room and hooked up by audio and video to the courtroom,
rather than a screen.
The military judge ruled that J could testify
with a screen but that K would testify facing the members and facing away
from appellant without a screen unless the screen "appears to become necessary."
He ruled that a closed-circuit television camera would project to a monitor
"which will be positioned for the military judge, Defense Counsel, the
Accused and Court Reporter to see."
When K was called as a witness, she walked
into the courtroom and sat at the witness stand in front of the members,
the spectators, and the participants in the court-martial. After she reached
the stand, however, her testimony did not begin. Instead, the military
judge provided detailed instructions to the members about the television
monitor and cameras, ensured that the equipment was working, ruled on whether
a government expert could sit at the prosecution table, and further instructed
the members as to the purpose of the victim-witness advocate who was seated
beside K.
After facing the courtroom while all this activity
was undertaken, K spoke privately to trial counsel, and trial counsel requested
a recess. When the proceedings reconvened in an Article 39(a) session without
K on the stand, trial counsel revealed that K had asked that appellant
be excluded from the courtroom when she entered. The military judge asked
whether a screen was needed, and trial counsel responded that that was
an option. Trial counsel continued:



I think at this point it would make it easier
if she had the screen. However, if the court dictates otherwise, we'll
at least try to get her to talk the way the courtroom is set up at this
point.



The military judge, without examining the witness
or obtaining any further testimony from the psychologist, not only granted
the prosecution's request, but also -- on his own motion
-- expanded his original ruling to permit
K to testify from behind a screen.
The military judge's ruling did not reflect
the teaching of Craig that confrontation may not be denied absent
a finding that the child witness would be traumatized, "not by the courtroom
generally, but by the presence of the defendant," and that the distress
suffered by the child is "more than 'mere nervousness or excitement or
some reluctance to testify.'" Craig, 497 U.S. at 855-56. The military
judge simply noted:



However, having observed her walk into the
courtroom, face the members, the Accused and all of the spectators, I make
a finding of fact that she was unable to even approach the witness stand
and had to leave the courtroom saying, under her breath, "I can't do this,"
or words to that affect.



This ruling provides an insufficient basis to
justify denying appellant his constitutional right of confrontation where
the prosecution's expert witness did not recommend that this witness testify
behind a screen, where the judge's initial ruling did not order such a
measure, and where there was no examination of the witness by the court
or an expert to resolve the ambiguity as to the cause of her reluctance
to testify.
The end result was that K testified in a courtroom
environment modified in a manner that identified appellant before the members
of the court-martial as a person to be feared, a person whose impact on
the witness was so traumatizing that extraordinary measures were warranted
in the courtroom. When such measures are taken without an adequate showing
of necessity, they are unconstitutional. Craig, supra.
In recent years, those responsible for the
criminal justice system in general and the military justice system in particular
have become increasingly aware of the adverse impact on individuals and
society that flows from an insensitivity to the rights and needs of victims
and witnesses. See, e.g., Victim Rights Clarification
Act of 1997, Pub.L. No. 105-6, 111 Stat. 12; Victims' Rights and Restitution
Act of 1990, Pub. L. No. 101-647, 104 Stat. 4820; Department of Defense
Directive 1030.1. Sensitivity to such concerns, however, does not require
disregard of the basic constitutional rights of accused servicemembers.
The prospect of testifying in court, particularly
as a victim who must face the accused, is not something that most people
would relish. Under Craig, it is appropriate for a court to be particularly
sensitive to the impact on a victim of tender years. The obligation to
face the accused, however, is enshrined in our Constitution and may be
limited only under the narrowly defined circumstances set forth in Craig.
Failure to follow those procedures in this case created an environment
in the courtroom prejudicial to the substantial rights of appellant.
FOOTNOTES:
1 Uniform Code of
Military Justice, 10 USC § 832.
2
UCMJ, 10 USC § 839(a).

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