                       UNITED STATES, Appellee

                                    v.

                    Steven M. CUCUZZELLA, Airman
                      U.S. Air Force, Appellant

                               No. 07-0397

                         Crim. App. No. 36280

       United States Court of Appeals for the Armed Forces

                       Argued November 5, 2007

                      Decided February 25, 2008

BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, J., joined. STUCKY, J., filed an opinion
concurring in the result. RYAN, J., filed a concurring opinion.



                                 Counsel

For Appellant: Captain Anthony D. Ortiz (argued); Lieutenant
Colonel Mark R. Strickland (on brief).

For Appellee: Captain Ryan N. Hoback (argued); Colonel Gerald
R. Bruce and Major Matthew S. Ward (on brief).

Military Judge:   Ronald A. Gregory


        THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION
United States v. Cucuzzella, No. 07-0397/AF


     Judge BAKER delivered the opinion of the Court.

Before a military judge sitting alone, Appellant pleaded guilty

to one specification of battery and one specification of

aggravated assault, both in violation of Article 128, Uniform

Code of Military Justice (UCMJ), 10 U.S.C. § 928 (2000).    The

military judge accepted those pleas and entered findings of

guilty.   Appellant was convicted contrary to his pleas of one

specification of rape, in violation of Article 120, UCMJ, 10

U.S.C. § 920 (2000).   The adjudged and approved sentence

included a dishonorable discharge, confinement for six years,

and reduction to the lowest grade, E-1.    The United States Air

Force Court of Criminal Appeals affirmed.    United States v.

Cucuzzella, 64 M.J. 580, 586 (A.F. Ct. Crim. App. 2007).     We

granted review of the following issue:

     WHETHER THE MILITARY JUDGE ERRED IN THE ADMISSION OF RC’S
     STATEMENTS TO THE REGISTERED NURSE AND SOCIAL WORKER AS
     MEDICAL EXCEPTIONS TO HEARSAY.

                               FACTS

     Appellant and his wife, RC, attended a Newborn-New Parent

Support Program in September 2003.     The program was run by Ms.

Linda Moultrie, a registered nurse and the Family Advocacy Nurse

at the Charleston Air Force Base Family Advocacy Office.    Ms.

Moultrie became concerned about RC’s family life after reviewing

the responses to the “family needs screener” paperwork completed

by RC as a part of the intake procedure for the program.


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According to Ms. Moultrie’s testimony, the paperwork raised red

flags as to RC’s home environment.    Ms. Moultrie saw RC again in

response to a request from RC’s pediatrician.   The pediatrician

requested that Ms. Moultrie come to the hospital and see if

anything “needed to be looked at and assist [appellant and RC]

at home.”   According to Ms. Moultrie, “he had concerns about

them not paying attention to their newborn child.”

     Appellant contacted Ms. Moultrie in April 2004 to request

marriage counseling.   In response, Ms. Moultrie set up an intake

session.    She met with appellant and RC to do an initial

assessment and referral.   At this session, Ms. Moultrie advised

Appellant and RC that their discussion was confidential, but

that she was “mandated to report abuse and maltreatment.”

Appellant and RC told Ms. Moultrie there was no abuse.   She gave

the couple three names to contact and set up an appointment on

April 27 to review their progress.    On April 27, Appellant and

RC reported that they had still not made an appointment for

counseling so Ms. Moultrie set another appointment to meet with

them on May 4.

     On April 30, however, RC contacted Ms. Moultrie and asked

to see her as soon as possible.   RC subsequently arrived at the

office around 1:30 p.m. with her mother and son.   As before, Ms.

Moultrie advised RC that “anything she told me was confidential

but I had to report abuse and maltreatment.”    Ms. Moultrie


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United States v. Cucuzzella, No. 07-0397/AF


testified that RC started to tell her about bad checks she had

written.   “She didn’t know what to do, so we started working on

those issues.”   Ms. Moultrie conceded during cross-examination

that the checks were the “initial emphasis to come into the

office.”   In response to RC’s concerns, Ms. Moultrie and RC

discussed options for community assistance from the Family

Support Center and funds from the Family Advocacy Group for the

initial twenty to twenty-five minutes of their meeting.

      Then, without elicitation, RC began to speak about sexual

and physical abuse she was suffering at the hands of Airman

Cucuzzella.    Ms. Moultrie listened to RC’s disclosure of abuse

for over four hours.    RC told Ms. Moultrie that she had wanted

to contact her earlier, but Appellant had threatened to kill her

if she said anything.   Her demeanor in recounting the abuse was

nervous, marked with intermittent weeping, which she explained

as fear for her own and her family’s safety.   RC told Ms.

Moultrie that Appellant had forced her to have sex with him on

several occasions, including only two weeks after she delivered

their child.   Ms. Moultrie completed “a write-up” for the

allegations of abuse and brought in a social worker to meet with

RC.   Ms. Moultrie also stated that “we” would be in touch with

the First Sergeant throughout the weekend and gave RC the First

Sergeant’s pager number as well as the Hanahan Police

Department’s phone number.


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     At trial, over defense objection, the Government asked Ms.

Moultrie to testify to the circumstances of her meeting with RC

on April 30, 2004, on the ground that the statements in question

were covered by the residual hearsay exception, or,

alternatively, by the medical exception to the hearsay rule.

The military judge found that RC’s statements to Ms. Moultrie

were admissible under Military Rule of Evidence (M.R.E.) 803(4)

-- Statements for purposes of medical diagnosis or treatment.

Specifically, the military judge found that:

     a preponderance of the evidence shows that [RC] made
     the statements regarding sexual abuse by her husband
     with the expectation of receiving treatment in the
     form of marital counseling and otherwise from a social
     worker identified as someone who could help with these
     issues. The statements, therefore, contain the
     indicia of reliability that underlies the premise of
     the exception and are therefore admissible as
     statements for purposes of medical diagnosis and
     treatment.

     For the reasons stated below, we conclude that the military

judge did not abuse his discretion in admitting the statements.1




1
  Because Appellant’s wife testified at trial, no issue under the
Confrontation Clause is raised.

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United States v. Cucuzzella, No. 07-0397/AF


                               DISCUSSION

The Medical Treatment Exception

     Hearsay is not admissible except as provided by the rules

of evidence or an act of Congress.     M.R.E. 802.   The hearsay

rules permit admission of “[s]tatements 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.”   M.R.E. 803(4).

     We review a military judge’s decision to admit evidence for

an abuse of discretion.   United States v. Donaldson, 58 M.J.

477, 482 (C.A.A.F. 2003).   “An abuse of discretion occurs when a

military judge either erroneously applies the law or clearly

errs in making his or her findings of fact.”    Id. (quoting

United States v. Humpherys, 57 M.J. 83, 90     (C.A.A.F. 2002)).

     In United States v. Edens, 31 M.J. 267 (C.M.A. 1990), this

court established a two-part test for evaluating statements

offered as exceptions to the hearsay rule under M.R.E. 803(4).

“First the statements must be made for the purposes of ‘medical

diagnosis or treatment’”; and, second, the patient must make the

statement “with some expectation of receiving medical benefit

for the medical diagnosis or treatment that is being sought.”




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United States v. Cucuzzella, No. 07-0397/AF


Edens, 31 M.J. at 269 (quoting United States v. Deland, 22 M.J.

70, 75 (C.M.A. 1986)).

     This exception to the hearsay rule is premised on the

theory that the declarant has an incentive to be truthful

because he or she believes that disclosure will enable a medical

professional to provide treatment or promote the declarant’s own

well-being.   The Edens test is intended to look beyond the

statement itself to determine if this premise is well-founded in

context.   See Donaldson, 58 M.J. at 485-87; Edens, 31 M.J. at

269; Deland, 22 M.J. at 73.

     Appellant challenges the admission of the statements under

both elements of the Edens test.       First, he argues that the

statements were not made for the purpose of medical diagnosis,

because Ms. Moultrie was not engaged in medical diagnosis.

Second, even if she was, RC did not make the statements in

expectation of treatment.   Turning to the first argument,

Appellant notes that Ms. Moultrie was not certified as a social

worker, sexual abuse counselor, or marital counselor.      Further,

her testimony was arguably inconsistent regarding her role.

Although she considered the new parent program a counseling

program, she also said of her role, “I’m a friendly ear to

anyone that walks into my office.”

     Over time, the medical exception has been broadened to

include persons outside the medical profession, who perform


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United States v. Cucuzzella, No. 07-0397/AF


health care functions and receive statements for the purpose of

medical diagnosis.   For instance, the rule includes statements

made to nonmedical personnel as long as they are made for the

purpose of seeking treatment.   See United States v. Welch, 25

M.J. 23, 25 (C.M.A. 1987) (“‘[T]he statement need not have been

made to a physician.   Statements to hospital attendants,

ambulance drivers, or even members of the family might be

included.’”) (quoting Fed. R. Evid. 803(4) advisory committee’s

notes)); accord Manual for Courts-Martial, United States,

Analysis of the Military Rules of Evidence app. 22, at A22-53

(2005 ed.) [hereinafter Drafters’ Analysis]).     As a result, the

reach of the medical hearsay exception is “[p]otentially . . .

extremely broad.”    Drafters’ Analysis, app. 22 at A22-53.

     In this case, the military judge found that the statements

were made for the purpose of medical diagnosis.    This finding is

not clearly erroneous.   While defense counsel sought to

undermine this finding through cross-examination, the record,

read in totality, reflects that as a Family Advocacy Nurse, Ms.

Moultrie was engaged in mental health diagnosis and referral.

For this reason, both Ms. Moultrie’s status and her role were

consistent with the provision of medical diagnosis and

treatment, in concept and in fact.    Yet, Ms. Moultrie’s status

remains relevant to the determination of whether the declarant’s




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United States v. Cucuzzella, No. 07-0397/AF


purpose in making the statements aligns with the purposes of the

rule.

        Thus, the more difficult evidentiary question in this case

is whether the statements in question were made with some

expectation of receiving medical benefit or treatment.      A

military judge’s finding as to the declarant’s state of mind in

making a statement is a “preliminary question of fact under

M.R.E. 104(a).    As such, it will be set aside ‘only if clearly

erroneous.’”    United States v. Kelley, 45 M.J. 275, 280

(C.A.A.F. 1996) (quoting United States v. Quigley, 40 M.J. 64,

66 (C.M.A. 1994)).    In making this determination, the military

judge should look to the circumstances surrounding the proffered

testimony to determine that the appropriate indicia of

reliability are present.    See Deland, 22 M.J. at 73.

        Here, the subjective state of mind of the declarant is a

key factor in deciding whether the second prong is met,

specifically, “‘the state of mind or motive of the patient in

giving the information . . . and the expectation or perception

of the patient that if he or she gives truthful information, it

will help him or her to be healed.’”    Kelley, 45 M.J. at 279

(quoting United States v. Faciane, 40 M.J. 399, 403 (C.M.A.

1994)).    As a result, judgments on this element may well hinge

on the credibility assessment of the trial judge.




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United States v. Cucuzzella, No. 07-0397/AF

     They may also hinge on appropriate and fair inferences

drawn from the context presented.    For example, a judge might

find the exception applicable in the case of a statement made by

a declarant being examined on a diagnostic table in a doctor’s

office, even if the declarant later claims an alternative

purpose for having seen the doctor.   At the same time, we have

cautioned that in contexts where the medical purpose and benefit

may be less apparent, the rule should not be applied in a rote

or mechanical manner.   Rather, its application should depend on

the identification of indicia that the elements and the purposes

of the exception are met.   For example, in cases involving

statements by young children, where the medical purpose behind a

visit might well be apparent to an adult, we have looked to see

if the military judge has found indicia that the child herself

was cognizant of the medical purpose of the visit.   See United

States v.Rodriguez-Rivera, 63 M.J. 372, 381 (C.A.A.F. 2006);

Donaldson, 58 M.J. at 485; Kelley, 45 M.J. at 280; Edens, 31

M.J. at 268.

     Situations involving mental health counseling can also

raise complex legal and factual questions beyond those presented

in traditional physical examination settings because the

declarants involved may have compound or uncertain purposes for

being present, may not be in a position to appreciate the

context in which they are making the statements, or may have


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United States v. Cucuzzella, No. 07-0397/AF

mixed intent in making the statements in question.    Thus, this

court has cautioned that when:

     statements made by a patient to a psychiatrist are
     offered under Mil. R. Evid. 803(4), the military judge
     must determine that the statements were elicited under
     circumstances which made it apparent to the patient
     that the psychiatrist desired truthful information and
     that only by speaking truthfully would [h]e receive
     the desired benefits from the psychiatric
     consultation.

Deland, 22 M.J. at 73.

     Such admonition is particularly apt where the mental health

diagnosis and treatment is offered in the context of marital

counseling.   In such context, declarants may well have mixed

motives as well as ulterior motives behind their words.    So too,

the reliability of the statements at issue may be clouded by

emotional distress.

     Learned Hand and Oliver Wendell Holmes both noted that the

common law moves with small currents, but through its collective

motion, one might well look up to find oneself far from the

intended textual and legal shore.     In this case, as an appellate

court, we have looked up, and still find the legal shore in

sight.   The military judge did not abuse his discretion in

finding these indicia of reliability present.

     RC’s contact with Ms. Moultrie was for the purpose of

treatment in the context presented.    The relationship with Ms.

Moultrie originated with the Newborn-New Parent program.    In



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United States v. Cucuzzella, No. 07-0397/AF

this context, Ms. Moultrie was identified to RC as a Family

Advocacy nurse.   Ms. Moultrie also referred to Appellant and RC

as clients at the outset of her meetings with Appellant and RC

and with RC alone.    She advised that the sessions were

confidential barring a report of abuse.   Further, in addition to

providing general knowledge to expectant parents, Ms. Moultrie

indicated that the parent support program was a type of

counseling program.    As part of this program, Ms. Moultrie

served as a point of contact and intake nurse for referrals to

specialists, including marital counselors, and social workers.

She indicated through her testimony that in order to provide the

services or make service referrals, it was important that she

know the facts and circumstances or ask about abuse.

     The contact between RC and Ms. Moultrie continued in the

context of a medical referral from RC’s pediatrician.      Ms.

Moultrie had previously indicated her concern for RC’s well-

being when she sought to contact her regarding disclosures she

had made on intake forms involving her husband’s lack of support

for her pregnancy.    Ms. Moultrie had also demonstrated to RC

that she played a counseling role by acting as a referral for

marriage counseling.   This is corroborated by RC’s trial

testimony that she believed Ms. Moultrie was “somebody to

provide counseling.”




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United States v. Cucuzzella, No. 07-0397/AF

     Most important is the circumstantial evidence surrounding

the April 30 session.   On the one hand, the record reflects that

the immediate topic of discussion was RC’s concern about bad

checks.   On the other hand, even if one assumes that RC’s need

to speak with Ms. Moultrie “as soon as possible” derived from

her financial problems, as opposed to a desire for mental health

counseling, there came a time when the purpose of the April 30

session was clearly oriented toward treatment, counseling, and

referral.   Ms. Moultrie’s session notes taken during RC’s

disclosure of the abuse appear typical to the nursing practice.

They are standardized as “subjective, objective, action, plan,”

suggesting diagnoses and treatment.   As noted by the military

judge, RC’s unnerved demeanor during her discussion of the abuse

corroborates her motivation for seeking treatment.   A four-hour

session that included a detailed discussion of the history and

progression of abuse resembles statements made to a psychiatrist

for diagnosis or treatment through counseling, which are

statements plainly incorporated under the rule.   See United

States v. Morgan, 40 M.J. 405, 409 (C.M.A. 1994); Deland, 22

M.J. at 73.

     Finally, while Ms. Moultrie wore a number of hats as an

intake gatekeeper, including advisor regarding bad checks, she

did not play the role of a law enforcement agent.    Ms. Moultrie

made RC aware of her obligation to disclose any discussion of


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United States v. Cucuzzella, No. 07-0397/AF

abuse to authorities; she did not play a forensic role in her

capacity as Family Advocacy Nurse.   Indeed, rather than refer RC

directly to the Hanahan police, she provided RC the number for

the police.   There was no indication of an established

relationship between Ms. Moultrie and the authorities.    Thus,

this case is distinguished from the circumstances in United

States v. Brisbane, 63 M.J. 106, 108, 111-14 (C.A.A.F. 2006),

where the intake nurse served on the Child Sexual Maltreatment

Response Team and played a forensic as well as a medical role in

taking the statements.

     As a result, for the reasons stated above, the military

judge’s finding that RC’s statements “were made with the

expectation of receiving counseling help for her marital

situation” is not clearly erroneous.    Further, the military

judge did not abuse his discretion in concluding “the statements

. . . contain the indicia of reliability that underlies the

premise of the exception and are therefore admissible as

statements for the purposes of medical diagnosis and treatment.”2

                             DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.



2
  Because we find that the statements fall within the medical
hearsay exception, it is not necessary to address whether the
statements would fall within the residual hearsay exception.

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United States v. Cucuzzella, No. 07-0397/AF


     STUCKY, Judge (concurring in the result):

     I concur in the result and much of the majority’s analysis.

I write separately only to state that I do not understand the

majority opinion to require military judges, in cases like this

one, to engage in a particularized analysis of the reliability

of hearsay statements.

     In 2004, the Supreme Court changed the ground rules for the

admission of such statements.   Crawford v. Washington, 541 U.S.

36, 61 (2004).   Before Crawford, an unavailable witness’s

statements against a criminal defendant were not barred from

admission if they bore “adequate indicia of reliability.”     Ohio

v. Roberts, 448 U.S. 56, 66 (1980).   “To meet that test,

evidence must either fall within a ‘firmly rooted hearsay

exception’ or bear ‘particularized guarantees of

trustworthiness.’”   Crawford, 541 U.S. at 40 (quoting Roberts,

448 U.S. at 66)).

     In Crawford, the Supreme Court overruled Roberts.      Whorton

v. Bockting, 127 S. Ct. 1173, 1179 (2007); Crawford, 541 U.S. at

60, 67.   The Confrontation Clause “commands, not that evidence

is reliable, but that reliability be assessed in a particular

manner:   by testing in the crucible of cross-examination.”

Crawford, 541 U.S. at 61.   Thus, a declarant’s testimonial

statements are barred from admission unless the declarant

testified at trial or was unavailable to testify and the accused
United States v. Cucuzzella, No. 07-0397/AF


had a prior opportunity for cross-examination.    2 Stephen A.

Saltzburg et al., Military Rules of Evidence Manual

§ 801.02[1][a][ii] (6th ed. 2006).     In Bockting, the Supreme

Court explained that nontestimonial hearsay may be admitted even

if it lacks indicia of reliability.    Bockting, 127 S. Ct. at

1183.    Of course, such evidence would still be subject to the

rules of evidence.

        The evidence at issue in Appellant’s case -- RC’s out-of-

court statements to Ms. Moultrie -- was testimonial.

Nevertheless, because RC testified at Appellant’s court-martial,

Confrontation Clause concerns were satisfied.    As a necessary

corollary to the Bockting rule, I understand that once these

concerns are satisfied, testimonial evidence is to be treated in

the same manner as nontestimonial evidence -- it is admissible,

subject only to the rules of evidence.    As required by Military

Rule of Evidence 803(4), the military judge found that RC made

the statements to Ms. Moultrie for the purpose of diagnosis or

treatment and had some expectation of receiving a medical

benefit as a result.    See United States v. Ureta, 44 M.J. 290,

297 (C.A.A.F. 1996).    Those findings of fact are not clearly

erroneous.    Therefore, the military judge did not abuse his

discretion in admitting this evidence.




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United States v. Cucuzzella, No. 07-0397/AF


     RYAN, Judge (concurring):

     I concur in the careful opinion of the Court based on the

standard of review; the military judge applied the correct law

and did not clearly err in his findings of fact.   United States

v. Sullivan, 42 M.J. 360, 363 (C.A.A.F. 1995); United States v.

Hollis, 57 M.J. 74, 79 (C.A.A.F. 2002).    I would hold similarly

if the military judge had come to the opposite conclusion and

ruled that the statements in question did not fall under the

medical exception to the hearsay rule.    In my view the facts

presented by this case are at the very banks of the legal shore

envisioned by the language and purpose of Military Rule of

Evidence 803(4) as it has evolved through case law.
