

   
   
   
   U.S. v. Robbins



IN THE CASE OF
UNITED STATES, Appellee
v.
Stephen A. ROBBINS, Hull Maintenance
Technician Third Class
U.S. Navy, Appellant
 
No. 99-0421/NA
Crim. App. No. 97-0652
 
United States Court of Appeals for
the Armed Forces
Argued December 10, 1999
Decided April 7, 2000
EFFRON, J., delivered the opinion
of the Court, in which CRAWFORD, C.J., SULLIVAN and GIERKE, JJ., and EVERETT,
S.J., joined.

Counsel
For Appellant: Lieutenant Commander
Robert C. Klant, JAGC, USN (argued).
For Appellee: Lieutenant James E.
Grimes, JAGC, USNR (argued); Colonel Kevin M. Sandkuhler, USMC,
and Commander Eugene E. Irvin, JAGC, USN (on brief).
Military Judges: Captain Roger A. Smith
and Commander Nels H. Kelstrom.
 

This opinion
is subject to editorial correction before publication.
 
 

Judge EFFRON delivered the opinion of
the Court.
A general court-martial composed of
a military judge sitting alone convicted appellant, contrary to his pleas,
of 2 specifications of sodomy with a child under the age of 16 years and
1 specification of dishonorably failing to pay a just debt, in violation
of Articles 125 and 134, Uniform Code of Military Justice, 10 USC §§
925 and 934, respectively. He was sentenced to a dishonorable discharge,
confinement for 7 years, total forfeitures, and reduction to the lowest
enlisted grade. The convening authority approved these results, and the
Court of Criminal Appeals affirmed in an unpublished opinion.
On appellants petition, we granted
review of the following issues:

I



WHETHER THE LOWER COURT ERRED IN
FINDING THAT IT WAS NOT PLAIN ERROR FOR THE MILITARY JUDGE TO ADMIT A WITNESSS
TESTIMONY THAT THE CHILD ABUSE ALLEGATIONS AGAINST APPELLANT WERE CLINICALLY
SUBSTANTIATED.



II



WHETHER THE LOWER COURT ERRED IN
FINDING THAT IT WAS NOT PLAIN ERROR FOR THE MILITARY JUDGE TO ADMIT A WITNESSS
TESITMONY THAT SHE BELIEVED THE VICTIM.



We affirm for the reasons set forth below.

I. BACKGROUND
A. The Testimony at Issue
In this judge-alone trial, the victim
of the charged sodomies, appellant's 7-year-old stepdaughter, testified
and provided detailed information concerning both incidents. In support
of the victim's credibility, the prosecution sought to offer into evidence
statements made by the victim and her mother to Ms. Winona Gilliam, a clinical
social worker who had counseled them both. The defense objected to the
hearsay nature of Ms. Gilliam's repetition of the statements made by the
victim and her mother. See Mil. R. Evid. 801-802, Manual for Courts-Martial,
United States (1998 ed.) The prosecution responded that the statements
were admissible as exceptions to the hearsay rule under Mil. R. Evid. 803(4)(statements
made for purposes of medical treatment) and 803(6) (business records).
In an effort to establish a foundation for admitting the hearsay statements
under these exceptions, the prosecution offered the testimony of Ms. Gilliam
concerning the circumstances surrounding the making of the statements.
As part of this background, Ms. Gilliam
stated that she became involved in the case when the victim's mother requested
counseling for her daughter and herself
concerning the sexual abuse allegations. According to Ms. Gilliam, her
role, as part of the "child sexual abuse team," involved meeting with the
parties, ascertaining facts, and offering referrals for counseling. She
testified that she kept notes of the counseling sessions that were reviewed
by the "child sexual abuse case review committee," which included 12-15
clinical practitioners.
In the course of describing the circumstances
surrounding the hearsay statements, she testified -- without defense objection
-- that the child sexual abuse case review committee was responsible for
determining the credibility of allegations. She added that if the committee
determined that the allegations were substantiated, it would ascertain
the safety of the victim and the amenability of the perpetrator to treatment.
The committee also was responsible for making a treatment referral for
both the victim and the perpetrator.
Trial counsel then asked Ms. Gilliam
whether in this particular case the allegation was "substantiated, clinically."
There was no defense objection, and she gave an affirmative response.
The military judge ruled that the hearsay
testimony relating the statements made by the victim and her mother to
Ms. Gilliam did not constitute business records under Mil. R. Evid. 803(6)
but concluded that the statements were admissible under the medical treatment
exception in Mil. R. Evid. 803(4). At a subsequent point in the trial,
the military judge indicated that he would "give very little weight to
[Ms. Gilliam's] testimony."
The second granted issue concerns the
testimony of Ms. Yolanda Crossley, a friend of the family. The victim first
disclosed the abuse allegations to Ms. Crossley, who waited 1 week before
she disclosed the allegations to the victim's mother. That disclosure led
to the charges in this case.
The prosecution sought to introduce
Ms. Crossley's testimony as to what the victim told her on the grounds
that the victim's hearsay statements were admissible under Mil. R. Evid.
803(2) (excited utterance). After repeated unsuccessful attempts to lay
a proper foundation for this testimony, the military judge did not permit
Ms. Crossley to testify as to the victim's statements.
The prosecution then sought to use
the statements for the limited purpose of setting forth the sequence of
events to
explain why Ms. Crossley delayed for
a week in reporting the information to the victim's mother. The prosecution
stated that it was offering her testimony "not for the truth of the matter,
but to indicate then why Ms. Crossley took the action she did, or behaved
the way she did subsequently." The military judge agreed to admit the statements
for this limited purpose, emphasizing that he would "not consider anything
that she may testify to for the truth of what [the victim] told her."
In the context of testifying for this
limited purpose, Ms. Crossley provided information concerning her conversation
with the victim, and explained why she did not inform anyone about the
allegations for approximately a week. In the course of her testimony, she
was asked whether she thought the victim "was lying about what she told
you." There was no defense objection to this question, and Ms. Crossley
responded: "No. It didn't sound like a lie. It didn't sound like it was
made up. It didn't sound like it was rehearsed." Later in her testimony,
when the prosecution asked Ms. Crossley about appellants credibility,
the defense objected. The military judge sustained the objection, noting
that the witness could not serve as "a human lie detector machine."

B. Plain Error
The defense objections at trial concerned
the hearsay nature of the testimony offered by Ms. Crossley and Ms. Gilliam
as to the content of statements made by the victim and the victim's mother.
The propriety of the military judge's ruling on the hearsay questions is
not at issue in the present appeal. The granted issues concern other statements
made by the witnesses, not objected to by the defense, concerning assessments
of the credibility of the victim.
As a general matter, error may not
be predicated upon the admission of testimony unless there is a timely
objection on the record. Mil. R. Evid. 103(a)(1). As an exception, an appellate
court may take notice of plain error even though not brought to the attention
of the military judge if the appellant demonstrates that there was an error,
that the error was plain ("clear" or "obvious"), and that the error materially
prejudiced the substantial rights of the appellant. United States v.
Powell, 49 MJ 460, 463-65 (1998). See Art. 59(a), UCMJ, 10 USC
§ 859(a); Mil. R. Evid. 103(d).
When the issue of plain error involves
a judge-alone trial, an appellant faces a particularly high hurdle. A military
judge is presumed to know the law and apply it correctly, is presumed capable
of filtering out inadmissible evidence, and is presumed not to have relied
on such evidence on the question of guilt or innocence. See United
States v. Raya, 45 MJ 251, 253 (1996). As a result, "plain error before
a military judge sitting alone is rare indeed." Id.; see
United States v. Cacy, 43 MJ 214, 218 (1995) (citing United States
v. Cardenas, 9 F.3d 1139, 1156 (5th Cir. 1993), reh'g en banc denied,
115 F. 3d 1081 (1994), cert. denied, 511 U.S. 1134 (1994)).

C. Expert Testimony on Credibility
We have previously noted that an "expert
in child abuse may not act as a human lie detector for the court-martial.
. . . [C]hild-abuse experts are not permitted to opine as to the credibility
or believability of victims or other witnesses." United States v. Birdsall,
47 MJ 404, 410 (1998) (citing United States v. Harrison, 31 MJ 330,
332 (CMA 1990)); United States v. Arruza, 26 MJ 234 (CMA 1988);
United
States v. Petersen, 24 MJ 283 (CMA 1987). Such testimony exceeds the
scope of an expert's qualifications, violates the limits on character evidence
under Mil. R. Evid. 608(a), and usurps the exclusive responsibility of
the court-martial panel to weigh evidence and determine credibility. Birdsall,
47 MJ at 410. The same considerations would apply to conclusions as to
guilt or innocence offered by a nonexpert.

II. DISCUSSION
In Birdsall, we concluded that
prejudicial plain error occurred when the military judged admitted into
evidence expert-opinion testimony that the accused's sons' complaints of
sexual abuse were truthful. Id. The present case, however, is distinguishable
from Birdsall. In Birdsall, the case was tried before a court-martial
panel, where the prejudicial impact of testimony that arguably usurped
the panel's factfinding function would be at its greatest. Id. The
present case, however, was tried by a military judge sitting alone, who
presumably knew the well-established law concerning the limits of expert
testimony. See Raya, supra.
Moreover, while the testimony of the
witnesses in Birdsall focused on the credibility of the victim,
the witnesses in the present case were called by the prosecution in an
effort to have them testify as to the out-of-court statements made by the
victim, the victim's mother, and appellant. The statements touching upon
credibility were incidental to the prosecution's efforts to establish a
foundation for admissibility of the statements under pertinent exceptions
to the hearsay rule, see Mil. R. Evid. 803(2),(4), and (6), and
to explain the sequence of events.
As the Fifth Circuit noted in Cardenas,
a trial judge "is presumed to have rested his verdict only on the admissible
evidence before him and to have disregarded that which is inadmissible."
9 F.3d at 1156. Reliance on such a presumption is particularly appropriate
in the present case, where the military judge stated that he made his own
determination as to the victim's credibility after he had observed her
in-court testimony and the testimony of appellant. In that regard, we note
the military judge's statement that, in his view, the victim "was not lying
nor was she manipulat[ed] in this courtroom" and that he "found her to
be totally credible."

III. CONCLUSION
The military judge made it clear that
he would not consider Ms. Crossley's testimony for the truth of what the
victim may have told her and he emphasized that he was giving "very little
weight" to Ms. Gilliam's testimony. In that context, and in the setting
of a judge-alone trial where the military judge was able to assess the
credibility of the victim, we agree with the court below that any error
in admission of the statements at issue was not prejudicial.

IV. DECISION
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.

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