

   
   
   
   U.S. v. George



IN THE CASE OF
UNITED STATES, Appellee
v.
Roger D. GEORGE, Aviation Ordnanceman
First Class
(Aviation Warfare),
U.S. Navy, Appellant
 
No. 99-0091
Crim. App. No. 97-1969
 
United States Court of Appeals for
the Armed Forces
Argued November 8, 1999
Decided March 3, 2000
GIERKE, J., delivered the opinion
of the Court, in which SULLIVAN, J., and COX, S.J., joined. CRAWFORD, C.J.,
filed an opinion concurring in the result. EFFRON, J., filed a dissenting
opinion.

Counsel
For Appellant: Lieutenant Mari-Rae
Sopper, JAGC, USNR (argued).
For Appellee: Captain Michael D.
Tencate, USMC (argued); Colonel K. M. Sandkuhler, USMC, Commander
Eugene E. Irvin, JAGC, USN, and Major Clark R. Fleming, USMC
(on brief).
Military Judges: T. L. Leachman and
G. N. Gonzalez



THIS OPINION
IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
 
 

Judge GIERKE delivered the opinion of
the Court.
A military judge sitting as a special
court-martial convicted appellant, pursuant to his pleas, of communicating
indecent language to a 17-year-old Japanese girl, in violation of Article
134, Uniform Code of Military Justice, 10 USC § 934. The military
judge sentenced appellant to a bad-conduct discharge, confinement for 2
months, and reduction to the lowest enlisted grade. In accordance with
a pretrial agreement, the convening authority approved the sentence but
suspended the reduction in grade below E-4 for 12 months. The Court of
Criminal Appeals affirmed in an unpublished opinion.
Our Court granted review of the following
issue:

WHETHER THE LOWER COURT ERRED WHEN
IT CONCLUDED THAT THE ERRONEOUS ADMISSION OF "FUTURE RISK" EVIDENCE DURING
PRESENTENCING WAS HARMLESS, WHERE THE IMPROPER HEARSAY TESTIMONY WENT DIRECTLY
TO REHABILITATIVE POTENTIAL AND APPELLANT RECEIVED A PUNITIVE DISCHARGE.

For the reasons set out below, we affirm.

Factual Background
Appellant wrote a sexually suggestive
letter to a 17-year-old Japanese girl who had lived with him and his wife
for one month as an exchange student. In the letter, appellant told the
girl that, while she was living in appellants house, he used to lie on
her bed and masturbate while smelling her soiled panties. He told her that
he had a pair of her panties with him and that he used them when he masturbated
and thought of making love to her. He asked her to mail him another pair
of soiled panties and a nude photograph. He offered to send her a nude
photograph of himself. He described in detail his fantasy of having sexual
intercourse with her.
After the Japanese girl reported the
incident to the Foundation for International Understanding, her sponsoring
organization, the matter was referred to the Naval Criminal Investigative
Service (NCIS). Appellant was interviewed by an NCIS agent and admitted
taking a pair of the girls panties while she was living with appellants
family. He admitted sending the girl the sexually explicit letter. He also
admitted writing a second letter that was much more sexually explicit.
He had not yet mailed the second letter when he was interviewed by NCIS
agents. The second letter describes in detail how appellant fantasized
engaging in sexual intercourse, fellatio, and cunnilingus with the girl.
The NCIS searched appellants berthing
and work areas aboard his ship and seized the second letter and a pair
of the girls panties. The NCIS agents then searched appellants house
and seized some pornographic materials from appellants computer. They
interviewed appellant again, and he admitted downloading pornographic materials
from the Internet. The military judge received this statement in evidence
over defense objection. The prosecution conceded that it was not unlawful
for appellant to possess the materials, and thus it argued that possession
of the pornography was not "uncharged misconduct." The military judge stated
that he would not consider appellants possession of pornography as "uncharged
misconduct." Regarding the second letter, he said, "I will consider it,
but not as uncharged misconduct. I think, obviously, uncharged misconduct
has the potential of unfairness because the factfinder may punish for that,
but Im not punishing -- I will not consider this in punishing, but certainly
I think its something that I think I should review. I think it has some
relevance here."
At the time of his court-martial, appellant
had almost 16 years of honorable service, including service in a combat
zone, and was a First Class Petty Officer (E-6). In May of 1989, 7½
years before this incident, appellant was convicted in a civilian court
of 6 counts of indecent exposure. After this civilian conviction, a therapist
diagnosed him as "not at risk to reoffend" and gave him "an excellent prognosis
for successful completion of treatment." He was recommended for retention
in the Navy, conditioned on successful completion of a sex-offender treatment
program.
During his sentencing hearing, the
Government presented testimony from a social worker. She testified that
appellants prognosis for rehabilitation was "guarded" and "questionable."
In explaining the basis for her conclusion, she mentioned, over defense
objection, that another therapist had concluded that appellant was "predatory
in nature." The military judge overruled the defense hearsay objection
on the ground that the basis for the social workers conclusion was admissible
under the medical-records or the business-record exception. See
Mil. R. Evid. 803(4) and 803(6), Manual for Courts-Martial, United States
(1995 ed.).* The social worker also testified
that following his civilian conviction for indecent exposure, appellant
had failed to "re-initiate treatment" after he was transferred from Washington
State.
In his unsworn statement, appellant
explained that he did not reinitiate therapy after his reassignment because
his wife was no longer employed, CHAMPUS would not pay for therapy, and
he could not afford to pay for it. He stated that the therapy cost $100
an hour.

Discussion
Appellant now asserts that admission
of improper hearsay evidence violated the Sixth Amendment and was not harmless
beyond a reasonable doubt. Final Brief at 4. The Government concedes that
the prosecution improperly used the social workers testimony to smuggle
hearsay into the sentencing proceeding and that the error was constitutional
in nature. The Government argues, however, that the error was harmless
beyond a reasonable doubt in view of the nature of the misconduct, appellants
civilian conviction, and the admissible portions of the social workers
testimony. Answer to Final Brief at 5-7.
Mil. R. Evid. 705 permits an expert
to offer an opinion "without prior disclosure of the underlying facts or
data, unless the military judge requires otherwise." The rule further provides:
"The expert may in any event be required to disclose the underlying facts
or data on cross-examination." In this case, the underlying diagnosis of
appellants predatory nature was disclosed on direct examination, not cross-examination.
In United States v. Neeley,
25 MJ 105, 106-07 (1987), cert. denied, 484 U.S. 1011 (1988), this
Court addressed "the problem of smuggling hearsay . . . under the guise
of" showing the underlying basis for expert testimony. The Court opined
that Mil. R. Evid. 403 is the appropriate vehicle for weighing the probative
value of showing the basis for expert opinion against the likelihood of
unfair prejudice.
In United States v. Harris,
46 MJ 221, 225 (1997), this Court said, "Where eliciting the basis for
an expert opinion will place otherwise inadmissible evidence before the
court members, the military judge should apply the balancing test under
Mil. R. Evid. 403 to determine if the prejudicial impact of the inadmissible
evidence outweighs the probative value of showing the basis for the expert
opinion."
In United States v. Schap, 49
MJ 317, 325-26 (1998), this Court said that "Mil. R. Evid. 403 is a judges
tool for preventing a party from unfairly smuggling hearsay, either
as a basis for an experts opinion or under the various hearsay exceptions."
We also said: "Ultimately, the military judge retains considerable discretion
in deciding when the prejudice is too great to permit admission of the
proffered evidence."
Evidence of the depths of an accuseds
sexual problems is a proper matter for consideration on sentencing. See
United States v. Ciulla, 32 MJ 186 (CMA), cert. denied, 502
U.S. 857 (1991); United States v. Mullens, 29 MJ 398, 400 (CMA 1990).
Likewise, evidence of future dangerousness is a proper matter under RCM
1001(b)(5), Manual, supra. United States v. Williams, 41
MJ 134, 137-39 (CMA 1994).
In appellants case, the court below
held that the military judge erred, and the Government conceded that the
prosecution committed constitutional error by smuggling hearsay into the
sentencing proceeding. Thus, the lower courts conclusion that the military
judge erred is the law of the case. See United States v. Grooters,
39 MJ 269, 272-73 (CMA 1994).
In United States v. Bins, 43
MJ 79, 86 (1995), this Court set out the test for harmlessness when improper
evidence is received: whether the evidence may reasonably have had an effect
on the decision. If it did not, then the Court may conclude that the error
was harmless beyond a reasonable doubt.
Both sides have characterized this
case as a harmless-error case instead of a sentence-reassessment case.
We agree. Our standard of review for harmless error is de novo.
See Rushen v. Spain, 464 U.S. 114, 120 (1983) (whether constitutional
error was harmless is question of law). See also 2 Childress &
Davis, Federal Standards of Review § 7.03 at 7-10 (3d ed. 1999)
(de novo review of constitutional harmless error). Cf. United
States v. Davis, 48 MJ 494, 495 (1998) (sentence reassessment reviewed
for abuse of discretion or obvious miscarriage of justice).
In view of the minimal period of confinement
adjudged, we focus on the question whether there is a reasonable likelihood
that the military judge would not have imposed a bad-conduct discharge
if the social worker had not mentioned another therapists opinion that
appellant was "predatory in nature." We conclude that there is no reasonable
likelihood that appellant would not have received a bad-conduct discharge,
even if the evidence of appellants diagnosis as "predatory" had been excluded.
We arrive at this conclusion after considering the following:
(1) Appellants almost 16 years of
honorable service, including service in a combat zone;
(2) His previous conviction for 6 counts
of indecent exposure;
(3) His prognosis for rehabilitation
after his civilian conviction;
(4) The nature of appellants misconduct
involving graphic sexual overtures to a young foreign exchange student;
(5) His preparations to send another
even more offensive letter to the girl; and
(6) The admissible portions of the
social workers testimony at this court-martial, setting out her prognosis
for rehabilitation as "guarded" and "questionable."
Despite his many years of honorable
service, appellant was a repeat offender. He had been given an opportunity
to salvage his Navy career in 1989, but he put his career at risk by committing
the offense at issue in this case. He was no longer a good candidate for
rehabilitation. The social workers improper reference to his predatory
nature pales in comparison to his record of sexual misconduct and the seriousness
of his offense.
Having concluded that there is no reasonable
likelihood that the military judges error affected the sentence, we hold
that the error was harmless beyond a reasonable doubt.

Decision
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
FOOTNOTE:
* All
Manual provisions are cited to the version applicable at trial. The 1998
version is unchanged, unless otherwise indicated.


CRAWFORD, Chief Judge (concurring in
the result):
There was no error in this case.
During the sentencing portion of the
trial, Ms. Lorie Fortin was called by the prosecution to testify about
appellants rehabilitative potential. The Government did not request that
the court recognize her as an expert. She stated she worked at the Family
Advocacy Center, had a Master's Degree in Social Work, and was licensed
in California as a clinical social worker in child sexual abuse. Her job
was to "assess alleged offenders for treatment rehab potential."
Ms. Fortin testified that appellant
had been referred to her in the "December January 97" time frame." Id.
(Appellant was sentenced in August 1997.) She testified that she worked
with a number of other professionals including Dr. Fonseca, Dr. Sussman,
and Dr. Landis, as a team in treating offenders. The team members examined
progress reports, update reports, and had conversations concerning treatment.
Ms. Fortin testified that the team
member who conducted appellants psychological evaluation told her and
wrote in appellants medical record that appellant was "predatory in nature."
A defense objection based on hearsay was overruled under either the medical
records or business records exception to the hearsay rule. Id. The
following is the exchange which took place:
Q. Now, you bring up this prin----
A. Conviction.
Q. ---- therapy or treatment, do you
know anythinghas he told you or have you spoken with his other therapist
about that treatment?
A. I've gotten some information from
him and I also talked to his prior therapist and got their prior reports.
Q. Okay. And was that a positive-type
treatment?
A. It was mixed. The person that did
his psychological evaluation, which his current therapist as well, feel
he's predatory in nature, which, again----
DC: Objection, Your Honor. This is
hearsay.
MJ: Why is it not hearsay, Lieutenant
Knapp?
TC: Your Honor, she's going to a medical
conclusion. Not to what this person is saying so much as what his--he's
been diagnosed with. So it's more of a condition rather than what his--what,
perhaps, this person is saying just as a statement.
MJ: Yeah. Isn't there a medical-records
exception to the hearsay rule, Lieutenant Knapp?
DC: There is--one moment, Your Honor.
MJ: I think as long as a witness is
only repeating what would be in a medical record, if it is hearsay, I think
that would be an exception to it.
DC: There is a statement for purposes
of medical diagnosis or treatment.
MJ: Isn't the treatment also--record
of treatment also an exception to the hearsay rule there? Or if it doesn't
fall under that, would it not fall under the business-record exception?
Wouldn't these be records that are normally kept in the normal course of
business?
DC: Well, I don't believe we have a
business record, sir. If she's, again, testifying from what someone else
told her about what was on that business record---
WIT: No. I have it.
DC: ---- then that would be hearsay.
WIT: I do have it.
MJ: Do you have that record?
WIT: I have the records that they wrote
in my---
MJ: You actually read that record?
WIT: Yeah.
MJ: I'll overrule the objection at
this time since the accused [sic] has personal knowledge of the records.
Q. So you're taking this--your information--from
reading the medical records yourself?
A. From the treatment reports that
were done on him previously that the doctors wrote.
Q. Thank you. Would you say from reading
all of the reports that you've read and from your treatment and consulting
with the other physicians that A01 George has a high or low risk level
of repeating the same or similar behavior?
DC: Objection, Your Honor. Foundation.
I'm not sure if we know that Ms. Fortin is qualified to make that sort
of determination.
TC: Sir, she's testified she's a licensed
social worker, she's worked just with Navy for at least four years, perhaps
even longer, I believe, and the fact that she's been treating this specific
person.
MJ: I'll overrule that, Lieutenant
McNair. I think she's qualified to give that opinion. Please answer the
question.
WIT: I would say he's moderate to high
risk at this time to re-offend.
R. 52-53
The court below held that "this licensed
social worker was qualified to provide her observations of the nature of
appellant's problems and how well he was responding to the rehabilitative
therapy.... Her observations as to his history of inappropriate behavior
were directly related to understanding the appellant's rehabilitative potential."
Unpub. op. at 6.
In the alternative, the court held
"that there was no reasonable possibility that he would have avoided a
bad-conduct discharge." The court further reasoned that it was "confident
that the military judge did not give undue weight to th[e] erroneously
admitted testimony." Id. at 7.
The defense contends the judge erroneously
considered hearsay from a witness testifying concerning appellants sentence.
Final Brief at 6.
Both Military and Federal Rule of Evidence
702 permit an individual to be qualified as an expert based on "knowledge,
skill, experience, training, or education...." Ms. Fortin was clearly qualified
under this standard. There is no requirement*
for the prosecutor to tender Ms. Fortin as an expert based on her education,
training, and experience. Mil.R.Evid. 702. In the past, however, social
workers have been recognized as experts. United States v. Johnson,
35 MJ 17 (1992)(social worker/psychotherapist held qualified to give her
opinion that child suffered trauma  other testimony admissible without
objection); United States v. Peel, 29 MJ 235, 241 (1989)(chief social
worker with doctor of philosophy degree could testify as to significance
of delayed reporting by rape victim), cert. denied, 493 U.S. 1025
(1990).
Once qualified, an expert may base
her opinion on hearsay information made known to her during the course
of treatment. Mil.R.Evid. 703. Specifically, we have recognized that a
social worker may base her opinion not only on her observations but also
upon documents and reports of others, United States v. Raya, 45
MJ 251, 253 (1996), when statements are reasonably related to the treatment
appellant was receiving. United States v. Rollins, 862 F.2d 1282
(7th Cir. 1988) (admitting as part of the basis for an FBI agent's
expert opinion on the meaning of code language, the statements of an informant).
Further, we have held that "an experts opinion may be based upon personal
knowledge, assumed facts, documents supplied by other experts, or
even listening to the testimony at trial." United States v. Houser,
36 MJ 392, 399 (1993)(emphasis added). Raya and Houser support
the judge's overruling the defense objection based on hearsay.
Additionally, RCM 1001(b)(5) was greatly
modified in 1994 to allow "[a]n opinion regarding the accuseds rehabilitative
potential...." In this instance Ms. Fortin had worked with appellant for
about 8 months and certainly was qualified to render an opinion as to appellants
rehabilitative potential based on her observations and the reports she
had received. The testimony that appellant is "predatory in nature," when
considered in context, was testimony as to his future dangerousness. This
type of evidence has been permitted by this Court, United States v.
Williams, 41 MJ 134 (1994), and the Supreme Court, id. at 139.
FOOTNOTE:
* R. Carlson
& E. Imwinkelried, Dynamics of Trial Practice 228 (2d ed. 1995)
(Most "judges follow the majority view" that after eliciting the "qualifications,
you proceed immediately to the expert testimony" without tendering the
witness.); Commentary, Ky. R. Evid. 702 (identical to Fed.R.Evid. 702)
("[T]he practice of tendering a witness [as an expert] should be discontinued";
this commentary notes "that the judges annointing" the witness should
be discontinued because it could be misinterpreted as approving the witness
testimony), cited in R. Carlson & E. Imwinkelried, supra at
229; ABA Civil Trial Practice Standards 17 at 46 (1998)("Except in ruling
on an objection, the court should not, in the presence of the jury, declare
that a witness is qualified as an expert or to render an expert opinion,
and counsel should not ask the court to do so."). See also
Berry v. City of Detroit, 25 F.3d 1342, 1351 (6th Cir.
1994); United States v. Bartley, 855 F.2d 547, 552 (8th
Cir. 1988).


EFFRON, Judge (dissenting):
As indicated in the majority opinion,
this case does not involve the question of whether appellant's sentence
was appropriate; rather the question is whether erroneous admission of
a hearsay statement during the sentencing proceeding was harmless beyond
a reasonable doubt. I agree with the framework of the majority's analysis
but not with the result.
Erroneous admission of a hearsay statement
that a person is "predatory in nature" can have a devastating impact on
sentencing, particularly when the statement is characterized as a medical
record. Taking into account the positive and negative evidence cited by
the majority, I do not agree that the error was harmless beyond a reasonable
doubt in the context of sentencing a sailor with almost 16 years of service
for the offense of using indecent language.

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