

   
   
   
   U.S. v. Huberty



UNITED STATES, Appellee
v.
Paul G. HUBERTY, Lieutenant Colonel
U.S. Air Force, Appellant
 
No. 99-0778
Crim. App. No. 32574
 
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
Argued March 2, 2000
Decided August 25, 2000
COX, S.J., delivered the opinion of the
Court, in which CRAWFORD, C.J., and SULLIVAN, GIERKE, and EFFRON, JJ.,
joined.
Counsel
For Appellant: Frank J. Spinner (argued);
Colonel Jeanne M. Rueth, Lieutenant Colonel James R. Wise
and Major Thomas R.Uiselt (on brief).
For Appellee: Major Bryan T. Wheeler
(argued); Colonel Anthony P. Dattilo, and Lieutenant Colonel
Ronald A. Rodgers (on brief).
Military Judge: James A. Young, III
 
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.
 
 

Senior Judge COX delivered the opinion of the
Court.
On August 12-22, 1996, Lieutenant Colonel Paul
G. Huberty was convicted by officer members of consensual sodomy, fondling
his genitals in a public area, indecent acts, and adultery, in violation
of Articles 125, 133, and 134, Uniform Code of Military Justice, 10 USC
§§ 925, 933, and 934. On February 11, 1997, the convening authority
approved the sentence of dismissal, confinement for 6 months, and a reprimand,
and the court below affirmed.
On December 1, 1999, we granted review of the
following issues:

I

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS
ABUSED ITS DISCRETION BY DENYING APPELLANTS REQUEST FOR AN IN CAMERA
PRODUCTION OF DR. SNYDERS CREDENTIALS RECORDS TO DETERMINE WHETHER
THEY CONTAINED RELEVANT INFORMATION TO SUPPORT A PETITION FOR NEW TRIAL.

II

WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL
ERROR WHEN HE RULED DEFENSE EXPERT TESTIMONY INADMISSIBLE WHILE ADMITTING
GOVERNMENT EXPERT TESTIMONY OVER DEFENSE OBJECTION.

FACTS
1. Background
Appellant is a 39-year-old Lieutenant Colonel
with over 18 years of active service. He is married and has three children.
The offenses occurred while he was assigned to Geilenkirchen NATO Air Base
in Germany. Appellants conviction for dishonorably fondling his genitals
arose out of an incident at a public swimming pool in the Netherlands involving
two Dutch women. The sodomy, indecent acts, and adultery occurred with
AH, a 17-year-old female who accompanied appellant and his family to Germany
as his legal ward.
Appellant pleaded not guilty to all offenses
and testified in his own defense. He denied exposing himself to the two
Dutch women, blaming them for being in the mens area. He also denied having
an improper sexual relationship with AH. At trial, the defense called Dr.
Terence Campbell, a civilian psychologist, to testify as an expert witness.
The Government also called an expert witness, Dr. Snyder, an Air Force
psychologist, to rebut Dr. Campbells testimony.

2. Issue I
While this case was pending before the court
below, appellant sought to ascertain from the Office of the Surgeon General
whether any adverse actions had been taken against Dr. Snyder. On September
11, 1998, the Office of the Surgeon General denied the request that had
been filed under the Freedom of Information Act, noting that the information
was protected by the confidentiality of medical records. 5 USC § 552(b)(3).
On January 7, 1999, appellant moved to have
the Air Force Court of Criminal Appeals order the production of the information
for an in camera review. The Government opposed the motion.
On January 21, 1999, the Air Force Court of Criminal Appeals issued an
order to have the Office of the Surgeon General provide the information
about Dr. Snyder, noting appellants right to appellate discovery. The
next day, the Air Force Court rescinded its order and denied appellants
motion for an in camera review of information regarding Dr.
Snyder. The order stated:

This order does not preclude appellant from
providing this Court specific information to support his "good faith basis"
that the requested materials are relevant to his trial by general court-martial
and likely contain information which may support a petition for new trial.
 

Appellant moved for an expedited reconsideration
of the order denying the request for an in camera review of Dr.
Snyders records. Appellant claimed he had hearsay information that Dr.
Snyders credentials were suspended, removed, or limited. In denying the
motion for an expedited reconsideration, the court below stated:

The sole basis for the request is appellants
belief, based on hearsay statements, that the individuals credentials
were limited, suspended, or removed. However, the appellant offers no information
that connects the alleged credentialing action against the medical care
provider with the testimony that the medical provider provided at his trial.
 

We granted review of these issues on December
1, 1999, and the case was argued on March 2, 2000. After hearing oral argument,
this Court issued the following order dated March 23, 2000:

That within 30 days of the date of this order,
the United States of America, appellee, shall take such action as is necessary
to locate and obtain those files in the possession of the United States
that relate to medical credentials of Captain Susan Snyder. Upon obtaining
such files, appellee shall forthwith provide them to this Court so that
an in camera inspection may be made to determine whether information
is contained therein that would reasonably support a petition by appellant
for a new trial.
 

3. Issue II
At trial, the defense proffered the testimony
of Dr. Terence Campbell, a civilian psychologist, concerning the allegations
of the indecent exposure at the swimming pool and appellants relationship
with AH. Dr. Campbell personally evaluated appellant, using the Minnesota
Multiphasic Personality Inventory  2 test (MMPI-2) and other psychological
tests. In addition, he interviewed appellant about his personal history
and was present in the courtroom during the presentation of the Governments
case.
The military judge allowed Dr. Campbell to
testify at length about the dynamics of appellants family and AHs family.
He did not allow Dr. Campbell to present evidence on the MMPI-2 results
or on Dr. Campbells conclusion that appellant is not an exhibitionist.
Dr. Campbell was prepared to testify that:
only an exhibitionist would have conducted himself in the manner that BV
testified; that exhibitionists will consistently produce certain test results
on the MMPI-2; that appellant did not produce those results; and, therefore,
that appellant is not an exhibitionist.
In excluding this testimony, the military judge
relied upon Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579
(1993), United States v. Nimmer, 43 MJ 252 (1995), and United
States v. Houser, 36 MJ 392 (CMA 1993). The reasons for his rulings
were:

1. The issue before the court was not whether
or not the accused was an exhibitionist, but whether, on one particular
occasion, he exposed himself in a public place. Dr. Campbells testimony
would not have assisted the factfinder.
2. The defense failed to establish that only
an exhibitionist would stand naked in a public place, making eye contact
with an unknown woman while masturbating.
3. The defense failed to establish the reliability
of the MMPI-2 in determining whether an accused acted in conformity with
the results thereof.
4. The probative value of any such testimony
would be substantially outweighed by the danger of confusion and waste
of time.
 

Dr. Snyder was a prosecution witness called to
rebut Dr. Campbells testimony concerning the family dynamics. She was
the staff psychologist who ran the mental health clinic at Geilenkirchen.
She testified over defense objection that appellants relationship with
AH, which Dr. Campbell deemed to be manipulative behavior by AH, could
also be consistent with appellants having groomed AH for sex. The defense
objected to the testimony as inadmissible profile evidence. The military
judge allowed questions concerning behaviors exhibited by appellant but
prohibited questions as to whether these behaviors were "typical of a sexual
perpetrator."

DISCUSSION
Issue I
Appellant asserts that the Court of Criminal
Appeals abused its discretion by denying appellants request for an in
camera production of Dr. Snyders credentials records to determine
whether they contained relevant information to support a petition for a
new trial. Art. 73, UCMJ, 10 USC § 873. The basis for the request
is appellants belief, based on hearsay statements, that Dr. Snyders credentials
were limited, suspended, or removed.
Pursuant to our Order of March 23, 2000, we
have inspected in camera the credentials file of Captain
Snyder. Based on our inspection, we have found no information that would
have been available to appellant at the time of trial to impeach or attack
the credibility of Dr. Snyder or which would support a petition for a new
trial.1 Accordingly, we
grant appellant no relief.

Issue II
Appellant asserts that the military judge committed
prejudicial error when he: (A) did not permit Dr. Campbells testimony
on the MMPI-2 results or on Dr. Campbells conclusion that appellant is
not an exhibitionist, and (B) when he permitted Dr. Snyder to testify
that appellants behavior was consistent with grooming.
The trial judge is the "gatekeeper," whose
role is to screen scientific evidence or testimony to make sure it is relevant
and reliable. General Electric v. Joiner, 522 U.S. 136, 142 (1997).
Abuse of discretion is the proper standard by which to review a decision
to admit or exclude expert evidence. Id. at 141. An appellate court
will not reverse unless the ruling is manifestly erroneous. Id.
at 142.
As we noted in United States v. St. Jean,
45 MJ 435 (1996), under the Military Rules of Evidence, expert testimony
is admissible if it is reliable, if it is relevant, and if its probative
value outweighs its prejudicial effect. 435 MJ at 444. In United States
v. Houser, we set out six factors to be considered by the military
judge when making this determination: (1) the qualification of the expert,
Mil.R.Evid. 702;(2) the subject matter of the expert testimony, Mil.R.Evid.
702;(3) the basis for the expert testimony, Mil.R.Evid. 703;(4) the legal
relevance of the evidence, Mil.R.Evid. 401 and 402;(5) the reliability
of the evidence, Mil.R.Evid. 401; and (6) whether the probative value of
the evidence outweighs other considerations, Mil.R.Evid. 403. 36 MJ at
397; see Daubert v. Merrell Dow Pharmaceuticals, supra.

a. Dr. Campbell
The military judge did not allow Dr. Campbell
to testify that: only an exhibitionist would have conducted himself in
the manner that BV testified; that exhibitionists will consistently produce
certain test results on the MMPI-2; that appellant did not produce those
results; and, therefore, that appellant is not an exhibitionist.
Appellant was unable to establish that the
challenged testimony has gained widespread acceptability in the scientific
community. In fact, Dr. Campbell testified that he was only aware of one
psychologist who attempted to offer a similar theory in another jurisdiction.
Dr. Campbell also admitted that there are no published studies supporting
the theory that psychological testing can exclude a person from a psychological
diagnosis of exhibitionism. Because this theory was unpublished (and thereby
not subjected to peer review), Dr. Campbell also acknowledged it had yet
to be subjected to testing. We hold, therefore, that the military judge
did not err in excluding this testimony because it was unreliable.
See United States v. LaTorre, 53 MJ 179 (2000).
Even if the military judge had admitted the
testimony that Dr. Campbell was unable to characterize appellant as an
exhibitionist, the remainder of the proposed testimony at issue was not
legally relevant. See Houser, supra. As the military
judge noted, "The issue before the court was not whether or not the accused
was an exhibitionist, but whether, on one particular occasion, he exposed
himself in a public place." At a minimum, Dr. Campbells proferred extrapolation
 that, because he could not characterize appellant as an exhibitionist,
he could absolutely eliminate appellant as someone who would commit the
charged conduct at the pool  would have constituted improper use of profile
evidence. See United States v. Banks, 36 MJ 150, 160-63 (CMA
1992).

b. Dr. Snyder
Appellants claim that the Governments expert,
Dr. Snyder, impermissibly testified that appellant fit a psychological
profile also lacks merit.
The military judge permitted Dr. Snyder to
testify that some of appellants behavior with respect to AH, which Dr.
Campbell deemed to be manipulative behavior by AH, could also be consistent
with appellants having groomed AH to have sex with him. The military judge
prohibited questions as to whether these behaviors were "typical of a sexual
perpetrator." The military judge also, on his own initiative, prohibited
the Government from pursuing a line of questioning concerning higher incidents
of sexual abuse in non-natural parent relationships.
The purpose of Dr. Snyders testimony was to
explain the behavior of AH with respect to appellant differently than
explained by Dr. Campbell. Where Dr. Campbell deemed certain behavior to
be indicative of manipulation by AH, Dr. Snyder offered an alternative
explanation  that the behavior was consistent with appellants having
groomed AH to have sex with him.
Even if it can be argued that Dr. Snyder's
testimony was "profile" evidence, that would not end our inquiry. In Banks,
we recognized that in some circumstances, "profile evidence" may become
logically relevant and thus admissible for some limited purposes. 36 MJ
at 162. In the instant case, it is clear that the testimony was admitted
to rebut the testimony of appellant's expert witness, Dr. Campbell, and
to explain that the victim's behavior was consistent with a theory that
appellant had "groomed her." The testimony was not admitted for the purpose
of showing that appellant fit the "profile" of a sex abuser. Thus, we find
no error.
The decision of the United States Air Force
Court of Criminal Appeals is affirmed.
FOOTNOTE:
1 RCM 1210(f)(1),
Manual for Courts-Martial, United States, (1995 ed.) provides that a new
trial may be granted only on grounds of newly discovered evidence or fraud
on the court-martial. RCM 1210(f)(2) provides that, "A new trial shall
not be granted on the grounds of newly discovered evidence unless the petition
shows that:

(A) The evidence was discovered
after the trial;
(B) The evidence is not such
that it would have been discovered by the petitioner at the time of trial
in the exercise of due diligence; and
(C) The newly discovered evidence,
if considered by a court-martial in the light of all other pertinent evidence,
would probably produce a substantially more favorable result for the accused."

RCM 1210(f)(3) provides that, "No
fraud on the court-martial warrants a new trial unless it had a substantial
contributing effect on a finding of guilty or the sentence adjudged."


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