

   
   
   
   U.S. v. Latorre



UNITED STATES, Appellee
V.
Richard M. LATORRE, Jr., Technical Sergeant
U.S. Air Force, Appellant
 
No. 99-0499
Crim. App. No. 33262
 
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
Argued February 2, 2000
Decided July 14, 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: Norman R. Zamboni (argued);
Colonel
Jeanne M. Rueth and Lieutenant Colonel James R. Wise (on brief);
Captain
Tishlyn E. Taylor.
For Appellee: Major Bryan T. Wheeler
(argued); Colonel Anthony P. Dattilo and Lieutenant Colonel Ronald
A. Rodgers (on brief); Major Kenneth A. Arnold.
Military Judge: Steven A. Gabrial

 

This opinion is subject to
editorial correction before publication.
 

Senior Judge COX delivered the opinion of the
Court.
On January 15 and 16, 1998, a military judge
sitting alone as a general court-martial convicted appellant, consistent
with his pleas, of 2 specifications of committing indecent acts upon the
body of a female under 16 years of age, in violation of Article 134, Uniform
Code of Military Justice, 10 USC § 934. He was also convicted of 1
specification of committing sodomy with a child under 12 years of age,
in violation of Article 125, UCMJ, 10 USC § 925. Because he had no
plea agreement, the maximum potential sentence to confinement was life.
See
para. 51e(3), Manual for Courts-Martial, United States (1998 ed.). However,
the military judge sentenced him to 12 years' confinement, along with a
dishonorable discharge and reduction to the grade of E-1.
The convening authority approved the sentence,
but pursuant to Article 58b(b), UCMJ, 10 USC § 858b(b), he waived
for 6 months, a portion of appellant's automatic forfeitures for the benefit
of appellants dependents. The Court of Criminal Appeals affirmed the findings
of guilty and the sentence in an unpublished opinion.
We granted review to determine if the military
judge erred by allowing the Governments expert witness to testify on sentencing
about the possibility of undiscovered crimes committed by sex offenders
generally.1 We
hold that admission of this expert testimony, if error, was harmless error.
Cf.United
States v. George, 52 MJ 259 (2000).

BACKGROUND
Appellant lived next door to a young girl,
AS, who came to appellants house to play when his two young sons visited
him. In September of 1997, when AS was 7, appellants son, BL, saw his
father engaged in sexual acts with AS. BL immediately told his brother,
JL, and later his mother about what he had witnessed. During questioning
by OSI agents, appellant admitted that he had been committing sexual indecencies
against AS on numerous occasions for a year, and that he had first become
sexually attracted to AS when she was 6.

DISCUSSION
During the sentencing hearing, one government
witness was Dr. Roby, a psychologist with expertise in evaluating sex offenders
and their victims. Earlier in the proceeding, the military judge made note
of a potential objection the defense had raised during a conference under
RCM 802, Manual, supra. He said:


The defense indicated that they had
an objection, there was a potential objection to one of the government
witnesses, the expert witness, testifying as to recidivism rates and predictions
as to their clients potential for rehabilitation and that sort of thing,
on
the basis that the expert had an inadequate basis upon which to express
such an opinion. I told counsel that we would resolve that at the appropriate
time.


(Emphasis added.) Thus, the judge specifically
invited counsel to renew the objection as evidence was proffered, it being
a judge-alone trial.
Throughout 60 pages of testimony, Dr. Roby
discussed without defense objection sex-offender treatment programs and
pedophile characteristics. He also discussed, without objection, the problems
primary and secondary victims2
of sexual abuse encounter, and recidivism rates for sexual offenders. Dr.
Roby "estimated" a psychological diagnosis for appellant, and speculated
about treatment programs and treatment lengths suitable for appellant.
During cross-examination, defense counsel asked
Dr. Roby to discuss offender treatment programs and his suggestions for
treatment. Dr. Robys response included the following:


I believe that there should be a way
of assessing honesty with the individual. The way that we typically do
that is we actually have the offenders go through a series of polygraph
examinations as we are going through the program. The initial one is to
try to help bring out any other victimizations or inappropriate behavior
that has occurred that they have not admitted to at that point in time.
And, the vast majority do come up with new information that was
not available to the courts at the time they were sentenced.


(Emphasis added.)
On re-direct, the Government asked Dr. Roby
to define "new information." Only here did defense counsel object, saying,
"Sir, Im going to object to this line of reasoning. I think that the idea
that we are going to be getting into something to suggest that Sergeant
LaTorre has got other victims out there, or has done more, I think is highly
prejudicial and should not be permitted."
Trial counsel argued that it was the defense
that opened this door, and the judge responded: "Well, I'll let you ask
the next question, and see where it goes, because defense counsel did ask
questions about that." So the judge overruled the defense objection "at
this point." Accordingly, trial counsel was allowed to ask the witness,
"[W]hen an offender enters treatment, what type of new information is elicited?"
To which, Dr. Roby responded:


We usually get further information about
other inappropriate acts, oftentimes felonious in nature. We ended up adopting,
within the past three years, the use of the polygraph, due to the fact
that we found that oftentimes, just utilizing the polygraph, regardless
of what came out from it, caused the individual to suddenly have a greater
ability in terms of being able to remember other offenses that they have
committed. We just reviewed thirty cases that we sent over for polygraph
exams. Out of those thirty cases, twenty-one individuals came up with new,
felonious
offenses that they had never disclosed, nor did anyone else have any
understanding of or knowledge about.


Again, it was the defense, on recross-examination,
who extracted from Dr. Roby the fact that the "felonious offenses" he referred
to were sexual offenses.
At no time, either during opening statement,
argument on the objection, closing argument, or any other point in the
proceeding, did trial counsel suggest that the witness's testimony established
or implied that appellant had committed offenses against other children.

A. Receipt of Expert Testimony
Mil.R.Evid. 702 and 703, Manual, supra,
govern expert testimony. These rules state that, if special knowledge testimony
is necessary to assist the fact finder, experts may testify using information
reasonably relied upon by other experts in the particular field. The Supreme
Court clarified these rules in Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993).3
There, the Supreme Court held that the basis of expert opinion must be
scientifically sound: "Proposed testimony must be supported by...'good
grounds, based on what is known." Id. at 590. The Court gave various
factors for consideration in this analysis, such as whether the theory
has been tested, whether it has been reviewed by others in the area, and
whether it has gained general acceptance. Id. at 593-96. The Court
went on to say that another requirement of the rules is that proffered
expert testimony must also be relevant and helpful to the fact-finder in
resolving the issue in question.
One concern we must deal with is the fact that
the discussion regarding the expertise of the witness and his ability to
express his opinions about this case took place "off the record," at a
conference under RCM 802. No specific objection was made on the record.
"Mil.R.Evid. 103(a)(1) requires a timely objection to preserve an evidentiary
issue for appellate review, unless the evidentiary ruling rises to the
level of plain error." United States v. Cardreon, 52 MJ 213, 216
(1999). To resolve this appeal, however, we will assume that appellant
made a timely objection to the pertinent portion of the expert's testimony,
based on foundation. Further, although it was appellant who opened the
door to the testimony, we will assume that the Government had a duty to
lay a foundation for the testimony it elicited.
Under such circumstances, we would agree that
the Government did not lay an adequate foundation. There was no showing
that Dr. Robys methods or conclusions about offenders were accepted by
the scientific community at large or had even been reviewed by it. Apparently,
he was basing his conclusions on his own work with a sex offender program
at Utah State Prison.4Undoubtedly,
his description of his study was too cursory, and his group too limited,
to meet the Daubert standards in order to project broad conclusions on
others.5
At the same time, it is not apparent how this
study, per se, was relevant or useful. Even if we accept
as scientific fact that 21 of 30 apprehended pedophiles has committed sexual
offenses against other children, which group does appellant (or anyone)
fall into, the 21 or the 9?6
The Government adduced no testimony or other evidence to indicate that
there was a way of predicting this.

B. Prejudice
When determining whether evidence unduly prejudiced
appellant, we use the four-prong analysis formulated in United States
v. Weeks, 20 MJ 22, 25 (CMA 1985), and evaluate: (1) the strength of
the Governments case; (2) the defense theory; (3) the materiality of the
evidence; and (4) the quality of the evidence.7
Regarding the strength of the government case,
appellant was caught by his son in the act of sodomizing a 7-year old girl.
Upon interrogation, he admitted that he had sexually abused her periodically
for over a year. In addition to the testimony of Dr. Roby, there was testimony
from AS's family and teacher about the trauma she had experienced and the
effect it had on her and her family. Most compelling, however, was the
actual testimony of AS and appellant's two sons and the obvious misery,
anger, and confusion that this caused all three of them.
Regarding the defense case for leniency, the
best appellant can argue is that there was only one victim and that he
felt remorse.8
He also argues, without scientific support, that he can be readily rehabilitated
and, thus, required little incarceration.
As for the materiality and quality of the evidence,
we must strain a bit to even find the "evidence." Certainly, Dr. Roby never
expressed the opinion that appellant had committed, or must have committed,
offenses against other victims, nor did the Government advance such an
argument. Further, the military judge's noncommittal remark, "Well, I'll
let you ask the next question, and see where this goes, because defense
counsel did ask questions about that," hardly belies a jurist who has lost
all notions of relevance and materiality. We presume that the judge took
the information for what it was worth, and nothing more. See United
States v. Raya, 45 MJ 251, 253 (1996).
The decision of the United States Air Force
Court of Criminal Appeals is affirmed.
FOOTNOTES:
1 Specifically,
the issue before this Court is:

WHETHER THE MILITARY
JUDGE ERRED BY ALLOWING THE
GOVERNMENT'S EXPERT
WITNESS TO TESTIFY THAT SEX
OFFENDERS USUALLY COMMIT
SEVERAL CRIMES PRIOR TO
THE CRIME FOR WHICH
THEY ARE CURRENTLY BEING
PROSECUTED, AND THAT
SOME SEX OFFENDERS LEARN
HOW TO "GET AWAY" WITH
THEIR CRIMES SO THAT
THEIR OFFENSES ARE NOT
DISCOVERED.

2
Here, AS was a "primary victim" of the abuse, while JL and BL were "secondary
victims" because they were not directly harmed by the abuser, but still
suffered effects.
3
Specifically, the Court addressed Fed.R.Evid. 702 and 703, which are the
Military Rules of Evidence equivalent in civilian federal courts.
4
See
Kumho Tire Co., Ltd. v. Carmichael, 119 S.Ct. 1167 (1999).
5
See,
e.g.,
Mac Sales Inc. v. E.I. du Pont de Nemours & Co., 24 F.3d 747,
752 (5th Cir. 1994), where the Court of Appeals affirmed the
lower courts finding that expert testimony may be excluded if it lacks
adequate foundation. In that case, the expert testified about foreign and
domestic markets when he had actually only studied the domestic market.
6
On appeal, appellant also complains of a fragment of Dr. Roby's testimony
wherein he stated that some pedophiles who have been caught, incarcerated,
and ultimately released are able to re-offend without being discovered,
"[because] they've been educated by the system as to how now they can get
away with it[.]" This testimony came in, without renewed defense objection,
after the witness had testified extensively about recidivism among pedophiles,
under questioning by both counsel and the military judge. We hold that
this objection was waived and, in any event, the evidence was cumulative
a large quantity of evidence already received. United States v. Cardreon,
52 MJ 213, 216 (1999).
7
While the test was formulated to determine prejudice at guilt or innocence
phase of trial, we feel it also appropriate in this context.
8
Neverthless,he
projected blame onto her and other forces outside of himself. Trial defense
counsel even conceded during closing argument that appellant's confession
was "minimiz[ing]."


Home
Page  |  Opinions
& Digest  |  Daily
Journal  |  Scheduled
Hearings
