Petition for Writ of Certiorari — Nelson v. United States

EDI

TOR'S NOTE

THE

AT

FOLLOWING

THE TIME OF

PAGES WERE

FILMING,

POOR HARD COPY

IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

I BE ISSUED,

WIL,

In the Supreme Court of the Bnited

OCTOBER TERM, 1987 ;

ERNEST L. NELSON, PETITIONER,

Vv.

UNITED STATES OF AMERICA, RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

LEO L. SERGI

Colonel, Office of The Judge

Advocate General

United States Air Force

HQ USAF/JAJD *

Bldg 5683

Bolling AFB, DC 20332-6128

(202) 767-1562

Counsel of Record

and

LYNNE H. WETZELL

Captain, Office of The Judge

Advocate General

United States Air Force

— ee eee lial ies a p —— pinincne bem aa re

QUESTIONS PRESENTED

I. WHETHER THE MILITARY JUDGE ERRED TO

THE SUBSTANTIAL PREJUDICE OF THE PETI-

TIONER BY ALLOWING AN EXPERT WITNESS TO

TESTIFY IN THE PROSECUTION’S CASE-IN-CHIEF

TO THE GENERAL TRUTHFULNESS OF CHILD

SEXUAL ABUSE VICTIMS, WHERE SUCH

EVIDENCE WAS NOT OFFERED TO REBUT ANY

ISSUE PREVIOUSLY RAISED BY THE DEFENSE?

Il. WHETHER PETITIONER WAS DENIED DUE

PROCESS OF LAW BY THE TRIAL JUDGE’S ADMIS-

SION, DURING PROSECUTION’S CASE-IN-CHIEF,

OF CUMULATIVE AND CONSISTENT OUT-OF-

COURT STATEMENTS BY THE VICTIM, WHERE

THE VICTIM WAS NEVER CROSS-EXAMINED BY

THE DEFENSE?

(i)

—- =~ ll

TABLE OF CONTENTS

es a iw dete ea ee keen

Ee

Constitutional Provision Involved ..............

re

Reasons for Granting the Writ

ea ae ves e nda u cee uaseee

ee aye k eke s ap easen

Ne ep habe sede

TABLE OF AUTHORITIES

United States Constitution:

ee aesn sees

United States Code:

a

United States Supreme Court Decisions:

Kotteakos v. United States, 328 U.S. 750, 66

Bam. baee, oe ee. 1557 (1946) .........

United States v. Young, 470 U.S. 1, 105 S. Ct.

ES EE |

United States Federal District Court Decisions:

United States v. Binder, 769 F.2d 595 (9th Cir.

ee ie Wik 0.4 40040 0a 6

United States v. Jensen, 608 F.2d 1349 (10th

RI arg ale rr

United States v. Marabelles, 724 F.2d 1374

Cee eee wee sis

United States Court of Military Appeals Decisions:

United States v. Cameron, 21 M.J. 59

RT a er

Co

10

(iv)

United States Court of Military Appeals .

Decisions — Continued

United States v. Fischer, 21 M.J. 327 (C.M.A.

Ns os ec 8 ok Oe ee oe es

United States v. Gipson, 24M.J. 246(C.M.A.

os cane aban e ou ek deere ees

United States v. Nelson, 25 M.J. 110, (C.M.A.

, Ree er Perr re area ariaE

United States v. Peterson, 24 M.J. 283

Sa SEE ei aeaecusiwiadanaaeueeds

United States v. Snipes, 18 M.J. 172 (C.M.A.

BR ye Par nme Genre 4, 5, 6,

United States v. White, 25 M.J. 50 (C.M.A.

SE Cae ee aee eae ee een eakoeeauns

Air Force Court of Military Review Decisions:

United States v. Nelson, 21 M.J. 711

(A.F.C.M.R. 1985) aff'd, 25 M.J. 35

a Bea tres ee ee eee rea

State Supreme Court and Appellate Court Decisions

People v. Bledsoe, 36 Cal. 3d 236, 681 P.2d

Be EE eS eea kee eae eee eae ees

People v. Koon, 713 P.2d 410 (Colo. App.

REAR RS Se an een a eee

People v. Roscoe, 215 Cal. Rptr. 45, 168 Cal.

Pe Fe Fe I ek co cade abe ee ends

Tevlin v. People, 715 P.2d 338 (Colo. 1986) ..

State v. Correra, 430 A.2d 1251 (R.1. 1981) ..

~ State v. Logue, 372 N.W. 2d 151 (S.D. 1985) .

State v. McCafferty, 356 N.W. 2d 159, 164

Ge Baty ae here ieee eg

State v. Middleton, 294 Or. 427, 657 P.2d 1215

OU fare stoke res 8b oid ade Dylibaey

State v. Myers, 359 N.W. 2d 604 (Minn.

ME acs ew nea aude i nasksedeukeeen

Page

(v)

Page

State Supreme Court and Appellate

Court Decisions — Continued

State v. Myers, 382 N.W. 2d 91 (lowa 1986) .. 4, 6, 7

State v. Perkins, 444 N.E. 2d 878 (Ind. App.

SE aa. Sew ak e Feb casa od eae oaks 4

State v. Seever, 41 Crim. L. Rep. (BNA) 2312

(Mo. Sup. Ct. June 14, 1987) ............ 9

Miscellaneous:

Federal Rule of Evidence 704.............. 5

Manuai for Courts-Martial, 1984

FE ee eer 10

eS Ferree 10

hoc ok rea deanewew ad 5,9

as se ahaw ane ac eamn 5

eS ee Sy | voteaan el Gl 4

ae I rs sv wcee wees reais 4

a i I es naa vs aw wk eee 4,5

Mil. R. Evid. 801(d)(1)(B) ............. Yy

a ee ree y

S. Saltzburg, L. Schinasi, D. Schlueter,

Military Rules of Evidence Manual (2nd ed.

Pe Gace ks ao evacn a Nae aeee a een aad 9

In the Supreme Court of the Gnited States

OCTOBER TERM, 1987

ERNEST L. NELSON, PETITIONER,

Vv.

UNITED STATES OF AMERICA, RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

The petitioner, Ernest L. Nelson, respectfully prays that

a writ of certiorari issue to review the decision of the

United States Court of Military Appeals entered in this

proceeding on September 28, 1987.

OPINIONS BELOW

The opinion of the United States Court of Military Ap-

peals is reported at 25 M.J. 110(C.M.A. 1987) (Appendix

A). The decision of the United States Air Force Court of

Military Review is reported at 21 M.J. 711 (A.F.C.M.R.

1985) (Appendix B).

JURISDICTION

The decision of the United States Court of Military Ap-

peals was rendered on September 28, 1987. The jurisdic-

tion of this court is invoked under 28 U.S.C. § 1259.

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment of the Constitution of the United

States provides: “No person shall be . . . deprived of life,

liberty, or property without due process of law. . .”

(1)

2

STATEMENT OF THE CASE

The alleged victim in the case was Petitioner’s six-year-

old stepdaughter, Veda Jane Lansford. While visiting her

grandmother in June 1984, Veda Jane complained of pain

in her “private parts”. (R. 176). Suspicious of sexual

~ abuse, the grandmother took Veda Jane to the hospital at

Blytheville Air Force Base, where she was seen by Doctor

Chastain, the Chief of Pediatrics. (R. 175-176). Dr. Chas-

tain found no physical evidence of sexual abuse. (R. 176).

However, during the examination, he pointedly asked

Veda Jane if her stepfather had touched her in her genital

area, to which she responded by nodding in the affirm-

ative. (R. 176). Dr. Chastain then referred the victim to

the Suspected Child Abuse and Neglect Agency, where

she was seen by Mr. Perry Jenkins. (R. 176). Mr. Jenkins

interviewed Veda Jane, and through the use of

anatomically correct dolls, acquired from her that her

stepfather, SSgt Ernest L. Nelson, Jr., had touched her

vaginal area with his hand. (R. 285).

Approximately two months later, Veda Jane was seen

by Ms. Julie Mittleman, a counselor with the Bay County

Guidance Clinic. Once again, through the use of

anatomically correct dolls, the victim indicated that Peti-

tioner touched her in her private parts. This time she sug-

gested, through the use of the dolls, that Petitioner had

touched her with both his hand and his mouth. (R. 186).

Veda Jane testified at trial. (R. 116-164). Throughout

her testimony she was extremely evasive and reluctant to

talk. The record is replete with her failures to answer trial

counsel’s questions or her responses that she “forgot” (R.

118-121). When asked a question directly bearing on the

alleged offense, the witness responded as follows:

TC: Who was that somebody? Who was it that did

something to you?

WIT: (Would not answer. Was looking at the peo-

ple in the room).

(R. 140)

Finally, trial counsel was able to elicit, through the use

of leading questions and only by reference to the dolls,

that petitioner had touched the complainant in her genital

area.

There was no other “eyewitness” testimony to the al-

leged offense, nor any corroborating physical evidence of

sexual abuse presented. Defense counsel elected not to

cross-examine Veda Jane.

In their case-in-chief, prosecution introduced, over

defense’s previous objection, a stipulation of expected

testimony of Dr. Chastain. (R. 86, 174-177). As part of

that stipulation, Dr. Chastain related the following out-of-

court statements made by the alleged victim:

I subsequently questioned Jane myself. I asked Jane,

‘Did your stepfather try to place his peter in you?’ to

which she nodded affirmatively. I also asked her, ‘Did

your stepfather use his mouth on you?’ Again, she

nodded affirmatively. (R. 176).

The prosecution then offered the testimony of Ms. Mit-

tleman concerning “statements” made by the complainant

through the use of the dolls. (R. 177 et. seq.). Finally, trial

counsel offered the testimony of Dr. Hord, a clinical

psychologist who had never had contact with the alleged

victim. (R. 196). The trial judge allowed Dr. Hord to

testify over defense counsel’s objection. (R. 196). Dr.

Hord explained why sexually abused children might not

quickly report an incident of sexual abuse. He then

testified that when a child does reveal such abuse the child

could not be lying, but must be telling the truth. (R. 204).

Finally, he stated that. in his experience, a child would not

normally make false claims of sexual abuse solely upon

viewing a pornographic film. (R. 200-204).

4

REASONS FOR GRANTING THE WRIT

QUESTION ONE

Dr. Hord was allowed to testify that generally, children

do not lie when they allege sexual abuse by an adult. The

effect of this testimony was to improperly suggest to the

court members that the complainant child was telling the

truth and, consequently, the accused was guilty. A

longstanding body of case law has held that expert opin-

ions concerning either the credibility of the evidence or

opinions as to guilt or innocence are matters to be reserved

solely for the factfinder and are not proper evidence. State

v. Myers, 382 N.W. 2d 92, 94 (lowa 1986).'

Presumably, this testimony was offered under Military

Rules of Evidence 701, 702 and 704. The thrust of these

rules is clearly to broaden the admissibility of expert tex-

timony. United States v. Gipson, 24 M.J. 246 (C.M.A.

1987); United States v. Cameron, 21 M.J. 59 (C.M.A.

1985); United States v. Snipes, 18 M.J. 172 (C.M.A.

1984). Although the rules allow expert witnesses to express

opinions, even if the testimony embraces an “ultimate

issue” to be decided by the trier of fact, there are still im- -

portant limiting parameters to such opinions, insuring due

process of law is maintained.

Military Rule of Evidence 704 was taken verbatim from

Federal Rule of Evidence 704. The drafters of the federal

rule carefully explained that:

The abolition of the ultimate issue rule does not lower

the bars so as to admit all opinions. Under Rules 701

and 702, opinions must be helpful to the trier of fact,

' Accord, United States v. Binder, 769 F.2d 595 (9th Cir. 1985);

United States v. Jensen, 608 F.2d 1349 (10th Cir. 1979); State v. Mid-

dleton, 294 Or. 427, 657 P.2d 1215 (1983); State v. Correra, 430 A.2d

1251 (R.I. 1981); State v. Perkins, 444 N.E. 2d 878 (Ind. App. 1983).

5

and Rule 403 provides for exclusion of evidence

which wastes time. These provisions afford ample

assurance against the admission of opinions which

would merely tell the jury what result to reach. . .

Federal Rule of Evidence 704; Adivisory Committee’s

Note, 57-F.R.D. 405 (1971) (emphasis added). Similarly,

the analysis to Military Rule of Evidence 704 provides that

the rule “does not permit the witness to testify as to his or

her opinion as to the guilt or innocence of the accused, or

to state legal opinions.” Manual for Courts-Martial 1984,

Appendix 22 at A22-41.

The United States Court of Military Appeals has also

reflected this interpretation of Military Rule of Evidence

704. In United States v. Cameron, 21 M.J. 59 (C.M.A.

1985), the court held that “absent unusual circumstances,

opinion testimony on whether or not to believe a par-

ticular witness’s testimony simply is not deemed helpful to

the factfinder, for the factfinders are perfectly capable of

observing and assessing a witness’s credibility.” Jd. at 63.

See also, United States v. Peterson, 24 M.J. 283 (C.M.A.

1987) (court rejected expert opinion of victim’s credibility

as being outside the ambit of Mil. R. Evid. 704 or 608).

Although the Court of Military Appeals did allow ex-

pert witnesses to testify directly to the credibility of a sex-

ually abused child victim in United States v. Snipes, 18

M.J. 172 (C.M.A. 1984), they distinguished this particular

ruling in United States v. Peterson, 24M.J. 283 (C.M.A.

1987). In Peterson the court explained that this evidence

was admitted in Snipes only because the defense opened

the door to such evidence by asking a witness a question

pertaining to the believability of a victim. Jd. at 283.2

Except for such “unusual circumstances” as found in

Snipes, the Court of Military Appeals has cautiously ruled

? See also, State v. Myers, 359 N.W. 2d 604 (Minn. 1984) (expert

testimony as to typical characteristic of truthfulness of child victims

allowed only because accused opened the door in cross-examination).

6

against allowing experts to testify as to a witness’s

credibility. Chief Judge Everett has continuously voiced

his concern that such expert opinions have “meager scien-

tific basis and minimum value” yet have “substantial

potential for misleading the factfinder.” United States v.

Cameron, supra, at 65. In his concurring opinion in

United States v. Snipes, supra, he expressed his concern

that an expert witness’s testimony may be allowed to

“outrun the scope of his expertise.” Jd. at 180. He further

explained his position by stating:

Indeed, hearing a purported expert give his opinion

about the credibility of a witness may hinder the fact-

finder by distracting him from using his own ex-

perience and common sense which provide the best

means for him to determine the truthfulness of

testimony he had heard. /d.

An expert’s testimony that young children do not lie

about sexual matters is simply not helpful to a jury. Cer-

tainly, it is within the common knowledge of any jury

member that children would have to have some type of ex-

posure to or sexual experience in order to acquire the

necessary knowledge to make such accusations. State v.

McCafferty, 356 N.W. 2d 159, 164 (S.D. 1984) (“a young

child is unlikely to fabricate a graphic account of sexual

activity because such is beyond the realm of his or her ex-

perience”); State v. Myers, 382 N.W. 2d 91 (lowa 1986). In

Myers, the prosecution called two witnesses who testified

that children are generally truthful when they report they

have been sexually abused. /d. at 92. The Supreme Court

of Iowa held that such testimony was improper as it did

not assist the trier of fact in determining a fact in issue, but

instead, improperly invaded the function of the jury in

determining witness credibility. Jd. at 97. The court con-

cluded that such testimony improperly allowed the jury to

7

consider expert testimony tantamount to conclusions that

the accused was guilty. Jd. at 98.3

This is not to say that experts cannot express opinions

that explain pertinent and relevant mental and

psychological symptoms which may be present in sexually

abused children. See, State v. Middleton, 294 Or. 427, 657

P.2d 1215 (1983) (allowing expert testimony regarding

typical reaction of young child raped by family member).

Indeed, it was on such a basis that the Court of Military

Appeals decided the present case. Relying on their ruling

in United States v. Snipes, supra, they held “there is a suf-

ficient body of ‘specialized knowledge’ regarding ‘the

typical behavior of sexually abused children and their

families’, such that the conclusions which an expert draws

as to these ‘behavioral patterns’ are permissible.” United

States v. Nelson, 25 M.J. 110, 113 (C.M.A. 1987) (citing

United States v. Snipes, supra at 179).

Based upon these grounds, the court’s ruling must fail.

Dr. Hord did not testify as to typical “behavioral patterns”

of sexually abused children. Rather, he testified directly to

the credibility of the witness, specifically suggesting to the

court members that the witness must be telling the truth.

Such a comment on the witness’s credibility “crossed that

fine but essential line between an opinion which would be

truly helpful to the jury and that which merely conveys a

conclusion concerning the defendant’s legal guilt.” State v.

Myers, supra, at 98 (emphasis added).

The prejudice inherent in allowing Dr. Hord to testify

far outweighed any probative value of such testimony, if

indeed such opinions are determined to be probative. State

v. Logue, 372 N.W. 2d 151 (S.D. 1985). The only evidence

in the case was Veda Jane’s testimony, as the remaining

evidence was neither corroborative of the victim’s com-

3 Accord, Tevlin v. People, 715 P.2d 338 (Colo. 1986); People v.

Koon, 713 P.2d 410 (Colo. App. 1985); see also, People v. Bledsoe, 36

Cal. 3d 236, 681 P.2d 291 (1984); People v. Roscoe, 215 Cal. Rptr 45,

168 Cal. App. 3d 1093 (1985).

8

plaint nor overwhelming as to the guilt of the accused.

Chief Judge Everett’s comments to a similar situation in

United States v. Snipes, supra, are apt warnings in the case

sub judice, wherein he remarked:

. . . [have the disquieting belief that appellant’s con-

viction may have been a miscarriage of justice. /d. at

180.

A trial judge’s decision to admit expert testimony is only

reversible where there is manifest error or abuse of discre-

tion. United States v. Binder, 769 F.2d 595 (9th Cir. 1985);

United States v. Marabelles, 724 F.2d 1374 (9th Cir. 1984).

Erroneous admissions should be reversed if the evidence

more likely than not materially affected the verdict.

United States v. Binder, supra at 601-602. Where there re-

mains grave doubt as to the effect of the error upon the

verdict, the conviction cannot stand. Kotteakos v. United

States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).

Because the proof in this case was precariously balanced

on the believability of Veda Jane’s testimony, it is extreme-

ly likely that Dr. Hord’s testimony affected the jury’s ver-

dict. Reversal is, therefore, required.

QUESTION TWO

At trial, Veda Jane testified, with the aid of the

anatomically correct dolls, that Petitioner touched her

genital area with his hand and mouth. The jury had an op-

portunity to view her demeanor, and had the sole respon-

sibility to determine her credibility. This determination

was especially critical, as her testimony was the only

evidence that Petitioner committed the offense.

It is clear from the record, that Veda Jane was hesitant

and evasive in her testimony, which likely diminished her

credibility before the jury. Prosecution’s only purpose,

then, in presenting the testimony of Dr. Chastain and Ms.

Mittleman was to bolster the victim’s credibility by allow-

ing the jury to hear the repetitions of the same story; this

time by a pediatrician and a mental health specialist. By

9

doing so, the trial court returned to a medieval concept of

“trial by oath-helper”, suggesting to the jury that the

witness was credible because of her repetition of the story.

There is only one rule that will assure fundamental

fairness and due process of law; a witness should be

evaluated for truthfulness on their own merit and

testimony, without assistance of oath-helpers repeating

what the witness has already testified to. There is simply

no support under the law to the admission of testimony

for the purpose of buttressing a witness’ testimony by

repetition of that testimony through the introduction of

out-of-court statements where the on/y purpose of the

evidence is the repetition itself. State v. Seever, 41 Crim.

L. Rep. (BNA) 2312 (Mo. Sup. Ct. June 14, 1987); see,

Military Rule of Evidence 801(d)(1)(B).4

Although Military Rule of Evidence 803(4) allows the

admission of statements made out of court if made for the

purpose of medical diagnosis or treatment, such

statements should not be admitted if, under Military Rule

of Evidence 403, the evidence is substantially more prej-

udicial than probative. See, S. Saltzburg, L. Schinasi, D.

Schlueter, Military Rules of Evidence Manual (2d ed.

1986), p. 639-640. The admission of Veda Jane’s out-of-

court statements was highly prejudicial to the Petitioner.

Because of her in-court testimony, Veda Jane’s credibility

was certainly in question. Allowing prosecution to present

the statements she made to Dr. Chastain (amounting to af-

firmative nods to the Doctor’s direct and leading ques-

tions) and to Ms. Mittleman (responses made only through

the use of dolls)—the very statements the victim had

already made at trial before the jury— would only confuse |

and bias the court members in performing their duty of

+ See also, S. Saltzburg, L. Schinasi, D. Schlueter, Military Rules of

Evidence Manual (2d ed. 1986), p. 614, (“This limitation reflects the

common law view that someone who repeats the same story over and

over is not necessarily likely to be more truthful than someone who

says the same thing just once. A lie often repeated does not become

the truth.”).

10

evaluating the victim’s demeanor and the quality of her

testimony. =

At trial, the defense objected to the testimony of Dr.

Chastain. Upon the trial judge’s ruling that his testimony

was admissible, Petitioner concurred in the stipulation for

expected testimony of Dr. Chastain. Additionally, defense

did not object to the testimony of Ms. Mittleman. Never-

theless, Military Rule of Evidence 103(d) makes clear that

the absence of an objection does not render moot the

review of an error which “seriously affects the fairness, in-

tegrity or public reputation of judicial proceedings.”

United States v. Young, 470 U.S.-1, 15 (1984); see also,

United States v. Fischer, 21 M.J. 327 (C.M.A. 1986); cf.,

Mil. R. Evid. 103(c); but see United States v. White, 25

M.J. 50 (C.M.A. 1987). By admitting the testimony of

these two prosecution witnesses, when no attack had been

made against the credibility of Veda Jane’s in-court

testimony, the trial judge abandoned his responsibility to

insure that Petitioner received a fair trial. The error was

blatant, substantial and prejudicial.

CONCLUSION

Petitioner submits that his petition for writ of certiorari

should be granted. oa

Respectfully Submitted.

LEO L. SERGI

Colonel, Office of The Judge

Advocate General

United States Air Force

is me HQ USAF/JAJD

Bldg 5683

Bolling AFB, DC 20332-6128

(202) 767-1562

Counsel of Record

and

LYNNE H. WETZELL

Captain, Office of The Judge

Advocate General

United States Air Force

APPENDICES

APPENDIX A

UNITED STATES COURT OF MILITARY APPEALS.

No. 54,383.

ACM 24775.

UNITED STATES, APPELLEE,

Vv.

ERNEST L. NELSON, STAFF SERGEANT,

U.S. AIR FORCE, APPELLANT.

Sept. 28, 1987.

Accused, a staff sergant in the United States Air Force,

was convicted by general court-martial of committing in-

decent, lewd, and lascivious acts with a child, and he ap-

pealed. The United States Air Force Court of Military

Review, 21 M.J. 711, affirmed. Review was granted. The

United States Court of Military Appeals, Cox, J., held

that: (1) pediatrician and psychologists’ testimony to

statements of child was admissible (2) testimony of doctor

~ of clinical psychology and expert in field of behavior of

sexually abused children was admissible; and (3) testimony

of psychologist and social worker to child’s reactions to

anatomically correct dolls used during their out-of-court

interviews with child was admissible.

Affirmed.

For Appellant: Major Charles L. Willie (argued); Col-

onel Leo L. Sergiand Major William H. Lamb (on brief).

For Appellee: Captain Jeffrey H. Curtis (argued); Col-

onel Kenneth R. Rengert and Lieutenant Colonel Donal F.

(la)

2a

Hartman, Jr. (on brief); Colonel Joe R. Lamport, Lieu-

tenant Colonel Robert E. Giovagnoni; Major Robert J.

Webster (USAFR).

OPINION OF THE COURT

COX, Judge:

Contrary to his pleas, appellant was convicted by a

general court-martial composed of officer and enlisted

members of committing indecent, lewd, and lascivious

acts with his stepdaughter, in violation of Article 134,

Uniform Code of Military Justice, 10 U.S.C. § 934. He

was sentenced to a bad-conduct discharge, confinement

for 2 years, forfeiture of $310.00 per month for 2 years,

and reduction to the lowest enlisted pay grade. The con-

vening authority approved, and the Court ef Military

-Review affirmed, these results. 21 M.J. 711 (1985).

This Court granted review of the following issues:

WHETHER THE MILITARY JUDGE ERRED TO

THE SUBSTANTIAL PREJUDICE OF AP-

PELLANT BY ALLOWING OVER DEFENSE OB-

JECTION TESTIMONY FROM PROSECUTION

WITNESSES AS TO PRIOR OUT-OF-COURT

STATEMENTS BY THE PURPORTED VICTIM

WHERE SUCH STATEMENTS WERE OFFERED

IN THE PROSECUTION‘S CASE-IN-CHIEF

AFTER THE PURPORTED VICTIM TESTIFIED

AND WHERE THE PURPORTED VICTIM HAD

NOT BEEN CROSS-EXAMINED BY THE

DEFENSE.

WHETHER THE AIR FORCE COURT OF

MILITARY REVIEW ERRED IN HOLDING

3a

THAT AN EXPERT WITNESS COULD TESTIFY

TO THE USUAL TRUTHFULNESS OF CHILD

VICTIMS.

WHETHER THE TESTIMONY OF THE

WITNESSES MITTLEMAN AND JENKINS AS IT

RELATED TO OUT-OF-COURT INTERVIEWS

WITH THE CHILD WITNESS DURING WHICH

CERTAIN VERBAL AND NONVERBAL

STATEMENTS WERE TAKEN FROM THE

WITNESS THROUGH THE USE OF

ANATOMICALLY CORRECT DOLLS SHOULD

NOT HAVE BEEN ADMITTED SINCE SUCH

VERBAL AND NONVERBAL STATEMENTS

WERE NOT SUBJECT TO _ CROSS-

EXAMINATION.

This case presents a difficult scenario because it is based

entirely on the statements of the victim, appellant’s 6-year-

old stepdaughter. There were no eyewitnesses, no confes-

sion, and no physical corroboration of the victim’s com-

plaint. Much of the information obtained in the trial was

introduced through the testimony of mental-health profes-

sionals and others who had interviewed the child during

the investigation into the alleged offenses. Their testimony

forms the basis for the allegations of error in the granted

issues.

{1} At the outset it should be noted that there was no

denial of appellant’s Sixth Amendment right of confronta-

tion in this case. See California v. Green, 399 U.S. 149, 90

S.Ct. 1930, 26 L.Ed.2d 489 (1970); United States v.

LeMere, 22 M.J. 61 (C.M.A.1986). The child, Jane, was

called to testify and did so. Defense counsel waived cross-

4a

examination. On appeal, appellant objects to the admis-

sion of the testimony of Dr. Chastain, a pediatrician, and

Ms. Mittleman, a psychologist, under Mil.R.Evid. 803(4),

Manual for Courts-Martial, United States, 1984.

[2,3] Mil.R.Evid. 803(4) excepts from the rule against

hearsay statements made by the declarant for purposes of

medical diagnosis and treatment. Its applicability is not

limited to statements made to medical doctors and may in-

clude statements made to psychologists. United States v.

Welch, 25 M.J. 23 (C.M.A.1987). The key to applicability

of the exception is whether the patient has some expecta-

tion of promoting his well-being and thus an incentive to

be truthful. United States v. Deland, 22 M.J. 70

(C.M.A.), cert. denied, __ U.S. ____., 107 S.Ct. 196, 93

L.Ed.2d 128 (1986).

[4] Here, the military judge found as a matter of fact

that the statements were made for the purpose of diagnosis

and treatment. Evidence in the record supports the judge’s

finding in that it shows that Dr. Chastain’s purpose in ob-

taining the information from the child was “to insure that

she was in no physical danger, not suffering from an infec-

tion, and free from medical distress.” Ms. Mittleman’s

purpose in obtaining information from the child was to

develop a diagnosis and plan of treatment for any men-

tal/emotional problems. Moreover, there was no evidence

that the child’s motive in making her statements to Dr.

Chastain or Ms. Mittleman was other than that of a pa-

tient responding to a doctor questioning her for diagnosis

and treatment.

Appellant also contends that this evidence was

cumulative and prejudicial in that it, in effect, bolstered

the child’s testimony. No objection on the basis of

Mil.R.Evid. 403 was made at trial, and admission of this

evidence does not constitute plain error. United States v.

Fisher, 21 M.J. 327 (C.M.A.1986). Accordingly, we hold

—

Sa

that the military judge did not err in admitting the

testimony.

[5,6] Appellant’s second allegation of error concerns

the testimony of Dr. Hord, a doctor of clinical psychology

and an expert in the field of the behavior of sexually-

abused children. The threshold question in determining

admissibility of expert testimony is whether it would be

helpful to the factfinder in resolving the facts‘in issue. See

Mil.R.Evid. 702; United States v. Gipson, 24 M.J. 246

(C.M.A.1987). “[T]he thrust of the” rules of evidence “‘is

to make more expert testimony available to the fact-

finders than previously.” Jd. at 251.

In the case at bar, Dr. Hord was asked to opine why a

child might not quickly report an incident of sexual abuse;

whether a child would be prompted to fabricate an allega-

tion of sexual abuse upon viewing a pornographic

videocassette; and what, if any, relevance an adult’s sexual

orientation might have on the possibility or probability of

his committing sexual offenses against a child.* This

Court has held ‘that there is a sufficient body of ‘special-

ized knowledge’ ” regarding “the typical behavior of sex- —

ually abused children and their families,” such that the

conclusions which an expert draws as to these “behavioral

patterns” are admissible. United States v. Snipes, 18 M.J.

172, 179 (C.M.A.1984). Our review of the record discloses

no abuse of discretion by the military judge in permitting

* Although the issue is styled based upon the Court of Military

Review’s characterization of Dr. Hord’s testimony as being “limited to

comments about the usual truthfulness of child victims,” 21 M.J. 711,

713 (1985), in context, Dr. Hord’s comments were actually tailored to

the characteristics he had observed in his experience in treating

children who were allegedly sexually abused.

6a

Dr. Hord’s testimony. This is especially true as defense-

counsel did not object to the questions or to the content of

any of Dr. Hord’s responses. Mil.R.Evid. 103(a)(1).

[7,8] Appellant’s final issue asserts that Ms. Mit-

tleman, the psychologist, and Mr. Jenkins, a social

worker, should not have been permitted to testify about

the child’s reactions to the anatomically correct dolls

which they used during their out-of-court interviews with

the child. The use of anatomically correct dolls is an ac-

cepted clinical procedure for interviewing suspected vic-

tims of child abuse. See, e.g., United States v. LeMere,

supra, 22 M.J. 61, 64 (child allowed to use anatomically

correct dolls to facilitate her testimony). The clinicians

were available to explain their observations upon cross-

examination and did so. The child illustrated her

testimony by using the dolls in court, at which time she

was available for cross-examination. Defense affirmative-

ly waived the opportunity to cross-examine her.

Therefore, we find no violation of appellant’s Sixth

Amendment right to confrontation. Furthermore, no ob-

jection was made at trial to the witnesses’ references to the

anatomical dolls. Mil.R.Evid. 103(a)(1). Admission of ex-

pert testimony “is a matter within the discretion of the

military judge.” United States v. Snipes, supra at 178. Ap-

pellant has not demonstrated that the military judge

abused his discretion in this matter, and we do not find

plain error. See United States v. Fisher, supra.

The decision of the United States Air Force Court of

Military Review is affirmed.

Chief Judge EVERETT and Judge SULLIVAN concur.

7a

UNITED STATES AIR FORCE COURT OF MILITARY

REVIEW

ACM 24775

UNITED STATES

Vv.

STAFF SERGEANT ERNEST L. NELSON, JR., FR 429-15-9175

UNITED STATES AIR FORCE

3 DEC 1985

Sentence adjudged 6 February 1985 by GCM convened at

Tyndall Air Force Base, Florida. Military Judge: David

M. Lewis.

Approved sentence: Bad conduct discharge, confinement

for two (2) years, forfeiture of three hundred ten dollars

($310.00) per month for two (2) years and reduction to air-

man basic.

Appellate Counsel for the Accused: Colonel Leo L. Sergi

and Major William H. Lamb. Appellate Counsel for the

United States: Colonel Kenneth R. Rengert and Lieu-

tenant Colonel Donal F. Hartman, Jr.

Before

FORAY, MURDOCK AND O’HAIR

Appellate Military Judges

DECISION

MURDOCK, Judge:

The appellant was charged with one specification of tak-

ing indecent liberties with a child, and was convicted by a

8a

court consisting of officer and enlisted members of the

lesser included offense of lewd and lascivious acts with a

child. He was sentenced to a bad conduct discharge, two

years confinement, forfeiture of $310 per month for two

years, and reduction to airman basic. He has asserted five

errors, primarily concerning the use of experts and the ad-

missibility of prior consistent statements. There was error

in the way prior consistent statements were handled, but

we find the error was harmless and we affirm.

This case relies entirely on the testimony of the victim,

the appellant’s six year old stepdaughter. Much of the in-

formation she contributed was introduced through the

testimony of others who interviewed her during the course

of this case’s investigation. This secondhand information

forms the basis of all of the errors to be discussed here.

The appellant asserts that it was error to admit the

stipulation of expected testimony of Mr. Jenkins, a child

protective agency intake worker, in rebuttal. We agree.

The trial counsel moved to admit the stipulation by stating

it was being presented either “simply as rebuttal evidence

under [R.C.M.] 93lc(1)(c) or as a very clear prior state-

ment by a witness under [Mil. R. Evid.] 801d(1)(b).” The

stipulation was admitted over vigorous objection. The

first problem with the trial counsel’s motion is that

R.C.M. 913c(1) merely lists the order of presentation of

evidence in the case on the merits. It is not, by itself, a

basis for admissibility. Despite the trial counsel’s state-

ment to the contrary, this motion was really based solely

on the stipulation being admissible as evidence of a prior

consistent statement.

This case presents the question of the admissibility of

prior consistent statements for rebuttal. As a general rule,

evidence must have been presented to the court before it

can be rebuited. In the present case, the trial counsel at-

9a

tempted to introduce the stipulation to rebut inferences,

raised at trial, that the child’s grandmother had exerted

undue influence over her. We agree with Chief Judge

Everett in his dissent in United States v. Meyers, 18 M.J.

347 (C.M.A. 1984), that the key to these difficult cases is

relevance. :

The stipulation of expected testimony was based on

statements made to Mr. Jenkins by the child after she had

been living with her grandmother for about one month. By

introducing the stipulation, the trial counsel was trying to

rebut inferences of the undue influence of this very same

grandmother. It is logically impossible to rebut allegations

of undue influence by introducing a statement produced

while the speaker is still living under the influence of the

person whose influence the rebuttal seeks to disprove.

Because of this impossibility, the statement made by the

child to Mr. Jenkins is not relevant to resolve whether the

grandmother caused the child to accuse the appellant

falsely by exerting undue influence over her. Mil. R. Evid.

401. As a result, the stipulation of expected testimony was

not admissible as evidence of a prior consistent statement.

Mil. R. Evid. 402 and 801(d)(1)(B).

Harmless error results when it is not reasonably prob-

able that the fact finders were swayed by invalid evidence.

United States v. Clark, 12 M.J. 978 (A.F.C.M.R. 1982).

The evidence in this case is basically limited to the asser-

tions of a 6 year old girl against the denial of her step-

father, the accused. The proof of this case was necessarily

precariously balanced on the believability of the young

girl’s testimony. Unlike the situation in United States v.

Browder, 19 M.J. 988 (A.F.C.M.R. 1985), where the prior

consistent statements presented new material to the fact

finder, the stipulation in the present case was merely

another recitation of information already before the

court. Although it was error to admit the stipulation, it

10a

was harmless in this case. United States v. Carson, 702

F.2d 351 (2d Cir.), cert denied ___ U.S. __, 103 S.Ct.

2456, 77 L.Ed. 2d 1335 (1983).

In two separate but related assignments of error, the ap-

pellant asserts that it was error to allow a clinical

psychologist to testify about generalized behavior patterns

of known or suspected abused children or for any of the

expert witnesses to base their testimony on statements

made by the victim when she was interviewed with the help

of anatomically correct interview dolls. We disagree.

All the witnesses concerned in these assertions of error

were recognized by the court as experts. Expert testimony

cannot be evaluated by ordinary standards. It is inherent

in the nature of experts that they may be discussing con-

cepts or using techniques that we may not readily under-

stand. The reason we ask experts to testify, and the reason

we allow them to state their opinion is because they

possess specialized knowledge in areas nonexperts may not

understand. Expert testimony is governed by Military Rule

of Evidence 702 which provides:

Testimony by Experts. If scientific, technical, or

other specialized knowledge-will assist the trier of fact

to understand the evidence or to determine a fact in

issue, a witness qualified as an expert by knowledge,

skill, experience, training, or education, may testify

thereto in the form of an opinion or otherwise.

The appellant has asserted that it was error to allow Dr.

Hord, a clinical psychologist called by the government, to

testify about generalized behavior patterns of known or

suspected abused children. Dr. Hord did not offer his

opinion on the specific truthfulness of the victim in this

case. In fact, although he had reviewed a case file the trial

counsel had provided, Dr. Hord had not even interviewed

the child victim. See United States v. Cameron, 21 M.J.

lla

59 (C.M.A. 1985). Instead, his testimony was limited to

comments about the usual truthfulness of child victims.

Specifically, that since the subject matter involved in

reports of sexual abuse is normally unknown to children

who are the same general age as the victim in this case,

reports of sexual abuse by young children are usually

truthful. This type of expert testimony has already been

declared admissible in courts-martial. United States v.

Snipes, 18 M.J. 172 (C.M.A. 1984). The expert’s

testimony in the present case was well within the expected

range of his expertise.

US GOVERNMENT PRINTING OFFICE 1987— 196-792/62016