Opposition Brief — Lewicki v. United States

(>) RILED

1988

No. 87-1618 1 ame F BPANIOL, JR.

In the Supreme Court of the United States

OCTOBER TERM, 1987

DANIEL L. LEWICKI, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF MILITARY APPEALS

BRIEF FOR THE UNITED STATES

IN OPPOSITION

CHARLES FRIED

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

NORMAN G. COOPER

Col., JAGC, USA

GARY F. ROBERSON

Lt. Col., JAGC, USA

GARY L. HAUSKEN

Capt., JAGC, USA

PATRICK D. O’HARE

Capt., JAGC, USA

Appellate Government Counsel

Government Appellate Division

United States Army Legal Services Agency

Falls Church, VA 22041-5013

GR > Se v 2 Ty tem

ORS

STS

QUESTION PRESENTED

Whether the admission as an excited utterance of

statements made by petitioner’s four-year-old neighbor to

her mother violated the Confrontation Clause of the Sixth

Amendment.

(I)

TABLE OF CONTENTS

Page

ee cad calaks vibes Coke 6 PECK RG AS OR KORG l

ala a alg iad kee eas Ces cles l

OO oy eae ie dg amylase Rae ee l

ee ects crak he and eee ek dene see ae eee 8

re een aa. atts yi Guus wae a bee eens 15

TABLE OF AUTHORITIES

Cases:

Bourjaily v. United States, No. 85-6725 (June 23, 1987) .. 13

California v. Green, 339 U.S. 149 (1970) ............... 11

Dutton v. Evans, 400 U.S. 74 (1970) .................. 10

Haggins v. Warden, 715 F.2d 1050 (6th Cir. 1983), cert.

CE Ee 8

McLaughlin v. Vinzant, 522 F.2d 448 (ist Cir.), cert.

denied, 423 U.S. 1037 (1975) ............... Aries 8

Ohio v. Roberts, 448 U.S. 56 (1980) ................... 9, 10

Puleio v. Vose, 830 F.2d 1197 (Ist Cir. 1987) ........... 8

Tennessee v. Street, 471 U.S. 409 (1985) ............... 10

United States v. Arnold, 25 M.J. 129 (C.M.A. 1987),

cert. denied, No. 87-832 (Feb. 22, 1988) ............. 8

United States v. Cree, 778 F.2d 474 (8th Cir. 1985) ...... 8

United States v. Inadi, 475 U.S. 387 (1986) ............. 9, 10

United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980),

cert. denied, 450 U.S. 1001 (1981) .................. 13

United States v. Moore, 791 F.2d 566 (7th Cir. 1986) .... 8

United States v. Nick, 604 F.2d 1199 (9th Cir. 1979) ..... 13

United States v. Welch, 25 M.J. 23 (C.M.A. 1987) ...... 14-15

Constitution, statutes and rules:

U.S. Const. Amend. VI (Confrontation Clause) ........ 6, 8,

9, 10, 11, 13

Uniform Code of Military Justice, 10 U.S.C. (& Supp.

IV) 801 ef seq.:

eg a Gin pies War aa'e wb am 8 wa 11

re was baa eased es l

(IIT)

IV

Rules: Page

Mil. R. Evid.:

ac ct wan has gaak ah oe bas cee 2

Ling hae ica a aisle Fea ew a ee 6, 7, 13

EY 5. a's Ssla wos oh ahuw keen Raye 14

Miscellaneous:

McCormick On Evidence (E. Cleary 3d ed. 1984) ....... 11

6 J. Wigmore, Evidence (Chadborn rev. ed. 1976) ....... 10

In the Supreme Court of the Anited States

OCTOBER TERM, 1987

No. 87-1618

DANIEL L. LEWICKI, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF MILITARY APPEALS

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINIONS BELOW

The order of the Court of Military Appeals (Pet. App.

la-2a) is reported at 26 M.J. 63. The opinion of the Army

Court of Military Review (Pet. App. 3a-4a) is unreported.

JURISDICTION

The judgment of the Court of Military Appeals was

entered on February 2, 1988. The petition for a writ of cer-

tiorari was filed on March 31, 1988. The jurisdiction of

this Court is invoked under 28 U.S.C. (Supp. III) 1259(3).

STATEMENT

Petitioner, a member of the United States Army, was

tried by a general court-martial at Fort Devens, Massa-

chusetts. He was convicted of taking indecent liberties

with two children under the age of 16, in violation of Arti-

cle 134 of the Uniform Code of Military Justice (UCMJ),

10 U.S.C. 934. He was sentenced to a dishonorable

(1)

2

discharge. The convening authority approved the findings

and sentence. The Army Court of Military Review af-

firmed the findings and sentence (Pet. App. 3a-4a). The

Court of Military Appeals affirmed by order (id. at la-2a).

1. On June 2, 1984, Jennifer Aspinwall and

petitioner’s daughter Candice Lewicki, two four-year-old

girts, were left in the exclusive care of petitioner from ap-

proximately 3:00 p.m. until 4:30 p.m. (GX 3; Tr.

179-203). Petitioner’s wife was working at the time (Tr.

197). While the children were in his care, petitioner al-

lowed the children to expose his genitals and to touch his

penis.

a. In a sworn pretrial statement given to an agent of

the Army’s Criminal Investigation Division,' petitioner

admitted that he played with the children, and that Jen-

nifer Aspinwall sat on his lap. Her “squirming about”

caused him to become sexually aroused, “meaning that

[petitioner] was getting an erection” (GX 3; Tr. 174). Peti-

tioner stated that he went upstairs to lie down (GX 3; Tr.

175). The children followed him. They induced petitioner

to play by placing clothing under their shirts and pants.

Petitioner’s role in the game was to pull the clothing out.

Jennifer placed clothing under her shirt in a manner that,

to petitioner, at least, resembled breasts (ibid.). Petitioner

admitted that he reached beneath the girls’s shirts and in-

side their pants to remove the clothing placed there, but he

denied putting his hand inside the girls’ underwear (ibid.).

Petitioner stated that he had unbuttoned his pants and

' Petitioner did not challenge the voluntariness of his statement at

trial, although he did claim that his statement was not corroborated,

as required by Mil. R. Evid. 304(g) (AX 7; Tr. 172). Under that Rule,

a defendant's statement may be considered as evidence of his guilt

only if independent evidence, direct or circumstantial, sufficiently cor-

roborates the essential facts of the statement as to justify an inference

that it is truthful.

3

partially lowered his zipper “so [he] could rest comfort-

ably” (ibid.). The children started to pull on his pants and

underwear, exposing his genitals (GX 3; Tr. 175, 179).

Petitioner admitted he was fully aware of what was occur-

ring and that he did nothing to stop the children (GX 3;

Tr. 176). He knew that he was feeling something that he

should not be feeling, and it scared him (GX 3; Tr. 176).

Petitioner conceded that he should not have permitted the

children to do what they were doing, but he did not ex-

plain why he failed to stop them (GX 3; Tr. 177).

Petitioner had a partial ejaculation (GX 3; Tr. 176). He

asserted that his ejaculation was unrelated to the actions

of the children, claiming he always had a release of

seminal fluid when his erections subsided (ibid.).

Although petitioner did not realize that he had partially

ejaculated until he permitted the children to expose his

penis, he claimed that his ejaculation occurred before the

children entered the room (GX 3; Tr. 178).

Petitioner’s daughter, Candice, put her hand on her

father’s penis for several seconds (GX 3; Tr. 176). Peti-

tioner admitted that his daughter may have rubbed his

penis while touching it (GX 3; Tr. 177). Petitioner ap-

parently did nothing to prevent or interrupt the contact.

Candice removed her hand and said something to Jen-

nifer, who also touched petitioner’s penis (GX 3; Tr. 176).

Petitioner went to the bathroom where he cleaned his

penis and waited until his erection subsided (GX 3; Tr.

176). Petitioner returned and told the children they should

not towch people “in that area” (GX 3; Tr. 177). Petitioner

also admitted telling the children that they should not tell

anyone else what had happened.? Petitioner then went to

2 Petitioner testified that, when he told Jennifer Aspinwall that he

was going to tell her parents what had occurred, Jennifer started

whimpering, assumed a fetal position, and then started crying (Tr.

198).

Sleep (ibid.).*

b. Jennifer and Candice returned to the Aspinwall

residence at approximately 4:30 p.m. Jennifer’s mother in-

vited Candice to stay for dinner. As the children left to ask

permission from Candice’s parents, Jennifer told her

mother, “we have a secret and we can’t tell you or Daddy

or [petitioner’s spouse]” (Tr. 137).* The children returned

and went upstairs to eat (Tr. 138-139). Candice went home

at approximately 8:00 p.m. that night, and Mrs. Aspinwall

decided to wash Jennifer’s hair (Tr. 139). While Mrs.

Aspinwall dried Jennifer’s hair, Jennifer said “[petitioner]

was pulling little toys out of our britches,” Jennifer’s term

for underwear (Tr. 140-141).°

Mrs. Aspinwall was concerned, but behaved as if there

was “no problem” (Tr. 140). When Mrs. Aspinwall asked

Jennifer to tell her more about what happened, Jennifer

told her, “This is a secret that we’re not supposed to tell”

(Tr. 141). Jennifer told her mother that petitioner had

been pulling “toys” out of Candice’s underwear too (ibid.).

Jennifer was “giggly,” “fidgety,” and “nervous” (ibid.).

Mrs. Aspinwall asked if petitioner had touched Jennifer

between the Legs. Jennifer said no. Her demeanor was

* At trial, petitioner recanted his prior, sworn admissions (Tr. 189).

He specifically claimed that he was asleep when the children pulled his

pants down (Tr. 182-183, 189). He also claimed that he did not know

whether the children touched his penis (Tr. 190). Petitioner explained

that he had lied in his sworn statement to “protect” Jennifer Aspinwall

and his daughter from interrogation by the Army’s Criminal In-

vestigation Division (Tr. 188, 190).

* Mrs. Aspinwall testified that when Jennifer said that she and Can-

dice had a secret, petitioner’s daughter “went very rigid” and was

trembling (Tr. 137-138). Jennifer told Candice not to worry and that

she would not reveal their secret (Tr. 138).

* At the pretrial hearing, Mrs. Aspinwall testified that she learned

from Jennifer that “toys” meant clothes (Tr. 38).

5

“real serious” (ibid.). She was very upset and started to get

“blotchy,” indicating that she was about to cry (/bid.).

When Mrs. Aspinwall asked what else had occurred,

Jennifer began to cry (Tr. 142). She told her mother that

petitioner had said that because it was alright for him to

pull “toys” out of their britches, it was alright for them to

pull toys out of his (ibid.). Jennifer was “truly upset”

(ibid.) and cried “real hard” as she told her mother that

petitioner had pulled his pants down and “let his thingy

fall out” (ibid.). Mrs. Aspinwall let her stop crying before

she asked what happened next (ibid.). Jennifer told her

mother that petitioner had said the children could play

with his “thingy” (Tr. 142-143) and that she and Candice

had done so (Tr. 142). Mrs. Aspinwall comforted Jennifer

for a few minutes, gave her a bath, and put her to bed (Tr.

142-143). After her husband arrived, they called the

police, who arrived immediately (Tr. 144). Because Jen-

nifer was in bed, she was not questioned at that time (Tr.

148).

Two CID agents came to the house the next day and,

together with her parents, tried to ask Jennifer what had

happened (Tr. 149). She told them about petitioner pulling

the “toys” out of her britches. When pressed for more

detail, however, she began to cry (ibid.). She repeatedly

said, “I don’t remember” (ibid.).°

Jennifer’s behavior subsequently became quite erratic.

Her mother saw her playing with herself and exposing

herself to other children (Tr. 145-146), which she had

6 Mrs. Aspinwall testified during the motion hearing that Jennifer

had never told her a similar story (Tr. 40). Mrs. Aspinwall also in-

dicated that she and her husband were “fussy” concerning the in-

fluences to which their children were exposed (Tr. 144). They

monitored the television programs that Jennifer watched, and they

maintained no sexually suggestive materials in the house (Tr.

144-145).

6

never done before. At the same time, Jennifer also showed

concern about anyone seeing her in a state of undress (Tr.

146), and she exhibited other atypical behaviors.’

Jennifer’s parents sought the assistance of Dr. Richard

Judah, a psychologist.®

2. Petitioner moved before trial to exclude Jennifer’s

statements to her mother. He argued that the statements

were not admissible under Mil. R. Evid. 803(2)° as excited

utterances because three-and-one-half to five hours had

passed between the time of the alleged incident and the

time that Jennifer uttered her statements (AX 5, at 3).

Petitioner also maintained that the Confrontation Clause

barred the admission of the statements, because the

government could have subpoenaed Jennifer to testify at

trial (id. at 4). At a pretrial hearing on petitioner’s motion,

the government presented the testimony of Dr. Judah. Dr.

Judah testified that it would not be in Jennifer’s best in-

terest to appear as a witness in the absence of special

preparation for the questioning she would face about the

experience (Tr. 72). He indicated that the experience could

be very upsetting to Jennifer (Tr. 73), and that there was a

’ These included masturbatory gestures (Tr. 146), and regressive,

baby-like behavior (Tr. 146-147). During her testimony on the mo-

tion, Mrs. Aspinwall also indicated that Jennifer had sleep distur-

bances, including nightmares. Jennifer had never had problems sleep-

ing prior to the incident (Tr. 43-44).

* Dr. Judah did not testify at trial, although he did testify at a hear-

ing on the admissibility of Jennifer’s statements to her mother and at

sentencing (Tr. 55-96, 272-286). Dr. Judah met with Jennifer Aspin

wall alone and with her mother present (Tr. 58-59). Mis testing and in-

terviewing led him to conclude that Jennifer had been subjected to

sexual molestation (Tr. 69). He also believed that Jennifer “definitely”

needed psychological counseling as a result of the molestation (Tr.

65).

* Mil. R. Evid. 803(2) was adopted without change from the Federal

Rules of Evidence.

greater potential for the experience to be traumatic rather

than beneficial (Tr. 75). Dr. Judah testified that Jennifer

could possibly testify “if certain conditions which are

probably uncommon to courts” were considered (ibid.).

Those conditions included “a lot of preparation,” being

accompanied by someone she trusted, and meeting the

judge in closed chambers with her parents (Tr. 75-78). Ac-

cording to Dr. Judah, petitioner’s presence could bias her

responses (Tr. 77). Petitioner offered no contrary

evidence, and he did not contend that the prosecution

should be required to prepare Jennifer to testify in the

manner suggested by Dr. Judah.

The trial judge denied petitioner’s motion and permitted

Mrs. Aspinwall to testify about Jennifer’s statements to

her (Tr. 102). Petitioner did not subpoena Jennifer, and

she did not testify at trial. See ibid. (trial court noted that

defense did not request that a subpoena be issued for Jen-

nifer); Defense Request for Witnesses (Aug. 28, 1984)

(omitting Jennifer). At the close of the case, the trial judge

instructed the panel that Jennifer’s statements were excited

utterances under Mil. R. Evid. 803(2) (Tr. 241-242).'° The

judge also found that the excited utterances were sufficient

to corroborate petitioner’s admissions (Tr. 103), and the

judge therefore admitted petitioner’s sworn statement (GX

3; Tr. 174-179). The panel convicted petitioner by excep-

tions and substitutions.'!

© Although no limiting instruction was given by the trial judge con-

cerning the panel members’ consideration of the excited utterances,

petitioner did not request such an instruction, and he specifically in-

dicated that he had no objection to the instruction proposed by the

trial judge (Tr. 226).

'' Petitioner was originally charged with taking indecent and im-

moral liberties with two girls under the age of 16 years by “re//ing them

to touch his penis, and having them touch his penis” (Tr. 9 (emphasis

added)). He was convicted of “encouraging them to touch his penis,

and allowing them to touch his penis” (Tr. 270 (emphasis added)).

3. The Army Court of Military Review affirmed (Pet.

App. 3a-4a). It found that petitioner’s failure at any time

to request that Jennifer Aspinwall be called as a witness

was inconsistent with his claim that his confrontation

rights had been violated (id. at 4a). The Court of Military

Appeals summarily affirmed by a divided vote, holding

that petitioner’s right of confrontation was not violated

(id. at la-2a).'?

ARGUMENT

Petitioner claims that Jennifer Aspinwall’s statements to

her mother were admitted into evidence in violation of the

Confrontation Clause of the Sixth Amendment. Peti-

tioner’s claim, however, is quite narrow. Petitioner does

not contend that Jennifer Aspinwall’s statements were not

excited utterances, nor does he argue that the excited ut-

terance exception to the hearsay rule is not firmly

rooted.'? Instead, petitioner argues that Jennifer

'? Judge Sullivan concurred in the result without opinion (Pet.

App. la). Chief Judge Everett dissented for the reasons given in his

dissenting opinion in United States v. Arnold, 25 M.J. 129, 134-135

(C.M.A,. 1987), cert. denied, No. 87-832 (Feb. 22, 1988), in which he

concluded that similar statements were not excited utterances, because

of the delay between the time of the incident and the time that the

child made the statements.

'* The courts of appeals have agreed that the excited utterance ex-

ception is firmly rooted in the common law. Puleio v. Vose, 830 F.2d

1197, 1205-1206 (1st Cir. 1987) (citing a long history of cases over the

past 200 years approving the excited utterance exception); United

States v. Moore, 791 F.2d 566, 574 (7th Cir. 1986); Haggins v.

Warden, 715 F.2d 1050 (6th Cir. 1983), cert. denied, 464 U.S. 1071

(1984); McLaughlin v. Vinzant, $22 F.2d 448, 450 (ist Cir.), cert.

denied, 423 U.S. 1037 (1975); United States v. Arnold, 25 M.J. at 133

(opinion of Cox, J.); see also United States v. Cree, 778 F.2d 474, $02

(8th Cir, 1985) (Oliver, J., dissenting).

9

Aspinwall’s statements should not have been admitted

because the government failed to show that she was

unavailable to testify at trial and because her statements

were not sufficiently reliable. Neither claim has merit.

1. Petitioner relies (Pet. 5-9) on Ohio v. Roberts, 448

U.S. 56 (1980), to support his claim that the government

should have been required to prove that Jennifer Aspin-

wall was unavailable. Roberts, however, does not require

proof of the declarant’s unavailability as a prerequisite to

the admission of every out-of-court statement. Roberts in-

volved the question whether the admission at trial of

testimony given at a preliminary hearing violated the Con-

frontation Clause, and the cases cited and discussed in the

Court’s opinion involved the introduction at trial of

testimony given at a prior judicial proceeding. /d. at 65,

74. The statement in Roberts on which petitioner

relies—that an out-of-court statement is inadmissible

unless the declarant is shown to be unavailable (id. at

69) — must be read in light of the facts of that case. As this

Court subsequently explained in United States v. Inadi,

475 U.S. 387, 394 (1986) (citations and footnote omitted),

“Roberts simply reaffirmed a longstanding rule * * * that

applies unavailability analysis to prior testimony. Roberts

cannot fairly be read to stand for the radical proposition

that no out-of-court statement can be introduced by the

government without a showing that the declarant is

unavailable.”

Although petitioner claims that Jnadi stands only for

the proposition that co-conspirator declarations can be in-

troduced without the need to show that the declarant is

unavailable, the rationale of Jnadi is broader than that.

The Court in /nadi distinguished prior testimony — requir-

ing a showing of unavailability—from other kinds of

testimony, not just from co-conspirator declarations.

While former testimony “often is only a weaker substitute

10

for live testimony,” the Court explained, other exceptions

to the hearsay rule have “independent evidentiary

significance of [their] own.” 475 U.S. at 394.

The /nadi analysis also applies to excited utterances.

Like a co-conspirator declaration, an excited utterance

“often will derive its significance from the circumstances

in which it was made.” 475 U.S. at 395. As in the case of a

co-conspirator declaration, an excited utterance may be

even more reliable than subsequent in-court testimony,

because the relationship between the parties at the time of

trial may significantly affect the reliability of the evidence

the declarant gives from the stand. Thus, like co-

conspirator declarations, excited utterances “derive much

of their value from the fact that they are made in a context

very different from trial, and therefore are usually ir-

replaceable as substantive evidence.” Jd. at 395-396.'4

Concerns over reliability do not justify requiring the

government to prove that a declarant is unavailable before

the trial court may admit excited utterances. The primary

function of the Confrontation Clause is to enhance the

reliability of the fact-finding process at trial.'5 The

historical process of defining exceptions to the hearsay

rule has identified classes of out-of-court statements that

are particularly reliable. For that reason, the Court has ex-

plained that “[{rJeliability can be inferred without more in a

case where the evidence falls within a firmly rooted hear-

say exception.” Roberts, 448 U.S. at 66.

'+ Dean Wigmore noted that evidence of this nature is “better than

is likely to be obtained from the same person upon the stand.” 6 J.

Wigmore, Evidence § 1748, at 199 (Chadborn rev. ed. 1976).

'S “The decisions of this Court make it clear that the mission of the

Confrontation Clause is to advance a practical concern for the ac-

curacy of the truth-determining process.” Dutton v. Evans, 400 U.S.

74, 89 (1970) (plurality opinion); see also Tennessee v. Street, 471 U.S.

409, 415 (1985); Roberts, 488 U.S. at 66.

11 r

Excited utterances have historically been admissible as

exceptions to the hearsay rule, because they are made

under circumstances indicating that they are sincere and

because they ordinarily are made before a person develops

a motive to fabricate. See McCormick on Evidence § 297,

at 855 (3d ed. 1984). For those reasons, excited utterances

are sufficiently reliable that the additional safeguard of

cross-examination is not constitutionally required. Excited

utterances are admissible without a showing of unavail-

ability, not because the Confrontation Clause is “a

codification of the rules of hearsay,” but because an ex-

cited utterance is one example of the situation where “the

overlap is complete” between the constitutional provision

and the hearsay rules (California v. Green, 399 U.S. 149,

155 (1970)), and because cross-examination is not neces-

sary to ensure reliability. '®

Petitioner’s argument that the government should have

been required to produce Jennifer rests largely on his

claim that his pretrial statement was “exculpatory” (Pet. 4,

7) and his corollary assertion that he was convicted solely

on the basis of Jennifer’s excited utterances (Pet. 4, 6-7,

12). Since both claims are erroneous, petitioner’s argu-

ment falls with its premises.

Petitioner’s pretrial statement is not exculpatory;'’ nor

did petitioner describe his statement in that manner at

'6 Indeed, the record indicates that petitioner did not want Jennifer

to testify at trial. At a pretrial hearing, petitioner asked the trial judge

to subpoena Jennifer and reopen the Article 32, UCMJ, 10 U.S.C.

832, pretrial investigation, or to order that the defense be allowed to

depose Jennifer and to issue a subpoena for the deposition (AX 2; Tr.

15, 21). Petitioner declined to ask the trial judge to subpoena Jennifer

to testify at trial.

'7 Petitioner admitted (GX 3; Tr. 175-176) that:

The kids came into the room again and at this time somehow they

both started to pull on the front pockets area of my pants and my

12

trial. On the contrary, at trial petitioner sought to exclude

his admissions from evidence on the ground that they had

not been corroborated (AX 7; Tr. 172). Petitioner’s

vigorous attempts to keep his pretrial statements out of

evidence thoroughly refute his present claim that those

statements were exculpatory.'® It is also inaccurate to

claim, as petitioner does, that he was convicted “solely”

(Pet. 4, 12) on the basis of Jennifer’s statements. Peti-

tioner’s sworn pretrial statement made him the principal

architect of his own conviction. Jennifer’s excited ut-

terances, although independently admissible, served to

corroborate petitioner’s admissions.

pants started to come down (unzip). My pants never left my hip

behind me but the front part was pulled down to expose my

underwear. At that time the girls both pulled on my underwear

down to expose my penis, it was pulled down to the extent that

the pants and the underwear were below my scrotum exposing my

penis and the scrotum. | was fully aware of what was going on

but did not do anything to stop them. I knew that I was feeling

something that I shouldn’t have been feeling and it scared me. At

that point, I realized that I had had a partial ejaculation as there

was seminal fluid on my hip area. The reason that occurred was

because my penis had started to go down and I always have a

release of seminal fluid when my penis goes down. I did not have

a full ejaculation nor was the partial ejaculation a result of any

caressing on the girls’ or my part. As this point, Candice then put

her hand around on my penis and kept it there at the most 2-3

seconds. She then removed it ard said something to Jennifer in a

way to prompt her to do the same thing. Jennifer then touched

me in a way that she was slapping it just to see what it felt like.

‘8 Petitioner clearly recognized at trial that this pretrial statement

was inculpatory. He disavowed those portions of the statement in

which he admitted that he was awake when the children pulled down

his pants and touched his penis, and his statement that he remembered

that the children actually touched his penis. The point was not lost on

the panel members. One of the panel members asked petitioner (AX

11; Tr. 216), “ ‘How do you account for the drastic differences be-

tween your testimony and your signed [pretrial] statement?’ ”

a

13

2. Although petitioner concedes that the excited -ut-

terance exception is a firmly rooted exception to the hear-

say rule (Pet. 10), he maintains that Jennifer Aspinwall’s

excited utterances lacked sufficient indicia of rcliability to

satisfy the Confrontation Clause. That claim lacks merit.

As this Court explained in Bourjaily v. United States, No.

85-6725 (June 23, 1987), slip op. 10 (citation omitted),

“Roberts itself limits the requirement that a court make a

separate inquiry into the reliability of an out-of-court

statement. * * * [NJo independent inquiry into reliability

is required when the evidence ‘falls within a firmly rooted

hearsay exception.’ ”

_ In any event, Jennifer’s statements to her mother were

trustworthy. In the first place, Jennifer’s statements were

corroborated by petitioner’s own pretrial statement, which

served as powerful support for the reliability of Jennifer’s

statements. Moreover, when due consideration is given to

Jennifer’s age, the testimony given by Jennifer’s mother

and Dr. Judah that Jennifer had suffered psychological

trauma, and the impulsive, nondeliberative nature of Jen-

nifer’s statements to her mother, the reliability of those

statements is apparent.'® Additionally, there was no

evidence that Jennifer had any motive to fabricate her ac-

cusations. Indeed, Mrs. Aspinwall testified that Jennifer

liked petitioner a great deal and that he had been “a great

friend” (Tr. 150). Under these circumstances, Jennifer’s

statements to her mother were sufficiently reliable to

'? The lapse of time between a startling event and the out-of-court

statement, although relevant, is not dispositive of the application of

Rule 803(2). United States v. Iron Shell, 633 F.2d 77, 85 (8th Cir.

1980), cert. denied, 450 U.S. 1001 (1981). Additionally, Jennifer’s

statement, couched in “childish terminology,” has “the ring of verity

and is entirely appropriate to a child of [her] tender years.” United

States v. Nick, 604 F.2d 1199, 1204 (9th Cir. 1979).

ee

14

justify their admission even though she was not present at

trial.

Petitioner argues (Pet. 12) that Jennifer’s statements

were unreliable because they were not volunteered but

were elicited by her mother, and because Jennifer gave

conflicting accounts to her mother and to Dr. Judah as to

whether she touched petitioner’s penis.?° Petitioner did

not rely on either ground at trial,?! but neither one is per-

suasive. If petitioner had wanted to point out a discrepan-

cy, he could have done so in other ways. Jennifer’s mother

testified at trial (Tr. 133-152), and petitioner could have

questioned her about the manner in which she asked Jen-

nifer about the incident. Moreover, even if petitioner did

not want to call Jennifer as a witness, he could have

sought to introduce her statements to Dr. Judah pursuant

to Mil. R. Evid. 803(4), which allows hearsay statements

made for the purpose of diagnosis or treatment to be ad-

mitted at trial. United States v. Welch, 25 M.J. 23

20 Petitioner asserts (Pet. 12) that “Dr. Judah also presented a

diagnosis which reflected on the reliability of the hearsay statement:

that Jennifer’s conduct was consistent with either an abused child (R.

65) or a lying child (R. 275).” Dr. Judah, however, did not testify that

he believed Jennifer was lying about the incident. On the contrary, he

testified that “I’m certain she has been subjected to sexual

molestation” (Tr. 69; see also id. at 69-70, 93), and that he did not

believe that she was lying (id. at 95: “[Trial judge]: Now, during this

interview with her, were you able to tell whether she’d been truthful to

all the answers, or do you feel that on some of them, she was being un-

truthful and trying to avoid some of the questions? [Dr.-Judah]: I felt

that she was becoming avoidant. I didn’t think she was being, quote,

untruthful. I think she was becoming more confused than anything.”).

2! Petitioner’s pretrial motion argued that Jennifer’s statements to

her mother were unreliable because they were inconsistent with his

own daughter’s account of the incident (AX 5, at 4).

15

(C.M.A. 1987).22 Petitioner apparently declined to pursue

that option because of Dr. Judah’s strongly held views that

Jennifer was a victim of sexual abuse. Accordingly, the

trial judge’s ruling that Jennifer’s statements were admissi-

ble did not deny petitioner the opportunity to challenge

the reliability of those statements.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

NORMAN G. COOPER

Col., JAGC, USA

GARY F. ROBERSON

Lt. Col., JAGC, USA

GARY L. HAUSKEN

Capt., JAGC, USA

PATRICK D. O’HARE

Capt., JAGC, USA

Appellate Government Counsel

Government Appellate Division

United States Army Legal Services Agency

MAY 1988

?2 Although the trial judge ruled that the government could not call

Dr. Judah at trial as a prosecution witness (Tr. 102), petitioner never

sought to have Dr. Judah testify as a defense witness. -

‘rt US. GOVERNMENT PRINTING OFFICE: 1988—202-037/60427