Opposition — Avila v. United States

In the Supreme Court of the Bnited States

OCTOBER TERM, 1989

DOMINGO AVILA, 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

KENNETH W. STARR

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

JOE R. LAMPORT

Col., OJAG, USAF

ROBERT E. GIOVAGHMONI

Col., OJAG, USAF

Morris D. DAvis

Capt., OJAG, USAF

Appellate Government Counsel

Government Trial and Appellate

Counsel Division

Headquarters, United States Air Force

Bolling Air Force Base

Washington, D.C. 20332

QUESTION PRESENTED

Whether the admission of the testimony of a psychologist

concerning statements made to her by the victim, who

testified at trial, was harmless error.

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TABLE OF CONTENTS

Page

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Nee ee ay enews We |

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TABLE OF AUTHORITIES

Cases:

Chapman v. California, 384 U.S. 18 (1967) .... 6

Nelson v. O’Neil, 402 U.S. 622 (1971) ......... 6

O'Callahan v. Parker, 395 U.S. 258 (1969) ..... 5

Solorio v. United States, 483 U.S. 435 (1987) ... 5

United States v. Hasting, 461 U.S. 499 (1983) .. 6-7

United States v. Owens, 108 S. Ct. 838 (1988) .. 6

Constitution, statute, and rules:

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

Uniform Code of Military Justice, Art. 59(a), 10

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nck tees ce pee bene es 6

i a dee ce renasccoveess 5, 6

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Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1989

No. 89-623

DOMINGO AVILA, 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

OPINIONS BELOW

The initial opinion of the Air Force Court of Military

Review (Pet. App. 16a-23a) is reported at 24 M.J. 501. The

opinion of the Court of Military Appeals reversing the judg-

ment of the court of military review and remanding the case

to that court (Pet. App. 6a-15a) is reported at 27 M.J. 62.

The opinion of the court of military review on remand (Pet.

App. 2a-5a) is unreported. The order of the Court of

Military Appeals affirming petitioner’s conviction (Pet.

App. la) is not yet officially reported.

JURISDICTION

The judgment of the Court of Military Appeals was

entered on September 1, 1989. The petition for a writ of

certiorari was filed on October 18, 1989. The jurisdiction

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

IV 1986).

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2

STATEMENT

Following a general court-martial at McChord Air Force

Base in Washington, petitioner, a member of the United

States Air Force, was convicted of committing sodomy with

his four-year-old step-daughter, Diana Pollock. The court-

martial sentenced petitioner to confinement for ten years,

a dishonorable discharge, reduction to the lowest enlisted

grade, and forfeiture of $319 of his pay and allowances

per month for ten years. The convening authority reduced

the period of petitioner’s confinement (and the correspond-

ing forfeiture of his pay) to seven years, but otherwise ap-

proved the findings and sentence. The Court of Military

Appeals affirmed petitioner’s conviction and sentence.

1. The evidence at trial showed that on December 24,

1985, petitioner sexualiy molested his step-daughter by twice

engaging in sodomy with her. Pet. App. 4a-5a. The ques-

tion presented in the petition stems from the introduction

at trial of the testimony of Dr. Kathleen Mayers, a clinical

psychologist, regarding statements Diana made to her dur-

ing a pretrial examination. Jd. at 13a-14a.

Dr. Mayers testified that, while being examined, Diana

referred to both male and female genitalia as a “boo-boo.”

Tr. 318. Diana told Dr. Mayers that petitioner had placed

his “boo-boo” in her mouth on one occasion and that peti-

tioner had also placed his mouth on her “boo-boo”; that

the incident took place around Christmas, while the weather

was cold; and that “Daddies” need to learn not to touch

girls in their genital area. Tr. 318-319, 329-330.

The government’s other evidence consisted of Diana’s

testimony as well as oral and written statements made by

petitioner. Diana, who was four years and seven months

of age at the time of trial, testified over a two-day period.

Her testimony the first day was limited. Diana was reluc-

tant to answer questions about the offense because she had

3

been instructed by her mother, petitioner’s wife, not to tell

anyone what had happened to her. Diana testified that “[s}he

said not to tell the Judge anything.” Tr. 340. Diana also

said that her mother threatened to spank her if she talked

about the incident. Tr. 357. Nonetheless, Diana said that

petitioner did something to her while her mother was not

home that he should not have done. Tr. 349, 354. Diana

said that “Daddy sucks me,” Tr. 352, which she described

as being “[yJuckie,” Tr. 355. Diana indicated she referred

to genitalia as a “boo-boo.” Tr. 354. She indicated the inci-

dent had taken place around Christmas, Tr. 358, and that

petitioner had drunk beer, which made his breath “smell

funny.” Tr. 359. When asked to describe what she meant

by “daddy sucks me,” Diana repeated “I don’t want to” and

“IT can’t.” Tr. 360-361. g

The second day Diana identified “daddy” as petitioner.

Tr. 363. After testifying that petitioner did “[b]Jad things

to me,” Tr. 368, Diana again refused to explain what peti-

tioner had done to her, saying her mother told her not to

tell anybody. Tr. 370. During cross-examination, Diana said

petitioner came home one evening around Christmas after

he had been drinking. She said petitioner broke his bed and

went into the kitchen and threw things on the floor. Tr.

383-384. On redirect examination, Diana said that her

mother was at a bible study meeting when the incident hap-

pened. Tr. 392. She said petitioner called her to his

bedroom, and “[{hje did bad things to me,” which she

described as “[h]e sucked me.” Tr. 393. Diana was presented

with anatomically correct dolls, see PX 4-5, and asked if

she could show the court what had happened. Diana re-

fused, saying that her mother told her not to use the dolls

to show anyone what had happened. Tr. 395. Diana also

reiterated that petitioner had done something to her that

she did not like. Tr. 401.

4

At a hearing held outside the presence of the court-martial

panel members, the trial judge explained to Diana that

anyone, including her mother, who had told her not to tell

the court what had happened to her, was wrong and that

Diana should answer the questions. Diana promised that

she would do so. Tr. 407-409. When the panel members

returned, Diana was given a doll representing a female child,

PX 6, another doll representing an older female, which

Diana called “Debbie,” her mother, PX 5, and a male doll,

which Diana referred to as “Domingo,” petitioner, PX 4.

Tr. 411-412. Diana pointed to the genital area of the “Diana”

doll and referred to it as a “boo-boo.” Tr. 413. When asked

what happened to her there, Diana responded, “Daddy does

bad things to me.” Tr. 413. Diana said petitioner was naked

when this happened. Tr. 414. When asked to use the dolls

to demonstrate what had happened, Diana placed the head

of the female child doll over the genital area of the male

doll. Tr. 415. Diana said petitioner placed his “boo-boo”

in her mouth, and she described it as being “yuckie.” Tr.

416. She said that this occurred when petitioner called her

into his bedroom. Tr. 417. When asked if anything came

out of petitioner’s “boo-boo,” Diana said, “Yes.” Tr. 418.

Special Agent Russell Barker of the Air Force Office of

Special Investigations, who interviewed petitioner three

weeks after the incident, also testified for the government.

During that interview, petitioner initially denied that he had

sexually assaulted Diana, but he said he drank heavily dur-

ing December 1985 and that there were periods in which

he did not remember what he had done. Petitioner said that

if he had sexually assaulted Diana, it was during one of those

periods. Tr. 426. Petitioner prepared a handwritten state-

ment for Agent Barker in which he said, “I really do not

OM Oe, MORO eH “ ~~

know if it is me but if it is I have to know for me and my

family.” PX 1.!

2. On appeal, petitioner argued that the trial judge erred

in allowing Dr. Mayer to testify as to Diana’s statements

to her. The court of military review held that the admis-

sion of that testimony was harmless, “find[ing] that the in-

admissible evidence had a minimal effect, if any, on resolv-

ing [petitioner’s] guilt or innocence.” Pet. App. 5a.? The

court explained that Diana was the principal witness against

petitioner, that she was present and subjected to cross-

examination, and that much of petitioner’s own testimony

at trial corroborated Diana’s account of the incident. /d.

at 4a-Sa. ‘e

The Court of Military Appeals summarily affirmed the

judgment of the court of military review. Pet. App. la.

' In response to an inquiry by the agent, petitioner also described

a “game” that petitioner played with Diana called “suck Daddy,” in

which petitioner would place his tongue inside Diana’s mouth when kiss-

ing her. Tr. 426.

2 The military appellate courts issued several opinions in this case

before petitioner’s conviction was finally upheld. On petitioner’s ap-

peal from his conviction, the court of military review vacated the con-

viction and sentence on the ground that the offense was not service-

connected under O’Calliahan v. Parker, 395 U.S. 258 (1969). Pet. App.

16a-23a. The Court of Military Appeals reversed that judgment in

reliance on Solorio v. United States, 483 U.S. 435 (1987), which had

overruled the decision in O’Callahan. Pet. App. 8a-13a. The Court of

Military Appeals then went on to address the admission of Dr. Mayers’s

testimony pursuant to Mil. R. Evid. 803(4). The court held that the

testimony was inadmissible under that rule, and remanded the case to

the court of military review to determine whether the error was harmless.

Pet. App. 13a-15a. On remand, the court of military review, sitting

en banc, held that the error was harmless, id. at 2a-Sa, and the Court

of Military Appeals summarily affirmed, id. at la.

6

ARGUMENT

Petitioner’s sole contention is that the admission of Dr.

Mayers’s testimony was not harmless error.

Petitioner’s principal claim is that the courts below misap-

plied the harmless error test adopted in Chapman v. Califor-

nia, 384 U.S. 18 (1967), to determine whether a constitu-

tional error is harmless. Pet. 3-5. The premise of petitioner’s

argument is that the admission of Dr. Mayers’s testimony

violated the Confrontation Clause of the Sixth Amendment.

Petitioner, however, did not object at trial to the admis-

sion of Dr. Mayers’s testimony on that ground; petitioner’s

sole challenge to the admission of Dr. Mayers’s testimony

was that it did not satisfy the requirements of Mil. R. Evid.

803(4) as a statement made for the purpose of medical

diagnosis or treatment. Tr. 131, 237-240. Petitioner has

therefore waived any Confrontation Clause claim. In any

event, since Diana testified at trial and was cross-examined,

the admission of Dr. Mayers’s testimony did not violate the

Confrontation Clause. United States v. Owens, 108 S. Ct.

838, 843 (1988) (under the Confrontation Clause, an inquiry

into the reliability of an out-of-court statement is un-

necessary “when a hearsay declarant is present at trial and

subject to unrestricted cross-examination”); Nelson v.

O’Neil, 402 U.S. 622, 626-627 (1971). The courts below

therefore properly treated the harmless error inquiry as one

that involved only the harmless error statute applicable in

the military courts.’

The question whether an error is harmless must be deter-

mined by reviewing the entire record. United States v.

> Article 59(a) of the UCMJ, 10 U.S.C. 859(a), which paraliels 28

U.S.C. 2111 and Fed. R. Crim. P. 52(a), provides that “{a] finding or

sentence of [a] court-martial may not be held incorrect on the ground

of an error of law unless the error materially prejudices the substantial

rights of the accused.” ;

beeen

7

Hasting, 461 U.S. 499, 509 (1983). The courts below prop-

erly carried out that inquiry. Dr. Mayers’s testimony (in-

cluding the testimony given on cross-examination) was

relatively brief, Tr. 315-321, 326-330, 333, 478-484, 486, and

the portion of her testimony that was held erroneously ad-

mitted consisted of approximately two pages of a 270-page

trial transcript, Tr. 318-319, 329-330. Moreover, the

statements made by Diana that Dr. Mayers related did not

describe any event that Diana did not herself relate while

on the stand. In addition, petitioner confirmed much of

Diana’s account of the events leading up to the act of

sodomy.‘ Before trial petitioner said on at least two occa-

sions that he was uncertain whether he had committed the

act due to his bouts of heavy drinking during December

1985,° and petitioner also described an event that occurred

during the following month that corroborated Diana’s

testimony.® Under these circumstances, the concurrent

* Petitioner testified at trial that he came home drunk about three

nights each week during December 1985 after drinking 10-15 beers. Tr.

435, 464. He said that he was intoxicated on Christmas eve, had an

argument with his wife, and started “ripping up the house.” Tr. 436.

Diana witnessed what was going on and began to cry. Petitioner then

went to her room and “tore up her bedroom.” Tr. 437.

> Petitioner explained the comments in his written statement by say-

ing “I was confused.” Tr. 446. On cross-examination, petitioner said

he had not passed out on Christmas Eve, but he admitted previously

telling an Air Force Social Actions officer that he had “blacked out”

or “passed out” on that night. Tr. 467. Petitioner also admitted that

before he spoke with Agent Barker on January 15, 1986, petitioner told

a Sergeant Swenson that he did not believe he had molested Diana unless

he was drunk. Tr. 469.

* Petitioner testified that on January 9, 1986, Diana became upset

when her mother began to leave for a bible study meeting. Diana asked

her mother not to leave “because something terrible is going to happen

to me.” Tr. 441. Petitioner said that Diana mentioned something about

“a sucking thing,” but that neither he nor his wife understood what

Diana meant by that comment. Tr. 442.

8

findings of the military appellate courts that the error in

this case was harmless do not warrant review by this Court.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

JOE R. LAMPORT

Col., OJAG, USAF

ROBERT E. GIOVAGNONI

Col., OJAG, USAF

Morris D. DAvis

Capt., OJAG, USAF

Appellate Government Counsel

Government Trial and Appellate

Counsel Division

NOVEMBER 1989

vy US GOVERNMENT PRINTING OFFICE 1989—262-203/00610