Petition for Writ of Certiorari — Ferdinand v. United States

Sumame Court, U.S,

ELLE DU

NOV 14 1889

pi F. SPA NIOL, JR.

Jn the Supreme Court of the: niled-States

OCTOBER TERM, 1989

MICHAEL S. FERDINAND, PETITIONER

- ,

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

RICHARD F. O’HAIR

Colonel, Office of The Judge

Advocate General

Counsel of Record

LYNNE H. WETZELL

Major, Office of The Judge

Advocate General

United States Air Force

HG USAF/JAJD

Bidg 5683

Bolling AFB, DC 20332-6128

(202) 767-1562

Attorneys for Petitioner

NOVEMBER 1989

QUESTION PRESENTED

Whether the petitioner was denied due process of law as

required by the Fifth Amendment to the United States

Constitution when the Court of Military Appeals held the

improperly admitted hearsay evidence of appellant’s

daughter was harmless error.

(1)

INDEX

eo Peer err Tey Tier

Sur occ 6 cnckinnttnens tessa

Constitutional and Regulatory Provisions Involved . .

df ree rere rary eT ray

Reasons for Granting the Writ .... 2... 6. .....5 6005

Conclusion ........ TT ee eee

Aappemn B. on onc edi ceuwethe ee

Agneta B o.oo. ikcnceucae nee yee eeee es eeenees

TABLE OF AUTHORITIES

Cases:

Brown v. United States, 411 U.S. 223, (1973) .....

Chapman v. California, 386 U.S. 18 (1967) .......

Delaware v. Van Arsdell, 475 U.S. 673 (1986) .....

Fahy v. State of Connecticut, 375 U.S. 85 (1963) ..

Milton v. Wainwright, 407 U.S. 371 (1972) .......

Opper v. United States, 348 U.S. 84 (1954) .......

Rose v. Clark, 478 U.S. 570 (1986) .... 2... 6.646.

Schneble v. Florida, 405 U.S. 427 (1972) .........

Smith v. United States, 348 U.S. 147 (1954) ......

Warszower v. United States, 312 U.S. 342 (1941) ..

Wong Sun v. United States, 371 U.S. 471 (1963) ..

United States v. Ferdinand, ACM 26373, slip op.

(A.F.C.M.R. April 21, 1988) ......... aah sex

United States v. Ferdinand, 29 M.J. 164 (C.M.A.

rere ote ee ray rer

United States v. Kotteakos, 328 U.S. 750 (1946) ...

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

United States v. Melvin, 26 M.J. 145 (C.M.A.

SRT ee eee

United States v. Yates, 24 M.J. 114 (C.M.A.

if) rere roe Gon are

NSAnNUUYUDUYN SW &

L w

+

~J

Constitutional Provisions:

United States Constitution Amendment 5........

United States Constitution Amendment 6 ........

Statutory Authorities:

Uniform Code of Military Justice:

Article 59(a), U.C.M.J. (M.C.M. PRR RAE RAs

Article 134, U.C.M.J. (M.C.M. ee

Miscellaneous:

Mil.R.Evid. 304(g)(2) .........................

Mil.R. Evid. 804(b)(5) ...... 0.

McCormick, Evidence, § 145 (E. Cleary 3d. Ed.

RIN RGN 6 6 Ws 6 O45 GA ws 4.044 acd agen cccc,

—_ UM N= UA

vw ws

we ny yn n wm

In the Supreme Court of the Gnited States

OCTOBER TERM, 1989

No.

MICHAEL S. FERDINAND, PETITIONER

v. P

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

The petitioner, Michael S. Ferdinand, respectfully prays

that a writ of certiorari issue to review the judgment of the

United States Court of Military Appeals entered in his case

on September 27, 1989.

OPINIONS BELOW

The opinion of the United States Court of Military Ap-

peals is reported at 29 M.J. 164 (C.M.A. 1989) (Appendix

A). An unreported decision of the Air Force Court of

Military Review was rendered April 21, 1988 (Appendix

B).

JURISDICTION

The jurisdiction of this Court is invoked under 10

U.S.C. § 867(h) (Supp. II] 1985) and 28 U.S.C. § 1259(3)

(Supp. II] 1985). The judgment of the Court of Military

Appeals was entered on September 27, 1989.

(1)

2

CONSTITUTION AND STATUTORY PROVISIONS INVOLVED

The Fifth Amendment provides:

No person shall be... deprived of life, liberty or

property, without due process of law . . .

The Sixth Amendment provides:

In all criminal prosecutions, the accused shall enjoy

the right . . . to be confronted with witnesses against

him...

Article 5%a) of the Uniform Code of Military Justice,

10 U.S.C. § 834 (1982) provides:

(a) A finding or sentence of a court-martial may not

be held incorrect on the ground of any error of law

unless the error materially prejudices the substantial

rights of the accused.

STATEMENT OF THE CASE

On August 20-21, 1987, petitioner was convicted by a

general court-martial at Offutt AFB, Nebraska, on

charges of indecent acts with his seven year old daughter,

over a two-year period, in violation of Article 134,

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

was sentenced to be confined for four years, reduced to

pay grade E-1, and dishonorably discharged.

Of his own volition, petitioner turned himself in to the

Sarpy County Sheriff's Department, admitting his sexual

misconduct with his daughter. He described incidents

where he would masturbate himself while his daughter

masturbated herself. He further admitted that on occa-

sions his daughter would touch his penis. No intercourse

ever occurred. Following his admissions, the daughter was

placed under the protection of the Sarpy County Juvenile

Count and a guardian ad litem was appointed.

3

At trial, prosecution introduced into evidence a taped

interview of the daughter by Deputy Sheriff Gabriel under

Mil.R.Evid. 804(b)(5), (hearsay exception, declarant

unavailable). To support the admissibility of the prosecu-

tion exhibit, trial counsel called Mrs. Joann Ferdinand to

the stand. Mrs. Ferdinand was subpoenaed to appear at

her husband’s trial, and to bring their daughter to the

court-martial. Additionally, the daughter was sub-

poenaed. Mrs. Ferdinand refused to bring the daughter to

the court-martial as she had a separate court order from

the Juvenile Court of Sarpy County which restrained her

daughtet “from testifying at any hearing or court pro-

ceeding outside the separate Juvenile Court of Sarpy

County, Nebraska, concerning the incidents involved in

the proceeding.” Mrs. Ferdinand refused to bring her

daughter to the court, despite the trial judge’s order to do

so. Ultimately, the judge found the daughter unavailable

under Mil.R.Evid. 804, and admitted the taped interview

as evidence against petitioner, as corroboration of this

confession. '

The Air Force Court of Military Review affirmed the

findings of guilt and approved sentence. The court found

that “no error prejudicial to the substantial rights of the

accused was committed.” United States v. Ferdinand,

ACM 26373, siip op. (A.F.C.M.R. April 21, 1988).

The United States Court of Military Appeals found the

trial judge erred in finding the daughter unavailable within

the meaning of Mil.R.Evid. 804(b)(5) and further found

the admission of the interview at trial violated petitioner’s

right to confrontation under the Sixth Amendment. United

' The United States Court of Military Appeals disagreed with the

trial judge's findings that any further efforts to secure the daughter's

presence at trial would be futile, as he never exercised his contempt

powers under Article 48, U.C.M.J., 10 U.S.C. § 848, and relied only

on her threats to disobey his order before an order was ever issued.

4

States v. Ferdinand, 29 M.J. 164 (C.M.A. 1989). Never-

theless, the court concluded that they were “convinced that

the admission of [the daughter’s} statements was harmless

error beyond a reasonable doubt.” Jd. at 168. In reaching

this conclusion, the court relied on the testimony of an Air

Force Nurse, Captain Kane, who testified that she had

conducted a vaginal examination of the daughter. Captain

Kane explained that there was no evidence of sexual

penetration; however, there was no hymen present, which

she testified was “consistent” with repeated masturbation.

She further testified that in the pre-school-age child,

masturbation is not unusual.

At the conclusion of the government’s case, the trial

defense counsel moved for a finding of not guilty, on the

basis that the daughter’s hearsay testimony did not suffi-

ciently corroborate the confession of the petitioner. The

judge agreed as to one of the specifications, and, accord-

ingly found petitioner not guilty of that particular

offense.?

REASONS FOR GRANTING THE WRIT

Every criminal defendant has the right to a fair trial in

accordance with the principles of due process guaranteed

by the Federal Constitution. This is not to say that a de-

fendant is guaranteed an error-free trial. United States v.

Hasting, 461 U.S. 499, 508-09 (1983); See also Delaware v.

Van Arsdell, 475 U.S. 673 (1986); Brown v. United States,

2 The military judge found petitioner not guilty of specification 5 of

the Charge. This specification alleged that petitioner committed an in-

decent act with his daughter by having her sit on his lap while she

masturbated herself and rubbed his penis with her legs, with intent to

gratify the sexual desires of petitioner. This specification ts

distinguishable from the other offenses of which he was convicted,

only as to the time frame during which it allegedly occurred.

5

411 U.S. 223, 231-32 (1973). Recognizing this precept,

federal and military harmless error statutes have been

enacted. 10 U.S.C. § 859%(a) (1982); 28 U.S.C. § 211

(1982); Article 59(a), U.C.M.J.; see also Fed.R.Crim.P.

52(a). Essentially, these statutes preclude reversal of con-

victions by a reviewing court when the “errors or defects

have little, if any, likelihood of having changed the results

of trial.” Chapman v. California, 386 U.S. 18, 22 (1967);

see, Rose v. Clark, 478 U.S. 570 (1986). On the other

hand, these harmless error rules emphasize an intention

not to treat as harmless those constitutional errors that

“affect substantial rights of a party.” Chapman v. Califor-

hia, supra, at 23.

When the error is of constitutional dimension, us in the

present case, the standard of review of harmless error is

necessarily strict. In Chapman, supra, this Court rejected

the argument that all constitutional errors, regardless of

the facts and circumstances, must automatically be

deemed harmful. Nevertheless, the Court stated that when

federal constitutional error is committed, reversal is re-

quired unless the reviewing court can “declare a belief that

[the error] was harmless beyond a reasonable doubt.” /d.

at 24. This beyond a reasonable doubt test requires the

reviewing court to find there was no possibility that the

error affected the decision of the trial court. See United

States v. Kotteakos, 328 U.S. 750 (1976); Schneble y.

Florida, 405 U.S. 427 (1972); Milton v. Wainwright, 407

U.S. 371 (1972). If there is a possibility that the evidence

complained of might have contributed to the conviction,

then the error of its admission cannot be deemed harmless.

Chapman v. California, supra at 827-28; Fahy v. State of

Connecticut, 375 U.S. 85 (1963).

lt is widely accepted that a conviction cannot be based

solely on an uncorroborated, out of court admission or

6

confession of the accused. See generally, McCormick on

Evidence § 145 (E. Cleary 3d Ed. 1984). As explained in

Smith v. United States, 348 U.S. 147 (1954) the purpose of

this rationale is to prevent “errors in convictions based

upon untrue confessions alone.” 348 U.S. at 153.

Warszower v. United States, 312 U.S. 342, 347 (1941). The

corroborative evidence need not be sufficient, independent

of the statements, to establish the corpus delicti. Never-

theless, the government must introduce “substantial in-

dependent evidence which would tend to establish the

trustworthiness of the statement.” Thus, the corroborative

evidence must support the essential facts admitted suffi-

ciently to justify a jury inference of their truth. Opper v.

United States, 348 U.S. 84, 93 (1954). See also, United

States v. Melvin, 26 M.J. 145 (C.M.A. 1988).

Military Rules of Evidence 304(g) tracks the present law

concerning corroboration. The rule states that a confes-

sion may be considered as evidence against the accused on

the question of guilt or innocence only if independent

evidence, direct or circumstantial, has been introduced

that corroborates the essential facts admitted to justify

sufficiently an inference of their truth. It further states

that if independent evidence raises an inference of truth of

some but not all the essential facts admitted, then the con-

fession may be considered as evidence against the accused

only with respect to those essential facts stated in the con-

fession that are corroborated by the independent evidence.

Applying Opper in Wong Sun v. United States, 371 U.S.

471, 489-90, N. 15 (1963) this Court explained that where

the crime involved physical damage or injury, the govern-

ment must prove the injury for which the accused con-

fesses. But where the crime involves no tangible corpus

deliciti the corrobative evidence must implicate the accused

in order to show that a crime has been committed. Smith

v. United States, supra, at 154.

Applying, then, the relevant test for harmless error, it is

clear in this case that the erroneous admission of the

daughter’s hearsay testimony did in fact affect the decision

of the trial court, and contributed to the conviction.

Mil.R.Evid. 304(g)(2) provides that it is the sole respon-

sibility of the military judge to “determine when adequate

evidence of corroboration has been received.” See also,

United States v. Yates, 24 M.J. 114(C.M.A. 1987). Thus,

at trial it is for the military judge to determine whether the

corroborating evidence is sufficient to “raise an inference

of the truth of the essential facts admitted.” Mil.R.Evid.

304(g)(1).

Here, the military judge, considering all the govern-

ment’s evidence, including both the nurse’s testimony and

the daughter’s hearsay statements, found the petitioner

not guilty of one specification of indecent acts, not unlike

the remaining offenses, wherein the petitioner allegedly

allowed his daughter to masturbate herself while sitting in

the petitioner’s lap. The clear impact of this ruling is that

the trial judge, in determining adequate evidence of cor-

roboration under Mil.R.Evid. 304(g)(2), did not consider

the testimony of Captain Kane adequate, standing alone,

(o corroborate petitioner’s confession. This finding by the

trial judge would be consistent with Wong Sun and Smith,

requiring the corroborating evidence to implicate the ac-

cused, as there was no tangible corpus delicti.> Because the

> Captain Kane’s testimony that the daughter had no hymen cannot

be equated to physical evidence or the corpus delicti of sexual abuse.

She testified only that such was “consistent with” masturbation. Fur-

thermore, she explained that such masturbation is not unusual in pre-

school age girls. Therefore, one can see where the trial judge could

8

military judge apparently relied completely on the con-

stitutionally forbidden testimony of petitioner’s daughter

to corroborate petitioner’s admissions, it is only

reasonable to assume that, absent that testimony, he

would have similarly entered not guilty verdicts on the re-

maining charges.

——-e

find that such evidence did not sufficiently implicate the petitioner or

adequately corroborate the confession.

9

CONCLUSION

Absent the constitutionally forbidden testimony of peti-

tioner’s daughter, the military judge might very well have

brought in not guilty verdicts on the remaining charges of

which petitioner stands convicted. Under these circum-

stances, it is completely impossible to say that the govern-

ment demonstrated, beyond a reasonable doubt, shat the

admission of the daughter’s hearsay testimony did riot

contribute to petitioner’s conviction. Accordingly, the

petitioner contends the Court of Military Appeal’s conclu-

sion of harmless error was erroneous, and the case war-

rants further examination by this Court. Therefore, the

Petition for Writ of Certiorari should be granted.

Respectively submitied,

RICHARD F. O’HAIR

Colonel, Office of The Judge

Advocate General

Counsel of Record

LYNNE H. WETZELI

Major, Office of The Judge

Advocate General

United States Air Force

HQ USAF/JAJD

Bldg 5683

Bolling AFB, DC 20332-6128

(202) 767-1562

Attorneys for Petitioner

NOVEMBER 1989

APPENDICES

—

= 1, = ee

1

APPENDIX A

UNITED STATES COURT OF MILITARY APPEALS

No. 60,322

ACM 26373

UNITED STATES, APPELLEE

Vv.

+

MICHAEL S. FERDINAND, STAFF SERGEANT

U.S. AiR FORCE, APPELLANT

September 27. 1989

Counsel

For Appellant: Major Lynne H. Wetzell (argued); Colonel

Richard F. O’Hair (on brief); Colonel Leo L. Sergi.

For Appellee: Major Carole W. Hanson (argued); Colonel

Joe R. Lamport, Lieutenant Colonel Robert E.

Giovagnoni, Major Kathryn I. Taylor (on brief).

OPINION OF THE COURT

Cox, Judge:

Appellant was tried by general court-martial convened

at Offutt Air Force Base, Nebraska, before a military

judge alone. Contrary to his pleas, appellant was found

guilty of four specifications of committing indecent acts

against his own 7-year-old daughter, C, over a 2-year

period, in violation of Article 134, Uniform Code of Mili-

(la)

2a

tary Justice, 10 USC § 934. He was sentenced to be con-

fined for 4 years, reduced to pay grade E-l, and

dishonorably discharged. The convening authority ap-

proved the sentence as adjudged, and the Court of

Military Review affirmed the findings and sentence in an

unpublished memorandum opinion dated April 21, 1988.

This Court granted review on the following issue:

WHETHER THE MILITARY JUDGE ERRED TO

THE SUBSTANTIAL PREJUDICE OF AP-

PELLANT WHEN HE RELIED ON THE ORDER

OF A STATE JUVENILE COURT DIRECTING

THAT THE VICTIM IN THIS CASE NOT

TESTIFY IN ANY OTHER COURT CONCERN-

ING THESE OFFENSES.

The Government’s case rested upon appellant’s confes-

sion, which was given to Deputy Sheriff Robin Gabriel of

Sarpy County, Nebraska, on March 30, 1987. This confes-

sion was corroborated by an earlier admission appellant

had made to his wife and by a transcript of a videotaped

interview between C and Deputy Sheriff Gabriel, which

took place on the day after the confession was obtained.

The Government offered the transcript of the interview

as an exception to the rule against hearsay, in that C was

unavailable to testify at trial and the interview had re-

quisite “circumstantial guarantees of trustworthiness”

under Mil.R.Evid. 804(b)(5), Manual for Courts-Martial,

United States, 1984. Defense counsel objected to admit-

ting the transcript, arguing that the Government had not

shown C was unavailable to testify as a witness and that

the statement was not reliable.

The Government’s proffer that C was unavailable was

based upon the following: Prior to referral of charges to

court-martial, appellant’s daughter was assigned a guard-

ian ad litem by the Separate Juvenile Court For Sarpy

3a

County, Nebraska. In addition, the Juvenile Court issued

an order on August 13, 1987, prohibiting appellant’s

daughter “from testifying at any hearing or court pro-

ceeding outside the Separate Juvenile Court of Sarpy

County, Nebraska, concerning the incidents involved in

this [Juvenile Court] proceeding.” Shortly thereafter, ap-

pellant’s wife took C and moved from their residence in

Sarpy County, Nebraska, to Blaine, Minnesota. Mrs. Fer-

dinand was personally served in Minnesota with a sub-

poena for herself and a subpoena duces fecum, ordering

her to appear at appellant’s trial and to bring her daughter

to testify. Mrs. Ferdinant appeared at trial but refused to

bring her daughter.

Mrs. Ferdinand testified that her primary reason for not

bringing her daughter was that C was undergoing therapy

as a result of the sexual abuse and forcing her to testify

would cause “a setback in her therapy.” Mrs. Ferdinand

based this upon her own observations of C, as well as the

advice of a therapist. Mrs. Ferdinand relied upon the ad-

vice of the therapist that “there is no reason to put a child

through that.” Mrs. Ferdinand also testified that she had

been told by the state-appointed guardian ad /item that if

she were to bring C to testify, in violation of the Juvenile

Court order, then the state would take custody of her

daughter.

Mrs. Ferdinand indicated that she had consulted with an

attorney prior to her decision to disobey the subpoena

duces tecum. In addition, a stipulation of testimony from

the guardian ad litem, who was also an attorney, indicated

that she also “would refuse to produce” C to testify,

“knowing full well the possible consequences of such

refusal.”

senate

4a

When questioned by the military judge as to her reasons

for not bringing her daughter, the following colloquy took

place:

Q. Do you understand you've been lawfully sub-

poenaed by the Federal Government to bring

.. « [(C] with you to testify?

A. Yes, sir.

* * *

Q. And you understand that I can order you to do

that and to comply with the subpoena, and if

you do not, I can put you in jail, do you under-

stand that?

A. Yes, Sir.

Q. Very well. | order you to bring her here to testify

in this hearing. Do you agree to do that?

A. No, Sir.

Q. Why not?

A.

Because I, as her mother, couldn’t bring her in

clear conscience. It’s not right to have her testify

against her father.

Based upon Mrs. Ferdinand’s testimony, the military

judge found that any attempt to force her to produce C to

testify would be “a futile gesture” and ruled that C was

unavailable. He also found the interview to have “circum-

Stantial guarantees of trustworthiness,” Mil.R.Evid

804(b)(5), noting C’s young age, her lack of animosity

toward her father, and the fact that appellant’s own con-

fession corroborated C’s statements. He therefore admit-

ted the document.

We are not convicted that C was unavailable within the

meaning of Mil.R. Evid. 804(b)(5). Admission of the inter-

view at trial violated appellant's right to confrontation

under the Sixth Amendment.

Sa

Child-sexual-abuse cases have compelled a dilemma of

pitting an accused’s Sixth Amendment right to confront -

and cross-examine witnesses against codified exceptions to

hearsay.' The dilemma has been no less affected by socie-

ty’s interest in protecting a child from the trauma of testi-

fying against an abusive parents or adult.”

The confrontation clause of the Sixth Amendment pro-

vides: “In all criminal prosecutions, the accused shall en-

joy the right ... to be confronted with the witnesses

against him.” By the same token, the “Rule Against Hear-

say,” McCormick on Evidence §§ 244-53 (E. Cleary 3d ed.

1984), prohibits introduction of “a statement, other than

the one made by the declarant while testifying at the trial,”

which is “offered in evidence to prove the truth of the mat-

ter asserted.” Mil.R.Evid. 801(c) and 802. Thus, the rule

against hearsay and the Confrontation Clause both reflect

“the core of the values furthered by” the “right to con-

front’ the witness at the time of trial.” California v. Green,

399 U.S. 149, 157, 90 S.Ct. 1930, 1934, 26 L.Ed.2d 489

(1970). Both “reflect{] a preference for face-to-face con-

frontation at trial.” Ohio v. Roberts, 448 U.S. 56, 63, 100

S.Ct. 2531, 2537, 65 L.Ed.2d 597 (1980) (footnote

omitted).

The Supreme Court has held, however, that the Con-

frontation Clause is not “a codification of the” rule against

hearsay. California v. Green, supra at 155, 90 S.Ct. at

1933-34. Further, although the “rule against hearsay. . .

' See Graham, The Confrontation Clause, the Hearsay Rule, and

Child Sexual Abuse Prosecutions: The State of the Relationship, 72

Minn.L.Rev. 523 (1988); Note, The Testimony of Child Victims in Sex

Abuse Prosecutions: Two Legislative Innovations, 98 Harv.L.Rev.

806 (1985).

? Cf. Coy v. Iowa, U.S. ___, 108 S.Ct. 2798, 2803-04 (1988)

(O'Connor, J., concurring).

a

6a

is riddled with exception,” Ohio v. Roberts, supra at 62,

the Court has upheld a number of these exceptions as not

being violative of the Confrontation Clause, even though

a declarant did not testify at trial. Jd; United States v.

Inadi, 475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390

(1986); Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27

L.Ed.2d 213 (1970).

Residual hearsay is permissible under Mil.R.Evid.

804(b)(5), provided the Government adequately demon-

strates the declarant’s “unavailab[ility] as a witness.” See

Mil.R.Evid. 804(a). In determining unavailability, “[t}he

ultimate question is whether the witness is unavailable

despite good-faith efforts undertaken prior to trial to

locate and present that witness.” Ohio v. Roberts, supra at

74, 100 S.Ct. at 2531; Barber v. Page, 390 U.S. 719, 88

S.Ct. 1318, 20 L.Ed.2d 489 (1968). Nonetheless, “if there

is possibility, albeit remove, that affirmative measures

might produce the declarant, the obligation of good faith

may demand their effectuation. The lengths to which the

prosecution must go to produce a witness . . . is a question

of reasonableness.’ California v. Green, 399 U.S. at 189,

n.22 . ...,” United States v. Burns, 27 MJ 92, 96 (CMA

1988), quoting Ohio v. Roberts, supra at 74 (emphasis

added). Moreover, a military judge is not merely a passive

observer in determining a witness’ unavailability. Cf.

United States v. Rousseau, 25 MJ 188 (CMA _ 1987)

(Everett, C.J., concurring in the result); United States v.

Hinton, 21 MJ 267 (CMA 1986).

Obviously, there was no problem of locating either Mrs.

Ferdinand or C. Cf. United States v. Wind, 28 MJ 381

(CMA 1989); United States v. Hubbard, 28 MJ 27 (CMA

1989). The Government had issued the subpoena duces

fecum to Mrs. Ferdinand personally at her residence in

Blaine, Minnesota, after she had moved with her daughter

trom Nebraska. It would appear that the Government had

7a

exercised reasonable, affirmative measures to secure C’s

presence as a witness. Affirmative measures to protect an

accused’s Sixth Amendment right to confront and cross-

examine witnesses, however, do not end simply with serv-

ice of a subpoena.

Although we are not satisfied with the subsequent ef-

forts by the Government and the military judge to secure

the child’s presence at trial, we do not agree with appellate

defense counsel’s argument that the military judge relied

soley on the Sarpy County Juvenile Court Order in deter-

mining that C was unavailable. The record evinces tha’

Mrs. Ferdinand’s paramount fear was the psychological

and emotional impact that testifying at trial would have

upon her daughter. She maintained her intransigence in

the courtroom, reinformed by her attorney, that she

“couldn’t bring . . . [C] in clear conscience . . . to have her

testify against her father.”

Any reliance Mrs. Ferdinand placed upon the court

order is substantially outweighed by her concern for her

daughter’s emotional welfare. The record does not

demonstrate that she thought or had been advised by

counsel that the order from juvenile court superseded the

Federal subpoena. The record also does not indicate that

the military judge found this to be the law.

The military judge’s assessment, however, that any fur-

ther efforts to secure C's presence at trial would be “futile”

was inaccurate. A military judge is hardly exercising his

contempt powers under Article 48, UCMJ, 10 U.S.C.

§ 848, when he finds that any efforts to compel a mother

to produce a child to testify would be “futile” simply

because she threatens to disobey his order before it is even

issued. Cf. United States v. Rousseau, supra.'

’ “Process issued in court-martial cases to compel witnesses to ap-

pear and testify . . . shall be similar to that which courts of the United

8a

We are mindful, as are several state jurisdictions, that a

child may be found to be unavailable to testify if a —

psychiatrist or psychologist has demonstrated that par-

ticipation in a trial would be too traumatic for the child.4

Nothing in the record indicates, however, that any deter-

mination of sort was ever made. At a minimum, there was

no determination that C herself refused to testify. See

especially United States v. Hines, 23 MJ 125, 133 (CMA

States having criminal jurisdiction may lawfully issue and shail run to

any part of the United States . . .” Art. 46, Uniform Code of Military

Justice, 10 USC § 846 (emphasis added). Article 47, UCMJ, 10 USC

§ 847, states:

(a) Any person not subject to this chapter who —

(1) has been duly subpoenaed to appear as a witness before a

court-martial, ....

(2) has been duly . . . tendered the fees ... of a witness

.; and

(3) willfully neglects or refuses to appear or refuses . . . to

produce any evidence which that person may have been legally

subpoenaed to produce;

is guilty of an offense against the United States.

(b) Any person who commits an offense named in subsection

(a) shall be tried on information in a United States district court

Although the court-martial had no final jurisdiction to punish Mrs.

Ferdinand, United States v. Praeger, 149 F.474 (D.C. Tex 1907);

United States v. Rousseau, 25 MJ 188 (CMA 1987) (Everett, C.J.,

concurring in the result), it strains credulity to suggest that an order

issued by a state court supersedes a Federal subpoena, issued by the

President of the United States, pursuant to a federal statute. US

Const. art. VI. As the record fails to show that the military judge

thought this to be the law, we need not address the power of a Federal

subpoena issued in a court-martial. Cf. United States v. Hinton, 21

MJ 267 (CMA 1986).

* Graham, supra (n.1).

9a

1986). A military judge is hardly bound to accept a

mother’s unprofessional, lay opinion that requiring a child

to testify at trial would so traumatize the child as to

outweigh an accused’ right to confrontation under the

Sixth Amendment. Under these circumstances, it was

error for the military judge to find that C was unavailable

to testify at trial.®

Upon examination of the record, however, we~are con-

vincted that admission of C’s statements was harmless

beyond a reasonable doubt.’ Cf. Coy v. Iowa, U.S.

____, 108 S.Ct. 2798, 2803 (1988); Chapman v. Califor-

nia, 386.U.S. 18, 87 S.Ct. 824, 17 L.Ed. 2d 705); United

States v. Remai, 19 MJ 229 (CMA 1985).

5 There is no indication C refused to testify as a result of any con-

trol, coercion, or influenced by appellant. /d.

¢ Although C’s statement substantially corroborates appellant’s

confession, United States v. Arnold, 25 MJ 129 (CMA 1987), cert.

denied, 108 S.Ct. 1015 (1988); United States v. Hines, 23 MJ 125

(CMA 1986), we have reservations as to whether the reliability of the

ex parte interview would pass constitutional muster. Deputy Sheriff

Gabriel testified that it was her intent to use C’s statements to cor-

roborate appellant’s confession. The transcript of the interview shows

a number of leading questions about the incidents. Nothwithstanding

Mrs. Ferdinand’s opinion that C was a truthful person, there is

nothing in the transcript of the interview to indicate that C understood

the difference between telling the truth and telling a lie. Finally,

Deputy Sheriff Gabriel interviewed C alone, with no opportunity for

appellant to effect any type of cross-examination. Cf. California v.

Green, 399 U.S. 149, 157, 90 S.Ct. 1930, 1934, 26 L.Ed.2d 489 (1970).

These factors place the statement within the realm of the “investigative

process” that we have heretofore found suspect United States v.

Barror, 23 MJ 370, 372 (CMA 1987) (citing Hines). As this issue was

not raised on appeal, we need not address it here.

? In addition to appellant’s confession and admission to his wife

about molesting his daughter, an Air Force Nurse gave corroborating

physical evidence after having examined appellant’s daughter.

10a

The decision of the United States Air Force Court of

Military Review is affirmed.

Chief Judge EVERETT and Judge SULLIVAN concur.

APPENDIX B

_UNITED STATES AIR FORCE COURT OF

MILITARY REVIEW

ACM 26373

UNITED STATES

Vv.

STAFF SERGEANT MICHAEL S. FERDINAND, FR 473-86-5677

UNITED STATES AIR FORCE

21 April 1988

Sentenced adjudged 21 August 1987 by GCM convened at

Offutt Air Force Base, Nebraska. Military Judge: Stephen

R. Bloss (sitting alone).

Approved Sentence: Dishonorable discharge, confinement

for four (4) years and reduction to airman basic.

Appellate Counsel for the Appellant: Colonel Leo L. Sergi

and Captain Lynne H. Wetzell. Appellate Counsel for the

United States: Colonel Joe R. Lamport, Lieutenant Col-

onel Robert E. Giovagnoni, Lieutenant Colonel Morris A.

Tanner, Jr. and Major Carole W. Hanson

Before

SESSOMS, LEWIS and BLOMMERS

Appellate Military Judges

DECISION at

PER CURIAM:

We have examined the record of trial, the assignment of

errors submitted on the appellant’s behalf pursuant to

(lta)

12a

United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982),

and the government’s reply thereto and have conciuded

that the findings and sentence are correct in law and fact

and that no error prejudicial to the substantial rights of

the accused was committed. See Strickland vy.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984); United States v. Hines, 23 M.J. 125 (C.M.A.

1986); United States v. Sales, 22 M.J. 305 (C.M.A. 1986);

United States v. Cox, 18 M.J..72 (C.M.A. 1984). Accord-

ingly, the findings of guilty and sentence are

AFFIRMED.

SEAL

OFFICIAL:

/s/ LAURA L. GREEN

Documents Examiner

Court of Military Review

US GOVERNMENT PRINTING OFFICE 1989—251.156/62081