Petition for Writ of Certiorari — Cox v. United States

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

TECHNICAL SERGEANT TERRY H. COX,

PETITIONER

Vv.

UNITED STATES OF AMERICA, RESPONDENT

Petition For a Writ of Certiorari to the

United States Court of Appeals for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

Ormond R. Fodrea

Major, United States Air Force

Appellate Defense Division

Counsel of Record

Michael L. McIntyre

Captain, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

Air Force Legal Services Agency

Appellate Defense Division

172 Luke Avenue, Suite 343

Bolling AFB, DC 20332-8000

202-767-1562

December 1996

QUESTION PRESENTED

Whether the United States Court of Appeals for the

Armed Forces erred when it held that plain error had not

occurred at petitioner’s court-martial when the chief of

military justice at the base petitioner was court-martialed,

who had been the former prosecutur on the case and

conducted an investigation, testified on behalf of the

government that he had determined that there was a legitimate

basis for the charges against petitioner.

TABLE OF CONTENTS

Page

I se og oot i cs Sees ag ko tae l

Re Ds ae ee eS ee ee 2

CONSTITUTIONAL PROVISIONS INVOLVED ........ 2

asus memaees GP BEM CASE... 0. ccc ccc cc cc ccuccccs 2

REASON FOR GRANTING THE WRIT ............... 4

THE UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES ERRED WHEN IT

HELD THAT PLAIN ERROR DID NOT OCCUR

AT PETITIONER’S COURT-MARTIAL WHEN

THE CHIEF OF MILITARY JUDTICE AT THE

BASE PETITIONER WAS COURT-MARTIALED.

WHO HAD ALSO BEEN THE PROSECUTOR IN

THE CASE, TESTIFIED ON BEHALF OF THE

GOVERNMENT THAT THERE WAS A

LEGITIMATE BASIS IN FACT FOR THE

CHARGES AGAINST PETITIONER AND THAT

HE HAD DETERMINED THAT THERE WAS A

LEGITIMATE BASIS FOR THE CHARGES

AGAINST PETITIONER.

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APPENDIX A (Opinion of the United States

Court of Appeals for the Armed Forces)................ la

APPENDIX B (Opinion of the United States

Air Force Court of Criminal Appeals) ................ 13a

iv ie

TABLE OF AUTHORITIES

Page

Supreme Court Cases:

United States v. Olano, 507 U.S. 725 (1993) ......... g

Military Cases:

United States v. Clifton, 1S M.J. 25 (CMA 1983) ...... 8

United States v. Cox, No. 95-0873, _M.J. _

Ch RE Dt oc 64 nk coke ap bONae bins smhaoes 2

United States v. Cox, 42 M.J. 647

CAP CEA REA TE 656 0 6b io wen pia wdenerdeese 4

United States v. Fisher, 21 M.J. 327

Per SOD. <a Ci dba re ehiae leh ee eee 9

United States v. Fortner, 34 M.J. 836

CRP EES i a BAG deeds eos akesei ee 8

United States v. Garces, 32 M.J. 345

CE es SEE 8 oe a ade PGS eek ee 8

United States v. Knickerbocker, 2 M.J. 128

eT Do gs er or eee RAE per eee 6

United States v. Hebert, 32 M.J. 707

CF Ss SES 5 obese oda dnd see 8

Federal Statutes:

28 U.S.C.A. § 1259(3) (West Supp. 1996) ...........

10 U.S.C.A. § 867a (West Supp. 1996) .............

Constitutional Provisions:

U.S. Constitution Amendment V ..................

Other Authorities

ABA Rules of Professional Responsibility ...........

Air Force Rules of Professional Responsibility .......

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

No.

TECHNICAL SERGEANT TERRY H. COX,

PETITIONER

V.

UNITED STATES OF AMERICA, RESPONDENT

Petition For a Writ of Certiorari to the

United States Court of Appeals for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

The petitioner, Technical Sergeant Terry H. Cox,

respectfully prays that a writ of certiorari issue to review the

order and judgment of the United States Court of Appeals for

the Armed Forces entered in his case on 27 September 1996.

OPINIONS BELOW

The order and judgment of the United States Court of

Appeals for the Armed Forces is not yet reported in an

advance sheet or the Military Justice Reporter. The decision,

No. 95-0873, _M.J._ (27 September 1996), is located at

Appendix A. The opinion of the United States Air Force Court

of Criminal Appeals as reported at 42 M.J. 647 (AF Ct. Crim

App 1995), is located at Appendix B.

JURISDICTION

The judgment of the United States Court of Appeals for

the Armed Forces was entered on 27 September 1996. The

jurisdiction of this Court is invoked under 28 U.S.C.A. § 1259

(3) (West Supp. 1996) and 10 U.S.C.A. § 867(a) (West Supp.

1996).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment of the Constitution of the

United States provides in relevant part: No person

shall . . . be compelled in any criminal case to be a

witness against himself nor be deprived of life,

liberty, or property, without due process of

law....

STATEMENT OF THE CASE

Petitioner and his wife, Karla, had been married nearly

10 years at the time of trial. They had two children: Kalyn

Marie, born on 16 November 1985, and Courtney Raye Cox,

born 16 December 1988. (R. 413). The Cox’s were a happy

and loving couple, who made it a priority to spend quality

time with their children. When allegations of child

molestation surfaced, Mrs. Cox was completely stunned.

(R. 163). Mrs. Cox testified that her daughters’ claims “blew

[her] away” (R.192). According to Mrs. Cox, petitioner was a

good father, whose children respected and loved him a great

deal. She had never seen any improper interaction between

her children and her husband and the children never exhibited

any inappropriate behavior which would give rise to

suspicions of sexual abuse.

The allegations of abuse arose on 25 July 1992, when

Kalyn Cox was caught playing “sexy” or “gross” with her

friend, Auna Palangi, at Auna’s house. (R. 98). Auna’s mother

walked into her daughter’s bedroom to find the children

engaged in hugging on the bed. (R.89-90). When Mrs. Palangi

separately questioned the girls, they each explained that they

were “playing house” and “french kissing.” (R. 87-94). Auna

told her mother that she learned those things from Kalyn.

(R.91). When Mrs. Palangi questioned Kalyn, Kalyn pleaded

with Mrs. Palangi not tell her mother, for fear Kalyn would get

in trouble. (R. 93). Mrs. Palangi asked Kalyn where she

learned the things that she and Auna had been doing. Kalyn

replied that she had learned them “from the movies her mom

had thrown away...the one’s [sic] with the naked people in

them.” (R. 92). After this disclosure, Mrs. Palangi waited for

Kalyn’s mother to arrive so that she could handle the matter.

(R. 93). Shortly thereafter, Mrs. Cox called, and Mrs. Palangi

asked her to come over right away. (R. 93). When Mrs. Cox

arrived, she questioned Kalyn further. According to Mrs. Cox,

Kalyn then made allegations of having been sexually abused at

the hands of her father. (R. 156).

When Mrs. Cox became aware of the allegations of child

sexual abuse, she did not report the alleged abuse disclosed by

her daughter until five days later. (R. 163). Sometime during

those five days, Mrs. Cox was told by a friend that if she did

not make a report, Social Services could take Kalyn and

Courtney away from her. (R. 183). In fact, one social worker

informed Mrs. Cox that “if it appeared that she (Mrs. Cox)

was cooperating with her husband, she could end up losing

her children” for that reason as well. (R. 183).

The petitioner was found guilty as outlined above and his

conviction was affirmed by the Air Force Court of Criminal

Appeals (AFCCA). United States v. Cox, 42 M.J. 647 (AF Ct.

Crim App 1995). On 27 September 1996 the Court of Appeals

for the Armed Forces likewise confirmed petitioner's

conviction.

REASON FOR GRANTING THE WRIT

PLAIN ERROR OCCURRED WHEN THE

INSTALLATION’S CHIEF OF MILITARY

JUSTICE AND FORMER PROSECUTOR ON

APPELLANT’S CASE TESTIFIED FOR THE

GOVERNMENT THAT HE ASCERTAINED

THAT THE CHARGES '- AGAINST

APPELLANT HAD A LEGITIMATE BASIS IN

FACT.

This issue is most troublesome, because it involves

conduct by a member of the bar and an attorney who had been

assigned as the prosecutor in a criminal case, and who testifies

at the subsequent criminal trial as a person experienced in the

detection of determining the truth of allegations, all to the

extreme prejudice of petitioner. Specifically, a chief of

military justice! ignored one of the basic rules of practice,

became a witness in a case, and continued in the case in a

manner which, essentially, presented a conflict of interest. As

a potential witness, he was nonetheless preparing other

witnesses for trial. He then proceeded to repeatedly state, in

front of the panel who were aware of his position and role in

the case, that he had determined that the charges were

“legitimate”, i.e., that petitioner was guilty.

Major Treanor, the Chief of Military Justice, was initially

The Chief of Military Justice at an Air Force Base runs the

criminal justice system on a base.

the assistant trial counsel on petitioner’s case (prosecutor), but

was removed from the case shortly after the Article 32

Investigation so that a less experienced attorney, Captain

Wink, could act as assistant trial counsel to gain experience.

(R. 468). By the time he was removed, Major Treanor had

already interviewed (as the p,osecutor) Courtney Cox. By

this action, he become a potential witness in the case (R. 462).

In January 1993, Major Treanor was re-assigned to the case

because Captain Wink had other obligations. (R. 468). Major

Treanor had been informed in December 1992 by defense

counsel that he might be a witness in the case (R. 471), but

the record reveals no demur on his being re-assigned to the

case as assistant trial counsel. He then continued to prepare

the case, and withdrew from the case only a few days before

trial. (R. 458). Free of the burden of being a prosecutor in the

case, Major Treanor was called as a government witness and,

after identifying himself as Chief of Criminal Law and as a

part-time Deputy Staff Judge Advocate, testified in response

to a question by defense counsel regarding his qualifications

to interview child witnesses:

Certainly I, as an attorney, as the Chief of Military

Justice, have an ethical obligation to ascertain if

there is a legitimate basis or not in fact to go

forward with charges in a prosecutorial mode

against someone. (R. 454).

With regard to Courtney Cox, he said:

I had to find out in my own mind if there was a

legitimate basis for going forward with a charge

involving this youngest Cox daughter against her

father, I needed to find out if it was there or not. (R.

454).

On re—direct examination, Major Treanor said:

We as prosecutors, we as attorneys, have an ethical

obligation not to bring fraudulent charges, bad faith

prosecutions, so on and so forth. In other words we

have to be certain in our own mind that there is a

legitimate factual basis to go forward with

allegations against an accused. To do otherwise is

not only a breach of faith as professionals, but is

something which will undermine the entire judicial

system, and that’s why we have an obligation to get

to the bottom of what the facts are. (R. 474).

Argument

If Major Treanor been the trial counsel, the Rules of

Professional Responsibility would not have allowed him to

say such things to the jury. See, Standards for the

Administration of Criminal Justice, The Prosecution Function,

section 5.8 (b), American Bar Association; and United States

v. Knickerbocker, 2 M.J. 128 (CMA 1977). The conduct of an

Air Force Judge Advocate during the course of a trial is

subject to strict guidelines by the Air Force Rules of

Professional Responsibility, rules of evidence, and case law.

The Rules of Professional Responsibility prohibit an attorney

in a case from making extrajudicial public comments

regarding the guilt or innocence of a defendant [Rule

3.6(b)(4)]. An attorney may not act as an advocate in a case

where he is likely to be a witness [Rule 3.7]. An attorney may

not “assert personal knowledge of facts in issue except when

testifying as a witness, or state a personal opinion as to the

justness of a cause, ... or the guilt or innocence of an

accused. .. .” [Rule 3.4(e)]. The alarming tendency of

attorneys to either inadvertently become witnesses or to

cross-examine witnesses based on personal knowledge was

the subject of discussion at the Judicial Conference of the

United States Court of Appeals for the Armed Forces, held in

May 1995. Professor Imwinklereid discussed this

phenomenon, noting that disciplinary authorities should

enforce this prohibition with “special vigor.” Professor

Edward J. Imwinklereid, Ethics, The Judicial Conference,

United States Court of Appeals for the Armed Forces, 1995,

Sec. 12.8.

In the instant case, we have a situation where a trial

counsel, who was the Chief of Military Justice and at one time

appointed to be a prosecutor in petitioner’s case, seems to

have manipulated the system in order to prepare the case, then

become a witness. An example of this may be clearly found in

the record of trial, at p. 461. On cross—examination, defense

counsel asked Major Treanor whether he was trying to “get all

the charges” he could at that point; Major Treanor responded

that he was trying to ascertain that he had “good faith”

charges. Defense then questioned Major Treanor about the

role of prosecutors in an investigation, i.e. whether it was true

that they should interview witnesses but not become

investigators themselves. Major Treanor then, again,

discussed the need to ascertain that charges were “legitimate.”

Finally, the defense counsel noted that Major Treanor was not

answering the questions asked. The Chief of Military Justice

took every opportunity to state, on the stand, that he had

personally determined that the charges were “legitimate”, i.e.

that petitioner was guilty. These statements, many made in the

guise of answers on cross—examination, were not even

responsive to the questions asked. The scenario replayed itself

at least one other time during the cross—examination (R. 463).

In essence, Major Treanor had the best of both worlds: he

investigated the case and prepared it for prosecution, then

acted as a witness in the same case.

Although Major Treanor indicated that the decision to

withdraw was made at the last minute, literally a few days

before trial (R. 458), his own testimony was in conflict with

that assertion. First, Major Treanor was aware that he was a

potential witness in the case. He had been informed by

Captain Murrey, one of the defense counsel, of this possibility

on the day of the Article 32 Investigation into the case.

Further, he conducted a witness interview with only the

alleged victim’s mother present. Any competent attorney

would have been aware that he could become a witness.

Despite this impediment to his impartiality and clearly defined

role as an advocate, he continued to prepare the case as a

prosecutor, to include preparing the witnesses for trial. Only a

few days before trial, Major Treanor finally recognized his

ethical obligation and withdrew from the case. Suddenly

available to be a witness, he proceeded to tell the panel, in

hardly veiled references, that petitioner was guilty.

This conduct undercuts the clear intent of the ethical

requirements placed on advocates. For obvious reasons, there

is no case law directly on point with this scenario. However,

as a policy matter, case law discourages this type of conduct.

In United States v. Clifton, 15 M.J. 25, 30, n.5 (CMA 1983),

the Court of Military Appeals (now the Court of Appeals for

the Armed Forces), in obiter dicta, expressed disapproval

where a prosecutor asserted that the defendant in that case

was a liar, noting that it was unprofessional for a prosecutor to

express an opinion as to the truthfulness or falsity of

testimony or evidence. See also, United States v. Fortner, 34

M.J. 836, 840, n.2 (AFCMR 1992). In United States v.

Hebert, 32 M.J. 707 (ACMR 1991), aff’d 35 M.J. 266 (CMA

1992) a prosecutor made loud references at a break about the

“guilty son of a bitch” who was “going to jail.” The

statements were not made in the hearing of the panel, but the

Court was sufficiently concerned about this impropriety to

note this misconduct in its opinion. The remedy for

prosecutorial misconduct which would result in a miscarriage

of justice is mistrial. United States v. Garces, 32 M.J. 345

(CMA 1991). As a policy matter, it is clear that the ethical

Standards of the legal profession strongly discourage

prosecutors, and attorneys in general, from becoming

witnesses in their own cases, and from commenting on the

truthfulness of evidence or testimony. By stating that the

charges had a factual basis, this is exactly what Major Treanor

was doing. If the charges were based in fact, then clearly the

Statements, on the stand and to Major Treanor in interviews,

by the alleged child victims were truthful and should therefore

be believed.

The lower courts correctly noted that this is a question of

plain error, as defense failed to object on the grounds of

prosecutorial misconduct, conflict of interest, or the fact that a

witness was providing a personal opinion as to the truth of the

allegations. In order for plain error to be found, there first

must be an error. Second, the error must be “plain.” “Plain” is

Synonymous with “clear” or, equivalently, “obvious.” Third,

the error must “affec[{t] substantial rights.” United States v.

Olano, 507 U.S. 725, 113 S. Ct. 1770, 123 L.Ed.2d 508

(1993). In addition to being “obvious and substantial, it must

also have ‘have had an unfair prejudicial impact on the jury’s

deliberations.’” United States v. Fisher, 21 M.J. 327, 328-29,

(CMA 1986).

That there was error should be undeniable, as the former

prosecutor, only recently withdrawn, made inflammatory

remarks regarding the guilt of petitioner to the panel about the

legitimacy of the charges. While not technically within the

confines of the ethical and case law prohibitions because he

was not actually the prosecutor, the court members on the jury

panel were aware that he was the prosecutor until only

recently, so petitioner contends the impact is the same. Major

Treanor placed his personal stamp of approval, directly before

the members, on the legitimacy of the charges against

petitioner. Obviously, the charges were before the

courtmembers because someone in authority believed them to

10

be true. However, a witness, and certainly a former prosecutor

on the case, cannot provide a personal opinion to a jury about

the truthfulness of a witnesses testimony or the truthfulness of

the charges. To allow a prosecutor to evade the ethical rules

and the clear guidelines set by case law would be setting a

precedent that would be unhealthy in the extreme. Error

occurred. ‘

It is incontrovertible that petitioner suffered extreme

prejudice because of the statements of the Chief of Military

Justice. The lower courts’ determination that there was no

prejudice because the remarks were limited to referral or

preferral of charges, as opposed to the ultimate question of

guilt, is curious in light of the absence of any such distinction

in the record. In fact, Major Treanor specifically referred to

his ethical obligation “not to bring fraudulent charges, bad

faith prosecutions. . .” (emphasis added) and to ascertain that

there was a “legitimate factual basis” for the same. (R. 474).

Nothing in the testimony could lead a court member to

believe that these remarks were limited only to referral or

preferral.

The determination that there was no prejudice because

“Major T’s comments apparently had minimal impact on the

members, Cox, 42 M.J. at 653, is unsupported by the record.

According to the lower courts, “minimal impact” was

indicated because there was an acquittal on one charge

concerning Kayla Ahner. The problem with this reasoning is

that most of Major Treanor’s testimony concerned the Cox

children, not the Ahner child. Kayla Ahner testified at trial;

Courtney Cox did not. It is unclear what military appellate

courts would have regarded as “impact,” but it is clear that

petitioner was convicted on all charges regarding the Cox

children and that he received 14 years in confinement.

There was prejudice arising from Major Treanor’s

testimony simply because at the time of the trial, he was Chief

1]

of Military Justice and had personally investigated and

prepared the case for trial. The lower courts completely

ignored the profound significance of a witness who was the

Chief of Military Justice, a Deputy Staff Judge Advocate, and

a former prosecutor with intensive involvement in the case.

He told the jury that he had personally determined there was a

factual basis for the charges and that the charges were

legitimate. In addition, the military atmosphere must be taken

into consideration. Members of a command rely daily, weekly,

or monthly on their Staff Judge Advocates to guide them.

Staff Judge Advocates are considered “experts” in their field;

command staff routinely rely on them regarding questions of

criminal law as well as administrative law. How could

court-members coming from such an atmosphere dismiss the

conclusion of guilt from the Chief of Criminal Law, especially

in the absence of an admonition from the judge on this issue?

Conclusion

There was clearly plain error that worked to the

substantial prejudice of petitioner in allowing Major Treanor

to testify on the legitimacy of the charges, and by implication

the guilt, of petitioner. Further, the tactics used by the

government in allowing the same prosecutor to prepare the

case, fully aware that he might be a witness, then withdraw at

the last hour to become a witness deserves the attention of the

court. The precedent set by such conduct could create a

“slippery slope” which could be difficult to reverse. The

intent of the ethics rules was clearly undercut by such tactics.

WHEREFORE, petitioner requests that this writ be

granted.

December 1996

Respectfully submitted,

ORMOND R. FODREA

Major, United States Air Force

Appellate Defense Division

Counsel of Record

MICHAEL L. MCINTYRE

Captain, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

Air Force Legal Services Agency

Appellate Defense Division

112 Luke Avenue, Suite 208

Bolling AFB, DC 20332-8000

(202) 767-1562

la

APPENDIX A

UNITED STATES, Appellee

Vv.

Terry H. COX, Technical Sergeant

U.S. Air Force, Appellant

No. 95-0873

Crim. App. No. 30712

United States Court of Appeals for

the Armed Forces

Argued May 7, 1996

Decided Sep. 27, 1996

Counsel

For Appellant: Vaughan E. Taylor (argued); Colonel Jay L.

Cohen and Captain Michael McIntyre (on brief).

For Appellee: Captain R. Scott Howard (argued); Colonel

Jeffery T. Infelise, Lieutenant Colonel Michael J. Breslin (on

brief).

Military Judge: Robert F. Penater

2a

Opinion of the Court

CRAWFORD, Judge:

In March 1993, contrary to his pleas, appellant was

convicted by a general court-martial at Ellsworth Air Force

Base, South Dakota, with officer members of attempted

sodomy of K; rape of K; sodomy of K; taking indecent

liberties with K; committing indecent acts on a child (4

specifications with K and 1 with C), in violation of Articles

80, 120, 125, and 134, Uniform Code of Military Justice, 10

USC §§ 880, 920, 925, and 934, respectively. The convening

authority approved the sentence of a dishonorable discharge,

14 years’ confinement, and reduction to the lowest enlisted

grade. The Air Force Court of Criminal Appeals affirmed the

findings and sentence. 42 MJ 647 (1995). We granted review

of the following issues:

WHETHER PLAIN ERROR OCCURRED WHEN

THE INSTALLATION’S CHIEF OF MILITARY

JUSTICE TESTIFIED FOR THE GOVERNMENT

THAT HE ASCERTAINED THAT THE CHARGES

AGAINST APPELLANT HAD A LEGITIMATE

BASIS, THUS DESTROYING THE

APPEARANCE AND ALL ACTUALITY OF

JUSTICE IN THE MILITARY SYSTEM.

WHETHER THE MILITARY JUDGE

COMMITTED PREJUDICIAL AND

CONSTITUTIONAL ERROR BY ADMITTING

STATEMENTS WHICH WERE NOT MADE FOR

MEDICAL PURPOSES AND WHICH DID NOT

CONTAIN ANY INDICIA OF RELIABILITY IN

VIOLATION OF THE SIXTH AMENDMENT AS

3a

WELL AS THE MILITARY RULES OF

EVIDENCE.

We hold that there was no plain error in admitting Major

Treanor’s testimony concerning the basis for charging, nor did

he err in admitting the victim’s statement to other witnesses.

FACTS—Issue |

Appellant and his wife were married nearly 10 years at

the time of trial. They had two children: K, born on

November 16, 1985; and C, born on December 16, 1988.

The allegations in this case arose on July 25, 1992, when

the neighbor’s child, A, was found by her mother playing

“gross” with K. A’s mother found the children hugging in bed.

When she questioned the girls, they said they were “playing

house” and “French kissing.” A’s mother questioned K about

how she learned about this. K said she would get in trouble

for telling. K then said she learned this from movies her mom

had thrown away. Shortly thereafter, A’s mother called Mrs.

Cox. When Mrs. Cox arrived at the neighbor’s house, they

questioned K further and learned that she had been sexually

abused by her father. Mrs. Cox did not report it immediately.

But after 5 days when she found out that she might be an

accessory for not reporting the abuse, she did report it.

Major Treanor was an assistant trial counsel in this case.

Prior to the Article 32, UCMJ, 10 USC § 832, investigation,

he went to Mrs. Cox’ house. When he arrived, he laid

eye-liner pencils on the coffee table. When C saw the eye-

liner pencils, she started crying, put her fingers in er mouth,

and doubled up in the fetal position. To assist, Mrs. Cox gave

C her bunny, “Bea,” because it might help. It did. C picked up

the eye—liner pencil and placed it between the bunny’s legs

and said that is what Daddy did.

4a

Prior to trial, the defense requested Major Treanor as a

defense witness. Mrs. Cox was questioned on direct

examination as to Major Treanor’s interview with C but not as

to the form and style of questioning. On cross—examination of

Mrs. Cox, the defense sought to establish that Major

Treanor’s interview contaminated C’s statement. This

contamination was raised in the testimony of a defense

witness, Dr. Frank. Dr. Frank was concerned about

fabrication, leading questions, and Major Treanor’s role,

including his giving a gift to the child.

Additionally, the defense cross-examined K concerning

how long she spent with Major Treanor discussing her Article

32 testimony. K also admitted talking with the OSI, her

therapist, and her mother about her testimony. She admitted

that reviewing the allegations helped her practice her

upcoming testimony.

The Government concedes that C’s statements to her

mother and Major Treanor were hearsay. Answer to Final

Brief at 16. But they argue an objection was waived; if not

waived, C’s statement would be admissible as an excited

utterance or under the residual hearsay rule. Answer at 17-18.

To rebut allegations of contaminating C by improper

questioning, Major Treanor was called in the prosecution’s

rebuttal.

With regard to C, he testified on direct examination:

I had to find out in my own mind if there was a

legitimate basis for going forward with a charge

involving this youngest Cox daughter against her

father, | needed to find out if it was there or not.

On redirect examination, Major Treanor testified:

We as prosecutors, we as attorneys, have an ethical

obligation not to bring fraudulent charges, bad faith

prosecutions, so on and so forth. In other words we

Sa

have to be certain in our own mind that there is a

legitimate factual basis to go forward with

allegations against an accused. To do otherwise is

not only a breach of faith as professionals, but is

something which will undermine the entire judicial

system, and that’s why we have an obligation to get

to the bottom of what the facts are.

There was no objection to the direct or redirect examination

set out above.

The defense argues that it is troublesome when the Chief

of Military Justice becomes a witness in the case. Final Brief

at 6. “[H]ad Major Treanor been the trial counsel, the Rules of

Professional Responsibility would not have allowed him to

say such things.” /d. at 8. Appellant continues to argue:

The conduct of an Air Force Judge Advocate during

the course of a trial is subject to strict guidelines by

the Air Force Rules of Professional Responsibility,

rules of evidence, and case law. The Rules of

Professional Responsibility prohibit an attorney in a

case from making extrajudicial public comments

regarding the guilt or innocence of a defendant

{Rule 3.6(b)(4)]. An attorney may not act as an

advocate in a case where he is likely to be a witness

[Rule 3.7]. An attorney may not “assert personal

knowledge of facts in issue except when testifying

as a witness, or state a personal opinion as to the

justness of a cause, .. . or the guilt or innocence of

an accused... .” [Rule 3.4(e)]. The alarming

tendency of attorneys to either inadvertently

become witnesses or to cross-examine witnesses

based on personal knowledge was the subject of

discussion at the Judicial Conference of the United

States Court of Appeals for the Armed Forces, held

in May 1995S. Professor * :winkelried discussed this

6a

phenomenon, noting that disciplinary authorities

should enforce this pronibition with “special vigor.”

Professor Edward ¢. Imwinkelried, Ethics, The

Judicial Conference, United States Court of Appeals

for the Armed Forces, 1995, Sec. 12.8.

Final Defense Brief at 8-9 (emphasis added). The defense

contends that his testimony “undercuts the clear intent of the

ethical requirement placed on advocates.” /d. at 11.

As to Issue II, the defense argues that trial defense

counsel’s failure to object to C’s statements to her mother,

Major Treanor and Mrs. Hunter, was plain error. /d. at 17.

DISCUSSION—Issue I

The defense is correct that Air Force Rule 3.6(a) of

Professicnai Conduct 3.6(b)(4), TJAG Policy Letter 26 (Oct.

92), which is. identical to the ABA Model Rule of Professional

Conduct, prohibits an attorney from making public comments

regarding a defendant’s guilt or innocence. Rule 3.6 is

designed to maintain the dignity of the profession and protect

against unwarranted pretrial publicity. See Nebraska Press

Association v. Stuart, 427 U.S. 539 (1976); Sheppard v.

Maxwell, 384 U.S. 333 (1966). But this is not the case of a

lawyer disseminating pretrial information to the public on

matters that may impact upon court members.

Additionally, an attorney at trial may not assert a

“personal opinion” or set forth a statement that they have

personal knowledge of the facts. See Air Force Rule 3.4(e),

which is identical to the ABA Rule. See, e.g., State v. Reed,

684 P.2d 699 (Wash. 1984); State v. Martin, 703 P.2d 309,

312-13 (Wash. App. 1985).

Mil.R.Evid. 103, Manual for Courts—Martial, United

States (1995 ed.), provides that error may not be based on a

ruling admitting evidence absent a timely objection. The

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plain—error doctrine applies an appellant fails to object, but

demonstrates that there was plain, clear, and obvious error

that affected the defendant’s substantial rights. United States

v. Curtis, 44 MJ 106, 140 (1996).

We hold that the defense waived any objection to Major

Treanor’s testimony. His testimony was not a plain or obvious

error that affected the substantial rights of appellant.

FACTS—lIssue Il

The defense argues that the judge erred by allowing

inadmissible hearsay from at least three witnesses: Mrs. Carla

Cox, the victim’s mother; Ms. Kathy Hunter, a former

schoolteacher and guidance counselor; and Major Treanor, the

Chief of Military Justice.

At the Cox’s home, when Major Treanor was trying to

ascertain what the victim would say about the eyeliner

pencils, Mrs. Cox provided a stuffed bunny to assist C, the

victim, in describing what happened. Mrs. Cox testified that C

put the pencil between the bunny’s legs and said this is what

Daddy did. Major Treanor testified, in rebuttal, about the same

incident, repeating the actions of C. There was no objection to

any of these statements.

Appellant’s wife testified that both K and C had been to

the hospital many times and each time they expected to

receive treatment to feel better. Mrs. Cox testified that she

hired Ms. Hunter based on the suggestion of a friend. Ms.

Hunter testified that she was “there to help them” and they

could talk about the things that were happening to them to

feel better about themselves. She seeks to help children deal

with their problems and their fears. She would introduce

herself by her first name and then say she was there to help

them. However, she did indicate that her small office had toys

on the desk. She wore normal business suits and not a

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doctor’s coat, and spent time playing with the children on the

floor. She described her office as a “therapeutic office that has

toys there for kids to play with and has a big easel board to

draw on.” Mrs. Cox explained to her daughters that they were

going to see Ms. Hunter because she could help them.

The Court of Criminal Appeals addressed Ms. Hunter’s

testimony as follows:

The military judge found that the children were

taken by their mother to a “therapist or counselor”

who “was going to help them with whatever

problems they had.” He also found that, based on

their “many prior experiences with medical

personnel . . . they each did have some expectation

of being helped by her, either to discuss their

problems or at least to make them feel better about

themselves.”

42 MJ at 651. The court below concluded:

We agree that Ms. Hunter’s interviews of K and C

were medically related. The appellant makes much of

the fact that Ms. Hunter was in an office building,

and it had “toys... and... a big easel board to draw

on.” The fact that her office deliberately displayed

none of the attributes of a hospital is no more

dispositive of the first prong of the test then the fact

Ms. Hunter wore indistinctive, comfortable clothing.

Rather, our focus must be on whether the statements

were made for “medical” benefit.

* * *

Ms. Hunter was a trained counselor and therapist,

the two girls were taken to her for help in

overcoming the devastating effects of sexual abuse,

and, in our view, that is sufficient “medical” help to

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meet the first prong of the test for Mil.R.Evid.

803(4).

42 MJ at 651. Regarding the second prong, the court below

Stated:

The second prong focuses on the expectations of the

children, but it “need not be based on the testimony

of the child.” Quigley, 40 MJ at 66. Ms. Hunter

testified she told K and C “this is your place” and

She “was there to help.” Taken alone, these

Statements do not show that K or C had any

expectation of receiving medical benefit from

talking with Ms. Hunter. Mrs. Cox testified,

however, that she explained to the girls why they

were going to see Ms. Hunter. She said she told K

and C “we are going to go talk to somebody who

could help us with what had happened to us . . . that

I didn’t have the knowledge to be able to help her,

to make her better, and that we needed help, and

this counselor specialized in helping children who

had to go through things like this, and that she

would be better at it and she would be able to help

us.” The military judge’s findings are fully

supported by the evidence, and we adopt them.

Based on the evidence, we find no abuse of

discretion in admitting Ms. Hunter’s testimony of

hearsay statements. Quigley, 40 MJ at 66.

42 MJ at 651-52.

Ms. Hunter testified that while counseling C, she said

that her father “spanked her bottom” and then indicated that

She had been spanked by her father on the buttocks and

vagina with her pants off. These statements were admitted

under the medical treatment exception to the hea:say rule over

the objection of the defense counsel.

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DISCUSSION—Issue II

As to the statements to Mrs. Cox and Major Treanor, the

Government argues that there was waiver and no plain error.

In the alternative, they argue that the statements were

admissible under Mil.R.Evid. 803(2) or 803(24). Both Mrs.

Cox and Major Treanor testified that C was upset when she

saw the eyeliner pencils. In Major Treanor’s words, it was as

if C had seen a vampire. The Government argues if these

statements are not an excited utterance they are so close in

terms of reliability that they should be admitted under the

residual hearsay exception.

As we indicated in United States v. Grant, 42 MJ 340,

343 (1995), while not qualifying as an excited utterance, the

circumstances surrounding the statement may indicate

trustworthiness. The emotional reaction of the child and

spontaneity of her statements and actions strongly suggests

their trustworthiness. We need not address alternative grounds

in this case. We hold that the failure to object to Mrs. Cox’s

and Major Treanor’s testimony was not plain error. United

States v. Curtis, 44 MJ 106, 140 (1996).

As to Ms. Hunter’s statements, there was an Article

39(a), UCMJ, 10 USC § 839(a) session, where admissibility

of her testimony was litigated. Mrs. Cox testified that it was

her decision to have therapy for the child. There was no

government connection with this therapy. Based on this

testumony, the judge ruled that Ms. Hunter’s testimony “about

any Statements made to her by the [children] that were

reasonably pertinent to her diagnosis of those children’s

problems and her treatment thereof” were admissible.

We hold that the judge’s decision was not an abuse of

discretion. The Government established that the children had

an expectation of treatment and that the statements were made

for the purposes of treatment. United States v. Siroky, No.

95-5004, _ MJ _ (Sept. 5, 1996)(and cases cited therein).

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Additionally, as mentioned in Siroky, Ms. Hunter mentioned

that they needed to tell what happened to feel better about

themselves. Thus, the statement to Ms. Hunter was admissible

as segmented per Williamson v. United States, 114 S. Ct. 2431

(1994). Thus, Issue II is without merit.

The decision of the United States Air Force Court of

Criminal Appeals is affirmed.

Chief Judge COX, Judge SULLIVAN, and Senior Judge

EVERETT concur.

GIERKE, Judge (concurring in part and in the result):

I agree with the majority that admission of Major

Treanor’s testimony was not plain error. In my view, Major

Treanor’s testimony should be considered in terms of

relevance, not the rules of professional responsibility. Maj

Treanor appeared before the court-martial as a witness, not as

an advocate. As a witness, he came under the exception to the

general prohibition against testimony by attorneys. The

exception is cited in the majority opinion and conceded in the

defense brief. MJ at (7).

The objectionable portion of Maj Treanor’s testimony

was that there was a “legitimate basis” for the charges. His

testimony was offered to rebut a defense claim that Maj

Treanor had contaminated the victim’s testimony by a

Suggestive pretrial interview. In my view, Maj Treanor’s

belief that there was a “legitimate basis” for the charges is

irrelevant to an allegation that he contaminated the victim’s

testimony. See Hawaii v. Baron, 905 P.2d 613, 622 (Haw.

1995) (trial court abused its discretion by not precluding the

testimony of the screening prosecutor about alleged child

abuse victim’s credibility).

I am satisfied, however, that admission of Maj Treanor’s

testimony was not plain error. His vouching for the witness

was not emphasized in argument. To the contrary, trial

counsel emphasized the absence of suggestive questioning.

When a court member asked if there was any available

testimony to help them decide who was telling the truth, the

military judge instructed the members as follows:

Members, the credibility of any witness, including

Sergeant Cox [appellant], is up to the members.

Military rules don’t allow us to bring on witnesses

who will give their opinions as to whether any

particular person is telling the truth in this case, so

that’s going to be up to the members.

The focus of the case was on the demeanor and

credibility of the witnesses and the circumstances supporting

their credibility. No one suggested that the members should

convict appellant because Major Treanor thought appellant

was guilty. Accordingly, I am satisfied that any suggestion by

Major Treanor that he believed the witness was not plain

error.

Regarding Issue II, I believe that the majority mis-

characterizes the defense argument. _ MJ at (7), (12). The de-

fense does not argue that defense counsel committed plain

error by failure to object; they argue that the military judge

committed plain error by admitting the testimony. I agree with

the majority that there is no plain error.

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APPENDIX B

UNITED STATES

v.

Technical Sergeant Terry H. COX,

FR424-82~2509, United States

Air Force.

ACM 30712.

U.S. Air Force Court of Criminal Appeals.

Sentence Adjudged 23 March 1993.

Decided 9 May 1995.

Accused was convicted by general court-martial, Robert

F. Penater, J., of rape, sodomy, and indecent acts or liberties

with child. The United States Air Force Court of Criminal

Appeals, Heimburg, Senior Judge, held that: (1) military

judge did not abuse his discretion in admitting therapist’s

testimony of hearsay statements under medical exception; (2)

admission of mother’s hearsay testimony without objection

that was part of defense Strategy to show contamination of

children’s testimony was not plain error; (3) erroneous

admission of remarks by base chief of military justice that he

had ascertained that charges against accused “had a legitimate

basis” was not plain error: (4) rape and sodomy charges were

not multiplicious with indecent acts or liberties with child

charges; and (5) military judge did not abuse his discretion in

denying accused’s request to question member on whether her

crying indicated that she had “made up her mind” about guilt

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or whether testimony had triggered memory of sexual abuse

that she had not disclosed on initial voir dire.

Affirmed.

1. Military Justice Om 1091

Children’s statements to therapist were made for purpose

of medical diagnosis and treatment to be admissible under

medical exception to hearsay rule, though therapist’s office

had toys and deliberately displayed none of attributes of

hospital, where she was trained counselor, and children were

taken to her for help in overcoming effects of sexual abuse.

Military Rules of Evid., Rule 803(4).

2. Military Justice O= 1091

Proponent of statements sought to be admitted under

medical exception to hearsay rule must show both that

statement was made for purpose of medical diagnosis and

treatment and that declarant made statement with some

expectation of receiving “medical” benefit. Military Rules of

Evid., Rule 803(4).

3. Military Justice Ow 1091

Testimony of children’s mother that she explained that

they were going to see therapist because mother did not have

knowledge to be able to help them, children needed help,

and therapist specialized in helping children who had to go

through things like they did was sufficient to show that

children had expectation of receiving medical benefit from

talking with therapist to support admission of testimony from

therapist under medical exception to hearsay rule. Military

Rules of Evid., Rule 803(4).

lSa

4. Military Justice © 1415

Admission of mother’s testimony on child’s reaction to

seeing eyeliner pencils that had allegedly been inserted in her

vagina and her actions with her toy bunny in putting pencil

between bunny’s legs and saying that is what her daddy did,

without defense objection, was part of defense Strategy, so as

not to be plain error; hearsay testimony of mother was part of

defense strategy to show contamination of children’s

testimony that fit into framework of defense expert’s

testimony about suggestive questioning.

5. Military Justice Om 1415

Hearsay is inadmissible, but may be considered by court

if admitted without objection, unless there is plain error.

6. Military Justice Om 1414.1

“Plain error” is error that is clear or obvious and

adversely affects substantial rights. Military Rules of Evid.,

Rule 103(d).

See publication Words and Phrases for other

judicial constructions and definitions.

7. Military Justice Om 1414.1

To be plain error, error must not only be obvious and

substantial, it must also have had unfair prejudicial impact on

jury’s deliberations.

8. Military Justice Om 1415

If there is defense strategy to allow evidence, and

admission does not affect substantial right of accused, then

there is no plain error.

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9. Military Justice Ose. 1415

Erroneous admission of remarks of base chief of military

justice in ascertaining that sexual abuse charges against

accused had legitimate basis was not plain error, where

remarks were limited by their context to preferral of charges,

not ultimate decision on guilt, and his comments apparently

had minimal impact on members, since they proceeded to

acquit accused of one of specifications of indecent acts on

child.

10. Military Justice Om 959

Charge of indecent acts or liberties with child was not

multiplicious with rape and sodomy charges.

11. Military Justice O- 890

Military judge did not abuse his discretion in denying

accused’s request to question member on whether her crying

during child’s testimony about sexual abuse indicated that she

had already “made up her mind” about guilt, and whether

testimony had triggered previously repressed memory of

sexual abuse that she had not disclosed on initial voir dire,

where neither military judge nor counsel had seen member

cry, and all members had assured court they would wait until

they heard all evidence before deciding case.

12. Military Justice O- 563, 569, 575

Testimony of accused’s daughter on her sexual abuse that

was corroborated by physical evidence she showed

investigators at her home was sufficient to support findings of

guilty.

Appellate Counsel for Appellant: Mr. Vaughan E. Taylor,

Esq. (argued), Colonel Jay L. Cohen, Lieutenant Colonel

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Frank J. Spinner, Captain Joel R. Reifman, and Captain

Michael L. Mcintyre.

Appellate Counsel for the United States: Captain R.

Scott Howard (argued), Colonel Jeffery T. Infelise, Colonel

Thomas E. Schlegel, Major Jules D. Silberberg, and Major

John H. Kongable.

Before HEIMBURG, RAICHLE, and BECKER,

Appellate Military Judges.

OPINION OF THE COURT

HEIMBURG, Senior Judge.

A general court-martial, sitting with members, convicted

Technical Sergeant Cox of rape, two specifications of sodomy,

and five specifications of indecent acts or liberties with a

child, in violation of Articles 120, 125, and 134, UCMJ, 10

U.S.C. §§ 920, 925, and 934 (1988). His approved sentence is

a dishonorable discharge, confinement for 14 years, and

reduction to E~1. Among the six errors he has assigned are

assertions that the military judge erred by permitting a great

deal of unreliable hearsay testimony, not made for purposes of

medical diagnosis or treatment. We find no error, and affirm.

I. BACKGROUND

The appellant and his wife married in 1983, and their

two daughters (“K” and “C”) were born in 1985 and 1988.

The rape, sodomies, and all but one of the indecent acts or

liberties specifications involved K, while C was the victim of

one specification of indecent acts with a child.

The allegations came to light when K and C were

playing at a friend’s house on 25 July 1992. The friend’s

mother, Mrs. P, came upon a closed bedroom door and opened

it, startling her daughter and K, who were grappling around

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on the bed. Questioning the girls separately, Mrs. P found they

had been “French kissing,” as K had seen people do in some

movies her mother “threw away.” K, who was then 6 years

old, was initially “frightened” at being questioned, Mrs. P

said, but then became very upset, saying “her daddy told her

he would beat her with the belt—her mother would beat her

with the belt if she told her mother, that she would be mad.”

Mrs. P consoled K, and let the girls go outside to play. Twice

thereafter, K returned into the house, crying, to ask Mrs. P not

to tell her mommy. When Mrs. Cox called, Mrs. P reported

what she saw and heard. Confronted about the incident, K

said she learned her “gross” behavior from movies her daddy

made her watch. When they watched the movies, she said, her

daddy would “try to do what was in the movies to me.” K

related sodomy, intercourse, and indecent acts her daddy

performed. Mrs. Cox testified she at first did not believe K’s

allegations, but K was adamant they were true, even

confronting the appellant that afternoon and asking him why

he was lying by denying them. After 5 days, Mrs. Cox

reported the allegations, and K was questioned by

investigators first on 31 July 1992.

K testified that she and her friend were caught playing

“gross,” and that she learned such behavior from some movies

her dad showed her. In those movies, “the boy was putting his

penis inside the girl’s vagina” and “was licking the girl’s

vagina and the girl was licking the boy’s penis.” She watched

the movies lots of times when her mommy was “either

shopping or at work or somewhere” and her little sister, C,

was “[e]ither taking a nap or playing down in her room.”

While they watched the movies, her dad would “try to do

what was in the movies to me.” He put his penis into her

vagina, but it only went in “a little.” (Showed about % inch

with fingers.) When he did, it hurt “[a} lot.” When she told

him to stop, he would “just go on” and say “just a few more

19a

minutes.” Sometimes he tried to put his penis in her “bottom”

(pointing and saying “{iJn the back.”) “That hurt.” He put

“jelly stuff” on to make his penis go inside. It was “slick” and

“clear” and came in a container that was “like round sort of”

and had a top “[y]ou could pop” off. She showed the Air

Force Office of Special Investigations (AFOSI) investigator

where the container was kept, down in her mom and dad’s

bathroom. She identified Prosecution Exhibit 1 as the

container: it is a jar of petroleum jelly.

K said her dad put “[mJakeup eyeliner pencil caps” in

her vagina. They were kept in her mom and dad’s bathroom

also, “in her makeup basket.” K showed how her dad would

take the cap off and “put a little bit of jelly on it to make it go

in.” He put all except the last % to % inch of the caps in. He

also put his “pinky and his pointer finger” inside her vagina.

Her dad also “wanted me to lick his penis.” She did—“I was

little back then.” Her dad would put some “chocolate syrup,

maybe a ring lollipop, you know, that has that hoop on it” on

his penis to get her to do it. “It made me gag.” He also “would

lick my vagina” a lot. Out of her dad’s penis would come this

“white gooey stuff.” She would have no clothes on, because

her dad always took them off and they were on the floor. He

would lie her on a towel on the bed. He said “if anything got

on the bed it wouldn't be because the towel would be there.”

When the “white gooey stuff” came out of her dad’s penis, it

went “[o]into my stomach.” He would then clean it up with a

wash cloth, she would put her clothes back on and go and

play. Where did these things happen? “It would either be in

the bathroom upstairs, the bathroom downstairs which is my

mom and dad’s bathroom, or in my mom and dad’s room, or

upstairs on the couch.” They watched the movies “[e]ither on

the bed or the couch” downstairs. After he was done, he

would put medicine on her—she identified a tube of Terazol 7

vaginal cream as what he used—and tell her it was so “if |

20a

went potty it wouldn't hurt.” (Other witnesses identified

Terazol 7 as a cream used to combat yeast infection in

women.) K said she didn’t tell anyone because “my dad told

me if | told my mom I would get a spanking with the belt.”

She testified that, as a result of the threat, “I didn’t tell until I

got caught with [her friend].”

C did not testify at trial, and the primary testimony

concerning this specification came from Mrs. Cox. When K’s

allegations came up, Mrs. Cox and the investigators

questioned C, but C denied that her dad touched her in any

bad way. Nevertheless, questions about possible sexual abuse

lingered, partly because of C’s behavior. In October 1992, a

pediatrician examined C and said she was “suspicious” of

sexual abuse because of her observations of the child’s

hymen. While she admitted nothing in her observations was

necessarily indicative of sexual abuse, she relayed her

suspicions to Mrs. Cox, who then took C to the therapist who

had been seeing her daughter K.

That therapist was Kathy Hunter, a former school teacher

and guidance counselor. Ms. Hunter had a master’s degree in

counseling and guidance and several years of experience in

working with children on various behavioral problems,

including “school problems, problems within the family

setting, [and] sexual abuse issues.” In addition to practical

experience, Ms. Hunter had attended seminars, workshops,

and had done a considerable amount of reading on the subject

of child sexual abuse. She was qualified, without objection, as

an expert in “treatment of sexually abused children.”

Ms. Hunter testified C would come up to her and say,

“We're just not going to talk about the truth.” When Ms.

Hunter pressed her about what she meant, C would say, “Well,

I don’t want to talk about it. It makes me sad.” On one

occasion, C told Ms. Hunter “her daddy had asked her to take

off her pants and then he had spanked her bottom.” Asked

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what she meant by “spanked her bottom,” C pointed to her

vaginal area and to her buttocks area and “said, ‘My daddy

spanked me on my bottom, and then he went and washed his

hands, and then he told me to get my nightgown on.’” C was

3 years old at that time.

Mrs. Cox testified that, Shortly before the Article 32,

UCMSJ, 10 U.S.C. § 832, hearing in this case, Major T, the

base chief of military justice, came to her house to talk with C

one more time to determine what, if any, charge her testimony

would support. He brought the eyeliner pencils K had

previously identified that her dad used. When C saw the

pencils, she started crying and withdrew. putting her fingers in

her mouth. She refused to look at the pencils. Mrs. Cox

calmed C and asked her if her bunny “Bea” could “help her

talk about it.” C agreed, picked up “Bea,” picked out one

pencil, and put it between the buniny’s legs, saying that’s what

her daddy did. There was no objection to this testimony at

trial.

The appellant denied all charges. He testified he never

pulled down either girl’s pants to spank her, but did spank C

on her bare bottom when she wouldn’t want to wear the

nightgown that was laid out for her. He said one time, when C

was about 2 years old, he was bathing with both girls when K

reached out and grabbed him “in the groin area.” He “pulled

back from her and told her that it wasn’t very nice.” (Mrs.

Cox testified this incident occurred much earlier, when K was

2.) He never allowed K to view his pornographic videotapes,

but once she saw them on a shelf in his wardrobe and asked

him about them. He testified he got rid of the videotapes

“about a year” before trial. He denied ever sexually molesting

either of his daughters. He said neither he nor his wife, to his

knowledge, explained Terazol 7 to K, and he had no idea how

She came up with her testimony about it. He claimed he used

the petroleum jelly only to clean his guns and as lip balm.

22a

Dr. Frank appeared as a defense expert in “investigative

evaluations and in child sexual abuse evaluation and treatment

as well as the field of human memory.” He related the theories

of memory and testified that “memory” can be implanted by

the conditions of the interview. He told of the dangers of

“contaminating” children’s memories, especially when

questioners are authority figures, such as police or OSI agents.

He mentioned the close relationship K had with Major T, and

how this relationship could have contaminated her memory.

Although he said a child’s first story is the most “pure,”

children may not tell everything the first time they talk

because they are afraid of the reaction. He said that therapists,

himself included, do not like to challenge stories, because it

conflicts with their role as therapists. Nevertheless, unless an

alleged victim’s story is challenged, “it is a problem” because

a therapist’s continued acceptance of the story can encourage

the teller to develop a false memory of abuse. Dr. Frank

reviewed records, but did not speak with any of the victims.

He conceded he learned that Mrs. Cox initially challenged K

about her story for 5 days before Mrs. Cox reported the abuse,

and that K revealed almost all of the abuse before the first

time she met Major T.

Il. THE HEARSAY

Although the appellant asserts the findings are suspect

because the evidence is riddled with unsupported hearsay, his

attack can be reduced to two significant areas: hearsay

admitted over defense objection under the “medical

exception” and unobjected—to hearsay about C’s statements.

a. The Medical Exception

[1,2] Mil.R.Evid. 803(4) permits the admission of

hearsay statements “made for purposes of medical diagnosis

or treatment and describing medical history, or past or present

23a

Symptoms, pain, or sensations, or the inception or general

character of the cause or external source thereof insofar as

reasonably pertinent to diagnosis or treatment.” The

Proponent of such statements must show both, that the

statement was made for the purpose of medical diagnosis and

treatment, and that the declarant made the statement with

some expectation of receiving a “medical” benefit. United

States v. Faciane, 40 M.J. 399, 403 (C.M.A.1994); United

States v. Armstrong, 36 M.J. 31 1, 313 (C.M.A.1993); United

States v. Nelson, 25 M.J. 110, 112 (C.M.A.1987), cert. denied.

484 U.S. 1061, 108 S.Ct. 1016, 98 L.Ed.2d 982 (1988). The

appellant attacks both prongs of the foundation in his attack

on the testimony from Ms. Hunter. He asserts Ms. Hunter did

not provide any “medical treatment” as that term is used in

Mil.R.Evid. 803(4), and that neither K nor C spoke with Ms.

Hunter having any expectation of receiving any medical

benefit.

The military judge found that the children were taken by

their mother to a “a therapist or a counselor” who “was going

to help them with whatever problems they had.” He also

found that, based on their “many prior experiences with

medical personnel . . . they each did have some expectation of

being helped by her, either to discuss their problems or at

least to make them feel better about themselves.” We will

defer to the military judge’s findings of fact unless clearly

erroneous, and review his ruling admitting the hearsay for

abuse of discretion. United States v. Quigley, 40 M.J. 64, 66

(C.M.A.1994); United States v. Ureta, 41 M.J. 571, 575,

(A.F.Ct.Crim.App. 1994).

We agree that Ms. Hunter’s interviews of K and C were

medically—related. The appellant makes much of the fact that

Ms. Hunter’s office was in an office building, and it had “toys

-.. and... a big easel board to draw on.” The fact that her

office deliberately displayed none of the attributes of a

24a

hospital is no more dispositive of the first prong of the test

than the fact that Ms. Hunter wore indistinctive, comfortable

clothing. Rather, our focus must be on whether the statements

were made for “medical” benefit. Statements may be given to

a social worker or other non—physician health professional for

such a purpose and be admissible under Mil.R.Evid. 803(4).

Faciane, 40 M.J. at 403; United States v. Williamson, 26 M.J.

115, 118 (C.M.A.1988). Ms. Hunter was a trained counselor

and therapist, the two girls were taken to her for help in

overcoming the devastating effects of sexual abuse, and, in

our view, that is sufficient “medical” help to meet the first

prong of the test for Mil.R.Evid. 803(4).

[3] The second prong focuses on the expectations of the

children, but it “need not be based on the testimony of the

child.” Quigley, 40 M.J. at 66. Ms. Hunter testified she told K

and C “this is your place” and she “was there to help.” Taken

alone, these statements do not show that K or C had any

expectation of receiving medical benefit from talking with

Ms. Hunter. Mrs. Cox testified, however, that she explained to

the girls why they were going to see Ms. Hunter. She said she

told K and C “we were going to go talk to somebody who

could help us with what had happened to us . . . that I didn’t

have the knowledge to be able to help her, to make her better,

and that we needed help, and this counselor specialized in

helping childrén who had had to go through things like this,

and that she would be better at it and she would be able to

help us.”

The military judge’s findings are fully supported by the

evidence, and we adopt them. Based on the evidence, we find

no abuse of discretion in admitting Ms. Hunter’s testimony of

hearsay statements. Quigley, 40 M.J. at 66.

b. “Plain Error” Hearsay

[4] As described above, the crucial hearsay testimony

25a

concerning the abuse of C was supplied, not by Ms.

Hunter, but by Mrs. Cox. Ms. Hunter’s testimony above

C’s comments and reactions support the general

conclusion that C was sexually abused, but do not

unambiguously support guilt as charged. One many

conclude the words “spanked her bottom” mean that C

was punished by her dad, but it is a more difficult leap of

logic to take them to describe sexual abuse. On the other

hand, Mrs. Cox’s testimony about C’s reaction to seeing

the eyeliner pencils and C’s actions with “Bea” the bunny

clearly supported a finding of guilty. Appellant urges us

to find that admission of this testimony, without defense

objection, was plain error.

[5-7] Hearsay is inadmissible, but may be

considered by the court if admitted without objection,

unless there is plain error. United States v. Toro, 37 M.J.

313, 316 (C.M.A.1993), cert. denied, — U.S. —, 114

S.Ct. 919, 127 L.Ed.2d 213 (1994); Mil.R.Evid. 103.

Plain error is error that is clear or obvious and adversely

affects substantial rights. United States v. Olano, — U.S.

—_, , 113 S.Ct. 1770, 1776-77, 123 L.Ed.2d 508

(1993); United States v. Dudding, 37 M.J. 429, 430

(C.M.A.1993); Mil.R.Evid. 103(d). In order to constitute

plain error, the error must not only be both obvious and

substantial, it must also have “had an unfair prejudicial

impact on the jury’s deliberations.” United States v.

Fisher, 21 M.J. 327, 328-29 (C.M.A.1986) (citing United

States v. Young, 470 U.S. 1, 16-17 n. 14, 105 S.Ct. 1038,

1047 n. 14, 84 L.Ed.2d 1 (1985)).

[8] The question of plain error often turns on

defense trial strategy. If there is a defense strategy to

allow the evidence, and admission does not affect a

Substantial right of the appellant, then there is no plain

error. Toro, 37 M.J. at 317. At the outset of this case the

26a

trial defense counsel made a well-prepared, but unsuccessful,

motion in limine to exclude Ms. Hunter’s testimony. Later,

however, he allowed Mrs. Cox to testify to blatant hearsay

when she told how C placed the pencil in the bunny’s crotch

and said “that’s what daddy did.” The military judge did not

question trial defense counsel on his reasons for allowing

Mrs. Cox’s hearsay testimony, so we are faced with the task

of deciding whether its admission was part of a defense

strategy or plain error.

We believe the record supplies ample evidence of a trial

strategy which included allowing Mrs. Cox’s hearsay

testimony. Contrary to appellant’s position on appeal, it was

K's testimony, not Mrs. Cox’s testimony about C’s words,

which was devastating to the defense. K’s testimony, given in

person and not through hearsay, was credible on its face and

corroborated in significant details by the evidence found in

the home. Mrs. Cox’s testimony, on the other hand, played a

minor role, since it affected only one specification of Charge

Ill. The task for the defense was to undermine the credibility

of K’s testimony of Dr. Frank. Dr. Frank testified that a

questioner can easily and unknowingly influence a child’s

memory of events, even creating a “memory” of events which

did not occur. The events in the home, with Major T present,

supplied a good example for the defense to use in showing

how interviewers may have so influenced the girls’ testimony

that they created false memories of sexual abuse by their

father. Mrs. Cox testified that Major T showed C the eyeliner

pencils. The defense counsel tried, on cross—examination, to

show that he went even farther and suggested to C that she

pick one of them. Even though Mrs. Cox (and later Major T)

denied that such a suggestion was made, this line of testimony

fit well into the framework of Dr. Frank’s testimony about

suggestive questioning, and supplied the defense with

ammunition for closing argument.

27a

We conclude that not objecting to the hearsay testimony

of Mrs. Cox was clearly part of a defense Strategy to show

contamination of the Cox girls’ testimony, and that its

admission did not affect a substantial right of the appellant.

We conclude that its admission was, therefore, not plain error.

Ill. TESTIMONY OF THE CHIEF OF

MILITARY JUSTICE

[9] Appellant asserts the military judge committed plain

error in permitting the base chief of military justice, Major T,

to testify that he had ascertained that the charges against

appellant “had a legitimate basis”. Major T was a rebuttal

witness, called to testify that neither he nor Mrs. Cox

suggested to C her allegation that her daddy used eyeliner

pencil to commit indecent acts. Trial defense counsel’s

cross~examination challenged this assertion. He began by

questioning Major T’s reason for being in the home that

evening, conducting an investigation, when C had, until then.

denied any sexual abuse by her father. In response, Major T

said:

[B]ecause the previous day there was, for want of a

better term, a breakthrough with respect to [a third

girl] having identified a particular cosmetic eyeliner

pencil. Time was in essence running short. The

charges against the accused were scheduled to be

preferred on Monday, the . . . 9th of November of

92. Charges had to be drafted and typed up the

previous workday, which would have been Friday,

the 6th of November. That left us with Thursday .. .

as a last possible opportunity to find out if indeed

there was a legitimate basis in fact to articulate a

charge involving [C] against her father. Certainly I,

as an attorney, as the Chief of Military Justice, have

an ethical obligation to ascertain if there is a

28a

legitimate basis or not in fact to go forward with

charges in a prosecutorial mode against someone.

Trial defense counsel continued to press the point that Major

T was not a trained investigator and, thus, was not aware of

proper questioning techniques to avoid contaminating a

child’s responses. During this interchange, Major T repeated

his reasoning for going into the home that evening to question

C, and denied suggesting any particular response to her.

Major T referred to his “ethical obligation” to be sure that

there was a factual basis for charges, both for the protection of

the accused and for the integrity of the military justice system.

Appellant does not deny that Major T’s statements were

correct, but asserts that the military judge should have, sua

sponte, kept these comments from the members or, at the least

instructed the members to disregard them as expressions of

personal belief in the appellant's guilt.

Again, we face a question of whether plain error crept

into the trial. Unlike the hearsay issue, above, we can discern

no tactical basis for trial defense counsel to permit the

erroneous injection of opinion about evidence in front of the

members. Also, once it came before the members, we fail to

see a tactical reason for trial defense counsel not to request

the military judge to instruct the members to disregard Major

T’s comments as an improper expression of personal opinion.

That said, we are not convinced the erroneous admission of

this testimony amounted to plain error. We are persuaded for

two reasons. First, when examined in context, the error isn’t

as obvious as it now appears. Major T’s remarks were limited

by their context to the preferral of charges, not the ultimate

decision on guilt. It seems self-evident that someone thought

there was a basis for trial, or the members wouldn’t be there,

and that’s all Major T testified to. Second, Major T’s

comments apparently had minimal impact on the members.

Not only did none of the trial participants notice the problem,

29a

including the military judge, but the members proceeded to

acquit the appellant of one of the specifications of indecent

acts on a child. We find the erroneous admission of these

remarks was not plain error.

OTHER ISSUES

The appellant has raised four other issues. We will

discuss some of them briefly.

[10] Appellant asserts the military judge erred in denying

a defense motion to find specification 7, Charge III,

multiplicious with Charges I and II, and specifications 2, 5,

and 6 of Charge III. We disagree. The military judge found

that rape and sodomy were separate offenses from indecent

acts or liberties with a child. This ruling was correct. United

States v. Teters, 37 M.J. 370 (C.M.A.1993), cert. denied, —

U.S. —, 114 S.Ct. 919, 127 L.Ed.2d 213 (1994). See United

States v. Neblock, 40 M.J. 747, 749-50 (A.F.C.M.R.1994). He

also found that the underlying facts for the various

specifications of indecent acts with a child were not identical,

thus eliminating any factual basis for multiplicity among

them. See Neblock, 40 M.J. at 749. This finding was not

clearly erroneous. United States v. Burris, 21 M.J. 140, 144

(C.M.A.1985), United States v. Middleton, 10 M.J. 123, 133

(C.M.A.1981). The military judge correctly ruled

specification 7, Charge III, not multiplicious with any other

specification.

[11] After the close of the prosecution’s case, the court

ajourned for one day to permit counsel to interview

out-of-town witnesses. On the third day, trial defense counsel

asked the military judge to permit individual voir dire of

Lieutenant (Lt) C, the junior court member. Defense counsel

asserted Lt C “had been noticed to have been visibly upset

and crying during a portion of the testimony” from K.

30a

Defense counsel asked to question the member as to whether

the crying indicated she had already “made up her mind”

about guilt, and whether the testimony had, somehow,

“triggered” a previously—repressed memory of sexual abuse

she had not disclosed on initial voir dire. Neither the military

judge nor counsel had seen the member cry, and there was no

evidence she was demonstrative in her emotion, such as by

sobbing. The military judge denied the motion, ruling that

counsels’ assertions were an insufficient basis to bring a

member back for such questions.

The military judge’s ruling will be tested for abuse of

discretion. United States v. Hamilton, 41 M.J. 22

(C.M.A.1994), cert. denied, — U.S. —, 115 S.Ct. 738, 130

L.Ed.2d 640 (1995). The military judge received a negative

response from all the members to the question, “have you, any

member of your family, any relative, or anyone close to you

been a victim of either rape or sexual misconduct?” All

members also assured the court they would wait until they

heard all the evidence before deciding the case. A show of

emotion by a court member, such as tears in the eyes, is not

evidence that the member lied, or that the member cannot or

will not maintain an open mind during trial. Much less is a

show of emotion, by itself, evidence of some sort of

“repressed memory” or sexual abuse. The military judge did

not abuse his discretion in denying this request.

[12] In separate assignments of error, the appellant

asserts that the evidence is factually insufficient to support

findings of guilty, and that the sentence is too severe. We

disagree with both assertions. As we previously noted, the

testimony of K was clear, consistent, and credible. Moreover,

it was corroborated significantly by the physical evidence she

showed investigators at her home. Having carefully

considered all the evidence, we are convinced of the

appellant’s guilt. Article 66(c), UCMJ, 10 U.S.C. § 866(c)

3la

(1988). Moreover, we are convinced the appellant received

the punishment he deserves, neither more nor less. United

States v. Healy, 26 M.J. 394, 396—96 (C.M.A.1988).

We conclude the findings and the sentence are correct in

law and fact, the sentence is appropriate, and no error

prejudicial to the substantial rights of the appellant was

committed. Accordingly, the findings of guilty and the

sentence are

AFFIRMED.

Senior Judge RAICHLE and Judge BECKER concur.