Petition for Writ of Certiorari — Coleman v. United States

Supreme Court, U.g

‘sic

94106 7 DEC i & i994

‘No. :

QEFIOE OF THE CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1995

CARLOS COLEMAN, PETITIONER

-

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

JAY LINDSEY COHEN

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel of Record

Eric N. EKLUND

Captain, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

AIR FORCE LEGAL SERVICES AGENCY

Appellate Defense Division

172 Luke Avenue, Suite 208

Bolling AFB, DC 20332-5113

December 1994

<7 ae ne es

QUESTION PRESENTED

Whether the military judge erred to the substantial pre-

judice of the appellant by improperly restricting the

defense-cross examination of the government’s expert

witness.

TABLE OF CONTENTS

Page

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ST ATC e GOS COU CPO 0 sn eco cntesedivecvne. 2

REASON FOR GRANTING THE WRIT: THE IM-

PROPER LIMITATION OF THE DEFENSE

CO POSIT onc cc catendakescdanese 3

COIR RAEN 6 5 60s koe ns évnpecccuvsiuiebeeneeeen 6

APPENDIX A (Opinion of the U.S. Court of Appeals

Fe Ge FOE POND 6 6 cv oc i veeasansudeuneaessa la

APPENDIX B_ (Opinion of the Air Force Court of

CUS FIO oc ook dcccctccdcoeasvevacucaain lla

TABLE OF AUTHORITIES

SUPREME COURT CASES: Page

Davis v. Alaska, 415 U.S. 308 (1974) .... 2... ... 3

Delaware v. Van Arsdall, 475 U.S. 684 (1986) .... 5

Maryland v. Craig, 110 S.Ct.3157 (1990) ........ 3

Reilly v. Pinkus, 338 U.S. 269 (1949) ...... 2... .. 4

United Staies v. Bagley, 473 U.S. 667 (1985) ..... 6

MILITARY CASES:

United States v. Banker, 15 M.J. 207 (C.M.A.

Sh Aa ec URE Y roe we seee eens eed oeevices 4,5

United States v. Benedict, 20 M.J. 939

a as BUND os ¢ctencdcavecevevenanas 4

United States v. Clifton, 18 M.J. 26 (C.M.A.

ee eee eae becuse bese kode dxxs 6

United States v. Eshalomi, 23 M.J. 12 (C.M.A.

In the Supreme Court of the United States

OCTOBER TERM, 1995

No.

CARLOS COLEMAN, 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

The petitioner, Carlos Coleman, respectfully prays that

a writ of certiorari issue to review the judgment of the

United States Court of Appeals for the Armed Forces

entered in his case on September 29, 1994.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Armed Forces is reported at ____ MJ _____ (C.M.A.

1994) (Appendix A). The unreported opinion of the

United States Air Force Court of Criminal Appeals, issued

on February 23, 1993, is attached (Appendix B).

JURISDICTION

The final order of the United States Court of Appeals

for the Armed Forces was entered on September 29, 1994.

The jurisdiction of this Court is invoked under 28 USCA

§ 1259(3) (Supp. 1992) and 10 USCA § 867(a) (Supp.

1992).

(1)

STATEMENT OF THE CASE

On 8 and 9 May 1991, the appellant was tried by a

General Court-Martial at McClellan Air Force Base,

California, on charges of committing indecent acts upon a

female under the age of 16 on divers occasions and, in ad-

dition, committing the offense of carnal knowledge with

the same female on two separate occasions. Notwithstan-

ding his pleas, he was found guilty of committing indecent

acts on divers occasions and guilty of attempted carnal

knowledge on two occasions.

During the course of appellant’s trial, Ms. Julie Holder,

a Family Advocate Therapist at the David Grant Medical

Center on Travis Air Force Base, testified during the

government’s case in chief with regard to the Child Abuse

Accommodation Syndrome developed by Dr. Roland

Summit. Ms. Holder testified that there are as many as

five different stages a child goes through once he or she

has been sexually abused. After Ms. Holder’s direct, the

appellant’s counsel attempted to cross examine her with an

Article by Dr. Lee Coleman, found in the Forum Maga-

zine entitled, “False Allegations of Child Sexual Abuse,

How the Experts Have Been Caught With Their Pants

Down”. Initially, the witness admitted that she was

familiar with Dr. Coleman’s article and with the work of

professionals critical of Dr. Summit’s work. Defense

counsel then tried to cross examine Ms. Summit by

reading various passages from Dr. Coleman’s article to her

and asking her whether she agreed or disagreed with the

comments made therein. At this point, trial counsel ob-

jected to defense counsel cross-examining Ms. Holder in

such a manner, said objection being sustained by the

military judge.

On appeal to the Air Force Court of Criminal Appeals,

appellant asserted that the military judge, by granting the

trial counsel’s objection, effectively deprived him of his

Sixth Amendment right to fully cross examine the wit-

3

nesses against him. In its opinion (Appendix B), the Air

Force Court of Criminal Appeals summarily dismissed

this issue without comment. The United States Court of

Appeals for the Armed Forces granted review on this

issue. After hearing argument, the court held that the

military judge did not abuse his discretion in denying

_ defense counsel the opportunity to cross-examine Ms.

Holder using “hearsay that the defense failed to establish

was an authoritative publication.”

REASONS FOR GRANTING THE WRIT

THE MILITARY JUDGE ERRED TO THE

SUBSTANTIAL PREJUDICE OF THE AP-

PELLANT BY IMPROPERLY RESTRICTING

THE DEFENSE CROSS-EXAMINATION OF THE

GOVERNMENT'S EXPERT WITNESS

The military judge erred to the prejudice of the ap-

pellant by inappropriately restricting the appellant’s Sixth

Amendment constitutional, as well as his statutory and

evidentiary rights, to fully cross-examine the witnesses

against him. “Cross-examination is the principal means by

which the believability of a witness and the truth of his

testimony are tested. “Davis v. Alaska, 415 U.S. 308, 317

(1974). Cross-examination has been described as the

“greatest legal engine ever invented for the discovery of

truth.” Maryland v. Craig, 110 S.Ct 3157, 3163 (1990).

Specifically, the military judge in the case sub judice con-

fused the proper methods of cross-examination and im-

peachment with Mil.R.Evid. 802 which disallows hearsay

at courts-martial unless as provided by the Military Rules

of Evidence or by Act of Congress.

Mil. R. Evid. 803(18) provides:

To the extent called to the attention of an expert

witness upon cross-examination or relied upon by the

expert in direct examination, statements contained in

4

published treatises, periodicals, or pamphlets on a

subject of history, medicine or other science or art,

established as a reliable authority by the testimony or

admission of the witness or by other expert testimony

or by judicial notice. If admitted, the statements may

be read into evidence but may not be received as ex-

hibits.

In Reilly v. Pinkus, 338 U.S. 269 (1949), this Honorable

Court pointed out that testing of professional knowledge

was incomplete without exploration of the witness’

knowledge of and attitude toward established treatises in

the field. Quite clearly, Dr. Coleman’s article in the Forum

magazine was a periodical in that category of learned

periodicals encompassed by Mil.R. Evid. 803(18). See

e.g., United States v. Benedict, 20 M.J. 939, 943

(A.F.C.M.R. 1985). Moreover, because the article was

called to the witness’s attention, the article could have

been read into evidence should the defense counsel have

been so inclined. Mil.R. Evid. 803(18). In addition to be-

ing admissible evidence, Dr. Coleman’s article referenced

in defense counsel’s cross-examination was proper rebuttal

in its own right. He was testing the prosecution’s expert

witness’s espousal of a theory criticized in an article with

which the witness was familiar. Indeed, the Court of Ap-

peals for the Armed Forces has defined impeachment as “a

process of explaining away a witness’s testimony as to the

existence of a fact at issue at trial,” and one way of achiev-

ing this end, the Court noted, was “showing the tribunal

the contrary of a witness’s asserted fact, so as to raise an

inference of a general defective trustworthiness.” United

States v. Banker, 15 M.J. 207, 210 (C.M.A. 1983). See

also Mil. R. Evid. 607. Finally, the fact that the defense

counsel was also attempting to cross-examine Ms. Holder

by asking whether or not she agreed with the statements of

other experts writing in this field is perfectly proper and

should have been allowed by the military judge over prose-

cution objection. See e.g., Banker, supra at 211 (Court

noted defense attempt to adduce contradicting evidence

from a witness on cross-examination) McCormick on

Evidence, § 47 (E. Cleary 3d ed. 1984) (Facts sought to be

contradicted can be elicited on cross-examination);

Saltzburg, Schnasi, Schlueter, Military Rules of Evidence

Manual 804 (3d ed. 1991) (The cross-examiner may use the

treatise whether or not the expert agrees that it is reliable

and whether or not the expert ever has seen the treatise

before).

The aforementioned rulings by the military judge ir-

reparably prejudiced the appellant. In Delaware v. Van

Arsdall, 475 U.S. 684, 685 (1986), this Court set forth the

following test to gage the impact of judicial error in limit-

ing cross-examination with regard to previous false state-

ments:

The correct inquiry is whether, assuming that the

damaging potential of the cross-examinations were

fully realized, a reviewing court might nonetheless say

that the error was harmless beyond a reasonable

doubt. Whether such an error is harmless in a parti-

cular case depends upon a host of factors, all readily

accessible to reviewing courts. These factors include

the importance of the witness’ testimony in the prose-

cution’s case, whether the testimony was cumulative,

the presence or absence of evidence corroborating or

contradicting the testimony of the witness on material

points, the extent of cross-examination otherwise per-

mitted, and, of course, the overall strength of the

prosecution’s case. (citations omitted).

The major weapon in the prosecution’s arsenal was the

issue of whether the testimony of Ms. Brown should be

believed. The judge’s rulings, cutting off the defense’s

ability to vigorously challenge the prosecution’s attempt to

ae

6

bolster Ms. Brown’s testimony by way of Ms. Holder’s ex-

pert testimony, gutted the appellant’s trial defense. The

Court of Appeals for the Armed Forces has emphasized

the critical importance of impeachment evidence, citing

this Honorable Courts rejection in United States v.

Bagley, 473 U.S. 667 (1985), of the proposition that there

is a distinction between impeachment evidence and ex-

culpatory evidence. United States v. Eshalomi, 23 M.J. 12

(C.M.A. 1986). “[T]he government’s failure to disclose re-

quested impeachment evidence that the defense could use |

to conduct an effective cross-examination of important |

prosecution witnesses,” the Court quoted, “constitutes |

constitutional error of the first magnitude requiring |

automatic reversal,” Id. at 22-23. The same is just as true |

in this case, where the defense was estopped by the |

military judge from using evidence necessary for the

proper examination of the prosecution’s expert witness. |

In sum, the members should have been able to consider

the testimony of Ms. Holder only after it was properly

tested by the crucible of cross-examination. Failure to |

allow her proper cross-examination gave the prosecution |

an improper and valuable assist towards securing the ap- |

pellant’s conviction. The defense should have been able to

exercise its right to properly examine Ms. Holder, the |

prosecution’s “expert” witness. Denying the appellant this

right was akin to denying the appellant the right to a fair

trial. Cf. United States v. Clifton, 15 M.J. 26 (C.M.A.

1983). This is especially true in light of the fact he was

ultimately convicted of a lessor included offense with

regard to Charge II.

CONCLUSION

The military judge’s improper limitation of the defense

opportunity to cross-examine the government’s expert

witness violated the appellani’s Sixth Amendment right to

confront and effectively cross-examine the witnesses

against him. This abuse of discretion by the inilitary judge

irreparably damaged the defense case. Consequently, this

Honorable Court should grant this petition for a Writ of

Certiorari

December 1994

JAY LINDSEY COHEN

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel of Record

Eric N. EKLUND

Captain, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

AIR FORCE LEGAL SERVICES AGENCY

Appellate Defense Division

172 Luke Avenue, Suite 208

Bolling AFB, DC 20332-5113

APPENDICES

OPP, a. Sk

APPENDIX A

UNITED STATES COURT OF MILITARY APPEALS

No. 93-0920/AF

CMR No. 29450

UNITED STATES, APPELLEE

Vv.

CARLOS COLEMAN, STAFF SERGEANT

U.S. AIR FORCE, APPELLANT

Argued April 19, 1994

Decided Sep. 29, 1994

Counsel

For Appellant: Captain Eric N. Eklund (argued); Col-

onel Jay L. Cohen (on brief); Lieutenant Colonel Frank J.

Spinner and Captain David D. Jividen.

For Appellee: Major Barnard N. Madsen (argued);

Colonel Jeffery T. Infelise (on brief).

Military Judge: William C. Thompson, Jr.

Opinion of the Court

Wiss, Judge:

Appellant was tried by a general court-martial com-

posed of officer members at McClellan Air Force Base,

California, on May 8 and 9, 1991. Contrary to his pleas,

(la)

2a

he was found guilty of attempted carnal knowledge (two

specifications)' and of committing indecent acts upon a

child, in violation of Articles 80 and 134, Uniform Code

of Military Justice, 10 USC §§ 880 and 934, respectively.

He was sentenced to a bad-conduct discharge, confine-

ment and forfeiture of $550.00 pay per month for 3 years

and reduction to E-1. The convening authority approved

the sentence as adjudged, and the Court of Military

Review affirmed in an unpublished opinion dated

February 23, 1993.

This Court granted review of the following issue:

WHETHER THE MILITARY JUDGE ERRED, TO

THE PREJUDICE OF APPELLANT, BY IM-

PROPERLY RESTRICTING THE DEFENSE

CROSS-EXAMINATION OF A GOVERNMENT

EXPERT WITNESS.

We hold that the military judge did not abuse his discre-

tion in denying defense counsel the opportunity to cross-

examine a prosecution expert witness using hearsay that

the defense failed to establish was an authoritative

publication.

The victim in this case was a 14-year-old female who

testified as to appellant’s acts of sexual molestation. The

credibility of the victim was the linchpin of the prosecu-

tion’s case. To support the victim’s credibility by explain-

ing why a child may delay or not report these matters and

“what is going on through the mind of a [sexually abused]

child,” the prosecution presented an expert witness. The

present issue arises from the military judge’s restriction

' Apellant was found not guilty of the allegation in these two

specifications that he had committed carnal knowledge alleged under

Article 120, Uniform Code of Military Justice, 10 USC § 920.

3a

of defense counsel’s cross-examination of this witness.

The witness in question was Mrs. Julie Holder, a family

advocacy therapist at the David Grant Medical Center,

Family Advocacy Clinic, Travis Air Force Base, Califor-

nia, who the prosecution offered as an expert on child sex

abuse. She opined that it is not unusual for sexually

abused children not to report the abuse because the child is

often “confus[ed] about how to handle the situation.” Her

brief substantive testimony on direct examination, cover-

ing only four pages in the record, included an explanation

of the five phases of the Child Sexual Abuse Accommoda-

tion Syndrome as presented by Dr. Roland Summit in a

1983 published study.? As Mrs. Holder stated that she had

seen the alleged victim one time for approximately 1 hour

and Mrs. Holder did not proffer an opinion as to whether

the victim fit within this syndrome, defense counsel did

not object to Mrs. Holder’s credentials as an expert or to

her testimony.

On cross-examination, however, defense counsel

chailenged the authority of Dr. Summit’s work, which

Mrs. Holder had recited. First, counsel established that

Mrs. Holder was “familiar with some critics of that par-

ticular work... .” Second, without objection by trial

counsel, defense counsel relied upon an article by Dr. Lee

Coleman, published in the January-February 1986 issue of

Forum magazine, entitled, “False Allegations of Child

Sexual Abuse, How The Experts Have Been Caught With

Their Pants Down.” Mrs. Holder testified that she thought

? Mrs. Holder presented the five phases of Child Sexual Abuse Ac-

commodation Syndrome as: 1) The abuse is a “secret” that the child

should not tell to anyone; 2) The child is helpless—not knowing

“where to turn or whai to do about” the abuse; 3) The child is

“entrap[ped]” in “a symbiotic relationship” with the offender and “ac-

commodate[s] what’s happening”; 4) After discovery of the abuse, the

child presents a “confusing, conflicting disclosure”; 5) The child can

“actual[ly] retract]” the allegation.

4a

that she had “scanned” this article, and counsel used it as a

basis to present detailed questions to Mrs. Holder.

Defense counsel elicited Mrs. Holder’s agreement with Dr.

Coleman that the syndrome actually cannot indicate

“whether a child has or has not been the victim of sexual

abuse.” As counsel continued to make references to Dr.

Coleman’s article, however, Mrs. Holder declined to re-

spond directly to questions about whether Dr. Summit had

used the syndrome actually to indicate whether a child has

or has not been the victim of sexual abuse, as she had

agreed with Dr. Coleman’s view could not be done, and-

whether Dr. Coleman had indicated that children can be

subjected to manipulation by adults other than the alleged

sexual offender.

At one point, when defense counsel attempted to ask

Mrs. Holder if she agreed with a particular statement of

Dr. Coleman, trial counsel objected to defense counsel’s

“reading from an article, that’s inadmissible hearsay... .”

Defense counsel replied that, as Mrs. Holder had testified

about one theory regarding child sexual abuse, the defense

was attempting to test her expertise by reference to “a par-

ticular work” that states “converse theories.” The military

judge sustained the prosecution’s objection, stating, “You

may question her about alternative theories not by reading

from a book or article, counsel.”

With this exchange, defense counsel abandoned any at-

tempt to use Dr. Coleman’s material and instead set out to

question Mrs. Holder about “a developing idea” regarding

child sexual abuse put forth by Dr. Thomas Martin, chief

of psychiatry for the Wilford Hall Medical Center at

Lackland Air Force Base, Texas. However, when Mrs.

Holder stated that she did not know of Dr. Martin, the

military judge sustained trial counsel’s objection to

defense questions about “a developing idea.” The military

judge instructed defense counsel that he was permitted to

ask Mrs. Holder “about the proposition” but prohibited

Sa

defense counsel from “elud{ing] [sic] to the authority by

someone whom you are manufacturing through a hole

cloth [sic] here, and not the testimony of the witness... .”

Thus, defense counsel again abandoned any attempt to

establish the “proposition” or its authority and moved to

an altogether new line of questioning. Defense counsel

elicited Mrs. Holder’s admission that she had made no

diagnosis that the child sexual abuse accommodation syn-

drome applied to the victim in this case and that she was

unable to adress whether the victim’s allegations were true.

On redirect examination, Mrs. Holder testified that,

based on the information she had, the victim presented

nothing inconsistent with someone who might fit the child

sexual abuse accommodation syndrome. Defense counsel

waived recross-examination.

On appeal appellant asserts that the military judge im-

properly restricted defense counsel during cross-

examination by disallowing defense counsel from reading

from Dr. Coleman’s article in Forum magazine, as the ar-

ticle was a learned periodical encompassed t-’ Mil.R.Evid.

803(18), Manual for Courts-Martial, United States, 1984.

We disagree. Because the defense failed to establish the

proper evidentiary foundation —that Dr. Coleman’s article

was a reliable expert publication—we conclude that the

military judge properly denied the defense the opportunity

to cross-examine Mrs. Holder using this otherwise inad-

missible hearsay either as substantive evidence or as a basis

of impeachment.

Il

A

Mil.R.Evid. 803(18)? states that the following is “not

> The Military Rule is identical to the Federal Rule except for use of

the words “the expert” in lieu of “the expert witness” regarding direct

6a

excluded by the hearsay rule”:

To the extent called to the attention of an expert

witness upon cross-examination or relied upon by the

expert in direct examination, statements contained in

published treatises, periodicals, or pamphlets on a

subject of history, medicine, or other science or art,

established as a reliable authority by the testimony or

admission of the witness or by other expert testimony

or by judicial notice. If admitted, the statements may

be read into evidence but may not be received as ex-

hibits.

This rule allows authoritative publications in particular

subject areas to be used as substantive evidence, provided

certain conditions are met: “[T]here must be a preliminary

showing that the” publication’s authority “is reliable,” and

the evidence must be “treated as testimony” and “intro-

duced orally.” J. Weinstein & M. Berger, 4 Weinstein’s

Evidence (hereafter Weinstein’s Evidence § 803(18){01] at

803-371 and 803-373 (1994). 4

examination. Drafter’s Analysis to Mil.R.Evid. 803(18), Manual for

Courts-Martial, United States, 1984, at A22-50 (Change 2).

* Another authority concisely states the requirements of this rule as

follows:

To be used, treatises must be reliable. Reliability can be estab-

lished throuth the witness’ testimony, through subsequent expert

testimony, or by judicial notice. If reliable, the treatise can be

used on direct examination if relied upon by the expert. The

cross-examiner may use the treatise whether or not the expert

agrees that it is reliable and whether or not the expert ever has

seen the treatise before. A treatise may be read to the finders of

fact, but may not be given to them as an exhibit, unless it is not

feasible to read the treatise. . . .

S. Saltzburg, L. Schinasi, & D. Schlueter, Military Rules of Evidence

Manual 804 (3d ed. 1991).

EOL TL

7a

Mil.R.Evid. 803(18) expressly requires that statements

in question be published in treatises, periodicals, or pam-

phliets that are “reliable authority.” See United States v.

Jackson, 38 MJ 106 (CMA 1993), cert. denied, 114 S.Ct.

1056 (1994). Thus, the publication must be shown to be

one that is “currently accepted and recognized as authority

in the profession.” E. Imwinkelried, P. Giannelli, F.

Gilligan, F. Lederer, Courtroom Criminal Evidence

§ 1228 at 350 (2d ed. 1993).

Mil.R.Evid. 803(18) expressly sets forth the three

methods available to establish the authority of the publica-

tion: (1) by testimony or admission of the witness, (2) by

other expert testimony, or (3) by judicial notice. “The pro-

ponent of the treatise [or other publication] may not read

from it or question the expert in regard to it except as to its

status as an authority, until its authoritativeness has been

established to the satisfaction of the trial judge, and its

relevancy to a material, consequential fact has been

shown.” Weinstein’s Evidence, supra, 4 803(18)[02] at

803-377 to 803-378 (footnote omitted). Thus, publication

alone does not automatically establish a particular writing

as reliable authority; instead, its reliability must be estab-

lished by proving its authoritative nature via any of the

three available means previously mentioned. Meschino v.

North American Drager, Inc., 841 F.2d 429, 433-34 (Ist

Cir. 1988).

Accordingly, the central question in this case is whether

defense counsel, as the proponent of the evidence, laid a

proper foundation for admission of Dr. Coleman’s article

as substantive evidence through the hearsay exception of

Mil.R.Evid. 803(18). See Schneider v. Revici, 817 F.2d

987, 991 (2d Cir. 1987). A determination of the military

judge on admissibility of such evidence will not be dis-

turbed absent a clear abuse of discretion. United States v.

Jenkins, 27 MJ 209 (CMA 1988); United States v. Mukes,

18 MJ 358 (CMA 1984). See also Weinstein’s Evidence,

supra, 4 803(18)[02] at 803-378.

8a

We conclude that the military judge here did not abuse

his discretion in prohibiting cross-examination of Mrs.

Holder regarding the published article of Dr. Coleman,

because defense counsel failed to establish the proper evi-

dentiary foundation of reliability. Indeed, counsel did not

even attempt to establish the evidentiary foundation by us-

ing any of the three methods authorized by Mil.R.Evid.

803(18). Counsel did establish that Mrs. Holder thought

she had “scanned” the article, but this surely was not ade-

quate to establish it as any authority. As defense counsel

made no attempt to establish Dr. Coleman’s qualifications

or the text’s status as a standard authority, the military

judge properly sustained trial counsel’s objection to the

text as substantive evidence and prevented defense counsel

from “reading from a book or article. . . .” °

B

It is equally clear that the military judge did not

improperly restrict defense counsel’s attempt to impeach

Mrs. Holder’s testimony by cross-examining her through

Dr. Coleman’s work. In Reilly v. Pinkus, 338 U.S. 269

(1949), the Supreme Court did recognize the right to cross-

examine witnesses “concerning statements in other medical

books, some of which at least were shown to be respec-

table authorities.” 338 U.S. at 275. The Court reasoned:

It certainly is illogical, if not actually unfair, to per-

* The proper method of laying the evidentiary foundation is

presented in a variety of books on evidence and trial practice. See,

e.g., E. Imwinkelried, P. Giannelli, F. Gilligan, F. Lederer, Cour-

troom Criminal Evidence § 1229 at 352-53 (2d ed. 1993). Opposing

counsel waives any deficiencies in the foundation by failing to object.

Mil.R.Evid. 103(a)(1), Manual for Courts-Martial, United States,

1984; United States v. Jackson, 38 MJ 106 (CMA 1993), cert. denied,

114 S.Ct. 1056 (1994).

|

| RN RMR eR TT

9a

mit witnesses to give expert opinions based on book

knowledge, and then deprive the party challenging

such evidence of all opportunity to interrogate them

about divergent opinions expressed in other reputable

books.

338 U.S. at 275. Indeed, impeachment with a learned

publication is a valid tactic in all jurisdictions. P. Giannelli

& E. Imwinkelried, 1 Scientific Evidence (hereafter Scien-

tific Evidence) § 5-9 at 160 (2d ed 1993); see, e.g., United

States v. Jackson, supra; United States v. Benedict, 27 MJ

253 (CMA 1988). However, there is some disagreement

regarding the conditions under which a publication may be

used for this purpose; yet it is clear that a condition prece-

dent to such an impeachment effort is that the cross-

examiner establish the publication as a recoganized or

reputable authority, through the witness or other means.°®

See Reilly v. Pinkus, supra at 275; 1 Scientific Evidence,

supra at 160; 6 Wigmore, Evidence § 1700 at 25 (Chad-

bourn rev. 1976).

In the present case, as we pointed out earlier, defense

counsel failed in any way to establish as reputable authori-

ty either Dr. Coleman’s article or Dr. Martin’s “developing

idea.” Considering this foundation defect and _ trial

counsel’s objections, the judge properly prohibited

defense counsel from using this material to impeach Mrs.

Holder. ? In this connection, we note that the military

® This case does not present a need for this Court to decide what

means may be used to establish the authority of a publication to be

used in cross-examination for impeachment, and the issue was not

briefed or argued by the parties. See generally Fed.R.Evid 803(18),

Commentary, J. Weinstein & M. Berger, 4 Weinstein’s Evidence

4 803(18)[2] at 803-376 to 803-380.

’ As trial counsel made no objection to defense counsel’s initial

question to Mrs. Holder regarding Dr. Colem in’s article, the military

judge could permit defense counsel to question her with respect to this

article. See Mil.R.Evid. 103(a)(1).

10a

judge did not otherwise limit the defense cross-

examination of Mrs. Holder.*®

As the military judge did not abuse his discretion either

in excluding the defense proferred hearsay as substantive

evidence or in restricting defense cross-examination of

Mrs. Holder, we find no merit in appeallant’s claim of er-

ror.

The decision of the United States Air Force Court of

Military Review is affirmed.

Chief Judge SULLIVAN and Judges Cox, CRAWFORD,

and GIERKE concur.

* This case is distinguished from United States v. Banks, 36 MJ 150

(CMA 1992), where it was error to deny the defense expert witness the

opportunity to discuss and to challenge the reliability of references

and data previously discussed by the prosecution’s expert. /d. at 167.

lla

APPENDIX B

UNITED STATES AIR FORCE COURT

OF MILITARY REVIEW

ACM 29450

UNITED STATES

v.

STAFF SERGEANT CARLOS COLEMAN, FR261-57-5699

UNITED STATES AIR FORCE

23 February 1993

Sentence adjudged 9 May 1991 by GCM convened at

McClellan Air Force Base, California. Military Judge;

William C. Thompson, Jr.

Approved sentence: Bad-conduct discharge, confine-

ment for 3 years, forfeiture of $550 pay per month for 3

years, and reduction to E-1.

Appellate Counsel for the Appellant: Colonel Jeffrey R.

Owens and Captain David D. Jividen.

Appellate Counsel for the United States: Colonel

Richard L. Purdon, Lieutenant Colonel Brenda J. Hollis,

Lieutenait Jeffrey T. Infelise, Major Paul H. Blackwell.

Jr.

Before

O’HAIR, SNYDER, and GRUNICK

Appellate Military Judges

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PER CURIAM:

Contrary to his pleas, appellant was convicted by a

general court-martial with members of, on divers occa-

sions committing indecent acts with a minor female (AB),

and two incidents of attempted carnal knowledge with

AB, in violation of Articles 134 and 80, UCMJ. The

sentence approved by the convening authority included a

bad-conduct discharge, confinement for 3 years, forfei-

tures of $550 per month for 3 years, and reduction to E-1.

We have examined the four assignments of error submit-

ted by appellant and, finding no errors, we affirm.

INEFFECTIVE ASSISTANCE OF COUNSEL

Appellant claims he was not accorded his Sixth Amend-

ment right to receive effective assistance of trial defense

counsel because of the many deficiencies in the assistance

he received from his civilian and military trial defense

counsel. His laundry list of complaints includes counsel

failing to preserve for appellate review a challenge for

cause against one of the prospective court members, con-

ceding during opening statement that appellant committed

an indecent act, failing to object to hearsay testimony

received by a pediatrician from the victim, failing to object

to the testimony from a clinical social worker, and finally

conceding appellant’s guilt to an indecent assault.

The issue of ineffectiveness of counsel is a question of

law which is resolved by a review of appellant’s alleged er-

rors to determine whether they are so serious that there is a

reasonable probability the outcome would have been dif-

ferent had they not occurred. Strickland v. Washington,

466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984);

United States v. Cordes, 33 M.}. 462 (C.M.A. 1991);

United States v. Bono, 26 M.J. 240 (C.M.A. 1988).

13a

Reversal of a conviction for denial of such assistance re-

quires the appellant show defense counsel’s assistance was

deficient and the deficiency prejudiced the appellant. We

must determine whether the appellant received a fair trial

and whether his counsel’s performance was reasonable

under the circumstances, understanding the acceptable

range of performance is wide. Washington, supra at

688-91.

The only aspect of appellant’s complaint of ineffective

assistance of counsel which we believe merits any com-

ment concerns the opening statement and closing

arguments on findings. Civilian defense counsel, in open-

ing statement and again in closing argument, admitted ap-

pellant committed one sexuai “indiscretion” with a minor,

AB. Appellant’s military trial defense counsel, in an af-

fidavit, responded that these concessions were done with

appellant’s knowledge and consent in an effort to put

forth the defense’s theory that only one explainable inde-

cent act occurred, without sexual intercourse. The trial

court’s findings show the defense strategy was successful

in that the appellant was found guilty of only attempted

carnal knowledge and not guilty of twice committing

wrongful sexual intercourse with a minor, as charged. Ap-

plying the Strickland test to appellant’s arguments, and

after reviewing the performance of counsel during the

trial, we are convinced that appellant’s counsel were not

deficient and appellant was not deprived of a fair trial. We

find appellant has failed to overcome the strong presump-

tion of counsels’ competence. Washington, supra; United

States v. Barnard, 32 M.J. 530 (A.F.C.M.R. 1990), pet.

denied, 33 M.J. 484 (C.M.A. 1991).

VERBATIM RECORD

Appellant has submitted several affidavits that state,

during the trial, his civilian defense counsel instead of

l4a

referring to him as Carlos Coleman, several times in-

advertently called appellant, Carlos Murphy. The record

of trial does not make reference to these misstatements by

civilian defense counsel, thus giving rise to appellant’s

complaint the record of trial is not verbatim. Assuming

appellant is correct in his assertion, we find these misstate-

ments of appellant’s name to be insubstantial omissions

from a record of trial that do not affect its characteriza-

tion as a verbatim transcript. United States v. Lashley, 14

M.J. 7 (C.M.A. 1982); United States v. McCullah, 11

M.J. 234 (C.M.A. 1981); United States v. Sturkey, 23

M.J. 522 (A.F.C.M.R. 1986). Given the nature of these

omissions and the framework of this trial, we perceive no

possibility of prejudice to appellant.

CONCLUSIONS

We have examined appellant’s remaining two assign-

ments of error and find them to be without merit. The

military judge did not abuse his discretion in limiting

civilian defense counsel’s cross-examination of a clinical

social worker. Mil. R. Evid. 803(18). Appellant was not

entitled to proceedings presided over, at the trial and ap-

pellate level, by judges with fixed terms. United States v.

Weiss, M.J. ___., No. 67, 869/MC (C.M.A. Dec.

21, 1992); United States v. Graf, 35 M.J. 450 (C.M.A.

1992).

The findings and sentence are correct in law and fact,

the sentence is appropriate, and no error prejudical to the

substantial rights of the appellant was committed. Accord-

ingly, the findings of guilty and sentence are

AFFIRMED.

[SEAL OMITTED]

15a

OFFICIAL

/s/ Naomi D. Allen

NAomI D. ALLEN

TSgt, USAF

Chief Court Administrator, AFCMR