Petition for Writ of Certiorari — Casteel v. United States

No. OFFICE ie ites

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1996

LESTER C. CASTEEL

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 A WRIT OF CERTIORARI

JOHN FRANCIS HAVRANEK

Major, U.S. Marine Corps

Counsel of Record

STEPHEN DEANE CHACE

Major, U.S. Marine Corps

Navy-Marine Corps Appellate

Defense Division

Washington Navy Yard, Building i111

Washington, D.C. 20374-1111

(202) 433-4161

8

QUESTION PRESENTED

IS CONFRONTATION SATISFIED FOR THE

ADMISSION OF A RESIDUAL HEARSAY

STATEMENT WHEN THE DECLARANT CANNOT

BE CROSS-EXAMINED BECAUSE SHE

DISCLAIMS ALL KNOWLEDGE OF THE

STATEMENT AND THE UNDERLYING EVENT?

(i)

TABLE OF CONTENTS

Se Mo ap te ewe ves oe es oe nas l

I th i Nik head cM a. ew dee 8 0 8 2

CONSTITUTIONAL PROVISIONS, STATUTES,

AND REGULATIONS INVOLVED ............ 2

DEPRRRIIMITE GPE EESES RANGE cee eee eens 2

REASON FOR GRANTING THE WRIT

THE RIGHT TO CONFRONTATION

IS NOT SATISFIED WHEN A

RESIDUAL HEARSAY STATEMENT

IS ADMITTED AND THE

DECLARANT CANNOT BE CROSS-

EXAMINED ABOUT THE MAKING

OF THE STATEMENT OR THE

UNDERLYING EVENT. ........... Sew

CONCLUSION

APPENDIX A:

(Opinion of the U.S. Court of Appeals for

a a a we Wale woo la

APPENDIX B:

(Opinion of the U.S. Navy-Marine Corps

Court of Military Review) ............. 26a

(111)

TABLE OF AUTHORITIES

Cases: ~ Page

Barksdale v. State, 453 S.E.2d 2 (1995) .......... 12

Bruton v. United States, 391 U.S. 123 (1968) ...... 12

California v. Green, 399 U.S. 149 (1970) . 6, 8, 9, 10

Delaware v. Fensterer, 474 U.S. 15 (1985) ..... 6, 10

Dolny v. Erickson, 32 F.3d 381 (8th Cir. 1994),

cert. denied, 115 S. Ct. 907 (1995) ........ 7

Douglas v. Alabama, 380 U.S. 415 (1965) ..... 11, 12

Douglas v. United States, 380 U.S. 414 (1965) ..... 9

Idaho v. Wright, 497 U.S. 805 (1990) ........... 5

Johnson v. Lockhart, 71 F.3d 319 (8th Cir. 1995) ... 7

Kentucky v. Stincer, 484 U.S. 730, (1987) ........ 9

Mattox v. United States, 156 U.S. 237 (1894) ...... 1]

Mayes v. Sowders, 621 F.2d 850 (6th Cir. 1980),

cert. denied, 449 U.S. 922 (1980) ......... 12

Pennsylvania v. Ritchie, 480 U.S. 39 (1987) ....... 8

United States ex rel. Thomas v. Cuyler, 548 F.2d 460

Ie CA SOFT 6k Fe Wes wk ewe ees 7

United States v. Baker, 722 F.2d 343 (7th Cir.

1984), cert. denied, 465 U.S. 1037 (1984) ... 7

United States v. Casteel, MJ. (C.A.A.F. 1996) 1

United States v. Casteel, No. 93-00109

CGAL. Bae 31, ISPS) ow. ce wes l

United States v. DiCaro, 772 F.2d 1314 (7th Cir.

1985), cert. denied, 475 U.S. 1081 (1986) ... 8

United States v. Martindale, 40 M.J. 348 (C.M.A.

1994), cert. denied, 115 S. Ct. 907 (1995) ... 7

United States v. McGrath, 39 M.J. 158 (C.M.A. 1994),

cert. denied, 115 S. Ct. 420 (1994) ........ 6

United States v. Owens, 484 U.S. 554 (1989) . 5, 9, 10

United States v. Payne, 492 F.2d 449 (4th Cir.

1973), cert. denied, 419 U.S. 876 (1974) .... 7

United States v. Spotted War Bonnet, 933 F.2d 1471

(8th Cir. 1991), cert. denied, 502 U.S. 1101

JE i” 6 BR eSn i get nae REALS Ps graben eg 7, 3

Vogel v. Percy, 691 F.2d 843 (7th Cir. 1982) ...... 8

Constitutional Provisions:

Cs Ge ME WE. as a ee dee we es a te

(v)

Statutes and Rules:

fib toe By. 6) eee ee ee ee ee ea 2

Mil. R. Evid. 803(24) ....... 22 c eee eecerees 3

(vi)

IN THE

Supreme Court of the Bnited States

OCTOBER TERM, 1996

LESTER C. CASTEEL,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE ARMED FORCES

OPINIONS BELOW

The September 30, 1996 opinion of the United

States Court of Appeals for the Armed Forces

(hereinafter C.A.A.F.], United States v. Casteel, _ M.J.

__, (C.A.A.F. 1996), is reprinted as Appendix A at Pet.

App. la.

The March 31, 1994 unpublished opinion of the

Navy-Marine Corps Court of Military Review

[hereinafter N.M.C.M.R.], United States v. Casteel, No.

93-00109 (N.M.C.M.R. March 31, 1994), is reprinted as

Appendix. B at Pet. App. 26a.

(1)

2

JURISDICTION

The United States Court of Appeals for the Armed

Forces affirmed the decision of the Navy-Marine Court

of Military Review on September 30, 1996 (Appendix A

at Pet. App. la.) The jurisdiction of this Court is

invoked under 28 U.S.C. § 1259(3).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The Sixth Amendment provides, in relevant part:

In all criminal prosecutions, the accused

shall enjoy the right . . . to be confronted

with the witnesses against him....

STATEMENT OF THE CASE

At his trial in June 1992, Petitioner was charged

with various offenses of child sexual abuse involving

two of his own children and two children of his live-in

girlfriend. One of the charges alleged he committed

indecent acts with Allison Garling, the six-year-old

daughter of his girlfriend. Based on pretrial interviews

with Allison, the prosecutor believed that Allison would

not or could not testify at trial about the allegations.

The prosecutor believed that Allison would either deny

the abuse occurred, or have an actual or feigned memory

loss about the abuse. The government nioved in limine

for admission of an audio tape interview of Allison taken

by a police officer a year earlier. Defense counsel

objected to the admission of the taped interview on

grounds that it violated Petitioner’s right to confrontation

guaranteed under the Sixth Amendment.

3

In support of his motion requesting admission of the

tape, the prosecutor presented only three documents: a

transcript of the interview, a statement by the police

officer which summarized the interview, and a statement

of a therapist who had been treating Allison. The trial

judge made a provisional ruling that if the prosecutor’s

assertions were true, he would admit the taped interview

under Military Ruie of Evidence 803(24) because it had

"some accompanying guarantees of trustworthiness."

Specifically, the trial judge found that the statement did

not appear rehearsed, it appeared to be from Allison’s

memory as opposed to suggestive questioning, and it

appeared that Allison was afraid of Petitioner.

During trial, three of the children testified

concerning the charges pertaining to them and were

cross-examined by Petitioner’s defense counsel. Allison

was not cross-examined. Allison testified via video

camera from a separate room. Allison’s entire sworn

testimony consisted of:

Where do you live now?

Pixley.

And whose--who do you live with?

Grandma Hanley.

And who is she?

My foster mother.

. And did you use to live in Porterville

[California]?

A. Yeah.

Q. And where did you live before that?

A. Virginia.

Q. And do you remember the first time

Sally [Detective Sally Blagg,] came to see

you?

A. Yeah.

QO>OPO>O

4

Was that--is that a long time ago?

Yeah.

Have you ever toid a lie to Sally?

(No audible response.)

Okay. When--when you talked to

Sally with the tape recorder, did you tell

her the truth?

A. The things that I told her was, I think----

Q. Do you think what you told her was

the truth?

A. I don’t know. I don’t remember what

I told her.

Q. Okay. Okay. How do you... feel

about-do you remember Charlie [the

familial name for appellant, Lester Charles

Casteel]?

(No audible response.)

How do you feel about Charlie?

Still mad at him.

Why?

Because he did mean things to me.

What--what kind of mean things did he do?

Spanked us.

Did he do other things too?

(No audible response.)

Did he do other bad things to children

other than spank them?

A. I don’t know.

Q. Did--do you think Charlie might have

done some bad things to you?

A. I don’t know.

Q. Did Charlie--do you remember if

Charlie ever touched you somehow that

you didn’t like?

A. I don’t know.

PPOPL

DPO PL PL PLS

Q. Okay.

TC: I don’t have any other questions.

DC: I don’t have any questions, sir.

MJ: Okay. Thank you very much.

Her very limited testimony, as the prosecutor predicted,

was ineffectual. Defense counsel did not cross-examine

Allison, and there was no inquiry from the trial judge.

Over continuing objection by the defense, the judge

reaffirmed his earlier ruling and admitted the tape into

evidence on the basis that Allison was "nonavailable to

provide this information."

Petitioner was convicted by a panel of officer and

enlisted members of all charges and specifications and

was sentenced to confinement for eight years, reduction

to the lowest enlisted pay grade, and a dishonorable

discharge. The taped interview was the only evidence

supporting the charge concerning Allison.

On review, the Navy-Marine Corps Court of

Military Review found confrontation satisfied and

affirmed Petitioner’s conviction. The Navy-Marine

Court noted that the trial judge anaiyzed the

circumstances of the tape recording pursuant to this

Court’s decision in Idaho v. Wright, 497 U.S. 805

(1990), adopted the trial judge’s findings, and found that

he did not abuse his discretion in admitting the tape.

(Pet. App. at 29a)

The Court of Appeals of the Armed Forces

reached the same result, but did so by a different

analysis. Relying on United States v. Owens, 484 U.S.

554 (1989), the court held that Petitioner’s right to

confrontation was satisfied because Allison was present

at trial and subject to cross-examination. (Pet. App. at

8a). C.A.A.F. found that the defense simply declined to

cross-examine Allison for tactical reasons. (Pet. App. at

6

8a, 10a). The court then reviewed the judge’s findings

concerning the reliability of the statement, under a

purely evidentiary standard, and determined that he did

not abuse his discretion in admitting the tape. (Pet. App.

at 9a).

REASONS FOR GRANTING THE WRIT

THE RIGHT TO CONFRONTATION

IS NOT SATISFIED WHEN A

RESIDUAL HEARSAY STATEMENT

IS ADMITTED AND THE

DECLARANT CANNOT BE CROSS-

EXAMINED ABOUT THE MAKING

OF THE STATEMENT OR THE

UNDERLYING EVENT.

Petitioner asks this Court to answer the "question

lurking” in the case of California v. Green, 399 U.S. 149

(1970), and acknowledged again in Delaware v.

Fensterer, 474 U.S. 15, 21 (1985). That is: whether the

Confrontation Clause is satisfied for the admission of a

hearsay statement in the case of a witness who is

physically present at trial, but who cannot be effectively

cross-examined because she has no present knowledge of

the ultimate event in the statement? Green, 399 U.S. at

169 n.18; Fensterer, 474 U.S. at 21. Answering this

question will resolve a growing split of opinion among

the federal circuits over the interpretation of this Court’s

precedence concerning the interplay of the hearsay rules

and the Confrontation Clause.

In recent years, C.A.A.F. has consistently held

that the right to confrontation on a hearsay statement is

satisfied as long as the declarant is physically present.

United States v. McGrath, 39 M.J. 158, 163 (C.M.A.

7

1994) (confrontation satisfied where witness was present

but refused to testify), cert. denied, 115 S. Ct. 420

(1994); United States v. Martindale, 40 M.J. 348

(C.M.A. 1994) (confrontation satisfied by declarant’s

presence despite his claim of memory loss of the

underlying event and that his hearsay declaration was a

lie), cert. denied, 115 S. Ct. 907 (1995).

This same rational has been applied by the courts in

the Third and Fourth Circuits, holding that confrontation

is satisfied where the witness claims memory loss of the

underlying event at the time of trial. United States ex

rel. Thomas v. Cuyler, 548 F.2d 460 (3rd Cir. 1977);

United States v. Payne, 492 F.2d 449 (4th Cir. 1973),

cert. denied, 419 U.S. 876 (1974).

The U.S. Court of Appeals for the Eighth Circuit,

on the other hand, has recognized that there are some

cases where the mere presence of a witness does not

satisfy the Confrontation Clause, particularly where the

witness is too young or too frightened to be subject to a

thorough cross-examination. United States v. Spotted

War Bonnet, 933 F.2d 1471, 1474 (8th Cir. 1991), cert.

denied, 502 U.S. 1101 (1992); Dolny v. Erickson, 32

F.3d 381, 386 (8th Cir. 1994), cert. denied, 115 S. Ct.

907 (1995); Johnson v. Lockhart, 71 F.3d 319, 321 (8th

Cir. 1995).

The U.S. Court of Appeals for the Seventh

Circuit has decided cases similar to Petitioner’s, but has

yet to reach the question concerning a complete memory

loss and the application of the Confrontation Clause.

United States v. Baker, 722 F.2d 343, 349 n.13 (7th Cir.

1984) ("We express no view on whether the [witness’s]

prior statement would have been admissible had her

memory lapse been more complete or more believable."),

cert. denied, 465 U.S. 1037 (1984). The Seventh Circuit

has looked to the veracity of the memory loss in

8

determining whether confrontation has been satisfied.

Vogel v. Percy, 691 F.2d 843, 846 (7th Cir. 1982)

(witness remembered all relevant events leading up to,

but not including robbery, court found memory lapse "so

selective as to be incredible"); see also United States v.

DiCaro, 772 F.2d 1314, 1327 (7th Cir. 1985)

("Compared to the witness’s testimony in Baker and

Vogel, [this witness’s] memory lapse at trial concerning

both the making and the subject matter of his prior

statements was clearly more complete, although probably

not more believable."), cert. denied, 475 U.S. 1081

(1986).

This petition presents the situation described in

Spotted War Bonnet and its progeny: the admission of a

residual hearsay statement of a child witness who,

because she is too young or possibly too frightened,

claims she neither remembers making the statement nor

the underlying events, so that any cross-examination

would be a futile gesture. Petitioner seeks resolution of

this developing split in the circuits over this substantial

issue concerning confrontation of a witness’s out-of-

court statement for which the witness has no memory.

This issue is certain to recur, particularly in child sexual

abuse cases.

"The Confrontation Clause provides two types of

protection for a criminal defendant: the right physically

to face those who testify against him, and the right to

conduct cross-examination." Pennsylvania v. Ritchie,

480 U.S. 39, 51 (1987) (plurality opinion). The

Confrontation Clause is satisfied for the purposes of

admitting hearsay statements against a criminal defendant

when the declarant is present at trial and subject to

cross-examination. California v. Green, 399 U.S. 149

(1970). This is true even if the witness claims he cannot

remember the underlying event, so /ong as the witness

9

concedes making the statement and may be asked to

defend or otherwise explain any inconsistency between

the prior statement and the present version. /d. at 164.

"[E]ffective confrontation of [a hearsay declarant is]

possible only if [the declarant first] affirm[s] the

statement as his." Douglas v. United States, 380 US.

414, 420 (1965).

The lower court erroneously relied upon this

Court’s precedent in Owens when it found Petitioner’s

right to confrontation satisfied by the fact that Allison

was present at trial. (Pet App. at 8a). In so doing, the

lower court ignored the Confrontation Clause’s guarantee

of a meaningful opportunity for cross-examination and

relied upon the fact that the Clause does not guarantee

an effective cross-examination. (Pet. App. at 8a). Faced

with the "lurking question" from Green, the lower court

misconstrued this Court’s opinion in Owens when it

decided that Petitioner’s right to confrontation was

satisfied.

Although the question in Green was "squarely

presented” in Owens, this Court answered only part of

the issue. Owens, 484 U.S. at 559. Writing for the

majority in Owens, Justice Scalia Stated, "We agree with

the answer suggested 18 years ago by Justice Harlan.

‘The Confrontation Clause guarantees only an

opportunity for effective cross-examination, not cross-

examination that is effective in whatever way, and to

whatever extent, the defense may wish." /d., citing

Kentucky v. Stincer, 484 U.S. 730, 739 (1987), quoting

Fensterer, 474 U.S. at 20 (emphasis added in Owens). It

was this specific language that the lower court relied

upon in deciding Petitioner’s case. (Pet. App. at 8a).

As previously mentioned, Owens answered only

part of the question. Owens involved a victim of a

violent assault who could not identify his assailant at

10

trial. As a result, the government entered into evidence

the victim’s out-of-court statement where he did identify

Owens as his assailant. While the victim could not

recall his assailant at trial, he did testify that he "clearly

remembered" identifying Owens as his assailant during

an interview with a police officer while he was in the

hospital. Jd. at 556. This Court found no confrontation

problem with the admission of the unsworn statement

because even though he could not remember the

underlying event, the witness remembered making the

statement and was subject to cross-examination about it.

Despite the witness’s memory loss, Owens still had the

opportunity to cross-examine him and bring out matters

concerning bias, lack of care and attentiveness, poor

eyesight and especially poor memory, which this Court

observed is often the desired result of a thorough and

effective cross-examination. /d. at 559.

Owens, therefore, resolved the issue concerning

the admissibility of unsworn out-of-court statements. It

did not resolve the deeper question described in Green

and mentioned again in Fensterer. That is, whether the

Confrontation Clause is violated when feigned or actual

lapse of memory concerning the out-of-court statement

and the underlying event is so pervasive that any cross-

examination is meaningless.

Petitioner had no meaningful opportunity to cross-

examine Allison on the out-of-court-statement. Based

upon her complete lack of memory as to making the

statement or the underlying event, any attempt to cross-

examine Allison would have been futile. Allison’s

complete lack of memory denied Petitioner an

opportunity for cross examination on the out-of-court

statement. It would seem axiomatic that petitioner could

not cross-examine that which does not exist.

"The primary object of the constitutional

1]

provision in question was to prevent depositions or ex

parte affidavits . . . being used against a prisoner in lieu

of a personal examination and cross examination of the

witness ...." Mattox v. United States, 156 U.S. 237,

242 (1894). Particularly, this Court has recognized that

such a face-to-face confrontation in the form of cross-

examination is the "greatest legal engine ever invented

for the discovery of truth." /d. at 158, quoting 5

Wigmore § 1367. Central to the protection afforded by

confrontation is the witness’s ability to repeat his story

or repudiate any conflicting prior stories before the trier

of fact. Jd. at 157. Only under these circumstances is

there an opportunity for real and meaningful cross-

examination. This is not true when the witness is too

young, or too frightened, or disclaims making the

statement or the underlying event. In these situations.

cross-examination is a hollow gesture because there is no

"statement" or "event" in dispute. The result of the

lower court’s decision is that as long as a declarant is

physically present within the courthouse, confrontation

will be satisfied. The lower court’s precedent does not

prevent trial by ex parte affidavits, but instead

encourages such a practice.

Where the right to question a witness is restricted

or virtually eliminated by constitutional limitations or

evidentiary rules, this Court has not hesitated to find a

violation of the right to confrontation. Douglas v.

Alabama, 380 U.S. 415 (1965). In Douglas, this Court

found such a violation when the state introduced the

alleged confession of the defendant’s supposed

accomplice, and the accomplice refused to testify on

self-incrimination grounds. F inding that the evidence

tended to show that the accomplice only made the

statement, and that he could not be cross-examined to

determine the truth of the statement itself, this Court

12

held the admission of the confession to be in violation of

the defendant’s right to confrontation. Jd. at 419-420.

See also Bruton v. United States, 391 U.S. 123 (1968);

Mayes v. Sowders, 621 F.2d 850 (6th Cir. 1980), cert.

denied, 449 U.S. 922 (1980); Barksdale v. State, 453

S.E.2d 2 (1995).

Where Allison had no memory of the out-of-court

statement or the underlying event, she could not be

cross-examined on a statement imputed to her yet not

admitted by her. Even more important, cross-

examination of Allison or the detective would have done

nothing to demonstrate the truth of the hearsay

statement.

CONCLUSION

Cross-examination is the means by which an

accused can test the veracity of any witness, regardless

of whether the testimony is an in-court or out-of-court

statement. The Confrontation Clause of the Sixth

Amendment guarantees that every accused has the right

to avail himself of this valuable tool. Currently, the

military and at least two other circuits have removed this

right from the accused and have returned to the practice

that the Confrontation Clause was designed to prevent:

trial by ex parte affidavits. The result of the lower

court’s precedent is one of form over substance.

Specifically, if the government has a witness physically

present within the courthouse, then confrontation has

been satisfied, notwithstanding the fact that the witness

has no memory of ever making the out-of-court

statement or the underlying facts the statement allegedly

describes.

The better rule is the one enunciated by this Court

in Douglas where confrontation is not satisfied when the

13

witness cannot be questioned about the previous

statement or the underlying event. This Court’s

precedent in Douglas guarantees an accused the means to

test the veracity of statements which the government is

offering against him. This Court should address this

substantial issue as to whether an accused is provided

confrontation on a statement when the witness has no

memory of the statement or the underlying event.

Respectfully submitted,

JOHN FRANCIS HAVRANEK

Major, U.S. Marine Corps

Counsel of Record

STEPHEN DEANE CHACE

Major, U.S. Marine Corps

Navy-Marine Corps Appellate

Defense Division

Washington Navy Yard. Building 11]

Washington, D.C. 20374-1111]

(202) 433-4161

December 1996

APPENDICES

APPENDIX A

U.S. COURT OF APPEALS FOR THE ARMED

FORCES

No. 94-1430

CMR 93 0109

United States, Appellee

V.

Lester C. CASTEEL, Aviation Structural Mechanic

(Hydraulics) First Class

U.S. Navy, Appellant

Argued Oct. 31, 1995

Decided Sep. 30, 1996

For Appellant: Captain John F. Havranek, USMC

(argued); Lieutenant Paul J. Ferdenzi, JAGC, USNR (on

brief).

For Appellee: Lieutenant John R. Livingston, Jr.,

JAGC, USN (argued); Commander D.H. Myers, JAGC,

USN (on brief); Colonel J. Composto, USMC, Commander

S.A. Stallings, JAGC, USN, Lieutenant Commander David

B. Auclair, JAGC, USN.

Military Judge: Phillip F. Roberts

(la)

2a

Opinion of the Court

COX, Chief Judge:

A general court-martial comprised of officer and

enlisted members at Naval Station Treasure Island, San

Francisco, California, convicted appellant, contrary to his

pleas, of sodomy on a child under the age of 16 (2

specifications); committing indecent acts upon the body of

a child under the age of 16 (3 specifications); taking

indecent liberties with a child under the age of 16; and

wrongfully endeavoring to impede an investigation by

communicating a threat, in violation of Articles 125 and

134, Uniform Code of Military Justice, 10 USC §§ 925

and 934, respectively. The members sentenced appellant

to a dishonorable discharge, confinement for 8 years, and

reduction to E-!. The convening authority approved the

sentence, and the Court of Military Review’ affirmed the

findings and sentence in an unpublished opinion.

We grant review of these issues:

I

WHETHER ADMISSION OF ... [AG’S] ~

HEARSAY STATEMENT VIOLATED

APPELLANT'S SIXTH AMENDMENT

PROTECTION UNDER fH

CONFRONTATION CLAUSE WHEN THE

STATEMENT LACKED ADEQUATE

INDICIA OF RELIABILITY.

' See 41 MJ 213, 229 n.*/ (1994).

3a

II

WHETHER APPELLANT WAS DENIED

HIS SIXTH AMENDMENT RIGHT TO

CONFRONT THE AVAILABLE

DECLARANT OF A_ RESIDUAL

HEARSAY STATEMENT WHEN HE

WAS NOT AFFORDED AN

OPPORTUNITY TO FULLY AND

EFFECTIVELY CROSS-EXAMINE THE

DECLARANT AFTER THE RESIDUAL

HEARSAY STATEMENT WAS

INTRODUCED INTO EVIDENCE.

Ill

WHETHER THE NAVY-MARINE CORPS

COURT OF CRIMINAL APPEALS

ERRED, AS A MATTER OF LAW, WHEN

IT AFFIRMED THE MILITARY JUDGE’S

RULING TO ALLOW PRIOR

MISCONDUCT INTO EVIDENCE UNDER

MILITARY RULE OF EVIDENCE 404(b)

ON THE BASIS THAT APPELLANT

PLACED THE ELEMENT OF INTENT IN

ISSUE WHEN DEFENSE COUNSEL

CROSS-EXAMINED THE VICTIM

ABOUT INNOCENT ACTS OF CONTACT

BETWEEN THE VICTIM AND

APPELLANT.

Finding no error in the granted issues, we affirm.

ISSUE I

4a

The first issue concerns the propriety of the receipt

into evidence of a prior out-of-court statement of an

alleged victim. Specification 4 of Charge IV alleged that

appellant "did, at or near Virginia Beach, Virginia, on

divers occasions between January 1989 and January 1990,

commit indecent acts upon the body of ... [AG], a female

under sixteen years of age, not the wife of the said ...

[appellant], by touching and penetrating the vagina of the

said ... [AG] with his hands and fingers, with intent to

arouse and gratify the sexual desires of the said ...

[appellant].". AG was the daughter of a woman with whom

appellant was living at the time. Born on January 12,

1986, AG was approximately 3-4 years old at the time of

the alleged offenses.

At the court-martial, AG was called as a prosecution

witness. By the time of trial, June 1992, she was

approximately 6 1/2 years old. AG testified via closed

circuit television from a remote location. This decision

was made by the military judge, based primarily upon the

opinion of a child sexual abuse therapist that AG was

extremely fearful of appellant and that she would probably

suffer significant harm by being confronted by appellant.

The correctness of the judge’s determination is not here in

issue.

On direct examination of AG, after establishing her

ability to distinguish between truth and falsehood and her

understanding of the need to testify truthfully, trial counsel

questioned her as follows:

Q. And did you use to live in Porterville

[California]?

A. Yeah.

Sa

Q. And where did you live before that?

A. Virginia.

Q. And do you remember the first time Sally

[Detective Sally Blagg, see infra] came to see you?

A. Yeah.

Q. Was that--is that a long time ago?

A. Yeah.

Q. Have you ever told a lie to Sally?

A. (No audible response.)

Q. Okay. When--when you talked to Sally with

the tape recorder, did you tell her the truth?

A. The things that I told her was, I think----

Q. Do you thing what you told her was the truth?

A. I don’t know. I don’t remember what I told

her.

Q. Okay. Okay. How do you... feel about-do you

remember Charlie [the familial name for appellant, Lester

Charles Casteel]?

(No audible response.)

How do you feel about Charlie?

Still mad at him.

Why?

Because he did mean things to me.

What--what kind of mean things did he do?

Spanked us.

Did he do other things too?

(No audible response.)

. Did he do other bad things to children other

than spank them?

A. I don’t know.

POPO PO PH >

2)

Q. Did--do you think Charlie might have done

some bad things to you?

A. I don’t know. z

Q. Did Charlie--do you remember if Charlie ever

6a

touched you somehow that you didn’t like?

A. I don’t know.

Q. Okay.

TC: I don’t have any other questions.

DC: I don’t have any questions, sir.

MJ: Okay. Thank you very much.

(The witness was excused and withdrew from the

closed circuit T.V. room.)

This concluded AG’s testimony at the court-martial.

Having anticipated AG’s inability or unwillingness

to testify, based on information provided by the therapist

and recent attempts to interview AG, trial counsel moved

in limine to introduce a statement made by her much

nearer to the time of the alleged events. This prior

statement occurred not long after the multiple allegations

against appellant came to light, when AG was interviewed

in July 1991 by Tulare County, California, Sheriff's

Detective Sally Blagg. A portion of that interview was

audio-taped, and thereon AG described in considerable

detail appellant’s alleged sexual abuse of her.

The Government moved admission of this statement

under Mil.R.Evid. 803(24) or 804(b)(5), Manual for

Courts-Martial, United States (1995 ed.), residual hearsay.

Mil.R.Evid. 804(b)(5) provides, in pertinent part:

(5) Other exceptions. The

following are not excluded by

the hearsay rule if the

declarant is unavailable as a

witness.

Ta

* * *

A statement not specifically covered

by any of the foregoing exceptions but

having equivalent circumstantial guarantees

of trustworthiness, if the military judge

determines that (A) the statement is offered

as evidence of a material fact; (B) the

statement is more probative of the point for

which it is offered than any other evidence

which the proponent can procure through

reasonable efforts; and (C) the general

purposes of these rules and the interest of

justice will best be served by admission of

the statement into evidence.

Mil.R.Evid. 803(24) is identical, except that Mil.R.Evid.

803 begins. "The following are not excluded by the

hearsay rule, even though the declarant is available as a

witness."

In limine, by agreement of the parties and based on

their consistent proffers of fact and on their arguments of

law, the military judge ruled provisionally on admission of

the hearsay evidence. The focus of the parties and the

judge was on the circumstances surrounding the taking of

the statement, without reference to corroborating

circumstances. At the conclusion of the hearing on the

motion, the military judge explained in detail his

consideration and balancing of the multiple factors leading

to his conclusion that AG’s tape-recorded statement to the

law enforcement officer met the threshold requirements of

the residual hearsay rules. See Appendix.

After AG’s abbreviated testimony, but prior to

8a

introducing the tape in evidence, the Government called

Detective Blagg as a witness. She described the

circumstances surrounding the taking of the statement, and

was subjected to defense cross-examination on the point.’

We hold that the granted issue is without merit--that

appellant’s confrontation rights were not violated due to

the Government’s production of AG as a witness and the

defense’s declination of cross-examination. United States

v. Ureta, 44 MJ 290 (1996); United States v. Martindale,

40 MJ 348, 349 (CMA 1994): United States v. McGrath,

39 MJ 158, 163 (CMA 1994). As the Supreme Court has

consistently noted, "[T]he Confrontation Clause guarantees

only ‘an opportunity for effective cross-examination, not

cross-examination that is effective in whatever way, and to

whatever extent, the defense might wish." United States v.

Owens, 484 U.S. 554, 559 (1988), quoting Kentucky v.

Stincer, 482 U.S. 730, 739 (1987), quoting Delaware v.

Fensterer, 474 U.S. 15, 20 (1985); Delaware v. Van

Arsdall, 475 U.S. 673, 679 (1986); Ohio v. Roberts, 448

-

The defense was permitted, without prosecution objection, to

show the members a video-taped interview of AG that was made

approximately a year after the Government’s audio tape. At defense

request, the interview was conducted by the same person who had

interviewed AG a year earlier, Detective Blagg. The defense argued that

the video-tape demonstrated the leading and suggestive nature of Blagg’s

questioning technique. Though not objecting to the playing of the tape,

trial counsel objected to that characterization because it was the defense

that provided Blagg the questions. Defense counsel countered that the

ground rules were that the detective was to ask the questions provided and

then was permitted to ask her own questions. In defense counsel’s view,

the leading and suggestiveness occurred when the detective was asking

her own questions. Spin aside, the video-tape was played to the members

by defense counsel, after he laid a foundation for them with Detective

Blagg. Consistent with her trial testimony, AG--in the main--denied or

evaded any questions relating to any sexual misconduct involving

appellant. (But see R. 243-46.)

9a

U.S. 56, 73 n. 12 (1980).

Regarding the military judge’s purely evidentiary

decision--not here in issue--to receive the residual hearsay

statement, our standard of review is abuse of discretion.

United States v. Pollard, 38 MJ 41, 49 (CMA 1993); see

generally S. Childress and M. Davis, Federal Standards of

Review § 11.02 at 11-5 to 11-9 (2d ed. 1992). We are

satisfied in this case that the military judge was within his

discretion in balancing the reliability factors inherent in the

circumstances of this statement. In particular, we are

persuaded by the following factors cited by the judge as

indicating reliability: First, the victim’s fear of appellant

and reluctance to say anything bad about him was akin to

a declaration against interest, because the victim perceived

that her situation would be made worse by telling the

police what appellant did. Second, the questioning was not

suggestive. Third, the victim appeared not to be rehearsed,

but to be speaking frdm memory. Fourth (and most

persuasive), the victim demonstrated that she was speaking

from memory, rather than trying to please the interrogator,

because she contradicted the interrogator on several key

occasions. In addition, although statements given ex parte

to law enforcement officials must always be viewed with

suspicion, United States v. Pollard, supra at 49; United

States v. Barror, 23 MJ 370, 372 (CMA 1987), we are

likewise satisfied here that the military judge adequately

assessed that factor.

ISSUE Il

In the second issue, appellant contends that he was

not afforded an opportunity to be confronted by AG after

her prior, audio-taped statement was played before the

court members. Appellant’s argument is that he had no

10a

ability to cross-examine AG about the statement when she

was on the stand, since the statement was not received in

evidence until after AG was excused. According to the

defense, this put appellant in the awkward position of

either having to introduce the hearsay statement itself in

order to cross-examine AG about it "or he would have had

to risk inflaming the members by re-calling the child as a

witness in order to perform a full and effective cross-

examination." Final Brief at 8.

We deem this issue to be without merit. There is

no indication in this record that appellant had ever

requested an opportunity to cross-examine AG about the

prior statement or that he ever was refused such an

opportunity. If the mere fact of recalling the victim might

have had the effect of inflaming the passions of the court-

members against appellant, the defense might have asked

the military judge to recall her, but they did not. Frankly,

we doubt that merely recalling the victim would have had

an adverse effect on appellant, although it is conceivable

that aggressive, abrasive, or insensitive cross-examination

might have. Appellant could not complain, however, if the

very exercise of his right of cross-examination damaged

him--that is a risk he must decide whether to take.

Under the circumstances here, however, it is quite

likely that the defense concluded they had nothing to gain

by cross-examining the victim about the prior statement.

Since she had already denied knowledge and memory of

not only the events, but even her prior statement, the

defense may not have wanted to risk having her remember

them, reiterating the statement to the members in the

process. In any event, it is clear that cross-examination

was available to the defense at all appropriate times.

lla

ISSUE II

The final issue relates to an instance of appellant’s

uncharged misconduct which was received in evidence

over defense objection. More precisely, however, the

question advanced by appellant pertains to the correctness

of the Court of Military Review’s decision, ostensibly, that

the evidence was admissible on the basis that appellant

placed the element of intent in issue when defense counsel

cross-examined the victim [TC] about innocent acts of

contact between the victim and appellant. Unpub.op. at 4.

Previous to the court-martial, appellant, before the

Tulare County, California, Municipal Court, pleaded no

contest to, and was found guilty of, a misdemeanor sexual

battery on KG, the then 11-year-old daughter of appellant’s

sometimes girlfriend (and also a aforementioned AG’s

older sister). That offence included an element of touching

an intimate part of the victim, against her will, for the

specific purpose of sexual arousal, sexuai gratification, or

sexual abuse.

Specifically, the Government had proffered as

follows:

In January of 1991 [KG], the eleven year

old daughter of the accused’s girlfriend told

sheriff's department personnel that the

accused had fondled her breast and "french

kissed” her.

[KG] will testify that she was listening to a

song about a "cherry kiss" on the radio. The

accused told her it was a dirty song.

Although she did not ask what a "cherry

12a

kiss" was, he picked her up, carried her into

the bedroom, and gave her a French kiss,

inserting his tongue into her mouth halfway,

on the bed.

The Government offered this evidence under

Mil.R.Evid. 404(b) as proof of appellant’s "motive" and his

"intent to arouse and gratify his sexual desires," the latter

being an element of several of the offenses alleged herein

under Article 134.

Mil.R.Evid. 404(b) provides:

Evidence of other crimes, wrongs, or

acts is not admissible to prove the character

of a person in order to show action in

conformity therewith. It may, however, be

admissible for other purposes, such as proof

of motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of

mistake or accident... .

Based upon the Government’s proffer, the military

judge ruled the evidence was admissible "for the purpose

of showing the intent [of] the accused." He reserved

judgment on whether it was admissible for other purposes.

In his opening statement, trial counsel described for

the members the uncharged misconduct evidence; then he

introduced it in evidence in his case-in-chief through the

testimony of KG and through appellant’s various

admissions of that conduct. It appears that trial counsel

never actually published to the court members the Tulare

County Court documentation of the conviction.

13a

Apparently, the judge ultimately enlarged his ruling,

because his limiting instructions on findings were not

confined to intent or to the Article 134 offenses.

Specifically, the instructions included:

Evidence of other You are advised that the

[uncharged misconduct] evidence may be

considered by you for the limited purpose of

its tendency, if any, to prove that the

accused intended to gratify his sexual desires

and of its tendency, if any, to prove the

motive of the accused being to satisfy his

own sexual desires.

(Emphasis added.)

The short answer to the granted issue is that the

court below did not err in affirming the military judge’s

ruling on the basis that appellant placed the element of

intent in issue because it does not appear that court based

its decision on appellant’s somehow placing intent in issue.

What that court stated regarding the uncharged misconduct

was as follows:

You are advised that the [United

States v. Reynolds, 29 MJ 105, 109 (C.M.A.

1989), we find the military judge did not

abuse his discretion in deciding to admit this

evidence for the purpose of establishing the

appellant's intent, particularly as to those

offenses charging indecent acts. [Citations

omitted.] As to the appellant’s contention

that he did not put his intent in issue by

merely disputing whether these events ever

occurred, we note that although the

l4a

appellant’s testimony and his defense

counsel’s argument on findings ... [were]

based on the assertion that the victims were

all lying, the defense did bring out other

information raising the possibility that the

appellant’s behavior with at least one of the

victims (IT) may have been innocent.

During the cross-examination of T, the

defense elicited testinony that the appellant

would rub Ben Gay on T’s legs when he (T)

would get a "Charlie horse." Record at 101.

The indecent acts charged in relation to T

were that the appellant "fondled the buttocks

and anus of. . . [T] with his hands with

intent to arouse and gratify the sexual

desires of the. . . [appellant]." Charge IV,

Specification 1.

Unpub.op. at 3-4 (emphasis added).

Whatever the import of the court’s "note," it seems

clear enough that the holding was that admission of the

prior conduct was within the permissible discretion of the

military judge on the issue of mens rea--which of course

the Government must prove beyond a reasonable doubt as

to each and every offense--and particularly with respect to

the specific intent elements of the three indecent act

offenses charged.

But even if fairness to the parties permitted us now

to change the granted issue and to resolve this case on the

propriety of the actual basis of the opinion below or to go

beyond even that and to consider the correctness of the

military judge’s underlying ruling, it would be a close

question as to whether the military judge or the Court of

lSa

Military Review abused their discretion. Certainly,

admissibility of prior sexual uncharged misconduct

evidence has been one of the more vexing areas of the law,

see E. Imwinkelried, Uncharged Misconduct Evidence §§

4:15-16 (1984)--so much so that, in any trial under the

rules of evidence now in effect, such prior acts are

purportedly admissible per se.’ See also What is a Plan?

Judicial Expansion of the Plan Theory of Military Rule of

Evidence 404(b) in Sexual Misconduct Cases, The Army

Lawyer 13 (Dept. of the Army Pamphlet 27-50-235, June

1992).

However, it is not necessary for us to resolve this

evidentiary tangle here, because even if we assume,

arguendo, that error occurred in the receipt of the

evidence, we are satisfied, on this record, that appellant

was not prejudiced by it. Art.59(a), UCMJ, 10 USC §

859(a). We note that the uncharged misconduct presented

Fed.R.Evid. 414(a) provides:

In a criminal case in which the defendant is

accused on an offense of child molestation, evidence of

the defendant’s commission of another offense or

offenses of child molestation is admissible, and may be

considered for it bearing on any matter to which it is

relevant.

Fed.R.Evid 414(c) defines a child as "a person below the age of

fourteen," and it defines child molestation broadly.

Fed.R.Evid. 414 became effective for the Federal Courts on July

9, 1995. See Pub.L.No. 103-322, § 320935(b)-(3), 108 Stat. 2137,

reprinted in 1994 US Code Cong.& Admin. News; and Historical Notes

to Fed.R.Evid. 413, Effective Dates, note following (e) Application, 28

USCA 225 (1996 Cumulative Annual Pocket Part). By operation of law

(Mil.R.Evid. 1102), Fed.R.Evid. 414 became part of the Military Rules

of Evidence on January 5, 1996.

loa

in this case was almost trivial in comparison to the serious

charges before the court-martial. Indeed, the court-martial

featured the testimony of appellant’s natural daughter, AC,

1 1-years-old at the time of trial, who described how, over

a period of time about 4 years earlier, appellant repeatedly

sodomized her and forced her to sodomize him. Further,

appellant’s natural son, TC, 9-years-old at the time of trial,

described graphically how appellant had crept into bed

with him in the night, pulled down his pants, and anally

sodomized him. TC also described multiple other sexual

assaults committed by his father. Nevertheless both AC

and TC testified that they missed their dad and wanted to

see him again.

Regarding DG and his sister, AG, both were

permitted to testify via closed circuit television due to the

extent of their fears of appellant and the damage that a

confrontation might cause them. DG, 9-years-old at the

time of trial, was the son of appellant’s sometime

girlfriend. He described multiple instances of appellant’s

fondling his genitalia and buttocks, as well as his

threatening him with being sent to a foster home if he told

his mother. AG’s limited testimony and her hearsay

statement are described in connection with Issue I.

In addition, Carlene Williams, a foster mother who

had custody of TC and AC for over a year before the

court-martial, testified about the bizarre, sexually-oriented

behavior of the children she had observed and about their

other difficulties, such as bed-wetting.

A psychologist, Dr. Scott Van De Putte, who

specialized in treating sexually abused boys, testified

various behavioral characteristics often exhibited by

sexually abused children, and in particular, he described

17a

the various unusual behaviors of TC, whom he was

treating. In addition, without defense objection, Dr. Van

De Putte related many of the statements against appellant

made by TC during treatment. See Mil.R.Evid. 803(4).

Shirley Paintz-Scott, a psychotherapist specializing

in child sexual abuse who was treating DG and AG,

testified about the damaged psychological condition of the

children, their various behavior manifestations, and their

relationship to characteristics frequently observed in

sexually abused children.

Finally, the parties stipulated that a Pediatric Nurse

Practitioner who had examined all four of the children

would testify, if called as a witness, that she found

"nonspecific irregularities might be caused by abuse, but

they might have other causes, and they neither prove nor

disprove sexual molestation.

The defense consisted of character testimony offered

by a series of co-workers, supervisors, and acquaintances,

as well as numerous documents evincing awards and

commendations for outstanding Naval service. In addition,

appellant testified and emphatically denied committing

sexual acts on his own children or those of his girlfriend.

His theory about why all the children lied about the sexual

misconduct was that he punished them so severely that

they wanted him out of the house. Falsely accusing him

of bestial sexual misconduct was their way of achieving

that goal. Appellant implied that it was other adults who

had abused the children, and he charged that the children

had been led and coerced "[{b]y the various people that

everybody has seen" into making these false allegations

against him.

18a

Picking up on that theme, defense counsel

announced to the military judge his theory of the case, as

follows:

{|KG] and the French kiss business

got Charlie out of the house. The kids liked

that. They thought of new things to get

Charlie out of the house and keep him out

of the house.

He had made the same point to the members during

opening argument.

Accordingly, in cross-examining each of the

children, defense counsel "always ask[{[ed] them the

question, ‘Did you know what happened to ...[KG]?° And

then ... [he] link[ed] that, ‘Have you talked to other

people?™" thus, the uncharged acts against AG fit right in

to the defense thesis that the children were making up the

accusations against appellant to get him out of their lives.

In sum, the granted issue is without merit in that it

is premised on a misstatement of the holding of the court

below. Further, even if we expand the granted issue to

include the general propriety of receipt of the uncharged-

misconduct evidence and assume that it was improperly

received, we cannot say on this record that appellant is

entitled to relief. Considering the general nature of the

uncharged misconduct evidence in comparison with the

charges and the evidence adduced thereon, and given the

limiting instructions as to its purpose provided by the

military judge and the defense theory of the case, we are

persuaded that receipt of the prior misconduct did not

"materially prejudice the substantial rights of the accused."

Art. 59(a). For these reasons, we hold that the granted

Se ee ee. ee en ee mm RTT ET

19a

issue is without merit.

The decision of the United States Navy-Marine

Corps Court of Military Review is affirmed.

Judges SULLIVAN, CRAWFORD, and GIERKE, and

Senior Judge EVERETT concur.

20a

APPENDIX

Military Judge's findings on Residual Hearsay Evidence.

MJ: Well, it is the opinion of the court that

what is to be addressed are specific

guarantees of trustworthiness, regardless of

whether you're talking about 803 or 804,

and the court, of course, needs to take into

consideration all the factors surrounding this

case including the age and ability of the

alleged victim. given the gravity of the

offense and the nature of the accusation, the

court would not with to allow the statement

into evidence unless satisfied that these

guarantees were present in this case.

The court feels it must look to

several circumstances in order to determine

that, one of which is the appearance of the

accused [sic]. The court isn’t so concerned

with availability or unavailability of the

person was a witness but rather the

possibility of getting other evidence on this

same point. Consequently, should the

accused [sic] simply now show up, the court

would be unable to determine what the

accused’s--| mean, the victim’s responses

would be to the various questions and really

unable to satisfactorily resolve the issue of

other available evidence. So, unavailability

plays a role, and the role is whether or not

this testimony of that is, from her; so this is

sort of a contingent point. It has been

represented that this witness will testify and

2la

what this witness will say. If that’s different

from the representations, then, of course, the

response may be different as well.

Also, there does appear to be some

fear of the accused established in the

statement by the victim. I agree with the

defense. Subsequent interviews that could

be used to speculate what level of fear might

be present at an earlier date are not

probative on this point, but, of course, the

interview itself is probative on this point,

and there are some places in here where this

particular witness does disclose apprehension

about the accused and the overall tenor of it

certainly demonstrates a reluctance to say

anything bad about the accused. There

could be various reasons for that. It doesn’t

automatically make the statement truthful.

It doesn’t automatically mean that the reason

is a fear of reprisal, but it could mean that,

and it’s a factor, and the court will consider

that factor together with other factors.

The court, therefore, finds that the

accused--alleged victim did, in fact, possess

a measure of apprehension about saying

anything detrimental about the accused.

The parties must also take into

account that the--that a five-year-old [at the

time of the declaration] does not operate the

same way as an older individual and that

while the accused’s constitutional rights

aren't going to be brushed to one side to

22a

accommodate that, nevertheless, the idea that

they can be perennial victims with no

recourse is not an accurate assessment either.

So, their special circumstances must be

given consideration within the contest of the

accused’s right to confrontation and other

matters.

So, in looking over the statement, it’s

the opinion of the court that the--it was not

conducted with a _ strong or heavy

prosecutorial bias. The responses tend to

suggest a recitation from memory as

opposed to responding to suggestions

contained within the questions. The are

several questions where the response

suggests that it came [from] memory. Let’s

see if we can pick a couple out as examples

here, and there were one or two instances in

here where even the questioner may have

posed, "Was it A or B?" the witness said,

"Neither. It was C," which I think tends to

run contrary to the idea that in eagerness to

please the interrogator she’s either taking the

suggestions posed by the interrogator or

picking one or two possibilities suggested.

There are many instances of this. So, the

court does not feel that the interrogation was

heavy-handed or titled in favor of the

prosecution.

Page 3, "Would Charlie touch you on

top of your clothes or under your clothes?"

"Under my clothes because I had on." "You

had on what? A swimsuit?" "Pajamas."

23a

This is one example answer that seems to

the court to be more of a response from

memory of events rather than following the

suggestion.

Concerning the truth or falsity of the

statement, it’s correct that there does not

appear to be a standard series of preliminary

questions designed to determine whether the

witness knew the difference between the

truth and no truth. However, that is not

going to render it defective per se. The

responses to the questions generally can be

weighed to determine whether or not it

appears that an individual responding to

them possesses the ability to distinguish

between truth and falsity, which, of course,

can then also be inferred from the ability of

the individual to reason and to understand an

respond to questions and the sensibility of it.

I’m not so sure that I’m prepared to

say that the level of vagueness is a guarantee

of authenticity of--but I would note that it

does not appear to have a rehearsed sound,

bearing in mind that if these events did not

occur, then this particular victim would be

lying in all respects, and these responses

would then have to be viewed as the product

of a rehearsal or deliberate effort to falsify.

The defense has indicated that instead

of being motivate to be truthful, the victim

was in fear of the accused. If it existed, it

would be a motive to lie as a means of

24a

removing herself from the proximity of the

accused, which the government said that had

already taken place. That’s a possibility, I

suppose. How likely it would be under all

the circumstances is certainly a weight

question, and one must consider the

likelihood and the ability of one that age to

generate this particular type of tale with or

without assistance to do that; but with regard

to that, the court does feel that there is an

element of fear of displeasing the accused,

and, therefore, statements and information

which seem to this witness to be likely to

displease the accused are hard to give, and I

feel this comes through in the statement.

There is no particular thing. I think

everything has to be taken together, and in

this particular case, given the age of the

accused [sic], the feelings of apprehension

and fear--I’m sorry; I keep saying "the

accused" when I mean "the alleged victim"--

and the fear of the accused, together with

the nature of the examination, it not being,

in the court’s opinion, tainted by heavy

prosecutorial bias and there being contained

within responses which tend to suggest that

the responses were given more from

memory, the court feels that this would be

in some respects akin to admissions being

given against the interest of the person being

questioned, which tends, in other areas of

hearsay, to satisfy the requirement for some

type of guarantee. At her age and with this

relationship and with the remarks given, the

25a

types of questions being asked and responses

given, it is the opinion [sic] that the

evidence that she gave that is adverse to the

accused was given reluctantly with a

measure of fear, but this is a specialized

case. This deals with her age and her

circumstances and her relationship to this

accused. The court wants to be very careful

and no try to suggest that first of all, all

children are truthful per se or that

accusations, because of harm to the person

accused, must necessarily be truthful. But

the court feels, balancing all the facts in this

case, that it does rise to that level; and,

therefore, the court will admit it. It is

subject, however, to the appearance of the

alleged victim and her testifying pretty much

as represented. The therapist, and her

Statement, as noted earlier, it would not be

considered for these purposes, it being given

subsequent.

So, the government’s motion to allow this evidence

in as hearsay is granted, or rather, I should say the defense

objection to the evidence as being inadmissible is denied

or overruled.

26a

APPENDIX-B

IN THE UNITED STATES NAVY-MARINE CORPS

COURT OF MILITARY REVIEW

ALBERT A. REED JAMES E. ORR

WILLIAM A. DeCICCO

UNITED STATES

V.

Lester C. Casteel, 491 60 2561

Aviation Structural Mechanic

Hydraulics First Class (E-6), U.S. Naval Reserve

NMCM 93 00109 Decided 31 March 1994

Sentence adjudged 1 July 1992. Military Judge: Philip F.

Roberts. Review pursuant to Article 66(c), UCMSJ, of

General Court-Martial convened by Commander, Naval

Base San Francisco, San Francisco, CA 94130-5018.

LT FRANKLIN J. FOIL, JAGC, USNR, Appellate Defense

Counsel

LT SCOTT A. BROWNE, JAGC, USNR, Appellate

Government Counsel

ORR, Senior Judge:

Contrary to his pleas, the appellant was convicted

by a panel of officer and enlisted members of committing

sodomy with his son and daughter, of indecent acts with

his son and two other children who were living in his

27a

house at the time, by taking indecent liberties with his

daughter, and trying to impede an investigation by

communicating a threat to one of the other children in

violation, respectively, of Articles 125 and 134, Uniform

Code of Military Justice (UCMJ), 10 U.S.C. §§ 925, 934.

The panel sentenced the appellant to confinement for 8

years, reduction to pay grade E-1, and a dishonorable

discharge. The convening authority approved the sentence

as adjudged.

The appellant’s criminal behavior with these

children, although not continuous with each child, spanned

a period of over 3 years, beginning in January 1988 and

continuing through February 1991. At the time of trial,

approximately 17 months later in June-July 1992, his

daughter was 11 years of age, his son ("T") was 9, and the

other two children, a boy ("D") and a girl ("AL"), were 7

and 6 years of age, respectively.

Before this Court, the appellant has raised eight

assignments of error.' The first of these protests the use

' |. THE MILITARY JUDGE ERRED WHEN HE ALLOWED

THE PRIOR STATEMENT OF .. . [AL] INTO EVIDENCE UNDER

THE RESIDUAL HEARSAY RULE.

ll. THE MILITARY JUDGE ERRED WHEN HE ALLOWED

EVIDENCE OF THE "FRENCH KISS" INCIDENT INTO EVIDENCE

IN VIOLATION OF MIL. R. EVID. 404(b).

Ill. THE MILITARY JUDGE ERRED WHEN HE DENIED

DEFENSE COUNSEL’S CHALLENGE FOR CAUSE AGAINST CHIEF

MARLER.

IV. APPELLANT'S RECORD OF TRIAL CONTAINS A

SUBSTANTIAL OMISSION WHICH MAKES IT INCOMPLETE,

NONVERBATIM, AND INSUFFICIENT FOR THOROUGH

28a

of an audio tape recording of the youngest child, AL, being

interviewed by a female detective with the local sheriff's

office approximately a year before trial. Record at 211-19.

The military judge permitted the playing of the audio tape

under Mil. R. Evid. 803(24) and 804(b)(5) after AL

testified that she did not know if she remembered whether

the appellant had done "other bad things to her" other than

spankings and she did not remember what she had told the

female detective. Record at 169-70. Based on this

testimony, the judge found that AL was essentially

unavailable. Record at 205.

The military judge analyzed the making of the audio

tape recording for the "particularized guarantees of

trustworthiness” required by Idaho v. Wright, 497 U.S. 805

(1990), for the acceptance of evidence under the residual

hearsay rule, and concluded: (1) that the interview was not

APPELLATE REVIEW.

V. THE MILITARY JUDGE ERRED WHEN HE

ALLOWED THE GOVERNMENT TO AMEND CHARGE l,

SPECIFICATION 2 AND CHARGE II, SPECIFICATION | DURING

TRIAL, SINCE THE AMENDMENTS WERE NOT MINOR CHANGES.

[CITATIONS AND FOOTNOTE OMITTED.]

VI. THE GOVERNMENT FAILED TO PROVE BEYOND

A REASONABLE DOUBT THAT APPELLANT WAS GUILTY OF

THESE-OFFENSES. [FOOTNOTE OMITTED.]

Vil. THE COURT-MARTIAL LACKED JURISDICTION

BECAUSE THE MILITARY JUDGE WAS NOT APPOINTED TO A

FIXED TERM OF OFFICE. [CITATION OMITTED.]

Vill. THE COURT-MARTIAL LACKED JURISDICTION

BECAUSE THE MILITARY JUDGE WAS DESIGNATED _IN

VIOLATION OF THE APPOINTMENTS CLAUSE OF THE

CONSTITUTION. [CITATION OMITTED.]

29a

conducted with a strong or heavy prosecutorial bias; (2)

that AL’s recorded responses suggested a recitation from

memory as opposed to responses to suggestions contained

in the questions; (3) that although there was no standard

series of preliminary questions to establish whether AL

knew the difference between telling the truth and telling a

lie, it could be inferred frem AL’s expressions during the

interview and her ability to reason, understand, and

respond that she understood the distinction; (4) that AL’s

responses did not indicate that the interview was rehearsed:

and, (5) that it was also apparent that AL did not want to

displease the appellant and information she provided, that

she perceived to be likely to displease the appellant, was

difficult for her to disclose which, given her age and her

relationship to the appellant, made the information similar

to admissions against AL’s own interests. Record at 18-

ai.

Based upon our own review, we adopt the military

judge’s findings as our own and conclude that the judge

did not abuse his discretion in admitting AL’s statements

in the audio recording as residual hearsay. See United

States v. Pollard, 38 M.J. 41 (C.M.A. 1993).

IT.

In his second assignment of error, the appellant

contends that his no-contest plea to and subsequent

conviction for sexual battery for "french kissing" D’s and

AL’s 11-year-old sister by the Tulare County Municipal

Court of the State of California should not have been

admitted because the element of the appellant’s intent was

never in controversy in the offenses before us, that the

"french kiss" episode was a different kind of act with a

different kind of victim from the offenses charged, and that

30a

the prejudicial effect of such evidence greater outweighed

its probative value. The military judge found the evidence

of the earlier conviction to be admissible for proving the

appellant’s intent to arouse, appeal to, or gratify the lust,

passions, or sexual desires of the accused, the victim, or

both, which is an essential element of the indecent acts

offenses charged against the appellant. Manual for Courts-

Martial, United States, 1984 (M.C.M.), Part IV, 4

87b(1)(d); record at 42. The judge reached this conclusion

because the conviction for sexual battery also required

proof of a similar intent or purpose. Cal. Penal Code §

243.4(d); Prosecution Exhibits 2, 3. In addition to the

conviction, the victim of the incident was permitted to

testify about it, record at 262-63, and a Naval Investigative

Service agent was allowed to testify that during an

interview of the appellant prior to the state hearing on the

offense that he adinitted he "french kissed" the 11 year-old

girl, record at 269.

Applying the criteria used by the U.S. Court of

Military Appeals in United States v. Reynolds, 29 M.J_ 105,

109 (C.M.A. 1989), we find the military judge did not

abuse his discretion in deciding to admit this evidence for

the purpose of establishing the appellant’s — intent,

particularly as to those offenses charging indecent acts.

See United States v. Bender, 33 M.J. 111 (C.M.A. 1991),

affg 30 M.J. 815 (A.C.M.R. 1990); United States v.

Orsburn, 31 M.J. 182 (c.M.A. 1990); cert. denied, 498 U.s.

1120 (1991); United States v. Cueller, 27 M.J. 50 (C.M.A.

1988), cert. denied, 493 U.s. 811 (1989); United States v.

Peterson, 20 M.J. 806 (N.M.C.M.R. 1985). As to the

appellant’s contention that he did not put his intent in issue

by merely disputing whether these events ever occurred,

we not that although the appellant’s testimony and his

defense counsel’s argument on findings was based on the

3la

assertion that the victims were all lying, the defense did

bring out other information raising the possibility that the

appellant’s behavior with at least one of the victims (T)

may have been innocent. During the cross-examination of

T, the defense elicited testimony that the appellant would

rub Ben Gay on T’s legs when he (T) would get a "Charlie

horse." Record at 101. The indecent acts charged in

relation to T were that the appellant "fondled the buttocks

and anus of . . . [T] with his hands with intent to arouse

and gratify the sexual desires of the . . . [appellant]."

Charge IV, Specification 1.

Il]

As to the appellant’s third assignment of error, the

prospective member in question told the court that his wife

had been raped in 1981 and his sister was raped when she

was 17 years old. He also stated that he would not hold

either of those crimes against the appellant, that he would

presume the appellant was innocent of the crimes charged

against him and that he thought he could be fair and

objective despite what had happened to his wife and sister.

The defense counsel asked no questions concerning this

revelation. Record at 64. We find no abuse of discretion

in the miliary judge’s refusal to sustain the defense

counsel’s challenge for cause, which was based solely on

the fact that the prospective member’s wife and sister had

been victims of sex-related offenses sometime in the past.

Not only were these offenses somewhat dissimilar from

those charged against the appellant, the prospective

member was not, himself, the victim. Cf United States v.

Smart, 21 M.J. 15 (C.M.A. 1985)(holding that challenge

for cause should have been sustained against member who

gave equivocal voir dire responses to questions concerning

lack of bias but was not per se disqualified for being

32a

victim of an offense similar to that charged). Although the

military judge did not conduct any further questioning of

the prospective member, we conclude that his answers

were unequivocal and did not manifest any cause to

disbelieve his assertion that the offenses perpetrated against

his wife and sister would not influence him. United States

v. Reichardt, 28 M.J. 113, 116 (C.M.A. 1989).

IV.

In his fourth assignment of error, the appellant

points to numerous instances in the ten pages of testimony

by D, who was 7 years of age at the time of trial, where

the court reporter indicates in the record that D gave " no

audible response" to certain questions. In his brief on this

issue, the appellant states that "[a]lmost all of the responses

during cross-examination . . . [of D] were not recorded."

Appellant’s Brief at 7. We do not construe this general

statement, unsupported by any specific examples, to be an

assertion that there was actually a response that was simply

not recorded.

From our reading of the record of trial, it appears

the child simply said nothing when asked questions he

either didn’t understand or did not wish to answer. In

either instance, counsel merely rephrased the question or

moved on. We fail to sec how the failure of a young child

to respond to every question asked of him particularly

about the subject of sexual abuse, can be construed as a

failure to provide a complete record as the appellant now

asserts, and none of the cases cited in support of this

assigned error bears any factual resemblance to this

situation. If in fact D was giving responses that simply

could not be heard, the trial defense counsel should have

asked that the witness be instructed to speak louder and to

33a

repeat his answer. If D was giving non-verbal responses

(and there were some, which the trial counsel or the

military judge explained for the record), the trial defense

counsel should have acted to ensure that the record

properly reflected the response.

We conclude that the record of trial is not

incomplete and is substantially verbatim. United States v.

McCullah, 11 M.J. 234 (C.M.A. 1981).

V.

In his fifth assignment of error, the appellant

complains that the military judge should not have permitted

the Government to amend two specifications during trial to

conform the offenses to the testimony of T. One

specification alleged that the appellant had committed

sodomy with T at or near Virginia Beach, Virginia,

between October 1988 and September 1989. Charge I,

Specification 2.° The second alleged that the appellant

had committed an indecent act with T at or near

Porterville, California, between December 1990 and

February 1991. Charge Il, Specification 1. Over objection

by the trial defense counsel, the military judge permitted

the Government to amend the sodomy specification to "at

All of the parties and the court-martial order refer to this offense

as Specification 2 of Charge |. Actually, Charge I, on which appellant

was arraigned, record at 8, and which was subsequently withdrawn by the

Government, record at 43, was alleged as a violation of Article 125,

UCMJ. While renumbering the charges for the benefit of the members

may have been a necessity in this case, that renumbering should not have

persisted beyond the conclusion of the trial. We shall address this error

in our disposition of this case. To prevent confusion, however, we shall

continue to refer to the charges as referenced by the parties before this

Court.

34a

or near Porterville, California, between October 1988 and

February 1991" and the indecent act specification to "at or

near Virginia Beach, Virginia, between October 1988 and

February 1991." Record at 152.

The military judge found that appellant was on

notice concerning his behavior with the children, and T in

particular, between October 1988 and February 1991 at

both locations where the appellant had maintained a home

before and after his transfer from Virginia to California.

Under this circumstance, he concluded that the

amendments were minor and did not constitute a material

variance. We agree. The appellant did not rely upon alibi

as a defense in this case, but he contended that the victims

were fabricating their testimony. Consequently, the

amendments did not undermine his defense, and the

appellant was on notice of the time frame in which all of

these offenses had allegedly occurred. We conclude that

neither the dates nor the locations where these offenses

occurred were "offense defining." See United States v.

Brown, 34 M.J. 105, 109-110 (C.M.A. 1992).

VI.

As to the appellant’s sixth assignment of error, we

are convinced beyond a reasonable doubt of the appellant’s

guilt of the offenses of which he was convicted. See

United States v. Turner, 35 M.J. 324 (C.M.A. 1987). The

appellant's remaining assignments of error are also without

merit. Weiss v. United States, 114 S.Ct. 752 (1994).

Accordingly, the findings and sentence, as approved

on review below, are affirmed. As noted in footnote 2,

above, the court-martial order fails to include a charge on

which the appellant was arraigned. s-. 7 C.M. 1114(c)(1).

The issuance of a corrected order 1: fie by ordered.

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