Petition for Writ of Certiorari — Cabral v. United States

~~ Supreme Court, U.S.

$e FILED

97 1027 DEC 19 1997

OFFICE OF THE CLERK

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

MASTER SERGEANT MATHEW G. CABRAL, JR..,

PETITIONER

Vv.

UNITED STATES OF AMERICA, RESPONDENT

Petition For a Writ of Certiorari to the

United States Court of Appea. ‘or the Armed Forces

PETITION FOR WRIT OF CERTIORARI

Harold M. Vaught

Captain, United States Air Force

Appellate Defense Counsel

Counsel for Petitioner

Douglas H. Kohrt

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel of Record

Air Force Legal Services Agency

Appellate Defense Division

172 Luke Avenue, Suite 343

Bolling AFB, DC 20332-8000

202-767-1562

November 1997

QUESTIONS PRESENTED

Whether the petitioner was denied the opportunity for

effective cross-examination.

Whether petitioner’s punitive discharge violates both the

fifth and eighth amendments to the Constitution.

ill

TABLE OF CONTENTS

Page

EE Ee re a Pee l

IE SS Oe a oe l

pe eg gO ad go | ie I

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

THE PETITIONER WAS DEPRIVED OF THE

OPPORTUNITY FOR EFFECTIVE CROSS- ©

EXAMINATION.

PETITIONER’S PUNITIVE DISCHARGE

VIOLATES BOTH THE FIFTHAND EIGHTH

AMENDMENTS TO THE CONSTITUTION.

og 8 IRR SAE ee ee 7

APPENDIX A (Opinion of the United States

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

APPENDIX B (Opinion of the United States

Air Force Court of Criminal Appeals) ................ 18a

iV

TABLE OF AUTHORITIES

Page

Military Cases:

United States v. Stombaugh, 40 MJ 208,

(Ee SEE bo A Siva RA eee i wnergas 4

United States v. Cordero, 22 MJ 216

PG I occ cd kcb a 4 Rhee ae hee oe Lean 5

Other Federal Cases:

Davis v. Alaska, 415 U.S. 308 (1979) ............2.. 4

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

Ohio v. Roberts, 448 U.S. 56 (1980) ................ 5

Lee v. Hilinois, 476 US: SFO CFGS) ove cece cc cwacs 5

Johnson v. United States, 333 U.S. 10

CRN is. s CRON Cer Pee eh icc eh Cee deeeek 5

Lo-Ji Sales, Inc. v. New York,

RF Te ao 5s 6k bK SEU As aoa Rew HS 5

Sumrall v. United States, 117 S.Ct. 961, ©

Ree I CUE ooo a do es ag dw Bk bo mae es 7

Federal Statutes:

10 USC §§ 867(a), 880, 934 (West Supp. 1996) ...... 1

28 USC §$ 1259 (West Supp. 1996) ... 00. ccc cceeecs l

Other Authority:

State v. Robinson, 153 Ariz. 191,

pe REE EIS SSI 6

Anderson, Note, Assessing the Reliability of Child

Testimeny in Sexual Abuse Cases,

69 S.Cal. L.Rev. 2117 (Sept. 1996)

The petitioner, Master Sergeant Mathew G. Cabral, Jr.,

respectfully prays that a writ of certiorari issue to review the

order and judgment of the United States Court of Appeals for

the Armed Forces entered in his case, issued on 30 September

1997.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Armed Forces, reported at No. 96-0596,__MJ__(30

September 1997), is located at Appendix A. The opinion of

the United States Air Force Court of Criminal Appeals, United

States v. Cabral, 43 MJ 808 (AFCt.CrimApp 1996) is located

at Appendix B.

JURISDICTION

The judgment of the United States Court of Appeals for

the Armed Forces was entered on 30 September 1997. The

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

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

1996).

STATEMENT OF THE CASE

On 8 April 1993 charges of sodomy and indecent acts

with a child were preferred against petitioner, and

immediately thereafter on 14 and 15 April 1993 an Article 32

hearing was held. Petitioner was then tried by a general court

martial at Norton Air Force Base, California, on 28—29 July

and 31 August—3 September 1993. Contrary to his pleas he

was convicted of attempted sodomy with a child under the age

of 16 in violation of Article 80, UCMJ [10 USC § 880] and

two specifications of indecent acts and liberties with a child,

in violation of Article 134, UCMJ [10 USC § 934]. Appellant

was sentenced to a dishonorable discharge, confinement for

_ —— =

a ET a

seven years, and reduction to the lowest enlisted grade. The

convening authority approved the findings and the sentence as

adjudged.

The United States Air Force Court of Criminal Appeals

heard oral argument in the case and on 23 January 1996

affirmed the conviction. United States v. Cabral, 43 M.J. 808

(A.F.Ct.Crim.App. 1996)(Appendix B). The United States

Court of Appeals for the Armed Forces granted review with

respect to the questions presented in this petition and

subsequently affirmed the findings and sentence. (Appendix

A).

Appellant’s wife was the full-time babysitter of Jessica

J., a four year old child, and her brother, Justin, two years old.

(R. 83). On Friday, 22 January 1993, sometime after 1800

hours, Jessica told her mother that her “hoi” hurt. (R. 85).

Jessica referred to her vaginal area as her hoi, which is the

Thai term for vagina. Upon visually examining the area the

child’s mother noticed some redness. When asked by her

mother how the redness occurred, Jessica replied that “LuMac

play too rough.” LuMac is the Thai word for uncle and the

name Jessica called petitioner. When her mother asked

Jessica what played too rough meant, Jessica placed her hand

in the vaginal area and began rubbing up and down. The

mother immediately confronted the Cabrals with these

allegations. The Cabrals denied any abuse.

On 23 January 1996 Jessica’s mother took her to see a

nurse who confirmed the redness. (R. 86). The nurse, Ms.

Geise, said that she was required to report this to the local

police and the state authorities. Jessica’s parents described

the alleged acts to Ms. Geise in Jessica’s presence. The next

day prior to calling the local police, the mother again

questioned Jessica about what happened. Jessica at this point

agreed that petitioner licked, rubbed and inserted his finger in

her “hoi.” She also said that petitioner “spanked his ding-

dong” and touched Justin’s “ding-dong” before he stopped

when Mrs. Cabral came home. (R. 91).

After questioning by a local police detective, Mr. Graves,

Jessica finally talked to an agent with the Air Force Office of

Special Investigations (OSI), SA Chambers. After

interviewing Jessica’s mother on 29 January 1993, Jessica

was taken to the OSI office on 1 February for her interview

session which was ultimately videotaped. (R. 91-92, App Ex.

VIII). However, only a portion of that interview was taped.

A 20-minute pre-interview “rapport-building” session was not

recorded.

At trial, the defense sought to exclude any testimony of

Jessica, arguing that Jessica was not competent because her

ability to observe, recollect, understand and communicate was

not adequate. (R. 15-18). The Military Judge deemed Jessica

unavailable as a witness because she refused to answer any

questions in court. ( R. 81). Subsequently, he admitted the

videotaped interview in evidence, citing the residual hearsay

rule, Mil. Rule Evid 804(b) (5). (R. 145-147).

On review before the United States Court of Appeals for

the Armed Forces, that court specified the issue of whether

this ruling by the military judge deprived the petitioner of the

opportunity for effective cross-examination. In a two part

analysis, the lower court determined that Jessica was correctly

found unavailable to testify within the meaning of

Mil.R.Evid. 804(a)(2)(a witness is unavailable where he or

she “persists in refusing to testify concerning the subject

matter...”)(Appendix A). It further found “particularized

guarantees of trustworthiness” to support admission under the

residual hearsay rule, citing “spontaneity”, “consistent

repetition”, “child-like terminology” and “lack of motive to

fabricate.” However, the majority of the court below fails to

deal with other circumstances surrounding the videotaped

interview tending to detract from the reliability of the

eT

videotaped interview, i.e., the fact that the videotaped

interview was provided to a law enforcement officer in the

course of criminal investigations, that the child was very

young and therefore susceptible to suggestion and

manipulation, and that the taped interview omitted a 20-

minute “rapport-building” session which preceded the

interview, thus raising questions as to what the investigator

said to the child just before he recorded her interview. See

Appendix A, Effron, J. (concurring in the result). Herein, the

petitioner focuses on the lower court’s finding of

trustworthiness notwithstanding these circumstances clearly

detracting from the reliability of the out-of-court statements

which were admitted.

Prior to the court-martial Appellant had served on active

duty for over 20 years. Appellant had even requested

retirement by submitting his retirement papers.

REASONS FOR GRANTING THE WRIT

THE PETITIONER WAS DEPRIVED OF THE

OPPORTUNITY FOR EFFECTIVE CROSS-

EXAMINATION.

Members of the military are guaranteed certain

fundamental rights that are protected by the United States

Constitution and federal laws. One such right is the right to

confront and cross-examine witnesses. See United States v.

Stombaugh, 40 M.J. 208, 212 (CMA 1994) (citations

omitted). The main and essential purpose of confrontation is

to secure for the opponent the opportunity to cross-examine.

Davis v. Alaska, 415 U.S. 308, 315-316 (1979).

Clearly, the admission of out-of-court hearsay evidence

may implicate the criminal accused’s right to cross-examine

and confront adverse witnesses. However, hearsay is

constitutionally admissible against the accused if the out-of-

i

court declarant is unavailable to testify and the hearsay

statement falls within a firmly rooted exception to the hearsay

rule or has “particularized guarantees of trustworthiness.”

Idaho v. Wright, 497 U.S. 805, 816 (1990) quoting Ohio v.

Roberts, 448 U.S. 56, 66 (1980). As the court below

implicitly recognized , the residual hearsay rule, Mil.R.Evid.

804(b)(5), is not a firmly rooted hearsay exception. Thus, we

must find special guarantees of trustworthiness sufficient to

render the “declarant’s truthfulness. . .so clear from the

surrounding circumstances that the test of cross-examination

would be of marginal utility...” Wright, 497 U.S. at 820.

Such circumstantial guarantees of trustworthiness can be

found only in the circumstances surrounding the making of

the out-of-court statement and may not be found in other

evidence corroborating the occurrence of a crime. /d. at

821-822. Further, such guarantees of trustworthiness must be

sufficient to overcome the presumption of inadmissibility

accorded to accusatory hearsay statements which are not

admitted pursuant to a firmly rooted hearsay exception. /d. at

827 citing Lee v. Illinois, 476 U.S. 530 at 543.

The circumstances surrounding the videotaped interview

admitted at trial, viewed in total, simply do not provide such

compelling guarantees of trustworthiness sufficient to

overcome this presumption of inadmissibility. The

videotaped interview was given to a military investigator in

the course of investigations. Because it is recognized that law

enforcement officers are not mere impartial observers, but are

“engaged in the often competitive enterprise of ferreting out

crime”, accusatory hearsay statements given in the course of

investigations are reasonably viewed with skepticism. See

Johnson v. United States, 333 U.S. 10, 14 (1948); United

States v. Cordero, 22 MJ 216, 223 (CMA 1986) citing, inter

alia, Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979). This

skepticism is only compounded where the out-of-court

statement is given by a very young child accuser; today, it is

common knowledge that young children are particularly

susceptible to adult suggestion or manipulation (whether

purposeful or unintended) in a situations of suspected child

sexual abuse. See, e.g., Anderson, Note, Assessing the

Reliability of Child Testimony in Sexual Abuse Cases, 69

S.Cal L.Rev. 2117, 2146 (Sept. 1996)(“The consensus in the

social-science literature indicates that, depending on the

procedures used, children can be suggestible, and coercive

interviewing techniques can render their accounts of abuse

unreliable.”) citing, Younts, Evaluating and Admitting Expert

Opinion Testimony in Child Sexual Abuse Prosecutions, 41

Duke L.J. 691 (1991).

Adding to our reasonable skepticism and the weight of

the presumption of inadmissibility still further is the specter

of improper taint associated with the fact that military

investigators recorded only the latter portion of their

conversation with the child accuser. What was said by

investigators in preparation for the taped interview is not

revealed by the record, but the absence of this information

certainly does nothing to bolster the trustworthiness of the

out-of-court statements admitted.

While the majority of the court below emphasizes certain

circumstances which may generally enhance reliability (e.g.,

spontaneity, consistent repetition within the recorded

interview), these factors are not an accurate indicator of

trustworthiness where the circumstances of the interview were

pregnant with the potential for improper manipulation by law

enforcement seeking to build a case for the sexual abuse of a

4 year old child. See Wright, 497 U.S. at 826-827 (where

there is evidence of prior interrogation by adults of purported

victim of child sex abuse, “spontaneity may be an inaccurate

measure of trustworthiness”) quoting State v. Robinson, 153

Ariz. 191, 201, 735 P.2d 801, 811 (1987). While the

petitioner did not develop a record to tell us what was said

during the pre-interview rapport session, the burden is not on

him to show the untrustworthiness of the admitted statement.

Rather, the burden is on the State to show particularized

guarantees of trustworthiness sufficient to overcome the

presumption of inadmissibility. This the government failed to

do.

PETITIONER’S PUNITIVE DISCHARGE

VIOLATES BOTH THE FIFTH AND EIGHTH

AMENDMENTS TO THE CONSTITUTION.

This issue has been the subject of other petitions for

writs of certiorari, which this Honorable Court has denied.

See, e.g., Sumrall v. United States, 117 S.Ct. 961, 136 L.Ed.

2d 847 (1997). This issue is asserted to preserve it for future

judicial review.

CONCLUSION

Clearly, the petitioner’s rights under the Confrontation

Clause of the Sixth Amendment were violated by the

admission of this evidence necessary to support the

petitioner’s court-martial conviction. Additionally, the

punitive discharge which was imposed violates the

petitioner’s rights under the fifth and eighth amendments.

This petition for a writ of certiorari should therefore be

granted.

HAROLD M. VAUGHT

Captain, United States Air Force

Appellate Defense Counsel

Counsel for Petitioner

DOUGLAS H. KOHRT

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel for Record

9 rere a seat rete

November 1997

Air Force Legal Services Agency

Appellate Defense Division

112 Luke Avenue, Suite 343

Bolling AFB, DC 20332-8000

202-767-1562

la

APPENDIX A

UNITED STATES, Appellee,

V.

Matthew G. CABRAL, Jr., Master Sergeant

U.S. Air Force, Appellant

No. 96-0596

Crim. App. No. 30953

U.S. Court of Appeals for

the Armed Forces

Argued March 5, 1997

Decided September 30, 1997

Counsel

For Appellant: Lynmarie Cusack (argued); Gary Myers and

Major Ormond R. Fodrea (on brief); Colonel Jay L. Cohen,

Lieutenant Colonel Kim L. Sheffield, and Captain Richard D.

Desmond.

For Appellee: Captain Deborah M. Carr (argued); Colonel

Theodore J. Fink and Lieutenant Michael J. Breslin (on brief);

Colonel Jeffery T. Infelise.

Military Judge: Robert E. Kaszczuk

Opinion of the Court

CRAWFORD, Judge:

Contrary his pleas, appellant was convicted of attempted

sodomy with a child under the age of 16 and taking indecent

liberties with and committing indecent acts upon a child under

the age of 16, in violation of Articles 80 and 134, Uniform

2a

Code of Military Justice, 10 USC §§ 880 and 934,

respectively. The convening authority approved the sentence

of a dishonorable discharge, 7 years’ confinement, and

reduction to the lowest enlisted grade. The Court of Criminal

Appeals affirmed the findings and sentence. 43 MJ 808. We

granted review of the following specified issue:

WHETHER APPELLANT WAS DEPRIVED OF THE

OPPORTUNITY FOR EFFECTIVE

CROSS-EXAMINATION. !

We hold that there was no violation of appellant’s Sixth

Amendment right and that the judge did not abuse his

discretion in admitting the videotape of the victim. 2

FACTS

On January 22, 1993, while watching television, 4-year-

old J told her mother that her vaginal area hurt. Her mother

took her to the restroom, thinking that she needed to be

cleaned up but noted a red irritated spot on J’s vagina. When

asked how this happened, J informed her mother that

appellant, her babysitter’s husband, “play so rough with me.”

J’s mother and father decided to confront the Cabrals that

evening over the telephone. Thereafter, appellant asked about

their plans concerning the allegations. J’s father informed

appellant that they would take J to the clinic the next day.

After the call from J’s parents, appellant and his wife called

J’s house that night so many times that J’s mother had to take

the phone off the hook.

lWe also granted review of “whether petitioner’s punitive discharge vio-

lates both the Fifth and Eighth Amendments to the Constitution.”

Appellant concedes that this was adversely decided against him in United

States v. Sumrall, 45 MJ 207 (1996)

2 The challenge on appeal is as to admissibility of the videotape of the

statement given to Special Agent Chambers.

3a

The next day, Saturday, J was examined by a nurse-

practitioner who noted the irritation in J’s vaginal area.

Because she did not have the equipment for further

examination, she referred J to a specialist. After the

examination on Saturday, appellant called J’s mother and said,

“Please do not report” this. He said that he would lose his

retirement and that he had a family to support. Later that day,

immediately before making a report to the police department,

J’s mother went to appellant’s house. At that time, appellant

asked if J’s mother had been seen by the Child Protective

Services. Her mother did not understand and asked “What is

Child Protective” Services? Appellant responded, “You will

find out. You will be sorry.”

On January 27, 1993, five days after J initially reported

this incident to her parents, appellant submitted his retirement

papers.

On February 1, 1993, nine days after J’s abuse was

discovered, she had a videotaped interview with Special

Agent (SA) Chambers of the Air Force Office of Special

Investigations (OSI). During this interview, J detailed the

abuse in response to non-leading questions.

On February 2, 1993, J was taken to the emergency room

in the San Antonio Community Hospital where she was

examined by a nurse who specialized in sexual assaults. Ms.

Ann Kristine Rowney took pictures of J’s vaginal area. These

pictures showed “a thinning or a sparing [sic] of the tissue” at

the base of the vagina! opening and an “abrasion on the inner

aspect of her left labia majora, which is in the vestibule.”

These observations are consistent with findings of sexual

abuse, especially the abrasion in the vestibule area. The thin

tear by the anus was less suspicious.

On April 14, 1993, J appeared at appellant’s hearing

under Article 32, UCMJ, 10 USC § 832, but was reluctant to

answer questions. The next day, SA Chambers sat with J at the

4a

OSI office and asked her questions presented by the

Government and the defense. The parties watched from an

adjoining room. The examination was videotaped. A 20-

minute rapport session was not videotaped. However, SA

Chambers testified that he did not ask J any questions about

the alleged abuse during that session.

On a prosecution motion to admit the first videotape

statement to SA Chambers, J was called as a witness.

However, after she was unable to answer questions even as to

her name, the judge asked the defense if they had been able to

talk to her. Trial defense counsel stated that there had been “ a

very non-informative meeting” at her house the previous

night. The judge asked if the defense would like another

attempt to talk with the child. The inaividual military counsel

replied, “Well, Your Honor, I’m not waiving any right to

cross-examine her, but under the circumstances it looks to me

like she’s not available to testify in this courtroom.”

Later an expert, Dr. Ebert, testified that J was not able to

testify in a manner that would produce effective examination

from either side. Dr. Ebert further testified that J would

absolutely not be able to testify in open court and that he did

not see a closed-circuit camera “as being an effective method

either.”

After this testimony, the military judge found J

unavailable as a witness under Mil.R.Evid. 804(a), Manual for

Courts-Martial, United States (1995 ed.), and admitted the

videctapes and the statements under Mil.R.Evid. 804(b)(5),

the residual-hearsay rule. The military judge relied on the

following indications of the statements’ trustworthiness:

Fifth, I find that the videotape of 1 February

1993 is admissible as residual hearsay and does not

violate the accused’s right to confrontation in this

case.

Sa

Sixth, I find that the 1 February 1993 videotape

interview is the most probative evidence of the two

sources of evidence. The court members will be

able to directly observe the demeanor of [J] as she

responds to questions. Furthermore, the court

members will hear her testimony directly without a

third party, the mother, recalling what the child said

to her.

Seventh, I find that the 1 February 1993

videotape is more probative on the points for which

it is offered than any other evidence which the

Government can procure through reasonable efforts.

In fact since the child is unavailable, it is the only

evidence other than the testimony of the mother that

describes all of the alleged acts committed against

the child by the accused.

Eighth, I find that the offered testimony of [J]

has the circumstantial guarantees of trustworthiness

as follows:

First, the seriousness of the allegations made

against the accused was “*aphasized by Special

Agent Chambers.

Second the neccesiry for honesty was

emphasized to the child, and she repeatedly

acknowledged that she would be truthful.

Third, the questions asked of [J] were not

leading or overly suggestive in light of [J]’s age of 4

years old at the time of the videotape. The questions

may not have been objectionable in court during her

testimony on direct examination had she been

available.

Fourth, the questions by Special Agent

Chambers and answers of [J] were not rehearsed.

6a

Fifth, it would have been almost impossible for

a 4-year-old child to fabricate an entire incident as

complex as the one described in the videotape.

Sixth, [J] is very honest in the sense that she

was still young enough at the time that she lacked

inhibitions which would cause her to hold back

information. A 4-year-old child lacks knowledge of

the sexual world which would enable her to be

creative in this area.

Seventh, [J]’s information and knowledge with

regard to the alleged sexual offenses is not within

the realm of common knowledge for a normal 4-

year-old child. There has been no credible evidence

presented that this knowledge could have been

acquired by [J] in any other way than as a victim of

sexual assault by the accused in the time frame, the

place, and the manner alleged.

Eighth, the language used by the child in

describing the sexual acts which allegedly occurred

are age-appropriate for a 4-year-old child. The

language itself used by the child is strong evidence

that the child was not coached by an adult, but was

using her limited terminology and knowledge of the

ways of the world to describe what she actually

observed and experienced.

Ninth, no cogent motivation for the child to lie

was suggested.

Tenth, the child was speaking from first-hand

knowledge.

And finally, the circumstances of giving the

statement were neither coercive or unduly

suggestive.

Te

Ta

My ninth conclusion of law includes the finding that

the general purpose of these rules and the interests

of justice will be served by admission of the

videotape into evidence. There is no other evidence

to be presented to the trier of fact available in this

case.

DISCUSSION

The Sixth Amendment guarantees servicemembers the

right of compulsory process and confrontation. In Ohio v.

Roberts, 448 U.S. 56, 63 (1980), the Supreme Court

expressed a preference for face-to-face confrontation at trial.

Hearsay is constitutionally admissible against the accused

when the witness is unavailable and the hearsay statement

falls within a firmly rooted exception? or has “particularized

guarantees of trustworthiness.” Jdaho v. Wright, 497 U.S. 805,

816 (1990), quoting Roberts, supra at 66.

As to the constitutional requirement of showing

unavailability, the Court in White v. Illinois, 502 U.S. 346,

354 (1992), announced “that [the] unavailability analysis is a

necessary part of the Confrontation Clause inquiry only when

the challenged out-of-court statements were made in the

course of a prior judicial proceeding.” But White did not

eliminate the requirement that the statement fall under a

firmly rooted exception or be reliable. /d. at 355-57.

However, as we have indicated in past opinions, a finding of

unavailability is relevant in deciding what factors may be

employee in determining the reliability of the out-of-court

Statement.

3There are a number of firmly rooted exceptions: White v. Illinois, 502

U.S. 346, 355 (1992) (excited utterance and medical exception); United

States v. Inadi, 475 U.S. 387 (1986) (statement of co-conspirators); United

States v. Jacobs, 44 MJ 301, 306 (1996) (declaration against interest).

4See, e.g., United States v. McGrath, 39 MJ 158 (CMA 1994).

8a

Chief Justice Rehnquist recognized that Roberts

might suggest that the Confrontation Clause generally

requires that a declarant either be produced at trial or

be found unavailable before his out-of-court statement

may be admitted into evidence. However, we think

such an expansive reading of the Clause is negated by

our subsequent decision in [United States v.] Inadi,

[475 U.S. 387 (1986)].

White, supra at 353.

While /nadi involved evaluating statements of co-

conspirators, its “observations” apply with full force to

excited utterances and statements admitted under the medical

exception because these statements cannot be duplicated

simply by the declarant later testifying in court. /d. at 355-56.

The same rationale might not be applied so easily to a

statement to a police officer.

In any event, the Court in White rejected White’s

argument that Maryland v. Craig, 497 U.S. 836 (1990), would

apply. /d. at 358. It noted, that “Craig involved only the

question of what in-court procedures are constitutionally

required to guarantee a defendant’s confrontation right once a

witness is testifying.” Jd.

We have been very cautious about admitting pretrial

statements by child victims made to the police under the

residual-hearsay rule. See United States v. Casteel, 45 MJ 379

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

States v. McGrath, 39 MJ 158 (CMA 1994); United States v.

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

MJ 240 (CMA 1993). We have expressed some reservations

about these statements, see, e.g., United States v. Barror, 23

MJ 370, 372 (CMA 1987), but have declined to adopt a rule

rejecting statements to the police as per se unreliable. United

States v. Hines, 23 MJ 125, 136 (CMA 1986).

9a

AVAILABILITY

White v. Illinois, supra, recognized that the requirement

of showing unavailability could not apply across the board to

the more than 25 exclusions and exceptions for admitting

hearsay statements. 502 U.S. at 356-57. Assuming

availability need not be shown for statements of co-

conspirators, excited utterances, and statements under the

medical exception, the evidence in this case clearly supports

the military judge’s finding that J was unavailable under

Mil.R.Evid. 804(a)(2) (“persists in refusing to testify

concerning the subject matter. . .”’).

¢ J was unable to communicate beyond the word “fine”

when she was first brought into the courtroom.

¢ J sat in the courtroom leaning her head against the side

of the witness stand.

¢ Dr. Ebert, and expert, testified that J would be unable

to testify in open court or via closed-circuit television.

¢ J was unable to testify at the Article 32 hearing in the

presence of anyone except SA Chambers.

¢ Trial defense counsel indicated a belief that J was

unavailable by stating:

I’m not waiving any right to cross-examine her, but

under the circumstances it looks to me like she’s not available

to testify in this courtroom. . . . Well, there’s no point in

bringing her in here to have her cry. If she’s not going to

answer questions for the prosecution, I can’t imagine she

would answer them for me.

Considering J’s age of 4 years, demeanor, and past

experiences a the Article 32 hearing, as well as trial defense

counsel’s acknowledgment of unavailability (to a limited

extent), and Dr. Ebert’s testimony that J would be unable to

communicate effectively, we hold that J was unavailable

eS ee

10a

under Mil.R.Evid. 804(a) and also under constitutional

standards.

TRUSTWORTHINESS

J’s statements in the videotape have the constitutionally

required indicia of reliability.

In Wright, 497 U.S. at 805, the Supreme Court reversed

the conviction of an accused child molester because the

hearsay statements admitted against him under the residual-

hearsay rule for unavailable witnesses did not possess an

adequate indicia of reliability. The Court noted that the

residual-hearsay exception is not firmly rooted and, therefore,

one cannot infer reliability from the nature of the exception.

Id, at 817. The Court held that the indicia of reliability must

arise “from the circumstances in which the statement was

made.” Jd. at 821. The Court noted that indicia of reliability

include spontaneity, consistent repetition, mental state of the

declarant, terminology unexpected of a child, and lack of

motive to fabricate. Jd. Corroborating evidence of the crime is

not an adequate indicia of reliability when confrontation has

not been satisfied. Jd. at 826-827. Further, in that case, the

interview with the child was not videotaped, involved leading

questions, and was asked with a “preconceived idea of what

the child should be disclosing.” /d. at 812-813.

This Court has adopted additional factors as well

including the length of time between the incident and the

hearsay statements, and whether the witness admitted the

truth of the hearsay statements under oath. United States v.

Morgan, 40 MJ 405, 408 (CMA 1994); McGrath, 39 MJ at

158. This Court has also noted that corroborating evidence

may be used to show the trustworthiness of residual hearsay

when the witness is available for cross-examination, although

that is not the situation in the case at bar. Ureta, 44 MJ at 296,

citing McGrath, supra at 164-67. #§

lla

In the case at bar, there are abundant indicia of

reliability:

¢ Spontaneity: J answered non-leading questions

regarding the incident with detail. For example, when asked,

“What were you doing in the kitchen?” J responded, “He

don’t let me out; he say, ‘Stay there.’ ”

¢ Consistent repetition: J’s story did not change

throughout the interview. Her account of events remained

basically the same.

¢ Terminology: J used child-like terminology in

explaining events. For example, she spoke of appellant

“spanking” his “ding-dong.”

¢ Lack of motive to fabricate: J had no known reason to

fabricate the events.

J’s videotaped interview elicited detailed answers about

events that a 4-year-old should not know. It is doubtful that

any 4-year-old could remember a lie in that much detail. In

addition, the videotape provided the members with the

opportunity to view the child’s demeanor, her confusion on

occasion, and her communication skills. There were few

leading questions during the interview, and SA Chambers did

not suggest appellant was the perpetrator. The videotaped

interview shows numerous indicia of reliability.

J’s unavailability and the trustworthiness of the

videotape reveal that there was no Confrontation Clause

violation in admitting the videotape under the residual hearsay

exception.

The decision of the United States Air Force Court of

Criminal Appeals is affirmed.

Chief Judge COX and Judge GIERKE concur.

SULLIVAN, Judge (concurring in the result):

I join my Brother, Judge Effron, in his separate opinion

in this case. Moreover, I do not agree that evidence

12a

corroborating the occurrence of a crime may be used to show

trustworthiness of residual-hearsay evidence when the out-of-

court declarant is available for cross-examination. See United

States v. McGrath, 39 MJ 158, 169 (CMA 1994) (Sullivan,

C.J., dissenting). Neither does the 10th Circuit which recently

said:

The precise issue in /daho v. Wright was not

the admissibility of evidence under Rule 803 (24).

Rather, the petitioner in Wright challenged the

admission of a hearsay statement on Confrontation

Clause grounds. 497 U.S. at 808, 110 S.Ct. at 3143.

One of the requirements of the Confrontation

Clause, however, is that the hearsay statement

“bear[] adequate ‘indicia of reliability.’ ” Jd. at 814,

110 S.Ct. at 3146 (internal quotation marks omitted).

It was this requirement that the Court discussed at

length in Wright. In doing so, it cited and discussed

several lower court decisions that identify factors

which should be considered in assessing the

reliability of out-of-court statements by child

witnesses in sexual abuses cases. /d. at 821-22, 110

S.Ct. at 3149-50. Importantly, each of the cases

cited by the Court addressed the admissibility of

such statements under exceptions to the hearsay

rule—not the Confrontation Clause. Indeed, two of

the cases involved the reliability requirement of the

residual hearsay exception. See Arizona v. Robinson,

153 Ariz. 191, 735 P.2d 801, 811 (1987); Wisconsin

v. Sorenson, 143 Wis. 2d 226, 421 N.W.2d 77, 83-86

(1988). In essence, the Court saw no meaningful

distinction between Rule 803(24)’s requirement that

a statement have “circumstantial guarantees of

trustworthiness” and the Confrontation Clause

requirement that it “bear adequate indicia of

13a

reliability.” Thus, even though Wright is technically

a Confrontation Clause case, its discussion of the

reliability of hearsay statements by child victims

of sexual abuse is equally pertinent to both

Confrontation Clause cases and Rule 803 (24) cases.

United States v. Tome, 61 F.3d 1446, 1452 n.5 (1995).

Accordingly, I disagree with the majority on this point

EFFRON, Judge (concurring in the result):

In this case, the primary evidence against appellant

consisted of accusatory hearsay evidence in the form of a

videotaped interview of a 4-year-old child by a law

enforcement officer. As the majority notes, the Supreme

Court has stated that the Sixth Amendment right to

confrontation does not establish a per se prohibition against

use of accusatory hearsay testimony. See, e.g., Ohio v.

Roberts, 448 U.S. 56, 63 (1980). The Supreme Court,

however, has established a high hurdle that must be

surmounted when the accusatory hearsay is offered under a

residual exception to the hearsay rule, rather than under one

of the traditional, or “firmly rooted,” exceptions. See Idaho

v. Wright, 497 U.S. 805 (1990) (excluding doctor’s

testimony about accusatory statement of alleged victim in

child sexual abuse case under specific circumstances of

case). I write separately to emphasize that my concurrence

in the result is based upon the specific circumstances of this

case.

In Wright, the Supreme Court stated that an accusatory

hearsay statement could be admitted only if the statement

bore “‘adequate indicia of reliability.” 497 U.S. at 815 (internal

quotation marks omitted). The Court added that reliability

could be inferred “where the evidence falls within a firmly

rooted hearsay exception,” id., such as the “excited utterance”

exception. /d. at 820; see Mil.R.Evid. 803(2), Manual for

14a

Courts-Martial, United States (1995 ed.). The Court

emphasized, however, that because the residual hearsay

exception did not fall within a “firmly rooted hearsay

exception,” an accusatory statement offered under that

exception was “presumptively barred by the hearsay rule and

the Confrontation Clause.” /d. at 816-17. The presumptive

exclusion could be overcome by “a showing of particularized

guarantees of trustworthiness.” /d. at 818, quoting Roberts,

448 US. at 66.

The Court rejected the proposition that the guarantees of

trustworthiness could be demonstrated by evidence

corroborating the accusatory hearsay declarant’s statement

because corroboration was not a satisfactory basis for

evaluating the truth in the absence of cross-examination. /d. at

822-23. The Court emphasized that the “firmly rooted”

hearsay exceptions, such as excited utterances, were based on

the circumstances existing when the statement was made; the

statements were deemed “so trustworthy that adversarial

testing would add little to their reliability.” /d. at 820-21. The

Court noted that the “particularized guarantees of

trustworthiness required for admission under the

Confrontation Clause” could be demonstrated only by

evidence concerning the “totality of the circumstances that

surround the making of the statement and that render the

declarant particularly worthy of belief.” Jd. at 820. As a result,

the Court concluded, “unless an affirmative reason, arising

from the circumstances in which the statement was made,

provides a basis for rebutting the presumption that a hearsay

statement is not worthy of reliance at trial, the Confrontation

Clause requires exclusion of the. . .statement.” Jd. at 821. The

Court declined to establish a “fixed set of procedural

prerequisites to the admission of such statements at trial,”

preferring that there be a case-by-case assessment based on

the “totality of the circumstances.” /d. at 818-19.

The majority opinion in the case before us describes the

factors which indicate “particularized guarantees of

trustworthiness” in terms of specific details of the interview.

There are three additional factors, however, which are of

concern in this case. First, the statement was made to a law

enforcement officer during an investigatory interview when

the focus was on appellant. Second, the interview involved a

young child, implicating particular concerns as to

suggestibility or manipulation. Third, the videotape omitted

the 20-minute “rapport” session which preceded the child’s

accusatory statements, raising questions as to what the officer

said to the child immediately before she made the accusations.

Although our Court has not established a per se rule of

exclusion for accusatory hearsay statements made to law

enforcement officers, we have noted that such statements

“must always be viewed with suspicion.” United States v.

Casteel, 45 MJ 379, 382-83 (1996) (military judge properly

exercised discretion to admit accusatory hearsay testimony

based upon specific factors in case). The reason for-such

skepticism in terms of the hearsay rule is that “criminal

investigators. . .often ‘are not merely observing and

evaluating but are seeking to build a case to prove guilt.’ ”

United States v. Guaglione, 27 MJ 268, 274 (CMA 1988),

quoting United States v. Cordero, 22 MJ 216, 223 (CMA

1986).

The problem of using a law enforcement interview is

compounded in a child sexual abuse case because of the

particular susceptibility of young children to suggestion and

manipulation in the interview process, an issue which has

been noted by a number of commentators. See, e.g., Myers,

Taint Hearings for Child Witnesses? A Step in the Wrong

Direction, 46 Baylor L. Rev. 873, 916 and n. 206 (Fall 1994);

Anderson, Note, Assessing the Reliability of Child Testimony

in Sexual Abuse Cases, 69 S. Cal. L. Rev. 2117, 2146 (Sept.

16a

1996). It is essential that any contact with the child, including

a “rapport” session, not taint a subsequent interview. In this

regard, the fact that a videotape was made of the interview,

but not of the rapport session that immediately preceded it,

could have raised serious questions about the guarantees of

trustworthiness of this interview. In this case, however,

defense counsel—who had ample opportunity to cross-

examine the interviewing officer about the rapport session—

chose to focus on the content of the interview and raised no

questions about the conduct of the rapport session. As a result,

it is understandable that counsel on appeal has not identified

anything in the record about the rapport session that would

undermine the other evidence relied upon by the military

judge in holding that there were sufficient guarantees of

trustworthiness to admit the statement.

The military judge conducted a detailed hearing pursuant

to Article 39(a), Uniform Code of Military Justice, 10 USC §

839(a), on admissibility of the videotape and concluded that

the questions in the interview were “not leading or overly

suggestive” and the tape had “circumstantial guarantees of

trustworthiness.” While appellant has raised generalized Sixth

Amendment concerns before this Court, he has not identified

specific aspects of the interview that were accusatory,

suggestive, or manipulative, or that would otherwise require

us to hold that the military judge erred. Under the foregoing

circumstances, I agree with the majority that the military

judge did not err in holding that the videotape was admissible.

The concerns I have raised about use of law

enforcement interviews and failure to provide a complete

videotape of the pre-interview discussion are not intended to

question the integrity of the law enforcement officers in this

case or in general. These concerns reflect the Supreme Court’s

admonition that accusatory hearsay statements are

presumptively excluded under the Confrontation Clause and

17a

that any such statements admitted into evidence must bear

“particularized guarantees of trustworthiness.”

It is often necessary for law enforcement officials to use

investigative techniques that involve leading or accusatory

questions, and investigators often are not in a position to

videotape all or part of pre-interview discussions. Such

circumstances do not reflect a lack of professionalism or care,

but they clearly impact on the separate issue of whether an

out-of-court statement has been obtained under circumstances

which guarantee trustworthiness equivalent to the

trustworthiness of traditional exceptions to the hearsay rule—

exceptions designed to approximate, insofar as practical, the

truth-seeking attributes of in-court confrontation and cross-

examination. If a witness is truly unavailable and the

prosecution relies upon a videotaped interview in

circumstances where the evidence raises specific questions

about the conduct or reliability of the interview, such

questions place a heavy burden on the prosecution to

demonstrate “particularized guarantees of trustworthiness.”

Moreover, if the investigators have made a videotape that

omits a “rapport” session or similar activity without a

reasonable explanation, that omission could well prove fatal

to the admissibility of the interview if there are circumstances

calling into question the conduct of the rapport session. In that

regard, those persons involved in videotaping interviews of

child witnesses should heed the admonition of the Court of

Criminal Appeals not to “selectively videotape their contact

with child witnesses—all of the interview should be

taped. . . .” United States v. Cabral, 43 MJ 808, 811 (1996).

18a

APPENDIX B

UNITED STATES

V.

Master Sergeant Mathew G. CABRAL, Jr., FR576—62-7821,

United States Air Force

ACM 30953

U.S. Air Force Court of Criminal Appeals.

Sentence Adjudged 3 Sept. 1993.

Decided 23 Jan. 1996.

Accused was convicted by general court-martial, Robert

E. Kaszczuk, J., of sexual abuse of a four-year-old. The

United States Air Force Court of Criminal Appeals, Pearson,

Senior Judge, held that: (1) videotape of four-year-old |

victim’s statements to investigating officer was admissible

under residual hearsay exception for unavailable declarants;

(2) accused forfeited challenge to nurse examiner’s testimony;

(3) accused forfeited challenge to prosecutor’s closing

argument and (4) sentence of a dishonorable discharge for

sexual abuse of a child was not cruel and unusual punishment

or too severe.

Affirmed.

1. Military Justice O= 1420, 1422

In deciding whether military judge erred in admitting

child’s statement under residual hearsay rule, United States

Air Force Court of Criminal Appeals uses abuse of discretion

standard, and in applying that standard, Court generally

accepts military judge’s findings of fact unless they are

19a

unsupported by evidence or are clearly erroneous. Military

Rules of Evid., Rule 804(b)(5).

2. Military Justice O- 1422

Where military judge’s findings are silent or clearly

erroneous, United States Air Force Court of Criminal Appeals

may exercise its statutory discretion and find facts itself.

UCMSJ, Art. 66(c), 10 U.S.C.A. § 866(c).

3. Military Justice Ow 1098

Videotape of four-year-old victim’s statements to

investigating officer was admissible under residual hearsay

exception for unavailable declarants in general court-martial for

sexual abuse; victim was functionally unavailable as a witness,

victim used child’s language to describe sexual acts not within

common experience of a four-year-old, agent adequately

explained failure to videotape “rapport session,” victim’s

description of acts was not prompted by leading questions, and

accused did not offer any plausible motive for victim to

fabricate story. Military Rules of Evid., Rule 804(b)(5).

4. Military Justice Om 1044, 1123

Evidence of suggestive or coercive nature of interview of

child victim goes to credibility of child’s testimony and not its

admissibility.

5. Military Justice Ose 1415

Accused forfeited challenge to nurse examiner’s

testimony that minor victim’s injuries were consistent with

sexual abuse, where accused did not object to nurse

examiner’s testimony that victim’s injuries were consistent

with sexual abuse. Military Rules of Evid., Rule 103(a)(1).

ee ae eee eb Oe 4 =

20a

6. Military Justice Ow 1416

Accused forfeited challenge to prosecutor’s closing

argument where he did not object to argument at time it was

made. R.C.M. 919(c).

7. Military Justice Owe 1322.1

Sentence of a dishonorable discharge for sexual abuse of

a child was not cruel and unusual punishment or too severe,

even though accused completed more than 20 years of active

duty, which made him eligible for retirement.

Appellate Counsel for Appellant: John A. Wickam

(argued), Colonel Jay L. Cohen, Lieutenant Colonel Frank J.

Spinner, and Captain Richard D. Desmond.

Appellate Counsel for the United States: Captain

Deborah M. Carr (argued), Colonel Jeffery T. Infelise,

Colonel Thomas E. Schlegel, Major John H. Kongable, and

Captain Timothy G. Buxton.

Before PEARSON, BECKER, and MORGAN, Appellate

Military Judges.

OPINION OF THE COURT

PEARSON, Senior Judge:

Court members convicted appellant of sexually abusing a

friend’s 4-year-old daughter, Jessica, and sentenced him to a

dishonorable discharge, 7 years confinement, and reduction to

E-1, which the convening authority approved. Appellant

contends the military judge erred in admitting a videotaped

interview with Jessica under the miscellaneous, or residual,

exception to the hearsay rule; a nurse gave inadmissible

testimony about Jessica’s injuries; the prosecutor made an

- improper closing argument; and his sentence is too severe. We

find the alleged errors lack merit and affirm.

2la

FACTS

On Friday, January 22, 1993, appellant’s wife babysat

Jessica. At about 6 p.m., Jessica’s mother, Mrs. J, picked-up

Jessica without incident. Sometimes that evening while

watching television, Jessica told her mother, “I’m hurt, my

hoi.”

Mrs. J knew that “hoi,” a Thai term, was Jessica’s word

for vagina. She examined Jessica and found redness around

the vagina. When Mrs. J asked Jessica why her “hoi” was red,

Jessica replied “Lumac play too rough with me.” Mrs. J knew

that “Lumac” was Jessica’s nickname for appellant. Mrs. J

asked Jessica what “play too rough” meant, and Jessica placed

her hand on her vagina and began rubbing up and down.

The next day, Mrs. J took Jessica to a doctor who

confirmed the redness. On Sunday, Mrs. J decided to report

the incident to the local civilian police, but she first asked

Jessica to tell her exactly what happened, stressing the

importance of telling the truth. Jessica said appellant took her

upstairs where he undressed her, and both licked and fingered

her vagina. Jessica then described how appellant pulled out

his “ding dong” and “slapped” it real fast. Jessica said she ran

downstairs but appellant followed. In the kitchen, he placed

her on the floor and once again licked her vagina. Jessica said

appellant stopped only when his wife came home.

Ultimately, Jessica ended up at the Air Force Office of

Special Investigations (AFOSI) for a videotaped interview on

February 1, 1993. Agent Chambers, the interviewing agent,

spent 20-30 minutes establishing “rapport” with Jessica

which he did not tape. However, once he started asking

questions, he started taping. At Agent Chamber’s request,

Jessica explained the difference between a “good” and “bad”

touch, and between the truth and a lie. Jessica then recounted

the incident with appellant much the same as she told her

mother. Agent Chambers asked only one leading question, if

22a

appellant showed her his “ding dong.” Jessica replied that

appellant “spanked it” and “played with it.”

On February 2, 1993, a sexual assault nurse examiner

interviewed Jessica who again recounted her incident with

appellant. The nurse found an injury to Jessica’s vagina

consistent with digital penetration and a healing tear or fissure

to her anus.

Jessica appeared as a witness at the pretrial investigation

convened under Article 32, Uniform Code of Military Justice.

10 U.S.C. § 832. However, she refused to answer questions.

Based on Agent Chambers’ rapport with Jessica, the Article

32 investigating officer had Agent Chambers question Jessica

at the AFOSI interview room so Jessica would be in familiar

surroundings. All parties viewed the questioning from an

adjoining room and could submit questions, and Jessica’s

testimony was videotaped. She once again gave a consistent

description of the incident with appellant.

At trial, Jessica, now age 5, appeared as a witness at an

evidentiary hearing but refused to answer any questions. See

Article 39(a), UCMJ, 10 U.S.C. § 839(a). The military judge

declared her unavailable for hearsay statement purposes. See

Mil.R.Evid. 804(a). The prosecutor then moved to admit the

February Ist videotaped interview between Jessica and the

AFOSI agent.

In support of his motion, the prosecutor called Dr. Ebert,

a forensic psychologist and attorney, who had reviewed the

available evidence and interviewed Jessica. Dr. Ebert testified

Jessica could not testify effectively for either side through any

means of questioning. However, Dr. Ebert had also reviewed

Jessica’s videotaped interview with Agent Chambers. Dr.

Ebert believed the language and physical expressions that

Jessica used during the interview originated with her instead

23a

of others, and the sexual acts she described were not in the

common experience of a 4-year-old.

After reviewing the tape himself, the military judge

reached the same conclusions as Dr. Ebert, finding “no

evidence of suggested answers, rehearsed answers, or

inappropriately leading questions.” The judge admitted the

videotaped interview with Agent Chambers as residual

hearsay under Military Rule of Evidence (Rule) 804(b)(5).

The judge also admitted Jessica’s initial statements to her

mother on January 22nd as statements of physical condition

and for medical treatment under Rules 803(3) and (4),

respectively. However, the military judge declined to admit

any of Jessica’s other hearsay statements or her videotaped

Article 32 testimony.

THE RESIDUAL HEARSAY

Appellant's Argument

Appellant does not contest the judge’s ruling admitting

Jessica’s initial statements to her mother, but focuses on her

videotaped interview with Agent Chambers. He argues we

should direct a hearing where the government must show by

“clear and convincing evidence” that Jessica’s interview was

not tainted by any improper investigative techniques Agent

Chambers may have used, such as not videotaping the

“rapport” session. Cf. State v. Michaels, 136 N.J. 299, 642

A.2d 1372 (1994) (reversing child sexual abuse convictions

based on “highly improper,” “coercive,” and “unduly

suggestive” investigative interview techniques which tainted

children’s in court testimony and ordering “taint” hearing).

Appellant also urges us to adopt definitive procedural

safeguards for pretrial interviews of young children which

24a

must be complied with as a predicate to the admission of a

child victim’s residual hearsay statement. We decline

appellant’s invitation to legislate and, instead, follow

established case law.

Procedural Safeguards

As a matter of federal constitutional law, the United

States Supreme Court has rejected any formalistic checklist

for investigative interviews of child sexual abuse victims as a

condition precedent to admitting a victim’s statement under

the residual hearsay rule. Instead, the Court has focused on

whether the statement has “particularized guarantees of

trustworthiness” surrounding its making “which render the

declarant particularly worthy of belief.” Jdaho v. Wright, 497

U.S. 805, 819-20, 110 S.Ct. 3139, 3148-49, 111 L.Ed.2d 638

(1990).

Such “guarantees of trustworthiness” include, but are not

limited to, spontaneity, consistency, terminology unexpected

of a child of similar age, lack of motive to fabricate, and the

mental state of the declarant, based on the totality of

circumstances. When these “guarantees” are present, the

statement passes muster under the Confrontation Clause of the

Sixth Amendment even though the declarant does not testify

at trial under the rigor of cross-examination. /d.

The military’s residual hearsay rule for an unavailable

declarant tracks the Supreme Court’s guidance. See

Mil.R.Evid. 804(b)(5). The hearsay statement must have

“circumstantial guarantees of trustworthiness” equivalent to

long recognized, or “firmly rooted,” hearsay exceptions.

United States v. Ureta, 41 M.J. 571, 575-76 (A.F.Ct.Crim.

App.1994) and cases cited therein. Even if it passes such

reliability muster, the statement is admissible only when (1)

offered as evidence of a material fact, (2) more probative on

25a

the point for which it is offered than any other evidence

reasonably obtainable, and (3) its admissibility serves the

interests of justice. Mil.R.Evid. 804(b)(5).

Standard of Review

[1, 2] In deciding whether a military judge erred in

admitting a child’s statement under our residual hearsay rule,

we use an abuse of discretion standard. In applying that

standard, we generally accept the military judge’s findings of

fact unless they are unsupported by the evidence or are clearly

erroneous. United States v. Pollard, 38 M.J. 41, 49 (C.M.A.

1993); Ureta; 41 M.J. at 575. Where the military judge’s

findings are silent or clearly erroneous, we may exercise our

statutory discretion under 10 United States Code Section

866(c) and find the facts ourselves. Ureta, 41 M.J. at 575.

Discussion

[3] The materiality of Jessica’s statement, its probative

value, and its contribution to the interests of justice are not in

issue—its reliability is. We have independently reviewed

Jessica’s videotaped interview, as well as the testimony of

Agent Chambers. We conclude the military judge’s factual

findings are not clearly erroneous, and he did not abuse his

discretion in admitting the evidence.

First, Jessica was “functionally unavailable” as a witness

for residual hearsay analysis. United States v. Martindale, 30

M.J. 172, 173 (C.M.A.1990). In this regard, defense counsel

did not request to call Jessica to the witness stand in front of

the members so they could judge her demeanor for credibility

purposes or otherwise assert appellant’s Sixth Amendment

right to confront his accuser. See id. at 175 n. 2.

Second, in the videotape, Jessica used a young child’s

language to describe sexual acts not within the common

26a

experience of a 4-year-old. Third, Agent Chambers adequately

explained his failure to videotape the “rapport session,” and

Jessica’s description of the sexual acts was not prompted by

leading questions. Fourth, appellant did not offer any

plausible motive for Jessica to fabricate such a sordid story,

and like the military judge, we find none. See Pollard; Ureta;

compare United States v. Lyons, 36 M.J. 183 (C.M.A.1992)

(not error to admit videotaped interview) with United States v.

Moreno, 36 M.J. 107, 120—121 (C.M.A. 1992) (error to admit

videotaped interview). Consequently, Jessica’s statement

possessed circumstantial guarantees of trustworthiness.

However, we do not encourage investigators to

selectively videotape their contact with child witnesses—all

of the interview should be taped, including “rapport” building

sessions. In a closer case, an investigator’s failure to tape an

initial “rapport” session could be the scale-tipper.

Taint Hearing and Clear and Convincing Standard

[4] Appellant’s argument for a “taint” hearing is not a

novel one for this Court. In United States v. Geiss, 30 M.J.

678 (A.F.C.M.R.), pet. denied, 32 M.J. 45 (C.M.A.1990), we

rejected the argument that the prosecution had to prove by

clear and convincing evidence that a 14-year-old accuser’s

in court testimony was not the result of suggestive or

coercive pretrial interviews. Instead, we held that the

evidence of the suggestive or coercive nature of the

interview went to the credibility of the child’s testimony and

not its admissibility.

Today, we reaffirm our holding in Geiss. Of course, here,

we are not dealing with the impact of pretrial questioning on a

child witness’s in court testimony as in Geiss. Rather, we are

concerned with the particularized, or circumstantial,

guarantees of trustworthiness of a child’s out-of-court

27a

statement. As already discussed, suggestiveness and

coerciveness factor in to the totality of the circumstances

equation—they are not “the be-all and end-all here.” William

Shakespeare, Macbeth, act 1, sc. 7.

REMAINING ISSUES

[5, 6] Appellant did not object to the nurse examiner’s

testimony that Jessica’s injuries were consistent with sexual

abuse. Consequently, appellant forfeited the issue, and we do

not find plain error. Mil.R.Evid.103(a)(1); see United States v.

Prevatte, 40 M.J. 396, 397 (C.M.A.1994); United States v.

Banks, 36 M.J. 150, 160 (C.M.A.1992); United States v.

Suarez, 35 M.J. 374 (C.M.A.1992). Likewise, appellant now

complains about the prosecutor’s closing argument but did not

object at the time. We find the error forfeited and no plain

error. R.C.M. 919(c); United States v. Edwards, 35 M.J. 351

(C.M.A.1992).

[7] Finally, we do not find appellant’s sentence to a

dishonorable discharge is cruel and unusual punishment or too

severe even though he completed more than 20 years of active

duty, which made him eligible for retirement. See United

States v. Lee, 43 M.J. 518 (A.F.Ct.Crim.App. 1995); United

States v. Smith. 28 M.J. 863 (A.F.C.M.R.), pet. denied, 28

M.J. 455 (C.M.A. 1989).

Accordingly, the findings and sentence are correct in law

and fact, and on the basis of the entire record, are

AFFIRMED.

Judges BECKER and MORGAN concur.