Petition for Writ of Certiorari — Hollis v. United States

’ \ ~

\ Supreme Court. U.S.

C , FILED

02 681 ocT 222002

No. OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

October Term, 2002

MARK K. HOLLIS,

JOURNALIST FIRST CLASS, UNITED STATES NAVY

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Responden..

Petition for a Writ of Certiorari to the

Un ted States Court of Appeals for the Armed Forces

PETITION FOR A WRIT OF CERTIORARI

ERIC BRADLEY STONE

Lieutenant Colonel

U.S. Marine Corps

Navy-Marine Corps Appellate

Review Activity

716 Sicard Street, SE, Suite 1000

Washington Navy Yard, D.C. 20374

(202) 685-7088

Counsel for Petitioner

QUESTION PRESENTED

Should the medical hearsay exception

divest a criminal accused of his Sixth

Amendment Confrontation Clause right

when the doctor is acting primarily as a

criminal investigator rather than as a

physician?

TABLE OF CONTENTS

Questions Presented

Table of Contents

POPSET EH HEHEHE EEE EERE

CRORE HEHEHE EEE ETE E EE EEED

Opinions Below

Jurisdiction

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Constitutional Provision and Military

Rule of Evidence Involved

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Statement of the Case

I. Statement of the Facts

II. Proceedings Below

Reasons for Granting the

Petition

POSSE HEHEHE HEHEHE EH EE EEE EET HE EE EEE HEHEHE EER EEEEE

SOSH HEHEHE ESE EEEEE HEHEHE EEE EEE EEE EEE EE EEEES

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COCO eee HEEB E EEE EE

POSSE EEE EEE HEHEHE EHH EEE EEE EEE EEE EEE

POSSE HEHEHE ERE EEE EEE EEE E EEE EEE HEHEHE

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SAF EN AIR

TABLE OF AUTHORITIES

Cases

United States Supreme Court

California v. Green, 399 U.S. 149 (1970) oo .. 13

Idaho v. Wright, 497 U.S. 805 (1989) oo. 9

Lilly v. Virginia, 527 U.S. 116 (1999) oo... 13, 21

Maryland v. Craig, 497 U.S. 836 (1990) 13

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White v. Illinois, 502 U.S. 346 (1992)

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United States Court of Appeals for the Armed Forces

and Court of Military Appeals

United States v. Armstrong, 36 M.J. 311 (C.M.A.

Er 15

United States v. Deland, 22 M.J. 70 (C.M.A.

a ERG 16

United States v. Hollis, 57 M.J. 74 (C.A.A.F.

Cee i lanatns 1,8

United States v. Marshall, 52 M.J. 578 (C.A.A.F.

CS EEG aS 13

United States v. Muirhead, 48 M.J. 527 (C.A.A.F

a isctnssnnns 13

United States v. Nelson, 25 M.J. 110 (C.M.A.

a csindsneshemnsonens 15

United States v. Welch, 25 M.J. 23 (C.M.A.

1987) 15

COOOSSOSSESSSSSHSSSHHSSSHSSHSHSSHHSSHSSHSHHSHSHSHSHSHSHHSSHHHSHHHSHHSHHSSHHHSHSHHSSOHOEDE

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Service Courts of Criminal Appeals

United States v. Hammer, 2002 CCA LEXIS 42

(A.F. Ct. Crim. App. February 25,2002) ss 13

United States v. Hollis, 54 M.J. 809 (N-M. Ct.

Crim. App. 2000)

SORES EEE HEHEHE EHH SHEE EEE EE HEHEHE HEHEHE EE

Federal Constituiton, Statute, and Rules

United States Constitution

U.S. CONST., amend VI 2,9, 10, 16, 21

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Federal Statute

28 U.S.C. § 1259(3)(2002) 2

SCORSESE ESET HEHEHE HEHEHE HEHEHE ESE E RE EEE

Military Rules of Evidence (M.R.E.), Manual for

Courts-Martial, United States (1998 ed.):

M.R.E. 803(4) 15

SHEESH EE EH EEE EEE EHH HEHEHE ETE HEHEHE EEE EEE

1V

In The

SUPREME COURT OF THE UNITED STATES

MARK K. HOLLIS

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

Mark K. Hollis petitions for a writ of certiorari to

review the judgment of the United States Court of

Appeals for the Armed Forces in his case.

OPINIONS AND ORDERS BELOW

The opinion of the United States Court of Appeals

for the Armed Forces in United States v. Hollis, 57

M.J. 74 (C.A.A.F. 2002), is located in Appendix A at

la-23a. The opinion of the United States Navy-

Marine Corps Court of Criminal Appeals, 54 M.J. 809

(N-M. Ct. Crim. App. 2000) is located in Appendix B

at 24a-47a.

JURISDICTION

The lower court granted review of Petitioner

Hollis’ case and affirmed his conviction for rape,

forcible sodomy, and indecent acts on July 23, 2002.

He invokes this Court’s jurisdiction under 28 U.S.C. §

1259(3)(2002).

CONSTITUTIONAL PROVISION AND MILITARY

RULE OF EVIDENCE INVOLVED

The Sixth Amendment to the United States

Constitution provides in pertinent part:

In all criminal prosecutions, the

accused shall enjoy the right . . . to

be confronted with the witnesses

against him.

Military Rule of Evidence 803(4), “Hearsay

exceptions; availability of declarant immaterial,”

found in Manual for Courts-Martial (M.C.M.), United

States (1998 ed.), Part III, and reprinted in relevant

part in Appendix U, provides:

The following are not excluded |

by the hearsay rule, even though

the declarant is available as a

witness:

ok * ok

(4) Statements for purposes of

medical diagnosis or treatment.

Statements for purposes of medical

diagnosis or treatment and

iad

described medical history, or past

or present symptoms, pain, or

sensation, or the inception or

general character of the cause of

external source thereof insofar as

reasonably pertinent to diagnosis

or treatment.

STATEMENT OF THE CASE

I. Statement of the Facts

Petty Officer Hollis reported for duty at the U.S.

Naval Support Activity, Naples, Italy while his

estranged wife and two daughters remained in

Arizona. His daughters, J.H, then five years old, and

R.H., then three years old, remained in the custody of

their mother until they joined Petty Officer Hollis in

Italy in 1996. Ms. Kathy Robie, a civilian, escorted

J.H. and R.H, to Italy and began employment as their

live-in nanny. Ms. Robie had worked with Petty

Officer Hollis’s mother for three years and viewed the

nanny job as an opportunity to learn about the

culture and the people of Italy.

Ms. Robie’s relationship with Petty Officer Hollis

slowly deteriorated. Ms. Robie testified that she had

paid for the plane tickets to fly the girls to Italy by

liquidating her savings and retirement accounts. In

return, she claimed that Petty Officer Hollis didn’t

treat her well. Their relationship came to an end

when Petty Officer Hollis purchased her a plane

ticket back to the United States.

On August 11, 1997, about ten days after receiving

her ticket, Ms. Robie called Ms. Lyn Flahardy of the

Navy Family Service Center, Naples, Italy, and

reported her suspicion that J.H., then six years old,

had been sexually abused the previous evening.

Following standard protocol, Mrs. Flahardy then

contacted the Naval Criminal Investigative Service

(NCIS); a_ staff pediatrician at the U.S. Naval

Hospital, Naples, Lieutenant (Dr.) Steven J. Novek,

Medical Corps, U.S. Navy; and the Family Service

Center’s child psychologist, Dr. Michele Bieraugel.

NCIS Special Agent (SA) Kevin B. Hutson and his

supervisor were immediately dispatched and they

drove J.H., R.H., and Ms. Robie to the U.S. Naval

Hospital, Naples, Italy. At the hospital, Dr. Novek

proceeded to examine J.H. in the presence of SA

Hutson, Mrs. Flahardy, and Hospitalman Third Class

(HM3) Laura Rodriquez-Calderon. Dr. Novek’s final

conclusion was that the physical exam was “highly

suspicious for abuse but not conclusive.” SA Hutson

and Mrs. Flahardy interviewed J.H. afterwards at the

NCIS office.

In a sworn statement made that same afternoon

Petty Officer Hollis explained that J.H. had been

sexually abused while living with her mother in

Arizona. Petty Officer Hollis stated that the abuser

was a boy named Marcus, the son of her mother’s

boyfriend. Petty Officer Hollis further stated that

because he wanted to “assess the impact of what had

transpired in Arizona,” he role-played with J.H. for a

period of about three months. Petty Officer Hollis

stated that his role-playing consisted of talking to

J.H. about what may have happened to her, and

asking her to show him what had happened to her.

Ms. Flahardy asked Dr. Bieraugel, the Family

Service Center child psychologist, to conduct an

assessment of J.H. and Petty Officer Hollis. Dr.

Bieraugel interviewed J.H. and Petty Officer Hollis on

August 14, 1997 and reviewed Dr. Novek’s medical

report. J.H. specifically denied any fellatio or digital

penetration, and Petty Officer Hollis explained his

attempts at role-playing with J.H. Dr. Bieraugel’s

initial finding was that J.H. had been sexually

abused, but the perpetrator’s identity was unclear.

She stated that it was possible that Petty Officer

Hollis’ role-playing had confused J.H., who could have

believed the role-playing was sexual activity, and

confused the role of Petty Officer Hollis with that of

Marcus. At trial however, Dr. Bieraugel, testified

that “after repeated questions by many people,” she

did not believe J.H. was transferring memories of

prior abuse onto her father.

Captain (Dr.) Barbara Craig, Medical Corps, U.S.

Navy, is a pediatrician at the National Naval Medical

Center, Bethesda, Maryland, and also a medical

consultant for the Naval Criminal Investigative

Service, the Department of the Navy, and the

Department of Defense for child abuse and neglect.

Less than two weeks after Dr. Bieraugel’s initial

assessment that J.H. had been sexually abused and

that the perpetrator’s identity had been unclear, the

trial defense counsel contacted Dr. Craig. He

requested her assistance in reviewing the evidence

available and in evaluating the children. She was

specifically tasked with determining whether the

prior abuse occurred and whether J.H. had

transferred those memories to her father due to his

role-playing. -

Dr. Craig interviewed J.H. and R.H. on September

4, 1997 at the National Naval Medical Center,

Bethesda, Maryland. She again interviewed J.H. on

September 30, 1997 in the presence of a law

enforcement officer. The meeting on September 30,

1997 took place not in the Pediatric Center of the

Bethesda National Naval Medical Center, but rather

at the medical center’s NCIS office. During this

meeting no physical examination was conducted;

rather, Dr. Craig simply asked Julie questions. The

result of this interview was faxed directly to NCIS

agents in Naples, Italy. Dr. Craig testified that she

faxed the results of her interview with Julie to the

NCIS in Italy because she felt that her questioning

could be used as evidence. Dr. Craig interviewed J.H.

a third time on October 23, 1997, at the prosecutor’s

request, and _ purposefully elicited information

rebutting Petty Officer Hollis’ statement to NCIS

regarding his role-playing with J.H.

Prior to trial, the trial defense counsel moved to

exclude Dr. Craig’s anticipated testimony on behalf of

the Government regarding J.H. and _ R.H.’s

statements. The military judge did not rule on the

motion because he believed it was premature.

At trial, neither J.H. nor R.H. testified. Dr.

Novek, Dr. Craig, and Dr. Bieraugel testified for the

government. The trial defense counsel raised hearsay

objections to Dr. Novek’s testimony regarding J.H.’s

statements and also Dr. Craig’s testimony regarding

J.H. and R.H.’s statements. The military judge found

that all of the statements fell within the medical

hearsay exception set forth as Military Rule of

Evidence 803(4) and the objections were overruled.

Petty Office Hollis was found guilty of all charges

based primarily on the testimony of Dr. Novek and

Dr. Craig regarding what Julie and Rachel said to

them out of court.

II. Proceedings Below

The United States Navy charged Petty Officer

Hollis with raping, sodomizing, committing indecent

acts with, and taking liberties of, J.H. ‘on divers

occasions during July and August 1997. Petty

Officer Hollis elected to be tried by the military

judge alone and was tried on March 30 through April

2, 1998. Petty Officer Hollis entered pleas of not

guilty to all charges. The military judge convicted

Petty Officer Hollis of rape, sodomy, and indecent

acts. He sentenced Petty Officer Hollis to be reduced

to paygrade E-1, to forfeit all pay and allowances, to

be confined for a period of twenty two years, and to

be discharged from the service with a dishonorable

discharge. The convening authority approved the

sentence as adjudged.

On appeal before the United States Navy-

Marine Corps Court of Criminal Appeals, Petty

Office Hollis challenged his convictions as having

been based on an unconstitutional application of the

medical hearsay exception and several other issues

unrelated to this petition. The United States Navy-

Marine Corps Court of Criminal Appeals affirmed

the findings and the sentence as approved on

December 15, 2000. United States v. Hollis, 54 M.J.

809 (N-M. Ct. Crim. App. 2000).

On appeal before the Court of Appeals for the

Armed Forces of the United States, Petty Officer

Hollis again challenged the constitutionality of the

trial court’s application of the medical hearsay

exception. On July 23, 2002, the United States

Court of Appeals for the Armed Forces affirmed the

convictions and the sentence. United States v.

Hollis, 57 M.J. 74 (C.A.A.F. 2002). |

REASONS FOR GRANTING THE PETITION

The military courts of appeals are misapplying the

medical hearsay exception recognized and affirmed by

this Honorable Court in White v. Illinois, 502 U.S. 346

(1992), and as set forth in Military Rule of Evidence

803(4). In this case the military courts of review have

erroneously affirmed a conviction which was obtained

primarily on the basis of the hearsay statements of

two very young child witnesses that were obtained

and presented by medical doctors who were acting as

de facto government investigators. Moreover, several

statements from the girls, which were made explicitly

in preparation for trial, were presented at trial under

the medical hearsay exception in direct derogation of

military law.

This Honorable Court, in White v. Illinois,

determined that the medical exception to the general

prohibition against the admission of hearsay evidence

at trial is a “firmly-rooted” exception. White v.

Illinois, 502 U.S. 246, 355. As a firmly-rooted

exception, evidence admitted under the medical

hearsay exception does not implicate a defendant’s

right to confront the witnesses against him as secured

by the Sixth Amendment to the Constitution of the

United States. This is so because, as this Honorable

Court has determined, “a statement that qualifies for

admission under a ‘firmly rooted’ hearsay exception is

so trustworthy that adversarial testing can be

expected to add little to its reliability.” Jd. at 357

(quoting Idaho v. Wright, 497 U.S. at 820-821). A

defendant’s right to confront the witnesses against

him is not implicated by admission of medical hearsay

because it is long-accepted that a person seeking

medical treatment has a powerful interest in telling

the truth and, therefore, in-court cross-examination of

the patient is unlikely to yield additional useful

information. Further, as this Honorable Court also

observed in White v. Illinois, “a statement made in the

course of procuring medical services, where the

declarant knows that a false statement may cause

misdiagnosis or mistreatment, carries special

guarantees of credibility that a trier of fact may not

think [able to be] replicated by [later] courtroom

testimony.” White v. Illinois, 502 U.S. 346 at 356.

Current military practice, however, . as

demonstrated in Petitioner’s case, runs wide of the

reasoning and guidance of this Honorable Court, and

therefore afoul of the Sixth Amendment

Confrontation Clause. This is due to the dual nature

of the military pediatrician as both medical care

provider and investigator in cases of suspected child

abuse. The difficulty is that military pediatricians

are, by deliberate design and, in many cases, by

extensive legal training, also skilled criminal

investigators who actively seek to elicit and preserve

statements of injury causation and _ perpetrator

identity for the express purpose of presenting such

statements at criminal trials. Because this is true,

statements elicited by military pediatricians as to

injury causation and perpetrator identification

generally do not have the special guarantees of

trustworthiness upon which an accused may be

deprived of his or her Sixth Amendment

Confrontation right in that these statements may

have in the non-military setting. Examination of the

relationship between the military pediatrician and

the military prosecutor is helpful to understanding

why statements made to military pediatricians do not

have special guarantees of trustworthiness sufficient

to fall within the medical hearsay exception.

The Armed Forces of the United States have

medical corps, consisting of thousands of medical

providers, medical doctors, specialists, corpsmen,

nurses, etc., by which the medical needs of United

States service members are met in peace and in war.

10

In times of peace, the extra capacity of the medical

corps provides the farnilies of service members with

comprehensive medical treatment largely free of cost.

Except for having no cost, the provision of medical

services in the military appears to operate in the

same manner as civilian medical services. However,

unlike civilian medical doctors, military doctors are

commissioned officers, hold military rank, and are

accountable to military superiors. The military

superiors, typically also military doctors and

commissioned officers themselves, have tremendous

additional responsibilities beyond that of ensuring the

provision of medical care to service members and

their families. One such responsibility is the

maintenance of good order and discipline of military

units. In this regard, military doctors are often

compelled by their military superiors to take training

in forensics for the express purpose of being useful

witnesses in criminal trials. As a general proposition

this appears to be a valid and efficient use of military

resources. However, where the application of such

training is for the purpose of depriving the criminal

accused of his right to confront the witnesses against

him, the use violates the Constitution.

The Constitutional violation arises where the

military doctor serves, by design, in the dual roles of

pediatrician and criminal investigator. As a

pediatrician, the doctor seeks to discover the root

cause of the child’s complaint, injury, or disease. In

this regard, if the allegation or complaint leads to a

suspicion of child abuse, the pediatrician will inquire

as to the identity of the alleged abuser and the

11

veracity of the allegations, for the purpose of

removing the child from the source of injury or abuse.

If this investigation, which was initiated for the valid

medical purpose of removing the child from the source

of injury or abuse also leads to the uncovering of

illegal activity and or the identity of the abuser, the

information is reported to law enforcement. In due

course, if the abuser is ultimately prosecuted, the

pediatrician may be called to give testimony as to the

identity of the abuser or the source of the injuries in

the courtroom under the medical hearsay exception.

In the military, however, this typically is not the end

of, nor a proper description of, the involvement of the

pediatrician.

As was the case in Petty Officer Hollis’ trial, the

military pediatrician is often called upon to conduct

further interviews and medical examinations of the

alleged victims. In these subsequent interviews,

which are often made well after a confirmed diagnosis

of child abuse, the pediatrician seeks confirmation of

abuser identity from the child victim. Information as

to abuser identity gleaned from these post-diagnosis

interviews is often presented by the prosecution in

lieu of actual testimony by the child witness. In many

instances these additional interviews and medical

examinations are conducted by military pediatricians

who have been selected primarily, if not exclusively,

for their expertise in forensic pediatrics. In the case

at bar, Captain (Dr.) Barbara Craig, Medical Corps,

U.S. Navy, was selected for the subsequent interviews

and examination because, as other lower military

courts have noted, she is “a pediatrician well qualified

12

in the area of child_sexual abuse.” United States uv.

Hammer, 2002 CCA LEXIS 42, *19; c.f United States

v. Marshall, 52 M.J. 578 (C.A.A.F. 1999); c.f. United

States v. Muirhead, 48 M.J. 527 (C.A.A.F 1997).

Indeed, at trial Dr. Craig claimed that she has

testified “eighty to ninety” times in child abuse cases

and that she has received specific formal training in

the areas of “collecting forensic evidence” and

“testifying in court.”

"The central concern of the Confrontation Clause

is to ensure the reliability of the evidence against a

criminal defendant by subjecting it to rigorous

testing in the context of an adversary proceeding

before the trier of fact." Maryland v. Craig, 497 U.S.

836, 845 (1990). “When the government seeks to

offer a declarant's out-of-court statements against

the accused, . . ., courts must decide whether the

Clause permits the government to deny the accused

his usual right to force the declarant ‘to submit to

cross-examination, the “greatest legal engine ever

invented for the discovery of truth.”” Lilly v.

Virginia, 527 U.S. 116, 124 (1999) (citing to

California v. Green, 399 U.S. 149, 158 (1970)).

Established practice, in short, must confirm that

statements falling within a category of hearsay

inherently "carry special guarantees of credibility"

essentially equivalent to, or greater than, those

produced by the Constitution's preference for cross-

examined trial testimony. Jd. at 126 (citing again to

California v. Green, 399 U.S. 149, 356 (1970)).

13

Dr. Craig conducted subsequent interviews and a

subsequent medical examination in this case of J.H.

and an initial interview and examination of R.H.

These subsequent interviews by Dr. Craig of both J.H

and R.H. do not have the guarantees of

trustworthiness necessary to qualify for inclusion in

the medical hearsay exception identified by this

Honorable Court in White v. Illinois and Lilly v.

Virginia and set forth in the Military Rules of

Evidence, Rule 803(4). This is so because the

guarantees of trustworthiness identified by this Court

arise from the physician-patient relationship wherein

the physician and patient are wholly invested in the

gravely serious endeavor of healing the patient. In

this sober relationship it is presumed that the

medical provider is solely concerned with the health

of the patient. In the case of the military pediatrician

who has been asked to conduct subsequent interviews

for the purpose of gathering evidence for presentation

at trial, it cannot be said that the sole focus of the

physician-patient relationship is the health of the

patient and _ therefore the guarantees’ of

trustworthiness are indicted. Where the physician

becomes investigator, even where the change of roles

is transparent to the patient, the guarantees of

trustworthiness of the hearsay are impugned in that

the pediatrician has become an organ of the

prosecution no different than a police detective who

has convinced the patient that he is a doctor. In

other words, where the physician-patient relationship

is intermixed with that of a criminal investigator-

victim relationship, the guarantees arising from the

original relationship no longer exist in that the

14

questions asked by the now criminal investigator

pediatrician are being asked not for the purpose of

advancing the medical well-being of the patient, but

rather, towards the conviction of the alleged wrong-

doer. Thus, where a question does not have its origin

in the healing of the patient, the answers to such a

question, as well, cannot.

Military courts-martial require that two precedent

conditions be satisfied to make medical hearsay

statements admissible. First, the declarant must

have “some expectation of promoting his well-being

and thus an incentive to be truthful.” United States v.

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

484 U.S. 1061 (1988). Second, the statements must

be made by a declarant “for the purposes of [medical]

diagnosis and treatment.” Jd. at 112. Statements

are not limited only to medical doctors and

statements made to psychologists may satisfy the

rule. Jd. at 112-3; United States v. Welch, 25 M.J. 23,

24 (C.M.A. 1987). Statements made to prosecutors,

even when made in the presence of a treating

psychologist, do not satisfy the rule. United States v.

Armstrong, 36 MJ. 311, 313 (C.M.A. 1993).

Statements made by the victim to the prosecutor, not

by the victim to a doctor, physician, or other medical

person, even when made in the presence of such a

person, are considered statements made “in

preparation for trial” and are not admissible under

the exception. Jd. Moreover, the military courts of

appeal have stated “[wle will not condone efforts to

extend Mil.R.Evid. 803(4) to include the testimony of

a psychiatrist whose examination of an alleged victim

15

was more oriented to his testifying at trial than to

medical diagnosis or treatment.” United States v.

Deland, 22 M.J. 70,75 (C.M.A. 1986).

The court below erred in holding that the trial

judge did not abuse his discretion when he allowed

Dr. Craig and Dr. Novek to testify about what J.H.

and R.H. told them during their interviews. As set

forth below, the evidence strongly suggests that the

primary or concomitant purpose of the interviews was

to collect incriminating evidence. Because the

interviews were for, at best, a mixed purpose, that is

a purpose other than that of healing, they should not

be utilized in a manner which deprives an accused of

his Sixth Amendment Confrontation right. This is

particularly so where the other purpose of the

military pediatrician is to act in favor of, or worse yet,

on behalf of, the prosecutor.

The evidence gathering nature of the medical

interviews was obvious. An NCIS special agent

drove J.H. to the Naval Hospital in Naples, Italy, on

August 11, 1997 for the first examination. The

physician who examined J.H. that day was Dr.

Novek. The same agent who drove J.H. to the

hospital, NCIS SA Hutson, was present during Dr.

Novek’s entire initial “medical history” interview of

J.H. The record reveals that SA Hutson, who is not a

physician, but rather a criminal investigator, asked

J.H. questions during the supposed “medical” history

interview which was conducted prior to the physical

evaluation. The answers to SA Hutson’s questions

were intermixed in Dr. Novek’s final “medical” report.

16

At the conclusion of the interview Dr. Novek asked all

of the persons present, SA Hutson, a military family

services counselor named Lyn Flahardy, and a Navy

medical corpsman named Hospitalman Third Class

Rodriques-Calderone, whether or not any of them had

any further questions for J.H. The final report was

an amalgamation of five pages of notes taken by the

medical corpsman and two pages taken by Dr. Novek,

which included the answers to questions asked by SA

Hutson, a criminal investigator. At trial, Dr. Novek

admitted that not all statements made by J.H. were

recorded. Thus, in no way can it be said that the

statements of J.H. had the necessary guarantees of

trustworthiness to be admitted as a firmly-rooted

hearsay exception - (1) they were made to a physician

who was acting as an evidence gatherer, (2) several of

the questions were asked by a criminal investigator,

and (3) the record of the statements was incomplete.

Perhaps most telling as to the true evidence

gathering nature of the interview and examination of

J.H. by Dr. Novek, was Dr. Novek’s characterization

of its necessity. Dr. Novek informed Ms. Flahardy

that it was a “medical emergency” because the alleged

abuse had occurred the night before and that any

time abuse occurs within the last seventy two hours it

constitutes a medical emergency. No reason was

adduced at trial for the 72-hour limitation on the

“emergency” label, but it was clear, from the nature of

the evidence gathered and preserved by Dr. Novek,

that his concern was the gathering and preservation

of evidence. Thus, in reality, it was a legal or

“investigative emergency” in addition to whatever

medical emergency he may have had as a physician.

The next interview of J.H. and R.H. took place at

the request of the Petty Officer Hollis and for the

purpose of assisting the defense. On August 26, 1997,

trial defense counsel contacted Dr. Craig and asked

her to assist the defense by reviewing the evidence

and evaluating the children. Specifically, the defense

asked Dr. Craig to try to determine whether or not

prior abuse of J.H. and R.H. occurred at the hands of

a former neighbor, Marcus, and, if so, whether J.H.

was confusing the prior abuse with the role-playing of

her father. The record is clear that Dr. Craig was

working for the defense. Dr. Craig testified that she

understood the defense counsel’s request to be to

“clarify what was going on . . . whether something

might have happened with Marcus . . . there was

some confusion over Marcus versus her father .. . .”

There is no evidence in the record that defense

counsel was engaging Dr. Craig to provide medical

care or treatment to Petty Officer Hollis’ children. On

September 4, 1997, Dr. Craig met with J.H. and R.H.

and conducted interviews and physical exams of the

children. In accordance with the defense request, Dr.

Craig questioned J.H. about Marcus first. Dr. Craig

testified that J.H. did not want to talk about Marcus

and then Dr. Craig began to investigate the

allegations of abuse by Petty Officer Hollis which

allegedly occurred in Naples. Dr. Craig pursued

questioning J.H. about the allegations against her

father because J.H., she testified, seemed to be

forthcoming with the information. .On September 8,

18

1997, Dr. Craig wrote a letter stating, among other

things, that she concluded “by more than the

preponderance of the evidence . . . that [Petty Officer

Hollis} did indeed molest [J.H.] in the presence of

[R.H.].” The use of the legal language, “by more than

the preponderance of the evidence,” (indeed it is a

criminal evidentiary standard), belies the non-

medical nature of the interview. On September 12,

2002, Dr. Craig memorialized the results of her

interview and medical examination in a report which

stated in part that “a full report would be provided to

the authorities, both here and in Naples.” Thus, the

statements made to Dr. Craig were statements

gathered primarily for preparation for trial by the

defense, at the request of the defense, which in turn

means they were statements not “reasonably

pertinent to diagnosis or treatment.” Thus, the

statements fall outside the medical hearsay exception.

The next interview and examination occurred on

September 30, 1997. On that day, J.H.’s

grandparents called on Dr. Craig because J.H. wanted

to talk to her. Dr. Craig stated that she was still

working for the defense on the day that she saw J.H.

at her request. Ms. Jacquelyn O’Reilly, a social

worker with the Family Advocacy Program at Naval

Station, Washington, took notes for Dr. Craig. The

interview took place, not in a medical examination

room, but in an NCIS child interview room at the

National Naval Medical Center in Bethesda,

Maryland. NCIS Special Agent Sherri Brown was

present during the interview. NCIS Special Agent

Brown took notes during the interview which were

19

incorporated into Dr. Craig’s final report. The Special

Agent was then consulted to review the case and

made corrections and additions to Dr. Craig’s report.

Dr. Craig then faxed a copy of the report, as edited by

SA Brown, to the other NCIS agent assigned to the

case. Thus, while it can be said that this interview at

least had some medical genesis in that the “patient,”

J.H., had asked to speak with Dr. Craig, the interview

was fundamentally flawed as a possible medical

hearsay exception. First, the interview had all the

hallmarks of a criminal investigation. It was

conducted in an NCIS interview room in the presence

of a special agent who actively participated in the

questioning. As such the interview, on appearances

alone, loses its indicia and guarantees of

trustworthiness. Second, even if the statement didn’t

lose on appearances, because of the editorial input by

a criminal investigator into the final report, it cannot

be established which questions, if any, were asked for

medical purposes, and which were asked for

investigatory purposes.

On October 23, 1997, Dr. Craig saw J.H. a third

time because the prosecution asked her to interview

J.H. The record does not provide any evidence that

the prosecutor was authorized to obtain medical

treatment for J.H. During this interview Dr. Craig

elicited information pertaining to Petty Officer

Hollis’s assertions in his sworn statement to NCIS

agents on August 11, 1997. Dr. Craig also spoke with

J.H. about the possibility about having to testify in

the presence of her father regarding the allegations.

Based on J.H.’s expressed reluctance to testify,

20

allegedly motivated by fear of her father, Dr. Craig

recommended that J.H. testify by means of closed

circuit television monitoring. Predictably, however,

J.H. did not testify at trial. The nature of this

interview, i.e., having been at the request of the

prosecutor, testing the veracity of Petty Officer

Hollis’s exculpatory statements, testing whether or

not J.H. would serve well as a prosecutorial witness,

recommending to the prosecutor that she should not

appear, should render, beyond all doubt, that any

statements taken therein fall well-outside the

boundaries of the medical hearsay exception.

In summary, each of the three interviews in this

case were so riddled with prosecutorial intent and

action that they cannot be said to have arisen from

the physician-patient relationship and _ therefore

cannot "carry special guarantees of credibility"

essentially equivalent to, or greater than, those

produced by the Constitution's preference for cross-

examined trial testimony. Lilly v. Virginia, 527 U.S.

116, 126. Thus, the courts below have grossly

misinterpreted and misapplied this Honorable

Court’s explanation of the medical hearsay exception

and have violated Petty Officer Hollis’ Sixth

Amendment right to confront the witnesses against

him.

21

CONCLUSION

This petition for writ of certiorari should be

granted.

October 2002

Respectfully submitted,

ERIC BRADLEY STONE

Lieutenant Colonel

U.S. Marine Corps

Navy-Marine Corps

Appellate Review Activity

716 Sicard Street, S.E., Suite 1000

Washington Navy Yard, D.C. 20374

(202) 685-7290

Counsel for Petitioner

22

APPENDIX A

United States v. Hollis, 57 M.J. 74 (2002)

UNITED STATES, Appellee

v. Mark K. HOLLIS,

Journalist First Class U.S.

Navy, Appellant

No. 01-0337

UNITED STATES COURT

OF APPEALS FOR THE

ARMED FORCES

57 M.J. 74; 2002 CAAF

LEXIS 722

December 12, 2001, Argued

July 23, 2002, Decided

COUNSEL:

For Appellant: Lieutenant I. L. Paredes, JAGC,

USNR (argued and on brief); Captain Curtis M.

Allen, USMC.

la

For Appellee: Lieutenant Christopher J.

Gramiccioni, JAGC, USNR (argued and on brief);

Lieutenant William C. Minick, JAGC, USNR.

JUDGES:

GIERKE, J., delivered the opinion of the Court, in

which CRAWFORD, C.J., and BAKER, J., joined.

EFFRON, J., and SULLIVAN, S.J., each filed an

opinion concurring in part and in the result.

OPINIONBY:

GIERKE

OPINION:

Judge GIERKE delivered the opinion of the

Court.

A military judge sitting as a general court-

martial convicted appellant, contrary to his pleas, of

rape, forcible sodomy, and indecent acts, in violation

of Articles 120, 125, and 134, Uniform Code of

Military Justice, 10 USC $ § 920, 925, and 934,

respectively. The victim of the offenses was

appellant's five-year-old daughter, J.H. The

adjudged and approved sentence provides for a

dishonorable discharge, confinement for 22 years,

total forfeitures, and reduction to the lowest enlisted

grade. The Court of Criminal Appeals affirmed the

findings and sentence. 54 M.J. 809 (2002).

Before this Court, appellant has raised three

issues arising from the admission, over defense

2a

objection, of the testimony of two Navy medical

officers, Lieutenant (LT) Stephen Novek and

Captain (CAPT) Barbara Craig, relating statements

made by J.H. and her three-year-old sister, R.H.' For

the reasons set out below, we affirm.

' The granted issues are:

I. WHETHER THE LOWER COURT ERRED

WHEN IT AFFIRMED THE MILITARY JUDGE'S

DECISION TO ALLOW LT NOVEK AND CAPT

CRAIG TO PRESENT, OVER DEFENSE

OBJECTION, THE INADMISSIBLE HEARSAY

STATEMENTS OF J.H. AND R.H. TO THE

COURT-MARTIAL.

Il. WHETHER THE HEARSAY TESTIMONY

BY LT NOVEK AND CAPT CRAIG IS

INADMISSIBLE BECAUSE THE PRIMARY

PURPOSE OF THEIR INTERVIEWS WAS TO

COLLECT INCRIMINATING EVIDENCE

AGAINST APPELLANT.

Ill. WHETHER APPELLANT WAS DENIED

HIS RIGHTS TO CONFRONTATION AND DUE

PROCESS BY THE ADMISSION OF HEARSAY

STATEMENTS UNDER AN_- EXTENSIVELY

BROADENED FORM OF THE MEDICAL

TREATMENT HEARSAY EXCEPTION, WHICH IS

NOT A FIRMLY ROOTED HEARSAY EXCEPTION.

3a

The Evidence

In December 1995, appellant reported for duty at

the U.S. Naval Support Activity in Naples, Italy. His

estranged wife and two daughters remained in

Arizona until April 1996, when the two daughters

were escorted to Italy by Ms. Kathy Robie, who

stayed in Italy as their live-in nanny.

On August 11, 1997, Ms. Robie had a

conversation with J.H. that caused her to believe

appellant had sexually abused her. Ms. Robie

contacted the Family Services Center and told Ms.

Lyn Flahardy about her conversation with J.H. Ms.

Flahardy contacted LT Novek, a staff pediatrician

who had previously treated J.H. as a patient. Ms.

Flahardy told LT Novek that J.H. "had disclosed

alleged sexual abuse" and asked him to see her.

When Ms. Flahardy said that the most recent sexual

abuse was "last night," LT Novek responded that it

was a "medical emergency" and arranged to see J.H.

later in the day "for a medical evaluation for alleged

child sexual abuse." Ms. Flahardy and two agents

from the Naval Criminal Investigative Service

(NCIS) escorted Ms. Robie, J.H., and R.H. to the U.S.

Naval Hospital, Naples, where J.H. was examined by

LT Novek.

Ms. Flahardy, NCIS Special Agent (SA) Kevin

Hutson, and Hospitalman Third Class Laura

Rodriguez-Calderon were present during LT Novek's

meeting with J.H. SA Hutson testified that LT

Novek told him "he would be conducting a physical

4a

examination of the girl, ... and desired to interview

her."

LT Novek began by talking to J.H. about the

importance of telling the truth, in order "to help her

to understand that it was important that she explain

things clearly and tell us the truth about what had

gone on." LT Novek testified that J.H. knew who he

was because he had previously treated her.

Notwithstanding their previous contact, LT Novek

told J.H. that he was a doctor and that he "was going

to try to help her to figure out what had happened

and to help her if she needed help." LT Novek

testified that he knew J.H. understood he was trying

to make her better, because "she was nodding and

she recognized [him] from prior visits."

LT Novek then took a medical history, which he

defined as "a series of questions that the physician

asks of the patient to try to understand what is

wrong with the patient and how to help the patient

and how to treat the patient." During the medical

history, J.H. told LT Novek that appellant had been

touching her "private parts" and that it "hurt a lot."

She also told LT Novek that appellant "used his

hand to put medicine on in front and that he used

his private part to touch her from behind and she

pointed to her anus."

Toward the end of LT Novek's medical history

interview, after J.H. had disclosed appellant's abuse,

he invited the other persons present to ask

questions. SA Hutson asked J.H. if appellant "said

5a

this was a secret." She responded, "He said not to

tell anybody, because he would go to jail." SA Hutson

also had J.H. identify the partially used tube of

Westcort cream prescribed to R.H. but used on J.H.

by appellant. LT Novek testified that he asked all

other questions.

After completing the medical history, LT Novek

performed a complete physical examination of J.H.

that included a_ detailed genital and anal

examination. He identified vaginal injuries that

were consistent with digital or penile penetration.

He characterized his findings as "highly suspicious

of abuse but non-confirmatory." In his written

“progress note," LT Novek prescribed a plan that

provided for treatment by a clinical psychologist.

In August 1997, appellant's trial defense counsel

asked CAPT Barbara Craig, an _ experienced

pediatrician at the National Naval Medical Center in

Bethesda, Maryland, to evaluate J.H. and R.H., who

were then six years old and four years old,

respectively. CAPT Craig contacted the girls’

grandparents and arranged a medical evaluation on

September 4, 1997.

When CAPT Craig contacted the grandparents,

she told the grandfather that "he needed to prepare

the children for coming in by telling them they were

coming to see a physician, a pediatrician, that [she]

was a doctor, that [she] helps kids, and that it's

always important to tell the truth to the doctor when

children come in for a checkup." When CAPT Craig

6a

first met J.H. and R.H. at the hospital, she explained

that she was a "kids' doctor," that she "helps kids,"

that she would be asking a lot of questions, and that

she wanted them to answer “as best they could." She

was wearing a white coat and had a stethoscope

around her neck. J.H. addressed CAPT Craig as

"doctor."

Trial defense counsel had asked CAPT Craig to

inquire about the possibility that J.H. had been

abused by the son of her mother's boyfriend while

she was living in Arizona with her mother. CAPT

Craig testified that J.H. said the boy had done

something bad or wrong to her and that she did not

want to talk about it. When CAPT Craig began to

ask questions about what happened in Italy, J.H.

began shouting "no, no," and asked her to stop

asking questions about it. J.H. told CAPT Craig that

“something bad had happened with her dad," that "it

happened in the bedroom in Italy, that it happened

at nighttime, that it happened in the bed that she

slept in with her father and her sister, [R.H.]." J.H.

said that "her father told her not to tell about what

was happening between her father and herself in

Italy because he would go to jail." At this point, J.H.

was "heaving, crying, yelling the answers." She was

saying, "I just wanted it to stop, no, no." She was

"yelling the answers ..., with her head in the corner

and kind of rocking back and forth." CAPT Craig

terminated the interview without completing the

medical history, because of J.H.'s emotional state.

7a

CAPT Craig was able to conduct a _ physical

examination of J.H. on September 4. She found

vaginal injuries consistent with penile or digital

penetration. CAPT Craig also examined R.H. on

September 4. She explained that she examined R.H.

"because frequently children that are in the same

home and in the same surroundings or conditions of

the child who has been physically or sexually abused

might suffer a physical or emotional trauma either

by having the abuse occur to them or they can be

equally traumatized by witnessing the abuse happen

to someone else."

R.H. was four years and ten months old at the

time of the examination. CAPT Craig explained to

R.H. that she was a pediatrician, "and that's a doctor

who takes care of tummy aches and rashes or

whatever." R.H. interrupted her and blurted out,

"I've had medicine for a rash before." CAPT Craig

explained the importance of telling the truth, and

R.H. told CAPT Craig that she understood. CAPT

Craig testified that, in her opinion, R.H. knew she

was a doctor and understood the need to tell her the

truth.

During the medical history, R.H. told CAPT

Craig that while sleeping in the same bed with

appellant and J.H., she saw and heard appellant ~

doing "yucky" and "bad" things to J.H. She saw

appellant "opening [J.H.'s] privates with his hands,"

forcing J.H. to "eat" something in the middle of the

night in bed, and kneeling over J.H. as she lay in

8a

bed. R.H. said that she heard J.H. cry and ask

appellant why he "does this" to her and not to R.H.

CAPT Craig talked with J.H. again on September

30, this time at J.H.'s request. J.H. remembered

CAPT Craig and greeted her by saying, "Hello, Dr.

Craig." J.H. indicated that she understood this

second interview was to enable CAPT Craig to help

her. During this interview, J.H. described acts of

rape and said that it happened "a zillion times." She

said that appellant kissed her on the mouth. She

described being forced to perform fellatio on

appellant, and she described appellant's digital

penetration of her anus.

CAPT Craig recommended counseling for both

J.H. and R.H. For J.H., she "strongly" recommended

counseling consisting of "longer-term therapy."

Over defense objection, the military judge

admitted the testimony of LT Novek and CAPT

Craig under Mil. R. Evid. 803(4), Manual for Courts-

Martial, United States (2000 ed.).° The defense

objected to LT Novek's testimony as inadmissible

hearsay, on the ground that there was an inadequate

showing that J.H. “understood what benefit she was

gonna gain from talking to this roomful of people."

The defense also objected that LT Novek's testimony

and written report were incomplete because the

report did not include the questions preceding J.H.'s

* All Manual provisions cited are identical to those in

effect at the time of appellant's court-martial.

9a

statements and "some portions of what happened in

that interview [were] not recorded in this history."

With respect to LT Novek's testimony, the military

judge stated:

I specifically state for the record that the court has

heard ample evidence that [J.H.] was aware of the

circumstances for which she was at the doctor's

office. She recognized the doctor from prior visits for

medical treatment. The doctor and his staff advised

her that she was there for possible medical

treatment and to determine what was wrong with

her so they could get treatment, and what had

happened so she could be treated. No evidence to the

contrary that she didn't understand that. In fact, the

doctor indicated that in his opinion, she did, and his

opinion is obviously based on previous exposure to

her also.

With respect to R.H.'s statements to CAPT Craig,

the military judge stated:

I find that [R.H.] understood that she was talking to

a doctor that helped children. She understood the

need to tell the truth and based on Dr. Craig's

testimony that she understood that it was in her

best interest to be truthful and that those truthful

answers were necessary for any type of treatment,

whether it was physical or counseling. Even though

[R.H.] probably didn't know what the word

counseling meant, but Dr. Craig said talk to for -- to

make you better or words to that effect. Therefore, I

10a

find that even though it is hearsay, it comes within

M.R.E. 803(4), as medical exception to the hearsay

rule.

Finally, with respect to J.H.'s statements tu

CAPT Craig, the military judge stated:

I find based on Dr. Craig's testimony that the

statements made by [J.H.] to Dr. Craig on the 30th

of September 1997 were for the purpose of promoting

her well-being and receiving medical treatment or

diagnosis, that [J.H.] knew she was talking to a

medical professional. In fact, she greeted her as Dr.

Craig, and she understood the need for truthful

answers, that they were necessary for her

treatment|.]

The prosecution's case-in-chief included the

testimony of LT Novek and CAPT Craig relating the

statements of J.H. and R.H., and physical evidence

of J.H.'s vaginal injuries. It also included appellant's

statement to SA Hutson, in which he admitted

touching J.H.'s vaginal area and asserted that he

was role playing in an effort to determine what had

happened between J.H. and her mother's boyfriend's

son. Finally, the prosecution case _ included

deoxyribonucleic acid (DNA) evidence identifying 11

semen stains on J.H.'s nightgown as having come

from appellant. Neither appellant nor his daughters

testified.

lla

Discussion

Appellant contends that there is no evidence J.H.

understood she was being treated for sexual abuse or

that she would receive any medical benefit for any

ailments when LT Novek and CAPT Craig

questioned her. He argues that the purpose of the

interviews was to collect incriminating evidence and

to smuggle in hearsay testimony using medical

professionals acting in complicity with law

enforcement officials. He asserts that admitting his

daughters’ statements under the medical exception

violated his right to confront the witnesses. Finally,

he asserts that he was denied due process when the

Government, in bad faith, failed to preserve

potentially material evidence by failing to videotape

or audiotape the interviews of J.H. and R.H.

The Government argues that the military judge's

decision to admit the statements of J.H. and R.H.

was not an abuse of discretion and that his findings

of fact were not clearly erroneous. The Government

asserts that the purpose of the interviews was to

elicit information for medical diagnosis or treatment,

not prosecution. The Government asserts that

appellant waived any issue about the availability of

J.H. and R.H. by not raising it at trial. It argues that

even if the availability issue was not waived, the

right of confrontation was satisfied because the

medical exception is a firmly rooted exception to the

hearsay rule. Finally, the Government argues that

there has been no showing of bad faith on the part of

LT Novek and CAPT Craig, and that there is no

12a

requirement that medical professionals use

videotapes or audiotapes during medical

examinations.

Standard of Review

A military judge's decision to admit evidence is

reviewed for abuse of discretion. United States uv.

Sullivan, 42 M.J. 360, 363 (1995). We review a

military judge's factfinding under the clearly

erroneous standard of review, and conclusions of law

we review de novo. Id. We will reverse if the findings

of fact are clearly erroneous or if the military judge's

decision is influenced by an erroneous view of the

law. Id.

Confrontation

The "medical exception" is a firmly rooted

. exception to the hearsay rule, and, as such, it

satisfies the constitutional right of confrontation.

White v. Illinois, 502 U.S. 346, 356, 116 L. Ed. 2d

848, 112 S. Ct. 736-57 (1992). Thus, there is no need

to establish that the declarant is unavailable as a

witness.

Amissibility under Medical Exception

Under Mil. R. Evid. 803(4), "statements made for

purposes of medical diagnosis or treatment and

described medical history" are not excluded by the

hearsay rule, even if the declarant is available. The

proponent of evidence offered under the medical

exception must establish that (1) the statements

were made for the purposes of medical diagnosis or

13a

treatment, and (2) that the declarant made the

statement "with some expectation of receiving

medical benefit for the medical diagnosis or

treatment that is being sought." United States v.

Edens, 31 M.J. 267, 269 (CMA 1990) (internal

citation omitted). "The key factor in deciding if the

second prong is met is 'the state of mind or motive of

the patient in giving the information ... and the

expectation or perception of the patient that if he or

she gives truthful information, it will help him or

her to be healed." United States v. Kelley, 45 M.J.

275, 279 (1996) (internal citation omitted). The

determination whether the patient has the requisite

state of mind is a preliminary question of fact under

Mil. R. Evid. 104(a), and, as such, it will be

overturned on appeal "only if clearly erroneous." Jd.

at 280.

A child-victim's expectation of receiving medical

treatment need not be established by the child-

victim's testimony. It may be established by the

testimony of the treating medical professionals. See

United States v. Quigley, 40 M.J. 64, 66 (CMA 1994);

Edens, supra 31 M.J. at 268. Although a medical

doctor's determination that the child understood the

need to be truthful can be an important component

of the military judge's inquiry, the record must

support the military judge's determination that the

child had the _ requisite. understanding and

expectation of a medical benefit to satisfy the

subjective prong, even if the military judge relies on

the doctor's testimony to establish the factual

l4a

predicate for this determination. See United

States v. Williamson, 26 M.J. 115, 118 (CMA 1988),

quoted in Edens, supra 31 M.J. at 269 ("Although

there may be some relaxing of the quantum of proof

in those situations where a child is being treated, the

facts and circumstances must support a finding that

both prongs of the test were met.").

We hold that the military judge did not abuse his

discretion by permitting LT Novek to testify about

J.H.'s responses to his questions during his medical

history interview. J.H. was taken to LT Novek's

office at the Naval Hospital shortly after making an

emotional disclosure to her nanny. J.H. had been

treated previously by LT Novek and knew that he

was a doctor. She indicated that she understood the

need for truthful answers so that LT Novek could

determine what had happened, in order to treat her.

Alihough appellant asserts that LT Novek was

acting in complicity with law enforcement personnel

and not for medical reasons, the record shows the

contrary. LT Novek told Ms. Flahardy he needed to

see J.H. immediately because it was a medical

emergency. When J.H. arrived at his office, LT

Novek told SA Hutson that he wanted to interview

J.H: The impetus for the interview was LT Novek's

concern about a medical emergency, not a request

from SA Hutson for investigative assistance.

J.H.'s responses to the two questions asked by SA

Hutson were not admissible under the medical

exception. See United States v. Armstrong, 36 M.J.

15a

311, 313 (CMA 1993) (responses to trial counsel's

questions not admissible under Mil. R. Evid. 803(4)).

In United States v. Siroky, 44 M.J. 394, 400 (1996),

this Court recognized the responsibility of a military

judge to scrutinize each segment of a statement

offered under Mil. R. Evid. 803(4) to ensure that it

satisfies both prongs of the test for the medical

exception. We are satisfied, however, that the

admission of LT Novek's testimony relating J.H.'s

responses to SA Hutson's two questions was

harmless beyond a reasonable doubt in light of the

other evidence of appellant's guilt.

We also hold that the military judge did not

abuse his discretion by admitting CAPT Craig's

testimony. CAPT Craig examined the children, at

defense counsel's request, to determine if they had

been physically and emotionally traumatized. The

record reflects that J.H. knew CAPT Craig was a

medical doctor, that J.H. asked to see CAPT Craig

on September 30, that J.H. addressed CAPT Craig

as "Doctor Craig," and that J.H. knew CAPT Craig

needed truthful answers to help her.

Similarly, R.H. indicated that she knew CAPT

Craig was a doctor. R.H. demonstrated that she

knew doctors help’ children, spontaneously

announcing that a doctor had treated her skin rash.

R.H. told CAPT Craig that she understood the need

for truthful answers so that CAPT Craig could

"make [her] better or words to that effect." CAPT

Craig's professional assessment was that R.H. knew

16a

she was a doctor who helped children and that R.H.

understood the need to tell the truth.

Based on this record, we hold that the military

judge's preliminary findings of fact were not clearly

erroneous, and that he made his ruling based on a

correct understanding of the law. Accordingly, we

hold that, with the exception of LT Novek's

testimony relating J.H.'s responses to SA Hutson's

two questions, the military judge did not abuse his

discretion by permitting LT Novek and CAPT Craig

to testify about the victims’ statements to them

during their interviews. We further hold that the

admission of the portion of LT Novek's testimony

relating J.H.'s responses to SA Hutson's two

questions was harmless beyond a reasonable doubt

in light of the other evidence of appellant's guilt.

Failure to Preserve Evidence

Appellant's assertion that he was denied due

process by the failure to audiotape or videotape the

interviews of J.H. and R.H. is without merit for

several reasons. First, there is no rule requiring that

medical interviews be taped. Second, there is no

indication in the record that material evidence was

lost. To the contrary, the record reflects that the

evidence was carefully preserved by the meticulous

interview notes and diagnostic reports prepared by

the medical professionals involved. Third, there is

nothing in the record suggesting bad faith. See

Arizona v. Youngblood, 488 U.S. 51, 58, 102 L. Ed.

2d 281, 109 S. Ct. 333 (1988) ("We therefore hold

17a

that unless a criminal defendant can show bad faith

on the part of the police, failure to preserve

potentially useful evidence does not constitute a

denial of due process of law.").

Decision

The decision of the United States Navy-Marine

Corps Court of Criminal Appeals is affirmed.

CONCURBY:

EFFRON; SULLIVAN

CONCUR:

EFFRON, Judge (concurring in part and in the

result):

I agree with the majority opinion's conclusion

that J.H.'s statements to Drs. Novek and Craig were

properly admitted under Mil. R. Evid. 803(4). There

are sufficient indicia of J.H.'s subjective intent in the

record to show that she understood the purpose for

speaking with each doctor and, in return, expected to

receive a medical benefit as a result of those

communications. See __ M.J. at (12-14). However,

the record is less than clear as to the motivation of

her younger sister, R.H., in speaking to Dr. Craig.

The record does not demonstrate that R.H. (1)

perceived a link or otherwise understood that her

statements to Dr. Craig were for the purpose of

medical diagnosis or treatment; (2) believed she

needed to be helped, even in a general sense; or (3)

18a

expected to medically benefit from responding

truthfully when speaking with Dr. Craig.

We have held that "the key factor in deciding if

the second prong is met is 'the state of mind or

motive of the patient in giving the information ...

and the expectation or perception of the patient that

if he or she gives truthful information, it will help

him or her to be healed." United States v. Kelley, 45

M.J. 275, 279 (1996) (citation omitted). This

standard applies equally to adults and children. As

this Court made clear in United States ov.

Williamson, 26 M.J. 115 (CMA 1988), "Although

there may be some relaxing of the quantum of proof

in those situations where a child is being treated, the

facts and circumstances must support a finding that

both prongs of the test were met." Id. at 118, quoted

in United States v. Edens, 31 M.J. 267, 269 (CMA

1990).

In this case, the majority opinion relies entirely

on R.H.'s spontaneous statement, "I've had medicine

for a rash before," __ M.J. at (6), and the military

judge's finding, based on Dr. Craig's testimony, that

"even though [R.H.] probably didn't know what the

word ['Jcounseling['] meant, ... Dr. Craig said talk to

for -- to make you better or words to that effect," to

satisfy the test's ‘subjective prong. R.H.'s

spontaneous statement merely establishes that she

may have associated doctors with treating physical

ailments. It does not demonstrate that R.H. acted on

the belief that disclosing information about

appellant's abuse of her sister would enable Dr.

19a

Craig "to make [her] better." Cf. Olesen v. Class, 164

F.3d 1096, 1098 (8th Cir. 1999) (reversing where

physician merely explained "what was going to

happen" during the physical examination and no

evidence was presented to show the child-victim

understood revealing her abuser's identity was

important to diagnosis and treatment).

I agree with the majority that the fact R.H. may

not have known what the word "counseling" meant

does not, in and of itself, render her statements

inadmissible under the medical exception. However,

the burden remained on the prosecution to present

evidence establishing that R.H. understood she was

there to receive counseling services or, at minimum,

help in a general sense, although she may not have

known "counseling" was the term to describe the

treatment. United States v. Avila, 27 M.J. 62, 66

(CMA 1988) ("Unless it appears that the child knows

at least that the person is rendering care and needs

the information in order to help, the rationale for the

[medical] exception disappears entirely."); Kelley, 45

M.J. at 277, 280 (affirming where counselor

introduced himself as a "talking doctor" and "the

record supported the military judge's preliminary

findings of fact that [the six-year-old victim]

understood that Mr. Mills was trying to help her

deal with unpleasant thoughts and feelings, and that

she needed to tell him what she was thinking and

feeling."). The prosecution failed to present such

evidence in this case. "

We have upheld admission of a six-year-old's

statements to a psychologist upon finding that the

second prong was "narrowly" satisfied where the

mother testified that she "encouraged' her ‘daughter

to speak openly with Ms. Miller [the psychologist]

because she was there to help her'; and 'I've always

asked [my daughter] to tell the truth." United States

v. Dean, 31 M.J. 196, 200-01 (CMA 1990). There is

no evidence in the record to show that R.H.'s

grandparents, who had custody of her at the time of

her interview with Dr. Craig, explained to R.H. the

purpose of her visit with Dr. Craig or the importance

of being truthful or that she needed to be truthful so

that Dr. Craig could properly treat her. See also

United States v. Siroky, 44 M.J. 394, 400 (1996) ("We

recognize that a small child may not be able to

articulate that he or she expects some benefit from

treatment. Thus, it is often important for [the

child's] caretakers to explain to [the child] the

importance of the treatment in terms that are

understandable to the child."). As the majority

opinion notes, Dr. Craig testified that she asked the

grandparents to "prepare" the children for a

"checkup" and to tell them to be truthful. However,

-no evidence was presented to show that the

grandparents did in fact prepare R.H. as requested.

2la

Although R.H.'s statements were erroneously

admitted, I believe the error was harmless in light of

the Government's overwhelming evidence of

appellant's guilt. The DNA evidence of appellant's

semen stains on his daughter's pajamas and

undergarments, the physical evidence of abuse

observed by Drs. Novek and Craig; appellant's

admission to touching his daughter's vaginal area,

and J.H.'s statements admitted through Drs. Novek

and Craig establish appellant's guilt beyond a -°

reasonable doubt.

SULLIVAN, Senior Judge (concurring in part and

in the result): -

I have continued fear about admission of the

testimony of very young children under the medical

exception to the hearsay rule under Mil.R.Evid

803(4). In United States v. Kelley, 45 M.J. 275, 282

(1996), I stated in a separate opinion:

Moreover, let me express my growing uneasiness

with the continuous expansion of and reliance upon

the medical exception to the hearsay rule.

Mil.R.Evid. 803(4). Here, a 6-year-old child's

statements to a family counselor are taken as proof

of a crime under Fed. and Mil.R.Evid. 803(4). Every

day in America, countless statements are given in

emergency rooms and medical offices by children,

young adults, middle-aged, and elderly patients to

doctors of medicine and their assistants. Are all

these statements true? Are all these statements

22a

admissible in court as the sole proof of a crime? I and

my fellow judges should wonder about this and

perhaps tighten application of this rule. I suspect

that many statements given under the current

breadth of the medical-exception umbrella, if closely

scrutinized, may not be the complete truth. Motives

should be thoroughly examined at the trial level

before such statements are allowed as evidence in

court.

On this basis, with regard to the statements of

the three-year-old sister, R.H., I adopt the excellent

opinion of my brother judge, Judge Effron.

Nevertheless, like my brother, I come to the

conclusion that the erroneous admission of R.H.'s

testimony was harmless in light of the overwhelming

evidence of appellant's guilt.

23a

APPENDIX B

United States v. Hollis, 57 M.J. 74 (2000)

IN THE

U.S. NAVY-MARINE CORPS

COURT OF CRIMINAL APPEALS

WASHINGTON NAVY YARD

WASHINGTON D.C.

BEFORE

R.B. LEO D.A. ANDERSON K.J. NAUGLE

UNITED STATES

Vv.

Mark K. HOLLIS

Journalist First Class (E-6), U.S. Navy

Decided 15 December 2000

Sentence adjudged 2 April 1998.

Military Judge: G.T. Hatch.

Review pursuant to Article 66(c), UCMJ, of General

Court-Martial convened by Commanding Offficer,

U.S. Naval Support Activity, Naples, Italy.

Capt CURTIS M. ALLEN, USMC,

Appellate Defense Counsel

LT FRANK M. DOHERTY, JAGC, USN,

Appellate Defense Counsel

LT WILLIAM C. MINICK, JAGC, USNR,

Appellate Government Counsel

LEO, Senior Judge:

Contrary to his pleas, the appellant was

convicted before a military judge sitting as a general

court-martial of rape, forcible sodomy, and

commission of indecent acts with a person under 16

years of age, in violation of Articles 120, 125, and 134,

Uniform Code of Military Justice, 10 U.S.C. §§ 920,

925, and 934. He was awarded a dishonorable

discharge, confinement for 22 years, forfeiture of all

pay and allowances, and reduction to pay grade E-1.

The convening authority approved the sentence as

adjudged.

We have examined the record of trial, the

appellant's assignments of error, the Government's

response, and the appellant's reply; we have also

considered the oral arguments by the parties on 1

November 2000. We conclude that the findings and

sentence are correct in law and fact and that no error

materially prejudicial to the substantial rights of the

appellant was committed. Arts. 59(a) and 66(c),

UCM.

25a

I. Background

The appellant was charged with raping, forcibly

sodomizing, and committing indecent acts upon his

six-year-old daughter, JH, on divers occasions during

the summer of 1997 in Naples, Italy. When

interrogated by an agent from the Naval Criminal

Investigative Service [NCIS], the appellant admitted

only that he had touched JH while role-playing with

her in an attempt to have her disclose to him how she

had supposedly been molested several months earlier

by a playmate when JH was still living with her

mother. The Government's evidence at trial included

statements that JH had made to two physicians, Drs.

Novek and Craig, who interviewed and examined her

on separate occasions. JH disclosed that the appellant

had sexually abused her by engaging in activity that

included forcible intercourse and sodomy. The

Government also introduced the out-of-court

statements of the four-year-old sister, RH, who was

present when some of the alleged acts occurred.

Medical examinations of JH revealed evidence of

sexual abuse.

Over defense objection, the statements by JH

and RH were admitted under the medical treatment

exception to the hearsay rule. MIL. R. Evi. 803(4),

MANUAL FOR COURTS-MARTIAL, UNITED STATES (1998

26a

ed.).' Neither of the children testified at the trial in

Naples because they had already returned to the

United States. The appellant was eventually

convicted of committing rape and indecent acts upon

JH on divers occasions and of forcible sodomy.

II. Medical Treatment Exception to Hearsay Rule

The appellant contends that the military

judge erred by admitting into evidence the out-of-

court statements of the victim and her younger sister

under the medical treatment exception to the

hearsay rule. We disagree.

Generally, the standard of review when a

military judge admits or excludes evidence is whether

there was an abuse of discretion. United States v.

Sullivan. 42 M.J. 360, 363 (1995); United States v.

Casey, 45 M.J. 623, 627 (N.M.Ct.Crim.App. 1996).

When the medical exception to the

hearsay rule is involved, the question

whether the patient has the requisite

state of mind and expectation of receiving

‘Under Mil. R. Evid. 803(4), "[s]ltatements made for

purposes of medical diagnosis or treatment and

described medical history, or past or present

symptoms, pain, or sensation, or the inception or

general character of the cause or external source

thereof insofar as reasonably pertinent to diagnosis

or treatment" are not excluded by the hearsay rule.

27a

a medical benefit is a preliminary

question of fact under Mil.R.Evid. 104(a).

As such, it will be set aside "only if clearly

erroneous."

United States v. Kelley, 45 M.J. 275, 280

(1996)(quoting United States v. Quigley, 40 M.J. 64, 66

(C.M.A. 1994)). After reviewing the record, we

conclude that the military judge's findings are not

clearly erroneous and, therefore, that he did not abuse

his discretion in admitting the statements in question.

The rationale for the medical treatment

exception is that "a patient undergoing diagnosis or

receiving treatment from a trained medical

professional has an incentive to be truthful because

such answers will promote his own well-being."

- United States v. Welch, 25 M.J. 23, 25 (C.M.A. 1987).

Accordingly, statements admitted under this

exception are considered to be "inherently reliable,"

United States v. White, 25 M.J. 50, 51 (C.M.A. 1987),

and the moving party need not show that the

declarant is unavailable to testify in order for the

statements to be admitted. MIL. R. Evip. 803; United

States v. Dean, 31 M.J. 196, 203 (C.M.A. 1990).

However, to be admissible, such evidence must satisfy

a two-prong test: "[F]irst the statements must be

made for the purposes of medical diagnosis or

treatment; and second, the patient must make the

statement with some expectation of receiving medical

benefit for the medical diagnosis or treatment that is

being sought." United States v. Faciane, 40 M.J. 399,

28a

403 (C.M.A. 1994)(internal quotes and citation

omitted).

The patient's state of mind or motive in

providing the statement is critical in determining the

statement's admissibility. Id. "Obviously, very young

children will not have the same understanding or

incentive as adults when making statements to

persons providing health care." United States v.

Avila, 27 M.J. 62, 66 (C.M.A. 1988). Therefore, the

test may be relaxed somewhat to take into account a

child's capacity to comprehend the relationship or

connection between her disclosure and the medical

benefit that she expects to receive. United States v.

Edens, 31 M.J. 267, 269 (C.M.A. 1990); United States

v. Williamson, 26 M.J. 115, 118 (C.M.A. 1988).’ In

Edens, our superior Court held that the test for

admissibility was met when the record showed that

the children (three and five-years-old, respectively)

understood (1) that they were seeing a doctor, (2) that

they were being physically examined and questioned

to determine what had happened to them, and (3) that

the dector needed this information in order to help

them. Edens, 31 M.J. at 269. In cases of abuse, the

evidence provided by a child under the medical

treatment exception may include the identity of the

*"Although there may be some relaxing of the

quantum of proof in those situations where a child is

being treated, the facts and circumstances must

support a finding that both prongs of the test were

met." Williamson, 26 M.J. at 118.

29a

abuser when such information is reasonably necessary

for the diagnosis or treatment of the child (e.g., a close

relative as opposed to a stranger). United States v.

Deland, 22 M.J. 70, 74 (C.M.A. 1986). The two-prong

test for admissibility can be satisfied through the

testimony of witnesses other than the child herself

(e.g., health care provider or parent). United States v.

Cox, 45 M.J. 153, 157 (1996); Quigley, 40 M.J. at 66.

A. Interview of JH by Dr. Novek

The first physician to examine JH was Dr.

Novek, a staff pediatrician at the Naval Hospital in

Naples, Italy. JH was referred to him on 11 August

1997, by a social worker from the Family Service

Center [FSC] following an allegation of possible

sexual abuse committed the night before. His

purpose in examining JH was to determine if there

had been abuse and if medical treatment or

intervention was required. He stated that a routine

part of a medical examination includes taking a

detailed history from the patient to identify the

symptoms and causes of any medical illnesses or

injuries.

The appellant's defense counsel objected to the

admission of any testimony by Dr. Novek under the

medical treatment exception concerning what JH

may have said. In overruling the defense objection,

the military judge made the following findings:

I specifically state for the record that

30a

the court has heard ample evidence

that [JH] was aware of the

circumstances for which she was at the

doctor's office. She recognized the

doctor from prior visits for medical

treatment. The doctor and his staff

advised her that she was there for

possible medical treatment and to

determine what was wrong with her so

they could get treatment, and what had

happened so she could be treated. No

evidence to the contrary that she didn't

understand that. In fact, the doctor

indicated that in his opinion, she did,

and his opinion is obviously based on

previous exposure to her also. So your

objection is overruled.

Record at 95.

| Dr. Novek testified that he identified himself

to JH as a doctor; he told her that he was going to

help her figure out what had happened and help her

if she needed it. He believed that she understood the

purpose of the visit because he had been her regular

doctor before and had treated her during previous

visits to the hospital. JH disclosed, among other

things, that the appellant had touched her genital

area and, in doing so, had caused her a great deal of

physical pain. She added that the appellant told her

not to tell anyone else because he would go to jail.

She said that she did not want to go back to the

3la

appellant because she was afraid it would happen

again. Based upon the interview and the physical

examination that he conducted, Dr. Novek stated

that his findings were highly suspicious, but not

conclusive, of abuse.

The appellant contends that the military

judge erred because JH did not want to make a

doctor's appointment, nor did she complain of being |

in need of medical treatment. She had been taken to

the hospital by NCIS Special Agent Hudson for a

medical examination after her nanny brought the

abuse to the attention of the FSC staff; Special

Agent Hudson was also present when Dr. Novek

interviewed her. The appellant argues that Dr.

Novek's general inquiry at the end of the interview

to those in the room, asking if anyone had any

questions, shows that this was not an interview

conducted for medical purposes and that Dr. Novek

was merely participating in a criminal investigation

into the alleged abuse.

The focus of the appellant's argument is

misplaced. First, as our superior Court recognized

in United States v. Siroky, 44 M.J. 394, 399 (1996),

young children "are not expected to seek out medical

treatment independently, but instead rely upon their

caretakers to obtain treatment when necessary."

Second, JH's interview was conducted by trained

medical personnel. Although Special Agent Hudson

attended the interview, there was little evidence at

32a

trial to show that he participated in it.’ Third, the

mere fact that JH was transported to the hospital by

an NCIS agent does not undermine the medical basis

of her statements to Dr. Novek. See Deland, 22 M.J.

at 73 (key to statement's admissibility is child's

intent in speaking to psychiatrist, not mother's

intent in bringing child to psychiatrist). Accordingly,

we are satisfied that Dr. Novek was seeking the kind

of information that medical personnel need to

diagnose and treat young patients who may have

been abused, that he was seen by JH as her doctor,

and that she confided in him believing that he would

provide her with medical assistance if she needed it.

B. Interviews of JH by Dr. Craig

* HM3 Rodriguez-Calderon, the hospital corpsman

who was at the interview, testified during the trial

that she remembered the agent talking, but did not

recall him directing any questions to JH. Record at

83. At the Article 32, UCMJ, investigation, however,

Dr. Novek did testify that towards the end of the

interview--after JH had disclosed the abuse to him--

Special Agent Hudson asked JH some additional

questions about what the appellant may have said to

her concerning the abuse and why he was doing it to

her. See Investigating Officer's Report of 6

November 1997, Transcript of Testimony of

Witnesses at 6-7. Even though this information was

not introduced at trial, we do not believe that it is

significant enough to have changed the essential

character of Dr. Novek's interview with JH.

33a

The other physician who examined JH was

Dr. Craig, a pediatrician at the National Naval

Medical Center and an expert in the area of child

abuse. She testified about disclosures made to her

by JH over the course of two interviews.

Dr. Craig was brought into the case at the

request of the appellant's trial defense counsel, who

wanted another evaluation and examination of JH

by a different medical expert. She conducted her

initial interview of JH on 4 September 1997, at her

office in Bethesda, Maryland. As before, the

appellant's defense counsel objected to any testimony

about JH's disclosures. The military judge overruled

the objection and made the following findings:

I find that [JH], who is the subject of the

interview, knew she was talking to a

medical professional, she specifically

called Dr. Craig, "doctor," and that she

understood that truthful answers were

necessary for treatment, and I find that

no way inconsistent with a reluctance to

answer or being emotional.

Record at 189.

Dr. Craig advised JH when she met her that

she was a doctor who "[took] care of children with

tummy aches, sore throats, earaches, or other

problems which we can treat and try_to make

34a

better." Prosecution Exhibit 15 at 3. She also

advised JH that she "[took] care of children who

need to talk to us about things that might have

happened to them." Jd. Dr. Craig testified that she

was wearing a white lab coat and had a stethoscope

with her at the time of the interview. She

ascertained that JH knew the difference between the

truth and a lie and advised JH that it was important

to tell the truth so she could determine what had

happened and if there was a problem. JH became

extremely upset when asked about the events in

Italy. She managed to disclose that something bad

had happened with her dad in the bed where they

slept and that her dad had told her that he would go

to jail if she told anyone about it. Although visibly

agitated, JH refused to go into any detail, but did tell

Dr. Craig that she wanted what had happened in

Italy to stop. Due to JH's emotional state, Dr. Craig

terminated the interview and proceeded to the

physical examination. Based on the interview and

the physical examination, her medical diagnosis was

that JH had been emotionally traumatized and was

most likely suffering from a post-traumatic stress

disorder.

On 30 September 1997, Dr. Craig conducted a

second interview after JH indicated a desire to meet

with her again. The appellant's defense counsel

objected to testimony about JH's statements from

this interview, as well. Before ruling, the military

judge made the following findings:

So, and you also heard the doctor just

testify that she was willing to change

her plan and impression, her diagnosis

if -- if the information she got on the

30th were different. ... So, with that in

mind, I find based on Dr. Craig's

testimony that the statements made by

[JH] to Dr. Craig on the 30th of

September 1997 were for the purpose of

promoting her well-being and receiving

medical treatment or diagnosis, that

[JH] knew she was talking to a medical

professional. In fact, she greeted her as

("]Dr. Craig["] and she understood the

need for truthful answers, and that they

were necessary for her treatment, and

your objection is overruled.

Record at 249.

Dr. Craig testified that when they met again,

JH addressed her as "Dr. Craig" and appeared to

understand that the medical history still needed to

be completed. Dr. Craig indicated a need for the

additional information to better understand what

had happened to JH and, if necessary, to change the

diagnosis and treatment plan in her initial

evaluation report of 12 September 1997, Prosecution

Exhibit 15.

On appeal, the gist of the appellant's objection

is that the first prong of the medical treatment

36a

exception was not met. The appellant argues that Dr.

Craig was initially consulted as a possible expert

witness and not as a treating physician for JH.

Therefore, Dr. Craig's questions were solely to elicit

information for the purpose of litigation and not

medical treatment. As further evidence in support of

his argument, he claims that an NCIS agent was

present during Dr. Craig's second interview of JH.

Although Dr. Craig may have been consulted

initially by the appellant for litigation purposes, we

do not believe it places her testimony about JH's

disclosures outside the scope of Mil. R. Evid. 803(4).

See STEPHEN A. SALTZBURG, ET AL., MILITARY RULES

OF EVIDENCE MANUAL 948 (4th ed. 1997)(editorial

comment cites Advisory Committee's Note on

Federal Rule of Evidence 803(4), the source of our

military rule, as authority for the proposition that

Mil. R. Evid. 803(4) also includes statements made

to doctors who diagnose or are consulted for

litigation purposes). Statements obtained by

medical personnel in these types of cases almost

always have the potential for dual uses in the

medical and investigative arenas. Therefore, in

determining the admissibility of statements under

the medical treatment exception, we must examine

the circumstances in which the statements were

made. In other words, were they made for the

purpose of medical diagnosis and treatment, or for

some other nonmedical purpose?

37a

In this case, JH and RH were under the care

of their paternal grandfather at the time of their

interviews. According to Dr. Craig, she reviewed

the case reports and wanted the grandfather to get

the children into counseling if there was evidence of

abuse. She could assist them by doing the medical

evaluations; if needed, she could also provide the

referrals that would enable the children to obtain

counseling under their medical insurance plan.

Even though Dr. Craig may have been asked by the

trial defense counsel to examine JH in the hope that

her findings could be helpful to the appellant, the

fact remains that Dr. Craig's examination of JH and

the disclosures that she elicited from this child had

a medical purpose. In fact, there is nothing in the

record to suggest that she conducted her

examination of JH any differently than she would

with any other patient she was evaluating for

possible treatment. The presence of an NCIS agent

who did nothing more than take notes while the

doctor was obtaining the patient's medical history

does not, in this instance, alter our view that the

statements by JH were made for a medical purpose.

Hence, we find that the first prong of test was met.

We find that the second prong of the test has

been met as well. Dr. Craig introduced herself to JH

as a doctor who helped kids; she wore the

accouterments of a doctor when she conducted the

interviews and examination; and she advised JH

that she wanted the truth so she could determine if

there was a problem. JH had been to a hospital and

38a

been treated by a doctor before, so we can-assume

that, even for a six-year-old child, she had somie

general understanding of who she was seeing and

why. The mere fact that JH was initially reluctant

to provide details of the abuse does not diminish her

expectation of a benefit when she did finally decide

to disclose the details. See e.g., United States v.

Clark, 35 M.J. 98, 105 (C.M.A. 1992)(finding a five-

year-old child's statements admissible under medical

treatment exception despite her initial lack of

cooperation). By telling Dr. Craig that she wanted

the abuse to stop, JH expressed a desire to be

helped. Later on, when she was calmer about

disclosing the details of the abuse, all indications

from Dr. Craig's descriptions were that JH expected

to be helped by providing this information to the

doctor.

C. Interview of RH by Dr. Craig

On 4 September 1997, Dr. Craig conducted a

medical interview and examination of RH, as well,

and later testified at trial about RH's disclosures to

her. Although there was no allegation that RH had

been sexually abused by the appellant, Dr. Craig

testified that, in her experience, when one child has

been abused, it is not uncommon for other children

in that household either to be abused or to be

traumatized in witnessing the abuse of another. As

a result, these children may also require medical

treatment or therapy. The appellant's trial defense

counsel objected to the admission of any statements

39a

that RH made concerning JH. The military judge

overruled the objection and made the following

findings:

Well, I find that [RH] understood that

she was talking to a doctor that helped

children. She understood the need to

tell the truth and based on Dr. Craig's ;

testimony that she understood that it |

was in her best interest to be truthful

and that those truthful answers were

necessary for any type of treatment,

whether it was physical or counseling.

Even though [RH] probably didn't know

what the word ["]counseling["] meant,

but Dr. Craig said talk to for--to make

you better or words to that effect.

Therefore, I find that even though it is

hearsay, it comes within M.R.E. 803(4),

as medical exception to the hearsay

rule.

Record at 230.

Dr. Craig told RH that she was a doctor who

helped children by taking care of things such as

“earaches or rashes or other problems." Prosecution

Exhibit 34 at 1. She ascertained to her satisfaction

that RH knew the difference between a true

statement and a lie. When asked if anything had ever

happened in bed between JH and her dad, RH said

that something had happened and described it as "bad

40a

and yucky." Record at 231. When asked what she

meant by "yucky," RH stated that she saw the

appellant "open [JH's] private parts with his hands,"

Record at 232, and demonstrated what she had seen

by spreading her legs and placing both of her hands

over her genital area. She also said that the appellant

told JH to eat something in bed that night. She

described the appellant kneeling over JH and telling

her not to chew it. RH described and demonstrated

how the appellant had placed a pillow under JH's face

while JH had her buttocks raised in the air and how

he had touched JH there. Dr. Craig concluded by the

way RH reacted that she was upset by it and would

need counseling, as well.

The appellant contends that neither prong of

the medical treatment exception was met. He argues

that this information was not elicited for medical

diagnosis or treatment, but to facilitate an ongoing

criminal investigation. Because the statements of RH

related to someone other than herself, he claims that

she could not have made these statements with any-

expectation of receiving a personal benefit.

The appellant's argument fails to consider the

statements of RH in their proper context. It is

common knowledge that psychological trauma can be

just as devastating to the well being of an individual,

particularly a child, as physical trauma. Dr. Craig

interviewed RH in order to determine whether she

might be experiencing emotional problems from the

abuse of her sister; this was sufficient to show that the

4la

interview was for medical diagnosis and treatment.

In conducting the interview, Dr. Craig was careful to

ensure that RH knew and accepted that she was a

doctor who helped children with their medical

problems and that RH needed to answer truthfully in

order to be helped. For a child of tender years, this

was sufficient to establish an expectation of a medical

benefit for the statements that she subsequently

provided. See Prosecution Exhibit 34 at 8 (Dr. Craig's

medical evaluation report of 15 September 1997).

Accordingly, we find that the two-prong test for the

medical treatment exception was satisfied with

respect to the statements of RH.

D. Violation of the Confrontation Clause

Finally, the appellant challenges the

admission of the children's statements on the

grounds that his Sixth Amendment right of

confrontation was violated. He argues that, unlike

the traditional adult standard, the medical

treatment exception as applied to young children is

not a firmly rooted exception to the hearsay rule

because the case law that allows their statements to

be admitted under a more relaxed standard is

relatively new. Thus, he argues, the Government

failed to show that the declarants were unavailable

to testify and that their statements had the

particularized guarantees of trustworthiness making

cross-examination unnecessary.

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By failing to raise this constitutional __

argument at trial the appellant forfeited it as

grounds for appeal. Edens, 31 M.J. at 267 n. 1; MIL.

R. EvipD. 103(a)(1). However, assuming arguendo

that he did not forfeit it, he also fails to cite any legal

authority in support of his argument that the

statements of young children are not included under

the medical treatment exception to the hearsay rule.

Moreover, the decisions of the Supreme Court and

our superior court suggest otherwise.

"The admission of out-of-court statements of

child victims in sexual abuse cases is governed by

the holding in Idaho v. Wright, 497 U.S. 805, 111 L.

Ed. 2d 638, 110 S.Ct. 3139 (1990)." United States v.

Sumner, 204 F.3d 1182, 1185 (8th Cir. 2000). In

Wright, the Supreme Court declared that, although

directed at similar concerns, the requirements of the

Confrontation Clause are not the same as those

governing the rule against hearsay; in fact, the

Confrontation Clause may bar admission of evidence

that would otherwise be admissible under an

exception to the hearsay rule. Wright, 497 U.S. at

814. The Confrontation Clause does two things with

respect to hearsay exceptions: first, it imposes a

"rule of necessity" by requiring the Government to

show that the declarant is unavailable to testify;

second, it requires that the declarant's out-of-court

statements bear adequate "indicia of reliability." Jd.

at 814-15. However, the Court also stated that

"{rleliability can be inferred without more" in the

case of statements lying within a firmly rooted

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exception to the hearsay rule or statements showing

particularized guarantees of trustworthiness. Id. at

815.

In White v. Illinois, 502 U.S. 346 (1992), the

Supreme Court affirmed the judgement of the state

appellate court, which held that the statements

made by a four-year-old sexual assault victim to an

emergency room nurse and a physician were

properly admitted under the medical treatment

exception, even though she did not testify at trial.

Id. at 358. In doing so, the Court held that the rule

of necessity was not a requirement for spontaneous

declarations and statements made for medical

treatment, which were recognized without

equivocation by the Court as firmly rooted

exceptions to the hearsay rule. Jd. at 357 (emphasis

added). Our superior military Court has similarly

held that the statements of young children who did

not testify at trial were admissible under the

medical treatment exception. See Clark, 35 M.J. at

106; Edens, 31 M.J. at 269; Dean, 31 M.J. at 204.

Accordingly, we find no basis for the appellant's

contention that his Sixth Amendment right of

confrontation was violated.

III. Factual Sufficiency

In his next three assignments of error, the

appellant contends the evidence is factually

insufficient to prove that he is guilty of the charges.

We disagree.

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The test for factual sufficiency is whether, after

weighing the evidence in the record of trial and

making allowances for not having personally observed

the witnesses, this court is convinced of the

appellant's guilt beyond a reasonable doubt. United

States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987).

The statements that JH and RH gave to the

physicians were obviously crucial to the Government's

case because they provided the details of the sexual

abuse and identified the appellant as the perpetrator.

We found these statements, on the whole, to be

trustworthy, coherent, and credible, given the ages of

these children and their ability to comprehend and

respond during the medical interviews. Whatever

inconsistencies and ambiguities may have existed

were not significant enough to diminish our overall

assessment of the strength of the Government's case.

The initial reluctance of JH to fully cooperate

was not unexpected, according to the trial experts, in

light of the trauma resulting from such abuse and the

gradual process of disclosure that generally occurs

among children who have experienced it. The

information provided to the doctors by JH and RH

was corroborated in important respects by the medical

examinations of JH's hymen following the abuse and

the forensic analysis of her nightgown, which

confirmed the presence of the appellant's semen.

After reviewing all of the evidence, we are convinced

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beyond a reasonable doubt of the appellant's guilt as

to each of the charges.

IV. Sentence Appropriateness

In his final assignment of error, the appellant

contends that his sentence is inappropriately severe in

light of his 14 years of naval service. We disagree.

For this court, "[s]entence appropriateness

involves the judicial function of assuring that justice is

done and that the accused gets the punishment he

deserves." United States v. Healy, 26 M.J. 394, 395

(C.M.A. 1988). This process requires the

"individualized consideration of the particular accused

on the basis of the nature and seriousness of the

offense and the character of the offender." United

States v. Snelling, 14 M.J. 267, 268 (C.M.A.

1982)(internal quotes and citation omitted).

In reviewing the record, we weighed the

seriousness of the appellant's offenses and the long-

term impact they are likely to have on the victim

against the matters offered by the appellant in

extenuation and mitigation, including his 14 years of

naval service. As a parent, the appellant was

responsible for the care and protection of his two

young children. Instead, over a period of several

months, he used the oldest child as an object for his

own sexual gratification. The amount of punishment

that he received as a result is simply commensurate

with the type of offenses that he committed.

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Accordingly, we do not find his sentence to be

inappropriately severe.

V. Disposition

We affirm the findings and sentence as approved

on review below.

Judge ANDERSON and Judge NAUGLE

concur.

For the Court

R.H. TROIDL

Clerk of Court

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