# Petition for Writ of Certiorari — Hollis v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2002
- **Citation:** 537 U.S. 1049

## Text

’ \ ~
\ 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

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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

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SOSH HEHEHE ESE EEEEE HEHEHE EEE EEE EEE EEE EE EEEES

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POSSE EEE EEE HEHEHE EHH EEE EEE EEE EEE EEE

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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

45a

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.

46a

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0620%3A1. Public record. Not legal advice.