Petition for Writ of Certiorari — Ureta v. United States

Supreme Gousk BE.

FILED

(\) 96 854 NOV 27 1996,

No.

” ornee OF THE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

MASTER SERGEANT JOSE M.C.R. URETA,

PETITIONER

V.

UNITED STATES OF AMERICA, RESPONDENT

Petition For a Writ of Certiorari to the United States

Court of Appeals for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

Marge A. Overly

Captain, United States Air Ferce

Appellate Defense Division

Counsel of Record

Air Force Legal Services Agency

Appellate Defense Division

172 Luke Avenue, Suite 343

Bolling AFB, DC 20332-8000

202-767-1562

November 1996

CS \

QUESTION PRESENTED

Whether the United States Court of Appeals for the

Armed Forces erred when it held that the admission of

hearsay statements of the petitioner’s sole accuser did not

violate the petitioner’s Sixth Amendment right to confront his

accuser as explained in /daho v Wright.

TABLE OF CONTENTS

SUINUE CEEEW Skip cee nen eth eWee Ve wna cebe ed di 1

PRE Cc die sci wee er abAse dons bee v0 ¢0000-0% 2

SONSTITUTIONAL PROVISIONS INVOLVED ........ 2

ee gg dy oe at: Re rae 2

REASON FOR GRANTING THE WRIT ............... 3

CEG ds CaaS yeaa bce oN es cesecsecceuees 9

APPENDIX A (Opinion of the United States

Court of Appeals for the Armed Forces)...............- la

’ APPENDIX B (Opinion of the United States

Air Force Court of Criminal Appeals) ................ 27a

iv

TABLE OF AUTHORITIES

Supreme Court Cases:

Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139,

EET LE. oe GHG Care) ss i cwewsgiawiveasen 3, 7, 8, 9

Military Cases:

United States v. Avila, 27 M.J. 62 (C.M.A. 1988) ..... 5

United States v. Deland, 22 M.J. 70 (C.M.A. 1986)... .4

United States v. Edens, 31 M.J. 267 (C.M.A. 1990)... .5

United States v. Hines, 23 M.J. 125 (C.M.A. 1986)... .7

United States v. Moreno, 36 M.J. 107 (C.M.A. 1992) ..8

United States v. Quigley, 35 M.J. 345 (C.M.A. 1992). 5, 9

United States v. White, 25 M.J. 50 (C.M.A. 1987)..... 5

United States v. Williamson, 26 M.J. 115

CAG BD, Ts cc a ease Pies owes 4,5

United States v. Moreno, 31 M.J. 935

(ATE A ia x Rao hae thea oe eI ERS 7,8

United States v. Pollard, 34 M.J. 1008

CAE is Si ee 0 need Se ees hed Soke oka 8

United States v. Siroky, _M.J._(C.M.A. 1996).......5

Federal Statutes:

28 U.S.C.A. § 1259(3) (West Supp. 1996)........... 2

10 U.S.C.A. § 867 (a) (West Supp. 1996) ........... 2

Constitutional Provisions:

U.S. Constitution Amendment VI.............. 2,7,9

Manual for Courts-Martial, United States, 1984:

Me ee 6

eee 4

NOs i ik. 4

WR BO ok Seed ces 2, 4, 5, 6

MELE tril MOMONS) oi kc. 2, 4, 6

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

No.

MASTER SERGEANT JOSE M.C.R. URETA,

PETITIONER

Vv.

UNITED STATES OF AMERICA, RESPONDENT

Petition For a Writ of Certiorari to the United States

Court of Appeals for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

The petitioner, Master Sergeant Jose M.C.R. Ureta,

respectfully prays that a writ of certiorari issue to review the

order and judgment of the United States Court of Appeals for

the Armed Forces entered in his case on 29 August 1996.

OPINIONS BELOW

The order and judgment of the United States Court of

Appeals for the Armed Forces, reported at 44 M.J. 290 (29

August 1996), is located at Appendix A. The opinion of the

United States Air Force Court of Criminal Appeals as reported

at 41 M.J. 571 (AF Ct. Crim App 1994), is located at

Appendix B.

JURISDICTION

The judgment of the United States Court of Appeals for

the Armed Forces was entered on 29 August 1996. The

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

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

1996).

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment of the Constitution of the

United States provides in relevant part: In all criminal

prosecutions, the accused shall enjoy the right . . . to

be confronted with the witnesses against him... .

STATEMENT OF THE CASE

At the petitioner’s general court-martial on charges of

rape, indecent acts, and attempted sodomy, the military judge

admitted into evidence, over objection, a videotaped statement

of the victim to the AFOSI under the residual hearsay

exception of Military Rule of Evidence [hereinafter

Mil.R.Evid.] 804(b)(S) and admitted into evidence statements

made by the victim to Dr. Boos, a pediatrician, under

Mil.R.Evid. 803(4) as a statement made for the purpose of

medical treatment. The parties agreed that the victim was

unavailable as a witness. The military judge concluded that

the petitioner’s Sixth Amendment right to confront and

cross—examine his accuser was not unfairly infringed upon by

allowing previous statements of the declarant into evidence

because the defense could subpoena the declarant to explain

why she recanted her earlier statements. (R-227-229, App.

Ex. XLI).

On appeal to the Air Force Court of Criminal Appeals,

the Air Force Court held that the military judge did not abuse

his discretion in admitting the victim’s statements to Dr. Boos

since the record supports a finding that the victim made the

Statements in anticipation of receiving medical treatment.

United States v. Ureta, 41 M.J. 571, 577 (A.F. Ct. Crim App

1994). Similarly, the Air Force Court held that the military

judge did not err in admitting the videotaped interview since a

finding could properly be made that it met the circumstantial

guarantees of trustworthiness required for admission under

the residual hearsay exception. Jd. at 578. On appeal to the

Court of Appeals to the Armed Forces, that Court agreed,

finding that the military judge did not abuse his discretion in

admitting either the videotaped interview or the statements to

Dr. Boos. This opinion is contrary to the petitioner’s Sixth

Amendment right to confront his accuser es explained in

Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d

638 (1990).

REASON FOR GRANTING THE WRIT

THE UNITED STATES COURT OF APPEALS FOR

THE ARMED FORCES ERRED BY FINDING,

CONTRARY TO IDAHO vy. WRIGHT, THAT THE

HEARSAY STATEMENTS OF THE ACCUSER WERE

NOT ERRONEOUSLY ADMITTED AGAINST THE

PETITIONER.

The government’s primary evidence against the

petitioner consisted of the videotaped interview with the

victim, petitioner’s daughter, and her hearsay statements to

Dr. Boos. The defense submitted a motion in limine (R-9,

App. Ex. I) to exclude certain hearsay statements. The defense

asserted that the statements made to Dr. Boos were not made

for the purpose of medical treatment or diagnosis, and

therefore, did not meet the requirements of the medical

treatment exception to hearsay under Mil.R.Evid. 803(4). The

defense further asserted that the videotaped interview of the

victim should not have been admitted as residual hearsay

under Mil.R.Evid. 804(b)(5). (R-App. Ex. XII).

On 18 March 1992, the victim, after telling her friend

that her father had been “messing” with her, was taken to the

Office of Special Investigations (AFOSI). Special Agent

(SA) David Dick interviewed the victim for approximately

30 minutes during which time he asked if she would consent

to an examination because medical evidence had to be

gathered in these types of allegations. He then notified the

hospital that he was bringing a suspected child abuse victim

in for an examination. The victim, thus, did not have and

could not have had any expectation of receiving medical

treatment from the hospital.

Military Rule of Evidence 802 states that “[h]earsay is

not admissible except as provided by these rules ...” Military

Rule of Evidence 803 lists some exceptions which allow

hearsay to be admitted. Among these exceptions is

Mil.R.Evid. 803(4), statements made for the purposes of

medical diagnosis or treatment. Such statements must be

“made for the purposes of medical diagnosis and treatment”

and must be made by a patient who has “some expectation of

receiving medical benefit from the medical diagnosis or

treatment that is being sought.” United States v. Williamson,

26 M.J. 115, 118 (C.M.A. 1988); United States v. Deland, 22

M.J. 70, 75 (C.M.A. 1986). Additionally, in child sexual abuse

cases, “[i]t must be shown that the child is aware that he or

she is being treated for sexual abuse, otherwise the entire

premise of the reliability of the statement dissipates.” United

States v. Siroky, No. 95-5004, _M.J. _ (1996); United States v.

Edens, 31 M.J. 267, 269 (C.M.A. 1990). “ [U]nless 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 exception disappears entirely. . . .” (citations omitted)

Without such a showing—however reliable the statements

might appear to be—some basis other than the “statements for

purposes of medical diagnosis or treatment” must be found if

they are to be admitted.” United States v. Avila, 27 M.J. 62, 66

(C.M.A. 1988).

The government presented testimony of Dr. Boos, who

testified he was a pediatrician at the pediatric clinic, United

States Air Force Hospital, Wiesbaden, Germany. He had been

informed that a child sexual abuse case was being brought to

the Emergency Room. He discussed the case first with the

AFOSI agents in the back room, where they briefed him on

what they had heard. (R-143). He told the putative victim that

he needed to hear her story. (R--144).

To qualify for admission as an exception to the hearsay

rule, Dr. Boos’ testimony must meet the foundational facts

required by Mil.R.Evid. 803(4). The foundational facts are

that a statement: (1) was made (2) near the pivotal time of the

events (3) to an individual who could render medical

diagnosis or treatment (4) by an individual who had an

expectation of receiving treatment from the recipient of the

Statement and (5) refers to the person’s mental or emotional

condition. United States v. Quigley, 35 M.J. 345 (C.M.A.

1992). In reviewing these criteria, there is substantial doubt

these foundational facts were met.

The government presented no evidence that the victim’s

Statement to Dr. Boos was made as part of her treatment or

desire to be cured. See, United States v. White, 25 M.J. 50

(C.M.A. 1987); and United States v. Williamson, supra. The

premise of the rule is that a patient seeking treatment or

Pen ee nee ne eee

diagnosis is more apt to be truthful because he/she believes

that by telling the truth such treatment will be forthcoming,

thus the declarant benefits from making a truthful statement.

The victim was told by SA Dick that as part of the

investigation she was required to undergo a medical

examination, as it was necessary to obtain medical evidence.

(R-70) The victim was telling her story to Dr. Boos not to get

some medical benefit, but because the AFOSI agent told her it

was part of the investigation and the evidence was required in

these types of cases. se

Prior to the examination by Dr. Boos, Dr. Boos was

briefed by the AFOSI agents. (R-49) Dr. Boos’ notes of the

interview of the victim were fairly detailed as to exactly what

she told him. His motivation for making these notes as exact

as possible was because he felt he may be called to testify in

court. (R-52). The victim had no expectation of medical

treatment, did not ask for medical treatment and was largely

passive during the treatment. Therefore, the court below erred

by finding the statements made by the victim to Dr. Boos

could be admitted under Mil.R.Evid. 803(4).

Over objection of the defense, the videotaped interview

of the victim was admitted as an exception to the hearsay rule

under Mil.R.Evid. 804(b)(S). (R-App. Ex. XLI) The military

judge found that the victim was unavailable to testify and

could not be forced to appear and testify against her father

under German law. As there is no judicial notice of the

German law under Mil.R.Evid. 201, it appears the military

judge has made sweeping conclusions of what the German

law provides.

The military judge in his “Findings of Fact” (R—App. Ex.

XLI) stated: “The accused’s 6th Amendment right to confront

and cross—examine his accuser was not unfairly infringed

upon by allowing previous statements of the declarant into

evidence, since the defense can subpoena the declarant to

explain why she recanted her earlier statements.” Petitioner

was not responsible for the witness refusing to testify and had

no control over the witness. Neither petitioner nor his counsel

had the opportunity to cross-examine or even question the

witness. The trial defense counsel contacted the witness’

attorney in writing (R-227) and the government sent a

subpoena; the witness refused to testify.

After trial, the military judge, in his “Findings of Fact”

(R-App. Ex. XLI, paragraph 7), stated:

The videotape interview has ample guarantees of

trustworthiness. The declarant’s statement was

obtained without leading questions and is in her

own words. It is the freely conceived product of the

declarant as opposed to the result of suggestive

interrogation. The statement is voluntary, is under

oath, is detailed, is factual as opposed to

conjectural, and is based on first-hand knowledge

of the events. The declarant was relatively mature

and aware of the need to be truthful, she lacked a

motive to falsify at the time, she was a member of

the accused’s household and depended upon him

for support, and subjected herself to ridicule and

social stigma among her friends and family by

making the statement. . . .

These were the same bases used by the military judge in

United States v. Moreno, 31 M.J. 935 (A.C.M.R. 1990).

However, as The Court of Military Review in Moreno

correctly points out (at 939), that aspect of the Hines [United

States v. Hines, 23 M.J. 125 (C.M.A. 1986)] line of cases was

effectively overruled by Idaho v. Wright, 497 U.S. 805, 110

S.Ct. 3139, 111 L.Ed.2d 638 (1990)

The Sixth Amendment to the United States Constitution

provides, in part: “In all criminal prosecutions, the accused

Shall enjoy the right . . . to be confronted with the witnesses

against him.” See, United States v. Moreno, supra, and United

States v. Moreno, 36 M.J. 107 (C.M.A. 1992), United States

v. Pollard, 34 M.J. 1008 (A.C.M.R. 1992). The United States

Supreme Court decision in /daho v. Wright, supra, is now the

controlling case on this issue. In Wright, the Court held that,

in judging whether a statement shows “an indicia of

reliability,” either the statement must fall within a firmly

rooted hearsay exception or be supported by a showing of

“particularized guarantees of trustworthiness.” The

particularized guarantees of trustworthiness are limited to the

“totality of the circumstances surrounding the making of the

statement and that renders the declarant particularly worthy

of belief” and not from any subsequent corroboration of the

criminal act using other evidence. “Evidence possessing

‘particularized guarantees of trustworthiness’ must be at least

as reliable as evidence under a firmly rooted hearsay

exception. [Citation omitted.] Unless an affirmative reason,

arising from the circumstances in which the statement was

made, provides a basis for rebutting the presumption that a

hearsay statement is not worthy of reliance at trial, the

Confrontation Clause requires exclusion of the out-of-court

statement.” Moreno, (A.C.M.R.), supra.

Some of the factors to be considered in determining

whether a statement is reliable are: spontaneity and consistent

repetition of the statement, the mental state of the declarant,

use of terminology unexpected of a child of similar age, and

lack of motive to fabricate. In this case the declarant’s

statement was not spontaneous, as she had been questioned

previously by the AFOSI Agent, Mrs. Holman and Dr. Boos;

the facts were neither consistent nor repetitious, the

terminology was not unexpected of a child of similar age (Dr.

Boos had used the same terminology), and she did have a

motive to fabricate, as evidenced in her own statement which

she recanted at a later date. The Court of Appeals, in

determining that there were sufficient guarantees of

trustworthiness, considered the statements made by the victim

to her friend and to Dr. Boos, reasoning that these were part of

a compressed sequence of events and so were part of the

circumstances surrounding the making of the statement. This

is contrary to the rule of law in Jdaho v. Wright. The two prior

Statements (to the friend and to Dr. Boos) were separate and

distinct from the videotaped interview. They were not part of

the circumstances surrounding the making of this statement

and, therefore, should not be used to uphold its admission.

CONCLUSION

Unlike the case of United States v. Quigley, supra, where

there was other evidence a crime had been committed, in this

case there is no remaining evidence that would support the

finding that a crime had been committed or that would support

a finding of guilty. The military judge obviously misapplied

the law by admitting the videotape and the out of court

Statements made to Dr. Boos. The Court of Appeals for the

Armed Forces erred by upholding the admission of this

hearsay in violation of the petitioner’s Sixth Amendment right

to confront his accuser.

MARGE A. OVERLY

Captain, United States Air Force

Appellate Defense Division

Counsel of Record

Air Force Legal Services Agency

Appellate Defense Division

172 Luke Avenue, Suite 343

Bolling AFB, DC 20332-8000

202-767-1562

November 1996

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APPENDIX A

UNITED STATES, Appellee

v.

Jose M.C.R. URETA, Master Sergeant

U.S. Air Force, Appellant.

No. 95-0321.

Crim. App. No. 30274.

U.S. Court of Appeals for

the Armed Forces.

Argued Dec. 7, 1995.

Decided Aug. 29, 1996.

Accused was convicted by general court-martial, Wade

B. Morrison, J., of one specification of rape and one

specification of carnal knowledge. The United States Air

Force Court of Criminal Appeals, Becker, J., 41 M.J. 571,

affirmed. Accused appealed. The United States Court of

Appeals for the Armed Forces, Gierke, J., held that: (1)

victim’s taped interview with special agent of Air Force Office

of Special Investigations (OSI) had circumstantial guarantees

of trustworthiness sufficient to be admissible under residual

hearsay exception; (2) military judge properly considered

extrinsic corroboration in assessing reliability of taped

interview with special agent of Air Force OSI: (3) ample

evidence supported military judge’s finding that alleged

sexual abuse victim’s statements to pediatrician were

admissible under medical exception to hearsay rule; (4)

prosecution was properly allowed to question alleged victim’s

mother based on their belief that she would provide evidence

that accused had admitted sexually abusing his daughter; (5)

2a

testimony of victim’s mother given during pretrial

investigation hearing, although inadmissible for impeachment

purposes since witness was available, was admissible as

substantive evidence of prior inconsistent statement; and (6)

although military judge erred by permitting court members to

take pretrial investigation hearing transcript into their

deliberations, this error was harmless.

Affirmed.

Everett, Senior Judge, filed dissenting opinion in which

Sullivan, J., joined.

1. Military Justice 1095

Alleged sexual abuse victim’s taped interview with

special agent of Air Force Office of Special Investigations

(OSI) had circumstantial guarantees of trustworthiness

sufficient to be admissible under residual hearsay exception in

general court—martial for rape and carnal knowledge; even

though interviews took place in OSI offices, police station

atmosphere was attenuated by presence of victim’s best friend

in whom victim had first confided, questions were not

suggestive, interview took place only two days after last

incident of alleged abuse and victim was making herself

homeless by accusing her father. Military Rules of Evid., Rule

804(b)(5).

2. Military Justice O- 1095

Statements elicited by law enforcement officials are

regarded with caution but are not per se inadmissible under

residual exception to hearsay rule. Military Rules of Evid.,

Rule 804(b)(5).

3. Military Justice O~ 1420

Military judge’s decision to admit residual hearsay is

3a

entitled to considerable discretion on appellate review.

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

4. Military Justice = 1095

Military judge properly considered extrinsic

corroboration, the victim’s previous statements to her best

friend and to physician, in assessing reliability of taped

interview with special agent of Air Force Office of Special

Investigations (OSI) under residual hearsay exception; given

compressed sequence of events, victim’s consistent statements

to two others immediately before interview were part of

circumstances surrounding making of statement. Military

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

5. Military Justice O- 1091

Ample evidence supported military judge’s finding that

alleged sexual abuse victim’s statements to pediatrician were

made for purposes of medical diagnosis and that patient

provided information expecting treatment and, thus, were

admissible under medical exception to hearsay rule; evidence

shows that 13-year old was old enough and intelligent enough

to understand what was happening and physician identified

himself as pediatrician, questioned victim in a hospital setting,

performed physical examination, conducted laboratory tests

for pregnancy and sexually transmitted disease, and explained

to victim why he needed information. Military Rules of Evid.,

Rule 803(4).

6. Military Justice Om 1422

Military judge’s finding that declarant had actual

expectation of receiving medical treatment is preliminary

finding of fact and will not be overturned on appeal unless it

is clearly erroneous.

4a

7. Military Justice O- 1141, 1143.1

Prosecution was properly allowed to question alleged

sexual abuse victim’s mother based on their belief that she

would provide evidence that accused had admitted sexually

abusing his daughter and, thus, testimony was not for sole

purpose of impeaching witness; although mother recanted her

previous testimony against her husband, prosecution did not

know beforehand what she would say as mother had refused

to speak with prosecution.

8. Military Justice O- 1150

Testimony of alleged sexual abuse victim’s mother, given

during pretrial investigation hearing, although inadmissible

for impeachment purposes since witness was available, was

admissible as substantive evidence of prior inconsistent

statement where prosecution called mother to lay foundation

for admission of testimony from hearing. Military Rules of

Evid., Rules 613(b), 801(d)(1).

9. Military Justice O- 1270.1, 1426

Although military judge erred by permitting court

members to take pretrial investigation hearing transcript into

their deliberations in general court-martial for rape and carnal

knowledge, this error was harmless where transcript was not

only evidence against accused, transcript was only relevant to

whether accused admitted to his wife that he had sexually

abused his daughter, and other evidence of guilt included

taped statement of his daughter, testimony by pediatrician and

testimony by social worker.

For Appellant: David R. Dowell (argued); Colonel Jay L.

Cohen and Captain Marge A. Overly (on brief).

Sa

For Appellee: Captain R. Scott Howard (argued);

Colonel Jeffery T. Infelise (on brief); Colonel Thomas E.

Schlegel.

Opinion of the Court

GIERKE, Judge:

A general court-martial composed of officer members at

Rhein—Main Air Base, Germany, convicted appellant, contrary

to his pleas, of rape, carnal knowledge, and committing an

indecent act upon a female under the age of 16, in violation of

Articles 120 and 134, Uniform Code of Military Justice, 10

USC §§ 920 and 934, respectively. The approved sentence

provided for a bad-conduct discharge, confinement for 10

years, and reduction to the lowest enlisted grade. The Court of

Criminal Appeals set aside the conviction of carnal

knowledge, reassessed the sentence, and affirmed only so

much of the sentence as provided for a bad—conduct

discharge, confinement for 7 years, and reduction to the

lowest enlisted grade. 41 MJ 571, 581 (1994).

We granted review of the following issues:

WHETHER THE MILITARY JUDGE ERRED TO

APPELLANT’S PREJUDICF BY ADMITTING

THE VIDEOTAPED INTERVIEW OF [K] TAKEN

BY SPECIAL AGENT DAVID DICK.

Il (Modified)

WHETHER THE MILITARY JUDGE ERRED TO

APPELLANT’S SUBSTANTIAL PREJUDICE BY

ADMITTING THE TESTIMONY OF DR.

STEPHEN BOOS.

6a

Ill

WHETHER IT WAS IMPROPER TO ALLOW

THE PROSECUTOR TO CALL A WITNESS

SOLELY TO IMPEACH HIM/HER.

IV

WHETHER IT WAS IMPROPER TO ALLOW

EXTRINSIC EVIDENCE OF TESTIMONY OF

MRS. CHRISTINA M. URETA AT THE ARTICLE

32(b) INVESTIGATION UNDER THE GUISE OF

IMPEACHING MRS. URETA.

We resolve all four issues against appellant.

Factual Background

JH, a friend and schoolmate of appellant’s 13—year—old

daughter, K, testified that on the afternoon of March 17, 1992,

K told her that appellant “had been messing with her” since

she was 9. JH testified that K did not want to go home and

that she wanted the “messing” to stop. JH asked K “if she

wanted to ialk to” JH’s mother, Mrs. H, and K accepted.

On the morning of March 18, Special Agent (SA) David

Dick of the Air Force Office of Special Investigations (OSI)

interviewed K for about 30 minutes. Based on K’s complaint

that her father was sexually molesting her, the OSI agents

took K, accompanied by Mrs. H, to an Air Force Medical

Center in Wiesbaden, Germany. At the medical center a

pediatrician, Major (Maj) Stephen Boos, MD, examined K.

Maj Boos had been notified that “a suspected child sexual

abuse” case was being brought to the emergency room. When

K arrived, the OSI agents told Maj Boos what K had told

them: that K “had been sexually abused but that sexual abuse

had involved intercourse but not anal penetration or oral sex.”

7a

Maj Boos asked K whether she wanted Mrs. H present,

and K responded in the affirmative. Maj Boos “told them

who I was, Dr. Boos, that I was a pediatrician, let them know

that I had heard a little bit of [K’s] Story and that I wented to

talk to her and to examine her to see whether any harm had

come to her, whether she had caught any infections; but that

before I started, to do the best job I needed to hear her story

from herself.”

Maj Boos explained his purpose as follows:

Well, we always screen for sexually transmitted

diseases and pregnancy, but our index of suspicion

is changed by the events as they occurred. I’m also

trying to evaluate to a certain degree whether I feel

the patient is telling a credible statement, whether

they have the details and experiences, relate the

experiences that I would expect from this kind of

patient so that I can know whether it’s a likely

Statement or an unlikely statement. And I want to

know what kind of psychological state they’re in,

whether they’ve been in a lot of involvement with a

person who’s very close to them over a long period

of time, which is likely to be more difficult for

them, or whether it was a simple single involvement

with someone who they’re not really too close to,

which is less psychologically traumatic. And I try to

make some of these determinations to discuss with

the other members of the team.

Maj Boos was asked, “What is the overall purpose of

this?” He responded, “It’s to provide medical treatment,

including psychological treatment.”

Maj Boos testified that he was aware of “the medical

exception to the hearsay rule” and that when there is a

possibility of having to testify, he tries “to get as much of

what the person that you’re treating says” into the medical

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records. Maj Boos testified further, however, that most of

what he wrote in his notes “is necessary knowledge for her

therapist, for treating her.”

Maj Boos testified that he examined K and found “some

vaginal changes that were consistent with having been

penetrated” and symptoms of a potential sexually—transmitted

disease. Asked about his plan of treatment, Maj Boos testified:

I screened her for sexually transmitted diseases and

pregnancy. i recommended that she see a

gynecologist. | recommended that visit be delayed

until after she had had her tests back so that if there

were other things to be treated it could be done in

one visit and spare her the additional visit but when

all the tests were negative I wished her to be seen by

a gynecologist where he could verify and evaluate

further that papule in her vagina. I felt that she

needed to be engaged early in a plan of treatment,

psychological treatmen’, for her what I felt was a

full sexual abuse accommodation syndrome at the

hands of her father who is a very close person to her

and therefore has a greater potential for doing

psychological harm and having long-term impact. I

recommended that to her counselor and then I

recommended that she be placed in foster care

because I didn’t think the home was a good place

for her to return to at that point.

The defense objected to Maj Boos’testimony on the

ground that his questioning of K was for criminal

investigative purposes rather than medical diagnosis and

treatment. See Mil.R.Evid. 803(4), Manual for Courts—

Martial, United States (1995 ed.). The military judge

overruled the objection. Before the members, Maj Boos

testified that K told him that appellant had begun touching her

when she was 9 years old. Maj Boos asked K, “Normal people

9a

touch each other and normal fathers touch normal girls; was it

like that?” K responded, “No, it wasn’t, because he had

touched her breasts and her butt.” Maj Boos testified further:

I asked her if she had told anyone, and she said that

she hadn’t told anyone. And then later on I asked

her when it had changed, since I’d already heard

some other stories, and she said, around 10 or 11 it

had changed. I said, what was different? And I can’t

quote her but she said she had begun having sexual

intercourse. At first she couldn’t recall that word

and she looked to Mrs. [H], but before Mrs. [H]

could answer she recalled the words, “sexual

intercourse.” And then, because that’s a school

word, a word adults use in talking with children

sometimes, I asked her, you know, if her dad had

taken his penis out, and she said, yes. And I asked

her if he had toucied her with it, and she said, yes. I

said, “Where?” And she said, “Inside my butt.” And

then I asked her if she could explain “inside my

butt” a little bit more, and she couldn’t explain it

any further than that. -

Maj Boos testified that K told him that sexual intercourse

with appellant had begun when she was between 10 and 11

years old. He asked her when the last time was, and K told

him it was “the Sunday before.” Maj Boos testified further:

She said her father had come back from Africa and

that at night when she was in bed he had come into

her room and come to her bed and put his hands in

her pants and begun messing with her, in her words,

and then they did it. I said, “Did what?” and she

said they had sex. And then I asked her some

questions about, did anything come out of his

penis? And she said yes, sperm. Again, sperm was

kind of a schoolbook word and so I asked her how

10a

did she know about sperm? She said that she

learned about sperm in school. Then I asked her if

anything came out of her and she said, “Sperm,” so

I said, “What was it like?” And she made kind of a

distasteful face and said it was gross and slimy.

Maj Boos testified that his physical examination revealed

that K had a “papule” or “bump” in her vagina, which he

thought might be a papilloma, which is a sexually transmitted

virus infection. He noted a notch in her hymen, “a finding

that’s not found in normal 13—year—old girls.” He said that the

significance of the notching is “a subsequent penetration of

some sort.”

After Maj Boos’ medical examination was completed,

the OSI transported K and Mrs. H back to the OSI office,

where they conducted a videotaped interview of K. SA Dick :

testified that it was “standard” in sexual abuse cases to

videotape the interview. He explained why:

Well, for one, the videotape can be shown to

prosecution and defense attorneys so that the victim

is not, in essence, questioned over and over; and for

another, because in child sexual abuse allegations it

seems that the children always recant statements

prior to trial.

K’s “best friend” (JH) and JH’s mother were present

during the videotaped interview at K’s request. During the

interview, K said that appellant “has been . . . messing with me

ever since I was 9.” K told SA Dick that appellant “touches

my breasts and private parts.” She said the touching happened

4—5 times a week. She told SA Dick that appellant began

having “sexual intercourse” with her when she was 11. She

said that appellant “tried to put his private into my mouth,”

but she pushed him away. She said that the last instance of

fondling and sexual intercourse was 2 days before the

interview.

eS RL Te SOME EN Lt MMM CRT

lla

After the videotaped interview with the OSI, K returned

to the pediatric ward in Wiesbaden. She was interviewed there

by Captain Carl Rohbock, a Family Advocacy Officer and

Mental Health Officer.

Capt Rohbock was not called as a prosecution witness,

but was requested by the court members after both sides had

rested. A defense objection that Capt Rohbock’s testimony did

not qualify under Mil.R.Evid. 803(4) was overruled.

Admissibility of Capt Rohbock’s testimony is not before this

Court.

Capt Rohbock had three visits with K in the hospital and

six more in the Mental Health Clinic. He testified that on

March 18, 1992, at his first meeting with her, K told him “that

her father had started at the age of 9 . . . manipulating her

vaginal area with his fingers, sleeping with her, rubbing her,

touching her; and that by age 11 that had progressed to full

intercourse where he was penetrating and having intercourse

with her.” At their third meeting in the hospital, K repeated

her allegations. In spite of her allegations against her father, K

told Capt Rohbock that she preferred to live with her father

instead of her mother. Capt Rohbock explained that K “had

made some allegations of physical abuse by the mother

toward the two boys; that her mother was very controlling,

demanding; and that she didn’t like her mother. Specifically,

she hated her mother.”

During subsequent meetings, K was very angry and

“upset” with her mother “[b]ecause her mother knew that she

was being sexually abused and was not acting to protect her.”

On May 19, 1992, Capt Rohbock noted that K “began to be

noncooperative . . . . [nJot wanting to talk; not wanting to

come to meetings; not wanting to participate in therapy or

sessions with her mother. . . .” Capt Rohbock testified that K

told him that she had talked with her aunt, who told her

“[t}hat if she would change her story that her father would be

~

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Suva 5h 3, ae nena enero esters

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12a

able to get treatment; that sexual abuse would no longer be

continuing; that [K] could come and live with her; and that

her father could get treatment and wouldn’t have to go to

prison.” K told Capt Rohbock that her aunt’s suggestion was

“repulsive.”

On March 23, 1992, appellant’s wife, Christina Ureta,

made a sworn statement to SA Dick. Mrs. Ureta is K’s

mother. Mrs. Ureta told SA Dick that on March 18, after the

OSI agents had left their home, appellant admitted sexually

abusing K. In her statement, Mrs. Ureta also said that

appellant admitted placing his fingers in K’s vagina but denied

having sexual intercourse with K. (Prosecution Exhibit 2 for

Identification)

On June 15, a lawyer representing K informed military

authorities that K would invoke her privilege under German

law and refuse to testify regarding the charges against her

father. Attached to the lawyer’s letter was a statement from K

recanting her accusations against appellant. (Defense Exhibit

A) At trial, counsel for both sides agreed that K could not be

compelled to testify and was therefore unavailable.

Mrs. Ureta testified at the investigation under Article 32,

UCMJ, 10 USC § 832, on June 16, 1992. She repeated what

she told SA Dick—that appellant admitted placing his fingers

in K’s vagina. (Pros. Ex. 3 at 3) She testified that this

admission was on March 18, the day K was interviewed by

the OSI and Maj Boos. She also testified that on April 4, she

confronted appellant with K’s accusations and appellant

admitted having sexual intercourse with K. (Pros. Ex. 3 at 4)

Finally, she testified that appellant tried “[a]t least four times”

to persuade her to change her testimony. (Pros. Ex. 3 at 17)

At trial the military judge overruled defense motions in

limine and admitted the OSI interview videotape. (Pros. Ex.

1) The military judge made findings to support his ruling

admitting the videotape, as follows:

13a

The videotape interview has ample guarantees of

trustworthiness. The declarant’s statement was

obtained without leading questions and is in her

own words. It is the freely conceived product of the

declarant as opposed to the result of suggestive

interrogation. The statement is voluntary, is under

oath, is detailed, is factual as opposed to

conjectural, and is based on first—hand knowledge

of the events. The declarant was relatively mature

and aware of the need to be truthful; she lacked a

motive to falsify at the time, she was a member of

the accused’s household and depended upon him for

support, and she subjected herself to ridicule and

social stigma among her friends and family by

making the statement. The statement was made by

the declarant shortly after the incident to which the

Statement relates with little opportunity to reflect,

and is similar to other “firmly rooted hearsay

exceptions,” i.e., it is a restatement of allegations

made earlier that same day to Dr. Boos in a very

reliable setting that qualifies under MRE 803(4),

and is also a restatement of allegations made the day

before to [JH] in a reliable setting that nearly

qualifies under MRE 803(2).

Mrs. Ureta was called by the prosecution on the merits

but was something of a “wild card” witness. During the initial

/ tticle 39(a), UCMJ, 10 USC § 839(a), session, trial counsel

informed the military judge, “I don’t know what, if any,

testimony she will provide.” Later, when the military judge

asked trial counsel if Mrs. Ureta would be tesuiying, trial

counsel responded:

Sir, she is here; but whether or not she’s actually

going to testify and give us any information, I don’t

know. Like I said, when I realized she was here |

14a

asked her if she was going to testify and she said, “I

won’t answer you. I haven’t decided yet.”

When Mrs. Ureta was called as a prosecution witness,

she declared, “I do not wish to answer any questions and

testify against my husband.” The military judge informed her

that she “must answer or suffer any consequences for refusing

to testify.” She was then asked: “[W]hat admissions did your

husband make to you concerning any child sexual abuse he

might have done against your daughter?” She denied that

appellant made any admissions to her. She testified that she

lied to SA Dick because appellant gave her “a hard time” after

she had an affair in 1991, and she saw her interview with SA

Dick as an opportunity to “repay what he did to me.”

The military judge sustained a hearsay objection when

trial counsel attempted to introduce Mrs. Ureta’s statement to

the OSI, but he told trial counsel “you can ask the witness if

certain parts of this are true.” Trial counsel then questioned

Mrs. Ureta about the statement line—by—line. With no defense

objection, trial counsel read each sentence, and asked her if

she said it and whether it was true. She responded each time

that the statement read was not true. The written statement

was not received in evidence.

Trial counsel then questioned Mrs. Ureta about her

Article 32 investigation testimony. Again, trial counsel read

the questions and answers and asked Mrs. Ureta if that was

her testimony. She consistently responded that her responses

were lies. Again, defense counsel did not object.

Trial counsel offered the transcript of Mrs. Ureta’s

Article 32 testimony. Defense counsel did not object to trial

counsel’s examination of Mrs. Ureta about her Article 32

testimony but objected to admission of the Article 32

transcript. The military judge opined that the Article 32

testimony of Mrs. Ureta was admissible as substantive

15a

evidence under Mil.R.Evid. 801. He asked defense counsel if

he disagreed, and defense counsel responded: “As much as |

would like to, I believe that you have accurately stated the

current status of the law.”

Discussion

In its review of the legal and factual sufficiency of the

evidence, the court below noted: “Convictions based solely on

hearsay are troubling, even if the military judge committed no

errors in admitting the hearsay.” 41 MJ at 580. The dissenting

opinion of the court below recites: “Appellant was convicted

of child sexual abuse solely on the basis of out of court

Statements of sexual abuse made by his 13 year old daughter.”

41 MJ at 581. Neither of these statements is entirely accurate.

Regarding the former, appellant was not convicted

“based solely on hearsay.” The Article 32 testimony of Mrs.

Ureta was admitted as substantive evidence under Mil.R.Evid.

801(d)(1). This Rule provides that a prior statement by a

witness is not hearsay if “[t]he declarant testifies at the trial or

hearing and is subject to cross—examination concerning the

Statement, and the statement is . . . inconsistent with the

declarant’s testimony, and was given under oath subject to the

penalty of perjury at a trial, hearing, or other proceeding, or in

a deposition[.]”

Regarding the latter, appellant was not convicted solely

on the basis of K’s out-of-court statements. K’s statements

were supported by appellant’s admissions of guilt to his wife

(Pros.Ex. 3) and Maj Boos’ physical examination.

Appellant has not challenged the legal sufficiency of the

evidence before our Court but has challenged admissibility of

the evidence against him. We will discuss each of his

challenges seriatim.

Pe Ee” |

¥

l6a

Videotaped OSI Interview (Issue I)

[1] Defense counsel conceded that K was unavailable as

a witness. The military judge admitted the videotape

under Mil.R.Evid. 804(b)(5) as “residual hearsay.” Appellant

contends that the military judge erred in concluding that the

statement met the requirement for “circumstantial guarantees

of trustworthiness.” The Government argues that the military

judge’s findings of fact are supported by the evidence and

support his conclusion that the videotape meets the

requirements of Mil.R.Evid. 804(b)(5).

Both Mil.R.Evid. 803(24) and 804(b)(5) relate to

“residual hearsay.” We generally have analyzed the

“circumstantial guarantees of trustworthiness” the same way

under both rules. As we noted in United States v. Lyons, 36

MJ 183, 186 n. 2 (CMA 1992), “The only difference [between

the two Rules] is that, unlike the former, the latter applies

only when the declarant of the prior statement is not

available.”

In United States v. McGrath, 39 MJ 158, 164-67 (1994),

however, we identified a fundamental difference between the

two rules. Where the declarant actually testifies, the military

judge may look beyond the circumstances of the declaration

and consider corroborating evidence to determine if the

declaration is sufficiently trustworthy to be admitted. Where

the declarant does not testify, however, the military judge may

consider only those circumstances “that surround the making

of the statement and that render the declarant particularly

worthy of belief.” United States v. Pollard, 38 MJ 41, 49

(CMA 1993), quoting Idaho v. Wright, 497 U.S. 805, 819, 110

S.Ct. 3139, 3148, 111 L.Ed.2d 638 (1990).

[2] Examples of circumstances that may be considered,

when the declarant is unavailable, include spontaneity,

17a

consistent repetition, mental state of the declarant, and lack of

motive to fabricate. 497 U.S. at 821-22, 110 S.Ct. at 3149-50.

In addition, use of open-ended, non—leading questions;

repeated emphasis on truthfulness; and declarations against

the declarant’s interest (e.g., not being able to go back home)

tend to support trustworthiness of the declaration. United

States v. Pollard, 38 MJ at 50; United States v. Lyons, 36 MJ

at 186. Statements elicited by law enforcement officials are

regarded with caution but are not per se inadmissible. United

States v. Pollard, 38 MJ at 49; United States v. Giambra, 33

MJ 331, 334 (CMA 1991).

Even if it meets the reliability test, however, evidence

may not be admitted as “residual hearsay” unless it is

“necessary” to prove the case and “more probative on the

point for which it is offered than any other evidence which the

proponent can procure through reasonable efforts.”

Mil.R.Evid. 803(24). See United States v. Giambra, 33 MJ at

334 (residual hearsay must be “necessary”).

[3] The military judge’s decision to admit “residual

hearsay is entitled to ‘considerable discretion’ on appellate

review.” United States v. Pollard, 38 MJ at 49. We hold that

the military judge did not abuse his discretion by admitting

the OSI interview videotape.

Even though K was interviewed at the OSI offices, the

“police station” atmosphere was attenuated by the presence

of her best friend (JH) and JH’s mother, in whom K had first

confided. The military judge was satisfied, as are we after

viewing the videotape, that the questions were not

suggestive. The interview was 2 days after that last incident

of abuse. The military judge noted, as did the military judge

in Pollard, that the victim was making herself homeless by

accusing her father.

[4] Appellant argues that the military judge erred by

18a

considering extrinsic corroboration——the previous statements

to JH and Maj Boos——in assessing the reliability of the

videotape. We disagree. The military judge properly

considered K’s statements immediately before the OSI

interview as indicia of “consistent repetition.” See 38 MJ at

49. Given the compressed sequence of events, we conclude

that K’s consistent statements to JH and Maj Boos

immediately before the OSI interview were part of “the

circumstances surrounding the making of the statement.”

Idaho v. Wright, 497 U.S. at 820,110 S.Ct. at 3149.

The requirement for “necessity” was met. K’s

out—of—court declarations were the only evidence, other than

appellant’s partial admissions, that appellant was responsible

for the abnormal physical evidence noted by Maj Boos.

Finally, K’s videotaped interview was more probative than

any other reasonably available evidence. It was the only

evidence coming directly from K’s mouth and not filtered

through another declarant.

Statements to Maj Boos (Issue Il)

[5] The military judge admitted K’s statements to Maj

Boos under Mil.R.Evid. 803(4), the so—called “medical

exception” to the hearsay rule. The rule provides that

out—of—court statements are not excluded if they are “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.”

We stated in United States v. Faciane, 40 MJ 399, 403

(CMA 1994) that evidence

offered under Mil.R.Evid. 803(4) must satisfy a

two—pronged test: “first the statements must be

19a

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.” A key factor in

determining whether 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.”

(Citations omitted.)

The military judge made the following findings of fact

regarding K’s statements to Maj Boos:

The declarant was 13 years old at the time, was of at

least average intelligence, and fully understood that

Dr. Boos’ interview and physical examination of her

was being done for purposes of medical diagnosis

and treatment. She expected medical treatment and

her statements were made in order to receive that

treatment.

[6] A military judge’s finding that the declarant had “an

actual expectation of receiving medical treatment” is a

preliminary finding of fact. As such, it will not be overturned

on appeal unless it is clearly erroneous. United States v.

Quigley, 40 MJ 64, 66 (CMA 1994).

We hold that the military judge’s finding is not clearly

erroneous. There is ample evidence to support his finding that

Maj Boos’ interview was for medical diagnosis or treatment

and that K provided information expecting treatment. K was

old enough and intelligent enough to understand what was

happening. Maj Boos identified himself as a pediatrician,

questioned K in a hospital setting, performed a physical

am

20a

examination, conducted laboratory tests for pregnancy and

sexually transmitted disease, and explained to K why he

needed the information.

Impeachment of Mrs. Ureta (Issue III)

[7] Appellant argues that the military judge erred by

permitting trial counsel to call Mrs. Ureta as a witness for the

sole purpose of impeaching her. See United Siates v. Pollard,

38 MJ 41 (CMA 1993). The Government argues that Pollard

is distinguishable because trial counsel did not know what, if

anything, Mrs. Ureta would say. The Government points out

that Mrs. Ureta’s statement to the OSI was not admitted and

that the military judge gave the members a proper limiting

instruction. Answer to Final Brief at 21—22.

In Pollard, we held that the military judge abused his

discretion by permitting trial counsel to call a “witness on the

merits for the primary purpose of placing otherwise

inadmissible evidence before” the members “under the guise

of impeachment.” 38 MJ at 50. Key to our analysis in Pollard

was that “[t]rial counsel and the military judge knew

beforehand that [the witness] would recant her pretrial

statement in front of the court members, because she had

done so in the hearing on admissibility of her pretrial

statements.” 38 MJ at 50-51.

In appellant’s case trial counsel did not know if Mrs.

Ureta would testify or, if she did, what she would say, because

Mrs. Ureta refused to discuss the case with him. Based upon

her OSI statement and her sworn testimony at the Article 32

hearing, trial counsel had reason to believe that she would

provide evidence that appellant had admitted sexually abusing

his daughter. Accordingly, we hold that the military judge did

not err by permitting trial counse] to question Mrs. Ureta

about her statement to SA Dick. Furthermore, assuming

arguendo that the examination was error, it was forfeited by

defense counsel’s failure to object and does not rise to the

ee eT RT eT Te OT in OTN MCC we

2la

level of plain error. Mil.R.Evid. 103(a)(1) and (d); United

States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d

508 (1993). Finally, even assuming arguendo that any error in

the examination of Mrs. Ureta was not forfeited, such error

was harmless and did not materially prejudice appellant. Art.

59(a), UCMJ, 10 USC § 859(a). The same matters were

covered in greater detail in the transcript of her Article 32

testimony, which was properly admitted as substantive

evidence, as discussed infra.

Admission of Article 32 Hearing Transcript (Issue IV)

[8] Appellant argues that the military judge erred by

admitting Mrs. Ureta’s testimony at the Article 32 hearing. He

argues that, if the declarant is available to testify——as she

was—~—and admits to the inconsistency of the extrinsic

evidence——which she did—then extrinsic evidence of the

prior inconsistent statement is inadmissible. See Mil.R.Evid.

613(b). The Government argues that any error was forfeited

because defense counsel conceded that the Article 32

testimony was admissible.

Mil.R.Evid. 613(b) provides:

Extrinsic evidence of a prior inconsistent statement

by a witness is not admissible unless the witness is

afforded an opportunity to explain or deny the same

and the opposite party is afforded an opportunity to

interrogate the witness thereon, or the interests of

justice otherwise require.

In United States v. Gibson, 39 MJ 319, 324 (CMA 1994),

we reaffirmed our earlier interpretation of Mil.R.Evid. 613(b)

in United States v. Button, 34 MJ 139 (CMA 1992):

“*[E)}xtrinsic evidence of a prior inconsistent statement should

not be admitted for impeachment when (1) the declarant is

available and testifies; (2) the declarant admits making the

a nen oe

Ct eee ee ee

22a

prior statement; and (3) the declarant acknowledges the

specific inconsistencies between the prior statement and his or

her in—court testimony.’ ” (Citations omitted.)

On the other hand, Mil.R.Evid. 801(d)(1) provides, “A

statement is not hearsay if: . . . The declarant testifies at the

trial or hearing and is subject to cross—examination

concerning the statement, and the statement is (A)

inconsistent with the declarant’s testimony, and was given

under oath subject to the penalty of perjury at a trial, hearing,

or other proceeding, or in a deposition. . . . “ Reading the two

rules together, we hold that the Article 32 transcript could

“not be admitted for impeachment” under Mil.R.Evid. 613(b)

but was admissible as substantive evidence in its own right

under Mil.R.Evid. 801(d)(1)(A). Under the circumstances, it

was proper for trial counsel to use Mrs. Ureta to lay the

foundation for admission of her Article 32 testimony and for

the military judge to admit the transcript as substantive

evidence. See S. Saltzburg, L. Schinasi, & D. Schlueter,

Military Rules of Evidence Manual, Editorial Comment at

761-62 (3d ed. 1991) (distinguishing between eliciting

inconsistent statements that are admissible as substantive

evidence and those that do not qualify under Mil.R.Evid.

801(d)(1(A)).

[9] The question remains whether the military judge

erred by permitting the court members to take the Article 32

hearing transcript into their deliberations. In United States v.

Austin, 35 MJ 271, 276 (CMA 1992), we examined RCM

921(b) and held that it was error to allow the court members

to take a verbatim Article 32 transcript into deliberations. We

noted that the error was “not per se reversible error” but must

be tested for prejudice. 35 MJ at 277 n. 6.

Defense counsel did not object to the members’ taking

the transcript into deliberations. Since this case was tried

before Austin was decided, we will not apply a forfeiture and

23a

plain-error analysis. We hold that the military judge erred by

permitting the members to take the transcript of Mrs. Ureta’s

Article 32 hearing testimony into their deliberation room.

We hold further that the error was harmless. Unlike

Austin, the transcript was not the only evidence against

appellant. It was relevant only on the question whether

appellant admitted his guilt to Mrs. Ureta. In addition to his

admission of guilt, appellant was confronted with the

videotaped statement of his daughter, the testimony of Maj

Boos, and the testimony of Capt Rohbock. Under the

circumstances, we see no reasonable possibility that the

finders of fact were influenced by the error. See United States

v. Barnes, 8 MJ 115, 116 (CMA 1979).

Decision

The decision of the United States Air Force Court of

Criminal Appeals is affirmed.

Chief Judge COX and Judge CRAWFORD concur.

EVERETT, Senior Judge (dissenting):

I do not agree with the majority that the military judge

did not err when he admitted into evidence Dr. Boos’

testimony concerning statements made to him by the alleged

victim [K], see Mil.R.Evid. 803(4), Manual for

Courts—Martial, United States (1995 edition); neither do I

agree with the majority that the military judge did not abuse

his discretion when he admitted into evidence the videotape of

an interview with K by an agent of the Office of Special

Investigations (OSI), see Mil.R.Evid. 804(b)(5). Accordingly,

in each instance, I agree with Chief Judge Dixon who

dissented below, see 41 MJ 571, 581-87 (1994), that appellant

was denied his constitutional confrontation right to

cross—examine K, see Idaho v. Wright, 497 U.S. 805, 110

—_.- ee a —

|

4

y

24a

S.Ct. 3139, 111 L.Ed.2d 638 (1990), and that the error was

not harmless beyond a reasonable doubt, see Chapman v.

California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

In United States v. Clark, 35 MJ 98, 105 (1992), this

Court wrote that, when considering applicability of the

medical—treatment exception to the exclusionary hearsay rule,

compare Mil.R.Evid. 801 and 802 with Mil.R.Evid. 803(4),

“we look to the state of mind or motive of the

patient in giving the information to the physician

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. White, 25

MJ 50, 51 (CMA 1987).

Put another way:

Thus, “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

exception disappears entirely.” United States v.

Avila, 27 MJ 62, 66 (CMA 1988), affirmed after

remand, 29 MJ 299, cert. denied, 493 U.S. 1002,

110 S.Ct. 562, 107 L.Ed.2d 557 (1989).

United States v. Clark, supra at 105.

Despite the requirement that medical—treatment hearsay

evidence meet this underpinning of Mil.R.Evid. 803(4) if it is

to be admitted under that exception, it does not appear that it

was Satisfied in this case. The OSI agent who conducted this

investigation acknowledged that K did not ask to be taken to |

the hospital. Instead, she was taken there only after he had |

“asked her if she would consent to an examination because

medical evidence had to be gathered in. these types of

allegations.” (Emphasis added.) Dr. Boos did testify that,

when beginning his interview of K, he had told her that he

25a

“wanted to talk to her and to examine her to see whether any

harm had come to her, whether she had caught any infections;

but that before I started, to do the best job I needed to hear her

story from herself.”

As Chief Judge Dixon opined, this superficial record

does not support a conclusion that K expected to receive

medical help from Dr. Boos and that this help depended on

her giving full and truthful information to the doctor. In fact,

if anything, the record more likely suggests that K merely was

asked to repeat to Dr. Boos the “story” she had told the OSI

and that she anticipated a mere physical examination. At best

from the Government’s standpoint, the record is ambiguous,

and ambiguity does not suffice for admissibility. Accordingly,

in the absence of supporting evidence, I believe that the

military judge was clearly erroneous in concluding that K had

made her statements in the expectation of obtaining medical

treatment.

As to the videotaped interview of K by the OSI, I am

content to refer the reader to Chief Judge Dixon’s treatment

of that issue, 41 MJ at 584-86. For the reasons discussed by

him, I believe that the Government has not carried its burden

of “showing particularized guarantees of trustworthiness,”

see Idaho v. Wright, supra at 815, 110 S.Ct. at 3146~—-that is,

circumstances “that surround the making of the statement

and that render the declarant particularly worthy of belief.”

Id. at 819, 110 S.Ct. at 3148; accord United States v. Lyons,

36 MJ 183, 186 (CMA 1992), and United States v. Clark,

supra at 106.

Accordingly, I conclude that appellant has been denied

his constitutionally assured right to confrontation as to the

hearsay evidence from K, admitted through the testimony of

Dr. Boos and the videotaped interview by the OSI. Further,

there can be no sincere claim that this denial was harmless

26a

beyond a reasonable doubt. As a result, this conviction should

be reversed; so I must dissent from the majority’s decision to

affirm it. ‘

SULLIVAN, Judge (dissenting):

I join Senior Judge Everett’s well-reasoned dissent—

that is where justice is in this case.

27a

APPENDIX B

UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

UNITED STATES

V.

Master Sergeant JOSE M.C.R. URETA, FR562—94—6699

United States Air Force

ACM 30274

3 November 1994

eg?

Sentence adjudged 21 August 1992 by GCM

convened at Rhein—Main Air Base, Germany. .

Military Judge: Wade B. Morrison. .

Approved sentence: Bad—conduct discharge,

confinement for 10 years, and reduction to E—1.

Appellate Counsel for Appellant: Mr. David R.

Dowell, Esq. (argued), Colonel Terry J. Woodhouse,

Colonel Jay L. Cohen, Lieutenant Colonel Frank J.

Spinner, and Captain Robert I. Smith.

Appellate Counsel for the United States: Major

Barnard N. Madsen (argued) and Colonel Jeffery T.

Infelise.

28a

Before

DIXON, YOUNG, and BECKER

Appellate Military Judges

OPINION OF THE COURT

BECKER, Judge:

Despite his pleas, a general court-martial composed of

members convicted the appellant of one specification of rape

and one Specification of carnal knowledge in violation of

Article 120, UCMJ,! and one specification of nciecent acts

with a child in violation of Article 134, UCMJ. In each

instance, the appellant’s alleged victim was his adolescent

daughter, whom we will refer to as “K.” The court sentenced

the appellant to a bad—conduct discharge, confinement for 10

years, and reduction to the grade of E-1. Appellant makes

twelve assignments of error, four of which we will discuss.

Three of these allege the military judge erred in admitting

statements of K into evidence as exceptions to the rule against

hearsay. The other alleges the military judge erred by ruling

on a motion for a finding of not guilty as to the rape

specification in such a way that he created a new specification

alleging carnal knowledge. We resolve all of the hearsay

issues against the appellant, and affirm his convictions of rape

and indecent acts. However, we find the military judge

committed plain error requiring us to set aside the carnal

knowledge conviction and dismiss that specification. This, in

turn, requires us to reassess the appellant’s sentence.

,10 U.S.C. § 920 (1988).

2 10 U.S.C. § 934 (1988). The accused was found not guilty of a

specification alleging attempted forcible sodomy under Article 125, UCMJ

(10 U.S.C. § 925 (1988)).

29a

I. BACKGROUND

K and her family lived on Rhein—Main Air Base,

Germany. On the afternoon of 17 March 1992, K (who was, at

this time, 13 years old) confided to her best friend, JH, that

her father had been “messing” with her and that she did not

want to go home. JH asked if K wanted to talk to JH’s mother,

and K agreed. After listening to K, Mrs. H contacted Security

Police at Rhein—Main. Mrs. H and K eventually were referred

to Special Agent Dick of the Rhein—Main detachment of the

Air Force Office of Special Investigations (AFOSI). Agent

Dick and another AFOSI agent interviewed K for about thirty

minutes, during which K repeated her accusations of sexual

abuse by her father. Agent Dick then asked K if she would

consent to a medical examination, informing K that these

types of allegations required the gathering of medical

evidence. K agreed.

On 18 March 1992, Agent Dick and Mrs. H accompanied

K to the Rhein—Main base hospital where K saw Doctor Boos,

an Air Force pediatrician. Before K’s arrival, AFOSI had

briefed Doctor Boos on K’s allegations. Doctor Boos had

experience in cases of suspected sexual abuse of children, to

include an appreciation that what K told him might be

admissible as evidence in a subsequent court—martial. When

K arrived at the hospital, Doctor Boos introduced himself to

her as a pediatrician. He informed her that he needed to find

out if any harm had come to her, if she was hurt, if she had

caught any infections or had other medical problems, and, to

do his best job, he needed to hear her story. K then told

Doctor Boos that her father, the accused, had been touching

her sexually and having sexual intercourse with her since she

was nine years old. K also described to Doctor Boos physical

abuse by her mother. Doctor Boos conducted a pelvic

examination of K, which revealed notching of K’s hymen and

a papule located on her labia majora. According to Doctor

Rt et i

PK SO Oe Eee ae a ee

‘4 Thm a

Sn ty ee

30a

Boos, the condition of K’s hymen was consistent with sexual

intercourse and the papule might have been caused by a

sexually transmitted virus. However, the notching of the

hymen could have been caused by something other than

sexual activity, and the cause of the papule could not be

confirmed because K had declined to appear for further

examinations. Doctor Boos also took specimens and ordered

tests for other sexually transmitted diseases, which yielded

negative results.

Following Doctor Boos’ examination, K, Mrs. H, and

Agent Dick returned to the AFOSI office. K was again

interviewed and repeated the allegations of sexual abuse by

her father. This time, Agent Dick recorded the interview on

videotape.

Also on 18 March 1992, K met with Captain Rohback, a

social worker assigned as Family Advocacy Officer at

Rhein—Main. Air Force regulations required Captain Rohback

to gather information on allegations of child sexual abuse,

formulate risk assessments, and provide therapy and other

treatment as needed. Captain Rohback introduced himself to

K, and informed her that he needed to gather information

relating to her allegations. He told K that his purpose was to

assess the risk she faced, help protect her, assist her in dealing

with complications, discomfort and emotional problems, and

provide for any treatment she might need. Captain Rohback

told K that he needed to understand from her why she was out

of her home, and that listening to her would help him

understand her needs. K then described acts of sexual abuse

by her father, consistent with what she had told Doctor Boos

and Agent Dick. Captain Rohback and K met five more times,

on 19 and 20 March, 9 and 13 April, and 19 May 1992.

During these sessions, K reaffirmed her descriptions of sexual

abuse by the accused. She also related attempts by other

family members to persuade her to take back her accusations.

31a

Charges of rape, attempted forcible sodomy, and

indecent acts with a child were preferred against the aver

on 23 March 1992. Shortly before the Article 32, UCM),>

investigation into the charges, K retained the services of an

American civilian lawyer practicing in Germany. On K’s

behalf, this lawyer submitted a letter to Air Force legal

authorities to the effect that K would assert her right under

German law to refuse to either testify or submit to interviews

concerning allegations against her father. Attached to this

letter was a statement, apparently signed by K, recanting all of

her prior accusations of sexual abuse. In this statement, K said

she had made up the “lies” as a means of forcing her father to

pay attention to the abusive situation created by her mother.

In an initial Article 39(a), UCMJ,4 session, the defense

moved in limine to exclude various hearsay declarations from

K, including the videotaped interview with AFOSI and her

statements to Doctor Boos and Captain Rohback. Both sides

agreed that K could not be compelled to testify against her

father under German law, that the prosecution had attempted

to obtain K’s presence by sending a letter and invitational

travel orders to her through her attorney, and that K had not

responded. In addition, civilian defense counsel stated “I will

concede on behalf of the defense for purposes of your ruling

on availability versus unavailability, that as a factual matter

were [K] to be called to the stand she would refuse to testify.”

R 12. The military judge eventually ruled that K was

unavailable as a witness.

After hearing testimony from Doctor Boos and Agent

Dick, and making essential findings of fact,> the military

judge admitted K’s videotaped interview under the so—called

“residual hearsay” exception at Mil. R. Evid. 804(b)(5), and

7, OUS.C. § 832 (1988).

5 10 U.S.C. § 839(a) (1988).

5 See Rule for Courts-Martial (R.C.M.) 905(d).

Se

32a

her declarations to Doctor Boos as statements for purposes of

medical diagnosis or treatment under Mil. R. Evid. 803(4).

The trial counsel announced that he did not intend to offer

testimony from Captain Rohback, and the military judge did

not rule on that aspect of the defense motion. Later in the trial,

however, the court members requested Captain Rohback’s

testimony. The defense renewed its objection. After hearing

Captain Rohback’s testimony in an Article 39(a) session and

making essential findings of fact, the military judge admitted

K’s declarations to Captain Rohback as statements for

purposes of medical diagnosis or treatment under Mil. R.

Evid. 803(4).

At the close of the prosecution’s case—in—chief, the

defense moved for a finding of not guilty to the rape

specification. That specification alleged the accused had

raped K at divers times from on or about 26 September 1989

to on or about 16 March 1992. Defense counsel argued that

K’s statements did not establish penetration or force, both

essential elements of the crime of rape. The military judge

found sufficient evidence of penetration to deny the motion

on that ground. However, he determined that K had

described only one act of forcible intercourse. Therefore,

with the assent—indeed, the active assistance—of the

defense, the military judge broke out a brand new

“specification 2” of Charge II, which alleged carnal

knowledge at divers times from on or about 26 September

1989 to on or about 15 March 1992. Apparently, the military

judge and ali counsel were under the impression that, carnal

knowledge was a lesser-included offense of rape. ® After

arguments and instructions, the members returned findings

of guilty to the rape specification (now alleging a lone act on

© The military judge later instructed the members that carnal knowledge

was a lesser included offense of rape. R 478-479. The defense counsel

expressly concurred in this instruction. R 347.

33a

or about 16 March 1992) and the “new” specification

alleging carnal knowledge, as well as to the specification

alleging indecent acts.

Il. HEARSAY

A. Standard of Review

In deciding whether the admissions of K’s hearsay

declarations were proper, we do not put ourselves in the shoes

of the military judge to see if we would have made the same

ruling. Rather, our review of a military judge’s decision to

admit evidence is limited to whether he has abused his

discretion. United States v. Dorsey, 38 M.J. 244, 246 (C.M.A.

1993); United States v. Ortiz, 35 M.J. 391, 393 (C.M.A.

1992). In doing so, we ordinarily defer to the military judge’s

findings of fact unless they are unsupported by evidence of

record or clearly erroneous. United States v. Quigley, 40 M.J.

64, 66 (C.M.A. 1994); United States v. French, 38 M.J. 420,

425 (C.M A. 1993); United States v. Evans, 37 M.J. 867, 868

(A.F.C.M.R. 1993). However, we have an independent duty to

affirm only those convictions and sentences which are correct

in law and fact. Article 66(c), UCMJ.’

Because K was not available to testify at the trial,® the

7 10 U.S.C. § 866(c) (1994).

8 We question, as did the military judge, whether K had a legal right to

refuse to testify. Accepting the parties’ agreement that German law

conferred a privilege not to testify against her father, we nonetheless note

that K’s position as of trial was that she had lied to Doctor Boos, Captain

Rohback and Agent Dick. How German law may have accorded her the

right to refuse to testify on her father’s behalf is not clear. Moreover,

under American law at least, it is the law of the forum which controls

whether a privilege exists. United States y. Parker, 1S M.J. 146, 151 (C.M

A. 1983); Pritchard-Keang Nam Corp. v. Jaworski, 751 F.2d 277, 281 (8th

Cir. 1984), cert. dismissed, 472 U.S. 1022 (1985). The Military Rules of

Evidence recognize no parent-child testimonial privilege. See Mil. R. Evid.

34a

admission of her hearsay declarations raises issues under the

Confrontation Clause of the Sixth Amendment to the United

States Constitution. Our approach to the confrontation issue

differs depending on the rule of evidence relied upon in

admitting K’s declarations. If an exception to the rule against

hearsay is one of the so-called “firmly rooted” exceptions,

then compliance with the evidence rule alone will satisfy the

Confrontation Clause. Ohio v. Roberts, 448 U.S. 56, 66

(1980). If, however, the rule involved is not one of the “firmly

rooted” hearsay exceptions, then the statement must be

examined, over and above the minimum requirements of the

evidence rule, for “particularized guarantees of

trustworthiness” which make the statement so trustworthy that

adversarial testing would add little to its reliability. Idaho v.

Wright, 497 U.S. 805, 819-820 (1990). Such indicia of

trustworthiness must be apparent from the circumstances of

the declaration, and not from reference to other evidence at

trial. Wright, 497 U.S. at 822.

We now turn to the declarations in issue. Applying the

above principles, we hold that the military judge did not

abuse his discretion in admitting K’s statements to Doctor

sec. V. Because the parties agreed that K was “unavailable,” this concern is

not adequately addressed in the record. In his findings supporting his

denial of the defense motion in limine to exclude the 18 March 1992

videotaped interview, the military judge found that, under German law, the

defense could have compelled K to testify for her father and, therefore, the

accused's Sixth Amendment confrontation rights were not infringed.

However, there is insufficient evidence of record to support this

conclusion, and we will disregard it. We do not consider the accused to

have, in any way, waived or forfeited his confrontation rights. In any event,

the appellant has conceded K’s unavailability, both at trial and before this

court. The record also supports an inference that K was unavailable under

Mil. R. Evid. 804(a\5), and the military judge’s findings to that effect are

not clearly erroneous. Accordingly, in addressing the admissibility of K’s

videotaped AFOSI interview under Mil. R. Evid. 804(b\(5), we consider K

to have been “unavailable as a witness.”

35a

Boos and Captain Rohback, and her videotaped interview by

Agent Dick.

B. Statement to Doctor Boos

The military judge admitted this declaration as a

“statement for purposes of medical diagnosis or treatment”

under Mil. R. Evid. 803(4). This is a “firmly rooted”

exception to the rule against hearsay. Wright, 497 U.S. at 820:

United States v. Clark, 35 M.J. 98, 105 (C.M.A. 1992).

Accordingly, in order to satisfy the Confrontation Clause, we

need not examine K’s statement to Doctor Boos for

“particularized guarantees of trustworthiness” beyond the

foundational elements of Mil. R. Evid. 803(4).

Mil. R. Evid. 803(4) provides that hearsay statements

may be admitted if they are “made for purposes of medical

diagnosis or treatment” and describe “medical history, or past

OF present symptoms, pain, or sensations, or the inception or

general character of the cause or external source thereof

insofar as reasonably pertinent to diagnosis or treatment.” To

Support admission of a statement under this rule, the

proponent’s foundation must show (1) that the declarant had

some expectations of promoting his or her well—being and,

thus, an incentive to be truthful, and (2) the statement was

made for the purpose of medical diagnosis and treatment.

United States v. Fling, _ M.J. _» Misc. Dkt. 94-08, slip op. at

5 (A.F.C.M.R. 13 Sep. 1994), citing United States y.

Armstrong, 36 M.J. 311 (C.M.A. 1993), and United States v.

Nelson, 25 M.J. 110 (C.M.A. 1987), cert. denied, 484 U.S.

1061 (1988). “The key factor in determining whether a

particular statement is embraced by the medical-treatment

exception is ‘the state of mind or motive of the patient in

giving the information to the physician and the expectation or

perception of the patient that if he or she gives truthful

36a

information, it will help him or her to be healed.”’ United

States v. Morgan, _M.J. _, No. 93-1070, slip op. at 5 (C.M.A.

20 Sep. 1994), quoting United States v. Clark, 35 M.J. 98, 105

(C.M.A. 1992), and United States v. White, 25 M.J. 50, 51

(C.M.A. 1987).

K’s statement to Doctor Boos meets these requirements.

From Doctor Boos’ testimony, it is clear there was a medical

purpose to K’s statements. Doctor Boos needed to know the

nature of the sexual contact in order to decide the scope of his

examination and treatment. For example, K related her father

had engaged in sexual intercourse, but denied anal sodomy.

Consequently, Doctor Boos conducted a vaginal examination,

with tests for sexually transmitted disease, but did not perform

a rectal examination. Doctor Boos’ testimony also shows that

K understood that Doctor Boos’ would be making medical

decisions based on what she told him, thereby providing her a

clear incentive to be truthful. It was not required that K utter

some formal affirmation that her statements were for medical

purposes in order for them to be admissible under Mil. R.

Evid. 803(4), as long as sufficient evidence supports an

inference that she had that expectation. United States v.

Quigley, supra. The evidence here is sufficient to support such

an inference. fhis is not a case of an infant with limited

capability to comprehend that telling the truth will be in her

medical best interest. Compare United States v. Faciane,

_ MJ. _, No. 93-1065 (C.M.A. 20 Sep. 1994); and United

States v. Williamson, 23 M.J. 706 (A.F.C.M.R. 1986), rev'd on

other grounds, 26 M.J. 115 (C.M.A. 1988). The military

judge's findings that this 13 year old “expected medical

treatment and her statements were made in order to receive

that treatment” are not clearly erroneous. Accordingly, we

hold that the military judge did not abuse his discretion in

admitting K’s statement to Doctor Boos.

In reaching this conclusion, we are mindful that both K

37a

and Doctor Boos were aware that this examination had a legal

purpose in addition to a medical one. In Doctor Boos’ case, he

fully appreciated the potential evidentiary value of K’s

Statements to him and made his notes with a view toward

making a clear record in the event they would be introduced at

a trial. We do not believe this knowledge on the part of either

K or Doctor Boos (or both) undermines the foundation for the

admissibility of K’s statements under Mil. R. Evid. 803(4).

The evidence is still sufficient to infer that K, regardless of

her awareness that the examination was part of the

investigatory process, expected treatment from Doctor Boos,

and understood it was in her medical best interest to be

truthful with him. See Morgan, supra, slip op. at 6. For Doctor

Boos’ part, this is not a case where he was acting primarily as

an investigator. Compare United States v. Fink, 32 M.J. 987,

992-993 (A.C.M.R. 1991). Nor does Doctor Boos’

commendable appreciation for the legal consequences of his

actions run afoul of the Court of Military Appeals’ admonition

that it “will not condone efforts to extend Mil. R. Evid. 803(4)

to include the testimony of a [practitioner] whose examination

of an alleged victim 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). K’s statement to

Doctor Boos was properly admitted into evidence under Mil.

R. Evid. 803(4).

C. Statements to Captain Rohback

We reach similar conclusions concerning the military

judge’s admission of K’s descriptions of sexual abuse to this

social worker as “statements for the purpose of medical

diagnosis and treatment” under Mil. R. Evid. 803(4). The

scope of this rule is not limited to statements to licensed

physicians, but also may include statements to other medical

practitioners and mental health therapists, including social

ae Se

ee are OF.

38a

workers. United States v. Nelson, 25 M.J. 110 (C.M.A. 1987);

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

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

Williamson, supra, 26 M.J. at 118. The testimony of Captain

Rohback establishes that his interviews with K were for a

valid medical purpose, and not “more oriented to his

testifying at trial than to medical diagnosis or treatment.”

Deland, supra. \t also supports the inference that K

understood Captain Rohback’s purpose in talking to her was

to promote her physical and emotional well—being, and that

her truthful statements would assist him in that process. See

United States v. Quigley, supra. The military judge’s findings

to this effect are not clearly erroneous. Accordingly, we hold

that the military judge did not abuse his discretion in

admitting K’s statements to Captain Rohback under Mil. R.

Evid. 803(4).

D. Videotaped Interview with AFOSI

The military judge admitted this interview under Mil. R.

Evid. 804(b)(5), the so—called “residual hearsay” exception.

Residual hearsay rules are not “firmly rooted” exceptions to

the rule against hearsay. Jdaho v. Wright, supra; United States

v. Lyons, 36 M.J. 183, 186 (C.M.A. 1992); United States v.

Pacheco, 36 M.J. 530, 534 (A.F.C.M.R. 1992). Therefore, in

addition to compliance with the foundational elements of Mil.

R. Evid. 804(b)(5), we will examine K’s statements during the

interview for “particularized guarantees of trustworthiness”

which will serve to satisfy the Confrontation Clause in the

absence of cross~examination.

In admitting the videotaped interview, the military judge

made findings which included the following:

6. [T]he purpose of videotaping child victims is to

reduce the number of times the child has to tell his

39a

or her story and to preserve evidence for possible

future trial. The videotape has very clear audio and

visual quality and restates in the declarant’s own

words and demeanor (as opposed to Dr. Boos’

written notes) the complete substance of her

allegations against the accused. Although the

videotape repeats the allegations as stated to Dr.

Boos, the videotape is the most probative evidence

that the government can procure through reasonable

efforts in light of the declarant’s subsequent

recantation.

7. The videotape interview has ample guarantees of

trustworthiness. The declarant’s statement was

obtained without leading questions and is in her

own words. It is the freely conceived product of the

declarant as opposed to the result of suggestive

interrogation. The statement is voluntary, is under

oath, is detailed, is factual as opposed to

conjectural, and is based on first-hand knowledge

of the events. The declarant was relatively mature

and aware of the need to be truthful, she lacked a

motive to falsify at the time, she was a member of

the accused’s household and depended upon him

for support, and she subjected herself to ridicule

and social stigma among her friends and family by

making the statement. The statement was made by

the declarant shortly after the incident to which the

Statement relates with little opportunity to reflect,

and is similar to other “firmly rooted hearsay

exceptions,” i.e., it is a restatement of allegations

made earlier that same day to Dr. Boos in a very

reliable setting that qualifies under MRE 803(4),

and is also a restatement of allegations made the

day before to [JH] in a reliable setting that nearly

~

}

*

4

K

¢

"

40a

qualifics [as an excited utterance] under MRE

803(2).?

ese ee ee

9. The declarant recanted her allegations against the

accused prior to trial.

ese eee * *

DECISION

ese eee E

3. Prosecution Exhibit 1, the videotape of 18 Mar

92, is admissible under MRE 804(b)5, since the

declarant is unavailable, the exhibit is offered as

evidence of a material fact, it is more probative of

the point for which it is offered than any other

evidence that the government can procure, it has

circumstantial guarantees of trustworthiness, the

accused’s 6th Amendment right to confront his

accuser is available to the accused,!® and the

interests of justice will be best served by admission

of this exhibit. Moreover, the government’s

legitimate need for this evidence is not outweighed

by any unfair prejudice to the accused.

These findings clearly satisfy the foundational elements

of Mil. R. Evid. 804(b)(5). They are supported by evidence of

record, and are not clearly erroneous. During oral argument,

the appellant’s counsel contended that the videotape was not

9 The military judge granted the defense’s motion in limine to exclude K’s

statements to JH on the afternoon of 17 March 1992. Notwithstanding this

ruling, it was permissible for the military judge to consider JH’s testimony

in deciding whether to admit the videotaped interview. Mil. R. Evid.

104(a).

10 To the extent this clause refers to the military judge’s conclusion that,

under German law, the accused could have compelled K’s attendance as a

witness, we will disregard it. See note 8, supra.

aca fam 7 is SO a mS paca nN een Rei

4la

more probative than other evidence available to the

prosecution (specifically, K’s statements to Doctor Boos and

Captain Rohback) and, therefore, the tape was not admissible

under Mil. R. Evid. 804(b)(5). We reject this argument as

patently without merit. Having determined that Mil. R. Evid.

804(b)(5) has been satisfied, the task remaining before us is to

determine whether the videotaped interview possesses

“pa ticularized guarantees of trustworthiness” which meet the

requirements of the Confrontation Clause in absence of the

adversarial test of cross—examination.

Paragraph 7 of the military judge’s findings includes

several factors favoring the reliability of K’s videotaped

interview. All of these findings are based on evidence of

record, and are not clearly erroneous. To the military judge’s

findings, we would add our own observation of K’s sincere

demeanor during the interview. Most of these factors have

been recognized by the courts as supporting admission of

hearsay statements from children consistent with the

Confrontation Clause. Jdaho v. Wright, supra, 497 U.S. at

821, and cases cited therein; United States v. Pollard, 38 M.1J.

41, 50 (C.M.A. 1993);11 United States v. Lyons, supra, 36

M.J. at 186-187; United States v. Clark, 35 M.J. 98, 106

(C.M.A. 1992). In our review of K’s interview, we also note

the absence of factors which courts have viewed as

undermining the reliability of children’s pre-trial statements.

Specifically, there was no indication that K, prior to the

videotaped interview, had been under the influence of

someone hostile to the accused or would refuse to testify

against him, no ex parte presence of prosecuting attorneys,

ip Pollard, the six-year-old girl was present as a witness and subject to

cross-examination. Therefore, the basis for admitting her prior statements

was Mil. R. Evid. 803(24). However, during testimony she was

“withdrawn and generally uncommunicative.” 38 M.J. at 50. It appears

that the court could have properly applied Mil. R. Evid. 804(a)(2) or (4) to

have considered the girl “unavailable.”

42a

and no appearance that Agent Dick’s sole purpose in taping K

was to “build a criminal case” against the accused. United

States v. Harjak, 33 M.J. 577, 582 (N.M.C.M.R. 1991);

United States v. Palacios, 32 M.J. 1047, 1052-1053

(A.C.M.R. 1991), rev’d on other grounds, 37 M.J. 366 (C.M. A.

1993).

The only factors which run contrary to the military

judge’s determination are K’s subsequent recantation, the

“motive” for her “lies” as explained by K in her recantation,

and the fact that the interview was conducted by a law

enforcement official. The circumstances of K’s recantation are

highly suspect. Her asserted motive to fabricate makes little

sense and appears contrived. We agree with the military judge

that K’s recantation does not prevent the conclusion that the

videotaped interview possesses sufficient indicia of reliability

to satisfy the Confrontation Clause.

Regarding Agent Dick’s role as K’s interviewer, we share

Judge Cox’s concern whether statements obtained by law

enforcement officials possess “such a degree of bipartisanship

that an accused cannot reasonably contend that the purposes

of cross—examination have not been served.” United States v.

Hines, 23 M.J. 125, 137 (C.M A. 1986). However, like Judge

Cox, we are prepared to presume that investigators like Agent

Dick conduct their activities in a professional manner, unless

the contrary appears. Id. See also United States v. Palacios,

supra, 32 M.J. at 1052-1053 n.10. In this case, however, the

military judge did not have to presume any such thing,

because the manner in which Agent Dick conducted K’s

interview was visually and audibly duplicated on the

videotape. As stated by the military judge in his findings, K’s

statements were “obtained without leading questions and [are}-

in her own words.” They were “the freely conceived product

of the declarant as opposed to the result of suggestive

interrogation.” We also note that the presence of K’s best

43a

friend (JH) and JH’s mother during the interview was an

added factor which militated against any “station house”

intimidation. Unless we are prepared to hold (which we are

not) that statements obtained by law enforcement officials

never pass constitutional muster as residual hearsay, then we

may not rely on this fact alone to hold the military judge erred

in admitting this interview.

We believe K’s 18 March 1992 videotaped interview

with Agent Dick possesses sufficient “particularized

guarantees of trustworthiness” such that cross—examination

would have had marginal utility for the accused. During oral

argument, we directly asked appellant’s counsel what points

could have been made by trial defense counsel if K had been

present for cross—examination. Appellant’s counsel suggested

he might have asked K if penetration had occurred and

whether any force was involved. Yet, these questions would

have been completely contrary to the accused’s theory at trial,

which was that K was lying about everything. The accused

was permitted to introduce into evidence K’s written

Statement recanting her accusations. If K had been present as

a witness, the defense certainly could not have obtained from

her any greater concession than that. It is disingenuous to

argue that, but for the lack of an opportunity to

cross—examine, the defense would have been able glean

favorable details about events which the witness would deny

occurred. We hold that the military judge did not abuse his

discretion in admitting K’s videotaped 18 March 1992

interview with Agent Dick under Mil. R. Evid. 804(b)(5).

E. Hearsay and Factual Sufficiency

~ Although holding the military judge did not abuse his

discretion in admitting any of K’s hearsay statements, we are

mindful of our Article 66(c) obligation to affirm findings of

i

44a

guilty only if we are persuaded of the appellant’s guilt beyond

a reasonable doubt. United States v. Turner, 25 M.J. 324, 325

(C.M A. 1987). Convictions based solely on hearsay are

troubling, even if the military judge committed no errors in

admitting the hearsay. However, based on the totality of the

evidence, we are convinced beyond a reasonable doubt that

the appellant is guilty of rape and committing indecent acts

upon the body of his daughter.

Ill. CARNAL KNOWLEDGE “SPECIFICATION”

The military judge committed plain error when he ruled

on the accused’s motion for a finding of not guilty of rape in

such a way as to fashion a brand new specification alleging

carnal knowledge. This requires us to set aside the accused’s

conviction of that specification and reassess his sente xce.

Although the military judge did not expressly acquit the

accused of rape for any of the divers incidents alleged from 26

September 1989 up to but excluding the one on 16 March

1992, his decision to “rule for the defense” was, in effect, a

finding of “not guilty” of rape as to that portion of the

specification. R.C.M. 917(e). Such findings are final when

announced and may not be reconsidered, United States v.

Hitchcock, 6 M.J. 188 (C.M.A. 1979); R.C.M. 917(f).

The military judge believed—as did all counsel,

apparently—that carnal knowledge was a lesser—included

offense of rape. In an attempt to exercise his authority under

R.C.M. 917(e) to grant a motion for a finding of not guilty for

a greater offense, while not doing so for a lesser—included

offense, the military judge then crafted a carnal knowledge

specification and had it listed on the charge sheet as

“specification 2” of Charge II. This was accomplished with

the active assistance of the defense counsel. Even if the

military judge had been correct about carnal knowledge being

ischemia i

45a

a lesser—included offense of rape, we question whether this

was the correct procedure. See R.C.M. 917(e), which sets out

the procedure to use in such cases.

In any case, we hold that carnal knowledge is not a

lesser—included offense of rape, at least where (as here) the

rape specification does not allege the victim’s age as being

under 16, thereby putting the accused on notice to defend

against it as well as the principal offense of rape. Schmuck v.

United States, 489 U.S. 705 (1989); United States v, Smith, 7

M.J. 842 (A.C.M.R. 1979); Article 79, UCMJ;!2 MCM app.

21 9 45d. See also United States v. Emmons, 31 M.J. 108, 111

(C.M.A. 1990); MCM Part IV 4 2b. Therefore, the military

judge should have simply granted the motion for a finding of

not guilty as to the affected portion of the specification of

Charge II, without breaking out a new “specification 2.”

We consider this to have been plain error not waived by

the defense. This is not a case where an instruction on a

legitimate lesser-included offense is affirmatively waived by

the defense. Compare United States v. Strachan, 35 M.J. 362

(C.M.A. 1992), cert. denied, _ U.S. 113 S. Ct. 1595 (1993);

and United States v. Spears, 39 M.J. 823 (A.F.C.M.R. 1994).

We also reject the government’s reliance on R.C.M. 603(d).

That rule states that “major” changes to charges and

specifications may not be made “over objection of the accused

unless the charge or specification affected is preferred anew.”

The government concedes this new specification was a

“major” change to the charge without benefit of preferral, but

argues the accused’s failure to object permitted it. We are not

prepared to extend R.C.M. 603(d) to this situation, where the

defense acquiesced in the mid-trial creation of a new

allegation based on an erroneous assumption that it reflected a

lesser-included offense of the properly charged offense.

12 10 U.S.C. § 879 (1988).

46a

Accordingly, we will set aside the finding of guilty of

specification 2 of Charge II, and dismiss that specification.

Because the acts reflected in that specification (sexual

intercourse with his adolescent daughter over a two and

one-half year period) formed a significant portion of the

offenses for which the accused was sentenced, we cannot

conclude that the accused suffered no harm from this error.

Therefore, we must now consider whether to reassess the

sentence or return the case for a rehearing on sentence.

In reassessing the appellant’s sentence, we must try to

determine what the sentence would have been absent the error.

United States v. Sales, 22 M.J. 305, 307 (C.M.A. 1986). If we

can determine what sentence probably would have been

adjudged, we may do so; otherwise, we must return the case

for a rehearing. United States v. Jones, 39 M.J. 315, 317

(C.M.A. 1994); United States v. Peoples, 29 M.J. 426 (C.M.A.

1990). If we are able to determine the sentence which

probably would have been adjudged, we then must decide

whether that sentence is nonetheless appropriate. Peoples, 29

M.J. at 428; Sales, 22 M.J. at 308.

After weighing the improper carnal knowledge

conviction against the remaining convictions of rape and

indecent acts with a child, we believe we can reassess the

sentence. The impact of the carnal knowledge conviction was

significant because of the number of incidents involved.

However, the rape of K was the most serious offense for

which the accused was convicted, and we are confident his

conviction for this crime, along with his conviction for

multiple incidents of indecent acts, had the greater effect on

the sentencing process. Accordingly, we reassess the sentence

and reduce the confinement portion to seven years. We have

given individualized consideration to the seriousness of the

convictions, the character and military performance of the

appellant, and all circumstances documented in the record of

47a

trial. United States v. Snelling, 14 M.J. 267 (C.M.A. 1982).

We find the sentence, as reassessed, to be appropriate.

We resolve the remaining assignments of error against

the appellant. We hereby set aside the finding of guilty of

specification 2 of Charge II. The remaining findings of guilty,

and that portion of the approved sentence which extends to a

bad conduct discharge, confinement for seven years, and

reduction to E-1, are correct in law and fact, and on the basis

of the entire record are

AFFIRMED.

Judge YOUNG concurs.

DIXON, Chief Judge (dissenting):

Appellant was convicted of child sexual abuse solely on

the basis of out of court statements of sexual abuse made by

his 13 year old daughter. The central issue is whether the

admission of the hearsay statements unfairly infringed upon

appellant’s right under the Sixth Amendment of the United

States Constitution to confront his accuser. Appellant argues

that hearsay evidence was erroneously admitted into evidence

and his conviction should be set aside. I agree.

Over defense objections, the military judge allowed

statements made by appellant’s daughter to the OSI and to Dr.

Boos, a pediatrician, to be presented as evidence. Despite the

fact the daughter recanted her Statements, did not appear at

the Article 32 investigation, and was not present at trial, the

military judge ruled her out of court statements did not

unfairly infringe upon appellant’s Sixth Amendment right to

confront and cross-examine his accuser. On appeal, appellant

claims the military judge misapplied the law in finding the

evidence was admissible as exceptions to the hearsay rule.

Government counsel argues the military judge’s ruling on the

admission of the hearsay evidence is entitled to “considerable

discretion” and should be upheld by this Court absent an

48a

abuse of discretion. United States v. Pollard, 38 M.J. 41, 49

(C.M.A. 1993); United States v. Orsburn, 31 M.J. 182

(C.M.A. 1990); United States v. Bridges, 24 M.J. 915

(A.F.C.M.R. 1987).

In my view, there was a clear abuse of discretion by the

military judge since the circumstances which the law would

deem as justification for admitting the doctor’s testimony and

the videotaped statement were missing. I believe it was error

to admit the daughter’s statement to Dr. Boos under Mil. R.

Evid. 803(4) as a “statement for the purpose of medical

diagnosis or treatment.” Likewise, I believe it was error to

admit her videotaped statement to the OSI under Mil. R. Evid.

804(b)(5) because the surrounding circumstances were

insufficient to show “particularized guarantees of

trustworthiness.” Idaho v. Wright, 497 U.S. 805, 111 L.Ed.2d.

638, 110 S. Ct. 3139 (1990).

I. Does the Medical Exception Apply?

Were the statements made to Dr. Boos by appellant’s

daughter furnished under circumstances which warrant a

presumption of their *rustworthiness? I think not. An out of

court statement is not admissible as a hearsay exception

merely because it is raade to a doctor. Nor is it admissible

solely because the doctor uses. the information for purposes of

diagnosis or treatment. To be admissible as a hearsay

exception the statement must be made for the purposes of

medical diagnosis or treatment and must be made by a patient

who has some expectation of receiving medical bexefit from

the medical diagnosis or treatment that is being sought.

United States v. Williamson, 26 M.J. 115, 118 (C.M.A. 1988);

United States v. Deland, 22 M.J. 70, 75 (C.MA. 1986).

In his findings of fact, the military judge concluded:

At approximately 1000-1030 hours, the declarant

49a

was interviewed by Major (Doctor) Stephen C.

Boos, a pediatrician assigned to Wiesbaden

Hospital. Mrs. Holman remained present during the

examination at the declarant’s request. The

interview was conducted at the Wiesbaden Hospital

in Dr. Boos’ pediatric clinic. He informed the

declarant that he was a doctor and that he was there

to provide medical treatment for her. His

questioning of the declarant was designed to elicit

facts upon which he could base diagnosis and

treatment. He physically examined the declarant and

subjected her to clinical testing.

The declarant was 13 years old at the time, was of at

least average intelligence, and fully understood that

Dr. Boos’ interview and physical examination of her

was being done for purposes of medical diagnosis

and treatment. She expected medical treatment and

her statements were made in order to receive that

treatment.

** &

The declarant’s statements to Dr. Boos on 18 Mar

92 are admissible under MRE 803(4), since the

Statements were made for purposes of medical

diagnosis and treatment, and with the expectation of

receiving medical treatment.

The military judge’s findings read like a classic case for

the admission of hearsay evidence. Both prongs needed for

admission, namely (1) made for purposes of medical

diagnosis and treatment and (2) expectation of receiving

medical treatment, are specifically found. However, it is

impossible for me to accept the judge’s findings based on a

factual analysis of the record. His finding that the declarant

“expected medical treatment and her statements were made in

0

50a

order to receive that treatment” require a “leap of faith” that

I'm unwilling to make. I choose not to adopt the military

judge’s findings when the circumstances surrounding the

taking of the daughter to the hospital do not suggest she

desired, asked for, or even appreciated the need for medical

treatment. United States v. Armstrong, 36 M.J. 311, 313

(C.M. A. 1993).

A key question is why was appellant’s daughter taken to

the hospital? Did either of her parents take her for some type

of treatment? No. Did Mrs. Holman, the person who initially

heard about the sexual abuse and the person who took her the

next morning to the OSI, suggest she needed medical

attention? No. Did the OSI immediately refer her for medical

attention? No, they first interviewed her for 30 minutes. Did

anyone ask declarant if she would like to be seen by a doctor?

Again, no.

The circumstances which brought appellant’s daughter

to the Wiesbaden <\.spital were described in the following

direct testimony of Special Agent Dick during the Article

39(a) session:

Q. And how long did that first interview take?

A. Approximately 30 minutes.

Q. And that interview took place at the Law

Enforcement Desk? Law Enforcement Office?

A. Yes, sir. They had an empty rcom that we used.

Q. Okay. What did you do then?

A. At that point I called the clinic and had the

Patient Affairs personnel grab Miss Ureta’s records.

We took Miss Ureta to the Wiesbaden hospital for

medical examination.

Q. Did she ask you to be taken to the hospital?

A. No, sir.

Sla

Q. Indeed, you told her that we are going to do this,

we are going to take you to the hospital for an

examination?

A. No, sir. No, sir, I did not. I asked her if she

would consent to an examination because medical

evidence had to be gathered in these types of

allegations.

Q. Did she sign a consent form?

A. I did not ask her for a consent form, that was the

doctor’s job. The doctor had to prove to himself that

she was consenting to his medical examination.

The record shows appellant’s daughter was told she was

being taken to the hospital not for treatment or diagnosis, but

rather for an examination for the purpose of obtaining medical

evidence. The following direct testimony of Dr. Boos fails to

disclose that she was at the hospital for anything other than an

examination:

Q. All right, sir. As far as the examination of

Katherine Ureta, when she came to your office who

else, if anyone, was present?

A. Within my office, Mrs. Debra Holman was

present.

Q. As far as prior to her coming into your office,

was anyone else around?

A. Well, we had been notified that there was a

suspected child sexual abuse being brought to the

Emergency Room, and so we notified them that,

you know, we would be able to see the case, that I

would be able to clear my schedule and see the

person. And then when nothing happened I went

over there and eventually Katherine and Mrs.

Holman and two OSI agents arrived, and I discussed

52a

the case with the OSI agents in a back room while

Katherine and Mrs. Holman were out in the waiting

room.

Q. After this briefing on the case, what happened

next?

A. Well, they had brought them to the Emergency

Room and the Emergency Room notified us. The

OSI was uncertain as to how the evaluation would

be performed, whether it would be done in the

Emergency Room by an emergency room physician

or by a gynecologist, or by a pediatrician. And I

informed them that I did most or these exams and

that I preferred to do it because I had had some

training and experience in the interview as well as I

felt I could be, you know, more sympathetic and

empathetic and supportive of the patient than a

gynecologist. And I notified them that I was familiar

with rape protocol and there are specimen collection

needs, and then it was determined that I should do

the exam. And then we left the back room and came

out and had the patient and Mrs. Holman follow us

to the waiting room. I went in, got my office ready,

told my staff whet supplies I would need, and then

we Called Mrs. Holman and Katherine in and began

the interview.

Q. Okay. And when they came in, what did you say

to them?

A. Well, first I asked whether Katherine wanted to

have Mrs. Holman there or whether I could talk to

her alone, if she needed to have Mrs. Holman there.

She indicated that she preferred to have Mrs.

Holman there, so I had them both sit. Then I told

them who I was, Dr. Boos, that I was a pediatrician,

53a

let them know that I had heard a little bit of

Katherine’s story and that I wanted to talk to her

and to examine her to see whether any harm had

come to her, whether she had caught any infections,

but that before I started, to do the best job I needed

to hear her story from herself.

I submit the government failed to show appellant’s

daughter was seeking medical treatment. When the medical

exception to the hearsay rule is invoked, it is incumbent upon

the moving party to show not only that the medical person

was treating or diagnosing the patient, but also that the

patient furnishing the information was seeking such help.

Williamson at 118. In my view, this scenario makes the

medical hearsay exception a sham. The doctor here was

merely asking declarant to repeat the story she had already

told Mrs. Holman and the OSI. The notion that she would be

truthful because she was seeking medical help simply does

not apply in this situation.

The medical exception to the hearsay rule presupposes

something more than a mere physical examination. It requires

the patient to believe something is medically wrong or that

there is a medical condition that requires treatment. My

common sense analysis of the circumstances tells me that

appellant’s daughter was not seeking or expecting a medical

benefit when she was asked to tell her story to Dr. Boos.

Consequently, I find no reasonable basis to conclude that it is

likely that declarant was more truthful in relaying her story to

Dr. Boos than she was in telling it to Mrs. Holman or the OSI.

Everything she was told by the OSI and Dr. Boos indicates

that because of her story (whether truthful or not), she would

receive a medical examination. The premise underlying the

exception is that one “undergoing diagnosis or receiving

treatment from a trained medical professional has an incentive

to be truthful because such answers will promote” the

54a

patient’s wellbeing. United States v. Welch, 25 M.J. 23, 25

(C.M.A. 1987). In situations like this, where it is not clearly

shown that declarant was aware that she was being medically

treated, the entire premise of the reliability of the offered

statement dissipates. United States v. Edens, 31 M.J. 267, 269

(C.M.A. 1990). I find appellant was denied his right of

confrontation and materially prejudiced by the erroneous

admission of his daughter’s hearsay statements to Dr. Boos.

II. Was Videotape Admissible as Residual Hearsay?

I also find the military judge’s admission into evidence of

the videotaped statement of appellant’s daughter over defense

objection to be error. Following her examination by Dr. Boos,

appellant’s daughter was taken back to the OSI office to be

reinterviewed on videotape. She responded to questions posed

by Special Agent Dick during a 35 minute session. In essence,

she recounted the same story she had previously provided to

Mrs. Holman, the OSI and Dr. Boos. In ruling the evidence

admissible, the military judge stated:

Prosecution Exhibit 1, the videotape of 18 Mar 92,

is admissible under MRE 804(b)(5), since the

declarant is unavailable, the exhibit is offered as

evidence of a material fact, it is more probative of

the point for which it is offered than any other

evidence that the government can procure, it has

circumstantial guarantees of trustworthiness, the

accused’s 6th Amendment right to confront his

accuser is available to the accused, and the interests

of justice will be best served by admission of this

exhibit. Moreover, the government’s legitimate need

for this evidence is not outweighed by any unfair

prejudice te the accused.

I find error in the admission of the videotaped statement

55a

because it does not satisfy the “indicia of reliability”

requirement established by Idaho vy. Wright, supra. As in

Wright, the question is not whether the declarant was

unavailable, but rather whether the statement bore sufficient

indicia of reliability to withstand scrutiny under the

Confrontation Clause. In order to be admitted under the

residual hearsay exception, an out of court statement must be

supported by a “showing of particularized guarantees of

trustworthiness.” Wright, at 817. In other words, the

surrounding circumstances must so clearly point to declarant’s

truthfulness that cross examination would be of marginal

utility in the search for truth. Jdaho v. Wright, supra at 820

In support of his decision to admit the videotaped

Statement, the military judge made the following findings:

Although the videotape repeats the allegations as

Stated to Dr. Boos, the videotape is the most

probative evidence that the government can procure

through reasonable efforts in light of the declarant’s

subsequent recantation.

The videotape interview has ample guarantees of

trustworthiness. The declarant’s statement was

obtained without leading questions and is in her

own words. It is the freely conceived product of the

declarant as opposed to the result of suggestive

interrogation. The statement is voluntary, is under

oath, is detailed, is factual as opposed to

conjectural, and is based on first~hand knowledge

of the events. The declarant was relatively mature

and aware of the need to be truthful, she lacked a

motive to falsify at the time, she was a member of

the accused’s household and depended upon him for

Support, and she subjected herself to ridicule and

social stigma among her friends and family by

making the statement. The statement was made by

ie wie eee

56a

the declarant shortly after the incident to which the

statement relates with little opportunity to reflect,

and is similar to other “firmly rooted hearsay

exceptions,” i.e., it is a restatement of allegations

made earlier that same day to Dr. Boos in a very

reliable setting that qualifies under MRE 803(4),

and is also a restatement of allegations made the day

before to Jennifer Holman in a reliable setting that

nearly qualifies under MRE 803(2).

** *

The accused’s 6th Amendment right to confront and

cross examine his accuser is not unfairly infringed

upon by allowing previous statements of the

declarant into evidence, since the defense can

subpoena the declarant to explain why she recanted

her earlier statements. German law does not permit

the declarant to refuse to testify for her father.

Moreover, the defense has been given the

opportunity to introduce the declarant’s written

recantation in the event that it does not elect to call

the declarant in person.

While the military judge’s findings describe the

circumstances of the making of the videotaped statement in

considerable detail, | am not persuaded that they establish the

“particularized guarantees” of declarant’s trustworthiness

necessary for admission of the statement under the residuai

hearsay exception. It must be noted that the residual hearsay

exception is not a “firmly rooted” exception to the hearsay

rule. United States v. Hines, 23 M.J. 125, 134 (C.M.A. 1986).

The residual exception to the hearsay rule is to be rarely used

and is intended to apply only to “highly reliable” evidence.

United States v. Giambra, 33 M.J. 331, 334 (C.M A. 1991),

rev'd on other grounds, 38 M.J. 240 (C.M.A. 1993); United

States v. Dunlap, 39 M.J. 835, 838 (A.C.M.R. 1994).

57a

“Particularized guarantees” of trustworthiness means that

Statements admitted under the residual hearsay exception

must have equivalent guarantees of trustworthiness as

evidence admitted under a firmly rooted hearsay exception.

Mil. R. Evid. 804(b)(5); Idaho v. Wright, supra at 821. In

other words, it must be so trustworthy that adversarial testing

would add little to its reliability. In each case, the

circumstances which will qualify as “equivalent guarantees”

of trustworthiness are for the trial court to determine and

appellate courts to review. See United States v. Stivers, 33

M.J. 715, 720 (A.C.M.R. 1991).

The admission of a hearsay statement is much less likely

to offend the Sixth Amendment right to confrontation when

the declarant is available to testify under cross—examination.

United States v. Harjak, 33 M.J. 577 fn.4 (N.M.C.M.R. 1991).

When, however, as in this case, the declarant is not available

at trial, the accused has not had the opportunity to

cross-examine the declarant at any stage of the justice

process, counsel for the accused had not even had an

Opportunity to interview the declarant, and the declarant has

recanted the earlier statement, I submit appellate courts have a

greater responsibility to scrutinize the particularized

guarantees of trustworthiness to eliminate the possibility of

fabrication, coaching, or confabulation. Jdaho v. Wright,

supra, at 820.

Examining the military judge’s finding, I am not satisfied

the circumstances indicated therein provide the same high

degree of reliability we assume when a deeply rooted

exception to the hearsay rule is recognized. Nor am I satisfied

cross examination would have added little to the search for the

trustworthiness of declarant’s statement. In /daho vy. Wright,

the court suggested four factors which might properly relate

to the reliability of a hearsay statement by a child witness.

The four factors were (1) spontaneity and consistent repetition

58a

(2) mental state of the declarant (3) use of terminology

unexpected of a child of similar age, and (4) lack of motive to

fabricate. Idaho v. Wright, supra, at 821. In my view, none of

these factors were present in this case.

A videotaped statement made after repeated questioning

by Mrs. Holman, Dr. Boos, and the OSI could scarcely be

called spontaneous. As was noted in /daho v. Wright, when

there is evidence of prior interrogation, prompting, or

manipulation by adults, spontaneity may be an inaccurate

indicator of trustworthiness. Declarant’s trustworthiness could

not be judged from the mental state that declarant displayed.

The only change in her emotional state occurred when she

was relaying how her mother had physically abused her. In

her videotaped statement, declarant used no unexpected

terminology. If anything, her description of events was

somewhat lacking in detail. Finally, I find the military judge’s

conclusion that declarant “lacked a motive to fabricate at the

time” lacks any factual support. In view of declarant’s age (in

pubescence), unwillingness to confide in her mother,

knowledge of her mother’s unfaithfulness to her father,

frustration over her father’s failure to intercede to prevent the

mother’s physical abuse of the children, and desire not to

return to her home because of her mother’s physical abuse,

any conclusion that she lacked a motive to fabricate at the

time must be viewed with some suspicion. None of the factors

listed in the findings convince me that cross—examination of

declarant would have contributed little to the establishment of

her reliability.

Particularly disturbing in the findings by the trial judge

were his reliance upon other hearsay exceptions, his

suggestion that the defense could have subpoenaed the

declarant, and his ruling that the defense would be allowed to

introduce declarant’s written recantation. First, if admission of

declarant’s statements to Dr. Boos was error, as I believe it

59a

was, then the fact that the videotaped statement was similar to

it scarcely justifies its admission under the residual hearsay

exception. Nor does the fact that it was similar to statements

made to Jennifer Holman which were not admissible as

“excited utterances.” Admissibility of evidence under the

residual hearsay exception means it hasequivalent guarantees

of reliability to other hearsay exceptions, not that it is similar

to other evidence that didn’t have sufficient indicia of

reliability to warrant admissibility under a “firmly rooted”

hearsay exception.

I am at a loss as to how the defense had a greater

opportunity to subpoena declarant to appear in a court—martial

in Germany than did the government. The findings of the

military judge are tantamount to a finding that appellant

waived his right of cross-examination. I do not believe that

finding is supported by the record. The suggestion that

granting appellant permission to admit declarant’s written

recantation somehow balances the constitutional concerns

related to the admission of her videotaped accusation is

difficult for me to comprehend.

I am simply not convinced the videotaped interview by

the law enforcement officer in this instance possessed

sufficient guarantees of trustworthiness to make the statement

so reliable as to preclude the necessity for cross—examination.

See United States v. Barror, 23 M.J. 370, 372 (C.M.A. 1987);

United States v. Palacios, 32 M.J. 1047 (A.C.M.R. 1991),

rev'd on other grounds, 37 M.J. 366 (C.M.A. 1993).

Pursuant to my obligation under Article 66(c), I cannot

vote to affirm this conviction. To do so, I would be saying that

appellant’s constitutional right to confront his accuser was

superfluous in this case and would not have assisted in any

meaningful way in the search for truth. I would be saying that

I am satisfied having appellant’s conviction rest solely upon

hearsay evidence. For the reasons indicated above, I do not

En te Teena ae Cee

60a

find the hearsay evidence presented at trial to have sufficient

reliability to be admitted, and certainly not trustworthy

enough alone to convince me beyond a reasonable doubt of

appellant’s guilt.

There are many cogent reasons why the law has an

inherent distrust of hearsay evidence. Mil. R. Evid. 802. Even

when admitted under one of the authorized exceptions, we

should ask ourselves if the hearsay evidence is sufficiently

convincing to be reliable and trustworthy on the issue of guilt.

We must look to the facts and circumstances to answer that

question. When the hearsay evidence is corroborated by other

evidence of guilt, when an accused has entered a plea of

guilty or when an opportunity to cross examine the declarant

was waived, the inherent distrust of hearsay evidence is

attenuated. However, when an accused enters a plea of not

guilty, when his accuser recants her story, when the accused

has not been given an opportunity to cross examine the

declarant, and when there is no evidence of guilt other than

the hearsay testimony, we have a situation which cries out for

close scrutiny of the reliability of the hearsay evidence. Is the

hearsay evidence more convincing because it was heard by

more than one person or was repeated on more than one

occasion. In my opinion, it is not. The mere fact that

something has been repeated does not make it more

believable. In our system of justice, a statement becomes most

believable when it is made in open court and is subjected to

vigorous cross examination. That time honored and

constitutionally protected test did not occur in appellant’s

trial. It is the responsibility of this Court to determine for

ourselves whether the reliability of evidence is sufficient to

convince us beyond a reasonable doubt of appellant’s guilt.

Based upon my review of the entire record, I am not

convinced his conviction is correct in law and in fact. Article

66(c) UCMJ.

OFFICIAL

ALVIN J. STRIBLING

Technical Sergeant, USAF

Chief Court Administrator

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