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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1997
- **Citation:** 519 U.S. 1059

## Text

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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8a

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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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 t

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1870%3A1. Public record. Not legal advice.