Petition for Writ of Certiorari — Cabrera-Frattini v. United States (No. 08-830)
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No.
OFFICE OF THE CLERK
In The
SUPREME COURT OF THE UNITED STATES
JOSE R. CABRERA-FRATTINI, LANCE CORPORAL,
UNITED STATES MARINE Corps,
Petitioner.
UNITED STATES OF AMERICA,
Respondent.
On Petition for Writ of Certiorari to the
United States Court of Appeals for the Armed Forces
PETITION FOR A WRIT OF CERTIORARI
S. BABU KAZA KATHLIEEN LL. KADLEC
Captain, Licutenant,
U.S. Marine Corps JAGC, USN
Counsel of Record Counse]
1254 Charles Morris StS 1254 Charles Morris St. Sie
Bldg 58, Suite LOO Bhly 58, Suite 100
Washington, DLC. 2057 Washington, 1.0. 20874
(202)-6859- 7093 (202)-685° 7394
1!
QUESTION PRESENTED
The Appellant was accused of having sex with a 12
year old girl, but while the government had free
access to talk to the alleged victim to prepare for
trial, the defense was not given any opportunity to
interview the alleged victim. The military judge
ordered the alleged victim to submit to a pretrial
deposition in order to remedy this unequal access to
crucial evidence. Shortly before trial, the alleged
victim was abruptly found unavailable to testify,
and, over defense objection, a video of her deposition
testimony was played for the jury. The question
presented is:
Did the lower court err when it found that the
deposition was a _ Constitutionally — effective
opportunity for cross-examination, where the
deposition was the first and only opportunity for the
defense to speak to the alleged victim, and the
deposition had been specifically ordered to remedy
the defense’s inability to effectively prepare for trial?
111
TABLE OF CONTENTS
QUESTION PRESENTED.......00.cccccssscssevcecscessoess i
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CONSTITUTIONAL AND STATUTORY
PES VERNON ES Be Os Fie sisis sss eave senenevaccesabaaedens 1
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REASONS FOR GRANTING THE PETITION....... 7
The Lower Court Has Decided an Unsettled
Question of Federal Constitutional Law:
Whether a Deposition Was a Constitutionally
Effective Opportunity for Cross-Examination,
Where the Deposition was the First and Only
Opportunity for the Defense to Speak to the
Alleged Victim, and the Deposition had Been
Specifically Ordered to Remedy the Defense’s
Inability to Effectively Prepare for Trial.
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APPENDIX C
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TABLE OF AUTHORITIES
United States Supreme Court
Crawford v. Washington,
541 U.S. 36 (2004)........
Delaware v Fensterer, 474 U.S. 15 (1985)......
Mancusi v Stubbs, 408 U.S. 204 (1972).......
Ohio v. Roberts, 448 U.S. 56 (1980)............
United States Circuit Court of Appeals
Harrison v Quarterman, 496 F.3d 419
5" Civ, DOGG). «cc cccccsncs
United States Court of Appeals
for the Armed Forces
United States v Cokelev, 22 M.J. 225
(os 2 en
United States v Conner. 27 M.J. 378
MLA. TSG... cs ccccseces
United States v Crockett, 21 M.J. 423
(os. |
l/nited States v Fluellen, 40 M.J. 96
OMA. 1004)........4...
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Page
passim
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Saiaeeneas 8
passim
cuaewokaune 9
aseuawewes 3
United States v Vanderwelr, 25 M.J. 263
i cee ae chiciidankcikaieatonacons S)
Navy-Marine Corps Court of Criminal Appeals
United States v Cabrera-Frattini, 65 M.J. 950
(N.M.Ct.Crim.App. 2008)........ 11
PETITION FOR A WRIT OF CERTIORARI
OPINIONS BELOW
The Court of Appeals for the Armed Forces (CAAF)
summarily affirmed the decision of the Navy-Marine
Corps Court of Criminal Appeals (NMCCA) at
United States v. Cabrera-Frattini, 2008 CAAF
LEXIS 1086 (C.A.A.F. 2008). App. A, infra, at la.
The principal opinion of the NMCCA is United
States V. Cabrera-Frattini, 65 M..J. 950
(N.M.Ct.Crim.App. 2008). App. B, infra at 2a. The
case had previously been remanded to the NMCCA
by the CAAF after a successful government appeal at
United States v. Cabrera-Frattini, 65 MJ. 241
(C.A.A.F. 2007). App. C, infra, at 20a. The original
appellate opinion by the NMCCA is at United States
v. Cabrera-Frattin, NMCCA No. 200201665,
unpublished op. (N-M. Ct. Crim. App. August 2,
2006). App. D, infra, at 38a.
JURISDICTION
The Court of Appeals for the Armed Forces granted
review of Petitioner's case and affirmed his
conviction on October 1, 2008. This Court's
jurisdiction is invoked under 28 U.S.C. § 1259(3).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Sixth Amendment to the United States
Constitution is reproduced in App. FE, infra at 98a.
i)
STATEMENT
During a two month period in the Spring of 2001,
T**** O***** (“PO”), a twelve year old girl, engaged
in heavy drinking and multiple sex acts with several
different partners, to include male Maries, while
spending several nights at the home of Private First
Class (PFC) Roy McNamara, USMC.! After TO’s
activities came to hght, the Naval Criminal
Investigative Service (NCIS) conducted an
investigation, and received a statement from TO
indicating that she had engaged in sex acts with PFC
McNamara and with Lance Corporal (LCpl) Fredery
Tapia, USMC, but with no mention of the Appellant.?
PFC McNamara provided a statement indicating he
had had sex with TO, and also that PFC Tapia and
Appellant had sex with TO.* Appellant was
subsequently placed in pretrial confinement, and
charged with carnal knowledge and indecent acts for
alleged sexual intercourse with TO.*
TO did not testify at the ensuing Article 32
hearing, nor were Appellant’s trial defense counsels
allowed to interview her: TO and her mother refused
to make themselves available to the defense, and
only spoke to the government counsel.® Asa result,
the defense counsel requested the convening
authority to order a deposition of TO. a request
which was denied.
After arraignment, defense counsel requested the
| Appellate Exhibit CAR”) XXXV at 33: Record (“R”) at 291,299
-AE XXXV at 13; (R. at 348).
‘(R. at 302,303).
* Charge Sheet
»(R. at 33): AE IT at 3.
3
military judge order a new Article 32 because, among
other reasons, they had not been given an
opportunity to speak to TO or have her subject to
cross-examination.® A deposition was requested to
both give the defense an opportunity to speak to TO
in a controlled environment, and to acquire sworn
testimony which could later be used at trial] for
impeachment.’ The government counsel responded
by arguing that he would try to make efforts to have
TO available for interview, but that she would
definitely be present for trial.®
The military judge denied the request for a new
Article 32 hearing, but did order a deposition of TO,
and ordered it to be considered by the convening
authority.2 In making his ruling, the military judge
stated, “[T]he accused should not be denied the
opportunity for cross-examination of a key
Government witness under oath prior to trial.”'° TO
was subsequently deposed on November 13, 2001 by
government counsel and defense counsel, in the
presence of appellant.!!
On December 4, 2001, TO was admitted to Spirit
of St. Louis Hospital due to her therapist’s concern
that her mental and emotional health had recently
deteriorated.!* She remained a patient there for 7
days, and was released on December 10, 2001. On
December 11, 2001, a defense motion in limine to
prevent the Government from offering TO’s
6 (R. at 24.)
“dR. at 24,25,31.)
*(R. at 27,28.)
“(Rat 65.)
'0 Td. (emphasis added).
TAFE XXXV.
'2 (R. at 174.)
4
deposition in lieu of her live testimony was litigated
before the military judge.
The defense counsel stated that he had seen the
deposition as an opportunity to finally interview TO,
and a tool to prepare for her actual cross-
examination at trial. He stated, “The defense’s
understanding what the purpose of [the deposition]
was to interview [TO] .. . that’s how my preparation
was set up during the deposition . . . it was not the
defense’s goal to cross-examine her as if we were at
trial.”'3 Consequently, he argued, the deposition was
deficient: as defense counsel had never been
permitted to speak to TO prior to the deposition he
could not prepare an actual cross-examination, and
as he had been assured that TO would be at trial he
omitted several questions and topics which would
otherwise have been raised. !4
Ultimately, TO’s treating physician, Dr. Linda
Bock, provided sworn testimony before the court
which indicated that TO could not testify in court, as
it would create excessive emotional distress. In
discussing TO’s prognosis, Dr. Bock indicated that,
in general, “life stressors” tended to exacerbate the
symptoms of bipolar disorder.'*® Dr. Bock also
3 (R. at 94).
'4(R. at 94,95)(1f I had the chance to interview her ahead of
time and then we had a deposition, I would agree with the
Government, because at the deposition I would have known
what she was going to say. | would have known how to
properly cross-exumine her, and I would have had that evidence
before me at my fingertips to present to her say, what about
this? What about this inconsistent statement? What about this
lapse in memory? What about this aleohol that vou just
identified? | couldn't do that because I don’t have a crvstal
ball.”).
I5(R. at 177.)
5
related that TO indicated she did not want to testify
at Appellant’s court-martial}:
[TO] focused on [testifying] as though
that was part of why she couldn’t go on
living. It would be better to be dead. I
don’t want to go back to court. I'm so
tired of all this. [TO] was not willing to
discuss the events. She had a very
dictatorial, entitled, self-important
attitude, attitude with a capital A. It
was like don’t bother me with this. I
have got a life to live. I don’t want to be
doing depositions. !®
Dr. Bock concluded her direct examination by stating
that TO testifying at trial would “[NJot be good for
her. It would be bad for her.”!7 On cross-
examination, Dr. Bock acknowledged that her actual
interaction with TO was limited to a total of one and
a half (1%) hours over a five (5) day period. Dr. Bock
acknowledged that after TO was allowed to return to
school after she was released from the hospital, and
she simply needed to receive follow-up treatment
with a therapist.'® Dr. Bock had no further contact
with TO after her release from the hospital on 10
December, and had no actual knowledge of TO’s then
existing mental condition.!%
Ultimately, Dr. Bock indicated that TO would not
be able to healthily discuss the allegations against
Appellant until she was “18-25 years old.”“" Dr. Bock
made it clear that while it was physically possible for
(CK. at 179.)
7 (R. at 180.)
Ie (R. at 191.)
“™(R. at 191,192.)
2° (R. at 198,203.)
6
TO to testify in court, doing so would have no
medical value as it would in no way be beneficial to
TO’s recovery.?!
The military judge ruled that TO was unavailable,
and denied the motion in limine, thereby permitting
the Government to use the videotape of TO’s
deposition as substantive evidence before the jury.”
The judge addressed 6th Amendment confrontation
clause concerns, but, relying on Ohio v Foberts,
ultimately found that the deposition contained an
adequate cross-examination and had sufficient
guarantees of reliability to be admitted as former
testimony.23
After the deposition was ruled admissible, defense
counsel asked the military judge if he could choose
which of his cross-examination questions from the
videotape he could have played before the members,
stating, “If she was testifying I would get to choose
what I asked her in cross and [I may wish to do that
as well in the videotape.”“4 The military judge
refused the request, stating that the cross-
examination would have to be entered in its entirety
or not at all.2° In light of this ruling. the defense
elected to not play the cross-examination at trial.26
“1 (Rat 198,202.)
(KR. at 230.)
-* RR. at 230,231) When balanced against the deprivation of
confrontation right. the interests of public policv and necessities
of this case warrant dispensing with a confrontation at this
trial.) See also Ohi v Roberts, 448 U.S. 56 (1980).
“4 (RK. at 239.)
Td.
“6 (R. at 28s)
,
REASON FOR GRANTING THE PETITION
The Lower Court Has Decided an Unsettled Question
of Federal Constitutional Law; Whether a Deposition
Was a Constitutionally Effective Opportunity for
Cross-Examination, Where the Deposition was the
First and Only Opportunity for the Defense to Speak
to the Alleged Victim, and the Deposition had Been
Specifically Ordered to Remedy the Defense’s
Inability to Effectively Prepare for Trial.
Under Crawford v Washington, after 1t is first
established that evidence is testimonial hearsay and
the declarant is unavailable, the second requirement
for admissibility is that there must have been an
adequate opportunity for cross-examination. In
overruling Ohio v Roberts, Crawford emphasizes that
cross-examination under the Confrontation Clause is a
procedural! right, not a substantive right.2?
Thus, the Confrontation Clause “commands, not
that evidence be reliable, but that reliability be
assessed in a particular manner: by testing in the
crucible of cross-examination.”“° Additionally,
California v Green clarifies that under the
Confrontation Clause there must have been an
opportunity for “full and effective cross-
examination.’”9 Notably. Delaware v Fenstere:
admonishes that “Generally speaking, the
Confrontation Clause guarantees an opportunity for
effective cross-examination, not cress examination
that is effective in whatever way, and to whatever
7 See Crawford v Washington, 541 U.S. 36,61 (2004)
23 Ld
9399 U.S. at 158
8
extent, the defense might wish.”#0
Similarly, Ohio v Roberts indicates that an
opportunity for cross-examination at a preliminary
hearing would be sufficient to satisfy the
Confrontation Clause.?! Notwithstanding this
language from Fensterer and Hoberts, this Court has
still acknowledged that there are guidelines which
must be followed for assessing whether there was a
“full and fair opportunity” for cross-examination,
guidelines which must now be refocused in light of
Crawford’s new emphasis on confrontation as a
procedural right. Specifically, Mancusi v Stubbs
found that cross-examination by a defense lawyer
who had only been appointed four-days previously
was per se deficient, and not a full and fair
opportunity for cross-examination: the procedural
posture of the case was itself invalid to satisfy the
Sixth Amendment.*2
A similar precedent was established by the Court
of Military Appeals in United States v Conner, where
the court contemplated a due process challenge to
the use at trial of an unavailable witness’s Article 32
testimony. The court found that the opportunity for
cross-examination would be decificent if “the defense
requested information for use in cross-examining a
witness at an Article 32 hearing, but the requested
information was withheld by the Government and
not made available to the defense.”3?
In the instant case, the Government had free
access to speak to TO, but the defense was denied
° Delaware v Fensterer, 474 U.S. 15, 20 (1985).
! Ohio v Roberts, 448 U.S. at 73.
- See Mancusi v Stubbs, 408 U.S. 204 (1972).
see United States v Conner, 24 M.J. 378, 390 (C_.M_A. L989)
9
any opportunity to obtain an interview.*4 Asa
result, the defense requested the convening authority
to order a deposition of TO. In the government
counsel’s endorsement to the convening authority, he
recommended the deposition request be denied,
stating, “(T]here is absolutely no evidence that [TO]
will be unavailable for trial. In fact the parents of all
three minors have stated to Government counsel
that they will be present [at] trial.”*5 In accordance
with the trial counsel's reeommendation, the
convening authority denied the request.?6
Rule for Courts-martial 701(e) provides that the
defense will have equal access to interview witnesses
prior to trial.’’ The Government’s failure to ensure
equal access was what prompted the military judge
to order the deposition. Although the Article 32
would be reconsidered as part of the deposition, the
defense was never informed that there was any
possibility TO would become unavailable. To the
contrary, the Government repeatedly assured the
defense and the military judge that TO would be
available for trial. 38 Thus, this deposition is unlike
depositions which are specifically ordered in
anticipation of witness unavaulability.*”
34 (R. at 33).
+> AE XIV at 2.
46 AE XIV at 1.
37 RULE FOR COURTS-MARTIAL 701(e)( Each party shall
have ... equal opportunity to interview witnesses and inspect
evidence. No party may unreasonably impede the access of
another party to a witness or evidence.”)
8 (R. at 27.28): AE XIV at 2
" See, e.g, United States v Crockett, 21 M.J. 423 (1986):
Umited States v Cokeleyv, 22 M.J. 225 (C.M.A. 1986): United
States v Vanderweir, 25 M.J. 263 (C.M.A. 1987).
10
Once the deposition was ordered, the defense
counsels ceased their efforts to interview TO. As
there would be a deposition there was no need to
increase TO’s stress by having her speak to defense
more than once.*° Hence, the deposition was the
only time the defense had any contact with the
essential Government witness, but they were never’
informed that it would be their on/y opportunity.
Procedurally, as a matter of due process as well
as under R.C.M. 701(d), there can be no doubt that it
would be improper for a defense counsel to be denied
access to an essential Government witness until his
opportunity for cross-examination at the actual
court-martial. Indeed, if a defense counsel does not
make any effort to interview relevant witnesses prior
to a court-martial it is a strong basis for a claim of
ineffective assistance of counsel.1!
Yet, the instant case lacks the due process even of
the above scenario, as at least under those
circumstances the defense counsel would have
known that he was conducting his ultimate cross-
examination of the key Government witness. This
was not true in the instant case, as the defense
counsel was assured that TO would be at trial four
weeks later, and believed he was only conducting
(Rat 24,2831).
4! See United States v Fluciien, 40 M.J. 96,98 (C.M.A.
1994)(“Effective counsel will contact potential witnesses to
determine the facts, not necessarily the facts admissible in
evidence. but all the facts. This can be done by talking to all
potential witnesses. counsel for any suspects where there might
be an indication that rights were invoked, and by visiting the
scene of the crime. (citations omitted): Harrison v Quarterman.
496 F.3d 419, 426 (5 Cir. 2005) CIf counsel does not speak toa
witness, then counsel ‘1s 1ll-equipped to assess his credibility or
persuasiveness as a witness. VMeitations omitted).
1 |
trial preparation.??
A cross-examination in which counsel has been
denied a prior equal opportunity to interview the
witness, and had no notice that his first contact with
the witness was actually his only opportunity for
cross-examination, should be considered little more
than a shadow of the bedrock procedura/ guarantee
contemplated by Crawford, and can not be considered
sufficient to have satisfied Appellant’s rights under
the 6" Amendment.
The lower court erroneously excuses the procedural
violations attendant to the cross-examination of TO,
by counter-factually referring to the violations as
“tactical decisions” by trial defense counsel.*? Yet, the
trial defense counsel directly stated on the record that
the defense was misled and prejudiced by the actions
of the government, and was therefore not able to
conduct an actual cross-examination. Further, the
factors cited by the lower court--that appellant faced
the same charges at the deposition and had the same
incentive for cross-examination--are irrelevant to any
assessment of procedural fairness and whether
Appellant was extended his due process right to
confrontation.
Certainly, it must be acknowledged that there are
procedural circumstances where even if an accused
has the “same incentive” during cross-examination,
the opportunity for cross-examination could still be
found Const)tutionally ineffective, such as where the
government has withheld relevant evidence from the
defense.
This Court should grant certiori to identify the
(RR. at 94.95).
4565 MJ. at 953, 954.
12
parameters of these circumstances, and should hold
that where the government has denied the defense
access to a key witness, then the presumptive first
interview of that witness may not, by surprise, later
operate as the only opportunity for cross-examination
and still held to be Constitutionally effective.
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
S. BABU KAZA
Captain,
U.S. Marine Corps
Counsel of Record
1254 Charles Morris St SE
Bldg 58, Suite 100
Washington, D.C. 20374
(202)-685- 7093
KATHLEEN L. KADLEC
Lieutenant,
JAGC, USN
Counsel
1254 Charles Morris St SE
Bldg 58, Suite100
Washington, D.C. 20374
(202)-685-7394
la
Appendix A
US. v. Jose R. CABRERA-FRATTINI.
No. 08-0524/MC.
UNITED STATES COURT OF APPEALS FOR THE
ARMED FORCES
2008 CAAF LEXIS 1086
October 1, 2008, Decided NOTICE: DECISION
WITHOUT PUBLISHED OPINION
PRIOR HISTORY: [*1]
CCA 200201665.
United States v. Cabrera-Frattini, 65 M.J. 950, 2008
CCA LEXIS 74 (N-M.C.C.A., 2008)
OPINION
On consideration of the petition for grant of
review of the decision of the United States Navy-
Marine Corps Court of Criminal Appeals, it is
ordered that said petition is hereby granted, and
that the decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
2a
Appendix B
UN:iTED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
J.F. FELTHAM, F.D. MITCHELL, D.E.
O'TOOLE
Appellate Military Judges
UNITED STATES OF AMERICA
Vv.
JOSE R. CABRERA-FRATTINI
LANCE CORPORAL (E-3), U.S. MARINE
CORPS
NMCCA 200201665
GENERAL COURT-MARTIAL
Sentence Adjudged: 25 January 2002.
Military Judge: Col Alvin Keller, USMC.
Convening Authority: Commanding General,
Marine Corps Recruit Depot, Parris Island, S.C.
Staff Judge Advocate's Recommendation:
Colonel M. Fisher, USMC.
For Appellant: LT Jennie Goldsmith, JAGC, USN:
Capt Babu Kaza, USMC.
For Appellee: Maj Brian Keller. USMC.
28 February 2008
Ce ee ee
O'TOOLE, Judge:
Officer and enlisted members, sitting as a
general court-martial, convicted the appellant,
contrary to his pleas, of carnal knowledge and of
committing an indecent act with a minor, in
violation of Articles 120 and 134, Uniform Code of
Military Justice, 10 U.S.C. §§ 920 and 934. The
members sentenced the appellant to confinement for
three years, forfeiture of all pay and allowances,
reduction to pay grade E-1, and a dishonorable
discharge. The convening authority approved the
sentence as adjudged.
After carefully considering the entire record of
trial, the appellant’s seven assignments of error,! the
' The appellant's assigned errors are contained in Appellant’s
Brief of 7 March 2005 and Appellant’s Supplemental Brief of 31
August 2007:
1. The military judge erred to the substantial prejudice
of appellant when he failed to dismiss the senior
member after learning that [TO's] stepfather was one of
his drill instructors.
Il. Appellant was denied his night to confrontation
under the Sixth Amendment by the military judge's
finding that the primary witness against him was
unavailable and admitting her deposition during trial.
4a
briefs and supplemental briefs of the appellant and
of the Government, we conclude that the findings
and sentence are correct in law and fact and that no
error materially prejudicial to the substantial rights
of the appellant was committed. Arts. 59(a) and
66(c).
Procedural History of the Case
A predecessor panel of this court set aside the
findings and sentence, holding that the trial judge
erred in allowing a pre-trial deposition to be
introduced into evidence in lieu of the personal
appearance of the putative minor victim, “lO,”
thereby violating the appellant’s Sixth Amendment
Right to Confrontation. United States v. Cabrera-
Frattini, No.200201665, 2006 CCA Lexis 218,
Ill. ‘he trial counsel improperly argued during
presentencing that the members should place
themselves in the position of the alleged victim.
IV. The trial counsel committed prosecutorial
misconduct in that he commented on Appellant’s
decision not to testify by using the word “unrebutted”
thirteen times.
V. Appellant's charges constitute an unreasonable
multiplication of charges since they both describe the
same act.
Vl. Based on the cumulative effect of assignment ot
error 1-1V, Appellant was denied a fair trial.
VIL. Appellant was subjected to cruel and unusual
punishment in violation of the Eighth Amendment to
the United States Constitution and Article 55, UCM.
Sa
unpublished op. (N.M.Ct.Crim.App. 2 Aug
2006)( Cabrera-Frattini J). This court’s decision was
overturned by our superior court, which held that
“(ulnder the particular facts of this case, we hold
that the military judge did not abuse his discretion
by concluding that the Government made good faith
efforts to procure the witness’s presence for trial,
concluding that TO was unavailable, and admitting
TO’s videotaped deposition testimony.” United
States v. Cabrera-Frattini, 65 M.J. 241, 248
(C.A.A.F. 2007) Cabrera-Frattini I).2
We also note that, during the pendency of the
appeal in this case, the Supreme Court decided the
case of Crawford v. Washington, 541 U.S. 36 (2004).
Crawford held that, in order to admit testimonial
hearsay, “the Sixth Amendment demands what the
common law required: unavailability and a prior
opportunity for cross-examination.” /d. at 68. On
the basis of that decision, the appellant now seeks
review asserting, inter alia, that the deposition
process in this case did not provide him a
constitutionally adequate prior opportunity for cross-
examination. The previous decision of this court
concluded otherwise.’? However, that summary
conclusion was not the product of a substantive
consideration of the narrow issue now presented.
Furthermore, even though “[t]his portion of the
’ Our predecessor panel, having granted relief on the second
assigned error, did not have occasion to review the other
assigned errors. We will do so.
*“There is no dispute that the deposition was properly ordered
and conducted, and the appellant had ample and full
opportunity to cross-examine TO, with a view toward the
deposition’s possible later use at trial.” Cabrera-Frattini 1,
2006 CCA Lexis 218, at 13.
6a
decision was not appealed” (Cabrera-Frattini Il, 65
M.J. at 243, n.2.), in view of the shifting of case law
from 2001 to the present, we do not consider the
narrow issue as having been waived. /d. at 245
(quoting Griffith v. Kentucky, 479 U.S. 314, 328
(1987)(holding that “a new rule for the conduct of
criminal prosecutions is to be applied retroactively to
all cases... pending on review.”).
We have, therefore, reviewed anew this
assigned error and affirm our prior holding. The
deposition was properly ordered and conducted, and
the appellant had a full and fair opportunity to
cross-examine ‘l'O.
Depositions and the Confrontation Clause
Background
The charges against the appellant arose from
his alleged sexual involvement with a teenage minor,
TO. TO did not testify at the Article 32, UCMJ,
investigative hearing. Following referral of charges,
the defense requested that the convening authority
order a deposition of TO. The convening authority
denied the request. At trial, the defense raised a
motion for a new Article 32, UCM, investigation.
The military judge found that the investigation had
been conducted in substantial compliance with RULE
FOR COURTS*-MARTIAL 405, MANUAL FOR COURTS:
MARTIAL, UNITED STATES (2000 ed.), but he ordered
an oral deposition of ‘lO, so that the defense would
have the opportunity to cross-examine the key
Government witness prior to trial. That deposition
7a
was conducted and videotaped on 13 November
2001. Present were the appellant’s individual
military counsel (IMC), assistant defense counsel,
the accused, and trial counsel. After direct
examination of TO by the trial counsel, the IMC
conducted cross-examination. About a month later,
TO was hospitalized and remained unavailable to
testify at trial. A portion of the videotape was then
admitted in lieu of her direct testimony, giving rise
to the first assigned error. The IMC objected to
playing the portion of the videotape containing his
cross-“examination ef TO and that portion was not
played.
Analysis: Purpose of Depositions in Criminal Cases
In military practice, the primary purpose of a
deposition under R.C.M. 702(a) is to preserve
testimony for future use at trial. MANUAL FOR
COURTS-MARTIAL, UNITED STATES (2000 ed.), App.
21, at A21-34 (citing Hearings on H.R. 2498 Before a
Subcomm. of the Comm. on Armed Services 81st
Cong. Ist Sess. 1064-1070 (1949)). The Analysis of
R.C.M. 702(a) notes that federal courts have
consistently construed the rule’s counterpart,
FEDERAL RULE OF CRIMINAL PROCEDURE 15(A), as a
device used to preserve future testimony and not as
a discovery vehicle. United States v. Varbaro, 597
F.Supp. 1173, 1181 (S.D.N.Y. 1984): see United
States v. Adcock, 558 F.2d 397, 406 (8th Cir.
1977)citing 8 J. Moore's Federal Practice P 15.01[3]
at 15-8 (1976)). Military practice provides for
somewhat more flexible use of depositions in
circumstances unique to the military, such as
8a
securing the sworn testimony of a witness prior to
trial who was improperly found to be unavailable at
an Article 32, UCMJ, investigation. United States v.
Chestnut, 2 M.J. 84 (C.M.A. 1976). Additionally, as
in this case, a deposition may be ordered to allow the
defense an opportunity to cross-examine an essential
witness who was not available at the Article 32,
UCM, investigation. United States v. Chuculate, 5
M.J. 143 (C.M.A. 1978). But, even under such
circumstances, litigants are on notice that a
deposition could be admitted at trial in the event the
witness is determined to be unavailable. R.C.M.
702(a), Discussion. Despite this, the appellant here
declined other available options, such as a telephone
interview of TO, and specifically requested an oral
deposition. On the basis of the clear state of the law
regarding depositions in criminal cases, we reject
any implication or assertion that the appellant was
somehow misled by the circumstances, or by the
order of the military judge, such that he did not
understand the deposition of TO could be admitted
at trial, if she were to become unavailable.
Analysis: “Effectiveness” of Cross-Examination
The Supreme Court has declined to assess the
effectiveness of questioning when an appellant has
been given an opportunity for cross-examination.
Qhio v. Roberts, 448 U.S. 56, 73 (1980), overruled by
Crawford, 541, U.S. at 36. The court held that “in all
but extraordinary cases, no inquiry into
‘effectiveness is required. A holding that every case
involving prior testimony requires such an inquiry
would frustrate the principal objective of generally
9a
validating the prior-testimony exception in the first
place -- increasing certainty and consistency in the
application of the Confrontation Clause.” /d. at
n.12.1 More to the point, “[t]he Confrontation
Clause guarantees .. . [t]he opportunity for effective
cross-examination, however [it] does not extend to
cross-examination that 1s effective in whatever way,
and to whatever extent, the defense might wish.”
United States v. Longstreath, 45 M.J. 366, 373-74
(C.A.A.F. 1996)(quoting De/aware v. Fensterer, 474
U.S. 15, 20 (1985)(emphasis in original). The
portions of the Roberts and Fensterer opinions,
withholding inquiry into the effectiveness of prior
cross-ecxamination, were not disturbed by the
subsequent holding in Crawford,° and we decline to
abandon them. To do otherwise would result in
there being no firm rule for courts and counsel to
rely upon when evaluating the admissibility of prior
testimony.
In this case, the appellant had access to TO's
prior written statement, as well as the benefit of
interviewing the other witnesses and participating
in an Article 32, UCMJ, investigation. The decision
‘The Supreme Court cited Mancus: v. Stubbs, 408 U.S. 204
(1972), as an example of an extraordinary case, [In that case,
the court considered the adequacy of counsel's cross-
examination ina prior hearing only after finding that the
appellant's counsel was otherwise ineffective. /d at 209
“Our cases have thus remained faithful to the Framers’
understanding: Testimonial statements ot witnesses absent
from trial have been admitted only where the declarant is
unavailable, and only where the defendant has had a prior
opportunity to cross-examine. Crawford, 541 U.S. at 59
10a
to decline a telephone interview of TO and request
an oral deposition was an informed, tactical choice.
During the deposition, the charges against the
appellant were the same as those for which he was
later tried, so the appellant had the same interest in
cross-examination during the deposition as he had at
trial. He was present with both of his defense
counsel, the trial counsel, and the putative victim.
The choice of questions posed during the deposition
cross-examination involved a series of tactical
decisions, made with notice that the deposition could
be introduced into evidence if TO were found to be
unavailable for trial.
We find that these circumstances presented
an adequate opportunity to effectively cross-examine
TO at the deposition and the appellant’s IMC availed
himself of that opportunity. In view of these facts.
we find the videotape of TO's testimony bore
sufficient "indicia of reliability" and afforded the
trier of fact a satisfactory basis for evaluating the
truth of the prior statement. United States v. Hines,
23 M.J. 125, 129-30 (C.M.A. 1986): United States v.
Vietor, 10 M.J. 69, 73 (C.M.A. 1980)(Everett, C.J.,
concurring in the result). We hold, therefore, that
the appellant was afforded a full and fair
opportunity for effective cross-examination of TO
and that admitting TO’s deposition into evidence at
trial did not violate the appellant's Sixth
Amendment Right to Confrontation.®
* The ruling in Cabrerra-Fratini 1/ determined that TO was
correctly found to have been unavailable to testify at trial
lla
Prosecutorial Misconduct
In his third and fourth assignments of error,
the appellant argues that the trial counsel
impermissibly commented on the appellant’s failure
to testify and later improperly asked the members to
put themselves in the victim’s position. The IMC,
however, did not object at trial te either of these
arguments. We, therefore, review for plain error.
R.C.M. 919(c): see United States v. Erikson, 65 M.dJ.
221, 223 (C.A.A.F. 2007)citing United States v.
Barrazamartinez, 58 M.J. 173, 175 (C.A.A.F. 2003)
and United States v. Gilley, 56 M.J. 113, 123
(C.A.A.F. 2001)). To prevail under a plain error
analysis, the appellant “must demonstrate that: ‘(1)
there was error; (2) it was plain or obvious: and (3)
the error materially prejudiced a substantial right.”
Id. (quoting United States v. Kho, 54 M.J. 63, 65
(C.A.A.F. 2000)Mciting United States v. Finster, 51
M.J. 185, 187 (C.A.A.F. 1999)). In applying this
“black letter” law, we are mindful that a
prosecutorial comment must be examined in light of
its context within the entire court-martial. United
States v. Carter, 61 M.J. 30, 33 (C.A.A.F. 2005).
Regarding trial counsel's argument on
findings, it is well- established that a trial counsel
may not comment upon the fact that an accused did
not testify in his own defense, either "directly,
indirectly, or by innuendol.]" United States. v.
Mobley, 31 M.J. 273, 279 (C.M.A. 1990)citing Griffin
v. California, 380 U.S. 609 (1965)). “Furthermore, he
is not permitted to comment on an accused's failure
12a
to produce witnesses in his behalf.” /d. (citing
United States v. Swoape, 21 M.J. 414 (C.M.A. 1986)).
“If such comments are made, the record must then
be examined for prejudice to determine whether the
errec was harmless.” Jd. (citing Chapman v.
California, 386 U.S. 18 (1967)).
Looking at the trial counsel’s argument in the
context of this case as a whole, it appears he was not
commenting on the silence of the accused, or on his
defense, but on the strength of the Government’s
case, each witness having testified in general
conformity with the others. Nevertheless, the
military judge perceived the potential for this
argument to be improperly interpreted. To prevent
any unintended inference, the trial judge sua sponte
interrupted the trial counsel. He then took the
unusual step of questioning the trial counsel in the
presence of the members. He secured the trial
counsel's assurance that his comments about the
Government's witnesses being “unrebutted” were not
comments on the accused’s right to remain silent.
The military judge then instructed the members that
the appellant was under no obligation to testify. He
thereafter included in his instructions on findings
that the appellant is presumed to be innocent, that
the burden of proof never shifts to him, and that he
has a right to remain silent. Apparently, the IMC
was satisfied with the military judge's actions and
saw no need for any additional corrective
instructions. We. too, are confident that the prompt
action of the military judge clarified the purpose of
the trial counsel's argument, reemphasized the
appellants right not to testify, and prevented any
I3a
prejudice. Based on these facts, we find no plain
error and, to the extent the trial counsel’s comments
were improper, they were harmless beyond a
reasonable doubt.
Moving to sentencing, "Golden Rule"
arguments ask the court members to place
themselves in the position of the victim or the
victim's near relative. They are improper because
they seek to inflame the members of the court.
United States v. Baer, 53 M.J. 235, 237-38 (C.A.A.F.
2000). In this case, trial counsel’s reference to the
members’ “kids” not being safe on base “with this
guy [the appellant] around” was improper. However,
this was but a single reference in a lengthy, six-page
argument on sentence. The reference appears to
have been the trial counsel’s attempt to address the
impact of the appellant’s misconduct on society and
the Marine Corps. In context, the improper
argument does not overtly appeal to the emotions of
the members in an inflammatory manner. Our
finding is confirmed by the fact that the IMC raised
no objection at trial. We conclude that, although
trial counsel’s argument was error, it was neithe'
obvious in the context of his broader argument, nor
did it materially prejudice the appellant's
substantial rights. Plain error is, therefore, not
demonstrated and the appellant is entitled to no
relief.
Finally. with respect to the assertion that the
trial counsel's arguments are prosecutorial
misconduct, we note that prosecutorial misconduct 1s
“action or inaction by a prosecutor in violation of
14a
some legal norm or standard, e.g., a constitutional
provision, a statute, a Manual rule, or an applicable
professional ethics canon." United States v.
Rodriguez-Rivera, 63 M.J. 372, 378 (C.A.A.F.
2006)(citations and internal quotation marks
omitted). We find that the instances of argument
cited by the appellant do not rise to the level of
prosecutorial misconduct, either individually or
cumulatively, and they merit no relief. See United
States v. Doctor, 21 C.M.R. 252, 261 (C.M.A.
1956)("It is a little difficult for us to find misconduct
which compels a reversal when it purportedly arises
out of an argument which had so little impact on
defense counsel that they sat silently by and failed to
mention it... at the time of trial.").
Challenge of Members
After the findings were announced, the court
recessed for a short period. During that recess, the
senior member, Lieutenant Colonel (LtCol) F, saw
Staff Sergeant (SSgt) R, a driJl instructor in his
battalion, and inquired why he was in the law
center. SSgt R replied that he was interested in the
sentencing of the case, but he did not elaborate.
During the subsequent vorr dire of LtCol F, he
acknowledged that he had heard SSgt R’s last name
during the trial testimony and, given his unique last
name, he thought that SSet R might be TQ’s
stepfather. LtCol F also said that, while he knew
SSet R’s last name, he did not know his first name
and did not know very much about him. He knew
that SSgt R was a drill instructor in his battalion,
but he did not have direct interaction with him
15a
because, as battalion commander, LtCol F worked
through company commanders and First Sergeants.
When the military judge asked whether the
knowledge that SSgt R was TO’s stepfather would
influence LtCol F’s deliberations in any way, LtCol F
said, “No.” Record at 441. Thereafter, the appellant
declined two opportunities to conduct his own voir
dire of LtCol F regarding his relationship with SSet
R. Record at 441-438. The appellant then challenged
LtCol F for cause under R.C.M. 912(f)(2)(B).7 The
military judge denied the challenge, finding that the
senior member’s voir dire responses were “clear,
reassuring and unequivocal with regard to his
impartiality.” Record at 443. He also found that
SSgt R was not a member of the LtCol’s family, but a
staff noncommissioned officer in the LtCol’s
battalion with whom he had no regular contact.
R.C.M. 912(f)(1)(N) requires removal for cause
when “the member should not sit in the interest of
having the court-martial free from substantial doubt
as to legality, fairness and impartiality.” United
States v. Strand, 59 M.J. 455, 458 (C.A.A.F.
2004)(quoting United States v. Miles, 58 M.J. 192,
194 (C.A.A.F. 2003)). This rule encompasses both
actual and implied bias. /d@. A military judge's
ruling on a challenge for cause is ordinarily reviewed
for abuse of discretion. United States v. Armstrong,
54 M.J. 51, 53 (C.A.A.F. 2000)(citations omitted).
The military judge is entitled to great deference
when deciding whether actual bias exists, because it
is a question of fact. l/aited States v. Napolitano, 53
” Following the pretrial voir dire of LtCol F. the appellant had
not challenged him tor any reason. Record at 271-72
l6a
M.J. 162, 166 (C.A.A.F. 2000). He is given less
deference when we review his "finding on implied
bias because it is objectively 'viewed through the
eyes of the public." Jd. (quoting United States v.
Warden, 51 M.J. 78, 81 (C.A.A.F. 1999)). The proper
standard of review for implied bias is “less
deferential than abuse of discretion but more
deferential than de novo.” Strand, 59 M.J. at 458
(citations and internal quotation marks omitted).
“{I]mplied bias exists when, regardless of an
individual member's disclaimer of bias, most people
in the same position would be prejudiced [i.e.
biased]." Jd. at 459 (citations and internal quotation
marks omitted); accord, United States v. Townsend.
__MJ.___, No. 07-0229 (C.A.A.F. Feb 5, 2008). In
making a determination about implied bias, we
consider the totality of the factual circumstances.
Id.
Applying the above standards, we find no
abuse of discretion by the military judge in finding
no actual bias. He considered the professional
nature and the limited contacts of the relationship
between LtCol F and SSegt R, and found the senior
member’s responses to be “clear, reassuring and
unequivocal” regarding his actual ability to remain
impartial. The facts of record support the military
judge’s decision, particularly considering that we did
not see and hear LtCol F.
We also agree with the military judge that
there is no implied bias in the relationship of LtCol F
and SSgt R. The facts show the two had no personal
relationship. Indeed, LtCol F did not know the
SSet's first name and, prior to seeing him at the law
17a
center, LtCol F did not know that SSgt R was TO’s
step-father. The relationship of LtCol F and SSgt R
was limited to that of senior-subordinate, with
indirect interaction via intermediates in a military
chain of command. We do not believe that most
people in the position of LtCol F, a field grade officer
in command of a battalion, would be biased in favor
of one among several staff sergeants in his
command, such that he could not set aside this
limited professional! relationship and fulfill his oath
as an impartial court-martial member.®
Additionally, we do not believe that a member of the
public, in possession of all the facts, would view the
situation as unfair. See Strand, 59 M.J. at 460
(service by convening authority’s son as president of
court-martial did not raise a significant question of
legality, fairness, or impartiality, to the public
observer pursuant to the doctrine of implied bias).
Absent actual or implied bias, this issue is without
merit.
Cruel and Unusual Punishment
Prior to invoking judicial intervention for
alleged violations of Article 55, UCMJ, or the Eighth
Amendment, "a prisoner must seck administrative
rehef.” United States v. White, 54 M.J. 469, 472
* The R.C.M. 807 oath provides that a member wll “faithfully
and impartially try, according to the evidence, your conscience,
and the laws applicable to trial by court-martial, the case of the
accused now before this court.” R.C.M. 807(b)(2), Discussion.
18a
(C.A.A.F. 2001). Absent some unusual or egregious
circumstance, this includes demonstrating that he
has exhausted the prisoner-grievance system,
including a petition for relief under Article 138,
UCMJ. Id.
The record indicates that the appellant made
several complaints to brig authorities regarding his
confinement and the behavior of brig personnel.
These include Article 1150, UCMJ, complaints to the
Commanding Officer of Naval Consolidated Brig,
Charleston, and a Request Mast to the Commanding
General of Marine Corps Recruit Depot, Parris
Island. The appellant’s complaints were reviewed
and addressed by brig officials and the Commanding
General. Thereafter, the appellant did not make an
Article 138, UCMJ, complaint for additional relief.
We conclude that, if action taken by the various
officials was not adequate, the requisite
administrative exhaustion of remedies required to
invoke our review has not occurred. Additionally, we
are unable to find any “unusual or egregious’
circumstance that would prompt our review despite
a failure to exhaust administrative remedies. Asa
result, we find the issue is not ripe and we decline to
review it.
Cumulative Error
Having found the other assertions of error to be
without merit. they are insufficient to invoke the
doctrine of cumulative error. United States v. Gray,
51 M..J. 1, 61 (C.A.A.F: 1999).
19a
Unreasonable Multiplication of Charges
Finally, we considered the appellant’s assertion
that the charges of which he was found guilty
constitute an unreasonable multiplication of charges.
This claim is without merit. United States v.
Quiroz, 55 M.J. 334 (C.A.A.F. 2001). We will not
discuss it further. United States v. Matias, 25 M.J.
356, 361 (C.M.A. 1987).
Conclusion
The findings of guilty and the sentence, as
approved by the convening authority, are affirmed.
Senior Judge FELTHAM and Judge
MITCHELL concur.
For the Court
R.H. TROIDL
Clerk of Court
Appendix C
UNITED STATES, Appellant v. Jose R. CABRERA-
FRATTINI, Lance Corporal U.S. Marine Corps,
Appellee
20a
No. 07-5001
UNITED STATES COURT OF APPEALS FOR THE
ARMED FORCES
65 MJ. 241, 2007 CAAF LEXIS 819
February 5, 2007, Argued
June 22, 2007, Decided
RYAN, J., delivered the opinion of the Court, in
which EFFRON, C.J., and BAKER, ERDMANN, and
STUCKY, JJ., joined.
For Appellant: Major Brian K. Keller, USMC
(argued); Commander P. C. LeBlanc, JAGC, USN,
and Colonel R. F. Miller, USMC (on brief).
For Appellee: Captain S. Babu Kaza, USMC
(argued).
Military Judges: A. W. Keller and T. A. Daley
(arraignment).
Judge RYAN delivered the opinion of the Court.
In Crawford v. Washington, the Supreme Court held
that "[tlestimonial statements of witnesses absent
from trial" are admissible "only where the declarant
is unavailable, and only where the defendant has
had a prior opportunity to cross-examine Ithe
witness]." 547 U.S. 86. 59, 124S. Ct. 1854, 158 L. Ed.
2d 177 (2004). We are asked in this case to determine
whether the military judge abused his discretion by
finding a thirteen-year-old witness suffering from
2la
bipolar disorder and post-traumatic stress syndrome
unavailable for Confrontation Clause purposes based
on the witness's medical records and the testimony of
a board-certified child psychiatrist that testifying
would be detrimental to the witness's mental and
physical health, including possible suicide at both
the time of trial and the foreseeable future. We hold
that the military judge did not abuse his discretion
by ruling that the witness was unavailable.
A general court-martial, composed of officer and
enlisted members, convicted Appellee, contrary to
his pleas, of carnal knowledge and committing an
indecent act with a minor in violation of Articles 120
and 134, Uniform Code of Military Justice (UCM),
10 U.S.C. §§ 920, 934 (2000). The sentence adjudged
by the court-martial and approved by the convening
authority included forfeiture of all pay and
allowances, reduction to the lowest enlisted grade,
confinement for three years, and a dishonorable
discharge. ‘The United States Navy-Marine Corps
Court of Criminal Appeals set aside the findings and
sentence, holding that the military judge erred by
determining that the witness was unavailable and
admitting her videotaped deposition, in violation of
Appellee's Sixth Amendment right to confrontation.
United States v. Cabrera-Frattini, No. NUCCA
200201665, 2006 CCA LEXIS 218, at *1 (N-M. Ct.
Crim. App. Aug. 2, 2006Xunpublished). Chief Judge
Rolph, in dissent, concluded that the military judge
had not erred. /d. 2006 CCA LEXIS 218 at *32-*68.
Pursuant to Article 67(a)(2), UCMJ, JOU S.C. §
SO67al(2) (2000), the Judge Advocate General of the
Navy certified to this Court this issue:
22a
WHETHER THE NAVY-MARINE CORPS COURT
OF CRIMINAL APPEALS ERRONEOUSLY HELD
THAT THE MILITARY JUDGE ABUSED HIS
DISCRETION BY FINDING THE 13-YEAR-OLD
WITNESS UNAVAILABLE ON THE BASIS OF
MENTAL ILLNESS OR INFIRMITY, AND THUS
THAT THE MILITARY JUDGE HAD
ERRONEOUSLY ADMITTED THE WITNESS'S
VIDEOTAPED DEPOSITION.
A. Background
1. TO's deposition
The charges referred against Appellee arise from
sexual intercourse he had with TO while another
Marine anally sodomized her. TO, then a twelve-
year-old girl, is unrelated to Appellee.
In October 2001, the military judge ordered the
deposition of TO so that Appellee would not be
denied the opportunity to cross-examine a key
Government witness under oath prior to trial.!
' TO had moved to another state, and was unavailable to
Appellee's Article 32, UCMJ. 70 U.S.C. § 832 (2000).
investayation. Appellee sought to depose TO so that he could
cross-examine her to "ask her those hard questions and get
them on the record." The military judge ordered the deposition,
but denied Appellee's motion for a new Article 32. UCMd,
investigation. He tound the existing investigation in
substantial compliance |**4) with Rule for Courts Martial
(R.C.M.) 405(a). The military judge instead ordered the Article
32. UCM, investigation reopened for the sole purpose of
considering TO's deposition. After considering TO's deposition,
the investigating officer again recommended a general court
martial
23a
TO was deposed on November 138, 2001. The
deposition was videotaped in accordance with
R.C.M. 702(g)(3). TO gave her testimony under oath
and in Appellee's presence. Appellec's military
counsel conducted a full cross-examination of TO
without limitation.? This post-referral deposition
was taken in full contemplation of the charged
offenses referred to general court-martial.
2. Prosecution subpoenas and attempts to obtain
TO for trial
Trial was scheduled to begin on December 10, 2001.
Trial counsel subpoenaed TO and her mother to
appear, issued travel orders, and made
arrangements for them to fly from St. Louis,
Missouri, to Parris Island, South Carolina.
3. TO's hospitalization
Shortly after her deposition, TO attempted suicide.
On December 4, 2001, she was admitted toa
psychiatric hospital in St. Louis, Missouri, because
she was a severe danger to herself. Upon admission,
TO was preoccupied with suicidal thoughts.
Dr. Linda Bock, a psychiatrist who specializes in
child and adolescent psychiatry, initiated in-patient
psychiatric treatment of TO's "significant psychiatric
problems."
“ The Navy Marine Corps Court of Criminal Appeals noted:
"There is no dispute that the deposition was properly ordered
and conducted, and that applellant had ample and full
opportunity to cross-examine TO, with a view toward the
depositions possible later use at trial.” Cabrera-Frattini, 2006
CCA LEXIS 218, at *13. This portion of the decision was not
appealed.
24a
4. TO's absence from trial
On December 7, trial counsel received a faxed letter
from TO's treating physician, Dr. Bock, which
informed trial counsel that TO was hospitalized for
in-patient psychiatric evaluation and treatment in
St. Louis, Missouri, because TO was a "severe
danger to herself." The letter stated TO was having
"significant psychiatric problems" and was being
treated with medications, but having "medication
adjustment reactions.” It further stated she could
not attend court before the end of December 2001
and that her date of discharge from the hospital was
unknown.
5. The military judge's inquiry
On December 10, 2001, Appellee's counsel filed a
motion in limine to exclude TO's videotaped
deposition testimony. Several hearings on the
motion were held at which the Government offered
documentary evidence to explain TO's
hospitalization and ongoing medical condition as the
reason for her unavailability for trial.
The military judge required more. Consequently,
pursuant to the military judge's order, the trial
counsel produced Dr. Bock for an Article 39(a),
UCMJ, 10U.S.C. § 8389(a) (2000), session on January
22, 2002. Dr. Bock appeared before the military
judge to address TO's medical and psychiatric
condition. Without objection, Dr. Bock established
her credentials and expertise as a board-certified
child psychiatrist and practicing psychiatric analyst
with more than twenty vears of experience.!
‘Dr. Bock's curriculum vitae reflected an internship
25a
In addition to her curriculum vitae, Dr. Bock
presented eighty-eight pages of TO's medical and
psychiatric treatment records. In her sworn
testimony, Dr. Bock reiterated the diagnosis she had
previously documented in TO's medical records. She
described bipolar disorder as a mood disorder that
caused TO to suffer disturbed, erratic behavior. She
explained that TO suffered from bipolar II disorder,
rapid cycling and post-traumatic stress disorder, as
defined by criteria set forth in the Diagnostic and
Statistical Manual of Mental Disorders (DSM-IV)
(4th ed. 1994).
Dr. Beck testified that TO's mental condition
deteriorated significantly after TO gave her
deposition. As evidence, Dr. Bock cited TO's suicide
attempt. Its gravity was magnified by the fact that it
was her second attempt. In her sessions with Dr.
Bock, TO focused on the issue of testifying at the
trial as one of the reasons that she could not go on
living, believing it would be better to be dead than to
testify. TO's condition required Dr. Bock to
administer antipsychotic and mood:stabilizer
medications to treat her disorders. Dr. Bock and
other practitioners treated TO in the hospital for
almost a week. Dr. Bock discharged TO on December
in pediatrics, a residency in psychiatry, and a
fellowship in child and adolescent psvchiatry. She
served in numerous consulting and teaching
positions relating to her profession, published
extensively in her field, and was a member and/or
director of multiple professional organizations
related to the treatment of psychiatric disorders.
10, 2001.
Dr. Bock described TO's prognosis upon release from
hospitalization as "guarded," noting that TO had "a
serious chronic psychiatric disorder." She did not
expect TO's mood to begin to show signs of
stabilizing for at least six to twelve months due to
her illness, as that was the time needed for the
antipsychotic and mood-stabilizing drugs to have an
appreciable effect. Dr. Bock expected a difficult
recovery period with a possibility of re-
hospitalization. Dr. Bock concluded that it would be
detrimental for TO to testify as a witness based
upon TO's demonstrated psychological abnormalities
before and during hospitalization.
On cross-examination, Dr. Bock reiterated her
medical conclusion that TO could not testify because
it would aggravate TO's bipolar disorder. She
testified that TO was ™ the verge of psychotic
mania during her hospitalization. She stated that
she had prescribed medications to get T'O's stress
levels down and that, while testifying out of the
sight of the members might be less stressful, it still
would detrimentally increase brain stimulation.
In response to the military judge's questions, Dr.
Bock testified that TO's mental illness was ongoing
and its treatment would be long-term and
protracted. She [**9] told the military judge that
testifying would be a major, over-stimulating event
for TO, which could predictably result in a repeat
suicide attempt or a repeat psychiatric
hospitalization.
Dr. Bock further testified on both direct and cross-
examination that TO would not be able to talk about
27a
what happened to her until TO, who was then
thirteen, was eighteen to twenty-five, and perhaps
not even then.
At the time of this hearing, a month and a half had
passed since Dr. Bock had seen TO. Dr. Bock
addressed the current accuracy of her prognosis,
stating there was no other data that would be
pertinent to change her view.
6. The military judge's findings of fact
Based upon Dr. Bock's testimony and tie medical
record evidence, the military judge found that TO
had two significant psychiatric illnesses: bipolar IT
disorder and post-traumatic stress disorder. He
found that she was being treated with Seroquel, a
brain protectant and antipsychotic, and Tegretol, a
mood stabilizer. As a result, he found that it "would
be detrimental to [TO]'s mental and physical health
now and in the foreseeable future to testify at the
court-martial or any hearing regarding the charges
before the court... ." He [**10] concluded that "any
court appearance would re-traumatize [TO] and
would worsen her mental and physical health to
include her possible suicide."
Moreover, he found that TO "had first-hand
knowledge of the material facts in her deposition|,] .
_ appreciated the moral duty to tell the truth[,] . . .
was reluctant to testify against the accusedl,] ...
[and] lacked a motive to fabricate having consensual
sexual intercourse with the accused."
7. The military judge's conclusion of law
The military judge concluded “O was unavailable
and admitted TO's videotaped «snosition. The
28a
military judge ruled that the prosecution had
established the requirement of unavailability for
purposes of both the Sixth Amendment and Military
Rule of Evidence (M.R.E.) 804.4 He concluded the
government had made a reasonable and good-faith
effort to obtain TO's presence.
Appellee's counsel did not introduce contraaictory
expert testimony, ask to perform his own psychiatric
assessment of TO, or request a continuance.
Based on TO's videotaped deposition and the other
evidence presented at trial, Appellee was convicted.
B. Discussion
The Confrontation Clause of the Sixth Amendment
provides that "[iJn all criminal prosecutions, the
accused shall enjoy the right .. . to be confronted
with the witnesses against him." U.S. Const. amend
V7. The Supreme Court recently decided that, before
"testimonial" statements may be admitted, the
Confrontation Clause requires that the accused have
been afforded a prior opportunity to cross-examine
the witness, and that the witness be unavailable.
Crawford, 541 U.S. at 53-54.
The military judge decided this case prior to the
Supreme Court's decision in Crawford. At that time,
the admissibility of out-of-court statements under
the Confrontation Clause was controlled by O&dzo v.
' As we respond onlv to the certified issue relating to
unavailability, we will not address the other findings
of the military judge related to the admissibility of
the deposition.
29a
Roberts, 448 U.S. 56. 100 S. Ct. 2581, 65 L. kd. 2d
597 (1980). Crawford applies to criminal cases, such
as this one, that are still pending on direct review.
See Griffith v. Kentucky, 479 U.S 314, 328, 107 S.
Ct. 708, 93 L. Ed. 2d 649 (1987) (holding “a new rule
for the conduct of criminal prosecutions is to be
applied retroactively to all cases ... pending on
review"); see also Whorton v. Bockting, 127 S. Ct.
11738, 1181, 167 L. Ed. 2d 1 (2007) (declaring
Crawford to be a new rule of law). Crawford did not
purport to change the test of witness
"unavailability." Crawford, 541 U.S. at 53-54.
1. Legal framework
It has been the rule in this Court for more than
twenty years that a military judge's determination of
a witness's unavailability (and the antecedent
question of the government's good-faith efforts) is
reviewed for abuse of discretion. United States v.
Cokeley, 22 M.J. 225, 229 (C.M.A. 1986). "Findings
of fact are affirmed unless they are clearly
erroneous; conclusions of law are reviewed de novo."
United States v. Rader, 65 M.J. 30, 82 (C.A.A.F.
2007). So long as the military judge understood and
applied the correct law, and the factual findings are
not clearly erroneous, neither the military judge's
decision to admit evidence, nor his unavailability
ruling, should be overturned. United States v.
McDonald, 59 M.Jd. 426. 480 (C_A.A.F. 2604)
(citations omitted).
In order for a witness to be "unavailable" for S7xth
Amendment purposes, the government must first
make a "good faith" effort to secure the witness's
presence at trial. Barber v. Page, 390 U.S. 719. 724-
30a
25, 88S. Ct. 1818, 20 L. Ed. 2d 255 (1968). In
Roberts, the Supreme Court held that the lengths to
which the prosecution must go to produce a witness
is determined undcr a reasonableness standard. 448
U.S. at 74."\|E]valuation of reasonableness or good-
faith effort 'requires us to consider all the
circumstances rather than to apply a per se rule."
Cook v. McKune, 823 F.3d 825, 835 (10th Cir. 2003)
(quoting Martinez v. Sullivan, 881 F.2d 921, 924 n.1
(0th Cir. 1989)). See also Cokeley, 22 M.J. at 229
(recognizing that "there is no bright-line rule which
will fit every situation," and that the "judge must
carefully weigh all facts and circumstances of the
case, keeping in mind the preference for live
testimony."). The test for unavailability focuses on
"whether the witness is not present in court in spite
of good-faith efforts by the Government to locate and
present the witness." Cokeley, 22 M.J. at 228.
Courts are not without guidance in undertaking this
fact- and circumstance-driven inquiry. This Court
has addressed some factors that should be
considered to determine unavailability, including
"the importance of the testimony, the amount of
delay necessary to obtain the in-court testimony, the
trustworthiness of the alternative to live testimony,
the nature and extent of earlier cross-examination,
the prompt administration of justice, and any
special circumstances militating for or against
delay." Jd. Where the absence of the witness results
from illness, a court should also consider the nature
of the illness and the probable duration of the
illness. See United States v. Faison. 679 F.2d 292.
297 (3d Cir. 1982)
2. Analysis
3la
"When reviewing a decision of a Court of Criminal
Appeals on a military judge's ruling, 'we typically
have pierced through that intermediate level' and
examined the military judge's ruling, then decided
whether the Court of Criminal Appeals was right or
wrong in its examination of the military judge's
ruling." United States v. Shelton, 64 M.J. 32, 37
(C.A.A.F. 2006) (quoting United States v. Siroky, 44
MJ. 394, 399 (C_A.A.F. 1996)). The sole issue before
us 1s whether the lower court erred in reversing the
military judge's ruling that TO was unavailable for
purposes of the Sixth Amendment. We conclude that
it did.
The military judge's ruling on the motion in limine
identifies the appropriate framework for legal
analysis for an unavailability determination and
addresses the relevant Cokeley and Faison factors,
in the context of undisputed factual findings. Those
factual findings are not clearly erroneous, and we
accept them as the factual predicate for our decision.
The military judge's good faith/unavailability
findings included the following: (a)the government
subpoenaed TO and her mother, issued their travel
orders and made arrangements to fly them to Parris
Island; (b) TO's hospitalization prevented her from
complying with the subpoena; (c) TO had two
significant psychiatric illnesses -- bipolar II disorder
and post-traumatic stress disorder; (d) TO was
taking Seroquel, a brain protectant and
5 Cokeley, of course, was decided in the context of a
military judge's denial of a defense request for a
continuance. There was no such request 1n this case.
32a
antipsychotic drug, and Tegretol, a mood stabilizer;
(e) it "would be detrimental to TO's mental and
physical health now and tn the foreseeable future to
testify at this court-martial or any hearing regarding
the charges that were before the court"; and (f)
"[alny court appearance would re-traumatize [TO]
and would worsen her mental and physical health to
include her possible suicide" (emphasis added).
In this case, the military judge did not abuse his
discretion by concluding that the Government
exercised good faith efforts under the c!rcumstances
to produce TO at trial and that she was, nonetheless,
unavailable. As both the majority and dissent below
recognize, "[t]here is ample precedent for finding a
witness, even a critical one, unavailable where the
act of testifying in court is determined to be
detrimental to the witness's physical or mental well-
being." Cabrera-Frattini, 2006 CCA LEXIS 218, at
*13-*14 (citing United State v. Keithan, 751 F.2d 9,
12-13 (st Cir. 1984) (finding unavailability in case
of an elderly witness whose infirmity prevented
travel); Howard v. Sigler, 454 F.2d 115, 120-21 (8th
Cir. 1972) (upholding unavailability determination
where tuberculosis prevented travel, even though
witness might recover some day)); accord Cabrera-
Frattini, 2006 CCA LEXIS 218, at *53 (Rolph, C.J.,
dissenting) (citing United States v. Donaldson, 978
F.2d 881, 393 (7th Cir. 1992) (affirming
unavailability determination of pregnant female -
admitted to hospital on the eve of trial)); see a/so
Ecker v. Scott, 69 F.3d 69, 70-73 (5th Cir. 1995)
(finding unavailability where there was a fifty-
percent chance the witness would still be
unavailable after three to four weeks); Con/ey v.
33a
McKune, 2004 U.S. Dist LEXIS 26315, at *18-*19
(D. Kan. 2000) (finding unavailability as a result of a
witness's medical condition and not as a result of the
prosecution's lack of reasonable diligence); Warren v.
United States, 436 A.2d 821, 827-28 (D.C. 1981)
(affirming a finding of unavailability where there
was a high likelihood of temporary or permanent
psychological injury). And this Court's precedent
reaffirms that "luJnavailability is clear when the
witness is not expected to improve." Cokeley, 22 M.2J/.
at 229.
Expert testimony supported the military judge's
finding that TO suffered from severe psychiatric
illness that would make testifying at trial or any
hearing "now and in the foreseeable future"
detrimental to TO's mental and physical health.
Under the facts of this case, "detrimental" included
the possible suicide of TO.
The military judge's analysis and rulings reflect that
he understood that Confrontation Clause
considerations are most consequential "when the
testimony of a witness is critical to the prosecution's
6 We note that a continuance was not requested and.
in any event, "Is not necessary 1n every case where a
witness is ill but may recover someday." Cokeley, 22
M.J. at 229. Given the testimony about the
protracted nature of 'TO's psychiatric illness, the
benefit of a continuance is speculative, at best. See
also United States v. Crockett, 21 M.d. 428, 427-28
(C_.M.A. 1986) (affirming finding of unavailability
where videotaped deposed witnesses were in Florida
and unwilling to travel to Germany for trial.)
34a
case against the defendant." United States v. Quinn,
901 F.2d 522, 529 (6th Cir. 1990) (quoting United
States v. Lynch, 163 U.S. App. D.C. 6, 499 F.2d
1011, 1022 (D.C. Cir. 1974)). Contrary to Appellee's
assertion, the actions of the military judge in this
case are dissimilar from those at issue in Cokeley, 22
M.J. at 229 (finding military judge abused his
discretion based on misapprehension of the
applicable law and a failure to articulate the
relevant factors on the record) and Burns v. Clusen,
798 F.2d 931, 942 (7th Cir. 1986) (concluding that
the factual findings were not supported by the
record). In this case, the military judge not only
entered detailed findings of fact and conclusions of
law, he also required the prosecution to carry its
burden of demonstrating "unavailability" before the
witness's out-of-court statement was admitted.’ See
Roberts, 448 U.S. at 74-75, Cokeley, 22 M.d. at 229.
The lower court held that the military judge erred by
finding TO unavailable based solely on the evidence
presented by the Government. The question that
divided the lower court was whether the trial judge
7 We note that the military judge required, over the
Government's objection, that Government counse!
call Dr. Bock to testify in order to demonstrate
unavailability. But for the military judge's insistence
on this additional evidence, it is questionable that
the Government would have met its burden of proof
regarding the unavailability of a key Government
witness by assuming it needed to put forward only
the faxed letters initially offered.
35a
took sufficient steps to determine that TO was
unavailable for trial. The majority concluded that
the military judge should have required more, such
as an updated prognosis, an independent medical
opinion from a court-appointed expert, a recent
letter from TO or her mother, or explicit exploration
of the alternative of remote testimony. There could
be a case where the alternative steps proposed by
the lower court might be warranted. But in this case,
Dr. Bock established both that TO was suffering
from a serious mental illness that would likely
demand years of medication and therapy to control,
and that the risk of suicide was ongoing and would
be exacerbated by testifying in any forum in the
foreseeable future.
While Dr. Bock's testimony was presented to the
trial judge forty-four days after her examination, Dr.
Bock addressed the current accuracy of her
prognosis, stating there was no other data that
would be pertinent to change her view. We agree
with Chief Judge Rolph that Dr. Bock's diagnosis
was not stale. Cabrera-Frattini, 2006 CCA LEXIS
218, at *57-*59 (Rolph, C.J., dissenting).
The military judge found that it would cause TO
harm "now and in the foreseeable future" to testify
"at this court martial or any hearing regarding the
charges before the court." In light of this finding,
exploring the option of remote live testimony was
not indicated.
The lower court did not hold that the military
judge's findings of tact were clearly erroneous or
unsupported by the record. And it did “not quibble
with the qualifications of Dr. Bock's or her diagnosis
36a
that TO was suffering from a serious mental illness
in December 2001 that would likely demand years of
medication and therapy to control." Cabrera-
Frattini, 2006 CCA LEXIS 218, at *22. Rather, it
noted that Dr. Bock's opinion was “based on
considerable medical acumen and reliable statistics .
..." Id. 2006 CCA LEXIS 218 at *223.
Appellee has not identified precedent requiring a
second medical opinion upon a trial court finding
that a mental or physical illness could be
exacerbated, with potentially life-threatening
consequences, by a court appearance. Nor are we
aware of a rule requiring courts to investigate
independently the established medical condition of
an unavailable witness, absent defendant's request
for an examination. See Alcala v. Woodford, 334 F.3d
862, 880-81 (9th Cir. 2003) (holding courts have no
duty to investigate, sua sponte, the medical
condition of an alleged unavailable witness):
Warren, 436 A.2d at 830 (finding no responsibility
on the part of court to request, sua sponte, an
updated report of psychological health, relying
instead on "a reasonable presumption of continuing
mental condition").
We decline to hold that while non-amenability and
refusal of a witness to voluntarily appear can
establish constitutional unavailability, a life-
threatening illness can not. See Mancusi v. Stubbs,
408 U.S. 204, 212, 92S. Ct. 2308, 33 1. Ed. 2d 29,3
(1972) (holding witness unavailable because state
was powerless to compel witness's attendance at
trial: Crockett, 21 MJ. at 427-28 (reasoning that
witnesses in Florida were unavailable because they
could not be compelled against their will to testify in
37a
Germany).
Under the particular facts of this case, we hold that
the military judge did not abuse his discretion by
concluding that the Government made good faith
efforts to procure the witness's presence for trial,
concluding that TO was unavailable, and admitting
TO's videotaped deposition testimony.®
3. Decision
We answer the certificd question in the
affirmative. The decision of the United States Navy-
Marine Corps Court of Criminal Appeals is set aside.
The record of trial is returned to the Judge Advocate
General of the Navy for remand to that court for
further review in accordance with Article 66, UCM,
10 U.S.C. § 866 (2000).
Appendix C
* Concluding that TO was unavailable under the
Confrontation Clause, we also are satistied that the
military judge did not abusc his discretion in finding
TO unavailable under M.R.E. 804(a)(4)
38a
IN THE U.S. NAVY-
MARINE CORPS COURT OF CRIMINAL APPEALS
WASHINGTON NAVY YARD
WASHINGTON, D.C.
BEFORE
J.W. ROLPH D.A. WAGNER E.B. STONE
UNITED STATES
Vv.
Jose R. CABRERA-FRATTINI
Lance Corporal (E-3), U. S. Marine Corps
NMCCA 200201665 Decided 2 August 2006
Sentence adjudged 25 January 2002. Military
Judge: A.W. Keller. Review pursuant to Article
66(c), UCM, of General Court-Martial convened by
Commanding General, Marine Corps Recruit Depot,
Parris Island, SC.
LT J.L. GOLDSMITH, JAGC, USNR, Appellate
Defense Counsel
Capt BRLAN KELLER, USMC, Appellate
Government Counsel
AS AN UNPUBLISHED DECISION, THIS
OPINION DOES NOT SERVE AS PRECEDENT.
39a
WAGNER, Senior Judge:
The appellant was convicted, contrary to his
pleas, by officer and enlisted members sitting as a
general court-martial, of carnal knowledge and
committing an indecent act with a minor, in
violation of Articles 120 and 134, Uniform Code of
Military Justice, 10 U.S.C. §§ 920 and 3934. The
members sentenced the appellant to a dishonorable
discharge, forfeiture of all pay and allowances,
reduction to pay grade E-1, and confinement for
three years. The convening authority approved the
sentence as adjudged.
We have examined the record of trial, the
appellant's seven assignments of error, the
Government's answer, and the additional matters
attached by the Government. We agree with the
appellant’s second assignment of error that the
military judge erred in finding a key Government
witness unavailable based on the facts presented by
the Government and subsequently admitting the
videotaped deposition of that witness in violation of
the Confrontation Clause of the Sixth Amendment.
Because of our resolution of this assignment of error
in the appellant's favor. we need not address the
remaining six assignments of error.
Background of the Case
The charges against the appellant arose from
40a
his alleged sexual involvement with a minor, TO.
TO did not testify at the Article 32, UCMJ, hear’ ag.
Following referral of charges, the defense requested
that the convening authority order an oral deposition
of TO in order to preserve her testimony at trial and
because the defense had been unsuccessful in its
attempts to interview her. The convening authority
denied the request. In the initial stages of the trial,
the defense raised a motion for a new Article 32,
UCM4gJ., investigation and complained to the military
judge that the defense team had been denied access
to TO in preparing for trial, citing the denial of their
request to orally depose her. The military judge
found the Article 32, UCMJ, investigation to be in
substantial compliance with RULE FOR COURTS-
MARTIAL 405, MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2000 ed.), but ordered an oral deposition of
TO so that the defense would have the opportunity
to cross cxamine the kcy Government witness prior
to trial. The military judge also ordered the Article
32, UCMJ, investigation reopened for the limited
purpose of considering the transcript of that
deposition.
On 13 November 2001, a videotaped
deposition of TO was conducted. During her
description of the allegations during the deposition,
TO testified that she was drinking and had problems
remembering the events, but did recall telling the
appellant her age, twelve vears old, and recalled
thereafter engaging in sexual intercourse with him,
at times in the presence of others. TO was cross
examined by the trial defense counsel.
4la
The appellant's trial was scheduled to begin
on 10 December 2001. TO and her mother had been
issued subpoenas and travel arrangements had been
made. On 7 December, the Government was notified
that TO had been hospitalized on 4 December and
would not be available for trial before the end of the
month. The Government thereafter raised a motion
in Irmine to allow the introduction of the videotaped
deposition of TO into evidence in heu of producing
her to testify at trial. The defense opposed the
motion, citing the appellant's Sixth Amendment
right to confrontation. The Government argued that
TO was unavailable to testify due to menta! illness
or infirmity under MILITARY RULE OF EVIDENCE
804(a), MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2002 ed.), and that the deposition should be
admitted as former testimony under MIL. R. EVID.
804(b)(1) or, alternatively, under the residual
hearsay exception, MIL. R. EVID. 807.
The evidence supporting the Government's
position regarding unavailability consisted of the
testimony of Dr. B, a civilian psychiatrist who
described herself as the "tending physician" for TO
during her hospitalization, and the hospital records
from that period of hospitalization. Record at 174.
At an Article 39(a), UCMJ, session held on 22
January 2002, Dr. B testified that she had first met
TO on 5 December 2001, the day after TO had been
admitted to the hospital. Dr. B testified that TO was
admitted based on the recommendation of TO's
outpatient therapist, who sensed a deterioration in
her mental condition during sessions. Dr. B
diagnosed TO as having bipolar-2 disorder (rapid
42a
cycling), as well as post-traumatic stress disorder.
Dr. B testified that both mental disorders were Axis
| issues, classified as mental illnesses that can be
effectively treated. Dr. B started TO on medication
to treat her disorders.
Dr. B testified that persons with bipolar
disorder have difficulty managing their moods and
that "life stressors" make that even more difficult. !
Record at 177. According to Dr. B's testimony, ‘l'O
told her that she had she cut her hand trying to
commit suicide in August 2001, but did not tell
anyone. Dr B testified that her staff had taken a
clinical history from TO's family that revealed a
suicide gesture where TO put a plastic bag over her
head, increased difficulty sleeping and
concentrating, dropping school grades, fighting on
the school bus, irritable behavior and racing moods
and thoughts. Dr. B also testified that the
antidepressants previously prescribed for TO were
not the correct treatment for her disorder and may
have exacerbated her symptoms.
When asked whether the issue of TO
testifying was discussed, Dr. B replied that it had
been, and stated that: "[T'O] focused on that as
though that was part of why she couldn't go on
living. It would be better to be dead. I don't want to
vo back to court. I'm so tired of all of this.” Record
at 179. Dr. Btestified that it appeared as though TO
' Dr. Btestified that it was the bipolar disorder alone that
impacted on TO's ability to appear in court without harm to
herself and that the post-traumatic stress disorder played no
role in that determination.
43a
felt that she did not want to be bothered with the
trial and depositions and that, if she had "to go back
there, I don't have a life." Jd Dr. B finished her
direct testimony by stating that, in her opinion, it
would be detrimental to TO for her to testify in
court.
During cross-examination, Dr. B admitted
that she had never seen TO before 5 December 2001
and that her review of TO's history had come from
the hospital's assessment staff. Dr. B also stated
that she had not reviewed TO's prior medical records
or talked to her prior physicians. She further
testified that TO was coherent, of average
intelligence, and not suffering hallucinations.
Additionally, Dr. B indicated that she had spent 30
minutes with TO on 5 December 2001 and about 15
minutes reviewing assessment records. Dr B.
testified that she would have seen TO "for about 15-
30 minutes" each weekday thereafter (6, 7, and 10
December were weekdays) and that a "substitute
doctor" would have seen TO on the weekends.
Record at 183. Dr. B also testified that she held staff
meeting three times a week to share information
with social workers, nurses, and therapists
regarding the patients.
Dr. Btestified that tne hospital assessment
staff had recorded in the hospital records TO's
description of her involvement with the appellant as
having been "gang-raped" by "four to six Marine
officers." Record at 186. Dr. B also testified that the
records indicated that TO had told her staff that she
had, on more than one oceasion, consumed alcohol
444
and engaged in consensual sexual encounters with a
number of Marines. Dr. B also stated that she had
never spoken with TO's mother, although her
assessment staff had. Dr. B testified that TO was
subject to other life stressors resulting from her
family life, stating that TO had "a lot of them."
Record at 190. Dr. B also recounted that TO was
released from the hospital after five days, because
she was no longer suicidal and her treatment could
continue on an outpatient basis. Dr. B recommended
that she begin treatment with a particular therapist
and had not seen TO, or followed up on her in any
way, since her discharge from the huspital.
Dr. B testified that, in her opinion, it would be
possible, but doubtful, that TO's condition had
improved dramatically since her discharge and that
her treatment would be long-term in nature. Record
at 192. She testified that, statistically, patients with
such a disorder would not stabilize for 6 to 12
months. Dr. B specifically stated that nothing in her
diagnosis would cause TO to be unable to testify in
court. However, during the course of cross-
examination, Dr. B stated: "I know she could come
into court and do very poorly and that's why I am
here on her behalf so that she does not come to
court." Record at 202. Dr. B testified that she
beheved TO would be "about 18 to 25 years old
before she will be in any way able to master this."
Record at 198.
Dr. B testified that TO was suffering a
"chronic psychiatric illness." Record at 203. She
testified: “You can do a lot of things to make your bhi-
45a
polar disorder worse. In my opinion one of them
would be for her to have a more stressful life with
court. It is very stressful coming to court. I find it
stressful.”
Id. When asked about utilizing measures such as
remote live testimony to reduce the stress on TO, Dr.
B replied that she would still not reeommend it. Dr
B admitted that such a procedure would reduce the
stress, but added, "Does it reduce the stress to the
point that I think it is a value to my patient, no." Jd.
Dr. B emphasized that talking about the events, in
her opinion, would be therapeutic for TO when she is
18 to 25 years of age.
Dr. B stated that, in her opinion, TO was
suffering from an ongoing mental illness, that the
treatment would be protracted, and that the harm
from her testifying in court would be more than de
mininus. She stated that "it would be a major, over-
stimulating event that could be predictably
associated with either a repeat suicide attempt ora
repeat psychiatric hospitalization." Record at 208.
Dr. B testified that TO receiving her subpoena to
appear as a witness 1n court was a contributing
factor in her hospitalization. In a 4 December 2001
entry into TO's record of treatment, Dr. B wrote,
"Patient was only going to have to give depositions,
however, now it appears she will have to attend the
court proceedings." AE XLI at 10.
The military judge found "that it would be
detrimental to [TO]'s mental and physical health
now and in the foreseeable future to testify..." and
46a
that "lalny court appearance would retraumatize
[TO] and would worsen-her mental and physical
health to include her possible suicide." Record at
230-31. Having found her unavailable, the military
judge went on to admit the videotaped deposition,
both as former testimony and under the residual
hearsay exception, finding that the right to
confrontation was satisfied by the appellant's
presence and trial defense counsel's participation in
the deposition.
Admission of the Videotaped Deposition of the
Witness
1. Standard of Review.
We review a military judge's decision to admit
evidence over defense objection for an abuse of
discretion. United States v. Mason, 59 M.J. 416, 420
(C.A.A.F. 2004)(citing United States v. Ayala, 43
M.J. 296, 298 (C.A.A.F. 1995)). We will not overturn
the military judge's ruling unless it was "arbitrary,
fanciful, clearly unreasonable,’ or 'clearly
erroneous." United States v. McDonald, 59 M.J.
426, 430 (C.A.A.F. 2004)(quoting United States v.
Miller, 46 M.J. 63, 65 (C.A.A.F. 1997)). We are
required to consider the evidence in the hght most
favorable to the prevailing party. United States v.
Rerster, 44 M.J. 409, 413 (C.A.A.F. 1996). While we
are bound by the military judge's findings of fact
unless they are shown to be clearly erroneous, we
review the military judge's conclusions of law de
novo. Mason, 59 M.J. at 422 (citing United States v.
Cravens, 56 M.J. 370, 375 (C.A.A.F. 2002) and
47a
United States v. Allen, 53 M.J. 402, 408 (C.A.A.F.
2000)); Ayala, 43 M.J. at 298 (citing United States v.
Cardenas, 9 F.3d 1139, 1147 (5th Cir. 1993) and
United States v. Meyia, 953 F.2d 461, 464-65 (9th
Cir. 1991)).
Our superior court has applied the foregoing
standard of review to a military judge's
determination of unavailability of a declarant.
United States v. Cokeley, 22 M.J. 225, 229 (C.M.A.
1986)(citing United States v. Faison, 679 F.2d 292
(3d Cir. 1982)). The United States Courts of Appeal
define this standard as giving "the presumption of
correctness" to "basic, primary or historical facts,"
but reviewing de novo the issue of whether the
standards established by the Constitution and the
courts to determine unavailability have been met.
McCandless v. Vaughn, 172 F.3d 255, 265 (3d Cir.
1999)(citing Martinez v. Sullivan, 881 F.2d 921, 926
(10th Cir. 1989); Burns v. Clusen, 798 F.2d 931, 941-
42 (7th Cir. 1986); and Dres v. Campoy, 784 F.2d
996, 998 (9th Cir. 1986)).
2. Military Rules of Evidence.
The Military Rules of Evidence regarding
hearsay statements, like their Federal counterpart,
flow from the Sixth Amendment and generally
prohibit the use of hearsay evidence. MIL. R. EVID.
802. The rules allow for the introduction of hearsay
evidence under the conditions and exceptions
enumerated in MIL. R. EVID. 803 and 804.
Specifically, the rules permit the admission into
evidence of former testimony in lieu of the personal
48a
appearance of the witness if the witness is
unavailable and the former testimony was given in:
a deposition taken in comphance with
law in the course of the same or another
proceeding, if the party against whom
the testimony is now offered had an
opportunity and similar motive to
develop the testimony by direct, cross,
or redirect examination.
MIL. R. Evib. 804(b)(1). MIL. R. Evip. 804(a)(4)
defines "unavailability as a witness" to include a
person who is unable to testify because of then-
existing physical or mental illness or infirmity.
3. Right to Confrontation.
There is no dispute that the deposition was
properly ordered and conducted, and the appellant
had ample and full opportunity to cross-exam TO,
with a view toward the deposition's possible later
use at trial. The sole issue in contention is whether
the evidence adduced during the Government's
motion to admit the videotaped deposition was
sufficient to show that TO was unavailable and,
thus, sufficient to protect the appellant's right to
confrontation.
There is ample precedent for finding a
witness, even a critical one, unavailable where the
act of testifying in court is determined to be
detrimental to the witness’ physical or mental well
being. For example, the infirmity of an elderly
49a
witness that prevents the witness from traveling is
an “exceptional circumstance" that can support the
admission of deposition testimony at trial. United
States v. Keithan, 751 F.2d 9 (ist Cir. 1984). Also, a
witness unable to travel because of tuberculosis has
been found to be unavailable, even though the
witness may recover at some point in the future.
Howard v. Sigler, 454 F.2d 115 (8th Cir. 1972).
The Supreme Court, however, characterizes
the right to confrontation as a “bedrock procedural
guarantee." Crawford v. Washington, 541 U.S. 36,
42 (2004). Historically in Anglo-Saxon law, the right
to confront witnesses has been seen as a "face-to-
face" in-court confrontation, combined with a
meaningful opportunity to cross-examine the
witness. /d. As the Crawford court observed, the
common law that served as a starting point for the
drafters of the Constitution conditioned admissibility
of an absent witness's testimonial statement on
unavailability and a prior opportunity to cross-
examine. The Court went on to conclude that the
Sixth Amendment, therefore, incorporated those
limitations. /d. at 54. This is borne out by
"numerous early state-court decisions” that made
such an incorporation "abundantly clear." /d. The
court therefore concluded that the confrontation
clause demands "what the common law required:
unavailability and a prior opportunity for cross-
examination." /d. at 68.
In a case that preceded Crawford, the Court of
Appeals for the Armed Forces stated:
50a
The confrontation clause of the sixth
amendment requires the Government
to demonstrate that the declarant is
unavailable when it seeks to admit a
deposition against an accused ata
criminal trial in the place of live
testimony.
Cokeley, 22 M.J. at 228 (citing United States v.
Inadi, 475 U.S. 387 (1986): Ohio v. Roberts, 448 U.S.
56 (1980): United States v. Crockett, 21 M.J. 423
(C.M.A.1986)). The court described this test as being
“whether the witness is not present in court in spite
of good-faith efforts by the Government to locate and
present the witness." /d.
The courts, generally, have expressed a strong
preference, grounded in the Sixth Amendment, for
live testimony at trial in a criminal case. "(T]rial by
deposition violates both the literal language and the
purpose of the Confrontation Clause...." Stoner v.
Sowders, 997 F.2d 209, 213 (6th Cir. 1993). In
striking down a Kentucky procedure allowing
depositions in lieu of live testimony they termed
"easier and more efficient in terms of judicial and
prosecutorial administration," the United States
Court of Appeals for the Sixth Circuit stated that,
while the procedure “may offer the same reliability
that we require in civil cases," a "deposition is a
weak substitute for live testimony, a substitute that
the Sixth Amendment does not countenance on a
routine basis." /d@ ‘That court went on to state that
"tlhe Constitution docs not allow us to so water
down the explicit requirement of live testimony in
Sla
criminal cases." Jd.
The military courts have adopted similarly
strong language in addressing confrontation issues:
"(I]n order for out-of-court statements to be
admissible under the Confrontation Clause, it is
preferable for face-to-face confrontation to occur at
trial." United States v. Hines, 23 M.J. 125, 131
(C.M.A. 1986). In a case where our superior court
upheld the admission of an excited utterance by a
child victim, they again reinforced the stringent
standards that guarantee the right of confrontation:
"Let there be no doubt, however, that this Court
favors confrontation, and this case should be read
very narrowly." United States v. Arnold, 25 M..J.
129, 133 (C.M.A. 1987). See also, United States v.
Dill, 24 M.J. 386, 387 (C.M.A. 1987)("We have
emphasized that an accused ordinarily has a right
under the Sixth Amendment to the Constitution 'to
be confronted with the witnesses against him."
Hines at 23 M.J. at 127).
The military courts have been equally clear in
placing a heavy burden on the prosecution in making
witnesses available for live testimony at trial: "[Wle
have been quite insistent that the Government
exhaust every means to secure the preferred live
testimony before utilizing an out-of-court
declaration." Hines, 23 M.J. at 133. Our superior
court has termed this burden as "the prosecution's
‘obligation ... to exert all reasonable measures to
acquire the presence of .. . lits] witnesses and tender
them for cross-examination.” Dy//, 24 M.J. at 388
(quoting Hines, 23 M.J. at 133). This obhgation is
52a
firmly rooted in military jurisprudence: "{[Wle have
been quite insistent that all reasonable means of
obtaining crucial witnesses’ presence be undertaken
before we will consider approving substitutes."
United States v. Barror, 23 M.J. 370, 373 (C.M.A.
1987).
The Courts of Appeal have also uniformly held
that the burden of proof of the unavailability of the
witness on the party offering the deposition is a
heavy one. The proponent must "make stringent
efforts to show that a declarant is unavailable.”
Burns, 798 F.2d at 936-37 (citing Barber v. Page,
390 U.S. 719 (1968)). These efforts must be made in
a good faith attempt to produce the witness. Ja. The
lengths to which the proponent must go to produce a
witness is a question of reasonableness. California
v. Green, 399 U.S. 149, 189 (1970). If there is a
possibility, however, albeit remote, that affirmative
measures might produce the declarant, the
obligation of good faith may demand their
effectuation. AHoberts, 448 U.S. at 74.
The reasonableness of the prosecution's efforts
"must be evaluated with a sensitivity to the
surrounding circumstances and the defendant's
interest in confronting the absent witness."
McCandless, 172 F.3d at 266. More diligent efforts
are required where the declarant is a critical
witness, especially one whose interests are In unison
with the prosecution. /d. See United States v.
Foster, 300 U.S. App. D.C. 78, 986 F.2d 541, 543
(D.C. Cir. 1993)('The more important the witness to
the government's case, the more important the
53a
defendant's right, derived from the Confrontation
Clause of the Sixth Amendment"); United States v.
Lynch, 499 F.2d 1011, 1022 (D.C. Cir. 1974) (holding
Confrontation Clause considerations “are especially
cogent when the testimony of a witness is critical to
the prosecution's case against the defendant.");
United States v. A&S Council Oil Co., 947 F.2d 1128,
1133 (4th Cir. 1991) ("Where [a case] involves the
government's most crucial witness, the
[Confrontation Clause] concerns are especially
heightened."); United States v. Quinn, 901 F.2d 522,
529 (6th Cir. 1990).
Ultimately, it is the military judge who must
sift through the facts, apply the law, and make the
determination. In doing so, he or she is faced with a
daunting task. The military judge must carefully
weigh all facts and circumstances of the case,
keeping in mind the preference for live testimony.
Factors to be considered include the importance of
the testimony, the amount of delay necessary to
obtain the in-court testimony, the trustworthiness of
the alternative to live testimony, the nature and
extent of earlier cross-examination, the prompt
administration of justice. and any special
circumstances militating for or against delay.
Cokeley, 22 M.J. at 229. Also, in making such a
determination, the military judge must ensure that
the information supporting the unavailability is
neither "sparse" nor "stale." United States v.
Vanderwier, 25 M.J. 263, 267 (C.M.A. 1987).
But it is important to remember that the
consideration of these factors is not a balancing test,
54a
for the proponent bears the burden of demonstrating
unavailability in the face of the strong preference for
live testimony. Cokeley, 22 M.J. at 228 (citing /naai,
Roberts, and United States v. Crockett, 21 M.J. 423
(C.M.A. 1986)).
In Cokeley, our superior court addressed a
similar fact pattern involving the admission into
evidence of a deposition of a key Government
witness in place of the live testimony of the witness
at trial. In finding an abuse of discretion in the
determination of unavailability at trial, the court
stated that the military judge "did not articulate
that he weighed the relevant considerations."
Cokeley, 22 M.J. at 229. The court also noted that
the testimony of the witness was more than "merely
cumulative or of a minor nature but was absolutely
necessary to prove that a crime had been committed
and to describe the assailant." /d.
Additionally, the need to consider the witness'
infirmity at the time of trial has been found to be a
critical factor in unavailability determinations. /d.
at 230; Burns, 798 F.2d at 936-937; Jones v. Nabisco,
Inc., 95 F.R.D. 25, 26 (E.D. Tenn. 1982). This is
buttressed by the language of MIL. R. Evin. 804(a)(4)
that the witness is unable to be present "because of
death or then existing physical or mental illness or
infirmity....". (emphasis added). in Burns, tor
example, the trial court found a witness was
unavailable based on a physician's testimony ata
hearing held two months after the last contact with
the witness. The appellate court found that the trial
court erred in basing its ruling on stale information,
5Ssa
and by requiring the defendant to show that the
witness was available. The Burns court stressed
that the government was required to make
"stringent efforts to show that [the witness] was
unavailable." /d. at 942.
Applying the foregoing to the facts of this
case, we conclude that the military judge erred in
finding TO unavailable based solely on the evidence
presented by the Government. The deposition was
the critical piece of evidence directly identifying the
appellant as the person with whom TO was engaged
in sexual intercourse on the evening in question. In
short, the verdict rested almost completely on TO's
deposed testimony. As such, her unavailability
required greater scrutiny.
We do not quibble with the qualifications of
Dr. B, or her diagnosis that TO was suffering from a
serious mental illness in December 2001 that would
likely demand years of medication and therapy to
control. We note, however, that Dr. B admitted that
it was possible, but doubtful, that TO had improved
dramatically enough over the 44 days since she had
last seen her to be able to testify at trial. Record at
192. While Dr. B's strong opinion was that such a
rapid recovery would not have occurred, it would
have been a relatively simple process for the
Government to have updated Dr. B's prognosis with
a statement from the treating therapist or to have
had Dr. Bcontact TO to update her prognosis
personally. Despite Dr. B's opinion, based on
considerable medical acumen and reliable statistics,
we are not persuaded on the basis of the record
56a
before us that, on the date of trial, TO was
unavailable to testify.
Also, the tone and tenor of Dr. B's testimony
reveals her zealous advocacy on behalf of TO, an
admirable quality to be expected from a treating
physician. To eliminate the possibility of any
natural bias, however, resulting from the doctor-
patient relationship, an independent medica! opinion
from a court-appointed doctor would have been of
great benefit to the military judge in this case. See
Warren v. United States, 436 A.2d 821, 829 (D.C.
1981).
The Government presented no statement from
TO regarding her fear of testifying, nor was there
any statement from TO's mother, who was,
apparently, available as a witness on the motion if
the Government had called her.2 Such testimony
would have gone a long way toward answering any
question as to whether the court was dealing with an
otherwise cooperative witness who could not testify
because of her mental condition or an uncooperative
witness shielding herself from the uncomfortable
duty of testifying by wrapping herself in her
admittedly serious mental infirmity. While these
are difficult questions to ask of a child witness, they
are, in our minds, absolutely necessary for the
Government to show that it has put forth its best
~The dissent states in part that TO's mother's input "was
already clearly on the record.” We are only able to find one
reference by the trial counsel to TO's mother asking that they
not telephone the house any more because TO 1s afraid it is
about travel arrangements to the tnal. Reeord at 147
S7a
efforts to secure the appellant's right to
confrontation.
Additionally, the Government did not pursue
another avenue potentially available to satisfy the
appellant's right to confrontation. Although the
issue of remote live testimony was broached by
civilian trial defense counsel during argument on the
motion and cross-examination of Dr. B, the military
judge did not reference R.C.M. 914A, MIL. R. EVID.
611(d), or Marviand v. Craig, 497 U.S. 836 (1990).
Nor did he make any specific findings regarding the
availability of alternate forms of live testimony in
lieu of accepting the videotaped deposition into
evidence. In Craig, the Supreme Court addressed
the use of remote closed-circuit television to allow a
child victim in a sexual abuse case to testify
contemporaneously during the trial, be subject to
cross-examination, be observed by the accused and
the trier of fact, but to not have to experience the
trauma of appearing in the courtroom itself, full of
court personnel, spectators, and the person who
allegedly abused her.
In considering the right of confrontation, the
Court in Craig stated that it had never held that the
Confrontation Clause "guarantees criminal
defendants the ahso/ute right to a face-to-face
meeting with witnesses against them at trial."
Craig, 497 U.S. at 844. The Court went on to
emphasize that this right guarantees that each
witness provides testimony under oath, thus
impressing upon them the "seriousness of the
matter" and preventing false statements because of
58a
the potential for a perjury conviction; forcing each
witness to submit to cross-examination, "the
‘greatest legal engine ever invented for the discovery
of truth"; and permitting the trier of fact to "observe
the demeanor of the witness" and thus assess
credibility. /d. at 845-46 (quoting Ca/rfornia v.
Green, 399 U.S. 149, 158 (1970).
In recognizing that there is a compelling
interest in protecting minor victims of sexual abuse
from further trauma and embarrassment, the Court
concluded that the "interest in the physical and
psychological well-being of child abuse victims may
be sufficiently important to outweigh, at least in
some cases, a defendant's right to face his or her
accusers in court." /d. at 853. This mode of
presentation of evidence is specifically recognized in
military practice in R.C.M. 914A and MIL. R. EVID.
611(d). Military judges are authorized to allow child
victims of sexual abuse to utilize remote live
testimony where the child is unable to testify
because, among other reasons, the child witness
"suffers from a mental or other infirmity." MIL. R.
EviIp. 611(d). The military judge should have
demanded that the Government fully explore this
reasonable and available option for live testimony
before admitting the deposition into evidence.
We view the determination of unavailability of
a witness at trial as a prerequisite to introducing
alternative forms of evidence such as depositions as
requiring more than the moving party
demonstrating the existence of an obstacle, even a
compelling one, to the production of the live witness
59a
at trial. The moving party's burden must include
adequate efforts to overcome that obstacle, such as a
showing that invitational travel orders have been
issued to a witness outside the effective range of
service of process. Similarly, in the case before us,
much was left unknown or undone by the moving
party in establishing that the obstacles preventing
TO from testifying at trial could not have been
overcome.
We do not, as the dissent would contend,
require the Government to "do everything humanly
possible" to produce a live witness at trial. We
simply demand what the law compels -- that all
reasonable means of obtaining a key witnesses'
presence be considered before allowing the use of a
substitute for live, in-court testimony. Barror, 23
M.J. at 373. In this case, the Government did not
"exhaust every means to secure the preferred live
testimony before utilizing an out-of-court
declaration." Hines, 23 M.J. at 133.
The dissent refers to the evidence presented
by the Government on the issue of unavailability as
"unrebutted"” and not refuted. There is no burden on
the appellant to present evidence of any kind on this
issue. The burden is wholly on the Government as
the proponent of the deposition. Cokeley, 22 M.J. at
229. The dissent's reliance on United States v.
Cordero, 22 M.J. 216, 221 (C.M.A. 1986) to support
the proposition that the defense has a burden to
rebut the Government's evidence is misplaced. In
Cordero, the Government had demonstrated the
witness's unavailability by showing that the witness
60a
had disregarded the subpoena issued to her and had
fled the country without providing any information
as to her whereabouts. /d. In that case, the
Government had unequivocally demonstrated
unavailability of the witness at the time of trial and
there were no readily apparent alternative methods
of producing her for trial. The court in Cordero was
simply stating the obvious, that, once unavailability
is firmly established, the only way to overcome that
determination is for the appellant to demonstrate
that the witness could be produced. In the present
case, the Government failed to provide a sufficient
showing of unavailability and there was much more
that the Government could have done in an effort to
produce TO.
Our decision in this case is fact-specific. The
record before the court does not contain sufficient
evidence of Government efforts to obtain the witness
at the time of trial to overcome the heavy burden
demanded by the appcllant's right to confrontation.
Accordingly, we conclude that the record before us is
not sufficient to meet the Government's burden to
show that TO was unavailable to testify at the time
of trial, we further conclude that the military judge
abused his discretion in admitting the videotaped
deposition based on the facts before him.
4. Prejudice
In addition to the videotaped deposition of TO,
the Government evidence against the appellant
included two witnesses who testified that the
appellant was aware of TO's age at the time of the
6la
alleged offenses. The Government also presented
the testimony of Private M that he had walked in
and saw TO on top of, and appearing to be having
sexual intercourse with, a "black person" and that
the appellant was the only "colored person" at his
residence at the time. Record at 292-93. The
Government played the videotaped deposition of TO
to the members and the appellant, through counsel,
requested that the cross-examination portion of the
deposition not be played.
Where an error of constitutional dimension is
involved, this court may only affirm if the error is
found to be "harmless beyond a reasonable doubt."
United States v. Simmons, 59 M.J. 485, 489
(C.A.A.F. 2004)(quoting Chapman v. California, 386
U.S. 18, 24 (1967)). The court in Simmons also
defined the harmless error inquiry under the
Chapman analysis as whether it is "beyond a
reasonable doubt that the error complained of did
not contribute to the verdicts obtained." /d. (quoting
Neder v. United States, 527 U.S. 1, 15 (1999)).
In Arizona v. Fulminante, 499 U.S. 279, 296
(1991), the Court made it clear that the Government
has the burden of establishing that an error did not
contribute to the conviction. In that case, the Court
found that, without the confessions, it was "unlikely
that Fulminante would have been prosecuted at all,
because the physical evidence from the scene and
other circumstantial evidence would have been
insufficient to convict." /d. at 297. The Court also
found that the confessions influenced the sentencing
phase of the trial. /d. at 301.
Our superior court has described its focus in
applying the Chapman harmless error analysis as
“whether the error had or reasonably may have had
an effect upon the members’ findings." United
States v. Bins, 43 M.J. 79, 86 (C.A.A.F, 1995). We
cannot affirm findings in a case involving
constitutional error “unless we determine beyond a
reasonable doubt that the error did not contribute to
the findings of guilty." United States v. Hall, 58
M.J. 90, 94 (C.A.A.F’. 2003).
The videotaped deposition was the central and
most critical piece of evidence introduced against the
appellant at trial. We have no doubt that the
appellant's findings of guilty were predicated in
large part on the deposition. Without this evidence,
we are not convinced that the appellant would have
been convicted of either offense. The dissent's
discussion of the sufficiency of the evidence bears no
relevance on this point.
Conclusion
Accordingly, the findings and sentence are set
aside. The record of trial is returned to the Judge
Advocate General of the Navy. A rchearing may be
ordered.
Judge STONE concurs
ROL PH, Chicf Judge (Dissenting)
Having carefully considered the brnets of appellate
counsel, and the arguments, analysis, and case
63a
citations set forth in the majority opinion, | must
very respectfully dissent. Upon thorough review of
the appellant’s record of trial, | do not believe that
the military judge presiding over this contested
general court-martial abused his discretion when he
admitted into evidence the deposition testimony of
TO -- the twelve-year-old victim -- over the objection
of the defense.
Standard of Review
A military judge's ruling on the admission of
evidence, and on the determination of witness
unavailability for purposes of both the confrontation
clause of the Sixth Amendment to the Constitution
and MILITARY RULE OF EVIDENCE 804(a), MANUAL
FOR COURTS-MARTIAL, UNITED STATES (2000 ed.),
should not be overturned on appeal absent a clear
abuse of discretion. United States v. Johnson, 46
M.J. 8, 10 (C.A.A.F. 1997)(quoting United States v.
Redmond, 21 M.J. 319, 326 (C.M.A. 1986)); United
States v. Cokeley, 22 M.J. 225, 229 (C.M.A. 1986).
Under this exacting standard of review, the military
judge’s decision must not be reversed unless it was
“arbitrary, fanciful, clearly unreasonable,” or
“clearly erroneous.” United States v. Miller, 46 M.J
63, 65 (C.A.A.F. 1997)(quoting United States v
Travers, 25 M.J. 61, 62 (C.M.A. 1987). Only when
the military judge's findings of fact are clearly
erroneous or his conclusions of law are patently
incorrect will his considerable discretion have been
abused. United States v. Humphrevs, 57 M.dJ. 83, 90
(C_A.A.F. 2002): United States v. Kelley, 45 M.J.
275, 279-80 (C_A.A.F 1996). If reasonable judicial
64a
minds could logically differ as to the propriety of the
judicial determination made, then no abuse of
discretion has occurred. United States v. Glenn, 473
F.2d 191, 196 (D.C. Cir. 1972). Accord United States
v. Travers, 25 M.J. 61, 62°63 (C.M.A. 1987). We
review de novo the mixed question of law and fact
presented in determining the ultimate issue of
unavailability for purposes of the Confrontation
Clause. McCandless v. Vaughn, 172 F.3d 255, 265
(3d Cir. 1999); Martinez v. Sullivan, 881 F.2d 921,
926 (10th Cir. 1989); Burns v. Clusen, 798 F.2d 931,
941-42 (7th Cir. 1986).
Confrontation and the Admission of Deposition
Testimony
In the landmark case of Crawford v. Washington,
541 U.S. 36 (2004), the Supreme Court set forth
exacting standards aimed at guaranteeing an
accused's Sixth Amendment right “... to be
confronted with the witnesses against him
U.S. CONST. AMEND. VI. Before “testimonial” witness
statements may be admitted into evidence against
an accused, the Confrontation Clause requires that
the witness who made the statement be unavailable,
and that the accused have been afforded a prior
opportunity to cross-examine the witness. Crawford,
541 U.S. at 53-54: see also Idaho v. Wright, 497 U.S.
805 (1990); Ofuo v. Roberts, 418 U.S. 56 (1980).
Under MIL. R. Eviv. 804(a), “unavailability of a
witness” is also required prior to admission of former
testimony ~ including testimony by deposition ~~ and
includes situations in which the declarant “is unable
65a
to... testify at the hearing because of death or then
existing physical or mental illness or infirmity.”
(emphasis added). See Art. 49, Uniform Code of
Military Justice, 10 U.S.C. § 849. When former
testimony is offered as an exception to the hearsay
rule, the proponent bears the burden of clearly
establishing the unavailability of the absent witness.
United States v. Hubbard, 28 M.J. 27, 31 (C.M.A.
1989). Former deposition testimony of a witness
may be admitted against an accused at trial in the
same or another proceeding under MIL. R. EvIb.
804(b)(1), if it was taken in compliance with law, and
‘if the party against whom the testimony is. .
offered had an opportunity and similar motive to
develop the testimony by direct, cross, or redirect
examination.”
It is undisputed that the videotaped
deposition testimony of TO was taken “in compliance
with law,” see R.C.M. 702, was “testimonial” in
nature, and bore “adequate indicia of reliability,” see
Roberts, 448 U.S. at 66. It is also undis»uted that
the deposition of TO afforded the appellant a
personal examination of TO in his physical presence,
was taken under oath, subjected TO to cross-
examination, and, because it was videotaped,
afforded the members the opportunity to observe
TO's demeanor. California v. Green, 399 U.S. 149,
158 (1970). Procedurally, it is important to note that
TO's deposition was taken after the Article 32,
UCM4J, investigation was completed, post-referral of
charges, and after a specific defense request for face
to-face confrontation of TO. Upon order of the
military judge, the Article 32, UCMJ, Investigating
66a
Officer and the Convening Authority subsequently
considered the deposition testimony in relation to
their original recommendation and decision,
respectively, to refer the charges against the
appellant to a general court-martial.? The following
chronology of events is germane to the issues raised
by this assignment of error:
Chronology
03 Jul 2001 Charges against appellant
referred to GCM.
12 Jul 2001 Appellant arraigned.
30 Oct 2001 Defense raises motion to
compel new Article 32,
UCM, investigation to
confront TO.
31 Oct 2001 Military judge denies
motion for new Article 32,
UCM, investigation but
‘ln ordering the taking of TO's deposition, the military judge
directed that the Government provide a copy of the deposition
to the Article 32, UCM.J, Investigating Officer for his
“consideration and comment.” He also ordcred that an
addendum to the Article 34, UCMJ, advice letter be prepared
by the staff judge advocate to advise the convening authority of
the deposition and allowing for that authority to determine “the
impact of the deposition on his decision to reter the charges
to a general court-martial.” See Appellate Exhibit LXIV at 2
Finally, the military judge required the convening authority to
execute a referral memorandum indicating what impact, if any.
TO's deposition and the subsequent Article 34, UCM, advice
letter addendum had upon his decision to refer the appellant's
case to a general court-martial. Appellate Exhibit XXILL
Record at 65 66
67a
orders deposition of TO.
13 Nov 2001 Deposition of TO
conducted.
04 Dec 2001 TO hospitalized for
mental
deterioration.
07 Dee 2001 Government notified of
TO’s hospitalization.
10 Dec 2001 TO discharged from
hospital. [Originally
scheduled date for
commencement of trial].
11 Dec 2001 Defense litigates Motion in
Limine to exclude
deposition testimony of
TO.
07 Jan 2001 Military judge orders
testimony of treating
psychologist (Dr. Bock)
and production of her
curriculum vitae to resolve
Motion zn Limine.
22 Jan 2006 Dr. Bock testifies on
Motion in Limzne.
Appellate Exhibits XXX],
XXXII, XL. XLI admitted
on the Motion.
23 Jan 2006 Military Judge denies
Motion zn /imine and
admits into evidence TO's
deposition testimony.
23-25 Jan 2006 Trial on the merits.
Discussion
68a
a. Opportunity and Similar Motive to Develop the
Testimony.
On 30 October 2001, the appellant, through his
counsel, raised a motion at an Article 39(a), UCMJ,
session to compel a new Article 32, UCMJ,
investigation based on the fact that the defense team
had not had the opportunity to interview TO, and
that she was not present at the original Article 32,
UCMJ, pretrial investigation. Claiming that “the
defense hald] been refused the ability to cross-
examine the victim in this case on the record as
required by case law,” Record at 23, the appellant’s
counsel went on to elaborate extensively on why a.
new Article 32 investigation should be ordered.
Among the reasons offered were the following:
1) The convening authority, in deciding
whether or not to refer the charges to trial,
should have the benefit of the testimony
and cross-examination of the alleged
victim, TO. Record at 23.
2) The testimony of TO, once obtained. should
be considered by the Article 32, UCM.J,
Investigating Officer to determine whether
his recommendation to refer charges to a
general court-martial would remain the
same. Record at 24.
3) An interview of TO alone would be
inadequate, as it would not allow for
adequate impeachment if inconsistencies
were developed. Kecord at 25.
69a
Arguing further on the motion, defense counsel
asserted to the military judge that, cross-
examination of TO “is what we are really looking for
here, to get her on the record and ask her those hard
questions and get them on the record as required by
case law.” Record at 25. The military judge denied
the defense request for a new Article 32
investigation, but ordered a deposition of TO based
upon these stated motivations of the defense team.
The deposition of TO was subsequently conducted
in the presence of the appellant and his counsel, and
presided over by a properly appointed Deposition
Officer. TO’s deposition testimony was taken under
oath and recorded completely on videotape (and fully
transcribed verbatim in writing) allowing the finder
of fact to fully evaluate her appearance and
demeanor during trial on the merits. See
Prosecution Exhibit 3 and Appellate Exhibit XXXII.
During the deposition, the Appellant’s defense team
had an unrestricted face-to-face opportunity to cross-
examine TO regarding the allegations against the
appellant arising from their sexual relationship, and
took advantage of it. See United States v. Connor,
27 M.J. 378, 389 (C.M.A. 1989). Unlike a
preliminary hearing where defense counsel may
reasonably claim lack of motive to cross-examine a
prosecution witness (or examine at all), this post-
referral deposition was conducted in full
contemplation of this already referred general court-
martial. The defense team was clearly aware of all
the relevant issues and possessed the same motive
and opportunity for cross-examination they would
have had if TO had testified in person at trial. See
70a
United States v. Crockett, 21 M.J. 423, 426 (C.M.A.
1986). The original arguments made to the military
judge in support of their motion for a new Article 32
investigation make it clear the defense team knew
exactly what the issues were, what was at stake in
this case, and what they were after through face-to-
face cross-examination of TO under oath. According
to the defense team’s stated position on the record,
this deposition would impact the very foundation of
all original decisions leading to referral of the
charges against their chent to a general court-
martial. Based upon these facts, and a thorough
review of the deposition testimony, no straight-faced
argument can now be asserted that the appellant
and his counsel lacked a similar motive and
opportunity to develop the testimony of TO through
cross-examination.’ /d.
b. Unavailability of TO
On 04 December 2001, just six days before this
trial was originally scheduled to commence, TO was
admitted to the Spirit of St. Louis Hospital in St.
Charles, Missouri, for inpatient psychiatric
evaluation and treatment. AE XXXI. In a letter
dated 07 December 2001, TO’s attending
psychologist notified the prosecution team that:
+ Defense counsel, in seeking at trial to exclude the deposition
of TO he requested. distnygenuously claimed that the deposition
of TO was simply an opportunity to “interview” her, and that “it
was not the defense’s goal to cross-examine her as if we were at
trial.” Record at 94. This, of course was completely contrary to
the argument he made in originally requesting the new Article
32 investigation to the effect that a mere “interview” of TO
would be an madequate remedy as it would not properly
preserve possible “impeachment evidence” Record at 25
Tla
“[TO] was admitted . . . because of severe
danger to herself. She has initiated
psychiatric treatment for her presumed
mood disorder. She is being treated with
medications. She is having significant
psychiatric problems as well as
medication adjustment reactions. She
cannot attend court on any date before
the end of December. She remains
hospitalized at this time. The date of her
discharge is not yet known.”
AE XXXII. Upon her admission, it was noted that TO
(now 13 years old and in the eighth grade) was
experiencing her first psychiatric hospitalization, and
that she had previously been treated as an outpatient
for depression and suicidal ideation. Record at 174:
AE XLI at 9. Her hospitalization was ordered after
her outpatient therapist and the hospital assessment
staff noted a serious deterioration in her mental
status and became alarmed by her suicidal attempts
and gestures. /d. During her admitting psychiatric
evaluation, the following was recorded:
“ ... Recently, patient had to
give a deposition ‘then it a// got really
worse.’ (sic) Patient has had
numerous self-harm events such as
putting a plastic bag over her head and
cutting her hand with a knife ‘/ never
told anvone.’ (sic) Patient has been in
outpatient counseling. Her counselor
recently was concerned about patient's
72a
worsening of status and recommended
psychiatric assessment. At assessment,
the patient could not contract for safety
and felt preoccupied by her thoughts of
killing herself. There was also, in the
past week, an incident on the school
bus, where patient was called various
sexual slur names and a coke (sic)
bottle was thrown at her. Patient had
cut her wrist in the past week.”
AE XLI at 9 (quotes and italics in original). Other
symptoms clearly documented at the time included
diminished sleep, decreased attention and
concentration due to internal distraction,
intermittent racing thoughts, wide mood swings
(including crying spells and irritable temper), and
panic attacks. /d. After six days of inpatient
treatment, TO’s discharge summary (dated 10
December 2001) reflected that she continued to be
“solemn and disinterested with defeated, sad
demeanor’ and also felt “beleaguered by
hopelessness and wished to die.” Jd. at 4. Dr. Bock, |
who had been attending TO throughout her
hospitalization, documented her formal diagnosis
that ‘TO was suffering from, among other things,
“Bipolar li Disorder. Rapid Cycling, Panic Disorder”
and “Post-Traumatic Stress Disorder.” both AXIS |
disorders under the AMERICAN PSYCHIATRIC
ASSOCIATION'S DIAGNOSTIC AND STATISTICAL MANUAL
OF MENTAL DISORDERS (4th ed. 1994)(hereinafter
DSM-IV). Jd.
This evidence was considered by the military
73a
judge in support of the Government’s position that
TO was unavailable as a witness. Not wholly
satisfied with the information contained within TO’s
medical records, and concerned about the accused’
right to confrontation of this critical Government
witness, the military judge ordered the production of
Linda P. Bock, M.D., a board-certified child
psychologist and TO’s attending physician while
hospitalized from 04 to 10 December 2005, asa
witness on the motion. Record at 157, 169-70, and
173-74; AE XL. On 22 January 2002, another Article
39(a), UCMJ, session was conducted by the military
judge to adduce additional testimony and evidence
relating to TO’s medical and psychiatric condition.
At this hearing, the judge received the sworn
testimony of Dr. Bock, and additionally received into
evidence her curriculum vitae and eighty-eight pages
of medical and psychiatric treatment records
relating to TO’s hospitalization. AE XL and XLI.
Dr. Bock’s credentials and expertise as a board-
certified child psychiatrist and analyst practicing
since 1980 were well-established and undisputed.®
Record at 173-74.
* Dr. Bock’s impressive curricu/um vitae reflects an internship
in pediatrics (1974-1975); a residency in pediatrics (1975-1976):
a residency in psychiatry (1976-1978); and a fellowship in child
and adolescent psychiatry (1978-1980). She was engaged ina
full or part-time private adolescent psychiatry practice from
1980 to the time of trial. She served in numerous consulting
and teaching positions relating to her profession, published
extensively in her field. and war a member and/or director of
multiple professional organizations related to the treatment of
psychiatric disorders.
74a
Dr. Bock reiterated on the stand the diagnosis
she previously documented in TO’s medical records.
She went on to carefully explain that “Bipolar II
Disorder, Rapid Cycling, F nic Disorder’® and “Post-
Traumatic Stress Disorder” (PTSD)? are both serious
AXIS I mental] disorders, and that TO clearly met
the criteria for each as set forth in the DSM-IV.
Record at 175-80. Dr. Bock testified that TO’s
mental condition deteriorated significantly after her
13 November 2001 deposition, and that she required
anti-psychotic and anti-depressant medications to
deal with her disorders. /d. at 176-78. TO hada
suicidal “episode” in August 2001 for which she was
prescribed anti-depressants, followed by a second
© Bipolar IT Disorder is characterized by the occurrence of one
or more “Major Depressive Episodes” accompanied by at least
one “Hypomanic Episode.” DSM-IV at 359. “Completed suicide
(usually during Major Depressive Episodes) is a significant
risk, occurring in 10%-15% of persons with Bipolar II Disorder.”
/d. at 360. This disorder is often, as in this case, associated
with “Panic Disorder,’ which involves a discrete period of
intense fear or discomfort that “has a sudden onset and builds
tc a peak rapidly (usually in 10 minutes or less) and is often
accompanied by an imminent sense of danger or impending
doom and an urge to escape.” /d. at 359 and 394-95. When the
“Rapid-Cycling” specifier has been included in a Bipolar
Disorder diagnosis, it indicates the occurrence of tour or more
mood episodes during the previous 12 months. /d. at 390.
* PTSD involves the development of characteristic symptoms
following an extreme traumatic stressor, which may include
persistent re-experrencing of the traumatic event. persistent
avoidance of stimuli associated with the trauma, and numbing
of general responsiveness. The full symptom picture must be
available for more than 1 month, and the disturbance must
cause clinically significant distress or impairment in social,
occupational, or other areas of functioning. /d. at 424.
75a
“suicide gesture” after her deposition testimony was
given. /d. at 178. While hospitalized, Dr. Bock
described TO as:
“.. agitated, irritable. She was
very unstable in mood. At times she
would be [a] little bit tearful and weepy;
and other times she would be bossy and
pushy. She couldn’t sit still. She was
constantly fidgeting, very
uncomfortable . . . [‘llet’s go, get me out
of here[‘]. She was clearly very
uncomfortable.”
Id. at 181. 'TO also experienced a panic episode
during which she believed that there were men
outside her window at the hospital trying to get into
her room to rape her. /d. at 180. Dr. Bock, after
considering all of TO’s demonstrated psychological
abnormalities before and during hospitalization,
concluded that it would be detrimental for her to
testify as a witness at appellant’s trial. Record at
180.
In the majority opinion above, Dr. Bock’s
conclusions concerning the detrimental impact upon
TO of testifying at trial were challenged as
“inadequate” for having been based upon dated or
“stale” information. Because Dr. Bock had not
personally examined TO between 10 December 2001
(the date of TO’s discharge from the hospital) and 22
January 2002 (the date she testified on the Motion) —
a period of approximately 43 davs — the majority
concludes that the military judge abused his
discretion in ruling that she was unavailable.
76a
Clinging to a single response given by Dr. Bock on
cross-examination to the effect that TO’s condition
could “possibly” have improved since 10 December
2001, the majority ignores the reality of the whole of
this board-certified psychiatrist’s testimony. Also,
the question posed on cross-examination simply
asked whether it was “[plossible that [‘I'O’s] in a
better state than when you discharged her?” Record
at 192. It did not ask whether it was “possible” that
testifying at trial would not be detrimental to TO’s
diagnosed psychiatric disorder and clearly guarded
condition. The whole of Dr. Bock’s testimony on this
matter is instructive:
[Cross-examination by defense counsel
of Dr. Bock]
Q. What was her prognosis when
you released [TO from
hospitalization]?
A. Guarded.
Q. What does that mean”?
A. She has a serious chronic
psychiatric disorder. Many
individuals who have young or early
onset bipolar disorder have the
worse (sic) prognosis as opposed to
an individual whose bipolar disorder
doesn't become symptomatic until
they are 25 or 30. Someone who is
symptomatic at five, six is much
worse off. So she is still very early
onset (sic) so her prognosis is
77a
guarded.
Q. Possible [sic] that she’s in a
better state than when you
discharged her?
A. Pardon’?
Q. Is it possible
A. Currently?
Q. Yes. Is it possible?
A. All things are possible.
@. Well, you gave -
A. I would find it doubtful, but it is
possible.
Q. Well, you gave her medication
and ordered her return to school?
A. Statistically, mood stability for
bipolar disorder requires six to e
twelve months before you can expect
to be at what vou call baseline. So it
is a very long recovery period. |
usually counsel the social workers to
advise the parents to expect that it’s
going to be a verv rocky road and
that she may need rehospitalization.
Record at 192.
The entire testimony of Dr. Bock, along with the
evidence presented on this motion, demonstrates
very persuasively that TO was currently suffering
78a
from a serious psychiatric disorder that required
long-term treatment and medication. This board-
certified psychiatrist with over twenty years of
experience made it clear that TO was newly
diagnosed, that treatment and drug therapy® had
been newly initiated, and that “she is in pretty
severe discontrol currently.” Record at 205. Dr.
Bock told the military judge that TO’s illness was
ongoing, required protracted treatment, and opined
that “if she’s called in to testify as a witness in these
proceedings that that will cause even greater trauma
for her.”* Record at 207. Dr. Bock’s responses to
questions from the military judge were unequivocal
on this point:
[Questions by Military Judge]:
Q. Dr. Bock, is it my understanding that
the illness that [TO] is suffering from is
an ongoing illness: is that correct?
A. Correct.
Q. And that her treatment is likely to be
long term?
A. Protracted, ves, sir.
Q. And it is vour opinion that if she’s called
in to testify in these proceedings that
“TO was prescribed Seroquel, a hrain protectant that blocks
dopamine and anti psychotic medication, and Tegretor, which
was a mood stabilizer. AE LXIV at 3: Record at 175-76.
“tas instructive that Dr. Bock’s original admission diagnosis
indicating that TO might be able to testifv “by the end of
December” completely changed after consideration of her full
medical history, present symptoms, and ultimate diagnosis.
79a
that will cause even greater trauma for
her?
A. Yes, sir.
Q. Now, when we speak in terms of trauma
and traumatizing for the child, it is my
understanding from what you are saying
that this is more than a diminimous (sic)
emotional stress placed on the child?
A. Yes, I think a more helpful term to use
is stimulating. Because if you use
trauma, it gets confused with PTSD: and
when someone has bipolar disorder, it is
very difficult for them to tolerate much
stimulation. They have to calibrate how
much stimulation they are going to get
in their life so 1t doesn’t overwhelm and
over stimulate the brain cells. The
medicines are meant to kind of
destimulate as it were to protect the
brain from over stimulation....
Q. But as it relates to [TO], again, if she
testifies we are talking about her
suffering more than minor emotional
distress?
A. Yes. lam-—yes. sir I[ think it would be
a major, over stimulating event that
could be predictably associated with
either a repeat suicide attempt or a
repeat psychiatric hospitalization.
Record at 207-08.
SUa
Dr. Bock’s testimony was unequivocal and
unrebutted. In light of the specific nature and
seriousness of TO’s psychiatric diagnosis, it was also
clearly reasonable that Dr. Bock would not feel the
need to “update” her recommendation within a mere
month-and-a-half of having rendered it. She
testified clearly to this effect on the motion:
“....1T can't think of any other data that
would be pertinent to change my view ..
. | just don’t think it’s good for her to
have to take that level of stimulation. |
just think it’s too much for her, and |
don’t think it is going to change for a
long while. You know{,] six to twelve
months of medication and a longer
period of time in therapy until she
masters talking about traumas. She
may never master talking about
traumas.”
Record at 209.
In my opinion, and on these facts, the military
judge's findings of fact were not “clearly erroneous”
and he did not abuse his discretion in admitting TO’s
deposition testimony. See United States v.
Donaldson, 978 F.2d 381 (7th Cir. 1992)(holding
district court’s ruling that pregnant female was
unavailable when she was admitted to hospital with
scrious illness on eve of trial was proper); United
States v. Amaya, 533 .2d 188, 191 (5th Cir.
1976)(concluding witness unavailable due to loss of
memory, even where evidence did not establish loss
Sla
was permanent); People v. Lombardi, 332 N.Y.S.2d
749 (N.Y. 1972)(finding witness unavailable where
evidence demonstrated her mental and physical
health would be seriously jeopardized and could
have resulted in further and perhaps successful
attempt at suicide.); Warren v. United States, 436
A.2d 821 (D.C. 1981)(holding evidence of severe risk
of psychological trauma to witness that could
potentially flow from testifying at trial sufficient to
sustain judge’s determination that witness was
unavailable). People v. Gomez, 103 Cal. Rptr. 80
(1972)(concluding witness was unavailable where
there was a “strong possibility” that 1t would be
detrimental to her psychological welfare to appear in
court.)
The cases cited by the majority 1n support of
their proposition that the military judge relied on
“dated” information, and that he should have done
more in making his “unavailability” determination,
can clearly be distinguished from this case. Cokely
clearly recognizes that “there is no bright-line rule
which will fit every situation,” and that
“fulnavailability is clear when the witness is not
expected to improve.” 22 M.J. at 229 (citing United
States v. Keithan, 751 F.2d 9 (st Cir. 1984).
Cokeley additionally acknowledges, “delay of the
trial is not necessary in every case where a witness
is ill but may recover someday.” /d. (citing Howard
v. Sigler, 454 F.2d 115 (8th Cir. 1972)). In Cokeley,
the then Court of Military Appeals determined that
the military judge abused his discretion in admitting
over defense objection the deposition testimony of
the alleged victim of Cokeley’s attempted rape. The
$la
alleged victim returned a subpoena to appear at trial
with a note stating that she was unable to travel due
to pregnancy. At the time of trial, counsel learned
that the alleged victim had given birth by emergency
Caesarean section, that complications had ensued
with her and her child, and that her attending
physician had opined that it would be “two to three’
weeks” before her ability to travel could be
ascertained, and that further consultation with the
attending pediatrician was required to ascertain
exactly when she could travel. /d. at 226-27.
Because the alleged victim’s unavailability would
have most likely been “merely temporary,” it was
held to be error to admit her deposition in lieu of her
live presence at trial. /d. at 228. Additionally, the
judge in Cokeley erroneously shifted the burden to
the accused to demonstrate that the witness was
available and necessary. /d. at 229. This case is
clearly distinguishable in that, unlike pregnancy
complications, TO’s mental disorders were clearly
not “merely temporary” afflictions, but rather long-
term psychiatric maladies with no discernible date of
resolution, and no indication as to when it would be
non-detrimental for TO to testify. Delaying the
proceedings was not a realistic remedy where Dr.
Bock clearly indicated it would take “six to twelve”
months for TO to arrive at a “baseline,” and even
then her ability to testify could not be guaranteed.
Record at 192, 198, and 208-09. Dr. Bock was
unequivocal in her estimate that “lO would require
extensive therapy for an indefinite time, and that
she would probably be unable to discuss the events
involving the Appellant for five to twelve years. /d.
83a
The military judge in this case appreciated
that the burden to demonstrate unavailability rested
with the Government (see Record at 157). He
specifically and carefully considered and addressed
virtually all of the factors the Coke/ey decision listed
as important in properly making this determination.
AE LXIV: Record at 228-32. Unlike the situation in
Cokeley, the military judge here clearly articulated
the many factors he considered and weighed in
arriving at his determination that TO was
“unavailable.” AE LXIV.
1 also beheve the majority 1s in error in asserting
that the military judge improperly relied on “stale”
information in making his decision. Again, the cases
cited in the majority opinion are clearly
distinguishable from this case. Burns v. Clusen, 798
F.2d 931 (7th Cir 1986), cited as dispositive on this
issue by the majority, is different in critical respects:
First, Burns involved an adult witness. Here,
we are dealing with a twelve-year-old child victim
who was only thirteen at the time of trial.
Second, Burns involved a period of almost two
months from when the diagnosing psychiatrist had
last had personal contact with the alleged victim (4
Nov 1980) and the motion hearing on unavailability
being conducted (18 October 1980). Following that
period, the Burns tria/ was twice postponed for an
additional period of approximately five months (i.e.,
a total of 7 months) before trial on the merits began,
with no reassessment of the alleged victim’s
condition being made. /d. at 935-36, 939. That is
84a
clearly not the situation here. A mere 43 days
elapsed from the last date Dr. Bock had contact with
TO (10 December 2001) to trial on the merits
commencing (23 January 2002, the day after Dr.
Bock testified and the determination of TO’s
unavailability was announced). Additionally, the
psychiatrist in Burns had diagnosed a mental
disorder (“schitzophreniform disorder”) that had a
clearly documented duration of less than six months,
making it highly probable that the victim would
have been capable of testifying at the time that trial
actually began in that case. /d at 938. 'TO’s
disorder was not short-term in nature, and indeed
may afflict her for many years or the rest of her life.
Record at 207. Accordingly, Dr. Bock’s information,
diagnosis, opinions and prognosis were clearly not
“stale.”
Third, two presiding judges in the Burns case
rendered inconsistent findings on the issue of
“unavailability,” making it difficult upon review to
determine what actually served as the basis for the
finding. The trial court in Burns further erred by
refusing to reconsider its ruling because the
defendant had not introduced expert testimony to
show the witness had recovered, improperly shifting
the burden to the accused to show “availability.”
The findings in this case by Judge Keller are clear,
unambiguous, timely, and consistent with the
evidence presented at trial. No burden shifting ever
occurred during this trial. The infirmities
throughout the Burns trial did not occur at this
general court-martial.
85a
Finally, Burns involved the admission of
preliminary hearing testimony that was not recorded
on videotape, thus depriving the fact-finder of the
opportunity to assess the victim’s demeanor. That is
not the case here.
Similarly, the majority’s reliance on United States
v. Vanderwier, 25 M.J. 262 (C.M.A. 1987) is also
misplaced. In that case, the “unavailable” witness
(ship’s executive officer) was deposed over defense
objection, the military judge entered no essential
findinys of fact, and the witness was ruled
“unavailable” for trial despite the fact that the trial
ended just two-days before the witness’ period of
unavailability ended. /d. at 266-67. The abuse of
discretion in Vanderwier bears no logical
relationship to the diligence and effort exerted by
Judge Keller to determine exactly what TO’s status
was as the trial dates closed in on the parties.
The majority faults the military judge for failing
to obtain a “statement from TO regarding her fear of
testifying,” or “a statement from TO’s mother.” The
logic of this appears faulty in the face of
unavailability determinations based upon formal
and properly diagnosed psychiatric disorders. TO’s
fear of testifying was but one symptom among many
serving as the basis for the ultimate diagnosis of
“Bipolar II disorder, Rapid Cycling, Panic Disorder”
and “PTSD.” The unrebutted mental health expert
here was Dr. Bock. It was her well-considered
psychiatric diagnosis based on years of medical and
psychiatric experience that was critical to this
particular determination. Obtaining a “statement”
86a
from TO would have offered little to Dr. Bock’s
analysis (see Record at 209) or that of the court, and
could have caused TO even more and greater trauma
and symptoms than she was already suffering. ‘lo
request TO to provide a statement in this manner
simply to test her resistance to testifying “would
have unnecessarily burdened the very person whose
well-being the court sought to protect.” See Warren,
436 A.2d at 830. Also, while asking TO’s mother to
provide a “statement” may have given the court
additional information of interest, the mother’s input
in this case was already clear in the record, and
surely would not have altered Dr. Bock’s conclusion.
See Record at 147, 229; AE XLVII.
Finally, the majority suggests that an
“Independent medical opinion from a court-appointed
doctor” was suggested in this case to “eliminate the
possibility of any natural bias... resulting from the
doctor-patient relationship [between TO and Dr.
Bock].” Admittedly, Dr. Bock was genuinely
concerned for the welfare of her psychiatrically
disturbed minor patient, as any properly trained
health care professional would be when caring tor
someone suffering from multiple Axis I mental
disorders. Dr. Bock’s “advocacy” on behalf of TO was
noteworthy more as a reflection of the seriousness of
TO’'s mental condition than for its impact on
relieving her from the obligation to testify at trial.
The majority’s recommendation for independent,
court-appointed psychiatric expertise would make
sense if there had been “dueling” expert witnesses
testifying before the court on this issue, or if Judge
Keller doubted the credentials, expertise, or
S7a
professional opinion of Dr. Bock. That was not the
case here. Dr. Bock’s testimony was persuasive and
absolutely unchallenged by any other mental health
professional. See United States v. Cordero, 22 M.3J.
216, 221 (C.M.A. 1986). The majority’s suggestion
for the appointment of an independent court-expert
in this case would have added tremendous expense
and delay to the proceeding when absolutely no
evidence rebutted Dr. Bock’s diagnosis and opinions.
Also, assuming an “independent” court-appointed
doctor was designated to examine TO, how then
should the trial judge deal with the “natural bias”
flowing from that doctor-patient relationship? I
beheve that, as jurists, we tread on very thin ice
when we counter fully qualified and unrebutted
expert testimony with nothing more than
unsupported argument and speculation.
The requirement of the law is not that the
Government must do everything humanly possible to
get a witness to testify, only that it make a
reasonable, good faith effort to get the witness to
court. United States v. Reed, 227 F.3d 763, 767 (7th
Cir. 2000). “{Tlhe lengths to which the prosecution
must go to produce a witness... 1S a question of
reasonableness’.” /d. (quoting Roberts, 448 U.S. at
74). Once TO’s unavailability was demonstrated by
the Government through the very persuasive
testimony of Dr. Bock, the burden then rested upon
the defense to refute this showing with more than
mere speculation and supposition. Cordero, 22 M.J.
at 221 (holding that once the Government
demonstrated witness had disregarded subpoena
and returned to her home in Germany, burden
88a
shifted to defense to refute her unavailability).
There is nothing in this record to suggest that the
Government acted in bad faith or sought to create
TO’s unavailability at trial. The record is clear in
reflecting the Government’s good faith effort to
obtain TO’s presence at trial, including making
travel arrangements and issuing her a subpoena to
be present.
In light of TO’s serious mental afflictions and
the possible psychological harm that could have
resulted from having her take the stand during trial
on the merits, I believe the military judge was
clearly within the realm of his considerable
discretion in determining that TO was unavailable.
The full and complete direct and cross-examination
of TO at her earlier deposition -- in the presence of
the accused, all counsel, and a qualified deposition
officer -- ensured that the appellant’s confrontation
rights were secured to the maximum extent possible
in this case. The fact that the defense team
ultimately elected to withhold their cross-
examination of TO from the members for tactical
reasons cannot be held against either TO or the
military judge.
c. Remote Live Testimony.
The majority additionally faults the military
judge for not more thoroughly exploring and
exhausting the various possibilities for alternative
forms of live testimony that might have lessened or
eliminated the trauma and/or impact of having TO
testify in person. See Maryland v. Craig, 497 U.S.
89a
836 (1990); R.C.M. 914A; MIL. R. Evib. 611(d). Once
again, I respectfully disagree.
Requiring the exploration of “alternatives to
live testimony” in light of the diagnosed psychiatric
disorders in this case would seem the very antithesis
of prudence. Dr. Bock’s testimony was vnequivocal
that any participation by TO in the court-martial of
the appellant could have a very serious and long-
term impact on her ability to someday fully recover
and go on to lead a normal life. This fully qualified
expert, whose testimony on this issue was again
unrebutted, made it clear that alternatives to live
testimony by TO would not be adequate to prevent
the trauma and potential suicide risk. The victim in
this case is a young girl who at one point during her
hospitalization was very close to “full mania” --
which Dr. Bock described as a form of psychosis.
Record at 193. Dr. Bock was specifically asked on
cross-examination whether alternatives to live
testimony (e.g., being in another room) would
alleviate the stress TO would suffer. Dr. Bock
rephed that, while remote testimony might help
reduce the overall stress TO felt, it would be
insufficient to be of any value to TO in light of her
diagnosis. Record at 203.
If “alternatives to live testimony” are
traditionally employed to alleviate trauma in
individuals who enjoy complete mental health, would
it make any sense to require that such be resorted to
in cases where firmly diagnosed psychoses and
preexisting trauma are manifest? See Gomez, 103
Cal. Rptr. At 82 (declaring that, in cases where
90a
witness illness or infirmity is the cause of
unavailability, it would be “an asinine bow to
futility” to require “reasonable diligence” in
attempting to secure the attendance of the witness).
Judge Keller’s case-speeific findings concerning TO's
unavailability represent a more than sufficient
explanation of why remote hive testimony (or similar
measures) was not a reasonable option in this case.
d. Sufficiency of the Evidence.
Contrary to the assertions of appellant and his
counsel, | believe the evidence in this case clearly
established appellant’s guilt beyona a reasonable
doubt. TO’s identification of the appellant at her
deposition was unequivocal and was corroborated at
trial (albeit reluctantly) by the testimony of the
appellant’s co-accused, Private First Class (PFC)
McNamara. TO convincingly explained why she had
not originally named the appellant as one of the
many individuals she had engaged in sex with, and
clearly affirmed afterwards the nature and extent
her sexual relationship with the appellant. The
asserted defense that TO had somehow “confused”
the appellant with PFC Tapia (another “Latino” with
whom she had engaged in sex) was weak and
unpersuasive in light of TO’s unambiguous
testimony and the entire record of trial. The
evidence in this case left litthe doubt regarding TO’s
positive identification of the appellant, and the
members clearly agreed.
Also, I believe the majority is mistaken in
their assertion that TO had communicated to the
Ola
hospital assessment staff that she had been “gang
raped” by “four to six Marine officers.” In a long
discussion on the record with Dr. Bock concerning
the origins of these alleged statements, it became ~
abundantly clear that these were not the words of
TO, but imprecise words and terms selected by
hospital personne] and recorded in her medica]
records. Record at 215-18. Dr. Bock made it clear
that the term “rape” was sometimes used by hospital
staff personnel in cases involving minors because,
legally, they lack the ability to consent to sexual
acts. /d. and at 210-14. Also, Dr. Bock explained
that she and the hospital staff had no understanding
of military ranks, and they simply chose the wrong
words to use to describe such. Importantly, Dr. Bock
made it clear that the records were not quoting
verbatim what TO had told them, and that those
were their words, not TO’s. /d. TO had no apparent
motive to fabricate her allegations against the
appellant. She never alleged that her sexual
relationship with him was anything but consensual,
and it was clear from the entire record that she had
an amicable relationship with the appellant. The
evidence of appellant’s guilt was more than
sufficient.
e. Conclusion.
Because | am satisfied that the military judge
did not abuse his discretion in ruling that TO was
unavailable as a witness, or in admitting into
evidence her deposition testimony, | would affirm
the findings of guilty and the sentence in this case.
Q>
aa
For the Court
R.H. TROIDL
Clerk of Court
Appendix E
UNITED STATES CONSTITUTION
Amendment VI — Right to Speedy Trial,
Confrontation of Witnesses.
In al] criminal prosecutions, the accused shall enjoy
the right to a speedy and public tral, by an impartial
jury of the State and district wherein the crime shal]
have been committed, which district shall have been
previously ascertained by law, and to be informed of
93a
the nature and cause of the accusation; to be
confronted with the witnesses against him: to have
compulsory process for obtaining witnesses in his
favor, and to have the Assistance of Counsel for his
defence
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.