United States v. Allison

49 M.J. 54, 1998 CAAF LEXIS 779, 1998 WL 852517
CourtCourt of Appeals for the Armed Forces
DecidedSeptember 22, 1998
DocketNo. 97-0179; Crim.App. No. 9501520
StatusPublished
Cited by27 cases

This text of 49 M.J. 54 (United States v. Allison) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Allison, 49 M.J. 54, 1998 CAAF LEXIS 779, 1998 WL 852517 (Ark. 1998).

Opinion

Opinion of the Court

GIERKE, Judge:

A general court-martial composed of officer and enlisted members convicted appellant, on mixed pleas, of failure to repair, willfully disobeying a superior commissioned officer (2 specifications), making a false official statement, and sodomy (2 specifications), in violation of Articles 86, 90, 107, and 125, Uniform Code of Military Justice, 10 USC §§ 886, 890, 907, and 925, respectively. The victim of the sodomy offenses was appellant’s step-son, ST. Appellant also was charged with assaulting ST, in violation of Article 128, UCMJ, 10 USC § 928, but he was acquitted of that offense.

The court-martial sentenced appellant to a dishonorable discharge, confinement for 20 years, total forfeitures, and reduction to the lowest enlisted grade. The convening authority approved the sentence but granted [55]*55appellant 100 days of credit toward Ms confinement. The Court of Criminal Appeals affirmed the findings and sentence in an unpublished opinion.

TMs Court granted review of the following issue:

WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY ALLOWING UNDER MIL.R.EVID. 801(d)(1)(B) A VIDEOTAPED INTERVIEW OF THE ALLEGED VICTIM TO BE SHOWN TO THE MEMBERS AS A PRIOR CONSISTENT STATEMENT WHERE THE EVIDENCE WAS OBJECTED TO AND WHERE THE VIDEOTAPE WAS NOT MADE PRIOR TO THE IMPROPER INFLUENCE OR MOTIVE TO FABRICATE.

We hold that the military judge did not abuse Ms discretion.

Factual Background

The prosecution relied heavily on the testimony of ST to prove the sodomy offenses. Appellant testified in his own defense and repeatedly demed having any sexual contact with ST. The defense strategy was to discredit ST’s testimony.

In March 1987, while stationed in Germany, appellant met and married his wife, a German national. She had a son, ST, who was Vk years old at the time of the marriage. In 1989 they moved from Germany to Fort Campbell, Kentucky. In 1992 they returned to Germany.

In November 1994, ST, then 9 years old, told a classmate and a teacher that appellant had sexually abused him. On November 30, 1994, ST repeated Ms accusations in a videotaped interview by a school social worker, Ms. Darla Sims. Immediately after Ms interview with Ms. Sims, ST was interviewed by an agent of the U.S. Army Criminal Investigation Command (CID), Special Agent (SA) Fitzgerald.

ST also was interviewed by a child psycMatrist, Major (MAJ) Perotta, M.D., who had “six or seven” sessions with ST and used “talk therapy” as well as “play therapy.” During cross-examination of MAJ Perotta, defense counsel explored the possibility that ST was influenced by leading questions during the investigation of Ms accusations. Defense counsel also suggested the possibility that ST had lied and persisted in the lie to please others because they, especially Ms mother, encouraged him to adhere to Ms accusations.

On Ms own motion, the military judge excluded the mterview by SA Fitzgerald because the questiomng was too leading and conclusory. The granted issue concerns only admissibility of the videotaped interview by Ms. Sims.

One theory advanced by the defense was that ST’s mother imtially did not believe ST’s accusations, but then saw an opportumty to mampulate ST so that she could establish grounds for divorce, obtain a monetary settlement, gain custody of the children, and avoid returning to the Umted States. As the trial progressed, defense counsel also suggested that other adults “caused [ST] to reinforce a story that he made up,” and that under adult questioning ST adhered to Ms story but “just changed details.” At one point defense counsel suggested that ST had been influenced by trial counsel’s pretrial interview.

ST’s trial testimony about appellant’s sexual abuse was specific and certain, but he appeared confused about what was happening to Ms family. ST testified that appellant performed anal sodomy on him three times, once while they were living in the Umted States and twice m Germany. ST testified that he was 5 or 6 years old the first time. ST also testified that appellant made him perform oral sodomy “many times” in the Umted States and Germany.

On cross-examination, ST testified that he and Ms mother (then appellant’s wife) did not want to go back to the Umted States. Apparently referring to a psycMatric interview in December 1994, ST testified that he told the military psycMatrist, MAJ Perrota, that he did not want to go back to the Umted States “because for what my dad had done to me.” He testified that Ms mother wanted to divorce appellant. He also testified that Ms [56]*56mother told him that he would not have to go to the United States. He denied that his mother told him that they were going to the United States.

Defense counsel also elicited that ST had seen two boys trying to have intercourse with their little sister and performing oral sodomy on each other. ST admitted playing “fake sex” with his younger sister. He denied watching appellant’s pornographic videos.

Defense counsel attempted to pin down the time when ST learned that his mother intended to divorce appellant. ST testified that his mother said nothing about a divorce, but that she received a letter from appellant saying that he was taking their daughter away. When defense counsel asked ST if he learned about the letter before he was interviewed by Ms. Sims (the social worker) or anyone else, ST responded that it was “during.” He explained: “Like during what was going on and then when I didn’t have to go to anybody about this then I told Brian and Brian told some of his friends in fifth grade or sixth grade.” Defense counsel did not attempt to further clarify ST’s testimony.

ST indicated that he was more concerned with the break-up of his family than with staying in Germany. He testified that he did not report appellant’s abuse earlier because “my dad was still with my mom in the house” and “he can like take my mom away if I tell somebody and he starts knowing.” ST testified that, after Mrs. Allison (appellant’s ex-wife) received the letter from appellant in mid-November, he was concerned that appellant might take his sister away and leave him and his mother behind. He tried to explain: “[B]ecause then I started knowing why he wanted to take her away, because she’s brown and I’m white and my mom’s white and my — and he only wanted to take my sister and — I’m kind of confused.”

Mrs. Allison testified that she was divorced from appellant the Friday before the trial “[bjecause of what — what I think had happened to my son.” She had decided earlier that she did not want to live with appellant, but she did not file the divorce action until January.

Mrs. Allison testified that, when ST first reported appellant’s abuse in late November or early December, she did not believe him. She gave the CID a sworn statement saying that she did not believe him.

On cross-examination, Mrs. Allison testified that she saw Ms. Sims on November 18 and told her that she was afraid appellant might be upset if he found out that she wanted a divorce. This conversation was before ST accused appellant of sodomy.

Mrs. Allison testified that she told her children, including ST, that appellant wanted custody of the children, but she denied telling them that they might have to return to the United States.

Mrs.

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Cite This Page — Counsel Stack

Bluebook (online)
49 M.J. 54, 1998 CAAF LEXIS 779, 1998 WL 852517, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-allison-armfor-1998.