United States v. Anderson

51 M.J. 145, 1999 CAAF LEXIS 1051, 1999 WL 560994
Court of Appeals for the Armed Forces·Decided July 30, 1999·No. 97-1137/A·Published·Cited by 27 cases

Opinions

Judge CRAWFORD

delivered the opinion of the Court.

Contrary to his pleas, appellant was convicted by a panel of officer and enlisted members of carnal knowledge; indecent acts with two children, K and J; communicating a threat; assault; and assault and battery, in violation of Articles 120, 134, and 128, Uniform Code of Military Justice, 10 USC §§ 920, 934, and 928, respectively. Appellant was sentenced to a dishonorable discharge, 12 years’ confinement, and reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed the findings and sentence in an unpublished opinion. We granted review of the following issues:

I. WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL ERROR BY ALLOWING THE TWO ALLEGED VICTIMS TO TESTIFY BEHIND A SCREEN, IN VIOLATION OF APPELLANT’S CONSTITUTIONAL RIGHT TO CONFRONT HIS ACCUSERS, WHEN THERE WAS NO BASIS TO SUPPORT SUCH A RULING.
II. WHETHER APPELLANT WAS SUBSTANTIALLY PREJUDICED BY THE TESTIMONY OF THE GOVERNMENT EXPERT WITNESS, WHICH IMPERMISSIBLY BOLSTERED THE CREDIBILITY OF THE GOVERNMENT WITNESSES ACCUSING APPELLANT, BY CONCLUDING THAT THEY WERE TRUTHFUL AND GAVE THEIR ALLEGATIONS A “STAMP OF SCIENTIFIC LEGITIMACY” AS WELL AS IMPERMISSIBLY “PROFILING” APPELLANT AS A CHILD SEXUAL ABUSER.
III. WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL ERROR BY INSTRUCTING THE MEMBERS THAT PRIOR STATEMENTS COULD BE CONSIDERED AS SUBSTANTIVE EVIDENCE WHEN THEY DID NOT MEET THE EXPRESS REQUIREMENTS OF MIL.R.EVID. 801(d)(1)(B) and UNITED STATES V. MCCASKEY, 30 MJ 188 (CMA 1990).

We resolve these issues against appellant for the reasons set forth below.

FACTS — ISSUE I

In February 1994, K testified in person during the Article 321 investigation. However, on June 7, 1994, the prosecutor requested to have both K and J testify either by closed-circuit television or out of appellant’s sight.

The defense objected to an ex parte evaluation by Dr. Linda Bessett, a licensed psychologist, of the girls’ ability to testify. The defense suggested an independent, court-appointed expert conduct this evaluation with defense presence at the interview or, in the alternative, that the interview be taped. The defense also requested that the military judge conduct an in camera interview of the girls to assess independently each girl’s emotional state. The military judge refused to prevent Dr. Bessett from conducting this interview, to permit the defense expert to be present, or to have the interview videotaped.

After the judge’s ruling, Dr. Bessett interviewed the girls with Ms. Diana Schofield, a government expert in child sexual abuse, as an observer. Dr. Bessett testified concerning the effect that testifying in the presence of appellant would have upon the victims. Dr. Bessett made specific recommendations concerning the parameters of that testimony. In ruling on the government request, the military judge made the following findings of fact:

[K] testified at the Article 32 investigation and viewed it as a very negative experience. The questions were confusing and it was a very long proceeding. [K] told Dr. Bessett that she was scared about the trial process and about being in the same room as the accused. Dr. Bessett believes it would be psychologically difficult for her to [148]*148testify in court and face the accused, but believes the accused [sic] could identify the accused in court and testify in his presence, as long as she did not have to look at him for a long period of time. Her anxiety level will be very high. Dr. Bessett’s professional opinion is that [K] could testify either behind a screen, or in a position where the accused was not in direct line of sight with her.
On 12 August 1994, Dr. Bessett separately interviewed [J] and her mother ... [who] reported her daughter was having nightmares again. [J] stated she was afraid the accused would kill her, having allegedly threatened to do so while the alleged abuse was occurring. In Dr. Bessett’s opinion, [J] is very scared of the accused, and would not be able to testify if she could see the accused. A tour of the court room did not help her, and her fear is overwhelming. She believes [J] could psychologically cope with identifying the accused from a picture, but she could not cope with identifying the accused in person. Dr. Bessett’s professional opinion is that [J] can testify under limited conditions because of her fear of the accused. Specifically, the preference would be for her to testify in a separate room with only a trial and defense counsel present and she could not see the accused or court members. Alternatively, she believes she may be able to testify behind a screen.

The military judge announced the procedure that would be used in light of his findings:

[K] will be allowed to testify facing away from the Accused, directly facing the court members. [J] will be allowed to testify facing the Trial Counsel. The closed circuit television camera will project their images to a television which will be positioned for the military judge, Defense Counsel, the Accused and Court Reporter to see. And, I note the way the t.v. is setup right now, I can’t see, but it appears I should be able to see the faces of the witnesses from where I’m sitting. A screen will not be set up for [K] unless it’s [sic] presence appears to become necessary. A screen will be positioned along the side of the witness box for [J], The witnesses may already be on the stand before the military judge and members come into the room. The Accused will be seated at the seat at the Defense Counsel table which is farthest away from the witnesses. Cross-examination of the witnesses will be done in such a position of the courtroom that the vision of the witnesses conforms with the spirit of this ruling. The witnesses will be instructed to speak up and to let the Court know when they need a break. Additionally, the witnesses will be allowed to have a victim witness representative sit next to them, but that person will be instructed beforehand not to give any cues or anything to the witnesses.

Further accommodation was directed so that the two defense counsel would have eye contact with each other to facilitate communication, and the military judge indicated that there would be latitude to permit counsel to communicate as needed. Defense counsel renewed his objection to the procedures as a denial of due process.

Prior to K taking the stand, the military judge gave the following instruction concerning the special measures taken to facilitate her testimony:

Members of the court, ... as you can see, a television monitor is being set up and there are video cameras in the courtroom. I have determined that the courtroom will be arranged in the manner that you see it. The witness will be seated in front of me here, facing you the court members with a closed-circuit video camera transmitting the picture of the child testifying on a television monitor so the defense and the Accused can see her face, because she will be facing away from them towards you. You are instructed that you may not draw any inference against or for either side based upon the way the courtroom is arranged during the testimony of [K], The decision to arrange the courtroom in this manner is one that I made. You should evaluate the testimony of [K] the same as all of the other witnesses, and not take into account the arrangement of the courtroom in evaluating any witnesses [sic] testimony.

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United States v. Anderson, 51 M.J. 145, 1999 CAAF LEXIS 1051, 1999 WL 560994 (Ark. 1999).

51 M.J. 145 (United States v. Anderson) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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