United States v. Anderson

47 M.J. 576, 1997 CCA LEXIS 471, 1997 WL 616680
Navy-Marine Corps Court of Criminal Appeals·Decided September 4, 1997·No. NMCM 96 00467·Published·Cited by 5 cases

Opinion

DOMBROSKI, Chief Judge:

A general court-martial composed of officer and enlisted members convicted the appellant, contrary to his pleas, of committing sodomy and indecent acts with his 11-year-old stepdaughter, in violation of Articles 125 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 925 and 934 (1994). The members sentenced the appellant to confinement for 10 years, total forfeitures, reduction to pay-grade E-l, and a dishonorable discharge. The convening authority approved the sentence without modification and, except for the dishonorable discharge, ordered it executed. Before this court the appellant sets out five assignments of error.1 We have [578] examined the record of trial, the assignments of error, and the Government’s response thereto, and we have considered the oral arguments presented in this case. 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.

Background Facts

This case was fully contested before a general court-martial composed of officer and enlisted members. The child-victim was appellant’s 11-year-old stepdaughter. She testified as to some 20 instances of indecent acts by the appellant who fondled her breasts and inserted his fingers into her vagina. She also testified about five instances of fellatio and five instances of cunnilingus with the appellant. There were no signs of physical trauma when the child was medically examined upon her initial report of abuse.

The child reported the acts of sodomy to the trial counsel very late in the progress of the case — some 9 months after the initial report of abuse. Through the testimony of a Naval Criminal Investigative Service (NCIS) Agent, the Government also introduced the appellant’s statement, taken at the time of the child’s initial report of abuse, in which the appellant admitted the indecent acts but made no mention of any acts of sodomy. The voluntariness of the confession was litigated both in a pre-trial motion to suppress and before the members. There was substantial evidence of inconsistent statements on the part of the child, including recantations of the initial report of abuse, as well as evidence of the child’s dysfunctional relationship with her mother, who often resorted to corporal punishment which the child feared. Record at 196,200, 218.

A clinical psychologist who had examined and treated the child was called by the Government and qualified as an expert in clinical psychology and child sexual abuse. He testified regarding child sexual abuse accommodation syndrome, and he indicated that delayed and fragmented reports of abuse, recantations, and, in this victim’s case, the late report of sodomy, were not unusual for a child who had suffered abuse. Record at 230-240.

The appellant testified and denied the validity of his statement to the NCIS agent and denied committing the offenses charged. The defense also introduced evidence of the appellant’s good character through the testimony of a number of military supervisors. Record at 264, 304, 305, 312.

The members resolved the factual issues against the appellant, returning findings of guilty after deliberating for about an hour.

Expert Assistance

In his first assignment of error, the appellant claims that the military judge erred in denying a defense request for an expert with qualifications similar to those of the government’s expert. We disagree.

Rule for Courts-Martial 703(d), Manual for Courts-Martial, United States (1995 ed.)[hereinafter R.C.M.], governs the employment of expert witnesses at Government expense, including the requirement for a showing of relevance and necessity for the expert testimony. Upon a showing of relevance and necessity, the Government is not required to provide a specifically-named expert witness, but may provide an “adequate substitute.” See United States v. Reveles, 41 M.J. 388 (1995); United States v, Stombaugh, 36 M.J. 1180 (N.M.C.M.R.1993); United States v. Robinson, 24 M.J. 649, 652 (N.M.C.M.R.1987).

Prior to trial in this case, a defense request for expert assistance was approved, [579] and a social worker assigned to the Family Counseling Center was made available to assist the defense. Appellate Exhibit IX. See Defense Exhibit D. When the defense learned that the Government intended to call a clinical psychologist to testify, the defense asked the convening authority for the expert assistance of a specific clinical psychologist. He was willing to assist the defense at a rate of $100.00 per hour. Appellate Exhibit X. The convening authority denied the defense request. The request was thereafter renewed before the military judge. Record at 105 et seq. After hearing arguments, the military judge denied the defense request.

We note as an initial matter that the defense request to the convening authority and then again to the military judge at trial for an additional expert was styled, and is appropriately reviewed, as a request for expert assistance. This assistance was in addition to that which had already been provided to the defense. At no point did the defense indicate any intention to call their named clinical psychologist as an expert witness, or make any showing that there was testimony to be offered which would be relevant and necessary. R.C.M. 703(c)(2)(B)(i). The defense counsel asked for expert assistance and got it. The question before us is whether the military judge abused his discretion when he refused the request for additional expert assistance.

Upon a showing of necessity, an accused is entitled to the employment of appropriate expert assistance. United States v. Games, 22 M.J. 288 (C.M.A.1986), cert, denied, 479 U.S. 985, 107 S.Ct. 575, 93 L.Ed.2d 578 (1986). In United States v. Allen, 31 M.J. 572, 623 (N.M.C.M.R.1990), affd, 33 M.J. 209 (C.M.A.1991), cert, denied, 503 U.S. 936, 112 S.Ct. 1473, 117 L.Ed.2d 617 (1992), we delineated a three-part test for establishing necessity: (1) why expert assistance is needed; (2) what would expert assistance accomplish for the accused; and (3) why is the defense counsel unable to gather and present the evidence that the expert assistant would be able to develop. The defense need only make a minimal showing of need, or necessity for the expert assistance. United States v. Burnette, 29 M.J. 473, 475 (C.M.A.1990); see United States v. Ingham, 42 M.J. 218 (1995). We do not find that the defense in this case made even that minimal showing of necessity, and we decline to presume such a need.

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United States v. Anderson, 47 M.J. 576, 1997 CCA LEXIS 471, 1997 WL 616680 (N.M. 1997).

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