United States v. Armstrong

36 M.J. 311, 38 Fed. R. Serv. 123, 1993 CMA LEXIS 10, 1993 WL 49430
CourtUnited States Court of Military Appeals
DecidedFebruary 25, 1993
DocketNo. 67,613; CM 8800137
StatusPublished
Cited by12 cases

This text of 36 M.J. 311 (United States v. Armstrong) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Armstrong, 36 M.J. 311, 38 Fed. R. Serv. 123, 1993 CMA LEXIS 10, 1993 WL 49430 (cma 1993).

Opinion

Opinion of the Court

COX, Judge:

This appeal concerns two trials. At the first, despite his pleas of not guilty, appellant was convicted by the members of committing sodomy and taking indecent liberties with, and committing an indecent assault upon, his 5-year-old stepdaughter. See Arts. 125 and 134, Uniform Code of Military Justice, 10 USC §§ 925 and 934, respectively. Pursuant to his pleas of [312]*312guilty, he was also convicted of assault and battery upon his wife. See Art. 128, UCMJ, 10 USC § 928. He was sentenced to a dishonorable discharge, confinement for 10 years, and reduction to the lowest enlisted pay grade. The convening authority approved the sentence.

On initial review, the Court of Military Review affirmed the findings as to the charges of assault on appellant’s wife and taking indecent liberties with his stepdaughter; dismissed the indecent-assault charge; set aside the findings as to the sodomy charge and the sentence; and authorized a rehearing on the sodomy charge and the sentence. 30 MJ 769 (1990).

The resulting rehearing on the sodomy charge was convened before officer members. There, contrary to his pleas, appellant was convicted of sodomy. The convening authority approved the adjudged sentence of a dishonorable discharge, confinement for 10 years, and reduction to the lowest enlisted grade. He directed that appellant receive credit for “any portion of the punishment served” under the sentence adjudged at the first court-martial. The Court of Military Review affirmed these findings and the sentence. 33 MJ 1011 (1991).

Appellant has presented four issues for our consideration. We will address two of these: Issue I, which arises out of the second trial; and Issue IV, which arises out of the first trial. For the reasons hereinafter stated, these two issues are dispositive of the appeal.1

ISSUE I

WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL AND CONSTITUTIONAL ERROR [at appellant’s second trial] BY ADMITTING HEARSAY STATEMENTS WHICH WERE NOT MADE FOR MEDICAL PURPOSES AND WHICH DID NOT CONTAIN ANY INDICIA OF RELIABILITY IN VIOLATION OF THE SIXTH AMENDMENT AS WELL AS THE MILITARY RULES OF EVIDENCE.

ISSUE IV

WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL ERROR [at appellant’s first trial] IN REFUSING TO GRANT THE DEFENSE CHALLENGE FOR CAUSE AGAINST CAPTAIN SHINN.

At the second trial, the Government alleged that appellant molested his 5-year-old stepdaughter by inserting his fingers into her vagina and having her perform oral sodomy upon him. It was the Government’s theory that the victim reported the abuse to her older sister, whose observations of her sister’s physical appearance and behavior caused her to believe something was wrong. On December 30, 1986, the victim’s sister reported the abuse to agents of the Criminal Investigation Command (CID) at Fort Riley, Kansas.

After an investigation, the victim was taken from the home by the Kansas Social Rehabilitation Services and placed in a foster home. The victim was also referred to Dr. Thomas Coleman, a clinical psychologist, for assessment and treatment. The treatment was regular and continued for approximately 1 year at the time the state[313]*313ments germane to this appeal were made by the victim.

In December 1987, while preparing for court, trial counsel, Captain Koepp, decided to interview the victim in the presence of Dr. Coleman. For the first time, the victim told trial counsel that appellant “had touched her privates” and made her “suck his private place." At a subsequent session, the victim told Dr. Coleman “that she wanted the people to know, to tell them the truth about what her dad [appellant] did to her.”

At the first trial, the victim’s sister testified in person and the victim testified by videotaped deposition. However, at the second trial, for reasons not pertinent to this appeal, neither the victim nor her sister was called to testify by the Government.2 Rather, the only evidence presented by the Government at the rehearing was testimony by Dr. Coleman and the victim’s mother.

Over timely objection, Dr. Coleman was permitted to testify about statements made to him by the victim. The victim’s mother testified from her personal observations of numerous times appellant forced the victim to sodomize him. This testimony was completely opposite to the sworn testimony she had given in the first trial. This prior testimony and the judge’s instruction concerning it gave rise to granted Issue II. See n.l, supra.

Initially, we are concerned whether the military judge’s ruling to allow Dr. Coleman to testify about the statements made to him by the victim was correct. The hearsay statements were offered and received into evidence as “[s]tatements made for purposes of medical diagnosis or treatment,” Mil.R.Evid. 803(4), Manual for Courts-Martial, United States, 1984. We agree with appellant that the military judge improperly admitted the challenged testimony pursuant to that rule.

The hearsay testimony which is admissible under Mil.R.Evid. 803(4) as Statements for purposes of medical diagnosis or treatment is defined as:

Statements made for purposes of medical diagnosis or treatment and described medical history, or past or present symptoms, pain, or sensation, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

Two precedent conditions must be satisfied to make the statements admissible. First, the declarant must have “some expectation of promoting his well-being and thus an incentive to be truthful.” United States v. Nelson, 25 MJ 110, 112 (CMA 1987), cert. denied, 484 U.S. 1061, 108 S.Ct. 1016, 98 L.Ed.2d 982 (1988). Second, the statements must be made by a declarant “for the purpose of [medical] diagnosis and treatment.” 25 MJ at 112. We have not limited the statements only to those made to medical doctors, and we have recognized that statements to psychologists, such as Dr. Coleman, likewise may fit the rule. Id. at 112-13. United States v. Welch, 25 MJ 23, 24 (CMA 1987).

The statements made in this case clearly do not fit the rule. First, the statements were made by the victim to trial counsel in preparation for trial, not by the victim to a doctor, physician, or other medical person, to describe “medical history, or past or present symptoms, pain, or sensation.” Mil.R.Evid. 803(4). The fact that they were repeated again some days later does not change the character of the statements. Further, it cannot be fairly stated, given the circumstances surrounding these decla[314]*314rations, that this child made the statements in anticipation of being healed or cured of a disease or medical problem.

We do not quarrel with the attractive arguments advanced by the Government. It is true that the entire relationship between Dr. Coleman and the victim was designed to treat her for child abuse and to allow her to cope with the dreadful trauma associated with incest. We also do not quarrel with the Government that every statement made by the patient to her psychologist contributes in some way to the diagnosis and subsequent treatment.

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Bluebook (online)
36 M.J. 311, 38 Fed. R. Serv. 123, 1993 CMA LEXIS 10, 1993 WL 49430, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-armstrong-cma-1993.