United States v. Arruza

21 M.J. 591
CourtU.S. Army Court of Military Review
DecidedNovember 27, 1985
DocketCM 445358
StatusPublished
Cited by9 cases

This text of 21 M.J. 591 (United States v. Arruza) is published on Counsel Stack Legal Research, covering U.S. Army Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Arruza, 21 M.J. 591 (usarmymilrev 1985).

Opinion

OPINION OF THE COURT

WATKINS, Judge:

Appellant, a divorced officer with approximately fourteen years of active-duty service and assigned as a military chaplain in Europe, contrary to his pleas, was convicted by a general court-martial with members of taking indecent liberties with the body of a female under the age of sixteen years (two specifications) in viola[592]*592tion of Article 134, Uniform Code of Military Justice [UCMJ], 10 U.S.C. § 934 (1982).1 The sentence, to dismissal from the service, confinement at hard labor for five years, and forfeiture of $2000.00 per month for sixty months, was adjudged on 2 November 1983. In conjunction with initial review of this case, the convening authority approved the findings of guilty and the sentence on 9 February 1984. Allied papers associated with the record of trial indicate that the appellant was released on parole on or about 21 December 1984 pursuant to action by the Army Clemency Board.

Before this Court, the appellant alleges (1) a denial of due process resulting from the failure of his battalion commander and accuser to properly investigate the allegations; (2) a confrontational violation resulting from the admission into evidence at trial of the substitute (Article 32, UCMJ, 10 U.S.C.A. § 832) testimony of the six-year-old alleged victim;2 (3) an abridgement of Article 50, UCMJ3 mandating sentence relief; (4) prejudice resulting from the expert testimony of Dr. Vanderwalle, a child psychiatrist who treated the alleged victim; (5) prejudice stemming from the rebuttal testimony of Mrs. Ogilvy-Lee, Army Community Services Director of the Mainz Military Community; and (6) an insufficiency of the evidence to establish the two offenses in issue beyond a reasonable doubt. In addition, the appellant raises certain ancillary issues pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.1982). We find no error and affirm.

We have determined from a review of the entire record that the first, third, fifth, and sixth assignments of error are nonmeritorious and do not warrant further discussion.

Concerning the admission into evidence at trial of the prior testimony of the alleged victim, Heidi C., we find (1) that she took the stand in open court and provided several pages of foundational-type testimony;4 (2) that she became emotionally distraught during her testimony and, notwithstanding extensive efforts by the trial counsel and the military judge to encourage her to testify fully regarding the charged offenses, was psychologically unable to do so; (3) that the trial judge’s determination of unavailability was factually sound and legally correct; (4) that the transcript of her pretrial testimony was for all intents and purposes verbatim;5 and (5) that, in spite of an oral averment by the detailed defense counsel to the contrary, the prior testimony was in fact obtained under circumstances and in a manner reflecting both an opportunity and similar motive to develop that evidence. Accordingly, we conclude that the substitute testimony was properly admitted, that it was buttressed by sufficient indicia of reliability, and that there was no resulting abridgement of the right of confrontation. See Mil.R.Evid. 804(a)(2) and 804(b)(1); United States v. Connor, 19 M.J. 631 (N.M.C.M.R.1984); United States v. Hubbard, 18 M.J. 678 (A.C.M.R.), pet. granted, 19 M.J. 216 (C.M.A.1984); United States v. Kelly, 15 M.J. 1024 (A.C.M.R.), pet. denied, 17 M.J. [593]*59322 (C.M.A.1983); Ohio v. Roberts, 448 U.S. 56, 73, 100 S.Ct. 2531, 2542, 65 L.Ed.2d 597 (1980); California v. Green, 399 U.S. 149, 165-66, 90 S.Ct. 1930, 1938-39, 26 L.Ed.2d 489 (1970); Mattox v. United States, 156 U.S. 237, 240-44, 15 S.Ct. 337, 338-40, 39 L.Ed. 409 (1895); United States v. Johnpoll, 739 F.2d 702, 710 (2d Cir.1984), cert. denied, — U.S. ---, 105 S.Ct. 571, 83 L.Ed.2d 511 (1984), reh’g denied, — U.S. ---, 105 S.Ct. 982, 83 L.Ed.2d 983 (1985); United States v. Pizarro, 717 F.2d 336, 349 (7th Cir.1983); United States v. King, 713 F.2d 627, 630 (11th Cir.1983); cf. United States v. Barror, 20 M.J. 501 (A.F.C.M.R.1985) (admission, under residua] hearsay exception, of out-of-court statement by 14-year-old male alleged victim of sodomy offense did not violate confrontation clause of Sixth Amendment where circumstantial guarantees of trustworthiness present); United States v. Henderson, 18 M.J. 745 (A.F.C.M.R.), pet. denied, 19 M.J. 243 (C.M.A.1984) (admission under residual hearsay exception of out-of-court statement by female teen-aged alleged victim of sexual misconduct not violative of confrontation clause of Sixth Amendment where circumstantial guarantees of trustworthiness present).

Appellant’s other principal assignment of error relates to the expert testimony of Dr. Vanderwalle, a child psychiatrist assigned to the 97th General Hospital in Frankfurt, who provided treatment to Heidi C. in the nature of remedial psychotherapy over a four-month period. We read Dr. Vanderwalle’s testimony as being particularly relevant, insightful, and balanced. The record also reflects that he was a cautious and circumspect witness who was reluctant to extend his testimony to matters relating directly to Heidi’s credibility or an ultimate issue in the case. Such testimony, even by an expert witness,6 can result in prejudicial error. United States v. Cameron, 21 M.J. 59 (C.M.A.1985) (in light of weakness of government’s case against accused on charge of carnal knowledge of his adopted 12-year-old daughter, testimony on direct examination by social worker for Army Community Services to the effect that alleged victim’s account of the incident was believed to be truthful constituted prejudicial error).

In the present case, the evidence of record indicates that the defense opened the door and, as a practical matter, adduced and developed the credibility and ultimate-issue testimony now alleged to have been improperly admitted. To illustrate, on cross-examination Dr. Vanderwalle was invited to testify (1) in the terminology of “sexual molestation” (R. 379); (2) as to Heidi’s credibility and, more specifically, regarding her ability to “fabricate a story” (R. 386); (3) concerning the witness’s personal beliefs with respect to Heidi’s allegations against the appellant as reflected in the transcript of the Article 32 proceedings (R. 394); and (4) regarding the witness’s personal opinion as to the accuracy of Heidi’s report of an earlier sexual incident involving two young boys (R. 398). Under these circumstances, it is apparent that any error relating to the breadth of Dr. Vanderwalle’s testimony was defense induced and therefore constitutes an inappropriate predicate for appellate relief. See United States v. Moore, 15 M.J. 354 (C.M.A.1983) (Cook, J. with Fletcher, J.

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Bluebook (online)
21 M.J. 591, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-arruza-usarmymilrev-1985.