United States v. Cabral

47 M.J. 268, 1997 CAAF LEXIS 88, 1997 WL 741979
CourtCourt of Appeals for the Armed Forces
DecidedSeptember 30, 1997
DocketNo. 96-0596; Crim.App. No. 30953
StatusPublished
Cited by4 cases

This text of 47 M.J. 268 (United States v. Cabral) 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. Cabral, 47 M.J. 268, 1997 CAAF LEXIS 88, 1997 WL 741979 (Ark. 1997).

Opinions

Opinion of the Court

CRAWFORD, Judge:

Contrary to his pleas, appellant was convicted of attempted sodomy with a child under the age of 16 and taking indecent liberties with and committing indecent acts upon a child under the age of 16, in violation of Articles 80 and 134, Uniform Code of Military Justice, 10 USC §§ 880 and 934, respectively. The convening authority approved the sentence of a dishonorable discharge, 7 years’ confinement, and reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed the findings and sentence. 43 MJ 808. We granted review of the following specified issue:

[269]*269WHETHER APPELLANT WAS DEPRIVED OF THE OPPORTUNITY FOR EFFECTIVE CROSS-EXAMINATION.

We hold that there was no violation of appellant’s Sixth Amendment right and that the judge did not abuse his discretion in admitting the videotape of the victim.2

FACTS

On January 22,1993, while watching television, 4-year-old J told her mother that her vaginal area hurt. Her mother took her to the restroom, thinking that she needed to be cleaned up but noted a red irritated spot on J's vagina. When asked how this happened, J informed her mother that appellant, her babysitter’s husband, “play so rough with me.” J’s mother and father decided to confront the Cabrals that evening over the telephone. Thereafter, appellant asked about their plans concerning the allegations. J’s father informed appellant that they would take J to the clinic the next day. After the call from J’s parents, appellant and his wife called J’s house that night so many times that J’s mother had to take the phone off the hook.

The next day, Saturday, J was examined by a nurse-practitioner who noted the irritation in J’s vaginal area. Because she did not have the equipment for further examination, she referred J to a specialist. After the examination on Saturday, appellant called J’s mother and said, “Please do not report” this. He said that he would lose his retirement and that he had a family to support. Later that day, immediately before making a report to the police department, J’s mother went to appellant’s house. At that time, appellant asked if J’s mother had been seen by the Child Protective Services. Her mother did not understand and asked “What is Child Protective” Services? Appellant responded, “You will find out. You will be sorry.”

On January 27, 1993, five days after J initially reported this incident to her parents, appellant submitted his retirement papers.

On February 1, 1993, nine days after J’s abuse was discovered, she had a videotaped interview with Special Agent (SA) Chambers of the Air Force Office of Special Investigations (OSI). During this interview, J detailed the abuse in response to non-leading questions.

On February 2, 1993, J was taken to the emergency room in the San Antonio Community Hospital where she was examined by a nurse who specialized in sexual assaults. Ms. Ann Kristine Rowney took pictures of J’s vaginal area. These pictures showed “a thinning or a sparing [sic] of the tissue” at the base of the vaginal opening and an “abrasion on the inner aspect of her left labia majora, which is in the vestibule.” These observations are consistent with findings of sexual abuse, especially the abrasion in the vestibule area. The thin tear by the anus was less suspicious.

On April 14, 1993, J appeared at appellant’s hearing under Article 32, UCMJ, 10 USC § 832, but was reluctant to answer questions. The next day, SA Chambers sat with J at the OSI office and asked her questions presented by the Government and the defense. The parties watched from an adjoining room. The examination was videotaped. A 20-minute rapport session was not videotaped. However, SA Chambers testified that he did not ask J any questions about the alleged abuse during that session.

On a prosecution motion to admit the first videotape statement to SA Chambers, J was called as a witness. However, after she was unable to answer questions even as to her name, the judge asked the defense if they had been able to talk to her. Trial defense counsel stated that there had been “a very non-informative meeting” at her house the previous night. The judge asked if the defense would like another attempt to talk with the child. The individual military counsel replied, “Well, Your Honor, I’m not waiving any right to cross-examine her, but under the [270]*270circumstances it looks to me like she’s not available to testify in this courtroom.”

Later an expert, Dr. Ebert, testified that J was not able to testify in a manner that would produce effective examination from either side. Dr. Ebert farther testified that J would absolutely not be able to testify in open court and that he did not see a closed-circuit camera “as being an effective method either.”

After this testimony, the military judge found J unavailable as a witness under Mil. R.Evid. 804(a), Manual for Courts-Martial, United States (1995 ed.), and admitted the videotapes and the statements under Mil. R.Evid. 804(b)(5), the residual-hearsay rule. The military judge relied on the following indications of the statements’ trustworthiness:

Fifth, I find that the videotape of 1 February 1993 is admissible as residual hearsay and does not violate the accused’s right to confrontation in this case.

Sixth, I find that the 1 February 1993 videotape interview is the most probative evidence of the two sources of evidence. The court members will be able to directly observe the demeanor of [J] as she responds to questions. Furthermore, the court members will hear her testimony directly without a third party, the mother, recalling what the child said to her.

Seventh, I find that the 1 February 1993 videotape is more probative on the points for which it is offered than any other evidence which the Government can procure through reasonable efforts. In fact since the child is unavailable, it is the only evidence other than the testimony of the mother that describes all of the alleged acts committed against the child by the accused.

Eighth, I find that the offered testimony of [J] has the circumstantial guarantees of trustworthiness as follows:

First, the seriousness of the allegations made against the accused was emphasized by Special Agent Chambers.

Second, the necessity for honesty was emphasized to the child, and she repeatedly acknowledged that she would be truthful.

Third, the questions asked of [J] were not leading or overly suggestive in light of [J]’s age of 4 years old at the time of the videotape. The questions may not have been objectionable in court during her testimony on direct examination had she been available.

Fourth, the questions by Special Agent Chambers and answers of [J] were not rehearsed.

Fifth, it would have been almost impossible for a 4-year-old child to fabricate an entire incident as complex as the one described in the videotape.

Sixth, [J] is very honest in the sense that she was still young enough at the time that she lacked inhibitions which would cause her to hold back information. A 4-year-old child lacks knowledge of the sexual world which would enable her to be creative in this area.

Seventh, [J]’s information and knowledge with regard to the alleged sexual offenses is not within the realm of common knowledge for a normal 4-year-old child.

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50 M.J. 782 (Navy-Marine Corps Court of Criminal Appeals, 1999)
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Bluebook (online)
47 M.J. 268, 1997 CAAF LEXIS 88, 1997 WL 741979, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-cabral-armfor-1997.