United States v. Coleman

41 M.J. 46, 1994 CMA LEXIS 125, 1994 WL 643752
United States Court of Military Appeals·Decided September 29, 1994·No. No. 93-0920; CMR No. 29450·Published·Cited by 4 cases

Opinion

Opinion of the Court

WISS, Judge:

Appellant was tried by a general court-martial composed of officer members at McClellan Air Force Base, California. Contrary to his pleas, he was found guilty of attempted carnal knowledge (2 specifications) 1 and of committing indecent acts upon a child, in violation of Articles 80 and 134, Uniform Code of Military Justice, 10 USC [47]*47§§ 880 and 934, respectively. He was sentenced to a bad-conduct discharge, confinement and forfeiture of $550.00 pay per month for 3 years, and reduction to E-l. The convening authority approved the sentence as adjudged, and the Court of Military Review affirmed in an unpublished opinion.

This Court granted review of the following issue:

WHETHER THE MILITARY JUDGE ERRED, TO THE PREJUDICE OF APPELLANT, BY IMPROPERLY RESTRICTING THE DEFENSE CROSS-EXAMINATION OF A GOVERNMENT EXPERT WITNESS.

We hold that the military judge did not abuse his discretion in denying defense counsel the opportunity to cross-examine a prosecution expert witness using hearsay that the defense failed to establish was an authoritative publication.

I

The victim in this case was a 14r-year-old female who testified as to appellant’s acts of sexual molestation. The credibility of the victim was the linchpin of the prosecution’s case. To support the victim’s credibility by explaining why a child may delay or not report these matters and “what is going on through the mind of a [sexually abused] child,” the prosecution presented an expert witness. The present issue arises from the military judge’s restriction of defense counsel’s cross-examination of this witness.

The witness in question was Mrs. Julie Holder, a family advocacy therapist at the David Grant Medical Center, Family Advocacy Clinic, Travis Air Force Base, California, who the prosecution offered as an expert on child sex abuse. She opined that it is not unusual for sexually abused children not to report the abuse because the child is often “confus[ed] about how to handle the situation.” Her brief substantive testimony on direct examination, covering only four pages in the record, included an explanation of the five phases of the Child Sexual Abuse Accommodation Syndrome as presented by Dr. Roland Summit in a 1983 published study.2 As Mrs. Holder stated that she had seen the alleged victim one time for approximately 1 hour and as Mrs. Holder did not proffer an opinion as to whether the victim fit within this syndrome, defense counsel did not object to Mrs. Holder’s credentials as an expert or to her testimony.

On cross-examination, however, defense counsel challenged the authority of Dr. Summit’s work, which Mrs. Holder had recited. First, counsel established that Mrs. Holder was “familiar with some critics of that particular work____” Second, without objection by trial counsel, defense counsel relied upon an article by Dr. Lee Coleman, published in the January-February 1986 issue of Forum magazine, entitled, “False Allegations of Child Sexual Abuse, How The Experts Have Been Caught With Their Pants Down.” Mrs. Holder testified that she thought that she had “scanned” this article, and counsel used it as a basis to present detailed questions to Mrs. Holder. Defense counsel elicited Mrs. Holder’s agreement with Dr. Coleman that the syndrome actually cannot indicate “whether a child has or has not been the victim of sexual abuse.” As counsel continued to make references to Dr. Coleman’s article, however, Mrs. Holder declined to respond directly to questions about whether Dr. Summit had used the syndrome actually to indicate whether a child has or has not been the victim of sexual abuse, as she had agreed with Dr. Coleman’s view could not be done, and whether Dr. Coleman had indicated that children can be subjected to manipulation by adults other than the alleged sexual offender.

At one point, when defense counsel attempted to ask Mrs. Holder if she agreed with a particular statement of Dr. Coleman, [48]*48trial counsel objected to defense counsel’s “reading from an article, that’s inadmissible hearsay____” Defense counsel replied that, as Mrs. Holder had testified about one theory regarding child sexual abuse, the defense was attempting to test her expertise by reference to “a particular work” that states “converse theories.” The military judge sustained the prosecution’s objection, stating, “You may question her about alternative theories not by reading from a book or article, counsel.”

With this exchange, defense counsel abandoned any attempt to use Dr. Coleman’s material and instead set out to question Mrs. Holder about “a developing idea” regarding child sexual abuse put forth by Dr. Thomas Martin, chief of psychiatry for the Wilford Hall Medical Center at Lackland Air Force Base, Texas. However, when Mrs. Holder stated that she did not know of Dr. Martin, the military judge sustained trial counsel’s objection to defense questions about “a developing idea.” The military judge instructed defense counsel that he was permitted to ask Mrs. Holder “about the proposition” but prohibited defense counsel from “elud[ing][sic] to the authority by someone whom you are manufacturing through a hole cloth [sic] here, and not the testimony of the witness____”

Thus, defense counsel again abandoned any attempt to establish the “proposition” or its authority and moved to an altogether new line of questioning. Defense counsel elicited Mrs. Holder’s admission that she had made no diagnosis that the child sexual abuse accommodation syndrome applied to the victim in this case and that she was unable to address whether the victim’s allegations were true.

On redirect examination, Mrs. Holder testified that, based on the information she had, the victim presented nothing inconsistent with someone who might fit the child sexual abuse accommodation syndrome. Defense counsel waived reeross-examination.

On appeal appellant asserts that the military judge improperly restricted defense counsel during cross-examination by disallowing defense counsel from reading from Dr. Coleman’s article in Forum magazine, as the article was a learned periodical encompassed by Mil.R.Evid. 803(18), Manual for Courts-Martial, United States, 1984. We disagree. Because the defense failed to establish the proper evidentiary foundation— that Dr. Coleman’s article was a reliable expert publication — we conclude that the military judge properly denied the defense the opportunity to cross-examine Mrs. Holder using this otherwise inadmissible hearsay either as substantive evidence or as a basis of impeachment.

II

A

Mil.R.Evid. 803(18)3 states that the following is “not excluded by the hearsay rule”:

To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

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United States v. Coleman, 41 M.J. 46, 1994 CMA LEXIS 125, 1994 WL 643752 (cma 1994).

41 M.J. 46 (United States v. Coleman) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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