United States v. Cox

45 M.J. 153, 1996 CAAF LEXIS 72, 1996 WL 779800
CourtCourt of Appeals for the Armed Forces
DecidedSeptember 27, 1996
DocketNo. 95-0873; Crim.App. No. 30712
StatusPublished
Cited by9 cases

This text of 45 M.J. 153 (United States v. Cox) 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. Cox, 45 M.J. 153, 1996 CAAF LEXIS 72, 1996 WL 779800 (Ark. 1996).

Opinions

Opinion of the Court

CRAWFORD, Judge:

In March 1993, contrary to his pleas, appellant was convicted by a general court-martial composed of officer members at Ells-worth Air Force Base, South Dakota, of attempted sodomy of K; rape of K; sodomy of K; taking indecent liberties with K; committing indecent acts on a child (4 specifications with K and 1 with C), in violation of Articles 80, 120, 125, and 134, Uniform Code of Military Justice, 10 USC §§ 880, 920, 925, and 934, respectively. The convening authority approved the sentence of a dishonorable discharge, 14 years’ confinement, and reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed the findings and sentence. 42 MJ 647 (1995). We granted review of the following issues:

I
WHETHER PLAIN ERROR OCCURRED WHEN THE INSTALLATION’S CHIEF OF -MILITARY JUSTICE TESTIFIED FOR THE GOVERNMENT THAT HE ASCERTAINED THAT THE CHARGES AGAINST APPELLANT HAD A LEGITIMATE BASIS, THUS DESTROYING THE APPEARANCE AND ALL ACTUALITY OF JUSTICE IN THE MILITARY SYSTEM.
II
WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL AND CONSTITUTIONAL ERROR BY ADMITTING 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.

We hold that there was no plain error in admitting Major Treanor’s testimony concerning the basis for charging and no error in admitting the victim’s statement to other witnesses.

FACTS — Issue I

Appellant and his wife were married nearly 10 years at the time of trial. They had two children: K, bom on November 16,1985; and C, born on December 16,1988.

The allegations in this case arose on July 25, 1992, when the neighbor’s child, A, was found by her mother playing “gross” with K. A’s mother found the children hugging in bed. When she questioned the girls, they said they were “playing house” and “French kissing.” A’s mother questioned K about how she learned about this. K said she would get in trouble for telling. K then said she learned this from movies her mom had thrown away. Shortly thereafter, A’s mother called Mrs. Cox. When Mrs. Cox arrived at the neighbor’s house, they questioned K further and learned that she had been sexually abused by her father. Mrs. Cox did not report it immediately. But after 5 days, when she found out that she might be an accessory for not reporting the abuse, she did report it.

Major Treanor was an assistant trial counsel in this case. Prior to the Article 32, UCMJ, 10 USC § 832, investigation, he went to Mrs. Cox’s house. When he arrived, he laid eye-liner pencils on the coffee table. When C saw the eye-liner pencils, she started crying, put her fingers in her mouth, and doubled up in the fetal position. To assist, Mrs. Cox gave C her bunny, “Bea,” because it might help. It did. C picked up the eyeliner pencil and placed it between the bunny’s legs and said that is what Daddy did.

Prior to trial, the defense requested Major Treanor as a defense witness. Mrs. Cox was questioned on direct examination as to Major Treanor’s interview with C but not as to the form and style of questioning. On cross-examination of Mrs. Cox, the defense sought to establish that Major Treanor’s interview contaminated C’s statement. This contamination was raised in the testimony of a de[155]*155fense witness, Dr. Frank. Dr. Frank was concerned about fabrication, leading questions, and Major Treanor’s role, including Ms giving a gift to the child.

Additionally, the defense cross-examined K concerning how long she spent with Major Treanor discussing her Article 32 testimony. K also admitted talking with the OSI, her therapist, and her mother about her testimony. She admitted that reviewing the allegations helped her practice her upcoming testimony.

The Government concedes that C’s statements to her mother and Major Treanor were hearsay. It argues, however, that an objection was waived, and if not waived, that C’s statement was admissible as an excited utterance or under the residual-hearsay rule. Answer to Final Brief at 16 & 17-18.

To rebut allegations of contaminating C by improper questioning, Major Treanor was called in the prosecution’s rebuttal.

With regard to C, he testified on direct examination:

I had to find out in my own mind if there was a legitimate basis for going forward with a charge involving tMs youngest Cox daughter against her father, I needed to find out if it was there or not.

On redirect examination, Major Treanor testified:

We as prosecutors, we as attorneys, have an ethical obligation not to bring fraudulent charges, bad faith prosecutions, so on and so forth. In other words we have to be certain in our own mind that there is a legitimate factual basis to go forward with allegations against an accused. To do otherwise is not only a breach of faith as professionals, but is something which will undermine the entire judicial system, and that’s why we have an obligation to get to the bottom of what the facts are.

There was no objection to the direct or redirect examination set out above.

The defense argues that it is troublesome when the CMef of Military Justice becomes a witness in the case, stating that “[h]ad Major Treanor been the trial counsel, the Rules of Professional Responsibility would not have allowed him to say such things.” Appellant continues to argue:

The conduct of an Air Force Judge Advocate during the course of a trial is subject to strict guidelines by the Air Force Rules of Professional Responsibility, rules of evidence, and case law. The Rules of Professional Responsibility prohibit an attorney in a case from making extrajudicial public comments regarding the guilt or innocence of a defendant [Rule 3.6(b)(4) ]. An attorney may not act as an advocate in a case where he is likely to be a witness [Rule 3.7]. An attorney may not “assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opimon as to the justness of a cause, ... or the guilt or innocence of an accused____” [Rule 3.4(e)]. The alarming tendency of attorneys to either inadvertently become witnesses or to cross-examine witnesses based on personal knowledge was the subject of discussion at the Judicial Conference of the United States Court of Appeals for the Armed Forces, held in May 1995. Professor Imwinkelried discussed tMs phenomenon, noting that disciplinary authorities should enforce tMs proMbition with “special vigor.” Professor Edward J. Imwinkelried, EtMes, The Judicial Conference, Urnted States Court of Appeals for the Armed Forces, 1995, Sec. 12.8.

Final Brief at 8-9 (Emphasis added). The defense contends that his testimony “undercuts the clear intent of the etMcal requirement placed on advocates.” Id. at 11.

As to Issue II, the defense argues that the admission of C’s statements to her mother, Major Treanor and Mrs. Hunter, was plain error. Id. at 17.

DISCUSSION — Issue I

The defense is correct that Air Force Rules of Professional Conduct 3.6(a) and (b)(4), TJAG Policy Letter 26 (Oct. 92), which is identical to the ABA Model Rule of Professional Conduct, proMbits an attorney from making public comments regarding a defendant’s guilt or innocence.

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Cite This Page — Counsel Stack

Bluebook (online)
45 M.J. 153, 1996 CAAF LEXIS 72, 1996 WL 779800, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-cox-armfor-1996.