United States v. Daulton

45 M.J. 212, 1996 CAAF LEXIS 86, 1996 WL 787521
CourtCourt of Appeals for the Armed Forces
DecidedSeptember 30, 1996
DocketNo. 95-0734; Crim. App. No. 30750
StatusPublished
Cited by103 cases

This text of 45 M.J. 212 (United States v. Daulton) 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. Daulton, 45 M.J. 212, 1996 CAAF LEXIS 86, 1996 WL 787521 (Ark. 1996).

Opinions

Opinion of the Court

GIERKE, Judge:

A general court-martial at Vandenberg Air Force Base, California, composed of officer and enlisted members convicted appellant, contrary to his pleas, of committing indecent acts with children (3 specifications), in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. The court-martial sentenced appellant to a dishonorable discharge, confinement for 10 years, total forfeitures, and reduction to the lowest enlisted grade. The convening authority reduced the confinement to 8 years, but otherwise approved the sentence. The Court of Criminal Appeals affirmed the findings and approved sentence in an unpublished opinion.

We granted review of the following issues:

I
WHETHER THE MILITARY JUDGE ERRED IN DENYING THE CHALLENGES FOR CAUSE AGAINST LIEUTENANT COLONEL [Lt Col] MENDOZA AND MAJOR MARCH-BANKS.
II
WHETHER THE MILITARY JUDGE VIOLATED APPELLANT’S SIXTH AMENDMENT RIGHT TO CONFRONTATION BY ALLOWING THE COMPLAINANT TO TESTIFY WHILE APPELLANT WAS NOT ALLOWED TO REMAIN IN THE COURTROOM AND COULD ONLY OBSERVE THE WITNESS VIA VIDEO.
[214]*214III
WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY ADMITTING THE TESTIMONY OF [MRS. D].
IV
WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY ADMITTING THE TESTIMONY OF VICKI DAVIO.

We resolve Issues I and II in appellant’s favor. Accordingly, we need not address Issues III and IV.

Factual Background

The prosecution case consisted of four witnesses: the two alleged victims, the victims’ mother, and an expert witness. The defense strategy was announced in their opening statement: “Children lie. Yes, they most certainly do lie.”

During general voir dire of the members by trial counsel, LtCol Mendoza, a medical doctor, answered in the affirmative when asked, “Does it bother any of you that [the victims] have had to talk to many people?” During individual voir dire, LtCol Mendoza explained, “I am not making any decision on whether the accused is guilty or not. It’s just that I said it bothers me. Because this is something that need not be talked about outside. That’s why I said it bothered me.”

Defense counsel asked LtCol Mendoza to explain what she meant by the phrase, “talk about it outside.” She explained, “Not that the child is talking about it, it’s just something that has happened. Maybe it’s true, maybe it’s not. I cannot explain it.” Defense counsel asked whether she would be “bothered by having to make a decision about whether or not the abused [sic] occurred.” She responded, “No, I don’t think I will be bothered by it. It has to be proven first.” She responded in the negative when asked, “Does it bother you that the children are going to have to testify as a means of providing that proof?”

LtCol Mendoza said that she received some training in psychiatry during medical school and training as an intern and as a resident. Her specialty was internal medicine. When working in the emergency room, she was required to determine if children were abused. She opined that child abuse occurs frequently. She has seen children who have been physically abused but never has been personally involved in a case of sexual abuse.

During general voir dire by defense counsel, Maj Marchbanks responded in the affirmative when asked if anyone had been “closely involved” in a sexual abuse case. During individual voir dire she revealed that her sister claimed to have been abused as a child by their grandfather. As a result, her sister “has been undergoing mental therapy for many years.” Defense counsel asked Maj Marchbanks how she felt about her sister’s situation. She responded, ‘Well, when she told me I was shocked, but I’m over that now. That was a number of years ago.” Asked if she believed her sister’s accusation, Maj Marchbanks responded, “Not at first, but then I did later. I think I was in denial.” Defense counsel asked what caused her to change her mind and believe her sister. Maj Marchbanks answered that her mother “had a similar situation” with her grandfather.

Trial counsel asked Maj Marchbanks, “Can you separate what you know about your sister and your family and what they have told you from today’s case?” She responded, “I believe so.” Trial counsel then asked, “Whether or not you believe your sister, is that going to have any bearing on whether or not you believe these children today?” She responded, “No, it shouldn’t.” The military judge then asked, “Major, considering the facts that you’ve revealed to us, do you think you would have any particular difficulty or discomfort in sitting on this case?” She responded, “No, sir.”

• LtCol Mendoza was challenged for cause by the defense. Defense counsel argued that LtCol Mendoza “doesn’t think it’s right to put a child through this,” and that “she is very emotionally involved in abuse and molest [sic] patients, with her being a doctor [215]*215and everything____” Defense counsel argued, “We think it would be hard for her to distinguish her professional background and be able to judge this ease and we challenge her for cause.” The military judge denied the challenge of LtCol Mendoza.

The defense also challenged Maj March-banks for cause. Defense counsel argued:

She’s been personally involved in with her sister confiding in her that she has been abused by her grandfather, who is no longer alive, and that her mother in fact was abused by the same grandfather who is her father. The abuse happened during the ages of five and nine which is the age group we have here. The pattern is so similar to this case that we would say that even though she tried to give her assurances that she would be able to separate it, we don’t believe that would be possible. She seemed very — she did not cry but she seemed very emotional when she answered her questions. She did give the assurances but we think it’s a challenge for cause because she is too intimately involved.

The military judge denied the challenge. The military judge’s denial of the challenges of LtCol Mendoza and Maj Marchbanks are the basis of Issue I.

The alleged victims were appellant’s daughters, S and J, both of whom testified at the court-martial. S was 11 years old at the time of trial, and J was 9 years old.

The prosecution requested that J testify outside the presence of appellant, in a separate room, by using a one-way closed-circuit television system. J’s therapist, Ms. Kelley, testified in support of the request. Ms. Kelley diagnosed and treated J from September 26, 1991, until the trial in December 1992. She saw J a total of 35 times, each session lasting 45-50 minutes. She testified that the purpose of her treatment was “to help re-empower [J] and to help [J] heal and recover from incestful acts.” She diagnosed J as having a post-traumatic stress disorder.

Ms. Kelley testified that, when she first observed J, she “was having difficulty in relationships with friends[,]” was suffering from “hypersomnia where she wanted to sleep all the time,” was tearful and anxious, and was regressing to the point where “she wanted to be a baby again.” Ms.

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Cite This Page — Counsel Stack

Bluebook (online)
45 M.J. 212, 1996 CAAF LEXIS 86, 1996 WL 787521, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-daulton-armfor-1996.