United States v. Dean

31 M.J. 196, 1990 WL 138457
CourtUnited States Court of Military Appeals
DecidedSeptember 26, 1990
DocketNo. 61,376; ACM 26786
StatusPublished
Cited by16 cases

This text of 31 M.J. 196 (United States v. Dean) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Dean, 31 M.J. 196, 1990 WL 138457 (cma 1990).

Opinion

Opinion of the Court

EVERETT, Chief Judge:

Appellant was tried at Seymour-Johnson Air Force Base, North Carolina, by a general court-martial composed of officer members. The charges were that, “on divers occasions between on or about 10 September 1985 and on or about 1 May 1987,” he had raped and committed sodomy with his daughter Jessica, in violation of Articles 120 and 125, Uniform Code of Military Justice, 10 USC §§ 920 and 925, respectively. [197]*197After a hotly contested trial, the court-martial found him guilty as charged and sentenced him to a dishonorable discharge, 7 years’ confinement, and reduction to the grade of E-l.

The convening authority approved the sentence; and the Court of Military Review affirmed the findings and sentence in a short-form opinion. After Dean petitioned this Court for review, we remanded the case to the Court of Military Review for consideration of admissibility of testimony by two government witnesses about statements of the alleged victim. 28 MJ 170 (1989). Upon further review, the court below concluded that the hearsay statements in question were admissible under Mil.R. Evid. 803(4), Manual for Courts-Martial, United States, 1984, and reaffirmed appellant’s conviction and sentence. 28 MJ 741 (1989). In light of this adverse decision, appellant again sought review from this Court; and we granted this issue for review:

WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL ERROR BY OVERRULING THE DEFENSE OBJECTION, BASED ON MIL.R.EVID. 803(4), TO THE TESTIMONY GIVEN BY TWO GOVERNMENT WITNESSES, NANCY L. BERSON AND NANCY R.F. MILLER.

I

At a pretrial session, defense counsel questioned admissibility of intended testimony by Ms. Nancy Berson and Ms. Nancy Miller about statements made to them at various times by Jessica, who was then 6-years-old. To establish admissibility of these statements, the Government first called Ms. Marcia Herman-Giddens, Director of the Child Protection Team at the Duke University Medical Center in Durham, North Carolina. This witness testified that she held a Master’s Degree in Public Health from the University of North Carolina and was board-certified as a physician’s assistant. She had been involved with “around a thousand” cases of child sexual abuse. She had examined hundreds of children ranging in age “from infants up to age 18.”

On May 12, 1987, she had examined Jessica at the request of Dr. Nan Friedman, an endocrinologist who was seeing this patient. She performed “[a] general physical examination and then a careful genital and anal examination.” Ms. Herman-Giddens “found Jessica to have an abnormal anal examination.” In explaining photographs taken of Jessica’s private areas, she testified that the girl had “virtually no hymenal tissue remaining” and had very noticeable “redness ... around the vaginal opening” and “some clear vaginal discharge.” Also, she found evidence of an old laceration at the opening of the vagina.

Ms. Nancy Berson, Coordinator of the Child Protection Team at the Duke University Medical Center, testified that she was “the primary interviewer for purposes of ... medical diagnoses of cases where we suspect child abuse or child sexual abuse.” On May 12, 1987, Marcia Herman-Giddens had stated to her that Dr. Friedman “was concerned that there was a child at our clinic whose exam appeared to be abnormal, and it was felt that she needed an interview to assess her sexual abuse.” After some discussion with the child’s mother, Ms. Theresa Dean, and with Ms. HermanGiddens, “it was decided that the child should be admitted for a more thorough evaluation of all of her medical problems and that the interviews would proceed during the admission.”

According to Ms. Berson, since she had been at Duke, she had interviewed “approximately 450 to 500 children ... for purposes of medical diagnoses of child sexual abuse. More specifically, in the last year, I have seen approximately 175 to 200.” As a result of “a group decision,” Dr. Friedman, the endocrinologist who originally had made the referral, arranged for Jessica’s admission as an inpatient at Duke. Although Ms. Berson spoke with Jessica briefly on the afternoon of May 12 to make her feel at ease, the first interview was on May 13. When she asked Jessica “if she understood why she was admitted,” [198]*198Ms. Berson received a negative response. Thereupon, without going into detail, she “explained] to Jessica what my role would be during her admission at the hospital,” telling her “that I was a lady who talked with kids in the hospital when we were concerned that things might be bothering them or worrying them.”

She also interviewed Jessica on May 14. At that time, when she asked the girl if she remembered the conversation of the previous afternoon, Jessica replied — “something to the effect that, ‘mommy doesn’t ____ said if I talk, I’ll be punished,’ T can’t talk.’ Then I asked her, ‘How?’ And she said, ‘I’ll get a whipping.’ ” Ms. Berson testified that “the approach we use at Duke is that to make an adequate diagnosis of child sexual abuse, one of the more important parts of that diagnosis is the child’s disclosure and the details and the information the child can tell you about the child sexual abuse.” From her interviews with Jessica, Ms. Berson concluded that the girl had been “sexually abused ... and that it should be reported to the Department of Social Services.”

When asked by the military judge why she had questioned Jessica “as to who was involved” in the sexual abuse, Ms. Berson replied that

one of the main focuses in terms of therapy that we seek, for knowing “who,” is that again, you can’t treat the child if the abuse is on-going. So, that if you don’t know who it is and the person is continuing to sexually abuse the child, then your therapy is not going to be very productive because the child will see no benefit in talking about what happened because they’re going to continue to be victimized. The issue again, is the child’s safety, and that it stop. Based on the presentation of Ms Berson, I will sustain an objection under 803(4), if this is all that I am going to get.

When Ms. Berson had concluded her testimony, the military judge stated:

He explained:

[T]he issue under 803(4) is not the purposes of the individual taking the information. That is not the only issue. The other issue is the purposes of the person giving the information. As of right now, I have no information that would indicate that Jessica had any distress, was there in a hospital for the purposes of obtaining help. And based on that, 803(4) will not apply. This then brings us to the alternative theories unless as I say, there is some other information; and that will take some time. I’ve been through this before under the Residual Hearsay Rules.

In response, trial counsel indicated that she was still planning to proceed under Mil.R. Evid. 803(4) with respect to Jessica’s statements to Ms. Berson and to another witness, Ms. Miller.

Ms. Nancy Miller, a staff psychologist at the Wayne County Mental Health Center,1 then testified for the Government.2 As part of her duties, she “routinely interview[ed] ... suspected victims of child sexual abuse”; and she had spoken with Jessica Dean on September 3, 4, and 8, 1987. When asked by trial counsel, “What questions did Jessica ask you that made it clear to you that she knew why she was there?” Ms. Berson responded:

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Cite This Page — Counsel Stack

Bluebook (online)
31 M.J. 196, 1990 WL 138457, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-dean-cma-1990.