United States v. Dollente

45 M.J. 234, 1996 CAAF LEXIS 87, 1996 WL 787533
CourtCourt of Appeals for the Armed Forces
DecidedSeptember 30, 1996
DocketNo. 95-0986; Crim.App. No. 30601
StatusPublished
Cited by50 cases

This text of 45 M.J. 234 (United States v. Dollente) 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. Dollente, 45 M.J. 234, 1996 CAAF LEXIS 87, 1996 WL 787533 (Ark. 1996).

Opinions

Opinion of the Court

SULLIVAN, Judge:

Appellant was tried by a general court-martial composed of members at Aviano Air Base, Italy, in February of 1993. Contrary to his pleas, he was found guilty of committing indecent acts (2 specifications) and taking indecent liberties with the same female under the age of 16, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. He was sentenced to a bad-conduct discharge; confinement for 4 years, and reduction to pay grade E-l. The convening authority approved the sentence as adjudged on June 2, 1993. In an unpublished opinion, the court below affirmed on May 31, 1995, after modifying the findings and reassessing the sentence.

On December 13, 1995, this Court granted review of the following issues:1

I
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN GRANTING THE PROSECUTION’S MOTION IN LIMINE TO EXCLUDE THE EXPERT TESTIMONY OF CAPTAIN (CHAPLAIN) FRANCIS XAVIER MCGERITY ON THE BASIS THAT HE WAS NOT QUALIFIED TO RENDER AN EXPERT OPINION, WHICH WAS TO THE SUBSTANTIAL PREJUDICE OF APPELLANT.
II
WHETHER IT WAS PREJUDICIAL ERROR TO PERMIT THE PROSECUTION’S EXPERT WITNESS TO PRESENT TESTIMONY THAT PSYCHOLOGICAL TESTING OF [LGG] INDICATED SHE WAS NOT LYING.
[236]*236III
WHETHER IT WAS PLAIN ERROR TO PERMIT THE PROSECUTION TO ADMIT EXPERT TESTIMONY CONCERNING THE “BASIC PROFILE OF A PERPETRATOR.”

We hold that, although individually each error in this case does not warrant reversal, the “combined effect of these ... errors was so prejudicial so as to strike at the fundamental fairness of the trial.” United States v. Parker, 997 F.2d 219, 222 (6th Cir.1993). In sum, the “cumulative effect of these errors denied appellant a fair trial.” United States v. Banks, 36 MJ 150,152 (CMA 1992).

The Court of Criminal Appeals delineated the facts giving rise to this appeal of appellant’s conviction of committing indecent acts and taking indecent liberties with his 13-year-old step-daughter. It said:

LGG’s credibility was the critical issue in this hotly contested ease. LGG, appellant’s 13-year-old step-daughter, made the allegations after a fight with her parents concerning ongoing disciplinary problems. Following the report, she was placed in foster care and remained there throughout the trial.
About one week before trial, LGG signed a statement indicating: “I just wanted to make a statement that all I said never happened. I just said those things because I was mad ... After all I said, my mom is still on my stepdad’s side, so I decided to stop it all because I didn’t want to be alone ... My mom always told me how I should thank God for my stepdad because my real dad never cared.”
Following this statement, the government scheduled a meeting with all parties to correct some misperceptions; namely, that LGG and her sister would not be placed in foster care and her mother would not go to jail. It is unclear how LGG developed these ideas or the impact, if any, they may have had on her initial decision to withdraw her allegations.
In any event, LGG testified at trial “because it’s true” and she did not believe she had a choice. She affirmed her initial allegations and explained her temporary retraction stating: “Because I didn’t want to have to go in here and say everything all over again. I thought it would be easier to just say I was lying.” There was contradictory evidence as to whether family members pressured LGG to change her story.
Both LGG’s mother and sister testified for the defense, contradicting various aspects of LGG’s testimony. LGG’s diary, which contained no mention of sexual abuse but described her hatred of appellant, was also admitted into evidence. Appellant denied sexually abusing LGG. However, he testified that she may have misinterpreted his hugging her and sometimes he “goes on top of her to wake her up.” He explained that he would lay on the bed beside her and in reaching across her, part of his body would go on top of hers while he was trying to wake her. He denied ever being fully on top of her. An Air Force Office of Special Investigations (AFOSI) agent testified that during appellant’s interview he admitted he may have accidentally touched LGG’s breasts while he was hugging her.
Trial defense counsel initially offered Chaplain M as an expert on the symptoms and evaluation of post-traumatic stress syndrome to aid the members in understanding the medical problems of the victim. Later, he supplemented this offer stating that Chaplain M will provide “the basis for his diagnosis in this case of the victim suffering from a post-traumatic stress syndrome____”
During an Article 39(a) session, Chaplain M described himself as a therapist, detailing his undergraduate degree in Psychology, Master’s degree in Education, Counseling, and Human Services, and his 15 years of counseling experience. He stated that he was not a qualified diagnostician in the Air Force but previously made diagnoses which were reviewed and approved by others. He further said that he had not examined LGG but was relying on his review of the evidence, her diary, and Dr. D’s, a psychologist who examined LGG, diagnosis [237]*237of post-traumatic stress syndrome. He stated that the term “R/O” in Dr. D’s report meant a confirmed diagnosis. Chaplain M also indicated that he counseled appellant and his wife and that he did not believe appellant committed the offenses.
The government’s expert, Capt (Dr.) R, contradicted Chaplain M’s interpretation of the term “R/O”, stating that it meant “rule out” as opposed to confirming a diagnosis. The prosecutor challenged M’s qualifications and offered to bring in another witness, such as Dr. D, to testify.
The military judge excluded Chaplain M’s testimony holding that an “insufficient basis has been shown to qualify [Chaplain M] ... to testify as to his opinion or psychological diagnosis concerning [the victim].” Appellant alleged this was error because Chaplain M qualified as an expert based on his training and experience.
Before Captain R, the government’s expert witness, testified, the defense moved to exclude any testimony which commented on the victim’s truthfulness. All parties agreed to limit the doctor’s testimony and the military judge cautioned Capt R to avoid expressing an opinion as to the credibility of the victim or any other witness in this case.
Capt R subsequently testified that he conducted a mental-status examination of LGG which consisted of an interview and psychological testing. He indicated that during this evaluation, he was looking for “any type of self-centered, manipulative, vindictive, or any other pathological personality characteristic, and none were revealed in the interview or testing.” Capt R later testified that false reports of sexual abuse are discovered by reviewing inconsistencies in statements and detecting self-centered and manipulative personality characteristics.
There was no objection to this testimony at trial.

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Cite This Page — Counsel Stack

Bluebook (online)
45 M.J. 234, 1996 CAAF LEXIS 87, 1996 WL 787533, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-dollente-armfor-1996.