United States v. Helms

39 M.J. 908, 1993 CMR LEXIS 662, 1993 WL 623225
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedAugust 31, 1993
DocketNMCM 90 01744
StatusPublished
Cited by2 cases

This text of 39 M.J. 908 (United States v. Helms) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Helms, 39 M.J. 908, 1993 CMR LEXIS 662, 1993 WL 623225 (usnmcmilrev 1993).

Opinion

STRICKLAND, Senior Judge:

The appellant was found guilty, in accordance with his plea, of violating a lawful order by failing to register his handgun aboard Kaneohe Bay Marine Corps Air Station in violation of Article 92, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 892. He was also found guilty, contrary to his plea, of committing indecent acts on a female (his natural daughter) under the age of 16 in violation of Article 134, UCMJ, 10 U.S.C. § 934. He was acquitted of communicating a threat to injure his daughter. The appellant was sentenced to a dishonorable discharge, confinement for 7 years, forfeiture of $289.00 pay per month for a period of 22 months, and a reduction to pay grade E-l. The convening authority approved the adjudged sentence.

The appellant assigns five errors on appeal.1 We conclude that none of these assignments of error has merit. Although not assigned as error, we further conclude that the appellant’s plea to the orders violation is improvident.

I

The appellant, his wife, and two- young daughters lived in base housing aboard the Marine Corps Air Station. The oldest of the daughters, A, was just under four years of age at the time she was alleged to be the victim of the appellant’s indecent acts, and she was four and one-half years of age at the time of trial. The allegations of sexual abuse came about just prior to the appellant’s return from a deployment to Korea. When A’s [908]*908mother informed her that the appellant would be home soon, A reacted by saying that she did not want her father to come home and that she hated him. During further conversation the following day, A stated, “Daddy hurts my pee-pees.” When asked how, she replied, “with his finger.” A related the same information to the flight surgeon who initially treated her and to a clinical nurse specialist to whom she was also referred for treatment.

During the trial, the prosecution called as witnesses A’s mother, the flight surgeon, and the clinical nurse specialist to testify regarding the statements A made to them. A’s mother also testified concerning certain behavioral changes experienced by A after the allegations were revealed. Both the clinical nurse specialist and a clinical psychologist testified that A’s behavior was consistent with that of a child who had been sexually abused. In addition, a Naval Investigative Service agent testified that the appellant admitted making “inappropriate contact” with his daughter on one occasion.2 The victim also testified by means of a closed circuit television connection from a room outside of the courtroom. The victim was essentially unresponsive during the entire testimony. Finally, on rebuttal, the prosecution elicited the testimony of the next-door neighbor who occasionally babysat A. The neighbor testified that when she was babysitting A in her home shortly after the allegations came to light, A made several spontaneous statements while in the bathroom, including, “This is where my daddy hurts me,” while pointing to her vaginal area.

The defense called several witnesses in an attempt to discredit the appellant’s wife. These witnesses testified that they would not believe the appellant’s wife under oath. There was also evidence that the appellant’s wife had affairs with at least two different men while the appellant was deployed. The defense theory of the case was that A’s mother was coaching her so that she could retain custody of the children or that any abuse was inflicted by one of the mother’s boyfriends.

II

The appellant asserts that the military judge erred in permitting the Government to present A’s testimony via closed-circuit television. In other words, he alleges that his Sixth Amendment right to confrontation was violated by the procedure used to examine this witness. The standard for review is whether the military judge abused his discretion in his finding of necessity to implement a procedure which deviated from face-to-face confrontation. See Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990).

The prosecutor proposed using a video link for the testimony of the victim. The defense objected and moved to oppose such a procedure. Evidence was taken on the motion, including that of a clinical nurse specialist who was accepted by the Court as an expert in the area of child sex abuse. It should also be noted that the military judge in a prior session of the Court attempted to question the victim in the courtroom in the presence of the appellant, and the victim was essentially unresponsive to the judge’s questions. The military judge denied the defense motion which, in essence, approved the procedure proposed by the prosecution. In doing so, he found, inter alia, that the nightmares A experienced after the alleged abuse was reported returned when A was told she had to go back to Hawaii for the trial; that testifying in open court could be psychologically damaging; that testifying could cause the event to be relived; that testifying in the presence of her father would result in A suffering serious emotional distress and render her unable to communicate; and, that it was thus necessary to avoid eye-to-eye confrontation in order to obtain A’s testimony.

Thereafter the military judge approved a plan where A testified from the library across the hall from the courtroom. All other participants remained in the courtroom. A camera, monitor, and microphone were placed in the library and in the courtroom such that everyone in-the courtroom saw and heard A, and A could see the appellant and both attorneys and could hear the questions asked by the attorneys.

[909]*909In Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988), the Supreme Court held that the Confrontation Clause required a face-to-face confrontation with witnesses giving evidence at trial. Thus,, a state procedure permitting a screen to be placed between a child sex abuse victim and the defendant, whereby the child could not see the defendant but the defendant could dimly see the victim, was held to be unconstitutional. The right to face-to-face confrontation, however, is not absolute. Craig. The “interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant’s right to face his or her accusers in court.” Id., 497 U.S. at 852-53, 110 S.Ct. at 3167. Upon an adequate showing of necessity, on a case specific basis, a special procedure may be justified which deviates from face-to-face confrontation. Craig. Thus, the courts have upheld child witnesses testifying in the courtroom with the witness chair at an angle facing away from the accused, United States v. Williams, 37 M.J. 289 (C.M.A.1993), with their backs to the accused where there was evidence that the children would be traumatized if forced to testify facing the accused, United States v. Thompson, 31 M.J. 168 (C.M.A.1990), and have upheld a three year old victim testifying behind a screen with one-way closed circuit television allowing the accused to see the victim (but not the reverse) where there was also evidence of possible psychological trauma if the victim had to face the accused.

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Bluebook (online)
39 M.J. 908, 1993 CMR LEXIS 662, 1993 WL 623225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-helms-usnmcmilrev-1993.