United States v. Hill

63 M.J. 718, 2006 CCA LEXIS 191, 2006 WL 2268669
CourtUnited States Air Force Court of Criminal Appeals
DecidedJuly 12, 2006
DocketACM 35700
StatusPublished

This text of 63 M.J. 718 (United States v. Hill) is published on Counsel Stack Legal Research, covering United States Air Force Court of Criminal 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. Hill, 63 M.J. 718, 2006 CCA LEXIS 191, 2006 WL 2268669 (afcca 2006).

Opinion

OPINION OF THE COURT

JACOBSON, Judge:

The appellant was convicted, contrary to his pleas, of one specification of committing an indecent act upon ER, the 11-year-old daughter of a coworker, in violation of Article 134, UCMJ, 10 U.S.C. § 934. He was sentenced by officer and enlisted members to a dishonorable discharge, confinement for 337 days, and reduction to E-l. The convening authority approved the findings and sentence as adjudged.

On appeal, the appellant raises two assignments of error. First, he claims the military judge abused her discretion when she denied a defense motion in limine to exclude testimony by a government expert witness regarding the transference of deoxyribonucleic acid (DNA). Second, the appellant asserts he received ineffective assistance of counsel at trial.1 Finding no merit in either of the appellant’s assignments of error, we affirm the findings and sentence.

Background

At the time of trial, the appellant was a 30-year-old staff sergeant (SSgt) assigned to the 86th Mission Support Squadron at Ram-stein Air Base (AB), Germany. He had been on active duty for more than 12 years.

While stationed at Ramstein AB, the appellant developed a friendship with a coworker named SSgt MD. SSgt MD is married to ED, and the couple has four children, all girls. At the time of the incident that led to this court-martial, the girls were ages 11, 6, 5, and 1. The oldest daughter, ER, is the victim in the ease.

The D family lived in Landstuhl housing, which is near Ramstein AB. As the friendship between SSgt MD and the appellant progressed, the appellant became a frequent visitor at their apartment, coming over regularly to socialize. Activities during his visits included drinking alcohol with SSgt MD and eating dinner with the family. ED testified that the appellant was well-liked by the family and the girls often referred to him as “Mr. Al” or “Uncle.”

On 28 June 2002, the appellant was again visiting the D’s apartment. SSgt MD had invited the appellant over for drinks and dinner to celebrate SSgt MD’s birthday. Over the course of the evening, the men drank beer and mixed drinks. When dinner ended, the family socialized with the appellant in the living room. The group chatted, danced, played games, and engaged in some roughhousing with the children. At approximately 2300 hours, ED told the children to get ready for bed, so the three oldest girls left the living room, put on their pajamas, and went to a back bedroom shared by the two middle girls. One sister climbed into the top bed of the room’s bunk bed, while ER and her other sister took the lower bed. The girls began to watch a movie.

A few minutes later the appellant entered the bedroom. According to ER’s testimony at trial, the appellant sat on the bed for a few minutes and briefly tickled her leg before leaving the room. A short time later, the appellant returned to the room. Finding the two younger girls asleep, he sat down on the lower bed, leaned against the wall, and started watching the movie with ER. Shortly thereafter, according to ER, the appellant began tickling her leg again. She testified he first tickled her near the knee, then moved his hand higher up her leg, and then moved it still higher, continuing to tickle her. He then held her legs apart and inserted his left thumb under her panties and into her vagina. ER testified that the appellant then began lowering his head toward her vagina, but stopped when ER said “no.” The appellant retreated from the room. A few minutes later ER went to her mother’s bedroom and told her about the incident. The family immediately called SSgt MD’s supervisor and reported the incident. Within 15 minutes, the supervisor’s husband arrived at the apartment with two military police officers. The military police apprehended the appellant and removed him from the apartment.

[716]*716The appellant was questioned by agents from the Air Force Office of Special Investigations and denied any wrongful touching. In a written statement he admitted going into the girl’s bedroom, sitting on the bed, and leaning against the wall. He also admitted that when he leaned back against the wall, his hand inadvertently touched ER’s thigh, but denied touching her in any other way. Investigators scraped underneath the appellant’s fingernails and scrubbed his fingers and sent these samples to the United States Army Criminal Investigation Laboratory (USACIL), where Dr. Tim Kalafut performed DNA extraction and comparison. Dr. Kalafut found DNA in the fingernail samples taken from the appellant’s left hand that matched ER to a high degree of probability. He also found DNA in the samples taken from the appellant’s right hand that matched ER to a lesser degree of certainty.

Testimony of Expert Witness

At trial, the government called Dr. Kalafut as an expert witness. In challenging portions of Dr. Kalafut’s testimony via a motion in limine, trial defense counsel specifically stated they were not challenging the doctor’s opinion that ER’s DNA was, in fact, present under the fingernails of the appellant’s left hand. What trial defense counsel did object to, however, was the anticipated testimony by Dr. Kalafut that, in his opinion, the most likely source of the DNA was oral or vaginal contact with ER. After hearing Dr. Kalafut’s testimony (in an Article 39(a), UCMJ, 10 U.S.C. § 839(a), session), conducting extensive discussion with counsel, and listening to argument, the military judge denied the defense motion and allowed Dr. Kalafut to testify as to his opinion regarding DNA transference. Before this Court, the appellant asserts the military judge abused her discretion by allowing this specific portion of the expert’s testimony to be presented to the members.

We review the issue of admissibility of evidence under an abuse of discretion standard. GE v. Joiner, 522 U.S. 136, 138, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997); United States v. Houser, 36 M.J. 392, 397 (C.M.A.1993). A military judge’s conclusions of law are reviewed de novo. United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F.1995). If the military judge’s ruling is based on an erroneous view of the law, the judge has abused her discretion. United States v. Nash, 44 M.J. 456, 457 (C.A.A.F.1996).

The starting point for expert testimony issues is with the Supreme Court opinions in Daubert v. Merrell Dow Pharms., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). In Daubert, the Court held:

Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, pursuant to [Fed. R.Evid.] 104(a)[2] whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.

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Daubert v. Merrell Dow Pharmaceuticals, Inc.
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General Electric Co. v. Joiner
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United States v. Reed
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United States v. Ayala
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United States v. Nash
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United States v. Grostefon
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United States v. Turner
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United States v. Houser
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Cite This Page — Counsel Stack

Bluebook (online)
63 M.J. 718, 2006 CCA LEXIS 191, 2006 WL 2268669, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hill-afcca-2006.