United States v. Jones

26 M.J. 197, 1988 CMA LEXIS 1123, 1988 WL 55244
CourtUnited States Court of Military Appeals
DecidedJune 20, 1988
DocketNo. 56,953; CM 448455
StatusPublished
Cited by15 cases

This text of 26 M.J. 197 (United States v. Jones) 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. Jones, 26 M.J. 197, 1988 CMA LEXIS 1123, 1988 WL 55244 (cma 1988).

Opinion

Opinion of the Court

EVERETT, Chief Judge:

Contrary to his pleas, appellant was convicted by general court-martial of one specification each of indecent assault and false swearing, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. The members sentenced appellant to a dishonorable discharge, confinement for 8 years, and total forfeitures. The [198]*198convening authority approved the trial results, and the Court of Military Review (one judge dissenting as to sentence) affirmed the findings and sentence in a short-form opinion.

We granted appellant’s petition for review to consider the following issue:1

WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY ALLOWING MRS. FARMER TO TESTIFY OVER DEFENSE OBJECTION AND THEN EXCLUDING A VIDEOTAPE OF THE INTERVIEW WHICH WAS THE SUBJECT OF MRS. FARMER’S TESTIMONY.

Appellant challenges the decision of the military judge to exclude a videotape of an interview of the victim by a social worker concerning the charged assault, after that social worker had testified as to the contents of that interview. We hold that the military judge did err by excluding the videotape but that, in light of the strength of the Government’s case, the error was harmless.

I

This case arose when the victim complained to her mother that appellant had fondled her while the two were in a “fun house” at a carnival. She was flushed, confused, and showed marks on her neck which were described as “hickeys.” Her parents reported the matter immediately, and appellant was apprehended almost on the spot. In an interview with an agent of the Criminal Investigation Division, he denied that he had made any untoward advances.

The victim was a severely retarded, 17-year-old girl.2 Her responses on the stand were such that trial counsel was permitted to lead her through her testimony. See J. Myers, Child Witness Law and Practice § 4.6 (1987) (hereafter Myers). She identified appellant as her assailant and was generally able to describe the incident through the use of “anatomically correct” dolls. See id. at §§ 4.8 and 4.43. However, on cross-examination the girl admitted that on at least one occasion, she had told a social worker, Mrs. Farmer, that a man other than appellant had “touched” Her. See id. at § 4.45.

There were several other references to this other man during the testimony of various witnesses. However, neither the Government nor appellant called Mrs. Farmer to testify. This obviously troubled the members. Indeed, after both sides had rested, the president of the court noted the conversation and asked if the statement the victim had made to Mrs. Farmer would be offered as evidence. Following some discussion, the military judge advised counsel that, if neither of them elected to call Mrs. Farmer, he would advise the members of their right to call witnesses. Defense counsel objected to any testimony from Mrs. Farmer as being hearsay and cumulative of the victim’s testimony, but the military judge overruled the objection.

Ultimately, the military judge allowed the Government to reopen its case and call Mrs. Farmer. She confirmed that the girl had indeed discussed the incident with her. During this discussion, Mrs. Farmer had asked her if anyone else had touched her there, and she had replied in the affirmative. Mrs. Farmer told the court that this had caused her to question the girl further about the incident because retarded children often say “yes” to questions when they intend to respond in the negative. Mrs. Farmer testified that, after asking the girl these additional questions, she had con-[199]*199eluded that the girl had done just that and was really talking about appellant.

Defense counsel did not object to Mrs. Farmer’s qualifications to express this opinion. However, in his cross-examination he sought to limit or impeach her conclusion. In particular, he questioned her about her prior experience in dealing with mentally retarded persons and about her limited background in psychology. He also established the fact that the interview had been videotaped at the request of trial counsel.

After Mrs. Farmer had testified, defense counsel moved to admit the videotape to further undercut the impact of her opinion that there was no person other than appellant involved. See Myers, supra at § 2.2. On objection by the Government, the military judge denied the motion, ruling that the tape was hearsay.

Defense counsel’s theory of the case was that, due to the victim’s limited mental capacity, she had misidentified appellant as her attacker. To this end, he successfully demonstrated her lack of memory during his cross-examination. On voir dire as to competence and again in her testimony on the merits, he showed the members that she had difficulty remembering such simple matters as her address and the names of the adults with whom she had discussed the incident. Defense counsel also questioned whether the girl was susceptible to suggestion, and he elicited information that she had discussed the ease on at least three occasions with the prosecution. See id. at § 2.2, concerning pitfalls of multiple interrogations, and § 4.37 concerning suggestibility of a child witness. The cross-examination of Mrs. Farmer also disclosed a number of conversations between the social worker and the Government concerning the case.

In his summation defense counsel referred to the victim’s general inability to remember and relate facts and pointed out that she was open to suggestion as to answers to questions posed by adults. While not attributing any mendacity to the Government, he argued that appellant erroneously had been suggested to the girl as her assailant and that someone else, the “other man,” was in fact the perpetrator.

II

There are two questions posed by this case. The first is whether the military judge correctly permitted Mrs. Farmer to testify as to the substance of her interview of the victim. Second, whether he should have then allowed defense counsel to present the videotape of the conversation. We answer both questions in the affirmative. However, we conclude that appellant suffered no harm from the military judge’s refusal to permit his counsel to play the tape for the members.

We repeatedly have affirmed the right of a court-martial to call its own witnesses in a search for the truth. Cf. United States v. Carr, 18 M.J. 297 (C.M.A. 1984). This right, of course, is limited by the military judge’s determination that the testimony of such a witness is admissible. Id. at 300, quoting United States v. Parker, 7 U.S.C.M.A. 182, 21 C.M.R. 308 (1956). In this case Mrs. Farmer was called, not to reinforce the fact that the victim had misidentified appellant or to bolster the credibility of the victim as appellant would contend, but to clarify an ambiguity in the evidence. Her testimony offered for this purpose was clearly relevant, since it would assist the trier of fact in determining a fact in issue, i.e., the identity of the assailant. Mil.R.Evid. 401 and 402, Manual for Courts-Martial, United States, 1984.

However, the existence of relevance does not end the inquiry.

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Cite This Page — Counsel Stack

Bluebook (online)
26 M.J. 197, 1988 CMA LEXIS 1123, 1988 WL 55244, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jones-cma-1988.