United States v. Kelley

45 M.J. 275, 1996 CAAF LEXIS 94
CourtCourt of Appeals for the Armed Forces
DecidedSeptember 30, 1996
DocketNo. 95-0413; Crim.App. No. 93-1208
StatusPublished
Cited by48 cases

This text of 45 M.J. 275 (United States v. Kelley) 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. Kelley, 45 M.J. 275, 1996 CAAF LEXIS 94 (Ark. 1996).

Opinions

Opinion of the Court

GIERKE, Judge:

A military judge sitting as a general court-martial at Naval Surface Group, Long Beach, California, convicted appellant, contrary to his pleas, of committing indecent acts (3 specifications) and taking indecent liberties with his 6-year-old daughter, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. The adjudged and approved sentence provides for a dishonorable discharge, confinement for 10 years, forfeiture of $818.00 pay per month for 60 months, and reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed the findings and sentence. 42 MJ 769.

We granted review of the following issues:

[277]*277I
WHETHER TESTIMONY OF A FAMILY COUNSELOR CONCERNING STATEMENTS BY THE PUTATIVE VICTIM WAS PROPERLY ADMITTED UNDER THE MEDICAL TREATMENT EXCEPTION TO THE HEARSAY RULE WHERE, ALTHOUGH THE RECORD ESTABLISHES THAT THE DECLARANT PERCEIVED A NEXUS BETWEEN HER ACCUSATIONS AND HER VISITS TO THE COUNSELOR, IT IS UNCLEAR WHETHER SHE WAS ACTUALLY SUFFERING FROM ANY PARTICULAR DISORDER OR SYMPTOM, PERCEIVED THAT SHE WAS SUFFERING FROM ANY PARTICULAR MALADY, OR UNDERSTOOD THAT TALKING TO THE COUNSELOR WOULD ALLEVIATE ANY SUCH MALADY.
II
WHETHER, IN FINDING A STATEMENT ADMISSIBLE UNDER THE RESIDUAL HEARSAY EXCEPTION, THE MILITARY JUDGE SHOULD HAVE CONSIDERED CIRCUMSTANCES OUTSIDE THE MAKING OF THE STATEMENT IN ASSESSING WHETHER IT POSSESSED SUFFICIENT INDICIA OF RELIABILITY AND, IF SO, WHETHER THE STATEMENT WAS SUFFICIENTLY RELIABLE FOR ADMISSION IN LIGHT OF ALL THOSE CIRCUMSTANCES.

Factual Background

Although appellant was charged with rape and forcible anal sodomy of his 6-year-old daughter, CK, the military judge found him guilty of the lesser offenses of committing indecent acts by “touching [CK]’s vagina and crotch with his penis” and “touching her buttocks and anus with his penis.” The military judge also found appellant guilty of committing indecent acts by fondling CK’s vagina and taking indecent liberties by causing CK to fondle his penis, except for the words, “at divers times.” The prosecution witnesses included CK, who was 7 years old at time of trial; Mr. Mills, a licensed family counselor; and Andy K, a baby-sitter for CK.

Mr. Mills was accepted by the court as an expert in child sexual abuse. He testified that CK was “a client” whom he saw 4 times a month for the 7 months preceding the trial. Each session was approximately 50 minutes long. Mr. Mills testified that he was introduced to CK as a “talking doctor,” to whom “she could talk about whatever she wanted, her feelings, anything.” He testified that CK appeared to understand the purpose of his sessions with her, and that on one occasion she asked him “to help her with taking out anger on others.” When asked if CK said “that she knew actually what your function was,” Mr. Mills responded, “I don’t believe that’s in her capabilities as a young child.” In response to questions by the military judge, Mr. Mills testified that he did not tell CK that she was being treated for sexual abuse, “because then I would be leading the client and that doesn’t go very well in many courts, so I didn’t tell her she’s here because she was sexually abused.”

Mr. Mills testified that on July 16, 1992, CK spoke in the third person, saying that “a child that washed their father wouldn’t like it.” CK said that her father’s “private part would get bigger.” On July 23, CK said that she showered with her father “and that they would pretend that he was a baby and she would wash him.” CK told Mr. Mills that “when she washed his private parts, he would moan.”

On July 30, CK told Mr. Mills “that dad did nasty things to her____” She told him “that he put his private part in her back private part.” When Mr. Mills asked her to point to the part of the body she was talking about, she pointed to the anal area. On August 6, CK told Mr. Mills, “he sticked [sic] his private part in my back private part and put his private part in her front private part and then they rubbed each other.”

On September 10, CK said that appellant put his fingers in her vagina. Mr. Mills gave CK a female anatomical doll and asked her to show him what she meant. She asked for a male doll, asked Mr. Mills to close his eyes and say he was peeking, and attempted to [278]*278put the penis of the male doll into the vagina of the female doll. She also placed the face of the male doll on the female doll’s chest area and said the male doll was sucking on the female doll’s chest area.

On October 1, CK told Mr. Mills that “she had seen yellow pee, white pee, and red pee from her father.” Mr. Mills testified that he assumed “the red pee to have something to do with red lotion,” and “white pee either to be something to do with lotion or ejaculation.”

On October 8, CK told Mr. Mills that appellant had touched her in the bathroom, her own bedroom, and her parents bedroom. She said that “it hurt both in the back and in the front.” She demonstrated what had happened: “she laid on the table, spread her legs apart, and wiggled her hips back and forth....”

On December 10, Mr. Mills asked CK her feelings about her father. She responded “that she loves him a little and that she wanted to go back with mom and dad____” Mr. Mills testified that CK’s play then “became highly sexualized.” He explained:

She started pretending as if she was in a bathroom and had taken her clothes off and wanted other children to see her body naked and she changed to calling me her son and saying that she was going to bath[e] me completely and I told her that I already knew how to do that myself and she did not take that as an answer, that she would go ahead and do that, obviously that didn’t take place. Shortly after that she called me her husband and pretended to get into a bathtub, pretending to take her clothes off, asking me to do the same and told me to get on top of her, to which I asked then what happens and she said we kiss and I said then what, and she showed a motion which resembled a pelvic thrust. I asked her what part of his body touched her body and she put her hand up to her genital area and drew her hand away saying the long part and then put her hand between her legs pushing it in and out saying right here.

Mr. Mills testified that CK described or demonstrated acts that would not ordinarily be within the knowledge and experience of a child her age. He specifically referred to CK’s description of touching her father and her statement that “his private part grew when she touched it.”

Mr. Mills testified that during the last session preceding the trial, January 14, he attempted to persuade CK that her father had not done what she had described. CK “very insistently said that he had.”

Mr. Mills testified that sometimes CK would ask him to stop questioning her. She would deny that an event happened if she wanted to “stop talking about something that was difficult.”

CK testified as a prosecution witness. She said that appellant “does nasty stuff’ to her. When asked to explain the “nasty stuff,” she testified that appellant touched her vaginal area and her buttocks. She testified that she saw appellant’s “private part” while she was in the shower with appellant and that she washed his penis. She denied that appellant touched her with his “private part.”

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Cite This Page — Counsel Stack

Bluebook (online)
45 M.J. 275, 1996 CAAF LEXIS 94, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-kelley-armfor-1996.