United States v. Kelley

42 M.J. 769, 1994 CCA LEXIS 107, 1994 WL 794748
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedDecember 12, 1994
DocketNMCM 93 01208
StatusPublished
Cited by1 cases

This text of 42 M.J. 769 (United States v. Kelley) is published on Counsel Stack Legal Research, covering Navy-Marine Corps 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. Kelley, 42 M.J. 769, 1994 CCA LEXIS 107, 1994 WL 794748 (N.M. 1994).

Opinion

ORR, Senior Judge:

The primary issues in this case concern the Government’s use of three out-of-court statements by the alleged victim to prove acts of child sexual abuse. The first was to the child’s babysitter, which was admitted under the residual exception to the hearsay rule; the second was to a family counselor, which was admitted under the medical diagnosis and treatment exception; and, the third was to a school nurse, which was ostensibly admitted under the medical diagnosis and treatment exception.

The victim was the appellant’s 6 year-old daughter [CK], who was 7 at the time of trial. The offenses came to light when CK mentioned to two other children who lived in her neighborhood, one of them an older boy [AK], that she took showers with her daddy, and again the following day, when she spoke to AK while he was babysitting for her and seven or eight other children at a church nursery. At the nursery, CK appeared to be upset when she approached AK and whispered in his ear that “me and my daddy have sex” and pointed to her genital area, which she referred to as her “privates.” When AK told her she shouldn’t talk like that, CK persisted and told him that her daddy “makes white stuff come out on her” and “puts his privates in her privates.”

AK reported the incident to his mother, Mrs. Fowler, later that evening, and she brought the girl to the nurse at the elementary school where her own children and CK were enrolled. When Mrs. Fowler told the nurse that CK had something to tell her, CK [771]*771said: “My daddy does nasty things to me.” The school nurse then notified the state department of children services and the school board.

About 6 weeks later, CK was referred by state children’s services authorities to a state licensed child counselor, Rodney Mills. Mr. Mills saw CK on a regular basis thereafter, about an hour a week for the next 8 months until the date of trial, for treatment in connection with the allegations of sexual abuse. Twelve times during the course of these sessions, CK disclosed a variety of sexual activity between her and her father.

These disclosures led to the five offenses charged at this court-martial: rape, anal sodomy, indecent liberties, and two indecent acts. Contrary to his pleas, the appellant was convicted of indecent acts by touching CK’s vagina and crotch with his penis as a lesser included offense of the rape allegation, of indecent acts by touching CK’s buttocks and anus with his penis as a lesser included offense of the sodomy charge, indecent acts by fondling CK’s vagina with his hands, and indecent liberties with CK by causing her to fondle his penis, all in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. The appellant was acquitted of one allegation of indecent acts.

The military judge, sitting alone, sentenced the appellant to confinement for 10 years, forfeiture of $818.00 pay per month for 60 months, reduction to pay grade E-l, and a dishonorable discharge. The convening authority approved the sentence as adjudged. Before us, the appellant, through his appellate defense counsel, has raised the first five of eight assignments of error and, directly himself, the remaining three.1

[772]*772The prosecution’s evidence consisted of the testimony of six witnesses, including CK, and several items of real evidence which were introduced through the testimony of the Government’s first witness, an agent of the Naval Investigative Service [NIS]. The agent’s testimony was essentially limited to describing the results of a command-authorized search of the appellant’s quarters. The remaining four witnesses included Mr. Mills, the school nurse, AK, and Mrs. Fowler. Mrs. Fowler’s testimony is essentially limited to describing how it was that she took CK to see the school nurse and what she did or did not say to CK about the purpose of that visit. We shall address the testimony of Mr. Mills, the nurse, and AK in the sequence used in the appellant’s assignments of error.

I.

Even though CK was available as a witness, Mr. Mills was permitted to recount CK’s statements to him under Mil.R.Evid. 803(4), which allows the use of “[statements made for purposes of medical diagnosis or treatment and described medical history, or past or present symptoms, pain, or sensation, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.” The questions presented in the appellant’s first assignment of error is whether CK understood the purposes of her meetings with Mr. Mills and whether that understanding was sufficiently expressed to support the military judge’s decision to admit Mr. Mills’ testimony under this exception. See United States v. Clark, 35 M.J. 98, 105 (C.M.A.1992) (citing United States v. White, 25 M.J. 50 (C.M.A.1987)); United States v. Dean, 31 M.J. 196, 203 (C.M.A.1990), cert. denied, 499 U.S. 906, 111 S.Ct. 1106, 113 L.Ed.2d 215 (1991).

The U.S. Court of Military Appeals recently addressed these same questions by noting that:

[statements offered under Mil.R.Evid. 803(4) must satisfy a two-pronged test: “first the statements must be made for the purposes of ‘medical diagnosis or treatment’; and second, the patient must make the statement ‘with some expectation of receiving medical benefit for the medical diagnosis or treatment that is being sought.’ ”

United States v. Faciane, 40 M.J. 399, 403 (C.M.A.1994) (quoting United States v. Edens, 31 M.J. 267, 269 (C.M.A.1990)). The Court also stated:

A key factor in determining whether the second prong is met is “the state of mind or motive of the patient in giving the information ... and the expectation or perception of the patient that if he or she gives truthful information, it will help him or her to be healed.”

Id. (quoting Clark, 35 M.J. at 105).

Although CK was never asked during her testimony about her meetings with Mr. Mills, he stated that he was introduced to CK as “a talking doctor”2 with whom “she could talk about whatever she wanted” and he believed she understood that explanation. Record at 44. That impression was reenforced by Mr. Mills’ subsequent testimony that CK later asked him “to help her with taking out anger on others.” Record at 47. Given that the patient was a 6 year-old child and unlikely to have much intellectual appreciation of the role of mental health professionals, we find CK’s articulation of a desire for Mr. Mills to help her with an emotional problem to be convincing evidence of her understanding that she was seeing Mr. Mills as part of some treatment that was supposed to benefit her. Consequently, she would have had the necessary motivation to speak truthfully that supports this exception to the hearsay rule. See Clark; Edens; Dean; White; cf. United States v. Avila, 27 M.J. 62, 66 (C.M.A.1988) (holding that child’s statements to a psychologist who was introduced to the child only as “Kathy” and as “just another Mommy” were not admissible under medical diagnosis and treatment exception).

[773]*773Even though Mr.

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Related

United States v. Kelley
45 M.J. 275 (Court of Appeals for the Armed Forces, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
42 M.J. 769, 1994 CCA LEXIS 107, 1994 WL 794748, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-kelley-nmcca-1994.