United States v. King

16 M.J. 990, 1983 CMR LEXIS 785

• Court: United States Court of Military Appeals
• Decided: August 31, 1983
• Docket: CM 442194
• Status: Published

Opinions

OPINION OF THE COURT

BADAMI, Judge:

The appellant was arraigned on charges alleging sodomy, and conduct unbecoming an officer and a gentleman (four specifications).¹ In unrelated incidents involving his premarital peccadilloes with his 15-year-old wife-to-be, Alice Mae Harrington, appellant was charged with sodomy of a child under 16 years of age, carnal knowledge, conduct unbecoming an officer and a gentleman (three specifications), and obstruction of justice (two specifications).² He pleaded not guilty to the charges and specifications and a trial on the merits ensued. The members of his general court-martial found him guilty as charged except he was acquitted of one of the obstruction of justice charges. Appellant was sentenced to dismissal from the service, confinement at hard labor for 14 years, and total forfeitures. We reverse in part.

This appeal concerns two evidentiary issues relating to each series of incidents. The first issue concerns the admissibility of three sworn statements by the 15-year-old. Contrary to the military judge’s ruling, we hold these statements to be inadmissible under the residual hearsay rule, Mil.R.Evid. 803(24) as there was an inadequate showing that they had the equivalent circumstantial guarantee of trustworthiness. The second issue concerns the admissibility of testimony concerning other sexual acts by the appellant. We hold such evidence was admissible as relevant and sufficiently similar to the acts charged under Mil.R.Evid. 401 — 404.

I

The three sworn statements (Prosecution Exhibits 3, 4 and 5) were taken from appellant’s then 15-year-old wife-to-be, Alice Mae Harrington. By the time of trial Miss Harrington and appellant were married. The statements were proffered as part of the government case through the testimony of two special agents of the United States Army Criminal Investigation Command. The statements detail the allegations of sodomy of a child under 16 years of age, and carnal knowledge, and constitute the sole evidence in the government’s case on these specifications. At trial Alice Mae Harrington King acknowledged that she made the statements to the government agents but declared that she did so after her father impregnated her so to avoid blaming him. Alice thought “it would be a good idea” to “pin” the baby on Frank King so she could marry him and get out of a difficult family situation. Alice testified that she had been sexually abused since the age of five, that her father also physically abused her by striking her with his fists, that she previously reported the abuse to the military authorities to no avail, and that she had on one occasion attempted suicide by a drug overdose. The government did not rebut these assertions. Alice denied any truth to the allegations in the statements that she and Captain King had engaged in sexual intercourse. The military judge admitted the statements made out-of-court both to permit impeachment of Alice’s testimony at trial and substantively under Military Rule of Evidence 803(24).³ Appellant contends that this ruling was error. We agree holding that those statements do not contain the circumstantial guarantees of trustworthiness required by Mil.R.Evid. 803(24).

In United States v. Whalen, 15 M.J. 872 (A.C.M.R.1983), we recognized that Mil.R. Evid. 803(24) is a viable basis for the admission of extrajudicial statements as substantive evidence. That rule prescribes a number of conditions which must be satisfied before evidence is admitted.⁴ Both in their briefs and in oral argument, appellant’s counsel and counsel for the government make no point that the conditions of the rule were not satisfied except in the requirement that the evidence have “equivalent circumstantial guarantees of trustworthiness” found in other exceptions to the hearsay rule. It is that condition which concerns us.

To satisfy that condition the government points to the following facts. First, Mrs. King was available at trial for cross-examination by the party against whom the statements were offered. As Judge Learned Hand observed in DiCarlo v. United States, 6 F.2d 364, 367-68 (2d Cir.1925), when the fact-finders decide the truth, it is often not what the witness says now but what he said before. As the witness is under oath, the court members could evaluate the demeanor of the witness at trial and determine whether the prior statements or the testimony at trial is more believable. Second, the statements were made earlier in time than her in-court recantation and all three statements were similar in detail. Finally, the agents present at the taking of the statements testified to the declarant’s then general demeanor and her willingness to make the statements.

While these are important considerations, we remain unpersuaded that they are sufficient to show that the statements have equivalent circumstantial guarantees of trustworthiness. In analyzing the trustworthiness of a statement, we must examine the circumstance in which the declarant made the statement and the incentive he or she had to speak truthfully or falsely. See Robinson v. Shapiro, 646 F.2d 734 (2d Cir. 1981); United States v. Bailey, 581 F.2d 341 (3d Cir.1978).⁵ Although the statements were made earlier in time, they were not made early enough so that physical tests could independently corroborate their accuracy. The fact that the statements were made to government agents, rather than within the immediate family or to a close acquaintance, is if anything a neutral fact. Unlike the hearsay exception dealing with an excited utterance, statements made to police officers are often calculated to convince rather than to convey an emotional reaction. Such statements are obviously more suspect and must be scrutinized carefully.

In the present case we find that the statements were not shown to be trustworthy. The declarant had a strong motive to fabricate at the time the statements were given to the government agents. As we noted earlier, Alice testified that she made the statements in order to clear her father of any blame that he had impregnated her. The claim against her father arose over a year prior to trial and at a time that she did not know the appellant. It cannot be dismissed as recent fabrication. The military judge was faced with a difficult dilemma: Is she lying at trial or when she made the statements? Obviously her marriage to the appellant provided a strong motive to testify falsely at trial, but an equally strong case can be made that her fear of her father motivated her to swear falsely when making the statements to the government agents.

The statements lack the guarantees of trustworthiness found in other long-recognized exceptions to the general rule of exclusion of hearsay evidence. The only possible exception is the similarity to “prior testimony” which may be admitted under Rule 801(d)(1)(A), except for the fact that the statements were not made at a “trial, hearing or similar proceeding.” United States v. Luke, 13 M.J. 958 (A.F.C.M.R.1982). The circumstances of a police house interrogation cannot by any stretch of the imagination be compared to the solemnity of a trial where there can be no doubt of the accuracy of the words spoken and where the accused has the present opportunity to cross-examine the witness on the accuracy and truth of the matter recorded. Lacking the elements of special reliability found in the rule of “prior testimony,” it cannot be said that these statements possess an especially high degree of trustworthiness.

In United States v. Whalen, supra, the existence of corroborating physical evidence allowed this Court to independently determine that a crime had occurred and that the accused was the perpetrator. While corroboration is not an absolute requirement, it is a factor to be examined. The federal courts have recognized that the presence or absence of corroborating evidence may be a critical factor.⁶ See United States v. Hinkson, 632 F.2d 382 (4th Cir.1980); United States v. Bailey, 581 F.2d 341 (3d Cir.1978); United States v. Ward, 552 F.2d 1080 (5th Cir.1977); United States v. Carlson, 547 F.2d 1346 (8th Cir.1976).⁷ Here there is a paucity of physical or testimonial evidence showing that the statements represented the truth. While there is evidence that the appellant and Alice were often seen in each others company and that appellant had given Alice an engagement ring, evidence of a surreptitious romance neither proves nor disproves that their relationship necessarily included sexual intercourse or sodomy. We conclude that the assertions in the statements and the circumstances in which the statements were given do not provide for “equivalent circumstantial guarantees of trustworthiness” to permit their admission. As these statements were the sole evidence supporting those allegations involving Alice Mae Harrington, we must set aside and dismiss Additional Charges I, II, and III and their specifications.

II

The remaining evidentiary question concerns appellant’s opprobrious conduct as a clinical psychologist. The victims involved were three low-ranking enlisted female servicemembers and, in one case, a wife. All sought psychological counseling from appellant. With each patient the appellant used what he called “relaxation therapy.” The appellant would first touch his patients on their arms, shoulders, and stomach. While there were variations with each patient, eventually, the appellant would place his hands on their pubic areas and breasts.

One patient, Mrs. H. was lying on the couch during one session, when appellant slid his hands between her thighs covering her vaginal area and manipulated it with his fingers. During another session he grabbed her breast but then excused himself, offering the darkness of the office as an excuse. With Seaman Deborah J., appellant told her that he would not touch any private areas, but did in fact touch the inside of her thigh on the pubic area. Airman First Class Lisa B. was also a victim of appellant’s relaxation technique. In one session while she was lying down, appellant unbuttoned her blouse and moved his hand under her bra. Appellant then unzipped her pants and pulled them and her underwear down and placed his fingers in her vagina. A knock at the door interrupted this “therapy.” Airman First Class Susan F. sought counselling because she was dissatisfied with the military and her job prospects. Appellant utilized his relaxation technique to touch her breasts and pelvis through loosened clothing. Appellant later invited her to his BOQ room ostensibly to do some typing for him. She agreed. Once she was in the BOQ room, he gave her wine and cheese. They conversed and the appellant asked her to make love. She refused. He became upset and began talking of suicide. The appellant sat down on a couch and Susan F. sat on the couch next to him. The accused rubbed her back and kissed her. He took her hand and placed it on his erect penis; she rubbed his penis. She licked his penis and took it into her mouth. The appellant ejaculated. The appellant did not force Susan F. to do any of these actions. In each case appellant’s apparent motive and intent was his own sexual gratification.

At trial the military judge allowed, over timely defense objection, the testimony of Private First Class Crescent T. and Private First Class Brenda W., two young, low-ranking enlisted members. Crescent T. testified that she was in training as a patient-care specialist at Fort Ord when she met and began socializing with appellant. At appellant’s suggestion, Crescent went to appellant’s room on or about 1 August 1981 for a hypnosis treatment intending to quit smoking. Once inside the room, the two drank a beer and talked about their problems. At one point in their conversation, Crescent became upset and appellant suggested a massage to relax her. Because she had previous massages from psychologists before, Crescent agreed. She went to the bathroom and disrobed and when she returned found appellant dressed in a robe. Although this seemed wrong, she concluded that appellant knew what he was doing because he was an officer and a psychologist. Appellant massaged her whole body front and back and then proceeded to have sexual intercourse with her.

Brenda W. met appellant during duty hours while she was working as a medic. She also saw him on social occasions and went to his BOQ room to visit him twice. In early 1981 she visited appellant in his BOQ room just to talk because he was someone in whom she could confide. Once inside the BOQ room, appellant offered to give her a back rub and she consented. Captain King asked her to undo her trousers so he could massage her further down on her body and also asked her to roll over so he could massage her front. She declined and the massage was terminated. The two of them watched television and appellant began talking about sex and about how he would like to make her happy even if he" got nothing out of it. Brenda did not take him up on his offer and continued watching television. A few minutes later she noticed appellant was masturbating. She asked him to stop, and he replied that “he had to get satisfaction someway.” Brenda asked appellant to take her home and he did so.

Mil.R.Evid. 401 contains a very expansive definition of relevant evidence. In addition, Rule 402 provides that all relevant evidence is admissible. Rule 404 establishes a special rule with regards to evidence of uncharged crimes or acts. Such evidence must be offered for some purpose other than to prove the bad character of a person or to show that he acted in a like manner. Permissible purposes include proof of motive, intent, opportunity, preparation, plan, knowledge, identity or absence of mistake or accident. In order for the evidence of uncharged misconduct to be admissible, there must be a nexus in time, place and circumstance between the offense charged and the uncharged misconduct; the evidence of uncharged misconduct must be plain, clear and conclusive; and its probative value must outweigh its potential prejudicial impact. United States v. Hancock, 14 M.J. 998 (A.C.M.R.1982).

Applying these rules to the facts of this case, we conclude that the military judge was within his discretion in admitting the challenged testimony over defense objection. At issue was whether the appellant’s motive and intent was to medically treat or to gratify his own sexual desires. We find that the encounters with Crescent T. and Brenda W., both young low-ranking enlisted women who sought “counselling,” albeit during off-duty hours, were relevant to establish appellant’s motive and intent and establish a familiar pattern where appellant would prey on and sexually exploit young women using his profession, his rank, and sometimes his military quarters to accomplish this end. United States v. Brown, 8 M.J. 501 (A.F.C.M.R.1979), pet. denied, 8 M.J. 234 (C.M.A.1980). Additionally, this evidence contained the required nexus in time, place, and circumstances. Although relevant evidence may be excluded in certain cases under Mil.R.Evid. 403, the military judge did not abuse his discretion in declining to do so.

The remaining assignments of error are without merit and no further discussion is necessary.

The findings of guilty of Additional Charges I, II, III and their specifications are set aside and the charges dismissed. The remaining findings of guilty are affirmed. Reassessing the sentence, the Court affirms only so much of the sentence as provides for dismissal, confinement at hard labor for 10 years, and total forfeitures.

1 . Violations of Articles 125 and 133, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 925 and 933 (1976).

2 . Violations of Articles 125, 120, 133, and 134, UCMJ, 10 U.S.C. §§ 925, 920, 933, and 934 (1976).

3 . As in this case, a military judge must make special findings on the factual matters as they relate to the three conditions listed in the Rule. However, where trial is before a court with members, these special findings should be addressed in an Article 39(a), UCMJ, session to avoid the danger that the court members may be unduly influenced in their own factual determination of the weight to be accorded the evidence.

4 . Military Rule of Evidence 803. Hearsay Exceptions; Availability of Declarant Immaterial. The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(24) Other exceptions. — A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.

5 . The intent of the drafters of Rule 803(24) make it clear that the question of truthworthiness is to be approached on a case-by-case analysis. We caution that care should be used when the possibility that a criminal accused may be convicted solely on the basis of an out-of-court statement. Such practice may create pressure on police to secure out-of-court statements of witnesses, facilitating the manufacture or shading of evidence.

Obviously, questions concerning the sufficiency of the evidence will be raised in cases where the sole evidence against an accused consists of hearsay declarations. We do not reach this issue here.

6 . The proponent of the statement should consider furnishing the military judge with a basis to determine whether there exists physical or testimonial evidence to support either the fact that the declarant made the statement or that it represents the truth.

7 . In Chambers v. Mississippi, 410 U.S. 284, 300, 93 S.Ct. 1038, 1048, 35 L.Ed.2d 297 (1972), the Supreme Court held that the trial judge erred in excluding third party confessions to murder where the confessions were made to close acquaintances shortly after the crime and the confessions were corroborated by other evidence and against the penal interest of the declarant.