United States v. King

35 M.J. 337, 1992 CMA LEXIS 181, 1992 WL 235897
United States Court of Military Appeals·Decided September 25, 1992·No. No. 66,531; CM 9000228·Published·Cited by 9 cases

Opinions

Opinion of the Court

COX, Judge:

A general court-martial at Fort Hood, Texas, convicted appellant, contrary to his pleas, of two specifications of committing indecent acts on infants, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. Specifically, he was found to have committed the acts on his own 2-year-old daughter (J) and another 5-year-old girl (HM) by “encouraging and allowing” them “to kiss and lick the said SGT Fletcher L. King’s penis and masturbating in the presence of ... [the girls] with intent to gratify the sexual desires of the said SGT Fletcher L. King.”1

We granted review of two issues relating to the testimony of an expert witness called by the Government.2 The first issue questions whether, during the merits portion of the trial, the expert improperly vouched for the credibility of the victim. The second issue questions whether the witness exceeded the scope of her expertise when testifying during the sentencing portion of the trial. We conclude that, under the circumstances of the case, appellant was not prejudiced by the expert’s testimony on findings, Art. 59(a), UCMJ, 10 USC § 859(a). However, as to sentencing, we deem her testimony so irrelevant and potentially prejudicial that we set aside appellant’s punishment.

I

The prosecution’s case on the merits consisted essentially of appellant’s pretrial confession, the testimony of HM (the 5-year-old), the testimony of Mrs. M (HM’s mother), and the testimony of the expert.

Mrs. M testified that, one Friday afternoon, she received a surprise telephone call at work from her regular babysitter. The sitter informed Mrs. M that she could not sit for HM the next day. Mrs. M, whose husband was in Korea on assignment, had to work all day Saturday. Being upset about the sudden cancellation, Mrs. M began discussing the problem with her coworkers. Mrs. King, appellant’s wife, worked with Mrs. M; she volunteered appellant as a babysitter. He was to be home the next day taking care of their children, JK and PK. Mrs. M gratefully accepted.

The next day after work, Mrs. M drove to appellant’s off-post house to pick up HM. Though Mrs. M had never socialized with the Kings, appellant was suddenly very insistent that the three of them immediately hire a babysitter for the children and “go out” for the evening. Taken [339]*339aback by this unexpected offer and tired after a day’s work, Mrs. M declined. On the way home with HM, as Mrs. M described it:

[W]e were only about five minutes from my house and we hadn’t—we hadn’t been talking, it was quiet in the car, except the radio was playing, and she leaned— crossed her hands over the seat, she was sitting in the back seat, behind me, leaned over the seat, and says to me, he made us—he made us do it, momma, he make us lick down there, and pointed between my legs.

Mrs. M was stunned and “started to shake.” She became “a nervous wreck” and “didn’t know what to do.” She managed to get home, attempting to remain calm for HM’s sake. When Mrs. M tried to get more information out of HM, “she just started crying and crawled up on my lap and said that she didn’t want to talk about it.”

The next day was Sunday and Mrs. M did not have to work. On Monday, she was scheduled to work but did not go because she “was having a hard time handling the whole situation” and she “didn’t know how ... [she] could go to work and face Mrs. King.” She notified her boss of “the situation”; the boss understood and gave her time off. To Mrs. M’s surprise, she then received a call from appellant’s wife, who wanted to know “what was wrong.” Mrs. King “was extremely insistent on the phone, wanting to know why ... [Mrs. M] was not at work.” Mrs. King, who had never called Mrs. M before, was “insistent, to the point that it didn’t seem like a friendly, can I bring you something, are you ill[?]” Reluctantly, Mrs. M told Mrs. King that something had happened between appellant and HM the day before and that she did not want to talk about it over the phone.

To Mrs. M’s amazement, Mrs. King, without skipping a beat, “had a ready excuse to explain all of this.” According to Mrs. King, appellant had forewarned her that he “was taking a bath and my daughter walked in and she saw him in the bathtub.” Therefore, he cautioned, “if [HM] started saying some things, that was why ____” (Emphasis added.) Though she had been at work that day like Mrs. M, Mrs. King kept trying to convince Mrs. M that appellant’s version was true. Mrs. M was struck by the fact “that they had already thought that [HM] was going to come home and tell me ____”

Immediately after Mrs. King’s call, appellant called. He said to Mrs. M, “[W]hat’s going on, Chris [Mrs. King] just called me and she’s crying and very upset.” Mrs. M. “told him, you know exactly what’s going on and what the problem is.” Mrs. M did not “remember exactly what ... [she] said after that because it was very heated, ... [she] was very upset to even hear him—hear his voice.” Appellant, however, “was extremely calm, he never raised his voice.” According to Mrs. M, “he says to me, well, if you—if there were problems and [HM] was telling you things, why didn’t you just call me and ask me____” Whereupon Mrs. M told appellant what she thought of him in no uncertain terms, and she “slammed down the phone.”

Presumably because the incident occurred off base, appellant was initially arrested by Detective Melissa Wetzel of the Harker Heights, Texas, police department. She advised appellant of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which he waived. Agreeing to talk to Detective Wetzel, he proceeded to make what she considered to be “the easiest” confession she had taken in 5 years as a police officer.3

In part, in the sworn, written statement, appellant recites:

[JK] got on the edge of the couch. She was facing me, but her knees were on the edge of the couch. I raised up and told her to get down. I pulled her down, [340]*340and my penis was exposed. I got up and went and got a sheet. I put it on the couch and laid on the couch____ [HM] was in the den watching cartoons. Then, she got onto the couch and got under the covers with me. Then I don’t know what happened or why. She wanted to tickle me. I got an erection. I don’t know why. When she saw it, she grabbed it. She saw my belly button and she said “This is your belly button.” And I said “Yeah.” Then she started tickling my face. Then I said “Why don’t you kiss it.” I asked [HM] to kiss my penis. She was sitting on top of me. I was laying down on my back. Her right leg was across my waist. She leaned forward and kissed my penis. She kissed it about five times. She stopped and was just holding it with her hand. I don’t know which hand she was holding it with. Then [JK] came into the den. [HM] told [JK) to lick my penis. [JK] came over to me and started licking my penis. [HM] was still sitting on me. [HM] had tried to change out of the clothes she wore when she first arrived. Because she got catsup on her top. Before we started playing, and before I got an erection she had taken off her clothes in an attempt to change. During the time that she kissed and held my penis, she was wearing only her underwear. I think [JK] was wearing some shorts and a top. It was after [JK] licked my penis that I began to masturbate. I ejaculated while I was laying down.

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United States v. King, 35 M.J. 337, 1992 CMA LEXIS 181, 1992 WL 235897 (cma 1992).

35 M.J. 337 (United States v. King) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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