United States v. King

32 M.J. 709, 1991 CMR LEXIS 401, 1991 WL 33743
U.S. Army Court of Military Review·Decided March 11, 1991·No. ACMR 9000228·Published·Cited by 2 cases

Opinion

OPINION OF THE COURT

GRAVELLE, Judge:

Contrary to his pleas, appellant was convicted by a general court-martial consisting of officer and enlisted members of two specifications of indecent acts with a child under sixteen, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934 (1982). The convening authority approved a sentence of a dishonorable discharge, confinement for four years and forfeiture of all pay.

Appellant alleges three errors made by the military judge: (1) permitting an expert witness to testify concerning the credibility of the child victim; (2) permitting an expert witness to testify involving matters beyond her expertise; and, (3) denying a motion for mistrial after learning that trial counsel had improperly obtained confidential information from a defense representative. We hold that the military judge did not err.

I. Facts

On the merits and again during presentencing, the government called Dr. Sherrouse as an expert witness in child abuse. She testified that she owned the Montessori Children’s House in the local community, had testified extensively as an expert in child abuse, had a doctorate in education with emphasis on learning disabilities, and had two masters degrees in education and school psychology. She specialized in diagnostic activities for children. On the strength of these credentials, she was qualified as an expert without defense objection.

On the merits, Dr. Sherrouse testified, inter alia:

Q: Ma’am, what does the — literature in your profession suggest about whether children of the age five are capable of fabricating any or all of this?
A: Basically, the literature—
CDC: I object to that, Your Honor. Opinion as to whether or not the witness is being truthful, that’s a question for the jury.
TC: Your honor, we’re speaking in general terms of whether the witness— whether the literature suggests a propensity for general witnesses making this up and this — in this age group of five.
MJ: The objection is overruled. You may proceed.
Q: Ma’am, again, do five year olds make this up?
A: No, they do not. They lack the sophistication to describe, anatomically correct [sic], the parts of the body; they have had no experience, we hope, with issues such as ejaculation; they would not know about the issues surrounding sexual activity unless they had been involved in a concrete way. So they don’t have abstract ability that it would take to make up a story and then also make up events to match it. If I can use an example, a child could not say, he hurted [sic] my tail, which is a real common outcry with a child, and then, four hour [sic] later or six hours later, scream when you put them in the bathtub or cry when they use the bathroom because it burns when they urinate. They don’t have the ability to match those two things and say, a ha, I’ve got to pull this story together. See, they just can’t do that.
Q: At what age do children normally form that opinion — or, that ability?
A: You — again, the literature would say you’d have to have at least a twelve year old intellectual level to begin to abstract out and think through and pull a story together that was that fanciful and understand that you’ve got to have physical characteristics that match activities. It would just — you could have a teenager lie about this because they were angry about curfews or — hated the stepfather, but not a five year old.
TC: Nothing further, Your Honor.

During presentencing, Dr. Sherrouse testified that the appellant was a regressive pedophile and described the typical pattern of conduct for such an individual. She testified that regressive pedophiles were highly likely to continue to abuse children. [712]*712The trial defense counsel did not object to this testimony. Instead, he cross-examined Dr. Sherrouse on her qualifications to give such an opinion and her rationale for the opinion. After Dr. Sherrouse completed her testimony, the defense counsel, claiming surprise, asked for a continuance to have his client “... examined by a psychiatrist, somebody who knows what they are talking about, in view of this supposed diagnosis by this witness.” The trial counsel agreed to arrange for a psychiatric examination to explore the possibility that the appellant was a pedophile. The trial counsel further agreed that the psychiatrist who performed the examination would be part of the defense team. The military judge concluded that the testimony of Dr. Sherrouse was extremely damaging to the defense, and granted a continuance. When no military psychiatrist was readily available, the government secured at its expense the services of Dr. Campbell, a civilian psychologist whose qualifications were acceptable to the defense.

When the trial resumed nine days later, Dr. Campbell strongly disputed Dr. Sherrouse’s opinion that the appellant was a pedophile. Dr. Campbell also testified that he had called the trial counsel after the first interview with the appellant and briefly discussed the contents of that interview. When the trial counsel learned that Dr. Campbell was unaware of the appellant’s confession, he delivered to the doctor a copy of the confession, the police report and the victim’s statement. It was apparent from Dr. Campbell’s testimony that the doctor was unclear as to his exact role in the case. Dr. Campbell further testified that he would have eventually asked for background material (such as that provided by the trial counsel) in order to arrive at an opinion about the appellant’s psychological makeup.

At the conclusion of Dr. Campbell’s testimony, the defense counsel asked for a mistrial because of the trial counsel’s communication with a member of the defense team and for his interference with a privileged relationship. After arguments on the motion, the military judge ruled:

The request for a mistrial is denied. However, if you feel that there has [sic] been acts or impropriety in this case, I would certainly urge you to submit, perhaps, some documentation, it could be a statement from Dr. Campbell, in support of it, and then, certainly [trial counsel] should have an opportunity to respond to that. And if there is considerable substance to it, we can take care of the matter in a post-trial matter [sic] and then it’ll all be attached to the record as appellate exhibits.1

II. Analysis

A. The Expert’s Testimony

Child abuse experts are not permitted to opine as to the credibility or believability of victims or other witnesses. United States v. Arruza, 26 M.J. 234 (C.M.A.), reh’g. denied, 27 M.J. 321 (C.M.A.1988), cert. denied, 489 U.S. 1011, 109 S.Ct. 1120, 103 L.Ed.2d 183 (1989); United States v. Petersen, 24 M.J. 283 (C.M.A.1987); United States v. Deland, 22 M.J. 70 (C.M.A.), cert. denied, 479 U.S. 856, 107 S.Ct. 196, 93 L.Ed.2d 128 (1986); United States v. Cameron, 21 M.J. 59 (C.M.A.1985).

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United States v. King, 32 M.J. 709, 1991 CMR LEXIS 401, 1991 WL 33743 (usarmymilrev 1991).

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