United States v. Knox

46 M.J. 688, 1997 CCA LEXIS 134, 1997 WL 214810
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedMarch 31, 1997
DocketNMCM 95 00358
StatusPublished
Cited by2 cases

This text of 46 M.J. 688 (United States v. Knox) 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. Knox, 46 M.J. 688, 1997 CCA LEXIS 134, 1997 WL 214810 (N.M. 1997).

Opinions

McLAUGHLIN, Senior Judge:

The appellant was tried at a general court-martial composed of members on various dates from 10 December 1992 to 25 March 1993. Contrary to his pleas, he was convicted of one specification of rape on divers occasions and one specification of forcible sodomy with a child under the age of 16 years on divers occasions, in violation of Arti[690]*690cles 120 and 125, Uniform Code of Military Justice, 10 U.S.C. §§ 920, 925 (1994) [hereinafter UCMJ], respectively. The appellant was sentenced to confinement for 30 years, forfeiture of all pay and allowances, reduction to pay grade E-l, and a dishonorable discharge. The convening authority approved the sentence as adjudged and, except for the dishonorable discharge, ordered it executed. The appellant has assigned nine errors, attached as Appendix I. We find merit with a number of the assigned errors, and agree that these errors materially prejudice the substantial rights of the appellant. Accordingly, we shall set aside the findings. Art. 59(a), UCMJ, 10 U.S.C. § 859(a). Because we authorize a rehearing, we need comment on Assignments of Error I through III only. Art. 66(d), UCMJ, 10 U.S.C. § 866(d).

The appellant and his wife are the natural parents of the two victims named in the specifications. The appellant was convicted of multiple rapes of his daughter, CK, born on 30 August 1985, and the forcible sodomy of his son, TK, born on 30 August 1984. The 6-month time period of the allegations as set forth in the specifications, i.e., July 1990 to December 1990, coincides with the time the family lived in “the blue house” (as referred to by the children) in Havelock, North Carolina.

The children remember their stay in the blue house, but, understandably, do not know the dates. While they were living in the blue house, Mrs. Knox cared for the children by day and worked outside the home in the evening. Record at 23, 334-35. The appellant returned from his daytime military duties and cared for the children while his. wife was at work. Id. The appellant never lived in the blue house after December 1990.

After the appellant’s return in April 1991 from his deployment to Saudi Arabia in support of Operations Desert Shield and Desert Storm, he was served with divorce papers and moved into the barracks aboard Camp Lejeune, North Carolina. According to Mrs. Knox, prior to the appellant’s December 1990 deployment, the marriage was deteriorating and she and the appellant slept apart. The appellant testified that the divorce was acrimonious, his wife was uncooperative in allowing him visitation of the children, and he had countersued for custody of the children. Record at 470-72. Mrs. Knox testified that the appellant was unreliable in his announced visitation and sometimes wouldn’t show up. When these visits did occur between April 1991 and December 1991, they lasted for a few hours and the children were never alone with the appellant. Record at 25.

Sometime in January 1992, Mrs. Knox was preparing CK and TK for a visit with the appellant. For unstated reasons, the entire family used a friend’s house for the visits. As CK was being dressed for the visit, Mrs. Knox received a telephone request for transportation from another friend. CK overheard this telephone conversation, and learned that her mother would not accompany her at the outset of the visit with the appellant. Record at 28. CK was told that the friend, Patricia, who lived at the house where the visit would occur, would be present. Id. According to Mrs. Knox’s testimony, it was then that CK told her mother that the appellant had sexually abused her in the blue house. Id. This led to an investigation that ultimately resulted in TK’s allegations of sexual abuse and the current charges.

I. EXPERT OPINION REGARDING BELIEVABILITY OF ALLEGED VICTIM

The first assignment of error arises out of the testimony of the social worker who testified for the Government. When CK first made the report to her mother about sexual abuse, Mrs. Knox took her to a Navy hospital •within days. Record at 348. The medical officer referred Mrs. Knox and the children to Ms. Skulstad, a social worker in private practice. In fact, it was Ms. Skulstad who later reported the abuse to police authorities. Record at 83. Upon taking the stand, and after establishing her bona fides, the social worker described the beginnings and course of her therapy with Mrs. Knox and the two children. Record at 389-96. Included in her testimony was a description of some drawings made by the children. Prosecution Exhibits 1 — 8. They were offered as the children’s depictions of the abusive conduct of their father. At one point the following col[691]*691loquy occurred between the trial counsel and the expert:

Q: Did you at all try to interpret any of
these pictures yourself?
A: I consider them an expression of what the child is telling me, I believe the child.

Record at 396 (emphasis added). The defense counsel immediately objected. The military judge warned the trial counsel that “I’m close to granting a mistrial in this case,” and sustained the objection. Id. The military judge also commented that “I’m very concerned about the witness, particularly in a child abuse case, vouching for the credibility of a witness.” Record at 398. The trial defense counsel argued that a mistrial was the only valid remedy for the impermissible testimony. Id. The military judge denied the mistrial request, but did give a cautionary instruction to the members that they should disregard the expert’s opinion regarding the believability of the children. Record at 403. Each member indicated that the instruction was understood and would be followed. Record at 404.

We recognize, as did the military judge, that a mistrial is a “drastic remedy and is reserved for only those situations where the military judge must intervene to prevent a miscarriage of justice.” United States v. Garces, 32 M.J. 345, 349 (C.M.A. 1991). This ease was a fully contested battle of credibility. The children testified. The appellant testified and denied committing the abuse. Medical evidence was inconclusive regarding CK’s physical condition and there was no medical evidence regarding TK. The physician testified that the physical examination of CK “was equivocal and does not confirm or deny [sexual activity].” Record at 446-47. There was little, if any, reliable corroborating evidence.

In United States v. Marne, 43 M.J. 35 (1995), another child sexual-abuse case, the expert witness erroneously testified as to the credibility of a victim and the Court of Appeals found it was harmless error. We cannot hold in the appellant’s case that, when we consider the social worker’s testimony in context with the other evidence in the record, the error is harmless beyond a reasonable doubt. In reaching this conclusion, we note, for example, that TK was a very poor witness, actually testifying more as to what his drawings represent the appellant doing in the drawings than to what the appellant actually is alleged to have done to him. Record at 303-10.

In this regard, the appellant’s case is more similar to United States v. Harrison,

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Cite This Page — Counsel Stack

Bluebook (online)
46 M.J. 688, 1997 CCA LEXIS 134, 1997 WL 214810, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-knox-nmcca-1997.