United States v. Longstreath

45 M.J. 366, 1996 CAAF LEXIS 112
CourtCourt of Appeals for the Armed Forces
DecidedSeptember 30, 1996
DocketNo. 95-1120; Crim.App. No. 91-0744
StatusPublished
Cited by15 cases

This text of 45 M.J. 366 (United States v. Longstreath) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Longstreath, 45 M.J. 366, 1996 CAAF LEXIS 112 (Ark. 1996).

Opinion

Opinion of the Court

GIERKE, Judge:

Appellant was charged with rape, carnal knowledge, sodomy, committing indecent acts with AL, his stepdaughter (10 specifications), committing indecent acts with CL, his natural daughter, and committing indecent acts with SL, also his natural daughter, in violation of Articles 120, 125, and 134, Uniform Code of Military Justice, 10 USC §§ 920, 925, and 934, respectively. The military judge granted a defense motion for findings of not guilty of the rape, carnal knowledge, sodomy, and nine of the specifications of committing indecent acts with AL.1 He also granted a defense motion to dismiss the specification of committing indecent acts with CL, on the ground that prosecution was barred by the statute of limitations. Sitting as a general court-martial at Naval Station, San Diego, California, the military judge convicted appellant, contrary to his pleas, of committing indecent acts with AL (2 specifications) and committing indecent acts with SL. The adjudged and approved sentence provides for a dishonorable discharge, confinement for 6 years, total forfeitures, and reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed the findings and sentence. 42 MJ 806 (1995).

Our Court granted review of the following issues:

I
WHETHER APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESSES AGAINST HIM WHEN THE CHILD WITNESSES WERE PERMITTED, AT TRIAL, TO TESTIFY AGAINST APPELLANT VIA ONE-WAY CLOSED CIRCUIT TELEVISION.
II
WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT WHEN IT FOUND THAT THE MILITARY JUDGE DID NOT ABUSE HIS DISCRETION WHEN HE FAILED TO STRIKE THE ENTIRE TESTIMONY OF [AL] WHEN SHE PREMATURELY TERMINATED CROSS-EXAMINATION BY REFUSING TO ANSWER FURTHER QUESTIONS, EVEN THOUGH SHE WAS TESTIFYING VIA ONE-WAY CLOSED CIRCUIT TELEVISION.

Factual Background

This was appellant’s second general court-martial for sexually abusing his children. In July 1987 a general court-martial convicted him of carnal knowledge, sodomy, and taking [368]*368indecent liberties with AL. The court-martial sentenced him to confinement for 90 days, reduction to pay grade E-5, and a reprimand.

Appellant was released from confinement in October 1987 and transferred to San Diego, California. In April 1988, AL, CL, and SL were placed in the custody of the county but permitted to reside with their mother if appellant removed himself from the family home. Appellant was prohibited from any contact with the children other than supervised visits. 42 MJ at 811.

In November 1988 AL' entered a psychiatric hospital. After 2 months, she transferred to a residential treatment center where she told her counselor that appellant had returned to the family home, in violation of the court order, and molested her. Appellant’s second court-martial, the subject of this appeal, resulted from AL’s report and the subsequent investigation. 42 MJ at 811.

Appellant’s second court-martial began in December 1990. At that time, AL was 16 years old, CL was 10, and SL was 2. 42 MJ at 811. The indecent acts with AL alleged in specification 1 of Charge III were alleged to have occurred 2% years earlier, during the summer of 1988. All other offenses were alleged to have occurred at divers times between October 1987 and April 1989.

SL did not testify. CL testified via one-way closed-circuit television. AL was called to the witness stand in open court, but after three sessions where she was unresponsive and emotional, the military judge permitted her also to testify via closed-circuit television.

In support of its request that CL testify through closed-circuit television, the Government presented the testimony of Dr. Miccio-Fonseea, a clinical psychologist who had treated CL since July 1989. Dr. Miccio-Fonseca testified that CL is “very guarded, very defensive, somewhat paranoid.” She stated that testifying “would be very, very dramatic for her, and I think we’d see serious psychological regressions for [CL]. And I think that the gains we’ve made psychologically would probably be aborted with her coming in here and testifying.” Dr. Miccio-Fonseca testified that CL’s symptoms “are still manifested in terms of the anuresis, the bed-wetting; the encopresis which is defecating in pants; the nightmares, the sleeping disturbances, the eating disturbances, the inability to concentrate and pay attention, the daydreaming that she manifests.” Dr. Miecio-Fonseca further testified that she did not think CL would be able to speak in the courtroom in appellant’s presence because she is “terrified” of him.

On cross-examination, Dr. Miecio-Fonseca was asked if she was “completely sure” that CL would be damaged by testifying in appellant’s presence. She responded, “Oh, I think I’d probably make a sizeable bet on it.”

The military judge asked Dr. Miccio-Fonseca to describe the psychological consequences of CL testifying in the presence of appellant. She responded, “I think that she would probably have more nightmares, become more anuretic, more encopretic, have more difficulty in concentrating and attending to stimuli. I think that she’d become more emotionally constricted and isolated.”

The military judge granted the Government’s motion to permit CL to testify by one-way closed-circuit television out of appellant’s presence. He explained:

I consider the age of the witnesses to be a very significant factor in my decision here. In the case of the 10 year old, [CL], I find that based on the evidence the government has convinced me that she would suffer serious psychological consequences as a result of having to testify in the presence of Petty Officer Longstreath. That, of course, is based on the testimony of Dr. Miccio-Fonseca. But I believe they have met their burden in that regard and I will grant the government’s motion as to [CL],

CL testified from the deliberation room and was visible and audible in the courtroom on an 18-inch color television. Members of the prosecution and the defense were seated in the deliberation room while CL testified. Other members of the prosecution and defense teams remained in the courtroom. Two telephone lines were installed. One was a direct line between the defense table in the [369]*369courtroom and the defense counsel in the deliberation room. The second line was between the military judge, who remained in the courtroom, and the counsel for both sides seated in the deliberation room.

CL testified that she saw appellant “put his finger in [SL]’s vagina” while changing her diaper. She testified that she also watched her mother change SL’s diapers. Asked what was different about the way appellant changed SL’s diapers, CL testified, “My mommy doesn’t stick her finger up — in [SL]’s vagina.”

CL did not mention seeing appellant tie AL to the bed. Dr. Miceio-Fonseca testified, however, that the first time CL visited her CL drew a picture of AL tied to a bed and crying, with appellant standing next to the bed. Dr. Miceio-Fonseca testified that CL told her that the drawing was “about her father molesting her oldest sister, [AL].”

The Government requested that AL be permitted to testify outside appellant’s presence. AL had been called as a witness on January 10 but was unresponsive and emotional.

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Cite This Page — Counsel Stack

Bluebook (online)
45 M.J. 366, 1996 CAAF LEXIS 112, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-longstreath-armfor-1996.