United States v. Martindale

30 M.J. 172, 1990 CMA LEXIS 808, 1990 WL 68850

• Court: United States Court of Military Appeals
• Decided: June 12, 1990
• Docket: No. 54,536; NMCM 85 0771R
• Status: Published

Opinions

Opinion of the Court

COX, Judge:

Appellant was tried by a general court-martial before members in. March 1984. Contrary to his pleas, he was found guilty of two specifications of attempted sodomy, one specification of committing an indecent act with a minor, and thirteen specifications of sodomy, in violation of Articles 80, 134, and 125, Uniform Code of Military Justice, 10 USC §§ 880, 934, and 925, respectively. These offenses were committed by appellant upon his adopted son, S, who was under 16 years of age. Appellant was sentenced to be confined for 5 years, reduced to pay grade E-l, and dishonorably discharged from the United States Navy. The convening authority approved the findings and sentence. The Court of Military Review in an unpublished decision affirmed the findings and sentence on December 30, 1985.

In September 1986, this Court granted an issue raised in appellant’s appeal asking us to determine if the “Court of Military Review err[ed] in holding that a transcript of the oral unsworn statement of [S] was properly admitted into evidence.” By summary disposition, 24 MJ 405 (1987), we set aside the decision below and remanded the record of trial for further consideration in accordance with our decision in United States v. Barror, 23 MJ 370 (CMA 1987).

On January 6, 1989, after further reflection on the issue, the Court of Military Review found:

[After] again examinpng] the record of trial, the clemency petitions, the assignment of error ... [we] have concluded that the findings and sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant was committed____ Accordingly, the findings and sentence as approved on review below are affirmed.

Unpub.op. at 3.

This time we granted appellant’s appeal to consider:

WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL ERROR BY ADMITTING INTO EVIDENCE A TRANSCRIPT OF AN ORAL UN-SWORN STATEMENT OF ... [THE VICTIM, S].

We are called upon here to determine if the out-of-court statement of the alleged victim was admissible in evidence to corroborate appellant’s confession. We conclude that the military judge did not err when he found admissible the transcript of the interview between the alleged victim and special agents of the Naval Investigative Service (NIS). In so holding, we conclude that the witness was “functionally unavailable” and, therefore, the decision to admit the evidence was justified. Mil.R. Evid. 804(a)(3), Manual for Courts-Martial, United States, 1969 (Revised edition). We are convinced that no aspect of this ruling denied appellant’s right to confront the child accuser. United States v. Quick, 26 MJ 460 (CMA 1988). The witness was present at the suppression hearing, testified at a pretrial deposition, and, indeed, testified for his stepfather during the sentencing hearing. See Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988); United States v. Owens, 484 U.S. 554, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988). In addition, we have determined that sufficient evidence was introduced during the suppression hearing concerning admissibility of the confession to allow the military judge to conclude that the child’s statement to the NIS special agents had sufficient “guarantees of trustworthiness” to make it reliable. Mil.R.Evid. 804(b)(5). See United States v. Hines, 23 MJ 125 (CMA 1986).

This case was contested before members. The only evidence presented to them by the Government was appellant’s confession and the contested statement. The latter, introduced through the testimony of NIS Special Agent Machin, was supported by evidence of a transcript of an interview between two NIS agents and the victim, appellant’s adopted son. This statement was introduced through the testimony of NIS Special Agent Kellam. An explanation of the circumstances surrounding the confession and the subsequent interview of the child by the NIS agents is necessary for a complete understanding of the case.

Appellant was enrolled in Navy Over-Eaters Anonymous, a program which mirrored the “Twelve Steps” of Alcoholics Anonymous. “Step 5” of that program required each individual to admit his or her wrongs to another person. Because he was extremely distraught over his past sexual abuse of his stepson, which included fellatio and attempted anal intercourse, appellant decided to admit his actions to a counselor first and then to a Family Advocacy advisor. He ultimately confessed to NIS on January 13, 1984.¹ Five days later, appellant’s wife was asked to bring her son to the NIS office to be interviewed.

Appellant filed a motion in limine asking the military judge to exclude the confession, claiming it lacked sufficient corroboration under Mil.R.Evid. 304(g). To substantiate appellant’s admissions, the Government called the child as a witness. Although he was 12 years old, the child was emotionally and mentally disabled and could not read well. At the motion hearing, he testified that he could not remember what he told the NIS agents on January 18, and that he was unsure if what they said he told them was true. He also stated, in response to questioning from the military judge, “No, I don’t want to tell you, ’cause I don’t know.” He repeated over and over that he did not remember the events or the interview. See United States v. Owens, supra.

Previously, the child had appeared at a deposition attended by trial and defense counsel, as well as appellant. There, he said that his statements to the NIS agents about his father’s sexual abuse were true. However, just as he eventually did at the suppression hearing, he became very upset during the questioning and stated that he could no longer remember what he had said during the NIS interview.

Because he was either unable or unwilling to corroborate his stepfather’s confession, the Government requested that the child be declared unavailable to testify and that, instead, a transcript of his interview with the NIS agents be admitted as an exception to the hearsay rule under Mil.R.Evid. 804(b)(5) or, if he was found available, Mil.R.Evid. 803(24). Defense counsel sought to exclude the transcript, arguing that the child was available and that the transcript lacked the “circumstantial guarantees of trustworthiness” required by either rule.

The NIS interview of the child lasted approximately 2 hours (from 3:30 to 5:05 p.m.). During that time, Agent Davis asked the child many questions, all of which were based upon appellant’s written confession, which she had with her. The agents asked predominantly leading questions. During the first 30 minutes, they asked the child to sign a sworn statément, but upon learning that his reading comprehension was poor, they obtained a tape recorder. Agent Kellam testified that she had to turn the tape recorder off several times during the interview, because the child was “confused” or to allow Agent Davis, who was asking most of the questions, to collect her thoughts. Agent Kellam testified that she did not know that the child was emotionally or mentally disabled until after the interview.

The Government sought to introduce the interview as evidence to corroborate appellant’s confession. In support of its contention that the interview satisfied the residual hearsay rule in that it was reliable, the Government called Dr. James Tom Greene, a clinical psychologist, who had talked with the child about 2 weeks after his interview with the NIS agents. Although Dr. Greene recommended against requiring the child to testify, Dr. Greene did say that, should it be necessary for him to testify, a number of steps could be taken to make the ordeal less traumatic. Dr. Greene also opined that the child had been sexually abused.

Additionally, Dr. Greene offered his opinion on the reliability of the child’s statements to the NIS agents. The doctor testified that the child was very emotionally and psychologically disturbed; that he suffered from a learning disability which, in Dr. Greene’s opinion, was both “neurologically based” and a result of the sexual abuse. Dr. Greene stated that he had performed a number of psychological tests on the child and conducted an interview, as stated above, 2 weeks after the boy was interrogated by NIS agents. During their discussion, the child freely told Dr. Greene that he had been made to perform fellatio on his father several times. While the child was not clear about the exact frequency of the acts, he was forthright in stating that they had occurred. He exhibited no ill will towards his father and was, in fact, very concerned that his father could, be punished. Dr. Greene stated that, based on his interview with the child and his own experience with other child-sexual-abuse victims, he did not believe the child was fabricating the fact that the sexual abuse occurred. The doctor agreed that it was possible the child was “latching on to” suggestions by the NIS agents as to exact times and frequency of the sexual abuse. He maintained, however, that there was no indication that the boy had fabricated the fact that the abuse occurred or that it had happened frequently, over a long period of time. All of Dr. Greene’s testimony was offered in camera to support the admission of the confession and not on the merits. See United States v. Arruza, 26 MJ 234, 237 (CMA 1988).

Basing his decision on the child’s claimed lack of memory and unwillingness to testify, as well as Dr. Greene’s testimony regarding the traumatic effect testifying would have on the child, the military judge ruled that the boy was “unavailable” to testify as a witness at trial. He stated that, “taken as a whole, ... [the transcript] has substantial equivalent circumstantial guarantees of trustworthiness,” under Mil.R.Evid. 803(24) or 804(b)(5), but he did not specify what those guarantees were. The military judge then ruled that appellant’s confession could be admitted into evidence and that the transcript of the child’s NIS interview could be admitted to corroborate appellant’s admissions. The transcript eventually was offered during the Government’s case-in-chief.

There are two separate concerns regarding the military judge’s ruling. First, Mil.R.Evid. 304(g)(2) provides that “[t]he military judge alone shall determine when adequate evidence of corroboration has been received.” Furthermore:

[t]he independent evidence [used for corroboration] need raise only an inference of the truth of the essential facts admitted. The amount and type of evidence introduced as corroboration is a factor to be considered by the trier of fact in determining the weight, if any, to be given to the admission or confession.

Mil.R.Evid. 304(g)(1). We are satisfied from the evidence presented at the pretrial in limine hearing that the military judge did not err in finding the confession to be corroborated. See Mil.R.Evid. 104(a).

Notwithstanding the fact that the confession was admissible, the question remains as to whether the out-of-court declarations of the child were admissible on the merits.

Appellant does not contend that admission of the NIS interview with S violated his right to confront the witness under the Sixth Amendment to the Constitution of the United States.² Rather, he contends that the statement should not have been admitted because it lacked the “circumstantial guarantees of trustworthiness” required by Mil.R.Evid. 803(24) or 804(b)(5). Based upon the entire record presented to the military judge, including appellant’s confession, we are satisfied that the hearsay testimony offered to corroborate appellant’s admissions was reliable and admissible under Mil.R.Evid. 804(b)(5).

The record also supports the military judge’s ruling that the child was “unavailable” within the meaning of Mil.R.Evid. 804(a)(2) and (3). The judge’s ruling, however, was based solely on admissibility of the hearsay evidence and did not infringe upon or restrict appellant’s right to confront his accusers. United States v. Quick, 26 MJ at 462. Accordingly, we find no error prejudicial to the rights of appellant.

The decision of the United States Navy-Marine Corps Court of Military Review is affirmed.

Judge SULLIVAN concurs.

1 . Because of appellant’s participation in this program, Part II of the dissent apparently expresses concern that appellant has been unfairly prosecuted. This issue is not before us. If Chief Judge Everett’s instincts are correct, such is a matter for clemency consideration.

2 . In light of Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988), and Craig v. Maryland, — U.S. -, 110 S.Ct. 834, 107 L.Ed.2d 830 (1990), the Bench and Bar should be forewarned that the correct procedure would have been to put the child on the witness stand in front of the members in order that they might weigh the import of the “unavailability” or the believability of the out-of-court statement.