United States v. Morgan

31 M.J. 43, 1990 CMA LEXIS 1031, 1990 WL 128125
CourtUnited States Court of Military Appeals
DecidedSeptember 7, 1990
DocketNo. 63,193; NMCM 88 3838
StatusPublished
Cited by23 cases

This text of 31 M.J. 43 (United States v. Morgan) is published on Counsel Stack Legal Research, covering United States Court of Military 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. Morgan, 31 M.J. 43, 1990 CMA LEXIS 1031, 1990 WL 128125 (cma 1990).

Opinion

Opinion of the Court

COX, Judge:

Appellant was tried by a general court-martial composed of officer and enlisted members at Camp Pendleton, California, in March 1988. Contrary to his pleas, he was [44]*44convicted of forcible sodomy1 on, and communicating indecent language to, a female under the age of 16, in violation of Articles 125 and 134, Uniform Code of Military Justice, 10 USC §§ 925 and 934, respectively. Appellant was sentenced to confinement for 10 years, total forfeitures, reduction to E-l, and a dishonorable discharge. The convening authority approved the sentence, and the Court of Military Review affirmed in an unpublished opinion. We granted review of the following issues:

I
WHETHER THE MILITARY JUDGE ERRED BY ADMITTING A VIDEOTAPE RECORDING OP STATEMENTS MADE BY THE ALLEGED VICTIM TO A SOCIAL WORKER.
II
WHETHER THE RECORD DEMONSTRATES THE FOUR-YEAR-OLD WITNESS’ INABILITY TO DISTINGUISH TRUTH FROM FALSITY AND TO UNDERSTAND THE MORAL IMPORTANCE OF TELLING THE TRUTH.

The charges arose from an alleged sexual assault by appellant on a 4-year-old girl at Camp Pendleton. Appellant and his family lived next door to the victim and her family in base housing. On the evening of October 1, 1987, appellant invited the victim and her mother, Mrs. M, over to his house for dinner with him and his three children. Appellant’s wife was working that night, so she was not home. Mrs. M’s husband, a lance corporal, was overseas on military assignment. The two couples apparently had been good friends, and the children often played together.

During opening argument, defense counsel announced the theory that Mrs. M had coached her child to fabricate the incident so that her husband would be brought home. Counsel informed the members that the victim’s trial testimony would reveal such coaching. On closing argument, defense counsel reiterated this claim and also charged that the child’s trial testimony was inconsistent with her Article 32, UCMJ, 10 USC § 832, testimony.

As the evidence on the merits revealed, at approximately 8:00 p.m. on the evening in question, Mrs. M was in appellant’s kitchen talking on the phone. The victim was upstairs in the bathroom, and appellant was also upstairs. According to the child’s testimony, appellant took her into his bedroom, got her on the bed, and took her clothes off. He then anally sodomized her (“He stuck his knobby in my butt”), and “he asked me to lick it and I said no.” He warned her not to scream and threatened her if she told anyone. The child testified about her understanding of male and female genital areas, using anatomical dolls. At one point, however, she became confused, and it was necessary to call a recess.

During cross-examination, defense counsel sought to impeach her by pointing out alleged inconsistencies in her statements and by having her acknowledge that she had told the same “story over and over again.”

Mrs. M testified that, upon returning home, she noticed her daughter was acting “kind of excited and kind of keyed up a little bit.” When Mrs. M asked her why she was acting strangely, the victim replied that appellant had “stuck his knobby in her butt.”2 When Mrs. M asked her again, she began to cry. At that point, Mrs. M examined the child’s anus and saw blood. She [45]*45immediately took her to the Camp Pendleton Naval Hospital; the following morning, they went to the San Diego Children’s Hospital.

Defense counsel attempted to impeach Mrs. M on cross-examination with allegedly inconsistent prior statements regarding the injury to the victim’s anus. He also attempted to develop the theme that Mrs. M had invented the molestation story in order to get her husband home.

The treating physician from the Naval hospital testified that the child’s anus had been damaged. A pediatrician from the children’s hospital concurred that the anal area had been significantly damaged.3

In light of the cross-examination of the victim, as well as that of Mrs. M, trial counsel offered, as a prior consistent statement, a videotaped interview between the child and a social worker from the San Diego Center for Child Protection. Mil.R. Evid. 801(d)(1)(B), Manual for Courts-Martial, United States, 1984. The interview occurred after Mrs. M first brought the matter to the attention of the authorities, but before the Article 32 hearing. Defense counsel objected on the ground that the videotape would not rebut the charge of coaching, in that the alleged motive to fabricate had already arisen prior to the initial complaint. See United States v. McCaskey, 30 MJ 188 (CMA 1990). In addition, counsel argued that the evidence would be cumulative. See Mil.R.Evid. 403.

Observing, inter alia, “that there are no time parameters in [Mil.R.Evid.] 801(d)(1)(B),” but see United States v. McCaskey, supra, and that “the nature and thrust of the cross-examination of the little girl standing alone is sufficient to bring these rules into play,” the military judge overruled the objection and permitted the videotape to be played for the court members. Ultimately, the judge instructed the members that they could consider the videotape interview for its “tendency to refute [the] suggestion of recent fabrication, improper influence, or improper motive” and for “the truth of the matters stated therein.”

I

Before this Court, appellate defense counsel contend that the videotaped interview was inadmissible because appellant was not given the opportunity to cross-examine the witness during the social worker’s interview of the child. Therefore, in appellant’s view, his right to confrontation under Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988), was denied. In Coy, the victims testified in court, but behind a screen, so that they could not see the accused. Coy is inapposite to this case because this victim faced appellant in court, eyeball to eyeball. See California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970)(right to confrontation not violated by admission of prior statement of witness who was subject to cross-examination at trial, but not subject to cross-examination at time of prior statement).

What is guaranteed is the “opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 294, 88 L.Ed.2d 15 (1985); see also United States v. Owens, 484 U.S. 554, 558, 108 S.Ct. 838, 842, 98 L.Ed.2d 951 (1988); Kentucky v. Stincer, 482 U.S. 730, 736, 107 S.Ct. 2658, 2664, 96 L.Ed.2d 631 (1987). In this case, appellant had ample opportunity to cross-examine the witness. Cf. United States v. Quick, 26 MJ 460 (CMA 1988). The circumstances giving rise to the Supreme Court’s concerns in Coy and other confrontation cases were simply not present here.

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Cite This Page — Counsel Stack

Bluebook (online)
31 M.J. 43, 1990 CMA LEXIS 1031, 1990 WL 128125, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-morgan-cma-1990.