United States v. Pablo

50 M.J. 658, 1999 CCA LEXIS 72, 1999 WL 238932
CourtArmy Court of Criminal Appeals
DecidedApril 8, 1999
DocketARMY 9700481
StatusPublished
Cited by2 cases

This text of 50 M.J. 658 (United States v. Pablo) is published on Counsel Stack Legal Research, covering Army 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. Pablo, 50 M.J. 658, 1999 CCA LEXIS 72, 1999 WL 238932 (acca 1999).

Opinions

OPINION OF THE COURT

CAIRNS, Senior Judge:

At a fully contested general court-martial, a panel of officer and enlisted members acquitted the appellant of sodomy with a child under the age of twelve but convicted him of the lesser included offense of indecent acts with a child under sixteen years of age, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934 [hereinafter UCMJ]. The convening authority approved the sentence of a bad-conduct discharge and reduction to Private El.

In reviewing this case under Article 66, UCMJ, we have examined the record of trial and considered the briefs submitted by the parties, as well as the matters personally raised by the appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). We heard oral argument on the only assigned error, which is framed as follows:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ALLOWING MS. MYRA EARLS TO TESTIFY CONCERNING THE HEARSAY STATEMENTS MADE BY [E.B.] UNDER THE RESIDUAL HEARSAY EXCEPTION, MIL.R.EVID. 803(24), WHERE THE STATEMENT DID NOT POSSESS PARTICULARIZED GUARANTEES OF TRUSTWORTHINESS, WHERE THE TESTIMONY WAS NOT MORE PROBATIVE THEN (SIC) ANY OTHER EVIDENCE OFFERED, AND WHERE THE INTEREST OF JUSTICE WAS NOT SERVED BY THE ADMISSION OF THE STATEMENTS INTO EVIDENCE.

We conclude that the military judge abused his discretion by admitting the hearsay statement, but we hold that the error was harmless.

Background

On the day of the incident giving rise to the charge in this case, the appellant’s wife, Siggy, was baby-sitting the then seven-year-old victim, E.B., and her brother. E.B. testified that it was fun at Siggy’s house because she could play things like hide-and-seek with Kristie, the daughter of Siggy and the appellant. When Siggy went to the grocery store that day, the appellant, whom the children knew as “Cuddles,” assumed the baby-sitting responsibilities.

Under the appellant’s care, the children and the appellant played hide-and-seek inside the appellant’s small three-bedroom apartment because the weather was inclement. When E.B. was “it,” she and “Cuddles” walked into the master bedroom so the other children could hide. After E.B. climbed up on the bed, the appellant put a blindfold over her eyes. As the appellant stood in front of her, he put chocolate in E.B.’s mouth. E.B. further testified on direct examination as follows:

Q. What did he do next, [E.B.]?
A. He pulled down his pants and put his pee-pee in my mouth.
Q. How do you know that?
A. ‘Cause I peeked under the blindfold.
Q. What is a pee-pee honey? Do girls have pee-pees? Is that a private part?
A. Yeah.
Q. How do you know it was his pee-pee honey?
A. ‘Cause I peeked under it.
Q. And where was (sic) his pants?
A. Down on the floor.
Q. What did you do?
A. After I peeked under, I threw it off.
Q. You threw what off honey?
A. The blindfold.
Q. Then what’d you do?
A. I walked out of the room to tell Kristie.
Q. Did you tell Kristie?
A. Yeah.
Q. Was Siggy there?
A. No.
[660]*660Q. Where was she?
A. Shopping.
Q. Did she ever come back?
A. Yes.
Q. And did you tell her?
A. Yeah.
Q. Did she — what did she say?
[After a hearsay objection was overruled, the testimony continued.]
Q. ... Can you say what she said?
A. She said she didn’t believe me.
Q. She didn’t believe you. Did she say you could get in trouble? Did you ever tell Siggy that you were lying?
A. I wasn’t lying.
Q. You weren’t lying? Did you tell your Mom?
A. No.
Q. How come?
A. ‘Cause I was afraid.
Q. Afraid of what?
A. I might get in trouble.
Q. Did you tell anybody else?
A. Yes.
Q. Who did you tell?
A. The student counselor.

Before the trial on the merits, the military judge had conditionally granted a defense motion in limine to preclude the testimony of the student counselor, Ms. Earls. The military judge had found, as a preliminary matter, that Ms. Earls’ testimony concerning what E.B. told her out-of-court would not be more probative on the pertinent issues than E.B.’s own in-court testimony. Because Military Rule of Evidence 803(24)(B) [hereinafter Mil.R.Evid.] requires the proffered out-of-court statement to be more probative on the point for which it is offered than any other reasonably procurable evidence, the military judge ruled that the testimony would not be admissible under the residual exception to the hearsay rule. The military judge made it clear, however, that his ruling was conditioned upon hearing E.B.’s trial testimony and evaluating whether she testified clearly and completely.

During a brief and cautious cross-examination of E.B. at trial, the defense attempted to impeach E.B.’s direct testimony that appellant had sexually abused her by demonstrating that she did not act as a traumatized victim when in the presence of the appellant several weeks after the incident. Specifically, the defense tried to elicit from E.B. testimony that she had returned to the Pablo residence after the alleged sexual abuse and played games with the appellant and his daughter, Jessica. The cross-examination, excluding minor portions which are unnecessary to this discussion, went as follows:

Q. Were you scared of Sergeant Pablo after the hide-n-seek game?
A. Was I scared of Kristie’s dad?
Q. Yeah.
A. Yes.
Q. Okay. And did you go back to Kristie’s parents’ house after the hide-n-seek game?
A. I was there at the hide-n-seek game.
Q. Did you — that was during the Christmas break?
A. I think so.
Q. And after the Christmas break, do you remember going back to the house?
A. I don’t [unfinished]
Q. Do you remember if — do you know Jessica?
A.

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Related

United States v. Pablo
53 M.J. 356 (Court of Appeals for the Armed Forces, 2000)

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Bluebook (online)
50 M.J. 658, 1999 CCA LEXIS 72, 1999 WL 238932, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-pablo-acca-1999.