United States v. Romey

32 M.J. 180, 32 Fed. R. Serv. 1315, 1991 CMA LEXIS 44, 1991 WL 50317
CourtUnited States Court of Military Appeals
DecidedApril 11, 1991
DocketNo. 63,996; CM 8900465
StatusPublished
Cited by4 cases

This text of 32 M.J. 180 (United States v. Romey) 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. Romey, 32 M.J. 180, 32 Fed. R. Serv. 1315, 1991 CMA LEXIS 44, 1991 WL 50317 (cma 1991).

Opinion

Opinion of the Court

SULLIVAN, Chief Judge:

Appellant was tried by a general court-martial at Fort Ord, California, in February 1989. Contrary to his pleas, the members of this court-martial found him guilty of sodomy with a child under 16 and indecent assault on that same child, in violation of Articles 125 and 134, Uniform Code of Military Justice, 10 USC §§ 925 and 934, respectively. He was sentenced to a dishonorable discharge, confinement for 20 years, total forfeitures, and reduction to pay grade E-l. The convening authority approved the sentence. On November 15, 1989, the Court of Military Review affirmed the findings of guilty and the sentence. 29 MJ 795.

This Court granted review on the following questions of law:

I
WHETHER APPELLANT’S SIXTH AMENDMENT RIGHT TO CONFRONTATION WAS DENIED WHEN THE ALLEGED CHILD-VICTIM TESTIFIED THROUGH HER MOTHER AND WAS NOT TRULY AVAILABLE FOR CROSS-EXAMINATION.
II
WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY INSTRUCTING ON SENTENCING THAT THE MEMBERS COULD CONSIDER MATTERS IN AGGRAVATION NOT IN EVIDENCE.

We hold that the third-party-whisper procedure used in this case did not violate appellant’s constitutional rights. See generally Maryland v. Craig, 497 U.S. -, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990); United States v. Batten, 31 MJ 205 (CMA 1990). Moreover, the purported error on sentencing, if error at all, was harmless. Art. 59(a), UCMJ, 10 USC § 859(a).

The Court of Military Review found the following facts:

In August of 1988, Mrs. Melanie Romey, mother of the victim, S, discovered blisters around S’s anus while teaching her the proper way to bathe. Mrs. Romey immediately brought S to their family doctor, a military physician. The doctor examined the rash, molluscum conta[182]*182giosum, and called a dermatologist to confirm his diagnosis. Because the rash was in the genital area, child abuse was suspected. The doctor asked S if she had been touched by anyone. S responded by saying “No one but daddy.”
Appellant was the sole caretaker of his daughter, S (age 8) and son B (age 5), from 1 January through 1 June 1988. For financial reasons, Mrs. Romey worked and lived in Alaska. It was alleged that during this period appellant told his daughter that he would teach her “how not to get pregnant.” He forced S to masturbate him until he ejaculated and to perform oral copulation. Appellant inserted his finger in S’s vagina and licked her vagina.
At trial, the government called three witnesses, the examining doctor, the victim’s mother, and S. The doctor testified in regard to his examination of the rash and S’s response, “No one but daddy,” to his question, “Has anybody been touching you down there or doing anything?”
S’s mother testified as to S’s age and that both of her children were living with appellant while she was working in Alaska during the period 1 January through 1 June 1988 (the period of the charged offense).
Prior to S’s testimony, trial counsel indicated to the judge that S was reluctant to talk about the charged incidents. S had, in the past, communicated information about the charged offenses by whispering to her mother or a social worker. Another method of communication was for her to draw pictures. It was the trial counsel’s opinion that S would not answer directly in court except as to peripheral matters. In an attempt to familiarize her with the courtroom and various participants, S was called and asked questions out of the presence of the court members. The court members then were called and formal questioning began. S answered general questions with little difficulty and identified her father and the place and period of time she lived with her father while her mother was in Alaska. When S was asked, “What are we going to talk about [today]?” she failed to respond. S responded affirmatively when asked if she would like to talk through her mother by “Sort of whispering] the answer in her [mother’s] ear.”
The military judge received no response when he asked S if she thought she could answer any questions without her mother but directed trial counsel to try without the mother. The witness again answered some preliminary questions but did not respond when asked “Do you remember what daddy was teaching you?” The military judge, without making a formal finding that S needed assistance, directed, over defense objection, that S’s mother be brought in.
Mrs. Romey was seated to the right of her daughter and instructed to repeat only the trial counsel’s questions and her daughter’s answers “without any other words.” Thereafter, Mrs. Romey acted essentially as an interpreter with S whispering her answer to her mother who then gave the answer to the court. Shortly after this method began, Mrs. Romey was sworn as an interpreter by the trial counsel. Essentially all answers related to sodomy or indecent assault were thereafter communicated through the mother. The same procedure was used during cross-examination.

29 MJ at 795-96.

I

The first granted issue broadly suggests that the presentation of the daughter’s direct testimony through the words of her mother violated appellant’s Sixth Amendment right to physically confront the witnesses against him. See generally Coy v. Iowa, 487 U.S. 1012, 1017, 108 S.Ct. 2798, 2800, 101 L.Ed.2d 857 (1988). It additionally asserts that this testimonial method violated the Sixth Amendment because a witness subjected to it cannot be considered “truly available for cross-examination.” See generally United States v. Owens, 484 U.S. 554, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988). Appellant claims that neither of [183]*183these infringements of his Sixth Amendment right to confrontation was justified by any specified finding of public necessity by the judge. See Maryland v. Craig, supra at 3169; Coy v. Iowa, supra at 1020-21, 108 S.Ct. at 2802-03. Finally, he asserts that the child’s testimony presented in this form was inadmissible hearsay which did not meet the Sixth Amendment standards of unavailability required for admission of such evidence at a criminal trial. See Ohio v. Roberts, 448 U.S. 56, 74, 100 S.Ct. 2531, 2543, 65 L.Ed.2d 597 (1980); United States v. Ferdinand, 29 MJ 164 (CMA 1989), cert. denied, — U.S. -, 110 S.Ct. 840, 107 L.Ed.2d 835 (1990).1

The defense brief somewhat expands upon this granted issue and raises Fifth Amendment objections to the third-party-whisper procedure. Counsel contends that it was fundamentally unfair to permit the victim’s mother, who he asserts may have been biased in her child’s favor, to perform the function of interpreter. See generally Prince v. Beto, 426 F.2d 875 (5th Cir.1970). Also, he asserts that appellant was denied due process of law because the mother’s actions as an interpreter in this case unfairly bolstered the child’s testimony against him.

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Bluebook (online)
32 M.J. 180, 32 Fed. R. Serv. 1315, 1991 CMA LEXIS 44, 1991 WL 50317, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-romey-cma-1991.