United States v. Sawyer

32 M.J. 917, 1991 CMR LEXIS 742, 1991 WL 78462
CourtU S Air Force Court of Military Review
DecidedApril 12, 1991
DocketACM 27969
StatusPublished
Cited by6 cases

This text of 32 M.J. 917 (United States v. Sawyer) is published on Counsel Stack Legal Research, covering U S Air Force Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Sawyer, 32 M.J. 917, 1991 CMR LEXIS 742, 1991 WL 78462 (usafctmilrev 1991).

Opinion

OPINION OF THE COURT

LEONARD, Senior Judge:

Master Sergeant James D. Sawyer comes before us convicted of carnal knowledge and indecent acts with his stepdaughter. He pleaded guilty to both offenses and was sentenced by court members. His approved sentence consists of a bad conduct discharge, confinement for 5 years, and reduction to E-1. Through counsel and Grostefon1 submissions, he asserts a number of errors, none of which we find persuasive.

I

Appellant’s counsel argues the military judge erred by refusing to accept an expert witness offered by the defense under Mil.R.Evid. 702. Appellant maintains this ruling prevented the defense from presenting an expert opinion regarding recidivism in sexual abuse cases and appellant’s potential for recidivism. He insists such an opinion was very important to consideration of an appropriate sentence. We find no error in the military judge’s ruling.

During his presentencing case, appellant attempted to qualify a Dr. C. Van Rosen as an expert witness in the area of sexual abuse diagnosis, treatment, and therapy. Both parties questioned Dr. Van Rosen about his qualifications as an expert. In response to questions by trial counsel, Dr. Van Rosen was unable or unwilling to specify his training and education in the area of child sexual abuse. Because of this failure to describe specific child sexual abuse training, trial counsel objected to Dr. Van Rosen’s qualification as an expert witness in child sexual abuse. The military judge ruled that Dr. Van Rosen would be allowed to testify as an expert in family psychology, but not child sexual abuse.

Although adoption of Mil.R.Evid. 702 may have broadened the admissibility of expert testimony in military courts-martial,2 for expert testimony to be admitted in a court-martial two requirements must still [919]*919be satisfied. First, the proponent of the testimony must establish that the offered testimony will reliably “assist the trier of fact to understand the evidence or to determine a fact in issue.” United States v. Gipson, 24 M.J. 246 (C.M.A.1987); United States v. Snipes, 18 M.J. 172 (C.M.A.1984); United States v. Downing, 753 F.2d 1224, 1237 (3d Cir.1985); Mil.R.Evid. 702. Second, the proponent of expert testimony must show that the offered witness possesses the necessary knowledge, skill, experience, training or education to qualify as an expert on the matters that will be the subject of the testimony. United States v. Mustafa, 22 M.J. 165 (C.M.A.1986), cert. denied, 479 U.S. 953, 107 S.Ct. 444, 93 L.Ed.2d 392 (1986); Snipes, 18 M.J. at 179; Mil.R.Evid. 702. The military judge has the discretion to determine whether the offered witness qualifies as an expert on a particular subject or in a particular field. Gipson, 24 M.J. at 251; Mustafa, 22 M.J. at 168; Snipes, 18 M.J. at 178.

Applying the law to the facts of this case, we do not find an abuse of discretion in the military judge’s ruling concerning Dr. Van Rosen’s qualifications as an expert witness. His refusal to qualify Dr. Van Rosen as an expert witness in child sexual abuse was supported by Dr. Van Rosen’s failure to demonstrate education, training, and specialized knowledge in this field of expertise. Further, this failure to qualify did not deny appellant the testimony of Dr. Van Rosen. He was still permitted to testify as an expert in family psychology and express his opinion as to appellant’s rehabilitative potential. Additionally, the defense successfully qualified another witness, a psychiatrist, as an expert in child sexual abuse and that witness testified extensively as to appellant’s treatment prognosis and recommended courses of rehabilitation. Therefore, even if the military judge’s ruling with respect to Dr. Van Rosen were in error, any possible prejudice to appellant would be very speculative.

II

In invited issues, appellant argues that trial counsel improperly cross-examined his daughters and misconstrued the results of that cross-examination in subsequent cross-examination of appellant’s commander and in final argument on sentence. We disagree.

During presentencing, appellant’s stepdaughter (the victim) was called as a witness for the defense to testify as to her relationship with appellant. She testified she had reported appellant’s sexual abuse of her in October of 1988 and he had told her he was sorry and had not tried to sexually abuse her since that time. On cross-examination, trial counsel asked her about an incident that had occurred about six months after she reported appellant’s sexual abuse. She admitted that, in April 1989, she told her stepsister and mother that appellant had asked her “How about doing it one more time before I go away?” She also testified that, after her mother talked to appellant about the incident, she was told by appellant and her mother that she misunderstood appellant’s remark.

Appellant’s natural daughter also testified for the defense and, on cross-examination, corroborated her stepsister’s previous testimony about the April 1989 incident. There was no objection by the defense to the cross-examination of either daughter.

Later in the defense presentencing case, appellant’s commander testified that appellant’s rehabilitation potential was positive and that he had “great, great chances to rehabilitate.” On cross-examination, trial counsel inquired into the basis for the commander’s opinion. He explored the commander’s knowledge of the details of the offenses, but the commander remained firm on his rehabilitation recommendation. He then asked if the commander would change his opinion if he knew that appellant had, in April 1989, asked his stepdaughter if she would “do it one more time?” Defense counsel objected stating that the basis for the question had not been established. The military judge overruled the objection and the commander admitted that knowledge of such a statement would certainly impact his rehabilitation recommendation.

[920]*920During final argument on sentence, trial counsel argued the testimony of both the victim and appellant’s natural daughter concerning the statement attributed to appellant in April 1989. Trial defense counsel objected the first time the argument was made, stating that the argument was not supported by the evidence. The objection was overruled.

We find no error in the military judge’s rulings. The cross-examinations of appellant’s stepdaughter and daughter did not exceed the bounds of Mil.R.Evid. 611(b). Trial counsel’s cross-examination properly addressed subject matter that had been originally raised by trial defense counsel during direct examination.

The cross-examinations of the daughter and stepdaughter also provided a valid evidentiary basis both for trial counsel’s subsequent cross-examination of the commander and his sentencing argument. During the cross-examinations, both witnesses recalled the report of appellant’s April 1989 request. Although both witnesses attempted to characterize the incident as a “misunderstanding,” their testimony left a distinct impression that the subsequent characterization of the incident as a “misunderstanding” may well have been due to parental pressure from appellant and the victim’s mother.

Further, trial counsel’s cross-examination of appellant’s commander was a proper testing of the basis for an opinion about rehabilitation potential.

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Bluebook (online)
32 M.J. 917, 1991 CMR LEXIS 742, 1991 WL 78462, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-sawyer-usafctmilrev-1991.