United States v. Suarez

32 M.J. 767, 1991 CMR LEXIS 501, 1991 WL 60075
CourtU.S. Army Court of Military Review
DecidedApril 11, 1991
DocketACMR 8903603
StatusPublished
Cited by3 cases

This text of 32 M.J. 767 (United States v. Suarez) is published on Counsel Stack Legal Research, covering U.S. Army 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. Suarez, 32 M.J. 767, 1991 CMR LEXIS 501, 1991 WL 60075 (usarmymilrev 1991).

Opinion

OPINION OF THE COURT

GRAVELLE, Judge:

Contrary to his pleas, Captain Suarez was convicted by a general court-martial of indecent assault, two specifications of committing indecent acts, and communicating a threat to kill, in violation of Article 134, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. § 934 (1982). The members sentenced the appellant to dismissal from the service and confinement for five years. The convening authority approved the sentence.

The appellant asserts, inter alia, that the military judge committed plain error in permitting an expert witness to testify concerning “Child Sexual Abuse Accommodation Syndrome.” He also contends that the defense counsel provided ineffective assistance of counsel in not objecting to the [768]*768testimony concerning this syndrome. We reject both contentions and affirm.

I. Facts

The evidence presented at trial established that Captain Suarez fondled the buttocks, vaginal areas and breasts of his two adopted daughters on divers occasions during a one-year period. In addition, he threatened to kill one of the daughters if she told anyone about the touching. The crucial evidence in the prosecution’s case came from the daughters themselves and from a psychologist, Dr. Burns, who explained that the children suffered from different aspects of a condition which he identified as Child Sexual Abuse Accommodation Syndrome.

The appellant’s adopted daughters, S and A (ages 11 and 12) testified against Captain Suarez quite differently in the manner and content of their testimony. S testified that she resided in a hospital in California for seven months preceding trial. While in the hospital, she alleged for the first time that her adopted father had molested her. As a witness, S was hostile to her father and direct in her accusations. The other adopted daughter, A, reluctantly acknowledged her adopted father’s touching but minimized his actions and attributed his touching to innocent playfulness, affection, and “joking around.” A had testified at the Article 32, UCMJ, investigation that her father’s touching was wrong. At trial, however, she denied any wrongdoing on his part.

In order to explain the dissimilar behavior of these two children, the government presented the expert testimony of Dr. Burns, a clinical psychologist specializing in child sexual abuse. Dr. Burns was present in the courtroom during the testimony of S and A. He testified that he had treated S for severe emotional problems and that she had been removed from the Suarez home in Germany and put into a hospital for disturbed children in California on his recommendation. Dr. Burns testified that he had never interviewed or treated A.

In explaining the girls’ failure to report promptly the fondling and A’s recantation of parts of her Article 32 testimony, Dr. Burns provided information about the Child Sexual Abuse Accommodation Syndrome. He described the syndrome in the following terms:

Child Sex Abuse Accommodation Syndrome was formulated by Roland Summit, a psychiatrist out of the UCLA clinic. It helps explain why some children, after initially indicating that sexual abuse has occurred, later on change their stories; why some children go through a sex abusing scenario at home rather than reporting it to someone. It involves several features, but essentially you have— first of all, if I may refer to some notes—you have a situation where there is guaranteed secrecy. Secondly, the child has to feel relatively helpless. In other words, a child in a home with parents who are seen or perceived as the providers. Given those situations and that sex abuse has occurred, you will sometimes have what is called an “accommodation” to the situation, in which, essentially, a child goes along with the sex abuse that has occurred. Later on, you will have, when it finally is made manifest, which is often when the child is getting a little more independent, delayed, conflicted or unconvincing kinds of disclosures to various people, often someone at school. And, finally, a retraction, because the child perceives that the adults in the environment do not really believe her and are asking all kinds of questions about why she did not take action and are accusing her of lying and so forth. She will often retract because she does not want to be in the position of sending her father to prison or breaking up the family.

The trial counsel asked Dr. Burns if he noted any of the characteristics of the syndrome in either child. Dr. Burns answered:

In [A], a number of the features of this syndrome are present. It was very apparent to me, in my mind, that the retraction was a part of this syndrome. With [S], her behavior at the time I was treating her showed a number of these fea[769]*769tures. Today, I don’t see many of these features present in her.

II. Admissibility of Dr. Bums’ Testimony

Until 1987, the prevailing test for admissibility of scientific evidence under military law was the test first established in Frye v. United States, 293 F. 1013 (D.C.Cir.1923). The Frye test required that scientific evidence, to be admissible, must have progressed to the point of being generally accepted in the scientific community. The Frye test was the accepted standard of admissibility in military courts until the adoption of the Military Rules of Evidence [hereinafter Mil.R.Evid.] brought that test into question. See generally, United States v. Gipson, 24 M.J. 246, 250-1 (C.M.A.1987). In Gipson, the Court of Military Appeals rejected the Frye test as the “independent controlling standard of admissibility” for emerging scientific evidence. Gipson, 24 M.J. at 251; United States v. Abeyta, 25 M.J. 97, 98 (C.M.A.1987), cert. denied, 484 U.S. 1027, 108 S.Ct. 752, 98 L.Ed.2d 765 (1988). Noting the increasing criticism of the Frye test, the Court concluded that Military Rule of Evidence 702 “superseded” the Frye test. Gipson, 24 M.J. at 251.

Mil.R.Evid. 702 is the primary rule dealing with the admissibility of scientific evidence in the form of expert testimony. Under this rule, the key question in determining the admissibility of expert testimony is whether it would be helpful to the factfinders in resolving the facts in issue. Gipson, 24 M.J. 246; United States v. Nelson, 25 M.J. 110 (C.M.A.1987), cert. denied, 484 U.S. 1061, 108 S.Ct. 1016, 98 L.Ed.2d 982 (1988); 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). The practical effect of Mil.R.Evid. 702 is to make more evidence available to the factfinder than was permitted previously under the Frye test. United States v. Snipes, 18 M.J. 172, 178 (C.M.A.1984).

For scientific evidence to be admissible under current military law, the military judge must determine that: (1) the evidence is relevant within the meaning of Mil.R.Evid. 401; (2) it is helpful to the factfinder within the meaning of Mil.R. Evid. 702; and, (3) its probative value outweighs the danger of prejudice, as outlined in Mil.R.Evid. 403. United States v. Abeyta, 25 M.J. at 98. Admissibility of scientific evidence in the form of expert witness “syndrome” testimony is determined by these standards.

Subsequent to Gipson,

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Related

United States v. Cacy
43 M.J. 214 (Court of Appeals for the Armed Forces, 1995)
United States v. Suarez
35 M.J. 374 (United States Court of Military Appeals, 1992)
United States v. Bostick
33 M.J. 849 (U.S. Army Court of Military Review, 1991)

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Bluebook (online)
32 M.J. 767, 1991 CMR LEXIS 501, 1991 WL 60075, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-suarez-usarmymilrev-1991.