United States v. Tolppa

25 M.J. 352, 1987 CMA LEXIS 4196
CourtUnited States Court of Military Appeals
DecidedDecember 22, 1987
DocketNo. 54,965; NMCM 85-1729
StatusPublished
Cited by24 cases

This text of 25 M.J. 352 (United States v. Tolppa) 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. Tolppa, 25 M.J. 352, 1987 CMA LEXIS 4196 (cma 1987).

Opinion

OPINION OF THE COURT

EVERETT, Chief Judge:

Contrary to his pleas, a general court-martial with officer members convicted appellant of committing indecent acts upon a female under age 16, assault and battery upon the same victim, and taking indecent liberties with her by exposing his private parts, in violation of Articles 134 and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 934 and 928, respectively. The sentence adjudged was a bad-conduct discharge, confinement for 3 years and 6 months, total forfeitures, and reduction to the lowest enlisted grade. The convening authority approved these results; and the Court of Military Review affirmed in a lengthy unpublished opinion. The question we granted review asks:

WHETHER THE NAVY-MARINE CORPS COURT OF MILITARY REVIEW ERRED WHEN IT INVOKED THE DOCTRINE OF WAIVER ON APPEAL WHERE TRIAL DEFENSE COUNSEL OBJECTED TO CERTAIN TESTIMONY BUT FAILED TO PERSIST IN THE OBJECTION.

[353]*353I

The Government called as an expert witness Mrs. Elizabeth Ralston, who was Director of Social Services for the local Navy Family Service Center and who had treated several hundred child victims of sexual abuse. Mrs. Ralston had treated Deana, the child victim of the instant offenses. Moreover, some years before, Mrs. Ralston had treated the same girl for a molestation incident involving the victim’s own father.

The military judge voiced his “concern” that the expert’s testimony not “assume the province of the court.” Expressing appropriate sensitivity to the proper scope of the expert’s testimony, he emphasized, “I don’t think it’s proper for her to sit here and say, in her opinion, little Deana is telling the truth.” After discussing with counsel the opinion in United States v. Snipes, 18 M.J. 172 (C.M.A.1984), the judge ruled that he would allow expert testimony as to typical behavior patterns of child victims of sexual abuse and about the credibility of child victims’ versions of events but that he would not allow Mrs. Ralston to testify that she believed this particular victim.

The examination of Mrs. Ralston by counsel and by the military judge proceeded according to these guidelines. However, two of the court members proffered to her written questions about the victim’s credibility. These questions inquired whether a child who “had previous experience with sexual abuse” would be “likely to make up an incident as a means of gaining attention” and whether the child’s prior “abuse by her [own] father” might cause her to “make up a story to get back at the father, using another person (father) as a guide.”

Both the individual military counsel and the military judge indicated that the questions as phrased seemed to do what everyone at trial had, thus far, sought not to do: To permit the expert witness to hone in on the credibility of this particular victim. Before deciding how to rephrase the questions, however, the military judge wisely decided to put the questions to the witness outside the presence of the members and see how she answered them.

This was done; and, after hearing Mrs. Ralston’s answers, the military judge fashioned a two-part hypothetical question about whether “a female of five years, who was sexually assaulted by her natural father, would ... be likely in the future to make up an incident about another person committing similar acts as a means of gaining attention” or “in order to take revenge against the father, using the other individual as a surrogate for her father.” The military judge asked if there were objections from counsel, and the individual military counsel responded that he had none.

Thereupon, the military judge called the court members into the courtroom and posed the hypothetical question which he had drafted. In her answers, Mrs. Ralston indicated doubt that “a child would be likely to make that up to gain attention because of the type of attention that it brings to a child”; and also she testified that it was unlikely that a child would do so for revenge because “[a] young child is unable to abstract and generalize, and to understand really the concept of revenge.” The individual military defense counsel raised no objection to this testimony.

In a follow-up question on redirect, trial counsel asked Mrs. Ralston if she had treated the victim in 1981 and 1983, to which she responded in the affirmative. Thereupon, on his own motion, the military judge admonished “[t]he members ... [to] draw no inferences with regard to the hypothetical question or the fact that Mrs. Ralston may have treated the child. Those two situations are not relevant and you will not make any correlation between those facts.”

On recross-examination of Mrs. Ralston, the individual military counsel asked whether “a child, as described in the hypothetical” could “make up a sexual abuse incident not solely for the purpose of gaining attention, but for some other reason.” Mrs. Ralston answered that it was

[354]*354very possible for a child who’s been sexually abused before to report the same kind of behavior. If they were making up they would draw from their previous experience. If they report different kinds of behaviors that would be less likely to have been made up. In the experience of treating these children, they don’t make up incidents that have not occurred to them.

Prior to recess that evening, another court member tendered to Mrs. Ralston a question as to whether the members could “be exposed to the opinion of an expert witness as to whether a child was telling the truth or not during an interview.” The military judge not only rejected the question but also sua sponte instructed the members:

All right. Mr. President and members of the court, a member had a question and I’m going to read it so that all the members will understand my ruling. The member’s question is “Can the court be exposed to the opinion of an expert witness as to whether a child is telling the truth or not during an interview?” Now, it may be that I haven’t fully understood the question, but I have made this ruling, and I will read it to the members. In fact, it is addressed to the members. “You have heard Mrs. Ralston provide her expert opinion as to the likelihood of children of very tender years, who were purportedly abused sexually, fabricating the events of such sexual abuse. It is your responsibility to weigh and evaluate her opinion as I will later instruct you. As I have noted, it is within your purview to evaluate the credibility of all witnesses, and testimony by an expert as to an opinion of the truthfulness of [DS] would invade that province which is solely your responsibility.” Accordingly, I am going to rule that question is irrelevant.

In his argument on findings, trial counsel deviated from the earlier hypothetical question posed by the military judge and intimated that Mrs. Ralston had opined that the victim could not have fabricated the alleged incident with Tolppa. The individual military counsel objected to this argument on the ground that the expert testimony concerned a hypothetical question rather than the credibility of the victim in this case. Once again the military judge immediately responded with a corrective instruction, stating that “[t]he two hypothetical propounded to her [Mrs. Ralston] were with regard to a child in general.”

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Bluebook (online)
25 M.J. 352, 1987 CMA LEXIS 4196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-tolppa-cma-1987.