14 M.J. 723 | U S Air Force Court of Military Review | 1982
DECISION
The accused asserts that the military judge erred by striking the entire testimony of a defense expert witness who testified during the pre-sentencing phase of the trial. We agree and order a rehearing.
In accordance with his pleas, the accused was found guilty by a general court-martial, consisting of members, of sodomy and lewd and lascivious acts involving girls eight and four years old, in violation of Articles 125 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 925, 934. His sentence, as approved by the convening authority, extends to a bad conduct discharge, confinement at hard labor for three years, and reduction to the grade of airman.
I
During the extenuation and mitigation portion of the trial, the defense called Major Thomas R. Mareth, an Air Force psychiatrist, whom the court accepted as an expert in psychiatry.
Responding to initial defense inquiries as to treatment opportunities for child abusers, Dr. Mareth explained the causes of such abnormal behavior. He testified that, absent schizophrenia, organic brain disorder, or disorders of impulse control, the principal diagnosis would be pedophilia. He described pedophilia as a condition in which a person “either repeatedly or as a preferred method of sexual gratification gets that gratification from children.” He added that such a person may have marked feelings of inadequacy, feel threatened by adult heterosexual relations, or have difficulty with self-esteem.
Hypothetical questions were then posed by the defense, seeking to elicit an opinion as to the root cause of the accused’s conduct assuming otherwise normal behavior and no organic brain damage. Trial counsel ob
In our view, the military judge erred.
We begin our analysis by noting that the hypothetical question
The underlying factual assumptions made in a hypothetical question put to an expert witness must remain within the range of issues and include only such matters as are supported by the evidence, directly or inferentially. McCormick supra, at 31. Annotation, 56 A.L.R.3d 300, 319 (1974).
There is an additional reason for finding the hypothetical questions admissible: In this case, the matter arose during mitigation and extenuation, where the rules of evidence are traditionally relaxed in military practice.
We view this evidentiary issue as a complex one and recognize that courts have generally counselled deference to the sound discretion of the trial judge in such matters. 2 Wigmore, supra 805-809; Stucky v. Johnson, 213 Kan. 738, 518 P.2d 937, 938 (1974); Lehigh Portland Cement Cq. v. Dobbins, 282 Ala. 513, 213 So.2d 246, 249 (1968). See generally, 31 Am.Jur.2d Expert and Opinion Evidence 560 (1967). Nevertheless, in this case, we believe on balance that the judge erred, especially since the evidence proffered by the defense was probative in the presentencing phase of the trial. United States v. Barfield, 22 U.S.C.M.A. 321, 46 C.M.R. 321, 322. See generally, Analysis, Mil.R.Evid. 703. It follows that its exclusion seriously impaired the accused’s ability
II
The accused also argues that his pleas of guilty to the sodomy offenses were improvident. The accused specifically admitted that he “kissed” the first child and that, as to the second girl, he “kissed her vagina with his mouth.” The argument is now made that since some penetration of the female sex organ is required and there was no evidence of such penetration, the findings of guilty cannot be sustained.
We disagree. The military judge correctly enumerated the elements of the offense of sodomy and fully advised the accused that any penetration, however slight, was sufficient to complete the offense. As we read the record, the accused was fully apprised of the elements of the offense of sodomy and the accused admitted that he committed this offense. Therefore, we are convinced that the pleas of guilty were provident.
III
The accused also claims that the military judge erred by denying a defense challenge for cause against one court member. The member was the direct supervisor of Sergeant C, the father of one of the victims. The member testified that he could be impartial and that he had no social contact with Sgt. C or his family. On the facts of this case, we find that the military judge did not abuse his discretion in denying the challenge for cause. United States v. Fort, 16 U.S.C.M.A. 86, 36 C.M.R. 242, 244 (1966); United States v. Pollack, 9 M.J. 577, 579-580 (A.F.C.M.R.1980). See also, United States v. Davenport, 14 M.J. 547 (A.C.M.R.1982). We find United States v. Barnes, 12 M.J. 956 (A.F.C.M.R.1982) distinguishable in both letter and spirit from the instant case on its facts.
The findings of guilty are affirmed. The sentence is set aside. A rehearing on sentence may be ordered.
AFFIRMED.
. The hypothetical question has been subject to much criticism. See generally Judge Learned Hand, New York Bar Association Lectures on Legal Topics, 1921-1922 (“the most horrific and grotesque wen on the fair face of justice.”). See generally 2 Wigmore, Evidence 812-813 (3d ed. 1940).
. The annotation contains an extensive gathering of decisions in civil cases.
. Paragraph 75c, Manual for Courts-Martial 1969 (Rev.) United States v. Plante, 13 U.S.C.M.A. 266, 32 C.M.R. 266, 274 (1962); United States v. Ledezma, 4 M.J. 838, 839 (A.F.C.M.R. 1978).
. The issue could have been avoided had there been a more extensive discussion on the record of this element. We urge counsel to be alert to the need for “protecting the record” in such matters.
. For earlier analysis of the required elements of the offense of sodomy and the differences at that time between Army and Air Force positions, see United States v. Hoffman, 7 C.M.R. 157, 161-162 (A.B.R.1952) and United States v. Barnes, 2 C.M.R. 797, 799 (A.F.B.R.1952).
. In light of our disposition of the first assignment of error, resulting in a sentence rehearing, we need not discuss the assignment of error that trial counsel’s sentencing argument was improper.