25 M.J. 867 | U.S. Army Court of Military Review | 1988
Contrary to his pleas, appellant was convicted by a general court-martial composed of officer and enlisted members of assault and battery of his three-year-old son and six-year-old daughter during the period of July 1985 through June 1986. His sentence of a bad-conduct discharge and confinement for three months was approved by the convening authority. He alleges before this court, both personally and through counsel, that the statements of his wife and children were admitted contrary to his right of confrontation under the Sixth Amendment, United States Constitution. We disagree.
Appellant’s wife, Mrs. Brown, made statements describing the assaults and identifying appellant as the perpetrator. She made oral statements to a social services assistant, a treating physician, and an agent of the Criminal Investigation Division (CID), and provided a sworn, written statement to the CID. Appellant’s daughter described being assaulted by her father to the social services assistant, an examining physician, the CID agent, and a school nurse. The son identified his father as the perpetrator to the CID agent. These statements were admitted under Manual for Courts-Martial, United States, 1984, Mil.R.Evid. [hereinafter Mil.R.Evid.] 803(24) and 804(b)(5), the residual hearsay exceptions. In addition, those statements made to medical personnel were admitted under Mil.R.Evid. 803(4) as to the injury, but not as to the identity of the perpetrator.
Appellant recognizes that his wife and children were not available as witnesses before the court. He argues initially that their unavailability was caused by the misconduct of the trial counsel and therefore the government should be barred from using their otherwise hearsay statements at trial based on their unavailability. The defense argument is based on several oral and written statements by Mrs. Brown that the trial counsel threatened to have her children taken from her. These statements were made after she departed Europe with the children. After an extensive evidentiary hearing, the trial judge found that the trial counsel had not caused the unavailability of the witnesses and had not engaged in any improper conduct in dealing with the witnesses. His findings are supported fully by the evidence of record. Thus appellant’s argument with respect to this matter has no merit.
The military judge further found circumstantial guarantees of trustworthiness for the statements. All of Mrs. Brown’s statements were consistent, and one was given under oath. Her first statement was given under circumstances that could have justified its admission into evidence as an excited utterance under Mil.R. Evid. 803(2). Her statements are corroborated by other evidence of record such as the medical testimony describing the injuries. Of particular note is the absence of any recantation, even in her statements concerning the conduct of the trial counsel. The children’s statements were similarly corroborated. All of the statements were found to be material, probative, and in the interests of justice. This court has determined that the evidence fully supports the findings of fact and the admission of the statements into evidence. United States v. Dunlap, 25 M.J. 89 (C.M.A.1987).
This court is concerned with the refusal of the military judge to accept the identity of the perpetrator of the assaults as part of the medical diagnosis and treatment. Mil.R.Evid. 803(4). The apparent basis of his ruling was that identity of the perpetrator of an assault is not reasonably pertinent to diagnosis or treatment of the assault. But see United States v. Deland, 22 M.J. 70 (C.M.A.1986).
Innumerable case histories in the medical profession conclude that “an abused child becomes an abusing parent.” In order to prevent future abuse and break this devastating cycle, many jurisdictions mandate medical personnel, teachers, and others to report suspected child abuse to appropriate officials. See, e.g., Army Regulation 608-1, Personal Affairs: Army Community Service Program, para. 7-5b (15 June 1983)
The findings of guilty and the sentence are affirmed.