UNITED STATES, Appellee, v. Michael R. McELHANEY, Staff Sergeant, U.S. Air Force, Appellant.
No. 99-0940
U.S. Court of Appeals for the Armed Forces
Decided Sept. 14, 2000
Crim.App. No. 32522. Argued April 5, 2000.
Crawford, Chief Judge, filed opinion concurring in part and dissenting in part. Sullivan, J., filed opinion concurring in part and dissenting in part.
For Appellant: Major Stephen P. Kelly (argued); Colonel Jeanne M. Rueth (on brief); Lieutenant Colonel James R. Wise.
For Appellee: Captain James C. Fraser (argued); Colonel Anthony P. Dattilo and Lieutenant Colonel Ronald A. Rodgers (on brief).
Judge EFFRON delivered the opinion of the Court.
A general court-martial composed of officer members convicted appellant, contrary to his pleas, of an attempt to commit rape, an attempt to commit carnal knowledge with a child under 16 years of age, carnal knowledge with a child under 12 years of age, carnal knowledge with a child under 16 years of age, sodomy with a child under 16 years of age, and four specifications of indecent acts
On appellant‘s petition, we granted review of the following issues:
I. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT HELD THAT THE STATUTE OF LIMITATIONS APPLICABLE TO TRIALS IN FEDERAL COURTS FOR OFFENSES INVOLVING THE SEXUAL OR PHYSICAL ABUSE OF A CHILD (
II. WHETHER THE MILITARY JUDGE ERRED IN DENYING THE DEFENSE MOTIONS TO COMPEL THE PRODUCTION OF MR. JUANITO PEREZ, SA ERNEST O. JOY, JR., AND MR. THOMAS RICHTER AS WITNESSES.
III. WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL ERROR IN LIMITING THE CROSS-EXAMINATION OF THE VICTIM.
IV. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT HELD THAT APPELLANT WAIVED HIS PRIVILEGE UNDER RCM 504(b) CONCERNING COMMUNICATIONS MADE TO HIS WIFE.
V. WHETHER DR. MORALES, AN EXPERT FOR THE PROSECUTION, IMPROPERLY COMMENTED ON THE “FUTURE DANGEROUSNESS” OF APPELLANT WHEN HE DID NOT HAVE AN ADEQUATE BASIS TO FORM AN OPINION ON THE SUBJECT.
We hold that the lower court erred in applying the statute of limitations in
I. STATUTE OF LIMITATIONS
A. Background
The charges against appellant arose from his sexual relationship with his wife‘s niece, VR. Appellant‘s wife was VR‘s guardian in the Philippines, and the child lived with the couple for more than a year when she was about 8 years old. This arrangement ended when appellant was transferred back to the United States in August 1988. Appellant continued the relationship with VR after the move by corresponding with her and visiting her several times over the years. The nature of the relationship between appellant and VR was discovered by appellant‘s wife when she read some of the correspondence in 1994.
Appellant was charged with 11 offenses stemming from acts committed during the 7-year affair.1 The charges were received by the summary court-martial convening authority on February 2, 1996. Three of the offenses—rape, one specification of sodomy, and one specification of indecent acts—were alleged to have been committed between August 1, 1987, and August 31, 1988. At trial, appellant moved to dismiss these charges as barred by the 5-year statute of limitations in
On appeal, the Government conceded at the court below that the military judge erred by applying
B. Consideration of Generally Applicable Statutes in the Military Justice System
The Constitution grants Congress “plenary control over rights, duties, and responsibilities in the framework of the Military Establishment, including regulations, procedures, and remedies related to military discipline.” Weiss v. United States, 510 U.S. 163, 177, 114 S.Ct. 752, 760, 127 L.Ed.2d 1 (1994); see
Although there are many similarities between civilian criminal proceedings and our own, and although we frequently look to civilian statutes for guidance, the military and civilian justice systems are separate as a matter of law. See id. Amendments to Title 18 of the U.S.Code (the Federal Criminal Code), changes to the Federal Rules of Criminal Procedure, and changes to the Federal Rules of Evidence “do not directly affect proceedings under the Uniform Code of Military Justice except to the extent that the Code or the Manual for Courts-Martial specifically provides for incorporation of such changes.” Id.; see, e.g.,
Congressional intent to separate military justice from the federal criminal system, evidenced by our distinct and comprehensive criminal code, requires us to “exercise great caution in overlaying a generally applicable statute specifically onto the military system.” Dowty, 48 MJ at 111. Employing that cautious approach in Dowty, we decided that it was necessary to apply the integral, procedural aspects of the Right to Financial Privacy Act because the tolling provision at issue was directly tied to the beneficial provisions of that statute, which had already been implemented by the Department of Defense and judicially applied to servicemembers.
Dowty‘s status as an exception which proves the rule of separateness is underscored not only by the limiting language of that opinion, but also by our decision in United States v. Spann, 51 MJ 89 (1999). In Spann, we declined to apply § 502 of the Victims’ Rights and Restitution Act of 1990,
Issue I raises the question of whether the statute of limitations in the Victims of Child Abuse Act, currently codified at
Subject to exceptions not at issue in this case,
[A] person charged with an offense is not liable to be tried by court-martial if the offense was committed more than five years before the receipt of sworn charges and specifications by an officer exercising summary court-martial jurisdiction over the command.
This provision was last amended in 1986, when the limitation period was increased from 2 to 5 years. National Defense Authorization Act for Fiscal Year 1987, Pub.L. No. 99-661, § 805(a), 100 Stat. 3816, 3908 (1986).
The other statute of limitations at issue in the present case,
In addition to the various funding mechanisms and specialized programs established by the VCAA, Subtitle D created rights for victims of child abuse, as detailed in § 225 of the Act. Section 225 contained ten substantive parts, codified at
The provision at issue in the present appeal is subsection (k), currently codified at
No statute of limitations that would otherwise preclude prosecution for an offense involving the sexual or physical abuse of a child under the age of 18 years shall preclude such prosecution before the child reaches the age of 25 years.
Congress did not expressly address the relationship of this provision to the UCMJ in either the language of the VCAA or its legislative history.
We begin our consideration of the applicability of the VCAA‘s statute of limitations to the UCMJ by reading this provision in context—as one subsection of
The statute of limitations in
We specifically reject the Government‘s suggestion that because there is no language in the VCAA which states that it applies only in federal district courts or that it does not apply in courts-martial, we should adopt the statute of limitations in the VCAA. The enactment and modification of federal criminal justice legislation has become one of the most significant areas of congressional activity. The Government‘s approach would require us to apply any broadly-worded, federal criminal law amendment to the military justice system, regardless of its impact on the powers of commanders and the rights of servicemembers. Although Congress from time to time has stated that some statutes within Title 18 do not apply to the UCMJ, this has not been a regular or consistent drafting practice, and we decline to insist that Congress—in dealing with civilian criminal law matters—must expressly exempt courts-martial from the coverage of broadly worded statutes. See Dowty, supra at 109.
We hold that the court below erred when it applied the statute of limitations codified at
II. PRODUCTION OF WITNESSES
A. Legal Requirements
B. Appellant‘s Requests for Production
Appellant made pretrial requests, and submitted pretrial motions, for the production of three witnesses: Mr. Juanito Perez, Special Agent Ernest O. Joy, and Mr. Thomas Richter. The factual and legal considerations with respect to each requested witness are considered separately below.
1. Mr. Juanito Perez
In support of the request for Mr. Perez, defense counsel stated that the proposed witness had known the victim‘s family from 1987-1991. According to defense counsel, VR claimed that Mr. Perez had raped her when she was 10 years old. Defense counsel asserted that Mr. Perez would testify that the rape complaint was false and that he would provide an opinion on VR‘s character for untruthfulness. Defense counsel had not talked with Mr. Perez and relied upon statements Mr. Perez made to VR‘s aunt to support his assertions.
The military judge denied the motion to produce Mr. Perez. In a written ruling, the judge held the defense had failed to show that the testimony was relevant and material. The military judge found that there was an insufficient foundation for an opinion as to VR‘s truthfulness, that Mr. Perez‘s testimony would be inadmissible as extrinsic evidence under
We hold that the military judge did not abuse his discretion in denying the request for Mr. Perez. Testimony from Mr. Perez concerning the rape allegation made against him by VR, as described by defense counsel, would have been irrelevant and would have provided an insufficient basis upon which to attack VR‘s credibility. The allegation against Mr. Perez and his unsurprising denial had no bearing on the validity of VR‘s allegations against appellant, and they would not have established a motive on VR‘s part to fabricate claims against appellant. See United States v. Velez, 48 MJ 220, 227 (1998). This prior rape allegation falls short of developing a relevant history of false sexual complaints by VR.
2. Special Agent Ernest O. Joy
Defense counsel requested the presence of Special Agent Joy, who had interviewed VR after the allegations of appellant‘s abuse came to light, to attack her credibility. Defense counsel claimed that Special Agent Joy would testify about VR‘s poor recall of time frames, coaching by VR‘s mother, prior inconsistent statements by VR, and the fact that VR was punished for her relationship with appellant. Trial counsel countered by introducing an affidavit from Special Agent Joy indicating that he would not support the claims of poor time-frame recall, coaching, or inconsistency. The affidavit also established that Special Agent Joy had no personal knowledge of VR being punished for her relationship with appellant. The military judge denied the motion to produce Special Agent Joy, specifically finding that “there has been no showing of relevance and necessity sufficient to require his testimony.”
The military judge did not abuse his discretion by denying the request to produce Special Agent Joy. Although poor recollection, coaching, and prior inconsistent statements could have reflected negatively on the truthfulness of VR‘s trial testimony, the mili-
3. Mr. Thomas Richter
Defense counsel requested Mr. Thomas Richter to testify about VR‘s home environment prior to living with appellant. According to the defense proffer, Mr. Richter would have testified that VR‘s parents ran a combination bar-brothel, that VR was often in the bar-brothel, and that VR mimicked suggestive or erotic conduct that she observed there. Defense counsel argued that this testimony explained where a child such as VR would obtain sexual knowledge beyond her years and explained how VR could fabricate sexual misconduct allegations against appellant. The military judge denied the request for Mr. Richter, ruling that “any probative value that might be existent here is substantially outweighed by the danger of confusion and misleading the court members and inflaming them against the character of the alleged victim in this case.”
Defense counsel renewed the request for Mr. Richter after VR testified. He asserted that the door to the relevance of Mr. Richter‘s testimony had been opened when VR testified that she had gone to live with appellant because it was safer and because her mother worked at night. The military judge found that the reasons VR may have moved in with appellant were not relevant, and specifically stated, “The information relevant to this is speculative, remote in time, collateral, and any minimal probative value is substantially outweighed by the danger of unfair prejudice.”
We agree with the military judge that Mr. Richter‘s testimony was not relevant. Assuming that Mr. Richter observed VR in a bar-brothel run by her parents, his testimony could not have imparted anything about what VR actually observed, and could not have revealed anything about what sexual matters VR understood when she was 6 years old, or what sexual knowledge she obtained at that time. Even assuming that VR could have gained some sexual knowledge by observation in a bar or brothel, the court members would have been left to speculate about the nexus between those observations, the sexual knowledge VR might have had when she was 6, the knowledge she had when she was 15 (the period during which the claims against appellant were investigated), and the knowledge she had when she was 17 and testifying at appellant‘s court-martial.
III. CROSS-EXAMINATION OF THE VICTIM
A. Background
At an initial session under
A replacement military judge was appointed after the initial military judge was transferred. The new judge considered two motions in limine by trial counsel. The first sought to prevent any mention at trial of the bar-brothel in which VR may have observed
The second motion in limine made by trial counsel raised the same issue ruled upon by the first military judge at the initial Article 39(a) session—preventing defense counsel from questioning VR about the rape allegation against Mr. Perez. Defense counsel argued that the prior false allegation of rape against Mr. Perez was relevant to VR‘s credibility and was a proper subject for cross-examination. Trial counsel responded that the only indication that the allegation was false was the denial by Mr. Perez, the alleged perpetrator, and that this evidence would simply open up extensive collateral litigation. The military judge ruled:
With regard to the government motion in limine to preclude the defense from cross-examining the alleged victim, [V], under
M.R.E. 608(b) about her alleged rape by Mr. Juanito Perez, the court fails to find sufficient basis exists to challenge the witness‘s truthfulness on this matter based solely upon the denial of the incident by the alleged perpetrator. Moreover, the court finds that the details of this unrelated rape are collateral in nature, not relevant or material to a matter in issue in this case and that any minimal probative value is substantially outweighed by the danger of unfair prejudice and would lead to confusion of the members.Should more details be brought forth during the course of the trial that causes defense to believe that a more sufficient basis has been established on this matter, the defense may ask for a 39(a) session prior to the beginning of cross-examination of [V], and ask the court to revisit the issue.
After VR‘s direct testimony, defense counsel urged that the door had been opened to cross-examination on the subject of the bar-brothel. Specifically, defense counsel urged that VR‘s comments about moving in with appellant because it would be “safer” for her, comments about her mother working at night, and comments indicating that VR thought sexual intercourse was people kissing opened the door to clarifying those matters for the members and providing this information so that the members could assess VR‘s credibility.
The military judge denied the request to cross-examine VR about these matters. He specifically found them to be “not relevant” as well as “speculative, remote in time, collateral, and any minimal probative value is substantially outweighed by the danger of unfair prejudice.”
B. Confrontation and Cross-Examination of Witnesses
The Sixth Amendment protects an accused‘s right to confrontation and cross-examination: “In all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him.” See Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); United States v. Anderson, 51 MJ 145 (1999).
A military judge‘s ruling on the admissibility of evidence is reviewed for an abuse of discretion. United States v. Schlamer, 52 MJ 80, 84 (1999); United States v. Johnson, 46 MJ 8, 10 (1997). A decision to admit or exclude evidence under
C. Discussion
We agree with the Court of Criminal Appeals that the military judge did not abuse his discretion. The substance of Mr. Perez‘s statement, proffered from a secondhand source, amounted merely to his denial of an unrelated rape accusation made by the victim. As the military judge ruled, the accusation against Mr. Perez was irrelevant to the trial, provided an insufficient basis upon which to attack VR‘s credibility, had no bearing on the validity of the allegations involving appellant, and did not establish a motive on VR‘s part to fabricate allegations against appellant.
In the context of limiting cross-examination of a witness, we have held that “[t]he mere filing of a complaint is not even probative of the truthfulness or untruthfulness of the complaint filed.... Thus, its relevance on the question of credibility of a different complaint in an unrelated case, such as appellant‘s, escapes us.” Velez, supra at 227 (citation omitted). The record in this case reflects nothing more than a mere complaint of rape made by the victim against Mr. Perez; defense counsel proffered no evidence showing the complaint to be false, other than the unsurprising denial by Mr. Perez. The military judge refused to allow defense counsel to open an inquiry into whether the other rape occurred or whether the victim lied about it when counsel had not established a basis to do so. There was no abuse of discretion in precluding cross-examination into such collateral matters, and appellant has demonstrated no basis upon which to conclude that the ruling was “arbitrary, fanciful, clearly unreasonable,” or “clearly erroneous.” United States v. Miller, supra.
We also agree that cross-examination about a bar-brothel was not relevant to any fact in issue. The reason that VR moved in with appellant, her uncle, was not a fact in issue and did not bear on any matter of consequence in the case. Similarly, even assuming that she moved in with appellant to escape the environment of a bar-brothel, that is a fact that does not bear upon VR‘s credibility.
Defense counsel failed to show a causal connection between the bar-brothel and VR‘s credibility at appellant‘s court-martial. VR was 17 years old when she testified. What she might or might not have observed in a brothel at 6 or 7 years of age was not shown to have had any influence upon her understanding of sexual matters when she testified nearly 10 years later. She was no longer a child of tender years. It would be mere speculation to determine what, if anything, she observed in the bar-brothel 10 years earlier shaded her trial testimony or motivated her to testify falsely against appellant.
We also agree with the military judge‘s balancing assessment pursuant to
IV. CONFIDENTIAL COMMUNICATIONS BETWEEN SPOUSES UNDER MIL.R.EVID. 504(b)
A. Background
Appellant engaged in intimate correspondence with VR for approximately 6 years after he was transferred away from the Philippines. More than 100 pages of correspondence between the two were admitted at trial. The sexual nature of appellant‘s rela-
After reading the letter, Mrs. McElhaney called appellant, who was on temporary duty at the time, and demanded an explanation. According to Mrs. McElhaney, appellant told her that he was in love with their niece, VR, that the relationship had been going on for a long time, and that the two had attempted intercourse on one occasion. Mrs. McElhaney also sent VR‘s parents a copy of the letter. Shortly thereafter, appellant wrote a lengthy letter to VR‘s parents, confessing that he and VR had been in love for a long time, detailing their “stolen kisses,” and reassuring her parents that the relationship was not sexual. Appellant also wrote a letter to VR, advising her that her aunt and parents now knew about their relationship. As he phrased it, “Well sweetheart, the cat is out of the bag so to speak. Nena read the letter you wrote to me and she also knows that you and I have been in love with each other for years” and “when I return home to Japan, I will keep no secrets about you and me. Well, maybe a few, but I‘m going to tell her how much I love you and how long we‘ve been at this.”
The substance of appellant‘s conversation with his wife became an issue at trial when appellant asserted the marital confidential communications privilege in
The court below rejected the military judge‘s reasoning, relying upon United States v. Massey, 15 USCMA 274, 35 CMR 246 (1965). The court instead found that the statement was admissible because appellant had waived the privilege by disclosing essentially the same information in his letters to VR and her parents. 50 MJ at 830.
B. The Marital Communications Privilege
Many of the evidentiary privilege rules derived from the common law are codified in the military justice system. Compare
(1) General rule of privilege. A person has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, any confidential communication made to the spouse of the person while they were husband and wife and not separated as provided by law.
(2) Definition. A communication is “confidential” if made privately by any person to the spouse of the person and is not intended to be disclosed to third persons other than those reasonably necessary for transmission of the communication.
This rule requires three conditions to be met for the privilege to be upheld: (1) a communication, (2) intended to be confidential, (3) between married persons not separated at the time of the communication. United States v. Peterson, 48 MJ 81, 82 (1998). This privilege may be waived under
The decision to admit evidence is reviewed for an abuse of discretion. Schlamer, supra. Whether a conversation is privileged is a mixed question of law and fact. United States v. Napoleon, 46 MJ 279, 284 (1997). To find an abuse of discretion requires more than a mere difference of opinion—the challenged ruling must be “arbitrary, fanciful, clearly unreasonable,” or “clearly erroneous.” Miller, 46 MJ at 65; Travers, 25 MJ at 62.
C. Discussion
The narrow question posed by this issue is whether elliptical references, voluntarily made to a third party, to the content of a marital communication amount to a disclosure sufficient to waive the privilege under
The context of the purported disclosure is key to determining whether an accused has waived the marital communications privilege. The holder must voluntarily disclose a significant part of the matter “under such circumstances that it would be inappropriate to allow the claim of privilege.”
Appellant‘s willingness to characterize the substance of his conversation with his wife voluntarily to third parties is highlighted in his letter to VR‘s parents. In that letter, he denies having a sexual relationship with VR and specifically notes “stolen kisses“—details that correspond with his wife‘s account of their conversation. We agree with the lower court that appellant‘s successive, voluntary disclosures to VR and her parents, viewed in the particular factual context of this case, revealed a “significant part” of his communication to his wife and constitute waiver of his marital communications privilege.
V. EXPERT‘S TESTIMONY ON REHABILITATIVE POTENTIAL AND FUTURE DANGEROUSNESS
A. Background
The Government presented one witness for its sentencing case, Dr. Morales, a child psychiatrist, to testify on appellant‘s rehabilita-
Dr. Morales testified before the members that appellant met the criteria for pedophilia and that his risk of reoffending was high. As to rehabilitative potential, he testified:
Pedophilia in general has a very poor prognosis. All the research shows that the best that one could hope for would be for somebody to get to the point in their lives where they are so afraid of the legal system that they may not act on their urges or impulses, or that the actual urges or impulses go away completely is very unlikely [sic], so that people around this person is [sic] always at risk.
After the military judge pointed out that this statement was a generalization and asked the witness to talk specifically about appellant, Dr. Morales added:
It‘s consistent with a poor prognosis would be [sic] that the person was brought in by the legal system. A good prognosis would be somebody who is so disturbed by their behavior that they sought help before the legal system had to intervene. So, based on that, he meets the criteria for somebody with a poor prognosis.
The court below affirmed the military judge‘s ruling, noting that future dangerousness is an appropriate consideration for an opinion on rehabilitative potential and the fact that Dr. Morales never examined appellant went to the weight of his testimony on pedophilia, not its admissibility. 50 MJ at 831.
B. Discussion
When counsel has objected to testimony, we review a military judge‘s ruling on the admissibility of expert testimony for an abuse of discretion. Houser, 36 MJ at 397. The scope of expert testimony is governed by
The military judge allowed Dr. Morales to testify that appellant exhibited characteristics in common with pedophiles and to offer an opinion on appellant‘s future dangerousness based upon those characteristics. He allowed this despite the fact that Dr. Morales was a child psychiatrist, not a forensic psychiatrist, had not examined appellant or reviewed his medical or personnel records, and had testified that he could not render a diagnosis of pedophilia without examining appellant. Although the lack of contact with an accused bears upon the weight to be given to an expert‘s testimony, not its admissibility, United States v. Stinson, 34 MJ 233, 239 (CMA 1992), there are additional factors
Dr. Morales testified that he had no information about appellant‘s medical history because he had not reviewed any medical or personnel records. Testimony that appellant‘s behavior was consistent with pedophilia amounted, for all practical purposes, to labeling appellant a pedophile because Dr. Morales went on to give a prognosis for rehabilitative potential that was premised on that assumption.3 Furthermore, he gave generalized testimony about the rehabilitative potential of pedophiles, did not indicate the source of this information (e.g., personal experience, studies, or literature), and did it little to make a specific link with appellant when the military judge noted the error, as the quoted passages above indicate.
The military judge erred by allowing Dr. Morales to testify about the future dangerousness of appellant as related to pedophilia. Cf. United States v. Latorre, 53 MJ 179 (2000) (Government did not lay an adequate foundation for expert‘s testimony regarding rehabilitative potential where expert testified generally about his “studies“). If, as the court below noted, “[e]ven a layman, when given [Dr. Morales‘s] definition, could conclude, based upon the facts in evidence, that the appellant‘s behavior with [VR] met these criteria,” it is difficult to see how Dr. Morales‘s testimony on this point offered expert knowledge to aid the court. See
It is not necessary to determine whether the admission of Dr. Morales‘s testimony “materially prejudiced the substantial rights” of appellant.
VI. CONCLUSION
The decision of the United States Air Force Court of Criminal Appeals affirming the findings of guilty of specification 1 of Charge I and specification 1 of Charge IV, and the sentence, is reversed. The findings of guilty of specification 1 of Charge I and specification 1 of Charge IV are set aside and those specifications are dismissed. The record of trial is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals. That court may reassess the sentence or order a sentence rehearing.
CRAWFORD, Chief Judge (concurring in part and dissenting in part):
I concur with the majority‘s decisions and reasoning with regard to Issues I, II, and III, with the dismissal of specification 1, Charge I, and specification 1, Charge IV, and with the decision to affirm the remainder of the findings. Finally, I agree with so much of the majority conclusion as remands this case to the Court of Criminal Appeals for that court to reassess the sentence or refer the case to a convening authority to hold a rehearing on appellant‘s sentence.
Regarding Issue IV, I agree with the majority that appellant‘s voluntary disclosures in the context of this case constitute a waiver
Finally, as to Issue V, I find no error in the military judge‘s decision to admit Dr. Morales‘s testimony on appellant‘s rehabilitative potential.
A military judge‘s decision to admit evidence, to include the testimony of an expert witness, is reviewed for abuse of discretion. United States v. Raya, 45 MJ 251, 252 (1996); United States v. Sullivan, 42 MJ 360, 363 (1995);
“Absent a prohibition in the RCM 1000 series, Manual [supra,]... the analytical model for admissibility of expert testimony is set forth in United States v. Houser, 36 MJ 392, 397 (CMA [1993]).” United States v. Prevatte, 40 MJ 396, 397 n. * (CMA 1994). Dr. Morales‘s testimony concerning victim impact was admissible under
During the sentencing phase of a court-martial, opinion evidence on the issue of rehabilitation potential is admissible.
Expert testimony is permitted in the form of opinion evidence, if the expert‘s specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue.
Appellant does not contend that expert testimony concerning future dangerousness and lack of rehabilitative potential of a pedophile is per se inadmissible. To the contrary, this Court has found such testimony to be both relevant and reliable. See United States v. Stinson, 34 MJ 233 (CMA 1992); United States v. Williams, 41 MJ 134 (CMA 1994); see also United States v. Scott, 51 MJ 326, 330 (1999).
Counsel‘s attack in this case on Dr. Morales‘s testimony is bottomed on a failure of the Government to establish a proper foundation for his opinion. Dr. Morales never met appellant; never reviewed appellant‘s medical or personnel records; and based his opinion on observations at trial (where appellant did not testify) and two interviews (one with the victim and the other with the victim‘s mother), as well as some of the passionate letters which appellant wrote to the victim. Accordingly, the defense alleges Dr. Morales had no foundational basis on which to opine about appellant‘s “future dangerousness.”
Prior to direct examination, trial counsel established Dr. Morales as an expert witness in the field of child psychology. Dr. Morales is a medical doctor with additional specialized training in psychiatry. His first 4 years of residency training included 14 months in inpatient psychiatry, 4 months in inpatient child psychiatry, and 2 months in the psychiatric emergency room. In addition, his 5th year of residency consisted entirely of work in outpatient child and adolescent psychiatry. In his postgraduate years, Dr. Morales served as attending psychiatrist at the National Naval Medical Center, Staff Psychiatrist at Rikers Island Prison, a Qualified Examiner on the Westchester Medical Center Crisis Team, and Psychiatrist On Call at the Danbury Hospital Emergency Room. Dr. Morales has treated “hundreds” of children, about 20 percent of whom were sexual abuse patients. He was assigned at the time of trial as a child psychiatrist at the Yokosuka Naval Hospital.
Dr. Morales never diagnosed appellant as a pedophile, as made clear by the record of trial. In fact, Dr. Morales categorically stated that he could not render a diagnosis of appellant because he had not examined him. Dr. Morales stated only that appellant met the Diagnostic and Statistical Manual of Mental Disorders (DSM IV) criteria for pedophilia.
Clearly, his status as an expert witness enabled him to render this opinion. Based on appellant meeting the criteria for pedophilia, in addition to the insight which Dr. Morales had gained of appellant through reviewing letters that appellant had written to the victim, and interviewing the victim and her mother, Dr. Morales fairly noted that appellant had an inability to recognize the extent of his problem. An inability to recognize the extent of one‘s problem certainly translates into a lack of rehabilitative potential, as well as perhaps a future menace to society, in general, and the victim in particular. See
As did the court below, we should apply the test established in United States v. Stinson to determine the admissibility of Dr. Morales‘s expert testimony. See 50 MJ at 831. Clearly, the witness was qualified as an expert. The third prong of the Stinson test was met, as the material on which Dr. Morales relied in fashioning his opinion was both relevant and factually based. The fourth prong of the Stinson test, which we added in United States v. Banks, 36 MJ 150 (CMA 1992), was met in this case, as the judge conducted a
What remains for resolution is the second prong of Stinson: Was the testimony within the limits of Dr. Morales‘s expertise? As a medical doctor with additional specialization in psychiatry, Dr. Morales was clearly able to define pedophilia and objectively determine that appellant‘s intense desire for the victim (who was 9 years old when the relationship started) not only fit within the boundaries of the definition of pedophilia, but also had a future impact on the victim. See
SULLIVAN, Judge (concurring in part and dissenting in part):
I disagree with the majority‘s decision to dismiss appellant‘s conviction on specification 1 of Charge I and specification 1 of Charge IV and its decision to remand for a rehearing on sentence or for a reassessment of sentence. I would affirm the lower appellate court‘s decision, although I do not join its rationale on all the questions of law raised in this case.
Turning to Issue I, I would affirm the decision of the lower appellate court because, in my view, the statute of limitations in the Victims of Child Abuse Act of 1990, now codified at
Regarding Issue III, I disagree with the majority opinion that the military judge did not err when he restricted the cross-examination of the victim.
On Issue IV, I would hold that appellant‘s statements to his wife were not protected by the husband-wife privilege because they fell within an exception to
Finally, on Issue V, I would hold that the military judge did not abuse his discretion in ruling that Dr. Morales was qualified and had an adequate basis for commenting on appellant‘s lack of rehabilitative potential. (R. at 578, 581-82). There is no requirement that a psychotherapist expert personally evaluate an accused before rendering an opinion on his rehabilitative potential. See Barefoot v. Estelle, 463 U.S. 880, 903–04, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983); United States v. Stinson, 34 MJ 233, 239 (CMA 1992); United States v. Williams, 41 MJ 134, 138 (CMA 1994);