*1 STATES, Appellee, UNITED
Rogelio PABLO, Sergeant, Staff Army, Appellant.
U.S.
No. 99-0681.
Crim.App. 9700481. No. Appeals Court
the Armed Forces.
Argued Feb. 2000. Aug.
Decided 2000.
GIERKE, J., оpinion delivered Court, EFFRON, J., in which and EVER- S.J., ETT, joined. CRAWFORD, C.J., and SULLIVAN, J., dissenting opin- filed a each ion. Appellant: Captain
For Blair T. O’Connor (argued); Major H. Odegard, Colonel Adele Morris, Major R. Scott Kirsten V.C. (on brief). Brunson Appellee: Captain For M. Katherine (argued); Estey Kane Colonel Russell S. (on Eugene Lieutenant Colonel R. Milhizer brief); Captain E. Mary Braisted. Judge opinion GIERKE delivered the the Court. charged sodomy
Appellant was with a under child violation of Article Military Justice, Uniform Code of 10 USC general composed A court-martial him, officer and members convicted enlisted *2 appel- saw peeked under and pleas, the blindfold contrary to his of the lesser-included pants lant’s “down on the floor.” She testi- committing an indecent with a offense of act blindfold, 134, UCMJ, took walked child, 10 fied that she off in violation of Article room, had and KL what adjudged approved and out told 934. The USC told happened. that she also dis- She testified provides for a bad-conduct sentence appellant’s she returned to the wife when enlisted charge and reduction to the lowest house, said did appellant’s that wife she grade. Appeals af- but The Court Criminal Appellant’s her. wife told anoth- not believe findings and firmed the sentеnce. EB her baby-sitter er that had told some- thing upset appellant. EB testified that following granted Court review the Our mother, was she did not tell because she her issue: trouble,” “might get in that she afraid THE MILITARY JUDGE’S WHETHER counselor, Ms. told student that she her OF BY ALLOW- ABUSE DISCRETION Myra Earls. TO ING MS. MYRA EARLS TESTIFY cross-examination, EB On testified THE REGARDING OUT-OF-COURT if appellant. she afraid of When asked was THE [EB] STATEMENTS OF UNDER appellant’s she went back house after EXCEPTION, RESIDUAL HEARSAY incident, responded, “I hide-and-seek she 803(24), HARM- MIL.R.EVID. WAS NOT don’t know.” A REASON- LESS ERROR BEYOND DOUBT, ABLE DUE ITS TO SUBSTAN- begun, had Before the trial on the merits PANEL TIAL INFLUENCE ON THE conditionally granted military had FINDINGS, WHERE THE MEMBERS’ preclude motion in limine to NOT GOVERNMENT’S CASE WAS counselor, Ms. of EB’s student STRONG AND WHERE THE PANEL by the Earls. The was offered DID AP- MEMBERS NOT CONVICT prosecution as under Mil. residual PELLANT OF THE CHARGED OF- 803(24), Courts-Martial, Manual for R.Evid. FENSE. (1995 ed.).* military judge preliminarily ruled that Ms. Earls’ tes below, For the out we reasons set reverse. admissible, timony it was because was testimony; probative not more than EB’s own Facts ruling hearing but he his and conditioned Appellant’s baby-sitting wife was the vic- evaluating EB’s EB, tim, 7-year-old girl, 6-year- and her testimony on and cross- After EB’s direct brother, RL, during old the Christmas break examination, prosecution asked the mili- Appellant’s from school. wife left their military tary judge to reconsider. The errand, apartment to chil- leaving run an ruling, finding EB’s his earlier reversed appellant’s dren care. EB testified that “vague foggy” and RL, she, appellаnt, daughter, and sodomy. surrounding the events playing apart- hide-and-seek in the “it,” years appellant When EB was took her Ms. Earls that she has 5 ment. testified experience and met EB in a into the bedroom blindfolded her. She as counselor. She game, counseling group that in the of divorced testified hide-and-seek “one for children person parents. has to then all the The mother of Ms. count and others student told hide,” go but that she did not count because Earls EB accused a friend’s hus- had putting penis told mouth. The her to. She testified that band of his her mouth, appellant put hugged EB chocolate in her and alsо said that her woman pants “put pee- pulled inappropriately, then down his and his and that EB’s mother had pee “boyfriends in EB [her] mouth.” testified that she out.” Concerned that She abused, might “pee-pee” it because have been Ms. Earls went knew she * 1, 1999, 803(24) by operation 1102. Effective June Fed.R.Evid. 807 became of Mil.R.Evid. military place applicable to the of Mil.R.Evid. brought away EB’s EB to office from classroom her JW testified that she was home questioning. began Ms. Earls with small the Christmas break from ques- talk January asked EB a number of then December until This testimo- boyfriends tions her her about mother’s ny EB’s contradicted statement to Earls life at EB if home. She asked present during that JW was the hide-and- *3 boyfriends mother’s had EB “bothered” her. game. seek JW also after testified that she responded, “No. I see EB never them.” returned, she that EB would “al- observed said, then ‘You know what?” and volunteered ways jump [appellant] play on to and want appellant “put that had his wiener in her “hang with him.” EB would him a [sic] unto anyone mouth.” if When Ms. Earls asked lot” and “demand his attention.” present, else was EB her appel- told that KL EB’s description contradicted KL, daughters, present. lant’s JW and were game. Contrary hide-and-seek to EB’s testi- interviewing again After Ms. Earls KL mony, that EB testified counted to questioned “basically repeated EB. She come,” said, “Ready or not here and then story,” but added “a more detail.” The little out came of the bedroom and found her following day, Ms. Earls EB a interviewed brother, RL. KL also EB’s contradicted tes- making third EB time. She knew that was timony appellant put that KL she told charge, serious and she “wanted to sure.” be KL penis his her mouth. that she testified again “repeated EB story.” the same Ms. thought EB that “her said brother stuck his police. Earls then notified the Ms. Earls thing in her mouth —that her brother showed EB testified that was comfortable thing his to her.” mouth, questioning, but she coverеd her red, turned and seemed embarrassed when The court-martial’s deliberations on find- appellant’s she pants said that were down. ings interrupted several times when court members for asked additional informa- cross-examination, On Ms. Earls testified tion instructions. The court-martial first that EB said appellant’s never that she saw p.m. to at 4:44 March closed deliberate on 19. penis, nor she it. did describe p.m., At 6:05 the members asked several (SGT) Sergeant Arnold Carter testified evidentiary questions, which were addressed appellant. that he for works He testified testimony replaying the of KL. After the appellant that told him EB had him accused replayed, the court-martial ad- finger of sticking his in her mouth. SGT journed overnight and reconvened at 8:30 appellant Carter telling asked if EB was time, a.m. March At that on court truth, appellant responded, do “What questions members raised about lesser- you think. Trust me.” included offense. The then asked members go- EB’s EB enjoyed mother testified that questions about direct circumstantial evi- ing appellant’s to home baby-sitting, dence, military repeated and the EB KL “very that good had become topics. instructions on those The members go- friends.” EB stopped She testified that a.m., deliberated frоm 8:37 a.m. 9:49 until ing appellant’s January to home on when they voting pro- when asked about police made EB’s “a mother aware of They at cedure. resumed deliberations 10:10 happened sexual situation that had to [EB]” they a.m. at 11:14 that and announced a.m. apartment. appellant’s at findings. had arrived at The members found cross-examination, On EB’s mother testi- sodomy guilty guilty not of but fied upset parents that EB was after by exposing an indecent act himself with adjustment problems divorced and had some desires, satisfy intent his lust or sexual that, January at school. She testified before violation Article UCMJ. expressеd any EB never concern about going appellant’s planned home and had Discussion “sleep over” at home. military
The case court held consisted the testimo- The below ny Appellant testify. KL. by admitting JW and did not Ms. Earls’ testimo- erred Adams, 44 Id.; MJ error was see also
ny. The court then held that the has the The Government it was harmless. nonconstitutional and that did Court, persuading that the error us appel- burden at 662-63. Before this find- on the have a substantial influence erred not the court below lant asserts Pollard, supra. ings. United finding error The Government harmless. ruling challenge court’s does lower foregoing princiрles, we Applying testimony, admissibility of Ms. Earls’ met its has not hold that the Government admitting it was error in asserts “grave leaving us in persuasion, burden Because has harmless. the Government heavi prosecution’s case rested doubt.” holding challenged lower court’s military judge ly on EB’s inadmissible, re- our foggy” about “vague and found her to the conclusion view is limited lower court’s *4 of offense. the the circumstances was United that the error harmless. See testimony by KL. was contradicted Her (CMA Grooters, 269, v. 272-73 States 39 MJ evidentiary questions indicat court members’ 1994). discrepancies about the between ed concern agree сourt below We the contrast, Ms. testimony. KL’s In EB’s and While er the error was nonconstitutional. clear, testimony provided lucid de hearsay im in the admission often rors of an described scription indecent act. She plicate right the of con Sixth Amendment suggesting in a EB’s demeanor manner frontation, the in this case provided Her truthfulness. also EB, opportunity to and he cross-examine consistently repeated EB had evidence Thus, effectively. used it this case involves three The court-mar her accusation times. than a denial inadmissible evidence rather findings suggest Earls’ testi that Ms. tial’s v. Pol of confrontation. Sеe United States may substantially its mony have influenced (CMA 1993) lard, (applying 38 MJ “grave we have deliberations. Because test for nonconstitutional error for admis erroneous doubt” about whether Ms. Earls’ prior sion of inconsistent statement where influ ly-admitted had a substantial testified); Lyons, declarant v. United States findings, we must reverse. ence on (CMA 1992) (plurality 36 MJ 188-89 opinion judges concluding with three Decision hearsay erroneous admission of evidence Army declar- The decision United States constitutional error because testified); Appeals reversed. of Criminal is Spotted ant War Court Cir.1991) (no Bonnet, (8th findings guilty and are set 933 F.2d the sentence rehearing A is testified aside. authorized. denial of confrontation where child on which but could not remember events based);
pretrial
statement
see also
CRAWFORD,
(dissenting):
Judge
Chief
Armstrong,
United States
dissent,
majority’s
because of the
mis-
(2000), citing
Charley,
United States
my
In
guided view of
law-of-the-case.
(10th Cir.1999) (counselor’s
1251, 1270
F.3d
opinion, the
did not abuse his discre-
testimony impermissibly vouching for credi-
finding
testimony neces-
Ms. Earls’
tion
bility of victims
as nonconstitutional
treated
sary,
employed
due to
tactics
error).
counsel.
The test
harmless error
is
in
“whether
error itself had substantial
RESIDUAL HEARSAY
Id., quoting
Pol
findings.
fluence” on
803(24),1
lard,
Manual for Courts-
quoting
38 MJ аt
Kotteakos v. Unit
Mil.R.Evid.
(1995
States,
Martial,
ed.),
750, 765,
provides
ed
66 S.Ct.
specifi-
so,
of a
if one is left
admission
L.Ed. 1557
“If
for the
doubt,
by any
cally
stand.”
of the other
grave
the conviction cannot
covered
99).
(effective 1 June
Mil.R.Evid. 807
Currently
803(24)(B).
exceptions
Furthermore,
when that statement has “circum-
is one of
guarantees
trustworthiness,
stantial
if the
involving “necessity”
those rare cases
where
(A)
court determines
the statement
testified,
present,
the victim is
has
and has
(B)
fact;
offered as evidence of a material
been cross-examined.
There is no issue
probative
point
the statement
is more
on the
materiality
about
or trustworthiness
for which it is offered than
other evi-
teacher,
EB’s statement
to her
Ms. Earls.2
dence
proponent
procure
which the
can
(C)
through
efforts;
gen-
reasonable
THE
LAW OF
CASE
purposes
eral
of these rules and the interests
justice
will best be served
admission of
The issues in this case center around the
the statement
into evidence.”
discussion
Appeals
the Court of Criminal
Earls’,
necessity
for Ms.
previously
Our
explored
pa-
Court has
counselor’s,
While the
hearsay exception
rameters
the residual
found some of
vague
EB’s
application
of the rule. See United
unclear, the court below found “that EB was
Powell,
States v.
(CMA 1986);
141MJ
particularly definite, clear,
unequivocal
Giambra,
United States v.
(CMA
very purpose for this Court was creat- which Townsend, see also States v. 49 MJ United higher ed. A is not bound court (1998); Taylor, States v. decisions of a subordinate court or Accordingly, I do n. As legal issues. said United we majority’s Williams, (CMA 1994): feel view of law-of- bound 135 n. MJ the-case. pre- does The law-of-the-case doctrine Court,
clude this
the case has been
once
*6
review,
granted
properly
for
from consid-
DEFENSE THEORY
ering an
of
erroneous conclusion
law made
being
keys
One of
to
coun-
the
an effective
Military
the Court of
Review. Seе
right
choosing
theory
sel is
the
of the case.
Operating
Christianson v.
Industries
Colt
ease,
any
In this
the defense
not choose
did
800, 817,
Corp., 486
108
S.Ct.
defenses,
example, acci-
of the affirmative
for
(1988).
Defense ing counsel’s cross-examination of EB the court members could conclude at trial was through negative short. No were asked inference that the failure to about EB’s encounter with in the report introduce such a showed the crime did bedroom. Defense counsel did ask the vic- Accordingly, not occur. the Government had timing tim about the right of the incident and report introduce the fact that a appellant’s stepdaughter, even, whether or not was made if the substance of that had a friend named Jessica. report was excluded. ajar by Since the door was left judge, Although directly has never Court em- strategy defense counsel’s was to do a braced the modern rule cases of perfunctory, innuendo-laced cross-examina witnesses, young children “the administration tion, attack the victim’s justice is served the admission of state- closing argument, and ask the finder of fact ments made in a more relaxed environment negative
to draw a series of inferences based possible without the harm of traumatic court- on omissions from 7-yeаr- of a encounter,” room DeNoyer, old victim. This tactic would not allow the (8th Cir.1987), 811 F.2d we have reply by Government a reopening chance to recognized importance of such a rule offering case and additional evidence. Kelley, supra. The necessi- Agard, Portuondo v. Cf. ty rule interpreted should not be as a rule of 1119, 146 S.Ct. L.Ed.2d 47 is, preference, that if the declarant is avail-
able, is not admissible and vice versa. DISCUSSION following factors establish the need for starting point analysis evi- (1) testimony: Ms. Earls’ the victim
dentiary issue is the abuse of discretion stan- (2) See, years age; under 10 Powell, physi- the lack of dard of e.g., review. 22 MJ at (3) activity; cal lapse evidence of sexual which states: adult; reporting activity of time in an Our review of the authorities convinces us (4) appellant’s family reluctance that the facts of individual cases will fre- testify. quently defy application of hard-and- Rather, fast rules. generally what must This rule is crucial because of what im- balancing variety occur is the aof of cir- pacts ability observe, on the of a witness to *7 unique cumstances particular to a case. remember, Certainly, memory and recall. observation, does not exist without and there children, yоung When more than other meaningful perception can be no and narra- victims, abuse, complain greater there is memory. young tion without What victims need for evidence that either corroborates or lack, ease, education, in experi- like this is negates the victim’s version of the abuse. ence, ability and the to verbalize. Addition- easily Child victims are attacked and often ally, memory goes time, especially stale with easily peripheral confused with details.3 Evi- children, young justifying with the need for dence which impor- shows state of mind is by the earlier statements the victim to tant. adults. Prior tо the admission of Ms. Earls’ testi-
mony, there early was no evidence of an excluding The cost of all three statements report (complaint) given clear, detailed to an adult. possibility is while the that the previously EB had told her KL jury problematic. friend imme- will mislead the is diately after the indecent assault by what had statements taken Ms. Earls were taken happened, got EB support but no from degree an individual with a Master’s in complaint. report guidance Without evidence of a counseling years’ experi- be- 5 properly If the defense counsel attacks a child victim’s admitted as soon as attack on a statement, credibility opening in his or her reha- Myers, child victim is mounted. See John E.B. et bilitating credibility during the victim’s the Gov- ah, Expert Testimony in Child Sexual Abuse Liti- ernment’s case in chief would not constitute im- 1, (1989). gation, 68 Neb.L.Rev. 92 proper bolstering. Rehabilitation is
363
See,
testify.
careful not to
from the defendant’s failure
enee as a counselor. She was
333,
Oregon,
98
e.g.,
Her
suggestive
taking
the statement.
Lakeside
be
(1978).
1091,
In this