Lead Opinion
delivered the opinion of the Court.
Aрpellant was charged with sodomy with a child under 12, in violation of Article 125, Uniform Code of Military Justice, 10 USC § 925. A general court-martial composed of officer and enlisted members convicted him,
Our Court granted review of the following issue:
WHETHER THE MILITARY JUDGE’S ABUSE OF DISCRETION BY ALLOWING MS. MYRA EARLS TO TESTIFY REGARDING THE OUT-OF-COURT STATEMENTS OF [EB] UNDER THE RESIDUAL HEARSAY EXCEPTION, MIL.R.EVID. 803(24), WAS NOT HARMLESS ERROR BEYOND A REASONABLE DOUBT, DUE TO ITS SUBSTANTIAL INFLUENCE ON THE PANEL MEMBERS’ FINDINGS, WHERE THE GOVERNMENT’S CASE WAS NOT STRONG AND WHERE THE PANEL MEMBERS DID NOT CONVICT APPELLANT OF THE CHARGED OFFENSE.
For the reasons set out below, we reverse.
Facts
Appellant’s wife was baby-sitting the victim, EB, a 7-year-old girl, and her 6-year-old brother, RL, during the Christmas break from school. Appellant’s wife left their apartment to run an errand, leaving the children in appellant’s care. EB testified that she, RL, appellant, and appellant’s daughter, KL, were playing hide-and-seek in the apartment. When EB was “it,” appellant took her into the bedroom and blindfolded her. She testified that in the hide-and-seek game, “one person has to count and then all the others go hide,” but that she did not count because appellant told her not to. She testified that appellant put chocolate in her mouth, and then pulled down his pants and “put his pee-рee in [her] mouth.” She testified that she knew it was his “pee-pee” because she peeked under the blindfold and saw appellant’s pants “down on the floor.” She testified that she took off the blindfold, walked out of the room, and told KL what had happened. She testified that she also told appellant’s wife when she returned to the house, but that appellant’s wife said she did not believe her. Appellant’s wife told another baby-sitter that EB had told her something that upset appellant. EB testified that she did not tell her mother, because she was afraid that she “might get in trouble,” but that she told her student counselor, Ms. Myra Earls.
On cross-examination, EB testified that she was afraid of appellant. When asked if she went back to appellant’s house after the hide-and-seek incident, she responded, “I don’t know.”
Before the trial on the merits had begun, the military judge had conditionally granted a defense motion in limine to preclude the testimony of EB’s student counselor, Ms. Earls. The testimony was offered by the prosecution as residual hearsay under Mil. R.Evid. 803(24), Manual for Courts-Martial, United States (1995 ed.).
After EB’s testimony on direct and cross-examination, the prosecution asked the military judge to reconsider. The military judge reversed his earlier ruling, finding that EB’s testimony was “vague and foggy” concerning the events surrounding the alleged sodomy.
Ms. Earls testified that she has 5 years of experience as a counselor. She met EB in a counseling group for children of divorced parents. The mother of a student told Ms. Earls that EB had accused a friend’s husband of putting his penis in her mouth. The woman also said that EB had hugged her inappropriately, and that EB’s mother had “boyfriends in аnd out.” Concerned that EB might have been abused, Ms. Earls went to
After interviewing KL, Ms. Earls again questioned EB. She “basically repeated the story,” but added “a little more detail.” The following day, Ms. Earls interviewed EB a third time. She knew that EB was making a serious charge, and she “wanted to be sure.” EB again “repeated the same story.” Ms. Earls then notified the police. Ms. Earls testified that EB was comfortable during the questioning, but she covered her mouth, turned red, and seemed embarrassed when she said that appellant’s pants were down.
On cross-examination, Ms. Earls testified that EB never said that she saw appellant’s penis, nor did she describe it.
Sergeant (SGT) Arnold Carter testified that he works for appellant. He testified that appellant told him EB had accused him of sticking his finger in her mouth. SGT Carter asked appellant if EB was telling the truth, and appellant responded, “What do you think. Trust me.”
EB’s mother testified that EB enjoyed going to appellant’s home for baby-sitting, and that EB and KL had become “very good friends.” She testified that EB stopped going to appellant’s home on January 12, when the police made EB’s mother aware of “a sexual situation that had happened to [EB]” at appellant’s apartment.
On cross-examination, EB’s mother testified that EB was upset after her parents divorced and had some adjustment problems at school. She testified that, before January 12, EB nеver expressed any concern about going to appellant’s home and had planned to “sleep over” at appellant’s home.
The defense case consisted of the testimony of JW and KL. Appellant did not testify. JW testified that she was away from home during the Christmas break of 1996, from December 20 until January 1. This testimony contradicted EB’s statement to Ms. Earls that JW was present during the hide-and-seek game. JW also testified that after she returned, she observed that EB would “always jump on [appellant] and want to play with him.” EB would “hang unto [sic] him a lot” and “demand his attention.”
KL contradicted EB’s description of the hide-and-seek game. Contrary to EB’s testimony, KL testified that EB counted to 10, said, “Ready or not here I come,” and then came out of the bedroom and found her brother, RL. KL also contradicted EB’s testimony that she told KL appellant had put his penis in her mouth. KL testified that she thought EB said that “her brother stuck his thing in her mouth — that her brother showed his thing to her.”
The court-martial’s deliberations on findings were interrupted several times when court members asked for additional information or instructions. The court-martial first closed to deliberate at 4:44 p.m. on March 19. At 6:05 p.m., the members asked several evidentiary questions, whiсh were addressed by replaying the testimony of KL. After the testimony was replayed, the court-martial adjourned overnight and reconvened at 8:30 a.m. on March 20. At that time, the court members raised questions about a lesser-included offense. The members then asked questions about direct and circumstantial evidence, and the military judge repeated his instructions on those topics. The members deliberated from 8:37 a.m. until 9:49 a.m., when they asked questions about voting procedure. They resumed deliberations at 10:10 a.m. and announced at 11:14 a.m. that they had arrived at findings. The members found appellant not guilty of sоdomy but guilty of an indecent act by exposing himself with intent to satisfy his lust or sexual desires, in violation of Article 134, UCMJ.
Discussion
The court below held that the military judge erred by admitting Ms. Earls’ testimo
We agree with the court below that the error was nonconstitutional. While errors in the admission of hearsay often implicate the Sixth Amendment right of confrontation, in this case appellant had the opportunity to cross-examine EB, and he used it effectively. Thus, this case involves inadmissible evidence rather than a denial of confrontation. See United States v. Pollard,
The test for harmless error is “whether the error itself had substantial influence” on the findings. Id., quoting Pollard,
Applying the foregoing principles, we hold that the Governmеnt has not met its burden of persuasion, leaving us in “grave doubt.” The prosecution’s case rested heavily on EB’s testimony. The military judge found her testimony “vague and foggy” about the circumstances of the alleged offense. Her testimony was contradicted by KL. The court members’ evidentiary questions indicated concern about the discrepancies between EB’s and KL’s testimony. In contrast, Ms. Earls’ testimony provided a clear, lucid description of an indecent act. She described EB’s demeanor in a manner suggesting truthfulness. Her testimony also provided evidence that EB had consistently repeated her accusation three times. The court-martial’s findings suggest that Ms. Earls’ testimony may have substantially influenced its deliberations. Because we have “grave doubt” about whether Ms. Earls’ erroneously-admitted testimony had a substantial influence on the findings, we must reverse.
Decision
The decision of the United States Army Court of Criminal Appeals is reversed. The findings of guilty and the sentence are set aside. A rehearing is authorized.
Notes
Effective June 1, 1999, Fed.R.Evid. 807 became applicable to the military in place of Mil.R.Evid. 803(24) by operation of Mil.R.Evid. 1102.
Dissenting Opinion
(dissenting):
I dissent, because of the majority’s misguided view of the law-of-the-case. In my opinion, the judge did not аbuse his discretion in finding Ms. Earls’ testimony necessary, due to the tactics employed by the defense counsel.
RESIDUAL HEARSAY
Mil.R.Evid. 803(24),
Our Court has previously explored the parameters of the residual hearsay exception and application of the rule. See United States v. Powell,
Most litigation in the residual hearsay arena involves whether the statement has the necessary indicia of reliability/guarantees of trustworthiness. See generally Idaho v. Wright,
LAW OF THE CASE
The issues in this case center around the discussion by the Court of Criminal Appeals concerning the necessity for Ms. Earls’, the counselor’s, testimony. While the judge found some of EB’s testimony vague and unclear, the court below found “that EB was particularly definite, clear, and unequivocal in her direct testimony.”
Now, however, the majority finds EB’s testimony leaves “grave doubts” concerning the conviction. Yet, despite the Government actively contesting the lower court’s conclusion that the trial judge erred, and despite appellate counsel being on notice, the majority refuses to relook at the admissibility of Ms. Earls’ testimony, hiding behind “the law-
The law-of-the-case doctrine, as interpreted by the majority, does not allow this Court to oversee the military justice system by pointing out when a lower court is erroneously applying the law. Such a view negates the very purpose for which this Court was created. A higher court is not bound by the decisions of a subordinate court or judge on legal issues. As we said in United States v. Williams,
The law-of-the-case doctrine does not preсlude this Court, once the case has been properly granted for review, from considering an erroneous conclusion of law made by the Court of Military Review. See Christianson v. Colt Industries Operating Corp.,486 U.S. 800 , 817,108 S.Ct. 2166 ,100 L.Ed.2d 811 ... (1988).
Conversely, when a case is remanded, the trial court is bound by the decisions of the higher court if there has been no change in the underlying facts. Jones v. Cassens Transport,
The majority’s erroneous view of the law-of-the-case doctrine further complicates our “charter” to oversee the lower courts by requiring that the respective judge advocates general certify an issue to this Court before we can determine whether the lower court erroneously applied the law. We need not speculate why judge advocates general do not certify more cases. While various judge advocates general have certified cases on behalf of the defense, see United States v. Diaz,
In the past, we have been inconsistent as to whether or not we are limited by the lower court’s conclusions, with which we may sometimes disagree, that error has occurred. Compare Williams,
DEFENSE THEORY
One of the keys to being an effective counsel is choosing the right theory of the case. In this eаse, the defense did not choose any of the affirmative defenses, for example, accident or alibi. Instead, the approach was to attack the 7-year-old victim’s veracity. Starting with voir dire and ending with closing arguments, the defense theory of the case was EB’s lack of credibility. Their theory was that you cannot tell when children are lying. During closing, the defense argued that “time frame wise [EB’s testimony] didn’t make sense,” and “the Government can’t ... follow-up as to the specific details,” including clothing and who was present.
The civilian counsel who represented appellant in state court on charges involving the same incident zealously represented him at trial. A large percentage of the court-martial record is devoted to a pretrial motion to suppress the victim’s statements to .a police officer and her statements to the school counselor, Ms. Earls. The judge exercised his discretion to exclude these statements in the first instance, but left the door open to admit them later.
Since the door was left ajar by the judge, the defense counsel’s strategy was to do a perfunctory, innuendo-laced cross-examination, attack the victim’s testimony during closing argument, and ask the finder of fact to draw a series of negative inferences based on omissions from the testimony of a 7-year-old victim. This tactic would not allow the Government a chance to reply by reopening the case and offering additional evidence. Cf. Portuondo v. Agard,
DISCUSSION
The starting point for analysis of any evidentiary issue is the abuse of discretion standard of review. See, e.g., Powell,
Our review of the authorities convinces us that the facts of individual cases will frequently defy the application of hard-and-fast rules. Rather, what must generally occur is the balancing of a variety of circumstances unique to a particular case.
When young children, more than other victims, complain of abuse, there is a greater need for evidence that either corroborates or negates the victim’s version of the abuse. Child victims are easily attacked and often easily confused with peripheral details.
Prior to the admission of Ms. Earls’ testimony, there was no evidence of an early detailed report (complaint) given to an adult. EB had previously told her friend KL immediately after the indecent assault what had happened, but EB got no support from that complaint. Without evidence of a report being made, the court members could conclude through negative inference that the failure to introduce such a report showed the crime did not occur. Accordingly, the Government had the right to introduce the fact that a report was made even, if the substance of that report was excluded.
Although this Court has never directly embraced the modern rule that in cases of young children witnesses, “the administration of justice is served by the admission of statements made in a more relaxed environment without the possible harm of traumatic courtroom encounter,” United States v. DeNoyer,
The following factors establish the need for Ms. Earls’ testimony: (1) the victim was under 10 years of age; (2) the lack of physical evidence of sexual activity; (3) the lapse of time in reporting the activity to an adult; and (4) the reluctance of appellant’s family to testify.
This rule is crucial because of what impacts on the ability of a witness to observe, remember, and recall. Certainly, memory does not exist without observation, and there can be no meaningful perception and narration without memory. What young victims lack, like in this ease, is education, experience, and the ability to verbalize. Additionally, memory goes stale with time, especially with young сhildren, justifying the need for the earlier statements by the victim to adults.
The cost of excluding all three statements is clear, while the possibility that the hearsay will mislead the jury is problematic. The statements taken by Ms. Earls were taken by an individual with a Master’s degree in guidance and counseling and 5 years’ experi
Other statements made by the victim are essential when there are questions raised concerning the lack of details, as stressed by the defense in this ease. See, e.g., United States v. Shaw,
If the factors mentioned in the argument which focused on the lack of specific details were raised during cross-examination, the federal courts would allow Ms. Earls’ statements to be admissible. Cf. United States v. Juvenile NB,
The defense did not set forth the negative inferences in their cross-examination, knowing they could be countered based on the judge’s rulings. Thus, in the case of a child victim, the other statements are admissible as positive evidence as to what happened, and as evidence to counter any negative infеrences arising from the failure to produce other reports made by the victim. Certainly, there are negative inferences in criminal cases, and the defendant is entitled to an instruction not to draw a negative inference from the defendant’s failure to testify. See, e.g., Lakeside v. Oregon,
The victim could not even confirm that she talked to the police officer. It was only Ms. Earls’ testimony that corroborated the report made to thе police officer, but not the substance of the report. This evidence is necessary when there is a 7-year-old victim whose initial report is denied by a party with interest, and the defense seeks to rely on negative inferences.
Because the majority holds that the necessity prong was not met in this case, I believe it is incumbent upon Congress or the President, as many states have done,
. Currently Mil.R.Evid. 807 (effective 1 June 99).
. In support of his ruling, the military judge made the following findings of fact:
The testimony of Mrs. Earls is reliable as to [EB’s] statements, the statements are reliable under a totality of the circumstances for the following reasons. Mrs. Earls was a person who [EB] knew and had trusted; she was involved in counseling with her previously; [EB] was not afraid of her.
Second, although Mrs. Earls brought [EB] into her office and initiated the conversation with her, she did not elicit responses from [EB] concerning the alleged incident with Sergeant Pablo. She did not question her initially about the incidents with Sergeant Pablo. None of the essential details of these statements were suggested to [EB] by Mrs. Earls. Mrs. Earls' questions to [EB] were open-ended rather than conclusionary or leading questions. [EB's] statements to Mrs. Earls were under the circumstances spontaneous, voluntary, uncоntrived, and unconstrained. Only a short time transpired between the alleged incident and the interview with Mrs. Earls.
At the time of the alleged incident [EB] was 7 years old. The statements made by [EB] contain personal sexual matters that a 7-year-old child would not be expected to discuss with an adult or anyone else. The statements to Mrs. Earls involve an unusual and exciting event that a 7-year-old would not be expected to experience or discuss with an adult or anyone else.
The language used by [EB] in describing the instance was language that one would expect of a 7-year-old child, that is she describеd a weiner or a pee-pee as opposed to a penis. The statement was not a response to any questions concerning the incident.
Although statements to Mrs. Earls do not qualify as an excited utterance, the nature of the statements to Mrs. Earls were similar to an excited utterance in that the statements were unsolicited and involved an unusual and exciting event.
[EB] demonstrated no animosity toward Sergeant Pablo and had no reason to lie about the incident, she had no reason to fabricate. [EB] has been consistent with her description of what occurred prior to the statements made to Mrs. Earls and several subsequent statements made since the statements to Mrs. Earls. [EB] has not recanted.
See generally Idaho v. Wright,
. If the defense counsel attacks a child victim’s credibility in his or her opening statement, rehabilitating the victim’s credibility during the Government’s case in chief would not constitute improper bolstering. Rehabilitation testimony is properly admitted as soon as any attack on a child victim is mounted. See John E.B. Myers, et ah, Expert Testimony in Child Sexual Abuse Litigation, 68 Neb.L.Rev. 1, 92 (1989).
. Wash. Rev.Code Ann. § 9A.44.120 provides:
A statement made by a child when under the age of ten describing any act of sexual contact performed with or on the child by another, describing any attempted act of sexual contact with or on the child by another, or describing any act of physical abuse of the child by another that results in substantial bodily harm as defined by RCW 9A.04.110, not otherwise admissible by statute or court rule, is admissible in evidence in dependency proceedings under Title 13 RCW and criminal proceedings, including juvenile offense adjudications, in the courts of the state of Washington if:
(1) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstanсes of the statement provide sufficient indicia of reliability; and
(2) The child either:
(a) testifies at the proceedings; or
(b) is unavailable as a witness: PROVIDED, That when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act. A statement may not be admitted under this
section unless the proponent of the statement makes known to the adverse party his or her intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings to provide the adverse party with a fair 'opportunity to prepare to meet the statement.
. In fаct, Colorado, the state where the incident occurred, has a child hearsay exception. People v. Bowers,
Dissenting Opinion
(dissenting):
I would affirm appellant’s conviction for indecent acts with a child because the erroneously admitted testimony of Ms. Earls was cumulative of other evidence properly admitted in this ease. See United States v. Pittman,
As I stated in my dissenting opinion in United States v. Armstrong,
The testimony at issue on this appeal came from Ms. Earls, a school counselor at the alleged victim’s school. She testified that sometime after the incident, the alleged victim told her that appellant sexually abused her. She testified:
I just asked her how she was and how was school, some small talk in the beginning. Then I said, “One time you told me” — oh no, I said, “Who are you living with right now?” And she said, “My mom and my little brother.” And then I said, “One time you told me your mom had boyfriends. Do you see any of them?” And she said, “No.” I said, “Have any of them ever bothered you in any way?” And she said, “No. I never see them.” Then she said, “You know what?” And then she told me — and I said, “What?” And she said, “Cuddles put his weiner in my mouth.” And I said, “Cuddles. Who’s Cuddles?” And she said, “He’s at my baby-sitter’s.” I said, “Is he a grownup or a kid?” And she said, “A grownup,” said it was at Cuddles’ and Siggy’s house. And I said, “Well tell me what happened.” And she said that they were playing hide-n-go-seek and she had a blindfold on and Cuddles took her to his bedroom and put a chocolate in her mouth and then put his weiner in her mouth.
(R. 240) (emphasis added).
Later оn, Ms. Earls testified to a second statement by the alleged victim to her about appellant’s alleged sexual abuse.
Part of my purpose was to clarify who [KL] was and which baby-sitter that [EB] was talking about. [EB] had told me that it had happened at her baby-sitter’s house. And through questioning or talking with [KL] I wasn’t sure which baby-sitters they were talking about. So when I talked to [EB] again, she told me that [KL] lives at Cuddles’ and Siggy’s house. And I also asked her to tell me what happened again so I could be sure. And she basically repeated the story. She added a little more detail. She said that she — when she went into the room she felt something in her mouth. She said, “I had all that stuff in my mouth and then he put in” no, “he had chocolate in my mouth. Then I felt something else in my mouth and then he — I took the blindfold off and his weiner was in my mouth. ” She said, “I also had chocolate in the kitchen afterwards.” She said, “I told Siggy about it.” I think she said Siggy had gone to the grocery store and when Siggy got home she told Siggy and Siggy told her not to tell anyone because people could get into trouble. She said, “Siggy didn’t believe me.”
(R. 242) (emphasis added).
The record before me shows that this testimony was cumulative of other evidence presented in this case. First, the alleged victim herself testified that during a game of hide and seek, appеllant gave her chocolate and then “he pulled down his pants and put his pee-pee in [her] mouth.” (R. 211). Second, the alleged victim also testified that she told her playmate, KL, appellant’s stepdaughter, right after the alleged incident the same story, and she told appellant’s wife and some unknown “big guy” that appellant had done the above acts. (R. 212). Finally, KL testified that she was playing hide and seek with appellant and the alleged victim came out of appellant’s bedroom and said “Cuddles had put a weiner in her mouth.” (R. 285).
In my view, outside of Ms. Earls’ testimony, there was ample “clear and lucid” evidеnce admitted in this case which established appellant’s crimes and the alleged victim’s complaints to others about them. The alleged victim’s testimony on her post-offense complaint was not contradicted by KL. It was corroborated by her testimony.