United States v. Pablo

Judge GIERKE

delivered the opinion of the Court.

Appellant 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, contrary to his pleas, of the lesser-included offense of committing an indecent act with a child, in violation of Article 134, UCMJ, 10 USC § 934. The adjudged and approved sentence provides for a bad-conduct discharge and reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed the findings and sentence. 50 MJ 658 (1999).

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-pee 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.).^* The military judge preliminarily ruled that Ms. Earls’ testimony was not admissible, because it was not more probative than EB’s own testimony; but he conditioned his ruling on hearing and evaluating EB’s testimony.

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 and out.” Concerned that EB might have been abused, Ms. Earls went to EB’s classroom and brought EB to her office for questioning. Ms. Earls began with small talk and then asked EB a number of questions about her mother’s boyfriends and her life at home. She asked EB if any of her mother’s boyfriends had “bothered” her. EB responded, “No. I never see them.” EB then said, ‘You know what?” and volunteered that appellant had “put his wiener in her mouth.” When Ms. Earls asked if anyone else was present, EB told her that appellant’s daughters, JW and KL, were present.

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 never 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, which 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 sodomy 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’ testimony. The court then held that the error was nonconstitutional and that it was harmless. 50 MJ at 662-63. Before this Court, appellant asserts that the court below erred by finding the error harmless. The Government does not challenge the lower court’s ruling on the admissibility of Ms. Earls’ testimony, but asserts that any error in admitting it was harmless. Because the Government has not challenged the lower court’s holding that Ms. Earls’ testimony was inadmissible, our review is limited to the lower court’s conclusion that the error was harmless. See United States v. Grooters, 39 MJ 269, 272-73 (CMA 1994).

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, 38 MJ 41, 52 (CMA 1993) (applying test for nonconstitutional error for admission of prior inconsistent statement where declarant testified); United States v. Lyons, 36 MJ 183, 188-89 (CMA 1992) (plurality opinion with three judges concluding that erroneous admission of hearsay evidence was not constitutional error because declarant testified); United States v. Spotted War Bonnet, 933 F.2d 1471 (8th Cir.1991) (no denial of confrontation where child testified but could not remember events on which pretrial statement was based); see also United States v. Armstrong, 53 MJ 76, 81 (2000), citing United States v. Charley, 189 F.3d 1251, 1270 (10th Cir.1999) (counselor’s testimony impermissibly vouching for credibility of victims treated as nonconstitutional error).

The test for harmless error is “whether the error itself had substantial influence” on the findings. Id., quoting Pollard, 38 MJ at 52, quoting Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). “If so, or if one is left in grave doubt, the conviction cannot stand.” Id.; see also United States v. Adams, 44 MJ 251, 252 (1996). The Government has the burden of persuading us that the error did not have a substantial influence on the findings. United States v. Pollard, supra.

Applying the foregoing principles, we hold that the Government 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.

* 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.