UNITED STATES, Appellee
V.
Mark K. HOLLIS, Journalist First Class
U.S. Navy, Appellant
No. 01-0337
Crim. App. No. 99-0297
United States Court of Appeals for the Armed Forces
Argued December 12, 2001
Decided July 23, 2002
GIERKE, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., and BAKER, J., joined. EFFRON, J., and SULLIVAN,
S.J., each filed an opinion concurring in part and in the result.
Counsel
For Appellant: Lieutenant I. L. Paredes, JAGC, USNR (argued and
on brief); Captain Curtis M. Allen, USMC.
For Appellee: Lieutenant Christopher J. Gramiccioni, JAGC, USNR
(argued and on brief); Lieutenant William C. Minick, JAGC,
USNR.
Military Judge: Gerald T. Hatch
This opinion is subject to editorial correction before final publication.
United States v. Hollis, No. 01-0337/NA
Judge GIERKE delivered the opinion of the Court.
A military judge sitting as a general court-martial
convicted appellant, contrary to his pleas, of rape, forcible
sodomy, and indecent acts, in violation of Articles 120, 125, and
134, Uniform Code of Military Justice, 10 USC §§ 920, 925, and
934, respectively. The victim of the offenses was appellant’s
five-year-old daughter, J.H. The adjudged and approved sentence
provides for a dishonorable discharge, confinement for 22 years,
total forfeitures, and reduction to the lowest enlisted grade.
The Court of Criminal Appeals affirmed the findings and sentence.
54 MJ 809 (2002).
Before this Court, appellant has raised three issues arising
from the admission, over defense objection, of the testimony of
two Navy medical officers, Lieutenant (LT) Stephen Novek and
Captain (CAPT) Barbara Craig, relating statements made by J.H.
and her three-year-old sister, R.H.1 For the reasons set out
below, we affirm.
1
The granted issues are:
I. WHETHER THE LOWER COURT ERRED WHEN IT AFFIRMED THE
MILITARY JUDGE’S DECISION TO ALLOW LT NOVEK AND CAPT CRAIG
TO PRESENT, OVER DEFENSE OBJECTION, THE INADMISSIBLE HEARSAY
STATEMENTS OF J.H. AND R.H. TO THE COURT-MARTIAL.
II. WHETHER THE HEARSAY TESTIMONY BY LT NOVEK AND CAPT
CRAIG IS INADMISSIBLE BECAUSE THE PRIMARY PURPOSE OF THEIR
INTERVIEWS WAS TO COLLECT INCRIMINATING EVIDENCE AGAINST
APPELLANT.
III. WHETHER APPELLANT WAS DENIED HIS RIGHTS TO
CONFRONTATION AND DUE PROCESS BY THE ADMISSION OF HEARSAY
STATEMENTS UNDER AN EXTENSIVELY BROADENED FORM OF THE
MEDICAL TREATMENT HEARSAY EXCEPTION, WHICH IS NOT A FIRMLY
ROOTED HEARSAY EXCEPTION.
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The Evidence
In December 1995, appellant reported for duty at the U.S.
Naval Support Activity in Naples, Italy. His estranged wife and
two daughters remained in Arizona until April 1996, when the two
daughters were escorted to Italy by Ms. Kathy Robie, who stayed
in Italy as their live-in nanny.
On August 11, 1997, Ms. Robie had a conversation with J.H.
that caused her to believe appellant had sexually abused her.
Ms. Robie contacted the Family Services Center and told Ms. Lyn
Flahardy about her conversation with J.H. Ms. Flahardy contacted
LT Novek, a staff pediatrician who had previously treated J.H. as
a patient. Ms. Flahardy told LT Novek that J.H. “had disclosed
alleged sexual abuse” and asked him to see her. When Ms.
Flahardy said that the most recent sexual abuse was “last night,”
LT Novek responded that it was a “medical emergency” and arranged
to see J.H. later in the day “for a medical evaluation for
alleged child sexual abuse.” Ms. Flahardy and two agents from
the Naval Criminal Investigative Service (NCIS) escorted Ms.
Robie, J.H., and R.H. to the U.S. Naval Hospital, Naples, where
J.H. was examined by LT Novek.
Ms. Flahardy, NCIS Special Agent (SA) Kevin Hutson, and
Hospitalman Third Class Laura Rodriguez-Calderon were present
during LT Novek’s meeting with J.H. SA Hutson testified that LT
Novek told him “he would be conducting a physical examination of
the girl, . . . and desired to interview her.”
LT Novek began by talking to J.H. about the importance of
telling the truth, in order “[t]o help her to understand that it
was important that she explain things clearly and tell us the
3
United States v. Hollis, No. 01-0337/NA
truth about what had gone on.” LT Novek testified that J.H. knew
who he was because he had previously treated her.
Notwithstanding their previous contact, LT Novek told J.H. that
he was a doctor and that he “was going to try to help her to
figure out what had happened and to help her if she needed help.”
LT Novek testified that he knew J.H. understood he was trying to
make her better, because “she was nodding and she recognized
[him] from prior visits.”
LT Novek then took a medical history, which he defined as “a
series of questions that the physician asks of the patient to try
to understand what is wrong with the patient and how to help the
patient and how to treat the patient.” During the medical
history, J.H. told LT Novek that appellant had been touching her
“private parts” and that it “hurt a lot.” She also told LT Novek
that appellant “used his hand to put medicine on in front and
that he used his private part to touch her from behind and she
pointed to her anus.”
Toward the end of LT Novek’s medical history interview,
after J.H. had disclosed appellant’s abuse, he invited the other
persons present to ask questions. SA Hutson asked J.H. if
appellant “said this was a secret.” She responded, “He said not
to tell anybody, because he would go to jail.” SA Hutson also
had J.H. identify the partially used tube of Westcort cream
prescribed to R.H. but used on J.H. by appellant. LT Novek
testified that he asked all other questions.
After completing the medical history, LT Novek performed a
complete physical examination of J.H. that included a detailed
genital and anal examination. He identified vaginal injuries
4
United States v. Hollis, No. 01-0337/NA
that were consistent with digital or penile penetration. He
characterized his findings as “highly suspicious of abuse but
non-confirmatory.” In his written “progress note,” LT Novek
prescribed a plan that provided for treatment by a clinical
psychologist.
In August 1997, appellant’s trial defense counsel asked CAPT
Barbara Craig, an experienced pediatrician at the National Naval
Medical Center in Bethesda, Maryland, to evaluate J.H. and R.H.,
who were then six years old and four years old, respectively.
CAPT Craig contacted the girls’ grandparents and arranged a
medical evaluation on September 4, 1997.
When CAPT Craig contacted the grandparents, she told the
grandfather that “he needed to prepare the children for coming in
by telling them they were coming to see a physician, a
pediatrician, that [she] was a doctor, that [she] help[s] kids,
and that it’s always important to tell the truth to the doctor
when children come in for a checkup.” When CAPT Craig first met
J.H. and R.H. at the hospital, she explained that she was a
“kids’ doctor,” that she “help[s] kids,” that she would be asking
a lot of questions, and that she wanted them to answer “as best
they could.” She was wearing a white coat and had a stethoscope
around her neck. J.H. addressed CAPT Craig as “doctor.”
Trial defense counsel had asked CAPT Craig to inquire about
the possibility that J.H. had been abused by the son of her
mother’s boyfriend while she was living in Arizona with her
mother. CAPT Craig testified that J.H. said the boy had done
something bad or wrong to her and that she did not want to talk
about it. When CAPT Craig began to ask questions about what
5
United States v. Hollis, No. 01-0337/NA
happened in Italy, J.H. began shouting “no, no,” and asked her to
stop asking questions about it. J.H. told CAPT Craig that
“something bad had happened with her dad,” that “it happened in
the bedroom in Italy, that it happened at nighttime, that it
happened in the bed that she slept in with her father and her
sister, [R.H.].” J.H. said that “her father told her not to tell
about what was happening between her father and herself in Italy
because he would go to jail.” At this point, J.H. was “heaving,
crying, yelling the answers.” She was saying, “I just wanted it
to stop, no, no.” She was “yelling the answers . . . , with her
head in the corner and kind of rocking back and forth.” CAPT
Craig terminated the interview without completing the medical
history, because of J.H.’s emotional state.
CAPT Craig was able to conduct a physical examination of
J.H. on September 4. She found vaginal injuries consistent with
penile or digital penetration. CAPT Craig also examined R.H. on
September 4. She explained that she examined R.H. “because
frequently children that are in the same home and in the same
surroundings or conditions of the child who has been physically
or sexually abused might suffer a physical or emotional trauma
either by having the abuse occur to them or they can be equally
traumatized by witnessing the abuse happen to someone else.”
R.H. was four years and ten months old at the time of the
examination. CAPT Craig explained to R.H. that she was a
pediatrician, “and that’s a doctor who takes care of tummy aches
and rashes or whatever.” R.H. interrupted her and blurted out,
“I’ve had medicine for a rash before.” CAPT Craig explained the
importance of telling the truth, and R.H. told CAPT Craig that
6
United States v. Hollis, No. 01-0337/NA
she understood. CAPT Craig testified that, in her opinion, R.H.
knew she was a doctor and understood the need to tell her the
truth.
During the medical history, R.H. told CAPT Craig that while
sleeping in the same bed with appellant and J.H., she saw and
heard appellant doing “yucky” and “bad” things to J.H. She saw
appellant “opening [J.H.’s] privates with his hands,” forcing
J.H. to “eat” something in the middle of the night in bed, and
kneeling over J.H. as she lay in bed. R.H. said that she heard
J.H. cry and ask appellant why he “does this” to her and not to
R.H.
CAPT Craig talked with J.H. again on September 30, this time
at J.H.’s request. J.H. remembered CAPT Craig and greeted her by
saying, “Hello, Dr. Craig.” J.H. indicated that she understood
this second interview was to enable CAPT Craig to help her.
During this interview, J.H. described acts of rape and said that
it happened “a zillion times.” She said that appellant kissed
her on the mouth. She described being forced to perform fellatio
on appellant, and she described appellant’s digital penetration
of her anus.
CAPT Craig recommended counseling for both J.H. and R.H.
For J.H., she “strongly” recommended counseling consisting of
“longer-term therapy.”
Over defense objection, the military judge admitted the
testimony of LT Novek and CAPT Craig under Mil. R. Evid. 803(4),
7
United States v. Hollis, No. 01-0337/NA
Manual for Courts-Martial, United States (2000 ed.).2 The
defense objected to LT Novek’s testimony as inadmissible hearsay,
on the ground that there was an inadequate showing that J.H.
“understood what benefit she was gonna gain from talking to this
roomful of people.” The defense also objected that LT Novek’s
testimony and written report were incomplete because the report
did not include the questions preceding J.H.’s statements and
“some portions of what happened in that interview [were] not
recorded in this history.” With respect to LT Novek’s testimony,
the military judge stated:
I specifically state for the record that the court has
heard ample evidence that [J.H.] was aware of the
circumstances for which she was at the doctor’s office.
She recognized the doctor from prior visits for medical
treatment. The doctor and his staff advised her that
she was there for possible medical treatment and to
determine what was wrong with her so they could get
treatment, and what had happened so she could be
treated. No evidence to the contrary that she didn’t
understand that. In fact, the doctor indicated that in
his opinion, she did, and his opinion is obviously
based on previous exposure to her also.
With respect to R.H.’s statements to CAPT Craig, the
military judge stated:
I find that [R.H.] understood that she was talking to a
doctor that helped children. She understood the need
to tell the truth and based on Dr. Craig’s testimony
that she understood that it was in her best interest to
be truthful and that those truthful answers were
necessary for any type of treatment, whether it was
physical or counseling. Even though [R.H.] probably
didn’t know what the word counseling meant, but Dr.
Craig said talk to for -- to make you better or words
to that effect. Therefore, I find that even though it
is hearsay, it comes within M.R.E. 803(4), as medical
exception to the hearsay rule.
2
All Manual provisions cited are identical to those in effect at
the time of appellant’s court-martial.
8
United States v. Hollis, No. 01-0337/NA
Finally, with respect to J.H.’s statements to CAPT Craig,
the military judge stated:
I find based on Dr. Craig’s testimony that the
statements made by [J.H.] to Dr. Craig on the 30th of
September 1997 were for the purpose of promoting her
well-being and receiving medical treatment or
diagnosis, that [J.H.] knew she was talking to a
medical professional. In fact, she greeted her as Dr.
Craig, and she understood the need for truthful
answers, that they were necessary for her treatment[.]
The prosecution’s case-in-chief included the testimony of LT
Novek and CAPT Craig relating the statements of J.H. and R.H.,
and physical evidence of J.H.’s vaginal injuries. It also
included appellant’s statement to SA Hutson, in which he admitted
touching J.H.’s vaginal area and asserted that he was role
playing in an effort to determine what had happened between J.H.
and her mother’s boyfriend’s son. Finally, the prosecution case
included deoxyribonucleic acid (DNA) evidence identifying 11
semen stains on J.H.’s nightgown as having come from appellant.
Neither appellant nor his daughters testified.
Discussion
Appellant contends that there is no evidence J.H. understood
she was being treated for sexual abuse or that she would receive
any medical benefit for any ailments when LT Novek and CAPT Craig
questioned her. He argues that the purpose of the interviews was
to collect incriminating evidence and to smuggle in hearsay
testimony using medical professionals acting in complicity with
law enforcement officials. He asserts that admitting his
daughters’ statements under the medical exception violated his
right to confront the witnesses. Finally, he asserts that he was
9
United States v. Hollis, No. 01-0337/NA
denied due process when the Government, in bad faith, failed to
preserve potentially material evidence by failing to videotape or
audiotape the interviews of J.H. and R.H.
The Government argues that the military judge’s decision to
admit the statements of J.H. and R.H. was not an abuse of
discretion and that his findings of fact were not clearly
erroneous. The Government asserts that the purpose of the
interviews was to elicit information for medical diagnosis or
treatment, not prosecution. The Government asserts that
appellant waived any issue about the availability of J.H. and
R.H. by not raising it at trial. It argues that even if the
availability issue was not waived, the right of confrontation was
satisfied because the medical exception is a firmly rooted
exception to the hearsay rule. Finally, the Government argues
that there has been no showing of bad faith on the part of LT
Novek and CAPT Craig, and that there is no requirement that
medical professionals use videotapes or audiotapes during medical
examinations.
Standard of Review
A military judge’s decision to admit evidence is reviewed
for abuse of discretion. United States v. Sullivan, 42 MJ 360,
363 (1995). We review a military judge’s factfinding under the
clearly erroneous standard of review, and conclusions of law we
review de novo. Id. We will reverse if the findings of fact are
clearly erroneous or if the military judge’s decision is
influenced by an erroneous view of the law. Id.
10
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Confrontation
The “medical exception” is a firmly rooted exception to the
hearsay rule, and, as such, it satisfies the constitutional right
of confrontation. White v. Illinois, 502 U.S. 346, 356-57
(1992). Thus, there is no need to establish that the declarant
is unavailable as a witness.
Admissibility under Medical Exception
Under Mil. R. Evid. 803(4), “[s]tatements made for purposes
of medical diagnosis or treatment and described medical history”
are not excluded by the hearsay rule, even if the declarant is
available. The proponent of evidence offered under the medical
exception must establish that (1) the statements were made for
the purposes of medical diagnosis or treatment, and (2) that the
declarant made the statement “with some expectation of receiving
medical benefit for the medical diagnosis or treatment that is
being sought.” United States v. Edens, 31 MJ 267, 269 (CMA 1990)
(internal citation omitted). “The key factor in deciding if the
second prong is met is ‘the state of mind or motive of the
patient in giving the information . . . and the expectation or
perception of the patient that if he or she gives truthful
information, it will help him or her to be healed.” United
States v. Kelley, 45 MJ 275, 279 (1996) (internal citation
omitted). The determination whether the patient has the
requisite state of mind is a preliminary question of fact under
Mil. R. Evid. 104(a), and, as such, it will be overturned on
appeal “only if clearly erroneous.” Id. at 280.
A child-victim’s expectation of receiving medical treatment
need not be established by the child-victim’s testimony. It may
11
United States v. Hollis, No. 01-0337/NA
be established by the testimony of the treating medical
professionals. See United States v. Quigley, 40 MJ 64, 66 (CMA
1994); Edens, supra at 268. Although a medical doctor’s
determination that the child understood the need to be truthful
can be an important component of the military judge’s inquiry,
the record must support the military judge’s determination that
the child had the requisite understanding and expectation of a
medical benefit to satisfy the subjective prong, even if the
military judge relies on the doctor’s testimony to establish the
factual predicate for this determination. See United States v.
Williamson, 26 MJ 115, 118 (CMA 1988), quoted in Edens, supra at
269 (“Although there may be some relaxing of the quantum of proof
in those situations where a child is being treated, the facts and
circumstances must support a finding that both prongs of the test
were met.”).
We hold that the military judge did not abuse his discretion
by permitting LT Novek to testify about J.H.’s responses to his
questions during his medical history interview. J.H. was taken
to LT Novek’s office at the Naval Hospital shortly after making
an emotional disclosure to her nanny. J.H. had been treated
previously by LT Novek and knew that he was a doctor. She
indicated that she understood the need for truthful answers so
that LT Novek could determine what had happened, in order to
treat her.
Although appellant asserts that LT Novek was acting in
complicity with law enforcement personnel and not for medical
reasons, the record shows the contrary. LT Novek told Ms.
Flahardy he needed to see J.H. immediately because it was a
12
United States v. Hollis, No. 01-0337/NA
medical emergency. When J.H. arrived at his office, LT Novek
told SA Hutson that he wanted to interview J.H. The impetus for
the interview was LT Novek’s concern about a medical emergency,
not a request from SA Hutson for investigative assistance.
J.H.’s responses to the two questions asked by SA Hutson
were not admissible under the medical exception. See United
States v. Armstrong, 36 MJ 311, 313 (CMA 1993) (responses to
trial counsel’s questions not admissible under Mil. R. Evid.
803(4)). In United States v. Siroky, 44 MJ 394, 400 (1996), this
Court recognized the responsibility of a military judge to
scrutinize each segment of a statement offered under Mil. R.
Evid. 803(4) to ensure that it satisfies both prongs of the test
for the medical exception. We are satisfied, however, that the
admission of LT Novek’s testimony relating J.H.’s responses to SA
Hutson’s two questions was harmless beyond a reasonable doubt in
light of the other evidence of appellant’s guilt.
We also hold that the military judge did not abuse his
discretion by admitting CAPT Craig’s testimony. CAPT Craig
examined the children, at defense counsel’s request, to determine
if they had been physically and emotionally traumatized. The
record reflects that J.H. knew CAPT Craig was a medical doctor,
that J.H. asked to see CAPT Craig on September 30, that J.H.
addressed CAPT Craig as “Doctor Craig,” and that J.H. knew CAPT
Craig needed truthful answers to help her.
Similarly, R.H. indicated that she knew CAPT Craig was a
doctor. R.H. demonstrated that she knew doctors help children,
spontaneously announcing that a doctor had treated her skin rash.
R.H. told CAPT Craig that she understood the need for truthful
13
United States v. Hollis, No. 01-0337/NA
answers so that CAPT Craig could “make [her] better or words to
that effect.” CAPT Craig’s professional assessment was that R.H.
knew she was a doctor who helped children and that R.H.
understood the need to tell the truth.
Based on this record, we hold that the military judge’s
preliminary findings of fact were not clearly erroneous, and that
he made his ruling based on a correct understanding of the law.
Accordingly, we hold that, with the exception of LT Novek’s
testimony relating J.H.’s responses to SA Hutson’s two questions,
the military judge did not abuse his discretion by permitting LT
Novek and CAPT Craig to testify about the victims’ statements to
them during their interviews. We further hold that the admission
of the portion of LT Novek’s testimony relating J.H.’s responses
to SA Hutson’s two questions was harmless beyond a reasonable
doubt in light of the other evidence of appellant’s guilt.
Failure to Preserve Evidence
Appellant’s assertion that he was denied due process by the
failure to audiotape or videotape the interviews of J.H. and
R.H. is without merit for several reasons. First, there is no
rule requiring that medical interviews be taped. Second, there
is no indication in the record that material evidence was lost.
To the contrary, the record reflects that the evidence was
carefully preserved by the meticulous interview notes and
diagnostic reports prepared by the medical professionals
involved. Third, there is nothing in the record suggesting bad
faith. See Arizona v. Youngblood, 488 U.S. 51, 58 (1988) (“We
therefore hold that unless a criminal defendant can show bad
faith on the part of the police, failure to preserve potentially
14
United States v. Hollis, No. 01-0337/NA
useful evidence does not constitute a denial of due process of
law.”).
Decision
The decision of the United States Navy-Marine Corps Court of
Criminal Appeals is affirmed.
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EFFRON, Judge (concurring in part and in the result):
I agree with the majority opinion’s conclusion that J.H.’s
statements to Drs. Novek and Craig were properly admitted under
Mil. R. Evid. 803(4). There are sufficient indicia of J.H.’s
subjective intent in the record to show that she understood the
purpose for speaking with each doctor and, in return, expected
to receive a medical benefit as a result of those
communications. See __ MJ at (12-14). However, the record is
less than clear as to the motivation of her younger sister,
R.H., in speaking to Dr. Craig. The record does not demonstrate
that R.H. (1) perceived a link or otherwise understood that her
statements to Dr. Craig were for the purpose of medical
diagnosis or treatment; (2) believed she needed to be helped,
even in a general sense; or (3) expected to medically benefit
from responding truthfully when speaking with Dr. Craig.
We have held that “[t]he key factor in deciding if the
second prong is met is ‘the state of mind or motive of the
patient in giving the information . . . and the expectation or
perception of the patient that if he or she gives truthful
information, it will help him or her to be healed.” United
States v. Kelley, 45 MJ 275, 279 (1996) (citation omitted).
This standard applies equally to adults and children. As this
United States v. Hollis, No. 01-0337/NA
Court made clear in United States v. Williamson, 26 MJ 115 (CMA
1988), “Although there may be some relaxing of the quantum of
proof in those situations where a child is being treated, the
facts and circumstances must support a finding that both prongs
of the test were met.” Id. at 118, quoted in United States v.
Edens, 31 MJ 267, 269 (CMA 1990).
In this case, the majority opinion relies entirely on
R.H.’s spontaneous statement, “I’ve had medicine for a rash
before,” __ MJ at (6), and the military judge’s finding, based
on Dr. Craig’s testimony, that “[e]ven though [R.H.] probably
didn't know what the word [‘]counseling[’] meant, . . . Dr.
Craig said talk to for – to make you better or words to that
effect,” to satisfy the test’s subjective prong. R.H.’s
spontaneous statement merely establishes that she may have
associated doctors with treating physical ailments. It does not
demonstrate that R.H. acted on the belief that disclosing
information about appellant’s abuse of her sister would enable
Dr. Craig “to make [her] better.” Cf. Olesen v. Class, 164 F.3d
1096, 1098 (8th Cir. 1999) (reversing where physician merely
explained “what was going to happen” during the physical
examination and no evidence was presented to show the child-
victim understood revealing her abuser’s identity was important
to diagnosis and treatment).
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United States v. Hollis, No. 01-0337/NA
I agree with the majority that the fact R.H. may not have
known what the word “counseling” meant does not, in and of
itself, render her statements inadmissible under the medical
exception. However, the burden remained on the prosecution to
present evidence establishing that R.H. understood she was there
to receive counseling services or, at minimum, help in a general
sense, although she may not have known “counseling” was the term
to describe the treatment. United States v. Avila, 27 MJ 62, 66
(CMA 1988) (“[U]nless it appears that the child knows at least
that the person is rendering care and needs the information in
order to help, the rationale for the [medical] exception
disappears entirely.”); Kelley, 45 MJ at 277, 280 (affirming
where counselor introduced himself as a “talking doctor” and
“the record support[ed] the military judge’s preliminary
findings of fact that [the six-year-old victim] understood that
Mr. Mills was trying to help her deal with unpleasant thoughts
and feelings, and that she needed to tell him what she was
thinking and feeling.”). The prosecution failed to present such
evidence in this case.∗
∗
We have upheld admission of a six-year-old’s statements to a psychologist
upon finding that the second prong was “narrowly” satisfied where the mother
testified that she “‘encourag[ed]’ her ‘daughter to speak openly with Ms.
Miller [the psychologist] because she was there to help her’; and ‘I’ve
always asked [my daughter] to tell the truth.’” United States v. Dean, 31 MJ
196, 200-01 (CMA 1990). There is no evidence in the record to show that
R.H.’s grandparents, who had custody of her at the time of her interview with
Dr. Craig, explained to R.H. the purpose of her visit with Dr. Craig or the
importance of being truthful or that she needed to be truthful so that Dr.
3
United States v. Hollis, No. 01-0337/NA
Although R.H.’s statements were erroneously admitted, I
believe the error was harmless in light of the Government’s
overwhelming evidence of appellant’s guilt. The DNA evidence of
appellant’s semen stains on his daughter’s pajamas and
undergarments, the physical evidence of abuse observed by Drs.
Novek and Craig, appellant’s admission to touching his
daughter’s vaginal area, and J.H.’s statements admitted through
Drs. Novek and Craig establish appellant’s guilt beyond a
reasonable doubt.
Craig could properly treat her. See also United States v. Siroky, 44 MJ 394,
400 (1996) (“[W]e recognize that a small child may not be able to articulate
that he or she expects some benefit from treatment. Thus, it is often
important for [the child’s] caretakers to explain to [the child] the
importance of the treatment in terms that are understandable to the child.”).
As the majority opinion notes, Dr. Craig testified that she asked the
grandparents to “prepare” the children for a “checkup” and to tell them to be
truthful. However, no evidence was presented to show that the grandparents
did in fact prepare R.H. as requested.
4
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SULLIVAN, Senior Judge (concurring in part and in the
result):
I have continued fear about admission of the testimony of
very young children under the medical exception to the hearsay
rule under Mil.R.Evid 803(4). In United States v. Kelley, 45 MJ
275, 282 (1996), I stated in a separate opinion:
Moreover, let me express my growing
uneasiness with the continuous expansion
of and reliance upon the medical
exception to the hearsay rule.
Mil.R.Evid. 803(4). Here, a 6-year-old
child’s statements to a family counselor
are taken as proof of a crime under Fed.
and Mil.R.Evid. 803(4). Every day in
America, countless statements are given
in emergency rooms and medical offices by
children, young adults, middle-aged, and
elderly patients to doctors of medicine
and their assistants. Are all these
statements true? Are all these
statements admissible in court as the
sole proof of a crime? I and my fellow
judges should wonder about this and
perhaps tighten application of this rule.
I suspect that many statements given
under the current breadth of the medical-
exception umbrella, if closely
scrutinized, may not be the complete
truth. Motives should be thoroughly
examined at the trial level before such
statements are allowed as evidence in
court.
On this basis, with regard to the statements of the three-
year-old sister, R.H., I adopt the excellent opinion of my
brother judge, Judge Effron. Nevertheless, like my brother, I
come to the conclusion that the erroneous admission of R.H.’s
United States v. Hollis, No. 01-0337/NA
testimony was harmless in light of the overwhelming evidence of
appellant’s guilt.
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