United States v. Norris

UNITED STATES, Appellee

v.

Carlos M. NORRIS, Machinist’s Mate Third Class
U.S. Navy, Appellant

No. 00-0302
Crim. App. No. 98-1311

United States Court of Appeals for the Armed Forces

Argued November 9, 2000

Decided July 2, 2001

EFFRON, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., and GIERKE and BAKER, JJ., joined. SULLIVAN,
J., filed an opinion concurring in the result.

Counsel

For Appellant: Lieutenant Glenn Gerding, JAGC, USNR (argued); Lieutenant
Dale O. Harris, JAGC, USNR.

For Appellee: Major Robert M. Fuhrer, USMC (argued); Lieutenant Colonel Marc
W. Fisher, Jr., USMC, Lieutenant Commander Philip L. Sundel, JAGC, USNR,
and Major Kathleen P. Kelly, USMC (on brief); Colonel Kevin M.
Sandkuhler, USMC, and Major Michael D. Tencate, USMC.

Military Judge: D. Michael Hinkley

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Norris, No. 00-0302/NA

Judge EFFRON delivered the opinion of the Court.

A general court-martial composed of a military judge

sitting alone convicted appellant, contrary to his pleas, of

rape of a female under 16 years of age; 8 specifications of

committing indecent acts on a female under 16 years of age; and

communicating indecent language to a child under 16 years of

age, in violation of Articles 120 and 134, Uniform Code of

Military Justice, 10 USC §§ 920 and 934, respectively. He was

sentenced to a dishonorable discharge, confinement for 5 years,

total forfeitures, and reduction to pay grade E-1. The

convening authority approved these results, and the Court of

Criminal Appeals affirmed in an unpublished opinion.

On appellant’s petition, we granted review of the following

issues:

I. WHETHER THE MILITARY JUDGE ERRED BY
ADMITTING IMPROPER OPINION TESTIMONY
REGARDING A DIAGNOSIS OF POST-TRAUMATIC
STRESS DISORDER.

II. WHETHER THE MILITARY JUDGE ERRED BY
ADMITTING STATEMENTS MADE BY APPELLANT TO
THE FATHER OF THE ALLEGED VICTIM, WHERE
THOSE STATEMENTS WERE OBTAINED IN VIOLATION
OF ARTICLE 31(b), UCMJ.

For the reasons set forth below, we affirm.

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I. BACKGROUND

Appellant and Machinist's Mate Chief (MMC) J met in the

spring of 1995 when both were assigned to the USS INDEPENDENCE.

They both attended the same church. At the church, MMC J

introduced appellant to his family, including his oldest

daughter, who was the victim in this case.

The connection between appellant and MMC J’s family

developed over time into a very close relationship. Appellant

visited their quarters several times a week, attended church

with them, frequently ate dinner with the family, and several

times a month spent the night at their house. Appellant called

MMC J and his wife "Dad" and "Mom" and called their children

"brother" and "sisters."

The incidents of which appellant was convicted began

sometime shortly after Christmas 1996, just before or just after

the victim's fourteenth birthday on January 3, 1997. In August

1997, MMC J and his wife learned there was a relationship

between appellant and their daughter when Mrs. J found a letter

their daughter had written to appellant. Their daughter

initially minimized the matter when they asked her what the

letter meant. Subsequent conversations between MMC J and

appellant, and between the parents and their daughter, indicated

that appellant sexually abused the victim, which ultimately led

to the court-martial.

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II. EXPERT OPINION TESTIMONY
REGARDING A DIAGNOSIS OF POST-TRAUMATIC STRESS DISORDER

A. Litigation at Trial Concerning the Qualifications of the
Expert Witness

At trial, the prosecution called as a witness Ms. Trent, a

civilian employee of the Clinical Division of the Family Service

Center, for the purpose of providing expert testimony as to

whether the victim was suffering from post-traumatic stress

disorder (PTSD). As part of the foundation for her opinion, she

testified that she had provided therapy for the victim following

the charged incidents at the request of her family. She

testified that she held a master's degree in counseling

psychology, and a license in professional counseling and one in

marriage and family therapy. With respect to the nature of the

services provided to sexual assault victims, she testified that

the Family Service Center would

make sure there is some sort of social,
emotional support in place. The next thing
that we would do is try to -- we try to
triage the level of trauma that the person
is currently experiencing, the level of
distress. And we would move forward into
that and look for ways to help alleviate the
distress.

Following her initial testimony, defense counsel objected

on the ground that Ms. Trent lacked the qualifications to render

an opinion as to whether the victim suffered from PTSD. Defense

counsel acknowledged that the witness had extensive training and

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experience working with sexual assault victims and their

families, and that "many of these people maybe suffer from post-

traumatic stress disorder." He contended, however, that the

prosecution had not demonstrated Ms. Trent's "qualifications as

a clinical psychologist or a person able to render that kind of

opinion . . . giving this type of testimony as to an opinion of

diagnosis."

In response to defense counsel's objection, the military

judge told trial counsel "to flesh out the experience that this

witness purportedly has concerning post-traumatic stress

disorder." The military judge added that if the prosecution was

relying on her experience to qualify her as an expert with

respect to the opinion in question, "let's put it [the

experience] on the record and go from there."

Ms. Trent then testified that she had been "trained in

diagnosis" and had extensive experience under "the clinical

supervision" of several psychologists and psychiatrists. As an

example, she stated that, while working under the supervision of

two psychiatrists in the adolescent unit of a Texas hospital,

she worked as part of

a team, which meant that I did the social
history; I did the basic evaluation of the
social structure, the strata that the client
came in, the problems that the client was
having and reported back to the
psychiatrists, the psychologists, the treat
team, and said to them what I thought the

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diagnosis was. And they would either concur
or they would ask for more information and
choose another diagnosis, but I found that
to be the most useful working training.

She indicated that she also received training at the Giaretto

Institute in San Jose, California, in diagnosing and treating

victims of familial incest under the supervision of

psychiatrists and psychologists, which taught her to diagnose

PTSD. Since 1988, she had worked with over a thousand victims

of sexual assault. When working in circumstances in which she

was called upon to make a diagnosis, she found PTSD in over a

hundred of these cases. She added that she had worked "with

Illiano Gill, who is one of the highly recognized folks who work

with post-traumatic stress disorder, that the supervision and

the work that I did with her was very useful, very helpful. It

taught me how to diagnose."

Following this testimony, the military judge concluded that

"the foundation has been laid concerning her expertise in the

area of post-traumatic stress disorder." He overruled the

defense objection and permitted Ms. Trent to offer an expert

opinion as to whether the victim suffered from PTSD.

Ms. Trent testified that she had seen the victim for seven

one-hour sessions "of assessment and intervention for an

assault." With respect to her approach to making a diagnosis,

she said:

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Well, initially what you're doing . . . is
you're gathering information and -- about
their ability to cope, about the
individual's ability to cope. And she was
reporting sleep disturbance, eating
disturbance. She had fear of the room that
she had been assaulted in, her bedroom. She
was experiencing difficult[y] concentrating
in school. She had a great deal of fear and
anxiety regarding what was going to happen
next. She was experiencing a difficult time
communicating with her mother, communicating
with her father. She was very -- she was
experiencing a great deal of anxiety when we
first met. And I was assessing her for how
well she was able to cope.

She then described PTSD, the characteristics of a person

suffering from that disorder, her diagnosis of the victim, and

the specific symptoms that led to her conclusion that the victim

in this case suffered from PTSD. Ms. Trent also noted that the

victim had made "great improvement" under therapy.

Under cross-examination, Ms. Trent testified that she had

inquired into and ruled out any prior sexual abuse or

victimization. She acknowledged that she had not consulted the

victim's medical records and that she was not aware that the

victim had been treated with antidepressants prior to knowing

appellant. Also, she did not know that the victim had suffered

from bedwetting at age 13. She added that when a victim came to

her for help in terms of "support during the trauma and the

ability skills to resolve the trauma," she accepted at "face

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United States v. Norris, No. 00-0302/NA

value" what the victim and the victim's family told her about

the history.

In an effort to undermine the credibility of Ms. Trent's

diagnosis, the defense offered the testimony of a licensed

clinical psychologist in the Medical Service Corps. The

witness, who questioned various aspects of Ms. Trent's

diagnosis, indicated that the set of factors customarily relied

upon for diagnosis in the mental health discipline was broader

than the factors relied upon by Ms. Trent.

We note that the defense objection to admissibility of the

opinion testimony focused exclusively on Ms. Trent's

qualifications. Although the defense later introduced evidence

on the merits concerning the credibility of Ms. Trent's

diagnostic opinion, the defense did not make an evidentiary

objection to the contents of her testimony.

B. Discussion

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.

579 (1993), the Supreme Court held that admission of scientific

evidence depends on consideration of many factors that go to

relevance and reliability of the evidence. Subsequently, in

Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the Court

held that Daubert applies not only to expert testimony based

upon "scientific" knowledge, but also to "technical" and "other

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specialized" knowledge covered by Fed. R. Evid. 702. Id. at

141; see Mil. R. Evid. 702, Manual for Courts-Martial, United

States (2000 ed.). The Court added that the trial judge's

"gatekeeping obligation" under these decisions is to "ensure

that any and all [expert] testimony . . . is not only relevant,

but reliable." 526 U.S. at 147 (internal quotation marks

omitted). The rules of evidence provide expert witnesses with

testimonial latitude broader than other witnesses on the theory

"that the expert's opinion will have a reliable basis in the

knowledge and experience of his discipline." Id. at 148

(internal quotation marks omitted). In some cases, the

reliability determination focuses on the expert's qualifications

to offer the testimony or render the opinion in question. See

id. at 149, 153. In others, it might implicate the factual

basis or data that gave rise to the opinion. See id. Daubert

and Kumho Tire were aimed at ensuring the overall reliability of

the evidence, including any information used to form the basis

for an opinion.

On appeal, appellant challenges the qualifications of Ms.

Trent to render the expert opinion and the basis for the

particular opinion she offered concerning the diagnosis of PTSD.

Appellant does not challenge whether PTSD diagnosis is an

appropriate subject for expert testimony under Mil. R. Evid. 702

or whether a PTSD diagnosis was relevant in the present case,

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see Mil. R. Evid. 401 and 402. As well, appellant does not

dispute the reliability of such evidence, in the sense of the

methodology or concept underlying diagnosing PTSD, or its

probative value. See Daubert and United States v. Gipson, 24 MJ

246 (CMA 1987).

The standard of our review of the military judge's ruling

admitting the testimony is abuse of discretion. General

Electric Co. v. Joiner, 522 U.S. 136, 143 (1997); United States

v. Houser, 36 MJ 392, 397 (CMA 1993).

Ms. Trent's occupation, for which she was trained and in

which she was experienced, was counseling and treating victims

of sexual abuse. Ms. Trent was sought out by the victim's

family for the purpose of providing counseling and therapy to

the victim in helping to cope with her relationship with

appellant. In the course of providing such therapeutic

assistance to the client, she was required to use her training

and experience to reach certain conclusions about the client's

ailments upon reasonable investigation. Ms. Trent testified

that after assuring that there was an adequate support system in

place for a victim walking into her office, her next step was to

"triage the level of trauma that the person is currently

experiencing . . . and look for ways to help alleviate the

distress." The record of trial does not demonstrate that it was

either inappropriate or unusual for a sexual abuse counselor

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such as Ms. Trent to reach a working diagnosis for purposes of

proceeding with her treatment of a client.

In short, Ms. Trent testified as a person with substantial

expertise in providing counseling therapy to sexual abuse

victims. At the request of MMC J and his wife, she had done so

for their daughter, who had improved as a result of that

treatment. As a necessary predicate to providing such service,

Ms. Trent followed the standard procedure when treating a new

client -- she reached a working diagnosis as to the victim's

mental health condition. The military judge did not abuse his

discretion in ruling that Ms. Trent was qualified as an expert

with respect to the diagnostic opinion she formulated in the

course of her providing the victim with the therapy that her

family had requested. We need not decide whether her training

or experience would have been sufficient under Daubert and Kumho

Tire to provide an expert opinion with respect to a person that

she did not evaluate in the course of such treatment.

The other aspect of appellant's argument on appeal concerns

the adequacy of the foundation upon which Ms. Trent reached her

diagnosis. As noted earlier, appellant did not contest

admissibility of Ms. Trent's opinion at trial on this basis.

See Mil. R. Evid. 703 (Bases of opinion testimony by experts).

Instead, the defense limited its effort in this regard to the

use of cross-examination and direct testimony on the merits

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offered to question the credibility of her opinion and to reduce

the persuasive weight that the factfinders would give to it.

Even in so doing, however, the defense raised no specific

questions that would lead us to conclude that it was

inappropriate for a witness within the scope of Ms. Trent's

expertise to reasonably rely upon the factors she considered in

reaching her working diagnosis. See Id. On this record, there

is no basis for finding error in this regard, much less plain

error.

ISSUE II. APPELLANT'S ADMISSIONS

A. The Motion to Suppress Appellant's Admissions

The victim's father, MMC J, an E-7, was superior in grade

to appellant, an E-4. Although they both were assigned to the

engineering department of the same ship, they worked in

different divisions and were not in the same chain of command.

As noted in section I of this opinion, MMC J’s wife found a

letter that their daughter -- the victim -- wrote to appellant.

In that letter, the daughter told appellant: "I have to tell

you something. I have to tell mom & dad. I can't lie or keep

this in anymore. . . ." MMC J’s wife discussed the letter with

their daughter, and they asked their daughter what it meant.

She crumbled up the letter and told them nothing had happened.

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MMC J’s initial reaction was to have a personal

conversation with appellant rather than report the matter to law

enforcement or disciplinary authorities. MMC J approached

appellant 3 or 4 times over the next 8 days and asked appellant

to talk to him, but appellant repeatedly declined because he was

busy preparing to detach from the ship and separate from the

Navy. Eventually, MMC J mentioned to appellant's immediate

supervisor, an E-5, that he "needed to talk" to appellant.

Subsequently, appellant let MMC J know that he would come to see

him the next morning.

The following day, the two men met as planned in MMC J’s

office on board the ship at about 11:00 a.m., when both men were

on duty and in uniform. They talked about several unrelated

matters, including appellant's pending transition to civilian

life and their church. Ultimately, MMC J told appellant about

the letter from their daughter and asked him specific and

repeated questions about the relationship. After initially

providing "evasive" responses, appellant made several

incriminating admissions. Appellant stated that he had kissed

MMC J’s daughter and that he had performed oral sex on her. He

assured MMC J, however, that the girl "was still a virgin."

The conversation lasted approximately 2 hours, during which

the door was closed but not locked, and several other people

came and went freely. Neither man addressed the other by rank.

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As the lunch period drew to a close, the conversation ended so

that each could return to work. They walked out of the office

together. Appellant offered to call MMC J later that evening to

see if MMC J's wife "wanted to talk to him about th[e]

situation." MMC J did not provide rights' warnings under

Article 31(b), UCMJ, 10 USC § 831(b), to appellant during their

conversation.

That evening, appellant called Mrs. J, but she declined to

talk to him. MMC J and his wife told their daughter what

appellant had told them about the relationship. She broke down

crying and provided further details. In the course of doing so,

she stated that appellant had raped her. The following evening,

MMC J brought this information to the attention of law

enforcement authorities.

At trial, appellant made a timely motion to suppress his

admissions to MMC J and any derivative evidence. In support of

the motion, appellant testified that he met with MMC J because

his own supervisor had informed him that MMC J wanted to talk.

He stated that in spite of their friendship, he considered his

conversation to be with "a chief" petty officer, not a friend.

He characterized the conversation as more of a "counseling

session" than "a casual conversation," and indicated that he did

not "really" feel free to leave or to end the conversation.

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In his findings of fact, the military judge described the

foregoing events and added the following:

[MMC J’s] questions were motivated by a
personal concern to get to the bottom of the
cryptic note . . . that his daughter, when
confronted, had vaguely explained to him.
In the words of [MMC J], his questions of
the accused were personal questions that the
answers to which, quote, any father would
want to know, end quote;

that at the time . . . [MMC J] was the
father of [the victim] and was a father
figure to the accused at the same time;

that while [MMC J] had a hunch that
something was not right based upon his
review of [the letter], he wanted to get the
accused's input to find out what had
happened to cause his daughter to write the
note;

that at the time of the questions . . .
[MMC J] did not suspect the accused of any
offense and never ordered the accused to
talk to him;

that [MMC J] at the time had no idea of the
details behind the note and was talking to
the accused as a friend;

that [MMC J] wanted the accused's side of
the story concerning the references that
[his daughter] made to the accused having
kissed her and made passes at her;

* * *

that [MMC J] had no intent to report the
details of his conversation with the accused
to Security . . . when he was asking these
questions of the accused during their
conversation;

* * *

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That the accused asked [MMC J] if [MMC
J]wanted the accused to leave the office,
and that [MMC J]replied that it was up to
the accused to make that decision. After
this exchange, the accused stayed and
continued the conversation;

That [MMC J]asked the questions of the
accused because he wanted to know personally
what had happened between his daughter and
the sailor who called him "Dad"; . . . .

Based upon these essential findings of fact, the military

judge ruled that MMC J was acting in a personal capacity during

his conversation with appellant, rather than in an official

capacity. Under those circumstances, he ruled that there was no

violation of Article 31(b), citing our opinion in United States

v. Duga, 10 MJ 206 (CMA 1981), discussed infra at (17). He

emphasized the following factors in support of his conclusion:

(1) the "close personal relationship" between the two men

included frequent conversations on serious subjects; (2) the

room door was not locked and appellant "could have left at any

time"; (3) after appellant asked MMC J whether MMC J "wanted him

to leave" and after MMC J replied that it was up to appellant,

appellant chose to remain and continue the conversation; (4)

appellant offered to contact MMC J’s wife later to see if she

wanted to discuss the matter, and he in fact attempted to do so;

and (5) the 2-hour conversation was private, in an open-bay type

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of office, in which "rank was not used" and which included

conversation along several different general-subject lines.

B. Discussion

Article 31(b) provides that "[n]o person subject to this

chapter may interrogate, or request any statement from, an

accused or a person suspected of an offense without first"

warning that person of his right to silence. Early in this

Court's history, we concluded that the purpose and legislative

history of Article 31(b) demonstrated that Congress did not

intend that provision to apply to every conversation between

members of the armed forces regardless of the circumstances.

United States v. Gibson, 3 USCMA 746, 752, 14 CMR 164, 170

(1954). In Duga, supra at 210, we held that "the Article

applies only to situations in which, because of military rank,

duty, or other similar relationship, there might be subtle

pressure on a suspect to respond to an inquiry." We offered

this guidance for assessing application of Article 31(b):

[I]n each case it is necessary to determine
whether (1) a questioner subject to the Code
was acting in an official capacity in his
inquiry or only had a personal motivation;
and (2) whether the person questioned
perceived that the inquiry involved more
than a casual conversation. United States
v. Gibson, supra. Unless both prerequisites
are met, Article 31(b) does not apply.

(Footnote omitted.)

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In our consideration of a military judge's ruling on a

motion to suppress under Article 31(b), we apply a clearly-

erroneous standard of review to findings of fact and a de novo

standard to conclusions of law. United States v. Moses, 45 MJ

132, 135 (1996); United States v. Ayala, 43 MJ 296, 298 (1995).

In the present case, the military judge's findings of fact are

well within the range of the evidence permitted under the

clearly-erroneous standard. Based on those findings and the

rationale articulated by the military judge, we agree with the

military judge that MMC J was acting in a personal rather than

an official capacity under the first prong of Duga.

The findings of fact reflect a conversation in which MMC

J’s purpose was to understand and clarify the content of a

letter written by his daughter to a man who had become such a

close personal friend that he was treated like a member of his

family. Although MMC J had a hunch that something more was

involved than what his daughter had told him, he did not seek

out appellant with a view towards elevating the matter to a

criminal investigation and prosecution. The military judge's

findings of fact indicate that until the point at which MMC J’s

daughter accused appellant of rape -- which was after MMC J’s

conversation with appellant -- MMC J considered the situation to

be a family matter. It was only after the accusation of rape

that MMC J treated it as a criminal matter. Although appellant

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testified that he viewed his conversation as one with a chief

petty officer, not a friend, and that he did not feel free to

leave, the findings of fact by the military judge, supported by

the evidence, are to the contrary.

Under these circumstances, the military judge was correct

in ruling that Article 31(b) was not violated by MMC J's

unwarned conversation with appellant. United States v. Duga,

supra. Consequently, evidence from that conversation was

admissible.

CONCLUSION

The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.

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SULLIVAN, Judge (concurring in the result):

I agree with the majority that the military judge did not

abuse his discretion in admitting the challenged testimony of Ms.

Trant. See United States v. Dollente, 45 MJ 234, 238 (1996); see

also United States v. Raya, 45 MJ 251, 252-53 (1996). Its

“substantial expertise” standard (11 Maj. Op.), however, is

somewhat more demanding and considerably less precise than our

traditional view that an expert be shown to have “training and

experience beyond the ken of the average court member.” United

States v. Harris, 46 MJ 221, 224 (1997) (internal quotation marks

omitted). I am not persuaded that Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993) and its progeny

require a wholesale reconsideration of our case law on this

question. See Kumho Tire Co., Ltd. V. Carmichael, 526 U.S. 137,

153-55 (1999) (distinguishing an expert’s qualifications from his

methodology).

The second issue in this case I would resolve on the basis of

this Court’s decision in United States v. Loukas, 29 MJ 385, 387

(CMA 1990). I think reasonable men might differ in this case

whether this was one of those “situations in which, because of

military rank, duty, or other similar relationship, there might

be subtle pressure on a suspect to respond to an inquiry.” See

United States v. Duga, 10 MJ 206, 210 (CMA 1981). However,
United States v. Norris, 00-0302/NA

clearly this was not an official law-enforcement or disciplinary

questioning. United States v. Loukas, supra at 387. That is

enough to take it out of the ambit of Article 31(b).

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