IN THE CASE OF
UNITED STATES, Appellee
v.
Arturo CANO, Specialist
U.S. Army, Appellant
No. 04-0291
Crim. App. No. 20010086
United States Court of Appeals for the Armed Forces
Argued December 7, 2004
Decided April 26, 2005
ERDMANN, J., delivered the opinion of the court, in which
GIERKE, C.J., and EFFRON and BAKER, JJ., joined. CRAWFORD, J.,
filed a separate opinion concurring in the result.
Counsel
For Appellant: Captain Todd N. George (argued); Colonel Mark
Cremin, Colonel Robert D. Teetsel, Lieutenant Colonel Mark
Tellitocci, Major Sean S. Park, and Captain Lonnie J. McAllister
II (on brief).
For Appellee: Captain Michael C. Friess (argued); Colonel
Steven T. Salata, Lieutenant Colonel Mark L. Johnson, Major
Natalie A. Kolb, and Captain Janine P. Felsman (on brief).
Military Judge: Gary V. Casida
This opinion is subject to editorial correction before final publication.
United States v. Cano, No. 04-0291/AR
Judge ERDMANN delivered the opinion of the court.
Specialist Arturo Cano entered pleas of not guilty to one
specification of sodomy with a child under twelve, three
specifications of indecent acts with a child under sixteen, and
one specification of indecent liberties with a child under
sixteen in violation of Articles 125 and 134 of the Uniform Code
of Military Justice (UCMJ), 10 U.S.C. §§ 925, 934 (2000). He
was tried and convicted by a military judge sitting as a general
court-martial and sentenced to a dishonorable discharge,
confinement for seventeen years, forfeiture of all pay and
allowances, and a reduction in grade to E-1. The convening
authority approved the sentence and the findings and sentence
were subsequently affirmed by the Army Court of Criminal
Appeals. United States v. Cano, No. 20010086 (A. Ct. Crim. App.
Feb. 4, 2004) (unpublished).
“Where an appellant demonstrates that the Government failed
to disclose discoverable evidence in response to a specific
request . . . the appellant will be entitled to relief unless
the Government can show that nondisclosure was harmless beyond a
reasonable doubt.” United States v. Roberts, 59 M.J. 323, 327
(C.A.A.F. 2004) (citing United States v. Hart, 29 M.J. 407, 410
(C.M.A. 1990)). During discovery, Cano specifically requested
that the Government produce the clinical psychologist’s medical
records compiled during her therapy sessions with the victim.
2
United States v. Cano, No. 04-0291/AR
After reviewing the materials in camera, the military judge
released a portion of the material and sealed the remaining
documents. The Court of Criminal Appeals found that the
military judge erred in withholding the materials but held that
Cano was not prejudiced by the error. We granted review to
determine whether the Court of Criminal Appeals erred in finding
that Cano was not prejudiced by the withholding of these
documents.1 We hold that the nondisclosure of these materials
was harmless beyond a reasonable doubt and therefore affirm the
decision of the Court of Criminal Appeals.
BACKGROUND
On August 9, 2000 Cano’s eleven year-old stepdaughter, DH,
had a sleepover with two of her friends at the Cano home. The
girls stayed up late and around midnight Cano came into DH’s
room and asked the girls if they wanted to take some pictures
with his computer. He took DH’s two friends, one at a time,
into his computer room where he removed their clothes, touched
each of them on their breasts and one of them on her vaginal
area, made one of the girls touch his penis, and took pictures
of each of them. After the girls went back to DH’s room they
1
We granted review of the following issue:
WHETHER THE ARMY COURT OF CRIMINAL APPEALS
ERRED WHEN IT DETERMINED THAT THE MILITARY
JUDGE’S ERROR IN NOT DISCLOSING MENTAL HEALTH
RECORDS OF A VICTIM DID NOT MATERIALLY
PREJUDICE APPELLANT. SEE UNITED STATES V.
ROBERTS, 59 M.J. 323, 327 (C.A.A.F. 2004).
3
United States v. Cano, No. 04-0291/AR
told DH what happened. DH tried to tell her mother but Cano
prevented her from doing so.
One of the girls lived nearby, so the two girls left Cano’s
house and went to the girl’s home where they told her mother
what had happened. The incident was reported to Army Criminal
Investigation Command (CID), which interviewed DH as part of its
investigation. During that interview DH gave a sworn statement
in which she alleged that Cano had sexually abused her for six
years.
Some time after DH made this statement she met with Dr.
DeeAnn Lau, a clinical psychologist from the on-post medical
facility. DH was treated by Dr. Lau from September 2000 through
December 2000. At some point between the August 9 incident and
Cano’s trial, Cano’s wife (DH’s mother) told Dr. Lau that DH had
recanted her story about having been abused by Cano. Mrs. Cano
also made other statements regarding the possibility that DH was
lying.
At trial DH testified regarding various incidents in which
Cano had touched her, had forced her to rub his penis, had
forced her to place his penis in her mouth, and had inserted his
penis into her vagina. DH’s mother testified for the defense.
She said that on the evening in question she had been in bed
with Cano and had been awake until approximately 1 a.m. On
cross-examination the Government pointed out that this was
4
United States v. Cano, No. 04-0291/AR
inconsistent with her statement on the night of the incident in
which she said that she had fallen asleep at midnight. Mrs.
Cano said that she had no explanation for the discrepancy and
was also unaware that the pictures taken of the girls that had
been found on Cano’s computer were time-stamped at approximately
12:30 a.m. She further testified that after she and DH watched
a movie about a man who was falsely convicted for something he
had not done, DH told her that “she was lying” because of the
way Cano treated her and that she “said that stuff” because Cano
spanked her.
Prior to trial the defense made a specific discovery
request for the collection of notes taken by Dr. Lau during her
therapy sessions with DH between August and December 2000. The
military judge rejected the Government’s contentions that the
notes were privileged and reviewed the materials in camera.
Following his review, the military judge released that portion
of the materials he deemed relevant to the case and sealed the
remainder. The Army Court of Criminal Appeals found that
although the military judge erred in failing to release all of
the materials, that error was not prejudicial to Cano.
In evaluating the impact of the requested evidence, the
Army court tested for materiality on the basis of whether the
evidence “might have affected the outcome of the trial.” The
Army court found that the withheld evidence would have allowed
5
United States v. Cano, No. 04-0291/AR
for some minor impeachment of DH when she testified and “would
have provided data relevant to the defense’s concern that DH’s
testimony was of a memory created or implanted during the
therapy process.” However, after evaluating DH’s testimony the
Army court found that overall she was “direct,” “clear and
forthcoming, largely consistent with” her earlier signed
statement, and “credible.” It also noted that her testimony was
“subject to reasonable scrutiny by the defense on cross-
examination.” The court concluded that “the undisclosed
evidence would not, in fact, have made any difference in the
outcome of this case.”
Before this court Cano argues that the Army court erred in
concluding that he was not prejudiced by the military judge’s
erroneous decision to deny him the opportunity to review the
withheld documents. He argues that the lower court applied the
wrong standard for evaluating prejudice and also erred in
failing to consider the impeachment value of the withheld
evidence. Cano argues that the withheld notes demonstrate
inconsistencies in DH’s account of what allegedly transpired
between DH and Cano and support the possibility that Dr. Lau’s
counseling techniques influenced DH’s account of events. Cano
asserts that denying him access to these records undermined the
defense’s ability to prepare for trial effectively, and more
specifically, to prepare its cross-examination of DH.
6
United States v. Cano, No. 04-0291/AR
The Government responds by arguing that the military
judge’s error in failing to disclose this evidence was harmless
beyond a reasonable doubt and therefore did not prejudice Cano.
It contends that the evidence presented against Cano at trial
was overwhelming, noting the strength of DH’s testimony and the
defense’s failures in its attempts to impeach her credibility
and her memory. Additionally, the Government argues that the
evidence in question is not evidence of inconsistencies or
coaching, but rather shows that DH was consistent in her
statements regarding the abuse she suffered at the hands of her
stepfather. It concludes that the undisclosed evidence in this
case was of minimal evidentiary value and would not have
affected the fact-finder’s decision-making process.
DISCUSSION
The Army Court’s Prejudice Standard
In Roberts this court clarified that “[w]here an appellant
demonstrates that the Government failed to disclose discoverable
evidence in response to a specific request . . . the appellant
will be entitled to relief unless the Government can show that
nondisclosure was harmless beyond a reasonable doubt.” 59 M.J.
at 327 (citing United States v. Hart, 29 M.J. 407, 410 (C.M.A.
1990)). The Army court’s opinion in this case, issued prior to
this clarification, concluded that “the undisclosed evidence
would not, in fact, have made any difference in the outcome of
7
United States v. Cano, No. 04-0291/AR
this case[,]” and therefore applied a lesser standard than
required by Roberts. As we review issues of prejudice from
erroneous evidentiary rulings de novo, this court can apply the
correct “harmless beyond a reasonable doubt” standard in our
review. See United States v. Diaz, 45 M.J. 494, 496 (C.A.A.F.
1997).
Inconsistencies in DH’s Testimony
We first turn to Cano’s claim that Dr. Lau’s notes could
have been used to show inconsistencies in DH’s testimony. The
most obvious difference between DH’s earlier statement and her
testimony at trial was her statement at trial that Cano had
penetrated her, while her earlier statement suggested that he
had only touched her with his penis. Dr. Lau’s notes do contain
a statement noting that DH said Cano had penetrated her, and
therefore DH’s assertions regarding penetration would have been
revealed to the defense prior to trial had the materials been
turned over.
Cano’s defense counsel became aware of this inconsistency
when DH testified at trial and properly impeached her during
cross-examination. By cross-examining on that point, the
defense counsel demonstrated to the military judge that DH’s
earlier statement was not as complete as her trial testimony.
There was little more that he could have done even if he had
received the notes at an earlier date.
8
United States v. Cano, No. 04-0291/AR
Dr. Lau’s notes also indicated that during treatment, DH
made inconsistent statements concerning the timing and location
of incidents of abuse. For example, the notes stated that DH
“denied having been abused since she was 10 y.o.” Cano points
out that DH was, in fact, eleven years and five months old at
the time she had earlier claimed she was last molested.
Similarly, Cano argues that the evidence shows an inconsistency
with regard to the location in which DH claimed incidents of
abuse took place. There is a notation in the therapy notes that
in talking to Dr. Lau, DH “recalled that the abuse occurred
‘downstairs in the computer room,’” but at trial DH testified
that the abuse took place in the bathroom and in her parent’s
bedroom.
We agree with the defense that these are inconsistencies
that could have been used by the defense at trial. However, it
was obvious throughout DH’s testimony, both on direct and cross-
examination, that her sense of the timing and locations of
various instances of abuse was not always entirely clear.
Defense counsel himself showed at trial that DH’s understanding
of time was not exact. He began his cross-examination by asking
DH how many days were in a week, to which she replied “like 5
days,” and then asked how many hours in a day, to which she
answered “I think 26.”
9
United States v. Cano, No. 04-0291/AR
Inconsistencies such as these are not uncommon when child
abuse victims testify:
[T]he evidence . . . is underscored by the fact that
the persuasive testimony is from a child, from whom
gathering more exact details as to when the sexual
conduct precisely began is an unreasonable expectation
and a formidable hurdle. Any person who suffers from
some type of traumatic experience, adult or child, may
have difficulty relating that experience in a
chronological, coherent and organized manner. See
Kermit V. Lipez, The Child Witness in Sexual Abuse
Cases in Maine: Presentation, Impeachment, and
Controversy, 42 Me. L. Rev. 283, 345 (1990).
Paramore v. Filion, 293 F. Supp. 2d 285, 292 (S.D.N.Y. 2003).
While the additional information from Dr. Lau’s notes could
have been used to demonstrate that DH did suffer from some
confusion, that fact was already obvious from her testimony at
trial. In United States v. Santos, 59 M.J. 317, 322 (C.A.A.F.
2004), we found that withheld evidence might have been used to
impeach an important Government witness, but concluded that the
error in withholding it was harmless beyond a reasonable doubt
because it was “largely cumulative of other information
available to Appellant” at trial, was vague, and concerned a
collateral issue. Conversely, in United States v. Jackson, 59
M.J. 330, 335-36 (C.A.A.F. 2004), we found that erroneously
withheld evidence was “critical on a pivotal issue on the case”
and that because it was so significant the error in withholding
it was not harmless beyond a reasonable doubt.
10
United States v. Cano, No. 04-0291/AR
As found by the Army court, DH’s “testimony was reasonably
direct, with a minimum of leading. She was mainly clear and
forthcoming, and largely consistent with her signed statement of
10 August 2000 to the CID, made on the morning she reported the
abuse.” At trial the defense was able to explore the major
inconsistency in DH’s testimony as to whether Cano had
penetrated her with his penis or simply touched her. The
defense was able to show that DH was confused concerning the
timing and location of various encounters as well as raise the
possibility that DH was lying through the testimony of her
mother.
Unlike the evidence in Jackson, the notes in question here
would not have been “critical on a pivotal issue in the case”
because the defense already had the opportunity to attack DH’s
credibility and the notes would not have provided any new
ammunition with which to do so. 59 M.J. at 335-36. We find
that any inconsistencies revealed in the withheld evidence in
this case are harmless beyond a reasonable doubt because they
are cumulative of other evidence available at trial, easily
explained based on DH’s age and maturity, and are not
significant in relation to DH’s overall testimony.
Suggestive Therapy
We next turn to Cano’s argument that the withheld evidence
could have been used to demonstrate that DH’s testimony was the
11
United States v. Cano, No. 04-0291/AR
result of coaching by Dr. Lau in their counseling sessions. The
record reveals that DH’s testimony concerning several of the
more serious allegations of abuse at trial was consistent with
the statement she gave to CID investigators immediately
following the August 9 incident. That statement was made well
before DH had met Dr. Lau or started her therapy. In the August
statement she said that Cano had touched her “chest” and
“private area” with his hand, and that he had her put her hands
around “the part he goes to the bathroom with and . . . shake
it.” She also said he would “have me put it in my mouth
sometimes.” At trial, she testified that Cano: touched her
chest; put his finger in her vagina; put his “front bathroom
part” in her mouth; and put his “front bathroom part” inside
her; and that she had to rub Vaseline on his “front bathroom
part” so “it can be wet and moisty.” While DH’s trial testimony
was more detailed than the earlier statement, the main
allegations in the earlier statement were largely consistent
with her testimony at trial.
We disagree with Cano’s assertion that the withheld
evidence showed Dr. Lau to be “more of a zealot who was prone to
overreaching in interviewing an alleged child sex abuse victim
than she was a therapist whose goal it was to simply treat a
child sex abuse victim.” It has been noted in the context of
rape counseling that the role of a therapist is:
12
United States v. Cano, No. 04-0291/AR
not [to] probe inconsistencies in their
clients’ description of the facts of the
incident [or to] conduct independent
investigations to determine whether other
evidence corroborates or contradicts their
clients’ renditions. Because their function
is to help their clients deal with the
trauma they are experiencing, the historical
accuracy of the clients’ descriptions of the
details of the traumatizing events is not
vital in their task.
People v. Bledsoe, 681 P.2d 291, 300 (Cal. 1984).
There is a good deal of scholarly debate in the area of
child suggestibility and its effect on the reliability of the
testimony of a child victim.2 However, scholars agree that the
danger of false testimony from a child is greater when the child
is subjected to highly suggestive interviewing techniques such
as “closed” (yes/no) questions and “multiple interviews with
multiple interviewers.”3
Dr. Lau was the sole therapist who treated DH during this
period and her notes make it clear that she was acting in
accordance with her role as a counselor. She does indicate that
DH required “prompting” in telling her story. However, the
notes surrounding this statement reflect that the prompting came
2
See Thomas D. Lyon, The New Wave of Child Suggestibility
Research: A Critique, 84 Cornell L. Rev. 1004 (1999); Stephen J.
Ceci and Richard D. Friedman, The Suggestibility of Children:
Scientific Research and Legal Implications, 86 Cornell L. Rev.
33 (2000); David A. Martindale, On the Importance of
Suggestibility Research in Assessing the Credibility of
Children’s Testimony, 30 Ct. Rev. 8 (2001).
3
Ceci, supra, at 86; Lyon, supra, at 1070-72.
13
United States v. Cano, No. 04-0291/AR
in the form of open-ended questions because the quoted responses
by DH are in the form of factual descriptions of events rather
than yes/no answers. Dr. Lau’s therapy questions are consistent
with her role in counseling DH, a victim of trauma, and do not
establish that Dr. Lau was a “zealot” or that she was coaching
DH. Because we find that the notes do not provide evidence of
suggestive questioning or coaching, we conclude that withholding
the material was harmless beyond a reasonable doubt.
DECISION
The decision of the United States Army Court of Criminal
Appeals is affirmed.
14
United States v. Cano, No. 04-0291/AR
CRAWFORD, Judge (concurring in the result):
See my separate opinion in United States v. Roberts, 59
M.J. 323, 327 (C.A.A.F. 2004)(Crawford, C.J., concurring in the
result).