U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
_________________________
No. 201500199
_________________________
UNITED STATES OF AMERICA
Appellee
v.
JESUS I. GALLARDO
Corporal (E-4), U.S. Marine Corps
Appellant
_________________________
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Lieutenant Colonel Eugene H. Robinson, Jr., USMC.
For Appellant: Lieutenant Doug Ottenwess, JAGC, USN .
For Appellee: Lieutenant Commander Jeremy R. Brooks, JAGC;
USN; Major Suzanne M. Dempsey, USMC.
_________________________
Decided 29 September 2016
_________________________
Before M ARKS , F ULTON , AND G LASER -A LLEN , Appellate Military
Judges
_________________________
This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
_________________________
MARKS, Senior Judge:
A panel of members with enlisted representation, sitting as a general
court-martial, convicted the appellant, contrary to his plea, of one
specification of sexual assault of a child in violation of Article 120b, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 920b (2012).1 He was acquitted
1 The members found the appellant guilty by exceptions and substitutions,
excepting “divers occasions between on or about 25 February 2013 and 17 May 2013”
and substituting therefor “single occasion between 1200, 16 May 2013 and 1200, 17
May 2013.” Appellate Exhibit (AE) CX. He was found not guilty of the excepted words
and figures and guilty of the substituted words and figures.
United States v. Gallardo, No. 201500199
of a second specification of sexual assault of a child and a specification of
sexual abuse of a child. The members sentenced the appellant to 16 years’
confinement, reduction to pay grade E-1, forfeiture of all pay and allowances,
and a dishonorable discharge. The convening authority approved the
sentence as adjudged and executed all but the discharge.
The appellant asserts three assignments of error: (1) the military judge
abused his discretion by admitting recordings of forensic interviews of the
victim, SA, as prior consistent statements; (2) the findings and sentence are
not supported by legally and factually sufficient evidence; and (3) the military
judge abused his discretion in denying the defense’s requests for an expert
psychologist after defense counsel presented evidence that the contents of
SA’s testimony were the product of suggestibility to improper influences.
We disagree with all three assignments of error. The findings and
sentence are correct in law and fact, and no error materially prejudicial to the
substantial rights of the appellant occurred. Arts. 59(a) and 66(c), UCMJ.
I. BACKGROUND
In May 2013, SA was five years old living in family housing on board
Marine Corps Base Camp Pendleton, California, with the appellant, who was
her stepfather, her mother, her maternal grandmother, her maternal
grandmother’s boyfriend, and her infant half-brother.
Earlier that same year, SA’s behavior had changed. She began sleeping in
pants instead of pajamas, asking to shower with the bathroom door locked,
and distancing herself from her stepfather. The normally outgoing child
withdrew from classroom activities and her classmates, and demonstrated
anger at school.
On the night of 12 or 13 May 2013, her mother discovered the appellant
sleeping with SA in SA’s bed. SA’s mother woke the appellant, and he jumped
out of the bed. She noticed he was sweating and felt his heart racing, but he
did not have an erection. SA’s mother told him never to enter SA’s room
again after her bedtime. Concerned and suspicious, SA’s mother approached
SA the next day, attempting to elicit whether anyone had touched her. SA
repeatedly denied any harm.
A few days later, on 16 May 2013, SA’s mother again found the appellant
asleep in SA’s bed. She again woke him and they returned to their bedroom.
Before dawn, SA’s grandmother awoke to a noise, opened her bedroom door to
investigate, and found the appellant in the hallway. Within hours, the
appellant woke SA for school, they began their normal morning routine, and
SA started to leave for school with her grandmother.
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United States v. Gallardo, No. 201500199
SA and her grandmother never left the front porch. Instead, SA disclosed
to her grandmother, “[m]y daddy touched my coocoo.”2 “Coocoo” was SA’s
word for her genitals. SA’s mother testified that 10 to 15 minutes passed
before SA’s grandmother re-entered the house to alert her to SA’s revelation.
SA’s mother called the appellant and lured him home on the pretense that
their infant son was in distress. Then she called law enforcement. The
appellant called back and twice asked, “[a]re you sure it’s not nothing to do
with SA?”3 As he was being arrested, the appellant repeatedly cried, “I don’t
know what’s wrong with me.”4
The appellant’s inner turmoil remained apparent later that night during
a recorded interrogation with Naval Criminal Investigative Service (NCIS).
Although he made admissions, he never confessed to sexual abuse of SA. In
his most incriminating exchange with NCIS, the appellant admitted that
something happened the previous night but refused to say more for fear of
never seeing his family again:
[NCIS Agent]: So tell us the truth about what happened. How
many times has it happened?
[Appellant]: Just last night, sir.
[NCIS Agent]: What happened last night?
[Appellant]: I just . . . if I tell you this, I’m not going to be able
to see them anymore. . . .5
The appellant voiced his struggle to maintain his relationship with his
family while wrestling with a problem he would not name. He readily
admitted to sleeping in SA’s bed with her and eventually admitted to
“cuddling” with her.6 Cuddling consisted of hugging her and draping his arm
around her waist while they slept. He repeatedly claimed not to remember
anything other than falling asleep and mentioned recently waking up in
strange places, from a baseball field near his home to the couch downstairs.
Without supplying any specifics, he admitted something was wrong with him
and requested the help of a psychiatrist and a chaplain.
Earlier that day, 17 May 2013, SA had been forensically interviewed.
During the recorded interview, SA alleged that the appellant digitally
penetrated her. The pediatrician who then examined SA detected abrasions
2 Record at 725.
3 Id. at 762.
4 Id. at 764.
5 Id. at 927-28; Prosecution Exhibit (PE) 21.
6 Record at 942; PE 21.
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United States v. Gallardo, No. 201500199
and broken blood vessels around her vagina that were consistent with digital
penetration but deemed nonspecific. Forensic testing of swabs of SA’s genital
area later revealed DNA consistent with the appellant’s DNA profile. The
inner lining of a pair of SA’s underwear also contained DNA consistent with
the appellant’s DNA profile and tested positive for seminal fluid, but not
sperm.
Within a few weeks, SA disclosed that the appellant had also penetrated
her vagina with his penis. This new information prompted a second recorded
forensic interview on 11 June 2013. When asked why she had withheld this
allegation in her initial interview, SA insisted she had not forgotten but had
been too afraid to tell.
Subsequently, SA’s mother began to suspect the grandmother of framing
the appellant, accusations SA’s mother memorialized in an affidavit
presented to trial counsel on 12 September 2013. At trial, SA’s mother
testified about the grandmother’s motives and opportunity to plant such
allegations against the appellant, including disapproval of the mother’s
marriage to the appellant, the grandmother’s concerns about the appellant’s
plan to travel to Texas with the newborn son, SA’s repeated denials when the
mother asked her if anyone touched her inappropriately, confrontations
between the mother and the grandmother about the grandmother’s mental
health, the length of time the grandmother was alone with SA during her
initial front porch disclosure, the grandmother’s insistence on private hour-
long conversations with SA before interviews, and the grandmother’s use of a
baby monitor to eavesdrop on a conversation between SA and a counselor.
However, when trial defense counsel confronted SA’s mother at trial about
her accusation, she attempted to retract it: “I didn’t mean to say it that way
at all. . . . But the way my mom was acting was as if she was suspicious of,
you know, hiding something.”7
II. DISCUSSION
A. Prior consistent statements
The appellant challenges the military judge’s admission of the two
recorded forensic interviews of SA into evidence as prior consistent
statements.
A military judge’s decision to admit evidence is reviewed for abuse of
discretion. United States v. Allison, 49 M.J. 54, 57 (C.A.A.F. 1998).
A witness’s prior, out-of-court statement is normally hearsay and
therefore inadmissible. But if counsel attempts to impeach a witness with
allegations of recent fabrication or improper influence or motive, a prior
7 Id. at 790.
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United States v. Gallardo, No. 201500199
statement consistent with the witness’s testimony may become admissible to
rebut the allegation. A declarant-witness’s prior statement is not hearsay
when:
[t]he declarant testifies and is subject to cross-examination
about a prior statement, and the statement: . . . is consistent
with the declarant’s testimony and is offered to rebut an
express or implied charge that the declarant recently
fabricated it or acted from a recent improper influence or
motive in so testifying[.]
MILITARY RULE OF EVIDENCE (MIL. R. EVID.) (801(d)(1)(B), SUPPLEMENT TO
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). Factfinders may
consider a prior consistent statement properly admitted under MIL. R. EVID.
801(d)(1)(B) as substantive evidence. Tome v. United States, 513 U.S. 150,
162-63 (1995).
Whether a witness’s prior consistent statement is admissible under MIL.
R. EVID. 801(d)(1)(B) depends on the specific fabrication or influence alleged.
“In a sense, admissibility of such declarations is ‘a matter of choice by the
party opposed to the witness,’ who ‘may “open the door” to the use of such
statements by engaging in a particular kind of impeachment, or leave the
door shut by refraining.’” United States v. Morgan, 31 M.J. 43, 46 (C.M.A.
1990) (quoting D. LOUISELL AND C. MUELLER, FEDERAL EVIDENCE § 420 at
187 (1980) (footnote omitted)). If an opposing party points to an event giving
rise to a motive to fabricate or a conversation in which someone exerted
improper influence, that party may open the door to consistent statements
preceding that event or conversation. Consistent statements uttered prior to
a potentially corrupting motive or influence may rebut the alleged corruption
and thus become admissible to rebut it. See United States v. McCaskey, 30
M.J. 188, 192 (C.M.A. 1990) (“[T]he prior statement typically must have been
made before the point at which the story was fabricated or the improper
influence or motive arose.”). But when an opposing party alleges multiple
motives to fabricate or multiple improper influences, a prior consistent
statement need not precede all motives or influences, only the one it is
offered to rebut. Allison, 49 M.J. at 57.
In this case, trial counsel sought admission of SA’s two recorded forensic
interviews as prior consistent statements rebutting trial defense counsel’s
charges of improper influence of SA. Trial defense counsel objected, arguing
that the improper influence preceded both forensic interviews. The military
judge acknowledged trial defense counsel’s theory that SA’s mother and
grandmother began influencing SA before her first forensic interview, but he
pointed to trial defense counsel’s charges of improper influence after both
interviews. Specifically, he concluded:
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United States v. Gallardo, No. 201500199
that at least one such charge of improper influence, whether
discussions with [SA]’s mother or meetings behind closed doors
with [SA]’s grandmother, arose after the 17 May 2013 forensic
interview. Further, at least one such charge of improper
influence, whether interviews with members of the prosecution
team or more closed door discussions with grandmother, arose
after the 11 June 2013 forensic interview.8
The military judge did not pinpoint the instances of potential improper
influence with dates on a timeline, but it is possible to construct the sequence
of events from the record. In his opening statement, trial defense counsel
previewed multiple, continuing improper influences on SA:
[S]he’s been infected by a number of people in her life, both
before and after these allegations arose. People who talked
repeatedly about these allegations: Her grandmother, his
mother-in-law, her own mother, NCIS agents, her teachers,
social workers, counselors, and a number of times with the
prosecutors in this case in preparation for her testimony.9
SA’s mother did not accompany SA to her initial forensic interview on 17
May 2013, but testified about the many interviews and conversations that
followed. On at least one occasion between 17 May and 12 September 2013 a
school counselor came to the home to talk to SA, and her grandmother
eavesdropped on the conversation using a baby monitor. SA’s mother
confirmed that the grandmother took SA aside before interviews and spoke to
her alone for an hour. SA’s grandmother talked about the case against the
appellant “constantly” in front of SA.10 SA’s mother testified about how she
felt one of the NCIS agents “put too much pressure” on SA when talking to
her about the case.11 While the dates of these interviews and conversations
are not clear, the 17 May 2013 forensic interview preceded them all.
In the months before the court-martial, trial counsel and at least one
NCIS agent prepared SA for trial. By December 2014, SA was anxious about
the court-martial, asking her mother when the case would be over and
admitting she didn’t know who touched her. In January 2015, trial counsel
and an NCIS agent visited SA and her mother at their new home. According
to the mother’s testimony, she and SA arrived at Camp Pendleton for pretrial
preparation on Wednesday, 4 February 2015. SA acknowledged that she
8 AE CVI at 3.
9 Record at 615.
10 Id. at 791.
11 Id. at 771.
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spoke to trial counsel and her victim’s legal counsel and watched the
recordings of her forensic interviews in the days between 4 February and the
day she testified, 10 February. SA agreed with trial defense counsel that the
videos and conversations helped her remember what she had forgotten. Both
forensic interviews, recorded 17 May and 11 June 2013, preceded SA’s
conversations with trial counsel, NCIS, and her victim’s legal counsel in
January and February 2015.
Although his findings of fact did not explicitly cite dates, the military
judge focused his legal analysis on “the timing of both statements sought to
be admitted and of the charge of improper influence.”12 He was correct to
focus on the timing of these statements, and the record supports his finding
that the forensic interviews predated multiple instances of alleged improper
influence.
The appellant disputes the existence of multiple instances of improper
influence, arguing instead that each instance merely repeated and
perpetuated the grandmother’s original improper influence. This argument
has failed before the Court of Appeals for the Armed Forces (CAAF) in cases
with similar facts. In Morgan, the case on which the military judge sub judice
relied, trial defense counsel suggested that the victim’s mother planted
allegations in her daughter’s mind to secure her husband’s early return from
an overseas assignment. 31 M.J. at 44. During cross-examination, trial
defense counsel impeached the child victim with inconsistent statements
from her Article 32, UCMJ, testimony and her acknowledgment that “she had
told the same ‘story over and over again.’” Id. Citing the cross-examination,
the military judge admitted a video recording of her forensic interview into
evidence under MIL. R. EVID. 801(d)(1)(B). Id. at 45. Trial defense counsel
argued that the recorded forensic interview did not rebut the allegation that
the victim’s mother coached her to make the initial claim of sexual abuse. Id.
at 45, 46. The Court of Military Appeals (CMA) differentiated Morgan’s
allegations of improper influence:
Although defense counsel contended he was implying only
that the child had been coached from the beginning, he actually
raised two separate theories through his cross-examination of
mother and child and his argument. The first was that the girl
had been coached to fabricate the incident, so as to accomplish
the return of her father from an overseas assignment. The
second was that her trial testimony did not even agree with
that given at the Article 32 hearing.
12 AE CVI at 1.
7
United States v. Gallardo, No. 201500199
Id. at 46. Finding that the forensic interview predated, and therefore could
rebut, allegations of improper influence since the Article 32 hearing, the
CMA affirmed its admissibility as a prior consistent statement. Id. See also
Allison, 49 M.J. at 57-58 (The CAAF affirmed admission of the victim’s
recorded forensic interview as a prior consistent statement to rebut
allegations that an Army Criminal Investigative Division agent, trial counsel,
and others coached and influenced the child victim from an early interview
through trial.) As in Morgan, there was a material change in SA’s account of
her sexual abuse. And the allegations that investigators, counsel, and others
repeatedly rehashed SA’s claim with her also align with the facts in Morgan
and Allison.
We find that the military judge did not abuse his discretion by admitting
the two forensic interviews of SA as prior consistent statements pursuant to
MIL. R. EVID. 801(d)(1)(B).
B. Legal and factual sufficiency
The appellant contests the legal and factual sufficiency of the evidence
supporting his conviction for sexual assault of a child.
Article 66(c), UCMJ, requires us to review issues of legal and factual
sufficiency de novo. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002) (citing United States v. Cole, 31 M.J. 270, 272 (C.M.A. 1990)). “The test
for the former is whether, considering the evidence in the light most
favorable to the prosecution, a reasonable factfinder could have found all the
essential elements beyond a reasonable doubt.” United States v. Turner, 25
M.J. 324, 324 (C.M.A. 1987) (citing Jackson v. Virginia, 443 U.S. 307, 319
(1979)) (emphasis added). The test for factual sufficiency is “whether, after
weighing the evidence in the record of trial and making allowances for not
having personally observed the witnesses,” we are ourselves “convinced of the
accused's guilt beyond a reasonable doubt.” Id.. at 325. “Such a review
involves a fresh, impartial look at the evidence, giving no deference to the
decision of the trial court on factual sufficiency beyond the admonition in
Article 66(c), UCMJ, to take into account the fact that the trial court saw and
heard the witnesses.” Washington, 57 M.J. at 399.
We find the evidence legally and factually sufficient to support the
appellant’s conviction for digitally penetrating his stepdaughter, SA, on 16 or
17 May 2013. In her 17 May forensic interview, SA articulated the essential
elements of rape of a child. Evidence of injury to SA’s genitals plus the
presence of the appellant’s DNA there and on the lining of her underwear
corroborate her allegations. SA’s behavioral changes, the mother’s repeated
discovery of the appellant in bed with SA, testimony about his reaction to his
arrest, and his recorded admissions to NCIS also support SA’s claim. We
considered evidence of the grandmother’s possible motives and extensive
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opportunities to influence SA, including the mother’s testimony about
delivering a notarized letter to trial counsel in September 2013 with her
suspicions that the grandmother may have “set [the appellant] up.”13
However, the detail in SA’s account and physical evidence implicating the
appellant weigh against such a theory. Weighing all of the evidence, while
considering our inability to personally observe the witnesses, we find no
merit in this assignment of error.
C. Expert psychological testimony as to suggestibility
Last, the appellant avers the military judge abused his discretion in
denying a motion to compel production of an expert psychologist to explain
how SA’s testimony could be the product of suggestibility.
We review a military judge’s decision to deny a request for an expert for
an abuse of discretion and will overturn it only “if the findings of fact are
clearly erroneous or the decision is influenced by an erroneous view of the
law.” United States v. Anderson, 68 M.J. 378, 383 (C.A.A.F. 2010) (citations
omitted).
It is well-established in case law that, “as a matter of military due
process, servicemembers are entitled to investigative or other expert
assistance when necessary for an adequate defense, without regard to
indigency.” United States v. Garries, 22 M.J. 288, 290 (C.M.A. 1986) (citations
omitted). RULE FOR COURTS-MARTIAL 703(b)(1), MANUAL FOR COURTS-
MARTIAL, UNITED STATES (2012 ed.) entitles an accused to “the production of
any witness whose testimony on a matter in issue on the merits or on an
interlocutory question would be relevant and necessary.” MIL. R. EVID. 706
extends that entitlement to expert witnesses and requires that “[t]he trial
counsel, the defense counsel, and the court-martial have equal opportunity to
obtain expert witnesses under Article 4614 and R.C.M. 703.”
To claim this entitlement, an accused must first demonstrate the
necessity of the expert assistance. Garries, 22 M.J. at 291. “‘[A] defendant
must demonstrate something more than a mere possibility of assistance from
a requested expert; . . . a defendant must show the trial court that there
exists a reasonable probability both that an expert would be of assistance to
the defense and that denial of expert assistance would result in a
fundamentally unfair trial.’” United States v. Robinson, 39 M.J. 88, 89
(C.M.A. 1994) (citing Moore v. Kemp, 809 F.2d 702, 712 (11th Cir. 1987), cert.
13 Record at 790.
14 Article 46, UCMJ, establishes the equal opportunity to obtain witnesses and
other evidence: “The trial counsel, the defense counsel, and the court-martial shall
have equal opportunity to obtain witnesses and other evidence in accordance with
such regulations as the President may prescribe. . . .”
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denied, 481 U.S. 1054 (1987) (footnotes omitted). Courts also evaluate an
accused’s demonstration of necessity in light of three factors: “‘First, why the
expert assistance is needed. Second, what would the expert assistance
accomplish for the accused. Third, why is the defense counsel unable to
gather and present the evidence that the expert assistant would be able to
develop.’” United States v. Gonzalez, 39 M.J. 459, 461 (C.M.A. 1994) (quoting
United States v. Allen, 31 M.J. 572, 623 (N.M.C.M.R. 1990), aff’d 33 M.J. 209
(C.M.A. 1991), cert. denied, 503 U.S. 936 (1992)); see also United States v.
Freeman, 65 M.J. 451, 458 (C.A.A.F. 2008) (citing United States v.
Bresnahan, 62 M.J. 137, 143 (C.A.A.F. 2005)).
The appellant argued that expert assistance was necessary to challenge
the authenticity of SA’s claim given her age, her presumed suggestibility, and
evidence of the influence of her grandmother. When trial defense counsel first
litigated the motion, they offered no testimony or evidence from their
prospective expert but rather only referenced his dispositive testimony before
courts-martial in the same judicial circuit.
In his initial ruling on the motion, the military judge found that the
defense had not demonstrated that they required the assistance of an expert
forensic psychologist. They had presented no evidence that suggestibility was
a matter of such scientific, technical, or other specialized knowledge that an
expert was necessary to understand it. The military judge noted that trial
defense counsel had not interviewed the forensic interviewer or presented
anything to rebut his conclusion that counsel “already possesse[d] the tools
necessary to adequately gather and present evidence which would allow them
to attack seven-year old [SA]’s testimony . . . .”15
At a later Article 39(a) session, the appellant’s preferred expert on
suggestibility testified. The expert explained how a child can become
susceptible to the suggestion of sexual abuse. He answered trial defense
counsel’s question as to why counsel couldn’t address these issues himself:
. . . [B]ecause you need to go to graduate school and spend a
couple years studying developmental psychology. It’s not just
simple stuff. There are many different protocols for
interviewing children. . . . [Y]ou have to take a look at the
child’s sex abuse accommodation syndrome . . . You have to
take a look at . . . the suggestibility features of the child and
maturity and the psychopathology of the child. . . .16
The military judge made additional findings of fact, summarizing the
psychologist’s testimony as follows: “[S]cientific research and data establish
15 AE LXII at 7.
16 Record at 422-23.
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that children, especially those of tender years, are highly susceptible to
suggestibility. As such, their testimony can be contaminated due to any
number of reasons, including interviewers[’] improper questioning and
suspicious parents repeatedly asking a child about abuse.”17 However, the
military judge claimed to have heard nothing new in the psychologist’s
testimony. Adopting and incorporating the statement of law from his first
ruling, the military judge concluded: “The expert’s professional
opinions/conclusions that the jurors need to understand the science of false
confessions and suggestibility of children does not warrant the Court’s
reversal of the prior rulings on this matters [sic].”18 He went on to find that
“[w]hile the expert assistance may be relevant, the expert assistance is not
necessary. . . . Denial of the expert assistance in this case will not result in a
fundamentally unfair trial.”19
To find that the military judge abused his discretion by denying trial
defense counsel the assistance of this expert psychologist, we must conclude
that the military judge relied on a misstatement of the law or a clearly
erroneous finding of fact. Our review of the record reveals that the military
judge correctly recited the applicable law and applied it without introducing
legal error. “‘[T]he abuse of discretion standard of review recognizes that a
judge has a range of choices and will not be reversed so long as the decision
remains within that range.’” Freeman, 65 M.J. at 453 (quoting United States
v. Gore, 60 M.J. 178, 187 (C.A.A.F. 2004)). In Freeman, trial defense counsel
requested an expert “with a specialty in police interrogation techniques,”
asserting that they could not challenge their client’s interrogation as
comprehensively and skillfully as an expert could. Id. at 457-59. Accepting
arguendo the consultant’s expertise and potential benefit to trial defense
counsel, the CAAF still found that, “[t]hey failed to establish why they were
unable to gather the relevant information and cross-examine the
investigators on their interrogation techniques and their use of those
techniques in eliciting a confession.” Id. at 459.20
17 AE XCIV at 2.
18 Id. at 3.
19 Id. at 4.
20 On the other hand, the CAAF has found abuse of discretion when a military
judge denies an accused an expert comparable to the one on which the Government’s
case relies. See United States v. Lee, 64 M.J. 213 (C.A.A.F. 2006). In Lee, the
Government’s case relied on an expert witness’s interpretation of forensic testing of
computer images. 64 M.J. at 217. In light of the Government’s need for an expert and
the criticality of “scientific analysis and expert testimony” to its case, fundamental
fairness dictated the accused needed an expert as well:
11
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In this case, trial defense counsel simply desired the superior experience
and skill of an expert to dissect and potentially discredit SA’s forensic
interviews and testimony. The Government did not introduce an expert
witness to testify to SA’s suggestibility, or lack thereof, nor did they proffer
the social worker who conducted both forensic interviews as an expert in her
field. Undoubtedly, an expert would have bolstered trial defense counsel’s
efforts to sow doubt through suggestibility, but they failed to present
evidence that undermined the military judge’s assessment of their skills and
resources relative to the issue of suggestibility. Their preferred expert made a
case for education and experience equipping a professional to evaluate
children with an increasingly nuanced eye and ear. But he did not controvert
the military judge’s original conclusion that trial defense counsel could
effectively cross-examine SA, her mother, and her grandmother and reveal
evidence of potentially improper influence.
Assuming arguendo that the military judge erred in denying the expert
assistance, any error was harmless. Trial defense counsel effectively cross-
examined SA and her mother on lapses in SA’s memory, the mother’s
concerns about suggestibility, and the multiple occasions on which SA heard
adults talking about her allegations against the appellant, including in the
days before trial. Ultimately, the members’ findings reflect their reasonable
doubt as to much of what SA alleged. The appellant was convicted of a single
incident of digital penetration, arguably what he admitted to in his NCIS
interrogation.
The military judge’s findings of fact were not clearly erroneous, and his
conclusions that trial defense counsel had not demonstrated the necessity of
their requested expert witness betrayed no abuse of discretion.
Where the Government has found it necessary to grant itself an
expert and present expert forensic analysis often involving novel or
complex scientific disciplines, fundamental fairness compels the
military judge to be vigilant to ensure that an accused is not
disadvantaged by a lack of resources and denied necessary expert
assistance in the preparation or presentation of his defense.
Id. at 218.
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III.CONCLUSION
The findings and the sentence are affirmed.
Judge FULTON and Judge GLASER-ALLEN concur.
For the Court
R.H. TROIDL
Clerk of Court
13