United States v. Donaldson , 58 M.J. 477 ( 2003 )

United States, Appellee
v.
David H. DONALDSON, JR., Sergeant
U.S. Army, Appellant
No. 02-0931
Crim. App. No. 9900544
________________________________________________________________
United States Court of Appeals for the Armed Forces
Argued April 9, 2003
Decided July 15, 2003
BAKER, J. delivered the opinion of the Court, in which
CRAWFORD, C.J., GIERKE, and ERDMANN, JJ., joined. EFFRON, J.,
filed a separate opinion concurring in part and in the result.
Counsel
For Appellant: Captain Gregory M. Kelch (argued);
Colonel Robert D. Teetsel, Lieutenant Colonel E. Allen Chandler,
Jr. and Major Imogene M. Jamison (on brief).
For Appellee: Captain Matthew J. Maclean (argued); Colonel
Lauren B. Leeker, Lieutenant Colonel Margaret B. Baines, and
Major Jennifer H. McGee (on brief).
Military Judge: James J. Smith
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Donaldson, No. 02-0931/AR
Judge BAKER delivered the opinion of the Court.
In accordance with his pleas, Appellant was convicted by a
military judge, sitting as a general court-martial, of failure
to report, disobeying an officer, disobeying a noncommissioned
officer (three specifications), disrespect to a noncommissioned
officer, failure to obey a lawful general regulation, driving
while intoxicated, cocaine use (two specifications), assault
(two specifications), adultery, breaking restriction, and
disorderly conduct, in violation of Articles 86, 90, 91, 92,
111, 112a, 128, and 134, Uniform Code of Military Justice
[hereinafter UCMJ], 10 U.S.C. §§ 886, 890, 891, 892, 911, 912a,
928, 934 (2000), respectively. Contrary to his pleas, Appellant
was convicted of indecent acts with a child less than sixteen
years of age and communicating a threat, in violation of Article
134.
The adjudged sentence included seven years’ confinement, a
reduction to the lowest enlisted grade, forfeiture of all pay
and allowances, and a dishonorable discharge. The convening
authority reduced the confinement to seventy-eight months, but
otherwise approved the adjudged sentence. He also granted
Appellant 239 days of credit against his sentence to
confinement. The Army Court of Criminal Appeals affirmed the
findings of guilty and the sentence in an unpublished opinion.
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United States v. Donaldson, ARMY No. 9900544 (A. Ct. Crim. App.
June 10, 2002). We granted review on the following issue:
WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN
HOLDING THAT THE HEARSAY TESTIMONY OF BT WAS
ADMISSIBLE UNDER MILITARY RULE OF EVIDENCE
[HEREINAFTER M.R.E.] 803(2), THAT THE HEARSAY
TESTIMONY OF DR. ROGERS WAS ADMISSIBLE UNDER M.R.E.
803(4), AND THAT THE HEARSAY TESTIMONY OF DR. ROGERS
AND INVESTIGATOR BASS-CAINE WAS ADMISSIBLE UNDER
M.R.E. 803(24).∗
We hold that the Court of Criminal Appeals did not err in
holding J's statements to BT admissible as excited utterances
under M.R.E. 803(2). We further conclude that the court
correctly held that J's statements to Dr. Carrie Rogers were
admissible under M.R.E. 803(4) as statements made for purposes
of medical diagnosis or treatment. As such, we do not address
whether these statements to Dr. Rogers would have been
admissible under M.R.E. 807. Finally, we hold that J's
statements to Investigator Tracy Bass-Caine were properly
admitted as residual hearsay under M.R.E. 807. As a result, we
affirm the lower court's opinion.
∗
Pursuant to the June 1999 Amendments to the Military Rules of Evidence,
M.R.E.s 803(24) and 804(b)(5) were combined and promulgated as M.R.E. 807.
Stephen A. Saltzburg et al., Military Rules of Evidence Manual 228-29 (4th
ed. & Supp. 2002). The change did not alter the meaning or application of
the residual hearsay exception. Id. Because of this change and to avoid
confusion, this opinion will refer to M.R.E. 807 in lieu of 803(24), even
though the military judge and the Court of Criminal Appeals referred to the
rule as 803(24).
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FACTS
The alleged errors underlying this appeal relate to the
military judge's decision to allow several witnesses to testify
about the hearsay statements of a three-year-old victim, J. The
relevant statements concerned indecent acts committed by
Appellant on the victim and threats Appellant made to her to
keep her from reporting his misconduct.
At the time of the offenses J lived with her single mother,
BT, and her brother John. Also residing in the home was
Appellant's girlfriend, SK, who rented a room and helped pay the
bills. Because SK lived with the family, Appellant frequently
spent time in the home.
At approximately 7:00 a.m. on November 11, 1996, BT was
getting ready to go to a 9:00 a.m. doctor's appointment. While
she was getting ready, J was running back and forth in the
hallway between her mother's bedroom and SK's bedroom. SK was
taking a shower and getting ready in another room, and Appellant
was in SK's bedroom. BT testified that she periodically called
out to J to find out what she was doing. In response to BT's
inquiry, J responded, "I'm up here in [SK's] room."
At about 8:00 a.m., BT was ready to depart her residence
with J to go to the doctor's appointment. At that time, she
noticed that J was unusually quiet. BT testified that
throughout the rest of the day, J was very "cling[y]," would not
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urinate, wanted to be carried, and would not let ”[me] get out
of her sight." After the doctor's appointment, BT and J went to
the mall and then returned home. Ms. Elaine Sandreth, a friend,
accompanied BT and J to the doctor's office and to the mall.
That evening, at approximately 7:00 p.m., BT gave J a bath.
At one point, BT attempted to wash between J's legs, but J
resisted saying, "No, no, no." After getting J out of the
bathtub, BT started drying J off. When BT attempted to dry J's
vaginal area, J began to cry. BT attempted to look between J's
legs to see what was wrong. According to BT, J again resisted,
held her legs together, and became "really hysterical, crying
and even more." After several minutes, BT was able to calm J
down and look between her legs. She testified that the skin in
the vaginal area was "real raw, red and irritated." She further
stated that J became "very, very hysterical . . . screaming and
crying." When BT asked her what was the matter, J stated, "Him
touched me." When BT asked her who had touched her, J stated
"Him, Dave." BT then asked her, "What do you mean Dave touched
you?" J responded by pointing to the top part of her vaginal
area with her little finger. J also stated that the touching
had occurred that morning. When BT asked J why she did not tell
her that Appellant had touched her, J responded, "Him said he
would kill you, John and me, if I told you." Appellant was the
only "Dave" J knew.
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After J calmed down, BT called her sister to discuss J's
statement. Her sister advised her to call the police. BT also
called a friend who came over to discuss the situation. BT then
proceeded to call the police. While waiting for the police to
arrive, BT called SK at work and told her to come home because
they needed to talk.
The police eventually arrived and began filling out a
report. SK also came in, and SK and BT began arguing over
Appellant's inappropriate touching of J. J was present during
the argument, and BT testified that J was "very nervous . . .
[and] a little bit upset." At one point, J put her hands over
her ears while BT and SK yelled at each other. Finally,
Investigator Bass-Caine, a child abuse investigation specialist
from the Fayetteville Police Department, arrived to help with
the investigation.
Investigator Bass-Caine took J into a bedroom and
interviewed her privately. Investigator Bass-Caine asked J who
lived in the house. J told her that her brother and mother
lived in the house, as did SK and "Dave." Investigator Bass-
Caine testified that when J mentioned Appellant's name, she
stated that she did not like him. Investigator Bass-Caine asked
her why she did not like Appellant, to which J responded,
"Because Dave hurt me." Investigator Bass-Caine testified that
when she asked J how Appellant had hurt her, J pointed to her
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United States v. Donaldson, No. 02-0931/AR
vaginal area and stated, "He touched me. He touched me there."
When Investigator Bass-Caine asked her whether Appellant had
touched "the inside or the outside," J "laid back on the bed,
pulled her panties to the side, and stuck her finger . . . real
close in her vaginal area." Investigator Bass-Caine testified
that she was surprised at J's reaction in leaning over and
revealing her private parts. She stated that she had never seen
another child abuse victim respond in such an "animated" manner.
She further testified that J did not appear to be upset at the
time she related this information to her.
After Investigator Bass-Caine completed her report, the
officers left. BT did not take J to the doctor that evening,
but waited until the next morning to have a physician examine
her. An examination revealed that there "was no evidence of
bruising, no evidence of any discharge, no evidence of any
swelling or any laceration." The examination further noted that
J's "anatomy was normal, only some minor erythema or redness.”
The doctor was unable to determine whether there was any digital
penetration. The doctor further testified that the redness
could have been caused by any number of things.
In the months following the incident, BT noticed a change
in J. J began "wetting the bed, walking in her sleep, having
nightmares, [she] did not want to be alone, didn't want [BT] out
of her sight." In addition, J began throwing things, acting
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United States v. Donaldson, No. 02-0931/AR
out, and physically hurting herself. Finally, J was still very
clingy, and was traumatized each time she saw a black Nissan
pickup truck, similar to the one driven by Appellant.
Because of J's declining behavior, BT took J to see a child
clinical psychologist, Dr. Rogers. BT told J that they "were
going to see a doctor who would help her get better and get over
the nightmares and the rages, the crying." In January 1997, J
had her first meeting with Dr. Rogers. Dr. Rogers testified
that she told J that she was "not a shot doctor and not a doctor
that looks in ears and at teeth; but a doctor that talks about
feelings and worries.” Her testimony in this respect, however,
was contradicted by her answers on cross-examination and re-
cross-examination. In response to several of defense counsel's
questions, Dr. Rogers stated that she did not remember exactly
what she told J. She added that she was not sure whether J knew
why her mother had brought her or what kind of doctor she was.
J met with Dr. Rogers in the early part of 1997 and then
again in late 1998, in all meeting with her 13 times. During
the sessions, Dr. Rogers talked with J. She also frequently
played with J on the floor or drew pictures with her. Dr.
Rogers testified that during the second session, J told her that
"Dave" had touched her. She further testified that, in a later
session, J told her, while pointing to her vaginal area, that
"[Dave] put his finger on [her]." The doctor stated that a
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United States v. Donaldson, No. 02-0931/AR
"recurring theme" during these sessions "was that [Dave] had
said if [J] talked about what had happened, he was going to get
her, hurt her, her family." To aid J in discussing the abuse,
Dr. Rogers would have J draw pictures about the incident. On
several occasions, J drew pictures of Appellant, "describing him
as mean and ugly, drew him as a worm, as a monster[.]” On
occasion, J would yell at these drawings or stomp on them.
Appellant was eventually charged with committing indecent
acts upon J and communicating a threat to her. At trial, the
Government sought to have BT, Investigator Bass-Caine, and Dr.
Rogers testify regarding J's statements to them under various
exceptions to the hearsay rule. To prevent the hearsay
testimony, Appellant submitted a motion in limine, arguing that
J's hearsay statements were not admissible under M.R.E.s 803(2),
807, or 803(4). During a hearing on the motion, pursuant to
Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2000), the Government
argued that J's statements to her mother and Investigator Bass-
Caine were admissible as excited utterances under M.R.E. 803(2).
The Government further maintained that J's statements to Dr.
Rogers were admissible under M.R.E. 803(4) as statements made
for the purpose of medical diagnosis or treatment.
J testified during the hearing and on the merits, but
neither trial counsel on direct examination, nor defense counsel
on cross-examination, could get her to discuss the facts
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United States v. Donaldson, No. 02-0931/AR
relevant to the charged offenses. She discussed general details
about her life and family, but was unable or unwilling to
elaborate on her relationship with Appellant, SK, or Dr. Rogers.
After the Article 39(a) session, the military judge denied
the defense motion. The military judge concluded that J's
statements to her mother and Investigator Bass-Caine were
admissible as excited utterances. In reaching this conclusion,
the judge found that the statements related to a startling event
(Appellant's indecent touching and threat) and that "they were
made while [J] was still under the stress and excitement caused
by the event, and they were not the result of reflection or
fabrication."
As to J's statements to Dr. Rogers, the judge determined
that they were admissible under M.R.E. 803(4). In reaching this
conclusion, the military judge made several findings. First, he
found that Dr. Rogers "told the victim that her role was to help
the victim feel better." He also found that "J understood that
Dr. Rogers was her doctor, and that she went to Dr. Rogers to
feel better." The judge therefore reasoned that J made the
statements for the purpose of medical diagnosis with "some
expectation of receiving a medical benefit." Finally, in the
alternative, the judge determined that all three statements were
admissible as residual hearsay under M.R.E. 807. In making this
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United States v. Donaldson, No. 02-0931/AR
determination, the judge did not make specific findings of fact,
but stated:
In the alternative, all of these statements were
admissible because the victim testified at trial, was
subject to confrontation and cross-examination, and
the totality of the circumstances indicated that the
statements were trustworthy. The court determined
that (A) the statements were offered as evidence of
material facts; (B) the statements were more probative
on the points for which they were offered than any
other evidence the government could procure through
reasonable efforts; and (C) the general purpose of the
rules of evidence and the interests of justice were
best served by admission of the statements into
evidence[.]
The Army Court of Criminal Appeals in affirming the
military judge's decision, held that J's statements to her
mother were excited utterances under M.R.E. 803(2). Donaldson,
ARMY No. 9900544, slip op. at 5-6. The court also agreed that
J's statements to Dr. Rogers were admissible under M.R.E.
803(4). The court, however, held that J's statements to
Investigator Bass-Caine were not excited utterances. The court
found that J made the statements "in a calm, matter-of-fact
manner and, thus, [the statements were] made as a result of
recall not as a result of the event." Id. at 7. The court
therefore concluded: "The circumstances surrounding [J's]
statement and the nature of her responses to Investigator Bass-
Caine's questioning, convinces us that they were reflective and
not made under the stress or excitement of events from the
past." Id. (citing United States v. LeMere, 22 M.J. 61, 68
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United States v. Donaldson, No. 02-0931/AR
(C.M.A. 1986)). Nevertheless, the court affirmed the military
judge's conclusion that J's statements to Investigator Bass-
Caine were admissible as residual hearsay under M.R.E. 807. Id.
at 9.
In his appeal to this Court, Appellant again asserts that
J's statements to her mother, Dr. Rogers, and Investigator Bass-
Caine are inadmissible hearsay statements. He argues that J's
statements to her mother were not made under the stress or
excitement of a startling event. Specifically, he asserts that
considering the significant time gap between the event and J's
statement, J's statements to her mother were made upon
reflection. Second, Appellant maintains that J's statements to
Dr. Rogers "were not made with the understanding that if she
were truthful, she would be helped." Finally, Appellant asserts
that J's statements to Investigator Bass-Caine lacked
"equivalent circumstantial guarantees of trustworthiness
comparable to other hearsay exceptions." As such, Appellant
argues that the military judge and the lower court erred in
admitting these statements under M.R.E.s 803(2), 803(4), and
807.
We review a military judge's ruling on the admissibility of
evidence for abuse of discretion. United States v. Moolick, 53
M.J. 174, 176 (C.A.A.F. 2000)(citing United States v. Hyder, 47
M.J. 46, 48 (C.A.A.F. 1997)). An abuse of discretion occurs
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United States v. Donaldson, No. 02-0931/AR
when a military judge either erroneously applies the law or
clearly errs in making his or her findings of fact. United
States v. Humpherys, 57 M.J. 83, 90 (C.A.A.F. 2002).
DISCUSSION
A. Admissibility of J's Statement to BT Under M.R.E. 803(2).
An otherwise inadmissible hearsay statement is admissible
under M.R.E. 803(2), even though the declarant is available as a
witness, if (1) the statement relates to a startling event, (2)
the declarant makes the statement while under the stress of
excitement caused by the startling event, and (3) the statement
is "‘spontaneous, excited or impulsive rather than the product
of reflection and deliberation.’" United States v. Feltham, __
M.J. ___ (C.A.A.F. 2003); United States v. Arnold, 25 M.J. 129,
132 (C.M.A. 1987)(quoting United States v. Iron Shell, 633 F.2d
77, 86 (8th Cir. 1980), cert. denied, 450 U.S. 1001 (1981)).
Appellant does not dispute that sexual abuse accompanied by
a threat of harm would constitute a startling event. Nor does
Appellant dispute that J’s statements related to sexual abuse
and a threat of harm. Appellant contests the military judge’s
finding that J’s statements to BT were spontaneous statements
made under the stress or excitement of a startling event.
Citing United States v. Grant, 42 M.J. 340, 343 (C.A.A.F. 1995),
United States v. Richmond, 26 M.J. 226 (C.M.A. 1988), and
several service courts, Appellant argues that there is a
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difference between an utterance made under stress and excitement
and one made upon sad reflection or under the trauma of having
to retell events after one has calmed down. Under these cases,
and Judge Everett’s dissent in Arnold, 25 M.J. at 135, he
contends that the latter statements do not qualify as excited
utterances. Appellant places particular emphasis on the time
lag between the startling event and J's statement to her mother.
He asserts that J clearly had time to calm down, and her later
excitement, if any existed, was the product of trauma upon
reflection and was not an excited utterance. Further, Appellant
distinguishes his case from Arnold by arguing that, unlike the
victim in Arnold, J “had no reason to wait until that evening to
find a ‘compassionate adult [that she could] trust.’” He
asserts that because she was with her mother all day, she had an
opportunity to discuss the event earlier in the day. He
therefore maintains that J’s statements were prompted by her
mother's questioning and not the stress and excitement of a
startling event.
The argument that statements made after one has calmed down
can never be excited utterances presents an unsettled legal
question. The "implicit premise" underlying the excited
utterance exception is "that a person who reacts 'to a startling
event or condition' while 'under the stress of excitement
caused' thereby will speak truthfully because of the lack of
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opportunity to fabricate." United States v. Jones, 30 M.J. 127,
129 (C.M.A. 1990). This premise becomes more tenuous where the
exciting influence has dissipated and one has had the
opportunity to deliberate or fabricate. Even if one were to
have a renewal of the stress involved in the original exciting
event, the existence of a deliberative period increases the
concern that subsequent statements will be inaccurate or
contrived. On the other hand, some courts and commentators have
accepted the premise that even after the excitement of a
startling event has dissipated, a subsequent statement may
constitute an excited utterance if a renewal of the excitement
provides an adequate safeguard against fabrication. See United
States v. Napier, 518 F.2d 316, 317-18 (9th Cir. 1975)
(admitting a statement as an excited utterance where the
declarant was "suddenly and unexpectedly confronted with a
photograph of her alleged assailant," even though the statement
related to a startling event that occurred a week prior); 4
Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence
§ 435, at 401-02 (2d ed. 1994)(noting the risks associated with
applying the exception after the "stress subsides," but
implicitly accepting that admission may occur under the right
conditions).
We ultimately need not resolve the question of whether the
excited utterance exception can apply to statements made after
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the original stress of excitement caused by the event has
subsided. We are convinced there was sufficient evidence for
the military judge to conclude that J made the statements to her
mother while she "was under the stress of excitement caused by
the event, and they were not the result of reflection or
fabrication."
In determining whether a declarant was under the stress of
a startling event at the time of his or her statement, courts
have looked to a number of factors. These may include: “the
lapse of time between the startling event and the statement,
whether the statement was made in response to an inquiry, the
age of the declarant, the physical and mental condition of the
declarant, the characteristics of the event, and the subject
matter of the statement.” Reed v. Thalacker, 198 F.3d 1058,
1061 (8th Cir. 1999). See Morgan v. Foretich, 846 F.2d 941, 947
(4th Cir. 1988). A lapse of time between a startling event and
an utterance, while a factor in determining whether the
declarant was under the stress of excitement caused by the
event, is not dispositive of that issue. Arnold, 25 M.J. at 132
(citing Garcia v. Watkins, 604 F.2d 1297, 1300 (10th Cir.
1979)); United States v. Scarpa, 913 F.2d 993, 1017 (2d Cir.
1990); Iron Shell, 633 F.2d at 85.
As a general proposition, where a statement relating to a
startling event does not immediately follow that event, there is
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a strong presumption against admissibility under M.R.E. 803(2).
Jones, 30 M.J. at 129. However, courts have been more flexible
in cases in which the declarant is young, particularly where the
statement was made during the child's first opportunity alone
with a trusted adult. See id. (acknowledging that children may
stay excited longer than adults); Arnold, 25 M.J. at 132
(statement of 16-year-old rape victim held admissible despite at
least a 12-hour lapse between the rape and the statement);
United States v. Farley, 992 F.2d 1122, 1126 (10th Cir.
1993)(admitting statements of five-year old though one statement
was made two hours after the assault and the other at least 12
hours after the assault); Morgan, 846 F.2d at 947 (finding that
a four-year old’s three-hour lapse in reporting an assault was
“well within the bounds of reasonableness” for an excited
utterance); Goss v. Greer, 773 F.2d 116, 119-20 (7th Cir.
1985)(holding that a lower court properly admitted a four-year
old's hearsay statement although she made it 12-15 hours after
the startling event); Iron Shell, 633 F.2d at 86 (admitting
statement of nine-year-old victim as an excited utterance
although she made the statement one hour after the assault);
but see Thalacker, 198 F.3d at 1062 (questioning the rationale
for applying the excited utterance exception differently for
children and adults).
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In Appellant's case, the military judge found that J made
the statements to her mother while she "was under the stress and
excitement caused by the event.” This finding is supported by
the facts. It is undisputed that J was three years old at the
time of the event. She was able to demonstrate exactly where
she claimed Appellant had touched her. J's mother testified
that J's behavior throughout the day was abnormal. She stated
that J was unusually quiet and clingy. Furthermore, she
testified that when she attempted to wash J's vaginal area, J
became “hysterical.”
As to the lapse in time, the military judge’s findings
indicate that J must have made her statement within roughly 11
to 12 hours of the abuse. Although the lapse in time is
significant, it is made less significant by the fact that there
was evidence indicating that Appellant threatened to kill J, her
brother and her mother if she told about the abuse. See Arnold,
25 M.J. at 132. Under the circumstances, the delay was not so
long that it was clearly erroneous for the judge to find that J
was still under the stress of a startling event.
Finally, contrary to Appellant's contention, there were
facts supporting the military judge's finding that J and her
mother were not alone during the day. BT testified that her
friend, Ms. Sandreth, accompanied her and J to the doctor's
office and to the mall. She also stated that on their way home
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United States v. Donaldson, No. 02-0931/AR
from the mall, they picked up J's brother. Appellant has failed
to show that this finding was clearly erroneous.
While the facts of United States v. Grant, 42 M.J. 340
(C.A.A.F. 1995), are similar to those present in this case,
there are significant differences that distinguish it from this
case. Unlike the present case, the victim in Grant appeared to
be happy, was not acting abnormally, and was "'telling . . .
about all the Christmas presents she had received'" just prior
to making her hearsay statement. Id. at 341. Moreover, the
victim in Grant made her statement 36 to 48 hours after the
alleged startling event, three to four times the lapse in this
case. Id. Finally, unlike J's distressed response in this
case, the victim in Grant appeared "'very sad and teary eyed'"
when she made her statements. Id. These distinctions suggest
that Appellant's reliance on Grant is misplaced.
On the facts of this case, the military judge did not
clearly err in finding that J was still under the excitement and
stress of a startling event when she made the incriminating
statements about Appellant to her mother. Therefore, there was
no abuse of discretion in admitting the statements as excited
utterances.
B. Admissibility of J's Statements to Dr. Rogers Under M.R.E.
803(4).
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Under M.R.E. 803(4), certain hearsay statements made to
medical personnel are admissible even though the declarant is
available as a witness. Those statements include:
Statements made for purposes of medical diagnosis or
treatment and described medical history, or past or
present symptoms, pain, or sensation, or the inception
or general character of the cause or external source
thereof insofar as reasonably pertinent to diagnosis
or treatment.
M.R.E. 803(4) is not limited to statements made to licensed
physicians. In United States v. Welch, 25 M.J. 23, 25 (C.M.A.
1987), this Court held that a victim's statements to a
psychologist fell within the scope of M.R.E. 803(4). Several
years later, in United States v. Morgan, 40 M.J. 405 (C.M.A.
1994), we stated that under the “proper circumstances,
statements made to psychologists, social workers, and other
health care professionals may well fall within the purview of
the medical-treatment exception to the hearsay rule.” Id. at
408 (citing Welch, 25 M.J. at 25). See United States v. Haner,
49 M.J. 72, 77 (C.A.A.F. 1998). We ultimately held in Morgan
that a victim's statements to two social workers qualified as
statements of medical diagnosis or treatment under M.R.E.
803(4). Id. at 409. Our position is consistent with a number
of federal circuits who have held that statements to
psychologists are admissible as statements for the purpose of
medical diagnosis or treatment under Fed. R. Evid. 803(4). See
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United States v. Yellow, 18 F.3d 1438, 1442 (8th Cir. 1994);
United States v. Newman, 965 F.2d 206, 210 (7th Cir. 1992);
Morgan, 846 F.2d at 949 n.17.
Statements offered under M.R.E. 803(4) must satisfy two
requirements to be admissible: “first the statements must be
made for the purposes of ‘medical diagnosis or treatment’; and
second, the patient must make the statement ‘with some
expectation of receiving medical benefit for the medical
diagnosis or treatment that is being sought.’” United States v.
Edens, 31 M.J. 267, 269 (C.M.A. 1990)(quoting United States v.
Deland, 22 M.J. 70, 75 (C.M.A. 1986), cert. denied, 479 U.S. 856
(1986)). While both requirements must be met, the "critical
question [in this inquiry] is whether [the patient] had some
expectation of treatment when she talked to the caregivers.”
Haner, 49 M.J. at 76. "The key factor in determining whether a
particular statement is embraced by the medical-treatment
exception is 'the state of mind or motive of the patient in
giving the information to the physician 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.'" Morgan, 40
M.J. at 408 (quoting United States v. White, 25 M.J. 50, 51
(C.M.A. 1987)). In United States v. Siroky, 44 M.J. 394, 400
(C.A.A.F. 1996), we recognized that "a small child may not be
able to articulate that he or she expects some benefit from
21
United States v. Donaldson, No. 02-0931/AR
treatment." Thus, we stated that where a child is involved, "it
is often important for their caretakers to explain to them the
importance of the treatment in terms that are understandable to
the child." Id. (citing United States v. Avila, 27 M.J. 62, 66
(C.M.A. 1988)). A military judge’s determination that a patient
made a statement for the purpose of medical diagnosis or
treatment out of an expectation of receiving medical benefit is
a question of fact that we review for clear error. Siroky, 44
M.J. at 399.
Looking only at J's visits with Dr. Rogers, there is little
evidence that J would have understood that Dr. Rogers was a
doctor from whom she could have expected some medical benefit.
Dr. Rogers testified that she did not wear a doctor’s coat, she
did not do a physical examination, she did not give shots or
take J’s temperature or blood pressure. Further her office was
in a shopping center and not a medical facility like a hospital
or an outpatient treatment office, which might otherwise have
suggested to J that Dr. Rogers was a doctor. Finally, she
testified that J's visits often consisted of the two of them
playing or drawing together.
Moreover, Dr. Rogers' testimony regarding what she told J
was contradictory. At one point she stated that she told J she
was a doctor, but not a shot doctor. On cross-examination,
though, she stated that she did not remember exactly what she
22
United States v. Donaldson, No. 02-0931/AR
told J. She added that she was not sure whether J knew what
kind of doctor she was or why J was there. Still later in her
testimony, the doctor testified that she was confident she told
J that she was a doctor and that her role was to help J deal
with what was bothering her and to help make things better.
Yet, on re-cross-examination, she again stated that she did not
recall what she told J. Further, Dr. Rogers stated that she did
not know whether J understood that she was a doctor or whether J
knew why she came to Dr. Rogers' office.
On the other hand, J's mother's testimony strongly supports
a conclusion that J had an expectation of medical benefit when
she visited with Dr. Rogers. BT testified that before she took
J to Dr. Rogers, she told J that she was going to take her to
"see a doctor who would help her get better and get over the
nightmares and the rages, the crying." She further stated that
J "seemed to understand" why she needed to see Dr. Rogers.
Although a child's testimony about his or her expectation
of receiving medical benefit would normally be given great
weight, J's in-court affirmation that she went to Dr. Rogers to
get better, while relevant, is not conclusive for several
reasons. First, she initially was unable or unwilling to
testify about why she went to see Dr. Rogers. It was only after
trial counsel asked her whether she went to see Dr. Roger "to
feel better" that she nodded her head in the affirmative.
23
United States v. Donaldson, No. 02-0931/AR
Second, when asked why she needed to get better, J was unable to
answer and only shrugged her shoulders. Finally, it is unclear
from J's statement whether, at the time she began her counseling
sessions with Dr. Rogers, she expected a medical benefit as
required by M.R.E. 803(4).
Based on the above testimony, the military judge made the
following findings:
Prior to going to see Dr. Rogers, the victim’s
mother told her that they were going to see a doctor
who would help her get better and get over the rages,
crying and nightmares . . . . At the beginning of the
first session, Dr. Rogers explained to the victim that
she was not a doctor who gives shots or looks in ears
or at teeth, but she was a doctor who talks about
“feelings” and “worries.” Dr. Rogers told the victim
that her role was to help the victim feel better. The
victim understood that Dr. Rogers was her doctor, and
that she went to Dr. Rogers to feel better.
Based on the totality of the evidence presented, we hold
that the military judge did not clearly err in finding that Dr.
Rogers told J she was a doctor and that she would help J feel
better. Moreover, while we recognize that this is a close case,
the testimony of J, and particularly that of her mother, support
the judge's finding that J understood that Dr. Rogers was a
doctor and that she was going to help J get over her problems.
Appellant argues that this case is similar to United States
v. Faciane, 40 M.J. 399 (C.M.A. 1994) and Siroky, both cases in
which we concluded that there was insufficient evidence to find
that a child/declarant had an expectation of receiving a medical
24
United States v. Donaldson, No. 02-0931/AR
benefit by talking with mental health professionals. However,
we believe this case is distinguishable from Faciane and Siroky.
In Faciane, a mother suspected her ex-husband of sexually
abusing their three-year-old daughter. 40 M.J. at 399-400. She
decided to file a police report and take her daughter to a
children's counselor at an area hospital. Id. at 401. She
testified that she told her daughter that “she was going to go
see a doctor there and there would be a lady there for her to
talk to.” Id. However, she later admitted that she could not
recall exactly what she told her daughter. Id. The counselor
who interviewed the child was not dressed like a doctor, did not
conduct any physical examination, and met with the child in an
office filled with toys. Id. The counselor was unable to
remember exactly what she told the child she was there for,
except that she thought she told the child that she was “going
to talk and play with her.” Id.
Based on these facts, we held that there was insufficient
evidence to support the military judge’s conclusion that the
child’s statements were admissible under M.R.E. 803(4). Id. at
403. In so doing we stated:
Although the child may have associated a hospital with
treatment and may have known that she was in a
hospital when she talked with Mrs. Thornton, there is
no evidence indicating that the child knew that her
conversation “with a lady” in playroom surroundings
was in any way related to medical diagnosis or
treatment. Mrs. Thornton testified that she did not
25
United States v. Donaldson, No. 02-0931/AR
present herself as a doctor or do anything medical.
There is no evidence that Mrs. Thornton was dressed or
otherwise identified as a medical professional. The
interview took place in a room filled with toys.
There is nothing suggesting that the child made the
statements with the expectation that if she would be
truthful, she would be helped.
Id. (emphasis added).
Similarly, in Siroky, a mother took her two-and-a-half-
year-old daughter to a psychotherapist, claiming that the child
had been sexually abused by the child’s father. 44 M.J. at 395.
The doctor was unable to remember whether she introduced herself
as a doctor. Id. She testified that she generally introduced
herself to her patients as a “helper” and was there to talk
about “feelings and to help” the child. Id. The doctor and the
child played with toys together. Id. When asked on cross-
examination whether she believed the child was aware of why the
family visited her office, the doctor stated, the child's
“family and mother . . . would refer to me as ‘the lady’ or ‘the
doctor.’” Id. at 397. She also stated that she did not think a
child so young would understand what a counselor was, although
the child would understand that she was a helper. Id.
Based on this testimony, we held that M.R.E. 803(4) was
inapplicable. In so holding we explained:
Even if there was clearly sufficient evidence to meet
the requirement that the statements were made for the
purposes of treatment, there is simply insufficient
evidence in the record to support the expectation-of-
treatment prong. As this prong focuses on the
26
United States v. Donaldson, No. 02-0931/AR
declarant’s state of mind, we 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 their caretakers to explain to them the
importance of the treatment in terms that are
understandable to the child. Not only did [the child]
not testify in this trial, but also there is no
evidence on the record that her mother explained the
importance of treatment to [the child]. Specifically,
the record does not give us any indication that the
statements made by [the child] concerning her father
on July 24, 1992, were believed by her to be pertinent
to treatment. Further as in Faciane, there is
insufficient evidence for us to draw the inference
that [the child] must have known that any statement
she made would help her in treatment. [The counselor]
did not present herself as a doctor and did not engage
in any activity which [the child] could have construed
as treatment. Further, the interviews with [the
child] were conducted in a room filled with toys.
Id. at 400-01 (emphasis added).
Unlike Faciane and Siroky, there is evidence in this case
to indicate that J understood that Dr. Rogers was a doctor.
Taken together, the testimony of Dr. Rogers, BT, and J, provided
the military judge with sufficient facts for him to find that J
expected some medical benefit from discussing her problems with
Dr. Rogers. We therefore hold that the judge did not abuse his
discretion by admitting J's statement to Dr. Rogers under M.R.E.
803(4), and therefore, in response to the granted issue,
conclude that the Court of Criminal Appeals did not err in
affirming the military judge's admission of J's statements to
Dr. Rogers.
27
United States v. Donaldson, No. 02-0931/AR
Because we hold that the military judge did not err in
admitting J's statements to Dr. Rogers under M.R.E. 803(4), we
need not reach whether the statements were also admissible as
residual hearsay under M.R.E. 807.
C. Applicability of J's Statements to Investigator Bass-Caine
Under M.R.E. 807.
Appellant's final argument is that J's statements to
Investigator Bass-Caine were inadmissible under M.R.E. 807.
M.R.E. 807 is a residual hearsay exception rule, permitting a
party to introduce hearsay evidence that does not otherwise fall
under the exceptions contained in M.R.E.s 803 and 804, where
certain requirements are met. The rule states:
A statement not specifically covered by Rule 803 or
804 but having equivalent circumstantial guarantees of
trustworthiness, is not excluded by the hearsay rule,
if the court determines that (A) the statement is
offered as evidence of a material fact; (B) the
statement is more probative on the point for which it
is offered than other evidence which the proponent can
procure through reasonable efforts; and (C) the
general purposes of these rules and the interests of
justice will best be served by admission of the
statement into evidence. However, a statement may not
be admitted under this exception unless the proponent
of it makes known to the adverse party sufficiently in
advance of the trial or hearing to provide the adverse
party with a fair opportunity to prepare to meet it,
the proponent’s intention to offer the statement and
the particulars of it, including the name and address
of the declarant.
(Emphasis added.)
Appellant argues that the lower court erred in concluding
that J's statements to Investigator Bass-Caine were reliable
28
United States v. Donaldson, No. 02-0931/AR
because they were accompanied by circumstantial guarantees of
trustworthiness like those supporting the other hearsay
exceptions.
In United States v. Giambra, 33 M.J. 331, 334 (C.M.A.
1991), we stated that for a hearsay statement to be admissible
under the residual hearsay exception it "must have 'equivalent
circumstantial guarantees of trustworthiness' as do the first 23
exceptions." In determining whether a statement is supported by
circumstantial guarantees of trustworthiness, we look to a
number of indicia of reliability. These may include, among
other things: (1) the mental state of the declarant; (2) the
spontaneity of the statement; (3) the use of suggestive
questioning; and (4) whether the statement can be corroborated.
United States v. Grant, 42 M.J. 340, 343-44 (C.A.A.F. 1995); see
United States v. Kelley, 45 M.J. 275, 281 (C.A.A.F. 1996);
United States v. Cox, 45 M.J. 153, 157 (C.A.A.F. 1996). Other
indicators of reliability may include the declarant’s age or the
circumstances under which the statement was made. Kelley, 45
M.J. at 281; see Cox, 45 M.J. at 157. A court's factual
findings on the existence of circumstantial guarantees of
trustworthiness are reviewed for clear error. United States v.
Workman, 860 F.2d 140, 144 (4th Cir. 1988). We accord a
military judge "considerable discretion" in admitting evidence
as residual hearsay. Kelley, 45 M.J. at 281-82.
29
United States v. Donaldson, No. 02-0931/AR
In this case, the Army Court of Criminal Appeals made
several findings to support its conclusion J's statements to
Investigator Bass-Caine had the kind of guarantees of
trustworthiness found in other hearsay exceptions. First, it
found that “the ‘spontaneity’ of [J's] nonverbal adjustment of
her clothing prior to touching her vagina indicates
trustworthiness.” Donaldson, ARMY No. 9900544, slip op. at 7.
In addition to the spontaneity of the statement, the court found
that less than sixteen hours had transpired between the incident
and the interview with the investigator, and the “events were
still fresh in [J's] young memory.” Id. at 8. The court
further found that J had no motive to fabricate. Id. Finally,
the lower court determined that J's statements to Investigator
Bass-Caine were corroborated by J’s statements to BT and Dr.
Rogers.
Appellant challenges these findings on several bases.
First, he asserts that J's action in adjusting her clothing to
show where Appellant touched her is not an indication of
reliability because "[i]t is not uncommon for a child of this
age to remove her clothing in front of an adult." Appellant
particularly notes that J's actions and her statement were not
surprising in light of the fact that J was present when her
mother recounted J's initial statement on at least three
30
United States v. Donaldson, No. 02-0931/AR
occasions--to Ms. Sandreth, Officer Hagen, and SK, the latter
discussion culminating in a heated argument.
In addition, Appellant objects to the lower court's finding
that despite the passage of time, the substance of the statement
showed that the "events were still fresh in [J's] young memory."
He argues that the lack of specificity in J's statement
demonstrates that the events were not fresh in J's memory, but
that she was relying on what her mother had told her. Appellant
further objects to the court's finding that J had no motive to
fabricate. He asserts that there is no support for this finding
and it is persuasive only if one assumes that Appellant is
guilty of the offense. Next, Appellant objects to the lower
court's reliance on United States v. Lingle, 27 M.J. 704, 708
(A.F. Ct. Crim. App. 1988) in reaching its conclusion that J's
tender age increased the probability that her statements were
truthful. Appellant argues that Lingle is inapplicable in this
case because J's statements were not made to a playmate, but
rather to an adult. Finally, because Appellant contends that
J's statements to her mother and Dr. Rogers are inadmissible, he
maintains that J's statements to the investigator were not
corroborated by admissible circumstantial evidence.
On the one hand, this Court has generally treated hearsay
statements solicited by police officers, particularly when they
are elicited in private conversations, with caution. United
31
United States v. Donaldson, No. 02-0931/AR
States v. Ureta, 44 M.J. 290, 296 (C.A.A.F. 1995)(citing United
States v. Pollard, 38 M.J. 41, 49 (C.M.A. 1993)). In addition,
in this case, J's statements to Investigator Bass-Caine were
preceded by several emotionally charged conversations between BT
and Ms. Sandreth, Officer Hagan, and SK, each of which J heard,
raising the concern that J's recollection of the events could
have been colored by her mother's view of the incident. As
Appellant notes, the lower court appears not to have considered
this concern in reaching its determination nor substantiated its
finding that J had no motive to fabricate.
On the other hand, we agree with the lower court that J's
spontaneous act of pulling her panties aside and placing her
finger by her vaginal area was an unusual event that supports a
finding of reliability. Investigator Bass-Caine testified that
she had never seen a child witness perform such an act.
Moreover, because we conclude that the military judge did not
err in admitting J's statements to her mother and Dr. Rogers, we
disagree with Appellant that J's statements were not
corroborated by admissible circumstantial evidence. Lastly, we
disagree with Appellant that J's statements did not contain the
degree of specificity normally associated with reliable
statements. J was able to identify who touched her, where she
was touched and the manner in which the touching occurred.
32
United States v. Donaldson, No. 02-0931/AR
Therefore, while there are points to consider against
admission of the statements as residual hearsay, Appellant has
failed to demonstrate that the military judge abused his
“considerable discretion” when he determined that the statements
were accompanied by circumstantial guarantees of
trustworthiness. Kelley, 45 M.J. at 281-82. We therefore
conclude that the lower court did not err when it held that the
military judge properly admitted J's statements to Investigator
Bass-Caine under M.R.E. 807.
CONCLUSION
The decision of the United States Army Court of Criminal
Appeals is affirmed.
33
United States v. Donaldson, No. 02-0931/AR
EFFRON, Judge (concurring in part and in the result):
I agree with the lead opinion with respect to the
admissibility of the testimony of BT and Dr. Carrie Rogers. I
write separately regarding the lead opinion’s conclusion that
the testimony of Investigator Tracy Bass-Caine was admissible
under the residual hearsay exception, Military Rule of Evidence
807 [hereinafter M.R.E.].
As our Court noted in United States v. Kelley, 45 M.J. 275
(C.A.A.F. 1996), the legislative history of the residual hearsay
exception indicates that the exception should be used “very
rarely, and only in exceptional circumstances." Id. at 280
(citations and internal quotations omitted). The express
exceptions to the hearsay rule are tightly drawn and are limited
to circumstances that offer assurance of reliability. M.R.E.
807 requires that the circumstances of the making of a statement
offered under the residual exception provide the same degree of
assurance of reliability as is found under the specific
exceptions.
The present case involves hearsay testimony by Investigator
Bass-Caine about the results of her interview with J, the 3-
year-old victim. In the few hours that preceded the interview,
J heard her mother engage in five emotionally charged
conversations in which her mother recounted details of the
incident to her sister, her best friend, an acquaintance of her
United States v. Donaldson, No. 02-0931
friend who was a deputy sheriff, Appellant's girlfriend, and a
police officer. J was so distraught during her mother’s
interchange with Appellant’s girlfriend that she covered her
ears with her hands and cried while the two women yelled and
cursed at each other.
The repeated, emotional recounting of the details by the
mother –- a person who would have the trust and confidence of
the child -- created a substantial risk of reinforcing the
mother’s description of the events in the mind of this 3-year
old, as distinct from her own recollection of the events. Under
these circumstances, there is a significant risk that J’s
responses to Investigator Bass-Caine involved an unreliable
regurgitation of the mother’s recitation rather than her own
recollection.
The risk was not ameliorated in this case by evidence that
would offer any objective assurance as to how the interview was
conducted. This is particularly important in view of the degree
of skepticism applicable when statements are sought by, and made
to, police investigators. See, e.g., United States v. Ureta, 44
M.J. 290, 296 (C.A.A.F. 1995). In the present case, the
questioning of J was undertaken by the investigator in private,
with no video or audio recording or other means of assessing the
details of the interview.
2
United States v. Donaldson, No. 02-0931
Under the circumstances of the case, this hearsay testimony
does not present the type of special circumstance demonstrating
guarantees of trustworthiness equivalent to the enumerated
hearsay exceptions. Nonetheless, in view of the admissibility
of the balance of the evidence against Appellant, any error in
admitting Investigator Bass-Caine’s testimony was harmless.
3