United States v. Mazza , 67 M.J. 470 ( 2009 )

UNITED STATES, Appellee
v.
Matthew W. MAZZA, Boatswain’s Mate Second Class
U.S. Navy, Appellant
No. 09-0032
Crim. App. No. 200400095
United States Court of Appeals for the Armed Forces
Argued April 28, 2009
Decided July 15, 2009
STUCKY, J., delivered the opinion of the Court, in which EFFRON,
C.J., and BAKER, ERDMANN, and RYAN, JJ., joined.
Counsel
For Appellant: Major Anthony W. Burgos, USMC (argued).
For Appellee: Major Elizabeth A. Harvey, USMC (argued);
Lieutenant Timothy H. Delgado, JAGC, USN, and Brian K. Keller,
Esq. (on brief).
Military Judges: J. P. Lisiecki and J. G. Meeks
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Mazza, No. 09-0032/NA
Judge STUCKY delivered the opinion of the Court.
We granted review in this case to determine whether the
Appellant’s civilian defense counsel (CDC) was ineffective by:
(1) soliciting human lie detector testimony; (2) failing to
object to admission of the victim’s videotaped interview; and
(3) permitting the videotape to be viewed during deliberations.
We find that the CDC was not ineffective, and affirm the
decision of the United States Navy-Marine Corps Court of
Criminal Appeals (CCA).
I. Background
Appellant was a boatswain’s mate second class (E-5) at the
time of his offenses. He was originally convicted at a general
court-martial of repeated indecent acts with his minor daughter,
AM, and of communicating indecent language to her. Article 134,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2000).
Court members sentenced him to a dishonorable discharge,
confinement for 108 months, and reduction to E-1. The CCA found
that the military judge had erred in denying a defense challenge
for cause against a court member, and authorized a rehearing.
United States v. Mazza, No. NMCCA 200400095, 2005 CCA LEXIS 265,
at *10-*11, 2005 WL 2105296, at *3-*4 (N-M. Ct. Crim. App. Aug.
29, 2005) (unpublished).
At his retrial, a general court-martial composed of members
convicted Appellant of indecent acts with AM and communicating
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indecent language to her, Article 134, UCMJ, and sentenced him
to a bad-conduct discharge and confinement for four years.
II. Appellant’s Second Trial
AM was eighteen when she testified at Appellant’s second
court-martial. She testified that Appellant’s sexual abuse of
her began when she was as young as six. Furthermore,
Appellant’s wife testified that Appellant had confessed to her
that he had molested their daughter.
A. Testimony of Dr. Horowitz
At Appellant’s second court-martial the Government offered
Dr. Sarah Horowitz, who had testified at the first trial, as an
expert witness in child sexual abuse cases. Dr. Horowitz was
qualified and testified.
Prior to Dr. Horowitz’s testimony, the military judge
restricted her to a general discussion of delayed disclosure of
child sex abuse cases. Dr. Horowitz was not to talk about the
particular witnesses in this case, but could discuss generally
delayed and tentative disclosure patterns in child sex abuse
cases. On direct examination, she did so.
The CDC’s overall theory was that the accusations made by
AM were false and that both AM and Appellant’s wife had motives
to lie. Thus, on cross-examination the CDC questioned Dr.
Horowitz concerning disclosure patterns in child sex abuse
cases. Based on his experience in the first trial, the CDC
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expected certain testimony from Dr. Horowitz on delayed and
false reports and intended to challenge her on those topics.
Specifically, the CDC asked Dr. Horowitz about a study
which the CDC believed contradicted her conclusions regarding
the delayed reporting of child sexual abuse. In response, Dr.
Horowitz stated that the study in question involved both adults
and children and that “the dynamics of incest” were “entirely
different.” The CDC then pursued a line of questioning
regarding “interviewer bias,” “transference,” “secondary gain,”
and “malingering,” implying that such issues could be
responsible for the delayed reporting in the instant case. Dr.
Horowitz disagreed.
During the course of these questions, the military judge
stepped in to caution the CDC that if he required a “yes or no
answer” he needed to ask less convoluted questions. The
military judge instructed the CDC to re-ask his question, but
the CDC instead stated that Dr. Horowitz should respond to his
earlier question regarding the prevalence of malingering and
primary or secondary gains in cases of sexual abuse. She did,
stating that in cases of child sexual abuse there was a six
percent rate of false accusation and that in cases of false
accusation it was very rarely the child victim who made the
false accusation. At this point, the military judge instructed
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the members to leave the courtroom and began a colloquy with the
CDC:
MJ: When I stop somebody, I don’t want you to come
back to me, and basically say, “I am going to let
her testify.” I’ve got other concerns that I’ve got
to worry about.
It would appear to me, as we start throwing out
statistics and things along these lines, that there
may be issues that you are not thinking about or
objecting to, but I’ve got to be concerned about
contamination of the members.
I stopped her, and you interrupted me stopping
her because of concern that what she was talking
about, statisticwise [sic], was going to perhaps
damage or present evidence that was not admissible
to the members.
. . . .
Okay. Well again, in the area of false report,
okay, she brought that up. That’s what I was
attempting to stop. Okay?
Because, frankly, I don’t know why I didn’t
allow anything to come in, and two -- are you
seeking to get that particular information in front
of the members so that you can attack it?
[CDC]: Absolutely, yes.
. . . .
MJ: You are specifically wanting her -- let me make
sure I’m track[ing]. You are specifically wanting
her to get into detail about the Canadian study and
other studies concerning false reporting, and the
low level of that reporting?
Is that -- I just want to make sure --
[CDC]: Yes.
. . . .
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MJ: And you’ve considered -- you’ve considered the
consequences?
[CDC]: Yes.
MJ: I am not trying your case, but I want to make
sure because otherwise, I stopped her because of
that concern.
[CDC]: And I appreciate that, sir, and that’s why
I’ve come with the books that we discussed last time
when we did the 39(a) with what I think is the
appropriate information to cross-examination and
examine her upon the terms of this issue.
MJ: Okay. I understand.
You are wanting to get into this particular
area?
[CDC]: Yes.
MJ: Okay. As long as we are clear on that
particular point, because otherwise I would not
allow the government to presented [sic] any
information on false reporting.
[CDC]: As long as it is general and educational.
MJ: Well, the problem is it -- once you’ve opened
the door, the door is open. I have no idea what the
government’s going to do in return.
The CDC asked Dr. Horowitz about studies that showed
false reporting rates in six to eight percent of child
abuse allegations, and that with the hundreds of
thousands of child abuse reports each year that would
equate to at least six to eight thousand false reports.
Dr. Horowitz acknowledged false reporting but maintained
that most false reports are made by parents or other
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adults, children rarely lied about child sex abuse, and
when they did it was usually quite obvious.
Following the cross-examination of Dr. Horowitz, the
members asked if Dr. Horowitz had interviewed AM and whether a
tape existed of that interview. The questions also generally
explored Dr. Horowitz’s opinions as to a child’s recollection of
earlier traumatic events. When the CDC objected to these
questions, the military judge responded:
[Y]ou got into this area with your cross-
examination, and that’s why the members are asking
the question is because [sic] you opened the door to
that particular area.
. . . .
. . . You opened some fairly broad doors, and
that’s why I asked you the questions that I asked
during our last 39(a) session after I dismissed the
members.
Because you were opening a very, very, very
large door; one I would not have, without you
specifically wanting to open up, allowed to be
opened. That door seems to have engendered a large
number of questions on the part of the members that
would not have been there but for you opening that
door.
In response to the members’ questions, Dr. Horowitz further
discussed questions of false reporting and false allegations, as
well as markers one might look for to detect such falsehoods.
Again, the CDC objected, and again the military judge stated
that the CDC had opened the door to these questions. The
military judge did, however, prevent Dr. Horowitz from
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discussing whether she believed or disbelieved any particular
witness. He also told the members that it was their
responsibility to “determine the credibility of the witnesses,
and what the facts in [the] case are.” “No expert witness or
other witness,” the military judge said, “can testify that the
alleged victim’s account of what occurred is true or credible.”
During closing arguments, the CDC returned to Dr.
Horowitz’s testimony. He noted that even using conservative
figures of the percentage of false reports, when applied to the
very large number of reports of child sex abuse each year, would
yield a large number of false reports.
And, again, go back to that millions. Even on
the conservative figure it may not sound like a lot
when you say 4 to 8 percent, but when you look at
actual numbers and then you take into account what
she, Dr. Horowitz, had to agree that, yes, adolescents
can be good liers [sic].
B. The Videotaped Interview with AM
There were two videotapes of interviews with AM; Dr.
Horowitz did not participate in either interview, nor had she
viewed the tapes of the interviews. During their questioning of
Dr. Horowitz the members requested to view the videotapes, and
the CDC objected to the tapes admission on hearsay grounds. The
military judge considered whether the videotape could be seen as
a prior consistent or inconsistent statement under Military Rule
of Evidence (M.R.E.) 801(d)(1)(B) or M.R.E. 801(d)(1)(A); or as
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United States v. Mazza, No. 09-0032/NA
a rebuttal of accusations of inconsistencies on the part of AM
under M.R.E. 613. Following review of the tape and a Rule for
Courts-Martial (R.C.M.) 802 conference, the military judge
admitted only one tape, as the other was determined to be
irrelevant and to have been made after a motive to fabricate
could have arisen. Although portions of the videotape were
found by the military judge to potentially be “subject to
objection,” neither party ultimately objected to the admission
of the tape. When he admitted the tape, the military judge told
the members that it would be made available to them during
deliberations.
In closing arguments, the CDC encouraged the members to
review the videotape and compare the taped allegations to the
statements AM made in court and elsewhere. Summarizing the
Government’s case as one of “false allegation[s]” and “false
report[s],” the CDC encouraged the members to “compare that
video to what’s been said in this room and what’s been said at
other times.” “Ask yourselves,” the CDC continued, “does what
she says in the video itself make sense and how inconsistent it
is with what she now presents to you . . . .”
Finally, in the standard jury instructions, the military
judge instructed the members that it was their responsibility to
assess the credibility of the witnesses, and they could not rely
on an expert witness to make that determination for them.
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III. Discussion
A. Appellant’s Arguments
Appellant argues that the CDC provided ineffective
assistance of counsel (IAC) by (1) soliciting the testimony from
Dr. Horowitz -- which the CDC characterized as “human lie
detector testimony”; (2) failing to object to the admission of
the videotape; and (3) allowing the videotape to be viewed
during deliberations without supervision.
Appellant argues that these errors “were well beyond the
range of reasonably, competent” assistance of counsel.
Appellant argues that the CDC’s performance was deficient as
this Court’s decisions indicate that “human lie detector
testimony,” or “credibility quantification testimony,” is
inadmissible as it invades the members’ exclusive province of
determining credibility and violates the rule that witnesses may
only testify regarding a victim’s character for truthfulness.
United States v. Brooks, 64 M.J. 325, 330 (C.A.A.F. 2007).
Appellant further argues that this alleged error by the CDC
prejudiced Appellant as this was a case which turned on the
credibility of Appellant’s accuser. There were no third-party
witnesses to the alleged abuse and no corroborating physical
evidence. Furthermore, the military judge’s instruction to the
members regarding their limited use of Dr. Horowitz’s testimony
was not timely and was insufficiently specific as he did not
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explicitly tell them to disregard the statistical evidence cited
by Dr. Horowitz.
It was also error, Appellant asserts, for the CDC to fail
to object to the admission of the videotaped interview as it was
“devastating to Appellant’s case.” Appellant argues that proper
foundation was not laid for the videotape, and it was hearsay.
Furthermore, Appellant argues that the interview seen on the
videotape did not support defense counsel’s theory of
fabrication as AM’s statements on the videotape were not
inconsistent with her later statements. Allowing the members to
view the videotape during deliberations, Appellant argues, only
compounded these errors, and additionally was error itself as
the videotape ought to have been prohibited from the
deliberation room.
B. Analysis
To prevail on a claim of IAC, an appellant must show both
that the counsel’s performance was deficient and that the
deficiency resulted in prejudice. United States v. Strickland,
466 U.S. 668, 687 (1984); United States v. Scott, 24 M.J. 186,
188 (C.M.A. 1987). Ultimately, “[t]he benchmark for judging any
claim of ineffectiveness must be whether counsel’s conduct so
undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just
result.” Strickland, 466 U.S. at 686. A successful
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ineffectiveness claim requires a finding of both deficient
performance and prejudice; there is no requirement that we
address “both components of the inquiry if the defendant makes
an insufficient showing on one.” Id. at 697. We review both
prongs of the Strickland analysis de novo. United States v.
Anderson, 55 M.J. 198, 201 (C.A.A.F. 2001); United States v.
Wiley, 47 M.J. 158, 159 (C.A.A.F. 1997).
Our analysis of counsel’s performance is highly
deferential. Strickland, 466 U.S. at 689. We are not to assess
counsel’s actions through the distortion of hindsight; rather we
are to consider counsel’s actions in light of the circumstances
of the trial and under the “strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Id. (quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955)). As a general matter, we
“‘will not second-guess the strategic or tactical decisions made
at trial by defense counsel.’” Anderson, 55 M.J. at 202
(quoting United States v. Morgan, 37 M.J. 407, 410 (C.M.A.
1993)). Where, as here, an appellant attacks the trial strategy
or tactics of the defense counsel, the appellant must show
specific defects in counsel’s performance that were
“unreasonable under prevailing professional norms.” United
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States v. Perez, 64 M.J. 239, 243 (C.A.A.F. 2006) (citations and
quotation marks omitted).
1) Dr. Horowitz’s Testimony
Appellant relies on Brooks, 64 M.J. 325, for the
proposition that it was error for the CDC to discuss the rates
of false accusations of sexual abuse among child victims. In
Brooks -- which post-dates the trial in this case -- we
determined that testimony by an expert regarding the percentage
of false claims of sexual abuse made by children was the
“functional equivalent of vouching for the credibility or
truthfulness of the victim.” Id. at 326-27. We found that the
testimony was the equivalent of human lie detector testimony and
reversed. Id. at 326, 328-30.
There are key differences between this case and Brooks.
The testimony in the instant case was not extracted by the
Government, but rather by the defense itself. The defense
specifically questioned Dr. Horowitz as to the rates of false
reporting. The record clearly establishes that the CDC’s theory
of the case was that AM’s testimony was fabricated and
inconsistent. When the military judge questioned the CDC as to
whether he truly wanted to pursue this line of argument, the CDC
responded affirmatively. He specifically intended to question
Dr. Horowitz whether child-accusations of sex abuse were
reliable.
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Given that this case was essentially a credibility contest
between Appellant and his daughter, Appellant has not overcome
the presumption that it was a reasonable strategic decision,
under the circumstances of this case and prevailing professional
norms, for the defense counsel to seek to establish that the
daughter’s testimony could be a false allegation. Appellant has
failed to demonstrate that it was unreasonable, under the
circumstances and prevailing professional norms, for counsel to
argue that AM was lying in this specific case by citing evidence
showing that among more than 100,000 reports there were at least
six to eight thousand false reports. Further, defense counsel
used the statistical testimony during closing argument to remind
the court members that thousands of false reports occur every
year, even using conservative estimates.
2) Admission of the Videotape
Appellant asserts that admission of the videotape
compounded the error created during the cross-examination of Dr.
Horowitz, and it resulted in the members viewing the videotape
during deliberations. Additionally, the CDC failed to preserve
his objection to the admission of the videotape as hearsay, and
failed to object to the admission of the videotape on
foundational grounds.
Whether or not the videotape was properly authenticated or
admitted, the question before us is whether counsel’s
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United States v. Mazza, No. 09-0032/NA
performance with regard to it was deficient. It was not. It
was the CDC’s strategy to have the members view the videotape
and consider the testimony therein. During his closing
argument, the CDC advanced a theory that AM had fabricated her
allegations and that her statements were inconsistent. He asked
the members to “Go back and at least start out and replay that
video and compare that video to what was said in this room and
what’s been said at other times and see where that brings you.”
Simply put, the videotape was part of the CDC’s trial strategy -
- a strategy that Appellant has failed to show was unreasonable
under prevailing professional norms; whether Appellant now
agrees with that strategy is beside the point.
3) Viewing the Videotape during Deliberations
As noted above, the CDC obviously wished the members to
view the tape during their deliberations, going so far as to
specifically request that they do so. Appellant cites R.C.M.
921(b) to argue that what evidence members may take into the
deliberation room with them is limited. But that rule states:
“Unless otherwise directed by the military judge, members may
take with them in deliberations their notes, if any, any
exhibits admitted in evidence, and any written instructions.”
Id. (emphasis added). As the videotape was admitted into
evidence and the military judge specifically told the members
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that they could view the tape during deliberations, there was no
violation of R.C.M. 921(b).
It has been said that hard cases make bad law. It may be
said with equal truth that hard cases may make otherwise
questionable trial tactics reasonable. The CDC in this case had
a difficult assignment: to defend an accused whose daughter
testified to repeated instances of abuse performed upon her, and
whose wife testified to his admission to such abuse. Attacking
the credibility of this testimony and suggesting its fabrication
was one of the few options the CDC had. While a different
defense counsel might have chosen different tactical steps, the
tactics used were part of a trial strategy that Appellant failed
to show was unreasonable under the circumstances and prevailing
professional norms. Because Appellant has not satisfied the
first Strickland prong, we need not address the second prong.
IV. Decision
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
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