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 Feb. 4, 2004) (unpublished).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