United States v. Gunkle

UNITED STATES, Appellee v. John D. GUNKLE, Staff Sergeant U.S. Army, Appellant No. 00-0092 Crim. App. No. 9701960 United States Court of Appeals for the Armed Forces Argued November 8, 2000 Decided May 21, 2001 GIERKE, J., delivered the opinion of the Court, in which CRAWFORD, C.J., and EFFRON and BAKER, JJ., joined. SULLIVAN, J., filed an opinion concurring in part and in the result.

Counsel For Appellant: Captain Katherine A. Lehmann (argued); Colonel Adele H. Odegard, Major Jonathan F. Potter, and Captain David S. Hurt (on brief); Lieutenant Colonel David A. Mayfield and Major Scott R. Morris.

For Appellee: Captain Steven D. Bryant (argued); Major Bryan T. Broyles and Captain Mary E. Braisted (on brief); Colonel David L. Hayden, Colonel Russell L. Estey, Lieutenant Colonel Edith M. Rob, and Captain Katherine M. Kane.

Military Judge: Kenneth D. Pangburn THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION. United States v. Gunkle, No. 00-0092/AR Judge GIERKE delivered the opinion of the Court.

A military judge sitting as a general court-martial

convicted appellant, contrary to his pleas, of two specifications

each of indecent liberties and indecent acts, and one

specification of cross-dressing in a woman’s clothing under

circumstances that were service-discrediting and prejudicial to

good order and discipline, in violation of Article 134, Uniform

Code of Military Justice, 10 USC § 934 . The adjudged and

approved sentence provides for a dishonorable discharge,

confinement for 2 years, total forfeitures, and reduction to the

lowest enlisted grade. The Court of Criminal Appeals affirmed

the findings and sentence in an unpublished opinion. This Court

granted review of the following issues:

I

WHETHER THE ARMY COURT ERRED IN FINDING THAT THE MILITARY JUDGE’S ABUSE OF DISCRETION WAS HARMLESS WHEN HE ADMITTED IN REBUTTAL EXCERPTS FROM AN OUT-OF-COURT INTERVIEW OF [DG], ONE OF THE ALLEGED CHILD VICTIMS, AND ALLOWED A SOCIAL WORKER TO TESTIFY AS TO STATEMENTS MADE BY [LA], THE OTHER ALLEGED CHILD VICTIM, DURING AN OUT-OF-COURT INTERVIEW, EVEN THOUGH THE ALLEGED VICTIMS TESTIFIED.

II

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN DENYING THE DEFENSE AN EXPERT THAT THE MILITARY JUDGE DETERMINED WAS NECESSARY TO EVALUATE THE TECHNIQUES USED BY THE SOCIAL WORKERS WHEN THEY INTERVIEWED THE ALLEGED VICTIMS, DESPITE THE FACT THAT THE MILITARY JUDGE ALLOWED INTO EVIDENCE EXCERPTS OF [DG’S] INTERVIEW AND ALLOWED ONE SOCIAL WORKER TO TESTIFY AS TO STATEMENTS MADE BY [LA] DURING AN OUT-OF- COURT INTERVIEW.

III

WHETHER THE STAFF JUDGE ADVOCATE’S RECOMMENDATION, WHICH INCORRECTLY REFLECTED THAT APPELLANT HAD BEEN FOUND GUILTY OF CERTAIN TYPES OF EGREGIOUS CHILD MOLESTATION, PREJUDICED APPELLANT WHEN THE CONVENING AUTHORITY CONSIDERED CLEMENCY.

2 United States v. Gunkle, No. 00-0092/AR

For the reasons set out below, we affirm.

ISSUE I: HARMLESS ERROR A. Factual Background The prosecution theory was that appellant surreptitiously

molested the two 5-year-old victims for sexual gratification.

The Court of Criminal Appeals summarized the prosecution evidence

as follows:

On three occasions over the course of several months, the appellant appeared in the presence of his five-year-old daughter, DG, and her five-year-old friend, LA, while dressed in female attire consisting of thigh-high stockings, a bra, panties, and a slip. He exposed his penis to both girls, and allowed his daughter to fondle it.

At trial, both girls described the above encounters. LA testified that DG played with the appellant’s penis by holding it and moving it. She stated that the appellant’s penis was “big,” and that “pee” came out of it on one occasion, although she gave contradictory accounts of whether the appellant’s penis was pointing upwards or down to the floor. DG then explained that she played games with the appellant’s penis by taking turns with LA pulling down the appellant’s underwear, and that she held the appellant’s penis on three occasions, while LA touched it on one occasion. Both girls denied that the appellant ever pushed their hands away or otherwise told them to stop.

Unpub. op. at 2 (footnote omitted).

The prosecution introduced appellant’s written statement,

which he gave to agents of the U.S. Army Criminal Investigation

Command (CID). In this statement, appellant admitted that he had

been cross-dressing for sexual gratification since he was about

13 years old. He stated that in September or October of 1996, DG

and LA discovered him dressed in female clothing. The girls

giggled, and appellant told them he was trying on a costume. He

stated that in November 1996, DG and LA again discovered him in 3 United States v. Gunkle, No. 00-0092/AR

female clothing. On this occasion, DG pulled up his slip,

grabbed his penis, and said, “I see your wee wee.” He said that

he brushed DG’s hand away, the girls giggled, and he walked to

his bedroom to change clothes.

Appellant told the CID that on March 12, 1997, DG and LA

again surprised him when he walked from his bedroom to the

kitchen in female clothing. He said that DG pulled up his slip,

and he felt someone tugging on his penis and pulling down his

panties. He admitted having an erection during this third

episode. Finally, appellant told the CID that DG grabbed his

penis on two other occasions, once while he was urinating and

once as he was coming out of the shower. He told the CID that

during the three encounters with DG and LA, he was not looking

for sexual gratification.

The theory of the defense was that appellant cross-dressed

in female clothing for sexual stimulation, that his encounters

with DG and LA were inadvertent, that DG’s touching was uninvited

and innocent, and that appellant did not seek sexual

gratification from his encounters with DG and LA. The Court of

Criminal Appeals summarized appellant’s in-court testimony as

follows:

The appellant testified in his defense consistent with his previously admitted confession, describing in more detail the three separate encounters which he characterized as unplanned and inadvertent. He denied that the girls touched him at all during the first episode, which occurred in DG’s bedroom; claimed that DG merely poked at his covered genitals during the second, which occurred in the hallway near the bathroom; and admitted only that DG had pulled up his slip and tugged at his underwear during the third, again in the hallway. He stated that he slapped or pushed DG’s hand away both times she tried to touch him. He agreed that his penis was “semi-erect” during 4 United States v. Gunkle, No. 00-0092/AR one encounter, but averred that his arousal stemmed solely from the titillation of cross-dressing, not from the contact with the young girls.

Id. at 2 . Appellant concluded his in-court testimony by

unequivocally denying that he solicited or allowed the girls to

touch him and denying that the touching sexually aroused him.

Over defense objection, the military judge permitted the

prosecution to present rebuttal testimony from the two social

services forensic interviewers who conducted videotaped

interviews of DG and LA. The videotapes themselves were not

offered in evidence. Ms. Regina Downum remembered interviewing

DG but could not remember what she said. She identified an

extract from the transcript of the interview, and she testified

that it “appear[ed] to be” an accurate reflection of the

interview. The transcript was admitted in evidence as past

recollection recorded. The transcript reflects that DG told Ms.

Downum that she, LA, and appellant played a game where appellant

would lie down, DG would pull up appellant’s skirt, LA would pull

down his underwear, and then DG would feel his “wee-wee.” DG

stated that “it felt like it had pee in it.”

Ms. Peg Sneller-Hamilton testified that she interviewed LA.

Trial counsel asked what LA said, and Ms. Sneller-Hamilton

testified as follows:

That [LA] said that she and [DG] would play with [DG’s] dad -- as I think she called it a “wee-wee,” and that they pulled down his pants -- and she demonstrated, I think the words were like “swishing it back and forth and pulling on it,” and she demonstrated doing that. I think they touched it when it was in the underwear too, and also when it was out of the underwear. But she also said that the pants were pulled down. That’s what I remember about that.

5 United States v. Gunkle, No. 00-0092/AR

Trial counsel then asked how far LA said they pulled the

underwear down, and Ms. Sneller-Hamilton responded as follows:

I want to say she showed on the tape by pointing at her own leg. I’m going to say mid thigh, but that’s -- I think on the tape I said, “Show me where they were pulled down,” and I think she showed on her own leg where they were pulled.

The Court of Criminal Appeals held that the military judge

erred by admitting the testimony of the two forensic interviewers

and the interview transcript, and neither side has challenged

that holding. The parties disagree on the question whether the

military judge’s error was harmless.

B. Discussion Appellant now argues that the military judge’s error was

prejudicial because it allowed the prosecution to use hearsay to

establish the “previously unproven contention that appellant was

aroused by [DG’s] touch.” Final Brief at 10. The Government

argues that the error was a nonconstitutional evidentiary error

and that it was harmless. Answer to Final Brief at 11.

We review de novo the lower court’s determination that the

error was harmless. United States v. Diaz, 45 MJ 494, 496

(1997). The test for nonconstitutional evidentiary error is

whether the error had a substantial influence on the findings.

Kotteakos v. United States, 328 U.S. 750, 765 (1946); United

States v. Pollard, 38 MJ 41, 52 (CMA 1993). In this case, the

parties agree that the error was nonconstitutional and that the

Kotteakos test is applicable.

We evaluate prejudice from an erroneous evidentiary ruling

by applying the four-part test enunciated in United States v.

Weeks, 20 MJ 22, 25 (CMA 1985). We weigh (1) the strength of the 6 United States v. Gunkle, No. 00-0092/AR

prosecution case; (2) the strength of the defense case; (3) the

materiality of the evidence at issue; and (4) the quality of the

evidence at issue. See United States v. Kerr, 51 MJ 401, 405

(1999).

We hold that the error was harmless. Turning first to the

comparative strengths of the prosecution and defense cases, we

note that the prosecution relied on the sworn testimony of DG and

LA, which was specific and unequivocal, and the defense relied on

appellant’s testimony, which was also specific and unequivocal.

However, the believability of appellant’s assertion that all the

encounters with DG and LA were inadvertent and unwanted was

seriously diminished by the repetitive nature of the encounters.

The evidence was material to the issue whether appellant

attempted to dissuade the girls from touching him or permitted

them to uncover his genitals and touch them, but it was

cumulative in that it recited substantially the same facts as the

in-court testimony of DG and LA. The disputed rebuttal testimony

added virtually nothing to the factual dispute whether

appellant’s female clothing or DG’s touching aroused him. The

case was tried before a military judge, who had ample opportunity

to assess the credibility of DG and LA, as well as appellant.

The military judge had already reviewed the interview transcripts

in connection with the defense request for expert assistance, and

had determined that portions of LA’s interview were of

questionable reliability. Based on the entire record, we are

satisfied that the error did not have a substantial influence on

the military judge’s findings.

7 United States v. Gunkle, No. 00-0092/AR ISSUE II: EXPERT ASSISTANCE A. Factual Background Before entry of pleas, the defense requested that the

Government provide funds for an expert, Dr. Gordon, to be a

defense consultant and to assist the defense in trial preparation

by reviewing the videotapes of the interviews to determine if

suggestive or coercive interviewing techniques made them

unreliable. The defense also wanted Dr. Gordon to testify and

challenge the trustworthiness of the interviews of the two girls

if the prosecution succeeded in having the videotaped interviews

admitted in evidence.

The military judge did not view the videotapes or admit them

in evidence. Instead, he read the written transcripts of the

interviews. He concluded that the interviews, “overall, were not

unduly suggestive or coercive.” He concluded that, based on the

transcript, the interview of DG “was proper and not subject to

any coaching or suggestion by the interviewer,” and that “[a]ll

the substantive responses were given to non-leading type

questions.” He also found that “the responses in the first third

of the interview [of LA] were entirely proper,” and that “she

also seemed to volunteer detailed statements adverse to the

accused.”

In the remainder of the interview, he found that “leading

questions which may have been suggestive were used by Mrs. Peg

Sneller-Hamilton.” He concluded that the suggestive questions

produced responses that “would give [him] some doubt as to their

reliability.” He opined that “expert assistance might be helpful

to interpret whether the interviewed [sic] was even focused or 8 United States v. Gunkle, No. 00-0092/AR

paying attention to the questions,” but he concluded that the

issue could be resolved without an expert, either by deleting

those questions and answers from the transcript, bringing out the

suggestive nature of the questions on cross-examination of the

interviewer, or by a “proper instruction crafted to advise the

trier-of-fact as to what can be considered or the dangers in some

questions.”

With respect to the possibility that a parent, interviewer,

criminal investigator, or social worker “engaged in intentional

or unintentional acts of coercion or subduction while

interviewing any child witness in the case,” the military judge

opined that he did not “really see how an expert can tell you

what took place prior to the interview” without becoming a “human

lie detector.” Accordingly, he ruled that the defense had not

shown why Dr. Gordon’s assistance was necessary for trial

preparation.

In a conference under RCM 802, Manual for Courts-Martial,

United States (1995 ed.),1 before the hearing on the request for expert assistance, defense counsel indicated that appellant might pay for Dr. Gordon’s examination of the interview transcripts.

After denying the defense request, the military judge informed

the defense that if they hired Dr. Gordon, and if she reviewed

the transcripts and discovered information favorable to the

defense, he would “consider that question when it comes up.”

1 This provision is unchanged in the current Manual.

9 United States v. Gunkle, No. 00-0092/AR Thereafter, appellant hired Dr. Gordon at his own expense.

At a subsequent hearing, defense counsel renewed his request that

Dr. Gordon be produced to testify for the defense. Appellant did

not renew his request for funding or request reimbursement for

the personal funds he had expended. Defense counsel informed the

military judge that appellant had hired Dr. Gordon, that she had

reviewed the videotaped interviews, and that she was “suspicious

of the reliability of certain portions” of LA’s videotaped

interview and “a great deal of” DG’s interview.

The military judge opined that Dr. Gordon “would only be

needed in the event that the young ladies are unable to testify

and the video tape has to come into evidence or is offered into

evidence.” The military judge deferred a ruling on the request,

tentatively agreeing with defense counsel that Dr. Gordon might

be a necessary witness. The military judge concluded the hearing

on this issue by telling the defense:

If the video is to come in, in my view either the witness should be produced or some agreement should be made concerning what her testimony would be. It should be either stipulated to or an affidavit should be received. That’s my opinion at this point, however, that’s all prospective.

He then denied the motion to produce Dr. Gordon on the ground

that it was “a bit premature.”

After the military judge overruled a defense objection to

rebuttal testimony by the two forensic interviewers, defense

counsel asked if he would be permitted to consult with Dr. Gordon

after the rebuttal testimony. The military judge responded,

“Well, I think you could do it for surrebuttal at least.” After

the two forensic interviewers testified, defense counsel obtained 10 United States v. Gunkle, No. 00-0092/AR

a 10-minute recess, consulted by telephone with Dr. Gordon, and

announced that the defense had no further evidence to present.

B. Discussion An accused is entitled to expert assistance provided by the

Government if he can demonstrate necessity. United States v.

Garries, 22 MJ 288, 291 (CMA 1986). To demonstrate necessity, an

accused “must demonstrate something more than a mere possibility

of assistance from a requested expert . . . .” An accused “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 MJ 88, 89 (CMA 1994), quoting Moore v. Kemp, 809 F.2d 702, 712 (11th Cir.),

cert. denied, 481 U.S. 1054 (1987). This Court has adopted the

three-pronged test for determining necessity: (1) Why is the

expert needed? (2) What would the expert accomplish for the

defense? and (3) Why is the defense counsel unable to gather and

present the evidence that the expert assistant would be able to

develop? United States v. Ford, 51 MJ 445, 455 (1999), quoting United States v. Gonzalez, 39 MJ 459, 461 (1994); see also United

States v. Ndanyi, 45 MJ 315, 319 (1996). We review a military

judge’s ruling on a request for expert assistance for abuse of

discretion. Ford, supra.

In this case, we need not decide whether the military judge

abused his discretion when he denied the defense request for

pretrial expert assistance, because any error was rendered moot

by subsequent actions in the case. Appellant requested funds for

Dr. Gordon to review the videotapes and interview transcripts to 11 United States v. Gunkle, No. 00-0092/AR

determine whether the young victims’ accounts were influenced by

suggestive interview techniques or their own cognitive

limitations. The written motion and litigation focused on

preparing and qualifying Dr. Gordon to testify, should the

prosecution introduce the tapes at trial. After the military

judge denied the defense request, appellant hired Dr. Gordon at

his own expense to review the tapes and transcripts. Dr. Gordon

conducted the requested review, which provided the basis for

appellant’s motion to produce Dr. Gordon as a witness. Because

appellant received the expert assistance he sought, albeit at his

own expense, this issue is moot.2 With respect to the defense request that Dr. Gordon be

produced at government expense to testify for the defense, the

military judge left the door open by informing the defense that

he would reconsider his ruling if Dr. Gordon reviewed the

transcripts and could offer information favorable to the defense.

Despite multiple invitations to proffer evidence from Dr. Gordon,

defense counsel did not renew his request that Dr. Gordon be

produced to testify. Instead, defense counsel telephonically consulted with Dr. Gordon and then informed the military judge

that the defense had no further evidence to present. We hold

that the defense’s failure to renew its request waived the issue.

See United States v. Browning, 54 MJ 1, 9 (2000); United States

v. Rockwood, 52 MJ 98, 105 (1999); United States v. Holt, 52 MJ

2

Even if the military judge erred, the only remedy available to appellant would be reimbursement for expenses that should have been paid by the Government, and appellant has not raised the issue of reimbursement in this appeal.

12 United States v. Gunkle, No. 00-0092/AR

173, 186 (1999); United States v. Cardreon, 52 MJ 213, 216

(1999).

ISSUE III: ERRONEOUS POSTTRIAL RECOMMENDATION A. Factual Background In his posttrial recommendation, the Staff Judge Advocate

(SJA) correctly reflected the findings of the military judge by

exceptions and substitutions. The SJA did not inform the

convening authority that the military judge had granted a defense

motion for a finding of not guilty with respect allegations that (1) appellant had penetrated LA’s vagina with a hand-held mirror;

(2) appellant had caused LA to fondle his buttocks and rectum, and caused her to sit on his face while clothed; and (3) appellant had caused DG to fondle his buttocks and rectum and to sit on his abdomen.

The military judge also sustained the defense motion for a

finding of not guilty with respect to “causing” DG and LA to

perform the acts charged, and substituted “allowing” for

“causing” the acts to occur. The effect of the military judge’s

ruling was to acquit appellant of the three acts set out above

and to change the character of the remaining indecent acts from

actively “causing” the girls to participate to passively

“allowing” the girls to touch him. The SJA did not mention any

of the above rulings.

Appellant submitted a clemency petition but did not assert

that the SJA’s recommendation was erroneous, confusing, or

defective as written. In the clemency petition, defense counsel

pointed out the above-described favorable rulings of the military

judge. The record contains a memorandum, personally signed by 13 United States v. Gunkle, No. 00-0092/AR

the convening authority on the date of his action, specifically

stating that he considered defense counsel’s submission. The SJA

did not submit an addendum to his recommendation or in any way

dispute defense counsel’s description of the military judge’s

rulings.

B. Discussion RCM 1106(d)(3)(A) requires the SJA to provide the convening

authority with “concise information as to . . . [t]he findings

and sentence adjudged by the court-martial.” We agree with the

Court of Criminal Appeals that RCM 1106(d)(3)(A) required only

that the SJA state “the nature of the crimes, indecent liberties

or indecent acts, without specifying exactly what acts the

appellant was found guilty of or what language was excepted or

substituted.” Unpub op. at 10. The SJA’s recommendation

described the nature of appellant’s crimes with sufficient

accuracy “to assist the convening authority to decide what action

to take on the sentence in the exercise of command prerogative.”

RCM 1106(d)(1). The burden was on appellant to provide any

additional information deemed favorable to the defense.

Appellant provided such additional information in his clemency

submission, and the convening authority specifically considered

appellant’s submission before approving the adjudged sentence.

On these facts, we hold that there was no error at all, much less

plain error. See RCM 1106(f)(6). DECISION The decision of the United States Army Court of Criminal

Appeals is affirmed.

14 United States v. Gunkle, 00-0092/AR SULLIVAN, Judge (concurring in part and in the result):

I agree with the majority’s resolution of Issue I and part

of its resolution of Issue III. I agree with the result reached

on Issue II. However, I have come to this conclusion for a

different reason.

Regarding the defense request for expert assistance (Issue

II), the military judge did not err because the defense could

not adequately explain why the expert was “necessary” under the

test laid out by this Court in United States v. Gonzalez, 39 MJ

459, 461 (CMA 1994). The first prong of this test asks “[w]hy

the expert assistance is needed?” and the second prong asks

“[w]hat would the expert assistance accomplish for the accused?”

Id. In arguing necessity, appellant did not explain why a

knowledgeable and prepared defense counsel could not achieve the

same results (i.e., suggesting that the victims had been

influenced, coached, etc.) on cross-examination as putting an

expert witness on the stand to testify directly. Certainly,

expert testimony would have been “helpful,” as appellant pointed

out. However, helpfulness alone is not enough to demonstrate

necessity.

With respect to the Staff Judge Advocate’s recommendation

(Issue III), appellant has failed to establish error, never mind

plain error. Appellant argued on appeal that the Staff Judge United States v. Gunkle, 00-0092/AR

Advocate’s recommendation did not reflect the portion of the

specifications that the military judge dismissed when he granted

the defense motions for findings of not guilty. See RCM 917,

Manual for Courts-Martial, United States (1995 ed.). The Rules

for Courts-Martial, however, state that the “findings and

sentence adjudged by the court-martial” must be included in the

recommendation. RCM 1106(d)(3)(A) (emphasis added). In my view,

both the Staff Judge Advocate’s recommendation and the General

Court-Martial Order accurately reflect the findings and sentence

adjudged by the court-marital as required by this rule. In any

event, as explained by the majority, appellant suffered no

prejudice in this case. Accordingly, I affirm.

2