Opinion Analysis: A divided CAAF finds error and prejudice in the admission of a prior consistent statement, in United States v. Frost
CAAF decided the Army case of United States v. Frost, 79 M.J. 104, No. 18-0362/AR (CAAFlog case page) (link to slip op.), on July 30, 2019. Reviewing a military judge’s admission (over a defense objection) of a prior consistent statement by an alleged child victim of rape, a majority of CAAF finds error because the statement was made after the improper influence asserted by the defense. Considering that error in the context of otherwise-weak evidence of guilt, a smaller majority of the court concludes that it was not harmless. Accordingly, CAAF reverses the decision of the Army CCA and the findings and sentence, and it authorizes a rehearing.
Judge Ohlson writes for the court, joined by Chief Judge Stucky and Judge Ryan. Judge Sparks concurs in the finding of error but dissents from the finding of prejudice. Judge Maggs dissents.
Specialist (E-4) Frost was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of rape of a child. The child was Frost’s daughter – identified by the initials DF – born in 2007. Frost and DF’s mother – Ms. Moore – separated before DF was born, and they fought over custody of DF after she was born. A state court ultimately awarded custody to Ms. Moore (who lived in Georgia), with Frost allowed scheduled visits. One such visit occurred in the summer of 2013, in Texas (where Frost was stationed). Approximately one month after the visit, Ms. Moore and her boyfriend (Mr. Casey) reported to law enforcement that while sitting in the car “DF spontaneously made a statement to the effect of, ‘Daddy stuck his penis in my mouth.'” Slip op. at 2.
DF subsequently underwent a forensic interview in March 2014, in which she did not disclose any abuse by Frost. A second interview, in November 2014, also did not result in any allegation of abuse. Nevertheless, Frost was charged and an Article 32 preliminary hearing was conducted in April 2015. DF testified by telephone during the hearing but, again, did not disclose any abuse by Frost. After the hearing, Ms. Moore took DF to five sessions with a psychotherapist, Dr. Landry, in August 2015. According to Dr. Landry, DF told her that Frost “tried to put his pee-wee in my mouth.” Slip op. at 3. The following month, however, DF was interviewed by the prosecutors by telephone and she “once again stated that nothing sexual happened during the summer of 2013 with Appellant and that she did not tell her mother that anything did happen.” Slip op. at 3-4. “The court-martial proceeded nonetheless.” Slip op. at 4.
DF testified at trial in 2016 and said “that nearly three years earlier ‘my dad put his pee-pee in my mouth.’” Slip op. at 4. The defense impeached DF with her prior inconsistent statements (her earlier denials of abuse). The prosecution then called Dr. Landry, and the military judge allowed Dr. Landry to testify about DF’s September 2015 allegation of abuse on the basis that it was admissible under the medical diagnosis or treatment exception to the hearsay rule, Mil. R. Evid. 803(4). The defense objected but the Army CCA affirmed the military judge’s ruling admitting Dr. Landry’s testimony, and CAAF denied review of that issue. Slip op. at 4 n.3.
The prosecution also called Ms. Moore and Mr. Casey, both of whom testified that DF made the allegation of abuse in August 2013. The defense objected to that too, but the military judge admitted the statement (as repeated by both witnesses) as non-hearsay based on the rule for prior consistent statements, Mil. R. Evid. 801(d)(1)(B). In so doing, the military judge concluded that the defense claimed that Dr. Landry had improperly influenced DF, making DF’s statements to Ms. Moore and Mr. Casey admissible because they pre-dated Dr. Landry’s influence. The Army CCA affirmed that decision in a footnote, and CAAF granted review to determine:
Whether the military judge erred in admitting hearsay statements as prior consistent statements under Mil.R.Evid. 801(d)(1)(B)(i) where the defense theory posited the improper influence or motive preceded the allegedly consistent statements.
A majority of the court finds that the military judge was wrong because the “defense’s sole theory and line of approach . . . was that Ms. Moore, motivated by a desire to obtain sole custody of her children, exerted an improper influence on DF prior to DF’s August 24, 2013, remark [in the car].” Slip op. at 11.