United States v. Cabrera-Frattini

• Decision Date: 22 June 2007
• Docket Number: 07-5001.
• Citation: 65 M.J. 241
• Parties: UNITED STATES, Appellant, v. Jose R. CABRERA-FRATTINI, Lance Corporal, U.S. Marine Corps, Appellee.
• Court: United States Court of Appeals, Armed Forces Court of Appeals

65 M.J. 241

UNITED STATES, Appellant, v. Jose R. CABRERA-FRATTINI, Lance Corporal, U.S. Marine Corps, Appellee.

Crim.App. No. 200201665.

No. 07-5001.

United States Court of Appeals, Armed Forces

June 22, 2007

Argued Feb. 5, 2007.

For Appellant: Major Brian K. Keller, USMC (argued) Commander P.C. LeBlanc, JAGC, USN, and Colonel R.F. Miller, USMC (on brief).

For Appellee: Captain S. Babu Kaza, USMC (argued).

RYAN J., delivered the opinion of the Court, in which EFFRON C.J., and BAKER, ERDMANN, and STUCKY, JJ., joined.

OPINION

RYAN Judge

In Crawford v. Washington, the Supreme Court held that "[t]estimonial statements of witnesses absent from trial" are admissible "only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine [the witness]." 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). We are asked in this case to determine whether the military judge abused his discretion by finding a thirteen-year-old witness suffering from bipolar disorder and post-traumatic stress syndrome unavailable for Confrontation Clause purposes based on the witness's medical records and the testimony of a board-certified child psychiatrist that testifying would be detrimental to the witness's mental and physical health, including possible suicide at both the time of trial and the foreseeable future. We hold that the military judge did not abuse his discretion by ruling that the witness was unavailable.

A general court-martial, composed of officer and enlisted members, convicted Appellee, contrary to his pleas, of carnal knowledge and committing an indecent act with a minor, in violation of Articles 120 and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920, 934 (2000). The sentence adjudged by the court-martial and approved by the convening authority included forfeiture of all pay and allowances, reduction to the lowest enlisted grade, confinement for three years, and a dishonorable discharge. The United States Navy-Marine Corps Court of Criminal Appeals set aside the findings and sentence, holding that the military judge erred by determining that the witness was unavailable and admitting her videotaped deposition, in violation of Appellee's Sixth Amendment right to confrontation. United States v. Cabrera-Frattini, No. NMCCA 200201665, 2006 WL 4572869, at *1, 2006 CCA LEXIS 218, at *1 (N.M.Ct.Crim.App. Aug. 2, 2006)(unpublished). Chief Judge Rolph, in dissent, concluded that the military judge had not erred. Id. at *13-24, 2006 CCA LEXIS 218, at *32-68.

Pursuant to Article 67(a)(2), UCMJ, 10 U.S.C. § 867(a)(2) (2000), the Judge Advocate General of the Navy certified to this Court this issue:

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRONEOUSLY HELD THAT THE MILITARY JUDGE ABUSED HIS DISCRETION BY FINDING THE 13-YEAR-OLD WITNESS UNAVAILABLE ON THE BASIS OF MENTAL ILLNESS OR INFIRMITY, AND THUS THAT THE MILITARY JUDGE HAD ERRONEOUSLY ADMITTED THE WITNESS'S VIDEOTAPED DEPOSITION.

A. Background

1. TO's deposition

The charges referred against Appellee arise from sexual intercourse he had with TO while another Marine anally sodomized her. TO, then a twelve-year-old girl, is unrelated to Appellee.

In October 2001, the military judge ordered the deposition of TO so that Appellee would not be denied the opportunity to cross-examine a key Government witness under oath prior to trial. ^[1]

TO was deposed on November 13, 2001. The deposition was videotaped in accordance with R.C.M. 702(g)(3). TO gave her testimony under oath and in Appellee's presence. Appellee's military counsel conducted a full cross-examination of TO without limitation. ^[2] This post-referral deposition was taken in full contemplation of the charged offenses referred to general court-martial.

2. Prosecution subpoenas and attempts to obtain TO for trial

Trial was scheduled to begin on December 10, 2001. Trial counsel subpoenaed TO and her mother to appear, issued travel orders, and made arrangements for them to fly from St. Louis, Missouri, to Parris Island, South Carolina.

3. TO's hospitalization

Shortly after her deposition, TO attempted suicide. On December 4, 2001, she was admitted to a psychiatric hospital in St. Louis, Missouri, because she was a severe danger to herself. Upon admission, TO was preoccupied with suicidal thoughts.

Dr. Linda Bock, a psychiatrist who specializes in child and adolescent psychiatry, initiated in-patient psychiatric treatment of TO's "significant psychiatric problems."

4. TO's absence from trial

On December 7, trial counsel received a faxed letter from TO's treating physician, Dr. Bock, which informed trial counsel that TO was hospitalized for in-patient psychiatric evaluation and treatment in St. Louis, Missouri, because TO was a "severe danger to herself." The letter stated TO was having "significant psychiatric problems" and was being treated with medications, but having "medication adjustment reactions." It further stated she could not attend court before the end of December 2001 and that her date of discharge from the hospital was unknown.

5. The military judge's inquiry

On December 10, 2001, Appellee's counsel filed a motion in limine to exclude TO's videotaped deposition testimony. Several hearings on the motion were held at which the Government offered documentary evidence to explain TO's hospitalization and ongoing medical condition as the reason for her unavailability for trial.

The military judge required more. Consequently, pursuant to the military judge's order, the trial counsel produced Dr. Bock for an Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2000), session on January 22, 2002. Dr. Bock appeared before the military judge to address TO's medical and psychiatric condition. Without objection, Dr. Bock established her credentials and expertise as a board-certified child psychiatrist and practicing psychiatric analyst with more than twenty years of experience. ^[3]

In addition to her curriculum vitae, Dr. Bock presented eighty-eight pages of TO's medical and psychiatric treatment records. In her sworn testimony, Dr. Bock reiterated the diagnosis she had previously documented in TO's medical records. She described bipolar disorder as a mood disorder that caused TO to suffer disturbed, erratic behavior. She explained that TO suffered from bipolar II disorder, rapid cycling and post-traumatic stress disorder, as defined by criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) (4th ed.1994).

Dr. Bock testified that TO's mental condition deteriorated significantly after TO gave her deposition. As evidence, Dr. Bock cited TO's suicide attempt. Its gravity was magnified by the fact that it was her second attempt. In her sessions with Dr. Bock, TO focused on the issue of testifying at the trial as one of the reasons that she could not go on living, believing it would be better to be dead than to testify. TO's condition required Dr. Bock to administer antipsychotic and mood-stabilizer medications to treat her disorders. Dr. Bock and other practitioners treated TO in the hospital for almost a week. Dr. Bock discharged TO on December 10, 2001.

Dr. Bock described TO's prognosis upon release from hospitalization as "guarded," noting that TO had "a serious chronic psychiatric disorder." She did not expect TO's mood to begin to show signs of stabilizing for at least six to twelve months due to her illness, as that was the time needed for the antipsychotic and mood-stabilizing drugs to have an appreciable effect. Dr. Bock expected a difficult recovery period with a possibility of re-hospitalization. Dr. Bock concluded that it would be detrimental for TO to testify as a witness based upon TO's demonstrated psychological abnormalities before and during hospitalization.

On cross-examination, Dr. Bock reiterated her medical conclusion that TO could not testify because it would aggravate TO's bipolar disorder. She testified that TO was on the verge of psychotic mania during her hospitalization. She stated that she had prescribed medications to get TO's stress levels down and that, while testifying out of the sight of the members might be less stressful, it still would detrimentally increase brain stimulation.

In response to the military judge's questions, Dr. Bock testified that TO's mental illness was ongoing and its treatment would be long-term and protracted. She told the military judge that testifying would be a major, over-stimulating event for TO, which could predictably result in a repeat suicide attempt or a repeat psychiatric hospitalization.

Dr. Bock further testified on both direct and cross-examination that TO would not be able to talk about what happened to her until TO, who was then thirteen, was eighteen to twenty-five, and perhaps not even then.

At the time of this hearing, a month and a half had passed since Dr. Bock had seen TO. Dr. Bock addressed the current accuracy of her prognosis, stating there was no other data that would be pertinent to change her view.

6. The military judge's findings of fact

Based upon Dr. Bock's testimony and the medical record evidence, the military judge found that TO had two significant psychiatric illnesses: bipolar II disorder and post-traumatic stress disorder. He found that she was being treated with Seroquel, a brain protectant and antipsychotic and Tegretol, a mood stabilizer. As a result, he found that it "would be detrimental to [TO]'s mental and physical health now and in the foreseeable future to testify at the court-martial or any hearing regarding the charges before the court...." He concluded that "any court appearance would re-traumatize [TO] and would worsen her mental and physical health to include her possible...