United States v. Pack

• Decision Date: 12 December 2007
• Docket Number: 07-0085
• Citation: 65 M.J. 381
• Parties: UNITED STATES, Appellee v. Daniel M. PACK Jr., Gunnery, Sergeant, U.S. Marine Corps, Appellant
• Court: United States Court of Appeals, Armed Forces Court of Appeals

65 M.J. 381

UNITED STATES, Appellee v. Daniel M. PACK Jr., Gunnery, Sergeant, U.S. Marine Corps, Appellant

No. 07-0085

United States Court of Appeals, Armed Forces

December 12, 2007

Argued October 25, 2007

Crim App. No. 200400772. Military Judges: S. M. Immel (arraignment) and P. J. Betz Jr. (trial).

For Appellant: Lieutenant Kathleen L. Kadlec, JAGC, USN (argued) Lieutenant Brian L. Mizer, JAGC, USN.

For Appellee: Captain Roger E. Mattioli, USMC (argued); Major Brian K. Keller, USMC (on brief); Commander Paul C. LeBlanc JAGC, USN.

Amicus Curiae for Appellant: Susan A. Castorina (law student) (argued); Seth M. Lahn, Esq. (supervising attorney); Emmanuel V. R. Boulukos, (law student) (on brief) -- for the Indiana Law School, Bloomington.

Amicus Curiae for Appellee: Paul H. Threatt (law student) (argued) Aviva A. Orenstein, Esq. (supervising attorney); Aravon B. McCalla (law student) (on brief) -- for the Indiana Law School, Bloomington.

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

OPINION

RYAN, Judge.

The decisional issue in this case is whether Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) so undermined the reasoning in Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990) that this Court is free to disregard Craig and hold that anything short of face-to-face confrontation at trial violates the Sixth Amendment. If so, it would inexorably follow that Rule for Courts Martial (R.C.M.) 914A and Military Rule of Evidence (M.R.E.) 611(d), which are based on the holding in Craig and permit a child witness to testify via closed-circuit television, are unconstitutional.

There is support for Appellant's argument that aspects of Crawford are difficult to reconcile with aspects of Craig. See infra, at pp. 8-11. But the Supreme Court did not overrule Craig or even mention it in Crawford. And the holding in Crawford turned on whether, and under what circumstances, testimonial hearsay, which by definition does not involve face-to-face confrontation at trial, may be admitted, consonant with the Confrontation Clause of the Sixth Amendment. Consequently, Craig continues to control the questions whether and how child witness testimony via closed-circuit television is constitutional.

I. Procedural Background

A general court-martial composed of officer and enlisted members convicted Appellant, contrary to his pleas, of six specifications of indecent acts with a child in violation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2000). The sentence adjudged by the court-martial and approved by the convening authority included a dishonorable discharge, confinement for twenty-three years, and reduction to the lowest enlisted grade. The Navy-Marine Corps Court of Criminal Appeals dismissed one specification, reassessed the sentence, and approved the adjudged sentence, but reduced confinement to twenty-two years. United States v. Pack, No. NMCCA 200400772, Id. 2006 WL 4579021, at *10 (N-M. Ct. Crim. App. Oct. 26, 2006) (unpublished).

On Appellant's petition, we granted review of the question:

[WHETHER] IN LIGHT OF CRAWFORD V. WASHINGTON, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), WAS APPELLANT DENIED HIS SIXTH AMENDMENT RIGHT TO CONFRONT HIS ACCUSER WHEN THE MILITARY JUDGE ALLOWED MP TO TESTIFY FROM A REMOTE LOCATION VIA ONE-WAY CLOSED-CIRCUIT TELEVISION. ^[1]

II. Factual Background

The charges referred against Appellant arise from his sexual abuse of his eight-year-old stepdaughter MP over a period in excess of a year. At the time of trial, MP was ten years old. Appellant's actions resulted in MP suffering psychological problems, for which she required extensive counseling. The Government petitioned the military judge to allow MP to testify from a remote location via one-way closed-circuit television pursuant to M.R.E. 611(d) and R.C.M. 914A. The defense objected to the request, arguing that it denied Appellant his right to confront his accuser.

The military judge conducted an evidentiary hearing on the Government's motion. At the hearing, the military judge heard expert testimony from MP's treating psychologist. Based on this testimony, the military judge made findings of fact and conclusions of law. The military judge recognized that the requirements of M.R.E. 611 must be read in conjunction with Craig, 497 U.S. at 836, in which the Supreme Court held the use of remote live testimony via one-way closed-circuit television permissible only where particular circumstances were found. ^[2] Based on the evidence presented, the military judge found those circumstances in this case: the need to protect the welfare of the child witness seeking to testify; traumatization of the child by the presence of the defendant, not the courtroom generally; and a more than de minimis emotional distress suffered by the child.

MP's testimony was under oath and in the presence of trial counsel and defense counsel. A television monitor was positioned in the courtroom so that Appellant, the members, the military judge, and the court reporter could hear MP and observe her demeanor. MP testified on both direct and cross-examination from the remote location without ever seeing Appellant.

III. Analysis

The Confrontation Clause of the Sixth Amendment provides, inter alia, that: " In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. The question of what law controls resolution of a claimed constitutional violation is one of law, which we review de novo. See United States v. Cabrera-Frattini, 65 M.J. 241, 245 (C.A.A.F. 2007).

A. Maryland v. Craig

In Craig, the Supreme Court upheld a Maryland statute that required: the " child witness . . . be competent to testify and . . . testify under oath; the defendant retain[] full opportunity for contemporaneous cross-examination; and the judge, jury, and defendant . . . [be] able to view (albeit by video monitor) the demeanor (and body) of the witness as he or she testifies." 497 U.S. at 851.

In the process, the Supreme Court reasoned that " [a]lthough face-to-face confrontation forms 'the core of the values furthered by the Confrontation Clause,' we have nevertheless recognized that it is not the sine qua non of the confrontation right." Id. at 847 (citations omitted). Craig went on to reject a literal reading of the Confrontation Clause in favor of a " ' preference for face-to-face confrontation at trial,' a preference that 'must occasionally give way to considerations of public policy and the necessities of the case.'" Id. at 849 (citations omitted).

Craig then considered those principles in the context of a child witness testifying remotely against a defendant in a criminal trial. Ultimately, the Supreme Court held that one-way closed-circuit testimony was admissible and consonant with the requirements of the Confrontation Clause when: (1) the court determines that it is necessary " to protect the welfare of the particular child witness" ; (2) the court finds " that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant" ; and (3) " the trial court [finds] that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis." Id. at 855-56 (citations omitted).

Appellant does not argue that the requirements under R.C.M. 914A or M.R.E. 611(d) were not met. Nor does he argue that the three requirements outlined in Craig went unsatisfied. The narrow question in this case is whether the holding in Craig allowing this type of testimony may be disregarded by this Court in light of Crawford.

B. Crawford v. Washington

Crawford considered whether and how testimonial hearsay statements made by witnesses who did not testify at trial were admissible in light of the Confrontation Clause. 541 U.S. at 68-69. The issue of face-to-face confrontation at trial was not directly implicated by Crawford, although Crawford did consider fully the historical context within which the Confrontation Clause was drafted and the evils at which it was aimed. Id. at 43-50.

Crawford did hold that testimonial hearsay statements were inadmissible absent the right to confrontation. Id. at 68-69. But it concluded that the Sixth Amendment as informed by the common law required, at least in the context of testimonial hearsay, " unavailability and a prior opportunity for cross-examination," not face-to-face confrontation at trial. Id. at 68.

C. Craig Was Not Overruled by Implication

Crawford did not purport to overrule Craig explicitly; Craig is not even cited in the opinion. In light of the dissent in Craig and the plethora of state and federal laws permitting remote testimony, including M.R.E. 611 and R.C.M. 914A, we expect that if the Supreme Court were overruling or undermining Craig, it would have said so explicitly. See, e.g., Carmell v. Texas, 529 U.S. 513, 538, 120 S.Ct. 1620, 146 L.Ed.2d 577 (2000) (stating that where the Supreme Court expressly overruled two cases in a decision, it should not be assumed that it impliedly overruled a third in the same decision).

Appellant nonetheless, argues that Crawford overruled Craig by implication because it undermined the foundations upon which it rested. Of course, overruling by implication is disfavored. See Eberhart v. United States, 546 U.S. 12, 19-20, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005) (stating that circuit courts should adhere to precedent even when subsequent decisions call earlier Supreme Court decisions into question); State Oil Co. v. Khan, 522 U.S. 3, 19, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997) (stating the same); Rodriguez de...