Keith R. Paaluhi Gunnery Sergeant U.S. Marine Corps Convicted Sex Offender Rape And Sodomy Of A Child

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Name: Keith R, Paaluhi

Case: United States v. Paaluhi No. 99-0844 Crim. App. No. 97-0321

Date Of Appeal: March 2, 2000

Plea: Not Guilty

Charges: Rape And Sodomy Of A Child et all

Military Branch: U.S. Marine Corp

Listed In National Sex Offenders Registry? NO

Judge SULLIVAN delivered the opinion of the Court.

During August of 1996, appellant was tried by a general court-martial with officer members at Marine Corps Base Hawaii, Kaneohe Bay, Hawaii. Contrary to his pleas, he was found guilty of rape, forcible sodomy, and committing indecent acts on a child, in violation of Articles 120, 125, and 134, Uniform Code of Military Justice, 10 USC §§ 920, 925, and 934, respectively.

On August 17, 1996, he was sentenced to a dishonorable discharge, confinement for 10 years, and reduction to E-1. The convening authority approved this sentence on January 15, 1997, and the United States Navy-Marine Corps Court of Criminal Appeals affirmed. United States v. Paaluhi, 50 MJ 782 (N.M.Ct.Crim.App. 1999).

We hold that appellant’s statements to a Navy psychologist were not protected by the federal civilian psychotherapist-patient privilege. See United States v. Rodriguez, No. 99-0224, ___ MJ ___ (Sept. 25, 2000). Nevertheless, we conclude that he received ineffective assistance of counsel when his military defense counsel advised him to speak to this government psychologist who had not been officially detailed to assist the defense. 1 See United States v. Toledo, 25 MJ 270, 275-76 (CMA 1987), aff’d on reconsideration, 26 MJ 104, 105 (CMA 1988).

The record of trial in this case shows that on March 31, 1996, the victim made an entry in her journal recounting how she felt after having just had sexual relations with her father, the appellant. (Prosecution Exhibit 4) On April 3, 1996, the victim’s mother read the journal and reported this situation to Ms. Kimberly Holmes, a child sexual abuse investigator with the Hawaii Department of Human Services, Child Protective Services. (R. 115-18) Ms. Holmes contacted the Naval Criminal Investigative Service (NCIS). (R. 124, 161) NCIS Special Agent Deborah Russell arranged for an interview of the victim to take place the next day at the Child Advocacy Center, a facility that had rooms appropriate for the interview of children in a non-threatening environment. (R. 124-25, 174)

On April 4, 1996, the victim, her mother, and her younger sister traveled to the Child Advocacy Center, where they were introduced to Ms. Holmes, Agent Russell, and another NCIS special agent. (R. 127-28, 174-75) Ms. Holmes interviewed the victim in a private room, telling the victim that the interview was being watched and videotaped by Agent Russell and the other NCIS special agent, who were located behind a two-way mirror. (R. 127, 175) Ms. Holmes subsequently referred the victim to Mrs. Lynn Kux, a clinical social worker, who met with the victim approximately 10 times between May 1 and July 22, 1996. (R. 337, 354)

Appellant was placed in pretrial confinement on April 5, 1996. (Charge Sheet; R. 27) Captain (Capt) K was detailed as defense counsel. (R. 3, 25, 392, 398) During pretrial preparation of appellant’s case, appellant’s defense counsel contacted Lieutenant (Lt) Suzanne Hill, a Navy Medical Service Corps officer and clinical psychologist, who was assigned to a local military medical clinic. (R. 369, 399, 421, 424) Capt K testified that, at the time he contacted Lt Hill, he anticipated presenting only a case in sentencing and was looking for an expert to provide testimony favorable to appellant. (R. 399) Without requesting that the convening authority or military judge assign Lt Hill to assist in appellant’s defense, defense counsel convinced Lt Hill to meet with and evaluate appellant and he advised appellant to cooperate with Lt Hill. (R. 293-95, 399-400)

On May 31, 1996, Lt Hill faxed a document entitled "Initial Personal History Questionnaire" to appellant in the brig. (Appellate Exhibit 15; R. 386) Included with the questionnaire was a "Statement of Understanding Regarding Limits of Confidentiality within Military Mental Health Departments," which indicated that disclosures related to "suspected child abuse" must be turned over to "medical, legal or other authorities." (Appellate Exhibit 15; R. 369 ff., 388, 393 ff.) Lt Hill ensured that appellant had read and signed the Statement of Understanding before she commenced her initial interview of appellant on June 5, 1996. (R. 369 ff., 388, 393 ff.)

During their meetings on June 5 and 26 and on July 5 and 30, 1996, appellant told Lt Hill that he had been having sex with the victim for the last 5 years, but did not give specific details. (R. 372, 425) The military judge denied appellant’s pretrial motion to suppress all of his statements to Lt Hill. (R. 407) Lt Hill testified at appellant’s court-martial that appellant told her that he had been having sex with the victim for the last 5 years. (R. 425)