Petition for Writ of Certiorari — Hill-Dunning v. United States

Serre ry

FILRBD

SEP 29 1988

JOSEPH F. SPANOL, JR,

CLERK

No.

In the Supreme Court of the Gnited States

OCTOBER TERM, 1988

BRENDA J. HILL-DUNNING, PETITIONER

Vv.

UNITED STATES, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

LYNNE H. WETZELL

Major, Office of The Judge

Advocate General

United States Air Force

HQ USAF/JAJD

Bldg 5683

Bolling AFB, DC 20332-6128

(202) 767-1562

Counsel of Record

RICHARD F. O’HAIR

Lt Colonel, Office of The Judge

Advocate General

United States Air Force

September 1988 Counsel for Petitioner

aaiueateeeiatanamnall

QUESTION PRESENTED

WHETHER THE PETITIONER WAS DENIED DUE

PROCESS OF LAW AS REQUIRED BY THE FIFTH

AMENDMENT TO THE UNITED STATES CON-

STITUTION WHEN THE COURT OF MILITARY AP-

PEALS HELD THE ERRONEOUS EXCLUSION OF

THE DEFENSE EXPERT WITNESS’ OPINION

TESTIMONY TO BE HARMLESS ERROR?

(I)

TABLE OF CONTENTS

Page

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Constitutional and Statutory Provisions ................... 2

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TABLE OF AUTHORITIES

Cases:

Brown v. United States, 441 U.S. 223 (1973) ............ 5

Chapman v. California, 386 U.S. 18 (1967) ............ 5

Delaware v. Van Arsdell, 475 U.S. 673 (1986) .......... 5, 6

Milton v. Wainwright, 407 U.S. 371 (1972) ............. 6

Rock v. Arkansas, __. U.S. ___., 107 S.C. 2704

RSENS SRS SST RS > RC 4

Rose v. Clark, 478 U.S. S70 (1986) .. 02. ccc cc ccccees 5

Schneble v. Florida, 405 U.S. 427 (1972) ............... 6

United States v. Barnes, 8 M.J. 115 (C.M.A. 1979) ...... 5

United States v. Dougherty, 473 F.2d 1113 (D.C. Cir.

PS ee Li a ae ds eyed ees 5 5

United States v. Hasting, 461 U.S. 499 (1983) ........... 5

United States v. Hill-Dunning, ACM 25508, slip. op.

(A.F.C.M.R. December 2, 1986) ................... l

United States v. Hill-Dunning, 26 M.J. 260 (C.M.A.

Es 9&0 4c 0:0 ia eM ce ceeebwe us nsece< passim

United States v. Kotteakos, 328 U.S. 750 (1976) ......... 6

United States v. Valenzuela-Bernal, 458 U.S. 858

TCLs ate add a PaaKk awh ewees babe bes das 5

Washington v. Texas, 388 U.S. 14 (1967) .............. 4

Constitutions and Statutes:

U.S. Constitution Amendment V ..................... 2

U.S. Constitution Amendment VI .................... 4

(IIT)

IV

Statutes — Continued: Page

OO ULC, DD oc a cccccccncsccncstensh cvan 2, 4, 5

10 U.S.C. § 867(h) (Supp. III, 1985) .................. ]

y is Foy S| RP TTTPTVTPTEET Tit Te ee 5

28 U.S.C. § 1259(3) (Supp. III, 1985) ................. 1

Uniform Code of Military Justice:

Article 59(a), 10 U.S.C. § 859(a) (1982) ................ 2, 4, 5

Miscellaneous:

Military Rules of Evidence 702-705 ................4..

Fed. R. Crim. P. 52(a) ......- +. - eee eee e cere eee eees 5

S. Saltzburg, L. Schinasi & D. Schlueter, Military Rules

of Evidence Manual (2d ed. 1986) .............+-5+. 6

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1988

No.

BRENDA J. HILL-DUNNING, PETITIONER

Vv.

UNITED STATES, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

Brenda J. Hill-Dunning respectfully prays that a Writ of

Certiorari issue to review the judgment of the United

States Court of Military Appeals entered in her case on

August 1, 1988.

OPINIONS BELOW

The opinion of the United States Court of Military Ap-

peals is reported at 26 M.J. 260 (C.M.A. 1988) (Appendix

A). An unreported decision of the Air Force Court of

Military Review was rendered on December 2, 1986 (Ap-

pendix B).

JURISDICTION

The jurisdiction of this Court is invoked under 10

U.S.C. § 867(h) (Supp. III 1985) and 28 U.S.C. § 1259(3)

(Supp. III 1985}. The judgment of the Court of Military

Appeals was entered on August 1, 1988.

(1)

2

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The Fifth Amendment provides:

No person shall be . . . deprived of life, liberty, or

property, without due process of law...

Article 59(a) of the Uniform Code of Military Justice,

10 U.S.C. § 859(a) (1982) provides:

(a) A finding or sentence of a court-martial may not

be held incorrect on the ground of any error of law

unless the error materially prejudices the substantial

rights of the accused.

STATEMENT OF THE CASE

On March 21 and May 12-14, 1986, petitioner was con-

victed by a general court-martial at Columbus Air Force

Base, Mississippi, on charges of making false statements

and theft of $9,936.00 from the United States. She entered

pleas of not guilty, but was convicted on all charges and

sentenced to confinement for two years, a fine of

$10,000.00, a dishonorable discharge, and reduction to the

rank of airman basic.

Petitioner married Wilbert Bonner in 1973. After a

stressful marriage marked with numerous separations,

petitioner divorced Mr. Bonner on January 12, 1979. At

trial, the prosecution presented evidence showing that

petitioner continued to collect her housing allowance at

the “with dependent” rate from February 1, 1983, until |

October 1, 1985, as a result of her representations to |

military officials that she was still married.' Petitioner

' The Department of Defense Pay Manual addresses a military

member’s entitlement to Basic Allowance for Quarters (BAQ). A

single enlisted military member, without, dependents, is not entitled to

this allowance except when authorized by the commander. Even if

terrence iii

3

conceded that she was not married at the time of the of-

fenses, but presented a defense of mistake of fact, arguing

that she had been suffering from a mental condition

whereby she unconsciously repressed the fact that she had

divorced Mr. Bonner. To that end, defense offered the ex-

pert testimony of Dr. Carmen Federowich, a psychiatrist.

Due to his “lingering doubts” as to the admissibility of

Dr. Federowich’s testimony, the military judge held an Ar-

ticle 39(a) session, a hearing held outside the presence of

the jury members, to determine what her testimony would

be. Dr. Federowich was prepared to testify that at the time

of the offenses, petitioner was suffering from a histricnic

personality disorder and engaged in a coping mechanism

whereby she unconsciously denied and repressed certain

stressful matters. Further, Dr. Federowich was of the ex-

pert opinion that as a result of this personality disorder,

petitioner had unconsciously repressed the fact of her

divorce because it was important for her to believe she was

still married.

The military judge ruled that Dr. Federowich could

testify about petitioner’s personality disorder and about

the coping mechanisms of repression and denial in general

terms. He refused, however, to allow her to express her

opinion as to whether or not the petitioner actually be-

lieved she was married or divorced at a certain period of

time or to express any opinion in that same regard with

respect to the repression or denial.

On appeal before the Air Force Court of Military

Review, petitioner contended that the military judge erred

by his limitation of the defense expert witness’ testimony.

entitled to draw BAQ, the single-rate allowance is significantly less

than the with-dependent rate. To be entitled to the with-dependent

rate BAQ, the enlisted military member must either be married, or

have a dependent.

4

The Court of Military Review concluded there was “no

clear abuse of judicial discretion” and affirmed the convic-

tion and sentence.

The United States Court of Military Appeals granted

discretionary review of petitioner’s case. Applying

Military Rules of Evidence 702-705 to the facts of the case,

the court concluded that Dr. Federowich’s excluded opin-

ion testimony was proper and admissible, and the trial

judge, therefore, erred by denying its admission.” 26 M.J.

260, at 263. However, citing Article 59(a), Uniform Code

of Military Code of Military Justice, 10 U.S.C. § 859(a),

the court found the error harmless. In reaching this con-

clusion, they considered that Dr. Federowich was allowed

to testify that petitioner was suffering from a histrionic

personality disorder, and explained the mechanics of

denial and repression. Further, they noted that petitioner

herself testified and the court had an opportunity to judge

whether or not she was believable. Thus, the court con-

cluded that the trial judge’s improper ruling did not

hamper the “full development of the defense theory of

mistake of fact.” 26 M.J. 260, at 263. |

REASONS FOR GRANTING THE WRIT |

Every criminal defendant has the right to a fair trial in

accordance with the principles of due process guaranteed

by the Federal Constitution. Essential to this right of due

process is an accused’s Sixth Amendment right to “call

witnesses in his favor.” Rock v. Arkansas, 475 U.S. 673,

(1987). See also Washington vy. Texas, 388 U.S. 14 (1967).

2 Military Rules of Evidence 702 through 705 concern testimony by

expert witnesses. Specifically, they are Rule 702, Testimony by Ex-

perts; Rule 703, Bases of Opinion Testimony by Experts; Rule 704,

Opinion on Ultimate Issue, and Rule 705, Disclosure of Facts or Data

Underlying Expert Opinion.

ET TO

5

Logically included in this right is an accused’s right to pre-

sent his or her own witnesses, and the opportunity to

develop his or her defense to its maximum competence.

United States v. Valenzuela-Bernal, 458 U.S. 858 (1982);

see United States v. Dougterty, 473 F.2d 113, (D.C. Cir.

1972); United States v. Barnes, 8 M.J. 115 (C.M.A. 1979).

This is not to say that a defendant is guaranteed an

error-free trial. United States v. Hasting, 461 U.S. 499,

508-09 (1983); see also Delaware v. Van Arsdell, 475 U.S.

673 (1986); Brown v. United States, 411 U.S. 223, 231-32

(1968). Recognizing this precept, federal and military

harmless error statutes have been enacted. 10 U.S.C.

§ 859(a) (1982); 28 U.S.C. § 2111 (1982); Article 59(a),

U.C.M.J.; see also, Fed. R. Crim. P. 52(a). Essentially,

these statutes preclude reversal of convictions by a review-

ing court when the “errors or defects have little, if any,

likelihood of having changed the results of trial.” Chap-

man v. California, 386 U.S. 18, 22 (1967); see Rose v.

Clark, 478 U.S. 570 (1986). On the other hand, these

harmless error rules emphasize an intention not to treat as

harmless those constitutional errors that “affect substan-

tial rights” of a party. Chapman v. California, suprv, at

23.

When the error is of constitutional dimension, as in the

present case, the standard of review of harmless error is

necessarily strict. In Chapman, supra, this Court rejected

the argument that all constitutional errors, regardiess of

the facts and circumstances, must automatically be

deemed harmful. Nevertheless, the Court stated that when

federal constitutional error is committed, reversal is re-

quired unless the reviewing court can “declare a belief that

[the error] was harmless beyond a reasonable doubt.” Jd.

at 24. This beyond a reasonable doubt test requires the

reviewing court to find there was no possibility that the

error affected the decision of the trial court. See United

6

States v. Kotteakos, 328 U.S. 750 (1976); Schneble v.

Florida, 405 U.S. 427 (1972); Milton v. Wainwright, 407

U.S. 371 (1972).

Since Chapman, this Court has gradually broadened the

use of the harmless error analysis in the constitutional con-

text. Concomitantly, criteria have been provided for ap-

plying the harmless error rule. In Delaware v. Van Arsdell,

supra, three factors were suggested: (1) the importance of

the witness’ testimony in the defendant’s case, (2) whether

the testimony was cumulative, and (3) the overall strength

of the case. In their editorial comment in the Military

Rules of Evidence Manual, the authors suggest additional

questions to consider in determining the harmless error

issue. S. Saltzburg, L. Schinasi, and D. Schlueter, Military

Rules of Evidence Manual (2d ed. 1986). These include

whether the error went to the heart of the defense’s case

and whether the exclusion of the defense’s evidence made

the government’s evidence appear stronger than it other-

wise might have. /d. at 19.

The petitioner contends the Court of Military Appeals

denied her due process of law and erred to her substantial

prejudice by concluding that the military judge’s er-

roneous ruling did not require reversal of petitioner’s con-

viction. It is noteworthy that no standard of analysis was

articulated in support of that court’s conclusion that the

error was harmless. The error complained of herein is of

constitutional dimension, as it denied petitioner her op-

portunity to develop her defense to its maximum com-

petence. Applying the relevant test, can it be said that,

beyond a reasonable doubt, the jury would have found

petitioner guilty even if Dr. Federowich had been allowed

to give her excluded opinion testimony? This simply can-

not be concluded to such a degree of certainty.

The government’s case consisted primarily of the fact

that petitioner presented herself as married and subse-

J

quently received the married rate housing allowance dur-

ing the charged period. Against this, petitioner testified

that during the relevant period she honestly believed she

was still married and she truly had not remembered divor-

cing her husband in early 1979. Her testimony, standing

alone, to the average layperson untrained in psychology,

appears incredulous at best. Therefore, the defense needed

Dr. Federowich’s excluded opinion testimony to serve as a

linchpin, connecting the diagnosed personality disorder to

petitioner’s actual state of mind.

Only an expert could make this connection—that the

disorder was so severe that it was reasonable that peti-

tioner in fact unconsciously repressed the memory of her

divorce at the times pertinent to the alleged offenses. Cer-

tainly this opinion testimony which the Court of Appeals

determined would have been “helpful to the finder of fact”

could very likely have resulted in the court members find-

ing appellant was under an honest mistake of fact and thus

not guilty of the offenses. This erroneously omitted

testimony pulled together an otherwise unbelievable story

of “I forgot” into a fully developed, credible defense of

mistake of fact.

This denial of petitioner’s opportunity to present her

defense, to its maximum competence, was to her substan-

tial prejudice. Therefore, the error cannot be deemed to be

harmless.

CONCLUSION

The influence of the erroneously excluded expert opin-

ion testimony on the finder of fact in this case is clear. The

substantial right of the petitioner to perfect and develop

her defense to its maximum potential was impaired. Under

the facts, it is impossible to say, beyond a reasonable

doubt, that even with the excluded testimony the jury

would have found petitioner guilty. Accordingly, the

8

petitioner contends the Court of Appeals’ conclusion of

harmless error was erroneous, and the case warrants fur-

ther examination by this court. Therefore, the Petition for

Writ of Certiorari should be granted. |

Respectfully submitted,

LYNNE H. WETZELL

Major, Office of The Judge

Advocate General

United States Air Force

HQ USAF/JAJD

Bldg 5683

Bolling AFB, DC 20332-6128

(202) 767-1562

Counsel of Record

RICHARD F. O’HAIR

Lt Colonel, Office of The Judge

Advocate General

United States Air Force

September 1988 Counsel for Petitioner

APPENDICES

UNITED STATES COURT OF MILITARY APPEALS

No. 57,019

ACM 25508

UNITED STATES, APPELLEE

V.

BRENDA J. HILL-DUNNING,

STAFF SERGEANT U.S. AIR FORCE, APPELLANT

Aug. 1, 1988

For Appellant: Captain Lynne H. Wetzell (argued);

Colonel Leo L. Sergi (on brief); Captain Charles L. Wille.

For Appellee: Major Carole W. Hanson (argued); Col-

onel Joe R. Lamport, Lieutenant Colonel Robert E.

Giovagnoni (on brief); Captain Jeffrey H. Curtis.

OPINION OF THE COURT

Cox, Judge:

Appellant was tried by a general court-martial made up

of officer members at Columbus Air Force Base,

Mississippi. She was charged with two specifications of

signing a false official statement and one specification of

larceny, in violation of Articles 107 and 121, Uniform

Code of Military Justice, 10 U.S.C. §§ 907 and 921,

respectively. Contrary to her pleas, she was found guilty

of all charges and specifications, and was sentenced to a

dishonorable discharge, confinement for 2 years, total

forfeitures, a fine of $10,000.00, and reduction to the

grade of airman basic. The convening authority approved

(la)

2a

the sentence as adjudged, and the Court of Military Re-

view affirmed in an unpublished opinion. Appellant nows

asks us to determine whether “the military judge abuse[d]

his discretion by refusing to permit a defense expert

witness to testify as to the ultimate issue in the case.”

Subsequent to her divorce, appellant applied for and

received basic housing allowances at the “with dependent”

rate, as if she were still married. At trial, the defense con-

ceded that appellant was not married at the time of the of-

fenses, but presented a “mistake of fact”! defense to the

charges. Specifically, the defense argued that appellant

suffered from a mental condition whereby she un-

consciously suppressed or denied the fact that she was no

longer married. To that end, defense counsel offered the

testimony of an expert witness, Dr. Carmen Federowich, a

psychiatrist who had examined appellant concerning this

court-martial.

At an Article 39(a) session? held prior to her testimony,

Dr. Federowich related to the court her professional

qualifications and her post-examination diagnosis of ap-

pellant. Dr. Federowich was prepared to testify that, at the

time of the offenses, appellant was engaging in a coping

mechanism which caused confused thinking during times

of stress. Further, appellant’s mental condition caused un-

conscious denial and repression of certain matters, and she

was using these mechanisms to reject or sublimate the fact

of her divorce because it was important for her to believe

she was still married.

The military judge questioned Dr. Federowich about the

bases for her conclusions? and ruled that she could testify

' See para. 5-11, DA Pam. 27-9, “Military Judges’ Benchbook”

(C. 1) (Feb. 15, 1985).

2? Uniform Code of Military Justice, 10 U.S.C. § 839(a).

3 See Appendix.

=—

3a

about the concept of repression and denial in general

terms. He refused, however,

to allow the witness to express her opinion as to

whether or not the accused actually knew whether she

was married or divorced at a certain period of time or

to express any opinion in that same regard with

respect to the repression or denial.

(Emphasis added.) It is this limitation on the expert’s

testimony that is the subject of this appeal.

It is apparent from this case and others we have seen

recently that Mil.R.Evid. 704,‘ the so-called “ultimate

issue” rule, is causing some uncertainty in its application.

Cf. United States v. Arruza, 26 M.J. 234 (C.M.A. 1988);

United States v. White, 25 M.J. 50 (C.M.A. 1987); United

States v. Petersen, 24 M.J. 283 (C.M.A. 1987); United

States v. Cameron, 21 M.J. 59 (C.M.A. 1985). It is,

therefore, appropriate to revisit the rule and attempt to

bring some order into its application.

First, let’s look at Mil.R.Evid. 704 as it is set out in the

Manual for Courts-Martial, United States, 1984.

Rule 704. Opinion on ultimate issue

Testimony in the form of an opinion or inference

otherwise admissible is not objectionable because it

embraces an ultimate issue to be decided by the trier

of fact.

The rule is simply stated. It’s legislative history indicates

that it was adopted to facilitate the basic approach to

opinion evidence, whether from lay witnesses or experts. It

is not, itself, a rule of inclusion. It was designed to remove

bars to admission of opinions when such action would be

“helpful to the trier of fact. In order to render this ap-

4 Manual for Courts-Martial, United States, 1984.

4a

proach fully effective and to allay any doubt on the sub-

ject, the so-called ‘ultimate issue’ rule [which prevailed

under common law rules of evidence] is specifically

abolished by the instant rule.” Notes of Advisory Commit-

tee on Proposed Rules, 28 U.S.C.A., Federal Rules of

Evidence 114. See also S. Saltzburg & K. Redden, Federal

Rules of Evidence Manual 698 (4th ed. 1986).

However,

[t]he abolition of the ultimate issue rule does not

lower the bars so as to admit all opinions. Under

Rules 701 and 702, opinions must be helpful to the

trier of fact, and Rule 403 provides for exclusion of

evidence which wastes time. These provisions afford

ample assurances against the admission of opinions

which would merely tell the jury what result to reach,

somewhat in the manner of the oath-helpers of an

earlier day.

J. Weinstein & M. Berger, 3 Weinstein’s Evidence 704-4

(1987), citing McCormick, Evidence § 12 (1954). Cf.

United States v. Gipson, 24 M.J. 246, 251 (C.M.A. 1987).

In summary, while the rule clearly permits “ultimate-

issue” opinions from either lay or expert witnesses, it does

not open the door to any and all opinions. The following

analytical model might prove helpful to the bench and bar

when confronted with “ultimate-issue” testimony:

a. Go back to Mil.R.Evid. 402, the basic rule for ad-

missibility, and answer the following questions:

(1) What is the legal relevance of the evidence?

(2) What fact in controversy is being made more or less

probable? and,

(3) Will the opinion be helpful to the determination of

that fact? Mil.R.Evid. 702. See United States v. Downing,

753 F.2d 1224, 1235 (3d Cir. 1985); United States v.

i ly el ra tae aon ate

eee

Sa

Gipson, supra at 251. Confine the expert to his or her

discipline.

(4) Is there any other rule of evidence that makes the

opinion inadmissible?

b. Weigh admissibility of the evidence under

Mil.R.Evid. 403. If the proffered opinion satisfies these

tests, it is admissible.

We have consistently held that the opinions of one

witness concerning the credibility or believability of

another witness are inadmissible. We do not permit

witnesses to pit themselves against one another. United

States v. Arruza, United States v. White, United States v.

Petersen, and United States v. Cameron, all supra.

Mil.R.Evid. 704 was not designed to bring in the “oath-

helpers” referred to by McCormick, supra. Mil.R.Evid.

608 enumerates the method of attacking or bolstering the

credibility of witnesses.

The problem seems to be in drawing a distinction be-

tween the expert who has an opinion based upon a belief in

the truthfulness of what another person has told him and

the expert whose opinion is that the other person is

truthful. This, however, is a distinction which can and

must be drawn and recognized. Thus, the psychiatrist who

comes into court is perfectly competent to testify as to the

diagnosis and indeed may testify that the diagnosis is

based upon the assumption that what the client has said is

the truth. See Mil.R.Evid. 705. Yet, that same witness may

not testify that it is his opinion that the client is truthful

absent appropriate foundation. See United States v. Gip-

son, supra. This latter testimony is not rendered inadmissi-

ble because it embraces the “ultimate issue,” but simply

because it is not relevant and helpful under the rules. It

may be very helpful for factfinders to understand the ex-

pert’s opinion regarding the mental condition of a witness,

6a

the symptoms of injury or disease, and the expert’s

diagnosis. Indeed, it may well be relevant for the fact-

finders to know that the expert must necessarily believe the

patient in order to formulate the diagnosis; but that does

not qualify the expert to express outright the opinion that

the patient indeed is “truthful.” See generally United

States v. Tolppa, 25 M.J. 352, 354-55 (C.M.A. 1987);

United States v. Azure, 801 F.2d 336, 339-41 (8th Cir.

1986). See also Ellis v. Jacob, 26 M.J. 90 (C.M.A. 1988).

Thus, it is not relevant or helpful for the expert to express

an opinion about whether the jury should believe the

witness.

In this same vein, our Gipson decision should not be

construed as permitting a polygrapher to opine that he

believes or disbelieves a witness. “At best, the expert can

opine whether the examinee was being truthful or decep-

tive in making a particular assertion at the time of the

polygraph exam.” Id. at 252-53. What the rules of

evidence are trying to accomplish is to posture the expert

testimony so that the factfinders can employ this expertise

as a tool to evaluate the total evidence before them. The

rules strive to create an environment where rational fact-

finders can have as much information available as is

reasonably necessary to aid them in making an informed

and intelligent decision.

Applying Mil.R.Evid. 702-705 to the facts of this case,

we conclude that the military judge was too broad in his

application of the rules to the testimony of Dr.

Federowich. First, it is true that Dr. Federowich was being

asked to express her opinion on the “ultimate issue,” 7

did Sergeant Hill-Dunning unconsciously repress the fact

that she was divorced? Mil.R.Evid. 704, however does not

preclude this question if the expert is competent to express

such an opinion. Also, the fact that Dr. Federowich’s

opinion was based upon her belief in what her patient was

7a

telling her is not of moment. Indeed, in order for any ex-

pert to form an opinion, it must be predicated upon some

assumption of the truth of underlying facts. As we read

the testimony, the military judge would not permit the

doctor to express her final diagnosis because it was based

on the fact that she believed what appellant had told her

during psychiatric counseling sessions. That simply is not

the test.

The military judge was correct in ruling that Dr.

Federowich could not testify that, in her opinion, ap-

pellant was being truthful. However, the doctor could

have testified that her expert opinon was based upon her

assumption that appellant was being truthful. Further, she

could have opined that appellant’s claim was consistent

with her mental/emotional make-up. The relevant

evidence here — the evidence that is “helpful” to the finders

of fact —is the expert’s opinion about the dynamics of ap-

pellant’s mental condition at the times pertinent to the

alleged offenses. The fact that the doctor believed ap-

pellant may have been incidental to her expert opinion

and, indeed, the basis of her opinion. However, the aim of

her testimony was to inform the factfinders about a men-

tal condition that causes unconscious “denial” and “repres-

sion” of certain matters. Put into its proper perspective,

the question of appellant’s credibility is left with the

finders of fact where it appropriately belongs.

We do not find, however, that the military judge’s rul-

ing requires reversal of appellant’s conviction. Art. 59a),

UCM], 10 U.S.C. § 859(a). Dr. Federowich was a well-

qualified expert; she ably provided the court-martial with

information concerning appellant’s mental condition; and

she clearly explained the mechanisms of “denial” and

“repression.” She further delineated not only her

diagnosis, but also appellant’s prior history of

psychological problems. Thus, Dr. Federowich made a

Ne

8a

link between appellant’s histrionic personality disorder

and the unconscious mechanisms of “denial” and “repres-

sion.”

These opinions could only have been reached after mak-

ing a judgment about appellant’s credibility: that is to

say -- appellant was telling the truth, as far as the witness

was concerned.

Appellant testified at trial and the court members had

the opportunity to judge for themselves whether she was

believabie. She demonstrated, through her own testimony

and that given by other witnesses, that her behavior pat-

terns were consistent with those of a married woman. Dr.

Federowich was able to link these patterns to her theory

that appellant’s behavior was caused by “denial” and |

“repression” of knowledge of real facts and situations that

caused her to suffer undue stress or emotional pain. Thus,

we conclude that the military judge’s ruling did not

hamper full development of the defense theory of mistake

of fact. Unfortunately for appellant, the Government of-

fered convincing evidence to the contrary, and the defense

was rejected by the court members. We find no reason to

disturb that verdict on appeal.

We hold that the military judge’s refusal to permit the

defense expert witness to testify as to the ultimate issue did

not constitute reversible error.

The decision of the United States Air Force Court of

Military Review is affirmed.

Chief Judge EVERETT and Judge SULLIVAN concur.

APPENDIX

Questions by Military Judge:

Q: Dr. Federowich, we have a concept in the law

called intentional ignorance or deliberate ig-

norance. Are you familiar with that?

A: No.

9a

Q: Basically that refers to what happens when

someone had knowledge of a certain fact which,

if it was known that they knew that, might draw

some adverse legal consequences to them. In this

case, do you know what the charges are against

Sergeant Hill-Dunning in this case?

Yes.

What are they?

That she intentionally intended to defraud the

Government by claiming she was married when

she was in fact divorced to, apparently, get some

extra money.

Q: Well, you can appreciate then, that the job of

this jury is going to be to determine, as I’m see-

ing it at this point, whether Sergeant Hill-

Dunning was intentionally ignorant of the fact

that she vas divorced, which would be a con-

scious process, as I understand it, or did she un-

consciously repress this knowledge. Now, as a

psychiatrist, how would you determine it? How

could you distinguish a person who was

deliberately ignorant from one who was un-

consciously repressing things?

A: From the interviews and my knowledge of the

type of illness that she has, a review of the

records, and her demeanor. I could give you an

: opinion on it.

: Q: How would a psychiatrist go about doing that?

: You said you gave a MMPI. Is there a test that a

psychiatrist can give to distinguish deliberate ig-

norance from repression?

A: There is no specific test. There’s no test as to

detect when someone is lying or not. You have to

just form an opinion from all the information

that you have.

POP

QO 2

ee

QPOer

10a

Well, I take it then, in order to come to the con-

clusion that Sergeant Hill-Dunning was un-

consciously repressing this information, you

have to make an assessment of her credibility. Is

that correct?

Yes.

So you have to be of the opinion that she’s telling

the truth to you when she relates this informa-

tion to you?

Yes, Sir.

Would you agree that psychiatrists are generally

no better qualifed than a layman who’s ex-

perienced in the ways of the world in determin-

ing whether someone is being truthful or not?

Well, psychiatrists are more aware, I think, of

mental illnesses and how these impair how a per-

son deals with life.

Yes ma’am, I understand that; but are you say-

ing that a psychiatrist is better qualified to deter-

mine if someone is lying or telling the truth than

a layman who’s experienced in the ways of the

world?

No, I’m not.

You wouldn’t say that?

(Negative response.)

If I understand you correctly, then, Doctor, your

diagnosis of unconscious repression is solely

related to your belief that the Accused told you

the truth?

Well, it’s based, like I said, on my records, my

expertise in psychiatric illness, and the type of

disorder that she has.

If I’m understanding you correctly, Doctor, then

you’re saying that a psychiatrist is no better

lla

qualified to distinguish intentional ignorance

‘ from unconscious repression than a layman?

/ A: I believe I can give you an opinion, an expert

. opinion, as to whether I feel she’s using coping

mechanisms of repression and denial.

Q: And that would be directly related to your

assessment as to whether or not she’s being

truthful?

(Affirmative response.)

In this case we’ve had evidence introduced that

for a number of years, Sergeant Hill-Dunning

filed income tax returns indicating that she was

either single or head of household. For most of

those years . . . she received an income tax re-

fund. Now, can you explain how that is consis-

tent with your opinion that she was unconscious-

ly repressing this divorce? In other words, what I

don’t understand is how someone could un-

consciously repress such things, but when it

comes tax time suddenly remember that they

were divorced.

A: Well, she knew she wasn’t living with him; she

was separated. She could have considered herself

single in that regard. I mean, that could be her

way of thinking. I didn’t ask her that question.

* * * * oe *

QP

So, it is safe to say that you’re speculating, then,

as to how she might come to that conclusion?

: Right.

Q: Wouldn’t the fact that someone files tax returns,

though, indicating that they’re single or head of

household indicate a situation whereby or argue

heavily against a diagnosis of unconscious

repression of this information?

Qe

Qe

Qs

Qe OP

12a

It could.

Now, Doctor, I’m obviously not an expert in

these areas, but the very words “repression or

denial” connote to me that one must be con-

scious of this threatening event in order to

repress it. Is that right or wrong?

(No response.)

At some point must a person be aware of the

threat to their psyche in order to repress it?

Once that mechanism occurs, it’s unconscious.

It’s out of the person’s awareness. There’s a dif-

ference between somebody who’s saying, “I’m

lying about this and I’m just saying it because it’s

convenient to me or what yer,” and someone

who actually has a belief .nat this is not a fact.

This is the case of a person who uses repression

and denial. It’s not a deliberate thing.

* * * * * *

No, I understand that; but before that sub-

conscious Or unconscious process takes over,

there must be conscious fear of this situation. Is

that correct?

Yes. At one point they’re conscious of it.

So, in this case, . . . if she was using denial or

repression, then at some point she must have

been aware of the fact that she was divorced

before she could repress it or deny it. Is that

true?

Yes, that’s true.

Doctor, are you a member of the American

Psychiatric Association?

Yes.

Is it true that it’s the position of the APA that

psychiatrists are no better able to determine

13a

whether an individual is lying than the average

layman?

A: Yes, that’s true.

Q: Do you agree with that position or do you

disagree with the APA position?

A: No, I agree with the APA.

l4a

UNITED STATES AIR FORCE COURT OF

MILITARY REVIEW

ACM 25508

UNITED STATES

V.

STAFF SERGEANT BRENDA J. HILL-DUNNING,

FR 422-66-4187, UNITED STATES AIR FORCE

2 DEC 1986

Sentence adjudged 14 May 1986 by GCM convened at Co-

lumbus Air Force Base, Mississippi. Military Judge: Ver-

non J. King, Jr.

Approved sentence: Dishonorable discharge, confinement

for two (2) years, forfeiture of all pay and allowances, fine

of ten thousand dollars ($10,000.00) and reduction to air-

man basic.

Appellate Counsel for the Appellant: Colonel Leo L. Sergi

and Captain Charles L. Wille. Appellate Counsel for the

United States: Colonel Kenneth R. Rengert, Colonel Joe

R. Lamport, Lieutenant Colonel Robert E. Giovagnoni

and Captain Anthony P. Dattilo.

Before

HODGSON, FORAY and HOLTE

Appellate Military Judges

15a

DECISION

Hopason, Chief Judge:

On 14 June 1973, the appellant married Wilbert Bonner,

but their union was difficult and stressful. After repeated

separations and reconciliations, she divorced him on 12

January 1979. However, she continued to accept her hous-

ing allowance at the married rate. This resulted in a con-

viction of two allegations of making a false statement with

intent to deceive and larceny of almost $10,000 dollars.

While the defense at trial conceded that the appellant

divorced her husband in early 1979, they urged that her

emotional condition, diagnosed as a “histrionic personali-

ty disorder and adjustment reaction with depressed

mood”, was such that she honestly believed that she was

still married to her first husband during the period she

received the BAQ overpayments. Doctor Carmen

Federowich, a clinical psychiatrist, testified that the ap-

pellant’s first marriage was very important to her and that

denial and repression are coping mechanisms in which a

person puts out of his or her conscious mind facts or dif-

ficulties —it is an unconscious mechanism. Trial defense

counsel argued that since the appellant had “blocked out”

the fact of her divorce, she was entitled to a not guilty ver-

dict on all counts. The trial judge then instructed the

members on mistake of fact as a complete defense.

The issue before us is the trial judge’s refusal to allow

Doctor Federowich to state, “whether the [appellant] ac-

tually believed she was married at the time of the offenses

or whether she had unconsciously repressed or denied such

knowledge.” The judge considered Doctor Federowich’s

testimony to be an opinion on the ultimate issue! as to the

' Mil. R. Evid. 704. OPINION OF ULTIMATE ISSUE

Testimony [in] the form of an opinion or inference otherwise admissi-

ble is not objectionable because it embraces an ultimate issue to be

decided under the trier of fact.

16a

appellant’s guilt or innocence. Conversely, appellate

defense counsel contend that Federowich’s opinion would

assist the trier of fact, and is permitted under Mil. R. Evid.

702, 703 and 704.

Mil. R. Evid. 704 eliminated the prior restriction against

admitting opinion testimony on the ultimate issue of the

case. However, the Rule does not permit a witness to

testify as to his or her opinion as to the guilt or innocence

of the accused. See S. Saltzburg, L. Schinasi and D.

Schlueter, Military Rules of Evidence, 2d ed., p. 599.

Rather, the Rule allows testimony involving an issue which

must be decided by the trier of fact. Although, the two

purposes may be closely related, they are distinct as a mat-

ter of law and admissibility of testimony in this category

depends on the nature of the issue, the circumstances of

the case, and judicial discretion. United States v.

Cameron, 21 M.J. 59 (C.M.A. 1985).

As stated earlier, the appellant’s defense was bottomed

on mistake of fact, i.e., she believed she was married dur-

ing the period she accepted the BAQ overpayments. In this

regard, she offered psychiatric testimony concerning her

emotional state as to why she unconsciously suppressed

her divorce. There was no dispute as to her mental respon-

sibility in general.

The only restriction the trial judge placed upon defense

counsel was that he could not, in effect, ask the witness to

state, what was essentially a legal conclusion, that the ap-

pellant thought she was married when she accepted the

overpayments. See generally Nichols v. State, 340 S.E.2d

624 (Ga. App. 1986). This was the ultimate issue to be

decided by the members under proper instructions.

Beyond the limitations just discussed the trial defense

counsel was free to draw from Doctor Federowich the

nature and extent of the appellant’s personality disorder

17a

and how it might effect her not remembering the earlier

divorce.

Under the facts of this case we find no clear abuse of

judicial discretion so as to justify reversing the trial court’s

decision to limit Doctor Federowich’s testimony. United

States v. Ness, 665 F.2d 248 (8th Cir. 1981).

Finally, we have examined the remaining assigned error

and resolve it adversely to the appellant. See United States

v. Ragins, 11 M.J. 42 (C.M.A. 1981).

For the reason stated the findings of guilty and the

sentence are AFFIRMED.

Senior Judge ForAy and Judge HOLTE concur.

OFFICIAL:

/s/ FELIX LANDAU

Captain, USAF

Chief Commissioner

wx U.S. GOVERNMENT PRINTING OFFICE: 1988— 162038