Petition for Writ of Certiorari — Neeley v. United States

g7-867. *

No. 87- it

RS tr a

§Jn the Supreme Court of the Bnited States

OCTOBER TERM, 1987

EVERETT PAUL NEELEY, PETITIONER

v.

UNITED STATES OF AMERICA, RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF MILITARY APPEALS

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

MILITARY APPEALS

THOMAS M. CARPENTER, ESQ. *

CHARLES L. CARPENTER, JR., ESQ.

P.O. Box 390

Little Rock, Arkansas 72203

and

LEO L. SERGI, Colonel, USAF

MARK BELL, Major, USAF

Appellate Defense Counsel

Office of the Judge Advocate

General

Bolling AFB, D.C. 20332 DC

(202) 767-1562

Counsel for Petitioner

*Counsel of Record

QUESTION PRESENTED

Whether Use Of A Federal Evidentiary Rule Concern-

ing The Basis For Expert Opinions To Interject Inadmissi-

ble Hearsay In Violation Of A Defendant’s Sixth Amend-

ment Right To Confrontation Of Witnesses Can Be

Deemed Harmless Error When The Testimony Concerns

An Ultimate Issue In Controversy?

(I)

TABLE OF CONTENTS

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Constitutional & Statutory Provisions Involved ...

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Reasons for Granting the Writ .................

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TABLE OF AUTHORITIES

Cases:

Alford v. United States, 282 U.S. 687 (1931) .

Brookhart v. Janis, 384 U.S. 1 (1966) .......

Bruton v. United States, 391 U.S. 123 (1968) .

Chapman vy. California, 386 U.S. 18 (1967) ..

Davis v. Alaska, 415 U.S. 308, 315 (1974) ....

Delaware vy. Fensterer, 424 U.S. 15, 106

OEE ho doused wh sedeeeeeess

Delaware v. Van Arsdall, 475 U.S. 673,

677, 106S.Ct. 1431, 1435 (1986) ..........

Harrington v. California, 395 U.S. 250, 254

EEE gy a

Ohio v. Roberts, 448 U.S. 56 (1980) .........

O’Kelley v. State, 607 P.2d 612 (1980) .......

Reardon v. Manson, 617 F.Supp. 932 (D.

EE ee

Tennessee v. Street, 471 U.S. 409, 105 S.Ct.

RE oa Ag

United States v. Affleck, 776 F.2d 1451 (10th

I ce TON a eg aw a4 aaa Oi

IV

Cases — Continued: Page

United States v. Hines, 23 M.J. 125 (C.M.A.

fan cee ck oe ae Ra ea ea 7

United States v. Lawson, 653 F.2d 299 (1981) . 11

United States v. Soulard, 730 F.2d 1292 (9th

Ce PSs cusaseuk sc ckaaaecsaeeuneake 1]

United States Constitution:

I a ules ae lated an 2

Statutes:

Uniform Code of Military Justice, 10 U.S.C.

§§ 801-940 (1982)

Article 90 (10 U.S.C. § 890) ........... 2

Aaticee 155 096 U.S. SSIS)... 21.50. 2

Asticte 176 (10 U.S.C. § Sze)... ...-0ss 2

Article 134 (10 U.S.C. § 934) .......... ay

Other Authorities:

Federal Rule of Evidence (F.R.E.) 703 ...... yy

8, 11, 12

Manual for Courts-Martial, 1984 Military

Rule of Evidence (M.R.E.) 703 ........... 2, 6,

8, 11, 12

New Mexico Evidence Rule 703 ............ 11

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1987

EVERETT PAUL NEELEY, PETITIONER

v.

UNITED STATES OF AMERICA, RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF MILITARY APPEALS

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

MILITARY APPEALS

Petitioner, Everett Paul Neeley (“Neeley”), presently

serving a sentence of life imprisonment at the Disciplinary

Barracks at Fort Leavenworth, Kansas, petitions this

Court for a writ of certiorari to review the affirmance of

his conviction and sentence by the United States Court of

Military Appeals.

OPINIONS BELOW

The opinion of the United States Court of Military Ap-

peals affirming Neeley’s conviction and sentence is

reported at Neeley v. United States, 25 M.J. 105 (CMA

1987). A copy of the opinion is included in the Appendix.

The prior opinion of the United States Air Force Court of

Military Review is reported at Neeley v. United States, 21

M.J. 606 (A.F.C.M.R.1986) and is also included in the

Appendix.

JURISDICTION

The opinion of the United States Court of Military Ap-

peals, rendered after a decision by that Court to grant re-

(1)

2

view of the issues presented here, was rendered on

Septembesr 28, 1987. This Court has jurisdiction to hear

this case pursuant to the judicial code. 28 U.S.C.

§ 1259(1). This section of the judicial code vests jurisdic-

tion in this Court to review decisions of the Court of

Military Appeals that were rendered under 10 U.S.C.

§ 867(b)(1).

CONSTITUTIONAL & STATUTORY PROVISIONS INVOLVED

Sixth Amendment, United States Constitution:

In all criminal prosecutions, the accused shall enjoy

the right. . .to be confronted with the witnesses

against him... .

Military Rule of Evidence 703 (identical to F.R.E. 703):

The facts or data in the particular case upon which

an expert bases an opinion may be those perceived by

or made known to the expert, at or before the hear-

ing. If of a type reasonably relied upon by experts in

the particular field in forming opinions or inferences

upon the subject, the facts or data need not be ad-

missible in evidence.

STATEMENT OF THE CASE

Neeley was convicted by a general courts-martial of

premeditated murder, and other offenses, in violation of

certain provisions of the Uniform Code of Military Justice

(““UCMJ”). 10 U.S.C. §§ 890;918;928;934. The evidence

at trial showed that Neeley and his victim — Gerri Harris —

were both serving as stewards in a mess hall at the Little

Rock Air Force Base near Little Rock, Arkansas, from

1984-1985. Neeley is black and Harris is white.

A romance developed between the two and, after dating

for a period of time, they moved into a trailer together.

After a time the relationship deteriorated and in January,

1985, Harris told Neeley that she was going to leave him.

Neeley seemed at first to accept the break-up. After

talking with Harris about the situation, he persuaded her

to accompany him back to the trailer to retrieve the rest of

her belongings. Upon arrival at the trailer, Harris

discovered that Neeley had destroyed most of her posses-

sions. As she started to leave Neeley confronted her and

began beating her with his fists. Only after she swore that

she loved him did he let her get up and go to an adjoining

trailer to obtain a ride back to the base.

Harris reported the incident to her supervisors. As a

result Neeley’s commanding officer—Lt.Colonel John

Grainger—gave Neeley a direct order to leave Harris

alone. Despite the order, Neeley immediately attempted to

talk to Harris in the mess hall where they worked, but was

rebuffed by her co-workers. Because of this direct viola-

tion of an order Neeley was ordered to undergo a psycho-

logical examination. A psychiatric social worker — Major

David Moyers—administered a series of psychometric

tests to Neeley and interviewed him at the hospital. The

tests indicated that Neeley was under a great deal of

pressure. Moyers prescribed sedatives and after two days

of hospital rest, Neeley was released. However, Moyers

was so alarmed by the test results that he phoned Lt. Col.

Grainger to tell him that Neeley’s results mirrored those of

an airman that had gone beserk and committed a

homicide/suicide in Alaska a year or two earlier.

Neeley was again ordered to stay away from Harris.

Harris, in the meantime, was almost daily informing her

supervisors and friends that she was afraid of Neeley. Yet,

on at least two different occassions she had three hour

conversations with Neeley about the future of his life. She

also pressed courts-martial charges against him for the

beating.

During this entire period of time Neeley attempted

suicide on at least one occasion. He attempted to get away

from -the air base through several different channels. He

4

also sought guidance and counseling from a base chaplain.

At the same time, he was making repeated attempts to

reconcile with Harris.

On February 6, 1987, he was formally charged under the

UCM] with violating a lawful order of a commanding of-

ficer, and with battery. After discussing possible defenses

with Area Defense Counsel David Minor —essentially the

Air Force public defender —he returned to his trailer.

The next morning at approximately 5:00 a.m. he walked

into the mess hall where Harris was working. He passed

several employees without speaking and continued into the

back part of the kitchen where Harris was cleaning up. He

then shot her five or six times with a .45 caliber pistol.

Harris died almost immediately.

Neeley then called the base law enforcement officers

and awaited their arrival. He complied with all of their re-

quests. Upon being taken to base police station he made

the first of three inculpatory statements that he would give

despite the fact his counsel was attempting to get in to

meet with him.

Neeley also consented to a search of his automobile and

the trailer. Numerous items of evidence were recovered at

these locations.

Because a charge of premeditated murder was con-

templated, Neeley was sent to Wilford Hall Air Force

Regional Medical Center at Lackland Air Force Base,

Texas, for psychiatric evaluation. Three psychiatrists in-

terviewed him as a part of a sanity board. He was also ad-

ministered another set of psychometric tests which were

evaluated by clinical psychologist, Capt. Nancy Slicner.

Capt. Slicner’s report found that the test results were

valid; that Neeley was under a great deal of stress; that he

displayed marked paranoid features. Despite the evalua-

tion of certain scales on the tests which could indicate mal-

ingering, Slicner felt the test was an accurate depiction of

Neeley’s psychological make-up.

This report was delivered to the Sanity Board comprised

in part of Lt. Colonel Thomas Martin and Lt. Col. Frank

Carpenter. Although these doctors did not discover in

their interviews of Neeley the various psychological

stressors suggested by Slicner, they failed to interview

Neeley again. Neeley was found to be sane at the time of

the Sanity Board and at the time of the offense.

Neeley’s defense counsel interposed a defense of mental

disease or defect. To sustain the proof on these charges

two forensic clinical psychologists were hired to test and

interview Neeley. Dr. Daniel Donahue and Dr. David Prit-

chard were both on the staff of the Arkansas State

Hospital where they conducted sanity evaluations on per-

sons charged with state crimes. "

Drs. Donahue and Pritchard were impressed by the fact

that Neeley’s psychometric tests before, immediately after,

and several months after the crime were all consistent. The

graphs of these charts were amazingly similar. In addition,

Dr. Pritchard administered the Millon Clinical

Multiphasic Inventory (““MCMI”) to Neeley and found

both consistency with other tests, and that the tests results

were Statistically valid.

This information combined with interview information

from the Sanity Board, their own interviews, and extensive

family history, led them to conclude that there was a

reasonable doubt as to Neeley’s sanity at the time of the

offense. The specific diagnosis was that Neeley suffered

from a major depressive episode with psychotic features.

The entire defense at trial was built around this defense.

A crucial aspect of this defense was the consistency of all

the psychometric tests before and after the offenses. Fur-

ther, Neeley made a major aspect of his presentation the

failure of Drs. Martin and Carpenter to re-interview him

when they failed to notice the psychological factors dis-

cussed in Slicner’s report.

Neen ee

6

After presenting this evidence at trial, the Government

called Slicner as a part of its rebuttal case. Slicner testified

that all of the tests administered to Neeley were found to

be within the validity scales of the tests. She then stated

that after learning she was going to be a witness in the case

she showed the psychometric test she did to six

psychologists at Wilford Hall. Over Neeley’s timely objec-

tion she was permitted to state that it was the opinion of

theses unnamed, unknown, psychologists that the Wilford

Hall tests results were intentionally inflated. In other

words, Neeley had faked the results.

She was later permitted to testify that she had been told

by the director of forensic services at Wilford Hall that the

MCMI did not have validity scales, and that nothing was

known about the test. This testimony completely under-

mined the foundation for Neeley’s insanity defense. The

military judge overruled Neeley’s hearsay and confronta-

tion objections opining that this evidence was admissible

under M.R.E. 703. This rule permits experts to base their

opinions on the data and materials compiled by other ex-

perts.

The United States Air Force Court of Military Review

found this ruling to be erroneous, but stated that it was

harmless error. The Court of Military Appeals affirmed

after subjecting it to a relevancy test.

Neeley seeks review from this Court to determine

whether the introduction of testimony on an ultimate issue

in the case in violation of his Sixth Amendment rights of

Confrontation can be subjected to an harmless error

analysis. Since M.R.E. 703—the rule upon which the in-

troduction of the evidence was based —is exactly the same

as F.R.E. 703, Neeley suggests that the opinion in this case

has far reaching impact on both the military and civilian

judicial systems.

REASONS FOR GRANTING THE WRIT

The Court should review this case and determine

whether the admission of evidence on a critical fact in

dispute — that has not otherwise been admitted by the

defendant—in violation of the defendant’s Sixth

Amendment right to confront adverse witnesses is

subject to the harmless error analysis set forth in

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

There is no more fundamental right of an accused than

the Sixth Amendment right to confront the accusers and

subject their testimony to cross examination. The right to

confront and cross-examine adverse witnesses is such an

essential and fundamental right that the denial of this

right, without a waiver, is a constitutional error of the first

magnitude. Ohio v. Roberts, 448 U.S. 56 (1980);

Brookhart v. Janis, 384 U.S 1 (1966); Alford v. United

States, 282 U.S. 687 (1931). This right is applicable in

military cases as well as civilian cases. United States v.

Hines, 23 M.J. 125 (CMA 1986).

The question presented here is whether a harmless error

analysis applies when the denial of confrontation is on a

criticalfact in dispute, particularly when that fact has not

been previously admitted by the defendant. This Court has

never ruled that denial of a defendant’s right to confront

an adverse witness’ conclusion about a totally disputed

fact is subject to harmless error analysis. This question,

distinguishing this case from recent confrontation cases, is

reason to grant the writ.

This case involves a situation in which a testifying expert

witness — who had changed her opinion upon learning she

would be a witness at trial—was permitted to express the

opinions of five or six non-testifying experts as to: (1) the

validity of Neeley’s psychometric test results; (2) the

veracity of one of Neeley’s expert witnesses concerning a

particular psychometric tool. These opinions were used to

ienpeesneeneae

8

bolster the witness’ changed opinion. The testimony was

presented after both of Neeley’s expert witnesses had

testified that the validity of these tests was an extemely im-

portant factor in their conclusion about his mental condi-

tion. The effect, then, was to undercut two critical factors

to Neeley’s defense.

The case directly addresses the extent to which M.R.E.

703 (which is identical to F.R.E. 703), can be a basis for

violating a defendant’s confrontation rights in a criminal

trial setting. The Court of Military Appeals opinion is one

of the few cases that has addressed the proper scope of

these rules. To what extent an expert can testify about the

opinions of other experts without violating a defendant’s

Sixth Amendment rights is a question that has received

conflicting answers by the courts that have considered it.

Because of the identical language in the two rules, the

Neeley decision may be relied upon by the civilian courts;

thus, the precedent has far reaching implications.

This Court should grant the petition and review this

matter on the merits. The Court should take this oppor-

tunity to determine whether an accused’s right to confront

witnesses can be violated under the guise of an evidentiary

rule.

1. This Court has long recognized that the Sixth

Amendment permits a criminal defendant to be con-

fronted with the witnesses against him. The essential pur-

pose of this right is to provide the defendant “the oppor-

tunity of cross examination.” Davis v. Alaska, 415 U.S.

308, 315 (1974).

This guarantee of cross examination is limited. The

limitation is merely that the defendant be provided an op-

portunity for effective cross examination. Delaware v.

Van Arsdall, 475 U.S. 673, 677, 106 S.Ct. 1431, 1435

(1986). A defendant is not permitted an unfettered oppor-

tunity to explore every conceivable factor that may lead a

jury to question the integrity of a particular witness. /d.

9

However, if a defendant’s right of confrontation is

violated, constitutional error occurs. The prejudicial

nature of this error is more evident if the case involves the

improper admission of evidence as opposed to the im-

proper exclusion of evidence. Compare, Tennessee v.

Street, 471 U.S. 409, 105 S.Ct. 2078 (1985); Ohio v.

Roberts; Delaware v. Fensterer, 474 U.S. 15, 106 S.Ct.

292 (1985).

This Court has concluded that in particular fact situa-

tions the admission of evidence in violation of a confron-

tation right may be subject to a harmless error analysis.

Harrington v. California, 395 U.S. 250, 254 (1969). Fur-

ther, the Court has ruled that the improper exclusion of

evidence may be subjected to harmless error analysis.

Delaware v. Van Arsdall. But, the Court has never ruled

that the admission of evidence on a critical fact in dispute

in violation of a defendant’s Sixth Amendment rights to

confrontation may be subjected to harmless error analysis.

It is on this point that this case turns.

This case is readily distinguishable from Harrington.

There the error was prohibiting the defendant from con-

fronting through cross examination co-defendants whose

statements had been admitted against him in violation of

the rule in Bruton v. United States, 391 U.S. 123 (1968).-

At first blush this would appear to be per se prejudical er-

ror mandating reversal. However, the facts of the case

showed that the error was properly subjected to harmless

error analysis because the defendant had admitted in open

court that he was present at the crime scene. In other

words, he had admitted the thrust of the evidence against

him contained in the statements of the non-testifying co-

defendants.

Here just the opposite has occurred. Neeley raised a

defense of mental disease or defect. A significant portion

of the proof that he was suffering trom mental disease or

defect at the time the crime was committed was based on

10

the validity of his test results on certain psychometric tests.

This validity was not only founded internally within the

results of three Minnesota Multiphasic Personality Inven-

tories (“MMPI”) that he took before and after the offense,

but also on the validity scales on the MCMI.

Government witness Nancy Slicner initially agreed that

the MMPI administered to Neeley at Wilford Hall was

valid. Only when she learned she was going to testify did

she change her opinion. Only then did she show the test to

the non-testifying psychologists, and then she offered their

consensus opinion that Neeley’s MMPI was invalid.

Since the three MMPI’s administered to Neeley before

and after the offense were so strikingly similar,

discrediting one would discredit all three. Likewise, the

opinions of Drs. Donahue and Pritchard—Neeley’s ex-

perts— would, by their own admission, be different if the

MMPI’s were determined to be invalid.

Slicner also provided evidence from a non-testifying

‘psychologist that the MCMI-—relied upon by Dr. Prit-

chard because of its unique internal validity scales —did

not have validity scales. Thus, a witness that Neeley had

no opportunity to confront was permitted, through

Slicner, to testify that Neeley’s expert was lying. Since Dr.

Pritchard had testified forcefully that the validity scale of

the MCMI helped provide substantial comfort to his

diagnosis, discrediting this testimony effectively

discredited all of Dr. Pritchard’s analysis.

The key is that unlike Harrington, or any other case

from this Court, evidence from non-testifying witnesses

was admitted on the only critical fact in dispute—i.e.,

Neeley’s legal responsibility at the time the offense was

committed. This Court should grant the petition and rule

that- denial of the opportunity to confront adverse

witnesses is not subject to harmless error analysis if that

evidence concerns a criticat fact in dispute. In such situa-

1]

tions, violations of the defendant’s confrontation rights

are per se prejudicial and reversal is mandated.

2. A second reason for granting the writ is to deter-

mine if hearsay evidence, which violates an accused’s con-

frontation rights, may be smuggled in through the use of

Rule 703.-In this case M.R.E. 703 is at issue. However,

since this rule is identical to F.R.E. 703, and U.R.E. 703,

the impact of the Neeley opinion transcends the military

judicial system. The courts that have considered the scope

of this rule are in disagreement. In Reardon v. Manson,

617 F.Supp. 932 (D.Conn. 1985) a petition for writ of

habeas corpus was granted because the defendant’s convic-

tion was obtained through testimony of one expert relying

upon the opinions of other experts as to whether certain

evidence was a controlled substance. The federal court

concluded that a defendant had an absolute right to con-

front the witnesses making opinions on this ultimate issue

to determine their qualifications and bases for the opin-

ions.

Similarly in O’Kelley v. State, 607 P.2d 612 (1980), a.

conviction was reversed because the testimony of a non-

testifying psychiatrist was offered under the guise of New

Mexico Evidence Rule 703 (which is identical to M.R.E.

703). The New Mexico court reasoned that Rule 703 ap-

plies to the information gained from others, but it does

not permit an expert to smuggle in hearsay by stating the

opinions of others.

However, the Seventh Circuit has permitted hearsay

opinions of others to be presented through expert

witnesses under F.R.E. 703. United States v. Lawson, 653

F.2d 299 (1981). See also United States v. Affleck, 776

F.2d 1451 (10th Cir. 1985); United States v. Soulard, 730

F.2d 1292 (9th Cir. 1984). There is some confusion in these

opinions as to the basis for the admission of the testimony.

There is also a question as to whether the defendant had

access to the non-testifying witnesses. These cases are also

12 ome

unclear as to whether the evidence was a direct statement

of the witnesses’ opinions as in this case.

The key, though, is that there is confusion in the various

courts that are addressing the tension between Rule 703

and a defendant’s right to confront his accusers. This

court should grant the writ to resolve this tension. Neeley

submits that the Court should determine that in criminal

cases evidence submitted on critical facts in dispute must

come from witnesses subject to cross examination. The

_ evidence must not, as here, be smuggled in under the guise

of Rule 703.

CONCLUSION

Rule 703 was intended to make it easier for experts to

provide testimony that would assist a factfinder in review-

ing evidence for which specialized knowledge is required.

In this case the rule was used to provide the factfinder with

the opinions of non-testifying experts on the ultimate issue

in dispute. Such use of the rule is improper because it

denies the criminal defendant the fundamental right to

confront adverse witnesses and subject their opinions to

cross examination. Some courts have prohibited such use

of Rule 703, while others have permitted such use. This

Court should grant the writ and determine whether Rule

703 can be used in violation of an accused’s Sixth Amend-

ment right to confront witnesses. If not, the Court should

then determine whether the improper use of Rule 703 can

13

be subjected to a harmless error analysis when the ad-

mitted evidence addresses a critical fact in dispute.

Respectfully submitted,

THOMAS-M. CARPENTER, ESQ. *

CHARLES L. CARPENTER, JR., ESQ.

P.O. Box 390

Little Rock, Arkansas 72203

(S01) 371-4527

and

LEO L. SERGI, Colonel, USAF

MARK BELL, Major, USAF

Appellate Defense Counsel

Office of the Judge Advocate

General

Bolling AFB, D.C. 20332

(202) 767-1562

Counsel for Petitioner

*Counsel of Record

APPENDICES

UNITED STATES COURT OF MILITARY APPEALS.

No. 54,317/AF

ACM 24645

UNITED STATES, APPELLEE

Vv.

ERNEST P. NEELEY, SENIOR AIRMAN

U.S. AiR FORCE, APPELLANT

September 28, 1987

COUNSEL

For Appellant: Thomas M. Carpenter, Esq. (argued);

Charles L. Carpenter, Jr., Esq., Colonel Leo L. Sergi,

Lieutenant Colonel Michael D. Wims (on brief); Major

Harry L. Heintzelman.

For Appellee: Major Kathryn I. Taylor (argued); Col-

onel Kenneth R. Rengert and Lieutenant Colonel Donal F.

Hartman, Jr. (on brief); Colonel Joe R. Lamport and

Lieutenant Colonel Robert E. Giovagnoni.

OPINION OF THE COURI

COX, Judge:

Contrary to his pleas, appellant was convicted of

premeditated murder and other offenses, in violation of

Articles 118, 128, 134, and 90, Uniform Code of Military

Justice, 10 U.S.C. §§ 918, 928, 934, and 890, respectively.

He was sentenced to a dishonorable discharge, confine-

ment for life, reduction to E-1, and total forfeitures. The

convening authority approved these results, and the Court

(la)

2a

of Military Review affirmed. 21 M.J. 606 (1985). We

granted review to consider:

WHETHER THE MILITARY JUDGE ERRED TO

THE SUBSTANTIAL PREJUDICE OF THE AC-

CUSED WHEN HE ADMITTED INTO

EVIDENCE, OVER DEFENSE OBJECTION, THE

OPINIONS OF FIVE PSYCHOLOGISTS THAT

THE ACCUSED HAD INTENTIONALLY IN-

FLATED THE RESULT OF HIS PSYCHOLOGI-

CAL TEST, SUCH OPINIONS BEING INAD-

MISSIBLE HEARSAY, AND SUCH A RULING

BY THE JUDGE DENYING THE ACCUSED HIS

RIGHT TO CROSS-EXAMINE AND CONFRONT

THE PSYCHOLOGISTS CONCERNING THEIR

OPINIONS.

The issue was raised in the following factual context.

Appellant and the victim lived together in an off-base

trailer. He assaulted and battered the victim by hitting her

about the face and head, and, when she informed him that

she was moving back to her barracks, he threatened to kill

her. His commanding officer was informed of the incident

and ordered the appellant to stay away from the victim.

Later, in defiance of the order, appellant went to the din-

ing facility where she worked and shot her seven times

with a .45-caliber pistol, killing her.

Appellant contested his legal responsibility for the

homocide on the basis that he was not mentally compe-

tent. In support of this defense, he called two clinical

psychologists who asserted that, although appellant was

competent to stand trial, he was “more likely than not. . .

unable to conform his behavior to the intent of the law.”

When they evaluated appellant’s mental condition, both

psychologists had available for their consideration the test

results of three Minnesota Multiphasic Personality Inven-

tories (MMPI). One of the tests had been administered

after the assault upon the victim but before she was killed.

3a

In rebuttal, the Government called three psychiatrists

who testified that appellant was mentally responsible for

the offenses in terms of the appropriate legal standard. See

United States v. Frederick, 3 M.J. 230 (C.M.A. 1977).

It was in the presentation of the Government’s case re-

garding appellant’s sanity that the evidence giving rise to

the granted issue was presented by trial counsel. The

Government called as its witness a clinical psychologist

who had reviewed the results of several psychological tests

administered to appellant. In this witness’ opinion, ap-

pellant had intentionally attempted to establish the ex-

istence of a psychological condition that did not exist. She

further testified over defense objection that she had shown

the test results to other psychologists, and she was allowed

to state on the record that it “was the consensus among

these people when” they were shown the profile “(t]he it

was intentionally inflated.”

The Court of Military Review found that, although

Mil.R.Evid. 703, Manual for Courts-Martial, United

States, 1969 (Revised edition), permits psychologists to

rely on the opinions of others, the military judge erred by

allowing her to express those other opinions. However, the

court ruled that appellant had not been prejudiced by this

action. 21 M.J. at 608-09.

Recently, we had occasion to discuss the problem of

smuggling hearsay statements into evidence under the

guise of an expert witness relying on the hearsay to form

an opinon. United States v. Stark, 24 M.J. 381, 384

(C.M.A. 1987). Indeed, as recognized by Chief Judge

Hodgson, citing the editorial comment of S.Saltzburg,

L.Schinasi, & D.Schlueter, Military Rules of Evidence

Manual 596 (2d ed. 1986), that “unless care is taken in

utilizing Rule 703, parties can ‘smuggle’ much hearsay

evidence into a case, when such evidence is not properly

te ee

4a

admitted for its truth.” See United States v. Neeley, supra

at 608. As we noted in Stark, the problem is the admission

into evidence of statements that are clearly hearsay under

the guise that they are not being offered for “ ‘the truth of

the matter asserted.’ ” 24 M.J. at 384.

As recommended by Saltzburg, Schinasi, & Schlueter,

we concluded in Stark that Mil.R.Evid. 403 provides an

appropriate vehicle for use by the military judge in resolv-

ing the admissibility of this type of hearsay evidence. Jd.

We, therefore, reject the black-letter test suggested by

Chief Judge Hodgson that “[w]hat must be remembered is

that while expert witnesses may rely on hearsay under Rule

_ 103 to form their opinion, the hearsay itself is not admissi-

ble.” United States v. Neeley, supra at 608, citing United

States v. Ramos, 725 F.2d 1322 (11th Cir. 1984); Coulter

v. Stewart, 642 P.2d 602 (N.M. 1982); and State v. Towne,

453 A.2d 1133 (Vt. 1982).

We recognize that our disagreement with the court

below may be only one of semantics because a statement is

not hearsay by definition unless it is “offered in evidence

to prove the truth of the matter asserted.” Mil.R.Evid.

801(c). We simply believe that the distinction between

testimony that is offered 1) for the truth of the matter or 2)

to prove the underlying basis for an expert opinion is a line

too fine to draw. Mil.R.Evid. 403 is a better vehicle to use

in resolving the conflict.

However, Mil.R.Evid 401 should not be overlooked in

trying to resolve admissibility of evidence under

Mil.R.Evid. 703. Is the proffered evidence relevant? What

does the evidence tend to prove or disprove about the

case? What is the “fact . . . of consequence” that is being

established?

The instant case offers us a classic example. What is the

“fact . . . of consequence” to be proved by the question to

the psychologist? If the Government is trying to prove, by

offering the hearsay opinions of other psychologists, that

el

Sa

appellant intentionally inflated the results of his tests, then

the evidence is clearly hearsay and not admissible.

If, on the other hand, the Government is seeking to

prove that its expert psychologist had a basis for her opin-

ion and that experts in her field “reasonably relied upon”

the opinions of other psychologists “in forming opinions

or inferences,” then the evidence was being offered to

prove that the witness had a basis for her own expert opin-

ion. And although “the truth of the matter asserted” is

smuggled into evidence, the only true evidence that ap-

pellant inflated the test results came from the witness on

the stand.

The real question is, therefore: Does the danger of un-

fair prejudice created by the testimony outweigh its pro-

bative value? In this regard, we agree with the court below

that there was “no reasonable likelihood” that admission

of the evidence “affected the judgment of the triers of

fact.” United States v. Neeley, supra at 609.

We do believe, however, that the military judge should

give a limiting instruction concerning the appropriate use

of this type of testimony. /d. at 608 n.3. See United States

v. Affleck, 776 F.2d 1451 (10th Cir. 1985); United States

v. Sims, 514 F.2d 147, 149-50 (9th Cir.), cert. denied, 423

U.S. 845 (1975) (when “such evidence” is admitted, it

“becomes necessary for the court to” give a limiting in-

struction to the jury). However, failure to do so here does

not constitute plain error. United States v. Fisher, 21 M.J.

327 (C.M.A. 1986); Mil.R.Evid. 105 (upon proper re-

quest, limiting instructions shall be given).

The psychologist’s testimony related primarily to her

own opinion concerning the test results in question. The

prosecution did not emphasize the opinions of the other

psychologists during appellant’s fairly lengthy trial. Fur-

thermore, three psychiatrists, two of whom participated in

the sanity board that examined appellant, unequivocally

testified that appellant was criminally responsible for the

offenses in question, while the defense psychologists ex-

6a

pressed their opinions in terms of “more likely than not.”

Given the entire record, the danger of unfair prejudice was

inconsequential.

We also have examined the entire record of trial and

find no “error [which] materially prejudice[d] the substan-

tial rights of the accused.” Art. 59(a), UCMJ, 10 U.S.C.

§ 859(a).

The decisions of the United States Air Force Court of

Military Review is affirmed.

Judge SULLIVAN concurs.

EVERETT, Chief Judge (concurring in the result):

I fully agree with Chief Judge Hodgson’s opinion in this

case in the court below. 21 M.J. 606 (1985).

As is becoming increasingly apparent, the liberal treat-

ment of expert testimony under the Federal Rules of

Evidence and the Military Rules of Evidence has become

an invitation to evade the hearsay prohibition and the

defendant’s right of confrontation. The present case is a

perfect example of this phenomenon.

The defense offered the testimony of two psychologists

with eminent qualifications. Their conclusion that ap-

pellant had been “in a psychotic state” at the time of the

homicide was based in part on psychological tests that had

been administered to Neeley. These included the Min-

nesota Multiphasic Personality Inventory (MMPI) test,

which had been administered to Neeley shortly before he

killed his girlfriend and which also had been administered

after that slaying. In rebuttal, the Government called

various witnesses, including Captain Nancy Slicner, a

psychologist serving on active duty. She had never inter-

viewed Neeley but had analyzed the MMPI test results.

Although she originally had concluded that the tests were

“valid” and indicated a thought disorder—a conclusion

she had communicated to the sanity board—her view at

the time of trial was that Neeley had “over-endorsed” cer-

tain behavior —that is, that he had been faking.

Ta

To bolster her testimony, Captain Slicner explained that

she had reviewed the test results with five other

psychologists. When trial counsel asked her about a “con-

sensus” among the psychologists, defense counsel properly

objected. Nonetheless, the witness was allowed to reply

that these other psychologists believed the profile had been

“intentionally inflated” and so was an unreliable basis for

forming an opinion as to appellant’s sanity.

As the Court of Military Review pérceived, such

testimony goes far beyond the leeway conferred by

Mil.R.Evid.—703. That Rule purports to embrace only

“facts or data”—terms which at first glance would not

seem to include opinions of third persons. However,

Mil.R.Evid. 703 is identical to Fed.R.Evid. 703, as to

which the Advisory Committee’s Note specifically states:

Thus, a physician in his own practice bases his

diagnoses on information from numerous sources

and of considerable variety, including statements by

patients and relatives, reports and opinions from

nurses, technicians and other doctors, hospital

records, and X rays.

See S. Saltzburg and K. Redden, Federal Rules of

Evidence Manual 687 (4th ed. 1986). (Emphasis added.)

Although Mil.R.Evid. 703 apparently was intended to

allow an expert to base his opinion —at least, in part—on

the opnions of other experts, and although Mil.R.Evid.

705 allows an expert to give the reasons for his opinion, |

still am unconvinced that, on direct examination and over

objection, an expert may go as far as did Captain Slicner.

Although an expert should be allowed to testify that he has

consulted other experts and considered their opinions in

formulating his own conclusion, the specifics of the other

experts’ opinions cannot be elicited on direct examination,

if the hearsay prohibition is to be respected.

If the opposing party wishes to bring to the attention of

the factfinder any details about opinions that were relied

8a

on by an expert witness, he can do so on cross-examina-

tion. Moreover, if those details are introduced in evidence,

the military judge should give a limiting instruction point-

ing Out that this evidence can be utilized only for

evaluating whether an adequate basis existed for the opin-

ion of the witness who was tesifying in court. Such an ap-

proach will eliminate the possibility of unfairness to an

accused without unduly limiting the prosecutor in his

presentation of relevant evidence.

Although the evidence to which the defense objected

should have been excluded, I, too, am convinced by the

record that it was not material in procuring appellant’s

conviction. Therefore, I join in affirming the court below.

9a

UNITED STATES AIR FORCE COURT OF

MILITARY REVIEW

ACM 24645

UNITED STATES

Vv.

SENIOR AIRMAN EVERETT P. NEELEY, FR 535-82-1310

UNITED STATES AIR FORCE

5 NOVEMBER 1985

Sentence adjudged 16 July 1984 by GCM convened at

Little Rock Air Force Base, Arkansas. Military Judge:

Barton L. Spillman.

Approved sentence: Dishonorable discharge, confine-

ment at hard labor for life, forfeiture of all pay and

allowances and reduction to airman basic.

Appellate Counsel for the Accused: Mr. Thomas M.

Carpenter and Mr. Charles L. Carpenter, Jr., Little Rock,

Arkansas; Colonel Leo L. Sergi, and Lieutenant Colonel

Michael D. Wims. Appellate Counsel for the United

States: Colonel Kenneth R. Rengert, Colonel Andrew J.

Adams, Jr., and Lieutenant Colonel Donal F. Hartman,

Jr.

Before

HODGSON, FORAY and MICHALSKI

Appellate Military Judges

10a

DECISION

HODGSON, Chief Judge:

The events that led to the offenses before us are not in

dispute. From all accounts the appellant and Airman First

Class Harris, who lived together in an off-base residence,

enjoyed a bittersweet relationship which began deteri-

Orating in the fall of 1983. On 11 January 1984, she told

the appellant that their arrangement was not working out

and she no longer wished to live with him and was moving

back to the barracks. The next day, the appellant beat

Harris badly about the face and head and threatened to

kill her if she left him. He sipped hitting her only after

she agreed to stay with him e«.d not report the assault. To

the contrary, she told her commander of the incident who

interviewed the appellant and ordered him to stay away

from her. Subsequently, on 6 February charges were

preferred against the appellant for assault and com-

municating a threat. On 7 February, he went to the dining

facility on Little Rock Air Force Base where harris worked

and shot her five times in the head, neck and chest at point

blank range with a .45 caliber pistol he had purchased

three days before.

The circumstances just described resulted in a pre-

meditated murder conviction together with various lesser

offenses.' The approved sentence extends to a dishonor-

able discharge, life imprisonment, total forfeitures and

reduction to airman basic.

Early in the proceedings individual defense counsel con-

ceded that his client killed Harris, but argued that this of-

' Additionally, the appellant was convicted of assault and battery,

communicating a threat, disobeying an order to stay away from Air-

man Harris, and retaliating against a federal witness by causing bodily

harm to Airman Harris in violation of 18 U.S.C. 1513.

lla

fense along with the lesser charges were the result of a

mental condition that made the appellant not accountable

for his actions. To support the existence of a mental state

showing a lack of substantial capacity for the appellant to

conform his conduct to the requirements of law, the

defense offered the testimony of Doctor Dane Donahue

and Doctor David A. Pritchard, two well qualified

psychologists. Both individuals diagnosed the appellant as

suffering from a “major depressive episode with psychotic

features.” Both agreed that it is more likely than not the

appellant was unable to conform his behavior to the intent

of the law. Further, Doctor Pritchard and Doctor

Donahue were of the view that a person could be in a

psychotic state and yet appear very normal. It was their

conclusion that the appellant’s girlfriend’s decision to ter-

minate their interracial relationship, and the appellant’s

feeling that the break-up was caused by racial bias, trig-

gered a “major depressive episode” that culminated in the

killing.

In rebuttal, the Government tendered the testimony of

three psychiatrists two of whom, Lieutenant Colonel

(Doctor) Frank Carpenter and Lieutenant Colonel (Doc-

tor) Thomas A. Martin III, were members of the ap-

pellant’s sanity board that met on 27 February 1984. Doc-

tor Carpenter is the Director of Psychiatric Residency

Training at Wilford Hall Medical Center, Lackland Air

Force Base, Texas; Doctor Martin was the Chief of In-

Patient Psychiatry at the same medical center. Based upon

a review of medical records, clinical interview, Doctor

Donahue’s notes, psychological tests and related

materials, both individuals stated they found no evidence

of a psychosis or delusional thinking in the appellant.

Doctor Martin indicated the appellant did not suffer from

a “major depressive episode,” but had a “mixed personali-

ty disorder” which would not impact on his ability to

conform his behavior to the law. Doctor Carpenter also

12a

found nothing in the appellant’s medical records to sup-

port a diagnosis of “a major depressive episode.” In his

opinion the appellant’s medical history contradicts any

suggestion that his actions were the result of a psychosis or

delusional thinking. Doctor Carpenter thought revenge

was the motive for the killing.

The third psychiatrist to testify for the Government was

Colonel (Doctor) William H. Grant, a consultant in

psychiatry to the Surgeon General of the Air Force. After

reviewing the findings of the sanity board, the notes and

opinions of Doctors Donahue and Pritchard and other

materials relating to the appellant, Doctor Grant was of

the opinion there was “. . . not a smidgen of evidence” to

indicate a psychosis or delusional thinking. He found

nothing to justify a diagnosis of a “severe depression with

psychotic features.”

As a part of their case in rebuttal the prosecution called

Captain (Doctor) Nancy A. Slicner, a Staff Psychologist

in the Out-Patient Mental Health Clinic at Wilford Hall.

Part of her responsibility is to evaluate psychometric tests

given patients meeting a sanity board. One such test is the

Minnesota Multaphasic Personality Inventory (MMPI),

which is used to identify psychotic disorders. The test has

indicators to recognize individuals attempting to fake

psychotic behavior. The appellant was given the MMPI

twice —once at Little Rock Air Force Base on 16 January

1984 just after his assault on his girl friend and again in

February at Wilford Hall after he had killed her. When

Doctor Slicner compared the two results the first appeared

to be within a normal range while the latter indicated a

“thought disorder,” but with no accompanying symptoms,

After studying the second test and consulting with her col-

leagues at Wilford Hall, she concluded that the appellant

“intentionally over-endorsed” the second test, i.e., at-

tempted to establish a mental condition that was not pres-

ent. After Doctor Slicner stated she had shown the appel-

13a

lant’s MMPI profile to other psychologists at Wilford

Hall, the following testimony was admitted over defense

objection:

Q: What was the consensus among these people

when you showed them this profile?

A: That is was intentionally inflated.

Appellate defense counsel argue that the trial judge erred

to the substantial prejudice of the appellant when he

allowed such evidence, as it denied the defense the right to

cross-examine and confront the psychologists concerning

their opinions.

Mil. R. Evid. 7032 permits an expert to rely on facts and

data made known to the expert at or before the hearing,

even if such facts or data are neither admitted nor admissi-

ble in evidence, so long as they are of a type “reasonably

relied upon by experts in the particular field in forming

opinions or inferences upon the subject.” See United

States v. Benedict, 20 M.J. 939 (A.F.C.M.R. 1985). We

have no hesitation in holding that psychology is a field in

which the experience and opinions of others trained in the

discipline would be of immeasurable assistance to one at-

tempting to make a diagnosis. United States v. Arias, 678

F. 2d 1202 (4th Cir. 1982). What must be remembered is

that while expert witnesses may rely on hearsay under Rule

703 to form their opinion, the hearsay itself is not admissi-

ble. United States v. Ramos, 725 F. 2d 1322 (11th Cir.

1984); Coulter v. Stewart, 642 P. 2d 602 (N.M. 1982);

State v. Towne, 543 A. 2d 1133 (Vt. 1982). As the editorial

comment to Mil. R. Evid. 703 stated, “. . . unless care is

taken in utilizing Rule 703, parties can ‘smuggle’ much

2 Rule 703 Bases of Opinion Testimony by Experts

The facts or data in the particular case upon which an expert vases

an opinion or inference may be those perceived by or made known to

the expert, at or before the hearing. If of a type reasonably relied upon

by experts in the particular field in forming opinions or inferences

upon the subject, the facts or data need not be admissible in evidence.

l4a

hearsay evidence into a case, when such evidence is not

properly admitted for its truth.” See Saltzburg, Schinasi

amd Schlueter, Military Rules of Evidence Manual, p. 329

et seq.’ Accordingly, the trial judge erred when he per-

mitted Doctor Slicner to testify that her colleagues also

thought the appellant’s second MMPI scores were “inten-

ticnally inflated.”

However, we do not consider the judge’s errant ruling to

be of the magnitude that appellate defense counsel sug-

geil. First, the overwhelming portion of Doctor Slicner’s

testimony concerned her opinion that the appellant “inten-

tionally inflated” his MMPI test results; she did not just

repeat the opinions of others. See Mallard v. Colonial Life

and Accident, 326 S.E. 2d 7 (Ga. App. 1985). Second, the

prosecutor did not use this one sentence from a transcript

of over 1000 pages to convince the members that the ap-

pelant was mentally responsible for his actions. Cf. State

v. Towne, supra (Prosecution “highlighted” the hearsay in

its closing argument). And finally, the Government’s case

as to the appellant’s mental state was based on the

testimony of three psychiatrists, including two members of

the Sanity board that examined the appellant, who were in

total agreement that the appellant did not suffer a “major

depression with psychotic features.” Contrasted to this

clear statement that the appellant had no mental disorder,

was the qualified testimony of two defense psychologists

thet, “in their opinion, if /was] more likely than not, the

appellant was unable to conform his behavior to the intent

of he law.” We are convinced that no reasonable likelihood

exists that the improper admission of the hearsay evidence

just discussed affected the judgment of the triers of fact.

3A trial judge would be well-advised to give a limiting instruction

to tke members whenever an expert relies upon information that is not

admissible for its truth,

lSa

United States v. Colon-Angueria, 16 M.J. 20 (C.M.A.

1983); United States v. Slovacek, _ M.J. ~~

(A.F.C.M.R. 1985).

Both Doctor Slicner and Doctor Grant used charts to il-

lustrate portions of their testimony concerning the ap-

pellant’s mental condition. Trial defense counsel did not

object to the use of the charts at the time the witnesses

referred to them. In oral argument before us, appellate

defense counsel, who represented the appellant below,

candidly admitted that the lack of objection at trial when

the charts were first used was a planned strategy as it “did

not appear that the members were paying any attention to

them.” This assessment was incorrect for after the

members began deliberating, they asked to again see the

charts. Over defense objection, the trial judge allowed the

members to view them*—they were not taken into the

deliberation room.

Appellate defense counsel now contend the trial judge

committed prejudicial error by permitting the members to

review and take notes of charts prepared by government

witnesses which highlighted their testimony. Initially, we

note the trial defense counsel did not object to the

witnesses’ using the charts to illustrate their testimony.

Further, they had the opportunity to cross-examine the

witnesses on the preparation of the charts and what they

represented. Additionally, the charts contain no substan-

tive evidence, but were merely visual aids to explain the

testimony. In United States v. Dowen, 469 F. 2d 314 (10th

Cir. 1974), the introduction into the jury room of a

blackboard summarizing the indictment was held not to be

error. The Seventh Circuit Court of Appeals permitted the

jury to use transcripts of tapes of two telephone conversa-

tions during its deliberations even though the transcripts

were not admitted into evidence. United States v. Dorn,

4+ The members viewed seven charts separately for approximately 15

minutes total.

l6a

561 F. 2d 1252 (7th Cir. 1977). Permitting members to

review illustrative exhibits used by witnesses as a visual aid

is within the sound discretion of the trial judge. Under the

facts before us we find no abuse of that discretion.’ See

generally United States v. Cadena, 585 F. 2d 1252 (1978).

Appellate defense counsel next argue that their client’s

conviction cannot stand because it was arrived at by less

than a unanimous verdict. This argument has been raised

and rejected numerous times during appeals by military

accused. We also reject this claim of error. United States

v. Seivers, 9M.J. 612 (A.C.M.R. 1980); aff'd 9 M.J. 397

(C.M.A. 1980); see United States v. Hutchinson, 17 M.J.

397 (C.M.A. 1984); Cert. denied 105 S. Ct. 384 (1984).

Finally, appellate defense counsel assert that the trial

judge’s instruction on sentence reconsideration was incor-

rect. We agree, but find this not to be prejudicial error.

During the court’s deliberations on sentence, the presi-

dent requested an instruction on sentence reconsideration

(reballoting). The judge, in an out-of-court hearing, went

over his proposed instruction with both counsel. The trial

defense counsel objected to the proposed instruction,

asserting that it was incorrect and arguing, correctly, that

the instruction should read that all members must oppose

reconsidering a death sentence for such reconsideration to

> Of course, prudence would suggest that where exhibits are used

but not admitted, the trial judge should give a cautionary instruction

that the items are not in evidence and are not to be treated as such.

17a

not be required. Over this objection, the trial judge gave

the following instruction in part:

As there are eight members present, five must vote for

reconsideration with a view towards increasing the

sentence. In voting for reconsideration with a view

toward decreasing the sentence, if the accused has

been sentenced to confinement at hard labor for life,

then six members must vote for such reconsideration,

and if the accused has been sentenced to death, then

eight members must vote for such reconsideration.

We agree that this instruction was misleading. However,

given the mandatory minimum sentence of life imprison-

ment we conclude that the appellant was not prejudiced.

Article 118, U.C.M.J.

First, he received the minimum possible confinement

for premeditated murder. Second, while appellate defense

counsel argue that the erroneous instruction precluded

reconsideration of punishments ancillary to life imprison-

ment, we think it inconceivable that in light of the facts

before them the sentencing authority would impose any

ancillary sentence element other than a dishonorable

discharge, total forfeitures and reduction to airman basic.

We have carefully examined all aspects of this three

week murder trial. We are morally convinced the appellant

received a fair trial. It is that to which he is entitled. Ac-

cordingly, the findings of guilty and the sentence are

18a

AFFIRMED.

FORAY, Senior Judge and MICHALSKI, Judge, concur.

OFFICIAL

/S/ CHARLES L. WILLE

Charles L. Willie

Captain, USAF

Chief Commissioner

US GOVERNMENT PRINTING OFFICE 1987— 202