Petition for Writ of Certiorari — Garcia v. United States

Supreme Court, &.3,

(1) FILED

S6 SO Jul 16 190g

OFFiv. Ut € CLERK

IN THE

Supreme Court of the United States ;

OCTOBER TERM, 1995

MASTER SERGEANT FERNANDO GARCIA,

PETITIONER

Vv.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

PETITION FOR WRIT OF CERTIORARI

Jay Lindsey Cohen

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel of Record

Ormond R. Fodrea

Major, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

Air Force Legal Services Agency

Appellate Defense Division

112 Luke Avenue, Suite 343

Bolling AFB, DC 20332-8000

202-767-1562

July 1996

QUESTION PRESENTED

Whether the United States Court of Appeals for the

Armed Forces erred when it found that the trial judge’s

abuse of discretion in excluding defense expert psychi-

atric testimony, offered to support a defense of mistaken

identity in a case where an arguably suggestive 13 year

old child was the victim and only witness to the

attempted kidnapping and accompanying offenses, was

harmless beyond a reasonable doubt.

TABLE OF CONTENTS

Page

Opinions Below. + v-5.0ki scavccessencdnbces eceien 1

FUT ERIONN oo 5 cin Hs Ka Rd aS DES ek te bas 2

Constitutional Provisions Involved .............. 2

Statement of the Cane 00530. ee cia aks 2

Reason for Granting the Writ................44. ii

The trial judge’s abuse of discretion in exclud-

ing crucial portions of the defense expert’s

testimony prevented the petitioner from fully

presenting his mistaken identity defense thus

violating his basic Constitutional right to pre-

sent material and favorable evidence.

Comelasit iii Fc ev nnd vie pee ee Eee 8

Appendix A (Opinion of the United States Court of

Appeals for the Armed Forces) ................. la

Appendix B (Opinion of the United States Air Force

Court of Criminal Appeals)............c.ceeee0- lb

TABLE OF AUTHORITIES

Constitutional Provisions:

Due Process Clause, Fifth Amendment to the

United States Constitution................... 2

Supreme Court Cases:

Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646

(1968): 3.43 sens scene eeweeas eee eee 5

ii

United States v. Agurs, 427 U.S. 97, 112-113, 96 S.

Ct. 2392, 2401-2402, 49 L.Ed.2d>342 (1971)...

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

858, 873, 102 S.Ct. 3440, 3449, 73 L.Ed.2d

I 6 ik he ee i a sek ew so

Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct.

1920, 1923, 18 L.Ed.2d 1019 (1967) ..........

Federal Statutes:

ili

5

IN THE

Supreme Court of the United States

OcTOBER TERM, 1995

No.

MASTER SERGEANT FERNANDO GARCIA,

Petitioner

Vv.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI

To THE UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

PETITION FOR WRIT OF CERTIORARI

The petitioner, Master Sergeant Fernando Garcia,

respectfully prays that a writ of certiorari issue to

review the order and judgment of the United States

Court of Appeals for the Armed Forces entered in his

case on 17 April 1996.

OPINIONS BELOW

The order and judgment of the United States Court of

Appeals for the Armed Forces, reported at _M.J._

(1996), is located at Appendix A. The opinion of the

United States Air Force Court of Military Review,

reported at 40 M.J. 533, is located at Appendix B.

1

2

JURISDICTION

The final order of the United States Court of Appeals

for the Armed Forces was entered on 17 April 1996. The

jurisdiction of this Court is invoked under 28 U.S.C.

§1259(3)(West Supp. 1995) and 10 U.S.C. §867(a)(West

Supp. 1994).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment of the Constitution of

the United States provides in relevant part

that: No person shall .. . be deprived of life, lib-

erty, or property, without due process of law...

STATEMENT OF THE CASE

The petitioner was convicted of attempted kidnap-

ping, assault and battery of a minor, indecent liberties

with a minor, and communicating indecent language to a

minor in violation of 10 U.S.C. §§880, 928 & 934. He was

sentenced on 2 September 1992 to a dishonorable dis-

charge, confinement for two years and a reduction in

rank to the lowest enlisted grade (E-1).

The allegations arose out of an incident that occurred

in Wichita Falls, Texas on 6 March 1992. Linnia Trujillo,

13, was walking home from school when she was passed

by a small blue car. R 54. The driver, an adult male, blew

her a kiss. R 55. The car parked in an alley ahead of her

and when Linnia passed by, the driver asked her if she

needed a ride. She declined and kept walking. R 57. As

she passed the car, she looked inside and saw that the

driver had his penis in his hand. R 59. He told Linnia

“You know you want it. You’ll enjoy it.” He got out of

the car, grabbed Linnia by the neck and tried to force

al |

Dupe

3

her into the car saying “Now I’m going to have to play

rough.” She broke free and ran home. R 61.

She told her parents what had happened and her

father drove off in search of the small blue car she

described—what her father suggested to her must be a

Volkswagen “Bug.” R 61-63. While waiting for the police

in the front yard with her mother, Linnia saw what she

said was the same vehicle drive by her house. It was a

blue Volkswagen Bug. She hid behind her mother and

was unable to get a look at the driver. R 65.

When she was shown a photo lineup that included the

petitioner later that day, she was not able to pick him

out. At a physical lineup three months later, she picked

out both the petitioner and another man but apparently

was not positive. The two men she picked out were both

depicted in the photo array. One was petitioner. R 66,

345.

When initially asked to describe her assailant, she

said he was a short white male, possibly tanned, with

bushy, collar length dark hair. R 71-72. The appellant is

hispanic and, like all military members, always keeps his

hair cut short. Linnia wears glasses but did not have

them on at the time of the assault. R 92. Between a

quarter and half hour passed between the assault and

the time that the blue VW Bug drove by. It was during

this interval, a period during which she was extremely

frightened and upset, that Linnia’s parents were press-

ing her for details about her assailant. R 92-96. It was

just at this time that both parents, separately, saw the

petitioner driving through the neighborhood in his blue

VW Bug. R 115, 132.

The defense theory of the case was mistaken identifi-

cation based upon Linnia’s vulnerability and suggesta-

bility when confronted by authority figures. In other

4

words, that her testimony at trial identifying the appel-

lant and his car were the product of parents and police

attempting to get information from her that she did not

have.

At trial, the petitioner called Curtis Wills, PhD, a

licensed psychologist with board certifications in foren-

sic psychology and educational counseling, as an expert

on eye witness identification. R 461-462. He was offered

to testify about the stages of memory, the effect of

stress on these stages, the accuracy of recollection of

startling events, the effects of questioning by authority

figures, the phenomenon of insertion into the memory

by post-event questioning, the reliability of lineup pro-

cedures and the relation between the accuracy and con-

fidence of memory. R 461-475.

The trial judge limited Dr Wills testimony to the

effect of stress and questioning on memory. R 487. She

also greatly restricted defense counsel’s latitude in

exploring even the allowed areas, sue sponte cut off

defense counsel prematurely and even refused defense

counsel the opportunity to redirect the expert. R 492-

499. This prevented the defense from being able to

introduce the expert evidence to support much of the

defense theory of the case as outlined earlier by counsel.

R 461-475.

Both the Air Force Court of Criminal Appeals and the ©

Court of Appeals for the Armed Forces agreed that this

exclusion by the trial judge was abuse ef discretion but

that it did not rise to the level of Constitutional error.

THE TRIAL JUDGE’S ABUSE OF DISCRE-

TION IN EXCLUDING CRUCIAL POR-

TIONS OF THE DEFENSE EXPERT’S

TESTIMONY PREVENTED THE PETI-

TIONER FROM FULLY PRESENTING HIS

5

MISTAKEN IDENTITY DEFENSE THUS

VIOLATING HIS BASIC CONSTITU-

TIONAL RIGHT TO PRESENT MATERIAL

AND FAVORABLE EVIDENCE

The right to offer the testimony of witnesses .. .

is in plain terms the right to present the defen-

dant’s version of the facts as well as the prose-

cution’s to the jury so it may decide where the

truth lies. Just as an accused has the righ. to

confront the prosecution’s witnesses for the

purpose of challenging their testimony, he has

the right to present his own witnesses to estab-

- lish a defense. This right is a fundamental ele-

ment of due process of law.

Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920,

1923, 18 L.Ed.2d 1019 (1967). See also Taylor v. Illinois,

484 U.S. 400, 108 S.Ct. 646 (1988). This deprivation of

defense desired testimony rises to the level of a Due

Process violation if petitioner can make “some showing

that the evidence lost would be both material and favor-

able to the defense.” United States v. Valenzuela-

Bernal, 458 U.S. 858, 873, 102 S.Ct. 3440, 3449, 73

L.Ed.2d 1193 (1982).

The proper standard of materiality must reflect

our overriding concern with the justice of the

finding of guilt. Such a finding is permissible

only if supported by evidence establishing guilt

beyond a reasonable doubt. It necessarily fol-

lows that if the omitted evidence creates a rea-

sonable doubt that did not otherwise exist, con-

stitutional error has been committed. This

means the omission must be evaluated in the

context of the entire record. If there is no rea-

sonable doubt about guilt whether or not the

6

additional evidence is considered, there is no

justification for a new trial. On the other hand,

if the verdict is already of questionable valid-

ity, additional evidence of relatively minor

importance might be sufficient to create a rea-

sonable doubt.

United States v. Agurs, 427 U.S. 97, 112-113, 96 S.Ct.

2392, 2401-2402, 49 L.Ed.2d. 342 (1971).

The government has never contested that the evi-

dence in dispute was favorable to the defense. The cru-

cial question in the petitioner’s case is that excluded evi-

dence’s materiality. In other words, whether the addi-

tional evidence could have created a reasonable doubt as

to the petitioner’s guiit.

The evidence showed that the appellant owned a blue

VW Bug and that he drove through the victim’s neigh-

borhood within a half hour after the incident. The criti-

cal issue in the petitioner’s case was the 13 year old vic-

tim’s identification of the petitioner as the man who

committed the assault. Without it, all the government

could prove was that the petitioner had a car similar in

description to that of the assailant and that he drove

through the area not long after the assault.

The victim’s identification of her assailant was shaky

at best. When first questioned immediately after the

assault by her parents and then the police, important

authority figures to a traumatized 13 year old, her

description could have fit virtually any medium sized

hispanic or caucasion male. The notable detail was that

the assailant had dark, curly shoulder length hair—

clearly someone other than the petitioner, who, by law

had to maintain a short military hair cut. Nor was the

victim able to identify the petitioner as her assailant in a

photo-lineup. It was only months later that she tenta-

7

tively identified the petitioner and another in a physical

lineup—both of whom had photos in the photo lineup.

By the time of trial, however, she testified that the peti-

tioner was her assailant and that she was positive it was

his car she saw parked in the alley. Clearly, this crucial

improvement in recall was the product of a desire to

provide the information that her parents, police, Air

Force investigators, military prosecutors—all were

pressing her for during the preparation of the peti-

tioner’s prosecution. Thus, the petitioner’s ability to

fully show the pressures a traumatized 13 year old feels

to provide what all of the surrounding authority figures

so,earnestly seek from her, time after time, in their

efforts to bring the man who wrorged her to justice—

are critical to his case. That is exactly the area that the

military judge precluded the defense from fully explor-

ing with the psychological expert. That evidence was

not only material to the defense but was at the heart of

the whole defense case—it was critical.

8

CONCLUSION

As both the Air Force Court of Criminal Appeals and

the Court of Appeals for the Armed Forces found, the

trial judge abused her discretion in restricting the

defense expert’s testimony. The courts below erred,

however, when they found that this error did not

exclude evidence that was material to the defense.

Preventing the defense expert from informing the court

about the effects on a 13 year old traumatized child

given the circumstances she faced following the assault

and leading up to the trial destroyed the petitioner’s

chance to fully present his defense. This rises to the

level of Constitutional error.

Respectfully submitted,

Jay Lindsey Cohen

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel of Record

Ormond R. Fodrea

Major, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

Air Force Legal Services Agency

Appellate Defense Division

172 Luke Avenue, Suite 208

Bolling AFB, DC 20332-5113

202-767-1562

June 1996

APPENDICES

la

APPENDIX A

UNITED STATES, APPELLEE

Vv.

FERNANDO GARCIA, MASTER SERGEANT

U.S. AIR FoRCE, APPELLANT

No. 94-0953

CMR No. 30327

United States Court of Appeals for the Armed Forces

Argued October 3, 1995

Decided April 17, 1996

Counsel

For Appellant: Robert G. Estrada (argued); Colonel

Jay L. Cohen and Captain Richard D. Desmond (on

brief); Felicia Godwin.

For Appellee: Captain Deborah M. Carr (argued);

Colonel Jeffery T. Infelise (on brief); Lieutenant Colonel

Michael J. Breslin.

Military Judge: Mary M. Boone

Opinion of the Court

SULLIVAN, Judge:

Appellant was tried by a general court-martial com-

posed of officer and enlisted members! at Dyess Air

1See Part I, United States v. McElroy, 40 MJ 368, 370-71 (CMA

1994).

2a

Force Base, Texas, during August and September 1992.

Despite his pleas of not guilty, he stands guilty before

this Court of attempting to kidnap a 13-year-old female

and taking indecent liberties with her, in violation of

Articles 80 and 134, Uniform Code of Military Justice,

10 USC §§ 880 and 934, respectively. He was sentenced

to a bad-conduct discharge, 2 years’ confinement, total

forfeitures, and reduction to Airman Basic. On

December 23, 1992, the convening authority approved

this sentence. The Court of Military Review? affirmed

on April 29, 1994. 40 MJ 533.

On April 11, 1995, we granted review on the following

Issue raised by appellate defense counsel and an issue

modified by this Court:

I

WHETHER THE AIR FORCE COURT OF

MILITARY REVIEW ERRED IN APPLY-

ING AN INCORRECT STANDARD OF

REVIEW AND IN FAILING TO APPLY

THE CORRECT STANDARD OF CHAP-

MAN v. CALIFORNIA: WHETHER AP-

PELLANT WAS PREJUDICED BEYOND A

REASONABLE DOUBT BY AN ERROR OF

CONSTITUTIONAL MAGNITUDE.

II (modified)

WHETHER THE AIR FORCE COURT OF

MILITARY REVIEW WAS ERRONEOUS

IN RULING THE MILITARY JUDGE

ERRED IN EXCLUDING EXPERT EYE-

WITNESS TESTIMONY; AND IF THE

EXCLUSION WAS ERROR, WAS THE

2See 41 MJ 213, 229 n.* (1994).

3a

COURT OF MILITARY REVIEW ERRO-

NEOUS IN HOLDING IT HARMLESS.

On further consideration, this Court on May 17, 1995,

vacated the order dated April 11, 1995. On June 14,

1995, this Court again granted review of the two Issues

previously granted and specified an issue as follows:

WHETHER THIS COURT MAY CON-

SIDER, ON A PETITION FOR GRANT OF

REVIEW, THE CORRECTNESS OF THE

PORTION OF THE DECISION BY THE

COURT OF MILITARY REVIEW FAVOR-

, ABLE TO THE ACCUSED WHEN NO CER-

TIFICATE FOR REVIEW HAS BEEN

FILED RAISING THAT ISSUE.

We hold that any error committed by the military judge

in excluding the proferred defense evidence was, in light

of the entire record of trial, harmless beyond a reason-

able doubt. See United States v. Wilson, 20 MJ 31, 32

(CMA 1985) (harmless-beyond-a-reasonable-doubt

standard applied in abundance of caution).?

The following facts are set forth by the Court of

Military Review in its opinion:

On March 6, 1992, in Wichita Falls, Texas, a

man in a small car accosted LMJ, who was

walking home from school. After exposing him-

self and making indecent comments to her, he

jumped from the car and tried to force her into

it. Fortunately, she broke free and ran a short

distance to her home where she reported the

attack to her parents.

3In view of our resolution of this case, it is not necessary to answer

the specified issue.

4a

LMJ and her father, AJ, immediately went

looking for the attacker in the family car. LMJ

told AJ that the man drove a small blue car

with tinted windows and the word “BUG”

written in white across the windshield. She

added that the car was like the one they used

to own, which AJ recalled was a Volkswagen

“bug.” They were unsuccessful in their quick

search and returned home. Leaving LMJ to

await the police, AJ resumed the search. About

a block from his home, he saw a Volkswagen

that fit the description with a license plate

number that he recorded as “355 ONE.” He

saw the male driver but lost the trail when the

driver made a quick U-turn.

Back at home, LMJ and her mother, CSJ,

stood in the front yard waiting for the police

when LMJ saw a small blue Volkswagen with

tinted windows and the word “BUG” written in

white across the windshield drive by. LMJ told

CSJ, “Oh my gosh, Mom, he’s coming.” CSJ

saw the driver and wrote the license plate

number down as “355 ONE.” The male driver

waved and smiled as he drove by.

LMJ described her attacker for the police as

a short white male, possibly tanned, with

bushy, collar-length dark hair. Appellant is

Hispanic, wore a mustache at the time, and,

like most male military members, did not have

bushy hair. However, the police investigation

focused on appellant because he drove a small

blue Volkswagen “bug” with tinted windows,

the word “BUG” written in white across the

windshield, and license number “355 ONE.”

ES aN SRE MTN SE BIC TS I RE ONE RET ne A

5a

LMJ could not pick her attacker out of a

photo array which included appellant’s picture.

However, she picked both appellant and )

another male out of a subsequent physical |

lineup even though appellant had shaved his |

mustache after the photo array. LMJ’s parents |

also failed to pick appellant out of the photo |

array, but they recognized appellant at the |

lineup. However, the lineup deviated from |

standard investigative procedure because the |

investigators did not use the same individuals

from the photo array—only appellant and one

, other person LMJ picked from the lineup were

also pictured in the photo array.

At trial LMJ could not identify appellant as

her attacker. Her parents, on the other hand,

were certain appellant was the driver of the

Volkswagen they saw in the neighborhood. —

Appellant admitted he drove in LMJ’s neigh-

borhood on March 6th but denied committing

the offenses or trying to elude AJ. Appellant

also could not recall driving by LMJ’s house.

40 MJ at 534-35.

Sergeant Garcia’s defense at trial was one of mistaken

identity. To support this defense, he offered the testi-

mony of Dr. Curtis Wills, a board-certified forensic psy-

chologist and consultant to several law enforcement /

agencies, who was an expert in eyewitness identifica-

tion. In a session under Article 39(a), UCMJ, 10 USC §

839(a), conducted without members, the defense prof-

fered Dr. Wills’ testimony. Appellant in his final brief

notes the intended scope of direct examination, which he

proffered at the Article 39(a) session, as follows:

6a

The appellant proffered testimony from Dr.

Wills regarding the stages of memory, R. 465,

the effect of stress on these stages, R. 466, the

accuracy of recollection of startling events, R.

468, the effect of questioning by authority fig-

ures, R. 471, the phenomenon of insertion into

the memory by post-event questioning, R. 469,

the reliability of lineup procedures, R. 473, and

the correlation between the accuracy and confi-

dence of a memory, R. 475.

Final Brief at 8.

At trial Dr. Wills testified that stress has a negative

impact on the accuracy of eyewitness identification.

Moreover, the military judge allowed him to testify that

suggestive questioning can impact eyewitness identifi-

cation and that questioning by authority figures such as

parents can affect one’s responses. Relying on

Mil.R.Evid. 403 and 702, Manual for Courts-Martial,

United States, 1984, the judge did not allow the expert

to testify about the “inverse” relationship between con-

fidence and accuracy in identification and the theory of

memory transference and transposition. See Appendix.

Later, defense counsel made a motion for the judge to

recuse herself because of her rulings on defense evi-

dence. That motion was denied.

The Court of Military Review found the military

judge erred in excluding defense evidence in this case.

It then determined that appellant suffered no prejudice

from these erroneous rulings. Judge Pearson said:

PREJUDICE

Even though we determine the military judge

abused her discretion in excluding relevant

;

: ‘

ee

7a

portions of the expert’s testimony and restrict-

ing the rest, we do not grant relief unless we

find prejudice. Article 59(a), UCMJ, 10 USC §

859(a) (1988); Combs, 35 MJ at 827; United

States v. Sawyer, 32 MJ 917 (AFCMR 1991); see

United States v. Weeks, 20 MJ 22 (CMA 1985).

We do not find it here. |

In assessing prejudice from excluded expert

testimony, we believe the two most important

questions to answer are: (1) Was appellant able

to adequately present the issue to the mem-

bers in some other suitable form? and (2) Was

the Government’s case strong and conclusive

when weighed against the defense theory of

the case? See Weeks, 20 MJ at 25.

We start our review at defense counsel’s voir

dire. Defense counsel expertly questioned the

members extensively about identification evi-

dence, tailoring questions to the facts of the

case. For example, the members agreed “that

if somebody is stressed or frightened, their

memory and their perceptions may not be very

strong.” While voir dire questions and answers

aren’t evidence in the case, the questions and

answers show the members were amenable to

the defense theory of the case. In presenting

that theory, Dr. Wills did testify in general

terms about most of the areas in issue except

the suggestiveness of the lineup which counsel

fully explored through cross-examination of

the investigator who conducted it. In closing

argument, defense counsel honed the issue of

the reliability of the eyewitness’ identifications

for the members, including how LMJ and her

parents had improved on their identifications

a

Fe ON I ee ee a eS ee a

2 eh ae SL Ree SO Sy a ee ye i es eens erm ae on Bees te to,

8a

over time. Consequently, we conclude appellant

was able to adequately present the issue in

spite of the military judge’s ruling.

As for the quality of the Government’s case, we

find the evidence establishing appellant’s guilt

overwhelming. See Moore, 786 F.2d at 1313;

Smith, 736 F.2d at 1107-1108. In this regard,

we will not recount appellant’s testimony other

than to say he was his own worst enemy on the

witness stand. Appellant also made several

incriminating admissions to a Wichita Falls

detective during a telephone conversation and

to an Office of Special Investigations special

agent during an interview. He_told the detec-

tive, “nobody drives his Volkswagen but him,”

and appeared to. know facts about the incident

only the perpetrator would know. He admitted

to the agent that he “might have stopped and

talked to a girl” in LMJ’s neighborhood on the

date of the offenses, and he “stopped for

extended periods of time near [her] school.”

40 MJ at 538-39.

Appellant’s basic contention on this appeal is that the

Court of Military Review applied the wrong test for

determining whether error by the military judge in

excluding certain defense evidence was prejudicial. He

asserts that the appellate court below found an error of

constitutional magnitude in this case, i.e., a violation of

his due process right to present a defense under the

Fifth Amendment. He then argues that the court below

erred in applying the decision of this Court in United

States v. Weeks, 20 MJ at 25, to determine prejudice

arising from such a constitutional error. Finaliy, he con-

9a

tends that even if the fouuw-factow. test.6. Wrebieo*roi “idu-

ing prejudice is appropriate in constitutional error

cases, the Court of Military Review did not properly

apply all four factors of that test in his case.

We initially note that the Court of Military Review

did not hold that constitutional error occurred in this

case. See United States v. Lane, 474 U.S. 438, 446 n. 8 &

9 (1986). Instead, it held that the military judge vialated

several rules of evidence by restricting Doctor Wills’

expert testimony (i.e., Mil.R.Evid. 403 and 702-04). 40

MJ at 537-38. Then, it assessed the impact of the judge’s

errors in light of other evidence in this case and found

no prejudice. Jd. at 538-39. This is standard nonconstitu-

tional evidentiary analysis. Mil.R.Evid. 103(a); United

States v. Wimberly, 60 F.3d 281, 286 (7th Cir. 1995), cert.

denied, 116 S.Ct. 744 (1996); United States v. Hanson,

994 F.2d 403, 407 (7th Cir. 1993); United States v. Hogan,

886 F.2d 1497, 1512 (7th Cir. 1989); United States v.

Peak, 856 F.2d 825, 834-35 (7th Cir.), cert. denied, 488

U.S. 969 (1988). Accordingly, we reject appellant’s initial

assumption that the Court of Military Review found

constitutional error in this case.

We further hold that appellant was not denied his con-

stitutional right to present his defense by the military

judge’s evidentiary rulings limiting Dr. Wills’ testimony.

Appellant does not challenge the legitimacy of

Mil.R.Evid. 403 or 702, or the discretion they confer

upon a military judge to admit or exclude evidence. See

Rock v. Arkansas, 483 U.S. 44 (1987); Chambers v.

Mississippi, 410 U.S. 284 (1973); Washington v. Texas,

388 U.S. 14 (1967). Instead, he simply notes that the

Court of Military Review found that the military judge

abused her discretion in applying those rules to the

excluded portions of Dr. Wills’ testimony. See United

States v. Blum, 62 F.3d 63, 68 (2d Cir. 1995); United

NA Bi da ta Nee

ee ee ee Pe, ee

10a

States v. Stevens, 935 F.2d 1380, 1400-01 (8d Cir. 1991);

see also United States v. Abel, 469 U.S. 45, 55 (1984). It

is well established, however, that not every error in the

exclusion of defense evidence constitutes constitutional

error. See United Staies v. Cruz-Jiminez, 977 F.2d 95,

100 (3d Cir. 1992); Rosario v. Kuhlman, 839 F.2d 918,

924 (2d Cir. 1988); Flanders v. Meachum, 824 F.Supp.

290, 299 n.8 (D. Conn. 1993), rev’d on other grounds, 13

F.3d 600 (2d Cir. 1994). To establish constitutional error,

exclusion of material or vital defense evidence must

usually be shown.’ See Taylor v. Illinois, 484 U.S. 400,

409 (1988); United States v. Valenzuela-Bernal, 458 U.S.

858, 868-65 (1982); United States v. Robaina, 39 F.3d

858, 862 (8th Cir. 1994).

For several reasons, we conclude that the defense

was not denied material evidence in this case.

First, we note that Dr. Wills was allowed to testify in

support of the defense theory of misidentification. He

provided testimony to the members about the effect of

stress on memory and its suggestibility as induced by

questioning of authority figures such as parents.

Second, appellant’s cross-examination of a police offi-

cer revealed admittedly suggestive circumstances sur-

rounding the photograph spread and the subsequent in-

person lineup, both involving appellant. It sufficiently

allowed him to present a tainted-identification argument

to the members. Dr. Wills’ testimony on the theory of

transference and transposition was more theoretical and

general in nature, so it added little to the police officer’s

more practical concessions.

4Our case law indicates that exclusion of certain types of evidence,

i.e., defense character evidence (United States v. Gagan, 43 MJ 200,

203 (1995); United States v. Brown, 41 MJ 1, 4 (CMA 1994)) or vic-

tim-bias evidence (United States v. Bins, 43 MJ 79, 86 (1995)) can

usually be considered constitutional error.

lla

Third, the confidence-accuracy relationship testimony

of Doctor Wills did not have great value in this case. See

United States v. Holmes, 44 F.3d 1150, 1157 (2d Cir.

1995). The victim could not identify appellant as her

assailant from the photo spread, at the subsequent line-

up, or at trial. 40 MJ at 535. Moreover, her identification

of his car as the assailant’s car and his race as Spanish

could hardly be described as confident. She admitted

that her identification of her assailant’s car as a

Volkswagon came from her father. Moreover, her testi-

mony that she had previously said her assailant was

“like a Mexican” was contradicted by the arresting

police officer. Cf. United States v. Stephens, 935 F.2d at

1400 (witness identification at trial was exceedingly con-

fident). In these circumstances, we hold that there was

no reasonable likelihood that the excluded testimony of

Doctor Wills would change the result in this case. See

generally Kyles v. Whitney, 115 S.Ct. 1555, 1566 (1995)

(Material means “‘reasonable probability’ of a different

result.”); see also People v. Sanders, 905 P.2d 420, 443

(Cal. 1995).

We further hold that the appellate court below did not

err in affirming appellant’s case on the basis of the four-

pronged test for prejudice articulated in United States

v. Weeks, supra. That decision does not expressly state

whether its trial-impact factors are appropriate for

determining prejudice in cases involving errors of con-

stitutional magnitude or just nonconstitutional errors.

Cf. United States v. Vandelinder, 20 MJ 41, 47 (CMA

1985); United States v. Wilson, 20 MJ 31, 832 (CMA 1985)

(harmless-beyond-a-reasonable-doubt standard applied

in abundance of caution). In any event, evidentiary

error is normally tested to see if it resulted in actual

prejudice, 7.e., substantial and injurious effect or influ-

12a

ence in determining the jury’s verdict.® Likewise, a

determination of reversible constitutional error with

respect to an accused’s right to present a defense

requires at some point consideration of the entire record

of trial. See Delaware v. Van Arsdall, 475 U.S. 673, 684

(1986). Cf. Kyles v. Whitely, supra.® Accordingly, the

factors in Weeks, as considered and supplemented by

the Court of Military Review, were an appropriate and

necessary basis upon which to decide appellant’s case.

See United States v. Gagan, 43 MJ 200, 203 (1995); ef.

United States v. Levy-Cordero, 67 F.3d 1002, 1013-15

(1st Cir. 1995).

Finally, we hold that the Court of Military Review

fully and fairly applied the Weeks test in appellant’s

case. In United States v. Weeks, supra, then-Judge Cox

clearly articulated the factors to be considered in deter-

mining prejudice or harm from an erroneous ruling by

the judge excluding defense evidence. He said:

5An evidentiary error has not been considered harmless under this

standard if it excluded the only or primary evidence in support of or

in opposition to a claim or defense. See United States v. Cardascia,

951 F.2d 474, 489 (2d Cir. 1991); United States v. Peak, 856 F.2d 825,

834 (7th Cir.), cert. denied, 488 U.S. 969 (1988); United States v.

Kohan, 806 F.2d 18, 22 (2d Cir. 1986). For the reasons stated by the

Court of Military Review, 40 MJ 533, 538-39 (1994), we reject appel-

lant’s argument that error in the military judge’s evidentiary rul-

ings so prejudiced him in this case.

6Appellant suggests that a violation of his constitutional right to

present a defense should be determined without regard to “out-

come determinative” prejudice. See Delaware v. Van Arsdall, 475

U.S. 673, 680 (1986); Davis v. Alaska, 415 U.S. 308, 318 (1974). Even

if this approach is correct, this constitutional error would still be

tested for harmless error employing Weeks-like factors before a

conviction is reversed. United States v. Gagan, 43 MJ 200 (CMA

1995); see also Delaware v. Van Arsdall, supra at 684; United

States v. Owens, 789 F.2d 750, 761-62 (9th Cir. 1986), rev’d on other

arounds, 484 U.S. 554 (1988); United States v. Cerro, 775 F.2d 908,

915-16 (7th Cir. 1985).

13a

We now adopt the following four-pronged

analysis to test for prejudice:

First: Is the Government’s case against the

accused strong and conclusive? United States

v. Lewis, 482 F.2d 632, 644 (D.C. Cir. 1973).

Second: Is the defense’s theory of the case

feeble or implausible? United States v. Lewis,

supra at 646.

Third: What is the materiality of the prof-

fered testimony’...

Fourth: What is the quality of the proffered

defense evidence and is there any substitute

for it in the record of trial?

20 MJ at 25 (footnote omitted). The opinion of the court

below contains a finding on each of these factors adverse

to appellant, although perhaps, out of order and in con-

junctive fashion. Moreover, even assuming constitu-

tional error occurred in this case, we are convinced that

the findings of the court below clearly demonstrate such

error was harmless beyond a reasonable doubt. See

United States v. Wilson, supra.

The decision of the United States Air Force Court of

Military Review is affirmed.

Chief Judge COX, Judges CRAWFORD and

GIERKE, and Senior Judge DARDEN concur.

l4a

APPENDIX

The military judge did not admit all of this evidence

from Doctor Wills. While the members were deliberat-

ing on sentence, she stated her reasoning in limiting his

testimony, as follows:

I wanted to put on the record the reasons and

some of the findings that I made factually from

my rulings regarding his testimony.

First I’d note, of course, that Military Rule of

Evidence 702 provides that if scientific, techni-

cal, or specialized knowledge will assist the

trier of fact to understand the evidence or

determine a fact in issue, then you can allow

expert testimony. Of course, there’s several

questions. First, is the testimony helpful to the

members. And then always you have the issue

of is the testimony relevant. And I looked at

both of those. J determined that the expert tes-

timony regarding the effects of stress and the

general principles of how perceptions are

acquired, stored, and retrieved were relevant

regarding eyewitness identification in this

case. However, I felt the relevance was very

limited in that I would restrict the testimony

beyond those areas and that I would restrict it

in those areas in a very limited manner to

avoid some factors in balancing using Military

Rule of Evidence 403. And I’m going to go over

those factors.

So initially I did determine that on a limited

basis it was relevant, balancing it with the con-

ditions that are talked about in Rule 403, the

dangers of unfair prejudice, confusion of the

issues, misleading of the members, or by con-

15a

siderations of undue delay, waste of time, or

needless presentation of cumulative evidence.

Clearly determining the credibility or believ-

ability of each witness is within the sole

province of the court members. The ability of

each witness to observe and recall what they

observed is amply presented by examination or

cross-examination of the witnesses. This is

true regarding all of the witnesses that we’ve

heard in this case and in particular regarding

my exclusion of Dr. Wills’ testimony regarding

the photo and physical lineups and his testi-

‘mony regarding suggestibility there. I find that

counsel for both the Government and defense

had the opportunity to thoroughly examine and

cross-examine the testimony of the police offi-

cers who presented the photo lineup to the var-

ious witnesses and how she picked those and

how she presented that and, as well, the testi-

mony of the OSI agent who conducted the per-

sonal lineups in this case. And that testimony

included how he selected the members to be

included, what steps he took to avoid possible

suggestibility, and, on cross-examination, the

counsel went into what the Air Force regula-

tion provides regarding such and the questions

regarding its suggestibility and why one

shouldn’t necessarily do a photo lineup as well

as in-person lineup. So all those areas were

covered by the cross-examination and exami-

nation of the special agent.

Now although Dr. Wills read and he testified in

the 39(a) session, I would not allow him to tes-

tify in the hearing in front of the members—

read the OSI report and police reports, those

Pa i i la dh cic

Pd Babee Menarini Rodos hats aig be ie

16a

reports don’t fully detail the dynamics of what

occurred during those presentations. The mem-

bers had the photo lineup and they had it, of

course, during their findings deliberations as

well, which is Prosecution Exhibit 6. And they

had the photos from the physical lineup. Those

are Prosecution Exhibits 7 and 8. They had

those as evidence to observe for themselves

any suggestibility, as well as they were able to

observe the witnesses who talked about what

occurred during those lineups. As factfinders,

that is clearly their duty to determine any sug-

gestibility regarding those. Dr. Wills’ testi-

mony in this area would therefore not only be

cumulative, but confusing and misleading,

therefore not admissible, since it is their duty

as factfinders to look at the credibility of the

witnesses and determine their credibility. And

they could themselves observe the suggestibil-

ity of any photos or the lineups. Therefore that

was in their province as factfinders and Dr.

Wills’ testimony would therefore invade their

province.

Dr. Wills’ expert testimony that there is an

inverse correlation between the certainty of an

eyewitness identification and its accuracy

would also create a substantial danger of

undue prejudice and confusion and have lim-

ited probative value. In examining—when you

examine the credibility of witness instruction

regarding eyewitness identification, it clearly

instructs the members in part—and I’m going

to read part of that—whether the witness had

an adequate opportunity to observe the

offender at the time of the offense will be

17a

affected by such matters as how long or short a

time was available, how far or close the witness

was, how good were lighting conditions,

whether the witness had an occasion to see or

know the person in the past. Such a thesis by

Dr. Wills of this inverse correlation would only

add confusion and be misleading to this instruc-

tion. The instruction clearly tells the members

what facts or evidence they should consider in

determining the credibility or believability of

eyewitness identification and his testimony

would not take into consideration these

- instructions and matters. I would also note—

and I have examined the cases that the

Government cited so I won’t recite them. I did

examine U.S. v. Hicks [,7 MJ 561], which is the

only military justice case I could find and I

believe that is all counsel could find as well.

And in there it noted—and that was a decision

and a case that excluded all of the expert testi-

mony. And it talks about Rules 702 and 403 and

the balancing that the judge did in that case. It

talked about the testimony of the expert would

invade the province of the jury and would cre-

ate a substantial danger of undue prejudice and

confusion because of its aura of special reliabil-

ity and trustworthiness and it would have lim-

ited probative value, directed as it is to the

expert’s thesis rather than the actual eyewit-

ness accounts. And in this case I would concur

and my reasoning would be the same regard-

ing that testimony as to his thesis of this

inverse correlation. The limited evidence that I

am allowing or did allow, since I’m adding and

expanding and explaining my findings, but at

the time I was going to allow Dr. Wills to tes-

18a

tify regarding eyewitness identification to suf-

ficiently educate the members in the possible

pitfalls of eyewitness identification and the

effects that such stress has on such identifica-

tion. And by limiting it, they get that general

background information, they’re educated, and

then they get to evaluate the evidence—the

eyewitness evidence or testimony, the testi-

mony of the officers, as well, who were present

during any lineups, photo or otherwise. And

they can examine all of those witnesses to

determine their credibility, suggestibility, and

the believability in this case. Additionally, I

would note that the Government was not noti-

fied of this expert witness until the first day of

trial, and he was not available for them to

interview until the next morning—early on

Thursday morning. And I also considered that

and that in terms of proceeding with the case

that we’d started with members and the diffi-

culty it might be for the Government to obtain

their own expert. I considered all of that.

However, that was not a major consideration,

although I believe I’ve clearly outlined the fac-

tual basis for it. I did consider that. And, again,

I noted that I had reviewed the cases. And

that’s the basis upon which I made my decision.

(Emphasis added.)

lb

APPENDIX B

UNITED STATES AIR FORCE COURT OF

MILITARY REVIEW

UNITED STATES

v.

Master Sergeant FERNANDO GARCIA,

F'R457-92-4510

UNITED STATES AIR FORCE

ACM 30327

29 APRIL 1994

ce © Rie

Sentence adjudged 2 September 1992 by GCM

convened at Dyess Air Force Base, Texas.

Military Judge: Mary M. Boone.

Approved sentence: Bad-conduct discharge,

confinement for 2 years, forfeiture of all pay

and allowances, and reduction to E-1.

Appellate Counsel for Appellant: Robert G.

Estrada, Esq. (argued), Colonel Terry J.

Woodhouse, Colonel Jay L. Cohen, Lieutenant

Colonel Frank J. Spinner, Captain Ursula P.

Moul, and Felicia Godwin, Esq.

Appellate Counsel for the United States: Major

Barnard N. Madsen (argued), Colonel Jeffery

T. Infelise, Lieutenant Colonel Thomas E.

Schlegel, and Captain Richard D. Desmond.

2b

Before

HEIMBURG, PEARSON, and SCHREIER

Appellate Military Judges

OPINION OF THE COURT

PEARSON, Judge:

The key issue in this case is whether an accused in a

court-martial may present expert testimony to attack

the reliability of an eyewitness identification. We hold

such testimony is admissible when the accuracy of an

eyewitness identification is a critical issue in the case

and the expert will testify on specific psychological fac-

tors which could have affected the accuracy of the iden-

tification. We determine the military judge abused her

discretion in excluding the expert testimony here, but

affirm the conviction because appellant was not preju-

diced by the error.

FACTS

A general court-martial sitting with officer and

enlisted members convicted Master Sergeant Garcia of

attempting to kidnap a 13-year-old female, LMJ, and

taking indecent liberties with her by communicating

indecent language and exposing his penis. The members

sentenced Sergeant Garcia to a bad-conduct discharge, 2

years confinement, forfeiture of all pay and allowances,

and reduction to E-1, which the convening authority

approved as adjudged.

On March 6, 1992, in Wichita Falls, Kansas, a man in a

small car accosted LMJ, who was walking home from

3b

school. After exposing himself and making indecent

comments to her, he jumped from the car and tried to

force her into it. Fortunately, she broke free and ran a

short distance to her home where she reported the

attack to her parents.

LMJ and her father, AJ, immediately went looking for

the attacker in the family car. LMJ told AJ that the man

drove a small blue car with tinted windows and the

word “BUG” written in white across the windshield.

She added that the car was like the one they used to

own, which AJ recalled was a Volkswagen “bug.” They

were unsuccessful in their quick search and returned

home. Leaving LMJ to await the police, AJ resumed the

search. About a block from his home, he saw a

Volkswagen that fit the description with a license plate

number that he recorded as “355 ONE.” He saw the

male driver but lost the trail when the driver made a

quick U-turn.

Back at home, LMJ and her mother, CSJ, stood in the

front yard waiting for the police when LMJ saw a small

blue Volkswagen with tinted windows and the word

“BUG” written in white across the windshield drive by.

LMJ told CSJ, “Oh my gosh, Mom, he’s coming.” CSJ

saw the driver and wrote the license plate number down

as “355 ONE.” The male driver waved and smiled as he

drove by.

LMJ described her attacker for the police as a short

white male, possibly tanned, with bushy, collar-length

dark hair. Appellant is Hispanic, wore a mustache at the

time, and, like most male military members, did not

have bushy hair. However, the police investigation

focused on appellant because he drove a small blue

Volkswagen “bug” with tinted windows, the word

“BUG” written in white across the windshield, and

4b

license number “355 DNE.”

LMJ could not pick her attacker out of a photo array

which included appellant’s picture. However, she picked

both appellant and another male out of a subsequent

physical lineup even though appellant had shaved his

mustache after the photo array. LMJ’s parents also

failed to pick appellant out of the photo array, but they

recognized appellant at the lineup. However, the lineup

deviated from standard investigative procedure because

the investigators did not use the same individuals from

the photo array—only appellant and the one other per-

son LMJ picked from the lineup were also pictured in

the photo array.

At trial, LMJ could not identify appellant as her

attacker. Her parents, on the other hand, were certa:n

appellant was the driver of the Volkswagen they saw in

the neighborhood.

Appellant admitted he drove in LMJ’s neighborhood

on March 6th but denied committing the offenses or try-

ing to elude AJ. Appellant also could not recall driving

by LMJ’s house.

ADMISSIBILITY OF EXPERT TESTIMONY

The P 1 Testi

Appellant’s theory at trial was mistaken identity. He

tendered Dr. Curtis Wills, a board certified forensic psy-

chologist and consultant to several law enforcement

agencies, as an expert in eyewitness identification to

attack the witnesses’ identifications of himself and his

car. Dr. Wills proposed to testify regarding (1) the nega-

tive effect of startling events and stress on memory, (2)

the suggestiveness of post-event questioning by author-

5b

ity figures such as parents and police, (3) the suggestive-

ness of lineups following photo arrays where the individ-

uals presented to the witness change, and (4) the

inverse correlation between a witness’ growing confi-

dence in an identification and its actual accuracy.

The Military Judge's Rul

In a hearing conducted out of the presence of the

court members pursuant to Article 39, UCMJ, 10 U.S.C.

§ 839 (1988), Dr. Wills proffered his testimony. Over

strenuous prosecution objection, the military judge

accepted Dr. Wills as an expert in “forensic psychology

and eyewitness identification.” The military judge found

Dr. Wills’ concepts were “probably somewhat accepted.”

However, relying on United States v. Hicks, 7 M.J. 561

(A.C.M.R.), pet. denied, 7 M.J. 249 (1979), the military

judge determined that expert testimony on eyewitness

identification was not generally admissible in military

trials. Consequently, the judge severely restricted Dr.

Wills’ testimony before the members.

The military judge allowed Dr. Wills to testify to the

members in general terms about the negative effect that

startling events, stress, and post-event questioning

have on the accuracy of a witness’ memory. She did not

let him testify about the suggestibility of the lineup, tai-

lor his testimony to the specifics of the case, or render

an opinion on how the various psychological factors

affected the accuracy of LMJ’s, AJ’s, and CSJ’s identifi-

cations. Moreover, she swa sponte cut off direct exami-

nation at times, curtly refused to allow defense counsel

to redirect after cross-examination, and didn’t give the

members an opportunity to ask questions.

6b

In restricting Dr. Wills’ testimony, the military judge

stated the evidence’s probative value under Military

Rule of Evidence (Rule) 403 was substantially out-

weighed by the danger of unfair prejudice, confusion of

the issues, misleading of the members, undue delay,

waste of time, and needless presentation of cumulative

evidence.

EDS Sere engages Identificati

Hicks is the only published military case dealing with

expert testimony attacking eyewitness identifications.

In Hicks, the appellant argued the military judge erred

in denying his motion to produce a psychologist at gov-

ernment expense who would testify about the unrelia-

bility of eyewitness identifications made under stress

and the suggestiveness of a lineup. The Army Court of

Military Review affirmed the conviction, holding the

military judge did not abuse his discretion in denying

the motion. In ruling, the Court adopted the four-prong

test from the “leading Federal case” of United States v.

Amaral, 488 F.2d 1148 (9th Cir. 1973). For expert testi-

mony to be admissible, the proponent must establish: (1)

a qualified expert, (2) a proper subject, (3) conformity to

a generally accepted explanatory theory, and (4) proba-

tive value compared to prejudicial effect. Hicks, 7 M.J.

at 563.

While upholding the military judge’s ruling, the Hicks

court did not fully explain how the expert testimony

failed any prong of the test. In any event, the third

prong of the Hicks/Amaral test for expert testimony,

conformity to a generally accepted explanatory theory

aa outlined in Frye v. United States, 293 F. 1013 (D.C.

Cir. 1923), is no longer valid in military criminal trials,

7b

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

(applying Mill R. Evid. 702), or federal trials. Daubert v.

Merrell Dow Pharmaceuticals, Inc., _ U.S. _, 118 S. Ct.

2786, 125 L. Ed. 2d (1993) (applying Fed. R. Evid. 702);

United States v. Almador-Galvan, 9 F.3d 1414, 1418 (9th

Cir. 1993) (applying Daubert in rejecting Amaral test).

Instead, general acceptance is merely a factor to be con-

sidered in weighing whether expert testimony is both

relevant and reliable enough for admission. Daubert, 113

S. Ct. at 2795; Gipson, 24 M.J. at 251.

Before Daubert, the federal circuits split on whether

to admit expert testimony offered by the defense to

attack the reliability of an eyewitness identification. The

circuits that excluded it determined the testimony (1)

did not meet the Frye standard of general acceptance,

(2) invaded the province of the jury to determine credi-

bility of witnesses, (3) was not helpful because jurors

could use their common sense and experience to deter-

mine reliability of eyewitness testimony, (4) was only

offered in general terms without tying the expert opin-

ion to the facts of the case, or (5) would confuse the jury

as eyewitness identification was not a central issue in

the case. For a discussion of the various circuit posi-

tions, see United States v. Hudson, 884 F.2d 1016 (7th

Cir. 1989) (excluding), cert. denied, 496 U.S. 939 (1990)

and United States v. Moore, 786 F.2d 1308 (5th Cir. 1986)

(admitting), reh’g denied, 791 F.2d 928 (5th Cir. 1986) (en

banc).

In our view, the modern trend is to admit expert tes-

timony on the impact psychological factors such as

stress, suggestibility, feedback, and confidence have on

the reliability of an eyewitness identification when the

identification is a critical issue in the case. Moreover, in

military trials, judges should “view liberally the ques-

tion of whether the expert’s testimony may assist the

8b

trier of fact.” United States v. Combs, 35 M.J. 820, 826

(A.F.C.M.R. 1992) (citations omitted). And, “[iJf any-

thing, in marginal cases, due process might make the

road a tad wider on the defense’s side than on the

Government’s.” Gipson 24 M.J. at 252; see Chambers v.

Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d

297 (1973).

We do not find the defense proffered expert psycho-

logical testimony on the unreliability of the eyewitness

identifications in this case any more, or less, mystical

than already sanctioned Government expert testimony

on rape trauma syndrome, e.g., United States v. Carter,

26 M.J. 428 (C.M.A. 1988), and child abuse accommoda-

tion syndrome, e.g., United States v. Suarez, 35 M.J. 374

(C.M.A. 1992). We find that each of the areas Dr. Wills

proposed to testify about, particularly the impact of

stress on accuracy and the relationship between a wit-

ness’ confidence in an identification and its accuracy,

went beyond what an average court member might

know as a matter of common knowledge. Some of his

principles were counter-intuitive and flew in the face of

common beliefs. See United States v. Downing, 753 F.2d

1224, 1230-1232 (3d Cir. 1985) (quoted in Daubert, 113 S.

Ct. at 2797; and Gipson, 24 M.J. at 251); Moore, 786 F.2d

at 1312-13; United States v. Smith, 736 F.2d 1103, 1106

(6th Cir. 1984) (observation in first lineup may “uncon-

sciously transfer” to second lineup and result in incor-

rect identification), cert. denied, 469 U.S. 868 (1984).

Of course, the proponent of expert testimony must

always demonstrate (1) a qualified expert, (2) a proper

subject matter, (3) a proper basis for the expert’s opin-

ion, (4) the relevance of the testimony to the particular

case, (5) the reliability of the evidence, and (6) whether

the probative value of the testimony is subatantially

outweighed by the considerations outlined in Rule 403,

9b

such as confusion of the issues. United States v. Houser,

36 M.J. 392, 397 (C.M.A. 1993), cert. denied, __U.S.__,

114 S. Ct. 182 (1993). We merely hold that expert testi-

mony offered on the reliability of an eyewitness identifi-

cation ia a proper subject matter for expert opinion and

is sufficiently reliable for admission in military criminal

trials. As to relevancy, we also hold that the proponent

of the expert testimony must show how it is relevant to

both the specific eyewitness identification at issue and a

disputed factual issue in the case. We leave it to the trial

judge to determine in any particular case whether the

proponent puts the ball between the goal posts, which

brings us to the judge’s ruling in this case.

ABUSE OF DISCRETION STANDARD

On appeal, we review a military judge’s decision to

admit or exclude expert testimony using an abuse of dis-

cretion standard. Houser, 36 M.J. at 397. Even if expert

testimony is otherwise admissible under Rule 702, the

military judge may still exclude it after performing the

balancing test of Rule 403, which we also test for an

abuse of discretion. Howser, 36 M.J. at 400; United

States v. Brooks, 22 M.J. 441 (C.M.A. 1986).

While the military judge did not have the benefit of

Daubert or Almador-Galvan, she did have Gipson,

Downing, and Rules 702, 704. In this case we find appel-

lant established: (1) Dr. Wills was an expert in the areas

in question, (2) his testimony was on a proper subject

matter, (3) he had a proper basis for his opinion, (4) his

testimony was relevant to a critical issue in the case, (5)

his testimony was sufficiently reliable for admission, and

(6) the probative value of the testimony was not sub-

stantially outweighed by other considerations outlined

in Rule 403. We determine the military judge abused

10b

her discretion in excluding the proffered expert testi-

mony as the following key factors she highlighted for

excluding the evidence are not supported in fact or law:

1. Dr. Wills’ testimony invaded the province of the

member i redibili i

Under Rule 704, an expert opinion is not inadmissible

because it embraces an ultimate issue in the case.

Consequently, invading the province of the members by

giving them information on which to make a credibility

call is not a valid basis for excluding the testimony. See

Downing, 753 F.2d at 1229. Dr. Wills was not going to

testify as a human lie detector. See United States v. Hill-

Dunning, 26 M.J. 260 (C.M A. 1988), cert. denied, 488

U.S. 967 (1988).

2. Dr. Wills only read the investigativ n th

case; he did not interview or test the victim. An expert

need not interview a victim, or any other witness,

before rendering an expert opinion about a victim; the

expert may base an opinion on an investigative report,

statements of witnesses, or even listening to trial testi-

mony. Mil. R. Evid. 703; Howser, 36 M.J. at 399.

h f i iv nabl i

expert to the Government. While there is some support

in the federal circuits for excluding expert testimony

when lack of reasonable notice prejudices the other

party, see, e.g., United States v. Dowling, 855 F.2d 114,

118 (3d Cir. 1988), aff’d on other grounds, 493 U.S. 342

(1990), the Government did not offer any prejudice for

the military judge to factor into her ruling. The military

judge apparently found prejudice swa sponte without

elaborating on how it occurred. In contrast to her ruling,

we note the prosecutor sat quietly when first alerted to

the possibility of Dr. Wills’ testimony during defense

voir dire on day one of this week long trial.

dure. In this case, where the alleged victim can’t iden-

tify her attacker at trial and the other eyewitnesses

offer identifications made during fleeting casual obser-

vations, we fail to see how the only defense evidence

directly attacking the Government’s circumstantial

identification evidence, other than the appellant’s broad

denial, could ever be a waste of time, too confusing, or

cumulative. See Mil. R. Evid. 403; Downing, 753 F.2d at

1243. As opposed to the trial judge, we see that expert

testimony has a proper purpose in attacking precon-

ceived ideas and beliefs even those ideas and beliefs

held by the court, and, at tirnes, our “whole system.”

“The ‘dangers inhering in eyewitness identification,’

particularly of a stranger encountered under stressful

conditions, have been recognized by the courts and the

object of much comment.” United States v. McLaurin,

22\M.J. 310, 312 (C.M.A. 1986) (citations omitted).

icti X i imon

Even those courts which completely excluded the

expert testimony recognized that the expert should only

present testimony tailored to the facts of the case and

not generalized testimony. See, e.g., United States v.

Fosher, 590 F.2d 381 (1st Cir. 1979).

12b

PREJUDICE

Even though we determine the military judge abused

her discretion in excluding relevant portions of the

expert’s testimony and restricting the rest, we do not

grant relief unless we find prejudice. Article 59(a),

UCMJ, 10 U.S.C. § 859(a) (1988); Combs, 35 M.J. at 827;

United States v. Sawyer, 32 M.J. 917 (A.F.C.M.R. 1991);

see United States v. Weeks, 20 M.J. 22 (C.M.A. 1985). We

do not find it here.

In assessing prejudice from excluded expert testi-

mony, we believe the two most important questions to

answer are: (1) Was appellant abie to adequately pre-

sent the issue to the members in some other suitable

form? and (2) Was the Government’s case strong and

conclusive when weighed against the defense theory of

the case? See Weeks, 20 M.J. at 25.

We start our review at defense counsel’s voir dire.

Defense counsel expertly questioned the members

extensively about identification evidence, tailoring ques-

tions to the facts of the case. For example, the members

agreed “that if somebody is stressed or frightened, their

memory and their perceptions may not be very strong.”

While voir dire questions and answers aren’t evidence in

the case, the questions and answers show the members

were amenable to the defense theory of the case. In pre-

senting that theory, Dr. Wills did testify in general

terms about most of the areas in issue except the sug-

gestiveness of the lineup which counsel fully explored

through cross-examination of the investigator who con-

ducted it. In closing argument, defense counsel honed

the issue of the reliability of the eyewitness’ identifica-

tions for the members, including how LMJ and her par-

ents had improved on their identifications over time.

Consequently, we conclude appellant was able to ade-

13b

quately present the issue in spite of the military judge’s

ruling.

As for the quality of the Government’s case, we find

the evidence establishing appellant’s guilt overwhelm-

ing. See Moore, 786 F.2d at 1313; Smith, 736 F.2d at

1107-1108. In this regard, we will not recount appellant’s

testimony other than to say he was his own worst

enemy on the witness stand. Appellant also made sev-

eral incriminating admissions to a Wichita Falls detec-

tive during a telephone conversation and to an Office of

Special Investigations special agent during an inter-

view. He told the detective, “nobody drives his

Volkswagen but him,” and appeared to know facts about

the incident only the perpetrator would know. He

admitted to the agent that he “might have stopped and

talked to a girl” in LMJ’s neighborhood on the date of

the offenses, and he “stopped for extended periods of

time near [her] school ”

REMAINING ISSUES

We resolve the remaining assigned errors adversely

to appellant, including the legal and factual sufficiency

of the evidence, United States v. Turner, 25 M.J. 24

(C.M.A. 1987), and the appropriateness of the sentence,

United States v. Healy, 26 M.J. 394 (C.M.A. 1988).

Accordingly, the findings and sentence are

AFFIRMED.

Senior Judge HEIMBURG and Judge SCHREIER concur.

14b

ALVIN J. STRIBLIN

Technical Sergeant, USAF

Chief Court Administrator, AFCMR