Petition for Writ of Certiorari — Stephens v. United States (No. 08-1514)

” Supreme Court, U.S.

0 FILED

No.08- 08151 4 JUN &- 2809

7. Tic Vers

IN THE Wiliam K. Suter, Clerk

Supreme Court of the Gnited States

MARCUS W. STEPHENS,

Staff Sergeant, United States Air Force,

Petitioner,

W.

UNITED STATES OF AMERICA

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of

Appeals

for the Armed Forces

PETITION FOR A WRIT OF CERTIORARI

Dwight H. Sullivan

Counsel of Record

Tiffany M. Wagner

Captain, U.S. Air Force

Air Force Appellate

Defense Division

112 Luke Avenue

Suite 343

Bolling Air Force Base

Washington, D.C. 20032

(202)767-1562

LEGAL PRINTERS LLC, Washington DC e 202-747-2400 e legalprinters.com

l

QUESTION FRESENTED

May a criminal defendant be sentenced more

harshly due to the emotional stress that his accuser

experienced as a result of the defendant exercising

his constitutional rights to plead not guilty and to

confront his accuser?

ill

TABLE OF CONTENTS

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OPINIONS BELOW..................... eR NP rT ne 1

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CONSTITUTIONAL PROVISIONS INVOLVED ...... 1.

Be ee I fi vcs ccc a ntnk cert ccbdicenssanccantacasniastoiepikasn stated: 2

REASONS FOR GRANTING THE PETITION ......... 7

A. Certiorari is appropriate to resolve a_ split

among the federal courts of appeals and

between a federal court of appeals and state

supreme courts over whether a_ criminal

defendant’s exercise of constitutionally

guaranteed procedural rights may be considered

to the defendant’s detriment at trial .................... 8

B. Petitioner was prejudiced by the trial judge’s

ruling, which allowed Petitioner to be sentenced

more harshly because he exercised his

constitutionally protected rights to plead not

guilty and cross-examine his accuser ................. 10

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Pc IRE ORO Te tect REIN MERTEN la

Court of Appeals for the Armed Forces

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Court of Appeals for the Armed Forces

UI isha atals becuse esc yh ae Adee a en ita ede dace 12a

Air Force Court of Criminal Appeals

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TABLE OF AUTHORITIES

Cases

Burns v. Gammon, 260 F.3d 893 (8th Cir.

«FRR RE SGA RE PRR a in Aa kN 6, 8, 11

Bushnell v. State, 637 P.2d 529 (Nev. 1981).............. 9

Cresci v. State, 278 N.W.2d 850 (Wis. 1979) ............. 9

Grifiin v. California, 380 U.S. 609 (1965) .......... 10, 12

United States v. Carr, 25 M.J. 637 (A.C.M.R.

I Seamer eT Pc elt Rc pe eS SLRFL OAR EE age 6

United States v. Farinella, 558 F.3d 695 (7th

ce, ERRAIME AMA ites eer me aici al ily Bete ae nen 8, 12

United States v. Holt, 33 M.J. 400 (C.M.A.

AA SE ei ROP RCRA cans COGr AMO? WE aE Aen eae USO ree MRR? i3

United States v. Jackson, 390 U.S. 609 (1965)........ 10

United States v. Jacoby, 11 C.M.A. 428, 29

we eee ee SPER AER AE ERNE EO! 10

United States v. Johnson, 1 M.J. 213 (C.M.A.

RRR ERR anaes oe sient aera tee aca lene en EN NS RS NY? 10

United States v. Mobley, 31 M.2. 273 (C.M.A.

et) Ora ee Ce ese ee a 11

United States v. Taylor, 54 F.3d 967 (1st Cir.

1995)

Vv

Constitution

U.S. Const:

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(ks SE RD te Po ROS ee poe RM 10, 31.33

Statutes and Rules

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

801 et seg.:

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1

PETITION FOR A WRIT OF CERTIORARI

Staff Sergeant Marcus W. Stephens, United

States Air Force, respectfully petitions for a writ of

certiorari to review the judgment of the United

States Court of Appeals for the Armed Forces in this

case.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Armed Forces (App., infra, 1a-11la) is reported

at 67 M.J. 233. The opinion of the United States Air

Force Court of Criminal Appeals (App., infra, 14a-

35a) is reported at 66 M.J. 520.

JURISDICTION

The Court of Appeals for the Armed Forces

(CAAF) granted Appellant’s petition for review on

October 29, 2008. (App., infra, 12a°18a.) The

CAAF’s judgment was entered on March 12, 2009.

The jurisdiction of this Court is invoked under 28

U.S.C. 1259(3).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United States

Constitution provides in part that “[nJo person shall

be .. . deprived of life, liberty, or property, without

due process of law.” The Sixth Amendment to the

United States Constitution provides in part that

“filn all criminal prosecutions, the accused shall

enjoy the right .. . to be confronted with the

witnesses against him.”

2

STATEMENT

This case concerns the permissibility of a

criminal defendant’s exercise of constitutionally

guaranteed procedural rights being considered to the

defendant's detriment at trial. The opinion below

created a split among the United States courts of

appeals and between a federal court of appeals and

state supreme courts on this issue.

1. Petitioner, a staff sergeant in the United

States Air Force, was tried and convicted by a

general court-martial. He was arraigned on one

count of committing carnal knowledge with a girl

between the ages of 12 and 16, one count of sodomy,

and two counts of committing indecent acts upon a

girl between the ages of 12 and 16 in violation of 10

U.S.C. 920, 925, and 934. He pleaded not guilty to

all of the charges. The court-martial, which

consisted of a panel of six military officers, found

him guilty of attempted carnal knowledge with a girl

between the ages of 12 and 16, attempted sodomy

with a girl between the ages of 12 and 16, and one

count of committing indecent acts upon a girl

between the ages of 12 and 16. The court-martial’s

panel members sentenced Petitioner to be confined

for three years, to forfeit all of his pay and

allowances, to be reduced to the lowest enlisted

rank, and to be dishonorably discharged from the Air

Force. The commander of the Eighth Air Force

approved the sentence as adjudged.

2. All of the charges against Petitioner alleged

that he engaged in sexual misconduct with his

cousin by marriage, Miss BU. When the case was

tried, Miss BU was 14 years old. The prosecution

called Miss BU as its first witness. She testified

from 8:30 in the morning of Thursday, October 27,

3

2005, until 1:50 that afternoon, including more than

an hour of cross‘examination by Petitioner’s defense

counsel. Tr. at 483-706. Following redirect and

questioning by the panel members, she was also

subjected to recross-examination. Tr. at 702-04.

During both the cross- and redirect-examinations of

Miss BU, references were made to her cross-

examination by Petitioner’s counsel during a pretrial

proceeding called an Article 32 investigation. Tr. at

636, 693.

Miss BU’s testimony accounted for almost 75% of

the time devoted to the prosecution’s entire guilt-

phase case.

On the morning of Saturday, October 29, 2005,

the panel members found Petitioner guilty of some,

but not all, of the charges against him.

In the military justice system, when the

defendant elects to try guilt or innocence before a

panel of members, those same members also

sentence the defendant if the case results in a

conviction. The sentencing hearing is an adversary

proceeding during which each of the parties is

entitled to present evidence and confront the

opposing party’s evidence.

The prosecution did not call Miss BU as a

sentencing witness. The only time she testified

during the trial was as a prosecution guilt-phase

witness.

The prosecution began its sentencing case at 1:11

on the afternoon of Saturday, October 29, 2005—

almost 48 hours after Miss BU stepped down from

the stand. The prosecution’s first sentencing witness

was Miss BU’s father, Mr. Billy Jack Upchurch.

The prosecutor asked Mr. Upchurch to “tell us”

how “the crimes here have affected” his daughter.

Tr. at 1074. Mr. Upchurch answered by explaining

4

his daughter’s diminished interest in sports and

outdoor activities. Tr. at 1074-75.

The prosecutor then asked, “How about the effect

of this process, the investigation and her testifying

and what not, how has that impacted her and how

has it impacted you?” Tr. at 1075. Petitioner's

defense counsel objected on relevance grounds. /d.

As is common in military practice, the objection was

made and ruled upon in open court in front of the

panel members rather than in a sidebar conference.

The trial judge responded to the objection by ruling,

“Tl allow it, it goes to victim impact. I'll allow it, go

ahead.” Jd. Petitioner's defense counsel then

renewed his objection, arguing, “They are asking to

penalize the Defendant for invoking his right to have

a trial and the process involved with that.” Jd. The

trial judge responded, apparently speaking to the

prosecutor, “Well, I think you need to focus a little

bit, but the process is okay, what she has had to go

through. That is fine, go ahead, focus it a little

more.” /d. Petitioner’s defense counsel then sought

to clarify, “[I]s that overruled?” /d. The trial judge

replied, “Yes, in one sense. He can go through what

the effect of it since this has come about until now

and she has had to testify, the impact and the effect

on her and that means as she has gone through the

process, just the impact, emotionally on her.” /d.

Mr. Upchurch then testified:

It has been totally devastating, what

she has had to go through, what she

has had to put up with; the constant

retelling to different people, to different

systems of the court system. I mean, to

keep bringing it slamming it in her

face, | mean, y'all just don't have a clue

what this has done to my daughter.

5

She is nowhere near the same daughter

that she was, before. It has just totally

changed her one hundred percent.

Tr. at 1076.

During his sentencing argument, the prosecutor

referred to the testimony “today of the victim's

mother and her father” and reminded the pancl

members, “You heard from both [of BU’s] parents

today.” Tr. at 1173, 1178. The trial judge then

instructed the panel members that “liln selecting a

sentence, you should consider all matters in

extenuation and mitigation, as well as those in

aggravation whether introduced before or after your

findings.” Tr. at 1193.

One of the six panel members who convicted and

sentenced Petitioner was Lieutenant Colonel (Lt Col)

Susan Basset. During voir dire, Lt Col Basset

indicated that she had been a witness in two trials,

the first when “I think I was fourteen years old,”

when she testified as a witness to an airplane crash.

Tr. at 410. She characterized the experience of

testifying as “a bit overwhelming.” /d. Later in her

life, she testified at a court-martial. R. at 410-11.

She indicated that testifying “was much less

terrifying as an adult than it was as a teenager.” R.

at 411.

The panel members sentenced Petitioner to three

years of confinement, forfeiture of all of his pay and

allowances, reduction to the lowest enlisted rank,

and a dishonorable discharge. Tr. at 1204.

3. Both the Air Force Court of Criminal Appeals

and the CAAF affirmed Petitioner’s conviction and

sentence. App., infra, 13a°35a, la-lla.

a. Petitioner appealed both his conviction and

sentence on multiple grounds, including the trial

judge’s ruling on the defense counsel’s objection to

6

Mr. Upchurch’s testimony. The Air Force Court of

Criminal Appeals—one of the military justice

system’s intermediate appellate courts—affirmed the

convictions and sentence in a published opinion.

App., infra, at 14a-35a.

b. The CAAF exercised its discretionary

jurisdiction to decide “whether the military judge

erred by allowing the father of the alleged victim to

testify as evidence in aggravation, over defense

objection, as to the impact on the alleged victim of

the investigation and court-martial.” App., infra, at

12a-13a. A three-judge majority of the CAAF held

that the evidence’s admission was legally correct.

App., infra, at la-7a. The majority distinguished the

United States Court of Appeals for the Eighth

Circuit’s opinion in Burns v. Gammon, 260 F.3d 892

(8th Cir. 2001), as well as a previous military

appellate opinion,” on the ground that “[hlere, there

was no explicit comment by the [prosecutor] or the

father concerning Appellant’s invocation of his rights

but rather, a brief reference to the effect of the entire

proceeding (including, but not limited to, the trial)

on Appellant’s victim.” App., infra, at 6a. The CAAF

held, “Considering the facts of this case, we do not

find the cited cases persuasive and find no

constitutional violation.” J/d. The majority then held

that Mr. Upchurch’s testimony was permissible

under Military Rule of Evidence 403, which is

virtually identical to Federal Rule of Evidence 403.

App., infra, at 6a-7a.

c. Judge Baker, joined by Chief Judge Effron,

concurred in the result. App., snfra, at 8a-lla. He

observed that “the questions asked of the victim's

father ... implicated Appellant’s constitutional right

* United States v. Carr, 25 M.J. 637 (A.C.M.R. 1987).

7

to trial.” App., infra, at 8a. “Significantly,” he

added, the “defense counsel objected on that specific

ground.” Jd. He ultimately concluded that Mr.

Upchurch’s testimony about the effect of the

proceedings on his daughter violated Military Rule

of Evidence 403. App., infra, at 10a. Judge Baker

concluded, however, that the error was harmless

under either a constitutional or nonconstitutional

standard because the “emotional impact on the

victim was dramatic, self'evident during the victim’s

testimony, and_ substantiated through expert

testimony.” App., infra, at lla.

REASONS FOR GRANTING THE PETITION

The CAAF’s decision below conflicts with

decisions of other federal courts of appeals and state

supreme courts precluding criminal defendants from

being penalized for exercising constitutionally

protected procedural rights. The United States

Courts of Appeals for the Seventh and Eighth

Circuits have concluded that it is improper in a

criminal case to cast the defendant’s exercise of such

rights in a negative light. The Seventh Circuit

reached this conclusion without regard to whether

the prosecutor expressly mentioned that the right

exercised—in that case, the right to counsel—was

guaranteed by the Constitution. The Nevada and

Wisconsin Supreme Courts have similarly concluded

that a criminal defendant may not be sentenced

more harshly due to his exercise of constitutionally

guaranteed procedural rights.

Contrary to that case law, the CAAF allowed the

prosecution to present aggravating sentencing

evidence based on the adverse effects the accuser

suffered from Petitioner's exercise of his right to

8

plead not guilty and to cross-examine his accuser, at

least as long as the sentencing authority is not

informed that those rights are constitutionally

based. The CAAF’s approach is inconsistent not

merely with that of other federal courts of appeals

and state supreme courts, but also with this Court's

precedent.

A. Certiorari is appropriate to resolve a

split among the federal courts of

appeals and between a federal court

of appeals and state supreme courts

over whether a criminal defendant’s

exercise of constitutionally

guaranteed procedural rights may be

considered to the defendant’s

detriment at trial.

1. On the very day that the CAAF announced its

opinion below, the United States Court of Appeals

for the Seventh Circuit emphasized the impropriety

of a prosecutor’s summation “castling] the

defendant’s exercise of his constitutional right to

counsel in a negative light.” United States v.

Farinella, 558 F.3d 695, 700 (7th Cir. 2009) (quoting

United States’ brief). Farinel/a is consistent with a

49-year-old Seventh Circuit decision rejecting “the

theory that a person may be punished because in

good faith he defends himself when charged with a

crime, even though his effort proves unsuccessful.”

United States v. Wiley, 278 F.2d 500, 504 (7th Cir.

1960). The United States Court of Appeals for the

Eighth Circuit has taken a similar approach. In

Burns v. Gammon, a habeas case arising from a

Missouri state prosecution, the trial defense counsel

failed to object to a prosecutor’s argument in both

9

the guilt and sentencing phases that “by exercising

his constitutional rights to a jury trial and to

confront witnesses,” the defendant had “forced the

victim to attend trial, take the stand and relive the

attack.” 260 F.3d at 896. The Eighth Circuit held

that the trial defense counsel’s failure to object

constituted ineffective assistance of counsel,

reasoning that “[t]he prosecution cannot use the

defendant's exercise of specific fundamental

constitutional guarantees against him at trial.” Jd.

At least two state supreme courts have reached

similar conclusions. In a case where the judge

stated on the record that he sentenced a defendant

more harshly because he maintained his innocence

after being found guilty, the Nevada Supreme Court

held that “lilmposition of a harsher sentence based

upon the defendant’s exercise of his constitutional

rights is an abuse of discretion” that requires the

sentence’s reversal. Bushnell v. State, 637 P.2d 529,

531 (Nev. 1981) (per curiam). And in a case dealing

with a trial judge’s authority to sentence a criminal

defendant more leniently because he remained silent

during the guilt phase rather than falsely denying

guilt, the Wisconsin Supreme Court observed that

“[w]hile the waiver of a constitutional right may be

taken into account in mitigation, its invocation may

not be used in aggravation of the sentence.” Cresci

v. State, 278 N.W.2d 850, 854 (Wis. 1979).

2. Those courts’ approach is consistent with this

Court’s case law. In a case dealing with a statute

that allowed a death sentence to be imposed based

on a jury verdict but did not authorize a death

sentence where the trial was before a federal district

judge or where the defendant pleaded guilty, this

Court held, “Congress cannot impose [the death]

penalty in a manner that needlessly penalizes the

10

assertion of a constitutional right.” United States v.

Jackson, 390 U.S. 570, 583 (1968). In contrast, the

CAAF’s decision below allows criminal defendants to

be penalized needlessly due to the exercise of their

constitutional rights to plead not guilty and to

confront their accusers.

B. Petitioner was prejudiced by the

trial judge’s ruling, which allowed

Petitioner to be sentenced more

harshly because he exercised his

constitutionally protected rights to

plead not guilty and cross-examine

his accuser.

1. Doctrinally, this Court’s case law appears to

treat the prosecution’s adverse use of a criminal

defendant’s exercise of a constitutional right as a

violation of the constitutional provision guaranteeing

that particular right. So, for example, in Griffin. v.

Californiz, even though the defendant was not

actually compelled to testify, this Court treated the

prosecutor's comment on the defendant's refusal to

testify as a violation of the Self-Incrimination

Clause. See 380 U.S. 609, 613-14 (1965).

A criminal defendant enjoys a “Fifth Amendment

right not to plead guilty.” Jackson, 390 U.S. at 581.

And a criminal defendant enjoys a Sixth Amendment

right to confront his accusers. U.S. Const. amend.

VI. Military case law holds that each of those

constitutional protections applies to courts-martial.

United States v. Johnson, 1 M.J. 213, 215 (C.M.A.

1975); United States v. Jacoby, 11 C.M.A. 428, 29

C.M.R. 244 (1960). Accordingly, the presentation of

sentencing evidence concerning the emotional toll on

Miss BU resulting from testifying at Petitioner’s

11

trial and the trial judge’s indication to the panel

members that they may properly consider that

emotional toll in determining a sentence violated

Petitioner's Fifth Amendment right to plead not

guilty and Sixth Amendment right to confront his

accuser.

2. The CAAF majority sought to distinguish the

Eighth Circuit's Burns opinion, as well as military

appellate precedent, on the ground that in this case

neither the prosecutor nor Mr. Upchurch expressly

referred to Petitioner's exercise of his constitutional

rights. App., infra, at 6a. But a prosecutor must not

be permitted to do with a wink and a nod what he or

she may not do directly. As the Court below has

previously recognized, “It is black letter law that a

[prosecutor] may not comment directly, indirectly, or

by innuendo, on the fact that an accused did not

testify in his defense.” United States v. Mobley, 31

M.J. 273, 279 (C.M.A. 1990); accord United States v.

Taylor, 54 F.3d 967, 978 (1st Cir. 1995) (“Even an

indirect or inferential commenton a defendant’s

silence can transgress the Fifth Amendment.”). Just

as a prosecutor may not comment indirectly on the

defendant's exercise of his Fifth Amendment right

not to “be compelled in a criminal case to be a

witness against himself,” a prosecutor should not be

allowed to comment on a defendant’s invocation of

his Sixth Amendment right “to be confronted with

the witnesses against him” even if the prosecutor is

sufficiently artful to do so without mentioning that

the right is guaranteed by the Constitution.

Surely the panel members understood that the

prosecutor was seeking a harsher sentence due to

Petitioner pleading not guilty and subjecting his

accuser to cross-examination. The panel members

saw Petitioner’s defense counsel object that “[t]hey

12

are asking to penalize the Defendant for invoking his

right to have a trial and the process involved with

that.” Tr. at 1075. And the panel members saw the

military judge overrule that objection, id, which

indicated to the panel members that they could use

the evidence for precisely that purpose. The panel

members no doubt understood Mr. Upchurch’s

testimony that followed as an assessment of the

emotional toll on his daughter resulting from her

hours on the stand, including more than an hour of

cross-examination, in addition to her cross-

examination during the Article 32 investigation,

which was mentioned twice. That emotional toll was

a direct result of Petitioners exercise of his

constitutional rights to plead not guilty and to

confront his accuser.

The CAAF’s express comment prerequisite for

finding a constitutional violation conflicts not only

with Griffin v. California and case law applying it,

but also with the Seventh Circuit's approach in

Farinella. Judge Posner's opinion for the court

agreed with the United States’ concession that the

prosecutor's summation included remarks that were

“improper” because “they cast the defendant’s

exercise of his constitutional right to counsel in a

negative hght.” Farinell/a, 558 U.S. at 700. The first

such statement was, “Ladies and gentlemen, don’t

let the defendant and his high-paid lawyer buy his

way out of this.” Jd. The second was, “Black and

white in our system of justice, ladies and gentlemen.

You have to earn justice. You can’t buy it.” /d.

Neither statement mentioned the Constitution, the

Bill of Rights, or the Sixth Amendment. Yet the

Seventh Circuit considered both as improperly

commenting on the defendant's exercise of a

constitutional right. Had the CAAF taken a similar

13

approach, it would have concluded that when the

prosecutor elicited Mr. Upchurch’s testimony about

the emotional harm his daughter suffered from

testifying, he was attempting to obtain a harsher

sentence through improper means.

3. The concurrence below concluded that while

the trial judge erred by permitting Mr. Upchurch’s

testimony, the testimony was harmless because the

“emotional impact on the victim was dramatic, self-

evident during the _ victim’s’ testimony, and

substantiated through expert testimony.” App.,

infra, at Ya. But that overlooks the principal cause

of prejudice: the trial judge’s ruling that the panel

members could properly use that “dramatic”

emotional impact to enhance Petitioner’s sentence.

Had the trial judge sustained the defense’s objection

rather than denying it, the defense could have

obtained an instruction that the panel members

must not sentence Petitioner more harshly because

his not guilty plea resulted in Miss BU testifying or

because his defense counsel cross-examined her.

Such an instruction would have been significant

because court-martial panel “members are presumed

to follow the military judge’s instructions.” United

States v. Holt, 33 M.J. 400 (C.M.A. 1991). Instead,

the trial judge instructed the panel members that in

selecting a sentence, they should consider all

matters in aggravation—matters which included Mr.

Upchurch’s testimony based on Petitioner’s exercise

of his constitutionally guaranteed procedural rights.

Allowing the panel members to consider this

evidence was particularly prejudicial in this case.

By striking coincidence, one of the panel members—

Lt Col Basset—had testified as a witness when she

was about 14-years-old and had found the experience

terrifying. The trial judge’s ruling on the defense

14

objection to Mr. Upchurch’s testimony told all of the

panel members, including Lt Col Basset, that they

could sentence Petitioner more harshly due to the

emotional harm that Miss BU suffered from

testifying. It also freed Lt Col Basset to share her

experience with the other panel members and freed

them to consider Lt Col Basset’s experience in

exercising their broad discretion to choose an

appropriate sentence. Had the trial judge properly

ruled on the defense objection, on the other hand,

the six military officers on the panel no doubt would

have endeavored to follow any resulting cautionary

instruction and not consider that emotional harm in

choosing a sentence. Thus, the very “dramatic”

emotional 1 apact upon which the concurrence relied

exacerbated the harm of the trial judge’s erroneous

ruling rather than mitigating it.

Mr. Upchurch’s testimony was also prejudicial for

another reason. The members saw Miss BU testify

on Thursday, October 25. But her father did not

testify about how appearing at the trial affected Miss

BU until Saturday, October 27. Thus, Mr. Upchurch

provided the panel members with information

beyond what they saw for themselves during Miss

BU’s testimony; he informed them about Miss BU’s

reaction to testifying during the 48 hours since they

had seen her.

Accordingly, had the CAAF not departed from the

other federal courts of appeals’ and state supreme

courts’ approach, it should have found that the trial

judge’s erroneous ruling prejudiced Petitioner and

remanded his case for resentencing.

15

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Dwight H. Sullivan

Counsel of Record

Tiffany M. Wagner

Captain, U.S. Air Force

Air Force Appellate

Defense Division

112 Luke Avenue

Suite 343

Bolling Air Force Base

Washington, D.C. 20032

(202)767-1562

la

APPENDIX A

UNITED STATES, Appellee

Vv.

Marcus W. STEPHENS, Staff Sergeant

U.S. Air Force, Appellant

No. 08-0589

Crim. App. No. 36682

United States Court of Appeals for the Armed Forces

67 M.J. 233

Argued January 12, 2009

Decided March 12, 2009

STUCKY, J., delivered the opinion of the Court, in

which ERDMANN and RYAN, JJ., joined. BAKER,

J., filed a separate opinion concurring in the result,

in which EFFRON, C.J., joined.

Counsel

For Appellant: Dwight H. Sullivan, Esq. (argued);

Major Shannon A. Bennett, Captain Anthony D.

Ortiz, and Captain Tiffany M. Wagner (on brief).

For Appellee: Captain Coretta Gray (argued);

Colonel Gerald R. Bruce and Major Jeremy S. Weber

(on brief); Major Matthew S. Ward and Captain John

M. Simms.

Military Judge: Mary M. Boone

Za

Judge STUCKY delivered the opinion of the

Court.

We granted review to determine whether the

military judge erred by allowing the father of the

victim to testify in sentencing about the effect the

investigation and court-martial had on the victim.

We hold that there was no error and affirm.

I. Background

Appellant, a twenty-one-year-old staff sergeant (E-

5) was charged with inappropriately touching his

thirteen-year-old cousin by marriage on two

occasions at family parties, once in December 2003

and the other in August 2004. Appellant pled not

guilty to carnal knowledge, sodomy, and indecent

acts. Articles 12U, 125, and 134, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. §§ 920, 925, 934

(2000). A general court-martial with members

convicted him of attempted carnal knowledge,

attempted sodomy, and indecent acts, all in August

2004. Article 80, UCMJ, 10 U.S.C. §§ 880 (2000);

Article 134, UCMJ. He was acquitted of the sole

specification (indecent acts) that was alleged to have

occurred in December 2003. The victim, BU, testified

at length via closed-circuit television in the findings

phase of the trial. She did not testify on sentencing.

During the Government’s sentencing case, the trial

counsel called the victim’s father to testify about the

effect the crimes had on her. He testified concerning

her emotional state and the fact that she no longer

appeared to enjoy sports or other activities. The

trial counsel then asked him the following question:

“How about the effect of this process, the

investigation and her testifying and what not, how

3a

has that impacted her and how has it impacted you?”

The following exchange then took place:

CDC2: Your honor, we would object to

the relevance of this testimony.

MJ: Ill allow it, it goes to victim

impact. I'll allow it, go ahead.

CDC2: Your honor, we object. They are

asking to penalize the Defendant for

invoking his right to have a trial and

the process involved with that.

MJ: Well, I think you need to focus a

little bit, but the process is okay, what

she has had to go through. That is fine,

go ahead, focus it a little more.

CDC2: Your honor, is that overruled?

MJ: Yes, in one sense. He can go

through what the effect of it since this

has come about until now and she has

had to testify, the impact and the effect

on her and that means as she has gone

through the process, just the impact,

emotionally on her.

CDC2: Very [wlell, your honor

MJ: You can talk about that.

TC: Thank you.

4a

WIT: It has been totally devastating,

what she has had to go through, what

she has had to put up with; the

constant retelling to different people, to

different systems of the court system. |

mean, to keep bringing it slamming it

in her face, I] mean, ya'll just don’t have

a clue what this has done to my

daughter. She is nowhere near the

same daughter that she was before. It

has just totally changed her one

hundred percent.

The convening authority approved the adjudged

sentence to a dishonorable discharge, confinement

for three years, forfeiture of all pay and allowances,

and reduction to the lowest enlisted grade. The

United States Air Force Court of Criminal Appeals

affirmed. United States v. Stephens, 66 M.J. 520,

529 (A.F. Ct. Crim. App. 2008).

II. Analysis

We test a military judge’s admission or exclusion

of evidence, including sentencing evidence, for an

abuse of discretion. United States v. Manns, 54 M.J.

164, 166 (C.A.A.F. 2000). Rule for Courts-Martial

(R.C.M.) 1001(b)(4) provides as follows:

The trial counsel may present evidence

as to any aggravating circumstances

directly relating to or resulting from the

offenses of which the accused has been

found guilty. Evidence in aggravation

includes, but is not limited to, evidence

of financial, social, psychological, and

5a

medical impact on or cost to any person

. who was the victim of an offense

committed by the accused....

Testimony as to the effect of the process,

including the trial, on the victim, as was admitted

here, certainly comes within the rather broad ambit

of this rule. Of course, a rule or other provision of

the Manual for Courts-Martial cannot sanction a

violation of Appellant’s constitutional rights. See

United States v. Lopez, 35 M.J. 35, 39 (C.M.A. 1992)

(noting that the military justice system has

hierarchical sources of rights beginning with the

Constitution and that “[nJormal rules of statutory

construction provide that the highest source

authority will be paramount, unless a lower source

creates rules that are constitutional and provide

greater rights for the individual”). Furthermore,

sentencing evidence is subject to the requirements of

Military Rule of Evidence (M.R.E.) 403. United

States v. Hursey, 55 MJ. 34, 36 (C.A.A.F. 2001)

(citing United States v. Rust, 41 M.J. 472, 478

(C.A.A.F. 1995)). When the military judge conducts

a proper balancing test under M.R.E. 403 on the

record, her ruling will not be overturned absent a

clear abuse of discretion; the ruling of a military

judge who fails to do so will receive correspondingly

less deference. /d.; Manns, 54 M.J. at 166. Here,

while the military judge limited the ambit of the

father’s testimony, she did not perform the balancing

test on the record.

Appellant, citing United States v. Mobley, 31

M.J. 273 (C.M.A. 1990), United States v. Carr, 25

M.J. 637 (A.C.M.R. 1987), and Burns v. Gammon,

260 F.3d 892 (8th Cir. 2001), argues that the father’s

6a

testimony was an impermissible comment on

Appellant's right to plead not guilty, confront the

witnesses against him, and put the Government to

its proof, and hence constitutional error.

This case is not analogous to the cases cited. In

Mobley, the trial counsel called attention to the

accused’s failure to testify by apostrophizing at

length, asking rhetorical questions of the mute

accused and providing his own answers.! Both Carr

and Burns were cases in which the government, at

trial, explicitly commented on the fact that the

appellant’s invocation of his constitutional right to a

trial forced the victim to endure the rigors of cross-

examination and relive the experience of being

attacked. Carr, 25 M.J. at 638; Burns, 260 F.3d at

896. Here, there was no explicit comment by the

trial counsel or the father concerning Appellant’s

invocation of his rights but rather, a brief reference

to the effect of the entire proceeding (including, but

not limited to, the trial) on Appellant’s victim.

Considering the facts of this case, we do not find the

cited cases persuasive and find no constitutional

violation.

This does not end the inquiry, however, as

relevant evidence may still be excluded if its

probative value is substantially outweighed by the

danger of unfair prejudice. M.R.E. 403. When, as

here, a military judge fails to conduct the M.R.E. 403

' 31 MJ. at 278-79. We did not hold this to be error, but

vacated and remanded. /d. at 280. On remand, the Air Force

Court of Military Review found error but held it to be

constitutionally harmless. Jl/nited States v. Mobley, 34 MJ

527, 529, 531-32 (A.F.C.M.R. 1991). We summarily affirmed.

United States v. Moblev, 36 M.J. 34 (C.M.A. 1992)

Ta

balancing test on the record, we will examine the

record ourselves. Manns, 54 M.J. at 166.

The overriding concern of M.R.E. 403 “is that

evidence will be used in a way that distorts rather

than aids accurate fact finding.” 1 Stephen A.

Saltzburg et al., Military Rules of Evidence Manual

§ 403.02[4], at 4-27 (6th ed. 2006). Doing so, we find

that the father’s testimony was probative because it

showed specific psychological harm BU suffered as a

result of Appellant’s offense; she was no longer able

to enjoy sports and other activities and had changed

significantly. See R.C.M. 1001(b)(4) (stating that

aggravation evidence’ includes’ evidence of

psychological impact on the victim). The concern for

unfair prejudice arises from the possibility that the

court members might misuse this testimony as a

comment on Appellant’s right to confront and cross-

examine the witness. Under the circumstances of

this case, we find that possibility remote. The

admission of this evidence did not distort accurate

fact finding. Limited as the father’s testimony was

by the military judge, its probative value in

establishing specific harm to the victim was not

substantially outweighed by any danger of unfair

prejudice to Appellant. The military judge did not

abuse her discretion. The evidence was relevant

victim impact evidence and properly admitted under

R.C.M. 1001(b)(4).

We caution trial counsel introducing aggravation

evidence under R.C.M. 1001(b)(4) to use care in

eliciting testimony that may cross the line into

impermissible comment on an accused’s invocation of

his constitutional rights. While we find no abuse of

8a

discretion here, it is not difficult, particularly in

cases involving sexual abuse, to envision such a case.

III. Decision

The decision of the United States Air Force Court

of Criminal Appeals is affirmed.

BAKER, Judge, with whom EFFRON, Chief

Judge, joins (concurring in the result):

Although I do not agree with the Court’s

conclusion that there was no error, I agree that

Appellant was not prejudiced. For that reason, I

concur 1n the result.

As the Court notes, this case is distinguished

from United States v. Carr, 25 M.J. 637 (A.C.M.R.

1°87), and Burns v. Gammon, 260 F.3d 892 (8th Cir.

2001), because the Government did not expressly

comment on Appellant’s constitutional right to trial

or to remain silent. United States v. Stephens, 67

M.J. at 235-36 (C.A.A.F.2009). Rather, the father

testified during a series of questions about the

impact that the crime, the process, and testifying

had on his daughter. But the questions asked of the

victim’s father, while more opaque than in Carr and

Burns, nonetheless implicated Appellant’s

constitutional right to trial. Significantly, defense

counsel objected on that specific ground. Moreover,

the question to which counsel objected was clearly

segregated from the previous question, which dealt

with the emotional impact of the offense generally.

The question objected to dealt with the impact of the

trial itself.

9a

TC: How about the effect of this

process, the investigation and her

testifying and what not, how has that

impacted her and how has it impacted

you?

WIT: It has been totally devastating,

what she has had to go through, what

she has had to put up with; the

constant retelling to different people, to

different systems of the court system. |

mean, to keep bringing it slamming it

in her face, I mean, ya'll just don’t have

a clue what this has done to my

daughter. She is nowhere near the

same daughter that she was before. It

has just totally changed her one

hundred percent.

Therefore, the issue was plainly before the

military judge and this is not a case where the issue

is only found with the clear vision of line-by-line

appeliate hindsight. Accordingly, the military judge

was obliged to address whether the proffered

testimony was directly related to the offense and

legally relevant under Military Rule of Evidence

(M.R.E.) 403. See United States v. Hardison, 64

M.J. 279, 281 (C.A.A.F. 2007) (citing two limitations

on the admission of aggravation evidence, that such

evidence is “directly relating’ to the offenses of

which the accused has been found guilty” and passes

the test of M.R.E. 403). Here, it is clear that, for the

purpose of M.R.E. 401 and Rule for Courts-Martial

1001(b)(4), the testimony directly related to the

10a

impact of the offense on the victim, including the

testimony about the investigation and _ related

proceedings. See United States v. Rust, 41 M.J. 472,

478 (C.A.A.F. 1995) (“The phrase ‘directly relating to

or resulting from the offenses’ imposes a ‘higher

standard than ‘mere relevance.’ Evidence is

admissible on sentence which shows ‘the specific

harm caused by the defendant.””) (citations omitted).

The problem is that the question and answer also

referenced the victim’s testimony at trial. As a

result, on these facts the M.R.E. 403 balancing test

should have broken in Appellant's favor. The

probative value of the answer to this question was

weak in light of the other extensive evidence of

emotional impact. This evidence included the

father’s other testimony, the mother’s testimony, and

the expert opinion of the psychologist on sentencing;

all of which discussed how the offense had affected

the victim’s emotional well-being and changed her as

a person. Additionally, the victim testified for more

than four hours during Appellant’s court-martial,

and the members could observe for themselves the

emotional impact of the offense and subsequent

process on her. On the other hand, the father’s

answer implicated Appellant’s right to trial. In a

court-martial before members, that raised the

possibility that one or more members might sentence

Appellant not only for his offense and its direct

impact on the victim, but also for compelling the

victim to endure the burden of testifying at trial,

which is his constitutional night. That significant

due process risk outweighed the probative value of

the evidence.

lla

However, in the final analysis, the error in

M.R.E. 403 balancing was harmless for much the

Same reason that the evidence was not probative.

The emotional impact on the victim was dramatic,

self-evident during the victim’s testimony, and

substantiated through expert testimony. For this

reason, any error was harmless using either a

constitutional or nonconstitutional standard.

12a

APPENDIX B

UNITED STATES COURT OF APPEALS FOR THE

ARMED FORCES

USCA Dkt. No. 08-0589/AF

Crim. App. No. 36682

United States, Appellee

Vv.

Marcus W. STEPHENS, Appellant

ORDER GRANTING REVIEW

On consideration of the petition for grant of

review of the decision of the United States Air Force

Court of Criminal Appeals, it is, by the Court, this

29th day of October, 2008,

ORDERED:

That said petition is hereby granted on the

following issue:

WHETHER THE MILITARY JUDGE

ERRED BY ALLOWING THE FATHER

OF THE ALLEGED VICTIM TO

13a

TESTIFY AS EVIDENCE IN

AGGRAVATION, OVER DEFENSE

OBJECTION, AS TO THE IMPACT ON

THE ALLEGED VICTIM OF THE

INVESTIGATION AND COURT-

MARTIAL.

Briefs will be filed under Rule 25.

For the Court,

/s/ William A. DeCicco

Clerk of the Court

l4a

APPENDIX C

UNITED STATES AIR FORCE COURT OF

CRIMINAL APPEALS

UNITED STATES v. Staff Sergeant MARCUS W.

STEPHENS, United States Air Force

ACM 36682

66 M.J. 520; 2008 CCA LEXIS 104

March 26, 2008, Decided

Sentence adjudged 29 October 2005 by GCM

convened at Barksdale Air Force Base, Lcuisiana.

Military Judge: Mary Boone. Approved sentence:

Dishonorable discharge, confinement for 3 years,

forfeiture of all pay and allowances, and reduction to

E-i.

Appellate Counsel for the Appellant: Terri R.

Zimmermann (argued), Lieutenant Colonel Mark R.

Strickland, Captain Christopher L. Ferretti, and

Captain Anthony D. Ortiz.

Appellate Counsel for the United States: Major

Brendon K. Tukey (argued), Colonel Gerald R.

Bruce, Major Matthew S. Ward, Major Kimani R.

Eason, Captain Daniel J. Breen, and Captain

Jefferson E. McBride.

Before

FRANCIS, SOYBEL, and BRAND

Appellate Military Judges.

15a

OPINION OF THE COURT

SOYBEL, Judge:

Contrary to his pleas, the appellant was found

guilty of one specification of attempted carnal

knowledge, one specification of attempted sodomy of

a child, and one specification of committing an

indecent act upon a female under the age of 16

years, in violation of Articles 80 and 134, UCMJ, 10

U.S.C. §§ 880, 934.

The appellant was charged with committing

several sexual offenses against his young cousin-by-

marriage, BU. The acts allegedly occurred on two

separate occasions, in December 2003 and August

2004. He was acquitted of the charged acts relating

to the earlier date but convicted of acts which

occurred in August 2004. At that time, BU was 13

years old.

In August 2004, the appellant attended a get-

together at his grandparent’s farm in Gilmer, Texas.

According to BU, the appellant invited her to

accompany him on a walk to shoot his gun and walk

to a creek located approximately a quarter of a mile

from the house. BU testified the appellant stopped

and initiated sexual contact with her several times

during their walk. The sexual contact increased at

each stop and culminated behind a barn near the

house, where she stated the appellant pulled down

her pants and underwear and performed various

sexual acts upon her. According to BU, she started

to cry and told the appellant she was scared. He told

her he would not do anything more and would wait

16a

until a later time before going any further. The

appellant did not testify at trial.

The appellant raises a total of seven issues. One

issue, containing three sub-issues, involves the

Article 32, UCMJ, 10 U.C.S. § 832 investigation.

Two issues allege erroneous evidentiary rulings by

the military judge involving hearsay, which the

appellant contends prevented him from presenting a

defense. Two issues relate to rulings by the military

judge purportedly allowing statements made by the

appellant to investigators and his wife to be used on

cross-examination in the event the appellant

testified in his own defense. One issue asserts

certain testimony by BU’s father, made during the

sentencing phase of the trial, was improper. Finally,

the appellant challenges the legal and factual

sufficiency of the evidence. For the reasons set out

below we find no error.

The Article 32, UCM J, Investigation

The appellant raises three specific issues related

to the Article 32, UCMJ investigation on his case.

He asserts the investigating officer (IO) considered

inadmissible evidence when he read the Air Force

Office of Special Investigations (OSI) report to

prepare for the hearing; the IO abandoned his

neutral and impartial role because he conducted

almost all of the questioning of the witnesses

himself; and lastly, the IO denied the appellant his

right to confrontation by finalizing the witnesses’

written statements after the hearing closed and

outside of the presence of the appellant.

17a

When reviewing allegations of error in an Article

32 investigation we will reverse only when there is a

showing of prejudice to a substantial right of the

accused. United States v. Davis, 64 M.J. 445

(C.A.A.F. 2007); see also United States v. Reynolds

24 M.J. 261 (C.M.A. 1987); United States v. Davis,

20 M.J. 61 (C.M.A 1985). Notwithstanding this

precedent, the appellant urges us to apply a

presumption of prejudice as expressed in U/nited

States v. Martel, 19 M.J. 917 (A.C.M.R. 1985). We

decline to follow this standard of review and will

follow the standard espoused in Davis, 64 M.J. 445.

When reviewing the military judge’s findings, we

will accept her findings of fact unless they are

clearly erroneous. U/nited States v. Tippit, 65 M.J.

69, 79 (C.A.A.F. 2007); United States v. Mizgala, 61

M.J. 122, 127 (C.A.A.F. 2005).

In this case, the IO testified at trial. He stated

he reviewed a copy of the OSI investigation report

before he conducted the Article 32 investigation, but

did so only to become familiar with the nature of the

case and to focus his questioning. He clearly stated

under oath that he did not consider the OSI report

when making his recommendations to the convening

authority. The military judge found the IO to be

credible and found that he did not let the OSI report

influence his recommendations to the convening

authority.

As to the IO conducting most of the questioning

of the witnesses, as opposed to the trial counsel, this

procedure did not prejudice the appellant. He was

present during the Article 32 investigation and had

the opportunity to cross-examine the witnesses.

Although the procedure deviates from usual Air

18a

Force practice, we note Article 32, UCMd, places the

burden on the 10 to thoroughly and impartially

investigate charges. The burden is not on the

government's counsel. In fact, appointment of

government counsel is discretionary on the part of

the commander who directed the investigation. It

was not improper for the IO, acting under this

mandate, to conduct the Article 32 investigation in

the manner he did. The [LO noted one of the

government's counsel was due to leave for a new

assignment the next day and the other counsel was

an inexperienced judge advocate who had never

participated in an Article 32 investigation. Further,

because of his extensive experience as an

administrative law judge,! he felt very comfortable

questioning witnesses, especially the young victim in

this case. We agree with the military judge that the

IO was merely trying to gain a clear understanding

of the events and facts pertaining to the charged

offenses and was not taking on the role of

government counsel or abandoning his impartial

role.

Finally, we point out that the IO in the Marte/

case, cited above by the appellant, went even further

than the IO in the case sub judice, in that he read

police reports involving other crimes committed by

the accused, went to the scene of the offense under

investigation, and had an ex parte conversation with

one of the witnesses. As in this case, the IO in

Marte! testified these events did not influence his

decision about the charges he was investigating.

Even applying the presumption of prejudice

' The IO was a reserve judge advocate.

19a

standard, the Marte/ court found the IO’s testimony

overcame the presumption.

The appellant’s final assertion of error regarding

the Article 32 investigation involved post-hearing

conduct by the Investigating Officer. After taking

testimony at the hearing, the IO summarized the

witnesses’ testimony, mailed each witness a copy of

the summarization, then called each witness to have

them confirm their respective summaries. The IO

testified no substantial changes were made by the

witnesses; only minor grammatical corrections.

Further, the IO testified he would make adjustments

only after he could personally verify the changes

from his own recollection of the witness’ live

testimony. The appellant argues that the IO’s action

in this case denied him his right to confrontation, as

was the case in United States v. Whitt, 21 M.J. 658

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

In the Whitt case, the IO conducted two ex parte

sessions with three witnesses and_ received

additional evidence outside the presence of the

appellant and his counsel. The convening authority

corrected this situation by ordering the IO to reopen

the hearing and further ordered him not to consider

the new evidence. Even applying a “presumption of

prejudice” standard, the court found the convening

authority's corrective actions resulted in preventing

prejudice to the accused.

This case differs from Waitt. In the instant case,

the IO did not elicit any new information from the

witnesses. He merely had them confirm information

already given when the appellant and his counsel

were present and had the opportunity to challenge

20a

the testimony and ask further questions. Indeed,

other than objecting to the procedure utilized by the

IO, the appellant can point out neither changes in

testimony nor prejudice that resulted from the post:

hearing summarization process.

Certainly, if changes in a witness’ testimony

emerged as a result of this practice, a military judge

would be faced with the question of whether the

accused received a fair hearing. We do not face that

situation in this case. The military judge found the

IO was only verifying information obtained during

the hearing and did not collect any additional

evidence. We sce no reason to disturb this finding of

fact. See Tippit, 65 M.J. at 79. Therefore, we hold

that an investigating officer does not violate an

accused’s right to confront witnesses under Article

32, UCMJ, when he asks witnesses to review and

confirm summarizations of their testimony, obtains

no new evidence, and no factually relevant changes

to the testimony result from the post-hearing

contact. If that were to happen then the remedy, as

used in Whitt, would be to reopen the hearing.

Evidentiary Rulings Impacting the Appellant’s

Ability to Present a Defense

The appellant argues the judge erred in several

evidentiary rulings. He asserts these rulings

prevented him from presenting a defense. At the

outset, we should note the theories presented by the

government and the appellant at trial. The offenses

first came to light when BU’s mother read about

them in her daughter’s personal diary. The

government's general theory of the case was that the

appellant wanted BU secluded from the others

Zla

attending the gathering so he could initiate sexual

contact with her. In this vein, BU testified the

appellant told her they would wait until everyone

else had either left the party or went in to take a nap

before they went to the creek. On the other hand,

the appellant’s theory was that BU was not credible

and had fantasized about the incidents with the

appellant when she wrote about them in her diary,

as she had about other boys from her school.2

The first evidentiary issue contested by the

appellant involves exclusion of testimony by the

appellant’s sister. She would have testified the

appellant asked her if she wanted to walk to the

creek with him and that when she declined the offer,

BU volunteered to accompany the appellant on the

walk. This evidence would have be n offered to

show BU was not credible and it was she who asked

to go on the walk with the appellant. It would also

be used to counter the government’s theory of the

case that the appellant used the walk to the creek as

an excuse to be alone with BU. The judge ruled this

testimony was hearsay and inadmissible.

The appellant asserts the military judge erred in

her ruling. He cites United States v. McAllister, 64

M.J. 248 (C.A.A.F. 2007), to support his argument

that he was thereby denied his constitutione’ right

to present a defense. The government counters this

argument with cases such as United States v.

Carruthers, 64 M.J. 340 (C.A.A.F 2007) and United

States v. Roberson, 65 M.J. 43 (C.A.A.F. 2007), to

2 RU admitted that she made up entries in her diary concerning

hoys she knew and these entries were fantasies.

22a

assert that although he may have been somewhat

limited in his effort, the appellant was not denied his

ability to present a deferise.

The distinction between these two lines of cases

is important. If the appellant was denied the

opportunity to present a defense, the error would be

of constitutional magnitude. If so, we must

determine whether the error was harmless beyond a

reasonable doubt. See Chapman v. California, 386

U.S. 18 (1967). On the other hand, if the defense

was merely limited in its ability to present a defense,

the error would be considered a nonconstitutional

error, and the government need only show that the

error did not have a substantial influence on the

findings. United States v. Clark, 62 M.J. 195

(C.A.A.F. 2005) (citing United States v. McCollum,

58 M.J. 323 (C.A.A.F. 2003)).

McAllister involved an Army specialist convicted

of unpremeditated murder. He was denied the

opportunity to present evidence that’ three

unidentified people’s DNA (in addition to his) was

found under the victim’s fingernails. That evidence,

while not excluding the appellant as the possible

assailant, would have shown he was not the “sole

contributor as the government portrayed him to be.”

McAllister, 64 M.J. at 253. The fact that the

appellants DNA was found under the victim’s

fingernails was a key factor in his conviction. Our

superior court set aside the finding of guilty and the

sentence because McAllister was “precluded . . . from

presenting an entire line of defense to the members.”

Id.

23a

Carruthers was a case involving an Army staff

sergeant who was convicted of a conspiracy to steal

over a million dollars worth of government property.

During his trial, one of his co-conspirators testified

against Carruthers. Carruthers’ trial defense

counsel crossed-examined the co-conspirator

regarding the pre-trial agreement (PTA) he had

made with federal authorities. He brought out the

fact that by being tried in federal court, the witness

would not undergo a court-martial and risk a

punitive discharge; that to date, no one had

discussed or initiated administrative separation of

the witness; that the witness believed what

happened to him after the court-martial would

depend on his testimony at the appellant’s trial; that

if he did a good job testifying, the government would

“take care of him”; and that he was facing only one

count of theft of public property over $1,000 even

though he could be facing many more counts.

Carruthers, 64 M.J. at 342.

The defense counsel was not allowed to inquire

about the co-conspirator’s understanding of the

sentence he would receive under the plea agreement.

The military judge also did not allow the defense to

bring out any more information regarding the co-

conspirator’s PTA, explaining that the defense had

already made their point concerning the witness’

interest in testifying at the appellant’s court-martial.

The defense objected to the military judge’s ruling,

arguing the members should know about the details

of the witness’s PTA because of the possibility he

would lie to in order to receive a reduced sentence.

Id. at 343.

24a

Our superior court found no error in that

situation because the defense was not denied “the

right to examine the possibility of bias’, but rather

was “simply limited [in] its ability to inquire about

yet another aspect of the plea agreement, when the

agreements bearing on bias had already been

thoroughly explored.” /d. at 344. The Court went on

to explain “once the defendant has been allowed to

expose a witness's motivation in testifying, ‘it is of

peripheral concern to the Sixth Amendment how

much opportunity defense counsel gets to hammer

that point home to the jury.” Jd. (quoting United

States v. James, 61 M.J. 132, 136 (C.A.A.F. 2005)

(citations omitted)).

Clearly this case falls on the same side of the

fence as Carruthers. Even assuming for the sake of

argument that the statement at issue was not

hearsay and could have been admitted into evidence,

we find no prejudice. Although the military judge’s

ruling limited some of the evidence the appellant

wished to present concerning BU’s lack of credibility,

he certainly was not denied the opportunity to

present his defense that BU should not be believed.

The appellant was able to present evidence which

allowed the defense to argue that BU created

fantasy entries in her diary about boys she liked and

even went so far as to fabricate notes to herself, as if

written by boys in whom she had an interest. The

defense also pointed out there were pages missing

from the diary that were adjacent to the pages

describing incidents that led to the charges being

brought. They pointed out that the diary entry was

not dated, that BU was not as innocent or naive as

the government portrayed her, and that she made

25a

entries in her diary that conflicted with her

testimony at trial. There was even more evidence

the defense used to convince the members BU was

not credible. The trial defense counsel argued BU

was untruthful when she testified she knew her

mother would read her diary and discover what

happened, that a home video had exposed significant

inconsistencies between some of her allegations and

what was preserved on the video, and that her

timeline of the events was inaccurate. In addition,

the defense was able to attack BU’s description of

the clothes appellant wore as well as her description

of a certain truck relevant to one of the alleged

incidents. Finally, they were able to argue that her

story concerning how the incident physically

occurred didn’t make sense and that she was

untruthful about the appellant touching her

inappropriately in a store.

These were but a few of the examples of BU’s

unreliability put forth by the defense during the

closing argument on findings. In all, his argument

totaled over 25 pages of the transcript and BU’s

incredibility was essentially the entire focus.

Whether the appellant asked his sister or mother to

walk to the creek before he went there with BU is

just one more example which may have marginally

added to the appeliant’s defense, but the military

judge’s ruling certainly did not prevent him from

presenting the defense that BU was not credible.

The second evidentiary ruling contested by the

appellant is similar to the one discussed immediately

above. BU testified that at some point during the

August family get-together, the appellant, his sister

and BU went to Wal-Mart to shop. BU testified that

26a

while they were in the store the appellant held her

hand, touched her buttocks, and told her he was

going to marry her. During the direct examination

of the appellant’s sister, the defense counsel asked

whether she ever heard any discussion about the

appellant marrying BU. The military judge

sustained the trial counsel’s objection to this

question on hearsay grounds. She also ruled that a

rephrased version of this question was inadmissible

as hearsay. The defense counsel stated he did not

want to submit the evidence to prove the truth of the

matter asserted (to show the appellant wanted to

marry BU), but rather to have the appellant’s sister

testify that she did not hear the appellant make such

a comment. Thus, the defense was only asking

whether the words were spoken.

The appellant claims this evidence would have

impeached BU. They emphasized that BU was the

only witness against the appellant, thereby making

the use of this impeachment evidence “crucial” to the

defense. For the reasons stated above, even

assuming, arguendo, that the military judge’s ruling

was in error, the appellant was only partially limited

in presenting his defense that BU was not worthy of

belief and the ruling did not prevent him from

presenting that defense to the members.

Carruthers, 64 M.J. at 344. Finally, although the

appellant’s sister was not allowed to testify about

the statements allegedly made at Wal-Mart, the

same evidence was admitted through the testimony

of the appellant’s wife when the trial counsel failed

to object. Any error in not allowing a second witness

testify to the same facts is harmless. Given the

above, we are convinced that the appellant was

merely limited in his ability to present a defense and

27a

any error caused by the exclusion of the testimony at

issue would be a nonconstitutional error. After

reviewing all the evidence admitted at trial, we find

any error, assuming, arguendo, there was one, did

not have a substantial impact on the findings.

The Appellant's Decision Not to Testify

Among the evidence the defense sought to

suppress was a statement in an email message from

the Army Criminal Investigations Division (CID).

The email concerned an interview the CID conducted

with the appellant while he was deployed. It read,

“[SSgt Stevens] -was interviewed and asked for a

lawyer - stated ‘knew this was coming, surprised it

took this long.” Because no witnesses with

knowledge about the circumstances under which this

interview occurred were present in court, it was

unknown when, in relation to the time the appellant

was read his rights under Article 31, UCMJ, the

statement was made. In fact, the only evidence that

the statement may have been made was the email.

While the military judge granted the defense’s

motion to suppress the statement, she ruled it was

an indication of a consciousness of guilt and could be

used to cross-examine the appellant if he testified;

even if his testimony consisted of a general denial of

the accusations.

Another related evidentiary ruling involved

statements made by the appellant to his wife in

confidence. His wife later related these comments to

law enforcement agents. The appellant indicated he

planned on calling his wife to testify about her

observations of the events on the day in question.

28a

The appellant also filed a motion in limine seeking a

ruling from the military judge that would prevent

the trial counsel from asking the appellant's wife

about those statements because they fell under the

husband-wife privilege, Mil. R. Evid. 504. After the

military judge granted the appellant’s motion and

the trial counsel said he would not be asking her

about the confidential communications, the military

judge stated:

Okay, just one second. Well I am going

to preclude you for now. Obviously if

the accused gets on the witness stand

and he said things to her, | think it is

open, cause she has made those public. .

I am just kind of warning you that

these things hang out there now over

your head - over his head... . Since she

isn't testifying about communications. .

. I won't allow the government to go

into those; however, I am just saying

that it is hanging out there if the

accused takes the witness stand.

Based on the military judge’s rulings that the

appellant's statement to the CID and his confidential

communications to his wife might be used to cross-

examine him, the appellant elected not to testify at

his trial. He argues on appeal that the decisions by

the military judge forced him into choosing between

not testifying in his own defense or testifying and

then suffering the prejudice of the judge’s erroneous

3 The appellant submitted this information through affidavits

to this Court.

29a

rulings. Thus, he claims he was prevented from

presenting a defense.

This claim is without merit for two reasons.

First, regarding the ruling on the statements

covered by spousal privilege, the military judge did

not actually make a ruling. Second, the appellant

never testified, which is a requirement under

military law in order to preserve both issues. See

United States v. Jones, 43 M.J. 708 (A.F. Ct. Crim.

App. 1995).

Jones clearly states that the witness must

actually testify to preserve the issue for appeal. Jd.

at 710. In Jones, it was the appellant’s wife who the

defense decided not to call as a witness because of

the judge’s indication she would deny their motion in

limine and allow the wife to be cross-examined on

certain matters despite her assertion of the spousal

privilege. Jd. at 709.

In Luce v. United States, 469 U.S. 38 (1984), the

accused decided not to testify after the judge’s ruling

that allowed the use of a prior conviction for

impeachment purposes. The Supreme Court stated

that an appellate court would be forced to speculate

on the harm caused if the accused never testified.

/d. at 41. The Court also recognized that the judge

may even change his ruling depending on the actual

testimony elicited and noted the prosecutor might

even decide not to use the evidence that was the

subject of the motion in limine. /d. at 41°42. Jones

makes Luce applicable to courts-martial. Jones, 43

M.J. at 711; see also United States v. Sutton, 31 M.dJ.

11, 18 (C.M.A. 1990), United States v. Gee, 39 M.J.

311, 312 (C.M.A. 1994). Through supplemental

30a

citations, the appellant urges us to depart from the

reasoning of Luce, and find the issues were

preserved sufficiently for appellate review

notwithstanding the witness’ failure to testify when

the record clearly indicates what the testimony

would have been had they testified. We decline to

take this route and will abide by stare decisis.

Further, we disagree that we could determine what

the testimony in this record would have been given

the nature of the cross examination. Certainly,

there might be good arguments that some of the

evidence discussed in the issue above would be

allowed for impeachment purposes if the appellant

testified. See United States v. Swift, 53 M.J. 439

(C.A.A.F. 1999); United States v. Sykes, 38 M.J. 669

(A.C.M.R. 1993).

Victim Impact Evidence

Citing United States v. Bellingham, ACM 33674,

2001 CCA LEXIS 18 (A.F. Ct. Crim. App. 29 Jan

2001) (unpub. op.), the appellant asserts the military

judge erred when she permitted BU’s father to

testify, during the pre-sentencing phase of the trial,

concerning the impact that the pretrial and trial

process (specifically testifying at the Article 32,

UCMJ, investigation and at trial) had on his

daughter. Her father told the members that the

process of testifying multiple times and having to

retell the story of her victimization “has been totally

devastating” to BU and that “[s]he is nowhere near

the same daughter that she was before.”

The appellant averred, at trial, that this line of

testimony essentially punished him for asserting his

constitutional right to a jury trial, to cross-examine

3la

the witnesses against him, and to have the

government bear the burden of proving every

element of the offenses with which he was charged.

Bellingham was a case where the victim of a

credit card theft was allowed to testify about the

time he spent investigating the charges, the impact

that lost time had on his military training, the

problems he had correcting his credit rating, and the

problems he had making future purchases. This

Court found no error with any of that testimony.

However, we did find problematic the victim’s

testimony regarding the timing of the Article 32

investigation, which interfered with the victim’s

departure date, his graduation, and his ability to

attend to his immediate family when some members

of it were ill. Bellingham, 2001 CCA LEXIS 18, at

"3°s.

We held the testimony was improper evidence in

aggravation because the appellant had no control

over the timing of the judicial process, and the

timing did not result from the appellant’s offense.

2001 CCA LEXIS 18, at *7. However, we did find

that the victim’s obligation to testify was the direct

result of the appellant's crimes and was not

necessarily improper as evidence in aggravation. In

fact, in Bellingham we stated “[wle do not hold that.

evidence of the adverse effect on a witness resulting

from their obligation to testify at trial can never be

admissible as aggravation evidence in sentencing.”

2001 CCA LEXIS 18, at *7. Nonetheless, in dicta,

we did question whether such evidence would

survive a Mil. R. Evid. 403 balancing test when

compared with the appellant’s exercise of his

constitutional trial rights. However, in that case no

32a

objection to the evidence was made at trial and the

military judge did not perform the Mil. R. Evid. 403

analysis.

Rule for Courts-Martial (R.C.M.) 1001(b)(4)

provides for the general principles of permissible

evidence of aggravation at sentencing:

(4) Evidence in aggravation.

The trial counsel may present evidence

as to any aggravating circumstances

directly relating to or resulting from the

offenses of which the accused has been

found guilty. Evidence in aggravation

includes, but is not limited to, evidence

of financial, social, psychological, and

medical impact on or cost to any person

or entity who was the victim of an

offense committed by the accused and

evidence of significant adverse impact

on the mission, discipline, or efficiency

of the command § directly and

immediately resulting from the

accused’s offense.

R.C.M. 1001(b)(4). Recently, in United States v.

Hardison, 64 M.J. 279 (C.A.A.F. 2007), our superior

court discussed the limitations on the admissibility

of evidence pursuant to R.C.M. 1001(b)(4):

There are two primary limitations on

the admission of aggravation evidence.

First, such evidence must be “directly

relating” to the offenses of which the

accused has been found guilty. This

33a

rule does “not authorize introduction in

general of evidence of . . . uncharged

misconduct,” and is a “higher

standard” than “mere relevance.” The

second limitation is that any evidence

that qualifies under R.C.M.1001(b)(4)

must also pass the test of Military Rule

of Evidence (M.R.E.) 403, which

requires balancing between the

probative value of any evidence against

its likely prejudicial impact.

Hardison, 64 M.J. at 281 (citations omitted).

Although the evidence regarding the judicial

process’ emotional impact on BU was not uncharged

misconduct, the two limitations mentioned above are

appropriate. We hold under the circumstances of

this case, the military judge did not abuse her

discretion by permitting BU’s father to testify how

the multiple occasions BU had to testify impacted

his daughter emotionally. This case was unlike

Bellingham in that it did not involve the timing of

the hearings, something that the appellant could not

foresee and over which he had no control. However,

it would be unreasonable for someone who commits

an offense of this type to argue it is unforeseeable

that the victim of a sexual assault would be called

testify at a trial. Further, it would be just as

unreasonable to argue that one could not foresee

that the act of testifying could be emotionally

difficult for a 13-year-old girl.

The military judge did consider the appellant's

objection based on the BSellingham rational of

“nunishing” the appellant for asserting his rights. In

34a

response, the military judge limited the father’s

testimony to the emotional impact on BU of having

to go through the judicial process. Thus, unlike the

timing issue in Bellingham, the military judge

limited the evidence to that which was “directly

related” to the offense. Having to testify at trial,

unlike the timing of the hearing itself, is directly

related to, and results from, the commission of the

offense.4

Furthermore, by limiting the testimony as she

did, the military judge struck a reasonable balance

between the appellant’s right to a trial and the

government's ability to present evidence in

aggravation. She did not allow the father to testify

about every possible negative effect the process had

on BU. She specifically limited his testimony to the

emotional impact on BU of going through the judicial

process. We find that the probative value of this

testimony outweighed any lhkely prejudicial impact.

The remaining assignment of error by the

appellant and his counsel has been considered and

determined to be without merit. United States v.

Matias, 25 M.J. 356, 361 (C.M.A. 1987).

Conclusion

The findings and sentence are correct in law and

fact, and no error prejudicial to the substantial

rights of the appellant occurred. Article 66(c),

4 We also note that there was no differentiation made between

the defense’s questioning of BU as opposed to the government's.

However, in this case, it is clear that the impact felt by BU was

a result of the judicial process itself, and not focused on the

appellant's assertion of his rights within that process.

35a

UCMJ, 10 U.S.C. § 866(c); United States v. Reed, 54

M.J. 37, 41 (C.A.A.F. 2000). Accordingly, the

findings and sentence are

AFFIRMED.