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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2009

## Text

” 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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CONSTITUTIONAL PROVISIONS INVOLVED ...... 1.
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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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Court of Appeals for the Armed Forces

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0618%3A1. Public record. Not legal advice.