United States v. Collier

STATES, Appellee, UNITED

Kimberly COLLIER, L. Aviation Class,

Machinist’s Mate Third Navy, Appellant.

U.S.

No. 08-0495.

Crim.App. No. 200601218. Appeals

U.S. Court Forces.

the Armed

Argued Dec. 2008. May

Decided opinion of the

Judge RYAN delivered the Court. presents question whether

This case granting erred in the Gov- Ap- prohibiting motion in limine ernment’s pellant’s defense counsel from cross-examin- witness, C, ing HM2 the main Government romantic rela- about an homosexual tionship Appellant her and and from a relation- introducing evidence of such permit ship.1 While friendship, about a close cross-examination present the defense that wanted that HM2 framed for larce- was C ny as a result of their romantic ending badly. ruling, Appel- of Because of lant was free to assert the motivation disappointed than a angry friend rather lover; argued then its as the Government angry, vengeful closing, the motivation of an just logic; friend “strains all it’s not credi- ble.” ruling prevented Ap- military judge’s fully exploring HM2

pellant’s counsel from misrepresent and motive to C’s bias truth, present- precluded Appellant facts ing theory her of the case. Under the Appel- a of this this was violation right lant’s Amendment to confront Sixth against her. See Delaware v. Van Arsdall, 106 S.Ct. 475 U.S. (1986) (“[A] criminal defendant L.Ed.2d 674 states a violation of the Confrontation Clause prohibited from en- showing that he was gaging appropriate cross-exami- otherwise RYAN, J., opinion of the delivered prototypical designed to show a form nation EFFRON, C.J., Court, ERD- which witness-”). part of bias STUCKY, JJ., BAKER, joined. MANN and case, includ- the circumstances of this Under J., dissenting opinion. separate filed a argument closing that in ing the fact its evidentiary limita- exploited the Government Kilian, Kyle Appellant: Captain For criticize the with requested tion it (argued); Lieutenant W. Scott Stoeb- USMC left, we find this consti- which was (on brief). ner, JAGC, USN beyond a error was not harmless tutional Puteo, of United reasonable doubt. The decision Louis J. Appellee: For Colonel brief). (on Corps of Crimi- Navy-Marine Court K. Keller (argued); Brian USMC AND A CENTRAL Appellant's petition, granted BETWEEN APPELLANT Upon review following issue: BY WITNESS OFFERED GOVERNMENT MO- MILITARY JUDGE ABUSED TO SHOW BIAS AND WHETHER THE THE DEFENSE EXCLUDING, BY PURSU- HIS DISCRETION OF ON THE PART TIVE TO MISREPRESENT EVIDENCE ANT TO M.R.E. RELEVANT GOVERNMENT WITNESS. THE HOMOSEXUAL RELATIONSHIP OF A PRIOR (CCA) Appeals upholding nal return of the tools to command. judge’s ruling is reversed. There were 215 tools returned to HC-8 of which approximately 65 were I. Facts etched with the command code “B10” or A special composed court-martial of mem- Among “Bl.” the tools returned was an Appellant, contrary bers convicted to her Testimony etcher. at trial established that pleas, specification larceny of one mili- prior in, to HM2 turning C them no one had tary property specification and one of ob- large quantity noticed this missing. of tools justice structing by. wrongfully endeavoring though cursory This was true even visual witness, to influence the of a check of the locker in which such tools were violation of Articles 121 and Uniform kept long done before the tools were (UCMJ), Military Code of Justice 10 U.S.C. Testimony turned in. also established that (2000). §§ adjudged The sentence all while of the recovered among tools were by approved by the court-martial and HC-8, by many, all, those used if not of them convening authority a included bad-conduct purchased could be at retail stores such as discharge, months, confinement for six and Sears. grade. reduction to the lowest enlisted Some time Appellant after had been Navy-Marine Corps United States Court of charged larceny tools, with of the HM2 C Appeals Criminal affirmed. United States v. Appellant encountered beauty at a salon. Collier, No. NMCCA 2008 CCA salon, HM2 C testified that at the she over- *29, at LEXIS 2008 WL at *11 Appellant heard speaking phone. on her cell 2008) (N.M.Ct.Crim.App. (unpub- Feb. C, According to lished). Appellant HM2 while was her, standing Appellant close to said into her court-martial, Prior to her Appellant “Yeah, phone: bitch; cell get should this served as the Helicopter tool custodian for get let’s salon, her.” When HM2 C left the (HC-8) Support Squadron Combat EIGHT she found that a tire on her car had been Norfolk, Virginia. in larceny charge in Appellant slashed. admitted to the civilian this case involves tools to have been authorities that she had slashed the tire. taken from Hospitalman this command. Sec- incident, Based on this Appellant was (HM2) ond Class C testified for the Govern- charged with obstructing justice one count of ment that she found these tools in her home. by wrongfully endeavoring to influence the HM2 C testified that Appellant she and had witness, of a under Article good been Appellant friends and that had UCMJ. stayed at her nights home four or five a Appellant kept court-martial, week. some of Prior belong- her the Government ings home, at HM2 a specifically, C’s filed motion in seeking prohibit HM2 limine point, C’s son’s bedroom. At Appellant some defense counsel from cross-ex- falling amining and HM2 C had a out and HM2 HM2 C about an alleged C homosexu- requested Appellant al relationship not return to HM2 romantic between her and C’s disagreed home. The women introducing any about and from how belongings relationship. could her of such a retrieve The basis of the (1) eventually HM2 which Appel- resulted in Government’s motion was threefold: no asking existed, lant help relationship her for obtain- command even it did (2) ing relevant; several items she claimed were exist it was not still at even if the house, tools, HM2 including television, relationship relevant, C’s prejudice a created ring. and a Navy policy diamond HM2 C statute and prohibiting testified that ho- when items, she checked mosexual substantially her home for these conduct would out- (3) relevance; she bag weigh first found a garage, allowing tools her and later found questioning more tools in a line of chest of would “serve to em- drawers her son’s room. barrass and harass the witness.” After discovery, each motion, C consulted At hearing trial counsel with arranged her command and then for the First, advanced two additional arguments. per- motivates a disagreed, arguing: “What by in- bias could show sufficient may be something, or how no son to do were fact that the women quiring into the different, think, ap- biased, completely ar- I are women had longer friends because friendship a oranges, be- daughter ples and also HM2 C’s gued about it be homo- Appel- relationship, whether boyfriend didn’t like romantic cause HM2 Second, dispute about the factual lant. sexual heterosexual.” actually had a ro- the two women whether motion, the argument on the hearing After collateral relationship was a mantic on the record that stated pro- to take over threatened matter that evidence, “presented had sufficient During ceedings and confuse the members. motion, that there purposes for further asserted hearing trial counsel Transcript relationship.” was such relationship of a homosexual that evidence 08-0495; 75-76, see No. of Record inflammatory” the members to was “too 104(a) (“Preliminary questions con- M.R.E. assertion, counsel of this trial part hear. As ... admissibility of evidence cerning ... nature emphasized the homosexual military judge.”). shall be determined danger of unfair linked the relationship and motion, mili- ruling on the In his formal finding that congressional prejudice to the finding a conclusive tary judge not make risk “homosexuality presents unacceptable the sexual of fact as to whether morale, order, good high standards of occurred, that although he did note actually Transcript of military.” discipline in the during hearing on the motion: the Collier, 54, v. No. States Record at United testimony of the presented 654(a)(14)(2000). [T]he defense 08-0495; § 10 U.S.C. such a that there was the accused motion, arguing opposed the The defense also testified The accused relationship. guarantees the Amendment that the Sixth four relationship lasted months that their wit- right confront and cross-examine to report- just prior to the witness and ended by limitation requested that the nesses and larceny. accused also The ing the those De- rights. violated the Government always relationship was that their testified argued that cross-examination fense counsel sexual, early on or about it ended until of a ro- any extrinsic evidence related presented government 2004. The March relationship would be ad- mantic homosexual ac- by the evidence cross-examination Military Rule of Evidence under missible refute by that tends to affidavit cused 608(e) (M.R.E.) support a to relationship. any aspect to the Appellant and against HM2 C was biased testimony Ruling because on Government Motion Findings to lie in her had a motive Collier, 1, v. badly. See States relationship had ended In Limine United their at 608(c) Court-Martial, (“Bias, any mo- Tidewater Judicial prejudice, Special or M.R.E. 2004). (Nov. 24, im- may to misrepresent be shown Circuit tive to relationship has the by examination “nature of peach witness either found the the [the ad- to the determination of by or evidence otherwise some relevance the witness duced.”). addition, then jury.” ar- Id. at He defense issue bias] In counsel rele- “balancing this would be relevant after gued this evidence concluded that 611, M.R.E. Appel- 403 and slashing was vance with the tire due M.R.E. show that this rela- nature of breakup of their finds that the sexual anger over the court lant’s sufficiently Id. intent to relevant.” relationship “with the is not tionship, rather than done testimony, required Finally, judge as ruled: influence” justice charge. Manu- obstructing prove the ask, may on cross-examina- [T]he defense IV, Courts-Martial, pt. United States al for tion, characterize if the witness would (2005 ed.) (MCM). 96b(3) para. close, emo- personal relationship and/or if may ask her defense tionally that there close. claimed the Government While ordinary than relationship was closer qualitative difference no 608(c), the M.R.E. relationship for friends. Pursuant friendship and a romantic evi- introduce extrinsic bias, may also defense showing counsel defense purposes of 352 relationship proposed

dence nature of the his line of cross-examination.” Van documents, Arsdall, including if other- 475 U.S. at S.Ct. 1431. The However, wise admissible. right unlimited, defense of cross-examination is not open however; of any alleged will issue sexu- the accused’s right confrontation acts between al and the ac- witness give, example, does not for free license to Specifically, cused. will not cross-examine a witness to such an extent as ask was would point ‘“hammer th[e] home to the ” sexual, homosexual, intimate romantic. James, jury.’ United States 61 M.J. (C.A.A.F.2005) 135 (quoting United added). (emphasis Id. Nelson, (7th Cir.1994)). 39 F.3d The CCA found that the Whether sufficient cross-examination has not abuse his discretion when he limited de- permitted been depends on whether the wit fense counsel’s cross-examination of HM2 C. ness’s motivation testifying already has *11, 2008 CCA LEXIS exposed inquiry been and “further ... would Specifically, WL at *4. the CCA marginally [be] relevant at best and poten “Reviewing stated: the facts the mili- before tially misleading.” United States v. Carruth tary judge at ruling, the time of his ers, (C.A.A.F.2007) (finding correctly conclude that he pro- balanced the coconspirator cross-examination of about his against prejudicial bative value impact of pretrial agreement was sufficient even that would particu- have been of a though judge had refused to larly inflammatory nature a trial court- permit questions related to setting the term *10, Id. at martial.” 2008 WL at *4. punishment). a maximum support conclusion, In “ of this the CCA cited high degree antipathy ‘the to homosexu- ” military judge’s rul in the ality armed forces’ as as the fact well “ ing prohibited all cross-examination ex person engages ‘[a] who in homosexual trinsic regarding evidence a sexual or roman subject ... conduct is mandatory to dis- ” relationship tic Appellant between and HM2 charge, very with limited exceptions.’ Id. C. This Appellant did not allow expose to (quoting United Phillips, States v. 52 M.J. nefarious motivation behind HM2 (C.A.A.F.2000) (Effron, J., 273 dissent- allegations testimony. The Govern ing)). argues ment was able con to II. Discussion duct sufficient cross-examination re without vealing whether relationship between A. The Sixth Amendment and limits However, two women was a romantic one. it on cross-examination is intuitively obvious that qualita there is a It is well settled that exposure “the tive breakup difference between the of a of a witness’ in testifying motivation is a friendship badly and a ended romantic rela proper important function of the consti tionship, whether that relationship romantic tutionally protected right of cross-examina was sexual or long not. As has recog been Alaska, tion.” Davis v. 316-17, 415 U.S. nized, Rage, “Heav’n has no like Love to (1974). 94 S.Ct. 39 L.Ed.2d 347 Hatred Congreve, turn’d.” William The Through cross-examination, an accused can (Jacob 1703) Mourning Bride 39 Tonson “expose jury to the from which facts (1697). We have no doubt that the romantic jurors ... could appropriately draw infer relationship nature of a “special has a rele relating ences reliability of the wit vance” to motivation allowing such that addi Id. at 94 ness.” S.Ct. A limita tional cross-examination that area is not a tion presentation on accused’s of bias “opportunity mere ... point to hammer th[e] may evidence be a violation of the Sixth jury.” Carruthers, home to the 64 M.J. at right Amendment to confront witnesses. (citation omitted). quotation 344 marks question is whether jury “[a] reasonable might have significantly received a different during claimed her on impression of credibility [the witness’s] had the motion in limine that her permitted [defense pursue counsel] been beyond with HM2 C went friendship, to a

353 403[,] applying [M.R.E.] wide discretion relationship that lasted and romantic military judges less gives ... Court [t]his lived months, time she during which four bal articulate their they fail to had been deference If the members HM2 C. with United record.” ancing analysis on the romantic rela- of given evidence (C.A.A.F. Manns, 54 Appellant, M.J. HM2 C and tionship (citations 2000) im- marks omit different significantly quotation have had a might con- credibility. ted). military judge In the of HM2 C’s pression sour, relationship turned of or conclusions findings of fact text of a romantic make case, in which HM2 of raised the Gov objections law about 403; been credible could have Appellant, C framed 611 and M.R.E. R.C.M. under ernment panel. arguments. Because merely recited their he analysis, we his to articulate of this failure course, wide judges retain “trial Of judge’s ruling defer less accord Clause the Confrontation latitude insofar assess the record to will examine ence and limits on impose reasonable is concerned that of the CCA. Unit his decision both on concerns based cross-examination (C.A.A.F. Bins, 85-86 ed States harassment, prej things, about, among other 1995). issues, the witness’ udice, confusion repetitive is interrogation that safety, or the witness Harassment Arsdall, Van relevant.” of only marginally case, the In this 106 S.Ct. 1431. U.S. ruling reiter judge’s acknowledged that request he use ated the Government’s right to confront Amendment had a Sixth 611(a)(3) con “to authority M.R.E. under his a sexual ruled but interroga scope and mode of trol the not admissi them was relationship between of wit tion, the harassment prevent [and] 611, both M.R.E. 403 and under M.R.E. ble rule, federal the identical Like nesses.” by the cited the concerns which reflect judgment under “calls for a M.R.E. 611 See M.R.E. in Van Arsdall. Supreme Court interroga whether particular circumstance military judge to decide (requiring em or undue entail harassment tion tactics value of evidence probative whether advisory Fed.R.Evid. barrassment.” danger outweighed “substantially note, reprinted in 28 Charles committee’s issues, prejudice, confusion unfair Gold, Federal Wright & Victor James Alan members, by consider or misleading the (1993). In this 320 and Procedure Practice time, or need delay, of of waste ations undue findings military judge made no the evidence”); of cumulative presentation less would suffer that HM2 C likelihood about the 611(a) military judge to (allowing M.R.E. as or harassment embarrassment from undue interrogating and order of the mode control presenta the of cross-examination a result witnesses, “protect including [them] any see Nor do we evidence. of bias tion embarrassment”). undue harassment or counsel that defense in the record evidence in a to conduct cross-examination planned ruling that military judge’s bias A From embarrassing manner. threatening or for an is reviewed is inadmissible evidence has bias evidence standpoint, all practical a Moss, v. States United of discretion. abuse witness; af to embarrass potential some (C.A.A.F.2006). 233, For 236 63 M.J. all, attempting to show ter counsel discretion, be it must of abuse ruling to be an promoting and is lie has reason to opinion”; mere difference than “more “ lying. witness is fact that the the inference fanciful, rather, 'arbitrary, clear be it must ” Williams, 40 M.J. v. States See United ‘clearly erroneous.’ ly unreasonable’ definition, (C.M.A.1994) effective (“By McElhaney, 54 M.J. v. United prejudicial be should evidence impeachment (C.A.A.F.2000) (quoting United States 130 cross-examined.) (empha being (C.A.A.F.1997); to a witness” Miller, Unit 65 46 M.J. Moreover, 611 while M.R.E. (C.M.A. original). Travers, sis 62 ed States limita- impose military judge permits a enjoys 1987)). military judge Although “[a] 354 length

tions on the and details of cross- finding that military judge “exceeded his examination, it does purport not authority authorize usurped the members’ role” preemptively shutting the completely door on when he decided for himself whether otherwise relevant cross-examination. See witness was biased for proffered the reason Jones, United States v. 49 by M.J. appellant). (C.A.A.F.1998) (noting military that a judge has wide latitude to restrict cross-examina- Danger prejudice “ unfair ‘only tion after there permitted has been argument third main offered right matter of sufficient cross-examina- ” Government, not but recited in mili (quoting Lindstrom, tion’ United States v. tary judge’s ruling, was that (11th evidence of a Cir.1983))). 698 F.2d homosexual relationship prejudicial was too military judge’s use of M.R.E. 611 fore- to be admitted. It was argument close cross-examination into a romantic the CCA credited its decision upholding or sexual relationship without evidence of ruling of the military judge, concluding potential harm was an abuse discretion that the judge did not err in exclud under these circumstances. ing the evidence due prejudicial to “the im pact of evidence that would have been of a Waste time or issues confusion of particularly inflammatory nature in a trial The Government also asserted that court-martial.” 2008 CCA LEXIS the uncertainty over whether there was a 53, *10, 2008 WL at *4. This homosexual relationship between Appellant conclusion supplied a rationale for mili and HM2 “disputed C was a mat collateral tary judge’s ruling that ter, which may involve the conflicting testi himself did and, further, articulate it mony witnesses, of several leading to a waste inappropriately generalized focused aon of time and a confusion issues for the amorphous “prejudicial impact” without iden jury.” Although found tifying who or what prejudiced. would be Id. there conflicting evidence on the (citing as of prejudicial impact the “ existence of a homosexual romantic relation ‘high degree of antipathy to homosexuality ” ship between Appellant he made in the armed forces’ as congres reflected in no factual findings any delay about or confu sional findings supporting mandatory dis sion that could result from the cross-exami charge of most servicemembers who engage nation of HM2 C presentation or the of ex in homosexual conduct (quoting Phillips, 52 608(c) trinsic evidence under M.R.E. (Effron, J., M.J. at 273 dissenting))). question. record, From a review of the note that planned defense counsel to ask First, the term “unfair prejudice” HM2 C about and, the relationship she the context of M.R.E. “speaks existed, denied it to ask two additional wit capacity of concededly some relevant evi nesses, one of ultimately whom testified at dence to lure the declaring into factfinder the court-martial. The sup record does guilt not ground on a proof from specif different port military the judge’s decision to take the ic to the charged.” offense Old Chief questions ultimate that States, relation 172, United 180, 519 U.S. —whether 117 S.Ct. ship existed and whether it led HM2 C to (1997) 136 L.Ed.2d 574 (analyzing the away from the Having members. purpose found behind lie— Fed.R.Evid. which is that made a threshold showing 403) identical to M.R.E. (emphasis added); there was “some evidence” of such a relation also see advisory Fed.R.Evid. 403 commit ship, it was members, for the (“‘Unfair as the triers of tee’s note prejudice’ [Fed. within fact, to decide if a relationship existed and R.Evid. 403] means tendency undue to its end caused HM2 C to be biased or to suggest on an basis, decision improper com misrepresent. Bins, (not See 43 M.J. at monly, 85 though not necessarily, an emotional ing that it is one.”). the military judge’s duty to M.R.E. 403 prejudice addresses to determine whether there is “some evi integrity the the process, of trial preju dence that tend[s] to a establish” particular fact dice to a party witness. or this

355 preju- for potential on the findings ed evidence based military judge made no the accused accused because the “was trial dice to the prejudice to the potential to related of of the evidence waived proponent created evidence process that could be tendency for mem adverse inferences from homosexuality, objection as a to such evidence”). or to Finally, the witness we note that to disbelieve bers either proper a basis. guilty without upon language find decision relied CCA relationship, an interracial In the context of opinion Phillips to conclude dissenting “[sjpecu- recognized Court Supreme prejudicial. was too that the evidence Col- jurors’ biases lation to the effect racial *10-*11, as lier, at 2008 2008 CCA LEXIS justify of cross-examination cannot exclusion Phillips, at *4. The dissent WL strong potential to demonstrate with such however, possibility that foreclose the did not testimony.” falsity Ol witness’s] of [the relationship could of a homosexual evidence 227, 232, 109 Kentucky, U.S. S.Ct. den v. 488 Phillips, 52 M.J. at 273 See be admissible. (1988). Any conclusion 513 102 L.Ed.2d (Effron, J., (recognizing that “a dissenting) predisposed be factfinders would pre-dates relationship that both or against either HM2 C marriage, regardless of sexual post-dates a similarly speculative. case would have been orientation, on the potentially relevant is presumed to follow a are Members marriage is a of whether question to consider judge’s instructions evidence sham”). to purpose, such as bias or motive proper a military judge’s ruling lacked Because the or personal and not let beliefs misrepresent, basis, supportable legal an articulated about feelings affect their determinations discretion, thus an abuse Taylor, credibility. United States specula- was based on of the CCA decision (C.A.A.F.2000). 195, 198 to prejudicial impact unrelated about tion findings judge,2 any specific

Second, placed the CCA’s decision limitation on cross-examina- find that the military con emphasis on the unwarranted was a bias evidence violation tion related it based its conclusion text when confronta- Amendment Sixth recognize prejudice. unfair We potential for rights. manda tion subjecting homosexuals to policy in, engaged have tory separation if beyond B. Harmlessness in, engage homosexual solicited another a reasonable doubt 654(b) (2000). However, § 10 acts. U.S.C. er Having found constitutional unfair per se indication of policy is not ror, whether that error question remains military justice system. prejudice within beyond a reasonable doubt. was harmless military’s not allowed the This has Court 18, 24, California, 386 U.S. Chapman v. homosexuality prevent evidence policy on (1967). In the case L.Ed.2d S.Ct. being against an homosexuality from used cross-examination, “the cor of limitation of Phillips, M.J. at 272-73 See accused. whether, assuming that inquiry rect trial counsel offer (permitting potential of the cross-examination damaging engaged a homosexu accused was realized, reviewing might court fully were principled no relationship). And we see al say that the error was harmless nonetheless using this prevent an accused from reason to Arsdall, doubt.” Van beyond a reasonable advantage, potential of evidence type same 1431. The burden 106 S.Ct. 475 U.S. where, here, Appellant was particularly “there is to show that is on the Government of a homosexu of the evidence proponent the possibility” that the error no reasonable pri the Government’s al with findings of Williams, to the contested “contributed at 218 mary See M.J. witness. Othuru, 65 M.J. guilty.” United military judge erred if he exclud- the (stating prejudice policy, was the refer- which Don't Tell” example, no com- the made 2. For prejudice by record of 2008 CCALEXIS the or assessment enced CCA. ments investigation separa- *10, to the risks related at *4. at 2008 WL Ask, military’s the “Don’t with tion associated (C.A.A.F.2007). 375, 377 An error has not than with the intent to testimony. influence “ contributed to the verdict when it was ‘un- considering After the Van Arsdall factors in important in relation to everything else the relation to these strategies, defense we find jury considered on question, the issue in they that on compel balance the conclusion ” revealed the (quoting record.’ Id. that Yates the limitation on cross-examination and Evatt, 391, 403, 500 U.S. beyond S.Ct. related was not harmless (1991), 114 L.Ed.2d 432 reasonable overruled on other doubt. grounds by McGuire, Estelle v. 502 U.S. charge Obstruction 72 n. 112 S.Ct. 116 L.Ed.2d 385 On the charge, obstruction the Govern- (1991)). ment had circumstantial evidence of motive relief, To find that the error here warrants (1) that following included the Appel- facts: we need not conclude that Appellant’s de- lant had been informed about the pending fense would have succeeded. Instead the (2) charges; larceny Appellant knew HM2 C inquiry should on focus whether the (3) in; had turned her the offense oc- judge’s ruling “essentially deprived Appellant curred about one month Appellant after had best “may [her] defense” that tipped have larceny been informed charges. the A civil- credibility the in Appellant’s balance favor.” ian Appellant testified admitted to her Moss, 63 M.J. at 239. Because this error that she was the one who HM2 C’s slashed was a violation of right to con- tire. Because HM2 only C was one of two witnesses, front apply the balancing test on influencing witnesses testimony articulated Supreme Court in Van charge, any damage additional to HM2 C’s Arsdall-. credibility very could have significant been importance of the the outcome of testimony witness’ the case. The other witness prosecution’s police was the civilian charge whether the testi- officer in of the mony cumulative, was presence investigation, but her testimony only or ab- estab- sence of evidence lished the fact corroborating Appellant or contra- admitted slash- dicting ing testimony tire. of the witness on detective testified that she points, material the extent of not discuss impending cross-exami- court-martial permitted, and, course, nation with otherwise HM2 C and therefore did not establish strength necessary overall prosecution’s of the motive to prove obstruction of justice. case. When defense prevent- counsel trying ed from to elicit evidence of a roman- 475 U.S. at S.Ct. 1431. tic or sexual relationship Appellant trial, Appellant’s At strategy was to dis- C, Appellant HM2 her lost best chance credit HM2 testimony through the use of showing the tire slashing was motivated bias evidence. The main offered to by anger over the end relationship, against larceny defend charges was that rather than an attempt to influence testimo- C framed for the theft of the ny. by buying tools étching tools to look like Larceny Charge squadron. came from the Due to the military judge’s limitation on cross-examina- To strength assess the of the Govern- tion of HM2 defense counsel was able to ment’s case on larceny charge, we must offer the end of a friendship as motiva- presence take into account the of the follow- tion for framing. If there had ing been no corroborating Many, evidence. although limitation, depending all, on the evi- no means HM2 C tools returned trial, dence introduced at counsel to Appellant’s command helicopter had the argued could have that HM2 squadron’s C’s distress markings on etched them. There over the breakup of her romantic relation- was that all of the recovered tools ship with inspired her to frame were squadron ones that the typically kept in Appellant. addition, stock, defense counsel some of special- them were wanted to show that slashed HM2 ized to aircraft. bags One of the of tools C’s tire out of anger breakup, over the rather squadron returned to the per- also contained take attempt unsuccessful In ad- C’s Appellant. belonging to papers sonal Appellant. As we restraining order on aout dition, testified Appellant’s coworkers one of however, emphasized, there previously have a struggling to remove her that he once saw the cross- qualitative a difference is from the heavy bag unknown contents permitted by examination squadron. a failed ro- inquiry into prohibited and the hand, larceny was case On the other mantic, relationship. When circumstantial evidence: based on into the permission to delve refused was confess; to see or claimed no one saw did not from that kind lie that would arise motive to tools; finger- and no actually take the her deprived of her best experience, she was Although a presented. was print evidence that HM2 C the members chance to show Appel- he saw witness testified Government would that she biased to the extent was heavy bag squad- from the removing a lant frame story the tools or about fabricate ron, testimony a defense there was also Appellant. heavy ratings Appellant stored witness that injury, the Government Adding insult lock- in their shared bag manuals in a duffel evidentiary limitation it very exploited the presented physical evidence er. Some of the “Are we closing argument. requested theory the case: all Appellant’s supported or some- supposed [HM2 C] to believe that new, and some appeared to be of the tools $2,700.00 on spent body else went out Al- packaging. original still their were mad at up because she’s to set this tools etched, an etcher were though some tools just logic; it’s somebody? That all strains tools, supports which was found with Transcript at of Record not credible.” bought the HM2 C that if it would seem No. 08-0495. Even Testimony at them. herself and etched tools to concoct this for an ex-friend incredible code, ei- command trial established that the logic all revenge, it not strain type of would “Bl,” by hand on marked ther “BIO” or was so. The that an would do imagine ex-lover code was a the tool itself. Because “may prohibited cross-examination was anyone knew it could marking, who simple credibility Appel- tipped the balance have Testimony also it into the tools. have etched Moss, at 239. That we 63 M.J. lant’s favor.” all, many, if not of the tools established does tipped have the balance find this could a store purchased at retail could have been should, will, at a do so mean it or even not princi- Finally, HM2 C was a Sears. for the ultimately, is rehearing. But and, person as the pal prosecution determine, this Court. finders of fact to tools, cru- was found the her who Decision III. solely was initiated to the case. The case cial otherwise, report; no one by HM2 C’s circumstances, particu- all the Under any tools were miss- had noticed that HC-8 closing larly light of the Government’s missing inventory showed ing, and no list say error was that the argument, we cannot tools. everything else “unimportant in relation to therefore, considered,” there jury of cross-examination Looking at the extent contributed possibility it a reasonable specifically permitted, was otherwise none beyond a not harmless and it was verdict nature of or sexual on the romantic allowed Othuru, at 377 65 M.J. doubt. reasonable un- Appellant, relationship. This favors omitted). (citation quotation marks cross-examination was “effective less there Navy-Marine of the United decision excluded evidence.” without the use reversed. Appeals is Corps of Criminal Court Williams, counsel at 219. Defense charges guilty both findings of C about several permitted to ask HM2 set sentence are specifications and the a she had could indicated things that have rehearing is authorized. aside and tools, including: HM2 motive to lie about had a crush on concern BAKER, (dissenting): Judge her; Appellant contribut- in which situations military judge’s deci- reviews boy- This Court and her between HM2 C ed to tensions under admissibility of evidence daughter; sion on and her HM2 C friend or between hand, probative evidence, abuse of discretion standard. United States value of the (C.A.A.F.2009). Collier, and, hand, 67 M.J. at 353 In on the other prejudice, the risk of confusion, military judge made a and waste of reason- time. The record military judge reflects that the Ap- able decision to exclude the evidence of conducted a pellant’s alleged “proper balancing test” relationship sexual with under M.R.E. give and this Court should certainly appropriate decision that was within ruling. deference to his United States v. his discretion. This Court should not re- (C.A.A.F.2000). Manns, 54 M.J. verse that decision because it would have reached a different result.

B. M.R.E. bOS analysis, military judge Based on his DISCUSSION probative found that alleged value of an “To reverse for an abuse of in- discretion relationship homosexual to show HM2 C’s volves far than a more difference ... “substantially outweighed by bias was opinion.... challenged The action must [be] danger prejudice, of unfair confusion of the clearly unreasonable, clearly ... errone- issues” and “waste of time.” M.R.E. 403. ous in appeal.” order to be invalidated on based, alia, This conclusion was inter Travers, United States v. 62 disputed nature of and HM2 C’s (C.M.A.1987) (citations quotation marks relationship. Appellant’s proffer consisted of omitted) (brackets added; ellipses origi- military her statement judge that the nal). military judge conducted Mili- relationship was Although sexual. defense (M.R.E.) tary Rule of Evidence 403 balancing counsel offered no tangible further detail or test, record, which he articulated on the evidence of a relationship, placed reasonable limits on the manner that, counsel stated “there are two other which impeach could seek to HM2 witnesses that pro- we could call that would C’s alleged based on them sexual vide extrinsic go evidence that would to her relationship. However, bias.”1 as defense counsel ac- knowledged, HM2 C denied that the relation- ship was sexual. So did HM2 daughter, A. Deference who filed an stating affidavit that the rela- majority concludes that we should “ac tionship was based on friendship and “noth- military cord judge’s ruling less defer ing more.” ence” because he failed to articulate his anal Based on presented during the information ysis on the record. 67 M.J. at 353. 39(a), Military the Article Uniform Code of military judge A required to “record (UCMJ), 839(a) (2000), § Justice 10 U.S.C. balancing analysis his to the extent that his parties’ session briefs on the Mo- may fairly exercise of discretion be reviewed Relief, Appropriate tion for appeal.” on Virgin Government Is following findings reached the and con- Archibald, (3d lands v. 987 F.2d clusions: (citation Cir.1993) quotation marks omit (cid:127) “The preliminary defense has met their ted). view, my judge’s articu burden that break-up of the rela- lation it why makes clear how and he deter tionship key between this witness and mined that evidence of an may the accused relate to motive legally was not relevant to bias allegation the witness to make the false why the M.R.E. 403 and M.R.E. 611 larceny military property.”2 outweighed any potential considerations fac (cid:127) tual relevance. The cited government presented “The parties’ arguments explore, on the one cross-examination of the accused Court-Martial, (Nov. 1. One of these witnesses was the detective who Tidewater Judicial Circuit investigated the case. 24, 2004). Findings Ruling on Government Motion In Collier, Special Limine at United States v. Arsdall, (quoting 475 by affidavit that tends to refute Delaware Van U.S. any aspect relationship.”3 673, 679, 1431, sexual 106 S.Ct. 89 L.Ed.2d 674 Davis, (1986)); 316, see also 415 U.S. at 94 (cid:127) nature this relation- “[T]he sexual of (“Subject always 1105 to the broad S.Ct. sufficiently ship is not relevant.”4 preclude repeti- of a trial to discretion noted, military judge The “under [M.R.E.] unduly harassing interrogation, ... tive and 403, going danger ... there’s a that there’s traditionally been al- the cross-examiner has to be a confusion of the issues because what discredit, i.e., impeach, to the wit- lowed may a trial within the trial deteriorate into is ness.”). “Generally speaking, the Confronta- a trial to whether or not there was a as guarantees opportunity tion Clause ease, relationship.” In this the risk cross-examination, effective not cross-exami- well-founded, as would be the case re- way, that is effective in whatever nation gardless the nature of the evidence of- of extent, might the defense wish.” to whatever fered, of the sensitive not less so because Fensterer, 15, 20, Delaware v. 474 U.S. 106 Indeed, information. this nature of this (1985). S.Ct. 88 L.Ed.2d 15 specter put that HM2 would be raised the C “on trial” addition to the accused. Consistent with these constitutional dic Further, military judge looked to tates, military judge adopt did not an all scope M.R.E. 611 “to control the and mode of majority nothing approach, sug or as the interrogation, prevent the harass- Rather, discretion, gests. exercising his Questions regarding a ment of witnesses.” military judge balanced the factors at hand homosexual had the risk light permitting of the law the defense “to embarrassing HM2 carried the explore to misre the issue bias and motive potential investigation separation risk of 608(c),” present, under M.R.E. and ultimate Ask, military’s “Don’t Don’t Tell” under the ly uncontested limited the evidence to evi 654(b)(1) (2000). § policy. 10 U.S.C. prejudice dence that had less risk of or Thus, military judge properly identi- Specifically, military judge harassment. permitting fied the risks associated with tes- allowed the defense to “characterize the rela timony regarding relationship, a sexual most close, emotionally tionship personal as and/or of which would exist whether the information close,” but restricted the defense pertained to a heterosexual or homosexual “open[ing] any alleged the issue of reasonably relationship. military judge acts between the witness and the accused.” substantially risks out- concluded those military judge permitted also weighed probative value of the informa- “believed counsel to ask C whether she tion. [Appellant] had a crush on As [HM2 C].” said, has

this Court has “once the defendant C. Reasonable Restriction expose motivation been allowed witness’s testifying, peripheral ‘it is of concern subject exploration A witness’s bias “is opportunity Amendment how much the Sixth trial, ‘always as discredit- and is relevant gets point to hammer that defense counsel weight ing affecting the witness and ” jury.’ home to the United States Car Alaska, testimony.’” his Davis v. U.S. (C.A.A.F.2007) ruthers, (1974) 308, 316, 94 S.Ct. 39 L.Ed.2d 347 (citation omitted). (citation omitted). However, evidence, bias evidence, any subject like to reasonable factors

restrictions “to take account Prejudice Speculation About D. Unfair ‘harassment, prejudice, confusion military judge if had meticulous- Even issues, safety, interrogation the witness’ analysis every of his ly articulated detail repetitive only marginally be] [would ” (and close), majority implies he came Kentucky, relevant.’ Olden v. 488 U.S. (1988) military judge not have could 109 S.Ct. 102 L.Ed.2d 513 Id. at 2. Id. at 1. 4. ulating reached a might apply reasonable decision to exclude the about how the members information, military judge’s well- evidence because such decision would permitted balanced decision the members to require speculation. See 67 M.J. at draw their own reasonable conclusions re- facts, 354-55. Presented with these garding animosity reasonably speculate could not HM2 C. The members heard HM2 C danger prejudice, about “the of unfair confu- out, Appellant falling had a HM2 C issues, misleading sion of the the mem- attempted restraining to obtain a order bers” and whether those considerations out- that, against Appellant, just prior evidence, weigh probative value of it incident, slashing tire argued had about military judge that seems had no discre- returning Appellant’s HM2 C property to tion whatsoever. M.R.E. 403. sugges- her. It is doubtful that an additional tion, refuted, disputed of a sexual rela- majority this case to compares Olden tionship Appellant and HM2 C Kentucky, Supreme which the Court would have caused the to members reach held that the abused his discretion different verdict. excluding evidence of an interracial sexual equally logic” It suggest “strains all that relationship “[sjpeculation based on as to the angry, vengeful go lover would to such jurors’ effect of racial biases.” 488 U.S. at extremes, “angry, vengeful but that an However, 109 S.Ct. 480. in contrast to sure, friend” would not. Id. at 349. To be it relationship at issue in Olden leap logic is a to conclude that a sexual was uncontested. Id. at 109 S.Ct. 480. relationship would drive someone to do all Further, relationship while the in Olden way this in a disintegration of a potential showed the victim’s motive to lie relationship that “emotionally close” and crime, case, Appellant’s about the as in this ordinary “closer than friends” would not. It plausible is much pre- than that thoroughly less. also sophistication discounts the sented Olden. Id. lying addition to identify members to and assess myriad ways in which crime, relationships are about the majority and the formed and broken and the hurt that results. (even posit that purchased HM2 C 215 tools Therefore, military judge reasonably con- though questionable it is whether all were cluded that information alleged about publicly purchase), available Ap- etched sexual nature of and HM2 C’s pellant’s them, command code on 65 of relationship, beyond above and mili- what the otherwise fabricated the entire crime. Col- tary admitted, judge actually was “not suffi- lier, Thus, atM.J. 356-57. under this ciently relevant.” theory, exposing perjury after herself charges, revealing an illicit sexual relation- CONCLUSION ship, risking separation service, from the Limiting questioning about a wit- HM2 C would revenge. have her This theo- ness’s sexual life absent a showing valid ry, course, presupposes also proof legal relevance is a reasonable Navy, having tools, store-bought received the right limitation on an present accused’s negligently concluded that the tools were defense and confront a witness. The government property wittingly joined judge properly used his discretion to allow conspiracy. HM2 C’s identify potential HM2 C’s bias Additionally, majority argues confusion, limiting prejudice, the while it to avoid time, waste and harassment of suggestion of a the witness. relationship would likely have made it more result, As a Navy- like the United States anger, slashed HM2 C’s tires out of rather Corps Appeals, Marine Court of Criminal I than key to interfere with the against conclude that the would too, her. Id. at 356. spec- Here rather than by excluding not abuse his discretion evi- 495700, at *4 be- LEXIS 2008 WL dence of an 2008) Appellant. (N.M.Ct.Crim.App. (unpub- Feb. tween HM2 C and United States lished). respectfully I dissent. No. NMCCA CCA

Case Details

Case Name: United States v. Collier

Court Name: Court of Appeals for the Armed Forces

Date Published: May 18, 2009

Citation: 67 M.J. 347

Docket Number: 08-0495/NA

Court Abbreviation: C.A.A.F.