UNITED STATES, Appellee, v. Shawn T. GOLDWIRE, Airman Basic, U.S. Air Force, Appellant.
No. 00-0349/AF. Crim.App. No. 32840.
U.S. Court of Appeals for the Armed Forces.
Argued Nov. 9, 2000. Decided June 14, 2001.
55 M.J. 139
Sullivan, J., filed opinion concurring in the result.
Baker, J., filed opinion concurring in the result.
For Appellant: Captain Patience E. Schermer (argued); Lieutenant Colonel James R. Wise and Major Stephen P. Kelly (on brief); Lieutenant Colonel Timothy W. Murphy.
For Appellee: Captain Suzanne Sumner (argued); Colonel Anthony P. Dattilo, Lieutenant Colonel Ronald A. Rodgers, Major
Chief Judge CRAWFORD delivered the opinion of the Court.
Contrary to his pleas, appellant was convicted by officer members at a general court-martial of rape and wrongfully possessing alcohol while under 21 years of age, in violation of
WHETHER THE MILITARY JUDGE ERRED BY PERMITTING MASTER SERGEANT GREEN TO TESTIFY AS TO HIS OPINION AS TO APPELLANT‘S CHARACTER FOR TRUTHFULNESS.
For the reasons stated herein, we hold that the military judge did not err by permitting Master Sergeant Green to testify as to appellant‘s character for truthfulness.
FACTS
On July 5, 1996, appellant and two of his friends, Airman B and Airman M, invited Airman K, the female victim of the rape, to attend a party at Airman B‘s off-base apartment the following day. Airman K had never spoken to appellant before that night. Nevertheless, she agreed to attend the party because she thought it would be fun.
The next morning, Airman K met appellant and his friends to accompany them to the party. Their plan was “to go to Airman [B‘s] apartment and drink.” On the way to the party, the group stopped at a liquor store where Airman K bought beer, a bottle of vodka, and orange juice. The party started that morning and continued throughout the day. At one point, Airman K went to Taco Bell for lunch with appellant. On the way back, they stopped at a second liquor store and purchased more alcoholic beverages for the party. The in-party activities consisted of drinking, listening to the radio, and playing cards and dominoes.
During the course of the day, appellant became very intoxicated, to the point of becoming ill. Airman K and Airman B found appellant lying on the bathroom floor and helped him into the bedroom. By evening, Airman B, Airman M, Airman K, and appellant remained at the apartment. Airman B and Airman K began to play a drinking game while Airman M watched. During the game, Airman K consumed orange juice and vodka. After the game, Airman K sat at one end of the couch with Airman M at the other end, and Airman B sat in a chair. The three airmen fell asleep. At that point, appellant was still in the bedroom.
Airman K testified that the next thing she remembered was waking up on the bed in the bedroom with appellant on top of her. She was naked from the waist down, and her shirt and bra were pushed above her breasts. She said appellant‘s legs were on top of hers, and his hands were at either side of her waist.
Airman K testified that she attempted to push appellant away when someone grabbed her wrists and pulled her arms back against the bed. She stated that she started fighting and screaming and telling appellant to stop, and that is when appellant started having sex with her. She remembered appellant having sex with her for about a minute while she was telling him to get off of her and let her go. Airman K also testified that she pushed appellant and he jumped off the bed. Airman K got off the bed and put on some pants that were on the floor. She testified that appellant tried to block her from leaving the room, but she hit him and got outside. She headed for the guard shack with appellant trying to get her to come back to the apartment. Someone passing the area stopped and gave Airman K a ride back to her squadron.
Airman K returned to her dormitory room at approximately 10:00 p.m. When her roommate opened the door, Airman K was holding her pants with one hand and crying hysterically. After describing what hap-
Airman B testified for the Government under a grant of immunity. He testified that he woke up that evening with his hand on Airman K‘s leg. He noticed that Airman M seemed to be “half awake.” Airman B proceeded to touch Airman K‘s breasts under her clothing. Airman M did the same. Airman B then exposed Airman K‘s breasts by pushing her shirt up over her breasts. He then unbuttoned and unzipped Airman K‘s jeans. He and Airman M proceeded to remove Airman K‘s jeans and underwear. At that point, appellant came out of the bedroom and began to fondle Airman K‘s breasts, rub her legs, and kiss her neck. There was no initial response from Airman K, but she began to rub appellant‘s neck and back when he started to have intercourse with her. Airman B saw Airman K wake up and tell appellant to stop. Appellant did so. At that point, appellant picked up Airman K and took her into the bedroom. Shortly thereafter, Airman K left the apartment followed by appellant.
Appellant did not testify at trial. Special Agent Donald I. Phillips was called by the Government and testified that following a rights advisement, appellant gave an oral statement in December, approximately five months after the incident with Airman K. In the statement, appellant admitted having sexual intercourse with Airman K. Appellant also stated that prior to having sex with him, Airman K had not said anything, and her eyes were closed. However, he claimed there were a couple of times when his penis came out of Airman K‘s vagina and she reinserted it.
During cross-examination of Agent Phillips, defense counsel established that a number of facts contained in appellant‘s statement were consistent with a consensual act of intercourse: Airman K was not so intoxicated that she could not participate in foreplay; Airman K rubbed the back of appellant‘s neck prior to sexual intercourse; twice she asked appellant to stop and he did stop; and appellant told Agent Phillips that when they completed having sexual intercourse, they talked.
Later, the military judge, after a timely objection by trial defense counsel, permitted appellant‘s first sergeant, Master Sergeant (MSgt) Gary E. Green, to offer his opinion of appellant‘s character for truthfulness. MSgt Green testified as follows:
Q. Sergeant Green, in your duties as first sergeant have you had contacts with the accused?
A. Yes, I have.
Q. And, based on those contacts with the accused, have you been able to form an opinion as to his character for truthfulness?
A. Yes, I have.
Q. What is that opinion?
A. That he is not truthful.
After admitting the opinion character evidence from appellant‘s first sergeant, the military judge gave the following cautionary instruction to the members:
Members of the court, with regard to the testimony you heard yesterday from Sergeant Green, Master Sergeant Green was permitted to express his opinion of the accused‘s character for truthfulness for your evaluation in considering the weight you‘ll accord the accused‘s out of court statements as related in the testimony of other witnesses. As defense counsel attempted to point out in cross-examination of Master Sergeant Green, and as I subsequently confirmed with Master Sergeant Green after you were excused for the day, his opinion was based solely on one instance where the accused lied to a detail supervisor about his whereabouts. So you should consider that fact in determining the weight you‘ll accord the opinion of Master Sergeant Green. In any event, you may not infer from his opinion or it‘s basis that the accused is a bad person and must therefore have committed the offenses here charged.
Appellant further argues that even if such character evidence was admissible, his first sergeant lacked an adequate foundation to offer an opinion as to appellant‘s character for truthfulness. He points out that this Court in United States v. Toro, 37 MJ 313, 317 (CMA 1993), concluded that “[t]o lay a proper foundation for opinion evidence, the proponent must show that the character witness personally knows the witness and is acquainted with the witness well enough to have had an opportunity to form an opinion of the witness’ character for truthfulness.” He argues that MSgt Green lacked such a foundation.
DISCUSSION
We review the decision by the military judge to admit the first sergeant‘s opinion evidence under the abuse of discretion standard. United States v. Johnson, 46 MJ 8, 10 (1997).
This is a case where the defense counsel attempted to advocate his cause through the use of his client‘s out-of-court statement to an investigator. That statement contained both exculpatory and inculpatory facts. Trial defense counsel elicited appellant‘s exculpatory statements through his zealous cross-examination of a government witness, and in so doing, suggested to the factfinder that the exculpatory statements deserved more weight than appellant‘s inculpatory statements. Proper resolution of the granted issue requires us to discuss a number of interlocking rules of evidence and theories, to include
1. Rule of Completeness
When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require that party at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
The rule of completeness is a rule that governs the scope of evidence. It particularizes the type of evidence (written and oral), the relationship between when all or part of a written or oral statement may be introduced, and the operation of procedural rules.
Moreover, in Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 172, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988), the Court indicated that
The rule of completeness must be examined in terms of the common law rule and the authority of the judge under
Under
Here, the defense did not require the prosecution to introduce a part of the statement during its direct examination. Rather than invoking
The defense argues that since they introduced the rest of the statement through their cross-examination of Agent Phillips, that precluded the Government from relying on
Thus,
It must be recognized that some states have broadened their counterpart to
If only part of an alleged admission or confession is introduced against the accused, the defense, by cross-examination or otherwise, may introduce the remaining portions of the statement.
The Drafters’ Analysis of this rule states:
Rule 304(h)(2) allows the defense to complete an incomplete statement regardless of whether the statement is oral or in writing. AsRule 304(h)(2) does not by its terms deal only with oral statements, it provides the defense in this area with the option of usingRule 106 or304(h)(2) to complete a written statement.
Manual, supra at A22-13. Accordingly, under the Military Rules of Evidence, appellant‘s entire statement was properly before the factfinders.
2. Impeachment of Non-Testifying Declarant
When a hearsay statement, or a statement defined in
Mil.R.Evid. 801(d)(2)(C) , (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if [the] declarant had testified as a witness.
By its terms,
The first part of the rule would encompass a “hearsay” admission by appellant. When considering adoption of
Although it was able to find no military cases that address this exact issue, the Court of Criminal Appeals resolved that it was not reasonable to conclude that attacks on the credibility of the speaker‘s statement are excluded merely because the statement is admitted as made by a party-opponent. 52 MJ at 733. In so doing, the lower court relied on the rationale of the Senate Judiciary Committee, as well as the holdings of two federal Circuit Courts that previously confronted the very same issue. Id.; United States v. Shay, 57 F.3d 126, 132 (1st Cir.1995); United States v. Velasco, 953 F.2d 1467, 1473 (7th Cir.1992). We agree with both the Court of Criminal Appeals and the First and Seventh Circuits. When the defense affirmatively introduces the accused‘s statement in response to the prosecution‘s direct examination, the prosecution is not prohibited from impeaching the declarant under
3. Character Evidence
Responding to appellant‘s assertion that the first sergeant lacked a sufficient basis to provide an opinion on appellant‘s character for truthfulness, the court below found as follows:
In reviewing the facts here, the evidence demonstrates that the first sergeant‘s opinion was based on his personal knowledge that the appellant lied to his supervisor, not speculation. The lie involved the appellant‘s military duties and was a distinct offense under the UCMJ. The appellant lied to his supervisor beforehand, in order to avoid duty. The lie occurred after the appellant was already under investigation for rape. Under these circumstances, we find the first sergeant was qualified to offer an opinion concerning the appellant‘s character for truthfulness.
The unique nature of military society does not justify a finding that a single lie would constitute an adequate basis for opinion testimony regarding a witness‘s character for truthfulness. The standard is whether the circumstances—including the circumstances surrounding a particular aspect of military life—provide a sufficient basis to conclude that a single statement is sufficient to form an opinion as to credibility. The first sergeant was acquainted with appellant through his role as first sergeant and as an investigator and could form an opinion of appellant‘s character through that exposure. In this case, before the judge allowed the witness to testify in front of the members, he limited the testimony and excluded the details that were used to establish an adequate foundation.
MSgt Green testified out of the hearing of the members that he was appellant‘s first sergeant at the 338th Training Squadron, Keesler Air Force Base. He addressed appellant‘s involvement with underage drinking at his off-post apartment. He saw appellant
We hold that the prosecution established an adequate foundation for the first sergeant‘s opinion as to appellant‘s untruthfulness, and that the judge correctly precluded specific instances of misconduct to be introduced to support that opinion.
DECISION
The decision of the United States Air Force Court of Criminal Appeals is affirmed.
SULLIVAN, Judge (concurring in the result):
Appellant was charged with the rape of Airman Christine K in the summer of 1996 at the off-base apartment of Airman B in Biloxi, Mississippi. The victim testified at this court-martial, but appellant did not. His version of what happened that night was contained in oral statements to police investigators, which were evidenced at trial and partially corroborated by the testimony of Airman B. Appellant challenges on appeal, as he did at trial, the military judge‘s decision to permit the prosecution to admit opinion testimony from Master Sergeant Green that he (appellant) had a poor character for truthfulness. (R. 303-04) The Government responds that, even though appellant was not a witness at this court-martial (see
The particular question before this Court is whether Master Sergeant Green‘s testimony concerning appellant‘s poor character for truthfulness was admissible under
Rule 806. Attacking and supporting credibility of declarant
When a hearsay statement, or a statement defined in
Mil.R.Evid. 801(d)(2)(C) , (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if [the] declarant had testified as a witness.
Since no out-of-court statement by appellant‘s representative, agent or servant, or co-conspirator was admitted in this case under
Turning to the record of trial, I note that the alleged victim testified she awoke in a bed in Airman B‘s bedroom, with appellant on top of her. (R. 206-07) She testified that someone grabbed her wrists, and appellant proceeded to engage in sexual intercourse with her despite her verbal protests and physical resistance. (R. 208) She further stated that appellant stopped after a minute, and she attempted to leave the room. Appellant prevented her, but she ultimately succeeded in leaving. (R. 209)
Appellant did not testify in this case, but evidence of his out-of-court statements was admitted which asserted that he engaged in sexual intercourse on a couch in Airman B‘s living room with the victim, who he discover-
Hearsay, as defined in the military rules of evidence, is “a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
Nevertheless, the defense adduced additional testimony from SA Phillips concerning appellant‘s statement on December 17, 1996. (R. 182-86) He testified on cross-examination that appellant disclosed other details about this incident, i.e., appellant said before engaging in sexual intercourse that he kissed the alleged victim for a period of time, and she rubbed his neck. The defense also adduced testimony that appellant said he forthrightly confronted the confused complainant outside the apartment after the incident and asked her if she recalled engaging in sexual intercourse with him, and that she physically assisted during the sexual act. (R. 187)
In my view, the defense was affirmatively using the evidence of appellant‘s out-of-court statements to SA Phillips for the truth of the matters asserted in those statements. See
The bottom line as you look at the evidence in a number of different ways, and the Government says that this is the road that you‘ve got to follow, this is what all the evidence shows, there‘s another road, and perhaps a road a little bit less traveled, that goes off of that, and that‘s a road you‘ve got to go down to look at all the evidence and say, “Well, we‘ve got some doubts here.” Go down that road with all those doubts. Because the bottom line, members, is what happened that evening, yes, was unfortunate. It was very unfortunate. And you have a case here where you have two people realistically who really believe what happened. Airman Knox isn‘t up here lying to you. She‘s telling you things as best as she can remember, as best as she can piece them together. But Airman Goldwire, and his statements to Airman Phillips, to the OSI, likewise is telling you he thought he had consent, and for this 19-year-old airman it was reasonable. Thank you.
(R. 387)(emphasis added).
In view of appellant‘s affirmative use of the out-of-court statement for hearsay purposes, I conclude impeachment by evidence of his poor character for trustworthiness was admissible under
In closing, I must note my disagreement with the majority‘s discussion and use of
Admittedly, appellant did argue to the military judge that he was entitled to question SA Phillips on the remaining portions of his December statement to avoid misleading the members that it only contained admissions helpful to the Government. (R. 186) However, he used this evidence to exculpate himself based on the truth of the facts asserted in those portions of the statement. It is the use of these statements for this purpose which exceeds the scope of the common law doctrine of completeness. See United States v. Collicott, 92 F.3d 973, 982-83 (9th Cir.1996) (remaining exculpatory portions of statement containing admissions previously evidenced by Government are inadmissible hearsay, even if permitted under
I believe
I would hold that admission of appellant‘s statements under
BAKER, Judge (concurring in the result):
While I concur in the result reached by the majority, I write separately because I believe that reference to
In sum, the typical situation will be that encountered by the defense counsel in this case, where the remainder of an accused‘s oral admissions are at issue. It is difficult to believe that counsel would have been contemplating the intricate intersection between
Finally, I join Judge Sullivan in his analysis of