*1 STATES, Appellee, UNITED
Rodney HALFORD, D. Airman First
Class, Force, Appellant. U.S. Air
No. 98-0325.
Crim.App. No. 32280. Appeals
U.S. Court of
the Armed Forces.
Argued Dec. 1998.
Decided June 1999.
Gierke, J., opinion dissenting filed in
part, concurring part, in concurring in
the result.
CRAWFORD, J., delivered the Court, COX, C.J., and SULLI- EFFRON, JJ., joined. GIERKE, VAN and J., opinion dissenting part, filed an concur- ring part, concurring in the result. *2 403 evening, went that same C Later appellant. H. Kohrt Douglas Appellant: For Colonel (on C heard two others. When Major L. Hubbard H’s room with (argued); Carol to brief). intercourse engaged in H had sexual and came into the room appellant, C with Arnold Major A. Appellee: Kenneth For Then C shoving hitting her and her. started P. Dattillo and Anthony (argued); Colonel raped Appellant was others H. and the two (on Breslin J. Colonel Michael Lieutenant involving during the C. present incident not brief); Brenda J. Hollis. Colonel respect to rape report H not file with Judge CRAWFORD delivered following until incident later either of the Court. of a hospitalized because she week when Contrary pleas, appellant his was con- to being at the drug While treated overdose. rape, false offi- by officer members of victed reluctantly had what hospital, she revealed statement, swearing, and viola- cial false evening rapes. transpired on the 134, 120, 107, Uniform of Articles tion statements, coun- During opening defense 920, Justice, §§ Military 10 USC Code theory be H could not set forth their sel 934, convening 907, respectively. The “inconsistencies, retrac- believed because a dishon- authority approved the sentence of physical The and lack evidence.” tions confinement, years’ total discharge, orable by vari- that H was seen defense contended forfeitures, the lowest en- and reduction to at psychologists psychiatrists ous Appeals The grade. Court of Criminal listed said hospital concerning “problems” she affirmed. having in inci- dealing these she was with following granted review on the issues: We visits, uncooper- During these H was dents. I. THE MILITARY WHETHER and refused to talk the incidents. ative about ERRED THE JUDGE BY ADMITTING trial,
ACUTE STRESS TESTI- DISORDER evidence At the Government offered DR. BY FAILING MONY OF BYRNES Byrnes, psychologist who from Dr. Steven BALANCE THE VAL- TO PROBATIVE H. The that H’s treated Government OF SUCH AGAINST UE TESTIMONY conduct and to non-verbal statements THE PREJUDICIAL IMPACT. avoidance, including Byrnes, her emotional II. THE MILITARY withdrawal, WHETHER give crying, to de- and refusal ERRED JUDGE BY PROHIBITING tails, result of disorder. were the acute stress THE DEFENSE FROM COUNSEL objected testimony as The defense “that his irrelevant____ DR. THE TESTING BASIS OF prof- diagnosis is We have to EXPERT BYRNES’ DURING OPINION we are not fered to the Government that CROSS-EXAMINATION. any If intending call witnesses. to below, did, reasons set we find For the forth I do then that conflict- indeed we believe adversely on both issues. ing diagnosis proper would be for rebuttal. diag- any not point At do believe that this
FACTS
by
is
the Gov-
nosis
Later,
rape
Friday night, April
occurred on
defense
The
ernment’s case-in-chief.”
victim, H,
21,1995.
Pope
The
had arrived at
again
that Dr.
indicated
Base,
Carolina, days
North
earli-
Air Force
diagnosis,
bolstering
“regarding
pure
etc. is
dorm,
she moved
she was
er. When
into the
relevant,
regard to
especially
not
and is
C,
manager,
first met
assistant dorm
any symptomalogy
regards
[sic]
[sic] to
briefing
her
gave her an initial
and took
who
he has treated---- We don’t believe
others
wing.
her
April
his
On
C invited
under
hearsay
exception
is a medical
there
party.
ato
argument I
only
That is
criteria either.
Sir,
have,
but we
the medical
believe
party, at
H
too
After the
consumed
hearsay
diagnosis
should
alcohol,
much
she returned to her dorm
object on
did not
en- be allowed.”
appellant, where the
intercourse
sexual
Byrnes’ testimony,
under
charge against
basis that
rape
that resulted
sued
Courts-Martial,
Manual for
defense,
When the
in the first
in
(1995 ed.),
would be
stance,
substan-
credibility by
attacked
noting
tially
prejudicial
probative.
more
than
inconsistencies, retractions, and refusal
judge found that the evidence was admissible
crime,
talk about the
the Government was
exception.
under the medical
explain
allowed to
that these behavioral char
*3
many
acteristics occur
cases of non-con
prosecution
The defense contends that the
See,
sensual sexual
e.g.,
encounters.
United
Byrnes’ testimony
offered Dr.
to show that H
(1998)
Rynning,
420,
States v.
47 MJ
422
rape
“acted like a
victim.” Final Brief at 5.
(When appellant
argues
raised the issue that
judge
defense also
late
the
incomplete
abused his discretion
reporting
under Mil.R.Evid. 403.
showed lack of
credibility, the Government “was entitled to
argues
Government
if
even
the
principal
rehabilitate their
by
witness
ex
expert testimony
inadmissible,
receipt
its
plaining how her
necessarily
behavior did not
into evidence should be considered harmless.
credibility.”);
undermine her
Appellant’s
10,
May
admissions in his
1995
Pollard,
(CMA
41,
1993) (reluc
v.
38 MJ
48
statement, coupled
testimony
with the
of the
report);
Houser,
tance to
United
v.
States
victim and the other
placing appel-
witnesses
supra (delayed
Also,
report).
Byrnes
did
lant
the
provided ample
victim’s
express
not
credibility
an
as to
rape.
or
Additionally,
evidence of
the
judge gave limiting
that the
instructions on the
aforementioned factors
use of
showed that
the crime was committed.
above,
object
As noted
the defense
DISCUSSION —ISSUE
Byrnes’
ed that Dr.
testimony
pure
bol
Expert
testimony in sexual abuse
stering and not admissible under Mil.R.Evid.
may
many
cases
expert
take
forms. The
803(4) or the 700 Rules. The defense did not
may offer evidence that
the characteristics
object under Mil.R.Evid. 403. Mil.R.Evid.
by
demonstrated
diagno
the victim lead to a
103(a)(1) requires
timely objection
“a
...
“rape-trauma syndrome
sis of
...
[which] is
stating
specific ground
objection,
the
of
if the
probative ...
on the
of
issue
consent
the
specific ground
apparent
was not
from the
Carter,
428,
victim.” United States v.
26 MJ
object
context.” The failure to
under Mil.
(CMA 1988). Or,
expert
429
may testify
the
R.Evid. 403 constitutes
waiver
the absence
that certain behavioral characteristics are
plain
Nelson,
error. United States v.
25
“rape
consistent with a
trauma model.”
(CMA
110,
1987),
denied,
MJ
112
cert.
484
Houser,
392,
United
v.
States
36 MJ
394-96
1061,
1016,
U.S.
108 S.Ct.
(A)
opinions in the
case. The
expert,
doctors’
same
qualifications of the
Mil.
(B)
objection, recommending
702;
subject
sustained the
matter of
R.Evid.
bring
702;
in those doctors to
testimony, Mil.R.Evid.
opinion.
(C)
give a different
the basis
(D)
703;
legal
relevance
Mil.R.Evid.
they
proffered
never
Defense counsel
evidence,
402;
Mil.R.Evid.
of the
read
if he had
all
wanted to ask
(E)
evidence,
reliability
of the
Unit
records, if
was aware
of H’s medical
he
(CMA
Gipson,
On defense perceived expert, by or made known to the at attempted impeach Byrnes’ Dr. counsel hearing. type or If a reason- before the suffering that victim was from experts ably upon by particular in the relied upon acute stress disorder. The defense asked forming opinions field or inferences whether he was aware that the victim saw subject, the facts or data need not be Cheevers, psychiatrist Dr. at the hospital. in evidence.” Absent admissible prosecutor objected. point, foundation, At At a this it was not that established * 39(a) session, subsequent opinions “type Article defense other doctors’ were of Thus, explained they upon im reasonably by experts.” counsel that wanted to relied peach Byrnes not abuse Dr. based on the inconsistent we hold that did his Byrnes, Cheevers, diagnoses precluding Dr. discretion in cross-examination of Dr. opinions Drs. proffered Dr. Dr. about the Cheev- Nelson. that the ers and Nelson. diagnosed had H as other two doctors suffer disorder, ing personality borderline but from of the Air decision they specifically suggest that had Appeals is Force Court of Criminal affirmed. stress ruled out acute disorder. GIERKE, part, Judge (dissenting in proffered The defense Cheevers’ part, concurring concurring in opinions presumably and Dr. Nelson’s were result): they file. Defense counsel I, disagree Byrnes’ respect to test for Dr. to Issue wanted basis With majority’s conclusion that defense eoun- asking him about the other Justice, 839(a). Military § * Code of 10 USC Uniform specific room,
sel’s failure to make a reference to Shayne pushed returned to his but any Mil.R.Evid. 403 open appellant waived error the ad- door and told to leave. After left, mission of Dr. In Shayne United the victim told that she Harris, (1997), raped, States 46 MJ had been this but that she did not intend hearsay objection report “drinking Court held that a it because she was suffi- under age.” cient Shayne departed to avoid forfeiture of a She testified that Mil.R.Evid. 403 view, my objection sleep. In and she went to issue. the defense Byrnes’ testimony was not relevant was The victim testified further at about preserve sufficient to the issue whether it a.m., 2:00 or 2:30 Chris and two other men satisfy had sufficient relevance to came to her where Chris accused Furthermore, 403. because the ing Rodney [appellant].” She testi- “f — judge failed to set out his reasons for deter- fied that she had not seen the other two men mining value of Dr. Finally, before. she testified that Chris hit Byrnes’ testimony outweighed prejudicial its bed, her in the ribs and threw her onto the impact, ruling his is not entitled to the defer- gang raped and that all three men her. normally ence judge’s accorded to a rulings on this testi- Based under Mil.R.Evid. 403. Id. mony was not relevant to the victim’s failure view, my In *5 military erred report appellant’s conduct. The evidence admitting The victim of record reflects that Chris and his two Chris, dormitory testified that the manager, primary friends were the source of her trau- with whom ongoing she had an sexual rela- According ma. to her own her tionship, party invited to a in the dormi- report appellant’s failure to misconduct was tory friend, Shayne. room of his She testi- report due to her reluctance to that she had fied she consumed three or four wine drinking party been alcohol at a when she during period coolers of about an hour and underage, not that she was traumatized. half, spiked and that Chris her last drink view, In my prejudicial impact blaming with Jim Beam bourbon. She testified that appellant for the emotional distress inflicted she became so intoxicated that she had diffi- by outweighed Chris and his friends min- culty standing, and that she imal value of the evidence. drink, consuming spiked Chris after be- agree however, I majority, give “straight cause he would not her a an- admission of the was harmless er- swer” Appellant whether he was married. ror, light of the other evidence that helped room, dormitory her back to her properly admitted judge’s and the asleep where she fell on the sofa. She testi- limiting instructions. later, fied appellant sometime moved bed, her, her onto the undressed and had II, respect agree With Issue with the intercourse appellant with her. While was majority military judge did not her, top on Shayne she heard Chris and by refusing abuse his discretion to allow the outside her and she called out to Chris. “smuggle” opinions defense to of Drs. Shayne Chris and push open tried to the Cheevers and Nelson. See United States v. door, Harris, but held it closed. supra. Chris