*1 STATES, Appellee, UNITED LITTLEWOOD, Sergeant, D.
Chris Staff Force, Appellant.
U.S.
No. 99-0604.
Crim.App. No. 32763. Court
U.S. Armed Forces.
Argued Feb. 2000. Aug.
Decided
SULLIVAN, J., opinion of delivered the COX, Court, EFFRON, J., which S.J., COX, S.J., joined. concurring filed a GIERKE, J., opinion. filed an con- curring part, C.J., CRAWFORD, joined. Appellant: Captain Apol Michael J. (on (argued); M. Colonel Jeanne Rueth brief). *2 (CMA 1988) 253, Appellee: Captain (opinion Suzanne must Sumner factfinder).
(argued); Anthony P. Colonel Dattilo and to the (on Ronald A. Rodgers Lieutenant Colonel we hold error was harmless. Article brief). 59(a), UCMJ, 859(a); § 10 USC see United Davis, MJ SL, appellant’s 9-year-old stepdaughter Judge delivered SULLIVAN previous marriage, from a told her mother of Court. appellant had her in a touched “bad During April appellant of tried way.” reported Her mother this incident general by composed of court-martial Agency. the Missouri Social The Service military judge sitting Air alone at Whiteman of social worker notified the Force Office Base, pleaded Force Missouri. He guilty (AFOSI) Special Investigations allega- specification committing one of acts indecent agent tions. An appel- AFOSI interviewed pleaded guilty with a child He under 16. KL, daughter, lant’s natural specification communicating to one of inde- appellant then lived with on Whiteman Air child, language specifi- same cent to that one Base, interview, Force Missouri. In the first her, taking cation liberties indecent with appellant anything KL denied that had done specification one committing indecent However, inappropriate to her. in a subse- guilty with another child. He was found home, quent interview in KL her related all the specifications, above violation appellant numerous occasions on which had Military Article Code Uniform Jus- vagina, perform touched her her to asked tice, 12, 1997, § April On he USC 934. him, penis fellatio on rubbed his between her discharge, was sentenced to a dishonorable breast, ejaculation, legs until her touched forfeitures, years, confinement for 16 total her pornographic showed movies. and reduction to rank of E-l. June On agents, by ap- When interviewed AFOSI 18,' convening authority approved pellant remembering any at first denied such adjudged. the sentence as On March However, ultimately incidents. he admitted 1999, the Court of Criminal dis- touching rubbing vagina, licking KL’s finding guilty committing missed the breast, vagina, kissing kissing KL’s KL’s KL indecent acts with second child but af- mouth, putting penis between findings remaining specifi- firmed the to the legs ejaculated, watching until KL’s he relating cations to the first child. The lower adult movies with KL. He said he “didn’t court reassessed the sentence and reduced doing anything to SL. remember” years confinement to 12 but af- otherwise discharge, firmed a forfei- dishonorable total trial, the called At Government Lieutenant tures, and reduction to E-l. (LtCol) Kopp, appellant’s Colonel Robert commander, squadron testify in its case- granted We review case on (R. 441). in-chief. direct examination September on the issue: following unfolded follows: WHETHER THE MILITARY JUDGE you Kopp, person- ATC: Colonel do have ERRED IN ALLOWING APPELLANT’S knowledge al of the accused? COMMANDER, OVER OB- DEFENSE I Sergeant know WIT: Littlewood from JECTION, TO PERSONALLY CHAR- perspective. professional ACTERIZE EF- THE NATURE AND Q: you Are the accused’s commander? FECT OF MANY OF THE THAT ACTS Yes, I am. A: APPELLANT ALLEGEDLY COMMIT- TED. you Q: Do know when accused ar- at Whiteman Air Force Base? rived hold We erred 1996; September A: Yes. about seven permitting appellant’s commander to ago. months lay opinion as to his were certain acts “indecent,” “prejudicial Q: As commander Whiteman Air Base, discipline,” discrediting.” you yourself and “service Force do consider to he Benedict, judgement to render a as to Yes, A: it would. in- alleged certain acts would be decent? upon the Air Would I am. believe Force? And, alleged acts would certain *3 good discipline? to order prejudicial in this Air Q: ever a time Has there been A: Yes. Force, such an act your knowledge, that to bring upon Air would not discredit bring upon the Air Q: discredit Or Force? Force? that would A: unaware of such an act I’m
A: Yes. acceptable. be Kopp, you do Q: con- Lieutenant Colonel my perform oral phrase, Q: dick” to be adult were to sex sider the “Suck If an 12-year- 12-year-old girl a or have a offensive? him, would girl perform old oral sex on Objection, Your Honor. IMC: indecent? these acts be objection. your The basis MJ: for Yes, they would. A: asking It’s an IMC: for Q: Prejudicial good to order disci- who is to render an pline? is opinion; it also irrelevant. Yes, they A: would. Objection
MJ: is overruled. upon Q: they you, bring discredit ATC: Thank Your Honor. One Would time; phrase, do Air you more consider the Force? my dick”
“Suck to be offensive? Yes, they A: would. Yes, Ido. WIT: ejaculates Q: an about adult who What If this told 12- phrase rubbing penis ATC: were to a and forth after back member, girl by military 12-year-old legs; year-old girl’s a would a would between phrase such a be indecent? that be indecent? Honor, Objection, only Your Yes,
IMC: A: it would indecent. irrelevant, calling for his it it bring Q: upon the Air And discredit speculation, asking for a conclu- Force? sion. Yes, A: it would. objection MJ: is overruled. Q: Prejudicial good order and disci- you— You ATC: do—or pline? you repeat the question, WIT: Could Yes, A: it would. please? porno- Q: shows How about adult who Yes, Q: phrase, my when the “Suck dick” 12-year-old girl; graphic movies to a girl by military 12-year-old said to a a would that be indecent? member, phrase is such a indecent? Yes, A: it would. Yes, A: it is indecent. Q: good Prejudicial order and disci- upon Q: bring Does it the Air discredit pline? Force? Yes, A: it would. Yes, it A: does. Q: An adult fondles Prejudicial Q: good order and disci- girl, that be indecent? would pline? Yes, A: would. it Yes, it A: does. Q: say military in a member. should member, presumably, an Q: If a Yes, A: would. it adult, digitally penetrate 12- were good Q: Prejudicial disci- year-old girl’s vagina, would such an act pline? be indecent? A: Yes. Yes, A: it would be. Q: Bring the Air Force. upon discredit good Would discipline? A: Yes. you say any type cy Would and an sexual additional element that the
activity perpetrated 9-year-old girl, prejudice indecent conduct “to the indecent, by military would that be mem- order and the armed forces” ber? “of a nature to discredit paras. armed forces.” Yes, 87 and Part it would. IV, Courts-Martial, Manual Q: Prejudicial order and disci- (1995 ed.). Judgement ques- on these pline? tions is committed to factfinder at the A: Yes. court-martial, it be a Q: Bring Force? 51(c), UCMJ, or members. See Article 851(c); § Levy, USC Parker Q: Any activity sexual towards a 12- 733, 748-49, *4 417 94 U.S. S.Ct. 41 year-old girl, would the same hold true (1974); L.Ed.2d 439 United States v. Mar- indecency and conduct tinez, (1995). 331 and and discredit testimony Kopp The LtCol upon of was offered the Air Force? prove noted above elements of these offenses. The Government concedes that any Has type activity of sexual direct- Kopp expert “LtCol offered was never as an 9-year-old ed at girl 12-year-old a or a (Government witness” this case Answer to ever, girl your knowledge, brought cred- 8), Final Brief at but asserts that he was it the Air Force? “giving lay opinion testimony as member of A: No. Furthermore, community.” the relevant Id. anything Has it ever been but inde- argues it particularly was LtCol cent? give testimony on the Yes, my knowledge. charged above of noted elements offenses questions. ATC: I have no further experience” because of his “rank and as com- (R. 442-46). appellant’s military mander of community.
Opinion testimony is admissible at court- Manual, martial. 701 See Mil.R.Evid. granted The issue asks whether the mili- pra. given by It witnesses who su tary judge allowing erred com- experts. are testifying not as Id. Such tes objection mander to over defense as timony objectionable simply is not because it allegedly nature of certain conduct by embraces issue to an ultimate be decided by appellant. Kopp gener- committed LtCol the trier of fact. See Mil.R.Evid. 704. Nev ally any activity by testified that sexual ertheless,there requirements are for the ad girl member toward lay testimony opinion mission of at courts- “indecent” “prejudicial martial. 701 states: Mil.R.Evid. discipline,” “bring and would trial, appellant the Air At Force.” testimony by Opinion lay Rule objected testimony unqualified that such witnesses irrelevant, opinion testimony, and called for If testifying is not witness as an speculation on the conclusion expert, testimony of the witness in the (R. 443). appeal, argues witness. On he opinions form of or inference is limited to opinion testimony this was inadmissible (a) opinions those or inferences which are it personal because was not based knowl- rationally perception of based on conclusions, edge, legal contained and im- (b) helpful witness and to a clear under- properly hypotheticals. used standing testimony witness of above, As noted appellant charged determination in issue. fact with numerous offenses violation Article added.) (Emphasis 134, UCMJ, e.g., language, indecent indecent liberties, pertinent question acts with a in appellant’s indecent child. required showing challenged testimony Each offense case is indecen- whether the
353 Kopp’s regard, note that LtCol In this we “helpful” the mean- Kopp was within LtCol assertions, un- rule, testimony consisted of bald 701. This like Fed. ing of Mil.R.Evid. particular facts by reasoning or applied supported new has been R.Evid. is not charged in which these held, showing the manner generally It is numerous situations. un- or the command offenses embarrassed however, help- v. its See United States dermined morale. no than instruct ful where it does more (ultimate Benedict, rule supra 259 issue reach. to what result it should factfinder as opinions guilt innocence or does not allow Benedict, 27 v. MJ at United States See accused); Fran- States v. see also United (although on ulti- allowed (CGCMR Moreover, cis, MJ 614 fact, not allowed on mate issue phrased legal testimony was legal or to state guilt issue of innocence as to wit- explanation terms without Rea, conclusions); F.2d understanding of these terms. ness’ (2nd Cir.1992); Lecureux, supra; see also United v. Woods (5th § 12 at 51 McCormick on Evidence Marshall, 2 6 CMR USCMA ed.1999) (opinion terms of (1952) (prosecution frequent by questioner properly criterion not defined concerning of ac- “rape” use word usually permitted). improp- improper amounting to cused course, recognize unique capaci we Of *5 law); er see also United States conclusion ability military command ty helpful and of a 1991) (CMA Guerrero, 295, 298 v. 33 MJ specific impact and the er observe assess (“factfinder preju- must that the be certain the of a member’s crimes or conduct on discrediting nature of the conduct the dice or military community his under command.* good order legitimately focused toward Stone, 420, v. 40 MJ 423- See United States discrediting or the armed and (CMA 1994) (holding 24 admissible forces, solely the of the and is not result Sergeant as of Master to effect accused’s biases, fears, phobias, prejudices personal or battalion); v. conduct on his United States witness”). conclusory Finally, the the (CMA 1988) 268, Guaglione, 27 MJ 272 unexplained un- testimony, form of his (holding that commander’s charac equivocal, appearance of un- could foster the terizing no than officer’s conduct as more eyes in influence lawful command judgement” unbecoming in “poor conduct public. Balagna, v. 33 MJ See United States However, ignored). com case cannot be (CMA 1991); 54, v. 1 n. United 57 opinions propriety such mander’s to the 151, 590, Grant, 585, 10 USCMA 28 CMR military general may in not be conduct in the reasons, (1959). conclude 156 For these we average mili matters the ken of the outside for the of discretion it was abuse tary v. judge or member. United States testi- opinion this Cf. admit 1992) Meeks, 64, (holding 35 MJ 68-69 generally mony under Mil.R.Evid. See are not homicide and its crime scene matters § 704.04[1] 4 Evidence Federal Weinstein’s member). knowledge within of court Admit (2d ed.2000) (legal conclusions in terms in tedly, judge has discretion inadmissible). generally statute will be determining what evidence will or particular however, error, clearly in a to him or members Such 59(a),
case. we conclude Even Article UCMJ. harmless. specifications cursory guilty of LtCol admission of review of the 12-year-old girl and her involving constituted an abuse of that discre this case this case Lecureux, per v. 110 indecent conduct tion. See Woods F.3d natural father reveals Cir.1997) Sanchez, (6th expert (holding v. USC testi se. United States 1219-21 See (1960) (holding mony phrased in undeli MA on ultimate issue CMR excluded). they are se per acts indecent where properly certain neated terms was part question. concurring * The opinion our on this in this case misreads degenerate pline,” discrediting,” shown un- detestable “service “conduct clearly becoming.” disregard evince a wanton and properly moral standards recognize many are circum that there Moreover, accepted by society). we consider commanding stances where the officer despicable “virtually always such conduct to be the best witness to as to facts from ... prejudicial order and disci which the members can infer the existence of pline discrediting to the Armed Forces.” example, if an essential elements. Davis, 449; v. United States 26 MJ junior accused officer with a fraternizes States, v. Neder United 527 U.S. command, commanding member of his (1999) 1827, 144 (failure 119 S.Ct. L.Ed.2d 35 officer can relate to the members the facts to instruct on element offense could be from which can the members conclude that error harmless where Government’s over disruptive My the conduct the unit. proof whelming of this element was uncon commanding concern officer tested). Finally, we note that this was a trial' express should not allowed to alone, by military judge presume we that, facts, alleged based on conduct judge trial of his re well aware codal “good order and disci sponsibility independent to make his own pline,” discrediting,” or un “service “conduct judgement on each the elements of these becoming.” equally capa The members are Raya, offenses. United States v. considering presented ble of the evidence (1996). 251, 253 Since, deciding those elements. context, commanding officer’s The decision of the United States Air members, not useful to the it should not be Force Court Criminal is affirmed. Birdsall, admissible. See United States (1998), citing 404MJ States v. Whit COX, Judge (concurring): Senior ted, (8th Cir.1993). 11 F.3d Accord *6 ingly, respectfully disagree Judge I with agree my colleague, Judge I with learned approach type opin Gierke’s broad to indeed, Gierke, or, an that officer an enlisted testimony. ion may member the qualified armed forces express opinion regarding to an the impact GIERKE, Judge, with whom good
misconduct on the and discipline CRAWFORD, joins Judge, (concurring Chief of a may qualified unit. The witness part): express opinion regarding to an the service- discrediting nature of the Like- misconduct. agree I majority with the that it error was wise, qualified express the witness to permit Kopp opine to LtCol to on whether opinion regarding poten- an the rehabilitative language agree the I was “indecent.” with tial of an accused. majority’s holding the that was error to Kopp permit appellant’s LtCol to that perilous it becomes for the discrediting, conduct was service but I do not interject Government to the “chain of com- view, join majority’s my in the In rationale. process. mand” into the the When accused’s Kopp may LtCol well have been to commanding express offer called to opine on whether the conduct was service nebulous, an on one these but discrediting, the to but Government failed essential, required guilt elements to establish testimony by showing foundation for articles, general under the Articles 133 and squadron that his in- duties as commander 134, UCMJ, §§ 10 USC 933 and it has with civilian cluded interaction the communi- potential the to cross the razor-thin line be- ty gauge public him to that would enable expertise tween and command influence. appellant’s reaction to conduct. danger This of command influence leads me commanding to conclude that the accused’s disagree I with several statements the First, officer should the “expert” majority opinion. disagree not be I with the express majority’s holding called to permit on such that it error subjective “good Kopp opine appellant’s matters as order and disci- LtCol conduct average military judge MJ good discipline. or member.” prejudicial to order and position appellant’s average judge as com or mem-
By virtue of his
mander,
competent
clearly
gauge
appellant’s
he was
would not be member of
ber
unit,
the
impact
appellant’s conduct on
and, thus,
im-
familiar
unit
as
with
appellant’s
know
effectiveness
whether
pact
unit.
conduct
(NCO) was com
a noncommissioned officer
Third,
majority’s sug-
disagree
I
with
promised, and to
the extent
know
testimony
gestion
Kopp’s
was ob-
that LtCol
and airmen were affected. The
other NCOs
jectionable
fully
articulate
he did
because
impact
Kopp’s
was rele
LtCol
command
If
defense
opinion.
reasons for his
appellant’s mis
question
vant to the
whether
Kopp’s
to test
basis
LtCol
desired
prejudicial to
order and
conduct was
opinions, they
ample opportunity
had
military community,
larger
in the
him about it.
cross-examine
United,
beyond appellant’s unit. See
Finally, disagree
I
suggestion
with
1994).’
Hullett,
(CMA
189, 193
MJ
This
testimony
Kopp’s
“could foster the
LtCol
has considered the
of unit
Court
unlawful command influence
appearance of
involving prejudice
in other
members
cases
eyes
public.” MJ
at 353. This
See,
discipline.
e.g.,
Unit
case was tried before a
1994).
Stone,
(CMA
ed States v.
Second, arising Kopp’s from LtCol majority’s I do not share subject Accordingly, doubts harmless. I concur the re- matter LtCol Kopp’s ken “outside the sult.