United States v. McCollum

STATES, Appellee, UNITED Sergeant,

Terry McCOLLUM, Staff Force, Appellant. Air

U.S.

No. 02-0474.

Crim.App. No. 34324. Appeals Court

U.S.

the Armed Forces.

Argued 2003. Nov. and Feb.

Decided June age of carnal knowledge,

divers occasions violation Articles Military Uniform Code Justice UCMJ], §§ [hereinafter 10 U.S.C. (2000), respectively. Appellant was sen discharge, to a eighteen tenced dishonorable confinement, years’ E-l. and reduction to convening authority approved sen adjudged. Air tence Force Court of Appeals findings Criminal affirmed the McCollum, sentence. United (A.F.Ct.Crim.App.2002). grant M.J. following ed review on the issues: I THE WHETHER MILITARY JUDGE COMMITTED PREJUDICIAL ERROR REQUIRING BY THE OF ABSENCE APPELLANT THE DURING TESTIMO- (CS), OF IN NY AN ALLEGED VICTIM VIOLATION OF APPELLANT’S CON- STITUTIONAL TO RIGHT CONFRONT ACCUSER, HIS THERE WHEN WAS NO BASIS TO SUPPORT SUCH A RUL- ING.

II WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL ERROR BY DENYING THE DEFENSE’S MO- TION TO SUPPRESS AND HOLDING BAKER, J., opinion of delivered the THAT CERTAIN STATEMENTS MADE Court, GIERKE, EFFRON, in which BY APPELLANT TO HIS WIFE DID ERDMANN, JJ., joined. CRAWFORD, FALL THE NOT WITHIN PRIVILEGE C.J., separate concurring opinion. filed a FOR CONFIDENTIAL MARITAL COM- MUNICATIONS. Appellant: Major For B. Brown Jefferson Knott, (argued); Beverly Major B. Colonel Subsequent holding argument oral Fried, Major Maria A. Terry McElyea, L. 6, 2002, speci- issues on these November brief). (on Major A. Jeffrey Vires following fied the additional issue: Appellee: Major For THERE “DE EX- Linette I. Romer A FACTO CHILD” IS (argued); Lieutenant Colonel LeEllen CEPTION TO THE HUSBAND-WIFE Coacher, and Lieutenant Colonel Lance B. PRIVILEGE THE UNDER MILITARY brief). (on Sigmon EVIDENCE, SO, AND, RULES OF IF IT

IS APPLICABLE TO THE PRES- ENT CASE? Judge opinion BAKER delivered the Court. I, Issue we affirm the Court of On Crimi- Appeals. military general judge tried court- nal The did martial composed judge Appellant’s right of a alone. violate Sixth Amendment Contrary pleas, Appellant against by allowing him to his was convict- confront witness rape, testify Appellant’s ed presence. indecent acts with a child under CS to outside of motion, argu- Military counsel contested correctly applied Defense military judge 611(d) re- had not met the trial counsel M.R.E.] [hereinafter Rule Evidence 611(d)(3) Craig. Craig, quirements of 497 U.S. Maryland consistent (1990). argued there was counsel also 111 L.Ed.2d 666 Defense 110 S.Ct. addition, pro- that CS properly evidence to establish insufficient Appellant’s con- aspects of the other such trauma she would tected would suffer rights. presence. Al- testify Appellant’s frontation unable testify outside lowing CS II, On we conclude Issue counsel, would presence, defense asserted privileged were under M.R.E. statements Amend- Appellant’s Sixth therefore violate 504(b)(1). no de also hold that there is him. right to confront witness ment 504(c)(2)(A). exception to M.R.E. facto child alternative, Appellant volunteered In the such, biological not a As because MW was courtroom CS’s withdraw legally recognized child ward of child or a 611(d)(4), permitted by M.R.E. testimony, as wife, RM, Appellant’s Appellant or his state- require- military judge if found that the excep- not admissible under that ments were 611(d)(3) Craig had ments of M.R.E. tion and should have been excluded. met. been abused her discre- therefore admitting tion those statements. Never- motion, coun- During hearing trial on below, theless, for the reasons discussed Prior, a clinical sel Ms. Joan licensed called er- affirm conviction because worker, testify to expert as an about social by military judge were rors committed having from to potential harm to CS harmless. Prior testify Appellant’s presence. Ms. Right I: Issue to Witnesses Confront weekly 11 or times in had counseled CS military judge accepted Ms. sessions. The Background A. Factual expert diagnosing an in the field of Prior as 1999, Appellant over the Inter- In met SK sexually treating children who been and Eventually, began net. the two a romantic abused, testify her to CS’s and allowed about and, relationship Appellant’s request, SK response testifying of expected in front and her four children moved from Connecti- Appellant. Base, Seymour cut to Johnson Air Force Carolina, to live with him in his base opined North testimony, Ms. Prior that CS In her housing. people in Because of the number of required harm if would suffer emotional house, CS, 11-year daughter, old SK’s Appellant’s presence. Testifying in testify in slept living the couch in the One room. stated, Appellant, cause front of she would awoke, room, night, living SK entered “decompensate” in a more or “function CS to naked, aroused, Appellant sexually and found disorganized way____ She would become and “as I poised over CS. SK testified that anxiety increase highly agitated, her would more, approached him I saw him naked even functioning change her level would so that of panties were and was kiss- her down he might have a reoccurrence overall. She just exploded and I in an out- on her nightmares, might she become more with- later, during rage.” days argu- Some that it could setback her drawn.” She added ment, having Appellant admitted SK to healing process and reactivate some of sexually another assaulted CS on occasion. Post Traumatic Stress symptoms CS’s reported police and SK then called the (PTSD). noting testify- Disorder While raped Appellant had CS. court, itself, by would be harmful to ing in CS, Prior would be Ms. added harm charged

Appellant thereafter “extremely” aggravated if were child, rape in viola- and indecent acts with present. desire to When asked about CS’s point tion Articles and 134. At one ex- testify Appellant’s presence, Ms. Prior trial, trial moved counsel testify in old, plained although CS wanted to CS, testify years then 12 from allow be, doing in her two-way Appellant, so would circuit front of location via closed remote 611(d). Finally, television, to her.” opinion, “detrimental as authorized response military judge’s questions “applying criteria both M.R.E. 611(d)(3) expressed any about whether CS Craig, properly had fear found that the testified, Appellant, Ms. objec- testify Prior without child was unable to because her tion, [Ajppellant.” that CS had told her that she was afraid fear of con- Id. 840. This clusion, together if would beat her she ever told fact with the “testi- CS anyone oath, subjected about the fied abuse. under and was to cross- counsel, opposing examination pres- testimony, Based on Ms. Prior’s the mili- court-martial, ence of the and in the view tary judge found that “would be CS trauma- counsel,” [Ajppellant and his led lower required open tized if testify court court to conclude that had presence CS, of the accused.” mili- right been his denied to confront Id. at CS. said, tary judge testify open “is unable to presence court because of the accused Court, appeal On before this because of fear the accused would beat military judge applied maintains fear, her.” military judge, This stated the 611(d) way deprive such a as to Therefore, causes CS “emotional trauma.” him right of his Sixth con- Amendment she held that trial counsel had met the re- argues front a witness him. He 611(d)(3)(A) quirements Craig. of M.R.E. CS’s fear her trauma resulted from testi- granted then the Govern- not, fying generally, testify ment’s motion to have CS from found, Appellant’s presence. Ap- by two-way remote location closed circuit pellant the military judge also contends that military judge, however, television. ex- CS, questioned should have or allowed de- plained if Appellant chose to absent CS, question making fense counsel to before courtroom, himself from the CS would have 611(d) ruling. addition, Ap- her M.R.E. testify required by in the courtroom as pellant claims that ‘fear’ “the that the mili- 611(d)(4). tary judge found existed—-that testify, When trial counsel called CS to Finally, would beat CS—was unreasonable.” military judge informed the that Appellant asserts that the judge he wanted to withdraw the from courtroom. erred when she found that CS would suffer determining After that choice testifying more de than minimis trauma from voluntarily made and that he understood presence. in his right present his to in the courtroom trial, during military judge the entire the B. Sixth Amendment Confrontation Case granted request his to withdraw and ordered Law testify that in CS the courtroom. The mili- tary however, judge, ensured that Confrontation Clause of the Sixth T.he would to proceedings be able view the via “[ijn guarantees Amendment prose all closed circuit television and allowed him cutions, enjoy right the accused ... shall the by communicate with telephone his counsel to be against confronted with the witnesses at testimony. all times CS’s Supreme him.” explained The Court has right protections: that this contains several military judge ultimately

The convicted raping engaging right guaranteed by of [T]he CS and inde- the Confronta cent Appellant appealed acts with her. his only tion a “personal Clause includes not “(1) examination,” the Air conviction to Force Court of Criminal but also the insures that Appeals, arguing give will vio- witness under his statements right lated his Sixth Amendment to confront him impressing oath —thus with the seri against allowing a witness him guarding him of the ousness matter (cid:127) present during testimony. against CS’s lie possibility penal McCol- of a lum, (2) ty at 56 M.J. 838. The Court of perjury; Criminal for forces the witness Appeals cross-examination, judge’s ‘greatest affirmed the deci- submit to sion, concluding “ample legal engine discovery that there was evi- ever of invented (3) truth’; military judge, dence” permits jury to establish that the [and] reliability of measures will ensure fate to observe to decide the defendant’s testimony. making his the witness the demeanor of statement, aiding jury thus assess- Craig, the Court determined that soci- credibility.”

ing his in “the ety important public has interest psychological well-being of a physical and 845-46, Craig, 497 U.S. at 110 S.Ct. Id. minor victim.” at S.Ct. Green, (quoting 399 U.S. California Hence, held, “if makes an ade- the State (1970)). 26 L.Ed.2d 489 90 S.Ct. necessity, the state interest quate showing of protections serves to Although each of these from trauma protecting child witnesses reliability evidence “ensure suffi- testifying in child abuse case is defendant,” has stressed criminal Court ciently spe- important justify the use of a right physical, an accused’s face-to- procedure permits a child witness cial against him confrontation with witnesses face testify against a defen- at trial such cases the core the Confrontation Clause. forms dant the absence of face-to-face confronta- 844-50, 3157; Coy v. at 110 S.Ct. See id. Id. tion with the defendant.” at 2798, 101 Iowa, 1012, 1016, 108 487 U.S. S.Ct. S.Ct. 3157. (1988)(noting although L.Ed.2d about there is “some room for doubt” wheth explained The also the essential as- Court protects against er the clause the admission pects finding necessity cases where statements restricts out-of-court physical psychological being well cross-examination, scope of the Court has showing child witness stake. doubted ... the Confrontation “never Court, necessity, must not be determined guarantees the a face-to- Clause defendant must generalized one. The trial meeting appearing face witnesses before testimony case-specific finding make fact.”). the trier of “neces- presence outside the of the accused is sary protect particular welfare Despite the Confrontation Clause’s testify.” Id. child who seeks physical, emphasis on face-to-face confronta only denial of face-to-face confrontation is tion, Craig, right. it is not an absolute protect necessary to a child witness 844-50, U.S. S.Ct. 3157. Su presence trauma “it is of the de- where preme Craig provided following Court that causes trauma.” Id. at fendant guidance analyzing exceptions physical Finally, before a court de- 110 S.Ct. 3157. confrontation: a right nies an to confront wit- accused require- That face-to-face confrontation face-to-face, court find ness “the trial must not, course, does ment is not absolute of' by the that the emotional distress suffered easily may dispensed that it with. mean in the defen- presence child witness suggested Coy, precedents in As we our i.e., minimis, than dant is than de more more right that confirm a defendant’s con- excitement or some ‘mere nervousness or ” accusatory may be satisfied front witnesses testify.’ (quoting reluctance to Id. Wilder- physical, confrontation absent face-to-face State, 275, 289 muth v. 310 Md. 530 A.2d only denial confron- at trial where of such (1987)). to estab- Court declined While important necessary tation is to further necessary for level distress lish minimum only reliability public policy and where the testify ac- outside of the a child witness testimony Maryland of the is otherwise assured. law presence, upheld a cused’s judge procedure where a allowing such (citations omitted). 850, 110 Id. at S.Ct. 3157 “ emo- finds the child suffer ‘serious that will Therefore, proposition for Craig stands such the child cannot tional distress that testify may an accused’s that a witness out of ” 856, 110 reasonably Id. at communicate[.]’ (1) presence only finds where trial court & (quoting Ann. Cts. S.Ct. 3157 Md.Code important public there is an interest that (1989)). § 9-102 Jud. Proc. by denying physical served con- that will be (2) frontation, necessary application Craig, we such denial is In our most recent that (3) interest, requirements upheld echoed these when we other further 330 611(d)(3)

military judge’s Appellant argues child wit decision let two M.R.E. testify they respects” key a screen because “differs from statute nesses behind testify pres upheld in He Craig. were unable to in the accused’s asserts rule Anderson, only pass can “constitutional muster” if ence. See United v. States (C.A.A.F.1999). it, 145, 150 language Supreme certain into read M.J. Maryland in Craig, did to statute

Court § and as the 9th did to 3509 Gar- Circuit 611(d) C. M.R.E. Specifically, Appellant cia. asserts response Craig subsequent 611(d)(3) is applied M.R.E. constitutional as Anderson, (1) only this Court’s decision M.R.E. if finds that the in 1999 to was amended include subsec- child witness suffer will such trauma that he (d). 13,140, (2) tion Order No. Executive she testify; will be unable to (Oct. 55,115 12,1999). Fed.Reg. result, causing As potential trauma or fear trauma is our first occasion to consider the presence. is the result of an accused’s 611(d) amended rule. M.R.E. is similar to 18 611(d) “give adopted M.R.E. sub- 3509(b)(1) (2000), § provi- U.S.C. federal guidance military judges regard- stantive Craig, sion enacted the wake of which ing the use of alternative examination meth- testify two-way authorizes a child to via in light ods for child victims and witnesses circuit when condi- closed television certain Supreme Mary- the U.S. Court’s decision in Daulton, met. tions are See United States v. Craig, v. land 497 U.S. 110 S.Ct. (C.A.A.F.1996); M.J. (1990) change 111 L.Ed.2d 666 and the (6th Moses, F.3d 897-98 law in 18 Federal U.S.C. section 3509.” Cir.1998); Garcia, United States 7 F.3d Courts-Martial, Manual United States (9th Cir.1993). 885, 887-88 (2002 ed.) MCM], Analysis [hereinafter Military [hereinaf- Rules of Evidence A22-48 611(d)(3), 3905(b)(1)(B), M.R.E. like au- Analysis]. ter Drafter’s Prior to addition testimony thorizes remote live 611(d), it of M.R.E. was unclear whether judge finding where the makes applied § 3509 to courts-martial. See Daul- on the record that a child unable to ton, 218-19; 45 M.J. at United States v. testify open presence court (C.A.A.F.1996). Longstreath, M.J. accused, following reasons: interpret It therefore follows we should (A) testify unable to child is because 611(d) consistently Craig. fear; 611(d)(3) authorizes the use (B) likelihood, There is estab- substantial testimony of remote live “the where by expert testimony, lished finding makes a on the record that a child would suffer emotional trauma testify open child is court in unable to testifying; (Emphasis presence add accused[.]” ed.) Apparent language Craig’s in this (C) The child suffers from a mental or requirement inability reasonably the to that infirmity; or other testify presence the result from ac (D) by an accused or defense Conduct experience. cused and not the overall court [] counsel the to be un- causes child Moreover, interpret language, in this testifying. able to continue Craig, limiting of light of the use remote 611(d) However, testimony M.R.E. does not allow the situations where the mili live to tary testimony judge finding the ac- that the child use of remote live where makes voluntarily de cused withdraws from the court- witness would more than minimis suffer testimony, testifying from in the ac room the child’s as the emotional distress by judge correctly presence, brought in whether fear military concluded cused’s 611(d)(4). words, In other M.R.E. some form of trauma.1 case. See or Military inapplicable present the 1. do not Rule Evidence are in case. address 611(d)(3)(C) (D) they M.R.E.] as [hereinafter (A) following child is unable reasons: the 611(d)(3), must M.R.E. such distress under testify fear.” prevent it would because of sufficiently serious that to testifying. reasonably child Wheth- the 836, 110 Maryland Craig, 497 U.S. required as a matter of is er such standard (1990), ... L.Ed.2d S.Ct. the did law is an issue Court constitutional allowing part prior that pertinent held our Craig. It is sufficient for not address testimony!)] in order to meet out-of-court that stan- purposes in this case to note the right to con- accused’s constitutional the 611(d)(3) simi- M.R.E. dard established him, trial court front witnesses Craig. that upheld lar to suffer emo- must find the witness would 611(d)(3) that must conclusion Our testify in the trauma if forced to tional interpreted light Craig of consistent manner; the trauma would be conventional the manner federal circuits which by of accused and presence the the caused language the of interpreted parallel setting; by the formal courtroom necessity requirements § the include de minim- trauma must be more than the Moses, 898; Craig. at of 137 F.3d Unit- See is____ (8th Rouse, F.3d 568-69 ed States Combining requirements Mary- the of Garcia, Garcia, Cir.1997); F.3d 611(d), the Craig land v. with M.R.E. example, Ap- the Ninth Court of Circuit affirma- questions which must be answered constitutionality peals the of addressed tively before this can authorize the [c]ourt 3509(b)(1)(B). § Id. 888. The defendant testimony are as live of fol- [CS] remote argued provision the must in Garcia that abuse Does the case involve the of lows: implicitly incorporate require- either Is the witness child witness or child? imposed Craig ments or be unconstitu- testify child child victim? Is the unable in application. tional Id. The Ninth Circuit presence open court because of the statute, agreed. Looking at concluded accused, fear of the and because of her Congress provision intended the to codi- accused which causes her emotional trau- fy requirements Craig. Id. It inter- by expert testimony? ma as shown phrase preted the “the child is unable to testify in open presence court in the combining requirements Craig By judges requiring defendant” as trial to find 611(d)(3), judge derived testify is unable “due to the child appropriate legal proper for a standard presence of the defendant.” Id. finding necessity. She determined that Congress court held intended the prior authorizing testimony, a remote live require phrase finding same than a more military judge must find that the witness Finally, de minimis trauma. Id. testify would be unable to because degree court concluded of trauma presence. accused’s She also concluded that necessary to find a child was unable presence caused the fear trauma testify, 3509(b)(1), thus invoke more accused must be than de minimis. upheld Craig required akin “in which military judge appears to have While distress child’s emotional be such fear and trauma were concluded both ” reasonably that he communicate.’ ‘cannot necessity, finding of required for a Su Id. preme language Craig Court’s is sufficient authorizing constitutionality

Before the use of remote live uphold of both M.R.E. testimony case, 611(d)(3)(A) (B), in this independent of each 611(d) Craig looked to M.R.E. and and addressing both the other. Federal circuit courts (ii) 3509(b)(l)(B)(i) stated on the record: constitutionality §of 611(d) states, have reached the same conclusion. See Mo Military Rule of Evidence ses, (explaining that testimony 137 F.3d pertinent part: “Remote live 3509(b)(1)(B)© “requires case-specific § only military judge where the will used finding that a witness suffer finding child would sub makes on the record that a child testify open in the stantial fear or trauma and be unable is unable to court accused, reasonably presence testify the the or communicate because of of of defendant.”)(em presence physical testify- of the also suffer some fear or trauma from added); phasis Farley, United States 992 ing generally. contrary reading A would (10th F.2d Cir.1993)(affirming the very undermine interest the Court testimony use of remote live under both sought protect Craig. 3509(b)(l)(B)(i) (ii)). military The judge applied appropriate therefore con case, present In the it is clear that CS statutory requirements stitutional and testifying open was afraid of both court making finding necessity. her of testifying Appellant. in front of Ms. Prior that it testified would “stressful” for Military D. Judge’s Finding of Neces- testify courtroom, CS to in the even if the sity present. However, accused were not when agree Appellant While we asked the harm aggravat whether would be 611(d)(3) applied must be in a man- if present, ed were she “ex stated ner Craig, disagree consistent with we tremely so.” Ms. Prior stated military judge failed do so in this case. was afraid that CS would beat military judge’s A of finding necessity ais anyone her if she told In about the abuse. question of fact that will not be reversed on addition, asked Ms. Prior appeal “clearly finding unless such errone- questions clarify a series of of sources unsupported by Long- ous or the record.” potential trauma to CS and to ensure streath, military judge’s 45 M.J. at A product trauma 611(d) would be the application Craig of M.R.E. ais question Appellant’s presence. law that we review de Under these circum novo. Daulton, 219; stances, 45 M.J. at there was sufficient evidence for (C.A.A.F.1995). Sullivan, 42 M.J. military judge to conclude that the fear or trauma, brought by on fear of CS’s Appellant argues alone, prevented would have CS from reason 611(d)(3) judge incorrectly applied M.R.E. ably testifying. light Craig found because she that CS would fear testifying suffer and trauma from argues that also the mili in Appellant’s presence, when it was clear tary by questioning erred prior CS testimony from Ms. Prior’s would CS making ruling. disagree. testifying suffer fear and trauma from irre require military Sixth Amendment does not spective Appellant’s presence. While it is course, judge, as a matter of to interview or Craig requires finding true that of neces prior allowing observe a child witness sity resulting to be based on trauma from the testify pres child outside of accused’s presence, Craig, accused’s see U.S. (“Denial Craig, Supreme ence. Court stated: S.Ct. face-to-face confrontation is not needed further Although evidentiary we think such re- in protecting state interest the child witness quirements strengthen grounds could presence from trauma unless it is the measures, protective for use of we decline trauma.”), Craig defendant that causes the establish, as a matter of federal consti- require did not that a child’s trauma derive law, any categorical tutional such eviden- solely presence from the of the accused. tiary prerequisites for the use of the one- Rather, simply prohibited judges from con way procedure. The television trial court sidering resulting trauma from sources other case, example, could well have making than finding the accused in found, expert testimony basis fear, necessity. finding Where relates to it, testimony the child wit- before 611(d)(3) Craig read as im nesses in the courtroom the defendant’s posing a on a similar restriction presence “will in [each] result child suffer- judge’s finding Thus, necessity. long so ing serious emotional distress such that finding is based fear or on the trauma reasonably the child cannot communi- alone, presence caused the accused’s it is irrelevant whether the child witness would cate!.]” It reasonable. require rule that fear be (quoting 110 S.Ct. 3157 497 U.S. fear the accused be provides that the Proc. 9- Ann. Cts. & Jud. Md.Code added). prevents the child from a that 102(a)(1)(ii)(1989)) such nature (emphasis testify pres- being in the accused’s able to that do we conclude Neither testified, objection, Prior without ence. Ms. 611(d) judge military a require her would beat afraid that CS was ruling on a before interview child witness abuse and that anyone about the if she told testimony. The lan for remote live motion ability to with CS’s fear interfere that would 611(d) requires “finding guage of M.R.E. testify. reasonably record,” any specific eviden on the without appro may be tiary prerequisites. While it argument, Appellant asks us In his final necessary, priate, in circum and even some finding judge’s of trau- find that the military judge question for a stances respects. Appel- in ma was two erroneous ruling that a child before he observe witness finding her that CS would lant contends that may testify outside of an accused’s or she to determine “traumatized” is insufficient per presence, required is not se. such action was than level of trauma more whether the Rather, finding may based proper Second, required by Craig. as de minimis alone, if testimony such expert unrebutted sup- Appellant implies that the facts do not military judge testimony provides the with to CS port a that the trauma conclusion information. sufficient Again, minimis. we more than de would be disagree Appellant. with case, provided Ms. Prior this expert-opinion military judge sufficient concern, agree with As to first finding to whether evidence make as CS making her court that with the lower testify and be suffer trauma unable clearly would into findings, took Appellant does Appellant’s presence. requirement the trauma be account the dispute Prior before this Court that Ms. She, therefore, made more than de minimis. diagnosing expert in field of and treat findings using correct standard of her Ms. Prior child sexual abuse victims. necessity. by using We conclude acquainted CS, having with “traumatized,” was well met military judge found word her 11 or 12 times. She had also ob minimis more than de trauma. changes in CS’s behavior served argument, we As to factual basis, Upon Ms. able to trial. this Prior was adequate factual conclude that there was an was afraid of conclude CS military judge to conclude that basis for the testify if be traumatized forced to would more than de minimis trau- CS would suffer parties him. both and the front of pres- testify Appellant’s if compelled ma military judge opportunity had the to exten testified, if Prior that CS ence. Ms. stated sively probe Prior’s conclu the basis Ms. symp- “decompensate,” her PTSD CS would circumstances, the mili Under these sions. recur, might regress might toms and she tary judge required question was not CS on to add that her treatment. She went ruling on the Govern or observe before “extremely” if exacerbated trauma would be ment’s motion. Appellant’s presence. More- testified in CS over, afraid Prior testified that CS was

Appellant next maintains “the Ms. together, beat Taken would her. found existed— ‘fear’ testimony provides a basis for beat unrea this sufficient would CS—was sonable,” danger military judge to conclude CS would was no immediate there prevent her from Appellant’s presence. suffer trauma that would testifying to CS testifying Appellant’s presence, however, reasonably Appellant’s argument, misconstrues 611(d)(3)(A). be more than de and that trauma would provision That does result, military judge’s minimis. finding that a fear immi As require child clearly finding fact was not erroneous.2 Nor does the nent harm from the accused. itself, not, by pres- would testify Appellant’s ence establish CS does 2. That CS wanted to waist,” therefore mili exposing panties, conclude that the her and was MW tary judge interpreted properly applied rubbing and her stomach. The scene disturbed 611(d) making Craig RM, and her eventually find but she went back her into ing necessity. military We hold sleep. room and went to Later that morn- judge clearly finding did err in that CS RM ing, asked had anything MW whether testify would Appel have been unable to happened Appellant. earlier with After 611(d)(3)(A) presence lant’s under M.R.E. be hesitation, some MW became emotional and Further, Appellant. cause of fear of CS’s cry. began Appellant to RM confronted although note military judge did not bathroom, asking him whether had he expressly 611(d)(3)(B), rely on M.R.E. her day. sex had with MW earlier that heWhen findings support a conclusion that CS would initially her, having denied sex RM with have testify Appellant’s been unable to him, (MW) “[W]hy say asked she [ would ] presence to by due the trauma caused his happened!?]” Eventually, Appellant presence. Finally, procedure implement having MW, saying, admitted to had sex with by military judge protected ed properly ‘Yeah, okay.” aspects Appellant’s other to right confron RM and had several more con- tation. judge Ap The ensured frontations about people the event. No other pellant was able to communicate with his present during During were the discussions. counsel at during testimony. all times CS’s conversations, one these expressed RM military judge required also CS to testi fear might pregnant. her In MW court, oath, fy in presence under and in the response, Appellant told her that he did addition, Appellant’s fact-finder. In ejaculate during the sexual encounter with counsel to was able cross-examine CS. These might Out of preg- MW. fear that MW protections were sufficient to ensure the reli nant, RM took a clinic pregnan- MW to for a ability testimony Appellant’s despite CS’s cy test. absence. We therefore hold did not violate Sixth thereafter, Appellant Sometime went right Amendment confront witness Arabia tempo- Saudi for months on several by allowing testify him CS to outside duty. home, rary When returned presence. again couple discussed the incident with during RM

MW. testified that one of these conversations, Appellant said that he “was Issue II: Marital Communications trying get together his trying life and Privilege right, live and live than he better had been Background A. Factual past. He reading had started the Bible stated, just She “I lot[J” further remember September married RM in having just try- us conversation about him sister, MW, In stay RM’s came you responsi- to start over and know take couple month one the summer. bility things past, [for] the he did in the years MW was 14 old at the time the visit my telling family he mentioned about what “mildly and was described her mother as his, know, happened telling you just mentally retarded.” Because of MW’s condi- taking responsibility it.” tion, She also added many RM saw to of her needs. sister’s specifically he wanted to tell his mother a.m., morning, One between 3:00 2:00 and happened. response, what had RM told living RM Ap- entered room and found Appellant that she did not want him to tell pellant watching Appel- MW television. family. underwear, lying lant was on the couch in his lying on night- MW was the floor in her suppress Defense counsel moved all gown. nightgown “up was above her Appellant’s made to RM the statements testify reasonably Appel- testifying been able harmed in front of case, presence. making lant's On the facts of this her determination that CS would be un- free, desire, despite testify. reasonably say CS’s able We cannot finding clearly defer to Ms. Prior’s conclusion that CS would be erroneous. his state- they privileged the view that intended marital ground that were having ejaculated not to be opposed about his communications. The Government ment authorities, the mil- motion, RM to medical arguing that “stood communicated the because itary judge not her discretion parentis to at time the did abuse [MW] in loco the admitting Because the state- events, it. Id. exception ... to relevant interpreta- subject contrasting to was ment privilege [M.R.E.] marital found tions, “military 504(c)(2)(A) addition, the court determined that apply.” In should obviously [Ajppellant judge concluded that argued that the statements are Government proving the not his exis- did meet burden they intended to be admissible because were Ap- Regarding Id. privilege.” tence parties third therefore disclosed to and were pellant’s to wife after statements made his privileged. Arabia, court de- return from Saudi his military judge The declined to extend although Appellant never actu- termined that 504(c)(2)(A) exception in M.R.E. to contained families, ally disclosed the information to ease, exception concluding that this was his gave wife consent to disclose infor- he military narrowly. judge to apply meant The privilege and thus under mation waived statement, “Yeah, Appellant’s also held that 510(a). M.R.E. Id. okay,” privilege fell within the and should Appellant appealed his conviction to this However, excluded. she determined that Court, arguing that statements to his his wife other two statements were admissible. With to be confidential marital com- were intended regard Appellant’s that he did to statement and should have been excluded munications ejaculate, military judge determined 504(b)(1). military judge by the under M.R.E. that the “failed defense had to establish Court, During argument oral before this ‘privileged’ communication this was as de- issue whether statements were 504(b)(2).” Rather, mili- fined M.R.E. exception under admissible contained tary judge found that wife his 504(c)(2)(A) again arose. Because intended to disclose the information to medi- exception potential- Court as viewed that help cal authorities to them determine context, ly supple- in this relevant ordered Finally, pregnant. was whether MW as argument mental briefs additional oral his upon statements made return 504(c)(2)(A) applicability on the of M.R.E. Arabia, military judge found Saudi this case. that those statements were not intended Whether the erred ad- be confidential because intended mitting Appellant’s two statements his family his tell mother and RM’s about his (1) depends Appel- wife therefore on whether granted conduct MW. She therefore privileged lant’s statements were under suppress the defense motion to as to the first (2) 504(b)(1); so, if whether the statement, but denied motion to the 504(c)(2)(A) exception contained in M.R.E. second third statements. making applies, the statements admissible ultimately rap- convicted of nonetheless. We address both issues turn. appealed MW. He his conviction to the argu- Appeals, Air Force Court of Criminal B. M.R.E. 504 ing, among things, military other three should excluded all state- (1) Discussion pursuant communica- ments to the marital judge’s A decision to admit or McCollum, privilege. tions See M.J. exclude for an abuse of evidence reviewed that he intended 841. He maintained never McElhaney, v. States discretion. United of the statements third disclose (C.A.A.F.2000); see United M.J. he parties, give permission nor did his wife Westmoreland, 312 F.3d States Id. disclose the statements. at 842. (7th Cir.2002)(“We the trial court’s review privilege for an court resolution of a marital issue lower affirmed discretion.”). judge’s The court held that be- a communi- decision. abuse Whether supporting privileged question is a mixed fact cause there was “some evidence” cation McElhaney, (citing (noting preponderance law. 54 M.J. at 131 at 174 Napoleon, applies preliminary M.J. questions standard (C.A.A.F.1997)). application We review lower court’s such privileges). as the novo, legal give 504(b)(1). conclusions de but we applies same standard to M.R.E. deference, findings 905(c)(1). lower factual court’s more See Rule for Courts-Martial findings they and not will reverse such unless McElhaney, In requi- we summarized the clearly are Aya- erroneous. United States v. privileged site elements of a communication la, 296, (C.A.A.F.1995). 43 M.J. 298 504(b)(1): (1) under M.R.E. there must be a (2) communication; the communication must long held, Courts have either as a matter confidential; have been intended to be and law, statutory or common that confidential (3) it must have been “between made mar- communications between a husband and wife persons separated ried the time of the marriage made a privileged valid are Appel- communication.” 54 131. In M.J. at court, and cannot be used as evidence case, parties agree lant’s the See, e.g., absent waiver. v. United Wolfle statements were made communications to his States, 7, 15, 279, 291 U.S. 54 S.Ct. 78 L.Ed. they legally wife while were married and not (1934)(citing early 617 recognizing cases a therefore, separated. issue, The is whether privilege); marital communications 8 John the two in question statements were intended Henry Wigmore, Evidence Trials at Com- to be confidential. (John § mon T. McNaughton Law 2333 rev.l961)(diseussing history the develop- 504(b)(2) a defines confidential ment privi- marital communications following communication terms: lege). law, In the marital communi- A communication is if “confidential” made privilege cations is contained in M.R.E. privately by any person spouse 504(b)(1). provision provides relevant person and is not intended be dis- part: persons third closed to than other those person privilege during

A has a reasonably necessary after for transmission of relationship the marital to refuse to dis- the communication. close, prevent another disclos- Peterson, 81, In United v. 48 States M.J. 82 ing, any confidential communication made (C.A.A.F.1998),we a stated that communica- spouse they person of the while (1) tion “physical is confidential if there separated

were husband and and not wife individuals,” (2) privacy between “an provided by law. intent secrecy.” party to maintain Neither disputes in this case that the communications establishing The burden private between and RM were privileged marital communication is under party present that no Appel- third when 504(b)(1) party asserting is on the however, parties, lant made them. The dis- privilege. v. McCarty, United States 45 agree about whether intended the 334, (C.A.A.F.1996); M.J. 336 1 see Christo communications be secret. pher Mueller Kirkpatrick, B. & C. Laird (1994)(not- 32, § Evidence evidentiary Federal at 172-73 standpoint, From an party bearing proving party burden of intended communica proof privilege party seeking issues is tion to be difficult. confidential can be Such evidence). party asserting oral, to exclude exchanges entirely often are and the privilege applicability must its establish nature of confidential communications is such preponderance rarely of the evidence. parties See there are third or other 1295, Singleton, United States 260 F.3d evidence to attest the facts. This difficul (11th Cir.2001)(requiring ty context, 1301 heightened defendant marital asserting privilege prove where, spousal relationship, marital because preponderance rarely “express injunctions evidence that she and there are of se permanently separated crecy,” only were may husband of intent and the evidence protected at the time of the allegedly Wigmore, supra, com the statement itself. 8 munication); Kirkpatrick, 1 marriage, Mueller supra, & at 648. itera- presump- shared, to overcome privilege thought and not are processes of tive Blau, 340 71 S.Ct. tion”)(citing U.S. these actions. For rea just conclusions and (explaining 301); at 491 Coplan, 162 F.R.D. sons, ago held that Supreme long Court during a made communications that since “all presumptively are “marital communications presumed marriage are confiden- valid States, Blau v. United confidential.”3 party obligation opposing ... has tial 332, 333, L.Ed. S.Ct. U.S. overcoming presumption.”). States, (1951); 347 U.S. see Pereira v. United (1954); 1, 6, 74 98 L.Ed. 435 Wol S.Ct. are though marital communications Even 279; fle, 291 U.S. at S.Ct. confidential, factors several presumed to be (7th Byrd, 750 F.2d Cir. determining whether are relevant 1984); Investigation, Jury re Grand in For presumption has been overcome. (9th 786, Cir.1979); Caplan 788 Fell F.2d may stance, of the circumstances the nature (E.D.Pa.1995); heimer, 490, 1 491 162 F.R.D. speaker did not intend the suggest McCormick, on Evi T. McCormick Charles Wolfle, 291 to be confidential. statement (5th 80, ed.1990); Wigmore, § 330 8 dence at (“[W]herever communication, at a U.S. 14 Therefore, 2336, at 648-56. once supra, nature or the circumstances because of its asserting the communica party marital the made, obviously not it was was under which privilege establishes existence of a tions the privi it is not a intended to be confidential spouses private communication between who communication.”). communication, A leged production separated, the of are not burden generally be example, not intended to for is party opposing to the to overcome the shifts presence a if it is the of confidential made Blau, confidentiality. presumption See of of party. Id. The the com third substance 333-34, (holding at 71 S.Ct. 301 340 U.S. of may also indicative whether munication protected the marital a statement was confi party the intended statement Blau, privilege the failed to where Government 340 U.S. at 71 S.Ct. dential. See confidentiality); presumption the (acknowledging overcome of a statement was 301 Jury Investigation, In re likely see also Grand 603 intended be confidential where (noting being put jail contempt at 788 that because marital com for couple F.2d risked actions). confidential, presumptively munications it of court for their Because distin are “necessary seeking party guishing the between intent and mere wish is for avoid Courts-Martial, Basis, Although Legislative expressly do Manual the M.R.E.s address for 151(b)(2), (1951 presumption confidentiality, para. at of it been 239 has inte- United States 1951 gral privilege Wigmore, supra, the ed.)(citing §§ marital communications early part century. ed.) 2338(4)(1940 since the Moreover, twentieth clarify application of the 504(b) it is is clear that M.R.E. rooted privilege explain marital communications law marital communications common exceptions privilege). several 504(b) analysis privilege. indi- presumption of that there is a conclusion present on the cates that the rule is based rule confidentiality is also consistent with 151(b)(2) paragraph contained in of Manual courts, 101(b), military "if not which instructs Courts-Martial, States, (Revised United ..., prescribed Manual [the] otherwise Courts-Martial, ed.). See United Manual for practicable with and not inconsistent insofar as (2002 MCM], ed.) Analysis of [hereinafter Manual,” contrary [the] to the code or Military A22-40. The Rules Evidence generally recognized apply “the rules evidence rule, legal analysis of the 1969 and the cases in the United States trial of criminal legislative analysis predecessor, of its cite do address courts[.]” district The M.R.E.s explain law common cases commentators presumptions generally, application of nor rule, indicating rule is de- 504(b) preclude application of a does M.R.E. Dep’t Army, law. rived from common Pamphlet See confidentiality specifically. presumption Nor Contents, 27-2, Analysis of Manual for presumption con- is such a "inconsistent with or Courts-Martial, (Revised ed.) United States 1969 such, traiy the UCMJ or the MCM. As to” 151(b)(2), (1970)(citing para. at 27-37 Lutwak generally that are look to the rules evidence States, 344 U.S. 73 S.Ct. recognized States, courts. As noted in the federal (1953); v. United L.Ed. Wolfle text, have (1934); the federal courts that addressed 78 L.Ed. 617 and 8 U.S. S.Ct. uniformly presumed issue have marital commu- Henry Wigmore, John Evidence in Trials Com- 2298, 2310-11, 2317(1), 2322, Accordingly, we to be confidential. nications §§ Law mon 2328(1) (John rev.1961)); McNaughton apply Legal rule in case. the same T. difficult, personnel, may is or non-

desire often the existence cal but been uttered to expressed taking particu- existence timeline or dissuade RM from MW to the clinic. therefore, plan may judge, clearly lar disclosure also reveal wheth- The erred party er finding intends to disclose information. intended share particularly true if is personnel. This disclosure said with medical the information Finally, to be imminent. whether state- Finally, the fact that the statement was actually party ment shared with third investigation began never shared until the speaker on whether the bears intended supports the view that intended information to be confidential. to be There statement confidential. produced no evidence trial either (2) Appellant’s Regarding Eja- Statements Appellant or RM ever discussed the incident culation parties third prior investiga- with to the ease, present In the Court Appel- tions that led to trial. upheld Appeals military judge’s Criminal lant’s mother testified never regarding admission of statement told her about his conversations RM. so, ejaculation. ultimately doing de RM also that she never shared testified military judge’s ferred to the conclusion information these conversations with Appellant failed of had to meet his burden services, family, family law enforcement proving that he intended the statement to be anyone personnel, or base. also on She add- However, ig confidential. this conclusion personnel that never ed she told at the general rule marital nores that communi Moreover, clinic about the incident. the Gov- presumed cations are to be Be confidential. any ernment not medical did introduce rec- Appellant had cause established that relating to visit ords to clinic. MW’s private statement was a communication made Appel- Because find we no evidence that they married, to wife his while were and not lant to intended share this statement with separated, it was left to the Government to personnel, medical hold we that the Govern- presumption confidentiality. rebut the of In presumption ment to failed overcome of military judge sofar as the and lower court confidentiality. The therefore placed production of Appellant burden by admitting abused her discretion state- prove confidentiality, they to The erred. ment. proper question is whether the Government confidentiality. presumption overcame the of (3) Appellant’s Arabia Considering Post-Saudi State- Appellant’s statement and the utterance, ments surrounding its circumstances above, light of the think factors outlined propriety admitting Appellant’s of that it did not. post-Saudi presents Arabia statements a eja- Appellant’s he statement did question. more difficult The lower court is not person culate the kind of statement a Appellant any privilege by held that waived Further, generally openly. to share intends giving his to his wife consent disclose state- if Appellant likely knew that authorities be- 510(a). disagree. ment under M.R.E. actions, being aware his he came risked 510(a) criminally. person charged states judge’s privilege determination that intend- he or “volun waives where she tarily ed medical to the statement be shared with discloses consents disclosure of any part significant There of matter or commu authorities is without substantiation. that it would is no evidence that ever discussed nication under circumstances sharing privilege.” inappropriate the information with medical authori- to allow the claim of fact, Voluntary applies only where ties. RM could not certain disclosure portion speaker she even knew that intended to elects share substantial privileged party communication with a take MW to a clinic. Nor did the statement McEl relationship. any privileged contain itself indication outside 131-32; haney, see United States at to share the information with medi- 54 M.J. intended

339 1440, (10th Cir.1997); confidentiality. mili- Bahe, presumption v. 128 1442 F.3d 179, Appellant’s § ex- tary judge Kirkpatrick, supra, 2 concluded Mueller & pressed tell mother and his Appellant did his There is no evidence that desire family so the incident with MW here. about wife’s state- intent to disclose the manifested his view, voluntary In our consent Appellant’s statements It true ments. given spouse where either disclose one interpreted expressing as an inten- could be implicitly authorizes the other to expressly families. tion to disclose information party. information with third Courts share However, could also be the statements regularly unauthorized held that expression of aspirational or an viewed privileged information one disclosure desire, fact supported by the a view spouse priv does constitute waiver that disclo- statements lacked indication cases, nondisclosing ilege. In such particular planned for a time. sure was spouse pre privilege can still assert the use information vent the of the confidential the view that factors also buttress Other legal proceeding. Kirkpatrick, & Mueller yet Appellant had not determined disclose 207, 438; see & supra, Procter Gamble families, relationship with his MW Co., F.Supp. Trust Co. v. Bankers addressing doing possibility but (S.D.Ohio 1995), grounds, rev’d on other other statements so. Similar (6th Cir.1996); 78 F.3d 219 RM, Appellant’s post-Saudi Arabia state- Neal, (D.Colo.1982), F.Supp. that is ments contained information tradition- (10th Cir.1984); affd, 743 F.2d 1441 State ally maintained as confidential. Disclosure Compton, 104 N.M. P.2d relationship could with MW cert, (1986), denied, 479 U.S. 107 S.Ct. liability civil have resulted criminal or (1986); People 93 L.Ed.2d v. Gard have the fami- himself could traumatized ner, Ill.App.3d Ill.Dec. fact, appears In RM to have had this lies. (Ill.App.Ct.1982). N.E.2d 1318 in mind she latter concern when counseled against disclosing past Appellant his conduct case, Appellant’s In RM testified testified, family. “I told her At trial she Appellant that told that he “mentioned my telling, family.” him I didn’t him not want my happened telling family about what Further, comment seem to con- this would his, know, telling you just taking respon definitely had decid- firm that not sibility it.” for There is no evidence in these of the information at the time ed to disclose words, otherwise, or either Furthermore, his his conversation with wife. expressly implicitly or authorized his wife Appellant intended the state- the view that parties. share his third statements with supported by ments to be confidential is more, his reflect marital Without comments a party the informa- fact neither disclosed telling discussion about the families about short, family In there is no tion to members. MW, necessarily with Appellant’s conduct he the issue with evidence ever discussed discussing possi a If decision do so. families or others. bility sharing privileged with of information parties to dis third constituted authorization evidence, Although there is some found close, effectively an accused would words, supporting the view attorney-client privilege each time waived his others about wanted tell confessing possibility of he discussed the MW, evi- we conclude that this conduct attorney. The here with his facts indicate dence, to the when contrasted evidence merely RM dis discussed contrary, to overcome the was insufficient Therefore, Appellant did not waive closure. confidentiality. presumption of The Govern- privilege provided in M.R.E. for carry failed burden. ment therefore its 504(b)(1). therefore hold that concluding Ap- 510(a) her discretion in apply, abused

As M.R.E. does not privileged un- question pellant’s statements were again the becomes whether the Gov 504(b)(1). overcoming its der M.R.E. ernment carried burden 504(c)(2)(A). Applicability plain suggest C. words that a child should spouse spouse considered “of’ if that Because statements parent (biological, adoptive rec- legally or 504(b)(1), requirements meet the of M.R.E. ognized parent guardian) of or the child they they privileged are unless otherwise fall Significantly, question. Black’s Dictio- Law exception under an to that rule. At issue in nary “parent” legal defines terms of or exception case is the contained M.R.E. biological status as 504(c)(2)(A), applies “proceedings which lawful or [t]he father mother of someone. spouse charged which one awith crime ordinary usage, the term denotes more person property or of the other responsibility conception than spouse or a child The Govern either[.]” (1) commonly birth. term includes argues ment “child of either” should be either the natural father or the natural child, read to include “de facto” or a child (2) child, adoptive mother of a father or who custody is under care or of one (3) child, adoptive mother of a child’s spouses, regardless of the existence of putative parent expressly blood who has formal legal parent-child relationship. It (4) acknowledged paternity, and an individ- therefore maintains because MW was agency guardian ual status as has whose custody under the and care of RM the judicial been established decree. offenses, alleged time of the was a de MW 504(c)(2)(A) facto child and M.R.E. should (7th ed.1999). Dictionary Black’s Law apply, making Appellant’s statements admis possible phrase It is to read “child of “child of sible. Whether either” should be suggest relationship, either” a custodial construed to include a de child facto is a legal biological relationship to a addition question of law that we review novo. de See where, example, placed a child is under 230, 234, Phillips, United States v. 18 C.M.A. long-term legal care of another without (1969)(construction 39 C.M.R. A placed long- ratification. under child law); regulations question is a care of a grandparent term or other relative Ramos-Oseguera, States v. F.3d deployment might extended estab- (9th Cir.1997)(“A district con court’s quali- “belonging” lish a sufficient sense of struction of Federal Rules of Evidence is fy guardian. de facto child This question subject of law to de novo re however, language, view the rule’s strikes view.”)(citing Manning, United v. 56 general usage in light us as strained (9th Cir.1995)). 1188, 1196 F.3d understanding legal of these terms in begin language Moreover, the practice. with of M.R.E. the could President 504(c)(2)(A). fuller, construing language expansive In the of a have drafted a more defini- rule, generally is statute or understood to connote a or legal tion custodial as well as “ given the should biological relationship. significant ‘words their com Given the ” approved usage.’ mon legal implications Scenic policy social of extend- NLRB, ing respect Artists v. 762 1032 n. privilege F.2d 15 with to custodial (D.C.Cir.1985)(quoting Singer, children, 2A relationships expect Norman J. with we would 46.06, Statutory represented an express Sutherland Construction such intent to in (4th ed.1984)). Although pressed 74 language, squeezed the term rather or than “child,” definitions, itself, Therefore, many present has think when from the text. accompanied either,” phrase “of either” view “child of as better is that 504(c)(2)(A), relationship, applies only context of a marital word used M.R.E. specific meaning. biolog- has more preposition those situations in a child is which “of,” phrase, spouses, legally suggests as used this deriva ical child one of the child, or belonging. recognized spous- tion See New of one of Webster’s World or ward ed.2000). (4th College Dictionary 1000 Thus es.4 may legally recog- might potentially

4. A play foster child indeed be a factors that come into children, spouse. involving nized child of a or ward Because of cases foster we reserve question exception applies specif- variations in state laws and the of other number whether this

341 biological adopted or conclusion, is not the also child who reaching we are 101(b) spouses. mili- See Huddleston instructs one of the cognizant that M.R.E. child of State, federal rules tary to look to the courts v. S.W.2d evidentiary on guidance for law common that Tex.Crim. (Tex.Ct.App.1999)(holding pre- doing “not otherwise so is (Vernon issues where Supp.1999) §Ann. 38.10 Proc.Code ... and insofar Manual [the] scribed the marital commu provides exception an con- with or practicable and not inconsistent charged person privilege where nications When trary code Manual.” [the] to the or child, regard against any minor with a crime 101(b) sources, man- these looking to of one of child is child less of whether look dates that we Court, Superior Dunn spouses); (1) First, gener- rules of evidence [to] the Cal.Rptr.2d Cal.App.4th

ally recognized in the trial or criminal (Cal.Ct.App.1993)(interpreting 367-68 States district eases the United exception phrase of ... either” an “child courts; and privilege marital communications to the Michels, child); State include a foster (2) Second, with when not inconsistent 311, 315-16 414 N.W.2d (b)(1), of evi- Wis.2d [to] rules subdivision phrase (Wis.Ct.App.l987)(concluding that the at common law. dence exception used an “child of either” as phrase expansive interpretation An privilege was intended the husband-wife support in the either” finds little “child of State, child); Daniels v. include a foster system or common law. federal civilian (Alaska Ct.App.1984)(holding P.2d 101(b)(1), Fed- regard to M.R.E. With “ suffi of either’ is language ‘child expressly pro- not eral Rules of Evidence do to a committed ciently apply broad to crime exception vide an to the marital communi- for child.”). among these a foster Even privilege. See Fed.R.Evid. 501. cations states, only exception in Huddleston Texas’s only feder- we are aware one clearly home to children in the would extend exception to recognized al that has circuit type legal relation that do have some law marital communications common spouses. ship one privilege a spouse where is accused of abus- biological legal a child who not the rule, and in Based the text of the Bake, spouse. F.3d at child of either See generally recog light of the rules of evidence (creating exception 1444-46 “an to the mari- courts, we in the conclude nized federal privilege spousal tal tes- communications exception child is not a de facto there timony relating to of a child the abuse minor privilege communications marital household”). there is no within the While 504(c)(2)(A). conclude that MW was We also temporal formula for deter- mathematical purposes a child of RM or many exception mining make an how eases 504(c)(2)(A) month-long during her of M.R.E. “generally recognized,” it we are confident stay couple. with time, Thus at must be more than one. this applicable federal rules of evidence RM’s While RM cared MW is sister. generally recognize a district courts do not needs, stayed only and saw to her MW MW exception to the marital com- de facto child month, after Appellant and RM for one privilege. munications parent’s time returned which she Moreover, was no there evidence home. only note that five have We also states any rights over parental or duties RM had com- recognized exception an to the marital by or Based on a virtue of law decree.5 privilege for offenses MW munications relationship MW’s child-parent existed ically a case which that to foster children for raised, briefed, appropriately stay and month-long been Govern- issue has with RM. Insofar as the argued. evidence of such ment failed introduce consequences relationship, bear should no evi- 5. note that the Government offered such a failure. legal appeal or at trial to indicate that a dence on 342 States, contrary, 750, 765,

the lack of to the we v. 66 evidence teakos United 328 U.S. (1946)). 1239, L.Ed. S.Ct. 90 1557 conclude that MW was not the “child” either or RM because there was no This Court has never addressed parent-child biological legal relation- and/or privi whether the erroneous admission of ship. exception contained in M.R.E. leged marital communications constitutes 504(c)(2)(A) apply therefore does this constitutional or nonconstitutional error for case. purposes analysis. of harmless error With exception Whether de facto child to the respect case, privilege in to the this constitu privilege ap-

marital communications should are tional concerns not at issue. M.R.E. 504 ply legal policy question courts-martial is Working .was formulated Evidence political policy- best addressed and Group of the Joint Service Committee making government.6 elements of the Military by presi and was Justice enacted Martel, dential order. See United v. States 504(c)(2)(A) ap- Because M.R.E. does MCM, 917, (A.C.M.R.1985); 19 M.J. 931 ply case, statements to A22-38, Analysis, supra, Drafter’s A22-40. privileged RM were and should have been mandated, constitutionally It was not require from excluded trial. error will Such consequently, any admitting privi error in reversal unless the error is harmless. leged spousal communications must non- Therefore, Harmless Error constitutional in nature. mili tary judge’s admitting Appellant’s error in error, an Whether constitutional other- privileged statements will if the be harmless wise, question was harmless is a of law that error did not have substantial influence on Walker, we de novo. review United States v. findings. (C.A.A.F.2002); 57 M.J. 178 United (C.A.A.F. Grijalva, v. States 55 M.J. determining prejudice re 2001). The Government has the burden of sulting from the erroneous admission of evi persuading us that a constitutional error is “(1) dence, strength weigh of the beyond a harmless reasonable doubt. Unit- case, (2) strength Government’s of the Hall, (C.A.A.F. v. ed States M.J. (3) case, materiality defense of the evi 2002) errors, . For nonconstitutional (4) question, quality dence Government must error demonstrate question.” evidence Kerr, did not substantial on the influence (C.A.A.F.1999)(citing M.J. Walker, Weeks, findings. (citing 57 M.J. Kot- United States 20 M.J. exception military. deployments single Consideration of such would re- Due to quire weighing complicated the careful parenthood, personnel children of are contrasting policy often concerns. by grandparents, siblings, often cared for aunts hand, On one uncles, "de facto child" does not recognize or friends. We also degree clarity coverage offer the same as many children are abused in homes that are not legal definitions based on As rec- connections. their own. we are aware that there ognized by Judge Everett United States v. myriad child-raising today’s are a scenarios in (C.M.A.1987), Tipton, 23 M.J. are there society, necessitating daycare often or less formal good arguments adopting crisp privi- rules supervising means children. Children in these lege exceptions lay that are as clear protection receive situations should no less they person lawyer system are to the they than receive in own abuse their homes. justice integrally incorporating both. Clear rules argue One could also that the marital communi- underpin policy purpose also the mar- behind privilege privilege pro- cations intended to —a privilege ital communications in the first in- harmony prevent not "a mote marital —should theory, certainty a stance. As matter of in cover- outraged spouse knowledge properly with and, age encourages marital communication testifying against perpetrator" of child abuse communication, through the marital bond. The home, regardless within the of whether the child bond, turn, generally recognized marital in is Bahe, part family. of that facilitating protection the nurture children and (10th Cir.1997). F.3d family. within the event, any responsibility hand, it is the of the good policy justi- On other are there government political exception privi- balance these expanding elements fications for to the child, lege particularly competing to include de facto considerations law. counsel was able (C.M.A.1985)). suggestibility. Defense her Applying this standard about the case, MW was confused to establish that Appellant’s we hold that statement, but admitting of a second written Appellant’s state- existence judge’s error support any evidence to failed mount he ments was harmless. testimony untrue. theory MW’s was hand, there no doubt that On the one testimony supported RM’s was were mate- MW’s Appellant’s privileged statements testimony. that she awoke one RM testified They directly related to rial. 2:00 and 3:00 a.m. to find morning culpability, in this case. between an ultimate issue living his Moreover, good lying room quali- Appellant the statements were of extensive, MW. stated that MW’s they near She ty. not state- underwear While were waist, her pulled up above guilt provided nightgown was and ments were admissions testified meaning panties. RM further exposing clear. her detail make their sufficient next confronted MW the that when she hand, other factors indicate On the other prior morning eve- about events admission of the state- the erroneous began and ning, MW became emotional a substantial influence on ments did not have a confrontation with cry. Subsequently, Kotteakos, findings. See U.S. at had with Appellant whether he had sex about presented 66 S.Ct. 1239. The Government response morning, earlier and in MW strong Appellant had evidence that sexual action, denying such RM testified testified that intercourse MW. MW him, say “why [MW] that she asked would multiple Appellant had had sex with her on happened[?]” also RM testified throughout places occasions different incident, time she took MW some after two of these house. She described least pregnant. clinic see whether she was to a graphic In the in- occasions detail. first testimony, in light of MW’s When considered stance, limitations, despite mental her MW these facts demonstrate Government identify Appel- was able to the room in which against Appellant. strong case had lant had sex with her and what was she hand, her, case, wearing, explain Appellant what said on the other was defense’s encounter, theory, including primary It’s as evidenced and describe sexual weak. statements, encounter, following opening closing was that Appellant its “wiped prosecution’s stuff He took all the witnesses’ stories were [sic] off. had Yet, inconsistent, wiped confusing, towel had stuff or fabricated. white off having failed to undermine the sub- him.” also testified that after defense counsel She sex, testimony, for exam- she went and cleaned the “white stuff’ stance MW’s RM’s “get ple, Defense through off herself because she didn’t want to cross-examination. instance, Regarding any in- pregnant.” failed to raise material second counsel also (1) Moreover, Ap- in their al- following MW testified to the facts: consistencies stories. room; living pellant though her in insinuated that RM’s had sex with defense counsel (2) asleep testimony product RM and her at the MW’s was false niece were (3) (4) time; wearing nightgown; suggestion, was he unable to offer she was proof allegations. if he have sex with such asked her could substantiate (5) her; panties Appel- took she off Appel- Although qualitative nature (6) clothes; they took his were lant off when resolution of this lant’s statements makes her; naked, penis in Appellant inserted his one, we conclude that the other issue close (7) done, again he after was sufficiently evidence “wiped the white stuff off of him.” incriminating would been if his had been testimony was uncontra- convicted even statements MW’s During properly therefore hold that cross-examination. cross- excluded. We dicted on examination, military judge’s ques- erroneous admission of defense counsel did substantially did influ- facts testified to on those statements tion MW about the she Rather, attempted findings. The errors were there- ence direct. defense counsel testimony the of show that MW’s was result fore harmless.

344 precursor today’s the

Conclusion of Federal Rules of 05(b)(1) Proposed Evidence. Fed.R.Evid. 5— reasons, For these we affirm the decision exception an established to the husband-wife of the Air Force Appeals. Court of Criminal privilege proceedings spouse “in in which one charged against is person a crime CRAWFORD, Judge (concurring Chief in property ... of a child of either[.]” 46 result): 161, (1969). F.R.D. 263 The note agree I majority’s with the resolution of proposed rule identified the “need of limita- ground this case of harmless error. I upon tion privilege in order to avoid separately my analysis write because of grave injustice in cases offenses whether “child of either” in the context of spouse.]” ... [of a child either Id. 265 504(c)(2)(A) Military added). Rule of (emphasis [here- Evidence Proposed Fed.R.Evid. 5- 05(b)(1) child, became, verbatim, inafter Proposed M.R.E.] includes a de facto Fed. 505(c)(1) leads to a me different conclusion than the R.Evid. in the 1971 Revised Draft of Rules, majority. Proposed which included the same 369, explanatory 315, 51 note. F.R.D. 371 plain ordinary meaning While the is (1971). certainly starting point statutory in Although Congress did not include terpretation, implement courts should also 505(c)(1) Proposed exception Rule in the language, purpose, “considerations of and ad eventually codified Federal Evi- Rules of workability[.]” ministrative Geier v. Ameri dence, expressly did include the Co., 861, 873, can Honda Motor 120 U.S. 504(c)(2)(A). exception in the form M.R.E. 1913, (2000). S.Ct. 146 L.Ed.2d 914 Accord identify That the elected to this ex- ingly, entirely appropriate “it is to consult all ception explicitly, despite Congress’s failure materials, public including legislative ... Evidence, to do so in the Federal Rules history verify ... that what seems to us significant. analysis of M.R.E. disposition an unworkable ... was indeed 504(c)(2)(A) adoption proposed notes its from of, unthought justify departure and thus to 505(c)(1), highlights Fed.R.Evid. ordinary meaning from the of [a] word[.]” recognition “society’s overriding rule’s in- Co., Laundry Green v. Bock Machine prosecution terest in of anti-marital offenses 504, 527, U.S. 109 S.Ct. 104 L.Ed.2d probability spouse may and the that a exer- (1989)(Scalia, J., concurring). See also control, psychological cise sufficient or other- Mississippi Holy Band Choctaw Indians v. wise, prevent spouse to be able to the other 30, 43, field, 490 U.S. 109 S.Ct. testifying voluntarily.” Manual congressional 29 (1989)(applying L.Ed.2d in Courts-Martial, (2002 ed.), States United statutory interpretation). tent to fac “These Analysis Military Rules of Evidence provide background existing tors of A22-40. customs, practices, rights obligations glean history What we from the of M.R.E. against which to read statute.” United 504(c)(2)(A) analysis is an its intent to 57 M.J. Tardif public policy. Clearly, important effect (C.A.A.F.2002)(Crawford, C.J., dissenting). public policy exception behind this “the explicit public policy prompt- concerns children, protecting interest which military’s adoption of M.R.E. Court, Superior abounds the law” Dunn v. 504(c)(2)(A) suggest that the term “child of Cal.App.4th Cal.Rptr.2d includes a de either” facto child. To find (Cal.Ct.App.1993) (interpreting the “child of simply disposi- otherwise is an “unworkable language in exception either” California’s that, justifiable plain tion” while under the strongly privilege). the marital interest This “child,” meaning key word defeats signals encompasses a that “child of either” purpose adopted. exception for which the yield de facto child. To find otherwise would Clearly, exception’s pur- absurd results. Judicial Conference of the States, pose Committee on Rules Prac- Procedure, promulgated tice and a draft of by affording would not protec- be served Proposed only family of a Federal Rules Evidence— tion to those children unit

345 majority may be correct legal biological relationships. While Rather, purpose] [the ensure legal policy ques- ultimately is “a issue this individuals, minor chil- particularly those political poli- tion best addressed dren, present in and are who are the home government,” 58 of the cy-making elements family are actively part structure 342, ignore the remiss to M.J. Court is protected, prosecution, via criminal policy behind explicit public incentives against them. crimes committed 504(c)(2)(A). military’s adoption of M.R.E. Michels, 141 81, State v. 414 N.W.2d Wis.2d added).1 (Wis.Ct.App.1987)(emphasis children, which, paramount protect military, interest of like have ter 1. Several states State, 505(c)(1) children); ing 997 S.W.2d adopted proposed Huddleston Fed.R.Evid. ex (Tex.Ct.App.1999)(holding ex ception reasoning ap that the employed this applies ception spousal privilege when plied exactly interpretation to the of "child of ei State, (Alaska against even minor child P.2d crime is committed ther." See Daniels v. parent spouse not (holding phrase Ct.App.1984) is suffi if defendant child); Michels, ciently 141 Wis.2d crimes committed State v. broad include children, (Wis.Ct.App.1987)(applying protect 315-16 in the interest of N.W.2d foster Court, children); "object Superior accomplished” in con the rule’s to be Dunn v. Cal. (Cal.Ct. cluding properly App.4th Cal.Rptr.2d child is includ "foster ed”). (interpreting phrase App.1993) include fos

Case Details

Case Name: United States v. McCollum

Court Name: Court of Appeals for the Armed Forces

Date Published: Jun 24, 2003

Citation: 2003 CAAF LEXIS 599

Docket Number: 02-0474/AF

Court Abbreviation: C.A.A.F.