United States v. Taylor

STATES, Appellee, STUCKY, J., UNITED opinion delivered Court, EFFRON, C.J., in which and ERD- BAKER, JJ., joined. RYAN, J., MANN and dissenting TAYLOR, opinion. filed a Sergeant, L. Jason U.S. Corps, Appellant.

Marine For Appellant: Lieutenant Brian L. Miz- er, JAGC, No. 06-0319. (argued). USN Crim.App. No. 200202366. Weirick, Appellee: For Captain James W. (argued); LeBlanc, USMC Commander P.C. JAGC, USN, Craig and Lieutenant A. Poul-

the Armed Forces. son, JAGC, (on brief); USNR R.F. Colonel Argued Jan. 2007. Miller, USMC, and Lieutenant Steven M. Crass, JAGC, USNR. April Decided 2007.

Judge opinion STUCKY delivered the the Court. granted review consider whether an

accused invoke the confidential thereby pre- vent his wife from to his admission committing adultery. We hold that he may not and affirm the court below. I.

Appellant, who was then stationed Camp Lejeune, Carolina, North married DN in August year, 1999. In November high DN returned to Idaho to finish school. left, Soon she Appellant after amet fifteen- year-old girl, AM. park AM lived a trailer where visited friends. Appellant and developed AM a romantic relationship. They engaged sexual times, forty sexual approximately intercourse locations, in several between November 1999 early Throughout affair, 2000. she knew he was married that his wife was years Idaho. She told him she fifteen old. April DN returned from Idaho. difficulties, experiencing

After she Day confronted on Christmas denied, He first but then confessed affair with AM. He told DN that he had mistake, made a but loved her and wanted to salvage marriage. their 417 against court-martial, committing a crime the course of Appellant filed special At his other the limine, asserting marital com- a the motion conversation. privilege over this munication 504(c)(2)(A). motion, ruling the military judge denied not “a Appellant asserts against the was an offense property” of his against person or crime the Military Rule the of spouse within therefore, military judge the and that wife (M.R.E.) 504(c)(2)(A)and, of there- Evidence testify by over his permitting her to erred fore, prevent his wife Appellant could not Military Rules of Evidence objection. The the from to the contents of conver- the term “a crime do not define sation. spouse.” of other person property the or confirm implores this Court to Appellant Contrary pleas, judge the to approach of proper to consideration “the specification convicted of one against charged one an offense whether knowledge, in carnal violation of Article upon injures depends other spouse the (UCMJ), 10 Justice or outrage to sensibilities a violation the (2000), specification § and one U.S.C. bonds, direct some marital 134, UCMJ, adultery, in Article violation of person property.” with her or connection (2000). § was ac- U.S.C. sodomy a quitted specification with one Whether sixteen, age speci- one child under the person ... of the is “a crime UCMJ, sodomy. Article fication is a of law we review other adjudged § The sentence McCollum, United States v. de novo. See court-martial, by approved by (C.A.A.F.2003) (deciding M.J. convening authority, consisted of bad-con- the term “child of either” under whether months, four discharge, duct confinement for be construed to child). facto pay per for four include a de forfeiture month $600 months, and reduction to the lowest enlisted

grade. Navy-Marine The United States III. Corps Court of Criminal affirmed Historically, marital involved findings and sentence. United States concepts: one related two distinct Taylor, (N.M.Ct.Crim.App.2006). M.J. (often competency capacity referred disability) spouse

or other, concerned confi- while II. made between hus- dential communications sets M.R.E. 504 out during marriage. wife Ste- band and applicable trials courts-martial. With ah, Military Rules phen Saltzburg A. et respect of confidential com- (6th ed.2006). § 504.02 Evidence during marriage, made it munications confi- we are concerned with the provides person “A has follows: privilege in this dential communications lege during relationship and after the marital concepts inter- history of the two is so disclose, prevent refuse another of both. require discussion twined as disclosing, any confidential communica- law, nor wife At common neither husband while tion made to the testify against the other. they separat- husband and wife and not were et 1 Kenneth S. Broun McCormick on 504(b)(1). provided ed as law.” M.R.E. (6th ed.2006); at 318 John However, apply: does not Henry at Com- Wigmore, Evidence in Trials (Chadbourn rev.1979). Law, §§ mon 600-601 spouse is proceedings in which one person or a crime disqualification sprang from This property child of jurisprudence: two canons of medieval either, first, a crime rule that an accused was not testify in be- his own behalf third committed proceeding;

cause his interest privilege prohibiting both are entitled to a second, (sworn concept that husband wife the use of one of as a witness them unsworn) one, were and that since the woman had no the other. This existence, exist, recognized separate legal lege however, does not when the that one. From those two husband or is the individual or one of doctrines, long-abandoned injured by now it followed the individuals the offense with lips that what was from the spouse inadmissible charged, which the other as in a the defendant-husband also was inadmissi- prosecution for spouse one assault other, ble from his wife. by bigamy, polygamy, for unlaw- cohabitation, ful abandonment wife or Trammel them, support children or failure to for (1980). 63 L.Ed.2d 186 using or transporting the wife for “white spousal disqualification “always purposes, slave” or other immoral or for recognized certain on founded forgery by spouse signature one i.e., supposed necessity, presumed impos- writing to a writing when the situations, sibility, specifically in defined would, genuine, apparently operate if obtaining Wigmore, other witnesses.” 2 su- prejudice of such other. (citation omitted). pra, § 612 excep- Such an XXVII, 148.e., chap. para. 1951MCM at 277. spousal disqualification tion to was made in drafters the Manual intended both common military law and American provision, spouse under this of an ac- law for in bodily cases which the trial was for compelled cused could “if testify be he injury spouse violence inflicted one on victim transgression [was] she with supra, § the other. Broun et at 319; spouse charged.” which the other Charles Winthrop, Military William Law and (2d al., Legal Legislative L. Decker et Ba- reprint). Precedents 335 ed.1920 sis, Courts-Martial, Manual for In promulgated a new (1951 ed.). States 235 Manual Courts-Martial reflect hand, justice changes military On the other confidential communi- resulting cations between enactment husband and wife were Justice, leged. §§ 10 U.S.C. entitled 800-940 spouse was who made the communica- (1951 MCM). 36(a), Normally, Article tion. such a communication could UCMJ, 936(a), § granted the Pres- not be disclosed unless that consented authority ident the prescribe proce- trial to disclosure or otherwise waived the dures, “including proof, However, modes of ... lege. require the court could shall, ap- so as he practicable, considers spouse of an accused to disclose the commu- far ply principles of nication, law and the rules request, at the accused’s even the generally recognized evidence in the trial of one who made it. 1951MCM 151.b.(2). criminal eases in the United States district chap. XXVII, para. 836(a) (emphasis courts.” 10 U.S.C. add- Leach, In United States v. ed). (1956), C.M.R. governing the 1951 all the first ease, this Court held that a wife was services, of the armed included President “injured,” paragraph within the a chapter entitled “Rules of Evidence.” 1951 148.e., by adultery. her husband’s act of chap.

MCM XXVII. It more akin to a interpreted “injured” the term to “embrace[ ] than treatise rules He of evidence. suffering arising mental from violations of adopted following regarding compe- relationship.” 7 the marital C.M.A. tency spouses testify: Although adultery 22 C.M.R. at 187. was not 148.e., competent paragraph Husband and wife are witnesses offenses listed merely favor each other. we concluded that the list was illus- trative, and wife are also witnesses not exclusive. C.M.A. at other, general each rule is C.M.R. explained the need The drafters later, opportu- years had another Nine we holdings Massey depart from the scope nity to determine the Massey: The effect of Rener. knowledge carnal the needs of charged compatible with accused was service, which, military especially accused’s over- daughter. Over the his own seas, military personnel large groups objection, his wife was closely knit dependents live in complaints the abuse. about their the victim’s Af- In these communities at 247-49. communities. C.M.A. life, beating and child generally in the accused had not been noting ter to- by parents cannot be child adultery, we that “the molestation indicated certainly facili- lerated and proper approach to consideration whether prescribed a rule evidence spouse in- tated charged against an offense the Manual. outrage upon not jures depends the other mari- or a violation of the to her sensibilities “the followed because Id. Rener was not bonds, upon some direct connection but injured by [adultery and unlawful property.” C.M.A. obviously directly which are cohabitation] 282, then held that: 254. We C.M.R. relationship.” to the martial [sic] deleterious Id. knowledge, even of carnal 1970s, Supreme incestuous, During early injury to a is not a direct when Rules testimony sent the Federal approved fall and spouse, causes her to Court which adoption. 1 Congress Evidence to for properly invoked without accused’s al., Rules Stephen Saltzburg A. et Federal justify In elimination order ed.2006). (9th 1, union, pt. at 4 there Evidence Manual of that shield to privileges nine proposed rules contained something must than conduct The more controlling use of those responsibil- four rules for its and abuses ities; direct, controversy significant palpable privileges. Because there must be some these, to, of, Congress opted for injury over instead invasion the interests arose single that mandated a common-law witness. al., Saltzburg approach privileges. et 282-83, at 254-55. 15 C.M.A. at Manual, Military swpra, Rules Evidence Rener, In consistent with amended, 501.02[2], Rules, Federal Massey, in holding our we overruled Leach 2, January signed into on were law injury adultery is to the and held that not an (1975); 88 Stat. 1926 Pub.L. No. merely spouse, al., Saltzburg et Federal Rules marital bonds.’” a ‘“violation pt. at 4-5. supra, C.M.A. C.M.R. later, this A little more than three months 15 C.M.A. at asked, an accused in the case of Court was 254). C.M.R. committing sexual offenses on convicted of child, Massey holding whether the a new Manual his own President issued Courts-Martial, light still valid the President’s 1969. Manual United was (1969 ed.). changes in We deter- rev. The 1969 Manual the 1969 Manual. Massey longer no viable.” approach previ- mined that “was retained the “treatise” Menchaca, evidentiary mat- regard ous Manual 148.e., “adultery” and C.M.R. We acknowl- paragraph ters. military edged that differences between “mistreatment of a child the other allowable, rules are and federal of evidence were added as offenses which add apply. change paragraph 148.e. to did privilege injury to the response to “mistreatment of child” were direct These additions with the rules of evi- Massey and Rener. was consistent holdings this Court’s for use federal district courts Army, Pamphlet 27-2 dence Dep’t of the Contents, Supreme proposed Court had Con- States, 1969, change expressed the gress, and that Revised Edition at Supreme intent of the interpreta- drafters overrule common law Massey. 23 C.M.A. at 48 C.M.R. at 540. tions of marital all support a conclusion is not adapted the Federal “crime property” military practice Rules to certainly unsympathetic are Saltzburg Rules of Evidence. 1 et Mili- construing view that Evidence, tary supra, at xv. Rath- generally “it is understood that the approach er than take common law given words should be their common and privileges approved by Congress, the Mili- McCollum, approved usage.” atM.J. tary many specific priv- Rules included (citation omitted). quotation marks ileges originally proposed by Court. approach The President took this But, is no in adopting there evidence military justice system’s because of the “de- the President meant to pendence large laymen, numbers amend, jettison, exceptions let alone those courts, temporary geographical and inherent paragraph listed in 148.e. of the personnel instability due the world- Rather, Analy- 1969 Manual. the Drafters’ wide deployment military personnel. Con- sis strong he evidence that meant to sequently, requires far more to both the husband-wife testi- stability than civilian Saltzburg law.” 2 et monial and the marital communica- Evidence, Military Rules supra, Moreover, privilege. tions this reading of (Drafters’ Analysis). 501.03 the principle Rule is consistent that strictly testimonial be “must con- M.R.E. 504 combined into one rule the accepted ‘only very strued and limited husband-wife and the confidential marital extent permitting that refusal privileges. communications For the first excluding public has a good relevant evidence time, it exceptions made the husband- transcending normally predominant prin- privilege applicable as to the mari- well ciple utilizing all rational means for ascer- Thus, privilege. communications there is Trammel, taining the truth.’” U.S. no marital confidential S.Ct. Elkins v. Unit- lege proceedings “[i]n in which one is 206, 234, ed 364 U.S. person with a crime (1960) (Frankfurter, J., L.Ed.2d 1669 dissent- 504(c)(2)(A). property of other.” ing)). therefore pur- hold for the Rule does not list of- 504(c)(2)(A), poses of M.R.E. ais encompassed fenses term “crime crime of the other person,” provided the drafters military judge in denying was correct insight some the scope exceptions: into of the Appellant’s motion in limine assert recognizes society’s The Rule thus over- privilege against testimony. his wife’s riding prosecution interest of anti- offenses____ Rule is similar to 1969 Manual Para. 148 e but has deleted IV. exceptions the Manual’s limitation of the of the Navy- decision occurring matters after Corps Marine Court of is Criminal marriage or otherwise unknown to the affirmed. being inconsistent the in- exceptions. tent of the RYAN, Judge (dissenting): Military Rules question do not is an anti- app. 22 A22-40 [hereinafter marital offense. This conclusion is intuitive Analysis]. Drafters’ and a matter of common But sense. scholarly dissent, Judge Ryan premise main- does not answer the wheth- itself,

tains that the er the Rule is “crime “adultery” property spouse,” deletion of the term from the Rule the actual appeared exception as it in the 1969 and the to the husband-wife con- (M.R.E.) v. person.” Al- against the See Military Rule of Evidence tained Gustafson Co., 115 S.Ct. loyd 513 U.S. here. which is issue (“we (1995) adopt premise 131 L.Ed.2d 1 re- 504 and the thereto construed, possible, be term should [a] judgments policy flect the meaning throughout”). give it a consistent regarding those communications between privileged and wife that are importantly, construction is More —and exempt- will communications that long-standing recognition to those accord with the from that See United person” ed “against the law that crimes criminal (C.A.A.F.2003) McCollum, 58 M.J. against person. refer to offenses violence (determining exception an to a whether See, LaFave, e.g., Wayne R. Substantive apply legal policy question lege ed.2003) (dis- “is (2d §§ 14-17 Criminal Law policy- political best addressed person); 1 against the Wil- cussing offenses making Our government”). elements of Greaves, A Charles liam Russell & S. O. duty interpret the law as on Crimes and Misdemeanors Treatise of the rule itself. written (1845) (discussing against the “offenses individuals”); persons of see also Keeble scope into inquiry In this 205, 206, States, 412 504(e)(2)(A) the M.R.E. (including mur- 36 L.Ed.2d must, therefore, focus on the der, manslaughter, rape, and assault with words “crime among per- kill “crimes intent to spouse.” “against A crime Commandant, son”); Relford spouse,” person ... of the defined Barracks, Disciplinary Ft. Leaven- Courts-Martial, Unit- either the Manual for worth, (2005 ed.) (MCM) or the ed States (1971) (equating an offense vio- L.Ed.2d “In construing Evidence. the lan- security person, physical of a lative of generally it guage of a statute or kidnapping and at issue in rapes such as the given that understood the words should be case, person of with a “crime approved usage.” their common and McCol- individual”). lum, (quotation marks omit- 58 M.J. 340 ted). against the per- of “crime[s] This definition spouse” is son of the other also consistent

It is not in accordance with the common or exception with the common view usage approved language “crime[s] See, e.g., privilege. M.R.E. the husband-wife of the other congressional (reaffirming 101 mandate phrase every include act within that 36(a) in Article harm, offend, might emotionally betray. or 836(a) (2000)). (UCMJ), 10 Justice a that includes these Such broad construction States, Supreme v. Bassett impermissibly limiting acts would render statutory excep- a Court examined whether “person of the other words a crime committed tion to the “for spouse” superfluous. See United in a against the other” was available 528, 538-39, Menasche, 513, 348 U.S. 75 S.Ct. 496, 137 (1955) (“It involving polygamy. case give duty our ‘to 99 L.Ed. is 06,11 165, (analyz- S.Ct. 34 L.Ed. effect, possible, every clause and word of statute’____” ing applicable to the Utah a federal statute (quoting Montclair v. Rams Territory). dell, 152, 391, 147, 107 U.S. L.Ed. (1883))). Supreme the com- The Court reaffirmed view, is approved mon law that “the wife my the common spouse], except

usage [as a witness her of “crimes person.” Bas- of violence spouse” here refers to crimes vio- cases sett, 505, 137 U.S. at 11 S.Ct. This definition lence Bowman, 222, 13 Pet. v. 38 U.S. consistent with the overall Stein reflects (1839)). Supreme The 10 L.Ed. structure of M.R.E. recognized spouse’s “humiliation repeated makes to “crimes Court references Bank, Savings outrage” polygamy adultery Keppel caused 197 U.S. Tiffin (1905) (“[I]t spouse, and that those offenses 25 S.Ct. 49 L.Ed. 790 disloyalty be “crimes which involve cannot in reason be said that the omission Bassett, gives implication ... relation.” U.S. at rise to the that it was Nonetheless, it.”). Court, 11 S.Ct. 165. Congress the intention of reenact ceding while the anti-marital nature of such any find the deletion of reference to the offenses, rejected expressly notion adultery present polygamy 504(c)(2)(A) either crime that exception problematic po- for the exception majority. sition of the lege.1 Id. adultery specifically Nor listed Supreme The Court’s conclusion that the Analysis addressing Drafters’ the M.R.E. statutory exception to the marital 504(c)(2)(A) exception. Manual Courts- was not available in the case of Martial, Analysis the Mili- bigamy compelling. telling, pur- More tary app. at A22-40 poses of Supreme is the Court’s Analysis]. [hereinafter Drafters’ determination that legislature while a can The absence of as a listed parameters change the mari- “ancient” present MCM or either the Drafters’ statute, via of a Analysis ignored. cannot be adjudged working statute “should not Analysis The Drafters’ does reference anti- departure from old and established marital offenses: imperatively unless the language demands such Id. construction.” provision proposed This is taken Fed added). (emphasis 505(c)(1) part eral Rule and reflects in does not demand the Supreme Wyatt Court’s decision employed by majority. construction recog L.Ed.2d 931 thus Rule This Court follow decision society’s overriding prose nized interest reasoning Bassett, offenses____ cution of anti-marital which has not been overruled. We have no Rule is similar to 1969 Manual Para. 148 language “imperatively demanding” exemp- e.... tion from the husband-wife And problematic history we have and checkered (emphasis Drafters’ at A22-40 add- in both the conflicting former MCMs and the ed) (citation omitted). Wyatt v. United judicial pre- decisions from this Court on the States dealt anti-marital of- cise issue this ease. M.J. Act, Mann fense—violations of the 18 U.S.C. 418-20. § 2421 Wyatt, 362 U.S S.Ct. 901. Violations of this statute simi- point Illustrative of this is the fact that the lar offenses were reflected as evidentiary MCM —with we rule privilege by the husband-wife present specifically case—does not list specific exception: in their own adultery the crime of as an to the 504(c)(2)(C). These observations are a long-standing husband-wife But it independent source of concern me specifically does list anti-marital of- 504(c)(2)(C). point important Analysis, that the Drafters’ fenses. M.R.E. when it not lan- plain does corroborate the Also, specifically MCM listed rule, guage questionable prece- is of exception. para. as such MCM weight. dential (1969 ed.) (para. 148.e rev. 148.e omitted 1980). by change be, Sept. Ordinarily, policy may and how- Whatever best language where exists an earlier version of ever useful such as admissions the one a rule and is prove removed a later edition of case would the offense adul- tery, present e.g., the later controls. See of the M.R.E. statutory exception majority’s analysis 1. The exam- in this case than lan- facially gives actually greater guage ined in Bassett traction to before us. to in- This case involved stretch so far as cannot knowledge. Appellant of “crime clude within the and carnal spouse.” This de- relationship with he had a sexual denied that only by supported termination have did AM. AM testified itself, by both the language of the rule relationship with her. The decisional sexual precedent. common alleged Appellant or the crux was whether ignore no these authorities There is reason truthful, infidelity ques- object conjecture supposition as to the based on resolved either tion that could have been Analysis, which precise scope of the Drafters’ wife, T, testimony Appellant’s way. The is not itself rule. her, adultery to admitted his majority’s that I dissent from Given balance tipped the well have erred, ruling and hold that the lower court key Hawkins v. Appellant on this issue. See the error was question remains whether 74, 79, 79 record, examining the I harmless. After (1958) (concluding that “after L.Ed.2d say testimony Appellant’s cannot that the say cannot examining record we influence on wife did not have substantial testimony privileged] did inadmissible [wife’s military judge. See v. United Kotteakos jury”). influence on the have substantial respectfully L.Ed. 1557 dissent.

Case Details

Case Name: United States v. Taylor

Court Name: Court of Appeals for the Armed Forces

Date Published: Apr 5, 2007

Citation: 64 M.J. 416

Docket Number: 06-0319/MC

Court Abbreviation: C.A.A.F.