

   
   
   
   U.S. v. Watt



United States, Appellee
v.
Kenneth R. WATT, Private First Class
U.S. Marine Corps, Appellant
 
 
No. 98-0306
Crim. App. No. 96-1587
 
 
United States Court of Appeals for the Armed
Forces
Argued November 19, 1998
Decided April 7, 1999


CRAWFORD, J., delivered the opinion of the
Court, in which COX, C.J., and EFFRON, J., joined. GIERKE, J., filed an
opinion concurring in part and in the result. SULLIVAN, J., filed a dissenting
opinion.
 
 


Counsel
For Appellant: Major Stephen Chace,
USMC (argued); Lieutenant Commander Patricia M. Sulzbach, JAGC,
USN (on brief); Lieutenant Jeffrey K. Van Nest.
For Appellee: Major Troy D. Taylor,
USMC (argued); Colonel Kevin M. Sandkuhler, USMC, Commander D.H.
Myers, JAGC, USN, and Captain Paul D. Kovac, USMC (on brief).
Military Judge: Harvey A. Hopson
 
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.


Judge CRAWFORD delivered the opinion of the
Court.
Contrary to his pleas, appellant was convicted
by members of rape, in violation of Article 120, Uniform Code of Military
Justice, 10 USC § 920. The convening authority approved the sentence
of a dishonorable discharge, 8 years confinement, total forfeitures, and
reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed
the findings and sentence in an unpublished opinion.
We granted review of the following issues:



I. WHETHER APPELLANT WAS DENIED A FAIR TRIAL
WHEN THE MILITARY JUDGE ABANDONED HIS ROLE
AS
AN IMPARTIAL AND NEUTRAL ARBITER AND ASSUMED
THE ROLE OF A PARTISAN ADVOCATE FOR THE
PROSECUTION BY BADGERING APPELLANT WITH A
QUESTION HE KNEW APPELLANT COULD NOT ANSWER.
II. WHETHER APPELLANT WAS DENIED HIS CONSTITUTIONAL
RIGHT TO PRESENT A DEFENSE BECAUSE THE MILITARY
JUDGE RULED THAT HE COULD NOT ANSWER THE JUDGES
QUESTION ABOUT THE REASONING PROCESS THAT
LED HIM
TO MAKE SEXUAL ADVANCES ON THE ALLEGED VICTIM.



We also specified the following issue:



WHETHER APPELLANT WAS DENIED THE FUNDAMENTAL
RIGHT TO A FAIR TRIAL WHEN THE MILITARY JUDGE RULED A MEMBERS QUESTION
CALLED FOR AN IMPERMISSIBLE RESPONSE FROM APPELLANT, INSTRUCTED APPELLANT
TO NOT GIVE THE ANSWER, AND THEN PROCEEDED TO ASK SIMILAR QUESTIONS AND
ALLOW TRIAL COUNSEL TO ASK SIMILAR QUESTIONS WHICH CALLED FOR THE ANSWER
APPELLANT HAD BEEN INSTRUCTED NOT TO GIVE.



We now reverse for the reasons set forth below.

FACTS
Lance Corporal Salyer, the ex-girlfriend of
appellants roommate, Lance Corporal Elder, became extremely intoxicated
while celebrating her birthday at the Tri-Mod Enlisted Club. She went with
Elder back to his room, where the two engaged in sexual intercourse. Afterwards,
Elder went back to the club. A few hours later, Elder told appellant that
he did not want to spend the night with Salyer but that appellant could.
Appellant went back to the room and began petting Salyer. She became aroused
and, according to appellant, moved his hands down to her panties. Eventually,
they had sexual intercourse after she removed her panties, during which
she grabbed him around the back and made moaning sounds. After appellant
had ejaculated, Salyer asked him if he was Elders roommate. When appellant
replied yes, she pushed him off. That is the first thing that she remembers.
She then got dressed, left the room, went downstairs, and began to cry.
She reported what happened to the military police.
The granted and specified issues are tied directly
together and stem from an exchange at an Article 39(a)*
session held to rule on the admissibility of appellants sworn answer to
a members question. Appellant was on the stand as a witness in his own
defense. One of the members submitted a set of questions (AE XXIV), and
trial counsel called for a 39(a) session on the last one: "At the time
prior to intercourse, did you have reason to believe she would have had
intercourse with you if she had known who you were?"
After the members were excused, counsel and
the military judge discussed the proposed question. The military judge
pointed out that the question basically asked for a "yes" or "no" answer,
and trial counsel agreed that she had no objection to the form of the question.
What trial counsel wanted to know was, if appellant had such a belief,
what was the basis for that belief. The military judge put the question
as originally asked to appellant, and he answered, "Yes, I do, sir." The
judge then asked him what that reason was. Appellant's answer: "Sir, she's
known around the barracks as being easy. I mean, I know many people that
have only been with her for one night or have only known her for a very,
very short time and have been with her sexually."
Trial counsel objected to the question on the
basis that sexual reputation is inadmissible under Mil.R.Evid. 401 and
412, Manual for Courts-Martial, United States (1995 ed.).
Before the members were called back in, the
following exchange occurred between the military judge and appellant:



MJ: PFC, let me caution you now. Nowhere
in your response are you going to utter what you believe you have heard
her reputation to be around the barracks.
Do we understand that?
WIT: Yes, sir.
MJ: I don't want those words coming off your
lips in this courtroom.
Bring the members back in, please.



Once the members returned, the military judge
asked appellant the permissible questions from AE XXIV. The military judge
then began to address a second member's questions (AE XXV), as follows:



Q[MJ]: Describe in your own words then --
addressing [AE] XXV, and those past two questions have been related to
this document -- describe in your own words why you thought you could take
advantage of somebody that you hardly knew and that you knew to be drunk
and passed out?
A[WIT]: Sir, at that point in time, I didn't
know if she was passed out or not. I made a sexual move towards her to
see if there would be any response back towards me as in anything leading
to sexual intercourse.
Q: Let me stop you. I understand what you did.
My question to you is why? That is, you're telling me that you made a sexual
move towards her. You didn't know her; you knew her to be drunk or at least
intoxicated or having drunk -- having something to drink that evening and
had thrown up. You previously testified that although you didn't know with
absolute certainty, you believed her at least to be asleep. What was there
in your mind that led you to believe you could, to use your words, make
a sexual move on her? What was going through your mind at that time that
made you believe that it was appropriate to do that? Or can you answer
that question?
A: I can't answer that. I can't answer that,
sir.



Of course, appellant had an answer, a truthful
answer. However, it was not admissible per the judges ruling at the close
of the Article 39(a) session, and the judge had been very firm in telling
appellant what he could not say. Yet the judge persisted in asking the
very same question which he previously had told appellant he could not
answer. Appellant could only respond the way the judge told him to respond
during the Article 39(a) session. Then the military judge did it again:



Q: I believe this is the question that you've
already said you can't answer, but let me make certain of that. As you
sit here, can you describe in your own words what the thoughts were that
were going through your mind that prompted you to make this move on her
sexually to see what kind of response you would get? Were you attracted
to her? Was it just a desire for sex with her? I mean, you tell me, or
can you say?
A: Sir, yes, I am attracted to her; but other
than that, I can't say.



After these questions by the military judge, trial
counsel re-crossed, and then some more questions from members were asked.
Appellant was studiously avoiding answering in any way that was close to
that about which the judge had admonished him. Finally, trial counsel asked
even more questions.



Q: PFC Watt, in answer to one of the members
questions, had you ever gone up and tried to meet her because if you were
so attracted to her, you said, no, you're not the type of person that would
just go up and try to meet someone; right? That's what you just said?
A: Yes, ma'am.
Q: But you'd go up and just have sex with them?
A: Maam, I can't answer that question right
now because I was instructed by the judge not to.
Q: PFC Watt, the question's very simple. You
wouldn't -- you wouldn't go up and say, Hi, my name is PFC Ken Watt. You're
not the type of person that would say that?
A. Yes, ma'am.
Q: That's what you just answered, the judges
question?
A: Yes, maam.
Q: You're not the type of person who would
go up and introduce yourself and say hello when you'd just seen someone
else, that you're not that type of person?
A: Yes, ma'am.
Q: And that you're not the type of person --
but you are the type of person, you also testified -- that would just go
up and have sex with someone without introducing yourself. That's what
you're saying?
A: Ma'am, I didn't say I'd just go up and have
sex with somebody.
 

* * *

Q: So you are the type of person, based on
your testimony, that would have sex with someone that you hadn't met?
A: Yes, ma'am.
Q: But you are too shy to meet them?
A: Ma'am, like I said earlier, I made a sexual
motion towards her and she granted it by her actions, ma'am.
Q: PFC Watt, that's not my question. You're
too shy to go up and meet her; is that what you're saying?
A: Yes, ma'am.
Q: But you're not too shy to go and have sex
with her?
A: No, ma'am.
Q: Even though you hadn't met her?
A: True.
Q: Even though you didn't say hello? Even though
you didn't say, "My name is PFC Ken Watt"? Even though you didn't say anything?
A: Correct.
Q: Do you know how ridiculous you sound?
MJ: The members will disregard that last comment.
It was inappropriate and should not have been made and you may not consider
it for any reason.
Captain Ryan [trial counsel], that will not
be done again.



Trial defense counsel never objected to the line
of questioning by either the military judge or trial counsel. Nor did defense
counsel request another Article 39(a) session to address this questioning
in light of the previous session.

DISCUSSION
An honest and reasonable mistake of fact as
to consent is a defense in rape cases. United States v. Willis,
41 MJ 435, 438 (1995); United States v. True, 41 MJ 424, 426 (1995);
United
States v. Greaves, 40 MJ 432, 433 (CMA 1994); United States v. Taylor,
26 MJ 127, 128 (CMA 1988). In United States v. Woolheater, 40 MJ
170, 173 (CMA 1994), the Court held that a defendant has a constitutional
right to present exculpatory evidence.
In Greaves, the Court held that the
defendants beliefs about the victims sexual relations, if any, with persons
unknown to him, were not relevant to whether the victim was actually consenting
with him at that time. 40 MJ at 437-38.
At issue in this case is the role of the judge
as to this defense. "[A] military judge has a sua sponte
duty to insure that an accused receives a fair trial." United States
v. Fleming, 38 MJ 126, 129 n.* (CMA 1993). In performing this function,
the judge should "scrupulously avoid[] even the slightest appearance of
partiality." United States v. Shackleford, 2 MJ 17, 19 (CMA 1976).
"Public confidence in the integrity and impartiality of a judge is sustained
in large part by the conduct of a judge during the proceeding.... In the
military, a judge may not abandon his role as an impartial party and assist
in the conviction of a specific accused." United States v. Reynolds,
24 MJ 261, 264 (CMA 1987). The judge is not a "mere figurehead" or "simply
an umpire in a contest between the Government and accused." United States
v. Kimble, 23 USCMA 251, 253, 49 CMR 384, 386 (1974). The judge, pursuant
to RCM 801(c), Manual, supra, has authority to "obtain evidence
in addition to that presented by the parties." Likewise, Mil.R.Evid. 614(b),
Manual, supra, permits the judge to question witnesses.
These duties require a delicate balance by
the military judge. "Because 'jurors are ever watchful of the words that
fall from him, a military judge must be circumspect in what he says to
the parties and in how he examines witnesses." United States v. Loving,
41 MJ 213, 253 (CMA 1994)(citation omitted).
Here, the military judge compounded the problem
created by the questioning, and most likely encouraged the doubts of the
members, by instructing them as follows on appellant's answer to trial
counsel's question:



Members of the court, in response to a question
from
Captain Ryan, the accused indicated that he
can't answer that question because I instructed him he could not during
an Article 39(a) session in response to a question from me. The accused
responded with an answer that was inadmissible as evidence and improper
for you to hear, and I instructed him that he would not repeat that in
this courtroom. That remains my ruling. You may not consider his answer
that he can't answer that question because I told him not to for any reason
whatsoever. It remains improper.



Far from rectifying the error, the military judges
actions and this instruction more than likely led the court members into
believing that appellant had no basis (as distinguished from an inadmissible
reason) for believing that the victim consented. By permitting the question
but handcuffing appellant from answering, the military judge enabled the
prosecution to argue that appellant was a liar, and that his explanation
for believing that the victim consented was "ridiculous." Appellant was
forced to sound like he had sex with a sleeping woman and did not know
why. Absent any assistance from the judge or defense counsel, including
proper instructions, appellant was in fact left to defend himself without
assistance and with no knowledge of the rules of criminal procedure or
the rules of evidence.
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is reversed. The findings of guilty and
sentence are set aside. The record of trial is returned to the Judge Advocate
General of the Navy. A rehearing may be ordered.
FOOTNOTE:
* Uniform Code of
Military Justice, 10 USC § 839(a).
 
 
GIERKE, Judge (concurring in part and in the
result):
I agree with the result and rationale of the
majority opinion. However, I decline to join any suggestion that
defense counsel was ineffective.
 
 
SULLIVAN, Judge (dissenting):
I dissent. It may well have been unfair (and
perhaps legal error) for the trial judge to allow appellant to be put in
a position while he was testifying where he could not give full answers
to questions that were being asked of him. I note, however, that no legal
authority for such error is cited by the majority. In any event, I believe
such error, if it did occur, was harmless beyond a reasonable doubt in
the circumstances of this case.
Under the controlling law in this case, the
prosecution was required to show that appellant had sexual intercourse
with the victim without her consent. Even if the prosecution had established
that the alleged victim did not consent, appellant might still have defended
himself on the basis that he made an honest and reasonable mistake of fact
as to the alleged victims consent. Clearly, evidence of the alleged victims
reputation for engaging in sexual intercourse was not relevant or admissible
to show that she consented to appellant on the night in question. See
United States v. Greaves, 40 MJ 432 (CMA 1994). However, evidence of
an accuseds knowledge of the alleged victims sexual reputation could,
in some circumstances, be a factor which might bear on the honesty of a
claim of mistake as to consent in a particular rape case. See United
States v. Willis, 41 MJ 435, 438 (1995); United States v. True,
41 MJ 424, 426 (1995); United States v. Elvine, 16 MJ 14, 18 (CMA
1983). Nevertheless, as this court said in Elvine:



[T]he fact that appellant knew that she had
some type of reputation for "coming on" in her unit was not shown to be
an important issue in this case.



Id.
Here, like in Elvine, the fact that
appellant knew the sexual reputation of the victim as "being easy" was
not important or "weighty." See United States v. Scheffer,
523 U.S. 1, 4 (1998). This reputation evidence was not important here,
because the victim was sick, asleep, and in such a drunken state that she
could not have consented. Moreover, appellant had not even met the victim
before he raped her. In these circumstances, undisputed at trial, it would
not matter what the sexual reputation of the victim was-such a drunken
victim could not give consent anyway since she was passed out and incoherent.
See
United States v. Palmer, 33 MJ 7, 9 (CMA 1991).
It is also undisputed that appellant knew she
was in this state, not only by his personal observation of her drunken
condition, but because Lance Corporal Elder told him so, and even told
appellant not to "mess with her." Therefore, I conclude that the judge
properly tried to keep out the evidence of the victims sexual reputation
pursuant to Mil. R. Evid. 412, Manual for Courts-Martial, United States
(1995 ed.).
The judge clearly did so in a poor fashion.
That may have amounted to error, but as I have said before, if it was error,
it was harmless in this case. The jury properly heard all the relevant
evidence concerning the alleged victims condition and appellants knowledge
of it. In my view, it overwhelmingly showed her incapacity and appellants
knowledge of that fact. Appellants state of mind concerning the victims
consent was simply not material in this context. See generally United
States v. Valenzuela-Bernal, 458 U.S. 858 (1982)(constitutional violation
requires showing denial of testimony which would be material and helpful
to defense).
No one has the right to rape an unconscious,
drunken female. It does not matter what the victims reputation in this
case was, or whether she was a nun or a prostitute, or what appellant believed
her reputation was. See United States v. Palmer, supra.
I would affirm. Art. 59(a), UCMJ, 10 USC § 859(a).
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