                         UNITED STATES, Appellee

                                        v.

                       Kimberly L. COLLIER,
              Aviation Machinist’s Mate Third Class
                       U.S. Navy, Appellant

                                  No. 08-0495
                        Crim. App. No. 200601218

       United States Court of Appeals for the Armed Forces

                        Argued December 17, 2008

                           Decided May 18, 2009

RYAN, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN and STUCKY, JJ. joined. BAKER, J., filed a
separate dissenting opinion.



                                     Counsel


For Appellant: Captain Kyle Kilian, USMC (argued); Lieutenant
W. Scott Stoebner, JAGC, USN (on brief).


For Appellee: Colonel Louis J. Puleo, USMC (argued); Brian K.
Keller, Esq. (on brief).


Military Judges: Michael J. Catanese, Daniel E. O’Toole, and
Christopher D. Connor


            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Collier, No. 08-0495/NA



     Judge RYAN delivered the opinion of the Court.

     This case presents the question whether the military judge

erred in granting the Government’s motion in limine prohibiting

Appellant’s defense counsel from cross-examining HM2 C, the main

Government witness, about an alleged homosexual romantic

relationship between her and Appellant and from introducing any

evidence of such a relationship.1    While the military judge did

permit cross-examination about a close friendship, the defense

that Appellant wanted to present was that HM2 C framed Appellant

for larceny as a result of their romantic relationship ending

badly.   Because of this ruling, Appellant was free only to

assert the motivation of an angry friend rather than a

disappointed lover; as the Government then argued in its

closing, the motivation of an angry, vengeful friend “strains

all logic; it’s just not credible.”

     The military judge’s ruling prevented Appellant’s counsel

from fully exploring HM2 C’s bias and motive to misrepresent the

truth, and precluded Appellant from presenting her theory of the

1
  Upon Appellant’s petition, we granted review of the following
issue:

     WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY
     EXCLUDING, PURSUANT TO M.R.E. 403, RELEVANT EVIDENCE
     OF A PRIOR HOMOSEXUAL RELATIONSHIP BETWEEN APPELLANT
     AND A CENTRAL GOVERNMENT WITNESS OFFERED BY THE
     DEFENSE TO SHOW BIAS AND MOTIVE TO MISREPRESENT ON THE
     PART OF THE GOVERNMENT WITNESS.


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United States v. Collier, No. 08-0495/NA


case.    Under the facts of this case, this was a violation of

Appellant’s Sixth Amendment right to confront a witness against

her.    See Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986)

(“[A] criminal defendant states a violation of the Confrontation

Clause by showing that he was prohibited from engaging in

otherwise appropriate cross-examination designed to show a

prototypical form of bias on the part of the witness . . . .”).

Under the circumstances of this case, including the fact that in

its closing argument the Government exploited the evidentiary

limitation it requested to criticize the theory with which

Appellant was left, we find this constitutional error was not

harmless beyond a reasonable doubt.     The decision of United

States Navy-Marine Corps Court of Criminal Appeals (CCA)

upholding the military judge’s ruling is reversed.

                               I.   Facts

        A special court-martial composed of members convicted

Appellant, contrary to her pleas, of one specification of

larceny of military property and one specification of

obstructing justice by wrongfully endeavoring to influence the

testimony of a witness, in violation of Articles 121 and 134,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 921, 934

(2000).    The sentence adjudged by the court-martial and approved

by the convening authority included a bad-conduct discharge,

confinement for six months, and reduction to the lowest enlisted


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United States v. Collier, No. 08-0495/NA


grade.   The United States Navy-Marine Corps Court of Criminal

Appeals affirmed.    United States v. Collier, No. NMCCA

200601218, 2008 CCA LEXIS 53, at *29, 2008 WL 495700, at *11 (N-

M. Ct. Crim. App. Feb. 21, 2008) (unpublished).

     Prior to her court-martial, Appellant served as the tool

custodian for Helicopter Combat Support Squadron EIGHT (HC-8) in

Norfolk, Virginia.   The larceny charge in this case involves

tools alleged to have been taken from this command.   Hospitalman

Second Class (HM2) C testified for the Government that she found

these tools in her home.   HM2 C testified that she and Appellant

had been good friends and that Appellant had stayed at her home

four or five nights a week.   Appellant kept some of her

belongings at HM2 C’s home, specifically, in HM2 C’s son’s

bedroom.   At some point, Appellant and HM2 C had a falling out

and HM2 C requested that Appellant not return to HM2 C’s home.

The women disagreed about how Appellant could retrieve her

belongings from HM2 C, which eventually resulted in Appellant

asking her command for help in obtaining several items she

claimed were still at HM2 C’s house, including tools, a

television, and a diamond ring.   HM2 C testified that when she

checked her home for these items, she first found a bag of tools

in her garage, and later found more tools in a chest of drawers

in her son’s room.




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United States v. Collier, No. 08-0495/NA


      After each discovery, HM2 C consulted with her command and

then arranged for the return of the tools to Appellant’s

command.   There were 215 tools returned to HC-8 by HM2 C, of

which approximately 65 were etched with the command code “B10”

or “B1.”   Among the tools returned was an etcher.   Testimony at

trial established that prior to HM2 C turning them in, no one

had noticed this large quantity of tools missing.    This was true

even though a cursory visual check of the locker in which such

tools were kept was done not long before the tools were turned

in.   Testimony also established that while all of the recovered

tools were among those used by HC-8, many, if not all, of them

could be purchased at retail stores such as Sears.

      Some time after Appellant had been charged with larceny of

the tools, HM2 C encountered Appellant at a beauty salon.    HM2 C

testified that at the salon, she overheard Appellant speaking on

her cell phone.   According to HM2 C, while Appellant was

standing close to her, Appellant said into her cell phone:

“Yeah, we should get this bitch; let’s get her.”     When HM2 C

left the salon, she found that a tire on her car had been

slashed.   Appellant admitted to the civilian authorities that

she had slashed the tire.   Based on this incident, Appellant was

charged with one count of obstructing justice by wrongfully

endeavoring to influence the testimony of a witness, under

Article 134, UCMJ.


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United States v. Collier, No. 08-0495/NA


     Prior to court-martial, the Government filed a motion in

limine seeking to prohibit Appellant’s defense counsel from

cross-examining HM2 C about an alleged homosexual romantic

relationship between her and Appellant and from introducing any

evidence of such a relationship.       The basis of the Government’s

motion was threefold:   (1) no such relationship existed, and

even if it did exist it was not relevant; (2) even if the

relationship was relevant, prejudice created by statute and Navy

policy prohibiting homosexual conduct would substantially

outweigh the relevance; and (3) allowing this line of

questioning would “serve only to embarrass and harass the

witness.”

     At the hearing on the motion, trial counsel advanced two

additional arguments.   First, Appellant could show sufficient

bias by inquiring into the fact that the women were no longer

friends because the women had argued about HM2 C’s daughter and

also because HM2 C’s boyfriend didn’t like Appellant.      Second,

the factual dispute about whether the two women actually had a

romantic or sexual relationship was a collateral matter that

threatened to take over the proceedings and confuse the members.

During the hearing trial counsel further asserted that evidence

of a homosexual relationship was “too inflammatory” for the

members to hear.   As part of this assertion, trial counsel

emphasized the homosexual nature of the relationship and linked


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United States v. Collier, No. 08-0495/NA


the danger of unfair prejudice to the congressional finding that

“homosexuality presents an unacceptable risk to the high

standards of morale, good order, and discipline in the

military.”   Transcript of Record at 54, United States v.

Collier, No. 08-0495; 10 U.S.C. § 654(a)(14) (2000).

     The defense opposed the motion, arguing that the Sixth

Amendment guarantees the right to confront and cross-examine

witnesses and that the limitation requested by the Government

violated those rights.   Defense counsel argued that cross-

examination and any related extrinsic evidence of a romantic

homosexual relationship would be admissible under Military Rule

of Evidence (M.R.E.) 608(c) to support a theory that HM2 C was

biased against Appellant and had a motive to lie in her

testimony because their relationship had ended badly.    See

M.R.E. 608(c) (“Bias, prejudice, or any motive to misrepresent

may be shown to impeach the witness either by examination of the

witness or by evidence otherwise adduced.”).    In addition,

defense counsel argued that this evidence would be relevant to

show that the tire slashing was due to Appellant’s anger over

the breakup of their relationship, rather than done “with the

intent to influence” HM2 C’s testimony, as required to prove the

obstructing justice charge.   Manual for Courts-Martial, United

States pt. IV, para. 96b(3) (2005 ed.) (MCM).




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United States v. Collier, No. 08-0495/NA


     While the Government claimed that there was no qualitative

difference between a friendship and a romantic relationship for

purposes of showing bias, defense counsel disagreed, arguing:

“What motivates a person to do something, or how they may be

biased, I think, are completely different, apples and oranges,

between a friendship and a romantic relationship, whether it be

homosexual or heterosexual.”

     After hearing argument on the motion, the military judge

stated on the record that the defense had “presented sufficient

evidence, for the purposes of the motion, that there was such a

sexual relationship.”   Transcript of Record at 75-76, Collier,

No. 08-0495; see M.R.E. 104(a) (“Preliminary questions

concerning . . . the admissibility of evidence . . . shall be

determined by the military judge.”).   In his formal ruling on

the motion, the military judge did not make a conclusive finding

of fact as to whether the sexual relationship actually occurred,

although he did note that during the hearing on the motion:

     [T]he defense presented the testimony of the
     accused that there was such a sexual
     relationship. The accused also testified that
     their relationship lasted four months and ended
     just prior to the witness reporting the alleged
     larceny. The accused also testified that their
     relationship was always sexual, until it ended on
     or about early March 2004. The government
     presented evidence by cross-examination of the
     accused and by affidavit that tends to refute any
     sexual aspect to the relationship.




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United States v. Collier, No. 08-0495/NA


Findings and Ruling on Government Motion In Limine at 1, United

States v. Collier, Special Court-Martial, Tidewater Judicial

Circuit (Nov. 24, 2004).   The military judge found that the

“nature of the relationship has some relevance to the

determination of [the bias] issue by the jury.”    Id. at 2.    He

then concluded that after “balancing this relevance with M.R.E.

403 and M.R.E. 611, the court finds that the sexual nature of

this relationship is not sufficiently relevant.”   Id.   Finally,

the judge ruled:

     [T]he defense may ask, on cross-examination, if the
     witness would characterize the relationship as close,
     personal and/or emotionally close. The defense may
     ask her if the relationship was closer than ordinary
     friends. Pursuant to M.R.E. 608(c), the defense may
     also introduce extrinsic evidence on the nature of the
     relationship including testimony or documents, if
     otherwise admissible. However, the defense will not
     open the issue of any alleged sexual acts between the
     witness and the accused. Specifically, the defense
     will not ask any witness if the relationship was
     sexual, homosexual, intimate or romantic.

Id. (emphasis added).

     The CCA found that the military judge did not abuse his

discretion when he limited defense counsel’s cross-examination

of HM2 C.   Collier, 2008 CCA LEXIS 53, at *11, 2008 WL 495700,

at *4.   Specifically, the CCA stated:   “Reviewing the facts

before the military judge at the time of his ruling, we conclude

that he correctly balanced the probative value against the

prejudicial impact of evidence that would have been of a



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United States v. Collier, No. 08-0495/NA

particularly inflammatory nature in a trial by court-martial.”

Id. at *10, 2008 WL495700, at *4.       In support of this

conclusion, the CCA cited “‘the high degree of antipathy to

homosexuality in the armed forces’” as well as the fact that

“‘[a] person who engages in homosexual conduct . . . is subject

to mandatory discharge, with very limited exceptions.’”        Id.

(quoting United States v. Phillips, 52 M.J. 268, 273 (C.A.A.F.

2000) (Effron, J., dissenting)).

                            II.   Discussion

       A.   The Sixth Amendment and limits on cross-examination

       It is well settled that “the exposure of a witness’

motivation in testifying is a proper and important function of

the constitutionally protected right of cross-examination.”

Davis v. Alaska, 415 U.S. 308, 316-17 (1974).       Through cross-

examination, an accused can “expose to the jury the facts from

which jurors . . . could appropriately draw inferences relating

to the reliability of the witness.”      Id. at 318.   A limitation

on an accused’s presentation of bias evidence may be a violation

of the Sixth Amendment right to confront witnesses.      The

question is whether “[a] reasonable jury might have received a

significantly different impression of [the witness’s]

credibility had [defense counsel] been permitted to pursue his

proposed line of cross-examination.”      Van Arsdall, 475 U.S. at

680.   The right of cross-examination is not unlimited, however;


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United States v. Collier, No. 08-0495/NA

the accused’s confrontation right does not give, for example,

free license to cross-examine a witness to such an extent as

would “‘hammer th[e] point home to the jury.’”   United States v.

James, 61 M.J. 132, 135 (C.A.A.F. 2005) (quoting United States

v. Nelson, 39 F.3d 705, 708 (7th Cir. 1994)).    Whether

sufficient cross-examination has been permitted depends on

whether the witness’s motivation for testifying has already been

exposed and “further inquiry . . . would [be] marginally

relevant at best and potentially misleading.”    United States v.

Carruthers, 64 M.J. 340, 344 (C.A.A.F. 2007) (finding cross-

examination of coconspirator about his pretrial agreement was

sufficient even though the military judge had refused to permit

questions related to the term setting a maximum punishment).

     In this case, the military judge’s ruling prohibited all

cross-examination and extrinsic evidence regarding a sexual or

romantic relationship between Appellant and HM2 C.   This did not

allow Appellant to expose the alleged nefarious motivation

behind HM2 C’s allegations and testimony.   The Government argues

that Appellant was able to conduct sufficient cross-examination

without revealing whether the relationship between the two women

was a romantic one.   However, it is intuitively obvious that

there is a qualitative difference between the breakup of a

friendship and a badly ended romantic relationship, whether that

romantic relationship was sexual or not.    As has long been


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United States v. Collier, No. 08-0495/NA

recognized, “Heav’n has no Rage, like Love to Hatred turn’d.”

William Congreve, The Mourning Bride 39 (Jacob Tonson 1703)

(1697).   We have no doubt that the romantic nature of a

relationship has a “special relevance” to motivation such that

allowing additional cross-examination in that area is not a mere

“opportunity . . . to hammer th[e] point home to the jury.”

Carruthers, 64 M.J. at 344 (citation and quotation marks

omitted).

     Appellant claimed during her testimony on the motion in

limine that her relationship with HM2 C went beyond friendship,

to a sexual and romantic relationship that lasted four months,

during which time she lived with HM2 C.    If the members had been

given evidence of a sexual and romantic relationship between HM2

C and Appellant, they might have had a significantly different

impression of HM2 C’s credibility.   In the context of a romantic

relationship turned sour, Appellant’s theory of the case, in

which HM2 C framed Appellant, could have been credible to the

panel.

     Of course, “trial judges retain wide latitude insofar as

the Confrontation Clause is concerned to impose reasonable

limits on such cross-examination based on concerns about, among

other things, harassment, prejudice, confusion of the issues,

the witness’ safety, or interrogation that is repetitive or only

marginally relevant.”   Van Arsdall, 475 U.S. at 679.   In this


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United States v. Collier, No. 08-0495/NA

case, the military judge acknowledged that Appellant had a Sixth

Amendment right to confront HM2 C, but ruled that evidence of a

sexual relationship between them was not admissible under M.R.E.

403 and M.R.E. 611, both of which reflect the concerns cited by

the Supreme Court in Van Arsdall.   See M.R.E. 403 (requiring a

military judge to decide whether the probative value of evidence

is “substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the members, or by

considerations of undue delay, waste of time, or needless

presentation of cumulative evidence”); M.R.E. 611(a) (allowing

military judge to control the mode and order of interrogating

witnesses, including to “protect [them] from harassment or undue

embarrassment”).

     A military judge’s ruling that bias evidence is

inadmissible is reviewed for an abuse of discretion.   United

States v. Moss, 63 M.J. 233, 236 (C.A.A.F. 2006).   For the

ruling to be an abuse of discretion, it must be “more than a

mere difference of opinion”; rather, it must be “‘arbitrary,

fanciful, clearly unreasonable’ or ‘clearly erroneous.’”    United

States v. McElhaney, 54 M.J. 120, 130 (C.A.A.F. 2000) (quoting

United States v. Miller, 46 M.J. 63, 65 (C.A.A.F. 1997); United

States v. Travers, 25 M.J. 61, 62 (C.M.A. 1987)).   Although “[a]

military judge enjoys wide discretion in applying [M.R.E.]

403[,] . . . [t]his Court gives military judges less deference


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United States v. Collier, No. 08-0495/NA

if they fail to articulate their balancing analysis on the

record.”    United States v. Manns, 54 M.J. 164, 166 (C.A.A.F.

2000) (citations and quotation marks omitted).   In this case,

the military judge did not make any findings of fact or

conclusions of law about the objections raised by the Government

under R.C.M. 611 and M.R.E. 403; he merely recited their

arguments.   Because of this failure to articulate his analysis,

we accord the military judge’s ruling less deference and will

examine the record to assess both his decision and that of the

CCA.   United States v. Bins, 43 M.J. 79, 85-86 (C.A.A.F. 1996).

Harassment of the witness

       The military judge’s ruling reiterated the Government’s

request that he use his authority under M.R.E. 611(a)(3) “to

control the scope and mode of witness interrogation, [and] to

prevent the harassment of witnesses.”   Like the identical

federal rule, M.R.E. 611 “calls for a judgment under the

particular circumstance whether interrogation tactics entail

harassment or undue embarrassment.”   Fed. R. Evid. 611 advisory

committee’s note, reprinted in 28 Charles Alan Wright & Victor

James Gold, Federal Practice and Procedure 320 (1993).     In this

case, the military judge made no findings about the likelihood

that HM2 C would suffer from undue embarrassment or harassment

as a result of cross-examination or the presentation of bias

evidence.    Nor do we see any evidence in the record that defense


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United States v. Collier, No. 08-0495/NA

counsel planned to conduct cross-examination in a threatening or

embarrassing manner.   From a practical standpoint, all bias

evidence has some potential to embarrass the witness; after all,

counsel is attempting to show that the witness has reason to lie

and is promoting the inference that the witness is in fact

lying.   See United States v. Williams, 40 M.J. 216, 218 (C.M.A.

1994) (“By definition, effective impeachment evidence should be

prejudicial to a witness” being cross-examined.) (emphasis in

original).   Moreover, while M.R.E. 611 permits a military judge

to impose limitations on the length and details of cross-

examination, it does not purport to authorize preemptively

shutting the door completely on otherwise relevant cross-

examination.    See United States v. Jones, 49 M.J. 85, 88

(C.A.A.F. 1998) (noting that a military judge has wide latitude

to restrict cross-examination “‘only after there has been

permitted as a matter of right sufficient cross-examination’”

(quoting United States v. Lindstrom, 698 F.2d 1154, 1160 (11th

Cir. 1983))).   The military judge’s use of M.R.E. 611 to

foreclose any cross-examination into a romantic or sexual

relationship without evidence of potential harm was an abuse of

discretion under these circumstances.

Waste of time or confusion of issues

     The Government also asserted that the uncertainty over

whether there was a homosexual relationship between Appellant


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United States v. Collier, No. 08-0495/NA

and HM2 C was a “disputed collateral matter, which may involve

the conflicting testimony of several witnesses, leading to a

waste of time and a confusion of the issues for the jury.”

Although the military judge found that there was conflicting

evidence on the existence of a homosexual romantic relationship

between Appellant and HM2 C, he made no factual findings about

any delay or confusion that could result from the cross-

examination of HM2 C or the presentation of extrinsic evidence

under M.R.E. 608(c) on the question.   From a review of the

record, we note that defense counsel planned to ask HM2 C about

the relationship and, if she denied it existed, to ask two

additional witnesses, one of whom ultimately testified at the

court-martial.   The record does not support the military judge’s

decision to take the ultimate questions -- whether that

relationship existed and whether it led HM2 C to lie -- away

from the members.   Having found that Appellant made a threshold

showing there was “some evidence” of such a relationship, it was

for the members, as the triers of fact, to decide if a

relationship existed and if its end caused HM2 C to be biased or

to misrepresent.    See Bins, 43 M.J. at 85 (noting that it is the

military judge’s duty to determine only whether there is “some

evidence that tend[s] to establish” a fact and finding that the

military judge “exceeded his authority and usurped the members’




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United States v. Collier, No. 08-0495/NA

role” when he decided for himself whether the witness was biased

for the reason proffered by the appellant).

Danger of unfair prejudice

     The third main argument offered by the Government, but not

recited in the military judge’s ruling, was that evidence of a

homosexual relationship was too prejudicial to be admitted.   It

was this argument that the CCA credited in its decision

upholding the ruling of the military judge, concluding that the

military judge did not err in excluding the evidence due to “the

prejudicial impact of evidence that would have been of a

particularly inflammatory nature in a trial by court-martial.”

Collier, 2008 CCA LEXIS 53, at *10, 2008 WL 495700, at *4.    This

conclusion supplied a rationale for the military judge’s ruling

that the military judge himself did not articulate and, further,

it inappropriately focused on a generalized and amorphous

“prejudicial impact” without identifying who or what would be

prejudiced.   Id. (citing as evidence of prejudicial impact the

“‘high degree of antipathy to homosexuality in the armed

forces’” as reflected in congressional findings supporting the

mandatory discharge of most servicemembers who engage in

homosexual conduct (quoting Phillips, 52 M.J. at 273 (Effron,

J., dissenting)).

     First, the term “unfair prejudice” in the context of M.R.E.

403 “speaks to the capacity of some concededly relevant evidence


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United States v. Collier, No. 08-0495/NA

to lure the factfinder into declaring guilt on a ground

different from proof specific to the offense charged.”    Old

Chief v. United States, 519 U.S. 172, 180 (1997) (analyzing the

purpose behind Fed. R. Evid. 403, which is identical to M.R.E.

403) (emphasis added); see also Fed. R. Evid. 403 advisory

committee’s note (“‘Unfair prejudice’ within [Fed. R. Evid. 403]

means an undue tendency to suggest decision on an improper

basis, commonly, though not necessarily, an emotional one.”).

M.R.E. 403 addresses prejudice to the integrity of the trial

process, not prejudice to a particular party or witness.     In

this case, the military judge made no findings related to

potential prejudice to the trial process that could be created

by evidence of homosexuality, such as a tendency for members

either to disbelieve the witness or to find Appellant guilty

without a proper basis.   In the context of an interracial

relationship, the Supreme Court recognized that “[s]peculation

as to the effect of jurors’ racial biases cannot justify

exclusion of cross-examination with such strong potential to

demonstrate the falsity of [the witness’s] testimony.”    Olden v.

Kentucky, 488 U.S. 227, 232 (1988).   Any conclusion that the

factfinders would be predisposed against either HM2 C or

Appellant in this case would have been similarly speculative.

Members are presumed to follow a military judge’s instructions

to consider evidence for a proper purpose, such as bias or


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United States v. Collier, No. 08-0495/NA

motive to misrepresent, and not let personal beliefs or feelings

affect their determinations about witness credibility.    United

States v. Taylor, 53 M.J. 195, 198 (C.A.A.F. 2000).

     Second, the CCA’s decision placed unwarranted emphasis on

the military context when it based its conclusion on the

potential for unfair prejudice.    We recognize the policy

subjecting homosexuals to mandatory separation if they have

engaged in, or solicited another to engage in, homosexual acts.

10 U.S.C. § 654(b) (2000).    However, that policy is not a per se

indication of unfair prejudice within the military justice

system.   This Court has not allowed the military’s policy on

homosexuality to prevent evidence of homosexuality from being

used against an accused.     See Phillips 52 M.J. at 272-73

(permitting trial counsel to offer evidence that the accused was

engaged in a homosexual relationship).    And we see no principled

reason to prevent an accused from using this same type of

evidence to potential advantage, particularly where, as here,

Appellant was the proponent of the evidence of a homosexual

relationship with the Government’s primary witness.    See

Williams, 40 M.J. at 218 (stating the military judge erred if he

excluded evidence based on the potential for prejudice to the

accused because the accused “was the proponent of the evidence

and waived objection to any adverse inferences from such

evidence”).   Finally, we note that the CCA decision relied upon


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United States v. Collier, No. 08-0495/NA

language from the dissenting opinion in Phillips to conclude

that the evidence was too prejudicial.   Collier, 2008 CCA LEXIS

53, at *10-*11, 2008 WL 495700, at *4.   The dissent in Phillips,

however, did not foreclose the possibility that evidence of a

homosexual relationship could be admissible.    See Phillips, 52

M.J. at 273 (Effron, J., dissenting) (recognizing that “a sexual

relationship that both pre-dates and post-dates a marriage,

regardless of sexual orientation, is potentially relevant on the

question of whether the marriage is a sham”).

     Because the military judge’s ruling lacked an articulated

or supportable legal basis, and was thus an abuse of discretion,

and the decision of the CCA was based on speculation about

prejudicial impact unrelated to any specific findings of the

military judge,2 we find that the limitation on cross-examination

and related bias evidence was a violation of Appellant’s Sixth

Amendment confrontation rights.

            B.   Harmlessness beyond a reasonable doubt

     Having found constitutional error, the question

remains whether that error was harmless beyond a reasonable

doubt.   Chapman v. California, 386 U.S. 18, 24 (1967).   In

the case of limitation of cross-examination, “the correct

2
  For example, the military judge made no comments or assessment
on the record of prejudice related to the risks of investigation
and separation associated with the military’s “Don’t Ask, Don’t
Tell” policy, which was the prejudice referenced by the CCA.
Collier, 2008 CCA LEXIS 53, at *10, 2008 WL 495700, at *4.

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United States v. Collier, No. 08-0495/NA

inquiry is whether, assuming that the damaging potential of

the cross-examination were fully realized, a reviewing

court might nonetheless say that the error was harmless

beyond a reasonable doubt.”   Van Arsdall, 475 U.S. at 684.

The burden is on the Government to show that “there is no

reasonable possibility” that the error “contributed to the

contested findings of guilty.”   United States v. Othuru, 65

M.J. 375, 377 (C.A.A.F. 2007).   An error has not

contributed to the verdict when it was “‘unimportant in

relation to everything else the jury considered on the

issue in question, as revealed in the record.’”     Id.

(quoting Yates v. Evatt, 500 U.S. 391, 403 (1991),

overruled on other grounds by Estelle v. McGuire, 502 U.S.

62, 72 n.4 (1991)).

     To find that the error here warrants relief, we need

not conclude that Appellant’s defense would have succeeded.

Instead the inquiry should focus on whether the military

judge’s ruling “essentially deprived Appellant of [her]

best defense” that “may have tipped the credibility balance

in Appellant’s favor.”   Moss, 63 M.J. at 239.    Because this

error was a violation of Appellant’s right to confront

witnesses, we apply the balancing test articulated by the

Supreme Court in Van Arsdall:




                                 21
United States v. Collier, No. 08-0495/NA

     the importance of the witness’ testimony in the
     prosecution’s case, whether the testimony was
     cumulative, the presence or absence of evidence
     corroborating or contradicting the testimony of the
     witness on material points, the extent of cross-
     examination otherwise permitted, and, of course, the
     overall strength of the prosecution’s case.

475 U.S. at 684.

     At trial, Appellant’s strategy was to discredit HM2 C’s

testimony through the use of bias evidence.   The main theory

offered to defend against the larceny charges was that HM2 C

framed Appellant for the theft of the tools by buying and

etching tools to look like they came from the squadron.   Due to

the military judge’s limitation on cross-examination of HM2 C,

defense counsel was able to offer only the end of a friendship

as motivation for the framing.   If there had been no such

limitation, and depending on the evidence introduced at trial,

defense counsel could have argued that HM2 C’s distress over the

breakup of her romantic relationship with Appellant inspired her

to frame Appellant.   In addition, defense counsel wanted to show

that Appellant slashed HM2 C’s tire out of anger over the

breakup, rather than with the intent to influence testimony.

After considering the Van Arsdall factors in relation to these

defense strategies, we find that on balance they compel the

conclusion that the limitation on cross-examination and related

evidence was not harmless beyond a reasonable doubt.




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United States v. Collier, No. 08-0495/NA

Obstruction charge

     On the obstruction charge, the Government had

circumstantial evidence of motive that included the following

facts:   (1) Appellant had been informed about the pending

larceny charges; (2) Appellant knew HM2 C had turned her in; and

(3) the offense occurred about one month after Appellant had

been informed the larceny charges.   A civilian testified that

Appellant admitted to her that she was the one who slashed HM2

C’s tire.   Because HM2 C was one of only two witnesses on the

influencing testimony charge, any additional damage to HM2 C’s

credibility could have been very significant to the outcome of

the case.   The other witness was the civilian police officer in

charge of the investigation, but her testimony only established

the fact that Appellant admitted slashing the tire.   The

detective testified that she did not discuss the impending

court-martial with HM2 C and therefore did not establish the

motive necessary to prove obstruction of justice.    When defense

counsel was prevented from trying to elicit evidence of a

romantic or sexual relationship between Appellant and HM2 C,

Appellant lost her best chance at showing the tire slashing was

motivated by anger over the end of that relationship, rather

than an attempt to influence testimony.




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United States v. Collier, No. 08-0495/NA

Larceny Charge

     To assess the strength of the Government’s case on the

larceny charge, we must take into account the presence of the

following corroborating evidence.    Many, although by no means

all, of the tools HM2 C returned to Appellant’s command had the

helicopter squadron’s markings etched on them.   There was

testimony that all of the recovered tools were ones that the

squadron typically kept in stock, and that some of them were

specialized to aircraft.   One of the bags of tools returned to

the squadron also contained personal papers belonging to

Appellant.   In addition, one of Appellant’s coworkers testified

that he once saw her struggling to remove a heavy bag of unknown

contents from the squadron.

     On the other hand, the larceny case was based on

circumstantial evidence:   Appellant did not confess; no one saw

or claimed to see her actually take the tools; and no

fingerprint evidence was presented.   Although a Government

witness testified he saw Appellant removing a heavy bag from the

squadron, there was also testimony from a defense witness that

Appellant stored heavy ratings manuals in a duffel bag in their

shared locker.   Some of the physical evidence presented

supported Appellant’s theory of the case:   all of the tools

appeared to be new, and some were still in their original

packaging.   Although some tools were etched, an etcher was found


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United States v. Collier, No. 08-0495/NA

with the tools, which supports Appellant’s theory that HM2 C

bought the tools herself and etched them.    Testimony at trial

established that the command code, either “B10” or “B1,” was

marked by hand on the tool itself.     Because this code was a

simple marking, anyone who knew it could have etched it into the

tools.    Testimony also established that many, if not all, of the

tools could have been purchased at a retail store such as Sears.

Finally, HM2 C was a principal prosecution witness and, as the

person who found the tools, her testimony was crucial to the

case.    The case was initiated solely by HM2 C’s report;

otherwise, no one at HC-8 had noticed that any tools were

missing, and no inventory list showed any missing tools.

        Looking at the extent of cross-examination otherwise

permitted, none was specifically allowed on the romantic or

sexual nature of the relationship.     This favors Appellant,

unless there was “effective cross-examination without the use of

the excluded evidence.”    Williams, 40 M.J. at 219.   Defense

counsel was permitted to ask HM2 C about several things that

could have indicated she had a motive to lie about the tools,

including:    HM2 C’s concern that Appellant had a crush on her;

situations in which Appellant contributed to tensions between

HM2 C and her boyfriend or between HM2 C and her daughter; and

HM2 C’s unsuccessful attempt to take out a restraining order on

Appellant.    As we have previously emphasized, however, there is


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United States v. Collier, No. 08-0495/NA

a qualitative difference between the cross-examination permitted

by the military judge and the prohibited inquiry into a failed

romantic, sexual relationship.    When Appellant was refused

permission to delve into the motive to lie that would arise from

that kind of experience, she was deprived of her best chance to

show the members that HM2 C was biased to the extent that she

would fabricate the story about the tools or frame Appellant.

     Adding insult to injury, the Government exploited the very

evidentiary limitation it requested in closing argument.    “Are

we supposed to believe that [HM2 C] or somebody else went out

and spent $2,700.00 on tools to set this up because she’s mad at

somebody?    That strains all logic; it’s just not credible.”

Transcript of Record at 620, Collier, No. 08-0495.    Even if it

would seem incredible for an ex-friend to concoct this type of

revenge, it would not strain all logic to imagine that an ex-

lover would do so.   The cross-examination that was prohibited

“may have tipped the credibility balance in Appellant’s favor.”

Moss, 63 M.J. at 239.    That we find this could have tipped the

balance does not mean it will, or even should, do so at a

rehearing.   But ultimately, that is for the finders of fact to

determine, not this Court.

                           III.   Decision

     Under all the circumstances, and particularly in light of

the Government’s closing argument, we cannot say that the error


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United States v. Collier, No. 08-0495/NA

was “unimportant in relation to everything else the jury

considered,” and therefore, there is a reasonable possibility it

contributed to the verdict and it was not harmless beyond a

reasonable doubt.   Othuru, 65 M.J. at 377 (citation and

quotation marks omitted).   The decision of the United States

Navy-Marine Corps Court of Criminal Appeals is reversed.    The

findings of guilty to both the charges and specifications and

the sentence are set aside and a rehearing is authorized.




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United States v. Collier, No. 08-0495/NA


     BAKER, Judge (dissenting):

     This Court reviews a military judge’s decision on the

admissibility of evidence under an abuse of discretion standard.

United States v. Collier, __ M.J. __ (13) (C.A.A.F. 2009).     In

this case, the military judge made a reasonable decision to

exclude the evidence of Appellant’s alleged sexual relationship

with HM2 C, certainly a decision that was within his discretion.

This Court should not reverse that decision because it would

have reached a different result.

                           DISCUSSION

     “To reverse for an abuse of discretion involves far more

than a difference . . . in opinion. . . .   The challenged action

must [be] . . . clearly unreasonable, or clearly erroneous in

order to be invalidated on appeal.”   United States v. Travers,

25 M.J. 61, 62 (C.M.A. 1987) (citations and quotation marks

omitted) (brackets added; ellipses in original).   The military

judge conducted a Military Rule of Evidence (M.R.E.) 403

balancing test, which he articulated on the record, and placed

reasonable limits on the manner in which Appellant could seek to

impeach HM2 C’s testimony based on their alleged sexual

relationship.

     A.   Deference

     The majority concludes that we should “accord the military

judge’s ruling less deference” because he failed to articulate
United States v. Collier, No. 08-0495/NA


his analysis on the record.   Collier, __ M.J. at __ (14).     A

military judge is only required to “record his balancing

analysis to the extent that his exercise of discretion may be

fairly reviewed on appeal.”   Government of the Virgin Islands v.

Archibald, 987 F.2d 180, 186 (3d Cir. 1993) (citation and

quotation marks omitted).   In my view, the military judge’s

articulation makes it clear how and why he determined that

evidence of an alleged sexual relationship was not legally

relevant to bias and why the M.R.E. 403 and M.R.E. 611

considerations outweighed any potential factual relevance.     The

military judge cited the parties’ arguments to explore, on the

one hand, the probative value of the evidence, and, on the other

hand, the risk of prejudice, confusion, and waste of time.     The

record reflects that the military judge conducted a “proper

balancing test” under M.R.E. 403, and this Court should give the

appropriate deference to his ruling.   United States v. Manns, 54

M.J. 164, 166 (C.A.A.F. 2000).

     B.   M.R.E. 403

     Based on his analysis, the military judge found that the

probative value of an alleged homosexual relationship to show

HM2 C’s bias was “substantially outweighed by the danger of

unfair prejudice, confusion of the issues” and “waste of time.”

M.R.E. 403.   This conclusion was based, inter alia, on the

disputed nature of Appellant and HM2 C’s relationship.


                                 2
United States v. Collier, No. 08-0495/NA


Appellant’s proffer consisted of her statement to the military

judge that the relationship was sexual.    Although defense

counsel offered no further detail or tangible evidence of a

sexual relationship, defense counsel stated that, “there are two

other witnesses that we could call that would provide extrinsic

evidence that would go to her bias.”1    However, as defense

counsel acknowledged, HM2 C denied that the relationship was

sexual.    So did HM2 C’s daughter, who filed an affidavit stating

that the relationship was based on friendship and “nothing

more.”

     Based on the information presented during the Article

39(a), Uniform Code of Military Justice (UCMJ), 10 U.S.C. §

839(a) (2000), session and in the parties’ briefs on the Motion

for Appropriate Relief, the military judge reached the following

findings and conclusions:

     •    “The defense has met their preliminary burden that the

          break-up of the relationship between this key witness and

          the accused may relate to motive by the witness to make

          the false allegation of larceny of military property.”2




1
  One of these witnesses was the detective who investigated the
case.
2
  Findings and Ruling on Government Motion In Limine at 2, United
States v. Collier, Special Court-Martial, Tidewater Judicial
Circuit (Nov. 24, 2004).

                                  3
United States v. Collier, No. 08-0495/NA


       •   “The government presented evidence by cross-examination

           of the accused and by affidavit that tends to refute any

           sexual aspect to the relationship.”3

       •   “[T]he sexual nature of this relationship is not

           sufficiently relevant.”4

The military judge noted, “under [M.R.E] 403, . . . there’s a

danger that there’s going to be a confusion of the issues

because what the trial may deteriorate into is a trial within a

trial as to whether or not there was a sexual relationship.”       In

this case, the risk was well-founded, as would be the case

regardless of the nature of the evidence offered, not less so

because of the sensitive nature of this information.     Indeed,

this raised the specter that HM2 C would be put “on trial” in

addition to the accused.

       Further, the military judge looked to M.R.E. 611 “to

control the scope and mode of witness interrogation, to prevent

the harassment of witnesses.”     Questions regarding a homosexual

relationship not only had the risk of embarrassing HM2 C, they

carried the potential risk of investigation and separation under

the military’s “Don’t Ask, Don’t Tell” policy.     10 U.S.C. §

654(b)(1) (2000).




3
    Id. at 1.
4
    Id. at 2.

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United States v. Collier, No. 08-0495/NA


     Thus, the military judge properly identified the risks

associated with permitting testimony regarding a sexual

relationship, most of which would exist whether the information

pertained to a heterosexual or homosexual relationship.    The

military judge reasonably concluded that those risks

substantially outweighed the probative value of the information.

     C.   Reasonable Restriction

     A witness’s bias “is subject to exploration at trial, and

is ‘always relevant as discrediting the witness and affecting

the weight of his testimony.’”     Davis v. Alaska, 415 U.S. 308,

316 (1974) (citation omitted).     However, bias evidence, like any

evidence, is subject to reasonable restrictions “to take account

of such factors as ‘harassment, prejudice, confusion of the

issues, the witness’ safety, or interrogation that [would be]

repetitive or only marginally relevant.’”    Olden v. Kentucky,

488 U.S. 227, 232 (1988) (quoting Delaware v. Van Arsdall, 475

U.S. 673, 679 (1986)); see also Davis, 415 U.S. at 316 (“Subject

always to the broad discretion of a trial judge to preclude

repetitive and unduly harassing interrogation, . . . the cross-

examiner has traditionally been allowed to impeach, i.e.,

discredit, the witness.”).   “Generally speaking, the

Confrontation Clause guarantees an opportunity for effective

cross-examination, not cross-examination that is effective in




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United States v. Collier, No. 08-0495/NA


whatever way, and to whatever extent, the defense might wish.”

Delaware v. Fensterer, 474 U.S. 15, 20 (1985).

     Consistent with these constitutional dictates, the military

judge did not adopt an all or nothing approach, as the majority

suggests.    Rather, exercising his discretion, the military judge

balanced the factors at hand in light of the law permitting the

defense “to explore the issue of bias and motive to

misrepresent, under M.R.E. 608(c),” and ultimately limited the

evidence to uncontested evidence that had less risk of prejudice

or harassment.    Specifically, the military judge allowed the

defense to “characterize the relationship as close, personal

and/or emotionally close,” but restricted the defense from

“open[ing] the issue of any alleged sexual acts between the

witness and the accused.”    The military judge also permitted

defense counsel to ask HM2 C whether she “believed [Appellant]

had a crush on [HM2 C].”    As this Court has said, “once the

defendant has been allowed to expose a witness’s motivation in

testifying, ‘it is of peripheral concern to the Sixth Amendment

how much opportunity defense counsel gets to hammer that point

home to the jury.’”    United States v. Carruthers, 64 M.J. 340,

344 (C.A.A.F. 2007) (citation omitted).

     D.     Speculation About Unfair Prejudice

     Even if the military judge had meticulously articulated

every detail of his analysis (and he came close), the majority


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United States v. Collier, No. 08-0495/NA


implies that the military judge could not have reached a

reasonable decision to exclude the evidence because any such

decision would require speculation.     See Collier, __ M.J. at __

(18).    Presented with these facts, if the military judge could

not reasonably speculate about “the danger of unfair prejudice,

confusion of the issues, or misleading the members” and whether

those considerations outweigh the probative value of evidence,

it seems that the military judge had no discretion whatsoever.

M.R.E. 403.

        The majority compares this case to Olden v. Kentucky, in

which the Supreme Court held that the judge abused his

discretion by excluding evidence of an interracial sexual

relationship based on “[s]peculation as to the effect of jurors’

racial biases.”    488 U.S. at 232.    However, in contrast to this

case, the relationship at issue in Olden was uncontested.      Id.

at 230.    Further, while the relationship in Olden showed the

victim’s potential motive to lie about the crime, as in this

case, Appellant’s theory is much less plausible than that

presented in Olden.    Id.   In addition to lying about the crime,

Appellant and the majority posit that HM2 C purchased 215 tools

(even though it is questionable whether all were publicly

available for purchase), etched Appellant’s command code on 65

of them, and otherwise fabricated the entire crime.     Collier, __

M.J. at __ (24-25).    Thus, under this theory, after exposing


                                   7
United States v. Collier, No. 08-0495/NA


herself to perjury charges, revealing an illicit sexual

relationship, and risking separation from the service, HM2 C

would have her revenge.   This theory, of course, also

presupposes that the Navy, having received the store-bought

tools, negligently concluded that the tools were government

property or wittingly joined in HM2 C’s conspiracy.

     Additionally, the majority argues that the suggestion of a

sexual relationship would have made it more likely that

Appellant slashed HM2 C’s tires out of anger, rather than to

interfere with the key witness against her.    Id. at __ (23).

Here too, rather than speculating about how the members might

apply this information, the military judge’s well-balanced

decision permitted the members to draw their own reasonable

conclusions regarding the animosity between Appellant and HM2 C.

The members heard that HM2 C and Appellant had a falling out,

HM2 C attempted to obtain a restraining order against Appellant,

and that, just prior to the tire slashing incident, they had

argued about HM2 C returning Appellant’s property to her.    It is

doubtful that an additional suggestion, disputed and refuted, of

a sexual relationship between Appellant and HM2 C would have

caused the members to reach a different verdict.

     It equally “strains all logic” to suggest that an angry,

vengeful lover would go to such extremes, but that an “angry,

vengeful friend” would not.   Id. at __ (2).   To be sure, it is a


                                 8
United States v. Collier, No. 08-0495/NA


leap in logic to conclude that a sexual relationship would drive

someone to do all this in a way that the disintegration of a

relationship that was “emotionally close” and “closer than

ordinary friends” would not.   It also thoroughly discounts the

sophistication of military members to identify and assess the

myriad ways in which relationships are formed and broken and the

hurt that results.   Therefore, the military judge reasonably

concluded that information about the alleged sexual nature of

Appellant’s and HM2 C’s relationship, above and beyond what the

military judge actually admitted, was “not sufficiently

relevant.”

                            CONCLUSION

     Limiting defense questioning about a witness’s sexual life

absent a valid showing of proof and legal relevance is a

reasonable limitation on an accused’s right to present a defense

and confront a witness.   The military judge properly used his

discretion to allow Appellant to identify HM2 C’s potential bias

while limiting it to avoid prejudice, confusion, waste of time,

and harassment of the witness.

     As a result, like the United States Navy-Marine Corps Court

of Criminal Appeals, I would conclude that the military judge

did not abuse his discretion by excluding evidence of an alleged

sexual relationship between HM2 C and Appellant.   United States

v. Collier, No. NMCCA 200601218, 2008 CCA LEXIS 53, at *11, 2008


                                 9
United States v. Collier, No. 08-0495/NA

WL 495700, at *4 (N-M. Ct. Crim. App. Feb. 21, 2008)

(unpublished).   I respectfully dissent.




                                10
