

   
   
   
   U.S. v. Barron



IN THE CASE OF
UNITED STATES, Appellee
v.
Thomas G. BARRON, Sergeant
U.S. Army, Appellant
 
No. 98-0210
Crim. App. No. 9501189
 
United States Court of Appeals for the Armed
Forces
Argued January 12, 1999
Decided September 27, 1999
SULLIVAN, J., delivered the opinion of
the Court, in which COX, C.J., and CRAWFORD, GIERKE, and EFFRON, JJ., joined.

Counsel
For Appellant: Captain
Donald P. Chisholm (argued); Colonel John T. Phelps II, Lieutenant
Colonel Adele H. Odegard and Major Holly S.G. Coffey (on brief);
Lieutenant Colonel Michael L. Walters and Captain T. Michael
Guiffre.
For Appellee: Captain Marcella
Edwards-Burden (argued); Colonel Russell S. Estey and Major
Lyle D. Jentzer (on brief); Lieutenant Colonel Eugene R. Milhizer
and Captain Steven H. Levin.
Military Judge: Gary J. Holland

 

THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.


Judge SULLIVAN delivered the opinion of the
Court.
Appellant was tried by a general court-martial
composed of officer members at Fort Stewart, Georgia, on various dates
in 1995. Contrary to his pleas, he was found guilty of committing indecent
acts with a minor female (2 specifications) and indecent assault on that
same child (2 specifications), in violation of Article 134, Uniform Code
of Military Justice, 10 USC § 934. On June 29, 1995, he was sentenced
to a bad-conduct discharge, 4 years confinement, forfeiture of $854.00
pay per month for 6 months, and reduction to the lowest enlisted pay grade.
On March 25, 1996, the convening authority approved the adjudged sentence.
The Court of Criminal Appeals affirmed the findings and sentence on November
19, 1997.
This Court, on July 17, 1998, granted two issues
for review:




I.
WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL
PREJUDICE OF APPELLANT WHEN HE FAILED TO DECLARE A MISTRIAL ON THE BASIS
OF DOCTOR COOPERS ACTIONS AT TRIAL.

II.
WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL
PREJUDICE OF APPELLANT WHEN HE FAILED TO GRANT THE DEFENSE MOTION TO COMPEL
DISCOVERY OF DOCTOR COOPERS NOTES AND BASIS FOR HER OPINION PRIOR TO DIRECT
AND CROSS-EXAMINATION.



We also specified a third issue for consideration:




III.
WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL
PREJUDICE OF APPELLANT WHEN, AFTER FINDING AS A MATTER OF FACT THAT DOCTOR
COOPER HAD ABANDONED HER ROLE AS AN EXPERT WITNESS AND HAD BECOME A PARTISAN
ADVOCATE FOR THE GOVERNMENT, HE: (1) FAILED TO DISQUALIFY HER AS AN EXPERT
WITNESS; (2) GAVE THE EXPERT WITNESS INSTRUCTION; (3) ALLOWED HER TO TESTIFY
AS A REBUTTAL WITNESS AND AS A WITNESS IN AGGRAVATION; AND (4) FAILED TO
INSTRUCT THE PANEL TO DISREGARD HER TESTIMONY IN TOTO.



We decide these questions in the Governments
favor.
The record before us shows that appellant was
charged with a series of sexual acts with J.D., an 8-year-old girl. J.D.
was the daughter of appellants off-base friend and a close companion of
his family. She testified that appellant committed various indecent sexual
acts and assaults upon her.
As part of the prosecutions case-in-chief,
Dr. Sharon Cooper was called and qualified as an expert witness in pediatric
medicine, developmental behavioral pediatrics, and the identification and
treatment of sexually and physically abused children. During Dr. Coopers
testimony, she referred to therapy reports on the alleged victim prepared
by Linda Barnes of the Savannah Psychotherapy Center, which she reviewed
in preparation for her testimony. The defense objected and claimed it had
not received a copy of these reports. The military judge agreed that these
reports should be made available to the defense and ordered their production.
The record reflects that the judge allowed the Government to complete its
direct examination of Dr. Cooper but also granted a continuance to the
defense in order to allow them additional time to review the newly disclosed
evidence and consult with their expert. The judge also allowed defense
counsel to conduct its cross-examination of Dr. Cooper at a later date.
The defense subsequently requested all the
materials that Dr. Cooper actually used to prepare for her testimony. Dr.
Cooper testified that she did not want to disclose these materials because
she made personal notes and impressions on these documents. The military
judge ordered the documents to be produced without her notes.
Later, during the Governments cross-examination
of the defense expert, Mrs. Paula Waxman, Dr. Cooper passed four notes
to government counsel. The judge stated that the notes contained suggested
questions for trial counsel to ask Mrs. Waxman. Defense counsel moved to
disqualify Dr. Cooper from further participation in the case and to prohibit
note-passing.
The trial record reflects that the defense
characterized the note-passing as evidence that Dr. Cooper crossed the
line to become, in effect, a de facto prosecutor. In his
brief, appellant asserts without contradiction by the Government that Dr.
Coopers actions "were not surreptitious, secret dealings. She huffed and
puffed in the back of the courtroom, bellowing loudly then scribbled furiously.
When finished with each of the four memos she then stormed to the bailiff,
in full view of all, including the court members,
gave the notes to him, and ordered him to deliver them forward." Final
Brief at 5.
The judge ordered government counsel to end
the note-passing, but denied the motion to disqualify Dr. Cooper and marked
the four notes as Appellate Exhibit XV. Although he denied the defense-initiated
motion for mistrial, the record reflects that he took specific action to
remedy potential prejudice. First, he allowed the defense to ask specific
questions pertaining to Appellate Exhibit XV when cross-examining Dr. Cooper.
Second, he issued the members the following curative instruction, which
indicated that Dr. Coopers conduct reflected on her credibility as a witness:



MJ: Members of the court, I appreciate your
patience. In this case Colonel Cooper has been sitting in the courtroom
during the testimony of Ms. Waxman. I allowed her to sit in the courtroom
to hopefully permit the expert testimony to be developed more quickly and
efficiently, as I would have expected Colonel Cooper and other potential
witnesses to be recalled as witnesses in this case. If you noticed during
the examination of Ms. Waxman, notes were being passed to the trial counsel.
These notes originated from Colonel Cooper and provided questions to the
prosecution to ask Ms. Waxman. Many of the questions asked by Captain Powell
[the prosecutor] apparently were taken directly from those notes. The
actions of Colonel Cooper and the trial counsel involving these notes were
totally improper. Colonel Coopers behavior was entirely inappropriate
in taking such an active participation in the case, as it was ongoing.
Expert witnesses are supposed to provide unbiased opinions based upon their
expertise, not to actively attempt to become involved in the prosecution
of the case.
Even if she is not recalled as a witness to
testify in this case, in determining the credibility of Colonel Coopers
testimony you should consider the fact that she departed from her role
as an expert witness and became, in effect, a de facto member of the prosecution.
You should, therefore, in effect, consider that Colonel Cooper has shown
herself to be a biased witness in favor of the alleged child victim in
this case. I have also precluded Colonel Cooper from further sitting
in the courtroom during the testimony of any further witnesses.
Is that instruction understood?

[Affirmative responses from members]
MJ: In effect, Colonel Cooper has a mark
against her, at least one, based upon what she did here and then anything
else that you may have decided based upon the testimony you may consider
as marks against her. But that was totally inappropriate and hopefully
I have taken the appropriate remedy.



(Emphasis added.)
Defense counsel also made an objection regarding
the failure of the Government to provide full discovery. The Government
had recently acquired still another medical report from Linda Barnes. The
judge granted the defense request to preclude Dr. Cooper from discussing
this additional record if she were called to testify again.
After the defense rested, trial counsel asked
for reconsideration of the above-noted instruction. The trial judge denied
this motion and stated that he still considered Dr. Cooper an expert witness.
Dr. Cooper then testified in rebuttal. The defense exercised its option
to cross-examine her, and asked if she passed notes and suggested questions.
Dr. Cooper admitted as much, and testified that she behaved as she routinely
did in every case. The military judge subsequently gave a standard expert-testimony
instruction for all experts at trial, including Dr. Cooper.
___ ___ ___
MISTRIAL
Appellant initially argues that his mistrial
request should have been granted because a prosecution expert witness engaged
in certain disqualifying actions which indicated her bias in favor of the
prosecution. Appellant notes that the military judge found that Dr. Cooper
was a "de facto member of the prosecution." He then argues,
citing certain military and civilian cases, that a mistrial should have
been declared because such witness misconduct created substantial doubt
about the fairness of the proceedings. See United States v. Rushatz,
31 MJ 450, 457-58 (CMA 1990) (claim of disruptive prosecutorial conduct).
A mistrial is a drastic remedy which a judge
should only grant in extraordinary cases. Judge Wiss, writing in United
States v. Dancy, 38 MJ 1, 6 (CMA 1993), succinctly described this remedy
as follows:



"Declaration of a mistrial is a drastic remedy,
and such relief will be granted only to prevent a manifest injustice against
the accused." United States v. Rushatz, 31 MJ 450, 456 (CMA 1990).
It is appropriate only "whenever circumstances arise that cast substantial
doubt upon the fairness or impartiality of the trial." United States
v. Waldron, 15 USCMA 628, 631, 36 CMR 126, 129 (1966). The military
judges decision regarding motions for a mistrial will be measured for
abuse of discretion. [United States v. Rosser, 6 MJ 267 (CMA 1979);
United States v. Jeanbaptiste, 5 MJ 374 (CMA 1978); United States
v. Patrick, 8 USCMA 212, 24 CMR 22 (1957); S. Childress & M. Davis,
1 Federal Standards of Review, Trial Judge: Supervision and Discretion
§ 4.08 at 4-54 (2d ed. 1992).]



Moreover, in Rushatz, 31 MJ at 456, this
Court stated that giving a curative instruction is the preferred remedy
in lieu of declaring a mistrial. It said:



Giving a curative instruction, rather than
declaring a mistrial, is the preferred remedy for curing error. . . as
long as the curative instruction avoids prejudice to the accused. United
States v. Evans, 27 MJ 34, 39 (CMA 1988), cert. denied, 488
U.S. 1011, 109 S.Ct. 797, 102 L.Ed.2d 788 (1989). Absent evidence to the
contrary, a jury is presumed to have complied with the judges instructions.
See Lakeside v. Oregon, 435 U.S. 333, 340, 98 S.Ct. 1091,
1095, 55 L.Ed.2d 319 (1978); United States v. Ricketts, 1 MJ 78,
82 (CMA 1975); Donaldson v. United States, 248 F.2d 364 (9th
Cir. 1957), cert. denied, 356 U.S. 922, 78 S.Ct. 706, 2 L.Ed.2d
717 (1958).



Finally, in United States v. Balagna, 33
MJ 54 (CMA 1991), this Court dealt with a situation where curative instructions,
rather than a mistrial, were adequate to neutralize certain inadmissible
evidence which might have prejudiced the accused. There, a prosecution
witness improperly revealed to members that the accused had submitted a
request in lieu of trial that he be discharged for the good of the service
pursuant to Chapter 10 of Army Regulation 635-200. We recognized that the
panel members probably knew that a Chapter 10 request required some admission
of guilt. Nevertheless, the military judge did not declare a mistrial,
but instead issued curative instructions to the members that this evidence
was inadmissible and that they should completely disregard this testimony.
Id. at 55. Then-Judge Cox, writing for a unanimous Court, found
no "extraordinary circumstances" that required a mistrial because "the
adverse impact" of this inculpatory evidence was neutralized by these curative
instructions. Id. at 57.
Turning to the present case, we note that the
legal authorities cited by appellant do not establish a per se
rule that a mistrial must be declared when a prosecutor testifies
in a case in which he is prosecuting. See generally Robinson
v. United States, 32 F.2d 505, 510 (8th Cir. 1929) (although
testimony by prosecutor does not require reversal, prosecutor should not
testify "except under most extraordinary circumstances"). Thus, we doubt
such a rule exists for a prosecution expert who somehow acts as a prosecutor
in front of the members. Moreover, the trial judge granted the defenses
alternative request to fully cross-examine this prosecution expert and
reveal her pro-prosecutorial conduct to the members. Any bias, beyond that
normally attributed to the party who called her, was therefore fully disclosed
to the members. Also, the military judge gave a particularly focused instruction
to the members on evaluating this witness credibility, which tended to
disparage Dr. Coopers testimony and was generally detrimental to the prosecutions
case. See United States v. Balagna, supra (curative
instructions even in extreme cases may suffice to avoid mistrial). Finally,
we are not convinced that Dr. Coopers conduct was so prejudicial to the
defense that curative instructions were unlikely to cure it. United
States v. Klein, 546 F.2d 1259, 1262-63 (5th Cir. 1977),
quoted in United States v. Escalante, 637 F.2d 1197, 1203 (9th
Cir. 1980). In sum, we find no abuse of discretion when the trial judge
refused to grant a mistrial.

INADEQUATE ALTERNATE REMEDY
The specified issue further questions the legal
adequacy of the remedial actions ordered by the trial judge in lieu of
declaring a mistrial. Appellant argues that his military judge had inherent
authority to disqualify an expert witness in certain circumstances, and
he should have done so as requested by the defense in this case. He further
asserts that this experts conduct and the judges acknowledgement of her
prosecutorial status "retroactively enhance[d] the validity of her testimony"
in a close case determined largely on the basis of expert testimony. Final
Brief at 12. He concludes that the trial judges actions compounded, not
cured, the prejudice created by Dr. Coopers misconduct.
As a starting point, we note that Mil. R. Evid.
702 and 706, Manual for Courts-Martial, United States (1995 ed.),1
permit the admission of expert opinion testimony at court-martial by a
government expert, a defense expert, and a court expert. See Art.
46, UCMJ, 10 USC § 846; RCM 703(d) Manual, supra. Our case
law recognizes that the trial judge decides whether a proffered witness
is an expert for purposes of these rules (qualified as an expert by knowledge,
skill, expertise, training, and education). See United States
v. Harris, 46 MJ 221, 224 (1997). We review his decision using an abuse
of discretion standard. Id.
Turning to the present case, we note that some
authority exists that a trial judge may, in an unusual case, disqualify
a previously qualified expert witness in the interest of promoting the
fairness of the proceedings. See Paul v. Rawlings Sporting Goods
Co., 123 F.R.D. 271, 278 (S.D. Ohio 1988), citing Williams v. TWA,
Inc., 588 F.Supp. 1037 (W.D. Mo. 1984). There is also authority that
a prosecuting attorney should not testify in cases which he or she prosecutes
because "[a] jury naturally gives to the evidence of the prosecuting attorney
far greater weight than to that of the ordinary witness." See Robinson,
32 F.2d at 510; see also United States v. Treadway,
445 F.Supp. 959, 962 (N.D. Tex. 1978). However, there is no direct authority
cited by the defense requiring a military judge to disqualify a prosecution
expert witness on the basis that he or she otherwise acted as a "de
facto prosecutor."
Assuming such authority exists, we are not
persuaded that appellants trial judge abused his discretion in refusing
to exercise such power in this case. See generally United
States v. Travers, 25 MJ 61, 62-63 (CMA 1987) (to find an abuse of
discretion, the challenged action must be arbitrary, fanciful, clearly
unreasonable, or clearly erroneous). The military judge was at the center
of the trial and clearly sensitive to the fact that this expert witness
extra-testimonial conduct might unduly prejudice appellant. See
S. Childress and M. Davis, 1 Federal Standards of Review §
4.02 (1992 2d ed.) (recognizing trial judges superior position in performing
Fed. R. Evid. 403 analysis). He immediately stopped the complained of note-passing
and formally rebuked trial counsel and the expert witness for engaging
in such disruptions.2
Finally, he called the members attention to the impropriety of this experts
conduct and instructed them to consider it against her in evaluating her
credibility. See also United States v. Garcia, 23
USCMA 403, 406-07, 50 CMR 285, 288-89 (1975).
Turning to appellants undue-prejudice argument,
we find it most unpersuasive for several reasons. First, we have reviewed
the trial judges instructions and conclude that they could not reasonably
be construed to favor this witness or the prosecution. ("totally improper";
"entirely inappropriate"; "consider that [she] has shown herself to be
biased"; "a mark against her"). Second, the defense requested instructions
of this type and made no objection to those given by the trial judge. Third,
the prosecution asked the judge to reconsider these instructions because
they unduly burdened the presentation of its case. In these circumstances,
we must reject, as unjustified, appellants argument on undue prejudice.
See United States v. Garces, 32 MJ 345, 349 (CMA 1991).

PREJUDICIAL ERROR
The third issue in this case is whether the
military judge erred in failing to grant the defense access to certain
materials necessary for the cross-examination of the prosecutions expert,
Dr. Cooper. In particular, appellant complains that he was not allowed
to see notes written by Dr. Cooper on medical reports she considered in
forming her opinions in this case. Also, he complains that he was not given
access to these same medical reports relied on by this expert until after
she testified in the prosecutions case-in-chief. Finally, he argues that
the failure of the trial judge to attach the above notes as an appellate
exhibit precludes meaningful appellate review of this issue. We disagree.
Our preliminary concern is whether the failure
of the military judge to attach the notes as an appellate exhibit precludes
meaningful appellate review. We addressed a similar claim in United
States v. Branoff, 38 MJ 98, 105 (CMA 1993), and rejected it. See
also United States v. Briggs, 48 MJ 143, 145 (1998). Likewise,
in this case, there was no request by the defense that these notes be attached
to the record as an appellate exhibit. Moreover, "appellant concedes that
the Governments failure to produce the discovery in question does not
implicate Brady v. Maryland, 373 U.S. 83 . . . (1963), because the
discovery involved inculpatory, rather than exculpatory, information. Final
Brief at 14 n.9. Finally, we conclude that appellants claim of error concerning
these notes can be resolved without specific knowledge of their content.
See United States v. Branoff, supra.
Turning to appellants first claim, he rests
his appellate argument for Dr. Coopers notes exclusively on Mil.R.Evid.
612, which states:



Rule 612. Writing used to refresh memory
If a witness uses a writing to refresh his
or her memory for the purpose of testifying, either
(1) while testifying, or
(2) before testifying, if the military judge
determines it is necessary in the interests of justice, an adverse party
is entitled to have the writing produced at the hearing, to inspect it,
to cross-examine the witness thereon, and to introduce in evidence those
portions which relate to the testimony of the witness. If it is claimed
that the writing contains privileged information or matters not related
to the subject matter of the testimony, the military judge shall examine
the writing in camera, excise any privileged information
or portions not so related, and order delivery of the remainder to the
party entitled thereto. Any portion withheld over objections shall be attached
to the record of trial as an appellate exhibit. If a writing is not produced
or delivered pursuant to order under this rule, the military judge shall
make any order justice requires, except that when the prosecution elects
not to comply, the order shall be one striking the testimony or, if in
discretion of the military judge it is determined that the interests of
justice so required, declaring a mistrial. This rule does not preclude
disclosure of information required to be disclosed under other provisions
of these rules or this Manual.



However, at trial, there was no mention of this
evidentiary rule as a legal basis for appellants request for discovery
of these notes. Moreover, the defense did not establish that these notes
were used by the prosecutions expert to refresh her memory for purposes
of testifying at trial. See United States v. Jimenez, 613
F.2d 1373, 1377-78 (5th Cir. 1980). Finally, at trial, appellant
based his requests for these notes on the witness status as an expert,
and he has not pursued that argument on appeal. See Mil.R.Evid.
703, 705; see also RCM 701(2)(B). No further consideration
of appellants Mil. R. Evid. 612 argument is warranted in these circumstances.
Turning to appellants second claim, he complains
about his belated access to private therapy reports concerning the alleged
victim, which were relied upon by the prosecutions expert in fashioning
her direct testimony. He contends that the Governments failure to disclose
this information prior to trial and the trial judges delayed discovery
order "effectively ambushed [the defense] at trial." Final Brief at 17.
He asserts that, "[h]ad the defense had the opportunity to interview the
therapist, it could have possibly challenged the admissibility of this
information prior to trial or alternately, it could have reshaped its theory
of the case." Id. We reject his prejudice argument.
We note that the defense was afforded a 30-day
continuance prior to its cross-examination of this expert because of the
prosecutions delayed discovery conduct. It elected not to call the prosecution
expert back to the stand for purposes of cross-examination, although it
did ultimately cross-examine her when she was recalled by the prosecution
as a rebuttal witness. The belatedly-disclosed therapy reports were not
mentioned during this cross-examination; nor was a defense motion made
to strike her testimony in its entirety because of these reports. Moreover,
other evidence was admitted showing the victims post-offense behavior,
which was similar to that described in the therapy reports relied upon
by Dr. Cooper. Finally, appellant, in his brief before this Court, has
not indicated how his defense would have been altered if he had received
these reports earlier. In these circumstances, we see no prejudice. Art.
59(a), UCMJ, 10 USC § 859(a).
The decision of the United States Army Court
of Criminal Appeals is affirmed.
FOOTNOTES:
1 All Manual provisions
are cited to the version applicable at the time of trial. The 1998 version
is unchanged, unless otherwise indicated.
2 As a
personal observation, I note that, in the future, there may not only be
a transcript of a trial, but also a video. With this tool, an appellate
court will be better able to judge the prejudice of incidents like the
interruption and note-passing in the instant case.

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