                       UNITED STATES, Appellee

                                    v.

           Richard C. FOSTER, Personnelman First Class
                       U.S. Navy, Appellant

                              No. 06-0238

                       Crim. App. No. 200301262

       United States Court of Appeals for the Armed Forces

                       Argued October 25, 2006

                       Decided January 30, 2007

ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, J., joined.

STUCKY and RYAN, JJ., did not participate.

                                 Counsel

For Appellant: William E. Cassara, Esq. (argued); Captain
Jeffrey S. Stephens, USMC, and Captain Peter Griesch, USMC (on
brief).

For Appellee: Major Kevin C. Harris, USMC (argued); Commander
Paul LeBlanc, JAGC, USN (on brief); Colonel Ralph F. Miller,
USMC.

Military Judge:   Nels H. Kelstrom


       This opinion is subject to revision before final publication.
United States v. Foster, No. 06-0238/NA

     Judge ERDMANN delivered the opinion of the court.

     Personnelman First Class Richard C. Foster entered a plea

of not guilty to two specifications of committing indecent acts

with a child on divers occasions and one specification of

communicating a threat, all in violation of Article 134, Uniform

Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2000).     At the

close of the Government’s case, the military judge dismissed one

of the indecent act specifications on the grounds that the

evidence was factually insufficient.   The panel convicted Foster

of the remaining two specifications and sentenced him to a

dishonorable discharge, forfeiture of all pay and allowances,

reduction to the lowest enlisted grade and confinement for five

years.   The convening authority approved the sentence and the

United States Navy-Marine Corps Court of Criminal Appeals

affirmed the findings and the sentence.   United States v.

Foster, No. NMCCA 200301262, 2005 CCA LEXIS 322, 2005 WL 2704961

(N-M. Ct. Crim. App. Oct. 18, 2005) (unpublished).

     A military judge’s impartiality is crucial to the conduct

of a legal and fair court-martial.   United States v.

Quintanilla, 56 M.J. 37, 43 (C.A.A.F. 2001).   The military judge

may participate actively in proceedings to assure that court-

martial members receive the information that they need to

determine whether the accused is proven guilty, however, the

military judge must take care not to become an advocate for



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United States v. Foster, No. 06-0238/NA

either party.    United States v. Ramos, 42 M.J. 392, 396

(C.A.A.F. 1995).    We granted review of this case to determine

whether the military judge remained impartial in his conduct of

this trial.1    While we do not condone some of the actions taken

by the military judge, in the context of the entire trial, the

legality, fairness, and impartiality of the court-martial were

not put in doubt.

                              Background

       The allegations leading to Foster’s charges involved

several instances of inappropriate sexual contact with his six-

year-old stepdaughter and his threats to her if she told her

mother about the incidents.    The Government’s case relied in

large part on the stepdaughter’s testimony and Foster’s defense

was that the child’s story was not true.    A key component of the

defense strategy was the testimony of Dr. Mary L. Huffman, a

developmental research psychologist with expertise in evaluating

children’s testimony.

       Foster’s claim that the military judge was not impartial

centers on the military judge’s treatment of Dr. Huffman.


1
    We granted review of the following issue:

       WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL
       APPEALS ERRED TO THE SUBSTANTIAL PREJUDICE OF
       APPELLANT WHEN IT RULED THAT THE MILITARY JUDGE DID
       NOT BECOME A PARTISAN ADVOCATE FOR THE GOVERNMENT, AND
       THAT THE MILITARY JUDGE’S TREATMENT OF THE DEFENSE
       EXPERT DID NOT DENY APPELLANT’S RIGHT TO PRESENT A
       DEFENSE.

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United States v. Foster, No. 06-0238/NA

Foster argues that the military judge harbored an inflexible and

biased attitude toward Dr. Huffman and displayed contempt for

her credentials and testimony and disdain for her area of

expertise.   He argues that the military judge improperly limited

Dr. Huffman’s testimony, engaged in hostile and combative

questioning, and discredited her testimony by inaccurately

summarizing it in a jury instruction that was not sufficiently

detailed or accurate.   Foster contends that the military judge,

through his treatment of this expert witness, became a partisan

advocate for the Government and denied him his right to present

a defense.   The Government responds that the military judge did

not depart from his neutral role but set appropriate parameters

on the testimony of the expert, asked questions to uncover

relevant facts, and tailored the expert witness instructions to

give accurate and impartial guidance to the members.

                            Discussion

     There is a strong presumption that a military judge is

impartial in the conduct of judicial proceedings.   Quintanilla,

56 M.J. at 44.   “When a military judge’s impartiality is

challenged on appeal, the test is whether, taken as a whole in

the context of [the] trial, [the] court-martial’s legality,

fairness, and impartiality were put into doubt by the military

judge’s actions.”   Id. at 78 (citation and quotation marks

omitted); see also United States v. Acosta, 49 M.J. 14, 18



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United States v. Foster, No. 06-0238/NA

(C.A.A.F. 1998).    We apply this test from the viewpoint of the

reasonable person observing the proceedings.    Ramos, 42 M.J. at

396.   Failure to object at trial to alleged partisan action on

the part of a military judge may present an inference that the

defense believed that the military judge remained impartial.

See United States v. Burton, 52 M.J. 223, 226 (C.A.A.F. 2000)

(citing United States v. Hill, 45 M.J. 245, 249 (C.A.A.F.

1996)).

       We will address in turn each of the four alleged instances

of partisanship that Foster has raised:    (1) the military

judge’s improper limitation on Dr. Huffman’s testimony; (2) the

military judge’s hostile examination of Dr. Huffman in front of

the court-martial members; (3) the instruction to members which

failed to identify Dr. Huffman as an expert and inaccurately

summarized her testimony; and (4) inappropriate comments made by

the military judge outside the presence of the members that

demonstrated his bias against Dr. Huffman.

       1.   Limitation of Dr. Huffman’s testimony

       The defense’s pretrial proffer of Dr. Huffman’s testimony

reflects that she was being called to “testify about the effects

of multiple interviews on a child, leading questions, and

improper interview techniques.    She will testify these factors

can taint a child’s testimony and make the child actually

believe something is true that is not.”



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United States v. Foster, No. 06-0238/NA

     A key aspect of Dr. Huffman’s work involves the concept of

source misattribution error where a child over time has

difficulty discerning whether his or her own memory or another’s

repeated questioning is the real source of the information.    In

Dr. Huffman’s view, an analysis of the first interview with the

child is crucial in determining whether source misattribution

error occurred.   The first interview in this case was

unavailable for review because the audio and videotape equipment

failed.   Due to the absence of this record, Dr. Huffman was

unable to perform the source misattribution error analysis.    As

the defense was questioning Dr. Huffman about the interview

procedures that were utilized in this case, the Government

objected on the grounds that it appeared she was about to opine

on the victim’s credibility.

     The military judge convened an Article 39(a), UCMJ, 10

U.S.C. § 839(a) (2000), session outside the presence of the

court-martial members to discuss the objection and Dr. Huffman’s

testimony.   The military judge instructed Dr. Huffman that she

could not reveal whether she thought the victim was telling the

truth.    Dr. Huffman was expressly prohibited from stating that

“no one really could get on the stand and say that [the victim]

is or isn’t telling the truth.”   The rest of Dr. Huffman’s

examination, as well as the cross-examination, redirect




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United States v. Foster, No. 06-0238/NA

examination and re-cross examination proceeded without further

objection or limitation.

     Foster, relying on our decision in United States v. Cacy,

43 M.J. 214 (C.A.A.F. 1995), asserts that this testimonial

limitation deprived him of a critical component of his defense

and urges us to see this restriction as evidence of the military

judge’s bias against Dr. Huffman.     In Cacy, we recognized that

an expert may testify about symptoms that are generally found

among children who have suffered sexual abuse and whether the

child-witness has exhibited these symptoms.    Id. at 217.   An

expert may also testify about patterns of consistency generally

found in the stories of victims as compared to patterns in the

victim’s story.   Id.   Although Cacy allows this type of expert

testimony in appropriate circumstances, this court has

recognized that there is a fine line between admissible

testimony in this area and testimony about a victim’s

credibility or its functional equivalent, which is not

admissible.   See id. at 217-18; United States v. Birdsall, 47

M.J. 404, 410 (C.A.A.F. 1998); United States v. Arruza, 26 M.J.

234, 237 (C.M.A. 1988); see also United States v. Brooks __ M.J.

___ (11)(C.A.A.F. 2007).

     In this case, Dr. Huffman had no basis upon which she could

offer a Cacy-like comparison of typical behavior patterns.

Repeatedly during her testimony, she made the point that unless



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United States v. Foster, No. 06-0238/NA

a recording of the first interview was available for review, she

would not have the means to assess whether the testimony of the

victim was affected by multiple interviews.   Since there was no

record of the initial interview, Dr. Huffman lacked the case-

specific information that she needed to make Cacy-type

comparisons.   Indeed, she stated expressly that “I don’t think

anyone can say that there was [source misattribution error] and

I don’t think anyone can say that there was not.”   Cacy is

therefore inapplicable to this case.

     The military judge ruled that while credibility assessments

are a function of the jury, Dr. Huffman could help the members

decide what factors they should use to carry out that function.

What she could not do was reveal her personal assessment of the

child’s credibility.    The limitation on her testimony was

appropriate and the ruling of the military judge was not

erroneous.   As we have found that the military judge did not err

in his testimonial limitation, there exists no basis upon which

a reasonable observer could conclude that the ruling casts doubt

upon the court-martial’s legality, fairness, and impartiality.

     2.   The military judge’s examination of Dr. Huffman

     Following the examination of Dr. Huffman by the counsel for

both parties, a member submitted several questions concerning

Dr. Huffman’s review of the case and the concept of source

misattribution error.   Based on these questions, the military



                                  8
United States v. Foster, No. 06-0238/NA

judge conducted an examination of Dr. Huffman.   The relevant

portion of this exchange is as follows:

     Q:   Have you ever interviewed [the victim]?

     A:   I have not.

     Q: All right. I’m sure it wasn’t your intent to gloss
     over this, but it was kind of glossed over early on in your
     testimony. I think they were just kind of rushing through
     to get to the crux of your testimony, but I understood you
     to say that in preparation for your testimony here today,
     you reviewed some paperwork but you were primarily
     interested in the number of times the children were
     interviewed, something along those lines. Tell me if you
     will what it is that you reviewed about this case before
     coming in to testify?

     A.   What I typically review would be a videotape ----

     Q.   No, what have you reviewed in this case?

     A. In this case. I was not -– there was no documentation
     given to me from the forensic interviewer -– interview that
     was conducted with [the victim] or [the victim’s brother].
     That information was lost so, therefore, I was sent police
     reports and different things like that, but I -- honestly,
     I did not even look at that because I’m mostly interested
     in the forensic interview and there was no documentation on
     that. So what I asked for was a list of documented
     interviews and who conducted them. So that’s mostly what I
     reviewed.

     Q: All right. So you had a list of the people involved in
     conducting interviews?

     A.   Right.

     Q. Okay. But you did not review the police report or
     anything else that had been submitted to you?

     A.   That is correct.   I did not review those.

     Q. So you, therefore, do not know what was contained
     within the police report?




                                  9
United States v. Foster, No. 06-0238/NA

     A. Right. Because to me, the time delay between when that
     interview was conducted and what was actually contained -–
     what was contained in the report, there’s such a delay that
     even the interviewer could reconstruct how they asked
     questions, what was asked, what was said, but that wasn’t
     of value to me.

     Q. It wasn’t, okay. On cross-examination you did indicate
     that if a child tells the same story over time,
     notwithstanding a number of interviews, intervening
     interviews, that that is not a suggestive interview. None
     of those interviews would be suggestive, in your opinion.

     A. That is correct. But the caveat needs to be said that
     in that first interview, leading -– which we don’t have
     documentation on, leading questions, misleading questions,
     that the child could get clear messages as far as details
     and what needs to be said, and that that could be false
     information that’s then maintained from interview to
     interview. And because I didn’t have that first interview,
     again, I can’t say, “Here are the original things and
     here’s how they were carried through.”

     Q. Sure. Would it be important to you, for example, to
     talk to the person who conducted that first interview and
     determine the types of questions [which] were asked?

     A. No, because they are reconstructing how an interview
     should be asked and what should -– and I believe most
     interviewers would know enough [to know that] you shouldn’t
     ask leading questions, you should ask open-ended questions,
     but ----

     Q.   So you ----

     A.   ---- what actually happened is, we don’t know.

     Q. So, in other words, you wouldn’t believe the person if
     that person told you that, “Gee, I asked non-leading
     questions.”

     A. As a memory expert, years down the road I don’t know
     that they are going to reconstruct correctly because
     they’ve interviewed other people since then, and they don’t
     have documentation from how that interview ----




                                10
United States v. Foster, No. 06-0238/NA

     Q. So you just chose, instead, just to ignore the whole
     thing, not even inquire as to how that interview is
     conducted.

     A. I would look at it, but I would know that there are
     going to be memory errors incorporated because it wasn’t
     conducted -– correctly done.

     Q. And that’s why you didn’t read the police report,
     that’s why you didn’t contact the person or persons who
     conducted these interviews. Because you assumed there
     would be errors in how they would report to you how they
     conducted the interview?

     A. Legally and ethically, I never contact the people that
     conduct the interview.

     Q. So you got a list of names of people who conducted
     interviews with [the victim], you didn’t speak with those
     people; all you have is names?

     A.   Out of less –---

     Q. So you know the number of interviews, and a list of the
     people who conducted the interviews, and that’s it? With
     regard to the fact of the -– this case?

     A. That is correct, and then personal communication with
     defense counsel as far as other facts of the case and what
     was contained in those other things.

     Q. So you don’t know, then, whether there was any source
     misattribution error at all in this case, do you?

     A. I don’t think anyone can say that there was and I don’t
     think anyone can say that there was not.

     Q. Okay. Understand. But you have no basis at all to
     state that that error that you identified is, in fact, an
     issue in this case.

     A. If a forensic interviewer is not careful enough to
     record the testimony ----

     Q. I understand that, but you don’t know that. You don’t
     know that’s so, in this case, you don’t know if source
     attribution error is, in fact, an issue in this case?



                               11
United States v. Foster, No. 06-0238/NA

        A.    That we never could know whether it is or isn’t.

        Defense counsel did not object during the military judge’s

examination of Dr. Huffman.      However, outside the presence of

the members he argued that the tone of the questioning might

have led the members to think negatively about Dr. Huffman’s

preparation for trial or to believe that the military judge did

not think highly of Dr. Huffman or feel that her opinion was

valid.       Defense counsel described the questioning as harsh and

combative and broached the possibility of submitting a proposed

instruction that specifically addressed the exchange.

        Although the military judge denied that his questioning was

harsh and combative, he referenced a generic instruction that he

intended to give requiring the members to disregard any of his

comments or questions that they thought expressed an opinion

about the credibility of a witness or about any issue in the

case.    The matter of a unique instruction on the nature of the

questioning was not raised again and the generic instruction was

given with the final instructions.

        On appeal, Foster describes the military judge’s

questioning of Dr. Huffman as “hostile,” “combative” and

“scathing” and contends that the military judge improperly took

on the tone and tenor of a prosecutor.      The Government argues

that the military judge was acting to ensure that the members

had the information they required to assess the nature and value



                                    12
United States v. Foster, No. 06-0238/NA

of Dr. Huffman’s testimony.   Noting that the defense did not

object to the questioning at trial, the Government also argues

that the military judge diminished the potential for bias

through two curative instructions:    one of which addressed the

proper use of expert testimony and the other which directed the

members to ignore any statements reflecting any personal opinion

or bias by the military judge.

     A military judge “can and sometimes must ask questions in

order to clear up uncertainties in the evidence or to develop

the facts further.”   Ramos, 42 M.J. at 396.    Because “jurors are

ever watchful of the words that fall from him,” however, “a

military judge must be circumspect in what he says to the

parties and in how he examines witnesses.”     Id. (citation and

quotation marks omitted).   In this regard, the tenor used by the

military judge in questioning Dr. Huffman generates concern.

Military judges should take care to elicit information in a

neutral manner and to avoid the kind of approach reflected in

this record that so closely resembles the tenor of cross-

examination.   See United States v. Clower, 23 C.M.A. 15, 18, 48

C.M.R. 307, 310 (1974).   Nevertheless, judging from the

standpoint of a reasonable observer, we have no difficulty

concluding that “taken as a whole in the context of this trial,”

this limited exchange cast no doubt upon the court-martial’s




                                 13
United States v. Foster, No. 06-0238/NA

legality, fairness, and impartiality.   Ramos, 42 M.J. at 396

(citation and quotation marks omitted).

     3.   The expert witness instruction

     Foster argues that the military judge’s expert witness

instruction failed to identify Dr. Huffman as an “expert” and

also failed to accurately summarize her testimony.   From the

trial’s outset, the military judge informed both counsel that he

would not refer to any of the expert witnesses as “experts.”    He

explained that he “[did not] like to use the word ‘expert’”

because he thought “that puts kind of an imprimatur on the

weight to be given to their testimony.”    There was no objection.

     The military judge later gave instructions to the members

that described the testimony of the defense’s two experts, Dr.

Huffman, a developmental research psychologist, and Lieutenant

Commander Steven A. Talmadge Jr., a forensic psychologist, as

“educational testimony.”   The testimony of the Government’s

expert witness, Dr. Elizabeth Heidt Kozisek, a clinical

psychologist, was described as “specialized testimony.”   As to

Dr. Huffman, the instruction, in relevant part, read as follows:

     You have also heard the testimony of Dr. Mary Huffman
     and Lieutenant Commander Steven Talmadge who were
     allowed to testify in this case because their
     knowledge, skill, training, education and experience
     in their respective fields may assist you in
     understanding the evidence or in determining a fact in
     issue; however, you are not required to accept their
     testimony or give it more weight than the testimony of
     any other witness. You should, however, consider



                                14
United States v. Foster, No. 06-0238/NA

     their qualifications in determining the weight you
     will accord their testimony.

          . . . .

          You will recall that Dr. Huffman did not testify
     about the nature of the pretrial interviews of [the
     victim] and [the victim’s brother] that were conducted
     by various individuals in this case, nor about the
     types of questions that were used in conducting those
     interviews. Dr. Huffman did testify that because the
     videotape recording of a forensic interview of [the
     victim] by Special Agent Dillard had a blank audio
     track she was unable to perform an assessment of the
     types of questions asked during that interview.
     However, she did provide general information that
     suggestibility can cause memory errors, that every
     child is different in this regard with some children
     being more susceptible to suggestion than others, that
     age is a factor regarding the degree to which children
     are susceptible to suggestion, and that the type of
     questions employed during the interview process is
     significant in achieving a reliable result.

          Dr. Huffman’s testimony was permitted solely for
     its educational value to provide general information
     about children’s memory in the courtroom due to
     repeated interviews and the effects of suggestion on
     memory to assist you in evaluating the evidence and
     determining the facts.

          . . . .

           Using the general educational information
     supplied by Lieutenant Commander Talmadge and Dr.
     Huffman, the specific information regarding the
     clinical evaluations of [the victim and her brother]
     supplied by Dr. Heidt-Kozisek, your own observations
     in court, your own experience in dealing with people,
     and all other factors I mentioned in determining
     witness credibility, it is your function to determine
     the credibility of the witnesses, the believability of
     their testimony and, ultimately, the facts of this
     case.

     Before the military judge gave these instructions to the

members, both counsel had the opportunity to review the


                               15
United States v. Foster, No. 06-0238/NA

instructions.   Defense counsel did not object and in fact agreed

that the military judge had summarized the specialized and

educational testimony “fairly and accurately.”   Government

counsel objected to the instructions on several grounds but

those objections were overruled by the military judge.2

Government counsel then requested that the military judge

instruct the members that they were not bound by his summaries.

The military judge agreed and subsequently amended the

Government’s proposed version of that instruction as follows:

     Now, you are not bound by my summary above of the
     testimony provided by Dr. Heidt-Kozisek, Lieutenant
     Commander Talmadge and Dr. Huffman. That summary is
     provided merely to assist you in understanding their
     testimony. It is not evidence, and it is not intended
     to be a comprehensive summary of every question asked
     of these witnesses and their answers to those
     questions. I again instruct you that you must base
     the determination of the issues in this case on the
     evidence as you remember it.

     Foster argues on appeal that the military judge plainly

erred by not giving a more detailed and accurate instruction.

While Foster argues that the military judge committed plain

error in regard to the expert witness instruction, he does not

rely on that alleged error as a basis for reversal in and of


2
  The Government argued: the summary of the Government’s expert
witness’s testimony should not include a concession that she
made in direct examination; Dr. Huffman’s summary should be more
specific so that it reflected several particular points that
assisted the Government’s case; and finally, the military judge
should not use the summaries at all but rather employ the
standard expert testimony instruction.



                                16
United States v. Foster, No. 06-0238/NA

itself, but rather as further evidence of the military judge’s

partisanship.   Under these circumstances we will evaluate the

instruction under the test established in Quintanilla for those

instances where a military judge’s impartiality is challenged.3

See also Acosta, 49 M.J. at 18.

     Foster does not articulate exactly what the instruction

should have said, but his complaint focuses on the military

judge’s characterization of Dr. Huffman’s testimony as “general

information,” which Foster considers inferior to the military

judge’s characterization of the testimony of the Government

witness as “specialized.”   Foster asserts that together with the

military judge’s examination of Dr. Huffman, the instruction

essentially told the members that Dr. Huffman’s testimony was

worthless.   The Government responds on appeal that the military

judge’s instructions were accurate.

     Within certain bounds, military judges can comment upon and

summarize evidence admitted in the form of expert witness

testimony.   Rule for Courts-Martial (R.C.M.) 920(e)(7) states

that instructions on findings shall include “[s]uch other

explanations, descriptions, or directions as may be necessary


3
  “When a military judge’s impartiality is challenged on appeal,
the test is whether, taken as a whole in the context of [the]
trial, [the] court-martial’s legality, fairness, and
impartiality were put into doubt by the military judge’s
actions.” United States v. Quintanilla, 56 M.J. 37, 78
(C.A.A.F. 2001).



                                  17
United States v. Foster, No. 06-0238/NA

and which are properly requested by a party or which the

military judge determines, sua sponte, should be given.”     In

moving beyond benchbook instructions, however, military judges

must use caution not to do so in a manner that either places

undue emphasis on or minimizes the importance of expert

testimony.4   Cf. United States v. Washington, 63 M.J. 418, 425

(C.A.A.F. 2006) (“A particular formula is not required in

administering an oath or affirmation, although adherence to the

benchbook formula will minimize dispute.”).

     Expert testimony is appropriate where “scientific,

technical, or other specialized knowledge will assist the trier

of fact to understand the evidence or to determine a fact in

issue . . . .”    Military Rules of Evidence (M.R.E.) 702.   When

an individual testifies under M.R.E. 702, it is precisely

because the military judge has found that individual to hold the

requisite qualifications of an expert.    The members are entitled

to be informed of that designation and a military judge must not

impose his or her own views to either diminish or enhance that

important role.   We find that the military judge erred in

failing to use the term “expert” and by substituting that term

with the terms “specialized” and “educational.”




4
  See Dep’t of the Army, Pamphlet 27-9, Legal Services, Military
Judges’ Benchbook ch. 7, para. 7-9-1 (2002).

                                 18
United States v. Foster, No. 06-0238/NA

Although we find that the military judge erred in this regard,

we do not believe that the instructions raise any reasonable

doubt about the military judge’s impartiality.   See United

States v. Cooper, 51 M.J. 247, 252 (C.A.A.F. 1999).     While the

military judge’s instructions on expert testimony reflected his

personal views as to the value of that testimony, his refusal to

use the term “expert” applied equally to both parties’ witnesses

and we are not persuaded that the term “educational testimony”

is critical of Dr. Huffman or prejudicial to Foster’s defense.

We conclude that Foster has failed to demonstrate that these

unchallenged expert witness instructions affected the trial’s

legality, fairness or impartiality.

     4.   Comments made by the military judge outside the
     members’ presence

     Foster argues that comments made by the military judge

during an Article 39(a), UCMJ, session further demonstrate his

bias against Dr. Huffman.   During this hearing, which was held

outside the hearing of the members, the military judge made

several intemperate statements concerning Dr. Huffman’s

experience, ego and the need to control her testimony.    While

the military judge’s language was inappropriate we do not

believe that this personal expression of irritation impacted

Foster’s right to a fair trial in light of the fact that the

comments were not heard by the court-martial members.    See

United States v. Reynolds, 24 M.J. 261, 264 (C.M.A. 1987)


                                19
United States v. Foster, No. 06-0238/NA

(upholding harsh comments used to exercise control over

proceedings when given outside the presence of the court

members).

                            Conclusion

     Foster has failed to present sufficient evidence to

overcome the strong presumption of a military judge’s

impartiality.   Although the military judge’s conduct at times

departed from judicial propriety, a reasonable observer would

conclude that in the context of the whole trial, his actions did

not compromise the court-martial’s legality, fairness, or

impartiality.

                             Decision

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




                                20
