                              IN THE CASE OF


                        UNITED STATES, Appellee

                                     v.

                       William A. BYRD, Sergeant
                          U.S. Army, Appellant

                               No. 03-0561

                         Crim. App. No. 9901101


       United States Court of Appeals for the Armed Forces

                          Argued March 2, 2004

                         Decided June 10, 2004

GIERKE, J., delivered the opinion of the Court, in which EFFRON,
   BAKER, and ERDMANN, JJ., joined. CRAWFORD, C.J., filed an
                opinion concurring in the result.

                                  Counsel

For Appellant: Captain Gregory T. Rinckey (argued); Colonel
Robert D. Teetsel, Lieutenant Colonel Mark Tellitocci (on
brief); Major Allyson G. Lambert and Captain Mary E. Card.

For Appellee: Captain Edward E. Wiggers (argued); Colonel
Lauren B. Leeker, Lieutenant Colonel Margaret B. Baines, and
Captain Janine P. Felsman (on brief).

Military Judge:    Gary J. Holland


  This opinion is subject to editorial correction before final publication.
United States v. Byrd, No. 03-0561/AR

     Judge GIERKE delivered the opinion of the Court.

     Military Rule of Evidence 701 [hereinafter M.R.E.] limits

opinion testimony by lay witnesses.      This case concerns whether

M.R.E. 701 allows a lay witness to interpret what Appellant

meant when he wrote certain passages in letters to the witness.

We agree with the well-established federal civilian rule that

this kind of lay opinion testimony is, with certain limited

exceptions, impermissible.   Although the military judge

improperly allowed a lay witness to offer her opinion about

Appellant’s meaning in various passages he wrote to her, we find

the error to be harmless.

                             BACKGROUND

     Appellant was tried by a general court-martial consisting

of officer and enlisted members.       Contrary to Appellant’s pleas,

the members found him guilty of one specification of committing

forcible sodomy with his daughter A.B. on divers occasions in

violation of Article 125 of the Uniform Code of Military Justice

[hereinafter UCMJ], 10 U.S.C. § 925 (2000).      The members found

him not guilty of seven other specifications alleging various

acts of sexual misconduct with the same daughter.      The members

sentenced Appellant to a dishonorable discharge, confinement for

ten months, reduction to the lowest enlisted grade, and

forfeiture of all pay and allowances.      The convening authority

initially approved the sentence as adjudged.



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United States v. Byrd, No. 03-0561/AR

     The Army Court of Criminal Appeals set aside the original

convening authority’s action in an unpublished opinion.     The

convening authority then again approved the sentence as

adjudged, but retroactively waived forfeitures for a six-month

period.   The Army Court then affirmed the findings and sentence

in an unpublished opinion and Appellant filed a timely petition

for grant of review.   We granted the petition to address the

permissible scope of lay opinion testimony.   See 59 M.J. 215

(C.A.A.F. 2003).   This issue does not involve, and we do not

address, the distinct question of when a witness may testify

about how another person’s communications affect the witness.

                                FACTS

     Appellant was charged with sexual offenses involving his

daughter A.B. when she was ten and eleven years old.    While

Appellant was confined by civilian authorities before trial, he

wrote two letters to his wife, as well as another letter to

their daughter A.B.    The defense moved in limine to exclude

those letters and Mrs. Byrd’s testimony about them.

     The defense argued that any testimony about the letters’

content would be speculative and that the testimony’s

prejudicial effect would outweigh its probative value.    At a

hearing on this motion, Mrs. Byrd testified that she recognized

the handwriting on the letters as Appellant’s.   She also

testified that she had known Appellant for about sixteen years



                                  3
United States v. Byrd, No. 03-0561/AR

and had been married to him for eight years.    She then provided

her interpretation of various phrases appearing in the letters.

The trial counsel argued that the letters and Mrs. Byrd’s

opinion testimony were admissible to show that Appellant was

threatening his wife to impede his family’s cooperation with the

prosecution.    The trial counsel also noted that the Government

intended to present expert testimony from a psychologist

concerning how “statements can be used as threats designed to

have a spouse not go forward with charges.”

     In ruling on the motion to exclude Mrs. Byrd’s testimony

about the letters, the military judge first noted that the

letters themselves were admissible as “admissions by the

accused.”     The military judge then made a contingent ruling that

Mrs. Byrd’s testimony would become relevant if the Government

presented expert testimony concerning accused individuals’ use

of psychological or financial pressure to convince their victims

to recant.1    The military judge specifically concluded that “Mrs.

Byrd’s opinion as to what the accused was trying to say to her”

would be helpful to the members.

     Mrs. Byrd ultimately testified about the letters during the

Government’s case in chief.    The trial counsel directed Mrs.


1
  The Government satisfied this condition by presenting the
testimony of a civilian psychiatrist from Fort Campbell, though
curiously the Government called him as a witness after Mrs. Byrd
had already testified.



                                   4
United States v. Byrd, No. 03-0561/AR

Byrd to read various passages from the letters, which had not

yet been published to the members.   After the members heard each

passage, the trial counsel elicited additional information from

Mrs. Byrd, including her opinion about what Appellant meant when

he wrote some of the passages.   The defense now challenges the

admissibility of her responses concerning eight specific

passages.

                            DISCUSSION

     M.R.E. 701 establishes a two-part test for admissibility of

lay opinion:   (1) the opinion must be rationally based on the

witness’s perception; and (2) the opinion must be helpful to the

determination of a fact in issue.    Like other evidentiary

rulings, a military judge’s application of M.R.E. 701 is

reviewed for an abuse of discretion.     See United States v.

Littlewood, 53 M.J. 349, 353 (C.A.A.F. 2000).    A trial judge’s

ruling is “entitled to ‘due deference.’”    United States v.

Maxwell, 38 M.J. 148, 152 (C.M.A. 1993) (quoting United States

v. Strozier, 31 M.J. 283, 288 (C.M.A. 1990)).    Accordingly, we

will reverse for an abuse of discretion only “if the military

judge’s findings of fact are clearly erroneous or if his

decision is influenced by an erroneous view of the law.”      United

States v. Sullivan, 42 M.J. 360, 363 (C.A.A.F. 1995).    In this

case, we find such an abuse of discretion.




                                 5
United States v. Byrd, No. 03-0561/AR

     Application of the lay witness opinion rule, M.R.E. 701, to

interpretations of the meaning of another person’s

communications is an issue of first impression in military law.

Accordingly, we will seek guidance from judicial interpretations

of Federal Rule of Evidence 701, the model for its military

counterpart.2   See Manual for Courts-Martial, United States (2002

ed.), Analysis of the Military Rules of Evidence A22-49 (“Rule

701 is taken from the Federal Rule without change.”); see also

id. at A22-2, Analysis of M.R.E. 101 (“While specific decisions

of the Article III courts involving rules which are common both

to the Military Rules and the Federal Rules should be considered

very persuasive, they are not binding.”).

     The general rule in federal civilian courts is that “[l]ay

witnesses are normally not permitted to testify about their

subjective interpretations or conclusions as to what has been

said.”   United States v. Cox, 633 F.2d 871, 875 (9th Cir. 1980);


2
  This case was tried before the 2000 amendment to Federal Rule
of Evidence 701, which prohibited lay opinion testimony “based
on scientific, technical, or other specialized knowledge within
the scope of Rule 702.” See Amendments to Federal Rules of
Evidence, 529 U.S. 1189, 1194-95 (2000). While the 2002 edition
of the Manual for Courts-Martial does not reflect the change,
the 2000 amendment to Federal Rule of Evidence 701 now applies
in courts-martial through operation of M.R.E. 1102. A proposed
amendment to the Manual for Courts-Martial specifically
incorporates the change to Rule 701. See Notice of Proposed
Amendments to the Manual for Courts-Martial, United States,
(2000 ed.) and Notice of Public Meeting, 66 Fed. Reg. 30,431
(proposed June 6, 2001). Other proposed amendments incorporate
changes to M.R.E.s 103(a)(2), 404(a), 701-702, and 803(6) that
have already taken effect through operation of M.R.E. 1102.

                                 6
United States v. Byrd, No. 03-0561/AR

see also United States v. Green, 44 M.J. 631, 639 n.3 (C.G. Ct.

Crim. App. 1996) (O’Hara, J., concurring).   Such lay

interpretations are admissible “only if rationally based on

perception of a witness and helpful either to an understanding

of the testimony of the witness on the stand or to the

determination of a fact in issue.”   Cox, 633 F.2d at 875.3   For

example, a lay witness may be permitted to interpret “coded or

‘code-like’ conversations.”   United States v. Dicker, 853 F.2d

1103, 1108 (3d Cir. 1988).




3
 The First, Third, Fifth, Seventh, and D.C. Circuits follow
rules similar to the Ninth Circuit’s formulation in Cox. See,
e.g., United States v. Saccoccia, 58 F.3d 754 (1st Cir. 1995);
United States v. Dicker, 853 F.2d 1103, 1108-09 (3d Cir. 1988);
United States v. White, 569 F.2d 263, 267 (5th Cir. 1978);
United States v. Marzano, 537 F.2d 257, 268 (7th Cir. 1976);
DeLoach v. United States, 307 F.2d 653, 655 (D.C. Cir. 1962)
(pre-Federal Rules of Evidence case); see also United States v.
Coleman, 284 F.3d 892, 894 (8th Cir. 2002) (upholding police
officer’s testimony interpreting defendant’s “drug jargon”);
United States v. People, 250 F.3d 630, 640-42 (8th Cir. 2001)
(holding that FBI agent’s interpretations of codefendants’
conversations were inadmissible under Fed. R. Evid. 701). The
Sixth Circuit, however, maintains that a witness may “testify in
the form of an opinion as to his understanding of a defendant’s
statement.” United States v. Graham, 856 F.2d 756, 759 (6th
Cir. 1988); accord United States v. Elder, 90 F.3d 1110, 1114
(6th Cir. 1996). See also United States v. Awan, 966 F.2d 1415,
1430 (11th Cir. 1992) (interpreting Fed. R. Evid. 701 to allow a
witness to clarify conversations that are abbreviated, composed
of unfinished sentences, or containing ambiguous references to
events that were clear only to the communication’s
participants).




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United States v. Byrd, No. 03-0561/AR

     The Second Circuit has emphasized the foundational

requirements that the proponent must satisfy before a witness’s

interpretation of another person’s meaning becomes admissible.

“In order to allow lay opinion testimony interpreting a facially

coherent conversation . . ., the government would have to

establish a foundation that called into question the apparent

coherence of the conversation so that it no longer seemed clear,

coherent, or legitimate.”   United States v. Garcia, 291 F.3d

127, 142 (2d Cir. 2002).

     We agree with the general prohibition of lay opinion

testimony interpreting facially coherent communications.    “Where

terms are capable of being understood by the layman, and where

the jury is capable of interpreting the language or slang

involved, lay witness opinion testimony is improper, as is the

lay witness’s conclusion or interpretation of the conversation.”

State v. Webb, 792 P.2d 1097, 1100 (Mont. 1990).

     For a lay opinion interpreting another person’s meaning to

be admissible, the proponent must establish that the witness has

some special basis for determining the speaker’s true meaning.

See generally David A. Schlueter, et al., Military Evidentiary

Foundations 272-73 (2d ed. 2000).    Once that foundation is laid,

the witness “may clarify conversations that are abbreviated,

composed of unfinished sentences and punctuated with ambiguous

references to events that were clear only to the conversation



                                 8
United States v. Byrd, No. 03-0561/AR

participants,” United States v. Sneed, 34 F.3d 1570, 1581 (10th

Cir. 1994), or which include code or code-like language.

Dicker, 853 F.2d at 1108.   When such permissible testimony is

presented, the “accuracy of those perceptions is a question for

the [members].”   Sneed, 34 F.3d at 1581.

     These general rules can be applied to sort Mrs. Byrd’s

testimony concerning her husband’s letters into three

categories:

     (1)   Mrs. Byrd’s opinions concerning Appellant’s meaning in

several passages that were facially coherent were inadmissible.

     (2)   Mrs. Byrd’s opinions concerning Appellant’s meaning

when he wrote certain ambiguous statements were also

inadmissible because they were unaccompanied by any

particularized demonstration that she had a basis for

determining Appellant’s true meaning.   It was not enough to show

that Mrs. Byrd was familiar with Appellant’s handwriting and had

corresponded with him in the past.   As the proponent of this

testimony, the Government was required to demonstrate that Mrs.

Byrd had some basis for knowing Appellant’s intended meaning for

the particular phrases that she purported to interpret.

     (3)   Mrs. Byrd’s testimony providing background information

concerning references in the letters to other events was

admissible.




                                 9
United States v. Byrd, No. 03-0561/AR

     We will now address Mrs. Byrd’s testimony concerning each

of the eight passages.

                              Passage One

     Appellant’s first challenge is to Mrs. Byrd’s testimony

interpreting a portion of Appellant’s letter of June 24, 1999,

that stated, “Well, I will.    I won’t strike until you tell me

your intentions.   My thinking is, you care for me and want to

help me get out of this.   That’s what I think.    I’ll wait till

[sic] you decide the other.”

     During her testimony on the merits, Mrs. Byrd explained, “I

had always been afraid that he would get mad and take the money

out of the bank and then I wouldn’t have any money to pay the

bills and take care of the kids.”      She then provided this

interpretation of the passage:

     I took it that if I didn’t – that if I didn’t tell –
     when he found out which way I was going to tell – say
     it did happen or say it didn’t happen, he was going to
     wait and then based upon that was what he was going to
     do, based upon whichever way that I went. And that
     because of how I felt about him, that I would keep on
     doing what I had been doing, trying to protect him.

The trial counsel then asked, “When you say it did happen or

didn’t happen, what are you talking about?”     Mrs. Byrd answered,

“I’m talking about the sexual abuse.     If we kept saying that it

did not happen and if I kept not cooperating.”     The trial

counsel followed up by asking, “Then if you kept on doing that,

what would he do?”   Mrs. Byrd answered, “If I kept on not



                                  10
United States v. Byrd, No. 03-0561/AR

cooperating with the authorities, then things would continue on

as the same that he would give me financial support.”

     Appellant’s meaning in this passage is unclear.      Mrs. Byrd

interpreted it as a promise of continued financial support in

return for not cooperating with the prosecution.   That

interpretation is not clear from the communication itself.

Accordingly, Mrs. Byrd’s interpretation of Appellant’s meaning

was admissible only if supported by an evidentiary foundation to

establish that Mrs. Byrd had some means, such as prior usage, to

determine Appellant’s intent when he wrote these words.

However, during the motions hearing, the Government did not lay

any foundation to demonstrate that words or phrases used in this

passage had some established meaning in the couple’s

communications.   Thus, when the military judge ruled on the

motion, he erred when he held that this testimony was

admissible.   Nor did the Government lay the missing foundation

later when Mrs. Byrd testified during the Government’s case-in-

chief and in rebuttal.   Mrs. Byrd’s testimony concerning the

first passage therefore fell into the second category discussed

above and was inadmissible.

                              Passage Two

     Also in his June 24 letter, Appellant wrote, “Even if I did

go away for the rest of my life, I’ll be unable to help

financially in prison, but I’ll help mentally.”    The trial



                                  11
United States v. Byrd, No. 03-0561/AR

counsel asked Mrs. Byrd, “What did you think he meant when he

said, ‘go away for the rest of my life?’”    Mrs. Byrd answered,

“That he thought he would go to jail.     He would go to prison.”

The trial counsel then asked, “Why would he go to jail?”       She

responded, “If he was found guilty of the charges of abuse.”

     The meaning of this passage is plain on its face.     Thus,

testimony about this passage fell into the first category

discussed above and was inadmissible.     Mrs. Byrd’s

interpretation was particularly problematic because it subtly

changed the passage’s meaning.   While Appellant’s sentence was

conditional -- “if I did go away” -- she testified that “he

thought he would go to jail.”

                           Passage Three

     The final passage at issue from the June 24 letter read,

“Tell the kids I love them very much.     I’m going to do time, no

doubt.”   Mrs. Byrd interpreted this passage to mean “[t]hat he

thought he was going to go to prison.”     Like the previous

passage, Appellant’s meaning is plain, and the military judge

erred by allowing Mrs. Byrd to “interpret” it.

                           Passage Four

     The first passage at issue from Appellant’s June 26 letter

to his wife stated, “If [A.B.] would only write to me that she’s

going to stick by me and in court say it didn’t happen.”       Mrs.

Byrd interpreted this passage to mean that “he wants her not



                                 12
United States v. Byrd, No. 03-0561/AR

[sic] to say that it didn’t happen.”    Again, the passage’s

meaning is plain on its face, and the military judge erred by

allowing Mrs. Byrd to offer her opinion concerning its meaning.

                           Passage Five

     Appellant also wrote in his June 26 letter:

     The main reason I told you what I did in the [car]
     before I left was to gain trust and answer your
     questions. I also did it because I know if I tell you
     the deal, there is a chance for our relationship. I
     mean, you did say so before, so I’m going to keep that
     in mind.

     The trial counsel asked Mrs. Byrd to explain the reference

to the conversation in the car.    She answered:

     It was a conversation that took place when we were in
     the car and I was taking him to Fort Campbell. And we
     were talking and he said I could ask him anything I
     wanted and he would tell it to me truthfully. And I
     asked him did him [sic] and [A.B.] have sex again. . .
     . And he told me yes, they had. And the reason that
     it had happened was because [A.B.] wanted him to and
     that she was going to tell me that it happened anyway.
     And so he went ahead and did it.

     During Mrs. Byrd’s explanation of passage five, the trial

counsel also asked, “[W]hen he says, ‘I mean you did say so

before, so I’m going to keep that in mind,’ what is he talking

about there?”   Mrs. Byrd answered, “I had told him that if he

told me the truth, that – before, when I had found out, that I

wouldn’t leave him, that we you know, we could go to get some

counseling and we could work through this.”   The trial counsel

then clarified that Mrs. Byrd was referring to her actions after

A.B. first revealed Appellant’s abuse of her.


                                  13
United States v. Byrd, No. 03-0561/AR

       Mrs. Byrd’s testimony concerning this passage was a

permissible explanation of an “ambiguous reference[] to events

that were clear only to the” letter’s author and recipient.

Sneed, 34 F.3d at 1581.     The Government’s presentation of her

testimony concerning Appellant’s remarks during a previous

conversation was also independently permissible as an account of

admissions by a party opponent.    See M.R.E. 801(d)(2).

                              Passage Six

       In his June 26 letter to his wife, Appellant also wrote,

“God, I love my children.    I want to be a part of their life so

bad.   How can I . . ., making $15.00 a month the rest of my

life.”   Mrs. Byrd interpreted this passage to mean “[t]hat if he

goes to prison, he’s only going to be making $15.00, I guess a

day or whatever.   And he wouldn’t be able to help us.     He

wouldn’t be able to take care of the family.”

       The meaning of passage six appears to be clear.   Thus, it

fell into the first category discussed above, and allowing

testimony to interpret it was error.    To the extent that this

passage is ambiguous, that ambiguity does not appear to

implicate any special knowledge of its intended reader.      Neither

during the motions hearing nor during Mrs. Byrd’s testimony

before the members did the Government lay a foundation to

establish that Mrs. Byrd had any unique ability to interpret

this particular passage.    Her testimony was simply conjecture.



                                  14
United States v. Byrd, No. 03-0561/AR

Thus, even if the interpretation of this passage did not fall

into the first category discussed above, it fell into the

second.   In either case, Mrs. Byrd’s interpretation of passage

six constituted impermissible lay opinion testimony.

                            Passage Seven

      Appellant’s June 26 letter also stated, “I’d do anything

for our marriage, even counseling or pretty much anything you or

[A.B.] want[].   Not guilty will stay in effect.   Everything

else, I’ll do for the family and their wishes.”

      The trial counsel asked Mrs. Byrd, “When he says he’ll do

anything for the marriage, what is he talking about?”     She

answered, “I had told him that I wanted us to get counseling.”

The trial counsel then asked, “When did you tell him that?”      She

replied, “I had been telling him the whole time this was going

on.   I had told him that we needed to get counseling.”   Mrs.

Byrd explained that Appellant “said that we couldn’t get

counseling.   The only counseling we need was each other, because

if we told – if we went somewhere and told them what was going

on then they would have to act on what we told them.”     She also

testified that she meant both marriage counseling and counseling

concerning the abuse.

      Mrs. Byrd’s testimony concerning this passage was

permissible for the same reasons discussed in connection with

passage five, above.    The Government was permitted to elicit



                                 15
United States v. Byrd, No. 03-0561/AR

Mrs. Byrd’s explanation of ambiguous references that were clear

only to the letter’s author and recipient, and the testimony

concerning Appellant’s remarks in earlier conversations was

admissible as an account of admissions by a party opponent.

                            Passage Eight

     The final passage at issue from Appellant’s June 26 letter

stated, “They’ll see me of course.     I’ll be in prison then, but

they know I love them.”    The trial counsel asked Mrs. Byrd,

“[W]hy would he be in prison?”    She replied, “If he got -- if he

got found guilty of the charges of the sexual abuse.”

     The meaning of passage eight is plain on its face.      Mrs.

Byrd’s testimony concerning the passage, therefore, fell into

the first category discussed above and was inadmissible.

                               Summary

     We hold that the military judge properly allowed Mrs. Byrd

to provide background information concerning passages five and

seven.   However, we hold that the military judge erred by

allowing the Government to present her lay opinions concerning

Appellant’s meaning when he wrote the remaining six passages.

                          Prejudice Analysis

     Having found that the military judge erroneously allowed

Mrs. Byrd’s testimony concerning six of the passages, we will

test for prejudice.   “We evaluate prejudice from an erroneous

evidentiary ruling by weighing (1) the strength of the



                                  16
United States v. Byrd, No. 03-0561/AR

Government’s case, (2) the strength of the defense case, (3) the

materiality of the evidence in question, and (4) the quality of

the evidence in question.”   United States v. Kerr, 51 M.J. 401,

405 (C.A.A.F. 1999).   The burden of demonstrating harmlessness

rests with the Government.   United States v. Baumann, 54 M.J.

100, 105 (C.A.A.F. 2000).    In this case, the Government easily

carries this burden.

     This was a hard-fought case, involving extensive evidence

presented by both the Government and the defense.   The

Government’s case included the testimony of A.B. herself

concerning her father’s sexual offenses.   A.B.’s younger brother

testified that he saw Appellant and A.B. in the shower together

naked.   A.B.’s younger sister testified that she once looked

through a crack in their home’s master bedroom door and saw

Appellant kissing A.B.   Appellant’s wife testified that

Appellant twice admitted to her that he did sexually abuse A.B.

     The defense case included Appellant’s explicit denial of

the offenses, extensive good military character evidence, a

limited alibi defense, and evidence about A.B.’s recantation of

her allegations in the midst of child custody hearings.

     While the contentious nature of the case militates in favor

of finding prejudice, other aspects of this case convince us

that the error was harmless.   Mrs. Byrd’s inadmissible testimony

concerning the six passages was of limited materiality.    Other



                                 17
United States v. Byrd, No. 03-0561/AR

aspects of her testimony concerning Appellant’s admissions and a

request from Appellant to destroy evidence were, if believed,

far more damaging to the defense.

     Nor was Mrs. Byrd’s testimony about the letters a focal

point of the case.   For example, during his closing argument to

the members, the trial counsel emphasized not Mrs. Byrd’s

interpretation of the letters, but rather the language of the

letters themselves and Appellant’s testimony about the letters.

In the larger context of the Government’s case, Mrs. Byrd’s

impermissible opinions concerning six passages in Appellant’s

letters were insignificant.    To the extent that the letters

influenced the findings, it was Appellant’s own words rather

than Mrs. Byrd’s interpretations of those words that hurt the

defense.   Thus, Appellant was not prejudiced by the military

judge’s erroneous rulings.

                              CONCLUSION

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




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United States v. Byrd, No. 03-0561/AR


     CRAWFORD, Chief Judge (concurring in the result):

     The majority is incorrect to find an abuse of discretion,

when the “courts have been very liberal in admitting witnesses’

testimony as to another’s state of mind . . . .”    United States

v. Hoffner, 777 F.2d 1423, 1425 (10th Cir. 1985).    See

John Hancock Mut. Life Ins. Co. v. Dutton, 585 F.2d 1289, 1294

(5th Cir. 1978)(admitted testimony of decedent’s daughter that

she did not believe that the decedent thought his wife would

ever shoot him).   Indeed, the preference under the Military

Rules of Evidence [hereinafter M.R.E.] is for admission of

evidence unless it is not legally and logically relevant.

Appellant’s wife, Mrs. Byrd, could certainly testify as to her

reasonable interpretation of the letters, a series of veiled

threats by Appellant aimed to influence his wife’s testimony and

the testimony of the victim, A.B.

     To determine the admissibility of opinion testimony by lay

witnesses, M.R.E. 701 requires examination of several factors,

some of which the majority ignores and are set forth below.    The

majority also did not consider the M.R.E. 401-404 rules, the

standard of review, or the principles behind M.R.E. 701.

Moreover, many cases cited by the majority1 would permit the



1
  See, e.g., United States v. Coleman, 284 F.3d 892 (8th Cir.
2002); United States v. Dicker, 853 F.2d 1103 (3d Cir. 1988)(and
cases cited therein). See also United States v. Garcia, 291
F.3d 127, 140-42 (2d Cir. 2002); United States v. Novaton, 271
F.3d 968, 1007-09 (11th Cir. 2001); United States v. De Peri,
778 F.2d 963, 977-78 (3d Cir. 1985).
United States v. Byrd, No. 03-0561/AR

admission of these coded veiled messages by Appellant.

Certainly, the judge’s decision in admitting the letters was not

an abuse of discretion.

     Lay opinions generally are inadmissible.   Nevertheless, the

rule against lay opinions is not an absolute rule and is subject

to relaxation.   M.R.E. 701 sets forth the prevailing practice

and is a rule of preference rather than a rule of exclusion.     1

John W. Strong, et al., McCormick on Evidence § 11 at 48 (1999).

M.R.E. 701 provides:2

          If the witness is not testifying as an expert,
     the testimony of the witness in the form of opinions
     or inference is limited to those opinions or
     inferences which are (a) rationally based on the
     perception of the witness and (b) helpful to a clear
     understanding of the testimony of the witness or the
     determination of a fact in issue, and (c) not based on
     scientific, technical, or other specialized knowledge
     within the scope of Rule 702.

This case concerns the first two prongs of this rule.     The third

prong and the amendments to M.R.E. 702 were added in December

2000 “to eliminate the risk that the reliability requirements

set forth in [M.R.E.] 702 would be evaded through the simple

expedient of proffering expert in lay witness clothing.”

Advisory Committee Notes to Federal Rules of Evidence at 120.

     Part of the first prong restates the personal knowledge

requirement in M.R.E. 602.   That is not an issue here.   Another

portion of the first prong, which is at issue, is the



2
  See Amendments to the Federal Rules of Evidence, 529 U.S. 1189,
1194-95 (2000); M.R.E. 1102.
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United States v. Byrd, No. 03-0561/AR

“rationally based” aspect, that is, the opinion must be a

reasonable inference drawn from the facts.   The second prong

requires the testimony to be helpful to the factfinder’s “clear

understanding of the testimony of the witness.”   As to this

prong, the courts have been surprisingly liberal in admitting

lay opinions about the state of mind of third persons.   Winant

v. Bostic, 5 F.3d 767 (4th Cir. 1993)(witness concluded that

land developers never intended to do what they promise); United

States v. Rea, 958 F.2d 1206, 1215 (2d Cir. 1992)(“There is no

theoretical prohibition against allowing lay witnesses to give

their opinions as to the mental states of others.   Accordingly,

these rules do not, in principle, bar a lay witness from

testifying as to whether a defendant in a criminal prosecution

had the requisite knowledge.”)(citations omitted); United States

v. Hoffner, 777 F.2d 1423, 1425 (10th Cir. 1985).

     M.R.E. 701 allows the witness to draw reasonable inferences

based on his or her experience and knowledge of the accused.     In

this case, Appellant’s wife gave her overall impressions

simplifying a very detailed letter.   “Knowledgeable witnesses

can easily satisfy the rational basis and helpfulness criteria

in providing interpretative opinions on the mental states of

others.”   Christopher B. Mueller & Laird C. Kirkpatric, Evidence

§ 7.4 at 615 (3d ed. 2003).

     When it is impractical for a witness to verbalize all the

data, the witness’s inferential testimony is generally

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United States v. Byrd, No. 03-0561/AR

admissible.    Id. at 614-15.   Lay people have been able to

express opinions on identity, conduct, competence, feelings,

light or darkness, sound, size, weight, distance, speed, and an

endless number of other things.    McCormick, supra, at § 11 at

47-48 n.22 (citing Ladd, Expert Testimony, 5 Vand. L. Rev. 414,

417 (1952)).   The Federal Rules of Evidence Advisory Committee

Note observes:

     The rule assumes that the natural characteristics of
     the adversary system will generally lead to an
     acceptable result, since the detailed account carries
     more conviction than broad assertion, and a lawyer
     can be expected to display his witness to the best
     advantage. If he fails to do so, cross-examination
     and argument will point up the weakness.

This is especially true where the witness attempts to choose up

sides.   Id.

     The courts have been more receptive to lay opinions about

the state of mind of third parties.    Id. at 50.   A number of

courts have allowed a person to testify about another’s state of

mind, i.e., grief, intent, and so forth.    This is true so long

as it is clear that the witness is expressing an opinion that

can be treated like other witnesses, and the testimony can be

rejected.   Lightfoot v. Union Carbide Corp., 110 F.3d 898, 911

(2d Cir. 1997)(witness cited “objective facts” supporting

opinion); Hoffner, 777 F.2d at 1425-26)(“Courts have been very

liberal in admitting witnesses’ testimony as to another’s state

of mind if the witness has had sufficient opportunity to observe

the accused so as to draw a rational conclusion about the intent

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United States v. Byrd, No. 03-0561/AR

of the accused. . . .   Determination of the preliminary

questions of perception and helpfulness are within the

discretion of the trial court.”); United States v. McClintic,

570 F.2d 685, 690 (8th Cir. 1978)(witness could testify that the

defendant knew the goods he received were fraudulently obtained

when the witness had heard the defendant discussing the scheme

for obtaining the goods).

       The standard of review for evidentiary rulings is whether

the judge abused his discretion.       The judge in this case did

not.   The abuse of discretion standard requires not that the

judge was wrong, but rather was clearly wrong.      As we have

stated, it is not that the judge is maybe wrong or probably

wrong, but rather “it must strike a cord of wrong with the force

of a five-week-old, unrefrigerated dead fish.”      United States v.

French, 38 M.J. 420, 425 (C.M.A. 1994)(quoting Parts & Electric

Motors Inc. v. Sterling Electric, Inc., 866 F.2d 228, 233 (7th

Cir. 1988)).

       At a session pursuant to Article 39(a), Uniform Code of

Military Justice [hereinafter UCMJ], 10 U.S.C. 839(a) (2000),

the trial counsel laid a foundation for Mrs. Byrd’s opinions by

establishing that she had known Appellant for fourteen years and

had been married to him for eight.       Additionally, Mrs. Byrd was

familiar with Appellant’s handwriting from checks, letters, and

other documents.   At the Article 39(a) session, the judge

overruled the defense’s objection, based on M.R.E. 403 and

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United States v. Byrd, No. 03-0561/AR

speculation, to Mrs. Byrd’s opinion.    Nevertheless, prior to

admitting her opinion at trial, the trial counsel laid an

additional foundation by admitting and playing the taped

conversations from the answering machines.   Additionally, the

trial counsel selected only the passages highlighted and

mentioned below.

     Prior to the testimony concerning these passages, the

prosecution, without defense objection, played a number of

messages left by Appellant on his wife’s answering machine.

During these conversations, he stated:

     If my daughter wants that furniture, she can have it.
     I’m not getting furniture for you. I’m getting it for
     my daughter. ’cause I’m not throwing smoke up
     nobody’s butt. I’m dead serious. You need to get
     with me. Trust me. Or say bye bye to the furniture.

     I want to be sure that you’re – you’re still good to
     go. No matter what you feel, it’s – the bottom line
     is, I need you as much as I think you need me. So
     don’t get personnel [sic]. Let’s just stick with what
     we need to do to get things done.

These taped messages from Appellant provided not only a factual

context for many of Appellant’s written remarks, but also

evidenced a level of spousal and familial communication that,

over a period of 8-14 years, was certainly sufficient foundation

for the opinions Mrs. Byrd expressed on the stand.

     Moreover, Appellant evinced a tendency to speak in cryptic,

obfuscatory terms.   A majority of courts permit a witness to

interpret “coded or ‘code-like’ conversations.”   United States

v. Dicker, 853 F.2d 1103, 1108-09 (3d Cir. 1988).    Appellant was

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United States v. Byrd, No. 03-0561/AR

clearly trying to convey a deeper meaning via suggestion,

oblique reference, and innuendo.       Indeed, this is a case of a

husband not speaking in plain terms, but coded language.      Who

best to interpret what he means than a wife who has known him

for several years?   It reminds me of the 1945 German request for

the surrender of Bastogne when the 101st Airborne Division

Commanding General said, “Nuts.”       I suppose we could ask the

people who knew the General what “nuts” meant.      Would that be

admissible?   That is what this case is about.     In short, to the

extent that a witness had sufficient familiarity with

Appellant’s communicative form, the military judge correctly

ruled that it would be helpful to the members to have that

witness explain what Appellant was likely talking about in his

letters.

     The tape and its foundation were heard by the members

before they heard Mrs. Byrd’s opinion on the letters (which had

been admitted without objection just before the tape played).

Thus, by the time the questioned opinion came before the

members, there was a much greater foundation than there had been

in the Article 39(a) session.   After the members heard the tape,

but before they heard her opinions on the letters, Mrs. Byrd

gave her opinion on what other passages on the tape meant.      Some

of these cover the same subject matter as the letters.

     Mrs. Byrd’s testimony, in total, added significant detail

to the factual setting against which her opinions were set

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United States v. Byrd, No. 03-0561/AR

before the members, and reinforced a level of familiarity with

her husband’s communicative habits consistent with a lay opinion

under M.R.E. 701.

     Before hearing the questioned opinions, the members also

heard Mrs. Byrd testify to the reasonable inferences that could

be drawn from the taped telephone messages from Appellant which

were similar in meaning to the letters and issue in this case.

She testified that Appellant had “kind of used the furniture

almost like a bargaining tool.”   After hearing the tape, Mrs.

Byrd explained, over objection, Appellant’s vague references to

the furniture, by saying, “I took it that he had called Helig

Meyers and told them to come pick up the furniture and that

[A.B.] was the only one that was going to be able to decide if

we were going to keep the furniture” and “if she didn’t keep

saying . . . that the abuse didn’t happen, then he was going to

have them come pick up the furniture.”   Explaining Appellant’s

taped remark that “if you ever do anything for me on Thursday

morning, you can take me up there with A.B.”   Mrs. Byrd said,

without objection, that A.B. was to testify at a grand jury

hearing on Thursday and Appellant was asking to ride along back

to Cadiz, Kentucky.   When asked to explain Appellant’s taped

remark that he “needs to get some answers to some things,” Mrs.

Byrd testified, without objection, that that meant their

“relationship, the divorce, how we were going to testify at the



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United States v. Byrd, No. 03-0561/AR

[Article 39(a)] hearing.”    She felt that “he was laying the

choice at the feet of a child.”

     Mrs. Byrd testified that “since the furniture was in his

name and not in mine, even thought [sic] I was making the

payments, they could come take it out anytime he called.”     Mrs.

Byrd testified that she had known Appellant 13-14 years and had

been married to him for 8.   After getting married, they had

lived at Fort Sill, Baumholder, Huntsville, and Cadiz.      Mrs.

Byrd lived in Huntsville alone for nine months while Appellant

was in Bosnia.

     As to each passage the judge admitted, I offer the

following views.

     Passage One

     I agree with the majority that “Appellant’s meaning in this

passage is unclear,” but only to someone who did not know him

over a period of time and had not engaged in other conversations

with him.   Mrs. Byrd had already testified that Appellant was

the primary breadwinner and controlled the family funds.     And if

A.B. didn’t testify his way, the family would suffer

economically.    That is exactly what this passage meant.   Thus,

her testimony was admissible on that point and satisfied all

three requirements of M.R.E. 701.

     Passage Two

     The same rationale applies for the admission of her

testimony concerning this passage.    It is clear that he would be

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United States v. Byrd, No. 03-0561/AR

“unable to help financially,” meaning that if she wanted

financial help, A.B. should not testify as to what she has been

telling the investigators.

     Passage Three

     As to this passage, it is permissible for the wife to say,

or interpret this passage to mean, that he is going to go to

prison unless the family helps him -- again satisfying all three

requirements of M.R.E. 701.   The judge’s ruling is not an abuse

of discretion.   The language as to this passage, “she’s going to

stick by me,” and in court say it didn’t happen, was consistent

with her other testimony.    She had already testified that

Appellant had at least implied that he wanted A.B. to testify

favorably for him.   Thus, this evidence was already present, and

it was not error to repeat this testimony.

     Passage Five

     This passage was helpful to the factfinders because Mrs.

Byrd began her testimony on direct examination by describing

Appellant’s admission to her in the car at Fort Campbell.

Because there is nothing new here about which she had not

already testified, there could be no error.

     Passage Six

     Again, this showed Mrs. Byrd’s keen insight in interpreting

Appellant’s reference to making $15 a month for the rest of his

life as an intimation that he would no longer be able to support

the family if they did not testify favorably.

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United States v. Byrd, No. 03-0561/AR

     Passage Seven

     Mrs. Byrd’s opinion that Appellant is referring to

counseling is benign and irrelevant.    What hurts Appellant is

Mrs. Byrd’s recitation of his admission at the counseling

session which is admissible in its own right under M.R.E.

801(d)(2), and thus is not error.

     Passage Eight

     The prosecutor’s question to Mrs. Byrd was, “[W]hy would he

be in prison?”   Mrs. Byrd answered, “[I]f he got found guilty of

the charges . . . .”   This statement was both harmless and

irrelevant under the circumstances.

     For these reasons, I concur only in the result of the lead

opinion.




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