                          UNITED STATES, Appellee


                                        v.


                Timothy S. WHITNEY, Technical Sergeant
                      U. S. Air Force, Appellant

                                No. 00-0555/AF


                            Crim. App. No. 32807

       United States Court of Appeals for the Armed Forces

                       Argued November 15, 2000

                       Decided September 20, 2001

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

                                    Counsel

For Appellant: Lieutenant Colonel Timothy W. Murphy (argued);
Colonel James R. Wise and Captain Patience E. Schermer (on
brief); Major Thomas R. Uiselt.

For Appellee: Major Mitchel Neurock (argued); Colonel Anthony
P. Dattilo, Lieutenant Colonel Ronald A. Rodgers, and Major
Bryan T. Wheeler (on brief); Lieutenant Colonel William B. Smith
and Major Jennifer R. Rider.

Military Judge:     Robin D. Wamsley


     THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Whitney, No. 00-0555/AF


     Chief Judge CRAWFORD delivered the opinion of the Court.

     A general court-martial composed of officer members

convicted appellant, contrary to his pleas, of rape, forcible

sodomy, assault, assault consummated by battery, and indecent

assault, in violation of Articles 120, 125, 128, and 134,

Uniform Code of Military Justice, 10 USC §§ 920, 925, 928, and

934, respectively.   The convening authority approved the court-

martial’s sentence to a dishonorable discharge, confinement for

7 years, and reduction to the lowest enlisted grade.   The Court

of Criminal Appeals found the simple assault and rape charges to

be multiplicious and dismissed the assault charge.   That court,

in an unpublished opinion, directed that appellant receive 22½

days of credit towards service of his sentence to confinement

for prior punishment he received under Article 15, UCMJ, 10 USC

§ 815, for the indecent assault for which he was convicted.

Appellant’s pro se petitions to the Court of Criminal Appeals

for a new trial and reconsideration of its initial decision were

denied.

     We granted review on the following issue:

          WHETHER THE MILITARY JUDGE COMMITTED ERROR WHEN,
          CONTRARY TO MILITARY RULE OF EVIDENCE 301(f)(3),
          HE ADMITTED TESTIMONY THAT, WHEN QUESTIONED BY
          AN INVESTIGATOR BEFORE TRIAL, APPELLANT ELECTED
          TO REMAIN SILENT AND SUBSEQUENTLY, AFTER DISCOVERING
          THE ERROR, MADE AN INADEQUATE AND UNTIMELY CURATIVE
          INSTRUCTION.




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United States v. Whitney, No. 00-0555/AF


We hold that the investigator’s comment on appellant’s silence,

in violation of Mil.R.Evid. 301(f)(3), Manual for Courts-

Martial, United States (2000 ed.),* was error, but it was

harmless beyond a reasonable doubt.

                                    FACTS

      Appellant was the second highest ranking member of a 44-

person team performing temporary duty at Sembach Air Base,

Germany, in September 1996.       During this temporary duty, he and

Airman First Class D, the victim of the rape, sodomy, and

assault consummated by battery, were billeted in rooms on the

second floor of a building.       On September 21, 1996, Airman First

Class D was returning to her room after performing her duties.

On the way to her room, she encountered appellant, who was

standing in the hallway holding a beer.          Appellant asked Airman

First Class D to come into his room.         She complied because she

thought she was going to receive some corrective counseling.

Once she was in the room, appellant locked the door, turned out

the lights, and proceeded to rape and sodomize her while holding

a knife at her throat.

      On November 14, 1996, appellant underwent a polygraph

examination conducted by Special Agent (SA) Hunter, Air Force

Office of Special Investigations (AFOSI).          Appellant’s military



*
  All Manual provisions are identical to the version in effect at the time of
appellant’s trial.


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United States v. Whitney, No. 00-0555/AF


defense counsel was present during the examination.    For this

particular examination, military defense counsel and the AFOSI

specifically agreed that appellant would waive his rights under

Article 31(b), UCMJ, 10 USC § 831(b), and could be questioned

during the pre-polygraph interview as well as during the test

itself.   The parties agreed that there would be no post-

polygraph interview.

     At trial, SA Hunter was called as a prosecution witness.

Without differentiating between the pre-polygraph interview and

the post-polygraph interview, SA Hunter related appellant’s

version of what occurred on the night of September 21, 1996.      In

short, appellant’s version was that the victim was the sexually

aggressive party, and the two had engaged in consensual sexual

intercourse and consensual sodomy.     The following questions and

answers then took place:

          TC: And at the conclusion of the interview, did you
     confront Sergeant Whitney?

           WIT:    Yes, I did.

           TC:    What did you tell him?

          WIT: I told him that I didn’t – did not feel he’d
     been truthful in his answers.

           Q:    What did Sergeant Whitney tell you?

           A:    He did not say anything.

          Q: Did he make –- after this, did the interview
     continue?



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United States v. Whitney, No. 00-0555/AF


          A: I escorted him to the door to exit; and on the way
     out, he extended his hand and thanked me for doing a good
     job.

          TC:    Thank you.

     Trial defense counsel did not immediately object to this

line of questioning because this testimony, to the casual

observer, referred to the pre-polygraph interview.    After the

questions by the prosecution, defense counsel clarified the

direct examination.    Following further examination, two court

members asked virtually identical questions:    “Why do you feel

TSgt Whitney was not truthful during the interview?”    When the

trial counsel registered a written objection to the questions, a

session followed under Article 39(a), UCMJ, 10 USC § 839(a).

     After learning at the Article 39(a) session that SA

Hunter’s opinion as to appellant’s untruthfulness was based on

his “evaluation” of the polygraph examination, the judge

sustained the objection.      See United States v. Scheffer, 523

U.S. 303 (1998).    Based on the witness’s response, the judge

said he would instruct the members to disregard that portion of

the testimony.

     At the request of defense counsel, who thought it would be

better to clarify SA Hunter’s normal interview procedure for the

court, the military judge recalled the members and the following

ensued:

     Q:   Special Agent Hunter, you testified that you stated


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United States v. Whitney, No. 00-0555/AF


           to Tech Sergeant Whitney that you felt he was not
           being truthful, is that correct?

     A:      Yes, sir, I did.

     Q:      Is it your normal practice to make that statement to
             the subject of a subject interview?

     A:      Yes, sir.

     MJ:     Now, to deal with two other issues. You’re to
             disregard his testimony about the fact that Sergeant
             Whitney didn’t respond to that. That is not
             admissible evidence and I probably should have struck
             it earlier. So, please do disregard that.

             In regards to the questions by Captain Hansen and
             Colonel Walgamott, which is the same question, ‘Why
             did you feel that Tech Sergeant Whitney was not
             truthful during the interview,’ that’s not a
             permissible question. The reason being is
             determination of truth is your realm, and nobody can
             come in here and tell you whether or not someone is
             being truthful. That’s purely up to you to decide.

     PRES:    Okay.

     MJ:     Any other questions by the members?

     (Negative response by all members.)

                                DISCUSSION

     There were two evidentiary errors in this case.     First,

without objection, SA Hunter provided “human lie detector”

testimony.     Second, contrary to Mil.R.Evid. 301(f)(3), SA Hunter

testified that appellant did not respond to the polygrapher’s

challenge that appellant was not being truthful.

     “Human lie detector” testimony is inadmissible.     See, e.g.,

United States v. Birdsall, 47 MJ 404, 410 (1998).     Furthermore,



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United States v. Whitney, No. 00-0555/AF


SA Hunter’s view that appellant was not being truthful reflects

the opinion of a polygrapher and is inadmissible evidence

pursuant to Mil.R.Evid. 707(a).   As soon as he realized the

error, the military judge took two steps to correct the problem.

He recalled the members and, at the request of the defense

counsel, elicited from SA Hunter that Hunter’s challenge to

appellant (that he did not believe him), which precipitated the

unfortunate remark about appellant’s silence, was a routine

statement made to all subjects who had just finished making a

statement.

     To further diminish the importance of SA Hunter’s

testimony, the military judge instructed the members that the

question concerning SA Hunter’s belief about appellant’s honesty

should never have been asked, and it was the members alone who

were the finders of fact and the adjudicators of truth.     By

adding the instruction “. . . determination of truth is your

realm, and nobody can come in here and tell you whether or not

someone is being truthful.   That’s purely up to you to decide,”

the military judge negated any question or inference that SA

Hunter’s opinion was either admissible or material evidence.

     Mil.R.Evid. 301 implements the constitutional and statutory

privilege against self-incrimination.   Rule 301(f)(3) provides

that the “fact that the accused during official questioning and

in exercise of rights under the Fifth Amendment to the


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United States v. Whitney, No. 00-0555/AF


Constitution of the United States or Article 31, remained

silent, refused to answer a certain question, requested counsel,

or requested that the questioning be terminated is inadmissible

against the accused.”

     SA Hunter’s testimony that appellant did not respond to a

challenge to his truthfulness was admitted in violation of Rule

301(f)(3) and was an error of constitutional proportion.    The

military judge, however, endeavored to cure this error by

admonishing the members to disregard this portion of SA Hunter’s

testimony.   The curative measure taken by the military judge in

this case could have been clearer and more forceful.   See United

States v. Garrett, 24 MJ 413, 417 (CMA 1987).   Nonetheless, the

president of the court acknowledged that he understood why two

members’ questions were not being asked, and he understood the

judge’s instruction to disregard testimony about appellant’s

silence.   In the absence of contrary evidence, court members are

presumed to understand and follow the military judge’s

instructions.   United States v. Holt, 33 MJ 400, 408 (CMA 1991);

United States v. Loving, 41 MJ 213, 235 (1994).

     This is a case that involved testimonial error, objection

by counsel, and quick remedial action by the military judge.

Having reviewed the entirety of the evidence, to include the

victim’s credible, persuasive testimony, we are satisfied that

SA Hunter’s “human lie detector” testimony did not have a


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United States v. Whitney, No. 00-0555/AF


substantial influence on the findings.   Kotteakos v. United

States, 328 U.S. 750, 765 (1946). We are also convinced beyond

any reasonable doubt that appellant was not prejudiced by SA

Hunter’s comment about appellant’s silence.

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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United States v. Whitney,    00-0555/AF


BAKER, Judge (concurring):

     I agree with the majority opinion regarding the

remedial actions taken by the military judge in this case.

The military judge effectively performed his duty to ensure

a fair trial by promptly providing clear, curative

instructions in response to SA Hunter’s opinion regarding

appellant’s polygraph examination.    The testimonial error

in this case was harmless, given the weight of the evidence

against appellant, including the testimony of the victim,

the improbability of appellant’s account, and testimony

regarding the victim’s post-rape behavior.

     I write separately to emphasize that Wyrick v. Fields,

459 U.S. 42, 47 (1982), is both sword and shield.    In

Wyrick, the Court concluded that “[d]isconnecting the

polygraph equipment effectuated no significant change in

the character of the interrogation” and, therefore,

Wyrick’s consent to a polygraph interview without counsel

present also constituted consent to the post-polygraph

interview without counsel present.    Essential to the

Court’s finding of waiver in Wyrick was the Court’s

conclusion that Wyrick’s consent was voluntary and knowing,

and that he intelligently waived his right to counsel.

     Wyrick also understood that he had the right to stop

questioning (of any sort) at any time, and this
United States v. Whitney,    00-0555/AF


understanding was reflected in writing, in plain language.

Further, the Court’s holding is limited to a specific

right, the Fifth Amendment right to counsel.    The Court

expressly declined to address the dissent’s argument that

the questioning violated Wyrick’s Sixth Amendment right to

counsel, since those issues were not before the Court.       Id.

at 49.

       As the Court in United States v. Scheffer, 523 U.S.

303, 312 (1998), reminded, Mil.R.Evid. 707, Manual for

Courts-Martial, United States (2000 ed.), is a per se rule

against the introduction of polygraph evidence at courts-

martial.    Further, the Court’s ruling in Scheffer relied in

part on the conclusion that only reliable evidence should

be admitted into evidence, and “there is simply no

consensus that polygraph evidence is reliable.“    Id. at

309.

       For these reasons, and in light of Wyrick, military

judges should take great care to ensure that any waiver of

rights associated with a polygraph examination is

voluntary, knowing, and intelligent, which means among

other things that the accused knows and understands which

rights are being waived.    Military judges and counsel must

also carefully watch the 707 backdoor to ensure, as Judge

Wamsley did in this case, that allusions to polygraph


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United States v. Whitney,   00-0555/AF


examinations are immediately addressed and omitted from

evidence.   In light of the clarity of Scheffer and

Mil.R.Evid. 707, intentional and inadvertent references to

polygraph examinations elicited by counsel should not

occur.




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