UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                        CAMPANELLA, CELTNIEKS, and PENLAND
                              Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                          Specialist LAURO P. FRANCISCO
                            United States Army, Appellant

                                      ARMY 20140541

                         Headquarters, 25th Infantry Division
                      David Conn, Military Judge (arraignment)
                     James W. Herring, Jr., Military Judge (trial)
                    Colonel Mark A. Bridges, Staff Judge Advocate

For Appellant: Lieutenant Colonel Jonathan F. Potter, JA; Major Christopher D.
Coleman, JA; Captain Joshua G. Grubaugh, JA (on brief).

For Appellee: Lieutenant Colonel A.G. Courie, III, JA; Major Anne C. Hsieh, JA
(on brief).


                                     13 December 2016

                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

CAMPANELLA, Senior Judge:

       In this case, we assume a law enforcement officer’s opinion as to appellant’s
truthfulness, offered during direct and re-direct examination, to be impermissible,
but find no material prejudice to appellant’s substantial rights. We further find that
a similar opinion offered by the same law enforcement officer as to appellant’s
truthfulness on cross-examination, to be the result of invited error, of which
appellant may not now complain. We also find that, even assuming we were to
consider the latter not to be the result of invited error, the law enforcement officer’s
opinion does not materially prejudice appellant’s substantial rights.

       A panel of military officers sitting as a general court-martial convicted
appellant, contrary to his pleas, of one specification of aggravated assault and one
specification of assault consummated by battery, in violation of Article 128,
Uniform Code of Military Justice, 10 U.S.C. § 928 (2012) [hereinafter UCMJ]. The
FRANCISCO–ARMY 20140541

panel sentenced appellant to a bad-conduct discharge, confinement for thirty months,
forfeiture of all pay and allowances, and reduction to the grade of E-1. The
convening authority approved only so much of the sentence as provided for a bad-
conduct discharge, confinement for twenty-nine months, forfeiture of all pay and
allowances, and reduction to E-1. The convening authority also credited appellant
with sixty days of confinement credit.

      We have reviewed this case pursuant to Article 66, UCMJ. Appellant asserts
two assignments of error. We find one issue merits discussion but no relief.

                                  BACKGROUND

      On 18 May 2013, appellant and his boyfriend, Specialist (SPC) GM, went out
drinking in Honolulu. Around 0100 in the morning, as SPC GM tried to get
appellant to end the evening outing, the two began arguing in the city streets. The
argument culminated when appellant struck SPC GM in the head knocking him
unconscious. Appellant then left the area–leaving SPC GM lying on the ground.
When SPC GM awakened, he unsuccessfully searched for appellant in the
surrounding neighborhood and then returned to the home where the two were
housesitting for a friend. Appellant was not there.

       In the morning, appellant made contact with SPC GM telephonically and
requested he pick appellant up and bring him home. Specialist GM obliged. Once
back at the house, appellant told SPC GM he spent the night with another man–
which led to another heated argument in the kitchen. During the fight, appellant
grabbed a kitchen knife and stabbed SPC GM twice in the abdomen. Specialist GM
took his shirt off and used it to apply pressure to his abdomen in an attempt to stop
the bleeding. Appellant then drove SPC GM to the hospital on post where SPC GM
received medical care.

       While at the hospital, appellant told the Honolulu police that SPC GM was
attacked by three unknown assailants at the nearby McDonald’s parking lot while
appellant was sitting inside the car and SPC GM was standing outside the vehicle.
Appellant asserted the assailants ran off when he got out of the car and confronted
them.

      The following day, in the presence of appellant, Detective MP interviewed
SPC GM who told a story consistent with the story appellant had provided
authorities.

      Based on these interviews, Detective MP looked for physical evidence of
blood in the parking lot. She found none. She quickly obtained the surveillance
video footage from a nearby shop, which would have captured the area where
appellant described the events to have taken place. Detective MP carefully viewed



                                          2
FRANCISCO–ARMY 20140541

over twelve hours of video and found no one on the tape recording matching the
description given by appellant and no one running from the area. She then
canvassed the area to find possible witnesses who may have seen the events taking
place. Again, she found none. Finding nothing to corroborate their story, Detective
MP decided to re-interview appellant and SPC GM.

                                Direct Examination

        At appellant’s court-martial, Detective MP explained on direct examination
her attempt to corroborate appellant’s story by looking for physical evidence, video
surveillance evidence, or eyewitnesses. After finding no corroborating evidence, she
testified she found it necessary to re-interview appellant. The direct examination
proceeded as follows:

            TC: After you watched the [surveillance] video how did
            the investigation turn?

            WIT: I knew that they weren’t telling me the truth. I
            didn’t know what they were not telling the truth about but
            I went and scheduled an interview to re-interview
            [appellant] and at this time he became a suspect in my
            eyes and so did [SPC GM] before [sic] false reporting to
            us. And so I scheduled an interview for [appellant], I
            believe the day after I saw the video, the morning after.

            TC: And what did you do in that interview?

            WIT: I read him his warning of constitutional rights, he
            waived his rights, provided a statement to me. I got a
            more detailed statement from him regarding the night
            before all the way up to the incident and then I began
            confronting him about the inconsistencies in the stories.

                                Cross-Examination

      On cross-examination, Detective MP testified as follows:

            DC: You stated that you knew that they were lying about
            something but you didn’t know what?

            WIT: Yes.

            DC: And those inconsistencies that you testified [sic] on
            direct, those were the only consistencies?



                                         3
FRANCISCO–ARMY 20140541

         WIT: Yes.

         ...

         DC: During [appellant’s] second interview with you he
         told you that he was telling the truth 12 times?

         WIT: I didn’t count.

         DC: You confronted him and told him that he wasn’t
         telling the truth?

         WIT: Yes.

         DC: Then he replied to you each time that it was the
         truth?

         WIT: Yes.

         DC: So he never backed away from his story, correct?

         WIT: Correct.

         DC: And you stated that he started to become emotional?

         WIT: Yes.

         DC: But isn’t it true by that time you and another officer
         had interrogated him pretty ineptly?

         WIT: I don’t think it was.

         DC: You told him that there was a video of the crime
         scene, correct?

         WIT: Correct.

         DC: That showed nothing?

         WIT: Right.

         DC: You asked him if he wanted to call his chain of
         command, correct?




                                      4
FRANCISCO–ARMY 20140541

             WIT: I think the other sergeant did, yes.

             DC: And at that point that’s when [appellant] began not
             to want to testify anymore, correct?

             WIT: I also–it was more–I don’t know if it was like drugs
             or prostitution, but I was like did it come from a drug deal
             or prostitution or something and he was like “no” and then
             you could kind of tell that that was a real “no” versus
             when he was saying that he was telling the truth. It
             looked, it was my perception of course, it looked like it
             was a fake “I’m telling the truth.”

             DC: And so it was after you had confronted him with a
             series of things?

             WIT: Yes.

                               Re-direct Examination

      On re-direct examination, the trial counsel proceeded as follows:

             TC: And so based on your experience as a detective and
             your experience investigating these crimes what is the lack
             of individual [sic] in that camera tell you?

             WIT: That somebody was lying.

             TC: They were lying about what?

             WIT: About saying something happened that didn’t
             happen there.

       Defense counsel did not object to Detective MPs testimony at trial on direct
or re-direct examination.

                              LAW AND ANALYSIS

       We review a military judge’s ruling to admit or exclude evidence for an abuse
of discretion. United States v. White, 69 M.J. 236, 239 (C.A.A.F. 2010). Where an
appellant did not preserve an issue by making a timely objection, that error will be
forfeited in the absence of plain error. United States v. Knapp, 73 M.J. 33, 36
(C.A.A.F. 2014) (internal citations omitted). We review allegations of plain error de
novo. United States v. Brooks, 64 M.J. 325, 328 (C.A.A.F. 2007). Under a plain



                                          5
FRANCISCO–ARMY 20140541

error analysis, in a case of non-Constitutional error, appellant has the burden of
proving: “(1) an error was committed; (2) the error was plain, clear, or obvious; and
(3) the error resulted in material prejudice to a substantial right.” United States v.
Maynard, 66 M.J. 242, 244 (C.A.A.F. 2008) (internal citations and quotation marks
omitted). The United States Supreme Court has defined error as “[d]eviation from a
legal rule . . . unless the rule has been waived.” United States v. Olano, 507 U.S.
725, 732-33 (1993).

       Where relevant, Military Rule of Evidence [hereinafter Mil. R. Evid.] 608
permits a witness to render testimony in the form of an opinion on another witness’s
character for truthfulness. A witness cannot, however, provide “human lie detector”
testimony, defined as “an opinion as to whether the person was truthful in making a
specific statement regarding a fact at issue in the case.” United States v. Kasper, 58
M.J. 314, 315 (C.A.A.F. 2003). Such testimony exceeds the scope of any witness’
expertise, violates the limits on the admissibility of character evidence found in Mil.
R. Evid. 608(a) and encroaches into the exclusive province of the panel to determine
the credibility of witnesses. Id. See also Brooks, 64 M.J. at 328 n.3.

       Even if there is error in the admission of such testimony, reversal of the
conviction is not required unless there is a finding of material prejudice to an
accused’s substantial right. Such prejudice results when there is “undue influence
on a jury’s role in determining the ultimate facts in the case.” United States v.
Birdsall, 47 M.J. 404, 411 (C.A.A.F. 1998).

       We evaluate the challenged testimony in context to determine if the witness’s
opinion amounts to prejudicial error. See United States v. Eggen, 51 M.J. 159, 161
(C.A.A.F. 1999). We look to several nonexclusive factors to assess whether “human
lie detector” testimony has been offered and, if it has, its prejudicial impact: (1) the
role of the government counsel in initiating or furthering objectionable testimony
(Kasper, 58 M.J. at 316); (2) the role of the defense counsel, particularly if it
appears the defense initiated the testimony for strategic reasons (United States v.
Schlamer, 52 M.J. 80, 86 (C.A.A.F. 1999)); (3) the defense’s failure to object
(United States v. Halford, 50 M.J. 402, 404 (C.A.A.F. 1999)) or request cautionary
instructions (Kasper, 58 M.J. at 319); (4) whether the witness has been asked for
specific conclusions or their opinion about the truth or falsity of another’s
statements or allegations, or about whether a crime occurred (United States v.
Anderson, 51 M.J. 145, 151 (C.A.A.F. 1999); (5) whether the testimony in question
is on a central or peripheral matter (Kasper, 58 M.J. at 320; United States v.
Robbins, 52 M.J. 455, 458 (C.A.A.F. 2000); Birdsall, 47 M.J. at 410); (6) whether
the trial was before members or by military judge alone (Robbins, 52 M.J. at 458;
United States v. Raya, 45 M.J. 251, 253-54 (C.A.A.F. 1996)); and (7) the remedial
action, if any, taken by the military judge (Eggen, 51 M.J. at 161).




                                           6
FRANCISCO–ARMY 20140541

       It is “the ‘exclusive province of the court members to determine the
credibility of witnesses.’” United States v. Knapp, 73 M.J. 33, 34 (C.A.A.F. 2014)
(quoting Brooks, 64 M.J. at 328 n.3). Our superior court “has been resolute in
rejecting the admissibility of so-called human lie detector testimony, which [it]
described as: ‘an opinion as to whether the person was truthful in making a specific
statement regarding a fact at issue in the case.’” Brooks, 64 M.J. at 328 (quoting
Kasper, 58 M.J. at 315). “If a witness offers human lie detector testimony, the
military judge must issue prompt cautionary instructions to ensure that the members
do not make improper use of such testimony.” Kasper, 58 M.J. at 315.

       Since defense counsel did not object or request an instruction, the issue is
forfeited absent plain error. See United States v. Powell, 49 M.J. 460, 463 (C.A.A.F.
1998).

                                Direct Examination

      Appellant contends the trial counsel elicited human lie detector testimony
from Detective MP. From our perspective, this is a close call as to whether
admission of this evidence constitutes plain and obvious error.

       Detective MP’s testimony: “I knew they weren’t telling me the truth,” arose
in the context of explaining the inconsistencies and contradictions in appellant’s
story and intuitively would have raised questions for the panel about appellant’s
veracity. The trial counsel did not ask whether Detective MP believed appellant was
telling the truth. The testimony focused on Detective MP’s development of the
investigation and objective facts. We will assume, without deciding, that on direct
examination Detective MP should have stopped short of providing her ultimate
opinion regarding the veracity of appellant and that this resulted in a plain and
obvious error.

       Detective MP’s statements regarding appellant’s truthfulness could be
construed as providing her opinion on guilt or innocence and thus became
objectionable “human lie detector testimony.” As an opinion of the appellant’s
truthfulness, it could usurp the members’ exclusive function of the panel members to
weigh evidence and determine credibility themselves. See Birdsall, 47 M.J. at 410.

      When “human lie detector” testimony is offered, a military judge must issue
“prompt cautionary instructions” to the members. Kasper, 58 M.J. at 315. Here,
defense counsel did not object to the evidence and the military judge did not provide




                                          7
FRANCISCO–ARMY 20140541

an instruction. *

       Our analysis does not, however, end there. The remaining issue is whether
the appellant’s substantial rights were materially prejudiced by the absence of such
an instruction. UCMJ art. 59(a). “Prejudice results when there is ‘undue influence
on a jury’s role in determining the ultimate facts in the case.’” United States v.
Mullins, 69 M.J. 113, 117 (C.A.A.F. 2010) (quoting Birdsall, 47 M.J. at 411). Our
superior court has held no such prejudice exists in human lie detector cases if the
record contains other “corroborating evidence,” which the members could have
relied upon in determining guilt. Id. at 118; cf. Brooks, 64 M.J. at 330. Here, such
evidence exists. In this case, the human lie detector testimony amounted to a small
fraction of Detective MP’s testimony, did not pervade the entire case, nor was it
central to the government’s case. See United States v. Jackson, 74 M.J. 710, 717
(Army Ct. Crim. App. 2015). Based on the circumstances surrounding Detective
MP’s testimony on direct examination focusing on the development of the
investigation, the totality of the evidence presented in the case, and the standard
instructions given, we conclude the lack of a specific cautionary instruction did not
materially prejudice the substantial rights of the appellant. See UCMJ art. 59(a).

                                 Cross-Examination

       During cross-examination, defense counsel tried to elicit from Detective MP
that when appellant was interviewed, appellant was adamant that he was telling the
“truth” about SPC GM being stabbed by three strangers outside the McDonalds.
Consistent with the defense theory that appellant was being truthful, defense counsel
continued to cross-examine Detective MP with questions to support this theory.
After being asked about appellant stopping the interview, Detective MP said
appellant’s assertions of “I’m telling the truth” looked “fake,” when juxtaposed to
other responses that looked truthful. Assuming without deciding that Detective MP
improperly provided human lie detector testimony by opining that appellant’s
assertions of truth looked “fake,” and that such error was plain and obvious, we do
not find reversible error. Here, the introduction of human lie detector evidence at
trial was invited by defense counsel. See United States v. Martin, 75 M.J. 321, 325
(C.A.A.F. 2016). The question of whether defense counsel invited an error at trial is
a question of law, which we review de novo. Martin, 75 M.J. at 325. The invited

*
  Although the military judge did not intervene with an instruction, he did ultimately
and properly instruct the members on their responsibilities. He instructed the panel
that “each of you must resolve the ultimate question of whether the accused is guilty
or not guilty” and that “the final determination as to the weight of the evidence and
the credibility of the witnesses in this case rests solely upon you.” In the absence of
evidence to the contrary, the members are presumed to follow the military judge’s
instructions. United States v. Holt, 33 M.J. 400, 408 (C.M.A. 1991) (citing United
States v. Ricketts, 1 M.J. 78, 82 (C.M.A. 1975)).


                                           8
FRANCISCO–ARMY 20140541

error doctrine prevents a party from “creat[ing] error and then tak[ing] advantage of
a situation of his own making [on appeal].” Eggen, 51 M.J. at 162 (internal
quotation marks omitted). As a result, appellant’s assignment of error fails because
“[i]nvited error does not provide a basis for relief.” Raya, 45 M.J. at 254.
Likewise, on re-direct examination, when Detective MP concluded “someone wasn’t
telling the truth,” trial counsel had gone too far by soliciting this response, but the
defense cross-examination invited this aspect of the government’s re-direct
examination. See Martin, 75 M.J. at 325. Moreover, defense counsel never objected
to the Government’s elicitation of human lie detector testimony.

                                   CONCLUSION

      The approved findings and sentence are correct in law and fact, and no error
prejudicial to the substantial rights of the appellant occurred. Accordingly, the
approved findings and the sentence are AFFIRMED.

      Judge CELTNIEKS and Judge PENLAND concur.
                                        FOR THE
                                        FOR THE COURT:
                                                COURT:



                                        MALCOLM
                                        MALCOLM H.  H. SQUIRES
                                                       SQUIRES,JR.
                                                                JR.
                                        Clerk of Court
                                        Clerk of Court




                                           9
