                         UNITED STATES, Appellee

                                         v.

        William R. SAVALA, Torpedoman’s Mate Second Class
                       U.S. Navy, Appellant

                                  No. 10-0317
                        Crim. App. No. 200800818

       United States Court of Appeals for the Armed Forces

                         Argued January 11, 2011

                           Decided May 17, 2011

EFFRON, C.J., delivered the opinion of the Court, in which
ERDMANN and RYAN, JJ., joined. STUCKY, J., filed a separate
dissenting opinion in which BAKER, J., joined.


                                     Counsel


For Appellant: Philip D. Cave, Esq. (argued); Major Kirk
Sripinyo, USMC (on brief).

For Appellee: Captain Mark V. Balfantz, USMC (argued); Colonel
Louis J. Puleo, USMC, and Brian K. Keller, Esq. (on brief);
Commander Kimberly D. Hinson, JAGC, USNR.


Military Judges:    David S. Oliver and John Wooldridge




            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Savala, No. 10-0317/NA


    Chief Judge EFFRON delivered the opinion of the Court.

    A general court-martial composed of officer and enlisted

members, convicted Appellant, contrary to his pleas, of

attempted larceny, rape, unlawful entry, and adultery, in

violation of Articles 80, 120, 130, and 134, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. §§ 880, 920, 930, 934 (2006).

The sentence adjudged by the court-martial and approved by the

convening authority included a dishonorable discharge,

confinement for seven years, forfeiture of $898.00 pay per month

for eighty-four months, and reduction to the pay grade of E-1.

United States v. Savala, No. NMCCA 200800818, 2010 CCA LEXIS 9,

at *1, 2010 WL 317687, at *1 (N-M. Ct. Crim. App. Jan. 28, 2010)

(unpublished).

     On Appellant’s petition, we granted review of the following

issue:

          WHETHER THE LOWER COURT ERRED WHEN IT HELD
          THAT THE DENIAL OF APPELLANT’S RIGHT TO
          CROSS-EXAMINE HIS ACCUSER WAS HARMLESS
          BEYOND A REASONABLE DOUBT.

For the reasons set forth below, we conclude that the

restriction on the scope of cross-examination constituted

prejudicial error.




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United States v. Savala, No. 10-0317/NA


            I.    EXCLUSION OF EVIDENCE UNDER M.R.E. 412

     Military Rule of Evidence (M.R.E.) 412 limits the

admissibility of specified forms of evidence in sexual offense

cases.   The rule serves “to protect victims of sexual offenses

from the degrading and embarrassing disclosure of intimate

details of their private lives while preserving the

constitutional rights of the accused to present a defense.”

United States v. Banker, 60 M.J. 216, 219 (C.A.A.F. 2004).

     The present case concerns M.R.E. 412(a), which generally

prohibits the introduction of evidence regarding the alleged

victim’s prior sexual behavior or the victim’s sexual

predisposition.    The rule contains a number of exceptions to the

general prohibition, including a provision for the admissibility

of “evidence the exclusion of which would violate the

constitutional rights of the accused.”    M.R.E. 412(b)(1)(C).

See Banker, 60 M.J. at 221 (noting that this exception

“addresses an accused’s Sixth Amendment right of confrontation

and Fifth Amendment right to a fair trial”).

     The Sixth Amendment right of confrontation includes “the

constitutionally protected right of cross-examination.”    See

Davis v. Alaska, 415 U.S. 308, 316-17 (1974).    The right of

cross-examination includes the opportunity to inquire into

otherwise inadmissible matters if the prosecution, through its

presentation, opens the door to consideration of such matters.


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United States v. Savala, No. 10-0317/NA


See United States v. Moulton, 47 M.J. 227, 228-29 (C.A.A.F.

1997); United States v. Welch, 25 M.J. 23, 26-27 (C.M.A. 1987);

cf. 1 Kenneth S. Broun et al., McCormick on Evidence § 57, at

291 (6th ed. 2006) (discussing judicial approaches to “opening

the door” for otherwise inadmissible evidence).    The right of

confrontation is subject to limitations, including the authority

of the court to restrict the scope of cross-examination to avoid

problems such as harassment, prejudice, confusion of the issues

or repetitive interrogation.   Delaware v. Van Arsdall, 475 U.S.

673, 679 (1986).

     M.R.E. 412 constitutes a rule of exclusion.    Banker, 60

M.J. at 221.   The defense bears the burden of demonstrating the

admissibility of evidence that falls within the category of

otherwise excludable evidence under M.R.E. 412.    Id. at 222.



                      II.   TRIAL PROCEEDINGS

     The present appeal focuses on the evidence pertinent to the

offenses of rape, unlawful entry, and adultery.    Much of the

evidence presented at trial involved matters not in dispute.

The primary differences at trial involved the circumstances of

Appellant’s entry into the barracks room of Seaman ARM and the

ensuing encounter between Appellant and Seaman ARM.

     The granted issue involves two defense motions at trial

under M.R.E. 412.   The defense offered the first motion prior to


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United States v. Savala, No. 10-0317/NA


the introduction of evidence.    The defense offered a second

motion during the prosecution’s case-in-chief at a point where

the defense contended that the prosecution had opened the door

to the evidence at issue.    The military judge denied both

motions.   The Court of Criminal Appeals subsequently ruled that

the military judge erred in the disposition of the second

motion, but treated the error as harmless.    Savala, 2010 CCA

LEXIS 9, at *23-*24, 2010 WL 317687, at *9.

     We begin with background information pertinent to the

decisions by the military judge and the Court of Criminal

Appeals.   Part II.A. sets forth the competing views of the

parties as to the facts with respect to the underlying offenses.

Part II.B. summarizes the first defense motion and ruling by the

military judge.    Part II.C. summarizes the second defense motion

and ruling by the military judge.

           A.   THE COMPETING POSITIONS OF THE PROSECUTION
                AND THE DEFENSE REGARDING THE CHARGED OFFENSES

1.   Events prior to the barracks encounter -- matters not in
     dispute

     On the evening of the incident, Seaman ARM consumed a

substantial number of alcoholic beverages at several different

locations, including two clubs.    Testimony from multiple

witnesses indicated that she was visibly drunk and that her

speech was impaired.    Seaman ARM testified that at some point




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United States v. Savala, No. 10-0317/NA


while at the second club, her perception of her surroundings

began to get hazy.

        Appellant and his friend Seaman Townsel each testified that

they observed Seaman ARM in the second club.    Appellant

testified that he observed Seaman ARM drinking.    He had not

previously encountered her, and did not speak to her in the

club.    Seaman Townsel testified that he had met Seaman ARM the

previous week, and that he spoke to her briefly in the club on

the night in question.

        Seaman Townsel testified that at some point during the

visit to the second club, Seaman ARM fell onto a table, and her

friends assisted her in getting up.    Eventually Seaman ARM and

several friends left the second club and went to a karaoke bar.

Afterwards, they returned to the base.    One of those friends

testified that she stumbled as she approached the door to her

room at about 1:30 a.m., while another friend testified that

they returned from the karaoke bar at 4:30 a.m.

        Appellant and Seaman Townsel returned to the barracks

sometime after 5:00 a.m.    As they arrived at the barracks, the

two men discussed Seaman ARM.    At the end of the discussion,

Appellant suggested that they visit her room.    The full details

of the conversation do not appear on the record.    Appellant

testified that he was left with the impression that Seaman ARM

“might be willing to have sexual intercourse.”    Seaman Townsel,


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United States v. Savala, No. 10-0317/NA


who knew where Seaman ARM lived, led Appellant to her room.

Seaman Townsel remained in a nearby common area while Appellant

knocked on the door.

2.      Matters in dispute

        a.   The testimony of Seaman Townsel and Seaman ARM
             concerning the events in the room

        During the prosecution’s case-in-chief, Seaman Townsel

testified that when they approached the room, Appellant

suggested that Seaman Townsel knock on Seaman ARM’s door.

Seaman Townsel declined to do so, and sat in a nearby common

area while Appellant knocked on the door.     According to Townsel,

after knocking on the door Appellant remarked that the door was

open.    While the door was open, Townsel observed that the room

was dark.     Townsel came to the door and urged Appellant to leave

with him.     Appellant closed the door, and they both departed.

Townsel testified that they returned to their rooms, and he had

no further knowledge of Appellant’s activities that morning.

        Seaman ARM testified that she left the second club and had

no memory of returning to her room or getting into bed.       She

next recalled being in her bed, on her back, looking at the

chest of a person raping her.     She did not recognize the person

but could tell that he had tanned or darker skin.     She testified

that after her initial confusion upon waking, she said “no” and

tried to push the person away.     She did not recall what happened



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United States v. Savala, No. 10-0317/NA


at that point.    She testified that she subsequently woke up in

the shower with the water running.     After showering, she

returned to her bed and then slept until 2:30 p.m. that

afternoon.

     After awakening in the afternoon, Seaman ARM went to an

emergency room, where she received medical treatment.    She did

not report the incident as a rape at that time.    On the

following day, after speaking with a fellow airman and her

mother, she returned to the hospital and reported the incident

as a rape.    At that point, she received a full sexual assault

and rape test (SART).    She also provided authorities with her

bedding and a hat she had found in her room.    Subsequent

forensic analysis connected DNA from the bedding to Appellant.

In addition, investigators determined that the door to Seaman

ARM’s room did not lock properly as a result of a broken locking

mechanism.

     b.      Appellant’s testimony concerning the events in the
             room

     The defense presented the court-martial panel with

different evidence regarding the events in the room.    Appellant

testified that he knocked and Seaman ARM opened the door.     He

introduced himself as a friend of Seaman Townsel, “the guy that

she met the previous week at” the club.    According to Appellant,

Seaman ARM acknowledged having met Seaman Townsel, but stated



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United States v. Savala, No. 10-0317/NA


that “she wasn’t really interested in him.”    After more

conversation, she expressed interest in Appellant and noted that

he was “cute.”    Appellant asked if he could come back and Seaman

ARM said yes.    He then left her room, and Appellant and Seaman

Townsel then proceeded to their perspective rooms.

     Appellant testified that after he “freshened up” in his

room, he returned alone to Seaman ARM’s room.    After entering

the room, Appellant and Seaman ARM engaged in a fifteen- to

twenty-minute conversation.    During the conversation Seaman ARM

began to touch Appellant’s arm and then legs, which eventually

led to kissing and sexual intercourse.    According to Appellant,

at some point during intercourse Seaman ARM began to act

strangely and told Appellant to stop.    After Appellant stopped,

Seaman ARM “got up, [and] ran to the bathroom,” which was

located across the hall from her room.    Appellant dressed

himself, and went across the hall towards the bathroom.      He

testified that he could hear the shower running, but when he

knocked on the door, there was no answer.    Appellant then

returned to his own room.


          B.     THE FIRST DEFENSE MOTION UNDER M.R.E. 412

     Prior to the presentation of evidence on the merits,

defense counsel provided notice under M.R.E. 412(c)(1) that the

defense intended to offer evidence at trial subject to M.R.E.



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United States v. Savala, No. 10-0317/NA

412.   Pursuant to M.R.E. 412(c)(2), the military judge conducted

a hearing on the motion under Article 39(a), UCMJ, 10 U.S.C. §

839(a) (2006).   During the hearing, defense counsel contended

that the evidence proffered in connection with the motion

constituted proof of an incident in which Seaman ARM had

fabricated an allegation of rape in the aftermath of sexual

activity in order to protect her reputation.

       The prior incident took place in Virginia Beach a year

before the events leading to the charges in the present case.

The proffered evidence included a police report of the prior

incident, a sworn statement provided by Seaman ARM to the

investigators in the present case, and unofficial statements

made by the alleged perpetrator in the prior incident.

       The police report concerning the prior incident noted that

Seaman ARM had been drinking at a private party, and that the

last thing she remembered before the alleged incident was

leaving the party at 3:30 a.m.   The next thing she remembered

was being in her car, half dressed, outside of a gas station,

with an open condom in the back seat.   She did not remember

having sexual intercourse, but she believed that sex had

occurred.   The next day, she reported the event as a sexual

assault and provided police with the phone number of a person

she identified as having accompanied her when she left the

party.   When the police interviewed the suspect, he admitted to


                                 10
United States v. Savala, No. 10-0317/NA

having consensual sexual intercourse with Seaman ARM.    He noted

that she had been intoxicated and generally flirtatious when he

arrived at the party and that she had initiated sexual contact

with him while in her car.   According to the police report, when

the investigators explained the suspect’s version to Seaman ARM,

“she did not doubt that it could have happened that way, she

just does not remember.”   The case disposition recorded the

report of sexual assault from Seaman ARM as “unfounded.”

     During the investigation of the current case, Seaman ARM

made a sworn statement to investigators.    In response to a

question of whether she had ever been sexually assaulted Seaman

ARM stated, “Yes . . . About a year ago . . . . I was sexually

assaulted by this guy named P[].”     (First ellipsis in original.)

She added, “I told my dad that I needed to go to the hospital

and my sister took me.    The hospital staff called [the] Virginia

Beach Police Department.   Police responded and I filed a

complaint against P[].”    When asked whether that case had gone

to trial, Seaman ARM stated, “Charges were never filed because

they told me it was a ‘he said she said’ case.”

     According to the defense proffer, the individual accused of

the prior incident believed that Seaman ARM had fabricated the

rape charge to divert attention away from the fact that she was

found by police, half dressed, in a convenience store parking

lot after a night of drinking and drug use.


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United States v. Savala, No. 10-0317/NA

     During the Article 39(a) hearing, trial counsel stated

that, “The government opposes all mention of this Virginia Beach

incident.”      Counsel argued that the incident was irrelevant to

the current case.

     Relying on United States v. McElhaney, 54 M.J. 120

(C.A.A.F. 2000), the military judge concluded that the proffered

evidence would require litigation of collateral issues and any

probative value of the evidence would be outweighed by its

prejudicial effect.     The military judge ruled that mention of

the Virginia Beach incident would not be allowed during the

substantive portion of trial, but reserved the issue of whether

it would be allowed during any possible sentencing phase.

           C.    THE SECOND DEFENSE MOTION UNDER M.R.E. 412

     During the Government’s case-in-chief, the prosecution

asked Seaman ARM about her delay in reporting the charged

incident as a rape.     Seaman ARM replied that she did not “want

anybody to know,” adding that she “felt really kind of disgusted

and [she] just didn’t think that people would believe [her].”

The prosecution then asked, “Why didn’t you think people would

believe you.”     Seaman ARM responded, “Because it had actually

happened to me before and it didn’t get resolved back in the

states.”

     In a subsequent closed session under Article 39(a), UCMJ,

the defense contended that the Government’s question to Seaman


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United States v. Savala, No. 10-0317/NA

ARM about delayed reporting, which she addressed by referring to

the prior incident, had opened the door to cross-examination of

Seaman ARM about the earlier incident.    Defense counsel

contended that once the prosecution relied on the prior incident

as the explanation for Seaman ARM’s delay in reporting the

incident as a rape, the defense was “now entitled to challenge

that and to challenge the credibility of that reason by

exploring the circumstances of the prior false allegation.”

     In response, the prosecution contended that the examination

of Seaman ARM had not opened the door to such evidence, and

that, in any case the probative value of the evidence was

outweighed by the danger of unfair prejudice.    The military

judge then ruled against the defense, stating:

     Your request to go into it is denied.

     The military judge determines on the basis of the
     hearing, the previous hearing and during the course
     today, that the evidence that the accused seeks to
     offer is not relevant for the purpose of this session
     and that the probative value of such evidence
     outweighs [sic] the danger of unfair prejudice to the
     alleged victim’s privacy.

     And, further, specifically for the purpose in which it
     arose has nothing to do with 412. There is no
     relevancy of alleged victim’s sexual behavior, sexual
     predisposition, which is prohibited under 412.

     And, finally, the evidence, the exclusion of which
     does not violate any constitutional rights of the
     accused to cross-examine those matters when you weigh
     the balancing test of all the evidence together.




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United States v. Savala, No. 10-0317/NA

     The defense counsel inquired as to the scope of the

military judge’s ruling, asking, “So I can’t challenge the fact

that she is already educated on how to falsify a presentation in

a sexual assault examination, for example, based on prior

experience?”   The military judge responded, “That’s correct.”

In a further inquiry, defense counsel asked whether the military

judge’s ruling meant that he could not “challenge her

credibility based on the facts and circumstances and lies that

she made the first time?”   The inquiry led to the following

colloquy between the military judge and defense counsel:

     MJ: Let me back up and just say I don’t get to
     explain my rulings, counselor. I ruled, so –- and I
     don’t get to explain and tell you how to try your
     case.

     Anything else?

     CC: Sir, I do that because I want to be careful that
     I’m doing things correctly.

     MJ: You understand that you cannot get into any
     sexual –- you cannot get into any matters under 412.

     During the ensuing cross-examination of Seaman ARM, defense

asked various questions probing Seaman ARM’s motive and

propensity to lie, including making false statements on various

government forms.   Pursuant to the ruling by the military judge

under M.R.E. 412, defense counsel did not ask any questions

regarding the earlier incident involving Seaman ARM’s prior

allegation of sexual assault.



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United States v. Savala, No. 10-0317/NA

               III.   REVIEW IN THE COURT OF CRIMINAL APPEALS

        On appeal, the Court of Criminal Appeals discussed the two

defense motions under M.R.E. 412.         The court concluded that the

military judge erred in denying the second motion, irrespective

of the merits of the first motion, because “the evidence should

have been admitted when the Government opened the door to the

evidence at trial.”       2010 CCA LEXIS 9, at *14, 2010 WL 317687,

at *5.

        After finding error, the court determined that the error

was harmless beyond a reasonable doubt, citing the “overwhelming

evidence of the appellant’s guilt.”        Id. at *17, 2010 WL 317687,

at *7.    The court noted that “the testimony of an alleged victim

is often the critical component of a successful prosecution for

rape,” but concluded that the present case required a different

view.    Id. at *18, 2010 WL 317687, at *7.       The court focused on

the testimony of Appellant’s friend, Seaman Townsel, “who

directly contradicted the appellant’s already implausible

version of the events,” particularly with respect to Appellant’s

description of his initial encounter at the door to Seaman ARM’s

room.    Id.    In addition, the court stated that “the presence of

DNA evidence, the testimony of the victim’s companion’s that

night, and the testimony of the appellant himself leave no room

to doubt that the appellant committed this crime.”        Id.   The

court also placed “great weight” on the fact that Appellant, by


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United States v. Savala, No. 10-0317/NA

his own admission, had not met Seaman ARM prior to knocking on

her door at 5:00 a.m. and “engaging in sexual intercourse with

her shortly thereafter.”    Id. at *18-*19, 2010 WL 317687, at *7.

      Viewing Appellant’s version of the events as “highly

implausible,” and as contradicted in important detail by Seaman

Townsel, the court concluded that further opportunity to cross-

examine Seaman ARM about her prior allegation of sexual assault

“would not have altered the outcome of the trial,” applying a

harmless beyond a reasonable doubt standard.   Id. at *21-*23,

2010 WL 317687, at *8-*9.   In that regard, the court noted that

the defense had the opportunity on cross-examination to inquire

into the fact that she was engaged, that she abused alcohol,

that she had promised her fiancé that she would stop drinking,

that she had broken this promise on the night of the incident,

and that she had been untruthful in filling out her security

clearance form.   Id. at *23, 2010 WL 317687, at *9.    The court

also addressed the credibility of Seaman Townsel, noting that

“he initially lied to the police and was himself a suspect.”

Id.   The court discounted these considerations, stating that “we

believe that he had no real reason to lie at trial.     Any

maladies in the version of events he presented to the police

were fully resolved prior to tr[ia]l.   We find his testimony,

and not that of the appellant, to be credible.”   Id.




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United States v. Savala, No. 10-0317/NA

                          IV.   DISCUSSION

     In the present appeal, Appellant contends that the court

below erred in its prejudice analysis.     The Government contends

that the military judge did not err in his M.R.E. 412 rulings;

that the court below incorrectly found error; and that if there

was error, the court below correctly concluded that any error

was harmless beyond a reasonable doubt.

     At the outset, we note that the Government has not appealed

the conclusion of the court below that the military judge erred

in denying the second defense motion under M.R.E. 412.     “When a

party does not appeal a ruling, the ruling of the lower court

normally becomes the law of the case.”     United States v. Parker,

62 M.J. 459, 464 (C.A.A.F. 2006).     The law-of-the-case doctrine

involves the exercise of appellate discretion rather than

binding legal doctrine.   See id.     As this court has previously

noted:

     [T]he law-of-the-case doctrine does not preclude this
     Court from examining the legal ruling of a subordinate
     court in a case where the Judge Advocate General has
     not certified the issue. However, we are reluctant to
     exercise this power and, as a rule, reserve it for
     those cases where the lower court’s decision is
     clearly erroneous and would work a manifest injustice
     if the parties were bound by it.

United States v. Doss, 57 M.J. 182, 185 (C.A.A.F. 2002)

(citations and quotation marks omitted).




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United States v. Savala, No. 10-0317/NA

     The Government has not established in the present appeal

that “the lower court’s decision is clearly erroneous and would

work a manifest injustice.”    Id. (citations and quotation marks

omitted).   The lower court relied on the record of trial to

demonstrate that the prosecution introduced into evidence Seaman

ARM’s prior allegation of sexual assault.   Savala, 2010 CCA

LEXIS 9, at *12-*13, 2010 WL 317687, at *5.   The lower court

further relied on the record of trial to demonstrate that such

evidence bolstered Seaman ARM’s credibility with respect to the

reasons for her delayed reporting, thereby benefiting the

prosecution.   Id. at *13-*16, 2010 WL 317687, at *6.   Under

these circumstances, the lower court did not clearly err in

concluding that the prosecution opened the door to cross-

examination of Seaman ARM with respect to the prior incident.

Therefore, we shall proceed to address the granted issue, which

raises the question of whether the ruling by the military judge

constituted prejudicial error.

      “We review the prejudicial effect of an erroneous

evidentiary ruling de novo.”   United States v. Toohey, 63 M.J.

353, 358 (C.A.A.F. 2006).   “For constitutional errors, the

Government must persuade us that the error was harmless beyond a

reasonable doubt.”   United States v. Hall, 56 M.J. 432, 436

(C.A.A.F. 2002).   In this case the constitutional error was a

violation of the Confrontation Clause.    As the Supreme Court


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United States v. Savala, No. 10-0317/NA

noted while assessing the potential prejudicial impact of a

Confrontation Clause violation, “[w]hether such an error is

harmless in a particular case depends upon a host of factors.”

Van Arsdall, 475 U.S. at 684.    The Court, in Van Arsdall,

identified five potential factors, without limiting a reviewing

court in the identification and application of factors in a

particular case.   Id. (noting that factors could include, the

importance of the witness’s testimony to the government’s case,

whether the testimony was cumulative, the presence of

contradictory or corroborating evidence, the extent of other

cross-examination allowed, and the strength of the government

case).    This Court has applied a four-part test in assessing

prejudice in the event of an evidentiary error, balancing (1)

the strength of the government’s case; (2) the strength of the

defense case; (3) the materiality of the excluded evidence; and

(4) the quality of the evidence in question.   See, e.g., United

States v. Weeks, 20 M.J. 22, 25 (C.M.A. 1985); Hall, 56 M.J. at

437; Toohey, 63 M.J. at 358.    Regardless of factors employed,

the balancing test involves consideration of whether, “assuming

that the damaging potential of the cross-examination were fully

realized, a reviewing court might nonetheless say that the error

was harmless beyond a reasonable doubt.”   Van Arsdall, 475 U.S.

at 684.




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United States v. Savala, No. 10-0317/NA

     In the present case, the Government contends that its case

against Appellant was strong and that the Seaman ARM’s testimony

comprised only a small part of the evidence which led to the

conviction.   The Government, like the court below, relies on

physical evidence, such as the presence of Appellant’s DNA in

the room and the malfunctioning lock on the door to Seaman ARM’s

room to support the Government’s theory that Appellant

unlawfully entered the room and sexually assaulted Seaman ARM.

The Government relies on the lower court’s view that Seaman

Townsel’s testimony, which contradicts Appellant’s testimony

about the onset of his entry in Seaman ARM’s room, provided

critical evidence upon which the panel could have convicted in

this case.    2010 CCA LEXIS 9, at *23, 2010 WL 317687, at *9.

     Although the prosecution presented a strong circumstantial

case at trial, the defense identified significant facts for

consideration by the court-martial panel on the question of

whether the Government proved its case beyond a reasonable

doubt.   Seaman ARM and Appellant were the only individuals

present at the time of intercourse.   Her testimony was the

Government’s only direct evidence on the disputed issue of

consent.   Seaman Townsel, the critical witness in the lower

court’s analysis, was not present when Appellant was inside the

room with Seaman ARM, and he had no knowledge of what transpired

between Appellant and Seaman ARM at the time of the charged


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United States v. Savala, No. 10-0317/NA

acts.    Moreover, the credibility of Seaman Townsel was placed at

issue by the fact that he had been an initial suspect, and by

the fact that he had misled law enforcement officials during the

initial investigation and subsequently changed his version of

the events.    The question of delayed reporting by Seaman ARM,

and the impact on her credibility, was placed at issue by the

prosecution when the trial counsel interjected the issue of her

prior sexual assault allegation against another individual.      The

prosecution’s physical evidence did not reflect any indication

of trauma.

        Appellant, in his testimony, described the events of the

evening and his early morning encounter with Seaman ARM.

Although the circumstances may have been out of the ordinary,

the events he described were not so unusual as to warrant the

lower court’s dismissal of his testimony as being “highly

implausible” -- a characterization that led the court below to

treat Appellant’s version of the events as not worthy of

consideration by the court-martial panel.

        The balance of factors on the question of prejudice

requires consideration not only of the strength of the

prosecution’s case, but the potential vulnerabilities on the

issue of reasonable doubt.    The vulnerabilities included the

prosecution’s reliance on the testimony of Seaman Townsel, a

witness who had misled investigators about the underlying


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United States v. Savala, No. 10-0317/NA

events, and who did not observe the sexual encounter at issue;

the hazy memory of Seaman ARM, impacted by her excessive

consumption of alcohol; and the issues concerning the

credibility of Seaman ARM, including her motive to lie and her

past deception in dealing with official records, and her delayed

reporting of the alleged rape.   The Government’s circumstantial

evidence could not negate these vulnerabilities, including the

fact that Seaman ARM and Appellant provided conflicting

testimony about what happened at the critical time when they

were the only two people present.     Under the circumstances,

assessment of credibility was a critical issue in the case.       The

strength of the Government’s circumstantial case in other

respects does not overcome these considerations.

     The responsibility at trial for determining whether to

believe the version of events provided by the prosecution or the

defense rested with the panel members, and the ruling by the

military judge enabled the prosecution to enhance the

credibility of its version while handcuffing the defense.

Issues of witness credibility and motive are matters for the

members to decide.   United States v. Moss, 63 M.J. 233, 239

(C.A.A.F. 2006).   When assessing prejudice, we assume that the

“damaging potential of the cross-examination were fully

realized.”   Van Arsdall, 475 U.S. at 684.    In that light, we

assume, without reaching a conclusion on the merits of the


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United States v. Savala, No. 10-0317/NA

charges at issue, that Appellant’s cross-examination could have

convinced the panel that the prior allegation was false.    If the

members believed that Seaman ARM had made a prior false

allegation of rape it “may have tipped the credibility balance

in Appellant’s favor.”   Moss, 63 M.J. 239.   Under these

circumstances, the decision of the military judge to permit use

of the past event by the prosecution to enhance her credibility,

while denying the defense an opportunity to explore the impact

of that event on her credibility, constituted prejudicial error.



                          V.   CONCLUSION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals as it concerns the convictions of rape,

unlawful entry, and adultery is reversed, and a rehearing is

authorized.




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United States v. Savala, No. 10-0317/NA


     STUCKY, Judge, with whom BAKER, Judge, joins (dissenting):

     I disagree with the majority’s application of the law of

the case doctrine in this case.    I further do not believe that

the alleged error was prejudicial.     Therefore, I respectfully

dissent.

                                  I.

     The United States Navy-Marine Corps Court of Criminal

Appeals (CCA) concluded that the military judge erred by barring

Appellant from cross-examining the prosecutrix, Seaman ARM.

United States v. Savala, No. 200800818, 2010 CCA LEXIS 9, 2010

WL 317687 (N-M. Ct. Crim. App. Jan. 28, 2010) (unpublished).

Nevertheless, the CCA held that the error was harmless beyond a

reasonable doubt and affirmed Appellant’s conviction for rape.

2010 LEXIS 9, at *17-*18, 2010 WL 317687, at *6-*7.     The

Government did not appeal the CCA’s finding of error but

asserted as much in its reply to Appellant’s appeal.    The

majority applies the law of the case doctrine to bar

consideration of this issue.   United States v. Savala, __ M.J.

__ (17–18) (C.A.A.F. 2011).

     The law of the case doctrine holds “that a decision

rendered in a former appeal of a case is binding in a later

appeal.”   Black’s Law Dictionary 966 (9th ed. 2009).    The

Supreme Court has made clear that just as the prevailing party
United States v. Savala, No. 10-0317/NA


at trial may assert on appeal any ground in support of a

judgment,

     whether or not that ground was relied upon or even
     considered by the trial court[,] . . . . [it] is
     likewise settled that the appellee may, without taking
     a cross-appeal, urge in support of a decree any matter
     appearing in the record, although his argument may
     involve an attack upon the reasoning of the lower
     court or an insistence upon matter overlooked or
     ignored by it.

Dandridge v. Williams, 397 U.S. 471, 475 n.6 (1970) (quotation

marks and citations omitted); accord Schiro v. Farley, 510 U.S.

222, 228-29 (1994) (“recogniz[ing] that the State, as

respondent, is entitled to rely on any legal argument in support

of the judgment below”).

     This interpretation of the law of the case doctrine is

logical.    It makes no sense to expect a party that prevails in a

lower court to appeal the judgment of that court.   Such a

requirement would waste valuable attorney and judicial

resources.   While I agree with the majority that the door was

opened to cross-examination of Seaman ARM, I would hold that the

Government was not barred by the law of the case doctrine from

contesting the issue.

                                 II.

     The majority holds that the military judge’s error in

prohibiting cross-examination of Seaman ARM on her previous




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United States v. Savala, No. 10-0317/NA


allegation of rape was not harmless beyond a reasonable doubt.

I disagree.

      “[T]he Constitution entitles a criminal defendant to a fair

trial, not a perfect one.”   Delaware v. Van Arsdall, 475 U.S.

673, 681 (1986).   Constitutional errors involving the denial of

an accused’s opportunity to impeach a witness will result in

reversal unless the error was harmless beyond a reasonable

doubt.   “The correct inquiry is whether, assuming that the

damaging potential of the cross-examination were fully realized,

a reviewing court might nonetheless say that the error was

harmless beyond a reasonable doubt.”   Id. at 684.   In

determining whether an error was harmless beyond a reasonable

doubt, we consider

      a host of factors . . . . includ[ing] the importance
      of the witness’ testimony in the prosecution’s case,
      whether the testimony was cumulative, the presence or
      absence of evidence corroborating or contradicting the
      testimony of the witness on material points, the
      extent of cross-examination otherwise permitted, and,
      of course, the overall strength of the prosecution’s
      case.

Id.   In applying these factors, the Court’s overarching goal is

to determine “whether there is a reasonable possibility that the

evidence [or error] complained of might have contributed to the

conviction.”   United States v. Moran, 65 M.J. 178, 187 (C.A.A.F.

2007) (brackets in original) (quotation marks and citation

omitted).



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United States v. Savala, No. 10-0317/NA


                                 III.

        In this case, there was considerable testimony that Seaman

ARM was drinking and became heavily intoxicated.    The evidence

also showed that Appellant and his friend, Seaman Townsel, went

to one of the same bars as Seaman ARM.    Seaman Townsel spoke

with Seaman ARM for a few moments at the bar because they had

met the previous week.    Appellant and Seaman ARM, conversely,

had never met and did not meet each other at the bar.

        At approximately 4:30 A.M., Seaman ARM left a karaoke bar

to return to her barracks room.    After leaving the bar,

Appellant convinced Seaman Townsel that they should go to Seaman

ARM’s room so that Seaman Townsel could speak with her.     When

they arrived at Seaman ARM’s room, Appellant knocked on the

door, which was open.    Seaman Townsel convinced Appellant to

leave because the room was dark and no one was answering the

door.    The next morning Seaman ARM filed a report claiming she

had been raped the previous night by an unknown assailant.

Appellant readily admitted that he had sex with Seaman ARM, but

he contended that it was consensual.    Seaman ARM testified that

it was not.

                                  IV.

        Seaman ARM’s testimony was important because she and

Appellant were the only witnesses to the sexual acts.    Seaman

ARM admitted she was intoxicated and awoke to someone having sex


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United States v. Savala, No. 10-0317/NA


with her whom she could not identify.   Indeed the majority

relies on the victim’s “hazy memory” and “excessive consumption

of alcohol” to suggest that her testimony was unreliable, which

also tends to diminish the importance of her testimony.

Furthermore, Appellant impeached Seaman ARM’s credibility by

pointing out that she had lied on military forms and had broken

a no-alcohol pact with her fiancé.    Other than limiting

questions about the previous rape allegation, the military judge

permitted Appellant full and free cross-examination of

Seaman ARM.

     The evidence also corroborated some of Seaman ARM’s

testimony.    She testified that she did not know Appellant, had

not invited him into her room, and had not consented to have sex

with him.    In accord with Seaman ARM’s testimony, Seaman Townsel

and Appellant both testified that Appellant had never met nor

spoken with Seaman ARM before the night of the events.      As

discussed below, Seaman Townsel also disputed Appellant’s

unsupported description of meeting Seaman ARM at her room.

     The evidence further established that Appellant wanted to

contact Seaman ARM after leaving the bar, that he learned the

location of her room from Seaman Townsel, and that he knew her

door was not latched because it opened when he knocked on it.      A

Naval Criminal Investigative Service agent later confirmed the

fact that Seaman ARM’s door would not properly latch.


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United States v. Savala, No. 10-0317/NA


Furthermore, evidence, including expert testimony, indicated the

likelihood that Seaman ARM was still heavily intoxicated at the

time of the incident, which would explain her failure to respond

to a knock at the door or an unauthorized entrance into her

barracks room.    The Government was thus able to provide a

convincing explanation for how Appellant gained access to Seaman

ARM’s room.

        As the majority recognizes, “the prosecution presented a

strong circumstantial case at trial.”    United States v. Savala,

__ M.J. __ (20).    Although the strength of the case may depend

on whether the evidence is circumstantial or direct, a strong

case is a strong case regardless of the nature of the evidence.

Indeed, trial counsel provided a coherent and convincing picture

of Appellant’s criminal actions.

        The strength of the Government’s case becomes more apparent

when contrasted with the weakness of Appellant’s case.

According to Appellant’s testimony, he knocked on Seaman ARM’s

door at some time after five in the morning with Seaman Townsel

nearby.    Despite being quite intoxicated, Seaman ARM supposedly

came to the door, met Appellant for the first time, and told him

that although she was not interested in Seaman Townsel, whom

Appellant was attempting to speak highly of, she thought

“[Appellant] was cute” and wondered why “[he] wouldn’t talk to

her.”    According to Appellant, he and Seaman ARM agreed he would


                                   6
United States v. Savala, No. 10-0317/NA


return after he went back to his room to freshen up.   When he

returned, the two had a short conversation, which, according to

Appellant, resulted in consensual sex.

     Regardless of the plausibility of the story standing alone,

Appellant’s defense is weak because it is both (1) unsupported

by the evidence and, more importantly, (2) contradicted by

testimony from his friend Seaman Townsel, who testified that

they did not see Seaman ARM at her room and Appellant never

spoke with Seaman ARM in his presence.    It is uncontradicted

that Seaman Townsel was present and in a location where he would

have heard any conversation had one occurred.

     It is Seaman Townsel’s testimony that is critical in

assessing prejudice, as his testimony was the most damaging to

Appellant’s case.   In finding prejudicial error, the majority

relies on the fact that Seaman Townsel’s credibility had been

called into question at trial based on his initial statements to

investigators concerning the incident:    He claimed he saw an

unidentified person enter Seaman ARM’s room.    Certainly the fact

that he changed his story is relevant to Seaman Townsel’s

credibility.   But it might also be indicative of someone seeking

to deflect attention from himself or a friend.   The members had

an opportunity to observe Seaman Townsel and consider his

testimony in light of all the other evidence before the court,




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United States v. Savala, No. 10-0317/NA


including the fact that Appellant admitted having sex with

Seaman ARM.

       Finally, cross-examination on the prior Virginia Beach

incident would not have bolstered Appellant’s attack on Seaman

ARM’s credibility.   In that incident, Seaman ARM awoke from a

night of partying and could not remember what happened.    The

circumstances suggested that someone had sexual intercourse with

her.   She reported the incident as a rape.   When confronted with

the alleged perpetrator’s version of events that it was

consensual, Seaman ARM admitted that the alleged perpetrator’s

version might be true, but she could not remember.   That is not

a false statement.   Without something more in the record, I fail

to see how the majority can conclude that the members could have

found anything false about the prior allegation.   Under the

circumstances, evidence of the previous allegation would, if

anything, have bolstered her credibility with the court members:

When confronted with the evidence, she was able to evaluate the

facts and conclude that she may have been wrong in her

assessment of the situation.   The excluded evidence would not

have “tipped the credibility balance in Appellant’s favor.”

United States v. Moss, 63 M.J. 233, 239 (C.A.A.F. 2006).

       Regardless of whether the military judge erred in not

permitting Appellant to cross-examine Seaman ARM about her

previous rape allegation, such evidence would not have bolstered


                                  8
United States v. Savala, No. 10-0317/NA


his anemic defense.   I am confident that even if “the damaging

potential of the cross-examination were fully realized,” it

would not have affected Appellant’s conviction, and, therefore,

it was harmless beyond a reasonable doubt.   See Van Arsdall, 475

at 684.

                                V.

     I would affirm the judgment of the United States Navy-

Marine Corps Court of Criminal Appeals.




                                 9
