                         UNITED STATES, Appellee

                                         v.

                     Demetrius R. CRUDUP, Private
                         U.S. Army, Appellant

                                  No. 08-0392
                         Crim. App. No. 20050112

       United States Court of Appeals for the Armed Forces

                         Argued October 29, 2008

                        Decided December 4, 2008

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

                                     Counsel


For Appellant: Captain William J. Stephens (argued); Lieutenant
Colonel Jonathan Potter and Major Teresa L. Raymond (on brief);
Colonel Christopher O’Brien, Lieutenant Colonel Steven C.
Henricks, Lieutenant Colonel Mark Tellitocci, and Captain Nathan
J. Bankson.


For Appellee: Captain James L. Ndiaye (argued); Colonel Denise
R. Lind and Captain Philip M. Staten (on brief); Colonel John W.
Miller II, Major Tami L. Dillahunt, and Major Elizabeth G.
Marotta.


Military Judge:    Donna M. Wright

            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Crudup, No. 08-0392/AR


     Judge STUCKY delivered the opinion of the Court.

     We granted review to decide whether the United States Army

Court of Criminal Appeals (CCA) erred in holding that the

improper admission of an out-of-court, testimonial statement was

harmless beyond a reasonable doubt.    We affirm.

                         I.    Background

                              A.   Facts

     The CCA described the facts of the case as follows:

          On 28 August 2004, Military Police (MP) Officer
     Sergeant (SGT) Vasquez was called to investigate
     allegations by one of appellant’s neighbors, Mrs. F,
     of a domestic disturbance near appellant’s government
     quarters on Fort Carson, Colorado. Mrs. F testified
     she heard “a lot of yelling and screaming” and saw
     [PC, Appellant’s wife] backing away in a defensive
     posture from appellant.

          Upon arriving at the scene, SGT Vasquez saw
     appellant sitting outside. When SGT Vasquez got out
     of the MP vehicle, appellant approached SGT Vasquez,
     and said he had an altercation with his wife and he
     was the person for whom SGT Vasquez was looking.
     Sergeant Vasquez, with appellant’s consent, entered
     appellant’s quarters. Inside, appellant completed a
     data sheet and SGT Vasquez’s MP partner soon arrived.
     When SGT Vasquez asked where appellant’s wife was,
     appellant said she was at a neighbor’s house down the
     street.

          Approximately fifteen to twenty minutes after
     arrival at the scene, SGT Vasquez proceeded to the
     neighbor’s house four doors down where he found
     appellant’s wife with a bruised and swollen face. She
     appeared to have been crying, was clearly upset, and
     told SGT Vasquez appellant pushed her to the ground
     while she was holding their infant son, punched and
     kicked her, and also kicked their son in the face.




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          Furthermore, [Specialist (SPC)] F (appellant’s
     neighbor and Mrs. F’s husband) testified that he
     looked out his window and saw appellant standing over
     [PC], who was defensively curled up in a ball. He
     then saw appellant kick [PC] and could see the
     couple’s infant son in her arms. Another neighbor,
     SGT L, also testified that she saw appellant push [PC]
     to the ground while she held the infant, and then
     observed appellant kick her and drag her by the hair
     across the lawn. Sergeant L also saw appellant hit
     the infant during the altercation. Later that day
     Mrs. F saw [PC] with bruises on her back, and marks on
     her arms and face. [PC] also showed Mrs. F marks on
     the infant’s face. Later in the week, SPC F saw [PC],
     who still had bruised and puffy eyes.

          Appellant later signed a sworn statement
     admitting to grabbing and pushing his wife onto the
     floor of their quarters. He also admitted that after
     she punched him in the head, he went after her --
     pushing her into the grass and kicking her. Appellant
     stated his wife was not holding their infant son when
     he pushed her onto the grass.

          The defense, in addition to entering [PC’s]
     previous state convictions for offenses related to
     fraud, adopted Ms. R, a government witness, as its
     own. Ms. R, a friend of both appellant and [PC],
     testified she saw [PC] trip and fall while holding the
     couple’s infant son and walking backwards away from
     appellant. Although she saw appellant attempt to kick
     [PC], she did not actually see him kick either [PC] or
     the infant. Ms. R testified she took the infant from
     [PC] after the fall because she was afraid that
     appellant and [PC] might get into an altercation. She
     then went into the house to get her brother. She
     admitted that she did not know whether appellant hit
     [PC] while she was gone.

United States v. Crudup, 65 M.J. 907, 908-09 (A. Ct. Crim. App.

2008).




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                               B.   Trial

     At trial, PC did not testify.      Instead, over the objection

of the defense, the military judge permitted SGT Vasquez to

testify that PC told him that Appellant had pushed her to the

ground while holding the baby, punched and kicked her, and

kicked the baby in the face.

     The military judge convicted Appellant, consistent with his

pleas, of resisting apprehension and making a false official

statement, and contrary to his pleas, of signing a false

official record, and three specifications of assault consummated

by a battery.    Articles 95, 107, and 128, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. §§ 895, 907, 928 (2000).     The

military judge sentenced him to a bad-conduct discharge and

confinement for three years.    The convening authority approved

the sentence as adjudged.

        C.     The Decision of the Court of Criminal Appeals

     The CCA held that the introduction of the out-of-court

statements PC made to SGT Vasquez about the batteries violated

Appellant’s Sixth Amendment confrontation rights.     Crudup, 65

M.J. at 910.    Nevertheless, the CCA concluded that the error was

harmless beyond a reasonable doubt and affirmed.     Id.   The CCA’s

entire analysis of the harmlessness issue is as follows:

     We must now determine whether this error was harmless
     beyond a reasonable doubt. The record of trial in
     this case contains overwhelming evidence supporting


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      appellant’s convictions of assault. Upon arriving at
      the scene in response to a complaint of domestic
      violence, appellant admitted he had an altercation
      with his wife and he “was the one [they were] looking
      for.” Moreover, the extent of [PC’s] and her son’s
      injuries and the testimony of two of appellant’s
      unbiased neighbors, SGT L and SPC F, describing the
      assaults in great detail, contradict Ms. R’s account
      that [PC] simply tripped and fell. We are convinced,
      therefore, that the military judge’s error was
      harmless beyond a reasonable doubt.

Id.

                          II.   Discussion

      Before this Court, Appellant alleges that the introduction

of PC’s out-of-court statement was not harmless beyond a

reasonable doubt with respect to Specification 4 of Charge I.

That specification alleged that Appellant unlawfully “shoved

[JC], a child under the age of 16 years, to the ground with his

hands by unlawfully shoving [PC] to the ground while she was

holding [JC] in her arms.”

      The denial of an accused’s Sixth Amendment right to cross-

examine a witness may be tested for harmlessness.    See Delaware

v. Van Arsdall, 475 U.S. 673, 684 (1986); United States v.

Othuru, 65 M.J. 375, 377 (C.A.A.F. 2007).    We will not set aside

Appellant’s conviction if we “may confidently say, on the whole

record, that the constitutional error was harmless beyond a

reasonable doubt.”   Van Arsdall, 475 U.S. at 681.

      The correct inquiry is whether, assuming that the
      damaging potential of the cross-examination were fully
      realized, a reviewing court might nonetheless say that


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       the error was harmless beyond a reasonable doubt.
       Whether such an error is harmless in a particular case
       depends upon a host of factors, all readily accessible
       to reviewing courts. These factors include 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. at 684.   Whether a constitutional error in admitting

evidence is harmless beyond a reasonable doubt is a question of

law that we review de novo.   Arizona v. Fulminante, 499 U.S.

279, 295 (1991); Othuru, 65 M.J. at 378.

       In Othuru, we applied the five Van Arsdall factors in

determining whether a constitutional error was harmless beyond a

reasonable doubt.   Othuru, 65 M.J. at 378-80.   We noted that the

CCA appeared to have relied solely on the overall strength of

the government’s case in finding the error harmless beyond a

reasonable doubt, and cautioned that “[i]t is a better practice

to review and balance all of the Van Arsdall criteria,” rather

than rely on only one of them.   Id. at 378 n.3.   The CCA in this

case cited to Othuru as authority for reviewing the

constitutional error for harmlessness.    Crudup, 65 M.J. at 909.

But the CCA discussed only one of the Van Arsdall factors -- the

overall strength of the Government’s case -- without mentioning

whether it had even considered the other four factors.   Id. at

910.


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     Applying the Van Arsdall factors to the facts of this case,

we hold that the admission of PC’s out-of-court statement was

harmless beyond a reasonable doubt.

     (1)    The importance of the witness’s testimony:    PC’s

testimony was important in the sense that she was a victim and

was the only witness to the entire incident.     But it was

“‘unimportant in relation to everything else the [military

judge] considered on the issue in question, as revealed in the

record.’”   Othuru, 65 M.J. at 377 (quoting Yates v. Evatt, 500

U.S. 391, 403 (1991), overruled on other grounds by Estelle v.

McGuire, 502 U.S. 62, 72 n.4 (1991)).

     (2)    Whether the testimony was cumulative:    It was.

            (a)   SPC F testified that he saw Appellant yelling at

his wife, who was on the ground, holding her son.     In a previous

written statement he had stated that PC was not holding him.

            (b)   SGT L testified that she saw Appellant pushing

PC, who had the baby in her arms.      Appellant hit PC and the baby

causing PC to fall to the ground with the baby in her arms.

            (c)   Ms. R testified that she observed part of the

incident and thought the baby was in PC’s arms when she fell to

the ground, but was not sure whether she fell or was pushed.

            (d)   In his written statement to the MPs, Appellant

admitted that he pushed PC into the grass and kicked her while




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she was on the ground.   He denied that PC was holding the baby

in her arms at the time.

     (3)   Evidence corroborating or contradicting the statement:

SGT L saw Appellant strike PC causing her to fall to the ground.

Appellant admitted pushing her into the grass and kicking her

while she was on the ground.   SGT L, SPC F, and Ms. R agreed

that the baby was in PC’s arms when she went to the ground,

although SPC F had previously stated that PC was not holding the

baby when he saw her on the ground.

     (4)   The extent of cross-examination permitted:    As PC did

not testify at trial, and there was neither an Article 32, UCMJ,

10 U.S.C. § 832 (2000), investigation nor a deposition,

Appellant did not have an opportunity to cross-examine her.

However, the defense was permitted to impeach PC’s credibility

with a prior conviction for fraud.    See Military Rule of

Evidence (M.R.E.) 806 (permitting impeachment of a hearsay

declarant’s statement that is entered into evidence).

     (5)   Overall strength of the Government’s case:    The case

was quite strong, including eyewitness testimony, corroborating

physical injuries, and Appellant’s partial confession.

     Based on our review of the Van Arsdall factors, we are

convinced that the admission of PC’s out-of-court statement into

evidence was harmless beyond a reasonable doubt.   It did not

“‘contribute’” to the verdict as it was unimportant in relation


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to the other evidence of record.       Othuru, 65 M.J. at 377

(quoting Yates, 500 U.S. at 403).


                         III.   Decision

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




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     EFFRON, Chief Judge, with whom BAKER, Judge, joins

(dissenting):

     Appellant was convicted of a variety of offenses arising

out of an incident involving his wife and his infant son.     The

offenses included assaulting his wife, assaulting his son,

resisting apprehension, making a false official statement, and

signing a false official record.

     At trial, a military law enforcement officer who responded

to the scene of an altercation between Appellant and his wife on

August 28, 2004, testified about the information he had obtained

from Appellant’s wife.   According to the officer, Appellant’s

wife said that Appellant had pushed her to the ground while she

was holding their infant son.   Appellant, in a written statement

provided on the day of the incident, acknowledged that he pushed

and kicked his wife, but denied that his wife was holding their

son during the incident.   Four neighbors, all of whom only

witnessed fragments of the altercation, testified about portions

of the incident.

     Appellant and his wife were the only persons present for

the entire incident.   At trial, the prosecution introduced

Appellant’s sworn statement into evidence, along with the

testimony of the military law enforcement officer recounting the

statement attributed to Appellant’s wife.
United States v. Crudup, No. 08-0392/AR


      On appeal, the United States Army Court of Criminal Appeals

held that the military judge erred in permitting the prosecution

to offer the military law enforcement officer’s version of the

statement attributed to Appellant’s wife.   The court concluded

that the statement attributed to the wife, as recounted in court

by the military law enforcement officer, was testimonial.

United States v. Crudup, 65 M.J. 907, 910 (A. Ct. Crim. App.

2008).   As such, the court held that the erroneous admission of

this statement deprived Appellant of the right of confrontation

under the Sixth Amendment to the Constitution.   Id. at 907, 909-

10.

      The sole issue before our Court is whether the improper

admission of the testimonial statement attributed to Appellant’s

wife was harmless beyond a reasonable doubt.   See United States

v. Othuru, 65 M.J. 375, 377 (C.A.A.F. 2007) (observing that the

“Government bears the burden of establishing that [the]

constitutional error has no causal effect upon the findings”).

I agree with the majority that the proper standard for the

harmless error analysis is set forth in Delaware v. Van Arsdall,

475 U.S. 673, 684 (1986).   For the reasons set forth below, I

respectfully dissent from the majority’s application of those

factors in this case.

      The first factor under Van Arsdall involves the importance

of the witness’s testimony.   The statement attributed to


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Appellant’s wife differed from the statements of the other

witnesses in two vital respects.       First, she was the only

person, other than Appellant, to observe the incident in its

entirety.    Second, as an alleged victim in a charge growing out

of the same incident, her testimony would likely have carried

greater weight with the panel than the testimony of bystanders.

     The second factor asks whether the testimony was

cumulative.   Although other witnesses testified as to portions

of the incident, thus replicating the descriptive content of the

wife’s statement to the military law enforcement officer, the

statement attributed to Appellant’s wife was qualitatively

unique.   Only she could offer a description based on witnessing

the entire incident, and only she could offer the perspective of

being both the mother of the other alleged victim and an alleged

victim herself.

     The third factor considers other evidence corroborating or

contradicting the inadmissible statement.      Only Appellant and

his wife witnessed the incident from start to finish; none of

the other witnesses observed the entire altercation.      Mrs. F

looked away when she called the military police.      Specialist

(SPC) F could not see what was happening as he ran downstairs to

intervene.    Sergeant (SGT) L was asleep when the altercation

began.    Ms. R turned her back to the scene as she carried off

Appellant’s son to safety.   The altercation also occurred in the


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early morning hours when it was still relatively dark outside,

and the closest bystander-witness was no closer than ten feet

from the couple when Appellant’s wife fell to the ground.

     The testimony presented in the court-martial contains a

variety of contradictory statements about the incident.     Ms. R

stated that Appellant’s wife was not pushed, but instead fell

while walking backwards away from Appellant.   Although SPC F and

SGT L testified they saw Appellant’s infant son in Appellant’s

wife’s arms during the altercation, SPC F provided a different

version of the events in his initial statement to military law

enforcement officials.   Given the conflicting evidence regarding

whether the infant was in his mother’s arms as she fell to the

ground, the importance of the statements attributed to

Appellant’s wife cannot be discounted.

     The fourth factor involves the extent of cross-examination

permitted at trial.   Because Appellant’s wife did not testify,

there was no cross-examination.

     The fifth factor concerns the overall strength of the

Government’s case.    I agree with the majority that the

prosecution presented significant evidence at trial, even

without the statement of Appellant’s wife.   The evidence

presented about the incident, however, consisted of partial

observations and sometimes conflicting witness statements.    The

testimony of Ms. R, the only testifying witness who directly


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United States v. Crudup, No. 08-0392/AR


intervened in the incident as it occurred, contradicted the

other witnesses on the critical question of whether Appellant

caused his wife’s fall.   Appellant did not make any confession,

complete or partial, to injuring his son.   On the contrary,

Appellant denied that his son was in the wife’s arms during the

incident.   The Government did not introduce any medical evidence

that the child suffered injuries as a result of the incident,

nor did the Government introduce any photographic evidence of

physical injuries.   In that regard, the Government relied solely

on lay witness testimony that the child had red marks and

bruising on his face that had not been observed prior to the

incident.

     Even though a reasonable factfinder could have returned a

verdict of guilty based on the evidence presented in this case,

see United States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987)

(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)), that is

not the standard at issue in this appeal.   Here, the Government

bears the burden of demonstrating that the erroneous admission

of the wife’s testimony was harmless beyond a reasonable doubt.

In light of the Van Arsdall factors, the Government has failed

to meet its burden of demonstrating that “there is no reasonable

possibility that the presence of the . . . testimonial

statements contributed to the contested findings of guilty.”

Othuru, 65 M.J. at 377.   I would find that the constitutional


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error is not harmless beyond a reasonable doubt, vacate the

sentence, and remand for a new trial.




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