

   
   
   
   U.S. v. Harris



United States, Appellee
v.
Monty J. HARRIS, Sergeant
U.S. Army
 
No. 98-0914
Crim. App. 9401997
 
United States Court of Appeals for the Armed
Forces
Argued May 11, 1999
Decided August 2, 1999
CRAWFORD, J., delivered the opinion of the
Court, in which COX, C.J., and SULLIVAN, GIERKE, and EFFRON, JJ. joined.

Counsel
For Appellant: Captain Donald P. Chisholm
(argued); Colonel John T. Phelps, II, Lieutenant Colonel Adele
H. Odegard, and Captain Kirsten V. Campbell-Brunson (on brief);
Major
Holly S. G. Coffey and Captain Paul Fiorino.
For Appellee: Captain Daniel G. Brookhart
(argued); Colonel Russell S. Estey, Lieutenant Colonel Eugene
R. Milhizer, Major Patricia A. Ham (on brief); Captain Troy
A. Smith.
Military Judge: Keith H. Hodges

THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.

Judge CRAWFORD delivered the opinion of the
Court.
Contrary to his pleas, appellant was convicted
of 2 specifications of rape, 3 specifications of committing indecent acts
with a child, 1 specification of taking indecent liberties with a child,
and 1 specification of forceful sodomy of a child, in violation of Articles
120, 134, and 125, Uniform Code of Military Justice, 10 USC §§
920, 934, and 925, respectively. The convening authority approved the sentence
of a dishonorable discharge, 30 years' confinement, and reduction to the
lowest enlisted grade. The Court of Criminal Appeals affirmed without opinion.
We granted review of the following issues:



I
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION
WHEN HE FAILED TO DECLARE A MISTRIAL AFTER THE GOVERNMENT IMPROPERLY ELICITED
INADMISSIBLE CREDIBILITY TESTIMONY AND UNCHARGED MISCONDUCT EVIDENCE FROM
A CRITICAL PROSECUTION WITNESS.

II
WHETHER THE CUMULATIVE EFFECT OF ERRORS DURING
APPELLANTS COURT-MARTIAL DENIED APPELLANT A FAIR TRIAL.


For the reasons set forth below, we affirm the
decision of the Court of Criminal Appeals.
Appellant contends that the military judge
should have sua sponte declared "a mistrial when the prosecutor
repeatedly asked questions relating to the victims credibility and improperly
elicited uncharged misconduct evidence from Dr. Ellen Speyer." Final Brief
at 4.

FACTS
Improper Credibility Evidence
It was clear from the onset of trial that the
military judge was aware of and sensitive to the limitations surrounding
expert testimony in sexual abuse cases concerning stress syndromes. Before
the members heard any evidence, the military judge repeatedly cautioned
counsel against improper indications or questioning designed to show impermissibly
that this victim was credible. Those cautions, as well as assurances by
trial counsel, follow:
MJ: And do you [TC] expect to ask her [Dr.
Speyer] a question or to proffer evidence that she says after having investigated
this matter, I think [K] is truthful and her story believable?
TC: Your Honor, were aware of the case law
involving the human lie detector and we will ask questions consistent with
the case law.
MJ: [United States v.] Suarez[,
35 MJ 374 (CMA 1992),] is the case you need to look [a]t.

* * *
MJ: See, heres the problem that everybodys
having and I know you guys have read Suarez, but not this woman,
Mrs. [C], or any doctors going to come in here and say, "I believe [K]"
or "I dont believe [K]." I mean, Im not allowing anybody to do that.

* * *
MJ: Okay. And we are specifically excluding
Dr. Speyer or any other person to be a witness as to the truth or veracity
of [K], is that correct?

* * *
MJ: I dont want to simply go on other cases
because every case is different. Why should I give a forensic examination
of this witness, when A - of [K], when A, the witness cannot testify as
to the truth or give their opinion, . . . .

* * *
MJ: All right. If theres anything else [Dr.
Speyer will testify to], Captain [M][sic], let him know.
TC: We abide by the rules, Your Honor.

* * *
MJ: And thats the ticket. And I will not permit
any witness to come in here, okay, and talk about whether or not they believe
or how to believe a witness based upon something like that. The members
will watch her demeanor. The members will listen to her testimony. And
the members will determine her believability.

* * *
MJ: Does he have any -- yeah, that's right.
Does he have any expertise on why -- on how people should believe children
based upon their demeanor?
TC: Yes, he does, Your Honor.
MJ: He does? There's a body of scientific information
that when a child does a certain thing they're believable or less believable?
TC: Sir, it's the best education of all, experience.
He had -- he can establish his experience over 10 years, I believe, in
this work.
MJ: And say "My experience is is [sic] that
[K]'s believable and -- though some children arent?"
TC: No, Your Honor. We will not ask that line
of questioning as were aware of the case law.
Despite these cautions and despite his assurances,
trial counsel ventured into the prohibited area, more than once, with several
witnesses:
TC: Do you believe that [K] is a [sic] honest
person?
A [Mrs. L, teacher]: Very much so.
TC: Has she ever given you any reason to question
her credibility?
DC: Asking for specific instances, Your Honor.
MJ: Sustained.
TC: Do you have any reason to question [K]s
credibility?
A: I would trust [K] with my wallet, my purse,
anything. I mean shes a - - - -
MJ: Yeah. Talk to me.
DC: The bells been rung, Your Honor.
MJ: Do you object?
DC: Not at this -- no, sir. Not at this point.

* * *
TC: When you were questioning the accused,
what was his demeanor?
A [Special Agent (of the Criminal Investigation
Command) Reid]: He appeared to me to be evasive, sir. He rendered physical
signs of crossing his arms.
DC: Objection, Your Honor.
MJ: Sustained.

* * *
MJ: [Y]our objection is sustained. Members
will disregard evasive or any of those other things that go to whether
or not this witnesss opinion is the person was truthful or not. You may
have the witness describe physical characteristics.
TC: Yes, sir.
MJ: Okay. From which the members if they wish,
can come to a conclusion. But I will not let anyone ask a witness the truth
question.
TC: Understood, sir.

* * *
TC: Did her demeanor seem appropriate for somebody
who was claiming that theyd been sexually molested?
A [Dr. Nataraj, Pediatrician]: Yes.
DC: Your Honor?
MJ: Sustained. Members, youll disregard the
question and the answer. You wont ask another question like that. The
members are advised that its your opinion in the form of your verdict
that counts. You may ask her about the witness demeanor, but you will
not ask this or any witness a conclusion like that.
TC: Yes, sir. . . .

* * *
TC [C]ould you describe for the panel the progression
of the treatment that you provided [K]?
A [Dr. Speyer]: Okay.
DC: Relevance, Your Honor.
TC: It goes directly to [K]s treatment and
her credibility, sir. It an all-
DC: 39(a), Your Honor.

* * *

[Session under Article 39(a), UCMJ, 10 USC §
839(a), convened]
MJ: ... Why did you, in the presence of these
members, use the words [K]s credibility?
TC: Misstatement, Your Honor.
MJ: Im tired of your misstatements. Im tired
of the Governments misstatements. How many times do I have to tell you
and tell the members that the credibility issue is solely to the members?
We have talked about the Suarez case till Im sick of talking about
it. Ive pointed out that instruction a thousand times. How many times
do you want to try this case, Captain [B]? Cause youre so damn close to
a mistrial, that youre about to try [it] all over again if you want to.
Is that what you want?
TC: No, sir.
MJ: Do you want to put the [C] family, the
[H] family and all these witnesses through this again?
TC: No, I do not, Your Honor.
MJ: Do you want to go to jail personally?
TC: I do not, Your Honor.
MJ: Okay. Your [sic] damn close, and Im beginning
to believe it isnt a mistake, got it?
TC: Got it, sir.
At this point, the military judge assured himself
that Dr. Speyer understood the permissible limits of her testimony:



Would you please, and in case that we have
another error, and I throw Captain [B] out and cause Captain [K] to fix
up -- pick up the direct examination, will you be very clear to make it
understood that you are not giving your opinion as to whether or not you
believe whether or not abuse occurred?



When the members returned, the military judge
gave the members "a preview" of Dr. Speyers testimony and described for
them the permissible manner in which the testimony could be considered.

Uncharged-Misconduct Evidence
When trial counsel asked Dr. Speyer how Ks
"treatment progressed," Dr. Speyer responded, "Okay. [K] and her mother
both verbalized a lot of concern. They talked about threats being made
by the accused perpetrator against the family."
Defense counsel made a general objection which
was sustained on the basis of hearsay. The military judge directed the
members to disregard the testimony.
At the request of defense counsel, an Article
39(a) session was held, where the following transpired:
DC: Your Honor, as an officer of the court
and on [sic] the interest of justice, I request that Captain [B] be removed
off this case at this point. I dont know how many times he has to be warned.
He knows the rules, weve heard him say it in this courtroom that the Government
always follows the rules at earlier 39(a) sessions. I have worked very
hard, even with my witnesses to make sure that objectionable testimony
doesnt come out; you even saw me do it with Mrs. [H] where I cut her off.
And I think justice calls for Captain [B]s removal from the case at this
point, Your Honor.
TC: Your Honor, I think Captain [M]s trying
to channel your anger and take advantage of the situation here and have
you focus it at me. And I think that -- I think that - - - -
MJ: You are the problem.
TC: As you see it, sir; I do not see it that
way, sir.
MJ: Do you think that its admissible under
any conceivable theory to allow this witness to testify that Mrs. [C] and
or [K] were reporting that the accused and his family were making threats?
TC: Certainly not Mrs. [C], no, sir.
MJ: Or [K], for making threats.
TC: I think -- I think the statements [K] made
to her physician in the course of treatment are admissible and they are
relevant, sir.
MJ: Have you read - - - -
TC: And screaming at me is not going to change
my opinion on that, sir.
MJ: Take a hike, Captain [B], leave. And when
Dr. Speyer is done, you can come back in.
TC: Yes, sir.
After a short recess, the military judge was asked
to reconsider his decision to remove trial counsel from questioning this
witness. Defense counsel maintained his position that Captain B should
be "permanently" removed, even stating that he was "not convinced" Captain
Bs actions were unintentional. Ultimately, the military judge did modify
his decision, permitting Captain B to remain in the courtroom, but directing
that the assistant trial counsel complete the examination of Dr. Speyer.
Her testimony was completed with only two additional problems: (1) an objection
to Dr. Speyers referring to K as "a victim of abuse," which again caused
the judge to caution Dr. Speyer about labeling K as a victim; and (2) the
military judge sua sponte cutting off a question on
redirect which sought to elicit information from Dr. Speyer beyond the
diagnosis of trauma.

Mistrial
Although the military judge made strong reference
to the potential for a mistrial after findings and before sentencing, defense
counsel did not request a mistrial at any point in the proceedings. This
fact was not lost on the military judge:
MJ: Okay. Captain [M], you dont have to
sign up for this if you dont want to, but I was surprised that you did
not request a mistrial when we got into it with Dr. Speyer and whatnot.
Do you have any -- would you like to state anything for the record why
you did or did not -- why you did not move for a mistrial?
DC: Yes, Your Honor. The requested relief at
the time we felt was appropriate. It was also a tactical decision on my
part considering the way the trial was proceeding. I did consult with my
client. At that time we decided that our case was progressing well, that
we did not want to risk a second trial. My client and I agreed that it
was wrong and not desirable for him to have to undergo a whole new trial.
And it was a joint decision made between myself and [appellant].
DISCUSSION
Declaration of a mistrial and prosecutorial
misconduct must be viewed through the prism formed by the Double Jeopardy
Clause of the Fifth Amendment; Article 44(a), UCMJ, 10 USC § 844(a);
and RCM 915, Manual for Courts-Martial, United States (1998 edition).
The Constitution, the Code, and the Manual
protect the accused against improper retrials. The Double Jeopardy Clause
provides: "nor shall any person be subject for the same offence to be twice
put in jeopardy of life or limb...." Article 44(a) provides that "[n]o
person may, without his consent, be tried a second time for the same offense."
Relying in part on Supreme Court precedent*/
-- see, e.g., Oregon v. Kennedy, 456 U.S. 667 (1982);
Arizona
v. Washington, 434 U.S. 497 (1978); United States v. Dinitz,
424 U.S. 600 (1976) -- RCM 915(a) sets forth that a mistrial may be declared
in the discretion of the military judge "when such action is manifestly
necessary in the interest of justice because of circumstances arising during
the proceedings which cast substantial doubt upon the fairness of the proceedings."
Declaration of a mistrial is, however, "a drastic remedy" which should
be used only when necessary "to prevent a miscarriage of justice." United
States v. Garces, 32 MJ 345, 349 (CMA 1991). A military judges determination
on a request for mistrial, or on his own
sua sponte
consideration of a mistrial, will not be reversed "absent clear evidence
of abuse of discretion." United States v. Rushatz, 31 MJ 450, 456
(CMA 1990); United States v. Jeanbaptiste, 5 MJ 374, 376 (CMA 1978).
The Double Jeopardy Clause and the Code are
designed to protect the accused against repeated attempts to try an individual
for the same offense, including subjecting the accused to the embarrassment,
expense, and ordeal of a second trial. With this in mind, the judge should
examine numerous factors in deciding whether to grant a mistrial, including
the timing of the incident leading to the question of mistrial, the identity
of the factfinder, the reasons for a mistrial, and potential alternative
remedies; but, most importantly, the desires of and the impact on the defendant.
United
States v. Donley, 33 MJ 44, 47 (CMA 1991). The defendant "retain[s]
primary control over the course to be followed in the event of" trial errors.
Dinitz, 424 U.S. at 609.
This is not an instance where the defense alleges
a "Hobson's choice" between retrial and unfairness at the first trial because
of intentional or egregious misconduct by the prosecutor. See id.
at 609. The military judge demonstrated his keen sensitivity to improper
credibility testimony. He repeatedly warned counsel and received assurances
that counsel was aware of the limitations. Yet, in at least four instances
trial counsel ventured into the area of improper credibility evidence.
Obviously, trial counsel gave the military
judge pause to consider the option of a mistrial despite the absence of
a request from the defense: "[Y]oure so damn close to a mistrial, that
youre about to try [this case] all over again if you want to." Under these
circumstances, the military judge ultimately determined that he could rely
upon the various cautionary or limiting instructions he gave the members
during trial, and his closing instructions which once again emphasized
that credibility was the determination of the members.
The frequency of the warnings should have caused
the Government to be vigilant with each and every witness. Yet evidence
of that vigilance is lacking. The frequency of the incursions into improper
areas is somewhat remarkable under these circumstances. Fortunately, the
military judge was vigilant. Proper limiting instructions, along with the
presumption that the members followed those instructions, eliminated the
risk of harm from this improper credibility evidence. United States
v. Skerrett, 40 MJ 331, 333-34 (CMA 1994).
Similarly, the military judge corrected the
error from the improper evidence of threats. The evidence was never admitted
or considered as proper "other acts" evidence. See Mil. R. Evid.
404(b), Manual, supra. The military judge told the members to disregard
the comment about threats as hearsay, and he explained that hearsay denied
the appellant an opportunity to confront the allegations of threat. It
is presumed that the members followed this instruction. We conclude that
there is no prejudicial error in the manner in which the military judge
dealt with the evidence of alleged threats made by appellant.
This is not a case where the errors went unnoticed
or uncorrected at the time they occurred. The military judge maintained
control over the entire proceedings, and thereby caught and took corrective
action when inadmissible credibility and uncharged misconduct evidence
was improperly broached by trial counsel.
Thus, we hold that the judge did not abuse
his discretion by not sua sponte declaring a mistrial. We
further hold that the corrective action taken by the military judge assured
appellant a fair trial, especially in light of appellants expressed desires.
The decision of the United States Army Court
of Criminal Appeals is affirmed.
FOOTNOTE:
*/ See Manual, supra at A21-61.

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