

   
   
   
   U.S. v. Manns



IN THE CASE OF
UNITED STATES, Appellee
v.
Clifton L. MANNS, Gunners Mate (Guns) First
Class
U.S. Navy, Appellant
 
No. 99-0853
Crim. App. No. 98-0641
 
United States Court of Appeals for the Armed
Forces
Argued April 4, 2000
Decided September 25, 2000
GIERKE, J., delivered the opinion of the
Court, in which CRAWFORD, C.J., and EFFRON, J., joined. SULLIVAN, J.,
filed an opinion concurring with a reservation.
COX, S.J., filed an opinion concurring
in the result.
Counsel
For Appellant: Captain Curtis M. Allen,
USMC (argued); Lieutenant Omar R. Lopez, JAGC, USNR.
For Appellee: Lieutenant Margaret E. Jolly,
JAGC, USNR (argued); Colonel Kevin M. Sandkuhler, USMC, and Commander
Eugene E. Irvin, USN (on brief).
Military Judge: A. A. Reynolds
 
 


This opinion is subject
to editorial correction before publication.



Judge GIERKE delivered the opinion of the Court.
A military judge sitting as a special court-martial
convicted appellant, pursuant to his pleas, of attempting to commit indecent
acts, committing indecent acts, indecent assault, and disorderly conduct,
in violation of Articles 80 and 134, Uniform Code of Military Justice,
10 USC §§ 880 and 934, respectively. He was sentenced to a bad-conduct
discharge, confinement for 6 months, forfeiture of $600.00 pay per month
for 6 months, and reduction to the lowest enlisted grade. The convening
authority approved the sentence, except for the confinement, which he reduced
to 175 days. Pursuant to a pretrial agreement, the convening authority
suspended the forfeitures for 12 months. The Court of Criminal Appeals
affirmed the findings and sentence. 50 MJ 767 (1999).
Our Court granted review to determine whether
the Court of Criminal Appeals erred by finding that appellants unsworn
statement, "I have tried throughout my life, even during childhood, to
stay within the laws and regulations of this country," was an assertion
of fact, subject to rebuttal. 52 MJ 481 (1999). For the reasons set out
below, we affirm.
Appellants responses during the plea inquiry
and a stipulation of fact established that appellant committed numerous
offenses against his stepdaughter, TM, over a 3-year period, while she
was between the ages of 14 and 16. On two occasions, he attempted to pull
TM on top of him for sexual gratification. On 17 or 18 occasions, he fondled
and touched TMs breasts. On approximately 6 occasions, he watched TM take
a shower.
Appellant made an unsworn statement during
the sentencing phase of the trial. He told the military judge:



I regard the Navys core values of commitment,
honor and courage very seriously. I believe my service record reveals me
to be of good character, solid skills and dedication. I have tried throughout
my life, even during childhood, to stay within the laws and regulations
of this country.



(Emphasis added.)
In rebuttal, the prosecution offered Prosecution
Exhibit 3, a 34-page document, which was received over defense objection.
It included a psychological evaluation report reflecting that, during an
interview with a clinical psychologist, appellant admitted using marijuana
before enlisting in the Navy, committing adultery, using prostitutes on
four occasions, and looking at pornography. Much of the reports narrative
describes appellants denials that he had ever participated in deviant
sexual behavior other than the charged offenses. The report also contains
appellants admission that he is obsessed with sex. Finally, the report
contains the psychologists conclusion that appellant does not accept full
responsibility for his behavior.
Defense counsel objected that the evidence
was not proper rebuttal under RCM 1001(d), Manual for Courts-Martial, United
States (1995 ed.).* The
military judge admitted the evidence but declined to differentiate between
rebuttal evidence and relevant sentencing evidence under RCM 1001(b)(4).
He commented, "If its relevant and whether or not it tends to rebut, I
think the rule contemplates that the tendered evidence would be admissible."
After further argument by counsel, the military judge ruled:



I think the evidence based upon the rules
being relaxed is permissible evidence on sentencing. Whether or not its
rebuttal, it looks like largely it is rebuttal, but even if it is not,
strictly speaking, rebuttal, I believe its relevant and, therefore, properly
admissible in these circumstances for the court to consider in determining
an appropriate sentence.



The Court of Criminal Appeals held that the reference
to pornography was not proper rebuttal, but it found no prejudice from
the error. 50 MJ at 770-71.
Appellant now argues that his statement that
he "tried" to obey the law is not a statement of empirical fact that is
capable of being proven true or false and, thus, is not subject to rebuttal.
The Government argues that appellant made an assertion of fact, and that
the rebuttal evidence was admissible to show that he did not try to obey
the law. Alternatively, the Government asserts that any error in receiving
the evidence was harmless.
RCM 1001(b)(4) allows the prosecution to present
"evidence as to any aggravating circumstances directly relating to or resulting
from the offenses of which the accused has been found guilty." RCM 1001(c)(2)(A)
authorizes an accused to make an unsworn statement during the sentencing
proceedings. RCM 1001(c)(2)(C) prohibits cross-examination of the accused
about the unsworn statement, but permits the prosecution to "rebut any
statements of facts therein."
A military judges decision to admit or exclude
evidence is reviewed for an abuse of discretion. United States v. Sullivan,
42 MJ 360, 363 (1995). Sentencing evidence, like all other evidence, is
subject to the balancing test of Mil. R. Evid. 403, Manual, supra.
United
States v. Rust, 41 MJ 472, 478 (1995). A military judge enjoys "wide
discretion" in applying Mil. R. Evid. 403. Id. "Ordinarily, appellate
courts exercise great restraint in reviewing a judges decisions under
Rule 403." United States v. Harris, 46 MJ 221, 225 (1997), quoting
Government of the Virgin Islands v. Archibald, 987 F.2d 180, 186
(3d Cir. 1993). When a military judge conducts a proper balancing test
under Mil. R. Evid. 403, the ruling will not be overturned unless there
is a "clear abuse of discretion." United States v. Ruppel, 49 MJ
247, 250 (1998). This Court gives military judges less deference if they
fail to articulate their balancing analysis on the record, and no deference
if they fail to conduct the Rule 403 balancing. See Government
of the Virgin Islands v. Archibald, supra. Because the military
judge in this case did not conduct a Rule 403 balancing, we have examined
the record ourselves. United States v. Lebovitz, 669 F.2d 894, 901
(3d Cir. 1982), cited with approval in Archibald,
supra.
In United States v. Cleveland, 29 MJ
361 (CMA 1990), the accused made an unsworn statement that included the
following:



Although I have not been perfect, I feel
that I have served well and would like an opportunity to remain in service,
regain the trust and respect of my co-workers and supervisors. In deciding
my case, I ask that you consider my entire record and personal situation
and the fact that the decision you have will have an impact upon my wife
and me for the rest of our lives.



29 MJ at 362 (emphasis added). This Court held
that the accuseds statement was not a statement of fact, but "more in
the nature of an opinion -- indeed, an argument[.]" 29 MJ at 364. Similarly,
in United States v. Partyka, 30 MJ 242, 247 (CMA 1990), the accuseds
efforts to blame the victim and her parents for his sexual abuse was held
to not be a "statement of fact" within the meaning of RCM 1001(c)(2)(C).
Unlike Cleveland and Partyka,
this case involves appellants assertion of fact that he had tried to obey
the law. Thus, we hold that the prosecution was entitled to produce evidence
that appellant had not tried, or at least had not tried very hard.
Turning to the question whether Prosecution
Exhibit 3 was proper rebuttal, we hold that appellants admission that
he had used marijuana rebutted his assertion that he tried to obey the
law all of his life. We further hold that appellants admissions of adultery,
use of prostitutes, and obsession with sex were admissible on two grounds.
First, they rebutted his claim that he had tried to obey the law. Second,
they were admissible under RCM 1001(b)(4) to show the depth of his sexual
problems. See United States v. Ciulla, 32 MJ 186 (CMA 1991).
The question remains whether trial counsels
response to appellants factual assertion was "overkill," subject to exclusion
under Mil. R. Evid. 403. See United States v. Rust, supra.
Because this was a bench trial, the potential for unfair prejudice was
substantially less than it would be in a trial with members. We are satisfied
that the military judge was able to sort through the evidence, weigh it,
and give it appropriate weight. See United States v. Cacy,
43 MJ 214, 218 (1995).
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
FOOTNOTE:
* All Manual
provisions are cited to the version applicable at trial. The current version
is unchanged, unless otherwise indicated.


SULLIVAN, Judge (concurring with a reservation):
Naturally, I completely agree with the majoritys
core holding in this opinion ¾
that the unsworn statement of appellant, specifically:



I have tried throughout my life, even
during childhood, to stay within the laws and regulations of this country.
[Emphasis added.]



opened the door to rebuttal by the prosecution.
I agree because this was my exact position in United States v. Cleveland,
29 MJ 361, 364 (CMA 1990) (Sullivan, J., dissenting), where in my view,
the appellant opened the door to rebuttal by his unsworn statement, specifically:



I feel that I have served [my country]
well. [Emphasis added.]



My only reservation is in the dicta portion of
the present opinion. I cannot accept the majoritys attempt to explain
the different result in the majority holding in Cleveland (door
not opened for rebuttal) and in the present case (door opened for rebuttal).
This semantic contortion I do not accept. According to the majority, when
someone says, "I feel I have served well," ¾
that is an opinion which would not allow rebuttal. But when someone
says, "I have tried to stay within the law," ¾
that is a statement of fact which would allow rebuttal. Well, I
think a reasonable person would hold that both statements (i.e.,
"I feel" and "I have tried") say the same thing. In my view, both statements
properly opened the door for the prosecution to give rebuttal evidence
during the sentencing portion of these cases. United States v. Cleveland,
supra
at 364 (Sullivan, J., dissenting). Other than this minor reservation, I
concur in affirming this conviction.


COX, Senior Judge (concurring in the result):
The admission of the clinical psychological
evaluation report to introduce statements of appellant that he had committed
totally unrelated offenses was clearly erroneous in my view, for several
reasons. First, in Jaffee V. Redmond, 518 U.S. 1 (1996), the Supreme
Court recognized that there is a federal common law privilege regarding
confidential communications to a psychologist. Although a majority of this
court has denied servicemembers the very protection against intrusions
into their private and confidential communications with their mental health
counselors that their fellow citizens enjoy in every other federal court
in the land, I would find the privilege exists. See United States
v. Rodriguez, No. 99-0224, __MJ __ (2000) (Gierke, J., joined by Cox,
S.J., dissenting).
Second, the statement by appellant that "I
have tried" to obey the law is an expression of a subjective belief by
appellant, not a statement of fact. Judge Sullivan has hit the nail on
the head in his separate opinion. There is no difference between "I feel"
and "I tried." See United States v. Cleveland, 29 MJ 361,
364 (1990). The only problem is that Judge Sullivan got it wrong in Cleveland.
Third, this is an "unsworn" statement. The
Government consistently wants to elevate an "unsworn" statement to the
level of "evidence." I suggest that this desire to hammer an accused who
is seeking mercy through his last desperate plea to the sentencing authority
demonstrates a complete lack of confidence in military court members and
military judges. The proper way to deal with an unsworn statement is for
the military judge to give a proper instruction to the members regarding
the accused's right of allocution, including a reminder to the members
that the statement is "unsworn" and that the accused is not subject to
cross-examination.
Fourth, it is clear that the prejudicial impact
of any evidence of prostitution, adultery, and drug abuse ordinarily far
outweighs any probative value in a case like this. Appellant was being
sentenced for child molestation. That is serious enough. He should not
be sentenced based upon his own confidential admissions that he used drugs
or slept with prostitutes on four separate occasions. The admission of
this evidence is outrageous. Indeed, under some circumstances, even if
appellant had been convicted of these offenses and sent to jail, his convictions
could not be used to enhance his sentence. See Baldasar v. Illinois,
446 U.S. 222 (1980)
In spite of the fact that I am of the opinion
that the admission of appellant's clinical record was erroneous, I am likewise
convinced that because this was a military judge alone sitting as a special
court-martial, the military judge was not improperly swayed by this erroneous
material. Art. 59(a), UCMJ, 10 USC § 859(a).


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