                    UNITED STATES, Appellee

                                 v.

                Geoffrey L. SULLIVAN, Sergeant
                 U.S. Marine Corps, Appellant

                           No. 10-0383

                    Crim. App. No. 200900148

    United States Court of Appeals for the Armed Forces

                    Argued December 13, 2010

                      Decided June 8, 2011

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


                              Counsel

For Appellant: Major Jeffrey R. Liebenguth, USMC (argued);
Lieutenant Michael E. Maffei, JAGC, USN.

For Appellee: Captain Robert E. Eckert, USMC (argued);
Colonel Louis J. Puleo, USMC, and Brian K. Keller, Esq. (on
brief).

Military Judges:    E. H. Robinson and T. J. Sanzi




    THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Sullivan, No. 10-0383/MC


     Judge BAKER delivered the opinion of the Court.

     A general court-martial composed of members convicted

Appellant, contrary to his pleas, of carnal knowledge, two

specifications of assault consummated by a battery, assault

with a means likely to produce death or grievous bodily

harm, communicating a threat, and kidnapping, in violation

of Articles 120, 128, and 134, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. §§ 920, 928, 934 (2006).   The

adjudged and approved sentence included confinement for six

years, reduction to pay grade E-1, forfeiture of all pay

and allowances, and a dishonorable discharge.

     On review, the United States Navy-Marine Corps Court

of Criminal Appeals affirmed.1

     We granted review of the following issues:

     WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY
     EXCLUDING RELEVANT EVIDENCE THAT SHOWED THE ALLEGED
     VICTIM HAD A MOTIVE TO FABRICATE HER STORY.

     WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY
     EXCLUDING EVIDENCE EXPLAINING WHY APPELLANT TOLD
     WITNESSES THAT THE ALLEGED VICTIM HAD NOT TAKEN HER
     MEDICATION, LEAVING THE MEMBERS WITH THE UNREBUTTED
     IMPRESSION THAT APPELLANT LIED ABOUT HER NEED FOR
     MEDICATION TO PROTECT HIMSELF AGAINST ALLEGATIONS OF
     MISCONDUCT.

For the reasons stated below, we conclude that the military

judge did not abuse his discretion.

1
  United States v. Sullivan, No. NMCCA 200900148, 2010 CCA
LEXIS 19, at *18, 2010 WL 520821, at *6 (N-M. Ct. Crim.
App. Feb. 12, 2010).


                             2
United States v. Sullivan, No. 10-0383/MC


                            BACKGROUND

     Appellant did not testify at trial.      Therefore, the

evidence of events within quarters on Camp Pendleton

derives entirely from the victim EM’s testimony.     However,

the facts that were in evidence or in the record for the

purposes of assessing the military judge’s rulings also

derive from physical evidence of the victim’s injuries,

witness testimony involving events outside quarters on Camp

Pendleton, as well as any permissible uses of Appellant’s

initial statement to investigators.      It also includes the

portions of EM’s medical records, testimony of EM’s mother,

and testimony of Dr. Herbert McMichael that were admitted

during the Article 39(a), 10 U.S.C. §839(a) (2006), session

conducted for the purpose of assessing Appellant’s proffer

of evidence.

     EM was a minor who lived on the Cahuilla Indian

Reservation in California.    As a child, EM experienced a

number of family traumas:    her maternal grandfather shot

and killed her mother’s boyfriend, and her younger sister

and cousin were killed by a drunk driver (the drunk driver

was also EM’s cousin).   In the wake of these events and

because her mother caught her using marijuana, EM entered

psychological therapy around age twelve:     she saw a

psychologist associated with Indian Health Services, Dr.


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United States v. Sullivan, No. 10-0383/MC


McMichael, an average of seven times per year from 2002 to

2007.

        EM identifies Appellant as her cousin.   In June 2005,

there was an incident that predated the charged offenses.

EM was visiting Appellant at his house in Hemet,

California, about forty-five minutes from the reservation.

EM was fifteen.    EM testified that Appellant “forced [her]

to have sexual intercourse with him.”    This was the basis

for the carnal knowledge specification under Article 120,

UCMJ.

        The event resulting in the other charges occurred

approximately two years later, in September 2007.

September 22, 2007, was EM’s seventeenth birthday, and EM

had a barbeque with family at her house.      Appellant could

not attend.    However, Appellant called EM ten to fifteen

times and texted her about fifty times until she answered.

According to EM, Appellant asked her to go to a movie with

him; when she declined his offer, he “said that if I didn’t

go to the movies, he would show up at my house and he would

kill me.”    EM agreed to go to the movies.

        EM met up with Appellant the next day at a motocross

race.    Appellant texted her that he was “parked behind a

bike trailer.”    He refused her mother’s request to say

hello and drove off when EM got in the car.      They stopped


                                4
United States v. Sullivan, No. 10-0383/MC


for fast food.   As Appellant ate in the car, EM informed

Appellant that she had told her mom to meet them at the

movie theater, and he seemed “a little bit upset” at this.

     Appellant then told EM that he was feeding the dogs

for his Officer-In-Charge at Camp Pendleton.   Entering Camp

Pendleton, military police pulled over Appellant and gave

him a ticket.    As Appellant pulled into the driveway, EM

said she wanted to wait in the car while he fed the dogs,

but he “was getting angry” and told her to go inside.    A

neighbor approached as they were entering the house and

said that the dogs had been fed and “taken care of.”

Appellant then told EM that the neighbor “took care of [the

dogs] on weekends.”   This prompted EM to ask “what we were

doing here,” and “he wouldn’t answer.”

     At this point, EM testified, “I was nervous and

scared.”   Appellant went in the living room, sat on the

couch and began watching TV.   EM stated she wanted to

leave, and then yelled that she wanted to leave.   Appellant

“told [EM] that we weren’t going to leave until we did

something.”   EM testified, “I think [it] meant he wanted to

perform some kind of sexual activity with me.”   EM’s sister

called and EM answered; Appellant got angry and told her to

hang up.   When she was off the phone, Appellant repeated

that “we weren’t leaving till we did something.”


                               5
United States v. Sullivan, No. 10-0383/MC


        EM said she “tried walking out the front door” but

“[Appellant] had grabbed the back of my sweatshirt and

pulled me down to the couch . . . . He had throw[n] his

shorts off and tried pushing my head . . . . [h]e put it

around the back of my neck and pushed -- pushed my head

down.”    According to EM, he had pulled his shorts “almost

midthigh” and his boxers down.      EM made a run toward the

front door, but it was locked and she didn’t get it open in

time.    Appellant grabbed her “[l]ike in a headlock” and

dragged her down the hallway.       EM rated his use of force as

an “eight or nine” on a scale of one to ten.

        As he dragged her down the hallway, Appellant “had

pulled the hood from my sweater over my face and held . . .

one of his hands down on my nose and my mouth and the other

hand around my neck.”    EM testified that she “thought he

was trying to kill me.    And I thought I was going to die.”

She testified that she dialed 911 in her pocket but lost

consciousness, and when she came to, Appellant took the

phone from her hand and hung up before she could say

anything.    EM ran to the bedroom and reached for the

window, but Appellant pulled her away; Appellant told her

to be quiet or he was going to kill her.

        Appellant walked out of the bedroom; EM was trying to

stand, leaning over a dresser.      He came back to the room


                                6
United States v. Sullivan, No. 10-0383/MC


with a knife in his hand.    First, according to EM, he held

the knife to EM’s neck and “told me that, if I wasn’t going

to be quiet, that he was going to kill me.”    Then he

offered EM the handle “[a]nd he told me that . . . if I was

going to tell someone what he had done then just to kill

him.”    Appellant seemed “scared” and “like he wanted to

cry.”

        EM testified that at this point she ran for the door.

She got it unlocked, opened it, and Appellant grabbed her

again in a headlock, locked the door, threw EM to the floor

and when she stood up, punched her in the mouth.    She stood

up and walked toward the third bedroom, trying to push

Appellant away.    He hit her head on the corner of a tall

dresser.    Appellant subsequently told EM to get in the car.

She was afraid that “he’d do something like maybe get us in

a car wreck or something and try to kill both of us.     I

still didn’t think he was going to let me live that day.”

They walked through the house toward the driveway and he

discussed what EM should tell her mom to explain her

unanswered calls.    When he opened the passenger door for

EM, she ran down the street until she “saw a lady.    And I

asked her to help me.    And I just kind of collapsed on the

-- on the grass area.    I think it was someone’s yard.”




                                7
United States v. Sullivan, No. 10-0383/MC


     The lady EM saw was Eileen Taylor, a neighbor who was

on a walk with her young children.   When EM collapsed,

Taylor, who had previously worked as a registered nurse,

kneeled over her.   Other neighbors saw them and came

outside.   Witnesses described EM as “hyperventilating,”

“eyes rolled in her head,” and saying, “[h]e hurt me.”

     Appellant watched EM from down the street and then

drove over in his car.   Appellant told Lieutenant Colonel

(Lt Col) Kenneth Maney and his wife, neighbors who were

among the bystanders, that “she missed a series of her

meds” and attempted to persuade EM back into the car.     Lt

Col Maney testified that EM “made it clear to me that [she

thought] he would hurt her.”   As the situation progressed,

“her health was starting to deteriorate” and they “couldn’t

get a pulse on her.”   Lt Col Maney and the other bystanders

called EM’s mother and then the Provost Marshal’s Office,

which sent military police and an ambulance.   Military

police questioned Appellant at the scene as the ambulance

took EM to the hospital.

     The defense argued at trial that EM was mentally

unstable and “fabricated the allegations against Cpl

Sullivan because she attempted to mutilate herself and had

suicidal ideations on 23 September 2007.”   According to

Appellant, EM feared that her mother would send her to be


                               8
United States v. Sullivan, No. 10-0383/MC


hospitalized if her mother discovered the true source of

her injuries as self-inflicted or having occurred during

Appellant’s attempt to stop EM’s self-injury.   Appellant

further argued that EM’s condition was prone to triggering

events, like birthdays, and cyclical in nature, making past

behavior relevant to current conduct.   To support this

defense, Appellant sought to present evidence of EM’s prior

self-mutilation and “suicidal ideations” allegedly

discussed with Dr. McMichaels during her prior treatment

and recorded in her medical records.2


2
  “Suicide ideation,” according to psychologist Dr.
McMichael, who introduced the term to this case, “doesn’t
involve intent. It does not involve a plan.” Rather,
suicidal ideation involves thoughts that are “not unusual
for daily life for healthy people.” Dr. McMichael
described a continuum ranging from mere suicidal ideations
to someone at high risk of suicide, who is developing an
intent and a plan, which is “much different from a suicidal
ideation.” For example, Dr. McMichael offered, “if I had
an automobile accident and I crush up my wife’s car and
said, Oh, my goodness. I wish I were dead. . . . She’s
going to read me the riot act. That’s an ideation.”

     The term self-mutilation, as used by Dr. McMichael in
his proposed testimony, is distinct from suicide ideation.
He testified, “[s]elf-mutilation is a coping skill. It’s a
dysfunctional coping skill, but it’s nonetheless an
effective coping skill.” Discussing self-mutilation, Dr.
McMichael noted:

     It reduces the psychological pain that the person is
     having. And it’s a cut across the arm. Cutting is a
     cut across the arm. When they start cutting down the
     arm[s] that’s no longer cutting, that’s a suicide
     attempt. So that’s not cutting, that’s not self-
     mutilation. And cutting across the thighs is typical

                             9
United States v. Sullivan, No. 10-0383/MC


       The military judge called an Article 39(a), UCMJ,

session to determine the admissibility of Dr. McMichael’s

proposed testimony, particularly regarding EM’s past

medication prescriptions and history of self-mutilation or

“suicide ideation.”    He concluded that it did not meet the

relevancy requirement and that any relevance was outweighed

by potential prejudice pursuant to Military Rules of

Evidence (M.R.E.) 401 and 403.       He also ruled inadmissible

the defense’s cross-examination of EM and her mother on the

subject of her past suicide ideation, self-mutilation, and

medications.    The military judge stated on the record that

he excluded this evidence based on failure to establish a

relevant connection to the case (from which members could

draw permissible inferences).

       Because these subjects were repeated and because the

military judge invited the defense counsel to revisit the

topic or recall witnesses if they could establish

relevance, the record contains multiple discussions with

counsel and rulings by the military judge.3      Ultimately, the



       of someone who has had a lot of trauma in their life,
       as well as cutting across the arms.
3
    The military judge held:

       Defense counsel characterizes this evidence as
       bias. When it appears that what this actually
       is, is character evidence to show action and


                                10
United States v. Sullivan, No. 10-0383/MC



     conformity there with [sic]; that is, [EM]
     exhibits these traits, does these things, is this
     type of person, and she was this type of person
     on September 23, 2007.

He based this on prior examinations in which he
stated:

     I, again, am not going to allow you to get into
     her suicide ideations or self mutilation. . . .
     [F]irst off, . . . I have not heard the
     relevance. I have asked both sides a couple
     times. I have not heard the relevance of it. So
     that is number one.

     Number two, I see no way that the government has
     somehow opened the door on this issue by either
     direct or otherwise.

     Whatever relevance there may be there, if there
     is any, I would say that under 403 that this type
     of evidence must be kept out in order to not
     confuse the members or to get in improper
     evidence on the alleged victim that is not
     relevant to these charged offenses.

He later gave the defense counsel another opportunity:

     Connect for me the embarrassment of self
     mutilation and the threat of residential
     treatment to making up these allegations.

     . . . .

     . . . [S]how me the linkage of how that would go
     to show her making false allegations against the
     accused.

     . . . .

     . . . What evidence is on the record right now
     that she injured herself?

     . . . .




                             11
United States v. Sullivan, No. 10-0383/MC


military judge detailed his decisions in written findings

of fact and conclusions of law rooted in M.R.E. 401 and

M.R.E. 403.

     [T]he [C]onstitution does not confer upon the accused
     a right to present any and all evidence at trial, but
     only the evidence which is legally and logically
     relevant.

     . . . .

     . . . [E]vidence that the defense sought to elicit
     here was not bias, because at no point was there a
     fragile theory of bias presented. . . . Under 403, in
     doing an analysis, a balancing analysis on this issue,
     I found that the evidence that the defense was trying
     to admit . . . had very low probative value.

     . . . Conversely, the danger that the members would
     misuse the evidence and use it for an improper purpose
     or . . . distract from the main issue in the case was
     very high.

     On appeal, Appellant argues that he was denied the

opportunity to put on a defense because EM’s mental health

records were relevant and central to his claim that EM’s

injuries were self-inflicted and that she had a motive to



     . . . [W]hat evidence is on the record that she
     injured herself? Is there something on the
     record?

When the defense counsel was unable to demonstrate a
connection, the military judge stated:

     [Y]ou can’t just pull out something that happened
     six months ago and say, Ha, we’re going to bring
     this in. There’s got to be some connection.
     There’s got to be some relevancy to the charged
     offense. And right now there’s nothing in the
     record that shows that.


                             12
United States v. Sullivan, No. 10-0383/MC


fabricate. Appellant further argues that the military judge

violated his constitutional right to confront witnesses

because the military judge restricted the admission of

evidence that went toward EM’s credibility based on her

psychological history.

                            DISCUSSION

     This Court reviews a military judge’s evidentiary

decisions for an abuse of discretion.    United States v.

Ediger, 68 M.J. 243, 248 (C.A.A.F. 2010).

Issue I:   Evidence of Motive to Fabricate

     The Confrontation Clause preserves the right of an

accused “to be confronted with the witnesses against him.”

U.S. Const. amend. VI; United States v. Carruthers, 64 M.J.

340, 344 (C.A.A.F. 2007).    This right includes the right to

cross-examine witnesses, including on issues of bias and

credibility.   In fact, “This Court has held that rules of

evidence should be read to allow liberal admission of bias-

type evidence.”    United States v. Moss, 63 M.J. 233, 236

(C.A.A.F. 2006).

     At the same time, a military judge retains “wide

latitude” to impose “reasonable limits” upon cross-

examination.   Delaware v. Van Arsdall, 475 U.S. 673, 679

(1986), quoted in Carruthers, 64 M.J. at 341.    Moreover,

evidence must satisfy the rules of evidence.    An accused


                                13
United States v. Sullivan, No. 10-0383/MC


does not have a right to cross-examine a witness on any

subject solely because he describes it as one of

credibility, truthfulness, or bias.   There must be a direct

nexus to the case that is rooted in the record.    That is,

the evidence must be logically relevant as required by

M.R.E. 401, and it must also be legally relevant in

accordance with the M.R.E. 403 balancing test.    In short,

the right to cross-examine is the right to question where

the proffer establishes a real and direct nexus to a fact

or issue at hand.   That nexus is as important where the

concern involves inquiry into the victim’s medical

background and privacy as it does when it involves

traditional M.R.E. 403 concerns like distraction and

confusion of the members.

     In our view, the military judge did not abuse his

discretion in ruling that Appellant did not establish such

a nexus in this case.   First, Appellant’s theory of

admission was based in part on the prospect that EM feared

hospitalization if her mother believed she had sought to

injure herself.    However, there is no evidence in the

record that EM contemplated the possibility of

hospitalization.    There is also no evidence that EM’s

mother would consider hospitalization in the case of a

future cutting incident.    Significantly, defense counsel


                               14
United States v. Sullivan, No. 10-0383/MC


did not question EM or her mother on this subject at trial

–- nor did the military judge preclude defense counsel from

doing so.    (To his credit, Appellant’s counsel acknowledged

as much at oral argument.)    The mere fact of prior

psychological counseling does not create a sufficient nexus

to inquire into a victim’s medical history.    A direct nexus

is needed.

     Further, EM’s injuries were not similar to those Dr.

McMichaels described as associated with EM’s prior self-

mutilation through cutting.    At one point, the military

judge asked defense counsel:   “[I]s there anything on the

record that shows that she did these injuries? . . . I just

want to be certain about that.”     Defense counsel responded

by acknowledging the question and stating, “[N]o, sir.”

Subsequently, the military judge found “the injuries were

marks to her neck and a cut lip, which in no way was ever

presented as something that she had done to herself.”

Again, there is no direct nexus that would open the door to

inquiry regarding the victim’s mental health counseling for

cutting.

     As a result, this case is distinguished from Moss, 63

M.J. at 238-39, a case Appellant cites, in which this Court

reversed the trial court’s decision to exclude testimony

regarding the victim’s mental health records and history.


                               15
United States v. Sullivan, No. 10-0383/MC


To start, Moss was a “‘he said/she said’ scenario.”        Id. at

237.   The testimony of the accused and the victim stood

alone and “[t]here was no other evidence to corroborate the

sexual misconduct.”   Id.     In contrast, in this case there

were witness bystanders who testified to the circumstances

immediately following the incident as well as evidence of

EM’s physical injuries, which tended to corroborate EM’s

testimony.

       In Moss, there was also a direct nexus between the

proffered evidence and evidence on record at trial.        Id.

The victim had been repeatedly punished, beaten, and

institutionalized “as a result of behavior problems and

suicide attempts,” contemporaneous with the events in

question.    Id. at 235.    The record also reflected that the

victim had lied to her mother, school officials, and mental

health professionals, for which there was evidence in her

mental health records.     Id.   As a result, this Court

recognized a “viable defense theory as to why KLVD would

fabricate the rape allegations,” because “KLVD had a motive

to misrepresent the event with Appellant in order to change

her own present circumstances,” and alter the context of

her relationship with her mother.     Id. at 235, 237.     The

Court concluded, “[a] reasonable panel might have reached a

significantly different impression of [the victim]’s


                                 16
United States v. Sullivan, No. 10-0383/MC


credibility had the defense been able to present the

excluded evidence.”    Id. at 237.   Thus “the military

judge’s exclusion of the proffered evidence denied

Appellant his fundamental right of confrontation and cross-

examination.”    Id. at 236.   This case is not Moss;

Appellant did not provide the factual predicate necessary

to create a sufficient nexus between EM’s previous mental

health issues and counseling and Appellant’s theory of

admission to overcome the M.R.E. 403 balancing test.4

       Further, and important to our reasoning, Appellant was

given the opportunity to demonstrate such a nexus.      First,

all of the records of EM’s visits with Dr. McMichael were

available to Appellant, and the defense was able to

question Dr. McMichael out of the presence of the members

to attempt to show the relevance of his proposed testimony.

       Second, the military judge repeatedly conducted

balancing tests, on the record, in light of M.R.E. 401 and

4
    The military judge specifically concluded:

       So I felt the probative value of this evidence was
       extremely low. Conversely, the danger that the
       members would misuse the evidence . . . was very high.

       . . . .

       . . . [A] link that was missing in the defense theory
       here was that evidence that somebody who suffers from
       adjustment disorder with mixed emotions and post
       traumatic stress disorder would react in the way that
       the defense presented.


                                17
United States v. Sullivan, No. 10-0383/MC


M.R.E. 403.   Appellant had the opportunity to make his

case, the military judge stating on at least three

occasions that if the defense was able to produce evidence

that would demonstrate a connection, he would revisit the

topic.   In short, the military judge treated the relevance

and balancing determinations with the care necessary to

uphold the accused’s constitutional rights while also

protecting the privacy of the victim and did not abuse his

discretion in doing so.5   Therefore, we are satisfied that

the military judge considered the M.R.E. 403 factors and

the probative value of this evidence, and did not abuse his

discretion.

Issue II:   Medication Evidence

     The second issue is related to the first because it

also tests the balance between an accused’s right to

confront witnesses and put on a defense and a witness’s

medical and personal privacy.     It, too, presents a question

of legal and logical relevance as to whether Appellant

demonstrated a sufficient nexus between his proffered




5
 See United States v. Collier, 67 M.J. 347, 353 (C.A.A.F.
2009) (to constitute an abuse of discretion, a military
judge’s ruling “must be more than a mere difference of
opinion; rather, it must be arbitrary, fanciful, clearly
unreasonable, or clearly erroneous” (quotation marks
omitted)).


                                18
United States v. Sullivan, No. 10-0383/MC


evidence regarding EM’s past use of medication and a fact

or issue at trial.

     The defense sought to introduce evidence of EM’s

prescribed medications history prior to 2007, in particular

during the years 2002, 2003, and 2005.   The defense argued

that it was necessary to show why Appellant told the

bystanders that EM had “missed her medication” as an

explanation for her behavior on the day of the incident.

Appellant argues that because he was aware of EM’s prior

medication, he might reasonably have thought she was still

on medication at this later time.   In the alternative,

Appellant argues that trial counsel opened the door to this

evidence by eliciting testimony that EM was not on

medication at the time of the incident, and thus the

military judge abused his discretion in excluding the

evidence.

     As with the first issue, the military judge excluded

this evidence based on a lack of logical relevance.    The

military judge found that there was no evidence on the

record that showed that EM was on medication at the time of

the incident.   Neither was there evidence before the court

that Appellant believed EM to be on medication in September




                              19
United States v. Sullivan, No. 10-0383/MC


2007.6    To the contrary, the record contained EM’s testimony

that she was last on medication in 2003.      Moreover, EM’s

testimony is consistent with Dr. McMichael’s testimony

during the Article 39(a), UCMJ, session that EM had not

been on medication for a number of years -— he testified

that his last prescription for EM was in 2005.

        Thus, in our view, the military judge correctly

determined that Appellant’s statements at the scene that EM

needed her medication, made inquiry about EM’s use of or

lack of medication in 2007 relevant.      But it did not make

her history of medication in prior years relevant, absent

some showing that such prior medication would affect her

ability to perceive events or tell the truth at a later

time.

        Evidence of a witness’s psychological state is

properly excluded if it did not affect her “ability to

perceive and tell the truth.”    United States v. Butt, 955

F.2d 77, 83 (1st Cir. 1992).    Conversely, it should be

admitted if it relates to the witness’s ability to perceive

events and testify accurately.       United States v. Lindstrom,

698 F.2d 1154, 1165-66 (11th Cir. 1983).7      As with Issue I,


6
  The lower court noted this as well. 2010 CCA LEXIS 19, at
*8, 2010 WL 520821, at *3.
7
   In Lindstrom, “medical records showed that a government
witness had manipulated the results of a medical test and


                                20
United States v. Sullivan, No. 10-0383/MC


the problem here is one of establishing a sufficient nexus

to satisfy the requirements of M.R.E. 401 and especially

M.R.E. 403.

     In Butt, the witness had attempted suicide and been

hospitalized; her hospital records revealed diagnoses of

“splitting,” “hysteroid dysphoric,” and “borderline

personality disorder.”   955 F.2d at 80.   Nevertheless, the

United States Court of Appeals for the First Circuit

affirmed the trial court’s decision to exclude her mental

health records as “not relevant to her veracity” because “a

tighter logical nexus was necessary to justify the

introduction of such personal and potentially stigmatizing

material.”    Id. at 83-84.   Similarly, in the words of the

military judge in the present case, “The girl is 17 years

old and everyone’s been on medication.”

     Appellant retained a number of avenues through which

to attack EM’s credibility, which he did.    For instance,

defense counsel introduced testimony of MP, a former friend

of EM, and her mother DJ, who testified to EM’s lack of

truthfulness and implied that she had fabricated her

testimony.    Ultimately, however, Appellant failed to


woven an ‘intricate fabrication’ to explain it, that the
witness ‘chronically misinterpreted the words and actions
of others,’ and that she exhibited ‘pseudoneurotic
schizophrenia with marked paranoid trends.’” Butt, 955
F.2d at 83 (quoting Lindstrom, 698 F.2d at 1164-65).


                                21
United States v. Sullivan, No. 10-0383/MC


establish a sufficient nexus between his statement and

inquiry into EM’s prior medical history and records or

prescriptions to survive the balancing test provided in

M.R.E. 403.   The military judge did not abuse his

discretion in restricting the admission of evidence of EM’s

self-mutilation, suicide ideation, or past use of

medication.

                          CONCLUSION

     The decision of the United States Navy–Marine Corps

Court of Criminal Appeals is affirmed.




                              22
United States v. Sullivan, No. 10-0383/MC


     EFFRON, Chief Judge, with whom ERDMANN, Judge, joins

(dissenting):

     In a contested trial, a court-martial panel convicted

Appellant of offenses against his minor cousin, EM, including

assault consummated by a battery, carnal knowledge,

communicating a threat, and kidnapping.   The evidence against

Appellant regarding the details of the charged offenses

consisted primarily of the testimony of EM.   The prosecution

also offered corroborating evidence, including the testimony of

persons who observed Appellant and EM in the aftermath of the

incident forming the basis for most of the charged offenses.

The prosecution sought to demonstrate that Appellant had

attempted to deceive the witnesses to the subsequent events in

order to shield himself from potential charges.

     At trial, the defense vigorously challenged the

prosecution’s case, contending that the allegations had been

fabricated by EM.   In support of that position, the defense

sought to introduce evidence demonstrating EM’s motive to lie.

In addition, the defense sought to introduce evidence in

rebuttal of the prosecution’s claim that Appellant had lied

about EM’s medical situation in the aftermath of the incident.

The military judge restricted Appellant in presenting both forms

of evidence.    The majority concludes that the military judge did
United States v. Sullivan, No. 10-0383/MC


not err in either respect.      For the reasons set forth below, I

respectfully dissent.



         I.   THE COMPETING THEORIES OF THE PARTIES AT TRIAL

                        A.    OPENING STATEMENTS

       The prosecution, in its opening statement, told the members

that the evidence would show that Appellant drove EM “to his

Officer-In-Charge’s [OIC’s] house on board Camp Pendleton.        And

in that house, he attempted to force her to perform oral sex on

him.   When she refused, he assaulted her repeatedly, confined

her wrongfully in that house, and threatened her life.”        Trial

counsel also contended that Appellant had sexual intercourse

with EM two years prior to the Camp Pendleton incident, while EM

was fifteen years old.       The prosecution stated that these

charges would be supported “first and foremost” by EM and that

her testimony would be supported by witnesses from near the Camp

Pendleton home and law enforcement officers who responded to the

event.

       The defense, in its opening statement, contended that the

case was “about lies made by an emotionally disturbed teenager,

seeking attention.”    Counsel described EM as having a lot of

troubles in her life and noted that she had first begun

receiving psychological treatment in 2002.         As late as March

2007, six months before the accusations were made against


                                     2
United States v. Sullivan, No. 10-0383/MC


Appellant, she had received psychological treatment because,

“she wanted to kill herself, and she had been cutting herself.”

      The defense asserted that on the day in question Appellant

and EM had agreed to see a movie.      Before going to the movie,

Appellant wanted to check on his OIC’s home and take care of the

dogs, since he was house-sitting for the warrant officer.     While

Appellant was taking care of the dogs, EM went to the bathroom.

EM allegedly grabbed a knife owned by the OIC and threatened to

kill herself.     Appellant was surprised but wrestled the knife

away from EM, who was having an “emotional breakdown” and

repeatedly telling Appellant to get away from her.     Appellant

tried to settle her down and when he thought she was calmed down

enough he tried to take her back to her mother.     Rather than get

into Appellant’s car, EM wandered down the street in “an

emotional frenzy” collapsing in a nearby lawn.

             B.    TESTIMONY ABOUT THE CHARGED OFFENSES

1.   Testimony by EM on direct examination

      The prosecution called EM as its primary witness.     At the

time of the trial, in 2008, she was seventeen years old.     EM

testified she had known appellant for seven or eight years and

that he had lived with her family in the past.     EM stated that

Appellant compelled her to have intercourse with him in 2005,

but she did not tell anyone at the time of this event.     EM then

described a separate incident in September 2007, which began


                                   3
United States v. Sullivan, No. 10-0383/MC


when she reluctantly agreed to go to a movie with Appellant

after he threatened EM with harm to her family.

        She testified that after Appellant picked her up in his

car, they did not go to the movie.     Instead, Appellant told her

that “he had to go to Camp Pendleton to feed his boss’s dogs.”

After arriving at the house in Camp Pendleton, EM repeatedly

requested that they leave and Appellant grew increasingly angry.

At some point EM attempted to leave through the front door, when

Appellant allegedly attacked her by grabbing her clothes and

pulling her onto the couch.    According to EM’s testimony,

Appellant lowered his shorts and attempted to force her head

towards his penis.    EM got loose and headed for the front door

again.    Her testimony detailed a struggle with Appellant in

which Appellant allegedly choked her, threatened her with a

knife, and struck her.    After striking her, Appellant allegedly

asked her to get in his car and promised that he would take her

to her mother and that she would never hear from him again.       EM

testified that she did not believe Appellant, but agreed to go

along with him.    When they got outside to Appellant’s car she

ran, eventually collapsing when a woman asked her if she needed

help.

        The prosecution also elicited testimony from EM that she

was not on medication on the day in question, and she testified

that she had not been on medication since 2003.    EM stated that


                                   4
United States v. Sullivan, No. 10-0383/MC


she believed Appellant told the witnesses that she was on

medication in an attempt to make her appear “naturally

unstable.”


2.   Restrictions on the defense cross-examination of EM

      During cross-examination, defense counsel attempted to ask

EM questions about her past trauma, psychological condition and

self-mutilation.   Trial counsel objected.   In the ensuing

hearing before the military judge under Article 39(a), UCMJ, 10

U.S.C. § 839(a), defense counsel offered the following

explanation for cross-examination of EM:

      Sir, on direct examination, the government was asking
      questions about her state of mind. They’ve asked if
      she has been prescribed medication. . . . This goes to
      whether Corporal Sullivan’s belief that she was on
      medication was reasonable or not.

Counsel added that the cross-examination would “show the members

why [the defense] theory of the case [was] reasonable.”    The

military judge rejected the defense position, stating that the

prosecution had not “opened the door” to this line of

questioning.   The military judge added that he did not “see the

relevance of talking about her psychological issues.”

      The defense then sought to address the issue of self-

mutilation, explaining the defense theory “that this young lady

picked this knife up and she tried to injure herself.”     Defense

counsel contended, “That is how she got injured.   And there is



                                 5
United States v. Sullivan, No. 10-0383/MC


evidence that she -- ”    The military judge interrupted and

stated that the defense had not presented that theory earlier in

the trial, and that merely mentioning the theory did not mean

that the defense was entitled to discuss the matter.   The

military judge asked defense counsel to articulate why self-

mutilation in 2003 would be relevant to the circumstances of the

charged events in 2007.   Defense counsel noted that EM had

stated during the pretrial hearing under Article 32, UCMJ, 10

U.S.C. § 832, that her last self-mutilation occurred in 2005,

and there was evidence of self-mutilation in 2007.   The defense

stated that it wanted to confront the witness with statements

made to her psychologist as a means of addressing credibility.

The defense also wanted to contrast the evidence of self-

mutilation with her testimony denying any suicidal tendencies.

     In response to the military judge’s questions about the

relevance of this evidence, defense counsel offered two reasons:

     [One:] Our entire theory of the case is that this
     entire event occurred because she was having suicidal
     ideations. She picked up the knife and was going to
     cut herself, number one. So it goes to [Appellant’s]
     right to compulsory process.

     Number two, it is relevant to show that at the Article
     32 these matters were brought up, and she testified
     falsely about them.

In support of this view, defense counsel pointed to conflicts

between EM’s testimony during the pretrial Article 32 hearing

and other statements by EM, as reflected in a medical report


                                  6
United States v. Sullivan, No. 10-0383/MC


from EM’s psychologist.   The military judge ultimately concluded

that the evidence was neither inconsistent nor relevant, and

that in any case should be excluded under M.R.E. 403 as likely

to confuse the members.

      During the subsequent cross-examination of EM, defense

counsel asked a number of questions about inconsistencies in

EM’s testimony.   The cross-examination indicated that EM had

told one investigator that she had been raped by Appellant four

times, while providing different numbers to other individuals.

During cross-examination, the defense also was able to establish

that EM had acknowledged, during the pretrial Article 32

investigation, that she had made a false statement to one of the

law enforcement investigators.



3.   The prosecution’s evidence concerning developments in the
     aftermath of the charged offenses


      a.   The witnesses who observed Appellant and EM

      To corroborate EM’s allegations, the prosecution offered

the statements of a number of witnesses regarding events that

occurred in the immediate aftermath of the incident forming the

basis for the charged offenses.   Ms. Eileen Taylor testified

that she was walking her two young children near the home of

Appellant’s supervisor when she observed a girl, EM, “walking

down the street, sort of mumbling to herself.”   Ms. Taylor


                                  7
United States v. Sullivan, No. 10-0383/MC


stated that EM said that she was “looking for her mother” and

that EM looked “out of sorts, like she needed some help.”     EM

collapsed onto a lawn when Ms. Taylor asked if she was okay.

Ms. Taylor, a registered nurse, went to assist EM.    She

described EM as having a swollen lip, hyperventilating, being

“terrified” and “a little bit disoriented.”

       While Ms. Taylor was assessing EM, other neighbors began to

arrive on the scene.   One of these neighbors testified that EM’s

emotional state was “[c]ompletely looped” and that she was

“breathing heavy, eyes were rolling in her head, tears were

going down her face.   She was asking for her mom.”   The neighbor

also stated that EM had a “fat lip” and “a red mark on the right

side of her neck.”   All of the neighbors testified that after

Appellant arrived at the scene, he endeavored to get EM into his

car.

       The witnesses also testified that Appellant made a

statement about EM’s condition.   Specifically, they testified

that Appellant told them that EM had missed her medication.    EM

told at least one of the witnesses that she was not on

medication.

       The witnesses testified that EM refused to go with

Appellant.    They further testified that EM told them that

Appellant would hurt her.




                                  8
United States v. Sullivan, No. 10-0383/MC


     One of the witnesses, Lt. Col. Maney, took informal control

of the situation.   He testified that when he arrived on the

scene, EM was “pretty much incoherent.”   He also observed

Appellant standing nearby on his cell phone with his car parked

in the middle of the road.   Lt. Col Maney described Appellant

as, “trying to -- like anybody would if they were on [sic] a

situation in base housing, trying to get her in the car, and

let’s just move on, let’s move on from the scene.”

     After EM refused to get in the car with Appellant, Lt. Col.

Maney suggested that Appellant call EM’s mother.   Appellant

dialed the number and handed the phone to Lt. Col. Maney.    When

EM’s mother told Lt. Col. Maney that EM was not on any

medication, he decided that the situation was “out of [his]

hands” and called the Provost Marshal’s Office.    Lt. Col. Maney

testified that Appellant was cooperative and polite throughout

the scene at base housing.   He also testified that EM’s mother

became very emotional when he asked about EM’s medication.

     b.   The testimony of EM’s mother

     On direct examination of EM’s mother, the prosecution asked

if EM had said anything about medications during the phone

conversation between EM and her mother while EM was on the lawn

in base housing.    When defense counsel objected, the prosecution

indicated that the testimony would demonstrate that Appellant

had sought to transform his crime into a benign incident by


                                  9
United States v. Sullivan, No. 10-0383/MC

fabricating an explanation.    According to the prosecution, the

testimony from EM’s mother would show that Appellant had lied to

the other witnesses and that he “was trying to extract [EM] from

the situation by saying that she was on medications when she was

not.”    The military judge did not rule on the defense objection,

but EM’s mother was permitted to testify that EM was not on

medication on the day in question.

        When the defense attempted to pursue the relationship

between the testimony of EM’s mother and the credibility of

Appellant’s statements in the aftermath of the incident, the

prosecution objected.    The prosecution asserted that questions

concerning EM’s prior use of medications did not involve

evidence relevant to the case.    In response, defense counsel

noted that the prosecution had interjected into the case the

link between EM’s prior use of medication and the assertion that

Appellant had fabricated an explanation for the incident.       The

defense expressed concern that the prosecution, in its closing

statement, would rely on the asserted false statement by

Appellant.

        The military judge noted the defense point, stating:

        I guess the point here is: That standing alone. It
        could look like he’s making this up out of the clear
        blue as some story to tell these people that are all
        around her. If he had it in his head -- if he knew
        she had been on medication, whatever, six months ago
        or something, then this might go to show that he had



                                  10
United States v. Sullivan, No. 10-0383/MC

     some knowledge that she had been on medication.    This
     wasn’t fabricated.

     In response to the military judge’s question as to the

details that the defense would try to elicit, defense counsel

responded:

     The government wants to have their cake and they want
     to eat it too. They want to introduce [Appellant’s]
     statement that she’s on medication. Then they want to
     prevent me from arguing that, and then argue to the
     jury that my client is a liar and he was trying to
     completely fabricate the story.

     They opened the door. I didn’t ask that witness that
     question on direct. He opened the door. I want to
     ask well, when was your daughter prescribed medication
     then, if she ever was?

     The military judge indicated that he would allow the

defense to ask a single question as to whether EM had ever been

on medication.   Upon further objection from the prosecution, the

military judge limited the time frame of the question to

medication use within a year of the September, 2007, event.

Ultimately the military judge sustained the objection to the

defense counsel’s general question:    “Was [EM] ever prescribed

medication in the past?”   The military judge concluded that such

questions would confuse the members:   “The girl is 17 years old

and everyone’s been on medication.    I’m just not going to allow

it at this point.”   The military judge left open the issue for

the defense case-in-chief but no further questions were asked




                                11
United States v. Sullivan, No. 10-0383/MC

concerning EM’s medication use or psychological history during

cross-examination.



4.   The testimony proffered by the defense concerning EM

      During its case-in-chief, the defense sought to present

testimony from Dr. Herbert McMichael who provided psychological

services to EM.    The defense contended that testimony would

provide evidence concerning the source of EM’s injury as well as

her motive to fabricate.

      In a session before the military judge under Article 39(a),

the parties discussed the relevance of the proposed testimony.

Defense counsel stated that the testimony would provide

information concerning EM’s history of suicidal ideation and

self-mutilation.   In addition, the defense stated that the

evidence would show that EM’s condition had been a source of

conflict between EM and her mother, and that consideration had

been given to placing EM in a facility for residential

treatment.   Counsel argued that the evidence would show that EM

had a variety of motives to fabricate the allegations against

Appellant, including a desire to gain sympathetic attention from

her mother, and a fear of her mother’s reaction if she knew that

EM had engaged in further attempts at self-mutilation.

      During the Article 39(a) session, Dr. McMichael stated that

he had met with EM an average of seven times per year from 2002-


                                 12
United States v. Sullivan, No. 10-0383/MC

2007.    He stated that EM had a long history of suicidal ideation

going back to at least 2002 when EM first started receiving

treatment.    He described suicidal ideation as part of the

continuum of suicidal thought and behavior, with suicidal

ideation at one end of the continuum, while forming a suicidal

intent or plan would be further along the spectrum.     According

to Dr. McMichael’s testimony, EM’s last reported suicidal

ideation occurred in March, 2007.

        Dr. McMichael also discussed EM’s history of self-

mutilation.    Dr. McMichael distinguished self-mutilation from a

suicide attempt, and described it as a dysfunctional coping

skill.    “The agony that a person is experiencing, they’re

depressed, they’re anxious, they feel in their chest, they think

it and process it in their head.”      The physical cutting “reduces

the psychological pain that the person is having.”     Dr.

McMichael told the military judge that although the primary

focus of self-mutilation involves a form of control, it also can

have a secondary effect in terms of gaining attention.       His

testimony described two major periods of self-mutilation by EM,

occurring in 2005 and early 2007, and he indicated that there

had been earlier self-mutilation.

        Dr. McMichael said that he had discussed the possibility of

hospitalization with EM’s mother during the 2005 period of self-

mutilation.    He said that EM’s mother was “open to the idea, but


                                  13
United States v. Sullivan, No. 10-0383/MC

she really wasn’t keen on the idea.”   In his report, Dr.

McMichael noted, “Mom realizing the need to consider alternative

interventions for client including residential placement.”    At

that time, Dr. McMichael also discussed a “no suicide contract”

with EM, which is an approach used when the doctor feels

concerned that someone is “moving into the direction of high

risk.”    This is essentially a stated commitment by the patient

to contact the doctor if personal thoughts turn to committing

suicide; the commitment to the agreement itself is part of

suicide prevention.    In March, 2007, the medical records

indicated that EM was at moderate suicide risk.

     In describing EM’s family dynamic, Dr. McMichael testified,

“Well, there was a theme that’s emerged on and off throughout

[EM]’s life.   Not feeling special enough to her mom, and when

her mom gives someone else attention, it is upsetting for [EM].”

He further noted that EM had a “love/hate” relationship with her

siblings and her mother.   “Always competing for position in the

family.   Always competing for attention and affection.   Always

overly sensitive to being rejected by anybody in the family.”

Elsewhere he offered the following description of EM:     “This is

a child who early in life was violated by numerous people and

she never internalized a feeling of security and safety that a

family can provide.”   He continued, “She is always looking over

her shoulder expecting something scary or bad to happen.”    Dr.


                                 14
United States v. Sullivan, No. 10-0383/MC

McMichael noted the complexity of the family dynamic by stating

that “they’re always putting each other down and at the same

time they’re wonderfully supportive of one another.”   He also

testified that EM’s mother had started to take care of two more

of EM’s cousins, noting that while EM appeared to enjoy

interacting with her cousins, it signaled reduced attention from

her mom.

     In describing EM’s underlying psychological condition, Dr.

McMichael noted EM’s recent improvements in the months prior to

the charged offenses.   He added, however, EM’s mental condition

was like a “volcano” and pressure could build up at any time.

He stated that EM’s condition “cycles from mild to acute and

from active to delayed.”   He explained that a trauma has a

lasting psychological impact, “[s]o that the trauma that took

place . . . [fifty] years ago is no less significant than the

trauma that took place one year ago.”   Dr. McMichael also

testified that in treating EM, he looked for “[t]riggers of

depression.”   He further noted that during the summer of 2007 EM

appeared the healthiest of her time in treatment.   In response

to a question from the military judge concerning the events of

September 2007, Dr. McMichael testified that, “[t]here were no

triggers prior to that event that would lead [him] to believe

that [EM] would be wanting to hurt herself.”   He subsequently

noted that individuals with EM’s problems would be prone to


                                15
United States v. Sullivan, No. 10-0383/MC

depression on holidays, birthdays, and anniversaries of deaths.

He testified that times of celebration would remind EM of family

members who were not there anymore but also expressed particular

concern for anniversaries of deaths, such as the October 2003

death of EM’s sister.   He noted that any of these events could

serve as triggers.   The defense had previously elicited

testimony that EM’s birthday occurred the day prior to the

alleged events in the Camp Pendleton home.

     During the Article 39(a) session, Dr. McMichael also

described EM’s history regarding usage of medication.   The

record is not clear on the time lines for specific medications,

but the doctor testified that he prescribed two different

psychiatric medications at different periods of time.   He noted

that her last prescription occurred in 2005.   Dr. McMichael

testified that EM had never been compliant:    “She would take

them for a little while and then she wouldn’t take them.”

     After the proffered testimony, defense counsel explained

that they wanted to introduce this testimony as evidence of

self-mutilation, suicidal ideation, and EM’s family dynamic.

Defense counsel presented two theories of relevance for this

particular testimony.

     Under the first theory of relevance, the defense sought to

demonstrate that EM may have been the source of the injuries

that occurred inside the house at the time of the charged


                                16
United States v. Sullivan, No. 10-0383/MC

offenses.   The military judge asked if there was any other

evidence in the case, outside of the proffered testimony, that

EM was the source of the injury.     Defense counsel stated that

there was no other evidence that EM had inflicted the injuries

on herself, but noted that the source of the injuries was an

issue in dispute in the case.

     Under the second theory of relevance, the defense cited the

issue of whether EM had a motive to fabricate.    The defense, in

its written submission, referred to the issue of whether EM had

a motive to fabricate the allegations in order to avoid possible

hospitalization resulting from her actions in the house.    During

the Article 39(a) hearing, defense counsel also argued that EM

had a motive of gaining attention.    Specifically, counsel noted

that EM had four brothers and sisters and that she competed with

them for her mother’s attention.     Dr. McMichael had described

this as a recurring theme in her treatment, and defense counsel

argued, “[w]hat better way to get attention from your mother

than to say my cousin raped me and assaulted me.”    Defense

counsel also argued that the proffered testimony should be

viewed in the context of other evidence impeaching EM’s

credibility, including a defense witness who testified that EM

had admitted to lying about events.    Counsel noted that in view

of this evidence of falsehood, the defense needed “to present to

the members why she’s being untruthful.”    Defense counsel noted:


                                17
United States v. Sullivan, No. 10-0383/MC

      [O]ur theory of the case is that she is attention
      starved. She wants the attention from her mother.
      She loves the attention from Dr. McMichael. And
      interestingly enough, Dr. McMichael said, [w]ell you
      know what, the self-mutilation, secondarily could be
      to get attention from her mother. That is our theory
      of the case. And it is not unreasonable.

The defense contended that exclusion of this evidence would

violate the right to confrontation and compulsory process.

      The military judge ruled against the defense, prohibiting

the introduction of any evidence of EM’s mental health issues.

The restrictions imposed by the military judge precluded

testimony from Dr. McMichael as well as further examination of

EM.   The military judge stated that “at no point was there a

fragile theory of bias presented.”    The military judge further

noted that the proffered evidence “had very low probative value”

and because there was a risk of confusing the panel, the

evidence would be excluded under M.R.E. 403.



                          II.   DISCUSSION

      The right to confront and cross-examine witnesses and to

call witnesses on one’s own behalf constitute the essential

components of due process in a criminal trial.   U.S. Const.

amend. VI; Chambers v. Mississippi, 410 U.S. 284, 294 (1973).

The right of confrontation under the Sixth Amendment includes

the “constitutionally protected right of cross-examination.”

Davis v. Alaska, 415 U.S. 308, 316-17 (1974).    Cross-examination


                                 18
United States v. Sullivan, No. 10-0383/MC

allows the accused to “expose to the jury the facts from which

jurors . . . could appropriately draw inferences relating to the

reliability of the witness.”   United States v. Collier, 67 M.J.

347, 352 (C.A.A.F. 2009) (omission in original) (quoting Davis,

415 U.S. at 318).   Military Rule of Evidence (M.R.E.) 608(c)

“allows for evidence to show bias, prejudice, or any motive to

misrepresent through the examination of witnesses or extrinsic

evidence.”    United States v. Moss, 63 M.J. 233, 236 (C.A.A.F.

2006).   “The partiality of a witness . . . is always relevant as

discrediting the witness and affecting the weight of his

testimony.”   Id. (quoting Davis, 415 U.S. at 316) (omission in

original) (quotation marks omitted).   The weight and credibility

of a witness’s testimony are issues for the members of the panel

to decide.    United States v. Bins, 43 M.J. 79, 85 (C.A.A.F.

1995).

     The military judge may place reasonable limits on cross-

examination to avoid problems such as unfair prejudice,

harassment, and repetitive or only marginally relevant

interrogation.   See Collier, 67 M.J. at 353 (quoting Delaware v.

Van Arsdall, 475 U.S. 673, 679 (1986)).   Under M.R.E. 403, the

military judge may exclude relevant evidence “if its probative

value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the members,




                                 19
United States v. Sullivan, No. 10-0383/MC

or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.”

     On appeal, the first granted issue addresses the military

judge’s exclusion of evidence concerning EM’s prior mental

health history, focusing on the relationship of the proffered

evidence to the defense theory that EM had a motive to

fabricate.    The second granted issue concerns the exclusion of

evidence which the defense sought to introduce in rebuttal of

the prosecution’s claim that Appellant lied to witnesses

regarding EM’s use of medication in order to protect himself

from punishment.

             A.   ISSUE I: EXCLUSION OF EVIDENCE CONCERNING THE
                  COMPLAINANT’S MOTIVE TO FABRICATE

     Under M.R.E. 608(c) a defendant has the right to present

evidence which shows bias, prejudice or a motive to lie.     In

this case EM and Appellant were the only two people present

during the circumstances constituting the charged offenses.

The other witnesses presented by the prosecution arrived on the

scene in the aftermath of those circumstances.     In that context,

the credibility of EM formed a critical component of the

prosecution’s case.

     The majority contends that Appellant did not establish the

relevance of the evidence at trial.     I respectfully disagree.

Defense counsel at trial set forth two viable grounds for



                                   20
United States v. Sullivan, No. 10-0383/MC

presenting the court-martial panel with information concerning a

motive to lie.    First, the proffered evidence showed that EM was

a troubled young woman with dysfunctional coping skills whose

psychological problems involved a competition for the attention

of her mother.    Defense counsel sought to introduce evidence

that would enable the court-martial panel to consider whether

fabricating a rape and assault allegation provided a means of

getting attention from her mother.

        Second, the defense sought to introduce evidence that would

permit the court-martial panel to consider whether EM had a

motive to lie based upon fear of hospitalization if her mother

found out that she had another episode of self-mutilation.    To

support this theory the defense proffered evidence that EM’s

mother had reluctantly considered residential treatment in the

past.    The majority concludes that the evidence was not relevant

because the defense did not show that EM had a contemporaneous

fear of hospitalization or that the mother contemplated

hospitalization in the future.    Those matters go to weight, not

relevance.    The defense proffered evidence of past contemplation

of hospitalization based upon self-mutilation.    The evidence was

not so remote in either time or detail as to be irrelevant or

otherwise excludable under M.R.E. 403.    The responsibility for

assessing EM’s credibility in light of that evidence rested with

the members, a function that they could not perform due to the


                                  21
United States v. Sullivan, No. 10-0383/MC

exclusion of the evidence by the military judge.   See Bins, 43

M.J. at 85.

     The military judge compounded the error by prohibiting the

defense from questioning EM about the possibility that her

wounds were caused by self-mutilation unless the defense could

produce additional evidence that EM was the source of her own

injuries.   EM was the only prosecution witness to provide direct

testimony about the details of the charged offenses.   In that

context, the military judge erred by prohibiting the defense

from asking a person with a history of cutting herself the

questions pertinent to whether her injuries on the day in

question could have resulted from yet another incident of self-

mutilation.

     The exclusion of the evidence constituted prejudicial

error.   The defense, through other evidence, directly challenged

EM’s credibility by showing that she had made statements

pertinent to the proceedings that were inconsistent and perhaps

untruthful.   The military judge’s rulings, however, meant that

the defense could not place those matters in proper context.     If

the defense had been able to explore EM’s motive to lie, a

reasonable panel might have reached a different conclusion about

EM’s credibility.




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United States v. Sullivan, No. 10-0383/MC

         B.   ISSUE II:   THE EVIDENCE OF PRIOR MEDICATION

     The prosecution opened the door to the discussion of

medication when it accused Appellant of lying to the other

witnesses about EM needing medication.   The prosecution’s

reference to Appellant’s statement was neither inadvertent nor

incidental.   The prosecution first referred to Appellant’s

comment in its opening statement, asserting that on the day in

question EM was not on medication.    The prosecution repeatedly

elicited testimony about Appellant’s statement and EM’s claim

that she was not on medication from virtually every witness

presented during the prosecution’s case-in-chief.   EM testified

that she believed that Appellant had told people that she was on

medication to make her seem unstable.    In closing, trial counsel

focused on Appellant’s statement and told the panel:

     The accused lied about her being on medication. He
     lied . . . because [EM] was not on medication. You
     heard that from [EM] herself, and you heard it from
     her mother. She was not on any medication that day.
     This is a lie concocted by the accused to extract her
     from that situation so that he would not get caught.

The prosecution presented Appellant’s statement as a lie to

protect himself.   The military judge recognized that in the

absence of additional information it would appear that Appellant

had made the story up out of the blue, but nonetheless the

military judge refused to allow Appellant to respond to this

assertion.



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     If not excluded by the military judge, there would have

been sufficient evidence on the record for the members to

consider whether Appellant had a reasonable basis for believing

that EM’s behavior on the day of the charged incident resulted

from medication.   The record contained evidence that Appellant

was related to EM’s family and that he had lived for a time in

the family household.   Dr. McMichael testified that EM’s

psychological problems had been ongoing since 2002.   He further

testified that he had last prescribed medication in 2005, which

would have called into question EM’s testimony that she had last

been on medication in 2003.   Dr. McMichael also noted that EM

had been non-compliant with regard to the medication, taking it

properly at some points and not taking it at other times.    The

issue of when EM was last on medication goes to weight not

relevance.   The proffered testimony made clear that EM had been

on medication for a period of time spanning years.    In light of

that evidence, the responsibility for deciding whether Appellant

had a reasonable belief that EM was taking medication in the

period close to the incident, and that he believed her behavior

resulted from failure to adhere to a medication regime, rested

with the members, not the military judge.   Allowing the

prosecution to repeatedly brand Appellant’s statement as a lie,

while simultaneously precluding him from introducing evidence




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United States v. Sullivan, No. 10-0383/MC

showing a basis for that statement, constituted prejudicial

error.



                        III.   CONCLUSION

     The military judge committed prejudicial error by

precluding Appellant from presenting evidence and engaging in

cross-examination pertinent to the credibility of the only

person who testified as to the details of the charged offenses.

I would set aside the findings and sentence and authorize a

rehearing.




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