

   
   
   
   U.S. v. Eggen



United States, Appellee
v.
Kerry S. EGGEN, Senior Airman
U.S. Air Force, Appellant
 
No. 98-0502
Crim. App. No. 32541
 
United States Court of Appeals for the Armed
Forces
Argued April 13, 1999
Decided July 30, 1999
CRAWFORD, J., delivered the opinion of the
Court in which
COX, C.J., and SULLIVAN and EFFRON, JJ.,
joined. GIERKE, J.,
filed an opinion concurring in part, dissenting
in part, and
concurring in the result.

Counsel
For Appellant: Major Margo Stone Newton
(argued); Colonel Douglas H. Kohrt (on brief); Colonel Theodore
J. Fink.
For Appellee: Captain Martin J. Hindel
(argued); Colonel Anthony P. Dattilo and Major Ronald A. Rodgers
(on brief).
Military Judge: Michael G. McCormack
 


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
by officer and enlisted members of forcible sodomy, in violation of Article
125, Uniform Code of Military Justice, 10 USC § 925. He was sentenced
to a dishonorable discharge, 9 years confinement, total forfeitures, and
reduction to the lowest enlisted grade. The convening authority approved
only so much of the sentence as provided for a dishonorable discharge,
confinement for 1 year, total forfeitures, and reduction to the lowest
enlisted grade. The Court of Criminal Appeals affirmed the findings and
sentence in an unpublished opinion on January 28, 1998. We granted review*
of the following issues:



I. WHETHER APPELLANTS SUBSTANTIAL RIGHTS
WERE PREJUDICED WHEN A GOVERNMENT EXPERT COMMENTED ON THE ALLEGED VICTIMS
CREDIBILITY.
II. WHETHER THE MILITARY JUDGE ERRED TO THE
SUBSTANTIAL PREJUDICE OF APPELLANT BY ALLOWING A GOVERNMENT EXPERT TO TESTIFY
WITHOUT MEETING THE FOUR-PART TEST OF ADMISSIBILITY OF EXPERT TESTIMONY.



We affirm the decision of the Court of Criminal
Appeals for the reasons set forth below.

FACTS  ISSUE I
Some facts related to the offense are required
to place this issue in context. Appellant was charged with forcible sodomy
on a Sergeant (Sgt.) W, United States Marine Corps. The act had allegedly
occurred following a night where both appellant and Sgt. W had consumed
a large quantity of alcohol. W fell asleep and was awakened to find appellant
performing fellatio on him.
Appellants defense from the beginning was
that the sexual act was drunken, but consensual. He further suggested that
Sgt. W was lying to protect himself from being discovered as a homosexual
and being separated from the military. Thus, the case centered on the credibility
of the victim.
Major (Dr.) Claire Woods, Chief of Mental Health
and
Psychiatric Evaluation at Misawa Air Base,
Japan, testified that she had counseled Sgt. W as a walk-in patient. Sgt.
W sought help in coping on a day-to-day basis following the alleged sexual
assault.
Trial defense counsel cross-examined Dr. Woods
at some length about her conversations with Sgt. W. Defense counsel first
focused on the inconsistencies between what Sgt. W told Dr. Woods and statements
he had made to investigators of the Air Force Office of Special Investigations
and counselors at the Family Advocacy Center. Defense counsel then turned
to the question of whether Sgt. W may have been "faking" his emotional
state when he visited Dr. Woods:

Q: You stated that Sergeant [W] was very
emotional when he came in to see you?
A: Yes.
Q: Do you agree that sometimes people can fake
emotions?
A: Yes.
Q: And people can fake their emotions for a
variety of reasons?
A: Yes.
Q: They can fake an emotional state of anxiety
or whatever when they come to see you, isnt that correct?
A: Yes.
Q: So, isnt it a possibility that Sergeant
[W] was faking his emotional state when he came to see you?
A: Anything is a possibility.
Q: And you testified earlier that he was having
marital difficulty with his wife, right?
A: Yes.
Q: And you said that if a man was concerned
about his marital difficulties that the fact that it might jeopardize his
career [sic], correct?
A: According to his report, yes.
Q: So, isnt it possible or a good possibility
that behind the emotions that he was showing that day was the fact that
he was concerned about his career, that he was concerned about his marital
difficulties?
A: I think it was very obvious as part of his
presentation was secondary to those [sic].

Defense counsel then engaged Dr. Woods in the
following colloquy:

Q: As far as man and mammals and that type
of thing, homosexuality is not unusual but are not the typical [sic]. Is
that a fair statement?
A: (No response.)
Q: A man is a mammal and in the animal world
there are homosexual acts that go on all the time?
A: Yes.
Q: So, it is not unusual for it to happen to
man?
A: I don't know if unusual would be the word,
but it is not unheard of. Homosexuality is not considered a pathologic
state.
Q: Wouldn't you agree that anxiety or the emotions
that Sergeant [W] displayed could possibly have come from the fact that
he did consent to what happened and that he was embarrassed about what
happened? Is that also a possibility and that is where anxiety stems from
people finding out?
A: All things considered, I think that needs
to be addressed, yes.

On redirect examination, trial counsel asked Dr.
Woods if she had "any indication" that the information Sgt. W gave her
"was false," to which she replied that she did not. He also asked her if
inconsistencies between what Sgt. W had told her and the statement W had
given the investigators would cause her to "change" her mind about his
credibility. Again, she replied that it would not.
Trial counsel then asked Major Woods the following
questions:

Q: Okay. Now, you talked about how people
could fake emotions, correct?
A: Yes.
Q: Now, you saw Sergeant [W] about six to eight
times, right?
A: At least, yes.
Q: And you talked to him for at least an hour
or so each time, right?
A: Yes.
Q: During all those several hours that you
were talking to him, did you feel that you were being faked to?
A: No.
Q: Have you ever had people fake emotions to
you and you would have caught it?
A: Yes.
Q: And that is part of your job as a psychiatrist,
right?
A. Yes.
Q: And, you probably see people talking about
emotions dozens of times a week, right?
A: Potentially, yes.
Q: For the last several years?
A: Yes.
Q: How would you rate yourself in being able
to judge fakers as opposed to people who are telling the truth?
A: I would like to think that I'm pretty good
at picking up people who are telling the truth.
Q: Is that part of your job?
A: Yes.

There was no objection to any of this testimony.
Therefore, if there is error, appellant must demonstrate that the Court
should invoke the plain-error rule. See Mil.R.Evid. 103, Manual
for Courts-Martial, United States (1998 edition).
Appellant now argues that the questions concerning
whether Sgt. W was "faking" his emotions and whether he was being truthful
with Major Woods amounted to an impermissible expert opinion on credibility.
Final Brief at 7-9.
The Government responds that the failure to
object constitutes forfeiture of the issue absent plain error. Answer to
Final Brief at 3. The Government points out that no questions were asked
about Sgt. Ws truthfulness on direct, but that this subject was pursued
on cross-examination. Id. at 4-5.

DISCUSSION  ISSUE I
As to this issue we will address both the plain-error
and invited-error doctrines.
While it is true that these questions required
Dr. Woods to express her opinion, it seems clear that when the testimony
is placed in context, it certainly did not amount to prejudicial plain
error. See United States v. Powell, 49 MJ 460 (1998). If
one were to remove this testimony from the area of mental health, and the
expert being questioned was a neurologist or an orthopedic surgeon, as
to whether the victim were in physical pain or whether he/she were faking
certain physical symptoms, there is no doubt that such a witness could
testify as to those conditions. Furthermore, any potential error from this
testimony was more than cured by Judge McCormack's instructions on expert
testimony. Apparently, he recognized that the testimony of Major Woods,
as well as two other doctors, was susceptible to being interpreted as an
expert opinion on truthfulness. On his own he modified the standard instruction
on credibility as follows:

Now, you are advised also that only you,
the members of the court, determine the credibility of the witnesses and
what the facts of this case are. No expert witness or other witness can
testify that the alleged victim's or witness' account of what occurred
is true or credible. That the expert witness believes the alleged victim
or another witness or that the sexual encounter of the nature charged in
this case occurred in the manner that it did, that is alleged, to the extent
that you believe that any of these witnesses testified or implied that
they believed the alleged victim or another witness or that the crime occurred
in a particular manner, or that the alleged victim or any other witness
is credible, you may not consider this as evidence that a crime occurred
in that manner or that the alleged victim or witness is credible.

Moreover, it was defense counsel who first suggested
that Sgt. W was not being truthful about the symptoms (emotions) he displayed
during Dr. Woods' interviews with him.
In effect, the actions by the defense counsel
opened the door for this examination by the prosecutor. Any error was induced
or "invited" by the defense. United States v. Raya, 45 MJ 251, 254
(1996); United States v. Schnitzer, 44 MJ 380, 384 n.1 (1996) (separate
opinion); United States v. Cacy, 43 MJ 214, 218 (1995). As the court
below noted:



Here the expert's testimony was elicited
by
the defense counsel. On cross-examination
Major Woods testified concerning the victim's
truthfulness and whether it appeared the victim
was faking his emotional state. The trial
counsel
was not precluded from rehabilitating his
expert's
testimony.



Unpub. op. at 4.
The inadmissible evidence was brought before
the members by the defense in this case, not the Government. In Raya,
supra
at 254, the Court stated: "Appellant cannot create error and then take
advantage of a situation of his own making. Invited error does not provide
a basis for relief."
Thus, we hold that there was no prejudicial
plain error and, in any event, any error was invited by the defense.

FACTS  ISSUE II
As to this issue, Major (Dr.) Michael McConnell,
former Chief of the Sex Offender Treatment Program at the Naval Consolidated
Brig, testified for the Government about common reactions of adult male
sexual assault victims. When trial counsel began to qualify Dr. McConnell,
defense counsel stated that he would stipulate that Dr. McConnell was an
expert on adult male sexual offenders and victims.
Again, as with Dr. Woods, trial defense counsel
attempted to utilize Dr. McConnell to advance appellants theory that any
sexual contact had been consensual and that Sgt. W was lying about the
nature of the act. He specifically asked Dr. McConnell, "Isnt it a fair
statement that people can make false statements?" Over trial counsels
objection, Dr. McConnell was permitted to answer this question.
The following colloquy between defense counsel
and Dr. McConnell then ensued:



Q: So, in other words, Sergeant [W] can be
concerned about something and lie to conceal the fact it was consensual?
A: It certainly could be in the realm of possibility.
I guess the sexual offender could lie to conceal an act of the sexual offender.
Q: Well, wouldnt you say that if somebody
had a concern about his career being in jeopardy that he would have some
concerns about lying?
A: I think Senior Airman Eggen definitely has
concerns about his career.
Q: How about Sergeant [W], if he admits that
he consented to a homosexual act, dont you think he is going to get in
trouble with his career also?
A: I think that anyone who consented to a homosexual
act currently would be in trouble with their career.
Q: So, Sergeant [W] has some motive to lie
doesnt he? If he consented to it, then his career is in jeopardy, right?
A: I assume that would be the same for anybody
in that circumstances [sic].
Q: Maybe he had a motive to lie if you not
considered [sic] engaging in a homosexual act and you consented to a homosexual
act then you are concerned that people found out about that homosexual
act, dont you think that someone might want to conceal that and not have
other people find out about it?
A: Well, I think that possibly the greatest
motivation would be not to go to prison. The "would not to go [sic] to
prison" would outweigh his military career.
Q: Do you think an embarrassment of telling
people that you engaged in a homosexual act would personally want to go
to jail [sic]? That Sergeant [W] would rather to go to jail?
A: I dont necessarily assume that because
there are cases where people have willingly come forward in the military
context and acknowledged that they are homosexual.
Q: Theres a lot of them out there havent
been [sic] or came out and said they were a homosexual.
A: I dont know.
Q: Dont you think that somebody who engaged
in a homosexual act would have some concern for his self esteem if other
people found [sic] about it and he is supposed to be a Marine, he is supposed
to be tough? Wouldnt you think he had the motive for lying to cover that
up?
A: If there was someone who participated in
a nonconsensual [sic] homosexual act where they were concerned about their
career and they didnt want to come out of the closet and deal with repercussions,
yeah they might be lying, I guess.
Q: So, in other words there is another reason
why Sergeant [W] could lie to conceal what had actually happened that night?
A: I cant speak to what his reasons might
be but in general I would think either one of those circumstances that
you explained -- Im a little confused about your question.
Q: Im just saying that Sergeant [W] has the
motive to lie. The thing that happened was consensual, he has the motives
to lie because he is concerned about his career, he is concerned about
what other people are thinking and what would you think of [sic] the consequences
would be if you found out a Marine was a homosexual or committed a homosexual
act?
A: For all those reasons, that is why I find
it inconsistent that it was a consensual act.



This line of questioning continued for a number
of pages in the record with defense counsel attempting to establish that
Sgt. W had a motive to lie about the incident.
On redirect examination, trial counsel asked
the following questions:



Q: Doctor McConnell, one question. Isnt
it just as possible that the Accused has a great deal to lose here and
has a very good motive to lie about what happened in that room with Sergeant
[W]?
A: I think that given the facts as I know them,
the Accused has much more to lose. In the context of what I experienced
working with, with folks who perpetrated sexual offenses, some of whom
I saw when they were in prison was [sic] charged and convicted, they did
everything possible to attempt to get out of going to prison or the same
embarrassment for themselves and their families because many of the folks
I worked with in prison who were charged and convicted. . .
DC: Objection. This is dealing with perpetrator
evidence, Your Honor.
TC: Your Honor, the Defense brought it up,
motive to lie.
MJ: Ill allow the witness to continue.
TC: Please continue.
WIT: Even in the context of folks who are already
incarcerated for sexual offenses, who have a lot to lose including their
military careers, ability to remain with their family and support their
family, folks were willing to risk a lot in the context after already been
caught, many of them who were quite open about the extent they went to,
to lie to prevent themselves ending up in prison or losing their families
or losing their military careers. And, for someone who is charged with
the offense that we are addressing here today, there is much more to lose
for that person than I would assume there would be to lose for someone
like Sergeant [W].



When the full extent of Dr. McConnells testimony
is read in context, it seems clear that as with Dr. Woods, the testimony
complained of on appeal was induced by defense counsels cross- examination
which attempted to explore whether Sgt. W was lying in his testimony. Further,
it seems clear that trial defense counsel did not object to the testimony
of Dr. McConnell on the basis that he had exceeded the area of his expertise.
As such, that issue was waived for appeal. See Mil. R. Evid. 103(a)(1).
Finally, as noted with regard to Granted Issue I, Judge McCormack gave
an instruction (quoted above) which defined the proper bounds of expert
testimony for the members and thus precluded any prejudice to appellant.
See
United States v. Powell, supra.
Thus, we hold against appellant.
The decision of the United States Air Force
Court of Criminal Appeals is affirmed.
FOOTNOTE:
* This case was argued at Maxwell
Air Force Base, Montgomery, Alabama, as part of the Court's Project Outreach.
See
38 MJ 136, 137 n.1 (CMA 1993).
 
 
GIERKE, Judge (concurring in part, dissenting
in part, and concurring in the result):
I agree with the majoritys disposition of
Issue I. I disagree with its disposition of Issue II.
I disagree with the characterization of this
case as a credibility battle. Because appellant did not testify, his credibility
was not in issue, and the evidence regarding his motive to lie was irrelevant.
Furthermore, I believe that admission of the
testimony of Major McConnell concerning appellants motive to lie was constitutional
error. Asking court members to infer that an accused is lying merely because
he is an accused undermines the presumption of innocence. See generally
Mahorney v. Wallman, 917 F.2d 469 (10th Cir. 1990) (prosecution
argument that presumption of innocence had been eliminated was constitutional
error); see also United States v. Carpenter, No. 98-1050
(circulating) (prosecutor "treading on dangerous ground" by commenting
on exercise of constitutional rights).
In this case the prosecution introduced evidence
of appellants statements to an OSI agent and then used expert testimony
to suggest that some of those statements were false, based solely on the
fact that appellant was accused of a crime. In my view, it is impermissible
to use expert testimony to opine on the truthfulness of evidence. See
United States v. Arruza, 26 MJ 234, 237 (CMA 1988), and cases cited
therein, cert. denied, 489 U.S. 1011 (1989).
I also do not believe that the defense opened
the door by suggesting that the victim may have been faking his symptoms
when he was seen by Maj Woods. If the defense had shown that the victim
had a felony conviction, that would not open the door to evidence that
the accused also had a felony conviction. In my view, there is no logical
connection between a suggestion that a victim may have faked his symptoms
and an assertion that an accused is lying, especially when the accused
does not testify.
Finally, I do not agree that the issue was
waived. Defense counsel objected on the ground that the testimony of Maj
McConnell was "perpetrator evidence." While this objection may have been
inartfully phrased, it was clear to the military judge that the defense
was objecting to testimony that appellant had a motive to lie merely because
he was accused of a crime. For the reasons stated above, I believe that
the objection was meritorious and should have been sustained.
Although I believe that the military judge
erred, I am satisfied beyond a reasonable doubt, based on the military
judges detailed credibility instruction and the evidence of record, that
the error was harmless. Accordingly, I concur in the result.

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