                        UNITED STATES, Appellee

                                    v.

                   Isaac D. ROBERSON, Lance Corporal
                      U.S. Marine Corps, Appellant

                              No. 06-0611

                       Crim. App. No. 200301539

       United States Court of Appeals for the Armed Forces

                       Argued February 13, 2007

                         Decided May 22, 2007

ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, STUCKY, and RYAN, JJ., joined.

                                 Counsel

For Appellant: Lieutenant W. Scott Stoebner, JAGC, USN
(argued); Captain Rolando Sanchez, USMC (on brief).

For Appellee: Lieutenant Mark H. Herrington, JAGC, USNR
(argued); Colonel Ralph F. Miller, USMC (on brief); Commander
Charles N. Purnell, JAGC, USN, and Lieutenant Jessica M. Hudson,
JAGC, USN (on brief).

Amicus Curiae for Appellant: Jonathan K. Hullihan (law student)
(argued); Monica H. Wallace, Esq. (supervising attorney),
Jonathan Shaver (law student), and Matthew Sonn (law student)
(on brief) – for Loyola University New Orleans College of Law.

Amicus Curiae for Appellee: Lorelie A. Papel (law student)
(argued); Patrick E. O’Keefe, Esq. (supervising attorney) and
Jennifer C. Deasy (law student) (on brief) - for Loyola
University New Orleans College of Law.

Military Judges:    T. A. Daly (arraignment) and J. P. Colwell
(trial)

       This opinion is subject to revision before final publication.
United States v. Roberson, No. 06-0611/MC

     Judge ERDMANN delivered the opinion of the court.1

     Lance Corporal Isaac D. Roberson was convicted at a special

court-martial with members of unauthorized absence, larceny and

forgery in violation of Articles 86, 121 and 123, Uniform Code

of Military Justice (UCMJ), 10 U.S.C. §§ 886, 921, 923 (2000).

He was sentenced to a bad-conduct discharge, confinement for one

month, forfeiture of $737.00 pay per month for a period of one

month, and reduction to the lowest enlisted grade.   The

convening authority approved the sentence and the United States

Navy-Marine Corps Court of Criminal Appeals affirmed the

findings and sentence.   United States v. Roberson, No. NMCCA

200301539, 2006 LEXIS CCA 60, 2006 WL 650026 (N-M. Ct. Crim.

App. Mar. 14, 2006).

     We granted review to determine whether the military judge

abused his discretion when he excluded testimony offered under

Military Rule of Evidence (M.R.E.) 803(3) and whether Roberson’s

due process right to timely post-trial review and appeal was

violated.   We conclude that the military judge erred in

excluding the proffered evidence, but Roberson was not

materially prejudiced by the rulings.   We further conclude that


1
  Oral argument in this case was hosted by the Loyola University
New Orleans College of Law at the U.S. Court of Appeals for the
Fifth Circuit, New Orleans, Louisiana, as part of the court’s
“Project Outreach.” See United States v. Mahoney, 58 M.J. 346,
347 n.1 (C.A.A.F. 2003). This practice was developed as part of
a public awareness program to demonstrate the operation of a
federal court of appeals and the military justice system.

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United States v. Roberson, No. 06-0611/MC

even if we were to assume that Roberson’s due process rights to

a timely review were violated, the error was harmless beyond a

reasonable doubt.

                               Issue I

                     The M.R.E. 803(3) Evidence2

       An accused at a court-martial is entitled to present

relevant evidence that is not otherwise inadmissible.   M.R.E.

401; M.R.E. 402.    Relevant evidence is that which has “any

tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or

less probable than it would be without the evidence.”   M.R.E.

401.   Roberson contends that the military judge abused his

discretion when he prevented Roberson from presenting additional

evidence under M.R.E. 803(3) in support of his affirmative

defense of duress.   Roberson contends that the erroneous rulings

denied him due process and a fair trial.    We conclude that the

military judge erred in excluding the contested evidence.      Under

the circumstances of this case, however, the error was not of

constitutional magnitude and did not materially prejudice

Roberson’s substantial rights.




2
  “[M.R.E.] 803 Hearsay exceptions; availability of declarant
immaterial . . . . (3) Then existing mental, emotional, or
physical condition.” Manual for Courts-Martial, United States,
Analysis of the Military Rules of Evidence app. 22 at A22-53
(2005 ed.).

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United States v. Roberson, No. 06-0611/MC

                               Facts

     Roberson and Dominique Matson agreed that they would steal

several checks from Roberson’s roommate, Lance Corporal John A.

Abrenica.   Matson took a number of checks from Abrenica’s

checkbook and gave the checks to Roberson.   Roberson forged

Abrenica’s signature on one check in the amount of $400.00 and

Matson used Roberson’s automated teller machine (ATM) card to

deposit the check into Roberson’s savings account.   Later,

Matson used the ATM card to withdraw the money which he split

with Roberson.   Roberson forged a second check for $300.00 and

deposited it into his account, but the check did not clear

because a “stop payment” order had been placed on the stolen

checks.   Roberson executed a pretrial statement admitting to

this misconduct.   The pretrial statement made no mention of

Matson threatening Roberson with bodily harm if Roberson did not

participate in the crimes.

     Abrenica testified on direct examination that after the

incident, Roberson had approached him to apologize and mentioned

something about Matson.   On cross-examination, Abrenica

testified in more detail as to what Roberson had told him:       that

Matson believed Roberson owed him money; that Matson said he

“better get [his] money”; and that Matson held a gun to

Roberson’s head to make Roberson “perform certain acts.”     A

stipulation of expected testimony of Roberson’s half sister



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United States v. Roberson, No. 06-0611/MC

reflected that she had received a phone call in which the caller

had threatened to kill Roberson if he told anyone about the

stolen checks and that she had related the content of the phone

conversation to Roberson.    Lance Corporal Carlton P. Revell

testified that he overheard a conversation between Roberson and

another individual during which the other individual wanted

Roberson to deposit a check and produce money.     Revell described

this conversation as “unfriendly.”    All of this testimony was

admitted by the military judge.

     Roberson’s defense counsel also sought to introduce

testimony from Donnie L. Mathis, a former Marine cook who knew

Matson.   Mathis would have testified about a conversation he had

with Matson in which Matson asserted that Roberson owed Matson

money that he would get by any means.      The defense also sought

to have Mathis testify that he passed this information on to

Roberson and that Roberson seemed scared.     Mathis would also

have testified that Matson had an aggressive personality and

that Matson had a handgun.   The military judge did not permit

Mathis to testify as to any of these matters.     Based on evidence

that had been admitted, however, the military judge instructed

the members on the defense of duress.

                              Discussion

      “‘A military judge’s decision to admit or exclude evidence

is reviewed under an abuse of discretion standard.’”     United



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United States v. Roberson, No. 06-0611/MC

States v. Barnett, 63 M.J. 388, 394 (C.A.A.F. 2006) (quoting

United States v. McDonald, 59 M.J. 426, 430 (C.A.A.F. 2004)).

In this case we assess the military judge’s rulings in light of

Rule for Courts-Martial 916(h) which provides for the

affirmative defense of duress at trials by courts-martial:

     It is a defense to any offense except killing an
     innocent person that the accused’s participation in
     the offense was caused by a reasonable apprehension
     that the accused or another innocent person would be
     immediately killed or would immediately suffer serious
     bodily injury if the accused did not commit the act.
     The apprehension must reasonably continue throughout
     the commission of the act. If the accused has any
     reasonable opportunity to avoid committing the act
     without subjecting the accused or another innocent
     person to the harm threatened, the defense shall not
     apply.

     The initial testimony at issue concerned Matson’s statement

to Mathis that Roberson owed Matson money for disposing of some

of Matson’s drugs and that Matson was “going to get his money

back not [sic] matter nothing, if you don’t cooperate with him.”

Defense counsel argued that this statement was offered under

M.R.E. 803(3) to show Matson’s existing mental state and motive.

In excluding the statement, the military judge stated that he

did “not believe that these statements demonstrate an attempt or

plan or motive on this witness that do not [sic] fall within

this hearsay exception.”

     Military Rule of Evidence 803(3) provides the hearsay

exception for statements of “[t]hen existing mental, emotional,

or physical condition”:


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United States v. Roberson, No. 06-0611/MC

     A statement of the declarant’s then existing state of
     mind, emotion, sensation, or physical condition (such
     as intent, plan, motive, design, mental feeling, pain,
     and bodily health), but not including a statement of
     memory or belief to prove the fact remembered or
     believed unless it relates to the execution,
     revocation, identification, or terms of [the]
     declarant’s will.

See United States v. Palmer, 55 M.J. 205, 207 (C.A.A.F. 2001).

Matson’s statement could reasonably be construed as reflecting

that he was willing to get his money by any necessary means; in

other words, that he intended to take such steps as were

necessary to facilitate collecting the money.   We conclude that

the military judge erred when he ruled that the statement by

Matson to Mathis did not reflect intent.    The military judge’s

stated reason for excluding the evidence is inconsistent with

the facial implication of the words:   “going to get his money

back not [sic] matter nothing.”

     In addition, it appears that the military judge did not

recognize that the statement could be used to show that the

intent was carried out.   “[S]uch out-of-court statements which

reflect the declarant’s state of mind are also admissible to

prove that the intent subsequently was carried out. . . . Such

factors in this case as the statements’ vagueness . . . go only

to the weight to be given the evidence and not to its

admissibility.”   United States v. Elliott, 23 M.J. 1, 7 (C.M.A.

1986).   Finally, in light of the relatively low standard for




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United States v. Roberson, No. 06-0611/MC

relevance in M.R.E. 401, the statement tends to support a

defense of duress as raised through other testimony.

     We next consider the testimony offered to show that the

foregoing statement was communicated to Roberson by Mathis.

Defense counsel sought to have Mathis testify that he told

Roberson what Matson had said about coming to get the money.     As

noted, Matson’s statement of intent to get his money by any

means was admissible to show intent.   In turn, the fact that

Matson’s expressed intent was conveyed to Roberson is relevant.

The communication shows that Roberson was aware of the threat

and thus has a tendency to show that there may have been a basis

for Roberson to be fearful.   In fact, the statement of Matson to

Mathis makes little independent contribution to duress unless it

can be shown that the statement was conveyed to Roberson.     Thus,

we conclude that the military judge erred in excluding evidence

that Mathis told Roberson about Matson’s statement.

     Defense counsel also sought to have Mathis testify about

his perception of how Roberson reacted to hearing that Matson

said he was coming to get the money.   According to Mathis,

Roberson appeared “shook.”    The military judge stated, “This

witness, again, similar to other witnesses, can’t testify to

what effect that had on Lance Corporal Roberson.”   We disagree

with the military judge.   Military Rule of Evidence 701 provides

that a lay witness may express an opinion based upon personal



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United States v. Roberson, No. 06-0611/MC

observation where that opinion is relevant to a fact in issue

and not based upon specialized, scientific knowledge.

     Mathis’s opinion of Roberson’s reaction to hearing Matson’s

statement, based as it was upon personal observation, tends to

support a conclusion that Roberson was in fear of Matson.     So

long as the opinion is based upon personal observation and is

relevant, a lay witness may testify about another’s emotional

state.   See Farfaras v. Citizens Bank and Trust of Chicago, 433

F.3d 558, 565-66 (7th Cir. 2006) (lay opinion that another was

depressed); Markgraf v. State, 12 P.3d 197, 200 (Alaska Ct. App.

2000) (testimony that another person seemed scared).    No unique

ability or specialized training is required to form such

opinions.   We conclude that the military judge abused his

discretion in excluding Mathis’s opinion of the effect that

Matson’s statements had upon Roberson.

     Matson’s statement about getting the money in any way he

could and the fact that this statement was conveyed to Roberson

were offered in conjunction with Mathis’s opinion that Matson

was “an aggressive type person.   Like trying to strong arm

people.”    In light of the duress defense, this opinion of

Matson’s character is relevant as an opinion from which the

factfinder could reasonably conclude Roberson perceived Matson

as a threat.   This relevance is not tied to Matson acting in

accordance with that characteristic, which would be prohibited



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United States v. Roberson, No. 06-0611/MC

under M.R.E. 404(b).    Rather, it goes to the reasonableness of

any fear that Roberson may have had in connection to the duress

defense.

        The last evidence that was excluded was Mathis’s testimony

that Matson had a “handgun. . . . I saw a .45 he had before.”

This observation was not offered in conjunction with any

evidence showing that Roberson knew Matson had a handgun -- that

fact came out through Abrenica’s testimony.    Instead, Mathis’s

testimony about the weapon would have lent support to the duress

defense by contributing to the reasonableness of Roberson’s

fear.    In light of Abrenica’s testimony that Roberson said that

Matson had a weapon and the military judge’s ultimate conclusion

that duress had been raised, we conclude that the military judge

abused his discretion in omitting Mathis’s testimony that Matson

in fact had a gun.

        Having determined that the military judge abused his

discretion by excluding the foregoing testimony from Mathis, we

must now consider the effect of that error.    Roberson argues

that by excluding this testimony, the military judge deprived

him of his opportunity to present a complete defense.    As a

result, Roberson argues, the burden shifts to the Government to

show that the error was harmless beyond a reasonable doubt.

United States v. McAllister, 64 M.J. 248, 251 (C.A.A.F. 2007)




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United States v. Roberson, No. 06-0611/MC

(quoting United States v. Buenaventura, 45 M.J. 72, 79 (C.A.A.F.

1996)).

     The Government responds that any error in this case is not

constitutional and that we should review the effect of any error

to determine whether Roberson’s substantial rights were

materially prejudiced.   Article 59(a), UCMJ, 10 U.S.C. § 859(a)

(2000).   We review the prejudicial effect of an erroneous

evidentiary ruling de novo.   United States v. Diaz, 45 M.J. 494,

496 (C.A.A.F. 1997).   Because Roberson presented other evidence

to establish virtually the same facts in support of a duress

defense, we conclude that he was not denied “a meaningful

opportunity to present a complete defense.”   Holmes v. South

Carolina, 126 S. Ct. 1727, 1731 (2006) (citations and quotation

marks omitted); California v. Trombetta, 467 U.S. 479, 485

(1984).   Therefore, we test this error for harmlessness under

Article 59(a), UCMJ.

     “‘We evaluate prejudice from an erroneous evidentiary

ruling by weighing (1) the strength of the Government’s case,

(2) the strength of the defense case, (3) the materiality of the

evidence in question, and (4) the quality of the evidence in

question.’”   United States v. Barnett, 63 M.J. at 397 (quoting

United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F. 1999)).    Using

this evaluation, we will reverse a case only if we determine

that the finder of fact would have been influenced by the



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United States v. Roberson, No. 06-0611/MC

evidence that was erroneously omitted.   United States v. Toohey,

63 M.J. 353, 358 (C.A.A.F. 2006); United States v. Kaiser, 58

M.J. 146, 149 (C.A.A.F. 2003).

     Here the Government’s case was strong and included the

forged checks deposited into Roberson’s savings account,

testimony of the victim, and Roberson’s pretrial statement

admitting every element of the pertinent offenses.   The pretrial

statement contained no reference to any threats, coercion,

intimidation or duress imposed by Matson.   In contrast, the

duress defense was markedly less than compelling.    Duress is

strictly defined in R.C.M. 916(h) which provides that the

accused’s participation in the offense must be “caused by a

reasonable apprehension that the accused or another innocent

person would be immediately killed or would immediately suffer

serious bodily injury if the accused did not commit the act.

The apprehension must reasonably continue throughout the

commission of the act.”   Here, nothing in the admitted evidence

or the evidence excluded by the military judge indicates that

Roberson’s apprehension of physical harm continued unabated

throughout the course of his criminal conduct or that he did not

have some reasonable opportunity to extricate himself from the

situation before he committed this series of crimes that

continued for more than two weeks.    In addition, Roberson wrote

“Merry Xmas” on the first check he forged and “Happy Holidays”



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United States v. Roberson, No. 06-0611/MC

on the second, hardly actions consistent with duress.   Although

the testimony of Mathis may have been material to the duress

defense, it was of no better quality than that which was already

before the finder of fact nor would it have strengthened the

duress defense by remedying the deficiencies previously noted.

We conclude that the erroneous exclusion of Mathis’s testimony

did not materially prejudice Roberson’s substantial rights.

                              Issue II

                       Appellate Due Process

     We granted a second issue in this case to examine whether

Roberson was deprived of his right to due process by the 1,524

days that elapsed between his trial and completion of appellate

review.   We recently addressed a very similar circumstance in

United States v. Young, 64 M.J. 404, 408-09 (C.A.A.F. 2007),

involving a delay of 1,637 days between trial and completion of

review at the United States Army Court of Criminal Appeals.

Applying that same analysis and for the same reasons, we

conclude that any denial of Roberson’s right to speedy post-

trial review and appeal was harmless beyond a reasonable doubt

and no relief is warranted.

                              Decision

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




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