United States v. Datz ( 2005 )

UNITED STATES, Appellee
v.
William E. DATZ, Gunners Mate Second Class
U.S. Coast Guard, Appellant
No. 03-0638
Crim. App. No. 001-69-01
United States Court of Appeals for the Armed Forces
Argued October 12, 2004
Decided April 25, 2005
BAKER, J., delivered the opinion of the Court, in which
GIERKE, C.J., and CRAWFORD, EFFRON, and ERDMANN, JJ.,
joined.
Counsel
For Appellant: Lieutenant Commander Nancy J. Truax
(argued).
For Appellee: Commander Duane R. Smith (argued);
Lieutenant Commander John S. Luce (on brief).
Military Judge: R. W. Bruce
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Datz, No. 03-0638/CG
Judge BAKER delivered the opinion of the Court.
Appellant was tried by a general court-martial composed
of officer and enlisted members at Alameda, California.
Contrary to his pleas, he was convicted of assaulting a
petty officer, treating the same petty officer with
contempt, sexually harassing a female member of his crew,
unlawfully entering the civilian quarters of a member of
his crew, three specifications of dereliction of duty, and
rape in violation of Articles 91, 92, 120, and 134, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. §§ 891, 892,
920, and 934 (2000), respectively. The adjudged and
approved sentence provided for confinement for three
months, and reduction from grade E-5 to grade E-3.
Appellant did not receive a punitive discharge.
Appellant’s conviction and sentence were reviewed by
the Acting Judge Advocate General of the Coast Guard
pursuant to Article 69, UCMJ, 10 U.S.C. § 869 (2000), who
directed the United States Coast Guard Court of Criminal
Appeals to review the record. The Court of Criminal
Appeals considered fourteen assignments of error from
Appellant. The findings and sentence were determined to be
correct in law and were affirmed. United States
v. Datz, 59 M.J 510 (C.G. Ct. Crim. App. 2003).
We granted review of the following three issues:
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I. WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO
SUSTAIN A CHARGE OF RAPE WHERE THE VICTIM WAS
AWAKE AND COHERENT YET TOTALLY PASSIVE, FAILED TO
REASONABLY MANIFEST LACK OF CONSENT, AND THE ONLY
EVIDENCE OF “FORCE” WAS MOVING HER LEG TO ACHIEVE
PENETRATION.
II. WHETHER THE MILITARY JUDGE ERRED BY ADMITTING
TESTIMONY OF SUPPOSEDLY INCRIMINATING NONVERBAL
GESTURES, WHERE THE INTERROGATOR COULDN’T
REMEMBER WHAT QUESTIONS HE ASKED TO ELICIT THE
GESTURES.
III. WHETHER THE MILITARY JUDGE ERRED IN SUPPRESSING
EVIDENCE OF THE RAPE VICTIM’S MOTIVE TO
MISREPRESENT.
Because we reverse this case on the basis of Issue II, we
need not address Issues I and III.
The military judge erred when he admitted an
investigator’s testimony that Appellant manifested an
adoptive admission, through an affirmative head nod, that
the victim did not consent to intercourse. This testimony
was predicated on the investigator’s recollection of the
following predicate question: “[I]t was something to the
effect . . . and it would have been, ‘She didn't in fact
agree to have sex with you, did she?’ or something to that
effect.” Given the ambiguity and the compound nature of
the question asked, the Government did not meet its
threshold burden of demonstrating that Appellant understood
and unequivocally acquiesced in the statement at issue as
presented by the investigator. Such threshold
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United States v. Datz, No. 03-0638/CG
determinations are not factual questions for the members to
consider. Rather, they are foundational requirements to be
determined by the military judge before adoptive admissions
are presented to the members. Because this testimony
effectively amounted to an admission by Appellant to the
only contested element of the offense -- consent -- this
was prejudicial error.
Background
Appellant was charged with raping Petty Officer (PO) H
at her townhouse in the early morning hours of June 27,
1999. At trial, Appellant conceded that intercourse had
occurred, but argued that the intercourse was consensual.
Nonetheless, the members convicted him of rape.
The Court of Criminal Appeals concluded that testimony
that Appellant had moved PO H’s leg in order to have
intercourse provided a legally sufficient basis for members
to have found the element of force. With respect to the
element of consent, trial counsel presented evidence that
when Appellant showed up in PO H’s bedroom in the early
morning hours, she told him to leave and that she answered
his crude questions about having sex by saying “no.” The
Government also presented evidence that PO H turned away
from Appellant hoping he would fall asleep, and that when
he continued with the act, she cried.
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At a session during trial pursuant to Article 39(a)
UCMJ, 10 U.S.C. § 839 (2000), trial counsel proffered
testimony from Special Agent (SA) Van Arsdale that during
his interrogation Appellant had nodded in affirmative
response to, and thereby indicated that he agreed with,
four questions. These questions touched on: (1) whether
PO H had left her door unlocked for Appellant or for
someone else, (2) whether at a previous gathering where
others were present, she had singled him out and invited
him to her room, (3) whether it was true that PO H’s
invitation, rather than to him individually, was to a group
of people, and (4) whether or not PO H agreed to have
intercourse with him. The following colloquy took place
between the trial counsel and SA Van Arsdale:
Q. Do you recall how you confronted him with that?
A. In the same manner. This whole line of
questioning was done in the same manner. “Isn’t
it true the door wasn’t meant to be unlocked for
you but somebody else?” Something along those
lines.
. . . .
Q. Regarding [H] singling out and inviting him to
her house and to her room. How would you have
confronted the accused with that?
A. It would have been along the same lines. Either
“Isn’t it true?” or “Seaman [H] didn’t in fact
invite you at all, did she?”
Q. So posed as a question again?
A. Posed as a question.
Just before that exchange, the military judge had
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United States v. Datz, No. 03-0638/CG
commented on SA Van Arsdale’s questioning of the accused:
Military Judge: [T]he way you phrased the question,
it doesn’t seem like it would call for a yes or
no answer.
[Trial Counsel:] Special Agent Van Arsdale, do you
recall how you confronted the accused with Petty
Officer [H]’s invitation being proposed to a
group of people?
[SA Van Arsdale:] Yes.
Q. Can you explain that?
A. Would have posed the question something like,
“Isn’t it true that the invitation wasn’t
directed toward you, but in fact it was directed
towards a large group of people?” And then his
response was an up-and-down head bob.
. . . .
Q. Special Agent Van Arsdale, I’m going to ask you
again if you confronted the accused as to whether
or not Petty Officer [H] had agreed to have sex
with him. And did you?
A. Yes.
Q. And do you recall if he responded?
. . . .
A. He responded affirmatively to the question I
posed.
. . . .
A. Again, it was something to the effect -– this
whole line of questioning was around the same
time, and it would have been, “She didn’t in fact
agree to have sex with you, did she?” or
something to that effect.
Trial defense counsel initially objected to the
admission of this testimony on the grounds that it was
irrelevant and that its probative value was outweighed by
its prejudicial effect. Counsel then went on to question
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United States v. Datz, No. 03-0638/CG
whether the testimony proffered demonstrated that Appellant
had manifested his adoption of or belief in the statements:
[T]here’s a real question -– I mean, the question’s
posed. What does [the nodding] mean? Is he nodding
affirmatively to the question, or is he just
acknowledging the question, or is he just ticked off
that these questions are coming at him one after
another . . . ?
Later, during cross-examination, defense counsel asked
SA Van Arsdale about his questioning of Appellant and
Appellant’s subsequent responses:
Q. You asked the question, he nods his head, you
don’t follow up with the question, “Is that a
yes?”
A. That’s correct.
Q. So with all these questions, same exact scenario?
You ask the question, boom, you move on to the
next one, right?
A. Pretty much, yes.
Over defense counsel’s objections, the military judge
admitted SA Van Arsdale’s testimony stating:
Well, it seems to me that this is a question for
the members as to the weight that they’re going to
give to Van Arsdale’s testimony.
. . . .
[I]n terms of [Military Rule of Evidence
(M.R.E.)] 403, I think there is certainly enough
evidence there for the members to conclude that the
accused made the admissions that Van Arsdale’s
testifying to. And if they do, then that has strong
probative value on those issues.
On the other hand, the defense may convince them
that the testimony of Van Arsdale on those issues has
little or no value, and if they give it little or no
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United States v. Datz, No. 03-0638/CG
value, then, of course, there’s no prejudice to the
defense.
Notwithstanding the objection based on M.R.E. 403, the
defense counsel did not expressly object that the head nods
were inadmissible adoptive admissions under M.R.E.
801(d)(2). But as noted above, he did question whether it
could really be determined what Appellant’s head nodding
meant. The special agents had not audiotaped or videotaped
Appellant’s interview. Nor had Appellant been asked to
prepare a written statement or sign a written statement
prepared by the agents.1 The military judge did not enter
1
There are two documents describing Appellant’s interrogation. The
first document consists of four pages of handwritten notes taken during
the interview of Appellant by SA Lanigan as SA Van Arsdale conducted
the interview. These notes, which do not include the questions at
issue and do not record any corresponding nonverbal admissions by
Appellant, are not part of the record of trial. The second document, a
three-page typed interview report, is dated July 8, 1999. This
document reflects in paragraphs e through h the following nonverbal
admissions by Appellant:
Leaving the Door Open
e. When confronted that [PO H’s] comment about leaving her
door unlocked was directed at someone else and not to Datz, he
nodded affirmatively, but did not verbally respond.
Invitation into Home
f. When confronted that [PO H’s] invitation to her house that
evening was made to a group of people, he acknowledged that he
was standing near a group when the invitation was made and that
the comment was not directed towards him.
Invitation to Group or Appellant
g. When confronted that [PO H] did not single him out and
invite him to her house or to her room that evening, he nodded
affirmatively, but did not verbally respond.
Consent to Sex
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predicate findings about the head nods as adoptive
admissions.
On appeal, Appellant contends the military judge erred
by admitting SA Van Arsdale’s testimony concerning
Appellant’s nonverbal head nods. Of the four adoptive
admissions at issue, three addressed specific
circumstantial aspects of the offense. The fourth
admission went directly to one of the elements of rape,
namely, whether the victim consented to the sexual
intercourse. Appellant argues that because the head nods
were admitted as adoptive admissions under M.R.E.
801(d)(2), before the evidence could be presented before
the members, the military judge was required to make a
predicate finding that Appellant understood the content of
the statements, and unequivocally acknowledged the
statements in adopting them as his own. Appellant further
argues that he did not adopt the statements that SA Van
Arsdale says he did. Appellant contends that some of the
h. When confronted that [PO H] did not agree to have sex with
him, he nodded affirmatively, but did not respond verbally. When
asked whether [PO H] told him to leave, he denied she made that
comment.
Although these documents were referenced at trial and on appeal, they
were not admitted into evidence at trial and the military judge stated
on the record, “I haven’t specifically looked at the notes, or anything
like that.” Therefore, our review of the military judge’s evidentiary
rulings on adoptive admissions is based on the evidence before the
military judge at trial.
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United States v. Datz, No. 03-0638/CG
questions posed to him during his interrogation were
ambiguous, making it impossible to determine what it was
that he was adopting, if anything, including his response
to the critical question of consent. Finally, Appellant
asserts that, given the uncertainty regarding these alleged
adoptive admissions, their prejudicial effect outweighed
any probative value. On the issue of waiver or forfeiture,
Appellant argues that his objection was made known at trial
and the judge’s error should be reviewed for an abuse of
discretion rather than for plain error.
According to the Government, military courts have
recognized and admitted head nods as affirmative responses.
Further, the Government argues that the military judge
conducted a proper balancing test under M.R.E. 403 when he
determined that SA Van Arsdale’s testimony regarding
Appellant’s affirmative head nods was admissible.
Finally, the Government argues that Appellant failed to
object to this evidence at trial on the ground of M.R.E.
801(d)(2)(B). On this basis, the Government argues, this
Court should test the military judge’s ruling for plain
error.
Discussion
We first address the parties’ arguments regarding
waiver or forfeiture, so as to determine the standard of
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United States v. Datz, No. 03-0638/CG
review we will apply in this case. Defense counsel,
objecting to SA Van Arsdale’s testimony on the basis of
M.R.E. 401 and 403, stated, “The objection is 401, 403,
whether or not this evidence is relevant and whether or not
any probative value it has is outweighed by the prejudicial
effect.” Defense counsel did not cite to M.R.E.
801(d)(2)(B).
However, his argument on the motion addressed the
issue of adoptive admissions generally and specifically
raised concerns about whether Appellant’s nodding adopted
the admissions posed by SA Van Arsdale. Among other
things, trial defense counsel argued:
The concerns -– I said this rule does not fall
under the [admission by] silence rule [see United
States v. Cook, 48 M.J. 236 (1998)], but the concerns
that exist as a basis for the rule against admissions
by silence by the accused apply here in that the rule
is concerned with questions about the potential
manufacture of evidence.
. . . .
Another question is -– as with the silence rule,
there’s a question of the ambiguity about what this
[nodding] means.
. . . .
But there’s a real question -– I mean, the question’s
posed. What does it mean? Is he nodding
affirmatively to the question, or is he just ticked
off that these questions are coming at him one after
another after he’s already told them what occurred?
So important to consider in that, Your Honor, is the
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United States v. Datz, No. 03-0638/CG
nature of these questions, the series of questions,
one after another, after another, after another.
Under M.R.E. 103, in order to preserve an objection
when “the ruling is one admitting evidence” the objecting
party must make “a timely objection or motion to strike . .
. in the record, stating the specific ground of the
objection, if the specific ground was not apparent from the
context.” M.R.E. 103(a)(1). The rule also provides that
“[n]othing in this rule precludes taking notice of plain
errors that materially prejudice substantial rights
although they were not brought to the attention of the
military judge.” M.R.E. 103(d).
In the present context, we believe defense counsel met
his burden under M.R.E. 103. Although defense counsel
cited M.R.E. 401 and 403, he did so squarely in the context
of an argument about Appellant’s nonverbal admissions.
Thus, the specific ground for objection was known to the
military judge. A party is not necessarily required to
refer to a specific rule by citation. A party is required
to provide sufficient argument to make known to the
military judge the basis of his objection and, where
necessary to support an informed ruling, the theory behind
the objection. United States v. Banker, 60 M.J. 216(C.A.A.F. 2004); United States v. Brandell, 35 M.J. 369, 372
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United States v. Datz, No. 03-0638/CG
(C.M.A. 1992)(holding that “[a] defense counsel has the
duty to identify the ‘specific grounds’ upon which an
objection to evidence is based,” but that this duty is met
when “all parties at trial fully appreciate the substance
of the defense objection and the military judge has full
opportunity to consider it”).
But if Appellant preserved an objection based upon
M.R.E. 801(d)(2)(B), the additional question framed by the
Government is whether Appellant was also required to raise
each argument in support of his objection at the time of
trial or forfeit the opportunity to do so on appeal, absent
a showing of plain error. Specifically, the Government
argues that Appellant did not object on the ground that the
questions posed to Appellant were ambiguous, but rather
only because the questions were repetitive and it was not
clear whether Appellant was adopting the admissions.
We disagree with this argument. On its face, M.R.E.
103 does not require the moving party to present every
argument in support of an objection, but does require
argument sufficient to make the military judge aware of the
specific ground for objection, “if the specific ground was
not apparent from the context.” This is not a case where
counsel has shouted “hearsay,” and only later has come to a
conclusion as to the basis for that objection. Here
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United States v. Datz, No. 03-0638/CG
counsel’s objection to the adoptive admissions was “brought
to the attention” of the military judge.
To require counsel for either side to identify all
available arguments in support of his or her objection is
unnecessary in a context where the military judge is
presumed to know the law and follow it. In the heat of
trial, where counsel face numerous tactical decisions and
operate under time pressure, we do not require such
elaboration to preserve error on appeal.
We turn now to the substantive foundational
requirements for adoptive admissions, as well as a military
judge’s responsibilities in admitting adoptive admissions.
“A military judge’s ruling on admissibility of
evidence is reviewed for abuse of discretion.” United
States v. Johnson, 46 M.J. 8, 10 (C.A.A.F. 1997). In order
to be overturned on appeal, the judge’s ruling must be
“‘arbitrary, fanciful, clearly unreasonable’ or ‘clearly
erroneous,’” United States v. Taylor, 53 M.J. 195, 199
(C.A.A.F. 2000)(quoting United States v. Travers, 25 M.J.
61, 62 (C.M.A. 1987)), or “influenced by an erroneous view
of the law,” United States v. Sullivan, 42 M.J. 360, 363
(C.A.A.F. 1995); United States v. Owens, 51 M.J. 204, 209
(C.A.A.F. 1999).
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Substantive Foundation
Under Federal Rule of Evidence 801(d)(2)(B) and M.R.E.
801(d)(2)(B), a statement is excepted from the general
hearsay rule when it is one that has been offered against a
party who has manifested an adoption or belief in its
truth. An adoptive admission can be accomplished through
nonverbal means, such as a hand or head motion. The text
of the rule does not explicitly incorporate body gestures,
but neither does it preclude such admissions.2
When a statement is offered as an adoptive admission,
the proponent must present sufficient proof to support a
finding that the party against whom the statement is
offered heard, understood, and acquiesced in the statement.
United States v. Robinson, 275 F.3d 371, 383 (4th Cir.
2001); United States v. Beckham, 968 F.2d 47, 51-52 (D.C.
Cir. 1992); Skiskowski v. United States, 158 F.2d 177, 181-
82 (D.C. Cir. 1946); United States v. Joshi, 896 F.2d 1303,
1311 (11th Cir. 1990); United States v. Sears, 663 F.2d
896, 904 (9th Cir. 1981); United States v. Rodriguez-
Cabrera, 35 F. Supp. 2d 181, 184-85 (D.P.R. 1999). These
2
Relying on United States v. Wallace, 34 M.J. 353, 355 (C.M.A. 1992),
the Government argues that this Court has previously upheld the
admission of an appellant’s head nods as an affirmative adoptive
admission. Although Wallace was convicted in part on evidence of
adoptive admissions, this Court’s opinion in Wallace did not address
adoptive admissions and therefore does not inform our review of the
military judge’s ruling in this case.
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United States v. Datz, No. 03-0638/CG
foundational requirements have been applied in military
courts as well. United States v. Farris, 21 M.J. 702, 705
(A.C.M.R. 1985); United States v. Garrett, 16 M.J. 941,
943-944 (N.M.C.M.R. 1983).
We cite Garrett favorably because we agree with, and
therefore adopt, that court’s articulation of the
foundational requirements for admitting adoptive
admissions, namely, a showing that (1) the party against
whom it is offered was present during the making of the
statement; (2) he understood its content; and (3) his
actions or words or both unequivocally acknowledged the
statement in adopting it as his own. Garrett, 16 M.J. at
943-44.
In Appellant’s case, however, the Government did not
meet its foundational burden of demonstrating that
Appellant understood and acquiesced in the statements
admitted at trial before those statements were admitted
into evidence. First, a review of the questions identified
during the Article 39(a) session reflects ambiguity as to
the actual questions asked of Appellant. During that
session for example, SA Van Arsdale could not remember the
exact questions he asked Appellant. SA Van Arsdale
testified that he “[w]ould have posed the question
something like, ‘Isn't it true that the invitation wasn't
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United States v. Datz, No. 03-0638/CG
directed toward you, but in fact it was directed toward a
large group of people?’ . . . ‘Isn't it true the door
wasn't meant to be unlocked for you but somebody else?
Something along those lines.’” Similar qualifications were
repeated throughout SA Van Arsdale’s testimony. At one
point, the military judge interjected, “I think that the
last question was too vague to really mean anything since
we don't know what all the questions were.”
Second and most importantly, on the critical question
of consent, the questions asked of Appellant, even if they
were recalled exactly as given, were ambiguous because they
contained compound elements. For example, at the Article
39(a) session, SA Van Arsdale testified that he asked
Appellant:
A. Again, it was something to that effect -- this
whole line of questioning was around the same
time, and it would have been, “She didn’t in fact
agree to have sex with you, did she?” or
something to that effect.”
In response to such a question, it is not clear what an
affirmative nod means. It could mean that PO H “did not in
fact agree to have sex” with Appellant. But it could also
mean, she did, i.e., “did she?” “Yes.” Alternatively, a
“no” nod might signal agreement with the initial premise of
the question, i.e., communicating “no, she did not agree to
have sex.” Arguably, it might also reflect something
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United States v. Datz, No. 03-0638/CG
altogether different, like a dismissive gesture borne of
Appellant’s irritation or frustration with the line of
questioning.3 As a result, this testimony does not satisfy
the Government’s threshold burden of showing that Appellant
understood the question and unequivocally adopted the
predicate of the question as his own.
Prejudice
Adoptive admissions in context can present uncertain
and ambiguous applications of the law of evidence, which
are not solely questions of fact for the fact-finder. In
this case, the fourth adoptive admission as presented by SA
Van Arsdale was tantamount to a confession of the crime,
but without the indicia of reliability of a written
confession signed by the accused.
Here, Appellant’s responses addressed and answered the
main issue in the case: whether Appellant’s sexual
encounter with PO H was consensual. On the question of
consent, the Government offered two witnesses, the victim
and SA Van Arsdale. The Government presented no other
direct evidence of the rape. In light of this record, we
3
Although not part of our analysis, which hinges on the evidence
presented to the military judge before admitting the statements, we
note that before the members, the questions that SA Van Arsdale asked
Appellant were presented with comparable ambiguity. On questioning by
defense counsel, SA Van Arsdale agreed that he had asked Appellant:
“[H] never invited you to the house?” and “[H] never agreed to have sex
with [you]?”
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United States v. Datz, No. 03-0638/CG
cannot say with fair assurance that SA Van Arsdale’s
testimony regarding Appellant’s affirmative responses to
his questions did not have substantial influence on the
panel’s decision. See Kotteakos v. United States, 328 U.S.
750 (1946).
“‘[T]he defendant's own confession is probably the
most probative and damaging evidence that can be admitted
against him.’” Arizona v. Fulminante, 499 U.S. 279, 296
(1991)(quoting Bruton v. United States, 391 U.S. 123, 139-
40 (1968)(White, J., dissenting)). Here that admission
rested upon a law enforcement officer's interpretation of
body language. Without some additional written, verbal, or
video confirmation, this amounted to a confession by
gesture of a critical element of the offense -- and the
only contested element of the offense. Gestures and
reactions vary from person to person under the pressure of
interrogation. As a result, the military judge’s decision
to admit evidence of Appellant’s head nodding without
adequate foundation was prejudicial error.
Decision
The decision of the United States Coast Guard Court of
Criminal Appeals is reversed as to Charge IV (rape) and
specification 1 of Charge VI (unlawful entry). The
findings of guilty as to those offenses and the sentence
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United States v. Datz, No. 03-0638/CG
are set aside. The remaining findings of guilty are
affirmed. The record of trial is returned to the Judge
Advocate General of the Coast Guard. A rehearing on the
affected findings and the sentence is authorized.
20