United States v. Moss , 2006 CAAF LEXIS 847 ( 2006 )


Menu:
  •                         UNITED STATES, Appellee
    v.
    Kirk A. MOSS, Technical Sergeant
    U.S. Air Force, Appellant
    No. 05-0545
    Crim. App. No. 35379
    United States Court of Appeals for the Armed Forces
    Argued February 7, 2006
    Decided June 21, 2006
    CRAWFORD, J., delivered the opinion of the Court, in which
    GIERKE, C.J., and EFFRON, BAKER, and ERDMANN, JJ., joined.
    Counsel
    For Appellant: Captain Anthony D. Ortiz (argued); Colonel
    Carlos L. McDade and Lieutenant Colonel Mark R. Strickland (on
    brief).
    For Appellee: Captain Jefferson E. McBride (argued); Lieutenant
    Colonel Robert V. Combs, Lieutenant Colonel Gary F. Spencer, and
    Captain Jin-Hwa Frazier (on brief); Major John C. Johnson.
    Military Judge:   Ann D. Shane
    THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
    United States v. Moss, No. 05-0545/AF
    Judge CRAWFORD delivered the opinion of the Court.
    Contrary to his pleas, Appellant was convicted by a general
    court-martial, consisting of officer and enlisted members, of
    carnal knowledge, sodomy with a child,1 and indecent acts with a
    child, in violation of Articles 120, 125, and 134, Uniform Code
    of Military Justice (UCMJ), 
    10 U.S.C. §§ 920
    , 925, 934 (2000).
    Appellant was sentenced to a bad-conduct discharge, seven years
    of confinement, forfeiture of all pay and allowances, and
    reduction to the lowest enlisted grade.   The convening authority
    approved the sentence as adjudged and the United States Air
    Force Court of Criminal Appeals affirmed the findings and
    sentence.   United States v. Moss, No. ACM 35379, 
    2005 CCA LEXIS 139
    , at *12, 
    2005 WL 1017585
    , at *5 (A.F. Ct. Crim. App. Apr.
    14, 2005) (unpublished).   This Court granted review on the
    following issue:
    WHETHER APPELLANT WAS DENIED MEANINGFUL CROSS-
    EXAMINATION OF GOVERNMENT WITNESSES IN VIOLATION OF
    HIS SIXTH AMENDMENT RIGHT OF CONFRONTATION WHEN THE
    MILITARY JUDGE REPEATEDLY PREVENTED TRIAL DEFENSE
    COUNSEL FROM CONFRONTING THE ALLEGED VICTIM AND OTHER
    WITNESSES WITH IMPEACHMENT EVIDENCE ADMISSIBLE UNDER
    MIL. R. EVID. 608.
    For the reasons explained herein, the decision of the Court
    of Criminal Appeals is reversed.
    1
    Appellant was charged with rape and forcible sodomy with a
    child. He was convicted of the lesser included offenses of
    carnal knowledge and sodomy with a child by exceptions and
    substitutions.
    2
    United States v. Moss, No. 05-0545/AF
    Facts
    At the time of the offenses, Appellant was a thirty-six-
    year-old technical sergeant with eighteen years of service, and
    he was married with four children.      On July 27, 2000, Appellant
    was traveling via motorcycle from Pensacola, Florida, to his
    home in Tampa, Florida, with his fourteen-year-old niece by
    marriage, KLVD, so that she could spend some time with his
    family.   The two stopped for the night at Tyndall Air Force Base
    where they shared a billeting room.     The room contained a single
    queen-size bed.    The uncontroverted evidence was that they slept
    in the same bed.   According to KLVD, during the night Appellant
    fondled her breast and thighs, penetrated her vagina with his
    fingers, licked her vagina, and had sexual intercourse with her.
    Appellant, who testified at trial, denied any sexual contact
    with KLVD.
    In March 2001, KLVD first reported this incident when her
    mother picked her up from the Baptist Behavioral Center in
    Little Rock, Arkansas, where she had received psychological
    treatment following an attempted suicide.     Between the date of
    the alleged assault and the date KLVD first reported a sexual
    assault to her mother, KLVD had been in three mental
    institutions for both inpatient and outpatient care as a result
    of behavior problems and suicide attempts.
    3
    United States v. Moss, No. 05-0545/AF
    At trial, the Government filed a motion in limine seeking
    to limit the cross-examination of KLVD, her mother, and other
    witnesses to exclude certain past acts or conduct.     The
    Government sought to exclude:
    (1)   KLVD’s use of alcohol and drugs after the rape.
    (2)   KLVD’s two suicide attempts, one with pills and the
    other with a shotgun, in addition to instances where she
    threatened suicide.
    (3)   KLVD’s friends’ use of alcohol and drugs.
    (4)   General acts of disobedience, which included sneaking
    out late at night, getting caught with boys, lying to her
    parents, having parties without authorization, destruction
    of property at the mental institution, and conduct that
    resulted in removal or expulsion from school.
    Appellant’s trial defense counsel opposed the motion in limine
    stating that the past acts should be admitted under Military
    Rule of Evidence (M.R.E.) 608(c) as relevant to show bias and a
    motive to misrepresent.
    The trial defense counsel asserted that he wanted to cross-
    examine KLVD, her mother, and the Government expert regarding
    these acts because he wanted to establish what the “punishment”
    and consequences to KLVD were for these actions in order to show
    4
    United States v. Moss, No. 05-0545/AF
    that KLVD had motive to fabricate.2   The trial defense counsel
    wanted to reinforce this theory by showing that after the rape
    report, the relationship between KLVD and her parents improved.
    The trial defense counsel also wanted to question KLVD
    regarding the prior false statements she made on various
    occasions to her parents, school officials, and mental health
    professionals.   Some of these false statements were evidenced in
    KLVD’s mental health records.   The defense argued that this
    evidence was probative of KLVD’s truthfulness and was admissible
    under M.R.E. 608(b).
    Ultimately, the military judge granted the Government’s
    motion to preclude the defense from presenting the bias evidence
    because she could not find a logical connection to the defense
    theory for admissibility:
    I’m saying that the logic breaks down for me as to why
    she would make -- the fact that she’s been expelled
    from school and is in trouble with her mother, her
    mother has spanked her or whatever, would create a
    situation where, logically, she would make an
    allegation against the accused in this particular
    case. It doesn’t -– I’m not persuaded that there’s
    even any logical connection there, that one could even
    make that argument.
    Discussion
    M.R.E. 608(c) allows for evidence to show bias, prejudice,
    or any motive to misrepresent through the examination of
    2
    After one incident of misconduct, KLVD’s mother beat her with a
    belt. The beating left marks on KLVD’s thighs and buttocks and
    ultimately resulted in intervention from Family Services.
    5
    United States v. Moss, No. 05-0545/AF
    witnesses or extrinsic evidence.3    United States v. Bahr, 
    33 M.J. 228
    , 232 (C.M.A. 1991) (citing Delaware v. Van Arsdall, 
    475 U.S. 673
    , 684 (1986)).   This Court has held that rules of evidence
    should be read to allow liberal admission of bias-type evidence.
    United States v. Williams, 
    40 M.J. 216
    , 218 (C.M.A. 1994).      When
    the military judge excludes evidence of bias, the exclusion
    raises issues regarding an accused’s Sixth Amendment right to
    confrontation.   United States v. Bins, 
    43 M.J. 79
    , 84 (C.A.A.F.
    1995).
    Where the Sixth Amendment’s right to confrontation is
    allegedly violated by a military judge’s evidentiary ruling, the
    ruling is reviewed for an abuse of discretion.    See United
    States v. Israel, 
    60 M.J. 485
    , 488 (C.A.A.F. 2005).    If an abuse
    of discretion is found, the case will be reversed unless the
    error is harmless beyond a reasonable doubt.    Id.; see also
    Bahr, 33 M.J. at 231 (where an error constitutes a violation of
    an appellant’s constitutional rights, this Court will reverse
    the findings of the court below unless we find the error was
    harmless beyond a reasonable doubt (citing Van Arsdall, 
    475 U.S. at 684
    )).   “A defendant’s right under the Sixth Amendment to
    cross-examine witnesses is violated if the military judge
    3
    The use of extrinsic evidence can be limited if it is
    collateral to an important trial issue or its relevance is not
    established. United States v. Gonzales, 
    16 M.J. 423
    , 425
    (C.M.A. 1983); United States v. Hunter, 
    17 M.J. 738
    , 739
    (A.C.M.R. 1983).
    6
    United States v. Moss, No. 05-0545/AF
    precludes a defendant from exploring an entire relevant area of
    cross-examination.”    Israel, 
    60 M.J. at
    486 (citing United
    States v. Gray, 
    40 M.J. 77
    , 81 (C.M.A. 1994)).     Relevant
    evidence is “evidence having 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.   “The partiality of a witness . . .
    is ‘always relevant as discrediting the witness and affecting
    the weight of his testimony.’”   Davis v. Alaska, 
    415 U.S. 308
    ,
    316 (1974) (quoting 3A John Henry Wigmore, Evidence § 940, at
    755 (Chadbourn rev. 1970)).
    We hold that the military judge’s exclusion of the
    proffered evidence denied Appellant his fundamental right of
    confrontation and cross-examination.    We address next the offers
    of proof and the relevance and admissibility of the evidence
    under M.R.E. 608(c).
    M.R.E. 608(c)4
    This case revolves around the conflicting testimony of
    Appellant and the alleged victim.     When an appellant claims a
    violation of the Confrontation Clause on the grounds that he was
    prohibited from conducting an otherwise appropriate cross-
    4
    Appellant also raised an issue regarding the military judge’s
    ruling on the admissibility of evidence under M.R.E. 608(b). In
    light of our ruling regarding the admissibility of the M.R.E.
    608(c) evidence, we do not address whether the military judge
    was correct in her rulings excluding the M.R.E. 608(b) evidence.
    7
    United States v. Moss, No. 05-0545/AF
    examination designed to show a witness’s bias, the appellant has
    the burden of showing that a reasonable jury might have reached
    a significantly different impression of the witness’s
    credibility if the defense counsel had been able to pursue the
    proposed line of cross-examination.    Van Arsdall, 
    475 U.S. at 680
    .    In this case, Appellant argues that trial counsel
    attempted to portray KLVD as an innocent victim with little or
    no problems beyond being a “normal” teenager.    The trial defense
    counsel wanted to respond to this assertion by showing that
    KLVD’s past acts were relevant to her motive to fabricate and
    that she fabricated the alleged rape to cast herself as a victim
    to gain favorable treatment from her parents and to improve her
    relationship with them.    At trial and before this Court,
    Appellant relies on Bahr.     In Bahr, 
    33 M.J. 233
    , this Court
    found that the military judge erred by suppressing the
    prosecutrix’s statements that she hated her mother when it was
    offered to show a motive to fabricate the rape accusation
    against her stepfather.
    Here, the military judge rejected the evidence because she
    did not find it relevant to Appellant’s theory based on the Bahr
    case.    The military judge stated:
    If the allegation had been made against the alleged
    victim’s father, for example, or the mother’s
    boyfriend, for example, and it was the mother’s
    boyfriend who was on trial here, then I could follow
    the defense counsel’s logic . . . . I’ve not heard any
    8
    United States v. Moss, No. 05-0545/AF
    evidence that would bring the accused into the picture
    at all, as to why he would be a logical target for her
    to make that allegation against.
    In overlooking the greater theory of admissibility, the military
    judge erred.
    As a result of the military judge’s ruling, the defense did
    not have the ability to attack the allegations by KLVD or
    present evidence to show why KLVD fabricated or embellished the
    true nature of the situation that occurred in the billeting
    room.    The defense was not allowed to show that KLVD was
    constantly in trouble with alcohol, drugs, and general
    misconduct, that her friends were involved in similar conduct,
    and that her mother had became more restrictive on her liberty.
    Appellant was not allowed to show that KLVD was unhappy with the
    restrictive, controlling environment she was under and that, as
    a result, KLVD had a motive to misrepresent the event with
    Appellant in order to change her own present circumstances.
    In this case, the testimony of KLVD was the heart of the
    Government’s proof for the charges.    There was no other evidence
    to corroborate the sexual misconduct.    Appellant admitted to
    sleeping in the same bed as his niece in just his underwear;
    however, that act alone does not establish the elements of
    carnal knowledge or sodomy.    There was no dispute that KLVD did,
    or was involved with, the conduct or acts the defense wanted to
    present.    There was also no dispute that KLVD experienced
    9
    United States v. Moss, No. 05-0545/AF
    certain repercussions or responses from her parents and the
    school system as a result of her conduct.     The case is a “he
    said/she said” scenario, revolving around the testimony of
    Appellant and the alleged victim.
    A reasonable panel might have reached a significantly
    different impression of KLVD’s credibility had the defense been
    able to present the excluded evidence.     As asserted by the
    defense, KLVD may have misrepresented the event with her uncle
    in order to deflect attention away from herself or change her
    situation.   The defense’s primary purpose in seeking the
    admission of this evidence was to argue that the evidence
    indicated that KLVD was getting more adverse attention from her
    parents, school, and the counseling system than she wanted.       The
    defense would have argued that KLVD was seeking ways to divert
    the focus from herself and her conduct and that being a “victim”
    was a way of accomplishing this.      The defense could also argue
    that KLVD did gain more empathy from her mother, at school, and
    in the counseling system.   This was the defense’s primary
    purpose in arguing for admission of this evidence.
    The evidence supporting the defense’s theory that KLVD
    fabricated the allegation was that there was tension between
    KLVD and her mother and that on one occasion, KLVD’s mother beat
    her, causing bruises that resulted in intervention by Family
    Services.    There was evidence that KLVD’s mother and her aunt,
    10
    United States v. Moss, No. 05-0545/AF
    Appellant’s wife, were very close.     The defense also posited
    that KLVD wanted to hurt her mother and divert her mother’s
    attention away from her by “driving” a “wedge between mom and
    sister.”    According to the defense, KLVD may not have been
    directly trying to hurt her uncle, but trying to hurt her
    mother.    Although this was not the defense’s strongest theory
    for admission of the evidence, collectively, this theory may
    have supported the defense’s theory that KLVD fabricated the
    allegations in order to deflect unwanted attention away from
    herself and problems with her parents and school.5
    Likewise, the lower court erred by affirming the ruling of
    the military judge.    The lower court focused on our ruling in
    Bahr, noting that:    “[I]n this case the relationship between the
    victim’s mother and the appellant was much more remote than in
    Bahr.”     
    2005 CCA LEXIS 139
    , at *9, 
    2005 WL 1017585
    , at *3.     This
    overlooks the fact that a reasonable juror could have been
    convinced by the defense’s theory that KLVD had a motive to
    fabricate a story and could have, therefore, formed a
    significantly different impression of KLVD’s credibility.
    5
    See Gray, 40 M.J. at 81 (military judge erred in precluding
    evidence that supported the defense theory that the appellant’s
    subordinate was the initial target of the Texas Department of
    Human Services (DHS) investigation and that the subordinate and
    his wife accused the appellant of sexual misconduct with the
    wife “in order to shift DHS attention from their own
    dysfunctional and abusive family situation”).
    11
    United States v. Moss, No. 05-0545/AF
    Pursuant to M.R.E. 608(c), the defense should have been
    allowed to cross-examine KLVD and her mother on their
    relationship, including allegations of beatings, KLVD’s alcohol
    and drug use, KLVD’s removal from school, KLVD’s suicide
    attempts, and her “general acts of disobedience.”   These topics
    should not have been off-limits during cross-examination because
    they supported a viable defense theory as to why KLVD would
    fabricate the rape allegations.    Moreover, the evidence was
    relevant as a response to the Government’s theory presented at
    trial that the delay in reporting the incident for approximately
    seven months was because KLVD did not want to cause a break in
    the relationship between her mother and her aunt and did not
    want to hurt the family.   The defense theory that she fabricated
    the allegations to get the focus off her misbehavior during that
    period of time rebuts this theory raised by the prosecution.
    M.R.E. 403
    Admission of the specific acts is “still dependent upon the
    military judge properly evaluating the evidence’s probative
    value against its potential for unfair prejudice as measured by
    Rule 403.”   2 Stephen A. Saltzburg et al., Military Rules of
    Evidence Manual § 608.02[3][a], at 6-52 (5th ed. 2003).
    Therefore, in this case, the evidence must pass a M.R.E. 403
    balancing test before it can be admitted.
    12
    United States v. Moss, No. 05-0545/AF
    The probative value of the evidence in this case is high.
    The evidence directly fits the defense theory for which it would
    have been offered.   On the other hand, the risk of unfair
    prejudice in this case is fairly low.   Although the evidence was
    probative to the defense theory, it was a double-edged sword
    that also could have hurt Appellant’s case.   When viewed in
    context of the timing of the events, KLVD’s prior bad acts could
    be seen as evidence of post traumatic stress disorder stemming
    from the alleged rape.6   Thus, the danger of unfair prejudice in
    this case does not significantly outweigh the probative value of
    admitting the evidence.
    Harmless Beyond a Reasonable Doubt
    In determining whether or not the erroneous exclusion of
    evidence is harmless, this Court considers:
    the importance of the witness’ testimony in the
    prosecution’s case, whether the testimony was
    cumulative, the presence or absence of evidence
    corroborating or contradicting the testimony of the
    witness on material points, the extent of cross-
    examination otherwise permitted, and of course, the
    overall strength of the prosecution’s case.
    Bahr, 33 M.J. at 234 (quoting Van Arsdall, 
    475 U.S. at 684
    .
    Interestingly, the trial counsel argued during her closing
    argument that the defense was unable to attack KLVD’s
    credibility and that “the only thing that [the defense] could
    6
    The actions cited in the motion in limine all occurred after
    the alleged rape but before KLVD came forward.
    13
    United States v. Moss, No. 05-0545/AF
    come up with” was inconsistencies in KLVD’s testimony and her
    prior statements.   The trial counsel acknowledged that there was
    no medical evidence, no eyewitness, and that the case “boils
    down to the credibility of the two witnesses.”   As a result of
    the military judge’s erroneous ruling, the defense had no way of
    showing bias or motive to misrepresent based upon what was going
    on in KLVD’s life during the seven months between the overnight
    stay at Tyndall Air Force Base and when KLVD reported the
    alleged sexual assault.   The defense lost its ability to attack
    the Government’s only evidence against Appellant.
    We hold that Appellant’s rights to cross-examine the
    witnesses called against him and to present his defense were
    improperly limited by the military judge’s ruling.   This case
    was a credibility contest between Appellant and KLVD.   Appellant
    acknowledged in his pretrial statement that he drank beer,
    allowed KLVD to sip a beer, and that he climbed into bed with
    KLVD to sleep, wearing nothing but his underwear.    Although
    these facts are circumstantial evidence of sexual misconduct,
    whether the members could conclude there was sexual intercourse
    and sodomy depended on whether they believed Appellant or KLVD.
    It is impossible to say whether evidence that could have been
    used to attack the credibility of KLVD would have raised some
    14
    United States v. Moss, No. 05-0545/AF
    doubt as to whether KLVD’s version of the event was accurate.7
    The military judge’s ruling essentially deprived Appellant of
    his best defense, which was to demonstrate KLVD’s bias and to
    meaningfully challenge her credibility.    It is the members’ role
    to determine whether a prosecutrix’s testimony is credible or
    biased.8   The weight and credibility of the Government’s main
    witness are matters for the members alone to decide.   Bins, 43
    M.J. at 85.   Since the excluded evidence may have tipped the
    credibility balance in Appellant’s favor, we find that the error
    was not harmless beyond a reasonable doubt.
    Conclusion
    The decision of the United States Air Force Court of
    Criminal Appeals is reversed.   The findings of guilty and the
    sentence are set aside.   The record of trial is returned to the
    Judge Advocate General of the Air Force.    A rehearing is
    authorized.
    7
    United States v. Tippy, 
    25 M.J. 121
    , 122 (C.M.A. 1987) (when a
    military judge erroneously precluded relevant evidence, this
    Court concluded that it “will not be satisfied unless impartial
    triers of fact, imbued with the full knowledge of this OSI
    conduct, tested by the crucible of cross-examination and
    confrontation, properly instructed in the laws of entrapment,
    and applying their good judgment, common sense, understanding of
    life and the ways of young men and manipulative agents, conclude
    beyond a reasonable doubt that he is guilty”).
    8
    See Olden v. Kentucky, 
    488 U.S. 227
    , 232 (1988) (“It is plain
    to us that ‘[a] reasonable jury might have received a
    significantly different impression of [the witness’s]
    credibility had [defense counsel] been permitted to pursue his
    proposed line of cross-examination.’” (quoting Van Arsdall, 
    475 U.S. at 680
    )).
    15
    

Document Info

Docket Number: 05-0545-AF

Citation Numbers: 63 M.J. 233, 2006 CAAF LEXIS 847, 2006 WL 1716391

Judges: Crawford

Filed Date: 6/21/2006

Precedential Status: Precedential

Modified Date: 11/9/2024