United States v. Barry ( 2016 )

U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
_________________________
No. 201500064
_________________________
UNITED STATES OF AMERICA
Appellee
v.
KEITH E. BARRY
Senior Chief (E-8), U.S. Navy
Appellant
_________________________
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Captain Bethany L. Payton-O’Brien, JAGC, USN.
For Appellant: Terri R. Zimmermann, Civilian Counsel;
Jack B. Zimmermann, Civilian Counsel;
Lieutenant Christopher C. McMahon, JAGC, USN .
For Appellee: Lieutenant Taurean K. Brown, JAGC, USN;
Captain Matthew M. Harris, USMC.
_________________________
Decided 31 October 2016
_________________________
Before P ALMER , M ARKS , and G LASER -A LLEN , Appellate Military
Judges
_________________________
This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
_________________________
PALMER, Chief Judge:
A military judge sitting as a general court-martial convicted the
appellant, contrary to his pleas, of one specification of sexual assault in
violation of Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 920, and sentenced him to three years’ confinement and a dishonorable
United States v. Barry, No. 201500064
discharge. The convening authority approved the sentence as adjudged, and
except for the punitive discharge, ordered the sentence executed.1
The appellant raises four assignments of error:2
(1) The evidence was factually insufficient;
(2) The convening authority abused his discretion in denying a request for
rehearing despite his doubts about the fairness and integrity of the
court-martial;
(3) The military judge committed reversible error by redacting relevant
and discoverable information from the complaining witness’s mental
health records before providing them to the defense; and
(4) The military judge committed reversible error by restricting the
appellant’s allocution rights.
We find that the findings and the sentence are correct in law and fact,
and no error materially prejudicial to the substantial rights of the appellant
occurred. Arts. 59(a) and 66(c), UCMJ.
I. BACKGROUND
In early December 2012, the appellant and AV were introduced by mutual
friends and began a dating relationship that soon became sexual. On the mid-
morning of 13 January 2013, after spending the night together in the
appellant’s hotel room aboard Naval Amphibious Base Coronado, they
engaged in a consensual sexual encounter that involved the appellant
blindfolding AV and tying her by the wrists and ankles while she was face-
down on the bed. He then, with AV’s consent, digitally penetrated her anus.
Next, however, without seeking her consent, the appellant penetrated her
anus with his penis. AV immediately responded by telling him no several
times and pleading with him to stop. When it became apparent to AV that
the appellant was not going to stop, she then asked him to “[p]lease, go
slow.”3 He complied. After approximately two minutes of penetrating AV, the
appellant climbed off her and took a shower, leaving AV still tied to the bed.
AV testified the anal sex was “tremendously” painful and “felt like something
sharp was inside and I was tearing.”4 When the appellant finished his
shower, he wiped AV’s buttocks with a towel and untied her. After AV took
1 On 16 March 2015, this court remanded the case for a new staff judge
advocate’s recommendation and convening authority’s action. The case was
thereafter re-docketed with this Court on 15 June 2015.
2 We have reordered the assignments of error raised in the appellant’s brief.
3 Record at 291.
4 Id.2
United States v. Barry, No. 201500064
her own shower, she realized she was bleeding rectally. The following day,
after telling a cousin about the Sunday morning events, AV “mentally had
accepted it was rape[.]”5 Within days she sent the appellant a Facebook
message accusing him of sexual assault; within a month she reported the
sexual assault to the Naval Criminal Investigative Service (NCIS).
II. DISCUSSION
A. Factual sufficiency
The appellant argues his sexual assault conviction was factually
insufficient. We disagree.
We review issues of factual sufficiency de novo. United States v. Beatty, 64
M.J. 456, 459 (C.A.A.F. 2007). The test for factual sufficiency is “whether,
after weighing the evidence in the record of trial and making allowances for
not having personally observed the witnesses, [we are] convinced of the
[appellant]’s guilt beyond a reasonable doubt.” United States v. Turner, 25
M.J. 324, 324 (C.M.A. 1987). We take “a fresh, impartial look at the
evidence,” applying “neither a presumption of innocence nor a presumption of
guilt” to “make [our] own independent determination as to whether the
evidence constitutes proof of each required element beyond a reasonable
doubt.” United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). Our
factual sufficiency determination is limited to a review of the “entire record,”
meaning evidence presented at trial. United States v. Bethea, 46 C.M.R. 223,
225 (C.M.A. 1973); see also United States v. Reed, 54 M.J. 37, 44 (C.A.A.F.
2000).
Proof beyond a reasonable doubt, however, does not mean that the
evidence must be free from conflict. United States v. Rankin, 63 M.J. 552, 557
(N-M. Ct. Crim. App. 2006), aff’d, 64 M.J. 348 (C.A.A.F. 2007). The
Government may prove an appellant’s intent with circumstantial evidence.
United States v. Kearns, 73 M.J. 177, 182 (C.A.A.F. 2014); United States v.
Vela, 71 M.J. 283, 286 (C.A.A.F. 2012). The fact finder may believe one part
of a witness’s testimony and disbelieve another. United States v. Goode, 54
M.J. 836, 841 (N-M. Ct. Crim. App. 2001). When weighing the credibility of a
witness, this court, like a fact finder at trial, examines whether discrepancies
in witness testimony resulted from an innocent mistake, such as a lapse of
memory, or a deliberate lie. Id. at 844.
In order to find the appellant guilty of sexual assault, the government
was required to prove, beyond a reasonable doubt:
5 Id. at 308
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(1) That on or about 13 January 2013, at or near Naval Base Coronado,
California, the appellant committed a sexual act upon AV, to wit:
penetration of her anus with his penis; and
(2) That the appellant did so by causing bodily harm to AV, to wit:
penetrating her anus with his penis without her consent.6
We have no difficulty finding the government met its burden on the first
element. Both during trial and now on appeal, the appellant concedes the
charged sexual act occurred on the alleged day and location.7 Instead, the
appellant attacks the factual sufficiency of the military judge’s guilty finding
arguing that AV consented to the charged sexual activity or, alternatively,
that he had an honest and reasonable mistake of fact that she consented.
Mistake of fact as to consent requires that the appellant held an honest and
reasonable belief that AV consented to the sexual act. RULE FOR COURTS-
MARTIAL (R.C.M.) 916(j)(1),(3), MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2012 ed.). Thus, there is both a subjective and objective component.
United States v. Goodman, 70 M.J. 396, 399 (C.A.A.F. 2011). Even if the
appellant honestly believed that AV consented, that belief must be objectively
reasonable or the defense fails. The government bears the burden of
disproving mistake of fact as to consent beyond a reasonable doubt. R.C.M.
916(b)(4).
The appellant argues AV’s consent, or his mistake of fact as to her
consent, was evidenced by her actions in the days prior to, during, and in the
immediate aftermath of the charged assault—which included: discussing her
initial affection for the appellant with her friends; exchanging flirtatious text
messages with the appellant about needing lubrication during their
upcoming weekend; consenting to the bondage, blindfolding, and digital
penetration; sitting in the appellant’s lap, hugging, and kissing him while in
her underwear after being untied and showering; washing their cars together
and buying food from an on-base restaurant together after they left the hotel;
asking the appellant if he intended to visit the following weekend; and
describing the bondage to a friend via text message, within hours of the
events, without mentioning the assault.
The military judge issued special findings, upon civilian defense counsel’s
request,8 which we find fully supported by the evidence. Specifically, the
military judge found AV credible, that she had stopped the appellant when he
6 Charge Sheet at 1. MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.),
Part IV, ¶ 45(b)(1)(B).
7 Record at 223, 569; Appellant’s Revised Brief and Assignments of Error (AOE)
of 23 March 2016 at 55-58.
8 Appellate Exhibit (AE) XL, at 1-7.
4
United States v. Barry, No. 201500064
previously attempted anal sex in December 2012, and that in their discussion
following the first episode, she “made clear to [him] she was not interested in
anal sex with him.”9 The next day the appellant again hinted that he wanted
to engage in anal sex and was again rebuffed by AV. The military judge found
these statements were corroborated by AV’s friend, who testified AV told her,
during December 2012, about rejecting the appellant’s previous anal sex
attempt.10 The military judge found credible AV’s testimony that on 13
January 2013, the appellant, without asking for permission, engaged in anal
sex with her while she was tied up and blindfolded. She found AV repeatedly
told the appellant to stop, and that his compliance with AV’s request to slow
down indicated he could hear and understand AV. The military judge found,
and the record supports, that AV was in shock in the aftermath of the assault
and did not seek help or immediately confront the appellant.
The military judge specifically considered and then rejected the defense
theory that AV fabricated her allegations either because she was upset that
the appellant did not want to continue their relationship, or because AV was
a “woman scorned.”11
During its case-in-chief, the defense called several military and civilian
witnesses who testified to the appellant’s character for leadership, honesty,
peacefulness, and overall good military character. Additionally, the defense
offered, and the military judge considered, the flirtatious text message
history between AV and the appellant while they were dating; AV’s pre-
assault text messages with her friends describing both her affection for the
appellant and hopes for a long-term relationship with him; AV’s e-mail to the
appellant accusing him of sexual assault, and his response denying the
allegation by stating, “I thought [I] was being playful, fulfilling a fantasy that
YOU had commented on (50 Shades of Grey)[;]”12 several text message
conversations between AV and her friends in which they offered emotional
support to her in the aftermath of the assault; AV’s statement to NCIS, and
several video segments of AV’s 25 February 2013 NCIS interview in which
AV appears to be relatively relaxed and un-traumatized.
The appellant did not testify on the merits.
Having considered all of the admitted evidence, we find AV’s testimony
was cogent, compelling, and credible. She was unequivocally clear in her
words spoken directly to the appellant, both before and during the assault,
9 Id. at 3.
10 Record at 497.
11 AE XL at 6.
12 Defense Exhibit B at 4; Appellant’s Revised Brief and AOEs at 60.
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that she did not like anal sex and did not want to engage in anal sex with
him. Her consent to bondage and other sexual activity does not, under the
circumstances of this case, equate to consent to anal sex. Even if we assumed,
arguendo, that the appellant held an honest belief that she consented, we are
convinced beyond a reasonable doubt that such a belief would have been
unreasonable. Thus, after weighing all the evidence in the record of trial and
having made allowances for not having personally observed the witnesses, we
are convinced beyond a reasonable doubt of the appellant’s guilt.13
B. Convening authority abuse of discretion
The appellant asserts the convening authority abused his discretion in
declining a clemency request to disapprove the guilty findings or,
alternatively, order a hearing before a different trial judge. Specifically, in a
clemency submission, the appellant raised concerns that the military judge
convicted on insufficient evidence, curtailed the appellant’s allocution rights
during sentencing, appeared biased against the defense, and created an
appearance of impropriety by meeting with her supervisory judge during
deliberations.
The appellant argues the convening authority’s stated, serious misgivings
about the trial should have prompted him to grant the requested clemency.
In particular, the appellant points to the convening authority’s strongly
expressed concerns about whether the appellant received a fair trial or an
appropriate sentence. He also expressed concern about the military judge’s
judicial temperament “call[ing] into question the legality, fairness, and
impartiality of this court-martial.”14 The convening authority encouraged this
13 In arguing AV’s consent, the appellant also relies on his own sworn sentencing
testimony at trial. We address the admissibility of that testimony for findings
purposes in assessing the fourth AOE, infra.
14 General Court-Martial Order No. 05-15 dated 3 June 2015. In relevant part,
the convening authority stated:
In my seven years as a General Court-Martial Convening Authority, I
have never reviewed a case that has given me greater pause[.] The
evidence presented at trial and the clemency submitted . . . was
compelling and caused me concern as to whether SOCS Barry received
a fair trial or an appropriate sentence. I encourage the Appellate Court
to reconcile the apparent divergent case law addressing the testimony
that an accused may present during sentencing for the purpose of
reconsideration under R.C.M. 924. Additionally, having personally
reviewed the record of trial, I am concerned that the judicial
temperament of the Military Judge potentially calls into question the
legality, fairness, and impartiality of this court-martial. The validity of
the military justice system depends on the impartiality of military
judges both in fact and in appearance. If prejudicial error was
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court to remand the case if we find prejudicial error was committed. The
appellant now asks us to find that the convening authority’s declination to
disapprove the guilty findings or order a hearing was a “politically expedient .
. . abdicat[ion of] his responsibilities[.]”15 We disagree and find no error in the
court-martial’s findings or in the convening authority’s exercise of his
discretion.
We review a convening authority’s denial of a request for a rehearing and
a decision to approve the findings and sentence for an abuse of discretion.
See United States v. Hull, 70 M.J. 145, 153 (C.A.A.F. 2011); United States v.
Lofton, 69 M.J. 386, 391 (C.A.A.F. 2011) (citing United States v. Ruiz, 49 M.J.
340, 348 (C.A.A.F. 1998)). “The abuse of discretion standard is a strict one,
calling for more than a mere difference of opinion. The challenged action
must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous.”
United States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F. 2010) (citations and internal
quotation marks omitted).
Congress provided convening authorities broad discretion to act on the
findings and sentence of a court. Specifically, the version of Article 60(c),
UCMJ, in force at the time of the appellant’s offense states:
(1) The authority under this section to modify the findings and
sentence of a court-martial is a matter of command prerogative
involving the sole discretion of the convening authority. . . .
(2) . . . The convening authority . . . in his sole discretion, may
approve, disapprove, commute, or suspend the sentence in
whole or in part.
(3) Action on the findings of a court-martial by the convening
authority . . . is not required. However, such person, in his sole
discretion, may–
(A) dismiss any charge or specification by setting aside a
finding of guilty thereto; or
(B) change a finding of guilty to a charge or specification to
a finding of guilty to an offense that is a lesser included
offense of the offense stated in the charge or specification.
committed, I strongly encourage the Appellate Court to consider
remanding this case for further proceedings or, in the alternative,
disapproving the punitive discharge pursuant to Article 66(c), UCMJ,
thereby allowing the accused to retire in the rank that he last
honorably served.
15 Appellant’s Revised Brief and AOEs at 12.
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A litany of court decisions reinforce the plain text of Article 60. See, e.g.,
United States v. Nerad, 69 M.J. 138, 145 (C.A.A.F. 2010) (noting that “[t]he
language of Article 60(c), UCMJ, gives a convening authority unfettered
discretion” to modify findings and to approve, disapprove, or suspend a
sentence); United States v. Brown, 40 M.J. 625, 629 (N.M.C.M.R. 1994) (“In
his sole discretion, [the convening authority] may approve, disapprove,
commute, or suspend the sentence in whole or in part.”) (citation omitted,
alteration and emphasis in original); Ruiz, 49 M.J. at 348 (“When an
appellant requests the convening authority to order a post[-]trial Article 39(a)
session, it is a matter for the convening authority's sound discretion whether
to grant the request.”).
Although the convening authority’s action expresses important concerns
about the evidence and the military judge, it also evidences a clear
understanding of his legal options. It states he conducted a detailed review of
the record of trial and that he considered the results of trial, the
recommendations from his staff judge advocate, and all matters properly
submitted by the appellant and the victim. He specifically acknowledges his
“authority to grant the clemency relief requested by the accused.”16
Moreover, the convening authority appears to have followed the advice of his
staff judge advocate—who, on 13 April 2015, after citing the appellant’s
allegations of legal error, told the convening authority it is “[m]y position that
corrective action is warranted on neither the findings nor sentence.17 On 12
May 2015, the acting staff judge advocate similarly recommended against
taking corrective action on the findings or sentence and further advised that
the case law on the appellant’s rights to allocute (the fourth AOE addressed,
infra) “requires resolution by the appellate authority.”18
“From the record before us it appears the appellant received that to which
he was entitled–an individualized, legally appropriate and careful review of
his sentence by the convening authority.” Brown, 40 M.J. at 629-30 (citation
omitted). Here the convening authority, fully understanding the range of his
post-trial discretion and after being correctly advised on the law, took his
action in compliance with the law. He understood that he could have granted
the appellant’s requested relief, but after fully considering his legal options,
decided instead to forward the case for appellate review. Accordingly, we find
16 General Court-Martial Order No. 05-15 dated 3 June 2015 at 2.
17 Staff Judge Advocate’s (SJA’s) Addendum to the Recommendation ICO SOCS
[Barry] of 13 April 2015 at 1.
18 SJA’s Addendum to the Recommendation ICO SOCS [Barry] of 12 May 2015 at
1.
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his action was not arbitrary, fanciful, clearly unreasonable, or clearly
erroneous and therefore not an abuse of his discretion. Lloyd, 69 M.J. at 99.
C. Withholding psychotherapist-patient records reviewed in camera
Within two days of the sexual assault, AV sought and began participating
in counseling with two private civilian therapists. At trial, the defense sought
AV’s therapy records, arguing she began counseling because of her
interaction with the appellant and therefore the therapist’s records likely
contained information concerning AV’s “medications, inconsistent
statements, prior sexual assault allegations, and information to rebut any
allegation of victim impact.”19 During a motions hearing brought under
MILITARY RULE OF EVIDENCE (MIL. R. EVID.) 513, SUPPLEMENT TO MANUAL
FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), and over the
prosecutor’s objection,20 AV was questioned by the military judge and
revealed her therapists’ names.21 The military judge then ordered subpoenas
issued for AV’s treatment records and further directed the records “come
straight to me and not to anybody else.”22 She stated she would review the
records “to determine if there is anything in there that is relevant to the
defense”23 and that the “only records [she was] inclined to turn over are what
[AV] said about the incident itself and any perception or mental health issues
that might impair [AV’s] ability to proceed.”24 The records were subsequently
provided to the military judge, who, after conducting her in camera review,
gave redacted versions of the records to the parties. When attaching the
redacted and sealed records as appellate exhibits, the military judge stated
only that she “determined a few entries were releasable to the Defense,
copied those pages, [and] redacted out the portions that were not
releasable[.]”25
The appellant now argues the military judge’s redactions included
constitutionally-required, relevant, and discoverable information which, if
disclosed at trial, could have been used in the formation of the defense
strategy, to guide investigative steps, and to impeach AV’s testimony at trial.
In particular, the appellant asserts his defense counsel could have used
certain portions of the redacted therapist notes to cross-examine AV on:
19 AE V at 5.
20 AV was not represented by a Victim’s Legal Counsel.
21 Record at 45-46.
22 Record at 59; AE XIV at 1.
23 Record at 59.
24 Id. at 32.
25 Id. at 87.
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(1) her changing demeanor when variously describing the assault to
NCIS, her doctors, and in testimony, and how her traumatized effect
increased over time;
(2) a therapist’s annotation that AV had not told many people about the
assault, when evidence exists that she told many friends and sought
their support;
(3) other stressors and family problems;
(4) a February 2014 therapist note indicating her therapist explored with
AV “how her story has begun to transform”;
(5) AV’s concerns that the trial counsel was going to be replaced; and
(6) AV’s unease in February 2014 when she received some sort of award
from someone she believed was the convening authority and who AV
believed might be involved in the case.
We review a military judge’s decision to disclose or withhold
psychotherapist-patient records reviewed in camera for an abuse of
discretion. United States v. Klemick, 65 M.J. 576, 580-81 (N-M. Ct. Crim.
App. 2006).26 “To find an abuse of discretion requires more than a mere
difference of opinion–the challenged ruling must be arbitrary, fanciful, clearly
unreasonable, or clearly erroneous.” United States v. Jasper, 72 M.J. 276,
279-80 (C.A.A.F. 2013) (internal quotation marks and citation omitted).
The President implemented MIL. R. EVID. 513 in response to the Supreme
Court’s decision in Jaffee v. Redmond, 518 U.S. 1, 11 (1996) (recognizing
confidential communications between a psychotherapist and patient must be
protected from involuntary disclosure in order to promote society’s interest in
encouraging people with mental and emotional problems to seek treatment).
See also United States v. Clark, 62 M.J. 195, 199 (C.A.A.F. 2005) (explaining
the rule is “based on the social benefit of confidential counseling recognized
by Jaffee, and similar to the clergy-penitent privilege” (quoting MANUAL FOR
COURTS-MARTIAL, UNITED STATES (2000 ed.), App. 22, at A22-44)).
Under MIL. R. EVID. 513(a), “[a] patient has a privilege to refuse to
disclose and to prevent any other person from disclosing a confidential
communication made between the patient and a psychotherapist . . . in a case
arising under the [UCMJ], if such communication was made for the purpose
of facilitating diagnosis or treatment of the patient’s mental or emotional
26 Although the appellant, citing United States v. Roberts, 59 M.J. 323, 326,
(C.A.A.F. 2004), invites us to apply a de novo standard of review, we decline to do so.
The records at issue were never in the Government’s possession, thus the R.C.M.
701(a)(2)(A) disclosure requirements do not apply.
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condition.” Such communications may only be disclosed pursuant to eight
defined exceptions.27 MIL. R. EVID. 513(d).
We find that the military judge did not abuse her discretion when she
redacted portions of AV’s medical records before providing them to the
parties.
As a threshold matter, we first conclude the contested records are, in fact,
privileged psychotherapist-patient communications as defined by MIL. R.
EVID. 513. Second, AV did not consent to, or otherwise waive, the disclosure
of her privileged mental health records.28 Third, given the case facts,
exceptions (1)-(7) do not apply, and the only colorable exception is “when
admission or disclosure of a communication is constitutionally required.”
MIL. R. EVID. 513(d)(8).
The results or reports of mental examinations (if in the government’s
possession), must be made available to the defense when it is “material to the
preparation of the defense[.]” R.C.M. 701(a)(2)(B). Nothing in the discovery
rules, however, “shall be construed to require the disclosure of information
protected from disclosure by the Military Rules of Evidence.” R.C.M. 701(f).
In assessing whether the communications were constitutionally required,
we recognize “[t]he ability to question adverse witnesses . . . does not include
the power to require the pretrial disclosure of any and all information that
might be useful in contradicting unfavorable testimony[and that] the
Confrontation Clause only guarantees ‘an opportunity for effective cross-
examination, not cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.’” Pennsylvania. v. Ritchie, 480 U.S.
39, 53, (U.S. 1987) (per curiam) (quoting Delaware v. Fensterer, 474 U.S. 15,
20 (U.S. 1985) (emphasis in original)). Further, we note “well-established
rules of evidence permit trial judges to exclude evidence if its probative value
is outweighed by certain other factors such as unfair prejudice, confusion of
the issues, or potential to mislead the jury.” Holmes v. South Carolina, 547
U.S. 319, 326 (2006) (citing FEDERAL RULE OF EVIDENCE 403) (additional
citations omitted). “An accused 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
27 The 2015 National Defense Authorization Act has since deleted the
“constitutionally required” exception from MIL. R. EVID. 513(d)(8). See Pub. L. No.
113-291, § 537, 128 Stat. 3292, 3369.
28 AE VIII at 1; Record at 43 (AV testified during the MIL. R. EVID. 513 motion
hearing that she considers the defense request for her mental health records as
“being attacked [and that] it’s just a way to intimidate me”).
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in the record.” United States v. Sullivan, 70 M.J. 110, 115 (C.A.A.F. 2011).
Finally, we recognize “[i]mpeachment ‘evidence is material only if there is a
reasonable probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different.’” United States v.
Morris, 52 M.J. 193, 197, (C.A.A.F. 1999) (quoting United States v. Bagley,
473 U.S. 667, 682 (1985)) (additional citation omitted).
Remaining mindful of the societal interests in promoting confidential
counseling, as expressed in Jaffee v. Redmond, we next assess whether the
information redacted by the military judge was material and whether its
disclosure to the defense would have led to a different result.
1. AV’s demeanor
The appellant argues his defense counsel would have used AV’s redacted
mental health notes to cross-examine her on her demeanor becoming more
“traumatized” during the course of her therapy as compared to when she was
interviewed by NCIS. We find such evidence neither material nor relevant.
First, we find nothing in the therapy notes that was inconsistent with AV’s
testimony. Second, we are unable to discern how trial defense counsel could
have used the therapy notes to attack AV’s credibility. Had defense asked her
if she portrayed a traumatized affect during the course of her therapy
sessions, she would have doubtlessly agreed and provided the same answers
she provided during her sentencing testimony: that she was diagnosed with
PTSD, that she suffered daily crying for months and then random crying
outbursts for even more months, and that she became hyper-paranoid and
vigilant.29 We are unable to conclude that these responses, when balanced
against her relatively relaxed demeanor when being interviewed by a female
NCIS agent, would have caused a different result in the proceedings.
Additionally, we find the redacted notes unnecessary when balanced
against other available evidence. The defense offered recorded segments of
AV’s NCIS interview into evidence, allowing the military judge to compare
AV’s exact demeanor during her interview to her courtroom demeanor.
Additionally, at least one released therapy note indicated AV appeared
traumatized (e.g., “sad,” “crying,” and in a “state of shock”).30 Thus, had the
appellant wanted to cross-examine AV on her demeanor using the therapy
notes, he could have done so. Also, notwithstanding the military judge’s
redactions, the appellant used the NCIS video interview to substantially
cross-examine AV and make exactly the point he now claims he was
prevented from presenting.31 Finally, other evidence of AV’s post-assault
29 Record at 610-11.
30 AE XXI at 7.
31 Record at 326, 330-31, 333-36.
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trauma demeanor was readily available in the form of her co-workers and
friends, who were known to the defense and who testified during the
sentencing phase of the trial. These available, alternate witnesses to AV’s
demeanor made piercing the privilege unnecessary. See Klemick, 65 M.J. at
580 (considering whether the information sought was merely cumulative of
other information available and whether the moving party made reasonable
efforts to obtain the same or substantially similar information through non-
privileged sources in determining whether an in camera review of
communications covered by MIL. R. EVID. 513 was required).
2. AV’s disclosures to others
The appellant asserts the military judge erred by withholding a May 2013
therapy record which noted AV said she had “not told many people” of the
assault.32 Given her court-martial testimony and other evidence that AV
discussed the assault with close friends, the appellant argues the privileged
communication would have provided a ripe area for cross-examination and
argument. We disagree.
The appellant provides no insights as to how the inherently subjective
statement could actually be used at his court-martial. Assuming the
appellant intended to use AV’s statement to impeach her testimony, and
further assuming, if cross-examined on this point, that AV agreed she told
her therapist she did not tell “many” people about the assault, we do not
believe this would cause any fact-finder to reach a different result.
Regardless of what AV’s definition of the word “many” or even “told” (which
could mean in e-mail, or text message, or in person), the evidence indicates
she did tell her circle of close friends shortly after the assault occurred.
Taken together, we find AV’s potential statement, made more than four
months after the assault during a private therapy session, to be neither
material nor relevant.
3. Other stressors on AV
The appellant argues that AV’s medical records indicate she had “other
stressors” in her life, and had such information been disclosed to him, “it
could have led to additional discovery requests and helped to further develop
Defense strategy, cross-examination, and argument on findings as well as at
sentencing.”33 The appellant, however, now armed with the un-redacted
records, provides no insights or theories as to what that different strategy,
cross-examination, or argument would be. In general terms, the stressors the
appellant identifies relate to AV’s family and financial issues. We have
32 AE XX at 4.
33 Appellant’s Revised Brief and AOEs at 28.
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carefully examined the record and find these identified stressors are wholly
unrelated to the charges offenses. Indeed, all the therapy notes describe
events and circumstances that occurred long after the assault and involved
people and events not associated with the assault, and thus, these “stressors”
appear to be exactly the kind of information MIL. R. EVID. 513 is designed to
protect. See Jaffee, 518 U.S. at 11; see also Sullivan, 70 M.J. at 117 (holding
that evidence of a witness’s psychological state is properly excluded if it did
not affect her ability to perceive and tell the truth)). Finding no relevant
nexus to the assault or the appellant, we conclude the redacted notes related
to the “other stressors” are not material.
4. Transforming story
The appellant argues that a March 2014 counseling record stating AV’s
therapist “documented how over time, [AV’s] ‘story has begun to transform’”
was relevant and should have been made available for the defense’s cross-
examination of AV.34 We disagree. The entire entry actually reads, “[AV]
spoke of coming to terms with how she was impacted and changed through
this experience. [Therapist] explored with [AV] how her story had begun to
transform.”35 When read in context with other entries describing some
relative improvements in AV’s depression, sleep, and outlook, it is readily
apparent the entry was referring to AV’s personal growth and the
development of internal coping strategies during her 11 months of counseling
with this therapist.
Additionally, although with the benefit of hindsight, a review of AV’s
initial Facebook message to the appellant, her February 2013 statement to
NCIS, and her in-court testimony indicate that AV’s recounting of the sexual
assault did not change or “transform” over time. We are satisfied that had the
military judge provided the counseling statement and permitted cross-
examination thereon, the results of the proceedings would not be different.
Morris, 52 M.J. at 197.
5. New trial counsel
The appellant wanted to introduce a therapist’s March 2014 comment
that AV had been notified “that her current attorney would be taken off” her
case and “another would be taking his place.”36 The appellant argues this
comment about AV’s “attorney,”—which he infers meant the trial counsel—
combined with other evidence that she conducted her own investigation
(locating the staff worker who cleaned the appellant’s hotel room, researching
34 Id.
35 AE XX at 14.
36 Id. at 14-15.
14
United States v. Barry, No. 201500064
the appellant’s real estate transactions, and attempting to locate the
appellant’s ex-girlfriends) demonstrated that she was emotionally invested in
the prosecution of the case. As such, the appellant asserts he should have
been provided the counseling record to explore the matter during AV’s cross-
examination. We again disagree.
First, there is no mention of AV’s “investigative” efforts in her therapy
records, thus the only information at issue is the entry related to “her
attorney.” Again, when read in context the statement’s lack of materiality
becomes apparent. Immediately after this entry, AV’s therapist elaborated
that AV was disappointed with the “constant shuffle,” which she described as
“disheartening.”37 Other than expressing fears about pending court
proceedings and delays, her counseling record makes no mention of her
emotional investment in the investigation and prosecution. As such, we find
the information neither relevant nor material.
Second, even if we assumed AV’s comment about her “current attorney”
indicated her emotional investment in the investigation, and was thus
relevant fodder for cross-examination, other evidence was available and
known to the defense to adequately address the issue. Indeed, the military
judge permitted the defense to extensively cross-examine AV on her own
investigative efforts, including internet searches for the appellant, seeking a
gynecological examination, contacting the appellant’s hotel to locate and
attempt to question the cleaning staff, seeking the appellant’s real estate
records, plotting his properties on a map, and contacting a police department
near the appellant’s previous command. As such, the psychotherapist-patient
records were cumulative with other readily available information, thus
negating the necessity of invading the privilege. Klemick, 65 M.J. at 580.
6. AV’s relationship with the convening authority
The appellant cites two examples from AV’s therapy notes which he
frames as “AV’s relationship with the convening authority” and argues
should have been disclosed before trial.38 A complete reading of the entries
reveals a February 2014 chance encounter wherein she believes she received
an award from a commanding officer whom she thought might be the
convening authority. Specifically, the therapy notes state, “[AV] feels unsure,
her thoughts that he may be possibly involved in the case. [AV] noted not
saying more than ‘thank you’ to this man, she [reportedly] felt shaky near
him.”39 In May 2014, the therapy notes indicate that “[AV] saw admiral Loci
37 Id.
38 Appellant’s Revised Brief and AOEs at 29.
39 AE XX at 14.
15
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[sic] again at another ceremony, and at this [point AV] knew the case was
going to trial. Awkward. Uncomfortable being so close to the generalized
source of pain.”40
When reviewed in context, it becomes apparent AV had no relationship
with the convening authority and, further, there was nothing about their
chance meetings to indicate any nexus to the case. The counseling note
indicates AV did not fully understand the convening authority’s role, was not
sure he was the convening authority, and did not discuss the case with him.
Moreover, the first encounter occurred before the appellant’s commanding
officer forwarded the case to the general court-martial convening authority
and almost a month before the staff judge advocate signed his pretrial advice.
In their second encounter three months later, AV seemed to better appreciate
the convening authority’s role, but there was again no discussion of the case
and nothing to indicate the convening authority understood who AV was.
Accordingly, when viewed in context, we again find these notes were not
material and, had they been provided to the defense, would not have caused a
different result in the proceedings.
Consequently, we find none of the excluded psychotherapist-patient
records contain information that was material, relevant, or necessary for the
defense. We are further satisfied the exclusion of the therapy notes did not
implicate the appellant’s constitutional rights. “The question is whether ‘[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.’” United States v. Collier, 67 M.J. 347,
352 (C.A.A.F. 2009) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 680
(1986)) (alterations in original). We are satisfied, based on the reasoning set
forth above, that had the military judge provided the redacted records to the
defense, the military judge serving as the fact-finder would not have had “a
significantly different impression of [AV’s] credibility.” Id.D. Appellant’s allocution rights
The appellant argues the military judge abused her discretion when she
interrupted and then restricted the appellant’s sworn testimony during the
presentencing phase of his court-martial. In particular, the military judge
would not allow the appellant to describe a conversation he purportedly had
with AV on the day prior to the assault in which he claims AV asked him
whether he would be “open to experiment[ing with] . . . bondage and anal
40 Id. at 16. The convening authority in this case was Rear Admiral Lorge.
However, the charges were referred to general court-martial on 31 March 2014 by the
Acting Commander, Navy Region Southwest.
16
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sex.”41 By restricting his testimony, the appellant now avers the military
judge prevented him from explaining the relevant events of the assault from
his perspective in a way that could have lessened his criminality (e.g., that
the appellant had an honest but mistaken belief that AV consented to the
anal sex). Additionally, the appellant argues that by limiting his testimony,
the military judge prevented him from effectively rebutting AV’s statements
impugning his character.
A military judge’s decision to restrict an accused’s sentencing statement is
reviewed for an abuse of discretion. United States v. Sowell, 62 M.J. 150, 152
(C.A.A.F. 2005). Although the law generally accords the defense significant
latitude in presenting evidence during sentencing, the right is “not wholly
unrestricted.” Id. (citation and internal quotation marks omitted). During a
trial’s sentencing phase, the defense may present matters in extenuation,
“including those reasons for committing the offense, which do not constitute a
legal justification or excuse.” R.C.M. 1001(c)(1)(A) (emphasis added). Courts
have long held that an accused cannot impeach the findings during
sentencing. “[A]n accused is entitled to vigorously contest his innocence on
findings, but is not entitled to do so on . . . sentencing. Sentencing is intended
to afford the members the opportunity to focus on and address matters
appropriate for individualized consideration of an accused’s sentence.” United
States v. Johnson, 62 M.J. 31, 37 (C.A.A.F. 2005). See also United States v.
Teeter, 16 M.J. 68, 72-73 (C.M.A. 1983) (upholding a military judge’s
members instruction to disregard an accused’s sworn sentencing testimony
wherein he attempted to resurrect an alibi defense, noting there is “no
obligation, either under the Constitution or elsewhere, to provide an accused
two chances to defend on the merits.”); Sowell, 62 M.J. at 152 (reaffirming
that an accused may not impeach the findings during the sentencing phase of
trial); United States v. Tobita, 12 C.M.R. 23, 27-28 (C.M.A. 1953) (holding a
Law Officer properly excluded the accused’s statements during his pre-
sentencing hearing that extended to a legal justification).
At trial, after the military judge interrupted the appellant’s sentencing
testimony regarding AV’s purported desire to experiment with anal sex, she
specifically asked the civilian defense counsel if the purpose of his
examination was to “[get] into the merits of my findings[?]”42 The defense
counsel agreed it was, and then explained his intent was to eventually ask
the military judge to reconsider her findings. He explained the testimony was
intended to provide the appellant’s state of mind, and his version of events
along with background and context. After a recess, the defense counsel
41 Record at 752.
42 Id.17
United States v. Barry, No. 201500064
further asked the military judge to consider the appellant’s version of events
in extenuation and mitigation and to weigh the testimony as she deemed
appropriate. Thereafter, the defense counsel moved for reconsideration,
which the military judge denied. The defense did not argue, as the appellant
does now, that a purpose of the appellant’s testimony was to demonstrate his
honest, but unreasonable, belief AV consented to the sexual acts.
We are satisfied the military judge did not abuse her discretion when
limiting the appellant’s testimony. After confirming the defense intended to
use the testimony, in part, to seek reconsideration, she properly cited
prevailing case law and the Rules for Courts-Martial that prohibit verdict
impeachment in sentencing. She then sua sponte recessed the court to give
civilian defense counsel the opportunity to produce case law that would
permit the accused’s sentencing testimony to impeach the verdict. The
defense produced no case to support his impeachment efforts.43 The military
judge also confirmed the defense possessed during findings the evidence it
sought to elicit, and thus she would not let them use it to re-litigate findings
during sentencing. Johnson, 62 M.J. at 37; Teeter, 16 M.J. at 73.
Under these circumstances we find the military judge’s actions were not
“arbitrary, fanciful, clearly unreasonable, or clearly erroneous,” and we will
not disturb them. Lloyd, 69 M.J. at 99.
Even if we assumed that the military judge abused her discretion by
limiting the appellant’s testimony, we find such error harmless. Although
initially preventing the appellant from providing testimony inconsistent with
the verdict, the military judge ultimately granted defense counsel “leeway
under [R.C.M] 1001(c)” to present matters in extenuation and mitigation but
cautioned, “the accused is entitled to one trial on the merits, not two. And, if
you’re going too far a field [sic] . . . I will shut you down.”44 Notwithstanding
this warning, the military judge permitted the appellant to discuss the
following under direct and redirect examination: that AV sat in his lap after
the assault and kissed him; that AV was upset when he cancelled their date
planned for the following weekend; that “there [was] absolutely no time [the
appellant had] malicious intent or . . . meant to harm AV [or] sought to harm
her in any way[;]”45 and that the night before the assault he and AV
discussed a fantasy about “being tied up and about anal sex.”46 On cross-
examination, the appellant testified, again without interruption by the
43 Id. at 755.
44 Id. at 759.
45Id. at 763. In fact, the military judge overruled a trial counsel objection to this
response.
46 Id. at 770.
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military judge, that he told AV “to go to hell” because she had accused him of
being a rapist; that the sexual encounter was “AV’s fantasy;” that he denied
AV’s description of the sexual assault including that she told him to stop, by
saying, “[t]hat’s not what I had done . . . [a]nd that’s not what was said;”47
and that the night before the sexual assault, AV told him she was willing to
experiment, to which he responded, he was “comfortable with whatever you
are,” and she replied, “anal sex.”48 He also claimed his ex-girlfriends could
verify that he did not participate in anal sex.
In short, in spite of the military judge’s initial ruling, she still gave the
appellant wide latitude to discuss his version of and his perspective on the
charged offenses. The military judge, as the fact finder, considered the
appellant’s denial of wrongdoing, his belief that he was participating in AV’s
fantasy, and his belief that she wanted to experiment with anal sex. Further,
by permitting and considering his perspective on the sexual encounter, the
military judge was free to consider such evidence when weighing the
prosecution’s evidence and considering the trial counsel’s argument. Indeed,
civilian defense counsel still framed much of his sentencing argument as a
motion for reconsideration in which he challenged the plausibility of AV’s
testimony. Thus, even if the military judge arguably abused her discretion in
initially interrupting the appellant’s direct examination, we find she
ultimately gave the appellant the latitude to present evidence that was
inconsistent with the verdict, that rebutted the prosecution’s evidence, and
that could be considered in extenuation and mitigation. Therefore, finding no
prejudice in the military judge’s initial ruling, we decline to grant relief. Art.
59(a), UCMJ.
III. CONCLUSION
The findings and the sentence are affirmed.
Senior Judge MARKS and Judge GLASER-ALLEN concur.
For the Court
R.H. TROIDL
Clerk of Court
47 Id. at 767.
48 Id. at 768. AV later testified in rebuttal that she and the appellant did not
discuss anal sex the day prior to the assault and that she did not reverse her
previously stated opposition to anal sex. Id. at 781-82.
19