United States v. Mullins , 2010 CAAF LEXIS 541 ( 2010 )

UNITED STATES, Appellee
v.
Russell B. MULLINS, Master-at-Arms First Class
U.S. Navy, Appellant
No. 07-0401
Crim. App. No. 200200988
United States Court of Appeals for the Armed Forces
Argued April 20, 2010
Decided June 28, 2010
BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, STUCKY, and RYAN, JJ., joined.
Counsel
For Appellant: Major Anthony W. Burgos, USMC (argued);
Lieutenant Kathleen L. Kadlec, JAGC, USN (on brief).
For Appellee: Brian K. Keller, Esq. (argued); Lieutenant
Timothy H. Delgado, JAGC, USN (on brief); Colonel Louis J.
Puleo, USMC, and Lieutenant Duke J. Kim, JAGC, USN.
Military Judge: Robert B. Wities
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Mullins, No. 07-0401/NA
Judge BAKER delivered the opinion of the Court.
A general court-martial composed of members convicted
Appellant, contrary to his pleas, of rape of a child, forced
sodomy of a child, two specifications of indecent acts and two
specifications of possession of child pornography, in violation
of Articles 120, 125, and 134, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. §§ 920, 925, and 934 (2000), respectively.
The adjudged and approved sentence included a dishonorable
discharge, confinement for ten years, forfeiture of all pay and
allowances, and reduction to the grade of E-1. The United
States Navy-Marine Corps Court of Criminal Appeals (CCA)
dismissed one of the specifications of child pornography, but
affirmed the remaining findings of guilt and the sentence.
United States v. Mullins, No. NMCCA 200200988, 2006 CCA LEXIS
327, at *46, 2006 WL 4573011, at *16 (N-M. Ct. Crim. App. Dec.
7, 2006) (unpublished). In 2008, this Court granted review of
two issues, including one regarding expert testimony on the
frequency of false positives in cases of child molestation. The
Court set aside the decision of the CCA and remanded for a new
Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2006), review. United
States v. Mullins, 66 M.J. 468 (C.A.A.F. 2008).
In the second CCA opinion, the court held that while there
was error in allowing the expert to testify about the children’s
veracity, for the purposes of plain error review it was neither
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obvious nor prejudicial in light of the military judge’s
instructions. United States v. Mullins, No. NMCCA 200200988,
2009 CCA LEXIS 171, at *15, 2009 WL 1393229, at *6 (N-M. Ct.
Crim. App. May 14, 2009) (unpublished). The CCA adopted the
other conclusions from the first CCA opinion. Id. at *22-*23,
2009 WL 1393229, at *8. We granted review of the following
issues:
I. WHETHER THE LOWER COURT ERRED IN HOLDING THAT THERE
WAS NOTHING IMPERMISSIBLE IN THE MILITARY JUDGE
ALLOWING THE GOVERNMENT TO INTRODUCE LIE DETECTOR
TESTIMONY IN VIOLATION OF MILITARY RULE OF EVIDENCE
702.
II. WHETHER THE LOWER COURT DENIED APPELLANT DUE PROCESS
WHEN IT DENIED HIM RELIEF DUE TO EXCESSIVE POST-
TRIAL PROCESSING DELAY AND DENIED HIS SUPPLEMENTAL
ASSIGNMENTS OF ERROR.
We hold that it was error to admit expert testimony from which
members could infer there was a 1 in 200 chance that the
allegations were false. However, we conclude that the error did
not materially prejudice Appellant’s substantial rights in light
of the military judge’s corrective instructions and the time at
which they occurred. Additionally, Appellant’s due process
rights were not violated because the post-trial delay in this
case was not prejudicial.
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I. EXPERT TESTIMONY
A. Background
Appellant had two daughters with Tiffany Miller, DM and SM,
who were nine years old and seven years old respectively, at the
time of the offenses. On June 18, 2000, DM told her mother that
Appellant had done “rude things” to her. A few days later, both
girls were interviewed by a forensic specialist and a few weeks
later they were examined by a sexual assault nurse examiner. DM
and SM testified that between June 1999 and January 2000,
Appellant forced them to perform indecent acts on him, including
oral sex and masturbation. SM testified that she had been
raped. The girls also stated that Appellant had child
pornography on his computer and forced them to watch those
materials.
During the trial, Cynthia Conrad, a forensic child
interviewer for the Kitsap County prosecutor’s office, testified
about the types of interviews she performs. She stated that a
normal seven- to nine-year-old child might understand sexual
intercourse but would not understand oral or anal sex, male
masturbation, or ejaculation. She also testified that the
characteristics she saw in the victims’ interviews were
“consistent . . . with a child who had been sexually abused or .
. . a child who may have been sexually abused.” In response to
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her testimony, the military judge gave a sua sponte instruction,
stating:
[N]o witness is a human lie detector. That is no one
–- no one who testifies in this courtroom can know if
someone else is telling the truth or lying. You are
advised that only you, the members of this court, can
determine the credibility of the witnesses and what
the ultimate facts of this case are. No witness,
including an expert witness, can testify that someone
else’s account of what happened is true or credible,
that a person believes the alleged victim or that, in
fact, a sexual encounter actually occurred.
On redirect, Ms. Conrad testified about the frequency of
children lying about sexual abuse, saying that it was less than
“1 out of 100 or 1 out of 200.” The military judge then asked
Ms. Conrad:
[D]o you have any forensic, that is, scientifically
accurate way of proving whether the child is telling
the truth or not? In other words . . . the only way
that you typically could know that is if the child
later comes forth and says ‘Yes, I made it up,’ or . .
. unless that [defendant] ultimately confesses, you
would ultimately never know who was telling the truth
and who wasn’t, is that correct?
Ms. Conrad responded affirmatively: “That’s correct.” There
was no objection at trial and defense counsel cited this last
bit of testimony during his closing argument.
B. Analysis
Appellant argues that the military judge erred by admitting
testimony from Ms. Conrad about the frequency with which
children make false claims of sexual abuse. Appellant argues
that the members might infer from the expert’s testimony about
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children generally an equivalent situation in Appellant’s case,
i.e., that there was a 1 in 200 chance that Appellant was
innocent. As a result, Appellant contends that the military
judge should have provided an immediate corrective instruction
to the members and struck the testimony from evidence, so that
he would not be materially prejudiced.
“Where an appellant has not preserved an objection to
evidence by making a timely objection, that error will be
forfeited in the absence of plain error.” United States v.
Brooks, 64 M.J. 325, 328 (C.A.A.F. 2007) (citing Military Rule
of Evidence (M.R.E.) 103(d)). In this case, defense counsel did
not object to Ms. Conrad’s testimony during the trial. The
plain error standard is met when “(1) there is error, (2) the
error is plain or obvious, and (3) the error results in material
prejudice to a substantial right of the accused.” United States
v. Fletcher, 62 M.J. 175, 179 (C.A.A.F. 2005) (citing United
States v. Rodriguez, 60 M.J. 87, 88-89 (C.A.A.F. 2004)); United
States v. Robbins, 52 M.J. 455, 457 (C.A.A.F. 2000). “Our
standard of review for determining whether there is plain error
is de novo.” Brooks, 64 M.J. at 328 (citing United States v.
Gudmundson, 57 M.J. 493, 495 (C.A.A.F. 2002)).
1. The error in this case
In a trial involving the sexual assault of a child, “‘[a]n
expert may testify as to what symptoms are found among children
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who have suffered sexual abuse and whether the child-witness has
exhibited these symptoms.’” United States v. Birdsall, 47 M.J.
404, 409 (C.A.A.F. 1998) (quoting United States v. Harrison, 31
M.J. 330, 332 (C.M.A. 1990)). “However, an expert may not
testify regarding the credibility or believability of a victim,
or ‘opine as to the guilt or innocence of an accused.’” United
States v. Cacy, 43 M.J. 214, 217 (C.A.A.F. 1995) (quoting United
States v. Suarez, 35 M.J. 374, 376 (C.M.A. 1992)); see also
Brooks, 64 M.J. at 328 & nn. 2-3.
This case is similar to Brooks. There an expert witness
testified that the frequency of false sexual abuse allegations
was approximately five percent. Brooks, 64 M.J. at 327. This
Court concluded that such testimony was “the functional
equivalent of saying that the victim in a given case is truthful
and should be believed” and held that the military judge erred
by admitting it. Id. at 329. The testimony in this case also
involves a statistical statement of how often false accusations
of sexual abuse occur, raising the risk that the members would
infer an equivalent likelihood in Appellant’s case. Such an
inference derived from expert testimony would invade the
province of the court members to determine the credibility of
witnesses. Our conclusion is that it was error to admit the
statistical testimony in Appellant’s case. An expert inference
that there is a 1 in 200 chance the victim is lying undermines
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the duty of the panel members to determine guilt beyond a
reasonable doubt.
2. The error was plain and obvious
There are several reasons supporting our determination that
the error was plain and obvious in this case. First, on direct
review, we apply the clear law at the time of appeal, not the
time of trial. United States v. Harcrow, 66 M.J. 154, 159
(C.A.A.F. 2008) (citing Johnson v. United States, 520 U.S. 461,
468 (1997)). This case was at the CCA when Brooks, a case
holding that expert testimony about the statistical frequency of
children lying about sexual abuse is inadmissible, was decided.
64 M.J. at 328-30. In Brooks, we concluded there was plain
error. Therefore, it follows that an error that was plain and
obvious in Brooks would be plain and obvious in a subsequent
case when there were no intervening changes in the law.
Second, related case law at the time of trial also supports
the conclusion that the error in this case was plain and
obvious. In United States v. Banks, for example, this Court
cautioned against expert statistical testimony that placed an
accused within a definitive profile suggesting guilt. 36 M.J.
150, 161-63 (C.M.A. 1992). Although after Appellant’s trial,
United States v. Traum echoed this concern. We reversed,
finding that the expert’s “statement placed a statistical
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probability on the likelihood that Appellant committed the
offense.” 60 M.J 226, 235-36 (C.A.A.F. 2004).
Third, the error in this case was apparent to the military
judge. This is evident in the military judge’s sound decision
to immediately issue a corrective instruction on the role of
members when the expert initially stated that the children’s
statements were consistent with those of children who had been
abused. He reiterated this instruction, in generic form, before
the members recessed for deliberations. He also asked a
clarifying question directly after the problematic testimony.
Thus, while the military judge’s action in addressing the
testimony was commendable, it also supports the conclusion that
the erroneous nature of the testimony was obvious to him at the
time. The question is whether these remedial steps were
sufficient to cure any potential prejudice arising from the
statistical statement.
3. Prejudice
The last step in plain error analysis is to test whether an
error materially prejudiced Appellant. Prejudice results when
there is “undue influence on a jury’s role in determining the
ultimate facts in the case.” Birdsall, 47 M.J. at 411. We look
at the erroneous testimony in context to determine if the
witness’s opinions amount to prejudicial error. United States
v. Eggen, 51 M.J. 159, 161 (C.A.A.F. 1999). Context includes
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such factors as the immediate instruction, the standard
instruction, the military judge’s question, and the strength of
the government’s case -- to determine whether there was
prejudice.
“Absent evidence to the contrary, court members are
presumed to comply with the Military Judge’s instructions.”
United States v. Thompkins, 58 M.J. 43, 47 (C.A.A.F. 2003).
Here, the military judge gave an instruction at the end of Ms.
Conrad’s direct examination, as well as before deliberations.
The timing of these instructions distinguishes this case from
Brooks, where the military judge only instructed the panel
before the members deliberated, a fact noted and relied upon by
this Court. 64 M.J. at 330. Here, the military judge gave an
instruction on credibility, ensuring that the panel members
would know their role and not accept the percentage testimony as
a proxy for credibility. We also find it hard to fault the
military judge for not repeating the same instruction shortly
after he gave it the first time.1 If the members complied with
the instructions then Ms. Conrad’s testimony should not have
inappropriately bolstered the victims’ credibility.
1
The record of trial has only seven pages of testimony between
the military judge’s first instruction and the expert’s
statistical testimony (during which time there was only a six-
minute recess).
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The military judge also asked Ms. Conrad a clarifying
question, the answer to which indicated that she did not have “a
scientifically accurate way of proving whether [a] child is
telling the truth or not,” thus minimizing the impact of her
testimony. Because of the military judge’s questions, the CCA
found that the testimony was based on the expert’s personal
experience, instead of scientific studies. As a result, the
testimony did not carry the same weight with the panel members
as the testimony offered in Brooks. Thus, while Appellant is
correct that a judicial question is not the same as a corrective
instruction, we are hard-pressed not to conclude that, given the
timing of the first instruction as well as the question and
subsequent answer, the taint from the statistical evidence was
cured.
Appellant argues that the testimony was prejudicial because
it supplemented and buttressed a weak case. As in Brooks, the
Government had “no other direct witnesses, no confession, and no
physical evidence to corroborate the victim’s sometimes
inconsistent testimony.” Brooks, 63 M.J. at 330. However, here
there was corroborating evidence upon which the court members
could rely. Both victims testified and were fully cross-
examined. Non-relative witnesses testified about the fear the
girls had of their father. The victims’ testimony was supported
by the presence of child pornography, illicit instant message
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chat sessions found on Appellant’s computer, and the properly
admitted testimony of the expert witness. In short, the members
had other reasons to believe the victims. Therefore, in this
case, we conclude there was sufficient other evidence and the
members were properly instructed such that we are convinced that
they were able to come to a decision in the case without relying
on any credibility determinations offered by Ms. Conrad.
Appellant has failed to demonstrate prejudice.
II. POST-TRIAL DELAY AND DUE PROCESS
A. Background
Appellant’s trial was completed on April 6, 2001, but the
convening authority’s action did not occur until April 4, 2002,
over 360 days later. Then 448 days elapsed between the date the
record was docketed with the CCA and the date of the first
appointed appellate defense counsel’s initial contact with
Appellant. Appellant had, in succession, four separate
appointed appellate attorneys. He filed various writs and
motions pro se, including complaints about delay in the
appellate process.
Appellant was released from confinement on March 9, 2007,
and was immediately placed on appellate leave status. According
to the appellate record, he then applied for unemployment
insurance from the state of California on May 4, 2007. A few
days later he received notice from the California unemployment
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office that it could not give him benefits because he was still
on appellate leave status and had not received a DD-214.
B. Analysis
“We review de novo claims that an appellant has been denied
the due process right to a speedy post-trial review and appeal.”
United States v. Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006);
United States v. Rodriguez, 60 M.J. 239, 246 (C.A.A.F. 2004).
When considering appellate delay, a court must balance four
factors: “(1) the length of the delay; (2) the reasons for the
delay; (3) the appellant’s assertion of the right to timely
review and appeal; and (4) prejudice.” Moreno, 63 M.J. at 135
(citing Barker v. Wingo, 407 U.S. 514, 530 (1972)). Where an
appellant meets his burden in demonstrating unreasonable
appellate delay, the burden shifts to the government to show
that the due process violation was harmless beyond a reasonable
doubt. United States v. Ashby, 68 M.J. 108, 125 (C.A.A.F.
2009). Even assuming a due process violation occurred in this
case,2 we hold that it was harmless beyond a reasonable doubt
because the record contains no evidence of prejudice warranting
relief.
2
“‘[No] single factor is required for finding a due process
violation and the absence of a given factor will not prevent
such a finding.’” United States v. Bush, 68 M.J. 96 at 103 n.8
(C.A.A.F. 2009) (quoting Moreno, 63 M.J. at 136).
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In examining the Government’s burden to show harmlessness
beyond a reasonable doubt, we review Appellant’s three arguments
regarding prejudice: the delay kept him from receiving
unemployment benefits because he lacked a DD-214, it increased
his anxiety because he had to register as a sex offender, and
“[a] more timely appeal . . . would have enabled him to initiate
legal proceedings to obtain visitation and legal custody of his
now-grown children.” Since Appellant has not prevailed on the
expert testimony issue, he cannot claim that the delay hurt his
ability to retry the case or would have enabled him to seek
custody of his children in a more timely fashion. Moreno, 63
M.J. at 140.
The question of unemployment benefits is a closer call.
Appellant asserts that if his appeal had been adjudicated with
less delay he would no longer be on appellate leave and would
have received unemployment benefits. Appellant argues this is
analogous to “recognized interference with post-military
employment opportunities as a form of prejudice that warrants
relief for unreasonable post-trial delay.” United States v.
Jones, 61 M.J. 80, 84 (C.A.A.F. 2005) (citing United States v.
Sutton, 15 M.J. 235 (C.M.A. 1983)). The appellate question is
not whether such a scenario could amount to prejudice; it could.
The question is whether the record reflects that such prejudice
existed in this case.
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We conclude that the record does not demonstrate that it
was Appellant’s leave status that kept him from receiving the
benefits and that he would not have been denied on some other
grounds.3 See Bush, 68 M.J. at 103 n.8. In United States v.
Schweitzer, 68 M.J. 133, 138-39 (C.A.A.F. 2009), and Ashby, 68
M.J. at 125, this Court denied the appellants’ assertions that
post-trial delay was prejudicial because it caused difficulty in
finding adequate employment. In Ashby, as in Jones, the Court
was provided with affidavits from would-be employers supporting
the appellants’ claims. 68 M.J. at 125 n.11 (Ashby); 61 M.J. at
81 (Jones). The record in this case does not contain an
equivalent affidavit, nor does it contain any other
authoritative evidence that a person in Appellant’s
circumstances would have been eligible for unemployment benefits
and received them once his appeal was final. Having carefully
examined the entire record and finding no convincing evidence of
prejudice, we conclude that, under the totality of the
circumstances, the post-trial delay was harmless beyond a
reasonable doubt.
3
Appellant filed two motions with this Court on April 16, 2010,
that were denied. One was to take judicial notice of a sixteen-
page printout from the California Employment Development
Department addressing employment benefits and misconduct
generally. The other motion was to attach a California
Unemployment Insurance Program fact sheet and the Appellant’s
most recent Social Security statement. Neither directly
addressed Appellant’s circumstances.
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CONCLUSION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
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