United States v. Foster ( 2007 )

UNITED STATES, Appellee
v.
Richard C. FOSTER, Personnelman First Class
U.S. Navy, Appellant
No. 06-0238
Crim. App. No. 200301262
United States Court of Appeals for the Armed Forces
Argued October 25, 2006
Decided January 30, 2007
ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, J., joined.
STUCKY and RYAN, JJ., did not participate.
Counsel
For Appellant: William E. Cassara, Esq. (argued); Captain
Jeffrey S. Stephens, USMC, and Captain Peter Griesch, USMC (on
brief).
For Appellee: Major Kevin C. Harris, USMC (argued); Commander
Paul LeBlanc, JAGC, USN (on brief); Colonel Ralph F. Miller,
USMC.
Military Judge: Nels H. Kelstrom
This opinion is subject to revision before final publication.
United States v. Foster, No. 06-0238/NA
Judge ERDMANN delivered the opinion of the court.
Personnelman First Class Richard C. Foster entered a plea
of not guilty to two specifications of committing indecent acts
with a child on divers occasions and one specification of
communicating a threat, all in violation of Article 134, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2000). At the
close of the Government’s case, the military judge dismissed one
of the indecent act specifications on the grounds that the
evidence was factually insufficient. The panel convicted Foster
of the remaining two specifications and sentenced him to a
dishonorable discharge, forfeiture of all pay and allowances,
reduction to the lowest enlisted grade and confinement for five
years. The convening authority approved the sentence and the
United States Navy-Marine Corps Court of Criminal Appeals
affirmed the findings and the sentence. United States v.
Foster, No. NMCCA 200301262, 2005 CCA LEXIS 322, 2005 WL 2704961(N-M. Ct. Crim. App. Oct. 18, 2005) (unpublished).
A military judge’s impartiality is crucial to the conduct
of a legal and fair court-martial. United States v.
Quintanilla, 56 M.J. 37, 43 (C.A.A.F. 2001). The military judge
may participate actively in proceedings to assure that court-
martial members receive the information that they need to
determine whether the accused is proven guilty, however, the
military judge must take care not to become an advocate for
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either party. United States v. Ramos, 42 M.J. 392, 396
(C.A.A.F. 1995). We granted review of this case to determine
whether the military judge remained impartial in his conduct of
this trial.1 While we do not condone some of the actions taken
by the military judge, in the context of the entire trial, the
legality, fairness, and impartiality of the court-martial were
not put in doubt.
Background
The allegations leading to Foster’s charges involved
several instances of inappropriate sexual contact with his six-
year-old stepdaughter and his threats to her if she told her
mother about the incidents. The Government’s case relied in
large part on the stepdaughter’s testimony and Foster’s defense
was that the child’s story was not true. A key component of the
defense strategy was the testimony of Dr. Mary L. Huffman, a
developmental research psychologist with expertise in evaluating
children’s testimony.
Foster’s claim that the military judge was not impartial
centers on the military judge’s treatment of Dr. Huffman.
1
We granted review of the following issue:
WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL
APPEALS ERRED TO THE SUBSTANTIAL PREJUDICE OF
APPELLANT WHEN IT RULED THAT THE MILITARY JUDGE DID
NOT BECOME A PARTISAN ADVOCATE FOR THE GOVERNMENT, AND
THAT THE MILITARY JUDGE’S TREATMENT OF THE DEFENSE
EXPERT DID NOT DENY APPELLANT’S RIGHT TO PRESENT A
DEFENSE.
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Foster argues that the military judge harbored an inflexible and
biased attitude toward Dr. Huffman and displayed contempt for
her credentials and testimony and disdain for her area of
expertise. He argues that the military judge improperly limited
Dr. Huffman’s testimony, engaged in hostile and combative
questioning, and discredited her testimony by inaccurately
summarizing it in a jury instruction that was not sufficiently
detailed or accurate. Foster contends that the military judge,
through his treatment of this expert witness, became a partisan
advocate for the Government and denied him his right to present
a defense. The Government responds that the military judge did
not depart from his neutral role but set appropriate parameters
on the testimony of the expert, asked questions to uncover
relevant facts, and tailored the expert witness instructions to
give accurate and impartial guidance to the members.
Discussion
There is a strong presumption that a military judge is
impartial in the conduct of judicial proceedings. Quintanilla,
56 M.J. at 44. “When a military judge’s impartiality is
challenged on appeal, the test is whether, taken as a whole in
the context of [the] trial, [the] court-martial’s legality,
fairness, and impartiality were put into doubt by the military
judge’s actions.” Id. at 78 (citation and quotation marks
omitted); see also United States v. Acosta, 49 M.J. 14, 18
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United States v. Foster, No. 06-0238/NA
(C.A.A.F. 1998). We apply this test from the viewpoint of the
reasonable person observing the proceedings. Ramos, 42 M.J. at
396. Failure to object at trial to alleged partisan action on
the part of a military judge may present an inference that the
defense believed that the military judge remained impartial.
See United States v. Burton, 52 M.J. 223, 226 (C.A.A.F. 2000)
(citing United States v. Hill, 45 M.J. 245, 249 (C.A.A.F.
1996)).
We will address in turn each of the four alleged instances
of partisanship that Foster has raised: (1) the military
judge’s improper limitation on Dr. Huffman’s testimony; (2) the
military judge’s hostile examination of Dr. Huffman in front of
the court-martial members; (3) the instruction to members which
failed to identify Dr. Huffman as an expert and inaccurately
summarized her testimony; and (4) inappropriate comments made by
the military judge outside the presence of the members that
demonstrated his bias against Dr. Huffman.
1. Limitation of Dr. Huffman’s testimony
The defense’s pretrial proffer of Dr. Huffman’s testimony
reflects that she was being called to “testify about the effects
of multiple interviews on a child, leading questions, and
improper interview techniques. She will testify these factors
can taint a child’s testimony and make the child actually
believe something is true that is not.”
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A key aspect of Dr. Huffman’s work involves the concept of
source misattribution error where a child over time has
difficulty discerning whether his or her own memory or another’s
repeated questioning is the real source of the information. In
Dr. Huffman’s view, an analysis of the first interview with the
child is crucial in determining whether source misattribution
error occurred. The first interview in this case was
unavailable for review because the audio and videotape equipment
failed. Due to the absence of this record, Dr. Huffman was
unable to perform the source misattribution error analysis. As
the defense was questioning Dr. Huffman about the interview
procedures that were utilized in this case, the Government
objected on the grounds that it appeared she was about to opine
on the victim’s credibility.
The military judge convened an Article 39(a), UCMJ, 10
U.S.C. § 839(a) (2000), session outside the presence of the
court-martial members to discuss the objection and Dr. Huffman’s
testimony. The military judge instructed Dr. Huffman that she
could not reveal whether she thought the victim was telling the
truth. Dr. Huffman was expressly prohibited from stating that
“no one really could get on the stand and say that [the victim]
is or isn’t telling the truth.” The rest of Dr. Huffman’s
examination, as well as the cross-examination, redirect
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United States v. Foster, No. 06-0238/NA
examination and re-cross examination proceeded without further
objection or limitation.
Foster, relying on our decision in United States v. Cacy,
43 M.J. 214 (C.A.A.F. 1995), asserts that this testimonial
limitation deprived him of a critical component of his defense
and urges us to see this restriction as evidence of the military
judge’s bias against Dr. Huffman. In Cacy, we recognized that
an expert may testify about symptoms that are generally found
among children who have suffered sexual abuse and whether the
child-witness has exhibited these symptoms. Id. at 217. An
expert may also testify about patterns of consistency generally
found in the stories of victims as compared to patterns in the
victim’s story. Id. Although Cacy allows this type of expert
testimony in appropriate circumstances, this court has
recognized that there is a fine line between admissible
testimony in this area and testimony about a victim’s
credibility or its functional equivalent, which is not
admissible. See id. at 217-18; United States v. Birdsall, 47
M.J. 404, 410 (C.A.A.F. 1998); United States v. Arruza, 26 M.J.
234, 237 (C.M.A. 1988); see also United States v. Brooks __ M.J.
___ (11)(C.A.A.F. 2007).
In this case, Dr. Huffman had no basis upon which she could
offer a Cacy-like comparison of typical behavior patterns.
Repeatedly during her testimony, she made the point that unless
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a recording of the first interview was available for review, she
would not have the means to assess whether the testimony of the
victim was affected by multiple interviews. Since there was no
record of the initial interview, Dr. Huffman lacked the case-
specific information that she needed to make Cacy-type
comparisons. Indeed, she stated expressly that “I don’t think
anyone can say that there was [source misattribution error] and
I don’t think anyone can say that there was not.” Cacy is
therefore inapplicable to this case.
The military judge ruled that while credibility assessments
are a function of the jury, Dr. Huffman could help the members
decide what factors they should use to carry out that function.
What she could not do was reveal her personal assessment of the
child’s credibility. The limitation on her testimony was
appropriate and the ruling of the military judge was not
erroneous. As we have found that the military judge did not err
in his testimonial limitation, there exists no basis upon which
a reasonable observer could conclude that the ruling casts doubt
upon the court-martial’s legality, fairness, and impartiality.
2. The military judge’s examination of Dr. Huffman
Following the examination of Dr. Huffman by the counsel for
both parties, a member submitted several questions concerning
Dr. Huffman’s review of the case and the concept of source
misattribution error. Based on these questions, the military
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United States v. Foster, No. 06-0238/NA
judge conducted an examination of Dr. Huffman. The relevant
portion of this exchange is as follows:
Q: Have you ever interviewed [the victim]?
A: I have not.
Q: All right. I’m sure it wasn’t your intent to gloss
over this, but it was kind of glossed over early on in your
testimony. I think they were just kind of rushing through
to get to the crux of your testimony, but I understood you
to say that in preparation for your testimony here today,
you reviewed some paperwork but you were primarily
interested in the number of times the children were
interviewed, something along those lines. Tell me if you
will what it is that you reviewed about this case before
coming in to testify?
A. What I typically review would be a videotape ----
Q. No, what have you reviewed in this case?
A. In this case. I was not -– there was no documentation
given to me from the forensic interviewer -– interview that
was conducted with [the victim] or [the victim’s brother].
That information was lost so, therefore, I was sent police
reports and different things like that, but I -- honestly,
I did not even look at that because I’m mostly interested
in the forensic interview and there was no documentation on
that. So what I asked for was a list of documented
interviews and who conducted them. So that’s mostly what I
reviewed.
Q: All right. So you had a list of the people involved in
conducting interviews?
A. Right.
Q. Okay. But you did not review the police report or
anything else that had been submitted to you?
A. That is correct. I did not review those.
Q. So you, therefore, do not know what was contained
within the police report?
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United States v. Foster, No. 06-0238/NA
A. Right. Because to me, the time delay between when that
interview was conducted and what was actually contained -–
what was contained in the report, there’s such a delay that
even the interviewer could reconstruct how they asked
questions, what was asked, what was said, but that wasn’t
of value to me.
Q. It wasn’t, okay. On cross-examination you did indicate
that if a child tells the same story over time,
notwithstanding a number of interviews, intervening
interviews, that that is not a suggestive interview. None
of those interviews would be suggestive, in your opinion.
A. That is correct. But the caveat needs to be said that
in that first interview, leading -– which we don’t have
documentation on, leading questions, misleading questions,
that the child could get clear messages as far as details
and what needs to be said, and that that could be false
information that’s then maintained from interview to
interview. And because I didn’t have that first interview,
again, I can’t say, “Here are the original things and
here’s how they were carried through.”
Q. Sure. Would it be important to you, for example, to
talk to the person who conducted that first interview and
determine the types of questions [which] were asked?
A. No, because they are reconstructing how an interview
should be asked and what should -– and I believe most
interviewers would know enough [to know that] you shouldn’t
ask leading questions, you should ask open-ended questions,
but ----
Q. So you ----
A. ---- what actually happened is, we don’t know.
Q. So, in other words, you wouldn’t believe the person if
that person told you that, “Gee, I asked non-leading
questions.”
A. As a memory expert, years down the road I don’t know
that they are going to reconstruct correctly because
they’ve interviewed other people since then, and they don’t
have documentation from how that interview ----
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United States v. Foster, No. 06-0238/NA
Q. So you just chose, instead, just to ignore the whole
thing, not even inquire as to how that interview is
conducted.
A. I would look at it, but I would know that there are
going to be memory errors incorporated because it wasn’t
conducted -– correctly done.
Q. And that’s why you didn’t read the police report,
that’s why you didn’t contact the person or persons who
conducted these interviews. Because you assumed there
would be errors in how they would report to you how they
conducted the interview?
A. Legally and ethically, I never contact the people that
conduct the interview.
Q. So you got a list of names of people who conducted
interviews with [the victim], you didn’t speak with those
people; all you have is names?
A. Out of less –---
Q. So you know the number of interviews, and a list of the
people who conducted the interviews, and that’s it? With
regard to the fact of the -– this case?
A. That is correct, and then personal communication with
defense counsel as far as other facts of the case and what
was contained in those other things.
Q. So you don’t know, then, whether there was any source
misattribution error at all in this case, do you?
A. I don’t think anyone can say that there was and I don’t
think anyone can say that there was not.
Q. Okay. Understand. But you have no basis at all to
state that that error that you identified is, in fact, an
issue in this case.
A. If a forensic interviewer is not careful enough to
record the testimony ----
Q. I understand that, but you don’t know that. You don’t
know that’s so, in this case, you don’t know if source
attribution error is, in fact, an issue in this case?
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A. That we never could know whether it is or isn’t.
Defense counsel did not object during the military judge’s
examination of Dr. Huffman. However, outside the presence of
the members he argued that the tone of the questioning might
have led the members to think negatively about Dr. Huffman’s
preparation for trial or to believe that the military judge did
not think highly of Dr. Huffman or feel that her opinion was
valid. Defense counsel described the questioning as harsh and
combative and broached the possibility of submitting a proposed
instruction that specifically addressed the exchange.
Although the military judge denied that his questioning was
harsh and combative, he referenced a generic instruction that he
intended to give requiring the members to disregard any of his
comments or questions that they thought expressed an opinion
about the credibility of a witness or about any issue in the
case. The matter of a unique instruction on the nature of the
questioning was not raised again and the generic instruction was
given with the final instructions.
On appeal, Foster describes the military judge’s
questioning of Dr. Huffman as “hostile,” “combative” and
“scathing” and contends that the military judge improperly took
on the tone and tenor of a prosecutor. The Government argues
that the military judge was acting to ensure that the members
had the information they required to assess the nature and value
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United States v. Foster, No. 06-0238/NA
of Dr. Huffman’s testimony. Noting that the defense did not
object to the questioning at trial, the Government also argues
that the military judge diminished the potential for bias
through two curative instructions: one of which addressed the
proper use of expert testimony and the other which directed the
members to ignore any statements reflecting any personal opinion
or bias by the military judge.
A military judge “can and sometimes must ask questions in
order to clear up uncertainties in the evidence or to develop
the facts further.” Ramos, 42 M.J. at 396. Because “jurors are
ever watchful of the words that fall from him,” however, “a
military judge must be circumspect in what he says to the
parties and in how he examines witnesses.” Id. (citation and
quotation marks omitted). In this regard, the tenor used by the
military judge in questioning Dr. Huffman generates concern.
Military judges should take care to elicit information in a
neutral manner and to avoid the kind of approach reflected in
this record that so closely resembles the tenor of cross-
examination. See United States v. Clower, 23 C.M.A. 15, 18, 48
C.M.R. 307, 310 (1974). Nevertheless, judging from the
standpoint of a reasonable observer, we have no difficulty
concluding that “taken as a whole in the context of this trial,”
this limited exchange cast no doubt upon the court-martial’s
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legality, fairness, and impartiality. Ramos, 42 M.J. at 396
(citation and quotation marks omitted).
3. The expert witness instruction
Foster argues that the military judge’s expert witness
instruction failed to identify Dr. Huffman as an “expert” and
also failed to accurately summarize her testimony. From the
trial’s outset, the military judge informed both counsel that he
would not refer to any of the expert witnesses as “experts.” He
explained that he “[did not] like to use the word ‘expert’”
because he thought “that puts kind of an imprimatur on the
weight to be given to their testimony.” There was no objection.
The military judge later gave instructions to the members
that described the testimony of the defense’s two experts, Dr.
Huffman, a developmental research psychologist, and Lieutenant
Commander Steven A. Talmadge Jr., a forensic psychologist, as
“educational testimony.” The testimony of the Government’s
expert witness, Dr. Elizabeth Heidt Kozisek, a clinical
psychologist, was described as “specialized testimony.” As to
Dr. Huffman, the instruction, in relevant part, read as follows:
You have also heard the testimony of Dr. Mary Huffman
and Lieutenant Commander Steven Talmadge who were
allowed to testify in this case because their
knowledge, skill, training, education and experience
in their respective fields may assist you in
understanding the evidence or in determining a fact in
issue; however, you are not required to accept their
testimony or give it more weight than the testimony of
any other witness. You should, however, consider
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United States v. Foster, No. 06-0238/NA
their qualifications in determining the weight you
will accord their testimony.
. . . .
You will recall that Dr. Huffman did not testify
about the nature of the pretrial interviews of [the
victim] and [the victim’s brother] that were conducted
by various individuals in this case, nor about the
types of questions that were used in conducting those
interviews. Dr. Huffman did testify that because the
videotape recording of a forensic interview of [the
victim] by Special Agent Dillard had a blank audio
track she was unable to perform an assessment of the
types of questions asked during that interview.
However, she did provide general information that
suggestibility can cause memory errors, that every
child is different in this regard with some children
being more susceptible to suggestion than others, that
age is a factor regarding the degree to which children
are susceptible to suggestion, and that the type of
questions employed during the interview process is
significant in achieving a reliable result.
Dr. Huffman’s testimony was permitted solely for
its educational value to provide general information
about children’s memory in the courtroom due to
repeated interviews and the effects of suggestion on
memory to assist you in evaluating the evidence and
determining the facts.
. . . .
Using the general educational information
supplied by Lieutenant Commander Talmadge and Dr.
Huffman, the specific information regarding the
clinical evaluations of [the victim and her brother]
supplied by Dr. Heidt-Kozisek, your own observations
in court, your own experience in dealing with people,
and all other factors I mentioned in determining
witness credibility, it is your function to determine
the credibility of the witnesses, the believability of
their testimony and, ultimately, the facts of this
case.
Before the military judge gave these instructions to the
members, both counsel had the opportunity to review the
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United States v. Foster, No. 06-0238/NA
instructions. Defense counsel did not object and in fact agreed
that the military judge had summarized the specialized and
educational testimony “fairly and accurately.” Government
counsel objected to the instructions on several grounds but
those objections were overruled by the military judge.2
Government counsel then requested that the military judge
instruct the members that they were not bound by his summaries.
The military judge agreed and subsequently amended the
Government’s proposed version of that instruction as follows:
Now, you are not bound by my summary above of the
testimony provided by Dr. Heidt-Kozisek, Lieutenant
Commander Talmadge and Dr. Huffman. That summary is
provided merely to assist you in understanding their
testimony. It is not evidence, and it is not intended
to be a comprehensive summary of every question asked
of these witnesses and their answers to those
questions. I again instruct you that you must base
the determination of the issues in this case on the
evidence as you remember it.
Foster argues on appeal that the military judge plainly
erred by not giving a more detailed and accurate instruction.
While Foster argues that the military judge committed plain
error in regard to the expert witness instruction, he does not
rely on that alleged error as a basis for reversal in and of
2
The Government argued: the summary of the Government’s expert
witness’s testimony should not include a concession that she
made in direct examination; Dr. Huffman’s summary should be more
specific so that it reflected several particular points that
assisted the Government’s case; and finally, the military judge
should not use the summaries at all but rather employ the
standard expert testimony instruction.
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itself, but rather as further evidence of the military judge’s
partisanship. Under these circumstances we will evaluate the
instruction under the test established in Quintanilla for those
instances where a military judge’s impartiality is challenged.3
See also Acosta, 49 M.J. at 18.
Foster does not articulate exactly what the instruction
should have said, but his complaint focuses on the military
judge’s characterization of Dr. Huffman’s testimony as “general
information,” which Foster considers inferior to the military
judge’s characterization of the testimony of the Government
witness as “specialized.” Foster asserts that together with the
military judge’s examination of Dr. Huffman, the instruction
essentially told the members that Dr. Huffman’s testimony was
worthless. The Government responds on appeal that the military
judge’s instructions were accurate.
Within certain bounds, military judges can comment upon and
summarize evidence admitted in the form of expert witness
testimony. Rule for Courts-Martial (R.C.M.) 920(e)(7) states
that instructions on findings shall include “[s]uch other
explanations, descriptions, or directions as may be necessary
3
“When a military judge’s impartiality is challenged on appeal,
the test is whether, taken as a whole in the context of [the]
trial, [the] court-martial’s legality, fairness, and
impartiality were put into doubt by the military judge’s
actions.” United States v. Quintanilla, 56 M.J. 37, 78
(C.A.A.F. 2001).
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and which are properly requested by a party or which the
military judge determines, sua sponte, should be given.” In
moving beyond benchbook instructions, however, military judges
must use caution not to do so in a manner that either places
undue emphasis on or minimizes the importance of expert
testimony.4 Cf. United States v. Washington, 63 M.J. 418, 425
(C.A.A.F. 2006) (“A particular formula is not required in
administering an oath or affirmation, although adherence to the
benchbook formula will minimize dispute.”).
Expert testimony is appropriate where “scientific,
technical, or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a fact in
issue . . . .” Military Rules of Evidence (M.R.E.) 702. When
an individual testifies under M.R.E. 702, it is precisely
because the military judge has found that individual to hold the
requisite qualifications of an expert. The members are entitled
to be informed of that designation and a military judge must not
impose his or her own views to either diminish or enhance that
important role. We find that the military judge erred in
failing to use the term “expert” and by substituting that term
with the terms “specialized” and “educational.”
4
See Dep’t of the Army, Pamphlet 27-9, Legal Services, Military
Judges’ Benchbook ch. 7, para. 7-9-1 (2002).
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Although we find that the military judge erred in this regard,
we do not believe that the instructions raise any reasonable
doubt about the military judge’s impartiality. See United
States v. Cooper, 51 M.J. 247, 252 (C.A.A.F. 1999). While the
military judge’s instructions on expert testimony reflected his
personal views as to the value of that testimony, his refusal to
use the term “expert” applied equally to both parties’ witnesses
and we are not persuaded that the term “educational testimony”
is critical of Dr. Huffman or prejudicial to Foster’s defense.
We conclude that Foster has failed to demonstrate that these
unchallenged expert witness instructions affected the trial’s
legality, fairness or impartiality.
4. Comments made by the military judge outside the
members’ presence
Foster argues that comments made by the military judge
during an Article 39(a), UCMJ, session further demonstrate his
bias against Dr. Huffman. During this hearing, which was held
outside the hearing of the members, the military judge made
several intemperate statements concerning Dr. Huffman’s
experience, ego and the need to control her testimony. While
the military judge’s language was inappropriate we do not
believe that this personal expression of irritation impacted
Foster’s right to a fair trial in light of the fact that the
comments were not heard by the court-martial members. See
United States v. Reynolds, 24 M.J. 261, 264 (C.M.A. 1987)
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United States v. Foster, No. 06-0238/NA
(upholding harsh comments used to exercise control over
proceedings when given outside the presence of the court
members).
Conclusion
Foster has failed to present sufficient evidence to
overcome the strong presumption of a military judge’s
impartiality. Although the military judge’s conduct at times
departed from judicial propriety, a reasonable observer would
conclude that in the context of the whole trial, his actions did
not compromise the court-martial’s legality, fairness, or
impartiality.
Decision
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
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