United States v. Hall

UNITED STATES, Appellee
v.
Anthony T. HALL, Lance Corporal
U. S. Marine Corps, Appellant
No. 07-0384
Crim. App. No. 200600805
United States Court of Appeals for the Armed Forces
Argued January 8, 2008
Decided February 25, 2008
BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, STUCKY, and RYAN, JJ., joined.
Counsel
For Appellant: Captain S. Babu Kaza, USMC (argued).
For Appellee: Lieutenant Timothy H. Delgado, JAGC, USN
(argued); Colonel Louis J. Puleo, USMC, (on brief); Commander
Paul C. LeBlanc, JAGC, USN, and Lieutenant Tyquili R. Booker,
JAGC, USN.
Military Judge: B. W. MacKenzie
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Hall, No. 07-0384/MC
Judge BAKER delivered the opinion of the Court.
Contrary to his pleas, Appellant was convicted by general
court-martial with members of making a false official statement
and maiming, in violation of Articles 107 and 124, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. §§ 907, 924 (2000). He
was sentenced to confinement for forty-two months and a bad-
conduct discharge. This sentence was approved by the convening
authority as adjudged. The United States Navy-Marine Corps
Court of Criminal Appeals affirmed the approved findings and
sentence. United States v. Hall, No. NMCCA 200600805 (N-M.
Crim. Ct. App. Mar. 20, 2007).
We granted review of the following issues:
I. WHETHER THE LOWER COURT ERRED IN STATING THAT APPELLANT HAD
RECEIVED A DISHONORABLE DISCHARGE AT TRIAL, WHEN THE MEMBERS
SENTENCED HIM TO A BAD-CONDUCT DISCHARGE, AND THE CONVENING
AUTHORITY APPROVED ONLY A BAD-CONDUCT DISCHARGE.1
II. WHETHER THE LOWER COURT ERRED IN FINDING THAT THE MILITARY
JUDGE’S DECISION TO ALLOW, OVER DEFENSE OBJECTION, A NON[-]
EXPERT NCIS AGENT TO PROVIDE EXPERT TESTIMONY TO THE MEMBERS
WAS HARMLESS, WHERE THIS WAS IN VIOLATION OF MILITARY RULE
OF EVIDENCE 701(C), AND THE GOVERNMENT HAS CONCEDED THAT
THIS TESTIMONY WAS BOTH MATERIAL TO ITS CASE AND WAS OF HIGH
QUALITY.
Recognizing the Government’s concession of error regarding Issue
II, we conclude that the lower court did not err in finding this
error harmless and we affirm.
1
We did not order briefs on this issue and we resolve it in the
decisional paragraph of this opinion.
2
United States v. Hall, No. 07-0384/MC
BACKGROUND
While on convalescent leave for a rotator cuff injury,
Appellant cared for AC, the nine-month-old son of a civilian
living at Pearl Harbor whose wife was deployed. On April 9,
2005, the child suffered second-degree burns on his left foot,
buttocks, and thigh. According to Appellant, the infant
suffered the burns when he attempted to bathe the child by
placing him in two to three inches of hot water. However, as
recounted below, inconsistencies in Appellant’s account as well
as the nature of the child’s burns raised suspicions. Appellant
was subsequently charged with maiming.
At trial the Government presented the following evidence.
First, the victim’s father, testified about Appellant’s failure
to take his son to the hospital at the first discovery of the
burns. According to AC’s father, when asked, Appellant’s
reasoning was that he “didn’t have his ID card.” The child did
not receive medical attention until nearly four hours after the
infliction of injuries. AC’s father also testified to the
severity of the burns, the scarring that remains, and the
ability and inclination of his son when responding to the
stimulus of hot bath water. Second, Special Agent (SA) Mark
Victor Politi, Naval Criminal Investigation Service (NCIS),
testified that during questioning, Appellant told him that he
had intended to bathe the child and that he had felt the water
3
United States v. Hall, No. 07-0384/MC
as he put a stopper in the sink. Third, the Government called
SA Allexis Rizas. SA Rizas has a master’s degree in forensic
science with experience and training in child burn cases. Over
defense counsel’s objection, SA Rizas testified that she
believed the burns on the child were a “textbook case of an
immersion burn with clear lines of demarcation and a lack of
splash marks . . . indicative of non-accidental trauma.” The
military judge admitted this testimony as layperson opinion
under Military Rule of Evidence (M.R.E.) 701.
Finally, the Government called Dr. Victoria Schneider who
also testified to the absence of splash marks as a sign of
nonaccidental burns. Dr. Schneider, however, further stated
that the lack of splash marks indicated that the child had been
held still in the hot water.
DISCUSSION
In light of the Government’s concession that the military
judge erred in admitting SA Rizas’s testimony under M.R.E. 701,
we will move directly to the assigned issue: was the error
harmless? “Whether an error, constitutional or otherwise, was
harmless, is a question of law that we review de novo. . . .
For nonconstitutional errors, the Government must demonstrate
that the error did not have a substantial influence on the
findings.” United States v. McCollum, 58 M.J. 323, 342
(C.A.A.F. 2003) (citation omitted); United States v. Walker, 57
4
United States v. Hall, No. 07-0384/MC
M.J. 174, 178 (C.A.A.F. 2002) (citing Kotteakos v. United
States, 328 U.S. 750, 765 (1946)).
This Court evaluates claims of prejudice from an
evidentiary ruling by weighing four factors: “(1) the strength
of the Government’s case, (2) the strength of the defense case,
(3) the materiality of the evidence in question, and (4) the
quality of the evidence in question. We apply the same four-
pronged test for erroneous admission of government evidence as
for erroneous exclusion of defense evidence.” United States v.
Kerr, 51 M.J. 401, 405 (C.A.A.F. 1999) (citations omitted).
The Government concedes that the testimony of SA Rizas was
material. With respect to the other three Kerr factors, the
Government argues that its case is strong notwithstanding SA
Rizas’s testimony, Appellant’s statement of events is
incredible, and in light of Dr. Schneider’s testimony, SA
Rizas’s testimony was of little qualitative value.
Not surprisingly, Appellant takes a different view with
respect to the relative strength of the Government’s case and
the quality of his case at trial. However, the focus of
Appellant’s argument is on the qualitative nature of SA Rizas’s
testimony. Specifically, Appellant argues, SA Rizas’s testimony
was prejudicial because she failed to qualify her conclusion and
therefore foreclosed the possibility that Appellant held the
child in the water momentarily before realizing the hot
5
United States v. Hall, No. 07-0384/MC
temperature and removing him. Essentially, Appellant argues
that SA Rizas’s testimony suggested malice on his part while Dr.
Schneider’s testimony does not.
In applying the Kerr factors we conclude that the lower
court did not err in holding that the admission of SA Rizas’s
testimony was harmless error. First, the Government’s case was
strong, if not overwhelming. The father of the burned child
testified to AC’s developed strength and awareness, making it
doubtful that the child remained still while being placed into
water hot enough to burn him in a matter of seconds:
A: My son -– he is very, very aware. In fact,
if my son was getting placed in cold water, he
would probably try to squirm and try to get up
and remove himself from it. . . .
DC: Did you ever observe your child react to . .
. to water either too cold or too hot?
A: Yes, I did.
Q: All right. Explain what happened in those
instances.
A: What he did was he was trying to -– he’d
groan, and he would try to push himself up and
get out of the water.
Q: Would he ever just sit still?
A: No, he would not, no.
Q: Would he just freeze up and sit there?
A: No.
Q: Any possibility?
6
United States v. Hall, No. 07-0384/MC
A: No, none.
Dr. Schneider testified that the victim’s injuries,
“because of their pattern, because of the uniformity of the
depth of the burn, because of the clear demarcation, because of
the -– what they call sink marks, those straight lines across –-
that you saw across the waist demarking the unburned skin from
the burned skin –- that’s all consistent with non-accidental
etiology with someone holding him in a hot liquid.” When Dr.
Schneider qualified what she meant by “non-accidental,” she did
not exclude the possibility of malice as suggested by Appellant.
Her testimony actually suggested intentional behavior as the
cause of the injuries:
A: Well, it was significant that he was able to
pull himself up, and he readily does pull himself
up. So you would expect if he were placed
accidentally into hot liquid that there would be
a lot of movement. He would not stay still in
that water on his own accord.
Q: Can you say within medical reasonable
certainty that –- you would have seen -– had the
child not been held still, you would have seen a
wavy pattern on his body?
A: You would have seen splash marks if the water
was very hot. You would have seen other evidence
of movement of the child on the skin.
Dr. Schneider’s testimony was also supported by photographs
of the victim showing a uniform pattern of blistering.
In contrast, the defense case was weak, even implausible.
The alternative theories advanced by the defense were that
7
United States v. Hall, No. 07-0384/MC
Appellant was either unable to lift the child out of the water
before the child was burned or that he left the room briefly
during which time the child was burned. Yet, the father
testified to the fact that he often observed Appellant carrying
his son without difficulty or pain. Further, Appellant admitted
to SA Politi that he was able to take the child out of the water
immediately in two or three past instances when the child
reacted to the temperature of the water.
The defense also advanced the theory that AC was only in
the water for seconds. However, Dr. Schneider’s testimony
regarding the lack of splash marks cast serious doubt on this
version of events. The doctor also testified that the severity
of the burns on the child could have only been caused by either
a short amount of time in scalding hot water or a longer amount
of time in lesser temperatures. Specifically, the burns could
have been caused by ten minutes in temperatures as low as 120
degrees or by two seconds in 150-degree water. If Appellant had
tested the water when he put the plug in the drain, as he told
SA Politi, he likely would have discerned the heat of water that
could have inflicted severe burns on a child in only seconds.
Appellant’s position fails to account for the severe burns
inflicted on the child victim.
With respect to the third Kerr factor, the Government has
conceded the materiality of SA Rizas’s testimony, and correctly
8
United States v. Hall, No. 07-0384/MC
so. SA Rizas’s testimony directly expressed an opinion
regarding the cause of the victim’s injuries as well as
Appellant’s criminal culpability in causing the injuries.
Standing alone, such testimony might well have been
determinative.
But the testimony did not stand alone. Turning to the
fourth Kerr factor, we are persuaded that the testimony of SA
Rizas would not have substantially influenced the verdict. We
reach this conclusion in light of the other evidence presented
by the Government, the nature of Appellant’s defense, and in
particular, the duplicative quality of SA Rizas’s testimony when
compared to that of the actual expert in the case, Dr.
Schneider. Among other things, SA Rizas’s testimony did not
suggest the cause of the injuries, only that they were not
accidental. Whereas, Dr. Schneider’s testimony did account for
causation. In addition to stating a firm belief that the burns
were “non-accidental,” Dr. Schneider attributed additional
significance to the absence of wave or splash marks, testifying
essentially that the child was held in hot water. Furthermore,
both SA Rizas and Dr. Schneider testified to their professional
training and qualifications to assess the circumstances that
caused AC’s burns. In light of the qualitative difference in
professional background and expertise, as well as the overlap in
testimony between Dr. Schneider and SA Rizas, we are persuaded
9
United States v. Hall, No. 07-0384/MC
that SA Rizas’s testimony regarding nonaccidental burn
indications was not qualitatively significant in the context of
this case. As a result, the Government has met its burden of
demonstrating that SA Rizas’s testimony did not have a
substantial influence on the findings.
DECISION
Based on the above analysis, we conclude that the erroneous
admission of SA Rizas’s opinion testimony was harmless.
Regarding Issue I, the lower court’s opinion erroneously
indicates that the adjudged and approved sentence included a
dishonorable discharge. Therefore, the decision of the United
States Navy-Marine Corps Court of Criminal Appeals as to the
findings is affirmed. As for the lower court’s decision on the
sentence, we affirm only so much of the sentence extending to
what the convening authority approved, confinement for forty-two
months and a bad-conduct discharge.
10