United States v. Brown

UNITED STATES, Appellee

v.

Donald J. BROWN, Master-at-Arms First Class
U.S. Navy, Appellant

No. 13-0244

Crim. App. No. 201100516

United States Court of Appeals for the Armed Forces

Argued May 14, 2013

Decided July 15, 2013

BAKER, C.J., delivered the opinion of the Court, in which
ERDMANN, STUCKY, and RYAN, JJ., and EFFRON, S.J., joined.

Counsel

For Appellant: Lieutenant David C. Dziengowski, JAGC, USN
(argued).

For Appellee: Major David N. Roberts, USMC (argued); Colonel
Stephen C. Newman, USMC, Major Paul M. Ervasti, USMC, Captain
Samuel C. Moore, USMC, and Brian K. Keller, Esq. (on brief).

Military Judge: Kevin R. O’Neill

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Brown, No. 13-0244/NA

Chief Judge BAKER delivered the opinion of the Court.

In a general court-martial composed of officer and enlisted

members, Appellant was convicted, contrary to his pleas, of one

specification of rape of a child, one specification of

aggravated sexual assault of a child, two specifications of

child endangerment, and three specifications of indecent

liberties with a child in violation of Articles 120 and 134,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920, 934

(2006). The adjudged and approved sentence included confinement

for forty-five years, reduction to E-1, and a dishonorable

discharge. On review, the United States Navy-Marine Corps Court

of Criminal Appeals (CCA) affirmed the findings and the

sentence. United States v. Brown, No. NMCCA 201100516, 2012 CCA

LEXIS 448, at *33, 2012 WL 5944972, at *10 (N-M. Ct. Crim. App.

Nov. 28, 2012) (unpublished).

On Appellant’s petition, we granted review of the following

issue:

GENERALLY, OUTSIDE THE MILITARY JUSTICE SYSTEM, WITNESS
ATTENDANTS MAY ACCOMPANY A CHILD ON THE WITNESS STAND IF
THE PROSECUTION SHOWS GOOD CAUSE AND THE TRIAL JUDGE MAKES
A FINDING OF COMPELLING OR SUBSTANTIAL NEED. HERE, WITHOUT
GOOD CAUSE SHOWN AND WITHOUT FINDINGS OF COMPELLING OR
SUBSTANTIAL NEED, THE MILITARY JUDGE ALLOWED A VICTIM
ADVOCATE TO SERVE AS A WITNESS ATTENDANT FOR A SEVENTEEN-
YEAR-OLD; THEN THE MILITARY JUDGE REFERRED TO THE WITNESS
ATTENDANT AS THE COMPLAINANT’S “ADVOCATE” BEFORE THE
MEMBERS. DID THIS PROCEDURE VIOLATE APPELLANT’S
PRESUMPTION OF INNOCENCE AND RIGHT TO A FAIR TRIAL?

2
United States v. Brown, No. 13-0244/NA

For the reasons set forth below, we conclude that the

military judge did not abuse his discretion under Military Rule

of Evidence (M.R.E.) 611(a) when he allowed the victim advocate

to sit next to AW during her testimony.

BACKGROUND

The CCA found the following facts:

The appellant met Ms. RB in July of 2003 and they
were married in August of 2004. At the time of the
2004 marriage to the appellant, Ms. RB had four
children: MMB, a daughter, age 14; MB, a son, age 12;
AW, a daughter, age 11; and JW, a son, age 8. None
are the biological children of the appellant.

Ms. RB worked nights shift [sic] and, as a
result, the appellant was often left alone in charge
of the four children. During these times, the
appellant regularly provided the children with alcohol
and played drinking games with them. The appellant
also provided MMB with pornography. A few months
after they were married, while he was home caring for
the children, the appellant had sexual intercourse
with AW, who was 11 at the time. The appellant then
continued to have sexual intercourse with AW over the
course of approximately the next four years. The
appellant’s sexual actions with AW followed a usual
pattern -- the appellant would drink alcohol with the
children, take AW upstairs under the guise of
receiving a massage from her, and thereafter have sex
with her in an upstairs bedroom. At one point during
the four years AW thought she had become pregnant by
him and subsequently suffered a miscarriage. The
appellant’s assaults of AW only stopped when she
threatened to report him in 2008. Also, while the
appellant was deployed from November 2006 to November
2007, he sent MMB prurient email messages. In 2009,
AW finally revealed the appellant’s sexual molestation
to her mother. 1 An investigation and this court-
martial followed.
1
AW testified that her mother then sent AW to live with AW’s
grandparents, but AW “wasn’t allowed” to report the rape to the
3
United States v. Brown, No. 13-0244/NA

The appellant’s general court martial commenced
on 20 June 2011. At the time of the trial, AW was 17
years old and her 18th birthday was mere weeks away.

. . . .

AW, who was 17 years old at the time of trial,
testified as a Government witness. Her initial
testimony began on 20 June 2011; after only 15
questions by the trial counsel, AW started to cry. As
the trial counsel attempted the next question, AW
“burst into tears.” AW continued to cry as she
struggled to answer more questions. She then stated
“I can’t do this,” and requested a break. At that
time, the military judge excused the members and
discussed with AW the courtroom process. He informed
her that she should discuss with the trial counsel
what adjustments she believed he could make to ensure
her comfort. 2 After a short recess, the trial counsel
requested of the court that AW’s victim advocate be
seated next to AW during her testimony. The defense
objected, instead requesting that the victim advocate
be seated in the gallery. The military judge
overruled the objection, and placed the court in an
overnight recess.

The following morning, in an Article 39(a)
session, the trial defense counsel renewed his
objection, arguing that placing the victim advocate
next to AW bolstered her credibility to the members.
The military judge overruled defense counsel’s
objection and stated his intent to allow the victim
advocate to sit next to AW during the testimony. The
military judge proscribed any verbal communication or
physical contact between AW and her advocate. Prior

police at that time. AW testified that it was not until after
Appellant left her mother that her mother called her “and told
us that I was allowed to go to the police.” With the help of
her grandmother, AW then promptly reported the rape to local
police.
2
During the Article 39(a), UCMJ, 10 U.S.C. § 839 (2006), session
that followed AW’s crying, AW could not look at the military
judge and gave only nonverbal answers to his questions.
4
United States v. Brown, No. 13-0244/NA

to the members’ return to the courtroom, AW was seated
on the witness stand and her advocate was seated on
the bailiff’s chair next to AW. Upon the members’
return to the courtroom, the military judge informed
the members that sitting next to AW was “an advocate
that has been assigned to [AW].” The military judge
explained to the members that this was “an
accommodation” he had made and that the members were
not to interpret her presence as an endorsement of
AW’s credibility. 3 AW then finished her testimony
without further incident. There is no indication that
her advocate had any physical contact, verbal
communication, or otherwise interfered with the
testimony of AW.

2012 CCA LEXIS 448, at *3-*10, 2012 WL 5944972, at *1-*3

(footnotes omitted).

Before this Court, Appellant argues that allowing a support 4

person to accompany a witness on the stand “erodes the

3
The military judge instructed the members that his decision to
allow the advocate to sit with AW:

should in no way be interpreted by you as an
endorsement by me or the government or anyone else of
the credibility of [AW]’s testimony. You will
evaluate the credibility of her testimony in the same
manner you will any other witness. . . . This is an
accommodation I have made. You will infer nothing
from it.
4
Courts generally refer to an adult who accompanies a witness to
the stand to facilitate the witness’s testimony as an
“attendant” or “support person.” Compare 18 U.S.C. § 3509(i)
(“adult attendant”), and Sexton v. Howard, 55 F.3d 1557, 1559
(11th Cir. 1995) (“adult attendant”), with State v. T.E., 775
A.2d 686, 689 (N.J. Super. Ct. 2001) (“adult support person”),
State v. Letendre, 13 A.3d 249, 255 (N.H. 2011) (“support
persons”), and Czech v. State, 945 A.2d 1088, 1093 (Del. 2008)
(“support person”). Neither the UCMJ nor the Rules for Courts-
Martial (R.C.M.) address such a position; therefore, we use the
5
United States v. Brown, No. 13-0244/NA

presumption of innocence and violates an accused’s due process

right to a fair trial” and is therefore “inherently

prejudicial.” Brief for Appellant at 9, United States v. Brown,

No. 13-0244 (C.A.A.F. Apr. 11, 2013). Appellant urges us to

require trial judges to find “compelling necessity” before

allowing a support person to accompany a testifying witness.

Brief for Appellant at 15; see State v. Rulona, 785 P.2d 615,

617 (Haw. 1990), overruled on other grounds by State v. Mueller,

76 P.3d 943 (Haw. 2003). But see T.E., 775 A.2d at 696

(“Although these Hawaii cases deem this practice unduly

prejudicial, they are ‘contrary to the great majority of the

reported decisions throughout the United States,’ and other

jurisdictions ‘do not find the authority of these two cases to

be compelling.’” (quoting State v. Rowray, 860 P.2d 40, 43 (Kan.

Ct. App. 1993))).

Government counsel argues that the military judge did not

abuse his discretion under M.R.E. 611 and R.C.M. 801. Brief for

Appellee at 17, United States v. Brown, No. 13-0244 (C.A.A.F.

generic term “support person.” We also note that while other
courts have analyzed the use of a parent, relative, spouse, or
other adult as a support person, in this case Ms. Deweese was
designated as a victim advocate. See generally Dep’t of the
Navy, Chief of Naval Operations Instr. 1752.1B, Sexual Assault
Victim Intervention (SAVI) Program (Dec. 29, 2006); Dep’t of
Defense Dir. 6495.01, Sexual Assault Prevention and Response
(SAPR) Program (Jan. 23, 2012, incorporating change 1, Apr. 30,
2013) (to be codified at 32 C.F.R. pt. 103). Thus, this case
and this opinion only address the use of a trained victim
advocate as a support person.
6
United States v. Brown, No. 13-0244/NA

May 1, 2013). The Government asserts that the facts and

circumstances of this case justified the presence of a support

person, and the military judge’s member instruction limited any

vouching effect from the presence of the support person. Brief

for Appellee at 21-22, 25-27.

DISCUSSION

We review a military judge’s control of the mode of witness

interrogation pursuant to M.R.E. 611 for abuse of discretion.

See United States v. Collier, 67 M.J. 347, 353-54 (C.A.A.F.

2009); cf. United States v. Pope, 69 M.J. 328, 333 (C.A.A.F.

2011) (while “we afford substantial discretion to a military

judge’s evidentiary rulings,” greater deference is given when

balancing is conducted on the record). Similarly, we review a

military judge’s exercise of “reasonable control over the

proceedings” pursuant to R.C.M. 801 for abuse of discretion.

See United States v. Satterlee, 55 M.J. 168, 171 (C.A.A.F.

2001). “For the ruling to be an abuse of discretion, it must be

more than a mere difference of opinion; rather it must be

arbitrary, fanciful, clearly unreasonable or clearly erroneous.”

Collier, 67 M.J. at 353 (citing United States v. McElhaney, 54

M.J. 120, 130 (C.A.A.F. 2000) (internal quotation marks

omitted).

M.R.E. 611(a) provides that the military judge “shall

exercise reasonable control over the mode and order of

7
United States v. Brown, No. 13-0244/NA

interrogating witnesses and presenting evidence so as to (1)

make the interrogation and presentation effective for the

ascertainment of the truth, (2) avoid needless consumption of

time, and (3) protect witnesses from harassment or undue

embarrassment.” 5 Similarly, pursuant to Article 36, UCMJ, 10

U.S.C. § 836 (2006), the President has directed that military

judges shall “(2) [e]nsure that the dignity and decorum of the

proceedings are maintained” and “(3) exercise reasonable control

over the proceedings to promote the purposes of these rules and

this Manual.” R.C.M. 801(a). The discussion of R.C.M. 801

explains that “Courts-martial should be conducted in an

atmosphere which is conducive to calm and detached deliberation

and determination of the issues presented” and instructs the

military judge to “prevent unnecessary waste of time and promote

the ascertainment of truth.” R.C.M. 801(a) Discussion.

ANALYSIS

After reviewing the record and military judge’s findings in

this case, we hold that the military judge did not abuse his

5
While we do not rely on state authority, we note that a number
of states have considered the same issue presented in this case
under their equivalent of M.R.E. 611(a). See, e.g., Letendre,
13 A.3d at 255; T.E., 775 A.2d at 695 (citing the New Jersey
version of M.R.E. 611(a) and noting that “[t]he protection of
children from undue trauma when testifying is an important
public policy goal”); Czech, 945 A.2d at 1095; cf. State v.
Rochelle, 298 P.3d 293, 297 (Kan. 2013) (not citing M.R.E. 611,
but analyzing for abuse of discretion based on trial judge’s
duty to keep order and control courtroom proceedings).
8
United States v. Brown, No. 13-0244/NA

discretion by allowing a support person to accompany AW on the

stand. This conclusion is based on the following factors.

First, although AW was not a child of tender years, the military

judge found that she “was not just crying during testimony, [she

was] completely unintelligible and unable to speak because she

was crying.” Moreover, the record reflects an effort on behalf

of the military judge to proceed without the accommodation of a

support person. When AW first took the stand, she answered

trial counsel’s questions in one-word or one-sentence answers.

After the sixteenth question, the witness “bursts into tears.”

When trial counsel asked AW if she would be okay, AW continued

“crying.” After the twenty-first question, the record notes the

witness crying and saying “I can’t do this.” After a pause, the

trial counsel asked AW if she wanted a break, and she indicated

that she wanted a break. The military judge then recessed the

court until the next morning. While he might have again

determined following this overnight break whether or not the

witness could now testify, in our view, he did not abuse his

discretion in not doing so given the prior efforts to do so as

well as his observations of the witness the prior day.

Second, the military judge minimized the risk of prejudice

to the accused by instructing the advocate not to communicate

with the witness and by instructing the jurors to disregard the

presence of the advocate. Moreover, there is no evidence --

9
United States v. Brown, No. 13-0244/NA

such as an admonition by the military judge or objection by

defense counsel -– suggesting that the advocate failed to follow

the military judge’s instructions. Nor is there any evidence

that defense counsel’s ability to cross-examine AW was

negatively affected by the advocate’s presence. 6

In this case, the witness was physically overtaken by

sobbing and could not provide information to the court. Where,

as here, the military judge took reasonable steps to test the

witness’s capacity to continue as well as steps to mitigate the

risks of prejudice to the accused, it was within the military

judge’s discretion to conclude that further attempts to proceed

with a witness in such a state would “needless[ly] consum[e] . .

. time,” M.R.E. 611 (a)(2), and do not aid in “ascertainment of

the truth,” M.R.E. 611 (a)(1).

CONCLUSION

The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.

6
Appellant urges this Court to require the military judge to
make formal findings before allowing a support person to
accompany a witness to the stand. Brief for Appellant at 14,
16. As noted, we have analyzed the present case under a
military judge’s discretion pursuant to M.R.E. 611 and R.C.M.
801. The President and legislature could of course adopt
specific procedures for courts-martial to follow when allowing
adult attendants, as Congress has in fact done for federal
civilian trials. Cf. 18 U.S.C. § 3509(i) (giving children under
the age of eighteen “the right to be accompanied by an adult
attendant to provide emotional support to the child,” and
requiring videotaping of the accompanied testimony but not
requiring any formal findings by the trial judge).
10