UNITED STATES, Appellee
v.
Harvey A. Gardinier II, Staff Sergeant
U.S. Army, Appellant
No. 06-0591
Crim. App. No. 20020427
United States Court of Appeals for the Armed Forces
Argued February 25, 2009
Decided April 28, 2009
ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, STUCKY, and RYAN, JJ., joined.
Counsel
For Appellant: Captain William J. Stephens (argued); Lieutenant
Colonel Matthew M. Miller, Lieutenant Colonel Mark Tellitocci,
Major Bradley M. Voorhees, and Major Grace M. Gallagher (on
brief); Lieutenant Colonel Jonathan F. Potter and Captain Teresa
L. Raymond.
For Appellee: Captain Philip M. Staten (argued); Colonel Denise
R. Lind and Lieutenant Colonel Mark H. Sydenham (on brief).
Military Judge: Gary V. Casida
This opinion is subject to revision before final publication.
United States v. Gardinier, No. 06-0591/AR
Judge ERDMANN delivered the opinion of the court.
This is the second time this case has been before this
court. Staff Sergeant Harvey A. Gardinier II was convicted of
one specification of indecent liberties with a child and one
specification of committing an indecent act upon the same child,
both in violation of Article 134, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 934 (2000).1 In our first opinion we
summarized the facts as follows:
In December 2001, Gardinier’s five-year-old
daughter, KG, told her mother that Gardinier had
touched her inappropriately. Her mother immediately
took KG to Evans Army Community Hospital in Ft.
Carson, Colorado, where a medical examination was
conducted. The allegations were also reported to the
El Paso County (Colorado) sheriff’s office and the El
Paso County Department of Human Services. On January
2, 2002, personnel from those agencies conducted a
joint interview of KG, which was videotaped. That
interview was immediately followed by a forensic
medical examination by a sexual assault nurse
examiner.
On January 3, 2002, Gardinier was interviewed by
a sheriff’s department detective and then separately
by an Army Criminal Investigation Division (CID)
agent. The CID agent did not advise Gardinier of his
rights under Article 31(b), UCMJ, 10 U.S.C. § 831(b)
(2000). Both interviews were videotaped and Gardinier
provided a written statement at the request of the CID
agent. On January 7, the CID agent advised Gardinier
of his Article 31, UCMJ, rights. Gardinier waived his
rights and provided another statement.
At trial the military judge admitted the
videotape of the January 3 CID interview and both the
January 3 and January 7 statements. He also admitted
1
Gardinier was acquitted by the military judge of one
specification of indecent liberties with a child and one
specification of indecent acts with the same child.
2
United States v. Gardinier, No. 06-0591/AR
the “Forensic Medical Examination” form completed by
the sexual assault nurse examiner and allowed her to
testify as to what KG told her during the examination.
Further, the military judge determined that KG was not
available to testify at trial and admitted the
videotape of KG’s interview with the El Paso law
enforcement and human services officials. All of this
evidence was admitted over defense objection.
United States v. Gardinier (Gardinier II), 65 M.J. 60, 61-62
(C.A.A.F. 2007).
In its initial review of the case, the United States Army
Court of Criminal Appeals determined the military judge erred in
finding that KG was unavailable to testify. United States v.
Gardinier (Gardinier I), 63 M.J. 531, 540 (A. Ct. Crim. App.
2006). The videotape of her interview with civilian law
enforcement was, therefore, erroneously admitted into evidence
because it violated Gardinier’s Sixth Amendment right to
confront his accuser. Id. That court went on to find that the
error was harmless beyond a reasonable doubt and affirmed the
findings and sentence. Id. at 543.
In our 2007 decision we found that Gardinier’s January 3,
2002, handwritten statement and the videotape of his interview
that day were erroneously admitted because Gardinier had not
been properly advised of his rights under Article 31(b), UCMJ.
Gardinier II, 65 M.J. at 64. We also held KG’s statements to
the sexual assault nurse were erroneously admitted in violation
of the Confrontation Clause of the Sixth Amendment. Id. at 66.
3
United States v. Gardinier, No. 06-0591/AR
We held that Gardinier’s January 7, 2002, statement was properly
admitted. Id. at 64.
The effect of our decision and the initial decision of the
Court of Criminal Appeals was that the following evidence had
been admitted in error at Gardinier’s trial: (1) the January 2,
2002, videotape of KG’s interview with civilian authorities; (2)
Gardinier’s January 3, 2002, handwritten statement; (3) the
videotape of Gardinier’s January 3, 2002, interview; and (4) the
statements KG made to the sexual assault nurse. Given the
“changed evidentiary landscape,” we remanded the case to the
Court of Criminal Appeals to conduct a factual sufficiency
review and also to consider whether the errors were harmless
beyond a reasonable doubt. Id. at 66-67.
On remand, the lower court held that the evidence was
factually sufficient and the evidentiary errors were harmless
beyond a reasonable doubt. United States v. Gardinier
(Gardinier III), No. ARMY 20020427, slip op. at 7 (A. Ct. Crim.
App. Apr. 25, 2008). We granted Gardinier’s petition to
determine whether the lower court was correct in holding that
the evidentiary errors were harmless beyond a reasonable doubt.
We hold that the errors were not harmless beyond a reasonable
doubt and reverse the Court of Criminal Appeals.
4
United States v. Gardinier, No. 06-0591/AR
Discussion
“For most constitutional errors at trial, we apply the
harmless error test set forth in Chapman v. California, 386 U.S.
18 (1967), to determine whether the error is harmless beyond a
reasonable doubt.” United States v. Upham, 66 M.J. 83, 86
(C.A.A.F. 2008). Evidence admitted in violation of Article 31,
UCMJ, or the Confrontation Clause of the Sixth Amendment is
subject to that standard. See United States v. Brisbane, 63
M.J. 106, 116 (C.A.A.F. 2006); United States v. Crudup, 67 M.J.
92, 94 (C.A.A.F. 2008). “Whether a constitutional error in
admitting evidence is harmless beyond a reasonable doubt is a
question of law that we review de novo.” Crudup, 67 M.J. at 94.
In assessing harmlessness in the constitutional context,
the question is not whether the evidence is legally sufficient
to uphold Gardinier’s conviction without the erroneously
admitted evidence. See Fahy v. Connecticut, 375 U.S. 85, 86
(1963). Rather, “‘[t]he question is whether there is a
reasonable possibility that the evidence complained of might
have contributed to the conviction.’” Chapman, 386 U.S. at 23
(quoting Fahy, 375 U.S. at 86-87).
In United States v. Othuru, this court discussed what
“contribute” to the conviction means:
To say that an error did not “contribute” to the
ensuing verdict is not, of course, to say that the
jury was totally unaware of that feature of the trial
later held to have been erroneous. . . .
5
United States v. Gardinier, No. 06-0591/AR
To say that an error did not contribute to the
verdict is, rather, to find that error unimportant in
relation to everything else the jury considered on the
issue in question, as revealed in the record.
65 M.J. 375, 377 (C.A.A.F. 2007) (quoting Yates v. Evatt, 500
U.S. 391, 403 (1991), overruled on other grounds by Estelle v.
McGuire, 502 U.S. 62, 72 n.4 (1991)).
Additionally, in Confrontation Clause cases, this court
frequently looks to the factors set forth in Delaware v. Van
Arsdall, 475 U.S. 673, 684 (1986), to assess whether an error is
harmless beyond a reasonable doubt. See, e.g., Crudup, 67 M.J.
at 94-95; Othuru, 65 M.J. at 378. The Van Arsdall Court stated:
Whether such an error is harmless in a particular case
depends upon a host of factors, all readily accessible
to reviewing courts. These factors include the
importance of the witness’ testimony in the
prosecution’s case, whether the testimony was
cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the
witness on material points, the extent of cross-
examination otherwise permitted, and, of course, the
overall strength of the prosecution’s case.
Van Arsdall, 475 U.S. at 684 (citations omitted). We commence
our analysis with a review of the erroneously admitted evidence:
Videotape of KG’s January 2, 2002, Interview
The videotape of KG’s January 2, 2002, interview with
personnel from the department of human services and the
sheriff’s office contains a number of allegations supportive of
the Government’s case: KG responded affirmatively when asked if
Gardinier touches children; she related that Gardinier touched
6
United States v. Gardinier, No. 06-0591/AR
her crotch area with his hand after she had taken a bath and
that he was naked during this incident; she acknowledged that
Gardinier had touched her crotch area other times; when the
interviewers ask if Gardinier ever makes KG touch him, KG
responds affirmatively and says that “it’s bigger” when she
touches “it”; KG went on to say that “daddy was naked” and “[a]
lot” of “pee” comes out of “it” after she touches “it.”
When the military judge admitted the tape into evidence he
stated he had watched the videotape more than once and the
videotape was “direct evidence of the alleged acts” and “more
probative than any other evidence.” The military judge went on
to state that “the videotape allows the finder of fact to
actually view directly [KG]’s demeanor and her statements
unfiltered by any other person’s perceptions or memory.” As the
military judge was the finder of fact in this case, we need not
speculate as to the importance of this evidence to the finder of
fact. The military judge considered KG’s videotaped interview
as “direct evidence” that was “more probative than any other
evidence.”
Videotape of Gardinier’s January 3, 2002, Interview
The videotape of Gardinier’s January 3, 2002, interview
with civilian police and Army CID is over four hours in duration
and includes the administration of a “computer voice stress
test,” which was explained to Gardinier as the next generation
7
United States v. Gardinier, No. 06-0591/AR
polygraph which does not create false positives. The video
reflects that during the computer voice stress test Gardinier
was asked: (1) “Have you ever touched [KG]’s vaginal area for
sexual gratification?” and (2) “Have you ever had or asked KG to
touch your penis?” The detective explained that he was not
talking about “normal parental maintenance” such as bathing,
diapering and hygiene, and Gardinier indicated he understood
this.
Gardinier responded “No” to both of those questions. When
the test was completed, the detective showed Gardinier that the
computer voice stress test printout indicated he was not being
truthful in response to the two substantive questions.
Gardinier continued to say he had “never done that” and such
activities are “not what I do.” After about thirty minutes of
additional questioning, Gardinier began making incriminating
statements.
On the tape Gardinier stated that perhaps he made a
mistake, but that did not make him a bad person. He
acknowledged having sexual thoughts when KG touched his penis,
but argued he was merely excited for his wife to return home.
He also acknowledged that he touched her vagina while both of
them were naked in the shower. He stated his penis became erect
and he was sexually aroused while touching her. Additionally,
Gardinier told the detective that KG touched his penis for about
8
United States v. Gardinier, No. 06-0591/AR
five seconds and it grew a little bit after she touched it.
Further describing this incident, Gardinier stated that after KG
touched his penis he stroked his penis one or two times and some
fluid came out. He also admitted that KG had touched his penis
two to three times on other occasions. When he admitted the
videotape, the military judge stated he had viewed the taped
interview more than once.
In reviewing the tape the military judge saw Gardinier
“fail” the computer voice stress test in regard to two pivotal
questions concerning his conduct towards KG. He also saw the
detective explain on the video how he knew from the test that
Gardinier was not telling the truth. Military Rule of Evidence
(M.R.E.) 707 prohibits the results of a polygraph examination
and the opinion of a polygraph examiner from being admitted into
evidence. Polygraph evidence is prohibited because the
“reliability of polygraph evidence has not been sufficiently
established and its use at trial impinges upon the integrity of
the judicial system.” Manual for Courts-Martial, United States,
Analysis of the Military Rules of Evidence app. 22 at A22-51
(2008 ed.) (citing People v. Kegler, 242 Cal. Rptr. 897 (Cal.
Ct. App. 1987)).2
2
The admission of the polygraph evidence was not objected to at
trial nor argued by the parties on appeal. We do not base our
decision on the apparent violation of M.R.E. 707, but we do take
notice of the content of the videotape viewed by the military
judge in applying the Chapman test.
9
United States v. Gardinier, No. 06-0591/AR
KG’s Hearsay Statements to the Sexual Assault Nurse and
Gardinier’s January 3, 2002, Statement
In addition to the videotapes of the Gardinier and KG
interviews, the military judge erroneously admitted KG’s
statements to the sexual assault nurse and Gardinier’s January
3, 2002, statement. The sexual assault nurse was permitted to
testify that KG told her she touched “Daddy’s cooter” and
“sometimes she saw Daddy’s cooter get bigger,” which was
consistent with KG’s statement in the videotaped interview.
Gardinier’s January 3, 2002, written statement closely
paralleled many of the oral statements he made during the
videotaped interview after he had been administered the computer
voice stress test. At trial the Government placed great
emphasis on this statement because it was “in his own writing,
in his own words, without others coaching him and without others
putting any words in his mouth. He sits there alone in the room
and writes these statements out.”
Analysis
The impact of the admission and consideration of the two
videotapes is problematic for the Government in its efforts to
establish that there is no reasonable possibility that the
evidence complained of might have contributed to the conviction.
The military judge viewed both videotapes more than once. There
can be little doubt that he placed a great deal of importance on
KG’s interview as he stated that her recorded statements were
10
United States v. Gardinier, No. 06-0591/AR
“more probative than any other evidence” and that “the videotape
allows the finder of fact to actually view directly [KG]’s
demeanor and her statements unfiltered by any other person’s
perceptions or memory.”
While the military judge did not make specific findings as
to the weight he attributed to the Gardinier videotape, his
statements about the KG videotape illustrate the importance that
he, as the factfinder, placed on seeing the demeanor and hearing
the statements of key witnesses. Not only did the military
judge observe Gardinier’s demeanor during the videotaped
interview, he witnessed the entire computer voice stress test
where the detective informed Gardinier that the test reflected
that he was untruthful.
We have already discussed the importance of the erroneously
admitted evidence to the Government’s case and the importance
that the military judge placed on that evidence. The centrality
of the videotapes to the Government’s case and probative value
given to them by the factfinder weighs heavily against the
Government.
As to whether the evidence was cumulative, important
portions of KG’s videotaped interview were not cumulative of
untainted evidence. While several hearsay statements made by KG
were admitted into evidence, as the military judge noted, those
statements were filtered by the perceptions and memory of the
11
United States v. Gardinier, No. 06-0591/AR
persons who heard them.3 Her videotaped interview was the only
opportunity for the factfinder to see and hear her give an
accounting of the incidents.
Nor was Gardinier’s January 3 statement entirely cumulative
of the more formal January 7 statement which was admitted into
evidence. The Government urged greater emphasis on the January
3 statement because it was handwritten, in his own words and
without coaching from the police. While the two statements
contained many similarities pertaining to the offenses of which
Gardinier was convicted, the January 3 statement contained
admissions from Gardinier not found in the January 7 statement.
In the January 3 statement, Gardinier states that he admonished
KG and sent her out of the room after his “hand went to [his]
penis which ejaculated a little which she noticed.” However, in
the January 7 statement, Gardinier indicates that he had already
3
This hearsay testimony was admitted through three witnesses.
Douglas H. Lehman, a social worker who provided six hours of
treatment for KG, testified that KG only made one statement
pertaining to sexual abuse, i.e., that Gardinier made her touch
his “cooter.” Saundra M. Freeman was a friend of the family who
stayed with the family after the allegations arose. She
testified that KG drew pictures that KG said were “her daddy’s
pee-pee,” “her daddy laying on the bed naked” and “her mom
wearing underwear.” Tracy Gardinier, Gardinier’s wife and KG’s
mother, testified that she asked KG if anyone ever touched her
private parts and KG responded “Daddy does.” Tracy further
testified that KG said Gardinier touched her every time Tracy
left the house. These hearsay statements do not provide the
detail or specificity present in the erroneously admitted
evidence.
12
United States v. Gardinier, No. 06-0591/AR
sent KG away when he saw that his penis “had gotten aroused and
a drop of fluid was at the end of it” and he “touched it.” In
the January 3 statement, Gardinier also stated that the incident
where KG touched his penis, which was the basis for the indecent
liberties offense, lasted about “five minutes.” In contrast, in
the January 7 statement, he changed his accounting and told the
CID agent the incident lasted “approximately one minute.”
Finally, with regard to the indecent acts conviction where
Gardinier touched KG’s vagina while they were in the shower
together, in the January 3 statement, Gardinier stated he got
“unintentionally aroused,” whereas in the January 7 statement,
Gardinier clarified that he was only “somewhat aroused” and it
“had nothing to with her.” His January 3 statement did not
address whether the arousal resulted from touching KG.
Similarly, in addition to the military judge being able to
observe the computer stress test and having the opportunity to
hear Gardinier and observe his demeanor, the videotape of
Gardinier’s January 3 interview contains evidence that is not
contained in the January 7 statement. For instance, in the
videotape, Gardinier described how, after KG touched his penis,
he stroked his penis and some fluid came out, whereas in the
January 7 written statement he only admitted touching his penis,
which already had a drop of fluid on it. His statement on the
videotape describes more contact than either of the written
13
United States v. Gardinier, No. 06-0591/AR
statements. In the videotape, Gardinier also discussed that he
made a “mistake” -- an acknowledgement not present in the
January 7 statement.
As to whether the evidence was corroborated or contradicted
by admissible evidence, Gardinier’s January 7, 2002, statement
was the principal piece of evidence remaining against him and
was corroborated by summary hearsay statements made on different
occasions by the alleged victim. Supra note 3. However,
Gardinier’s January 7 statement contained no clear admission
that he took indecent liberties with KG or engaged in indecent
acts with her as charged. He admitted being caught partially
naked by KG and that she, on her own accord, unexpectedly
touched his penis. He also admitted that he twice took showers
with her and washed her private parts. Although he admitted
becoming sexually aroused during both these incidents, he
unequivocally denied any deliberate sexual activity with or
thoughts about his daughter. As discussed above, the January 3
statement and videotape contained more serious admissions from
Gardinier, in contrast to the properly admitted January 7
statement. KG’s videotaped statements also provided inculpatory
evidence of material facts for both specifications that
contradicted the properly admitted Gardinier statement in
important ways and strengthened the Government case.
14
United States v. Gardinier, No. 06-0591/AR
KG did not testify, so the defense had no opportunity to
cross-examine her. As a result, KG’s videotaped interview and
her hearsay statements admitted through the sexual assault nurse
were not tested by the crucible of cross-examination.
Finally, without the videotapes of KG and Gardinier,
without Gardiner’s January 3 handwritten statement and without
the sexual assault nurse’s hearsay testimony, the overall
strength of the Government’s case is not “‘overwhelming.’” See
United States v. Moran, 65 M.J. 178, 188 (C.A.A.F. 2007)
(quoting United States v. Ross, 7 M.J. 174, 178 (C.M.A. 1979))
(holding a constitutional error harmless because the
government’s untainted evidence was overwhelming).
In analyzing all of the erroneously admitted evidence and
the remaining evidence of record under the Van Arsdall factors,
we find that there is a reasonable possibility that the
erroneously admitted evidence might have contributed to the
conviction. See Chapman, 386 U.S. at 23. We cannot find that
videotapes containing allegations of sexual abuse by a five-
year-old victim against her father, which the military judge as
factfinder called “more probative than any other evidence,” and
the father’s subsequent incriminating statements, when balanced
with the remaining evidence of record, were “‘unimportant’” to
the finder of fact. See Othuru, 65 M.J. at 377 (citation
omitted).
15
United States v. Gardinier, No. 06-0591/AR
Decision
The decision of the United States Army Court of Criminal
Appeals is reversed. The findings of guilty and the sentence
are set aside. The record is returned to the Judge Advocate
General of the Army and a rehearing is authorized.
16