UNITED STATES, Appellee
v.
Marcus W. STEPHENS, Staff Sergeant
U.S. Air Force, Appellant
No. 08-0589
Crim. App. No. 36682
United States Court of Appeals for the Armed Forces
Argued January 12, 2009
Decided March 12, 2009
STUCKY, J., delivered the opinion of the Court, in which ERDMANN
and RYAN, JJ., joined. BAKER, J., filed a separate opinion
concurring in the result, in which EFFRON, C.J., joined.
Counsel
For Appellant: Dwight H. Sullivan, Esq. (argued); Major Shannon
A. Bennett, Captain Anthony D. Ortiz, and Captain Tiffany M.
Wagner (on brief).
For Appellee: Captain Coretta Gray (argued); Colonel Gerald R.
Bruce and Major Jeremy S. Weber (on brief); Major Matthew S.
Ward and Captain John M. Simms.
Military Judge: Mary M. Boone
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Stephens, No. 08-0589/AF
Judge STUCKY delivered the opinion of the Court.
We granted review to determine whether the military judge
erred by allowing the father of the victim to testify in
sentencing about the effect the investigation and court-martial
had on the victim. We hold that there was no error and affirm.
I. Background
Appellant, a twenty-one-year-old staff sergeant (E-5) was
charged with inappropriately touching his thirteen-year-old
cousin by marriage on two occasions at family parties, once in
December 2003 and the other in August 2004. Appellant pled not
guilty to carnal knowledge, sodomy, and indecent acts. Articles
120, 125, and 134, Uniform Code of Military Justice (UCMJ), 10
U.S.C. §§ 920, 925, 934 (2000). A general court-martial with
members convicted him of attempted carnal knowledge, attempted
sodomy, and indecent acts, all in August 2004. Article 80,
UCMJ, 10 U.S.C. §§ 880 (2000); Article 134, UCMJ. He was
acquitted of the sole specification (indecent acts) that was
alleged to have occurred in December 2003.
The victim, BU, testified at length via closed-circuit
television in the findings phase of the trial. She did not
testify on sentencing. During the Government’s sentencing case,
the trial counsel called the victim’s father to testify about
the effect the crimes had on her. He testified concerning her
emotional state and the fact that she no longer appeared to
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enjoy sports or other activities. The trial counsel then asked
him the following question: “How about the effect of this
process, the investigation and her testifying and what not, how
has that impacted her and how has it impacted you?” The
following exchange then took place:
CDC2: Your honor, we would object to the relevance of
this testimony.
MJ: I’ll allow it, it goes to victim impact. I’ll
allow it, go ahead.
CDC2: Your honor, we object. They are asking to
penalize the Defendant for invoking his right to have
a trial and the process involved with that.
MJ: Well, I think you need to focus a little bit, but
the process is okay, what she has had to go through.
That is fine, go ahead, focus it a little more.
CDC2: Your honor, is that overruled?
MJ: Yes, in one sense. He can go through what the
effect of it since this has come about until now and
she has had to testify, the impact and the effect on
her and that means as she has gone through the
process, just the impact, emotionally on her.
CDC2: Very [w]ell, your honor.
MJ: You can talk about that.
TC: Thank you.
WIT: It has been totally devastating, what she has
had to go through, what she has had to put up with;
the constant retelling to different people, to
different systems of the court system. I mean, to
keep bringing it slamming it in her face, I mean,
ya’ll just don’t have a clue what this has done to my
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daughter. She is nowhere near the same daughter that
she was before. It has just totally changed her one
hundred percent.
The convening authority approved the adjudged sentence to a
dishonorable discharge, confinement for three years, forfeiture
of all pay and allowances, and reduction to the lowest enlisted
grade. The United States Air Force Court of Criminal Appeals
affirmed. United States v. Stephens, 66 M.J. 520, 529 (A.F. Ct.
Crim. App. 2008).
II. Analysis
We test a military judge’s admission or exclusion of
evidence, including sentencing evidence, for an abuse of
discretion. United States v. Manns, 54 M.J. 164, 166 (C.A.A.F.
2000). Rule for Courts-Martial (R.C.M.) 1001(b)(4) provides as
follows:
The trial counsel may present evidence as to any
aggravating circumstances directly relating to or
resulting from the offenses of which the accused has
been found guilty. Evidence in aggravation includes,
but is not limited to, evidence of financial, social,
psychological, and medical impact on or cost to any
person . . . who was the victim of an offense
committed by the accused . . . .
Testimony as to the effect of the process, including the trial,
on the victim, as was admitted here, certainly comes within the
rather broad ambit of this rule. Of course, a rule or other
provision of the Manual for Courts-Martial cannot sanction a
violation of Appellant’s constitutional rights. See United
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States v. Lopez, 35 M.J. 35, 39 (C.M.A. 1992) (noting that the
military justice system has hierarchical sources of rights
beginning with the Constitution and that “[n]ormal rules of
statutory construction provide that the highest source authority
will be paramount, unless a lower source creates rules that are
constitutional and provide greater rights for the individual”).
Furthermore, sentencing evidence is subject to the requirements
of Military Rule of Evidence (M.R.E.) 403. United States v.
Hursey, 55 M.J. 34, 36 (C.A.A.F. 2001) (citing United States v.
Rust, 41 M.J. 472, 478 (C.A.A.F. 1995)). When the military
judge conducts a proper balancing test under M.R.E. 403 on the
record, her ruling will not be overturned absent a clear abuse
of discretion; the ruling of a military judge who fails to do so
will receive correspondingly less deference. Id.; Manns, 54
M.J. at 166. Here, while the military judge limited the ambit
of the father’s testimony, she did not perform the balancing
test on the record.
Appellant, citing United States v. Mobley, 31 M.J. 273
(C.M.A. 1990), United States v. Carr, 25 M.J. 637 (A.C.M.R.
1987), and Burns v. Gammon, 260 F.3d 892 (8th Cir. 2001), argues
that the father’s testimony was an impermissible comment on
Appellant’s right to plead not guilty, confront the witnesses
against him, and put the Government to its proof, and hence
constitutional error.
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This case is not analogous to the cases cited. In Mobley,
the trial counsel called attention to the accused’s failure to
testify by apostrophizing at length, asking rhetorical questions
of the mute accused and providing his own answers.1 Both Carr
and Burns were cases in which the government, at trial,
explicitly commented on the fact that the appellant’s invocation
of his constitutional right to a trial forced the victim to
endure the rigors of cross-examination and relive the experience
of being attacked. Carr, 25 M.J. at 638; Burns, 260 F.3d at
896. Here, there was no explicit comment by the trial counsel
or the father concerning Appellant’s invocation of his rights
but rather, a brief reference to the effect of the entire
proceeding (including, but not limited to, the trial) on
Appellant’s victim. Considering the facts of this case, we do
not find the cited cases persuasive and find no constitutional
violation.
This does not end the inquiry, however, as relevant
evidence may still be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice.
1
31 M.J. at 278-79. We did not hold this to be error, but
vacated and remanded. Id. at 280. On remand, the Air Force
Court of Military Review found error but held it to be
constitutionally harmless. United States v. Mobley, 34 M.J.
527, 529, 531-32 (A.F.C.M.R. 1991). We summarily affirmed.
United States v. Mobley, 36 M.J. 34 (C.M.A. 1992).
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M.R.E. 403. When, as here, a military judge fails to conduct
the M.R.E. 403 balancing test on the record, we will examine the
record ourselves. Manns, 54 M.J. at 166.
The overriding concern of M.R.E. 403 “is that evidence will
be used in a way that distorts rather than aids accurate fact
finding.” 1 Stephen A. Saltzburg et al., Military Rules of
Evidence Manual § 403.02[4], at 4-27 (6th ed. 2006). Doing so,
we find that the father’s testimony was probative because it
showed specific psychological harm BU suffered as a result of
Appellant’s offense; she was no longer able to enjoy sports and
other activities and had changed significantly. See R.C.M.
1001(b)(4) (stating that aggravation evidence includes evidence
of psychological impact on the victim). The concern for unfair
prejudice arises from the possibility that the court members
might misuse this testimony as a comment on Appellant’s right to
confront and cross-examine the witness. Under the circumstances
of this case, we find that possibility remote. The admission of
this evidence did not distort accurate fact finding. Limited as
the father’s testimony was by the military judge, its probative
value in establishing specific harm to the victim was not
substantially outweighed by any danger of unfair prejudice to
Appellant. The military judge did not abuse her discretion.
The evidence was relevant victim impact evidence and properly
admitted under R.C.M. 1001(b)(4).
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We caution trial counsel introducing aggravation evidence
under R.C.M. 1001(b)(4) to use care in eliciting testimony that
may cross the line into impermissible comment on an accused’s
invocation of his constitutional rights. While we find no abuse
of discretion here, it is not difficult, particularly in cases
involving sexual abuse, to envision such a case.
III. Decision
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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BAKER, Judge, with whom EFFRON, Chief Judge, joins
(concurring in the result):
Although I do not agree with the Court’s conclusion that
there was no error, I agree that Appellant was not prejudiced.
For that reason, I concur in the result.
As the Court notes, this case is distinguished from United
States v. Carr, 25 M.J. 637 (A.C.M.R. 1987), and Burns v.
Gammon, 260 F.3d 892 (8th Cir. 2001), because the Government did
not expressly comment on Appellant’s constitutional right to
trial or to remain silent. United States v. Stephens, __ M.J.
__ (6) (C.A.A.F. 2009). Rather, the father testified during a
series of questions about the impact that the crime, the
process, and testifying had on his daughter. But the questions
asked of the victim’s father, while more opaque than in Carr and
Burns, nonetheless implicated Appellant’s constitutional right
to trial. Significantly, defense counsel objected on that
specific ground. Moreover, the question to which counsel
objected was clearly segregated from the previous question,
which dealt with the emotional impact of the offense generally.
The question objected to dealt with the impact of the trial
itself.
TC: How about the effect of this process, the
investigation and her testifying and what not, how has
that impacted her and how has it impacted you?
. . . .
United States v. Stephens, No. 08-0589/AF
WIT: It has been totally devastating, what she has
had to go through, what she has had to put up with;
the constant retelling to different people, to
different systems of the court system. I mean, to
keep bringing it slamming it in her face, I mean,
ya’ll just don’t have a clue what this has done to my
daughter. She is nowhere near the same daughter that
she was before. It has just totally changed her one
hundred percent.
Therefore, the issue was plainly before the military judge
and this is not a case where the issue is only found with the
clear vision of line-by-line appellate hindsight. Accordingly,
the military judge was obliged to address whether the proffered
testimony was directly related to the offense and legally
relevant under Military Rule of Evidence (M.R.E.) 403. See
United States v. Hardison, 64 M.J. 279, 281 (C.A.A.F. 2007)
(citing two limitations on the admission of aggravation
evidence, that such evidence is “‘directly relating’ to the
offenses of which the accused has been found guilty” and passes
the test of M.R.E. 403). Here, it is clear that, for the
purpose of M.R.E. 401 and Rule for Courts-Martial 1001(b)(4),
the testimony directly related to the impact of the offense on
the victim, including the testimony about the investigation and
related proceedings. See United States v. Rust, 41 M.J. 472,
478 (C.A.A.F. 1995) (“The phrase ‘directly relating to or
resulting from the offenses’ imposes a ‘higher standard’ than
‘mere relevance.’ Evidence is admissible on sentence which
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shows ‘the specific harm caused by the defendant.’”) (citations
omitted).
The problem is that the question and answer also referenced
the victim’s testimony at trial. As a result, on these facts
the M.R.E. 403 balancing test should have broken in Appellant’s
favor. The probative value of the answer to this question was
weak in light of the other extensive evidence of emotional
impact. This evidence included the father’s other testimony,
the mother’s testimony, and the expert opinion of the
psychologist on sentencing; all of which discussed how the
offense had affected the victim’s emotional well-being and
changed her as a person. Additionally, the victim testified for
more than four hours during Appellant’s court-martial, and the
members could observe for themselves the emotional impact of the
offense and subsequent process on her. On the other hand, the
father’s answer implicated Appellant’s right to trial. In a
court-martial before members, that raised the possibility that
one or more members might sentence Appellant not only for his
offense and its direct impact on the victim, but also for
compelling the victim to endure the burden of testifying at
trial, which is his constitutional right. That significant due
process risk outweighed the probative value of the evidence.
However, in the final analysis, the error in M.R.E. 403
balancing was harmless for much the same reason that the
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evidence was not probative. The emotional impact on the victim
was dramatic, self-evident during the victim’s testimony, and
substantiated through expert testimony. For this reason, any
error was harmless using either a constitutional or
nonconstitutional standard.
4