United States v. Harrow

UNITED STATES, Appellee

v.

Ashontia K. HARROW, Airman Basic
U.S. Air Force, Appellant

No. 06-0474
Crim. App. No. 35257

United States Court of Appeals for the Armed Forces

Argued February 14, 2007

Decided June 22, 2007

RYAN, J., delivered the opinion of the Court, in which BAKER,
ERDMANN, and STUCKY, JJ., joined. EFFRON, C.J., filed an
opinion concurring in part and in the result.

Counsel

For Appellant: Captain Christopher L. Ferretti (argued);
Lieutenant Colonel Mark R. Strickland (on brief); Captain
Christopher S. Morgan.

For Appellee: Captain Jefferson E. McBride (argued); Colonel
Gerald R. Bruce, Lieutenant Colonel Robert V. Combs, and Captain
Daniel J. Breen (on brief); Colonel Gary F. Spencer and Major
Steven R. Kaufman.

Amicus Curiae for Appellant: Captain Alex Schneider (law
student)(argued); James H. Rosenblatt, Esq. (supervising
attorney) (on brief) for Mississippi College School of Law.

Amicus Curiae for Appellee: Captain Jennifer J. Bowersox (law
student)(argued); Victoria A. Lowery, Esq. (supervising
attorney) and Katie Akins (law student) (on brief) for
Mississippi College School of Law.

Military Judge: James L. Flannery

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Harrow, 06-0474/AF

Judge RYAN delivered the opinion of the Court.

Appellant argues that three evidentiary errors during her

trial require this Court to overturn her conviction for the

unpremeditated murder of her infant daughter. She also alleges

errors arising from her guilty plea to larceny, the United

States Air Force Court of Criminal Appeals’ sentence

reassessment, as well as from post-trial and appellate delay.

We address each of these six issues. Although we conclude that

this case is not without error, we hold that the errors did not

prejudice Appellant. Therefore, for the reasons stated below,

we affirm the decision of the lower court.

I. BACKGROUND

A general court-martial composed of officer and enlisted

members convicted Appellant, contrary to her plea, of the

unpremeditated murder of her infant daughter, in violation of

Article 118, Uniform Code of Military Justice (UCMJ), 10 U.S.C.

§ 918 (2000). Appellant pled guilty to violations of Articles

86, 107, 121 and 134, UCMJ, 10 U.S.C. §§ 886, 907, 921, 934

(2000), and thirteen specifications thereunder, to include:

multiple failures to go, absence without leave, making a false

official statement, theft of insurance proceeds, fraud in

obtaining phone services, dishonorable failure to pay just

debts, and making false claims to secure the approval of a loan.

The sentence adjudged by the court-martial and approved by the

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convening authority included a dishonorable discharge,

confinement for twenty-five years, and forfeiture of all pay and

allowances.

The Court of Criminal Appeals affirmed all charges except

one specification of absence without leave. United States v.

Harrow, 62 M.J. 649, 661-62 (A.F. Ct. Crim. App. 2006). The

Court of Criminal Appeals found that Appellant’s plea of guilty

to the absence without leave charge was improvident and

reassessed her sentence to a dishonorable discharge, twenty-four

years and six months of confinement, forfeiture of all pay and

allowances, and reduction to the grade of E-1.

We granted review on the following issues:

I.

WHETHER THE MILITARY JUDGE ERRED BY
PREVENTING THE DEFENSE FROM IMPEACHING THE
TESTIMONY OF THE DECEASED BABY’S FATHER -
THE ONLY OTHER PERSON PRESENT AT THE TIME OF
THE ALLEGED SHAKING INCIDENT - WITH PRIOR
INCONSISTENT STATEMENTS REGARDING THE BABY’S
INTERACTIONS WITH APPELLANT AND THE BABY’S
CRYING AFTER APPELLANT LEFT THE HOUSE.

II.

WHETHER APPELLANT’S DUE PROCESS RIGHTS WERE
VIOLATED WHEN IT TOOK OVER FOUR YEARS FOR
THE ARTICLE 66 REVIEW BY THE COURT BELOW TO
BE COMPLETED.

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III.

WHETHER THE MILITARY JUDGE ERRED BY DENYING
A DEFENSE MOTION IN LIMINE TO EXCLUDE THE
TESTIMONY OF VARIOUS WITNESSES REGARDING
APPELLANT’S PATTERN OF MINOR PARENTAL ABUSE
WHERE THE TESTIMONY CONSTITUTED
INAPPROPRIATE CHARACTER EVIDENCE THAT WAS
UNFAIRLY PREJUDICIAL.

IV.

WHETHER THE MILITARY JUDGE ERRED BY ALLOWING
THE PROSECUTION’S EXPERT WITNESS TO PRESENT
INADMISSIBLE PROFILE EVIDENCE THAT PLACED
APPELLANT IN THE PROFILED CATEGORY AND
EXCLUDED THE DECEASED BABY’S FATHER - THE
ONLY OTHER SUSPECT - FROM THE PROFILED
CATEGORY.

V.

WHETHER APPELLANT’S GUILTY PLEAS TO CHARGE
II AND ITS SPECIFICATION [LARCENY] WERE
PROVIDENT.

VI.

WHETHER THE AIR FORCE COURT OF CRIMINAL
APPEALS PROPERLY REASSESSED THE SENTENCE
WHEN IT INCLUDED A REDUCTION IN PAY GRADE
THAT WAS NOT ADJUDGED (OR AUTHORIZED).1

1
We heard oral argument in this case at the Mississippi College
School of Law, Jackson, Mississippi, as part of the Court’s
“Project Outreach.” See United States v. Finch, 64 M.J. 118,
119 (C.A.A.F. 2006); United States v. Mahoney, 58 M.J. 346, 347
n.1 (C.A.A.F. 2003).

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II. FACTS

A. OVERVIEW

We focus first on the general background facts relevant to

Appellant’s conviction for the unpremeditated murder of her

infant daughter, Destiny. Destiny was taken to the hospital

after suffering severe brain trauma from blunt force injury on

June 23, 2000. At the hospital doctors determined that Destiny

had suffered serious brain damage consistent with shaken baby

syndrome and blunt force trauma. Five months later Destiny died

from injuries inflicted that day. She was eleven months old.

In the course of the ensuing investigation, Appellant made

contradictory and incriminating statements to investigators and

others. These admissions and inconsistencies implicated her in

the murder of Destiny. Direct and circumstantial evidence

regarding the timing of Destiny’s injury and Appellant’s

consciousness of guilt, as well as expert testimony,

corroborated Appellant’s admissions and bolstered the

prosecution’s case against her.

The defense attempted to deflect culpability away from

Appellant, arguing Antonio Jackson, Destiny’s father, was the

perpetrator. Some evidence showed that Appellant told

investigators that Destiny’s death may have been an accident.

Appellant did not testify and the defense called no witnesses on

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the merits. All defense evidence was developed through cross-

examination of the prosecution’s witnesses.

The panel was asked to decide under what circumstances, and

at whose hand, Destiny died. What follows is a summary of some

of the evidence presented by the prosecution to prove the cause

and circumstances of Destiny’s death.

B. Physical Injuries to Destiny

On June 23, 2000, Destiny lived in government housing at

Eglin Air Force Base, Florida, with Appellant. Jackson, the

natural father of Destiny, lived out of state, but was visiting

Appellant and staying at her apartment for several days.

On the day of the incident Appellant went to work and left

Destiny with Jackson. Jackson was home with Destiny throughout

the morning and she slept for most of that time. Appellant

returned to her base apartment at midday.

Shortly after she arrived home, Appellant took off her

uniform and lay on the couch. Sometime thereafter Appellant

became angry with Jackson. Appellant began arguing with

Jackson. The fighting escalated into Appellant screaming,

yelling, and cursing.

At some point during the argument, Appellant picked Destiny

up off the couch by one arm. Appellant held Destiny by one arm,

allowing her to flail about, throughout her tirade. Jackson

told her to be careful with the baby and not to take her anger

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out on Destiny. Appellant only became angrier. Appellant

picked up a broom and pointed it at Jackson. She approached

him, spit in his face, and continued to yell at him.

Eventually, Jackson walked away from Appellant and went into

the bathroom in order to avoid the confrontation. Appellant

followed him to the bathroom and continued screaming at him.

Jackson left the bathroom and returned to the living room to

avoid her. She followed him and began to throw things at him,

including Destiny’s walker.

Appellant continued to scream at Jackson, and he returned to

the bathroom and locked the door. After Jackson locked himself

in the bathroom, he could hear Appellant still screaming and

things hitting the wall. He turned up the radio and tried to

ignore her.

At 2:50 p.m. that day, after Jackson locked himself in the

bathroom, and before Appellant left the apartment, Security

Forces Senior Airman (SrA) Jason Warren, a patrolman assigned to

Security Forces, knocked on the front door of Appellant’s

apartment. SrA Warren had been dispatched to Appellant’s

apartment to tell her to contact the first sergeant at work.

This was a common occurrence, as Appellant did not have a phone.

Appellant had the baby on her hip and the baby appeared to

make eye contact with SrA Warren. During the two minutes he was

at the residence, SrA Warren did not hear any yelling and

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nothing appeared to be out of the ordinary. SrA Warren did not

see Jackson. SrA Warren delivered the message and departed.

Appellant left shortly thereafter, slamming the door.

After Jackson heard the door slam, he left the bathroom and

found Destiny on the couch, lying on her side. He tried to give

her a bottle, but she was unresponsive and would not take it.

Jackson heard gargling noises coming from Destiny and other

sounds. He picked her up and observed vomit where she had been

laying. He held Destiny against his body and patted her on the

back in an attempt to clear out any remaining emesis. As he was

holding her, she began to shake, her back arched, and her eyes

rolled back in her head. She then went limp.

Jackson immediately carried Destiny next door to the

apartment of Mr. and Mrs. Harris to call 911 because there was

no telephone in Appellant’s apartment. Only a few minutes

elapsed between the time Appellant sped off and the time Jackson

sought assistance from Mr. and Mrs. Harris.

Mr. and Mrs. Harris, Appellant’s neighbors, both testified

about what happened before Jackson arrived at their door. Mr.

Harris was seated in the computer room of their apartment, and

Mrs. Harris was in their living room, which directly abutted

Appellant’s living room. As the Harris’ apartment shared a

common but very thin wall with Appellant’s apartment, they

clearly heard the disturbance in Appellant’s apartment.

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Mr. and Mrs. Harris both heard Appellant, and only

Appellant, yelling next door. Mrs. Harris heard Destiny crying

loudly for about ten minutes during the middle of the yelling.

Mrs. Harris also heard a loud bang against the shared living

room wall, knocking off a picture in her apartment, and then she

no longer heard Destiny crying. After the thump she heard

Destiny emit one or two whimpers before going silent. Five

minutes after she heard the loud bang against the wall, Mrs.

Harris heard Appellant’s front door slam so hard that it set off

Mrs. Harris’ door bell. She saw Appellant get into her car to

leave, spinning her tires as she exited the parking lot.

Appellant looked “very angry and very raged” as she left the

apartment.

Mr. Harris also heard “thumps” and Appellant “yelling” in

Appellant’s apartment. Mr. Harris looked out the window and saw

Appellant spin her tires as she exited the parking lot.

According to both Mr. and Mrs. Harris, Jackson arrived at their

door with Destiny asking them to dial 911 only a minute or two

after Appellant left. Responding to Jackson’s plea, Mrs. Harris

called 911 and requested emergency assistance for Destiny.

Police and ambulance dispatch records, and the testimony of

Jackson, SrA Warren, and Mr. and Mrs. Harris, establish the

following sequence of events in a thirteen-minute period from

2:45 p.m. to 2:58 p.m.: SrA Warren was dispatched to

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Appellant’s apartment to deliver a message to her; SrA Warren

arrived at Appellant’s apartment and departed shortly

thereafter; Appellant left the apartment; and, almost

immediately thereafter, the Harrises called 911.

C. The Death of Destiny

Destiny was hospitalized as doctors attempted to save her.

She had sustained serious blunt force trauma to her brain and

the left side of her face and suffered significant hemorrhaging

of the brain and eyes. Notwithstanding two operations and

extraordinary care, Destiny died five months later.

An autopsy confirmed significant injuries to Destiny’s

brain. Dr. Gary D. Cumberland, a forensic pathologist and the

chief medical examiner in the local Florida coroner’s office,

conducted an autopsy and found: bruising on the surface of the

brain, tearing of the brain tissue, swelling of the brain, and

several subdural and subarachnoid hemorrhages. The autopsy also

revealed hemorrhages in the eyes. The autopsy did not reveal

injuries associated with external trauma (e.g., skin bruises)

because the injuries occurred five months before Destiny died

and had already healed.

Dr. Cumberland concluded that Destiny “died as a result of

blunt force injuries to the head in the situation of the shaken

baby syndrome.” A complete autopsy revealed no other possible

cause of death. In Dr. Cumberland’s opinion, after speaking

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with an eye specialist and a neuropathologist, the only possible

cause of death was shaken baby syndrome. Dr. Cumberland found

the manner of death to be homicide, as the injuries were too

severe to have happened accidentally.

D. AFOSI Investigation

Special Agent (SA) Liesl D. Davenport, an Air Force Office

of Special Investigations (AFOSI) investigator, participated in

four interviews with Appellant. The first interview was

conducted on the 28th of June by a Federal Bureau of

Investigation (FBI) agent with SA Davenport sitting in.

Initially, Appellant was not a suspect because the

investigators had been told that Appellant was not home at all

that day. Appellant told the investigators during the first

interview that she went home at lunch because she had not been

feeling well. She told the investigators that she had taken

some medication once she arrived at home, placed Destiny in her

crib, and that she remained on the couch napping until SrA

Warren came to her door. Appellant stated that Jackson was

either in the kitchen or bathroom the entire time; she did not

recount any fight or argument.

During this first interview Appellant stated that she had

never seen Jackson handle the baby improperly. But she told the

agents that she believed Jackson had accidentally shaken Destiny

when she was unresponsive after he asked the Harrises to call

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911. Appellant said that Mrs. Harris told her that Jackson was

shaking the baby so much that Mrs. Harris had to tell Jackson to

put the baby down.

When the agents attempted to verify this point in an

interview with Mrs. Harris, she denied that Jackson had shaken

the baby or that she had told Appellant that version of the

events. Upon finding inconsistencies in Appellant’s story, the

agents began to view Appellant as a possible suspect.

SA Davenport conducted a second interview with Appellant

with another AFOSI agent, SA Carver, on the 15th of August. SA

Davenport led the interview. Because Appellant was a suspect at

this point, SA Davenport advised Appellant of her Article 31(b),

UCMJ, 10 U.S.C. §831 (b) (2000) rights, which she waived.

At this interview Appellant changed her story and stated

that Destiny had not been in her crib. Instead, Appellant

stated that she held Destiny the entire time she was home.

There was no mention of Appellant taking a nap on the couch in

the second interview. Appellant stated that she may have caused

Destiny’s injuries accidentally when she went to the door to

speak with SrA Warren. She thought she might have swung around

quickly when she turned away from the door, causing Destiny’s

head to snap back.

At this point, the investigators knew that Jackson and

Appellant had been arguing. But when SA Davenport asked

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Appellant about the argument she initially denied it.

Eventually, Appellant admitted that she and Jackson had argued

for twenty to thirty minutes during the time period in question.

However, Appellant remained adamant that she had not been angry

or frustrated when she left the apartment. Appellant maintained

that Mrs. Harris had told her that Jackson had possibly

accidentally injured the baby.

A third interview was conducted two days later. Appellant

was again read her Article 31(b), UCMJ, rights, which she

waived. During this interview Appellant admitted that she might

have accidentally caused Destiny’s injuries when she was playing

with her. She described how she would regularly throw Destiny

in the air and catch her, and how she thought that perhaps this

caused the injuries. She again stated that the accident also

might have happened when she was turning away from the door

after speaking with SrA Warren. Appellant told the investigators

that she tossed “it,” meaning Destiny, in the air twice on that

day.

Upon further questioning, Appellant asserted that only

Appellant or Jackson could have injured Destiny. When asked if

Jackson had injured Destiny, Appellant responded “no.”

According to SA Davenport, there was no additional pertinent

information gleaned from the fourth interview.

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E. Trial Testimony

In addition to introducing Appellant’s statements to

investigators, the prosecution introduced other statements made

by Appellant to establish her consciousness of guilt. Jackson

testified that, after the injuries to Destiny, Appellant, while

crying, told him that she might be responsible. Appellant also

told Jackson that they should not talk to AFOSI or the FBI and

that she thought Jackson was on “their” side and not hers.

The prosecution introduced evidence to establish Appellant’s

possible motives to injure Destiny. Stephanie Lewis, who was a

friend of Appellant’s sister, testified that Appellant had asked

her, prior to Destiny’s injury, if Lewis, who was separated from

the father of her children, thought her “man” might come back if

something happened to her children.

Appellant complained to Staff Sergeant (SSgt) Tynisha

Quick, a coworker, that because of money she spent on diapers

and formula for Destiny, Appellant did not have a phone, cable

television, or a social life. At one point, SSgt Quick observed

Appellant speak directly to Destiny, blaming her for all the

things she could no longer do.

SSgt Quick further testified that Appellant had told her

that Destiny was more responsive to Jackson than to her.

Appellant told SSgt Quick that Destiny would tremble and cry

every time Appellant went near her, but would stop when Jackson

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was near. SSgt Quick testified that Appellant told her that she

thought Jackson was trying to turn Destiny against her.

As will be discussed later when addressing Issue III, the

prosecution presented several instances of Appellant’s uncharged

misconduct relating to Destiny. Airman First Class (A1C)

Crystal E. Mills testified to an earlier incident where she saw

Appellant bite Destiny after the baby had bitten her. Destiny

began crying after Appellant bit her. According to A1C Mills,

Appellant ignored the cries. A1C also recounted instances where

Appellant would “flick” the hand of Destiny to get her to stop

doing things. SSgt Quick also recounted an incident where

Appellant “thumped” or “flicked” Destiny on the thigh when she

was misbehaving in a restaurant.2

Finally, the Government called two expert witnesses who

established the cause of Destiny’s death. As previously

discussed, Dr. Cumberland, a forensic pathologist from the

coroner’s office, explained his medical findings from the

autopsy. Dr. Sharon Cooper testified as an expert witness in

the field of developmental and forensic pediatrics. The defense

did not object to her credentials, and Dr. Cooper was recognized

by the court as an expert in her field.

Dr. Cooper stated that children under one year old were the

2
Trial counsel agreed at a motion hearing to exclude evidence
from Destiny’s autopsy that revealed evidence of previous severe
head trauma.

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most likely victims of fatal child abuse. She testified that

there is a high degree of recidivism in child abuse, and

specifically in shaken baby cases, meaning that an abuser will

continue to shake a baby over a period of time. Usually, the

shaking becomes more intense in each instance. Dr. Cooper also

testified that the most common perpetrators of this type of

abuse are parents.

Dr. Cooper then explained the specific medical findings

consistent with shaken baby syndrome. She stated that retinal

hemorrhaging, brain injury, and bone trauma are the three most

common symptoms. After going through the symptoms, Dr. Cooper

explained the common triggers that would cause a person to shake

a baby. According to Dr. Cooper, the most common cause is

persistent crying. She stated that a person would have to shake

a baby for about twenty seconds to inflict serious damage.

Dr. Cooper testified that she reviewed the medical,

investigative and social work records associated with this case.

She also interviewed Destiny’s primary care physician and her

foster mother. She observed all of the witnesses called during

the trial as well. After going over all of the evidence, Dr.

Cooper opined that Destiny died of an inflicted injury,

specifically, of shaken baby syndrome combined with blunt force

trauma. She specifically noted that Destiny’s patient records

from her initial treatment stated that Destiny exhibited

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swelling of the scalp and bruising on the side of the face.

This bruising and swelling was consistent with external blunt

force trauma, such as a baby would experience after being thrown

against a wall.

Dr. Cooper also explained the standard progression of

symptoms in a shaken baby case. It usually takes fifteen

minutes after the shaking has occurred for any symptoms to

appear. The symptoms manifest themselves in a change in mental

status or an abnormal cry. The abnormal cry stems from an

altered neural state, which causes breathing difficulty.

Jackson described this type of noise during his testimony.

The victim then becomes less responsive and less active.

Next, a victim will vomit. The vomit will not be normal,

because the child has lost neural functioning to the point where

the stomach is no longer digesting food. Finally, the baby will

arch her back, roll her eyes back in her head, and become stiff.

This is a classic tonic seizure, associated with abnormal

electrical activity in the brain. Dr. Cooper stated that a

baby’s eyes could be open after the trauma, but they would not

be able to track anything visually. All of Destiny’s symptoms,

as recounted by Jackson, were consistent with shaken baby

syndrome.

Dr. Cooper testified that it was unlikely that anything else

caused Destiny’s symptoms. She also stated that the act of

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patting the child on the back to try to dislodge vomit would not

cause the symptoms Destiny experienced. Running with an infant

in a person’s arms or tossing a baby in the air and catching her

would not cause this type of injury either.

The Government rested at the conclusion of Dr. Cooper’s

testimony. After the presentation of the prosecution’s case,

Appellant rested. In closing, the prosecution argued that the

evidence rebutted Appellant’s prior claim of an accidental

injury to Destiny and identified Appellant as the perpetrator of

the murder of Destiny. Appellant’s argument revolved around a

single point -- that the members could not “exclude Mr. Jackson

as a potential perpetrator of the offense.” After three hours

of deliberations, the panel returned a verdict finding Appellant

guilty of the unpremeditated murder of Destiny.

III. DISCUSSION

A. Appellant’s Opportunity to Impeach Jackson

1.

Appellant alleges the military judge erred under Military

Rule of Evidence (M.R.E.) 613 when he denied the defense request

to recall SA Davenport to establish alleged inconsistencies

between Jackson’s testimony at trial and a statement he made to

SA Davenport during the investigation. The purported

inconsistency related to Destiny’s circumstances when Appellant

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left her apartment. At trial Jackson testified that Destiny was

limp and non-responsive when Appellant left. Defense counsel

asserted that Jackson’s August 15 statement to SA Davenport

stated that Destiny was crying after Appellant left.

During cross-examination, defense counsel referenced

Jackson’s prior statements to investigators and the

investigators’ notes to establish that Jackson had changed

certain aspects of his story between statements, embellished his

trial testimony by including details that he had omitted from

his prior statements, and presented trial testimony that was

different in some respects from his prior statements. For

example, the defense had Jackson admit that he initially lied to

the FBI about whether he and Appellant were in a fight, and that

a prior statement made no reference to Appellant spitting on him

or Appellant speeding away from the apartment.

With respect to other questions about the substance of the

five prior statements Jackson made during the course of the

investigations, defense counsel attempted to refresh Jackson’s

recollection as to what he had said in these prior statements.

Jackson repeatedly responded that he either did not remember a

fact or did not remember what he had said in his statements.

While the trial counsel stated that the prosecution would not

object if the defense wanted to admit Jackson’s August 15th

statement to investigators, defense counsel declined the

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invitation.

After the Government concluded its case, defense counsel

sought to recall SA Davenport pursuant to M.R.E. 613(b) in order

to prove inconsistencies in Jackson’s testimony with extrinsic

evidence. Specifically, defense counsel explained to the

military judge during an Article 39(a), UCMJ, 10 U.S.C. § 839

(a) (2000), session that he expected SA Davenport to testify

that Jackson told her during the investigation that Destiny was

crying after Appellant left the house. The defense counsel

argued that the testimony of SA Davenport was extrinsic evidence

that contradicted testimony Jackson gave at trial.

The military judge did not allow defense counsel to call SA

Davenport. The military judge ruled that the statements were

not inconsistent because Jackson had simply stated that he did

not remember when he was asked about whether Destiny was crying.

The military judge opined that there is only an inconsistent

statement when the witness denies making the statement, and

Jackson had merely stated that he did not remember and did not

have any recollection of Destiny crying after Appellant left.

In his ruling, the military judge cited M.R.E. 608 rather

than the appropriate rule of evidence, M.R.E. 613. While the

military judge referred to M.R.E. 608, the explanation of the

ruling focused on whether the evidence could be admitted as a

prior inconsistent statement. Although the record is less than

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clear, the military judge appears to have determined that the

evidence could not be brought in under M.R.E. 613. Moreover,

the military judge instructed the members on prior inconsistent

statements with regard to Jackson’s testimony during final

instructions on the merits.

Defense counsel and counsel for the Government agreed that

the extrinsic evidence was for impeachment, rather than for

substantive purposes. We note that defense counsel attached SA

Davenport’s AFOSI notes from the August interview with Jackson

as an appellate exhibit and offer of proof and expressly chose

not to attach Jackson’s statements as appellate exhibits. The

notes support Appellant’s assertion that Jackson told the agent

that Destiny was crying after Appellant left the apartment.

2.

The process of impeachment by prior inconsistent statement

is a tool to attack the credibility and/or recollection of a

witness. “By showing self-contradiction, the witness can be

discredited as a person capable of error.” United States v.

Banker, 15 M.J. 207, 210 (C.M.A. 1983); 3A John H. Wigmore,

Evidence § 874 (Chadbourne rev. 1970). M.R.E. 613(b) provides

that “[e]xtrinsic evidence of a prior inconsistent statement by

a witness is not admissible unless the witness is afforded an

opportunity to explain or deny the same and the opposite party

is afforded an opportunity to explain or deny the same . . . .”

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If the inconsistency is admitted, extrinsic evidence is

generally not admissible. United States v. Gibson, 39 M.J. 319,

324 (C.M.A. 1994) (holding that “‘the more expedient practice’

is to disallow extrinsic evidence of a prior inconsistent

statement if the witness admits making the statement”)(citations

omitted). If the inconsistency is not admitted, or the witness

equivocates, extrinsic evidence may be admitted, but only for

impeachment. United States v. Damatta-Olivera, 37 M.J. 474, 478

(C.M.A. 1993) (“whether testimony is inconsistent with a prior

statement is not limited to diametrically opposed answers but

may be found as well in evasive answers, inability to recall,

silence, or changes of position”).

A decision to admit or exclude evidence is reviewed for an

abuse of discretion. Id. In this case, the military judge

erred when he apparently determined that a failure to remember

facts contained in a prior statement cannot be inconsistent with

in-court testimony that differs from those facts.3 This Court,

3
In contrast, the military judge did not err with respect to
defense counsel’s effort to impeach Jackson regarding
Appellant’s interaction at the apartment with Destiny on June
23. Defense counsel asserted that Jackson’s prior statement to
AFOSI stated that Appellant was lying on the couch playing with
Destiny. The military judge found that Jackson was not asked
about this during his testimony, that there was no
inconsistency, and that the defense had not established a
foundation for later impeachment. The record supports the
military judge’s findings, and this is a correct statement of
the law. See United States v. Hale, 422 U.S. 171, 176 (1975)
(citation omitted) (reasoning that “[a]s a preliminary matter .

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in Damatta-Olivera, 37 M.J. at 478 and United States v.

Meghdadi, 60 M.J. 438, 444 (C.A.A.F. 2005), has noted that an

inconsistency, for purposes of M.R.E. 613, may be found “not

only in diametrically opposed answers,” but also in “inability

to recall,” Damatta-Olivera, 37 M.J. at 478, or equivocation.

Meghdadi, 60 M.J. at 444.

A military judge has considerable discretion to determine

if the trial testimony is inconsistent with a prior statement.

Damatta-Olivera, 37 M.J. at 478; see also United States v.

Insana, 423 F.2d 1165, 1170 (2d Cir. 1970). But here the

military judge appears not to have understood that an inability

to recall or a “non-responsive” answer may present an

inconsistency for purposes of M.R.E. 613. Consequently, his

evidentiary ruling, based on an incorrect understanding of the

law, was an abuse of discretion. United States v. Roberts, 59

M.J. 323, 326 (C.A.A.F. 2004) (“A military judge abuses his

. . the court must be persuaded that the [prior] statements are
indeed inconsistent [with trial testimony].”). The military
judge did not abuse his discretion in rejecting the defense
attempt, under the guise of impeachment, to bring in “new
evidence” that related to a point that Jackson had not testified
to at trial. See Damatta-Olivera, 37 M.J. at 478 (stating that
“[t]he military judge has considerable discretion to determine
if trial testimony is inconsistent.”).
Similarly, we see no basis for Appellant’s assertion of
error with respect to an alleged third inconsistency regarding
whether Appellant threw anything at Jackson during their
argument. Defense counsel did not raise an inconsistency
between Jackson’s testimony and a prior statement with respect
to this matter at trial.

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discretion when . . . he is incorrect about the applicable law,

or when he improperly applies the law.”).

Applying nonconstitutional harmless error analysis, we

conduct a de novo review to determine whether this error had a

substantial influence on the members’ verdict in the context of

the entire case. See Kotteakos v. United States, 328 U.S. 750,

764-65 (1946); United States v. Berry, 61 M.J. 91, 97 (C.A.A.F.

2005). We consider 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. Berry, 61 M.J. at 98. When a “fact

was already obvious from . . . testimony at trial” and the

evidence in question “would not have provided any new

ammunition,” an error is likely to be harmless. United States

v. Cano, 61 M.J. 74, 77-78 (C.A.A.F. 2005); see also United

States v. Santos, 59 M.J. 317, 322 (C.A.A.F. 2004).

As outlined above, and as articulated by the lower court,

the Government presented a convincing case against Appellant.

The evidence shows that Appellant was in a rage, that she was

alone with the victim, that she admitted to investigators that

only she and Jackson were possible suspects, that she did not

believe Jackson injured the baby, that she was untruthful on

numerous occasions, and that the timeline and quality of the

injuries amply supported the Government’s version of the facts.

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We also note that Dr. Cooper’s medical testimony regarding the

standard progression of shaken baby syndrome was both unrebutted

and consistent with the description of Destiny’s symptoms.

Further, the timeline established by the Government’s witnesses,

alone or in combination with Appellant’s pretrial statements

regarding Jackson’s location when she left the apartment, make

Jackson an unlikely suspect.

The defense’s case consisted of cross-examination of the

Government’s witnesses in an attempt to show that it was

possible that Jackson, rather than Appellant, could have

committed the crime. The defense’s case was exceptionally weak

in light of Appellant’s statements that Jackson was in the

bathroom when she left and that she did not believe he injured

Destiny, as well as the evidence of Appellant’s admissions,

consciousness of guilt, and her rage at the time of Destiny’s

injuries. Finally, there was no credible refutation of the

Government timeline, which was persuasive evidence that

Destiny’s injuries were sustained while Jackson was locked in

the bathroom, given the few minutes that passed between when

Appellant left the apartment and when the 911 call was placed.

The materiality of the excluded extrinsic evidence of prior

inconsistent statements must be viewed with an eye to its

permissible purpose, which was for impeachment only. The

defense never sought to seek the admission of any of Jackson’s

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statements, which presumably contained the same inconsistency

noted in the investigator’s notes, for use as substantive

evidence under M.R.E. 801(d)(1)(A) or any other evidentiary

rule.

As the lower court articulated and the record reveals,

defense counsel effectively impeached Jackson with respect to

the prior inconsistent statements by intrinsic evidence.

Harrow, 62 M.J. at 656-57. While defense counsel did not move

to admit Jackson’s August 15 statement, he repeatedly referred

to it and Jackson’s other statements to investigators in his

cross-examination of Jackson. Defense counsel cross-examined

Jackson at length regarding his lie to the FBI, changes in his

story between statements, his inability to remember even after

having the opportunity to review his prior statements, his

embellishment of his trial testimony beyond what he relayed to

investigators, and the fact that his memory must have been

better when the statements were given. And we agree with the

lower court that “defense counsel used this impeachment

extensively and effectively in his closing argument.” Id. at

657.

Furthermore, the military judge gave an instruction

regarding inconsistent statements, reiterating the point that

Jackson’s credibility was at issue. Members are presumed to

follow the military judge’s instructions, United States v.

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United States v. Harrow, 06-0474/AF

Taylor, 53 M.J. 195, 198 (C.A.A.F. 2000), and we have no basis

for concluding that they did not in this case.

The combination of cross-examination and argument by the

defense counsel impeached Jackson’s credibility and ability to

recall. The addition of the AFOSI agent’s testimony would have

been cumulative, and would not have changed the arguments

proffered by defense counsel to the members. Nor would it have

had a substantial influence on the members’ verdict. See

Santos, 59 M.J. at 322 (reasoning cumulative evidence was of

little probative value); see also United States v. Mitchell, 113

F.3d 1528, 1532 (10th Cir. 1997) (finding failure to admit

extrinsic evidence of witness’s prior inconsistent statement

harmless where defense counsel asked her whether she had made

the statement; although she testified she did not remember

making the statement, the jury was aware of the attack on her

credibility). Under the facts of this case, we cannot say that

a thorough impeachment of Jackson’s credibility and recollection

was not completed even absent the extrinsic evidence.

In light of all of the above factors, and given the purpose

for which M.R.E. 613 evidence may by used, the error was

harmless in this case.

B. M.R.E. 404(b) Evidence

1.

Defense counsel moved in limine for several pieces of

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evidence proffered by trial counsel to be excluded. The

evidence at issue was:

1) SSgt Quick’s testimony that Appellant thumped the baby hard
enough to make the baby scream.
2) A1C Mills’ testimony that Appellant flicked Destiny on the
body to punish her if Destiny reached for something.
3) Nina Harris’ testimony that she observed Appellant call
Destiny stupid and ugly, pull at Destiny by jerking her
arm, and grab her by the cheeks and pinched them hard when
she disobeyed.
4) Sharon Rogers’ and Deborah Gardner’s testimony that they
witnessed Appellant brushing the baby’s hair vigorously and
without care, and Mrs. Gardner’s testimony that she did so
for six hours straight after the baby’s brain surgery.
This occurred at the hospital after Destiny had been
shaken.
5) Nina Harris’ testimony that on one occasion Appellant left
Destiny at the Harris’ without food or diapers, then turned
off her cell phone and did not return that night.

The military judge ruled that the first three pieces of

testimony were admissible, but the last two were not.

In his ruling, the military judge determined that under

M.R.E. 404(b) the first three pieces of evidence tended to prove

a pattern of abuse, as well as intent. When the members were

properly instructed on the use of the M.R.E. 404(b) evidence,

however, they were instructed that it could only be used to show

Appellant’s intent or absence of accident. Appellant contends

that none of this evidence should have been admitted and that it

prejudiced her.

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2.

A decision to admit evidence is reviewed for abuse of

discretion. United States v. McCollum, 58 M.J. 323, 335

(C.A.A.F. 2003). In this case, the military judge applied the

correct test for the admissibility of uncharged misconduct under

M.R.E. 404(b). United States v. Reynolds, 29 M.J. 105, 109

(C.M.A. 1989). This Court recently summarized the analysis

under Reynolds: First, does the evidence reasonably support a

finding by the court members that Appellant committed prior

crimes, wrongs or acts? Second, what “fact . . . of

consequence” is made “more” or “less probable” by the existence

of this evidence? And last, is the “probative value . . .

substantially outweighed by the danger of unfair prejudice?”

United States v. Barnett, 63 M.J. 388, 394 (C.A.A.F. 2006)

(citations omitted).

The uncontroverted testimony describing each incident of

uncharged misconduct reasonably supports a finding by the court

members that Appellant did commit each of these alleged prior

acts.

We next address whether any of this evidence makes a fact

of consequence more or less probable. We begin by noting that

murder is a specific intent crime. This offense permits

conviction of lesser included offenses stemming from Destiny’s

death in the absence of specific intent to kill -- including but

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United States v. Harrow, 06-0474/AF

not limited to involuntary manslaughter, assault consummated by

a battery and negligent homicide. Manual for Courts-Martial,

United States pt. IV, para. 45.d. (2005 ed.) (MCM). While the

defense did not argue accident, evidence produced at trial,

through Appellant’s statements to investigators, supported an

argument that the injuries might have been accidentally

inflicted. The prosecution was entitled to present evidence to

rebut such an argument.

3.

Appellant argues that intent evidence is never admissible

unless a defendant specifically defends on the ground of either

lack of the requisite intent or accident. The Supreme Court,

examining this same question, unequivocally determined that

evidence of intent and lack of accident may be admitted

regardless of whether a defendant argues lack of intent because

every element of a crime must be proven by the prosecution.

Estelle v. McGuire, 502 U.S. 62, 69 (1991) (citing Mathews v.

United States, 485 U.S. 58, 64-65 (1988)).

This Court has dealt inconclusively with the holding of

Estelle in prior cases on the ground that Estelle involved a

state rule of evidence. Compare United States v. Diaz, 59 M.J.

79, 95 n.3 (C.A.A.F. 2003) (distinguishing Estelle), and United

States v. Morrison, 52 M.J. 117, 122-23 (C.A.A.F. 1999) (not

citing, but implicitly rejecting Estelle), with United States v.

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United States v. Harrow, 06-0474/AF

Whitner, 51 M.J. 457, 461 (C.A.A.F. 1999), and United States v.

Sweeney, 48 M.J. 117, 120 (C.A.A.F. 1998) (embracing the notion

that the prosecution must prove every element).

This Court’s intermittent efforts to distinguish Estelle as

a Supreme Court case addressing state, rather than federal, law

does not detract from the force of the basic tenet asserted by

the Supreme Court: “A simple plea of not guilty . . . puts the

prosecution to its proof as to all elements of the crime charged

. . . .” Mathews, 485 U.S. at 64-65 (1988) (reviewing a federal

bribery conviction); see also Old Chief v. United States, 519

U.S. 172, 199 (1997) (reviewing a federal firearm possession

conviction).

4.

But the question remains whether the relatively minor acts

admitted in this case under M.R.E. 404(b) in fact make intent to

kill or absence of accident more likely than not, and, if not,

whether Appellant was prejudiced by their admission.

We agree that the relevance of these minor acts to the

intent to kill is tenuous, at best. But we need not resolve the

issue of error where, as here, the question of prejudice is

easily decided. United States v. Hall, 56 M.J. 432, 437

(C.A.A.F. 2002); United States v. Nickoson, 15 C.M.A. 340, 344,

35 C.M.R. 312, 316 (1965).

We conclude that the admission of the acts under M.R.E.

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United States v. Harrow, 06-0474/AF

404(b) did not prejudice Appellant. The Government adduced

evidence at trial that Appellant shook Destiny with great force

for at least twenty seconds and either threw her against a wall

or used other force sufficient to result in serious blunt force

trauma to Destiny’s brain and the left side of her face,

including significant hemorrhaging of the brain and eyes and,

ultimately, death. In the context of the entire case, we are

convinced that acts of “flicking,” “pinching,” or “thumping” are

minor acts that did not have a substantial influence on the

members’ verdict in this case. Indeed, in his argument on

findings, the trial counsel did not even mention any of the

uncharged misconduct.

For the reasons stated above -- the weight of the remaining

evidence, combined with the weakness of the defense’s case -- we

conclude that any error stemming from the admission of this

evidence did not substantially prejudice Appellant. See

Barnett, 63 M.J. at 397 (holding that when the government

presents a strong case, the defense presents a weak case, and

the erroneously admitted M.R.E. 404(b) evidence was “of marginal

importance given the difference in contexts” between the

specifications and the incidents recounted in the erroneously

admitted evidence, the error was harmless); United States v.

Baumann, 54 M.J. 100, 105 (C.A.A.F. 2000) (reasoning that when

the “prosecution presented an overwhelming case,” the

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United States v. Harrow, 06-0474/AF

appellant’s defense was “extremely weak,” and the military judge

properly instructed on the use of M.R.E. 404(b) evidence, the

error was harmless); United States v. Kerr, 51 M.J. 401, 405

(C.A.A.F. 1999) (holding that when the remainder of the

Government’s case was strong and the defense presented no

evidence to contradict it, instead relying “on suggestion and

insinuation,” the M.R.E. 404(b) error was harmless); United

States v. Corbett, 29 M.J. 253, 256 (C.M.A. 1989) (determining

that inadmissible M.R.E. 404(b) evidence had a minimal effect on

the members, considering all the other evidence presented at

trial, the weakness of appellant’s own testimony on the merits,

and the inadmissible evidence’s tenuous relevance); see also

United States v. Davis, 657 F.2d 637, 640 (4th Cir. 1981)

(holding that erroneous admission of M.R.E. 404(b) evidence was

harmless when the remaining evidence conclusively implicated the

appellant); United States v. Ezzell, 644 F.2d 1304, 1306 (9th

Cir. 1981) (holding that where evidence of guilt is

overwhelming, M.R.E. 404(b) error was harmless).

C. Profile Evidence

Dr. Cooper testified as an expert witness in the fields of

developmental and forensic psychiatry. She testified about

child abuse and shaken baby syndrome in general and her specific

findings in this case. The defense did not challenge her

methodology or the relevance or reliability of her testimony.

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The defense counsel did raise the issue of impermissible profile

evidence and reiterated their understanding that the Government

did not intend to offer such evidence. The Government agreed.

Appellant challenges the following particulars of Dr.

Cooper’s testimony as impermissible profile evidence. First,

that the most common person to fatally abuse a child is a

biological parent. Defense counsel objected to this testimony,

but it was allowed by the military judge. Second, that the most

common trigger for baby shakings is persistent crying, which the

defense did not object to at trial. Finally, Dr. Cooper’s

testimony about the symptoms and progression of shaken baby

syndrome and her medical conclusion that Destiny’s primary

diagnosis was probably most consistent with an inflicted injury,

as opposed to an accidental injury. Defense counsel objected,

and the military judge overruled the objection.

Dr. Cooper did not offer an opinion as to which parent

abused the child in this case. Appellant argues that all of the

testimony above constituted impermissible profile evidence that

placed Appellant in the profiled category and excluded Destiny’s

father from the profiled category.

Profile evidence is evidence that presents a characteristic

profile or trait of an offender, and then places the accused’s

personal characteristic or trait within that profile as proof of

guilt. United States v. Rynning, 47 M.J. 420, 422 (C.A.A.F.

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United States v. Harrow, 06-0474/AF

1998). In United States v. Banks, this Court held that

“generally, use of any characteristic ‘profile’ as evidence of

guilt or innocence in criminal trials is improper.” 36 M.J.

150, 161 (C.M.A. 1992). Such evidence is improper because it

treads too closely to character evidence offered to show that an

accused acted in conformity with that character and committed

the act in question, evidence prohibited under M.R.E. 404(b).

See Banks, 36 M.J. at 161.

This Court recognizes that characteristic evidence of the

abuser is distinguishable from evidence that focuses on the

characteristics of a battered child. United States v. Traum, 60

M.J. 226, 235 (C.A.A.F. 2004). Moreover, evidence of the

characteristics of a child abuser is further distinguishable

from evidence about the symptoms and progression of shaken baby

syndrome. This is true even if that medical testimony, tied to

other facts adduced at trial, makes it more likely that an

accused is the one guilty of the charged offense.

We agree with Appellant that two of Dr. Cooper’s statements

were inadmissible profile evidence. The statements that the

most common person to fatally abuse a child is a biological

parent, and the statement that the most common trigger for baby

shakings is persistent crying, are focused on characteristics of

the abuser, as opposed to characteristics of the child. Id. at

234-35. But the other evidence complained of -- symptoms and

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United States v. Harrow, 06-0474/AF

progression of shaken baby syndrome -- is not profile evidence.

Of course, Dr. Cooper’s statements relating to profile

evidence pertained equally to both parents -- Appellant and

Jackson were both Destiny’s biological parents, and Destiny’s

persistent crying was heard by both of them on the day she

sustained her fatal injuries.

None of the profile evidence placed Appellant in the

profiled category and exclude Destiny’s father from the profiled

category. Rather, it placed them both squarely within the

profiled category. Given that the case focused on which parent

was responsible for the injury, and that the profile evidence

applied equally to each of them, we fail to see the prejudice.

Consequently, any error in admitting this evidence was harmless.4

Appellant does not argue that evidence regarding the

progression and symptoms of shaken baby syndrome are either

inadmissible expert testimony or profile evidence per se.

Rather, the argument is that such testimony, described as a

“modified profile of Destiny’s child abuse,” constituted

impermissible profile evidence in this case because the

4
As the defense did not object at trial when Dr. Cooper
testified that the most common trigger for baby shakings is
persistent crying, we normally would review such errors under a
plain error analysis. United States v. Powell, 49 M.J. 460
(C.A.A.F. 1998). We need not undertake a separate plain error
analysis in this case, as the issue can be resolved, along with
the evidence Appellant did object to, by determining whether any
error unduly prejudiced Appellant.

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United States v. Harrow, 06-0474/AF

testimony lined up with other facts adduced at trial in a manner

that allowed the Government to argue that it was Appellant,

rather than Jackson, who committed the offense of unpremeditated

murder. We reject Appellant’s argument.

First, the evidence regarding the progressions and symptoms

of shaken baby syndrome focuses on the characteristics of the

child, and fits squarely within Traum. Second, we are aware of

no authority that suggests that otherwise admissible expert

testimony regarding the symptoms and progression of a medical

syndrome can be transformed into profile evidence because the

timing of the symptoms supports an argument that it was the

accused that committed the offense.

Evidence is not profile evidence simply because it tends to

incriminate an accused. The prohibition against profile

evidence does not prohibit otherwise admissible expert evidence,

simply because other facts tie the testimony to a conclusion

that an appellant was the one in the best position to have

committed the charged act.

D. Improvident Guilty Plea

Appellant contends her guilty plea to the larceny charge

stemming from her fraudulent insurance claim was improvident.

During the providency inquiry Appellant admitted that she

fraudulently made a claim to her insurance carrier so that the

carrier would pay for damage done to another airman’s car.

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United States v. Harrow, 06-0474/AF

Appellant was not driving the car covered by her insurance

carrier when she collided with the other airman’s vehicle. In

fact, the accident occurred before Appellant had the insurance

upon which she made the claim. Appellant did not tell the

insurance company either of these facts and intended that they

pay the claim. As a result of Appellant’s misrepresentations,

the insurance carrier paid the other airman for damage Appellant

did to his car in the accident.

This Court rejects a guilty plea only where the record

shows a substantial basis in law and fact for questioning a

plea. United States v. Roderick, 62 M.J. 425, 428 (C.A.A.F.

2006). We review a military judge’s decision to accept a guilty

plea for an abuse of discretion. United States v. Phillippe, 63

M.J. 307, 309 (C.A.A.F. 2006). This Court permits the military

judge “in a borderline case . . . [to] give weight to the

defense evaluation of the evidence.” United States v.

McCrimmon, 60 M.J. 145, 152 (C.A.A.F. 2004) (citing United

States v. Clark, 28 M.J. 401, 407 (C.M.A. 1989)).

Appellant does not question that the military judge

properly stated the elements of the offense of a wrongful-

obtaining larceny. Nor does Appellant contend that Superior

Insurance Company had any obligation to pay a claim on an

uncovered car for an accident that took place outside of the

coverage period. Appellant nonetheless questions the factual

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United States v. Harrow, 06-0474/AF

sufficiency of the providency inquiry.

A guilty plea is provident if the facts elicited make out

each element of the charged offense. See United States v.

Garcia, 44 M.J. 496, 498 (C.A.A.F. 1996) (concluding that the

providence inquiry adequately established a factual basis

supporting each of those elements); United States v. Davenport,

9 M.J. 364, 367 (C.M.A. 1980) (holding that a plea of guilty is

provident where the factual circumstances as revealed by the

accused himself objectively support the alleged elements of the

offense).

In this case, the providence inquiry established that

insurance money in the amount of $729.65 was “wrongfully

obtained” from Superior Insurance for the use of Airman (Amn)

Hill, with the intent to defraud Superior Insurance of the use

and benefit of the money. See United States v. Riddle, 44 M.J.

282, 287 (C.A.A.F. 1996) (establishing larceny for intent to

steal pay entitlements to which appellant did not believe he was

entitled). Appellant had no entitlement to insurance for an

accident prior to her coverage period, as she acknowledged. As

the providence inquiry shows, Appellant designated Amn Hill to

be the recipient of the Superior Insurance payment. Appellant

stated that she intended Superior Insurance to pay the money and

that she “learned that Superior Insurance paid” Amn Hill.

A similar scenario is described in the MCM explanation of

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United States v. Harrow, 06-0474/AF

the offense of an obtaining type larceny: if a person “obtained

the delivery of another’s goods to a person or place designated

by the accused,” the accused is guilty of larceny if the other

elements of the offense are proven. MCM pt. IV, para.

46.c.(1)(b). We reject Appellant’s suggestion that the military

judge’s failure to elicit how Appellant “knew it was her

representation that deceived the insurance company,” or “why her

misrepresentation was an important factor in the insurance

company’s decision to pay,” or “when the $729.65 was paid by the

insurance company to Airman Hill,” alone or together, create any

basis, let alone a substantial basis, in law or fact for

questioning the sufficiency of the plea to this offense. See

United States v. Faircloth, 45 M.J. 172, 174 (C.A.A.F. 1996)

(declining to speculate post-trial on factual matters that might

have been contested at trial in the context of examining whether

a guilty plea was provident).

We similarly reject Appellant’s argument that the motive

for committing this offense -- that Appellant knew she was

supposed to pay Amn Hill for the damage to her car -- sets up a

matter inconsistent with her plea. See, e.g., MCM pt. IV, para.

46.f.(iii)(A) (recognizing that the relevant inquiry is whether

the accused had the requisite intent). Appellant’s suggestion

that her motive in wrongfully obtaining the insurance money

somehow places the facts of this case within the framework of a

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United States v. Harrow, 06-0474/AF

“debt or the amount thereof is not the proper subject of a

larceny,” United States v. Mervine, 26 M.J. 482, 483-84 (C.M.A.

1988), is without merit.

E. Unauthorized Reduction in Pay Grade

At trial, Appellant pled guilty to being absent without

leave for four days. The Court of Criminal Appeals held that

her plea on this charge was improvident. Harrow, 62 M.J. at

662. After determining the plea was improvident the Court of

Criminal Appeals reassessed Appellant’s sentence to a

dishonorable discharge, twenty-four years and six months of

confinement, forfeiture of all pay and allowances, and reduction

to the grade of E-1. Because no reduction to E-1 was adjudged

at trial, Appellant argues that this was an unlawful increase in

her sentence.

We review a sentence reassessment by a Court of Criminal

Appeals for obvious miscarriages of justice or abuses of

discretion. United States v. Buber, 62 M.J. 476, 478 (C.A.A.F.

2006). The Government concedes that it was error to reassess

the sentence to include a reduction to E-1 when such reduction

was not adjudged at trial. At trial, Appellant was already an

E-1.

This abuse of discretion appears, however, to be an error

without any practical import, let alone, any prejudice. And

Appellant identifies none. This is not surprising. No logic

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United States v. Harrow, 06-0474/AF

suggests that the Court of Criminal Appeals would have decreased

some other portion of the sentence assessment if it understood

that another portion of the sentence, the reduction in rank, was

not available to it.

Thus, while we agree that the lower court abused its

discretion in assessing a reduction to E-1 that was not adjudged

at trial, where Appellant was already an E-1, it is an increase

in punishment only in the most technical of senses, since the

reduction was void ab initio, and a nullity. We decline to

remand the case for a sentence reassessment under these

particular facts, for correction of an error that has not had,

and never could have, any negative effect upon Appellant.

Rather, we set aside that portion of the Court of Criminal

Appeals decision purporting to affirm reduction to E-1.

F. Post-trial and Appellate Delay

The final issue is whether Appellant was deprived of her

right to due process by the 1,467 days that elapsed between her

trial and completion of appellate review. Of that delay, 826

days was time between when the final briefs were submitted to

the Court of Criminal Appeals and the issuance of its decision.

Appellant contends she was prejudiced because, due to the

appellate delay, her lead appellate counsel was unable to argue

her case.

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United States v. Harrow, 06-0474/AF

In this case, the overall delay of 1,467 days between the

trial and completion of review at the Court of Criminal Appeals

is facially unreasonable. Because we conclude that the delay is

facially unreasonable, we examine the four factors set forth in

Barker v. Wingo, 407 U.S. 514, 530 (1972): (1) the length of

the delay; (2) the reasons for the delay; (3) the appellant’s

assertion of the right to timely review and appeal; and (4)

prejudice. United States v. Moreno, 63 M.J. 129, 135-36

(C.A.A.F. 2006). We need not engage in a separate analysis of

each factor where we can assume error and proceed directly to

the conclusion that any error was harmless beyond a reasonable

doubt. See United States v. Allison, 63 M.J. 365, 370 (C.A.A.F.

2006). This approach is appropriate in Appellant’s case.

Having considered the totality of the circumstances and

entire record, we conclude that any denial of Appellant’s right

to speedy post-trial review and appeal was harmless beyond a

reasonable doubt and that no relief is warranted.

IV. CONCLUSION

In evaluating Appellant’s assignments of error we have

considered not only the impact of each individual error, but

also any cumulative prejudice that could have arisen from a

combination or errors. See Banks, 36 M.J. at 170-71. We

conclude that neither individually nor in combination was

Appellant prejudiced by the errors in this case. The decision

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United States v. Harrow, 06-0474/AF

of the United States Air Force Court of Criminal Appeals, except

for that portion purporting to affirm a reduction to E-1, is

affirmed.

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EFFRON, Chief Judge (concurring in part and in the result):

I concur in the majority opinion, subject to the following

with respect to Issues I and III: While I have reservations

both as to the adequacy of the opportunity to impeach Antonio

Jackson and as to the admissibility of Appellant’s prior acts of

misconduct, I agree with the majority that any errors in regard

to those matters were harmless in view of Appellant’s pretrial

statements and the other evidence in the case.