United States v. Rappaport

SNYDER, Judge,

with whom HODGSON, Chief Judge, joins (concurring in part and dissenting):

I concur with Parts I through III of the majority opinion. However, for the reasons set forth infra, I disassociate myself *714from Parts IY through VI, and respectfully dissent.

I

The majority holds that the military judge “erred” by allowing the prosecution to call Dr. B and elicit extrinsic evidence of prior usage of marijuana. But did the military judge abuse his broad discretion? I think not. In reviewing issues arising under Mil.R.Evid. 608(b), the test is not whether we would have reached the same result as the trial judge. The proper test is whether the trial judge abused his discretion, and that discretion is very broad. United States v. Pierce, 14 M.J. 738 (A.F. C.M.R.1982); United States v. Corbin, 734 F.2d 643, 675 (11th Cir.1984); United States v. Halbert, 712 F.2d 388 (9th Cir. 1983), cert. denied, — U.S.-, 104 S.Ct. 997, 79 L.Ed.2d 230 (1984). Indeed, it has been held that in order for a trial judge to abuse his discretion while applying Rules 404 and 608, he must act arbitrarily and irrationally. United States v. Smith, 727 F.2d 214 (2d Cir.1984).1

When that test is applied to the instant case, I find it extremely difficult to conclude that the trial judge abused his broad discretion. The majority agrees that the area in question was appropriately inquired into on cross-examination. Thus, it would appear to me that it was for the trial judge to determine whether the rebuttal evidence was relevant solely on a collateral issue or otherwise. Since he made that decision in accord with the state of the evidence at that point in the trial, I believe that his decision was neither arbitrary nor an abuse of discretion. United States v. Corbin and United States v. Halbert, both supra; accord United States v. Ray, 731 F.2d 1361 (9th Cir.1984).

Second, in any event, I do not believe the trial judge erred in allowing Dr. B’s testimony. All one need do is look to the purpose of Rule 608(b) as well as its wording. The purpose of Rule 608(b) is to prevent collateral matters from assuming a prominence at trial out of proportion to their significance. Accordingly, the rule is meant to prevent minitrials on extrinsic evidence which relates wholly to collateral issues which may confuse the factfinders. Carter v. Hewitt, 617 F.2d 961, 970-971 (3d Cir.1980). The collateral matter which the rule is aimed directly at precluding is evidence offered solely to impeach a witness’ credibility, i.e., to show the witness has a propensity to lie. United States v. Bosley, 615 F.2d 1274 (9th Cir.1980); see United States v. Russell, 717 F.2d 518 (11th Cir. 1983). However, where the evidence is proferred to contradict a witness’ testimony on a material issue, it is admissible notwithstanding Rule 608(b). Carson v. Polley, 689 F.2d 562 (5th Cir.1982).

In United States v. Opager, 589 F.2d 799, 803 (5th Cir.1979), the United States Court of Appeals for the Fifth Circuit aptly discussed the issue as follows:2

Similarly, we believe that Rule 608(b) should not stand as a bar to the admission of evidence introduced to contradict, and which the jury might find disproves, a witness’s testimony as to a material issue of the case.
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To exclude under Rule 608(b) ... otherwise relevant evidence, as the government would have us do today, would completely divorce legal proceedings from the truth seeking process.

The Ninth Circuit expressed the same philosophy in United States v. Batts, 558 F.2d *715513, 517-518 (9th Cir.1977), cert, denied, 439 U.S. 859, 99 S.Ct. 178, 58 L.Ed.2d 168 (1978):

We believe that the ultimate purpose of the rules of evidence should not be lost by a rigid, blind application of a single rule of evidence. Individual rules of evidence, in this instance Rule 608(b), should not be read in isolation, when to do so destroys the purpose of ascertaining the truth. This is especially so when a witness directly contradicts the relevant evidence which Rule 608(b) seeks to exclude.
The admittance of rebuttal evidence is subject to the sound discretion of the trial court, [citations omitted] Great deference must be accorded to this discretion and the judgment of the trial court. He was present and able to observe appellant’s manner and demeanor on the stand. Our review of the “cold record” discloses to us that the general tenor of appellant’s direct testimony was a portrayal of one completely naive about drugs. The trial judge was in the best position to evaluate the effect this mispainted picture had on the jury. By admitting the rebuttal evidence, the trial court merely completed the picture as to appellant’s true involvement and knowledge in the drug world and thereby corrected a distorted view of appellant’s testimony.

Simply stated, when the evidence is offered to contradict the witness on a material issue, it is no longer collateral. United States v. DiMatteo, 716 F.2d 1361 (11th Cir.1983); cf. United States v. Russell, supra (proferred testimony excluded as collateral because it related to alleged purpose of meeting between defendant and informant, rather than to the incriminating statements made at the meeting). Such evidence is material even if it flows from cross-examination, so long as the cross-examination relates directly to direct examination as opposed to cross-examination on collateral matters of credibility. See United States v. Pantone, 609 F.2d 675 (3d Cir.1979).

In the instant case, the majority concludes that the clear tenor of the accused’s direct testimony was that except for one brief experiment, he was not a user of marijuana. This portion of the accused’s testimony concerned a core issue of the case — whether he used marijuana as charged. Thus, contradicting him on the matter was not merely raising a collateral issue, and, therefore, Rule 608(b) was not an impenetrable barrier. United States v. Opager and United States v. Batts, both supra; see generally, United States v. Billups, 692 F.2d 320 (4th Cir.1982), cert. denied, — U.S. -, 104 S.Ct. 84, 78 L.Ed.2d 93 (1983); United States v. Babbitt, 683 F.2d 21 (1st Cir.1982). Since the evidence was not collateral, it was clearly admissible under Rule 404(b) as rebuttal to the accused’s near general denial of having used marijuana. United States v. Martazavi, 702 F.2d 526 (5th Cir.1983).

Therefore, I conclude that Dr. B’s testimony was hardly collateral. Consequently, I believe the trial judge was well within his discretion in allowing the testimony.

II

I now turn to the testimony of Mrs. S, which was also admitted as rebuttal evidence. Initially, I repeat the question raised in Part I: Did the military judge abuse his discretion?

The majority concludes that Mrs. S’ testimony is barred as inadmissible character evidence and cites Rule 404(b). It is not Rule 404(b) which excludes character evidence but Rule 404(a). Rules 404(a) and (b) are two separate and distinct rules of evidence. When evidence of other crimes, wrongs, or acts, is relevant on an issue other than character, the evidence is admissible under Rule 404(b) notwithstanding Rule 404(a). It is the military judge who determines whether the evidence is relevant on an issue other than character. Once the military judge so determines, he then strikes the balance required by Rule 403. The military judge’s ruling is reversi*716ble only for a clear abuse of his very broad discretion. United States v. Woodyard, 16 M.J. 715 (A.F.C.M.R.), pet. denied, 17 M.J. 204 (1988); United States v. Williams, 17 M.J. 548 (A.C.M.R.1983), pet. denied, 18 M.J. 432 (1984); United States v. King, 16 M.J. 990, 995 (A.C.M.R.1983).3

In addition to believing that the military judge did not abuse his discretion, I agree with his ruling that Mrs. S’ testimony tended to establish a common plan, design, and modus operandi. Initially, I disagree with the majority’s narrow application of the term “identity.” A not guilty plea places all matters in issue, including identity. United States v. Woodyard, supra. Thus, evidence which tends to prove that the accused did, in fact, commit the charged offense also establishes his identity as the perpetrator. Second, I believe the majority misapplies Rule 404(b) as it relates to evidence of other crimes, etc., which is relevant on the issues of modus operandi, common plan, etc.

The majority is correct in stating that modus operandi evidence must suggest a signature, and by stating that common plan, etc., evidence must naturally suggest that all acts are of the same plan. The majority opinion, however, seems to suggest that the common scheme, etc., must be highly unique or extremely creative in and of itself. If so, such is not the case. The test is whether the accused has used a certain artifice or method in a unique or identifiable way, regardless of how common the artifice or method may be. See generally, United States v. Pisari, 636 F.2d 855, 866-867 (1st Cir.1981).

Applying United States v. Brannan, 18 M.J. 181, 184 (C.M.A.1984), the majority states as follows: “We find that the evidence reveals nothing more than a collection of disparate acts of the appellant having illicit sex and drug abuse in common.” I submit that the majority has applied only one facet of Brannan, and that the evidence in the instant case more than qualified under Rule 404(b). The language which the majority lifts, in part, from Brannan was referring solely to evidence that Brannan was seen with marijuana. However, on the issue of whether other evidence was relevant on modus operandi, the Court said as follows:

Arthur and Yates did [offer testimony relevant on modus operandi ] but some question exists in our mind whether this method of distribution of marihuana is so unusual and distinctive that it is like a signature, [citations omitted] We conclude, at the most, that Arthur’s testimony and a portion of Yates’ testimony met the requirement of Mil.R.Evid. 404(b) for this evidentiary purpose. (Emphasis added)

United States v. Brannan, supra at 184. The method at issue was the accused’s use of a brown paper sack containing plastic baggies of marijuana, and his distributing them out of the sack from a motor vehicle. The use of a paper sack as a marijuana container is hardly a uniquely creative method, but it still qualified — albeit barely. The evidence in the instant case is even stronger.

Mrs. S testified that while seeking professional treatment from the accused in his official capacity, she and the accused engaged in illicit sexual relations. She related that when they had sex, the accused provided marijuana of the sensimilla type and that on occasion he broached the subject of a menage-a-trois. This was the same “technique” testified to by Donna. Although the accused is not the only psychologist to prey upon his female patients, and he is certainly not the only lover with a penchant for menage-a-trois, or to use marijuana as part of his lovemaking script, the evidence does show that to be his technique or signature. Under these circumstances, Mrs. S’ testimony clearly qualified under Rule 404(b). United States v. King, *717supra4; see United States v. Brannan, supra.

Just as a mere incantation of modus operandi, etc., will not establish admissibility, neither will the mere incantation that “it is only to show that the accused is a bad person” dispel admissibility. At any rate, considering the posture of the evidence and the trial judge’s having seen and heard the witnesses, I fail to see an abuse of discretion in allowing the testimony.

Ill

Even if the military judge committed error, I fail to discern the prejudice. The accused testified in surrebuttal and steadfastly denied Dr. B’s and Mrs. S’ allegations. He also related less than favorable matters concerning Dr. B’s and Mrs. S’ character. In all probability, the factfinders based their verdict on his demeanor as much as the prosecution’s evidence. Additionally, the military judge provided proper instruction on the limited purposes for which the evidence was admitted.

I would affirm the ruling of the military judge, the findings of guilty, and the sentence.

. We have stated in earlier decisions that Mil.R. Evid. 608 and 404 are taken verbatim from the Federal Rules of Evidence. United States v. Woodyard, 16 MJ. 715 (A.F.C.M.R.), pet. denied, 17 MJ. 204 (1983). Thus, I shall use Federal as well as military precedent.

. To show predisposition, the prosecution elicited testimony from the informant that while he and the defendant were working together in a beauty salon, the informant observed the defendant use and distribute cocaine. The defense sought to introduce business records from the salon which would have suggested that the informant never worked there, but the trial judge sustained the prosecution’s objection under Rule 608(b). The Court of Appeals held the ruling to be reversible error.

. The majority opinion, apparently implies sub silentio that the trial judge has no discretion whatsoever in applying Mil.R.Evid. 404(b) and 608(b). If so, I submit that such a position is entirely contrary to applicable precedents.

. The evidence of other crimes, etc., at issue here was the testimony of two witnesses that they met the accused psychologist while on duty as medics. On separate occasions some six months apart, each went to the accused’s quarters for counselling. The accused offered each a massage and had sexual intercourse with each one. The Court held the evidence to be relevant in showing a familiar pattern where the accused would prey on and sexually exploit young women using his profession, his rank, and sometimes his military quarters to accomplish that end.