United States v. Sergeant First Class FLOYD C. GUYTON, JR. ( 2020 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
BURTON, RODRIGUEZ, and FLEMING
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant First Class FLOYD C. GUYTON, JR.
United States Army, Appellant
ARMY 20180103
Headquarters, Ist Special Forces Command (Airborne)
Christopher E. Martin, Military Judge
Lieutenant Colonel Scott T. Ayers, Staff Judge Advocate (pretrial)
Lieutenant Colonel Sean G. Gysen, Staff Judge Advocate (post-trial)
For Appellant: Captain Rachele A. Adkins, JA; William E. Cassara, Esquire (on
brief and reply brief).
For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H.
Williams, JA; Major Craig J. Schapira, JA; Captain Brian D. Jones, JA (on brief).
16 December 2020
This opinion is issued as an unpublished epinien and, as such, does not serve as precedent.
FLEMING, Judge:
Appellant claims the military judge erred in his rulings regarding the
composition of the panel members; the military judge abused his discretion in
denying admission of the victim’s letter to appellant; and the military judge abused
his discretion in granting the admission of an excerpt from appellant’s video
interview with law enforcement. As we explain below, we find none of these claims
merit relief. However, we find the government’s unexplained dilatory post-trial
GUYTON—ARMY 20180103
processing of appellant’s case warrants reducing his sentence to confinement by four
months.!
Appellant’s case is before this court for review pursuant to Article 66,
Uniform Code of Military Justice [UCMJ]. An enlisted panel sitting as a general
court-martial convicted appellant, contrary to his pleas, of one specification of rape
for inserting his finger into his wife’s anus, and one specification of larceny of
military property, valued under five hundred dollars, in violation of Articles 120 and
121, UCMJ, 10 U.S.C. §§ 920, 921. The convening authority approved the adjudged
sentence of a dishonorable discharge, two years of confinement, reduction to E-1,
total forfeiture of pay and allowances, and a reprimand.”
' We gave full and fair consideration to appellant’s three other assigned errors and
find they merit neither discussion nor relief.
* Although not specifically raised, we note the military judge failed to instruct the
members on the definition of “military property,” under Article 121, UCMJ. See
Manual for Courts-Martial, United States (2012 ed.) [MCM], Part IV, | 46c(1){h);
see also Dep’t of Army, Pam. 27-9, Legal Services: Military Judges’ Benchbook,
3-46-1(d) (10 Sep. 2014) [Benchbook] (“‘Military property’ is real or personal
property owned, held, or used by one of the armed forces of the United States which
either has a uniquely military nature or is used by an armed force in furtherance of
its mission.”). Under Article 121, UCMJ, military property is not an element of the
offense, but is rather a sentence escalator. See United States v. Smith, 49 M.J. 269,
270 (C.A.A.F. 1998). The maximum period of confinement for larceny of military
property of a value of five hundred dollars or less is one year. MCM, Part IV, J
46e(1)(a). Whereas, the maximum period of confinement for theft of other than
military property of a value of five hundred dollars or less is six months. Id. at J
46e(1)(b). Appellant was convicted of stealing “approximately [five hundred fifty]
rounds of [nine millimeter] ammunition, Lot Number WMA 14E052-001, military
property, of a value under [five hundred dollars], the property of the United States
Army.” Under these circumstances, we will not affirm appellant’s conviction of
larceny of “military property,” valued under five hundred dollars, but will affirm the
lesser-included offense of larceny of “non-military property,” of a value under five
hundred dollars. We are satisfied beyond a reasonable doubt the property appellant
was convicted of stealing was owned by and taken from the United States Army. A
difference of six months confinement exists between the two offenses. Appellant’s
penalty landscape does not change because the maximum sentence for appellant’s
conviction of rape, which is confinement for life without the possibility of parole,
remains. In accordance with the principles of United States v. Sales, 22 M.J. 305,
308 (C.M.A. 1986), and United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F.
(continued .. .)
GUYTON—ARMY 20180103
BACKGROUND
Appellant’s Offenses
Appellant and his wife, HG, were married for eighteen years. They discussed
obtaining a divorce several times throughout the marriage. HG finally decided to
divorce appellant around 30 August 2015.
A few days later, on 9 September 2015, appellant and HG had a heated
argument in their garage. HG went into their home to sleep in the first-floor master
bedroom. HG testified appellant inserted his penis into her vagina without her
consent on the bed in the master bedroom. Appellant testified the sexual encounter
was consensual.’
HG, upset with appellant, departed the first-floor master bedroom. HG told
appellant she was going to sleep in their son’s bedroom upstairs, as he was not
sleeping there. HG testified she went upstairs, entered her son’s bedroom, locked
the door, and cried herself to sleep. HG testified she awoke to appellant pinning
down her legs, and he penetrated her anus with his finger. Shortly after, HG called
civilian law enforcement stating appellant raped her. HG went to the emergency
room and was treated by a sexual assault nurse examiner (SANE). The SANE
identified a fissure on HG’s anus that was visible to the naked eye.
Appellant admitted he touched HG’s anus, but testified it occurred during the
alleged consensual sexual activity in the master bedroom. Appellant admitted sexual
activity occurred with HG in their son’s bedroom, but denied touching her anus
while in his son’s bedroom.
Approximately fourteen months later, HG moved to a different state. During
the course of her relocation, she discovered government-owned nine millimeter
ammunition that appellant had previously brought home during the course of their
marriage. She called law enforcement and the ammunition was collected by a
military special agent.
(... continued)
2013), we are confident the panel would have adjudged the same sentence absent the
error noted.
3 Appellant was charged with and acquitted of raping HG in the master bedroom.
GUYTON—ARMY 20180103
Panel Members
During group voir dire, the military judge asked the panel members
whether they “ever had professional dealings” with any government trial
counsel. Two panel members, Lieutenant Colonel (LTC) MB and Command
Sergeant Major (CSM) BV, responded in the affirmative. Their affirmative
responses were later explored by the parties during individual voir dire of both
members.
Lieutenant Colonel MB stated she knew one trial counsel, Captain (CPT)
AP, as she was LTC MB’s “legal advisor.” Lieutenant Colonel MB stated she
could be “unbiased” regarding appellant’s case despite her relationship with
CPT AP. Command Sergeant Major BV stated CPT AP was his unit’s legal
advisor and he had previously received legal advice from her on command
issues. The trial counsel asked CSM BV whether he would “[bJe more receptive
to the arguments and the evidence that [CPT AP] was presenting versus the other
side just solely based on that relationship.” Command Sergeant Major BV
responded “I have been in my current position for about [forty-five] days. So,
although I completely respect, you know, her job and her ability to do her job, I
haven’t built that relationship yet ....” Neither LTC MB nor CSM BV was
challenged for cause by the parties based on their relationship with CPT AP.4
After the parties requested, and the military judge granted one challenge
for cause and two peremptory challenges, a nine-member panel was formed
encompassing LTC MB and CSM BV. The trial then proceeded with opening
statements and the government’s witnesses. It was only revealed after the entire
presentation of the government’s case-in-chief, that LTC MB had made
statements at a command meeting earlier in the week regarding her participation
as a potential member in an upcoming court-martial and CPT AP.
After arriving at the courthouse to testify as a defense witness, Master
Sergeant (MSG) JR, notified defense counsel he had heard LTC MB make
comments at a command team meeting, consisting of ten to twelve people
including CSM BV, but not CPT AP. Specifically, MSG JR testified he heard
LTC MB state “[s]he was going to wear... either a necklace or a sign that said
that [CPT AP] is my favorite prosecutor,” at an upcoming court-martial.
* Command Sergeant Major BV was challenged for cause by the government on
unrelated issues. The military judge denied the government’s challenge of CSM BV
based on the defense objection to his removal.
GUYTON—ARMY 20180103
A brief individual voir dire of LTC MB ensued in which she confirmed “I
did say something like that,” but “I was joking... . [I] was teasing. I didn’t
mean it... .” Lieutenant Colonel MB was then dismissed and returned to the
panel member deliberation room. The military judge did not advise LTC MB not
to discuss with the other panel members the reason she was called for individual
voir dire in the middle of trial.
Next, CSM BV was called for individual voir dire regarding LTC MB’s
comments. The following exchange occurred:
Q. What was your perception of [LTC MB’s] statement or
the context of that statement being made?
A. At about that time ... 1 made a comment that we
needed to go. That was my reaction to the comment.
Q. And why did you make that comment?
A. It was a - - I think she meant it as a joke... . [BJut I
had a feeling that it wouldn’t be perceived as a joke.
Q. And did that comment affect your perception of [CPT
AP]?
A. No....
Defense counsel then challenged LTC MB for cause, but did not challenge
CSM BV. The military judge granted the challenge against LTC MB “[o]n, at
least, the basis of implied bias.” The military judge also considered sua sponte,
even in the absence of a defense challenge, whether CSM BV should remain as a
panel member. In deciding to allow CSM BV to remain, the military judge
noted CSM BV acknowledged hearing her comment, he took action to leave the
meeting, and “[m]ost importantly, he clearly stated that that statement has had
no impact on his view of [CPT AP.]”
The parties then requested additional individual voir dire of both members
to determine if they further discussed the comment with each other or the other
panel members. Lieutenant Colonel MB said the only other discussion about the
comment had just occurred because the other panel members asked her why she
had been “pulled in here by myself.” She reiterated that her comment was
“flippant;” it was “[o]bviously in bad taste;” “I should not have said that;” and
“T was just teasing.” Command Sergeant Major BV testified LTC MB told the
other panel members “[h]ow embarrassed she was and she was just making a
joke and, you know, she didn’t expect that this, sort of, thing would’ve occurred
from a comment that she had made earlier in the week.”
In light of all panel members being informed of LTC MB’s comments,
the military judge then conducted individual voir dire of all the members. Each
member stated nothing regarding LTC MB’s comments made them more
GUYTON—ARMY 20180103
favorably inclined toward the government or less favorably inclined toward the
defense. The military judge instructed all panel members to disregard LTC
MB’s comment, and all members agreed to do so. The defense then made a
motion for a mistrial because of the alleged implied bias of the entire panel, but
did not expressly challenge any particular member for cause.
In denying the defense mistrial motion, the military judge found “[t]here’s
no indication those comments have any impact on any member of the panel that
remains,” and “[e]ach of them credibly and openly [stated they were] willing to
commit to the fact that this will not impact them in any way.” Later in the trial,
the military judge reiterated that he found “[n]o reason to find any bias of any
panel member that currently sits implied or otherwise.” (emphasis added).
2014 Valentine’s Day Letter
The military judge did not admit a defense exhibit containing a two-page
hand-written letter drafted by HG on Valentine’s Day 2014. The letter is best
described as a roller coaster of varied thoughts and emotions regarding HG’s entire
relationship with appellant. During cross-examination, defense counsel began to
question HG about the letter. The government objected to the questions on hearsay
grounds. The defense asserted the letter contained HG’s state of mind as to the
marriage at the time of the letter’s making. The military judge then allowed the
defense to continue cross-examination regarding the letter.
Eventually, the defense counsel moved to admit the letter into evidence. The
government objected stating “[i]t’s an out-of-court statement... being offered for
the truth of the matter.” Defense counsel responded the letter showed “[HG’s] state
of mind.” The military judge ruled to exclude the letter’s admission into evidence as
cumulative and likely to confuse the issues under Military Rule of Evidence [Mil. R.
Evid.] 403. The defense did not request to admit the letter under Mil. R. Evid.
608(c) or even utter the generic words “bias” or “impeach.”
During the defense’s case-in-chief, appellant attempted to testify about the
letter’s contents. The government again objected to the letter on hearsay grounds.
The defense reiterated, “[w]e are offering [the letter] to demonstrate the state of
mind of [HG] at the time when she wrote this letter [as] to the state of their
marriage.” The military judge again sustained the government objection to the letter
under Mil. R. Evid. 403. The military judge ruled the probative value of the letter
was low stating, “[a]lthough portions of [the letter] may be relevant to [HG’s] state
of mind... it’s [not] close enough in place and time to be relevant in terms of
admitting the letter itself.” Again, the defense did not attempt to admit the letter
under Mil. R. Evid. 608(c), or even utter the generic words “bias” or “impeach.”
GUYTON—ARMY 20180103
Video of Appellant's Law Enforcement Interview
On the same day appellant raped his wife, appellant conducted an approximate
ninety-minute video-recorded interview with Detective JB from a local civilian law
enforcement agency. At trial, the government moved to admit an approximate
fifteen to twenty second clip of the video, marked as Prosecution Exhibit (PE) 28.
This excerpt consists of Detective JB telling appellant that HG “mentioned
something about anal,” and appellant responding “I dabble down there,” while
pointing to his index finger. The defense then asked the military judge to admit the
entire interview.
The military judge advised that the defense could introduce the entire
interview if the video was redacted to exclude inadmissible references to a
polygraph examination. The military judge allowed the government to admit PE 28,
stating “[I] don’t want to take an hour and half or whatever recess to do that now...
. [a]Jnd Defense, you basically have until whenever you rest, up until that time, to
ensure the statement is appropriately edited and available to introduce if you wish to
do that. And obviously, any reference to the polygraph needs to be excerpted [sic]
as well as anything that’s not relevant.” Despite the military judge’s ruling, the
defense did not attempt to introduce a redacted video.
Appellant’s Post-Trial Delay
After the adjournment of appellant’s trial, the government took over thirteen
months to authenticate the record of trial. Appellant’s trial defense counsel
submitted six written requests for speedy post-trial processing within this period.
The addendum to the Staff Judge Advocate’s Recommendation (SJAR)
acknowledged the “post-trial processing was excessive,” “violated the Moreno
timeline,” and under the circumstances, “clemency may be appropriate.”
LAW AND DISCUSSION
A. Panel Members
Appellant’s challenge to the panel composition is three-fold. First,
appellant challenges the military judge’s failure to sua sponte excuse CSM BV
for implied bias due to his presence at the command meeting when LTC MB
commented on CPT AP. Second, appellant claims the military judge should
have excused CSM BV when the the defense requested a mistrial due to LTC
MB telling all the panel members, including CSM BV, about her comment.
Third, appellant asserts the military judge abused his discretion in not granting a
GUYTON—ARMY 20180103
mistrial because the entire panel knew about LTC MB’s comment regarding CPT
AP.°> We disagree and find no abuse of discretion.
Appellant’s challenges to the panel composition all claim implied bias.
Appellant argues the military judge applied the wrong standard in considering
the issue of implied bias. Specifically, appellant asserts the military judge
“applied the test for actual bias, focusing not on public perception, but on the
actual impact on the panel members.” We disagree. Implied bias was the focus
of LTC MB’s excusal. The defense argued LTC MB’s comment created an
appearance to the “objective onlooker” that she was no longer a fair and
impartial panel member. The military judge agreed and explicitly stated that he
was excusing LTC MB for implied bias. See United States v. Erickson, 65 M.J.
221, 223 (C.A.A.F. 2007) (“Military Judges are presumed to know the law and
to follow it absent clear evidence to the contrary.”) (citation omitted).
Even if the military judge applied the wrong standard, we find under our
de novo review that the record does not support a finding of implied bias.
1. Command Sergeant Major BV
Turning first to CSM BV, we note a military judge may sua sponte, “in
the interest of justice,” excuse a member against whom a challenge for cause
would lie, even if neither party has raised such a challenge. Rule for Courts-
Martial [R.C.M.] 912(f)(4); United States v. Strand, 59 M.J. 455, 458 (C.A.A.F.
2004). However, the military judge’s decision to exercise his sua sponte
authority to excuse a panel member is discretionary, and he has no duty to do so.
See United States v. Akbar, 74 M.J. 364, 395 (C.A.A.F. 2015) (citing United
States v. McFadden, 74 M.J. 87, 90 (C.A.A.F. 2015)).
Rule for Courts-Martial 912 (f)(1)(N) states “[a] member shall be excused
for cause whenever it appears that the member . . . [sjhould not sit as a member
in the interest of having the court-martial free from substantial doubt as to
legality, fairness, and impartiality.” This rule encompasses both actual and
implied bias. Strand, 59 M.J. at 458. “Implied bias is an objective test, ‘viewed
through the eyes of the public, focusing on the appearance of fairness.”°” United
States v. Clay, 64 M.J. 274, 276 (C.A.A.F. 2007) (citing United States v. Rome,
47 M.J. 467, 469 (C.A.A.F. 1998)). A court reviews the totality of the
circumstances to determine if “most people in the same position would be
> We address appellant’s argument the military judge erred in denying defense’s
motion for a mistrial jointly with appellant’s argument CSM BY should have been
removed once defense motioned for a mistrial.
GUYTON—ARMY 20180103
[biased].” Strand, 59 M.J. at 459 (quoting United States v. Napolitano, 53 M.J.
162, 167 (C.A.A.F. 2000)). A military judge’s rulings on implied bias
challenges for cause are “reviewed under a standard less deferential than abuse
of discretion, but more deferential than de novo.” United States v. Woods, 74
M.J. 238, 243 (C.A.A.F. 2015) (quoting United States v. Downing, 56 M.J. 419,
422 (C.A.A.F. 2002))}. As stated above, we conduct a de novo review of the
military judge’s implied bias rulings in appellant’s case.
The crux of appellant’s argument regarding CSM BV is that he was not
forthcoming when questioned by the military judge regarding LTC MB’s
comment about CPT AP. We disagree. The exchange between the military
judge and CSM BV went as follows:
Q. Do you recall attending a... commander’s huddle on
Monday?
A. We went to the battalion headquarters. Yes....
Q. Do you recall if [LTC MB] was at that meeting?
A. She was....
Q. Do you recall any comments made by her in reference
to this trial?
A. Other that the fact that we were not excused [?]
Q. Do you recall any comments she may have made about
[CPT AP]?
A. I think she said something to the effect of, she thought
she would be excused based on the government’s attorney.
Q. Do you recall any comment by [LTC MB]... to the
effect of I will wear a sign around my neck saying that
[CPT AP] is my favorite prosecutor?
A. Yes....
Appellant faults CSM BV for not immediately referencing LTC MB’s
comment about CPT AP in response to the military judge’s question whether “[CSM
BV] recall[ed] any comments made by [LTC MB] in reference to the trial.” We find
that is a mischaracterization of the record. The military judge initially asked a very
broad question about any comments LTC MB made at the meeting. We are not
surprised CSM BV was not able to perceive precisely what information the military
judge was seeking. However, the military judge asked very specific follow-up
questions regarding LTC MB’s comment about CPT AP. To those questions, CSM
BV candidly and completely responded to the military judge regarding his
recollection of LTC MB’s comment. We note that no party at trial, including the
defense, mentioned any concern regarding CSM BV’s credibility. The defense did
not object to the military judge’s findings of fact that CSM BV acknowledged
hearing the comment; he took immediate action; and he stated the comment would
GUYTON—ARMY 20180103
not impact his view of CPT AP. Thus, we do not find the record supports a finding
that CSM BV lacked candor.
In sum, CSM BV unequivocally stated LTC MB’s comment did not impact
his view of CPT AP. Also, the defense expressly stated it did not want to
challenge CSM BV at that point. Under these circumstances, we find an
objective member of the public would not question CSM BV’s impartiality.
Thus, the military judge did not abuse his discretion in not taking the “drastic
action” of sua sponte excusing CSM BV. United States v. Velez, 48 M.J. 220,
226 (C.A.A.F. 1998).
2. Motion for Mistrial
Next, we turn to appellant’s claim the military judge should have granted
the defense’s motion for a mistrial because the entire panel was impliedly biased
due to LTC MB’s comment. We also address appellant’s renewed argument that
the military judge should have removed CSM BY after the defense moved for a
mistrial. We review a military judge’s decision to deny a request for mistrial for
an abuse of discretion. United States v. Harris, 51 M.J. 191, 196 (C.A.A.F.
1999). A mistrial is “a drastic remedy which should be used only when
necessary to prevent a miscarriage of justice.” Jd. at 196.
As an initial matter, we agree with LTC MB that her comment was in “bad
taste” and she should not have said it. However, LTC MB was excused from the
panel and all that remains to be determined is whether her comment injected
implied bias into the rest of the panel. For several reasons, we determine it did
not.
First, as the military judge noted, LTC MB’s comments “were not made
about [appellant] or even about [appellant’s] case in particular.” Lieutenant
Colonel MB’s comment did not indicate that she had already formed an opinion
about appellant’s case. Although LTC MB’s excusal was certainly warranted,
her comment was not so prejudicial that an objective member of the public
would view it as tainting the entire panel.
Second, the context of LTC MB’s comment is important. With the
exception of CSM BY, the panel members heard the comment in the context of
her explaining why she had been called individually into the courtroom. In
other words, LTC MB did not make the comment to the panel members to
influence their opinion. She was merely recounting what had just transpired.
See Smith v. Phillips, 455 U.S. 209, 317 (1982) (“Due process does not require a
new trial every time a juror has been placed in a potentially compromising
Situation”).
10
GUYTON—ARMY 20180103
Most importantly, the military judge conducted individual voir dire of
every member. Each member, including CSM BV, using their own words, tone,
and demeanor, indicated that LTC MB’s comment did not impact their view of
CPT AP. See Downing, 56 M.J. at 422 (C.A.A.F. 2002) (a military judge’s
“[oJobservations[s] of the members’ demeanor may inform judgments about
implied bias”). Each panel member, including CSM BV, agreed to disregard
LTC MB’s comment. See United States v. Hornback, 73 M.J. 155, 161
(C.A.A.F. 2014) (“[a]bsent evidence to the contrary, court members are
presumed to comply with the military judge’s instructions”). We note the
defense never challenged the military judge’s findings regarding each member’s
lack of actual bias. See United States v. Youngblood, 47 M.J 338, 341 (C.A.A.F.
1997) (a member’s unequivocal statement of a lack of bias can carry weight
when considering the application of implied bias); see also United States v.
Warden, 51 M.J. 78, 81-82 (C.A.A.F. 1999) (noting “when there is no actual
bias, implied bias should be invoked rarely”).
After conducting a de novo review of the totality of the circumstances of
appellant’s case, we find a reasonable member of the public, sitting in the
courtroom and hearing the members’ responses, would not harbor a substantial
doubt as to the fairness of appellant’s court-martial. See Strand, 59 M.J. at 459-
60. Furthermore, we do not view appellant’s trial as one of the “extraordinary”
cases necessitating a mistrial to prevent a miscarriage of justice. United States
v. Ashby, 68 M.J. 108, 122 (C.A.A.F. 2009). The military judge’s remedial
measures obviated the need for a mistrial. We recognize the military judge
maintained control over the proceedings. The military judge took corrective
action by conducting individual voir dire of the entire panel and gave proper
curative instructions to each member to disregard LTC MB’s comment. See
Harris, 51 M.J. 191, 197. Accordingly, a mistrial was not an appropriate
remedy.
B. 2014 Valentine’s Day Letter
Appellant claims the military judge abused his discretion in refusing to admit
HG’s 2014 Valentine’s Day letter to appellant. Appellant argues this letter
demonstrated HG’s “state of mind reflecting bias against appellant and [HG’s] plan
to destroy the relationship if if did not improve.” We conclude the military judge
did not abuse his discretion in refusing to admit the letter.
“A military judge’s decision to admit or exclude evidence is reviewed for an
abuse of discretion. An abuse of discretion occurs when a military judge
erroneously applies the law or clearly errs in making his or her findings of fact.”
United States v. Bowen, 76 M.J. 83, 87 (C.A.A.F. 2017) (internal citations and
quotation marks omitted).
11
GUYTON—ARMY 20180103
Hearsay is generally inadmissible. Mil. R. Evid. 802. Military Rule of
Evidence 801(c) defines hearsay as a statement, other than the one made by the
declarant while testifying at trial, offered in evidence to prove the truth of the matter
asserted. A statement that is not offered to prove the truth of the statement’s content
is not hearsay and is not prohibited by the rule against hearsay. The prohibition on
hearsay is also subject to many exceptions. See Mil. R. Evid. 801(d), 802, 803, 804,
807.
In relevant part, Mil R. Evid. 803(3) makes an exception to the rule against
hearsay for the following:
A statement of the declarant’s then-existing state of mind
(such as motive, intent, or plan) or emotional, sensory, or
physical condition (such as mental feeling, pain, or bodily
health), but not including a statement of memory or belief
to prove the fact remembered or believed unless it relates
to the validity or terms of the declarant’s will.
Although hearsay may fall under an exception, like all evidence, it is subject
to the balancing test of Mil. R. Evid. 403.° A military judge enjoys “wide discretion
in applying Mil. R. Evid. 403. United States v. Sullivan, 42 M.J. 360, 363 (C.A.A.F.
1995}. “Ordinarily, appellate courts exercise great restraint in reviewing a judge’s
decisions under [Mil. R. Evid. 403].” United States v. Harris, 46 M.J. 221, 225
(1997) {internal citation and quotation marks omitted). When a military judge
articulates his properly conducted Mil. R. Evid. 403 balancing test on the record, the
decision will not be overturned absent a clear abuse of discretion. United States v.
Solomon, 72 M.J. 176, 180 (C.A.A.F. 2013) (citing United States v. Manns, 54 M.J.
164, 166 (C.A.A.F. 2000)).
We have closely reviewed the two-page letter, handwritten in purple pen, on
Valentine’s Day 2014, over five hundred and seventy days before appellant anally
raped HG on 10 September 2015. The letter starts by discussing the beginning of
the relationship, then seventeen years prior, and transitions to the relationship’s
alleged outcome as being, in HG’s mind, like a “Garth Brooks’” song.’ One section
°“The military judge may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the members, undue delay, wasting time,
or needlessly presenting cumulative evidence.” Mil. R. Evid. 403.
7 From approximately 1989 through 1992, Garth Brooks produced several number
one songs and the best-selling country album up to that time. See Bill C. Malone &
Tracy E. W. Laird, Country Music 501 (The University of Texas Press 2018). “[Bly
(continued...)
12
GUYTON—ARMY 20180103
of the letter discusses their relationship dissolving and HG’s knowledge that
appellant was “gone over [two] years ago [in 2012],” and “[i]t’s for the best to let go
because [appellant’s] path no longer includes [HG].” Later in the letter, HG
contemplates the possibility of reconciliation stating, “[HG] will continue to hope
that as [appellant’s] time here draws to a close, that [appellant] will change [his]
direction and realize [he] can’t live without [HG].” The letter is signed: “Happy
Valentine’s Day,” then has a drawn heart shape, Love, [HG], and finally ends with a
drawn smiley face.
Under the letter’s Merry-Go-Round backdrop of relationship highs, lows, and
possible outcomes, the defense argues it was error for the military judge to not admit
the entirety of the letter. Now on appeal, defense asserts the section below indicates
HG’s bias and motive to fabricate false allegations of rape against her husband:
I have to break that hope [of being together and] throw it
away. [I told you that’s what I do when I need to throw
something away that I’m having a hard time doing so with.
I break the hell out of it so it is no longer useful. I know
that I need to throw away my hope [and] | can’t make it
break, so we need to find a solution. I love you [and]
because of that I don’t want to do what I know what I will
do if I continue to see you every day and hold onto that
empty hope. I will destroy any relationship we have so
that I don’t have to hope anymore that it will be better.
First, we discuss the admission of the entirety of the letter under the theory
asserted by defense at trial—that it constituted a present sense impression and
qualified as a hearsay exception under Mil. R. Evid. 803(3). The military judge
found “some parts but not all parts” of the letter discussed HG’s state of mind.
Much of the letter does not contain HG’s present sense impressions but instead
reflects upon the past and contemplates the future. This alone warrants the
preclusion of the entire exhibit as a hearsay exception under Mil. R. Evid. 803(3).
The military judge did not abuse his discretion excluding the entirety of the letter.’
{. . . continued)
1996, Brooks’ accomplishment of over sixty million album sales had been surpassed
only by the Beatles and Billy Joel, but he had achieved his spectacular figure more
rapidly than any other artist in any field of music.” Jd. at 502.
® We recognize Mil. R. Evid. 613(b) as a possible alternate theory to admit the letter,
but it was not explored by defense. Military Rule of Evidence 613(b) permits
“[e]xtrinsic evidence of a witness’ prior inconsistent statement... if the witness is
given an opportunity to explain or deny the statement and an adverse party is given
{continued .. .)
13
GUYTON—ARMY 20180103
Further, the defense counsel did not seek to redact the letter to encompass only the
present sense impressions contained therein.
Although we find the military judge did not abuse his discretion in precluding
the admission of the entire letter under Mil. R. Evid. 803(3), we further discuss his
ruling to preclude its admission under Mil R. Evid. 403 because the letter was
cumulative, likely to ‘confuse the issues,” and possessed low, if any, probative
value due to the time difference between its making and when HG reported the rape.
See United States v. Mann, 54 M.J. 164, 166 (C.A.A.F. 2000) (holding “[w]hen a
military judge conducts a proper balancing test under Mil. R. Evid. 403, the
evidentiary ruling will not be overturned unless there is a ‘clear abuse of
discretion’”).
The defense sought the substantive admission of the entire letter. In other
words, the defense requested the contents of the letter to be considered for the truth
of the matter asserted. But, what was the substantive meaning of the words the
defense sought to admit? Our plain review of the actual language, and its context
within the four corners of the entire exhibit, does not lead us to agree with the
defense’s alleged theory that HG intended to make future false allegations of rape
against appellant. Our interpretation of HG’s phrases “destroy any relationship” or
“break the hell out of,” more clearly indicate an intent to obtain a divorce.
The defense cross-examined HG regarding her intent and whether she
intended to “destroy” or “break the hell out of” the relationship. She denied wanting
to “break the hell out of” the relationship, but testified that she instead wanted to
break the hope the relationship would continue. HG testified that her state of mind
while writing the letter was the “relationship was broken,” and “[t]he reason I was
leaving and writing ... was because | did not want it to get to the point where |
(. . . continued)
an opportunity to examine the witness about it, or if justice so requires.” Defense’s
proffered reason to admit the letter was to prove the truth of the matter asserted—
that HG was biased and possessed a motive to fabricate. Admission of an extrinsic
exhibit under Mil. R. Evid. 613(b) is not for the truth of the matter asserted but
serves an alternate purpose to show the witnesses’ current in-court testimony is
contradicted by a prior statement. See Benchbook, para. 7-11-1. The rule addresses
a witnesses’ truthfulness in testifying and does not serve to address whether the
prior statement stands for the truth of the asserted matter. See United States v.
Palmer, 55 MJ 205, 208 (C.A.A.F. 2001) (holding if defense counsel have more than
one theory of admissibility, it is “incumbent on him to alert the military judge on
[all] theories... .”).
3?
14
GUYTON—ARMY 20180103
would do something to ruin any chance of us ever being able to be friends or
anything of that matter.”
Any possible generic bias or motive to fabricate HG may have had against
appellant because the relationship was broken and a divorce loomed was clearly
established by the defense’s cross-examination. The more specific defense assertion
that the letter evidenced some higher level of bias and HG’s future intent to make a
false rape allegation nineteen months in the future is, from our review, tenuous, and
overbroad. After, reviewing the actual language, placing it within the context of the
entire letter, and the author’s proffered explanation, which was consistent with the
letter’s generic context, we do not agree with the defense’s wishful interpretation.
Despite the context of the letter and HG’s explanation as to the meaning of
the ambiguous language “destroy any relationship” and “break the hell out of,” we
consider the letter’s probative value. To the extent the language could be
interpreted to support the defense premise that HG did intend to make future false
rape allegations, we, as did the military judge, find any probative value as to HG’s
alleged intent on 14 February 2014, to be far removed from the date of the reported
rape, 10 September 2015.
Even, assuming arguendo, the military judge abused his discretion by
precluding the admission of the entire letter under both Mil. R. Evid. 803(3) and
Mil. R. Evid. 403, the exhibit’s exclusion did not have “a substantial influence on
the findings.” United States v. Frost, 79 M.J. 104, 111 (C.A.A.F. 2019). In
conducting this prejudice analysis, we weighed the following: (1) the strength of the
government’s case; (2) the strength of the defense case; (3) the materiality of the
evidence; and (4) the quality of the evidence in question. United States v. Kohlbek,
78 M.J. 326, 334 (C.A.A.F. 2020) (internal quotation marks and citations omitted).
Our consideration of the Kohlbek factors focuses especially on the low
materiality and quality of the letter. During the cross-examination of HG, the
defense explored and established the evidentiary value of the exhibit as to HG’s bias
and motive to fabricate because the relationship was broken and a divorce loomed.
This allowed the defense to argue to the panel that HG made a false rape allegation.
Both HG and appellant testified to the ebb and flow of their relationship from
February 2014 to September 2015, further diminishing the probative value of the
letter’s content by other relevant and timelier events in between. The defense
argument that the letter somehow evidences a more heightened motive to fabricate a
future rape allegation is dubious. Even if that meaning could have been discerned,
the other non-relevant and confusing portions of the letter, combined with the
significant time lag between the creation of the letter and when HG reported the
15
GUYTON—ARMY 20180103
rape, renders the probative value of admitting the entire letter, if any, extremely
low.’
C. Video Recording of Appellant’s Law Enforcement Interview
Appellant asserts the military judge erred in admitting PE 28, a short segment
of appellant’s video interview with law enforcement, in contravention of the rule of
completeness. At trial, the defense objected to the admission of the video under Mil.
R. Evid. 304(h). Now, for the first time on appeal, appellant asserts his defense
counsel also objected under Mil. R. Evid. 106. We find, after a complete review of
the record, appellant’s defense counsel did not object under Mil. R. Evid. 106.
There are two distinct rules of completeness. United States v. Rodriguez, 56
M.J. 336, 339 (C.A.A.F. 2002). Military Rule of Evidence 106, the general rule of
completeness provides as follows:
? We pause to address appellant’s assertion that his trial defense counsel sought
admission of HG’s letter under Mil. R. Evid. 608(c), which allows “[b]lias, prejudice,
or any motive to misrepresent [to] be shown to impeach the witness either by
examination of the witness or by evidence otherwise adduced.” We conclude the
defense did not offer the letter under this rule. The defense did not specifically
mention Mil. R. Evid. 608(c), or use the generic word “bias” or “impeach” as
grounds for admission. Appellant concedes in his reply brief to this court that his
“defense [counsel] didn’t specifically say [impeach or Mil. R. Evid. 608(c)].”
Appellant asserts his counsel “didn’t need to” because the military judge “should
have been aware” and discerned the defense reason to admit the letter from either the
defense opening statement that HG was a “‘vengeful, spiteful, and angry wife,’” or
from the cross-examination questions the defense posed to HG. We strongly
disagree a military judge’s role includes sua sponte interjecting, based on counsel’s
opening statement and cross examination questions, a rule to admit evidence on
counsel’s behalf, when that counsel specifically, or in this case generically, fails to
assert the rule. We pause to recognize a general theory of relevance is always
necessary, under Mil. R. Evid. 401, for the admission of any evidence. The defense
general theory of relevance, under Mil. R. Evid. 401, that the letter showed HG’s
state of mind as to marriage, does not serve to trigger the more narrow Mil. R. Evid.
608(c). Again, even assuming the defense tangentially raised Mil. R. Evid. 608(c)
as a theory of admissibility, we find the military judge properly excluded the
evidence under Mil, R. Evid. 403. Furthermore, we find any error harmless beyond
a reasonable doubt because the defense was still able to present its theory that HG
fabricated the rape out of revenge and spite. See United States v. Moss, 63 M.J. 233,
239 (C.A.A.F. 2006).
16
GUYTON—ARMY 20180103
If a party introduces ail or part of a writing or recorded
statement, an adverse party may require the introduction,
at that time, of any other part — or any other writing or
recorded statement — that in fairness ought to be
considered at the same time.
Military Rule of Evidence 106 may be invoked by either the prosecution or
the defense. “The primary concern of [Mil. R. Evid. 106] is the order of proof,
permitting an adverse party to compel the introduction of favorable evidence during
the opponent’s case.” See Rodriguez, 56 M.J. at 340 {internal quotation marks and
citation omitted). In other words, “the rule permits one party to require another
party to introduce more evidence than the latter desires, or have the latter’s case
interrupted so that the additional evidence can be introduced.” /d. (internal
quotation marks and citation omitted).
Meanwhile, Mil. R. Evid. 304(h) applies specifically to confessions or
admissions. Pursuant to Mil. R. Evid. 304(h), “[i]f only part of an alleged admission
or confession is introduced against the accused, the defense, by cross-examination or
otherwise, may introduce the remaining portions of the statement.” Our Superior
Court in Rodriguez identified four components of Mil. R. Evid. 304(h), to be
contrasted with Mil. R. Evid. 106:
First, [Mil R. Evid. 304(h)] applies to oral as well as
written statements; [second, the rule] governs the timing
under which applicable evidence may be introduced by the
defense; [third, the rule] permits the defense to introduce
the remainder of a statement to the extent that the
remaining matter is part of the confession or admission or
otherwise is explanatory of or in any way relevant to the
confession or admission, even if such remaining portions
would otherwise constitute inadmissible hearsay; and
[fourth, the rule] requires case-by-case determination as to
whether a series of statements should be treated as part of
the original confession or admission or as a separate
transaction or course of action for purposes of the rule.
56 M.J. at 341-42.
In our review of the record, we conclude the defense sought admission of the
remainder of appellant’s recorded interview under Mil. R. Evid. 304(h), and not Mil.
R. Evid. 106. Our conclusion is based on the following portions of the record
provided below.
Initially, the defense lodged an objection to PE 28 because it contains:
17
GUYTON—ARMY 20180103
[o]ne reference to the anal elements of the case and at
various points during the interview, there is further
discussion of that which is not included in that [fifteen-
second] portion in which Detective [JB] explains to
[appellant] the allegations that were made by [HG] such
as, he says that she described it as if he put his whole fist
up her anus. And there’s discussion about that... . [A]nd
those [portions of the video] are in no way discussed in
the [fifteen-second] segment that [the government] pulled
out [in PE 28]. So it’s just going in and picking and
choosing what [the government] like[s] and what they
don’t like and allow[ing] something to be taken out of
context in the course of a regular conversation.
Within this lengthy argument, the defense never mentioned the rule of
completeness. Based on this failure, the military judge then directly asked the
defense if it was seeking to “admit the entire statement under the rule for
completeness?” (emphasis added). The defense merely responded, “Yes, sir.” The
military judge then ruled the government could admit PE 28 but provided the
defense with the option to introduce the entire video, absent polygraph examination
references, and “anything that’s not relevant... . [t]o whatever matter that [the
defense was] seeking to round out based on that [fifteen-second] admission, if it
were an admission.” (emphasis added).
The military judge’s entire analysis and ruling squarely aligned with Mil. R.
Evid. 304(h). The ruling permitted the defense “by cross-examination or otherwise
[to] introduce the remaining portions of [a] statement” if the government introduced
“only part of an alleged admission” by appellant. (emphasis added) We pause to
highlight the military judge twice stated the word “admissions,” which is found in
Mil. R. Evid. 304(h), but not Mil. R. Evid. 106, and directed the exact resolution
provided solely by Mil. R. Evid. 304(h).
As further indicia that the defense did not raise a Mil. R. Evid. 106 objection,
we note the military judge’s ruling is devoid of any Mil. R. Evid. 106 language or
analysis. Military Rule of Evidence 106 would have required the military judge to
consider whether the defense proposed version of the video needed to be
simultaneously admitted with PE 28. The military judge’s ruling only addressed “if
the edited version [of the video] isn’t ready now,” then the defense has “until the
close of [the defense] case to edit it and present it as necessary.” Even when
presented with the military judge’s very clear ruling that the government could
admit PE 28 without contemporaneously admitting the defense requested portion of
the video, the defense did not invoke Mil. R. Evid. 106. The defense did not inquire
why the military judge failed to provide his analysis under Mil. R. Evid. 106 as to
18
GUYTON—ARMY 20180103
whether “in fairness” the defense exhibit “ought” to be considered at the same time.
In fact, appellant concedes in his brief to this court that the defense “did not
specifically invoke Mil. R. Evid. 106” at any time.
In response to the military judge’s ruling, the defense instead specifically
lodged an objection under Mil. R. Evid. 403 to the proposed exhibit not being
admitted at the same time as PE 28. The defense argued the admission of PE 28 did
not “pass the [Mil. R. Evid. 403] balancing test of being more probative than
prejudicial” in terms of “being presented to the panel without that additional context
provided. Fifteen seconds from that long of a video doesn’t provide enough
information, doesn’t provide enough context for the panel members to understand.”
Although the above excerpts in the record aid our conclusion that the defense
did not raise a Mil. R. Evid. 106 objection, the below portion of the record, to use a
colloquial phrase, is “the nail in the coffin.”
After defense objected under only Mil. R. Evid. 403, the government
responded. For the first time a specific rule of completeness is uttered; that being
Mil. R. Evid. 304(h). The government stated “in terms of the rule of completeness
under [Mil. R. Evid.] 304(h) . . . it says, if only part of [an] alleged admission or
confession is introduced against the accused, the defense by cross-examination or
otherwise may introduce the remaining portion of the statement.” (emphasis added).
The military judge immediately responded stating, “[d]efense, I am going to allow
that.” At that point, the defense was on notice that only Mil. R. Evid. 304(h) was
specifically cited, and it was clear the military judge only analyzed and granted
relief under Mil. R. Evid. 304(h). Again, the defense failed to state its objection
included the rule of completeness under Mil. R. Evid. 106.'° We ask why the
defense would yet again fail to notify the military judge and the government that his
rule of completeness objection was also being asserted under Mil. R. Evid. 106?
'0 In the absence of a defense request, the military judge is not required to decipher
which rule of completeness the defense is invoking. Rodriguez, 56 M.J. at 343.
Even if we assume, arguendo, the defense raised a Mil. R. Evid. 106 objection, the
rule requires any remaining portion of the statement only be admitted at the same
time as the government exhibit, if “in fairness [it] ought to be considered.” Mil. R.
Evid. 106. We find the military judge did not abuse his discretion in failing to rule
that an unredacted, ninety-minute video, containing inadmissible references to a
polygraph examination and other irrelevant information, “ought” to have been
admitted in its entirety “at the same time” “in fairness” to the defense to clarify an
approximate fifteen-second government video clip.
19
GUYTON—ARMY 20180103
Our answer is succinct—the defense was not raising an objection under Mil. R. Evid.
106.
In conclusion, we hold the military judge did not abuse his discretion by
admitting PE 28 because: (1) the defense did not raise a Mil. R. Evid. 106 objection;
and (2) the military judge granted a defense favorable ruling under Mil. R. Evid.
304(h), authorizing the introduction of any relevant portions of the statement, an
option the defense failed to invoke.!!
D. Post-Trial
This court has two distinct responsibilities in addressing post-trial delay.
United States v. Simon, 64 M.J. 205, 207 (C.A.A.F. 2006) (citing Toohey v. United
States, 60 M.J. 100, 103-04 (C.A.A.F. 2004}). First, as a matter of law, this court
reviews whether claims of excessive post-trial delay resulted in a due process
violation. /d. (citing U.S. Const. amend. V; Diaz v. Judge Advocate General of the
Navy, 59 M.J. 34, 38 (C.A.A.F. 2003)). Second, we may grant an appellant relief for
excessive post-trial delay using our broad authority of determining sentence
appropriateness under Article 66, UCMJ. id. (citing United States v. Tardif, 57
M.J. 219, 225 (C.A.A.F. 2002)).
We review de novo whether appellant has been denied his due process right to
a speedy post-trial review. United States v. Moreno, 63 M.J. 129, 135 (C.A.A.F
2006). A presumption of unreasonable post-trial delay exists when the convening
authority fails to take action within one hundred twenty days of completion of trial.
Id, at 142. In Toohey v. United States, our Superior Court adopted the following
four-factor balancing test from Barker v. Wingo, 407 U.S. 514, 530-32 (1972), which
we employ when a presumption of unreasonable post-trial delay exists, to determine
whether the post-trial delay constitutes a due process violation: “(1) length of the
delay; (2) reasons for the delay; (3) the appellant’s assertion of his right to a timely
appeal; and (4) prejudice to the appellant.” 60 M.J. at 102. In assessing the fourth
factor of prejudice, we consider three sub-factors: “(1) prevention of oppressive
'l Having found the military judge did not err, we pause to discuss any alleged
prejudice to appellant from the admission of PE 28. Defense successfully cross-
examined Detective JB by eliciting statements appellant made during the course of
his entire interview. During the defense’s case-in-chief, appellant testified and
provided context for the statements he made to Detective JB in PE 28. Appellant
testified that he touched HG’s anus. Appellant did not argue that the touching did
not occur, but proffered it was either consensual or the defense of mistake of fact as
to consent applied. Under these circumstances, the prejudice to defense, if any, in
the admission of PE 28, without the defense proffered exhibit, was extremely low.
20
GUYTON—ARMY 20180103
incarceration pending appeal; (2) minimization of anxiety and concern of those
convicted awaiting the outcome of their appeals; and (3) limitation of the possibility
that a convicted person’s grounds for appeal, and his or her defenses in case of
reversal and retrial, might be impaired.” Moreno, 63 M.J. at 138-39 (quoting
Rheuark v. Shaw, 628 F.2d 297, 303 n.8 (Sth Cir. 1980)).
At bar, the government concedes the first three Barker factors weigh in
appellant’s favor.'? In analyzing the fourth factor of prejudice, however, we may
find “a due process violation only when, in balancing the other three [Barker]
factors, the delay is so egregious that tolerating it would adversely affect the
public’s perception of the fairness and integrity of the military justice system.”
Toohey, 63 M.J. at 362. Under these facts, we do not find the post-trial delay in
appellant’s case so egregious that he was denied his due process rights under
Moreno.
We do find, however, that this is an appropriate case to exercise our authority
to grant relief under Article 66, UCMJ. See Tardif, 57 M.J. at 224. Having
considered the entire record, the lack of any adequate explanation by the government
as to its inaction, the recommendation in the addendum to the SJAR to grant relief,
and appellant’s six written demands for speedy post-trial review, we find he is
entitled to relief. We reduce appellant’s sentence to confinement by four months.
CONCLUSION
Specification 1 of Charge II, excepting the words “military property,” is
AFFIRMED. The remaining findings of guilty are AFFIRMED.
We affirm only so much of the sentence as provides for a dishonorable
discharge, twenty months of confinement, reduction to E-1, forfeiture of all pay and
allowances, and a reprimand. All rights, privileges, and property, of which appellant
has been deprived by virtue of that portion of the findings and sentence set aside by
this decision are ordered restored. See UCMJ arts. 58b(c) and 75(a).
Senior Judge BURTON and Judge RODRIGUEZ concur.
'2 Of the four hundred eighty-one days of delay from the adjournment of appellant’s
court-martial to convening authority action, the defense received a twenty-day
extension to submit matters pursuant to R.C.M. 1105. There is no adequate
explanation by the government for the lengthy post-trial delay, especially in light of
appellant’s six written demands for speedy post-trial processing.
21
GUYTON—ARMY 20180103
FOR THE COURT:
”
iz
MALCOLM H.S8 IRES,
Clerk of Court
22