United States v. Private First Class CORLEY Z. BLACK ( 2016 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
HAIGHT, PENLAND, and WEIS 1
Appellate Military Judges
UNITED STATES, Appellee
v.
Private First Class CORLEY Z. BLACK
United States Army, Appellant
ARMY 20140010
Defense Language Institute Foreign Language Center
Douglas K. Watkins, Military Judge
Lieutenant Colonel Tiernan Dolan, Staff Judge Advocate
For Appellant: Colonel Kevin Boyle, JA; Major Yolanda McCray Jones, JA; Captain
Patrick A. Crocker, JA (on brief).
For Appellee: Colonel Mark H. Sydenham, JA; Major A.G. Courie III, JA; Major
Daniel D. Derner, JA; Captain Nathan S. Mammen, JA (on brief).
29 April 2016
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MEMORANDUM OPINION
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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
WEIS, Judge:
A military judge sitting as a general court-martial convicted appellant,
contrary to his plea, of one specification of sexual assault in violation of Article
120(b)(3), Uniform Code of Military Justice, 10 U.S.C. § 920(b)(3) (2012)
[hereinafter UCMJ]. The convening authority approved the adjudged sentence of a
dishonorable discharge and confinement for two years. 2
1
Judge WEIS took final action in this case while on active duty.
2
The military judge credited appellant with three days of pretrial confinement
credit.
BLACK — ARMY 20140010
Appellant’s case is before this court for review pursuant to Article 66, UCMJ.
Of appellant’s two assignments of error, the following merits discussion but not
relief:
THE MILITARY JUDGE ERRED BY OVERRULING
DEFENSE HEARSAY OBJECTIONS BASED ON AN
“OUTCRY” EXCEPTION THAT IS NOT CURRENTLY
RECOGNIZED IN MILITARY LAW.
We conclude the military judge abused his discretion in allowing certain
statements by the victim into evidence, over defense objection, by applying an
“outcry” exception independent of Military Rule of Evidence [hereinafter Mil. R.
Evid.] 801 or 803. 3
However, we further conclude this error was harmless in light of multiple
similar statements of the victim received in evidence pursuant to a Mil. R. Evid.
803(2) “excited utterance” exception to the hearsay rule.
I. FACTS
In the early evening of 1 March 2013, the victim, Specialist (SPC) AL, and
her best friend and roommate, Specialist SR, went to a restaurant/bar to meet with
appellant and his friend, Private First Class (PFC) JJ, prior to a party planned for
that evening. Everyone, with the exception of Specialist SR, consumed alcohol at
the establishment.
Specialist SR, SPC AL, and PFC JJ were aware that appellant had previously
reserved and paid for a nearby hotel room for the planned party. SPC AL was aware
that “several people” had talked about a possible party at the hotel room and that
throughout the evening PFC JJ was “desperately” trying to get others to come to the
hotel room for a party.
Specialist SR, however, had no plans to go to the hotel room party. Around
2300, Specialist SR left the restaurant/bar because she was underage to consume
alcohol and was bored. The appellant, SPC AL, and PFC JJ subsequently left the
restaurant/bar and went to a CVS pharmacy store where SPC AL purchased alcohol
for the planned party. The three proceeded to the hotel room and all consumed more
alcohol. All three still held expectations of others showing up for the party;
however, despite the efforts of all parties involved, no other persons ever appeared
at the hotel room. Upon the suggestion of SPC AL, the three went to a nearby dance
club where they consumed more alcohol. According to PFC JJ, appellant and SPC
3
The matter personally raised by appellant pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982), is without merit.
2
BLACK — ARMY 20140010
AL were “drunk” when they left the dance club. SPC AL was stumbling and needed
assistance getting back to the hotel room.
Appellant and PFC JJ ordered some food through room service. SPC AL felt
sick, thought she might vomit, and fell asleep on a couch before the food arrived.
Appellant and PFC JJ continued to drink after ordering room service; SPC AL did
not consume any alcohol the remainder of the evening. PFC JJ could not wake up
SPC AL when the room service food arrived and he never saw SPC AL awake during
the remainder of the evening. SPC AL was fully clothed and sleeping on the couch,
and appellant was still awake, when PFC JJ eventually fell asleep.
SPC AL testified that she awoke feeling the weight of appellant’s body on
her. Her breasts were exposed and her tights were down around one of her legs. She
fell back asleep. When she awoke a second time, appellant’s penis was inside her.
She tried to push appellant off of her. She then told appellant to stop and he
stopped, pulled up his trousers, and apologized. At that time, PFC JJ had passed out
on the floor. SPC AL kicked PFC JJ but he did not wake up. SPC AL tried to stay
awake but she again fell back asleep.
In the early morning hours, SPC AL awoke and telephoned Specialist SR and
stated that she “had been raped” by appellant. PFC JJ awoke to find SPC AL on the
telephone. SPC AL told PFC JJ that she had awoken with appellant’s “fingers inside
her” and that appellant had “put his penis inside her.” Soon thereafter, someone
arrived to take SPC AL from the hotel to the barracks.
II. LAW
A military judge’s decision to admit or exclude evidence is reviewed under an
abuse of discretion standard. United States v. White, 69 M.J. 236, 239 (C.A.A.F.
2010); United States v. Cucuzzella, 66 M.J. 57, 59 (C.A.A.F. 2008); United States v.
Roberson, 65 M.J. 43, 45 (C.A.A.F. 2007). A military judge abuses his or her
discretion when he or she is incorrect about the applicable law or improperly applies
the law. United States v. Roberts, 59 M.J. 323, 326 (C.A.A.F 2004).
The abuse of discretion standard is a strict one, calling for more than a mere
difference of opinion. The challenged action must be “arbitrary, fanciful, clearly
unreasonable, or clearly erroneous.” White, 69 M.J. at 239 (internal quotation marks
and citation omitted).
If this court finds an abuse of discretion, it then reviews the prejudicial effect
of the ruling de novo. Prejudice from an erroneous evidentiary ruling is evaluated
by weighing “(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.” Roberson, 65 M.J. at 47-48 (quotation marks and
citations omitted).
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BLACK — ARMY 20140010
III. DISCUSSION
A. Statement of Victim to Specialist SR Admitted as “Outcry Evidence”
At trial, Specialist SR testified as to her observations of and interactions with
SPC AL the morning of the incident. Specialist SR testified that SPC AL called her
early that morning “with a shakiness in her voice” and that “she sounded shaken . . .
was crying a little bit, and . . . sounded kind of angry as well.” Specialist SR
testified that SPC AL stated during the telephone conversation that “she had been
raped.” Defense counsel’s hearsay objection to this statement was initially sustained
by the military judge.
Specialist SR next testified that, in response to the telephone conversation,
she waited for SPC AL to come to their barracks room. As a result, trial counsel
argued that the telephonic statement by SPC AL was admissible as an “effect on the
listener” exception to the hearsay rule. Defense counsel renewed the hearsay
objection. The military judge observed that the “effect on the listener [argument] is
extremely weak” but sua sponte concluded that the statement was “admissible as
outcry evidence.”
Specialist SR further testified that, after the telephone conversation, SPC AL
came to their barracks room “crying and shaking,” “angry and scared,” and stated
that she “felt really dirty, and she just wanted to take a bath.” Specialist SR
testified that she sat over SPC AL in the bathtub and “rubbed her head while she just
talked about what happened.” When trial counsel asked Specialist SR what SPC AL
had told her about the night before, defense counsel objected on hearsay grounds:
Q: And what happened next?
A: Um, she just sat in the bathtub and cried. I sat over her, and I
rubbed her head while she just talked about what happened.
Q: And what did she say?
A: She said that she had woken----
DC: Objection.
MJ: Basis?
DC: Hearsay.
MJ: Government?
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BLACK — ARMY 20140010
ATC: It’s continuing under 803(3). It’s an excited utterance in
accordance with the court’s ruling.
MJ: I didn’t rule that it was an excited utterance.
ATC: Admissible under--as outcry.
....
MJ: All right. You want to be heard, Defense?
DC: Well, I don’t believe a proper foundation has been laid if the
government is going to offer under that basis, so I would renew my
objection if asked that.
MJ: Well which basis?
DC: Um, on the excited utterance basis.
ATC: The government withdraws its response as it relates to 803(3).
The record reveals that, after this colloquy between the military judge and
counsel, the witness, Specialist SR, did not answer the question of what SPC AL
stated while in the bathtub. Thus, the sole statement to Specialist SR received in
evidence as “outcry evidence” over defense objection was the telephonic statement
by SPC AL to Specialist SR that “she had been raped.”
B. Statements of Victim to PFC JJ Admitted as “Outcry Evidence”
The Article 32, UCMJ, hearing testimony of PFC JJ, which was read into
evidence, reflects that, the morning of the incident, SPC AL told him that appellant
had “touched her” and that “she was woken up to Black’s fingers inside of her, and
that it was not welcomed . . . .” Defense counsel objected on hearsay grounds. The
military judge overruled the objection by concluding the statements were “proper
outcry evidence.” These were the only statements by SPC AL to PFC JJ received in
evidence as “outcry evidence” over defense objection.
C. “Outcry” Evidence
Appellant urges, as an assignment of error, that the “military judge erred by
allowing numerous hearsay statements into evidence over defense objections by
applying an ‘outcry’ exception independent of Mil. R. Evid. 801 and 803.”
As just outlined, the military judge admitted in evidence the following two
statements of SPC AL, over defense objection, pursuant to an “outcry” exception:
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BLACK — ARMY 20140010
(1) telephonic statement to Specialist SR that she “had been raped”; and (2)
statements to PFC JJ that appellant “had touched her” and that “she had woken up to
[appellant’s] fingers inside her, and that it was not welcomed . . . .”
In so ruling, the record clearly reflects that the military judge described the
“outcry” exception in precisely the terms used in the 1969 revised edition of the
Manual for Courts Martial [hereinafter MCM, 1969]. Paragraph 142c (“Fresh
complaint and lack of fresh complaint”) of the MCM, 1969 provided:
In a prosecution for a sexual offense in which an alleged
victim of either sex has testified that consent was lacking,
evidence that the alleged victim made a complaint of the
offense within a reasonable time after its commission is
admissible for the purpose of corroborating the testimony
of the victim, and this is so whether or not lack of consent
is an element of the offense and even if the credibility of
the victim has not been directly attacked. This evidence is
to be restricted to proof that the complaint, including the
identification of the offender, was made. A description of
the details of the offense given during the course of
making the complaint is not admissible under this rule.
However, a description of the details of the offense related
during the course of making the complaint may be
received in evidence if admissible as evidence of a
consistent statement for the purpose of corroboration
under 153a, or if admissible under the spontaneous
exclamation (142b), or any other, exception to the hearsay
rule.
This “outcry” exception does not appear in the current Manual for Courts-
Martial (i.e., the 2012 edition) or any of its recent updates or amendments. Manual
for Courts-Martial, United States (2012 ed.) [hereinafter MCM, 2012]. However,
defense and government appellate counsel agree that the term “outcry” as explained
by the military judge is synonymous with the description of “fresh complaint” in the
current version of the MCM.
As noted in United States v. Smith, “[A]n express exception for fresh
complaint has been deleted as being unnecessary.” 14 M.J. 845, 846-47 (A.C.M.R.
1982) (quoting Analysis of Military Rule of Evidence 412, 8 M.J. at CLVII).
Nonetheless, “fresh complaint” evidence remains viable in military jurisprudence
under certain circumstances. Evidence of fresh complaint, which is either non-
hearsay under Mil. R. Evid. 801 or fits within an exception to the hearsay rule under
Mil. R. Evid. 803, is relevant and admissible. Smith, 14 M.J. at 847; MCM, 2012,
App. 22, Analysis of the Military Rules of Evidence, A22-36. Specifically, a “fresh
complaint” by a victim of a sexual offense may, depending upon the circumstances,
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BLACK — ARMY 20140010
fall within a hearsay exception such as present sense impression, excited utterance,
or then-existing mental, emotional or physical condition. MCM, 2012, App. 22,
Analysis of the Military Rules of Evidence, A22-55. However, “[r]eference to ‘fresh
complaint’ should be avoided as confusing and unduly restrictive.” Smith, 14 M.J.
at 847 n.1.
In the instant case, we conclude that the military judge abused his discretion
in allowing the statements at issue into evidence, over defense hearsay objection,
through application of an “outcry evidence” exception independent of any analysis
of Mil. R. Evid. 801 or 803. See United States v. Swift, ARMY 20100196, 2016
CCA LEXIS 26, at *7-9 (Army Ct. Crim. App. 21 Jan. 2016) (mem. op.).
D. No Prejudice Established
Having determined an abuse of discretion as to evidentiary rulings by the
military judge, this court next reviews de novo any prejudicial effect of the
erroneous rulings. United States v. Roberson, 65 M.J. 43, 47-48 (C.A.A.F. 2007).
We find no prejudice in that certain similar statements made by SPC AL to PFC JJ
were subsequently properly admitted in evidence by the military judge under an
“excited utterance” hearsay exception and not as “outcry evidence.” Accordingly,
evidence of SPC AL’s outcries were not only cumulative with her in-court account
of what transpired but also with her admissible “excited utterances” regarding the
incident.
Although defense and government appellate counsel both address any
continuing viability of the “outcry exception” in military jurisprudence, neither
acknowledges that certain statements made by SPC AL to PFC JJ were admitted in
evidence, over defense hearsay objection, pursuant to a Mil. R. Evid. 803(2)
“excited utterance” exception to the hearsay rule.
1. Victim Statements to PFC JJ—Excited Utterances
The trial colloquy reveals that several statements made by SPC AL to PFC JJ
initially admitted in evidence by the military judge as “outcry” were later admitted
under an “excited utterance” hearsay exception:
A: [SPC AL] said that [appellant] put his penis in her.
Q: Did she say they had sex?
A. Um, I don’t— I don’t— I know for a fact that she said
that he put his penis in her.
Q: She say that he raped her?
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BLACK — ARMY 20140010
A: Um, I don’t remember. I really don’t remember. That
was at that point, the way that she described the story,
definitely it didn’t need to be said that that’s what she felt
happened.
Q: Describe that for me, I don’t understand.
DC: Again, Your Honor. Same objection, hearsay. I
think it has now gone beyond outcry to specifics of the
outcry statement.
MJ: Government?
ATC: Your Honor, within the response he states the
emotional stress of the event, and that the individual--that
[SPC AL] is under the stress of that event and having an
immediate response to it in her explanation of what was
going on.
MJ: Okay, and that’s relevant to me, how?
ATC: Relevant as to----
MJ: To show her emotional state? Is that what you’re
saying, or for a hearsay exception?
ATC: To establish the emotional state that therefore goes
to--is circumstantial evidence as to----
MJ: As circumstantial evidence that something happened?
ATC: Yes, Your Honor.
MJ: See you’re confusing me because there was a hearsay
objection.
ATC: My apologies, Your Honor. Normally you would
have a foundation prior to the excited utterance, but this--
the line of questioning kind of builds.
MJ: Okay, that’s why--that’s what I’m asking about. If
this is for excited utterance or just circumstantial
evidence of her emotional state to show that something
happened. Two different things.
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ATC: I know they’re two separate things. I’ll answer the
hearsay exception. I believe we have fallen with the
excited utterance, but also the— could serve as a purpose
to both.
MJ: Well, okay. I’ll listen to more to see if we get to a
foundation for excited utterance.
ATC: Yes, Your Honor.
Q: Describe that for me, I don’t understand.
A. Um, the way that she--she kept saying that, um, it was
unwanted and that she didn’t want it and she was very torn
up, she was crying. And but the way--the story itself that
she told, I remember--I don’t remember if she said it or
not, but that was what I--that’s what I thought she was
saying. That’s what I--that’s the story she told, was that
she had been raped by Black. But I don’t know she
actually said that.
MJ: All right. So Defense, probably a better foundation
for an excited utterance, so I’m overruling your objection.
But the witness’ personal knowledge seems to be----
DC: I would agree, Your Honor. It seems to be that he is
assuming stuff based on--not based on his memory.
MJ: Well, assuming some stuff and not sure about his
perceptions perhaps. I guess if that makes you feel better,
that’s how I’m considering it. Government?
ATC: I think, Your Honor----
MJ: I guess what I’m saying, it goes to the weight. But
go ahead, government.
ATC: Yes, Your Honor. As the responses indicated
earlier, that were clear, that “I know that she said he put
his penis into her” and then in his explanation he says that
it’s unwanted. That she’s under the stress of the event,
etc. So those subsequent statements, although he’s
hedging, he was very clear in the beginning. And taking
the testimony in its totality I think the testimony is clear.
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MJ: Well, I just ruled in your favor, Government.
(emphasis added).
Moreover, another trial colloquy reveals that additional statements made by
SPC AL to PFC JJ were admitted in evidence under the “excited utterance”
exception to the hearsay rule and not as “outcry” evidence:
Q: Do you remember how [SPC AL] woke you up?
A: It was, um, it had to be more of a noise that she made.
I don’t know if it was her talking or the door was shut.
Something woke me up and she was active inside the
room.
Q: She didn’t come over and shake you?
A: No.
Q: Just her action in the room was enough to wake you
up?
A: Yes.
Q: And then that’s when she--well, what did she first tell
you?
DC: Objection, hearsay.
MJ: Government?
ATC: This is an excited utterance, Your Honor, in
accordance with prior testimony. Foundation has already
been laid.
MJ: Is this basically the same statement that I already
ruled on?
ATC: Yes, Your Honor.
MJ: Defense, is there any difference here, or are you just
noting your objection for the record?
DC: There’s no difference in the contents, and I am
noting the objection for the record.
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MJ: Overruled.
A: That her--she was going to leave and to watch my
friend Black around women.
Q: And at that point [what] would you take that to mean?
A: Um, I had no idea what that meant at first. I thought
maybe he had, maybe he had said something. I in no way
thought that this would be the issue. I thought maybe he
said something or did something maybe--that maybe kind
of creeped her out or something like that.
Q: So I guess that though she didn’t indicate anything
sexual assault oriented happen[ed] initially, right?
A: No, not with that first statement. No.
Q: What kind of inspired her to go on and make a second
statement?
A: Um, she was really shaken up and I think that I asked
her to explain or asked what he did. And that’s when she
said that he had touched her and she started talking about
that. And at some point she sat down on the bed and told
me that--that he had entered her vagina.
Q: Okay. And I think you said actually that first time she
told you she thought it was fingers?
A: Yes.
Q: Okay, was she clear about that at that point?
A: Um, she said that there was a, um, a big wet spot on
the couch and that--I don’t remember if she said that his
fingers were in her, or had been in her. I don’t remember
how she worded it. And then, but quickly after saying that
she said--she sat down and she told me that she had--she
said,
DC: I’m going to object to that next statement as hearsay.
MJ: Government?
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ATC: This is an ongoing excited utterance, Your Honor.
MJ: Overruled.
A: “That’s not all. He put it in me.” And I asked her
what it was, and she said “his penis.”
Q: Okay, what did you do at that point? I know you said
you were upset.
A: Yeah, I was upset. I was very hazy. I sat up in bed.
I--my first thought was towards her and helping her out. I
was upset at Black. I don’t remember what I said in
regards to Black. I don’t remember really what I said to
offer help to her. All of that is speculation on my part.
But I do remember that I was very concerned for her and
angry at the situation.
(emphasis added).
The statements, admitted in evidence under an “excited utterance” hearsay
exception, are substantially similar, if not the same, statements of SPC AL
erroneously admitted under the “outcry exception.” Appellate defense counsel does
not argue that the military judge erred in applying a Mil. R. Evid. 803(2) “excited
utterance” hearsay exception to the statements. Moreover, we find no abuse of
discretion by the military judge in this regard. Thus, we conclude that any error by
the trial judge in admitting similar statements under the “outcry” exception to be
harmless error.
2. Victim Statement to Specialist SR
Although we find the military judge erred in admitting the telephonic
statement of SPC AL that she “had been raped” in applying an “outcry” exception
independent of an analysis of the Military Rules of Evidence, we conclude such error
was harmless.
SPC AL’s telephonic statement to Specialist SR that she “had been raped”
may have been admissible under alternative viable theories. 4 The statement may
4
See, e.g., United States v. Robinson, 58 M.J. 429, 433 (C.A.A.F. 2003) (“military
judge’s error was harmless, because the military judge reached the correct result,
albeit for the wrong reason”); United States v. Kindle, 45 M.J. 284, 288 (C.A.A.F.
12
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have been admissible under the “excited utterance” exception to the hearsay rule.
Mil. R. Evid. 803(2). The statement may have been admissible as non-hearsay
offered to rebut an express or implied charge of recent fabrication or improper
influence or motive. Mil. R. Evid. 801(d)(1)(B); MCM, 2012, App. 22, Analysis of
the Military Rules of Evidence, A22-53; see also State v. Graham, 815 N.W.2d 293,
302 (S.D. 2012) (assertion in opening statement sufficient to permit admission of
prior consistent statement to rebut a charge of recent fabrication); United States v.
Morgan, 31 M.J. 43, 46 (C.M.A. 1990) (prior consistent statement admissible under
Mil. R. Evid. 801(d)(1)(B) where defense counsel “raised two separate theories
through his cross-examination of mother and child and his argument”).
Additionally, the statement may have been used to evaluate the witness’ credibility,
and not as substantive evidence, following impeachment of the witness. United
States v. Coleman, 72 M.J. 184, 188 (C.A.A.F. 2013); see also United States v.
Simonelli, 237 F.3d 19, 27 (1st Cir. 2001).
However, because the military judge admitted the statement as “outcry”
evidence, the record was not sufficiently developed as to any other possible theories
as to admission of the statement. Thus, we are precluded from determining whether
a sufficient alternative evidentiary foundation could have been established with
respect to admission of the statement. For instance, we cannot conclude whether
SPC AL’s statement to Specialist SR was made “while the declarant was under the
stress of excitement cause by the event” or if the prior consistent statement was
“made before the alleged recent fabrication or improper influence or motive
occurred.” Mil. R. Evid. 803(2); United States v. McCaskey, 30 M.J. 188, 192
(C.M.A. 1990); Mil. R. Evid. 801(d)(1)(B); see also Tome v. United States, 513 U.S.
150 (1995); Morgan, 31 M.J. 46.
Nonetheless, even assuming that SPC AL’s telephonic statement to Specialist
SR was not admissible under any rule or theory, we determine the admission of the
statement was harmless error in that the statement was cumulative with SPC AL’s
in-court detailed testimony and also consistent with the properly admitted “excited
utterances” made by SPC AL to PFC JJ minutes before the telephonic statement to
Specialist SR.
1996) (Gierke, J., concurring) (“[T]he military judge was correct in excluding . . .
testimony as residual hearsay, but he was laboring under an incorrect view of the
law. In short, he ruled correctly for the wrong reasons.”); United States v.
Copeland, 21 C.M.R. 838, 863 (A.F.B.R. 1956) (“However, though the reason for
the ruling was incorrect, the ruling itself was correct. . . . [T]he fact that the
reasoning was wrong is of no consequence, for it is the judicial action and not
judicial reason that determines the correctness of the trial proceedings.”); Robertson
v. State, 829 So. 2d 901, 906-907 (Fla. 2002) (Even though a trial court’s ruling is
based on improper reasoning, the ruling will be upheld if there is any theory or
principal of law in the record which would support the ruling.).
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IV. CONCLUSION
Upon consideration of the entire record, the finding of guilty and the sentence
are AFFIRMED.
Senior Judge HAIGHT and Judge PENLAND concur.
FOR THE
FOR THE COURT:
COURT:
MALCOLM
MALCOLM H. H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of Court
Clerk of Court
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