United States v. Collier , 67 M.J. 347 ( 2009 )


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  •                          UNITED STATES, Appellee
    v.
    Kimberly L. COLLIER,
    Aviation Machinist’s Mate Third Class
    U.S. Navy, Appellant
    No. 08-0495
    Crim. App. No. 200601218
    United States Court of Appeals for the Armed Forces
    Argued December 17, 2008
    Decided May 18, 2009
    RYAN, J., delivered the opinion of the Court, in which EFFRON,
    C.J., and ERDMANN and STUCKY, JJ. joined. BAKER, J., filed a
    separate dissenting opinion.
    Counsel
    For Appellant: Captain Kyle Kilian, USMC (argued); Lieutenant
    W. Scott Stoebner, JAGC, USN (on brief).
    For Appellee: Colonel Louis J. Puleo, USMC (argued); Brian K.
    Keller, Esq. (on brief).
    Military Judges: Michael J. Catanese, Daniel E. O’Toole, and
    Christopher D. Connor
    THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
    United States v. Collier, No. 08-0495/NA
    Judge RYAN delivered the opinion of the Court.
    This case presents the question whether the military judge
    erred in granting the Government’s motion in limine prohibiting
    Appellant’s defense counsel from cross-examining HM2 C, the main
    Government witness, about an alleged homosexual romantic
    relationship between her and Appellant and from introducing any
    evidence of such a relationship.1    While the military judge did
    permit cross-examination about a close friendship, the defense
    that Appellant wanted to present was that HM2 C framed Appellant
    for larceny as a result of their romantic relationship ending
    badly.   Because of this ruling, Appellant was free only to
    assert the motivation of an angry friend rather than a
    disappointed lover; as the Government then argued in its
    closing, the motivation of an angry, vengeful friend “strains
    all logic; it’s just not credible.”
    The military judge’s ruling prevented Appellant’s counsel
    from fully exploring HM2 C’s bias and motive to misrepresent the
    truth, and precluded Appellant from presenting her theory of the
    1
    Upon Appellant’s petition, we granted review of the following
    issue:
    WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY
    EXCLUDING, PURSUANT TO M.R.E. 403, RELEVANT EVIDENCE
    OF A PRIOR HOMOSEXUAL RELATIONSHIP BETWEEN APPELLANT
    AND A CENTRAL GOVERNMENT WITNESS OFFERED BY THE
    DEFENSE TO SHOW BIAS AND MOTIVE TO MISREPRESENT ON THE
    PART OF THE GOVERNMENT WITNESS.
    2
    United States v. Collier, No. 08-0495/NA
    case.    Under the facts of this case, this was a violation of
    Appellant’s Sixth Amendment right to confront a witness against
    her.    See Delaware v. Van Arsdall, 
    475 U.S. 673
    , 680 (1986)
    (“[A] criminal defendant states a violation of the Confrontation
    Clause by showing that he was prohibited from engaging in
    otherwise appropriate cross-examination designed to show a
    prototypical form of bias on the part of the witness . . . .”).
    Under the circumstances of this case, including the fact that in
    its closing argument the Government exploited the evidentiary
    limitation it requested to criticize the theory with which
    Appellant was left, we find this constitutional error was not
    harmless beyond a reasonable doubt.     The decision of United
    States Navy-Marine Corps Court of Criminal Appeals (CCA)
    upholding the military judge’s ruling is reversed.
    I.   Facts
    A special court-martial composed of members convicted
    Appellant, contrary to her pleas, of one specification of
    larceny of military property and one specification of
    obstructing justice by wrongfully endeavoring to influence the
    testimony of a witness, in violation of Articles 121 and 134,
    Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 921, 934
    (2000).    The sentence adjudged by the court-martial and approved
    by the convening authority included a bad-conduct discharge,
    confinement for six months, and reduction to the lowest enlisted
    3
    United States v. Collier, No. 08-0495/NA
    grade.   The United States Navy-Marine Corps Court of Criminal
    Appeals affirmed.    United States v. Collier, No. NMCCA
    200601218, 2008 CCA LEXIS 53, at *29, 
    2008 WL 495700
    , at *11 (N-
    M. Ct. Crim. App. Feb. 21, 2008) (unpublished).
    Prior to her court-martial, Appellant served as the tool
    custodian for Helicopter Combat Support Squadron EIGHT (HC-8) in
    Norfolk, Virginia.   The larceny charge in this case involves
    tools alleged to have been taken from this command.   Hospitalman
    Second Class (HM2) C testified for the Government that she found
    these tools in her home.   HM2 C testified that she and Appellant
    had been good friends and that Appellant had stayed at her home
    four or five nights a week.   Appellant kept some of her
    belongings at HM2 C’s home, specifically, in HM2 C’s son’s
    bedroom.   At some point, Appellant and HM2 C had a falling out
    and HM2 C requested that Appellant not return to HM2 C’s home.
    The women disagreed about how Appellant could retrieve her
    belongings from HM2 C, which eventually resulted in Appellant
    asking her command for help in obtaining several items she
    claimed were still at HM2 C’s house, including tools, a
    television, and a diamond ring.   HM2 C testified that when she
    checked her home for these items, she first found a bag of tools
    in her garage, and later found more tools in a chest of drawers
    in her son’s room.
    4
    United States v. Collier, No. 08-0495/NA
    After each discovery, HM2 C consulted with her command and
    then arranged for the return of the tools to Appellant’s
    command.   There were 215 tools returned to HC-8 by HM2 C, of
    which approximately 65 were etched with the command code “B10”
    or “B1.”   Among the tools returned was an etcher.   Testimony at
    trial established that prior to HM2 C turning them in, no one
    had noticed this large quantity of tools missing.    This was true
    even though a cursory visual check of the locker in which such
    tools were kept was done not long before the tools were turned
    in.   Testimony also established that while all of the recovered
    tools were among those used by HC-8, many, if not all, of them
    could be purchased at retail stores such as Sears.
    Some time after Appellant had been charged with larceny of
    the tools, HM2 C encountered Appellant at a beauty salon.    HM2 C
    testified that at the salon, she overheard Appellant speaking on
    her cell phone.   According to HM2 C, while Appellant was
    standing close to her, Appellant said into her cell phone:
    “Yeah, we should get this bitch; let’s get her.”     When HM2 C
    left the salon, she found that a tire on her car had been
    slashed.   Appellant admitted to the civilian authorities that
    she had slashed the tire.   Based on this incident, Appellant was
    charged with one count of obstructing justice by wrongfully
    endeavoring to influence the testimony of a witness, under
    Article 134, UCMJ.
    5
    United States v. Collier, No. 08-0495/NA
    Prior to court-martial, the Government filed a motion in
    limine seeking to prohibit Appellant’s defense counsel from
    cross-examining HM2 C about an alleged homosexual romantic
    relationship between her and Appellant and from introducing any
    evidence of such a relationship.       The basis of the Government’s
    motion was threefold:   (1) no such relationship existed, and
    even if it did exist it was not relevant; (2) even if the
    relationship was relevant, prejudice created by statute and Navy
    policy prohibiting homosexual conduct would substantially
    outweigh the relevance; and (3) allowing this line of
    questioning would “serve only to embarrass and harass the
    witness.”
    At the hearing on the motion, trial counsel advanced two
    additional arguments.   First, Appellant could show sufficient
    bias by inquiring into the fact that the women were no longer
    friends because the women had argued about HM2 C’s daughter and
    also because HM2 C’s boyfriend didn’t like Appellant.      Second,
    the factual dispute about whether the two women actually had a
    romantic or sexual relationship was a collateral matter that
    threatened to take over the proceedings and confuse the members.
    During the hearing trial counsel further asserted that evidence
    of a homosexual relationship was “too inflammatory” for the
    members to hear.   As part of this assertion, trial counsel
    emphasized the homosexual nature of the relationship and linked
    6
    United States v. Collier, No. 08-0495/NA
    the danger of unfair prejudice to the congressional finding that
    “homosexuality presents an unacceptable risk to the high
    standards of morale, good order, and discipline in the
    military.”   Transcript of Record at 54, United States v.
    Collier, No. 08-0495; 10 U.S.C. § 654(a)(14) (2000).
    The defense opposed the motion, arguing that the Sixth
    Amendment guarantees the right to confront and cross-examine
    witnesses and that the limitation requested by the Government
    violated those rights.   Defense counsel argued that cross-
    examination and any related extrinsic evidence of a romantic
    homosexual relationship would be admissible under Military Rule
    of Evidence (M.R.E.) 608(c) to support a theory that HM2 C was
    biased against Appellant and had a motive to lie in her
    testimony because their relationship had ended badly.    See
    M.R.E. 608(c) (“Bias, prejudice, or any motive to misrepresent
    may be shown to impeach the witness either by examination of the
    witness or by evidence otherwise adduced.”).    In addition,
    defense counsel argued that this evidence would be relevant to
    show that the tire slashing was due to Appellant’s anger over
    the breakup of their relationship, rather than done “with the
    intent to influence” HM2 C’s testimony, as required to prove the
    obstructing justice charge.   Manual for Courts-Martial, United
    States pt. IV, para. 96b(3) (2005 ed.) (MCM).
    7
    United States v. Collier, No. 08-0495/NA
    While the Government claimed that there was no qualitative
    difference between a friendship and a romantic relationship for
    purposes of showing bias, defense counsel disagreed, arguing:
    “What motivates a person to do something, or how they may be
    biased, I think, are completely different, apples and oranges,
    between a friendship and a romantic relationship, whether it be
    homosexual or heterosexual.”
    After hearing argument on the motion, the military judge
    stated on the record that the defense had “presented sufficient
    evidence, for the purposes of the motion, that there was such a
    sexual relationship.”   Transcript of Record at 75-76, Collier,
    No. 08-0495; see M.R.E. 104(a) (“Preliminary questions
    concerning . . . the admissibility of evidence . . . shall be
    determined by the military judge.”).   In his formal ruling on
    the motion, the military judge did not make a conclusive finding
    of fact as to whether the sexual relationship actually occurred,
    although he did note that during the hearing on the motion:
    [T]he defense presented the testimony of the
    accused that there was such a sexual
    relationship. The accused also testified that
    their relationship lasted four months and ended
    just prior to the witness reporting the alleged
    larceny. The accused also testified that their
    relationship was always sexual, until it ended on
    or about early March 2004. The government
    presented evidence by cross-examination of the
    accused and by affidavit that tends to refute any
    sexual aspect to the relationship.
    8
    United States v. Collier, No. 08-0495/NA
    Findings and Ruling on Government Motion In Limine at 1, United
    States v. Collier, Special Court-Martial, Tidewater Judicial
    Circuit (Nov. 24, 2004).   The military judge found that the
    “nature of the relationship has some relevance to the
    determination of [the bias] issue by the jury.”    Id. at 2.    He
    then concluded that after “balancing this relevance with M.R.E.
    403 and M.R.E. 611, the court finds that the sexual nature of
    this relationship is not sufficiently relevant.”   Id.   Finally,
    the judge ruled:
    [T]he defense may ask, on cross-examination, if the
    witness would characterize the relationship as close,
    personal and/or emotionally close. The defense may
    ask her if the relationship was closer than ordinary
    friends. Pursuant to M.R.E. 608(c), the defense may
    also introduce extrinsic evidence on the nature of the
    relationship including testimony or documents, if
    otherwise admissible. However, the defense will not
    open the issue of any alleged sexual acts between the
    witness and the accused. Specifically, the defense
    will not ask any witness if the relationship was
    sexual, homosexual, intimate or romantic.
    Id. (emphasis added).
    The CCA found that the military judge did not abuse his
    discretion when he limited defense counsel’s cross-examination
    of HM2 C.   Collier, 2008 CCA LEXIS 53, at *11, 
    2008 WL 495700
    ,
    at *4.   Specifically, the CCA stated:   “Reviewing the facts
    before the military judge at the time of his ruling, we conclude
    that he correctly balanced the probative value against the
    prejudicial impact of evidence that would have been of a
    9
    United States v. Collier, No. 08-0495/NA
    particularly inflammatory nature in a trial by court-martial.”
    Id. at *10, 2008 WL495700, at *4.       In support of this
    conclusion, the CCA cited “‘the high degree of antipathy to
    homosexuality in the armed forces’” as well as the fact that
    “‘[a] person who engages in homosexual conduct . . . is subject
    to mandatory discharge, with very limited exceptions.’”        Id.
    (quoting United States v. Phillips, 
    52 M.J. 268
    , 273 (C.A.A.F.
    2000) (Effron, J., dissenting)).
    II.   Discussion
    A.   The Sixth Amendment and limits on cross-examination
    It is well settled that “the exposure of a witness’
    motivation in testifying is a proper and important function of
    the constitutionally protected right of cross-examination.”
    Davis v. Alaska, 
    415 U.S. 308
    , 316-17 (1974).       Through cross-
    examination, an accused can “expose to the jury the facts from
    which jurors . . . could appropriately draw inferences relating
    to the reliability of the witness.”      Id. at 318.   A limitation
    on an accused’s presentation of bias evidence may be a violation
    of the Sixth Amendment right to confront witnesses.      The
    question is whether “[a] reasonable jury might have received a
    significantly different impression of [the witness’s]
    credibility had [defense counsel] been permitted to pursue his
    proposed line of cross-examination.”      Van Arsdall, 475 U.S. at
    680.   The right of cross-examination is not unlimited, however;
    10
    United States v. Collier, No. 08-0495/NA
    the accused’s confrontation right does not give, for example,
    free license to cross-examine a witness to such an extent as
    would “‘hammer th[e] point home to the jury.’”   United States v.
    James, 
    61 M.J. 132
    , 135 (C.A.A.F. 2005) (quoting United States
    v. Nelson, 
    39 F.3d 705
    , 708 (7th Cir. 1994)).    Whether
    sufficient cross-examination has been permitted depends on
    whether the witness’s motivation for testifying has already been
    exposed and “further inquiry . . . would [be] marginally
    relevant at best and potentially misleading.”    United States v.
    Carruthers, 
    64 M.J. 340
    , 344 (C.A.A.F. 2007) (finding cross-
    examination of coconspirator about his pretrial agreement was
    sufficient even though the military judge had refused to permit
    questions related to the term setting a maximum punishment).
    In this case, the military judge’s ruling prohibited all
    cross-examination and extrinsic evidence regarding a sexual or
    romantic relationship between Appellant and HM2 C.   This did not
    allow Appellant to expose the alleged nefarious motivation
    behind HM2 C’s allegations and testimony.   The Government argues
    that Appellant was able to conduct sufficient cross-examination
    without revealing whether the relationship between the two women
    was a romantic one.   However, it is intuitively obvious that
    there is a qualitative difference between the breakup of a
    friendship and a badly ended romantic relationship, whether that
    romantic relationship was sexual or not.    As has long been
    11
    United States v. Collier, No. 08-0495/NA
    recognized, “Heav’n has no Rage, like Love to Hatred turn’d.”
    William Congreve, The Mourning Bride 39 (Jacob Tonson 1703)
    (1697).   We have no doubt that the romantic nature of a
    relationship has a “special relevance” to motivation such that
    allowing additional cross-examination in that area is not a mere
    “opportunity . . . to hammer th[e] point home to the jury.”
    Carruthers, 64 M.J. at 344 (citation and quotation marks
    omitted).
    Appellant claimed during her testimony on the motion in
    limine that her relationship with HM2 C went beyond friendship,
    to a sexual and romantic relationship that lasted four months,
    during which time she lived with HM2 C.    If the members had been
    given evidence of a sexual and romantic relationship between HM2
    C and Appellant, they might have had a significantly different
    impression of HM2 C’s credibility.   In the context of a romantic
    relationship turned sour, Appellant’s theory of the case, in
    which HM2 C framed Appellant, could have been credible to the
    panel.
    Of course, “trial judges retain wide latitude insofar as
    the Confrontation Clause is concerned to impose reasonable
    limits on such cross-examination based on concerns about, among
    other things, harassment, prejudice, confusion of the issues,
    the witness’ safety, or interrogation that is repetitive or only
    marginally relevant.”   Van Arsdall, 475 U.S. at 679.   In this
    12
    United States v. Collier, No. 08-0495/NA
    case, the military judge acknowledged that Appellant had a Sixth
    Amendment right to confront HM2 C, but ruled that evidence of a
    sexual relationship between them was not admissible under M.R.E.
    403 and M.R.E. 611, both of which reflect the concerns cited by
    the Supreme Court in Van Arsdall.   See M.R.E. 403 (requiring a
    military judge to decide whether the probative value of evidence
    is “substantially outweighed by the danger of unfair prejudice,
    confusion of the issues, or misleading the members, or by
    considerations of undue delay, waste of time, or needless
    presentation of cumulative evidence”); M.R.E. 611(a) (allowing
    military judge to control the mode and order of interrogating
    witnesses, including to “protect [them] from harassment or undue
    embarrassment”).
    A military judge’s ruling that bias evidence is
    inadmissible is reviewed for an abuse of discretion.   United
    States v. Moss, 
    63 M.J. 233
    , 236 (C.A.A.F. 2006).   For the
    ruling to be an abuse of discretion, it must be “more than a
    mere difference of opinion”; rather, it must be “‘arbitrary,
    fanciful, clearly unreasonable’ or ‘clearly erroneous.’”    United
    States v. McElhaney, 
    54 M.J. 120
    , 130 (C.A.A.F. 2000) (quoting
    United States v. Miller, 
    46 M.J. 63
    , 65 (C.A.A.F. 1997); United
    States v. Travers, 
    25 M.J. 61
    , 62 (C.M.A. 1987)).   Although “[a]
    military judge enjoys wide discretion in applying [M.R.E.]
    403[,] . . . [t]his Court gives military judges less deference
    13
    United States v. Collier, No. 08-0495/NA
    if they fail to articulate their balancing analysis on the
    record.”    United States v. Manns, 
    54 M.J. 164
    , 166 (C.A.A.F.
    2000) (citations and quotation marks omitted).   In this case,
    the military judge did not make any findings of fact or
    conclusions of law about the objections raised by the Government
    under R.C.M. 611 and M.R.E. 403; he merely recited their
    arguments.   Because of this failure to articulate his analysis,
    we accord the military judge’s ruling less deference and will
    examine the record to assess both his decision and that of the
    CCA.   United States v. Bins, 
    43 M.J. 79
    , 85-86 (C.A.A.F. 1996).
    Harassment of the witness
    The military judge’s ruling reiterated the Government’s
    request that he use his authority under M.R.E. 611(a)(3) “to
    control the scope and mode of witness interrogation, [and] to
    prevent the harassment of witnesses.”   Like the identical
    federal rule, M.R.E. 611 “calls for a judgment under the
    particular circumstance whether interrogation tactics entail
    harassment or undue embarrassment.”   Fed. R. Evid. 611 advisory
    committee’s note, reprinted in 28 Charles Alan Wright & Victor
    James Gold, Federal Practice and Procedure 320 (1993).     In this
    case, the military judge made no findings about the likelihood
    that HM2 C would suffer from undue embarrassment or harassment
    as a result of cross-examination or the presentation of bias
    evidence.    Nor do we see any evidence in the record that defense
    14
    United States v. Collier, No. 08-0495/NA
    counsel planned to conduct cross-examination in a threatening or
    embarrassing manner.   From a practical standpoint, all bias
    evidence has some potential to embarrass the witness; after all,
    counsel is attempting to show that the witness has reason to lie
    and is promoting the inference that the witness is in fact
    lying.   See United States v. Williams, 
    40 M.J. 216
    , 218 (C.M.A.
    1994) (“By definition, effective impeachment evidence should be
    prejudicial to a witness” being cross-examined.) (emphasis in
    original).   Moreover, while M.R.E. 611 permits a military judge
    to impose limitations on the length and details of cross-
    examination, it does not purport to authorize preemptively
    shutting the door completely on otherwise relevant cross-
    examination.    See United States v. Jones, 
    49 M.J. 85
    , 88
    (C.A.A.F. 1998) (noting that a military judge has wide latitude
    to restrict cross-examination “‘only after there has been
    permitted as a matter of right sufficient cross-examination’”
    (quoting United States v. Lindstrom, 
    698 F.2d 1154
    , 1160 (11th
    Cir. 1983))).   The military judge’s use of M.R.E. 611 to
    foreclose any cross-examination into a romantic or sexual
    relationship without evidence of potential harm was an abuse of
    discretion under these circumstances.
    Waste of time or confusion of issues
    The Government also asserted that the uncertainty over
    whether there was a homosexual relationship between Appellant
    15
    United States v. Collier, No. 08-0495/NA
    and HM2 C was a “disputed collateral matter, which may involve
    the conflicting testimony of several witnesses, leading to a
    waste of time and a confusion of the issues for the jury.”
    Although the military judge found that there was conflicting
    evidence on the existence of a homosexual romantic relationship
    between Appellant and HM2 C, he made no factual findings about
    any delay or confusion that could result from the cross-
    examination of HM2 C or the presentation of extrinsic evidence
    under M.R.E. 608(c) on the question.   From a review of the
    record, we note that defense counsel planned to ask HM2 C about
    the relationship and, if she denied it existed, to ask two
    additional witnesses, one of whom ultimately testified at the
    court-martial.   The record does not support the military judge’s
    decision to take the ultimate questions -- whether that
    relationship existed and whether it led HM2 C to lie -- away
    from the members.   Having found that Appellant made a threshold
    showing there was “some evidence” of such a relationship, it was
    for the members, as the triers of fact, to decide if a
    relationship existed and if its end caused HM2 C to be biased or
    to misrepresent.    See Bins, 43 M.J. at 85 (noting that it is the
    military judge’s duty to determine only whether there is “some
    evidence that tend[s] to establish” a fact and finding that the
    military judge “exceeded his authority and usurped the members’
    16
    United States v. Collier, No. 08-0495/NA
    role” when he decided for himself whether the witness was biased
    for the reason proffered by the appellant).
    Danger of unfair prejudice
    The third main argument offered by the Government, but not
    recited in the military judge’s ruling, was that evidence of a
    homosexual relationship was too prejudicial to be admitted.   It
    was this argument that the CCA credited in its decision
    upholding the ruling of the military judge, concluding that the
    military judge did not err in excluding the evidence due to “the
    prejudicial impact of evidence that would have been of a
    particularly inflammatory nature in a trial by court-martial.”
    Collier, 2008 CCA LEXIS 53, at *10, 
    2008 WL 495700
    , at *4.    This
    conclusion supplied a rationale for the military judge’s ruling
    that the military judge himself did not articulate and, further,
    it inappropriately focused on a generalized and amorphous
    “prejudicial impact” without identifying who or what would be
    prejudiced.   Id. (citing as evidence of prejudicial impact the
    “‘high degree of antipathy to homosexuality in the armed
    forces’” as reflected in congressional findings supporting the
    mandatory discharge of most servicemembers who engage in
    homosexual conduct (quoting Phillips, 52 M.J. at 273 (Effron,
    J., dissenting)).
    First, the term “unfair prejudice” in the context of M.R.E.
    403 “speaks to the capacity of some concededly relevant evidence
    17
    United States v. Collier, No. 08-0495/NA
    to lure the factfinder into declaring guilt on a ground
    different from proof specific to the offense charged.”    Old
    Chief v. United States, 
    519 U.S. 172
    , 180 (1997) (analyzing the
    purpose behind Fed. R. Evid. 403, which is identical to M.R.E.
    403) (emphasis added); see also Fed. R. Evid. 403 advisory
    committee’s note (“‘Unfair prejudice’ within [Fed. R. Evid. 403]
    means an undue tendency to suggest decision on an improper
    basis, commonly, though not necessarily, an emotional one.”).
    M.R.E. 403 addresses prejudice to the integrity of the trial
    process, not prejudice to a particular party or witness.     In
    this case, the military judge made no findings related to
    potential prejudice to the trial process that could be created
    by evidence of homosexuality, such as a tendency for members
    either to disbelieve the witness or to find Appellant guilty
    without a proper basis.   In the context of an interracial
    relationship, the Supreme Court recognized that “[s]peculation
    as to the effect of jurors’ racial biases cannot justify
    exclusion of cross-examination with such strong potential to
    demonstrate the falsity of [the witness’s] testimony.”    Olden v.
    Kentucky, 
    488 U.S. 227
    , 232 (1988).   Any conclusion that the
    factfinders would be predisposed against either HM2 C or
    Appellant in this case would have been similarly speculative.
    Members are presumed to follow a military judge’s instructions
    to consider evidence for a proper purpose, such as bias or
    18
    United States v. Collier, No. 08-0495/NA
    motive to misrepresent, and not let personal beliefs or feelings
    affect their determinations about witness credibility.    United
    States v. Taylor, 
    53 M.J. 195
    , 198 (C.A.A.F. 2000).
    Second, the CCA’s decision placed unwarranted emphasis on
    the military context when it based its conclusion on the
    potential for unfair prejudice.    We recognize the policy
    subjecting homosexuals to mandatory separation if they have
    engaged in, or solicited another to engage in, homosexual acts.
    10 U.S.C. § 654(b) (2000).    However, that policy is not a per se
    indication of unfair prejudice within the military justice
    system.   This Court has not allowed the military’s policy on
    homosexuality to prevent evidence of homosexuality from being
    used against an accused.     See Phillips 52 M.J. at 272-73
    (permitting trial counsel to offer evidence that the accused was
    engaged in a homosexual relationship).    And we see no principled
    reason to prevent an accused from using this same type of
    evidence to potential advantage, particularly where, as here,
    Appellant was the proponent of the evidence of a homosexual
    relationship with the Government’s primary witness.    See
    Williams, 40 M.J. at 218 (stating the military judge erred if he
    excluded evidence based on the potential for prejudice to the
    accused because the accused “was the proponent of the evidence
    and waived objection to any adverse inferences from such
    evidence”).   Finally, we note that the CCA decision relied upon
    19
    United States v. Collier, No. 08-0495/NA
    language from the dissenting opinion in Phillips to conclude
    that the evidence was too prejudicial.   Collier, 2008 CCA LEXIS
    53, at *10-*11, 
    2008 WL 495700
    , at *4.   The dissent in Phillips,
    however, did not foreclose the possibility that evidence of a
    homosexual relationship could be admissible.    See Phillips, 52
    M.J. at 273 (Effron, J., dissenting) (recognizing that “a sexual
    relationship that both pre-dates and post-dates a marriage,
    regardless of sexual orientation, is potentially relevant on the
    question of whether the marriage is a sham”).
    Because the military judge’s ruling lacked an articulated
    or supportable legal basis, and was thus an abuse of discretion,
    and the decision of the CCA was based on speculation about
    prejudicial impact unrelated to any specific findings of the
    military judge,2 we find that the limitation on cross-examination
    and related bias evidence was a violation of Appellant’s Sixth
    Amendment confrontation rights.
    B.   Harmlessness beyond a reasonable doubt
    Having found constitutional error, the question
    remains whether that error was harmless beyond a reasonable
    doubt.   Chapman v. California, 
    386 U.S. 18
    , 24 (1967).   In
    the case of limitation of cross-examination, “the correct
    2
    For example, the military judge made no comments or assessment
    on the record of prejudice related to the risks of investigation
    and separation associated with the military’s “Don’t Ask, Don’t
    Tell” policy, which was the prejudice referenced by the CCA.
    Collier, 2008 CCA LEXIS 53, at *10, 
    2008 WL 495700
    , at *4.
    20
    United States v. Collier, No. 08-0495/NA
    inquiry is whether, assuming that the damaging potential of
    the cross-examination were fully realized, a reviewing
    court might nonetheless say that the error was harmless
    beyond a reasonable doubt.”   Van Arsdall, 475 U.S. at 684.
    The burden is on the Government to show that “there is no
    reasonable possibility” that the error “contributed to the
    contested findings of guilty.”   United States v. Othuru, 
    65 M.J. 375
    , 377 (C.A.A.F. 2007).   An error has not
    contributed to the verdict when it was “‘unimportant in
    relation to everything else the jury considered on the
    issue in question, as revealed in the record.’”     Id.
    (quoting Yates v. Evatt, 
    500 U.S. 391
    , 403 (1991),
    overruled on other grounds by Estelle v. McGuire, 
    502 U.S. 62
    , 72 n.4 (1991)).
    To find that the error here warrants relief, we need
    not conclude that Appellant’s defense would have succeeded.
    Instead the inquiry should focus on whether the military
    judge’s ruling “essentially deprived Appellant of [her]
    best defense” that “may have tipped the credibility balance
    in Appellant’s favor.”   Moss, 63 M.J. at 239.    Because this
    error was a violation of Appellant’s right to confront
    witnesses, we apply the balancing test articulated by the
    Supreme Court in Van Arsdall:
    21
    United States v. Collier, No. 08-0495/NA
    the importance of the witness’ testimony in the
    prosecution’s case, whether the testimony was
    cumulative, the presence or absence of evidence
    corroborating or contradicting the testimony of the
    witness on material points, the extent of cross-
    examination otherwise permitted, and, of course, the
    overall strength of the prosecution’s case.
    475 U.S. at 684.
    At trial, Appellant’s strategy was to discredit HM2 C’s
    testimony through the use of bias evidence.   The main theory
    offered to defend against the larceny charges was that HM2 C
    framed Appellant for the theft of the tools by buying and
    etching tools to look like they came from the squadron.   Due to
    the military judge’s limitation on cross-examination of HM2 C,
    defense counsel was able to offer only the end of a friendship
    as motivation for the framing.   If there had been no such
    limitation, and depending on the evidence introduced at trial,
    defense counsel could have argued that HM2 C’s distress over the
    breakup of her romantic relationship with Appellant inspired her
    to frame Appellant.   In addition, defense counsel wanted to show
    that Appellant slashed HM2 C’s tire out of anger over the
    breakup, rather than with the intent to influence testimony.
    After considering the Van Arsdall factors in relation to these
    defense strategies, we find that on balance they compel the
    conclusion that the limitation on cross-examination and related
    evidence was not harmless beyond a reasonable doubt.
    22
    United States v. Collier, No. 08-0495/NA
    Obstruction charge
    On the obstruction charge, the Government had
    circumstantial evidence of motive that included the following
    facts:   (1) Appellant had been informed about the pending
    larceny charges; (2) Appellant knew HM2 C had turned her in; and
    (3) the offense occurred about one month after Appellant had
    been informed the larceny charges.   A civilian testified that
    Appellant admitted to her that she was the one who slashed HM2
    C’s tire.   Because HM2 C was one of only two witnesses on the
    influencing testimony charge, any additional damage to HM2 C’s
    credibility could have been very significant to the outcome of
    the case.   The other witness was the civilian police officer in
    charge of the investigation, but her testimony only established
    the fact that Appellant admitted slashing the tire.   The
    detective testified that she did not discuss the impending
    court-martial with HM2 C and therefore did not establish the
    motive necessary to prove obstruction of justice.    When defense
    counsel was prevented from trying to elicit evidence of a
    romantic or sexual relationship between Appellant and HM2 C,
    Appellant lost her best chance at showing the tire slashing was
    motivated by anger over the end of that relationship, rather
    than an attempt to influence testimony.
    23
    United States v. Collier, No. 08-0495/NA
    Larceny Charge
    To assess the strength of the Government’s case on the
    larceny charge, we must take into account the presence of the
    following corroborating evidence.    Many, although by no means
    all, of the tools HM2 C returned to Appellant’s command had the
    helicopter squadron’s markings etched on them.   There was
    testimony that all of the recovered tools were ones that the
    squadron typically kept in stock, and that some of them were
    specialized to aircraft.   One of the bags of tools returned to
    the squadron also contained personal papers belonging to
    Appellant.   In addition, one of Appellant’s coworkers testified
    that he once saw her struggling to remove a heavy bag of unknown
    contents from the squadron.
    On the other hand, the larceny case was based on
    circumstantial evidence:   Appellant did not confess; no one saw
    or claimed to see her actually take the tools; and no
    fingerprint evidence was presented.   Although a Government
    witness testified he saw Appellant removing a heavy bag from the
    squadron, there was also testimony from a defense witness that
    Appellant stored heavy ratings manuals in a duffel bag in their
    shared locker.   Some of the physical evidence presented
    supported Appellant’s theory of the case:   all of the tools
    appeared to be new, and some were still in their original
    packaging.   Although some tools were etched, an etcher was found
    24
    United States v. Collier, No. 08-0495/NA
    with the tools, which supports Appellant’s theory that HM2 C
    bought the tools herself and etched them.    Testimony at trial
    established that the command code, either “B10” or “B1,” was
    marked by hand on the tool itself.     Because this code was a
    simple marking, anyone who knew it could have etched it into the
    tools.    Testimony also established that many, if not all, of the
    tools could have been purchased at a retail store such as Sears.
    Finally, HM2 C was a principal prosecution witness and, as the
    person who found the tools, her testimony was crucial to the
    case.    The case was initiated solely by HM2 C’s report;
    otherwise, no one at HC-8 had noticed that any tools were
    missing, and no inventory list showed any missing tools.
    Looking at the extent of cross-examination otherwise
    permitted, none was specifically allowed on the romantic or
    sexual nature of the relationship.     This favors Appellant,
    unless there was “effective cross-examination without the use of
    the excluded evidence.”    Williams, 40 M.J. at 219.   Defense
    counsel was permitted to ask HM2 C about several things that
    could have indicated she had a motive to lie about the tools,
    including:    HM2 C’s concern that Appellant had a crush on her;
    situations in which Appellant contributed to tensions between
    HM2 C and her boyfriend or between HM2 C and her daughter; and
    HM2 C’s unsuccessful attempt to take out a restraining order on
    Appellant.    As we have previously emphasized, however, there is
    25
    United States v. Collier, No. 08-0495/NA
    a qualitative difference between the cross-examination permitted
    by the military judge and the prohibited inquiry into a failed
    romantic, sexual relationship.    When Appellant was refused
    permission to delve into the motive to lie that would arise from
    that kind of experience, she was deprived of her best chance to
    show the members that HM2 C was biased to the extent that she
    would fabricate the story about the tools or frame Appellant.
    Adding insult to injury, the Government exploited the very
    evidentiary limitation it requested in closing argument.    “Are
    we supposed to believe that [HM2 C] or somebody else went out
    and spent $2,700.00 on tools to set this up because she’s mad at
    somebody?    That strains all logic; it’s just not credible.”
    Transcript of Record at 620, Collier, No. 08-0495.    Even if it
    would seem incredible for an ex-friend to concoct this type of
    revenge, it would not strain all logic to imagine that an ex-
    lover would do so.   The cross-examination that was prohibited
    “may have tipped the credibility balance in Appellant’s favor.”
    Moss, 63 M.J. at 239.    That we find this could have tipped the
    balance does not mean it will, or even should, do so at a
    rehearing.   But ultimately, that is for the finders of fact to
    determine, not this Court.
    III.   Decision
    Under all the circumstances, and particularly in light of
    the Government’s closing argument, we cannot say that the error
    26
    United States v. Collier, No. 08-0495/NA
    was “unimportant in relation to everything else the jury
    considered,” and therefore, there is a reasonable possibility it
    contributed to the verdict and it was not harmless beyond a
    reasonable doubt.   Othuru, 65 M.J. at 377 (citation and
    quotation marks omitted).   The decision of the United States
    Navy-Marine Corps Court of Criminal Appeals is reversed.    The
    findings of guilty to both the charges and specifications and
    the sentence are set aside and a rehearing is authorized.
    27
    United States v. Collier, No. 08-0495/NA
    BAKER, Judge (dissenting):
    This Court reviews a military judge’s decision on the
    admissibility of evidence under an abuse of discretion standard.
    United States v. Collier, __ M.J. __ (13) (C.A.A.F. 2009).     In
    this case, the military judge made a reasonable decision to
    exclude the evidence of Appellant’s alleged sexual relationship
    with HM2 C, certainly a decision that was within his discretion.
    This Court should not reverse that decision because it would
    have reached a different result.
    DISCUSSION
    “To reverse for an abuse of discretion involves far more
    than a difference . . . in opinion. . . .   The challenged action
    must [be] . . . clearly unreasonable, or clearly erroneous in
    order to be invalidated on appeal.”   United States v. Travers,
    
    25 M.J. 61
    , 62 (C.M.A. 1987) (citations and quotation marks
    omitted) (brackets added; ellipses in original).   The military
    judge conducted a Military Rule of Evidence (M.R.E.) 403
    balancing test, which he articulated on the record, and placed
    reasonable limits on the manner in which Appellant could seek to
    impeach HM2 C’s testimony based on their alleged sexual
    relationship.
    A.   Deference
    The majority concludes that we should “accord the military
    judge’s ruling less deference” because he failed to articulate
    United States v. Collier, No. 08-0495/NA
    his analysis on the record.   Collier, __ M.J. at __ (14).     A
    military judge is only required to “record his balancing
    analysis to the extent that his exercise of discretion may be
    fairly reviewed on appeal.”   Government of the Virgin Islands v.
    Archibald, 
    987 F.2d 180
    , 186 (3d Cir. 1993) (citation and
    quotation marks omitted).   In my view, the military judge’s
    articulation makes it clear how and why he determined that
    evidence of an alleged sexual relationship was not legally
    relevant to bias and why the M.R.E. 403 and M.R.E. 611
    considerations outweighed any potential factual relevance.     The
    military judge cited the parties’ arguments to explore, on the
    one hand, the probative value of the evidence, and, on the other
    hand, the risk of prejudice, confusion, and waste of time.     The
    record reflects that the military judge conducted a “proper
    balancing test” under M.R.E. 403, and this Court should give the
    appropriate deference to his ruling.   United States v. Manns, 
    54 M.J. 164
    , 166 (C.A.A.F. 2000).
    B.   M.R.E. 403
    Based on his analysis, the military judge found that the
    probative value of an alleged homosexual relationship to show
    HM2 C’s bias was “substantially outweighed by the danger of
    unfair prejudice, confusion of the issues” and “waste of time.”
    M.R.E. 403.   This conclusion was based, inter alia, on the
    disputed nature of Appellant and HM2 C’s relationship.
    2
    United States v. Collier, No. 08-0495/NA
    Appellant’s proffer consisted of her statement to the military
    judge that the relationship was sexual.    Although defense
    counsel offered no further detail or tangible evidence of a
    sexual relationship, defense counsel stated that, “there are two
    other witnesses that we could call that would provide extrinsic
    evidence that would go to her bias.”1    However, as defense
    counsel acknowledged, HM2 C denied that the relationship was
    sexual.    So did HM2 C’s daughter, who filed an affidavit stating
    that the relationship was based on friendship and “nothing
    more.”
    Based on the information presented during the Article
    39(a), Uniform Code of Military Justice (UCMJ), 10 U.S.C. §
    839(a) (2000), session and in the parties’ briefs on the Motion
    for Appropriate Relief, the military judge reached the following
    findings and conclusions:
    •    “The defense has met their preliminary burden that the
    break-up of the relationship between this key witness and
    the accused may relate to motive by the witness to make
    the false allegation of larceny of military property.”2
    1
    One of these witnesses was the detective who investigated the
    case.
    2
    Findings and Ruling on Government Motion In Limine at 2, United
    States v. Collier, Special Court-Martial, Tidewater Judicial
    Circuit (Nov. 24, 2004).
    3
    United States v. Collier, No. 08-0495/NA
    •   “The government presented evidence by cross-examination
    of the accused and by affidavit that tends to refute any
    sexual aspect to the relationship.”3
    •   “[T]he sexual nature of this relationship is not
    sufficiently relevant.”4
    The military judge noted, “under [M.R.E] 403, . . . there’s a
    danger that there’s going to be a confusion of the issues
    because what the trial may deteriorate into is a trial within a
    trial as to whether or not there was a sexual relationship.”       In
    this case, the risk was well-founded, as would be the case
    regardless of the nature of the evidence offered, not less so
    because of the sensitive nature of this information.     Indeed,
    this raised the specter that HM2 C would be put “on trial” in
    addition to the accused.
    Further, the military judge looked to M.R.E. 611 “to
    control the scope and mode of witness interrogation, to prevent
    the harassment of witnesses.”     Questions regarding a homosexual
    relationship not only had the risk of embarrassing HM2 C, they
    carried the potential risk of investigation and separation under
    the military’s “Don’t Ask, Don’t Tell” policy.     10 U.S.C. §
    654(b)(1) (2000).
    3
    Id. at 1.
    4
    Id. at 2.
    4
    United States v. Collier, No. 08-0495/NA
    Thus, the military judge properly identified the risks
    associated with permitting testimony regarding a sexual
    relationship, most of which would exist whether the information
    pertained to a heterosexual or homosexual relationship.    The
    military judge reasonably concluded that those risks
    substantially outweighed the probative value of the information.
    C.   Reasonable Restriction
    A witness’s bias “is subject to exploration at trial, and
    is ‘always relevant as discrediting the witness and affecting
    the weight of his testimony.’”     Davis v. Alaska, 
    415 U.S. 308
    ,
    316 (1974) (citation omitted).     However, bias evidence, like any
    evidence, is subject to reasonable restrictions “to take account
    of such factors as ‘harassment, prejudice, confusion of the
    issues, the witness’ safety, or interrogation that [would be]
    repetitive or only marginally relevant.’”    Olden v. Kentucky,
    
    488 U.S. 227
    , 232 (1988) (quoting Delaware v. Van Arsdall, 
    475 U.S. 673
    , 679 (1986)); see also Davis, 415 U.S. at 316 (“Subject
    always to the broad discretion of a trial judge to preclude
    repetitive and unduly harassing interrogation, . . . the cross-
    examiner has traditionally been allowed to impeach, i.e.,
    discredit, the witness.”).   “Generally speaking, the
    Confrontation Clause guarantees an opportunity for effective
    cross-examination, not cross-examination that is effective in
    5
    United States v. Collier, No. 08-0495/NA
    whatever way, and to whatever extent, the defense might wish.”
    Delaware v. Fensterer, 
    474 U.S. 15
    , 20 (1985).
    Consistent with these constitutional dictates, the military
    judge did not adopt an all or nothing approach, as the majority
    suggests.    Rather, exercising his discretion, the military judge
    balanced the factors at hand in light of the law permitting the
    defense “to explore the issue of bias and motive to
    misrepresent, under M.R.E. 608(c),” and ultimately limited the
    evidence to uncontested evidence that had less risk of prejudice
    or harassment.    Specifically, the military judge allowed the
    defense to “characterize the relationship as close, personal
    and/or emotionally close,” but restricted the defense from
    “open[ing] the issue of any alleged sexual acts between the
    witness and the accused.”    The military judge also permitted
    defense counsel to ask HM2 C whether she “believed [Appellant]
    had a crush on [HM2 C].”    As this Court has said, “once the
    defendant has been allowed to expose a witness’s motivation in
    testifying, ‘it is of peripheral concern to the Sixth Amendment
    how much opportunity defense counsel gets to hammer that point
    home to the jury.’”    United States v. Carruthers, 
    64 M.J. 340
    ,
    344 (C.A.A.F. 2007) (citation omitted).
    D.     Speculation About Unfair Prejudice
    Even if the military judge had meticulously articulated
    every detail of his analysis (and he came close), the majority
    6
    United States v. Collier, No. 08-0495/NA
    implies that the military judge could not have reached a
    reasonable decision to exclude the evidence because any such
    decision would require speculation.     See Collier, __ M.J. at __
    (18).    Presented with these facts, if the military judge could
    not reasonably speculate about “the danger of unfair prejudice,
    confusion of the issues, or misleading the members” and whether
    those considerations outweigh the probative value of evidence,
    it seems that the military judge had no discretion whatsoever.
    M.R.E. 403.
    The majority compares this case to Olden v. Kentucky, in
    which the Supreme Court held that the judge abused his
    discretion by excluding evidence of an interracial sexual
    relationship based on “[s]peculation as to the effect of jurors’
    racial biases.”    488 U.S. at 232.    However, in contrast to this
    case, the relationship at issue in Olden was uncontested.      Id.
    at 230.    Further, while the relationship in Olden showed the
    victim’s potential motive to lie about the crime, as in this
    case, Appellant’s theory is much less plausible than that
    presented in Olden.    Id.   In addition to lying about the crime,
    Appellant and the majority posit that HM2 C purchased 215 tools
    (even though it is questionable whether all were publicly
    available for purchase), etched Appellant’s command code on 65
    of them, and otherwise fabricated the entire crime.     Collier, __
    M.J. at __ (24-25).    Thus, under this theory, after exposing
    7
    United States v. Collier, No. 08-0495/NA
    herself to perjury charges, revealing an illicit sexual
    relationship, and risking separation from the service, HM2 C
    would have her revenge.   This theory, of course, also
    presupposes that the Navy, having received the store-bought
    tools, negligently concluded that the tools were government
    property or wittingly joined in HM2 C’s conspiracy.
    Additionally, the majority argues that the suggestion of a
    sexual relationship would have made it more likely that
    Appellant slashed HM2 C’s tires out of anger, rather than to
    interfere with the key witness against her.    Id. at __ (23).
    Here too, rather than speculating about how the members might
    apply this information, the military judge’s well-balanced
    decision permitted the members to draw their own reasonable
    conclusions regarding the animosity between Appellant and HM2 C.
    The members heard that HM2 C and Appellant had a falling out,
    HM2 C attempted to obtain a restraining order against Appellant,
    and that, just prior to the tire slashing incident, they had
    argued about HM2 C returning Appellant’s property to her.    It is
    doubtful that an additional suggestion, disputed and refuted, of
    a sexual relationship between Appellant and HM2 C would have
    caused the members to reach a different verdict.
    It equally “strains all logic” to suggest that an angry,
    vengeful lover would go to such extremes, but that an “angry,
    vengeful friend” would not.   Id. at __ (2).   To be sure, it is a
    8
    United States v. Collier, No. 08-0495/NA
    leap in logic to conclude that a sexual relationship would drive
    someone to do all this in a way that the disintegration of a
    relationship that was “emotionally close” and “closer than
    ordinary friends” would not.   It also thoroughly discounts the
    sophistication of military members to identify and assess the
    myriad ways in which relationships are formed and broken and the
    hurt that results.   Therefore, the military judge reasonably
    concluded that information about the alleged sexual nature of
    Appellant’s and HM2 C’s relationship, above and beyond what the
    military judge actually admitted, was “not sufficiently
    relevant.”
    CONCLUSION
    Limiting defense questioning about a witness’s sexual life
    absent a valid showing of proof and legal relevance is a
    reasonable limitation on an accused’s right to present a defense
    and confront a witness.   The military judge properly used his
    discretion to allow Appellant to identify HM2 C’s potential bias
    while limiting it to avoid prejudice, confusion, waste of time,
    and harassment of the witness.
    As a result, like the United States Navy-Marine Corps Court
    of Criminal Appeals, I would conclude that the military judge
    did not abuse his discretion by excluding evidence of an alleged
    sexual relationship between HM2 C and Appellant.   United States
    v. Collier, No. NMCCA 200601218, 2008 CCA LEXIS 53, at *11, 2008
    9
    United States v. Collier, No. 08-0495/NA
    WL 495700, at *4 (N-M. Ct. Crim. App. Feb. 21, 2008)
    (unpublished).   I respectfully dissent.
    10