United States v. Savala , 70 M.J. 70 ( 2011 )

UNITED STATES, Appellee
v.
William R. SAVALA, Torpedoman’s Mate Second Class
U.S. Navy, Appellant
No. 10-0317
Crim. App. No. 200800818
United States Court of Appeals for the Armed Forces
Argued January 11, 2011
Decided May 17, 2011
EFFRON, C.J., delivered the opinion of the Court, in which
ERDMANN and RYAN, JJ., joined. STUCKY, J., filed a separate
dissenting opinion in which BAKER, J., joined.
Counsel
For Appellant: Philip D. Cave, Esq. (argued); Major Kirk
Sripinyo, USMC (on brief).
For Appellee: Captain Mark V. Balfantz, USMC (argued); Colonel
Louis J. Puleo, USMC, and Brian K. Keller, Esq. (on brief);
Commander Kimberly D. Hinson, JAGC, USNR.
Military Judges: David S. Oliver and John Wooldridge
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Savala, No. 10-0317/NA
Chief Judge EFFRON delivered the opinion of the Court.
A general court-martial composed of officer and enlisted
members, convicted Appellant, contrary to his pleas, of
attempted larceny, rape, unlawful entry, and adultery, in
violation of Articles 80, 120, 130, and 134, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. §§ 880, 920, 930, 934 (2006).
The sentence adjudged by the court-martial and approved by the
convening authority included a dishonorable discharge,
confinement for seven years, forfeiture of $898.00 pay per month
for eighty-four months, and reduction to the pay grade of E-1.
United States v. Savala, No. NMCCA 200800818, 2010 CCA LEXIS 9,
at *1, 2010 WL 317687, at *1 (N-M. Ct. Crim. App. Jan. 28, 2010)
(unpublished).
On Appellant’s petition, we granted review of the following
issue:
WHETHER THE LOWER COURT ERRED WHEN IT HELD
THAT THE DENIAL OF APPELLANT’S RIGHT TO
CROSS-EXAMINE HIS ACCUSER WAS HARMLESS
BEYOND A REASONABLE DOUBT.
For the reasons set forth below, we conclude that the
restriction on the scope of cross-examination constituted
prejudicial error.
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I. EXCLUSION OF EVIDENCE UNDER M.R.E. 412
Military Rule of Evidence (M.R.E.) 412 limits the
admissibility of specified forms of evidence in sexual offense
cases. The rule serves “to protect victims of sexual offenses
from the degrading and embarrassing disclosure of intimate
details of their private lives while preserving the
constitutional rights of the accused to present a defense.”
United States v. Banker, 60 M.J. 216, 219 (C.A.A.F. 2004).
The present case concerns M.R.E. 412(a), which generally
prohibits the introduction of evidence regarding the alleged
victim’s prior sexual behavior or the victim’s sexual
predisposition. The rule contains a number of exceptions to the
general prohibition, including a provision for the admissibility
of “evidence the exclusion of which would violate the
constitutional rights of the accused.” M.R.E. 412(b)(1)(C).
See Banker, 60 M.J. at 221 (noting that this exception
“addresses an accused’s Sixth Amendment right of confrontation
and Fifth Amendment right to a fair trial”).
The Sixth Amendment right of confrontation includes “the
constitutionally protected right of cross-examination.” See
Davis v. Alaska, 415 U.S. 308, 316-17 (1974). The right of
cross-examination includes the opportunity to inquire into
otherwise inadmissible matters if the prosecution, through its
presentation, opens the door to consideration of such matters.
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See United States v. Moulton, 47 M.J. 227, 228-29 (C.A.A.F.
1997); United States v. Welch, 25 M.J. 23, 26-27 (C.M.A. 1987);
cf. 1 Kenneth S. Broun et al., McCormick on Evidence § 57, at
291 (6th ed. 2006) (discussing judicial approaches to “opening
the door” for otherwise inadmissible evidence). The right of
confrontation is subject to limitations, including the authority
of the court to restrict the scope of cross-examination to avoid
problems such as harassment, prejudice, confusion of the issues
or repetitive interrogation. Delaware v. Van Arsdall, 475 U.S.
673, 679 (1986).
M.R.E. 412 constitutes a rule of exclusion. Banker, 60
M.J. at 221. The defense bears the burden of demonstrating the
admissibility of evidence that falls within the category of
otherwise excludable evidence under M.R.E. 412. Id. at 222.
II. TRIAL PROCEEDINGS
The present appeal focuses on the evidence pertinent to the
offenses of rape, unlawful entry, and adultery. Much of the
evidence presented at trial involved matters not in dispute.
The primary differences at trial involved the circumstances of
Appellant’s entry into the barracks room of Seaman ARM and the
ensuing encounter between Appellant and Seaman ARM.
The granted issue involves two defense motions at trial
under M.R.E. 412. The defense offered the first motion prior to
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the introduction of evidence. The defense offered a second
motion during the prosecution’s case-in-chief at a point where
the defense contended that the prosecution had opened the door
to the evidence at issue. The military judge denied both
motions. The Court of Criminal Appeals subsequently ruled that
the military judge erred in the disposition of the second
motion, but treated the error as harmless. Savala, 2010 CCA
LEXIS 9, at *23-*24, 2010 WL 317687, at *9.
We begin with background information pertinent to the
decisions by the military judge and the Court of Criminal
Appeals. Part II.A. sets forth the competing views of the
parties as to the facts with respect to the underlying offenses.
Part II.B. summarizes the first defense motion and ruling by the
military judge. Part II.C. summarizes the second defense motion
and ruling by the military judge.
A. THE COMPETING POSITIONS OF THE PROSECUTION
AND THE DEFENSE REGARDING THE CHARGED OFFENSES
1. Events prior to the barracks encounter -- matters not in
dispute
On the evening of the incident, Seaman ARM consumed a
substantial number of alcoholic beverages at several different
locations, including two clubs. Testimony from multiple
witnesses indicated that she was visibly drunk and that her
speech was impaired. Seaman ARM testified that at some point
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while at the second club, her perception of her surroundings
began to get hazy.
Appellant and his friend Seaman Townsel each testified that
they observed Seaman ARM in the second club. Appellant
testified that he observed Seaman ARM drinking. He had not
previously encountered her, and did not speak to her in the
club. Seaman Townsel testified that he had met Seaman ARM the
previous week, and that he spoke to her briefly in the club on
the night in question.
Seaman Townsel testified that at some point during the
visit to the second club, Seaman ARM fell onto a table, and her
friends assisted her in getting up. Eventually Seaman ARM and
several friends left the second club and went to a karaoke bar.
Afterwards, they returned to the base. One of those friends
testified that she stumbled as she approached the door to her
room at about 1:30 a.m., while another friend testified that
they returned from the karaoke bar at 4:30 a.m.
Appellant and Seaman Townsel returned to the barracks
sometime after 5:00 a.m. As they arrived at the barracks, the
two men discussed Seaman ARM. At the end of the discussion,
Appellant suggested that they visit her room. The full details
of the conversation do not appear on the record. Appellant
testified that he was left with the impression that Seaman ARM
“might be willing to have sexual intercourse.” Seaman Townsel,
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who knew where Seaman ARM lived, led Appellant to her room.
Seaman Townsel remained in a nearby common area while Appellant
knocked on the door.
2. Matters in dispute
a. The testimony of Seaman Townsel and Seaman ARM
concerning the events in the room
During the prosecution’s case-in-chief, Seaman Townsel
testified that when they approached the room, Appellant
suggested that Seaman Townsel knock on Seaman ARM’s door.
Seaman Townsel declined to do so, and sat in a nearby common
area while Appellant knocked on the door. According to Townsel,
after knocking on the door Appellant remarked that the door was
open. While the door was open, Townsel observed that the room
was dark. Townsel came to the door and urged Appellant to leave
with him. Appellant closed the door, and they both departed.
Townsel testified that they returned to their rooms, and he had
no further knowledge of Appellant’s activities that morning.
Seaman ARM testified that she left the second club and had
no memory of returning to her room or getting into bed. She
next recalled being in her bed, on her back, looking at the
chest of a person raping her. She did not recognize the person
but could tell that he had tanned or darker skin. She testified
that after her initial confusion upon waking, she said “no” and
tried to push the person away. She did not recall what happened
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United States v. Savala, No. 10-0317/NA
at that point. She testified that she subsequently woke up in
the shower with the water running. After showering, she
returned to her bed and then slept until 2:30 p.m. that
afternoon.
After awakening in the afternoon, Seaman ARM went to an
emergency room, where she received medical treatment. She did
not report the incident as a rape at that time. On the
following day, after speaking with a fellow airman and her
mother, she returned to the hospital and reported the incident
as a rape. At that point, she received a full sexual assault
and rape test (SART). She also provided authorities with her
bedding and a hat she had found in her room. Subsequent
forensic analysis connected DNA from the bedding to Appellant.
In addition, investigators determined that the door to Seaman
ARM’s room did not lock properly as a result of a broken locking
mechanism.
b. Appellant’s testimony concerning the events in the
room
The defense presented the court-martial panel with
different evidence regarding the events in the room. Appellant
testified that he knocked and Seaman ARM opened the door. He
introduced himself as a friend of Seaman Townsel, “the guy that
she met the previous week at” the club. According to Appellant,
Seaman ARM acknowledged having met Seaman Townsel, but stated
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that “she wasn’t really interested in him.” After more
conversation, she expressed interest in Appellant and noted that
he was “cute.” Appellant asked if he could come back and Seaman
ARM said yes. He then left her room, and Appellant and Seaman
Townsel then proceeded to their perspective rooms.
Appellant testified that after he “freshened up” in his
room, he returned alone to Seaman ARM’s room. After entering
the room, Appellant and Seaman ARM engaged in a fifteen- to
twenty-minute conversation. During the conversation Seaman ARM
began to touch Appellant’s arm and then legs, which eventually
led to kissing and sexual intercourse. According to Appellant,
at some point during intercourse Seaman ARM began to act
strangely and told Appellant to stop. After Appellant stopped,
Seaman ARM “got up, [and] ran to the bathroom,” which was
located across the hall from her room. Appellant dressed
himself, and went across the hall towards the bathroom. He
testified that he could hear the shower running, but when he
knocked on the door, there was no answer. Appellant then
returned to his own room.
B. THE FIRST DEFENSE MOTION UNDER M.R.E. 412
Prior to the presentation of evidence on the merits,
defense counsel provided notice under M.R.E. 412(c)(1) that the
defense intended to offer evidence at trial subject to M.R.E.
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United States v. Savala, No. 10-0317/NA
412. Pursuant to M.R.E. 412(c)(2), the military judge conducted
a hearing on the motion under Article 39(a), UCMJ, 10 U.S.C. §
839(a) (2006). During the hearing, defense counsel contended
that the evidence proffered in connection with the motion
constituted proof of an incident in which Seaman ARM had
fabricated an allegation of rape in the aftermath of sexual
activity in order to protect her reputation.
The prior incident took place in Virginia Beach a year
before the events leading to the charges in the present case.
The proffered evidence included a police report of the prior
incident, a sworn statement provided by Seaman ARM to the
investigators in the present case, and unofficial statements
made by the alleged perpetrator in the prior incident.
The police report concerning the prior incident noted that
Seaman ARM had been drinking at a private party, and that the
last thing she remembered before the alleged incident was
leaving the party at 3:30 a.m. The next thing she remembered
was being in her car, half dressed, outside of a gas station,
with an open condom in the back seat. She did not remember
having sexual intercourse, but she believed that sex had
occurred. The next day, she reported the event as a sexual
assault and provided police with the phone number of a person
she identified as having accompanied her when she left the
party. When the police interviewed the suspect, he admitted to
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having consensual sexual intercourse with Seaman ARM. He noted
that she had been intoxicated and generally flirtatious when he
arrived at the party and that she had initiated sexual contact
with him while in her car. According to the police report, when
the investigators explained the suspect’s version to Seaman ARM,
“she did not doubt that it could have happened that way, she
just does not remember.” The case disposition recorded the
report of sexual assault from Seaman ARM as “unfounded.”
During the investigation of the current case, Seaman ARM
made a sworn statement to investigators. In response to a
question of whether she had ever been sexually assaulted Seaman
ARM stated, “Yes . . . About a year ago . . . . I was sexually
assaulted by this guy named P[].” (First ellipsis in original.)
She added, “I told my dad that I needed to go to the hospital
and my sister took me. The hospital staff called [the] Virginia
Beach Police Department. Police responded and I filed a
complaint against P[].” When asked whether that case had gone
to trial, Seaman ARM stated, “Charges were never filed because
they told me it was a ‘he said she said’ case.”
According to the defense proffer, the individual accused of
the prior incident believed that Seaman ARM had fabricated the
rape charge to divert attention away from the fact that she was
found by police, half dressed, in a convenience store parking
lot after a night of drinking and drug use.
11
United States v. Savala, No. 10-0317/NA
During the Article 39(a) hearing, trial counsel stated
that, “The government opposes all mention of this Virginia Beach
incident.” Counsel argued that the incident was irrelevant to
the current case.
Relying on United States v. McElhaney, 54 M.J. 120(C.A.A.F. 2000), the military judge concluded that the proffered
evidence would require litigation of collateral issues and any
probative value of the evidence would be outweighed by its
prejudicial effect. The military judge ruled that mention of
the Virginia Beach incident would not be allowed during the
substantive portion of trial, but reserved the issue of whether
it would be allowed during any possible sentencing phase.
C. THE SECOND DEFENSE MOTION UNDER M.R.E. 412
During the Government’s case-in-chief, the prosecution
asked Seaman ARM about her delay in reporting the charged
incident as a rape. Seaman ARM replied that she did not “want
anybody to know,” adding that she “felt really kind of disgusted
and [she] just didn’t think that people would believe [her].”
The prosecution then asked, “Why didn’t you think people would
believe you.” Seaman ARM responded, “Because it had actually
happened to me before and it didn’t get resolved back in the
states.”
In a subsequent closed session under Article 39(a), UCMJ,
the defense contended that the Government’s question to Seaman
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United States v. Savala, No. 10-0317/NA
ARM about delayed reporting, which she addressed by referring to
the prior incident, had opened the door to cross-examination of
Seaman ARM about the earlier incident. Defense counsel
contended that once the prosecution relied on the prior incident
as the explanation for Seaman ARM’s delay in reporting the
incident as a rape, the defense was “now entitled to challenge
that and to challenge the credibility of that reason by
exploring the circumstances of the prior false allegation.”
In response, the prosecution contended that the examination
of Seaman ARM had not opened the door to such evidence, and
that, in any case the probative value of the evidence was
outweighed by the danger of unfair prejudice. The military
judge then ruled against the defense, stating:
Your request to go into it is denied.
The military judge determines on the basis of the
hearing, the previous hearing and during the course
today, that the evidence that the accused seeks to
offer is not relevant for the purpose of this session
and that the probative value of such evidence
outweighs [sic] the danger of unfair prejudice to the
alleged victim’s privacy.
And, further, specifically for the purpose in which it
arose has nothing to do with 412. There is no
relevancy of alleged victim’s sexual behavior, sexual
predisposition, which is prohibited under 412.
And, finally, the evidence, the exclusion of which
does not violate any constitutional rights of the
accused to cross-examine those matters when you weigh
the balancing test of all the evidence together.
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United States v. Savala, No. 10-0317/NA
The defense counsel inquired as to the scope of the
military judge’s ruling, asking, “So I can’t challenge the fact
that she is already educated on how to falsify a presentation in
a sexual assault examination, for example, based on prior
experience?” The military judge responded, “That’s correct.”
In a further inquiry, defense counsel asked whether the military
judge’s ruling meant that he could not “challenge her
credibility based on the facts and circumstances and lies that
she made the first time?” The inquiry led to the following
colloquy between the military judge and defense counsel:
MJ: Let me back up and just say I don’t get to
explain my rulings, counselor. I ruled, so –- and I
don’t get to explain and tell you how to try your
case.
Anything else?
CC: Sir, I do that because I want to be careful that
I’m doing things correctly.
MJ: You understand that you cannot get into any
sexual –- you cannot get into any matters under 412.
During the ensuing cross-examination of Seaman ARM, defense
asked various questions probing Seaman ARM’s motive and
propensity to lie, including making false statements on various
government forms. Pursuant to the ruling by the military judge
under M.R.E. 412, defense counsel did not ask any questions
regarding the earlier incident involving Seaman ARM’s prior
allegation of sexual assault.
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III. REVIEW IN THE COURT OF CRIMINAL APPEALS
On appeal, the Court of Criminal Appeals discussed the two
defense motions under M.R.E. 412. The court concluded that the
military judge erred in denying the second motion, irrespective
of the merits of the first motion, because “the evidence should
have been admitted when the Government opened the door to the
evidence at trial.” 2010 CCA LEXIS 9, at *14, 2010 WL 317687,
at *5.
After finding error, the court determined that the error
was harmless beyond a reasonable doubt, citing the “overwhelming
evidence of the appellant’s guilt.” Id. at *17, 2010 WL 317687,
at *7. The court noted that “the testimony of an alleged victim
is often the critical component of a successful prosecution for
rape,” but concluded that the present case required a different
view. Id. at *18, 2010 WL 317687, at *7. The court focused on
the testimony of Appellant’s friend, Seaman Townsel, “who
directly contradicted the appellant’s already implausible
version of the events,” particularly with respect to Appellant’s
description of his initial encounter at the door to Seaman ARM’s
room. Id. In addition, the court stated that “the presence of
DNA evidence, the testimony of the victim’s companion’s that
night, and the testimony of the appellant himself leave no room
to doubt that the appellant committed this crime.” Id. The
court also placed “great weight” on the fact that Appellant, by
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United States v. Savala, No. 10-0317/NA
his own admission, had not met Seaman ARM prior to knocking on
her door at 5:00 a.m. and “engaging in sexual intercourse with
her shortly thereafter.” Id. at *18-*19, 2010 WL 317687, at *7.
Viewing Appellant’s version of the events as “highly
implausible,” and as contradicted in important detail by Seaman
Townsel, the court concluded that further opportunity to cross-
examine Seaman ARM about her prior allegation of sexual assault
“would not have altered the outcome of the trial,” applying a
harmless beyond a reasonable doubt standard. Id. at *21-*23,
2010 WL 317687, at *8-*9. In that regard, the court noted that
the defense had the opportunity on cross-examination to inquire
into the fact that she was engaged, that she abused alcohol,
that she had promised her fiancé that she would stop drinking,
that she had broken this promise on the night of the incident,
and that she had been untruthful in filling out her security
clearance form. Id. at *23, 2010 WL 317687, at *9. The court
also addressed the credibility of Seaman Townsel, noting that
“he initially lied to the police and was himself a suspect.”
Id. The court discounted these considerations, stating that “we
believe that he had no real reason to lie at trial. Any
maladies in the version of events he presented to the police
were fully resolved prior to tr[ia]l. We find his testimony,
and not that of the appellant, to be credible.” Id.16
United States v. Savala, No. 10-0317/NA
IV. DISCUSSION
In the present appeal, Appellant contends that the court
below erred in its prejudice analysis. The Government contends
that the military judge did not err in his M.R.E. 412 rulings;
that the court below incorrectly found error; and that if there
was error, the court below correctly concluded that any error
was harmless beyond a reasonable doubt.
At the outset, we note that the Government has not appealed
the conclusion of the court below that the military judge erred
in denying the second defense motion under M.R.E. 412. “When a
party does not appeal a ruling, the ruling of the lower court
normally becomes the law of the case.” United States v. Parker,
62 M.J. 459, 464 (C.A.A.F. 2006). The law-of-the-case doctrine
involves the exercise of appellate discretion rather than
binding legal doctrine. See id. As this court has previously
noted:
[T]he law-of-the-case doctrine does not preclude this
Court from examining the legal ruling of a subordinate
court in a case where the Judge Advocate General has
not certified the issue. However, we are reluctant to
exercise this power and, as a rule, reserve it for
those cases where the lower court’s decision is
clearly erroneous and would work a manifest injustice
if the parties were bound by it.
United States v. Doss, 57 M.J. 182, 185 (C.A.A.F. 2002)
(citations and quotation marks omitted).
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The Government has not established in the present appeal
that “the lower court’s decision is clearly erroneous and would
work a manifest injustice.” Id. (citations and quotation marks
omitted). The lower court relied on the record of trial to
demonstrate that the prosecution introduced into evidence Seaman
ARM’s prior allegation of sexual assault. Savala, 2010 CCA
LEXIS 9, at *12-*13, 2010 WL 317687, at *5. The lower court
further relied on the record of trial to demonstrate that such
evidence bolstered Seaman ARM’s credibility with respect to the
reasons for her delayed reporting, thereby benefiting the
prosecution. Id. at *13-*16, 2010 WL 317687, at *6. Under
these circumstances, the lower court did not clearly err in
concluding that the prosecution opened the door to cross-
examination of Seaman ARM with respect to the prior incident.
Therefore, we shall proceed to address the granted issue, which
raises the question of whether the ruling by the military judge
constituted prejudicial error.
“We review the prejudicial effect of an erroneous
evidentiary ruling de novo.” United States v. Toohey, 63 M.J.
353, 358 (C.A.A.F. 2006). “For constitutional errors, the
Government must persuade us that the error was harmless beyond a
reasonable doubt.” United States v. Hall, 56 M.J. 432, 436
(C.A.A.F. 2002). In this case the constitutional error was a
violation of the Confrontation Clause. As the Supreme Court
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United States v. Savala, No. 10-0317/NA
noted while assessing the potential prejudicial impact of a
Confrontation Clause violation, “[w]hether such an error is
harmless in a particular case depends upon a host of factors.”
Van Arsdall, 475 U.S. at 684. The Court, in Van Arsdall,
identified five potential factors, without limiting a reviewing
court in the identification and application of factors in a
particular case. Id. (noting that factors could include, the
importance of the witness’s testimony to the government’s case,
whether the testimony was cumulative, the presence of
contradictory or corroborating evidence, the extent of other
cross-examination allowed, and the strength of the government
case). This Court has applied a four-part test in assessing
prejudice in the event of an evidentiary error, balancing (1)
the strength of the government’s case; (2) the strength of the
defense case; (3) the materiality of the excluded evidence; and
(4) the quality of the evidence in question. See, e.g., United
States v. Weeks, 20 M.J. 22, 25 (C.M.A. 1985); Hall, 56 M.J. at
437; Toohey, 63 M.J. at 358. Regardless of factors employed,
the balancing test involves consideration of 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.
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In the present case, the Government contends that its case
against Appellant was strong and that the Seaman ARM’s testimony
comprised only a small part of the evidence which led to the
conviction. The Government, like the court below, relies on
physical evidence, such as the presence of Appellant’s DNA in
the room and the malfunctioning lock on the door to Seaman ARM’s
room to support the Government’s theory that Appellant
unlawfully entered the room and sexually assaulted Seaman ARM.
The Government relies on the lower court’s view that Seaman
Townsel’s testimony, which contradicts Appellant’s testimony
about the onset of his entry in Seaman ARM’s room, provided
critical evidence upon which the panel could have convicted in
this case. 2010 CCA LEXIS 9, at *23, 2010 WL 317687, at *9.
Although the prosecution presented a strong circumstantial
case at trial, the defense identified significant facts for
consideration by the court-martial panel on the question of
whether the Government proved its case beyond a reasonable
doubt. Seaman ARM and Appellant were the only individuals
present at the time of intercourse. Her testimony was the
Government’s only direct evidence on the disputed issue of
consent. Seaman Townsel, the critical witness in the lower
court’s analysis, was not present when Appellant was inside the
room with Seaman ARM, and he had no knowledge of what transpired
between Appellant and Seaman ARM at the time of the charged
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acts. Moreover, the credibility of Seaman Townsel was placed at
issue by the fact that he had been an initial suspect, and by
the fact that he had misled law enforcement officials during the
initial investigation and subsequently changed his version of
the events. The question of delayed reporting by Seaman ARM,
and the impact on her credibility, was placed at issue by the
prosecution when the trial counsel interjected the issue of her
prior sexual assault allegation against another individual. The
prosecution’s physical evidence did not reflect any indication
of trauma.
Appellant, in his testimony, described the events of the
evening and his early morning encounter with Seaman ARM.
Although the circumstances may have been out of the ordinary,
the events he described were not so unusual as to warrant the
lower court’s dismissal of his testimony as being “highly
implausible” -- a characterization that led the court below to
treat Appellant’s version of the events as not worthy of
consideration by the court-martial panel.
The balance of factors on the question of prejudice
requires consideration not only of the strength of the
prosecution’s case, but the potential vulnerabilities on the
issue of reasonable doubt. The vulnerabilities included the
prosecution’s reliance on the testimony of Seaman Townsel, a
witness who had misled investigators about the underlying
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events, and who did not observe the sexual encounter at issue;
the hazy memory of Seaman ARM, impacted by her excessive
consumption of alcohol; and the issues concerning the
credibility of Seaman ARM, including her motive to lie and her
past deception in dealing with official records, and her delayed
reporting of the alleged rape. The Government’s circumstantial
evidence could not negate these vulnerabilities, including the
fact that Seaman ARM and Appellant provided conflicting
testimony about what happened at the critical time when they
were the only two people present. Under the circumstances,
assessment of credibility was a critical issue in the case. The
strength of the Government’s circumstantial case in other
respects does not overcome these considerations.
The responsibility at trial for determining whether to
believe the version of events provided by the prosecution or the
defense rested with the panel members, and the ruling by the
military judge enabled the prosecution to enhance the
credibility of its version while handcuffing the defense.
Issues of witness credibility and motive are matters for the
members to decide. United States v. Moss, 63 M.J. 233, 239
(C.A.A.F. 2006). When assessing prejudice, we assume that the
“damaging potential of the cross-examination were fully
realized.” Van Arsdall, 475 U.S. at 684. In that light, we
assume, without reaching a conclusion on the merits of the
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United States v. Savala, No. 10-0317/NA
charges at issue, that Appellant’s cross-examination could have
convinced the panel that the prior allegation was false. If the
members believed that Seaman ARM had made a prior false
allegation of rape it “may have tipped the credibility balance
in Appellant’s favor.” Moss, 63 M.J. 239. Under these
circumstances, the decision of the military judge to permit use
of the past event by the prosecution to enhance her credibility,
while denying the defense an opportunity to explore the impact
of that event on her credibility, constituted prejudicial error.
V. CONCLUSION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals as it concerns the convictions of rape,
unlawful entry, and adultery is reversed, and a rehearing is
authorized.
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United States v. Savala, No. 10-0317/NA
STUCKY, Judge, with whom BAKER, Judge, joins (dissenting):
I disagree with the majority’s application of the law of
the case doctrine in this case. I further do not believe that
the alleged error was prejudicial. Therefore, I respectfully
dissent.
I.
The United States Navy-Marine Corps Court of Criminal
Appeals (CCA) concluded that the military judge erred by barring
Appellant from cross-examining the prosecutrix, Seaman ARM.
United States v. Savala, No. 200800818, 2010 CCA LEXIS 9, 2010
WL 317687 (N-M. Ct. Crim. App. Jan. 28, 2010) (unpublished).
Nevertheless, the CCA held that the error was harmless beyond a
reasonable doubt and affirmed Appellant’s conviction for rape.
2010 LEXIS 9, at *17-*18, 2010 WL 317687, at *6-*7. The
Government did not appeal the CCA’s finding of error but
asserted as much in its reply to Appellant’s appeal. The
majority applies the law of the case doctrine to bar
consideration of this issue. United States v. Savala, __ M.J.
__ (17–18) (C.A.A.F. 2011).
The law of the case doctrine holds “that a decision
rendered in a former appeal of a case is binding in a later
appeal.” Black’s Law Dictionary 966 (9th ed. 2009). The
Supreme Court has made clear that just as the prevailing party
United States v. Savala, No. 10-0317/NA
at trial may assert on appeal any ground in support of a
judgment,
whether or not that ground was relied upon or even
considered by the trial court[,] . . . . [it] is
likewise settled that the appellee may, without taking
a cross-appeal, urge in support of a decree any matter
appearing in the record, although his argument may
involve an attack upon the reasoning of the lower
court or an insistence upon matter overlooked or
ignored by it.
Dandridge v. Williams, 397 U.S. 471, 475 n.6 (1970) (quotation
marks and citations omitted); accord Schiro v. Farley, 510 U.S.
222, 228-29 (1994) (“recogniz[ing] that the State, as
respondent, is entitled to rely on any legal argument in support
of the judgment below”).
This interpretation of the law of the case doctrine is
logical. It makes no sense to expect a party that prevails in a
lower court to appeal the judgment of that court. Such a
requirement would waste valuable attorney and judicial
resources. While I agree with the majority that the door was
opened to cross-examination of Seaman ARM, I would hold that the
Government was not barred by the law of the case doctrine from
contesting the issue.
II.
The majority holds that the military judge’s error in
prohibiting cross-examination of Seaman ARM on her previous
2
United States v. Savala, No. 10-0317/NA
allegation of rape was not harmless beyond a reasonable doubt.
I disagree.
“[T]he Constitution entitles a criminal defendant to a fair
trial, not a perfect one.” Delaware v. Van Arsdall, 475 U.S.
673, 681 (1986). Constitutional errors involving the denial of
an accused’s opportunity to impeach a witness will result in
reversal unless the error was harmless beyond a reasonable
doubt. “The correct 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.” Id. at 684. In
determining whether an error was harmless beyond a reasonable
doubt, we consider
a host of factors . . . . includ[ing] 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.
Id. In applying these factors, the Court’s overarching goal is
to determine “whether there is a reasonable possibility that the
evidence [or error] complained of might have contributed to the
conviction.” United States v. Moran, 65 M.J. 178, 187 (C.A.A.F.
2007) (brackets in original) (quotation marks and citation
omitted).
3
United States v. Savala, No. 10-0317/NA
III.
In this case, there was considerable testimony that Seaman
ARM was drinking and became heavily intoxicated. The evidence
also showed that Appellant and his friend, Seaman Townsel, went
to one of the same bars as Seaman ARM. Seaman Townsel spoke
with Seaman ARM for a few moments at the bar because they had
met the previous week. Appellant and Seaman ARM, conversely,
had never met and did not meet each other at the bar.
At approximately 4:30 A.M., Seaman ARM left a karaoke bar
to return to her barracks room. After leaving the bar,
Appellant convinced Seaman Townsel that they should go to Seaman
ARM’s room so that Seaman Townsel could speak with her. When
they arrived at Seaman ARM’s room, Appellant knocked on the
door, which was open. Seaman Townsel convinced Appellant to
leave because the room was dark and no one was answering the
door. The next morning Seaman ARM filed a report claiming she
had been raped the previous night by an unknown assailant.
Appellant readily admitted that he had sex with Seaman ARM, but
he contended that it was consensual. Seaman ARM testified that
it was not.
IV.
Seaman ARM’s testimony was important because she and
Appellant were the only witnesses to the sexual acts. Seaman
ARM admitted she was intoxicated and awoke to someone having sex
4
United States v. Savala, No. 10-0317/NA
with her whom she could not identify. Indeed the majority
relies on the victim’s “hazy memory” and “excessive consumption
of alcohol” to suggest that her testimony was unreliable, which
also tends to diminish the importance of her testimony.
Furthermore, Appellant impeached Seaman ARM’s credibility by
pointing out that she had lied on military forms and had broken
a no-alcohol pact with her fiancé. Other than limiting
questions about the previous rape allegation, the military judge
permitted Appellant full and free cross-examination of
Seaman ARM.
The evidence also corroborated some of Seaman ARM’s
testimony. She testified that she did not know Appellant, had
not invited him into her room, and had not consented to have sex
with him. In accord with Seaman ARM’s testimony, Seaman Townsel
and Appellant both testified that Appellant had never met nor
spoken with Seaman ARM before the night of the events. As
discussed below, Seaman Townsel also disputed Appellant’s
unsupported description of meeting Seaman ARM at her room.
The evidence further established that Appellant wanted to
contact Seaman ARM after leaving the bar, that he learned the
location of her room from Seaman Townsel, and that he knew her
door was not latched because it opened when he knocked on it. A
Naval Criminal Investigative Service agent later confirmed the
fact that Seaman ARM’s door would not properly latch.
5
United States v. Savala, No. 10-0317/NA
Furthermore, evidence, including expert testimony, indicated the
likelihood that Seaman ARM was still heavily intoxicated at the
time of the incident, which would explain her failure to respond
to a knock at the door or an unauthorized entrance into her
barracks room. The Government was thus able to provide a
convincing explanation for how Appellant gained access to Seaman
ARM’s room.
As the majority recognizes, “the prosecution presented a
strong circumstantial case at trial.” United States v. Savala,
__ M.J. __ (20). Although the strength of the case may depend
on whether the evidence is circumstantial or direct, a strong
case is a strong case regardless of the nature of the evidence.
Indeed, trial counsel provided a coherent and convincing picture
of Appellant’s criminal actions.
The strength of the Government’s case becomes more apparent
when contrasted with the weakness of Appellant’s case.
According to Appellant’s testimony, he knocked on Seaman ARM’s
door at some time after five in the morning with Seaman Townsel
nearby. Despite being quite intoxicated, Seaman ARM supposedly
came to the door, met Appellant for the first time, and told him
that although she was not interested in Seaman Townsel, whom
Appellant was attempting to speak highly of, she thought
“[Appellant] was cute” and wondered why “[he] wouldn’t talk to
her.” According to Appellant, he and Seaman ARM agreed he would
6
United States v. Savala, No. 10-0317/NA
return after he went back to his room to freshen up. When he
returned, the two had a short conversation, which, according to
Appellant, resulted in consensual sex.
Regardless of the plausibility of the story standing alone,
Appellant’s defense is weak because it is both (1) unsupported
by the evidence and, more importantly, (2) contradicted by
testimony from his friend Seaman Townsel, who testified that
they did not see Seaman ARM at her room and Appellant never
spoke with Seaman ARM in his presence. It is uncontradicted
that Seaman Townsel was present and in a location where he would
have heard any conversation had one occurred.
It is Seaman Townsel’s testimony that is critical in
assessing prejudice, as his testimony was the most damaging to
Appellant’s case. In finding prejudicial error, the majority
relies on the fact that Seaman Townsel’s credibility had been
called into question at trial based on his initial statements to
investigators concerning the incident: He claimed he saw an
unidentified person enter Seaman ARM’s room. Certainly the fact
that he changed his story is relevant to Seaman Townsel’s
credibility. But it might also be indicative of someone seeking
to deflect attention from himself or a friend. The members had
an opportunity to observe Seaman Townsel and consider his
testimony in light of all the other evidence before the court,
7
United States v. Savala, No. 10-0317/NA
including the fact that Appellant admitted having sex with
Seaman ARM.
Finally, cross-examination on the prior Virginia Beach
incident would not have bolstered Appellant’s attack on Seaman
ARM’s credibility. In that incident, Seaman ARM awoke from a
night of partying and could not remember what happened. The
circumstances suggested that someone had sexual intercourse with
her. She reported the incident as a rape. When confronted with
the alleged perpetrator’s version of events that it was
consensual, Seaman ARM admitted that the alleged perpetrator’s
version might be true, but she could not remember. That is not
a false statement. Without something more in the record, I fail
to see how the majority can conclude that the members could have
found anything false about the prior allegation. Under the
circumstances, evidence of the previous allegation would, if
anything, have bolstered her credibility with the court members:
When confronted with the evidence, she was able to evaluate the
facts and conclude that she may have been wrong in her
assessment of the situation. The excluded evidence would not
have “tipped the credibility balance in Appellant’s favor.”
United States v. Moss, 63 M.J. 233, 239 (C.A.A.F. 2006).
Regardless of whether the military judge erred in not
permitting Appellant to cross-examine Seaman ARM about her
previous rape allegation, such evidence would not have bolstered
8
United States v. Savala, No. 10-0317/NA
his anemic defense. I am confident that even if “the damaging
potential of the cross-examination were fully realized,” it
would not have affected Appellant’s conviction, and, therefore,
it was harmless beyond a reasonable doubt. See Van Arsdall, 475
at 684.
V.
I would affirm the judgment of the United States Navy-
Marine Corps Court of Criminal Appeals.
9