United States v. Moss , 63 M.J. 233 ( 2006 )

UNITED STATES, Appellee
v.
Kirk A. MOSS, Technical Sergeant
U.S. Air Force, Appellant
No. 05-0545
Crim. App. No. 35379
United States Court of Appeals for the Armed Forces
Argued February 7, 2006
Decided June 21, 2006
CRAWFORD, J., delivered the opinion of the Court, in which
GIERKE, C.J., and EFFRON, BAKER, and ERDMANN, JJ., joined.
Counsel
For Appellant: Captain Anthony D. Ortiz (argued); Colonel
Carlos L. McDade and Lieutenant Colonel Mark R. Strickland (on
brief).
For Appellee: Captain Jefferson E. McBride (argued); Lieutenant
Colonel Robert V. Combs, Lieutenant Colonel Gary F. Spencer, and
Captain Jin-Hwa Frazier (on brief); Major John C. Johnson.
Military Judge: Ann D. Shane
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Moss, No. 05-0545/AF
Judge CRAWFORD delivered the opinion of the Court.
Contrary to his pleas, Appellant was convicted by a general
court-martial, consisting of officer and enlisted members, of
carnal knowledge, sodomy with a child,1 and indecent acts with a
child, in violation of Articles 120, 125, and 134, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. §§ 920, 925, 934 (2000).
Appellant was sentenced to a bad-conduct discharge, seven years
of confinement, forfeiture of all pay and allowances, and
reduction to the lowest enlisted grade. The convening authority
approved the sentence as adjudged and the United States Air
Force Court of Criminal Appeals affirmed the findings and
sentence. United States v. Moss, No. ACM 35379, 2005 CCA LEXIS
139, at *12, 2005 WL 1017585, at *5 (A.F. Ct. Crim. App. Apr.
14, 2005) (unpublished). This Court granted review on the
following issue:
WHETHER APPELLANT WAS DENIED MEANINGFUL CROSS-
EXAMINATION OF GOVERNMENT WITNESSES IN VIOLATION OF
HIS SIXTH AMENDMENT RIGHT OF CONFRONTATION WHEN THE
MILITARY JUDGE REPEATEDLY PREVENTED TRIAL DEFENSE
COUNSEL FROM CONFRONTING THE ALLEGED VICTIM AND OTHER
WITNESSES WITH IMPEACHMENT EVIDENCE ADMISSIBLE UNDER
MIL. R. EVID. 608.
For the reasons explained herein, the decision of the Court
of Criminal Appeals is reversed.
1
Appellant was charged with rape and forcible sodomy with a
child. He was convicted of the lesser included offenses of
carnal knowledge and sodomy with a child by exceptions and
substitutions.
2
United States v. Moss, No. 05-0545/AF
Facts
At the time of the offenses, Appellant was a thirty-six-
year-old technical sergeant with eighteen years of service, and
he was married with four children. On July 27, 2000, Appellant
was traveling via motorcycle from Pensacola, Florida, to his
home in Tampa, Florida, with his fourteen-year-old niece by
marriage, KLVD, so that she could spend some time with his
family. The two stopped for the night at Tyndall Air Force Base
where they shared a billeting room. The room contained a single
queen-size bed. The uncontroverted evidence was that they slept
in the same bed. According to KLVD, during the night Appellant
fondled her breast and thighs, penetrated her vagina with his
fingers, licked her vagina, and had sexual intercourse with her.
Appellant, who testified at trial, denied any sexual contact
with KLVD.
In March 2001, KLVD first reported this incident when her
mother picked her up from the Baptist Behavioral Center in
Little Rock, Arkansas, where she had received psychological
treatment following an attempted suicide. Between the date of
the alleged assault and the date KLVD first reported a sexual
assault to her mother, KLVD had been in three mental
institutions for both inpatient and outpatient care as a result
of behavior problems and suicide attempts.
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At trial, the Government filed a motion in limine seeking
to limit the cross-examination of KLVD, her mother, and other
witnesses to exclude certain past acts or conduct. The
Government sought to exclude:
(1) KLVD’s use of alcohol and drugs after the rape.
(2) KLVD’s two suicide attempts, one with pills and the
other with a shotgun, in addition to instances where she
threatened suicide.
(3) KLVD’s friends’ use of alcohol and drugs.
(4) General acts of disobedience, which included sneaking
out late at night, getting caught with boys, lying to her
parents, having parties without authorization, destruction
of property at the mental institution, and conduct that
resulted in removal or expulsion from school.
Appellant’s trial defense counsel opposed the motion in limine
stating that the past acts should be admitted under Military
Rule of Evidence (M.R.E.) 608(c) as relevant to show bias and a
motive to misrepresent.
The trial defense counsel asserted that he wanted to cross-
examine KLVD, her mother, and the Government expert regarding
these acts because he wanted to establish what the “punishment”
and consequences to KLVD were for these actions in order to show
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United States v. Moss, No. 05-0545/AF
that KLVD had motive to fabricate.2 The trial defense counsel
wanted to reinforce this theory by showing that after the rape
report, the relationship between KLVD and her parents improved.
The trial defense counsel also wanted to question KLVD
regarding the prior false statements she made on various
occasions to her parents, school officials, and mental health
professionals. Some of these false statements were evidenced in
KLVD’s mental health records. The defense argued that this
evidence was probative of KLVD’s truthfulness and was admissible
under M.R.E. 608(b).
Ultimately, the military judge granted the Government’s
motion to preclude the defense from presenting the bias evidence
because she could not find a logical connection to the defense
theory for admissibility:
I’m saying that the logic breaks down for me as to why
she would make -- the fact that she’s been expelled
from school and is in trouble with her mother, her
mother has spanked her or whatever, would create a
situation where, logically, she would make an
allegation against the accused in this particular
case. It doesn’t -– I’m not persuaded that there’s
even any logical connection there, that one could even
make that argument.
Discussion
M.R.E. 608(c) allows for evidence to show bias, prejudice,
or any motive to misrepresent through the examination of
2
After one incident of misconduct, KLVD’s mother beat her with a
belt. The beating left marks on KLVD’s thighs and buttocks and
ultimately resulted in intervention from Family Services.
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United States v. Moss, No. 05-0545/AF
witnesses or extrinsic evidence.3 United States v. Bahr, 33 M.J.
228, 232 (C.M.A. 1991) (citing Delaware v. Van Arsdall, 475 U.S.
673, 684 (1986)). This Court has held that rules of evidence
should be read to allow liberal admission of bias-type evidence.
United States v. Williams, 40 M.J. 216, 218 (C.M.A. 1994). When
the military judge excludes evidence of bias, the exclusion
raises issues regarding an accused’s Sixth Amendment right to
confrontation. United States v. Bins, 43 M.J. 79, 84 (C.A.A.F.
1995).
Where the Sixth Amendment’s right to confrontation is
allegedly violated by a military judge’s evidentiary ruling, the
ruling is reviewed for an abuse of discretion. See United
States v. Israel, 60 M.J. 485, 488 (C.A.A.F. 2005). If an abuse
of discretion is found, the case will be reversed unless the
error is harmless beyond a reasonable doubt. Id.; see also
Bahr, 33 M.J. at 231 (where an error constitutes a violation of
an appellant’s constitutional rights, this Court will reverse
the findings of the court below unless we find the error was
harmless beyond a reasonable doubt (citing Van Arsdall, 475 U.S.
at 684)). “A defendant’s right under the Sixth Amendment to
cross-examine witnesses is violated if the military judge
3
The use of extrinsic evidence can be limited if it is
collateral to an important trial issue or its relevance is not
established. United States v. Gonzales, 16 M.J. 423, 425
(C.M.A. 1983); United States v. Hunter, 17 M.J. 738, 739
(A.C.M.R. 1983).
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United States v. Moss, No. 05-0545/AF
precludes a defendant from exploring an entire relevant area of
cross-examination.” Israel, 60 M.J. at 486 (citing United
States v. Gray, 40 M.J. 77, 81 (C.M.A. 1994)). Relevant
evidence is “evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without
the evidence.” M.R.E. 401. “The partiality of a witness . . .
is ‘always relevant as discrediting the witness and affecting
the weight of his testimony.’” Davis v. Alaska, 415 U.S. 308,
316 (1974) (quoting 3A John Henry Wigmore, Evidence § 940, at
755 (Chadbourn rev. 1970)).
We hold that the military judge’s exclusion of the
proffered evidence denied Appellant his fundamental right of
confrontation and cross-examination. We address next the offers
of proof and the relevance and admissibility of the evidence
under M.R.E. 608(c).
M.R.E. 608(c)4
This case revolves around the conflicting testimony of
Appellant and the alleged victim. When an appellant claims a
violation of the Confrontation Clause on the grounds that he was
prohibited from conducting an otherwise appropriate cross-
4
Appellant also raised an issue regarding the military judge’s
ruling on the admissibility of evidence under M.R.E. 608(b). In
light of our ruling regarding the admissibility of the M.R.E.
608(c) evidence, we do not address whether the military judge
was correct in her rulings excluding the M.R.E. 608(b) evidence.
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United States v. Moss, No. 05-0545/AF
examination designed to show a witness’s bias, the appellant has
the burden of showing that a reasonable jury might have reached
a significantly different impression of the witness’s
credibility if the defense counsel had been able to pursue the
proposed line of cross-examination. Van Arsdall, 475 U.S. at
680. In this case, Appellant argues that trial counsel
attempted to portray KLVD as an innocent victim with little or
no problems beyond being a “normal” teenager. The trial defense
counsel wanted to respond to this assertion by showing that
KLVD’s past acts were relevant to her motive to fabricate and
that she fabricated the alleged rape to cast herself as a victim
to gain favorable treatment from her parents and to improve her
relationship with them. At trial and before this Court,
Appellant relies on Bahr. In Bahr, 33 M.J. 233, this Court
found that the military judge erred by suppressing the
prosecutrix’s statements that she hated her mother when it was
offered to show a motive to fabricate the rape accusation
against her stepfather.
Here, the military judge rejected the evidence because she
did not find it relevant to Appellant’s theory based on the Bahr
case. The military judge stated:
If the allegation had been made against the alleged
victim’s father, for example, or the mother’s
boyfriend, for example, and it was the mother’s
boyfriend who was on trial here, then I could follow
the defense counsel’s logic . . . . I’ve not heard any
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United States v. Moss, No. 05-0545/AF
evidence that would bring the accused into the picture
at all, as to why he would be a logical target for her
to make that allegation against.
In overlooking the greater theory of admissibility, the military
judge erred.
As a result of the military judge’s ruling, the defense did
not have the ability to attack the allegations by KLVD or
present evidence to show why KLVD fabricated or embellished the
true nature of the situation that occurred in the billeting
room. The defense was not allowed to show that KLVD was
constantly in trouble with alcohol, drugs, and general
misconduct, that her friends were involved in similar conduct,
and that her mother had became more restrictive on her liberty.
Appellant was not allowed to show that KLVD was unhappy with the
restrictive, controlling environment she was under and that, as
a result, KLVD had a motive to misrepresent the event with
Appellant in order to change her own present circumstances.
In this case, the testimony of KLVD was the heart of the
Government’s proof for the charges. There was no other evidence
to corroborate the sexual misconduct. Appellant admitted to
sleeping in the same bed as his niece in just his underwear;
however, that act alone does not establish the elements of
carnal knowledge or sodomy. There was no dispute that KLVD did,
or was involved with, the conduct or acts the defense wanted to
present. There was also no dispute that KLVD experienced
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United States v. Moss, No. 05-0545/AF
certain repercussions or responses from her parents and the
school system as a result of her conduct. The case is a “he
said/she said” scenario, revolving around the testimony of
Appellant and the alleged victim.
A reasonable panel might have reached a significantly
different impression of KLVD’s credibility had the defense been
able to present the excluded evidence. As asserted by the
defense, KLVD may have misrepresented the event with her uncle
in order to deflect attention away from herself or change her
situation. The defense’s primary purpose in seeking the
admission of this evidence was to argue that the evidence
indicated that KLVD was getting more adverse attention from her
parents, school, and the counseling system than she wanted. The
defense would have argued that KLVD was seeking ways to divert
the focus from herself and her conduct and that being a “victim”
was a way of accomplishing this. The defense could also argue
that KLVD did gain more empathy from her mother, at school, and
in the counseling system. This was the defense’s primary
purpose in arguing for admission of this evidence.
The evidence supporting the defense’s theory that KLVD
fabricated the allegation was that there was tension between
KLVD and her mother and that on one occasion, KLVD’s mother beat
her, causing bruises that resulted in intervention by Family
Services. There was evidence that KLVD’s mother and her aunt,
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United States v. Moss, No. 05-0545/AF
Appellant’s wife, were very close. The defense also posited
that KLVD wanted to hurt her mother and divert her mother’s
attention away from her by “driving” a “wedge between mom and
sister.” According to the defense, KLVD may not have been
directly trying to hurt her uncle, but trying to hurt her
mother. Although this was not the defense’s strongest theory
for admission of the evidence, collectively, this theory may
have supported the defense’s theory that KLVD fabricated the
allegations in order to deflect unwanted attention away from
herself and problems with her parents and school.5
Likewise, the lower court erred by affirming the ruling of
the military judge. The lower court focused on our ruling in
Bahr, noting that: “[I]n this case the relationship between the
victim’s mother and the appellant was much more remote than in
Bahr.” 2005 CCA LEXIS 139, at *9, 2005 WL 1017585, at *3. This
overlooks the fact that a reasonable juror could have been
convinced by the defense’s theory that KLVD had a motive to
fabricate a story and could have, therefore, formed a
significantly different impression of KLVD’s credibility.
5
See Gray, 40 M.J. at 81 (military judge erred in precluding
evidence that supported the defense theory that the appellant’s
subordinate was the initial target of the Texas Department of
Human Services (DHS) investigation and that the subordinate and
his wife accused the appellant of sexual misconduct with the
wife “in order to shift DHS attention from their own
dysfunctional and abusive family situation”).
11
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Pursuant to M.R.E. 608(c), the defense should have been
allowed to cross-examine KLVD and her mother on their
relationship, including allegations of beatings, KLVD’s alcohol
and drug use, KLVD’s removal from school, KLVD’s suicide
attempts, and her “general acts of disobedience.” These topics
should not have been off-limits during cross-examination because
they supported a viable defense theory as to why KLVD would
fabricate the rape allegations. Moreover, the evidence was
relevant as a response to the Government’s theory presented at
trial that the delay in reporting the incident for approximately
seven months was because KLVD did not want to cause a break in
the relationship between her mother and her aunt and did not
want to hurt the family. The defense theory that she fabricated
the allegations to get the focus off her misbehavior during that
period of time rebuts this theory raised by the prosecution.
M.R.E. 403
Admission of the specific acts is “still dependent upon the
military judge properly evaluating the evidence’s probative
value against its potential for unfair prejudice as measured by
Rule 403.” 2 Stephen A. Saltzburg et al., Military Rules of
Evidence Manual § 608.02[3][a], at 6-52 (5th ed. 2003).
Therefore, in this case, the evidence must pass a M.R.E. 403
balancing test before it can be admitted.
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United States v. Moss, No. 05-0545/AF
The probative value of the evidence in this case is high.
The evidence directly fits the defense theory for which it would
have been offered. On the other hand, the risk of unfair
prejudice in this case is fairly low. Although the evidence was
probative to the defense theory, it was a double-edged sword
that also could have hurt Appellant’s case. When viewed in
context of the timing of the events, KLVD’s prior bad acts could
be seen as evidence of post traumatic stress disorder stemming
from the alleged rape.6 Thus, the danger of unfair prejudice in
this case does not significantly outweigh the probative value of
admitting the evidence.
Harmless Beyond a Reasonable Doubt
In determining whether or not the erroneous exclusion of
evidence is harmless, this Court considers:
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.
Bahr, 33 M.J. at 234 (quoting Van Arsdall, 475 U.S. at 684.
Interestingly, the trial counsel argued during her closing
argument that the defense was unable to attack KLVD’s
credibility and that “the only thing that [the defense] could
6
The actions cited in the motion in limine all occurred after
the alleged rape but before KLVD came forward.
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United States v. Moss, No. 05-0545/AF
come up with” was inconsistencies in KLVD’s testimony and her
prior statements. The trial counsel acknowledged that there was
no medical evidence, no eyewitness, and that the case “boils
down to the credibility of the two witnesses.” As a result of
the military judge’s erroneous ruling, the defense had no way of
showing bias or motive to misrepresent based upon what was going
on in KLVD’s life during the seven months between the overnight
stay at Tyndall Air Force Base and when KLVD reported the
alleged sexual assault. The defense lost its ability to attack
the Government’s only evidence against Appellant.
We hold that Appellant’s rights to cross-examine the
witnesses called against him and to present his defense were
improperly limited by the military judge’s ruling. This case
was a credibility contest between Appellant and KLVD. Appellant
acknowledged in his pretrial statement that he drank beer,
allowed KLVD to sip a beer, and that he climbed into bed with
KLVD to sleep, wearing nothing but his underwear. Although
these facts are circumstantial evidence of sexual misconduct,
whether the members could conclude there was sexual intercourse
and sodomy depended on whether they believed Appellant or KLVD.
It is impossible to say whether evidence that could have been
used to attack the credibility of KLVD would have raised some
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doubt as to whether KLVD’s version of the event was accurate.7
The military judge’s ruling essentially deprived Appellant of
his best defense, which was to demonstrate KLVD’s bias and to
meaningfully challenge her credibility. It is the members’ role
to determine whether a prosecutrix’s testimony is credible or
biased.8 The weight and credibility of the Government’s main
witness are matters for the members alone to decide. Bins, 43
M.J. at 85. Since the excluded evidence may have tipped the
credibility balance in Appellant’s favor, we find that the error
was not harmless beyond a reasonable doubt.
Conclusion
The decision of the United States Air Force Court of
Criminal Appeals is reversed. The findings of guilty and the
sentence are set aside. The record of trial is returned to the
Judge Advocate General of the Air Force. A rehearing is
authorized.
7
United States v. Tippy, 25 M.J. 121, 122 (C.M.A. 1987) (when a
military judge erroneously precluded relevant evidence, this
Court concluded that it “will not be satisfied unless impartial
triers of fact, imbued with the full knowledge of this OSI
conduct, tested by the crucible of cross-examination and
confrontation, properly instructed in the laws of entrapment,
and applying their good judgment, common sense, understanding of
life and the ways of young men and manipulative agents, conclude
beyond a reasonable doubt that he is guilty”).
8
See Olden v. Kentucky, 488 U.S. 227, 232 (1988) (“It is plain
to us that ‘[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.’” (quoting Van Arsdall, 475
U.S. at 680)).
15