United States v. Whitney , 55 M.J. 413 ( 2001 )

UNITED STATES, Appellee
v.
Timothy S. WHITNEY, Technical Sergeant
U. S. Air Force, Appellant
No. 00-0555/AF
Crim. App. No. 32807
United States Court of Appeals for the Armed Forces
Argued November 15, 2000
Decided September 20, 2001
CRAWFORD, C.J., delivered the opinion of the Court, in
which SULLIVAN, GIERKE, EFFRON, and BAKER, JJ., joined. BAKER,
J., filed a concurring opinion.
Counsel
For Appellant: Lieutenant Colonel Timothy W. Murphy (argued);
Colonel James R. Wise and Captain Patience E. Schermer (on
brief); Major Thomas R. Uiselt.
For Appellee: Major Mitchel Neurock (argued); Colonel Anthony
P. Dattilo, Lieutenant Colonel Ronald A. Rodgers, and Major
Bryan T. Wheeler (on brief); Lieutenant Colonel William B. Smith
and Major Jennifer R. Rider.
Military Judge: Robin D. Wamsley
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Whitney, No. 00-0555/AF
Chief Judge CRAWFORD delivered the opinion of the Court.
A general court-martial composed of officer members
convicted appellant, contrary to his pleas, of rape, forcible
sodomy, assault, assault consummated by battery, and indecent
assault, in violation of Articles 120, 125, 128, and 134,
Uniform Code of Military Justice, 10 USC §§ 920, 925, 928, and
934, respectively. The convening authority approved the court-
martial’s sentence to a dishonorable discharge, confinement for
7 years, and reduction to the lowest enlisted grade. The Court
of Criminal Appeals found the simple assault and rape charges to
be multiplicious and dismissed the assault charge. That court,
in an unpublished opinion, directed that appellant receive 22½
days of credit towards service of his sentence to confinement
for prior punishment he received under Article 15, UCMJ, 10 USC
§ 815, for the indecent assault for which he was convicted.
Appellant’s pro se petitions to the Court of Criminal Appeals
for a new trial and reconsideration of its initial decision were
denied.
We granted review on the following issue:
WHETHER THE MILITARY JUDGE COMMITTED ERROR WHEN,
CONTRARY TO MILITARY RULE OF EVIDENCE 301(f)(3),
HE ADMITTED TESTIMONY THAT, WHEN QUESTIONED BY
AN INVESTIGATOR BEFORE TRIAL, APPELLANT ELECTED
TO REMAIN SILENT AND SUBSEQUENTLY, AFTER DISCOVERING
THE ERROR, MADE AN INADEQUATE AND UNTIMELY CURATIVE
INSTRUCTION.
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We hold that the investigator’s comment on appellant’s silence,
in violation of Mil.R.Evid. 301(f)(3), Manual for Courts-
Martial, United States (2000 ed.),* was error, but it was
harmless beyond a reasonable doubt.
FACTS
Appellant was the second highest ranking member of a 44-
person team performing temporary duty at Sembach Air Base,
Germany, in September 1996. During this temporary duty, he and
Airman First Class D, the victim of the rape, sodomy, and
assault consummated by battery, were billeted in rooms on the
second floor of a building. On September 21, 1996, Airman First
Class D was returning to her room after performing her duties.
On the way to her room, she encountered appellant, who was
standing in the hallway holding a beer. Appellant asked Airman
First Class D to come into his room. She complied because she
thought she was going to receive some corrective counseling.
Once she was in the room, appellant locked the door, turned out
the lights, and proceeded to rape and sodomize her while holding
a knife at her throat.
On November 14, 1996, appellant underwent a polygraph
examination conducted by Special Agent (SA) Hunter, Air Force
Office of Special Investigations (AFOSI). Appellant’s military
*
All Manual provisions are identical to the version in effect at the time of
appellant’s trial.
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defense counsel was present during the examination. For this
particular examination, military defense counsel and the AFOSI
specifically agreed that appellant would waive his rights under
Article 31(b), UCMJ, 10 USC § 831(b), and could be questioned
during the pre-polygraph interview as well as during the test
itself. The parties agreed that there would be no post-
polygraph interview.
At trial, SA Hunter was called as a prosecution witness.
Without differentiating between the pre-polygraph interview and
the post-polygraph interview, SA Hunter related appellant’s
version of what occurred on the night of September 21, 1996. In
short, appellant’s version was that the victim was the sexually
aggressive party, and the two had engaged in consensual sexual
intercourse and consensual sodomy. The following questions and
answers then took place:
TC: And at the conclusion of the interview, did you
confront Sergeant Whitney?
WIT: Yes, I did.
TC: What did you tell him?
WIT: I told him that I didn’t – did not feel he’d
been truthful in his answers.
Q: What did Sergeant Whitney tell you?
A: He did not say anything.
Q: Did he make –- after this, did the interview
continue?
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A: I escorted him to the door to exit; and on the way
out, he extended his hand and thanked me for doing a good
job.
TC: Thank you.
Trial defense counsel did not immediately object to this
line of questioning because this testimony, to the casual
observer, referred to the pre-polygraph interview. After the
questions by the prosecution, defense counsel clarified the
direct examination. Following further examination, two court
members asked virtually identical questions: “Why do you feel
TSgt Whitney was not truthful during the interview?” When the
trial counsel registered a written objection to the questions, a
session followed under Article 39(a), UCMJ, 10 USC § 839(a).
After learning at the Article 39(a) session that SA
Hunter’s opinion as to appellant’s untruthfulness was based on
his “evaluation” of the polygraph examination, the judge
sustained the objection. See United States v. Scheffer, 523
U.S. 303 (1998). Based on the witness’s response, the judge
said he would instruct the members to disregard that portion of
the testimony.
At the request of defense counsel, who thought it would be
better to clarify SA Hunter’s normal interview procedure for the
court, the military judge recalled the members and the following
ensued:
Q: Special Agent Hunter, you testified that you stated
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to Tech Sergeant Whitney that you felt he was not
being truthful, is that correct?
A: Yes, sir, I did.
Q: Is it your normal practice to make that statement to
the subject of a subject interview?
A: Yes, sir.
MJ: Now, to deal with two other issues. You’re to
disregard his testimony about the fact that Sergeant
Whitney didn’t respond to that. That is not
admissible evidence and I probably should have struck
it earlier. So, please do disregard that.
In regards to the questions by Captain Hansen and
Colonel Walgamott, which is the same question, ‘Why
did you feel that Tech Sergeant Whitney was not
truthful during the interview,’ that’s not a
permissible question. The reason being is
determination of truth is your realm, and nobody can
come in here and tell you whether or not someone is
being truthful. That’s purely up to you to decide.
PRES: Okay.
MJ: Any other questions by the members?
(Negative response by all members.)
DISCUSSION
There were two evidentiary errors in this case. First,
without objection, SA Hunter provided “human lie detector”
testimony. Second, contrary to Mil.R.Evid. 301(f)(3), SA Hunter
testified that appellant did not respond to the polygrapher’s
challenge that appellant was not being truthful.
“Human lie detector” testimony is inadmissible. See, e.g.,
United States v. Birdsall, 47 M.J. 404, 410 (1998). Furthermore,
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SA Hunter’s view that appellant was not being truthful reflects
the opinion of a polygrapher and is inadmissible evidence
pursuant to Mil.R.Evid. 707(a). As soon as he realized the
error, the military judge took two steps to correct the problem.
He recalled the members and, at the request of the defense
counsel, elicited from SA Hunter that Hunter’s challenge to
appellant (that he did not believe him), which precipitated the
unfortunate remark about appellant’s silence, was a routine
statement made to all subjects who had just finished making a
statement.
To further diminish the importance of SA Hunter’s
testimony, the military judge instructed the members that the
question concerning SA Hunter’s belief about appellant’s honesty
should never have been asked, and it was the members alone who
were the finders of fact and the adjudicators of truth. By
adding the instruction “. . . determination of truth is your
realm, and nobody can come in here and tell you whether or not
someone is being truthful. That’s purely up to you to decide,”
the military judge negated any question or inference that SA
Hunter’s opinion was either admissible or material evidence.
Mil.R.Evid. 301 implements the constitutional and statutory
privilege against self-incrimination. Rule 301(f)(3) provides
that the “fact that the accused during official questioning and
in exercise of rights under the Fifth Amendment to the
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Constitution of the United States or Article 31, remained
silent, refused to answer a certain question, requested counsel,
or requested that the questioning be terminated is inadmissible
against the accused.”
SA Hunter’s testimony that appellant did not respond to a
challenge to his truthfulness was admitted in violation of Rule
301(f)(3) and was an error of constitutional proportion. The
military judge, however, endeavored to cure this error by
admonishing the members to disregard this portion of SA Hunter’s
testimony. The curative measure taken by the military judge in
this case could have been clearer and more forceful. See United
States v. Garrett, 24 M.J. 413, 417 (CMA 1987). Nonetheless, the
president of the court acknowledged that he understood why two
members’ questions were not being asked, and he understood the
judge’s instruction to disregard testimony about appellant’s
silence. In the absence of contrary evidence, court members are
presumed to understand and follow the military judge’s
instructions. United States v. Holt, 33 M.J. 400, 408 (CMA 1991);
United States v. Loving, 41 M.J. 213, 235 (1994).
This is a case that involved testimonial error, objection
by counsel, and quick remedial action by the military judge.
Having reviewed the entirety of the evidence, to include the
victim’s credible, persuasive testimony, we are satisfied that
SA Hunter’s “human lie detector” testimony did not have a
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substantial influence on the findings. Kotteakos v. United
States, 328 U.S. 750, 765 (1946). We are also convinced beyond
any reasonable doubt that appellant was not prejudiced by SA
Hunter’s comment about appellant’s silence.
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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BAKER, Judge (concurring):
I agree with the majority opinion regarding the
remedial actions taken by the military judge in this case.
The military judge effectively performed his duty to ensure
a fair trial by promptly providing clear, curative
instructions in response to SA Hunter’s opinion regarding
appellant’s polygraph examination. The testimonial error
in this case was harmless, given the weight of the evidence
against appellant, including the testimony of the victim,
the improbability of appellant’s account, and testimony
regarding the victim’s post-rape behavior.
I write separately to emphasize that Wyrick v. Fields,
459 U.S. 42, 47 (1982), is both sword and shield. In
Wyrick, the Court concluded that “[d]isconnecting the
polygraph equipment effectuated no significant change in
the character of the interrogation” and, therefore,
Wyrick’s consent to a polygraph interview without counsel
present also constituted consent to the post-polygraph
interview without counsel present. Essential to the
Court’s finding of waiver in Wyrick was the Court’s
conclusion that Wyrick’s consent was voluntary and knowing,
and that he intelligently waived his right to counsel.
Wyrick also understood that he had the right to stop
questioning (of any sort) at any time, and this
United States v. Whitney, 00-0555/AF
understanding was reflected in writing, in plain language.
Further, the Court’s holding is limited to a specific
right, the Fifth Amendment right to counsel. The Court
expressly declined to address the dissent’s argument that
the questioning violated Wyrick’s Sixth Amendment right to
counsel, since those issues were not before the Court. Id.
at 49.
As the Court in United States v. Scheffer, 523 U.S.
303, 312 (1998), reminded, Mil.R.Evid. 707, Manual for
Courts-Martial, United States (2000 ed.), is a per se rule
against the introduction of polygraph evidence at courts-
martial. Further, the Court’s ruling in Scheffer relied in
part on the conclusion that only reliable evidence should
be admitted into evidence, and “there is simply no
consensus that polygraph evidence is reliable.“ Id. at
309.
For these reasons, and in light of Wyrick, military
judges should take great care to ensure that any waiver of
rights associated with a polygraph examination is
voluntary, knowing, and intelligent, which means among
other things that the accused knows and understands which
rights are being waived. Military judges and counsel must
also carefully watch the 707 backdoor to ensure, as Judge
Wamsley did in this case, that allusions to polygraph
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examinations are immediately addressed and omitted from
evidence. In light of the clarity of Scheffer and
Mil.R.Evid. 707, intentional and inadvertent references to
polygraph examinations elicited by counsel should not
occur.
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