United States v. Dimberio , 56 M.J. 20 ( 2001 )

Chief Judge CRAWFORD

delivered the opinion of the Court.

Contrary to his pleas appellant was convicted by military judge alone of assault with means likely to produce grievous bodily harm. The convening authority approved the sentence of a bad conduct discharge, nine months’ confinement, total forfeitures and reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed the findings and sentence. 52 MJ 550 (1999). We granted review of the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY REFUSING TO ADMIT CONSTITUTIONALLY REQUIRED DEFENSE EXPERT EVIDENCE FROM A FORENSIC PSYCHIATRIST ABOUT AN ALTERNATIVE PERPETRATOR THAT WAS AN INDISPENSIBLE ELEMENT OF APPELLANT’S DEFENSE, EVIDENCE WHICH SHOULD MOST CERTAINLY HAVE BEEN ADMITTED UNDER EXISTING MILITARY LAW AND WHICH WOULD HAVE MOST CERTAINLY BEEN ADMITTED IN MANY OTHER FEDERAL AND STATE COURTS.

FACTS

Appellant’s wife brought their newborn (4 week old) son, Jarod, to the emergency room of United Hospital in the civilian community at about 7:30 a.m. on the morning of February 3, 1997. Jarod was seen by Dr. Richard Wacksman, a critical care physician, who testified that he observed severe trauma to the child including bruises to the nose and extensive retinal hemorrhages (R. 219-223). Jarod’s skull contained a subdural hematoma and his brain continued to swell after admission (R. 224, 231). Dr. Wacksman testified that there was no medical cause for the injuries and that they were consistent with “non-accidental injury.” (R. 239).

LtCol. (Dr.) Gael Lonergan, a pediatric radiologist, testified that an examination of the computerized topography scans of Jarod’s brain showed a large amount of blood in the brain, a level normally only seen in serious automobile accidents (R. 452). Dr. Lonergan testified that the child’s injuries were so serious that the brain had atrophied. Based on her review of the record of the CAT scans she concluded that Jarod had been violently shaken (R. 454).

Appellant’s wife, Nicole, testified that the night of 2-3 February, 1997 she had some friends in for a party. This was the first time she or her husband had entertained friends following the birth of Jarod on 6 January 1997. This party continued most of the night. Nicole testified that at about 10:00 p.m. she had put Jarod to bed and fed him a bottle (R. 156). The child was sleeping in the same bed that she and her husband used (R. 154-155). She also testified that sometime between 12:30 a.m. and 2:30 a.m. she heard Jarod crying. She went upstairs, changed his diaper and fed him a bottle (R. 163). Jarod did not take his bottle well. Mrs. Dimberio then “propped”¹ the bottle and left the child so she could return to her company (R. 164). This took no more than 15 minutes (R. 165)

Appellant did not testify on the merits. Therefore the chronology of his movements is established through the testimony of other witnesses. That evidence established that appellant went to bed sometime between 12:30 a.m. and 4:30 a.m., but clearly after his wife had fed the child a second time (R. Ill, 165 349, 392). He was tired from being in the field and had consumed no alcohol during the evening (R. 157, 346 359).

No one heard anything further from the child until sometime between 5:30 and 6:30 a.m. All of the witnesses testified Jarod began to cry loudly about that time. (R. Ill, 523). In fact the crying was so strong that it caused Mrs. Dimberio to begin to lactate although she had stopped nursing the child several days before (R. 173).² One of the guests testified that the crying was originally like “a newborn’s cry” but that it quickly became a hysterical cry (R. 395).

Nicole went upstairs and found dried blood and abrasions on the child’s face (R. 115). Appellant told her that he had rolled over on the child (R. 117). No one in attendance at the party could recall seeing the injuries prior to that time (R. 320, 323, 361, 384). One of the guests testified that when Nicole brought the child downstairs she observed blood on the child’s nose and on the collar of his shirt (R. 354, 358, see also R. at 400).

Mrs. Dimberio testified that she quickly brought the child downstairs. She called the base hospital but received no response. She then called the civilian hospital (United) and spoke with a Dr. Bock (R. 175-177). While Dr. Bock indicated there was no cause for alarm, Mrs. Dimberio thought she should take the child to the hospital. Appellant told his wife that she was overreacting (R. 177). Nicole insisted and a friend, AMN Beck, drove her and the child to the hospital (R. 178). Appellant did not accompany them, saying that he needed to attend to the family dog, who had been outside in the subzero temperature and could not be found before the trip was made to the hospital. R. 191. But he did go to the hospital later (R. 115, 521).

Mr. Ramberg, Chief Investigator for the Grand Forks County Sheriffs Department, testified that he arrived at United Hospital about 10:15 a.m. At about 11:30 a.m. he interviewed Nicole Dimberio, and he then interviewed appellant (R. 102, 109-110). He did not warn appellant of his rights as appellant was not a suspect at that time (R. 110). During this interview, appellant merely related that he went to bed about 12:30 a.m. because he was tired and not feeling well (R. 111) . He woke up about 6:00 a.m. when his baby began to cry (R. 111). Appellant told Mr. Ramberg that he picked the child up and tried to feed it. However, the child would not take a bottle and continued to cry. At that point Nicole came into the room and turned on the light. This was the first time that appellant saw any blood on the child. He told Mr. Ramberg that he may have rolled over on the child during the night (R. 112) .

Two days later, appellant was again interviewed at a different hospital in Fargo, North Dakota, by Investigator Ramberg. Also present at this interview was OSI Agent Gallegos. Appellant was read and waived his Article 31 UCMJ, 10 USC § 831 rights. At this interview appellant said he was awakened when the baby started crying. He remembered putting his forearm against the child to keep him (appellant) upright while he checked the baby. According to appellant this pressure on the baby lasted for about 5 seconds. (R. 114.) Prior to this second interview on February 5, appellant had been told that “rolling over on the child would not cause brain damage.” (R. 115.) Although appellant continued to maintain he could have rolled over on the baby during the night, he now admitted to putting a forearm on the back of Jarod’s head and applying pressure (R. 118). At no point during either interview with Investigator Ramberg did appellant indicate that he thought his wife may have been the cause of Jarod’s injuries (R. 117).

At some point prior to trial, appellant’s defense counsel learned that Nicole Dimberio had a history of treatment for various mental health issues. Defense counsel requested, and the military judge granted, the appointment of an expert to assist the defense in reviewing Mrs. Dimberio’s medical records. This expert, Dr. Sharbo, concluded that Mrs. Dimberio suffered from an unspecified personality disorder with narcissistic, histrionic, and borderline traits. (App. Ex. XXXV at 9.) He also found that Nicole suffered from stress and on occasion would act without thinking. Importantly, he did not find, nor did the defense contend, that Nicole was likely to act out violently or had a history of such actions.

At trial on October 21,1997, defense counsel made a proffer that experts in the field of psychiatry would testify that an individual who has “anger control and stress control issues” might shake a baby. R. 48. “[Shaken baby syndrome ... is due to a momentary loss of control due to stress [on] the care giver.” Id. “The stress related factors can be anything, either involving the child itself or external stress related factors that are going on in the care giver’s life at that particular time.” Id. The defense requested that

Dr. Wacksman and other experts in the field ... testify about that shaken baby syndrome and their experience of the cause as it is the result of stress and typically is not a premeditated event. I think that is relevant to go to the state of mind of the accused and the issue on the specific intent to grievously injure his son. Id.

After some questioning, the military judge ascertained that the linkage between the above proffered testimony and the accused was that defense counsel intended to introduce character evidence that appellant was a peaceful individual and calm in stressful situations. R. 49. See also R. 461, 471, 478-79. According to the defense theory, testimony that shaken baby syndrome was generally not a premeditated act, coupled with appellant’s character evidence, would negate the specific intent requirement of the charged aggravated assault. After additional discussion, defense counsel revealed that another purpose behind its desire for expert testimony was to admit the psychological history of Nicole Dimberio under Mil.R.Evid. 404(b). R. 52. In support of this position, counsel introduced the legislative history behind Fed. R.Evid. 413-15, and an article on the subject. App. XXXII.

At a conference more than a day later, defense counsel offered Appellate Exhibit XXXV which was styled as a supplemental funding request for forensic psychiatrist David A. Sharbo and a request to appoint Dr. Sharbo as an expert witness. A part of this appellate exhibit was a two-page memorandum written by Dr. Sharbo as a result of his examination of Nicole Dimberio. He found:

Diagnoses:

Axis II: Personality Disorder, NOS with narcissistic, histrionic and borderline traits

Axis I: Alcohol Dependence, In Sustained Partial Remission, still drinking alcohol

Axis I: Eating Disorder NOS with binge, purge & restriction, In Remission

1. Nicole Dimberio fully meets DSM IV diagnostic criteria for the above three mental disorders.

2. Narcissistic traits address pervasive patterns of grandiosity, need for admiration and lack of empathy.

3. Histrionic traits address patterns of excessive emotionality and attention seeking.

4. Borderline traits refer to patterns of instability in interpersonal relationships, self-image, affects and impulsivity.

5. She has a history of instability in nurturing relationships throughout her formative years. This is a contributing factor to difficulty maintaining healthy relationships in adult life.

6. Shifting back and forth between homes to meet her own desires while in school fostered subsequent impulsivity and difficulty in relationships.

7. Her previous history of poor impulse control and self destructive behavior includes eating disorder, alcoholism and suicide attempt by poisoning.

8. We have only her word for the amount she drank that night (2 beers.) Denial/minimization is characteristic of individuals with addictive disorder's in general and alcoholism in particular.

9. This is an individual that would not be expected to handle stressful situations well.

App. Ex. XXXV.

This proffer and request by defense counsel for the admission of Dr. Sharbo’s testimony in accordance with his two-page diagnosis, was actively opposed by the trial counsel. The military judge said he was not adverse to allowing expert testimony, but:

There is no evidence, zero evidence, that she (meaning Nicole Dimberio) has acted out violently toward any baby. There is no evidence that she has acted out violently against her own baby. There is zero evidence that when she gets in a stressful situation that she acts out violently and it would be necessary in the court’s opinion for you to have that connection and have that opinion in order to solicit this information---- I, quite frankly, see Nicole Dimberio, based on simply what I have heard in a courtroom, as certainly someone who meets a number of these characteristics; that she doesn’t handle stressful situations well is pretty evident from listening to the testimony in terms of her reaction. But, what you are missing, in the court’s opinion, is the connection between stressful situations and violence or the impulsivity and violence.

R. 500.

The military judge also found that the mere fact that Nicole may have yelled at someone under a stressful situation should be excluded under Mil.R.Evid. 408. Id. The judge also stated he would not allow an extrapolation of Nicole’s different behavioral characteristics into testimony before the panel. R. 501.

Defense counsel responded that because shaken baby syndrome was not normally a premeditated act, the defense did not have to “show the link between stress and acting out and violence.” R. 501. According to defense counsel, he merely had to show a link between the state of mind of Mrs. Dimberio through her impulsive personality traits with the expert testimony that the shaken baby syndrome negates a premeditated act. R. 502. In response the judge noted that if there had been evidence of violent acting out with children in the past, he would have entertained admitting the evidence pursuant to MiLR.Evid. 402(b). R. 502-03. There was no evidence of such in this case.

DISCUSSION

It is undeniable that a defendant has a constitutional right to present a defense. In Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), the Court held that compulsory due process includes both the right to compel the attendance of defense witnesses and the right to introduce their testimony into evidence. In United States v. Robinson, 39 MJ 88, 89 (CMA 1994), this Court stated that the Equal Protection Clause, Due Process Clause, and the Manual for Courts-Martial each provide that service-members are entitled to expert assistance when necessary for an adequate defense. United States v. Garries, 22 MJ 288, 291 (CMA 1986).

However, the Constitution does not confer upon an accused the right to present any and all types of evidence at trial, but only that evidence which is legally and logically relevant. See Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). Appellant seeks the admission of Dr. Sharbo’s testimony under Mil.R.Evid. 401-405 and 702-703.

Rules 401-404 set forth what is legally and logically relevant. Rule 401 defines logically relevant evidence as “evidence ... having any tendency and reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” However, even though the evidence is logically relevant, it may be excluded as not legally relevant if “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members, or by considerations of undue delay____” Rule 403.

Rules 404 and 405 set forth rules concerning the introduction of character evidence including what constitutes proper character evidence and the mode the proof. What constitutes “character evidence”? “Character is a generalized description of a person’s disposition, or of the disposition in respect to a general trait, such as, honesty, temperance or peacefulness.” McCormick on Evidence § 195 at 686 (5th ed.1999). Rule 404(a) provides in pertinent part “evidence of a person’s character or a trait of a person’s character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except as otherwise limited.”

The Advisory Committee notes:

circumstantial use of character is rejected but with important exceptions: (1) an accused may introduce pertinent evidence of good character (often misleadingly described as “putting his character in issue”), in which event the prosecution may rebut with evidence of bad character; (2) an accused may introduce pertinent evidence of the character of the victim, as in support of a claim of self-defense to a charge of homicide or consent in a case of rape, and the prosecution may introduce similar evidence in rebuttal of the character evidence, or, in a homicide case, to rebut a claim that deceased was the first aggressor, however proved; and (8) the character of a witness may be gone into as bearing on his credibility. McCormick §§ 155-161. This pattern is incorporated in the rule. While its basis lies more in history and experience than in logic, an underlying justification can fairly be found in terms of the relative presence and absence of prejudice in the various situations. Falknor, Extrinsic Policies Affecting Admissibility,' 10 Rutgers L.Rev. 574, 584 (1956); McCormick § 157. In any event, the criminal rule is so deeply imbedded in our jurisprudence as to assume almost constitutional proportions and to override doubts of the basic relevancy of the evidence.

The Advisory Committee notes, Rule 404.

Thus, this rule provides that circumstantial use of character evidence is impermissible except for the three exceptions noted above.³

Mil.R.Evid. 405(a) provides that, whenever “evidence of character or a trait of character of a person is admissible, proof may be made ... by testimony in the form of an opinion.” While the commentators are divided whether the opinion testimony like that proffered by the defense implicates a character trait⁴. We will assume character evidence is broader than defined by McCormick and includes psychiatric diagnosis or personality disorders. Such evidence would not fit within the exceptions to Mil.R.Evid. 404(a). However, that does not answer the question because if the evidence is otherwise legally and logically relevant under Rules 401 through 403 the defendant has a constitutional right to introduce the evidence. However, in order for the evidence to be admissible, appellant has the burden of by making an adequate proffer or presentation of evidence. Mil.R.Evid. 103⁵.

The “substance of the evidence” that was part of the proffer has to be made known or be “apparent from the context.” Mil.R.Evid. 103(a)(2). This can be done through a stipulation, through direct examination, or through a proffer. In any event, any of those methods must encompass the foundational requirements. See Edward J. Imwinkelried, Evidentiary Foundations (2d ed.1989).

If part of a proffer is admissible and part inadmissible, the offering party must single out the admissible part, otherwise the evidence shall be held inadmissible. Collins v. Seaboard Coast Line, R.R., 675 F.2d 1185, 1194 (11th Cir.1982); Dente v. Riddell, Inc., 664 F.2d 1, 2 n. 1 (1st Cir.1981). Stated differently, if a party makes a proffer of evidence that is partly admissible and partly inadmissible without limiting the proffer, the party cannot complain on appeal if the court, as it did here, excludes the entire offer. Paddack, et al. v. Christensen, et al., 745 F.2d 1254, 1260 (1984); United States v. West, 670 F.2d 675, 683 (7th Cir.1982); United States v. Stout, 667 F.2d 1347, 1353-54 (11th Cir.1982).

Rules such as Mil.R.Evid. 403 and 404(a) that exclude evidence from criminal trials do not abridge an accused’s constitutional right to present a defense so long as they are not arbitrary or disproportionate to the purposes they are designed to serve. Evidence may be excluded even though of probative value if “its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice.” Michelson v. United States, 335 U.S. 469, 476, 69 S.Ct. 213, 93 L.Ed. 168 (1948). See also Jaffee v. Redmond, 518 U.S. 1, 9, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996) (“sufficiently important interest” may outweigh right to present probative evidence); United States v. Clemons, 16 MJ 44, 50 (CMA 1983)(Everett, J., eoneurring)(“In some situations there are strong public policies that favor excluding certain types of relevant evidence.”).⁶ To rise to the level of constitutional error, a ruling must have infringed upon a weighty constitutional interest of the accused. See United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998).

Character may be proved by either reputation evidence,⁷ opinion evidence ⁸ or evidence of specific instances of conduct.⁹ Is the evidence admissible as character evidence under Rule 404(a)? If not, is it constitutionally required to be admitted? Or should it be admissible under the 700 rules?

The defense did not offer an appropriate foundation for the introduction of reputation or opinion type evidence. United States v. Breeding, 44 MJ 345, 350-51 (1996). See also United States v. Toro, 37 MJ 313, 317 (CMA 1993); United States v. Tomchek, 4 MJ 66 (CMA 1977). Both lay and opinion evidence is admissible on personality traits. The expert in this case had not known Mrs. Dimberio long enough to have formed a traditional opinion as to her character or to have heard about her reputation in the community but could express an expert opinion as to the patient’s mental condition. Id. Nor did the defense offer specific instances of conduct by Mrs. Dimberio. Thus, under Mil.R.Evid. 404-405, the evidence set forth in App. Ex. XXXV was inadmissible as the court below held, 52 MJ at 558-69.

Nor was there a sufficient proffer under Rules 401-405 and the 700 series. We normally think of these traits as traits that are relevant to the offense charged, that is honesty in a larceny case or law-abidingness in any case. However, the defense in this case seeks to introduce evidence, App. Ex. XXXV, as a mental disorder under the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV)(4th ed.1994). This evidence may very well be relevant if the defense establishes that individuals with certain diagnoses confronted with certain situations may respond in a similar consistent way. While circumstantial proof of conduct may very well be relevant, it has more complex inferential problems that require a sufficient basis in a first instance.

As to Mil.R.Evid. 702-703, Mil. R.Evid. 103, requires an adequate proffer as to expert testimony that includes the following:

1. Qualifications of the expert

2. The subject matter of the expert testimony

3. Basis for expert testimony

4. Legal relevance of the evidence

5. Reliability of the evidence, and

6. Probative value of the testimony.

See United States v. Houser, 36 MJ 392, 397. See also United States v. Griffin, 50 MJ 278, 283 (1999), United States v. Combs, 39 MJ 288, 290 n. 1 (CMA 1994); United States v. Banks, 36 MJ 150, 161 (CMA 1992).¹⁰ Assuming the qualifications of the expert, what is missing here is an adequate proffer that this evidence of Mrs. Dimberio’s mental health problems had a nexus or link to behavioral traits of acting out and violence.

It is difficult to exempt biophysical facts from mental disorders. However, in any event the proponent must satisfy the Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), reliability standard. An unreliable test is not sufficiently legally relevant. The question is whether traits exist and whether they are manifested in certain situations. Like other scientific theories, the expert would have to show that these character traits do react similarly in certain situations satisfying the Daubert rules. Even an individual with certain characteristics may have internal self-monitoring which may or may not cause them to act similarly in various situations. Some legal scholars who have engaged in exhaustive research have even questioned the use of character evidence. Lawson, Credibility in Character: A Different Look at an Indeterminable Problem, 50 Notre Dame Law. 758 (1975). Appellant did not proffer evidence that a person with his wife’s personality trait would act out in a violent manner.

The defense did not cite any case or rule that would have allowed the introduction of expert testimony concerning Mrs. Dimberio’s condition and her likelihood of being the perpetrator. If, as the defense contends, that it is so apparent, then no evidence would be needed on the topic. However, this Court has stressed over the years the six Houser steps that are a predicate to introducing expert testimony. The defense did not attempt to meet these steps.

If the defense had satisfied Rules 401-405 and 702-703, the evidence would still be inadmissible under 403’s¹¹ balancing test.¹² In the absence of character evidence that Mrs. Dimberio’s mental health was tied to violence, including prior violent acts, the introduction of a mental health diagnosis that she did not handle stress well was both speculative and potentially confusing to the members. Nor was the proffer “precise in describing limitations” as to the potential expert testimony. Cf. United States v. St. Jean, 45 MJ 435, 444 (1996): “We note that there is an enormous difference between asserting that persons who bear certain characteristics are likely to have committed crime (as appellant seeks to argue), and asserting that persons who manifest particular characteristics are likely to have a certain mental state or condition (as was at issue in St. Jena).” We hold that the military judge did not abuse his discretion by excluding the evidence under Rule 403.

Notwithstanding the exclusion of Dr. Sharbo’s testimony, appellant did present his defense to the court members through other means. Through the cross-examination of Mrs. Dimberio, appellant showed that she had been alone with Jarod for three days while appellant was out in the field, just prior to the 2nd of February (R. 182). Further, through Dr. Garman’s testimony, appellant was able to show that Nicole Dimberio was stressed and nervous on the morning of February 3rd and “had the smell of alcohol about her.” (R. 485-486). The only area which appellant’s defense counsel was not allowed to explore was Nicole Dimberio’s mental health diagnosis and its link to the baby.

In view of the foregoing, the military judge did not abuse his discretion as the “evidentiary gatekeeper” by excluding Mrs. Nicole Dimberio’s mental health diagnosis. See General Electric Company v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997); United States v. Schlamer, 52 MJ 80 (1999); United States v. Miller, 46 MJ 63 (1997).

Accordingly, the decision of the United States Air Force Court of Criminal Appeals is affirmed.

1 . Nicole Dimberio explained that by “propping” the bottle, she meant that she placed the child in the bed and left the bottle so he could nurse it without assistance.

2 . Appellant and his wife had a baby monitor in the room so the child's crying was heard by their guests who were downstairs.

3 . Mil.R.Evid. 404(a)(2) is "taken from the Federal Rule with minor changes.” Mil.R.Evid. 404(a)(2), Drafters' Analysis, Manual, supra, at 22-34. Mil.R.Evid. 404(a)(3) is the same as Fed. R.Evid. 404(a)(3). Id.

4 . See e.g., Weinstein, Federal Evidence, § 405.04[2][c] at 405-28 through 405-29; C. Mueller & L. Kirkpatrick, Federal Evidence, § 101 at 551-52 (2d ed.1994).

5 . Taken from Fed.R.Evid. 103 "with a number of changes.” Mil.R.Evid. 103, Drafters’ Analysis, Manual for Courts-Martial, United States, 2000, at A22-2.

6 . Cf. Elkins v. United States, 364 U.S. 206, 234, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960)(Frankfurt-er, J., dissenting) (“Limitations are properly placed upon the operation of this general principle [society is entitled to every man’s evidence] only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normal predominant principle of utilizing all rational means for ascertaining truth.”).

7 . Mil.R.Evid. 405(a). Same as the Federal Rule. Id. See also Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948).

8 . Id.

9 . Mil.R.Evid. 405(b). Taken without change from Fed.R.Evid. 405(b). Mil.R.Evid. 405(b), Drafters’ Analysis, Manual, supra, at 22-35.

10 . The Supreme Court of the United States set out a similar analysis in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

11 . Mil.R.Evid.

12 . Same as Fed.R.Evid. 403. Mil.R.Evid. 403, Drafters’ Analysis, Manual, supra, at A22-34.