United States v. McCollum , 58 M.J. 323 ( 2003 )

UNITED STATES, Appellee
v.
Terry MCCOLLUM, Staff Sergeant
U.S. Air Force, Appellant
No. 02-0474
Crim. App. No. 34324
___________________________________________________________
United States Court of Appeals for the Armed Forces
Argued November 6, 2002 and February 5, 2003
Decided June 24, 2003
BAKER, J., delivered the opinion of the Court, in which GIERKE,
EFFRON, and ERDMANN, JJ., joined. CRAWFORD, C.J., filed a
separate concurring opinion.
Counsel
For Appellant: Major Jefferson B. Brown (argued); Colonel
Beverly B. Knott, Major Maria A. Fried, Major Terry L.
McElyea, and Major Jeffrey A. Vires (on brief).
For Appellee: Major Linette I. Romer (argued); Lieutenant
Colonel LeEllen Coacher, and Lieutenant Colonel Lance B.
Sigmon (on brief).
Military Judge: Linda S. Murnane
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION
United States v. MCCOLLUM, No. 02-0474/AF
Judge BAKER delivered the opinion of the Court.
Appellant was tried by a general court-martial
composed of a military judge alone. Contrary to his pleas,
Appellant was convicted of rape, indecent acts with a child
under the age of 16, and carnal knowledge, on divers
occasions in violation of Articles 120 and 134, Uniform
Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§
920, 934 (2000), respectively. Appellant was sentenced to
a dishonorable discharge, eighteen years' confinement, and
reduction to E-1. The convening authority approved the
sentence as adjudged. The Air Force Court of Criminal
Appeals affirmed the findings and sentence. United States
v. McCollum, 56 M.J. 837 (A.F. Ct. Crim. App. 2002). We
granted review on the following issues:
I
WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL
ERROR BY REQUIRING THE ABSENCE OF APPELLANT
DURING THE TESTIMONY OF AN ALLEGED VICTIM (CS),
IN VIOLATION OF APPELLANT’S CONSTITUTIONAL RIGHT
TO CONFRONT HIS ACCUSER, WHEN THERE WAS NO BASIS
TO SUPPORT SUCH A RULING.
II
WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL
ERROR BY DENYING THE DEFENSE’S MOTION TO SUPPRESS
AND HOLDING THAT CERTAIN STATEMENTS MADE BY
APPELLANT TO HIS WIFE DID NOT FALL WITHIN THE
PRIVILEGE FOR CONFIDENTIAL MARITAL
COMMUNICATIONS.
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Subsequent to holding oral argument on these issues on
November 6, 2002, we specified the following additional
issue:
IS THERE A “DE FACTO CHILD” EXCEPTION TO THE HUSBAND-
WIFE PRIVILEGE UNDER THE MILITARY RULES OF EVIDENCE,
AND, IF SO, IS IT APPLICABLE TO THE PRESENT CASE?
On Issue I, we affirm the Court of Criminal Appeals.
The military judge did not violate Appellant’s Sixth
Amendment right to confront a witness against him by
allowing CS to testify outside of Appellant's presence.
The military judge correctly applied Military Rule of
Evidence [hereinafter M.R.E.] 611(d) consistent with
Maryland v. Craig, 497 U.S. 836 (1990). In addition, the
military judge properly protected the other aspects of
Appellant’s confrontation rights.
On Issue II, we conclude that Appellant’s statements
were privileged under M.R.E. 504(b)(1). We also hold that
there is no de facto child exception to M.R.E.
504(c)(2)(A). As such, because MW was not a biological
child or a legally recognized child or ward of Appellant or
his wife, RM, Appellant’s statements were not admissible
under that exception and should have been excluded. The
military judge therefore abused her discretion by admitting
those statements. Nevertheless, for the reasons discussed
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below, we affirm Appellant’s conviction because any errors
committed by the military judge were harmless.
Issue I: Right to Confront Witnesses
A. Factual Background
In 1999, Appellant met SK over the Internet.
Eventually, the two began a romantic relationship and, at
Appellant’s request, SK and her four children moved from
Connecticut to Seymour Johnson Air Force Base, North
Carolina, to live with him in his base housing. Because of
the number of people in the house, SK’s 11-year old
daughter, CS, slept on the couch in the living room. One
night, SK awoke, entered the living room, and found
Appellant naked, sexually aroused, and poised over CS. SK
testified that “as I approached him even more, I saw him
naked and her panties were down and he was kissing on her
and I just exploded in an outrage.” Some days later,
during an argument, Appellant admitted to SK to having
sexually assaulted CS on another occasion. SK then called
the police and reported that Appellant had raped CS.
Appellant was thereafter charged with rape and
indecent acts with a child, in violation of Articles 120
and 134. At one point during Appellant’s trial, trial
counsel moved to allow CS, then 12 years old, to testify
from a remote location via two-way closed circuit
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television, as authorized by M.R.E. 611(d). Defense
counsel contested the motion, arguing that trial counsel
had not met the requirements of M.R.E. 611(d)(3) and Craig.
Defense counsel also argued that there was insufficient
evidence to establish that CS would suffer such trauma that
she would be unable to testify in Appellant’s presence.
Allowing CS to testify outside of Appellant’s presence,
asserted defense counsel, would therefore violate
Appellant’s Sixth Amendment right to confront a witness
against him. In the alternative, Appellant volunteered to
withdraw from the courtroom during CS’s testimony, as
permitted by M.R.E. 611(d)(4), if the military judge found
that the requirements of M.R.E. 611(d)(3) and Craig had
been met.
During a hearing on the motion, trial counsel called
Ms. Joan Prior, a licensed clinical social worker, as an
expert to testify about the potential harm to CS from
having to testify in Appellant’s presence. Ms. Prior had
counseled CS 11 or 12 times in weekly sessions. The
military judge accepted Ms. Prior as an expert in the field
of diagnosing and treating children who have been sexually
abused, and allowed her to testify about CS’s expected
response to testifying in front of Appellant.
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In her testimony, Ms. Prior opined that CS would
suffer emotional harm if required to testify in Appellant’s
presence. Testifying in front of Appellant, she stated,
would cause CS to “decompensate” or “function in a more
disorganized way . . . . She would become highly agitated,
her anxiety would increase so that her level of functioning
would change overall. She might have a reoccurrence of
nightmares, she might become more withdrawn.” She added
that it could setback her healing process and reactivate
some of the symptoms of CS’s Post Traumatic Stress Disorder
(PTSD). While noting that testifying in court, by itself,
would be harmful to CS, Ms. Prior added that the harm would
be “extremely” aggravated if Appellant were present. When
asked about CS’s desire to testify in Appellant’s presence,
Ms. Prior explained that although CS wanted to testify in
front of Appellant, doing so would be, in her opinion,
“detrimental to her.” Finally, in response to the military
judge’s questions about whether CS had expressed any fear
of Appellant, Ms. Prior testified, without objection, that
CS had told her that she was afraid Appellant would beat
her if she ever told anyone about the abuse.
Based on Ms. Prior’s testimony, the military judge
found that CS “would be traumatized if required to testify
in open court in the presence of the accused.” CS, the
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military judge said, “is unable to testify in open court
because of the presence of the accused because of her fear
the accused would beat her.” This fear, stated the
military judge, causes CS “emotional trauma.” Therefore,
she held that trial counsel had met the requirements of
M.R.E. 611(d)(3)(A) and Craig. The military judge then
granted the Government’s motion to have CS testify from a
remote location by two-way closed circuit television. The
military judge, however, explained that if Appellant chose
to absent himself from the courtroom, CS would have to
testify in the courtroom as required by M.R.E. 611(d)(4).
When trial counsel called CS to testify, Appellant
informed the military judge that he wanted to withdraw from
the courtroom. After determining that Appellant’s choice
was voluntarily made and that he understood his right to be
present in the courtroom during the entire trial, the
military judge granted his request to withdraw and ordered
that CS testify in the courtroom. The military judge,
however, ensured that Appellant would be able to view the
proceedings via closed circuit television and allowed him
to communicate with his counsel by telephone at all times
during CS’s testimony.
The military judge ultimately convicted Appellant of
raping CS and engaging in indecent acts with her.
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Appellant appealed his conviction to the Air Force Court of
Criminal Appeals, arguing that the military judge violated
his Sixth Amendment right to confront a witness against him
by not allowing him to be present during CS’s testimony.
McCollum, 56 M.J. at 838. The Court of Criminal Appeals
affirmed the military judge’s decision, concluding that
there was “ample evidence” to establish that the military
judge, “applying the criteria of both M.R.E. 611(d)(3) and
Craig, properly found that the child was unable to testify
because of her fear of [A]ppellant.” Id. at 840. This
conclusion, together with the fact that CS “testified under
oath, and was subjected to cross-examination by opposing
counsel, in the presence of the court-martial, and in the
view of [A]ppellant and his counsel,” led the lower court
to conclude that Appellant had not been denied his right to
confront CS. Id. at 841.
On appeal before this Court, Appellant maintains that
the military judge applied M.R.E. 611(d) in such a way as
to deprive him of his Sixth Amendment right to confront a
witness against him. He argues that CS’s fear and her
trauma resulted from testifying generally, and not, as the
military judge found, from Appellant’s presence. Appellant
also contends that the military judge should have
questioned CS, or allowed defense counsel to question CS,
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before making her M.R.E. 611(d) ruling. In addition,
Appellant claims that “the ‘fear’ that the military judge
found existed--that Appellant would beat CS--was
unreasonable.” Finally, Appellant asserts that the
military judge erred when she found that CS would suffer
more than de minimis trauma from testifying in his
presence.
B. Sixth Amendment Confrontation Case Law
The Confrontation Clause of the Sixth Amendment
guarantees that “[i]n all prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses
against him.” The Supreme Court has explained that this
right contains several protections:
[T]he right guaranteed by the Confrontation
Clause includes not only a “personal
examination,” but also “(1) insures that the
witness will give his statements under oath -
thus impressing him with the seriousness of the
matter and guarding against the lie by the
possibility of a penalty for perjury; (2) forces
the witness to submit to cross-examination, the
‘greatest legal engine ever invented for
discovery of the truth’; [and] (3) permits the
jury that is to decide the defendant’s fate to
observe the demeanor of the witness in making his
statement, thus aiding the jury in assessing his
credibility.
Craig, 497 U.S. at 845-46 (quoting California v. Green, 399
U.S. 149, 158 (1970)). Although each of these protections
serves to “ensure the reliability of the evidence against a
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United States v. MCCOLLUM, No. 02-0474/AF
criminal defendant,” the Court has stressed that an
accused’s right to physical, face-to-face confrontation
with witnesses against him forms the core of the
Confrontation Clause. See id. at 844-50; Coy v. Iowa, 487
U.S. 1012, 1016 (1988)(noting that although there is “some
room for doubt” about whether the clause protects against
the admission of out-of-court statements or restricts the
scope of cross-examination, the Court has “never doubted .
. . that the Confrontation Clause guarantees the defendant
a face-to-face meeting with witnesses appearing before the
trier of fact.”).
Despite the Confrontation Clause’s emphasis on
physical, face-to-face confrontation, it is not an absolute
right. Craig, 497 U.S. at 844-50. The Supreme Court in
Craig provided the following guidance for analyzing
exceptions to physical confrontation:
That the face-to-face confrontation requirement
is not absolute does not, of course, mean that it
may be easily dispensed with. As we suggested in
Coy, our precedents confirm that a defendant’s
right to confront accusatory witnesses may be
satisfied absent physical, face-to-face
confrontation at trial only where denial of such
confrontation is necessary to further an
important public policy and only where the
reliability of the testimony is otherwise
assured.
Id. at 850 (citations omitted). Therefore, Craig stands
for the proposition that a witness may testify out of an
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United States v. MCCOLLUM, No. 02-0474/AF
accused’s presence only where the trial court finds (1)
that there is an important public interest that will be
served by denying physical confrontation, (2) that such
denial is necessary to further that interest, and (3) that
other measures will ensure the reliability of the
testimony.
In Craig, the Court determined that society has an
important public interest in “the physical and
psychological well-being of a minor victim.” Id. at 852.
Hence, it held, “if the State makes an adequate showing of
necessity, the state interest in protecting child witnesses
from the trauma of testifying in a child abuse case is
sufficiently important to justify the use of a special
procedure that permits a child witness in such cases to
testify at trial against a defendant in the absence of
face-to-face confrontation with the defendant.” Id. at
855.
The Court also explained the essential aspects of a
finding of necessity in cases where the physical or
psychological well being of a child witness is at stake.
The showing of necessity, determined the Court, must not be
a generalized one. The trial judge must make a case-
specific finding that testimony outside the presence of the
accused is “necessary to protect the welfare of the
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particular child who seeks to testify.” Id. Moreover,
denial of face-to-face confrontation is only necessary to
protect a child witness from trauma where “it is the
presence of the defendant that causes the trauma.” Id. at
856. Finally, before a court denies an accused the right
to confront a witness face-to-face, “the trial court must
find that the emotional distress suffered by the child
witness in the presence of the defendant is more than de
minimis, i.e., more than ‘mere nervousness or excitement or
some reluctance to testify.’” Id. (quoting Wildermuth v.
State, 530 A.2d 275, 289 (Md. 1987)). While the Court
declined to establish a minimum level of distress necessary
for a child witness to testify outside of the accused's
presence, it upheld a Maryland law allowing such a
procedure where a judge finds that the child will suffer
“’serious emotional distress such that the child cannot
reasonably communicate[.]’” Id. at 856 (quoting Md. Code
Ann. Cts. & Jud. Proc. § 9-102 (1989)).
In our most recent application of Craig, we echoed
these requirements when we upheld a military judge’s
decision to let two child witnesses testify behind a screen
because they were unable to testify in the accused’s
presence. See United States v. Anderson, 51 M.J. 145, 150
(C.A.A.F. 1999).
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C. M.R.E. 611(d)
In response to Craig and subsequent to this Court’s
decision in Anderson, M.R.E. 611 was amended in 1999 to
include subsection (d). Executive Order No. 13,140, 64
Fed. Reg. 55, 115 (Oct. 12, 1999). As a result, this is
our first occasion to consider the amended rule. M.R.E.
611(d) is similar to 18 U.S.C. § 3509(b)(1) (2000), a
federal provision enacted in the wake of Craig, which
authorizes a child to testify via two-way closed circuit
television when certain conditions are met. See United
States v. Daulton, 45 M.J. 212, 218 (C.A.A.F. 1996); United
States v. Moses, 137 F.3d 894, 897-98 (6th Cir. 1998);
United States v. Garcia, 7 F.3d 885, 887-88 (9th Cir.
1993).
M.R.E. 611(d)(3), like § 3905(b)(1)(B), authorizes
remote live testimony
where the military judge makes a finding on the
record that a child is unable to testify in open
court in the presence of the accused, for any of
the following reasons:
(A) The child is unable to testify because of
fear;
(B) There is substantial likelihood, established
by expert testimony, that the child would
suffer emotional trauma from testifying;
(C) The child suffers from a mental or other
infirmity; or
(D) Conduct by an accused or defense counsel
causes the[ ]child to be unable to continue
testifying.
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However, M.R.E. 611(d) does not allow the use of remote
live testimony where the accused voluntarily withdraws from
the courtroom during the child’s testimony, as the military
judge correctly concluded in this case. See M.R.E.
611(d)(4).
Appellant argues that M.R.E. 611(d)(3) “differs in key
respects” from the statute upheld in Craig. He asserts
that the rule can only pass “constitutional muster” if we
read certain language into it, as the Supreme Court did to
the Maryland statute in Craig, and as the 9th Circuit did
to § 3509 in Garcia. Specifically, Appellant asserts that
M.R.E. 611(d)(3) is constitutional as applied only if (1)
the military judge finds that the child witness will suffer
such trauma that he or she will be unable to testify; and
(2) the potential trauma or fear causing trauma is the
result of an accused’s presence.
M.R.E. 611(d) was adopted to “give substantive
guidance to military judges regarding the use of
alternative examination methods for child victims and
witnesses in light of the U.S. Supreme Court’s decision in
Maryland v. Craig, 497 U.S. 836 (1990) and the change in
Federal law in 18 U.S.C. section 3509.” Manual for Courts-
Martial, United States (2002 ed.) [hereinafter MCM],
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Analysis of the Military Rules of Evidence A22-48
[hereinafter Drafter's Analysis]. Prior to the addition of
M.R.E. 611(d), it was unclear whether § 3509 applied to
courts-martial. See Daulton, 45 M.J. at 218-19 ; United
States v. Longstreath, 45 M.J. 366, 372 (C.A.A.F. 1996).
It therefore follows that we should interpret M.R.E. 611(d)
consistently with Craig.
M.R.E. 611(d)(3) authorizes the use of remote live
testimony where “the military judge makes a finding on the
record that a child is unable to testify in open court in
the presence of the accused[.]” (Emphasis added.) Apparent
in this language is Craig’s requirement that the inability
to reasonably testify result from the presence of the
accused and not the overall court experience. Moreover, we
interpret this language, in light of Craig, as limiting the
use of remote live testimony to situations where the
military judge makes a finding that the child witness would
suffer more than de minimis emotional distress from
testifying in the accused’s presence, whether brought on by
fear or some form of trauma.1 In other words, under M.R.E.
611(d)(3), such distress must be sufficiently serious that
it would prevent the child from reasonably testifying.
1
We do not address Military Rule Evidence 611(d)(3)(C) or (D)
[hereinafter M.R.E.] as they are inapplicable in the present case.
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Whether such a standard is required as a matter of
constitutional law is an issue the Court did not address in
Craig. It is sufficient for our purposes in this case to
note that the standard established in M.R.E. 611(d)(3) is
similar to that upheld in Craig.
Our conclusion that M.R.E. 611(d)(3) must be
interpreted in light of Craig is consistent with the manner
in which federal circuits have interpreted the parallel
language of § 3509 to include the necessity requirements of
Craig. See Moses, 137 F.3d at 898; United States v. Rouse,
111 F.3d 561, 568-69 (8th Cir. 1997); Garcia, 7 F.3d at
888. In Garcia, for example, the Ninth Circuit Court of
Appeals addressed the constitutionality of § 3509(b)(1)(B).
Id. at 888. The defendant in Garcia argued that the
provision must either implicitly incorporate the
requirements imposed by Craig or be unconstitutional in
application. Id. The Ninth Circuit agreed. Looking at
the statute, it concluded that Congress intended the
provision to codify the requirements of Craig. Id. It
interpreted the phrase “the child is unable to testify in
open court in the presence of the defendant” as requiring
trial judges to find that the child is unable to testify
“due to the presence of the defendant.” Id. Moreover, the
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United States v. MCCOLLUM, No. 02-0474/AF
court held that Congress intended the same phrase to
require more than a finding of de minimis trauma. Id.
Finally, the court concluded that the degree of trauma
necessary to find that a child was unable to testify, and
thus invoke § 3509(b)(1), was akin to that upheld “in Craig
which required that the child’s emotional distress be such
that he ‘cannot reasonably communicate.’” Id.
Before authorizing the use of remote live testimony in
this case, the military judge looked to both M.R.E. 611(d)
and Craig and stated on the record:
Military Rule of Evidence 611(d) states, in
pertinent part: “Remote live testimony will be
used only where the military judge makes a
finding on the record that a child is unable to
testify in open court in the presence of the
accused, for any of the following reasons: (A)
the child is unable to testify because of fear.”
Maryland v. Craig, 497 U.S. 836 (1990), . .
. in pertinent part held that prior to allowing
out-of-court testimony[,] in order to meet the
accused’s constitutional right to confront
witnesses against him, a trial court must find
the witness would suffer emotional trauma if
forced to testify in the conventional manner; the
trauma would be caused by the presence of the
accused and not by the formal courtroom setting;
and the trauma must be more than de minimis . . .
.
Combining the requirements of Maryland v.
Craig with M.R.E. 611(d), the questions which
must be answered affirmatively before this
[c]ourt can authorize the remote live testimony
of [CS] are as follows: Does the case involve the
abuse of a child? Is the witness a child witness
or a child victim? Is the child unable to
testify in open court because of the presence of
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the accused, and because of her fear of the
accused which causes her emotional trauma as
shown by expert testimony?
By combining the requirements of Craig and M.R.E.
611(d)(3), the military judge derived the appropriate legal
standard for a proper finding of necessity. She determined
that prior to authorizing remote live testimony, a military
judge must find that the witness would be unable to testify
because of the accused’s presence. She also concluded that
the fear or trauma caused by the presence of the accused
must be more than de minimis. While the military judge
appears to have concluded that both fear and trauma were
required for a finding of necessity, the Supreme Court’s
language in Craig is sufficient to uphold the
constitutionality of both M.R.E. 611(d)(3)(A) and (B),
independent of each other. Federal circuit courts
addressing the constitutionality of § 3509(b)(1)(B)(i) and
(ii) have reached the same conclusion. See Moses, 137 F.3d
at 898 (explaining that § 3509(b)(1)(B)(i) “requires a
case-specific finding that a child witness would suffer
substantial fear or trauma and be unable to testify or
communicate reasonably because of the physical presence of
the defendant.”)(emphasis added); United States v. Farley,
992 F.2d 1122, 1125 (10th Cir. 1993)(affirming the use of
remote live testimony under both § 3509(b)(1)(B)(i) and
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United States v. MCCOLLUM, No. 02-0474/AF
(ii)). The military judge therefore applied the
appropriate constitutional and statutory requirements in
making her finding of necessity.
D. The Military Judge’s Finding of Necessity
While we agree with Appellant that M.R.E. 611(d)(3)
must be applied in a manner consistent with Craig, we
disagree that the military judge failed to do so in this
case. A military judge’s finding of necessity is a
question of fact that will not be reversed on appeal unless
such finding is “clearly erroneous or unsupported by the
record.” Longstreath, 45 M.J. at 373. A military judge's
application of M.R.E. 611(d) and Craig is a question of law
that we review de novo. Daulton, 45 M.J. at 219; United
States v. Sullivan, 42 M.J. 360, 363 (C.A.A.F. 1995).
Appellant argues that the military judge incorrectly
applied M.R.E. 611(d)(3) in light of Craig because she
found that CS would suffer fear and trauma from testifying
in Appellant’s presence, when it was clear from Ms. Prior’s
testimony that CS would suffer fear and trauma from
testifying irrespective of Appellant's presence. While it
is true that Craig requires the finding of necessity to be
based on trauma resulting from the accused’s presence, see
Craig, 497 U.S. at 856 (“Denial of face-to-face
confrontation is not needed to further the state interest
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United States v. MCCOLLUM, No. 02-0474/AF
in protecting the child witness from trauma unless it is
the presence of the defendant that causes the trauma.”),
Craig did not require that a child’s trauma derive solely
from the presence of the accused. Rather, it simply
prohibited judges from considering trauma resulting from
sources other than the accused in making a finding of
necessity. Where the finding relates to fear, we read
Craig and M.R.E. 611(d)(3) as imposing a similar
restriction on a military judge’s finding of necessity.
Thus, so long as the finding is based on the fear or trauma
caused by the accused’s presence alone, it is irrelevant
whether the child witness would also suffer some fear or
trauma from testifying generally. A contrary reading would
undermine the very interest the Court sought to protect in
Craig.
In the present case, it is clear that CS was afraid of
both testifying in open court and testifying in front of
Appellant. Ms. Prior testified that it would be
“stressful” for CS to testify in the courtroom, even if the
accused were not present. However, when asked whether the
harm would be aggravated if Appellant were present, she
stated “extremely so.” Moreover, Ms. Prior stated that CS
was afraid that Appellant would beat her if she told anyone
about the abuse. In addition, the military judge asked Ms.
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Prior a series of questions to clarify the sources of the
potential trauma to CS and to ensure that the trauma would
be the product of Appellant's presence. Under these
circumstances, there was sufficient evidence for the
military judge to conclude that the fear or trauma, brought
on by CS’s fear of Appellant alone, would have prevented CS
from reasonably testifying.
Appellant also argues that the military judge erred by
not questioning CS prior to making her ruling. We
disagree. The Sixth Amendment does not require a military
judge, as a matter of course, to interview or observe a
child witness prior to allowing the child to testify
outside of an accused’s presence. In Craig, the Supreme
Court stated:
Although we think such evidentiary requirements
could strengthen the grounds for use of
protective measures, we decline to establish, as
a matter of federal constitutional law, any such
categorical evidentiary prerequisites for the use
of the one-way television procedure. The trial
court in this case, for example, could well have
found, on the basis of the expert testimony
before it, that testimony by the child witnesses
in the courtroom in the defendant’s presence
“will result in [each] child suffering serious
emotional distress such that the child cannot
reasonably communicate[.]”
497 U.S. at 860 (quoting Md. Code Ann. Cts. & Jud. Proc. §
9-102(a)(1)(ii)(1989)) (emphasis added).
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Neither do we conclude that M.R.E. 611(d) require a
military judge to interview a child witness before ruling
on a motion for remote live testimony. The language of
M.R.E. 611(d) requires a “finding on the record,” without
any specific evidentiary prerequisites. While it may be
appropriate, and even necessary, in some circumstances for
a military judge to question or observe a child witness
before ruling that he or she may testify outside of an
accused’s presence, such action is not required per se.
Rather, a proper finding may be based on unrebutted expert
testimony alone, if such testimony provides the military
judge with sufficient information.
In this case, Ms. Prior provided the military judge
with sufficient expert-opinion evidence to make a finding
as to whether CS would suffer trauma and be unable to
testify in Appellant’s presence. Appellant does not
dispute before this Court that Ms. Prior was an expert in
the field of diagnosing and treating child sexual abuse
victims. Ms. Prior was well acquainted with CS, having met
with her 11 or 12 times. She had also observed changes in
CS’s behavior during the trial. Upon this basis, Ms. Prior
was able to conclude that CS was afraid of Appellant and
would be traumatized if forced to testify in front of him.
Moreover, both parties and the military judge had the
22
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opportunity to extensively probe the basis of Ms. Prior’s
conclusions. Under these circumstances, the military judge
was not required to question CS or observe her before
ruling on the Government’s motion.
Appellant next maintains that “the ‘fear’ that the
military judge found existed--that Appellant would beat CS-
-was unreasonable,” as there was no immediate danger to CS
from testifying in Appellant’s presence. Appellant’s
argument, however, misconstrues M.R.E. 611(d)(3)(A). That
provision does not require a finding that a child fear
imminent harm from the accused. Nor does the rule require
that the fear be reasonable. It provides that the fear of
the accused be of such a nature that it prevents the child
from being able to testify in the accused’s presence. Ms.
Prior testified, without objection, that CS was afraid
Appellant would beat her if she told anyone about the abuse
and that that fear would interfere with CS’s ability to
reasonably testify.
In his final argument, Appellant asks us to find that
the military judge’s finding of trauma was erroneous in two
respects. Appellant contends that her finding that CS
would be “traumatized” is insufficient to determine whether
the level of trauma was more than de minimis as required by
Craig. Second, Appellant implies that the facts do not
23
United States v. MCCOLLUM, No. 02-0474/AF
support a conclusion that the trauma to CS would be more
than de minimis. Again, we disagree with Appellant.
As to Appellant’s first concern, we agree with the
lower court that in making her findings, the military judge
clearly took into account the requirement that the trauma
be more than de minimis. She, therefore, made her findings
using the correct standard of necessity. We conclude that
by using the word “traumatized,” the military judge found
more than de minimis trauma.
As to Appellant’s factual argument, we conclude that
there was an adequate factual basis for the military judge
to conclude that CS would suffer more than de minimis
trauma if compelled to testify in Appellant’s presence.
Ms. Prior stated that if CS testified, CS would
“decompensate,” her PTSD symptoms might recur, and she
might regress in her treatment. She went on to add that
the trauma would be “extremely” exacerbated if CS testified
in Appellant’s presence. Moreover, Ms. Prior testified
that CS was afraid Appellant would beat her. Taken
together, this testimony provides a sufficient basis for
the military judge to conclude that CS would suffer trauma
that would prevent her from reasonably testifying in
Appellant’s presence, and that this trauma would be more
24
United States v. MCCOLLUM, No. 02-0474/AF
than de minimis. As a result, the military judge’s finding
of fact was not clearly erroneous.2
We therefore conclude that the military judge properly
interpreted and applied M.R.E. 611(d) and Craig in making
her finding of necessity. We hold that the military judge
did not clearly err in finding that CS would have been
unable to testify in Appellant’s presence under M.R.E.
611(d)(3)(A) because of CS’s fear of Appellant. Further,
we note that although the military judge did not expressly
rely on M.R.E. 611(d)(3)(B), her findings support a
conclusion that CS would have been unable to testify in
Appellant’s presence due to the trauma caused by his
presence. Finally, the procedure implemented by the
military judge properly protected other aspects of
Appellant’s right to confrontation. The military judge
ensured that Appellant was able to communicate with his
counsel at all times during CS’s testimony. The military
judge also required CS to testify in court, under oath, and
in the presence of the fact-finder. In addition,
Appellant’s counsel was able to cross-examine CS. These
2
That CS wanted to testify in Appellant’s presence does not, by itself,
establish that CS would have been able to reasonably testify in
Appellant’s presence. On the facts of this case, the military judge
was free, despite CS’s desire, to defer to Ms. Prior’s conclusion that
CS would be harmed by testifying in front of Appellant in making her
determination that CS would be unable to reasonably testify. We cannot
say this finding is clearly erroneous.
25
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protections were sufficient to ensure the reliability of
CS’s testimony despite Appellant’s absence. We therefore
hold that the military judge did not violate Appellant’s
Sixth Amendment right to confront a witness against him by
allowing CS to testify outside of Appellant’s presence.
Issue II: Marital Communications Privilege
A. Factual Background
Appellant married RM in September 1991. In 1996, RM’s
sister, MW, came to stay with the couple for one month
during the summer. MW was 14 years old at the time of the
visit and was described by her mother as “mildly mentally
retarded.” Because of MW’s condition, RM saw to many of
her sister’s needs.
One morning, between 2:00 and 3:00 a.m., RM entered
the living room and found Appellant and MW watching
television. Appellant was lying on the couch in his
underwear, and MW was lying on the floor in her nightgown.
The nightgown was “up above her waist,” exposing her
panties, and MW was rubbing her stomach. The scene
disturbed RM, but she eventually went back into her room
and went to sleep. Later that morning, RM asked MW whether
anything had happened earlier with Appellant. After some
hesitation, MW became emotional and began to cry. RM
confronted Appellant in the bathroom, asking him whether he
26
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had had sex with MW earlier that day. When he initially
denied having sex with her, RM asked him, “[W]hy would she
[(MW)] say that it happened[?]” Eventually, Appellant
admitted to having had sex with MW, saying, “Yeah, okay.”
RM and Appellant had several more confrontations about
the event. No other people were present during the
discussions. During one of these conversations, RM
expressed her fear that MW might be pregnant. In response,
Appellant told her that he did not ejaculate during the
sexual encounter with MW. Out of fear that MW might be
pregnant, RM took MW to a clinic for a pregnancy test.
Sometime thereafter, Appellant went to Saudi Arabia
for several months on temporary duty. When Appellant
returned home, the couple again discussed the incident with
MW. RM testified that during one of these conversations,
Appellant said that he “was trying to get his life together
and trying to live right, and live better than he had been
in the past. He had started reading the Bible a lot[.]”
She further stated, “I just remember us having a
conversation about him just trying to start over and you
know take responsibility [for] the things he did in the
past, and he mentioned telling my family about what
happened and telling his, and you know, just taking
responsibility for it.” She also added that he
27
United States v. MCCOLLUM, No. 02-0474/AF
specifically wanted to tell his mother what had happened.
In response, RM told Appellant that she did not want him to
tell her family.
Defense counsel moved to suppress all of Appellant’s
statements made to RM on the ground that they were
privileged marital communications. The Government opposed
the motion, arguing that because RM “stood in loco parentis
to [MW] at the time of the relevant events, . . . the
exception to the marital privilege found in [M.R.E.]
504(c)(2)(A) should apply.” In addition, the Government
argued that the statements are admissible because they were
intended to be disclosed to third parties and were
therefore not privileged.
The military judge declined to extend the exception
contained in M.R.E. 504(c)(2)(A) to this case, concluding
that the exception was meant to apply narrowly. The
military judge also held that Appellant’s statement, “Yeah,
okay,” fell within the privilege and should be excluded.
However, she determined that the other two statements were
admissible. With regard to Appellant’s statement that he
did not ejaculate, the military judge determined that the
defense had “failed to establish that this communication
was ‘privileged’ as defined in M.R.E. 504(b)(2).” Rather,
the military judge found that Appellant and his wife
28
United States v. MCCOLLUM, No. 02-0474/AF
intended to disclose the information to medical authorities
to help them determine whether MW was pregnant. Finally,
as to Appellant’s statements made upon his return from
Saudi Arabia, the military judge found that those
statements were not intended to be confidential because
Appellant intended to tell his mother and RM’s family about
his conduct with MW. She therefore granted the defense
motion to suppress as to the first statement, but denied
the motion as to the second and third statements.
Appellant was ultimately convicted of raping MW. He
appealed his conviction to the Air Force Court of Criminal
Appeals, arguing, among other things, that the military
judge should have excluded all three statements pursuant to
the marital communications privilege. See McCollum, 56
M.J. at 841. He maintained that he never intended to
disclose any of the statements to third parties, nor did he
give his wife permission to disclose the statements. Id.
at 842.
The lower court affirmed the military judge’s
decision. The court held that because there was “some
evidence” supporting the view that Appellant intended his
statement about his not having ejaculated to be
communicated to medical authorities, the military judge did
not abuse her discretion by admitting it. Id. at 843.
29
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Because the statement was subject to contrasting
interpretations, the court determined that the “military
judge obviously concluded that [A]ppellant did not meet his
burden of proving the existence of the privilege.” Id.
Regarding Appellant’s statements made to his wife after his
return from Saudi Arabia, the court determined that
although Appellant never actually disclosed the information
to the families, he gave his wife consent to disclose the
information and thus waived the privilege under M.R.E.
510(a). Id.
Appellant appealed his conviction to this Court,
arguing that his statements to his wife were intended to be
confidential marital communications and should have been
excluded by the military judge under M.R.E. 504(b)(1).
During oral argument before this Court, the issue of
whether Appellant’s statements were admissible under the
exception contained in M.R.E. 504(c)(2)(A) again arose.
Because this Court viewed that exception as potentially
relevant in this context, it ordered supplemental briefs
and additional oral argument on the applicability of M.R.E.
504(c)(2)(A) to this case.
Whether the military judge erred by admitting
Appellant’s two statements to his wife therefore depends on
(1) whether Appellant’s statements were privileged under
30
United States v. MCCOLLUM, No. 02-0474/AF
M.R.E. 504(b)(1); and (2) if so, whether the exception
contained in M.R.E. 504(c)(2)(A) applies, making the
statements admissible nonetheless. We address both issues
in turn.
B. M.R.E. 504
(1) Discussion
A military judge’s decision to admit or exclude
evidence is reviewed for an abuse of discretion. United
States v. McElhaney, 54 M.J. 120, 132 (C.A.A.F. 2000); see
United States v. Westmoreland, 312 F.3d 302, 306 (7th Cir.
2002)(“We review the trial court's resolution of a marital
privilege issue for an abuse of discretion.”). Whether a
communication is privileged is a mixed question of fact and
law. McElhaney, 54 M.J. at 131 (citing United States v.
Napoleon, 46 M.J. 279, 284 (C.A.A.F. 1997)). We review a
lower court’s legal conclusions de novo, but we give a
lower court’s factual findings more deference, and will not
reverse such findings unless they are clearly erroneous.
United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995).
Courts have long held, either as a matter of statutory
or common law, that confidential communications between a
husband and wife made during a valid marriage are
privileged and cannot be used as evidence in court, absent
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waiver. See, e.g., Wolfe v. United States, 291 U.S. 7, 15
(1934)(citing early cases recognizing a marital
communications privilege); 8 John Henry Wigmore, Evidence
in Trials at Common Law § 2333 (John T. McNaughton rev.
1961)(discussing the history and development of the marital
communications privilege). In military law, the marital
communications privilege is contained in M.R.E. 504(b)(1).
The provision provides in relevant part:
A person has a privilege during and after the
marital relationship to refuse to disclose, and
to prevent another from disclosing, any
confidential communication made to the spouse of
the person while they were husband and wife and
not separated as provided by law.
The burden of establishing that a marital
communication is privileged under M.R.E. 504(b)(1) is on
the party asserting the privilege. United States v.
McCarty, 45 M.J. 334, 336 (C.A.A.F. 1996); see 1
Christopher B. Mueller & Laird C. Kirkpatrick, Federal
Evidence § 32, at 172-73 (1994)(noting that the party
bearing the burden of proof on privilege issues is the
party seeking to exclude evidence). The party asserting
the privilege must establish its applicability by a
preponderance of the evidence. See United States v.
Singleton, 260 F.3d 1295, 1301 (11th Cir. 2001)(requiring a
defendant asserting the marital privilege to prove by a
32
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preponderance of the evidence that she and her husband were
not permanently separated at the time of the allegedly
protected communication); 1 Mueller & Kirkpatrick, supra, §
32, at 174 (noting that the preponderance standard applies
to preliminary questions such as the application of
privileges). The same standard applies to M.R.E.
504(b)(1). See Rule for Courts-Martial 905(c)(1).
In McElhaney, we summarized the requisite elements of
a privileged communication under M.R.E. 504(b)(1): (1)
there must be a communication; (2) the communication must
have been intended to be confidential; and (3) it must have
been made “between married persons not separated at the
time of the communication.” 54 M.J. at 131. In
Appellant’s case, the parties agree that Appellant’s
statements were communications made to his wife while they
were legally married and not separated. The issue,
therefore, is whether the two statements in question were
intended to be confidential.
M.R.E. 504(b)(2) defines a confidential communication
in the following terms:
A communication is “confidential” if made
privately by any person to the spouse of the
person and is not intended to be disclosed to
third persons other than those reasonably
necessary for transmission of the communication.
33
United States v. MCCOLLUM, No. 02-0474/AF
In United States v. Peterson, 48 M.J. 81, 82 (C.A.A.F.
1998), we stated that a communication is confidential if
there is (1) “physical privacy between the individuals,”
and (2) “an intent to maintain secrecy.” Neither party in
this case disputes that the communications between
Appellant and RM were private and that no third party was
present when Appellant made them. The parties, however,
disagree about whether Appellant intended the
communications to be secret.
From an evidentiary standpoint, proving that a party
intended a communication to be confidential can be
difficult. Such exchanges are often entirely oral, and the
nature of confidential communications is such that there
are rarely third parties or other evidence to attest to the
facts. This difficulty is heightened in the marital
context, where, because of the spousal relationship, there
are rarely “express injunctions of secrecy,” and the only
evidence of intent may be the statement itself. 8 Wigmore,
supra, § 2336, at 648. Moreover, in marriage, iterative
processes of thought are shared, and not just conclusions
and actions. For these reasons, the Supreme Court long ago
held that “marital communications are presumptively
34
United States v. MCCOLLUM, No. 02-0474/AF
confidential.”3 Blau v. United States, 340 U.S. 332, 333
(1951); see Pereira v. United States, 347 U.S. 1, 6 (1954);
Wolfe, 291 U.S. at 14 ; United States v. Byrd, 750 F.2d
585, 590 (7th Cir. 1984); In re Grand Jury Investigation,
603 F.2d 786, 788 (9th Cir. 1979); Caplan v. Fellheimer,
162 F.R.D. 490, 491 (E.D. Penn. 1995); 1 Charles T.
McCormick, McCormick on Evidence § 80, at 330 (5th ed.
1990); 8 Wigmore, supra, § 2336, at 648-56. Therefore,
3
Although the M.R.E.s do not expressly address a presumption of
confidentiality, it has been integral to the marital communications
privilege since the early part of the twentieth century. Moreover, it
is clear that M.R.E. 504(b) is rooted in the common law marital
communications privilege. The analysis of M.R.E. 504(b) indicates that
the present rule is based on the rule contained in paragraph 151(b)(2)
of the Manual for Courts-Martial, United States, 1969 (Revised ed.).
See Manual for Courts-Martial, United States (2002 ed.) [hereinafter
MCM], Analysis of the Military Rules of Evidence A22-40. The analysis
of the 1969 rule, and the legal and legislative analysis of its 1951
predecessor, cite common law cases and commentators to explain the
rule, indicating that the military rule is derived from common law.
See Dep't of the Army, Pamphlet 27-2, Analysis of Contents, Manual for
Courts-Martial, United States 1969 (Revised ed.) para. 151(b)(2), at
27-37 (1970)(citing Lutwak v. United States, 344 U.S. 604 (1953); Wolfe
v. United States, 291 U.S. 7 (1934); and 8 John Henry Wigmore, Evidence
in Trials at Common Law §§ 2298, 2310-11, 2317(1), 2322, 2328(1) (John
T. McNaughton rev. 1961)); Legal and Legislative Basis, Manual for
Courts-Martial, United States 1951 para. 151(b)(2), at 239 (1951
ed.)(citing 8 Wigmore, supra, §§ 2335, 2338(4)(1940 ed.) to clarify the
application of the martial communications privilege and explain several
exceptions to the privilege).
The conclusion that there is a presumption of confidentiality is
also consistent with M.R.E. 101(b), which instructs military courts,
"if not otherwise prescribed in [the] Manual . . . , and insofar as
practicable and not inconsistent with or contrary to the code or [the]
Manual," to apply “the rules of evidence generally recognized in the
trial of criminal cases in the United States district courts[.]” The
M.R.E.s do not address the application of presumptions generally, nor
does M.R.E. 504(b) preclude the application of a presumption of
confidentiality specifically. Nor is such a presumption “inconsistent
with or contrary to" the UCMJ or the MCM. As such, we look to the
rules of evidence that are generally recognized in the federal courts.
As noted in the text, the federal courts that have addressed the issue
have uniformly presumed marital communications to be confidential.
Accordingly, we apply the same rule in this case.
35
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once the party asserting the marital communications
privilege establishes the existence of a private
communication between spouses who are not separated, the
burden of production shifts to the opposing party to
overcome the presumption of confidentiality. See Blau, 340
U.S. at 333-34 (holding that a statement was protected by
the marital privilege where the Government failed to
overcome the presumption of confidentiality); see also In
re Grand Jury Investigation, 603 F.2d at 688 (noting that
because marital communications are presumptively
confidential, it is “necessary for the party seeking to
avoid the privilege to overcome the presumption”)(citing
Blau, 340 U.S. at 333); Caplan, 162 F.R.D. at 491
(explaining that since “all communications made during a
valid marriage are presumed to be confidential . . . the
opposing party has the obligation of overcoming this
presumption.”).
Even though marital communications are presumed to be
confidential, several factors are relevant in determining
whether that presumption has been overcome. For instance,
the nature of the circumstances may suggest that the
speaker did not intend the statement to be confidential.
Wolfe, 291 U.S. at 14 (“[W]herever a communication, because
of its nature or the circumstances under which it was made,
36
United States v. MCCOLLUM, No. 02-0474/AF
was obviously not intended to be confidential it is not a
privileged communication.”). A communication, for example,
is generally not intended to be confidential if it is made
in the presence of a third party. Id. The substance of
the communication may also be indicative of whether the
party intended a statement to be confidential. See Blau,
340 U.S. at 333 (acknowledging that a statement was likely
intended to be confidential where a couple risked being put
in jail for contempt of court for their actions). Because
distinguishing between intent and a mere wish or desire is
often difficult, the existence or nonexistence of an
expressed timeline or particular plan for disclosure may
also reveal whether a party intends to disclose
information. This is particularly true if disclosure is
said to be imminent. Finally, whether the statement is
actually shared with a third party bears on whether the
speaker intended the information to be confidential.
(2) Appellant’s Statements Regarding Ejaculation
In the present case, the Court of Criminal Appeals
upheld the military judge’s admission of Appellant’s
statement regarding ejaculation. In doing so, it
ultimately deferred to the military judge’s conclusion that
Appellant had failed to meet his burden of proving that he
intended the statement to be confidential. However, this
37
United States v. MCCOLLUM, No. 02-0474/AF
conclusion ignores the general rule that marital
communications are presumed to be confidential. Because
Appellant had established that the statement was a private
communication made to his wife while they were married, and
not separated, it was left to the Government to rebut the
presumption of confidentiality. Insofar as the military
judge and lower court placed the burden of production on
Appellant to prove confidentiality, they erred. The proper
question is whether the Government overcame the presumption
of confidentiality. Considering Appellant’s statement and
the circumstances surrounding its utterance, in light of
the factors outlined above, we think that it did not.
Appellant’s statement that he did not ejaculate is not
the kind of statement a person generally intends to share
openly. Further, Appellant likely knew that if authorities
became aware of his actions, he risked being charged
criminally. Moreover, the military judge’s determination
that Appellant intended the statement to be shared with
medical authorities is without substantiation. There is no
evidence that Appellant ever discussed sharing the
information with medical authorities. In fact, RM could
not be certain that Appellant even knew that she intended
to take MW to a clinic. Nor did the statement itself
contain any indication that Appellant intended to share the
38
United States v. MCCOLLUM, No. 02-0474/AF
information with medical personnel, but may have been
uttered to dissuade RM from taking MW to the clinic. The
military judge, therefore, clearly erred by finding that
Appellant intended to share the information with medical
personnel.
Finally, the fact that the statement was never shared
until the investigation began supports the view that
Appellant intended the statement to be confidential. There
was no evidence produced at trial that either Appellant or
RM ever discussed the incident with any third parties prior
to the investigations that led to Appellant’s trial.
Appellant’s mother testified that Appellant never told her
about his conversations with RM. RM also testified that
she never shared the information from these conversations
with her family, family services, law enforcement
personnel, or anyone on base. She also added that she
never told the personnel at the clinic about the incident.
Moreover, the Government did not introduce any medical
records relating to MW’s visit to the clinic.
Because we find no evidence that Appellant intended to
share this statement with medical personnel, we hold that
the Government failed to overcome the presumption of
confidentiality. The military judge therefore abused her
discretion by admitting the statement.
39
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(3) Appellant’s Post-Saudi Arabia Statements
The propriety of admitting Appellant’s post-Saudi
Arabia statements presents a more difficult question. The
lower court held that Appellant waived any privilege by
giving his wife consent to disclose his statement under
M.R.E. 510(a). We disagree.
M.R.E. 510(a) states that a person waives a privilege
where he or she “voluntarily discloses or consents to
disclosure of any significant part of the matter or
communication under circumstances that it would be
inappropriate to allow the claim of privilege.” Voluntary
disclosure applies only where the speaker elects to share a
substantial portion of a privileged communication with a
party outside of the privileged relationship. McElhaney,
54 M.J. at 131-32; see United States v. Bahe, 128 F.3d
1440, 1442 (10th Cir. 1997); 2 Mueller & Kirkpatrick,
supra, § 179, at 293. There is no evidence that Appellant
did so here.
In our view, voluntary consent to disclose is given
where one spouse either expressly or implicitly authorizes
the other to share information with a third party. Courts
have regularly held that the unauthorized disclosure of
privileged information by one spouse does not constitute
40
United States v. MCCOLLUM, No. 02-0474/AF
waiver of the privilege. In such cases, the nondisclosing
spouse can still assert the privilege and prevent the use
of the confidential information in a legal proceeding. 2
Mueller & Kirkpatrick, supra, § 207, at 438; see Proctor &
Gamble Co. v. Banker’s Trust Co., 909 F. Supp. 525, 528
(S.D. Ohio 1995), rev’d on other grounds, 78 F.3d 219 (6th
Cir. 1996); United States v. Neal, 532 F. Supp. 942, 947
(Colo. 1982), aff’d, 743 F.2d 1441 (10th Cir. 1984); State
v. Compton, 726 P.2d 837, 841 (N.M. 1986), cert. denied,
479 U.S. 890 (1986); People v. Gardner, 433 N.E.2d 1318
(Ill. App. Ct. 1982).
In Appellant’s case, RM testified that Appellant told
her that he “mentioned telling my family about what
happened and telling his, and you know, just taking
responsibility for it.” There is no evidence in these
words, or otherwise, that Appellant either expressly or
implicitly authorized his wife to share his statements with
third parties. Without more, his comments reflect a
marital discussion about telling the families about
Appellant’s conduct with MW, not necessarily a decision to
do so. If discussing the possibility of sharing privileged
information with third parties constituted authorization to
disclose, an accused would have effectively waived the
attorney-client privilege each time he discussed the
41
United States v. MCCOLLUM, No. 02-0474/AF
possibility of confessing with his attorney. The facts
here indicate that Appellant and RM merely discussed
disclosure. Therefore, Appellant did not waive the
privilege provided for in M.R.E. 504(b)(1).
As M.R.E. 510(a) does not apply, again the question
becomes whether the Government carried its burden of
overcoming the presumption of confidentiality. The
military judge concluded that Appellant’s expressed desire
to tell his mother and his wife’s family about the incident
with MW manifested his intent to disclose the statements.
It is true that Appellant’s statements could be interpreted
as expressing an intention to disclose information to the
families. However, the statements could also be viewed as
aspirational or an expression of desire, a view supported
by the fact that the statements lacked any indication that
disclosure was planned for a particular time.
Other factors also buttress the view that Appellant
had not yet determined to disclose his relationship with MW
with the families, but was addressing the possibility of
doing so. Similar to Appellant’s other statements to RM,
Appellant’s post-Saudi Arabia statements contained
information that is traditionally maintained as
confidential. Disclosure of Appellant’s relationship with
MW could have resulted in criminal or civil liability to
42
United States v. MCCOLLUM, No. 02-0474/AF
himself and could have traumatized the families. In fact,
RM appears to have had this latter concern in mind when she
counseled Appellant against disclosing his past conduct to
her family. At trial she testified, “I told him I didn’t
want him telling, not my family.” Further, this comment
would seem to confirm that Appellant had not definitely
decided to disclose the information at the time of his
conversation with his wife. Furthermore, the view that
Appellant intended the statements to be confidential is
supported by the fact that neither party disclosed the
information to family members. In short, there is no
evidence he ever discussed the issue with the families or
others.
Although there is some evidence, found in Appellant’s
words, supporting the view that Appellant wanted to tell
others about his conduct with MW, we conclude that this
evidence, when contrasted by evidence to the contrary, was
insufficient to overcome the presumption of
confidentiality. The Government therefore failed to carry
its burden. We therefore hold that the military judge
abused her discretion in concluding that Appellant’s
statements were not privileged under M.R.E. 504(b)(1).
C. Applicability of M.R.E. 504(c)(2)(A).
43
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Because Appellant’s statements meet the requirements
of M.R.E. 504(b)(1), they are privileged unless they
otherwise fall under an exception to that rule. At issue
in this case is the exception contained in M.R.E.
504(c)(2)(A), which applies to “proceedings in which one
spouse is charged with a crime against the person or
property of the other spouse or a child of either[.]” The
Government argues that “child of either” should be read to
include a “de facto” child, or a child who is under the
care or custody of one of the spouses, regardless of the
existence of a formal legal parent-child relationship. It
therefore maintains that because MW was under the custody
and care of RM at the time of the alleged offenses, MW was
a de facto child and M.R.E. 504(c)(2)(A) should apply,
making Appellant’s statements admissible. Whether “child
of either” should be construed to include a de facto child
is a question of law that we review de novo. See United
States v. Phillips, 18 C.M.A. 230, 234, 39 C.M.R. 230, 234
(1969)(construction of regulations is a question of law);
United States v. Ramos-Oseguera, 120 F.3d 1028, 1042 (9th
Cir. 1997)(“A district court’s construction of the Federal
Rules of Evidence is a question of law subject to de novo
review.”)(citing United States v. Manning, 56 F.3d 1188,
1196 (9th Cir. 1995)).
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We begin with the language of M.R.E. 504(c)(2)(A). In
construing the language of a statute or rule, it is
generally understood that the “’words should be given their
common and approved usage.’” United Scenic Artists v. NLRB,
762 F.2d 1027, 1032 n.15 (D.C. Cir. 1985)(quoting 2A Norman
J. Singer, Sutherland Statutory Construction § 46.06, at 74
(4th ed. 1984)). Although the term “child,” by itself, has
many definitions, when accompanied by the phrase “of
either” in the context of a marital relationship, the word
has more specific meaning. The preposition “of,” as used
in this phrase, suggests derivation or belonging. See
Webster’s New World College Dictionary 1000 (4th ed. 2000).
Thus the plain words suggest that a child should be
considered “of” a spouse if that spouse is the parent
(biological, adoptive or legally recognized parent or
guardian) of the child in question. Significantly, Black’s
Law Dictionary defines “parent” in terms of legal or
biological status as
“[t]he lawful father or mother of someone. In
ordinary usage, the term denotes more than
responsibility for conception and birth. The
term commonly includes (1) either the natural
father or the natural mother of a child, (2) the
adoptive father or adoptive mother of a child,
(3) a child’s putative blood parent who has
expressly acknowledged paternity, and (4) an
individual or agency whose status as guardian has
been established by judicial decree.
45
United States v. MCCOLLUM, No. 02-0474/AF
Black’s Law Dictionary 1137 (7th ed. 1999).
It is possible to read the phrase “child of either” to
suggest a custodial relationship, in addition to a legal or
biological relationship where, for example, a child is
placed under the long-term care of another without legal
ratification. A child placed under the long-term care of a
grandparent or other relative during an extended deployment
might establish a sufficient sense of “belonging” to
qualify as a de facto child of the guardian. This view of
the rule’s language, however, strikes us as strained in
light of the general usage and understanding of these terms
in legal practice. Moreover, the President could have
drafted a fuller, more expansive definition to connote a
custodial as well as legal or biological relationship.
Given the significant social and legal policy implications
of extending the privilege with respect to custodial
relationships with children, we would expect such an intent
to be represented in express language, rather than pressed
or squeezed from the present text. Therefore, we think the
better view is that “child of either,” as used in M.R.E.
504(c)(2)(A), applies to only those situations in which a
46
United States v. MCCOLLUM, No. 02-0474/AF
child is the biological child of one of the spouses, the
legally recognized child, or ward of one of the spouses.4
In reaching this conclusion, we are also cognizant
that M.R.E. 101(b) instructs military courts to look to the
federal rules and the common law for guidance on
evidentiary issues where doing so is “not otherwise
prescribed in [the] Manual . . . and insofar as practicable
and not inconsistent with or contrary to the code or [the]
Manual.” When looking to these sources, M.R.E. 101(b)
mandates that we look
(1) First, [to] the rules of evidence generally
recognized in the trial or criminal cases in
the United States district courts; and
(2) Second, when not inconsistent with
subdivision (b)(1), [to] the rules of
evidence at common law.
An expansive interpretation of the phrase “child of either”
finds little support in the federal civilian system or
common law.
With regard to M.R.E. 101(b)(1), the Federal Rules of
Evidence do not expressly provide for an exception to the
marital communications privilege. See Fed. R. Evid. 501.
4
A foster child may indeed be a legally recognized child or ward of a
spouse. Because of variations in state laws and the number of other
factors that might potentially come into play in cases involving foster
children, we reserve the question of whether this exception applies
specifically to foster children for a case in which that issue has been
appropriately raised, briefed, and argued.
47
United States v. MCCOLLUM, No. 02-0474/AF
Moreover, we are aware of only one federal circuit
that has recognized an exception to the common law marital
communications privilege where a spouse is accused of
abusing a child who is not the biological or legal child of
either spouse. See Bahe, 128 F.3d at 1444-46 (creating “an
exception to the marital communications privilege for
spousal testimony relating to the abuse of a minor child
within the household”). While there is no mathematical or
temporal formula for determining how many cases make an
exception “generally recognized,” we are confident it must
be more than one. Thus at this time, the rules of evidence
applicable in the federal district courts do not generally
recognize a de facto child exception to the marital
communications privilege.
We also note that only five states have recognized an
exception to the marital communications privilege for
offenses against a child who is not the biological or
adopted child of one of the spouses. See Huddleston v.
State, 997 S.W.2d 319, 321 (Tex. Ct. App. 1999)(holding
that Tex. Crim. Proc. Code Ann. § 38.10 (Vernon Supp.
1999)) provides an exception to the marital communications
privilege where a person is charged with a crime against
any minor child, regardless of whether the child is a child
of one of the spouses); Dunn v. Superior Court, 26 Cal.
48
United States v. MCCOLLUM, No. 02-0474/AF
Rptr.2d 365, 367-68 (Cal. Ct. App. 1993)(interpreting the
phrase “child of . . . either” in an exception to the
marital communications privilege to include a foster
child); State v. Michels, 414 N.W.2d 311, 315-16 (Wis. Ct.
App. 1987)(concluding that the phrase “child of either” as
used in an exception to the husband-wife privilege was
intended to include a foster child); Daniels v. State, 681
P.2d 341, 345 (Alaska Ct. App. 1984)(holding that the
language “’child of either’ is sufficiently broad to apply
to a crime committed against a foster child.”). Even among
these states, only Texas’s exception in Huddleston would
clearly extend to children in the home that do not have
some type of legal relationship with one of the spouses.
Based on the text of the rule, and in light of the
rules of evidence generally recognized in the federal
courts, we conclude that there is not a de facto child
exception to the marital communications privilege of M.R.E.
504(c)(2)(A). We also conclude that MW was not a child of
RM or Appellant for purposes of M.R.E. 504(c)(2)(A) during
her month-long stay with the couple.
MW is RM’s sister. While RM cared for MW and saw to
her needs, MW only stayed with Appellant and RM for one
month, after which time she returned to her parent’s home.
Moreover, there was no evidence that RM had any parental
49
United States v. MCCOLLUM, No. 02-0474/AF
rights or duties over MW by virtue of law or decree.5 Based
on the lack of evidence to the contrary, we conclude that
MW was not the “child” of either RM or Appellant because
there was no biological and/or legal parent-child
relationship. The exception contained in M.R.E.
504(c)(2)(A) therefore does not apply to this case.
Whether a de facto child exception to the marital
communications privilege should apply to courts-martial is
a legal policy question best addressed by the political and
policy-making elements of the government.6
5
We note that the Government offered no evidence on appeal or at trial
to indicate that a legal child-parent relationship existed during MW’s
month-long stay with RM. Insofar as the Government failed to introduce
any evidence of such a relationship, it should bear the consequences of
such a failure.
6
Consideration of such an exception would require the careful weighing
of complicated and often contrasting policy concerns.
On the one hand, “de facto child” does not offer the same degree
of clarity in coverage as definitions based on legal connections. As
recognized by Judge Everett in United States v. Tipton, 23 M.J. 338,
343 (C.M.A. 1987), there are good arguments for adopting crisp rules of
privilege and exceptions that are as clear to the lay person as they
are to the lawyer in a system of justice integrally incorporating both.
Clear rules also underpin the policy purpose behind the marital
communications privilege in the first instance. As a matter of theory,
certainty in coverage encourages marital communication and, through
communication, the marital bond. The marital bond, in turn, is
generally recognized as facilitating the nurture and protection of
children within the family.
On the other hand, there are good policy justifications for
expanding the exception to the privilege to include a de facto child,
particularly in the military. Due to deployments and single
parenthood, children of military personnel are often cared for by
grandparents, siblings, aunts or uncles, or friends. We also recognize
that many children are abused in homes that are not their own.
Moreover, we are aware that there are a myriad of child-raising
scenarios in today’s society, often necessitating daycare or less
formal means of supervising children. Children in these situations
should receive no less protection from abuse than they receive in their
own homes. One could also argue that the marital communications
50
United States v. MCCOLLUM, No. 02-0474/AF
Because M.R.E. 504(c)(2)(A) does not apply in this
case, Appellant’s statements to RM were privileged and
should have been excluded from trial. Such error will
require reversal unless the error is harmless.
Harmless Error
Whether an error, constitutional or otherwise, was
harmless is a question of law that we review de novo.
United States v. Walker, 57 M.J. 174, 178 (C.A.A.F. 2002);
United States v. Grijalva, 55 M.J. 223, 228 (C.A.A.F.
2001). The Government has the burden of persuading us that
a constitutional error is harmless beyond a reasonable
doubt. United States v. Hall, 56 M.J. 432, 436 (C.A.A.F.
2002). For nonconstitutional errors, the Government must
demonstrate that the error did not have a substantial
influence on the findings. Walker, 57 M.J. at 178 (citing
Kotteakos v. United States, 328 U.S. 750, 765 (1946)).
This Court has never addressed whether the erroneous
admission of privileged marital communications constitutes
constitutional or nonconstitutional error for purposes of
harmless error analysis. With respect to the privilege in
privilege--a privilege intended to promote marital harmony--should not
prevent “a properly outraged spouse with knowledge from testifying
against the perpetrator” of child abuse within the home, regardless of
whether the child is part of that family. United States v. Bahe, 128
F.3d 1440, 1446 (10th Cir. 1997).
In any event, it is the responsibility of the political elements
of government to balance these competing considerations in law.
51
United States v. MCCOLLUM, No. 02-0474/AF
this case, constitutional concerns are not at issue.
M.R.E. 504 was formulated by the Evidence Working Group of
the Joint Service Committee on Military Justice and was
enacted by presidential order. See United States v.
Martel, 19 M.J. 917, 931 (A.C.M.R. 1985); MCM, Drafter’s
Analysis, supra, at A22-38, A22-40. It was not
constitutionally mandated, and consequently, any error in
admitting privileged spousal communications must be
nonconstitutional in nature. Therefore, the military
judge’s error in admitting Appellant’s privileged
statements will be harmless if the error did not have a
substantial influence on the findings.
In determining the prejudice resulting from the
erroneous admission of evidence, we weigh “(1) the strength
of the Government’s case, (2) the strength of the defense
case, (3) the materiality of the evidence in question, and
(4) the quality of the evidence in question.” United
States v. Kerr, 51 M.J. 401, 405 (C.A.A.F. 1999)(citing
United States v. Weeks, 20 M.J. 22, 25 (C.M.A. 1985)).
Applying this standard to Appellant’s case, we hold that
the military judge’s error in admitting Appellant’s
statements was harmless.
On the one hand, there is no doubt that Appellant’s
privileged statements were material. They directly related
52
United States v. MCCOLLUM, No. 02-0474/AF
to Appellant’s culpability, an ultimate issue in this case.
Moreover, the statements were of good quality. While they
were not extensive, the statements were admissions of guilt
and provided sufficient detail to make their meaning clear.
On the other hand, other factors indicate that the
erroneous admission of the statements did not have a
substantial influence on the findings. See Kotteakos, 328
U.S. at 765. The Government presented strong evidence that
Appellant had sexual intercourse with MW. MW testified
that Appellant had had sex with her on multiple occasions
in different places throughout the house. She described at
least two of these occasions in graphic detail. In the
first instance, despite her mental limitations, MW was able
to identify the room in which Appellant had sex with her
and what she was wearing, explain what Appellant said to
her, and describe the sexual encounter, including that
following the encounter, Appellant “wiped the stuff off.
He had took [sic] a towel and had wiped the white stuff off
of him.” She also testified that after having sex, she
went and cleaned the “white stuff” off of herself because
she didn’t want to “get pregnant.” Regarding a second
instance, MW testified to the following facts: (1)
Appellant had sex with her in the living room; (2) RM and
her niece were asleep at the time; (3) she was wearing a
53
United States v. MCCOLLUM, No. 02-0474/AF
nightgown; (4) Appellant asked her if he could have sex
with her; (5) she took off her panties and Appellant took
off his clothes; (6) when they were naked, Appellant
inserted his penis in her; and (7) after Appellant was
done, he again “wiped the white stuff off of him.”
Moreover, MW’s testimony was uncontradicted on cross-
examination. During cross-examination, defense counsel did
not question MW about the facts she testified to on direct.
Rather, defense counsel attempted to show that MW’s
testimony was the result of her suggestibility. Defense
counsel was able to establish that MW was confused about
the existence of a second written statement, but he failed
to mount any evidence to support the theory that MW’s
testimony was untrue.
MW’s testimony was supported by RM’s testimony. RM
testified that she awoke one morning between 2:00 and 3:00
a.m. to find Appellant lying in the living room in his
underwear near MW. She stated that MW’s nightgown was
pulled up above her waist, exposing her panties. RM
further testified that when she confronted MW the next
morning about the events of the prior evening, MW became
emotional and began to cry. Subsequently, in a
confrontation with Appellant about whether he had had sex
with MW earlier that morning, and in response to
54
United States v. MCCOLLUM, No. 02-0474/AF
Appellant’s denying such action, RM testified that she
asked him, “why would [MW] say that it happened[?]” RM
also testified that some time after this incident, she took
MW to a clinic to see whether she was pregnant. When
considered in light of MW’s testimony, these facts
demonstrate that the Government had a strong case against
Appellant.
The defense’s case, on the other hand, was weak. It’s
primary theory, as evidenced by its opening and closing
statements, was that all the prosecution’s witnesses’
stories were inconsistent, confusing, or fabricated. Yet,
defense counsel failed to undermine the substance of MW’s
or RM’s testimony, for example, through cross-examination.
Defense counsel also failed to raise any material
inconsistencies in their stories. Moreover, although
defense counsel insinuated that RM’s and MW’s testimony was
false or the product of suggestion, he was unable to offer
any proof to substantiate such allegations.
Although the qualitative nature of Appellant’s
statements makes resolution of this issue a close one, we
conclude that the other evidence against Appellant was
sufficiently incriminating that Appellant would have been
convicted even if his statements had been properly
excluded. We therefore hold that the military judge’s
55
United States v. MCCOLLUM, No. 02-0474/AF
erroneous admission of those statements did not
substantially influence her findings. The errors were
therefore harmless.
Conclusion
For these reasons, we affirm the decision of the Air
Force Court of Criminal Appeals.
56
United States v. McCollum, 02-0474/AF
CRAWFORD, Chief Judge (concurring in the result):
I agree with the majority’s resolution of this case on
the ground of harmless error. I write separately because
my analysis of whether “child of either” in the context of
Military Rule of Evidence 504(c)(2)(A) [hereinafter M.R.E.]
includes a de facto child, leads me to a different
conclusion than the majority.
While the plain or ordinary meaning is certainly the
starting point for statutory interpretation, courts should
also implement “considerations of language, purpose, and
administrative workability[.]” Geier v. American Honda
Motor Co., 529 U.S. 861, 873 (2000). Accordingly, “it is
entirely appropriate to consult all public materials,
including . . . the legislative history . . . to verify
that what seems to us an unworkable disposition . . . was
indeed unthought of, and thus to justify a departure from
the ordinary meaning of [a] word[.]” Green v. Bock Laundry
Machine Co., 490 U.S. 504, 527 (1989)(Scalia, J.,
concurring). See also Mississippi Band Choctaw Indians v.
Holyfield, 490 U.S. 30, 43 (1989)(applying congressional
intent to statutory interpretation). “These factors
provide a background of the existing customs, practices,
and rights and obligations against which to read the
United States v. McCollum, 02-0474/AF
statute.” United States v. Tardif, 57 M.J. 219, 226
(C.A.A.F. 2002)(Crawford, C.J., dissenting).
The explicit public policy concerns prompting the
military’s adoption of M.R.E. 504(c)(2)(A) suggest that the
term “child of either” includes a de facto child. To find
otherwise is simply an “unworkable disposition” that, while
justifiable under the plain meaning of the word “child,”
defeats a key purpose for which the exception was adopted.
In 1969, the Judicial Conference of the United States,
Committee on Rules of Practice and Procedure, promulgated a
draft of the Proposed Federal Rules of Evidence -- the
precursor of today’s Federal Rules of Evidence. Proposed
Fed. R. Evid. 5-05(b)(1) established an exception to the
husband-wife privilege “in proceedings in which one spouse
is charged with a crime against the person or property . .
. of a child of either[.]” 46 F.R.D. 161, 263 (1969). The
note to the proposed rule identified the “need of
limitation upon the privilege in order to avoid grave
injustice in cases of offenses against . . . a child [of
either spouse.]” Id. at 265 (emphasis added). Proposed
Fed. R. Evid. 5-05(b)(1) became, verbatim, Proposed Fed. R.
Evid. 505(c)(1) in the 1971 Revised Draft of the Proposed
Rules, which included the same explanatory note. 51 F.R.D.
315, 369, 371 (1971).
2
United States v. McCollum, 02-0474/AF
Although Congress did not include the Proposed Rule
505(c)(1) exception in the eventually codified Federal
Rules of Evidence, the military did expressly include the
exception in the form of M.R.E. 504(c)(2)(A). That the
military elected to identify this exception explicitly,
despite Congress’s failure to do so in the Federal Rules of
Evidence, is significant. The analysis of M.R.E.
504(c)(2)(A) notes its adoption from proposed Fed. R. Evid.
505(c)(1), and highlights the rule’s recognition of
“society’s overriding interest in prosecution of anti-
marital offenses and the probability that a spouse may
exercise sufficient control, psychological or otherwise, to
be able to prevent the other spouse from testifying
voluntarily.” Manual for Courts-Martial, United States
(2002 ed.), Analysis of the Military Rules of Evidence A22-
40.
What we glean from the history of M.R.E. 504(c)(2)(A)
and its analysis is an intent to effect public policy.
Clearly, an important public policy behind this exception
is “the interest in protecting children, which abounds in
the law” Dunn v. Superior Court, 26 Cal. Rptr. 2d 365, 367
(Cal. Ct. App. 1993) (interpreting the “child of either”
language in California’s exception to the marital
privilege). This interest strongly signals that “child of
3
United States v. McCollum, 02-0474/AF
either” encompasses a de facto child. To find otherwise
would yield absurd results. Clearly, the exception’s
purpose
would not be served by affording protection to
only those children of a family unit with legal
or biological relationships. Rather, [the
purpose] is to ensure that those individuals,
particularly minor children, who are present in
the home and are actively a part of the family
structure are protected, via criminal
prosecution, for crimes committed against them.
State v. Michels, 414 N.W.2d 311, 316 (Wis. Ct. App.
1987)(emphasis added).1
While the majority may be correct that this issue
ultimately is “a legal policy question best addressed by
the political and policy-making elements of the
government,” __ M.J. (50), the Court is remiss to ignore
the explicit public policy incentives behind the military’s
adoption of M.R.E. 504(c)(2)(A).
1
Several states which, like the military, have adopted the proposed
Fed. R. Evid. 505(c)(1) exception have employed this reasoning and
applied exactly this interpretation of “child of either.” See Daniels
v. State, 681 P.2d 341 (Alaska Ct. App. 1984) (holding that the phrase
is sufficiently broad to include crimes committed against foster
children, in the interest of protecting children); Dunn v. Superior
Court, 26 Cal. Rptr. 2d 365, 367 (Cal. Ct. App. 1993) (interpreting the
phrase to include foster children, in the paramount interest of
protecting children); Huddleston v. State, 997 S.W.2d 319, 321 (Tex.
Ct. App. 1999)(holding that the exception to the spousal privilege
applies when a crime is committed against any minor child even if the
defendant or spouse is not the parent of the child); State v. Michels,
414 N.W.2d 311, 315-16 (Wis. Ct. App. 1987)(applying the rule’s “object
to be accomplished” in concluding that a “foster child is properly
included”).
4