United States v. Byrd , 60 M.J. 4 ( 2004 )

IN THE CASE OF
UNITED STATES, Appellee
v.
William A. BYRD, Sergeant
U.S. Army, Appellant
No. 03-0561
Crim. App. No. 9901101
United States Court of Appeals for the Armed Forces
Argued March 2, 2004
Decided June 10, 2004
GIERKE, J., delivered the opinion of the Court, in which EFFRON,
BAKER, and ERDMANN, JJ., joined. CRAWFORD, C.J., filed an
opinion concurring in the result.
Counsel
For Appellant: Captain Gregory T. Rinckey (argued); Colonel
Robert D. Teetsel, Lieutenant Colonel Mark Tellitocci (on
brief); Major Allyson G. Lambert and Captain Mary E. Card.
For Appellee: Captain Edward E. Wiggers (argued); Colonel
Lauren B. Leeker, Lieutenant Colonel Margaret B. Baines, and
Captain Janine P. Felsman (on brief).
Military Judge: Gary J. Holland
This opinion is subject to editorial correction before final publication.
United States v. Byrd, No. 03-0561/AR
Judge GIERKE delivered the opinion of the Court.
Military Rule of Evidence 701 [hereinafter M.R.E.] limits
opinion testimony by lay witnesses. This case concerns whether
M.R.E. 701 allows a lay witness to interpret what Appellant
meant when he wrote certain passages in letters to the witness.
We agree with the well-established federal civilian rule that
this kind of lay opinion testimony is, with certain limited
exceptions, impermissible. Although the military judge
improperly allowed a lay witness to offer her opinion about
Appellant’s meaning in various passages he wrote to her, we find
the error to be harmless.
BACKGROUND
Appellant was tried by a general court-martial consisting
of officer and enlisted members. Contrary to Appellant’s pleas,
the members found him guilty of one specification of committing
forcible sodomy with his daughter A.B. on divers occasions in
violation of Article 125 of the Uniform Code of Military Justice
[hereinafter UCMJ], 10 U.S.C. § 925 (2000). The members found
him not guilty of seven other specifications alleging various
acts of sexual misconduct with the same daughter. The members
sentenced Appellant to a dishonorable discharge, confinement for
ten months, reduction to the lowest enlisted grade, and
forfeiture of all pay and allowances. The convening authority
initially approved the sentence as adjudged.
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The Army Court of Criminal Appeals set aside the original
convening authority’s action in an unpublished opinion. The
convening authority then again approved the sentence as
adjudged, but retroactively waived forfeitures for a six-month
period. The Army Court then affirmed the findings and sentence
in an unpublished opinion and Appellant filed a timely petition
for grant of review. We granted the petition to address the
permissible scope of lay opinion testimony. See 59 M.J. 215(C.A.A.F. 2003). This issue does not involve, and we do not
address, the distinct question of when a witness may testify
about how another person’s communications affect the witness.
FACTS
Appellant was charged with sexual offenses involving his
daughter A.B. when she was ten and eleven years old. While
Appellant was confined by civilian authorities before trial, he
wrote two letters to his wife, as well as another letter to
their daughter A.B. The defense moved in limine to exclude
those letters and Mrs. Byrd’s testimony about them.
The defense argued that any testimony about the letters’
content would be speculative and that the testimony’s
prejudicial effect would outweigh its probative value. At a
hearing on this motion, Mrs. Byrd testified that she recognized
the handwriting on the letters as Appellant’s. She also
testified that she had known Appellant for about sixteen years
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United States v. Byrd, No. 03-0561/AR
and had been married to him for eight years. She then provided
her interpretation of various phrases appearing in the letters.
The trial counsel argued that the letters and Mrs. Byrd’s
opinion testimony were admissible to show that Appellant was
threatening his wife to impede his family’s cooperation with the
prosecution. The trial counsel also noted that the Government
intended to present expert testimony from a psychologist
concerning how “statements can be used as threats designed to
have a spouse not go forward with charges.”
In ruling on the motion to exclude Mrs. Byrd’s testimony
about the letters, the military judge first noted that the
letters themselves were admissible as “admissions by the
accused.” The military judge then made a contingent ruling that
Mrs. Byrd’s testimony would become relevant if the Government
presented expert testimony concerning accused individuals’ use
of psychological or financial pressure to convince their victims
to recant.1 The military judge specifically concluded that “Mrs.
Byrd’s opinion as to what the accused was trying to say to her”
would be helpful to the members.
Mrs. Byrd ultimately testified about the letters during the
Government’s case in chief. The trial counsel directed Mrs.
1
The Government satisfied this condition by presenting the
testimony of a civilian psychiatrist from Fort Campbell, though
curiously the Government called him as a witness after Mrs. Byrd
had already testified.
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Byrd to read various passages from the letters, which had not
yet been published to the members. After the members heard each
passage, the trial counsel elicited additional information from
Mrs. Byrd, including her opinion about what Appellant meant when
he wrote some of the passages. The defense now challenges the
admissibility of her responses concerning eight specific
passages.
DISCUSSION
M.R.E. 701 establishes a two-part test for admissibility of
lay opinion: (1) the opinion must be rationally based on the
witness’s perception; and (2) the opinion must be helpful to the
determination of a fact in issue. Like other evidentiary
rulings, a military judge’s application of M.R.E. 701 is
reviewed for an abuse of discretion. See United States v.
Littlewood, 53 M.J. 349, 353 (C.A.A.F. 2000). A trial judge’s
ruling is “entitled to ‘due deference.’” United States v.
Maxwell, 38 M.J. 148, 152 (C.M.A. 1993) (quoting United States
v. Strozier, 31 M.J. 283, 288 (C.M.A. 1990)). Accordingly, we
will reverse for an abuse of discretion only “if the military
judge’s findings of fact are clearly erroneous or if his
decision is influenced by an erroneous view of the law.” United
States v. Sullivan, 42 M.J. 360, 363 (C.A.A.F. 1995). In this
case, we find such an abuse of discretion.
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Application of the lay witness opinion rule, M.R.E. 701, to
interpretations of the meaning of another person’s
communications is an issue of first impression in military law.
Accordingly, we will seek guidance from judicial interpretations
of Federal Rule of Evidence 701, the model for its military
counterpart.2 See Manual for Courts-Martial, United States (2002
ed.), Analysis of the Military Rules of Evidence A22-49 (“Rule
701 is taken from the Federal Rule without change.”); see also
id. at A22-2, Analysis of M.R.E. 101 (“While specific decisions
of the Article III courts involving rules which are common both
to the Military Rules and the Federal Rules should be considered
very persuasive, they are not binding.”).
The general rule in federal civilian courts is that “[l]ay
witnesses are normally not permitted to testify about their
subjective interpretations or conclusions as to what has been
said.” United States v. Cox, 633 F.2d 871, 875 (9th Cir. 1980);
2
This case was tried before the 2000 amendment to Federal Rule
of Evidence 701, which prohibited lay opinion testimony “based
on scientific, technical, or other specialized knowledge within
the scope of Rule 702.” See Amendments to Federal Rules of
Evidence, 529 U.S. 1189, 1194-95 (2000). While the 2002 edition
of the Manual for Courts-Martial does not reflect the change,
the 2000 amendment to Federal Rule of Evidence 701 now applies
in courts-martial through operation of M.R.E. 1102. A proposed
amendment to the Manual for Courts-Martial specifically
incorporates the change to Rule 701. See Notice of Proposed
Amendments to the Manual for Courts-Martial, United States,
(2000 ed.) and Notice of Public Meeting, 66 Fed. Reg. 30,431(proposed June 6, 2001). Other proposed amendments incorporate
changes to M.R.E.s 103(a)(2), 404(a), 701-702, and 803(6) that
have already taken effect through operation of M.R.E. 1102.
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United States v. Byrd, No. 03-0561/AR
see also United States v. Green, 44 M.J. 631, 639 n.3 (C.G. Ct.
Crim. App. 1996) (O’Hara, J., concurring). Such lay
interpretations are admissible “only if rationally based on
perception of a witness and helpful either to an understanding
of the testimony of the witness on the stand or to the
determination of a fact in issue.” Cox, 633 F.2d at 875.3 For
example, a lay witness may be permitted to interpret “coded or
‘code-like’ conversations.” United States v. Dicker, 853 F.2d
1103, 1108 (3d Cir. 1988).
3
The First, Third, Fifth, Seventh, and D.C. Circuits follow
rules similar to the Ninth Circuit’s formulation in Cox. See,
e.g., United States v. Saccoccia, 58 F.3d 754 (1st Cir. 1995);
United States v. Dicker, 853 F.2d 1103, 1108-09 (3d Cir. 1988);
United States v. White, 569 F.2d 263, 267 (5th Cir. 1978);
United States v. Marzano, 537 F.2d 257, 268 (7th Cir. 1976);
DeLoach v. United States, 307 F.2d 653, 655 (D.C. Cir. 1962)
(pre-Federal Rules of Evidence case); see also United States v.
Coleman, 284 F.3d 892, 894 (8th Cir. 2002) (upholding police
officer’s testimony interpreting defendant’s “drug jargon”);
United States v. People, 250 F.3d 630, 640-42 (8th Cir. 2001)
(holding that FBI agent’s interpretations of codefendants’
conversations were inadmissible under Fed. R. Evid. 701). The
Sixth Circuit, however, maintains that a witness may “testify in
the form of an opinion as to his understanding of a defendant’s
statement.” United States v. Graham, 856 F.2d 756, 759 (6th
Cir. 1988); accord United States v. Elder, 90 F.3d 1110, 1114
(6th Cir. 1996). See also United States v. Awan, 966 F.2d 1415,
1430 (11th Cir. 1992) (interpreting Fed. R. Evid. 701 to allow a
witness to clarify conversations that are abbreviated, composed
of unfinished sentences, or containing ambiguous references to
events that were clear only to the communication’s
participants).
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United States v. Byrd, No. 03-0561/AR
The Second Circuit has emphasized the foundational
requirements that the proponent must satisfy before a witness’s
interpretation of another person’s meaning becomes admissible.
“In order to allow lay opinion testimony interpreting a facially
coherent conversation . . ., the government would have to
establish a foundation that called into question the apparent
coherence of the conversation so that it no longer seemed clear,
coherent, or legitimate.” United States v. Garcia, 291 F.3d
127, 142 (2d Cir. 2002).
We agree with the general prohibition of lay opinion
testimony interpreting facially coherent communications. “Where
terms are capable of being understood by the layman, and where
the jury is capable of interpreting the language or slang
involved, lay witness opinion testimony is improper, as is the
lay witness’s conclusion or interpretation of the conversation.”
State v. Webb, 792 P.2d 1097, 1100 (Mont. 1990).
For a lay opinion interpreting another person’s meaning to
be admissible, the proponent must establish that the witness has
some special basis for determining the speaker’s true meaning.
See generally David A. Schlueter, et al., Military Evidentiary
Foundations 272-73 (2d ed. 2000). Once that foundation is laid,
the witness “may clarify conversations that are abbreviated,
composed of unfinished sentences and punctuated with ambiguous
references to events that were clear only to the conversation
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United States v. Byrd, No. 03-0561/AR
participants,” United States v. Sneed, 34 F.3d 1570, 1581 (10th
Cir. 1994), or which include code or code-like language.
Dicker, 853 F.2d at 1108. When such permissible testimony is
presented, the “accuracy of those perceptions is a question for
the [members].” Sneed, 34 F.3d at 1581.
These general rules can be applied to sort Mrs. Byrd’s
testimony concerning her husband’s letters into three
categories:
(1) Mrs. Byrd’s opinions concerning Appellant’s meaning in
several passages that were facially coherent were inadmissible.
(2) Mrs. Byrd’s opinions concerning Appellant’s meaning
when he wrote certain ambiguous statements were also
inadmissible because they were unaccompanied by any
particularized demonstration that she had a basis for
determining Appellant’s true meaning. It was not enough to show
that Mrs. Byrd was familiar with Appellant’s handwriting and had
corresponded with him in the past. As the proponent of this
testimony, the Government was required to demonstrate that Mrs.
Byrd had some basis for knowing Appellant’s intended meaning for
the particular phrases that she purported to interpret.
(3) Mrs. Byrd’s testimony providing background information
concerning references in the letters to other events was
admissible.
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United States v. Byrd, No. 03-0561/AR
We will now address Mrs. Byrd’s testimony concerning each
of the eight passages.
Passage One
Appellant’s first challenge is to Mrs. Byrd’s testimony
interpreting a portion of Appellant’s letter of June 24, 1999,
that stated, “Well, I will. I won’t strike until you tell me
your intentions. My thinking is, you care for me and want to
help me get out of this. That’s what I think. I’ll wait till
[sic] you decide the other.”
During her testimony on the merits, Mrs. Byrd explained, “I
had always been afraid that he would get mad and take the money
out of the bank and then I wouldn’t have any money to pay the
bills and take care of the kids.” She then provided this
interpretation of the passage:
I took it that if I didn’t – that if I didn’t tell –
when he found out which way I was going to tell – say
it did happen or say it didn’t happen, he was going to
wait and then based upon that was what he was going to
do, based upon whichever way that I went. And that
because of how I felt about him, that I would keep on
doing what I had been doing, trying to protect him.
The trial counsel then asked, “When you say it did happen or
didn’t happen, what are you talking about?” Mrs. Byrd answered,
“I’m talking about the sexual abuse. If we kept saying that it
did not happen and if I kept not cooperating.” The trial
counsel followed up by asking, “Then if you kept on doing that,
what would he do?” Mrs. Byrd answered, “If I kept on not
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United States v. Byrd, No. 03-0561/AR
cooperating with the authorities, then things would continue on
as the same that he would give me financial support.”
Appellant’s meaning in this passage is unclear. Mrs. Byrd
interpreted it as a promise of continued financial support in
return for not cooperating with the prosecution. That
interpretation is not clear from the communication itself.
Accordingly, Mrs. Byrd’s interpretation of Appellant’s meaning
was admissible only if supported by an evidentiary foundation to
establish that Mrs. Byrd had some means, such as prior usage, to
determine Appellant’s intent when he wrote these words.
However, during the motions hearing, the Government did not lay
any foundation to demonstrate that words or phrases used in this
passage had some established meaning in the couple’s
communications. Thus, when the military judge ruled on the
motion, he erred when he held that this testimony was
admissible. Nor did the Government lay the missing foundation
later when Mrs. Byrd testified during the Government’s case-in-
chief and in rebuttal. Mrs. Byrd’s testimony concerning the
first passage therefore fell into the second category discussed
above and was inadmissible.
Passage Two
Also in his June 24 letter, Appellant wrote, “Even if I did
go away for the rest of my life, I’ll be unable to help
financially in prison, but I’ll help mentally.” The trial
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United States v. Byrd, No. 03-0561/AR
counsel asked Mrs. Byrd, “What did you think he meant when he
said, ‘go away for the rest of my life?’” Mrs. Byrd answered,
“That he thought he would go to jail. He would go to prison.”
The trial counsel then asked, “Why would he go to jail?” She
responded, “If he was found guilty of the charges of abuse.”
The meaning of this passage is plain on its face. Thus,
testimony about this passage fell into the first category
discussed above and was inadmissible. Mrs. Byrd’s
interpretation was particularly problematic because it subtly
changed the passage’s meaning. While Appellant’s sentence was
conditional -- “if I did go away” -- she testified that “he
thought he would go to jail.”
Passage Three
The final passage at issue from the June 24 letter read,
“Tell the kids I love them very much. I’m going to do time, no
doubt.” Mrs. Byrd interpreted this passage to mean “[t]hat he
thought he was going to go to prison.” Like the previous
passage, Appellant’s meaning is plain, and the military judge
erred by allowing Mrs. Byrd to “interpret” it.
Passage Four
The first passage at issue from Appellant’s June 26 letter
to his wife stated, “If [A.B.] would only write to me that she’s
going to stick by me and in court say it didn’t happen.” Mrs.
Byrd interpreted this passage to mean that “he wants her not
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United States v. Byrd, No. 03-0561/AR
[sic] to say that it didn’t happen.” Again, the passage’s
meaning is plain on its face, and the military judge erred by
allowing Mrs. Byrd to offer her opinion concerning its meaning.
Passage Five
Appellant also wrote in his June 26 letter:
The main reason I told you what I did in the [car]
before I left was to gain trust and answer your
questions. I also did it because I know if I tell you
the deal, there is a chance for our relationship. I
mean, you did say so before, so I’m going to keep that
in mind.
The trial counsel asked Mrs. Byrd to explain the reference
to the conversation in the car. She answered:
It was a conversation that took place when we were in
the car and I was taking him to Fort Campbell. And we
were talking and he said I could ask him anything I
wanted and he would tell it to me truthfully. And I
asked him did him [sic] and [A.B.] have sex again. . .
. And he told me yes, they had. And the reason that
it had happened was because [A.B.] wanted him to and
that she was going to tell me that it happened anyway.
And so he went ahead and did it.
During Mrs. Byrd’s explanation of passage five, the trial
counsel also asked, “[W]hen he says, ‘I mean you did say so
before, so I’m going to keep that in mind,’ what is he talking
about there?” Mrs. Byrd answered, “I had told him that if he
told me the truth, that – before, when I had found out, that I
wouldn’t leave him, that we you know, we could go to get some
counseling and we could work through this.” The trial counsel
then clarified that Mrs. Byrd was referring to her actions after
A.B. first revealed Appellant’s abuse of her.
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United States v. Byrd, No. 03-0561/AR
Mrs. Byrd’s testimony concerning this passage was a
permissible explanation of an “ambiguous reference[] to events
that were clear only to the” letter’s author and recipient.
Sneed, 34 F.3d at 1581. The Government’s presentation of her
testimony concerning Appellant’s remarks during a previous
conversation was also independently permissible as an account of
admissions by a party opponent. See M.R.E. 801(d)(2).
Passage Six
In his June 26 letter to his wife, Appellant also wrote,
“God, I love my children. I want to be a part of their life so
bad. How can I . . ., making $15.00 a month the rest of my
life.” Mrs. Byrd interpreted this passage to mean “[t]hat if he
goes to prison, he’s only going to be making $15.00, I guess a
day or whatever. And he wouldn’t be able to help us. He
wouldn’t be able to take care of the family.”
The meaning of passage six appears to be clear. Thus, it
fell into the first category discussed above, and allowing
testimony to interpret it was error. To the extent that this
passage is ambiguous, that ambiguity does not appear to
implicate any special knowledge of its intended reader. Neither
during the motions hearing nor during Mrs. Byrd’s testimony
before the members did the Government lay a foundation to
establish that Mrs. Byrd had any unique ability to interpret
this particular passage. Her testimony was simply conjecture.
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United States v. Byrd, No. 03-0561/AR
Thus, even if the interpretation of this passage did not fall
into the first category discussed above, it fell into the
second. In either case, Mrs. Byrd’s interpretation of passage
six constituted impermissible lay opinion testimony.
Passage Seven
Appellant’s June 26 letter also stated, “I’d do anything
for our marriage, even counseling or pretty much anything you or
[A.B.] want[]. Not guilty will stay in effect. Everything
else, I’ll do for the family and their wishes.”
The trial counsel asked Mrs. Byrd, “When he says he’ll do
anything for the marriage, what is he talking about?” She
answered, “I had told him that I wanted us to get counseling.”
The trial counsel then asked, “When did you tell him that?” She
replied, “I had been telling him the whole time this was going
on. I had told him that we needed to get counseling.” Mrs.
Byrd explained that Appellant “said that we couldn’t get
counseling. The only counseling we need was each other, because
if we told – if we went somewhere and told them what was going
on then they would have to act on what we told them.” She also
testified that she meant both marriage counseling and counseling
concerning the abuse.
Mrs. Byrd’s testimony concerning this passage was
permissible for the same reasons discussed in connection with
passage five, above. The Government was permitted to elicit
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United States v. Byrd, No. 03-0561/AR
Mrs. Byrd’s explanation of ambiguous references that were clear
only to the letter’s author and recipient, and the testimony
concerning Appellant’s remarks in earlier conversations was
admissible as an account of admissions by a party opponent.
Passage Eight
The final passage at issue from Appellant’s June 26 letter
stated, “They’ll see me of course. I’ll be in prison then, but
they know I love them.” The trial counsel asked Mrs. Byrd,
“[W]hy would he be in prison?” She replied, “If he got -- if he
got found guilty of the charges of the sexual abuse.”
The meaning of passage eight is plain on its face. Mrs.
Byrd’s testimony concerning the passage, therefore, fell into
the first category discussed above and was inadmissible.
Summary
We hold that the military judge properly allowed Mrs. Byrd
to provide background information concerning passages five and
seven. However, we hold that the military judge erred by
allowing the Government to present her lay opinions concerning
Appellant’s meaning when he wrote the remaining six passages.
Prejudice Analysis
Having found that the military judge erroneously allowed
Mrs. Byrd’s testimony concerning six of the passages, we will
test for prejudice. “We evaluate prejudice from an erroneous
evidentiary ruling by weighing (1) the strength of the
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United States v. Byrd, No. 03-0561/AR
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). The burden of demonstrating harmlessness
rests with the Government. United States v. Baumann, 54 M.J.
100, 105 (C.A.A.F. 2000). In this case, the Government easily
carries this burden.
This was a hard-fought case, involving extensive evidence
presented by both the Government and the defense. The
Government’s case included the testimony of A.B. herself
concerning her father’s sexual offenses. A.B.’s younger brother
testified that he saw Appellant and A.B. in the shower together
naked. A.B.’s younger sister testified that she once looked
through a crack in their home’s master bedroom door and saw
Appellant kissing A.B. Appellant’s wife testified that
Appellant twice admitted to her that he did sexually abuse A.B.
The defense case included Appellant’s explicit denial of
the offenses, extensive good military character evidence, a
limited alibi defense, and evidence about A.B.’s recantation of
her allegations in the midst of child custody hearings.
While the contentious nature of the case militates in favor
of finding prejudice, other aspects of this case convince us
that the error was harmless. Mrs. Byrd’s inadmissible testimony
concerning the six passages was of limited materiality. Other
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United States v. Byrd, No. 03-0561/AR
aspects of her testimony concerning Appellant’s admissions and a
request from Appellant to destroy evidence were, if believed,
far more damaging to the defense.
Nor was Mrs. Byrd’s testimony about the letters a focal
point of the case. For example, during his closing argument to
the members, the trial counsel emphasized not Mrs. Byrd’s
interpretation of the letters, but rather the language of the
letters themselves and Appellant’s testimony about the letters.
In the larger context of the Government’s case, Mrs. Byrd’s
impermissible opinions concerning six passages in Appellant’s
letters were insignificant. To the extent that the letters
influenced the findings, it was Appellant’s own words rather
than Mrs. Byrd’s interpretations of those words that hurt the
defense. Thus, Appellant was not prejudiced by the military
judge’s erroneous rulings.
CONCLUSION
The decision of the United States Army Court of Criminal
Appeals is affirmed.
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CRAWFORD, Chief Judge (concurring in the result):
The majority is incorrect to find an abuse of discretion,
when the “courts have been very liberal in admitting witnesses’
testimony as to another’s state of mind . . . .” United States
v. Hoffner, 777 F.2d 1423, 1425 (10th Cir. 1985). See
John Hancock Mut. Life Ins. Co. v. Dutton, 585 F.2d 1289, 1294
(5th Cir. 1978)(admitted testimony of decedent’s daughter that
she did not believe that the decedent thought his wife would
ever shoot him). Indeed, the preference under the Military
Rules of Evidence [hereinafter M.R.E.] is for admission of
evidence unless it is not legally and logically relevant.
Appellant’s wife, Mrs. Byrd, could certainly testify as to her
reasonable interpretation of the letters, a series of veiled
threats by Appellant aimed to influence his wife’s testimony and
the testimony of the victim, A.B.
To determine the admissibility of opinion testimony by lay
witnesses, M.R.E. 701 requires examination of several factors,
some of which the majority ignores and are set forth below. The
majority also did not consider the M.R.E. 401-404 rules, the
standard of review, or the principles behind M.R.E. 701.
Moreover, many cases cited by the majority1 would permit the
1
See, e.g., United States v. Coleman, 284 F.3d 892 (8th Cir.
2002); United States v. Dicker, 853 F.2d 1103 (3d Cir. 1988)(and
cases cited therein). See also United States v. Garcia, 291
F.3d 127, 140-42 (2d Cir. 2002); United States v. Novaton, 271
F.3d 968, 1007-09 (11th Cir. 2001); United States v. De Peri,
778 F.2d 963, 977-78 (3d Cir. 1985).
United States v. Byrd, No. 03-0561/AR
admission of these coded veiled messages by Appellant.
Certainly, the judge’s decision in admitting the letters was not
an abuse of discretion.
Lay opinions generally are inadmissible. Nevertheless, the
rule against lay opinions is not an absolute rule and is subject
to relaxation. M.R.E. 701 sets forth the prevailing practice
and is a rule of preference rather than a rule of exclusion. 1
John W. Strong, et al., McCormick on Evidence § 11 at 48 (1999).
M.R.E. 701 provides:2
If the witness is not testifying as an expert,
the testimony of the witness in the form of opinions
or inference is limited to those opinions or
inferences which are (a) rationally based on the
perception of the witness and (b) helpful to a clear
understanding of the testimony of the witness or the
determination of a fact in issue, and (c) not based on
scientific, technical, or other specialized knowledge
within the scope of Rule 702.
This case concerns the first two prongs of this rule. The third
prong and the amendments to M.R.E. 702 were added in December
2000 “to eliminate the risk that the reliability requirements
set forth in [M.R.E.] 702 would be evaded through the simple
expedient of proffering expert in lay witness clothing.”
Advisory Committee Notes to Federal Rules of Evidence at 120.
Part of the first prong restates the personal knowledge
requirement in M.R.E. 602. That is not an issue here. Another
portion of the first prong, which is at issue, is the
2
See Amendments to the Federal Rules of Evidence, 529 U.S. 1189,
1194-95 (2000); M.R.E. 1102.
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“rationally based” aspect, that is, the opinion must be a
reasonable inference drawn from the facts. The second prong
requires the testimony to be helpful to the factfinder’s “clear
understanding of the testimony of the witness.” As to this
prong, the courts have been surprisingly liberal in admitting
lay opinions about the state of mind of third persons. Winant
v. Bostic, 5 F.3d 767 (4th Cir. 1993)(witness concluded that
land developers never intended to do what they promise); United
States v. Rea, 958 F.2d 1206, 1215 (2d Cir. 1992)(“There is no
theoretical prohibition against allowing lay witnesses to give
their opinions as to the mental states of others. Accordingly,
these rules do not, in principle, bar a lay witness from
testifying as to whether a defendant in a criminal prosecution
had the requisite knowledge.”)(citations omitted); United States
v. Hoffner, 777 F.2d 1423, 1425 (10th Cir. 1985).
M.R.E. 701 allows the witness to draw reasonable inferences
based on his or her experience and knowledge of the accused. In
this case, Appellant’s wife gave her overall impressions
simplifying a very detailed letter. “Knowledgeable witnesses
can easily satisfy the rational basis and helpfulness criteria
in providing interpretative opinions on the mental states of
others.” Christopher B. Mueller & Laird C. Kirkpatric, Evidence
§ 7.4 at 615 (3d ed. 2003).
When it is impractical for a witness to verbalize all the
data, the witness’s inferential testimony is generally
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United States v. Byrd, No. 03-0561/AR
admissible. Id. at 614-15. Lay people have been able to
express opinions on identity, conduct, competence, feelings,
light or darkness, sound, size, weight, distance, speed, and an
endless number of other things. McCormick, supra, at § 11 at
47-48 n.22 (citing Ladd, Expert Testimony, 5 Vand. L. Rev. 414,
417 (1952)). The Federal Rules of Evidence Advisory Committee
Note observes:
The rule assumes that the natural characteristics of
the adversary system will generally lead to an
acceptable result, since the detailed account carries
more conviction than broad assertion, and a lawyer
can be expected to display his witness to the best
advantage. If he fails to do so, cross-examination
and argument will point up the weakness.
This is especially true where the witness attempts to choose up
sides. Id.The courts have been more receptive to lay opinions about
the state of mind of third parties. Id. at 50. A number of
courts have allowed a person to testify about another’s state of
mind, i.e., grief, intent, and so forth. This is true so long
as it is clear that the witness is expressing an opinion that
can be treated like other witnesses, and the testimony can be
rejected. Lightfoot v. Union Carbide Corp., 110 F.3d 898, 911
(2d Cir. 1997)(witness cited “objective facts” supporting
opinion); Hoffner, 777 F.2d at 1425-26)(“Courts have been very
liberal in admitting witnesses’ testimony as to another’s state
of mind if the witness has had sufficient opportunity to observe
the accused so as to draw a rational conclusion about the intent
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United States v. Byrd, No. 03-0561/AR
of the accused. . . . Determination of the preliminary
questions of perception and helpfulness are within the
discretion of the trial court.”); United States v. McClintic,
570 F.2d 685, 690 (8th Cir. 1978)(witness could testify that the
defendant knew the goods he received were fraudulently obtained
when the witness had heard the defendant discussing the scheme
for obtaining the goods).
The standard of review for evidentiary rulings is whether
the judge abused his discretion. The judge in this case did
not. The abuse of discretion standard requires not that the
judge was wrong, but rather was clearly wrong. As we have
stated, it is not that the judge is maybe wrong or probably
wrong, but rather “it must strike a cord of wrong with the force
of a five-week-old, unrefrigerated dead fish.” United States v.
French, 38 M.J. 420, 425 (C.M.A. 1994)(quoting Parts & Electric
Motors Inc. v. Sterling Electric, Inc., 866 F.2d 228, 233 (7th
Cir. 1988)).
At a session pursuant to Article 39(a), Uniform Code of
Military Justice [hereinafter UCMJ], 10 U.S.C. 839(a) (2000),
the trial counsel laid a foundation for Mrs. Byrd’s opinions by
establishing that she had known Appellant for fourteen years and
had been married to him for eight. Additionally, Mrs. Byrd was
familiar with Appellant’s handwriting from checks, letters, and
other documents. At the Article 39(a) session, the judge
overruled the defense’s objection, based on M.R.E. 403 and
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United States v. Byrd, No. 03-0561/AR
speculation, to Mrs. Byrd’s opinion. Nevertheless, prior to
admitting her opinion at trial, the trial counsel laid an
additional foundation by admitting and playing the taped
conversations from the answering machines. Additionally, the
trial counsel selected only the passages highlighted and
mentioned below.
Prior to the testimony concerning these passages, the
prosecution, without defense objection, played a number of
messages left by Appellant on his wife’s answering machine.
During these conversations, he stated:
If my daughter wants that furniture, she can have it.
I’m not getting furniture for you. I’m getting it for
my daughter. ’cause I’m not throwing smoke up
nobody’s butt. I’m dead serious. You need to get
with me. Trust me. Or say bye bye to the furniture.
I want to be sure that you’re – you’re still good to
go. No matter what you feel, it’s – the bottom line
is, I need you as much as I think you need me. So
don’t get personnel [sic]. Let’s just stick with what
we need to do to get things done.
These taped messages from Appellant provided not only a factual
context for many of Appellant’s written remarks, but also
evidenced a level of spousal and familial communication that,
over a period of 8-14 years, was certainly sufficient foundation
for the opinions Mrs. Byrd expressed on the stand.
Moreover, Appellant evinced a tendency to speak in cryptic,
obfuscatory terms. A majority of courts permit a witness to
interpret “coded or ‘code-like’ conversations.” United States
v. Dicker, 853 F.2d 1103, 1108-09 (3d Cir. 1988). Appellant was
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United States v. Byrd, No. 03-0561/AR
clearly trying to convey a deeper meaning via suggestion,
oblique reference, and innuendo. Indeed, this is a case of a
husband not speaking in plain terms, but coded language. Who
best to interpret what he means than a wife who has known him
for several years? It reminds me of the 1945 German request for
the surrender of Bastogne when the 101st Airborne Division
Commanding General said, “Nuts.” I suppose we could ask the
people who knew the General what “nuts” meant. Would that be
admissible? That is what this case is about. In short, to the
extent that a witness had sufficient familiarity with
Appellant’s communicative form, the military judge correctly
ruled that it would be helpful to the members to have that
witness explain what Appellant was likely talking about in his
letters.
The tape and its foundation were heard by the members
before they heard Mrs. Byrd’s opinion on the letters (which had
been admitted without objection just before the tape played).
Thus, by the time the questioned opinion came before the
members, there was a much greater foundation than there had been
in the Article 39(a) session. After the members heard the tape,
but before they heard her opinions on the letters, Mrs. Byrd
gave her opinion on what other passages on the tape meant. Some
of these cover the same subject matter as the letters.
Mrs. Byrd’s testimony, in total, added significant detail
to the factual setting against which her opinions were set
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United States v. Byrd, No. 03-0561/AR
before the members, and reinforced a level of familiarity with
her husband’s communicative habits consistent with a lay opinion
under M.R.E. 701.
Before hearing the questioned opinions, the members also
heard Mrs. Byrd testify to the reasonable inferences that could
be drawn from the taped telephone messages from Appellant which
were similar in meaning to the letters and issue in this case.
She testified that Appellant had “kind of used the furniture
almost like a bargaining tool.” After hearing the tape, Mrs.
Byrd explained, over objection, Appellant’s vague references to
the furniture, by saying, “I took it that he had called Helig
Meyers and told them to come pick up the furniture and that
[A.B.] was the only one that was going to be able to decide if
we were going to keep the furniture” and “if she didn’t keep
saying . . . that the abuse didn’t happen, then he was going to
have them come pick up the furniture.” Explaining Appellant’s
taped remark that “if you ever do anything for me on Thursday
morning, you can take me up there with A.B.” Mrs. Byrd said,
without objection, that A.B. was to testify at a grand jury
hearing on Thursday and Appellant was asking to ride along back
to Cadiz, Kentucky. When asked to explain Appellant’s taped
remark that he “needs to get some answers to some things,” Mrs.
Byrd testified, without objection, that that meant their
“relationship, the divorce, how we were going to testify at the
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United States v. Byrd, No. 03-0561/AR
[Article 39(a)] hearing.” She felt that “he was laying the
choice at the feet of a child.”
Mrs. Byrd testified that “since the furniture was in his
name and not in mine, even thought [sic] I was making the
payments, they could come take it out anytime he called.” Mrs.
Byrd testified that she had known Appellant 13-14 years and had
been married to him for 8. After getting married, they had
lived at Fort Sill, Baumholder, Huntsville, and Cadiz. Mrs.
Byrd lived in Huntsville alone for nine months while Appellant
was in Bosnia.
As to each passage the judge admitted, I offer the
following views.
Passage One
I agree with the majority that “Appellant’s meaning in this
passage is unclear,” but only to someone who did not know him
over a period of time and had not engaged in other conversations
with him. Mrs. Byrd had already testified that Appellant was
the primary breadwinner and controlled the family funds. And if
A.B. didn’t testify his way, the family would suffer
economically. That is exactly what this passage meant. Thus,
her testimony was admissible on that point and satisfied all
three requirements of M.R.E. 701.
Passage Two
The same rationale applies for the admission of her
testimony concerning this passage. It is clear that he would be
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United States v. Byrd, No. 03-0561/AR
“unable to help financially,” meaning that if she wanted
financial help, A.B. should not testify as to what she has been
telling the investigators.
Passage Three
As to this passage, it is permissible for the wife to say,
or interpret this passage to mean, that he is going to go to
prison unless the family helps him -- again satisfying all three
requirements of M.R.E. 701. The judge’s ruling is not an abuse
of discretion. The language as to this passage, “she’s going to
stick by me,” and in court say it didn’t happen, was consistent
with her other testimony. She had already testified that
Appellant had at least implied that he wanted A.B. to testify
favorably for him. Thus, this evidence was already present, and
it was not error to repeat this testimony.
Passage Five
This passage was helpful to the factfinders because Mrs.
Byrd began her testimony on direct examination by describing
Appellant’s admission to her in the car at Fort Campbell.
Because there is nothing new here about which she had not
already testified, there could be no error.
Passage Six
Again, this showed Mrs. Byrd’s keen insight in interpreting
Appellant’s reference to making $15 a month for the rest of his
life as an intimation that he would no longer be able to support
the family if they did not testify favorably.
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United States v. Byrd, No. 03-0561/AR
Passage Seven
Mrs. Byrd’s opinion that Appellant is referring to
counseling is benign and irrelevant. What hurts Appellant is
Mrs. Byrd’s recitation of his admission at the counseling
session which is admissible in its own right under M.R.E.
801(d)(2), and thus is not error.
Passage Eight
The prosecutor’s question to Mrs. Byrd was, “[W]hy would he
be in prison?” Mrs. Byrd answered, “[I]f he got found guilty of
the charges . . . .” This statement was both harmless and
irrelevant under the circumstances.
For these reasons, I concur only in the result of the lead
opinion.
11