United States v. Ellerbrock , 70 M.J. 314 ( 2011 )

UNITED STATES, Appellee
v.
David C. ELLERBROCK, Private First Class
U.S. Army, Appellant
No. 10-0483
Crim. App. No. 20070925
United States Court of Appeals for the Armed Forces
Argued January 25, 2011
Decided August 31, 2011
STUCKY, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, J., joined. BAKER, J., filed a dissenting
opinion. RYAN, J., filed a dissenting opinion.
Counsel
For Appellant: Captain Barbara A. Snow-Martone (argued);
Colonel Mark Tellitocci, Lieutenant Colonel Imogene M. Jamison,
Lieutenant Colonel Jonathan F. Potter, and Major Peter Kageleiry
(on brief); Captain Shay Stanford and Captain Sarah E. Wolf.
For Appellee: Captain Frank E. Kostik Jr. (argued); Major
Christopher B. Burgess and Major LaJohnne A. White (on brief);
Captain Christopher B. Witwer.
Military Judges: Tara A. Osborn and Donna M. Wright
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Ellerbrock, No. 10-0483/AR
Judge STUCKY delivered the opinion of the Court.
We granted review to determine whether the military judge
erred in applying Military Rule of Evidence (M.R.E.) 412 to
prevent Appellant from introducing evidence of the alleged
victim’s first marital affair to show a motive to fabricate the
accusation against Appellant.1 We hold that the evidence was
constitutionally required, that the military judge abused her
discretion by refusing to admit the evidence, and that it was
not harmless beyond a reasonable doubt.
I.
A.
In accordance with his pleas, Appellant was found guilty of
conspiracy, destruction of military property, larceny of
military property, larceny, and housebreaking in violation of
Articles 81, 108, 121, and 130, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. §§ 881, 908, 921, 930 (2006). Contrary to his
pleas, Appellant was found guilty of rape and sodomy by force in
violation of Articles 120, 125, UCMJ, 10 U.S.C. §§ 920, 925
(2006). This appeal is limited to the latter charges.
Appellant was sentenced to a dishonorable discharge, twenty-five
years of confinement, forfeiture of all pay and allowances, and
1
We also granted review of the constitutionality of M.R.E.
412(c)(3), an issue this Court addressed in United States v.
Gaddis, No. 10-0512, 2011 CAAF LEXIS 669, 2011 WL 3518169(C.A.A.F. Aug. 10, 2011).
2
United States v. Ellerbrock, No. 10-0483/AR
reduction to the lowest enlisted grade. The convening authority
approved the sentence, and the United States Army Court of
Criminal Appeals (CCA) affirmed. United States v. Ellerbrock,
No. ARMY 20070925, 2010 CCA LEXIS 32, at *16, 2010 WL 3931488,
at *5 (A. Ct. Crim. App. Mar. 26, 2010).
B.
On April 10, 2007, the victim, CL, was spending time with a
family friend, Specialist (SPC) Jackson. CL’s husband had just
deployed, and her husband had asked SPC Jackson to look after
CL. At 8:30 p.m., CL put her child to bed, and at around 9:00,
she began to drink and ultimately consumed about a third of a
pint of gin, which is three to four shots. After SPC Jackson
decided to go home, CL testified that she took 2.5 milligrams of
Xanax2 to help her sleep. She had also taken .75 milligrams of
Effexor3 earlier in the day.
Shortly thereafter, CL’s friend, Ms. Vantrease, called and
said that she was coming over. She brought with her Mr. Page
and Appellant; SPC Jackson also stayed. CL had met Appellant
earlier in the year when Ms. Vantrease introduced them to one
another.
2
According to the toxicologist’s testimony, Xanax is prescribed
for anxiety disorders. As the expert explained, Xanax affects
on neurotransmitters in the brain to increase sedation.
3
According to the toxicologist’s testimony, Effexor affects the
neurotransmitters in the brain to combat anxiety and depression.
Mild sedation is also a possible side effect.
3
United States v. Ellerbrock, No. 10-0483/AR
After her friends arrived, CL drank two hard lemonades. As
the CCA noted, there was conflicting testimony about whether CL
had also snorted lines of Xanax, but, by 11:00 p.m., CL was “‘a
little louder than usual, kind of stumbling, but other than
that, fine . . . maybe slightly intoxicated.’” Ellerbrock, 2010
CCA LEXIS 32, at *2-*3, 2010 WL 3931488, at *1.
Sometime after 11:00 p.m., SPC Jackson and Ms. Vantrease
went to the shoppette. Mr. Page, Appellant, and CL remained in
the house, but Mr. Page soon left to sit in his car and await
the return of SPC Jackson and Ms. Vantrease. When Mr. Page
left, he stated that CL did not look drunk, passed out, blacked
out, or otherwise incapacitated. By contrast, Ms. Vantrease
testified that, before she left for the shoppette, CL was passed
out in the bathroom. SPC Jackson testified that, before he left
with Ms. Vantrease, CL was either on the couch or the bathroom
floor, but he could not remember which.
Approximately thirty minutes passed while Mr. Page sat in
his car awaiting the return of SPC Jackson and Ms. Vantrease.
When they returned, Ms. Vantrease went to find CL in the
apartment, while SPC Jackson and Mr. Page stayed outside. In
less than a minute, Ms. Vantrease returned and told Mr. Page and
SPC Jackson that she had heard sexual noises coming from the
bedroom. Mr. Page’s testimony contradicted Ms. Vantrease’s
testimony on this point, as he claimed that she told them that
4
United States v. Ellerbrock, No. 10-0483/AR
CL was passed out in the bathroom when she went to check on her.
When the three went inside, they heard sexual noises, which were
described as the bed squeaking and people moaning.
Ms. Vantrease opened the bedroom door and turned on the
lights, revealing Appellant having sex with CL. The testimony
from the witnesses regarding CL’s mental awareness ranged from
SPC Jackson’s testimony that he saw her flinch to Mr. Page’s
testimony that he saw no movement from CL and believed she had
no control over her mental or physical faculties. A
toxicologist testified that CL likely “exhibit[ed] anywhere from
minimal effects of sedation . . . to being precomatose,” all of
which was dependent on numerous factors, few of which are
discussed in the evidence.
Someone told Appellant to get off CL. Appellant allegedly
responded by telling the group to leave because he was “almost
done.” The three witnesses left the room and the apartment.
When CL finally spoke with SPC Jackson the next morning, she
said that she remembered having sex with Appellant and said
something to the effect of, “I can’t believe I did that” and “I
fe[el] horrible.”
II.
At trial, Appellant moved under M.R.E. 412 to introduce
testimony that CL had engaged in a prior extramarital affair to
support his theory that CL had a motive to lie about the
5
United States v. Ellerbrock, No. 10-0483/AR
consensual nature of the sex with him, which was to protect her
marriage. The military judge considered the following evidence
in making her decision.
A.
At the time of the alleged rape, CL had been married to her
husband for approximately three years, but they had known each
other for five years before they married. Approximately six
months into the marriage, CL was living with a female roommate
in Jacksonville, Florida, while her husband was stationed at
Fort Stewart. At some point, a man ended up living in the
apartment with them. After a month of living with the man, CL
had an affair with him that lasted for three months. After
ending the affair out of guilt, she told her husband about it.
When CL’s husband learned of his wife’s affair, he kicked
down the door of the former paramour. CL’s husband testified
that although he had not told anyone what he would do if his
wife had another affair, “a lot of people that know me know that
I’m hot tempered.” Despite the fact of the first affair, CL
testified that it tended to make their marriage stronger, and
her husband testified that the marriage was “all good.” At the
time of trial, they also had a two-year-old child.
B.
The military judge ruled that the proffered evidence was
inadmissible under M.R.E. 412 and determined that it was
6
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marginally relevant to show that CL had a motive to lie. In
particular, the military judge concluded that the evidence of
the previous affair was stale because it had occurred two and
one-half years earlier. She further determined that CL had no
reason to believe that a second affair would have led to a
divorce, because CL’s marriage was stronger after the first
affair, and the couple now had a child. She stated that it was
speculative to conclude that a second affair would have resulted
in a divorce.
Furthermore, the military judge concluded that the
probative value of the evidence did not outweigh its dangers to
CL’s privacy interests. She also determined that under M.R.E.
403, the dangers of unfair prejudice -- waste of time and
confusion of the issues -- substantially outweighed the
probative value of this evidence. For these reasons, the
military judge concluded that the evidence was not
constitutionally required.
The CCA held that the military judge did not abuse her
discretion in excluding the evidence. Ellerbrock, 2010 CCA
LEXIS 32, at *9, 2010 WL 3931488, at *3. The CCA further held
that even if the military judge erred, any error was harmless
beyond a reasonable doubt, because defense counsel could and did
argue that CL had a motive to fabricate about the consensual
7
United States v. Ellerbrock, No. 10-0483/AR
nature of the sex even without evidence of the prior affair.
Id. at *15-*16, 2010 WL 3931488, at *5.
III.
A.
We review the military judge’s ruling on whether to exclude
evidence pursuant to M.R.E. 412 for an abuse of discretion.
United States v. Roberts, 69 M.J. 23, 26 (C.A.A.F. 2010).
Findings of fact are reviewed under a clearly erroneous standard
and conclusions of law are reviewed de novo. Id.B.
M.R.E. 4124 states that evidence offered by the accused to
prove the alleged victim’s sexual predispositions, or that she
engaged in other sexual behavior, is inadmissible except in
4
Appellant’s trial was completed on August 15, 2007. Executive
Order 13,447, which amended M.R.E. 412(c)(3) to include the
problematic language of “to the alleged victim’s privacy,” was
not released until September 28, 2007, more than a month after
the trial. Exec. Order No. 13,447, 3 C.F.R. 243 (2008). The
military judge, however, still conducted a balancing that relied
heavily on the victim’s privacy interest, a position this Court
appeared to adopt in United States v. Banker, 60 M.J. 216(C.A.A.F. 2004). See Manual for Courts-Martial, United States,
Analysis of the Military Rules of Evidence app. 22 at A22-36
(2008 ed.) (noting that the amended language in M.R.E. 412(c)(3)
was meant to “highlight current practice” in military law,
citing Banker as inspiration). Therefore, even though the
military judge did not apply the current version of M.R.E. 412,
she applied a balancing test consistent with how the rule is
currently written. Therefore, the balancing conducted by the
military judge in this case raises the same concerns as if the
balance had been conducted in accordance with the 2007 amendment
to the rule.
8
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limited contexts. M.R.E. 412(a)-(b). The rule “is intended to
‘shield victims of sexual assaults from the often embarrassing
and degrading cross-examination and evidence presentations
common to [sexual offense prosecutions].’” United States v.
Gaddis, No. 10-0512, 2011 CAAF LEXIS 669, at *9, 2011 WL
3518169, at *3 (C.A.A.F. Aug. 10, 2011) (alteration in original)
(quoting Manual for Courts-Martial, United States, Analysis of
the Military Rules of Evidence app. 22 at A22-35 (2008 ed.)).
While there are three exceptions set out in the rule, we are
concerned only with the third, which states that the evidence is
admissible if “the exclusion of . . . [it] would violate the
constitutional rights of the accused.” M.R.E. 412(b)(1)(C).
The exception for constitutionally required evidence in
M.R.E. 412(b)(1)(C) includes the accused’s Sixth Amendment right
to confrontation. Banker, 60 M.J. at 216, 221 (citing
Weinstein’s Federal Evidence § 412.03[4][a] (2d ed. 2003)). An
accused has a constitutional right “to be confronted by the
witnesses against him.” U.S. Const. amend. VI. That right
necessarily includes the right to cross-examine those witnesses.
Davis v. Alaska, 415 U.S. 308, 315 (1974) (citing Douglas v.
Alabama, 380 U.S. 415, 418 (1965)). In particular, the right to
cross-examination has traditionally included the right “‘to
impeach, i.e., discredit the witness.’” Olden v. Kentucky, 488
U.S. 227, 231 (1988) (quoting Davis, 415 U.S. at 316).
9
United States v. Ellerbrock, No. 10-0483/AR
However, an accused is not simply allowed “‘cross-
examination that is effective in whatever way, and to whatever
extent, the defense might wish.’” Delaware v. Van Arsdall, 475
U.S. 673, 679 (1986) (quoting Delaware v. Fensterer, 474 U.S.
15, 20 (1985) (per curiam)). Indeed, “‘trial judges retain wide
latitude’ to limit reasonably a criminal defendant’s right to
cross-examine a witness ‘based on concerns about, among other
things, harassment, prejudice, confusion of the issues, the
witness’ safety, or interrogation that is repetitive or only
marginally relevant.’” Michigan v. Lucas, 500 U.S. 145, 149
(1991) (quoting Van Arsdall, 475 U.S. at 679). But no
evidentiary rule can deny an accused of a fair trial or all
opportunities for effective cross-examination. See Van Arsdall,
475 U.S. at 679.
Generally, evidence must be admitted within the ambit of
M.R.E. 412(b)(1)(C) when the evidence is relevant, material, and
the probative value of the evidence outweighs the dangers of
unfair prejudice. See Gaddis, 2011 CAAF LEXIS 669, at *20, 2011
WL 3518169, at *6 (“[T]he best reading of the rule is that, as
in its prior iteration, the probative value of the evidence must
be balanced against and outweigh the ordinary countervailing
interests reviewed in making a determination as to whether
evidence is constitutionally required.”). Relevant evidence is
any evidence that has “any tendency to make the existence of any
10
United States v. Ellerbrock, No. 10-0483/AR
fact . . . more probable or less probable than it would be
without the evidence.” M.R.E. 401. The evidence must also be
material, which is a multi-factored test looking at “‘the
importance of the issue for which the evidence was offered in
relation to the other issues in this case; the extent to which
the issue is in dispute; and the nature of the other evidence in
the case pertaining to th[at] issue.’” Banker, 60 M.J. at 222(quoting United States v. Colon-Angueira, 16 M.J. 20, 26 (C.M.A.
1983)). Finally, if evidence is material and relevant, then it
must be admitted when the accused can show that the evidence is
more probative than the dangers of unfair prejudice. See M.R.E.
412(c)(3). Those dangers include concerns about “harassment,
prejudice, confusion of the issues, the witness’ safety, or
interrogation that is repetitive or only marginally relevant.”
Van Arsdall, 475 U.S. at 679.
IV.
In this case, the record indicated that CL did not want her
marriage to end, which tends to show that she had a motive to
fabricate about whether the sexual intercourse with Appellant
was consensual, namely to protect her marriage. See United
States v. Smith, 68 M.J. 445, 448-49 (C.A.A.F. 2010)
(recognizing that protecting an established relationship
provides a motive to lie about the consensual nature of sexual
encounters). The issue presented is whether Appellant was
11
United States v. Ellerbrock, No. 10-0483/AR
denied his rights under the constitutionally required exception
in M.R.E. 412(c)(3), when the military judge prevented him from
presenting a theory that a previous affair made it more likely
that CL would have lied in this case.
It is a fair inference that a second consensual sexual
event outside a marriage would be more damaging to a marriage
than would a single event, assuming the evidence in the record
supported that inference. The primary concern expressed by the
dissents is that Appellant did not present sufficient evidence
to make such an inference relevant and probative in this case.
We disagree.
Although common sense is the guiding principle for
Appellant’s theory for admitting evidence of CL’s prior affair,
see 1 Kenneth S. Broun et al., McCormick on Evidence § 185 (6th
ed. 2006) (stating that determinations of relevancy must be
based on “personal experience, general knowledge, and
understanding of human conduct and motivation”), the evidence in
this case sufficiently supports Appellant’s theory. After her
prior affair, CL admitted that she was afraid that her husband
would divorce her. Her concerns would not abate after a
potentially second illicit sexual encounter, especially in light
of her husband’s reaction to her first affair -- kicking down
the former paramour’s door.
12
United States v. Ellerbrock, No. 10-0483/AR
CL’s knowledge of her husband’s reaction to her first
affair makes it more likely she would have lied than if she did
not know these facts. Her husband underscored this point when
the military judge asked, “Specialist [L], have you ever told
anyone what you would do if your wife had had an affair?” He
responded, “Not to my knowledge, ma’am, but a lot of people that
know me know that I’m hot tempered.” A reasonable reading of
the husband’s response is that his “hot tempered” reaction to
the first affair was not an aberration, which is something that
“a lot of people” knew, including CL. The military judge’s
conclusion that CL had no additional motivation to lie about a
potential second affair because her marriage was stronger after
the first was erroneous because it ignored the evidence and
oversimplified the situation.
Furthermore, the military judge was incorrect to conclude
that this evidence was too stale to be relevant. Time does not
affect all evidence equally. See United States v. Kane, 726
F.2d 344, 348 (7th Cir. 1984) (recognizing that mere passage of
time does not make evidence irrelevant, as it will also depend
on the nature of the evidence and its relation to what is to be
proven). If CL engaged in consensual sexual intercourse with
Appellant, then her previous affair, which was only two and one-
half years old at the time, might well have been a relevant
consideration to her husband’s decision in whether to continue
13
United States v. Ellerbrock, No. 10-0483/AR
on with the marriage. In light of her husband’s reaction to the
previous affair, one cannot discount that CL likely knew of the
real danger a second affair might cause to her marriage.
Therefore, contrary to the military judge’s ruling,
evidence of CL’s prior affair, including her husband’s reaction
to it, has a direct and substantial link to CL’s credibility, a
material fact at issue. See United States v. Stavely, 33 M.J.
92, 94 (C.M.A. 1991) (noting that evidence directly probative of
a witness’s truthfulness is always relevant to the issue of
credibility). Here, the existence of a prior affair may have
established a greater motive for CL to lie about whether her
sexual encounter with Appellant was consensual. Because the
evidence has a tendency to prove or disprove a substantial issue
in question, it is both relevant and material.
The final step in deciding whether evidence of CL’s first
affair was required to be admitted is to balance the probative
value of the evidence against the dangers of unfair prejudice.
Gaddis, 2011 CAAF LEXIS 669, at *20, 2011 WL 3518169, at *6.
Here, the probative value of this evidence is high. Since the
other witnesses’ testimony was conflicting, the credibility of
CL’s testimony about whether she consented was crucial to
Appellant’s conviction. And, as discussed above, evidence of
CL’s prior affair has a direct and substantial link to CL’s
credibility; thus, this evidence is highly probative.
14
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Furthermore, the military judge overstated the M.R.E. 403
concerns in this case. There is no dispute as to whether the
affair occurred. As such, this evidence was unlikely to result
in a waste of time or lead to a trial within a trial to
determine whether past events actually occurred. Confusion of
the issues was also unlikely, given that the theory of relevance
was relatively straightforward. And with proper instructions
from the military judge on how the members could use this
evidence, there is little concern that the members would have
been misled. See United States v. Walker, 42 M.J. 67, 74
(C.A.A.F. 1995) (recognizing that the military judge’s
instructions to members on the proper use of testimony could
have resolved M.R.E. 403 issues).
Because evidence of CL’s prior affair was relevant,
material, and the probative value of the evidence outweighed the
dangers of unfair prejudice, the evidence of CL’s prior affair
was constitutionally required in this case. The exclusion of
CL’s prior affair constituted a constitutional error, which
means we must test the error to see if it was harmless beyond a
reasonable doubt -- whether “‘there is a reasonable possibility
that the evidence [or error] complained of might have
contributed to the conviction.’” United States v. Moran, 65
M.J. 178, 187 (C.A.A.F. 2007) (quoting Chapman v. California,
386 U.S. 18, 24 (1967)).
15
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V.
To determine whether an error affecting an accused’s right
to cross-examination was harmless beyond a reasonable doubt, we
apply the test developed in Van Arsdall, which states the
following nonexclusive, five factors:
[T]he importance of the witness’ testimony in the
prosecution’s case, whether the testimony was
cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the
witness on material points, the extent of cross-
examination otherwise permitted, and, of course, the
overall strength of the prosecution’s case.
475 U.S. at 684.
In this case, CL’s testimony was important to the
Government’s case. Although three eyewitnesses saw CL and
Appellant having sex, they did not provide a coherent picture of
her mental capacity before, during, or after the alleged rape.
This is problematic, since the sole issue in this case was
whether CL consented. As such, CL’s testimony about consent was
crucial to Appellant’s conviction. This factor weighs in favor
of finding harm. Furthermore, absolutely no evidence of CL’s
prior marital affair was admitted; therefore, cross-examination
on this subject would not have been cumulative. This factor
also weighs in favor of finding harm.
Although some evidence corroborated CL’s version of events,
there were significant contradictions in the witnesses’
testimony. For instance, there was varying testimony about how
16
United States v. Ellerbrock, No. 10-0483/AR
much Xanax CL actually ingested or whether she snorted any.
Ellerbrock, 2010 CCA LEXIS 32, at *2-*3, 2010 WL 3931488, at *1.
There was conflicting testimony as to when and if CL passed out
and vomited. Indeed, the toxicologist called by trial counsel
summarized the degree of doubt over CL’s intoxication in
testifying that she “exhibit[ed] anywhere from minimal effects
of sedation . . . to being precomatose.” Based on the
Government’s theory, the difference between CL’s being minimally
sedated and precomatose may have been the difference between
consensual sex and rape. This factor also leans in favor of
finding harm.
Even though CL was subjected to substantial cross-
examination, none of the questions were about her previous
affair. As such, this factor also leans towards a finding of
harm. See Roberts, 69 M.J. at 29 (recognizing that extensive
cross-examination of the witness alone is not enough, if the
cross-examination permitted did not include questions on the
issue constitutionally required).
Finally, the prosecution’s case was not overwhelming. Even
though the witnesses saw Appellant and CL having sex, they
failed to provide a coherent picture of CL’s mental capacity
before, during, or after the alleged rape. Because the only
issue at trial was whether she could and did consent, her
testimony on that issue became crucial to Appellant’s
17
United States v. Ellerbrock, No. 10-0483/AR
conviction. This factor also leans towards finding harm,
especially since evidence of CL’s previous affair could have
reasonably called into question the credibility of CL’s
testimony.
Under the circumstances of this case, “‘[a] reasonable jury
might have received a significantly different impression of [the
witness’s] credibility had [defense counsel] been permitted to
pursue his proposed line of cross-examination.’” Smith, 68 M.J.
at 451 (alterations in original) (quoting United States v.
Collier, 67 M.J. 347, 352 (C.A.A.F. 2009)). As such, we are
convinced that there is a “reasonable possibility that the
evidence [or error] complained of might have contributed to the
conviction.” United States v. Ashby, 68 M.J. 108, 122 (C.A.A.F.
2009) (alteration in original) (citation and quotation marks
omitted). Therefore, we find this error was not harmless beyond
a reasonable doubt.
VI.
The judgment of the United States Army Court of Criminal
Appeals is reversed as to the findings of guilty of rape and
sodomy by force. Those findings and the sentence are set aside.
The findings of guilty of the offenses to which Appellant pled
guilty are affirmed. A rehearing may be ordered.
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BAKER, Judge (dissenting):
I respectfully dissent. I do not believe the military
judge abused her discretion in applying Military Rule of
Evidence (M.R.E.) 412 to the evidence at issue in this case.
The evidence had low probative value, raised significant M.R.E.
412 balancing concerns, and was not vital to the defense;1
therefore it fell within the military judge’s discretion to
exclude the evidence.
Appellant failed to produce an evidentiary foundation for
introducing the proffered evidence that is otherwise excluded
under M.R.E. 412. In particular, defense counsel failed to show
a direct nexus between the evidence the defense sought to
introduce, and the incident at issue in this case. As a result,
exclusion of this evidence did not deprive Appellant of the
opportunity to present a defense.
The circumstances of CL’s affair with JH and the incident
with Appellant were very different: rather than an ongoing
affair, this was a one-night sexual encounter with varying
accounts as to the victim’s consciousness. The victim, CL, has
no history of false allegations of rape -- on the contrary, it
was she who told her husband of her consensual affair with JH a
few days after it ended. Moreover, the defense theory of
1
I use the word vital to mean that which is consistent with the
constitutional guarantee of “a fair opportunity to present a
defense.” Crane v. Kentucky, 476 U.S. 683, 687 (1986).
United States v. Ellerbrock, No. 10-0483/AR
admissibility rested on just the sort of presumption M.R.E. 412
is intended to address, namely, that “a previous affair made it
more likely that CL would have lied.” United States v.
Ellerbrock, __ M.J. __ (12) (C.A.A.F. 2011). As a result, the
military judge correctly required a direct factual nexus between
the prior affair and the incident with Appellant before
permitting testimony about the affair with JH. Appellant did
not provide such a nexus. Neither the victim nor her husband
testified that either of them expected, threatened, or feared
“what would happen if there was further infidelity in” the
marriage. Defense counsel had the opportunity to question each
witness on these points, and neither made a statement that
supported the defense theory that the marriage would not survive
another incident, or that the victim feared this.
The majority bridges this evidentiary gap with a conclusion
about human nature, stating that “common sense is the guiding
principle for Appellant’s theory for admitting evidence of CL’s
prior affair . . . determinations of relevancy must be based on
‘personal experience, general knowledge, and understanding of
human conduct and motivation.’” Id. at __ (12) (citations
omitted). The majority postulates, “[T]he existence of a prior
affair may have established a greater motive for CL to lie about
whether her sexual encounter with appellant was consensual.”
Id. at __ (14). It may have done so, but there is no evidence
2
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it did do so. The link appears to be based on a “common sense”
understanding that a married person who has had an affair is
more likely to later fabricate a rape allegation with a stranger
than someone who has not. That is the type of presumption about
the sexual propensity and moral character of a sexual assault
victim that M.R.E. 412 is intended to exclude. Moreover, the
logic of the argument implies that any prior fact that would
place additional stress on a marriage is constitutionally
required to be admitted where a married woman is the victim of a
sexual assault and the defense is based on consent.
M.R.E. 412 requires significantly more. It requires a
concrete evidentiary proffer rather than just a theory. This
proffer must demonstrate why the evidence offered is material,
the manner in which it is material and probative, and why its
probative value outweighs the privacy interests of the victim.
DISCUSSION
A. M.R.E. 412
M.R.E. 412 is a rape shield law. It is intended to protect
the privacy of victims of sexual assault while at the same time
protecting the constitutional right of an accused to a fair
trial through his right to put on a defense. It accomplishes
the first objective by limiting the opportunity of an accused to
inquire into the past sexual conduct of the victim and from
using innuendo and propensity to demonstrate consent. It
3
United States v. Ellerbrock, No. 10-0483/AR
accomplishes the second objective by expressly recognizing that
some evidence, which otherwise would fall within the parameters
of M.R.E. 412, is essential to a fair trial and is thus
constitutionally required.
The rule’s constitutional foundation rests upon the Supreme
Court’s determination in Michigan v. Lucas that “The right to
present relevant testimony is not without limitation. The right
may, in appropriate cases, bow to accommodate other legitimate
interests in the criminal trial process.” 500 U.S. 145, 149
(1991) (quotation marks omitted).
In the military context, these legitimate interests extend
beyond those recognized in the civilian context. They include a
societal interest in the reporting and prosecution of sexual
offenses and maintenance of a justice system that is fair to
both the accused and to the victims. They also include
maintenance of good order and discipline in the military as well
as the morale and welfare of those who serve in the armed
forces. M.R.E. 412 is a rule of exclusion in light of the
societal interests at stake. Manual for Courts-Martial, United
States, Analysis of the Military Rules of Evidence app. 22 at
A22-35 (2008 ed.) (MCM) [hereinafter Drafters’ Analysis].
B. The M.R.E. 412(c)(3) Exception
The plain text of M.R.E. 412 establishes a three-part test
to determine whether evidence is constitutionally required.
4
United States v. Ellerbrock, No. 10-0483/AR
First, the evidence must be relevant.2 This, of course, is a
baseline and not a finish line.3
Second, the evidence must be material, as determined by
“the importance of the issue for which the evidence was offered
in relation to the other issues in the case; the extent to which
this issue is in dispute; and the nature of the other evidence
in the case pertaining to this issue.” United States v. Banker,
60 M.J. 216, 223 (C.A.A.F. 2004) (quotation marks and citation
omitted).
Finally, in general the probative weight of the evidence
must outweigh the privacy interests of the victim. It is true
that M.R.E. 412(c)(3) evidence may be sufficiently relevant and
material -- its probative value sufficiently high -- that it may
be essential to an accused’s constitutional right to put on a
2
Relevance is “any tendency to make the existence of any fact
that is of consequence to the determination of the action more
probable or less probable than it would be without the
evidence.” M.R.E. 401. While this is a low bar, I remain
unconvinced that the defense demonstrated that the prior affair
made any fact in the current charges more or less likely because
they failed to submit any reason other than sexual propensity
(an impermissible use) or speculations regarding CL’s motivation
as a married woman (an unsubstantiated theory of admission).
3
See United States v. Sullivan, in which this Court upheld the
need for a basic show of relevance in order to admit evidence
even in a case that did not implicate the additional
restrictions of M.R.E. 412: “An accused does not have a right
to cross-examine a witness on any subject solely because he
describes it as one of credibility, truthfulness, or bias.
There must be a direct nexus to the case that is rooted in the
record.” 70 M.J. 110, 115 (C.A.A.F. 2011).
5
United States v. Ellerbrock, No. 10-0483/AR
defense regardless of how it balances against the victim’s
privacy. If so, its probative weight will necessarily outweigh
any privacy interests of the victim. Such evidence in the
vernacular of case law is termed “favorable,” or “vital” to the
accused, and is constitutionally required because the accused
has a right to a fair trial and an opportunity to put on a
defense.
Determining if a piece of evidence meets this standard can
be made in deliberate and sequential fashion as the military
judge works through the rule. Alternatively, based on the facts
of a case it might appear so obvious to the military judge that
on the face of the evidence it is vital to the defense,
obviating the need to engage in any balancing. However, not all
evidence that is relevant and material is essential to the right
to put on a defense. Otherwise, the drafters of the MCM would
not have structured the rule in a manner that had the balancing
test textually follow the military judge’s threshold
determinations on relevance and materiality. Indeed, most
M.R.E. 412 evidence proffered in connection with a viable
constitutional theory of admission will not fall crisply into
black and white categories of constitutional inclusion or
privacy exclusion. Neither do most M.R.E. 412 cases involve
singular proffers of evidence. The M.R.E. 412 balancing test
promulgated by the President therefore serves as a mechanism for
6
United States v. Ellerbrock, No. 10-0483/AR
military judges to accommodate multiple and weighty
constitutional issues and values without dealing in all-or-
nothing absolutes of inclusion or exclusion. As a result, where
the balancing is close, a military judge will not necessarily
abuse her or his discretion by including or excluding evidence.
A military judge does not abuse her or his discretion in
excluding evidence if the defense proffer is relevant and
material but of such low probative value that it is outweighed
by the privacy interest of the victim. Likewise, if in applying
the balancing test the military judge determines that the
probative value of the evidence outweighs the risk of unfair
prejudice, then it is also within the military judge’s
discretion to admit the evidence -- after, of course, applying
any other applicable rules of evidence, such as M.R.E. 403.
However, it is also important to note that evidence may not
emerge as “vital” until after an initial M.R.E. 412 ruling.
Thus, it is possible for a military judge to correctly apply
M.R.E. 412 in excluding evidence, but err by not later
reconsidering that ruling.
In sum, M.R.E. 412 does not preclude an accused from
putting on evidence related to a spouse’s prior extramarital
affair. It does provide for a military judge, in her or his
discretion, to preclude an accused from doing so absent a direct
material and evidentiary connection between the theory of
7
United States v. Ellerbrock, No. 10-0483/AR
admissibility and the facts of the specific case -- in other
words, a showing that the evidence is relevant, material, and
potentially vital.
C. Applying the Test in This Case
In this case, the evidence indicates the following as
reflected in the military judge’s findings of fact and
conclusions:
CL and Corporal BL married in August 2004. Approximately
two to three months later, CL commenced a consensual sexual
relationship with JH. This occurred two and one half years
prior to the incident at issue. JH was a friend of CL’s female
roommate who temporarily moved in to their apartment. The
relationship was ongoing and continuous and ended “of its own
accord in December 2004.” CL “voluntarily informed her husband
of the affair immediately after it ended. She also confided in
her parents, friends, and a neighbor.” She felt guilty. As the
military judge stated in her findings:
Upon learning of the affair, he [BL] did not threaten to
leave CL, but he kicked down a door and was incarcerated
for three days in a local jail. BL and CL worked out their
marital problems and remain married to the present day.
Both CL and BL believe their marriage is stronger because
of the affair.
With respect to the incident for which Appellant was charged,
the military judge found that CL did not know Appellant before
the night in question. In addition, the expert toxicologist
8
United States v. Ellerbrock, No. 10-0483/AR
testified that CL’s consumption of drug and alcohol would leave
CL inebriated somewhere between sedated and comatose; and
different witnesses perceived different sounds upon their return
to the house.4
This Court reviews a military judge’s decision to exclude
evidence subject to M.R.E. 412 for an abuse of discretion.
Banker, 60 M.J. at 223.
(1) Probative Value
At trial, Appellant sought to introduce evidence of CL’s
affair with JH for the purpose of showing CL’s motive to
fabricate because she feared a similar and more severe reaction
to the discovery of another extramarital sexual encounter and
more generally to protect her marriage.
In response, the military judge made the following
conclusions on the record:
[CL]’s extramarital affair is remote in both time and
manner to the rape and forcible sodomy charges before the
court. Not only did the affair occur two and a half years
ago, but it began after [CL] became intimate with a man she
saw on a daily basis for a month. . . . [CL] and the
accused did not previously know one another.
4
Private Page testified that he recognized the voice moaning and
it was “Just the sound of [Appellant].” SPC Jackson stated that
he heard “sexual noises” that “sounded like a female type voice”
but when they opened the door, he saw the victim, eyes closed,
“[h]er head just laying there limp.” When the defense counsel
stated that “the complainant was moaning prior to the
individuals coming into the room seeing her in there with PFC
Ellerbrock,” the military judge responded, “That’s a proffer on
your part. There’s been no evidence so far before this court to
that whatsoever.”
9
United States v. Ellerbrock, No. 10-0483/AR
. . . .
There is no pattern of rape allegations; [CL]’s allegation
of rape against the accused is the first rape allegation
she has lodged. There is no pattern of extramarital
affairs by [CL]; the affair occurred 2 1/2 years ago is the
only incident of infidelity in the [L]’s marriage. There
is no evidence that the affair destroyed or even weakened
[the] marriage; in fact, they remain married, have had a
child since the revelation of the affair, and the evidence
shows their marriage is now stronger.
There is no evidence that [BL] told [CL] that if she had
another affair, he would leave her, end the marriage, or
react in any other way.
The majority does not find the military judge’s findings of fact
clearly erroneous. However, the majority concludes that “the
military judge erred in applying [M.R.E.] 412 to prevent
Appellant from introducing evidence of the alleged victim’s
first marital affair.” Ellerbrock, __ M.J. at __ (2) (emphasis
added). In my view, the military judge did not abuse her
discretion for four reasons.
(a) First, there is no evidence to suggest, as the majority
does, that the encounter between Appellant and CL was a second
marital affair. The logic of Appellant’s argument changes
significantly if the incident with Appellant is viewed as a
“second affair.” There is no doubt that a prior sexual affair
could be probative in assessing someone’s credibility and motive
to fabricate. As a matter of logic, for example, a “second”
affair would be more damaging to a marriage than would a single
affair, if other factors remain the same and the evidence
10
United States v. Ellerbrock, No. 10-0483/AR
indicates as much. However, there is no evidence whatsoever in
the record that CL was engaged in an affair with Appellant.
(b) Second, if one does not treat the incident with
Appellant as a second affair, then it was either a rape or a
one-night stand. In that case the theory of admission
necessarily rests on the view that a married woman who has had
an affair is more likely to falsely allege rape to protect her
marriage two years later than a woman who has not had a prior
affair.
This theory of admission is inherently problematic because
it is not based on the facts in evidence, but rather on a
presumption about human nature. There is no evidence in the
record that the prior affair put the marriage on tenterhooks at
the time of the rape. The evidence seems to suggest otherwise.
The military judge stated on the record, “There is no evidence
that the affair destroyed or even weakened [the] marriage; in
fact . . . the evidence shows their marriage is now stronger.”
This finding may be counterintuitive, but it is supported by
facts in the record. Neither is there evidence in the record
that either CL or BL made statements or raised concerns about
what might happen to their marriage in the event of a subsequent
sexual encounter outside the marriage or other stressful event.
The notion that their marriage would end if an additional
stressor occurred was either not factually accurate or was not
11
United States v. Ellerbrock, No. 10-0483/AR
elicited by counsel, even though counsel was given the
opportunity to establish a factual basis for this claim in the
Article 39(a)5 session.
Furthermore, the extramarital affair was not consistent in
time, place, manner or (perhaps most importantly) manner of
discovery, with the charges that were before the court-martial.
The affair was over two years prior, JH was a person whom CL
knew and was living with for a period of months, and CL did not
end the prior relationship with an allegation of rape. She
ended it voluntarily, and then told her husband about the
relationship. The incident in this case involved two strangers,
one of whom was inebriated and either engaged in consensual sex
or was raped. Therefore, we are not dealing here with a pattern
of conduct, or a pattern of conduct indicative of deceit.
(c) Third, to the extent the defense theory rested on more
than a presumption about human nature, which M.R.E. 412
precludes, it depended on Appellant’s angry reaction to the
affair with JH. The defense argued that BL’s previous angry
reaction when he broke a door was the specific evidence they
sought to bring in (as distinct from the general existence of
the affair or CL’s propensity to engage in extramarital sex).
However, the defense did not demonstrate that this evidence was
5
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 939(a)
(2006).
12
United States v. Ellerbrock, No. 10-0483/AR
both material and highly probative, and thus vital, to
Appellant’s opportunity to put on a defense.6
It is intuitive that a spouse might express anger toward
someone who engages in consensual sex with his spouse. Indeed,
one might expect a husband to show equal if not greater anger in
the event that his spouse was raped as opposed to engaging in a
consensual one-night stand. Moreover, BL was deployed in Iraq
at the time; thus the prospect of an immediate and violent
reaction to the incident was geographically removed. And CL did
not testify that she feared BL’s response to learning of the
incident.
(d) Finally, even if Appellant’s theory of admission was
valid, the evidence offered by Appellant in support of the
theory was of little probative value. It is intuitive that a
spouse might have a motive to hide a consensual sexual encounter
outside the marriage regardless of any past affair. As the
majority notes, it is common sense that a married man or woman
might lie about a consensual sexual event in order to protect a
marriage. However, it is not clear why the existence of a prior
affair alone makes it any more likely the offending spouse would
6
The military judge explicitly gave defense counsel opportunity
to explain the relevance of the evidence, that is, to
demonstrate its tendency to prove or disprove a fact at issue in
the case. M.R.E. 401. In the M.R.E. 412 session, the military
judge repeatedly asked for the defense counsel to establish
relevance. It is the military judge’s responsibility to make
determinations of admissibility in an ongoing trial.
13
United States v. Ellerbrock, No. 10-0483/AR
do so. One could even argue based on the facts in this case
that it made it less likely because CL reported the affair
herself.
As a result, evidence standing alone that CL had once had
an extramarital affair that prompted BL to kick a door down was
not essential, i.e., vital, to Appellant’s opportunity to put on
a defense. Therefore, the military judge appropriately sought
to balance the probative weight of the proffer against the
privacy interests of the victim.
(2) CL’s Privacy Interest
The record contains two statements directly addressing the
victim’s privacy interests. First, in response to the military
judge’s question, “How would you feel about [the fact that you
had this extramarital affair] coming out in open court today?”
CL responded: “Well, honestly, I don’t see it having any
relevance to him raping me. I don’t see how that –- you know –-
matches up. If it was to come out, then it comes out. There’s
nothing I can do about that.” In response to the military
judge’s question “about these perfect strangers in this
courtroom finding out that you had an affair,” CL responded: “I
don’t think it is any of their business.” She also told defense
counsel, “I’m not afraid for it to come out, but it would still
be embarrassing because it’s defacing my character in front of
people I don’t know.”
14
United States v. Ellerbrock, No. 10-0483/AR
The majority does not address CL’s privacy interest.
Presumably this is because CL had told others about the affair
with JH, appeared to have reconciled to the fact of its
occurrence, and seemed aware of the possibility that it would
come out at trial. The victim’s privacy interest in this case
is not as compelling as in some cases. However, the fact that
one has told family and friends something does not mean that the
information would not result in “defacing [one’s] character” “in
front of people [one] do[esn’t] know.” CL said as much.
Thus, on this record, the military judge did not abuse her
discretion in excluding the evidence on probative or privacy
grounds. She certainly did not do so in the context of the
purpose of M.R.E. 412 or in the manner in which she applied the
M.R.E. 403 balancing test to the evidence.
In my view, the military judge correctly considered the
broader implications of her ruling on the privacy interests
intended to be protected by M.R.E. 412, as reflected in the
military judge’s conclusion that “[t]o allow evidence of [CL]’s
previous extramarital affair [without a specific predicate]
would mean that anytime a married woman alleges rape, her
complete sexual history during the marriage becomes relevant to
show bias.” Under the majority’s reasoning, in the case of a
sexual assault trial, it would seem constitutionally required to
permit inquiry on any stressor upon the marriage, past or
15
United States v. Ellerbrock, No. 10-0483/AR
present, sexual or not, because such stressors might always
serve as a basis to protect the marriage or made the other
spouse angry. In my view, something more is needed, or the
legitimate privacy interests that the rule seeks to balance and
protect will be swept aside.
Further, the military judge’s M.R.E. 403 concerns about
confusing the issues appear well founded, and in any event, are
not erroneous. This Court has discouraged the introduction of
evidence which results in a “distracting mini-trial on a
collateral issue.” United States v. Berry 61 M.J. 91, 97
(C.A.A.F. 2005) (quoting United States v. Bailey, 55 M.J. 38, 41
(C.A.A.F. 2001) (quotation marks omitted). That appears to be
exactly what has occurred in this case at all levels of judicial
process. M.R.E. 412 derives in part from recognition that this
interest in avoiding the mini-trial is heightened when the
evidence has a tendency to embarrass or degrade the
witness/victim.7
In conclusion, because the military judge’s findings of
fact are not clearly erroneous and her application of the law on
the record is sound and consistent with the legitimate purposes
of M.R.E. 412 and the constitutional interests it seeks to
7
M.R.E. 412 “is intended to shield victims of sexual assaults
from the often embarrassing and degrading cross-examination and
evidence presentations common to prosecutions of such offenses.”
Drafters’ Analysis app. 22 at A22-35).
16
United States v. Ellerbrock, No. 10-0483/AR
protect, she did not abuse her discretion in excluding the
evidence at issue in this case.
17
United States v. Ellerbrock, No. 10-0483/AR
RYAN, Judge (dissenting):
I respectfully disagree that the military judge’s
limitation on cross-examination in this case was an abuse
of discretion.
With respect to the Sixth Amendment’s Confrontation
Clause,1 “trial judges retain wide latitude . . . to impose
reasonable limits on . . . cross-examination based on
concerns about, among other things, harassment, prejudice,
confusion of the issues, the witness’ safety, or
interrogation that is repetitive or only marginally
relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679
(1986); see also Delaware v. Fensterer, 474 U.S. 15, 20
(1985) (per curiam); United States v. Collier, 67 M.J. 347,
353 (C.A.A.F. 2009); United States v. James, 61 M.J. 132,
136 (C.A.A.F. 2005). The question is whether a reasonable
panel would have received “a significantly different
impression” of CL’s credibility had Appellant been
permitted to cross-examine her on the prior affair. See
Van Arsdall, 475 U.S. at 680.
I agree with Judge Baker that such evidence was
marginally relevant and probative, and precisely the sort
of evidence that Military Rule of Evidence 412 was intended
1
“In all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against
him.” U.S. Const. amend. VI.
United States v. Ellerbrock, No. 10-0483/AR
to exclude. United States v. Ellerbrock, __ M.J. __, __-__
(1-3) (C.A.A.F. 2011) (Baker, J., dissenting). The defense
counsel was permitted to cross-examine CL on the numerous
self-evident bases for her motive to fabricate and to argue
the same to the members. On cross-examination, the defense
established that CL had been married to her husband (who
was deployed to Iraq at the time of the alleged rape) for
three years at the time of trial, and that Specialist
Jackson -- who had witnessed the alleged rape -- was very
good friends with her husband. The defense also
established that CL had ingested Xanax and alcohol while
socializing with friends on the night of the alleged rape.
Finally, the defense established that CL’s initial sworn
statement to investigators differed from her court-martial
testimony in that she had not told investigators that
Appellant had anal sex with her in the middle of the night
and that she had told him to stop. Having established all
this, defense counsel argued as follows during closing
argument:
When you look at the Complainant, what’s her
motive to fabricate? She’s married; living on
post; husband is deployed; [s]he has friends over
[at] the house on a Tuesday night; start
drinking. How does she explain these events to
her husband, who’s deployed? . . . Why would she
have to explain that to her husband? Well,
because his best friend, his close friend, is
Specialist Jackson.
2
United States v. Ellerbrock, No. 10-0483/AR
Defense counsel then argued, “how do we know that [the sex]
wasn’t consensual? We don’t know that.” Thus, the defense
established the rather self-evident proposition that a
married woman whose husband is deployed would have a motive
to allege that sex with another -- occurring after a social
event at which her husband’s good friend was present -- was
not consensual.
“When reviewing the adequacy of a cross-examination,
the question is whether the jury had sufficient information
to make a discriminating appraisal of the witness’s motives
and bias.” United States v. Nelson, 39 F.3d 705, 708 (7th
Cir. 1994) (quotation marks and citations omitted). Here,
the members had sufficient information to make a
discriminating appraisal of CL’s motive to lie to protect
her marriage. Cf. Davis v. Alaska, 415 U.S. 308, 317-18
(1974) (finding a Confrontation Clause violation where the
defense was not permitted to present its theory of bias so
that the jury could make “an informed judgment” as to that
theory). Evidence of CL’s prior affair would have added
little or nothing to this motive for the reasons set forth
in Judge Baker’s separate opinion. Ellerbrock, __ M.J. at
__-__ (10-15) (Baker, J., dissenting). “Additional cross-
examination on this topic would not have established a
potential motive to lie but merely would have embellished
3
United States v. Ellerbrock, No. 10-0483/AR
facts already showing that motive.” Nelson, 39 F.3d at
709; see also United States v. Carruthers, 64 M.J. 340, 344
(C.A.A.F. 2007). Thus, the military judge provided
Appellant with “what he was due under the Confrontation
Clause: an opportunity to impeach the complainant’s
credibility.” See United States v. Smith, 68 M.J. 445, 448
(C.A.A.F. 2010).
For these reasons, and because military judges have
“wide discretion to limit repetitive cross-examination or
to prohibit cross-examination that may cause confusion,”
James, 61 M.J. at 136, evidence of CL’s prior affair was
not constitutionally required to be admitted, and the
military judge correctly excluded it. I would therefore
affirm the decision of the United States Army Court of
Criminal Appeals.
4