United States v. Harrow , 65 M.J. 190 ( 2007 )

UNITED STATES, Appellee
v.
Ashontia K. HARROW, Airman Basic
U.S. Air Force, Appellant
No. 06-0474
Crim. App. No. 35257
United States Court of Appeals for the Armed Forces
Argued February 14, 2007
Decided June 22, 2007
RYAN, J., delivered the opinion of the Court, in which BAKER,
ERDMANN, and STUCKY, JJ., joined. EFFRON, C.J., filed an
opinion concurring in part and in the result.
Counsel
For Appellant: Captain Christopher L. Ferretti (argued);
Lieutenant Colonel Mark R. Strickland (on brief); Captain
Christopher S. Morgan.
For Appellee: Captain Jefferson E. McBride (argued); Colonel
Gerald R. Bruce, Lieutenant Colonel Robert V. Combs, and Captain
Daniel J. Breen (on brief); Colonel Gary F. Spencer and Major
Steven R. Kaufman.
Amicus Curiae for Appellant: Captain Alex Schneider (law
student)(argued); James H. Rosenblatt, Esq. (supervising
attorney) (on brief) for Mississippi College School of Law.
Amicus Curiae for Appellee: Captain Jennifer J. Bowersox (law
student)(argued); Victoria A. Lowery, Esq. (supervising
attorney) and Katie Akins (law student) (on brief) for
Mississippi College School of Law.
Military Judge: James L. Flannery
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Harrow, 06-0474/AF
Judge RYAN delivered the opinion of the Court.
Appellant argues that three evidentiary errors during her
trial require this Court to overturn her conviction for the
unpremeditated murder of her infant daughter. She also alleges
errors arising from her guilty plea to larceny, the United
States Air Force Court of Criminal Appeals’ sentence
reassessment, as well as from post-trial and appellate delay.
We address each of these six issues. Although we conclude that
this case is not without error, we hold that the errors did not
prejudice Appellant. Therefore, for the reasons stated below,
we affirm the decision of the lower court.
I. BACKGROUND
A general court-martial composed of officer and enlisted
members convicted Appellant, contrary to her plea, of the
unpremeditated murder of her infant daughter, in violation of
Article 118, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 918 (2000). Appellant pled guilty to violations of Articles
86, 107, 121 and 134, UCMJ, 10 U.S.C. §§ 886, 907, 921, 934
(2000), and thirteen specifications thereunder, to include:
multiple failures to go, absence without leave, making a false
official statement, theft of insurance proceeds, fraud in
obtaining phone services, dishonorable failure to pay just
debts, and making false claims to secure the approval of a loan.
The sentence adjudged by the court-martial and approved by the
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convening authority included a dishonorable discharge,
confinement for twenty-five years, and forfeiture of all pay and
allowances.
The Court of Criminal Appeals affirmed all charges except
one specification of absence without leave. United States v.
Harrow, 62 M.J. 649, 661-62 (A.F. Ct. Crim. App. 2006). The
Court of Criminal Appeals found that Appellant’s plea of guilty
to the absence without leave charge was improvident and
reassessed her sentence to a dishonorable discharge, twenty-four
years and six months of confinement, forfeiture of all pay and
allowances, and reduction to the grade of E-1.
We granted review on the following issues:
I.
WHETHER THE MILITARY JUDGE ERRED BY
PREVENTING THE DEFENSE FROM IMPEACHING THE
TESTIMONY OF THE DECEASED BABY’S FATHER -
THE ONLY OTHER PERSON PRESENT AT THE TIME OF
THE ALLEGED SHAKING INCIDENT - WITH PRIOR
INCONSISTENT STATEMENTS REGARDING THE BABY’S
INTERACTIONS WITH APPELLANT AND THE BABY’S
CRYING AFTER APPELLANT LEFT THE HOUSE.
II.
WHETHER APPELLANT’S DUE PROCESS RIGHTS WERE
VIOLATED WHEN IT TOOK OVER FOUR YEARS FOR
THE ARTICLE 66 REVIEW BY THE COURT BELOW TO
BE COMPLETED.
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III.
WHETHER THE MILITARY JUDGE ERRED BY DENYING
A DEFENSE MOTION IN LIMINE TO EXCLUDE THE
TESTIMONY OF VARIOUS WITNESSES REGARDING
APPELLANT’S PATTERN OF MINOR PARENTAL ABUSE
WHERE THE TESTIMONY CONSTITUTED
INAPPROPRIATE CHARACTER EVIDENCE THAT WAS
UNFAIRLY PREJUDICIAL.
IV.
WHETHER THE MILITARY JUDGE ERRED BY ALLOWING
THE PROSECUTION’S EXPERT WITNESS TO PRESENT
INADMISSIBLE PROFILE EVIDENCE THAT PLACED
APPELLANT IN THE PROFILED CATEGORY AND
EXCLUDED THE DECEASED BABY’S FATHER - THE
ONLY OTHER SUSPECT - FROM THE PROFILED
CATEGORY.
V.
WHETHER APPELLANT’S GUILTY PLEAS TO CHARGE
II AND ITS SPECIFICATION [LARCENY] WERE
PROVIDENT.
VI.
WHETHER THE AIR FORCE COURT OF CRIMINAL
APPEALS PROPERLY REASSESSED THE SENTENCE
WHEN IT INCLUDED A REDUCTION IN PAY GRADE
THAT WAS NOT ADJUDGED (OR AUTHORIZED).1
1
We heard oral argument in this case at the Mississippi College
School of Law, Jackson, Mississippi, as part of the Court’s
“Project Outreach.” See United States v. Finch, 64 M.J. 118,
119 (C.A.A.F. 2006); United States v. Mahoney, 58 M.J. 346, 347
n.1 (C.A.A.F. 2003).
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II. FACTS
A. OVERVIEW
We focus first on the general background facts relevant to
Appellant’s conviction for the unpremeditated murder of her
infant daughter, Destiny. Destiny was taken to the hospital
after suffering severe brain trauma from blunt force injury on
June 23, 2000. At the hospital doctors determined that Destiny
had suffered serious brain damage consistent with shaken baby
syndrome and blunt force trauma. Five months later Destiny died
from injuries inflicted that day. She was eleven months old.
In the course of the ensuing investigation, Appellant made
contradictory and incriminating statements to investigators and
others. These admissions and inconsistencies implicated her in
the murder of Destiny. Direct and circumstantial evidence
regarding the timing of Destiny’s injury and Appellant’s
consciousness of guilt, as well as expert testimony,
corroborated Appellant’s admissions and bolstered the
prosecution’s case against her.
The defense attempted to deflect culpability away from
Appellant, arguing Antonio Jackson, Destiny’s father, was the
perpetrator. Some evidence showed that Appellant told
investigators that Destiny’s death may have been an accident.
Appellant did not testify and the defense called no witnesses on
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the merits. All defense evidence was developed through cross-
examination of the prosecution’s witnesses.
The panel was asked to decide under what circumstances, and
at whose hand, Destiny died. What follows is a summary of some
of the evidence presented by the prosecution to prove the cause
and circumstances of Destiny’s death.
B. Physical Injuries to Destiny
On June 23, 2000, Destiny lived in government housing at
Eglin Air Force Base, Florida, with Appellant. Jackson, the
natural father of Destiny, lived out of state, but was visiting
Appellant and staying at her apartment for several days.
On the day of the incident Appellant went to work and left
Destiny with Jackson. Jackson was home with Destiny throughout
the morning and she slept for most of that time. Appellant
returned to her base apartment at midday.
Shortly after she arrived home, Appellant took off her
uniform and lay on the couch. Sometime thereafter Appellant
became angry with Jackson. Appellant began arguing with
Jackson. The fighting escalated into Appellant screaming,
yelling, and cursing.
At some point during the argument, Appellant picked Destiny
up off the couch by one arm. Appellant held Destiny by one arm,
allowing her to flail about, throughout her tirade. Jackson
told her to be careful with the baby and not to take her anger
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out on Destiny. Appellant only became angrier. Appellant
picked up a broom and pointed it at Jackson. She approached
him, spit in his face, and continued to yell at him.
Eventually, Jackson walked away from Appellant and went into
the bathroom in order to avoid the confrontation. Appellant
followed him to the bathroom and continued screaming at him.
Jackson left the bathroom and returned to the living room to
avoid her. She followed him and began to throw things at him,
including Destiny’s walker.
Appellant continued to scream at Jackson, and he returned to
the bathroom and locked the door. After Jackson locked himself
in the bathroom, he could hear Appellant still screaming and
things hitting the wall. He turned up the radio and tried to
ignore her.
At 2:50 p.m. that day, after Jackson locked himself in the
bathroom, and before Appellant left the apartment, Security
Forces Senior Airman (SrA) Jason Warren, a patrolman assigned to
Security Forces, knocked on the front door of Appellant’s
apartment. SrA Warren had been dispatched to Appellant’s
apartment to tell her to contact the first sergeant at work.
This was a common occurrence, as Appellant did not have a phone.
Appellant had the baby on her hip and the baby appeared to
make eye contact with SrA Warren. During the two minutes he was
at the residence, SrA Warren did not hear any yelling and
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nothing appeared to be out of the ordinary. SrA Warren did not
see Jackson. SrA Warren delivered the message and departed.
Appellant left shortly thereafter, slamming the door.
After Jackson heard the door slam, he left the bathroom and
found Destiny on the couch, lying on her side. He tried to give
her a bottle, but she was unresponsive and would not take it.
Jackson heard gargling noises coming from Destiny and other
sounds. He picked her up and observed vomit where she had been
laying. He held Destiny against his body and patted her on the
back in an attempt to clear out any remaining emesis. As he was
holding her, she began to shake, her back arched, and her eyes
rolled back in her head. She then went limp.
Jackson immediately carried Destiny next door to the
apartment of Mr. and Mrs. Harris to call 911 because there was
no telephone in Appellant’s apartment. Only a few minutes
elapsed between the time Appellant sped off and the time Jackson
sought assistance from Mr. and Mrs. Harris.
Mr. and Mrs. Harris, Appellant’s neighbors, both testified
about what happened before Jackson arrived at their door. Mr.
Harris was seated in the computer room of their apartment, and
Mrs. Harris was in their living room, which directly abutted
Appellant’s living room. As the Harris’ apartment shared a
common but very thin wall with Appellant’s apartment, they
clearly heard the disturbance in Appellant’s apartment.
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Mr. and Mrs. Harris both heard Appellant, and only
Appellant, yelling next door. Mrs. Harris heard Destiny crying
loudly for about ten minutes during the middle of the yelling.
Mrs. Harris also heard a loud bang against the shared living
room wall, knocking off a picture in her apartment, and then she
no longer heard Destiny crying. After the thump she heard
Destiny emit one or two whimpers before going silent. Five
minutes after she heard the loud bang against the wall, Mrs.
Harris heard Appellant’s front door slam so hard that it set off
Mrs. Harris’ door bell. She saw Appellant get into her car to
leave, spinning her tires as she exited the parking lot.
Appellant looked “very angry and very raged” as she left the
apartment.
Mr. Harris also heard “thumps” and Appellant “yelling” in
Appellant’s apartment. Mr. Harris looked out the window and saw
Appellant spin her tires as she exited the parking lot.
According to both Mr. and Mrs. Harris, Jackson arrived at their
door with Destiny asking them to dial 911 only a minute or two
after Appellant left. Responding to Jackson’s plea, Mrs. Harris
called 911 and requested emergency assistance for Destiny.
Police and ambulance dispatch records, and the testimony of
Jackson, SrA Warren, and Mr. and Mrs. Harris, establish the
following sequence of events in a thirteen-minute period from
2:45 p.m. to 2:58 p.m.: SrA Warren was dispatched to
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Appellant’s apartment to deliver a message to her; SrA Warren
arrived at Appellant’s apartment and departed shortly
thereafter; Appellant left the apartment; and, almost
immediately thereafter, the Harrises called 911.
C. The Death of Destiny
Destiny was hospitalized as doctors attempted to save her.
She had sustained serious blunt force trauma to her brain and
the left side of her face and suffered significant hemorrhaging
of the brain and eyes. Notwithstanding two operations and
extraordinary care, Destiny died five months later.
An autopsy confirmed significant injuries to Destiny’s
brain. Dr. Gary D. Cumberland, a forensic pathologist and the
chief medical examiner in the local Florida coroner’s office,
conducted an autopsy and found: bruising on the surface of the
brain, tearing of the brain tissue, swelling of the brain, and
several subdural and subarachnoid hemorrhages. The autopsy also
revealed hemorrhages in the eyes. The autopsy did not reveal
injuries associated with external trauma (e.g., skin bruises)
because the injuries occurred five months before Destiny died
and had already healed.
Dr. Cumberland concluded that Destiny “died as a result of
blunt force injuries to the head in the situation of the shaken
baby syndrome.” A complete autopsy revealed no other possible
cause of death. In Dr. Cumberland’s opinion, after speaking
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with an eye specialist and a neuropathologist, the only possible
cause of death was shaken baby syndrome. Dr. Cumberland found
the manner of death to be homicide, as the injuries were too
severe to have happened accidentally.
D. AFOSI Investigation
Special Agent (SA) Liesl D. Davenport, an Air Force Office
of Special Investigations (AFOSI) investigator, participated in
four interviews with Appellant. The first interview was
conducted on the 28th of June by a Federal Bureau of
Investigation (FBI) agent with SA Davenport sitting in.
Initially, Appellant was not a suspect because the
investigators had been told that Appellant was not home at all
that day. Appellant told the investigators during the first
interview that she went home at lunch because she had not been
feeling well. She told the investigators that she had taken
some medication once she arrived at home, placed Destiny in her
crib, and that she remained on the couch napping until SrA
Warren came to her door. Appellant stated that Jackson was
either in the kitchen or bathroom the entire time; she did not
recount any fight or argument.
During this first interview Appellant stated that she had
never seen Jackson handle the baby improperly. But she told the
agents that she believed Jackson had accidentally shaken Destiny
when she was unresponsive after he asked the Harrises to call
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911. Appellant said that Mrs. Harris told her that Jackson was
shaking the baby so much that Mrs. Harris had to tell Jackson to
put the baby down.
When the agents attempted to verify this point in an
interview with Mrs. Harris, she denied that Jackson had shaken
the baby or that she had told Appellant that version of the
events. Upon finding inconsistencies in Appellant’s story, the
agents began to view Appellant as a possible suspect.
SA Davenport conducted a second interview with Appellant
with another AFOSI agent, SA Carver, on the 15th of August. SA
Davenport led the interview. Because Appellant was a suspect at
this point, SA Davenport advised Appellant of her Article 31(b),
UCMJ, 10 U.S.C. §831 (b) (2000) rights, which she waived.
At this interview Appellant changed her story and stated
that Destiny had not been in her crib. Instead, Appellant
stated that she held Destiny the entire time she was home.
There was no mention of Appellant taking a nap on the couch in
the second interview. Appellant stated that she may have caused
Destiny’s injuries accidentally when she went to the door to
speak with SrA Warren. She thought she might have swung around
quickly when she turned away from the door, causing Destiny’s
head to snap back.
At this point, the investigators knew that Jackson and
Appellant had been arguing. But when SA Davenport asked
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Appellant about the argument she initially denied it.
Eventually, Appellant admitted that she and Jackson had argued
for twenty to thirty minutes during the time period in question.
However, Appellant remained adamant that she had not been angry
or frustrated when she left the apartment. Appellant maintained
that Mrs. Harris had told her that Jackson had possibly
accidentally injured the baby.
A third interview was conducted two days later. Appellant
was again read her Article 31(b), UCMJ, rights, which she
waived. During this interview Appellant admitted that she might
have accidentally caused Destiny’s injuries when she was playing
with her. She described how she would regularly throw Destiny
in the air and catch her, and how she thought that perhaps this
caused the injuries. She again stated that the accident also
might have happened when she was turning away from the door
after speaking with SrA Warren. Appellant told the investigators
that she tossed “it,” meaning Destiny, in the air twice on that
day.
Upon further questioning, Appellant asserted that only
Appellant or Jackson could have injured Destiny. When asked if
Jackson had injured Destiny, Appellant responded “no.”
According to SA Davenport, there was no additional pertinent
information gleaned from the fourth interview.
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E. Trial Testimony
In addition to introducing Appellant’s statements to
investigators, the prosecution introduced other statements made
by Appellant to establish her consciousness of guilt. Jackson
testified that, after the injuries to Destiny, Appellant, while
crying, told him that she might be responsible. Appellant also
told Jackson that they should not talk to AFOSI or the FBI and
that she thought Jackson was on “their” side and not hers.
The prosecution introduced evidence to establish Appellant’s
possible motives to injure Destiny. Stephanie Lewis, who was a
friend of Appellant’s sister, testified that Appellant had asked
her, prior to Destiny’s injury, if Lewis, who was separated from
the father of her children, thought her “man” might come back if
something happened to her children.
Appellant complained to Staff Sergeant (SSgt) Tynisha
Quick, a coworker, that because of money she spent on diapers
and formula for Destiny, Appellant did not have a phone, cable
television, or a social life. At one point, SSgt Quick observed
Appellant speak directly to Destiny, blaming her for all the
things she could no longer do.
SSgt Quick further testified that Appellant had told her
that Destiny was more responsive to Jackson than to her.
Appellant told SSgt Quick that Destiny would tremble and cry
every time Appellant went near her, but would stop when Jackson
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was near. SSgt Quick testified that Appellant told her that she
thought Jackson was trying to turn Destiny against her.
As will be discussed later when addressing Issue III, the
prosecution presented several instances of Appellant’s uncharged
misconduct relating to Destiny. Airman First Class (A1C)
Crystal E. Mills testified to an earlier incident where she saw
Appellant bite Destiny after the baby had bitten her. Destiny
began crying after Appellant bit her. According to A1C Mills,
Appellant ignored the cries. A1C also recounted instances where
Appellant would “flick” the hand of Destiny to get her to stop
doing things. SSgt Quick also recounted an incident where
Appellant “thumped” or “flicked” Destiny on the thigh when she
was misbehaving in a restaurant.2
Finally, the Government called two expert witnesses who
established the cause of Destiny’s death. As previously
discussed, Dr. Cumberland, a forensic pathologist from the
coroner’s office, explained his medical findings from the
autopsy. Dr. Sharon Cooper testified as an expert witness in
the field of developmental and forensic pediatrics. The defense
did not object to her credentials, and Dr. Cooper was recognized
by the court as an expert in her field.
Dr. Cooper stated that children under one year old were the
2
Trial counsel agreed at a motion hearing to exclude evidence
from Destiny’s autopsy that revealed evidence of previous severe
head trauma.
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most likely victims of fatal child abuse. She testified that
there is a high degree of recidivism in child abuse, and
specifically in shaken baby cases, meaning that an abuser will
continue to shake a baby over a period of time. Usually, the
shaking becomes more intense in each instance. Dr. Cooper also
testified that the most common perpetrators of this type of
abuse are parents.
Dr. Cooper then explained the specific medical findings
consistent with shaken baby syndrome. She stated that retinal
hemorrhaging, brain injury, and bone trauma are the three most
common symptoms. After going through the symptoms, Dr. Cooper
explained the common triggers that would cause a person to shake
a baby. According to Dr. Cooper, the most common cause is
persistent crying. She stated that a person would have to shake
a baby for about twenty seconds to inflict serious damage.
Dr. Cooper testified that she reviewed the medical,
investigative and social work records associated with this case.
She also interviewed Destiny’s primary care physician and her
foster mother. She observed all of the witnesses called during
the trial as well. After going over all of the evidence, Dr.
Cooper opined that Destiny died of an inflicted injury,
specifically, of shaken baby syndrome combined with blunt force
trauma. She specifically noted that Destiny’s patient records
from her initial treatment stated that Destiny exhibited
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swelling of the scalp and bruising on the side of the face.
This bruising and swelling was consistent with external blunt
force trauma, such as a baby would experience after being thrown
against a wall.
Dr. Cooper also explained the standard progression of
symptoms in a shaken baby case. It usually takes fifteen
minutes after the shaking has occurred for any symptoms to
appear. The symptoms manifest themselves in a change in mental
status or an abnormal cry. The abnormal cry stems from an
altered neural state, which causes breathing difficulty.
Jackson described this type of noise during his testimony.
The victim then becomes less responsive and less active.
Next, a victim will vomit. The vomit will not be normal,
because the child has lost neural functioning to the point where
the stomach is no longer digesting food. Finally, the baby will
arch her back, roll her eyes back in her head, and become stiff.
This is a classic tonic seizure, associated with abnormal
electrical activity in the brain. Dr. Cooper stated that a
baby’s eyes could be open after the trauma, but they would not
be able to track anything visually. All of Destiny’s symptoms,
as recounted by Jackson, were consistent with shaken baby
syndrome.
Dr. Cooper testified that it was unlikely that anything else
caused Destiny’s symptoms. She also stated that the act of
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patting the child on the back to try to dislodge vomit would not
cause the symptoms Destiny experienced. Running with an infant
in a person’s arms or tossing a baby in the air and catching her
would not cause this type of injury either.
The Government rested at the conclusion of Dr. Cooper’s
testimony. After the presentation of the prosecution’s case,
Appellant rested. In closing, the prosecution argued that the
evidence rebutted Appellant’s prior claim of an accidental
injury to Destiny and identified Appellant as the perpetrator of
the murder of Destiny. Appellant’s argument revolved around a
single point -- that the members could not “exclude Mr. Jackson
as a potential perpetrator of the offense.” After three hours
of deliberations, the panel returned a verdict finding Appellant
guilty of the unpremeditated murder of Destiny.
III. DISCUSSION
A. Appellant’s Opportunity to Impeach Jackson
1.
Appellant alleges the military judge erred under Military
Rule of Evidence (M.R.E.) 613 when he denied the defense request
to recall SA Davenport to establish alleged inconsistencies
between Jackson’s testimony at trial and a statement he made to
SA Davenport during the investigation. The purported
inconsistency related to Destiny’s circumstances when Appellant
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left her apartment. At trial Jackson testified that Destiny was
limp and non-responsive when Appellant left. Defense counsel
asserted that Jackson’s August 15 statement to SA Davenport
stated that Destiny was crying after Appellant left.
During cross-examination, defense counsel referenced
Jackson’s prior statements to investigators and the
investigators’ notes to establish that Jackson had changed
certain aspects of his story between statements, embellished his
trial testimony by including details that he had omitted from
his prior statements, and presented trial testimony that was
different in some respects from his prior statements. For
example, the defense had Jackson admit that he initially lied to
the FBI about whether he and Appellant were in a fight, and that
a prior statement made no reference to Appellant spitting on him
or Appellant speeding away from the apartment.
With respect to other questions about the substance of the
five prior statements Jackson made during the course of the
investigations, defense counsel attempted to refresh Jackson’s
recollection as to what he had said in these prior statements.
Jackson repeatedly responded that he either did not remember a
fact or did not remember what he had said in his statements.
While the trial counsel stated that the prosecution would not
object if the defense wanted to admit Jackson’s August 15th
statement to investigators, defense counsel declined the
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invitation.
After the Government concluded its case, defense counsel
sought to recall SA Davenport pursuant to M.R.E. 613(b) in order
to prove inconsistencies in Jackson’s testimony with extrinsic
evidence. Specifically, defense counsel explained to the
military judge during an Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2000), session that he expected SA Davenport to testify
that Jackson told her during the investigation that Destiny was
crying after Appellant left the house. The defense counsel
argued that the testimony of SA Davenport was extrinsic evidence
that contradicted testimony Jackson gave at trial.
The military judge did not allow defense counsel to call SA
Davenport. The military judge ruled that the statements were
not inconsistent because Jackson had simply stated that he did
not remember when he was asked about whether Destiny was crying.
The military judge opined that there is only an inconsistent
statement when the witness denies making the statement, and
Jackson had merely stated that he did not remember and did not
have any recollection of Destiny crying after Appellant left.
In his ruling, the military judge cited M.R.E. 608 rather
than the appropriate rule of evidence, M.R.E. 613. While the
military judge referred to M.R.E. 608, the explanation of the
ruling focused on whether the evidence could be admitted as a
prior inconsistent statement. Although the record is less than
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clear, the military judge appears to have determined that the
evidence could not be brought in under M.R.E. 613. Moreover,
the military judge instructed the members on prior inconsistent
statements with regard to Jackson’s testimony during final
instructions on the merits.
Defense counsel and counsel for the Government agreed that
the extrinsic evidence was for impeachment, rather than for
substantive purposes. We note that defense counsel attached SA
Davenport’s AFOSI notes from the August interview with Jackson
as an appellate exhibit and offer of proof and expressly chose
not to attach Jackson’s statements as appellate exhibits. The
notes support Appellant’s assertion that Jackson told the agent
that Destiny was crying after Appellant left the apartment.
2.
The process of impeachment by prior inconsistent statement
is a tool to attack the credibility and/or recollection of a
witness. “By showing self-contradiction, the witness can be
discredited as a person capable of error.” United States v.
Banker, 15 M.J. 207, 210 (C.M.A. 1983); 3A John H. Wigmore,
Evidence § 874 (Chadbourne rev. 1970). M.R.E. 613(b) provides
that “[e]xtrinsic evidence of a prior inconsistent statement by
a witness is not admissible unless the witness is afforded an
opportunity to explain or deny the same and the opposite party
is afforded an opportunity to explain or deny the same . . . .”
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If the inconsistency is admitted, extrinsic evidence is
generally not admissible. United States v. Gibson, 39 M.J. 319,
324 (C.M.A. 1994) (holding that “‘the more expedient practice’
is to disallow extrinsic evidence of a prior inconsistent
statement if the witness admits making the statement”)(citations
omitted). If the inconsistency is not admitted, or the witness
equivocates, extrinsic evidence may be admitted, but only for
impeachment. United States v. Damatta-Olivera, 37 M.J. 474, 478
(C.M.A. 1993) (“whether testimony is inconsistent with a prior
statement is not limited to diametrically opposed answers but
may be found as well in evasive answers, inability to recall,
silence, or changes of position”).
A decision to admit or exclude evidence is reviewed for an
abuse of discretion. Id. In this case, the military judge
erred when he apparently determined that a failure to remember
facts contained in a prior statement cannot be inconsistent with
in-court testimony that differs from those facts.3 This Court,
3
In contrast, the military judge did not err with respect to
defense counsel’s effort to impeach Jackson regarding
Appellant’s interaction at the apartment with Destiny on June
23. Defense counsel asserted that Jackson’s prior statement to
AFOSI stated that Appellant was lying on the couch playing with
Destiny. The military judge found that Jackson was not asked
about this during his testimony, that there was no
inconsistency, and that the defense had not established a
foundation for later impeachment. The record supports the
military judge’s findings, and this is a correct statement of
the law. See United States v. Hale, 422 U.S. 171, 176 (1975)
(citation omitted) (reasoning that “[a]s a preliminary matter .
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in Damatta-Olivera, 37 M.J. at 478 and United States v.
Meghdadi, 60 M.J. 438, 444 (C.A.A.F. 2005), has noted that an
inconsistency, for purposes of M.R.E. 613, may be found “not
only in diametrically opposed answers,” but also in “inability
to recall,” Damatta-Olivera, 37 M.J. at 478, or equivocation.
Meghdadi, 60 M.J. at 444.
A military judge has considerable discretion to determine
if the trial testimony is inconsistent with a prior statement.
Damatta-Olivera, 37 M.J. at 478; see also United States v.
Insana, 423 F.2d 1165, 1170 (2d Cir. 1970). But here the
military judge appears not to have understood that an inability
to recall or a “non-responsive” answer may present an
inconsistency for purposes of M.R.E. 613. Consequently, his
evidentiary ruling, based on an incorrect understanding of the
law, was an abuse of discretion. United States v. Roberts, 59
M.J. 323, 326 (C.A.A.F. 2004) (“A military judge abuses his
. . the court must be persuaded that the [prior] statements are
indeed inconsistent [with trial testimony].”). The military
judge did not abuse his discretion in rejecting the defense
attempt, under the guise of impeachment, to bring in “new
evidence” that related to a point that Jackson had not testified
to at trial. See Damatta-Olivera, 37 M.J. at 478 (stating that
“[t]he military judge has considerable discretion to determine
if trial testimony is inconsistent.”).
Similarly, we see no basis for Appellant’s assertion of
error with respect to an alleged third inconsistency regarding
whether Appellant threw anything at Jackson during their
argument. Defense counsel did not raise an inconsistency
between Jackson’s testimony and a prior statement with respect
to this matter at trial.
23
United States v. Harrow, 06-0474/AF
discretion when . . . he is incorrect about the applicable law,
or when he improperly applies the law.”).
Applying nonconstitutional harmless error analysis, we
conduct a de novo review to determine whether this error had a
substantial influence on the members’ verdict in the context of
the entire case. See Kotteakos v. United States, 328 U.S. 750,
764-65 (1946); United States v. Berry, 61 M.J. 91, 97 (C.A.A.F.
2005). We consider four factors: (1) the strength of the
government’s case; (2) the strength of the defense case; (3) the
materiality of the evidence in question; and (4) the quality of
the evidence in question. Berry, 61 M.J. at 98. When a “fact
was already obvious from . . . testimony at trial” and the
evidence in question “would not have provided any new
ammunition,” an error is likely to be harmless. United States
v. Cano, 61 M.J. 74, 77-78 (C.A.A.F. 2005); see also United
States v. Santos, 59 M.J. 317, 322 (C.A.A.F. 2004).
As outlined above, and as articulated by the lower court,
the Government presented a convincing case against Appellant.
The evidence shows that Appellant was in a rage, that she was
alone with the victim, that she admitted to investigators that
only she and Jackson were possible suspects, that she did not
believe Jackson injured the baby, that she was untruthful on
numerous occasions, and that the timeline and quality of the
injuries amply supported the Government’s version of the facts.
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We also note that Dr. Cooper’s medical testimony regarding the
standard progression of shaken baby syndrome was both unrebutted
and consistent with the description of Destiny’s symptoms.
Further, the timeline established by the Government’s witnesses,
alone or in combination with Appellant’s pretrial statements
regarding Jackson’s location when she left the apartment, make
Jackson an unlikely suspect.
The defense’s case consisted of cross-examination of the
Government’s witnesses in an attempt to show that it was
possible that Jackson, rather than Appellant, could have
committed the crime. The defense’s case was exceptionally weak
in light of Appellant’s statements that Jackson was in the
bathroom when she left and that she did not believe he injured
Destiny, as well as the evidence of Appellant’s admissions,
consciousness of guilt, and her rage at the time of Destiny’s
injuries. Finally, there was no credible refutation of the
Government timeline, which was persuasive evidence that
Destiny’s injuries were sustained while Jackson was locked in
the bathroom, given the few minutes that passed between when
Appellant left the apartment and when the 911 call was placed.
The materiality of the excluded extrinsic evidence of prior
inconsistent statements must be viewed with an eye to its
permissible purpose, which was for impeachment only. The
defense never sought to seek the admission of any of Jackson’s
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statements, which presumably contained the same inconsistency
noted in the investigator’s notes, for use as substantive
evidence under M.R.E. 801(d)(1)(A) or any other evidentiary
rule.
As the lower court articulated and the record reveals,
defense counsel effectively impeached Jackson with respect to
the prior inconsistent statements by intrinsic evidence.
Harrow, 62 M.J. at 656-57. While defense counsel did not move
to admit Jackson’s August 15 statement, he repeatedly referred
to it and Jackson’s other statements to investigators in his
cross-examination of Jackson. Defense counsel cross-examined
Jackson at length regarding his lie to the FBI, changes in his
story between statements, his inability to remember even after
having the opportunity to review his prior statements, his
embellishment of his trial testimony beyond what he relayed to
investigators, and the fact that his memory must have been
better when the statements were given. And we agree with the
lower court that “defense counsel used this impeachment
extensively and effectively in his closing argument.” Id. at
657.
Furthermore, the military judge gave an instruction
regarding inconsistent statements, reiterating the point that
Jackson’s credibility was at issue. Members are presumed to
follow the military judge’s instructions, United States v.
26
United States v. Harrow, 06-0474/AF
Taylor, 53 M.J. 195, 198 (C.A.A.F. 2000), and we have no basis
for concluding that they did not in this case.
The combination of cross-examination and argument by the
defense counsel impeached Jackson’s credibility and ability to
recall. The addition of the AFOSI agent’s testimony would have
been cumulative, and would not have changed the arguments
proffered by defense counsel to the members. Nor would it have
had a substantial influence on the members’ verdict. See
Santos, 59 M.J. at 322 (reasoning cumulative evidence was of
little probative value); see also United States v. Mitchell, 113
F.3d 1528, 1532 (10th Cir. 1997) (finding failure to admit
extrinsic evidence of witness’s prior inconsistent statement
harmless where defense counsel asked her whether she had made
the statement; although she testified she did not remember
making the statement, the jury was aware of the attack on her
credibility). Under the facts of this case, we cannot say that
a thorough impeachment of Jackson’s credibility and recollection
was not completed even absent the extrinsic evidence.
In light of all of the above factors, and given the purpose
for which M.R.E. 613 evidence may by used, the error was
harmless in this case.
B. M.R.E. 404(b) Evidence
1.
Defense counsel moved in limine for several pieces of
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evidence proffered by trial counsel to be excluded. The
evidence at issue was:
1) SSgt Quick’s testimony that Appellant thumped the baby hard
enough to make the baby scream.
2) A1C Mills’ testimony that Appellant flicked Destiny on the
body to punish her if Destiny reached for something.
3) Nina Harris’ testimony that she observed Appellant call
Destiny stupid and ugly, pull at Destiny by jerking her
arm, and grab her by the cheeks and pinched them hard when
she disobeyed.
4) Sharon Rogers’ and Deborah Gardner’s testimony that they
witnessed Appellant brushing the baby’s hair vigorously and
without care, and Mrs. Gardner’s testimony that she did so
for six hours straight after the baby’s brain surgery.
This occurred at the hospital after Destiny had been
shaken.
5) Nina Harris’ testimony that on one occasion Appellant left
Destiny at the Harris’ without food or diapers, then turned
off her cell phone and did not return that night.
The military judge ruled that the first three pieces of
testimony were admissible, but the last two were not.
In his ruling, the military judge determined that under
M.R.E. 404(b) the first three pieces of evidence tended to prove
a pattern of abuse, as well as intent. When the members were
properly instructed on the use of the M.R.E. 404(b) evidence,
however, they were instructed that it could only be used to show
Appellant’s intent or absence of accident. Appellant contends
that none of this evidence should have been admitted and that it
prejudiced her.
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2.
A decision to admit evidence is reviewed for abuse of
discretion. United States v. McCollum, 58 M.J. 323, 335
(C.A.A.F. 2003). In this case, the military judge applied the
correct test for the admissibility of uncharged misconduct under
M.R.E. 404(b). United States v. Reynolds, 29 M.J. 105, 109
(C.M.A. 1989). This Court recently summarized the analysis
under Reynolds: First, does the evidence reasonably support a
finding by the court members that Appellant committed prior
crimes, wrongs or acts? Second, what “fact . . . of
consequence” is made “more” or “less probable” by the existence
of this evidence? And last, is the “probative value . . .
substantially outweighed by the danger of unfair prejudice?”
United States v. Barnett, 63 M.J. 388, 394 (C.A.A.F. 2006)
(citations omitted).
The uncontroverted testimony describing each incident of
uncharged misconduct reasonably supports a finding by the court
members that Appellant did commit each of these alleged prior
acts.
We next address whether any of this evidence makes a fact
of consequence more or less probable. We begin by noting that
murder is a specific intent crime. This offense permits
conviction of lesser included offenses stemming from Destiny’s
death in the absence of specific intent to kill -- including but
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United States v. Harrow, 06-0474/AF
not limited to involuntary manslaughter, assault consummated by
a battery and negligent homicide. Manual for Courts-Martial,
United States pt. IV, para. 45.d. (2005 ed.) (MCM). While the
defense did not argue accident, evidence produced at trial,
through Appellant’s statements to investigators, supported an
argument that the injuries might have been accidentally
inflicted. The prosecution was entitled to present evidence to
rebut such an argument.
3.
Appellant argues that intent evidence is never admissible
unless a defendant specifically defends on the ground of either
lack of the requisite intent or accident. The Supreme Court,
examining this same question, unequivocally determined that
evidence of intent and lack of accident may be admitted
regardless of whether a defendant argues lack of intent because
every element of a crime must be proven by the prosecution.
Estelle v. McGuire, 502 U.S. 62, 69 (1991) (citing Mathews v.
United States, 485 U.S. 58, 64-65 (1988)).
This Court has dealt inconclusively with the holding of
Estelle in prior cases on the ground that Estelle involved a
state rule of evidence. Compare United States v. Diaz, 59 M.J.
79, 95 n.3 (C.A.A.F. 2003) (distinguishing Estelle), and United
States v. Morrison, 52 M.J. 117, 122-23 (C.A.A.F. 1999) (not
citing, but implicitly rejecting Estelle), with United States v.
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United States v. Harrow, 06-0474/AF
Whitner, 51 M.J. 457, 461 (C.A.A.F. 1999), and United States v.
Sweeney, 48 M.J. 117, 120 (C.A.A.F. 1998) (embracing the notion
that the prosecution must prove every element).
This Court’s intermittent efforts to distinguish Estelle as
a Supreme Court case addressing state, rather than federal, law
does not detract from the force of the basic tenet asserted by
the Supreme Court: “A simple plea of not guilty . . . puts the
prosecution to its proof as to all elements of the crime charged
. . . .” Mathews, 485 U.S. at 64-65 (1988) (reviewing a federal
bribery conviction); see also Old Chief v. United States, 519
U.S. 172, 199 (1997) (reviewing a federal firearm possession
conviction).
4.
But the question remains whether the relatively minor acts
admitted in this case under M.R.E. 404(b) in fact make intent to
kill or absence of accident more likely than not, and, if not,
whether Appellant was prejudiced by their admission.
We agree that the relevance of these minor acts to the
intent to kill is tenuous, at best. But we need not resolve the
issue of error where, as here, the question of prejudice is
easily decided. United States v. Hall, 56 M.J. 432, 437
(C.A.A.F. 2002); United States v. Nickoson, 15 C.M.A. 340, 344,
35 C.M.R. 312, 316 (1965).
We conclude that the admission of the acts under M.R.E.
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404(b) did not prejudice Appellant. The Government adduced
evidence at trial that Appellant shook Destiny with great force
for at least twenty seconds and either threw her against a wall
or used other force sufficient to result in serious blunt force
trauma to Destiny’s brain and the left side of her face,
including significant hemorrhaging of the brain and eyes and,
ultimately, death. In the context of the entire case, we are
convinced that acts of “flicking,” “pinching,” or “thumping” are
minor acts that did not have a substantial influence on the
members’ verdict in this case. Indeed, in his argument on
findings, the trial counsel did not even mention any of the
uncharged misconduct.
For the reasons stated above -- the weight of the remaining
evidence, combined with the weakness of the defense’s case -- we
conclude that any error stemming from the admission of this
evidence did not substantially prejudice Appellant. See
Barnett, 63 M.J. at 397 (holding that when the government
presents a strong case, the defense presents a weak case, and
the erroneously admitted M.R.E. 404(b) evidence was “of marginal
importance given the difference in contexts” between the
specifications and the incidents recounted in the erroneously
admitted evidence, the error was harmless); United States v.
Baumann, 54 M.J. 100, 105 (C.A.A.F. 2000) (reasoning that when
the “prosecution presented an overwhelming case,” the
32
United States v. Harrow, 06-0474/AF
appellant’s defense was “extremely weak,” and the military judge
properly instructed on the use of M.R.E. 404(b) evidence, the
error was harmless); United States v. Kerr, 51 M.J. 401, 405
(C.A.A.F. 1999) (holding that when the remainder of the
Government’s case was strong and the defense presented no
evidence to contradict it, instead relying “on suggestion and
insinuation,” the M.R.E. 404(b) error was harmless); United
States v. Corbett, 29 M.J. 253, 256 (C.M.A. 1989) (determining
that inadmissible M.R.E. 404(b) evidence had a minimal effect on
the members, considering all the other evidence presented at
trial, the weakness of appellant’s own testimony on the merits,
and the inadmissible evidence’s tenuous relevance); see also
United States v. Davis, 657 F.2d 637, 640 (4th Cir. 1981)
(holding that erroneous admission of M.R.E. 404(b) evidence was
harmless when the remaining evidence conclusively implicated the
appellant); United States v. Ezzell, 644 F.2d 1304, 1306 (9th
Cir. 1981) (holding that where evidence of guilt is
overwhelming, M.R.E. 404(b) error was harmless).
C. Profile Evidence
Dr. Cooper testified as an expert witness in the fields of
developmental and forensic psychiatry. She testified about
child abuse and shaken baby syndrome in general and her specific
findings in this case. The defense did not challenge her
methodology or the relevance or reliability of her testimony.
33
United States v. Harrow, 06-0474/AF
The defense counsel did raise the issue of impermissible profile
evidence and reiterated their understanding that the Government
did not intend to offer such evidence. The Government agreed.
Appellant challenges the following particulars of Dr.
Cooper’s testimony as impermissible profile evidence. First,
that the most common person to fatally abuse a child is a
biological parent. Defense counsel objected to this testimony,
but it was allowed by the military judge. Second, that the most
common trigger for baby shakings is persistent crying, which the
defense did not object to at trial. Finally, Dr. Cooper’s
testimony about the symptoms and progression of shaken baby
syndrome and her medical conclusion that Destiny’s primary
diagnosis was probably most consistent with an inflicted injury,
as opposed to an accidental injury. Defense counsel objected,
and the military judge overruled the objection.
Dr. Cooper did not offer an opinion as to which parent
abused the child in this case. Appellant argues that all of the
testimony above constituted impermissible profile evidence that
placed Appellant in the profiled category and excluded Destiny’s
father from the profiled category.
Profile evidence is evidence that presents a characteristic
profile or trait of an offender, and then places the accused’s
personal characteristic or trait within that profile as proof of
guilt. United States v. Rynning, 47 M.J. 420, 422 (C.A.A.F.
34
United States v. Harrow, 06-0474/AF
1998). In United States v. Banks, this Court held that
“generally, use of any characteristic ‘profile’ as evidence of
guilt or innocence in criminal trials is improper.” 36 M.J.
150, 161 (C.M.A. 1992). Such evidence is improper because it
treads too closely to character evidence offered to show that an
accused acted in conformity with that character and committed
the act in question, evidence prohibited under M.R.E. 404(b).
See Banks, 36 M.J. at 161.
This Court recognizes that characteristic evidence of the
abuser is distinguishable from evidence that focuses on the
characteristics of a battered child. United States v. Traum, 60
M.J. 226, 235 (C.A.A.F. 2004). Moreover, evidence of the
characteristics of a child abuser is further distinguishable
from evidence about the symptoms and progression of shaken baby
syndrome. This is true even if that medical testimony, tied to
other facts adduced at trial, makes it more likely that an
accused is the one guilty of the charged offense.
We agree with Appellant that two of Dr. Cooper’s statements
were inadmissible profile evidence. The statements that the
most common person to fatally abuse a child is a biological
parent, and the statement that the most common trigger for baby
shakings is persistent crying, are focused on characteristics of
the abuser, as opposed to characteristics of the child. Id. at
234-35. But the other evidence complained of -- symptoms and
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United States v. Harrow, 06-0474/AF
progression of shaken baby syndrome -- is not profile evidence.
Of course, Dr. Cooper’s statements relating to profile
evidence pertained equally to both parents -- Appellant and
Jackson were both Destiny’s biological parents, and Destiny’s
persistent crying was heard by both of them on the day she
sustained her fatal injuries.
None of the profile evidence placed Appellant in the
profiled category and exclude Destiny’s father from the profiled
category. Rather, it placed them both squarely within the
profiled category. Given that the case focused on which parent
was responsible for the injury, and that the profile evidence
applied equally to each of them, we fail to see the prejudice.
Consequently, any error in admitting this evidence was harmless.4
Appellant does not argue that evidence regarding the
progression and symptoms of shaken baby syndrome are either
inadmissible expert testimony or profile evidence per se.
Rather, the argument is that such testimony, described as a
“modified profile of Destiny’s child abuse,” constituted
impermissible profile evidence in this case because the
4
As the defense did not object at trial when Dr. Cooper
testified that the most common trigger for baby shakings is
persistent crying, we normally would review such errors under a
plain error analysis. United States v. Powell, 49 M.J. 460(C.A.A.F. 1998). We need not undertake a separate plain error
analysis in this case, as the issue can be resolved, along with
the evidence Appellant did object to, by determining whether any
error unduly prejudiced Appellant.
36
United States v. Harrow, 06-0474/AF
testimony lined up with other facts adduced at trial in a manner
that allowed the Government to argue that it was Appellant,
rather than Jackson, who committed the offense of unpremeditated
murder. We reject Appellant’s argument.
First, the evidence regarding the progressions and symptoms
of shaken baby syndrome focuses on the characteristics of the
child, and fits squarely within Traum. Second, we are aware of
no authority that suggests that otherwise admissible expert
testimony regarding the symptoms and progression of a medical
syndrome can be transformed into profile evidence because the
timing of the symptoms supports an argument that it was the
accused that committed the offense.
Evidence is not profile evidence simply because it tends to
incriminate an accused. The prohibition against profile
evidence does not prohibit otherwise admissible expert evidence,
simply because other facts tie the testimony to a conclusion
that an appellant was the one in the best position to have
committed the charged act.
D. Improvident Guilty Plea
Appellant contends her guilty plea to the larceny charge
stemming from her fraudulent insurance claim was improvident.
During the providency inquiry Appellant admitted that she
fraudulently made a claim to her insurance carrier so that the
carrier would pay for damage done to another airman’s car.
37
United States v. Harrow, 06-0474/AF
Appellant was not driving the car covered by her insurance
carrier when she collided with the other airman’s vehicle. In
fact, the accident occurred before Appellant had the insurance
upon which she made the claim. Appellant did not tell the
insurance company either of these facts and intended that they
pay the claim. As a result of Appellant’s misrepresentations,
the insurance carrier paid the other airman for damage Appellant
did to his car in the accident.
This Court rejects a guilty plea only where the record
shows a substantial basis in law and fact for questioning a
plea. United States v. Roderick, 62 M.J. 425, 428 (C.A.A.F.
2006). We review a military judge’s decision to accept a guilty
plea for an abuse of discretion. United States v. Phillippe, 63
M.J. 307, 309 (C.A.A.F. 2006). This Court permits the military
judge “in a borderline case . . . [to] give weight to the
defense evaluation of the evidence.” United States v.
McCrimmon, 60 M.J. 145, 152 (C.A.A.F. 2004) (citing United
States v. Clark, 28 M.J. 401, 407 (C.M.A. 1989)).
Appellant does not question that the military judge
properly stated the elements of the offense of a wrongful-
obtaining larceny. Nor does Appellant contend that Superior
Insurance Company had any obligation to pay a claim on an
uncovered car for an accident that took place outside of the
coverage period. Appellant nonetheless questions the factual
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United States v. Harrow, 06-0474/AF
sufficiency of the providency inquiry.
A guilty plea is provident if the facts elicited make out
each element of the charged offense. See United States v.
Garcia, 44 M.J. 496, 498 (C.A.A.F. 1996) (concluding that the
providence inquiry adequately established a factual basis
supporting each of those elements); United States v. Davenport,
9 M.J. 364, 367 (C.M.A. 1980) (holding that a plea of guilty is
provident where the factual circumstances as revealed by the
accused himself objectively support the alleged elements of the
offense).
In this case, the providence inquiry established that
insurance money in the amount of $729.65 was “wrongfully
obtained” from Superior Insurance for the use of Airman (Amn)
Hill, with the intent to defraud Superior Insurance of the use
and benefit of the money. See United States v. Riddle, 44 M.J.
282, 287 (C.A.A.F. 1996) (establishing larceny for intent to
steal pay entitlements to which appellant did not believe he was
entitled). Appellant had no entitlement to insurance for an
accident prior to her coverage period, as she acknowledged. As
the providence inquiry shows, Appellant designated Amn Hill to
be the recipient of the Superior Insurance payment. Appellant
stated that she intended Superior Insurance to pay the money and
that she “learned that Superior Insurance paid” Amn Hill.
A similar scenario is described in the MCM explanation of
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United States v. Harrow, 06-0474/AF
the offense of an obtaining type larceny: if a person “obtained
the delivery of another’s goods to a person or place designated
by the accused,” the accused is guilty of larceny if the other
elements of the offense are proven. MCM pt. IV, para.
46.c.(1)(b). We reject Appellant’s suggestion that the military
judge’s failure to elicit how Appellant “knew it was her
representation that deceived the insurance company,” or “why her
misrepresentation was an important factor in the insurance
company’s decision to pay,” or “when the $729.65 was paid by the
insurance company to Airman Hill,” alone or together, create any
basis, let alone a substantial basis, in law or fact for
questioning the sufficiency of the plea to this offense. See
United States v. Faircloth, 45 M.J. 172, 174 (C.A.A.F. 1996)
(declining to speculate post-trial on factual matters that might
have been contested at trial in the context of examining whether
a guilty plea was provident).
We similarly reject Appellant’s argument that the motive
for committing this offense -- that Appellant knew she was
supposed to pay Amn Hill for the damage to her car -- sets up a
matter inconsistent with her plea. See, e.g., MCM pt. IV, para.
46.f.(iii)(A) (recognizing that the relevant inquiry is whether
the accused had the requisite intent). Appellant’s suggestion
that her motive in wrongfully obtaining the insurance money
somehow places the facts of this case within the framework of a
40
United States v. Harrow, 06-0474/AF
“debt or the amount thereof is not the proper subject of a
larceny,” United States v. Mervine, 26 M.J. 482, 483-84 (C.M.A.
1988), is without merit.
E. Unauthorized Reduction in Pay Grade
At trial, Appellant pled guilty to being absent without
leave for four days. The Court of Criminal Appeals held that
her plea on this charge was improvident. Harrow, 62 M.J. at
662. After determining the plea was improvident the Court of
Criminal Appeals reassessed Appellant’s sentence to a
dishonorable discharge, twenty-four years and six months of
confinement, forfeiture of all pay and allowances, and reduction
to the grade of E-1. Because no reduction to E-1 was adjudged
at trial, Appellant argues that this was an unlawful increase in
her sentence.
We review a sentence reassessment by a Court of Criminal
Appeals for obvious miscarriages of justice or abuses of
discretion. United States v. Buber, 62 M.J. 476, 478 (C.A.A.F.
2006). The Government concedes that it was error to reassess
the sentence to include a reduction to E-1 when such reduction
was not adjudged at trial. At trial, Appellant was already an
E-1.
This abuse of discretion appears, however, to be an error
without any practical import, let alone, any prejudice. And
Appellant identifies none. This is not surprising. No logic
41
United States v. Harrow, 06-0474/AF
suggests that the Court of Criminal Appeals would have decreased
some other portion of the sentence assessment if it understood
that another portion of the sentence, the reduction in rank, was
not available to it.
Thus, while we agree that the lower court abused its
discretion in assessing a reduction to E-1 that was not adjudged
at trial, where Appellant was already an E-1, it is an increase
in punishment only in the most technical of senses, since the
reduction was void ab initio, and a nullity. We decline to
remand the case for a sentence reassessment under these
particular facts, for correction of an error that has not had,
and never could have, any negative effect upon Appellant.
Rather, we set aside that portion of the Court of Criminal
Appeals decision purporting to affirm reduction to E-1.
F. Post-trial and Appellate Delay
The final issue is whether Appellant was deprived of her
right to due process by the 1,467 days that elapsed between her
trial and completion of appellate review. Of that delay, 826
days was time between when the final briefs were submitted to
the Court of Criminal Appeals and the issuance of its decision.
Appellant contends she was prejudiced because, due to the
appellate delay, her lead appellate counsel was unable to argue
her case.
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United States v. Harrow, 06-0474/AF
In this case, the overall delay of 1,467 days between the
trial and completion of review at the Court of Criminal Appeals
is facially unreasonable. Because we conclude that the delay is
facially unreasonable, we examine the four factors set forth in
Barker v. Wingo, 407 U.S. 514, 530 (1972): (1) the length of
the delay; (2) the reasons for the delay; (3) the appellant’s
assertion of the right to timely review and appeal; and (4)
prejudice. United States v. Moreno, 63 M.J. 129, 135-36
(C.A.A.F. 2006). We need not engage in a separate analysis of
each factor where we can assume error and proceed directly to
the conclusion that any error was harmless beyond a reasonable
doubt. See United States v. Allison, 63 M.J. 365, 370 (C.A.A.F.
2006). This approach is appropriate in Appellant’s case.
Having considered the totality of the circumstances and
entire record, we conclude that any denial of Appellant’s right
to speedy post-trial review and appeal was harmless beyond a
reasonable doubt and that no relief is warranted.
IV. CONCLUSION
In evaluating Appellant’s assignments of error we have
considered not only the impact of each individual error, but
also any cumulative prejudice that could have arisen from a
combination or errors. See Banks, 36 M.J. at 170-71. We
conclude that neither individually nor in combination was
Appellant prejudiced by the errors in this case. The decision
43
United States v. Harrow, 06-0474/AF
of the United States Air Force Court of Criminal Appeals, except
for that portion purporting to affirm a reduction to E-1, is
affirmed.
44
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EFFRON, Chief Judge (concurring in part and in the result):
I concur in the majority opinion, subject to the following
with respect to Issues I and III: While I have reservations
both as to the adequacy of the opportunity to impeach Antonio
Jackson and as to the admissibility of Appellant’s prior acts of
misconduct, I agree with the majority that any errors in regard
to those matters were harmless in view of Appellant’s pretrial
statements and the other evidence in the case.