ACCA came out with a published opinion today, its first in more than two months. United States v. Davis, __ M.J. ___, No. ARMY 20041240 (A. Ct. Crim. App. Sept. 28, 2007).

Like far too many court-martial cases, Davis was a case about child sex abuse. (Has anyone done a study of why we see so many of these cases in the military justice system?)

Staff Sergeant Davis pled guilty to one indecent acts on divers occasions spec involving Stepdaughter #1 [MR] and pled not guilty but was convicted of a second spec involving his Stepdaughter #2 [LM].

ACCA uses the case to resolve an issue of first impression: whether in a mixed plea case, a military judge may consider the accused’s statements from the Care inquiry in ruling on the admissibility of evidence in the contested portion of the case. Held: Not unless the accused knowingly consents to such a use.

To prove up the molestation of Stepdaughter #2, the prosecution sought to introduce Stepdaughter #1’s testimony about his molestation of her several years before. The defense objected. The military judge overruled the objection, finding that the events were sufficiently similar to overcome a Military Rule of Evidence 403 objection to this evidence that would otherwise be admissible under Rule 414. In assessing the offenses’ similarity, the military judge indicated that he considered what SSG Davis had said about the previous molestation during his Care inquiry.

In holding that the military judge erred by considering the Care inquiry in ruling on the admissibility of evidence on the disputed specification, ACCA first observed, “When making evidentiary rulings, a military judge is not bound by the rules of evidence. Mil. R. Evid. 104(a).” Davis, slip op. at 7. ACCA nevertheless held “that, absent any affirmative waiver by appellant — of which there was none in this case — the military judge could not consider statements made during the providence inquiry for such evidentiary rulings.” Id.

ACCA reasoned that the “judicial policy limiting the use of judicial admissions made during a guilty plea inquiry is a long-standing tenet of military justice.” Id. (citing United States v. Ramelb, 44 M.J. 625, 628 (A. Ct. Crim. App. 1996)).

Most significantly, ACCA cited United States v. Grijalva, 55 M.J. 223, 228 (C.A.A.F. 2001), in support of the proposition that statements made during a providence inquiry may not be considered “for a purpose not within [the accused’s] limited waiver of the right against self-incrimination.” Davis, slip op. at 8.

At first I was skeptical about Davis‘s holding, but ACCA’s reasoning here convinced me. ACCA doesn’t hold that a military judge may never use an accused’s statements during the providence inquiry in ruling on the admissibility of evidence going to another charge; rather, ACCA simply holds that a military judge may not do so unless the accused knowingly and intelligently consented to doing so. If the accused wants to plead out to one spec while litigating another spec, the government can seek to make this a term in any pretrial agreement. So this holding, whether right or wrong. will probably have little long term effect.

Okay, so far ACCA is one-for-one. ACCA then rules on whether the evidence of molestation of Stepdaughter #1 was relevant to the charged molestation of Stepdaughter #2 omitting consideration of anything Davis said during his providence inquiry. Davis, slip op. at 9. Yes; slam dunk. Id., slip op. at 9-10 (citing United States v. Wright, 53 M.J. 476, 482 (C.A.A.F. 2000)). Now ACCA is two-for-two.

But the next section of ACCA’s opinion is troubling:

Additionally, we note MR’s testimony was relevant entirely apart from its value in demonstrating appellant’s propensity to molest his stepdaughter; her testimony explained why she worried what her stepfather might be doing to LM and why MR felt the need to create a commotion. In other words, her deliberate attempt to make noise and get her father out of LM’s bedroom made sense because MR knew from firsthand experience there was reason to suspect her father was doing something criminal to her sister. MR’s testimony also served to explain her questioning of her sister and her careful attention to LM’s body language and behavior, all of which were particularly relevant given appellant’s strategy of contesting LM’s credibility and attributing LM’s statements to some form of instigation by MR.

Id., slip op. at 10-11.

In other words, ACCA is saying that the evidence was independently relevant to prove why Stepdaughter #1 suspected that SSG Davis had committed a criminal act with Stepdaughter #2. ACCA might be right or it might be horribly wrong, depending on just what the final sentence quoted above means. The evidence about MR’s thinking couldn’t have been admissible in the first instance, but could have become admissible as the result of cross-examination of MR. Unfortunately ACCA’s opinion doesn’t adequately distinguish the two possibilities.

Imagine a witness taking the stand and being asked by the prosecutor, “Do you think the accused did it?” And then, if the military judge for some unfathomable reason let the witness answer the question, the prosecutor followed it up with, “And could you please explain to the court why you think the accused did it?” Let’s be even more specific. What if the prosecutor had called Stepdaughter #1 [MR] to the stand and asked her, “Do you think the accused molested your sister?” If there were no objection or if an objection were overruled, it would be reversible error for her to answer, “Yes.” And then if the prosecutor asked, “Could you please tell the court why,” it would be another reversible error if she were allowed to answer, “Because he did it to me.” It is irrelevant WHY Stepdaughter #1 made noise in the bathroom, though the fact that she did and the accused’s response are EXTREMELY relevant. Of course the defense might open the door to her reasons through its cross-examination. But surely the prosecution can’t open that door itself. Similarly, it is irrelevant WHY Stepdaughter #1 suspected molestation by the accused as the cause of her sister’s dismay, though the fact that she noted her sister’s distress and inquired about it, yielding an excited utterance is EXTREMELY relevant. Once again, cross-examination might open the door to questions on redirect to explain why Stepdaughter #1 questioned her sister, but the prosecution can’t open the door itself.

It would have been helpful if ACCA’s decision provided more details about how the defense “attribut[ed] [Stepdaughter #2’s] statements to some form of instigation by [Stepdaughter #1].” Unless the defense has somehow opened the door to questions about why a witness believes the accused is guilty, a military practitioner who relies on this part of ACCA’s opinion will likely be planting a time bomb in the case that will explode during appellate review.

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