The Coast Guard Court issued a new published opinion today. United States v. Stellon, __ M.J. ___, No. 1264 (C.G. Ct. Crim. App. Oct. 25, 2007).
Stellon deals with a military judge’s limitations during cross-examination of the complaining witness in a rape case. Two years after she and Petty Officer Stellon had sexual intercourse (an act that Stellon confessed was non-consensual), the complaining witness had sex in a car and four days later reported that she had been raped. She later admitted that that report was untrue. She also, apparently, fabricated evidence, including ripping her panties. This fact seems particularly significant because her panties were allegedly ripped in the incident involving Petty Officer Stellon.
The military judge allowed sufficient cross-examination for the members to understand that the complaining witness had falsely reported a rape two years after the incident involving Petty Officer Stellon. But the military judge limited the amount of cross-examination, excluded the torn panties from the second incident from evidence, and refused to allow the defense to present evidence that an investigator had told her after she recanted her allegation that she might be charged with filing a false police report.
The Coast Guard Court upheld the military judge, ruling that he acted within his discretion to limit the cross-examination. The court reasoned:
Contrary to Appellant’s argument, we find no abuse of discretion by the military judge in limiting the details of AD’s 2004 false report, including the composite sketch. The record reveals that the military judge conscientiously evaluated the accused’s right to present material evidence to impeach AD under M.R.E. 608(b) and 403. He allowed the defense some cross-examination of AD and testimony by police investigators on the details of the 2004 complaint, in addition to AD’s admission that she had, in fact, filed such a false report with police.
Stellon, slip op. at 4.
Concerning the military judge’s exclusion of the ripped underwear evidence, the court again upheld the military judge, though with some disagreement with his reasoning:
When the defense later offered the underwear itself and the police officer’s testimony about it (R. at 801-02), the military judge excluded the evidence, at least partly under M.R.E. 412 as evidence of other sexual behavior. We find his invocation of M.R.E. 412 strained, but we see no basis for admitting the underwear evidence. According to counsel, that evidence would bear on AD’s credibility. The association of ripped underwear with a report of rape by AD was a point the 2002 and 2004 reports had in common. In other words, as Appellant puts it now, since she lied in 2004 when she told a story that included ripped underwear, the members should infer that she had lied in 2002 when she told a story that included ripped underwear. This point was conveyed during defense counsel’s closing argument, using the evidence that had been admitted. Further evidence of the ripped underwear to support this theory, in our view, runs afoul of M.R.E. 404(b): evidence of her act in 2004 “is not admissible . . . in order to show action in conformity therewith” in 2002; and the M.R.E. 608(b) exception does not reach the police officer’s testimony or the underwear itself because that evidence would be extrinsic evidence. The evidence was excludable on this basis.
Stellon, slip op. at 4-5.
As to the investigator’s statement to the complaining witness that she could be charged with a crime for her false report, the court held that “M.R.E. 608(c) could provide a basis for admission of evidence that AD had been advised that she could be charged with filing a false statement.” Id., slip op. at 5. But the court nevertheless upheld the military judge’s exclusion of the evidence because the defense never cited Military Rule of Evidence 608(c) when arguing for the evidence’s admissibility.