Opinion Analysis: A divided CAAF finds error and prejudice in the admission of a prior consistent statement, in United States v. Frost
CAAF decided the Army case of United States v. Frost, 79 M.J. 104, No. 18-0362/AR (CAAFlog case page) (link to slip op.), on July 30, 2019. Reviewing a military judge’s admission (over a defense objection) of a prior consistent statement by an alleged child victim of rape, a majority of CAAF finds error because the statement was made after the improper influence asserted by the defense. Considering that error in the context of otherwise-weak evidence of guilt, a smaller majority of the court concludes that it was not harmless. Accordingly, CAAF reverses the decision of the Army CCA and the findings and sentence, and it authorizes a rehearing.
Judge Ohlson writes for the court, joined by Chief Judge Stucky and Judge Ryan. Judge Sparks concurs in the finding of error but dissents from the finding of prejudice. Judge Maggs dissents.
Specialist (E-4) Frost was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of rape of a child. The child was Frost’s daughter – identified by the initials DF – born in 2007. Frost and DF’s mother – Ms. Moore – separated before DF was born, and they fought over custody of DF after she was born. A state court ultimately awarded custody to Ms. Moore (who lived in Georgia), with Frost allowed scheduled visits. One such visit occurred in the summer of 2013, in Texas (where Frost was stationed). Approximately one month after the visit, Ms. Moore and her boyfriend (Mr. Casey) reported to law enforcement that while sitting in the car “DF spontaneously made a statement to the effect of, ‘Daddy stuck his penis in my mouth.'” Slip op. at 2.
DF subsequently underwent a forensic interview in March 2014, in which she did not disclose any abuse by Frost. A second interview, in November 2014, also did not result in any allegation of abuse. Nevertheless, Frost was charged and an Article 32 preliminary hearing was conducted in April 2015. DF testified by telephone during the hearing but, again, did not disclose any abuse by Frost. After the hearing, Ms. Moore took DF to five sessions with a psychotherapist, Dr. Landry, in August 2015. According to Dr. Landry, DF told her that Frost “tried to put his pee-wee in my mouth.” Slip op. at 3. The following month, however, DF was interviewed by the prosecutors by telephone and she “once again stated that nothing sexual happened during the summer of 2013 with Appellant and that she did not tell her mother that anything did happen.” Slip op. at 3-4. “The court-martial proceeded nonetheless.” Slip op. at 4.
DF testified at trial in 2016 and said “that nearly three years earlier ‘my dad put his pee-pee in my mouth.’” Slip op. at 4. The defense impeached DF with her prior inconsistent statements (her earlier denials of abuse). The prosecution then called Dr. Landry, and the military judge allowed Dr. Landry to testify about DF’s September 2015 allegation of abuse on the basis that it was admissible under the medical diagnosis or treatment exception to the hearsay rule, Mil. R. Evid. 803(4). The defense objected but the Army CCA affirmed the military judge’s ruling admitting Dr. Landry’s testimony, and CAAF denied review of that issue. Slip op. at 4 n.3.
The prosecution also called Ms. Moore and Mr. Casey, both of whom testified that DF made the allegation of abuse in August 2013. The defense objected to that too, but the military judge admitted the statement (as repeated by both witnesses) as non-hearsay based on the rule for prior consistent statements, Mil. R. Evid. 801(d)(1)(B). In so doing, the military judge concluded that the defense claimed that Dr. Landry had improperly influenced DF, making DF’s statements to Ms. Moore and Mr. Casey admissible because they pre-dated Dr. Landry’s influence. The Army CCA affirmed that decision in a footnote, and CAAF granted review to determine:
Whether the military judge erred in admitting hearsay statements as prior consistent statements under Mil.R.Evid. 801(d)(1)(B)(i) where the defense theory posited the improper influence or motive preceded the allegedly consistent statements.
A majority of the court finds that the military judge was wrong because the “defense’s sole theory and line of approach . . . was that Ms. Moore, motivated by a desire to obtain sole custody of her children, exerted an improper influence on DF prior to DF’s August 24, 2013, remark [in the car].” Slip op. at 11.
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. For example, DF’s statement in the car alleging that Frost orally raped her is an out-of-court statement offered to prove that fact. The definition of hearsay, however, excludes a prior consistent statement offered under certain situations. At the time of Frost’s trial, hearsay did not include a prior statement by a witness that:
is consistent with the declarant’s [witness’s] testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying
Mil. R. Evid. 801(d)(1)(B)(i). In other words, if a witness testifies for one side and the other side claims that the testimony is the product of an improper influence, the proponent of the witness’s testimony may introduce evidence that the witness said the same thing prior to the occurrence of the claimed improper influence (thereby showing that the testimony was not changed by the influence). Of note, after Frost’s court-martial began the military rule was amended to mirror an amendment to the equivalent federal rule of evidence that says that any prior consistent statement properly admitted for rehabilitation is not hearsay when it is offered:
to rehabilitate the declarant’s credibility as a witness when attacked on another ground.
Mil. R. Evid 801(d)(1)(B)(ii) (2016) (federal rule change discussed here) (Mil. R. Evid. change noted here). That new rule is not, however, a carte blanche authority for the admission of prior statements. See Notes of Advisory Committee on 2014 amendments, Fed. R. Evid. 801 (“The amendment does not make any consistent statement admissible that was not admissible previously – the only difference is that prior consistent statements otherwise admissible for rehabilitation are now admissible substantively as well.”); Analysis of Mil. R. Evid. 801(d)(1)(B)(ii), Appendix 22 at 61, MCM (2016 ed.) (“prior consistent statements under the amendment may be brought before the factfinder only if they properly rehabilitate a witness whose credibility has been attacked.”); United States v. Finch, 78 M.J. 781, 788 (A. Ct. Crim. App. 2019) (“a prior consistent statement admitted under Part (ii) must be probative of some fact at issue. And repetition alone will not meet the offering party’s burden.”). It is also not at issue in Frost.
The military judge admitted DF’s prior consistent statement (her allegation to Ms. Moore and Mr. Casey in the car in August 2013) as non-hearsay on the basis that “the defense had alleged the improper influence occurred in August 2015 during Dr. Landry’s counseling sessions with DF.” Slip op. at 9. Once the military judge found that the defense claimed that Dr. Landry improperly influenced DF’s testimony, the August 2013 statement was admissible as a prior consistent statement because it predated DF’s influence. But Judge Ohlson’s opinion for the majority holds that the military judge’s finding that the defense claimed an improper influence by Dr. Landry was “unsupported by the record.” Slip op. at 9. Judge Ohlson explains:
Reading the record in its entirety, it is clear that the defense’s sole theory and line of approach during opening statement, questioning, and closing argument at the court-martial was that Ms. Moore, motivated by a desire to obtain sole custody of her children, exerted an improper influence on DF prior to DF’s August 24, 2013, remark. Statements made after an improper influence arose do not rehabilitate a witness’s credibility. See McCaskey, 30 M.J. at 192. Therefore, the military judge made a clearly erroneous finding of fact when he determined that the defense had alleged that Dr. Landry exerted an improper influence on DF in August of 2015. Moreover, based on that clearly erroneous finding, the military judge’s decision to admit DF’s August 24, 2013, statement was outside the range of choices reasonably arising from the law and the applicable facts. United States v. Stellato, 74 M.J. 473, 480 (C.A.A.F. 2015).
Slip op. at 11 (emphases added).
Having found error, the majority looks for prejudice. The erroneous admission of evidence is tested for prejudice by weighing four factors: “(1) the strength of the Government’s case, (2) the strength of the defense case, (3) the materiality of the evi-dence in question, and (4) the quality of the evidence in question.” Slip op. at 11 (citations omitted). Furthermore, Judge Ohlson explains that because the defense objected, the Government Division “bears the burden of demonstrating that the admission of erroneous evidence is harmless.” Slip op. at 11 (quoting United States v. Flesher, 73 M.J. 303, 318 (C.A.A.F. 2014) (CAAFlog case page). The majority finds that the Government Division fails to meet that burden for three reasons:
First, the Government’s case was weak. DF did testify at trial that Appellant had sexually abused her, but the credibility of this allegation was called into serious question not merely because of Ms. Moore’s asserted improper influence on DF when DF was just six years old, but also because of DF’s multiple denials of abuse to a series of different people representing several different institutions over an extended period of time. . . .
Second, the defense presented a fairly robust case on behalf of Appellant. Defense counsel was able to elicit that Ms. Moore had been dishonest in the past and had a clear and compelling motive to improperly influence her six-year-old daughter into making a false allegation against Appellant.
And third, the materiality and quality of the improperly admitted evidence was likely substantial because it went to the heart of the matter in dispute: whether Appellant raped his daughter. Indeed, the Government made it clear that it introduced the improperly admitted evidence in order to bolster the credibility of the allegations that DF made from the witness stand.
Slip op. at 12-13.
Judge Sparks dissents from the finding of prejudice because he disagrees with all three parts of Judge Ohlson’s reasoning. Judge Sparks finds that “the Government’s case was strong” because DF testified that the offense occurred, because she described a piercing in Frost’s penis that “was something she likely would have only known if she had seen it,” and because the military judge assessed DF’s “credibility and found her testimony credible.” Sparks, J. con. op. at 1. Judge Sparks also finds that the the defense case “was not particularly strong” and that “the military judge was best situated to assess the defense efforts to impeach the child-witness and concluded those efforts were insufficient.” Sparks, J. con. op. at 1-2. Finally, Judge Sparks explains:
Ultimately, I find no prejudice based largely on the third and fourth factors. The improperly admitted hearsay statements were not material, as this evidence was cumulative of evidence already testified to at trial. Without objection, DF testified that she told Ms. Moore and Mr. Casey about what occurred with Appellant. The improperly admitted hearsay statements added insignificant detail beyond the unobjected-to testimony by DF. In light of the overlap in testimony, I am persuaded that the improperly admitted hearsay statements were not qualitatively significant and could not have prejudiced Appellant’s case.
Sparks, J. con. op. at 2.
Judge Maggs does not consider prejudice at all, however, because he finds no error. Specifically, he disagrees with the majority’s conclusion that Frost’s defense did not imply an improper influence of DF by Dr. Landry in 2015. He writes:
appellate judges must afford considerable deference to a military judge’s assessment of whether a party has made a charge of improper motive.
In my view, consistent with these deferential standards, the military judge in this case could have concluded for several reasons that civilian defense counsel had expressly or impliedly charged that Dr. Landry had improperly influenced DF during her counseling sessions.
Maggs, J. diss. op. at 3 (citations omitted). Reviewing the record, Judge Maggs finds that “the military judge had discretion to decide that civilian defense counsel, through these questions, was implicitly arguing that DF changed her story after she spoke to Dr. Landry because Dr. Landry somehow improperly influenced her.” Diss. op. at 4. Such a finding makes the consistent statements that predated Dr. Landry’s involvement admissible under Mil. R. Evid. 801(d)(1)(B).
A majority of the court having found error and prejudice, however, the findings and sentence are reversed with a rehearing authorized.