CAAFlog » September 2015 Term » United States v. Martin

CAAF decided the Marine Corps of United States v. Martin, 75 M.J. 321, No. 15-0754/MC (CAAFlog case page) (link to slip op.), on Friday, June 17, 2016. With a majority of the court finding that defense counsel invited the erroneous admission of human lie detector testimony, CAAF affirms the appellant’s conviction of wrongful sexual contact and the decision of the Navy-Marine Corps CCA. However, two judges dissent with a strongly-worded opinion.

Judge Ohlson writes for the court, joined by Judge Ryan and Senior Judge Cox. Judge Stucky dissents, joined by Chief Judge Erdmann.

Sergeant Martin was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer and enlisted members, of one specification of wrongful sexual contact in violation of Article 120(m) (2006). The members sentenced him to reduction to E-1 and a bad-conduct discharge.

The conviction was based on Martin’s alleged sexual touching of a sleeping female subordinate (identified by the initials CRI) who was also the wife of another Marine. At trial Martin’s defense focused on attacking the credibility of the alleged victim – the chief prosecution witness – asserting that her allegation was fabricated. But the prosecution also called the alleged victim’s husband to testify, as he was sleeping next to his wife at the time of the alleged assault, and the husband testified on direct examination about how his wife’s demeanor changed after the night in question. Then, both the prosecution and the defense asked the husband to opine about the truth of his wife’s allegation against Martin, and both sides argued the husband’s opinion about the truthfulness of his wife’s allegation in closing argument.

The Navy-Marine Corps CCA found that the husband’s opinion constituted improper human lie detector testimony, which is “an opinion as to whether [a] person was truthful in making a specific statement regarding a fact at issue in the case.” United States v. Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014) (CAAFlog case page) (citation omitted). However, the CCA found that the admission of that improper testimony was harmless and affirmed the conviction. CAAF then granted review of a specified issue questioning the CCA’s harmlessness determination:

Specified issue: Whether the Court of Criminal Appeals erred in holding that the human lie detector testimony offered by the alleged victim’s husband was not materially prejudicial.

The Judge Advocate General of the Navy then certified a second issue challenging the underlying finding of error on the basis that it was invited by the defense:

Certified issue: Did trial defense counsel invite error when he opened the door to human lie detector testimony during the cross-examination of the victim’s husband?

Writing for the majority, Judge Ohlson finds that the error was invited by the defense in cross-examination after the prosecution called the husband for a proper purpose, answering the certified issue in the affirmative and avoiding the granted issue. Writing for the dissenters, however, Judge Stucky asserts that “the scales of justice were tipped by grossly improper testimony from the victim’s husband explaining why he believed that his wife was ‘telling the truth.'” Diss. op. at 1.

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Audio of this week’s Project Outreach oral arguments is available at the following links:

United States v. Harrell, No. 16-007/AF (CAAFlog case page): Oral argument audio

United States v. Martin, 15-0754/MC (CAAFlog case page): Oral argument audio

CAAF will hear oral argument in the Marine Corps case of United States v. Martin, 15-0754/MC (CAAFlog case page), on Wednesday, April 6, 2016, at 9 a.m., at the Wood Auditorium at the Air Command and Staff College, Maxwell AFB, Alabama. The case presents two issues involving improper human lie detector testimony; the first specified by the court and the second certified by the Judge Advocate General of the Navy:

Specified issue: Whether the Court of Criminal Appeals erred in holding that the human lie detector testimony offered by the alleged victim’s husband was not materially prejudicial.

Certified issue: Did trial defense counsel invite error when he opened the door to human lie detector testimony during the cross-examination of the victim’s husband?

The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer and enlisted members, of one specification of wrongful sexual contact in violation of Article 120(m) (2006). The members sentenced him to reduction to E-1 and a bad-conduct discharge.

The appellant’s conviction arose from an alleged incident involving a female subordinate (identified as “CRI”) who was also the wife of another Marine. While CRI and her husband slept in a bed at a house party, the appellant allegedly entered the room and penetrated CRI’s vagina with his fingers. CRI awoke to this violation, “felt Appellant’s fingers inside her vagina,” and saw the appellant “kneeling on the floor next to the bed.” Gov’t Br. at 3. She didn’t move for “approximately three to five minutes,” and then rolled away from the appellant and unsuccessfully attempted to wake her husband. Gov’t Br. at 4. She then went to the bathroom and cried, and then returned to the bed and fell back asleep. Gov’t Br. at 4. CRI told her military mentor and her husband about the alleged incident within approximately one week of its occurrence, but no report to law enforcement was made until the mentor made a report approximately one year later. Gov’t Br. at 4-5. An investigation followed that report and the appellant was charged.

The appellant’s trial strategy was to attack CRI’s credibility and assert that her allegation was fabricated. This strategy was supported by the fact that CRI’s husband initially disbelieved her allegation, with the husband going so far as to initially believe that he was the one who touched her (if anyone had touched her). The husband testified at trial and was asked by both sides to opine about the truth of his wife’s allegation. He testified about his initial disbelief but that his opinion changed based on his wife’s conduct. Neither side objected to this improper human lie detector testimony, and the NMCCA found that it was plain error for the military judge to admit it. However, the CCA found no prejudice from this error based on four factors: (1) other testimony that CRI was an untruthful person; (2) the likely negligible impact of a husband’s testimony that he believes his wife; (3) the defense role in the error and failure to request a curative instruction, and; (4) the (standard form) instructions ultimately provided to the members. United States v. Martin, No. 201400315, slip op. at 9 (N-M. Ct. Crim. App. Jun. 18, 2015).

CAAF then granted review of the specified issue (questioning the CCA’s finding of harmlessness). The JAG subsequently certified the invited error issue; a certification that I discussed here as strange because the CCA’s opinion specifically noted the defense’s role in the husband’s improper commentary on the truthfulness of his wife’s allegation against the appellant.

The briefs suggest that next week’s oral argument will be lively. While the appellant largely focuses on the centrality of CRI’s credibility to the prosecution’s case, the Government disputes that the trial counsel elicited human lie detector testimony from the husband on direct examination. Instead, the Government makes the incredible assertion that the husband’s direct testimony about her wife’s conduct after the alleged assault was merely the husband’s admissible lay opinion that he could not have touched his wife on the night in question.

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The Navy JAG certified a case to CAAF last week:

No. 16-0122/MC. U.S. v. Beau T. Martin. CCA 201400315. Notice is hereby given that a certificate of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 this date on the following issue:

DID TRIAL DEFENSE COUNSEL INVITE ERROR WHEN HE OPENED THE DOOR TO HUMAN LIE DETECTOR TESTIMONY DURING THE CROSS-EXAMINATION OF THE VICTIM’S HUSBAND?

The NMCCA’s decision is available here. The certification is strange because the CCA didn’t just affirm the findings and sentence (after finding that the admission of human lie detector testimony was harmless), but it also noted that:

We are aware that the inadmissible opinion testimony originated with the defense during cross-examination. We are also aware of the “invited response” or “invited reply” doctrine, which permits the prosecution to offer comment or testimony as a fair response to claims made by the defense. See United States v. Carter, 61 M.J. 30, 33 (C.A.A.F. 2005). See also United States v. Lewis, 69 M.J. 379, 384 (C.A.A.F. 2011) (“limitation on comments cannot be used by the defense as both a shield and a sword.”) (citations omitted). However, this doctrine does not obviate the error.

United States v. Martin, No. 201400315, slip op. at 8, n.10 (N-M. Ct. Crim. App. Jun. 18, 2015) (emphasis added). The certified issue seems to merely force CAAF to reach the tautological conclusion that an invited error is still an error. Though, perhaps CAAF will go further and limit the use of this doctrine. After all:

Courts have not intended by any means to encourage the practice of zealous counsel’s going “out of bounds” in the manner of defense counsel here, or to encourage prosecutors to respond to the “invitation.” Reviewing courts ought not to be put in the position of weighing which of two inappropriate arguments was the lesser. “Invited responses” can be effectively discouraged by prompt action from the bench in the form of corrective instructions to the jury and, when necessary, an admonition to the errant advocate.

United States v. Young, 470 U.S. 1, 13 (1985).

Update: I forgot that CAAF previously granted review in this case (discussed here) of the CCA’s finding of harmlessness. However, I still think the certification is strange.

CAAF also granted review in an Air Force case:

No. 16-0007/AF. U.S. v. Calyx E. Harrell. CCA 38538. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

WHETHER EVIDENCE OBTAINED FROM A POLICE SEARCH OF APPELLANT’S VEHICLE ON OR ABOUT AUGUST 4, 2010, WAS OBTAINED IN VIOLATION OF THE FOURTH AMENDMENT AND SHOULD HAVE BEEN SUPPRESSED.

Briefs will be filed under Rule 25.

The AFCCA’s decision is available here and reveals that the search of the appellant’s vehicle occurred after a police dog gave indications of contraband drugs within (marijuana and glass pipes were found).

Finally, CAAF summarily reversed convictions of aggravated assault and reckless endangerment – but affirmed a conviction of the lesser included offense of assault consummated by a battery – in a trailer case to United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. Feb. 23, 2015) (CAAFlog case page):

No. 15-0747/AR. U.S. v. Kenneth A.R. Pinkela. CCA 20120649. On consideration of Appellant’s petition for grant of review of the decision of the United States Army Court of Criminal Appeals, and in light of United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. 2015), we conclude that the evidence was legally insufficient to find beyond a reasonable doubt that Appellant committed the offenses of aggravated assault and reckless endangerment. We further conclude that the evidence was sufficient to affirm assault consummated by a battery as a lesser included offense of aggravated assault. Accordingly, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO FIND BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED AGGRAVATED ASSAULT AND RECKLESS ENDANGERMENT IN VIOLATION OF ARTICLES 128 AND 134, UCMJ, BY ENGAGING IN UNPROTECTED SEX WHILE HIV-POSITIVE IN LIGHT OF UNITED STATES v. GUTIERREZ, 74 M.J. 61 (C.A.A.F. 2015).

The decision of the United States Army Court of Criminal Appeals as to Charges I and IV and their specifications and the sentence is reversed. The findings of guilty as to Charge IV and its specification are set aside and dismissed. The findings of guilty as to Charge I and its specification are affirmed only as to the lesser included offense of assault consummated by a battery. The remaining findings are affirmed. The record is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals to either reassess the sentence based on the affirmed findings or order a sentence rehearing.