United States v. Rappaport

DECISION CANELLOS, Senior Judge: The accused was convicted, contrary to his pleas, of two specifications of adultery, each specification alleging divers occasions with different women, conduct unbecoming an officer by engaging in sodomy with one of the women, three specifications of wrongful use of marihuana, in violation of Articles 133 and 134, U.C.M.J., 10 U.S.C. §§ 933, 934, and a separate specification of sodomy under Article 125, U.C.M.J., 10 U.S.C. § 925. The approved sentence extends to a dismissal from the service, confinement at hard labor for six months, and forfeiture of $1,500.00 per month for six months. On appeal, the accused assigns eight errors for our consideration and invites our attention to seven issues raised by the trial defense counsel in his Goode response.1 In addition, this Court specified the following issue: DID THE MILITARY JUDGE ERR TO THE SUBSTANTIAL PREJUDICE OF THE ACCUSED WHEN HE ALLOWED DOCTOR B AND MRS. S TO TESTIFY, OYER DEFENSE OBJECTION, AS TO PRIOR ACTS OF UNCHARGED MISCONDUCT BY THE ACCUSED? We will discuss three of the accused’s assignments of error in addition to the specified issue. These are: the military judge erred in not compelling the government to produce a defense requested witness; the military judge erred in admitting an extract from a Department of Justice pamphlet; and, private consensual sodomy between adults of the opposite sex cannot constitutionally be prohibited by Article 125, U.C.M.J. Before we can discuss any aspect of the case, a review of the salient facts is necessary. The accused was an Air Force psychologist working at MacDill A.F.B. He is married and has three children. Sometime in the middle of 1979, he met Mary Ellen, who was, at the time, an Air Force officer. They began an affair which included acts of sexual intercourse, mutual acts of sodomy, and use of marihuana. The accused claimed the affair ended on Thanksgiving Day of 1980, while Mary Ellen maintained that it ended on December 31, 1980. The date is important because the Charges were received by the officer exercising summary court-martial jurisdiction on 20 December 1982; therefore, any offense which was committed before 20 December 1980 and is subject to a two year statute of limitations (one adultery and one use of marihuana specification) is barred from prosecution. Article 43, U.C.M.J., 10 U.S.C. § 843; M.C.M., 1969 (Rev), para. 68 c. Independent of the above, Donna, a former patient of the accused, complained that while she was a patient, they engaged in sexual intercourse, sodomy, and use of marihuana. Donna was married at the time to an Air Force officer, and was experiencing marital problems associated with an abusive husband. The accused admitted that Donna was a former patient, but denied that he engaged in any of the wrongful acts as alleged by Donna. He claimed that she suffered from a psychiatric problem, the result of which is she either imagined these occurrences or she lied to get even with him for her husband’s administrative separation from the Air Force.2 [711] I The first issue we will discuss deals with the denial by the military judge of a defense request that he order the appearance of Staff Sergeant Janice Beaver, an active duty non-commissioned officer, as a witness on the merits. Sgt Beaver lived in the same apartment complex as Mary Ellen, and she knew her well from the time she moved into the complex until Mary Ellen moved. At the time of trial, Sgt Beaver was assigned in Germany. The right of an accused to compel the attendance of witnesses is constitutionally and statutorily protected. Sixth Amendment, United States Constitution; Article 46, U.C.M.J., 10 U.S.C. § 846; United States v. Iturralde-Aponte, 1 M.J. 196 (C.M.A.1975). This right is not absolute; it requires a consideration of the materiality and relevancy of the expected testimony. Once materiality has been established, the government must either produce the witness or abate the proceedings. United States v. Carpenter, 1 M.J. 384 (C.M.A. 1976). The question of whether to order the production of the witness is within the sound discretion of the military judge. United States v. Tangpuz, 5 M.J. 426 (C.M. A.1978). The defense made an offer of proof at trial that Sgt Beaver could provide evidence that the accused and Mary Ellen terminated their relationship in November 1980, and that therefore the statute of limitations would act as a bar to trial on the marihuana and adultery charges which involved Mary Ellen. We have reviewed the affidavit executed by Sgt Beaver and, in pertinent part, it provides: I remember that she (Mary Ellen) told me of putting all the things he (the accused) had given her in a box and taking it to his office to give them all back to him. The manner in which she related this seemed to indicate this was the point at which the relationship was terminated. I am reasonably sure this was in the October or November time frame. We find that the statement of Sgt Beaver is vague and uncertain and is not material and relevant to the issue of when the last act of sexual intercourse occurred between the accused and Mary Ellen and when they last used marihuana together. MiLR.Evid. 401. Therefore, we find, on the facts, that the military judge did not abuse his discretion by denying the defense request for the production of Sgt Beaver. II We next discuss whether the military judge erred in admitting an extract from the Department of Justice pamphlet “Drug Abuse.” We find that, although portions of the extract were relevant, most of it was irrelevant, and therefore should not have been admitted on the merits without deletion of the irrelevant matters. On the facts of this case, however, such error was harmless. We have previously expressed our disapproval of the admission, on the merits, of the same irrelevant information. United States v. Harris, 18 M.J. 809 (A.F.C.M.R.1984). We reiterate such disapproval herein. III The accused asserts that sodomy, under the circumstances of this case, charged as a violation of Article 125, U.C. M.J., is not an offense, because it violates the accused’s rights of privacy. This Charge involves the sodomitical relationship with Mary Ellen. The government concedes that the acts occurred off base and that the relationship was private, consensual, and had no connection with the accused’s duties. The government further concedes that these factors were why they chose to charge the violation with Mary Ellen under Article 125, U.C.M.J., whereas they charged very similar violations with Donna under Article 133, U.C.M.J. We need not reach the constitutional issue presented because we find, on the facts, that the offense was not service-connected and the court-martial therefore [712] lacked jurisdiction to try it. O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969). In reaching this decision, we have considered the twelve factors enumerated by the Supreme Court in Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971), and we find: the accused was properly absent from the base; the offense was committed off base; the place was not under military control; the place was not overseas; it was in peacetime; there was no connection between the crime and the accused’s duties; the victim was not performing military duties at the time; civilian courts were available to try the case; there was no flouting of military authority; there was no threat to the military facility; there was no violation of military property, and the offense is one that is triable in civilian courts. IV We finally turn our attention to the specified issue. The accused testified in the defense’s case-in-chief. He admitted that he had an affair with Mary Ellen; that this included sexual intercourse, sodomy, and use of marihuana on one occasion. He totally denied any such activity with Donna. On cross-examination, he denied that he had ever smoked marihuana with his supervisor, Dr. B. In rebuttal, the prosecution called Dr. B, who was permitted to testify, over defense objection, that he and the accused used marihuana together on a number of occasions. The accused argues that he was improperly cross-examined because his direct testimony was that he only smoked marihuana once with Mary Ellen, not that he only used marihuana once. We note that he also testified on direct examination that he had been administered a number of urinalysis tests for drugs during his Air Force career, and that the results always had been negative. We find that the accused opened the door sufficiently so as to allow cross-examination on his use of marihuana with Dr. B. The clear implication of his direct testimony was that he did not use drugs except for the one occasion he admitted to. We do find, however, that the military judge did err when he permitted the prosecution to call Dr. B and to elicit from him extrinsic evidence of the accused’s drug usage, after the accused had denied such violations. Mil.R.Evid. 608(b).3 See also Mil.R.Evid. 405(a) and (b). V The prosecution also called Mrs. S in rebuttal. She was allowed to testify, over defense objection, that during 1978 she was a patient of the accused; that on three or four occasions she had sexual relations with him; that during these episodes they smoked marihuana, which the accused referred to as “sensimilla” and, the accused broached the subject of participating in a menage-a-trois. Mrs. S’s testimony paralled the allegations made by Donna, notably the references to sensimilla and menage-a-trois. The military judge admitted the testimony, finding that it established a common plan, design and modus operandi, and was therefore admissible under Mil.R.Evid. 404(b).4 In this, we find that the military judge erred. [713] Modus operandi is a factor in determining the identity of a perpetrator. United States v. Woods, 613 F.2d 629 (6th Cir.), cert. denied, 446 U.S. 920, 100 S.Ct. 1856, 64 L.Ed.2d 275 (1980). To be admissible to show modus operandi, the uncharged acts must be so unusual and distinctive so as to be like a signature. United States v. Benedetto, 571 F.2d 1246 (2nd Cir.1978). Identity was not an issue in this case, and even if it were, the acts related by Mrs. S did not meet the stringent test for admissibility as evidence of modus operandi. To be admissible to show a common scheme or plan, the other offenses must be more than similar; they must be almost identical, with a concurrence of common features and so interconnected as to naturally suggest that all of the acts were the result of the same plan or design. United States v. Dothard, 666 F.2d 498 (11th Cir.1982); United States v. Danzey, 594 F.2d 905 (2nd Cir.), cert. denied, 441 U.S. 951, 99 S.Ct. 2179, 60 L.Ed.2d 1056 (1979). Within the above framework, we fail to see how the testimony of Mrs. S would qualify under Mil.R.Evid. 404(b) as evidence of a common plan or scheme. The mere incantation of those words will not cause evidence to be admissible under the Rule. United States v. Watkins, 17 M.J. 783 (A.F.C.M.R.1983). We find that the evidence reveals nothing more than a collection of disparate acts of the appellant having illicit sex and drug abuse in common. United States v. Brannan, 18 M.J. 181 (C.M.A.1984); United States v. Watkins, supra. Such behavior is not so unique as to specifically identify the accused; it clearly does not establish a plan or design. Any other use of such evidence would be inconsistent with the Rules barring character evidence. Mil.R.Evid. 404(b). VI Having determined that the evidence adduced from both Dr. B and Mrs. S was improperly admitted at trial, we must decide whether such error acted to the legal prejudice of the accused. Ultimately, the issue in this case revolved around the relative credibility of the accused and the two complainants. In so far as Donna is concerned: she testified that certain events occurred; her credibility was attacked by reference to her psychiatric problems; the accused denied any involvement with her; and, there was no independent corroboration of her account of the events. Mary Ellen testified as to certain events; the accused agreed in part but disagreed as to some; and, there was no corroboration as to the disputed events. Here, the erroneously admitted evidence was used in an impermissible manner to impeach the accused in a case where credibility was the main issue in all of the specifications. On these facts, we cannot state that the cumulative effect of these errors did not influence the trier of fact, or that it had only a slight effect on the decision. Legal prejudice is therefore apparent. Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1945); United States v. Barnes, 8 M.J. 115 (C.M.A.1979); United States v. Mendoza, 18 M.J. 576 (A.F.C.M.R.1984). VII Accordingly, the findings of guilty and the sentence are set aside. Charge III and its specification which alleges sodomy under Article 125, U.C.M.J., is jurisdictionally defective and is dismissed. A rehearing may be ordered on the remaining charges and specifications. FORAY, Senior Judge, and MURDOCK, O’HAIR and CARPARELLI, Judges, concur. RAICHLE, Senior Judge, absent. Footnotes [1] United States v. Goode, 23 U.S.C.M.A. 367, 50 C.M.R. 1 (1975). [2] As a result of reports prepared by the accused regarding Donna’s husband’s psychiatric prob [711] lems, the husband was administratively separated from the Air Force. [3] Rule 608. Evidence of Character, Conduct, and Bias of Witness (b) Specific instances of conduct. Specific instances of conduct of a witness, for the purpose of attacking or supporting the credibility of the witness, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the military judge, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning character of the witness for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified____ [4] Rule 404. Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes. (b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.