United States v. Diaz

39 M.J. 1114, 1994 WL 275861
CourtU S Air Force Court of Military Review
DecidedJune 8, 1994
DocketACM 30342
StatusPublished
Cited by9 cases

This text of 39 M.J. 1114 (United States v. Diaz) is published on Counsel Stack Legal Research, covering U S Air Force Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Diaz, 39 M.J. 1114, 1994 WL 275861 (usafctmilrev 1994).

Opinion

OPINION OF THE COURT

PEARSON, Judge:

Court members convicted Sergeant Diaz of raping Airman First Class JLH, threatening and harassing Mrs CAY, and using cocaine. Articles 120,134, and 112a, UCMJ, 10 U.S.C. §§ 920, 934, 912a (1988). They acquitted him of raping Ms MCG and adultery with JLH which was charged as an alternative to the rape. The members sentenced Sergeant Diaz to a dishonorable discharge, 10 years confinement, forfeiture of all pay and allowances, and reduction to E-l. The convening authority reduced the forfeiture to $350 per month for 120 months as an act of clemency but otherwise approved the adjudged sentence.

We reverse Sergeant Diaz’ rape conviction because the military judge erred in (1) restricting defense cross-examination of the victim under Military Rule of Evidence 412 and (2) allowing trial counsel to argue that the alleged rapes of MCG and JLH were “remarkably consistent” and rebutted any mistake of fact as to consent. We also reverse his conviction for harassing CAY because the military judge committed plain error by failing to define the term “harass” when instructing the members on the elements of that offense. We affirm the remaining threat and drug convictions.

CROSS-EXAMINATION

Facts

Airman JLH arrived at Norton Air Force Base on April 24, 1991. On May 13, 1991, she met appellant in the unit orderly room. He invited her to attend a unit softball game that evening which she did. After the game, they went for a drive in appellant’s Porsche sports car. Appellant drove to a somewhat deserted residential side street where he and JLH had sexual intercourse in the car’s front seat. Two days later, she reported that appellant raped her. JLH testified appellant did not strike or threaten her to have sex. She said she resisted him by pushing him away, repeatedly telling him, “No,” and crying when he entered her. Appellant contended the activity was consensual.

On cross-examination, defense counsel asked JLH if she ever lied. Other than “[ljittle lies” as a child, she said no and specifically denied lying about important matters. Counsel asked if she recently lied to her roommate that appellant was the father of her child who was born 10 months after the alleged rape. The prosecutor objected, arguing Military Rule of Evidence 412 prohibited the question because it called for past sexual behavior evidence since appellant was not in fact the father and JLH was unmarried. Defense counsel asserted the question went to JLH’s credibility, the central issue concerning the rape, and was not framed to attack her sexual character, reputation, or morals. Defense counsel stated he would focus only on the lie and would not [1116]*1116even ask about marital status in order to avoid any Rule 412 problem.

The military judge held an evidentiary hearing on the issue. JLH testified she mistakenly believed appellant was the child’s father but discovered otherwise several months before the birth. She specifically denied talking to the roommate at all about “the issue” and denied telling anyone appellant was the father after she learned otherwise. The roommate testified unflinchingly that the lie occurred only weeks before trial. While the military judge found the evidence “somewhat relevant ... somewhat material,” he concluded it was not “constitutionally required” and was thus prohibited by Rule 412 as it concerned the sexual behavior of a nonconsensual sex offense victim. Consequently, the military judge sustained the objection to the question.

Confrontation and Rule

The Confrontation Clause of the Sixth Amendment guarantees ah accused the right to cross-examine the witnesses against him in order to test the truth of their testimony. Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074,13 L.Ed.2d 934 (1965). While the right is not absolute, it “must not be lightly denied.” United States v. Whitaker, 34 M.J. 822, 829 (A.F.C.M.R.1992). Although Rule 412 generally precludes admission of evidence about a rape victim’s past sexual behavior, the Rule’s prohibition must yield to “constitutionally required” cross-examination, that is cross-examination which would produce evidence relevant, material, and favorable to the defense. United States v. Williams, 37 M.J. 352 (C.M.A.1993). We conclude the military judge abused his discretion in restricting defense counsel’s cross-examination as it was “constitutionally required.” See id. at 361 (abuse of discretion standard of review).

The question of whether JLH lied about appellant being the father of her child was certainly relevant. An out-of-court he is a specific act of misconduct which is probative of a witness’ truthfulness and always relevant to the issue of credibility. United States v. Stavely, 33 M.J. 92 (C.M.A.1991) (applying Mil.R.Evid. 608(b), 609). Moreover, this he directly involved the appellant.

The question was material, that is, it was of consequence in determining guilt. A rape victim’s credibility is a crucial issue when the victim is the only witness who can estabhsh force and lack of consent, particularly when there is no physical evidence of force and the victim makes a- delayed complaint. Cf. Williams, 37 M.J. at 360-61.

The evidence sought was favorable to the defense. While JLH may have continued to deny telling a he to her roommate if the judge allowed the question, she may have also admitted the statement. Even if she continued to deny making the statement, defense counsel may have proved it by extrinsic evidence. See Mil.R.Evid. 608(c); Stavely, 33 M.J. at 94. We find the issues of lack of consent and force in this case are close calls and evidence that JLH had lied about appellant to her roommate “could very well shift the outcome in appellant’s favor.” Williams, 37 M.J. at 360 (citations omitted). See Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102 L. Ed.2d 513 (1988). Consequently, the restriction on cross-examination was prejudicial to appellant.

Finally, we note the evidence defense counsel sought was not the kind of rape victim character assassination Rule 412 was generally designed to prevent. See MCM, App. 22, Mil.R.Evid. 412 at A22-34 (1984). Defense counsel’s question only brought Rule 412 into play in the most tangential way as the question inferred unmarried JLH must have had sex out of wedlock with someone else. However, the focus of the question was not on sexual behavior, and it did not require JLH to disclose the true father or subject her to an embarrassing and degrading cross-examination. See id. The probative value of the question clearly outweighed any undue prejudice to the victim. See Williams, 37 M. J. at 360 n. 7. Also, when restricting defense cross-examination or excluding defense evidence under Rule 412, the military judge should make detailed findings of the reasons for the restriction or exclusion. United States v. Hollimon, 16 M.J. 164 (C.M.A.1983).

[1117]*1117ARGUING ONE SPECIFICATION PROVES ANOTHER

On August 2, 1987, MCG, an 18-year-old American, went to a party in England while visiting family living there.

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Bluebook (online)
39 M.J. 1114, 1994 WL 275861, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-diaz-usafctmilrev-1994.