United States v. Flesher

73 M.J. 303, 2014 WL 3289063, 2014 CAAF LEXIS 702
CourtCourt of Appeals for the Armed Forces
DecidedJuly 8, 2014
Docket13-0602/AR
StatusPublished
Cited by82 cases

This text of 73 M.J. 303 (United States v. Flesher) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Flesher, 73 M.J. 303, 2014 WL 3289063, 2014 CAAF LEXIS 702 (Ark. 2014).

Opinions

Judge OHLSON

delivered the opinion of the Court.

We granted review in this case to determine whether the military judge abused his discretion when he allowed a putative expert witness to testify at trial. Under the unusual set of circumstances present in this case, we conclude that the military judge did abuse his discretion by admitting this testimony, and that this error likely had a substantial influence on the panel members’ findings.

In the summer of 2010, Appellant was a specialist in the U.S. Army and lived in on-base housing at Dugway Proving Ground in Utah. A family with two teenage children— a sixteen-year-old girl (S.A.) and her younger brother — lived across the street. The Government alleged at trial that on June 29, 2010, Appellant invited these two teenagers to his home and plied them with alcohol. They became intoxicated and eventually returned to their own home and went to bed. After midnight, Appellant went to the teenagers’ house and crawled in the bedroom window of the sleeping S.A. without her knowledge or permission. She awoke to find Appellant removing her pants. Appellant then pressed his body against S.A., covered her mouth with his own, and held down her wrists as he proceeded to engage in noncon-sensual sexual intercourse with her. S.A. later stated that although she struggled with Appellant she did not fight back more fiercely or call out for help because she was drunk, confused, scared, and embarrassed. Appellant ultimately left the home without anyone other than S.A. knowing of his presence. S.A. telephoned a friend about thirty minutes after the incident, however, and the next morning this friend and the friend’s mother notified local law enforcement.

In contrast to the Government’s version of events, Appellant testified that S.A. had invited him to come to her bedroom on the night in question and that the sex was consensual. In seeking to corroborate the consensual nature of the encounter, defense counsel established through the combined testimony of several witnesses that S.A.’s brother was sleeping in an adjoining room— with the door between these two rooms ajar — and yet S.A. did not alert her brother to Appellant’s presence. During closing arguments, defense counsel also pointed out that even after Appellant had left the premises, S.A. did not immediately notify her parents or the police about the alleged sexual assault. Appellant also testified that S.A. had a motive for falsely accusing him of sexual assault, noting that he had told her of his disapproval of her drag use, and she may have been afraid that he would report this illegal activity to her parents.

At his court-martial, Appellant was charged with aggravated sexual assault, burglary, and two specifications of furnishing alcohol to a minor, in violation of Articles 120, 129, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920, 929, 934 (2006). Appellant pleaded guilty to the latter two specifications involving the alcohol, but not guilty to the other two charges. A general court-martial with enlisted members eventually found Appellant not guilty of the burglary charge but guilty of the sexual assault charge. The panel sentenced Appellant to confinement for seven years, forfeiture of all pay and allowances, reduction to the grade of E-l, and a dishonorable discharge. The convening authority approved the sentence as adjudged. Upon review, the United States Army Court of Criminal Appeals (CCA) affirmed the findings of guilty and the sentence. United States v. Flesher, No. ARMY 20110449, slip op. at 1 (A.Ct.Crim. App. May 30, 2013).

In the course of the trial, the military judge permitted the Government to call a [307]*307Sexual Assault Response Coordinator (SARC) as an expert witness. The Government represented to the military judge that the purpose for calling the SARC was to elicit testimony that, based on her work with thousands of sexual assault victims, it is common for sexual assault victims not to fight back against their attacker, not to scream or call for help, and not to first report the sexual assault to the police rather than to a friend or family member. However, the military judge did not handle in a textbook manner the issues of whether the SARC was truly an expert, the subject and scope of her testimony, whether her testimony in this case was relevant and reliable, and whether its probative value outweighed its potential prejudicial effect. Further, when the SARC’s testimony blatantly exceeded the scope of that which had been approved by the military judge, the trial counsel took no action to rein her in and the military judge provided no curative instruction to the panel.

It is the testimony of this putative expert that is the crux of the matter before us. Specifically, on Appellant’s petition we granted review of the following issue:

Whether the military judge abused his discretion when he admitted the testimony of a putative expert witness in violation of the Military Rules of Evidence and case law on bolstering, expert qualifications, relevance, and the appropriate content and scope of expert testimony.

As explained in greater detail below, we find that the military judge did abuse his discretion in handling this matter, and that this error was prejudicial to Appellant. Accordingly, we affirm in part and reverse in part.

BACKGROUND

On May 19, 2011, two weeks prior to the beginning of Appellant’s court-martial, the Government provided defense counsel with a witness list. This list included Ms. Sarah Falk, a former SARC at Fort Carson, Colorado. However, the Government did not identify Ms. Falk other than to note her current place of employment. Defense counsel contacted Ms. Falk and interviewed her. Defense counsel then contacted trial counsel to ask if he intended to call Ms. Falk as an expert witness. Based on these conversations, defense counsel moved for a continuance, noting the recent notification of the Government’s intent to call an expert witness and arguing that the defense needed more time to prepare for Ms. Falk’s expected testimony. The Government opposed the defense’s motion via e-mail to the military judge, stating that Ms. Falk would not interview the victim or testify about the “psychology of trauma,” but instead would testify about the “common behaviors and responses” of sexual assault victims. The defense filed a reply brief the next day. In this reply, the defense specifically asked for a hearing pursuant to Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), because Ms. Falk’s testimony appeared to “lack any scientific methodology.” 1

Two days later the military judge sent an e-mail to counsel on both sides. In the email the military judge addressed the defense’s request for a continuance:

Re: the Defense motion for a continuance — As I understand the issue, Ms. Falk is going to testify she has seen lots of alleged sexual assault victims. Some act this way, some act that way, and the way some alleged victims act might not be consistent with how one would think they would act. Is this correct, Gov’t? If so, Defense, I would guess that Ms. Falk will agree on cross that there is no usual way alleged victims react. Each alleged victim is different. I would also think you could get any [Sexual Assault Nurse Examiner] [308]

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Cite This Page — Counsel Stack

Bluebook (online)
73 M.J. 303, 2014 WL 3289063, 2014 CAAF LEXIS 702, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-flesher-armfor-2014.