United States v. Jones

60 M.J. 964, 2005 CCA LEXIS 104, 2005 WL 742891
CourtUnited States Air Force Court of Criminal Appeals
DecidedMarch 8, 2005
DocketACM 35365
StatusPublished
Cited by8 cases

This text of 60 M.J. 964 (United States v. Jones) is published on Counsel Stack Legal Research, covering United States Air Force Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Jones, 60 M.J. 964, 2005 CCA LEXIS 104, 2005 WL 742891 (afcca 2005).

Opinion

OPINION OF THE COURT

SMITH, Judge:

The appellant was convicted, contrary to his pleas, of raping a female airman in violation of Article 120, UCMJ, 10 U.S.C. § 920. The approved sentence included a dishonorable discharge, confinement for 1 year and 3 months, forfeiture of $705.50 pay per month, and reduction to E-l. The appellant raises the following errors: (1) The evidence is factually insufficient to support the conviction; (2) The military judge failed to provide a limiting instruction to the court members after Special Agent (SA) Kelly Harrison of the Air Force Office of Special Investigations (AFOSI) was permitted to act as a “human lie detector”; and (3) The approved sentence should be modified to reflect that the forfeitures are to only run for one month and be expressed in a whole dollar amount. Finding no material prejudice to the substantial rights of the appellant, we affirm the findings. The sentence is approved as modified below.

Factual Sufficiency

A general court-martial consisting of officer and enlisted members convicted the appellant of raping Airman First Class DA in her dormitory room on 4 July 2001. The central factual issue at trial was whether the victim consented to sexual intercourse with the appellant. After drinking heavily at a cookout that afternoon and evening, her memory of subsequent events was clouded, but she had three distinct memories between the time she left the cookout at about 2045 hours and the time she woke up the next morning in her dormitory room: (1) She recalled falling out of the appellant’s car, although she did not recall where that happened; (2) She recalled seeing the appellant’s face right in front of her; and (3) At some point, she felt “him inside of me.” A number of witnesses testified for the government and the defense about the events leading up to the time the victim returned to her dormitory room with the help of the appellant and the victim’s female suitemate. Only the appellant and the victim were present in her room when the rape occurred.

At first, the victim thought she may have dreamt about the sexual intercourse, but later she believed it was too “real” to be a dream. On the following Monday, 9 July 2001, she met with her training supervisor and told him that she thought something had happened with the appellant on the night of the cookout. The supervisor pressed her for details, asking whether the intercourse that apparently occurred was consensual, to which the victim replied, “I don’t know.” After further discussion, the victim decided to report the matter to AFOSI. On 23 July 2001, two AFOSI agents hid in the victim’s bedroom during a pretext meeting between the victim and the appellant. She asked the appellant if they had intercourse on 4 July 2001, to which the appellant replied they did. When she asked if he recalled how drunk she was, he said, “Yes, you were really $ í í í up ^

Over the course of the next nine months, the appellant made a number of oral and written statements to different AFOSI agents. The appellant made a written statement on 24 July 2001, three written statements on 28 February 2002, and a final written statement on 2 April 2002. The oral statements were contemporaneous with the various written statements and, in some instances, added detail not captured in the appellant’s longhand versions. The appellant’s explanation changed over time in a couple of significant respects. First, while he consistently maintained that the victim solicited the sexual intercourse, his account of where that solicitation occurred varied. Second, although he maintained that the victim consented to intercourse, in separate interviews with AFOSI the appellant described the victim as a “7” on a drunkenness scale of “10” and recalled that, “[w]hen I put my penis in her she was asleep.”

There was no objection at trial to the admission of the appellant’s statements to [966]*966AFOSI; however, on appeal, he urges us to disregard those statements as we conduct our factual sufficiency review pursuant to Article 66(c), UCMJ, 10 U.S.C. § 866(c). In a broad attack on the reliability of the statements, the appellant challenges AFOSI policy (because the interviews were not recorded, there is no way to confirm what he actually told the agents) and the agents’ methodology (inconsistencies and omissions between the agents’ interview notes, their testimony, and the appellant’s written statements). At trial, and on appeal, the appellant argues that his written statements were the product of overzealous interrogation tactics designed to secure a confession at any cost. While conceding that the evidence is legally sufficient to sustain the conviction, the appellant invites us to sever his oral and written statements from our factual analysis because, unlike court members, we are not susceptible to being “dazzled and misled” by military investigators. Without his statements, the appellant contends, the evidence is not factually sufficient to support the conviction.

The test for factual sufficiency is whether, after weighing the evidence and making allowances for not having personally observed the witnesses, this Court is convinced of the appellant’s guflt beyond a reasonable doubt. United States v. Reed, 54 M.J. 37, 41 (C.A.A.F.2000). We are convinced of the appellant’s guilt beyond a reasonable doubt. The evidence, including the appellant’s statements, establishes his guilt. The appellant’s concern about the weight to be given his statements is understandable, because the inconsistent explanations he offered regarding the victim’s consent were pivotal and damning.1

“Human Lie Detector” Testimony

SA Harrison was an important government witness. He interrogated the appellant over the course of about five hours on 28 February 2002. No one else was involved in the questioning, which produced three of the appellant’s five written statements.2 At the time of trial, SA Harrison had been in law enforcement on active duty and as a civilian agent for over 40 years. By his recollection, he had conducted several thousand subject interviews during his career.

The issue of whether a lay or expert witness has offered “human lie detector” testimony implicates Mil. R. Evid. 608 (evidence of character, conduct, and bias of witness), 701 (opinion testimony by lay witnesses), 703 (bases of opinion testimony of experts), and 704 (opinion on ultimate issue). Our superior court has succinctly identified the essential concern with such testimony: While a party may introduce opinion evidence regarding a person’s general character for truthfulness, a witness may not offer “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. Kasper, 58 M.J. 314, 315 (C.A.A.F.2003). See also United States v. Petersen, 24 M.J. 283, 284 (C.M.A.1987) (“We are skeptical about whether any witness could be qualified to opine as to the credibility of another.”). Such an opinion invades the province of the trier of fact, whom we presume to be quite capable of resolving matters of credibility, guilt, and innocence. We first examine SA Harrison’s specific testimony as it developed at trial, then consider the effect of his answers.

1. Direct examination

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Cite This Page — Counsel Stack

Bluebook (online)
60 M.J. 964, 2005 CCA LEXIS 104, 2005 WL 742891, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jones-afcca-2005.