United States v. Tomlinson

20 M.J. 897, 1985 CMR LEXIS 3418
CourtU.S. Army Court of Military Review
DecidedJuly 26, 1985
DocketCM 445673
StatusPublished
Cited by12 cases

This text of 20 M.J. 897 (United States v. Tomlinson) is published on Counsel Stack Legal Research, covering U.S. Army 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. Tomlinson, 20 M.J. 897, 1985 CMR LEXIS 3418 (usarmymilrev 1985).

Opinion

OPINION OF THE COURT

YAWN, Senior Judge:

Contrary to his pleas, the appellant was convicted by a general court-martial composed of officers and enlisted members of rape and violation of a lawful general regulation by possessing a switchblade knife in violation of Articles 120 and 92, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920, 892 (1982). He was sentenced to a dishonorable discharge, confinement at hard labor for 15 years, total forfeitures, and reduction to Private E-l. The convening authority reduced the period of confinement to 10 years but otherwise approved the sentence adjudged.

The appellant contends that his conviction of rape cannot stand because the military judge admitted, over defense objec[899]*899tion, expert testimony that the victim, Air Force Staff Sergeant (SSG) H, was suffering from a post-traumatic stress disorder that was consistent with “rape trauma syndrome.” We agree.

The crucial issue at trial was whether SSG H had consented to the sexual intercourse. The appellant and SSG H met at an Air Force base in Germany during the evening hours; they played video games and discussed computers. Staff Sergeant H mentioned that she owned a computer and had it in her dormitory room. At about 2330 hours, SSG H decided to return to her dormitory room and invited the appellant to come along to see her computer. She did not consider this to be a late hour for inviting someone to her room since she would ordinarily be awake at this time. Staff Sergeant H said she usually worked the “graveyard shift” from 2330 to 0730 hours but was off work on the evening at issue. Once in SSG H’s room, the appellant and SSG H played video games on the computer, ate a pizza, listened to records, and talked. At about 0545 hours the next morning, SSG H stated she told the appellant that she had to go to sleep and asked him to leave. She testified that, rather than leaving, the appellant put a switchblade knife to her throat and raped her.

After relating the details of the alleged rape, SSG H testified about her reactions following the incident: she felt nauseous, could not eat or sleep, and felt extreme changes of mood. She indicated that these reactions had not fully subsided by the time of the trial.

During the cross-examination of SSG H, the defense brought out certain inconsistencies in statements SSG H made to Army criminal investigation agents on the day of the alleged rape and again nearly one month later. On the latter occasion, SSG H was questioned by three agents; apparently, two of the agents would question her at one time. The defense also elicited from SSG H that she had been raised to believe premarital sex was bad, specifically that sex was “dirty and wrong,” and she had not told her parents about the incident because she did not know how they would handle it.

In his defense the appellant admitted that he had sexual intercourse with SSG H but claimed that it was consensual. The defense’s theory of the case was that, although SSG H had consented to intercourse, she subsequently accused the appellant of rape because of guilt feelings produced by her strict upbringing.

Over defense’s objection, the military judge allowed the government to call as a rebuttal witness Captain (CPT) James Butler, a clinical social worker who had been counseling SSG H. Captain Butler said he had previously treated about thirty people suffering from post-traumatic stress disorder and indicated that the stress disorder suffered by approximately half of these individuals was attributable to rape. Captain Butler testified that SSG H came to him with “complaints of poor sleep and poor appetite, following a sexual assault.” Captain Butler then discussed “rape trauma syndrome,” a type of post-trauma stress disorder, describing two phases of the rape trauma syndrome and the associated symptoms. He then described SSG H’s symptoms. He stated that, in addition to poor sleep and lack of appetite, SSG H exhibited feelings of anger at the rapist and at herself for setting herself up. Captain Butler further testified that SSG H exhibited fear of being alone with men in uniform, primarily Army uniforms, and that SSG H had nightmares about the incident. After describing a particular set of symptoms, CPT Butler would opine that they were consistent with rape trauma syndrome.

Upon cross-examination by the defense, CPT Butler admitted that SSG H’s symptoms were consistent with things other than rape trauma syndrome. After making this admission, CPT Butler asked the military judge if he could make an additional statement. The military judge granted CPT Butler’s request. Captain Butler stated that SSG H’s symptoms considered as a whole led to the conclusion of rape trauma. The defense then asked CPT Butler if inter[900]*900course for the first time could be a traumatic event for someone with a background similar to SSG H’s. Captain Butler stated it could be. On redirect, CPT Butler reiterated that SSG H was suffering from a post-traumatic stress disorder which was consistent with rape trauma syndrome.

After counsel completed their questioning, the military judge then asked CPT Butler whether a person, with the symptoms exhibited by SSG H, would tend to panic if interrogated by a team of males and do anything to “get out of the situation.” Captain Butler responded in the affirmative and later stated such a situation would be anxiety-producing for SSG H. Pursuant to a question submitted by a court member, the military judge asked CPT Butler if a person could fake rape trauma syndrome while seeing a professional as many times as SSG H had seen him. Captain Butler responded it would not be easy.

The appellant contends that the military judge abused his discretion by admitting CPT Butler’s testimony, over defense’s objection, since the testimony lacked probative value and posed a substantial danger of misleading the court members. Given the facts of this case, we find the substance of CPT Butler’s testimony, as it related to the issue of whether SSG H had consented to sexual intercourse with the appellant, gave rise to a danger of unfair prejudice which clearly outweighed the probative value of the testimony. Mil.R.Evid. 403. Accordingly, the military judge erred by admitting CPT Butler’s testimony. Moreover, since a fair risk exists that appellant was prejudiced by the admission of CPT Butler’s testimony, appellant’s conviction cannot stand.

In reaching the determination that CPT Butler’s testimony should be excluded, we presume that CPT Butler was qualified to testify as an expert witness. Mil.R.Evid. 702. See also United States v. Snipes, 18 M.J. 172, 178 (C.M.A.1984) (Military Rules of Evidence were intended to broaden the admissibility of expert testimony). Mindful that Mil.R.Evid. 401 establishes a low threshold of relevance,1 we also presume that CPT Butler’s testimony was relevant. The existence of psychological or physiological symptoms in a witness which correspond to a traumatic stress reaction is probative of the issue that the witness suffered a traumatic experience. See e.g., State v. Taylor, 663 S.W.2d 235, 240 (Mo.1984) (en banc); People v. Bledsoe, 36 Cal.3d 236, 203 Cal.Rptr. 450, 457, 681 P.2d 291, 298 (1984); State v. Marks, 231 Kan. 645, 647 P.2d 1292

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Bluebook (online)
20 M.J. 897, 1985 CMR LEXIS 3418, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-tomlinson-usarmymilrev-1985.