UNITED STATES v. DIMBERIO, 56 M.J. 20; 2001 CAAF LEXIS 1200
(September 28, 2001)
Chief Judge Crawford delivered the opinion of the Court.
Contrary to his pleas appellant was convicted by military judge alone of assault
with means likely to produce grievous bodily harm. The convening authority approved
the sentence of a bad conduct discharge, nine months' confinement, total forfeitures
and reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed
the findings and sentence. 52 M.J. 550 (1999). We granted review of the following
issue:
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY REFUSING TO ADMIT CONSTITUTIONALLY
REQUIRED DEFENSE EXPERT EVIDENCE FROM A FORENSIC PSYCHIATRIST ABOUT AN ALTERNATIVE
PERPETRATOR THAT WAS AN INDISPENSABLE ELEMENT OF APPELLANT'S DEFENSE, EVIDENCE
WHICH SHOULD MOST CERTAINLY HAVE BEEN ADMITTED UNDER EXISTING MILITARY LAW AND
WHICH WOULD HAVE MOST CERTAINLY BEEN ADMITTED IN MANY OTHER FEDERAL AND STATE
COURTS.
FACTS
Appellant's wife brought their newborn (4 week old) son, Jarod, to the emergency
room of United Hospital in the civilian community at about 7:30 a.m. on the
morning of February 3, 1997. Jarod was seen by Dr. Richard Wacksman, a critical
care physician, who testified that he observed severe trauma to the child including
bruises to the nose and extensive retinal hemorrhages (R. 219-223). Jarod's
skull contained a subdural hematoma and his brain continued to swell after admission
(R. 224, 231). Dr. Wacksman testified that there was no medical cause for the
injuries and that they were consistent with "non-accidental injury." (R. 239).
LtCol. (Dr) Gael Lonergan, a pediatric radiologist, testified that an examination
of the computerized topography scans of Jarod's brain showed a large amount
of blood in the brain, a level normally only seen in serious automobile accidents
(R. 452). Dr. Lonergan testified that the child's injuries were so serious that
the brain had atrophied. Based on her review of the record of the CAT scans
she concluded that Jarod had been violently shaken (R. 454).
Appellant's wife, Nicole, testified that the night of 2-3 February, 1997 she
had some friends in for a party. This was the first time she or her husband
had entertained friends following the birth of Jarod on 6 January 1997. This
party continued most of the night. Nicole testified that at about 10:00 p.m.
she had put Jarod to bed and fed him a bottle (R. 156). The child was sleeping
in the same bed that she and her husband used (R. 154-155). She also testified
that sometime between 12:30 a.m. and 2:30 a.m. she heard Jarod crying. She went
upstairs, changed his diaper and fed him a bottle (R. 163). Jarod did not take
his bottle well. Mrs. Dimberio then "propped" n1 the bottle and left the child
so she could return to her company (R. 164). This took no more than 15 minutes
(R. 165)
**********
n1 Nicole Dimberio explained that by "propping" the bottle, she meant that she
placed the child in the bed and left the bottle so he could nurse it without
assistance.
**********
Appellant did not testify on the merits. Therefore the chronology of his movements
is established through the testimony of other witnesses. That evidence established
that appellant went to bed sometime between 12:30 a.m. and 4:30 a.m., but clearly
after his wife had fed the child a second time (R. 111, 165 349, 392). He was
tired from being in the field and had consumed no alcohol during the evening
(R. 157, 346 359).
No one heard anything further from the child until sometime between 5:30 and
6:30 a.m. All of the witnesses testified Jarod began to cry loudly about that
time. (R. 111, 523). In fact the crying was so strong that it caused Mrs. Dimberio
to begin to lactate although she had stopped nursing the child several days
before (R. 173). n2 One of the guests testified that the crying was originally
like "a newborn's cry" but that it quickly became a hysterical cry (R. 395).
*********
n2 Appellant and his wife had a baby monitor in the room so the child's crying
was heard by their guests who were downstairs.
**********
Nicole went upstairs and found dried blood and abrasions on the child's face
(R. 115). Appellant told her that he had rolled over on the child (R. 117).
No one in attendance at the party could recall seeing the injuries prior to
that time (R. 320, 323, 361, 384). One of the guests testified that when Nicole
brought the child downstairs she observed blood on the child's nose and on the
collar of his shirt (R. 354, 358, see also R. at 400).
Mrs. Dimberio testified that she quickly brought the child downstairs. She called
the base hospital but received no response. She then called the civilian hospital
(United) and spoke with a Dr. Bock (R. 175-177). While Dr. Bock indicated there
was no cause for alarm, Mrs. Dimberio thought she should take the child to the
hospital. Appellant told his wife that she was overreacting (R. 177). Nicole
insisted and a friend, AMN Beck, drove her and the child to the hospital (R.
178). Appellant did not accompany them, saying that he needed to attend to the
family dog, who had been outside in the subzero temperature and could not be
found before the trip was made to the hospital. R. 191. But he did go to the
hospital later (R. 115, 521).
Mr. Ramberg, Chief Investigator for the Grand Forks County Sheriff's Department,
testified that he arrived at United Hospital about 10:15 a.m. At about 11:30
a.m. he interviewed Nicole Dimberio, and he then interviewed appellant (R. 102,
109-110). He did not warn appellant of his rights as appellant was not a suspect
at that time (R. 110). During this interview, appellant merely related that
he went to bed about 12:30 a.m. because he was tired and not feeling well (R.
111). He woke up about 6:00 a.m. when his baby began to cry (R. 111). Appellant
told Mr. Ramberg that he picked the child up and tried to feed it. However,
the child would not take a bottle and continued to cry. At that point Nicole
came into the room and turned on the light. This was the first time that appellant
saw any blood on the child. He told Mr. Ramberg that he may have rolled over
on the child during the night (R. 112).
Two days later, appellant was again interviewed at a different hospital in Fargo,
North Dakota, by Investigator Ramberg. Also present at this interview was OSI
Agent Gallegos. Appellant was read and waived his Article 31 UCMJ rights. At
this interview appellant said he was awakened when the baby started crying.
He remembered putting his forearm against the child to keep him (appellant)
upright while he checked the baby. According to appellant this pressure on the
baby lasted for about 5 seconds. (R. 114.) Prior to this second interview on
February 5, appellant had been told that "rolling over on the child would not
cause brain damage." (R. 115.) Although appellant continued to maintain he could
have rolled over on the baby during the night, he now admitted to putting a
forearm on the back of Jarod's head and applying pressure (R. 118). At no point
during either interview with Investigator Ramberg did appellant indicate that
he thought his wife may have been the cause of Jarod's injuries (R. 117).
At some point prior to trial, appellant's defense counsel learned that Nicole
Dimberio had a history of treatment for various mental health issues. Defense
counsel requested, and the military judge granted, the appointment of an expert
to assist the defense in reviewing Mrs. Dimberio's medical records. This expert,
Dr. Sharbo, concluded that Mrs. Dimberio suffered from an unspecified personality
disorder with narcissistic, histrionic, and borderline traits. (App. Ex. XXXV
at 9.) He also found that Nicole suffered from stress and on occasion would
act without thinking. Importantly, he did not find, nor did the defense contend,
that Nicole was likely to act out violently or had a history of such actions.
At trial on October 21, 1997, defense counsel made a proffer that experts in
the field of psychiatry would testify that an individual who has "anger control
and stress control issues" might shake a baby. R. 48. "Shaken baby syndrome
... is due to a momentary loss of control due to stress [on] the care giver."
Id. "The stress related factors can be anything, either involving the child
itself or external stress related factors that are going on in the care giver's
life at that particular time." Id. The defense requested that
"Dr. Wacksman and other experts in the field ... testify about that shaken baby
syndrome and their experience of the cause as it is the result of stress and
typically is not a premeditated event. I think that is relevant to go to the
state of mind of the accused and the issue on the specific intent to grievously
injure his son." Id.
After some questioning, the military judge ascertained that the linkage between
the above proffered testimony and the accused was that defense counsel intended
to introduce character evidence that appellant was a peaceful individual and
calm in stressful situations. R. 49. See also R. 461, 471, 478-79. According
to the defense theory, testimony that shaken baby syndrome was generally not
a premeditated act, coupled with appellant's character evidence, would negate
the specific intent requirement of the charged aggravated assault. After additional
discussion, defense counsel revealed that another purpose behind its desire
for expert testimony was to admit the psychological history of Nicole Dimberio
under Mil.R.Evid. 404(b). R. 52. In support of this position, counsel introduced
the legislative history behind Fed.R.Evid. 413-15, and an article on the subject.
App. XXXII. At a conference more than a day later, defense counsel offered Appellate
Exhibit XXXV which was styled as a supplemental funding request for forensic
psychiatrist David A. Sharbo and a request to appoint Dr. Sharbo as an expert
witness. A part of this appellate exhibit was a two-page memorandum written
by Dr. Sharbo as a result of his examination of Nicole Dimberio. He found:
"Diagnoses:
"Axis II: Personality Disorder, NOS with narcissistic, histrionic and borderline
traits
"Axis I: Alcohol Dependence, In Sustained Partial Remission, still drinking
alcohol
"Axis I: Eating Disorder NOS with binge, purge & restriction, In Remission
"1. Nicole Dimberio fully meets DSM IV diagnostic criteria for the above three
mental disorders.
"2. Narcissistic traits address pervasive patterns of grandiosity, need for
admiration and lack of empathy.
"3. Histrionic traits address patterns of excessive emotionality and attention
seeking.
"4. Borderline traits refer to patterns of instability in interpersonal relationships,
self-image, affects and impulsivity.
"5. She has a history of instability in nurturing relationships throughout her
formative years. This is a contributing factor to difficulty maintaining healthy
relationships in adult life.
"6. Shifting back and forth between homes to meet her own desires while in school
fostered subsequent impulsivity and difficulty in relationships.
"7. Her previous history of poor impulse control and self destructive behavior
includes eating disorder, alcoholism and suicide attempt by poisoning.
"8. We have only her word for the amount she drank that night (2 beers.) Denial/minimization
is characteristic of individuals with addictive disorders in general and alcoholism
in particular.
"9. This is an individual that would not be expected to handle stressful situations
well."
App. Ex. XXXV.
This proffer and request by defense counsel for the admission of Dr. Sharbo's
testimony in accordance with his two-page diagnosis, was actively opposed by
the trial counsel. The military judge said he was not adverse to allowing expert
testimony, but:
"There is no evidence, zero evidence, that she (meaning Nicole Dimberio) has
acted out violently toward any baby. There is no evidence that she has acted
out violently against her own baby. There is zero evidence that when she gets
in a stressful situation that she acts out violently and it would be necessary
in the court's opinion for you to have that connection and have that opinion
in order to solicit this information.... I, quite frankly, see Nicole Dimberio,
based on simply what I have heard in a courtroom, as certainly someone who meets
a number of these characteristics; that she doesn't handle stressful situations
well is pretty evident from listening to the testimony in terms of her reaction.
But, what you are missing, in the court's opinion, is the connection between
stressful situations and violence or the impulsivity and violence."
R. 500.
The military judge also found that the mere fact that Nicole may have yelled
at someone under a stressful situation should be excluded under Mil.R.Evid.
403. Id. The judge also stated he would not allow an extrapolation of Nicole's
different behavioral characteristics into testimony before the panel. R. 501.
Defense counsel responded that because shaken baby syndrome was not normally
a premeditated act, the defense did not have to "show the link between stress
and acting out and violence." R. 501. According to defense counsel, he merely
had to show a link between the state of mind of Mrs. Dimberio through her impulsive
personality traits with the expert testimony that the shaken baby syndrome negates
a premeditated act. R. 502. In response the judge noted that if there had been
evidence of violent acting out with children in the past, he would have entertained
admitting the evidence pursuant to Mil.R.Evid. 402(b). R. 502-03. There was
no evidence of such in this case.
DISCUSSION
It is undeniable that a defendant has a constitutional right to present a defense.
In Washington v. Texas, 388 U.S. 14, 18 L. Ed. 2d 1019, 87 S. Ct. 1920 (1967),
the Court held that compulsory due process includes both the right to compel
the attendance of defense witnesses and the right to introduce their testimony
into evidence. In United States v. Robinson, 39 M.J. 88, 89 (CMA 1994), this
Court stated that the Equal Protection Clause, Due Process Clause, and the Manual
for Courts-Martial each provide that servicemembers are entitled to expert assistance
when necessary for an adequate defense. United States v. Garries, 22 M.J. 288,
291 (CMA 1986).
However, the Constitution does not confer upon an accused the right to present
any and all types of evidence at trial, but only that evidence which is legally
and logically relevant. See Chambers v. Mississippi, 410 U.S. 284, 35 L. Ed.
2d 297, 93 S. Ct. 1038 (1973). Appellant seeks the admission of Dr. Sharbo's
testimony under Mil.R.Evid. 401-405 and 702-703.
Rules 401-404 set forth what is legally and logically relevant. Rule 401 defines
logically relevant evidence as "evidence ... having any tendency and reason
to prove or disprove any disputed fact that is of consequence to the determination
of the action." However, even though the evidence is logically relevant, it
may be excluded as not legally relevant if "its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the members, or by considerations of undue delay...." Rule 403.
Rules 404 and 405 set forth rules concerning the introduction of character evidence
including what constitutes proper character evidence and the mode the proof.
What constitutes "character evidence"? "Character is a generalized description
of a person's disposition, or of the disposition in respect to a general trait,
such as, honesty, temperance or peacefulness." McCormick on Evidence § 195 at
686 (5th ed. 1999). Rule 404(a) provides in pertinent part "evidence of a person's
character or a trait of a person's character is not admissible for the purpose
of proving that he acted in conformity therewith on a particular occasion, except
as otherwise limited."
The Advisory Committee notes: "circumstantial use of character is rejected but
with important exceptions: (1) an accused may introduce pertinent evidence of
good character (often misleadingly described as ‘putting his character in issue'),
in which event the prosecution may rebut with evidence of bad character; (2)
an accused may introduce pertinent evidence of the character of the victim,
as in support of a claim of self-defense to a charge of homicide or consent
in a case of rape, and the prosecution may introduce similar evidence in rebuttal
of the character evidence, or, in a homicide case, to rebut a claim that deceased
was the first aggressor, however proved; and (3) the character of a witness
may be gone into as bearing on his credibility. McCormick § § 155-161. This
pattern is incorporated in the rule. While its basis lies more in history and
experience than in logic, an underlying justification can fairly be found in
terms of the relative presence and absence of prejudice in the various situations.
Falknor, Extrinsic Policies Affecting Admissibility, 10 Rutgers L. Rev. 574,
584 (1956); McCormick § 157. In any event, the criminal rule is so deeply imbedded
in our jurisprudence as to assume almost constitutional proportions and to override
doubts of the basic relevancy of the evidence".
The Advisory Committee notes, Rule 404.
Thus, this rule provides that circumstantial use of character evidence is impermissible
except for the three exceptions noted above. n3
********
n3 Mil.R.Evid. 404(a)(2) is "taken from the Federal Rule with minor changes."
Mil.R.Evid. 404(a)(2), Drafters' Analysis, Manual, supra, at 22-34. Mil.R.Evid.
404(a)(3) is the same as Fed.R.Evid. 404(a)(3). Id.
*********
Mil.R.Evid. 405(a) provides that, whenever "evidence of character or a trait
of character of a person is admissible, proof may be made ... by testimony in
the form of an opinion." While the commentators are divided whether the opinion
testimony like that proffered by the defense implicates a character trait n4.
We will assume character evidence is broader than defined by McCormick and includes
psychiatric diagnosis or personality disorders. Such evidence would not fit
within the exceptions to Mil.R.Evid. 404(a). However, that does not answer the
question because if the evidence is otherwise legally and logically relevant
under Rules 401 through 403 the defendant has a constitutional right to introduce
the evidence. However, in order for the evidence to be admissible, appellant
has the burden of by making an adequate proffer or presentation of evidence.
Mil.R.Evid. 103 n5.
**********
n4 See e.g., Weinstein, Federal Evidence, § 405.04[2][c] at 405-28 through 405-29;
C. Mueller & L. Kirkpatrick, Federal Evidence, § 101 at 551-52 (2d ed. 1994).
n5 Taken from Fed.R.Evid. 103 "with a number of changes." Mil.R.Evid. 103, Drafters'
Analysis, Manual for Courts-Martial, United States, 2000, at A22-2.
**********
The "substance of the evidence" that was part of the proffer has to be made
known or be "apparent from the context." Mil.R.Evid. 103(a)(2). This can be
done through a stipulation, through direct examination, or through a proffer.
In any event, any of those methods must encompass the foundational requirements.
See Edward J. Imwinkelried, Evidentiary Foundations (2d ed. 1989).
If part of a proffer is admissible and part inadmissible, the offering party
must single out the admissible part, otherwise the evidence shall be held inadmissible.
Collins v. Seaboard Coast Line, R.R., 675 F.2d 1185, 1194 (11th Cir. 1982);
Dente v. Riddell, Inc., 664 F.2d 1, 2 n.1 (1st Cir. 1981). Stated differently,
if a party makes a proffer of evidence that is partly admissible and partly
inadmissible without limiting the proffer, the party cannot complain on appeal
if the court, as it did here, excludes the entire offer. Paddack, et al. v.
Christensen, et al., 745 F.2d 1254, 1260 (1984); United States v. West, 670
F.2d 675, 683 (7th Cir. 1982); United States v. Stout, 667 F.2d 1347, 1353-54
(11th Cir. 1982). Rules such as Mil.R.Evid 403 and 404(a) that exclude evidence
from criminal trials do not abridge an accused's constitutional right to present
a defense so long as they are not arbitrary or disproportionate to the purposes
they are designed to serve. Evidence may be excluded even though of probative
value if "its disallowance tends to prevent confusion of issues, unfair surprise
and undue prejudice." Michelson v. United States, 335 U.S. 469, 476, 93 L. Ed.
168, 69 S. Ct. 213 (1948). See also Jaffee v. Redmond, 518 U.S. 1, 9, 135 L.
Ed. 2d 337, 116 S. Ct. 1923 (1996)] ("sufficiently important interest" may outweigh
right to present probative evidence); United States v. Clemons, 16 M.J. 44,
50 (CMA 1983)(Everett, J., concurring)("In some situations there are strong
public policies that favor excluding certain types of relevant evidence.").
n6 To rise to the level of constitutional error, a ruling must have infringed
upon a weighty constitutional interest of the accused. See United States v.
Scheffer, 523 U.S. 303, 308, 140 L. Ed. 2d 413, 118 S. Ct. 1261 (1998).
************
n6 Cf. Elkins v. United States, 364 U.S. 206, 234, 4 L. Ed. 2d 1669, 80 S. Ct.
1437 (1960)(Frankfurter, J., dissenting) ("Limitations are properly placed upon
the operation of this general principle [society is entitled to every man's
evidence] only to the very limited extent that permitting a refusal to testify
or excluding relevant evidence has a public good transcending the normal predominant
principle of utilizing all rational means for ascertaining truth.").
************
Character may be proved by either reputation evidence, n7 opinion evidence n8
or evidence of specific instances of conduct. n9 Is the evidence admissible
as character evidence under Rule 404(a)? If not, is it constitutionally required
to be admitted? Or should it be admissible under the 700 rules?
*************
n7 Mil.R.Evid. 405(a). Same as the Federal Rule. Id. See also Michelson v. United
States, 335 U.S. 469, 93 L. Ed. 168, 69 S. Ct. 213 (1948).
n8 Id.
n9 Mil.R.Evid. 405(b). Taken without change from Fed.R.Evid. 405(b). Mil.R.Evid.
405(b), Drafters' Analysis, Manual, supra, at 22-35.
********
The defense did not offer an appropriate foundation for the introduction of
reputation or opinion type evidence. United States v. Breeding, 44 M.J. 345,
350-51 (1996). See also United States v. Toro, 37 M.J. 313, 317 (CMA 1993);
United States v. Tomchek, 4 M.J. 66 (CMA 1977). Both lay and opinion evidence
is admissible on personality traits. The expert in this case had not known Mrs.
Dimberio long enough to have formed a traditional opinion as to her character
or to have heard about her reputation in the community but could express an
expert opinion as to the patient's mental condition. Id. Nor did the defense
offer specific instances of conduct by Mrs. Dimberio. Thus, under Mil.R.Evid.
404-405, the evidence set forth in App. Ex. XXXV was inadmissible as the court
below held, 52 M.J. at 558-59.
Nor was there a sufficient proffer under Rules 401-407 and the 700 series. We
normally think of these traits as traits that are relevant to the offense charged,
that is honesty in a larceny case or law-abidingness in any case. However, the
defense in this case seeks to introduce evidence, App. Ex. XXXV, as a mental
disorder under the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV)(4th
ed. 1994). This evidence may very well be relevant if the defense establishes
that individuals with certain diagnoses confronted with certain situations may
respond in a similar consistent way. While circumstantial proof of conduct may
very well be relevant, it has more complex inferential problems that require
a sufficient basis in a first instance.
As to Mil.R.Evid. 702-703, Mil.R.Evid. 103, requires an adequate proffer as
to expert testimony that includes the following:
1. Qualifications of the expert
2. The subject matter of the expert testimony
3. Basis for expert testimony
4. Legal relevance of the evidence
5. Reliability of the evidence, and
6. Probative value of the testimony.
See United States v. Houser, 36 M.J. 392, 397. See also United States v. Griffin,
50 M.J. 278, 283 (1999), United States v. Combs, 39 M.J. 288, 290 n.1, CMA 1994;
United States v. Banks, 36 M.J. 150, 161 (CMA 1992). n10 Assuming the qualifications
of the expert, what is missing here is an adequate proffer that this evidence
of Mrs. Dimberio's mental health problems had a nexus or link to behavioral
traits of acting out and violence.
**********
n10 The Supreme Court of the United States set out a similar analysis in Daubert
v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct.
2786 (1993).
*******
It is difficult to exempt biophysical facts from mental disorders. However,
in any event the proponent must satisfy the Daubert v. Merrell Dow Pharmaceuticals,
509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993), reliability standard.
An unreliable test is not sufficiently legally relevant. The question is whether
traits exist and whether they are manifested in certain situations. Like other
scientific theories, the expert would have to show that these character traits
do react similarly in certain situations satisfying the Daubert rules. Even
an individual with certain characteristics may have internal self-monitoring
which may or may not cause them to act similarly in various situations. Some
legal scholars who have engaged in exhaustive research have even questioned
the use of character evidence. Lawson, Credibility in Character: A Different
Look at an Indeterminable Problem, 50 Notre Dame Law. 758 (1975). Appellant
did not proffer evidence that a person with his wife's personality trait would
act out in a violent manner.
The defense did not cite any case or rule that would have allowed the introduction
of expert testimony concerning Mrs. Dimberio's condition and her likelihood
of being the perpetrator. If, as the defense contends, that it is so apparent,
then no evidence would be needed on the topic. However, this Court has stressed
over the years the six Houser steps that are a predicate to introducing expert
testimony. The defense did not attempt to meet these steps.
If the defense had satisfied Rules 401-405 and 702-703, the evidence would still
be inadmissible under 403's n11 balancing test. n12 In the absence of character
evidence that Mrs. Dimberio's mental health was tied to violence, including
prior violent acts, the introduction of a mental health diagnosis that she did
not handle stress well was both speculative and potentially confusing to the
members. Nor was the proffer "precise in describing limitations" as to the potential
expert testimony. Cf. United States v. St. Jean, 45 M.J. 435, 444 (1996): "We
note that there is an enormous difference between asserting that persons who
bear certain characteristics are likely to have committed crime [as appellant
seeks to argue), and asserting that persons who manifest particular characteristics
are likely to have a certain mental state or condition (as was at issue in St.
Jean]." We hold that the military judge did not abuse his discretion by
excluding the evidence under Rule 403.
**********
n11 Mil.R.Evid.
n12 Same as Fed.R.Evid. 403. Mil.R.Evid. 403, Drafters' Analysis, Manual, supra,
at A22-34.
**********
Notwithstanding the exclusion of Dr. Sharbo's testimony, appellant did present
his defense to the court members through other means. Through the cross-examination
of Mrs. Dimberio, appellant showed that she had been alone with Jerod for three
days while appellant was out in the field, just prior to the 2nd of February
(R. 182). Further, through Dr. Garman's testimony, appellant was able to show
that Nicole Dimberio was stressed and nervous on the morning of February 3rd
and "had the smell of alcohol about her." (R. 485-486). The only area which
appellant's defense counsel was not allowed to explore was Nicole Dimberio's
mental health diagnosis and its link to the baby.
In view of the foregoing, the military judge did not abuse his discretion as
the "evidentiary gatekeeper" by excluding Mrs. Nicole Dimberio's mental health
diagnosis. See General Electric Company v. Joiner, 522 U.S. 136, 139 L. Ed.
2d 508, 118 S. Ct. 512 (1997); United States v. Schlamer, 52 M.J. 80 (1999);
United States v. Miller, 46 M.J. 63 (1997).
Accordingly, the decision of the United States Air Force Court of Criminal Appeals
is affirmed.
SULLIVAN, Judge (concurring in the result):
OVERVIEW
Appellant contends that an erroneous evidentiary ruling by the military judge
violated his constitutional right to present his defense at this court-martial.
The majority holds that defense-proffered evidence was properly excluded by
the military judge under various military rules of evidence and that no infringement
of appellant's constitutional right to present his defense occurred. The dissent
asserts that both evidentiary and constitutional error occurred in this case.
I agree with the dissent that the military judge's relevance ruling was erroneous,
but I conclude that it did not materially prejudice appellant or amount to constitutional
error.
The Court-Martial
Appellant was found guilty of assault with a means likely to produce grievous
bodily harm on his 4-week-old son, Jarod; the prosecution's case, however, was
based only on circumstantial evidence. There were no eyewitnesses to the crime
and only appellant and his wife had significant access to the baby that night.
At issue on this appeal is the correctness of the judge's decision excluding
certain defense evidence which appellant argues circumstantially showed an alternate
perpetrator of the charged offense, i.e., his wife, Nicole Dimberio. Appellant
had offered expert testimony from a psychiatrist, Doctor Sharbo, that appellant's
wife had a personality disorder including traits of impulsivity and the inability
to handle stress well. He asserted that this expert testimony was relevant in
light of Doctor Wacksman's expert testimony, previously admitted, that shaken-baby
injuries such as baby Jarod's are usually caused by impulsive acts of a caregiver
under stress. (R. 276-77)
More particularly, defense counsel at trial offered expert testimony from Doctor
Sharbo as to Mrs. Dimberio's character disorders of impulsivity and inability
to handle stress. n1 He did so for three reasons: First, to show her character
and draw an inference therefrom and from other evidence in this case that she
did the charged act (R. 498) n2; second, to show that appellant did not act
intentionally if he did the charged act n3 (R. 501); third, to show Mrs. Dimberio's
state of mind, a circumstantial fact identifying her as the actual perpetrator
of the charged offense (R. 502). The military judge ruled that the evidence
was irrelevant because there was no showing of nexus between Mrs. Dimberio's
character disorders and the acts of violence charged in this case. (R. 501,
503)
********
n1 Mil. R. Evid. 405, Manual for Courts-Martial, United States, 1984, provides
for proof of character by means of opinion testimony without distinguishing
between lay and expert testimony. See 2 Weinstein, Federal Evidence § 405.04[2][a].
Moreover, federal courts and most state courts consider expert-opinion testimony
on personality traits as character evidence within the meaning of this rule.
See 2 Weinstein, Federal Evidence § 405.04[2][c]; 3 Jones on Evidence-Civil
and Criminal § 16:24 (7th ed. 1998). See also United States v. Nunn, 940 F.2d
1148, 1149 (8th Cir. 1991); United States v. Roberts, 887 F.2d 534, 536 (5th
Cir. 1989); State v. Shuck, 953 S.W.2d 662 (Tenn. 1997); People v. Stoll, 49
Cal. 3d 1136, 783 P.2d 698, 265 Cal. Rptr. 111 (Cal. 1989). But see State v.
Ambrosia, 67 Ohio App. 3d 552, 587 N.E.2d 892, 899 (Ohio App. 6 Dist. 1990);
State v. Conlogue, 474 A.2d 167, 172 (Me. 1984); see generally State v. Hulbert,
481 N.W.2d 329, 333-34 (Iowa 1992); Commonwealth v. Trowbridge, 36 Mass. App.
Ct. 734, 636 N.E.2d 291, 295-96 (Mass. App. Ct. 1994).
n2 With certain carefully-limited exceptions (for the accused, a victim, or
a witness), evidence of a person's character is not admissible to show a person
acted in conformity with that character. See Mil. R. Evid. 404(a). It is black-letter
law that a criminal accused may not introduce character evidence to show a third
party committed the charged offense. See 1A Wigmore, Evidence § 68 (Tillers
rev. 1983); 22 Wright and Graham, Federal Practice and Procedure: Evidence §
5236 at 385-86 (1978); but see State v. Anderson, 379 N.W.2d 70, 79 (Minn. 1985).
Accordingly, in my view, the defense-proffered evidence here was per se inadmissible
for the purpose of showing Mrs. Dimberio acted in accordance with this character
on the night in question. See generally S. Childress and M. Davis, 1 Federal
Standards of Review § 4.03 at 4-29 (3d ed. 1999).
n3 The challenged evidence showed Mrs. Dimberio's character disorders and probable
state of mind, not appellant's. Accordingly, it was clearly irrelevant to show
that appellant did not act with the requisite criminal intent for conviction
of aggravated assault.
******************
Erroneous Relevancy Ruling
In my view, the military judge clearly erred when he concluded that the defense-proffered
expert testimony was not relevant to a material issue at appellant's court-martial.
See Mil. R. Evid. 401 and 402. The third reason for which the defense offered
expert testimony in this case was that appellant's wife had certain character
disorders (instability and inability to handle stress) and therefore she was
probably stressed out on the night that baby Jarod was assaulted. It further
offered this evidence of Mrs. Dimberio's mental state on the night in question
to establish a fact identifying her, not appellant, as the assailant of baby
Jarod. See generally 3 Jones on Evidence-Civil and Criminal § 17:39 (7th ed.
1998) (distinguishing between identity evidence and evidence offered to show
conduct). This was a viable evidentiary theory and purpose in appellant's case.
See 2 Wigmore, Evidence § § 411-13 (Chadbourn rev. 1979); see also United States
v. St. Jean, 45 M.J. 435, 444 (1996); United States v. Combs, 39 M.J. 288, 291
(CMA 1994).
Moreover, there was evidence linking Mrs. Dimberio's character disorders to
that particular mental state, and linking that mental state to a violent assault.
Doctor Wacksman, a government witness, testified on direct examination that
the injuries inflicted on Jarod were consistent with an intentional assault
or shaken baby syndrome. He further agreed on cross-examination by the defense
that shaken baby syndrome was an unpremeditated event related to stress and
resulted from "an acute abrupt momentary loss of control by the caregiver."
(R. 277) Clearly, this expert testimony established the necessary scientific
nexus between the proffered defense evidence and the charged offense, and it
went beyond mere speculation. Cf. United States v. Han, 230 F.3d 560, 563 (2d
Cir. 2000); see State v. Miller, 709 P.2d 350, 353 (Utah 1985); see generally
State v. Oliviera, 534 A.2d 867 (RI 1987). In my view, this evidence was relevant
to show the identity of an alternate perpetrator of the charged offense (one
of the classic defenses to any crime). Cf. United States v. Powers, 59 F.3d
1460, 1471-73 (4th Cir. 1995) (no "valid scientific connection" established
between a particular criminal offense and evidence that appellant does not fit
profile of one who could commit that offense). n4
***********
n4 The majority asserts that the proffered defense evidence was inadmissible
under Mil. R. Evid. 403 and 702. The military judge, however, ruled that the
proffered defense evidence was not relevant; he did not do a balancing test
or rule that the evidence was relevant but unfairly prejudicial under Mil. R.
Evid. 403. Moreover, the majority's conclusion under "Daubert" and "Houser,"
___ MJ at (18-19), ignores the scientific-nexus testimony of Doctor Wacksman
and, in my view, conflicts with this Court's decision in United States v. St.
Jean, 45 M.J. 435, 444 (1996).
**********
Prejudice
Nevertheless, other evidence showing Mrs. Dimberio's stressed-out mental state
on the night in question was admitted in this case. It could also serve as a
basis to identify her as the perpetrator of the charged offense and permit appellant
to present his alternate-perpetrator defense to the members. (R. 600, 604-05)
In these circumstances, I conclude that the military judge's erroneous evidentiary
ruling did not materially prejudice appellant's rights or amount to constitutional
error. See generally Fortini v. Murphy, 257 F.3d 39, 47-48 (1st Cir. 2001) (erroneous
exclusion of defense evidence under circumstances did "not rise to the level
of a Chambers [n5] violation"); Romano v. Gibson, 239 F.3d 1156, 1166-68 (10th
Cir. 2001) (no constitutional error where only incremental evidence of alternate
perpetrator improperly excluded); People of the Territory of Guam v. Ignacio,
10 F.3d 608, 615 (9th Cir. 1993) (excluded defense evidence not substantial).
**************
n5 Chambers v. Mississippi, 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973).
***********
On this point, I again emphasize that defense counsel argued, inter alia, that
the proffered defense-expert evidence was relevant to show Mrs. Dimberio's stressed
state of mind on the night of the alleged assault of her baby. He then argued
that her stressed state of mind, among other facts, identified her, not appellant,
as the assailant of baby Jarod. However, Doctor Garman, a witness for the defense,
also testified that Mrs. Dimberio told him the morning after the assault that
she was stressed the night before. (R. 485, 491, 494). Direct evidence of this
state of mind in the form of an admission by Mrs. Dimberio was certainly stronger
than the circumstantial showing of this same state of mind, based on her character
disorders, which was prohibited by the judge. Moreover, defense counsel was
free to argue and did argue that this was "a crime .... of stress" and Mrs.
Dimberio was a stressed out person on the night in question. (R. 604-05) In
reaching the above conclusions I have relied heavily on my reading of the record
of trial and my understanding of the positions of the parties at this court-martial.
In my view, the prosecution relied most heavily on appellant's pretrial admissions
to possibly injuring the child by accident. It was the defense, in an attempt
to focus suspicion on Mrs. Dimberio as the actual assailant, who first played
the psychological-character card during pre-trial motions and in the opening
argument of the trial. (R. 26-30, 48-50, 51-53, 96-98, 100). In sum, appellant
was entitled to a fair trial, not a perfect trial, and that is exactly what
he received in this case.
EFFRON, Judge (dissenting):
Four weeks after his birth, Jarod Dimberio sustained severe trauma, including
injuries to his nose, eyes, and brain. The medical personnel who treated Jarod
and examined his records testified that Jarod's injuries were consistent with
"non-accidental trauma" and that Jarod had been shaken violently. The evidence
introduced at trial indicated that only two people had access to Jarod and the
opportunity to inflict such injuries during the pertinent time period -- appellant
and his wife, Nicole. The evidence called upon the members to decide which parent
was the perpetrator.
The prosecution, during its case-in-chief, focused significant attention on
the state of mind of the perpetrator of a "shaken baby" crime. The military
judge excluded critical, relevant defense evidence which squarely joined issue
with the prosecution's evidence concerning the state of mind of the perpetrator.
Under the circumstances of this case, that ruling denied appellant his constitutional
right to present a defense. See Chambers v. Mississippi, 410 U.S. 284, 294,
35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973); accord Davis v. Alaska, 415 U.S. 308,
317, 39 L. Ed. 2d 347, 94 S. Ct. 1105 (1974), and Washington v. Texas, 388 U.S.
14, 19, 18 L. Ed. 2d 1019, 87 S. Ct. 1920 (1967). I respectfully dissent.
I. BACKGROUND
A. Consideration of the Expert's Testimony at Trial There was no eyewitness
testimony or other direct evidence as to who caused Jarod's injuries. The Government,
relying on circumstantial evidence, sought to explain to the members why appellant,
as a parent, would have inflicted such violent injuries on his newborn child.
The Government introduced explicit medical expert testimony of Dr. Wacksman
that "the constellation of symptoms" seen in Jarod was "typical shaken baby
syndrome." Dr. Lonergan, another prosecution expert witness, similarly testified
on direct examination that Jarod "was a violently shaken baby." On cross-examination,
Dr. Wacksman testified that shaken baby injuries typically result when the response
of a care giver to stressors results in an "acute, abrupt, momentary loss of
control." The experts' testimony was accompanied by prosecution evidence that
on the night of Jarod's injuries, appellant had been tired and under work-related
stress. The prosecution asked the factfinders to infer the following from this
evidence: Jarod suffered injuries that typically are inflicted by care givers
who react acutely and abruptly with momentary loss of control under stress;
appellant was a care giver who was tired and under stress at the time in question;
therefore, appellant cracked under stress and inflicted Jarod's injuries. n1
***************
n1 Trial counsel's rebuttal argument during closing relied on Dr. Wacksman's
testimony, contending that this "is most likely a shaken baby rather than an
impact trauma ...." In arguing that appellant had the mental state to inflict
such injuries, trial counsel argued that appellant had been "tired" that night
and had "become upset" with Jarod. He contended that the evidence showed a "deliberate
shaking of the baby out of frustration, out of anger, out of being upset."
*************
In response, the defense sought to rebut the inferences suggested by the Government
and to develop alternative inferences. In support of the inference that he was
not the person who had lost his composure and shaken Jarod, appellant introduced
evidence that he was calm under pressure and responded well to stress, even
when tired and upon being awakened from sleep.
To complement the evidence that he was not the likely perpetrator, appellant
attempted to demonstrate that the only other possible perpetrator -- Nicole
-- was the more likely culprit. Defense counsel sought to introduce the expert
testimony of Dr. Sharbo, a forensic psychiatrist whom the military judge earlier
had appointed to assist the defense in reviewing Nicole's medical records. According
to defense counsel's proffer, Dr. Sharbo would state his expert opinion that
Nicole had certain mental disorders and traits that historically had led to
impulsivity and instability and that, under these circumstances, she "would
not be expected to handle stressful situations well." He would base the testimony
on a personal interview with Nicole, review of her medical and psychological
records and the report of the investigation under Article 32, UCMJ, 10 USC §
832, and consultation (with Nicole's permission) with her previous treating
psychiatrist.
Defense counsel proffered to the military judge that the evidence would reveal
that Nicole had "suffered from major depression for over 6 years, as noted in
the records, and that this major depression was manifested in many ways, primarily,
as far as we are concerned, in her ability to handle stressful situations and
anger problems." This dovetailed, in the defense view, with: (1) "evidence of
a stressful situation for [Nicole] that evening"; (2) evidence that "she was
drinking that night" and that "when she drinks alcohol she has a much greater
inability to control her anger and stress"; and (3) testimony from the prosecution's
expert witnesses that "in a shaken baby syndrome it normally is related to the
ability of the care giver to handle a stressful situation, either as exhibited
by the baby or by external factors that that care giver is experiencing at that
particular time that might not be related to the baby in particular."
The military judge questioned defense counsel concerning the "nexus" between
evidence that Nicole had difficulty in handling stress and the implication that
the defense sought to make that she would respond to stress with violence, particularly
violence toward her baby. Defense counsel answered that the proffered evidence
"is the type of evidence that we think is going to link her psyche, if you will,
her personality disorder, her major depressive disorder, her long history of
anger and stress control related problems to that night and her ability, because
of that, to handle any particular stressful situation that occurred." The military
judge did not accept this connection, commenting that, "unless you can provide
the link to her being violent that night, her acting out that night, then there
is not a nexus there and you have a bridge that you have got to connect up some
way." Defense counsel responded:
Your honor, if people had seen Mrs. Dimberio acting out that night toward her
son with all due respect, I don't think we would be here in this courtroom today.
The fact of the matter is abuse of the child in these situations is normally
not seen by a third party. ... In these particular types of cases the doctors
will tell you that it all deals with stress and the ability to deal with stress.
This is what causes the care giver to do this to the child, so, if we have a
care giver, the mother, who had complete and equal access to that child that
evening, who has a psychological disorder, an axis disorder that causes them,
such as major depression, which we understand does not abate over time, that
that is relevant to determining whether or not we are talking about the identity
of the perpetrator, it is more likely that that care giver is the one that could
not handle the stressful situation that caused the injuries to Jarod.
Defense counsel reinforced that view in later argument to the military judge:
If he is going to come in here and tell the court that she has a major depressive
disorder and that she has a personality disorder that exhibits itself in an
inability or a decreasability to handle stressful situations then I think that
that opinion is admissible to the court members, not, your honor, anything specifically
about past instances or past stressful situations or past alcohol use except
as it applies to the doctor forming his opinion that in the opinion format without
going into specifics he then provides to the jury. We do know that at least
she told one doctor that night that she was stressed and we do know that she
was drinking alcohol. I think that is the link there in regards to her personality
disorders or major depression, if any, that she certainly has had for 6 years
as far as major depression. I understand that it has not disappeared at will
and the issue of identity and motive in this case.
Shortly after this argument, the military judge deferred ruling on the matter
until later in the trial.
The Government subsequently "moved under its existing motion in limine to exclude
this testimony [of Dr. Sharbo] on the grounds that it doesn't meet the relevance
criteria under [Mil. R. Evid.] 401 or 403." The prosecution argued that the
proposed defense testimony was not relevant because there was no evidence that
Nicole had faced a stressful situation that evening or that she would respond
to stress with violence toward children.
The military judge ruled that the testimony of Dr. Sharbo was inadmissible.
Although he did not cite a specific basis for his opinion, he indicated that
the evidence was not relevant because the defense did not demonstrate that Nicole
had reacted violently in response to stress in the past. See Mil. R. Evid. 401
and 402.
B. Consideration of the Expert's Testimony on Appeal
In the Court of Criminal Appeals, appellant renewed his argument that Dr. Sharbo's
testimony was relevant and admissible. 52 M.J. 550 (1999). The court concluded
that "while the military judge's reliance on the fact that there was no evidence
that Mrs. Dimberio had ever assaulted an infant may have been overly narrow
in scope, this does not detract from the essential correctness of his ruling."
Id. at 557.
According to the Court of Criminal Appeals, "the critical deficiency of appellant's
proffer was its reliance on a predisposition or profile, which in turn depended
upon a trait of Mrs. Dimberio's character. This is specifically prohibited by
Mil. R. Evid. 404(a)...." Id. at 558. The court stated that it did "not read
the rules of evidence or case law as permitting a trial to be decided by traits
associated with a personality disorder," and it concluded that "the military
judge was well within his discretion in reaching [the] conclusion" that "Mrs.
Dimberio's personality disorder was not relevant and, therefore, not admissible."
Id. at 559.
In the present appeal, the granted issue requires our Court to determine whether
the expert testimony was relevant and admissible. The majority would affirm
the exclusion of Dr. Sharbo's testimony on several bases. First, the majority
asserts that appellant "did not offer an appropriate foundation for the introduction
of ... opinion-type evidence" as to a character trait of Nicole. According to
the majority, "The expert in this case had not known Mrs. Dimberio long enough
to have formed a traditional opinion as to her character. ..." and "the defense
[did not] offer specific instances of conduct by Mrs. Dimberio." ___ MJ at (17).
Second, the majority apparently concludes that the defense proffer did not establish
the relevance of the evidence, noting that "what is missing here is an adequate
proffer that this evidence of Mrs. Dimberio's mental health problems had a nexus
or link to behavioral traits of acting out and violence." Id. at (18). Third,
the majority holds that even if relevant, "the evidence would still be inadmissible
under [Mil. R. Evid.] 403's balancing test" because the proffered evidence was
"both speculative and potentially confusing to the members," absent a showing
that Nicole's problems were tied to violence. Id. at (20). Finally, the majority
indicates that any error was harmless because "appellant did present his defense
to the court members through other means," including evidence that Nicole was
under stress at the time in question and that she apparently had been drinking
alcohol. Id. at (21).
II. ADMISSIBILITY OF THE EXPERT'S TESTIMONY
A. Foundation for Expert Opinion
Mil. R. Evid. 405(a) provides that, whenever "evidence of character or a trait
of character of a person is admissible, proof may be made ... by testimony in
the form of an opinion." n2 This rule includes testimony of the opinion of a
psychiatrist that is based on a professionally satisfactory foundation. See
Advisory Committee's Note to Fed. R. Evid. 405, 56 F.R.D. 222 (acceptable form
of opinion testimony includes "the opinion of the psychiatrist based upon examination
and testing"); United States v. St. Jean, 45 M.J. 435, 442-44 (1996) (in murder
trial where victim's state of mind was in issue, testimony of a psychiatrist,
who had examined copious records and documents relating to the victim and the
crime, was admissible to offer his opinion that he detected no indication that
the victim was either depressed or "highly impulsive," which he already had
testified were characteristics of persons with a high risk of committing suicide);
State v. Christensen, 129 Ariz. 32, 628 P.2d 580, 582 (Ariz. 1981) (in murder
trial where the defendant's premeditation was in issue, testimony of a psychiatrist,
who had interviewed the defendant and had reviewed tests administered to him,
was admissible to offer opinion that the defendant "had difficulty dealing with
stress and in stressful situations his actions were more reflexive than reflective").
See also 3 Jones on Evidence: Civil and Criminal § 16:24 at 152-54 (7th ed.
1998); Stephen A. Saltzburg, Michael M. Martin, & Daniel J. Capra, 1 Federal
Rules of Evidence Manual (hereafter Saltzburg) 402-03 (7th ed. 1998), discussing
United States v. Staggs, 553 F.2d 1073 (7th Cir. 1977) ("In dictum, the Court
seemed to approve the use of an expert opinion as to the character of a criminal
defendant, which Rules 404(a) and 405 do not prohibit but which generally was
not permissible at common law."). See also Saltzburg, supra at 402, discussing
United States v. Roberts, 887 F.2d 534 (5th Cir. 1989) ("The Court held [*47]
it was error, but harmless, to exclude testimony of a psychologist that the
personality of a defendant charged with cocaine offenses was consistent with
his claimed activity as a self-appointed vigilante.").
*********
n2 The commentators are divided as to whether opinion testimony like that proffered
by the defense in this case implicates traits of character within the meaning
of Mil. R. Evid. 404. Compare, e.g., 2 Weinstein's Federal Evidence § 405.04[2][c]
at 405-28 to 405-29; 3 Jones on Evidence: Civil and Criminal § 16:24 at 152-54
(7th ed. 1998), with IA Wigmore, Evidence § 83 at 1599 (Tillers rev. 1983);
Stephen A. Saltzburg, Michael M. Martin, and Daniel J. Capra, 1 Federal Rules
of Evidence Manual 529, Advisory Committee's Note on original Fed. R. Evid.
404(a) (7th ed. 1998); and Christopher B. Mueller and Laird C. Kirkpatrick,
1 Federal Evidence § 101 at 522 (2d ed. 1994). See also Wigmore, supra § 51
at 1145-46.
***********
In the present case, Dr. Sharbo personally interviewed Nicole, discussed the
matter with her previous treating psychiatrist, and reviewed Nicole's medical
and psychological records as well as the Article 32 investigation report. These
actions established a legally sufficient foundation for Dr. Sharbo to offer
the expert psychiatric opinion testimony proffered by the defense. See Mil.
R. Evid. 703, Bases of Opinion Testimony by Experts; Stephen A. Saltzburg, Lee
D. Schinasi, and David A. Schlueter, Military Rules of Evidence Manual 865 (4th
ed. 1997) ("Under Rule 703, an expert may base her opinion upon facts or data
that she has perceived, learned from study or experiment, or been told about,
either by watching the proceeding in court, or from other sources outside court.");
id. at 841 ("Pursuant to Rule 703, counsel may rely on expert witnesses to provide
opinion testimony which is not based on first hand knowledge or observation.");
State v. Christensen, supra (in murder trial, psychiatric evidence as to defendant's
proclivity toward reflexive actions under stress was admissible on question
whether appellant killed his wife with premeditation or impulsively). Cf. St.
Jean, supra 45 M.J. at 444 ("Vicarious fact-gathering is expressly permissible
and normal in the medical, psychiatric, and psychological fields.").
B. Relevance of the Expert's Testimony
The prosecution's theory of the case and the evidence introduced by the prosecution
placed the psychological condition of the perpetrator squarely at the center
of this trial. Only one of two people could have shaken Jarod and caused these
injuries -- appellant or Nicole. There was no evidence that either appellant
or Nicole previously had responded to stress with violence in general or violence
against a child in particular. On this occasion, however, one of them did so.
The heart of appellant's defense sought to focus the members on the question
of whether it was appellant or Nicole who had responded to stress with violence
against their child.
In this context, the prosecution emphasized factors relevant to appellant's
mental condition -- that he had been tired and under stress on the night in
question. The prosecution -- consistent with their expert's opinion -- did not
attempt to show that he had reacted to stress with violence in the past or that
the stress preceding the incident was necessarily related to the baby. The proffered
expert testimony as to the impact of Nicole's psychological condition on her
ability to cope with stress was at least as compelling as the prosecution's
evidence concerning appellant.
"Anything that can help rationally decide disputed issues and be helpful to
the finder of fact is relevant .... If evidence is of any value at all, it qualifies
under the Rule." Military Rules of Evidence Manual, supra at 474. Where the
prosecution's own evidence indicated that the perpetrator probably was someone
who cracked under stress without necessarily having done so in the past -- and
without any showing that the stress was caused by the baby -- the military judge
erred in concluding that it was "irrelevant" that Nicole's mental condition
was such that she could be expected to have difficulty with stress. Under these
circumstances, the excluded testimony of Dr. Sharbo would have had some "tendency
to make the existence of any fact that is of consequence to the determination
of the action more probable ... than it would be without the evidence." Mil.
R. Evid. 401.
C. Mil. R. Evid. 403
Mil. R. Evid. 403 precludes admission of relevant evidence under six circumstances.
Even though "relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the members, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence."
The military judge commented at one point that without some showing that Nicole's
mental condition would lead her to respond to stress with violence, the evidence
in question "should be excluded under any type of [Mil. R. Evid] 403 balancing
test." The military judge, however, did not indicate what was so objectionable
about the evidence that it substantially outweighed the probative value. In
the absence of any analysis by the military judge, the majority attempts to
perform the balancing test under Mil. R. Evid. 403, asserting that the proffered
evidence would have been "both speculative and potentially confusing to the
members." ___ MJ at (20). The majority offers no analysis, however, as to why
this evidence would have been so flawed.
Moreover, whether it would have been "potentially confusing" is not the test
under Mil. R. Evid. 403; rather, the test is whether such difficulties as danger
[*52] of unfair prejudice or confusion of the issues "substantially outweigh[]"
the "probative value" of the evidence. Mil. R. Evid. 403 "is constructed to
favor the admission of evidence, as a result exclusion of otherwise relevant
testimony should be rarely invoked." Military Rules of Evidence Manual, supra
at 490; see United States v. Roberts, 88 F.3d 872 (10th Cir. 1996); United States
v. Mende, 43 F.3d 1298 (9th Cir. 1995); United States v. Terzado-Madruga, 897
F.2d 1099 (11th Cir. 1990). "The use of the word 'substantially' in the Rule
suggests that in close cases the drafters intended that evidence should be admitted
rather than excluded." Military Rules of Evidence Manual, supra at 491. See
United States v. Mende, supra; United States v. Krenzelok, 874 F.2d 480 (7th
Cir. 1989).
Furthermore, the "prejudice" that the rule seeks to avoid is the danger of "unfair
prejudice" -- that is, the danger that the evidence will be used "for something
other than its logical, probative force." Military Rules of Evidence Manual,
supra at 492. n3 The nature of the proffered evidence -- given the context of
this trial and the prosecution's evidence -- would have sharpened the issues
and would have provided a complete picture of the defense theory for the members'
consideration without being unfairly prejudicial to the Government, confusing
the issues, or misleading the members. Under these circumstances, Mil. R. Evid.
403 does not provide a basis for exclusion of the expert's testimony.
***********
n3 "Practice often demonstrates that counsel's arguments for excluding testimony
largely consist of undefined, conclusory references to the evidence's prejudicial
effects, rather than pointed demonstrations of the evidence's unfairly prejudicial
impact on the court members' ability to properly evaluate the other admissible
evidence and reach an appropriate, non-emotional, result thereon. Unless counsel
can articulate why the evidence will be unfairly used, it can be admitted."
Id. at 492-93 (last emphasis added).
***************
D. Mil. R. Evid. 404
Mil. R. Evid. 404(a) generally excludes "evidence of a person's character or
a trait of a person's character ... for the purpose of proving that the person
acted in conformity therewith on a particular occasion ...." The rule is based
on the premise that character evidence offers "little probative value" in such
circumstances, while creating a significant risk of diverting the members' deliberations
through the interjection of irrelevant issues. See Military Rules of Evidence
Manual, supra at 524.
Subsections (1) - (3) of Mil. R. Evid. 404(a) recognize three exceptions to
the general rule of inadmissibility:
" (1) evidence of a pertinent character trait of an accused offered by the accused,
or by the prosecution to rebut it; (2) evidence of a pertinent character trait
of the victim offered by the accused, or by the prosecution to rebut it; and
(3) evidence of the character of a witness offered to impeach the witness under
Mil. R. Evid. 607 - 609."
One explanation for these historical exceptions is that when an accused initiates
use of a character trait "to exonerate himself, the problem of prejudice is
altogether different. Now, knowledge of the accused's character may prejudice
the jury in his favor, but the magnitude of the prejudice or its social cost
is thought to be less." 1 McCormick on Evidence § 191 at 673 (5th ed. 1999)
(emphasis in original). Cf. 1 Federal Rules of Evidence Manual, supra at 374
(the rationale for the exception permitting an accused to introduce evidence
of his own character "is that the defendant deserves the benefit of all reasonable
doubts and that good character may produce a reasonable doubt."). Similarly,
in commenting on the exception relating to the defense introduction of evidence
of the victim's character, the McCormick text states:
"That the character of the victim is being proved renders inapposite the usual
concern over the untoward impact of evidence of the defendant's poor character
on the jury's assessment of the case against the defendant. There is, however,
a risk of a different form of prejudice. Learning of the victim's bad character
could lead the jury to think that the victim merely "got what he deserved" and
to acquit for that reason. Nevertheless, at least in murder and perhaps in battery
cases as well, when the identity of the first aggressor is really in doubt,
the probative value of the evidence ordinarily justifies taking this risk."
McCormick, supra at 681 (emphasis in original).
Mil. R. Evid. 404(a) does not express an exception permitting the defense to
introduce evidence of a relevant character trait of a third-party alternate
perpetrator. Nonetheless, the considerations applicable to both the general
rule of exclusion and the specific exceptions would seem to apply with equal
force to an exception in this area. Tiller's 1983 revised edition of IA Wigmore,
Evidence § 68 at 1444 contains the following observation:
"If one takes the view that character evidence is relevant and that the main
reason for its usual exclusion is the danger of prejudice to the parties, it
is not insensible to take the view that evidence of the character of third persons
should be admissible when there is no substantial danger that the trier of fact
will draw inferences about the character of the parties as a result of his views
of the character of the nonparties."
(Citations omitted.) The authors quote the following passage from Professor
Wigmore's third edition of the Treatise that pointedly reflects this view:
"Where the character offered is that of a third person, not a party to the cause,
the reasons of policy for exclusion seem to disappear or become inconsiderable;
hence, if there is any relevancy in the fact of character, i.e., if some act
is involved upon the probability of which a moral trait can throw light, the
character may well be received."
(Citations omitted.)
In this case, the disputed evidence of Dr. Sharbo's testimony was critically
important to the defense and went directly to the heart of the case, as shaped
by the prosecution, and the question before the members: Which of two parents
had violently injured Jarod? In that context, the relevance of the evidence
was great and the risk of unfair prejudice and confusion was minimal, consistent
with the rationale underlying Mil. R. Evid. 404. Under those circumstances,
the rule cannot impede appellant's constitutional right to a fair trial and
a full presentation of his defense theory that Nicole committed the crime. See
Chambers v. Mississippi, 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973);
Cikora v. Dugger, 840 F.2d 893 (11th Cir. 1988). Cf. DePetris v. Kuykendall,
239 F.3d 1057, 1062 (9th Cir. 2001) (trial court's erroneous exclusion of crucial
defense evidence as irrelevant "went to the heart of the defense" and, so, denied
defendant's "Fifth Amendment due process right to a fair trial" and her "Sixth
Amendment right to present a defense," citing Chambers v. Mississippi, supra).
III. PREJUDICE
The majority takes comfort in the fact that "appellant did present his defense
to the court members through other means," ___ MJ at (21), noting that the members
heard evidence that Nicole was under stress and "'had the smell of alcohol about
her.'" The majority concludes: "The only area which appellant's defense counsel
was not allowed to explore was Nicole Dimberio's mental health diagnosis and
its link to the baby." Id. at 21-22.
Without evidence of Nicole's mental health diagnosis and the expert's testimony
concerning the likelihood that she would have difficulty handling stress, particularly
when under the influence of alcohol, the defense was deprived of the testimony
necessary to explain the significance of the evidence that she was under stress
and had been drinking. It is not unusual for persons to be under stress, to
drink alcohol, or both. What was missing in this case was the opportunity for
the defense to present evidence that gave meaning to these factors -- that this
particular person had a mental condition that could cause her to respond in
a certain way when under stress and particularly when drinking alcohol. Under
these circumstances, the exclusion of the proffered expert testimony of Dr.
Sharbo materially prejudiced the substantial rights of appellant. See Art. 59(a),
UCMJ, 10 USC § 859(a).