IN THE CASE OF
UNITED STATES, Appellee
William A. BYRD, Sergeant
Crim. App. No. 9901101
GIERKE, J., delivered the opinion of the Court, in which EFFRON, BAKER, and ERDMANN, JJ., joined. CRAWFORD, C.J., filed an opinion concurring in the result.
For Appellant: Captain Gregory T. Rinckey (argued); Colonel Robert D. Teetsel, Lieutenant Colonel Mark Tellitocci (on brief); Major Allyson G. Lambert and Captain Mary E. Card.
For Appellee: Captain Edward E. Wiggers (argued); Colonel Lauren B. Leeker, Lieutenant Colonel Margaret B. Baines, and Captain Janine P. Felsman (on brief).
Military Judge: Gary J. Holland
opinion is subject to editorial correction before final publication.
opinion is subject to editorial correction before final publication.
Judge GIERKE delivered the opinion of the Court.
Military Rule of Evidence 701 [hereinafter M.R.E.] limits opinion testimony by lay witnesses. This case concerns whether M.R.E. 701 allows a lay witness to interpret what Appellant meant when he wrote certain passages in letters to the witness. We agree with the well-established federal civilian rule that this kind of lay opinion testimony is, with certain limited exceptions, impermissible. Although the military judge improperly allowed a lay witness to offer her opinion about Appellant’s meaning in various passages he wrote to her, we find the error to be harmless.
Appellant was tried by a general court-martial consisting of officer and enlisted members. Contrary to Appellant’s pleas, the members found him guilty of one specification of committing forcible sodomy with his daughter A.B. on divers occasions in violation of Article 125 of the Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. § 925 (2000). The members found him not guilty of seven other specifications alleging various acts of sexual misconduct with the same daughter. The members sentenced Appellant to a dishonorable discharge, confinement for ten months, reduction to the lowest enlisted grade, and forfeiture of all pay and allowances. The convening authority initially approved the sentence as adjudged.
Army Court of Criminal Appeals set
aside the original convening authority’s action in an unpublished
opinion. The convening authority then
the sentence as adjudged, but retroactively waived forfeitures for a
Appellant was charged with sexual offenses involving his daughter A.B. when she was ten and eleven years old. While Appellant was confined by civilian authorities before trial, he
wrote two letters to his wife, as well as another letter to their daughter A.B. The defense moved in limine to exclude those letters and Mrs. Byrd’s testimony about them.
The defense argued that any testimony about the letters’ content would be speculative and that the testimony’s prejudicial effect would outweigh its probative value. At a hearing on this motion, Mrs. Byrd testified that she recognized the handwriting on the letters as Appellant’s. She also testified that she had known Appellant for about sixteen years and had been married to him for eight years. She then provided her interpretation of various phrases appearing in the letters. The trial counsel argued that the letters and Mrs. Byrd’s opinion testimony were admissible to show that Appellant was threatening his wife to impede his family’s cooperation with the prosecution. The trial counsel also noted that the Government intended to present expert testimony from a psychologist concerning how “statements can be used as threats designed to have a spouse not go forward with charges.”
In ruling on the motion to exclude Mrs. Byrd’s testimony about the letters, the military judge first noted that the letters themselves were admissible as “admissions by the accused.” The military judge then made a contingent ruling that Mrs. Byrd’s testimony would become relevant if the Government presented expert testimony concerning accused individuals’ use of psychological or financial pressure to convince their victims to recant.1 The military judge specifically concluded that “Mrs. Byrd’s opinion as to what the accused was trying to say to her” would be helpful to the members.
Mrs. Byrd ultimately testified about the letters during the Government’s case in chief. The trial counsel directed Mrs. Byrd to read various passages from the letters, which had not yet been published to the members. After the members heard each passage, the trial counsel elicited additional information from Mrs. Byrd, including her opinion about what Appellant meant when he wrote some of the passages. The defense now challenges the admissibility of her responses concerning eight specific passages.
701 establishes a two-part test for
admissibility of lay
opinion: (1) the opinion must be
rationally based on the witness’s
perception; and (2) the opinion must be helpful to the determination of
in issue. Like other evidentiary
rulings, a military judge’s application of M.R.E. 701 is reviewed for
of discretion. See
Application of the lay witness opinion rule, M.R.E. 701, to
interpretations of the meaning of another person’s communications is an
of first impression in military law.
Accordingly, we will seek guidance from judicial interpretations
Federal Rule of Evidence 701, the model for its military counterpart.2 See
Manual for Courts-Martial,
general rule in federal civilian courts is that “[l]ay witnesses are
not permitted to testify about their subjective interpretations or
as to what has been said.” United
States v. Cox, 633 F.2d 871, 875 (9th Cir. 1980); see also
Second Circuit has emphasized the
foundational requirements that the proponent must satisfy before a
interpretation of another person’s meaning becomes admissible. “In order to allow lay opinion testimony
interpreting a facially coherent conversation . . ., the government
to establish a foundation that called into question the apparent
the conversation so that it no longer seemed clear, coherent, or
agree with the general prohibition of
lay opinion testimony interpreting facially coherent communications. “Where terms are capable of being understood
by the layman, and where the jury is capable of interpreting the
slang involved, lay witness opinion testimony is improper, as is the
witness’s conclusion or interpretation of the conversation.” State v. Webb, 792
P.2d 1097, 1100 (
For a lay opinion interpreting another person’s meaning to be admissible, the proponent must establish that the witness has some special basis for determining the speaker’s true meaning. See generally David A. Schlueter, et al., Military Evidentiary Foundations 272-73 (2d ed. 2000). Once that foundation is laid, the witness “may clarify conversations that are abbreviated, composed of unfinished sentences and punctuated with ambiguous references to events that were clear only to the conversation participants,” United States v. Sneed, 34 F.3d 1570, 1581 (10th Cir. 1994), or which include code or code-like language. Dicker, 853 F.2d at 1108. When such permissible testimony is presented, the “accuracy of those perceptions is a question for the [members].” Sneed, 34 F.3d at 1581.
These general rules can be applied to sort Mrs. Byrd’s testimony concerning her husband’s letters into three categories:
(1) Mrs. Byrd’s opinions concerning Appellant’s meaning in several passages that were facially coherent were inadmissible.
(2) Mrs. Byrd’s opinions concerning Appellant’s meaning when he wrote certain ambiguous statements were also inadmissible because they were unaccompanied by any particularized demonstration that she had a basis for determining Appellant’s true meaning. It was not enough to show that Mrs. Byrd was familiar with Appellant’s handwriting and had corresponded with him in the past. As the proponent of this testimony, the Government was required to demonstrate that Mrs. Byrd had some basis for knowing Appellant’s intended meaning for the particular phrases that she purported to interpret.
(3) Mrs. Byrd’s testimony providing background information concerning references in the letters to other events was admissible.
We will now address Mrs. Byrd’s testimony concerning each of the eight passages.
first challenge is to Mrs.
Byrd’s testimony interpreting a portion of Appellant’s letter of
During her testimony on the merits, Mrs. Byrd explained, “I had always been afraid that he would get mad and take the money out of the bank and then I wouldn’t have any money to pay the bills and take care of the kids.” She then provided this interpretation of the passage:
I took it that if I didn’t – that if I didn’t tell – when he found out which way I was going to tell – say it did happen or say it didn’t happen, he was going to wait and then based upon that was what he was going to do, based upon whichever way that I went. And that because of how I felt about him, that I would keep on doing what I had been doing, trying to protect him.
The trial counsel then asked, “When you say it did happen or didn’t happen, what are you talking about?” Mrs. Byrd answered, “I’m talking about the sexual abuse. If we kept saying that it did not happen and if I kept not cooperating.” The trial counsel followed up by asking, “Then if you kept on doing that, what would he do?” Mrs. Byrd answered, “If I kept on not cooperating with the authorities, then things would continue on as the same that he would give me financial support.”
Appellant’s meaning in this passage is unclear. Mrs. Byrd interpreted it as a promise of continued financial support in return for not cooperating with the prosecution. That interpretation is not clear from the communication itself. Accordingly, Mrs. Byrd’s interpretation of Appellant’s meaning was admissible only if supported by an evidentiary foundation to establish that Mrs. Byrd had some means, such as prior usage, to determine Appellant’s intent when he wrote these words. However, during the motions hearing, the Government did not lay any foundation to demonstrate that words or phrases used in this passage had some established meaning in the couple’s communications. Thus, when the military judge ruled on the motion, he erred when he held that this testimony was admissible. Nor did the Government lay the missing foundation later when Mrs. Byrd testified during the Government’s case-in-chief and in rebuttal. Mrs. Byrd’s testimony concerning the first passage therefore fell into the second category discussed above and was inadmissible.
Also in his June 24 letter, Appellant wrote, “Even if I did go away for the rest of my life, I’ll be unable to help financially in prison, but I’ll help mentally.” The trial counsel asked Mrs. Byrd, “What did you think he meant when he said, ‘go away for the rest of my life?’” Mrs. Byrd answered, “That he thought he would go to jail. He would go to prison.” The trial counsel then asked, “Why would he go to jail?” She responded, “If he was found guilty of the charges of abuse.” The meaning of this passage is plain on its face. Thus, testimony about this passage fell into the first category discussed above and was inadmissible. Mrs. Byrd’s interpretation was particularly problematic because it subtly changed the passage’s meaning. While Appellant’s sentence was conditional -- “if I did go away” -- she testified that “he thought he would go to jail.”
The final passage at issue from the June 24 letter read, “Tell the kids I love them very much. I’m going to do time, no doubt.” Mrs. Byrd interpreted this passage to mean “[t]hat he thought he was going to go to prison.” Like the previous passage, Appellant’s meaning is plain, and the military judge erred by allowing Mrs. Byrd to “interpret” it.
The first passage at issue from Appellant’s June 26 letter to his wife stated, “If [A.B.] would only write to me that she’s going to stick by me and in court say it didn’t happen.” Mrs. Byrd interpreted this passage to mean that “he wants her not [sic] to say that it didn’t happen.” Again, the passage’s meaning is plain on its face, and the military judge erred by allowing Mrs. Byrd to offer her opinion concerning its meaning.
Appellant also wrote in his June 26 letter:
The main reason I told you what I did in the [car] before I left was to gain trust and answer your questions. I also did it because I know if I tell you the deal, there is a chance for our relationship. I mean, you did say so before, so I’m going to keep that in mind.
The trial counsel asked Mrs. Byrd to explain the reference to the conversation in the car. She answered:
was a conversation that took place when
we were in the car and I was taking him to
During Mrs. Byrd’s explanation of passage five, the trial counsel also asked, “[W]hen he says, ‘I mean you did say so before, so I’m going to keep that in mind,’ what is he talking about there?” Mrs. Byrd answered, “I had told him that if he told me the truth, that – before, when I had found out, that I wouldn’t leave him, that we you know, we could go to get some counseling and we could work through this.” The trial counsel then clarified that Mrs. Byrd was referring to her actions after A.B. first revealed Appellant’s abuse of her.
Mrs. Byrd’s testimony concerning this passage was a permissible explanation of an “ambiguous reference to events that were clear only to the” letter’s author and recipient. Sneed, 34 F.3d at 1581. The Government’s presentation of her testimony concerning Appellant’s remarks during a previous conversation was also independently permissible as an account of admissions by a party opponent. See M.R.E. 801(d)(2).
In his June 26 letter to his wife, Appellant also wrote, “God, I love my children. I want to be a part of their life so bad. How can I . . ., making $15.00 a month the rest of my life.” Mrs. Byrd interpreted this passage to mean “[t]hat if he goes to prison, he’s only going to be making $15.00, I guess a day or whatever. And he wouldn’t be able to help us. He wouldn’t be able to take care of the family.”
The meaning of passage six appears to be clear. Thus, it fell into the first category discussed above, and allowing testimony to interpret it was error. To the extent that this passage is ambiguous, that ambiguity does not appear to implicate any special knowledge of its intended reader. Neither during the motions hearing nor during Mrs. Byrd’s testimony before the members did the Government lay a foundation to establish that Mrs. Byrd had any unique ability to interpret this particular passage. Her testimony was simply conjecture. Thus, even if the interpretation of this passage did not fall into the first category discussed above, it fell into the second. In either case, Mrs. Byrd’s interpretation of passage six constituted impermissible lay opinion testimony.
Appellant’s June 26 letter also stated, “I’d do anything for our marriage, even counseling or pretty much anything you or [A.B.] want. Not guilty will stay in effect. Everything else, I’ll do for the family and their wishes.”
The trial counsel asked Mrs. Byrd, “When he says he’ll do anything for the marriage, what is he talking about?” She answered, “I had told him that I wanted us to get counseling.” The trial counsel then asked, “When did you tell him that?” She replied, “I had been telling him the whole time this was going on. I had told him that we needed to get counseling.” Mrs. Byrd explained that Appellant “said that we couldn’t get counseling. The only counseling we need was each other, because if we told – if we went somewhere and told them what was going on then they would have to act on what we told them.” She also testified that she meant both marriage counseling and counseling concerning the abuse.
Mrs. Byrd’s testimony concerning this passage was permissible for the same reasons discussed in connection with passage five, above. The Government was permitted to elicit Mrs. Byrd’s explanation of ambiguous references that were clear only to the letter’s author and recipient, and the testimony concerning Appellant’s remarks in earlier conversations was admissible as an account of admissions by a party opponent.
The final passage at issue from Appellant’s June 26 letter stated, “They’ll see me of course. I’ll be in prison then, but they know I love them.” The trial counsel asked Mrs. Byrd, “[W]hy would he be in prison?” She replied, “If he got -- if he got found guilty of the charges of the sexual abuse.”
The meaning of passage eight is plain on its face. Mrs. Byrd’s testimony concerning the passage, therefore, fell into the first category discussed above and was inadmissible.
We hold that the military judge properly allowed Mrs. Byrd to provide background information concerning passages five and seven. However, we hold that the military judge erred by allowing the Government to present her lay opinions concerning Appellant’s meaning when he wrote the remaining six passages.
found that the military judge
erroneously allowed Mrs. Byrd’s testimony concerning six of the
will test for prejudice. “We evaluate
prejudice from an erroneous evidentiary ruling by weighing (1) the
the Government’s case, (2) the strength of the defense case, (3) the
materiality of the evidence in question, and (4) the quality of the
This was a hard-fought case, involving extensive evidence presented by both the Government and the defense. The Government’s case included the testimony of A.B. herself concerning her father’s sexual offenses. A.B.’s younger brother testified that he saw Appellant and A.B. in the shower together naked. A.B.’s younger sister testified that she once looked through a crack in their home’s master bedroom door and saw Appellant kissing A.B. Appellant’s wife testified that Appellant twice admitted to her that he did sexually abuse A.B.
The defense case included Appellant’s explicit denial of the offenses, extensive good military character evidence, a limited alibi defense, and evidence about A.B.’s recantation of her allegations in the midst of child custody hearings. While the contentious nature of the case militates in favor of finding prejudice, other aspects of this case convince us that the error was harmless. Mrs. Byrd’s inadmissible testimony concerning the six passages was of limited materiality. Other aspects of her testimony concerning Appellant’s admissions and a request from Appellant to destroy evidence were, if believed, far more damaging to the defense.
Nor was Mrs. Byrd’s testimony about the letters a focal point of the case. For example, during his closing argument to the members, the trial counsel emphasized not Mrs. Byrd’s interpretation of the letters, but rather the language of the letters themselves and Appellant’s testimony about the letters. In the larger context of the Government’s case, Mrs. Byrd’s impermissible opinions concerning six passages in Appellant’s letters were insignificant. To the extent that the letters influenced the findings, it was Appellant’s own words rather than Mrs. Byrd’s interpretations of those words that hurt the defense. Thus, Appellant was not prejudiced by the military judge’s erroneous rulings.
The decision of the United States Army Court of Criminal Appeals is affirmed.
1 The Government satisfied this
condition by presenting the testimony of a civilian psychiatrist from
2 This case was
tried before the 2000
amendment to Federal Rule of Evidence 701, which prohibited lay opinion
testimony “based on scientific, technical, or other specialized
within the scope of Rule 702.” See
Amendments to Federal Rules of Evidence, 529
3 The First,
Third, Fifth, Seventh,
and D.C. Circuits follow rules similar to the Ninth Circuit’s
formulation in Cox. See, e.g.,
United States v. Saccoccia, 58 F.3d
754 (1st Cir. 1995); United
States v. Dicker, 853 F.2d 1103, 1108-09 (3d Cir. 1988); United
v. White, 569 F.2d 263, 267 (5th Cir. 1978); United States v. Marzano, 537 F.2d 257, 268 (7th Cir. 1976); DeLoach v. United States, 307 F.2d
(D.C. Cir. 1962) (pre-Federal Rules of Evidence case); see also
States v. Coleman, 284 F.3d 892, 894 (8th Cir. 2002) (upholding
officer’s testimony interpreting defendant’s “drug jargon”); United
v. People, 250 F.3d 630, 640-42 (8th Cir. 2001) (holding that FBI
interpretations of codefendants’ conversations were inadmissible under
Fed. R. Evid. 701). The Sixth Circuit, however, maintains
that a witness may “testify in the form of an opinion as to his
of a defendant’s statement.” United
States v. Graham, 856 F.2d 756, 759 (6th Cir. 1988); accord
CRAWFORD, Chief Judge (concurring in the result):
majority is incorrect to find an abuse
of discretion, when the “courts have been very liberal in admitting
testimony as to another’s state of mind . . . .”
John Hancock Mut. Life Ins. Co. v. Dutton, 585 F.2d 1289, 1294 (5th Cir. 1978)(admitted testimony of decedent’s daughter that she did not believe that the decedent thought his wife would ever shoot him). Indeed, the preference under the Military Rules of Evidence [hereinafter M.R.E.] is for admission of evidence unless it is not legally and logically relevant. Appellant’s wife, Mrs. Byrd, could certainly testify as to her reasonable interpretation of the letters, a series of veiled threats by Appellant aimed to influence his wife’s testimony and the testimony of the victim, A.B.
To determine the admissibility of opinion testimony by lay witnesses, M.R.E. 701 requires examination of several factors, some of which the majority ignores and are set forth below. The majority also did not consider the M.R.E. 401-404 rules, the standard of review, or the principles behind M.R.E. 701. Moreover, many cases cited by the majority1 would permit the admission of these coded veiled messages by Appellant. Certainly, the judge’s decision in admitting the letters was not an abuse of discretion.
opinions generally are
inadmissible. Nevertheless, the rule
against lay opinions is not an absolute rule and is subject to
relaxation. M.R.E. 701 sets forth the
and is a rule of preference rather than a rule of exclusion. 1 John W. Strong, et al., McCormick
on Evidence § 11 at 48 (1999).
M.R.E. 701 provides:2
If the witness is not testifying as an expert, the testimony of the witness in the form of opinions or inference is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the testimony of the witness or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
This case concerns the first two prongs of this rule. The third prong and the amendments to M.R.E. 702 were added in December 2000 “to eliminate the risk that the reliability requirements set forth in [M.R.E.] 702 would be evaded through the simple expedient of proffering expert in lay witness clothing.” Advisory Committee Notes to Federal Rules of Evidence at 120.
Part of the first prong restates the personal knowledge requirement in M.R.E. 602. That is not an issue here. Another portion of the first prong, which is at issue, is the “rationally based” aspect, that is, the opinion must be a reasonable inference drawn from the facts. The second prong requires the testimony to be helpful to the factfinder’s “clear understanding of the testimony of the witness.” As to this prong, the courts have been surprisingly liberal in admitting lay opinions about the state of mind of third persons. Winant v. Bostic, 5 F.3d 767 (4th Cir. 1993)(witness concluded that land developers never intended to do what they promise); United States v. Rea, 958 F.2d 1206, 1215 (2d Cir. 1992)(“There is no theoretical prohibition against allowing lay witnesses to give their opinions as to the mental states of others. Accordingly, these rules do not, in principle, bar a lay witness from testifying as to whether a defendant in a criminal prosecution had the requisite knowledge.”)(citations omitted); United States v. Hoffner, 777 F.2d 1423, 1425 (10th Cir. 1985).
M.R.E. 701 allows the witness to draw reasonable inferences based on his or her experience and knowledge of the accused. In this case, Appellant’s wife gave her overall impressions simplifying a very detailed letter. “Knowledgeable witnesses can easily satisfy the rational basis and helpfulness criteria in providing interpretative opinions on the mental states of others.” Christopher B. Mueller & Laird C. Kirkpatric, Evidence § 7.4 at 615 (3d ed. 2003).
it is impractical for a witness to
verbalize all the data, the witness’s inferential testimony is
The rule assumes that the natural characteristics of the adversary system will generally lead to an acceptable result, since the detailed account carries more conviction than broad assertion, and a lawyer can be expected to display his witness to the best advantage. If he fails to do so, cross-examination and argument will point up the weakness.
This is especially
true where the witness attempts to choose up sides.
courts have been more receptive to lay
opinions about the state of mind of third parties.
The standard of review for evidentiary rulings is whether the judge abused his discretion. The judge in this case did not. The abuse of discretion standard requires not that the judge was wrong, but rather was clearly wrong. As we have stated, it is not that the judge is maybe wrong or probably wrong, but rather “it must strike a cord of wrong with the force of a five-week-old, unrefrigerated dead fish.” United States v. French, 38 M.J. 420, 425 (C.M.A. 1994)(quoting Parts & Electric Motors Inc. v. Sterling Electric, Inc., 866 F.2d 228, 233 (7th Cir. 1988)).
At a session pursuant to Article 39(a), Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. 839(a) (2000), the trial counsel laid a foundation for Mrs. Byrd’s opinions by establishing that she had known Appellant for fourteen years and had been married to him for eight. Additionally, Mrs. Byrd was familiar with Appellant’s handwriting from checks, letters, and other documents. At the Article 39(a) session, the judge overruled the defense’s objection, based on M.R.E. 403 and speculation, to Mrs. Byrd’s opinion. Nevertheless, prior to admitting her opinion at trial, the trial counsel laid an additional foundation by admitting and playing the taped conversations from the answering machines. Additionally, the trial counsel selected only the passages highlighted and mentioned below.
Prior to the testimony concerning these passages, the prosecution, without defense objection, played a number of messages left by Appellant on his wife’s answering machine. During these conversations, he stated:
If my daughter wants that furniture, she can have it. I’m not getting furniture for you. I’m getting it for my daughter. ’cause I’m not throwing smoke up nobody’s butt. I’m dead serious. You need to get with me. Trust me. Or say bye bye to the furniture.
I want to be sure that you’re – you’re still good to go. No matter what you feel, it’s – the bottom line is, I need you as much as I think you need me. So don’t get personnel [sic]. Let’s just stick with what we need to do to get things done.
These taped messages from Appellant provided not only a factual context for many of Appellant’s written remarks, but also evidenced a level of spousal and familial communication that, over a period of 8-14 years, was certainly sufficient foundation for the opinions Mrs. Byrd expressed on the stand.
Appellant evinced a tendency to
speak in cryptic, obfuscatory terms. A majority of courts permit a witness to
interpret “coded or ‘code-like’ conversations.”
The tape and its foundation were heard by the members before they heard Mrs. Byrd’s opinion on the letters (which had been admitted without objection just before the tape played). Thus, by the time the questioned opinion came before the members, there was a much greater foundation than there had been in the Article 39(a) session. After the members heard the tape, but before they heard her opinions on the letters, Mrs. Byrd gave her opinion on what other passages on the tape meant. Some of these cover the same subject matter as the letters.
Mrs. Byrd’s testimony, in total, added significant detail to the factual setting against which her opinions were set before the members, and reinforced a level of familiarity with her husband’s communicative habits consistent with a lay opinion under M.R.E. 701.
hearing the questioned opinions, the
members also heard Mrs. Byrd testify to the reasonable inferences that
drawn from the taped telephone messages from Appellant which were
meaning to the letters and issue in this case.
She testified that Appellant had “kind of used the furniture
a bargaining tool.” After hearing the
tape, Mrs. Byrd explained, over objection, Appellant’s vague references
furniture, by saying, “I took it that he had called Helig
Meyers and told them to come pick up the furniture and that [A.B.] was
one that was going to be able to decide if we were going to keep the
and “if she didn’t keep saying . . . that the abuse didn’t happen, then
going to have them come pick up the furniture.”
Explaining Appellant’s taped remark that “if you ever do
anything for me
on Thursday morning, you can take me up there with A.B.”
Mrs. Byrd said, without objection, that A.B.
was to testify at a grand jury hearing on Thursday and Appellant was
ride along back to
Byrd testified that “since the furniture was in his name and not in
thought [sic] I was making the payments, they could come take it out
called.” Mrs. Byrd testified that she
had known Appellant 13-14 years and had been married to him for 8. After getting married, they had lived at
As to each passage the judge admitted, I offer the following views.
I agree with the majority that “Appellant’s meaning in this passage is unclear,” but only to someone who did not know him over a period of time and had not engaged in other conversations with him. Mrs. Byrd had already testified that Appellant was the primary breadwinner and controlled the family funds. And if A.B. didn’t testify his way, the family would suffer economically. That is exactly what this passage meant. Thus, her testimony was admissible on that point and satisfied all three requirements of M.R.E. 701.
The same rationale applies for the admission of her testimony concerning this passage. It is clear that he would be “unable to help financially,” meaning that if she wanted financial help, A.B. should not testify as to what she has been telling the investigators.
As to this passage, it is permissible for the wife to say, or interpret this passage to mean, that he is going to go to prison unless the family helps him -- again satisfying all three requirements of M.R.E. 701. The judge’s ruling is not an abuse of discretion. The language as to this passage, “she’s going to stick by me,” and in court say it didn’t happen, was consistent with her other testimony. She had already testified that Appellant had at least implied that he wanted A.B. to testify favorably for him. Thus, this evidence was already present, and it was not error to repeat this testimony.
passage was helpful to the factfinders
because Mrs. Byrd began her testimony on direct
examination by describing Appellant’s admission to her in the car at
Again, this showed Mrs. Byrd’s keen insight in interpreting Appellant’s reference to making $15 a month for the rest of his life as an intimation that he would no longer be able to support the family if they did not testify favorably.
Mrs. Byrd’s opinion that Appellant is referring to counseling is benign and irrelevant. What hurts Appellant is Mrs. Byrd’s recitation of his admission at the counseling session which is admissible in its own right under M.R.E. 801(d)(2), and thus is not error.
The prosecutor’s question to Mrs. Byrd was, “[W]hy would he be in prison?” Mrs. Byrd answered, “[I]f he got found guilty of the charges . . . .” This statement was both harmless and irrelevant under the circumstances.
For these reasons, I concur only in the result of the lead opinion.
1 See, e.g., United States v. Coleman, 284 F.3d 892 (8th Cir. 2002); United States v. Dicker, 853 F.2d 1103 (3d Cir. 1988)(and cases cited therein). See also United States v. Garcia, 291 F.3d 127, 140-42 (2d Cir. 2002); United States v. Novaton, 271 F.3d 968, 1007-09 (11th Cir. 2001); United States v. De Peri, 778 F.2d 963, 977-78 (3d Cir. 1985).