IN THE
CASE OF
UNITED
STATES, Appellee
v.
William A.
BYRD, Sergeant
No.
03-0561
Crim. App.
No.
9901101
Argued
Decided
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.
Counsel
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
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.
BACKGROUND
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.
The
Army Court of Criminal Appeals set
aside the original convening authority’s action in an unpublished
opinion. The convening authority then
again approved
the sentence as adjudged, but retroactively waived forfeitures for a
six-month
period. The
FACTS
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.
DISCUSSION
M.R.E.
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
a fact
in issue. Like other evidentiary
rulings, a military judge’s application of M.R.E. 701 is reviewed for
an abuse
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
issue
of first impression in military law.
Accordingly, we will seek guidance from judicial interpretations
of
Federal Rule of Evidence 701, the model for its military
The
general rule in federal civilian courts is that “[l]ay witnesses are
normally
not permitted to testify about their subjective interpretations or
conclusions
as to what has been said.” United
States v. Cox, 633 F.2d 871, 875 (9th Cir. 1980); see also
The
Second Circuit has emphasized the
foundational requirements that the proponent must satisfy before a
witness’s
interpretation of another person’s meaning becomes admissible. “In order to allow lay opinion testimony
interpreting a facially coherent conversation . . ., the government
would have
to establish a foundation that called into question the apparent
coherence of
the conversation so that it no longer seemed clear, coherent, or
legitimate.”
We
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
language or
slang involved, lay witness opinion testimony is improper, as is the
lay
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.
Passage
One
Appellant’s
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.
Passage
Two
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.”
Passage
Three
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.
Passage
Four
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.
Passage
Five
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:
It
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).
Passage
Six
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.
Passage
Seven
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.
Passage
Eight
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.
Summary
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.
Prejudice
Analysis
Having
found that the military judge
erroneously allowed Mrs. Byrd’s testimony concerning six of the
passages, we
will test for prejudice. “We evaluate
prejudice from an erroneous evidentiary ruling by weighing (1) the
strength of
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
evidence in
question.”
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.
CONCLUSION
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
knowledge
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
States
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
653, 655
(D.C. Cir. 1962) (pre-Federal Rules of Evidence case); see also
United
States v. Coleman, 284 F.3d 892, 894 (8th Cir. 2002) (upholding
police
officer’s testimony interpreting defendant’s “drug jargon”); United
States
v. People, 250 F.3d 630, 640-42 (8th Cir. 2001) (holding that FBI
agent’s
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
understanding
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):
The
majority is incorrect to find an abuse
of discretion, when the “courts have been very liberal in admitting
witnesses’
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.
Lay
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
prevailing practice
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).
When
it is impractical for a witness to
verbalize all the data, the witness’s inferential testimony is
generally
admissible.
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.
The
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.
Moreover,
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.
Before
hearing the questioned opinions, the
members also heard Mrs. Byrd testify to the reasonable inferences that
could be
drawn from the taped telephone messages from Appellant which were
similar in
meaning to the letters and issue in this case.
She testified that Appellant had “kind of used the furniture
almost like
a bargaining tool.” After hearing the
tape, Mrs. Byrd explained, over objection, Appellant’s vague references
to the
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
the only
one that was going to be able to decide if we were going to keep the
furniture”
and “if she didn’t keep saying . . . that the abuse didn’t happen, then
he was
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
asking to
ride along back to
Mrs.
Byrd testified that “since the furniture was in his name and not in
mine, even
thought [sic] I was making the payments, they could come take it out
anytime he
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.
Passage
One
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.
Passage
Two
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.
Passage
Three
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
Five
This
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
Passage
Six
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.
Passage
Seven
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.
Passage
Eight
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).
2
See Amendments
to the Federal Rules of Evidence, 529