UNITED STATES, Appellee 

v. 

Kimberly L. COLLIER, 

Aviation Machinist’s Mate Third Class 

U.S. Navy, Appellant 

No. 08-0495 

Crim. App. No. 200601218 

United States Court of Appeals for the Armed Forces

Argued December 17, 2008 

Decided May 18, 2009 

RYAN, J., delivered the opinion of the Court, in which EFFRON, 

C.J., and ERDMANN and STUCKY, JJ. joined. BAKER, J., filed a 

separate dissenting opinion. 

Counsel

For Appellant: Captain Kyle Kilian, USMC (argued); Lieutenant 

W. Scott Stoebner, JAGC, USN (on brief). 

For Appellee: Colonel Louis J. Puleo, USMC (argued); Brian K. 

Keller, Esq. (on brief). 

Military Judges: Michael J. Catanese, Daniel E. O’Toole, and 

Christopher D. Connor 

 

 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Collier, No. 08-0495/NA 

2

 Judge RYAN delivered the opinion of the Court. 

 This case presents the question whether the military judge 

erred in granting the Government’s motion in limine prohibiting 

Appellant’s defense counsel from cross-examining HM2 C, the main 

Government witness, about an alleged homosexual romantic 

relationship between her and Appellant and from introducing any 

evidence of such a relationship.1

 While the military judge did 

permit cross-examination about a close friendship, the defense 

that Appellant wanted to present was that HM2 C framed Appellant 

for larceny as a result of their romantic relationship ending 

badly. Because of this ruling, Appellant was free only to 

assert the motivation of an angry friend rather than a 

disappointed lover; as the Government then argued in its 

closing, the motivation of an angry, vengeful friend “strains 

all logic; it’s just not credible.” 

The military judge’s ruling prevented Appellant’s counsel 

from fully exploring HM2 C’s bias and motive to misrepresent the 

truth, and precluded Appellant from presenting her theory of the 

 

1

 Upon Appellant’s petition, we granted review of the following 

issue: 

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY 

EXCLUDING, PURSUANT TO M.R.E. 403, RELEVANT EVIDENCE 

OF A PRIOR HOMOSEXUAL RELATIONSHIP BETWEEN APPELLANT 

AND A CENTRAL GOVERNMENT WITNESS OFFERED BY THE 

DEFENSE TO SHOW BIAS AND MOTIVE TO MISREPRESENT ON THE 

PART OF THE GOVERNMENT WITNESS. 
United States v. Collier, No. 08-0495/NA 

3

case. Under the facts of this case, this was a violation of 

Appellant’s Sixth Amendment right to confront a witness against 

her. See Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986) 

(“[A] criminal defendant states a violation of the Confrontation 

Clause by showing that he was prohibited from engaging in 

otherwise appropriate cross-examination designed to show a 

prototypical form of bias on the part of the witness . . . .”). 

Under the circumstances of this case, including the fact that in 

its closing argument the Government exploited the evidentiary 

limitation it requested to criticize the theory with which 

Appellant was left, we find this constitutional error was not 

harmless beyond a reasonable doubt. The decision of United 

States Navy-Marine Corps Court of Criminal Appeals (CCA) 

upholding the military judge’s ruling is reversed. 

I. Facts

 A special court-martial composed of members convicted 

Appellant, contrary to her pleas, of one specification of 

larceny of military property and one specification of 

obstructing justice by wrongfully endeavoring to influence the 

testimony of a witness, in violation of Articles 121 and 134, 

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 921, 934 

(2000). The sentence adjudged by the court-martial and approved 

by the convening authority included a bad-conduct discharge, 

confinement for six months, and reduction to the lowest enlisted 
United States v. Collier, No. 08-0495/NA 

4

grade. The United States Navy-Marine Corps Court of Criminal 

Appeals affirmed. United States v. Collier, No. NMCCA 

200601218, 2008 CCA LEXIS 53, at *29, 2008 WL 495700, at *11 (NM. Ct. Crim. App. Feb. 21, 2008) (unpublished). 

 Prior to her court-martial, Appellant served as the tool 

custodian for Helicopter Combat Support Squadron EIGHT (HC-8) in 

Norfolk, Virginia. The larceny charge in this case involves 

tools alleged to have been taken from this command. Hospitalman 

Second Class (HM2) C testified for the Government that she found 

these tools in her home. HM2 C testified that she and Appellant 

had been good friends and that Appellant had stayed at her home 

four or five nights a week. Appellant kept some of her 

belongings at HM2 C’s home, specifically, in HM2 C’s son’s 

bedroom. At some point, Appellant and HM2 C had a falling out 

and HM2 C requested that Appellant not return to HM2 C’s home. 

The women disagreed about how Appellant could retrieve her 

belongings from HM2 C, which eventually resulted in Appellant 

asking her command for help in obtaining several items she 

claimed were still at HM2 C’s house, including tools, a 

television, and a diamond ring. HM2 C testified that when she 

checked her home for these items, she first found a bag of tools 

in her garage, and later found more tools in a chest of drawers 

in her son’s room. 
United States v. Collier, No. 08-0495/NA 

5

 After each discovery, HM2 C consulted with her command and 

then arranged for the return of the tools to Appellant’s 

command. There were 215 tools returned to HC-8 by HM2 C, of 

which approximately 65 were etched with the command code “B10” 

or “B1.” Among the tools returned was an etcher. Testimony at 

trial established that prior to HM2 C turning them in, no one 

had noticed this large quantity of tools missing. This was true 

even though a cursory visual check of the locker in which such 

tools were kept was done not long before the tools were turned 

in. Testimony also established that while all of the recovered 

tools were among those used by HC-8, many, if not all, of them 

could be purchased at retail stores such as Sears. 

 Some time after Appellant had been charged with larceny of 

the tools, HM2 C encountered Appellant at a beauty salon. HM2 C 

testified that at the salon, she overheard Appellant speaking on 

her cell phone. According to HM2 C, while Appellant was 

standing close to her, Appellant said into her cell phone: 

“Yeah, we should get this bitch; let’s get her.” When HM2 C 

left the salon, she found that a tire on her car had been 

slashed. Appellant admitted to the civilian authorities that 

she had slashed the tire. Based on this incident, Appellant was 

charged with one count of obstructing justice by wrongfully 

endeavoring to influence the testimony of a witness, under 

Article 134, UCMJ. 
United States v. Collier, No. 08-0495/NA 

6

 Prior to court-martial, the Government filed a motion in

limine seeking to prohibit Appellant’s defense counsel from 

cross-examining HM2 C about an alleged homosexual romantic 

relationship between her and Appellant and from introducing any 

evidence of such a relationship. The basis of the Government’s 

motion was threefold: (1) no such relationship existed, and 

even if it did exist it was not relevant; (2) even if the 

relationship was relevant, prejudice created by statute and Navy 

policy prohibiting homosexual conduct would substantially 

outweigh the relevance; and (3) allowing this line of 

questioning would “serve only to embarrass and harass the 

witness.” 

At the hearing on the motion, trial counsel advanced two 

additional arguments. First, Appellant could show sufficient 

bias by inquiring into the fact that the women were no longer 

friends because the women had argued about HM2 C’s daughter and 

also because HM2 C’s boyfriend didn’t like Appellant. Second, 

the factual dispute about whether the two women actually had a 

romantic or sexual relationship was a collateral matter that 

threatened to take over the proceedings and confuse the members. 

During the hearing trial counsel further asserted that evidence 

of a homosexual relationship was “too inflammatory” for the 

members to hear. As part of this assertion, trial counsel 

emphasized the homosexual nature of the relationship and linked 
United States v. Collier, No. 08-0495/NA 

7

the danger of unfair prejudice to the congressional finding that 

“homosexuality presents an unacceptable risk to the high 

standards of morale, good order, and discipline in the 

military.” Transcript of Record at 54, United States v.

Collier, No. 08-0495; 10 U.S.C. § 654(a)(14) (2000). 

The defense opposed the motion, arguing that the Sixth 

Amendment guarantees the right to confront and cross-examine 

witnesses and that the limitation requested by the Government 

violated those rights. Defense counsel argued that crossexamination and any related extrinsic evidence of a romantic 

homosexual relationship would be admissible under Military Rule 

of Evidence (M.R.E.) 608(c) to support a theory that HM2 C was 

biased against Appellant and had a motive to lie in her 

testimony because their relationship had ended badly. See

M.R.E. 608(c) (“Bias, prejudice, or any motive to misrepresent 

may be shown to impeach the witness either by examination of the 

witness or by evidence otherwise adduced.”). In addition, 

defense counsel argued that this evidence would be relevant to 

show that the tire slashing was due to Appellant’s anger over 

the breakup of their relationship, rather than done “with the 

intent to influence” HM2 C’s testimony, as required to prove the 

obstructing justice charge. Manual for Courts-Martial, United 

States pt. IV, para. 96b(3) (2005 ed.) (MCM). 
United States v. Collier, No. 08-0495/NA 

8

While the Government claimed that there was no qualitative 

difference between a friendship and a romantic relationship for 

purposes of showing bias, defense counsel disagreed, arguing: 

“What motivates a person to do something, or how they may be 

biased, I think, are completely different, apples and oranges, 

between a friendship and a romantic relationship, whether it be 

homosexual or heterosexual.” 

 After hearing argument on the motion, the military judge 

stated on the record that the defense had “presented sufficient 

evidence, for the purposes of the motion, that there was such a 

sexual relationship.” Transcript of Record at 75-76, Collier, 

No. 08-0495; see M.R.E. 104(a) (“Preliminary questions 

concerning . . . the admissibility of evidence . . . shall be 

determined by the military judge.”). In his formal ruling on 

the motion, the military judge did not make a conclusive finding 

of fact as to whether the sexual relationship actually occurred, 

although he did note that during the hearing on the motion: 

[T]he defense presented the testimony of the 

accused that there was such a sexual 

relationship. The accused also testified that 

their relationship lasted four months and ended 

just prior to the witness reporting the alleged 

larceny. The accused also testified that their 

relationship was always sexual, until it ended on 

or about early March 2004. The government 

presented evidence by cross-examination of the 

accused and by affidavit that tends to refute any 

sexual aspect to the relationship. 
United States v. Collier, No. 08-0495/NA 

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Findings and Ruling on Government Motion In Limine at 1, United 

States v. Collier, Special Court-Martial, Tidewater Judicial 

Circuit (Nov. 24, 2004). The military judge found that the 

“nature of the relationship has some relevance to the 

determination of [the bias] issue by the jury.” Id. at 2. He 

then concluded that after “balancing this relevance with M.R.E. 

403 and M.R.E. 611, the court finds that the sexual nature of 

this relationship is not sufficiently relevant.” Id. Finally, 

the judge ruled: 

[T]he defense may ask, on cross-examination, if the 

witness would characterize the relationship as close, 

personal and/or emotionally close. The defense may 

ask her if the relationship was closer than ordinary 

friends. Pursuant to M.R.E. 608(c), the defense may 

also introduce extrinsic evidence on the nature of the 

relationship including testimony or documents, if 

otherwise admissible. However, the defense will not 

open the issue of any alleged sexual acts between the 

witness and the accused. Specifically, the defense 

will not ask any witness if the relationship was 

sexual, homosexual, intimate or romantic. 

Id. (emphasis added). 

 The CCA found that the military judge did not abuse his 

discretion when he limited defense counsel’s cross-examination 

of HM2 C. Collier, 2008 CCA LEXIS 53, at *11, 2008 WL 495700, 

at *4. Specifically, the CCA stated: “Reviewing the facts 

before the military judge at the time of his ruling, we conclude 

that he correctly balanced the probative value against the 

prejudicial impact of evidence that would have been of a 
United States v. Collier, No. 08-0495/NA 

10

particularly inflammatory nature in a trial by court-martial.” 

Id. at *10, 2008 WL495700, at *4. In support of this 

conclusion, the CCA cited “‘the high degree of antipathy to 

homosexuality in the armed forces’” as well as the fact that 

“‘[a] person who engages in homosexual conduct . . . is subject 

to mandatory discharge, with very limited exceptions.’” Id.

(quoting United States v. Phillips, 52 M.J. 268, 273 (C.A.A.F. 

2000) (Effron, J., dissenting)). 

II. Discussion

A. The Sixth Amendment and limits on cross-examination

 It is well settled that “the exposure of a witness’ 

motivation in testifying is a proper and important function of 

the constitutionally protected right of cross-examination.” 

Davis v. Alaska, 415 U.S. 308, 316-17 (1974). Through crossexamination, an accused can “expose to the jury the facts from 

which jurors . . . could appropriately draw inferences relating 

to the reliability of the witness.” Id. at 318. A limitation 

on an accused’s presentation of bias evidence may be a violation 

of the Sixth Amendment right to confront witnesses. The 

question is whether “[a] reasonable jury might have received a 

significantly different impression of [the witness’s] 

credibility had [defense counsel] been permitted to pursue his 

proposed line of cross-examination.” Van Arsdall, 475 U.S. at 

680. The right of cross-examination is not unlimited, however; 
United States v. Collier, No. 08-0495/NA 

11

the accused’s confrontation right does not give, for example, 

free license to cross-examine a witness to such an extent as 

would “‘hammer th[e] point home to the jury.’” United States v. 

James, 61 M.J. 132, 135 (C.A.A.F. 2005) (quoting United States 

v. Nelson, 39 F.3d 705, 708 (7th Cir. 1994)). Whether 

sufficient cross-examination has been permitted depends on 

whether the witness’s motivation for testifying has already been 

exposed and “further inquiry . . . would [be] marginally 

relevant at best and potentially misleading.” United States v. 

Carruthers, 64 M.J. 340, 344 (C.A.A.F. 2007) (finding crossexamination of coconspirator about his pretrial agreement was 

sufficient even though the military judge had refused to permit 

questions related to the term setting a maximum punishment). 

 In this case, the military judge’s ruling prohibited all 

cross-examination and extrinsic evidence regarding a sexual or 

romantic relationship between Appellant and HM2 C. This did not 

allow Appellant to expose the alleged nefarious motivation 

behind HM2 C’s allegations and testimony. The Government argues 

that Appellant was able to conduct sufficient cross-examination 

without revealing whether the relationship between the two women 

was a romantic one. However, it is intuitively obvious that 

there is a qualitative difference between the breakup of a 

friendship and a badly ended romantic relationship, whether that 

romantic relationship was sexual or not. As has long been 
United States v. Collier, No. 08-0495/NA 

12

recognized, “Heav’n has no Rage, like Love to Hatred turn’d.” 

William Congreve, The Mourning Bride 39 (Jacob Tonson 1703) 

(1697). We have no doubt that the romantic nature of a 

relationship has a “special relevance” to motivation such that 

allowing additional cross-examination in that area is not a mere 

“opportunity . . . to hammer th[e] point home to the jury.” 

Carruthers, 64 M.J. at 344 (citation and quotation marks 

omitted). 

Appellant claimed during her testimony on the motion in

limine that her relationship with HM2 C went beyond friendship, 

to a sexual and romantic relationship that lasted four months, 

during which time she lived with HM2 C. If the members had been 

given evidence of a sexual and romantic relationship between HM2 

C and Appellant, they might have had a significantly different 

impression of HM2 C’s credibility. In the context of a romantic 

relationship turned sour, Appellant’s theory of the case, in 

which HM2 C framed Appellant, could have been credible to the 

panel. 

Of course, “trial judges retain wide latitude insofar as 

the Confrontation Clause is concerned to impose reasonable 

limits on such cross-examination based on concerns about, among 

other things, harassment, prejudice, confusion of the issues, 

the witness’ safety, or interrogation that is repetitive or only 

marginally relevant.” Van Arsdall, 475 U.S. at 679. In this 
United States v. Collier, No. 08-0495/NA 

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case, the military judge acknowledged that Appellant had a Sixth 

Amendment right to confront HM2 C, but ruled that evidence of a 

sexual relationship between them was not admissible under M.R.E. 

403 and M.R.E. 611, both of which reflect the concerns cited by 

the Supreme Court in Van Arsdall. See M.R.E. 403 (requiring a 

military judge to decide whether the probative value of evidence 

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”); M.R.E. 611(a) (allowing 

military judge to control the mode and order of interrogating 

witnesses, including to “protect [them] from harassment or undue 

embarrassment”). 

A military judge’s ruling that bias evidence is 

inadmissible is reviewed for an abuse of discretion. United 

States v. Moss, 63 M.J. 233, 236 (C.A.A.F. 2006). For the 

ruling to be an abuse of discretion, it must be “more than a 

mere difference of opinion”; rather, it must be “‘arbitrary, 

fanciful, clearly unreasonable’ or ‘clearly erroneous.’” United 

States v. McElhaney, 54 M.J. 120, 130 (C.A.A.F. 2000) (quoting 

United States v. Miller, 46 M.J. 63, 65 (C.A.A.F. 1997); United 

States v. Travers, 25 M.J. 61, 62 (C.M.A. 1987)). Although “[a] 

military judge enjoys wide discretion in applying [M.R.E.] 

403[,] . . . [t]his Court gives military judges less deference 
United States v. Collier, No. 08-0495/NA 

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if they fail to articulate their balancing analysis on the 

record.” United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 

2000) (citations and quotation marks omitted). In this case, 

the military judge did not make any findings of fact or 

conclusions of law about the objections raised by the Government 

under R.C.M. 611 and M.R.E. 403; he merely recited their 

arguments. Because of this failure to articulate his analysis, 

we accord the military judge’s ruling less deference and will 

examine the record to assess both his decision and that of the 

CCA. United States v. Bins, 43 M.J. 79, 85-86 (C.A.A.F. 1996). 

Harassment of the witness

The military judge’s ruling reiterated the Government’s 

request that he use his authority under M.R.E. 611(a)(3) “to 

control the scope and mode of witness interrogation, [and] to 

prevent the harassment of witnesses.” Like the identical 

federal rule, M.R.E. 611 “calls for a judgment under the 

particular circumstance whether interrogation tactics entail 

harassment or undue embarrassment.” Fed. R. Evid. 611 advisory 

committee’s note, reprinted in 28 Charles Alan Wright & Victor 

James Gold, Federal Practice and Procedure 320 (1993). In this 

case, the military judge made no findings about the likelihood 

that HM2 C would suffer from undue embarrassment or harassment 

as a result of cross-examination or the presentation of bias 

evidence. Nor do we see any evidence in the record that defense 
United States v. Collier, No. 08-0495/NA 

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counsel planned to conduct cross-examination in a threatening or 

embarrassing manner. From a practical standpoint, all bias 

evidence has some potential to embarrass the witness; after all, 

counsel is attempting to show that the witness has reason to lie 

and is promoting the inference that the witness is in fact 

lying. See United States v. Williams, 40 M.J. 216, 218 (C.M.A. 

1994) (“By definition, effective impeachment evidence should be 

prejudicial to a witness” being cross-examined.) (emphasis in 

original). Moreover, while M.R.E. 611 permits a military judge 

to impose limitations on the length and details of crossexamination, it does not purport to authorize preemptively 

shutting the door completely on otherwise relevant crossexamination. See United States v. Jones, 49 M.J. 85, 88 

(C.A.A.F. 1998) (noting that a military judge has wide latitude 

to restrict cross-examination “‘only after there has been 

permitted as a matter of right sufficient cross-examination’” 

(quoting United States v. Lindstrom, 698 F.2d 1154, 1160 (11th 

Cir. 1983))). The military judge’s use of M.R.E. 611 to 

foreclose any cross-examination into a romantic or sexual 

relationship without evidence of potential harm was an abuse of 

discretion under these circumstances. 

Waste of time or confusion of issues

 The Government also asserted that the uncertainty over 

whether there was a homosexual relationship between Appellant 
United States v. Collier, No. 08-0495/NA 

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and HM2 C was a “disputed collateral matter, which may involve 

the conflicting testimony of several witnesses, leading to a 

waste of time and a confusion of the issues for the jury.” 

Although the military judge found that there was conflicting 

evidence on the existence of a homosexual romantic relationship 

between Appellant and HM2 C, he made no factual findings about 

any delay or confusion that could result from the crossexamination of HM2 C or the presentation of extrinsic evidence 

under M.R.E. 608(c) on the question. From a review of the 

record, we note that defense counsel planned to ask HM2 C about 

the relationship and, if she denied it existed, to ask two 

additional witnesses, one of whom ultimately testified at the 

court-martial. The record does not support the military judge’s 

decision to take the ultimate questions -- whether that 

relationship existed and whether it led HM2 C to lie -- away 

from the members. Having found that Appellant made a threshold 

showing there was “some evidence” of such a relationship, it was 

for the members, as the triers of fact, to decide if a 

relationship existed and if its end caused HM2 C to be biased or 

to misrepresent. See Bins, 43 M.J. at 85 (noting that it is the 

military judge’s duty to determine only whether there is “some 

evidence that tend[s] to establish” a fact and finding that the 

military judge “exceeded his authority and usurped the members’ 
United States v. Collier, No. 08-0495/NA 

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role” when he decided for himself whether the witness was biased 

for the reason proffered by the appellant). 

Danger of unfair prejudice 

The third main argument offered by the Government, but not 

recited in the military judge’s ruling, was that evidence of a 

homosexual relationship was too prejudicial to be admitted. It 

was this argument that the CCA credited in its decision 

upholding the ruling of the military judge, concluding that the 

military judge did not err in excluding the evidence due to “the 

prejudicial impact of evidence that would have been of a 

particularly inflammatory nature in a trial by court-martial.” 

Collier, 2008 CCA LEXIS 53, at *10, 2008 WL 495700, at *4. This 

conclusion supplied a rationale for the military judge’s ruling 

that the military judge himself did not articulate and, further, 

it inappropriately focused on a generalized and amorphous 

“prejudicial impact” without identifying who or what would be 

prejudiced. Id. (citing as evidence of prejudicial impact the 

“‘high degree of antipathy to homosexuality in the armed 

forces’” as reflected in congressional findings supporting the 

mandatory discharge of most servicemembers who engage in 

homosexual conduct (quoting Phillips, 52 M.J. at 273 (Effron, 

J., dissenting)). 

First, the term “unfair prejudice” in the context of M.R.E. 

403 “speaks to the capacity of some concededly relevant evidence 
United States v. Collier, No. 08-0495/NA 

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to lure the factfinder into declaring guilt on a ground 

different from proof specific to the offense charged.” Old 

Chief v. United States, 519 U.S. 172, 180 (1997) (analyzing the 

purpose behind Fed. R. Evid. 403, which is identical to M.R.E. 

403) (emphasis added); see also Fed. R. Evid. 403 advisory 

committee’s note (“‘Unfair prejudice’ within [Fed. R. Evid. 403] 

means an undue tendency to suggest decision on an improper 

basis, commonly, though not necessarily, an emotional one.”). 

M.R.E. 403 addresses prejudice to the integrity of the trial 

process, not prejudice to a particular party or witness. In 

this case, the military judge made no findings related to 

potential prejudice to the trial process that could be created 

by evidence of homosexuality, such as a tendency for members 

either to disbelieve the witness or to find Appellant guilty 

without a proper basis. In the context of an interracial 

relationship, the Supreme Court recognized that “[s]peculation 

as to the effect of jurors’ racial biases cannot justify 

exclusion of cross-examination with such strong potential to 

demonstrate the falsity of [the witness’s] testimony.” Olden v. 

Kentucky, 488 U.S. 227, 232 (1988). Any conclusion that the 

factfinders would be predisposed against either HM2 C or 

Appellant in this case would have been similarly speculative. 

Members are presumed to follow a military judge’s instructions 

to consider evidence for a proper purpose, such as bias or 
United States v. Collier, No. 08-0495/NA 

19

motive to misrepresent, and not let personal beliefs or feelings 

affect their determinations about witness credibility. United 

States v. Taylor, 53 M.J. 195, 198 (C.A.A.F. 2000). 

Second, the CCA’s decision placed unwarranted emphasis on 

the military context when it based its conclusion on the 

potential for unfair prejudice. We recognize the policy 

subjecting homosexuals to mandatory separation if they have 

engaged in, or solicited another to engage in, homosexual acts. 

10 U.S.C. § 654(b) (2000). However, that policy is not a per se 

indication of unfair prejudice within the military justice 

system. This Court has not allowed the military’s policy on 

homosexuality to prevent evidence of homosexuality from being 

used against an accused. See Phillips 52 M.J. at 272-73 

(permitting trial counsel to offer evidence that the accused was 

engaged in a homosexual relationship). And we see no principled 

reason to prevent an accused from using this same type of 

evidence to potential advantage, particularly where, as here, 

Appellant was the proponent of the evidence of a homosexual 

relationship with the Government’s primary witness. See

Williams, 40 M.J. at 218 (stating the military judge erred if he 

excluded evidence based on the potential for prejudice to the 

accused because the accused “was the proponent of the evidence 

and waived objection to any adverse inferences from such 

evidence”). Finally, we note that the CCA decision relied upon 
United States v. Collier, No. 08-0495/NA 

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language from the dissenting opinion in Phillips to conclude 

that the evidence was too prejudicial. Collier, 2008 CCA LEXIS 

53, at *10-*11, 2008 WL 495700, at *4. The dissent in Phillips, 

however, did not foreclose the possibility that evidence of a 

homosexual relationship could be admissible. See Phillips, 52 

M.J. at 273 (Effron, J., dissenting) (recognizing that “a sexual 

relationship that both pre-dates and post-dates a marriage, 

regardless of sexual orientation, is potentially relevant on the 

question of whether the marriage is a sham”). 

Because the military judge’s ruling lacked an articulated 

or supportable legal basis, and was thus an abuse of discretion, 

and the decision of the CCA was based on speculation about 

prejudicial impact unrelated to any specific findings of the 

military judge,2 we find that the limitation on cross-examination 

and related bias evidence was a violation of Appellant’s Sixth 

Amendment confrontation rights. 

B. Harmlessness beyond a reasonable doubt

 Having found constitutional error, the question 

remains whether that error was harmless beyond a reasonable 

doubt. Chapman v. California, 386 U.S. 18, 24 (1967). In 

the case of limitation of cross-examination, “the correct 

 

2

 For example, the military judge made no comments or assessment 

on the record of prejudice related to the risks of investigation 

and separation associated with the military’s “Don’t Ask, Don’t 

Tell” policy, which was the prejudice referenced by the CCA. 

Collier, 2008 CCA LEXIS 53, at *10, 2008 WL 495700, at *4. 
United States v. Collier, No. 08-0495/NA 

21

inquiry is whether, assuming that the damaging potential of 

the cross-examination were fully realized, a reviewing 

court might nonetheless say that the error was harmless 

beyond a reasonable doubt.” Van Arsdall, 475 U.S. at 684. 

The burden is on the Government to show that “there is no 

reasonable possibility” that the error “contributed to the 

contested findings of guilty.” United States v. Othuru, 65 

M.J. 375, 377 (C.A.A.F. 2007). An error has not 

contributed to the verdict when it was “‘unimportant in 

relation to everything else the jury considered on the 

issue in question, as revealed in the record.’” Id.

(quoting Yates v. Evatt, 500 U.S. 391, 403 (1991), 

overruled on other grounds by Estelle v. McGuire, 502 U.S. 

62, 72 n.4 (1991)). 

 To find that the error here warrants relief, we need 

not conclude that Appellant’s defense would have succeeded. 

Instead the inquiry should focus on whether the military 

judge’s ruling “essentially deprived Appellant of [her] 

best defense” that “may have tipped the credibility balance 

in Appellant’s favor.” Moss, 63 M.J. at 239. Because this 

error was a violation of Appellant’s right to confront 

witnesses, we apply the balancing test articulated by the 

Supreme Court in Van Arsdall: 
United States v. Collier, No. 08-0495/NA 

22

the importance of the witness’ testimony in the 

prosecution’s case, whether the testimony was 

cumulative, the presence or absence of evidence 

corroborating or contradicting the testimony of the 

witness on material points, the extent of crossexamination otherwise permitted, and, of course, the 

overall strength of the prosecution’s case. 

475 U.S. at 684. 

At trial, Appellant’s strategy was to discredit HM2 C’s 

testimony through the use of bias evidence. The main theory 

offered to defend against the larceny charges was that HM2 C 

framed Appellant for the theft of the tools by buying and 

etching tools to look like they came from the squadron. Due to 

the military judge’s limitation on cross-examination of HM2 C, 

defense counsel was able to offer only the end of a friendship 

as motivation for the framing. If there had been no such 

limitation, and depending on the evidence introduced at trial, 

defense counsel could have argued that HM2 C’s distress over the 

breakup of her romantic relationship with Appellant inspired her 

to frame Appellant. In addition, defense counsel wanted to show 

that Appellant slashed HM2 C’s tire out of anger over the 

breakup, rather than with the intent to influence testimony. 

After considering the Van Arsdall factors in relation to these 

defense strategies, we find that on balance they compel the 

conclusion that the limitation on cross-examination and related 

evidence was not harmless beyond a reasonable doubt. 
United States v. Collier, No. 08-0495/NA 

23

Obstruction charge

 On the obstruction charge, the Government had 

circumstantial evidence of motive that included the following 

facts: (1) Appellant had been informed about the pending 

larceny charges; (2) Appellant knew HM2 C had turned her in; and 

(3) the offense occurred about one month after Appellant had 

been informed the larceny charges. A civilian testified that 

Appellant admitted to her that she was the one who slashed HM2 

C’s tire. Because HM2 C was one of only two witnesses on the 

influencing testimony charge, any additional damage to HM2 C’s 

credibility could have been very significant to the outcome of 

the case. The other witness was the civilian police officer in 

charge of the investigation, but her testimony only established 

the fact that Appellant admitted slashing the tire. The 

detective testified that she did not discuss the impending 

court-martial with HM2 C and therefore did not establish the 

motive necessary to prove obstruction of justice. When defense 

counsel was prevented from trying to elicit evidence of a 

romantic or sexual relationship between Appellant and HM2 C, 

Appellant lost her best chance at showing the tire slashing was 

motivated by anger over the end of that relationship, rather 

than an attempt to influence testimony. 
United States v. Collier, No. 08-0495/NA 

24

Larceny Charge

 To assess the strength of the Government’s case on the 

larceny charge, we must take into account the presence of the 

following corroborating evidence. Many, although by no means 

all, of the tools HM2 C returned to Appellant’s command had the 

helicopter squadron’s markings etched on them. There was 

testimony that all of the recovered tools were ones that the 

squadron typically kept in stock, and that some of them were 

specialized to aircraft. One of the bags of tools returned to 

the squadron also contained personal papers belonging to 

Appellant. In addition, one of Appellant’s coworkers testified 

that he once saw her struggling to remove a heavy bag of unknown 

contents from the squadron. 

 On the other hand, the larceny case was based on 

circumstantial evidence: Appellant did not confess; no one saw 

or claimed to see her actually take the tools; and no 

fingerprint evidence was presented. Although a Government 

witness testified he saw Appellant removing a heavy bag from the 

squadron, there was also testimony from a defense witness that 

Appellant stored heavy ratings manuals in a duffel bag in their 

shared locker. Some of the physical evidence presented 

supported Appellant’s theory of the case: all of the tools 

appeared to be new, and some were still in their original 

packaging. Although some tools were etched, an etcher was found 
United States v. Collier, No. 08-0495/NA 

25

with the tools, which supports Appellant’s theory that HM2 C 

bought the tools herself and etched them. Testimony at trial 

established that the command code, either “B10” or “B1,” was 

marked by hand on the tool itself. Because this code was a 

simple marking, anyone who knew it could have etched it into the 

tools. Testimony also established that many, if not all, of the 

tools could have been purchased at a retail store such as Sears. 

Finally, HM2 C was a principal prosecution witness and, as the 

person who found the tools, her testimony was crucial to the 

case. The case was initiated solely by HM2 C’s report; 

otherwise, no one at HC-8 had noticed that any tools were 

missing, and no inventory list showed any missing tools. 

 Looking at the extent of cross-examination otherwise 

permitted, none was specifically allowed on the romantic or 

sexual nature of the relationship. This favors Appellant, 

unless there was “effective cross-examination without the use of 

the excluded evidence.” Williams, 40 M.J. at 219. Defense 

counsel was permitted to ask HM2 C about several things that 

could have indicated she had a motive to lie about the tools, 

including: HM2 C’s concern that Appellant had a crush on her; 

situations in which Appellant contributed to tensions between 

HM2 C and her boyfriend or between HM2 C and her daughter; and 

HM2 C’s unsuccessful attempt to take out a restraining order on 

Appellant. As we have previously emphasized, however, there is 
United States v. Collier, No. 08-0495/NA 

26

a qualitative difference between the cross-examination permitted 

by the military judge and the prohibited inquiry into a failed 

romantic, sexual relationship. When Appellant was refused 

permission to delve into the motive to lie that would arise from 

that kind of experience, she was deprived of her best chance to 

show the members that HM2 C was biased to the extent that she 

would fabricate the story about the tools or frame Appellant. 

Adding insult to injury, the Government exploited the very 

evidentiary limitation it requested in closing argument. “Are 

we supposed to believe that [HM2 C] or somebody else went out 

and spent $2,700.00 on tools to set this up because she’s mad at 

somebody? That strains all logic; it’s just not credible.” 

Transcript of Record at 620, Collier, No. 08-0495. Even if it 

would seem incredible for an ex-friend to concoct this type of 

revenge, it would not strain all logic to imagine that an exlover would do so. The cross-examination that was prohibited 

“may have tipped the credibility balance in Appellant’s favor.” 

Moss, 63 M.J. at 239. That we find this could have tipped the 

balance does not mean it will, or even should, do so at a 

rehearing. But ultimately, that is for the finders of fact to 

determine, not this Court. 

III. Decision

 Under all the circumstances, and particularly in light of 

the Government’s closing argument, we cannot say that the error 
United States v. Collier, No. 08-0495/NA 

27

was “unimportant in relation to everything else the jury 

considered,” and therefore, there is a reasonable possibility it 

contributed to the verdict and it was not harmless beyond a 

reasonable doubt. Othuru, 65 M.J. at 377 (citation and 

quotation marks omitted). The decision of the United States 

Navy-Marine Corps Court of Criminal Appeals is reversed. The 

findings of guilty to both the charges and specifications and 

the sentence are set aside and a rehearing is authorized. 
United States v. Collier, No. 08-0495/NA 

 BAKER, Judge (dissenting): 

This Court reviews a military judge’s decision on the 

admissibility of evidence under an abuse of discretion standard. 

United States v. Collier, __ M.J. __ (13) (C.A.A.F. 2009). In 

this case, the military judge made a reasonable decision to 

exclude the evidence of Appellant’s alleged sexual relationship 

with HM2 C, certainly a decision that was within his discretion. 

This Court should not reverse that decision because it would 

have reached a different result. 

DISCUSSION 

“To reverse for an abuse of discretion involves far more 

than a difference . . . in opinion. . . . The challenged action 

must [be] . . . clearly unreasonable, or clearly erroneous in 

order to be invalidated on appeal.” United States v. Travers, 

25 M.J. 61, 62 (C.M.A. 1987) (citations and quotation marks 

omitted) (brackets added; ellipses in original). The military 

judge conducted a Military Rule of Evidence (M.R.E.) 403 

balancing test, which he articulated on the record, and placed 

reasonable limits on the manner in which Appellant could seek to 

impeach HM2 C’s testimony based on their alleged sexual 

relationship. 

A. Deference

The majority concludes that we should “accord the military 

judge’s ruling less deference” because he failed to articulate 
United States v. Collier, No. 08-0495/NA 

2

his analysis on the record. Collier, __ M.J. at __ (14). A 

military judge is only required to “record his balancing 

analysis to the extent that his exercise of discretion may be 

fairly reviewed on appeal.” Government of the Virgin Islands v. 

Archibald, 987 F.2d 180, 186 (3d Cir. 1993) (citation and 

quotation marks omitted). In my view, the military judge’s 

articulation makes it clear how and why he determined that 

evidence of an alleged sexual relationship was not legally 

relevant to bias and why the M.R.E. 403 and M.R.E. 611 

considerations outweighed any potential factual relevance. The 

military judge cited the parties’ arguments to explore, on the 

one hand, the probative value of the evidence, and, on the other 

hand, the risk of prejudice, confusion, and waste of time. The 

record reflects that the military judge conducted a “proper 

balancing test” under M.R.E. 403, and this Court should give the 

appropriate deference to his ruling. United States v. Manns, 54 

M.J. 164, 166 (C.A.A.F. 2000). 

B. M.R.E. 403 

Based on his analysis, the military judge found that the 

probative value of an alleged homosexual relationship to show 

HM2 C’s bias was “substantially outweighed by the danger of 

unfair prejudice, confusion of the issues” and “waste of time.” 

M.R.E. 403. This conclusion was based, inter alia, on the 

disputed nature of Appellant and HM2 C’s relationship. 
United States v. Collier, No. 08-0495/NA 

3

Appellant’s proffer consisted of her statement to the military 

judge that the relationship was sexual. Although defense 

counsel offered no further detail or tangible evidence of a 

sexual relationship, defense counsel stated that, “there are two 

other witnesses that we could call that would provide extrinsic 

evidence that would go to her bias.”1

 However, as defense 

counsel acknowledged, HM2 C denied that the relationship was 

sexual. So did HM2 C’s daughter, who filed an affidavit stating 

that the relationship was based on friendship and “nothing 

more.” 

Based on the information presented during the Article 

39(a), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 

839(a) (2000), session and in the parties’ briefs on the Motion 

for Appropriate Relief, the military judge reached the following 

findings and conclusions: 

• “The defense has met their preliminary burden that the 

break-up of the relationship between this key witness and 

the accused may relate to motive by the witness to make 

the false allegation of larceny of military property.”2

 

1

 One of these witnesses was the detective who investigated the 

case. 

2

 Findings and Ruling on Government Motion In Limine at 2, United 

States v. Collier, Special Court-Martial, Tidewater Judicial 

Circuit (Nov. 24, 2004). 
United States v. Collier, No. 08-0495/NA 

4

• “The government presented evidence by cross-examination 

of the accused and by affidavit that tends to refute any 

sexual aspect to the relationship.”3

• “[T]he sexual nature of this relationship is not 

sufficiently relevant.”4

The military judge noted, “under [M.R.E] 403, . . . there’s a 

danger that there’s going to be a confusion of the issues 

because what the trial may deteriorate into is a trial within a 

trial as to whether or not there was a sexual relationship.” In 

this case, the risk was well-founded, as would be the case 

regardless of the nature of the evidence offered, not less so 

because of the sensitive nature of this information. Indeed, 

this raised the specter that HM2 C would be put “on trial” in 

addition to the accused. 

Further, the military judge looked to M.R.E. 611 “to 

control the scope and mode of witness interrogation, to prevent 

the harassment of witnesses.” Questions regarding a homosexual 

relationship not only had the risk of embarrassing HM2 C, they 

carried the potential risk of investigation and separation under 

the military’s “Don’t Ask, Don’t Tell” policy. 10 U.S.C. § 

654(b)(1) (2000). 

 

3

 Id. at 1. 

4

 Id. at 2.
United States v. Collier, No. 08-0495/NA 

5

Thus, the military judge properly identified the risks 

associated with permitting testimony regarding a sexual 

relationship, most of which would exist whether the information 

pertained to a heterosexual or homosexual relationship. The 

military judge reasonably concluded that those risks 

substantially outweighed the probative value of the information. 

C. Reasonable Restriction 

A witness’s bias “is subject to exploration at trial, and 

is ‘always relevant as discrediting the witness and affecting 

the weight of his testimony.’” Davis v. Alaska, 415 U.S. 308, 

316 (1974) (citation omitted). However, bias evidence, like any 

evidence, is subject to reasonable restrictions “to take account 

of such factors as ‘harassment, prejudice, confusion of the 

issues, the witness’ safety, or interrogation that [would be] 

repetitive or only marginally relevant.’” Olden v. Kentucky, 

488 U.S. 227, 232 (1988) (quoting Delaware v. Van Arsdall, 475 

U.S. 673, 679 (1986)); see also Davis, 415 U.S. at 316 (“Subject 

always to the broad discretion of a trial judge to preclude 

repetitive and unduly harassing interrogation, . . . the crossexaminer has traditionally been allowed to impeach, i.e., 

discredit, the witness.”). “Generally speaking, the 

Confrontation Clause guarantees an opportunity for effective 

cross-examination, not cross-examination that is effective in 
United States v. Collier, No. 08-0495/NA 

6

whatever way, and to whatever extent, the defense might wish.” 

Delaware v. Fensterer, 474 U.S. 15, 20 (1985). 

Consistent with these constitutional dictates, the military 

judge did not adopt an all or nothing approach, as the majority 

suggests. Rather, exercising his discretion, the military judge 

balanced the factors at hand in light of the law permitting the 

defense “to explore the issue of bias and motive to 

misrepresent, under M.R.E. 608(c),” and ultimately limited the 

evidence to uncontested evidence that had less risk of prejudice 

or harassment. Specifically, the military judge allowed the 

defense to “characterize the relationship as close, personal 

and/or emotionally close,” but restricted the defense from 

“open[ing] the issue of any alleged sexual acts between the 

witness and the accused.” The military judge also permitted 

defense counsel to ask HM2 C whether she “believed [Appellant] 

had a crush on [HM2 C].” As this Court has said, “once the 

defendant has been allowed to expose a witness’s motivation in 

testifying, ‘it is of peripheral concern to the Sixth Amendment 

how much opportunity defense counsel gets to hammer that point 

home to the jury.’” United States v. Carruthers, 64 M.J. 340, 

344 (C.A.A.F. 2007) (citation omitted). 

D. Speculation About Unfair Prejudice 

Even if the military judge had meticulously articulated 

every detail of his analysis (and he came close), the majority 
United States v. Collier, No. 08-0495/NA 

7

implies that the military judge could not have reached a 

reasonable decision to exclude the evidence because any such 

decision would require speculation. See Collier, __ M.J. at __ 

(18). Presented with these facts, if the military judge could 

not reasonably speculate about “the danger of unfair prejudice, 

confusion of the issues, or misleading the members” and whether 

those considerations outweigh the probative value of evidence, 

it seems that the military judge had no discretion whatsoever. 

M.R.E. 403. 

The majority compares this case to Olden v. Kentucky, in 

which the Supreme Court held that the judge abused his 

discretion by excluding evidence of an interracial sexual 

relationship based on “[s]peculation as to the effect of jurors’ 

racial biases.” 488 U.S. at 232. However, in contrast to this 

case, the relationship at issue in Olden was uncontested. Id.

at 230. Further, while the relationship in Olden showed the 

victim’s potential motive to lie about the crime, as in this 

case, Appellant’s theory is much less plausible than that 

presented in Olden. Id. In addition to lying about the crime, 

Appellant and the majority posit that HM2 C purchased 215 tools 

(even though it is questionable whether all were publicly 

available for purchase), etched Appellant’s command code on 65 

of them, and otherwise fabricated the entire crime. Collier, __ 

M.J. at __ (24-25). Thus, under this theory, after exposing 
United States v. Collier, No. 08-0495/NA 

8

herself to perjury charges, revealing an illicit sexual 

relationship, and risking separation from the service, HM2 C 

would have her revenge. This theory, of course, also 

presupposes that the Navy, having received the store-bought 

tools, negligently concluded that the tools were government 

property or wittingly joined in HM2 C’s conspiracy. 

Additionally, the majority argues that the suggestion of a 

sexual relationship would have made it more likely that 

Appellant slashed HM2 C’s tires out of anger, rather than to 

interfere with the key witness against her. Id. at __ (23). 

Here too, rather than speculating about how the members might 

apply this information, the military judge’s well-balanced 

decision permitted the members to draw their own reasonable 

conclusions regarding the animosity between Appellant and HM2 C. 

The members heard that HM2 C and Appellant had a falling out, 

HM2 C attempted to obtain a restraining order against Appellant, 

and that, just prior to the tire slashing incident, they had 

argued about HM2 C returning Appellant’s property to her. It is 

doubtful that an additional suggestion, disputed and refuted, of 

a sexual relationship between Appellant and HM2 C would have 

caused the members to reach a different verdict. 

It equally “strains all logic” to suggest that an angry, 

vengeful lover would go to such extremes, but that an “angry, 

vengeful friend” would not. Id. at __ (2). To be sure, it is a 
United States v. Collier, No. 08-0495/NA 

9

leap in logic to conclude that a sexual relationship would drive 

someone to do all this in a way that the disintegration of a 

relationship that was “emotionally close” and “closer than 

ordinary friends” would not. It also thoroughly discounts the 

sophistication of military members to identify and assess the 

myriad ways in which relationships are formed and broken and the 

hurt that results. Therefore, the military judge reasonably 

concluded that information about the alleged sexual nature of 

Appellant’s and HM2 C’s relationship, above and beyond what the 

military judge actually admitted, was “not sufficiently 

relevant.” 

CONCLUSION 

Limiting defense questioning about a witness’s sexual life 

absent a valid showing of proof and legal relevance is a 

reasonable limitation on an accused’s right to present a defense 

and confront a witness. The military judge properly used his 

discretion to allow Appellant to identify HM2 C’s potential bias 

while limiting it to avoid prejudice, confusion, waste of time, 

and harassment of the witness. 

 As a result, like the United States Navy-Marine Corps Court 

of Criminal Appeals, I would conclude that the military judge 

did not abuse his discretion by excluding evidence of an alleged 

sexual relationship between HM2 C and Appellant. United States 

v. Collier, No. NMCCA 200601218, 2008 CCA LEXIS 53, at *11, 2008 
United States v. Collier, No. 08-0495/NA 

10

WL 495700, at *4 (N-M. Ct. Crim. App. Feb. 21, 2008) 

(unpublished). I respectfully dissent.