United States v. Specialist CHISTOPHER J. MATTHEWS (2d Corrected Copy) ( 2008 )


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  •                               2D CORRECTED COPY
    UNITED STATES ARMY COURT OF CRIMINAL APPEALS
    Before
    SCHENCK, ZOLPER, and WALBURN
    Appellate Military Judges
    UNITED STATES, Appellee
    v.
    Specialist CHRISTOPHER* J. MATTHEWS
    United States Army, Appellant
    ARMY 20030404
    Headquarters, 25th Infantry Division (Light) and U.S. Army, Hawaii
    Theodore E. Dixon, Military Judge (Trial)
    Richard J. Anderson, Military Judge (DuBay Hearing)
    Colonel Gregory O. Block, Staff Judge Advocate
    For Appellant: Captain Danyele M. Jordan, JA; Mr. Earle** A. Partington, Esq. (on
    brief).
    For Appellee: Colonel John W. Miller, JA; Lieutenant Colonel Michele B. Shields,
    JA; Major Paul T. Cygnarowicz, JA; Captain Mason S. Weiss, JA (on brief).
    21 May 2008
    ------------------------------------
    OPINION OF THE COURT
    -------------------------------------
    ZOLPER, Senior Judge:
    On 11 April 2003, a military judge sitting as a general court-martial convicted
    appellant, pursuant to his pleas, of wrongful use of cocaine (two specifications) in
    violation of Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 912a
    [hereinafter UCMJ] and, contrary to his pleas, of assault upon a noncommissioned
    officer in which grievous bodily harm was intentionally inflicted in violation of
    Article 128, UCMJ. The convening authority approved the adjudged sentence to a
    bad-conduct discharge, confinement for eleven months, forfeiture of all pay and
    allowances, and reduction to Private E1. This case is before the court for review
    under Article 66, UCMJ.
    Appellate defense counsel assert, inter alia, the military judge erred by
    allowing trial counsel to comment upon the defense witness Private (PVT) James
    *Corrected
    **Corrected
    MATTHEWS – ARMY 20030404
    Gibson’s 1 invocation of his Fifth Amendment privilege against self-incrimination,
    and thereafter, improperly drawing an adverse inference based on those comments.
    We hold that the military judge erred by applying Military Rule of Evidence
    [hereinafter Mil. R. Evid.] 512 (applicable to privileged communications) and agree
    that he improperly drew an adverse inference from the witness’s invocation of his
    Fifth Amendment protection. The military judge should have applied Mil. R. Evid.
    301 (regarding protection against self-incrimination), and considered trial counsel’s
    request to have the witness’s testimony stricken from the record. We find, however,
    the evidence of guilt overwhelming and any error harmless beyond a reasonable
    doubt.
    FACTS
    Appellant and his wife, Laurel Matthews, lived in on-post housing at
    Schofield Barracks, Hawaii. Sergeant (SGT) Brian Freeman knew appellant and
    Laurel from their previous assignments at Fort Stewart, Georgia. When SGT
    Freeman reported to Schofield Barracks, he renewed the friendship and visited them
    in their quarters several times. On the date of the charged offenses, SGT Freeman
    came to the Matthews’ home to pick up his ex-girlfriend’s daughter (Ashley), whom
    Laurel was babysitting. Sergeant Freeman arrived with his friend, Specialist (SPC)
    Jennifer McBurney, picked up Ashley, and went to the mall. When SGT Freeman
    returned to the Matthews’ home later in the day, Laurel told him appellant wanted to
    talk with him inside. Laurel stepped outside with Ashley while SPC McBurney
    waited in appellant’s car.
    Upon entering the house, SGT Freeman noticed there were two other men in
    the kitchen; both were wearing battle dress uniforms without name tags. Although
    he did not know their identities at the time, they were [then] SSG James Gibson and
    Private First Class (PFC) Pedro Lozada III. Appellant began questioning SGT
    Freeman in the living room about whether SGT Freeman was facilitating Laurel’s
    affair with another soldier. Appellant continued to question SGT Freeman, directed
    SGT Freeman to get Laurel from outside, and then continued to question both of
    them. Sergeant Freeman denied knowledge of an affair.
    Appellant then pulled out a handgun from under the couch in the living room
    and inserted a loaded magazine. As SGT Freeman became frightened and turned to
    1
    Private James Gibson was a staff sergeant (SSG) at the time the offenses were
    committed. Following UCMJ action prior to appellant’s trial, he was reduced in
    rank from staff sergeant to private.
    2
    MATTHEWS – ARMY 20030404
    run through the kitchen, SSG Gibson and PFC Lozada grabbed SGT Freeman and
    pushed him back into the living room. Appellant then pistol whipped SGT Freeman
    from behind, and SGT Freeman heard what he believed to be a gunshot. 2 Two of
    appellant’s neighbors also heard a gunshot. Sitting in appellant’s car, SPC
    McBurney viewed the assault through the front window of the house. While SGT
    Freeman was on the floor with his head bleeding, appellant held the handgun to his
    head. With PFC Lozada and SSG Gibson beside him, appellant continued to threaten
    SGT Freeman and demanded he tell him what he knew of Laurel’s infidelities.
    Hearing the sirens of approaching military police (MP), appellant told SGT Freeman
    to hide in the bathroom. Sergeant Freeman did so for a few moments but fled the
    house at the first opportunity. As SPC McBurney entered the house, she observed
    SGT Freeman run out, and appellant mopping blood off the floor. She heard
    appellant say he wished “it hadn’t happened.” Specialist McBurney then left the
    house and reported the incident to the MPs as they arrived. When the MPs entered
    the home, appellant told them there was nothing going on and that he and his wife
    had a little argument.
    Trial
    During the contested portion of his trial, appellant called PVT James Gibson
    as a witness. 3 Private Gibson testified favorably for appellant. During cross-
    examination, trial counsel asked PVT Gibson a series of questions, which could have
    elicited potentially inculpatory and self-incriminating responses. The questions
    pertained to PVT Gibson’s previous misconduct were unrelated to the offenses
    underlying appellant’s trial. 4 Private Gibson refused to answer these questions and
    2
    Appellant was acquitted of negligently discharging a firearm and wrongfully
    communicating a threat to SGT Freeman, in violation of Article 134, UCMJ.
    3
    Private Gibson testified under a limited grant of immunity for offenses resulting
    from his participation in the events for which appellant was charged. In accordance
    with Rule for Courts-Martial [hereinafter R.C.M.] 704, PVT Gibson was protected
    from subsequent prosecution for any of his statements regarding his involvement in
    the incident with the appellant; however, the military judge noted that, in this case, a
    more encompassing grant of immunity might have helped avoid his subsequent need
    to invoke his Fifth Amendment privilege against self-incrimination.
    4
    Trial counsel’s questions during cross-examination revealed the following: (1) the
    government accused PVT Gibson of falsifying an academic transcript and altering a
    physical fitness scorecard to enhance his promotion packet, which he submitted to
    the staff sergeant promotion board; (2) thereafter, charges were preferred against
    (continued . . .)
    3
    MATTHEWS – ARMY 20030404
    invoked his Fifth Amendment privilege against self-incrimination thirteen times by
    stating, “I’ll take the Fifth Amendment.”
    Based upon PVT Gibson’s invocation, trial counsel requested to have him
    excused and his testimony stricken from the record. Although trial counsel asserted
    that she could not conduct a meaningful cross-examination of PVT Gibson, the
    military judge summarily denied the request. Despite PVT Gibson’s repeated
    invocation of his Fifth Amendment privilege—matched by as many objections from
    civilian defense counsel—the military judge allowed trial counsel to continue with
    her line of questioning.
    The military judge also permitted trial counsel to comment on PVT Gibson’s
    invocation of his Fifth Amendment privilege against self-incrimination during her
    rebuttal argument on findings. During rebuttal, the following colloquy ensued
    between the military judge, trial counsel, and civilian defense counsel:
    TC: Referring back to Gibson. If you have to testify
    under a grant of immunity, and you still have to invoke
    your rights----
    CDC: Objection. I don’t believe the court may properly
    draw [an] inference [based] on Gibson’s invocation of his
    rights. I think it’s forbidden. Isn’t it under [Mil. R. Evid.]
    608?
    MJ: Not that I’m aware of, sir.
    CDC: I believe it’s certainly forbidden under the Fifth
    Amendment.
    MJ: If it was relating to the accused, you would be
    correct. As it relates to a witness, I know of no law that
    says that.
    CDC: I believe that is the law, Your Honor, but I admit, I
    cannot give you a citation at this time.
    (. . . continued)
    PVT Gibson; and (3) as a result, PVT Gibson submitted a request for discharge in
    lieu of court-martial which the convening authority approved.
    4
    MATTHEWS – ARMY 20030404
    MJ: You may proceed.
    TC: Thank you. If you have to testify under a grant of
    immunity and still invoke your Fifth Amendment rights,
    especially with regards for your character for truthfulness,
    you probably shouldn’t be believed. . . . The government
    still wonders why he had to invoke his right in the
    beginning.
    Although civilian defense counsel objected to trial counsel’s comments, the military
    judge subsequently ruled that such comments were permissible based on the
    “interests of justice” exception to Mil. R. Evid. 512(a)(2).
    After the military judge announced his findings on the record, he made the
    following additional comments:
    MJ: For purposes of any appellate review of this case for
    factual sufficiency, the court had the opportunity to
    evaluate the credibility of each witness and considered
    each witness’s ability to observe and accurately remember,
    sincerity, conduct in court, friendships, prejudices, and
    character for truthfulness. The court also considered the
    extent to which each witness was supported or contradicted
    by other evidence, the relationship each witness had with
    the other side, and how each witness might be affected by
    the verdict.
    In weighing a discrepancy by a witness and between
    witnesses, the court considered whether it resulted from an
    innocent mistake or a deliberate lie.
    After taking all these matters into account, the court
    then considered the probability of each witness’s
    testimony, and the inclination of each witness to tell the
    truth. Based on the foregoing, the court finds beyond a
    reasonable doubt that Private Lozada, Private Gibson, and
    Mrs. Matthews were untruthful in their testimony. The
    court further finds that these witnesses had every
    opportunity to, and did, collaborate to falsely testify in
    this case, motivated by obvious individual self-interest.
    Conversely, using the same standard, the court
    found Specialist McBurney credible and her testimony
    5
    MATTHEWS – ARMY 20030404
    truthful in all critical respects to the court’s finding,
    relating to Charge I and [its] Specification.
    DuBay 5 Hearing
    On 14 July 2006, this court ordered a DuBay hearing. On 8 September 2006,
    the DuBay judge published extensive findings of fact and conclusions of law. In
    pertinent part, we summarize as follows:
    (1) The military judge did not abuse his discretion by allowing the assistant
    trial counsel to comment on PVT Gibson’s invocation of the privilege against self-
    incrimination in her rebuttal argument on findings.
    (2) The military judge properly applied the “best interests of justice”
    exception to MRE 512(a)(2).
    (3) The military judge did draw an adverse inference, that PVT Gibson was
    less credible, from PVT Gibson’s invocation.
    (4) The military judge made an ex parte off-the-record comment to civilian
    defense counsel and military defense counsel that he had considered PVT Gibson’s
    invocation of the privilege in determining PVT Gibson’s credibility. 6
    (5) The military judge, however, gave no weight to this inference,
    concluding, before he considered the inference, that PVT Gibson was not credible.
    (6) The trial defense counsel did not raise any assertion of legal error in
    R.C.M. 1105 matters because trial defense counsel determined that there was no
    prejudicial error.
    5
    United States v. DuBay, 
    17 U.S.C.M.A. 147
    , 
    37 C.M.R. 411
     (1967).
    6
    Members of the judiciary should remember the importance of remaining ever
    vigilant in avoiding unnecessary ex parte communications. “An ex parte
    communication which gives the appearance of granting undue advantage to one party
    over the other cannot be condoned . . . indeed, we have cautioned that the
    appearance of impropriety is to be avoided at all costs.” United States v. Alis, 
    47 M.J. 817
    , 824 (A.F. Ct. Crim. App. 1998); see also United States v. Quintanilla, 
    56 M.J. 37
     (C.A.A.F. 2001) (finding ex parte communications prejudiced appellant).
    6
    MATTHEWS – ARMY 20030404
    (7) The military judge committed no error and there was no prejudice to
    appellant.
    LAW
    Standard of Review
    “We review de novo the question whether an error was harmless . . . . The
    test for [C]onstitutional error is whether the error was harmless beyond a reasonable
    doubt . . . . The test for nonconstitutional error is ‘whether the error itself had
    substantial influence’ on the findings.” United States v. Walker, 
    57 M.J. 174
    , 178
    (C.A.A.F. 2002). Typically, situations involving the application of Mil. R. Evid.
    301 rise to a Constitutional magnitude. 7 Without making a determination regarding
    the due process concerns in the present case, and out of an abundance of caution, we
    will evaluate whether any error was harmless beyond a reasonable doubt. United
    States v. Brewer, 
    61 M.J. 425
    , 431 (C.A.A.F. 2005).
    Military Rules of Evidence 301 and 512
    Although both the military trial judge and the DuBay judge applied Mil. R.
    Evid. 512, the proper rule regarding PVT Gibson’s invocation of his Fifth
    Amendment privilege against self-incrimination while testifying is Mil. R. Evid. 301.
    Long standing canons of statutory construction require that when a specific statute
    exists on point, it is controlling. See Robertson v. Seattle Audobon Society, 
    503 U.S. 429
    , 440 (1992). In the present case, the specific, and therefore controlling, statute
    is Mil. R. Evid. 301, even though Mil. R. Evid. 512 does provide some general
    guidance regarding Constitutional privileges of witnesses. See Manual for Courts-
    Martial, United States, Analysis of the Military Rules of Evidence app. 22 at A22-37
    (2002 ed.). In light of this confusion, we will clarify the distinct roles of these two
    evidentiary rules.
    7
    See United States v. Moore, 
    36 M.J. 329
    , 336 (C.M.A. 1993); United States v.
    Phaneuf, 
    10 M.J. 831
     (A.C.M.R. 1981). It is important to note whose Constitutional
    interests are potentially at issue when applying Mil. R. Evid. 301. When a nonparty
    witness invokes his Fifth Amendment protections against self-incrimination, the
    court is not concerned with protecting the Constitutional rights of the witness, but
    rather the due process rights of the accused. Moore, 36 M.J. at 334. This is because
    Mil. R. Evid. 301, when properly applied, may result in excluding testimony which
    could be considered either integral to appellant’s fundamental right to present a
    defense or, conversely, impact appellant’s right to confront witnesses against him.
    See Phaneuf, 10 M.J. at 834 (citing Washington v. Texas, 
    388 U.S. 14
    , 19 (1967)).
    7
    MATTHEWS – ARMY 20030404
    Military Rule of Evidence 301 applies when a defense or government witness
    invokes his Fifth Amendment privilege against self-incrimination during the course
    of his testimony. See Mil. R. Evid. 301. 8 Military Rule of Evidence 512 provides
    guidance to the military judge and counsel when a witness refuses to testify
    regarding privileged information. See Mil. R. Evid. 512.
    Military Rule of Evidence 301
    Military Rule of Evidence 301(f) provides:
    (1) Generally. The fact that a witness has asserted the
    privilege against self-incrimination in refusing to answer a
    question cannot be considered as raising any inference
    unfavorable to either the accused or the government.
    (2) On cross-examination. If a witness asserts the
    privilege against self-incrimination on cross-examination,
    the military judge, upon motion, may strike the direct
    testimony of the witness in whole or in part, unless the
    matters to which the witness refuses to testify are purely
    collateral.
    Purely collateral matters are those issues which tend to involve
    evidence of minimal importance (usually dealing with a
    rather distant fact solicited for impeachment purposes) . . . .
    The drafters caution, however, that “where the privilege
    reaches the core of the direct testimony or prevents a full
    inquiry into the credibility of the witness, . . . striking of
    the direct testimony would appear mandated.”
    Moore, 36 M.J. at 335-336 (citations omitted); see also United States v. Richardson,
    
    15 M.J. 41
    , 47 (C.M.A. 1983) (finding the military judge erred in striking the
    testimony of a defense witness when the subject of cross-examination was purely
    collateral, as it did not involve either issues germane to the accused’s trial or matters
    of trustworthiness and credibility). “And as long as the subject matter of the cross-
    8
    See also Phaneuf, 10 M.J. at 835. In Phaneuf, a defense witness invoked her Fifth
    Amendment privilege against self-incrimination while testifying during sentencing.
    The court determined striking her testimony prejudiced appellant; however, because
    remand was impracticable, the court reassessed the sentence. Id.
    8
    MATTHEWS – ARMY 20030404
    examination is germane to the direct examination or relates to the witness’s
    credibility, cross-examination may extend to areas of self-incrimination.”
    Richardson, 15 M.J. at 44. Courts have consistently held credibility issues are not
    collateral matters for either party, but rather key concerns of the truth seeking
    process. 9
    Once the military judge has determined the subject matter is not purely
    collateral, the rule permits him to strike the testimony of that witness, in whole or
    part, after careful consideration of “what if any remedy is necessary to achieve
    fairness and justice through the adversary system.” 10 Moore, 36 M.J. at 334; see
    9
    Cross-examination is the principal means by which the
    believability of a witness and the truth of his testimony
    are tested . . . . [United States v. Nobles, 
    422 U.S. 225
    (C.M.A. 1975)] makes clear that, like an accused, the
    prosecution is entitled to have a criminal case decided on
    the basis of trustworthy evidence. Therefore, if cross-
    examination helps to assure the trustworthiness of a
    witness’s testimony, the [g]overnment should have the
    same opportunity to cross-examine defense witnesses that
    an accused enjoys with respect to prosecution witnesses.
    To allow an accused to offer evidence from witnesses
    whose veracity and powers of observation could not be
    tested adequately by cross-examination would grant him a
    privilege to mislead the trier of fact.
    Richardson, 15 M.J. at 46 (internal citations omitted).
    10
    If testimony of a witness is stricken, either in whole or in part, an accused’s due
    process rights may be directly affected, making the decision one of Constitutional
    dimension. Phaneuf, 10 M.J. at 834. However, an accused’s due process rights are
    not unfettered. As our superior court reiterated in United States v. Hill, 
    18 M.J. 459
    ,
    462 (C.M.A. 1984) (quoting Nobles, 
    422 U.S. at 241
    ), the “Sixth Amendment does
    not confer the right to present testimony free from the legitimate demands of the
    adversarial system; one cannot invoke the Sixth Amendment as a justification for
    presenting what might have been a half-truth.” Therefore, merely because applying
    Mil. R. Evid. 301 might result in a limitation on an accused’s due process rights it is
    not necessarily an unconstitutional remedy. Id.; Richardson, 15 M.J. at 46. “From
    the proposition that the [g]overnment and the defense should have equal access to
    evidence, the Court proceeded to the conclusion that neither party should be allowed
    (continued . . .)
    9
    MATTHEWS – ARMY 20030404
    Nobles, 
    422 U.S. at 231
     (“To ensure that justice is done, it is imperative to the
    function of courts that compulsory process be available for the production of
    evidence needed by either the prosecution or by the defense.”). A careful balance
    must be struck. When such testimony is offered by the defense, and potentially
    subject to complete exclusion under the rule, the Constitutional right of an accused
    to present witnesses in his defense is challenged. Phaneuf, 10 M.J. at 834;
    Moore, 36 M.J. at 336. Similarly, if the invocation is made by a government
    witness, and the military judge determines that striking the testimony is not
    warranted, such a decision implicates the accused’s Constitutional right to confront
    witnesses against him. United States v. Rivas, 
    3 M.J. 282
    , 285 (C.M.A. 1977). As
    the court cautioned in Moore, 36 M.J. at 336, the military judge must “approach a
    ruling with some sensitivity” to ensure the outcome fortifies the integrity of the
    judicial process.
    Military Rule of Evidence 512
    Rule for Courts-Martial 512(a)(2) provides:
    (2) The claim of privilege by a person other than the
    accused whether in the present proceeding or upon a prior
    occasion normally is not a proper subject of comment by
    the military judge or counsel for any party. An adverse
    inference may not be drawn therefrom except when
    determined by the military judge to be required by the
    interests of justice.
    The privileges relevant to the application of Mil. R. Evid. 512 include: the lawyer-
    client privilege, communications to the clergy, the husband-wife privilege, and the
    psychotherapist-patient privilege. See Mil. R. Evid. 501-512 (enumerating the
    relevant privileges for protection under Mil. R. Evid. 512). Although the invocation
    of any of the above enumerated privileges is not a proper subject for comment by any
    party during argument or rebuttal, an adverse inference can be drawn, when found to
    be in the “interests of justice.” Such a determination is made only after a careful
    balancing of the competing interests and a finding that “there is a greater need to
    protect the interests of . . . truth in criminal proceedings” than there is to protect the
    sanctity of the privilege. United States v. Custis, 
    65 M.J. 366
    , 368 (C.A.A.F. 2007).
    (. . . continued)
    to offer evidence that was misleading or untrustworthy.” Richardson, 15 M.J. at 45
    (discussing Nobles).
    10
    MATTHEWS – ARMY 20030404
    DISCUSSION
    In appellant’s case, the military judge applied the wrong rule of evidence,
    seeking guidance under the provisions of Mil. R. Evid. 512, rather than
    Mil. R. Evid. 301. Consequently, he improperly conducted an “interests of justice”
    analysis and determined it was permissible to draw an adverse inference from PVT
    Gibson’s decision to invoke his Fifth Amendment privilege against self-
    incrimination. Had the military judge properly applied Mil. R. Evid. 301, he would
    have recognized there is no “interests of justice” exception to the absolute
    prohibition against drawing any negative inferences from a witness’s decision to
    invoke his Fifth Amendment protections. See Mil. R. Evid. 301(f)(1). The only
    potential remedy available under the rules after a witness invokes his Fifth
    Amendment privilege against self-incrimination is a determination of whether to
    grant a request to strike some or all of that witness’s testimony. Regardless of
    whether the testimony is eventually stricken, the military judge, or panel, may not
    draw any adverse inference from the witness’s decision to invoke.
    In the present case, trial counsel asked PVT Gibson several questions directly
    relating to offenses that reflected on his credibility and veracity as a witness,
    patently not collateral matters. Specifically, he was asked about altering his results
    on a physical fitness test and falsifying an academic transcript. Both these acts, if
    true, could demonstrate PVT Gibson’s character for untruthfulness, a matter which
    falls squarely within permissible, and even essential, grounds for cross-examination.
    Private Gibson repeatedly invoked his Fifth Amendment privilege against self-
    incrimination during this cross-examination. He did not, however, invoke any of the
    privileges enumerated in the relevant portions of the Military Rules of Evidence and
    protected pursuant to Mil. R. Evid. 512. The military judge should have applied Mil.
    R. Evid. 301, the rule which is more specific and therefore controlling, when ruling
    on trial counsel’s request to have PVT Gibson’s testimony stricken from the record.
    United States v. Morlan, 
    24 C.M.R. 390
    , 392 (A.B.R. 1957).
    Additionally, trial counsel’s rebuttal argument specifically referenced
    PVT Gibson’s invocation. Since Mil. R. Evid. 301 prohibits drawing any adverse
    inference based upon the invocation of the witness’s Fifth Amendment privilege
    against self-incrimination, it is fair to assume that it implicitly prohibits any party
    from critically commenting on the witness’s invocation. Therefore, trial counsel’s
    comment during rebuttal was also improper.
    In sum, the military judge erred when applying Mil. R. Evid. 512, rather than
    the more specific and therefore controlling rule, Mil. R. Evid. 301. Consequently, he
    erred when he permitted trial counsel to comment during rebuttal argument on PVT
    Gibson’s invocation of his Fifth Amendment privilege against self-incrimination.
    Lastly, the military judge erred when he ruled on defense counsel’s objection to the
    11
    MATTHEWS – ARMY 20030404
    military judge drawing an adverse inference from PVT Gibson’s invocation of his
    Fifth Amendment privilege against self-incrimination. 11
    HARMLESS BEYOND A REASONABLE DOUBT
    Standard of Review
    Having decided the military judge erred, we will now determine whether such
    error was harmless beyond a reasonable doubt. See Chapman v. California,
    
    386 M.J. 18
     (1967). “[I]ssues involving possible [C]onstitutional error can be
    resolved by assuming [Constitutional] error and concluding that the error is harmless
    beyond a reasonable doubt.” United States v. Allison, 
    63 M.J. 365
    , 370
    (C.A.A.F. 2007). Therefore, it is not required that we actually find that the error
    identified was Constitutional error to apply Constitutional error analysis. 
    Id.
    Elements of the Offense
    Appellant was convicted of assault upon a noncommissioned officer in which
    grievous bodily harm was intentionally inflicted, in violation of Article 128, UCMJ.
    The elements of Article 128b(4)(b) are:
    i) that the accused assaulted a certain person;
    ii) that the grievous bodily hard was thereby inflicted
    upon such person;
    iii) that the grievous bodily harm was done with unlawful
    force or violence; and
    iv) that the accused, at the time, had the specific intent to
    inflict grievous bodily harm.
    Manual for Courts-Martial, United States (2002 ed.), Part IV, para. 54b. In the
    instant case, the government also had to prove that, at the time of the offense, the
    victim was known by the accused to be a noncommissioned officer. Therefore, to
    find the error harmless, it is necessary to determine that every element of this
    offense was proven by properly considered evidence presented at trial. See
    Richardson, 15 M.J. at 48-49.
    11
    Military judge also erred when he summarily denied trial counsel’s request to have
    PVT Gibson’s testimony stricken from the record.
    12
    MATTHEWS – ARMY 20030404
    Constitutional Error Analysis
    Following his deliberations, the military judge made several findings of fact
    on the record concerning the evidence presented at trial. Specifically, with regard to
    PVT Gibson, the military judge stated he “gave no weight to the [adverse] inference,
    concluding before he considered the inference, that PVT Gibson was not credible.”
    Additionally, the military judge made several findings regarding the other evidence
    presented. He explained how he assessed each piece of evidence and each witness’s
    testimony for importance, veracity, bias, impact, credibility, and contradiction.
    Based upon this assessment, he stated he found “beyond a reasonable doubt that . . .
    [the defense witnesses] were untruthful in their testimony” and that “[SPC]
    McBurney [was] credible in her testimony and truthful in all critical respects to the
    court’s findings, relating to Charge 1 and [its] Specification.” Furthermore, the
    military judge was able to consider the direct testimony of SPC Freeman and the
    neighbors, which corroborated the testimony of SPC McBurney. In effect, the
    military judge conducted his own version of a Van Arsdall analysis at the trial
    level. 12
    Following an order by this court, a DuBay hearing investigated the
    circumstances surrounding appellant’s assertion of error. At this hearing, the
    military judge testified concerning his analysis of PVT Gibson’s credibility as a
    witness. Again, the military judge explained that regardless of PVT Gibson’s
    decision to invoke his Fifth Amendment privilege against self-incrimination, he
    found him to be an untruthful witness, with both motive and opportunity to lie
    regarding the incident. 13 While the military judge acknowledged he drew an adverse
    12
    In United States v. Othuru, 
    65 M.J. 375
    , 378 (C.A.A.F. 2007), our superior court
    reminded us of the importance of assessing all the “host of factors” identified by the
    Supreme Court in Delaware v. Van Arsdall, 
    475 U.S. 673
    , 681 (1986), before
    concluding that a Constitutional error is harmless beyond a reasonable doubt, to
    include: “the importance of the witness’s testimony in the prosecution’s case,
    whether the testimony was cumulative, the presence or absence of corroborating or
    contradicting testimony of the witness on material points, the extent of the cross-
    examination otherwise permitted, and, of course, the overall strength of the
    prosecution’s case.”
    13
    Appellate defense counsel, in supplemental pleadings, assert the military judge
    violated the deliberative process privilege, as explained in Mil. R. Evid. 509 and
    Mil. R. Evid. 606(b), by testifying about his thought process in ruling on the Mil. R.
    Evid. 512 objection. Military Rules of Evidence 509 and 606(b) describe the
    prohibitions which exist to keep jury members from disclosing their deliberative
    (continued . . .)
    13
    MATTHEWS – ARMY 20030404
    inference, he reiterated that he gave no weight to this inference in his deliberations.
    The DuBay judge also found the military judge gave the adverse inference “no
    weight” and held there was “no prejudice to the appellant” from the improperly
    drawn inference.
    Again, without determining whether this error rose to the level of
    Constitutional error, we will apply Constitutional error analysis to ensure heightened
    protections for appellant. “To determine whether the [C]onstitutional error was
    harmless beyond a reasonable doubt we consider the whole record.” Van Arsdall,
    
    475 U.S. at 681
    . Similar to the analysis conducted by the military judge and the
    DuBay judge, we must determine the impact of the improperly drawn inference on
    the findings, balanced against the “host of factors” available upon review for
    assessing the quality of the other evidence presented at trial. 
    Id.
    A thorough review of the record reveals the adverse inference had little or no
    impact on the findings of guilt, as there was ample properly considered evidence
    demonstrating appellant’s guilt. Initially, and perhaps most importantly, the military
    judge heard the direct testimony of the victim, SGT Freeman, who described in detail
    the events of the assault. Next, the military judge heard the direct testimony of SPC
    McBurney, an eyewitness who observed most of the events through a window in the
    appellant’s house. Additionally, the government presented two of appellant’s
    neighbors, who corroborated key aspects of the eyewitness accounts. First, SGT
    Joshua Blickhahn testified he heard a gunshot-like sound just moments before seeing
    multiple people and cars leaving the appellant’s residence. This corroborated the
    timeline of events. Second, PFC Gordon Loftin testified appellant told him before
    the incident that he had “found out [his] wife was cheating on [him], and the guy is
    coming over, so if you hear a lot of noise, don’t worry about it” and that appellant
    was “going to take care of him.” These statements were properly admitted
    admissions by the appellant.
    (. . . continued)
    process, through testimony or affidavit, not judges. Appellant provides no case law
    to support the proposition that these evidentiary rules apply to a military judge’s
    deliberative processes. In fact, in United States v. McNutt, 
    62 M.J. 16
    , 20 (C.A.A.F.
    2005), our superior court held Mil. R. Evid. 606(b) “applies to court members only,
    and thus, does not apply to protect the statement[s] of the military judge. . . .”
    Additionally, the court specifically addressed the present situation, recognizing
    “there [will be] certain extraordinary situations in which a judge may be called upon
    to explain his verdict or rulings in a subsequent proceeding.” 
    Id. at 21
    . In the
    instant case, such a circumstance arose and, acting under this contingency, we
    ordered the DuBay hearing.
    14
    MATTHEWS – ARMY 20030404
    In addition to the evidence presented by the government, the military judge
    considered other evidence presented by the defense. In particular, the military judge
    heard testimony from appellant’s wife, and appellant’s friend and alleged
    accomplice, PVT Lozada, both of whom the military judge found to be untruthful
    witnesses with clear motive and opportunity to fabricate. Based upon the properly
    considered testimony presented at trial by both parties, a finding of guilty was
    clearly supported by the overwhelming weight of the evidence.
    “In the context of a particular case, certain [C]onstitutional errors, no less
    than other errors, may have been ‘harmless’ in terms of their effect on the
    factfinding process at trial.” Othuru, 65 M.J. at 377 (quoting Van Arsdall, 
    475 U.S. at 681
    ). In such cases, “[e]ven [C]onstituional error may not require reversal if
    beyond a reasonable doubt it was harmless to the accused.” Richardson, 15 M.J. at
    48. While considering all errors at the trial level, our application of the Van Arsdall
    criteria, similar to the assessments performed by the military trial and DuBay judges,
    convinces us that any errors resulting from the misapplication of Mil. R. Evid. 512
    and the adverse inference drawn by the military judge from PVT Gibson’s Fifth
    Amendment invocation were harmless beyond a reasonable doubt.
    CONCLUSION
    We have considered appellant’s remaining assignments of error, and those
    matters personally raised by appellant pursuant to United States v. Grostefon,
    
    12 M.J. 431
     (C.M.A. 1982), and find them to be without merit. Accordingly, the
    findings and sentence are affirmed.
    Senior Judge SCHENCK ∗ and Judge WALBURN concur.
    FOR THE COURT:
    FOR THE COURT:
    MALCOLM H. SQUIRES, JR.
    Clerk of Court
    ∗
    Senior Judge Schenck took final action on this case prior to her retirement.
    15
    

Document Info

Docket Number: ARMY 20030404

Judges: Schenck, Walburn, Zolper

Filed Date: 5/21/2008

Precedential Status: Precedential

Modified Date: 11/9/2024