United States v. Cuento , 2004 CAAF LEXIS 754 ( 2004 )

UNITED STATES, Appellee
v.
Alvin N. CUENTO, Aviation Structural Mechanic
Second Class
U.S. Navy, Appellant
No. 03-0389
Crim. App. No. 200100281
United States Court of Appeals for the Armed Forces
Argued April 21, 2004
Decided July 27, 2004
CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE, EFFRON, BAKER, and ERDMANN, JJ., joined.
Counsel
For Appellant: Lieutenant Rebecca S. Snyder, JAGC, USNR
(argued).
For Appellee: Lieutenant Frank L. Gatto, JAGC, USNR (argued);
Commander R. P. Taishoff, JAGC, USN (on brief); Lieutenant Ross
W. Weiland, JAGC, USNR.
Military Judge: C. R. Hunt
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Cuento, No. 03-0389/NA
Chief Judge CRAWFORD delivered the opinion of the Court.
Before a general court-martial of officers and enlisted
members, pursuant to his pleas, Appellant was convicted of
assault consummated by battery on a child under the age of 16
years, in violation of Article 128, Uniform Code of Military
Justice [hereinafter UCMJ] 10 U.S.C. § 928 (2000). Contrary to
his pleas, he was convicted of two specifications of indecent
acts with a child under the age of 16 years, in violation of
Article 134, UCMJ 10 U.S.C. § 934 (2000). The convening
authority approved the court’s sentence of a dishonorable
discharge and four years’ confinement. The Court of Criminal
Appeals affirmed the findings and sentence.1
This Court granted review of the following issues:
I.
WHETHER THE LOWER COURT ABUSED ITS DISCRETION BY
FAILING TO ORDER A DUBAY HEARING TO ASSIST IT IN
DETERMINING WHETHER THE PETITION FOR A NEW TRIAL
SHOULD BE GRANTED AND A NEW TRIAL ORDERED WHERE THE
TRIAL WAS A SWEARING CONTEST BETWEEN THE PARTIES AND
THE COMPLAINING WITNESS RECANTED HER ALLEGATIONS ON
FOUR OCCASIONS AFTER APPELLANT WAS TRIED.
II.
WHETHER APPELLANT’S CONFESSION WAS INVOLUNTARY WHEN
THE GOVERNMENT OBTAINED THE CONFESSION AFTER INFORMING
APPELLANT THAT HE WOULD NOT BE REUNITED WITH HIS
CHILDREN UNLESS HE ADMITTED THAT HE HAD SEXUALLY
MOLESTED HIS DAUGHTER, AND WHERE APPELLANT CONFESSED
1
United States v. Cuento , 58 M.J. 584 (N-M. Ct. Crim. App.
2003).
2
United States v. Cuento, No. 03-0389/NA
WITHIN DAYS OF A GOVERNMENT IMPOSED DEADLINE FOR
ADMITTING HIS GUILT AFTER MAINTAINING HIS INNOCENCE
FOR EIGHTEEN MONTHS.
III.
WHETHER THE LOWER COURT ABUSED ITS DISCRETION WHEN IT
REFUSED TO CONDUCT A PLAIN ERROR ANALYSIS AND FOUND
THAT ANY POTENTIAL ERROR WAS HARMLESS BEYOND A
REASONABLE DOUBT WHERE THE GOVERNMENT VIOLATED
APPELLANT’S SIXTH AMENDMENT RIGHT TO CONSULT WITH
COUNSEL BY ELICITING TESTIMONY THAT APPELLANT RECANTED
HIS ADMISSION ONLY AFTER CONSULTING WITH AN ATTORNEY
AND BY ARGUING TO THE MEMBERS THAT APPELLANT’S
RECANTATION WAS FALSE BECAUSE IT WAS MOTIVATED BY
APPELLANT’S CONSULTATION WITH AN ATTORNEY.
For the reasons set forth below, we affirm the decision of
the Navy-Marine Court of Criminal Appeals with respect to Issues
II and III. As to Issue I, we return the record to the court
below to order a fact-finding hearing pursuant to United States
v. DuBay,2 for the purpose of determining the credibility of J’s
post-trial recantation.
FACTS
In August 1998, following J’s allegations that Appellant
had sexually assaulted her in October 1977, Appellant was
removed from the family home and twice interviewed by the San
Diego Police. He told the police that, while play-wrestling
with J, he accidentally caught his hand in J’s underwear and
unintentionally penetrated her vagina with his finger. In
September 1999, the local District Attorney declined prosecution
2
17 C.M.A. 147, 37 C.M.R. 411 (1967).
3
United States v. Cuento, No. 03-0389/NA
and the Navy Criminal Investigative Service (NCIS) assumed
control of the investigation.
The California Child Protective Service, in coordination
with the Navy Family Advocacy Program, devised a “reunification
plan,” by which Appellant, after appropriate therapy, could
rejoin his family. Part of the therapy was for Appellant to
admit to J’s allegations. In fact, one of the rules of the
therapy group provided that any participant who did not “believe
that a molestation occurred” would not be allowed to complete
the course of therapy necessary to be reunited with his or her
family. To this end, Appellant attended group counseling
sessions with Mr. Martin, a psychotherapist, from summer 1999 to
spring 2000, and in January and February 2000. Appellant also
saw Dr. Barnes, a clinical psychologist, for individual
sessions.
Although Appellant had never admitted to the police that
J’s allegations were true, sometime in February 2000, he told
Mr. Martin that he had done what J said he had done. About a
week thereafter, at NCIS’s invitation, Appellant went to NCIS,
was advised of his rights, waived them, and gave the same
version of events he had given to civilian police; however, when
Special Agent (SA) Thomas pointedly expressed disbelief,
Appellant “broke down” and admitted that in October 1997, he had
twice put his finger in J’s vagina. After confessing, Appellant
4
United States v. Cuento, No. 03-0389/NA
expressed great relief and signed the written confession
admitted as Prosecution Exhibit 20.
Also in late February 2000, on his eighth visit to Dr.
Barnes, Appellant admitted that J’s allegations were true. At
their next meeting, Appellant offered no retraction or
contradiction, but on his tenth visit to Dr. Barnes, Appellant
said he had spoken with a lawyer, that he had been lying to Dr.
Barnes at the last two sessions, that he was afraid of going to
jail, and that he wanted to change his story.
DISCUSSION
A. Voluntariness of Appellant’s Confession.
Appellant argues that his confession to NCIS was
involuntary “because the government would not allow him to be
reunited with his children until they reached adulthood if he
did not admit his guilt before the termination of his second
group therapy cycle, which was to end only days after he
confessed.” We disagree and find Appellant’s statement was both
voluntary and independent of his statement to Mr. Martin.
Voluntariness of a confession is a question of law
that an appellate court independently reviews, de
novo. The necessary inquiry is whether the confession
is the product of an essentially free and
unconstrained choice by its maker. If, instead, the
maker’s will was overborne and his capacity for self-
determination was critically impaired, use of his
confession would offend due process. 3
3
United States v. Bubonics, 45 M.J. 93, 94-95 (C.A.A.F.
1996)(citations omitted).
5
United States v. Cuento, No. 03-0389/NA
“As this Court ruled in one of its earliest opinions, a
confession is not automatically inadmissible, even though it was
made after another confession which was clearly involuntary.
The prosecution must rebut the presumption that the later
confession was the result of the same influence which led to the
prior confession.”4
When there are multiple admissions by an accused and the
voluntariness of a second or subsequent statement is challenged
on the grounds that it is tainted by an earlier, illegally
obtained statement, we have looked to the Supreme Court for
guidance:
In Oregon v. Elstad the Supreme Court
distinguished between two classes of "involuntary"
statements and between the impact of each on a
subsequent interrogation. Where a confession is
obtained at a lawful interrogation that comes after an
earlier interrogation in which a confession was
obtained due to actual coercion, duress, or
inducement, the subsequent confession is presumptively
tainted as a product of the earlier one. On the other
hand, where the earlier confession was "involuntary"
only because the suspect had not been properly warned
of his panoply of rights to silence and to counsel,
the voluntariness of the second confession is
determined by the totality of the circumstances. The
earlier, unwarned statement is a factor in this total
picture, but it does not presumptively taint the
subsequent confession.5
4
United States v. Spaulding, 29 M.J. 156, 160 (C.M.A.
1989)(citing United States v. Monge, 1 C.M.A. 95, 2 C.M.R. 1(1952)).
5
United States v. Phillips, 32 M.J. 76, 79 (C.M.A. 1991).
6
United States v. Cuento, No. 03-0389/NA
When a prior statement is actually coerced, the time that
passes between confessions, the change in place of
interrogations, and the change in identity of the interrogators
all bear on whether that coercion has carried over into the
second confession.
Only those statements that are “actually coerced” require
application of the more stringent test generally described in
Military Rule of Evidence 304(b)(3) [hereinafter M.R.E.] , as
opposed to a showing of voluntariness by totality of the
circumstances.6
While a so-called “cleansing statement” is a factor to
consider in evaluating the voluntariness of a confession made
following a prior, unwarned statement, this Court has held that
“[w]here there are successive statements, it is not a
precondition to the admission of a properly obtained statement,
that the accused be informed that a previous statement cannot be
used against him.”7 However, “[i]f there has been an earlier
unwarned statement, ‘the absence of a ‘cleansing’ warning before
6
United States v. Benner, 57 M.J. 210 (C.A.A.F. 2002); United
States v. Steward, 31 M.J. 259, 264 (C.M.A. 1990)(citing
Spaulding, 29 M.J. at 156; United States v. Ravenel, 26 M.J. 344(C.M.A. 1988)).
7
United States v. Wimberly, 16 C.M.A. 3, 9, 36 C.M.R. 159, 165
(1966).
7
United States v. Cuento, No. 03-0389/NA
the subsequent statement’ is one of the ‘circumstances to be
considered in determining voluntariness.’”8
In determining whether Appellant’s NCIS statement was
voluntary, we will assume, arguendo, that his earlier statement
was produced by the coercive effect of the prerequisites placed
on Appellant’s reunification with his family by the California
Child Protective Service. “Evidence that was obtained as a
result of an involuntary statement may be used when the evidence
would have been obtained even if the involuntary statement had
not been made.”9 “Even evidence challenged as “derivative” from
an involuntary statement is admissible ‘if the military judge
finds by a preponderance of the evidence that’ it ‘was not
obtained by use of the statement, or that the evidence would
have been obtained even if the statement had not been made.”10
Evaluating voluntariness, attenuation, and inevitability of
Appellant’s NCIS statement, we give particular weight to the
following facts:
At the time of his NCIS statement, Appellant was 37 years
old, with over 18 years of service in the Navy. The NCIS
statement was made at the NCIS office, to which Appellant had
8
United States v. Ford, 51 M.J. at 451 (quoting United States v.
Lichtenhan, 40 M.J. 466, 470 (C.M.A. 1994)).
9
M.R.E. 304(b)(2).
10
Spaulding, 29 M.J. at 162 (citing M.R.E. 304(b)(3)).
8
United States v. Cuento, No. 03-0389/NA
been invited, but not ordered to appear. Appellant was not in
custody. Appellant’s statement to Mr. Martin was made at Mr.
Martin’s office, in the course of treatment in which Appellant
had been ordered to participate. The NCIS statement was made
about seven days after Appellant’s first admission to Mr.
Martin, with significant time for cool reflection and
consultation with an attorney.
When SA Nelson invited Appellant to come to NCIS, she
called him directly, rather than involving his command;
consequently, Appellant arrived at NCIS without escort. Neither
SA Nelson nor SA Thomas participated in Appellant’s statement to
Mr. Martin, nor were the agents aware of the “reunification
plan.” At NCIS, Appellant was oriented to his surroundings by
SA Nelson and SA Thomas, and told that he was there voluntarily
and could leave at any time.
SA Nelson advised Appellant of his rights, but did not give
a “cleansing warning.” Appellant indicated that he understood
his rights and initialed beside each on the rights waiver form.
At no time did Appellant ask for an attorney or indicate that he
wanted to leave or stop answering questions. While the NCIS
agents made reference to Appellant’s statement to civilian
police (alleging an accidental touching), no mention was made of
Appellant’s prior admission to Mr. Martin. No mention was made
of the Child Protective Service’s orders or conditions.
9
United States v. Cuento, No. 03-0389/NA
Before and during the interview, neither of the agents made
any promises, inducements, or threats. Although the agents used
no unlawful coercion, when Appellant first told his story in
accidental terms, SA Thomas told Appellant that he did not
believe him. Upon hearing this, Appellant confessed that he had
done what had been alleged. Appellant chose to have SA Nelson
write his statement, rather than Appellant writing it himself.
After rendering the confession, Appellant said he felt that
a huge burden had been lifted from his shoulders. The statement
process was very brief, lasting approximately 90 minutes.
Appellant read, made changes to, initialed, swore to, and signed
the statement.
Under the circumstances of this case, particularly the
intervening events between the first and second statements, the
Government has carried its burden of demonstrating that the
first statement did not taint the second statement, and that the
second was voluntary. The trial judge did not err in admitting
the NCIS statement over defense objection.
B. Comment on Appellant’s Right to Counsel.
During the direct examination of Dr. Barnes, the trial
counsel engaged the witness as follows:
Q: Okay. Now, when, if ever, did the accused
actually recant his version?
A: The following week, so two weeks after his
initial disclosure of molest he came in a state of
10
United States v. Cuento, No. 03-0389/NA
agitation and told me that he wanted to again change
his story.
Q: Well, let’s talk in a little bit more detail
about exactly what he told you on that date. What did
he tell you?
A. He told me several things, that he had met
with his attorney and he was told that — let me back
up.
Q. Okay.
A. I’d like to strike that, if I could. It’s
important to get the sequence of events. He told me
that he had been lying to me for the previous two
weeks and that he now wanted to set the record
straight one more time, that he reverted to the
allegation that the abuse to his daughter occurred in
an accidental fashion, as he had reported to me for
the first seven weeks of therapy.
The trial counsel asked one more innocuous question of the
witness and concluded his direct examination. We note that he
did not follow the witness’ reference to an attorney
consultation with additional questions. However, in cross-
examination, the trial defense counsel immediately did.
Q. . . . You said you met with him two weeks
later and he went back to the story he had originally
gave; that was the wrestling story, right?
A. That is correct.
Q. And you mentioned he had met with his
attorney?
A. Yes.
Q. Would that be me?
A. Yes, it would.
11
United States v. Cuento, No. 03-0389/NA
Q. Okay. And the first time you met with him
was 28 February, right?
A. That’s correct.
. . . .
Q. Okay. Would it surprise you to know, sir,
that Petty Officer Cuento did not meet with his
attorney until after [March 13th]?
A. It would only surprise me that I have the
date wrong. When he met with me and revised his
story, he had met with an attorney. It may have been
you, sir, but he had met with an attorney, at least
that’s what he reported to me at that time, and he
started expressing fear that he would be placed in the
brig. That was a new story to me on that day.
Q. Do you know of any other attorney that he’s
ever had?
A. I don’t know.
During the trial counsel’s closing argument on findings, he
made the following comments:
Members, you’ve heard from Dr. Barnes. He came
in last Friday, and he gave you a real good glimpse as
to exactly what was going on here. And if you bring
in all the other evidence that you’ve heard, it makes
perfect sense. You’ve got a man that comes into his
office on the 28th of February, four days after he
speaks with NCIS, on the 28th of February, and says,
“I’m guilty.” Another week goes by, on the 6th of
March or sometime around there, he comes back into the
office and says, “Doc, I’d like to talk with you a
little bit more about it. I’m guilty, and the reason
that I’m telling you now is because the burden is so
great.” An then another week goes by. He comes back
in, and he says, “Well, now, I’ve spoken with my
defense attorney; and now I’m – I don’t want to be
guilty anymore. I’m going to recant. No longer am I
going to say I did this.”11
11
58 M.J. at 593.
12
United States v. Cuento, No. 03-0389/NA
We need not decide whether the court below conducted a
plain error analysis, as we conclude that even if the trial
counsel erred in his examination of Dr. Barnes or his argument
suggesting that Appellant recanted after having talked with his
lawyer, any error was harmless. Because we also assume without
deciding that the alleged error was of constitutional dimension,
we conclude that any error was harmless beyond a reasonable
doubt.
The members had an opportunity to hear and personally
observe each witness and we assume that the members applied
their "common sense and [their] knowledge of human nature and of
the ways of the world."12 The defense did not object to Dr.
Barnes’ statement or to trial counsel’s argument. In this
context, we have no difficulty concluding that if there was
error, it was harmless beyond a reasonable doubt.
C. The Court of Criminal Appeals’ Failure to Order a Fact-
finding Hearing under United States v. DuBay.13
For the reasons set forth below, we return the record of
trial to the Navy-Marine Court of Criminal Appeals to order a
DuBay hearing in which a military judge will determine the
credibility of J’s recantation of her trial testimony. The
12
United States v. Rivera, 54 M.J. 489, 491 (C.A.A.F. 2001).
13
17 C.M.A. 147, 37 C.M.R. 411 (1967).
13
United States v. Cuento, No. 03-0389/NA
record of those proceedings will then be evaluated by the Court
of Criminal Appeals in determining whether to grant Appellant’s
petition for new trial.
On 10 January 2001, Mr. Douglas Brown, a civilian
attorney representing the appellant during post-trial
review, placed a telephone call to J. During a two-
minute conversation, Mr. Brown asked J if she had told
the truth or lied at trial when she testified that she
had been molested by her father. She said that she
had lied and would be willing to write a statement and
speak to Mr. Brown’s investigator. On 16 January
2001, J and her mother met with investigator Suzanne
McDaniel. In the course of a 90-minute interview,
most of which was transcribed verbatim, J recanted her
trial testimony and stated that she had lied at trial
in accusing her father of molesting her. She also
signed an affidavit to that effect.14
Article 73, UCMJ,15 permits an accused to petition for a new
trial within two years of the convening authority’s action.
Rule for Courts-Martial 1210(f) [hereinafter R.C.M.] provides as
follows:
(f) Grounds for new trial.
(1) In general. A new trial may be granted
only on grounds of newly discovered evidence or fraud
on the court-martial.
(2) Newly discovered evidence. A new trial shall
not be granted on the grounds of newly discovered
evidence unless the petition shows that:
(A) The evidence was discovered after the trial;
(B) The evidence is not such that it would
have been discovered by the petitioner at the time of
trial in the exercise of due diligence; and
(C) The newly discovered evidence, if
considered by a court-martial in the light of all
14
58 M.J. at 587-88.
15
10 U.S.C. § 873 (2000).
14
United States v. Cuento, No. 03-0389/NA
other pertinent evidence, would probably produce a
substantially more favorable result for the accused.
In United States v. Rios,16 this Court discussed the Manual
for Courts-Martial, United States (1998 ed.) new trial
provisions:
Petitions for new trial based on a witness’s
recantation “are not viewed favorably in the law.”
United States v. Giambra, 33 M.J. 331, 335 (C.M.A.
1991). They should not be granted unless “[t]he court
is reasonably well satisfied that the testimony given
by a material witness is false.” Id., quoting Larrison
v. United States, 24 F.2d 82, 87 (7th Cir. 1928).
Recantations of trial testimony are viewed by
federal courts with "extreme suspicion."
Our standard of review on petitions for new trial
is deferential. We review only for an abuse of
discretion.
In United States v. Brooks,17 we again explained the heavy
burden on petitioners and the critical role of appellate courts
in determining credibility:
When presented with a petition for new trial, the
reviewing court must make a credibility determination,
insofar as it must determine whether the “newly
discovered evidence, if considered by a court-martial
in the light of all other pertinent evidence, would
probably produce a substantially more favorable result
for the accused.” RCM 1210(f)(2)(C). The reviewing
court does not determine whether the proffered
evidence is true; nor does it determine the historical
acts. It merely decides if the evidence is
16
48 M.J. 268 (C.A.A.F. 1998), cert. denied, 525 U.S. 1156(1999)(noting the consistency between R.C.M. 1210 and Fed. R.
Crim. P. 33)(citations omitted).
17
49 M.J. 64, 69 (C.A.A.F. 1998).
15
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sufficiently believable to make a more favorable
result probable.
We find a Court of Criminal Appeals has abused its
discretion when we reach “a definite and firm conviction that
the court below committed a clear error of judgment in the
conclusion it reached upon weighing of the relevant factors.”18
This is a textbook standard and involves “more than a mere
difference of opinion.”19 After noting the standard with which
to measure Appellant’s petition for new trial and the
circumstances under which J recanted her testimony, and rather
than ordering a fact-finding hearing to assess J’s credibility,
the Court of Criminal Appeals assessed J’s credibility on the
strength of her post-trial affidavit. The court found that
Appellant had “not met his burden of showing that J’s trial
testimony was false.”20 In so doing, the Court of Criminal
Appeals noted that Appellant’s case is not a simple “swearing
contest,” being instead a case in which the victim’s trial
testimony is corroborated by Appellant’s NCIS statement and his
admissions to counselors. While those distinctions are
factually accurate as far as they go, they fail to account
adequately for Appellant’s repudiation of his prior statements,
18
United States v. Houser, 36 M.J. 392, 397 (C.M.A.
1993)(citation omitted).
19
United States v. McElhaney, 54 M.J. 120, 130 (C.A.A.F. 2000).
16
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his facially rational explanation for having made the
incriminating, but purportedly false statements, and the
potential effect that mutually corroborative denials by
Appellant and J may have at any future proceedings.
“[W]hen the alleged perjurer is the prosecutrix herself,”
we remain “disinclined” to burden Appellant with mechanical
application of a rigorous standard.21 Under the unique
circumstances of this case, including the lack of any
corroborating physical evidence, that Appellant, both before and
during trial, recanted his NCIS statement and his admissions to
Dr. Barnes and Mr. Martin, and that J’s testimony was the only
other evidence against Appellant, we find that the weight of J’s
recantation cannot adequately be measured without a DuBay
hearing before a military judge at which J would testify under
oath and be subject to cross-examination.
DECISION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed as to Issues II and III. As to
Issue I, the decision of the court is reversed and returned to
the Judge Advocate General of the Navy for submission to a
20
Cuento, 58 M.J. at 590.
21
Giambra, 33 M.J. at 335.
17
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convening authority for a DuBay hearing. Following that
hearing, the record should be returned to the Navy-Marine Corps
Court of Criminal Appeals for a determination of whether “[t]he
newly discovered evidence, if considered by a court-martial in
the light of all other pertinent evidence, would probably
produce a substantially more favorable result for the accused.”
See United States v. Brooks, 49 M.J. 64 (C.A.A.F. 1998).
18