United States v. Piren , 2015 CAAF LEXIS 50 ( 2015 )

UNITED STATES, Appellee
v.
James S. PIREN, Private First Class
U.S. Army, Appellant
No. 14-0453
Crim. App. No. 20110416
United States Court of Appeals for the Armed Forces
Argued October 8, 2014
Decided January 15, 2015
ERDMANN, J., delivered the opinion of the court, in which BAKER,
C.J., and STUCKY, RYAN, and OHLSON, JJ., joined.
Counsel
For Appellant: Captain Robert H. Meek III (argued); Colonel
Kevin M. Boyle, Lieutenant Colonel Jonathan F. Potter, and Major
Amy E. Nieman (on brief).
For Appellee: Captain Daniel H. Karna (argued); Colonel John P.
Carrell, Lieutenant Colonel James L. Varley, and Major Steven J.
Collins (on brief).
Military Judge: Wendy Daknis
This opinion is subject to revision before final publication.
United States v. Piren, No. 14-0453/AR
Judge ERDMANN delivered the opinion of the court.
Private First Class James S. Piren was charged with one
specification of aggravated sexual assault and two
specifications of abusive sexual contact, in violation of
Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 920 (2006), and one specification of assault, in violation of
Article 128, UCMJ, 10 U.S.C. § 928. Piren entered pleas of not
guilty to all charges and specifications. Following
arraignment, the military judge granted a defense motion to
dismiss one specification of abusive sexual contact and the
assault charge as being multiplicious.
A panel of officers sitting as a general court-martial
acquitted Piren of aggravated sexual assault, but found him
guilty of the remaining specification of abusive sexual contact.
The panel sentenced him to a reduction to E-1, forfeiture of all
pay and allowances, confinement for twelve months, and a bad-
conduct discharge. The convening authority credited Piren with
fifteen days of pretrial confinement and approved the remaining
sentence as adjudged. The United States Army Criminal Court of
Appeals (ACCA) summarily affirmed. United States v. Piren, No.
ARMY 20110416, slip op. at 1 (A. Ct. Crim. App. Jan. 7, 2014).
Military Rule of Evidence (M.R.E.) 611(b) provides that
“[c]ross-examination should be limited to the subject matter of
the direct examination and matters affecting the credibility of
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the witness.” We granted review to determine whether the
military judge abused her discretion when she overruled a
defense objection that the government’s cross-examination of
Piren exceeded the scope of direct examination. We also granted
review to determine whether the military judge abused her
discretion when she denied a defense motion to suppress the
results of a DNA analysis.1 We hold that the military judge did
not abuse her discretion in either instance and therefore affirm
the ACCA.
Background
While attending a Volkfest in Nuremberg, Germany, Piren
befriended SPC KW and her friends at a bar. Later that evening,
KW and her friends found Piren passed out in the street due to
his intoxication. They carried Piren back to KW’s hotel room
and placed him on the floor of the room. KW, who was also
intoxicated, decided that she would go to sleep in her bed.
KW’s friends then left the hotel room with Piren passed out on
the floor and KW sleeping in the bed.
1
We granted review of the following issues:
I. Whether the military judge abused her discretion
by overruling the defense counsel’s scope
objection during the government’s cross-
examination of Appellant; and
II. Whether the military judge erred by denying the
motion to suppress results of the DNA analysis.
United States v. Piren, 73 M.J. 355 (C.A.A.F. 2014) (order
granting review).
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At this point, Piren’s and KW’s versions of the events
diverge. KW testified that she woke up in the hotel room with
Piren kissing her stomach inches away from her vagina. She
screamed, “You’re not Zac,” kicked him, and told him to get out
of the room.2 Piren testified that he woke up at some point
during the night and KW invited him into her bed by holding out
her hand. He asserts that the two began to kiss and that KW
masturbated him for about five minutes. Piren testified that KW
then helped him remove her underwear and while he was kissing
her stomach she yelled “you’re not Zac.” At that point, Piren
testified that he realized KW had thought he was her boyfriend
and offered to explain to KW’s boyfriend what happened, but KW
told him to leave.
Piren testified that he then went to a nearby train station
where he went to sleep on a bench. He was later awoken by his
roommate, Specialist Garthwait, who was being taken into custody
by the German police. SPC Garthwait asked Piren to accompany
him to the police station. Piren followed the German police to
the station, where officers began questioning Garthwait in
connection with the incident reported by KW. Piren interrupted
the questioning and told police that he had been in a hotel room
with a girl, that they fooled around, and that she kicked him
out. He also stated that she thought he was her boyfriend. Two
2
Zac was the name of KW’s boyfriend.
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military police officers arrived at the police station and Piren
made the same statement to them.
Piren was placed in handcuffs and the military police later
took him to the Vilseck Health Clinic, where he gave his consent
to a sexual assault examination. He was examined by Lieutenant
Colonel Alumbaugh, a Sexual Assault Nurse Examiner. Prior to
trial, Piren moved to suppress all the evidence derived from the
sexual assault exam, arguing that his consent to the exam had
been involuntary. If the court found that his consent was
voluntary, Piren argued in the alternative that since he had not
received any Article 31, UCMJ, 10 U.S.C. § 831, warnings, any
statements he made to LTC Alumbaugh and all derivative evidence
from the sexual assault examination should be suppressed.
Following a hearing and arguments, the military judge held that
Piren had voluntarily consented to the sexual assault
examination. The government had agreed that any statements
Piren made to LTC Alumbaugh during the examination should be
suppressed, but specifically reserved the right to use the
statements for impeachment purposes. The military judge also
held that the results of the sexual assault examination did not
derive from any inadmissible statements Piren may have made to
LTC Alumbaugh.
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Discussion
I. Did the military judge abuse her discretion in
overruling defense counsel’s objection that the
cross-examination exceeded the scope of direct
examination?
Piren argues that the military judge abused her discretion
by allowing the government to exceed the scope of his direct
testimony and question him as to matters that were excluded
pursuant to a pretrial motion. As noted, the government did not
oppose Piren’s motion to suppress the statements he made to LTC
Alumbaugh, but reserved the right to use the statements for
impeachment purposes.
Piren chose to testify at trial and, on direct examination,
his defense counsel solicited his version of the events up to
the point he left the train station with SPC Garthwait and the
German police. During cross-examination, however, trial counsel
asked Piren about his statements to LTC Alumbaugh during the
sexual assault examination. The defense objected to this line
of questioning as being outside the scope of direct examination
since the direct examination had not chronologically proceeded
beyond what occurred at the train station. The military judge
overruled the objection. Trial counsel then asked Piren
whether, during the sexual assault examination, he had told LTC
Alumbaugh that: (1) KW kissed him, (2) KW kissed his ear, (3)
KW grabbed his penis, (4) that KW masturbated him for five
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United States v. Piren, No. 14-0453/AR
minutes. Piren responded that he had told LTC Alumbaugh all
four of the statements.
These statements were subsequently discussed by the parties
during an Article 39, UCMJ, 10 U.S.C. § 839, session.
Ultimately, the military judge determined that LTC Alumbaugh
could be recalled to impeach Piren’s testimony by contradiction.
However, she limited LTC Alumbaugh’s testimony to the four
statements that Piren testified on cross-examination he had told
LTC Alumbaugh. During redirect, LTC Alumbaugh testified that
Piren had not told her any of the four statements. Following
the presentation of evidence, the government stated that it
would be arguing impeachment by contradiction in its final
argument.
This Court reviews a military judge’s admission of the
evidence for an abuse of discretion. United States v. Dewrell,
55 M.J. 131, 136 (C.A.A.F. 2001). Under that analysis, findings
of fact are reviewed for clear error and conclusions of law are
reviewed de novo. United States v. Gallagher, 66 M.J. 250, 253
(C.A.A.F. 2008). The abuse of discretion standard is strict,
calling for the challenged action to be “arbitrary, fanciful,
clearly unreasonable, or clearly erroneous.” United States v.
McElhaney, 54 M.J. 120, 130 (C.A.A.F. 2000) (citations and
internal quotation marks omitted).
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Piren asserts that his direct testimony was chronologically
limited to events prior to his sexual assault evaluation and
that he had not testified about his statements to LTC Alumbaugh.
Piren also argues that because LTC Alumbaugh did not give him
any Article 31 warnings, any statements that he made were
inadmissible. Finally, he asserts that once this cross-
examination was erroneously allowed, the government improperly
impeached his cross-examination testimony by presenting improper
rebuttal testimony.
The government responds that Piren opened the door to his
statements to LTC Alumbaugh when he testified to his version of
events. The government further argues that it is allowed wide
leeway in the scope of cross-examination of a defendant who
takes the stand, affording it a fair response to the defendant’s
claims and to impeach credibility.
A military judge is given broad discretion to impose
reasonable limitations on cross-examination. McElhaney, 54 M.J.
at 129. However, “an accused who exercises his right to testify
takes his credibility with him to the stand, and it may be
assailed by every proper means.” United States v. Gibson, 18
C.M.R. 323, 326 (C.M.A. 1955) (citations omitted). This is
reflected in M.R.E. 611(b), which allows cross-examination into
“the subject matter of the direct examination and matters
affecting the credibility of the witness.”
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United States v. Piren, No. 14-0453/AR
When the accused takes the stand, the privilege against
self-incrimination is waived. M.R.E. 301(e). We have held
that:
[a]n accused is not required to testify in his defense
and his failure to do so may not be the basis for any
inference against him. But where he does elect to
testify, as did this appellant, his credibility may be
impeached like that of other witnesses. Hence, though
he may not be cross-examined as to his general
character, he may be so examined as to his
credibility.
United States v. Tomchek, 4 M.J. 66, 71-72 (C.M.A. 1977).
Piren’s arguments focus on the scope of the direct
examination and do not address the language in M.R.E. 611(b),
which authorizes cross-examination into “matters affecting the
credibility of the witness.” When Piren elected to testify, he
placed his credibility at issue and the government’s cross-
examination as to the statements he had made to LTC Alumbaugh
was designed to explore that credibility. The government could,
therefore, properly test Piren’s credibility on cross-
examination.
When Piren subsequently testified on cross-examination as
to what he had told LTC Alumbaugh during the sexual assault
examination, his credibility remained at issue. This opened his
testimony to impeachment by contradiction by having LTC
Alumbaugh testify to the contrary. Impeachment by contradiction
is a line of attack that “involves showing the tribunal the
contrary of a witness’ asserted fact, so as to raise an
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United States v. Piren, No. 14-0453/AR
inference of a general defective trustworthiness” or that the
accused is capable of error. United States v. Banker, 15 M.J.
207, 210-11 (C.M.A. 1983) (citations omitted).
Although Piren’s statements were unwarned, M.R.E. 304(b)(1)
specifically provides for the use of unwarned statements for
purposes of impeachment by contradiction.3 Therefore, the
military judge did not abuse her discretion in overruling the
defense objection that the government’s cross-examination
exceeded the scope of direct examination and by subsequently
allowing impeachment by contradiction.
II. Did the military judge err in denying the defense
motion to suppress the DNA evidence?
Piren’s motion to suppress the DNA evidence is based on his
assertion that his consent to the sexual assault exam was not
voluntary. Piren was transported to the clinic by military
police in handcuffs where he met Special Agent Harris, an Army
CID agent. SA Harris instructed the military police to remove
Piren’s handcuffs and asked for Piren’s consent to submit to a
sexual assault examination. Harris had started to go through
the consent form when Piren asked if he should get a lawyer. SA
Harris told Piren that he would be advised of his legal rights
when he came to the CID office later that day. Harris continued
3
Due to recent changes in the Military Rules of Evidence, the
language regarding impeachment by contradiction, previously
found in M.R.E. 304(b)(1), now appears in M.R.E. 304(e)(1). See
Exec. Order No. 13,643, 3 C.F.R. 251 (2013) (implementing 2013
amendments to the Manual for Courts-Martial (2012 ed.)).
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to read the consent form to Piren and told him where he should
place his initials and signature if he consented to the exam.
Piren completed the form, consenting to the sexual assault exam.
SA Harris testified that after Piren had signed the consent
form, he asked Piren if he was sure he wanted to do this and
that it was of his (Piren’s) own free will.4
The military judge found that: SA Harris advised Piren
that the sexual assault examination was voluntary; there was no
undue pressure; there was no unequivocal request for an
attorney, nor is one required when consenting to a search; after
the discussion with SA Harris, Piren could have stated that he
would not consent to the test until after he discussed it with a
lawyer; Piren thought he was going to be subjected to the sexual
assault examination regardless of whether he signed or not and
made a conscious choice to consent while he was at the clinic.
Balancing these factors, the military judge found that Piren had
made a conscious decision to submit to the test.
4
Piren asserted that before he signed the form, Harris told him
that either they get the test over with or he would try to
obtain permission from command. Unbeknownst to Piren, another
CID agent had already obtained search authorization from a
military magistrate which was limited to obtaining Piren’s DNA
through a blood sample. The record shows the government
preferred to use Piren’s consent to a sexual assault examination
because it would result in more than just the collection of DNA
evidence, including the use of fluorescence to detect biological
fluids, and a collection of hair, fibers, and biological swabs.
SA Harris testified that he would have used the search
authorization for the DNA if Piren refused or revoked consent to
the sexual assault exam.
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A search may be conducted “with lawful consent.” M.R.E.
314(e)(1). “Consent is a factual determination,” and a military
judge’s findings “will ‘not be disturbed on appeal unless
unsupported by the evidence or clearly erroneous.’” United
States v. Vassar, 52 M.J. 9, 12 (C.A.A.F. 1999) (citation and
internal quotation marks omitted). Courts evaluate
voluntariness with regard to consent based on the totality of
circumstances. United States v. Wallace, 66 M.J. 5, 9 (C.A.A.F.
2008) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226-27
(1973)). Where the government has prevailed on a motion to
suppress, we review the evidence in the light most favorable to
the Government. United States v. Kitts, 43 M.J. 23, 28
(C.A.A.F. 1995). Both parties rely on the six nonexclusive
factors set forth in Wallace, 66 M.J. at 9 (the Wallace factors)
to determine whether the consent was voluntary.5
(1) The degree to which liberty was restricted:
The military police transported Piren to the clinic from
the German police station in handcuffs. He arrived at
approximately 5:00 p.m. and the clinic was closed for normal
business. After Piren’s handcuffs were removed, Harris provided
Piren with a consent form for the sexual assault examination.
Piren did not ask if he could leave and Harris did not tell him
he was free to leave. Under this factor Piren could have
5
Wallace adopted the factors set forth in United States v.
Murphy, 36 M.J. 732, 734 (A.F.C.M.R. 1992). 66 M.J. at 9.
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reasonably believed that his liberty was restricted to some
degree.
(2) The presence of coercion:
Piren argues that the effect of spending twelve hours in
handcuffs and being interviewed by an armed CID agent was
impermissibly intimidating. However, the record reflects that
Harris did not use any coercive tactics. SA Harris twice
advised Piren that the sexual assault evaluation was voluntary
and he did nothing to create a pressured environment. The
military judge found that while Piren thought that he was going
to be subjected to the sexual assault examination regardless of
whether he consented or not, Piren had made a conscious decision
to consent to the exam.
The consent form that Piren signed is also instructive as
it expressly states:
I have been requested by the undersigned USACIDC
Special Agent to give my consent to a search of my
person, premises, or property as indicated below. I
have been advised of my right to refuse a search of my
person, premises, or property. (If you do not give
your consent, do not sign this form.)
Emphasis in original.
In addition, within the signature block of the consent
form, there is an express statement that the form was signed
“freely, voluntarily and without threats or promises of any
kind.”
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(3) Suspect’s awareness of the right to refuse based on
inferences of the suspect’s age, intelligence, and
other factors:
Piren was eighteen years old at the time of the incident.
There is nothing in the record as to whether this was Piren’s
first contact with law enforcement procedures, but there is no
indication that Piren was of below average intelligence.
(4) Suspect’s mental state at the time:
Piren had a blood alcohol content of .00. He may have been
lacking sleep given the timeline of events, but he did not
testify that he was impaired by a lack of sleep or for any other
reason. There is nothing in the record which indicates that his
mental state was diminished.
(5) Consultation, or lack thereof, with counsel:
Although access to counsel is relevant to the analysis,
there is no right to have an attorney before consent is granted.
United States v. Burns, 33 M.J. 316, 319-20 (C.M.A. 1991).
Piren did not unequivocally request an attorney and was told
that his rights would be explained to him later in the day. The
military judge found that after the discussion with Harris,
Piren could have stated that he did not consent to the test
until he had discussed the test with a lawyer. However, the
fact that his question regarding an attorney was deflected does
weigh in his favor.
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United States v. Piren, No. 14-0453/AR
(6) The coercive effects of any prior violations of the
suspect’s rights:
LTC Alumbaugh’s failure to give Piren Article 31(b) rights
before questioning him about the incident does constitute a
violation of Piren’s rights. However, as that questioning
occurred after Piren signed the consent form, it was not a
“prior” violation and could not have had any coercive effect on
his decision to consent to the search.
Summary of the Wallace factors
While Piren may have believed that his liberty was
restricted to some degree and while he did ask whether he should
get an attorney, those factors are not sufficient in this case
to invalidate his consent. The remaining Wallace factors
support a finding that Piren’s consent was voluntary. Once
Piren arrived at the clinic, he was told several times that his
decision to consent to the exam was voluntary and that he could
refuse. The consent form that he reviewed and signed clearly
reiterated those rights. Reviewing the evidence in the light
most favorable to the government, we conclude that the military
judge did not abuse her discretion in finding that Piren’s
consent was voluntary.
Decision
The military judge did not abuse her discretion when she
allowed the government to cross-examine Piren about his
statements to LTC Alumbaugh during the sexual assault
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examination and when she found that Piren had voluntarily
consented to the sexual assault evaluation. The decision of the
Army Court of Criminal Appeals is therefore affirmed.
16