United States v. Coleman

UNITED STATES, Appellee
v.
Walter S. COLEMAN, Specialist
U.S. Army Appellant
No. 13-0007
Crim. App. No. 20100417
United States Court of Appeals for the Armed Forces
Argued March 12, 2013
Decided May 9, 2013
STUCKY, J., delivered the opinion of the Court, in which ERDMANN
and RYAN, JJ., and COX, S.J., joined. BAKER, C.J., filed a
separate opinion concurring in the result.
Counsel
For Appellant: Captain Robert N. Michaels (argued); Colonel
Patricia A. Ham and Major Richard E. Gorini (on brief).
For Appellee: Captain Sasha N. Rutizer (argued); Major
Catherine L. Brantley, Major Robert A. Rodriguez, and Captain
Bradley M. Endicott (on brief).
Military Judge: Charles D. Hayes
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Coleman, No. 13-0007/AR
Judge STUCKY delivered the opinion of the Court.
“[T]he suppression by the prosecution of evidence favorable
to an accused upon request violates due process where the
evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.”
Brady v. Maryland, 373 U.S. 83, 87 (1963). We granted review to
consider whether the military judge erred by failing to grant a
defense motion for mistrial based on the trial counsel’s failure
to disclose to the defense that the staff judge advocate (SJA)
had agreed to recommend the convening authority (CA) reduce a
co-accused’s sentence in exchange for his testimony against
Appellant. We hold that the military judge did not abuse his
discretion in denying the motion for mistrial as the
Government’s error in failing to notify the defense of the co-
accused’s agreement with the SJA was harmless beyond a
reasonable doubt.
I. Posture of the Case
A general court-martial consisting of officer and enlisted
members convicted Appellant, contrary to his pleas, of causing
DD to engage in a sexual act by using strength and power
sufficient that DD could not avoid or escape the sexual conduct,
and adultery. Articles 120 and 134, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §§ 920, 934 (2006). Appellant was
sentenced to a dishonorable discharge, confinement for ten
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years, forfeiture of all pay and allowances, and reduction to
the lowest enlisted grade. The CA reduced the sentence to
confinement to five years but otherwise approved the sentence.
The United States Army Court of Criminal Appeals (CCA) set aside
the adultery conviction because the specification failed to
include the terminal element of the offense but otherwise
affirmed the findings and sentence. United States v. Coleman,
No. 20100417, 2012 CCA LEXIS 245, at *18-*19, 2012 WL 2756004,
at *6 (A. Ct. Crim. App. July 9, 2012) (unpublished).
II. Background
Appellant and Private First Class (PFC) Jarvis Pilago were
charged with sexually assaulting DD, PFC Pilago’s neighbor,
after she had been drinking alcohol with them at a neighborhood
gathering. When interviewed by military investigators,
Appellant invoked his right against self-incrimination, while
PFC Pilago made a lengthy statement incriminating both himself
and Appellant. On March 19, 2010, through counsel, Appellant
submitted a discovery request to the Government, asking for
disclosure of any immunity or leniency pertaining to any
witnesses. “Specifically the defense is requesting immediate
disclosure of any agreement with PFC Jarvis Joshua Pilago to
cooperate with the government in any way.” The request for
discovery was “a continuing request.” The Government response,
undated, stated as follows: “Not applicable at this time. The
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United States v. Coleman, No. 13-0007/AR
Government will comply with the defense request if it becomes
relevant.”
PFC Pilago’s trial concluded on May 12, 2010, the day
before Appellant’s trial commenced. He was convicted of
adultery and forcible sodomy of DD. His sentence included a
dishonorable discharge and confinement for forty-two months.
PFC Pilago’s defense counsel approached the SJA and obtained his
oral agreement to recommend to the CA that PFC Pilago be granted
twelve months of clemency in exchange for his truthful testimony
at Appellant’s trial, which was scheduled to begin the following
day, May 13.
After this verbal agreement was reached but before PFC
Pilago testified, the trial counsel told the defense counsel
that “there was no immunity agreement, nothing in writing and
‘negotiations had kind of been reached.’” The defense counsel
interviewed PFC Pilago. At the Article 39(a), UCMJ, 10 U.S.C.
§ 839(a) (2006), hearing held before PFC Pilago testified in
Appellant’s case, the defense counsel asked if there was a deal
in place. The assistant trial counsel answered, “No, there’s
nothing in writing.”
The defense counsel moved the military judge to prevent PFC
Pilago from testifying that he had been convicted or to provide
any details about his sentence. Later, he corrected himself,
noting that the motion was limited to “what he was convicted of,
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United States v. Coleman, No. 13-0007/AR
not the overall conviction. A conviction would be appropriate
impeachment for the defense, but not necessarily the specific
act that he was convicted of.” The Government agreed to abide
by the defense request.
PFC Pilago testified for both the prosecution and the
defense in Appellant’s trial. For the prosecution, PFC Pilago
testified that while he, Appellant, and DD were engaged in sex
in her bedroom, DD said “Stop”; that he (PFC Pilago) had twice
told Appellant, “Dude, she said stop”; and that Appellant had
replied “just to keep going.” During cross-examination,
Appellant’s defense counsel focused on DD’s ability to consent
to the sexual acts despite her alcohol consumption. He did not
cross-examine PFC Pilago about DD’s demand for them to stop, nor
about his recent court-martial conviction. On direct
examination for the defense, PFC Pilago testified that he,
Appellant, and DD had had consensual sex in PFC Pilago’s bedroom
and backyard shed earlier on the same evening.
In his post-trial submissions, Appellant asked the CA to
grant him clemency, inter alia, because the only witness to
corroborate DD’s testimony was PFC Pilago and the defense had
not been provided written notification that the SJA had agreed
to recommend clemency for him in exchange for his testimony
against Appellant. The SJA recommended that the CA order a
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United States v. Coleman, No. 13-0007/AR
post-trial hearing to resolve the issue. The CA ordered the
hearing on December 14, 2010.
After the post-trial hearing, the military judge determined
that the SJA’s promise to recommend clemency in exchange for PFC
Pilago’s testimony “was favorable and material to defense trial
preparation and should have been disclosed.” Nevertheless, he
concluded that the Government had sustained its burden to
establish that the error was harmless beyond a reasonable doubt.
III. The Law
A military judge has discretion to “declare a mistrial when
such action is manifestly necessary in the interest of justice
because of circumstances arising during the proceedings which
cast substantial doubt upon the fairness of the proceedings.”
Rule for Courts-Martial (R.C.M.) 915(a). “We will not reverse a
military judge’s determination on a mistrial absent clear
evidence of an abuse of discretion.” United States v. Ashby, 68
M.J. 108, 122 (C.A.A.F. 2009).
The failure of the trial counsel to disclose evidence that
is favorable to the defense on the issue of guilt or sentencing
violates an accused’s constitutional right to due process.
Brady, 373 U.S. at 87; accord Smith v. Cain, 132 S. Ct. 627, 630
(2012). The Supreme Court reviews all such cases for harmless
error -- whether “there is a ‘reasonable probability that, had
the evidence been disclosed, the result of the proceeding would
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have been different.’” Smith, 132 S. Ct. at 628–29 (quoting Cone
v. Bell, 556 U.S. 449, 469–70 (2009)).
A military accused also has the right to obtain favorable
evidence under Article 46, UCMJ, 10 U.S.C. § 846 (2006),1 as
implemented by R.C.M. 701–703.2 This Court has held that Article
46 and its implementing rules provide greater statutory
discovery rights to an accused than does his constitutional
1
“The trial counsel, the defense counsel, and the court-martial
shall have equal opportunity to obtain witnesses and other
evidence in accordance with such regulations as the President
may prescribe.” Article 46, UCMJ.
2
The President’s rules provide that:
(1) Each party is entitled to the production of
evidence which is relevant and necessary. R.C.M.
703(f).
(2) Upon the request of the defense, the government
must produce any documents that are in the possession
of military authorities and are “material to the
preparation of the defense or are intended for use by
the trial counsel as evidence in the prosecution case-
in-chief at trial.” R.C.M. 701(a)(2)(A).
(3) The trial counsel must disclose to the defense the
existence of evidence known to the trial counsel which
reasonably tends to:
(A) Negate the guilt of the accused of an offense
charged;
(B) Reduce the degree of guilt of the accused of
an offense charged; or
(C) Reduce the punishment.
R.C.M. 701(a)(6).
United States v. Graner, 69 M.J. 104, 107 (C.A.A.F. 2010).
7
United States v. Coleman, No. 13-0007/AR
right to due process. United States v. Roberts, 59 M.J. 323,
327 (C.A.A.F. 2004); see United States v. Hart, 29 M.J. 407,
409-10 (C.M.A. 1990). As a result, we have established two
categories of disclosure error: (1) “cases in which the defense
either did not make a discovery request or made only a general
request for discovery”; and (2) cases in which the defense made
a specific request for the undisclosed information. Roberts, 59
M.J. at 326–27. For cases in the first category, we apply the
harmless error standard. Hart, 29 M.J. at 410; see United
States v. Behenna, 71 M.J. 228, 238 (C.A.A.F. 2012). For cases
in the second category, we apply the heightened constitutional
harmless beyond a reasonable doubt standard. Roberts, 59 M.J.
at 327; Hart, 29 M.J. at 410 (dictum). Failing to disclose
requested material favorable to the defense is not harmless
beyond a reasonable doubt if the undisclosed evidence might have
affected the outcome of the trial. See Hart, 29 M.J. at 409
(dictum).
IV. Discussion
“Our review of discovery/disclosure issues utilizes a two-
step analysis: first, we determine whether the information or
evidence at issue was subject to disclosure or discovery;
second, if there was nondisclosure of such information, we test
the effect of that nondisclosure on the appellant’s trial.”
Roberts, 59 M.J. at 325. The Government rightly concedes that
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Appellant specifically requested disclosure of any agreement
with PFC Pilago and the requested matter was favorable to the
defense, should have been disclosed, and was not disclosed.
Therefore, the question before us is whether the Government’s
failure to disclose the specifically requested information was
harmless beyond a reasonable doubt.
PFC Pilago’s direct testimony for the Government was very
brief -- one and one-half pages. The trial counsel asked what
he and Appellant did in DD’s bedroom on the night of July 26,
2009 -- he had his penis in DD’s mouth while Appellant was
engaged in intercourse with her. Trial counsel then asked what
DD said. PFC Pilago testified that she said “Stop”; PFC Pilago
told Appellant that DD had said to stop, but Appellant said to
keep going. This evidence corroborated DD’s testimony that
Appellant had sex with her3 and that she had told both of them to
stop, and they did not.
For the defense, PFC Pilago testified that earlier in the
evening, Appellant had performed oral sex on a consenting DD in
PFC Pilago’s bedroom while she performed oral sex on PFC Pilago;
the threesome engaged in consensual sexual acts in a shed; they
later went to DD’s home, which was across the street; that DD
was not so intoxicated she could not cross the street
3
This was further corroborated by medical evidence that DD
suffered a vaginal tear.
9
United States v. Coleman, No. 13-0007/AR
unassisted, could carry on a conversation without slurring her
words, and unlock the door to her home, all without stumbling or
fumbling.
In his closing argument, the defense counsel argued that
the sexual relationship between Appellant and DD was consensual.
He asserted that: (1) DD had a motive to lie -- her husband was
deployed and she did not want to lose him, especially with a
newborn who would need health insurance; (2) DD was not
substantially incapacitated (a separate charge of which
Appellant was acquitted that apparently was charged in the
alternative to rape by force); (3) that Appellant did not engage
in sexual acts with DD in her bedroom; and (4) that DD’s
previous sexual encounters with Appellant that evening were
consensual. The defense counsel also argued that it was
convenient for DD to not remember the consensual sex that she
had with Appellant and PFC Pilago earlier that evening. Defense
counsel then discussed PFC Pilago’s motive to lie. He drew
attention to the accomplice instruction the military judge had
given concerning PFC Pilago’s testimony:
[The military judge] said, in essence, be wary of
accomplice testimony because of the benefits that
someone may receive from them; the benefits of
immunity; and the benefits of potentially receiving
some sort of clemency from the Commanding General in
his own case. I am not asking the panel to do
something unreasonable. So, what I’ll tell you is
that Jarvis Pilago testified to a lot of different
things. I’m asking you to consider the evidence that
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he gave to the government is the evidence that is
going to help him with his clemency. It’s the
evidence that helped the government . . . . Panel
members, there was no sex in [DD’s] bedroom. PFC
Pilago told you what he had to tell you to get his
clemency. [DD] made up the bedroom story to avoid
telling her husband she cheated on him.
The defense knew that PFC Pilago had been convicted and
sentenced for the same offenses with which Appellant was
charged. The defense counsel could have impeached PFC Pilago
with the conviction and punishment but chose not to do so.
Nevertheless, Appellant’s counsel did argue that PFC Pilago was
testifying because he wanted clemency from the CA for his
participation in the offenses, and PFC Pilago’s motive to
misrepresent was self-evident to the court members. It is
unclear how knowing that the SJA had agreed to recommend that
the CA grant PFC Pilago clemency in exchange for his testimony
would have caused the defense counsel to change strategy or
tactics or led to a different result. It would not have
affected either the defense counsel’s ability to cross-examine
PFC Pilago or his closing argument.
Although not necessary for disposition of this case, the
Government also seems to have been prepared to counter any
attempt by the defense to impeach the credibility of PFC Pilago
with evidence that he had (1) been convicted of sexual
misconduct for the same incident that formed the basis of
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United States v. Coleman, No. 13-0007/AR
Appellant’s charges and (2) made a prior statement to law
enforcement that was consistent with his testimony at trial.
A prior consistent statement is not hearsay if it is
“offered to rebut an express or implied charge against the
declarant of recent fabrication or improper influence or
motive.” Military Rule of Evidence (M.R.E.) 801(d)(1)(B).
This Court has consistently interpreted the rule to
require that a prior statement, admitted as
substantive evidence, precede any motive to fabricate
or improper influence that it is offered to rebut.
Where multiple motives to fabricate or multiple
improper influences are asserted, the statement need
not precede all such motives or inferences, but only
the one it is offered to rebut.
United States v. Allison, 49 M.J. 54, 57 (C.A.A.F. 1998)
(citations omitted).
PFC Pilago’s prior consistent statement was made well
before his counsel approached the SJA to make a deal. It is
most likely that, had the defense tried to impeach PFC Pilago
with the agreement, the prior consistent statement would have
been admitted to rebut any defense contention that he had motive
to alter his testimony to obtain clemency. Even if the military
judge would have refused to admit the prior consistent statement
for the truth of the matter asserted, it still would have been
admissible “simply to corroborate, or rehabilitate, the in-court
testimony of a witness, regardless of whether it qualifies for
exception from the hearsay rule under Fed. R. Evid.
12
United States v. Coleman, No. 13-0007/AR
801(d)(1)(B).” David F. Binder, Hearsay Handbook, 4th § 40.1,
at 1052 (2012-13 ed.) (Fed. R. Evid. 801(d)(1)(B) is
substantially the same as M.R.E. 801(d)(1)(B)); see 2 Stephen A.
Saltzburg et al., Military Rules of Evidence Manual
§ 801.02[6][c], at 8-27 (7th ed. 2011); United States v.
Simonelli, 237 F.3d 19, 27 (1st Cir. 2001); United States v.
Ellis, 121 F.3d 908, 919 (4th Cir. 1997).
In conclusion, while the conduct of the prosecution in not
disclosing the oral agreement between PFC Pilago’s counsel and
the SJA was, at a minimum, negligent, and certainly violated
Brady, Article 46, and R.C.M. 701–703,4 the Government has
established that under the circumstances of this case its
failure was harmless beyond a reasonable doubt -- disclosure
would not have affected the outcome of the trial. Therefore,
the military judge did not abuse his discretion in refusing to
declare a mistrial.
V. Judgment
The judgment of the United States Army Court of Criminal
Appeals is affirmed.
4
We disagree with the military judge’s suggestion that the
failure to disclose was somehow mitigated because the
experienced defense counsel could have divined that PFC Pilago
was testifying as a result of a deal with the Government. The
defense counsel’s experience does not relieve the Government of
its burden to disclose under Brady, Article 46, UCMJ, and R.C.M.
701–703.
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United States v. Coleman, No. 13-0007/AR
BAKER, Chief Judge (concurring in the result):
I agree with the majority’s analysis regarding the
threshold application of Brady v. Maryland, 373 U.S. 83 (1963),
and Article 46, Uniform Code of Military Justice, (UCMJ), 10
U.S.C. § 846 (2006), to this case. Pilago’s oral agreement with
the prosecutor for a favorable clemency recommendation was
clearly favorable and material to the defense. It should have
been disclosed to Appellant, regardless of whether he expressly
requested it, although he did, and regardless of whether
Appellant knew Pilago had been convicted and sentenced for the
same offense. However, unlike the majority, I would not rely on
evidence that was not admitted, and potentially not admissible,
in determining whether the failure to disclose was harmless
beyond a reasonable doubt. Cf. United States v. Holt, 58 M.J.
227, 232 (C.A.A.F. 2003) (“Article 66(c) limits the Courts of
Criminal Appeals to a review of the facts, testimony, and
evidence presented at the trial, and precludes a Court of
Criminal Appeals from considering extra-record matters when
making determinations of guilt, innocence, and sentence
appropriateness.” (citations and internal quotation marks
omitted)); United States v. Duffy, 3 C.M.A. 20, 23, 11 C.M.R.
20, 23 (1953) (holding that the military justice system does not
“permit appellate reviewing authorities to cast beyond the
limits of the record for ‘evidence’ with which to sustain a
United States v. Coleman, No. 13-0007/AR
conviction.”); United States v. Whitman, 3 C.M.A. 179, 180, 11
C.M.R. 179, 180 (1953) (“look[ing] outside the record for
evidence of guilt” is “reversible error”). In addition, I
hesitate to assume that actual knowledge of a clemency agreement
can never enhance the effectiveness of a cross-examination or
closing statement.
First, the prior consistent statement made by Pilago was
marked for identification only at the outset of trial. But it
was neither admitted nor referred to at trial, nor discussed at
the post-trial Article 39(a), UCMJ, 10 U.S.C. § 39(a) (2006),
session. See R.C.M. 1103(b)(3) (“The following matters shall be
attached to the record: . . . (B) Exhibits . . . which were
marked for and referred to on the record but not received in
evidence.” (emphasis added)). The preliminary marking of a
document for administrative convenience does not make that
document part of the evidentiary record at trial or on appeal.
Arguments can be made on both sides of the ledger as to whether
this evidence might have come in, if it had been offered as
evidence. But it was not offered, and therefore the military
judge never conducted the necessary M.R.E. 401 and 403 analyses
in order to admit the evidence. Nor was the matter appealed to
this Court by either party. Therefore, it seems speculative, if
not unfair, for this Court to now incorporate this prior
statement into its harmless error analysis.
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United States v. Coleman, No. 13-0007/AR
Second, an agreement to recommend clemency to a co-actor
offers a qualitatively different opportunity to cross-examine
and expose bias than does the knowledge alone that a witness was
a co-actor and might hope for clemency. Contrast United States
v. Coleman, __ M.J. __ (11) (C.A.A.F. 2013) (knowledge of an
actual agreement with the witness “would not have affected
either the defense counsel’s ability to cross-examine PFC Pilago
or his closing argument.”). Disclosure of such an agreement
would allow defense counsel to present evidence, and not merely
argument, of a witness’s motive to testify for the government.
The distinction could affect the outcome of a trial.
Nonetheless, I concur with the majority because there is no
doubt that the disclosure would not have affected the outcome in
this case. Among other things, the military judge instructed
members on the inherent risks of relying on accomplice
testimony. The victim, DD, testified and her testimony was
substantiated by medical evidence. In addition, defense counsel
cross-examined Pilago and thus was able to relate the military
judge’s accomplice instruction to Pilago’s possible hope for
clemency. Finally, Pilago’s bias would have been self-evident
to members in a case of this sort.
Therefore, I concur with the majority’s finding that the
erroneous failure to disclose the accomplice’s agreement with
the SJA in this case was harmless beyond a reasonable doubt.
3