United States v. Santos

IN THE CASE OF
UNITED STATES, Appellee
v.
Javier SANTOS, Sergeant
U.S. Army, Appellant
No. 03-0093
Crim. App. No. 9900559
United States Court of Appeals for the Armed Forces
Argued October 21, 2003
Decided March 23, 2004
EFFRON, J., delivered the opinion of the Court, in which
GIERKE, BAKER, and ERDMANN, JJ., joined. CRAWFORD, C.J., filed
an opinion concurring in the result.
Counsel
For Appellant: Captain Michael L. Kanabrocki (argued); Colonel
Robert D. Teetsel, Lieutenant Colonel Mark Tellitocci, and
Major Sean S. Park (on brief); Lieutenant Colonel E. Allen
Chandler, Jr., Major Jeanette K. Stone, and Captain Linda A.
Chapman.
For Appellee: Captain Timothy Litka (argued); Colonel Lauren B.
Leeker, Lieutenant Colonel Margaret B. Baines, and Major
Theresa A. Gallagher (on brief).
Military Judges: R. J. Hough and S. R. Henley
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Santos, No. 03-0093/AR
Judge EFFRON delivered the opinion of the Court.
At a general court-martial composed of a military judge
sitting alone, Appellant was convicted, pursuant to mixed pleas,
of one specification of violation of a lawful order, two
specifications of assault consummated by a battery, five
specifications of aggravated assault, one specification of
communicating a threat, one specification of indecent assault,
and one specification of kidnapping, in violation of Articles
92, 128, and 134, Uniform Code of Military Justice [hereinafter
UCMJ], 10 U.S.C. §§ 892, 928 and 934 (2000). He was sentenced
to a dishonorable discharge, confinement for 10 years, total
forfeitures, and reduction to Private E-1. The convening
authority approved these results and provided Appellant with 181
days of pretrial confinement credit against the sentence. The
Court of Criminal Appeals affirmed in an unpublished summary
opinion.
On Appellant’s petition, we granted review of the following
issue:
WHETHER THE ARMY COURT OF CRIMINAL APPEALS
ERRED IN RULING THAT THE GOVERNMENT DID NOT
VIOLATE PETITIONER'S DUE PROCESS RIGHTS
UNDER BRADY v. MARYLAND, THE CONFRONTATION
CLAUSE OF THE SIXTH AMENDMENT TO THE
CONSTITUTION, AND ARTICLE 46 OF THE UCMJ BY
FAILING TO DISCLOSE EXCULPATORY, FAVORABLE
AND MATERIAL EVIDENCE TO THE DEFENSE WHICH
IT KNEW ABOUT OR SHOULD HAVE KNOWN ABOUT
WHERE THE PROSECUTION WITHHELD CRITICAL
IMPEACHMENT EVIDENCE THAT WOULD HAVE PROVEN
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THAT [Ms. AM] NOT ONLY COMMITTED PERJURY AT
TRIAL, BUT THAT SHE ALSO HAD STRONG BIASES,
PREJUDICES, AND MOTIVES TO FABRICATE THE
CHARGE AGAINST PETITIONER.
For the reasons set forth below, we hold that any error
with respect to discovery was not prejudicial, and therefore
affirm.
I. BACKGROUND
A. FACTUAL SETTING
1. Testimony at the Article 32 hearing
The granted issue concerns the charge that Appellant
committed an indecent assault against Ms. AM. At a pretrial
investigation hearing under Article 32, UCMJ, 10 U.S.C. § 832(2000), testimony by Ms. AM included the following matters. She
dated Appellant at various times in 1997, and she was with
Appellant at her mother’s house on a night in the late summer.
When he sought to engage in sexual intercourse with her, she
rebuffed him. Despite her repeated requests that he stop, he
performed an act of oral sodomy on her. He then pulled down his
pants, lay on top of her, touched his penis to her vagina, and
attempted to penetrate her while she pleaded with Appellant to
stop. When he did not respond, she pinched him, and she was
able to extricate herself from the situation. Based upon this
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information, an indecent assault charge was added to the
original charges against Appellant.
2. Defense discovery requests
Defense counsel’s initial discovery request, submitted to
the trial counsel on February 19, 1999, included the following:
Any known evidence tending to diminish [the]
credibility of any witness including . . .
evidence of other character, conduct, or
bias bearing on witness credibility under
M.R.E. 608 . . . Specifically[,] information
pertaining to . . . Ms. [AM] . . . . The
defense also requests any other evidence in
the possession of the government favorable
to the accused, or tends [sic] to negate the
guilt of the accused of an offense charged,
or reduce the punishment for an offense
charged.
On April 7, 1999, defense counsel submitted a supplemental
discovery request to obtain:
Any and all statements made by [Ms. AM].
Specifically[,] all sworn statements made by
[Ms. AM] to CID [the Army Criminal
Investigations Command (CID)] concerning the
investigation into the death of PFC Chaffin
[sic].
During the CID investigation noted in the discovery request, the
CID agents at one point treated Appellant as a suspect in the
death of Private First Class (PFC) Jason Chafin. Eventually,
however, charges were brought against two other service members,
and Appellant was not charged in connection with the death of
PFC Chafin.
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3. The Government’s response to the discovery requests
The Government, in response to the foregoing requests,
provided defense counsel with two documents. The first
document, a report by the Colorado Springs Police Department,
contained a detective’s summary of an interview with Ms. AM on
February 3, 1998. According to the summary, Ms. AM stated that
when she met Appellant in early 1997, they were only friends,
and she did not consider herself to be his girlfriend. They
fell out of touch, but he started contacting her again towards
the end of the summer. The summary primarily addressed events
on August 29, 1997, the evening that PFC Chafin disappeared.
During the interview, Ms. AM denied seeing Appellant or his
friends that evening. When she returned home after the
interview, Ms. AM called the investigator to state that she
remembered more details. Specifically, she recalled that she
saw Appellant and his friend, Specialist (SPC) Neal Johnson, on
August 29, 1997, when they came to a friend’s apartment that
evening at approximately seven o’clock, but that they left no
longer than five minutes later.
The second document, a sworn statement given by Ms. AM to
the CID on February 9, 1999, concerned the allegation that
Appellant had indecently assaulted her in the summer of 1997.
In the statement, Ms. AM said that Appellant “often ask[ed her]
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to marry him and to have sexual intercourse with him, which
[she] never did.” With respect to the night in question, Ms. Am
stated that after Appellant arrived at her mother’s residence,
they went into Ms. AM’s bedroom. Appellant kissed her and asked
to have sexual intercourse, to which she said no. He pushed her
down, took off her pajama pants, pulled down his pants and
attempted penetration of her vagina. When he did not respond to
her requests to stop, she pinched him so that she could
extricate herself. She was able to do so, and the assault
ceased. In her sworn statement, Ms. AM did not mention the act
of oral sodomy that had been discussed during her testimony at
the Article 32 hearing.
4. Consideration of the indecent assault charge at trial
At trial, Ms. AM testified that she did not consider their
relationship to be that of boyfriend and girlfriend. Although
she kissed Appellant on occasion, she did not allow their
interaction to proceed further in terms of sexual contact.
Appellant repeatedly expressed his desire to marry her prior to
his pending deployment to Kuwait, and he sought to induce her to
marry him promising to leave his car with her if they wed. She
testified that she told him that they should “just wait, wait
‘till he got back.”
With respect to the indecent assault allegation, Ms. AM
testified that Appellant repeatedly attempted to engage her in
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sexual contact, she eventually allowed him to remove her pajama
pants. At that time, he performed an act of oral sodomy on her
without her consent. The balance of her testimony provided a
description of the incident similar to her testimony at the
Article 32 hearing and her statement to the CID. She added that
she first told the CID about the alleged indecent assault in
January 1998 during the CID’s investigation into PFC Chafin’s
disappearance. According to Ms. AM, the CID agents asked her
about Appellant’s character, and she told them about the alleged
assault.
During cross-examination, defense counsel relied upon both
of the documents obtained during discovery. Defense counsel
first called her attention to the summary of her interview with
the Colorado Springs Police Department, which concerned the
disappearance of PFC Chafin. Defense counsel noted that the
interview summary contained no claim by Ms. AM that she had been
sexually assaulted by Appellant. Defense counsel suggested that
the summary contradicted her statement on direct examination
that she had reported the alleged indecent assault to
authorities investigating PFC Chafin’s disappearance.
Defense counsel then used the second document, the sworn
statement given by Ms. AM to the CID, in an effort to impeach
her credibility. Counsel contrasted her testimony at trial with
her earlier sworn statement. At trial, she stated that
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Appellant had performed an act of oral sodomy on her during the
evening in question, but the sworn statement did not mention
oral sodomy.
During the defense case, Appellant testified on his own
behalf. He stated that during his relationship with Ms. AM, he
did not engage in any sexual activity, including oral sodomy.
He further testified that although he did see Ms. AM during
Labor Day weekend in 1997, he was dating another individual
exclusively. He added that his military duties during the
latter part of the summer had kept him away from the area while
his unit was performing field exercises.
Appellant expressly disputed Ms. AM’s statement that he
wanted to marry her. He testified that Ms. AM wanted to engage
in a sham marriage so that she could move out of her mother’s
home. According to Appellant, Ms. AM attempted to persuade him
to marry her by telling him that he would receive extra
compensation as a married soldier. She assured him that they
could live in separate rooms, he could still date other women,
and she would take care of his car while he was in Kuwait.
Appellant also testified that during his deployment in
Kuwait, he received letters from Ms. AM. He stated that the
letters, which were not produced at trial, contained an apology
from Ms. AM for not telling the truth when she told law
enforcement that Appellant was not present at her friend’s
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apartment on the night that PFC Chafin was murdered. According
to Appellant, she also stated that she wanted to have a
relationship with Appellant when he returned from Kuwait.
During his closing argument on findings, trial counsel
portrayed Ms. AM as a reluctant witness, who had “no vendetta”
against Appellant. The prosecution theme was that she had
simply provided information to law enforcement officials who
asked her about Appellant during their investigation of an
unrelated case, PFC Chafin’s disappearance. Defense counsel’s
closing statement sought to portray Ms. AM as untruthful and
focused on the lengthy period of time that elapsed between the
alleged incident and her statements to law enforcement
authorities. At the conclusion of the arguments, the military
judge deliberated, and entered findings that convicted Appellant
of a number of charges and acquitted him of others. Appellant
was convicted of the charge that he indecently assaulted Ms. AM.
5. Post-Trial Developments
After the trial was concluded, Appellant asked the CID to
provide him with documents related to the investigation of his
case. The CID response included a number of documents generated
in connection with the disappearance of PFC Chafin, a crime that
was not the subject of charges in the present case. The
documents from the Chafin investigation had not been included in
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the prosecution’s response to the defense discovery requests in
the present case.
In this appeal, Appellant contends that six of the
documents that he received after the trial would have enabled
him to undermine the credibility of Ms. AM at trial. Appellant
further contends that failure to provide those document’s during
discovery requires reversal of the indecent assault conviction.
We shall first summarize the legal standards applicable to
review of discovery issues, and then apply those standards to
the documents at issue in this appeal.
II. DEFENSE DISCOVERY IN THE MILITARY JUSTICE SYSTEM
The military justice system provides for broader discovery
than required by practice in federal civilian criminal trials.
See United States v. Williams, 50 M.J. 436, 439-40 (C.A.A.F.
1999). Article 46, UCMJ, 10 U.S.C. § 846 (2000), mandates that
“[t]he 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.” The President has implemented Article 46 in
Rule for Courts-Martial 701 [hereinafter R.C.M.].
R.C.M. 701(a)(2)(A) requires the Government, upon defense
request, to allow inspection of any tangible objects, such as
papers and documents, that “are within the possession, custody,
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or control of military authorities, and which are material to
the preparation of the defense.” Regardless of whether the
defense has made a request, the Government is required to
disclose known evidence that “reasonably tends to” negate or
reduce the degree of guilt of the accused or reduce the
punishment that the accused may receive if convicted. See
R.C.M. 701(a)(6); see also Williams, 50 M.J. at 440 (noting that
R.C.M. 701(a)(6) implements the disclosure requirements of Brady
v. Maryland, 373 U.S. 83 (1963)). Evidence that could be used
at trial to impeach witnesses is subject to discovery under
these provisions. See United States v. Watson, 31 M.J. 49, 54
(C.M.A. 1990)(citing Giglio v. United States, 405 U.S. 150(1972)).
If the Government fails to disclose discoverable evidence,
the error is tested on appeal for prejudice, which is assessed
“in light of the evidence in the entire record.” United States
v. Stone, 40 M.J. 420, 423 (C.M.A. 1994)). As a general matter,
when an appellant has demonstrated error with respect to
nondisclosure, the appellant will be entitled to relief only if
there is a reasonable probability that there would have been a
different result at trial if the evidence had been disclosed.
When an appellant has demonstrated that the Government failed to
disclose discoverable evidence with respect to a specific
request or as a result of prosecutorial misconduct, the
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appellant will be entitled to relief unless the Government can
show that nondisclosure was harmless beyond a reasonable doubt.
See United States v. Roberts, ___ M.J. ___ (C.A.A.F. 2004).
III. DISCUSSION
Under the standards set forth in Roberts and the cases
cited therein, an appellate court may resolve a discovery issue
without determining whether there has been a discovery violation
if the court concludes that the alleged error would not have
been prejudicial. For purposes of this appeal, we shall assume
without deciding: (1) that the documents at issue were material
to the preparation of the defense and should have been disclosed
in response to the discovery request; and (2) that failure to do
so should be tested for prejudice on appeal under the harmless
beyond a reasonable doubt standard. The documents at issue were
generated by the CID during investigation of PFC Chafin’s
disappearance. That investigation did not result in charges
against Appellant, either with respect to PFC Chafin’s
disappearance or with respect to his relationship with Ms. AM.
The documents do not directly address the allegation that
Appellant indecently assaulted Ms. AM.
The first document cited by the defense is a redacted CID
report dated September 21, 1998, summarizing an interview of Ms.
AM. According to the summary:
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[Ms. AM] was using [Appellant] for his
vehicle but they did not have sexual
relations. [Ms. AM] and [Appellant] talked
about getting married so she could get out
of her house and receive the extra money
that spouses receive from the Army.
[Ms. AM] would drive [Appellant’s] vehicle a
lot . . . but never would have sex with
[Appellant].
[Ms. AM] mentioned [Appellant] has a lot . .
. of money everytime [sic] they were around
each other.
This document is largely cumulative of other information
available to Appellant at trial. In view of Appellant’s
knowledge of his relationship with Ms. AM, as reflected in his
testimony at trial, as well as his ability to establish that she
had not made a timely report of the sexual assault allegations,
the additional value of this document was minimal. To the
extent that the document addressed the issue of whether Ms. AM
or Appellant was telling the truth at trial as to who initiated
the discussion of marriage, the summary is ambiguous at best.
In any case, it is unlikely that the military judge, as fact-
finder, would have found it necessary to resolve this collateral
issue in the course of adjudicating the indecent assault charge
under the circumstances of this case, particularly where the
defense did not rely upon consent.
The second set of documents includes five items regarding
Appellant’s whereabouts on the night PFC Chafin disappeared.
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Two documents are redacted copies of CID reports, summarizing
interviews with Ms. AM. Both indicate that Ms. AM had been at
the apartment of a friend that night, and that neither Appellant
nor his friend, SPC Johnson, had come to the apartment. A third
document summarizes an agent’s re-interview of Ms. AM, after she
had acknowledged that Appellant had been at the apartment. The
summary notes that in the third interview, Ms. AM said that
Appellant had told her to tell the CID that he had not been at
the apartment. The summary contains the agent’s notation that
either Appellant or Ms. AM was not telling the truth, and it
contains a marginal notation, “Mention Reward.” The other two
documents contain statements by SPC Johnson, who indicated that
he was with Appellant on the day in question and that they were
at the apartment for some period of time at some point. The
statements are rambling and lacking in detail, reflecting the
impact of an apparently substantial quantity of alcoholic
beverages consumed by SPC Johnson during that day.
The fact that Ms. AM had provided inconsistent statements
to law enforcement officials about the evening in question was
already known to the defense at trial, as reflected in other
information provided during discovery and Appellant’s own
testimony. It is unlikely that the brief summaries and SPC
Johnson’s vague recollections would have enabled the military
judge -- had he been inclined to do so -- to sort out what
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happened on the night PFC Chafin disappeared. In any case, the
military judge, as fact-finder, was well aware that Ms. AM had
provided inconsistent information to law enforcement officials
on that matter. Because that question had no more than a
remote, collateral connection to the alleged indecent assault,
the additional ambiguous information in the CID summaries and
SPC Jonson’s statements would not have had significant impact on
the military judge’s adjudication of the findings.
The review of discovery violations involves case-specific
considerations. In another case, undisclosed documents from an
unrelated investigation that cast doubt on the credibility of a
witness might have greater value. In the present case, in light
of the minimal probative value and utility of the undisclosed
documents at issue, and in light of all the evidence presented
in the record, we hold that any error in not providing these
documents to Appellant during discovery was harmless beyond a
reasonable doubt.
DECISION
The decision of the United States Army Court of Criminal
Appeals is affirmed.
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CRAWFORD, Chief Judge (concurring in the result):
See my separate opinion in United States v. Roberts,
___ M.J. ___ (C.A.A.F. 2004)(concurring in the result).