Opinion Analysis: No privilege for statements to a victim advocate made in the presence of a third-party, but maybe ineffective assistance of counsel, in United States v. Harpole
CAAF decided the Coast Guard case of United States v. Harpole, 77 M.J. 231, No.17-0171/CG (CAAFlog case page) (link to slip op.), on Wednesday, February 14, 2018. The court unanimously concludes that the appellant’s statements to a military victim advocate were not privileged because a third-party was present when the statements were made, however a majority finds that further fact-finding is necessary to determine whether it was ineffective assistance of counsel for the defense to fail to seek suppression of the statements for violation of Article 31(b). Accordingly, CAAF reverses the decision of the Coast Guard CCA and remands the case for a fact-finding hearing.
Judge Ohlson writes for the court, joined by all but Chief Judge Stucky who dissents because he concludes that any motion to suppress would have failed.
CAAF granted review of three issues:
I. Whether the military judge abused her discretion when she allowed a victim advocate to testify as to Appellant’s privileged communications, in violation of M.R.E. 514.
II. Whether the trial defense counsel were ineffective by failing to suppress Appellant’s unwarned admissions. These admissions were made to YNI NIPP when she knew he was a suspect and under investigation. She intended to report these admissions to the command and questioned him without advising him of his Art. 31 UCMJ, rights.
III. Upon request by the defense counsel and using a defense-drafted instruction, should the military judge have provided the members with an explanation of the term “incapable”?
The third granted issue was not briefed and was resolved by United States v. Bailey, 77 M.J. 11 (C.A.A.F. Nov. 29, 2017) (CAAFlog case page). Slip op. at 2.
After a night of drinking during a port call in Tahiti, Seaman (E-3) Harpole went into a four-person female stateroom aboard the USCGC Polar Star, ostensibly to retrieve his backpack from the alleged victim, Storekeeper Third Class (SK3) GR. While he was in the room, he and GR had sex. GR was later confronted by her roommates about the encounter but stated she could not remember what happened (because she too had been drinking during the port call). She then reported the incident as a sexual assault.
“Three days after the incident, Appellant informed his friend, Seaman Boatswain’s Mate (SNBM) SC, and a victim advocate, Yeoman First Class (YN1) Nipp, that SK3 GR had sexually assaulted him.” Slip op. at 4 (emphasis in original). YN1 Nipp then reported Harpole’s statements to the command and gave “a detailed written statement about [Harpole]’s communication to her.” Slip op. at 4.
Harpole’s defense moved to prevent YN1 Nipp from testifying, asserting the Mil. R. Evid. 514 victim advocate-victim privilege. The military judge found that the privilege does not apply and denied the motion. Harpole was then convicted by a general court-martial composed of members with enlisted representation of making a false official statement, two specifications of sexual assault, and housebreaking, and he was sentenced to confinement for seven years, reduction to E-1, and a dishonorable discharge. The Coast Guard CCA affirmed the findings and sentence, agreeing that the victim advocate-victim privilege does not apply and rejecting a claim of ineffective assistance of counsel on the basis that “the theory that [YN1 Nipp] was acting as a Victim Advocate is factually inconsistent with the theory that [YN1 Nipp] was required to give Appellant his Article 31(b) rights.” United States v. Harpole, No. 1420, slip op. at 8 (C.G. Ct. Crim. App. Nov. 10, 2016).
Judge Ohlson’s opinion of the court affirms the military judge and Coast Guard CCA’s conclusions about the privilege, but it scolds the CCA for asserting an inconsistency, noting that “there is nothing improper or unusual about counsel presenting arguments in the alternative before a trial judge.” Slip op. at 10 n.11.
The general rule for the victim advocate-victim privilege is that:
A victim has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made between the alleged victim and a victim advocate or between the alleged victim and Department of Defense Safe Helpline staff, in a case arising under the UCMJ, if such communication was made for the purpose of facilitating advice or assistance to the alleged victim.
Mil. R. Evid. 514(a) (emphasis added). A communication is only confidential, however:
if made in the course of the victim advocate-victim relationship or Department of Defense Safe Helpline staff-victim relationship and not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of advice or assistance to the alleged victim or those reasonably necessary for such transmission of the communication.
Mil. R. Evid. 514(b)(4). The references to the Safe Helpline staff were added in 2015 (discussed here) – after Harpole’s trial – but do not affect the analysis. See slip op. at 6 n.7.
The military judge and CCA’s conclusions that the privilege does not apply were based on findings that Harpole’s communications to YN1 Nipp were not confidential. CAAF agrees. Judge Ohlson explains that:
Based on the record before us, Appellant has not met his burden of establishing that his statements to YN1 Nipp were confidential. Two key factors cause us to reach this conclusion.
First, a third party, SNBM SC, was present during this communication and the record indicates that SNBM SC did not have any special relationship with Appellant. Rather, SNBM SC was simply Appellant’s shipmate and friend and attended the victim advocate interview “for support.” The mere provision of moral support is not enough to maintain the confidentiality of a statement.
Second, the record does not support the contention that SNBM SC’s presence at the meeting with YN1 Nipp was “in furtherance of the rendition of advice or assistance” pursuant to the provisions of M.R.E. 514(b)(3). The plain meaning of this phrase requires the communication to the third person to be for the purpose of facilitating the victim advocate in providing advice or assistance to the victim.
Slip op. at 7-8 (citations omitted) (emphasis and paragraphing added). These holdings are a significant limit on the victim advocate-victim privilege, essentially allowing only an assistant to the victim advocate to be present if the statements are to be confidential.
Judge Ohlson then turns to Harpole’s claim of ineffective assistance of counsel.
The only Article 31(b), UCMJ, predicate in dispute in this case is whether the victim advocate interrogated or requested any statement from Appellant. As part of our inquiry into this issue, we must determine whether the victim advocate was “participating in an official law enforcement or disciplinary investigation or inquiry, as opposed to having a personal motivation for the inquiry.” See Jones, 73 M.J. at 361 (internal quotation marks omitted) (citation omitted).
The record reflects that at the time YN1 Nipp and Appellant met, YN1 Nipp knew that Appellant was suspected of a crime. And yet, she did not advise Appellant of his Article 31(b), UCMJ, rights. Instead, she posed two questions to Appellant: (1) Was it “okay that SNBM [SC] [was] in the room”? and (2) “[W]hat was going on”?
The first question is telling because it indicates YN1 Nipp suspected that Appellant’s request to talk to her was based on her role as a victim advocate (as opposed to a casual encounter or a junior enlisted servicemember seeking direction from a noncommissioned officer on non-victim advocate matters). . . .
The second question posed by YN1 Nipp about “what was going on” demonstrates that she sought to elicit information from Appellant at a time when she knew he was suspected of sexually assaulting SK3 GR. . . .
Thus, the facts of this case provided a reasonable basis for trial defense counsel to argue before the military judge that Appellant’s statements to YN1 Nipp should have been suppressed pursuant to the provisions of Article 31(b), UCMJ. Indeed, on the face of the record, it is unclear why trial defense counsel did not pursue this issue at Appellant’s court-martial. Counsel could have first argued that Appellant’s statements were privileged and then, in the alternative, that Appellant’s statements were inadmissible under Article 31, UCMJ.
Slip op. at 9-10.
The majority, however, “cannot discern any reasonable tactical explanation for trial defense counsel’s failure to take this course of action, and [they] decline to engage in blind speculation on this point.” Slip op. at 11. Accordingly, CAAF orders a post-trial fact-finding hearing pursuant to United States v. DuBay, 37 C.M.R. 411 (1967), in order “to further develop the record regarding Appellant’s ineffective assistance of counsel claim.” Slip op. at 11.
But Chief Judge Stucky dissents because he finds that:
A reasonable person, under the circumstances, would not conclude that merely by asking “what was going on,” and listening to Appellant’s story, YN1 Nipp was interrogating him or that she was engaged in an official law enforcement or disciplinary investigation or inquiry. Thus, the defense counsel had no valid grounds on which to challenge the admissibility of Appellant’s statements to YN1.
Therefore, the defense counsel’s performance was not deficient, and a DuBay hearing to determine counsel’s motivation in not moving to suppress Appellant’s statements is unnecessary.
Diss. op. at 3. Chief Judge Stucky’s separate opinion does not, however, disagree with (or even reference) the majority’s resolution of the privilege issue.
There is one loose end. Before Harpole spoke with YN1 Nipp, be spoke with his friend, SNBM SC. Harpole then told YN1 Nipp that “he had already told SNBM [SC] everything.” Slip op. at 5 (quoting record). Accordingly, even if Harpole’s statements to YN1 Nipp should have been suppressed, his ostensibly-identical statements to SNBM SC were likely admissible.
Judge Ohlson’s majority opinion recommends that the DuBay military judge determine “whether there is a reasonable probability that the members’ findings would have been different had YN1 Nipp’s testimony been suppressed.” Slip op. at 12. If the answer to that question is no, and the members would have made the same findings based on testimony from SNBM SC instead of testimony from YN1 Nipp, then it doesn’t matter if YN1 Nipp’s testimony should have been suppressed.
Nevertheless, CAAF’s holding that the presence of a third party eliminates the confidentiality of a report to a victim advocate, including the conclusion that “the mere provision of moral support is not enough to maintain the confidentiality of a statement” slip op. at 6, and that “the communication to the third person [must] be for the purpose of facilitating the victim advocate in providing advice or assistance to the victim,” slip op. at 7, will endure as significant limitations on the application of the privilege in future cases.
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