CAAF will hear oral argument in the Army case of United States v. Piren, No. 14-0453/AR (CAAFlog case page), on Wednesday, October 8, 2014. The case presents two issues related to statements Appellant made to an active duty field grade sexual assault nurse examiner who did not advise Appellant of his Article 31(b) right to remain silent:
I. Whether the military judge abused her discretion by overruling the defense counsel’s scope objection during the Government’s cross-examination of Appellant.
II. Whether the military judge erred by denying the motion to suppress results of the DNA analysis.
Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of abusive sexual contact in violation of Article 120. He was acquitted of a specification of aggravated sexual assault in connection with the same incident. He was sentenced to confinement for 12 months, total forfeitures, reduction to E-1, and a bad-conduct discharge. The Army CCA summarily affirmed without issuing a written opinion.
The incident leading to Appellant’s conviction (and the offense of which he was acquitted) was a sexual encounter with a female soldier, Specialist (SPC) KW. After a night of drinking, SPC KW and Appellant ended up in a hotel room together:
According to KW, she fell asleep and woke up sometime later with the appellant kissing her stomach about “two inches above her vagina.” She screamed “you’re not Zac,” kicked him, and yelled at him to get out. After he left, she went down to the lobby of the hotel, told the receptionist that she had been raped, and waited for the German police and her friends to arrive.
App. Br. at 3-4 (citations to record omitted). “Zac” was SPC KW’s boyfriend. But Appellant testified at trial and provided a different version of events:
According to his testimony, at some point during the night he woke up to go to the bathroom. When he was in the bathroom he removed his jeans, urinated, and washed his hands. As he left the bathroom he heard a noise, looked over to the bed, and saw KW holding out her hand to him. When he took her hand she pulled him to her and started kissing him. As he returned her kiss she responded positively and started touching his body with her hands and kissing his ear and neck. No one spoke or made any loud noises. He then slid his hand under her bra and caressed the small of her back as she moaned with pleasure. She then slipped her hand into his boxers and started to rub his penis vigorously for about five minutes. He rolled her on her back and started kissing her from her bra line, down her stomach, to her bikini line. She helped him remove her underwear and he kissed her inner thighs and right above her vagina. He kissed her for a few seconds until she screamed, kicked him off, and yelled “you’re not Zac.” At that point he realized that she may have thought he was her boyfriend, so he apologized and offered to explain the situation to her boyfriend.
App. Br. at 4-5 (citations to record omitted). After KW made the rape allegation, Appellant made statements to a Master Sergeant and to the German police:
Appellant testified that after he left the hotel he went to the train station where he encountered Master Sergeant (MSG) Justin Bartels. Referencing MSG Bartels’ prior testimony, appellant admitted that he made a statement to MSG Bartels that he was forced out of a girl’s room when she realized that appellant was not her boyfriend after they were already kissing each other. While being questioned by German Police, appellant made a similar statement to them stating “I was in the room with a girl, we fooled around a little bit and then she kicked me out. After making these remarks, appellant explained that both MSG Bartels and the German Police cut off appellant’s explanation and told him to remain silent.
Gov’t Br. at 5-6. Appellant also made statements to a sexual assault nurse examiner named Lieutenant Colonel (LTC) Alumbaugh, who did not advise him of his right to remain silent, and he consented to a forensic sexual assault examination that included taking samples for DNA analysis.
The Government did not oppose a Defense motion to suppress the statements Appellant made to LTC Alumbaugh, but it did oppose a Defense motion to suppress the results of the DNA analysis. The statements were suppressed while the DNA results were admitted. However, despite this suppression, the statements were still available for the purpose of impeachment by contradiction. See M.R.E. 304(b)(1) (2012), replaced by M.R.E. 304(e)(1) (2013).
Appellant then testified in his own defense. The Defense deliberately “limited the scope of [Appellant’s] testimony to avoid opening the door to the government’s use of the unwarned statements to LTC Alumbaugh” as impeachment. App. Br. at 9. But on cross-examination Government counsel questioned Appellant about the statements he made to LTC Alumbaugh, asking Appellant (over Defense objection) whether he “told LTC Alumbaugh that: 1) SPC K.W. kissed him, 2) SPC K.W. kissed his ear, 3) SPC K.W. grabbed [his] penis, and 4) SPC K. W. masturbated [him] for five minutes.” Gov’t Br. at 14 (marks omitted). Appellant testified that he did tell LTC Alumbaugh all of these things. Id. Government counsel then re-called LTC Alumbaugh and she testified that Appellant did not tell her any of these things. Gov’t Br. at 16.
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