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.
Of the two granted issues, the first granted issue is far more likely to win relief for Appellant than the second because of three facts involving the DNA analysis in the second granted issue. First, while Appellant didn’t get a full rights advisory prior to signing the consent form for the seizure of his DNA, the form included language regarding his right to refuse. Gov’t Br. at 7 n.45. Second, the seizure of Appellant’s DNA was inevitable, as law enforcement agents had already obtained a search authorization for Appellant’s DNA. Gov’t Br. at 8-9. Finally, even if the results of the DNA analysis were erroneously admitted, that error was likely harmless because the Government used the DNA evidence to support the aggravated sexual assault specification of which Appellant was acquitted. Gov’t Br. at 36.
But the first granted issue isn’t without its factual shortcomings. Specifically, the Defense Counsel failed to make a clear objection. When the Government questioned Appellant on cross-examination about his conversation with LTC Alumbaugh, the Defense objected to the questioning as “outside the scope” of the direct examination. App. Br. at 10. That objection was overruled. It appears that the Defense did not object on the basis that the conversation with LTC Alumbaugh was suppressed. Then the Defense did not object to the four specific questions asked of Appellant that the Government recalled LTC Alumbaugh to impeach. It also did not object to the questions that were asked of LTC Aumbaugh when she was recalled. Rather, the following exchange occurred before LTC Alumbaugh testified on recall:
MJ: … So, it appears as though the statements that you intend to elicit are the statements that the accused told … [LTC] Alumbaugh that [SPC K.W.] kissed him, that the accused told … [LTC] Alumbaugh that [SPC K.W.] kissed and nibbled on his ear, -or did not. I’m sorry. For both of these that he did not say these things. That he did not tell her that [SPC K.W.] grabbed his penis. Those three statements. Is that-
ATC: Did not grab his penis and did not masturbate him for five minutes.
MJ: Correct. Defense, do you have any objection to any of those statements? …
DC: No objection, Your Honor.
Gov’t Br. at 15. And so the first hurdle that Appellant must overcome is the failure to object at trial and whether CAAF will find the issue preserved, forfeited, or waived. When an error is preserved by a timely objection, the burden is on the party that benefited from the error (the Government in this case) to prove that the error was harmless. When an error is forfeited by the failure to object, the burden is on the party claiming error to prove prejudice (through the plain error test). And waiver is the intentional relinquishment of a known right, prohibiting further review. I anticipate that CAAF will treat this objection as forfeited and will apply plain error review to the first issue (requiring the Appellant to establish (1) error that is (2) plain or obvious and (3) results in material prejudice to his substantial rights).
Appellant’s brief makes three significant arguments for prejudicial error. First, Appellant argues that the Government’s cross-examination about the statements to LTC Alumbaugh was an impermissible comment on his right to remain silent:
“When an accused testifies voluntarily as a witness, the accused thereby waives the privilege against self-incrimination with respect to the matters concerning which he or she so testifies.” Mil. R. Evict. 301 (e) (emphasis added). The military judge failed to ensure that the ATC complied with this proscription. The ATC’s cross-examination went beyond the matters elicited during direct, utilized statements that the government previously agreed were inadmissible, and asked questions with.the intent to highlight appellant’s alleged failure to tell his side of the story, an impermissible comment on the accused’s right to remain silent.
App. Br. at 12.
Next, Appellant argues that the Government improperly set Appellant up for impeachment:
The appellant’s decision to testify did not open the door to any and all lines of cross-examination limited only by the government counsel’s imagination. See United States v. Williams, 23 M.J. 362, 367-78 (C.M.A. 1987). When the ATC exceeded the scope of direct, he inappropriately set the appellant up for subsequent rebuttal testimony utilizing the unwarned statements to impeach by contradiction the appellant’s statements the government improperly elicited on cross-examination.
App. Br. at 14.
Finally, Appellant finds prejudice in the facts of the case:
In a close case, where the panel rejected much of the government’s theory of the case (and acquitted PFC Piren of the more serious charge), the credibility of the only two eyewitnesses to the alleged assault was critical. The alleged victim escaped virtually any attack on her credibility by claiming to be asleep during the bulk of the alleged assault. The defense, after all, could not test her credibility as to events of which she claimed she was not aware. On the other hand, the government set the appellant up for impeachment by contradiction by asking him questions on cross-examination about statements that he made during a conversation with LTC Alumbaugh. The defense did not open the door to these questions. The appellant never testified on direct about the sexual assault examination, or anything else, for that matter, after he accompanied the German police back to their station.
Using such improper questioning was an impermissible method for the government to attack the appellant’s credibility in front of the panel. But for the military judge’s error, there was every reason for the panel to find reasonable doubt as to the abusive sexual contact charge as well.
App. Br. at 14-15.
The Government responds by asserting that the Appellant was not allowed to testify in his own defense and also avoid questioning about the suppressed conversation with LTC Alumbaugh. The Government’s brief identifies as a:
flawed legal premise that military jurisprudence allows an accused to take the stand under oath to give his or her version of events, but at the same time purposefully limit the scope of the testimony to avoid opening the door to cross-examination of this same version of events by government counsel.
Gov’t Br. at 22-23 (marks omitted). The Government’s claim is based on the assertion that “when appellant took the witness stand on direct examination he stated (contrary to the testimony of the victim) that SPC K.W. was awake during the entire encounter and that she was the one who initiated sexual contact.” Gov’t Br. at 24. And so the Government’s position is that the cross-examination about the suppressed conversation with LTC Alumbaugh went only to Appellant’s credibility:
One of the best ways to test the credibility of appellant’s in-court testimony is to ask what specific statements he made (or did not make) to those individuals right after the incident took place. All of government’s questions about what appellant said to the various witnesses right after the events in the hotel room, to include LTC Alumbaugh, went to this proper purpose.
Gov’t Br. at 26. The problem with the Government’s argument on this point is that it means that any testimony by Appellant in his own defense would reverse the suppression ruling – an outcome clearly contrary to the rule that only “does not prohibit use of the [suppressed] statement to impeach by contradiction the in-court testimony of the accused.” . M.R.E. 304(b)(1) (2012). The Government’s position is far more broad and would permit use of suppressed statements practically any time an accused testifies in his or her own defense.
The Government’s brief somewhat limits this argument by asserting that “impeachment by omission is a subcategory of impeachment by contradiction.” Gov’t Br. at 27 (marks omitted). The Government’s position is that it was improper to cross-examine Appellant about things that were “not said by [A]ppellant to the various witnesses (including LTC Alumbaugh).” Gov’t Br. at 27 (emphasis in original). But there are two flaws to this argument. First, the Government’s questions to Appellant (and the impeachment by LTC Alumbaugh) were about things that Appellant testified he did say (and that LTC Alumbaugh testified he did not say); that’s impeachment by contradiction, not by omission. Second, the Government’s argument ignores the limited admissibility of post-arrest silence. In particular, the Military Rules of Evidence provide that:
A person’s failure to deny an accusation of wrongdoing concerning an offense for which at the time of the alleged failure the person was under official investigation or was in confinement, arrest, or custody does not support an inference of an admission of the truth of the accusation.
M.R.E. 304(h)(3) (2012), replaced by M.R.E. 304(a)(2) (2013). And the Supreme Court has said:
It goes almost without saying that the fact of post-arrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest. In that situation the fact of earlier silence would not be used to impeach the exculpatory story, but rather to challenge the defendant’s testimony as to his behavior following arrest.
Doyle v. Ohio, 426 U.S. 610, 620 n.11 (1976) (emphasis added). So the mere fact that Appellant did not make a certain statement after the offense is not proof of guilt. Moreover, in this case it was the Government that elicited the contradiction between the testimony of Appellant and LTC Alumbaugh, and it did so over the Defense objection (as exceeding the scope of direct). I think it unlikely that CAAF will endorse this practice.
The Government’s brief also makes an odd argument for harmlessness. Acknowledging that Appellant’s defense was predicated on the affirmative defense of mistake of fact as to consent, the Government asserts:
What appellant could not provide was a rational explanation for why his kissing above SPC K.W.’s vagina instantly clued her into his true identity, while the prior fifteen minutes of kissing his face and stroking his penis did not. SPC K.W. testified that she never kissed appellant or rubbed his penis. It was only after appellant was between her legs and began kissing above her vagina when she recognized that appellant was not her boyfriend.
In short, the only credible version of events was the version as told by the victim. Appellant’s story defied common sense and his fanciful testimony in comparison to SPC K.W.’s credible testimony was more than sufficient convince the panel to convict him of the Abusive Sexual Contact specification. Consequently, even assuming error, appellant has suffered no prejudice in this case.
Gov’t Br. at 29. The obvious rational explanation is KW’s intoxication that impaired her perceptions of what was happening. Appellant asserted mistake of fact as to consent in his defense. For Appellant’s mistake defense to succeed, the members had to believe him. But when the Government introduced his suppressed statements to LTC Alumbaugh on cross-examination, and then recalled LTC Alumbaugh to testify that those statements were never made, it dramatically undercut Appellant’s credibility.
Notably, the rank disparity between Appellant (a Private First Class / E-3) and LTC Alumbaugh is a fact that might support a military-specific application of federal precedent involving impeachment, particularly considering that Appellant’s statements to LTC Alumbaugh were suppressed for failure to provide an Article 31(b) rights advisory under circumstances where a Miranda warning probably wasn’t required. It’s likely that the difference in rank pressured Appellant to talk to LTC Alumbaugh. The difference in rank is also likely to have affected the members’ consideration of the credibility of LTC Alumbaugh (a field grade medical officer) versus that of Appellant (a junior enlisted accused) when deliberating about their contradictory testimony.
This case involves a rather fine analysis of a complicated rule of evidence. However CAAF rules in this case, its opinion will likely provide a good explanation of this impeachment rule for future cases.