IN THE CASE OF
UNITED
STATES, Appellee
v.
Javier
No.
03-0093
Crim. App.
No.
9900559
Argued
Decided
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.
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.
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Appeals affirmed in an unpublished summary opinion.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 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.
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 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
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
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.
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
The
second document, a sworn statement
given by Ms. AM to the CID on
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
With
respect to the indecent assault
allegation, Ms. AM testified that Appellant
repeatedly
attempted to engage her in 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 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
Appellant
also testified that during his
deployment in
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
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
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, 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.”
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
[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. 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 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.
CRAWFORD, Chief Judge
(concurring in the result):
See
my separate opinion in United States
v. Roberts,