Crim. App. No. 20010713
BAKER, J., delivered the opinion of the Court, in which GIERKE, C.J., and CRAWFORD, EFFRON, and ERDMANN, JJ., joined.
For Appellant: Captain Rob W. MacDonald (argued); Colonel Mark Cremin, Lieutenant Colonel Mark Tellitocci, and Major Allyson G. Lambert (on brief); Captain Charles L. Pritchard Jr.
For Appellee: Captain Isaac C. Spragg
Steven T. Salata, Lieutenant Colonel Mark L.
Military Judge: Patrick J. Parrish
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
Judge BAKER delivered the opinion of the Court.
to his plea, Appellant was convicted by a military judge before a
court-martial of one specification of wrongful distribution of ecstasy1
in violation of Article 112a, Uniform Code of Military Justice (UCMJ)
§ 912a (2000).2 The
adjudged and approved sentence provided for a bad-conduct discharge,
confinement for six months, forfeiture of all pay and allowances, and
to the lowest enlisted grade, E-1. The
United States Army Court of Criminal Appeals affirmed in a short-form
curiam opinion. United
and Private Dominic I. Guisti lived in the same barracks at
an investigation by the Criminal Investigation Command in November
was interrogated and made a statement implicating himself
and other soldiers, including Appellant, in a variety of drug offenses. In this statement, although Guisti admitted
to distributing ecstasy to Appellant at Studio 315, he did not indicate
Appellant had distributed ecstasy to him.
in March, Guisti negotiated a plea agreement and was subsequently tried
was arraigned on
on the merits in Appellant’s court-martial began on
Isn’t it true, Private Guisti,
that you saw PFC [Private First Class]
A. Yes, that is true.
Q. The prosecutor showed you that when he was interviewing you for this case, isn’t that true?
A. Yes, ma’am.
Q. So you knew what you were looking at before you came in here?
A. Yes, I did, ma’am.
On appeal, Appellant argues that this line of questioning indicates that Guisti’s testimony was derived from his viewing of Appellant’s statement the previous day, and not from his independent knowledge and recollection of Appellant’s conduct. However, the record contains other additional material relevant to the assigned issue. After Appellant’s colloquy with defense counsel, the military judge questioned Guisti regarding the events at Studio 315:
Q. When was the first time that you remembered that the accused gave you this pill of ecstasy? The second time that you just described, that the accused went and got these pills – when was the first time you happened to remember that that actually happened?
A. It was after the statements I made, sir.
Q. So it was sometime after 26 March, that’s when you first remember that happening?
A. Yes, sir. It never came up in any of the previous questioning -– the previous statements that I gave.
. . . .
Q. So is today, in court, the first time you told that to anybody?
A. As far as on the record, sir.
Q. But prior to today, have you told anybody that the accused gave you this pill?
A. As far as being on the record?
Q. Well, not under oath –
A. I told the defense attorney when she was questioning me before the Article 32.
Immediately following this exchange, defense counsel examined Guisti as follows:
Q. That conversation that you had, where you disclosed you’d had this memory regarding PFC Arnold and distribution of ecstasy, that occurred about two weeks ago, correct?
A. No, that’s the first time I told you about it.
Q. About two weeks ago?
Later during the trial, defense counsel argued that Guisti’s testimony was inadequate corroboration for Appellant’s admissions to ecstasy distribution at Studio 315 because Guisti’s testimony was inconsistent and untruthful. However, defense counsel did not contend that Guisti’s corroborating testimony was not independent evidence. Appellant now contends that Guisti’s testimony was derived exclusively from reading Appellant’s confession prior to Appellant’s trial and therefore, “cannot serve as substantial independent evidence to corroborate that very same confession.”
M.R.E. 304(g) provides:
An admission or a confession of the accused may be considered as evidence against the accused on the question of guilt or innocence only if independent evidence . . . has been introduced that corroborates the essential facts admitted to justify sufficiently an inference of their truth.
Emphasis added. Independent evidence is evidence that is not
based on or derived from the accused’s extrajudicial statements. Opper v.
Appellant correctly frames the legal issue presented. If Guisti’s testimony was solely derived from his review of Appellant’s sworn statement, his testimony could not independently serve to corroborate Appellant’s statement. However, the record does not support Appellant’s factual conclusion.
The record reflects that Guisti was shown and read Appellant’s statement the day before the trial. The military judge questioned Guisti to discern whether his description of the events at Studio 315 was derived from Appellant’s statement or was derived, in part or in whole, from his own independent recollection. When asked by the military judge when he remembered that Appellant had given him an ecstasy pill, Guisti said, “I told the defense attorney when she was questioning me before the Article 32.” The reopening of Appellant’s Article 32 investigation relevant to the ecstasy distribution offense occurred on July 16. Defense counsel, during the Article 32 investigation, responded with the following question to Guisti: “[T]hat occurred about two weeks ago, correct?” Guisti answered, “Yes.”
If, as the record reflects, Guisti implicated Appellant prior to the reopening of Appellant’s Article 32 investigation on July 16, his subsequent testimony must, at least in part, be derived independently of Appellant’s statement, which he read the day before trial. Further, Guisti’s response to the military judge indicates that he implicated Appellant regarding the essential fact contained in Appellant’s confession –- distribution of ecstasy at Studio 315. As a result, Guisti’s testimony provides independent and sufficient corroboration of Appellant’s confession and the military judge did not err in admitting the confession.
The decision of the United States Army Court of Criminal Appeals is affirmed.
1 This drug is formally known as 3, 4-methylenedioxymethamphetamine or MDMA.
THE MILITARY JUDGE PLAINLY
ERRED BY ADMITTING APPELLANT’S CONFESSION BASED ON TESTIMONY DERIVED
EXCLUSIVELY FROM THE CONFESSION ITSELF, WHICH FAILED TO SATISFY THE