UNITED STATES, Appellee
v.
Alvin N. CUENTO, Aviation Structural Mechanic
Second Class
No. 03-0389
Crim. App. No. 200100281
Argued
Decided
CRAWFORD, C.J., delivered the opinion of the Court, in which
GIERKE,
EFFRON, BAKER, and ERDMANN, JJ., joined.
Counsel
For Appellant: Lieutenant Rebecca S. Snyder, JAGC, USNR (argued).
For Appellee: Lieutenant Frank L. Gatto, JAGC, USNR (argued); Commander R. P. Taishoff, JAGC, USN (on brief); Lieutenant Ross W. Weiland, JAGC, USNR.
Military Judge: C. R. Hunt
THIS OPINION IS SUBJECT TO
EDITORIAL
CORRECTION BEFORE FINAL PUBLICATION.
Chief Judge CRAWFORD
delivered the opinion of the Court.
Before a general
court-martial of officers and enlisted members, pursuant to his pleas,
Appellant
was convicted of assault consummated by battery on a child under the
age of 16
years, in violation of Article 128, Uniform Code of Military Justice
[hereinafter UCMJ] 10 U.S.C. § 928 (2000).
Contrary to his pleas, he was convicted of two specifications of
indecent acts with a child under the age of 16 years, in violation of
Article
134, UCMJ 10 U.S.C. § 934 (2000). The
convening authority approved the court’s sentence of a dishonorable
discharge
and four years’ confinement. The Court
of Criminal Appeals affirmed the findings and sentence.1
This
Court
granted review of the following issues:
I.
WHETHER
THE
II.
WHETHER
APPELLANT’S CONFESSION WAS INVOLUNTARY WHEN
III.
WHETHER
THE LOWER COURT ABUSED ITS DISCRETION
WHEN IT REFUSED TO CONDUCT A PLAIN ERROR ANALYSIS AND FOUND THAT ANY
POTENTIAL
ERROR WAS HARMLESS BEYOND A REASONABLE DOUBT WHERE THE GOVERNMENT
VIOLATED
APPELLANT’S SIXTH AMENDMENT RIGHT TO CONSULT WITH COUNSEL BY ELICITING
TESTIMONY THAT APPELLANT RECANTED HIS ADMISSION ONLY AFTER CONSULTING
WITH AN
ATTORNEY AND BY ARGUING TO THE MEMBERS THAT APPELLANT’S RECANTATION WAS
FALSE
BECAUSE IT WAS MOTIVATED BY APPELLANT’S CONSULTATION WITH AN ATTORNEY.
For
the
reasons set forth below, we affirm the decision of the Navy-Marine
Court of
Criminal Appeals with respect to Issues II and III.
As to Issue I, we
return the record to the court below to order a fact-finding hearing
pursuant
to United States v. DuBay,2 for the purpose of determining
the credibility of J’s post-trial recantation.
FACTS
In
August
1998, following J’s allegations that Appellant had sexually assaulted
her in
October 1977, Appellant was removed from the family home and twice
interviewed
by the San Diego Police. He told the
police that, while play-wrestling with J, he accidentally caught his
hand in
J’s underwear and unintentionally penetrated her vagina with his finger. In September 1999, the local District
Attorney declined prosecution and the Navy Criminal Investigative
Service
(NCIS) assumed control of the investigation.
The
California Child Protective Service, in coordination with the Navy
Family
Advocacy Program, devised a “reunification plan,” by which Appellant,
after
appropriate therapy, could rejoin his family.
Part of the therapy was for Appellant to admit to J’s
allegations. In fact, one of the rules of
the therapy
group provided that any participant who did not “believe that a
molestation
occurred” would not be allowed to complete the course of therapy
necessary to
be reunited with his or her family. To
this end, Appellant attended group counseling sessions with Mr. Martin,
a
psychotherapist, from summer 1999 to spring 2000, and in January and
February
2000. Appellant also saw Dr. Barnes, a
clinical psychologist, for individual sessions.
Although
Appellant had never admitted to the police that J’s allegations were
true,
sometime in February 2000, he told Mr. Martin that he had done what J
said he
had done. About a week thereafter, at NCIS’s invitation, Appellant went to NCIS, was
advised of
his rights, waived them, and gave the same version of events he had
given to
civilian police; however, when Special Agent (SA) Thomas pointedly
expressed
disbelief, Appellant “broke down” and admitted that in October 1997, he
had
twice put his finger in J’s vagina.
After confessing, Appellant expressed great relief and signed
the
written confession admitted as Prosecution Exhibit 20.
Also
in late
February 2000, on his eighth visit to Dr. Barnes, Appellant admitted
that J’s
allegations were true. At their next
meeting, Appellant offered no retraction or contradiction, but on his
tenth
visit to Dr. Barnes, Appellant said he had spoken with a lawyer, that
he had
been lying to Dr. Barnes at the last two sessions, that he was afraid
of going
to jail, and that he wanted to change his story.
DISCUSSION
A. Voluntariness of Appellant’s Confession.
Appellant
argues that his confession to NCIS was involuntary “because the
government
would not allow him to be reunited with his children until they reached
adulthood
if he did not admit his guilt before the termination of his second
group
therapy cycle, which was to end only days after he confessed.” We disagree and find Appellant’s statement
was both voluntary and independent of his statement to Mr. Martin.
Voluntariness
of a confession is a question of law that an
appellate court independently reviews, de
novo. The necessary inquiry is whether the
confession is the product of an essentially free and unconstrained
choice by
its maker. If, instead, the maker’s will
was overborne and his capacity for self-determination was critically
impaired,
use of his confession would offend due process. 3
“As this Court ruled in one of its earliest opinions, a confession is not automatically inadmissible, even though it was made after another confession which was clearly involuntary. The prosecution must rebut the presumption that the later confession was the result of the same influence which led to the prior confession.”4
When
there
are multiple admissions by an accused and the voluntariness
of a second or subsequent statement is challenged on the grounds that
it is
tainted by an earlier, illegally obtained
statement,
we have looked to the Supreme Court for guidance:
In
Oregon v. Elstad
the Supreme Court distinguished between two classes of "involuntary"
statements and between the impact of each
on a
subsequent interrogation. Where a
confession is obtained at a lawful interrogation that comes after an
earlier
interrogation in which a confession was obtained due to actual
coercion,
duress, or inducement, the subsequent confession is presumptively
tainted as a
product of the earlier one. On the other
hand, where the earlier confession was "involuntary" only because the
suspect had not been properly warned of his panoply of rights to
silence and to
counsel, the voluntariness of the second
confession
is determined by the totality of the circumstances. The
earlier, unwarned statement is a factor in
this total picture, but it does not presumptively taint the subsequent
confession.5
When
a prior statement is actually coerced, the time that
passes between confessions, the change in place of interrogations, and
the
change in identity of the interrogators all bear on whether that
coercion has
carried over into the second confession.
Only
those
statements that are “actually coerced” require application of the more
stringent test generally described in Military Rule of Evidence 304(b)(3) [hereinafter M.R.E.] , as opposed to a
showing of voluntariness by totality of
the circumstances.6
While a so-called “cleansing statement” is a factor to consider in evaluating the voluntariness of a confession made following a prior, unwarned statement, this Court has held that “[w]here there are successive statements, it is not a precondition to the admission of a properly obtained statement, that the accused be informed that a previous statement cannot be used against him.”7 However, “[i]f there has been an earlier unwarned statement, ‘the absence of a ‘cleansing’ warning before the subsequent statement’ is one of the ‘circumstances to be considered in determining voluntariness.’”8
In determining whether Appellant’s NCIS statement was voluntary, we will assume, arguendo, that his earlier statement was produced by the coercive effect of the prerequisites placed on Appellant’s reunification with his family by the California Child Protective Service. “Evidence that was obtained as a result of an involuntary statement may be used when the evidence would have been obtained even if the involuntary statement had not been made.”9 “Even evidence challenged as “derivative” from an involuntary statement is admissible ‘if the military judge finds by a preponderance of the evidence that’ it ‘was not obtained by use of the statement, or that the evidence would have been obtained even if the statement had not been made.”10
Evaluating voluntariness, attenuation, and inevitability of Appellant’s NCIS statement, we give particular weight to the following facts:
At the time of his NCIS statement, Appellant was 37 years old, with over 18 years of service in the Navy. The NCIS statement was made at the NCIS office, to which Appellant had been invited, but not ordered to appear. Appellant was not in custody. Appellant’s statement to Mr. Martin was made at Mr. Martin’s office, in the course of treatment in which Appellant had been ordered to participate. The NCIS statement was made about seven days after Appellant’s first admission to Mr. Martin, with significant time for cool reflection and consultation with an attorney.
When SA Nelson invited Appellant to come to NCIS, she called him directly, rather than involving his command; consequently, Appellant arrived at NCIS without escort. Neither SA Nelson nor SA Thomas participated in Appellant’s statement to Mr. Martin, nor were the agents aware of the “reunification plan.” At NCIS, Appellant was oriented to his surroundings by SA Nelson and SA Thomas, and told that he was there voluntarily and could leave at any time.
SA Nelson advised Appellant of his rights, but did not give a “cleansing warning.” Appellant indicated that he understood his rights and initialed beside each on the rights waiver form. At no time did Appellant ask for an attorney or indicate that he wanted to leave or stop answering questions. While the NCIS agents made reference to Appellant’s statement to civilian police (alleging an accidental touching), no mention was made of Appellant’s prior admission to Mr. Martin. No mention was made of the Child Protective Service’s orders or conditions.
Before and during the interview, neither of the agents made any promises, inducements, or threats. Although the agents used no unlawful coercion, when Appellant first told his story in accidental terms, SA Thomas told Appellant that he did not believe him. Upon hearing this, Appellant confessed that he had done what had been alleged. Appellant chose to have SA Nelson write his statement, rather than Appellant writing it himself.
After rendering the confession, Appellant said he felt that a huge burden had been lifted from his shoulders. The statement process was very brief, lasting approximately 90 minutes. Appellant read, made changes to, initialed, swore to, and signed the statement.
Under the circumstances of this case, particularly the intervening events between the first and second statements, the Government has carried its burden of demonstrating that the first statement did not taint the second statement, and that the second was voluntary. The trial judge did not err in admitting the NCIS statement over defense objection.
B. Comment
on
Appellant’s Right to Counsel.
During
the
direct examination of Dr. Barnes, the trial counsel engaged the witness
as
follows:
Q:
Okay. Now, when, if ever, did the
accused actually recant his version?
A: The
following week, so two weeks after his initial disclosure of molest he came in a state of agitation and told me that
he wanted
to again change his story.
Q:
Well, let’s talk in a little bit more detail about exactly what
he told
you on that date. What did he tell you?
A. He
told me several things, that he had met with his attorney and he
was told
that — let me back up.
Q.
Okay.
A. I’d
like to strike that, if I could.
It’s important to get the sequence of events.
He told me that he had been lying to me for
the previous two weeks and that he now wanted to set the record
straight one
more time, that he reverted to the allegation that the abuse to his
daughter
occurred in an accidental fashion, as he had reported to me for the
first seven
weeks of therapy.
The trial counsel asked one
more innocuous question of the witness and concluded his direct
examination. We note that he did not
follow the witness’ reference to an attorney consultation with
additional
questions. However, in cross-examination,
the trial defense counsel immediately did.
Q. . .
. You said you met with him two weeks later and he went back to the
story he
had originally gave; that was the wrestling story, right?
A.
That is correct.
Q. And
you mentioned he had met with his attorney?
A.
Yes.
Q.
Would that be me?
A.
Yes, it would.
Q.
Okay. And the first time you met
with him was 28 February, right?
A.
That’s correct.
.
. . .
Q.
Okay. Would it surprise you to
know, sir, that Petty Officer Cuento did
not meet
with his attorney until after [March 13th]?
A. It
would only surprise me that I have the date wrong.
When he met with me and revised his story, he
had met with an attorney. It may have
been you, sir, but he had met with an attorney, at least that’s what he
reported to me at that time, and he started expressing fear that he
would be
placed in the brig. That was a new story
to me on that day.
Q. Do
you know of any other attorney that he’s ever had?
A. I
don’t know.
During the trial counsel’s closing
argument on findings, he made the following comments:
Members,
you’ve heard from Dr. Barnes. He came in
last Friday, and he gave you a
real good glimpse as to exactly what was going on here.
And if you bring in all the other evidence
that you’ve heard, it makes perfect sense.
You’ve got a man that comes into his office on the 28th of
February,
four days after he speaks with NCIS, on the 28th of February, and says,
“I’m
guilty.” Another week goes by, on the
6th of March or sometime around there, he comes back into the office
and says,
“Doc, I’d like to talk with you a little bit more about it. I’m guilty, and the reason that I’m telling
you now is because the burden is so great.”
An then another week goes by. He comes back in, and he says, “Well, now,
I’ve spoken with my defense attorney; and now I’m – I don’t want to
be
guilty anymore. I’m going to
recant. No longer am I going to say I
did this.”11
We need not decide whether the court below conducted a plain error analysis, as we conclude that even if the trial counsel erred in his examination of Dr. Barnes or his argument suggesting that Appellant recanted after having talked with his lawyer, any error was harmless. Because we also assume without deciding that the alleged error was of constitutional dimension, we conclude that any error was harmless beyond a reasonable doubt.
The
members had an
opportunity to hear and personally observe
each
witness and we assume that the members applied their "common sense and [their] knowledge of
human nature
and of the ways of the world."12 The defense
did not object to Dr. Barnes’
statement or to trial counsel’s argument.
In this context, we have no difficulty concluding that if there
was
error, it was harmless beyond a reasonable doubt.
C. The Court
of Criminal Appeals’ Failure to
Order a Fact-finding Hearing under
For the reasons set forth
below, we return the record of trial to the Navy-Marine Court of
Criminal
Appeals to order a DuBay hearing in
which a
military judge will determine the credibility of J’s recantation of her
trial
testimony. The record of those
proceedings will then be evaluated by the Court of Criminal Appeals in
determining whether to grant Appellant’s petition for new trial.
On
Article 73, UCMJ,15 permits an accused to petition for a new trial within two years of the convening authority’s action. Rule for Courts-Martial 1210(f) [hereinafter R.C.M.] provides as follows:
(f) Grounds for new trial.
(1) In general. A new trial may be granted only on grounds of newly discovered evidence or fraud on the court-martial.
(2) Newly discovered evidence. A new trial shall
not be granted on the grounds of newly discovered evidence unless the petition shows that:
(A) The evidence was discovered after the trial;
(B) The evidence is not such that it would have been discovered by the petitioner at the time of trial in the exercise of due diligence; and
(C) The newly discovered evidence, if considered by a court-martial in the light of all other pertinent evidence, would probably produce a substantially more favorable result for the accused.
In
United States v. Rios,16
this Court discussed the Manual for Courts-Martial,
Petitions for new trial based on a witness’s
recantation “are not viewed favorably in the law.”
Recantations of trial testimony are viewed by
federal courts with "extreme suspicion."
Our standard of review on petitions for new
trial is deferential. We review only for
an abuse of discretion.
In
When
presented with a petition for new trial,
the reviewing court must make a credibility determination, insofar as
it must
determine whether the “newly discovered evidence, if considered by a
court-martial in the light of all other pertinent evidence, would
probably
produce a substantially more favorable result for the accused.” RCM 1210(f)(2)(C).
The reviewing court does not determine whether the proffered evidence
is true;
nor does it determine the historical acts. It merely decides if the
evidence is
sufficiently believable to make a more favorable result probable.
We find a Court of Criminal Appeals has abused its discretion when we reach “a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of the relevant factors.”18 This is a textbook standard and involves “more than a mere difference of opinion.”19 After noting the standard with which to measure Appellant’s petition for new trial and the circumstances under which J recanted her testimony, and rather than ordering a fact-finding hearing to assess J’s credibility, the Court of Criminal Appeals assessed J’s credibility on the strength of her post-trial affidavit. The court found that Appellant had “not met his burden of showing that J’s trial testimony was false.”20 In so doing, the Court of Criminal Appeals noted that Appellant’s case is not a simple “swearing contest,” being instead a case in which the victim’s trial testimony is corroborated by Appellant’s NCIS statement and his admissions to counselors. While those distinctions are factually accurate as far as they go, they fail to account adequately for Appellant’s repudiation of his prior statements, his facially rational explanation for having made the incriminating, but purportedly false statements, and the potential effect that mutually corroborative denials by Appellant and J may have at any future proceedings.
“[W]hen the alleged perjurer
is the prosecutrix herself,” we remain
“disinclined”
to burden Appellant with mechanical application of a rigorous standard.21 Under the
unique circumstances of this case,
including the lack of any corroborating physical evidence, that
Appellant, both
before and during trial, recanted his NCIS statement and his admissions
to Dr.
Barnes and Mr. Martin, and that J’s testimony was the only other
evidence
against Appellant, we find that the weight of J’s recantation cannot
adequately
be measured without a DuBay hearing
before a
military judge at which J would testify under oath and be subject to
cross-examination.
DECISION
The decision of the United
States Navy-Marine Corps Court of Criminal Appeals is affirmed as to
Issues II
and III. As to Issue I, the decision of
the court is reversed and returned to the Judge Advocate General of the
Navy
for submission to a
convening authority for a DuBay
hearing.
Following that hearing, the record should be returned to the
Navy-Marine
Corps Court of Criminal Appeals for a determination of whether “[t]he
newly discovered evidence, if considered by a court-martial in the
light of all
other pertinent evidence, would probably produce a substantially more
favorable
result for the accused.” See
1
2 17 C.M.A. 147, 37
C.M.R. 411 (1967).
3 United
States v. Bubonics, 45 M.J. 93, 94-95
(C.A.A.F. 1996)(citations omitted).
4 United States
v. Spaulding, 29 M.J. 156, 160 (C.M.A. 1989)(citing
United States v. Monge, 1 C.M.A.
95, 2 C.M.R.
1 (1952)).
5
6 United
States v. Benner, 57
M.J. 210 (C.A.A.F. 2002); United States v. Steward, 31 M.J.
259, 264
(C.M.A. 1990)(citing Spaulding, 29
M.J. at 156;
United States v. Ravenel, 26 M.J.
344 (C.M.A.
1988)).
7
8 United
States v. Ford, 51
M.J. at 451 (quoting United States v. Lichtenhan,
40 M.J. 466, 470 (C.M.A. 1994)).
10 Spaulding,
29 M.J. at 162
(citing M.R.E. 304(b)(3)).
12 United
States v. Rivera, 54 M.J.
489, 491 (C.A.A.F. 2001).
13 17 C.M.A. 147, 37
C.M.R. 411 (1967).
17 49 M.J. 64, 69
(C.A.A.F. 1998).
18 United
States v. Houser, 36
M.J. 392, 397 (C.M.A. 1993)(citation omitted).
19