UNITED
STATES, Appellee
v.
Arthur
MASON, Jr., Staff Sergeant
No.
03-0259
Crim. App.
No.
9601811
Argued
Decided
CRAWFORD, C.J., delivered the opinion of
the Court, in which GIERKE, EFFRON, BAKER, and ERDMANN, JJ., joined.
Counsel
For Appellant: Captain Kathy
Martin (argued); Colonel
Robert D. Teetsel, Lieutenant
Colonel Mark Tellitocci, and Major
Allyson G. Lambert (on
brief); Lieutenant Colonel E. Allen Chandler, Jr., Major
Jeanette K.
Stone, and Captain Linda A. Chapman.
For Appellee:
Captain Ryan R. McKinstry (argued);
Colonel Lauren B. Leeker, Lieutenant
Colonel Margaret B. Baines,
and Captain Mark A. Visger (on
brief); Captain
Tami L. Dillahunt.
Amicus Curiae for Appellee: Marc A.
DeSimone, Jr. (law student) (argued); Susan
J.
Hankin, Esq. (supervising attorney) and
Michael
Haslup (law student) (on brief) – for
the University
of Maryland School of Law.
Military Judges: G. O. Varo (first
trial); R. F. Holland (retrial).
THIS OPINION IS SUBJECT TO
EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
Chief
Judge CRAWFORD delivered the opinion
of the Court.
On
November 2, 1996, a general
court-martial composed of officer and enlisted members convicted
Appellant,
contrary to his pleas, of rape, aggravated assault with a dangerous
weapon,
burglary, and communication of a threat, in violation of Articles 120,
128,
129, and 134, Uniform Code of Military Justice [hereinafter UCMJ], 10
U.S.C. §§
920, 928, 929, and 934 (2000). The
convening authority approved the adjudged sentence to a dishonorable
discharge,
confinement for eight years, forfeiture of all pay and allowances, and
reduction to pay-grade E-1.
On
On
On
I.
WHETHER THE MILITARY JUDGE ERRED IN
DENYING THE DEFENSE MOTION TO SUPPRESS BLOOD TEST RESULTS AND RELATED
DNA
EVIDENCE. (A) WAS THERE A BASIS FOR
CONCLUDING THAT PROBABLE CAUSE EXISTED? (B) DID THE AGENTS PROVIDE
FALSE AND
MISLEADING INFORMATION AND OMIT MATERIAL FACTS WHEN SEEKING THE WARRANT
THAT
WAS ISSUED TO OBTAIN A SAMPLE OF APPELLANT’S BLOOD?
II.
WHETHER THE MILITARY JUDGE ERRED IN
OVERRULING THE DEFENSE OBJECTION TO THE GOVERNMENT’S QUESTION TO ITS
DNA EXPERT
REGARDING WHETHER THE DEFENSE HAD REQUESTED THE EVIDENCE BE RETESTED.
DID THIS
QUESTION IMPROPERLY SHIFT THE BURDEN TO THE DEFENSE TO PROVE
APPELLANT’S
INNOCENCE?
III.
WHETHER THE
For
the reasons set forth below, we affirm the
findings and sentence.
FACTS
The
Army Court of Criminal Appeals summarized the preliminary facts of the
case as
follows:
At
0529 [on
Mrs.
P
called her husband at work at about 0537 and told him she had just been
raped. She then called the military
police. At about 0545, first the military
police and
then the U.S. Army Criminal Investigation Command (CID) special
agents
arrived at SPC P's quarters. Mrs. P
described her assailant to CID and at the retrial, as "a [B]lack [sic]
male,
around 5'6" to 5'7" tall, stocky build, around 150 to 160 pounds; he
had razor bumps, a big nose. . . . [and] a
slight
mustache." He was dressed in an
Army physical training (PT) uniform with a black wool cap. Mrs. P was unable to
see her attacker's teeth, nor did she describe any other distinguishing
features of the rapist. Appellant is a
Black [sic] male, 5'5" tall, and weighed 172 pounds. At
the time of the rape, he had a slight
mustache and an intermittent problem with razor bumps.
Neither SPC P nor Mrs. P knew appellant.
While
Mrs.
P was being raped, she tried to remove her assailant's cap to get a
better look
at his face. He knocked her hand away, covered her eyes, and told her
not to
look at him. Thereafter, he told her to
roll over onto her front, so her face was in her pillow. He
continued to engage in sexual intercourse
until he ejaculated. Mrs. P's bedroom
was dark; she is near-sighted and was not wearing her glasses during
the rape.
.
. . .
Mrs.
P's
vagina was swabbed as part of the rape kit procedure and the swabs and
her
panties were sent to the [United States Army Criminal Investigation
Laboratory
(USACIL)] for testing. At USACIL, lab
personnel found semen on Mrs. P's panties and on the vaginal swabs. Testing revealed that the rapist had
blood-type B, which matched appellant's blood type. Blood-type
B is shared by approximate 19% of
the total Black [sic] population. Specialist
P and three other possible suspects did not have blood-type B.
Mrs.
P was presented with several line-ups
as an opportunity to identify her assailant.
During a physical line-up which did not include Appellant, Mrs.
P
identified an individual, whom she knew socially, as closely resembling
her
rapist. Mrs. P noted that the individual
was not actually the rapist. Mrs. P was
also shown Appellant’s picture in a photographic line-up, but did not
identify
him as the rapist.
Nearly
two months after the rape, early on the morning of
In
August, a military police investigator reported to the CID that
Appellant
matched the assailant’s description provided by Mrs. P.
The CID subsequently obtained a search authorization
from a military magistrate to seize a sample of Appellant’s blood. The sample was sent to the crime laboratory,
which matched Appellant’s blood to the semen evidence obtained from
Mrs. P. As a result of the match,
Appellant was
charged with the crimes against Mrs. P.
DISCUSSION
I. The Military Judge did not Err in
Denying the Defense Motion to Suppress Blood Test Results and Related
DNA
Evidence
The
search authorization for Appellant’s blood sample was issued by Captain
Oclander at
Appellant
was identified as the owner of a car that was hastily driven away from
the
Appellant
was a stocky, black male between five foot four and five foot six, and
therefore matched the general description of the rapist provided by
Mrs. P.
Appellant’s
military specialty required that he be issued Nomex
gloves, and a Nomex glove had been left by
the
assailant at the rape scene.
Appellant
lived on post approximately one to two blocks from where the rape
victim lived.
Appellant
had type B blood, which was the blood type of the person who left semen
in Mrs.
P.
Agent
Bruce based his affidavit and request in part on information
he obtained from a CID agent assigned to the case.
At trial, Captain Oclander
was asked which specific facts were important to her when she issued
the search
authorization. She responded:
The
description was important, the Nomex glove
was important, the location of his residence in
relation to the victim’s residence, the blood type in relation to the
assailant’s blood type, and the fact that because of his being seen at
the
Child Development Center on several occasions would have given him
perhaps an
opportunity to have been at the scene that day.
Appellant
moved at trial to suppress his
blood sample from evidence, arguing that the authorization issued to
obtain the
sample was invalid because the magistrate lacked probable cause to
issue the authorization,
and the CID omitted material exculpatory information from the affidavit
presented to the magistrate in support of the authorization. The judge denied Appellant’s motion to
suppress, concluding as follows:
Assessing
all of these things from the perspective of whether there’s probable
cause,
with all of these clarifications and amplifications that the defense
complains
were left out of the information provided, is not only sufficient, in
my
judgment to provide probable cause, but it is more than a basis for
reasonable
belief that if Staff Sergeant Mason was examined, evidence might be
obtained.
Further,
as the 11th Circuit formulation cited by the defense, it provides more
than a
fair possibility of finding such evidence by a search of Staff Sergeant
Mason’s
person for blood samples or other bodily fluids. That’s
not to say that it rises to the level
of being clear and convincing evidence of his guilt, but that is not
the
standard for judging this.
The
approach that I’ve just used is taken by extension from M.R.E.
311(g)(2), but
it is also taken from the case cited by the defense, which is included
in the
record as an appellate exhibit from yesterday’s session, State of
South
Carolina versus Missouri, where the court excluded the false
information
and inserted the exculpatory information and evaluated whether, taken
in that
light, there remained a substantial basis upon which the Magistrate
could have
found probable cause to issue the warrant.
Applying that analysis, I don’t believe that there’s any reason
that
probable cause cannot be found within this information.
And my conclusion of law is that there was
probable cause. Accordingly, the defense
motion to suppress is denied.
This
Court now reviews for an abuse of
discretion the military judge’s decision to admit the blood sample into
evidence.
A. The
Magistrate had Probable
Cause to Issue the Search Authorization for Appellant’s Blood Sample
Appellant
first avers that the information based on which the military magistrate
issued
the search authorization for Appellant’s blood sample was insufficient
to
establish probable cause. We disagree.
“Nonconsensual
extraction of blood from an individual may be made pursuant to a valid
search
authorization, supported by probable cause.”
United States v. Carter, 54 M.J. 414, 418 (C.A.A.F. 2001)(citing Military Rule of Evidence 312(d)
[hereinafter
M.R.E.]). M.R.E. 315(f)(2)
provides that “[p]robable cause to search
exists when
there is a reasonable belief that the person, property, or evidence
sought is
located in the place or on the person to be searched.”
A probable cause determination is precisely
a practical,
common-sense decision whether, given all the circumstances
set forth
in the affidavit before him, including the “veracity” and “basis of
knowledge”
of persons supplying hearsay information, there is a fair
probability
that contraband or evidence of a crime will be found in a particular
place.
Illinois v. Gates,
462
Importantly,
“a determination of probable
cause by a neutral and detached magistrate is entitled to substantial
deference.” United States v. Maxwell,
45 M.J. 406, 423 (C.A.A.F. 1996)(quoting United
States v. Oloyede, 982 F.2d 133, 138
(4th Cir.
1993)). “[R]esolution
of doubtful or marginal cases . . . should be largely determined by the
preference . . . [for] warrants. . . . Close calls will be resolved in
favor of
sustaining the magistrate's decision.” United
States v. Monroe, 52 M.J. 326, 331 (C.A.A.F. 2000)(quoting
Maxwell, 45 M.J. at 423). “A
grudging or negative attitude by reviewing courts towards warrants . .
. is
inconsistent with the Fourth Amendment's strong preference for
searches conducted
pursuant to a warrant.” Gates,
462
In
reviewing a probable cause
determination, courts should consider “the information made known to
the
authorizing official at the time of his decision . . . [which] must be
considered in the light most favorable to the prevailing party.” Carter, 54 M.J. at
418 (citations omitted). The
magistrate could also consider information known to her personally. M.R.E. 315(f)(2)(C). Thus, the key inquiry is whether all the
information presented in the affidavit and orally by CID agent Bruce or
known
to the magistrate personally, considered cumulatively, was sufficient
to show a
fair probability that evidence of a crime would be found in the place
to be
searched – in this case, DNA evidence found in Appellant’s blood. “[C]ourts should
not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense,
manner.”
The
military magistrate testified that the
following evidence influenced her probable cause determination:
The
description was important, the Nomex glove
was important, the location of his residence in
relation to the victim’s residence, the blood type in relation to the
assailant’s blood type, and the fact that because of his being seen at
the
Child Development Center on several occasions would have given him
perhaps an
opportunity to have been at the scene that day.
We agree with the
military judge that, in noting the totality of these circumstances and
applying
her common sense, the magistrate had a substantial basis to conclude
that
probable cause existed. Indeed, the
information based on which the magistrate issued the search
authorization,
considered cumulatively, supported a reasonable belief that evidence of
a
crime, in the form of DNA, would likely be found in Appellant – who had
the
physical features and blood type of the rapist, who was known to have
owned
gloves similar to those left at the crime scene, who lived near the
victim, and
who was identified as the owner of a car seen near the crime site at
the same
time of day as the crime, albeit almost two months later, thus “giv[ing] [Appellant]
perhaps an
opportunity to have been at the scene that day.”
Accordingly,
we find no error in the
military judge’s denial of Appellant’s motion to suppress the blood
sample on
the grounds that probable cause was lacking.
United States v. Allen, 53 M.J. 402, 408 (C.A.A.F. 2000)(military judge’s findings of fact on probable
cause “are
binding unless they are clearly erroneous”).
B. Appellant
has Failed to
Demonstrate that the Information Omitted from the Affidavit Would Have
Extinguished
Probable Cause had it been Included
Appellant
also asserts that the CID
intentionally or recklessly omitted material information from the
affidavit
supporting the search authorization, thereby rendering the
authorization
invalid. We disagree.
M.R.E.
311(g)(2) addresses
a motion to exclude evidence obtained from a search authorization which
allegedly contained false information.
The rule provides:
If
the defense makes a substantial
preliminary showing that a government agent included a false statement
knowingly and intentionally or with reckless disregard for the truth in
the
information presented to the authorizing officer, and if the
allegedly false
statement is necessary to the finding of probable cause, the
defense, upon
request, shall be entitled to a hearing.
M.R.E.
311(g)(2) (emphasis added).
“[I]f [the defense shows intentional or
reckless disregard], and if, when material that is the subject of the
alleged
falsity or reckless disregard is set to one side, there remains
sufficient
content in the warrant affidavit to support a finding of probable
cause, no
hearing is required.” Franks,
438
Importantly,
for an accused to receive a
hearing, and therefore potential relief, on these grounds, the defense
must
demonstrate that the omissions were both
intentional
or reckless, and that their hypothetical inclusion would
have
prevented a finding of probable cause.
Appellant
contends that the CID agents intentionally or recklessly withheld the
following
material, exculpatory evidence:
During
a physical line-up that did not include Appellant, Mrs. P identified
another
soldier, whom she knew socially, as closely resembling the rapist,
though she
stated he was not actually the rapist.
During a photographic line-up that did include Appellant’s
picture, Mrs.
P was unable to identify the rapist.
A
latent fingerprint lifted from the inside front doorknob at the P’s
residence
did not match Appellant’s fingerprints.
Appellant
had a prominent gold front tooth that was missing from Mrs. P’s
physical
description of her attacker.
Appellant
had turned in a pair of Nomex gloves when
he was
reassigned to
Nomex gloves are not
unique, are issued to a majority of soldiers at
Nearly
twenty percent of the black population has type-B blood.
Appellant
had been cleared of any suspicion relating to the CDC incident.
The military judge
found that Appellant had not made even a prima
facie
showing that the omissions were reckless or intentional.
Such a determination is a finding of fact
that is binding on this Court unless it is shown to be clearly
erroneous.
We
do not find the military judge’s
determination erroneous. Moreover, for
the reasons set forth below, we hold that even if this information had
been
included in the affidavit, none of it would have prevented a finding of
probable cause. Accordingly, the
military judge did not err in denying Appellant’s motion to suppress
the DNA
evidence on the grounds that material information was intentionally or
recklessly omitted from the affidavit based on which the magistrate
made her
probable cause determination.
First,
the victim was nearsighted and was
not wearing her glasses at the time of the rape, which occurred in a
dark room
by an assailant wearing a cap partially obscuring his face. The victim’s inability to identify Appellant
in a photographic line-up
was consistent with the poor visibility at the time of the rape, and
therefore
its inclusion on the affidavit would not have extinguished probable
cause. These same circumstances mitigate
the
victim’s inability to describe her rapist as having a gold front tooth. As to the latent fingerprint, the fact that
another individual at some point in time touched the victim’s doorknob
has
little impact on the likelihood that Appellant might have been in the
victim’s
bedroom. Similarly, that Appellant had
turned in a pair of Nomex gloves, and that
other servicemembers own Nomex gloves,
fails to invalidate the other indicators of Appellant’s probable
presence in
the victim’s room, including Mrs. P’s physical description of her
assailant,
the proximity of Appellant’s residence to the crime scene, and the
match of
Appellant’s blood type to that of the assailant. As
to the CDC incident, the details of the
sighting and the lack of any subsequent prosecution for the purse
snatchings do
not nullify the value of the related information that was included,
which
located both Appellant’s car and a man fitting Appellant’s description
at a
site near the victim’s house at the same time of day when the rape
occurred,
albeit almost two months later. Finally,
including the information that only a small percentage of the black
population
has Appellant’s type B blood – a mere 19 percent – would likely have
increased
probable cause for the search authorization, by diminishing the number
of
possible suspects. To this end, the
information before the magistrate also excluded other material
information
which would have favored the Government, such as the fact that the CID
designated its pool of suspects based on proximity to the crime scene,
physical
description, and behavior, and that the Government considered four of
these
suspects before Appellant.
To
reiterate the gist of probable cause: “[P]robable
cause deals ‘with probabilities. These
are not technical; they are the factual and practical
considerations of
everyday life on which reasonable and prudent men, not legal
technicians, act[.]’” Gates,
462
The physical proximity
of Appellant’s residence to the P
residence.
The match of
Appellant’s blood type to that of the assailant.
The
Nomex glove found at the crime scene being
similar to
the gloves issued to Appellant.
The similarity in times
between the rape and the CDC incident.
We
acknowledge that agent Bruce should have
brought the information about the line-ups to the military magistrate’s
attention. Nevertheless, we conclude
that under the facts of this case, the failure to do so did not
invalidate the
probable cause determination. Although
this is a close case, we are convinced that the cumulative impact of
the
information before the magistrate was sufficient to yield probable
cause that
Appellant’s blood did contain DNA evidence identifying him as the
rapist, and,
for the reasons listed above, that the inclusion of the excluded
information
would not have extinguished this probable cause.
II.
During
trial, defense counsel cross-examined the Government’s DNA expert as
follows:
Q:
Now,
the NRC discusses that perhaps one way of quality assurance would be a
second
lab test, send the samples to a second lab, correct?
A:
Yes,
sir.
Q:
Obviously, you don’t do that at USACIL.
A:
No,
sir.
Q:
But
would you agree that if that was done, that that might increase the
confidence
in the level of testing if there was [sic] similar
results?
A:
I
believe so, sir, yes.
During
the redirect examination of the
Government’s DNA expert, the following exchange took place:
Q:
. . . [A]re there samples remaining on
the panties of Mrs. [P] and on the vaginal swabs from Mrs. [P] that
could be
used for additional testing[?]
A:
Yes.
Q:
Has there been a request by either
party?
Defense
counsel objected to this question as outside the scope of his
cross-examination
and as an improper attempt by the Government to shift the burden of
proof to
the defense. The military judge
requested a sidebar conference about the objection, during which trial
counsel
argued: “There’s a clear implication here that had the test been
re-done under
the new standards, that there may have been a different result.” Without explanation, the military judge
overruled both objections, and allowed redirect examination of the DNA
expert
to continue, as follows:
Q:
Again, were there any requests by either
party to re-test the samples?
A:
Not to my knowledge, no.
The
Appellant
now asserts that the military judge erred in overruling the defense
objection
when the Government asked the DNA expert if the defense had requested
that the
evidence be retested, contending that the question improperly sought to
shift
the burden of proof to the defense. In
this regard, Appellant claims the Government improperly suggested to
the
members that if the accused were innocent, he should have proven so by
having
the DNA evidence retested. Appellant
also asserts that the court below erred by holding that the defense
opened the
door for the Government’s question about DNA retesting by raising the
issue of
whether further testing of the DNA material could have exonerated him.
Importantly,
this is not a case in which the Government sought to counter the
defense
challenge to the reliability of the test by eliciting testimony as to
why an
additional test was unnecessary, or to reinforce the 1 in 240 billion
chance
that someone other was the source of the DNA found at the crime scene.
We
hold, first, that the military judge erred in permitting trial
counsel’s
redirect examination of the DNA expert on the issue of whether either
party had
requested a retest. “The Due Process
Clause of the Fifth Amendment to the Constitution requires the
Government to
prove the defendant’s guilt beyond a reasonable doubt.”
For this Court
to affirm despite an error of
constitutional dimension, such as this one, the error must be “harmless
beyond
a reasonable doubt.” United
States v. Bins, 43 M.J. 79, 86 (C.A.A.F. 1995)(quoting
Chapman v. California, 386
First,
the evidentiary strength of the DNA evidence in this case was
overwhelming. The expert witness
interpreting the DNA evidence established at trial that the odds of an
individual other than Appellant having been the source of the semen
found in
Mrs. P were an extremely small 1 in 240 billion. The
defense mounted a weak challenge to the
DNA evidence, alleging through cross-examination of the expert witness
that the
DNA test was prone to error, and that a second test under new standards
could
have increased the accuracy of the results.
The statistical evidence of the likelihood that Appellant
was the source of the semen found in Mrs. P, and the failure of
the
defense to discount this likelihood, rendered
the military
judge’s error in permitting trial counsel’s improper question during
redirect
examination of the DNA expert harmless beyond a reasonable doubt.
Moreover,
after closing arguments, the
military judge instructed the members as follows:
Lastly,
the burden of proof to establish the guilt of the accused beyond a
reasonable
doubt is on the government. The burden never
shifts to the accused to establish his innocence or to disprove
those facts
which are necessary to establish each element of any particular
offense.
(Emphasis added.) See
Article 51(c)(4),
UCMJ, 10 U.S.C. § 851(c)(4) (2000)(requiring the military judge to
instruct the
members “that the burden of proof to establish the guilt of the accused
beyond
a reasonable doubt is upon the United States”); United States v.
Clay, 1
C.M.A. 74, 80, 1 C.M.R. 74, 80 (1951)(defining the importance of
instructing
the members on the proper burden of proof).
These instructions followed trial counsel’s own reiteration of
the
burden of proof during closing argument: “This isn’t to say that the
government
is relieved of the burden beyond a reasonable doubt to prove those
elements. The government doesn’t suggest
that. The government is burdened by that
burden of proof.” As Appellant concedes,
at no point during trial other than in the redirect examination of the
DNA
expert did the Government suggest the burden of proof might have
shifted. Cf. Hayes v. State,
660 So.2d
257, 265-66 (Fla. 1995)(government improperly shifted burden of proof
to
accused through redirect of crime lab expert on issue of blood stain
test
raised by defense on cross-exam of expert plus related comments
made
during government’s closing argument).
For these additional reasons, the error was harmless beyond a
reasonable
doubt.
DECISION
The
decision of the United States Army
Court of Criminal Appeals is affirmed.
1 We
heard oral argument in this case at the University of
Maryland School of Law,