UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS
UNITED STATES
v.
Captain CHRISTOPHER S. LAMMENS
United States Air Force
ACM 38185 (f rev)
11 September 2014
Sentence adjudged 2 June 2012 by GCM convened at Moody
Air Force Base, Georgia. Military Judge: W. Thomas Cumbie.
Approved Sentence: Dismissal and confinement for 15 years.
Appellate Counsel for the Appellant: Major Christopher D. James and
Frank J. Spinner, Esquire.
Appellate Counsel for the United States: Lieutenant Colonel C. Taylor
Smith; Major John M. Simms; Major Jason S. Osborne; and Gerald R.
Bruce, Esquire.
Before
ALLRED, MITCHELL, WEBER
Appellate Military Judges
OPINION OF THE COURT
UPON FURTHER REVIEW
This opinion is subject to editorial correction before final release.
MITCHELL, Senior Judge:
A general court-martial composed of officer members convicted the appellant,
contrary to his pleas, of carnal knowledge, rape, and indecent acts, in violation of
Articles 120 and 134, UCMJ, 10 U.S.C. §§ 920, 934. The court sentenced him to a
dismissal, confinement for 15 years, and forfeiture of all pay and allowances.
The appellant assigns as error: (1) the evidence is legally and factually
insufficient; (2) the members were not properly instructed on the element of force in the
rape specification; (3) the evidence is legally and factually insufficient to show force;
(4) the record of trial does not clearly indicate the convening authority reviewed all the
materials in the appellant’s clemency submission; (5) trial defense counsel were
ineffective when they did not interview or call as a witness a nurse who performed a
physical exam of the victim; and (6) the appellant’s rights were materially prejudiced
when the military judge failed to provide a limiting instruction after trial counsel’s
cross-examination elicited that the appellant invoked his right to counsel.
Because we found error in the original post-trial processing, we remanded the
record of trial to correct the earlier oversight. United States v. Lammens, ACM 38185
(A.F. Ct. Crim. App. 7 March 2014) (unpub. op.). A new addendum to the staff judge
advocate’s recommendation was completed, and the convening authority considered all
matters before taking action. The convening authority approved the findings and only so
much of the sentence as provided for the dismissal and confinement for 15 years. He also
waived the automatic forfeitures for the benefit of the appellant’s dependent children.
This new post-trial processing moots the appellant’s earlier claim of error in the post-trial
processing.
We now address the other issues raised.
Background
The appellant was 36 years old with over 18 years of service by the time of his
court-martial. The appellant met HM over the Internet when he was stationed in
San Antonio, Texas. The appellant moved into HM’s house in 2005 and married her in
January 2006. HM had a 14-year-old daughter, AW. Beginning in 2005, the appellant
engaged in sexual activity with AW. Additional facts are addressed below.
Legal and Factual Sufficiency
We review issues of legal and factual sufficiency de novo. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). “The test for legal sufficiency of the
evidence is ‘whether, considering the evidence in the light most favorable to the
prosecution, a reasonable factfinder could have found all the essential elements beyond a
reasonable doubt.’” United States v. Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002)
(quoting United States v. Turner, 25 M.J. 324 (C.M.A. 1987)). “The test for factual
sufficiency is whether, after weighing the evidence [] and making allowances for not
having personally observed the witnesses, [we ourselves are] convinced of the
[appellant]’s guilt beyond a reasonable doubt.” United States v. Reed, 54 M.J. 37, 41
(C.A.A.F. 2000) (quoting Turner, 25 M.J. at 325) (internal quotation marks omitted).
AW testified that she met the appellant when he was dating her mother. AW liked
that they were dating because her mom, HM, was home more often and not
2 ACM 38185 (f rev)
“out partying.” In 2005, the appellant and HM decided he would move into her house.
One day when AW did not have school and her mother was working, she went to the
appellant’s home to help him pack. While the appellant was alone with AW in his house
he offered her shots of Apfelkorn liquor, which caused her to feel dizzy and lightheaded.
The appellant then led her up to his bedroom. Once they were in the bedroom, he told
her, “We can experiment with sex.” She had slumped to floor by then, and he asked if
she was okay. She nodded her head yes. He then began to kiss her and performed oral
sex on her. During this time, he would ask her if she was okay, and she continued to
shake her head yes. Afterward, he told her not to tell anyone because “he would get in a
lot of trouble” and then he would not be with her mother. On a separate occasion at his
house, they both undressed from the waist down and “grinded” on each other; however,
there was no penetration because the appellant told her he had contracted an STD from
her mother. He again told her not to tell anyone.
After he moved into HM’s house, the appellant would go into AW’s room at night
and rub her back until she awoke. Then they would both undress and kiss. On 15 to 20
occasions, he also performed oral sex on her. He made AW feel happy and made her
“feel like [they] were in love, that he loved [her] and that he really cared about [her].”
The appellant and HM were married shortly before AW turned 15 years old. 1 Afterward,
the nighttime visitations included sexual intercourse. Prior to the appellant’s sexual
intercourse with her, AW was a virgin.
Shortly after AW turned 16 years old, she and her mother moved with the
appellant to Moody Air Force Base, Georgia. The appellant continued to have sexual
intercourse with AW. The appellant and AW would tell her mother they were going to
see a movie or get food, but instead, would go in his truck to someplace dark to engage in
sexual activity. They also had sexual intercourse in an outbuilding that housed AW’s
ferrets.
AW told the appellant, “[she] didn’t want to do it anymore, that [she] was going to
try to have other boyfriends and stuff like that.” When she had previously tried to have
boyfriends, she would be “grounded” and would not be able to go anywhere. The
appellant would make her feel bad by telling her that she did not love him anymore and
the only reason he was with her mother was because of her. AW continued to engage in
sexual activity with him “because he made [her] feel bad about it, not wanting to do it
anymore.” She felt “pressure” that he would leave her mother if she ceased
sexual activity with him. She was concerned that then she “would stop getting stuff and
[her] mom would probably be out more and she wouldn’t be home anymore.” In addition
1
According to the transcript, AW testified that her birthday was 18 January 1981. If accurate, AW would have
been in her mid-twenties throughout her entire relationship with the appellant. However, we are convinced beyond a
reasonable doubt by her testimony, as well as the testimony of other witnesses, that AW was not born in 1981 but
the year is a result of an error in either speech or transcription.
3 ACM 38185 (f rev)
to the emotional manipulation, the appellant bought AW items such as “stick-on nails”
and movies to entice AW to engage in sexual activity with him.
In addition to the oral intercourse and the vaginal intercourse, the appellant
repeatedly asked AW to engage in anal intercourse, which occurred on one occasion.
The appellant also videotaped and took pictures of them engaging in sexual activity. No
videotapes, photographs, or computer data of sexual activity between the appellant and
AW were entered into evidence.
During AW’s senior year in high school, HM and the appellant separated and HM
moved back to Texas to live with her parents. AW refused to return to Texas with her
mother because she did not want to leave her friends during her senior year. While HM
was in Texas, AW moved into the master bedroom with the appellant. AW and the
appellant shared the master bedroom “as a couple.” HM obtained a court order to have
AW returned to her custody in Texas. Lieutenant (Lt) MT of the Lowndes County
Sherriff’s Office served the order on AW at the appellant’s house in September 2008.
AW did not want to comply with the order, but Lt MT explained she did not have a
choice. He went with AW while she gathered her belongings. He saw that AW’s
personal belongings were in the master bedroom and master bathroom.
On many previous occasions, AW denied that there was anything inappropriate in
her interactions with the appellant. AW admitted that she can be an effective liar in that
she had convinced everyone, for about five years, that she did not have an inappropriate
relationship with the appellant. AW had a medical examination in 2007 as part of a
Child Protective Services investigation. She told the medical professional that she was a
virgin, and the provider documented a normal looking hymen. AW also went to a mental
health counselor while she was in Georgia. AW denied that she and the appellant had an
inappropriate relationship. During the Air Force Office of Special Investigations
(AFOSI) investigation of the appellant in 2008, AW told them she never had sex with the
appellant and that her mother made up the allegations because they were divorcing and
she wanted to ruin his career. AW also described her relationship with her mother as
tumultuous but said that it had improved since she made the complaint against the
appellant.
A high school friend of AW testified that the appellant admitted to her that he had
sexual intercourse with AW. She also testified that the appellant contacted her, while she
was in college, and told her there was an investigation and she should not talk to
investigators or, if she did talk, she should deny specific events.
Chief Petty Officer (CPO) MC testified that she was good friends with HM. She
would visit HM and AW when they lived in the San Antonio area with the appellant. She
saw AW and the appellant “sitting or laying [sic] in ways that [she] was uncomfortable
with” to include “spooning” and “one time they were sitting where [AW] had her legs
4 ACM 38185 (f rev)
over his legs and he had his hand on her upper thigh and rubbing it.” CPO MC attended a
pool party at HM’s parents’ house. While there, the appellant took photos of AW in a
bikini, had her pose like a model, and said AW “had a smoking-hot body and that if he
were younger, then he would hit it.” CPO MC understood “hit it” to be a euphemism for
sexual intercourse. CPO MC addressed her concerns to HM but never reported any of
her suspicions to law enforcement or child protective services.
The appellant’s sister, KM, testified at the court-martial. In August 2007, she
hosted a wedding for her sister. The appellant and AW were to attend the wedding and
stay at KM’s house. HM did not travel with them. The appellant mentioned several
times to his sister that he and AW could sleep in the same bed while they were there.
KM was not comfortable with that so she arranged two airbed mattresses, separated by a
pool table, in her game room. KM realized that she needed an air pump, which was in
the game room, for another mattress. The appellant and AW had retired to the game
room for the evening about a half hour earlier. When KM went into the game room it
was dark and silent, so she entered quietly so as not to awaken them. When she opened
the door, her brother was lying at AW’s side with the comforter over both of them. Her
brother sprung up, and she could see that he did not have a shirt on; she did not see if he
had any other clothes on as he was covered by the comforter. She was shocked and left
the room. She heard the appellant fumbling against a weight machine to get some clothes
on, and when he came out of the room, he tried to banter with her. But, she opened the
door again and retrieved the air pump.
The next morning the appellant was in the kitchen when KM came in. He asked
her what was wrong. She initially said, “Nothing.” He persisted and then said, “Well,
I -- I can’t think of -- of anything that I’ve done that would make you upset” to which his
sister responded, “Think harder.” The appellant then retreated to the game room and was
in there for about five minutes with AW. He returned and remarked that the only thing
he could think of was that she walked in while he and AW were getting ready for bed.
KM confirmed, “That’s it.” He then “got very angry very fast” and told his sister that he
could not believe she was accusing him of something like that. The appellant later was
yelling at his sister, calling her names, cursing her out and told her, “[AW]’s a confirmed
virgin and we’ve taken her to the doctor to prove that she’s a virgin, and when I get back,
we’re going to take her again.” KM had never accused him of having intercourse with
AW. The appellant and AW left her house shortly after that and did not attend his sister’s
wedding. AW testified that she and the appellant were in fact only talking when KM
entered the room.
When the evidence is viewed in the light most favorable to the prosecution, we
find that a reasonable fact finder could determine that all the elements were proven
beyond a reasonable doubt. We conclude that the evidence is legally sufficient. We also
conduct our own independent review of the evidence while making allowances for not
having personally observed the witnesses. Contrary to the appellant’s contention, the
5 ACM 38185 (f rev)
conviction does not rest solely on the testimony of AW. AW’s friend testified as to the
appellant’s confession to her. CPO MC testified as to appellant’s aberrant behavior and
comments. KM, the appellant’s sister, testified to the appellant’s exaggerated response to
a non-accusation, which can be evidence of a consciousness of guilt.2 We are convinced
beyond a reasonable doubt that the appellant is guilty of the offenses.
Parental Compulsion Instruction when the Victim is No Longer a “Minor”
The appellant was convicted of raping AW in violation of Article 120, UCMJ.
The time frame on this specification addressed the sexual intercourse after AW turned
16 years of age.3 The military judge instructed the members that the second element was
“that the sexual intercourse was done by force and without the consent of [AW].” He
further detailed that “both force and lack of consent are necessary to this offense.” He
defined force to include both actual physical force and constructive force. He stated that
constructive force applies “when the [appellant’s] actions, words or conduct, coupled
with the surrounding circumstances, create a reasonable belief in the victim’s mind that
death or physical injury would be inflicted on her or that resistance would be futile . . . .”
The military judge further explained:
Sexual activity between a stepparent and a minor child are not
comparable to sexual activity between two adults. The youth
and vulnerability of children, when coupled with a
stepparent’s position of authority, may create a situation in
which explicit threats and displays of force are not necessary
to overcome a child’s resistance. On the other hand, not all
children invariably accede to parental will. In deciding
whether the victim did not resist because of constructive force
in the form of parental compulsion, you must consider all of
the facts and circumstances, including but not limited to the
age of the child when the alleged sex abuse started, the
child’s ability to fully comprehend the nature of the acts
involved, the child’s knowledge of the accused’s parental
power, or any implicit or explicit threats of punishment or
physical harm if the child does not obey the accused’s
commands. If [AW] did not resist due to the compulsion of
parental command, constructive force has been established
and the act of sexual intercourse was done by force and
without consent.
2
“The lady doth protest too much, methinks.” WILLIAM SHAKESPEARE, HAMLET, act 2, sc. 2.
3
Specification 1 alleged carnal knowledge of AW by the appellant the year before she turned 16 years of age. AW
testified that the first incident of sexual intercourse occurred after she turned 15 years old.
6 ACM 38185 (f rev)
The appellant did not object to this instruction at trial. Whether a military judge
properly instructs the court members is a question of law we review de novo.
United States v. McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002). If there was no objection at
trial we review for plain error, which requires (1) error, (2) that is plain or obvious, and
(3) that it impacts a substantial right of the appellant. See United States v. Kho,
54 M.J. 63, 65 (C.A.A.F. 2000) (citing United States v. Finster, 51 M.J. 185, 187
(C.A.A.F. 1999)). The appellant bears the burden of persuading this court of the plain
error, after which the burden shifts to the Government to show that the error is not
prejudicial. See United States v. Powell, 49 M.J. 460, 464–65 (C.A.A.F. 1998).
“[C]ompulsion of a parental command is no different species from any other form
of constructive force . . . .” United States v. Palmer, 33 M.J. 7, 10 (C.M.A. 1991). The
instruction on parental compulsion as a form of constructive force is clearly authorized
when the victim is a child under 16 years of age. Id. This court has previously found an
appellant’s conviction for raping his daughter when she was 16 to 18 years old legally
and factually sufficient when the only force involved was the constructive force of
parental compulsion. United States v. Hansen, 36 M.J. 599, 608 (A.F.C.M.R. 1992). Our
superior court has upheld a military judge’s decision to provide similar instruction on
parental compulsion for a rape allegation when the victim was over 16 years of age.
United States v. Davis, 52 M.J. 201, 203 (C.A.A.F. 1999).
Constructive force, acceding to parental will, and tender years
were presented as alternatives to actual force, not as an
invitation to dispense with the necessity of finding the force
element of both rape and forcible sodomy. . . . [T]he military
judge’s instructions did not mandate a finding of parental
compulsion, but merely permitted the members to understand
the implications of such conduct, were they to find it
occurred, on the elements of force and consent. Id.
We conclude that the instruction is not barred by the victim turning 16 years of
age and there was no error in the military judge providing the instruction.
Legal and Factual Sufficiency of Force by Parental Compulsion4
The tests for legal and factual sufficiency are discussed supra. The appellant
challenges his conviction on the rape specification on the grounds that insufficient
evidence was presented to demonstrate he used force. We agree that there was neither
evidence of physical force nor any explicit threats of bodily harm. However, the
appellant’s sexual intercourse with AW after she turned 16 years old continued his
4
The appellant included this as part of the first assignment of error. Because this issue solely involves the rape
specification while the remainder of his first assignment of error is aimed at all the charges and specifications, we
believe it is better examined as a separate assignment of error.
7 ACM 38185 (f rev)
long-standing sexual abuse of his step-daughter. On one of the first occasions they were
alone together, he plied her with alcohol in order to have her be less likely to resist his
advances. He committed sexual assaults on her on a regular basis beginning when she
was 14 years old, and her first sexual intercourse was with the appellant when she was
15 years old. Beginning around the time she turned 16 years old, AW attempted to cease
having intercourse with the appellant, but the appellant, via his position as her step-father,
used parental coercion to force AW to continue to have sex with him. When the evidence
is viewed in the light most favorable to the prosecution, we find that a reasonable fact
finder could determine that all the elements were proven beyond a reasonable doubt. We
conclude that the evidence is legally sufficient. We also conduct our own independent
review of the evidence while making allowances for not having personally observed the
witnesses. We are convinced beyond a reasonable doubt that the appellant is guilty of the
offense of raping his step-daughter by force and without consent.
Ineffective Assistance of Counsel for Failure to Investigate
The appellant claims his trial defense counsel were ineffective because they failed
to interview a sexual assault nurse examiner (SANE), Major (Maj) FC, who performed an
examination of AW in 2007 and concluded that she had a normal looking hymen. In her
letter to the Georgia Department of Children and Family Services she wrote, “I have
examined [AW] today and a vagina exam was done today. Her hymen is normal
appearing. [AW] absolutely denied any sexually activity. She has stated she had a “v”
(virginity) card.” In a post-trial affidavit, Maj FC wrote that she was never interviewed
about her examination of AW. Maj FC did not suspect any possibility of sexual assault.
If called to testify, she would have explained that the hymen did not have any indicators
of sexual intercourse and would have been able to show the members pictures of normal
hymens vice those that show signs of disfiguration related to sexual intercourse.
Trial defense counsel also submitted affidavits. They were aware of Maj FC’s
report and initially believed this report to be highly probative. However, upon
consultation with another SANE they were told that no qualified SANE would perform a
physical exam as a virginity test, as a physically intact (normal) hymen and sexual
intercourse were not mutually exclusive. They made a decision to have the letter from
Maj FC admitted but decided not to call her as a witnesses. Maj FC had retired by the
time of trial and although they had her contact information, they decided not to contact
her as they did not want to alert the Government that it should have a SANE expert
testify to rebut the letter.
Maj FC’s letter was admitted into evidence at the court-martial. Subsequently, the
Government called a pediatrician who testified that the letter was vague and did not
explain whether the examination was only an external examination or also included an
internal examination. She also testified that although there are findings that are indicative
of penetration, she would not perform a physical exam to determine if someone was a
8 ACM 38185 (f rev)
virgin as that it was not medically conclusive. She stated that an examination within a
few days of the intercourse would be medically appropriate in order to determine if there
was an infection and to collect evidence.
By the time of trial, trial defense counsel were appointed a physician as a
confidential expert consultant. This expert consultant confirmed that a physical
examination could not determine if an individual was a virgin. She had also worked with
Maj FC and had a low opinion of her work and informed trial defense counsel that
Maj FC had a poor reputation for thoroughness at the on-base clinic.
This court reviews claims of ineffective assistance of counsel de novo.
United States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009). When reviewing such claims,
we follow the two-part test outlined in Strickland v. Washington, 466 U.S. 668, 687
(1984). Under Strickland, the appellant has the burden of demonstrating: (1) a
deficiency in counsel’s performance that is “so serious that counsel was not functioning
as the ‘counsel’ guaranteed the defendant by the Sixth Amendment;”5 and (2) that the
deficient performance prejudiced the defense through errors “so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.” Id.
The deficiency prong requires the appellant to show his defense counsel’s
performance “fell below an objective standard of reasonableness,” according to the
prevailing standards of the profession. Id. at 687–88. The prejudice prong requires the
appellant to show a “reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Id. at 694. In doing so, the
appellant “must surmount a very high hurdle.” United States v. Perez, 64 M.J. 239, 243
(C.A.A.F. 2006) (citations and internal quotation marks omitted). This is because
counsel is presumed competent in the performance of their representational duties.
Anderson, 55 M.J. at 201. Thus, judicial scrutiny of defense counsel’s performance must
be “highly deferential and should not be colored by the distorting effects of hindsight.”
United States v. Alves, 53 M.J. 286, 289 (C.A.A.F. 2000) (citing United States v.
Moulton, 47 M.J. 227, 229 (C.A.A.F. 1997)).
To determine whether the presumption of competence has been overcome, our
superior court has set forth a three-part test:
1. Are appellant’s allegations true; if so, “is there a
reasonable explanation for counsel’s actions”?
2. If the allegations are true, did defense counsel’s level of
advocacy “fall measurably below the performance . . .
[ordinarily expected] of fallible lawyers”?
5
U.S. CONST. amend. VI.
9 ACM 38185 (f rev)
3. If defense counsel was ineffective, is there “a reasonable
probability that, absent the errors,” there would have been a
different result?
United States v. Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011) (alteration and omission in
original) (quoting United States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991)).
“[T]he defense bears the burden of establishing the truth of the factual allegations
that would provide the basis for finding deficient performance.” United States v. Tippit,
65 M.J. 69, 76 (C.A.A.F. 2007). When there is a factual dispute, appellate courts
determine whether further fact-finding is required under United States v. Ginn,
47 M.J. 236, 248 (C.A.A.F. 1997). If, however, the facts alleged by the defense would
not result in relief under Strickland, the court may address the claim without the necessity
of resolving the factual dispute. See Ginn, 47 M.J. at 248.6 “ʻ[S]trategic choices made
after thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable.’” Wiggins v. Smith, 539 U.S. 510, 521 (2003) (alteration in original)
(quoting Strickland, 466 U.S. at 690–91).
There is no factual dispute that trial defense counsel did not interview Maj FC
before trial. Therefore, we can resolve this matter without ordering a fact-finding
hearing. See Ginn, 47 M.J. at 248. Trial defense counsel made a strategic choice to have
the evidence they sought—“the results of [Maj FC]’s examination”—entered into
evidence without calling Maj FC as a witness. The letter documenting her examination
of AW was admitted into evidence. This letter included both the results of the
examination as well as AW’s statements that she did not engage in sexual intercourse.
Trial defense counsel located Maj FC but decided not to contact her as they wanted to
maximize the favorable evidence—her results—while minimizing the Government’s
rebuttal through better qualified expert consultants. Trial defense counsel’s strategy
worked in that the letter was admitted into evidence and the Government called a local
pediatrician as a rebuttal witnesses. Trial defense counsel made a strategic choice not to
call Maj FC after thoroughly investigating the facts and law to determine the relative
weight of her examination. Trial defense counsel were not ineffective in making this
determination, especially in light of the fact that the results of her examination were
admitted into evidence. Trial defense counsel have a reasonable explanation for their
actions—they wanted the report admitted but did not want a more thorough
cross-examination of the person who wrote the report. The report was admitted into
evidence; therefore, there is no reasonable probability that even if trial defense counsel
6
The Government moved to attach an affidavit from an obstetrician gynecologist and several scientific journals to
prove that a normal looking hymen does not rule out vaginal intercourse, both consensual and non-consensual. We
denied the motion. We remind counsel that while we have fact-finding powers, our authority is to “act as a
factfinder in an appellate review capacity and not in the first instance as a trial court.” United States v. Ginn,
47 M.J. 236, 242 (C.A.A.F. 1997).
10 ACM 38185 (f rev)
had interviewed Maj FC that the results of the court-martial would have been different.
We find that trial defense counsel were not ineffective and appellant has failed to meet
his burden on this issue.
Evidence of the Appellant Invoking his Right to Counsel
The appellant alleges that trial counsel improperly admitted evidence that he
invoked his right to counsel during an interview with AFOSI agents. We disagree.
The appellant testified at the court-martial. During direct examination, he
described a point in his marriage to HM, when she was in Texas and he was in Georgia,
that they were planning to divorce and he was talking to her parents about the logistics of
transferring her household items to her. Her mother recommended that he and HM talk
to each other and reconcile. He told her he could not talk to HM until she removed a
restraining order. Shortly thereafter, the attorney he hired “to deal with the divorce and
the allegations as well” informed him that HM had withdrawn the restraining order and
terminated her divorce petition.
Shortly after trial counsel began his cross-examination of the appellant, the issue
of the appellant making a statement to AFOSI agents arose.
Q. You didn’t really make any statements prior to coming up
here and taking the stand, right?
A. I spoke with [AF]OSI.
Q. About how long did that conversation last?
A. I can’t remember the conversation. I remember multiple
agents came in. Two agents came in at first, spoke with me.
One agent asked me questions, one agent taking notes.
They left the room repeated times, came back, and asked me a
number of different questions.
Q. Did you make a written statement?
A. No, I did not.
Q. Do you recall why that interview ended?
A. The interview ended because I asked for a lawyer.
11 ACM 38185 (f rev)
At that point, trial defense counsel requested an Article 39(a), UCMJ, 10 U.S.C.
839(a), session. During the Article 39(a), UCMJ, session, trial defense counsel expressed
his concern that the cross-examination was not appropriate. Trial counsel explained that
he believed that the interview ended because “[the appellant] was confronted with some
evidence and that he said he didn’t feel comfortable talking about it.” Trial counsel
stated that he did not intend to elicit that the appellant requested an attorney and had no
more questions on that subject. Trial defense counsel asked the military judge for “just
one instruction about how they can and can’t use that” evidence. The military judge
replied, “Absolutely. Remind me.” Neither trial counsel nor trial defense counsel ever
reminded the military judge, and no additional limiting instructions were provided. The
appellant testified for about 45 more minutes. Trial counsel did not make any references
to this statement.
The military judge provided both trial counsel and trial defense counsel with a
copy of his proposed instructions. Before the military judge drafted his instructions, trial
counsel made a reference to a request for some specific instructions. Trial counsel
followed up by requesting the false exculpatory statement instruction. The military judge
sustained the defense objection to that instruction. When the military judge asked, “[N]o
objections or requests for additions?,” trial defense counsel said, “Correct, sir.” Again,
after the military judge provided the instructions to the members in open court, he asked
if counsel for either side had any objections; again trial defense counsel stated he had no
objections.
We first examine if the appellant preserved, waived, or forfeited his objection and
related request for an instruction. We find that he forfeited both issues, leading us to
review for plain error. See United States v. Brooks, 64 M.J. 325, 328 (C.A.A.F. 2007)
(citing Mil. R. Evid. 103(d)); United States v. Taylor, 41 M.J. 701, 703 (A.F. Ct. Crim.
App. 1995) aff’d, 44 M.J. 475 (C.A.A.F. 1996). “Usually any objection to questions
asked on cross-examination must be made at the time they are asked.” United States v.
Ruiz, 54 M.J. 138, 143 (C.A.A.F. 2000). In order to preserve an objection when the
ruling is one admitting evidence, the objecting party must make “a timely objection or
motion to strike . . . in the record, stating the specific ground of the objection, if the
specific ground was not apparent from the context,” however this does not preclude
review for plain error that materially prejudices a substantial right. Mil. R.
Evid. 103(a)(1). “A party is not necessarily required to refer to a specific rule by citation.
A party is required to provide sufficient argument to make known to the military judge
the basis of his objection and, where necessary to support an informed ruling, the theory
behind the objection.” United States v. Datz, 61 M.J. 37, 42 (C.A.A.F. 2005) (citing
United States v. Banker,60 M.J. 216 (C.A.A.F. 2004)); United States v. Brandell, 35 M.J.
369, 372 (C.M.A.1992)). Here trial defense counsel explained the basis for his request
for an Article 39(a), UCMJ, session but never said he objected. Instead trial defense
counsel used language such as, “I don’t think it’s appropriate cross-examination”; and “I
don’t feel comfortable.” Trial defense counsel also included the caveat, “It sounds like
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he -- he invoked -- and I understand that if that’s -- if that’s all there is and we’re going
someplace else --.” The overall context of the Article 39(a), UCMJ, session was that trial
defense counsel had concerns about any additional testimony about his client invoking
his right to counsel. We are not convinced in this case that the request for an
Article 39(a), UCMJ, session was the functional equivalent of a timely objection. “Where
an appellant has not preserved an objection to evidence by making a timely objection,
that error will be forfeited in the absence of plain error.” Brooks, 64 M.J. at 328.
Furthermore, trial defense counsel never renewed his request to have a
curative instruction provided to the members. Trial defense counsel twice told the
military judge he had no objections and did not request any additional instructions. In
doing so, trial defense counsel affirmatively waived his request for a curative instruction.
“The failure to object to an instruction or an omission in an instruction before the
members close to deliberate constitutes waiver of the objection absent plain error.”
Taylor, 41 M.J. at 703.
“Our standard of review for determining whether there is plain error is de novo.”
Brooks, 64 M.J. at 328 (citing United States v. Gudmundson, 57 M.J. 493, 495 (C.A.A.F.
2002)). “To demonstrate that relief is warranted under the plain error doctrine, an
appellant must show that: (1) there was error, (2) the error was plain or obvious, and
(3) the error was materially prejudicial to his substantial rights.” Id. at 328 (citing
United States v. Fletcher, 62 M.J. 175, 179 (C.A.A.F. 2005)). “Whether there has been
improper reference to an accused’s invocation of his constitutional rights is a question of
law that we review de novo.” United States v. Moran, 65 M.J. 178, 181 (C.A.A.F. 2007)
(citing United States v. Alameda, 57 M.J. 190, 198 (C.A.A.F. 2002)). “The law generally
discourages trial counsel’s presentation of testimony or argument mentioning an
accused’s invocation of his constitutional rights unless, for example, an accused invites
such testimony or argument in rebuttal to his own case.” Moran, 65 at 181. It is
well-settled law that evidence that an appellant asserted his right to counsel during
official questioning is not admissible. United States v. Moore, 1 M.J. 390, 391 (C.M.A.
1976); Mil. R. Evid. 301(f)(3). However, a federal constitutional error can be held
harmless, if we determine it was harmless beyond a reasonable doubt.” Chapman v.
California, 386 U.S. 18, 24 (1967).
We conclude that it was error for trial counsel to admit into evidence that the
appellant invoked his right to counsel in order to terminate his interview. We are not
convinced that the error was plain or obvious, particularly since the appellant was the
first to introduce evidence that he was represented by counsel in relation to his divorce
from HM, a restraining order, and “the allegations.” There is no bar on the appellant
deciding to admit evidence that he was represented by counsel earlier in the proceedings;
and it is not clear that once appellant has introduced that evidence that trial counsel is still
foresworn from that evidence. However, even if the error was “plain and obvious,” we
affirmatively hold that under the totality of the circumstances in this case any error was
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harmless beyond a reasonable doubt. The appellant testified at length, and this was one
brief reference in his testimony. Trial counsel never mentioned this testimony in closing
argument. Cf. Moran, 65 M.J. at 182. “[S]tatements made by witnesses concerning the
invocation of an accused’s rights must be reviewed closely. This is especially so when
such comments are reiterated by trial counsel and when the trial is before members rather
than a military judge alone.” Id. However, this one short answer was a miniscule part of
the appellant’s testimony. Further, the evidence of the appellant’s guilt was
overwhelmingly demonstrated by admissible evidence as addressed above. For all these
reasons, we determine that any error in the appellant’s unsolicited response that the
interview was terminated because he asked for an attorney and the lack of any limiting
instruction was harmless beyond a reasonable doubt.
Conclusion
We find the approved findings and sentence are correct in law and fact, and no
error materially prejudicial to the substantial rights of the appellant occurred.
Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved
findings and sentence are
AFFIRMED.
FOR THE COURT
LEAH M. CALAHAN
Deputy Clerk of the Court
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