United States v. Sojfer

SULLIVAN, Judge

(concurring in the result):

The majority opinion holds that appellant was required to establish an evidentiary foundation before he could question the alleged victim in this case about a prior report of rape by another soldier. This question, however, was asked on cross-examination after the alleged victim had placed her credibility in issue. This line of questioning was permissible under our prior decisions. See United States v. Gray, 40 MJ 17 (CMA 1994); United States v. Bahr, 33 MJ 228 (CMA 1991).

I also disagree with the majority’s conclusion that Granted Issue I can be resolved on the basis that, “[i]n this instance, it is improbable that the victim misinterpreted appellant’s placing his hand on her genital area as an indecent assault rather than a proper abdominal examination.” 47 MJ at 428. This was a question of fact for the military jury, and our concern is whether a prior rape complaint by the alleged victim against another person was a matter which the members should consider in this ease in evaluating her credibility. See generally U.S. v. Gray and U.S. v. Bahr, both swpra. The defense should have been allowed to show the possible bias of any witness to the jury. The jury must know if a witness is biased. Accordingly, I would find error under Issue I.

Nevertheless, I join the majority in its conclusion that appellant’s case may be affirmed. Initially, I note that the military judge’s ruling on this impeachment question was not final and defense counsel failed to pursue this matter at a later time when invited to do so by the military judge. See United States v. Johnson, 35 MJ 17, 21 (CMA 1992). Moreover, there were three different victims in this case who testified to three different assaults by appellant dining medical examinations, rendering an error in impeachment of one witness much less prejudicial. Cf. Bahr, supra at 234. Finally, while a large number of complaints of sexual abuse against different men in a short period of time might provide strong support for *431appellant’s bias theory, a single complaint long before the alleged rape is far less significant. Cf. Gray, supra at 81. In light of these circumstances, I would affirm on the basis of harmless error.

Turning to Issue II, I again agree with the result reached by the majority but am unable to join its rationale for affirmance. Two particular questions are before the Court. The first question is whether misrepresentations by a police officer who interrogated appellant rendered his confession involuntary and inadmissible as a matter of law. See generally Frazier v. Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 1424-25, 22 L.Ed.2d 684 (1969); Ledbetter v. Edwards, 35 F.3d 1062, 1068-70 (6th Cir.1994). The second question is whether misrepresentations by a police officer to an alleged victim to secure her report of a crime is “outrageous government conduct” requiring dismissal of the charges against appellant. See Miller v. Fenton, 474 U.S. 104, 109, 106 S.Ct. 445, 449, 88 L.Ed.2d 405 (1985); United States v. Lemaster, 40 MJ 178, 181 (CMA 1994) (Sullivan, J., concurring in the result); United States v. Bell, 38 MJ 358, 370-74 (CMA 1993) (opinions of Sullivan, C.J., Wiss, J., and Gierke, J.).

The majority does not directly address the impact of the averred lie which the interrogating officer told appellant. However, it does identify that misrepresentation in the context of this case:

SA Maclsaac interrogated appellant alone for the first hour and was thereafter assisted by SA Rene Vasquez. Appellant denied the allegations. He told his interrogators that he remembered AN M, and he talked with them about his physical examinations of her. Appellant admitted examining her abdomen on at least one occasion, but he denied touching her vaginal area.
At one point, SA Vasquez confronted appellant by saying, “You touched her pubic hairs.” Appellant immediately responded, “Excuse me. She is shaved.” After a moment of silence, SA Maclsaac said, “Well, I know that and Rene Vasquez knows that; how do you know that? ” SA Maclsaac knew that AN M shaved her pubic area because this fact was contained in her written statement. However, SA Vasquez was not aware of this. Appellant explained that he saw and felt part of AN M’s pubic region during his examination of her abdomen while, he said, an observer was present.

47 MJ at 428-29 (emphasis added).

Misrepresentations by the police in the interrogation process do not by themselves render a subsequent confession involuntary and inadmissible. The critical question is whether the misrepresentation was of the type which itself would overbear an accused’s will. See Ledbetter, 35 F.3d at 1070. I conclude that the police misstatement of the extent of the Government’s case could not have overborne appellant’s will, and I join the majority’s conclusion that his confession was voluntary. See Amaya-Ruiz v. Stewart, 121 F.3d 486, 496 (9th Cir.1997); United States v. Drake, 934 F.Supp. 953, 963 (N.D.I11.1996).

Appellant’s “outrageous government conduct” complaint with respect to the victim’s questioning by the police is simply ignored by the majority opinion. Our case law and case law from the Supreme Court, as noted above, permit due process challenges to police investigations and prosecutions which shock the conscience of the court in terms of fundamental fairness. However, no legal authority has been cited to this Court which would permit an accused to make such a complaint based on the victim’s mistreatment. The fact that police officers told the victim that they were conducting “a quality assurance review of the sick call records” rather than investigating professional misconduct by appellant is hardly outrageous government conduct within the context of the decisions cited above. Cf. United States v. Lemaster, supra