2016 CCA LEXIS 400
NMCCA2016Background
- Appellee (Latour) charged at general court-martial with multiple sexual-assault specifications involving two alleged victims; disputed evidence pertains to two specifications involving victim BNS.
- Appellee initially pleaded not guilty at arraignment and did not object under Mil. R. Evid. 304(c) before pleas; later objected to admission of a spontaneous text message and an NCIS interrogation for lack of corroboration.
- Text message from appellee to BNS hours after the incident said, “we made whoopy lol.” NCIS interrogation contained admissions of digital and penile penetration described as consensual by appellee; BNS has no memory of sexual activity.
- Military judge (MJ) sustained defense objections, suppressing the text and excising uncorroborated portions of the interrogation under Mil. R. Evid. 304(c) for lack of independent corroboration of essential facts (notably penetration).
- Government filed interlocutory appeal under Article 62, arguing (1) objections were untimely, (2) non‑interrogation statements fall under the hearsay exclusion for opposing party statements (Mil. R. Evid. 801(d)(2)(A)) and thus need not be corroborated, and (3) MJ misapplied Adams by demanding one‑for‑one corroboration of every essential fact.
- The Navy‑Marine Corps Court of Criminal Appeals denied the Government’s appeal, upholding the MJ’s exercise of discretion to consider untimely objections, applying the corroboration requirement to the text message, and affirming the MJ’s corroboration analysis under Adams.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of 304(c) objections | Government: appellee waived 304(c) objections by not objecting before pleas; MJ abused discretion by considering late objections | Latour: MJ permissibly found (or exercised discretion to allow) good cause to consider objections after pleas | MJ did not abuse discretion; court presumes MJ followed law and Government failed to show error |
| Whether non‑interrogation statements (text) escape 304(c) corroboration via 801(d)(2)(A) | Government: spontaneous text is an opposing‑party statement under 801(d)(2)(A) and thus exempt from 304(c) corroboration | Latour/MJ: admissions and confessions are governed by 304; 801(d)(2)(A) does not negate corroboration requirement for confessions/admissions offered against accused | 801(d)(2)(A) and 304 are complementary; MJ correctly applied 304(c) to the text message and required corroboration |
| Scope/quantum of corroboration required under 304(c) and Adams | Government: MJ misread Adams and applied an overly rigid "one‑for‑one" corroboration rule | Latour/MJ: Adams requires independent corroboration of each essential fact in the admission; uncorroborated essential facts must be excised | MJ correctly followed Adams majority; each essential fact requires independent corroboration and uncorroborated facts must be excised |
| Sufficiency of the corroborating evidence (here: victim waking naked waist‑down, appellee seen leaving room) | Government: these facts and the text/interrogation reasonably corroborate essential facts of penetration | Latour/MJ: those facts are insufficient to corroborate specific essential facts (penetration, method); nudity alone is not proof of sexual activity | MJ did not abuse discretion; independent evidence was insufficient to corroborate essential facts of penetration and method |
Key Cases Cited
- United States v. McCollum, 58 M.J. 323 (C.A.A.F.) (standard of review for MJ evidentiary rulings)
- United States v. Ayala, 43 M.J. 296 (C.A.A.F.) (review standards for findings and conclusions)
- United States v. Miller, 66 M.J. 306 (C.A.A.F.) (abuse of discretion framework)
- United States v. Maio, 34 M.J. 215 (C.M.A.) (admissions outside interrogation considered as corroboration where objection forfeited)
- United States v. Baldwin, 54 M.J. 551 (A.F. Ct. Crim. App.) (discussion of admissibility of non‑interrogation admissions)
- United States v. Cottrill, 45 M.J. 485 (C.A.A.F.) (corroboration must raise inference of truth as to essential facts)
- United States v. Adams, 74 M.J. 137 (C.A.A.F.) (majority requires independent corroboration of each essential fact in confession)
- United States v. Yeoman, 25 M.J. 1 (C.M.A.) (only slight quantum of independent evidence necessary to raise an inference)
- United States v. Custis, 65 M.J. 366 (C.A.A.F.) (rules of construction for Military Rules of Evidence)