United States v. LatourUnited States v. Latour
Convening Authority: Commander, Navy Region Southeast, Jacksonville, FL.
For Appellant: LT Robert J. Miller, JAGC, USN; LT James M. Belforti, JAGC, USN.
For Appellee: LT Ryan Aikin, JAGC, USN.
Chief Judge BRUBAKER and Senior Judge FISCHER concur.
PUBLISHED OPINION OF THE COURT
MARKS, Judge:
This case is before us as an interlocutory appeal by the Government, filed pursuant to
- The appellee did not move to suppress the statements or object prior to entering his pleas;
- The appellee‘s spontaneous text message admission to an alleged victim was made in an informal exchange and not pursuant to a law enforcement interrogation; and
- An alleged victim testified she awoke the morning after the incident naked from the waist down with the appellee leaving her room.2
BACKGROUND
A general court-martial comprised of members with enlisted representation was convened and assembled to try the appellee for four specifications of sexual assault in violation of
The appellee pled not guilty to the charge and specifications during a 15 December 2015 Article 39(a), UCMJ, session. At the time the appellee entered pleas, he had not objected to the admission of any confessions or admissions for lack of corroboration under
On 3 March 2016, the Government filed a motion to pre-admit a transcript and video
During direct examination, trial defense counsel objected to BNS‘s expected testimony about a text message from the appellee. An exchange of text messages between BNS and the appellee hours after the alleged sexual assault included the appellee‘s admission that, “[w]e made whoopy lol.”3 At the resulting Article 39(a) session, trial defense counsel argued the text message was an admission lacking corroboration or, alternatively, hearsay. The MJ sustained the objection for insufficient corroboration. After BNS finished testifying, the MJ also suppressed the appellee‘s recorded and transcribed interrogation for lack of corroboration. The MJ later memorialized his rulings in written Findings of Fact and Conclusions of Law, Appellate Exhibit XLIV. These rulings led to the Government‘s interlocutory appeal sub judice.
DISCUSSION
We review an MJ‘s decision to exclude evidence for an abuse of discretion. United States v. McCollum, 58 M.J. 323, 335 (C.A.A.F. 2003). We review findings of fact under the clearly-erroneous standard and conclusions of law de novo. United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995).
A military judge abuses his discretion when his findings of fact are clearly erroneous, the court‘s decision is influenced by an erroneous view of the law, or the military judge‘s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law. United States v. Miller, 66 M.J. 306, 307 (C.A.A.F. 2008) (citations omitted).
The ruling that prompted this interlocutory appeal is based on
An admission or a confession of the accused may be considered as evidence against the accused on the question of guilt or innocence only if independent evidence, either direct or circumstantial, has been admitted into evidence that corroborates the essential facts admitted to justify sufficiently an inference of their truth.
A confession is defined as “an acknowledgment of guilt,” and “‘admission’ means a self-incriminating statement falling short of an acknowledgment of guilt, even if it was intended by its maker to be exculpatory.”
I. Timing of the Objections
The Government first argues that the appellee waived his
Motions to suppress or objections under this rule, or
Mil. R. Evid. 302 or305 , to any statement or derivative evidence that has been disclosed must be made by the defense prior to submission of a plea. In the absence of such motion or objection, the defense may not raise the issue at a later time except as permitted by the military judge for good cause shown. Failure to so move or object constitutes a waiver of the objection.
By its plain language,
The Government urges us to overturn the MJ‘s suppression of the appellee‘s admissions because the appellee‘s objections were untimely and sustained without good cause. Although we agree that
Importantly, the Government bears some responsibility for the absence of any discussion of timeliness in the record. Trial counsel did not raise the issue when opposing suppression of the appellee‘s admission. The Government did not invoke
II. Informal Exchanges vs. Law Enforcement Interrogations as Admissions Requiring Corroboration
The Government next alleges the MJ erred by requiring corroboration of the appellee‘s text message to BNS under
Corroboration is not required [1] for a statement made by the accused before the court by which the accused is being tried, [2] for statements made prior to or contemporaneously with the act, or [3] for statements offered under a rule of evidence other than that pertaining to the admissibility of admissions or confessions.
The Government invokes the third exception to the corroboration requirement in this case. Specifically, it argues the text message was admissible under
(d) Statements that Are Not Hearsay. A statement that meets the following conditions is not hearsay:
. . .
(2) An Opposing Party‘s Statement. The statement is offered against an opposing party and:
(A) was made by the party in an individual or representative capacity . . . .
Here, the MJ found:
The [G]overnment did not offer the text message, or the interrogation of the accused, under any other rule of evidence other than that pertaining to the admissibility of admissions. Specifically, the [G]overnment did not offer the admissions as any exception to the rule of hearsay such as present sense impression, excited utterance, then existing mental, emotional, or physical condition, a business record, etc.5
We could rely on the MJ‘s finding that the text message was explicitly offered as an admission under
Consequently, we begin by examining the relationship between
The Government cites three cases in support of its assertion that an accused‘s statement outside interrogation is admissible under
In Maio, the appellant unwittingly made incriminating statements about drug use to an undercover law enforcement officer before ultimately confessing to a special agent during an interrogation. 34 M.J. at 217. When Maio moved to suppress his written confession for lack of corroboration, the trial court heard and considered his earlier statements to the undercover officer as independent evidence in corroboration. Id. Affirming the trial court‘s admission of the written confession, the Court of Military Appeals (CMA) ratified admission and consideration of “additional admissions” outside interrogation as independent evidence in corroboration. Id. at 218. Having affirmed admission of “additional admissions” without requiring corroboration, the CMA majority noted the applicable exception in a footnote:
Appellant‘s admissions to the undercover agent were made subsequent to his use of real methamphetamine but contemporaneous with and prior to his use of the placebo methamphetamines. A strong argument can be made that these spontaneous admissions do not require corroboration under
Mil.R.Evid. 304(g) .... In any event, no objection was made by appellant to use of these admissions at the suppression hearing as corroboration of his later confession.
Id. at 218 n.2 (citations omitted) (emphasis added). The CMA majority began by considering the second, not the third, exception to the corroboration requirement for confessions and admissions. Id. Ultimately, though, the court concluded that Maio forfeited the corroboration requirement for the admissions outside interrogation because he failed to object when the Government introduced them into evidence. Id. at 218 n.3.
In a concurring opinion, Judge Cox focused instead on the third exception to the corroboration requirement,
By its terms, however, the
Mil.R.Evid. 304(g) corroboration requirement appears to be limited to those sorts of statements which require rights-warnings and waivers. See generallyMil.R.Evid. 304 and305 . Statements of an accused falling under any other evidentiary rule, including apparentlyMil.R.Evid. 801(d)(2) (”Admission by party-opponent“) as well asMil.R.Evid. 803 and804 (”Hearsay exceptions“), are not assigned a corroboration requirement.
Id. at 221 (Cox, J., concurring). It is not clear from Judge Cox‘s concurrence what terms of the
As in Maio, the Air Force Court of Criminal Appeals’ (AFCCA) holding in Baldwin is independent of its discussion of whether the corroboration requirement applies to confessions and admissions made outside interrogation. Baldwin, 54 M.J. at 555-56. Trial counsel used Baldwin‘s incriminating statements to his mother to corroborate his written confession to the Air Force Office of Special Investigations (AFOSI). Id. at 553. Baldwin objected to lack of corroboration of the AFOSI confession, but he forfeited any objection to his statements to his mother for lack of corroboration. Id. at 555. Without citing Judge Cox‘s Maio concurrence, the AFCCA then commented on the admissibility of the appellant‘s admissions to his mother under
In an unpublished opinion in Byrd, this court reversed an MJ‘s redaction of the ap-pellant‘s confession to NCIS for insufficient corroboration. 2006 WL 4572849, at *6-7, 2006 CCA LEXIS 293, at *20. Among the facts corroborating Byrd‘s confession was his statement to a shipmate that “he had ‘hit that,‘” referring to sexual intercourse with the victim. Id. at *6, 2006 CCA LEXIS 293, at *16. In a footnote, this court wrote that the statement was admissible under
It is worth noting a later case in which the AFCCA reviewed an MJ‘s reliance on Baldwin to admit an accused‘s uncorroborated admission of pre-service drug use to a classmate as corroboration for a confession to law enforcement. United States v. Stevens, No. ACM S30170, 2004 WL 1724702, 2004 CCA LEXIS 168, unpublished op. (A.F.Ct.Crim.App. 20 Jul 2004). Instead of affirming the MJ‘s admission of the uncorroborated admission, the court demurred. Id. at *4, 2004 CCA LEXIS 168, at *9 (“We need not decide whether the military judge correctly ruled that the appellant‘s uncorroborated admissions to Airman [R] could be used to corroborate her admission of pre-service drug use to the JDET agent.“).
The argument and case law presented in support of limiting the corroboration requirement to confessions and admissions elicited in law enforcement interrogations are neither binding nor persuasive. We find no legal basis for ignoring the plain language of
III. Sufficiency of Corroborating Evidence in Alleged Victim‘s Testimony
Finally, the Government avers that the MJ erroneously presented the minority position in United States v. Adams, 74 M.J. 137 (C.A.A.F. 2015), as the law governing corroboration and then applied this misinterpretation of the law to require “one-for-one” corroboration of every fact going to a crime‘s elements.7 Once again, we review an MJ‘s decision to suppress evidence for an abuse of discretion—an erroneous statement of the law, clearly erroneous findings of fact, or a conclusion outside the range of reasonable discretion. Miller, 66 M.J. at 307.
For clarity, we revisit the text of the corroboration requirement at
(1) An admission or a confession of the accused may be considered as evidence against the accused on the question of guilt or innocence only if independent evidence, either direct or circumstantial, has been admitted into evidence that corroborates the essential facts admitted to justify sufficiently an inference of their truth.
(2) Other uncorroborated confessions or admissions of the accused that would themselves require corroboration may not be used to supply this independent evidence. If the independent evidence raises an inference of the truth of some but not all of the essential facts admitted, then the confession or admission may be considered as evidence against the accused only with respect to those essential facts stated in the confession or admission that are corroborated by the independent evidence.
(3) . . .
(4) Quantum of Evidence Needed. The independent evidence necessary to establish corroboration need not be sufficient of itself to establish beyond a reasonable doubt the truth of facts
stated in the admission or confession. The independent evidence need raise only an inference of the truth of the essential facts admitted. The amount and type of evidence introduced as corroboration is a factor to be considered by the trier of fact in determining the weight, if any, to be given to the admission or confession. (5) Procedure. The military judge alone is to determine when adequate evidence of corroboration has been received....
(Emphasis added).
It is well-established that, “[t]he corroboration requirement for admission of a confession at court-martial does not necessitate independent evidence of all the elements of an offense or even the corpus delicti of the confessed offense.... Rather, the corroborating evidence must raise only an inference of truth as to the essential facts admitted.” United States v. Cottrill, 45 M.J. 485, 489 (C.A.A.F. 1997) (citations omitted). As opposed to the elements or corpus delicti of an offense, essential facts refer to those found “in the confession” or admission to be admitted. Maio, 34 M.J. at 218. Essential facts may vary by case but have included “the time, place, persons involved, access, opportunity, method, and motive of the crime.” Adams, 74 M.J. at 140 (citations omitted).
To be admissible, an essential fact in a confession or admission must be corroborated by independent evidence of that essential fact. Id. The quantum of independent evidence adequate to corroborate an essential fact need only be “slight.” United States v. Yeoman, 25 M.J. 1, 4 (C.M.A. 1987). But the evidence must be relevant to the essential fact. Independent evidence of one essential fact does not extend to other essential facts; each essential fact requires its own independent evidence in corroboration. Adams, 74 M.J. at 140, n.7 (“The dissent would change the standard in
The Government points to the MJ‘s citations to the dissent in Adams and argues he erroneously applied Chief Judge Baker‘s hyperbolic mischaracterizations of the majority holding as the law. However, the MJ quoted Chief Judge Baker‘s dissent as “instructional” only after explicitly grounding his ruling in the majority opinion in Adams.8 He prefaced his ruling with “[t]he Court‘s binding interpretation in Adams that ‘[i]f sufficient corroborating evidence of an essential fact is not provided, then the uncorroborated fact is not admissible and the military judge must excise it from the confession‘....”9 Acknowledging that the majority might disagree with the characterization, the MJ quoted Chief Judge Baker‘s observation that “‘the majority thus requires that every essential fact identified in a confession must be individually corroborated on a one-for-one basis[.]‘”10 The MJ substantiated the “one-for-one corroboration requirement” by accurately paraphrasing the Adams majority: “C.A.A.F. uses the example that if four of five essential facts are corroborated then only those four corroborated facts are admissible against the ac-
We next review the MJ‘s findings of fact for clear error. Following the list of “previously considered” essential facts in Adams, the MJ detailed the following:
- The time in this case can be narrowed to the early morning hours of 4 October 2014.
- The place can be identified as the barracks room of BNS.
- The persons involved can be identified as the accused and BNS.
- Access to the accused‘s room prior to the alleged sexual activity is established through the testimony of AM3 [A] and access after is established by BNS in that she saw the accused walking out her door the following morning.
- Once AM3 [A] left, the accused had the opportunity to engage in sexual activity with BNS.
- There is no independent evidence of the method used, or that any method whatsoever was used.
- There is no independent evidence of any crime occurring, much less any motive to commit it.12
The MJ then documented his search for evidence corroborating the method of sexual assault.
The Court asked if there was, and provided the [G]overnment the opportunity to provide any, evidence of sexual activity or penetration to include vaginal soreness, seminal fluids in her vagina, condom wrapper, used condom, DNA, wet spot on sheets, seeing the accused naked, seeing the accused lying in the bed, testimony to the effect of ‘a woman knows her body and knows when she has experienced sexual intercourse and that she experienced sex’ or any other independent evidence that corroborates the essential facts admitted.13 The MJ:
queried the [G]overnment to provide any additional evidence beyond the admissions of the accused and noted there was no independent evidence any [sic] sexual activity from either [BNS] or any other witness. The only somewhat corroborating evidence as to anything taking place was the evidence that the accused was in the room of [BNS], that [BNS] woke up naked from the waist down the following morning and that [BNS] saw the accused leaving her room.14
Having carefully reviewed the record and pleadings, we find no clear error in the MJ‘s findings of fact and proceed to his conclusions of law. Pursuant to
After mining the evidence for corroboration of essential facts in the appellee‘s admissions, the MJ concluded: “In the instant case, the essential fact of penetration of [BNS‘s] vagina by the accused‘s penis is not corroborated. The essential fact of penetration of the [BNS‘s] vagina by the accused‘s finger is not corroborated.”15 Citing language from the Adams majority, the MJ held,
[T]he admission ‘we made whoopy’ and the admissions of ‘fingering her,’ ‘inserted it,’ and ‘penetrated her’ must be excised from the otherwise admissible admissions of the accused[.] . . . Without such evidence, there is no other admissible evidence that any sexual activity, much less penetration, ever took place.16
Finding no corroboration of sexual activity, as well as no corroboration of its method, the MJ invited the Government‘s allegation that he required proof of the corpus delicti, or body of the crime, contrary to the Cottrill line of cases. Whether the appellee‘s admission of consensual sexual activity with BNS constituted the body of the crime of sexual
Other cases assessing corroborating evidence provide a reference for analyzing the MJ‘s conclusion that the evidence in this case fell short of corroborating essential facts of the appellee‘s admission to NCIS. In his written ruling, the MJ distinguished the independent evidence sub judice from the evidence in Cottrill. The Cottrill case also involved an alleged sexual assault and an accused‘s admission he digitally penetrated his daughter. 45 M.J. at 487. However, the child victim in Cottrill told witnesses that “‘her privates hurt‘” and that her daddy touched her privates. Id. at 486, 489. A medical examination revealed an unnatural opening in the young girl‘s hymen, which the doctor considered consistent with sexual abuse. Id. at 489. The court found the victim‘s statements and the forensic evidence corroborated the appellant‘s admissions that he digitally penetrated his daughter. Id.
In United States v. Foley, the victim awoke to find a “completely nude man in her bed who put her hand on his penis. When he became erect, he attempted to enter her vagina.” 37 M.J. 822, 834 (A.F.C.M.R. 1993). She later identified the man as the appellant. Id. Although she did not remember him performing oral sex on her, “she did recall moistness in her vagina.” Id. The Air Force Court of Military Review found “ample corroboration—even of the oral sex that the victim did not recall—to warrant denial of the suppression motion.” Id.
In United States v. Brown, the appellant argued that his admission to performing oral sex on the victim was uncorroborated and thus inadmissible because the victim had no memory of the act. No. ACM 38497, 2015 WL 1524453, at *6, 2015 CCA LEXIS 81, at *17, unpublished op. (A.F.Ct.Crim.App. 3 Mar. 2015). A witness, checking on the intoxicated victim, found the appellant in a dark room with the victim. Id. at *1-2, 2015 CCA LEXIS 81, at *3. Both the appellant‘s and victim‘s pants were down, they both had erections, and the appellant was on top of the victim holding the victim‘s penis in his hand while the victim lay with “his arms crossed over his body and looked lifeless.” Id. at *2, 2015 CCA LEXIS 81, at *3-4. Forensic testing also revealed the appellant‘s DNA on the victim‘s boxer shorts, belt, and jeans. Id. at *6, 2015 CCA LEXIS 81, at *17. The AFCCA agreed with the military judge that “there was sufficient corroboration of the essential facts of the appellant‘s admission.” Id. at *7, 2015 CCA LEXIS 81, at *18 (“Under the circumstances of this case, the presence of the appellant‘s DNA on the victim‘s boxer shorts and their states of arousal were highly suggestive of sexual activity.“).
As noted on the record and in the MJ‘s written ruling, no witness, including BNS, testified to observations, physical sensations, or injuries that corroborated sexual activity. Investigators found no physical evidence of sexual activity, whether DNA or a condom wrapper. Comparing the evidence presented sub judice to evidence in the cases discussed supra, we find no abuse of discretion in the MJ‘s determination of the inadequacy of the evidence in corroboration. The record and the majority opinion in Adams provide a solid foundation for the MJ‘s findings of fact, interpretation of law, conclusions of law, and suppression of essential facts in the appellee‘s admissions.
CONCLUSION
The appeal is denied, and the record is returned to the Judge Advocate General for return to the convening authority.