Colorado Supreme Court
Colorado v. Johnson, No. 2021 CO 35, 396 P.3d ____ (2021), suggests an accused must make a Hobson's choice in some situations when he wants to testify, yet there is successfully suppressed evidence. There is the potential for impeachment with the suppressed evidence if the accused testifies. When advising an accused about testifying it is common to identify the value added beyond what is already in evidence and then balance that with any devaluation that might be caused through cross-examination or contradiction. Where there is suppressed evidence the defense becomes the gate-keeper.
So what about the situation where the core part of the defense may lead to trial counsel wanting to impeach or contradict with prior suppressed evidence?
Mil. R. Evid. 304(e)(1) and 311(c)(1) give a partial answer—but does the decision require a more sophisticated analysis? And what should a military judge do when she gets a defense motion-in-limine asking for a ruling about use of suppressed evidence on cross-examination (kick the can down the road) or when the case blows up? Danger, Will Robinson should you decide to testify!
Walder v. United States, 347 U.S. 62 (1954) and James v. Illinois, 493 U.S. 307 (1990), may help further to frame the issue for discussion which brings us Colorado v. Johnson, and the court's discussion of evidence rules and U.S. Supreme Court precedent. In summary,
In this opinion, the supreme court reviews a decision of a divided panel of the court of appeals holding that the trial court reversibly erred by forcing the defendant to choose between excluding unconstitutionally seized evidence and fully pursuing an alternate suspect theory at trial, thereby violating the defendant's right to present a complete defense. The supreme court holds that the impeachment exception to the exclusionary rule does not extend to a defendant's truthful, yet incomplete, presentation of evidence: A defendant may offer such evidence, under the particular circumstances here, without opening the door to previously suppressed evidence.
The court then
[C]oncludes that a defendant may offer truthful, albeit potentially incomplete, evidence without opening the door to previously suppressed evidence. This is because the important truth-seeking rationale that prohibits a defendant from turning the exclusion of illegally obtained evidence into a shield for perjury does not apply with equal force to truthful but potentially misleading testimony. Accordingly, we affirm the judgment of the court of appeals.
The dissent argues that, by its decision, the court creates a situation where an accused can exploit the exclusionary rule in an affirmatively misleading manner.
Army Court of Criminal Appeals
(Note, ACCA is again on a post-trial delay tear.)
United States v. Rivera. Appellant pleaded guilty to a sexual assault, an assault and battery, and one battery of a child. He was sentenced to five years and a DD+. He raised dilatory processing and a post-trial error. The granted credit for the delay and made a correction to the entry of judgment.
United States v. Figueroa. Appellant pleaded guilty to three specifications of wrongful use, one of possession, and one of producing, possessing, and distributing CP. He was sentenced to 29-months confinement and a BCD. He received one month extra credit for post-trial delay. The decision begins,
As we were in United States v. Brown, 81 M.J. 507 (Army Ct. Crim. App. 2021), we are once again at a loss as to why it takes a division legal office [(1st Cav.)] over 100 days to mail a 106-page record of trial to this court.
United States v. Meadows. Appellant pleaded guilty to one specification of conspiracy to escape pretrial confinement, larceny of less than $500.00, and unlawful entry. He was sentenced to six months confinement and a BCD. Here, despite the delay there was no credit.
United States v. McKee. Appellant pleaded guilty to two assaults and battery, one aggravated assault with a dangerous weapon, four F2G, twice willfully disobeying an officer, and disobedience of a general order. He was sentenced to 36-months and a BCD. The court found credit required for dilatory post-trial processing and affirmed the findings.
United States v. Cuevasibarra. An enlisted panel convicted appellant of failing to obey a general order and one sexual assault. He was acquitted of maltreatment, sexual assault, two instances of abusive sexual contact, and two assaults and battery. The MJ sentenced him to 40 months and a DD+. Because the military judge erred in declining to admit some Mil. R. Evid. 412 evidence, the court set-aside some findings and remanded for a rehearing (or not).
Appellant's case arises from a single interaction with Private First Class (PFC(complainant"), in which she alleged appellant repeatedly penetrated her vulva with his penis without her consent. Three months before trial, defense counsel filed a notice of intent to admit certain evidence pursuant to Mil. R. Evid. 412(b)(l)(C).
A note of caution about a recurring issue.
Trial counsel will argue there is no truth or credibility to the proffered evidence, and some judges will accept that.
Because it is through this lens that we analyze a military judge's decision to exclude evidence, we are ever vigilant to ensure the military judge's ruling does not invade the province of the fact finder, but instead merely assures "the evidence meets the usual evidentiary standards." United States v. Banker, 60 M.J. 216, 222, 224 & n.5 (C.A.A.F. 2004) (quoting United States v. Platero, 72 F.3d 806, 812 (10th Cir. 1995)). "In applying Mil. R. Evid. 412, the judge is not asked to determine whether the proffered evidence is true; it is for the members to weigh the evidence and determine its veracity." Id. at 222. Instead, the military judge must simply determine whether the evidence is relevant under Mil. R. Evid. 40 I, and then apply the balancing test under Mil. R. Evid. 4!2(c)(3). Id.
United States v. Council. An enlisted panel convicted Appellant of willfully disobeying a senior officer, one specification of disobeying a general order, one specification of sexual assault, and adultery. He was sentenced to seven years, and a DD+.
This is an appellant living with HIV who did not inform another of his status prior to sex and if he had, she would not have had sex with him. The issue relates primarily to the military judge’s instructions and to the impact of United States v. Forbes, 78 M.J. 279 (C.A.A.F. 2019). Part of the issue is the appellant’s viral load which, based on current research, was so low he would not transmit the HIV. Appellant argued that because his viral load was so low the disclosure order was unlawful and he did not have to obey it.
Air Force Court of Criminal Appeals
United States v. Hong. In this MJA/PTA case Appellant was sentenced to eight months, a dismissal, and stuff. Appellant had committed two assaults and battery and one assault. His sole issue on appeal was credit for post-trial delay. The court has added to the delay by remanding the case for correction of post-trial errors.
We are seeing a lot of AF cases affected by post-trial error. So, the question is, who in leadership is taking ownership of these recurring issues? See also, United States v. Martinez; United States v. Maurer, United States v. Murphy, United States v. Ramos. (All decided about the same time as Hong and prior AF cases). These post-trial cases are potentially clogging the court and, in many, further delaying appellate review. Will AFCCA begin giving post-trial sentence credit or something similar?
Potential Appellate Cases
United States v. Naughton. He is in pretrial confinement pending general court-martial on Reconnaissance Marine accused of stealing ammunition from an armory on Camp Pendleton will go to court-martial, military officials said on Tuesday, May 25.
Sgt. Gunnar Naughton has been referred to a general court-martial with a trial date set for July 1 at Camp Pendleton, said 2nd Lt. Kyle McGuire, spokesman for the 1st Marine Division.
United States v. Hernandez-Perez. A 24-year-old married Schofield Barracks soldier who had rekindled a relationship with his high school sweetheart took out a $100, 000 life insurance policy on his wife, Googled how many swings it took to kill someone with a baseball bat, and beat and stabbed her to death following their first wedding anniversary, an Army prosecutor said Thursday. At an Article 32 hearing [trial counsel] asked the hearing officer to find probable cause that Spc. Raul Hernandez Perez committed premeditated murder in the death of SR, 25, whose body was discovered Jan. 13 in a garbage bin dragged into her Schofield home. He is being held in the brig on Ford Island.
United States v. Morales-Sanchez. A Fort Bliss judge sentenced a soldier to more than 40 years in prison for murdering a child with his hands, along with a string of other charges including drug use and domestic violence, according to officials at the Texas Army base. He pleaded guilty to willfully disobeying a superior commissioned officer, making a false official statement, using cocaine, simple assault, assault consummated by a battery, aggravated assault and conducting an extramarital affair, according to Fort Bliss. He pleaded not guilty to murder but was convicted by a military judge.
United States v. Perez. In court papers, Army prosecutors allege Sgt. Maj. Benito A. Perez Jr., coerced girls to disrobe while he exposed himself, had lewd online communications with an underage female while overseas, and persuaded the private to provide him with photos.
Worth the Read
The brownie defense redux? A Canadian soldier is facing over a dozen charges after she allegedly served cannabis-laced cupcakes to an artillery unit during a live-fire training exercise without their consent. According to the court documents, almost all of the soldiers who ate Cogswell's cupcakes experienced a sudden onset of paranoia, fatigue and confusion and were unable to properly handle weaponry. (Caution, war story. We had this many years ago. The Wardroom of a ship began acting weird and we got some walk-in officer clients suspected of drug use. Turns out that, yes, their meal a few days earlier had been adulterated.)
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