Thursday, October 25, 2007

New published CGCCA opinion

The Coast Guard Court issued a new published opinion today. United States v. Stellon, __ M.J. ___, No. 1264 (C.G. Ct. Crim. App. Oct. 25, 2007).

Stellon deals with a military judge's limitations during cross-examination of the complaining witness in a rape case. Two years after she and Petty Officer Stellon had sexual intercourse (an act that Stellon confessed was non-consensual), the complaining witness had sex in a car and four days later reported that she had been raped. She later admitted that that report was untrue. She also, apparently, fabricated evidence, including ripping her panties. This fact seems particularly significant because her panties were allegedly ripped in the incident involving Petty Officer Stellon.

The military judge allowed sufficient cross-examination for the members to understand that the complaining witness had falsely reported a rape two years after the incident involving Petty Officer Stellon. But the military judge limited the amount of cross-examination, excluded the torn panties from the second incident from evidence, and refused to allow the defense to present evidence that an investigator had told her after she recanted her allegation that she might be charged with filing a false police report.

The Coast Guard Court upheld the military judge, ruling that he acted within his discretion to limit the cross-examination. The court reasoned:

Contrary to Appellant's argument, we find no abuse of discretion by the military judge in limiting the details of AD’s 2004 false report, including the composite sketch. The record reveals that the military judge conscientiously evaluated the accused’s right to present material evidence to impeach AD under M.R.E. 608(b) and 403. He allowed the defense some cross-examination of AD and testimony by police investigators on the details of the 2004 complaint, in addition to AD's admission that she had, in fact, filed such a false report with police.
Stellon, slip op. at 4.

Concerning the military judge's exclusion of the ripped underwear evidence, the court again upheld the military judge, though with some disagreement with his reasoning:

When the defense later offered the underwear itself and the police officer's testimony about it (R. at 801-02), the military judge excluded the evidence, at least partly under M.R.E. 412 as evidence of other sexual behavior. We find his invocation of M.R.E. 412 strained, but we see no basis for admitting the underwear evidence. According to counsel, that evidence would bear on AD's credibility. The association of ripped underwear with a report of rape by AD was a point the 2002 and 2004 reports had in common. In other words, as Appellant puts it now, since she lied in 2004 when she told a story that included ripped underwear, the members should infer that she had lied in 2002 when she told a story that included ripped underwear. This point was conveyed during defense counsel's closing argument, using the evidence that had been admitted. Further evidence of the ripped underwear to support this theory, in our view, runs afoul of M.R.E. 404(b): evidence of her act in 2004 "is not admissible . . . in order to show action in conformity therewith" in 2002; and the M.R.E. 608(b) exception does not reach the police officer's testimony or the underwear itself because that evidence would be extrinsic evidence. The evidence was excludable on this basis.

Stellon, slip op. at 4-5.

As to the investigator's statement to the complaining witness that she could be charged with a crime for her false report, the court held that "M.R.E. 608(c) could provide a basis for admission of evidence that AD had been advised that she could be charged with filing a false statement." Id., slip op. at 5. But the court nevertheless upheld the military judge's exclusion of the evidence because the defense never cited Military Rule of Evidence 608(c) when arguing for the evidence's admissibility.


John O'Connor said...

A couple of things I don't get about this case:

(1) If the accused admitted to raping the complainant the day after it happened, why was he tried for this offense AFTER a false rape report that occurred 18 months later?

(2) If the accused admitted to the rape the day after it happened, why was he pleading not guilty? I mean, wasn't he dead at that point?

(3) Why would a convening authority in his right mind suspend even three months of a rape sentence for someone who had confessed but then decided to plead not guilty and put the trial counsel and command to the effort and expense of a trial? O'Connor's Law #2 says that if the CA starts giving clemency in not guilty cases, then his legal officer needs to come over and start trying the command's courts-martial.

Phil Cave said...

1. On the panties, it seems the court is correct. There had already been ample testimony and an admission by the witness that she had ripped her panties in order to further her false allegation of rape. Unless of course the defense had been able to show that the rip(s) in the panties were made in an identical way/method -- a similarity. But the defense didn't argue that.

2. The "failure" to cite the specific rule of potential admission (608(c)) seems to put form over substance. The court's "waiver" finding seems particularly parsimonious under the circumstances. But it seems to be an increasingly noticeable pattern of appellate courts over a period of time -- cite the specific rule or you've waived the issue. There doesn't seem to be much allowance for the give and take of the courtroom. That's why I recommend counsel cite a "litany" (as one judge complained to me once) of each rule that you believe has a potential bearing on the issue, and always always cite 403. At least then you may perturb the judge but preserve the issue.

3. Jock, sexual offender registration. Many clients will now want to plead NG because they want to roll the dice. If they get acquitted (and some do even with "confessions"), they don't have to register as a sex offender. Enough members panels (especially enlisted ones) are suspicious of CID/OSI/ NCIS. My experiences tells me that sex offender registration laws have been something of an impetus to plead NG and take a chance, regardless of the evidence. And the interesting part is that taking a chance can work. It may not always work on the merits, but it can help on sentencing. "Litigate to mitigate," is my theory on this.

Anonymous said...

1. Not all confessions given to the authorities are voluntary. I recently obtained an acquittal in a case with a confession when we provided evidence that the CID told a number of other witnesses that they shouldn't testify that they saw consensual activity between the two because the accused had already confessed. All of the witnesses said CID had made their mind up, and would not accept anyone's view that it was consensual.
2. Wouldn't it be inappropriate for a CA to punish someone for pleading not guilty? The CA should feel free to give clemency to anyone s/he feels deserves it, regardless of the plea.
3. Brother Phil is right. Given the onerous nature of sex offender registries, and the failure to differentiate between offenses, it is usually better to try the case and "roll the dice."

John O'Connor said...

As for why he pleaded not guilty, I guess it's true that sex offender registries might conme into play and, yes, I also saw at least one court-martial where a Marine confessed and got acquitted nonetheless. It also could have been a case of the CA saying "no deal," or offering a deal so stingy that there was no incentive to plead.

Bill Cassara, I don't agree with your proposition that it is punishing an accused to deny clemency where he pleaded not guilty. Just as acceptance of responsibility is a relevant consideration on sentencing (without "punishing" those who decided not to accept responsibility), acceptance of responsibility and saving the government the expense of a trial are valid considerations in deciding whether to grant what is essentially a gift through clemency.

Anonymous said...

I have seen many an SJA recommend clemency when a panel comes back with an exhorbitant sentence after a not guilty plea. While acceptance of responsibilty is a relevant consideration, the CA can and should take action when a panel comes back with a sentence that is outside the realm of what justice requires.

Phil Cave said...

High PTA offers from CA's is a big factor. In a large number of cases the TC/SJA recommendation to the CA -- which they usually accept -- is one of the most common reasons for a litigate to mitigate strategy. if you've got a 90 - 95% chance of "beating the deal" and you know that the MJ is going to top or come close to "the deal," you have a situation where it may be better to litigate. Of course the client has to know their "tolerance for pain or risk," level if you may be in the small percentage that isn't going to beat the deal. As brother Bill and I discussed just yesterday, it's gut-wrenching, but . . . . When TC/SJA's come closer to recommending a reasonable deal, then you'll have a tougher time deciding whether or not to litigate, until then -- litigate to mitigate.

John O'Connor said...


I agree with most of that. When I was a TC, I tried to get deals that were better than the accused could expect at trial (though not in the "I'm afraid to try a case" range, which is where some TCs deal). I would get a little nervous if accuseds kept beating the deal because that would incentivize counsel to take their client to trial, which is a drain on resources.

Marcus Fulton said...

This case presents a rare government-friendly opportunity to untangle 404(b)'s "common scheme or plan" analysis from the question of how similar the prior act is--a problem I've griped about last March. Apparently, you can't link to stuff in a comment, though.