

   
   
   
   U.S. v. Langston



UNITED STATES, Appellee
v.
Homer R. LANGSTON, Sergeant First Class
U.S. Army, Appellant
 
No. 99-0419
Crim. App. No. 9700358
 
United States Court of Appeals for the Armed Forces
Argued January 19, 2000
Decided August 25, 2000
 

SULLIVAN, J., delivered the opinion of the Court, in which CRAWFORD,
C.J., GIERKE, and EFFRON, JJ., and EVERETT, S.J., joined.

Counsel
For Appellant: Captain Joshua E. Braunstein (argued); Colonel
Adele H. Odegard, Major Scott R. Morris and Captain Donald P. Chisholm
(on brief); Colonel John T. Phelps II and Captain Kirsten V.
Campbell-Brunson.
For Appellee: Major Patricia A. Ham (argued); Colonel Russell
S. Estey and Lieutenant Colonel Eugene R. Milhizer (on brief).
Military Judge: Peter E. Brownback, III

 

This opinion is subject to editorial correction before publication.

Judge SULLIVAN delivered the opinion of the
Court.
In early 1997, appellant was tried by a military
judge sitting alone at a general court-martial in Mannheim, Germany. In
accordance with his pleas, he was found guilty of maltreatment of a subordinate,
adultery, indecent assault, using indecent language, indecent exposure,
and obstruction of justice, in violation of Articles 93 and 134, Uniform
Code of Military Justice, 10 USC §§ 893 and 934, respectively.
Contrary to his pleas, he was also found guilty of additional specifications
of the offenses to which he pleaded guilty. He was sentenced to a dishonorable
discharge, confinement for 42 months, total forfeitures, and reduction
to the grade of E-1. The convening authority approved the sentence as adjudged
on June 20, 1997, and the Army Court of Criminal Appeals affirmed. See
United States v. Langston, 50 MJ 514 (Army Ct. Crim. App. 1999).
On September 1, 1999, this Court granted review
of the following two issues:




I
WHETHER THE ARMY COURT OF CRIMINAL APPEALS
ERRED BY HOLDING MIL. R. EVID. 615 DID NOT APPLY TO THE PROVIDENCE INQUIRY
AND THAT THE MILITARY JUDGE WAS NOT OBLIGATED TO SEQUESTER CERTAIN WITNESSES
AT THE REQUEST OF THE DEFENSE.

II
WHETHER THE MILITARY JUDGE ERRED BY ALLOWING
MERITS WITNESSES TO SIT IN THE COURTROOM DURING SFC LANGSTON'S PROVIDENCE
INQUIRY OVER HIS OBJECTION, THEREBY PREJUDICING SFC LANGSTON.



We hold that Mil.R.Evid. 615, Manual for Courts-Martial,
United States (1995 ed.), did apply to appellant's providence inquiry in
this mixed-pleas case. See United States v. Spann, 51 MJ
89, 93 (1999) (holding Mil. R. Evid. 615 applies in contested case where
victim-witness who was spectator only testifies on sentence). Nevertheless,
we conclude that appellant was not prejudiced by the military judge's failure
to sequester the three victim-witnesses as required by this evidentiary
rule. Id. See Article 59(a), UCMJ, 10 USC § 859(a).
Appellant is a married soldier with approximately
18 1/2 years of active service. He began his initial tour of enlistment
in 1967, served in Vietnam, and then had almost a 12-year break in his
military service before returning to active duty in 1981. At the time of
these offenses, appellant was assigned to the staff at Mannheim prison
in Germany as a platoon sergeant where he repeatedly maltreated three female
prison staff members, Specialist (SPC) T, Private First Class (PFC) W,
and Staff Sergeant (SSG) C, by making offensive sexual remarks and advances,
committing indecent assaults, and indecently exposing himself to them.
At this court-martial, after appellant entered
his pleas, the military judge stated, "[Y]ou've requested, Mr. Cohen, that
I exclude certain personnel during the providence inquiry, correct?" R.
25. Civilian defense counsel responded, "Correct." Id. The military
judge then made the following ruling:



The court rules that under the applicable
[Mil. R. Evid.], a providence inquiry is not testimony and the court will
not exclude any personnel during the providency inquiry other than as I
said about the back door [being left open] but that objection is now on
the record.



Id. Following the providence inquiry, SPC
T testified on the merits of the contested charges against appellant. R.
88-143, 153-56. PFC W testified on the merits and on sentencing. R. 156-75,
245-47. SSG C testified on sentencing. R. 247-54.
The record of trial does not state which witnesses
were actually present during the providence inquiry. However, in an unrebutted
affidavit admitted before the appellate court below, appellant states that
the three victim-witnesses were all present in the courtroom during his
providence inquiry. Appellant's Affidavit dated 29 Oct. 1998.

  
Appellant argues that "Mil. R. Evid. 615 applie[d]
during the providence inquiry" in his case and the three victim-witnesses
should have been sequestered as he requested. He also contends that the
"military judge's refusal to grant a party's request under th[is] rule
resulted in error in which prejudice is presumed or held to be manifest,
requiring reversal of relevant findings and their sentence." Appellant's
Final Brief at 5. The appellate court below concluded that Mil. R. Evid.
615 "does not govern the posed sequestration issue" because appellant's
providence inquiry responses were not the kind of "testimony" required
by that rule. Nevertheless, assuming this rule applied to appellant's case,
it further held that there was no prejudice to appellant resulting from
the presence of the victim-witnesses during the providence inquiry. United
States v. Langston, 50 MJ at 516-17.
We agree with appellant that Mil. R. Evid.
615 applied in this case.
Mil. R. Evid. 615 provides:



Rule 615. Exclusion of Witnesses.
At the request of the prosecution or defense
the military judge shall order witnesses excluded so that they cannot hear
the testimony of other witnesses, and the military judge may make the
order sua sponte. This rule does not authorize exclusion
of (1) the accused, or (2) a member of an armed service or an employee
of the United States designated as representative of the United States
by the trial counsel, or (3) a person whose presence is shown by a party
to be essential to the presentation of the party's case.



(Emphasis added.) "The purpose of the sequestration
rule is to prevent witnesses from shaping their testimony to match another's
and to discourage fabrication and collusion." United States v. Miller,
48 MJ 49, 58 (1998), citing United States v. Croom, 24 MJ 373, 375
(CMA 1987); see Geders v. United States, 425 U.S. 80, 87
(1976).1
If a military judge determines that a witness
for whom sequestration is sought does not fall within one of the exceptions
to Mil. R. Evid. 615, he or she must sequester that witness. See
Annotation, Exclusion of Witnesses under Rule 615 of Federal Rules of Evidence,
48 ALR Fed. 484 (1980 & 1999 Supp.); see also United
States v. Jackson, 60 F.3d 128, 134, 135 (2d Cir.), cert.
denied, 516 U.S. 980, 1130, and 1165 (1995); United States v.
Warren, 578 F.2d 1058, 1076 (5th Cir. 1978) (en banc), cert.
denied, 446 U.S. 956 (1980); United States v. Johnston, 578
F.2d 1352, 1355 (10th Cir.), cert. denied, 439
U.S. 931 (1978). A military judge's decision concerning whether a witness
falls within one of the three exclusion exceptions to Mil. R. Evid. 615
is reviewed under an abuse-of-discretion standard. See United
States v. Miller, 48 MJ at 56. However, in the case sub judice, the
military judge denied appellant's sequestration request on the basis that
Mil. R. Evid. 615 did not apply at all to providence inquiries. R. 25.
This was a legal ruling, which we review de novo. See United
States v. Spann, supra at 93 (holding that military judge erred
by relying on federal statute to reject application of Mil. R. Evid. 615).
During the providence inquiry in this case,
appellant was put under oath (R. 29) and his responses were judicial admissions,
the strongest form of proof in our legal system. See United States
v. Irwin, 42 MJ 479, 482 (1995); United States v. Holt, 27 MJ
57, 59 (CMA 1988) (guiltyplea-inquiry answers are sworn testimony). Moreover,
he entered mixed pleas of guilty and not guilty in this case, thus necessitating
a full-fledged trial on the merits of the contested charges. Finally, after
the providence inquiry, the sentencing phase of the trial still had to
occur, where a concern for shaped or false testimony remained. See
United States v. Spann, supra at 93. In our view, Mil. R.
Evid. 615 applied in these circumstances.2
The remaining question in this case is whether
appellants findings and sentence should be overturned because the military
judge erroneously failed to sequester the three victim-witnesses in this
case. See United States v. Spann, 51 MJ at 93. The appellate
court below found no prejudice was suffered by appellant as a result of
these errors. It stated:



We assume for purposes of analysis only,
that the three victim-witnesses were present and heard the appellants
providence responses. The victim-witnesses testified on the merits and
during the sentencing phase of the trial. The defense counsel never cross-examined
SSG C, SPC T, or PFC W to determine if they had been present during the
appellants providence inquiry and, if so, what impact, if any, that presence
may have had on their in-court testimony. The government argues that their
testimony was materially consistent with their Article 32 testimony and
pretrial sworn statements. The appellant has presented no evidence to the
contrary nor shown that the testimonies of the victim-witnesses were contaminated
even if they were present during the appellants providence inquiry. Accordingly,
this court finds that the appellant has suffered no prejudice as to findings
and sentence.



50 MJ at 517 (footnotes omitted).
In view of appellants objection at trial to
the presence of the three victim-witnesses, we conclude that a harmless-error
analysis is appropriate. See United
States v. Spann, supra at 93; see generally United
States v. Jackson, 60 F.3d 128, 136-37 (2d Cir. 1995) (discussing
possible appellate standards for reversal for such error in Federal Courts
of Appeals but adopting harmless-error standard, placing burden on Government
to show "failure to sequester was harmless"). We must decide whether the
erroneous failure to sequester the three victim-witnesses in appellants
case did not materially prejudice appellants substantial rights. Article
59(a).
Turning to the record before us, we note that
PFC W testified on the merits of the contested charges. R. 156-75. This
record also makes clear that this witness' pretrial statements and Article
32, UCMJ, 10 USC § 832, testimony were available to the parties for
impeachment. See Hollman v. Dale Electronic, Inc., 752 F.2d
311, 313 (8th Cir. 1985) (harmless error where pretrial depositions
"available for impeachment"); cf. United States v. Bethea,
22 USCMA 223, 46 CMA 223 (1973) (holding unadmitted pretrial statements
considered at Article 32 investigation not part of record for legal-sufficiency
purposes). PFC W also testified at sentencing, but only as to the impact
of appellant's crimes on her, R. 245-47. Accordingly, we conclude that
there was no reasonable possibility that her testimony was altered by what
she heard during appellant's providence inquiry. See United States
v. Spann, supra.
SSG C was not required to testify on the merits
because appellant stipulated to the acts underlying his plea of guilty
with regard the charged offenses involving her. R. 175-78. Her testimony
on sentencing during direct examination, like that of PFC W, only went
to victim impact. There was no dispute as to how these offenses occurred
or any conflict with appellants guilty-plea admissions. R. 247-54. Accordingly,
we see no possibility of altered testimony on her part.
SPC T also testified on the merits in this
case. R. 88-143, 153-56. Again, her pretrial statements and Article 32
testimony were available to the parties to disclose any alteration of her
testimony. See Hollman v. Dale Electronics, Inc., supra.
In fact, SPC T continued to assert that the adultery took place in June,
even after appellant admitted in his guilty-plea inquiry that the alleged
offense took place in September. Compare R. 33-35, 60-61, with
R. 100. Thus, she adhered to her version of the events even after
hearing appellant's contrary statements made at the providence inquiry.
The decision of the United States Army Court
of Criminal Appeals is affirmed.
FOOTNOTES:
1 "Sequestering witnesses to assist
in ascertaining truth is at least as old as the Bible. In the Biblical
story of Susanna and the Elders, Daniel exposed falsehood by insisting
that the two accusers separately describe the place where the alleged adultery
occurred. When the two described different places, Susanna was belatedly
released. Daniel 13:36-64 (King James). Daniel's technique of sequestering
witnesses is now codified in Federal Rule of Evidence 615 and well recognized
in the case law." Frideres v. Schiltz, 150 F.R.D. 153, 158 (S.D.
Iowa 1993); Opus 3 Limited v. Heritage Park, Inc., 91 F.3d 625,
628 (4th Cir. 1996).
2
The Courts of Appeals have applied the federal civilian counterpart to
Mil. R. Evid. 615 to proceedings other than the taking of testimony during
the trial of a contested charge. See e.g., United States
v. Juarez, 573 F.2d 267, 281 (5th Cir.) (holding that Fed.
R. Evid. 615 applies to closing argument and instructions, so as to avoid
any taint of witness testimony on retrial), cert. denied, 439 U.S.
915 (1978); United States v. Brewer, 947 F.2d 404, 407-10 (9th
Cir. 1991) (holding that 615 applies to evidentiary hearings conducted
to determine admissibility of evidence); United States v. Warren,
578 F.2d 1058, 1076 (5th Cir. 1978) (en banc) (holding that
Fed. R. Evid. 615 applies to suppression hearings), cert. denied,
446 U.S. 956 (1980); see also Drafters' Analysis of Mil.
R. Evid. 615, Manual for Courts-Martial, United States (1998 ed.) at A22-47
(stating that Mil. R. Evid. 615 was derived from the then-existing version
of Fed. R. Evid. 615, "with only minor changes in terminology"); but
see S. Saltzburg, L. Schinasi & D. Schlueter, Military Rules
of Evidence Manual 822 (4th ed. 1997) (stating that party may
exclude witnesses during trial testimony, but Mil. R. Evid. 615 is not
applicable "to arguments, instructions or ministerial aspects of" trial).


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