

   
   
   
   U.S. v. Sidwell



IN THE CASE OF
UNITED STATES, Appellee
v.
Jonathan E. SIDWELL, Private
U. S. Army, Appellant
 
No. 98-0595
Crim. App. No. 9601596
 
United States Court of Appeals for the Armed
Forces
Argued January 13, 1999
Decided August 13, 1999
SULLIVAN, J., delivered the opinion of
the Court, in which COX, C.J., and CRAWFORD, GIERKE, and EFFRON, JJ., joined.

Counsel
For Appellant: Captain
Donald P. Chisholm (argued); Colonel John T. Phelps, II,
Lieutenant Colonel Adele H. Odegard, and Major Holly S. G. Coffey
(on brief); Lieutenant Colonel Michael L. Walters and Captain
T. Michael Guiffre.
For Appellee: Captain Mary
E. Braisted (argued); Colonel Russell S. Estey (on brief); Colonel
Joseph E. Ross, Lieutenant Colonel Frederic L. Borch, III, Lieutenant
Colonel Eugene R. Milhizer, and Major Randy V. Cargill.
Military Judge: Larry R. Dean
 

THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.
 
 

Judge SULLIVAN delivered the opinion of the Court.
During August and September of 1996, appellant
was tried by a general court-martial consisting of officer members at Fort
Benning, Georgia. Pursuant to his pleas, he was found guilty of absence
without leave and disobeying a noncommissioned officer, in violation of
Articles 86 and 91, Uniform Code of Military Justice, 10 USC §§
886 and 891, respectively. Contrary to his pleas, he was found guilty of
aggravated assault by intentionally inflicting grievous bodily harm, in
violation of Article 128, UCMJ, 10 USC § 928. He was sentenced to
a dishonorable discharge and confinement for 3 years.
On December 31, 1996, the convening authority
approved the adjudged sentence. On March 5, 1998, the Court of Criminal
Appeals affirmed the findings of guilty, but as to the aggravated assault
affirmed only the lesser-included offense of assault with a dangerous weapon
or other means or force likely to produce death or grievous bodily harm.
The court then reassessed the sentence and affirmed a bad-conduct discharge
and 2 years confinement.
This Court granted review on July 27, 1998,
on the following issue assigned by appellant:



WHETHER THE TRIAL COUNSEL COMMITTED ERROR
OF CONSTITUTIONAL MAGNITUDE WHEN HE ELICITED TESTIMONY THAT APPELLANT INVOKED
HIS FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION.



We hold that the Government witness brief mention
of appellants "invoking his rights" when in custody for the charged offenses
was an isolated and collateral comment which was harmless beyond a reasonable
doubt under the circumstances of this case. United States v. Garrett,
24 MJ 413, 417-18 (CMA 1987); cf. United States v. Riley,
47 MJ 276 (1997).
The Court of Criminal Appeals found the following
facts concerning the granted issue:



Appellant was not a model soldier. While
training with his company at the National Training Center, Fort Irwin,
California, he refused the order of a noncommissioned officer (NCO) to
report to his scheduled kitchen police duty on 1 May 1996. He was returned
to Fort Benning, Georgia, the next day under NCO escort. Private Sidwell
was restricted, for the most part, to the Charge of Quarters (CQ) area
where he slept and was under guard by the CQ runners twenty-four hours
a day.
At about 0115 on 12 May, Sergeant (SGT)
Jones entered the barracks and found Private First class (PFC) Guinard
[appellants CQ guard] lying face down on the tile floor near the CQ desk.
The
appellant was missing. Upon being aroused, PFC Guinard grabbed the
back of his head and said he had a bump on the head and a headache. At
SGT Jones suggestion, they started for the hospital. As soon as the two
got to the barracks door, PFC Guinard noticed his car was missing. Instead
of proceeding for medical attention, SGT Jones and PFC Guinard waited at
the company for the Military Police to arrive and take a report.
When they finally arrived at the hospital emergency
room, the examining doctor found a small bump on the back of the victims
head, and diagnosed a concussion based solely on PFC Guinards claimed
unconsciousness for fifteen minutes. The victim was not disoriented and
no bumps, bruises, or abrasions that could have resulted from a fall to
a tile floor were found on PFC Guinards face. He was given medication
for the headache. There were no follow-up consultations with medical personnel.
On 21 May, appellant turned himself in to
authorities at Oakland Army Base, California. When read his Article 31,
UCMJ, rights, he invoked. At some point while being processed by military
law enforcement officials, PV1 Sidwell asked how much time he could get
for auto theft.
Charges of larceny, robbery, aggravated assault,
and AWOL were preferred against appellant on 22 May 1996. On 18 July, both
original and additional charges were referred to a general court-martial.
He was arraigned on 2 August 1996.



(Emphasis added.)
PFC Guinard was the principal government witness
in this case, and he testified to the facts surrounding his assault and
the theft of his car. The Governments last witness on the merits was Mr.
McGunagle, a former military law enforcement agent. He was called to testify
to appellants post-invocation question concerning his probable jail time
for auto theft. He testified as follows:



Q: Okay, could you explain--at some point
did you interview the accused?
A: Ah--yes.
Q: Did he make any statements to you?
A: Subsequent to his invoking his rights,
he made ----
DC: Sir, objection at this time. We need a
39(a). [*]
MJ: Sustained.
MJ: Okay, members, were . . . going to temporarily
excuse you at this point for a period of approximately five to ten minutes.
We will--hopefully well reconvene at that point. If were going to have
problems doing that I will--Ill notify you shortly.
MJ: Were in recess.



(Emphasis added.)
A hearing on this matter then ensued outside
the presence of the members. There it was said:



DC: Sir, at this time the defense calls for
a mistrial.
MJ: Okay.
TC: Sir, I believe that I attempted to tap
dance all the way around that and did not---
DC: No even---
MJ: Just a second, counsel.
DC: Yes sir; Im sorry. Thank you, Your Honor.
TC: ---and did not request that--anywhere near
that response. I just wanted what the statement was.
MJ: Okay--
TC: And I believe a curative instruction would
be appropriate.



The military judge considered extensive argument
from the parties on whether a mistrial should be granted. He then took
the defense motion under advisement until the next morning. The military
judge reopened the Article 39(a) session and questioned the parties about
appropriate remedies, other than granting a mistrial. After again strenuously
arguing for a mistrial, defense counsel said:



Sir, the defense feels that the only appropriate
remedy is a mistrial because of that devastating blow, because of this
devastating violation of Private Sidwells rights. At the minimum there
should be a curative instruction and the Government would be prohibited
from presenting any further evidence from this witness and they should
be instructed to exclude any statements presented by this witness and Agent
McGunagle should never be seen in this courtroom again.



Ultimately, the military judge accepted the defenses
alternative proposal; ordered Agent McGunagles testimony stricken from
the record; and prevented him from further testifying in this case. He
also gave the following limiting instruction:



MJ: Members, before we broke you heard a
Special Agent, I believe his last name is pronounced McGunagle testify
that the accused exercised his constitutional rights at some point on the
21st of May. This testimony by Special Agent McGunagle is highly
improper and violated the accuseds constitutional rights in fact. Under
our system of law every citizen has their constitutional rights. Each of
us enjoys these rights. Each of you, myself, the counsel, and Private Sidwell
have constitutional rights that must be honored. All Americans and all
Soldiers when suspected of crimes and advised of their rights have at anytime
an absolute, legal, and moral right to exercise their constitutional privileges.
That the accused did so in this case must in no way be held against him
nor may you make any inference from the fact that he may have done so or
may not have done so. You must disregard in its entirety any testimony
given in this case by Special Agent McGunagle, including that testimony
that the accused may have terminated the interview.
The only thing that matters in this case is
that the accused always has had and remains and has [sic] a constitutional
right to exercise his legal prerogative and no adverse result may obtain
from his exercise of those constitutional rights. You may not infer guilt
or you may not infer any other fact from the fact that he has exercised
his constitutional rights. And that is my instruction to you. Are you all
able to follow that instruction? If so, simply raise your hand.
MBRS: [Positive response.]



The Government then rested, and the members never
heard the agents testimony on the substance of appellants spontaneous
question about his probable punishment for the auto theft charge. The military
judge later gave a general instruction on invocation of rights by a non-testifying
defendant as part of his findings instructions. Appellant was found guilty
of aggravated assault of PFC Guinard but not guilty of the robbery and
theft of his car.
___ ___ ___
Appellate defense counsel asks this Court to
set aside all the findings of guilty in this case on the basis of a single
comment made by a prosecution witness that appellant invoked his rights
after he surrendered himself to the military authorities. He contends that
trial counsel erroneously adduced this testimony in violation of the Constitution
and that the Government was required to show such error was harmless beyond
a reasonable doubt. He finally concludes that the curative instruction
cited by the Government was not sufficient to prevent prejudice in appellants
case because "the ends of justice required the military judge to grant
a mistrial." Final Brief at 5.
We recently entertained a similar question
in United States v. Riley, supra, concerning impermissible
comments on an accuseds exercise of his rights under Article 31, UCMJ,
10 USC n § 831. There, Judge Effron, writing for this Court, conducted
a prejudice analysis based, in part, upon the effect of the error on the
other prosecution and defense evidence presented in the case. 47 MJ 279-80;
see
generally United States v. Gonzalez, 921 F.2d 1530, 1549
(11th Cir. 1991). In an earlier case, involving improper reference
to an accuseds invocation of his constitutional rights to silence and
counsel, this Court focused primarily on the nature of the comment and
the curative instruction given to the members in determining whether such
error was harmless beyond a reasonable doubt. See Garrett,
24 MJ at 418.
Here, the military judge found, and the parties
to this appeal agree, that constitutional error occurred. We accept this
conclusion. We must now determine what prejudice, if any, resulted from
this error. In light of our case law, we conclude that all of the circumstances
noted above should be considered in determining whether such error was
harmless beyond a reasonable doubt. Id.; see also
United States v. Mobley, 34 MJ 527, 531 (AFCMR 1991).
Turning first to the improper rights-invocation
evidence, we conclude that, viewed in its entirety, it did not have great
potential to prejudice appellant. It was an isolated reference to a singular
invocation of rights by appellant. See Garrett, supra
at 416-17 (one reference to a single invocation); cf. Riley,
supra
at 278 (reference to three invocations of rights by accused). It was extremely
brief, providing no details as to the rights invoked or the offense or
offenses for which these rights were invoked. Id. In addition, the
trial judge immediately called an Article 39(a) session to consider its
admissibility, and when court reconvened the next day, he promptly instructed
the members to disregard it. Finally, this evidence was not affirmatively
exploited by trial counsel to buttress his case against appellant on any
of the charged offenses. See generally Hill v. Turpin,
135 F.3d 1411, 1417-18 (11th Cir. 1998) (collecting cases considering
the effect of prosecutors failure to exploit the rights-invocation evidence
in a harmless error analysis).
Turning next to the curative instruction given
by the judge, it is similar to the one approved in Garrett, supra
at 417. He unequivocally instructed the members to disregard this witness
testimony on this matter for all purposes. Moreover, he voir dired
the members on their understanding of his instruction and gave a more general
rights-invocation instruction at the close of this case. Id. at
418. In these circumstances, we can safely presume that the members did
what the military judge told them to do.
We also must consider the probable impact of
this inadmissible evidence on the members deliberations. See United
States v. Riley, supra. Although circumstantial in nature, the
Governments case was overwhelming and rested largely on the uncontradicted
testimony of appellants guard, PFC Guinard. Appellants sole defense was
an attack on the motives and military character of Guinard and the physical
improbability of his version of the events. The inadmissible invocation
testimony had no direct bearing on these questions concerning Guinards
truth-telling. Moreover, appellant did not testify, and therefore, he could
not be impeached on this basis. In our view, the impact of the evidence
in this case, even if considered by the members, would have been marginal.
See
Gonzales, 921 F.2d at 1550 (error harmless where evidence showing
guilt is otherwise strong); cf. United States v. Riley,
supra;
Turpin, 135 F.3d at 1418 (error not harmless where rights invocation
evidence used to impeach plausible story offered by defendant).
Finally, the military judge accepted defense
counsels reluctant proposal (only if mistrial not declared) to continue
this trial under certain conditions. As an alternative to mistrial, counsel
proposed that the offending testimony be struck, curative instructions
be given, and that the government agent not be allowed to testify. This
last condition, opposed by the Government, prevented Agent McGunagle from
testifying to appellant's subsequent spontaneous statement asking "how
much time should I expect to get for a stolen car." This testimony would
not only have been admissible (Oregon v. Bradshaw, 462 U.S. 1039
(1983); United States v. Rodriguez-Lopez, 63 F.3d 892, 893 (9th
Cir. 1995)) but it would have constituted an implied admission by appellant
to the charged offenses of larceny and robbery of his guards automobile.
In view of his subsequent acquittal of these offenses, any prejudice in
this case is illusory. See United States v. Raya, 45 MJ 251,
254 (1996).
The decision of the United States Army Court
of Criminal Appeals is affirmed.
FOOTNOTE:
* Art. 39(a), UCMJ, 10
USC § 839(a).

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