                              2D CORRECTED COPY

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          SCHENCK, ZOLPER, and WALBURN
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                   Specialist CHRISTOPHER* J. MATTHEWS
                          United States Army, Appellant

                                   ARMY 20030404

        Headquarters, 25th Infantry Division (Light) and U.S. Army, Hawaii
                    Theodore E. Dixon, Military Judge (Trial)
              Richard J. Anderson, Military Judge (DuBay Hearing)
                Colonel Gregory O. Block, Staff Judge Advocate

For Appellant: Captain Danyele M. Jordan, JA; Mr. Earle** A. Partington, Esq. (on
brief).

For Appellee: Colonel John W. Miller, JA; Lieutenant Colonel Michele B. Shields,
JA; Major Paul T. Cygnarowicz, JA; Captain Mason S. Weiss, JA (on brief).

                                      21 May 2008
                              ------------------------------------
                                OPINION OF THE COURT
                             -------------------------------------
ZOLPER, Senior Judge:

       On 11 April 2003, a military judge sitting as a general court-martial convicted
appellant, pursuant to his pleas, of wrongful use of cocaine (two specifications) in
violation of Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 912a
[hereinafter UCMJ] and, contrary to his pleas, of assault upon a noncommissioned
officer in which grievous bodily harm was intentionally inflicted in violation of
Article 128, UCMJ. The convening authority approved the adjudged sentence to a
bad-conduct discharge, confinement for eleven months, forfeiture of all pay and
allowances, and reduction to Private E1. This case is before the court for review
under Article 66, UCMJ.

      Appellate defense counsel assert, inter alia, the military judge erred by
allowing trial counsel to comment upon the defense witness Private (PVT) James



*Corrected
**Corrected
MATTHEWS – ARMY 20030404

Gibson’s 1 invocation of his Fifth Amendment privilege against self-incrimination,
and thereafter, improperly drawing an adverse inference based on those comments.
We hold that the military judge erred by applying Military Rule of Evidence
[hereinafter Mil. R. Evid.] 512 (applicable to privileged communications) and agree
that he improperly drew an adverse inference from the witness’s invocation of his
Fifth Amendment protection. The military judge should have applied Mil. R. Evid.
301 (regarding protection against self-incrimination), and considered trial counsel’s
request to have the witness’s testimony stricken from the record. We find, however,
the evidence of guilt overwhelming and any error harmless beyond a reasonable
doubt.

                                      FACTS

       Appellant and his wife, Laurel Matthews, lived in on-post housing at
Schofield Barracks, Hawaii. Sergeant (SGT) Brian Freeman knew appellant and
Laurel from their previous assignments at Fort Stewart, Georgia. When SGT
Freeman reported to Schofield Barracks, he renewed the friendship and visited them
in their quarters several times. On the date of the charged offenses, SGT Freeman
came to the Matthews’ home to pick up his ex-girlfriend’s daughter (Ashley), whom
Laurel was babysitting. Sergeant Freeman arrived with his friend, Specialist (SPC)
Jennifer McBurney, picked up Ashley, and went to the mall. When SGT Freeman
returned to the Matthews’ home later in the day, Laurel told him appellant wanted to
talk with him inside. Laurel stepped outside with Ashley while SPC McBurney
waited in appellant’s car.

       Upon entering the house, SGT Freeman noticed there were two other men in
the kitchen; both were wearing battle dress uniforms without name tags. Although
he did not know their identities at the time, they were [then] SSG James Gibson and
Private First Class (PFC) Pedro Lozada III. Appellant began questioning SGT
Freeman in the living room about whether SGT Freeman was facilitating Laurel’s
affair with another soldier. Appellant continued to question SGT Freeman, directed
SGT Freeman to get Laurel from outside, and then continued to question both of
them. Sergeant Freeman denied knowledge of an affair.

      Appellant then pulled out a handgun from under the couch in the living room
and inserted a loaded magazine. As SGT Freeman became frightened and turned to

1
  Private James Gibson was a staff sergeant (SSG) at the time the offenses were
committed. Following UCMJ action prior to appellant’s trial, he was reduced in
rank from staff sergeant to private.



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MATTHEWS – ARMY 20030404

run through the kitchen, SSG Gibson and PFC Lozada grabbed SGT Freeman and
pushed him back into the living room. Appellant then pistol whipped SGT Freeman
from behind, and SGT Freeman heard what he believed to be a gunshot. 2 Two of
appellant’s neighbors also heard a gunshot. Sitting in appellant’s car, SPC
McBurney viewed the assault through the front window of the house. While SGT
Freeman was on the floor with his head bleeding, appellant held the handgun to his
head. With PFC Lozada and SSG Gibson beside him, appellant continued to threaten
SGT Freeman and demanded he tell him what he knew of Laurel’s infidelities.
Hearing the sirens of approaching military police (MP), appellant told SGT Freeman
to hide in the bathroom. Sergeant Freeman did so for a few moments but fled the
house at the first opportunity. As SPC McBurney entered the house, she observed
SGT Freeman run out, and appellant mopping blood off the floor. She heard
appellant say he wished “it hadn’t happened.” Specialist McBurney then left the
house and reported the incident to the MPs as they arrived. When the MPs entered
the home, appellant told them there was nothing going on and that he and his wife
had a little argument.

                                               Trial

       During the contested portion of his trial, appellant called PVT James Gibson
as a witness. 3 Private Gibson testified favorably for appellant. During cross-
examination, trial counsel asked PVT Gibson a series of questions, which could have
elicited potentially inculpatory and self-incriminating responses. The questions
pertained to PVT Gibson’s previous misconduct were unrelated to the offenses
underlying appellant’s trial. 4 Private Gibson refused to answer these questions and

2
  Appellant was acquitted of negligently discharging a firearm and wrongfully
communicating a threat to SGT Freeman, in violation of Article 134, UCMJ.
3
  Private Gibson testified under a limited grant of immunity for offenses resulting
from his participation in the events for which appellant was charged. In accordance
with Rule for Courts-Martial [hereinafter R.C.M.] 704, PVT Gibson was protected
from subsequent prosecution for any of his statements regarding his involvement in
the incident with the appellant; however, the military judge noted that, in this case, a
more encompassing grant of immunity might have helped avoid his subsequent need
to invoke his Fifth Amendment privilege against self-incrimination.
4
  Trial counsel’s questions during cross-examination revealed the following: (1) the
government accused PVT Gibson of falsifying an academic transcript and altering a
physical fitness scorecard to enhance his promotion packet, which he submitted to
the staff sergeant promotion board; (2) thereafter, charges were preferred against

                                                                   (continued . . .)
                                           3
MATTHEWS – ARMY 20030404

invoked his Fifth Amendment privilege against self-incrimination thirteen times by
stating, “I’ll take the Fifth Amendment.”

       Based upon PVT Gibson’s invocation, trial counsel requested to have him
excused and his testimony stricken from the record. Although trial counsel asserted
that she could not conduct a meaningful cross-examination of PVT Gibson, the
military judge summarily denied the request. Despite PVT Gibson’s repeated
invocation of his Fifth Amendment privilege—matched by as many objections from
civilian defense counsel—the military judge allowed trial counsel to continue with
her line of questioning.

       The military judge also permitted trial counsel to comment on PVT Gibson’s
invocation of his Fifth Amendment privilege against self-incrimination during her
rebuttal argument on findings. During rebuttal, the following colloquy ensued
between the military judge, trial counsel, and civilian defense counsel:

            TC: Referring back to Gibson. If you have to testify
            under a grant of immunity, and you still have to invoke
            your rights----

            CDC: Objection. I don’t believe the court may properly
            draw [an] inference [based] on Gibson’s invocation of his
            rights. I think it’s forbidden. Isn’t it under [Mil. R. Evid.]
            608?

            MJ: Not that I’m aware of, sir.

            CDC: I believe it’s certainly forbidden under the Fifth
            Amendment.

            MJ: If it was relating to the accused, you would be
            correct. As it relates to a witness, I know of no law that
            says that.

            CDC: I believe that is the law, Your Honor, but I admit, I
            cannot give you a citation at this time.



(. . . continued)
PVT Gibson; and (3) as a result, PVT Gibson submitted a request for discharge in
lieu of court-martial which the convening authority approved.


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MATTHEWS – ARMY 20030404

            MJ: You may proceed.

            TC: Thank you. If you have to testify under a grant of
            immunity and still invoke your Fifth Amendment rights,
            especially with regards for your character for truthfulness,
            you probably shouldn’t be believed. . . . The government
            still wonders why he had to invoke his right in the
            beginning.

Although civilian defense counsel objected to trial counsel’s comments, the military
judge subsequently ruled that such comments were permissible based on the
“interests of justice” exception to Mil. R. Evid. 512(a)(2).

      After the military judge announced his findings on the record, he made the
following additional comments:

            MJ: For purposes of any appellate review of this case for
            factual sufficiency, the court had the opportunity to
            evaluate the credibility of each witness and considered
            each witness’s ability to observe and accurately remember,
            sincerity, conduct in court, friendships, prejudices, and
            character for truthfulness. The court also considered the
            extent to which each witness was supported or contradicted
            by other evidence, the relationship each witness had with
            the other side, and how each witness might be affected by
            the verdict.

                  In weighing a discrepancy by a witness and between
            witnesses, the court considered whether it resulted from an
            innocent mistake or a deliberate lie.

                   After taking all these matters into account, the court
            then considered the probability of each witness’s
            testimony, and the inclination of each witness to tell the
            truth. Based on the foregoing, the court finds beyond a
            reasonable doubt that Private Lozada, Private Gibson, and
            Mrs. Matthews were untruthful in their testimony. The
            court further finds that these witnesses had every
            opportunity to, and did, collaborate to falsely testify in
            this case, motivated by obvious individual self-interest.

                   Conversely, using the same standard, the court
             found Specialist McBurney credible and her testimony

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MATTHEWS – ARMY 20030404

               truthful in all critical respects to the court’s finding,
               relating to Charge I and [its] Specification.

                                         DuBay 5 Hearing

       On 14 July 2006, this court ordered a DuBay hearing. On 8 September 2006,
the DuBay judge published extensive findings of fact and conclusions of law. In
pertinent part, we summarize as follows:

        (1) The military judge did not abuse his discretion by allowing the assistant
trial counsel to comment on PVT Gibson’s invocation of the privilege against self-
incrimination in her rebuttal argument on findings.

      (2) The military judge properly applied the “best interests of justice”
exception to MRE 512(a)(2).

       (3) The military judge did draw an adverse inference, that PVT Gibson was
less credible, from PVT Gibson’s invocation.

      (4) The military judge made an ex parte off-the-record comment to civilian
defense counsel and military defense counsel that he had considered PVT Gibson’s
invocation of the privilege in determining PVT Gibson’s credibility. 6

      (5) The military judge, however, gave no weight to this inference,
concluding, before he considered the inference, that PVT Gibson was not credible.

      (6) The trial defense counsel did not raise any assertion of legal error in
R.C.M. 1105 matters because trial defense counsel determined that there was no
prejudicial error.



5
    United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967).
6
 Members of the judiciary should remember the importance of remaining ever
vigilant in avoiding unnecessary ex parte communications. “An ex parte
communication which gives the appearance of granting undue advantage to one party
over the other cannot be condoned . . . indeed, we have cautioned that the
appearance of impropriety is to be avoided at all costs.” United States v. Alis, 47
M.J. 817, 824 (A.F. Ct. Crim. App. 1998); see also United States v. Quintanilla, 56
M.J. 37 (C.A.A.F. 2001) (finding ex parte communications prejudiced appellant).



                                              6
MATTHEWS – ARMY 20030404

      (7) The military judge committed no error and there was no prejudice to
appellant.

                                        LAW

                                 Standard of Review

       “We review de novo the question whether an error was harmless . . . . The
test for [C]onstitutional error is whether the error was harmless beyond a reasonable
doubt . . . . The test for nonconstitutional error is ‘whether the error itself had
substantial influence’ on the findings.” United States v. Walker, 57 M.J. 174, 178
(C.A.A.F. 2002). Typically, situations involving the application of Mil. R. Evid.
301 rise to a Constitutional magnitude. 7 Without making a determination regarding
the due process concerns in the present case, and out of an abundance of caution, we
will evaluate whether any error was harmless beyond a reasonable doubt. United
States v. Brewer, 61 M.J. 425, 431 (C.A.A.F. 2005).

                       Military Rules of Evidence 301 and 512

       Although both the military trial judge and the DuBay judge applied Mil. R.
Evid. 512, the proper rule regarding PVT Gibson’s invocation of his Fifth
Amendment privilege against self-incrimination while testifying is Mil. R. Evid. 301.
Long standing canons of statutory construction require that when a specific statute
exists on point, it is controlling. See Robertson v. Seattle Audobon Society, 503 U.S.
429, 440 (1992). In the present case, the specific, and therefore controlling, statute
is Mil. R. Evid. 301, even though Mil. R. Evid. 512 does provide some general
guidance regarding Constitutional privileges of witnesses. See Manual for Courts-
Martial, United States, Analysis of the Military Rules of Evidence app. 22 at A22-37
(2002 ed.). In light of this confusion, we will clarify the distinct roles of these two
evidentiary rules.

7
  See United States v. Moore, 36 M.J. 329, 336 (C.M.A. 1993); United States v.
Phaneuf, 10 M.J. 831 (A.C.M.R. 1981). It is important to note whose Constitutional
interests are potentially at issue when applying Mil. R. Evid. 301. When a nonparty
witness invokes his Fifth Amendment protections against self-incrimination, the
court is not concerned with protecting the Constitutional rights of the witness, but
rather the due process rights of the accused. Moore, 36 M.J. at 334. This is because
Mil. R. Evid. 301, when properly applied, may result in excluding testimony which
could be considered either integral to appellant’s fundamental right to present a
defense or, conversely, impact appellant’s right to confront witnesses against him.
See Phaneuf, 10 M.J. at 834 (citing Washington v. Texas, 388 U.S. 14, 19 (1967)).


                                          7
MATTHEWS – ARMY 20030404

       Military Rule of Evidence 301 applies when a defense or government witness
invokes his Fifth Amendment privilege against self-incrimination during the course
of his testimony. See Mil. R. Evid. 301. 8 Military Rule of Evidence 512 provides
guidance to the military judge and counsel when a witness refuses to testify
regarding privileged information. See Mil. R. Evid. 512.

                             Military Rule of Evidence 301

      Military Rule of Evidence 301(f) provides:

             (1) Generally. The fact that a witness has asserted the
             privilege against self-incrimination in refusing to answer a
             question cannot be considered as raising any inference
             unfavorable to either the accused or the government.

             (2) On cross-examination. If a witness asserts the
             privilege against self-incrimination on cross-examination,
             the military judge, upon motion, may strike the direct
             testimony of the witness in whole or in part, unless the
             matters to which the witness refuses to testify are purely
             collateral.

Purely collateral matters are those issues which tend to involve

             evidence of minimal importance (usually dealing with a
             rather distant fact solicited for impeachment purposes) . . . .
             The drafters caution, however, that “where the privilege
             reaches the core of the direct testimony or prevents a full
             inquiry into the credibility of the witness, . . . striking of
             the direct testimony would appear mandated.”

Moore, 36 M.J. at 335-336 (citations omitted); see also United States v. Richardson,
15 M.J. 41, 47 (C.M.A. 1983) (finding the military judge erred in striking the
testimony of a defense witness when the subject of cross-examination was purely
collateral, as it did not involve either issues germane to the accused’s trial or matters
of trustworthiness and credibility). “And as long as the subject matter of the cross-

8
  See also Phaneuf, 10 M.J. at 835. In Phaneuf, a defense witness invoked her Fifth
Amendment privilege against self-incrimination while testifying during sentencing.
The court determined striking her testimony prejudiced appellant; however, because
remand was impracticable, the court reassessed the sentence. Id.


                                           8
MATTHEWS – ARMY 20030404

examination is germane to the direct examination or relates to the witness’s
credibility, cross-examination may extend to areas of self-incrimination.”
Richardson, 15 M.J. at 44. Courts have consistently held credibility issues are not
collateral matters for either party, but rather key concerns of the truth seeking
process. 9

       Once the military judge has determined the subject matter is not purely
collateral, the rule permits him to strike the testimony of that witness, in whole or
part, after careful consideration of “what if any remedy is necessary to achieve
fairness and justice through the adversary system.” 10 Moore, 36 M.J. at 334; see



9
             Cross-examination is the principal means by which the
             believability of a witness and the truth of his testimony
             are tested . . . . [United States v. Nobles, 422 U.S. 225
             (C.M.A. 1975)] makes clear that, like an accused, the
             prosecution is entitled to have a criminal case decided on
             the basis of trustworthy evidence. Therefore, if cross-
             examination helps to assure the trustworthiness of a
             witness’s testimony, the [g]overnment should have the
             same opportunity to cross-examine defense witnesses that
             an accused enjoys with respect to prosecution witnesses.
             To allow an accused to offer evidence from witnesses
             whose veracity and powers of observation could not be
             tested adequately by cross-examination would grant him a
             privilege to mislead the trier of fact.

Richardson, 15 M.J. at 46 (internal citations omitted).
10
   If testimony of a witness is stricken, either in whole or in part, an accused’s due
process rights may be directly affected, making the decision one of Constitutional
dimension. Phaneuf, 10 M.J. at 834. However, an accused’s due process rights are
not unfettered. As our superior court reiterated in United States v. Hill, 18 M.J. 459,
462 (C.M.A. 1984) (quoting Nobles, 422 U.S. at 241), the “Sixth Amendment does
not confer the right to present testimony free from the legitimate demands of the
adversarial system; one cannot invoke the Sixth Amendment as a justification for
presenting what might have been a half-truth.” Therefore, merely because applying
Mil. R. Evid. 301 might result in a limitation on an accused’s due process rights it is
not necessarily an unconstitutional remedy. Id.; Richardson, 15 M.J. at 46. “From
the proposition that the [g]overnment and the defense should have equal access to
evidence, the Court proceeded to the conclusion that neither party should be allowed

                                                                    (continued . . .)
                                           9
MATTHEWS – ARMY 20030404

Nobles, 422 U.S. at 231 (“To ensure that justice is done, it is imperative to the
function of courts that compulsory process be available for the production of
evidence needed by either the prosecution or by the defense.”). A careful balance
must be struck. When such testimony is offered by the defense, and potentially
subject to complete exclusion under the rule, the Constitutional right of an accused
to present witnesses in his defense is challenged. Phaneuf, 10 M.J. at 834;
Moore, 36 M.J. at 336. Similarly, if the invocation is made by a government
witness, and the military judge determines that striking the testimony is not
warranted, such a decision implicates the accused’s Constitutional right to confront
witnesses against him. United States v. Rivas, 3 M.J. 282, 285 (C.M.A. 1977). As
the court cautioned in Moore, 36 M.J. at 336, the military judge must “approach a
ruling with some sensitivity” to ensure the outcome fortifies the integrity of the
judicial process.

                             Military Rule of Evidence 512

      Rule for Courts-Martial 512(a)(2) provides:

             (2) The claim of privilege by a person other than the
             accused whether in the present proceeding or upon a prior
             occasion normally is not a proper subject of comment by
             the military judge or counsel for any party. An adverse
             inference may not be drawn therefrom except when
             determined by the military judge to be required by the
             interests of justice.

The privileges relevant to the application of Mil. R. Evid. 512 include: the lawyer-
client privilege, communications to the clergy, the husband-wife privilege, and the
psychotherapist-patient privilege. See Mil. R. Evid. 501-512 (enumerating the
relevant privileges for protection under Mil. R. Evid. 512). Although the invocation
of any of the above enumerated privileges is not a proper subject for comment by any
party during argument or rebuttal, an adverse inference can be drawn, when found to
be in the “interests of justice.” Such a determination is made only after a careful
balancing of the competing interests and a finding that “there is a greater need to
protect the interests of . . . truth in criminal proceedings” than there is to protect the
sanctity of the privilege. United States v. Custis, 65 M.J. 366, 368 (C.A.A.F. 2007).



(. . . continued)
to offer evidence that was misleading or untrustworthy.” Richardson, 15 M.J. at 45
(discussing Nobles).


                                           10
MATTHEWS – ARMY 20030404

                                     DISCUSSION

       In appellant’s case, the military judge applied the wrong rule of evidence,
seeking guidance under the provisions of Mil. R. Evid. 512, rather than
Mil. R. Evid. 301. Consequently, he improperly conducted an “interests of justice”
analysis and determined it was permissible to draw an adverse inference from PVT
Gibson’s decision to invoke his Fifth Amendment privilege against self-
incrimination. Had the military judge properly applied Mil. R. Evid. 301, he would
have recognized there is no “interests of justice” exception to the absolute
prohibition against drawing any negative inferences from a witness’s decision to
invoke his Fifth Amendment protections. See Mil. R. Evid. 301(f)(1). The only
potential remedy available under the rules after a witness invokes his Fifth
Amendment privilege against self-incrimination is a determination of whether to
grant a request to strike some or all of that witness’s testimony. Regardless of
whether the testimony is eventually stricken, the military judge, or panel, may not
draw any adverse inference from the witness’s decision to invoke.

       In the present case, trial counsel asked PVT Gibson several questions directly
relating to offenses that reflected on his credibility and veracity as a witness,
patently not collateral matters. Specifically, he was asked about altering his results
on a physical fitness test and falsifying an academic transcript. Both these acts, if
true, could demonstrate PVT Gibson’s character for untruthfulness, a matter which
falls squarely within permissible, and even essential, grounds for cross-examination.
Private Gibson repeatedly invoked his Fifth Amendment privilege against self-
incrimination during this cross-examination. He did not, however, invoke any of the
privileges enumerated in the relevant portions of the Military Rules of Evidence and
protected pursuant to Mil. R. Evid. 512. The military judge should have applied Mil.
R. Evid. 301, the rule which is more specific and therefore controlling, when ruling
on trial counsel’s request to have PVT Gibson’s testimony stricken from the record.
United States v. Morlan, 24 C.M.R. 390, 392 (A.B.R. 1957).

       Additionally, trial counsel’s rebuttal argument specifically referenced
PVT Gibson’s invocation. Since Mil. R. Evid. 301 prohibits drawing any adverse
inference based upon the invocation of the witness’s Fifth Amendment privilege
against self-incrimination, it is fair to assume that it implicitly prohibits any party
from critically commenting on the witness’s invocation. Therefore, trial counsel’s
comment during rebuttal was also improper.

       In sum, the military judge erred when applying Mil. R. Evid. 512, rather than
the more specific and therefore controlling rule, Mil. R. Evid. 301. Consequently, he
erred when he permitted trial counsel to comment during rebuttal argument on PVT
Gibson’s invocation of his Fifth Amendment privilege against self-incrimination.
Lastly, the military judge erred when he ruled on defense counsel’s objection to the

                                           11
MATTHEWS – ARMY 20030404

military judge drawing an adverse inference from PVT Gibson’s invocation of his
Fifth Amendment privilege against self-incrimination. 11

                 HARMLESS BEYOND A REASONABLE DOUBT

                                  Standard of Review

       Having decided the military judge erred, we will now determine whether such
error was harmless beyond a reasonable doubt. See Chapman v. California,
386 M.J. 18 (1967). “[I]ssues involving possible [C]onstitutional error can be
resolved by assuming [Constitutional] error and concluding that the error is harmless
beyond a reasonable doubt.” United States v. Allison, 63 M.J. 365, 370
(C.A.A.F. 2007). Therefore, it is not required that we actually find that the error
identified was Constitutional error to apply Constitutional error analysis. Id.

                                Elements of the Offense

      Appellant was convicted of assault upon a noncommissioned officer in which
grievous bodily harm was intentionally inflicted, in violation of Article 128, UCMJ.
The elements of Article 128b(4)(b) are:

              i) that the accused assaulted a certain person;

              ii) that the grievous bodily hard was thereby inflicted
              upon such person;

              iii) that the grievous bodily harm was done with unlawful
              force or violence; and

              iv) that the accused, at the time, had the specific intent to
              inflict grievous bodily harm.

Manual for Courts-Martial, United States (2002 ed.), Part IV, para. 54b. In the
instant case, the government also had to prove that, at the time of the offense, the
victim was known by the accused to be a noncommissioned officer. Therefore, to
find the error harmless, it is necessary to determine that every element of this
offense was proven by properly considered evidence presented at trial. See
Richardson, 15 M.J. at 48-49.

11
 Military judge also erred when he summarily denied trial counsel’s request to have
PVT Gibson’s testimony stricken from the record.


                                           12
MATTHEWS – ARMY 20030404

                            Constitutional Error Analysis

        Following his deliberations, the military judge made several findings of fact
on the record concerning the evidence presented at trial. Specifically, with regard to
PVT Gibson, the military judge stated he “gave no weight to the [adverse] inference,
concluding before he considered the inference, that PVT Gibson was not credible.”
Additionally, the military judge made several findings regarding the other evidence
presented. He explained how he assessed each piece of evidence and each witness’s
testimony for importance, veracity, bias, impact, credibility, and contradiction.
Based upon this assessment, he stated he found “beyond a reasonable doubt that . . .
[the defense witnesses] were untruthful in their testimony” and that “[SPC]
McBurney [was] credible in her testimony and truthful in all critical respects to the
court’s findings, relating to Charge 1 and [its] Specification.” Furthermore, the
military judge was able to consider the direct testimony of SPC Freeman and the
neighbors, which corroborated the testimony of SPC McBurney. In effect, the
military judge conducted his own version of a Van Arsdall analysis at the trial
level. 12

       Following an order by this court, a DuBay hearing investigated the
circumstances surrounding appellant’s assertion of error. At this hearing, the
military judge testified concerning his analysis of PVT Gibson’s credibility as a
witness. Again, the military judge explained that regardless of PVT Gibson’s
decision to invoke his Fifth Amendment privilege against self-incrimination, he
found him to be an untruthful witness, with both motive and opportunity to lie
regarding the incident. 13 While the military judge acknowledged he drew an adverse

12
   In United States v. Othuru, 65 M.J. 375, 378 (C.A.A.F. 2007), our superior court
reminded us of the importance of assessing all the “host of factors” identified by the
Supreme Court in Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986), before
concluding that a Constitutional error is harmless beyond a reasonable doubt, to
include: “the importance of the witness’s testimony in the prosecution’s case,
whether the testimony was cumulative, the presence or absence of corroborating or
contradicting testimony of the witness on material points, the extent of the cross-
examination otherwise permitted, and, of course, the overall strength of the
prosecution’s case.”
13
   Appellate defense counsel, in supplemental pleadings, assert the military judge
violated the deliberative process privilege, as explained in Mil. R. Evid. 509 and
Mil. R. Evid. 606(b), by testifying about his thought process in ruling on the Mil. R.
Evid. 512 objection. Military Rules of Evidence 509 and 606(b) describe the
prohibitions which exist to keep jury members from disclosing their deliberative

                                                                  (continued . . .)
                                          13
MATTHEWS – ARMY 20030404

inference, he reiterated that he gave no weight to this inference in his deliberations.
The DuBay judge also found the military judge gave the adverse inference “no
weight” and held there was “no prejudice to the appellant” from the improperly
drawn inference.

       Again, without determining whether this error rose to the level of
Constitutional error, we will apply Constitutional error analysis to ensure heightened
protections for appellant. “To determine whether the [C]onstitutional error was
harmless beyond a reasonable doubt we consider the whole record.” Van Arsdall,
475 U.S. at 681. Similar to the analysis conducted by the military judge and the
DuBay judge, we must determine the impact of the improperly drawn inference on
the findings, balanced against the “host of factors” available upon review for
assessing the quality of the other evidence presented at trial. Id.

       A thorough review of the record reveals the adverse inference had little or no
impact on the findings of guilt, as there was ample properly considered evidence
demonstrating appellant’s guilt. Initially, and perhaps most importantly, the military
judge heard the direct testimony of the victim, SGT Freeman, who described in detail
the events of the assault. Next, the military judge heard the direct testimony of SPC
McBurney, an eyewitness who observed most of the events through a window in the
appellant’s house. Additionally, the government presented two of appellant’s
neighbors, who corroborated key aspects of the eyewitness accounts. First, SGT
Joshua Blickhahn testified he heard a gunshot-like sound just moments before seeing
multiple people and cars leaving the appellant’s residence. This corroborated the
timeline of events. Second, PFC Gordon Loftin testified appellant told him before
the incident that he had “found out [his] wife was cheating on [him], and the guy is
coming over, so if you hear a lot of noise, don’t worry about it” and that appellant
was “going to take care of him.” These statements were properly admitted
admissions by the appellant.


(. . . continued)
process, through testimony or affidavit, not judges. Appellant provides no case law
to support the proposition that these evidentiary rules apply to a military judge’s
deliberative processes. In fact, in United States v. McNutt, 62 M.J. 16, 20 (C.A.A.F.
2005), our superior court held Mil. R. Evid. 606(b) “applies to court members only,
and thus, does not apply to protect the statement[s] of the military judge. . . .”
Additionally, the court specifically addressed the present situation, recognizing
“there [will be] certain extraordinary situations in which a judge may be called upon
to explain his verdict or rulings in a subsequent proceeding.” Id. at 21. In the
instant case, such a circumstance arose and, acting under this contingency, we
ordered the DuBay hearing.


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       In addition to the evidence presented by the government, the military judge
considered other evidence presented by the defense. In particular, the military judge
heard testimony from appellant’s wife, and appellant’s friend and alleged
accomplice, PVT Lozada, both of whom the military judge found to be untruthful
witnesses with clear motive and opportunity to fabricate. Based upon the properly
considered testimony presented at trial by both parties, a finding of guilty was
clearly supported by the overwhelming weight of the evidence.

       “In the context of a particular case, certain [C]onstitutional errors, no less
than other errors, may have been ‘harmless’ in terms of their effect on the
factfinding process at trial.” Othuru, 65 M.J. at 377 (quoting Van Arsdall, 475 U.S.
at 681). In such cases, “[e]ven [C]onstituional error may not require reversal if
beyond a reasonable doubt it was harmless to the accused.” Richardson, 15 M.J. at
48. While considering all errors at the trial level, our application of the Van Arsdall
criteria, similar to the assessments performed by the military trial and DuBay judges,
convinces us that any errors resulting from the misapplication of Mil. R. Evid. 512
and the adverse inference drawn by the military judge from PVT Gibson’s Fifth
Amendment invocation were harmless beyond a reasonable doubt.

                                     CONCLUSION

      We have considered appellant’s remaining assignments of error, and those
matters personally raised by appellant pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982), and find them to be without merit. Accordingly, the
findings and sentence are affirmed.


         Senior Judge SCHENCK ∗ and Judge WALBURN concur.
                                          FOR THE COURT:
                                          FOR THE COURT:



                                          MALCOLM H. SQUIRES, JR.
                                          Clerk of Court




∗
    Senior Judge Schenck took final action on this case prior to her retirement.


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