

   
   
   
   
   U.S. v. Clark



IN THE CASE OF
UNITED STATES, Appellee
v.
Shawn C. CLARK, Airman First Class
U.S. Air Force, Appellant
 
No. 99-0545
Crim. App. No. S29602
 
United States Court of Appeals for the Armed
Forces
Argued December 16, 1999
Decided August 16, 2000
EFFRON, J., delivered the opinion of the
Court, in which SULLIVAN and GIERKE, JJ., joined. CRAWFORD, C.J., and EVERETT,
S.J., each filed an opinion concurring in the result.
Counsel
For Appellant: Major Marc A. Jones (argued);
Colonel
Jeanne M. Reuth and Major Stephen P. Kelly (on brief);
Colonel
Theodore J. Fink and Lieutenant Colonel James R. Wise.
For Appellee: Captain Mitchel Neurock,
USAFR (argued); Colonel Anthony P. Dattilo and Lieutenant Colonel
Ronald A. Rodgers (on brief).
Military Judge: J. Jeremiah Mahoney
 
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.



Judge EFFRON delivered the opinion of the Court.
A special court-martial composed of a military
judge sitting alone convicted appellant, pursuant to his pleas, of 1 specification
each of making false official statements and of making a false claim against
the United States, violations of Articles 107 and 132, Uniform Code of
Military Justice, 10 USC §§ 907 and 932, respectively. Appellant
was sentenced to a bad-conduct discharge, confinement for 2 months, and
reduction to pay grade E-1. In accordance with a pretrial agreement, the
convening authority only approved so much of the sentence as called for
a bad-conduct discharge, 43 days of confinement, and reduction to pay grade
E-1. The Court of Criminal Appeals affirmed the findings and sentence in
an unpublished memorandum decision.
On appellants petition for review of his case,
we specified the following issues:







I




WHETHER THE STIPULATION OF FACT (PROS. EX. 1)
THAT WAS ADMITTED AS EVIDENCE DURING APPELLANTS PROVIDENCE INQUIRY VIOLATED
MIL.R.EVID. 707 AND UNITED STATES V. SCHEFFER, 118 S.CT. 1261 (1998),
BECAUSE IT STATED THAT APPELLANT AGREED TO TAKE A POLYGRAPH TEST AND THE
TEST RESULTS REVEALED DECEPTION ON HIS PART.
 




II




WHETHER APPELLANTS PRETRIAL AGREEMENT IS ILLEGAL
OR VOID BECAUSE IT CONTAINED A STIPULATION TO USE POLYGRAPH EVIDENCE AT
APPELLANTS COURT-MARTIAL IN VIOLATION OF MIL.R.EVID. 707 AND UNITED
STATES V. SCHEFFER, 118 S.CT. 1261 (1998).


We affirm for the reasons set forth below.

I. THE REFERENCE TO POLYGRAPH EVIDENCE
A. Factual Setting
Appellant discovered his stereo speakers were
missing in November 1997, on the day his household goods were being packed
for shipment. Appellant did not attribute the theft to the movers, but
assumed that someone had stolen the speakers prior to the move. Rather
than reporting the theft, appellant filed a claim on April 22, 1998, for
loss of personal property during the move, listing the speakers as missing
from his shipment.
In May 1998, appellant was interviewed twice
by base security personnel about his claim. Each time, he stated that the
speakers were missing from his shipment. Appellant agreed to take a polygraph
test. When confronted with the polygraph results, he admitted to filing
a false claim and lying to the investigator.
Appellant entered into a pretrial agreement
and pled guilty to making a false claim and making false official statements.
Appellant was required to agree to "reasonable stipulations concerning
the facts and circumstances" of his case.
During the providence inquiry, the military
judge reviewed the elements of the offenses, questioned appellant, and
received appellants description of the events at issue and his admission
of guilt. After appellant completed his responses to the providence inquiry,
the military judge briefly examined the stipulation of fact, which noted
that appellant had agreed to take a polygraph test and that the "test results
revealed deception." He admitted the stipulation into evidence and entered
findings of guilty. Appellant made no objections during the providence
inquiry.

B. The Legal Setting
Evidence that otherwise would be inadmissible
under the Military Rules of Evidence may sometimes be admitted at trial
through a stipulation, if the parties expressly agree, if there is no overreaching
on the part of the Government in obtaining the agreement, and if the military
judge finds no reason to reject the stipulation "in the interest of justice."
United
States v. Glazier, 26 MJ 268, 270 (CMA 1988). Mil.R.Evid. 707, Manual
for Courts-Martial, United States (1998 ed.), creates an express prohibition
on use of polygraph evidence in courts-martial. Subsection (a) of the rule
provides:


Notwithstanding any other provision of law,
the results of a polygraph examination, the opinion of a polygraph examiner,
or any reference to an offer to take, failure to take, or taking of a polygraph
examination, shall not be admitted into evidence.


The Analysis indicates that the rule was adopted
for several reasons, including a concern that the "reliability of polygraph
evidence" had not been established and its use in trials could affect "the
integrity of the judicial system." According to the Analysis, Mil.R.Evid.
707 "adopts a bright-line rule that polygraph evidence is not admissible
by any party to a court-martial even if stipulated to by the parties."
Manual, supra at A22-49.
The Supreme Court upheld the constitutionality
of the per se exclusion of polygraph evidence under Mil.R.Evid.
707 when the rule was challenged as an abridgement of an accuseds right
to present a defense. United States v. Scheffer, 523 U.S. 303, 118
S.Ct. 1261, 140 L.Ed.2d 413 (1998). In reaching its decision, the Court
held that "[t]he approach taken by the President in adopting Rule 707 
excluding polygraph evidence in all military trials  is a rational and
proportional means of advancing the legitimate interest in barring unreliable
evidence." Id. at 312, 118 S.Ct. at 1266.

C. Discussion
A stipulation of fact, which noted that appellant
agreed to take a polygraph test and that he failed the test, was admitted
into evidence against appellant during the providence inquiry following
his pleas of guilty. Appellant made no objections at his court-martial
and raised no issues on appeal. We granted review to determine whether
this stipulation and the pretrial agreement, to the extent it required
the stipulation, violated the ban on polygraph evidence announced in Mil.R.Evid.
707 and upheld in United States v. Scheffer, supra.
In general, error may not be based upon admission
of evidence unless there is a timely objection on the record. Mil.R.Evid.
103(a)(1). However, an appellate court may take notice of plain error even
though not brought to the attention of the military judge, if the appellant
demonstrates that there was an "error," that the error was "plain" ("clear"
or "obvious"), and that the error "materially prejudice[d] the substantial
rights of" the appellant. United States v. Powell, 49 MJ 460, 463-65
(1998); see Mil.R.Evid. 103(d); Art. 59(a), UCMJ, 10 USC §
859(a).
Appellant has met his burden of proving the
first two prongs of the plain-error test. Under Mil.R.Evid. 707 and United
States v. Scheffer, supra, no evidence relating to polygraph
testing may be admitted in a court-martial, even via a stipulation of fact.
The military judge committed a plain and obvious error by admitting the
stipulation into evidence during the providence inquiry. As to the final
prong of the test, appellant has not persuaded this Court that the error
materially prejudiced his substantial rights.
Appellant argues that the military judge must
have considered the polygraph evidence when making his findings and adjudging
a sentence because he failed to exclude the impermissible evidence. Review
of the record reveals that the providence inquiry was substantially complete
before the military judge admitted the stipulation of fact into evidence.
The military judge advised appellant of his rights, explained the elements
of the offenses with which he was charged, questioned appellant, and received
his version of the events and a complete admission of guilt before considering
the stipulation. When trial counsel offered the stipulation at the start
of the providence inquiry, the judge refused it, stating: "I like to look
at that only after Ive completed the inquiry, so I dont get confused
by the lawyers version of the events." There is no evidence that the military
judge found it necessary to rely upon the polygraph evidence in order to
accept appellants pleas as provident. We hold that appellant suffered
no prejudice as a result of the erroneous admission of the polygraph evidence
via the stipulation.
Senior Judge Everetts separate opinion raises
the question whether, in some future case, introduction of evidence concerning
a polygraph examination would be necessary to avoid violating a constitutional
or statutory right of the accused, which he illustrates through a scenario
based upon Cooke v. Orser, 12 MJ 335 (CMA 1982). Our decision in
this case is based upon the text of the Rule and the Supreme Courts interpretation
of the Rule in United States v. Scheffer, supra. In Scheffer,
the Supreme Court noted "widespread uncertainty" about the reliability
of polygraphy and concluded that an accused does not have a constitutional
right under the Sixth Amendment to present polygraph evidence for exculpatory
purposes at trial. 523 U.S. at 312, 317. The present case, like Scheffer,
does not present the issue of whether Mil.R.Evid. 707s "bright line" ban
on polygraph evidence violates any other constitutional or statutory right
of an accused.

II. THE PRETRIAL AGREEMENT
In light of our ruling on the first specified
issue, we need not address Issue II, which asks whether appellants pretrial
agreement is illegal or void because it required a stipulation to use polygraph
evidence at appellants court-martial. We do note, however, that the pretrial
agreement did not specifically require the stipulation to include a reference
to the polygraph evidence, but merely called for "reasonable stipulations
concerning the facts and circumstances" of appellants case. Insofar as
that phrase could be interpreted to require the polygraph evidence, the
appropriate remedy would be to not enforce the impermissible terms and
to strike the reference to the polygraph from the stipulation. See
RCM 705(c)(1)(B), Manual, supra; United States v. McLaughlin,
50 MJ 217, 218-19 (1999). For the reasons noted above, striking those references
does not affect the providence of the plea.

III. CONCLUSION
The record makes clear that the military judge
did not condition acceptance of appellants guilty pleas on the mention
of the polygraph evidence in the stipulation of fact. Likewise the pretrial
agreement was not interpreted to require the polygraph evidence. The providence
inquiry was substantially complete, and the military judge had already
heard appellants admission of guilt before the polygraph evidence was
even introduced at trial. In that context, we find that the error in admission
of the portions of the stipulation dealing with polygraph evidence was
not prejudicial. See Art. 59(a).

IV. DECISION
The decision of the United States Air Force
Court of Criminal Appeals is affirmed.


CRAWFORD, Chief Judge (concurring in the result):
Mil.R.Evid. 707, Manual for Courts-Martial,
United States (1998 ed.), like other rules of evidence, may be waived.
It is similar to Fed.R.Evid. 410. United States v. Mezzanatto, 513
U.S. 196 (1995). When the Ninth Circuit held that Fed.R.Evid. 410 could
not be waived, the Supreme Court stated:


The Ninth Circuit's analysis is directly
contrary to the approach we have taken in
the context of a broad array of constitutional
and statutory provisions. Rather than deeming
waiver presumptively unavailable absent some
sort of express enabling clause, we instead
have adhered to the opposite presumption....
A criminal defendant may knowingly and voluntarily
waive many of the most fundamental
protections afforded by the Constitution....
Likewise, absent some affirmative indication
of Congress' intent to preclude waiver, we
have presumed that statutory provisions are
subject to waiver by voluntary agreement of
the parties.


Id. at 200-01 (citations omitted). That
rationale applies here.
Additionally, polygraph evidence may be admissible
under the invited-error, curative-admissibility, or opening-the-door doctrines.


EVERETT, Senior Judge (concurring in the result):
I concur in the result. If error occurred at
trial  as Judge Effron concludes it did  clearly it could not have prejudiced
appellant.
I have serious doubts, however, that error
was committed. Admittedly, Mil.R.Evid. 707(a) imposes a broad prohibition
on admission into evidence of polygraph results. This prohibition, which
goes beyond the limitations on admissibility of such evidence in the federal
district courts, presumably is based on a conclusion by the President that
in this instance it is not "practicable" to "apply the principles of law
and the rules of evidence generally recognized in the trial of criminal
cases in the United States district courts." Art. 36(a), UCMJ, 10 USC §
836(a). How the President and his advisers reached that conclusion is unclear
to me; and after reading the various opinions in United States v. Scheffer,
523 U.S. 303 (1998), I infer that for five of the nine Justices, the basis
for that conclusion also is unclear. Nevertheless, by an 8-to-1 vote, the
Supreme Court upheld Rule 707s bar to admission in evidence of the results
of a polygraph test; and so we are bound by the Rule.
Some care is required, however, in the interpretation
and application of Mil.R.Evid. 707(a). For example, the Analysis of the
Rule  which Judge Effron quotes  states that "polygraph evidence is not
admissible by any party to a court-martial even if stipulated to by the
parties." _____ MJ at (5). This conclusion as to the lack of effect
of a stipulation by the parties does not seem to rest on the language of
Mil.R.Evid. 707, which makes no explicit reference to stipulations. Furthermore,
to interpret Mil.R.Evid. 707 in this manner conflicts with the principle
implicit in Article 36(a) that, so far as "practicable," evidence admissible
in criminal trials in federal district courts shall also be admissible
in trials by courts-martial. Therefore, it is significant that the Supreme
Court recently held that a defendant may validly waive the express provision
in Fed.R.Crim.P. 11(e)(6) prohibiting use against a defendant in any criminal
or civil proceeding of statements made by him in discussing a potential
pretrial agreement. United States v. Mezzanatto, 513 U.S. 196 (1995).
Similarly, in United States v. Piccinonna, 885 F.2d 1529,
1536 (1989), the Court of Appeals for the Eleventh Circuit sitting enbanc
concluded that polygraph testimony would be admissible when the "parties
stipulate in advance as to the circumstances of the test and as to the
scope of its admissibility."1
In light of these precedents this Court should not accept the sweeping
interpretation of Mil.R.Evid. 707 which Judge Effron seems to adopt.
Finally, it deserves note that to apply Mil.R.Evid.
707(a) with complete literalism would yield some unanticipated results.
For example, the accused in Cooke v. Orser, 12 MJ 335 (CMA 1982),
received the benefit of a bargain he made with Air Force representatives
whereunder he would not be prosecuted if information he provided was confirmed
by polygraph tests; but under the language of Mil.R.Evid. 707  if interpreted
literally  a court-martial would not have been able to consider evidence
that an agreement had been made for Lieutenant Cooke to take a polygraph
test and for the parties to be bound by the results thereof.
In view of the extensive use of polygraph tests
in connection with interrogations, other situations can readily be imagined
in which taking a polygraph test and discussing the results with a suspect
may be logically quite relevant in determining whether the suspects subsequent
statement to investigators was voluntary. I doubt that the President intended
to exclude all reference to polygraph testing under these circumstances.
Likewise, I question whether Mil.R.Evid. 707 was intended to apply in sentencing
and to preclude the prosecution from showing on cross-examination or by
rebuttal evidence that an accused who sought a lenient sentence because
he had "repented" and had voluntarily confessed, made a truthful statement
only after a polygraph test indicated deception on his part.2
In short, by finding that an error was committed
at trial in this case, the Court may be setting the scene for unintended
and undesirable consequences in future cases.
FOOTNOTES:
1 Moreover,
the majority (8-4) was willing to allow polygraph evidence under some circumstances
even without a stipulation.
2
This hypothetical bears some resemblance to the case at bar.


Home
Page  |  Opinions
& Digest  |  Daily
Journal  |  Scheduled
Hearings
