

   
   
   
   U.S. v. Johnson



United States, Appellee
v.
Ricky M. JOHNSON, Specialist
U.S. Army, Appellant
 
No. 99-0092
Crim. App. No. 9601024
 
United States Court of Appeals for the Armed
Forces
Argued March 2, 2000
Decided August 31, 2000
CRAWFORD, C.J., delivered the opinion of
the court, in which EFFRON, J. and COX, S.J., joined. SULLIVAN and GIERKE,
JJ., each filed an opinion concurring in the result.

Counsel
For Appellant: Major Jonathan F. Potter
(argued); Colonel Adele H. Odegard, Major Scott R. Morris,
Major Kirsten V.C. Brunson, and Captain Donald P. Chisholm
(on brief).
For Appellee: Captain Kelly D. Haywood
(argued); Colonel
Russell S. Estey and Lieutenant
Colonel Eugene R. Milhizer
(on brief).
Military Judges: Frederick Kennedy & W.
Gary Jewell
 

THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.

Chief Judge CRAWFORD delivered the opinion
of the Court.
Contrary to his pleas, appellant was convicted
by officer and enlisted members of 2 specifications of battery - one by
biting and the other by striking a child -- and 3 specifications of aggravated
assault upon a child by intentionally inflicting grievous bodily harm,
in violation of Article 128, Uniform Code of Military Justice, 10 USC §
928. Appellant was sentenced to a bad-conduct discharge, 6 years confinement,
total forfeitures, and reduction to the lowest enlisted grade.
Upon initial review, the Court of Criminal
Appeals affirmed the findings of guilty and the sentence without opinion.
On remand by this Court, 52 MJ 374 (1999), the Court of Criminal Appeals
determined that appellant was entitled to relief under United States
v. Gorski, 47 MJ 370 (1997). This Court had noted in the remand order
that it was remanding the case "without prejudice to raising other issues
in a petition after remand." On December 9, 1999, this Court granted the
petition for review on the following issue:

WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL
PREJUDICE OF APPELLANT IN DENYING THE DEFENSE MOTION TO STRIKE TESTIMONY
OF APPELLANT'S WIFE AT THE ARTICLE 32 PRETRIAL INVESTIGATION, WHERE THE
WIFE'S APPEARANCE AT THE INVESTIGATION WAS PROCURED BY AN ILLEGAL SUBPOENA
AND APPELLANT WAS DENIED HIS RIGHT TO A PROPERLY CONDUCTED PRETRIAL INVESTIGATION.

Finding that appellant lacks standing to object
to the subpoena, we affirm.

FACTS
On February 26, 1996, trial counsel in the
case at bar obtained a "subpoena" from German authorities commanding Mrs.
Tashonda Johnson, wife of appellant, to appear at an Article 32, UCMJ,
10 USC § 832, hearing on March 1, 1996. The document issued by German
authorities was styled a "Subpoena for Article 32 Hearing." The cover letter
to Mrs. Johnson from German authorities states, "You are obliged [sic]
to appear on the strength of the subpoena. Should you fail to appear, you
may become liable to afine [sic] up to DM 1.000 or confinement up to six
(6) weeks."
On March 5, 1996, the investigating officer
notified appellant by written memorandum addressed to appellants civilian
defense counsel that he intended to call Mrs. Johnson as a witness
at the Article 32 hearing. Appellant did not move to quash the subpoena
or object to Mrs. Johnsons testimony at the Article 32 hearing
or to the convening authority. Mrs. Johnson was called by the investigating
officer to testify, was sworn as a witness, and proceeded without objection
to testify and be cross-examined.
At trial, however, the defense did move
to exclude all testimony given by Mrs. Johnson at the Article 32 hearing,
for a new Article 32 investigation, and to prohibit the Government
from using the testimony of Mrs. Johnson at trial.
The military judge found as a matter of law
that the subpoena was unlawful and issued without authority. However, he
declined to exclude the testimony of Mrs. Johnson. Instead, he treated
her testimony as a "deposition" under RCM 702, Manual for Courts-Martial,
United States (1998 ed.). He found that appellant did not suffer any prejudice
from having a witness illegally produced at the Article 32 hearing.
Mrs. Johnson was the principal government witness
against appellant. She testified that she told agents of the Criminal Investigation
Command (CID) she had seen appellant hit their daughter 2 times; that appellant
held their 8-month-old daughter upside down just by either her arms or
legs; appellant "usually just drops her in the crib"; and that she saw
appellant bite their daughters feet hard enough to make their daughter
cry. Trial counsel effectively used Mrs. Johnsons Article 32 testimony
during his direct examination.
Appellant argues that the military judge properly
ruled that the prosecution had no authority to issue a subpoena to secure
the attendance of appellants wife, Mrs. Johnson, at the Article 32 hearing,
but that he erred by not striking Mrs. Johnsons Article 32 testimony.
Appellant submits that no prejudice need be shown from the military
judges ruling; however, if prejudice must be established, appellant was
clearly prejudiced by the illegal compulsory attendance of Mrs. Johnson
at the Article 32 hearing.
The Government argues that it was within the
military judges discretion to consider the prior testimony a deposition
and allow trial counsel to impeach his own witness with prior inconsistent
statements. The Government also argues that even if the testimony was obtained
as a result of an unlawful subpoena, appellant was afforded his rights
of cross-examination and compulsory process at the Article 32 investigation.
United States v. Bramel, 29 MJ 958 (ACMR), affd, 32 MJ 3
(CMA 1990).

DISCUSSION
The military judge was correct in ruling that
an illegally ordered "subpoena" was issued to secure the attendance of
appellants wife, Mrs. Johnson, as a witness at the Article 32 hearing.
He was also correct in finding that there was no prejudice to appellants
substantial rights by the improper production of this witness at the Article
32 hearing. We hold that appellant did not have standing to object to the
use of the Article 32 testimony at trial because the evidence presented
against him was reliable.
We first note that the Supreme Court and other
federal courts have permitted third parties to move to quash grand jury
subpoenas directed to another person where a litigant has sufficiently
important, legally-cognizable interests in the materials or testimony sought
to give the litigant standing to challenge the validity of that subpoena.
See, e.g., Gravel v. United States, 408 U.S.
606, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972)(U.S. Senator asserting constitutional
privilege allowed to intervene and move to quash subpoena directed
at his assistant). We see no reason why a third-party challenge either
to a subpoena duces tecum or a subpoena ad
testificandum could not be raised during an Article 32 investigation
if a sufficient basis were provided to establish standing.
Appellant did, however, properly challenge
the Article 32 investigation prior to trial by a Motion for Appropriate
Relief in accordance with the provisions of RCM 906(b)(3). Therefore, we
must test to see whether appellant has standing to object. We have previously
found standing to object

when the actions of the Government impact
upon the reliability of the evidence presented against him at trial, e.g.,
coerced confessions, unlawful command influence, interference with the
rights of confrontation or cross-examination, and interference with the
right to present evidence.

United States v. Jones, 52 MJ 60, 64 (1999).
This is not a case of first impression. In
United States v. Smelley, 33 CMR 516 (ABR 1963), command influence
was alleged based on an authorization given by the convening authority
to take depositions in order to perfect an Article 32 investigation. The
Smelley board of review looked at the question "whether such defect
in an Article 32 investigation is prejudicial or violative of any substantial
right of the accused as to vitiate the pretrial investigation and require
a reversal of the trial proceedings." 33 CMR at 524. The board noted:

Paragraph 34a of the Manual [United
States, 1951], provides that any failure to comply substantially with the
requirements of Article 32 which results in prejudice to the substantial
rights of the accused at the trial  such as a denial of a reasonable opportunity
to secure material witnesses for use at the trial or of an opportunity
to prepare his defense  may result in a miscarriage of justice and disapproval
of the proceedings. In paragraph 69c, it is further provided that
a substantial failure to comply with the requirements of Article 32 and
paragraph 34 of the Manual may be brought to the attention of the court
by a motion for appropriate relief but that such motion should be sustained
only if the accused shows that the defect in the conduct of the investigation
has in fact prevented him from properly preparing for trial or has otherwise
injuriously affected his substantial right.
In essence, the particular prejudice which
appellant claims to have suffered as a result of the alleged unlawful use
of depositions and subpoena in the pretrial investigation is that by virtue
of such facility, otherwise competent and admissible evidence was made
available to support the charges against him and thus permitted their referral
to trial by general court-martial. Counsel for appellant, however, does
not cite any legal authority for the proposition that a defect in a pretrial
investigation which erroneously permits material evidence to be adduced
against an accused constitutes a violation of a substantial right. We are
not aware of any such legal authority nor do we consider that such defect
could reasonably or justly be construed to be a violation of his substantial
right.
In our opinion, even if it were conceded that
subpoena process had been used without lawful authority to compel reluctant
civilian witnesses to give depositions such error singularly operates only
against the interests of the witnesses and it is only they who are intended
to be benefited by the law governing the issuance of subpoena and who can
take exception to a lack of compliance therewith.
In any event there is no showing in the record
or in the pretrial hearing that the defect complained of in the conduct
of the investigation has in fact prevented the defense from preparing for
trial or has otherwise affected accuseds substantial rights....

33 MJ at 524.
The analysis of the Smelley court is
sound, even though the law has changed slightly. Paragraphs 34a
or 69c of the 1951 Manual no longer exist, but the Discussion to
RCM 405(a), Manual, supra (1998 ed.) similarly provides:

Failure to comply substantially with the
requirements of Article 32, which failure prejudices the accused, may result
in delay in disposition of the case or disapproval of the proceedings.

The Discussion then cites "RCM 905(b)(1) and 906(b)(3)
concerning motions for appropriate relief relating to the pretrial investigation."
RCM 906(a) provides:

A motion for appropriate relief is a request
for a ruling to cure a defect which deprives a party of a right or hinders
a party from preparing for trial or presenting its case.

Appellant was neither deprived of a right nor
hindered in presenting his case. This is not an instance where an accuseds
right to produce a witness at an Article 32 investigation or to confront
a witness has been interfered with. Quite the contrary. Appellant and counsel
attended the Article 32 proceedings and the witness testified, without
objection, and was subject to cross-examination. Appellants trial preparation
was not impeded. Rather, he had full notice of the witnesses against him
and an opportunity to confront those witnesses prior to trial. Under these
circumstances, there is no authority supporting an accuseds right to suppress
competent and material evidence against him.
We conclude that the evidence at issue, Mrs.
Johnsons testimony, was reliable, i.e., not the result of "coerced
confessions, unlawful command influence, interference with the rights of
confrontation or cross-examination," or "the right to present evidence".
See Jones, 52 MJ at 64. Therefore, we hold that appellant
had no standing to object. Since appellant does not have standing to object,
we do not reach the question whether the testimony was admissible
as a "deposition" under RCM 702.*
The decision of the United States Army Court
of Criminal Appeals is affirmed.
FOOTNOTE:
* Likewise, we need
not reach the issue whether the testimony might have been admitted under
Mil.R.Evid. 801(d)(1) or 804(b)(1), Manual for Courts-Martial, United States
(1998 ed.).


SULLIVAN, Judge (concurring in the result):
There is no exclusionary rule at trial for
the testimony of a witness who was unlawfully subpoenaed for an earlier
Article 32 hearing. Moreover, there is no per se reversal rule for
a court-martial preceded by an Article 32 hearing where legal error occurred.
Instead, in the context of a failure to provide an accused with qualified
counsel at an Article 32 hearing, this Court has stated the following:

A defect in the preliminary proceeding will
not justify setting aside a conviction unless it clearly appears that the
error prejudiced the accused in some material respect at the trial. . .
. Once the case comes to trial on the merits, the pretrial proceedings
are superseded by the procedures at the trial; the rights accorded to the
accused in the pretrial stage merge into his rights at trial. If there
is . . . no indication that these proceedings adversely affected the accused's
rights at the trial, there is no good reason in law or logic to set aside
his conviction.

United States v. Mickel, 9 USCMA 324, 326,
327, 26 CMR 104, 106, 107 (1958). Thus, this Court looks to the effect
of a pretrial error on the trial, rather than the lawfulness of the Article
32 inquiry, in determining whether reversible error occurred. Here, I can
discern no material prejudice to appellant's trial rights as a result of
this pretrial error.
Appellant's wife was properly subpoenaed for
trial. Defense counsel cross-examined her at trial and used her Article
32 testimony to impeach her credibility. A military police investigator
also interviewed appellant's wife two times besides the illegal Article
32 appearance; he testified at trial that during these interviews, appellant's
wife said appellant hit the victim in the eye on two occasions. R. 230-31.
There was nothing in appellant's wife's Article 32 testimony used to impeach
her that also was not contained in these other two sworn statements. There
also was ample physical evidence on which to convict appellant of the crimes
for which he was charged, i.e., the Government's case did not solely
consist of appellant's wife's testimony, let alone her Article 32 testimony.
Finally, appellant received the benefit of the military judge's instruction
that emphasized the illegality of the subpoena.
Under all of these circumstances, I would dispose
of this case on the bases that there is no exclusionary rule for evidence
obtained from a witness unlawfully subpoenaed for an Article 32 hearing
and that in any event appellant suffered no prejudice from the unlawful
pretrial subpoena.*
FOOTNOTE:
* Under English
common law, there was no absolute exclusionary rule for unlawfully obtained
evidence; and, much of the case law has centered around the breadth of
the trial judge's discretion to admit or exclude evidence and the circumstances
affecting this decision. See, e.g., Kuruma, Son of Kaniu
v. R. [1955] A.C. 197, 203 (P.C.) (Kenya) (affirming lower court's
ruling that evidence obtained by means of an unauthorized search was admissible
on ground that "the test to be applied in considering whether evidence
is admissible is whether it is relevant to the matters in issue. If it
is, it is admissible and the court is not concerned with how the evidence
was obtained") (Lord Goddard, C.J.), citing, inter alia,
Olmstead v. United States, 277 U.S. 438 (1928); Jeffrey v. Black
[1978] Q.B. 490, 497-98 (D.C.) (finding that lower court erred in excluding
evidence obtained by unauthorized and nonconsensual police search on ground
that test for admissible evidence is whether it was relevant and not whether
it was properly obtained; trial judge may exercise discretion to exclude
evidence obtained by trickery or other oppressive, unfair, or morally reprehensible
means, but such circumstances are very exceptional) (Lord Widgery, C.J.);
R. v. Sang [1980] A.C. 402, 437 ("Save with regard to admissions
and confessions and generally with regard to evidence obtained from the
accused after commission of the offence, [a trial judge] has no discretion
to refuse to admit relevant admissible evidence [obtained here by police
inducement] on the ground that it was obtained by improper or unfair means.
The court is not concerned with how it was obtained.") (Lord Diplock) [Lord
Diplock is considered to be one of England's greatest jurisprudential thinkers
in the 20th Century.]; see Kersi B. Shroff and Stephen F. Clarke,
Admissibility of Illegally Obtained Evidence: A Comparative Analysis
of the Laws of England, Scotland, Ireland, Canada, Australia, and New Zealand,
Library of Congress Law Library, American-British Law Division 7-16 (1981)
(discussing issue of admissibility of illegally obtained evidence in England
and noting that, in cases in which issue has been "directly presented,"
the courts "have virtually always ruled in favor of admissibility" - at
7).
In 1984, the United Kingdom
attempted by legislation to clarify some of the uncertainty regarding the
proper scope of the trial judge's discretion in admitting unlawfully obtained
evidence. See Police and Criminal Evidence Act 1984 §78, Exclusion
of unfair evidence, Notes, Vol. 17, at 236 (Halsburys Statutes 4th
ed. 1999 reissue). Section 78(1) provides:

In any proceedings
the court may refuse to allow evidence on which the prosecution proposes
to rely to be given if it appears to the court that, having regard to all
the circumstances, including the circumstances in which the evidence was
obtained, the admission of the evidence would have such an adverse effect
on the fairness of the proceedings that the court ought not to admit it.

§ 78(1).
In the cases following
passage of § 78, there is still a trend toward admission of unlawfully
obtained evidence. See R. v. Khan (Sultan) [1996] 3 All ER
289, 302 (H.L.) (dismissing appeal on grounds that unlawful use of surveillance
devices did not render evidence inadmissible (Lord Nolan) and that trial
judge's discretion had to be exercised according to whether admission of
evidence would render trial unfair (Lord Nicholls of Birkenhead)). The
fact that evidence was obtained unlawfully does not necessarily mean that
it had an adverse effect on the trial. E.g., R. v. Chalkley
[1998] Q.B. 848, 874, 876 (C.A.) (holding that unlawful or oppressive police
conduct does not "automatically" require exclusion of evidence under §
78, and dismissing appeal on ground that admission of evidence obtained
by audio surveillance was fair with regard to all circumstances).


GIERKE, Judge (concurring in the result):
There are two separate issues of standing
involved in this case. The first issue pertains to appellants standing
to assert a violation of his wifes rights. The second issue pertains to
appellants standing to assert that the illegal subpoena adversely affected
the reliability of the evidence or fairness of his trial. In my view, appellants
lack of standing with respect to the first issue does not deprive him of
standing with respect to the second issue. See United States
v. Golston, 53 MJ 61, 64 n. 1 (2000).
In any event, we need not decide whether
the military judge should have suppressed Mrs. Johnsons Article 32 testimony,
for two reasons: (1) the issue is moot, and (2) it was waived. The issue
is moot because Mrs. Johnsons Article 32 testimony was never admitted
as a prosecution exhibit. See United States v. Napoleon,
46 MJ 279, 281, cert. denied, 522 U.S. 953 (1997). The issue was
waived because Mrs. Johnsons Article 32 testimony was used only to refresh
her recollection and to impeach her, and defense counsel did not object
to use of the Article 32 testimony for these purposes. See Mil.
R. Evid. 103(a), Manual for Courts-Martial, United States (1995 ed.).*
Because the Article 32 testimony was cumulative to other impeachment evidence,
such as Mrs. Johnsons two statements to the CID, I am satisfied that there
was no plain error. See Mil. R. Evid. 103(d); United States v.
Powell, 49 MJ 460 (1998).
FOOTNOTE:
* The 1998 version
of cited provisions is unchanged.


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