                              IN THE CASE OF


                        UNITED STATES, Appellee

                                     v.

                Patrick L. SIMMONS, First Lieutenant
                        U.S. Army, Appellant

                               No. 03-0369

                        Crim. App. No. 20000153


       United States Court of Appeals for the Armed Forces

                        Argued January 14, 2004

                          Decided June 1, 2004

ERDMANN, J., delivered the opinion of the Court, in which GIERKE
and EFFRON, JJ., joined. BAKER, J., filed a separate opinion
concurring in part and dissenting in part. CRAWFORD, C.J.,
filed a separate dissenting opinion.

                                  Counsel

For Appellant: Captain Robert E. Desmond (argued); Colonel
Robert D. Teetsel, Lieutenant Colonel Mark Tellitocci, Major
Allyson G. Lambert, and Captain Gregory M. Kelch (on brief);
Lieutenant Colonel E. Allen Chandler, Jr., Major Imogene M.
Jamison and Captain Mary E. Card.

For Appellee: Captain Ryan R. McKinstry (argued); Colonel
Lauren B. Leeker, Lieutenant Colonel Margaret B. Baines, and
Major Theresa A. Gallagher (on brief).

Military Judge:    John P. Galligan and Stephen R. Henley


  This opinion is subject to editorial correction before final publication.
United States v. Simmons, No. 03-0369/AR



      Judge ERDMANN delivered the opinion of the Court.

      First Lieutenant Patrick L. Simmons was tried by a general

court-martial composed of officer members and was convicted of

assault consummated by a battery and conduct unbecoming an

officer and gentleman in violation of Articles 128 and 133,

Uniform Code of Military Justice [UCMJ], 10 U.S.C. §§ 928 and

933 (2000), respectively.       The adjudged and approved sentence

included dismissal, confinement for nine months, and total

forfeiture of all pay and allowances.

      Prior to trial, Simmons filed a motion to suppress a

handwritten letter discussing a homosexual relationship and a

portion of a videotaped interrogation conducted by civilian law

enforcement officials concerning the letter.      Simmons argued

that the letter had been discovered and seized in violation of

his Fourth Amendment rights and that the challenged portions of

the videotaped statement were derivative of the illegally seized

letter.   The military judge denied the motion to suppress and

both the letter and the videotaped statement were admitted into

evidence.

      The Army Court of Criminal Appeals held that the search

leading to the discovery of the letter violated the Fourth

Amendment and that the military judge had erred in allowing the

admission of the letter and the derivative videotaped statement

into evidence.     It determined, however, that the military


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United States v. Simmons, No. 03-0369/AR


judge's error was “harmless beyond any reasonable doubt.”

United States v. Simmons, ARMY 20000153, slip op. at 9 (A. Ct.

Crim. App. March 31, 2003).       We granted review of the following

issue:

            WHETHER THE ARMY COURT OF CRIMINAL APPEALS
            ERRED WHEN IT FOUND THAT APPELLANT’S 4TH
            AMENDMENT RIGHTS WERE VIOLATED BUT THEN
            CONCLUDED THAT THE ERROR WAS HARMLESS BEYOND
            A REASONABLE DOUBT.

      We hold that the Court of Criminal Appeals correctly

assessed the effect of the improperly admitted evidence with

respect to a portion of Simmons' finding of guilt under Article

133, but erred in concluding that the effect of the improperly

admitted evidence on the Article 128 assault conviction was

harmless beyond a reasonable doubt.

                                 BACKGROUND

     Both convictions flow from Simmons' relationship with an

enlisted subordinate in his unit, Private First Class (PFC) W.

At some point in early August 1999, Simmons and PFC W entered

into an arrangement under which PFC W occupied, at times, one of

the two bedrooms in the off-post apartment leased by Simmons in

Killeen, Texas.     Although PFC W was not a party to the apartment

lease, he kept several sets of clothing there and spent

approximately 15 nights at the apartment during August 1999.

     On August 29 Simmons and PFC W had an argument.       PFC W

subsequently left the apartment but returned later in the



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United States v. Simmons, No. 03-0369/AR


afternoon with another soldier to pick up some personal items.

Upon his return, PFC W and Simmons engaged in an escalating

confrontation that eventually turned physical.

      At that point, the soldier who had accompanied PFC W to the

apartment contacted the police.        Officer Fox of the Killeen

Police Department arrived on the scene and asked Simmons what

had happened.    Simmons advised Officer Fox that there had been a

fight but that PFC W had already left the apartment.       After the

other soldier advised Officer Fox that PFC W had not in fact

left the apartment, Simmons consented to Officer Fox's entry

into the apartment where he discovered PFC W lying unresponsive

on the floor in a pool of blood.

      Simmons told Officer Fox that PFC W had barged in and that

he [Simmons] "had to kick his ass."        Due to the amount of blood

and the nature of PFC W's injuries, Officer Fox believed that a

weapon had been used and he ordered Simmons to the floor and

frisked him for weapons, but found none.       After interviewing

several witnesses, Officer Fox arrested Simmons for assaulting

PFC W and Simmons was transported to the Killeen Police

Department for questioning.

      Officer Fox conducted two brief searches of the apartment

looking for a weapon, but no weapon was found and no evidence

was seized as a result of those searches.       After Officer Fox had

concluded his second search and 20 minutes after Simmons had



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United States v. Simmons, No. 03-0369/AR


been removed from the scene, Investigator Boone of the Killeen

Police Department arrived and Officer Fox advised him that he

had already searched for a weapon.         Investigator Boone spent the

next hour to hour and a half taking photographs, examining

clothing and conducting his own search of the apartment.          After

observing a bloodstain on the sink and counter in the guest

bathroom, Investigator Boone entered the bathroom and opened a

closed medicine cabinet.

      Upon opening the cabinet door, Investigator Boone observed

a manila file folder with handwritten text on the outside of the

folder.   Without removing the folder, Investigator Boone read

the text.    According to Investigator Boone, the text discussed a

homosexual relationship and, based on his assessment that the

handwriting appeared similar to other visible items in the

apartment bearing Simmons' name, Boone seized the letter as

evidence of possible motive for the assault.        Officer Fox

testified that Investigator Boone's comment to him upon finding

the letter was something to the effect of "This is going to be

good."

     The next morning Investigator Boone interrogated Simmons

for over an hour concerning the circumstances surrounding the

fight with PFC W and videotaped that interrogation.        Simmons

initially denied anything more than a platonic relationship with

PFC W, but when Investigator Boone informed him that he had



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United States v. Simmons, No. 03-0369/AR


seized the handwritten letter, Simmons admitted to a sexual

relationship with PFC W.       This admission occurred during the

last three minutes of the interrogation.

     Simmons sought to suppress both the handwritten letter and

his videotaped statement on the grounds that the search by which

the letter had been discovered and its subsequent seizure had

occurred in violation of his Fourth Amendment rights.      The

military judge denied that motion and Simmons ultimately

testified in his own defense at trial concerning his

relationship with PFC W, including the circumstances surrounding

the seized letter and the homosexual nature of their

relationship.    Simmons indicated that PFC W had at first

blackmailed him regarding his homosexuality, but that they

subsequently became friends and that the relationship became

sexual.   He further testified to having taken PFC W to his

family reunion and to having lent him money that PFC W had

failed to repay.

     With respect to the assault charge, Simmons raised the

defense of self-defense.       He testified that PFC W continuously

came at him and that he struck back simply to keep him away.

Simmons also testified that PFC W had injured him on prior

occasions by punching him, pushing him into a bathtub and

cracking a rib, kicking him in the stomach, biting his finger,

hitting him in the face, grabbing his testicles and stabbing him



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United States v. Simmons, No. 03-0369/AR


in the back with a knife.       Simmons stated that due to these

prior beatings, at the time of the fight with PFC W, he was in

fear for his life.

      The soldier who had accompanied PFC W to the apartment was

the only other witness to the fight.       He testified that he never

saw Simmons strike PFC W and that the only physical act he

observed was PFC W having Simmons pinned against a glass window

with his forearm against Simmons' throat.      The soldier separated

the two because of his concern that Simmons could have gone

through the window and been severely cut by the glass.        According

to the soldier, he complied with Simmons’ request to leave the

apartment at that point and then asked a neighbor to call 911.

     PFC W testified under a grant of immunity and, although he

denied any homosexual relationship with Simmons, he acknowledged

that Simmons had confided his homosexuality to him.      He

testified that Simmons had taken him to a homosexual club on two

separate occasions, had attempted to kiss him twice and had

grabbed his buttocks on a few occasions.

      In regard to the assault charge, PFC W testified that he

had returned to the apartment to retrieve his clothing and

effects.   He testified, however, that he had no specific

recollection of the assault apart from being grabbed from

behind, exchanging words with Simmons concerning telephone calls

made to PFC W's girlfriend and hitting the ground with blood



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United States v. Simmons, No. 03-0369/AR


coming out of his nose and mouth.          The injuries PFC W sustained

as a result of the assault included a fracture of the bones

right below the right eye, a fracture through the thin part of

the skull just above and in front of the right ear, and a small

amount of bleeding just over the surface of the brain.

     The members found Simmons not guilty of the charged assault

in which grievous bodily injury is inflicted, but guilty of the

lesser-included offense of assault consummated by battery.         The

members also found him guilty of conduct unbecoming an officer

and a gentleman, with the language of the guilty finding

modified through exceptions and substitutions as follows:

      [O]n or between 01 September 1998 and 29 August 1999, at or
      near Camp Dobol, Bosnia and Fort Hood, Texas, wrongfully
      enter into an unprofessional relationship with [PFC W], a
      subordinate, to wit: a close personal friendship, a rent-
      paying roommate regular over-night [sic] guest
      relationship, an intimate relationship involving sexual
      contact, and the pursuit of a continued romantic
      relationship by means of writing and delivering to [PFC W]
      a letter in which the said 1LT Simmons solicited a
      continued romantic relationship, in violation of the
      customs of the United States Army that officers shall not
      fraternize with enlisted persons on terms of military
      equality.

                                 DISCUSSION

     A.    Introduction

      The Government has not certified any challenge to the Court

of Criminal Appeals' determination that the evidence at issue

here was the product of a search and seizure that violated

Simmons' rights under the Fourth Amendment.         See Article



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United States v. Simmons, No. 03-0369/AR


67(a)(2), UCMJ, 10 U.S.C. § 867(a)(2) (2000).      Although we are

not precluded from examining the legal ruling of a service court

in a case where the Judge Advocate General has not certified the

issue for review, we are reluctant to exercise that power and,

as a rule, reserve it only for those cases where the lower

court's decision is "clearly erroneous and would work a manifest

injustice" if the parties were bound by it.      United States v.

Doss, 57 M.J. 182, 185 (C.A.A.F. 2002)(citing Christian v. Colt

Industries Operating Corp., 486 U.S. 800, 817 (1998)).       That is

not the case here.

      We therefore turn to the question presented by the granted

issue, which is whether the Army Court of Criminal Appeals

properly assessed the impact of the military judge's erroneous

denial of Simmons' motion to suppress certain evidence.

      B.    Standard of Review

      The Court of Criminal Appeals properly identified the

applicable legal standard.       After finding that the military

judge erroneously admitted into evidence material that the

Government had obtained in violation of Simmons' rights under

the Fourth Amendment, that error was subject to a "harmless

error" review under Chapman v. California, 386 U.S. 18, 24

(1967).    Under Chapman, a reviewing court must declare the

impact of the error to be "harmless beyond a reasonable doubt"




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United States v. Simmons, No. 03-0369/AR


in order to affirm the resultant conviction.         See e.g., United

States v. Hall, 58 M.J. 90, 94 (C.A.A.F. 2003).

        The Government bears the burden of establishing that any

constitutional error is harmless beyond a reasonable doubt.          Id.

(citing Chapman, 386 U.S. at 24).          Whether the error is harmless

beyond a reasonable doubt is a question of law that we review de

novo.    Id. (citing Arizona v. Fulminante, 499 U.S. 279, 295-96

(1991)).

        The question before this Court, therefore, is whether the

effect of the improperly admitted evidence on Simmons'

convictions was harmless beyond a reasonable doubt.         The inquiry

under the Chapman analysis is whether "it appears 'beyond a

reasonable doubt that the error complained of did not contribute

to the verdict[s] obtained.'"        Mitchell v. Esparza, ___ U.S.

___, ___, 124 S.Ct. 7, 11 (2003)(per curiam)(quoting Neder v.

United States, 527 U.S. 1, 15 (1999)).          See also Hall, 58 M.J.

at 94.

        C.       The Article 133 Conviction

        The finding of guilt in regard to the Article 133

conviction reflects a determination by the members that Simmons

engaged in the following with PFC W:

             •   a close personal friendship;

             •   a regular overnight guest relationship;




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United States v. Simmons, No. 03-0369/AR


         •   an intimate relationship involving sexual

             contact; and

         •   the pursuit of a continued romantic relationship

             by means of writing and delivering to PFC W a

             letter in which Appellant solicited a continued

             romantic relationship.

      In regard to the “pursuit of a continued romantic

relationship” portion of the finding, in order for us to deem

the erroneous admission of the illegally seized letter "harmless

beyond a reasonable doubt," we would have to conclude that it

"did not contribute to" a guilty finding that makes specific

reference to the letter itself.        Neder, 527 U.S. at 15.    That we

cannot do.    The very act of "writing and delivering" that letter

was an explicit part of the criminal conduct that Simmons was

charged with and found guilty of.          Absent the erroneous admission

of the letter into evidence, the members could not have found him

guilty of "writing and delivering" it.

      We also cannot conclude, beyond a reasonable doubt, that

the admission of the letter and the derivative videotaped

statement by Simmons concerning the sexual nature of his

relationship with PFC W "did not contribute to" that portion of

the guilty finding regarding "an intimate relationship involving

sexual contact."     The letter indicates that "sex w/ [PFC W] was

incredible" and that Simmons knows he will never have sex with



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United States v. Simmons, No. 03-0369/AR


PFC W "until [PFC W] is ready again or never."          The videotaped

statement contains Simmons' acknowledgement that he and PFC W had

sexual relations.

     As the Court of Criminal Appeals noted, however, PFC W

denied having any sexual relationship with Simmons.          Thus, the

only evidence in that regard apart from the improperly admitted

letter and derivative videotaped statement was Simmons' trial

testimony.    Although there was testimony from other witnesses

concerning the friendship between Simmons and PFC W in Bosnia and

at Fort Hood, none of that testimony was directed toward

establishing a sexual relationship.

     Under the circumstances of this case, we are not convinced

that the defense strategy of having Simmons testify at trial

concerning the sexual nature of the relationship would have been

the same in the absence of the improperly admitted evidence.          See

e.g., United States v. Grooters, 39 M.J. 269, 273 (C.A.A.F. 1994)

(accused may not have been compelled to testify to explain

improperly admitted statements); United States v. Bearchild, 17

C.M.A. 598, 602, 38 C.M.R. 396, 400 (1968)(in-court testimony

tainted if given to overcome inadmissible confession).          Although

we need not determine whether their improper admission was the

exclusive motivation, Simmons' trial testimony on this aspect of

the charged offense was clearly responsive to the letter and

derivative videotaped statement.           In the absence of those items



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United States v. Simmons, No. 03-0369/AR


of evidence (which should not have been admitted) or supporting

testimony from PFC W (which did not exist), the record does not

reflect any other evidence available to demonstrate the existence

of "an intimate relationship involving sexual contact."    Under

those circumstances, we cannot view Simmons' trial testimony as

an "independent" basis for concluding that the improperly

admitted evidence "did not contribute to" that portion of the

finding regarding sexual contact.

     We can conclude, however, that the admission of the

improper evidence did not contribute to the remaining portions

of the finding, that Simmons engaged in "a close personal

friendship" and "regular over-night [sic] guest" relationship

with PFC W.    As noted by the Court of Criminal Appeals, there

was testimony and evidence unrelated to the improperly admitted

letter and derivative statement that demonstrated the

unprofessional character of Simmons' relationship with PFC W:

      In addition to PFC W's testimony, a staff sergeant in
      appellant's platoon testified that the noncommissioned
      officers expressed concerns about appellant's relationship
      with PFC W; that he saw PFC W driving appellant's car; and
      that personnel commented that if someone wanted to find
      appellant when in the field, he or she would likely find
      him at PFC W's medic track. Appellant's platoon sergeant
      also testified that appellant spent a lot of time at the
      medic track; that PFC W and appellant called each other by
      their first names; that appellant pulled PFC W off of guard
      duty when they were deployed to Bosnia. A neighbor in the
      apartment complex testified that PFC W lived in appellant's
      apartment. Private First Class W's fiancée testified that
      PFC W lived with "Patrick," the appellant. A written
      statement given by appellant to [Investigator] Boone, in
      which appellant accounts for the events on the day the


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United States v. Simmons, No. 03-0369/AR


      assault occurred, was admitted into evidence without
      objection. Appellant referred to PFC W by his first name
      throughout the statement; stated that PFC W had stayed
      overnight in his apartment the prior evening; mentioned
      that he cancelled a visit that he and PFC W had planned to
      appellant's sister-in-law; and drank beer together while
      watching football games.

Simmons, slip op. at 7-8.       The quantum and character of the

evidence specifically referred to by the Court of Criminal

Appeals above is not related to or otherwise a product of the

illegally seized letter or the derivative videotaped statement.

Moreover, Simmons did not seriously contest the friendship and

roommate aspects of the charge.        In light of those

circumstances, we conclude beyond a reasonable doubt that the

constitutional error did not contribute to that portion of the

guilty finding that refers to "engaging in a close personal

friendship" and a "regular over-night [sic] guest" relationship

with PFC W.    See Neder, 527 U.S. at 15.

     Accordingly, while we conclude that the military judge’s

error was not harmless beyond a reasonable doubt with respect to

the members' guilty finding of conduct unbecoming an officer and

a gentleman in regard to the sexual contact and the improperly

admitted letter, we conclude that the military judge's error was

harmless beyond a reasonable doubt with respect to that portion

of the members' guilty finding that Simmons violated Article 133

by engaging in "a close personal friendship" and "regular over-

night [sic] guest" relationship with PFC W.



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United States v. Simmons, No. 03-0369/AR


      D.    The Article 128 Conviction

     The Court of Criminal Appeals focused exclusively on

Simmons' conviction under Article 133 and did not assess the

impact of the erroneously admitted evidence on Simmons'

conviction for assault consummated by a battery.      While they are

distinct criminal offenses our inquiry remains the same -- can

the Government demonstrate beyond a reasonable doubt that the

admission of the illegally seized letter and the derivative

videotaped statement did not contribute to the finding of guilt

under the assault charge?       See Neder, 527 U.S. at 15.

     The Government has not met its burden here.       Under the

Government's theory of the case, the assault was the direct

product of Simmons' alleged unrequited homosexual "obsession"

with PFC W.    In fact, trial counsel referred to the illegally

seized letter in the beginning, middle and end of his closing

argument.    The illegally seized letter and derivative videotaped

statement were the obvious centerpieces of the Government's

theory and, as discussed above, were the only evidence apart

from Simmons’ derivative trial testimony that concerned a

homosexual relationship.       Simmons, on the other hand, vigorously

contested that theory of the assault and raised evidence under a

self-defense theory.      PFC W testified to only a limited

recollection of the events surrounding the fight.      The only




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United States v. Simmons, No. 03-0369/AR


other witness testified that he saw PFC W pinning Simmons to a

window with his arm to his throat.

      Under those circumstances, the Government has not met its

burden of demonstrating that the error was harmless beyond a

reasonable doubt under the Chapman analysis.      We cannot say that

the improper admission of the evidence at issue here and the "gay

obsession" theory that it was offered in support of did not

contribute to the finding of guilty under the assault charge.

See Neder, 527 U.S. at 15.

                                 CONCLUSION

     The decision of the United States Army Court of Criminal

Appeals is reversed.      The finding of guilty of Charge II, its

specification and the sentence are set aside.     That portion of

the specification under Charge I referring to "an intimate

relationship involving sexual contact" and "the pursuit of a

continued romantic relationship by means of writing and

delivering to [PFC W] a letter in which the said 1LT Simmons

solicited a continued romantic relationship" is set aside, but

Charge I and the balance of its specification is affirmed.     The

case is returned to the Judge Advocate General of the Army.     A

rehearing on Charge II and the sentence may be ordered.     If a

rehearing as to Charge II is deemed impracticable, the dismissal

of Charge II and a rehearing as to sentence alone may be

ordered.



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United States v. Simmons, No. 03-0369/AR


     BAKER, Judge (concurring in part and dissenting in part):

     I concur in the majority’s treatment of Appellant’s

conviction under Article 133, Uniform Code of Military Justice

[hereinafter UCMJ], 10 U.S.C. § 933 (2000).    However, for the

reasons stated below, I respectfully dissent from the majority’s

analysis regarding Appellant’s conviction under Article 128,

UCMJ, 10 U.S.C. § 928 (2000).

     As the majority recounts, the Court of Criminal Appeals

determined that the search of Appellant’s apartment, resulting

in the discovery of his letter to Private First Class (PFC) W,

violated Appellant’s Fourth Amendment rights.   As a result, the

letter should have been suppressed at trial.    Since this was a

constitutional error, the question before this Court is whether

the admission of the letter was harmless beyond a reasonable

doubt.   Chapman v. California, 386 U.S. 18, 24 (1967); United

States v. Hall, 58 M.J. 90, 94 (C.A.A.F. 2003).    The Government

bears the burden of demonstrating that a constitutional error is

harmless beyond a reasonable doubt.   Chapman, 386 U.S. at 24;

Hall, 58 M.J. at 94.    On these two points the case law is

consistent and clear.   Thus, in Chapman the Supreme Court

stated, “The beneficiary of a constitutional error [must] prove

beyond a reasonable doubt that the error complained of did not




                                  1
United States v. Simmons, No. 03-0369/AR


contribute to the verdict obtained.”1      Chapman, 386 U.S. at 24.

In ruling for the appellant in that case, the Supreme Court also

considered the strength of the Government’s case absent the

constitutional error.   The Court concluded that “though the case

in which this occurred presented a reasonably strong

‘circumstantial web of evidence’ against petitioners, it was

also a case in which, absent the constitutionally forbidden

comments, honest, fair-minded jurors might very well have

brought in not-guilty verdicts.”       Id. at 25-26 (citation

omitted).   See also Harrington v. California, 395 U.S. 250, 254

(1969)(“Our judgment must be based on our own reading of the

record and on what seems to us to have been the probable impact

of the two confessions on the minds of an average jury.”).

     Subsequent to Chapman, the Supreme Court and our Court have

emphasized different facets of the Chapman analysis.       In Arizona

v. Fulminante, the Supreme Court said, “The Court has the power

to review the record de novo in order to determine an error’s

1
 The Supreme Court stated, “We prefer the approach of this Court
in deciding what was harmless error in our recent case of Fahy
v. Connecticut, 375 U.S. 85 [(1963)]. There we said: ‘The
question is whether there is a reasonable possibility that the
evidence complained of might have contributed to the
conviction.’” Chapman v. California, 386 U.S. 18, 23
(1967)(citation omitted). The Court went on to state that
“[t]here is little, if any, difference” between the Fahy test
and the Chapman test “that the error complained of did not
contribute to the verdict obtained.” Id. at 24. Of course, the
Chapman formulation omits the qualifications “reasonable
possibility” and “might have” that are found within the Fahy
test. See id. at 23-24; Fahy, 375 U.S. at 86-87.

                                   2
United States v. Simmons, No. 03-0369/AR


harmlessness.   In so doing, it must be determined whether the

State has met its burden of demonstrating that the admission of

the [coerced] confession . . . did not contribute to

Fulminante’s conviction.”   499 U.S. 279, 295-96 (1991)(citations

omitted)(emphasis added).   We adopted the same point of emphasis

in United States v. Grooters, 39 M.J. 269 (C.M.A. 1994).    In

weighing the strength of the Government’s case against the taint

of constitutional error, we stated, “The Government . . . must

exclude the ‘reasonable possibility that the evidence complained

of might have contributed to the conviction.’”     Id. at 273

(quoting Fahy, 375 U.S. at 86-87)(emphasis added).

      However, in Neder v. United States, 527 U.S. 1 (1999) the

Supreme Court focused not only on the contribution of the

tainted evidence, but also on the strength of the Government’s

case and therefore the impact of the tainted evidence:    “We

think, therefore, that the harmless-error inquiry must be . . .

:   Is it clear beyond a reasonable doubt that a rational jury

would have found the defendant guilty absent the error?”    Id. at

18.   In Hall, we did the same, noting that the focus of the

Chapman inquiry is “on whether the error had or reasonably may

have had an effect upon the members’ findings.”2    Hall, 58 M.J.


2
  In Sullivan v. Louisiana, 508 U.S. 275 (1993), the Supreme
Court applied a per se rule of prejudice where the jury was
provided an unconstitutional reasonable doubt instruction.
There the Court determined that application of the Chapman

                                 3
United States v. Simmons, No. 03-0369/AR


at 94 (emphasis added)(quoting United States v. Bins, 43 M.J.

79, 86 (C.A.A.F. 1995)).   See also United States v. Grijalva, 55

M.J. 223, 228 (C.A.A.F. 2001)(admission of tainted evidence

harmless beyond a reasonable doubt because it “was not a

significant factor in the determination whether appellant was

guilty of the greater or lesser offense” and powerful and

uncontested evidence of guilt was otherwise presented.)

     The difference in focus between these cases is important,

if not determinative, as to how harmless error analysis applies

in Appellant’s case.   Appellant’s letter was integral to the

Government’s theory of the case.       Appellant argued self-defense

and the Government countered by using the letter to suggest that

Appellant had a motive to beat PFC W, notwithstanding his claim

of self-defense.   Thus, if one focuses on whether the letter

“contributed” to Appellant’s conviction, it would be impossible

to conclude otherwise.

     Such contribution is incalculable.       In theory, all evidence

presented at trial “contributes” in some manner to a panel’s

consideration of the case, including where it is discounted, but

nonetheless informs a panel’s decision to give greater weight to

other evidence.    Thus, I have no doubt that the presentation of


harmless error review was illogical where the jury’s verdict was
itself a nullity. 508 U.S. at 280. “The Sixth Amendment
requires more than appellate speculation about a hypothetical
jury’s action, . . . ; it requires an actual jury finding of
guilty.” Id.

                                   4
United States v. Simmons, No. 03-0369/AR


Appellant’s letter by the Government contributed to the verdict

in this case.   Portions of the letter were read aloud to the

panel during Appellant’s testimony.    The panel read the letter.

There is, therefore, no way of knowing beyond a reasonable doubt

that it did not “contribute” in some manner to their verdict.

      In my view, however, Chapman and Neder require appellate

courts to focus on the impact of the tainted evidence on the

verdict as the measure of the tainted evidence’s potential

“contribution.”3   See Chapman, 386 U.S. at 24; Neder, 527 U.S. at

18.   Otherwise, there would be no need for harmless error

analysis since we would never be able to disaggregate the

relative contribution of one piece of evidence over another

without polling the members and opening jury deliberations to

appellate inspection.    This was the view of Justice Harlan’s

dissent in Chapman.     See 386 U.S. at 55.   The Supreme Court,

however, could not have intended this result or it would not

have upheld the Chapman line of harmless error cases.

      The Neder-Hall impact test leads to a review of other

evidence in this case and, in my view, a different conclusion

than that reached by the majority.     See Neder, 527 U.S. at 18;

Hall, 58 M.J. at 94.    Appellant’s self-defense argument rested

3
 The constitutional error in this case was not of the nature
suggested in Sullivan where the error went to the underlying
validity of the court-martial itself. In that situation, a
harmless error analysis is illogical and should be precluded.
See 508 U.S. at 280.

                                   5
United States v. Simmons, No. 03-0369/AR


upon the nature of his prior altercations with PFC W, the fact

that Specialist (SPC) Dewit, the friend who accompanied PFC W to

the apartment, had seen Appellant pinned against the window by

PFC W’s forearm, and the potential that PFC W could have

fractured his skull by hitting his head on a wooden bar in the

back of the bedroom, as opposed to as a direct result of

Appellant’s blows.    Nevertheless, the evidence against Appellant

of assault consummated by a battery was significant and

substantial.   This is not a case like Grooters where the only

evidence was derivative of the tainted evidence.     39 M.J. at

273.

       •   First, SPC Dewit, intervened to break up the fight

           between Appellant and PFC W at the point where PFC W

           had Appellant pinned against the window with his

           forearm.   Thus, at this point, Appellant had the

           opportunity to walk away from any threat he may have

           felt from PFC W.   SPC Dewit also indicated that

           tempers did not seem to be exceedingly flared so it

           was easy for him to break up the fight.

       •   Second, PFC W’s medical injuries were extensive.

           Doctors and police testified they had never seen

           anyone beaten this badly without the use of a weapon.

           Moreover, the injuries were a product of repeated




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United States v. Simmons, No. 03-0369/AR


           blows, not a singular traumatic strike.   In contrast,

           Appellant’s injuries consisted of one broken knuckle.

       •   Third, Appellant told the police that the individual

           he had the fight with had already left the apartment.

           Officer Fox testified that Appellant told his mother

           over the phone, PFC W “came in and started some shit,

           and I beat his ass down bad.”   Appellant also

           testified that he “may” have hit PFC W while PFC W was

           on the ground.


     After weighing the strength of the Government’s case

against the potential contribution of the tainted evidence, I am

convinced beyond a reasonable doubt that a rational panel would

have found Appellant guilty of assault consummated by battery

absent the error.   See Neder, 527 U.S. at 18.   Therefore, I

respectfully dissent in part.




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United States v. Simmons, No. 03-0369/AR


     CRAWFORD, Chief Judge (dissenting):

     The majority ignores∗ the “touchstone of the Fourth

Amendment” -- the reasonableness of police action at the scene

of the crime.   See, e.g., Florida v. Jimeno, 500 U.S. 248, 251

(1991).   The majority also gives short shrift to several salient

facts, including: Appellant lied to the police regarding what

transpired in his apartment, and then became very agitated as

the police were trying to control the crime scene, aid the

victim, ensure their own safety, and gather evidence.    The

actions of the responding police officer and his back-up under

these circumstances were more than reasonable.

     The Fourth Amendment has two clauses: reasonableness and

probable cause.   Most importantly, the Fourth Amendment requires

all government searches and seizures to be reasonable.     The

search in this case satisfied that requirement and is not

precluded by Mincey v. Arizona, 437 U.S. 385 (1978), or Flippo

v. West Virginia, 528 U.S. 11 (1999).   In addition to the search

being reasonable, it also may be justified as incident to the

lawful arrest of Appellant.   Accordingly, I respectfully dissent

from the lead opinion.




∗
  We are not bound by the lack of a Government challenge to the
Court of Criminal Appeals opinion. See United States v.
Williams, 41 M.J. 134, 135 (C.M.A. 1994).
United States v. Simmons, No. 03-0369/AR


                                FACTS

     It is important to highlight additional facts of this case

to understand the reasonableness of the police officer’s action.

     On August 29, 1999, at 6:25 p.m., a Kileen, Texas, Police

Officer, Eric Fox, arrived at Appellant’s apartment in response

to a report of a fight.   When Officer Fox arrived, he approached

Specialist (SPC) Dewit, who said that he had accompanied PFC W,

the assault victim, to the apartment to remove PFC W’s personal

belongings.   Officer Fox then approached the apartment and

talked to Appellant.   Appellant said there had been a fight, but

that the friend with whom he fought had departed.     SPC Dewit, by

contrast, told the officer no one had left the scene.

     Officer Fox then asked to enter the apartment.      Appellant

was initially reluctant, but eventually allowed him to enter the

apartment to see if anyone was injured after the fight.     Officer

Fox made a visual sweep of the apartment and found PFC W

unconscious lying in a pool of blood on the floor in the guest

bedroom next to the bathroom door.      At first, Appellant complied

with Officer Fox’s order to stay on his knees, but then became

agitated and stood up.    Officer Fox asked what had happened.

Officer Fox stated that Appellant “proclaimed that [PFC W] had

barged in and he had to kick his ass.”     Appellant then “got up

off the ground . . . then again ordered him to the ground, and

there was a small scuffle.   [Officer Fox] did have to place him


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United States v. Simmons, No. 03-0369/AR


in [hand]cuffs.”   Appellant continued to insist that PFC W had

barged in, but Officer Fox challenged this assertion by noting

that there was no damage to the front door.   A very agitated

Appellant still insisted that PFC W had barged in.   Officer Fox

again ordered him to the floor.   “Due to his size and me still

trying to watch the victim, [Officer Fox] pull[ed] out [his]

pepper spray and advised that [he] would have to spray him.     He

did calm down again, but then escalated his behavior again.”

Appellant was ordered to his knees a number of times, causing

Officer Fox to pull out the pepper spray.   Because of

Appellant’s reactions, Officer Fox quickly ordered back-up and

an ambulance, and handcuffed Appellant.

     Within five minutes of the backup request, additional

officers arrived, took control of Appellant, and secured the

apartment.   Within 15 or 20 minutes after the officers had

secured the crime scene and left, Investigator Patrick Boone

arrived.   Even though the other officers had left and

Investigator Boone had arrived, the police did not know who else

might be involved and Appellant was not cooperative.

Accordingly, Investigator Boone conducted a search of the

bedroom and bathroom for a weapon.    While looking for weapons,

he opened the medicine cabinet, which is about three feet from

where the victim had been before he was moved, and noticed a

manila folder with writing on the outside, admitted at trial as


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United States v. Simmons, No. 03-0369/AR


Prosecution Exhibit 6.   Investigator Boone described the folder

as being “immediately visible” and “in plain view.”   “Without

removing the [folder] from the cabinet, Investigator Boone began

reading the front side; the handwriting appeared similar to

other visible items in the apartment bearing the accused’s

name.”   Investigator Boone, who had prior military service,

thought it “strange that a private would be sharing an apartment

with an officer.”   After reading the note, “[Investigator] Boone

concluded the letter provided a motive for the accused to

assault [PFC W] and seized it as evidence.”   Investigator Boone

stayed at the crime scene for approximately an hour and a half,

to take crime scene photographs, including photographs of the

blood splatters and blood swipes.

     The next morning, Investigator Boone interrogated

Appellant, who described the circumstances surrounding the

fight.   Appellant, a platoon leader, denied anything more than a

platonic friendship with PFC W.   Investigator Boone then asked

him about the handwritten note, and Appellant admitted to a

sexual relationship with PFC W.   After the judge denied the

motion to suppress the note, Appellant entered a guilty plea to

fraternization by exceptions and substitution in the lesser

included offense of assault by inflicting grievous bodily harm.

     In denying the motion to suppress, the judge said:     “Under

the circumstances of this case, I find the accused forfeited any


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United States v. Simmons, No. 03-0369/AR


reasonable expectation of privacy he may have had in the letter

when he surrendered it to [PFC W]. . . .”    The judge held that

the seizure of the letter “from the medicine cabinet was

incident to the accused’s lawful arrest.”    The search was

“substantially contemporaneous with the accused’s arrest and

especially limited to the area within the accused’s immediate

control.”

                             DISCUSSION

     The Bill of Rights grants American citizens extensive

rights.    Courts and commentators have long debated the

application of these rights to servicemembers.   See, e.g.,

United States v. Lopez, 35 M.J. 35, 41 n.2 (C.M.A. 1992);

Fredric I. Lederer & Frederic L. Borch, Does the Fourth

Amendment Apply to the Armed Forces?, 3 Wm. & Mary Bill Rts J.

219 (1994), reprinted and expanded in 144 Mil. L. Rev. 110

(1994).    This Court in United States v. Jacoby, 11 C.M.A. 428,

430-31, 29 C.M.R. 244, 246-47 (1960), stated that “the

protections of the Bill of Rights, except for those which are

expressly, or by necessary implication inapplicable, are

available to members of the armed forces.”   One of the most

important of these rights is the Fourth Amendment right to

privacy:

     The right of the people to be secure in their persons,
     houses, papers, and effects, against unreasonable
     searches and seizures, shall not be violated; and no


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United States v. Simmons, No. 03-0369/AR


        Warrants shall issue, but upon probable cause,
        supported by Oath or affirmation, and particularly
        describing the place to be searched, and the persons
        or things to be seized.

        Investigator Boone’s actions in this case were reasonable

and could be justified under the search incident-to-arrest

doctrine.    Neither Mincey nor Flippo precludes holding that

Investigator Boone’s actions were reasonable.     Mincey resulted

from an undercover drug bust gone awry, which entailed a four-

day search to obtain evidence.    An undercover police officer,

Barry Headricks, had arranged to purchase drugs from the

appellant Mincey at Mincey’s house.     Mincey ostensibly left the

house to obtain money.    On his return, he was accompanied by

nine other plain clothes policemen and a deputy county attorney.

John Hodgman, one of three of Mincey’s housemates, opened the

door.    Upon seeing the entourage, Hodgman immediately attempted

to slam the door, but Headricks slipped inside and moved quickly

to the bedroom.    The officers were able to push Hodgman back,

but a volley of shots rang out, one of them striking Headricks,

who was wounded and semiconscious on the floor.     Officer

Headricks died a few hours later.      After the victims were

removed from the scene, a four-day search that included opening

dresser drawers ensued.    Mincey, 437 U.S. at 387-89.

        The Supreme Court rejected the prosecution’s argument that

Mincey forfeited any reasonable expectation of privacy or “that



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United States v. Simmons, No. 03-0369/AR


the police entry to arrest Mincey was so great an invasion of

his privacy that the additional intrusion caused by the search

was constitutionally irrelevant.”     Id. at 391.   The Court stated

that “this claim is hardly tenable in light of the extensive

nature of this search.”   Id.   It is one thing to argue that a

person arrested has a lesser expectation of privacy, but “[i]t

is quite another to argue that he also has a lesser right of

privacy in his entire house. . . .    Indeed, this very argument

was rejected when it was advanced to support the warrantless

search of a[n] [entire] dwelling where a search occurred as

‘incident’ to the arrest of its occupant.”    Id.

       The Court also rejected the argument that there was a

lawful search “in light of the extensive nature of this search.”

Id.    “[A] four-day search that included opening dresser drawers

and ripping up carpets can hardly be rationalized in terms of

legitimate concerns that justify an emergency search.”     Id. at

393.   The actions of the police in Mincey were an over-reaction

to the killing of a police officer.    The Supreme Court in Mincey

did not state at what point during the four days the officers

crossed the line.   Instead, the Court remanded the case to the

state court for a determination as to what evidence was lawfully

gathered.   Id. at 395 n.9

       Importantly, the Court in Mincey recognized that the Fourth

Amendment does not prohibit warrantless entries if a person is


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United States v. Simmons, No. 03-0369/AR


reasonably believed to be in need of aid.    Nevertheless, such

searches must be “strictly circumscribed by the exigencies which

justify its initiation . . . and simply cannot be contended that

this search was justified by any emergency threatening life or

limb.”    Id. at 393 (citation omitted).   As in the instant case,

and most similar cases, the police often call for back-up to

assist any victims, secure the crime scene, and ensure there is

no escape by the suspect.    Courts have upheld the follow-up

entry of additional police officers in this manner under the

“continuation doctrine”.    See State v. Magnano, 528 A.2d 760,

764 (Conn. 1987).

        Flippo v. West Virginia is also distinguishable.    Flippo

and his wife were vacationing in an isolated cabin in a state

park.    The local authorities received a 911 call from Flippo

stating that he and his wife had been attacked by an intruder

wielding a log and a knife.    When the police arrived on the

scene, they found Mrs. Flippo dead and her head covered with

blood.    After taking Flippo to the hospital, the police returned

to the cabin to investigate, where they unlocked a brief case

and found photographs that incriminated Flippo.    These

photographs were admitted at trial to convict Flippo.

        Addressing the argument that the photographs were

unlawfully seized in violation of Flippo’s Fourth Amendment

right to privacy, the Supreme Court remanded the case because


                                   8
United States v. Simmons, No. 03-0369/AR


the West Virginia Court “simply found that after the homicide

crime scene was secured for investigation, a search of ‘anything

and everything found within the crime scene area’ was ‘within

the law,’” and “made no attempt to distinguish Mincey.”       Flippo,

528 U.S. at 14-15.   On remand, the West Virginia Supreme Court

found that because Flippo had consented for the police to return

to the premises, the photographs were lawfully seized as

evidence.   State v. Flippo, 575 S.E.2d 170 (W. Va. 2002).

     The facts of the instant case establish the reasonableness

of Investigator Boone’s actions.       Certainly, because the search

in this case was a continuation of the initial entry, rather

than an entirely new entry, Investigator Boone’s search of the

immediate area was appropriate.    See, e.g., Magnano, 528 A.2d at

764; People v. Reynolds, 672 P.2d 529, 531 (Colo. 1983).       The

continuation doctrine permits officers who are called to the

scene as back-up support to take photographs and gather

evidence, while the initial responding officer is still on the

premises.

     Additionally, the search incident-to-arrest doctrine

justifies “the opening of containers found within the physical

area covered by the search.”   United States v. Hudson, 100 F.3d

1409, 1419 (9th Cir. 1996).    In determining whether the object

seized was within the “immediate control” of the defendant, the

crucial time “for analysis . . . is the time of the arrest and


                                   9
United States v. Simmons, No. 03-0369/AR


not the time of the search.”   In re Sealed Case 96-3167, 153

F.3d 759, 767 (D.C. Cir. 1998).    In applying this test, the D.C.

Circuit court noted it was in accord with “our sister circuits.”

Id. at 768 n.4.   To hold otherwise “might create a perverse

incentive for an arresting officer to prolong the period during

which the arrestee is kept in an area where he could pose a

danger to the officer.”   Id. at 768 (quoting United States v.

Abdul-Sabor, 85 F.3d 664, 669 (D.C. Cir. 1996)).

     In sum, unlike Mincey, the search in this case was not a

four-day search, but rather a brief search following an arrest

which required Investigator Boone’s back-up to control an unruly

suspect, aid the ailing victim, protect the crime scene from

further disruption, and guarantee the originating officer’s

protection.   Investigator Boone’s search of the bedroom and

bathroom was certainly reasonable under these circumstances, and

the manila folder he seized was found within the radius where an

officer would reasonably check for evidence or a weapon under

the search incident-to-arrest doctrine.    For these reasons, I

would validate the search and affirm Appellant’s conviction.




                                  10
