United States v. Moran , 65 M.J. 178 ( 2007 )

UNITED STATES, Appellee
v.
David F. MORAN, Airman First Class
U.S. Air Force, Appellant
No. 06-0207
Crim. App. No. 35755
United States Court of Appeals for the Armed Forces
Argued November 15, 2006 and March 13, 2007
Decided June 22, 2007
BAKER, J., delivered the opinion of the Court, in which STUCKY and
RYAN, JJ., joined. EFFRON, C.J., filed an opinion concurring in part
and in the result. ERDMANN, J., filed an opinion concurring in the
result.
Counsel
For Appellant: Major Anthony D. Ortiz (argued); Lieutenant
Colonel Mark R. Strickland (on brief).
For Appellee: Captain Jamie L. Mendelson (argued); Colonel
Gerald R. Bruce, Lieutenant Colonel Robert V. Combs, and Major
Matthew S. Ward (on brief); Lieutenant Colonel Gary F. Spencer
and Major Kimani R. Eason.
Amicus Curiae for Appellant: Steven H. Goldblatt, Esq.
(supervising attorney), Richard H. Frankel, Esq. (supervising
attorney), Eamonn K. Moran (law student), Kate Z. Schneider (law
student) (on brief) – for the Appellate Litigation Program,
Georgetown University Law Center.
Amicus Curiae for Appellee: Hardy Vieux, Esq. (supervising
attorney), Sarah Bateman (law student), Susrut Carpenter (law
student), Karim Marshall (law student), Jennifer Myers (law
student) and Bridget Van Buren (law student) (on brief) – for
the Washington College of Law, American University.
Military Judge: Kirk Granier
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Moran, No. 06-0207/AF
Judge BAKER delivered the opinion of the Court.
Appellant was an airman first class (E-3) assigned to
Keesler Air Force Base, Mississippi. Contrary to his pleas, a
general court-martial composed of officer members convicted
Appellant of drunk driving, wrongful distribution of cocaine,
separate specifications of wrongful use of ecstasy, cocaine, and
LSD, and obstruction of justice in violation of Articles 111,
112a and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§§ 911, 912a, 934 (2000), respectively. Appellant was sentenced
to a dishonorable discharge, confinement for twenty-four months,
and reduction in grade to E-1. The convening authority
dismissed the cocaine distribution specification and reassessed
the sentence, approving a bad-conduct discharge, confinement for
twenty months and reduction to E-1. The United States Air Force
Court of Criminal Appeals affirmed. United States v. Moran, No.
ACM 35755, 2005 CCA LEXIS 339, at *13, 2005 WL 2875128, at *5
(A.F. Ct. Crim. App. Oct. 20, 2005) (unpublished).
On Appellant’s petition we granted review of the following
issue:
WHETHER APPELLANT’S SUBSTANTIAL RIGHTS WERE
MATERIALLY PREJUDICED WHEN PROSECUTION WITNESSES
AND TRIAL COUNSEL COMMENTED ON APPELLANT’S
REQUEST FOR AN ATTORNEY AND APPELLANT’S REFUSAL
TO GIVE CONSENT FOR A SEARCH AND SEIZURE OF HIS
HAIR AND BLOOD.
We subsequently specified two additional issues:
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United States v. Moran, No. 06-0207/AF
I. WHETHER EVIDENCE REFLECTING THE ACCUSED’S
EXERCISE OF CONSTITUTIONAL RIGHTS WAS
ADMISSIBLE AS PART OF THE BACKGROUND
SEQUENCE OR CHRONOLOGY OF EVENTS LEADING TO
THE SEIZURE OR DISCOVERY OF OTHERWISE
ADMISSIBLE EVIDENCE.
II. IF EVIDENCE OF THE ACCUSED’S EXERCISE OF HIS
CONSTITUTIONAL RIGHTS WAS ADMISSIBLE FOR
PURPOSES OF ESTABLISHING BACKGROUND SEQUENCE
OR CHRONOLOGY WITHOUT OBJECTION, WAS IT
PLAIN ERROR IF NO INSTRUCTION WAS GIVEN
ADVISING MEMBERS THAT THE EVIDENCE COULD NOT
BE CONSIDERED AS EVIDENCE OF GUILT OR
CRIMINAL CONDUCT.
We conclude that trial counsel’s statement was obvious
error but Appellant has failed to demonstrate material prejudice
to his substantial rights. Also, assuming without deciding that
admission of the contested witness statements was error, their
admission was harmless beyond a reasonable doubt. As a result,
we affirm.
BACKGROUND
In the course of their testimony, three Government
witnesses at the court-martial either directly or by implication
mentioned Appellant’s invocation of his constitutional rights.
Two of these witnesses testified regarding the allegations of
illegal use and distribution of controlled substances. The
other witness testified regarding the drunk driving allegation.
During closing argument on findings trial counsel commented on
Appellant’s exercise of his rights, specifically drawing the
members’ attention to Appellant’s exercise of his right to
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United States v. Moran, No. 06-0207/AF
counsel and implying that invocation of the right reflected his
guilt.
Though Appellant requested and received an instruction on
his right to remain silent, defense counsel did not object to
either the witnesses’ or trial counsel’s statements. Further,
there were no sua sponte curative or limiting instructions to
the members mitigating any potential prejudice.
Appellant now argues that his substantial rights were
materially prejudiced by both the witnesses’ testimony and the
trial counsel’s argument. According to Appellant, since the
drug allegations and the drunk driving offense were “hotly
contested,” the impermissible statements may have eliminated any
reasonable doubt that the members would have otherwise
entertained.
DISCUSSION
Whether there has been improper reference to an accused’s
invocation of his constitutional rights is a question of law
that we review de novo. United States v. Alameda, 57 M.J. 190,
198 (C.A.A.F. 2002) (“[i]ssues involving argument referring to
unlawful subject matter are reviewed de novo as issues of law”).
Having failed to preserve any asserted errors at trial,
Appellant forfeited them absent “plain error.” Military Rule of
Evidence (M.R.E.) 103(a)(1), 103(d); United States v. Bungert,
62 M.J. 346, 347 (C.A.A.F. 2006). Whether there was “plain
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United States v. Moran, No. 06-0207/AF
error” is also a determination reviewed de novo. United States
v. Gudmundson, 57 M.J. 493, 495 (C.A.A.F. 2002).
Plain error is established when: (1) an error was
committed; (2) the error was plain, clear, or obvious; and (3)
the error resulted in material prejudice to an appellant’s
substantial rights. United States v. Powell, 49 M.J. 460, 463-
65 (C.A.A.F. 1998). Appellant has the burden of persuading this
Court that these elements of the plain error test are satisfied.
United States v. Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005).
I. References to an Accused’s Constitutional Rights
The law generally discourages trial counsel’s presentation
of testimony or argument mentioning an accused’s invocation of
his constitutional rights unless, for example, an accused
invites such testimony or argument in rebuttal to his own case.
See, e.g., United States v. Robinson, 485 U.S. 25, 32 (1988)
(finding no constitutional infirmity in a prosecutor’s statement
mentioning the invocation of an accused’s rights if the
statement was a “fair response to a claim made by defendant or
his counsel”); United States v. Carter, 61 M.J. 30, 33 (C.A.A.F.
2005). Such comments may serve to hinder the free exercise of
such rights -- rights that carry with them the “implicit
assurance that [their] invocation . . . will carry no penalty.”
United States v. Daoud, 741 F.2d. 478, 480 (1st Cir. 1984).
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United States v. Moran, No. 06-0207/AF
This constraint against mentioning the exercise of
constitutional rights does not depend on the specific right at
issue. There is “little, if any, valid distinction” between the
harm caused by comments regarding an accused’s invocation of any
protected rights. See, e.g., United States v. Thame, 846 F.2d
200, 206 (3d Cir. 1988) (holding that for the purposes of
finding improper prosecutorial comment, there is no valid
difference between references to an accused’s Fifth, Fourth, or
Sixth Amendment rights) (citation and quotation marks omitted).1
This case addresses comments about an accused’s exercise of
his Fourth and Fifth2 Amendment rights, matters on which this
Court has ruled directly. In United States v. Turner, 39 M.J.
259, 260-61 (C.M.A. 1994), we addressed the prohibition against
comments about an accused’s assertion of his Fourth Amendment
rights. We stated that “the same reasoning that protects from
1
This conclusion was foreshadowed by Justice Black, joined by
Chief Justice Warren, Justice Brennan and Justice Douglas, in
his often-cited concurrence in Grunewald v. United States, in
which Justice Black argued that the “value of constitutional
privileges is largely destroyed if persons can be penalized for
relying on them.” 353 U.S. 391, 425 (1957).
2
In his brief, Appellant has characterized references to his
right to counsel at the interrogation stage as a Sixth Amendment
protection. However, the Manual for Courts-Martial (MCM)
recognizes the distinction between the Fifth Amendment right to
counsel and the Sixth Amendment right to counsel. The context
in which Appellant has referenced the right suggests the
reference is more appropriately to the Fifth Amendment. See
Drafters’ Analysis of the Military Rules of Evidence: Manual
for Courts-Martial, United States, Analysis of the Military
Rules of Evidence app. 22 at A22-15 (2005 ed.).
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United States v. Moran, No. 06-0207/AF
comment an accused’s exercise of a Fifth Amendment privilege
applies equally to assertion of the right to privacy under the
Fourth Amendment.” Id. at 262 (citations omitted).
In United States v. Moore, 1 M.J. 390, 391 (C.M.A. 1976),
we addressed comments regarding, inter alia, an accused’s
exercise of his Fifth Amendment rights stating that:
it is the well-settled law of this Court that it is
improper to bring to the attention of the triers of
fact that an accused . . . asserted his rights to
counsel . . . . This principle is founded upon the
open-eyed realization that to many . . . the
invocation by a suspect of his constitutional and
statutory rights to . . . counsel equates to a
conclusion of guilt -- that a truly innocent accused
has nothing to hide behind assertion of these
privileges.
Citations and footnotes omitted.
This conclusion is echoed in the Military Rules of Evidence
(M.R.E.). “The fact that the accused during official
questioning and in exercise of rights under the . . .
Constitution . . . requested counsel . . . is inadmissible
against the accused.” M.R.E. 301(f)(3).
II. Witness Testimony
We recognize that improper statements made during witness
testimony are subject both to the “crucible of cross
examination” and to credibility determinations by the members.
See, e.g., United States v. Best, 61 M.J. 376, 390 (C.A.A.F.
2005) (Baker, J., concurring in the result) (noting that a
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United States v. Moran, No. 06-0207/AF
witness’s statements having been subjected to the “crucible of
cross examination” provided added assurances of the witness’s
“integrity and impartiality”). Thus, unlike trial counsel’s
statements during argument, a witness’s statement can be
directly tested or clarified. See United States v. Rockwood, 52
M.J. 98, 103 (C.A.A.F. 1999) (citing United States v. LeMere, 22
M.J. 61, 69 (C.M.A. 1986)); compare United States v. Prescott,
581 F.2d 1343, 1352 (9th Cir. 1978) (where the court emphasizes
that it was “use by the prosecutor,” rather than simple mention
by a witness of the fact that the accused invoked her
constitutional rights, that was dispositive).
Nonetheless, statements made by witnesses concerning the
invocation of an accused’s rights must be reviewed closely.
This is especially so when such comments are reiterated by trial
counsel and when the trial is before members rather than a
military judge alone. See, e.g., Alameda, 57 M.J. at 199
(holding that military judge committed constitutional error by
permitting the prosecution to introduce evidence of the
accused’s post-apprehension silence as substantive evidence of
guilt, and then to comment on the evidence in closing argument);
compare Hill v. Turpin, 135 F.3d 1411, 1417-18 (11th Cir. 1998)
(noting prosecutor’s repeated references during the trial to
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United States v. Moran, No. 06-0207/AF
impermissible testimony can be determinative in finding the
initial allowance of the testimony reversible error).3
In the present case, Appellant contends that the statements
made by the three witnesses improperly mentioned the invocation
of his constitutional rights and that the military judge
committed plain error when he did not sua sponte strike the
references and provide a corrective instruction to the members.
We address each statement in turn.
Special Agent TWB
On direct examination, Special Agent TWB of the base Office
of Special Investigations (OSI) was asked by trial counsel about
the investigatory interview he had with Appellant and the
agent’s request for a hair sample from Appellant.
[TC:] [Under] . . . what . . . authority were you
using to . . . get the body hair?
[TWB:] Initially we tried consent. And he didn’t
consent to . . . us . . . collecting [his] body hair.
Under the Fourth Amendment, Appellant had the right to deny the
special agent’s initial request. Appellant reasonably contends
that the reference to his refusal to consent may have led
members to infer his guilt, an impermissible inference
exacerbated later in the court-martial by trial counsel’s
3
Regarding relevant differences between military judge-alone
trials and courts-martial before members, see United States v.
Robbins, 52 M.J. 455, 457 (C.A.A.F. 2000) (military judges,
unlike lay members, are “presumed capable of filtering out
inadmissible evidence”).
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reference to the testimony. Indeed, in the past we have
expressed our concern as well by stating that “refus[ing] to
consent to a warrantless search is privileged conduct which
cannot be considered as evidence of criminal wrongdoing.”
Turner, 39 M.J. at 262.
However, the lower court concluded that the witness’s
statement was “reasonably necessary to describe [the] events”
about which the agent was testifying. Moran, 2005 CCA LEXIS
339, at *8, 2005 WL 2875128, at *3; see also United States v.
Ross, 7 M.J. 174, 175-76 (C.M.A. 1979) (noting, without comment,
that “testimonial res gestae,” could permit the admission of
statements “necessary to complete the chronological sequence of
[an] agent’s story”); United States v. Smith, 52 M.J. 337, 341
n.2 (C.A.A.F. 2000) (admitting otherwise disallowed testimony
was permitted because it was part of the “res gestae” of the
offense) (citing United States v. Jackson, 882 F.2d 1444, 1450
(9th Cir. 1989)). While Appellant claims that the introduction
of this evidence had “‘but one objective[:] to induce the jury
to infer guilt,’” the Government argues that Special Agent TWB’s
testimony was a rational response to the trial counsel’s
inquiry, explaining to the court why he was unable to obtain a
hair sample at the initial interview.
However, we need not ultimately resolve this issue. For we
conclude that, even if the admission of this statement was
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error, plain or otherwise, for the reasons stated in Section V,
it was harmless beyond a reasonable doubt.
Officer RF4
On direct examination Officer RF made two statements that
Appellant now challenges.
First, Officer RF was asked about the delay in obtaining a
hair sample from Appellant.
[TC:] Okay. Were you able to get the [hair]
collection when you wanted to . . . ?
[RF:] No, sir.
[TC:] Okay, what happened to mess that up?
[RF:] The day we obtained search authorization, we
contacted Airman Moran’s first sergeant, asked
him if he could please get him to our office so
we could collect the hair sample. He related
that he [Moran] was en route to Hattiesburg,
Mississippi, to see his civilian attorney. We
asked him, “Is there any way you can contact
him.” He said he could. And we asked him to
please tell him just to turn around and come
back. He allowed Airman Moran to continue to
see his -- see his attorney.
Appellant contends that the witness’s comments about
Appellant’s travel “to see his attorney” represented
impermissible references to his Sixth Amendment right to
4
At the time of trial, Officer RF was a member of the Gulfport
Police Department. He had previously been on active duty with
OSI during the investigation of the offenses involving
Appellant.
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counsel.5 Further, these improper comments were aggravated by
trial counsel’s subsequent reference to them during the findings
argument.
Second, Officer RF was asked about his failed attempt to
procure a hair sample from Appellant once Officer RF had been
authorized to demand the sample. Officer RF explained that
Appellant no longer “[had] enough hair on his body that [he]
could obtain a hair sample.” The military judge inquired
further:
MJ: What was Airman Moran’s explanation for shaving
all of his hair off? Did you ask him? Did he
give you one?
[RF:] No, sir, I didn’t.
MJ: You didn’t inquire?
[RF:] The reason I didn’t inquire was I felt that was
an incriminating question, and I would have to
advise him of his rights. He’d already asked
for counsel. I was just there to obtain a hair
sample due to the search authorization, and not
to ask him questions.
Appellant contends that this line of questioning
represented impermissible references to both his Fourth and
Sixth Amendment rights.
Here too, the Government argues, and the lower court
concluded, that Officer RF’s first statement represented a
logical, chronological recounting of events incident to the
5
Reference to the right to counsel at issue in the case was in
the context of the Fifth Amendment.
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attempted seizure of hair. Under this “res gestae” analysis, it
would have been unnatural for Officer RF not to mention why he
was unable to secure a hair sample immediately after receiving
authorization to demand one. Moreover, it does not appear that
the witness was stating Appellant’s whereabouts to provide the
court with evidence of guilt. Indeed, the testimony was not
that Officer RF knew that Appellant had gone to see his lawyer
but rather that Appellant’s first sergeant had told him that
Appellant had done so. In this regard, it is noteworthy that
this issue comes to us as an assertion of plain error. While
not determinative, the absence of a defense objection suggests
that defense counsel and the military judge heard this testimony
in the same manner as the lower court read it on review. See,
e.g., United States v. Nelson, 1 M.J. 235, 238 n.6 (C.M.A. 1975)
(citing United States v. Saint John, 23 C.M.A. 20, 48 C.M.R. 312(C.M.A. 1974); United States v. Ryan, 21 C.M.A. 9, 44 C.M.R. 63(C.M.A. 1971); United States v. Wood, 18 C.M.A. 291, 40 C.M.R. 3(C.M.A. 1969)).
The Government posits that Officer RF’s second statement
about both Appellant’s shaving and Officer RF’s knowledge of
Appellant’s prior assertion of his right to counsel was
similarly a reasonable response to the military judge’s
question. Officer RF accurately explained the otherwise curious
fact that although Appellant had enough hair nine days prior for
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United States v. Moran, No. 06-0207/AF
the agent to request a sample, once the agent received the
necessary authorization to demand a sample, he was unable to
secure any hair. Similarly, Officer RF’s knowledge of Appellant
having already secured a lawyer was not necessarily presented as
evidence of guilt by Officer RF, but rather was made in direct
response to the military judge’s inquiry as to the agent’s
omission of what seemed an obvious and necessary question:
asking the recently hirsute Appellant why he no longer had any
hair.
These statements are the most problematic of the witness
statements at issue. In particular, the military judge’s
questioning of Officer RF raises concern. On the one hand,
given what was already known to the court at the time of the
question -- that Appellant had asked for a lawyer and had
refused to provide a hair sample -- the military judge ought to
have been on notice that his question to the officer about why
he had not made further inquiry of Appellant would have been
likely to elicit a response referencing Appellant’s invocation
of rights. And, indeed, the question did in fact directly
elicit a response that improperly referenced Appellant’s
exercise of his constitutional protections. On the other hand,
Appellant did not object to the military judge’s inquiry, and
the lower court found that these statements fell within the res
gestae rubric as well. Finally, the witness was careful not to
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use the military judge’s question to suggest an improper
inference from Appellant’s actions.
As with the other witness statements, we need not and do
not ultimately decide whether the admission of Officer RF’s
statements was error, for we conclude in Section V that if the
admission of these statement was error of any type, it was
harmless beyond a reasonable doubt.
III. Implied Consent -– Testimony of Officer JF
Officer JF was the Gulfport policeman who investigated
Appellant’s off-base car accident. At the scene of the
accident, Officer JF detained Appellant under suspicion for
driving under the influence and escorted Appellant to a local
hospital for medical care. Officer JF testified regarding the
drunk driving charge and was asked on direct examination about
his attempts to secure a blood sample from Appellant to test for
intoxication.
[TC:] Okay. Now what happened when you got to the
hospital?
[JF:] I offered him a consent form [to draw his blood]
because the hospital requires some form of
written verification that he is giving the
samples, at which time he refused to sign it.
[TC:] Okay. What did you do then?
[JF:] I contacted Judge Richard Smith, advised him of
the circumstances over the telephone, was told
to come to his house, which I did. While at the
hospital, I filled out the search warrant with
his information. I then went to Judge Smith’s
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United States v. Moran, No. 06-0207/AF
house, affirmed to the affidavit. The warrant
was signed, and I returned back to the hospital.
[TC:] Okay. What happened when you got there?
[JF:] I made contact with the RN, and the blood draw
was administered.
On cross-examination, the defense counsel asked the witness
to provide more details about the events at the hospital.
[DC:] And how long were you in the emergency room with
him [Appellant] before you left to see Judge
Smith?
[JF:] Probably -- I couldn’t even give you a time. It
-- it was -- I was with him enough time to talk
to him, for him to tell me that he would refuse
the [blood] test.
Appellant contends that the testimony regarding his refusal
to consent to have his blood drawn implicated his Fourth
Amendment right to be free from warrantless searches and
seizures. Under Mississippi law, in the case of a driver who
refuses to consent to have his blood drawn, “evidence of [his]
refusal shall be admissible in any criminal action . . . .”
Miss. Code Ann. § 63-11-41 (1972). The United States Supreme
Court has upheld the doctrine of implied consent, which as a
general matter is recognized in military case law as well. See
South Dakota v. Neville, 459 U.S. 553, 566 (1983) (upholding a
state statute allowing evidence of refusal to submit to a blood
alcohol test as admissible at trial to show evidence of driving
under the influence; consent for the test was implied by the
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United States v. Moran, No. 06-0207/AF
accused’s entry onto the state’s motorways); Ricks v. State, 611
So. 2d 212, 216 (Miss. 1992) (upholding the Mississippi implied
consent statute). Regarding military references to implied
consent compare United States v. Armstrong, 9 M.J. 374, 383
(C.M.A. 1980) (stating that “any applicable requirements of . .
. ‘implied consent’ . . . were met”) with United States v. Pond,
36 M.J. 1050, 1057 (A.F.C.M.R. 1993) (holding that the use of an
appellant’s initial refusal to undergo a urine test was
improper, notwithstanding the state’s implied consent law,
because “the California deputy did not follow the terms of the
California implied consent statute”).
Nonetheless, here too we decline to reach the ultimate
question presented. In spite of having invited further briefs
on the issue of implied consent we are left with only a passing
reference to the doctrine in a somewhat dated opinion of this
Court. Missing from Armstrong is a thorough discussion of
several important questions such as the current propriety of
applying a state implied consent statute to the military or the
applicability of the federal implied consent statute, 18 U.S.C.
3118 (2000).6 This is an important issue which may in the future
prove case determinative.
6
This statute allows for the prosecutorial use of a defendant’s
refusal to consent to a chemical test “in any case arising” from
the incident. 18 U.S.C. § 3118(b).
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Although we could pursue further development of this issue,
principles of judicial economy and justice argue for resolving
this case at this time if we can in order to negate further
appellate delay. As a result, for the purpose of this case
alone we will assume without deciding that the admission of
Officer JF’s statement was error of constitutional dimension.
Thus, we consider whether the assumed error was harmless beyond
a reasonable doubt. Alameda, 57 M.J. at 199.
On the one hand, the members may have inferred from
Appellant’s exercise of his constitutional rights that he had a
guilty conscience. Appellant was aware he was inebriated and
the members might well infer that he had no reason to decline
consent to draw blood absent innate knowledge that he would test
over the legal limit. On the other hand, the evidence against
Appellant was otherwise overwhelming. A badly damaged vehicle
registered in Appellant’s name was discovered at the accident
scene. Appellant was observed at the scene of the accident two
feet from the driver’s door, suffering injuries to his legs,
having trouble getting to his feet, and acting in an inebriated
manner. Finally, Appellant’s blood was lawfully drawn as a
result of the warrant obtained from Judge Smith, which indicated
a blood alcohol level of .25 percent ethanol. Based on this
evidence we are persuaded that if there was error in admitting
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United States v. Moran, No. 06-0207/AF
officer JF’s statement, it was harmless beyond a reasonable
doubt.
IV. Trial Counsel’s Comment
In the closing part of his findings argument to the
members, trial counsel turned his attention to evidence in
support of the allegations of drug use and distribution. He
stated the following:
[TC:] Now these drug charges. What’s probably
certainly close to the some of the most damning
evidence that you have in this courtroom today
is the fact that on March 20th he is called into
[the] investigations [office] . . . . The OSI
says, “We would like to take your hair.” He
says, “No, thank you. I want to speak to my
attorney first.”
Emphasis added.
This statement was error, and the error was obvious. Trial
counsel’s argument was improper because it was an inaccurate
characterization of the testimony presented, and it improperly
referenced Appellant’s exercise of a constitutional right and
suggested, intentionally or not, that the members infer guilt
from the invocation of that right.
This Court has held that “‘it is improper for a prosecutor
to ask the court members to infer guilt because an accused has
exercised his constitutional rights.’” United States v. Gilley,
56 M.J. 113, 123 (C.A.A.F. 2001) (quoting United States v.
Carpenter, 51 M.J. 393, 396 (C.A.A.F. 1999)). An argument by
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trial counsel “which comments upon an accused’s exercise of his
or her constitutionally protected rights is ‘beyond the bounds
of fair comment.’” United States v. Edwards, 35 M.J. 351, 355
(C.M.A. 1992) (finding that it is improper for counsel to
comment on accused’s refusal to plead guilty) (citation
omitted); see also United States v. Toro, 37 M.J. 313, 318
(C.M.A. 1993) (finding that it is improper for trial counsel to
comment on an accused’s exercise of his right to remain silent);
United States v. Clifton, 15 M.J. 26, 29 (C.M.A. 1983) (finding
that it is improper for trial counsel to argue that the fact
that the accused “asserted his rights” and “fought this every
inch of the way” was indicative of his guilt).
A trial counsel’s statement implicating an accused’s
assertion of his rights is not per se impermissible. See United
States v. Moore, 917 F.2d 215, 225 (6th Cir. 1990); United
States v. Milstead, 671 F.2d 950 (5th Cir. 1982). In context,
it may appropriately be made in rebuttal. See, e.g., Edwards,
35 M.J. at 355. Additionally, if a statement “was an isolated
reference to a singular invocation of rights” it may be harmless
in the context of the entire record. United States v. Sidwell,
51 M.J. 262, 265 (C.A.A.F. 1999) (citing United States v.
Garrett, 24 M.J. 413, 416-17 (C.M.A. 1987)). As a result, this
Court examines prosecutorial comment “within the context of the
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United States v. Moran, No. 06-0207/AF
entire court-martial.” United States v. Baer, 53 M.J. 235, 238
(C.A.A.F. 2000).
Turning to the statement in question, the first problem is
that it is not a correct restatement of the evidence. There is
no evidence that, upon being initially asked to surrender a hair
sample, Appellant invoked his Fifth Amendment right to counsel
as trial counsel had suggested. Special Agent TWB testified:
“Initially we tried consent. And he didn’t consent to the -- us
taking -- using -- collecting body hair.”
The second problem is that read in its most natural light,
trial counsel’s statement about Appellant’s request for counsel
was not simply hortatory. Rather, it appears demonstrably
designed to exploit Appellant’s rights invocation, directly
linking Appellant’s reliance on his rights with his likely
guilt.
As such, this statement was “‘beyond the bounds of fair
comment,’” Edwards, 35 M.J. at 355 (citation omitted), and the
military judge erred in allowing it without a curative
instruction. By arguing that the accused’s invocation of his
right to counsel was substantive evidence of his guilt, the
statement violated Appellant’s Fifth Amendment rights, M.R.E.
301(f)(3), and Rule for Courts-Martial (R.C.M.) 919, which sets
forth the permissible content of trial counsel’s argument on
21
United States v. Moran, No. 06-0207/AF
findings.7 In our system of justice, the exercise of the right
to counsel is proof of neither guilt nor innocence.
V. Prejudice
Having concluded that the trial counsel erred during his
closing argument, we must now determine whether the error
materially prejudiced Appellant’s substantial rights with
respect to Appellant’s convictions for using and distributing
drugs. We do so cognizant that the error in closing argument
occurred in the context of certain witnesses’ statements, which
we, in turn, assume without deciding might have been erroneously
admitted. Thus, we must assess the prejudicial impact of these
assumed errors as well. In addition, we assume in the context
of the drunk driving offense that Appellant’s refusal to consent
to the seizure of his blood should not have been presented to
the members, but we have already concluded above that any error
there was harmless beyond a reasonable doubt.
“[B]efore a federal constitutional error can be held
harmless, the court must be able to declare a belief that it was
harmless beyond a reasonable doubt.” Chapman v. California, 386
U.S. 18, 24 (1967). This will depend on “‘whether there is a
7
In its Discussion, R.C.M. 919 states that “[t]rial counsel may
not comment on the accused’s exercise of the right against self-
incrimination or the right to counsel.” This Court has noted
that “Although not binding, the Discussion reflects applicable
judicial precedent.” United States v. Carter, 61 M.J. 30, 33
(C.A.A.F. 2005).
22
United States v. Moran, No. 06-0207/AF
reasonable possibility that the evidence [or error] complained
of might have contributed to the conviction.’” Id. (citation
omitted). “To say that an error did not ‘contribute’ to the
ensuing verdict is not, of course, to say that the jury was
totally unaware of that feature of the trial later held to have
been erroneous.” Yates v. Evatt, 500 U.S. 391, 403 (1991),
overruled on other grounds by Estelle v. McGuire, 502 U.S. 62,
72 n.4 (1991). It is, rather, “to find that error unimportant
in relation to everything else the jury considered on the issue
in question, as revealed in the record.” Id. For the reasons
stated below, we conclude that trial counsel’s comments during
argument and any of the other assumed errors were harmless
beyond a reasonable doubt.
First, we conclude that the prejudicial impact of trial
counsel’s comments was dampened by the minor part they played in
the midst of a nineteen-page argument. We are cognizant that
comments by trial counsel -- read apart from a much longer
argument and without the context of the trial setting -- might
appear more egregious when examined on appellate review than
they actually were when made during the trial.
Second, other evidence supporting the drug convictions that
was properly admitted was sufficient to dispel any notion that
the contested witness statements and trial counsel’s comments
23
United States v. Moran, No. 06-0207/AF
“tipped the balance” against Appellant. Compare United States
v. Berry, 61 M.J. 91, 98 (C.A.A.F. 2005).
Appellant’s convictions of the drug offenses were supported
by evidence provided by six witnesses who testified against him.
Five of theses witnesses presented evidence of his ecstasy use,
four of them testified regarding his LSD use, and four testified
regarding his cocaine use.
Appellant argues that the value of this testimony is
suspect as the witnesses were “dirty.” These witnesses had been
involved with drugs and had either been court-martialed or were
awaiting trial when they appeared. Further, at least two of the
witnesses were testifying under requirements imposed by their
plea agreements and at least one was granted testimonial
immunity for his testimony against Appellant. While the
witnesses’ criminal pasts and the circumstances under which they
testified may have affected their credibility, it is axiomatic
that credibility determinations are within the province of the
members. The very reason that witnesses are cross-examined is
“to test their assertions for accuracy, bias, conflict of
interest, or other reasons to discount or disbelieve their
testimony.” Rockwood, 52 M.J. at 103.
Further, we note that the circumstances under which the
witnesses appeared were not obscured from the members. Defense
counsel’s cross-examination brought to light the criminal
24
United States v. Moran, No. 06-0207/AF
history of the witnesses, the particulars of the agreements each
had struck with the Government prior to appearing, and
competently attacked their credibility generally. Moreover,
each witness testified regarding a different use of drugs by
Appellant. In assessing the credibility of these witnesses, the
members would have to assess not just the possibility that six
witnesses might finger Appellant to improve their situations,
but that six witnesses would independently decide to do so by
describing six different instances of drug use.
Third, there is substantial, and arguably novel,
circumstantial evidence regarding Appellant’s consciousness of
guilt that was properly before the members, namely evidence that
Appellant shaved his body hair –- all of his body hair -– which
prevented the Government from testing his hair for drug use. In
particular, the evidence demonstrates that at some point after
learning that investigators wished to procure a hair sample from
him to test for the drug use alleged under Charge III, Appellant
shaved off all of his hair. An inference of guilt stemming from
Appellant’s shaving was permissible under the “consciousness of
guilt” doctrine. There exists longstanding precedent that,
while such behavior may not give rise to a presumption of guilt,
it nonetheless can, within certain constraints, be entered into
evidence and commented upon. See, e.g., United States v. Cook,
48 M.J. 64, 66 (C.A.A.F. 1998); United States v. Johnson, 6
25
United States v. Moran, No. 06-0207/AF
C.M.A. 20, 24, 19 C.M.R. 146, 150 (1955); United States v.
Buchana, 19 C.M.A. 394, 397, 41 C.M.R. 394, 397 (1970) (evidence
of “consciousness of guilt” -- such as an accused’s flight from
the scene of a crime -- is admissible).
Moreover, the effect of Appellant shaving his body in this
case was essentially the destruction of evidence. That “an
inference of consciousness of guilt can be drawn from the
destruction of evidence is well-recognized in the law.”
Haemonetics Corp. v. Dupre, 238 B.R. 224, 228 n.10 (D. Mass.
1999); see also Sullivan v. General Motors Corp., 772 F. Supp.
358, 360 (N.D. Ohio 1991) (citing State v. Strub, 355 N.E. 2d
819, 825 (Ohio Ct. App. 1975)); United States v. Howard, 228 F.
Supp. 939, 942 (D. Neb. 1964).
Based on the foregoing, we are “convinced that independent
evidence of [A]ppellant’s guilt was overwhelming,” a conclusion
that renders any errors, assumed or otherwise, harmless beyond a
reasonable doubt.
DECISION
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
26
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EFFRON, Chief Judge (concurring in part and in the result):
I concur in the majority opinion except for that portion of
Section III that discusses implied consent. See United States
v. Moran, 65 M.J. ___ (3) (C.A.A.F. 2007) (Erdmann, J.,
concurring in the result).
United States v. Moran, No. 06-0207/AF
ERDMANN, Judge (concurring in the result):
I agree with the ultimate resolution in this case:
assuming that the references by witnesses and trial counsel to
Moran’s invocation of his constitutional rights were plain
error, any such errors were harmless beyond a reasonable doubt.
I write separately, however, as I do not join in those portions
of the majority opinion that address issues not necessary to
reach that result.
Despite the “if error, harmless” resolution, the majority
suggests that the admission of statements about Moran’s
invocation of rights may have been admissible. I certainly
recognize that in some cases, testimony about a defendant’s
invocation of rights may be admissible. However, routine
disclosure of the fact that an accused has asserted his
constitutional rights should not be sanctioned under the guise
of setting forth a chronology of events or merely to establish
the “res gestae” of an offense. The rules dealing with
admissibility of assertions of constitutional rights are rules
of prohibition. See, e.g., Military Rule of Evidence (M.R.E.)
301(f)(1); United States v. Gilley, 56 M.J. 113, 120 (C.A.A.F.
2001) (assertion of Fifth Amendment rights generally
inadmissible); United States v. Turner, 39 M.J. 259, 262 (C.M.A.
1994) (refusal to consent may not be considered as evidence of
United States v. Moran, No. 06-0207/AF
criminal conduct). Exceptions to these rules of prohibition are
carved out of unique circumstances not present in this case.
In this case, any relevance that might be ascribed to
Moran’s assertions of rights is substantially outweighed by the
risk that the members, without guiding instruction from the
military judge, would use that evidence to improperly infer
guilt or consciousness of guilt.
It is the well-settled law of this Court that it is
improper to bring to the attention of the triers of
fact that an accused, upon being questioned on an
occasion prior to trial, asserted his rights to
counsel or to remain silent. . . . This principle is
founded upon the open-eyed realization that to many,
even to those who ought know better, the invocation by
a suspect of his constitutional and statutory rights
to silence and to counsel equates to a conclusion of
guilt -- that a truly innocent accused has nothing to
hide behind assertion of these privileges.
United States v. Riley, 47 M.J. 276, 279 (C.A.A.F. 1997)
(quoting United States v. Moore, 1 M.J. 390, 391 (C.M.A. 1976));
see also M.R.E. 403 (excluding relevant evidence where
“probative value is substantially outweighed by the danger of
unfair prejudice”).
The record of trial presents nothing suggesting that
evidence relating to Moran’s refusal to consent to giving a hair
sample or evidence reflecting that Officer RF did not ask why
Moran shaved his body because Moran had previously asserted his
right to counsel were critical components of the Government’s
case or even necessary to give context to other evidence. Given
2
United States v. Moran, No. 06-0207/AF
the ultimate resolution of this case, speculation as to why
these references to Moran’s assertions of rights may have been
admissible is simply not necessary. I therefore do not join
that portion of the majority opinion that discusses alternative
theories of admissibility.
For similar reasons I do not join that portion of the
majority opinion discussing implied consent or the admissibility
of refusal to consent to blood extraction under state implied
consent laws. This case does not deal with implied consent:
Officer JF testified that once at the hospital he “offered
[Moran] a consent form [for the blood test] because the hospital
requires some form of written verification that he is giving the
samples, at which time he refused to sign it.” There was no
testimony or evidence relating to any Mississippi requirement
for consent under state law. In addition, the Military Rules of
Evidence have no exception for admitting refusal to consent
under state implied consent laws. Thus, Miss. Code Ann. § 63-
11-41 (1972) is not relevant to this case. Again, I decline to
join in the speculation as to what circumstances, not present in
this case, might support admissibility of Moran’s refusal to
sign a consent form.
I concur in the result.
3