United States v. Shelton , 64 M.J. 32 ( 2006 )

UNITED STATES, Appellee
v.
Justin S. SHELTON, Sergeant
U.S. Army, Appellant
No. 04-0359
Crim. App. No. 9901201
United States Court of Appeals for the Armed Forces
Argued March 15, 2005
Decided September 22, 2006
GIERKE, C.J., delivered the opinion of the Court, in which
EFFRON, BAKER, and ERDMANN, JJ., joined. CRAWFORD, J., filed a
dissenting opinion.
Counsel
For Appellant: Captain Danyele M. Jordan (argued); Colonel
Robert D. Teetsel, Colonel Mark Cremin, Lieutenant Colonel Mark
Tellitocci, and Major Sean S. Park (on brief).
For Appellee: Captain Abraham F. Carpio (argued); Colonel
Steven T. Salata, and Lieutenant Colonel Mark L. Johnson (on
brief); Captain Janine P. Felsman.
Military Judge: Stephen V. Saynisch
This opinion is subject to revision before final publication.
United States v. Shelton, No. 04-0359/AR
Chief Judge GIERKE delivered the opinion of the Court.
In the military justice system, the clergy privilege is
“[o]ne of the most sacred privileges.”1 This privilege
“‘recognizes the human need to disclose to a spiritual
counselor, in total and absolute confidence, what are believed
to be flawed acts or thoughts and to receive priestly
consolation and guidance in return.’”2 Military Rule of Evidence
(M.R.E.) 503 allows a person to prevent disclosure of a
qualified confidential communication to a member of the clergy.
Specifically, the clergy privilege allows an accused “to prevent
another from disclosing a confidential communication by the
[accused] to a clergyman or to a clergyman’s assistant, if such
communication is made either as a formal act of religion or as a
matter of conscience.”3
Appellant asserts that the military judge erred by denying
the defense motion to suppress the evidence arising from
Appellant’s communications with his pastor, Reverend (Rev.)
Ronnie Dennis, because these communications were within the
clergy privilege. For the reasons explained below, we agree
1
United States v. Benner, 57 M.J. 210, 212 (C.A.A.F. 2002).
See, e.g., United States v. Isham, 48 M.J. 603, 606-07 (N-M. Ct.
Crim. App. 1998) (discussing the importance of the clergy
privilege to clergy keeping the trust of servicemembers and
carrying out their mission of providing spiritual and moral
guidance).
2
Benner, 57 M.J. at 212 (quoting Trammel v. United States, 445
U.S. 40, 51 (1980)).
3
M.R.E. 503(a).
2
United States v. Shelton, No. 04-0359/AR
with Appellant that his communications to Rev. Dennis were
privileged and that Appellant should have been able to prevent
disclosure of them.
We evaluate the impact of this error in the context of
Appellant’s conditional guilty plea, entered pursuant to Rule
for Courts-Martial (R.C.M.) 910(a)(2). Consistent with this
rule, the pretrial agreement establishes that Appellant reserved
the right to withdraw his guilty plea if he prevailed on appeal
in asserting that the military judge erred in denying the
defense motion to suppress. As we conclude that the military
judge erred and Appellant has prevailed on appeal on the clergy
privilege issue, we afford Appellant the right to withdraw his
guilty plea.4
4
This Court granted review on Issue I and specified Issue II as
follows:
I. WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS
ERRED IN UPHOLDING THE RULING OF THE MILITARY JUDGE THAT
DENIED THE DEFENSE MOTION TO SUPPRESS ANY EVIDENCE
OBTAINED AS A RESULT OF COMMUNICATIONS BETWEEN APPELLANT
AND HIS PASTOR.
II. WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS
APPLIED THE CORRECT APPELLATE TEST FOR DETERMINING
MATERIALITY WITH RESPECT TO THE ERRONEOUS NONDISCLOSURE
OF DISCOVERABLE EVIDENCE. SEE UNITED STATES V. ROBERTS,
59 M.J. 323 (C.A.A.F. 2004).
United States v. Shelton, 60 M.J. 314 (C.A.A.F. 2004). Because
we rule for Appellant on Issue I, we need not reach Issue II.
We heard oral argument in this case at the Marine Corps
Base, Quantico, Virginia, as part of the Court’s “Project
3
United States v. Shelton, No. 04-0359/AR
BACKGROUND5
Over a period of several months, the four-year-old
stepdaughter of Appellant made ambiguous statements and
exhibited unusual behavior that raised concerns in Appellant’s
wife about Appellant’s possible improper sexual activity with
her daughter. On June 6, 1999, the child told her mother of
specific sexual contact with Appellant resulting from Appellant
instructing her to kiss him in the groin area. Appellant’s wife
questioned Appellant about his interaction with his
stepdaughter. Appellant denied any impropriety.
But Appellant’s wife remained concerned, and she called
their family pastor, Rev. Dennis, to discuss her suspicions that
Outreach.” See United States v. Mahoney, 58 M.J. 346, 347 n.1
(C.A.A.F. 2003). This practice was developed as part of a
public awareness program to demonstrate the operation of a
Federal Court of Appeals and the military justice system.
5
The lower court opinion presents the background of this case:
A military judge sitting as a general court-martial
convicted appellant, pursuant to his guilty plea, of
indecent acts upon a female under sixteen years of age
(three specifications), in violation of Article 134,
Uniform Code of Military Justice, 10 U.S.C. § 934[hereinafter UCMJ]. The military judge sentenced appellant
to a dishonorable discharge, confinement for three years,
forfeiture of all pay and allowances, and reduction to
Private E-1. The convening authority waived automatic
forfeitures required by Article 58b, UCMJ, for six months
and directed payment to appellant’s spouse. After the six-
month waiver of forfeitures had elapsed, the convening
authority approved the sentence as adjudged.
United States v. Shelton, 59 M.J. 727, 728 (A.F. Ct. Crim. App.
2004). The lower court affirmed the findings and the sentence.
Id. at 736.
4
United States v. Shelton, No. 04-0359/AR
Appellant may have sexually abused his stepdaughter. Rev.
Dennis was a civilian, ordained Protestant minister, and head
minister at the New Testament Christian Church. Appellant and
his wife had been attending this church for approximately two
years, but they had known Rev. Dennis since 1993. They had met
Rev. Dennis during a previous assignment, and he had provided
counseling and assistance on a variety of subjects, including
family finances, budgeting, and other personal family matters.
Rev. Dennis agreed to meet with Appellant to discuss this
serious allegation of sexual abuse. As a result, Appellant’s
wife told him to go to the pastor’s office at their church the
following evening to speak to Rev. Dennis.
When Appellant arrived at the church office for his
appointment, another pastor, Rev. Virgo, was waiting with Rev.
Dennis. In a private conference, Appellant met with both
pastors, but Rev. Dennis exclusively controlled the counseling
session. Rev. Virgo was present because it was the church
custom to have another person present during this type of
counseling. Appellant’s contact with the two pastors began with
one of them saying a brief prayer asking for God’s wisdom and
guidance in counseling before the session began.
Rev. Dennis testified that he then said to Appellant, “Your
wife told me something and I want to know if you did it because
it’s serious and you can go to jail for it . . . .” Rev. Dennis
5
United States v. Shelton, No. 04-0359/AR
also told Appellant, “You claim to be a Christian, Christians
don’t tell lies, so I need to know.” Appellant claims that Rev.
Dennis told him to tell the truth because God would judge him
for lying but would have mercy on him if he told the truth.
Despite these different versions of what Rev. Dennis said, there
is no disagreement that Appellant confessed to sexual abuse.
But the record does not reveal the specifics of Appellant’s
admission of child sexual abuse. Rev. Dennis recalled Appellant
lamenting, “I believe it’s too late. I don’t think God can help
me any longer.” Rev. Dennis consoled Appellant by assuring him,
“God can help you with this.”
After Appellant regained his composure, Rev. Dennis asked
Appellant to get his wife and bring her to join them. Rev.
Dennis assured him that there was still hope to work through
this crisis but that Appellant needed to start by telling the
truth. Appellant went to his house and immediately drove his
wife to the church office.
There Appellant and his wife joined Rev. Dennis and Rev.
Virgo. Appellant claimed that he sat silently while Rev. Dennis
told Appellant’s wife that Appellant had done as she suspected.
But Rev. Dennis did not say expressly that Appellant had
molested his stepdaughter or give any details. Rev. Dennis
testified that Appellant told his wife, “I did it. I did it.
I’m wrong. I did it.”
6
United States v. Shelton, No. 04-0359/AR
At the conclusion of the consultation, Rev. Dennis told
Appellant and his wife that the laws of Washington state
required that he report the child sexual abuse. It does not
appear in the record that Rev. Dennis ever made this report.6
A couple of weeks after Appellant’s counseling session with
Rev. Dennis, Appellant’s wife saw Rev. Dennis at church. Rev.
Dennis told her that she should report the child sexual abuse
and that he would report it if she did not. Eventually,
Appellant’s wife contacted Ms. Sandi Doyle, a social worker, and
told Ms. Doyle about her daughter’s accusations. Investigation
into this case continued with involvement of the Criminal
Investigation Division (CID). Appellant complied with an order
to report to the CID office. After being properly advised of
his rights, Appellant told an investigator essentially the same
thing he had told Rev. Dennis -- that he had inappropriate
contact with his stepdaughter. But CID’s contact with Rev.
Dennis was initially futile as Rev. Dennis refused to speak to
Ms. Doyle or CID without the express written consent of
Appellant or his wife. Rev. Dennis never provided a pretrial
statement to CID. As the investigation continued, Appellant
6
Even if Appellant’s communications to Rev. Dennis were
confidential under Washington state law and he could not testify
as to the contents of Appellant’s statements in court, Rev.
Dennis was not prohibited from voluntarily reporting Appellant’s
admissions to protect an abused child. State v. Glen, 62 P.3d
921, 928 n.7 (Wash. Ct. App. 2003).
7
United States v. Shelton, No. 04-0359/AR
made incriminating statements to Ms. Doyle and later to a
psychotherapist, Mr. Michael Comte. In the latter statement,
Appellant presented a detailed explanation of his sexual
interest in his stepdaughter. The investigation eventually
resulted in Appellant being charged with three specifications of
indecent acts upon his minor stepdaughter.
Prior to the commencement of the court-martial, Appellant
negotiated a pretrial agreement in which he agreed to
conditionally plead guilty to all three offenses. The term of
the pretrial agreement most relevant to this appeal permitted
Appellant to attempt to exclude from the court-martial any
evidence relating to Appellant’s conversation with his pastors
and to preserve this issue for appellate review. It provided in
part:
[2]b. I understand that this is a conditional guilty
plea under R.C.M. 910(a)(2), and that I reserve the
right to appeal any adverse determinations made by the
military judge of any of the pretrial motions made at
my court-martial. I understand that if I prevail on
further review or appeal, I shall be allowed to
withdraw my pleas of guilty.
When the court-martial began, Appellant took action to
preserve issues for appellate review and attempted to avail
himself of this term in the pretrial agreement. Trial defense
8
United States v. Shelton, No. 04-0359/AR
counsel made pretrial motions7 including a motion to suppress
evidence resulting from his confidential communication to Rev.
Dennis.
After an evidentiary hearing where Appellant and Rev.
Dennis presented conflicting testimony regarding the nature and
substance of the conference at the church, the military judge
denied the defense motion and explained his ruling on the
record. Almost nine months later, on September 5, 2000, the day
he authenticated the record of trial, the military judge made
his formal written ruling on the motion to suppress.
In both the record of his oral explanation and the later
written ruling, the military judge stated that he chose to
believe Rev. Dennis’s recollection of events rather than
Appellant’s. It is the testimony of Rev. Dennis that is the
primary basis for the military judge’s finding of historical
facts. Reflecting the testimony of Rev. Dennis, the military
judge’s historical findings of fact detailed the religious
context in which Appellant made his statements. This included
the following: Appellant made the statements to his pastor, the
counseling session began with prayer, and “[t]his church was a
focal point in the Sheltons[’] social, spiritual, and community
lives.”
7
The defense also made a motion to compel discovery of documents
removed from the CID file. That motion related to Issue II,
which we do not address at this time.
9
United States v. Shelton, No. 04-0359/AR
In his conclusions, the military judge made four distinct
points: (1) that Appellant did not speak to Rev. Dennis in his
capacity as a clergyman or spiritual advisor; (2) that Appellant
did not intend his statement to Rev. Dennis be confidential; (3)
that Appellant did not make his statements as a matter of
conscience; and (4) that Appellant did not make his statements
as a formal act of religion.
After losing his pretrial motions, Appellant pled guilty
under the provisions of the pretrial agreement. During the Care
inquiry,8 the military judge reviewed the terms of the pretrial
agreement with Appellant and specifically addressed Appellant’s
conditional guilty plea. The military judge offered the
following illustration of the effect of the conditional guilty
plea provision:
So let’s say that the appellate court says that I’m
all wrong about this privilege business, the motion,
in other words, that we discussed yesterday, and they
say that I am wrong and it should be reversed, then by
the terms of this paragraph 2a -- 2b, I should say,
when you’ve got -- or I get that notice, if it ever
comes, then you can say hey, I changed my mind, I want
to plead [not] guilty and withdraw your plea of
guilty.
Satisfied that Appellant’s plea was provident, the military
judge accepted Appellant’s guilty plea, found him guilty of all
offenses, and later sentenced Appellant for his offenses.
8
The military judge conducted the providence inquiry required by
United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969).
10
United States v. Shelton, No. 04-0359/AR
DISCUSSION
1. Applicability of the clergy privilege
Appellant claims that he confided in Rev. Dennis, his
spiritual advisor, searching for help and solace for his abusive
behavior of his stepdaughter. He alleges that the military
judge erred by admitting testimony related to his disclosures to
Rev. Dennis in violation of the clergy privilege of M.R.E. 503.
Since Appellant is attempting to claim the clergy privilege, he
has the burden of establishing that his conversation was
privileged under M.R.E. 503.9
In the military justice system, the clergy privilege has
been recognized since at least 1949.10 But the present privilege
in M.R.E. 503 was adopted in 1980 in conjunction with the
President’s issuance of the Military Rules of Evidence.11
This Court has recognized the importance of the clergy
privilege stating, “Military law is not insensitive to the needs
of servicemembers for [clergy] and spiritual guidance, and it
9
See United States v. Napoleon, 46 M.J. 279, 285 (C.A.A.F.
1997); R.C.M. 905(c).
10
See Manual for Courts-Martial, United States para. 151(b)(2)
(1969 rev. ed.) (MCM); MCM para. 151(b)(2) (1951 ed.); Manual
for Courts-Martial, U.S. Army para. 137b (1949 ed.). Earlier
manuals were silent as to the clergy privilege. See United
States v. Coleman, 26 M.J. 407, 409 n.3 (C.M.A. 1988).
11
See Manual for Courts-Martial, United States, Analysis of the
Military Rules of Evidence app. 22 at A22-39 (2005 ed.)
[hereinafter M.R.E. Drafters’ Analysis].
11
United States v. Shelton, No. 04-0359/AR
has long recognized the ‘penitent and clergyman’ privilege.”12
The privilege reflects respect for the traditional confidential
nature of relations between clergy and servicemembers.13
M.R.E. 503(a) expressly recognizes a clergy privilege and
provides: “A person has a privilege to refuse to disclose and
to prevent another from disclosing a confidential communication
by the person to a clergyman or to a clergyman’s assistant, if
such communication is made either as a formal act of religion or
as a matter of conscience.”14 M.R.E. 503(c) broadly extends the
privilege to allow either the communicant or the clergy member
to claim the privilege.15
12
Coleman, 26 M.J. at 409.
13
See United States v. Henderson, 11 C.M.A. 556, 564, 29 C.M.R.
372, 379-80 (1960) (explaining a chaplain’s reason for refusing
to disclose a communication with a servicemember). See
generally Isham, 48 M.J. at 605 (discussing the ethical duty of
chaplains to hold in confidence privileged communications).
14
“Furthermore, this privilege is recognized in paragraph 4-4 of
Army Regulation 165-1, Chaplain Activities in the United States
Army (26 May 2000) (superseding 27 Feb. 1998), and paragraph 3-8
of Army Regulation 608-18, The Family Advocacy Program (1
September 1995).” Benner, 57 M.J. at 212.
15
This is not the only privilege available for a servicemember
to obtain confidential counseling. In M.R.E. 513 the President
adopted a psychotherapist-patient privilege for the military
justice system. “The rule allows a patient the privilege to
refuse to disclose, or allow another to disclose, a confidential
communication between the patient and a psychotherapist.”
United States v. Clark, 62 M.J. 195, 199 (C.A.A.F. 2005). This
rule is “‘based on the social benefit of confidential counseling
recognized by Jaffee [v. Redmond, 518 U.S. 1 (1996)], and
similar to the clergy-penitent privilege.’” Id. (quoting M.R.E.
Drafters’ Analysis app. 22 at A22-44 (2000 ed.)).
12
United States v. Shelton, No. 04-0359/AR
This Court has addressed the evidentiary foundation of this
privilege in a variety of cases.16 M.R.E. 503 has three
components pertinent to the present case: (1) the communication
must be made either as a formal act of religion or as a matter
of conscience; (2) it must be made to a clergyman in his
capacity as a spiritual advisor or to his assistant in his
official capacity; and (3) the communication must be intended to
be confidential. We must evaluate whether Appellant has
established these three criteria necessary to claim the
privilege.
The focus of our analysis is the ruling of the military
judge. When reviewing a decision of a Court of Criminal Appeals
on a military judge’s ruling, “we typically have pierced through
that intermediate level” and examined the military judge’s
ruling, then decided whether the Court of Criminal Appeals was
right or wrong in its examination of the military judge’s
ruling.17
We review a military judge’s decision to admit evidence for
an abuse of discretion.18 Whether a communication is privileged
16
See, e.g., Napoleon, 46 M.J. at 283-85; Coleman, 26 M.J. at
409-10.
17
See United States v. Siroky, 44 M.J. 394, 399 (C.A.A.F. 1996).
18
United States v. McCollum, 58 M.J. 323, 335 (C.A.A.F. 2003)
(citing United States v. McElhaney, 54 M.J. 120, 132 (C.A.A.F.
2000)).
13
United States v. Shelton, No. 04-0359/AR
is a mixed question of fact and law.19 We will give the military
judge’s findings of fact deference, reversing such findings only
if they are clearly erroneous, while we review the legal
conclusions de novo.20
Although the clergy privilege, like all privileges must be
strictly construed,21 it is legal error when the privilege is
misconstrued.22 Applying the three criteria of M.R.E. 503, we
conclude that the military judge erred as a matter of law in
concluding that Appellant’s communication with Rev. Dennis was
not a matter of conscience.
Our application of the law to the facts of this case begins
with the threshold for claiming the privilege, that is, whether
Appellant confided in Rev. Dennis “either as a formal act of
religion or as a matter of conscience.”23 For purpose of our
analysis, we will assume that Appellant did not confess “as a
formal act of religion.” But this concept is distinguishable
from whether Appellant confessed as “a matter of conscience.”24
An “act of religion” must comply with the particular tenets of a
19
Id. at 335-36.
20
Id. at 336 (citing United States v. Ayala, 43 M.J. 296, 298
(C.A.A.F. 1995)).
21
Trammel, 445 U.S. at 50.
22
See Napoleon, 46 M.J. at 284-85.
23
M.R.E. 503(a) (emphasis added).
24
See generally Isham, 48 M.J. at 605-06 (holding that the
appellant’s discussion with the chaplain concerned a matter of
conscience); United States v. Richards, 17 M.J. 1016, 1019-20
(N.M.C.M.R. 1984) (finding an appellant’s admissions involved a
“matter of conscience”).
14
United States v. Shelton, No. 04-0359/AR
faith, but a “matter of conscience” is privately held within a
person.
The military judge erred by not focusing on the religious
context under which Appellant’s statements were made. Most
importantly, Rev. Dennis used the authority of his religion to
induce Appellant to confess. Rev. Dennis testified about the
religious atmosphere surrounding their conversations. Rev.
Dennis testified that he began the counseling session with a
prayer to ask for God’s guidance. Rev. Dennis admitted that he
told Appellant, “You claim to be a Christian, Christians don’t
tell lies. . . .” Also, at the end of their meeting before
Appellant’s wife joined them, Rev. Dennis told Appellant that
“God can help you with this.” Rev. Dennis testified that
“[Appellant’s] attitude has always been one that has accepted
his guilt and what he has done and [he was] really crying out
for help.” Rev. Dennis further explained that he was trying to
give Appellant “some kind of avenue of hope as a pastor in
counseling so that he would not hurt himself.”
These facts establish the religious context under which
Appellant made his statements to Rev. Dennis. These
circumstances burdened Appellant’s conscience, and following the
advice of his pastor, Rev. Dennis, Appellant confessed. We note
that the past secular discussion between Appellant and Rev.
Dennis related to financing, budgeting, and family matters. But
15
United States v. Shelton, No. 04-0359/AR
there is nothing in the record to establish that these
counseling sessions were as spiritually charged as the
counseling involved in the present case. The mere prior
counseling contact between Rev. Dennis and Appellant on other
matters does not preclude a conclusion that, in the present
instance, Appellant’s communication with Rev. Dennis was a
matter of conscience. Accordingly, we conclude that the
military judge erred in failing to find that Appellant confessed
to Rev. Dennis as a matter of conscience.
We further hold that the communication was “made to a
clergyman in his capacity as a spiritual advisor” as required by
M.R.E. 503. Respecting all the faiths in our increasing
pluralistic society, this Court has recognized that the scope of
privileged protection in M.R.E. 503 is a large circle. We have
stated:
[M.R.E.] 503(b)(1) defines “clergyman” as “a minister,
priest, rabbi, chaplain, or other similar functionary of a
religious organization, or an individual reasonably
believed to be so by the person consulting the clergyman.”
[M.R.E.] 503 is similar to proposed Fed. R. Evid. 506,
which was not adopted. The Advisory Committee Note on the
proposed federal rule indicates that “clergyman” was
intended to mean a person “regularly engaged in activities
conforming at least in a general way with those of a
Catholic priest, Jewish rabbi, or minister of an
established Protestant denomination.” 25
25
Napoleon, 46 M.J. at 284 (citing 2 Stephen A. Saltzburg &
Michael M. Martin, Federal Rules of Evidence Manual § 601-02
(5th ed. 1990), and Stephen A. Saltzburg, Lee D. Schinasi &
David A. Schlueter, Military Rules of Evidence Manual § 557 (3d
ed. 1991)).
16
United States v. Shelton, No. 04-0359/AR
There is no dispute between the parties that Rev. Dennis
qualifies as a “clergyman” under M.R.E. 503(b)(1), as he is an
ordained minister and head pastor of the New Testament Christian
Church. Appellant attended Rev. Dennis’s church for
approximately two years, recognized him as his pastor, and
talked to him at the church in his capacity as a clergyman.
Again, we consider the circumstances of Rev. Dennis beginning
the meeting with prayer, the fact that the counseling session
occurred at the church, and the religious atmosphere and
spiritual language of the meeting as critical facts establishing
that Appellant’s communication with Rev. Dennis was in the
clergy’s official capacity.
Finally, the record establishes that Appellant intended his
communications to be confidential. This Court focuses on
Appellant to make this determination.26 At the motion hearing,
Appellant asserted that he intended that the conversation remain
confidential. He testified that he did not want his wife to
know what he revealed to Rev. Dennis. Appellant explained that
since Rev. Dennis was “the spiritual leader of our church and .
. . he wanted to talk to my wife, I -- I didn’t see why I should
tell him no, not to meet with her.”
26
Coleman, 26 M.J. at 409 (agreeing with United States v.
Moreno, 20 M.J. 623, 627 (A.C.M.R. 1985).
17
United States v. Shelton, No. 04-0359/AR
We acknowledge that Rev. Dennis testified that he had told
his congregation that he would not keep confidential
confessional communications regarding child abuse. But whether
or not Appellant was present when Rev. Dennis made these
statements is not as important as the religious context
established by Appellant’s private meetings with Rev. Dennis.
The specific circumstances of these private meetings support
Appellant’s reasonable expectation that the counseling was
indeed confidential.
Moreover, Rev. Dennis told Appellant that it was important
that his wife be present and that Appellant needed to tell his
wife because he had lied to her. Rev. Dennis also instructed
Appellant, “You need to stand up and tell her the truth of what
happened.” Appellant followed the advice of his spiritual
advisor. Since Rev. Dennis believed that Appellant’s wife’s
presence was necessary for his redemption, Appellant brought his
wife into the room where she learned that Appellant had been
sexually abusing his stepdaughter. And, “[a]s is the case with
the attorney-client privilege, the presence of third parties,
[which is] essential to and in furtherance of the communication,
does not vitiate the clergy-communicant privilege.”27
27
In re Grand Jury Investigation, 918 F.2d 374, 377 (3d Cir.
1990).
18
United States v. Shelton, No. 04-0359/AR
We need not presently define the precise parameters of
preserving this privileged communication made in the presence of
third parties. It is sufficient here to conclude that this
privilege is preserved where there is a “relationship by blood
or marriage” as well as a “commonality of interest” between the
accused and the third party present during the privileged
communications.28 Both these factors are present here as the
third party present was Appellant’s wife who had played the
pivotal role of sending Appellant to Rev. Dennis in the first
instance.
Finally, we observe there was only a short break in time
between Appellant’s first statement to Rev. Dennis and
Appellant’s second statement, made in the presence of
Appellant’s wife. We view the time for Appellant to obtain his
wife and return to the church and continue his conversation with
Rev. Dennis so short that it did not affect Appellant’s
expectation of confidentiality in the counseling session with
his pastor.
In summary, we conclude that the record establishes the
three-prong evidentiary foundation for the clergy privilege in
this case. Appellant communicated his guilt to Rev. Dennis,
Appellant’s pastor. Appellant’s communication was made as a
matter of conscience, and Appellant intended their communication
28
Id. at 385-88.
19
United States v. Shelton, No. 04-0359/AR
to remain confidential. Because M.R.E. 503 grants Appellant a
right to keep this privileged conversation confidential, we
conclude that the military judge abused his discretion by ruling
that Appellant’s statements to his pastor were not privileged
and would be otherwise admissible evidence.
As we conclude that the military judge made an evidentiary
error, normally we would now address whether this error was
harmless.29 In doing so we would consider other evidence that
implicated Appellant, including his incriminating statements to
both the social worker, Ms. Doyle, and the psychotherapist, Mr.
Comte. But that avenue of analysis is not presently open
because of the context of this error in the trial proceedings.
We now address the impact of this error on Appellant’s
conditional guilty plea.
2. Impact of the error regarding privilege on Appellant’s
conditional guilty plea
R.C.M. 910(a)(2) permits an accused to enter a conditional
plea of guilty, which reserves “the right, on further review or
appeal, to review of the adverse determination of any specified
pretrial motion.”
Consistent with the procedural rule, Appellant’s pretrial
guilty plea agreement specifically reserved “the right to appeal
29
Kotteakos v. United States, 328 U.S. 750, 765 (1946).
20
United States v. Shelton, No. 04-0359/AR
any adverse determinations made by the military judge of any of
the pretrial motions made at [his] court-martial.”
Appellant availed himself of the R.C.M. 910(a)(2) procedural
rule and the express terms of his pretrial agreement. Appellant
conditionally pled guilty to the charges. By doing so,
Appellant preserved his right to challenge the ruling of the
military judge notwithstanding his guilty plea.
R.C.M. 910(a)(2) also states, “If the accused prevails on
further review or appeal, the accused shall be allowed to
withdraw the plea of guilty.” Reflecting this provision, the
pretrial agreement further stated, “I [Appellant] understand
that if I prevail on further review or appeal, I shall be
allowed to withdraw my pleas of guilty.”
The military judge’s denial of the defense’s motion to
suppress Rev. Dennis’s statements was a determination adverse to
the defense and therefore covered by the terms of the
conditional guilty plea.30 As we conclude that the military
30
The military judge’s explanation to Appellant made clear that
Appellant would have the option of withdrawing from his guilty
plea if the military judge’s ruling on the privilege was
reversed on appeal. We note that the lower court assumed “that
if the defense had succeeded in suppressing any of [the
evidence], appellant could have withdrawn his guilty plea.”
Shelton, 59 M.J. at 728.
21
United States v. Shelton, No. 04-0359/AR
judge erred in denying the defense’s motion, Appellant is
entitled to the opportunity to withdraw his plea of guilty.31
This is the only appropriate remedy available to address the
military judge’s erroneous evidentiary ruling in the context of
a conditional guilty plea. In United States v. Barror,32 we
explained that the necessity of this remedy arises from the
government relying on an appellant’s conditional guilty plea to
satisfy its burden:
Of course in the instant case, since appellant candidly
confessed his guilt to the offense after losing the motion,
we are not, ultimately, concerned about the reliability of
[the victim]’s statement. Rather, what is at stake is the
ability of an accused to put the Government to its burden
of proving him guilty, beyond a reasonable doubt, using
only legally competent evidence. As the evidence available
to the Government did not meet that criterion, appellant is
entitled, in accordance with his agreement with the
Government and under the provisions of the Manual, to
withdraw his plea of guilty.33
As this precedent illustrates, R.C.M. 910(a)(2) preserves
and protects the Appellant’s right to make the Government prove
its case with admissible evidence.34 Honoring this fundamental
31
See United States v. Barror, 23 M.J. 370, 373 (C.M.A. 1987)
(holding that the military judge erred in denying the defense’s
motion to suppress the victim’s pretrial statement, upon which
the appellant’s guilty plea was conditioned, and allowing the
appellant to replead to the affected specification in the event
of a rehearing).
32
Id.33
Id. at 373 (emphasis added).
34
Our reliance on Barror in no way suggests that Appellant must
establish that the Government relied on his privileged statement
to prove his guilt. Appellant entered a conditional guilty
plea, and the condition occurred. As a matter of law, in the
22
United States v. Shelton, No. 04-0359/AR
right, we afford Appellant his bargained for right to withdraw
his pleas of guilty and obtain a rehearing. And we do so
without addressing whether or not the military judge’s error
might have been harmless had there been an evidentiary
proceeding in a contested case.35
DECISION
For all of the reasons above, the decision of the United
States Army Court of Criminal Appeals is set aside. The record
of trial is returned to the Judge Advocate General of the Army
for further proceedings consistent with this opinion.
context of this conditional guilty plea, Appellant was entitled
to withdraw his guilty plea when Appellant prevailed in his
appellate challenge to the evidentiary ruling.
35
The reasoning of Barror, 23 M.J. at 373, focusing on the
government’s burden of proof, explains why in this case it would
be inappropriate to inquire into whether Appellant’s subsequent
statements to Ms. Doyle and Mr. Comte are sufficiently
attenuated to be admissible. Cf. Oregon v. Elstad, 470 U.S. 298(1985).
23
United States v. Shelton, No. 04-0359/AR
CRAWFORD, Judge (dissenting):
Appellant’s communications with his pastor were not
protected under the clergy privilege. And, even if they were,
his subsequent confessions to law enforcement and social work
personnel were totally independent of the statements to the
pastor. Thus, I respectfully dissent from the majority’s
misapplication of Military Rule of Evidence (M.R.E.) 503, Manual
for Courts-Martial, United States (2005 ed.) (MCM),1 and assuming
there was a violation of M.R.E. 503, its failure to follow
precedent of the Supreme Court and this Court concerning the
attenuation of any taint.
BACKGROUND
Appellant’s wife became suspicious of Appellant when her
daughter told her “Daddy says . . . no more tongue in teeth”
when kissing. Later, the child was behaving oddly and told her
mother that Appellant “pointed down there and asked her to kiss”
him on his genitalia area. When his wife confronted Appellant,
he denied it. Mrs. Shelton then told Appellant she was going to
call their pastor, Reverend (Rev.) Dennis. Shortly after the
confrontation, Mrs. Shelton called Rev. Dennis for guidance.
Rev. Dennis told Mrs. Shelton to tell Appellant he wanted
to talk to him and to have Appellant come to see him the
1
The current versions of all MCM provisions cited are identical
to the ones in effect at the time of Appellant’s court-martial
unless otherwise indicated.
United States v. Shelton, No. 04-0359/AR
following evening at 8:00 p.m. Rev. Dennis’s purpose was to
find out the truth about the allegations. Mrs. Shelton told
Appellant about the meeting and he arrived as directed.
Appellant acknowledged he was not seeking a meeting with Rev.
Dennis and that he was responding to Rev. Dennis’s direction.
Although not certain of the purpose of the meeting,
Appellant suspected it was to discuss the allegations his wife
raised with him regarding his stepdaughter. Appellant realized
that ultimately he would have to tell his wife what had happened
with his stepdaughter, but it was not his plan to tell her at
that time. Appellant also did not plan on admitting his
misconduct to Rev. Dennis at the meeting. Appellant testified
he went to the meeting because his pastor “asked to meet with
[him] and [he] always went if [his] pastor ever wanted to meet
with [him]. He acknowledged he could have chosen not to go to
the meeting, however, he thought it would have been
disrespectful to Rev. Dennis not to respond.
The meeting took place in a two-bedroom house located on
the church property and routinely used as a nursery. Rev.
Dennis also used this building for meetings with church members.
The area used for the meeting was set up similar to a living
room with sofas. Rev. Dennis was dressed in slacks, a dress
shirt, and jacket, which was typical attire for him when not
presenting a sermon.
2
United States v. Shelton, No. 04-0359/AR
When Appellant entered the room, Rev. Virgo was in the room
with Rev. Dennis.2 Rev. Dennis did not introduce Rev. Virgo to
Appellant and Appellant did not question his presence.
According to Appellant, it was common practice for another
preacher to be present in counseling sessions.
The meeting started with Rev. Virgo leading the three men
in a prayer. Immediately after the prayer, Rev. Dennis got to
the point of the meeting. He told Appellant that his wife had
called him and said that something very serious had happened at
home. Rev. Dennis told Appellant that he wanted to know the
truth and that God would judge Appellant if he lied. Appellant
readily admitted he had engaged in inappropriate conduct with
his stepdaughter and had fantasies of taking the contact with
his stepdaughter to another level. Rev. Dennis told Appellant
his conduct was wrong and that he could go to jail for this.
Rev. Dennis then told Appellant that he needed to tell his
wife the truth about what had occurred with his stepdaughter.
There was no discussion about why Appellant’s wife needed to
know the truth. He told Appellant to go get his wife and bring
her back to the meeting. Appellant left the meeting, went to
2
Rev. Dennis routinely trained young, inexperienced preachers in
his church and had them present during meetings or other church
functions. Rev. Virgo was one of the young preachers Rev.
Dennis trained.
3
United States v. Shelton, No. 04-0359/AR
his home to pick up his wife, and returned to the meeting within
fifteen to twenty minutes.
Appellant and his wife sat down in the room with Rev.
Dennis and Rev. Virgo. Rev. Dennis told Appellant “you need to
talk to her. Tell her exactly what happened.” Appellant
responded, “I did it. I did it. I’m wrong. I did it.” He
also stated, “that’s not the way I want to be . . . .” It
appears that neither Rev. Dennis nor Appellant repeated the
details of Appellant’s initial confession of his actions and
fantasies to Appellant’s wife.
During the conversations with Appellant, Rev. Dennis told
the parties present that the situation was serious, it needed to
be reported, something had to be done, and Appellant could go to
jail. At no time did Appellant object to or oppose reporting
his misconduct. Rev. Dennis told the Sheltons during the
meeting that state law required clergy to report any type of
crime against children.3 At the conclusion of the meeting, Rev.
Dennis proceeded to address what to do next. He expressed
concern for the safety of Appellant’s stepdaughter and
recommended that Mrs. Shelton leave the home with her children.
Mrs. Shelton said she would keep her daughter away from
3
Clergy are not mandated reporters of child abuse in the state
of Washington. Wash. Rev. Code Ann. § 26.44.030 (West 2003).
4
United States v. Shelton, No. 04-0359/AR
Appellant. The entire meeting process, including the time it
took for Appellant to go home and pick up his wife, lasted
approximately one hour and fifteen minutes. The Sheltons left
the church at 9:00 p.m. or 9:15 p.m.
Even though Appellant did not want his wife to know about
his actions at that time, he left the meeting, picked up his
wife and brought her back to the church to talk to Rev. Dennis.
Appellant said he knew his admissions would not be held
confidential “when [Rev. Dennis] told my wife, and then the
meeting afterwards he informed me and my wife that according to
the bylaws that -- that he would have to tell the proper
authorities.” He also testified he was not using Rev. Dennis
“to come clean” with his wife or to turn himself in for his
misconduct. When Appellant decided to meet with Rev. Dennis, he
did not plan or intend to acknowledge or talk about his actions
with his stepdaughter.4 Rev. Dennis confronted Appellant about
the allegations raised by Appellant’s wife and Appellant
confessed.
Approximately two weeks later, Rev. Dennis saw Appellant’s
wife at church and asked if she was going to report what
4
Appellant testified that “when I first went there I did not --
I did not want to tell him anything. I was not going to tell
him anything, but after he made the statement to me I thought
about it real quick and -- and that was when I decided to go
ahead and tell him.”
5
United States v. Shelton, No. 04-0359/AR
happened. Rev. Dennis told her he was obligated to report it to
the proper authorities and advised her to do the same. Rev.
Dennis never reported Appellant’s misconduct to authorities. On
June 24, 1999, Appellant’s wife contacted Ms. Sandi Doyle, a
social worker at Fort Lewis. Appellant’s wife told Appellant
she had contacted Social Work Services. Ms. Doyle contacted the
Criminal Investigative Division (CID), which contacted
Appellant’s chain of command. On June 24, 1999, Appellant was
ordered to report to CID. After a proper rights advisement,
Appellant made a sworn statement admitting his misconduct with
his stepdaughter.5 The following day, Appellant went to Social
Work Services to meet with Ms. Doyle for an appointment.
Appellant talked about his actions in general terms with Ms.
Doyle. She then set up an appointment for him with Mr. Michael
Comte, a psychotherapist. Appellant discussed with Mr. Comte
the details of his misconduct and fantasies. By the time the
appointment was set up with the psychotherapist, Appellant
wanted to meet with Mr. Comte to get assistance for himself.
5
Special Agent (SA) Proctor of the Fort Lewis CID interviewed
Appellant on June 24, 1999, after receiving a call from Ms.
Doyle from Social Work Services. She told CID she had
information that indicated Appellant may have committed indecent
acts with his stepdaughter. SA Proctor did not interview or
talk to Mrs. Shelton prior to his interview with Appellant. SA
Proctor advised Appellant of his Article 31(b), Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 831(b) (2000), rights prior
to questioning Appellant. Appellant waived his rights and
rendered a sworn statement admitting misconduct with his
stepdaughter.
6
United States v. Shelton, No. 04-0359/AR
Appellant acknowledged that his communications to Mr. Comte were
not connected to what he had said to CID.
DISCUSSION
M.R.E. 503(a) provides that the holder of a privilege may
“prevent another from disclosing a confidential communication by
the person to a clergyman . . . if such communication is made
either as a formal act of religion or as a matter of
conscience.” M.R.E. 503(b) defines “clergyman” and then
expressly limits the term “confidential communication.”
“[C]ommunication is ‘confidential’ if made to a clergyman in the
clergyman’s capacity as a spiritual advisor . . . and is not
intended to be disclosed to third persons other than those to
whom disclosure is in furtherance of the purpose of the
communication or to those reasonably necessary for transmission
of the communication.” M.R.E. 503(b)(2).
This Court has adopted the three-prong test identified in
United States v. Moreno, 20 M.J. 623, 626 (A.C.M.R. 1985),6 to
determine whether communication to a clergy is privileged and
thus, protected from disclosure. One claiming the clergy
privilege must establish:
(1) the communication must be made either as a formal
act of religion or as a matter of conscience;
(2) it must be made to a clergyman in his capacity as
a spiritual advisor or to his assistant in his
official capacity; and
6
United States v. Coleman, 26 M.J. 407, 409 (C.M.A. 1988).
7
United States v. Shelton, No. 04-0359/AR
(3) the communication must be intended to be
confidential.7
Applying this analysis to the facts in this case, I would not
hold that a clergy privilege existed.8 Specifically, I would not
conclude that Appellant confessed his actions and fantasies to
Rev. Dennis and Rev. Virgo and subsequently to his wife as a
matter of conscience or that Appellant “intended” the
communication to be “confidential.”9
A MATTER OF CONSCIENCE
Appellant’s confessions to Rev. Dennis, Rev. Virgo, and
Mrs. Shelton do not amount to a “matter of conscience.” The
clergy “privilege recognizes the human need to disclose to a
spiritual counselor, in total and absolute confidence, what are
believed to be flawed acts or thoughts and to receive priestly
consolation and guidance in return.” Trammel v. United States,
445 U.S. 40, 51 (1980).
The facts in this case do not support a finding that
Appellant was seeking out Rev. Dennis for any kind consolation
or guidance. Appellant did not request a meeting. Rev. Dennis
told Appellant to come to see him. Rev. Dennis set up the
7
Moreno, 20 M.J. at 626 (emphasis added).
8
I take issue with the majority’s findings in regard to prongs
one and three of the Moreno test. I do not dispute that Rev.
Dennis qualifies as clergyman and served as a spiritual advisor.
9
I agree with the majority that the facts do not support a
finding that Appellant’s communication was a “formal act of
religion.” Thus, I will not address this factor.
8
United States v. Shelton, No. 04-0359/AR
meeting to find out the truth of the allegations raised by Mrs.
Shelton and to determine if the safety of Appellant’s
stepdaughter was an issue. Mrs. Shelton was the one seeking out
Rev. Dennis’s assistance, not Appellant. Moreover, Rev. Dennis
sought out Appellant. This is not a situation where a penitent
is seeking to confess his sins to obtain forgiveness or
guidance. In sum, these facts do not amount to an individual
seeking to talk to a member of the clergy “as a matter of
conscience.”
Appellant claimed he confessed because he did not “want the
judgment of God” on him and he was hoping Rev. Dennis would
“tell [him] how [he could] get back in favor with God, and maybe
could even tell [him] someplace [he] could go to find help.”
However, Appellant’s actions, or lack of actions, do not support
Appellant’s assertion that he was seeking consolation or help
for repentance. During the meeting, and during the days
following the meeting, Appellant did not ask for a subsequent or
follow-up meeting for consolation or counseling with Rev. Dennis
or other members of the clergy, nor did he seek or ask about
referrals to other professionals who could help him. Further,
during the meeting, Appellant did not ask for prayer for himself
9
United States v. Shelton, No. 04-0359/AR
or his family.10 He also did not ask God for forgiveness through
prayer or through Rev. Dennis. He did not ask his wife for
forgiveness or promise to try to get help in dealing with his
conduct and proclivities.
Appellant was not “in need.” If anyone was seeking help or
consolation, it was Appellant’s wife. Mrs. Shelton was seeking
help from Rev. Dennis to find out the truth from Appellant
regarding her daughter’s statements and actions.
None of the reasons for the applicability of the clergy
privilege is present in this case. Appellant was not seeking
help or consolation from Rev. Dennis. As the military judge
correctly concluded, “the [Appellant’s] motivation in agreeing
to meet [Rev.] Dennis was not for the purpose of seeking the
clergyman’s spiritual guidance or as a matter of conscience.”
COMMUNICATION MUST BE INTENDED TO BE CONFIDENTIAL
The totality of the circumstances surrounding the
disclosure do not support Appellant’s assertion that the
conversation with Rev. Dennis was intended to be “confidential.”
I agree that “[w]hether a communication is confidential will
depend on the intent of the person making the communication,”
however, a military judge or court must look at the
10
According to Appellant, the Bible says that “one part of
forgiveness is that we have to confess our sins while in praying
to Jesus . . . .”
10
United States v. Shelton, No. 04-0359/AR
“circumstances, timing, and location of the communication” to
determine the actual intent of that person.11
From the beginning, Rev. Dennis made it very clear the
situation was serious and needed to be reported. He told both
Appellant and his wife that Appellant could go to jail for his
actions towards his stepdaughter. He also told Appellant he
needed to tell his wife the truth and he directed Appellant to
go pick her up and bring her back to the meeting. Appellant
left the meeting, went home to pick up his wife, and returned to
the meeting within fifteen to twenty minutes. Appellant never
disputed or openly argued against “reporting” the situation or
to “telling” his wife. Appellant never asked that Rev. Dennis
not involve anyone else in the situation.12 It is unreasonable,
11
2 Stephen A. Saltzburg et al., Military Rules of Evidence
Manual § 502.02, at 5-25 (5th ed. 2003). See also id. § 503.01,
at 5-37 (“[T]he definition [of confidential communications]
turns on the penitent’s intent and is broad enough to include
oral and written statements if made to the clergyman in
confidence for the purpose of seeking spiritual counseling. If
the statements were made for non-spiritual purposes, the
privilege does not exist.”).
12
Rev. Dennis testified that he “taught” all church members in
open meetings that if they came to him with a matter they wanted
him to keep confidential, they had to state that to him. He
also specifically told the members of his church that there
would be no confidentiality if a crime was committed. Appellant
and his wife had been members of Rev. Dennis’s church for more
than two years. The Sheltons also attended a church pastored by
Rev. Dennis at a previous duty assignment in Georgia. Appellant
and Mrs. Shelton testified at the Article 39(a), UCMJ, 10 U.S.C.
§ 839(a) (2000), session that they did not recall being told
prior to the meeting that if a member revealed a crime to Rev.
Dennis, he would not consider the communication confidential.
11
United States v. Shelton, No. 04-0359/AR
based on what was being said and done during the meeting to
conclude that Appellant perceived his statements acknowledging
misconduct amounted to “a confidential disclosure” to a member
of the clergy. The fact that Appellant readily went to pick up
his wife and returned to Rev. Dennis’s office with her so that
he could “tell” her the truth is inconsistent with Appellant’s
assertion that he believed his confession would not be disclosed
or kept secret. Even assuming Appellant expected his
conversation with Rev. Dennis and Rev. Virgo to be held in
confidence, once he told his wife and allowed Rev. Dennis to
tell his wife about his confessed misconduct, there was no
longer a realistic expectation of privacy.
If Appellant expected or intended confidentiality, he did
not say so at the time and never responded to what was being
said to him by Rev. Dennis. It is clear from Rev. Dennis’s
comments and actions that he did not intend to keep this
information confidential. Appellant never questioned or
challenged this intent. Conveniently, at the Article 39(a),
They also claimed they did not recall being told that they had
to request the communication be held in confidence before they
could expect confidentiality. Both recall Rev. Dennis
discussing with them at the meeting that “by law” he was
required to report the incident to authorities. There is some
confusion in the testimony and in the military judge’s findings
as to whether Rev. Dennis believed he was required to report
child abuse “by state law” or based on the “by-laws” of the
church. Rev. Dennis’s testimony clarifies that he is referring
to state law and not church “by-laws.”
12
United States v. Shelton, No. 04-0359/AR
UCMJ, session, Appellant testified that he believed his
confession would be confidential. This Court now finds that
testimony more credible than the military judge’s findings
regarding Appellant’s and Rev. Dennis’s credibility.13 Contrary
to Appellant’s assertions at trial and the findings by the
majority, the facts do not support the conclusion that Appellant
was seeking to make his admission of wrongdoing confidential.
In addition, Appellant failed to establish that the
presence of Rev. Virgo, and subsequently his wife, during his
communications with Rev. Dennis were essential to, or in
furtherance of, the purpose of the communication to a clergy
member. Generally, the existence and applicability of the
clergy privilege is undermined by the presumption “that
communications that take place in the presence of third parties
are not confidential.” In re Grand Jury Investigation, 918 F.2d
374, 385 n.15 (3d Cir. 1990).14 Although the privilege may exist
13
On the credibility issue, the military judge believed Rev.
Dennis, rather than Appellant, and found that the “discussion[s]
between [Rev. Dennis] and the accused were not meant to be
confidential . . . .” See United States v. Martinez, 38 M.J.
82, 86 (C.M.A. 1993) (military judges are in the unique position
to decide the appropriate weight to give to the testimony of
witnesses and when “the military judge expresses special
influence of that unique viewpoint on his judgment,” that should
weigh heavily in the appellate court’s determination).
14
“[I]n a situation where numerous persons, each seeking
individual spiritual guidance, choose to meet as a group with a
clergy member, a privilege does not exist unless, upon
independent scrutiny, the ‘essentiality and in furtherance’ test
is met.” In Re Grand Jury Investigation, 918 F.2d at 386 n.19.
13
United States v. Shelton, No. 04-0359/AR
even if third persons are present or later hear the
communication, the disclosure must be “in furtherance of the
purpose of the communication or to those reasonably necessary
for the transmission of the communication.” M.R.E. 503(b)(2).
The burden of proof to establish the existence of the privilege
and to rebut the presumption is on the party asserting the
privilege. In re Grand Jury Investigation, 918 F.2d at 385.
In this case, a third person, Rev. Virgo, was present
during Appellant’s initial confession to Rev. Dennis and during
Appellant’s admission to his wife. Appellant did not know Rev.
Virgo and was not introduced to him at the time of the meeting
as someone who needed to be present in order to facilitate the
process or the communication. No one asked Appellant’s
permission to have Rev. Virgo present during his discussion with
Rev. Dennis and Appellant did not voice an objection to having a
person he did not know present during his conversation.
Although Rev. Virgo apparently led the group in prayer as the
meeting began, he did not participate in the questioning of
Appellant or any counseling. He simply served as a witness to
what was transpiring. Appellant had no expectation of receiving
anything, including consolation from Rev. Virgo. Rev. Virgo did
not further the purpose of the communication and his presence
was not reasonably necessary for the transmission of the
communication.
14
United States v. Shelton, No. 04-0359/AR
After Appellant confessed to Rev. Dennis in the presence of
Rev. Virgo, Rev. Dennis told Appellant to go get his wife and
bring her back. Rev. Dennis also told Appellant he should tell
his wife the truth about what he did to his stepdaughter.
Appellant brought his wife back to the meeting with Rev. Dennis
and Rev. Virgo. At that time, Appellant acknowledged that he
acted inappropriately with his stepdaughter. Making Appellant
tell his wife the truth was not in “furtherance of the purpose
of the communication” and was not “reasonably necessary for the
transmission of the communication.” See M.R.E. 503(b)(2).
Telling his wife “the truth” was also not necessary for
consolation or to help Appellant. And, contrary to the
assertion of the majority, telling his wife was not necessary
for Appellant’s “redemption.” There were no follow-up meetings
or counseling sessions scheduled for Appellant individually, or
with his wife. There were no recommendations or referrals to
mental health professionals. Rev. Dennis made Appellant tell
his wife the truth to confirm her suspicions about Appellant.
Presumably, he also made Appellant tell his wife to prevent
Appellant from committing additional misconduct with his
stepdaughter and to protect her.15 There was no other purpose
15
Arguably, the purpose of the communication to Mrs. Shelton was
necessary to protect Appellant’s stepdaughter from further harm
and exposure to Appellant. However, protection of Appellant’s
15
United States v. Shelton, No. 04-0359/AR
for communicating Appellant’s misdeeds to Mrs. Shelton. In
short, telling Mrs. Shelton was not to help Appellant in any
way.16 Appellant failed to demonstrate that the communications
to Rev. Virgo or his wife were in furtherance of the purpose of
the communication or that their presence was necessary for the
transmission.
MILITARY JUDGE’S ESSENTIAL FINDINGS
The majority believes the military judge erred in
concluding that Appellant’s communication with Rev. Dennis was
not “a matter of conscience.” The majority opinion determined
that the military judge abused his discretion because he
“misconstrued” the clergy privilege and gave more weight to Rev.
Dennis’s opinions versus the opinions of Appellant.17
The military judge did look at Appellant’s “opinion” and
determined whether Appellant intended for the communication to
be a confidential “matter of conscience.” The military judge,
however, did not limit his factfinding merely to Appellant’s
stepdaughter could have been accomplished without having
Appellant confess his actions to his wife.
16
Compare United States v. Isham, 48 M.J. 603, 607-08 (N-M. Ct.
Crim. App. 1998) (Court concluded that the appellant agreed to
disclosure by “a” chaplain for the limited purpose of getting
help for the appellant and preventing him from carrying out
threats to harm himself and others. The disclosure was for a
limited purpose of getting the appellant help and not for
disclosure at a court-martial.).
17
Appellate courts presume that military judges know the law and
apply it correctly. United States v. Raya, 45 M.J. 251, 253
(C.A.A.F. 1996); United States v. Prevatte, 40 M.J. 396, 398
(C.M.A. 1994).
16
United States v. Shelton, No. 04-0359/AR
words. He looked at the credibility of the witnesses and the
“circumstances, timing, and location of the communication” to
make “independent conclusions” regarding the existence of the
privilege. He also looked at what was being said and done at
the time of the communication to determine Appellant’s actual
intent. If Appellant disagreed, or truly intended not to have
his confession disclosed, he should have at least said something
to that effect. The majority relies on Appellant’s spoken words
during the motion hearing and what they perceive as a coercive
“religious atmosphere” to determine the actual intent of
Appellant.18
The majority finds that Appellant confessed to Rev. Dennis
“as a matter of conscience” by focusing on the “religious
atmosphere” surrounding the conversations, as well as Rev.
Dennis’s use of God to cause Appellant to feel guilt and shame
and thus confess. Accordingly, the majority equates this
potentially “coercive” environment to Appellant having an intent
to confess his actions and fantasies “as a matter of
18
Anderson v. Bessemer City, 470 U.S. 564, 574 (1985) (If the
military judge’s “account of the evidence is plausible in light
of the record viewed in its entirety, [we] may not reverse it
even though convinced that had [we] been sitting as the trier of
fact, [we] would have weighed the evidence differently. Where
there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly erroneous.”).
17
United States v. Shelton, No. 04-0359/AR
conscience.”19 In his findings, the military judge clearly
looked at and considered Appellant’s intent as to why he
selected this moment in time to confess and whether he was
seeking consolation, assistance, or forgiveness from his God.20
The military judge’s findings are correct. Appellant did not
seek to confess his misconduct as a “matter of conscience” or as
“a formal act of religion.” Appellant never spoke up or took
any actions to demonstrate a different conclusion as to his
“intent.”
In its opinion, the majority comments that the military
judge prepared his “formal written ruling” on the motion to
suppress nine months after the trial. The majority seems to
infer that the military judge acted inappropriately by
submitting his written findings after the trial. After this
lengthy verbatim record was prepared and given to the military
19
The military judge was not asked to determine whether
Appellant’s confession was involuntary based on the cohercive
“religious atmosphere,” however, and the majority seems to have
raised and resolved the issue on behalf of the defense under the
guise of the clergy privilege.
20
The military judge stated in his findings on the motion: (1)
that Appellant did not intend for the communications to be
confidential; (2) that had he intended that the communications
be confidential he would not have spoken with Rev. Virgo present
or brought his wife back to Rev. Dennis’s office; (3) that
Appellant’s motivation in agreeing to meet Rev. Dennis was not
for the purpose of seeking spiritual guidance or as a matter of
conscience; and (4) that Appellant never asked for spiritual
guidance, absolution, or God’s forgiveness.
18
United States v. Shelton, No. 04-0359/AR
judge, he prepared his factual findings.21 See 1 Francis A.
Gilligan & Fredric I. Lederer, Court-Martial Procedure § 14-
64.30, at 584 n.245 (2d ed. Supp. 2004).22
How rulings are entered in trials by courts-martial
varies according to the circumstances of the case,
local resources, and local practice. Most rulings on
simple evidentiary objections are entered orally on
the record at the time the objection is made. As to
motions to suppress and motions in limine, some
military judges enter their ruling and essential
findings orally or in writing on the record
contemporaneously. Others enter their ruling orally,
followed by written essential findings. In any case,
in view of the Rules for Courts-Martial . . . , divers
local practices and customs, and the absence of any
trial court rules before us, we cannot lay down any
hard and fast rule on how rulings on suppression
motions are made at trial. Instead, we must give
weight to the local practice and to the intentions of
the military judge as manifested by his action on the
record of the particular case.
United States v. Flores-Galarza, 40 M.J. 900, 906 (N.M.C.M.R.
23
1994).
21
R.C.M. 905(d) (“Where factual issues are involved in
determining a motion, the military judge shall state the
essential findings on the record.”). See also United States v.
Doucet, 43 M.J. 656, 659 (N-M. Ct. Crim. App. 1995) (Although
the court urged the importance of entering essential findings
contemporaneously with the ruling, the court noted that “[t]he
usual remedies for a failure [of the military judge] to enter
the required essential findings are a rehearing or return of the
record of trial to the military judge for entry of the essential
findings.”).
22
See also R.C.M. 905(f) (permitting reconsideration by the
military judge of any ruling, other than one of “not guilty,”
prior to authentication of the record of trial); United States
Army, Trial Judiciary Standard Operating Procedure, Chap. 18,
para. 11 (May 1, 2003) (explaining that “[i]f special or
essential findings are made in a memorandum format, the
memorandum must be appended to the record of trial as appellate
exhibit before authentication.”)
19
United States v. Shelton, No. 04-0359/AR
Our justice system places a lot of responsibility and trust
in our military judges. Unless the evidence shows otherwise, we
should not assume military judges will take the opportunity to
prepare essential findings after a ruling as a post hoc
rationalization for the ruling. In light of the fact that a
military judge can reconsider his findings on all motions except
findings of not guilty before authentication of the record, we
cannot overreact to military judges who pen their findings after
trial but before authentication. The majority seems to overlook
the fact that the military judge made his ruling on the record
and summarized the basis for his ruling at that time. Since
this motion was the focus of the conditional plea, it is likely
the military judge wanted to put his findings in a more formal
format. The critical point, however, is that the military judge
made his essential findings of fact before authentication of the
record.
23
But cf. Flores-Galarza, 40 M.J. at 906 n.9.
[T]he most important value of making essential findings
contemporaneously with the ruling is the discipline it
affords the decision maker and the integrity it brings to
the decision-making process. If essential findings are
prepared after the ruling, they may become nothing more
than a post hoc rationalization. Hence, the far better
practice is to enter the ruling and essential findings
contemporaneously.
Id.
20
United States v. Shelton, No. 04-0359/AR
Additionally, I notice a disturbing trend by the majority.
In United States v. McNutt,24 this Court considered as fact what
the court below considered arguendo. In United States v.
Harvey, __ M.J. __ (1) (C.A.A.F. 2006) (Crawford, J.,
dissenting), this Court converts what purports to be a statement
of counsel into evidence to reach its conclusion. Finally, in
United States v. Warner,25 this Court considered a very lengthy
appellate exhibit as facts, and yet, this Court now implies that
it was somehow improper for the military judge to see the record
before making his formal findings.
ATTENUATION
Assuming that the clergy privilege applies in this case,
the parties recognized at trial that Appellant made additional
statements to others regarding the abuse of his stepdaughter.
The defense argued at trial that these statements should also be
excluded because they were “made only because there had been a
breach of the clergyman-penitent privilege. . . .” The defense
motion that Appellant’s conditional plea sought to preserve
clearly extended to suppression of “any and all evidence seized,
collected, and developed as result of the breach of his
confidential communication to his pastor. . . .” Nevertheless,
the issue before the military judge, the CCA, and this Court,
24
62 M.J. 16, 24-25 (C.A.A.F. 2005) (Crawford, J., concurring in
part and dissenting in part).
25
62 M.J. 114, 124 (C.A.A.F. 2005) (Crawford, J., dissenting).
21
United States v. Shelton, No. 04-0359/AR
does not preclude the conclusion that the “evidentiary error”
regarding the privileged communication was harmless since
Appellant’s statements to the CID agent and the psychotherapist
were attenuated and prove Appellant’s guilt. See Moreno, 20
M.J. at 627 (“An error not of constitutional dimension may be
found harmless if the fact finder was not influenced by it or if
the error had but a slight effect on the resolution of the
issues in the case.”).
As evidenced by the facts in the record of trial,
Appellant’s subsequent statements were attenuated from the
initial confession to Rev. Dennis and Appellant’s wife.
Seventeen days after Appellant spoke to Rev. Dennis, he made a
sworn statement to CID after being properly advised of his
rights and waiving them. At the time of this statement, he was
not bullied or threatened in any way.
In the past, a conditional plea did not preclude this Court
from examining any derivative evidence or a secondary basis for
affirming the ruling on the motion. See, e.g., United States v.
Robinson, 58 M.J. 429, 432-34 (C.A.A.F. 2003) (in a conditional
plea case, the Court went beyond the question of probable cause
and examined a secondary basis in upholding the investigative
stop -- reasonable suspicion); United States v. Lichtenhan, 40
M.J. 466, 469-70 (C.M.A. 1994) (in a conditional plea case, this
Court held that the subsequent statement to the Naval
22
United States v. Shelton, No. 04-0359/AR
Investigative Service was admissible and not tainted by the
prior, unwarned statement). The majority’s reliance on United
States v. Barror, 23 M.J. 370 (C.M.A. 1987), is also misplaced.
In that case, this Court concluded that the government’s only
significant evidence of the appellant’s guilt was not admissible
and, as a result, the government had no other “legally competent
evidence” available to establish the appellant’s guilt. Id. at
373. In this case, there were at least three other statements
by Appellant to three different individuals.26 These statements
were made by Appellant seventeen days after his statements to
his wife and Rev. Dennis and, thus, any potential taint had
dissipated. In addition, the Government had the statements by
Appellant’s stepdaughter to Mrs. Shelton and Mrs. Shelton’s
observations of her conduct. With this other evidence, the
Government could meet its burden of proving Appellant’s guilt
with “legally competent evidence.”
Once again, however, this Court selectively decides when it
wants to follow its own precedent. See United States v. Aleman,
62 M.J. 281, 284-85 (C.A.A.F. 2005)(Crawford, J., dissenting).
In the past, this Court has evaluated the prejudice from
erroneous evidentiary rulings by “weighing (1) the strength of
the Government’s case, (2) the strength of the defense case, (3)
26
Appellant made some general admissions to the social worker,
Ms. Doyle. He also made detailed admissions to SA Proctor of
CID and to Mr. Comte, the psychotherapist.
23
United States v. Shelton, No. 04-0359/AR
the materiality of the evidence in question, and (4) the quality
of the evidence in question.” United States v. Kerr, 51 M.J.
401, 405 (C.A.A.F. 1999). The other “legally competent
evidence” in this case clearly supports the Government’s burden
of proof and a finding of guilty on the affected specifications
and charge.
CONCLUSION
Because I would resolve that question in favor of the
military judge’s ruling regarding the application of the clergy
privilege, I would hold that Appellant did not prevail, that his
plea was provident, that Appellant may not withdraw his plea,
and that the findings and sentence should be affirmed.
24