United States v. Mason , 59 M.J. 416 ( 2004 )

UNITED STATES, Appellee
v.
Arthur MASON, Jr., Staff Sergeant
U.S. Army, Appellant
No. 03-0259
Crim. App. No. 9601811
United States Court of Appeals for the Armed Forces
Argued March 3, 2004
Decided May 4, 2004
CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE, EFFRON, BAKER, and ERDMANN, JJ., joined.
Counsel
For Appellant: Captain Kathy Martin (argued); Colonel Robert D.
Teetsel, Lieutenant Colonel Mark Tellitocci, and Major Allyson
G. Lambert (on brief); Lieutenant Colonel E. Allen Chandler,
Jr., Major Jeanette K. Stone, and Captain Linda A. Chapman.
For Appellee: Captain Ryan R. McKinstry (argued); Colonel Lauren
B. Leeker, Lieutenant Colonel Margaret B. Baines, and Captain
Mark A. Visger (on brief); Captain Tami L. Dillahunt.
Amicus Curiae for Appellee: Marc A. DeSimone, Jr. (law student)
(argued); Susan J. Hankin, Esq. (supervising attorney) and
Michael Haslup (law student) (on brief) – for the University of
Maryland School of Law.
Military Judges: G. O. Varo (first trial); R. F. Holland
(retrial).
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Mason, No. 03-0259/AR
Chief Judge CRAWFORD delivered the opinion of the Court.
On November 2, 1996, a general court-martial composed of
officer and enlisted members convicted Appellant, contrary to
his pleas, of rape, aggravated assault with a dangerous weapon,
burglary, and communication of a threat, in violation of
Articles 120, 128, 129, and 134, Uniform Code of Military
Justice [hereinafter UCMJ], 10 U.S.C. §§ 920, 928, 929, and 934
(2000). The convening authority approved the adjudged sentence
to a dishonorable discharge, confinement for eight years,
forfeiture of all pay and allowances, and reduction to pay-grade
E-1.
On June 30, 1999, the Army Court of Criminal Appeals set
aside the findings and sentence for Appellant’s first trial
based on an improper ruling by the military judge on a defense
challenge for cause against a member. United States v. Mason,
Army No. 9601811 (A. Ct. Crim. App. 1999). A rehearing was
authorized.
On March 31, 2000, Appellant was retried by a general
court-martial composed of officer and enlisted members and,
contrary to his pleas, was found guilty of rape and burglary, in
violation of Articles 128 and 129. The members sentenced
Appellant to a dishonorable discharge, ten years of confinement,
total forfeitures, and reduction to pay grade E-1. The
convening authority approved only so much of the sentence as
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United States v. Mason, No. 03-0259/AR
provided for a dishonorable discharge, eight years of
confinement, total forfeitures, and reduction to E-1, and
credited him with 922 days of confinement.
On January 27, 2003, the Army Court affirmed the findings
and sentence. United States v. Mason, 58 M.J. 521 (A. Ct. Crim.
App. 2003). On September 30, 2003, this Court granted review of
the following issues:1
I. WHETHER THE MILITARY JUDGE ERRED IN DENYING THE
DEFENSE MOTION TO SUPPRESS BLOOD TEST RESULTS AND
RELATED DNA EVIDENCE. (A) WAS THERE A BASIS FOR
CONCLUDING THAT PROBABLE CAUSE EXISTED? (B) DID
THE AGENTS PROVIDE FALSE AND MISLEADING
INFORMATION AND OMIT MATERIAL FACTS WHEN SEEKING
THE WARRANT THAT WAS ISSUED TO OBTAIN A SAMPLE OF
APPELLANT’S BLOOD?
II. WHETHER THE MILITARY JUDGE ERRED IN OVERRULING
THE DEFENSE OBJECTION TO THE GOVERNMENT’S
QUESTION TO ITS DNA EXPERT REGARDING WHETHER THE
DEFENSE HAD REQUESTED THE EVIDENCE BE RETESTED.
DID THIS QUESTION IMPROPERLY SHIFT THE BURDEN TO
THE DEFENSE TO PROVE APPELLANT’S INNOCENCE?
III. WHETHER THE ARMY COURT ERRED BY HOLDING THAT THE
DEFENSE HAD OPENED THE DOOR FOR THE GOVERNMENT’S
QUESTION ABOUT DNA RETESTING BY RAISING THE ISSUE
OF WHETHER FURTHER TESTING OF THE AVAILABLE DNA
MATERIAL FROM THE RAPE COULD HAVE EXONERATED
APPELLANT.
1
We heard oral argument in this case at the University of
Maryland School of Law, Baltimore, Maryland, as part of the
Court's "Project Outreach." This practice was developed as part
of a public awareness program to demonstrate the operation of a
Federal Court of Appeals and the quality of the military
criminal justice system.
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For the reasons set forth below, we affirm the findings and
sentence.
FACTS
The Army Court of Criminal Appeals summarized the
preliminary facts of the case as follows:
At 0529 [on March 10, 1995,] Specialist (SPC) P,
who lived in quarters on Fort Riley with his wife and
two children, went to work. His spouse, Mrs. P,
stayed in bed with their 18-month-old baby sleeping
next to her. A few minutes after SPC P left, Mrs. P
heard the front door open. Then she heard someone
moving down the hallway towards her bedroom. Mrs. P
believed that her husband had returned because he had
forgotten his hat. When the person entered her
bedroom, she screamed. The person was not her
husband. Mrs. P said that the intruder brandished a
knife and threatened her son's life unless she stopped
screaming. The intruder then raped Mrs. P. By 0537
the attacker had left Mrs. P's quarters. At trial and
on appeal, the defense did not contest that Mrs. P had
been raped.
Mrs. P called her husband at work at about 0537
and told him she had just been raped. She then called
the military police. At about 0545, first the
military police and then the U.S. Army Criminal
Investigation Command (CID) special agents arrived at
SPC P's quarters. Mrs. P described her assailant to
CID and at the retrial, as "a [B]lack [sic] male,
around 5'6" to 5'7" tall, stocky build, around 150 to
160 pounds; he had razor bumps, a big nose. . . .
[and] a slight mustache." He was dressed in an Army
physical training (PT) uniform with a black wool cap.
Mrs. P was unable to see her attacker's teeth, nor did
she describe any other distinguishing features of the
rapist. Appellant is a Black [sic] male, 5'5" tall,
and weighed 172 pounds. At the time of the rape, he
had a slight mustache and an intermittent problem with
razor bumps. Neither SPC P nor Mrs. P knew appellant.
While Mrs. P was being raped, she tried to remove
her assailant's cap to get a better look at his face.
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He knocked her hand away, covered her eyes, and told
her not to look at him. Thereafter, he told her to
roll over onto her front, so her face was in her
pillow. He continued to engage in sexual intercourse
until he ejaculated. Mrs. P's bedroom was dark; she
is near-sighted and was not wearing her glasses during
the rape.
. . . .
Mrs. P's vagina was swabbed as part of the rape
kit procedure and the swabs and her panties were sent
to the [United States Army Criminal Investigation
Laboratory (USACIL)] for testing. At USACIL, lab
personnel found semen on Mrs. P's panties and on the
vaginal swabs. Testing revealed that the rapist had
blood-type B, which matched appellant's blood type.
Blood-type B is shared by approximate 19% of the total
Black [sic] population. Specialist P and three other
possible suspects did not have blood-type B.
Id. at 522-23 (footnotes omitted).
Mrs. P was presented with several line-ups as an
opportunity to identify her assailant. During a physical line-
up which did not include Appellant, Mrs. P identified an
individual, whom she knew socially, as closely resembling her
rapist. Mrs. P noted that the individual was not actually the
rapist. Mrs. P was also shown Appellant’s picture in a
photographic line-up, but did not identify him as the rapist.
Nearly two months after the rape, early on the morning of
May 5, 1995, a vehicle was seen leaving the Fort Riley Child
Development Center (CDC), reportedly carrying a black male who
had acted suspiciously in the CDC parking lot on an earlier
occasion. Appellant was identified as the owner of that
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United States v. Mason, No. 03-0259/AR
vehicle. CDC staff noted the incident because they were on
alert for suspicious behavior due to some recent purse
snatchings from parked vehicles.
In August, a military police investigator reported to the
CID that Appellant matched the assailant’s description provided
by Mrs. P. The CID subsequently obtained a search authorization
from a military magistrate to seize a sample of Appellant’s
blood. The sample was sent to the crime laboratory, which
matched Appellant’s blood to the semen evidence obtained from
Mrs. P. As a result of the match, Appellant was charged with
the crimes against Mrs. P.
DISCUSSION
I. The Military Judge did not Err in Denying the Defense
Motion to Suppress Blood Test Results and Related DNA
Evidence
The search authorization for Appellant’s blood sample was
issued by Captain Oclander at Fort Bragg, North Carolina,
following Appellant’s reassignment to that post. Captain
Oclander was appointed to be a part-time magistrate shortly after
she arrived on post as a judge advocate. The authorization was
based on information provided to Captain Oclander by CID agent
Eric Bruce, who submitted an affidavit and made an oral statement
to Captain Oclander to support his search authorization request.
The information he provided to Captain Oclander included the
following key points:
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United States v. Mason, No. 03-0259/AR
• Appellant was identified as the owner of a car that
was hastily driven away from the Child Development
Center on Fort Riley, after the driver was questioned
by the Military Police about recent purse snatchings.
• Appellant was a stocky, black male between five foot
four and five foot six, and therefore matched the
general description of the rapist provided by Mrs. P.
• Appellant’s military specialty required that he be
issued Nomex gloves, and a Nomex glove had been left
by the assailant at the rape scene.
• Appellant lived on post approximately one to two
blocks from where the rape victim lived.
• Appellant had type B blood, which was the blood type
of the person who left semen in Mrs. P.
Agent Bruce based his affidavit and request in part on
information he obtained from a CID agent assigned to the case.
At trial, Captain Oclander was asked which specific facts were
important to her when she issued the search authorization. She
responded:
The description was important, the Nomex glove was
important, the location of his residence in relation
to the victim’s residence, the blood type in relation
to the assailant’s blood type, and the fact that
because of his being seen at the Child Development
Center on several occasions would have given him
perhaps an opportunity to have been at the scene that
day.
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United States v. Mason, No. 03-0259/AR
Appellant moved at trial to suppress his blood sample from
evidence, arguing that the authorization issued to obtain the
sample was invalid because the magistrate lacked probable cause
to issue the authorization, and the CID omitted material
exculpatory information from the affidavit presented to the
magistrate in support of the authorization. The judge denied
Appellant’s motion to suppress, concluding as follows:
Assessing all of these things from the
perspective of whether there’s probable cause, with
all of these clarifications and amplifications that
the defense complains were left out of the information
provided, is not only sufficient, in my judgment to
provide probable cause, but it is more than a basis
for reasonable belief that if Staff Sergeant Mason was
examined, evidence might be obtained.
Further, as the 11th Circuit formulation cited by
the defense, it provides more than a fair possibility
of finding such evidence by a search of Staff Sergeant
Mason’s person for blood samples or other bodily
fluids. That’s not to say that it rises to the level
of being clear and convincing evidence of his guilt,
but that is not the standard for judging this.
The approach that I’ve just used is taken by
extension from M.R.E. 311(g)(2), but it is also taken
from the case cited by the defense, which is included
in the record as an appellate exhibit from yesterday’s
session, State of South Carolina versus Missouri,
where the court excluded the false information and
inserted the exculpatory information and evaluated
whether, taken in that light, there remained a
substantial basis upon which the Magistrate could have
found probable cause to issue the warrant. Applying
that analysis, I don’t believe that there’s any reason
that probable cause cannot be found within this
information. And my conclusion of law is that there
was probable cause. Accordingly, the defense motion
to suppress is denied.
8
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This Court now reviews for an abuse of discretion the
military judge’s decision to admit the blood sample into
evidence. United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F.
1995). We hold, first, that the magistrate had probable cause
to issue the search authorization for Appellant’s blood, and,
second, that Appellant has failed to meet his substantial burden
under Franks v. Delaware, 438 U.S. 154 (1978), to show that the
information allegedly omitted from the CID affidavit would have
extinguished probable cause had that information been included.
Consequently, the military judge did not abuse his discretion in
denying Appellant’s motion to suppress.
A. The Magistrate had Probable Cause to Issue the Search
Authorization for Appellant’s Blood Sample
Appellant first avers that the information based on which
the military magistrate issued the search authorization for
Appellant’s blood sample was insufficient to establish probable
cause. We disagree.
“Nonconsensual extraction of blood from an individual may
be made pursuant to a valid search authorization, supported by
probable cause.” United States v. Carter, 54 M.J. 414, 418
(C.A.A.F. 2001)(citing Military Rule of Evidence 312(d)
[hereinafter M.R.E.]). M.R.E. 315(f)(2) provides that
“[p]robable cause to search exists when there is a reasonable
belief that the person, property, or evidence sought is located
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United States v. Mason, No. 03-0259/AR
in the place or on the person to be searched.” A probable cause
determination is precisely
a practical, common-sense decision whether, given all
the circumstances set forth in the affidavit before
him, including the “veracity” and “basis of knowledge”
of persons supplying hearsay information, there is a
fair probability that contraband or evidence of a
crime will be found in a particular place.
Illinois v. Gates, 462 U.S. 213, 238 (1983)(emphasis added).
“[T]he duty of a reviewing court is simply to ensure that the
magistrate had a ‘substantial basis for . . . [concluding]’ that
probable cause existed.” Id. at 238-39 (quoting Jones v. United
States, 362 U.S. 257, 271 (1960)).
Importantly, “a determination of probable cause by a
neutral and detached magistrate is entitled to substantial
deference.” United States v. Maxwell, 45 M.J. 406, 423
(C.A.A.F. 1996)(quoting United States v. Oloyede, 982 F.2d 133,
138 (4th Cir. 1993)). “[R]esolution of doubtful or marginal
cases . . . should be largely determined by the preference . . .
[for] warrants. . . . Close calls will be resolved in favor of
sustaining the magistrate's decision.” United States v. Monroe,
52 M.J. 326, 331 (C.A.A.F. 2000)(quoting Maxwell, 45 M.J. at
423). “A grudging or negative attitude by reviewing courts
towards warrants . . . is inconsistent with the Fourth
Amendment's strong preference for searches conducted pursuant to
a warrant.” Gates, 462 U.S. at 236 (citations omitted).
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In reviewing a probable cause determination, courts should
consider “the information made known to the authorizing official
at the time of his decision . . . [which] must be considered in
the light most favorable to the prevailing party.” Carter, 54
M.J. at 418 (citations omitted). The magistrate could also
consider information known to her personally. M.R.E.
315(f)(2)(C). Thus, the key inquiry is whether all the
information presented in the affidavit and orally by CID agent
Bruce or known to the magistrate personally, considered
cumulatively, was sufficient to show a fair probability that
evidence of a crime would be found in the place to be searched –
in this case, DNA evidence found in Appellant’s blood.
“[C]ourts should not invalidate the warrant by interpreting the
affidavit in a hypertechnical, rather than a commonsense,
manner.” United States v. Ventresca, 380 U.S. 102, 109 (1965).
The military magistrate testified that the following
evidence influenced her probable cause determination:
The description was important, the Nomex glove was
important, the location of his residence in relation
to the victim’s residence, the blood type in relation
to the assailant’s blood type, and the fact that
because of his being seen at the Child Development
Center on several occasions would have given him
perhaps an opportunity to have been at the scene that
day.
We agree with the military judge that, in noting the totality of
these circumstances and applying her common sense, the
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United States v. Mason, No. 03-0259/AR
magistrate had a substantial basis to conclude that probable
cause existed. Indeed, the information based on which the
magistrate issued the search authorization, considered
cumulatively, supported a reasonable belief that evidence of a
crime, in the form of DNA, would likely be found in Appellant –
who had the physical features and blood type of the rapist, who
was known to have owned gloves similar to those left at the
crime scene, who lived near the victim, and who was identified
as the owner of a car seen near the crime site at the same time
of day as the crime, albeit almost two months later, thus
“giv[ing] [Appellant] perhaps an opportunity to have been at the
scene that day.”
Accordingly, we find no error in the military judge’s
denial of Appellant’s motion to suppress the blood sample on the
grounds that probable cause was lacking. United States v.
Allen, 53 M.J. 402, 408 (C.A.A.F. 2000)(military judge’s
findings of fact on probable cause “are binding unless they are
clearly erroneous”).
B. Appellant has Failed to Demonstrate that the Information
Omitted from the Affidavit Would Have Extinguished
Probable Cause had it been Included
Appellant also asserts that the CID intentionally or
recklessly omitted material information from the affidavit
supporting the search authorization, thereby rendering the
authorization invalid. We disagree.
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M.R.E. 311(g)(2) addresses a motion to exclude evidence
obtained from a search authorization which allegedly contained
false information. The rule provides:
If the defense makes a substantial preliminary showing
that a government agent included a false statement
knowingly and intentionally or with reckless disregard
for the truth in the information presented to the
authorizing officer, and if the allegedly false
statement is necessary to the finding of probable
cause, the defense, upon request, shall be entitled to
a hearing.
M.R.E. 311(g)(2) (emphasis added). “[I]f [the defense shows
intentional or reckless disregard], and if, when material that
is the subject of the alleged falsity or reckless disregard is
set to one side, there remains sufficient content in the warrant
affidavit to support a finding of probable cause, no hearing is
required.” Franks, 438 U.S. at 171-72. Neither M.R.E.
311(g)(2) nor Franks expressly extends to omissions. Logically,
however, the same rationale extends to material omissions.
“Franks protects against omissions that are designed to mislead,
or that are made in reckless disregard of whether they would
mislead, the magistrate.” United States v. Colkley, 899 F.2d
297, 301 (4th Cir. 1990).
Importantly, for an accused to receive a hearing, and
therefore potential relief, on these grounds, the defense must
demonstrate that the omissions were both intentional or
reckless, and that their hypothetical inclusion would have
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United States v. Mason, No. 03-0259/AR
prevented a finding of probable cause. United States v.
Figueroa, 35 M.J. 54, 56-57 (C.M.A. 1992). Indeed, “[e]ven if a
false statement or omission is included in an affidavit, the
Fourth Amendment is not violated if the affidavit would still
show probable cause after such falsehood or omission is redacted
or corrected.” United States v. Gallo, 55 M.J. 418, 421
(C.A.A.F. 2001)(quoting Technical Ordnance, Inc. v. United
States, 244 F.3d 641, 647 (8th Cir. 2001))(emphasis added).
Appellant contends that the CID agents intentionally or
recklessly withheld the following material, exculpatory
evidence:
• During a physical line-up that did not include
Appellant, Mrs. P identified another soldier, whom she
knew socially, as closely resembling the rapist,
though she stated he was not actually the rapist.
During a photographic line-up that did include
Appellant’s picture, Mrs. P was unable to identify the
rapist.
• A latent fingerprint lifted from the inside front
doorknob at the P’s residence did not match
Appellant’s fingerprints.
• Appellant had a prominent gold front tooth that was
missing from Mrs. P’s physical description of her
attacker.
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• Appellant had turned in a pair of Nomex gloves when he
was reassigned to Fort Bragg.
• Nomex gloves are not unique, are issued to a majority
of soldiers at Fort Riley, and are readily available
in stores around the Fort Riley area.
• Nearly twenty percent of the black population has
type-B blood.
• Appellant had been cleared of any suspicion relating
to the CDC incident.
The military judge found that Appellant had not made even a
prima facie showing that the omissions were reckless or
intentional. Such a determination is a finding of fact that is
binding on this Court unless it is shown to be clearly
erroneous. United States v. Cravens, 56 M.J. 370, 375 (C.A.A.F.
2002); Allen, 53 M.J. at 408.
We do not find the military judge’s determination
erroneous. Moreover, for the reasons set forth below, we hold
that even if this information had been included in the
affidavit, none of it would have prevented a finding of probable
cause. Accordingly, the military judge did not err in denying
Appellant’s motion to suppress the DNA evidence on the grounds
that material information was intentionally or recklessly
omitted from the affidavit based on which the magistrate made
her probable cause determination.
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First, the victim was nearsighted and was not wearing her
glasses at the time of the rape, which occurred in a dark room
by an assailant wearing a cap partially obscuring his face. The
victim’s inability to identify Appellant in a photographic
line-up was consistent with the poor visibility at the time of
the rape, and therefore its inclusion on the affidavit would not
have extinguished probable cause. These same circumstances
mitigate the victim’s inability to describe her rapist as having
a gold front tooth. As to the latent fingerprint, the fact that
another individual at some point in time touched the victim’s
doorknob has little impact on the likelihood that Appellant
might have been in the victim’s bedroom. Similarly, that
Appellant had turned in a pair of Nomex gloves, and that other
servicemembers own Nomex gloves, fails to invalidate the other
indicators of Appellant’s probable presence in the victim’s
room, including Mrs. P’s physical description of her assailant,
the proximity of Appellant’s residence to the crime scene, and
the match of Appellant’s blood type to that of the assailant.
As to the CDC incident, the details of the sighting and the lack
of any subsequent prosecution for the purse snatchings do not
nullify the value of the related information that was included,
which located both Appellant’s car and a man fitting Appellant’s
description at a site near the victim’s house at the same time
of day when the rape occurred, albeit almost two months later.
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Finally, including the information that only a small percentage
of the black population has Appellant’s type B blood – a mere 19
percent – would likely have increased probable cause for the
search authorization, by diminishing the number of possible
suspects. To this end, the information before the magistrate
also excluded other material information which would have
favored the Government, such as the fact that the CID designated
its pool of suspects based on proximity to the crime scene,
physical description, and behavior, and that the Government
considered four of these suspects before Appellant.
To reiterate the gist of probable cause: “[P]robable cause
deals ‘with probabilities. These are not technical; they are
the factual and practical considerations of everyday life on
which reasonable and prudent men, not legal technicians,
act[.]’” Gates, 462 U.S. at 241 (quoting Brinegar v. United
States, 338 U.S. 160, 175 (1949))(emphasis added). The
magistrate considered the following factors, in combination, to
find probable cause:
• The physical proximity of Appellant’s residence to the P
residence.
• The match of Appellant’s blood type to that of the
assailant.
• The Nomex glove found at the crime scene being similar to
the gloves issued to Appellant.
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United States v. Mason, No. 03-0259/AR
• The similarity in times between the rape and the CDC
incident.
We acknowledge that agent Bruce should have brought the
information about the line-ups to the military magistrate’s
attention. Nevertheless, we conclude that under the facts of
this case, the failure to do so did not invalidate the probable
cause determination. Although this is a close case, we are
convinced that the cumulative impact of the information before
the magistrate was sufficient to yield probable cause that
Appellant’s blood did contain DNA evidence identifying him as
the rapist, and, for the reasons listed above, that the
inclusion of the excluded information would not have
extinguished this probable cause.
II. The Government’s Question to its DNA Expert about Further
DNA Testing Constituted Harmless Error which Failed to
Prejudice Appellant
During trial, defense counsel cross-examined the
Government’s DNA expert as follows:
Q: Now, the NRC discusses that perhaps one way of
quality assurance would be a second lab test, send the
samples to a second lab, correct?
A: Yes, sir.
Q: Obviously, you don’t do that at USACIL.
A: No, sir.
Q: But would you agree that if that was done, that
that might increase the confidence in the level of
testing if there was [sic] similar results?
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United States v. Mason, No. 03-0259/AR
A: I believe so, sir, yes.
During the redirect examination of the Government’s DNA
expert, the following exchange took place:
Q: . . . [A]re there samples remaining on the panties
of Mrs. [P] and on the vaginal swabs from Mrs. [P]
that could be used for additional testing[?]
A: Yes.
Q: Has there been a request by either party?
Defense counsel objected to this question as outside the
scope of his cross-examination and as an improper attempt by the
Government to shift the burden of proof to the defense. The
military judge requested a sidebar conference about the
objection, during which trial counsel argued: “There’s a clear
implication here that had the test been re-done under the new
standards, that there may have been a different result.”
Without explanation, the military judge overruled both
objections, and allowed redirect examination of the DNA expert
to continue, as follows:
Q: Again, were there any requests by either party to
re-test the samples?
A: Not to my knowledge, no.
The Army Court addressed the two objections raised by the
defense at trial. The court first concluded that “defense
counsel’s cross-examination of [the DNA expert] opened the door
for trial counsel’s question about DNA retesting by raising the
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United States v. Mason, No. 03-0259/AR
issue of whether further testing of the available DNA material
from the rape could have exonerated appellant.” Id. at 526-27.
The court further concluded that even if trial counsel’s
question and the expert’s response were determined to be error,
the military judge’s “instructions to the members immediately
before deliberations rendered any error harmless.” Id. at 527.
Appellant now asserts that the military judge erred in
overruling the defense objection when the Government asked the
DNA expert if the defense had requested that the evidence be
retested, contending that the question improperly sought to
shift the burden of proof to the defense. In this regard,
Appellant claims the Government improperly suggested to the
members that if the accused were innocent, he should have proven
so by having the DNA evidence retested. Appellant also asserts
that the court below erred by holding that the defense opened
the door for the Government’s question about DNA retesting by
raising the issue of whether further testing of the DNA material
could have exonerated him.
Importantly, this is not a case in which the Government
sought to counter the defense challenge to the reliability of
the test by eliciting testimony as to why an additional test was
unnecessary, or to reinforce the 1 in 240 billion chance that
someone other was the source of the DNA found at the crime
scene.
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We hold, first, that the military judge erred in permitting
trial counsel’s redirect examination of the DNA expert on the
issue of whether either party had requested a retest. “The Due
Process Clause of the Fifth Amendment to the Constitution
requires the Government to prove the defendant’s guilt beyond a
reasonable doubt.” United States v. Czekala, 42 M.J. 168, 170
(C.A.A.F. 1995). Therefore, “[t]he burden of proof to establish
the guilt of the accused is upon the Government.” Rule for
Courts-Martial 920(e)(5)(D). In the case at bar, trial
counsel’s question to the DNA expert of whether either party had
requested a retest suggested that Appellant may have been
obligated to request a retest, and therefore obligated to prove
his own innocence. In so doing, trial counsel improperly
implied that the burden of proof had shifted to Appellant, in
violation of due process.
For this Court to affirm despite an error of
constitutional dimension, such as this one, the error must be
“harmless beyond a reasonable doubt.” United States v. Bins, 43
M.J. 79, 86 (C.A.A.F. 1995)(quoting Chapman v. California, 386
U.S. 18, 24 (1967)). The essential question is “what effect the
error had or reasonably may be taken to have had upon the
[court’s] decision.” Kotteakos v. United States, 328 U.S. 750,
764 (1946). For the following reasons, we further hold that the
military judge’s permission of trial counsel’s improper redirect
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United States v. Mason, No. 03-0259/AR
examination of the DNA expert was harmless beyond a reasonable
doubt. See United States v. Blocker, 32 M.J. 281, 284 (C.M.A.
1991)(noting that in resolving many questions courts may draw
reasonable inferences from the evidence of record).
First, the evidentiary strength of the DNA evidence in this
case was overwhelming. The expert witness interpreting the DNA
evidence established at trial that the odds of an individual
other than Appellant having been the source of the semen found
in Mrs. P were an extremely small 1 in 240 billion. The defense
mounted a weak challenge to the DNA evidence, alleging through
cross-examination of the expert witness that the DNA test was
prone to error, and that a second test under new standards could
have increased the accuracy of the results. The statistical
evidence of the likelihood that Appellant was the source of the
semen found in Mrs. P, and the failure of the defense to
discount this likelihood, rendered the military judge’s error in
permitting trial counsel’s improper question during redirect
examination of the DNA expert harmless beyond a reasonable
doubt.
Moreover, after closing arguments, the military judge
instructed the members as follows:
Lastly, the burden of proof to establish the
guilt of the accused beyond a reasonable doubt is on
the government. The burden never shifts to the
accused to establish his innocence or to disprove
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United States v. Mason, No. 03-0259/AR
those facts which are necessary to establish each
element of any particular offense.
(Emphasis added.) See Article 51(c)(4), UCMJ, 10 U.S.C. §
851(c)(4) (2000)(requiring the military judge to instruct the
members “that the burden of proof to establish the guilt of the
accused beyond a reasonable doubt is upon the United States”);
United States v. Clay, 1 C.M.A. 74, 80, 1 C.M.R. 74, 80
(1951)(defining the importance of instructing the members on the
proper burden of proof). These instructions followed trial
counsel’s own reiteration of the burden of proof during closing
argument: “This isn’t to say that the government is relieved of
the burden beyond a reasonable doubt to prove those elements.
The government doesn’t suggest that. The government is burdened
by that burden of proof.” As Appellant concedes, at no point
during trial other than in the redirect examination of the DNA
expert did the Government suggest the burden of proof might have
shifted. Cf. Hayes v. State, 660 So.2d 257, 265-66 (Fla.
1995)(government improperly shifted burden of proof to accused
through redirect of crime lab expert on issue of blood stain
test raised by defense on cross-exam of expert plus related
comments made during government’s closing argument). For these
additional reasons, the error was harmless beyond a reasonable
doubt.
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United States v. Mason, No. 03-0259/AR
DECISION
The decision of the United States Army Court of Criminal
Appeals is affirmed.
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