United States v. Clark , 69 M.J. 438 ( 2011 )

UNITED STATES, Appellee
v.
Christopher J. CLARK, Senior Airman
U.S. Air Force, Appellant
No. 10-0588
Crim. App. No. 37499
United States Court of Appeals for the Armed Forces
Argued December 15, 2010
Decided March 7, 2011
BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, STUCKY, and RYAN, JJ., joined.
Counsel
For Appellant: Captain Nicholas W. McCue (argued); Lieutenant
Colonel Gail E. Crawford and Major Anthony D. Ortiz (on brief);
Colonel Eric N. Eklund.
For Appellee: Captain Michael T. Rakowski (argued); Colonel Don
Christensen, Captain Joseph J. Kubler, and Gerald R. Bruce, Esq.
(on brief).
Military Judge: William E. Orr Jr.
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Clark, No. 10-0588/AF
Judge BAKER delivered the opinion of the Court.
At a general court-martial convened at Holloman Air Force
Base, New Mexico, a panel composed of officer and enlisted
members convicted Appellant, contrary to his pleas, of one
specification of attempting to communicate indecent language to
a child under the age of sixteen and one specification of using
the Internet to transfer sexually explicit electronic images to
a person he believed had not attained the age of sixteen, in
violation of Articles 80 and 134, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §§ 880, 934 (2006). The adjudged and
approved sentence consists of a bad-conduct discharge,
confinement for eighteen months, reduction to E-1, and a
reprimand.
On review, the United States Air Force Court of Criminal
Appeals affirmed. United States v. Clark, No. ACM 37499, 2010
CCA LEXIS 182, at *20, 2010 WL 2265672, at *7 (A.F. Ct. Crim.
App. Apr. 30, 2010).
We granted review of the following issues:
I. WHETHER IT WAS PLAIN ERROR FOR TRIAL COUNSEL TO
ELICIT TESTIMONY THAT APPELLANT DID NOT RESPOND
VERBALLY WHEN ARRESTED, AND THEN RELY ON THIS
TESTIMONY DURING CLOSING ARGUMENT.
II. WHETHER THE MILITARY JUDGE COMMITTED
CONSTITUTIONAL ERROR THAT WAS NOT HARMLESS BEYOND
A REASONABLE DOUBT WHEN HE OVERRULED DEFENSE
COUNSEL’S OBJECTION DURING TRIAL COUNSEL’S
IMPROPER REBUTTAL ARGUMENT.
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For the reasons set forth below, we conclude that it
was plain or obvious error for trial counsel to elicit
testimony of Appellant’s failure to respond verbally to an
accusation when apprehended and then rely on this testimony
in his closing argument. We further conclude that the
military judge committed constitutional error when he
overruled Appellant’s objection during trial counsel’s
improper rebuttal argument. However, we also conclude that
these violations were harmless beyond a reasonable doubt.
Therefore, we affirm the United States Air Force Court of
Criminal Appeals.
I. BACKGROUND
A. The Investigation
On April 25, 2008, Appellant entered a Yahoo chat room from
his personal computer on base under the username
“thedude94_2000” and initiated a conversation with
“cuti3pi32008,” an undercover officer who identified himself as
a thirteen-year-old girl named “Suzie.” Upon adding each other
as “friends,” Appellant’s subsequent messages to “Suzie” showed
up as “Chris Clark.” During the course of their messaging,
Appellant sent “Suzie” erotic images, engaged in sexual
conversation, and ultimately invited “Suzie” to have sex and
asked for her address and phone number. The officer gave
Appellant a phone number and the address to a decoy house.
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Appellant never went to the house, called the phone number, or
communicated with “Suzie” again.
Appellant’s identity was confirmed with a photograph from
the Defense Enrollment Eligibility Reporting System (DEERS), and
agents and security forces went to Appellant’s home later that
night. They detained him outside while they performed an
initial sweep of his home for other occupants. Special Agent
(SA) Billy Garcia, one of the agents who conducted the sweep,
testified in response to trial counsel’s questions that after
performing the initial sweep, the agents returned to Appellant
and “told him that we had been notified that he had been
sexually communicating with a minor; a child.” He further
testified that in response, “[Appellant] didn’t say anything, he
kind of just put his head down and kind of just looked down” and
slumped his shoulders. The agents and security forces then went
with Appellant back into the home, where agents searched for
evidence and found a notebook near Appellant’s computer in which
was written “thedude94_2000.”
Senior Airman Eric Clark, a member of the security forces,
testified that he and his partner escorted Appellant into
another room in the house, “where we sat him down and we were to
watch him while they completed searching the house.” He further
testified that while they were watching Appellant, Appellant
made an unsolicited statement “that he had spoken to a minor on
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the Internet. That the girl was -- he said that he knew that
she was underage” and “that he suspected she was a cop.”
Appellant was subsequently transported to OSI to be
interviewed by agents. At that point, OSI agents read Appellant
his rights pursuant to Article 31, UCMJ, 10 U.S.C. § 831 (2006),
for the first time. SA Garcia testified that during the
interview he “[t]old [Appellant] the same thing that we told him
earlier at his home. That he was suspected of communicating
sexually with a minor.” When trial counsel asked, “And did he
say anything in response to you this time?” SA Garcia responded,
“No he didn’t.” At some point, Appellant elected not to have an
attorney present and agreed to answer questions. Appellant
admitted that his username was “thedude94_2000,” that he knew
“cuti3pi32008” was thirteen, that he had sent her the images,
and that he used sexually explicit language. Appellant also
provided a sworn written statement of these admissions:
The 25th of April 2008 I was talking to a 13 yr old from
Clovis NM. I started of [sic] talking about who is she and
where she’s from. Then I asked sexuall [sic] questions
such as you ever been with a guy. She said yes and I asked
how old was he. Then I asked more questions such as you
want to see pictures. She said sure. So I showed her 7 to
8 pictures. 3-4 were of a girl on a bed. Covered in 2 and
showing in the other 2. Then I also showed 3 intercourse
pictures. 1 nonintercourse but still nude pics. Then I
asked here [sic] where she lived and her phone number. . .
. Of the pics I showed the 13 yr old only one was of me
blowing a kiss.
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Following the interview, while waiting for the first sergeant
to arrive, Appellant commented that the agents “had caught him
red-handed.”
B. Trial Proceedings
At various stages during the trial proceedings, trial
counsel made reference to Appellant’s physical and verbal
responses to the accusations presented by SA Garcia, either by
direct comment or by eliciting a response during examination of
a witness. Appellant cites five specific instances of these
references giving rise to the issues presented in this case.
First, during his opening statement at trial, trial counsel
made the following statement:
You will hear how when confronted with being suspected of
criminally speaking or communicating with a minor with
sexual language, the accused’s shoulders slumped and his
head dropped; chin to chest.
Second, during direct examination of SA Garcia, trial
counsel engaged in the following series of questions regarding
Appellant’s initial apprehension:
[Trial Counsel: W]hat did you tell [Appellant] as to why
the reason you were there?
[Witness:] We told him that we had been notified that he
had been sexually communicating with a minor; a child.
. . . .
[Trial Counsel:] And when you told him that, do you recall
what his response was?
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[Witness:] Yeah, well he didn’t say anything, he just kind
of put his head down and kind of just looked down.
. . . .
[Trial Counsel:] Did he say anything?
[Witness:] No.
Third, trial counsel proceeded to question SA Garcia
regarding his post-rights advisement interview with Appellant:
[Trial Counsel:] Did you ever explain to the accused or
tell the accused why he was there?
. . . .
[Witness: We t]old him the same thing that we told him
earlier at his home. That he was suspected of
communicating sexually with a minor.
[Trial Counsel:] And did he say anything in response to
you this time?
[Witness:] No, he didn’t.
Fourth, during his closing arguments, trial counsel made
the following comments:
[B]efore he’s interviewed with OSI, they go to his house.
Remember that testimony? They go to his house, Agent
Garcia walks up to the accused, and quite clearly the
accused was looking into his eyes. They looked. Agent
Garcia walked up to him and said, you are under suspicion
of criminal communication with a minor. What is the
accused’s response when he’s confronted with this fact?
Does he say, what? Does he say, no? What does he do?
Sometimes body language is just as powerful as verbal
confessions. When he’s confronted with this disgusting
crime that he just committed, his shoulders slump and he
puts his head down. That is a defeated position. He’s
confronted and he’s caught.
. . . .
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But there’s more. He’s taken to OSI, he’s placed in a
room, agents walk into the room, and again they confront
them [sic]. You are under suspicion for criminally
communicating with a minor in a sexual manner. Second
time. Hours later at this point he’s confronted with what
he had just done. And what is his response? Nothing. He
doesn’t respond to that comment.
And finally, following defense counsel’s closing argument,
trial counsel made the following rebuttal argument:
Come on, members. Nobody asked you to leave your common
sense at the door. No one. The defense says the first
thing he says is, “I knew it was a cop.” Was that the
first thing he said? Or was the first thing he said by
body language, a defeated position when he’s confronted
with speaking with a minor. Does he say, wait a minute
Detective Garcia. Hold on there, just a sec. I was just
kidding. I actually knew it was a cop when I sent that
language. Does he say that? I accuse you of speaking
sexually with a child. I accuse you of speaking sexually
with a child. No comments, no denial, no response.
Defense counsel objected only to trial counsel’s rebuttal
argument. In overruling the objection, the military judge said,
“I’m going to overrule it just on the basis that -– in the
context in which he’s using it. So, I’ll overrule your
objection right now, but be careful, trial counsel.”
II. DISCUSSION
A. Direct Examination and Closing Argument
Whether there has been improper reference to an accused’s
exercise of his constitutional rights is a question of law that
we review de novo. United States v. Moran, 65 M.J. 178, 181
(C.A.A.F. 2007) (citing United States v. Alameda, 57 M.J. 190,
198 (C.A.A.F. 2002)). Because the asserted errors regarding
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trial counsel’s references during the opening statement, direct
examination of SA Garcia, and closing argument were not
preserved at trial, this Court reviews them for plain error.
Id.Whether there was plain error is a question reviewed de
novo. Id. To find plain error, Appellant must show that there
is error, that the error was plain or obvious, and that the
error materially prejudiced his substantial rights. See United
States v. Powell, 49 M.J. 460, 463 (C.A.A.F. 1998).
Servicemembers have a constitutional, statutory, and
regulatory right to silence. U.S. Const. amend. V; Article 31,
UCMJ; Military Rules of Evidence (M.R.E.) 304(h)(3); see also
United States v. Carter, 61 M.J. 30, 33 (C.A.A.F. 2005). Thus,
it is settled that the government may not use a defendant’s
exercise of his Fifth Amendment rights as substantive evidence
against him. United States v. Gilley, 56 M.J. 113, 120
(C.A.A.F. 2001) (citing Griffin v. California, 380 U.S. 609,
614) (1965)). M.R.E. 304(h)(3) safeguards this right, further
providing:
A person’s failure to deny an accusation of wrongdoing
concerning an offense for which at the time of the alleged
failure the person was under official investigation or was
in confinement, arrest, or custody does not support an
inference of an admission of the truth of the accusation.
Thus, in Alameda, we held that, “based on the language of Mil.
R. Evid. 304(h)(3) and what we perceive to be the weight of
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authority in the federal circuits,” it is constitutional error
“to introduce evidence of appellant’s post-apprehension silence
as substantive evidence of guilt, and to then comment on that
evidence in closing argument.” 57 M.J. at 199. “A lack of
response or reaction to an accusation is not ‘demeanor’
evidence, but a failure to speak.” Id. (citing United States v.
Velarde-Gomez, 269 F.3d 1023, 1028 (9th Cir. 2001)).
The lower court distinguished this case from Alameda on the
basis that “[u]nlike the accused in Alameda, the appellant’s
response,” as described in testimony and by trial counsel, “was
not mere silence, but instead a clear physical reaction without
words.” Clark, 2010 CCA LEXIS 182, at *16, 2010 WL 2265672, at
*6. Therefore, the CCA concluded it constituted “proper
demeanor evidence. . . . [that] is admissible to show the
accused’s consciousness of guilt and . . . is a proper subject
of comment by counsel.” Id. The lower court further concluded,
“[a]rguably, the question ‘what did he say’ crossed the line”
and “trial counsel also made passing reference to the
appellant’s lack of verbal response during his argument;
however, it is clear from the context of the argument that the
comment was in fact focused on the demeanor evidence.” Id. at
*16-*17, 2010 WL 2265672, at *6.
The central question in this case is whether some or all of
the testimony and statements by trial counsel refer to
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Appellant’s right to silence, or whether they are more
accurately described as testimony and statements regarding
Appellant’s nontestimonial demeanor. We disagree with the
court’s conclusion that the focus of the statements was on the
nontestimonial character of the demeanor evidence, or that such
“focus” is determinative on this issue. We turn first to the
subject of demeanor evidence.
I. Demeanor Evidence
In light of the CCA’s analysis of “demeanor evidence,” we
begin with a review of the law regarding the admissibility of an
accused’s demeanor in light of established Fifth Amendment and
relevance principles. In doing so, we recognize that the lines
between the various categories of demeanor are not always clear.
See United States v. Pope, 69 M.J. 328, 334 (C.A.A.F. 2011).
Thus, it is also necessary for us to establish a framework
within which to analyze its admissibility.
“Demeanor” evidence is evidence that describes or portrays
“[o]utward appearance or behavior, such as facial expressions,
tone of voice, gestures, and the hesitation or readiness to
answer questions.” Black’s Law Dictionary 496 (9th ed. 2009).
In its traditional sense, demeanor merely refers to the
nonverbal conduct of a testifying witness or of the accused
while on the witness stand or in the courtroom, rather than
evidence counsel may seek to formally admit under the rules of
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evidence. See 1A Wigmore on Evidence § 24, at n.5 (Tiller rev.
1983); United States v. Cook, 48 M.J. 64, 66 (C.A.A.F. 1998)
(citing 2 Wigmore on Evidence § 274(2) at 119-20 (Chadbourne
rev. 1979) (“the attempt to force a jury to become mentally
blind to the behavior of the accused sitting before them
involves both an impossibility in practice and a fiction in
theory”)). However, demeanor evidence may also include physical
evidence (a photograph) or real evidence, as in the case of
physical observations made by a witness testifying, including
other exemplars used to identify the accused (e.g., where the
suspect was made “‘to stand, to assume a stance, to walk, or to
make a particular gesture’”). Pennsylvania v. Muniz, 496 U.S.
582, 591 (1990) (quoting Schmerber v. California, 384 U.S. 757,
764-65 (1966)). Furthermore, an accused’s demeanor has been
admitted where it is relevant to an accused’s “consciousness of
guilt” under M.R.E. 404(b), such as in cases of an accused
fleeing from the scene of a crime or destroying evidence, or in
cases of witness or prosecutor intimidation, see, e.g., Moran,
65 M.J. at 188; Cook, 48 M.J. at 66; United States v. Staton, 69
M.J. 228, 230 (C.A.A.F. 2010). These categories of evidence of
an accused’s demeanor are generally nontestimonial and thus
admissible and subject to appropriate comment where relevant
under the rules of evidence.
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Demeanor evidence may also be testimonial, however, such as
where an accused points to the scene of a crime and then to
himself while nodding his head up and down in response to police
questioning. See Muniz, 496 U.S. at 594 (defining “testimonial”
as “‘communication [that] itself, explicitly or implicitly,
relate[s] a factual assertion or disclose[s] information’”
(quoting Doe v. United States, 487 U.S. 201, 210 (1988))).
Testimonial demeanor, like other testimonial evidence in
response to police questioning, implicates an accused’s right to
silence and against self-incrimination, thus triggering the
application of the Fifth Amendment and its statutory and
regulatory safeguards. See Schmerber, 384 U.S. at 761 n.5, 763-
65 (noting that “[i]t is clear that the protection of the
privilege [against self-incrimination] reaches an accused’s
communications, whatever form they might take” and that “[a] nod
or head-shake is as much a ‘testimonial’ or ‘communicative’ act
in this sense as are spoken words”). Even where demeanor is
nontestimonial, improper commentary on the accused’s silence in
response to police questioning when presenting evidence of an
accused’s demeanor may nevertheless implicate the same rights
and protections as testimonial evidence. Cf. Griffin, 380 U.S.
at 615 (holding that the Fifth Amendment “forbids . . . comment
by the prosecution on the accused’s silence”); Alameda, 57 M.J.
at 199. Thus, where the evidence concerns testimonial demeanor
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or includes improper commentary on the accused’s silence, that
demeanor evidence is generally inadmissible under the Fifth
Amendment and its statutory and regulatory safeguards, unless
the accused waives those rights or otherwise invites the
evidence. See, e.g., United States v. Robinson, 485 U.S. 25,
32-34 (1988) (holding that the privilege against self-
incrimination is not violated when the prosecutor’s reference to
the defendant’s silence is a “fair response to a claim made by
defendant or his counsel”).
Based on the foregoing, a framework for assessing the
admissibility of the evidence of an accused’s demeanor emerges.
First, we must identify the demeanor at issue and ask whether
the demeanor is itself testimonial or not testimonial in nature,
or whether evidence of the demeanor at issue includes improper
commentary on the accused’s silence. If evidence of an
accused’s demeanor is testimonial or includes an improper
comment on silence, we analyze the evidence under the Fifth
Amendment or applicable statutory and regulatory safeguards.
Where the evidence is neither testimonial nor an improper
comment on silence, we then consider whether the accused’s
demeanor was relevant under M.R.E. 404(b) or other evidentiary
rules relating to relevance. Therefore, the fact that trial
counsel’s comments were merely “focused on” nontestimonial
demeanor is not dispositive in any case.
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1. Plain Error
In this case, we need not find the fine line that might
exist between nontestimonial demeanor evidence, like a mere
shoulder slump or head shrug, and the shoulder slump or head
shrug that is testimonial and communicative in nature. For
whatever may be inferred from the testimony in this case
regarding Appellant’s physical responses while being questioned
at his home, trial counsel’s questions and statements clearly
and repeatedly used Appellant’s silence and body language as
expressions of guilt. Trial counsel’s comments in his opening
statement, direct examination of SA Garcia, and closing argument
constituted plain error because they clearly commented on
Appellant’s silence in response to SA Garcia’s post-
apprehension, pre-advisement accusation of criminal conduct, in
violation of M.R.E. 304(h)(3) and the Fifth Amendment right to
silence.1 A review of each statement indicates why.
1
Thus, we are also not required to proceed to the second step of
the demeanor analysis and decide here whether Appellant’s
demeanor was relevant to consciousness of guilt under M.R.E.
404(b) or as real or physical evidence. We do note that
demeanor evidence is relevant to an accused’s consciousness of
guilt only in cases where the inference of guilt is clear, see
e.g., Moran, 65 M.J. at 188 (holding that evidence of the
accused shaving all of his body hair after learning that
investigators wanted a hair sample was relevant); Cook, 48 M.J.
at 66 (citing examples of witness intimidation, such as making a
hand gesture in the shape of a gun and mouthing the words
“‘you’re dead’” in the courtroom) (citation omitted); Staton, 69
M.J. at 231 (attempting to run over the prosecutor in the
parking lot). Subtle physical demeanor is not admissible as
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First, trial counsel’s opening statement referred to
Appellant’s reaction -- “shoulders slumped and his head dropped;
chin to chest” -- as his response to being “confronted with
being suspected of criminally speaking or communicating with a
minor with sexual language.” Rather than describe Appellant’s
body movements as one of a series of events to describe what was
happening, trial counsel was conveying that Appellant failed to
deny the accusation.
In addition, during direct examination of SA Garcia, trial
counsel not only elicited explicit comments on Appellant’s
response of silence but explicitly commented on Appellant’s
silence himself in the examination questions. Trial counsel
asked, “[a]nd when you told him [the accusation], do you recall
what his response was?,” and “Did he say anything?” -- to which
SA Garcia replied, “he didn’t say anything,” and “No.”
(Emphasis added.)
Moreover, although Appellant’s response to SA Garcia during
the OSI interview occurred after Appellant waived his rights,
relevant to an accused’s consciousness of guilt, because it is
equally susceptible to other inferences. See Cook, 48 M.J. at
67 (holding that yawning by the accused during testimony of the
effects of child abuse was irrelevant where the appellant was
familiar with the evidence “because he previously had been
counseled by the first sergeant for child abuse”); id. at 66
(citing other examples of irrelevant demeanor by the accused,
such as laughing during testimony that the accused threatened
the life of the President, consulting with counsel during trial,
or moving a leg up and down in a seemingly nervous fashion
during trial).
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trial counsel’s questions and the elicited responses made clear
reference to Appellant’s pre-rights advisement response of
silence. SA Garcia testified “[We t]old him the same thing that
we told him earlier at his home,” to which trial counsel
responded, “And did he say anything in response to you this
time?” (Emphasis added).
Finally, trial counsel relied on these comments in his
closing argument to explicitly argue that Appellant’s silence
evidenced his guilt:
What is the accused’s response when he’s confronted with
this fact? Does he say, what? Does he say, no? What does
he do? Sometimes body language is just as powerful as
verbal confessions. When he’s confronted with this
disgusting crime that he just committed, his shoulders
slump and he puts his head down. That is a defeated
position.
Trial counsel’s closing argument is more direct than the closing
argument made by trial counsel in Alameda:
“. . . And lo and behold, the cops came and picked me up,
and I was just sitting there on the steps, didn’t know what
this was about,” but didn't bother even to ask.
. . . .
[Trial Counsel]: And when Sergeant Moody approaches him on
the steps and says, “Are you Tedio Alameda? Stand up. . .
. Let me see your identification card.” He doesn't even
say, “What’s this all about?”
57 M.J. at 196. The rhetorical questions employed by trial
counsel in each case clearly suggested to the panel that an
innocent person would have said something; therefore, the
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accused’s silence was being used as evidence of guilt. Indeed,
trial counsel stated that Appellant’s demeanor was “body
language [that] is just as powerful as [a] verbal confession[].”
The Fifth Amendment cannot with one hand protect an accused
from being compelled to testify and yet with the other hand
permit trial counsel to argue that an accused’s silent demeanor
in response to an accusation of wrongdoing is tantamount to a
confession of guilt. These kinds of arguments are exactly what
M.R.E. 304(h)(3)2 addresses. As this Court has made clear in
other cases, “[s]uch comments may serve to hinder the free
exercise of such rights -– rights that carry with them the
‘implicit assurance that [their] invocation . . . will carry no
penalty.’” Moran, 65 M.J. at 181 (alteration in original)
(quoting United States v. Daoud, 741 F.2d 478, 480 (1st Cir.
1984)).
A. Rebuttal Argument
The second issue relates to trial counsel’s rebuttal
argument. Unlike the errors related to the first issue,
2
M.R.E. 304(h)(3) provides:
A person’s failure to deny an accusation of wrongdoing
concerning an offense for which at the time of the alleged
failure the person was under official investigation or was
in confinement, arrest, or custody does not support an
inference of an admission of the truth of the accusation.
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Appellant objected to these comments, thus preserving the error
and subjecting it to a separate analysis.
The Government argues that trial counsel’s comments on
rebuttal were invited as fair response to Appellant’s general
argument that Appellant thought “Suzie” was a cop.
“[T]he Government is permitted to make ‘a fair response’ to
claims made by the defense, even when a Fifth Amendment right is
at stake.” Gilley, 56 M.J. at 120 (citing Robinson, 485 U.S. at
32). In order to determine whether trial counsel’s comments
were fair, we must examine them in context. Id. at 121. “In
reviewing the actions of the military judge, we must ask
whether, given the defense theory of the case, trial counsel’s
comments were fair.” Id. at 123.
The theory behind defense counsel’s closing argument was
that Appellant suspected “Suzie” was a law enforcement officer
all along and that he confessed to knowing that “Suzie” was a
thirteen-year-old girl only because that is what he was being
told to do. At one point, defense counsel argued:
What is it that Airman Clark said right from the start? “I
thought it was a cop.” And he didn’t say that because
someone told him that really was a cop you were chatting
with. Because what he was being told is that really was a
13-year-old girl. That really was a 13-year-old girl and
what was his response? “It sounded like a cop; I thought
it was a cop.”
Now in his statements to OSI, trial counsel wants you
to only believe those statements that support their
position on this case. They only want you to believe the
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part in there where Airman Clark refers to the person as a
13-year-old girl. Of course, why is he referring to it as
a 13-year-old girl, that’s what everyone was telling him
that who he was chatting with was a 13-year-old girl.
In rebuttal, trial counsel argued:
The defense says the first thing he says is, “I knew it was
a cop.” Was that the first thing he said? Or was the
first thing he said by body language, a defeated position
when he’s confronted with speaking with a minor. Does he
say, wait a minute Detective Garcia. Hold on there, just a
sec. I was just kidding. I actually knew it was a cop
when I sent that language. Does he say that? I accuse you
of speaking sexually with a child. I accuse you of
speaking sexually with a child. No comments, no denial, no
response.
Trial counsel may use the fact of post-arrest silence “‘to
contradict a defendant who testifies to an exculpatory version
of events and claims to have told the police the same version
upon arrest,’” thus acting not as substantive evidence of guilt
but rather as a “‘challenge [to] the defendant’s testimony as to
his behavior following arrest.’” Gilley, 56 M.J. at 120
(quoting Doyle v. Ohio, 426 U.S. 610, 619-20 n.11 (1976)).
However, trial counsel is prohibited from “‘treat[ing] the
defendant’s silence as substantive evidence of guilt.’” Id. at
121 (quoting Robinson, 485 U.S. at 32); M.R.E. 304(h)(3). That
is what trial counsel did here. He did not merely rebut
Appellant’s assertion that he thought “Suzie” was a law
enforcement officer, he argued through Appellant’s demeanor that
“the first thing he said by body language, a defeated position
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when he’s confronted with speaking with a minor. . . . No
comments. No denial. No response.”
This is not a scenario where Appellant testified to making
an exculpatory statement to the police after his arrest, when in
fact he did not. Nor did defense counsel argue that the “first”
thing Appellant said was, “I thought it was a cop.” Defense
counsel could not have made that argument for obvious reasons.
He was relying on Senior Airman Clark’s testimony of Appellant’s
spontaneous unwarned statement that Appellant “had spoken to a
minor on the Internet. That the girl was -- he said that he
knew that she was underage,” and that Appellant “suspected that
she was a cop.” Furthermore, despite defense counsel’s theory,
defense counsel acknowledged in his closing argument that
Appellant made other statements to OSI “referring to [“Suzie”]
as a thirteen-year-old girl.” Thus, taken in context, defense
counsel’s closing argument did not invite trial counsel to argue
what Appellant said “first,” or rather what Appellant said
“first” through “body language.” Such statements went beyond
what was permissible as fair response and used Appellant’s
demeanor and silence as evidence of guilt. Under Alameda this
is constitutional error.
A. Harmlessness
“For constitutional error, we must be satisfied beyond a
reasonable doubt that the error was harmless.” Alameda, 57 M.J.
21United States v. Clark, No. 10-0588/AF
at 199-200. Whether the errors in this case were preserved or
unpreserved, our review of the facts results in the same
conclusion: any errors in this case were harmless beyond a
reasonable doubt.
The Government’s case against Appellant was supported by
substantial evidence. Appellant was positively identified by
his name and contact information online after Appellant became
“friends” with “Suzie.” His online information was later
visually matched through the DEERS, and confirmed upon the OSI
agents’ arrival at Appellant’s home. OSI agents recovered
Appellant’s notebook near his computer containing the same user
name Appellant had used to communicate with “Suzie.” Appellant
spontaneously remarked to Senior Airman Clark that he knew that
“Suzie” was underage. And, Appellant affirmatively waived his
Fifth Amendment rights at the OSI office, admitting both in the
interview and in a sworn statement to sexual communications with
someone he believed to be thirteen years old. Appellant’s case,
on the other hand, rests entirely on the fact that Appellant
stated that “he suspected [“Suzie”] was a cop,” without being
able to contradict any of the Government’s evidence.
III. CONCLUSION
For the foregoing reasons, the decision of the United
States Air Force Court of Criminal Appeals is affirmed.
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