United States v. Chisum ( 2018 )


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  •       This opinion is subject to revision before publication
    UNITED STATES COURT OF APPEALS
    FOR THE    ARMED FORCES
    _______________
    UNITED STATES
    Appellee
    v.
    Ricky D. CHISUM, Jr., Senior Airman
    United States Air Force, Appellant
    No. 17-0199
    Crim. App. No. S32311
    Argued December 5, 2017—Decided January 26, 2018
    Military Judge: Marvin Tubbs
    For Appellant: Major Jarett Merk (argued); Colonel Jane
    E. Boomer.
    For Appellee: Major Mary Ellen Payne (argued); Colonel
    Katherine E. Oler (on brief); Lieutenant Colonel Joseph
    Kubler and Gerald R. Bruce, Esq.
    Amicus Curiae for Appellee: Peter Coote, Esq. (on
    brief) – for Protect Our Defenders.
    Chief Judge STUCKY delivered the opinion of the
    Court, in which Judges RYAN, OHLSON, and SPARKS,
    and Senior Judge EFFRON, joined.
    _______________
    Chief Judge STUCKY delivered the opinion of the Court.
    We granted review to determine whether the military
    judge’s failure to conduct an in camera review and to require
    disclosure of the mental health records of the two primary
    witnesses against Appellant deprived him of his right to con-
    front those witnesses in violation of the Sixth Amendment to
    the Constitution. U.S. Const. amend. VI. As the military
    judge’s failure did not prejudice Appellant’s substantial
    rights, we need not reach the granted issue. We affirm the
    judgment of the United States Air Force Court of Criminal
    Appeals (CCA).
    I. Procedural History
    Appellant was charged with five offenses: (1) wrongful
    use of ecstasy; (2) wrongful use of marijuana on divers occa-
    United States v. Chisum, No. 17-0199/AF
    Opinion of the Court
    sions; (3) wrongful use of cocaine on divers occasions;
    (4) wrongful use of hydrocodone on divers occasions; and
    (5) wrongful distribution of hydrocodone on divers occasions.
    Article 112a, Uniform Code of Military Justice (UCMJ),
    10 U.S.C. § 912a (2012). A special court-martial composed of
    officer members convicted Appellant, contrary to his pleas,
    by exceptions and substitutions, of the wrongful use of co-
    caine on only one occasion, as witnessed by both Airman
    Basic (AB) AK and AB CR.
    Appellant was sentenced to a bad-conduct discharge, con-
    finement for three months, forfeiture of part of his pay each
    month for three months, and reduction to the lowest enlisted
    grade. The convening authority reduced the period of con-
    finement to forty-nine days but otherwise approved the ad-
    judged sentence.
    On appeal, the CCA held that the military judge abused
    his discretion by not conducting an in camera review of the
    mental health records of two witnesses. United States v.
    Chisum, No. ACM S32311, slip op. at 5, 6 (A.F. Ct. Crim.
    App. Aug. 16, 2016) (order). As the military judge had not
    ordered the mental health records attached to the record of
    trial, the CCA ordered the Government to produce the rec-
    ords so it could determine whether the error prejudiced Ap-
    pellant. 
    Id. at 6.
    The Government submitted a motion to re-
    consider and reconsider en banc and asked the court to stay
    the order until the motion was decided. The court stayed the
    order but eventually denied the motion for reconsideration
    and reconsideration en banc. The Government then provided
    the ordered records. United States v. Chisum, 
    75 M.J. 943
    ,
    946 n.3 (A.F. Ct. Crim. App. 2016). Based on its own review
    of the mental health records, the CCA held that the military
    judge’s failure to conduct an in camera review “did not ma-
    terially prejudice a substantial right of Appellant,” and af-
    firmed. 
    Id. at 945,
    952.
    II. Background
    Appellant went to New Orleans, Louisiana, with two
    other airmen, intending to buy and use ecstasy. 
    Id. at 945.
    AB AK testified that he and Appellant were unable to find
    ecstasy so they purchased a baggie of cocaine and used it in
    an alley by snorting it through a dollar bill rolled up as a
    2
    United States v. Chisum, No. 17-0199/AF
    Opinion of the Court
    straw. 
    Id. When they
    finished the cocaine, they returned to
    the dealer, purchased more cocaine, and used it. 
    Id. AB CR
    testified that, while on a trip to New Orleans with Appellant
    and AB AK, he saw Appellant holding a bag of white pow-
    der, walk “into an alley and, from across the street, saw Ap-
    pellant raise his hands up to his nose.” 
    Id. at 945–46.
        Before trial, Appellant submitted a discovery request
    demanding access to the mental health records of any poten-
    tial witnesses. The prosecution notified the defense that
    mental health records existed on both AB AK and AB CR
    but refused to provide them. After the prosecution released
    its witness list, Appellant moved to compel the production of
    the mental health records of AB AK and AB CR “pursuant to
    Rule for Courts-Martial [(R.C.M.)] 906(b)(13), Military Rule
    of Evidence [(M.R.E.)] 513, the due process clause of the 5th
    Amendment to the United States Constitution, and the con-
    frontation clause of the 6th Amendment to the United States
    Constitution.” The basis for the motion to compel was that
    AB AK and AB CR had each admitted to the defense team
    that, because of his extensive drug use, he had memory is-
    sues and had a mental health diagnosis. 
    Chisum, 75 M.J. at 946
    .
    AB CR invoked the psychotherapist-patient privilege at a
    hearing on the defense motion for production of the records.
    Appellant’s counsel argued that the basis for an in camera
    inspection of AB CR’s records was the Sixth Amendment
    right to confront the witness. “[W]e think it would go toward
    bias of the witness and also we think that the records will
    contain information that he potentially talked about the al-
    legations with mental health providers and he just like just
    made this up.” He also alleged that the mental health rec-
    ords could contain “prior inconsistent statements that he
    has made about the allegations and we need to be able to
    potentially go through that with him on the witness stand.
    Potentially, there is evidence that goes towards bias, preju-
    dice or his motive to misrepresent.”
    Based on the psychotherapist-patient privilege, M.R.E.
    513, AB AK’s counsel asked the military judge to deny Ap-
    pellant’s motion. In response to the military judge’s question
    as to the basis for the defense request for access to AB AK’s
    medical records, Appellant’s counsel stated that AB AK
    3
    United States v. Chisum, No. 17-0199/AF
    Opinion of the Court
    “may have mentioned to his providers that he fabricated the
    whole thing and made the whole thing up, similar to the
    proffer that [AB CR] gave in order to get a deal for his court-
    martial.” Appellant argued that AB AK had admitted that
    he was upset because Appellant had slept with AB AK’s girl-
    friend (now wife), and “potentially there is evidence in the
    records of bias, prejudice, or his motive to misrepresent, and
    allow us to impeach the witness properly.” In another case
    in which AB AK had testified, a military judge had released
    his mental health records to the parties. The transcript of
    AB AK’s testimony and cross-examination at that other
    court-martial was provided to Appellant’s defense counsel.
    The military judge denied the defense motion for in cam-
    era review and production of the medical records. The de-
    fense moved for reconsideration. After the military judge al-
    lowed the defense to present additional justification, he
    denied the motion.
    III. The Court of Criminal Appeals Opinion
    The CCA disagreed with the military judge. After exam-
    ining the mental health records itself, the CCA held that the
    military judge abused his discretion in not conducting an in
    camera inspection of the records of both 
    witnesses. 75 M.J. at 948
    –49. The CCA concluded it was unnecessary to deter-
    mine what if any information from those records should
    have been provided to the defense because any error was
    harmless beyond a reasonable doubt. 
    Id. at 950.
                           IV. Discussion
    In order for Appellant to prevail, we would have to hold
    that the military judge abused his discretion by failing to
    order disclosure of the mental health records and that this
    abuse of discretion materially prejudiced his substantial
    rights. Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2012). We
    are convinced that the military judge’s ruling did not preju-
    dice Appellant’s substantial rights.
    “A constitutional error is harmless when it appears be-
    yond a reasonable doubt that the error complained of did not
    contribute to the verdict obtained.” Mitchell v. Esparza, 
    540 U.S. 12
    , 17–18 (2003) (internal quotation marks omitted)
    (citation omitted); see United States v. Hills, 
    75 M.J. 350
    ,
    4
    United States v. Chisum, No. 17-0199/AF
    Opinion of the Court
    357 (C.A.A.F. 2016). “To say that an error did not ‘contrib-
    ute’ to the ensuing verdict is not, of course, to say that the
    jury was totally unaware of that feature of the trial later
    held to have been erroneous,” but “rather, to find that error
    unimportant in relation to everything else the jury consid-
    ered on the issue in question, as revealed in the record.”
    Yates v. Evatt, 
    500 U.S. 391
    , 403 (1991), overruled on other
    grounds by Estelle v. McGuire, 
    502 U.S. 62
    , 72 n.4 (1991);
    accord 
    Hills, 75 M.J. at 358
    .
    Where an error constitutes a “constitutionally improper
    denial of a defendant’s opportunity to impeach a witness for
    bias,” our harmless beyond a reasonable doubt review in-
    cludes weighing:
    the importance of the witness’ testimony in the
    prosecution’s case, whether the testimony was cu-
    mulative, the presence or absence of evidence cor-
    roborating or contradicting the testimony of the
    witness on material points, the extent of cross-
    examination otherwise permitted, and, of course,
    the overall strength of the prosecution's case.
    Delaware v. Van Arsdall, 
    475 U.S. 673
    , 684 (1986).
    Appellant was charged with five offenses. It is obvious
    that the panel was unwilling to believe the uncorroborated
    testimony of AB AK, as they acquitted Appellant of every
    charge, except one use of cocaine, which was witnessed by
    both AB AK and AB CR. No information in AB AK’s mental
    health records could have caused reasonable court members
    to “ ‘receive a significantly different impression of the [wit-
    ness]’s credibility.’ ” United States v. Gaddis, 
    70 M.J. 248
    ,
    256 (C.A.A.F. 2011) (alteration in original) (quoting Van
    
    Arsdall, 475 U.S. at 680
    ). Indeed, appellate defense counsel
    conceded that any error regarding the production of AB AK’s
    mental health records was harmless.
    At the time of his testimony in Appellant’s case, AB AK
    was serving confinement in the Naval Consolidated Brig at
    Charleston, South Carolina. He conceded that he made a
    deal with the Government that provided for a special court-
    martial and a sentence cap in exchange for his testimony
    against other military members. He was testifying under a
    grant of immunity.
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    United States v. Chisum, No. 17-0199/AF
    Opinion of the Court
    In the past, AB AK had described himself as “a con art-
    ist.” He admitted that he had abused drugs before he enlist-
    ed, entered the Air Force to get away from drugs and, to do
    so, lied on his recruitment documents. He testified that he
    helped law enforcement because it was the best way of keep-
    ing himself and his wife out of trouble. He admitted telling
    defense counsel the day before he testified: “Right now I’m
    all about me.”
    He admitted that he experienced memory problems due
    to his habitual drug use and that mental health care provid-
    ers had diagnosed him as having bipolar disorder and hav-
    ing ADHD. He further revealed that he was upset that, dur-
    ing a split in their relationship, his girlfriend (now his wife)
    had slept with Appellant.
    He had been told that others had been compensated for
    working with law enforcement, and he was enticed because
    of his financial difficulties due to his drug use. He admitted
    using cocaine and heroin, among other drugs, and continu-
    ing to use cocaine and heroin after his arrest and after his
    release from rehabilitation. He manufactured and distribut-
    ed drugs. AB AK testified that he had failed two urinalyses
    for cocaine, and that he “had a pretty bad drug problem.”
    AB AK further admitted that he lied to many people, in-
    cluding to law enforcement agents after he started working
    for them as a confidential informant, and was having a diffi-
    cult time with his memory. He acknowledged taking medica-
    tion at the time of trial.
    In addition, the information in the sealed records would
    have added little to the defense counsel’s strong cross-
    examination of AB CR, who admitted that he was facing a
    special court-martial for using ecstasy but made a deal for a
    summary court in exchange for his testimony against Appel-
    lant; he felt pressured to do so, fearing the consequences for
    his family and wanting to preserve his access to mental
    healthcare and medication; in his proffer, he told the Gov-
    ernment what they wanted to hear, and that he could have
    made it all up; he was inebriated at the time of Appellant’s
    offense; and he had no clear memory of 2012, the time period
    in which the alleged drug use occurred. Following his de-
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    United States v. Chisum, No. 17-0199/AF
    Opinion of the Court
    ployment in 2010, AB CR suffered from substantial memory
    loss and often struggled to differentiate reality from fantasy.
    Having reviewed the sealed materials, we agree with the
    conclusion of the CCA that, under these circumstances, any
    error by the military judge in failing to inspect and order the
    disclosure of the mental health records of AB AK and AB CR
    was harmless beyond a reasonable doubt. Appellant was
    able to fully cross-examine the witnesses on their credibility
    and motive to misrepresent Appellant’s conduct. There is no
    reasonable probability that, had the evidence been disclosed
    to the defense, the result of the proceeding would have been
    different.
    V. Judgment
    The judgment of the United States Air Force Court of
    Criminal Appeals is affirmed.
    7
    

Document Info

Docket Number: 17-0199-AF

Filed Date: 1/26/2018

Precedential Status: Precedential

Modified Date: 1/26/2018