United States v. Farley , 60 M.J. 492 ( 2005 )

UNITED STATES, Appellee
v.
Michael S. Farley, Sergeant
U.S. Army, Appellant
No. 03-0646
Crim. App. No. 20001079
United States Court of Appeals for the Armed Forces
Argued November 9, 2004
Decided March 18, 2005
CRAWFORD, J., delivered the opinion of the Court, in which
GIERKE, C.J., EFFRON, BAKER, and ERDMANN, JJ., joined.
Counsel
For Appellant: Captain Eric D. Noble (argued); Colonel Mark
Cremin, Lieutenant Colonel Mark Tellitocci,and Captain Rob W.
MacDonald (on brief); Colonel Robert D. Teetsel, Major Allyson
G. Lambert, and Captain Gregory M. Kelch.
For Appellee: Captain Mason S. Weiss (argued); Colonel Steven T.
Salata and Lieutenant Colonel Theresa A. Gallagher (on brief).
Military Judge: Robert F. Holland
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Farley, No. 03-0646/AR
Judge CRAWFORD delivered the opinion of the Court.
Pursuant to his pleas at trial by military judge, Appellant
was convicted of rape of a child under the age of twelve, sodomy
with a child under the age of twelve, and indecent acts with a
child under the age of sixteen in violation of Articles 120,
125, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§§ 920, 925, and 934 (2000). Appellant was sentenced to a
dishonorable discharge, twenty-three years of confinement, total
forfeiture of pay and allowances, and reduction to the lowest
enlisted grade. The convening authority waived the forfeitures
and reduced the term of confinement to nineteen years. The
United States Army Court of Criminal Appeals affirmed the
findings and sentence. On July 7, 2004, we granted review of
the following issue:
WHETHER THE MILITARY JUDGE ERRED IN FINDING THAT
APPELLANT'S DECISION TO PLEAD GUILTY AT TRIAL WAIVED
HIS FIFTH AND SIXTH AMENDMENT RIGHTS RETROACTIVELY
WITH RESPECT TO INTERVIEWS CONDUCTED WHILE IN PRETRIAL
CONFINEMENT AND LATER USED DURING THE SENTENCING PHASE
OF HIS TRIAL.
We need not decide whether there was error, because any
error was harmless.
On May 14, 2000, Appellant’s wife and a friend brought
Appellant’s eleven-year-old stepdaughter, HF, to the local
hospital. Following procedure mandated by Texas statute, Child
Protective Services (CPS) was notified of the allegation of
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child abuse. Ms. Martin, a Texas state social worker, began the
CPS assessment of a possible threat to the family’s two children
by interviewing HF. As part of her investigation requiring her
to speak to all family members, Ms. Martin, together with
coworker Sam Warren, interviewed Appellant in the Bell County,
Texas, jail. Ms. Martin did not advise Appellant of his rights
under Miranda v. Arizona1 or Article 31, UCMJ, 10 U.S.C. § 831(2000), before beginning the interview. Ms. Martin testified
that, during the interview:
[Appellant] said something to the effect that he
needed to touch -– he had just got [sic] out of the
field. His relationship with his wife was bad and his
daughter [HF] was there, so he did it. And he said
that if his mother was there he would did it [sic] to
her also . . . I am thinking he was referencing having
sex.
(emphasis added).
Ms. Martin testified at Appellant’s July 13, 2000, pretrial
investigation pursuant to Article 32, UCMJ, 10 U.S.C. § 832(2000). Later, on August 23, 2000, pursuant to Military Rule of
Evidence (M.R.E.) 304(d)(1),2 the Government, in a pretrial
disclosure statement, notified defense counsel that Appellant
1
384 U.S. 436 (1966).
2
M.R.E. 304(d)(1) states: “Prior to arraignment, the prosecution
shall disclose to the defense the contents of all statements,
oral or written, made by the accused that are relevant to the
case, known to trial counsel, and within the control of the
armed forces.”
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made the above statement.3 Four days before trial, the
Government notified defense counsel that Mr. Warren from CPS
would be called to testify. The following day, the Government
advised defense counsel that Ms. Martin would testify instead of
Mr. Warren and that her testimony would cover the same
statements by the accused that were to have been the subject of
Mr. Warren’s proposed testimony. Defense counsel acknowledged
having received this notice late in the day on Friday, August
22.
Before receiving Appellant’s pleas, the military judge
advised him that “any motion to dismiss any charge or to grant
other relief shall be made at this time.” Defense counsel
responded that Appellant had an unlawful command influence (UCI)
motion, and added that “depending on who the government calls as
witnesses, we may have some brief motions to suppress statements
made by the accused.” When asked if they were ready to proceed,
both defense counsel responded affirmatively, “[o]ther than with
regard to [a] possible request to have a slight delay to meet
the alleged government sentencing witness[.]” The military
3
The disclosure statement from the Government said:
The Accused made statements to the following
individuals: On or about 16 May 00, the Accused
stated to CPS Case Worker Sam Warren, “I just needed
the touch the other day. If my mother were there, I
would have had sex with her as well,” or words to that
effect.
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judge then asked Appellant to enter his plea “[w]ithout
prejudice to the defense to resolve this UCI motion later[.]”
Defense counsel did not move at this time to suppress
Appellant’s pretrial statements to Ms. Martin.
During the providence inquiry, the military judge informed
Appellant that by pleading guilty he waived his right against
self-incrimination (i.e., “the right to say nothing at all”);
his right to a trial of the facts by a court-martial (i.e., “the
right to have the court determine whether or not you are guilty
based on the evidence presented by the prosecution and on any
evidence that you may present”); and “the right to confront and
cross-examine any or all of the witnesses against you.”
Appellant persisted in pleading guilty and agreed to the waiver
outlined above. Appellant’s guilty pleas were not conditional,
and the pretrial agreement contained no terms limiting his right
to submit motions or enter objections.
According to the record, after Appellant pleaded guilty but
before Ms. Martin testified, the defense moved to suppress her
testimony:
CDC: [B]efore we call her . . . I still have to talk
with co-counsel to make sure, we have a motion to
suppress statements made to [Ms. Martin].
MJ: [W]hy is defense counsel at this point on a day of
trial still figuring out whether or not to make a
motion. I don’t understand that.
. . . .
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CDC: The witness list that we received on Friday had
a, I think, Sam Warren on it and we were not notified
until just recently that it was going to be Miss
Martin instead. And there were statements made to her
that we believe are suppressible. . . .
After Ms. Martin testified, defense counsel moved to strike
her testimony as violative of the Fifth and Sixth Amendments.
The military judge ruled that the motion was untimely because it
was made after Appellant’s plea of guilty, however, he also
reminded Appellant it was not too late for Appellant to withdraw
his guilty plea. Furthermore, the military judge noted that, if
Appellant withdrew his guilty plea, he would be allowed to
resubmit the motion to suppress Ms. Martin’s testimony. During
the aggravation portion of the presentencing hearing, the
military judge admitted Appellant’s statement that he “needed a
touch.”
DISCUSSION
The parties dispute the application of M.R.E. 304(d)(2)(A)
and 304(d)(5).
M.R.E. 304(d)(2)(A) provides:
Motions to suppress or objections under this rule or
[M.R.E. 302 or 305] to statements that have been
disclosed shall be made by the defense prior to
submission of a plea. In the absence of such motion
or objection, the defense may not raise the issue at a
later time except as permitted by the military judge
for good cause shown. Failure to so move or object
constitutes a waiver of the objection.
M.R.E. 304(d)(5) provides:
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United States v. Farley, No. 03-0646/AR
Except as otherwise expressly provided in R.C.M.
910(a)(2), a plea of guilty to an offense that results
in a finding of guilty waives all privileges against
self-incrimination and all motions and objections
under this rule with respect to that offense
regardless of whether raised prior to plea.
Even if the military judge did err in applying these two
rules, we hold that error was harmless beyond a reasonable
doubt. See United States v. Cuento, 60 M.J. 106, 111 (C.A.A.F.
2004).
When the social worker interviewed Appellant in jail,
Appellant said that he had just returned from a field exercise
and needed to engage in some kind of sex. He described this as
“need[ing] a touch.” This “touch” could have been from his wife
or his mother, if she had been there, Appellant said. When
asked about Appellant’s expressed desire to touch his mother,
the social worker could not remember the circumstances or what
Appellant meant. Nor did she follow up as to the meaning of his
statement.
The stipulation of fact and a videotape of the victim’s
statement to an investigator set forth in detail the numerous
instances of rape, sodomy, and indecent acts with HF over an
extensive period of time. Given the overwhelming nature of this
evidence, if there was any error in this case, it was harmless
beyond a reasonable doubt.
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The decision of the United States Army Court of Criminal
Appeals is affirmed.
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