United States v. Rounds

30 M.J. 76, 1990 CMA LEXIS 550, 1990 WL 39923

• Court: United States Court of Military Appeals
• Decided: April 24, 1990
• Docket: No. 61,912; ACM S27875
• Status: Published

Opinions

Opinion of the Court

SULLIVAN, Judge:

In March and April 1988 appellant was tried by a special court-martial composed of officer members at Randolph Air Force Base, San Antonio, Texas. Contrary to his pleas, he was found guilty of a specification of wrongful use of cocaine at divers times in Houston, Texas, and another specification of wrongful use of marijuana at divers times in Houston and San Antonio, in violation of Article 112a, Uniform Code of Military Justice, 10 USC § 912a.¹ He was sentenced to a bad-conduct discharge, confinement for 4 months, forfeiture of $200.00 pay per month for 4 months, and reduction to the lowest enlisted grade. The convening authority approved the sentence as adjudged. The Court of Military Review affirmed the findings and sentence in a short-form opinion on December 20, 1988.

This Court granted review of the following issue:

WHETHER APPELLANT’S CONFESSION OF 21 JANUARY 1988 WAS CORROBORATED AS REQUIRED BY MIL. R.EVID. 304(g).

We hold that appellant’s confession to marijuana use in San Antonio at his Randolph Air Force Base barracks and cocaine use in Houston at a civilian New Year’s Eve party was adequately corroborated as required by military law. See United States v. Melvin, 26 MJ 145 (CMA 1988); United States v. Yeoman, 25 MJ 1 (CMA 1987). See generally Mil.R.Evid. 304(g), Manual for Courts-Martial, United States, 1984. However, his confession to cocaine use in Houston during Thanksgiving was not sufficiently corroborated under military law, so the portion of the specification covering this offense cannot be sustained. Id. Finally, the portion of the other specification pertaining to use of marijuana in Houston at the same New Year’s Eve party noted above cannot otherwise be sustained. See generally United States v. Hart, 25 MJ 143 (CMA 1987), cert. denied, 488 U.S. 830, 109 S.Ct. 85, 102 L.Ed.2d 61 (1988).

The evidence of record is as follows. A civilian female went to the Air Force Office of Special Investigations (OSI) at Randolph Air Force Base and made a statement implicating appellant in the use of drugs. After advisement of his rights, appellant was then questioned by agents of the OSI at Building 205, Randolph Air Force Base, Texas, on January 21, 1988. During this questioning, appellant made a written statement denying any knowledge of, or participation in, drug use with Airmen Ran-gel, Longworth, and Sax since his arrival at Randolph Air Force Base in August 1987. OSI Agent Barker then elicited a second handwritten and unsigned statement from appellant to the same effect. However, Agent Barker testified that he “knew that the statement was not true.” Accordingly, Agent Barker “gave him the option of either signing the statement that [appellant] knew to be false or completing the third statement.”

Appellant then made a third hand-written statement:

I have smoked marijuana since being here. Why? I don’t know. And cocaine. I did the cocaine in Houston. A couple times. On Thanksgiving and on New Years. Again I don’t know why. Because it is all not worth it. If there were any way of reversing all of this I would. I am like most people think doing once or twice won’t hurt anything. I didn’t expect to ever get out of the Air Force. It is the only job I’ve really ever enjoyed. Being cool around others was not then and is not now. I apologize for giving false statement. But I felt the others would not tell anything. I was only trying to cover for all of us. Not just myself. That is Eric, Ron, and Terry. Ron [and] Terry never went to Houston. Just Eric and myself. He talked me into going on Thanksgiving Holiday. That’s when I did the cocaine. Then and only then have I ever thought about it before. Its a hard decision to sit there and tell somebody no. I wish I would have, because I really don’t want to face family members and tell them why I’m home. I did have a good future and everything was going my way.

Its too bad I’ve chosen the wrong friends and have made the wrong decisions. Everything I’ve accomplished has just gone to waste. Three and a half years worth. On both trips to Houston Eric and I both took part in the use of cocaine.

Regarding the marijuana offense, the prosecution presented the testimony of Airman Basic Ronald Longworth and Airman Eric Sax, appellant’s barracks’ mates. Airman Longworth testified that in December of 1987 he returned to his barracks after doing his laundry. He entered a bathroom-passageway between his room and Airman Sax’ room and observed appellant and Airman Sax standing near a burning marijuana cigarette in an ashtray. Airman Long-worth “took a couple of puffs off of it, and put it back down.” He had seen and used marijuana before, and he identified the substance as marijuana. He further stated that he never saw appellant taste, smoke, touch, or have anything to do with this marijuana cigarette.

Airman Sax also testified that on one occasion sometime between late November and early December 1987, he had smoked marijuana in this same passageway. He stated that he returned from a night of drinking with three friends, including appellant. While appellant left this group to turn on some music, the other three airmen lit a marijuana cigarette and smoked it. He then left the room to turn on his music and returned to find all his friends, including appellant, in the passageway and the cigarette burning in the ashtray. He stated that he did not see appellant smoke or even touch the marijuana cigarette. He also said that during a New Year’s Eve party in Houston, he observed appellant “standing in a group” where a lit marijuana cigarette was being smoked. Airman Sax testified that he himself “smoked a little more off of it, and handed it back to” the person who originally had the cigarette.

Concerning the cocaine offenses, the Government again presented the testimony of Airman Sax. He testified that he had taken appellant to Houston, Texas, for the 1987 Thanksgiving holiday. During a drinking party, he left appellant with high school friends, all of whom had “been involved in the use of drugs.” Moreover, Airman Sax noted that he knew that one of these friends had previously been involved with cocaine, although he did not see drugs at this particular party. Finally, Airman Sax testified that he was absent from the party for approximately an hour.

Airman Sax also testified that, while in Houston on New Year’s Eve, he and appellant met again with the high school friends from the Thanksgiving visit. They went to “a fraternity party” being held at the Houston Sheraton Hotel. He stated that he told appellant that “drugs would be present,” and in fact such drugs were in visible abundance. At one point, Airman Sax requested a dollar bill from appellant, who was standing beside Sax with an unobstructed view of the cocaine Airman Sax intended to consume. Sax rolled the dollar bill into a straw and inhaled the cocaine into his nose. He returned the dollar bill to appellant. Later, Airman Sax requested the dollar bill, again for use as a cocaine straw. Appellant was standing beside Sax during this second use of cocaine as well. Airman Sax also testified that appellant was not with him during the entire evening.

Appellant’s basic complaint is that evidence of his confession on January 21, 1988, was admitted by the judge in violation of Mil.R.Evid. 304(g).² See generally United States v. Yeoman, supra; United States v. Yates, 24 MJ 114 (CMA), cert. denied, 484 U.S. 852, 108 S.Ct. 154, 98 L.Ed.2d 109 (1987); see also United States v. Seigle, 22 USCMA 403, 406-07, 47 CMR 340, 343-44 (1973). He broadly asserts that an inference of truth concerning the essential facts of his confession cannot reasonably or logically be drawn from the independent evidence introduced as corroboration at his court-martial. See generally United States v. Melvin, 26 MJ 145. On the contrary, he contends that this independent evidence was “counter to the admitted facts” of his confession or “only consistent” in a “peripheral” way. See United States v. Mims, 8 USCMA 316, 318-19, 24 CMR 126, 128-29 (1957).

We first note that neither this Court nor the judge must accept appellant’s view of the record of trial and the inferences which might be reasonably drawn therefrom. See United States v. Wagner, 7 MJ 420, 421 (CMA 1979); United States v. O’Neal, 1 USCMA 138, 2 CMR 44 (1952); United States v. McCrary, 1 USCMA 1, 1 CMR 1 (1951). Admittedly, Airman Longworth and Airman Sax testified that they did not personally see appellant use marijuana or cocaine during the events covered by their testimony. However, their testimony did establish appellant’s presence at the scene of active drug use and his direct access to the drugs being used by others at his barracks and the New Year’s Eve party in Houston. Moreover, they admitted their own inability to fully account for appellant’s actions during these incidents. Accordingly, we do not construe the proffered corroborative evidence as establishing appellant’s innocence of these offenses or as contradicting his confession.

Appellant’s second attack on the peripheral nature of the evidence of corroboration proffered by the Government is somewhat more persuasive. He asserts that this independent evidence was insufficient corroboration because it did not directly show that he consumed, ingested, or otherwise used drugs as he confessed. He further states that even the direct proof of some peripheral facts stated in his confession is not legally sufficient corroboration under Mil.R.Evid. 304(g). We disagree, except with respect to the proffered corroboration of his confessed use of cocaine during Thanksgiving in Houston.

Independent evidence of each and every element of the confessed offense is not required as a matter of military law. United States v. Melvin, supra; cf. United States v. Villasenor, 6 USCMA 3, 6, 19 CMR 129, 132 (1955). All that is required is that the independent evidence raise an inference of truth as to the essential facts stated in the confession. See Mil.R.Evid. 304(g). Generally speaking, it must “establish the trustworthiness of the” confession. See generally Opper v. United States, 348 U.S. 84, 93, 75 S.Ct. 158, 164, 99 L.Ed. 101 (1954).

Here, the testimony of Long-worth and Sax concerning marijuana use at the barracks and cocaine use at the New Year’s Eve party in Houston dovetail with the time, place, and persons involved in the criminal acts admitted by appellant in his confession. More importantly, their testimony concerning these two incidents clearly shows that appellant had both access and the opportunity to ingest the very drugs he admitted using in his confession. This is enough. See United States v. Melvin, supra at 147. This same corroboration, however, is distinctly lacking with respect to appellant’s admitted earlier use of cocaine on Thanksgiving in Houston. There, Airman Sax, the Government’s sole witness to this incident, said he saw “no drugs” whatsoever at that time.

Admittedly, United States v. Mims, supra, 8 USCMA 316, 24 CMR 126, suggests this confession is uncorroborated as to all the charged offenses. There, this Court held that independent evidence falling short of establishing actual ingestion was not sufficient to corroborate an accused’s confession to use of heroin. In that case, the accused admitted taking a shot of heroin in a hospital ward shower room on a certain date and at a certain time. The proffered corroboration was evidence of fresh needle marks in the accused’s arm, but those marks also happened to be located where blood extractions were taken from him for medical reasons; and evidence that drug-injection paraphernalia was found hidden in another soldier’s bunk in the ward where Mims was housed.

Later, however, in United States v. Melvin, supra, 26 MJ 145, this Court held that independent evidence falling short of showing ingestion was sufficient to corroborate an accused’s confession to heroin use. There, the accused admitted to smoking heroin over the past 4 months with Dudu, his drug supplier. The proffered corroboration was evidence showing the accused’s possession of heroin at the time of his arrest, the form of the seized heroin in cigarettes, the presence of other drug ingestion paraphernalia on his person, and his relationship with Dudu, including the situs and circumstances of their meetings.

This apparent conflict, however, can be readily reconciled on the basis that the elements-corroboration (corpus delicti) test was employed in Mims (see People v. Talve, 422 N.Y.S.2d 475, 73 A.D.2d 629 (1979); State v. Villalobos Alvarez, 155 Ariz. 244, 745 P.2d 991, 993 (Ariz.App. 1987)), but the trustworthiness-corroboration test was employed in Melvin. The latter test of corroboration, long accepted by the Supreme Court, was expressly adopted by the President in Mil.R.Evid. 304(g) and has been in the Manual since August 1, 1969. See also para. 140a (5), Analysis of Contents, Manual for Courts-Martial, United States, 1969, Revised Edition. This same, less-demanding, standard of corroboration is also applicable in the present case. We doubt, however, that even this standard can be satisfied by evidence that appellant’s companions on that Thanksgiving in Houston had previously used the same drug in high school which appellant admitted using in his confession. This goes beyond our holding in United States v. Melvin, supra.

The final problem we must address is appellant’s contention that his confession to marijuana use is so vague that it could never be corroborated as required by Mil.R. Evid. 304(g). In particular, he points to its failure to expressly name a situs for this criminal activity and the resulting speculation concerning the precise offense or offenses to which he had actually confessed. Accordingly, he argues that true corroboration, even under the more relaxed view, is unattainable. We must reject such an argument in the present case.

First, we note that no legal authority is cited for his novel approach to the law of confessions, and it is not consistent with Mil.R.Evid. 304(c) and (g). The situs of a drug offense is no longer a necessarily relevant factor in military criminal prosecutions, and it cannot be considered determinative of criminal liability under Article 112a. See Solorio v. United States, 483 U.S. 435, 107 S.Ct. 2924, 97 L.Ed.2d 364 (1987); United States v. Cline, 29 MJ 83 (CMA 1989). Accordingly, the omission of the situs of the crime in appellant’s confession does not make it any less “an acknowledgement of guilt” within the meaning of Mil.R.Evid. 304(c). Moreover, the very fact of its omission from the confession would indicate that it is not an essential fact admitted by appellant which requires corroboration under Mil.R.Evid. 304(g). Cf. King v. State, 585 S.W.2d 720, 722 (Tex.Crim.App.1979). In any event, for the reasons stated below, we construe appellant’s confession to impliedly state that his marijuana use occurred at Randolph Air Force Base, San Antonio, Texas, and this admission was adequately corroborated. See Mil.R.Evid. 104.³

Turning to appellant’s confession, we note appellant stated, “I have smoked marijuana since being here.” It further describes his anxiety over his possible elimination from the Air Force for these crimes. Also, the confession itself was written on an Air Force form signed by appellant with his mailing address at Randolph Air Force Base, Texas, and Unit designation — 12 OM/TWT 2. Finally, he previously asserted in his initial statement that he did not use drugs with Longworth, Rangel, and Sax since his August arrival at Randolph Air Force Base. The reasonable inference from all of the above was that appellant used marijuana at this military base since his assignment there. As noted above, there was ample corroboration for such use in the testimony of Airmen Longworth and Sax.

Of course, our narrow construction of appellant’s confession brings to the forefront another problem resulting from the wording of this confession. That document also makes a distinction between “here” and “Houston,” and it specifically admits only use of cocaine in Houston. In view of Airman Sax’ additional failure to see appellant actually use marijuana in Houston, no evidence of marijuana use at that location and time exists in the record for this crime. Accordingly, this portion of the marijuana-use finding must fail for insufficient evidence. See generally United States v. Hart, supra, 25 MJ 143. Nevertheless, appellant remains convicted of multiple drug offenses, and we seriously doubt that resentencing by a court-martial or reassessment by the Court of Military Review will produce a more favorable sentence. See Art. 59(a), UCMJ, 10 USC § 859(a).

DECISION

Specification 1 of Charge I is amended by striking the words “at divers times, from on or about November 1987 to.” Specification 2 of Charge I is amended by striking the words “at or near Houston, Texas, and” as well as the words “at divers times.”

The decision of the United States Air Force Court of Military Review as to Charge I and its specifications (both as amended) and the sentence is affirmed. The findings of guilty as to the stricken language in the specifications are set aside and that language is dismissed.

1 . Appellant was subsequently found guilty of the following charges:

Charge: I Violation of the UCMJ, Article 112a Specification 1: In that [the accused] did, at or near Houston, Texas, at divers times, from on or about November 1987 to on or about January 1988, wrongfully use cocaine.

Specification 2: In that [the accused] did, at or near Houston, Texas, and at or near San Antonio, Texas, at divers times, from on or about December 1987 to on or about 1 January 1988, wrongfully use marijuana.

2 . Mil.R.Evid. 304(g) states:

Corroboration. An admission or a confession of the accused may be considered as evidence against the accused on the question of guilt or innocence only if independent evidence, either direct or circumstantial, has been introduced that corroborates the essential facts admitted to justify sufficiently an inference of their truth. Other uncorroborated confessions or admissions of the accused that would themselves require corroboration may not be used to supply this independent evidence. If the independent evidence raises an inference of the truth of some but not all of the essential facts admitted, then the confession or admission may be considered as evidence against the accused only with respect to those essential facts stated in the confession or admission that are corroborated by the independent evidence. Corroboration is not required for a statement made by the accused before the court by which the accused is being tried, for statements made prior to or contemporaneously with the act, or for statements offered under a rule of evidence other than that pertaining to the admissibility of admissions or confessions.

(1) Quantum of evidence needed. The independent evidence necessary to establish corroboration need not be sufficient of itself to establish beyond a reasonable doubt the truth of facts stated in the admission or confession. The independent evidence need raise only an inference of the truth of the essential facts admitted. The amount and type of evidence introduced as corroboration is a factor to be considered by the trier of fact in determining the weight, if any, to be given to the admission or confession.

(2) Procedure. The military judge alone shall determine when adequate evidence of corroboration has been received. Corroborating evidence usually is to be introduced before the admission or confession is introduced but the military judge may admit evidence subject to later corroboration.

(Emphasis added in text.)

3 . Appellant, in testifying on a voluntariness-suppression motion, stated that he used “here” to mean “Texas.” However, this testimony was not before the members on findings, so it cannot be considered in evaluating the sufficiency of the evidence of guilt in this case.