United States v. Sowell

59 M.J. 954, 2004 CCA LEXIS 124, 2004 WL 1123823

• Court: Navy-Marine Corps Court of Criminal Appeals
• Decided: May 20, 2004
• Docket: NMCCA 9901777
• Status: Published

Opinions

RITTER, Senior Judge:

This case comes before us on a Government motion for en banc reconsideration of a published decision of this court, United States v. Sowell, 59 M.J. 552 (N.M.Ct.Crim.App.2003)(hereinafter Sowell I). In that decision, after finding the evidence legally and factually sufficient to establish the appellant’s guilt, and concluding that six other assigned errors did not provide any basis for relief, a divided panel of this court set aside the sentence, finding that the military judge abused his discretion in restricting the appellant’s unsworn statement. We granted the Government’s request for en banc reconsideration in order to state this court’s view on the application of relevant case law precedents, including United States v. Grill, 48 M.J. 131 (C.A.A.F.1998), to the facts of this case.

We have carefully considered the record of trial, the appellant’s eight assignments of error, the Government’s response, the Government’s request for reconsideration, and the appellant’s reply. We conclude that the findings and the sentence are correct in law and fact, and that no error materially prejudicial to the substantial rights of the appellant was committed. Arts. 59(a) and 66(c), Uniform Code of Military Justice, 10 U.S.C. §§ 859(a) and 866(c). More particularly, we affirm so much of the court’s 26 August 2003 decision as found the evidence legally and factually sufficient to establish the appellant’s guilt, and concluded that six other assigned errors did not provide any basis for relief. We also find that the military judge did not abuse his discretion in restricting the appellant’s unsworn statement, where the appellant sought to challenge the members’ verdict of guilty by informing them of a co-conspirator’s previous acquittal on related charges.

Background

The appellant and three other Sailors were accused of stealing two computers and various computer equipment from the Navy command to which all four were temporarily assigned. One of the four, Airman Apprentice (AA) David Sehwey, testified for the Government at trial, and stated that the appellant and Fire Controlman Third Class (FC3) Michelle Elliott each expressed a desire for a personal computer. AA Sehwey and the fourth co-conspirator, Seaman (SN) Kevin Cormier, agreed to help the two females steal a pair of refurbished computers from their command. After a fifth co-worker reported to the command having just seen the two females putting the computer equipment into their cars and driving off, the command confirmed that the property was missing and initiated an investigation. As a result, the command referred special court-martial charges against the two females suspected of taking possession of the computers. However, the command did not refer charges against the two men who assisted in the theft, but administratively separated them prior to the appellant’s trial. Of the two cases referred to courts-martial, FC3 Elliott was tried first, and was acquitted.

The appellant was tried and convicted before a court-martial composed of members, with enlisted representation. Before the presentencing hearing, the trial counsel asked the military judge to warn the parties not to reveal to the members the fact that FC3 Elliott was acquitted on related charges. Citing Grill, the trial defense counsel argued that the appellant had the right to mention the co-conspirator’s acquittal for consideration by the members in determining a proper sentence. The military judge allowed information regarding the dispositions of the two co-conspirators not charged, but found that information regarding FC3 Elliott’s acquittal was irrelevant to the appellant’s sentence and would constitute “a direct impeachment of the members’ determination” on findings. Record at 418.

On appeal to this court, the appellant contends that the military judge misconstrued Grill in prohibiting the appellant from mentioning the acquittal of her co-conspirator during her unsworn statement. On 26 August 2003, a panel of this court agreed, finding that Grill allows an accused to mention sentences of related cases in an unsworn statement, and that the military judge in this case committed prejudicial error by prohibiting the appellant from informing the members of FC3 Elliott’s acquittal. The Government asked this court to reconsider that decision en banc. We granted the Government’s motion, to review and clarify Grill’s application to the facts of this case.

Standard of Review

As we noted in our earlier decision in this case, we review the military judge’s decision to restrict the unsworn statement under an abuse of discretion standard, just as we would for any other ruling admitting or excluding evidence. United States v. Sullivan, 42 M.J. 360, 363 (C.A.A.F.1995). However, we must do so with full regard for the largely unfettered nature of an accused’s right to make an unsworn statement.

The Right to Make an Unsworn Statement

Although the right of a service member to make an unsworn statement has long been recognized by military custom, see United States v. Rosato, 32 M.J. 93, 96 (C.M.A.1991), its current basis in law is Rule for Courts-Martial 1001(c)(2), Manual for Courts-Martial, United States (1998 ed.), which states, in pertinent part:

(2) Statement by the accused.

(A) In general. The accused may testify, make an unsworn statement, or both in extenuation, in mitigation or to rebut matters presented by the prosecution, or for all three purposes whether or not the accused testified prior to findings.

The right to make an unsworn statement is a valuable right, and one that is not to be undercut or eroded. United States v. Partyka, 30 M.J. 242, 246 (C.M.A.1990). Although this right is broadly construed, it is not wholly unconstrained. Grill, 48 M.J. at 133. “The mere fact that a statement in allocution might contain matter that would be inadmissible if offered as sworn testimony does not, by itself, provide a basis for constraining the right of allocution.” Id. However, it is inappropriate to include matter in an unsworn statement that is “gratuitously disrespectful toward superiors or the court [or] a form of insubordination or defiance of authority.” Id. at 132 (quoting Rosato, 32 M.J. at 96).

United States v. Grill

As the separate opinions of our earlier decision demonstrate, the issue presented concerns conflicting interpretations of the Grill decision. The military judge’s ruling in the case at bar was based on his view that Grill’s holding allows an accused to inform the court, through the unsworn statement, of co-conspirator case dispositions and sentence comparisons, but that Grill’s logic did not extend to a co-conspirator’s acquittal. In Sowell I, a divided panel of this court determined that Grill’s holding reasonably includes such acquittals. Upon reconsideration, we disagree with Sowell I. We interpret Grill as a consistent application of prior case law or, at most, an incremental extension of that case law, rather than as creating a new rule — one that would ignore all prior existing restraints of case law and the Manual for Courts-Martial by expanding, virtually without limit, the right to make an unsworn statement.

In Grill, the accused sought to reveal through his unsworn statement the fact that no charges were brought against two of his three civilian co-conspirators, and that the third was charged, pled guilty, and received only probation. The military judge ruled this information objectionable on the grounds that it was irrelevant and confusing under Military Rules of Evidence 402 and 403, Manual for Courts-Martial, United States (1995 ed.). On appeal, the Court of Appeals for the Armed Forces (CAAF) first noted that it was unnecessary to decide whether challenged statements offered in an unsworn statement might be inadmissible under the rules of evidence. Then, emphasizing that the right to make an unsworn statement has been broadly construed for decades, our superior court found that the more lenient treatment received by the accused’s co-conspirators was not so objectionable that the accused should have been restricted in his right to make an unsworn statement on this basis. The CAAF explained that the military judge could have addressed his stated concern that the information was “confusing and misleading to the members” by means of a tailored instruction. Grill, 48 M.J. at 133.

In Sowell I, the Government argued that Grill only applied to case dispositions of co-conspirators not prosecuted, but not to the sentences of convicted co-conspirators. The majority decision corrected this misconception by noting that Grill found it was prejudicial error to prohibit the mention of a co-conspirator’s sentence to probation, as well as the civilian authorities’ decision not to prosecute two other co-conspirators. The court stated, “[t]he trend [in recent CAAF decisions] is clearly toward an expansive view of what can be included in unsworn statements,” and reasoned that a co-conspirator’s acquittal is encompassed in the idea of “sentence comparison.” Sowell I, 59 M.J. at 555. Citing Grill’s guidance regarding the use of tailored instructions to clarify any confusion resulting from an unsworn statement, the court then held that the military judge abused his discretion in prohibiting the appellant from mentioning FC3 Elliott’s acquittal, and set aside the sentence.

An Acquittal is Not a Sentence

We have no doubt that Grill deals with more than disparate treatment, and allows an accused to reveal co-conspirators’ sentences through the unsworn statement. The military judge in the instant case also recognized that lenient sentences were contemplated in Grill, when he told the trial defense counsel: “[h]ad there been an outcome in the sentence of the co-conspirator I believe you’re on solid ground.” Record at 419. An accused could argue that a lenient sentence in a related case, though of such marginal relevance that it may be inadmissible as evidence, see United States v. Mamaluy, 10 C.M.A. 102, 106, 27 C.M.R. 176, 180, 1959 WL 3587 (1959), should be considered by the sentencing authority in the hope of securing a similarly lenient punishment. It thus fits within a broad construction of R.C.M. 1001(c)’s definition of a “matter in mitigation,” and as Grill made clear, may be raised in an unsworn statement, since such statements are not evidence and the right to make them is broadly construed. See Grill, 48 M.J. at 133.

However, we agree with the military judge that the logical consequence of a co-actor’s acquittal is different than that of a co-conspirator’s lenient sentence or disposition of charges not resulting in a court-martial. An acquittal on related charges is neither a matter in extenuation, that serves to explain the circumstances of the offense, nor a matter in mitigation, that serves to “lessen the punishment to be adjudged ... or to furnish grounds for a recommendation of clemency.” R.C.M. 1001(c)(1)(B). Rather, the only logical consequence of a co-conspirator’s acquittal is to tell the members that their findings are wrong, improperly implying that they should reconsider the verdict. It argues that, just as a previous court found the evidence unavailing in the case of a co-conspirator, so a fair and consistent application of the law must exonerate the accused as well.

We do not believe the holding in Grill authorizes an accused to continue contesting adjudged guilt during the sentencing phase of trial. Indeed, this and other restrictions on the right of allocution are clearly implied in R.C.M. 1001 and other sources of military law. These implied restrictions were not raised by the facts in Grill and their efficacy therefore cannot be said to have been resolved by the CAAF in that case.

What Grill Did Not Address

We view Sowell I as taking a more expansive view of Grill than our superior court intended, and one that would invalidate prior existing law by implication. In reaching its decision in Grill, the CAAF simply re-emphasized points made earlier in Rosato concerning the broad scope and the critical importance of the right of allocution. The CAAF did not attempt to definitively delimit the boundaries of this right, as this clearly was not the court’s purpose in Grill. Rather, the court was engaged in preventing unnecessary restriction on the right to make an unsworn statement — which is not evidence— based on evidentiary rules and case law that only restrict evidence. Grill thus did not specifically address, nor do we believe our superior court intended to address, the interaction between the right of allocution and all other sources of military law that may act to restrict that right.

For instance, while it is clear from Grill and Rosato that the Military Rules of Evidence are not the standard by which an unsworn statement is to be measured, we do not read these cases as giving an accused carte blanche to use the unsworn statement in defiance of every purpose behind those rules. For instance, Grill does not address or condone an accused using the unsworn statement to divulge irrelevant classified or otherwise privileged information in violation of Mil. R. Evid. 505 and 506, or to savage a rape victim’s reputation in disregard of Mil. R. Evid. 412, simply because the accused chose not to make his statement under oath. See United States v. Ezell, 24 M.J. 690 (A.C.M.R.1987)(finding no error where military judge excluded reference in the unsworn statement to a rape victim’s past sexual behavior and experience). In such eases, Grill’s preferred remedy of a carefully-tailored instruction serves little purpose, for the harm is done to national security, important government interests guarded by the law of privileges, or the rape victim’s reputation, as soon as the unsworn statement is finished, regardless of anything the military judge does thereafter.¹ Indeed, we see no point in having Mil. R. Evid. 412, or other rules barring the admission of evidence on relevance grounds, if the accused is permitted to raise during the unsworn statement everything that was barred by the trial court’s rulings. Thus, we do not view Grill’s reference to certain recognized restrictions on the use of unsworn statements as having been intended as an exhaustive list of all such restrictions.

Likewise, we see nothing in Grill to indicate that R.C.M. 1001(c)(2) no longer applies to limit the general scope of an unsworn statement, however broadly this right is construed. R.C.M. 1001(c)(2) specifically limits the scope of the accused’s statement, whether sworn or unsworn, to matters “in extenuation, in mitigation or to rebut matters presented by the prosecution[.]” Matters in extenuation and mitigation, though broad concepts, are clearly defined in R.C.M. 1001(c)(1), and by definition pose some kind of limitation on the relevant subject matter of the unsworn statement.

However, we need not attempt to probe the outer limits of relevance or the specific restrictions that apply to an accused’s unsworn statement beyond those already established by existing precedent. It is sufficient for our purpose to point out that the military judge narrowly limited the appellant’s unsworn statement in this case, forbidding only the reference to the acquittal of one co-conspirator, while allowing the appellant to mention the more lenient dispositions of the charges against AA Schwey and SN Cormier. Not only do we find that the military judge acted within his discretion in limiting the appellant’s unsworn statement in this one regard, we consider the military judge’s decision to be consistent with Grill, as explained below.

The Military Judge’s Ruling was Consistent with Grill

We view the military judge’s ruling as being consistent with the principles set forth in Grill for at least three reasons. First, Grill expressly ruled that under the broad construction accorded the right of allocution, an accused’s unsworn statement may contain information regarding co-actors’ more lenient dispositions and sentences. But, as the trial judge noted, an acquittal is neither a more lenient case disposition nor a lenient sentence, and poses an entirely different contention to the members. The military judge’s ruling thus did not contradict the express holding in Grill.

Second, the majority opinion in Grill did not reference, much less overrule, the case of United States v. Teeter, 16 M.J. 68 (C.M.A.1983), which clearly prohibits an accused from attacking the findings of guilt during the sentencing phase of trial². As the Court stated in that case:

We are aware of no obligation, either under the Constitution or elsewhere, to provide an accused two chances to defend on the merits. In our opinion, the procedures established by the Uniform Code of Military Justice, as implemented by the Manual for Courts-Martial, are generally sufficient to satisfy due-process requirements. As appellant’s alibi testimony did not even marginally relate to matters in extenuation or mitigation, the military judge did not err in excluding such irrelevant testimony. United States v. Tobita, 3 U.S.C.M.A. 267, 12 C.M.R. 23, 1953 WL 2174 (1953).

Id. at 73 (emphasis added).

Teeter involved an accused’s sworn testimony rather than an unsworn statement, but is still controlling in this case. A co-conspirator’s acquittal, like evidence of an alibi, challenges the members’ findings of guilt and therefore does “not even marginally relate to matters in extenuation or mitigation[.]” Id.

Third, we find the military judge’s ruling to be consistent with Grill because it invoked a specific restriction on unsworn statements noted by the court in that case. As noted above, the logical inference raised by informing the members of a co-conspirator’s acquittal on related charges is that the members are wrong and that it is unfair to punish the accused before them. We view this message — of refusing to defer to the members’ findings determination during the presentencing hearing — as “a form of ... defiance of authority,” which both Grill and Rosato recognized as a well-established restriction on the use of the unsworn statement. Grill, 48 M.J. at 132 (quoting Rosato, 32 M.J. at 96).

Finally, we derive confirmation for our interpretation of Grill from the language of R.C.M. 1001(c)(1), which provides for and defines the scope of the right of allocution. R.C.M. 1001(c)(1)(A) specifically includes within the definition of “matter in extenuation” “those reasons for committing the offense which do not constitute a legal justification or excuse," thereby limiting the right of allocution to matters that do not challenge the court’s findings of guilt. (Emphasis added). Offering such matter undermines the finality of the verdict of guilt, shows a lack of respect for the decision of the court, and does not assist the court in arriving at a just and appropriate sentence. We thus view Sowell I as departing from Grill’s logic to countenance a misuse of the right of allocution that is prohibited by both R.C.M. 1001(c)(1) and Teeter, as well as Grill’s own warning against using this right as “a form of ... defiance of authority.” Grill, 48 M.J. at 132.

Conclusion

We find that the appellant’s mention of FC3 Elliott’s acquittal was rightly excluded, not because of evidentiary concerns which are inapplicable to an unsworn statement, but because: (1) it challenged, during the presentencing hearing, the correctness of the members’ decision on the issue of guilt, and (2) it “did not even marginally relate to” those matters within the relevant scope of inquiry during the sentencing stage of trial, as defined by R.C.M. 1001(c)(1). For both of these reasons, the military judge could properly rely on Teeter and R.C.M. 1001(c)(1). Finally, we view this challenge to the court’s decision on findings as reasonably constituting “a form of ... defiance of authority” — a long-recognized restriction on the right of allocution, and one that was specifically listed as such in both Grill and Rosato. With this legal support for his ruling, we cannot find that the military judge abused his discretion in excluding from the appellant’s unsworn statement information concerning FC3 Elliott’s acquittal.

Even if the military judge erred, we find no material prejudice to a substantial right of the appellant. To the extent that FC3 Elliott’s acquittal before a different court-martial would have had any logical consequence, it was not to argue for a lenient sentence, or even for no punishment, but to suggest that the members had no legal right to sentence the appellant at all. The information excluded was thus neither matter in extenuation or mitigation, nor rebuttal under R.C.M. 1001(e), and could not have assisted the members in their task of determining a just sentence.

Accordingly, the findings and the sentence are affirmed, as approved by the convening authority.

Chief Judge DORMAN, Judge HARRIS, and Judge REDCLIFF concur.

1 . Additionally, broadening the scope of an unsworn statement arguably broadens the scope of discovery. For example, if an accused is entitled to mention, in the unsworn statement, classified or privileged information that is otherwise inadmissible, it follows that he is also entitled to discovery of it, regardless of its relevance to the charges, possible defenses, or matters in extenuation or mitigation. Discovery in such cases would be an unlimited fishing expedition for information that would force the Government to dismiss the charges.

2 . Grill's logic does not overrule Teeter by implication, either, for Grill was not a contested case. Thus, the facts presented to the court did not reasonably raise the issue of whether an accused can undermine the court's findings of guilt during sentencing, since in a contested case such findings are based on the accused’s own pleas.