Courts of Criminal Appeal

Some quick on CCA opinions of interest

AFCCA

Cooley is a useful refresher on prior consistent statements.

Review is for an military judge’s decision to admit evidence for an abuse of discretion.

Mil. R. Evid. 801(d)(1)(B) provides that a statement is not hearsay if it “is consistent with the declarant’s testimony and is offered: (i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or (ii) to rehabilitate the declarant’s credibility as a witness when attacked on another ground.”

"The United States Court of Appeals for the Armed Forces (CAAF) has identified three criteria for out-of-court statements to be admissible as a non-hearsay prior consistent statement under Mil. R. Evid. 801(d)(1)(B)(i): “(1) the declarant of the statement must testify and must be subject to cross-examination about the prior statement; (2) the statement must be consistent with the declarant’s testimony; and (3) the statement must be offered ‘to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in testifying.’” And, “the prior statement . . . must precede any motive to fabricate or improper influence that it is offered to rebut,” and “where multiple motives to fabricate or multiple improper influences are asserted, the statement need not precede all such motives or inferences, but only the one it is offered to rebut.”

The prior consistent statement need not be identical to the witness’s testimony in order to be admissible, provided it is “for the most part consistent” and “consistent with respect to . . . fact[s] of central importance to the trial.”

The military judge did not abuse her discretion.

Ingram is another case where a plea is found improvident because the Appellant made statements that undercut the plea and which the military judge did not resolve.

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ACCA

In Jarlego, the court found that the military judge erred in failing to suppress Appellant's statements, found prejudice, and sets aside the findings and sentence. The court found a number of errors in the military judge's ruling.

The military judge described his ruling as a "close call." [That's] immaterial, but we observe some significant decisional gaps. Most importantly, his ruling did not address the legally significant difference between voluntariness of waiver and voluntariness of a statement (post-waiver) in general. Based on the common law cited by the military judge, he applied the incorrect legal framework—that is, instead of analyzing whether trickery was used to obtain (emphasis in the original) appellant's waiver, he looked to the use of trickery after a waiver was obtained. On its own this constituted an abuse of discretion.

The ruling also did not address other important points: whether appellant's interrogation was custodial; that the agent failed to tell him his unwarned and incriminating responses were inadmissible; and, that the agent immediately followed the waiver with interrogation that incorporated appellant's previous unwarned and incriminating responses, yielding additional self-incrimination.

Finally, the ruling did not address an obvious credibility problem raised by the transcript of the agent's previous testimony: among other things, the notion (proposed by the SNIP and affirmed by the witness under oath) that he was not asking appellant about the offense under investigation was incredible in the strictest sense of that word. We note the government did not call the agent to testify on this interlocutory question on rehearing. This is not a case where we might tend to defer to a military judge's in-court assessment of a witness's credibility; the military judge was reading from the same cold record as we have on appeal.

The court's analysis get's interesting on how to resolve the matter. See here and here.

Under the circumstances, a reasonable person in appellant's position would have believed his freedom to leave was restricted by law enforcement authority -- at the very least until midway through the rights warning, and after he had provided incriminating responses to unwarned questioning. Based on the agent's rendition of rights warnings, a reasonable person would have misunderstood the meaning of being a suspect -- the agent's definition and hypothetical example were jointly and severally incorrect and misleading. A reasonable person would also have believed the agent's warning to say that any statements made to law enforcement -- including appellant's unwarned statements -- were admissible against him in a criminal trial. This advice, too, was fundamentally misleading as it pertained to appellant's unwarned statements, creating the "cat out of the bag" dynamic Missouri v. Seibert found unconstitutional. Finally, the agent's suggestion that appellant's decision to waive his rights and speak with him would be "beneficial" was just as misleading. Apart from the agent's deception in obtaining the waiver, we find appellant's Fifth Amendment and Article 31(b), UCMJ, rights were violated, because he was under custodial interrogation and provided incriminating responses to questions without being adequately advised of those rights.

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At this year's CAAF conference, Major Rimal presented her excellent article, Rimal, Nicole A., OMITTING CHILD PORNOGRAPHY FROM GUILTY PLEAS, 2022-1 Army Law. 40 (2022). Her concern is that having CP in the record of trial was traumatic to the reporters, those who assemble the record, and those who have to read the record. She is right about that. My question was, why was it necessary to include CP images in the ROT in a guilty plea case?

ACCA helps answer that question in Wright.

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In Malabrigo, (another CID case) the court found no error in a denial of a mistrial, because the military judge took corrective actions for problems that arose in the trial. To paraphrase Joe Friday, just the facts or to quote Dickens, “Now, what I want is Facts. Stick to Facts, Sir!”

At trial, two Criminal Investigation Division (CID) agents each testified that upon arriving to question SGT about the handgun, he spontaneously stated "Oh f*** Malabrigo, what have you done?" This spontaneous statement was not disclosed to the defense before trial and was never recorded in the agents' case file. [1]

​After their testimonies, both agents were advised by the military judge not to speak about their testimony or the case with anyone other than counsel or the accused. A third CID agent, SA E, testified regarding whether a phone extraction occurred on SPC M's phone and stated there was an attempted forensic evaluation, but it failed due to a lack of password.

During a recess, defense counsel observed the special agents conversing in the hallway. Defense counsel also observed that two members of the panel were also present in
the hallway while the conversation was taking place. After defense counsel notified the military judge, both the agents and the panel members were recalled and questioned individually during an Article 39a hearing, outside the other panel members' presence.

When questioned, the special agents provided conflicting testimony. Special Agent and SA claimed they had only spoken to trial counsel about the case file. However SA testified that his colleague asked if an extraction was completed on SPC s phone. To which, he responded in the affirmative, despite previously testifying otherwise. The agent further explained that he testified this way because he was not sure if the extraction was a "Cellebrite extraction."

Following the witness testimony, defense counsel moved for a mistrial. The defense counsel argued that the conflicting testimony called into question the CID agents' character for truthfulness and further asserted the government's failure to disclose the excited utterance "Oh f*** Malabrigo, what have you done?" constituted a discovery violation meriting a mistria1.

[T]he military judge denied defense's motion for a mistrial but remedied the inconsistent statements by striking the testimonies of SA and SA EEs The military judge offered to defense the option to impeach or strike the testimony of SA M, and defense elected to also strike that testimony.

After the defense case-in-chief, the garnment indicated it intended to call three witnesses in rebuttal, including SPC an individual the defense suggested was the real perpetrator. During an Article 39a hearing. the government's proffer for the rebuttal witnesses led to a discussion of SPC's statement to CID and that one of the special agents told SPC his dog tag was found at the scene of the crime. Neither party possessed SPC s statement to CID. The proffer also included discussion of a Snapchat conversation between SPC M and Ms. MI the victim's ex-girlfriend, to which defense objected, citing that the information was not previously disclosed to the defense. Consequently, the defense again moved for a mistrial.

During another Article 39a hearing, SPC M [confirmed] he was told by CID he was a person of interest because his dog tags were found at the scene of the crime. Further, SPC MI testified he had knowledge of the crime and had spoken with the victim's ex-girlfriend about the offenses charged. Following this testimony, defense counsel again moved for a mistrial. The military judge, again, denied defense's motion for a mistrial but found the government had committed a Jencks Act violation as it related to SPC E's statement to CID. The military judge remedied the government's error by offering to prohibit SPC CN from testifying on rebutta1. However, the defense ultimately elected to elicit testimony from SPC CN.

[1] nor discovered during the prosecution's case preparation?

Denial of a mistrial is reviewed for an abuse of discretion.

On appeal, appellant argues, while robust, the military judge's remedies were insufficient to adequately address the toll the government's repeated discovery violations imposed on the defense. . . . [T]he military judge's remedies more than adequately addressed any potential violations of R.C.M. 706(a)(6).

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NMCCA

In Tucker, the court finds that credit for pretrial confinement can be waived as part of a pretrial agreement with a "waive all waivable motions" clause.

"In fact, in a post-Rock and DoDM 1325.07 world, we have held that Mason credit is waivable pursuant to a plea agreement. United States v. Nye, No. 201600362, 2018 CCA LEXIS 13, at *9 (N-M. Ct. Crim. App. Jan. 18, 2018) (“[T]he PTA’s ‘waive all waivable motions’ provision was valid, and . . . the Mason credit motion was knowingly and voluntarily waived.”) Nye is an unpublished opinion that was not petitioned.