Striking testimony–ah–RCM 914

On Wednesday the CAAF granted:

No. 19-0411/AR. U.S. v. Norman L. Clark, Sr. CCA 20170023. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

I. DID THE MILITARY JUDGE ERR IN APPLYING R.C.M. 914? II. IF THE MILITARY JUDGE ERRED, UNDER WHAT STANDARD SHOULD THIS COURT ASSESS PREJUDICE III. WAS THERE PREJUDICE UNDER THE APPLICABLE STANDARD OF REVIEW?

ACCA opinion here.

Appellant’s sole assignment of error [before ACCA] involves his confession to CID agents during the course of two separate interviews conducted on back-to-back days.

As sometimes happens there appears to have been lost or destroyed copies of all or part of the video recorded confession. The defense moved for abatement under R.C.M. 703 and an “exhaustive” hearing followed. The MJ denied abatement and trial proceeded, which caused the problem above–the prosecution opened the door to a RCM 914 motion a la Muwwakkil. ACCA identified two basic questions: what is a statement and what is prejudicial.

At bar, the military judge found the comments by the SAs during the beginning of the day two interview did not constitute “statements” for the purposes of R.C.M. 914. Although the military judges’ analysis is likely erroneous as a matter of law based on the broad definition of “statement” under R.C.M. 914, we need not ultimately decide this issue. As discussed in Section B, below, any alleged error in not striking the SAs’ testimony did not materially prejudice a substantial right of appellant under Article 59, UCMJ.

ACCA finds no prejudice.

Looking specifically at this fully complete trial, appellate defense counsel conceded during oral argument that appellant’s R.C.M. 914 motion at trial applied only to the comments contained on the lost Disc 4. The admissions by appellant during this portion were perhaps the most damning, and thus were clearly material. However, even if we struck the two CID SAs’ testimony regarding the beginning of the day two interview, the following government evidence remains from appellant’s fully complete trial: (1) appellant’s admissions as to his sexual acts against AC on Discs 1, 2, 3, and 5; (2) appellant’s testimony at trial where he admitted he told the SAs during the day two interview that he penetrated AC’s vagina with his penis; (3) AC and appellant’s HSV-2 genital herpes positive status; and (4) the medical expert testimony as to the sexual activity required to contract HSV-2 genital herpes. Together, even without the testimony as to the portions of the interview covered by Disc 4, the government presented an overwhelming case as to appellant’s guilt. By contrast, the defense case was weak. Appellant’s testimony and his claims as to why he made admissions to CID are simply incredible. The remainder of the defense’s case was equally unpersuasive.