# Petition for Writ of Certiorari — Griffin v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1703%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1988 - **Citation:** 487 U.S. 1206 ## Text 87-1813 | TYE No. _ 4 1988 tOL, UR. In the Supreme Court of the United States OCTOBER TERM, 1987 JAMES GRIFFIN, PETITIONER v. UNITED STATES, RESPONDENT PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF MILITARY APPEALS LEO L. SERGI Colonel, Office of The Judge Advocate General United States Air Force HQ USAF/JAJD Bldg 5683 Bolling AFB, DC 20332-6128 (202) 767-1562 Counsel of Record WILLIAM J. REICHART Major, Office of The Judge Advocate General United States Air Force QUESTION PRESENTED WHETHER ADMISSION OF A WITNESS’S EXTRA- JUDICIAL STATEMENT INTO EVIDENCE IN VIOLATION OF PETITIONER’S SIXTH AMEND- MENT RIGHT TO CONFRONTATION WAS SIGNIFI- CANT PREJUDICIAL ERROR OF CONSTITU- TIONAL DIMENSION, UNSALVAGEABLE BY HARMLESS ERROR ANALYSIS (1) TABLE OF CONTENTS Pave oe os a wa vice aiak eee ad che awe a ee i NE a ae an are aa ore Hi NER Oe | PO ED iil ry ela yy oh ae SM be Mea | a a web w wae mee vee on | Constitutional Provision Involved ................ Ka Ae | es ahh tc aie wea a cess 2 Reason for Granting Writ ............. Rd Ca aaa 42 4 8 8 a I Ra a S Appendix A—CMA Decision .................. baa la rE, CONN a cv ns ke sine es wha we pew oes 7a TABLE OF CASES, STATUTE AND OTHER AUTHORITY CASE LAW UNITED STATES SUPREME COURT Chapman vy. California, 386 U.S. 19 (1967) ........ 4,6 Fahy v. Connecticut, 375 U.S. 85 (1963) .... 2... . ee Se Pope v. Illinois, __. U.S. ___, 95 L.Ed.2d 439, 107 re es oe las pow ws v's . 7 Rose v. Clarke, 478 U.S. 570 (1986) ................ 7 COURT OF MILITARY APPEALS United States v. Griffin, 25 M.J. 423 (C.M.A. 1988)... .. la United States v. Ward, 1 M.J. 176(C.M.A. 1975) .. 3 COURTS OF MILITARY REVIEW United States v. Griffin, 21 M.J. 501 (A.F.C .M-.R. BS a a ae a 3 CONSTITUTONAL AND STATUTORY AUTHORITIES UNITED STATES CONSTITUTION Sixth Amendment ....... iin ARE ioe (iil) Page OTHER AUTHORITIES MANUAL FOR COURTS-MARTIAL, U.S. 1984 Military Rule of Evidence 804(b)(5) ............-....-. 4 MISCELLANEOUS AUTHORITIES Saltzberg, Schinasi and Schleuter, Military Rules of Evidence Manual, (Michie, 1981) ................... xs In the Supreme Court of the Gnited States OCTOBER TERM, 1987 No. JAMES GRIFFIN, PETITIONER v. UNITED STATES, RESPONDENT PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF MILITARY APPEALS James Griffin respectfully prays that a writ of certiorari issue to review the judgment of the United States Court of Military Appeals entered in his case on March 7, 1988. OPINIONS BELOW The decision of the United States Air Force Court of Military Review was issued on September 5, 1985. The decision of the United States Court of Military Appeals was issued on March 7, 1988. JURISDICTION The jurisdiction of this Court is invoked under 10 U.S.C. § 867(h) (Supp III 1985) and 28 U.S.C. § 1259(3) (Supp III 1985). The judgment of the Court of Military Appeals was entered on March 7, 1988. CONSTITUTIONAL PROVISION INVOLVED The Sixth Amendment provides: In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him... (1) 2 STATEMENT OF THE CASE Petitioner was tried by general court martial before of- ficer and enlisted members at McChord Air Force Base, Washington. Contrary to his pleas, he was found guilty of rape. Petitioner was sentenced to a dishonorable discharge and to confinement for five years. The convening authori- ty approved the sentence as adjudged on March 1, 1985. On September 5, 1985, the Air Force Court of Military Review affirmed the findings of guilty and the sentence as approved. (Appendix B). The United States Court of Military Appeals granted review of the case on December 23, 1986 and affirmed the findings and sentence on March 7, 1988. Petitioner was alleged to have raped Airman First Class Hurst in Pierce County, Washington, near McChord Air Force Base. Petitioner and AIC Hurst met for the first time at the McChord Air Force Base passenger terminal on July 8, 1984 (R. 248, 250, 614). Petitioner was enroute to Sacramento, California, from Korea where he had been visiting. Petitioner was in a terminal leave status and was scheduled to retire from active duty on July 31, 1984 (R. 611-612). Petitioner’s last duty station was Beale Air Force Base, California (R. 611). Petitioner had not previously been in Pierce County or the local area around McChord Air Force Base (R. 615). AlC Hurst was on leave, having been in Idaho for two weeks, and was on her way to her assigned duty station on Okinawa, Japan (R. 250). She had not been to McChord Air Force Base, nor had she been in Pierce County, Washington, before (R. 421). After meeting in the McChord passenger terminal dur- ing a layover between flights, petitioner and AIC Hurst went off base to a motel and agreed to share a room and 3 the cost (R. 255). They rented a room at the Ft. Lewis Motel where the rape was alleged to have occured several hours later. : AIC Hurst testified that after returning to the Ft. Lewis Motel on the night of July 8, 1984, she learned that peti- tioner was not leaving until the following morning (R. 265). She then left the motel room to call a taxi and re- turned to the room (R. 266-267). When she heard a horn blow outside, she thought the taxi had arrived and started to collect her luggage (R. 267). However, she stated that petitioner went outside the room, returned back inside, closed the door and stood in front of it (R. 267). She managed to open the door to attempt to leave, but peti- tioner shoved her away from the door and closed it again (R. 267). Petitioner testified that AIC Hurst never left or tried to leave the room before they had sexual intercourse as she claimed to have (R. 651). At trial, the following out-of-court statement of Mrs. Kwang Sun Bordoy was admitted over defense objection as Pros. Exh. 2: I arrived at McChord Air Force Base, Washington, at approximately 1:00 P.M., 8 Jul 84, with my husband and daughter. We are on leave awaiting air transpor- tation to Korea. Sometime after | put my baby to bed at approximate- ly 10:30 the night of 8 Jul 84, I heard a scream from the apartment area. i then saw a black man push a white woman into apartment 17. I then went to my husband and told him what I saw. I told him | thought the girl was being raped. She kept screaming for about 10 minutes or so. She finally came running out of the apartment and went over to a taxi driver. Shortly after that the police arrived. 4 This all happened at the Ft. Lewis Motel, Tacoma, Washington. We were staying in room 6. Room 17 is almost directly across from our room. The defense specifically objected to the admission of this statement on the grounds that the government had not made a reasonable effort to procure the presence of Mrs. Bordoy and that admission of the statement would deny petitioner his Sixth Amendment right to confront witnesses against him (R. 50). The military judge ruled that the statement was admissible under Military Rule of Evidence 804(b)(5). The Air Force Court of Military _ Review found that the military judge erred by admitting the statement, but concluded that the error was harmless. United States v. Griffin, 21 M.J. 501 (A.F.C.M.R. 1985) (Appendix B). REASON FOR GRANTING WRIT The Air Force Court of Military Review was correct in ruling that the military judge erred in admitting Pros. Exh. 2. Admission of such a statement clearly was not war- ranted because the declarant’s claimed unavailability had not been adequately established, and, therefore, peti- tioner’s Sixth Amendment right to confrontation was violated. However, the Court of Review applied the wrong stand- ard in holding that such an error of constitutional dimen- sions was harmless. This Court in Chapman v. California, 386 U.S. 18 (1967) clarified its holding in Fahy v. Connec- ticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963) at page 24. “We, therefore, do no more than adhere to the mean- ing of our Fahy case where we hold, as we now do, that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a seasonable doubt.” The Air Force Court of Military Review did not and could not make that declaration. Instead, the Court of Review stated that “the indicia of guilt provided by this evidence are de minimus when compared to the other evidence of record. . .” United States v. Griffin, supra, at 504. Sucha conclusion inherently relies on the assumption that peti- tioner could have been convicted even without considera- tion of the statement which was improperly admitted. As the United States Court of Military Appeals has ruled, “We are not concerned here with whether there was suffi- cient evidence on which the petitioner could have been convicted without the evidence complained of. The ques- tion is whether there is a reasonable possibility that the evidence complained of might have contributed to the con- viction.” United States v. Ward, 1 M.J. 176, 179 (C.M.A. 1975), citing, Fahy v. Connecticut, supra. In making the determination as to the effect of im- properly admitted evidence, one must consider the pur- pose for which the evidence was introduced and the use to which it was put. United States v. Ward, supra, at 180. In this instance, the government admitted at trial that the statement of Mrs. Bordoy was the only evidence that a black man pushed a white woman into the motel room. As such, this statement was evidence of a material fact and was the most probative evicence on this point. The state- ment of Mrs. Bordoy produced direct evidence of physical - contact between petitioner and the victim of the alleged rape. Such evidence is incriminating in and of itself in that it connects petitioner with the use of physical force to pre- vent AIC Hurst from leaving the room. As the trial counsel argued in his closing statement, AIC Hurst went to the door tried to get out, but she was pulled back in by petitioner and then the screaming started. Thus, the i acca 6 members were specifically requested to consider the state- ment of Mrs. Bordoy as direct evidence that petitioner physically prevented AlC Hurst from leaving the motel room immediately before the screaming started. Not only is it likely that the members considered the statement for this purpose, it is also likely that they inferred that the resultant act of intercourse was similarly forced upon AIC Hurst rather than being voluntarily consented to. Thus, this statement was used to support an essential element of the offense of rape and it cannot be deemed to be harmless. Not only was the statement of Mrs. Bordoy used as direct evidence of petitioner’s use of physical force against AlC Hurst, it also was used to corroborate her testimony, thereby enhancing the credibility of AlC Hurst. The issue of consent was the central issue in this case and was strong- ly contested. In a situation such as this, the credibility of the accused and the alleged victim of a rape are the pivotal issues. Thus, any evidence which makes one version more likely or probable than the other is relevant and material. When relevant and persuasive evidence is improperly in- troduced in close cases such as in this instance, reliance on the harmless error rule works unfair results because there is a reasonable possibility that the evidence might have con- tributed to the conviction. Chapman v. California, supra. As this Court has stated on several occasions, “An error in admitting plainly relevant evidence which possibly in- fluenced the jury adversely to a litigant cannot. . . be con- ceived of as harmless.” Chapman v. California, supra, at 23-24, citing Fahy v. Connecticut, supra. Petitioner sub- mits that the record does not affirmatively establish that there was no reasonable possibility that the statement of Mrs. Bordoy might have contributed to petitioner’s convic- tion. Rather, the record reveals that the admission and use of Mrs. Bordoy’s statement was, in all likelihood, reiied upon by members. The trial counsel specifically argued that Mrs. Bordoy’s statement was independent and convincing evidence that petitioner used physical force to prevent AIC Hurst from leaving the motel room, and also that the statement corroborated the testimony of Hurst. Either of these two uses creates the presumption that the evidence contributed to the conviction and it cannot be deemed to be harmless beyond a reasonable doubt. United States v. Ward, supra, at 180-181. This case is distinguishable from Rose v. Clarke, 478 U.S. 570 (1986) and Pope v. Illinois, U.S. , 95 L.Ed.2d 439, 107 S.Ct. 1918 (1987). In Rose, supra, the court found harmless error because the element of intent at issue there was apparent to any “rational” jury by the fact of commission of the injury. In Pope, supra, the court remanded for harmless error analysis where a jury was misinstructed that community standards rather than a reasonable man standard would be utilized to exclude redeeming social value as a defense to obscenity prosecu- tions. The instructional error thus dealt with a subjective prong of the obscenity test which the Illinois Court of Ap- peals might be able to resolve by reference to other evidence and analysis without necessity of a retrial. Both of these cited cases differ from the error thrust on petitioner herein. Mrs. Bordoy’s statement was a factual matter adding weight and support to the alleged victim’s side of a one-on-one swearing contest. It is not intent in- ferable from other facts or a rational man standard ap- pliable on appellate review to properly admitted tacts. A Significant portion of the prosecution’s case, from a tac- tual perspective, was introduced through this error of ad- mission. Harmless error analysis is inappropriate to this factual sufficiency issue in light of the critical and central nature of the evidence on the consensual intercourse issue. Finally, Mrs. Bordoy’s out-of-court statement con- tained her opinion on the ultimate issue of the case when she opined “. . . | thought the girl was being raped .. .” Such an opinion is a legal conclusion which did not assist the triers of fact in their determination. Rather, the admis- sion of such conclusions invades the province of the members by depriving the fact-finder of the opportunity to draw its own inferences and conclusions rather than ac- cepting those of the witness. Saltzburg, Schinasi and Schleuter, Military Rules of Evidence Manual, p. 322 (Michie, 1981). This opinion compounded the prejudice caused by the erroneous admission of the statement of Mrs. Bordoy. CONCLUSION The decisions of the Air Force Court of Military Review and the United States Court of Military Appeals grant that admission of the statement in question was error but then deny corrective action. Mrs. Bordoy was not a military witness in this case and the trial of this case did not take place in a foreign country or during any wartime exigen- cies. In short, there was no military necessity which re- quired this trial to be completed prior to Mrs. Bordoy’s ex- pected return to the local area. Characterization of this error aS harmless, given its status as the corroborating evidence of the victim’s version of this one-on-one con- frontation, is contrary to the cited civilian caselaw. Thus, a divergence of view on this question of harmless error exists between the military courts and civilian courts. Since no military necessity exists justifying such a difference, the question should be resolved at this Court. 9 WHEREFORE, appellant prays for a grant of certiorari to review the decision of the United States Court of Military Appeals in this case. LEO L. SERGI ; Colonel, Office of The Judge Advocate General United States Air Force HQ USAF/JAJD Bldg 5683 Bolling AFB, DC 20332-6128 (202) 767-1562 Counsel of Record and WILLIAM J. REICHART Major, Office of The Judge Advocate General United States Air Force z APPENDIX APPENDIX A UNITED STATES COURT OF MILITARY APPEALS No. 53,855 ACM 24752 UNITED STATES, APPELLEE v. JAMES GRIFFIN, TECHNICAL SERGEANT, U.S. AIR FORCE, APPELLANT March 7, 1988 Accused, a technical sergeant in the United States Air Force, was convicted by general court-martial convened at McChord Air Force Base, Washington, Robert G. Gib- son, Jr., J., of rape and he appealed. The Court of Military Review affirmed, 21 M.J. 501. The United States Court of Military Appeals, Cox, J., held that it was not error for court, with accused’s consent, to instruct members on effect of punitive discharge on accused’s eligibility for retirement benefits. Affirmed. Everett, Chief Judge, filed an opinion concurring in the result. For Appellant: William J. Holmes, Esq. (argued); Col- onel Leo L. Sergi, Major Charles E. Ambrose, Jr., Cap- tain Karen McCoy. USAFR (on brief). For Appellee: Lieutenant Colonel Robert E. Giovagnoni (argued); Major Joseph S. Kistler (on brief); Colonel Kenneth R. Rengert and Colonel Joe R. Lamport. (la) 2a OPINION OF THE COURT COX, Judge: In September 1984, appellant was tried by a general court-martial convened at McChord Air Force Base, Washington. The court was composed of officer (commis- sioned) and enlisted (noncommissioned officer) personnel. Appellant, a Technical Sergeant (E-6), was charged with raping an Airman First Class (E-3) servicewoman, in violation of Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920. Despite his not guilty pleas, he was convicted and sentenced to be confined for 5 years and dishonorably discharged from the service. The con- vening authority approved the sentence as adjudged, and the Court of Military Review affirmed. 21 M.J. 501 (1985). In his petition to this Court, appellant has asked us to determine if the military judge committed prejudicial error when he instructed the court members about appellant’s eligibility for retirement benefits. We hold that the judge’s instructions were not prejudicially erroneous, based on the facts and cirumstances present here. Sometime prior to the date of the offense, appellant submitted the paperwork required to allow him to retire from active duty in the Air Force. When the offense oc- curred, he was on terminal leave, awaiting transportation to his home in another state. During an in camera hearing [Art. 39(a), UCMJ, 10 U.S.C. § 839(a)] on sentencing in- structions, trial counsel requested that the court members be instructed on the effect a sentence to reduction in grade without a punitive discharge would have on retirement benefits. After discussing applicability of the instruction to the case and without any objection from the defense, the military judge agreed and advised the members as follows: An enlisted member who is retirement eligible at the time of sentencing and who is reduced in grade 3a but not sentenced to a punitive discharge will, if per- mitted to retire, retire at the grade to which reduced but will be paid at the higher grade. During deliberations, the court members asked the judge several questions concerning retirement benefits. Specifically, they wanted to know if a punitive discharge would cause forfeiture of all of appellant’s retirement benefits. They also wished to know: 1. What effect would a reduction in grade have on his retirement benefits? 2. When would a punitive discharge become effective? 3. What benefits would appellant’s dependents be en- titled to if he were confined? 4. How long would dependent entitlement exist? 5. Would retirement occur if appellant were not punitively discharged? Although the military judge attempted to answer some of the questions, he ultimately instructed them that: deci- sions concerning appellant’s retirement status would be made by the Secretary of the Air Force; the members should sentence appellant based on the offense committed and the instructions given; and the members could recom- mend that the convening authority grant appellant clemen- cy. Defense counsel did not object to any of the members’ questions or to the judge’s answers. The general rule concerning collateral consequences of a sentence is that “courts-martial [are] to concern themselves with the appropriateness of a particular sentence for an ac- cused and his offense, without regard to the collateral ad- ministrative effects of the penalty under consideration.” United States v. Quesinberry, 12 U.S.C.M.A. 609, 612, 31 C.M.R. 195, 198 (1962). We see no need to relax this rule today. 4a Obviously, a military judge will be confronted from time-to-time with inquiries from court members regarding collateral consequences of particular sentences, and an ap- propriate reply ordinarily is to reaffirm the idea that col- lateral consequences are not germane. On the other hand, it is certainly not error for the judge to answer the members’ question if an accused agrees. Military judges are cautioned, however, to be particularly careful in those The defense MOTION TO FILE DOCUMENT is GRANTED. US GOVERNMENT PRINTING OFFICE. 1988—212-484/62024 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1703%3A1. Public record. Not legal advice.