Opposition Brief — Griffin v. United States

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OCTOBER TERM, 1987

JAMES GRIFFIN, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF MILITARY APPEALS

BRIEF FOR THE UNITED STATES

IN OPPOSITION

CHARLES FRIED

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

JOE R. LAMPORT

Col., OJAG-USAF

ROBERT E. GIOVAGNONI

Lt. Col., OJAG-USAF

MARC VAN NUYS

Capt., OJAG-USAF

Appellate Government Counsel

Government Trial and

Appellate Counsel Division

Headquarters, United States Air Force

Bolling AFB, D.C. 20332-6128

QUESTION PRESENTED

Whether the erroneous admission into evidence of the

hearsay statement of a declarant who did not testify at

trial was harmless error.

(I)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Brown v. United States, 411 U.S. 223 (1973) ............

Bruton v. United States, 391 U.S. 123 (1968) ...........

Chapman v. California, 386 U.S. 18 (1967) ............

Delaware v. Van Arsdall, 475 U.S. 673 (1986) ..........

Harrington v. California, 395 U.S. 250 (1969) ..........

Schneble v. Florida, 405 U.S. 427 (1972) ...............

United States v. Turner, 25 M.J. 324(C.M.A. 1987) .....

Constitution, statute and rule:

U.S. Const. Amend. VI (Confrontation Clause) ........

Uniform Code of Military Justice, 10 U.S.C. 801 ef seq.:

Art. 66(c), 10 U.S.C. 866(c) ... 0.6.2... eee eee eee

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(III)

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1987

No. 87-1813

JAMES GRIFFIN, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF MILITARY APPEALS

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINIONS BELOW

The opinion of the Court of Military Appeals (Pet.

App. la-6a) is reported at 25 M.J. 423. The opinion of the

Air Force Court of Military Review (Pet. App. 7a-13a) is

reported at 21 M.J. S501.

JURISDICTION

The judgment of the Court of Military Appeals was

entered on March 7, 1988. The petition for a writ of cer-

tiorari was filed on May 4, 1988. The jurisdiction of this

Court is invoked under 28 U.S.C. (Supp. III) 1259(3).

STATEMENT

Following a general court-martial at McChord Air

Force Base in Washington, petitioner, a member of the

United States Air Force, was-convicted of rape, in viola-

tion of Articlé 120 of the Uniform Code of Military Justice

(1)

(UCM3J), 10 U.S.C. 920. He was sentenced to confinement

for five years and a dishonorable discharge. The conven-

ing authority approved the sentence. The Ait Force Court

of Military Review affirmed the findings and sentence

(Pet. App. 7a-13a). The Court of Military Appeals af-

firmed (id. at la-6a).

1. As summarized by the Air Force Court of Military

Review (Pet. App. 7a-9a), the evidence at trial showed that

petitioner and the victim, Airman First Class Sheree

Hurst, met in the passenger terminal at McChord Air

Force Base, where both were awaiting military transporta-

tion to other locations (Tr. 248, 250, 614). Both were an-

ticipating lengthy waits, and there were no rooms available

at the base, so petitioner suggested that they split the cost

of a motel room, where they could rest and freshen up (Tr.

253). Hurst at first said nothing, but later agreed to an ar-

rangement where petitioner would use the room until

about 11 p.m. that night, when he said his flight was ex-

pected to leave,' and Hurst would have the room until the

following morning (Tr. 253, 307). They then took a shuttle

bus to the Fort Lewis Motel, which was located a short

distance from McChord (Tr. 254). Hurst was still reluctant

to share the room, but petitioner persuaded her to do so

(Tr. 255, 309-310).

Petitioner obtained a room and Hurst gave him her half

of the room rent (Tr. 255). Petitioner then left the room to

purchase some liquor, and Hurst showered and changed

clothes (Tr. 257, 313). After petitioner returned, she

talked with petitioner for a while, they each had a drink,

and Hurst then went to a bar for several hours, returning

after she believed petitioner had left (Tr. 256-263,

' In fact, petitioner knew at the time that his flight would not leave

before the following morning because of repairs on the aircraft (Tr.

659-660).

314-348). When she entered the room, petitioner was still

there, in the bed under the covers. He told her that his

flight was not leaving until morning and that he would be

staying the entire night (Tr. 264-265). Hurst did not con-

sider that arrangement satisfactory, so she went outside

and called for a taxi from a telephone at the motel (Tr.

265-266). When the taxi arrived a few minutes later, peti-

tioner went out to meet the taxi and told the driver that the

taxi was no longer needed (Tr. 267, 354, 523). Hurst

became frightened and screamed to the driver not to leave

(ibid.). As she attempted to leave the motel room, peti-

tioner pushed her away from the door, closed it, and

blocked it with his body (Tr. 267, 359-360). A struggle

followed, in which petitioner grabbed Hurst, shook her,

and pushed her onto the bed. She attempted to ward off

his advances by screaming and by hitting and pushing him,

but he eventually overpowered her, removed her clothes,

and raped her (Tr. 267-270, 361-362, 363-385). Later,

while petitioner was at the sink, Hurst escaped from the

room and ran toward other motel guests, who had been

drawn outside by the commotion. She was highly agitated,

pleading for help and exclaiming that she had been raped

(Tr. 270, 387-388, 454, 468-469, 482, 486, 525). She then

went over to the taxicab, which had remained in the park-

ing lot, and waited for the police, who arrived five or ten

minutes later (Tr. 271, 415-416, 453, 468-469, 524).

Several witnesses testified that they heard screams and

the sounds of a struggle coming out of the room occupied

by petitioner and Hurst. Army Sergeant Edmundo

Nigaglioni, a motel guest, testified that he heard screams

coming from the room, and a woman saying “I won’t do

it—I won’t do it” (Tr. 477-478). DiAnn Solomon, another

guest, testified to hearing the screams for about 15

minutes and a “girl yelling for help, to please stop, and

that it hurt” (Tr. 481). She also heard the sound of things

being thrown about the room (ibid.). Solomon walked

outside her room, and shortly thereafter the victim came

running up to her, grabbed her arms, and pleaded for help

in a frightened, upset manner (Tr. 481-482). Army Private

Jose Calderon, Ms. Solomon’s fiance, also testified that he

heard screams for approximately 15 minutes and that he

heard a woman yelling “please stop,” “it hurts,” and

“don’t” (Tr. 485). Gregory Webb, the taxicab driver who

was dismissed by petitioner, testified that he heard the vic-

tim screaming “don’t leave me here” or “help me” and that

he heard screams, punctuated by sounds of things break-

ing Or someone hitting a wall (Tr. 523-524, 528-530).

Webb was prohibited by company policy from rendering

assistance inside the motel room (Tr. 524), but he told his

dispatcher to call the police, and he remained in the motel

parking lot (/bid.). He heard more screams from the room

for 10 or 15 minutes, then a 5 to 10 minute lull, after which

the victim ran out of the room screaming and shaking (Tr.

525, 529-531). Another cab driver who arrived on the

scene gave similar testimony (Tr. 468-469, 475).

In addition to the testimony of those witnesses, the

prosecution offered a written statement executed by

another motel guest, Mrs. Kwang Sun Bordoy, on July 10,

1984, two days after the rape (Tr. 50; PX 2).? Over defense

? Bordoy’s statement said in pertinent part (PX 2):

| arrived at McChord AFB, WA, at approximately | p.m., 8 Jul

84, with my husband and daughter. We are on leave awaiting air

transportation to Korea.

Sometime after | put my baby to bed at approximately 10:30 the

night of 8 Jul 84, | heard a scream from the apartment area. |

then saw a black man push a white woman into apartment 17. |

then went to my husband and told him what | saw. I told him |

thought the girl was being raped. She kept screaming for about 10

‘nn

objection, the trial judge admitted that statement under

Mil. R. Evid. 804(b)(5), the so-called residual exception to

the hearsay rule for an unavailable witness (Tr. 89).

2. At trial petitioner admitted engaging in sexual inter-

course with Hurst but contended that it was consensual

(Tr. 645-648, 651, 658). He testified that when she re-

turned to the room late that night, she was upset over

something that apparently had occurred earlier while she

was out (Tr. 638). He admitted that she was screaming;

that he prevented her from leaving the room after he

dismissed the taxi; and that he grabbed her, shook her,

_and forced her to the bed (Tr. 640-652). He attributed

Hurst’s screaming to her emotional distress over whatever

had previously upset her, and he justified his actions in

grabbing, shaking, and forcing her to the bed on the

ground that they were his efforts to calm her down and

find out what was wrong (Tr. 640-644). He testified that

Hurst calmed down after they were on the bed, that they

engaged in consensual intercourse, and that afterwards she

screamed again and ran out of the room (Tr. 645-650).

3. The Air Force Court of Military Review ruled that

the admission of Bordoy’s statement was error, because

the prosecution had not shown that Bordoy was

unavailable within the meaning of Mil. R. Evid. 804(b)(5).

Pet. App. 12a. Nonetheless, that court held that the error

was harmless, given the “overwhelming” proof of peti-

tioner’s guilt. /d. at 13a. Peiitioner sought review of that

finding in the Court of Military Appeals, but the court

minutes or so. She finally came rufining out of the apartment and

went over to a taxi driver. Shortly after that the police arrived.

This all happened at the Ft. Lewis Motel, Tacoma, WA. We were

staying in room 6. Room 17 is almost directly across from our

room.

NN ———

declined to grant review of that issue. It affirmed peti-

tioner’s conviction after considering another issue. /d. at

la-6a.

ARGUMENT

Petitioner contends that the Air Force Court of Military

Review incorrectly found that the admission of Bordoy’s

statement was harmless.’ That fact-bound claim does not

merit review by this Court.

1. Petitioner argues (Pet. 4-5) that the court of

military review applied the wrong standard in finding the

error harmless. He claims that the court of review applied

a “de minimis standard,” rather than the supposedly more

rigorous harmless error standard adopted in Chapman v.

California, 386 U.S. 18 (1967). That claim lacks merit.

The erroneous admission of evidence in violation of the

Confrontation Clause is harmless if, in light of all the

evidence in the case, there is no reasonable possibility that

the erroneously admitted evidence contributed to the ver-

dict. Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986).

The court of military review implicitly but correctly ap-

plied that standard. The court found (Pet. App. 12a) that

the marginal effect of Bordoy’s statement on the proof of

petitioner’s guilt was de minimis, which is simply another

way of stating the Chapman standard. Moreover, a court

of military review must independently review the record

> Petitioner also asserts (Pet. i, 7) that a harmless error analysis is

inappropriate because of the seriousness of the error. He cites no case

{oO support that proposition, and we know of none. This Court has

consistently applied a harmless error analysis to Confrontation Clause

violations and has rejected the call for a rule of per se reversal.

Delaware v. Van Arsdall, 475 U.S. 673 (1986); Brown v. United

States, 4141 U.S. 223, 231-232 (1973); Schneble v. Florida, 405 U.S.

427 (1972); Harrington v. California, 395 U.S, 250 (1969).

and be convinced of the correctness of a finding of guilt

beyond a reasonable doubt before that finding may be

upheld. Art. 66(c), UCMJ, 10 U.S.C. 866(c); United

States v. Turner, 25 M.J. 324, 324-325 (C.M.A. 1987).

The court of military review carried out that responsibility

in this case after ruling that Bordoy’s statement had been

erroneously admitted. Pet. App. 13a. In so doing, that

court in effect concluded that the error in admitting her

statement was harmless beyond a reasonable doubt. The

failure on the part of the court of military review to cite

this Court’s decisions in Chapman or Van Arsdall is

therefore of no significance, because the court’s ruling was

clearly consistent with the harmless error standard applied

by this Court.

2. Petitioner also argues (Pet. 5-7) that the admission

of Bordoy’s statement was not harmless, because it con-

stituted evidence of an essential element of the crime of

rape (/.e., the use of force) and because it tended to cor-

roborate the victim’s testimony. That claim is meritless.

Bordoy’s statement could not have materially affected the

verdict, because it was cumulative of the other evidence

that was properly before the trier of fact, including peti-

tioner’s own admissions at trial, all of which overwhelm-

ingly established his guilt.‘

* Compare Brown v. United States, 411 U.S. at 231 (the admission

of non-testifying co-defendants’ confessions in violation of Bruton v.

United States, 391 U.S. 123 (1968), was harmless in light of their

cumulative nature and the overwhelming evidence of guilt properly

before the jury); Schneble v. Florida, 405 U.S. at 430-432 (Bruton

violation held harmless error where confession at most merely cor-

roborated the accused's confession and there was overwhelming in-

dependent evidence of guilt); Harrington v. California, 395 U.S. at

252-254 (Bruton violation held harmless error where co-defendants’

confessions were cumulative and the independent evidence of guilt

was overwhelming).

The only disputed issue at trial was whether Hurst con-

sented to sexual intercourse with petitioner, and Bordoy’s

statement could not have had a material effect on the

court-trarttal panel’s resolution of that question. Insofar

as the statement relates that Hurst was screaming and later

ran for help, the statement was merely cumulative of the

-independent, uncontroverted testimony offered by five

prosecution witnesses. In addition, even though petitioner

did not testify that he used force to push Hurst back into

the room, he did admit that he used force to subdue Hurst

once she was inside the room in order, he claimed, to find

out what was bothering her. Accordingly, the inference

that petitioner used force against Hurst was inescapable,

from petitioner’s own testimony if from nowhere else.*

Moreover, the independent evidence properly before the

court-martial panel overwhelmingly established

petitioner’s guilt. In addition to the victim’s strong and un-

wavering testimony, there was uncontroverted evidence

that petitioner struggled with Hurst; that she tried to get

away; that petitioner prevented her from doing so; that

petitioner forced Hurst to the bed; that Hurst was scream-

ing “I won't do it,” “please stop,” “it hurts,” and “don’t,”

(6>4 Petitioner asserts (Pet. 7-8) that Bordoy’s statement that “I

thought the girl was being raped” compounded the prejudice he suf-

fered, since that statement constituted an improper “legal conclusion.”

The full text of Bordoy’s statement on that point was “I told him [her

husband] | thought the girl was being raped” (PX 2). Rather than

stating a legal conclusion, that statement merely related what she told

her husband at the time the events were occurring. Therefore, the

statement, had she testified, could arguably have been admitted either

to explain why she took notice of the events and continued watching

for ten or More minutes, or as a “present sense impression.” In any

event, it is unlikely that the court-martial panel found petitioner guilty

of rape merely because Bordoy had that impression,

throughout the ordeal; and that Hurst ran from the room

crying and screaming for help. In light of that evidence,

petitioner’s claim that Hurst consented to intercourse was

simply not credible, and it was not made any less credible

by the erroneous admission of Bordoy’s statement. The er-

ror in admitting the statement was harmless beyond a

reasonable doubt.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.