# Petition for Writ of Certiorari — Gittens v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0257%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1994 - **Citation:** 513 U.S. 878 ## Text ) Supreme Court, u.s. / FILED 94 278 auc 15 J994 No. OFFICE OF JHE CLERK In the Supreme Court of the United States OCTOBER TERM, 1994 ROBERT A. GITTENS, PETITIONER Vv. UNITED STATES OF AMERICA, RESPONDENT PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF MILITARY APPEALS PETITION FOR WRIT OF CERTIORARI JAY LINDSEY COHEN Colonel, United States Air Force Chief Appellate Defense Division Counsel of Record Eric N. EKLUND Captain, United States Air Force Appellate Defense Counsel Counsel for the Petitioner AIR FORCE LEGAL SERVICES AGENCY 172 Luke Avenue, Suite 208 Bolling AFB, DC 20332-5113 (202) 767-1562 August 1994 QUESTIONS PRESENTED Whether the Court of Military Appeals erred in holding that the military judge’s failure to sua sponie provide an accomplice instruction did not constitute plain error not- withstanding the fact that the evidence indicated that key government witnesses were accomplices. Whether the Court of Military Appeals erred in holding that the test for the admissibility of rebuttal testimony tainted by a witness’ prior in-court exposure to evidence is whether there was “bad faith” on the part of the party seeking to introduce the tainted testimony. TABLE OF CONTENTS io 6h oh aa uvsncne eX ¢ o's woss's Po ES Oe a re ee I. THE FAILURE TO INSTRUCT ON ACCOM- me SI a il ase. saxon cases Il. THE INCORRECT USE OF THE “BAD FAITH” STANDARD BY THE MILITARY Ne are a 4 ve wales ooo o8 Sk a vakave ss NI eo as 8a das ss Vide vaste taenn APPENDIX A (Opinion of the U.S. Court of Military ERATOR GRE Age ah pe ie ar a APPENDIX B (Opinion of the Air Force Court of Mili- RS ee od Ee le ee ee l3a TAB LE OF AUTHORITIES SUPREME COURT CASES: Page Cool v. United States, 409 U.S. 100 (1972) ....... 10 On Lee v. United States, 343 U.S. 747 (1952) ..... 10 Washingion v. Texas, 388 U.S. 14 (1967) ........ 10 FEDERAL COURT CASES: Phelps v. United States, 252 F.2d 49 (Sth Cir. I re ec aS oe RA a Se 10 United States v. Ell, 718 F.2d 291 (9th Cir. 1983) .. 21 United States v. Leonard, 494 F.2d 955 (D.C. Cir. SE RE ee RE aaa Ca re eens aw 10 MILITARY CASES: United States v. Allums, 18 C.M.R. 59 (C.M.A. UN hn so cos xe eke bee hee ee ee ee 9 United States v. Croom, 24 M.J. 373 (C.M.A. a, yh aa Wg POR RN eT ee Cae kee ean 20 United States v. Devine, 36 M.J. 673 (N.M. es Bs ois are ds ew be a 13 United States v. Dubose, 19 M.J. 877 (A.F.C.M.R. co La ke ae eae de eeae aki 17 United States v. Fisher, 21 M.J. 327 (C.M.A. ns or eee ee hae ee aa Silas 16 United States v. Gillette, 35 M.J. 468 (C.M.A. 55 oo cd une ue cae ee en bese eet 9, 16 United States v. Gittens, 39 M.J. 328 (C.M.A. WU dre, pee ened os eee Se ee re eng 1, 19 United States v. Gittens, 36 M.J. 594 (A.F.C.M.R. SN iso kN vs eo ee ies A 1, 13, 18 United States v. Gordon, 27 M.J. 331 (C.M.A. tea a oe aig UM iG gS 18, 20 United States v. Harrison, 5 M.J. 693 (A.F. Ce ED 6 ew a os bk a ebeeweieas 10 United States v. Hopewell, 4 M.J. 806 (A.F. PON os daly ccs Oka e Oe kee 10 TABLE OF AUTHORITIES MILITARY CASES — Continued: Page United States v. McKinnie, 32 M.J. 141 (C.M.A. SU a cose Woe ek aks Sk ek ee 9, 12, 17 United States v. Oxford, 21 M.J. 983 (N.M. a | PPP reer eer eres ) United States v. Scoles, 33 C.M.R. 226 (C.M.A. POS als eb aed eae ei 9, 12 FEDERAL STATUTORY PROVISIONS: 10 U.S.C.A. § 867(a) (Supp. 1992) ............. | 28 U.S.C.A. § 1259(3) (Supp. 1992) ............ MILITARY RULES OF EVIDENCE: oc tg th cae EE OE ETP EET OT 18, 19, 20 REGULATIONS: Manual for Courts-Martial, United States, R.C.M. ss tire gb cad os cee seated ade eneaok ) In the Supreme Court of the United Siates OCTOBER TERM, 1994 No. ROBERT A. GITTENS, PETITIONER Vv. UNITED STATES OF AMERICA, RESPONDENT PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF MILITARY APPEALS PETITION FOR WRIT OF CERTIORARI The petitioner, Roberto A. Gittens, 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 June 17, 1994. OPINIONS BELOW The opinion of the United States Court of Military Ap- peals issued on June 17, 1994 is reported at 39 MJ 328 (C.M.A. 1993) (Appendix A). The opinion of the United States Air Force Court of Military Review, issued on March 26, 1992 is reported at 36 MJ 594 (A.F.C.M.R. 1992) (Appendix B). JURISDICTION The final order of the United States Court of Military Appeals was entered on 17 June 1994. The jurisdiction of this Court is invoked under 28 USCA § 1259(3) (Supp. 1992) and 10 USCA § 867(a) (Supp. 1992). (1) STATEMENT OF THE CASE The appellant was charged with rape, sodomy, and adultery, but was ultimately only convicted of the lesser included charge of attempted rape. All of the charges stemmed from a party the appellant attended late on 12 May 1990, at the home of Andrea Huizar, located on George AFB, California. The prosecution’s case relied on the testimony of several individuals, Andrea Huizar, Jennifer Williams, Dexter Harris, Sgt Cecil Henderson, Melvin Rasberry II, and Cory Lyons. Andrea Huizar, the complaining witness, testified that on the night of 12 May 1990, she and Jen- nifer Williams had gone to the NCO club on base where she met Richard Williams (her boyfriend), Melvin Rasberry, and another individual named Michael St. Julian. R. 183. At 1:35 am, after a few sips of Margarita, and after the club had closed, Andrea invited Lyons, Rasberry, Wiiliams, and “the guys from Edwards [AFB]” over to her house on base for a “get-together.” R. 184. An- drea’s parents and sister were on retreat at the time. R. 185. Upon returning to her home, Andrea and the ap- vellant went to the shoppette to get ice for the party. While -here, she asked the appellant to “pretend like [they] were together,” so a guy who had been asking her to go out for a while “would stop [asking her] to go out.” R. 184. Upon her return home, Andrea drank some gin and orange juice the appellant had prepared, then went on to play “quarters”, a drinking game, during which she had four shots of tequila ai.d FE & J, the latter drink apparently a brand of whisky. R. 85-86. The next thing Andrea remembered is “feeling a sharp pain in her behind” which woke her up, and then telling “someone to stop and leave me alone,” but she could not identify the person she told this to. R. 186. Andrea could : 3 tell the bed was not moved, and then she heard two voices, “but only one was talking and he was saying “Huiry up... ,” you know,”. . . because I’m next.” R. 187. She then woke up dizzy Sunday afternoon, her sweater and bra having been pushed up. R. 187-88. Andrea originally thought something had happened between her and Richard Williams, her boyfriend. R. 188. Four days later, she finally reported to someone in authority that some- thing had occurred. R. 188. Andrea’s friend of four years, Jennifer Williams, testi- fied regarding her latest version of what she said happened late on 12 May 1990. Jennifer stated that after Andrea had gone to sleep, she gave Marcus (another party-goer) a glass of water because he felt ill. R. 83. Jennifer returned to the living room for about four minutes, and then went into the kitchen where she saw Michael Saint Julian (still another party-goer) and the appellant. R. 88. Dexter Harris then came and got Jennifer and took her to Anna’s (Andrea’s sister’s) room where Andrea was sleeping, exclaiming, “I can’t believe what they’re doing to her.” R. 88-89, 98. There she say Cory Lyons on his knees holding Andrea’s hand, as well as Melvin Rasberry in the back. Both Lyons and Rasberry had been drinking. R. 89. Jennifer asked them “what the fuck they were doing in there with her,” R. 89, and then observed Andrea “making a whining sound,” and was then told by either Lyons or Rasberry that “she’s calling for Richard.” R. 89. Two or three minutes later, after returning to the kitchen, Jennifer asked the appellant te remove Lyons and Rasberry from the room where An- drea was located. R. 89, 94. Lyons came back into the living room, Harris “was still laying around the house,” Rasberry was in either Anna’s room, or Andrea’s room where “the radio was,” and Jen- nifer was in the kitchen when, according to Jennifer, she allegedly heard Andrea repeatedly scream “You get off of 4 me,” and “your hurting me.” R. 90. Jennifer then went to see what was wrong with Andrea, and when she tried to open the door to where Andrea was sleeping she could not turn the doorknob. R. 90. She got the door open about 12 inches when she said the bed blocked up against the door. R. 91. The bed then allegedly turned back to its normal position 90 degrees perpendicular to the door as Jennifer got the door open. R. 91. Due to the way the door swings, the pressure of Jennifer and Harris pushing on the door was not responsible for the bed returning to its normal position. R. 92. Jennifer then allegedly saw a person on the other side of the bed with his pants and underwear down. Although there was “no light at all,” she testified she could see the individual’s white underwear, thereby allowing Jennifer to see that the person’s pants and under- wear were down. R. 92. She did not notice if the person had an erection or anything along those lines. R. 103. Jen- nifer stated that she recognized the person in the room as the appellant because the person in the room was wearing a pair of “black glasses” and “he was the only [one] who had his glasses on that night.” R. 93. The person in the room then allegedly pulled up his pants, told Jennifer “[s]he’s calling for Richard” and left. R. 92. Jennifer did not see anybody else in the room. R. 95. Jennifer then approached Andrea, who was naked from her neck down, who then allegedly told her, “I can’t believe he did this to me. He’s supposed to be my friend . . » Bobby, the black one. He was on top of me.” R. 94. Andrea also allegedly told Jennifer that “he hurt her.” R. 94. Jennifer then covered Andrea up, told her that “they’re not gonna come in here and bother you anymore,” and shut the door of the room. R. 94. She then returned to the living room and saw Rasberry, Harris, Lyons, and the ap- pellant. She also saw Richard Williams passed out on the couch. Rasberry went to the back room to retrieve his shirt, then everyone except Jennifer left the house. R. 94. 5 Dexter Harris provided contradictory testimony at the appellant’s court-martial. Harris stated that he attended Andrea’s party on 12 May 1989, and that he became intox- icated. R. 122. After playing quarters, Harris testified that he went and passed out in Anna’s room, (where Andrea eventually passed out), but then was told by Andrea to go to another bedroom in the house, (marked “xy” on App. Ex. II.) Nevertheless, Harris returned three times to the room where Andrea was passed out. R. 123. On one of the occasions he returned to Anna’s bedroom where Andrea was sleeping, Harris remembered seeing the appellant and two other guys in the room. R. 123, 130. During another time he returned to the room he allegedly saw the ap- pellant alone with Andrea, sitting at the foot of the bed. The appellant was away from her and facing the dresser. R. 124. Both the appellant and Andrea were dressed. R. 125. The final time Harris went to Anna’s room where An- drea was passed out was after he told Jennifer that “there were guys back there ‘pulling a train’ on Andrea.” R. 128. He and Jennifer subsequently went back to investigate, and at first she could not get the door open. R. 128. Harris was right beside her when she tried to get the door open. When she finally “busted the door open,” Harris was right behind her. R. 128. He did not see the bed turned sideways as the door was being forced open, and did not see the bed in front of the door when he entered the room. 128-29. After entering the room, Harris remembered that there were three other guys in the room. R. 129. Harris did not see the appellant with his pants down, R. 130, nor did he see the appellant touch or doing anything sexually inap- propriate to Andrea. R. 133. Harris admitted that he was alone with Andrea at one time, but just “for a second or two,” and denied being on the bed with Andrea. Harris also denied taking any of his clothes off, and doing anything of a sexual nature, such as 6 masturbating. R. 133-34. He also denied getting anyone to come into the room to show them someone having sex with Andrea. R. 134. Rasberry also testified on behalf of the prosecution. He testified that he, too, was at Andrea’s 12 May 1990 party and that he drank enough to be intoxicated. R. 145. While playing quarters, Rasberry went to the restroom. While walking to the restroom, he twice heard something to the effect of “[t]ake it out, it’s hurting.” R. 145. Five minutes later, he emerged from the bathroom and saw the ap- pellant in the hallway. He looked in the bedroom and saw Lyons, Rasberry’s “best friend” and roommate, R. 156, 160, comforting Andrea. R. 145, 152. Andrea was fully dressed at that time. %. 156. Harris was also in the bed- room, at the end of the bed. R. 152. Lyons at that point told him to go to the car. R. 152. After waiting five minutes, Rasberry went back inside. R. 152. He then met Lyons and the appellant, but they could not find Harris. R. 157. Rasberry then went back to Anna’s room where Andrea was sleeping and saw Harris “playing with him- self.” R. 157. Rasberry and Lyons finally got Harris out of the room to the car. In the car, Harris said something about “getting some” and asked the appellant if his was “as good as mine.” R. 158. Rasberry also testified that there were upwards of 15 black men who attended the party. R. 159. Lyons also testified as a prosecution witness. After play- ing quarters at Andrea’s 12 May 1990 party, Lyons went to the bathroom. R. 170. Afterwards, he went into the bed- room to say good bye to Andrea. R. 170, 179. Harris was passed out in the corner. R. 170. The appellant was not in the room at the time. R. 179. In fact, during the entire night, Lyons never saw the appellant in Anna’s room. R. 179. When Lyons went into the bedroom, he comforted 7 Andrea by talking to her because she was “hysterical.” R. 170. While comforting Andrea, Lyons testified that Jenni- fer did not come in and say “what the fuck are you doing in here.” R. 180. He then left the room and got “every- body” outside of the house, “everybody” being Harris, Rasberry, and the appellant. They got in the car, where the appellant allegedly said, “I got some.” R. 171. He did not remember anything else the appellant might have have said. R. 172. Under examination by the trial counsel, Lyons read from an unsworn statement he gave the OSI in the past in which he wrote “Bobby’s words were “Man we rata train on Andrea.’ ” R. 173. He denied being together with Rasberry in the room with Andrea. R. 176. Lyons also denied seeing Harris playing with himself or mastur- bating on the bed, R. 177, or having to go back in Anna’s room to get Harris. R. 177. He also testified at the Article 32 investigation, while under oath, that he did not remem- ber and did not say anything about the appellant “pulling a train on Andrea.” R. 175. Although he lives on block away from Andrea’s house, he does not remember how he got home. R. 178. Sgt Cecil Henderson, who is assigned to Edwards AF B, also attended Andrea’s 12 May 1990 party and also testi- fied for the prosecution. He stated that those at the party were having a good time drinking and laughing. Sgt Henderson had no more then two drinks the entire night. R. 137. He was in the living room, kitchen and outside the house during the party, and did not go to any of the other rooms. He only went to the rear of the house when he was motioned there by someone at about the end of the night. R. 137. When he went down the hall to see what the person wanted, he saw somebody on top of Anna’s bed. R. 139. Henderson saw a young woman on her stomach and some- one behind her engaging in sexual intercourse from the rear. R. 140. As he got to the door, someone screamed to 8 the person who motioned him to the door to “shut the door,” and then the door was slammed in Henderson’s face. R. 139. The woman was saying “you’re supposed to be my friend.” R. 139. Neither the person who motioned for Henderson to approach the room, nor the person he saw in Anna’s room on top of the woman, was the appel- lant. R. 140, 142. Although the OSI told Henderson that the person who motioned to him was Harris, Henderson testified that he was not sure it was him. R. 142. Testifying for the defense, Richard Williams stated that the day after the party, he had a telephone conversation with Andrea in which she asked him if he knew what had happened and “who it was.” R. 207. Williams replied that if he had known what was going on, he “wouldn’t have let it happen.” R. 207. Andrea then said, “But Richard, the bad thing about it is I don’t know if I wanted it or not.” R. 207. Over defense objection, Andrea’s sister, Anna Huizar was allowed to testify, despite the fact that she was present in the courtroom and heard the entire testimony that pre- ceded her, including that of Williams. R. 215. She testified that she was present during a phone call Andrea had with Williams and that during that particular phone call her sister never made the statement to which Williams testified. R. 221. REASONS FOR GRANTING THE WRIT I. THE JUDGE ERRED, TO THE PREJUDICE OF THE APPELLANT, BY FAILING TO GIVE AN ACCOMPLICE TESTIMONY INSTRUCTION DESPITE THE FACT THAT SEVERAL WIT- NESSES WERE ACCOMPLICES. Despite the fact that the evidence indicated that the wit- nesses Lyons, Rassberry, and Harris were culpably in- volved in the offenses for which the appellant was stand- 9 ing trial, the judge failed to sua sponte give an accomplice instruction to the members. He thus committed plain error pursuant to R.C.M. 920(f) which states that: “Failure to object to an instruction or to omission of an instruction before the members close to deliberate constitutes waiver of the objection in the absence of plainerror. . .” The Air Force Court of Military Review found that plain error was not committed sub judice because the “primary case against the appellant rested on the testimony of J.W. [Jen- nifer] and the victim. Moreover, the testimony of the ac- complices, if so they were, was corroborated by this testi- mony.” Gittens, 36 M.J. at 597. The Court of Military Ap- peals determined that “On this bizarre record, the evidence simply fails to suggest which, if any, of these individuals might have been appellant’s accomplices.” 39 M.J. at 331 (emphasis added). The court went on to note that, al- though a military judge’s failure to sua sponte provide an accomplice instruction could still be plain error in some in- stances, under the facts of this case, the military judge’s omission did not constitute plain error. Jd. The lower courts erred. The Court of Military Appeals has previously defined an accomplice as one who was culpably involved in the crime, and thus could have been prosecuted for the same offenses for which an accused is charged. United States v. McKinnie, 32 M.J. 141, 143 (C.M.A. 1991); United States v. Scoles, 33 C.M.R. 226, 231 (C.M.A. 1963); United States v. Allums, 18 C.M.R. 59, 62 (C.M.A. 1955); United States v. Oxford, 21 M.J. 983, 985 (N.M.C.M.R. 1986). Such an instruction is critical since, as the Court of Mili- tary Appeals noted in United States y. Gillette, 35 M.J. 468 (C.M.A. 1992): “Historically, accomplice testimony has been viewed with suspicion and with a grain of 10 skepticism so as to maintain the fair administra- tion of justice. 7 Wigmore, Evidence 2057 at 417 (Dhadbourn rev. 1978); Phelps v. United States, 252 F.2d 49, 52 (5th Cir. 1958). See also United States v. Leonard, 494 F.2d 955, 974 (D.C. Cir. 1974) (Bazelon, C.J. concurring in part and dis- senting in part). Courts have sought to highlight these suspicions by warning factfinders about such testimony through use of an accomplice in- struction. Indeed, questions about the credibility of witnesses who are considered accomplices has spurred the need for “careful instructions” on how to interpret such testimony. On Lee vy. United States, 343 U.S. 747, 755, 72 S.Ct. 967, 972-73, 96 L.Ed. 1270 (1952); See Cool v. United States, 409 U.S. 100, 103, 93 S.Ct. 354, 356-7, 34 L.Ed.2d 335 (1972); Washington v. Texas, 388 U.S. 14, 22, 87 S.Ct. 1920, 1925, 18 L.Ed.2d 1019 (1967). 35 M.J. at 470. Contrary to the opinion of the Court of Military Appeals, the evidence produced at trial does more than simply “suggest” that Rasberry, Lyons, and Harris were not mere bystanders, but were likely culpable for the charged offenses in this case, sufficient evidence, in fact, for the issue to have been submitted to the members for resolution in the form of an accomplice instruction. United States v. Harrison, 5 M.J. 693, 694 (A.F.C.M.R. 1978); United States v. Hopewell, 4 M.J. 806, 807 (A.F.C.M.R. 1977). As previously noted by the Court of Military Appeals in Gillette, the members should have been instructed on how to determine whether a witness is an accomplice, and the standard instruction regarding the suspect credibility of accomplice testimony. Sa ie eae 11 The evidence shows that these witnesses, and not the ap- pellant, were the likely perpetrators of any wrongdoing that might have occurred on 12 May 1990. Harris, Rasberry, and Lyons were all at Andrea’s party, and were either intoxicated before or became intoxicated during the course of the evening. R. 122, 145, 169. Harris was seen masturbating or playing with himself next to Andrea, R. 157, and he himself admitted returning to Anna’s room where Andrea was sleeping no less then three times after having earlier passed out from intoxication. R. 123. Har- ris, in turn, testified he told Jennifer that Other “guys” in Anna’s room were “pulling a train” on Andrea. R. 128. His disclaimer that despite that statement, he “. . . didn’t see no one doing nothing, I didn’t see it,” R. 128, rings hollow. Finally, Harris’s guilty conscience revealed itself in the form of his anxious questioning of Jennifer as to what she might have said about the party, and what she might have told the OSI. R. 107. The evidence also points to Lyons and Rasberry as the culpable parties, the “they” in all the statements at bar. Both were observed in Anna’s room by Andrea, and they evidently had been enjoying themselves because the appel- lant had to assist in their ejection from the room at Jenni- fer’s request. R. 89. Lyons attempted to deflect this evidence, denying being in the room with Rasberry, R. 176, denying that Jennifer had come in and said “what the fuck are you doing in here,” R. 180, and casting blame on the appellant by alleging he said “I got some,” R. 171, or “man, we ran a train on Andrea,” depending on what ver- sion of his you believe. According to Rasberry, Lyon’s best friend, when he became Suspicious upon hearing the statement “it’s hurting, take it out,” in a nonhysterical tone, R. 155, emanating from the room, he walked in on Lyons and Harris in the bedroom and was told by Lyons to go to the car. Rasberry also never admitted being in the 12 room alone with Lyons and Andrea. He did admit how- ever, that the OSI pressured him to focus in on the ap- pellant, and that they showed hima picture of the ap- pellant and stated, “we got him.” R. 158. He also failed to testify at the Article 32 hearing in this case. R. 144. Because one of the issues before the appellant’s court- martial was whether the appellant could be identified as one of the person(a) who had inappropriate sexual con- duct with Andrea, he was in the same position as the ac- cused in Scoles, wherein the issue was whether the accused “could be identified as one of the group of soldiers who ac- tually stole and sold the gasoline in question.” Supra 33 C.M.R. at 228. Rasberry, Lyons, and Harris, for their part, were in a similar position as the German witnesses who had knowingly purchased Army gasoline from the ac- cused, but whom the government unsuccessfully argued were not accomplices. Jd. at 230. Because Rasberry, Lyons and Harris were “culpably involved in the crime with which the [appellant] was charged,” they should have been, like the German witnesses in Scoles, the subject of an accomplice instruction to the members. /d. at 231. In- deed, the purpose of the accomplice instruction is to “call the court members’ attention to a matter specifically af- fecting the witness’ credibility, i.e., his motive to falsify his testimony in whole or in part,” because “a skeptical ap- proach to accomplice testimony is a mark of the fair ad- ministration of justice.” Jd. In light of the foregoing, the military judge had a sua sponte duty to give an accomplice instruction to the members. Indeed, the Court of Military Appeals has attempted “to make clear” that “ ‘{iJnstruc- tion on accomplice testimony should be given whenever the evidence tends to indicate that a witness adverse to the accused was culpably involved in a crime with which the accused is charged.’ Para. 7-10, DA Pam. 27-9, Military Judge’s Benchbook at 7-15 (1982).” McKinnie, supra at 13 144, n. | (cite omitted) (emphasis added). United States y. Devine, 36 M.J. 673 (N.M.C.M.R. 1992) (the failure of a military judge to give an accomplice instruction can result in plain error where the accomplice testimony is uncor- roborated, and is self-contradictory, uncertain, or im- probable.) Moreover, contrary to the Air Force Court of Military Review’s assertion, the primary case against the appellant did not rest on the testimony of Jennifer and the victim, thereby excusing the plain error. First, the lower court itself admitted, with regard to the victim, that “given the victim’s limited recall of events, the prosecution case depended on the testimony of others.” Gittens, 36 M.J. at 595.' Second, the testimony of Jennifer was so uncertain, inconsistent, and dubious that the prosecution needed the testimony of Rasberry, Lyons and Harris in order to try to convict the appellant, despite its contradictory and im- probable nature.? ' The victim’s evidence, in fact, exculpates the appellant. Andrea’s recollection of what occurred to her, although sketchy, nevertheless does contain some relevant evidence, evidence which contradicts some of Jennifer’s testimony. Andrea does not remember the bed moving that night, and in fact could tell the bed was not moved at the time she felt the sharp pain in her behind. R. 186-87, 190. She also remembered hearing two voices, and not just one voice, something which does not Square with the allegation the appellant was alone with her in the bed- room. ? Contrary to the assertion by the lower court that the accomplice testimony is “corroborated” by Jennifer’s testimony, Gittens, 36 M.J. at 597, her testimony in many respects stands alone. Henderson, who was actually motioned to the door of Anna’s room and witnessed someone engaging in sexual intercourse with Andrea, saw at least two people in the room, neither of whom were the appellant. R. 140, 142. In addition, at the time, according to Jennifer, that Harris tells her, “I can’t believe what they’re doing to [Andrea],” the appellant was not anywhere near Anna’s bedroom. He was in the kitchen. R. 88. Ac- 14 For example, Jennifer’s alleged identification of the ap- pellant as being in Andrea’s room after the door was opened is particularly suspect. At trial, for example, she is sure that the appellant is the person who was alone in that room. R. 93. In contrast, she admitted that when talking to trial counsel prior to the Article 32 hearing in this case, she was not so sure it was the appellant in that room. R. 104. Moreover, although she admitted it was “very dark” in that room, R. 103, with “no light at all,” R. 92, Jennifer not only claims to have seen the appellant’s white under- wear, R. 92, but his black glasses as well— prior to the time the appellant allegedly walked past her into the hallway. R. 93. Additionally, Jennifer claims to have seen the appellant after the door was opened between six and twelve inches at a point marked “x” in Appellate Exhibit I]. R. 119. The only way to believe this testimony is to believe that Jenni- fer is somehow gifted with X-ray vision. Jennifer is also uncertain as to what exactly had said to her when Jennifer entered the room. At trial, Jennifer testified that Andrea had said “He hurt me. The black one, ee 105. At the Article 32 hearing it was “the black one was on top of me,” and Jennifer had specifically told defense counsel, “I don’t remember the word, “‘Bobby,’” R. 115. | Prior to the Article 32 it was “Bobby, the black one.” — cording to Harris, what she said was “there are guys back there ‘pull- ing a train’ on Andrea.” R. 128. Rasberry and Lyons, and not the ap- pellant, were thereafter discovered in Anna’s room with Andrea. R. 84, 99. Lyon’s testified that after comforting Andrea in the bedroom, he left and got everybody, including the appellant, out of the house. R. 172. There was thus no subsequent time that the appellant could have gone into the bedroom alone. In fact, only Jennifer placed the appellant in the bedroom alone and undressed with Andrea, and that was in the improbable scenario discussed supra. 15 Jennifer’s testimony is also inconsistent not Only with other evidence adduced at trial, but with common sense as well. Aside from the fact that Harris did not corroborate Jennifer’s testimony that the bed in Anna’s room, which allegedly was blocking the door, turned back into position 90 degrees perpendicular to the door as it was being opened, R. 128-29, this scenario as described by Jennifer defies belief. It defies belief that the bed which extended far down towards the end of the room, R. 101, and which was a tight squeeze in that room. R. 195, Def. Ex. A, B, could be moved 90 degrees in a matter of seconds as Jenni- fer alleged at trial, not to mention without disturbing the surrounding items in the room. R. 104. Add to that im- plausible scenario the fact that the appellant allegedly was responsible for moving that large bed in that tight space in that manner with his pants and underwear down around his knees, R. 95, 103-04, and Jennifer’s story enters into the realm of fantasy. Other details with respect to Jennifer’s story also do not logically add up. Jennifer testified she supposedly “cov- ered Andrea up” after discovering her in the room naked (with her sweater, tank top and bra all pulled up around her neck). She allegedly told Andrea as she covered her up, “they’re not going to bother you anymore.” R. 93, 94. One wonders, why the use of the word “they’re” if the appellant was alone with Andrea as Jennifer claims. More revealing, however, is the fact that Andrea’s testimony contradicts Jennifer’s. When Andrea woke up, she testified that she was not covered but rather was still naked, in fact, “[she] looked down and saw [she] had no clothes on,” and her “sweater, bra, and tank top were all pushed up.” R. 187. Jennifer evidence did an extremely poor job, if at all, of comforting and covering her friend, an act she would have this Court believe. It is also hard to believe that if Andrea was screaming “at the top of her lungs” as alleged by Jen- 16 nifer, R. 90, that Andrea would not have woken up at that point or at least remembered this incident, despite her in- toxicated state.3 In short, the failure of the military judge to give the ac- complice instruction in this case cannot be excused by pointing to the inconsistent and improbable testimony of Jennifer. The military judge’s sua sponte duty to give the ac- complice instruction is also underscored by the manifest prejudice to the appellant resulting from his failure to do so. The members likely gave undue prejudicial weight to the accomplice testimony given by Harris (regarding the appellant being in the room with the complaining witness after Jennifer and he opened the door), by Lyons (that the appellant said he “got some” or “man, we ran a train on Andrea,” the latter statement not being testimony or evi- dence but rather impeachment of its own witness by the prosecution), R. 173, and by Rasberry (seeing the ap- pellant in the hallway after an unidentified person said “take it out, it’s hurting,” and that the appellant affirma- tively answered when asked if he “got some”). That the above testimony was even offered by the prosecutor for > Jennifer’s inconsistent, illogical, and contradictory testimony was perhaps brought on by guilt that she was responsible for allowing her friend to be placed in such a position, see e.g., her admission that Har- ris had told her something had been going on or could be going on all night before she “finally took him seriously that night,” R. 99; and her failure to report the incident to the police, R. 107. * Unlike the defense attorney in Gillette, 35 M.J. at 470, the failure to give the accomplice instruction in this case was not induced by the defense attorney at bar, and thus the failure to give the accomplice in- struction in this case should not be considered waived. Because the er- ror, under the facts discussed supra, was so egregious, plain error analysis should be applied in this case and should not be considered waived. United States v. Fisher, 21 M.J. 327 (C.M.A. 1986). Me NE REY 17 the members’ consideration highlights the fact that the prosecution itself thought they were of critical importance to their case against the accused, especially in light of the weak testimony of Jennifer. Cf., United States v. Dubose, 19 M.J. 877, 880 (A.F.C.M.R. 1985). Moreover, the members were left to deliberate on the appellant’s guilt in the face of this multiple and inconsistent testimony and the distinct possibility of mutual covering up between Lyons and Rasberry, “best friends,” without the critical cautionary accomplice testimony instruction which recog- nizes “as a fact of human nature that, if two persons are involved in the same crime, each will frequently try to shift most of the blame to the other.” McKinnie, supra at 144. This omission was thus plain error manifestly prejudicial to the appellant, rendering his trial unfair. Il. THE MILITARY JUDGE ERRED, TO THE PRE- JUDICE OF THE APPELLANT, BY AL- LOWING, OVER DEFENSE OBJECTION, THE TESTIMONY OF ANNA HUIZAR, A GOVERN- MENT REBUTTAL WITNESS WHO SAT THROUGH THE APPELLANT’S ENTIRE COURT-MARTIAL PRIOR TO BEING CALLED TO THE STAND. Shortly before the conclusion of the defense case, trial counsel approached the bench and informed the military judge that he desired to place Ms. Anna Huizar, the blood sister of Andrea, the complaining witness, on the stand as a rebuttal witness. R. 214. During the trial, Anna Huizar had sat with her mother and watched the proceedings. R. 215. Specifically, Anna told trial counsel, after Richard Williams testified, that she allegedly was present in the room during a phone conversation between Andrea and Williams, and that some remarks made by her sister were 18 supposedly never made. R. 215. Defense counsel objected, stating not only was Anna not contending that Andrea made a prior consistent statement, but that the whole reason for having an exclusionary rule is to prevent people who have heard prior testimony and then perhaps fabri- cate their own from taking the stand. R. 215. The military judge then stated he was not going to ascribe “bad faith” to either side, thereby not precluding the ability of the witness to testify on the basis of the ex- clusionary rule. R. 216. After argument by counsel, he permitted Anna to testify whether or not she heard a specific statement made by Andrea Huizar going to con- sent. R. 218. Anna Huizar then testified she “recalled an occasion when” her sister received a phone call from Williams, R. 221, and that her sister did not “make the statement to which Airman Williams testified.” R. 221. She admitted that she had not thought to repeat her “testi- mony” to anybody before the day she desired to testify, and that she had lived in the house with her sister Andrea since the incident. R. 223-24. The military judge erred to the prejudice of the appel- lant by allowing Anna’s testimony over defense objection. Mil.R.Evid. 615 provides for the exclusion of witnesses from trial proceedings “so that they cannot hear the testi- mony of other witnesses ...” As noted by the United States Court of Military Appeals, the underlying purpose behind sequestration under Mil.R.Evid. 615 is “the belief that if witnesses were allowed to hear each other’s testi- mony, the possibility of collusion or the unconscious melding of stories was too great.” United States v. Gor- don, 27 M.J. 331, 332 (C.M.A. 1989). The Air Force Court of Military Review found that the military judge did not abuse his discretion in allowing Anna’s testimony, finding the testimony “relevant to rebut a claim of recent fabrication and [that it was] not collateral.” Gittens, 36 — 19 M.J. at 598-99. The Court of Military Appeals held that, while Mil.R.Evid. 615 is applicable to rebuttal witnesses, “it can only be applied to known witnesses”. 39 M.J. at 332. Since the Government did not know Andrea’s sister could testify to any relevant issue until after Airman Williams had testified and Andrea approached the trial counsel, there was no error. Contrary to the opinion of the Air Force Court of Mili- tary Review, the trial judge abused his discretion on several grounds. First, in this case, the possibility of collu- sion was extremely high. The complaining victim’s sister, attempting to bolster a weak case against the appellant, one in which her parents no doubt wanted to see someone held accountable, decided after hearing a particularly damaging piece of evidence, to come forward and relate a story she had not told anybody before trial. Second, the military judge should have recognized and considered the fact that the “evidence” the prosecution was attempting to introduce would have served solely to unduly confuse the members and thereby prejudice the appellant as well. Even though Anna did not know who called who prior to the phone conversation she allegedly overheard,’ R. 221, this evidence was allowed to go to the members as relevant evidence to “rebut” what Williams had said that Andrea, his girlfriend, had told him. For all the military judge knew, Anna could have overheard another conversation, not the one Williams testified about. Finally, the military judge based his ruling upon an er- roneous reading of the exclusionary rule when he held that the exclusionary rule was a remedy applied only in in- stances of bad faith on the part of trial Participants. As * Andrea testified she called Williams and asked him if they had had sexual activity that she did not know about. R. 191. In contrast, Williams testified that he had called Andrea. R. 207. . 20 noted supra, the exclusionary rule is not a prophylactic rule intended to police the behavior of trial participants. It is a general rule intended to prevent collusion or the un- conscious melding of stories between witnesses who would otherwise be allowed to hear each other’s testimony. Gor- don, supra at 332; See also United States v. Croom, 24 M.J. 373, 375 (C.M.A. 1987) (exclusionary ruie’s purpose is to prevent the shaping of testimony by one witness to match that of another, and to discourage fabrication and collusion). The military judge’s erroneous belief that the bad faith of a trial participant was somehow involved in triggering the use of the exclusionary rule fatally under- mined his ruling allowing Anna to testify. Had he properly applied the precepts behind the exclusionary bar to this case, the military judge would have realized that the prose- cution’s obvious end run around Mil.R.Evid. 615’s se- questration rule should have been prohibited. The opinion of the Court of Military Appeals is anti- thetical to fundamental notions of due process to the ex- tent that it indicates that it is permissible for a trial judge to permit a witness to testify, notwithstanding the fact that the witness’ testimony may be the direct product of testi- mony heard, or evidence produced, during the course of the trial, as long as there was no improper intent on the part of government counsel. Appellant would submit that the Court of Military Appeals has missed the point of this assignment of error completely. The intent of government counsel in such a circumstance has absolutely no bearing on the ultimate prejudice suffered by an appellant as the result of inevitably tainted, if not patently manufactured, evidence. Appellant would submit that the focus of the Court should have been on establishing a test for admissi- bility to be used by military and civilian judges in this unique type of situation which perpetually occurs in both military and civilian trials. Logically, such a test would 21 place the burden of proof on the party seeking to intro- duce the tainted evidence to show that the value of the proffered testimony, even with the assumed taint, was so necessary to that party’s case that it should be admitted. In United States v. Ell, 718 F.2d 291 (9th Cir. 1983), a case cited by the Court of Military Appeals dealing with the denial of sequestration requests, the E// court noted: Witness sequestration cases present the sort of situation in which it is grossly unfair to place the burden on the defendant to establish prejudice. It may be impossible to tell how a witness’ testi- mony would have differed had the defendant’s motion to exclude been granted. Therefore, we hold that when a court fails to comply with Rule 615, prejudice is presumed and reversal is re- quired unless it is manifestly clear from the rec- ord that the error was harmless or unless the prosecution proves harmless error by a pre- ponderance of the evidence. 718 F.2d at 293-4. Appellant would submit it is similarly grossly unfair and a denial of due process for any court to use the standard adopted by the Court of Military Ap- peals. Instead, appellant would submit that this Honor- able Court should adopt the test set forth by the Ell court, namely, prejudice should be presumed and such evidence should be excluded unless the moving party proves, be- yond a reasonable doubt, that the testimony the moving party seeks to introduce is not the byproduct of the witness having been a bystander at trial, or is so necessary to the moving party’s case that, even with the assumed taint, it is constitutionally required to be admitted. The only conse- quence of adopting such a bright line rule would be that counsel would be forced to do a better job preparing their cases for trial. 22 Due to the ruling of the military judge in the case sub judice, manifest prejudice is obvious. The appellant’s right to a fair trial was severely undercut when the trial counsel was allowed to rebut a devastating piece of defense evi- dence, (Williams, the complaining witness’s own boy- friend, admitted that Andrea did not even know if she had “wnated it or not,” R. 207), with tainted and biased evi- dence whose confused nature could not have but been con- strued against William’s veracity to the prejudice of the appellant. The appellant had the right to a fair trial in ac- cordance with the Uniform Code of Military Justice and the Constitution of the United States. This prejudice can- not be swept aside by merely opining that this evidence was somehow relevant and noncollateral or that it was ad- missible because there was no bad faith on the part of government counsel. 23 CONCLUSION The questions presented are genuinely important and af- fect not only petitioner, but the rights of millions of Americans serving in the armed forces. Petitioner asks this Court to resolve the issue of whether a judge is required to give an accomplice instruction when the state of the evi- dence in a case clearly indicates that key government wit- nesses are in fact accomplices. In addition, this court should also establish a bright line rule for all trial courts with regard to the practice to be followed when “surprise” witnesses have had an opportunity to hear the evidence in a case prior to testifying. For all the reasons stated, the petition for a writ of certiorari should be granted. Respectfully submitted, JAY LINDSEY COHEN Colonel, United States Air Force Chief Appellate Defense Division Counsel of Record Eric N. EKLUND Captain, United States Air Force Appellate Defense Counsel Counsel for the Petitioner AIR FORCE LEGAL SERVICES AGENCY 172 Luke Avenue, Suite 208 Bolling AFB, DC 20332-5113 (202) 767-1562 August 1994 PUT NETL PENS MOA: £9 BE RE RIO BY = = Z s — — * APPENDIX A U.S. COURT OF MILITARY APPEALS No. 93-0432. CRM No. 29227. UNITED STATES, APPELLEE, Vv. ROBERTO A. GITTENS, SENIORAIRMAN U.S. AiR FORCE, APPELLANT. Argued March 2, 1994. Decided June 17, 1994. Accused was convicted by a general court-martial, Kevin L. Daughtery, J., of attempted rape. The United States Air Force Court of Military Review, 36 M.J. 594, affirmed, and review was granted. The United States Court of Military Appeals, Cox, J., held that: (1) defense ) failure to request accomplice instruction constituted waiver, and military judge’s failure to give such an instruc- | tion sua sponte was not plain error, and (2) military judge’s decision to allow witness’ testimony, after sitting through all of the court-martial, was not an abuse of discretion. Affirmed. For Appellant: Captain Eric N. Eklund (argued); Col- onel Jay L. Cohen (on brief); Colonel Terry J. Woodhouse, Lieutenant Colonel Frank L. Spinner, Cap- tain David D. Jividen. 5 (la) 2a For Appellee: Captain Jane M.E. Peterson (argued); Colonel Jeffrey T. Infelise (on brief). Opinion of the Court Cox, Judge: Senior Airman Roberto Gittens stands convicted of at- tempted rape.' We granted review of an issue involving a claim that the military judge failed, sua sponte, to give an accomplice instruction regarding three prosecution witnesses. In appellant’s view, these witnesses were culpably involved in any offenses that may have been com- mitted. The remaining granted issue concerns appellant’s contention that the military judge improperly allowed the victim’s sister to testify as a rebuttal witness. Up to that ! Appellant was charged with rape, forcible sodomy, and adultery, in violation of Articles 120, 125, and 134, Uniform Code of Military Justice, 10 USC §§ 920, 925, and 934, respectively, but was ultimately convicted only of attempted rape, in violation of Article 80, UCM§J, 10 USC § 880. He was sentenced to a bad-conduct discharge, confine- ment for 1 year, and reduction to the lowest enlisted pay grade. The convening authority approved the sentence, and the Court of Military Review affirmed. 36 MJ 594 (1992). We granted review of the following issues: I WHETHER THE JUDGE ERRED, TO THE SUBSTANTIAL PREJUDICE OF APPELLANT, BY FAILING TO GIVE AN ACCOMPLICE TESTIMONY INSTRUCTION DESPITE THE FACT THAT SEVERAL WITNESSES WERE AC- COMPLICES. I] WHETHER THE MILITARY JUDGE ERRED, TO THE [SUBSTANTIAL] PREJUDICE OF APPELLANT BY ALLOWING, OVER DEFENSE OBJECTION, THE TESTIMONY OF [THE VICTIM’S SISTER], A GOVERN- MENT REBUTTAL WITNESS WHO SAT THROUGH AP- PELLANT’S ENTIRE COURT-MARTIAL PRIOR TO BEING CALLED TO THE STAND. PO ee ee ee 0 Oe ee Oe ee Le ee ee eee Oe ee 7 3a point in the proceedings, she had been in attendance at the court-martial and had observed the testimony. We hold that appellant waived the accomplice instruction and that the military judge did not err in permitting the sister’s testimony. i The charges arose from a party appellant attended at the home of the 18-year-old victim, Andrea, a military depen- dent. Earlier that evening, Andrea went to the base non- commissioned officers’ (NCO) club to meet her friend, Jennifer Williams, another military dependent. When the club closed, Andrea invited appellant and others to her house for a party; her parents and sister were away ona retreat at the time. At the party, many of the guests became intoxicated playing “quarters,” a drinking game. The events of that night can be pieced together through the testimony presented at trial. For the prosecution, Jennifer testified that she was drinking alcoholic beverages on the night in question. She related that Andrea drank several “shots” playing “quarters,” then went to lie down because she was tired. While Jennifer was cleaning the kitchen, Dexter Harris, a civilian, told her to go with him back to a bedroom where Andrea was resting. Dexter said to Jennifer, “I can’t believe they’re doing that to her.” When Jennifer got to the bedroom, Andrea was on the bed; Corey Lyons, a civilian, was on his knees holding Andrea’s hand, and Melvin Rasberry, a civilian, was in the back of the room. Jennifer was concerned that the men were “trying to mess with” Andrea and thinking appellant was Andrea’s friend, she asked him to go to the bedroom and make the other men leave. Appellant went to the bedroom. Believing that ap- pellant was with Andrea and that Melvin, Dexter, and Corey were out of the bedroom, Jennifer resumed clean- ing up from the party. 4a While she was cleaning the living room, Jennifer heard Andrea scream, “You get off of me. You’re hurting me.” She hurried to the bedroom but was unable to open the door because the bed had been pushed in front of it. When the bed was moved and Jennifer was able to open the door, she saw appellant with his pants and underwear down; Andrea was laying on her back, naked from the waist down. Jennifer was “positive” that only Andrea and appellant were in the room. According to Jennifer’s testimony, appellant left the room at that point, and Andrea was crying. She said, “I can’t believe he did this to me. He’s supposed to be my friend.” She said, “Bobby. . . . He was on top of me.”.. . Appellant went by the name, “Bobby,” and no one else with that name, or any variant thereof, was identified as being at the party. Dexter Harris was the next prosecution witness. He testified that he was “very” intoxicated at Andrea’s party, but he remembers going three times to the bedroom in which Andrea was resting. The first time, he saw appellant and two other men in the bedroom with Andrea. The next time, appellant and Andrea were the only people in the room; appellant was sitting at the foot of the bed, and An- drea was lying on her stomach on the bed. The third time Dexter went to the room was with Jennifer, when the bedroom door was blocked by the bed. Dexter saw ap- pellant in the room on that occasion and thought others were present, but he could not be sure due to his level of intoxication. On cross-examination, he testified that he recalled telling Jennifer that “there were guys back there ‘pulling a train on’ ” Andrea. Sa Sergeant Cecil Henderson was also at the party. He testified that he was a designated driver that evening and that he had had very little to drink. Toward the end of the party, a commotion arose, and someone motioned for him to come to the bedroom. As he reached the bedroom door, someone inside the room instructed the person who had been motioning Henderson to shut the door, and the door “slammed” in Henderson’s face. Before the door closed, Henderson was able to see a young lady, lying on her stomach on the bed. She was saying, “You’re supposed to be my friend. You’re supposed to be my friend.” Someone behind Andrea appeared to be having sexual intercourse with her. Melvin Rasberry testified reluctantly as a prosecution witness. He was a friend of appellant and Corey. He testified that he was extremely drunk on the night in ques- tion. At one point, as he was walking to the bathroom, past the bedroom where Andrea was resting, he heard her say, twice, “Take it out, it’s hurting.” Melvin “just kept on walking to the bathroom.” When he came out, he saw ap- pellant “in the hallway” and Corey in the bedroom “com- forting” Andrea. Melvin thought “Dexter was at the end of the bed” at that time. When Melvin, Corey, and appellant were ready to leave, they went to look for Dexter. (The four friends had also arrived at the party together.) According to Melvin, they found Dexter “playing with himself” at the edge of the bed where Andrea was. They took Dexter to the car. In the car on the way home, appellant said that he “got some.” Ac- cording to Melvin, Dexter asked, “Was it as good as mine?,’. . . [iJmplying that . . . [hJe had ‘got some,’ ” too. Despite having been repeatedly questioned by authorities, Melvin had never made this representation about Dexter prior to the court-martial. 6a Corey Lyons, another of appellant’s friends, testified that he played “quarters” at Andrea’s house. When he went to tell Andrea good-bye, she was “hysterical.” Corey thinks Dexter might have been passed out in the corner of the bedroom. According to Corey, as he, Melvin, and ap- pellant were leaving the house, appellant said, “Man, we ran a train on” Andrea, and appellant said that he “got some.” Andrea was the last prosecution witness. She testified that she remembered playing “quarters” but did not recall how she got to the bedroom. She was awakened by “a real sharp pain in [her] behind” and told whoever was there to leave her alone. She testified that she heard two voices, but only knew what one was saying. That person said, “Hurry up... I’m next.” Andrea woke up the day after the party to find herself naked from the waist down, with her sweater and bra pushed up around her neck. She was “spotting” and “felt like sticky.” The defense called Airman Richard Williams as a witness. He had been a boyfriend of Andrea; and he, too, was at the party. He testified that he called Andrea the day after the party, and she told him what she suspected had happened. According to Williams, Andrea also stated, “(T]he bad thing about it is I don’t know if I wanted it or not.” Andrea’s sister was in attendance at he court martial, and she heard William’s testimony. During a break in the proceedings, the sister, who had had no previous contact with the prosecution, approached the prosecutor and told him that William’s testimony was false. The prosecution promptly called the sister as a witness in rebuttal of Williams’ trial testimony. Over defense objection, she testified that she was with Andrea throughout the phone call from Williams and that Andrea never said what Williams claimed she said about possibly consenting. Ta II Though he did not do so at trial, appellant now con- tends that the evidence shows that his friends, Melvin, Corey, and Dexter, were culpably involved in any offenses committed on May 12, 1990, and that the military judge, sua sponte, should have given a separate accomplice in- struction. Appellant does not here Suggest what instruc- tion the military judge should have given; however paragraph 7-10, Military Judges’ Benchbook at 7-15 (Dept. of the Army Pamphlet 27-9 (1 May 1982)), contains an example. See Appendix. Instead, the military judge gave the following general instruction on witness testimony: Now, you have the duty to determine the credibility of the witness. In performing this duty, you must con- sider each witness’ intelligence, ability to observe and accurately remember, sincerity and conduct in court, and any friendships or prejudices towards either par- ty. Consider also the extent to which each witness is either supported or contradicted by other evidence; the relationship each witness may have to either side; and how each witness may be affected by the verdict. In weighing a discrepancy by a witness or between witnesses, you should consider whether it resulted from an innocent mistake or a deliberate lie. Taking all these matter into account, you should then consider the probability of each witness’ testimony and the inclination of the witness to tell the truth. In United States v. Gillette, 35 MJ 468 (1992), we held: [w]henever the evidence raises a reasonable inference that a witness may have been an accomplice or claims to have been an accomplice of the accused, and upon request of either the Government or defense, the 8a military judge shall give the members a cautionary in- struction regarding accomplice testimony. First, the members shall be instructed how to determine whether a witness is an accomplice. Second, they shall be given the standard instruction regarding the suspect credibility of accomplice testimony. Id. at 470 (emphasis added). Following Gillette, a defense failure to request an ac- complice instruction constitutes waiver, albeit there may be a case where a judge’s failure to give such an instruction would be “plain error.” RCM 920(f), Manual for Courts- Martial, United States, 1984; United States v. McFarlin, 19 MJ 790, 794 (ACMR), pet. denied, 30 MJ 314 (1985); cf. United States v. Lee, 6 MJ 96, 97 (CMA 1978). Plain error is obvious and substantial error that prejudicially in- fluenced the deliberations of the members. United States v. Fisher, 21 MJ 327, 328 (CMA 1986). This is not such a case. Here, while there is evidence that others were in the bedroom with Andrea at various points, it is far from clear that any were in the room when appellant allegedly was having sex with Andrea. In addition, it is completely unclear who those persons might have been, or whether they also had sex with Andrea or otherwise participated in appellant’s offense. The test for “determining whether a witness in an accomplice is whether the witness himself could have been convicted of the same crime for which the defendant is being prosecuted.” United States v. McKin- nie, 32 MJ 141, 143 (CMA,1991), citing United States v. Scoles, 14 USCMA 14, 19, 33 CMR 226, 231, 1963 WL4842 (1963). On this bizarre record, the evidence simp- ly fails to suggest which, if any, of these individuals might have been appellant’s accomplices. 9a Moreover, the military judge gave a general witness- credibility instruction which plainly informed the members to take into consideration, inter alia, each witness’ “sincerity . . . friendships or prejudices towards either party [and] the extent to which each witness is either supported or contradicted by other evidence,” as well as “how each witness may be affected by the verdict.” Given the testimony presented here, the court members could have had few illusions about the character and cir- cumstances of appellant’s friends—none of whom iden- tified appellant as having sex with Andrea. For whatever weight their testimony may have carried, the members could hardly have failed to view it with great suspicion. Appellant’s waiver is not absolved by plain error. The remaining issue concerns the fact that Andrea’s sister was allowed to testify in rebuttal after sitting through all of appellant’s court-martial. Noting that Mil.R.Evid. 615, Manual, supra, provides for the se- questration of witnesses, appellant contends the military judge erred in allowing Andrea’s sister to testify. Mil.R.Evid. 615 provides for the exclusion of witnesses “[ajt the request of the prosecution or defense” or “sua sponte” by the military judge “so that they cannot hear the testimony of other witnesses.” (Emphasis added.) The pur- pose of the “rule is to prevent the shaping of testimony by one witness to match that of another, and to discourage fabrication and collusion.” United States v. Croom, 24MJ 373, 375 (CMA 1987), quoting Miller v. Universal City Studios, Inc., 650 F.2d 1365 (Sth Cir.1981) (citations omitted); see also United States v. Gordon, 27 MJ 331, 332 (CMA 1989). 10a While Mil.R.Evid. 615 is applicable to rebuttal witnesses, see United States v. Ell, 718 F.2d 291 (9th Cir.1983), clearly, it can only be applied to known witnesses. United States v. Cortwright, 528 F.2d 168, 176 (7th Cir.1975). Here, the Government did not know An- drea’s sister could testify to any relevant issue after Air- man Williams has testified and Andrea’s sister approached trial counsel.2 Under these circumstances, we see no abuse of discretion in the military judge’s decision to allow An- drea’s sister’s testimony. United States v. Croom, 24 MJ at 375. The decision of the United States Air Force Court of Military Review is affirmed. Chief Judge SULLIVAN and Judges CRAWFORD, GIERKE, and WISS concur. APPENDIX 1 May 1982 DA PAM 27-9 7—10. Accomplice Testimony. Instructions on accomplice testimony should be given whenever the evidence tends to indicate that a witness adverse to the accused was culpably involved in a crime with which the accused is charged. The instructions should be substantially as follows: You are advised that a witness is an accomplice if he/she was criminally involved in an offense with which the accused is charged. The purpose of this 2 It is unclear from the record if a formal order of sequestration was entered by the military judge. He did state, however, “Let me direct that you keep an eye on the spectator area and if a potential witness does enter the court, let me know so that we can have that person step out.” We will assume this was such an order. See Generally United States v. Ell, 718 F.2d 291 (9th Cir.1983). lla advice is to call to your attention a factor specifically affecting the witness’ believability, that is, a motive to falsify his/her testimony in whole or in part, because of an obvious self-interest under the circumstances. (For example, an accomplice may be motivated to falsify testimony in whole or in part because of his/her own self-interest in receiving (immunity from prosecution) (leniency in a forthcoming prosecution) ( )). The testimony of an ac- complice, even though it may be ((apparently) (cor- roborated) and) appanently credible, is of ques- tionable integrity and should be considered by you with great caution. In deciding the believability of (state the name of the witness), you should consider evidence including but not limited to (specify significant evidentiary fac- tors indicating that the witness may have been an ac- complice). Whether or not (state the name of the witness), who testified as a witness in this case, was an accomplice is a question for you to decide. If (state the name of the witness) shared the criminal intent or purpose of the accused, if any, or aided, encouraged, or in any other way criminally associated or involved himself/herself with the offense with which the accused is charged, he/she would be an accomplice whose testimony must be considered with great caution. (Additionally, the accused cannot be convicted on the uncorrobated testimony of a purported accomplice if that testimony is self-contradictory uncertain, or im- probable). (In deciding whether the testimony of (state the name Of the witness) is self-contradictory, uncertain, or 12a improbable, you must consider it in the light of all the instructions concerning the factors bearing on a witness’ believability.) (In deciding whether or not the testimony of (state the name of the witness) has been corrobated, you must examine all the evidence in this case and determine if there is independent evidence which tends to support the testimony of this witness. If there is such indepen- dent evidence, then the testimony of this witness is corrobated; if not, then there is no corroboration. (You are instructed as a matter of law that the testimony of (state the name of the witness) is uncor- robated).) Reference: Paragraph 74a(2), MCM, 1969 (Rev.) 13a U.S. COURT OF MILITARY APPEALS ACM 29227. UNITED STATES V. SENIOR AIRMAN ROBERTO A. GITTENS, FR151-66-6743 UNITED STATES AIR FORCE U.S. Air Force Court of Military Review. Sentenced Adjudged 1 March 1991. Decided 25 Nov. 1992. Accused was convicted by a general court-martial, George Air Force Base, California, Kevin L. Daughtery, J., of attempted rape. The United States Air Force Court of Military Review, Heimburg, J., held that: (1) evidence supported conviction; (2) men at party with accused could be found to be accomplices; and (3) victim’s sister was not subject to sequetration order. Affirmed. Appellate Counsel for the Appellant: Captain David D. Jividen (argued), Colonel Jeffrey R. Owens, Lieutenant Colonel Terry J. Woodhouse, and Major Mary C. Yastishock. Appellate Counsel for the United States: Captain Jane M.E. Peterson (argued), Colonel Richard L. Purdon, Lieutenant Colonel Brenda J. Hollis, Lieutenant Colonel Jeffery T. Infelise, Major Paul H. Blackwell, Jr., and Captain James C. Sinwell. l4a Before DIxON, MCLAUTHLIN, and HEIMBURG, Appellate Military Judges. OPINION OF THE COURT HEIMBURG, Judge: In a contested trial before members, appellant was con- victed by a general court-martial of attempted rape.' His approved sentence consists of a bad-conduct discharge, confinement for 1 year, and reduction to airman basic. He has assigned seven errors on appeal. Finding none per- suasive, we affirm. The Factual Sufficiency of the Evidence Appellant argues the evidence is factually insufficient to sustain the finding of guilty of attempted rape. While the testimony at trial was conflicting and some witnesses ap- peared unable or unwilling to recall events, we find the evidence sufficient to support conviction. The charges in this case arose out of a party held in the wee hours of a Sunday morning at the on-base residence of an 18-year-old female dependent, A.H., identified as the victim. Not surprisingly, the victim’s parents and siblings were away for the weekend. Testimony indicated that a number of people, most of them male, congregated at the house after the NCO Club closed. Many of those present were playing “quarters,” a drinking game in which the win- ner was privileged to declare who next would down a shot of tequilla or “E & J,” identified as a brandy. The victim, who already had consumed some alcoholic drinks that night, joined the “game” briefly and was re- quired to down four shots in rapid succession. She ' Appellant was arraigned on charges of rape, forcible sodomy and adultery (he was married to another person at the time.) The trial judge granted a motion for a finding of Not Guilty to forcible sodomy charge at the conclusion of the prosecution case. lSa remembered nothing after that until she awoke some time later, face down on her sister’s bed, with a “real sharp pain in my behind.” She believed there were two voices in the room, but she could identify neither of them. One said, “Hurry up . . . because I’m next.” The room was dark, with the door closed and no lights on. When she next awoke, it was Sunday afternoon, she was mostly un- clothed, felt “dirty,” and believed she had had sex with someone. Initially, she did not know what had happened to her, but, after discussing events with others who had been present, decided she had been raped and reported that on Thursday. Although her memory was foggy, she knew she never consented to any sex act. Given the victim’s limited recall of events, the prosecu- tion case depended on the testimony of others. Chief among them was J.W., a close friend of the victim who was present at the house all night. J.W. testified she was cleaning up the kitchen after the victim went to the bedroom to lie down. D.H. called her to the bedroom, ex- claiming, “I can’t believe what they’re doing to her.” Entering the room, J.W. saw C.L., M.R., and the victim, who was lying on the bed. J.W. believed the men in the room were “trying to mess with her or something,” so she went to the kitchen area and asked appellant to “go get those guys out of the room with [the victim].” Appellant went toward the bedroom. Five to ten minutes later, as she was cleaning up the living room, J.W. heard the victim’s voice, “screaming at the top of the lungs saying, ‘You get off of me. You’re hurting me.’ ” She and D.H. went to the bedroom and found the door closed. She couldn’t turn the knob or enter the room. Eventually, when the door opened slightly, she saw the bed was pushed against the door. When she was allowed to enter, appellant was alone with the victim in the room; his pants and underwear were down. He pulled his clothing back on and left the room saying to J.W., “She’s calling for [R.W.].” J.W. saw l6a that the victim was nude from the waist down, with her sweater, bra and tank top pulled up “around her neck.” J.W. “covered her up” and shut the door. Shortly, M.R., D.H., C.L. and appellant left the house. J.W. stayed until 0800. D.H. had been drinking heavily that night. His testimony as to the chronology of events and other details did not match J.W.’s exactly, but he corroberated signifi- cant events. He recalled going to get J.W. once with the message that guys were “pulling a train on” the victim. When he and J.W. went to the bedroom, she couldn’t get the door open at fires. but finally “Busted it open” and found appellant in the room with the victim. He thought there were others in the room, but wasn’t certain who or how many. He denied seeing appellant “doing anything” of a sexual nature to the victim, even touching her. M.R., an unwilling witness who had been drinking enough that night to be “intoxicated”, corroborated J.W.’s testimony and provided significant admissions by ap- pellant. Very late, “morning or early morning,” he was go- ing past a bedroom to the bathroom and heard, “Take it out, it’s hurting” spoken twice. He continued to the bathroom. When he returned after five minutes he saw ap- pellant in the hallway, C.L. and D.H. in the bedroom. C.L. was “comforting” the victim. Soon he, C.L., D.H. and appellant went to the car. In the car, C.L. said, “That was pretty messed up what happened,” and “Bobby [ap- pellant] said that he had got some” and spoke about pushing the bed up against the door. C.L., another reluctant witness who admitted having “too many” drinks, did not agree with the time sequence of other witnesses. He testified that, shortly before he and others left the house, the victim was “hysterical” in the bedroom and he “tried to comfort her.” He also recalled appellant, in the car, said, “I got some.” After attempts 17a at refreshing his recollection as to more of appellant’s statements in the car failed, the judge admitted as past recollection recorded C.L.’s prior sworn statement to the Air Force Office of Special Investigations (AFOSI) agent, “Bobby’s words were, ‘Man, we ran a train on [A.H.] ” R.W., the victim’s former boyfriend, testified as a defense witness on the issue of consent. He had been at the party. On Sunday afternoon he spoke with the victim on the telephone, and the subject of what happened to her the night before came up. The victim wanted to know if he “knew what happened and who it was,” and he told her no. Then she said a friend had told her she could claim rape, “But, [R.W.], the bad thing about it is I don’t know if | wanted it or not.” R.W.’s testimony was contradicted by the victim, who denied saying anything about consent or lack thereof to him. The victim’s sister also testified in rebuttal that she was sitting next to the victim during the telephone conversation, and the victim made no such statement. During oral argument, counsel for appellant asked us to consider the legal as well as factual sufficiency of the evidence. We have done so. Having considered the facts in the light most favorable to the prosecution, we find suffi- cient evidence on each element to convict. Jackson vy. Virginia, 443 U.S. 307, 309, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Moreover, we ourselves are convinced of appellant’s guilt beyond a reasonable doubt. Article 66(c), U.C.M.J.; United States v. Turner, 25 M.J. 324, 325 (C.M.A.1987). Failure to Give Accomplice Testimony Instruction Appellant urges us to find plain error in the trial judge’s failure, sua sponte, to give an accomplice testimony in- struction concerning the testimony of C.L., M.R., and 18a D.H. Appellant recognizes that, absent plain error, trial. defense counsel’s failure to request such an instruction would waive objection to its omission. R.C.M. 920(f); United States v. Lee, 6 M.J. 96 (C.M.A. 1978). The term “accomplice” has been given a broad defini- tion in military law, and includes persons who are “culpably involved in the crime with which accused was charged,” regardless of whether they are subject to pros- ecution. United States v. Scoles, 14 U.S.C.M.A. 14, 33 C.M.R. 226, 231 (1963). Under the facts of this case, we find that C.L., M.R. and D.H. could have been con- sidered to have been associated with appellant in the com- mission of attempted rape. Upon request, appellant was entitled at trial to an instruction on accomplice testimony allowing the court members to determine for themselves whether the witnesses were accomplices. United States v. Gillette, 35 M.J. 468, 470 (C.M.A.1992). Our next question is whether it was plain error for the trial judge to fail to give such an accomplice testimony in- struction, absent a request by the defense. Plain error will only be found where the accomplice testimony constitutes the sole evidence as to some of the elements or constitutes virtually the entire case for the prosecution. Lee, 6M.J. at 97; United States v Sanders, 34 M.J. 1086, 1092-3 (A.F.C.M.R.1992). The primaiy case against appellant rested on the testimony of J.W. and the victim. Moreover, the testimony of the accomplices, if so they were, was cor- roborated by this testimony.? We find no plain error. 2 The testimony of the accomplices was also not entirely in- criminating. In many significant respects, it tended to undermine ap- pellant’s culpability. Trial defense counsel ably walked a tightrope: he used accomplice testimony to point out conflicts with J.W.’s testimony and, at the same time, attacked it as contradictory and con- fused. Arguably, it was not to the defense’s advantage to label any of the purported accomplices as such, because calling them 19a Exclusion of Defense Witnesses Appellant claims prejudicial error when the trial judge refused to allow the defense to produce the testimony of two persons who had been at the party and were later in- terviewed by agents of AFOSI. Trial defense counsel prof- fered that the wirnesses would “go further to establish a pattern by the OSI of unduly influencing witnesses, of at- tempting to steer the evidence in this case, failing to in- vestigate proper leads that might have been exculpatory for the defense.” Trial defense counsel argued the testimony was relevant “because this was an individual who was present at the scene, was a part of that same in- vestigation, and that goes to show specifically a pattern on the part of the OSI which may tend to show that our im- peachment of the other witnesses was valid.” After assur- ing himself the two were not witnesses on the merits, the trial judge refused to allow the testimony, ruling that “methodology,” presumably AFOSI methodology was “not relevant and material to the credibility of the other witnesses.” The judge’s ruling was entirely proper. The defense had elicited, on cross-examination of four witnesses, evidence that witnesses felt AFOSI techniques were coercive and singled out appellant to the exclusion of other suspects. Such evidence goes to the weight to be afforded those witnesses’ testimony.? Trial defense counsel’s attempt to bolster this credibility evidence was collateral and not material, as the trial judge ruled. “accomplices” would tend to highlight the evidence showing his client to be culpably involved in group sexual activity with the victim. 3 United States v. McCoy, 31 M.J. 323, 328 (C.M.A.1990). 20a Rebuttal Testimony of Victim’s Sister At the conclusion of the defense case, trial counsel call- ed the victim’s sister to rebut the testimony of R.W. Ap- pellant argues that the trial judge’s failure to follow the witness sequestration rule of Mil.R.Evid. 615 was an abuse of discretion which prejudiced his right to a fair trial. The sister had been in the courtroom during most of the trial and heard the evidence. Triai counsel advised the military judge the sister approached him during the previous recess and told him she was present when the vic- tim spoke with R.W. on the telephone, and the victim did not make the remarks questioning whether she had con- sented to which R.W. testified. Trial counsel averred the sister was a surprise witness, and that the government had not planned any rebuttal to R.W.’s testimony until just moments before the court reconvened. The military judge declined to attribute “bad faith” to the prosecution. He allowed the sister’s testimony, carefully limited not to per- mit hearsay. We first note that we do not face a defense waiver, for, while neither party invoked the sequestration rule, the trial judge invoked it sua sponte, as permitted by Mil.R.Evid. 615. Nevertheless, the rule is not, as appellant has argued, an “exclusionary rule” of evidence, and it is within the trial judge’s discretion to permit a witness to testify who has heard previous testimony.* United States v. Croom, 24 M.J. 373, 375 (C.M.A.1987); United States v. Walker, 613 F.2d 1349, 1354 (Sth Cir. 1980). Prior military decisions have permitted expert witnesses ° and criminal investi- 4 Indeed, Mil.R.Evid 615 itself provides for three exceptions: the accused; designated “representatives” of the U.S.; and “persons whose presence is shown by a party to be essential to the presentation of the party’s case.” SS United States v. Croom, supra. 2la gators,® to testify after observing all or a portion of the trial.? Even where a witness has knowingly violated a trial court’s sequestration order, the witness ordinarily should be allowed to testify, but the court may impose sanctions, such as informing the jury of the witness’s actions, permit- ting cross-examination on the violation, and even con- sidering contempt. Holder v. United States, 150 U.S. 91, 14 S.Ct. 10, 37 L.Ed. 1010 (1893). Here we have no willful violation of the military judge’s sequestration order, in that the victim’s sister was not a known witness. The trial judge found the prosecution was not guilty of “bad faith,” and we agree. The circumstances shown in the record of trial support the prosecutor’s con- tention that the sister was truly a “surprise” witness. A se- questration order can only apply to a known witness. United States v. Cortwright, 528 F.2d 168, 176 (7th Cir.1975). Military judges have wide latitude in controlling the presentation of rebuttal evidence. Mil.R.Evid. 61 l(a). The testimony of the sister was on a limited issue: whether the victim made a prior inconsistent statement about consent. The trial judge applied the balancing test of Mil.R.Evid. 403 and concluded that the probative value of her testimony outweighted the danger of confusion of the issues or misleading the members. We concur. The victim’s consent or lack thereof was a critical element of proof. The victim testified she did not consent, but had practical- ly no recall of the events, and did not make an official complaint until four days later. R.W. testified the victim °* United States v. Scott, 13 M.J. 874, 877 (N.M.C.M.R.1982). ’ But the triai judge may require the witness to testify out of order to prevent contamination of the testimony. See generally, In re United States, 584 F.2d 666 (Sth Cir.1978). Accord S. Saltzburg, L. Schinasi, and D. Schleuter, Military Rules of Evidence Manual, 714 (3d ed. 1991). ne nal EE 22a questioned, on the day after the events, whether she may have consented. Under these facts, the trial judge could properly find, as he did, the sister’s testimony that the vic- tim did not make a prior inconsistent statement was rele- vant to rebut a claim of recent fabrication and was not col- lateral. In addition, the trial judge carefully limited the sister’s testimony to the fact that she did not hear the pur- ported remarks by the victim. He did not permit the witness to testify as to any of the telephone conversation she may have overheard. The defense was given latitude to explore possible bias and motive to fabricate during cross- examination. Under these facts, the judge did not err in allowing this testimony. We have considered the remaining assignments of error and find them without merit. Upon examination of the en- tire record, the findings and sentence are correct in law and fact. Accordingly, the findings and sentence, as ap- proved, are AFFIRMED. Chief Judge Dixon and Senior Judge MCLAUTHLIN concur. : US. GOVERNMENT PRINTING OFFICE: 1994—379-401/87037 _ reg eer EST PSE RI PRR LETS PRIME HTS --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0257%3A1. Public record. Not legal advice.