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IN THE UNITED STATES ARMY

COURT OF CRIMINAL APPEALS




U N I T E D S T A T E S,

Appellee
v.

Specialist

CHRISTOPHER J. MATTHEWS

United States Army,

Appellant



BRIEF ON BEHALF OF APPELLEE ON DUBAY HEARING
Docket No. ARMY 20030404
Tried at Wheeler Army Airfield, Hawaii, on 24 February, 18 March, 7, 9, 10, and 11 April 2003, before a general court-martial convened by the Commanding General, 25th Infantry Division (Light) and U.S. Army Hawaii, Colonel Theodore Dixon and Lieutenant Colonel Gary Smith, military judges, presiding.

TO THE HONORABLE, THE JUDGES OF THE

UNITED STATES ARMY COURT OF CRIMINAL APPEALS:
Statement of the Case

Pursuant to his pleas (R. 113), appellant was convicted of two specifications of wrongful use of cocaine in violation of Article 112a, Uniform Code of Military Justice (UCMJ)(R. 579).1 Contrary to his pleas, appellant was convicted of assault and intentionally inflicting grievous bodily harm, in violation of Article 128, UCMJ (id.).2 The military judge sentenced appellant to a bad-conduct discharge, confinement for eleven months, reduction to E-1, and forfeiture of all pay and allowances (R. 658). The convening authority approved the sentence as adjudged (Action).

On 11 February 2005, appellant submitted his brief to this Court for review.3 On 28 March 2006, the Government responded. On 16 May 2006, the Court held oral argument. On 14 July 2006, the Court ordered a hearing under United States v. Dubay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (C.M.A. 1967). The defense did not object. From 29-31 August 2006, Lieutenant Colonel (LTC) Richard Anderson (Dubay judge) presided over the Dubay hearing and on 8 September 2006, he published his findings of fact and conclusions of law (Appellate Exhibit (AE) XXIV). On 17 October 2006, this Court ordered counsel to submit any supplemental briefs. On 12 December 2006, appellant submitted his Brief on Behalf of Appellant on Dubay Hearing. The Government now responds.

Statement of Facts

Those facts necessary to resolve appellant’s assignments of error are contained in the argument section below.



Answers to the Assignments of Error4

A. THE DUBAY HEARING MILITARY JUDGE ERRED IN PERMITTING THE TRIAL MILITARY JUDGE TO TESTIFY AS TO HIS DELIBERATIVE PROCESS IN ARRIVING AT HIS PRETRIAL AND TRIAL FINDINGS.


B. THE DUBAY MIILTARY JUDGE ERRED IN HOLDING THAT IT WAS PROPER FOR THE TRIAL MIILTARY JUDGE TO PERMIT ASSISTANT TRIAL COUNSEL’S COMMENT ON PVT GIBSON’S INVOCATION OF HIS PRIVILEGE WHEN THE INVOCATION WAS THE DIRECT RESULT OF PROSECUTORIAL MISCONDUCT.
Standard of Review

This court must “accept the factual findings of the DuBay judge unless clearly erroneous.” United States v. Brownfield, 52 M.J. 40, 44 (C.A.A.F. 1999). The DuBay judge’s findings of law are reviewed de novo. United States v. Wean, 45 M.J. 461, 463 (C.A.A.F. 1997).5



Combined Law and Argument

This Court’s 14 July 2006 order instructed the Dubay judge, in relevant part, to determine:

a. Whether the military judge (Colonel (COL) Theodore Dixon) properly applied Mil. R. Evid. 512(a)(2) by allowing trial counsel to comment on PVT Gibson’s invocation of the right against self-incrimination in her rebuttal argument on findings [and];

b. What, if anything, did the military judge say concerning PVT Gibson’s credibility in light of PVT Gibson invoking the Fifth Amendment right against self-incrimination?


United States v. Matthews, Army No. 20030404 (Army Ct. Crim. App. July 14, 2004).

The Order then instructed the Dubay judge to enter findings of fact and conclusions of law concerning whether the trial judge: “(1) made any comment regarding PVT Gibson’s invocation of his Fifth Amendment right against self-incrimination, and/or (2) drew any adverse inference that the invocation made PVT Gibson less credible” (id.). The Dubay judge faithfully executed this Court’s order and properly acted on its instructions. He issued correct findings of fact and conclusions of law. Appellant’s assignments of error warrant no attention given how they attempt to deny this Court from resolving a factual dispute appellant himself previously raised.

First, the Dubay judge did not err by allowing the trial judge, with no objection from either party, to testify about his deliberative process. Moreover, the trial judge had to testify about his deliberative process for the Dubay judge to determine if he drew any adverse inference regarding Private (PVT) Gibson’s invocation of rights. Simply put, unless the trial judge explained what evidence compelled him to find appellant guilty, he could not adequately explain that he did not give weight to PVT Gibson’s invocation.

Similarly, the Dubay judge correctly ruled the trial judge acted properly by allowing the assistant trial counsel to comment on PVT Gibson’s invocation. The Dubay judge recognized what the trial judge did—allowing the assistant trial counsel to comment on PVT Gibson’s invocation amounted to an appropriate remedy under the circumstances. Finally, even if either the Dubay judge or the trial judge committed any error either at the trial or Dubay hearing, this error was harmless because this Court can disregard errors and still conclude appellant is guilty beyond a reasonable doubt of the relevant offenses.

No law supports appellant’s assertion that the Dubay judge erred when he questioned and allowed the parties to question the trial judge about his deliberative process. Although appellant relies primarily on Military Rule of Evidence (M.R.E.) 606(b) to argue his point, this rule is inapplicable here. In United States v. McNutt, 62 M.J. 16, 20 (C.A.A.F 2005), the Court of Appeals for the Armed Forces (CAAF) held M.R.E. 606(b) “applies to court members only.” Id.

Appellant’s suggestion McNutt might still permit M.R.E. 606(b) to apply to cases like this one has no merit (Brief on Behalf of Appellant at Dubay Hearing at 17). Even if M.R.E. 606(b) did apply, however, it would not help appellant. Although appellant summarily dismisses the rule’s exception allowing inquiry “on the question whether extraneous prejudicial information was brought to the attention of the members of the court-martial,” that exception seems exactly on point here, where appellant has alleged the trial military judge considered extraneous prejudicial information in determining his guilt. In fact, this was the very purpose of the Dubay hearing. Regardless, nothing in the McNutt opinion suggests M.R.E. 606(b) ever applies to military judges.6

Although McNutt happened to concern an instance where the military judge “voluntarily disclosed that he considered improper information in determining Appellant’s sentence,” McNutt did not limit its holding on the inapplicability of M.R.E. 606(b) only to instances where military judges make a voluntary disclosure, as appellant suggests. McNutt, 62 M.J. at 20. Instead, it held the rule does not apply to military judges at all.

In this case, however, the trial judge voluntarily disclosed nothing. This Honorable Court ordered him to testify at the Dubay hearing in order to resolve appellant’s allegations of error. Moreover, this Court directed the Dubay judge to determine whether the trial judge commented about PVT Gibson’s Fifth Amendment invocation and, whether the trial judge drew any adverse inference about PVT Gibson’s credibility from him invoking. To satisfactorily explain whether he drew any adverse inference from PVT Gibson invoking, the trial judge had to explain his deliberative process. As argued above, the two were inextricably related. It is no surprise, therefore, the Government, defense, and the Dubay judge all questioned the trial judge on this issue. They all recognized they could not assess the weight the trial judge gave to the issue of PVT Gibson invoking in a vacuum.

The Dubay judge also did not err by concluding the trial judge correctly applied M.R.E. 512(a)(2) when he determined the interest of justice permitted the trial counsel to comment upon PVT Gibson’s invocation. As the Government argued extensively in its earlier brief, the law does not permit witnesses on either side from refusing to answer questions about their character for truthfulness. Here, the trial judge, rather than striking PVT Gibson’s testimony as the law permitted, instead adopted a less drastic remedy of allowing the Government to argue the obvious—that you cannot believe someone who refuses to answer about whether he is truthful in spite of having immunity.7

Lastly, even if anything appellant alleges as error actually is error, he still loses. This Court is free to disregard testimony if it finds appellant guilty beyond a reasonable doubt. Ultimately, the Dubay judge found:


When rendering findings, the military judge specifically found that Private Lozada, Private Gibson, and Mrs. Matthews were untruthful in their testimony and that they had collaborated in their false testimony . . . The military judge had determined the credibility of these three defense witnesses prior to assistant trial counsel’s comment in rebuttal argument on Private Gibson’s invocation of his privilege. . . [the military judge] gave the invocation of privilege no weight because the other evidence persuaded him that Private Gibson, as well as Private Lozada and Mrs. Matthews, had collaborated their false testimony.


(AE XXIV at 4-5)(emphasis added). The trial judge was a seasoned military judge. He did not convict appellant of assaulting Sergeant (SGT) Freeman because PVT Gibson, a lying, self-serving, and implausible witness decided to invoke his Fifth Amendment when questioned about his lack of truthfulness. He did not convict appellant because the assistant trial counsel later argued on rebuttal that one should not believe such a witness. Instead, the trial judge convicted appellant because of the overwhelming evidence against him.

This Court should not allow appellant to get his proverbial cake and eat it too by allowing appellant to provide a witness with immunity to lie for him and then avoid cross-examination of that witness’s truthfulness. Appellant alleged the military judge improperly allowed the Government to comment on PVT Gibson’s invocation and improperly considered the invocation itself. Appellant did not object to this Court ordering a Dubay hearing to resolve the issue. Appellant did not object when the Government and Dubay judge questioned the trial judge about why he convicted him. Moreover, appellant himself participated in the questioning.8 Now, appellant is stuck with answers he did not want. These answers render his initial assignments of error without merit.



Conclusion

The Government submits that the Dubay military judge’s findings of fact and conclusions of law are correct. WHEREFORE, the Government respectfully requests that this Honorable Court affirm the approved findings and sentence.

MASON S. WEISS PAUL T. CYGNAROWICZ

CPT, JA MAJ, JA

Appellate Government Counsel Appellate Government Counsel
MICHELE B. SHIELDS JOHN W. MILLER II

Lieutenant Colonel, JA Colonel, JA

Acting Deputy Chief, Chief,

Government Appellate Division Government Appellate Division

Certificate of Service and Filing
I hereby certify that I served or caused to be served a copy of the foregoing on this Honorable Court and appellate defense counsel by hand on this the ___________ day of ____________ 200__.

DARLINE D. BOWMAN

Paralegal Specialist

(703) 588-6104



1 Appellant faced a maximum punishment of reduction to E-1, total forfeiture, confinement for ten years and a dishonorable discharge based on his pleas alone (R. 123).

2 Consistent with his pleas, appellant was found not guilty of negligent discharge of a firearm in violation of Article 134, UCMJ (Charge II and its Specification) and not guilty of wrongfully communicating a threat under Article 134, UCMJ (Charge III and its Specification)(R. 579).

3 In relevant part, appellant alleged in his original brief as error that, “the military judge improperly drew an adverse inference from, and allowed comment by the trial counsel on, a defense witness’s invocation of his privilege against self-incrimination” (Brief on Behalf of Appellant at 2).


4 Appellant’s issues under United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) are without merit and entitle him to no relief.

5 A DuBay hearing is unique because it is a judicially-created proceeding not specifically provided for under Article 67, UCMJ, or the Manual for Courts-Martial. Ordered by appellate courts, DuBay proceedings are designed to test conflicting post-trial allegations in an adversarial setting. A DuBay hearing is not a rehearing or trial de novo to “redetermine” the guilt of the accused; rather, it is “an extension of the initial trial proceeding.” United States v. Steck, 10 M.J. 412 (C.M.A. 1981); see also United States v. Roberts, 18 M.J. 192 (C.M.A. 1984).

6


 “Our holding in this case in no way implies that the mental deliberations of military judges are not protected or that the decision-making processes of military judges are open to scrutiny than the decision-making process of members. We hold only that M.R.E. 606(b) is not the vehicle to protect those mental processes of military judges. McNutt, 62 M.J. at 20, n. 26.

7


 Although appellant relies on United States v. Edmond, 63 M.J. 343, 348-349 (C.A.A.F. 2006), unlike Edmond, in this case, there was no finding of prosecutorial misconduct.


8 The Government notes appellate civilian defense counsel has, for second time, improperly made himself a witness to the errors he alleges.

PANEL NO. 3


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