United States v. Yates

Opinion of the Court COX, Judge: The accused was charged with rape, carnal knowledge, sodomy, and indecent acts with a child, in violation of Articles 120, 125, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920, 925, and 934, respectively. Prior to pleas, the defense moved to suppress the accused’s confession for lack of corroboration.1 After taking evidence and hearing argument on the matter, the military judge granted the motion to suppress, finding that the confession was uncorroborated. Whereupon, the Government appealed pursuant to Article 62, UCMJ, 10 U.S.C. § 862. The Court of Military Review reversed the decision of the military judge. 23 M.J. 575 (N.M.C.M. R.1986). We granted the petition to review the following issue: WHETHER THE NAVY-MARINE CORPS COURT OF MILITARY RE [115] VIEW ERRED WHEN IT CONCLUDED THAT THE TRIAL JUDGE ERRED AS A MATTER OF LAW IN SUPPRESSING APPELLANT’S CONFESSION. On August 9, 1985, the accused’s wife took their 2-year-old daughter for a medical examination because the child had a vaginal discharge. After tests, the child was diagnosed as having gonorrhea. The accused and his wife were then tested and the results for both were negative for gonorrhea. When interviewed by the Naval Investigative Service, the accused admitted having sexual contact with the child, although he denied that he had ever contracted gonorrhea himself. He stated that he had sexual relations with a bar girl in the Republic of the Philippines in mid-July 1985 and had sexual contact with the child upon his return. Medical evidence established that gonorrhea is transmitted by sexual contact in 99 percent of the cases reported. Further, there was a five-to-ten percent probability of a false-negative on gonorrhea tests administered to the accused and his wife. Other medical testimony indicated that the standard medication used in treating gonorrhea can be purchased over the counter in some countries and “can effect a cure within 24 hours.” The military judge found that the accused’s admissions were not sufficiently corroborated as there was “no evidence independently identifying the accused as the perpetrator.” After a detailed discussion of the law and the facts of the case, the Court of Military Review held “that the trial judge erred as a matter of law in requiring the Government to prove through independent evidence alone the identity of the accused as the perpetrator of the offenses.” 23 M.J. at 579. We agree. It is widely accepted that a conviction cannot be based solely on an uncorroborated, out-of-court admission or confession of the accused. See generally McCormick on Evidence § 145 (E. Cleary 3d ed. 1984); 7 Wigmore, Evidence §§ 2070-2074 (Chadbourn rev. 1978). The rationale behind this requirement was explained by the Supreme Court in Smith v. United States, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192 (1954): Its purpose is to prevent “errors in convictions based upon untrue confessions alone,” Warszower v. United States, supra, [312 U.S. 342] at 347 [61 S.Ct. 603, 606, 85 L.Ed. 876 (1941)]; its foundation lies in a long history of judicial experience with confessions and in the realization that sound law enforcement requires police investigations which extend beyond the words of the accused. Confessions may be unreliable because they are coerced or induced, and although separate doctrines exclude involuntary confessions from consideration by the jury, Bram v. United States, supra [168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897) ]; Wilson v. United States, supra [162 U.S. 613, 16 S.Ct. 895,. 40 L.Ed. 1090 (1896)], further caution is warranted because the accused may be unable to establish the involuntary nature of his statements. Moreover, though a statement may not be “involuntary” within the meaning of this exclusionary rule, still its reliability may be suspect if it is extracted from one who is under the pressure of a police investigation — whose words may reflect the strain and confusion attending his predicament rather than a clear reflection of his past. Finally, the experience of the courts, the police and the medical profession recounts a number of false confessions voluntarily made, Note, 28 Ind.L.J. 374. These are the considerations which justify a restriction on the power of the jury to convict, for this experience with confessions is not shared by the average juror. Nevertheless, because this rule does infringe on the province of the primary finder of facts, its application should be scrutinized lest the restrictions it imposes surpass the dangers which gave rise to them. 348 U.S. at 153, 75 S.Ct. at 197. In Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954), the Supreme Court rejected the proposition that the corroborative evidence must “establish [116] the whole of the corpus delicti.” Rather, “[i]t is sufficient if the corroboration supports the essential facts admitted sufficiently to justify a jury inference of their truth.” 348 U.S. at 93, 75 S.Ct. at 164. In Smith v. United States, supra, the offense was tax evasion, which the Court described as resulting in “no tangible injury which can be isolated as a corpus delicti.” It was reasoned, therefore, that as to such a crime, “it cannot be shown that the crime has been committed without identifying the accused.” 348 U.S. at 154, 75 S.Ct. at 198. Applying Opper and Smith in Wong Sun v. United States, 371 U.S. 471, 489-90 n. 15, 83 S.Ct. 407, 418 n. 15, 9 L.Ed.2d 441 (1963), the Supreme Court stated as follows: Where the crime involves physical damage to person or property, the prosecution must generally show that the injury for which the accused confesses responsibility did in fact occur, and that some person was criminally culpable. A notable example is the principle that an admission of homicide must be corroborated by tangible evidence of the death of the supposed victim. See 7 Wigmore, Evidence (3d ed. 1940), § 2072, n. 5. There need in such a case be no link, outside the confession, between the injury and the accused who admits having inflicted it. But where the crime involves no tangible corpus delicti, we have said that “the corroborative evidence must implicate the accused in order to show that a crime has been committed.” 348 U.S., at 154, 75 S.Ct. at 198. Thus, the Opper-Smith rule does not require independent evidence identifying the accused as the perpetrator in every case. See United States v. Johnson, 589 F.2d 716 (D.C.Cir.1978); United States v. Vega-Umon, 548 F.2d 1390 (9th Cir.1977). In paragraph 140a (5), Manual for Courts-Martial, United States, 1969 (Revised edition), the President adopted the corroboration rule as set forth by the Supreme Court in Opper and Smith. See D.A.Pam. 27-2, Analysis of Contents, Manual for Courts-Martial, United States, 1969, Revised Edition, p. 27-9 (1970). Mil.R.Evid. 304(g) tracks the language of paragraph 140a (5) and merely “restates the present law of corroboration with one major procedural change.” App. 22, Analysis, Manual for Courts-Martial, United States, 1984, at A22-12. It provides: An admission or a confession of the accused may be considered as evidence against the accused on the question of guilt or innocence only if independent evidence, either direct or circumstantial, has been introduced that corroborates the essential facts admitted to justify sufficiently an inference of their truth. The “major procedural change” is contained in Mil.R.Evid. 304(g)(2), which provides that it is the sole responsibility of the military judge to “determine when adequate evidence of corroboration has been received.” MihR.Evid. 304(g)(1) states that the quantum of corroborating evidence required is that sufficient “to raise only an inference of the truth of the essential facts admitted.” In a case such as this, where the crime is one involving physical injury to a person, Wong Sun says it is sufficient under the Opper-Smith approach if the independent evidence establishes “that the injury for which the accused confesses responsibility did-in-fact occur, and that some person was criminally culpable.” 371 U.S. at 489 n. 15, 83 S.Ct. at 418 n. 15. Because the military judge stated on the record that the Government was required to corroborate the identity of the accused as the perpetrator, he was apparently acting under a misapprehension of the applicable law when he made his ruling on the suppression motion. The Court of Military Review specifically refused to express a “view as to whether the independent evidence sufficiently corroborates the accused’s confession.” 23 M.J. at 579. Thus, at trial, it is for the military judge to determine whether [117] the corroborating evidence is sufficient to “raise an inference of the truth of the essential facts admitted.” Mil.R.Evid. 304(g)(1).2 Quite aside from corroboration considerations, of course, it is for the triers of fact to determine whether the evidence as a whole is sufficient to establish all elements of the offenses beyond a reasonable doubt. The decision of the United States Navy-Marine Corps Court of Military Review is affirmed. Judge SULLIVAN concurs. Footnotes [1] For a scholarly discussion of the corroboration rules, see Cutts, Corroboration of Confessions: The Opper Rule, 13 AF JAG L.Rev. 50 (Winter 1971). [2] Although the military judge found independent evidence of sexual contact, he went on to find, unnecessarily, that there was no independent evidence that the accused was the perpetrator of that sexual contact. He stated, in part: In Prosecution Exhibits 3 and 4, the accused described acts that gave rise to the charges and specifications before the court. Specifically, either penetrate or place penis at the opening of [the victimj’s vagina, which addresses the rape, or the lesser included offense of attempt in Charge I and the two specifications thereunder; that he did commit sodomy on [the victim]; and that he did ejaculate by masturbation of semen onto file body of [the victim] sometime after the middle of July — approximately one week after the middle of July 1985. ****** [Independent evidence reasonably establishes sexual contact; either placing the penis against, mouth against, or semen onto the vagina of [the victim]. She did have gonorrhea on 9 August 1985. And, contacting gonorrhea is caused in 99% of the cases by sexual contact, such as placing the mouth onto, the penis against, or semen onto the vagina. The accused, in his confession, stated that he did each of these acts; that he did place his penis against the vagina of [the victim]; his mouth onto the vagina of [the victim]; and he did ejaculate semen on the body of [the victim]. ****** Considering the “slight” quantum of evidence required under Mil.R.Evid. 304(g), Judge Sullivan and I, unlike Chief Judge Everett, would be inclined to admit the accused’s confessions. See S. Saltzburg, L. Schinasi, & D. Schlueter, Military Rules of Evidence Manual 139 (2d ed. 1986). However, that issue does not require resolution by this Court, as the Court of Military Review left that determination to the military judge. See United States v. Tucker, 20 M.J. 52, 53 (C.M.A.1985) ("Congress expressly intended for the amended Article 62 of the Code to be construed to permit either party to appeal an adverse ruling from a Court of Military Review to this Court.”) Moreover, it is dangerously speculative to get into the ultimate issue on the record before us. As noted by Chief Judge Everett (at 117 n. 1), the record does not, as it should, contain a copy of the charge sheet. However, Chief Judge Everett indicates that the indecent-acts offense "is based on the admissions in appellant’s supplemental confession,” id. at 118, which recites two acts of oral sex with the victim. My reading of the record indicates that the indecent acts offense was likely based on admissions in appellant’s original statement, wherein the accused admitted that he ejaculated on the child’s stomach. In any event, the supplemental confession states that the accused admitted that on two prior occasions he has performed oral sex on [the victim]. Yates was unable to tell reporting agent exactly when these acts occurred, but stated they have occurred since [the victim] was two years old, and subsequent to her arrival on Okinawa in 1984. The record reflects that the child was 2A years old at the time she was diagnosed as having gonorrhea in August of 1985. As the accused admitted that the acts of oral sodomy occurred when the child was 2 years old, it is difficult to follow Chief Judge Everett’s reasoning that the acts of oral sodomy were insufficiently corroborated because they occurred "substantially before the discovery in mid-July 1985 that Yates’ daughter had gonorrhea.” Id. at 118. A reasonable inference to be drawn from the evidence is that the acts of oral sodomy took place close in time to the discovery of the gonorrhea, a date since the child was 2 years of age and subsequent to her arrival in Okinawa.