United States v. Belfield

24 M.J. 619, 1987 CMR LEXIS 226
CourtU.S. Army Court of Military Review
DecidedApril 8, 1987
DocketCM 445104
StatusPublished
Cited by1 cases

This text of 24 M.J. 619 (United States v. Belfield) is published on Counsel Stack Legal Research, covering U.S. Army Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Belfield, 24 M.J. 619, 1987 CMR LEXIS 226 (usarmymilrev 1987).

Opinion

OPINION OF THE COURT ON REMAND

FELDER, Senior Judge:

Contrary to his pleas at a general court-martial, the officer members convicted appellant of rape, in violation of Article 120, Uniform Code of Military Justice [hereinafter cited as UCMJ], 10 U.S.C. § 920 (1982). His approved sentence extends to a bad-conduct discharge, confinement for two years, total forfeitures, and reduction to Private E-l. Upon initial review this court affirmed the findings of guilty and the sentence. United States v. Belfield, CM 445104 (A.C.M.R. 13 Sep. 1985). On 24 July 1986, 22 M.J. 414, the United States Court of Military Appeals remanded the case to this court for further review in light of Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986) and United States v. Cordero, 22 M.J. 216 (C.M.A. 1986). The remand directed our consideration of the following issues:

I
THE CONVENING AUTHORITY ERRED BY REFUSING TO GIVE APPELLANT A NEW TRIAL BECAUSE THE TESTIMONY OF A CO-ACCUSED AT HIS OWN TRIAL WAS NEWLY DISCOVERED EVIDENCE WHICH WOULD PROBABLY CHANGE THE RESULT OF A SECOND TRIAL.
II
THE MILITARY JUDGE ERRED BY ADMITTING INTO EVIDENCE THE STATEMENT OF A CO-ACCUSED THEREBY DENYING APPELLANT AN OPPORTUNITY TO CONFRONT AND CROSS-EXAMINE THE WITNESSES AGAINST HIM.

Denial of Petition for Rehearing

With regard to the first issue on remand, we conclude the convening author[620]*620ity did not err by denying the appellant’s petition for a rehearing premised on newly discovered evidence. Private (PVT) P was separately tried for his involvement in the incident which led to appellant’s conviction. The testimony of PVT P at his own trial was decidedly self-serving with respect to his own actions. However, the facts he related concerning appellant’s involvement were consistent with the testimony of the victim and the eyewitness who testified at appellant’s trial.

At his trial PVT P testified that appellant was initially positioned between the victim’s legs and was subsequently lying on top of her. His testimony indicates that the victim’s pants and underwear were pulled down by either appellant or the other co-accuseds involved in the group encounter. According to PVT P, appellant was aggressive and it appeared that he was having intercourse or trying to have sex with the victim when appellant was lying on top of her. PVT P further testified that while he believed the victim was willing to have intercourse with him at the time, and possibly with others subsequently, he did not believe the victim wanted to have sex with appellant.

On the basis of the entire record we are satisfied that the testimony of PVT P at his own trial would probably not have caused a different result if it had been offered at appellant’s court-martial. Nothing new was presented at PVT P’s trial; the same factual scenario was established. Significantly, the testimony of PVT P corroborated the testimony of the victim that she did not consent to sex with appellant. Viewed as a whole, the testimony in question was largely cumulative with the evidence adduced at appellant’s trial. Moreover, none of PVT P’s testimony possessed any additional impeachment value from appellant’s perspective. See United States v. Thomas, 11 M.J. 135, 138 (C.M.A.1981), quoting Mesarosh v. United States, 352 U.S. 1, 9, 77 S.Ct. 1, 5, 1 L.Ed.2d 1 (1956) (“new evidence which is ‘merely cumulative or impeaching’ is not, according to the often-repeated statement of the courts, an adequate basis for the grant of a new trial”); United States v. Chadd, 32 C.M.R. 438 (C.M.A.1963); United States v. Petersen, 7 M.J. 981 (A.C.M.R.), petition denied, 8 M.J. 174 (C.M.A.1979); Article 73, UCMJ, 10 U.S.C. § 873.

The Confrontation Clause

Appellant and four other male soldiers were involved in the incident with PVT H. After PVT H made a formal complaint to criminal investigators, Private First Class (PFC) Harmes was interviewed. Specialist Four (SP4) Wood was then questioned by Agent Derrico, who fully advised him of his rights.1 Agent Derrico informed SP4 Wood that PFC Harmes and PVT H had already given statements concerning the incident. Agent Derrico did not mention appellant’s name as a person allegedly involved in the incident. SP4 Wood waived his rights and rendered a sworn statement which incriminated himself and appellant in the rape of PVT H.2

The statement by SP4 Wood was largely consistent with the complaint made by the victim and the statement given by the eyewitness, PFC Harmes. Of particular importance, however, are certain additional facts that appear in SP4 Wood’s statement. SP4 Wood stated that appellant’s zipper was unfastened and that appellant’s erect penis was exposed immediately before appellant assumed a horizontal position over PVT H. SP4 Wood explained that he assumed appellant had accomplished pen[621]*621etration because appellant later voiced the need “to go up and wash his [penis].”

SP4 Wood did not testify at appellant’s trial. It was established that, if called, SP4 Wood would refuse to testify because he was pending trial for his participation in the same incident.3 As a result, the government successfully moved, over defense objection, to admit SP4 Wood’s sworn statement pursuant to Mil.R.Evid. 804(b)(3).

The critical question at this juncture is whether SP4 Wood’s extrajudicial statement possessed sufficient indicia of reliability so as to permit its admission into evidence despite the lack of face-to-face confrontation at the trial. See Lee v. Illinois; United States v. Cordero. The Court of Military Appeals has recently encapsulated the relevant considerations.

[I]n order for out-of-court statements to be admissible under the Confrontation Clause, it is preferable for face-to-face confrontation to occur at trial. Failing that, it is essential that the statements bear “indicia of reliability” such that “there is no material departure from the reason of the general rule.”

United States v. Hines, 23 M.J. 125, 131 (C.M.A.1986). See also Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980).

The government relies on United States v. Robinson, 16 M.J. 766 (A.C.M.R.1983), for the proposition that SP4 Wood’s statement possessed “intrinsic indicia of trustworthiness” in that it was written, sworn, and voluntary. To be sure, these are important considerations, but a more particularized showing is required for constitutional purposes. There must be an independent showing of the trustworthiness4 of the specific allegations against appellant. 16 M.J. at 768. A showing that establishes traditional voluntariness is simply not enough to demonstrate “trustworthiness.”

The admissibility of SP4 Wood’s statement was litigated at the end of the government’s case-in-chief.

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Related

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28 M.J. 544 (U S Air Force Court of Military Review, 1989)

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Bluebook (online)
24 M.J. 619, 1987 CMR LEXIS 226, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-belfield-usarmymilrev-1987.