United States v. Bramel

29 M.J. 958, 1990 CMR LEXIS 5, 1990 WL 1536
CourtU.S. Army Court of Military Review
DecidedJanuary 5, 1990
DocketACMR 8701207
StatusPublished
Cited by10 cases

This text of 29 M.J. 958 (United States v. Bramel) 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. Bramel, 29 M.J. 958, 1990 CMR LEXIS 5, 1990 WL 1536 (usarmymilrev 1990).

Opinion

OPINION OF THE COURT ON REMAND

WERNER, Judge:

Contrary to his pleas, the appellant was convicted by a general court-martial composed of officer and enlisted members of forcible sodomy on a child under the age of sixteen years on various occasions during a two-year period, in violation of Article 125 of the Uniform Code of Military Justice, 10 U.S.C. § 925 (1982) [hereinafter UCMJ].1 His approved sentence included a dishonorable discharge, confinement for twenty years and reduction to the grade of Private El.

On 22 February 1989, this court affirmed the findings of guilty and the sentence. United States v. Bramel, 28 M.J. 505 (A.C.M.R.1989). The appellant then petitioned the Court of Military Appeals for grant of review and subsequently filed a supplemental brief to his petition. The Government responded by moving that the case be remanded to this court to resolve certain contested factual questions and legal issues that had not been previously raised. Instead of remanding the case for further proceedings to consider the newly asserted matters, the Court of Military Appeals set aside and vacated our earlier decision. United States v. Bramel, 29 M.J. 295 (C.M.A.1989) (summary disposition). We have re-examined the issues previously raised by appellant as well as the matters raised for the first time.2 For the reasons set forth [961]*961below, we hold that appellant’s allegations of error and arguments thereon are without merit.

I

A

After receiving the charges against the appellant and ordering an investigation pursuant to Article 32, UCMJ, Colonel (COL) Ruggiero, the summary court-martial convening authority, provided the investigating officer with the following special instructions relative to taking the child victim’s testimony:

1. You are provided with the following additional instructions pertaining to the subject investigation. These instructions relate only to the testimony, if any, of Christopher [R],
a. During the testimony of this witness, you will insure that a partition is placed between the witness and the accused. The partition will be placed so that the accused can hear the witness’ testimony, but the witness cannot see the accused. All parties will be instructed not to call the attention of the witness to the presence of the accused. Defense counsel will have an unobstructed view of the witness at all times, and will be allowed to consult freely with the accused at any time, in such a manner as not to reveal to the witness the accused’s presence.
b. The witness will be permitted to have present during his testimony an adult person of his choosing (e.g., mother, adult relative, social worker or family friend) as a “morale supporter.” This adult will be permitted to sit next to the witness during his testimony, but will be instructed by you not to prompt the witness or otherwise interfere with the giving of testimony.
c. You will insure that the testimony of this witness is transcribed verbatim, and a copy of the transcript incorporated in the record of the hearing in lieu of summarized testimony. You will contact the Chief, Criminal Law, Office of the Staff Judge Advocate, to obtain a court reporter for this purpose.
2. I direct that your entire investigation, including the testimony of Christopher [R] be closed to the public.
3. The government may be represented at the investigation by one or more counsel designated for that purpose by the Chief, Criminal Law, Office of the Staff Judge Advocate.
4. You are advised that these instructions are provided solely to insure that a full, fair and impartial investigation of the charges is conducted in this case. You should not draw any inference regarding the possible guilt or innocence of the accused, or the proper disposition of the charges referred to you for investigation, based upon these instructions.

Captain (CPT) Chabot, COL Ruggiero’s legal advisor and the Government’s legal representative at the Article 32 investigation, testified that she prepared a letter for his signature containing the aforementioned special instructions after learning from the child’s mother that he would not testify in the presence of the appellant. It was the mother’s opinion that the child was afraid of men in general and of the appel[962]*962lant in particular due to the sexual abuse he had suffered. CPT Chabot did not attempt to corroborate this information with a professional examination and opinion. Instead, she obtained a copy of a letter that was used in an earlier pretrial investigation involving child abuse in which the Article 32 investigating officer was directed to employ a partition during the child’s testimony. She then adapted it for use in this case and submitted it to COL Ruggiero who signed it without discussing its contents with her. Unbeknownst to CPT Chabot, the military judge at the court-martial had determined that the use of the partition during the pretrial investigation was improper.3 Appellant’s defense counsel did not complain to COL Ruggiero about the substance of the instructions or the procedure involved in their issuance.

The defense counsel did, however, file written objections to the use of the partition on substantive grounds before the investigating officer claiming, inter alia, that the partition prevented the appellant from confronting the child and hindered cross-examination. The investigating officer noted appellant’s objections but nevertheless directed that the child testify from behind the partition, shielded from the appellant but in view of the appellant's defense counsel. After his objections were denied, appellant requested permission to act as his own attorney but only for the limited purpose of cross-examining the child. This request was also denied by the investigating officer. Throughout the hearing, the appellant was represented by both military and civilian counsel who conducted an extensive inquiry into the child’s competence to testify and into the truth and veracity of the child’s statements.

The defense counsel also argued that the procedure employed by CPT Chabot that induced COL Ruggiero to issue the special instructions denied the appellant a fair and impartial Article 32 investigation. The defense essentially asserted that CPT Chabot’s advice to COL Ruggiero as to the legality of using a partition was improper in two respects: (1) it failed to advise the colonel of the trial judge’s ruling on this matter in another case and (2) it induced him to usurp the independence and discretion of the investigating officer and thereby amounted to a denial of appellant’s presumption of innocence and resulted in unlawful command influence. The investigat-' ing officer rejected these objections as well.

B

At trial, the appellant reasserted his pretrial objections and moved that the military judge order a new pretrial investigation pursuant to Article 32, UCMJ. The military judge made findings of fact that, although the use of the partition inconvenienced defense counsel, it did not materially interfere with counsel’s ability to consult with the accused, to observe and hear the child’s testimony, or to conduct effective cross-examination.

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Cite This Page — Counsel Stack

Bluebook (online)
29 M.J. 958, 1990 CMR LEXIS 5, 1990 WL 1536, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-bramel-usarmymilrev-1990.