United States v. Callara

21 M.J. 259, 20 Fed. R. Serv. 1126, 1986 CMA LEXIS 19175
CourtUnited States Court of Military Appeals
DecidedFebruary 3, 1986
DocketNos. 50008/MC; NMCM 83-4919
StatusPublished
Cited by15 cases

This text of 21 M.J. 259 (United States v. Callara) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Callara, 21 M.J. 259, 20 Fed. R. Serv. 1126, 1986 CMA LEXIS 19175 (cma 1986).

Opinion

Opinion of the Court

EVERETT, Chief Judge:

Lance Corporal Mark L. Callara was tried by a general court-martial composed of officer and enlisted members. Contrary to his pleas, he was found guilty of wrongful possession of a combat knife and intentional infliction of grievous bodily harm, in violation of Articles 92 and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 892 and 928, respectively.1 His sentence included a dishonorable discharge, confinement and forfeiture of $382.00 pay per month for 2 years and reduction to pay grade E-l. The convening authority approved the findings and sentence, and the Court of Military Review affirmed. We granted review to determine this issue:

WHETHER PREJUDICIAL ERROR OCCURRED WHEN THE MILITARY JUDGE DENIED DEFENSE’S MILITARY RULES OF EVIDENCE 304(d)(1) MOTION TO SUPPRESS APPELLANT’S ORAL STATEMENT MADE TO AN N.I.S. AGENT BUT NOT DISCLOSED TO THE DEFENSE UNTIL APPELLANT HAD TESTIFIED IN A MANNER INCONSISTENT WITH THE ORAL STATEMENT AND THE DEFENSE HAD RESTED.

I

Appellant and a group of Marines were involved in a fight which terminated with appellant stabbing Corporal John Stout several times with a knife. During appellant’s direct examination, he claimed that the stabbing was done in self-defense. Callara testified that Stout “sucker punched” him in the mouth and that he “went down” with his right arm hitting the ground. By the time he “got up,” Stout “was through with Manbeck and he came right after me.” At that time, appellant “pulled” his knife and told Stout to “[bjack off.” However, Stout eventually “charged” him and got the best of him, hitting him in the face, shoulder, and side. Appellant then stabbed Stout because he could not “get away from him.”

In answer to the defense counsel’s question as to “what damage was done to you by the blow to your mouth and to your arm when you hit the deck?”, Callara stated that “my arm got scraped up pretty bad and my mouth and my lip got scraped up a lot, and I had something like a brush burn on my chin.” Then, the defense counsel asked Callara whether these injuries had been photographed. Callara replied that they had been photographed the morning after the fight, and he identified photographs as “accurately” showing the damage to his right arm, chin, and mouth.

During Callara’s cross-examination, trial counsel inquired whether it was his “sworn testimony” that “[t]hese wounds” he had shown the court were “caused” by Stout. Appellant answered in the affirmative. Trial counsel’s next question was, “You are not lying, are you?”; and Callara gave a negative reply.

After the defense rested, trial counsel announced that he had rebuttal witnesses; and the judge granted a brief recess for the defense counsel to interview one of these witnesses. When court resumed, the [261]*261defense moved to suppress the testimony of Special Agent Hank Bell of the Naval Investigative Service (N.I.S.) because of asserted noncompliance by the Government with Mil.R.Evid. 304(d)(1), “concerning disclosure prior to arraignment of all statements written or oral known to the Government that are relevant to the case within control of the armed forces.”

Defense counsel emphasized that [t]he defense just learned of this evidence interviewing the rebuttal witness Special Agent Bell. He is the NIS Agent who made the investigative report, nowhere in his report — which was completely disclosed to the defense prior to arraignment — was any mention of such conversation made.
The purpose for my stating that last bit of offer of proof, judge, is the objection, of course, normally would be made prior to pleas, to suppress any sort of statement. I’m just demonstrating the unusual circumstance which requires us to raise it to this 39(a) session well after pleas and requests the military judge consider it in the interest of justice. Questioned by the military judge about

Bell’s expected testimony, the prosecution responded:

[0]n the 16th of March of 1983, after apprehending Callara and after subsequent advisement of rights and he exercised his right to and remained silent. Agent Bell proceeded to take the accused, put him in the vehicle in order to drive him over to the navy hospital to take pictures of the wounds that were visible on the face of Lance Corporal Callara. That wound being Defense Exhibit C. While they were enroute or driving enroute to the hospital, Lance Corporal Callara asked Agent Bell where they were going. Agent Bell responded, “I’m taking you over to the hospital so that we can take pictures of the wounds on your face”; at which time the accused responded, “Oh, I got these wounds a couple of days ago in a football game.”

The military judge then ascertained that the conversation between Agent Bell and Callara had not been “reduced ... to writing in any naval investigative report,” but that the defense was “on notice from the outset of this case that Agent Bell was the controlling agent with regard to investigation of this case.” Trial counsel also remarked that “[t]he Government provided a complete copy of everything that it had with the NIS report, including the name of the NIS agent.”

The defense acknowledged receipt of “an almost complete file” but emphasized that, although interviewed extensively, Special Agent Bell had failed to “volunteer the fact that he had a conversation with the accused.” Moreover, trial counsel did not “volunteer to the defense that there [were] any confessions or admissions by the accused.”

In denying the motion to suppress, the judge explained:

Well, it appears to me that when we talk about a confession or admission under Rule 304, an admission is defined in the rule as [a] self-incriminating statement falling short of acknowledgment of guilt, even if it was intended to be by its maker exculpatory. Up until the time the accused has indicated by his testimony in this court-martial that those injuries were a result of blows from Stout. I don’t believe that this statement by him constitutes a confession or necessarily a self-incriminating statement, and I don’t believe that it is absolutely required that the government must provide to the defense or inform the defense of every single solitary statement that an individual makes when these individuals, the investigators are speaking to them. The defense is at liberty to inquire of a witness or potential witness, naval investigative service officer in this case in matters that they have not disclosed in their reports that the accused may have brought forth to them; and you’re certainly at liberty to inquire on cross-examination as to the nature of this statement.

Thereafter, Special Agent Bell testified that appellant had told him about receiving the facial wounds in a football game. Later, in instructing the court members, the [262]*262military judge treated Bell’s testimony in this manner:

You heard during the trial, gentlemen, evidence of a prior inconsistent statement of the accused; that being the accused’s testimony that defense exhibits which noted facial injuries to the accused, photographs was sustained in his combat with Lance Corporal Stout. You heard the testimony of Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
21 M.J. 259, 20 Fed. R. Serv. 1126, 1986 CMA LEXIS 19175, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-callara-cma-1986.