United States v. Chisum

75 M.J. 943, 2016 CCA LEXIS 759, 2016 WL 7028920
CourtUnited States Air Force Court of Criminal Appeals
DecidedNovember 29, 2016
DocketACM S32311
StatusPublished
Cited by14 cases

This text of 75 M.J. 943 (United States v. Chisum) is published on Counsel Stack Legal Research, covering United States Air Force Court of Criminal 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. Chisum, 75 M.J. 943, 2016 CCA LEXIS 759, 2016 WL 7028920 (afcca 2016).

Opinion

PUBLISHED OPINION OF THE COURT

J. BROWN, Senior Judge:

Contrary to his pleas, Appellant was convicted by a special court-martial composed of officer members of using cocaine on one occasion, in violation of Article 112a, UCMJ, 10 U.S.C. § 912a.1 The court sentenced Appellant to a bad-conduct discharge, confinement for 3 months, forfeiture of $1,031.00 pay per month for 3 months, reduction to E-l, and a reprimand. The convening authority approved only 49 days of confinement, but otherwise approved the sentence as adjudged.

Before us, Appellant claims: (1) the military judge erred when he denied a defense motion to compel production of mental health records for in camera review; (2) his conviction of using cocaine is factually insufficient; and (3) improper findings arguments by trial counsel warrant reversing his conviction. Although we concur that the military judge erred in denying a defense motion to compel production of the mental health records for two witnesses for an in camera review, we find that this error did not materially prejudice a substantial right of Appellant. We further conclude that the other alleged errors do not entitle Appellant to relief. Accordingly, we affirm.

Background

In January 2015, Appellant was convicted of using cocaine, with Airman Basic (AB) AK during a 2012 trip to New Orleans, Louisiana. The evidence of this use was primarily the testimony of AB AK and another witness.

AB AK testified that, in 2012, Appellant went with him to New Orleans, Louisiana, intending to buy and use the drug ecstasy. They were not able to find that drug, however, and instead purchased a baggie of cocaine, which they shared by snorting it through a dollar bill rolled into a straw in an alley near Bourbon Street. When they had finished using that bag of cocaine, Appellant and AB AK returned to the dealer who had sold them the drug. They purchased more cocaine, and used it in the manner they had used the drug earlier.

The second witness, AB CR, testified that while on a trip to New Orleans with Appellant and AB AK, he saw Appellant holding a bag containing a white powdery substance. He also recalled that AB AK and Appellant walked into an alley and, from across the street, saw Appellant raise his hands up to [946]*946his nose. AB CR did not witness any of the other alleged drug offenses against Appellant as testified to by AB AK at trial.

The credibility of these two witnesses, as well as their ability to accurately perceive and recall what occurred that evening in New Orleans, were critical to the Government’s ability to prove, beyond a reasonable doubt, that Appellant used cocaine in New Orleans.2

I. Discovery of Menial Health Records

Appellant first argues that the military judge erred when he denied a Defense request to compel the production, and perform an in camera review, of the mental health records of the Government’s two key witnesses, AB AK and AB CR.3

The information the Defense provided to the military judge to support their request for an in camera review was as follows:

AB AK: The witness told defense counsel that, as a result of being a habitual drug user, he has experienced memory issues. AB AK also disclosed that he had seen mental health providers, discussed his memory problems with them, and received a mental health diagnosis.4 In addition, the military judge was informed' that AB AK previously testified at another court-martial two weeks prior and that the military judge in that ease, after conducting an in camera review, determined that a portion of AB AK’s mental health records were properly releasable to counsel in that case.5

AB CR: This witness testified in a closed hearing that he has had memory issues, and potentially suffered from post-traumatic stress disorder since returning from a prior deployment to Iraq. AB CR also admitted that he told Appellant’s counsel that he suffered from paranoia and that he felt the need to have a sanity board. He testified that he talked to military mental health providers-about his memory issues and the facts and circumstances surrounding his court-martial.

The military judge concluded that Appellant failed to articulate a specific factual basis demonstrating a reasonable likelihood that the requested records would yield information admissible under an exception to Mil. R. Evid. 513. The military judge also found the information sought, despite not reviewing it in camera, to be cumulative with material already available to the Defense through non-privileged means. The military judge denied the Defense motion for production and in camera review, and elected not to attach any of the mental health records as sealed appellate exhibits for further appellate review.

A. When would a military judge abuse his discretion by failing to conduct an in camera review of mental health records?

We review a trial judge’s conclusion that an appellant failed to provide a sufficient basis for an in camera review for an abuse of discretion. See United States v. Wuterich, 67 [947]*947M.J. 63, 65 (C.A.A.F. 2008); United States v. Lyson, ACM 38067, unpub. op. at 14, 2013 WL 5436639 (A.F. Ct. Crim. App. 16 September 2013).

Rule for Courts-Martial (R.C.M.) 701 addresses discovery in courts-martial. R.C.M. 701(a)(2)(B) requires that the defense be permitted to inspect the “results or reports of physical or mental examinations ... which are within the possession, custody, or control of military authorities, ... and which are material to the preparation of the defense.” R.C.M. 701(f) adds, however, “Nothing in this rule shall be construed to require the disclosure of information protected from disclosure by the Military Rules of Evidence.”

R.C.M. 703 governs the production of witnesses and evidence. This rule entitles both parties to the production of evidence which is relevant and necessary. R.C.M. 703(f)(1). Despite this, neither party is entitled to the production of evidence which is destroyed, lost, or otherwise not subject to compulsory process. R.C.M. 703(f)(2).

“Normally, in camera review is an appropriate mechanism to resolve competing claims of privilege and right to review information.” United States v. Wright, 75 M.J. 501, 510 (A.F. Ct. Crim. App. 2015); United States v. Bowser, 73 M.J. 889, 897 (A.F. Ct. Crim. App. 2014), aff'd 74 M.J. 326 (C.A.A.F. 2015) (mem.). There is not a “cognizable harm to a privilege it holds merely because the military judge orders documents to be produced for in camera review.” Wright, 75 M.J. at 510. However, in camera review is not automatically appropriate every time one party seeks information over which another claims privilege. Id.

Military Rule of Evidence 513 addresses the disclosure of psychotherapist-patient records. Generally, this privilege provides that

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Cite This Page — Counsel Stack

Bluebook (online)
75 M.J. 943, 2016 CCA LEXIS 759, 2016 WL 7028920, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-chisum-afcca-2016.