United States v. Evans

27 M.J. 34, 1988 CMA LEXIS 2594, 1988 WL 97992
CourtUnited States Court of Military Appeals
DecidedSeptember 28, 1988
DocketNo. 52,097; NMCM No. 84 2764
StatusPublished
Cited by20 cases

This text of 27 M.J. 34 (United States v. Evans) 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. Evans, 27 M.J. 34, 1988 CMA LEXIS 2594, 1988 WL 97992 (cma 1988).

Opinion

Opinion of the Court

EVERETT, Chief Judge:

Contrary to his pleas, Evans was convicted by a general court-martial composed of officer members of unauthorized absence, larceny, two robberies, forgery of a Treasury check, five assaults with intent to rob, and communication of a threat, in violation of Articles 86, 121, 122, 123, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 886, 921, 922, 923, and 934, respectively. The sentence adjudged by the members was a dishonorable discharge, confinement for 30 months, forfeiture of $450.00 pay per month for 30 months, and reduction to pay grade E-l. The convening authority approved these results, and the Court of Military Review affirmed in a short-form opinion. We granted appellant’s petition for review to consider:

WHETHER THE MILITARY JUDGE ERRED TO THE MATERIAL PREJUDICE OF SUBSTANTIAL RIGHTS OF APPELLANT WHEN HE DENIED DEFENSE’S MOTION FOR MISTRIAL AFTER THE MEMBERS HEARD INADMISSIBLE EVIDENCE OF AN OUT-[35]*35OF-COURT IDENTIFICATION OF APPELLANT.

I

The robbery and assault charges against Evans involved an armed robbery at the Naval Regional Medical Center in Oakland, California, during which two masked men took cash and drugs. In summarizing the Government’s evidence during his opening statement to the court members, trial counsel informed them that various witnesses would testify to the circumstances of the robbery; that other witnesses would place appellant with one John Hill shortly before and soon after the robbery; and that Hill would testify that he and appellant perpetrated the armed robbery. Trial counsel prepared the court members to hear

certain things that are ... not too good about Mr. Hill. Now, he will tell you that he is a convicted felon and that for these robbery charges and these assault charges he went to a general court-martial in April of 1982 and was convicted. He will also tell you that he agreed to testify against SA Evans as a result of a pretrial agreement, in that he would receive lesser punishment than could be awarded or that the punishment would be limited to 18 months’ confinement at hard labor instead of whatever the judge or the jury would have awarded him and that his testimony against SA Evans, initially in an Article 32 Investigation, was done so — was prompted by the promises made that he would receive a reduced sentence.
Then you will also hear that HM Hill was a cocaine addict. The reason that he planned the robbery of the hospital was that he was out of money, had no money to buy cocaine, and that he felt that since the hospital did use cocaine in their ear, nose, and throat treatments that he could obtain that and continue getting his high.

Later in his opening statement trial counsel asserted:

And finally, you will also hear testimony that an individual by the name of Karen Cobb identified SA Evans as being at her brother’s apartment — Preston Cobb’s apartment — approximately two days after the robbery and that she saw him in a back alley outside of her apartment place a black bag with a long strap in some bushes and that the next day when the FBI contacted her she took them to the spot where the FBI Agent, John Schmitz, who will be here to testify, found a Bell and Howell black camera case with a long black strap and in it the valium, the cocaine, and the morphine taken from the hospital.

During the Government’s case-in-chief, four victims of the robbery described the circumstances; but they could only identify the perpetrators as two black males around 511" and 5'7" in height. Thereafter, trial counsel announced that he intended to call, as a witness, Special Agent John Schmitz of the FBI. At this point, appellant’s civilian counsel asked for an Article 39(a), UCMJ, 10 U.S.C. § 839(a), session and then explained to the military judge that it was his

understanding that Karen Cobb was going to testify as to the identification of the accused a couple of days after the alleged robbery. And after talking with LT Downing [trial counsel] just now, it’s my understanding that Agent Schmitz may testify that he showed a picture of the accused to Karen Cobb ... who allegedly will testify that she saw the accused a couple days subsequent to the alleged robbery throw the black camera case, which had been taken from LCDR Marine [one of the victims], into the bushes and it was subsequently retrieved by the FBI.

Civilian defense counsel expressed concern that exhibiting the picture to Ms. Cobb when she made the identification had been “unnecessarily suggestive,” so that her identification might itself be subject to suppression under Mil.R.Evid. 321(d)(2). This colloquy ensued:

TC: The only thing that the agent will testify to is where he found these items, first of all.
IC: We have no objection to that.
[36]*36TC: And secondly, he will simply identify what he showed Karen Cobb ... it’s simply a copy of a driver’s license. So, all he will do is identify the exhibit as being that prepared by him to show to Karen Cobb. He is not going to testify as to what Karen Cobb said. Karen Cobb will be here in person to do that.
MJ: Well, what was the sequence of her identification of the accused — how was it she came to say that this accused was the individual she saw throwing the bag away? Was it after the agent showed this to her and said, “Is this the fellow you saw?”
IC: Yes, sir.
MJ: And you’re saying that this should be excluded because it—
IC: Unnecessarily suggestive out-of-court ID.

After further discussion, the judge ruled that

based on the requirement of the agent for the witness to provide a description and the witness’ stated belief that she would be able to identify the individual the court does not find that the showing of a single photograph is unnecessarily suggestive. If, however, you wish to explore with the witness’ cross-examination as a matter of weight the validity of the identification then you are at liberty to do so.

Mr. Schmitz then testified that, as a result of an anonymous call, he had interviewed Karen Cobb, who lived in an apartment on Trask Street in Oakland, California. She told him that she had observed someone “take ... a package of some kind, and put it in some bushes along Trask Street.” Schmitz then identified a “camera case which” he had “found in the bushes next to the apartment where Karen Cobb pointed.” Schmitz next identified “a copy of a California driver’s license for a Quince Lee Evans,” which he had shown to Karen Cobb during the interview. His purpose was “[t]o determine if she could identify this individual as being the individual that she observed putting the item that she said she saw into the bushes.”

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Cite This Page — Counsel Stack

Bluebook (online)
27 M.J. 34, 1988 CMA LEXIS 2594, 1988 WL 97992, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-evans-cma-1988.