United States v. Flores-Galarza

40 M.J. 900, 1994 CMR LEXIS 368, 1994 WL 525014
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedSeptember 2, 1994
DocketNMCM No. 9400948
StatusPublished
Cited by14 cases

This text of 40 M.J. 900 (United States v. Flores-Galarza) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps 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. Flores-Galarza, 40 M.J. 900, 1994 CMR LEXIS 368, 1994 WL 525014 (usnmcmilrev 1994).

Opinion

MOLLISON, Senior Judge:

The principal issue in this interlocutory appeal by the Government is whether the Government preserved its right of appeal by providing the military judge with timely notice of appeal, as required by Article 62, Uniform Code of Military Justice [UCMJ], 10 U.S.C. § 862 (1988), and Rule for Courts-Martial [R.C.M.] 908, Manual for Courts-[902]*902Martial, United States, 1984. We conclude the Government failed to preserve its right of appeal, and we are, therefore, precluded from considering the appeal on its merits.

Background

The facts are not in dispute. On 8 July-1993, the appellee’s wife reported to the Family Advocacy Representative at Naval Submarine Base, Kings Bay, GA, that the appellee had engaged in child sexual abuse. The allegations were also reported to local authorities and to the Naval Criminal Investigative Service [NCIS]. NCIS agents interviewed the appellee on 16 July 1993. Following an advisement and waiver of rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Article 31(b), UCMJ,1 the agents obtained the appellee’s sworn, written confession to acts of sexual abuse of his stepdaughter and niece. The matter was then considered by the Family Advocacy Case Review Subcommittee of the Family Advocacy Program.2 The subcommittee directed the Family Advocacy Representative to see the appellee and schedule a psycho-sexual evaluation of him for purposes of determining his suitability for acceptance into a treatment program. On 27 July 1993, the Family Advocacy Representative, a civilian, met with the appellee to explain the program to him, inform him of the recommendations of the case review subcommittee, and schedule the psycho-sexual evaluation. The Family Advocacy Representative informed the appellee that the psycho-sexual assessment would be returned to her and that it would be presented to the case review subcommittee and the Bureau of Naval Personnel to determine whether the appellee would be accepted into the program. The Family Advocacy Representative did not inform the appellee of his Article 31(b) rights, except to say that anything he told her could be and would be used against him if he were court-martialed. The appellee also signed a Family Advocacy Program Privacy Act Statement in which he acknowledged that information was being collected “pertaining to the identification, evaluation, intervention, treatment, prevention and follow-up of victims and perpetrators of abuse or neglect,” and that disclosure of the information was “voluntary; however, failure to provide information may delay the provision of appropriate services.” Appellate Ex. XXII. The Family Advocacy Representative then scheduled an appointment for the appellee with a civilian psychologist under contract with the Navy.3 The appellee was evaluated by the psychologist on 28 July 1993, and the psychologist’s report was provided to the Family Advocacy Representative. The report was based upon an interview and psychological testing of the appellee. The psychologist did not advise the appellee of his Article 31(b) rights; however, the appellee provided him a signed “ACKNOWLEDGEMENT OF NON-CONFIDENTIALITY AND WAIVER,” in which the appellee specifically acknowledged that any information regarding a sexual offense on his part may be reported to prosecutors and law enforcement personnel. The Family Advocacy Representative apparently obtained no admissions from the appellee. On the other hand, the psychologist’s written evaluation reflects that the appellee stated he had suffered blackouts in the past and owing to his consumption of alcohol did [903]*903not recall the acts of child abuse.4 It further reflects that the appellee stated he had raped his wife on numerous occasions in the past when he was drinking.

The appellee was subsequently charged inter alia with forcible sodomy of his wife and indecent acts with children in violation of Articles 125 and 134, UCMJ, 10 U.S.C. §§ 925, 934 (1988), respectively. The charges were referred to trial by general court-martial. The Government intended to use the admissions to the psychologist as proof on the charge of forcible sodomy and to rebut any denial by the appellee of the child abuse. Pursuant to R.C.M. 905(b)(3), the appellee moved to suppress the testimony of the psychologist at a pretrial session of court conducted in accordance with Article 39(a), UCMJ, 10 U.S.C. § 839(a) (1988 & Supp. IV 1992), on Friday, 27 May 1994. At the conclusion of the hearing, the military judge stated that the appellee’s motion to suppress was granted, however, he would give “full findings of fact and conclusions of law later.” Record at 248a. He further stated that in the absence of an agency relationship between the Family Advocacy Representative or the psychologist and NCIS, there was no requirement for the representative or the psychologist to have given the appellee warnings under Article 31(b). However, the military judge further opined that an instruction of Commander, Naval Medical Command, NAVMEDCOMINST 6320.22 of 19 Jan 1989, the purpose of which was to establish guidance for the operation of the Family Advocacy Program at Medical Treatment Facilities, created “a hybrid kind of situation” whereby the Family Advocacy Representative was required to advise the appellee of his rights under Article 31(b), and since the Family Advocacy Representative had not done so, the matters later obtained by the civilian psychologist must be suppressed. In summary, he concluded the appellee’s admissions to the psychologist must be suppressed because the Navy “did not follow its rules,” which “were set up for the benefit of the class of people including [the appellee]....” Record at 248a-49.

The following colloquy then occurred:

TC: [T]he government would again notify the court that it is contemplating an appeal under RCM 908. As the Government understands the rule, specifically with regard to the Family Advocacy evidence, written notice of appeal is required within 72 hours. Seventy-two hours would be Monday, [30 May 1994] a holiday.
MJ: You can make it Tuesday [31 May 1994],
TC: Yes, sir.
MJ: Well, then it’s more important than ever that you both give me your proposed findings of fact. And if you intend to appeal — intend to file this appeal, please file the moti — your findings of fact with the notice of appeal.
TC: Yes, sir.
MJ: And I will proceed with great vigor.

Record at 256-57.

The hearing then adjourned at 1227, Friday, 27 May 1994. The 72-hour period expired at 1227, Monday, 30 May 1994, the Memorial Day holiday.5 The record further reflects the Government served its notice of appeal on the military judge at 1122, Tuesday, 31 May 1994. The notice recites that “[a]n electronic version of the government’s notice was provided to the military judge at 1326 horns, [Monday] 30 May 1994.” Thus, both forms of service were beyond the 72-hour period.

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Bluebook (online)
40 M.J. 900, 1994 CMR LEXIS 368, 1994 WL 525014, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-flores-galarza-usnmcmilrev-1994.