United States v. Gordon

18 M.J. 463, 1984 CMA LEXIS 17465
CourtUnited States Court of Military Appeals
DecidedOctober 1, 1984
DocketNo. 44493; CM 441410
StatusPublished
Cited by1 cases

This text of 18 M.J. 463 (United States v. Gordon) 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. Gordon, 18 M.J. 463, 1984 CMA LEXIS 17465 (cma 1984).

Opinion

Opinion of the Court

EVERETT, Chief Judge:

A general court-martial composed of officer and enlisted members in Mannheim, Germany, on July 7 and 8, 1981, convicted appellant, contrary to his pleas, of housebreaking and rape, in violation of Articles 130 and 120, Uniform Code of Military Justice, 10 U.S.C. §§ 930 and 920, respectively. He was sentenced to a dishonorable discharge, confinement at hard labor for 3 years, and reduction to E-l. After all intermediate reviewing authorities approved appellant’s conviction, we granted review of this issue:

[464]*464WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF THE APPELLANT BY ADMITTING INTO EVIDENCE THE PHOTOGRAPHS OF THE LINEUP OVER DEFENSE OBJECTION.

We now affirm.

I

Sylvia Crusius, the alleged rape victim, was an unmarried twenty-nine year old German national who lived in an apartment near appellant’s duty station at Coleman Barracks. She testified that she had first seen Gordon on November 29 or 30, 1980, when he had alighted from a taxi at her apartment house and had come to her door to ask where Monika Tirado-Lopez lived. After Crusius attempted to explain to appellant, who did not fully understand German, that Monika lived across the street and down the block a short distance, she went outside and gave directions to the taxi driver. During this first encounter with appellant, Mrs.1 Crusius testified that she had the opportunity to observe appellant “closely” for about five or six minutes.

On December 3, sometime between 6:00 and 7:30 p.m., she saw Gordon again; and she had a second opportunity for a “good look” at his face. On this occasion, someone had rung Mrs. Crusius’ doorbell, and when she opened the door, appellant was there. He asked her whether she had a telephone; but when she responded in the negative, he placed his foot between the door and the door frame. However, appellant abruptly left when the light in the hallway was turned on and footsteps were heard on the stairs. Mrs. Crusius then closed her door; dressed her little son and put him to bed; and began watching television.

Approximately ten to thirty minutes later, someone rang the doorbell to her apartment from outside the front door of the building. She pressed the buzzer and opened the front door to her apartment because she thought it was her sister, who usually visited her every night. When Crusius recognized that, instead, Gordon was the visitor, she began to scream angrily and attempted unsuccessfully to close her door. He forced his way into her apartment, hit her in the temple, grabbed her around the throat, and pushed her into the bedroom, where her son was sleeping. At that point, Mrs. Crusius lost consciousness. When she came to, she found herself lying on the bed with her lower garments off, and appellant was taking off her “pullover.” Appellant “stroked” her breasts, kissed her, and then had intercourse with her. She did not scream or struggle because she feared for the safety of her son — who was sitting at the end of the bed, watching and crying.

According to Mrs. Crusius, after intercourse Gordon picked up her son and walked through the kitchen. She testified that light in the kitchen enabled her to determine that her assailant was wearing a military uniform and to see the name “Gordon” on his field jacket. She then led him to the living room, where she turned on the lights. However, Gordon turned them right off, sat down in an armchair, and held her child on his lap. He asked her to be his girlfriend; but she told him to leave and come back tomorrow because her husband was coming home soon. Appellant then left. Mrs. Crusius estimated at trial that appellant remained in her apartment for ten minutes, at most, after raping her.

Upon Gordon’s departure, Mrs. Crusius went across the hall to a neighbor’s apartment. She told him that she had just been assaulted and asked to use his telephone to call the police. Responding, the German police arrived at her apartment about 8:25 p.m. After giving them details of the rape, Mrs. Crusius was taken to the hospital and examined by the chief gynecologist, who testified at trial that he had found enough mobile spermatozoa to indicate that intercourse had occurred within the preceding five hours.

[465]*465Special Agent Martin Nowicki, an investigator with the Mannheim Criminal Investigation Division (CID) office, learned that Mrs. Crusius had been raped and that she had stated that the assailant was a black man named either “Gordon or Gorgon.” Through the 187th Personnel Service Center at Funari Barracks, he was able to ascertain the names of everyone stationed in the Mannheim area whose name was Gordon or Gorgon. While there were no “Gorgons,” he learned that there were eleven “Gordons,” six of whom were black. Of these six blacks, only two were stationed at Coleman Barracks; and only one of them — appellant—fitted the description of the rapist given by Mrs. Crusius.

On December 5, Nowicki conducted a lineup, for which the unit had furnished “five individuals ... similar in physical appearance to” appellant. There were four showings, during which everyone in the lineup was similarly dressed. Appellant was in the first, third, and fourth showings. Another black soldier named Gordon who was stationed at Coleman Barracks also was in the fourth showing. According to Nowicki, Mrs. Crusius correctly identified appellant each time that he was in the lineup; and she did not identify anybody as the assailant in the second array. Furthermore, he testified that when Mrs. Crusius identified appellant, she did it within seconds and indicated that she was “100%” sure.

All four showings had been photographed by a German police photographer, and trial counsel offered the photographs in evidence. Defense counsel objected that he had received insufficient notice of the Government’s intent to introduce the photographs in evidence. Moreover, he contended that two of the photographs were “prejudicial to the accused,” because Gordon had been “looking in a different direction”; and he objected to a third photograph which showed another person in the lineup looking at appellant. Finally, defense counsel argued:

[W]e believe that Rule 321 [of the Military Rules of Evidence] contemplates that only evidence showing [the] fact of prior identification is contemplated under Rule 321, and not the conditions of identification. In other words, what I’m trying to say, sir, is that it’s really not relevant in the sense that it’s — in the sense that Rule 321 contemplates that he can come in and say, “Yes, I previously identified him.” I think that to allow the photos to come in allows it to become the one sole issue, you know, was this a good photograph of the line up. I think that it adds confusion that isn’t highly relevant evidence. Now I also believe that it’s hearsay, Your Honor, and that it’s offered to show a prior identification out of court, the statement of the victim. All right. And it goes to the propriety of suggestability of the line up, which is not an issue, and we have never raised [that] as an issue. In our opening argument we said that there was no issue that she had picked him out.

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Related

United States v. Jones
24 M.J. 827 (U.S. Army Court of Military Review, 1987)

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Bluebook (online)
18 M.J. 463, 1984 CMA LEXIS 17465, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gordon-cma-1984.