United States v. Gray

40 M.J. 77, 1994 CMA LEXIS 53, 1994 WL 445968
CourtUnited States Court of Military Appeals
DecidedAugust 17, 1994
DocketNo. 93-0148; CMR No. 9003345
StatusPublished
Cited by23 cases

This text of 40 M.J. 77 (United States v. Gray) 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. Gray, 40 M.J. 77, 1994 CMA LEXIS 53, 1994 WL 445968 (cma 1994).

Opinion

Opinion of the Court

GIERKE, Judge:

A general court-martial composed of officer and enlisted members convicted appellant, contrary to his pleas, of committing sodomy and adultery with the wife of a subordinate, Sergeant M, and committing indecent acts with Sergeant M’s 9-year-old daughter, K, in violation of Articles 125 and 134, Uniform Code of Military Justice, 10 USC §§ 925 and 934, respectively. Appellant’s approved sentence provides for a dishonorable discharge as well as confinement and partial forfeitures for 5 years. Appellant was found not guilty of committing indecent acts with the 13-year-old daughter of a neighbor.

The Court of Military Review affirmed the findings and sentence with minor modifications in an unpublished opinion. We granted review of the following issue:

WHETHER THE MILITARY JUDGE ERRED BY REFUSING TO ALLOW APPELLANT TO INQUIRE INTO THE INVESTIGATION OF SERGEANT [M] AND HIS FAMILY CONCERNING ALLEGATIONS OF SPOUSE AND CHILD ABUSE, REFUSING TO PERMIT APPELLANT TO EXPLAIN WHY HE WAS VISITING SERGEANT [M]’s HOME, AND IN REFUSING TO ALLOW INQUIRY INTO SERGEANT [M]’s OBSERVATION OF [K] ENGAGING IN ORAL SEX WITH ANOTHER FEMALE, THEREBY DEPRIVING APPELLANT OF HIS FUNDAMENTAL RIGHT OF CONFRONTATION AND CROSS-EXAMINATION.

Factual Background

Sergeant M’s wife testified that, during October and November of 1989, appellant came to her house while her husband was on duty, and they engaged in oral sex “about three” times and sexual intercourse once. Mrs. M testified that she had sex with appellant because she wanted her husband to be promoted and appellant said he could accomplish his promotion. She also testified that she enjoyed her sexual encounters with appellant.

A neighbor testified that he saw appellant’s car in Sergeant M’s driveway “on numerous occasions” while Sergeant M was on duty. He admitted on cross-examination that he was “good friends” with Sergeant M and his family but “not very good friends” with appellant.

K testified that appellant licked her vagina on one occasion near Christmas of 1989, while she and her younger sister were visiting appellant’s home. She was 9-years old at the time. On cross-examination she admitted falsely accusing appellant of rape in August 1989. She testified that she and a friend made the accusation as a joke.

Sergeant M testified that appellant became his squad leader in March 1989. He testified that in January of 1990 he told appellant that K had contracted gonorrhea. He said that appellant looked shocked and suggested that K may have contracted the disease by playing with appellant’s wife’s underwear. Shortly afterward he retracted that suggestion.

On cross-examination, defense counsel asked Sergeant M if it was true that appellant began coming to his home because Mrs. M called appellant and accused Sergeant M [79]*79of abusing her and hurting her. Sergeant M answered in the affirmative. The military judge sustained a prosecution objection to the question and answer.

In December, 1989, the Texas Department of Human Services (DHS) initiated an investigation upon receiving a report that K had contracted gonorrhea. Sergeant M did not accuse appellant of misconduct with K until February 28, 1990.

Pursuant to a prosecution motion in limine, the military judge prohibited defense counsel from introducing evidence that on two occasions the Texas Department of Human Services received and investigated complaints that Sergeant M physically abused his wife and that both of them abused their children. The defense offered this evidence to show that K may have been coerced to accuse appellant, and further to show bias on the part of Sergeant and Mrs. M, who may have accused appellant in order to shift the attention of DHS from their own troubled family to appellant. Appellant asserts that Sergeant M was the initial target of the DHS investigation of the cause of K’s gonorrhea. Final Brief at 12.

Sergeant and Mrs. M tested negative for gonorrhea in January 1990. Appellant had tested positive for gonorrhea in August 1989. Appellant’s wife testified that she and appellant had a normal sexual relationship but that she had never contracted gonorrhea.

Sergeant and Mrs. M both testified that, in late November or early December 1989, appellant asked them for penicillin to treat a cold. Sergeant M testified that his wife admitted her sexual relationship with appellant after Sergeant M was informed of it by his first sergeant. He testified that, after K admitted her false rape accusation against appellant in August 1989, he “made her apologize” to appellant for falsely accusing him.

Pursuant to the prosecution’s motion in limine, the military judge prohibited the defense from eliciting testimony from Sergeant M that he had observed K and a 12-year-old neighbor girl naked together on a bed, apparently engaging in oral sex. Sergeant M also would have testified that K had twice “walked in on us accidentally” while Sergeant and Mrs. M were “having sex.” The defense offered this evidence to show that K was sexually knowledgeable beyond her years and was sexually active, thereby making appellant’s claim at trial that K fondled and kissed him more believable.

Special Agent Cugler, an agent of the Criminal Investigation Command at Fort Hood, testified that he interviewed appellant on March 23, 1990, on suspicion of “sodomy, indecent acts, and indecent assault on a child.” Appellant waived his rights and provided a written statement. In his written statement appellant said that, sometime prior to December 24, 1989, he was sleeping on the sofa and was awakened by someone kissing him and fondling his penis. He awakened and saw that it was K, at which time he pushed her away and said, “What the f— do you think you are doing?” He denied taking sexual liberties with K.

According to appellant’s written statement, SA Cugler asked appellant, “Do you know how [K] contacted [sic] gonorrhea?” Appellant responded simply, “No, I don’t.” Appellant was then asked if he had ever contracted gonorrhea, and appellant responded that he had in August or September of 1989. Appellant stated that he did not have gonorrhea in December 1989 and had not taken any medication for gonorrhea since October 1989.

Although appellant’s written statement does not mention Mrs. M, SA Cugler testified that when he asked appellant how K might have contracted gonorrhea, appellant said that she might have contracted it by “kissing him and playing with his penis.” SA Cugler said he told him that he did not think that gonorrhea could be transmitted by kissing and fondling. Appellant then said, ‘Well, she could have possibly gotten it from her mother.” When SA Cugler asked him to explain his comment, appellant said that he was having some kind of sexual affair with Mrs. M. SA Cugler testified that at that point he stopped the interview. SA Cugler was not asked and did not explain why appellant’s mention of a sexual affair with Mrs. M was omitted from appellant’s written statement.

[80]*80Appellant testified in his own defense. He admitted visiting Mrs. M on two occasions when Sergeant M was not there but denied having sexual intercourse or committing sodomy with Mrs. M. The military judge prohibited appellant from testifying that Mrs. M had invited him to her home for help in dealing with her abusive husband. Appellant testified that he was not sexually attracted to Mrs. M but that she made “sexual advances” toward him.

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Cite This Page — Counsel Stack

Bluebook (online)
40 M.J. 77, 1994 CMA LEXIS 53, 1994 WL 445968, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gray-cma-1994.