United States v. Hayes

15 M.J. 650, 1983 CMR LEXIS 1013
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedJanuary 18, 1983
DocketNMCM 82 0981
StatusPublished
Cited by1 cases

This text of 15 M.J. 650 (United States v. Hayes) 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. Hayes, 15 M.J. 650, 1983 CMR LEXIS 1013 (usnmcmilrev 1983).

Opinion

BARR, Judge:

Appellant was convicted, contrary to his pleas, by a special court-martial composed of members of a one-day unauthorized absence and the larceny of assorted automobile parts valued at $654.00, in violation of Articles 86 and 121, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 886 and 921, respectively. His sentence to confinement for three months, forfeiture of $300.00 pay per month for a period of three months, reduction to pay grade E-l and a bad-conduct discharge was approved, without modification, on review below.

[651]*651Appellant now assigns four errors for our consideration. Because of our disposition of the first assignment, we need not reach the merits of the remaining issues.

I

THE APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO CONFRONT AND FULLY CROSS-EXAMINE A KEY GOVERNMENT WITNESS.

We set forth the facts essential to an understanding of the issue thus framed and to be resolved. The date of the alleged larceny was 27 September 1980. But for the evidence offered through the testimony of one witness, Mrs. H., the Government’s case on the larceny offense rested wholly on circumstantial evidence, and the permissible inferences derived therefrom, that on 20 October appellant’s car, upon its seizure, was found to be equipped with one of the items alleged to have been stolen on 27 September, and that appellant thereafter took certain actions to dispose of, and disassociate himself from, the remaining parts. Certain statements of appellant, purportedly made subsequent to 20 October, and subject to variant interpretations as to their tendency to inculpate or exculpate appellant of the larceny, completed the circumstantial evidence offered.

The only direct nexus between appellant and the stolen goods contemporaneous to the date of the theft was provided by the testimony of Mrs. H. She testified on direct examination that at appellant’s home on the evening of, but prior to the hour of, the larceny, her husband (PVT H.), CPL D., and appellant discussed, in her presence, plans to steal automobile parts on the base at Officer Candidates School (OCS). Having departed in company, the three were next seen by Mrs. H. four hours later (approximately midnight) “unloading” car parts into a closet in appellant’s house. She identified many of these parts as similar to those reported as stolen that evening from the hobby shop parking area of OCS. Mrs. H. also testified that appellant at this time admitted that the parts in fact had been stolen from the aforementioned location. Mrs. H. next saw the parts a day or so later when, according to her testimony, she and her husband joined appellant and his wife in the latter’s home where they viewed, and discussed the use and value of, the stolen parts. The next critical aspect of her testimony concerned a chance meeting at the automobile hobby shop in early October with the victim of the 27 September larceny. Mrs. H. reported appellant as stating, as he departed the shop, “That’s the guy who owns the Duster we stole the parts from.” On a later date, around 10 October, appellant, according to Mrs. H., delivered the stolen parts to her home with the explanation that the Naval Investigation Service (NIS) was looking for them and he had to get them out of his apartment. On 20 October, NIS seized from appellant’s car a set of “wheelie bars” identified as being among the items stolen on 27 September. Because Mrs. H.’s husband was in possession of the car at that moment, their apartment was searched by NIS, with negative results. According to Mrs. H., later that evening appellant and her husband conceived a plan to create a “fake alibi” which would show they legally came into possession of the stolen items.

That the evidence provided by Mrs. H. was extremely damaging to appellant’s case, and especially to his defense of innocent possession, is self-evident. The circumstantial evidence previously alluded to, when bolstered by the testimony of Mrs. H., presented a very strong case for conviction of appellant only if Mrs. H.’s testimony was believed. The material parts of her testimony were contradicted by virtually every other witness at the trial, leaving her rendition of the events wholly uncorroborated.

To counter her testimony further, the defense attempted on cross-examination to attack her credibility via two distinct, though factually interrelated, avenues. First, because she admitted involvement in an adulterous relationship, an offense exhibiting moral turpitude, her credibility thereby was diminished. The second prong of attack was intended to disclose the moti[652]*652vation of Mrs. H. to falsely accuse, and testify untruthfully against, appellant because of the bias which she harbored against him. The evidence of bias would have revealed1 that Mrs. H.’s adulterous relationship was unknown to her husband until the latter part of October when disclosed to him by appellant, that as a result PVT H. physically abused her, that Mrs. H. was aware that appellant was in possession of certain pictures which showed her in a compromising position with her lover, that Mrs. H. harbored ill-will toward appellant because of his revelations to her husband and the consequences they produced, and, that, in the immediate aftermath of these events, Mrs. H. provided a statement to NIS implicating appellant in the larceny of 27 September.

The defense had elicited from Mrs. H. the threshold fact that she was committing adultery. When asked by the defense counsel whether her husband knew this fact, she replied that she did not know and immediately broke into tears. Further questioning was interrupted by the military judge, who called for an Article 39(a), UCMJ, 10 U.S.C. § 839(a), session. In response to the judge’s inquiry concerning what the defense intended to establish by continued questioning on this issue, the defense counsel stated his expectation that the evidence would demonstrate Mrs. H.’s unworthiness of belief because of her willful commission of a crime of moral turpitude (adultery) and her motive to misrepresent the truth arising from appellant’s disclosure of her extramarital activities. Notwithstanding this exposition of intention, the military judge made clear that he would permit no further cross-examination of Mrs. H. on the issue of adultery as an offense of moral turpitude in relation to the question of witness credibility. He furthermore precluded trial defense counsel from tendering to the court an offer of proof of the expected testimony which would have been relevant to the bias prong of the cross-examination, and thereafter denied a defense motion to strike Mrs. H. ’s direct testimony. The opportunity to elicit from Mrs. H. evidence of her bias and motive thus having been curtailed by the rulings of the military judge, the remainder of the cross-examination concerned the factual assertions of her testimony.

Appellant now contends that his right of confrontation and cross-examination under the Sixth Amendment to the U.S. Constitution was denied by the decision of the military judge. While appellant’s position is undoubtedly fortified by the referenced constitutional clause, we need not reach the constitutional issue.

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15 M.J. 650, 1983 CMR LEXIS 1013, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hayes-usnmcmilrev-1983.