United States v. Heimer

34 M.J. 541, 1991 CMR LEXIS 1602, 1991 WL 285782
CourtU S Air Force Court of Military Review
DecidedDecember 20, 1991
DocketACM 28559
StatusPublished
Cited by6 cases

This text of 34 M.J. 541 (United States v. Heimer) is published on Counsel Stack Legal Research, covering U S Air Force 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. Heimer, 34 M.J. 541, 1991 CMR LEXIS 1602, 1991 WL 285782 (usafctmilrev 1991).

Opinion

OPINION OF THE COURT

McLAUTHLIN, Judge:

Contrary to his pleas, Staff Sergeant Thomas E. Heimer was found guilty of two counts of sodomy by his general court-[543]*543martial panel of officers. He was sentenced to a dishonorable discharge, confinement for 8 years, total forfeitures, and reduction to E-l. The appellant raises four issues on appeal. We find none persuasive and affirm.

I

Factual Background

The investigation leading to Heimer’s court-martial began when his adult natural daughter, hereinafter referred to as “S”, provided a statement to the Air Force’s Office of Special Investigations (OSI). S said she had been sexually abused by her father and she believed that Heimer was now sexually abusing his eleven-year-old stepson, hereinafter referred to as “J”. The acts allegedly committed against J became the subject of both of the appellant’s sodomy specifications.

Early in the trial, the military judge granted the appellant’s motion in limine to exclude references by any witness to the uncharged sexual misconduct S had described in her statement. According to the trial counsel, the government did not intend to call S as a witness. The prosecutor indicated the only reference to her statement would be “about how the investigation started,” and this would be limited to the extent that “information from an outside source was presented, not what that information is, not who that person is.”

During J’s direct testimony, government counsel asked the boy if he told anyone about the sexual abuse. J replied, “No. [S] wrote a letter.” He did not say who “S” was, what the letter said, or where the letter went. After cross-examining the boy, the defense counsel moved for a mistrial based on the reference to S’s statement. The defense counsel argued, “The members are going to know that there is evidence out there that they don’t have and they’re going to draw inferences from the lack of that evidence.” The military judge replied:

I’m not going to engage in speculation about what kind of inference they may or may not draw. If they do ask for it, I’ll just tell them to draw no inferences from that information, that’s merely the way the investigation began. To me it’s just not comprehensible that they would draw the inference that the information that is out there has to do with [S]____ The motion is denied.

Later, a civilian social service worker testified about the interview he conducted with J in the presence of an OSI agent. During this testimony, Major [L] from the panel submitted the following question:

What events led to the [social worker’s] interview on 11 Oct? Had there been a previous allegation or complaint which led to the investigation? If so, can we hear who made the complaint which led to ... the investigation?

The military judge excused all members except Major L to clarify the question. Major L explained that he was wondering why an OSI agent was present for the interview “unless there had been probable cause or some sort of child abuse prior to them being there.” When the members returned, the military judge explained that Major L’s question:

... was one of probable cause as to the investigation or the legal route of the investigation. This is a determination which has been made which is not important for your decision. In other words, that is a legal decision that has already been taken care of. What you need to be concerned with is whether or not the allegations have been established as I’ll fully instruct you later on. But the legal propriety of the investigation is beyond your charge. That’s not what you’re here to decide. So if that is troubling you, you should not be troubled by that and no inference should be drawn by you as to whether or not this was a legal investigation or an illegal one. That’s not your concern.

Soon after closing to deliberate on findings, the panel returned to ask, “What started the investigation? Specifically, was the source independent of [J]?” In the subsequent Article 39(a) session, the military judge and counsel discussed how best to deal with this recurring inquiry. The [544]*544military judge explained that his reading of United States v. Castillo, 29 M.J. 145 (C.M.A.1989), led him to conclude that some information could be released to the members in response to their question. According to the judge, “The distinction that I’m willing to make ... in light of the question is the distinction between the abuse [S said happened] to herself and the suspicions that she had about [J].” He ruled, “[T]he abuse to [S] ... is not admissible but the suspicions that she held about the children is.”

The judge then asked counsel how best to present this information. Ultimately, the military judge read the following Stipulation of Expected Testimony to the members:

A letter was received in August of 1989 by the Office of Special Investigations from [S]. [S] is the natural daughter of SSgt Heimer by a previous marriage. Contained therein was information that [S] had visited the Heimer household. She asked the boys, [J] and [T], what they did with SSgt Heimer when Mrs. Heimer was at work. [J] said, “We’re supposed to say we’re playing Yahtzee. Right [T]?” [J] disclosed no evidence of abuse, however, [S] did not believe the response and subsequently contacted the OSI. [S] did not observe any acts of abuse during her visit.

The defense counsel agreed that the stipulation contained what the OSI agent would say if called to testify, but objected to -the information’s relevance and undue prejudice.

The court president indicated the stipulation satisfied the panel’s inquiry, but after another hour of deliberation, the panel returned again to ask if S’s August 1989 letter was admissible “for the purpose of clarifying if J had made any statements, or in any way inferred that child sexual abuse had occurred.” The intent of the question, according to the note submitted by “Maj [L] et al,” was “to establish whether [J] specifically motivated her to write the letter, or if she was motivated by any assessment of this case independent from [J].” (emphasis in the original)

The members were excused and the defense counsel again moved for a mistrial, arguing that the court members were proceeding along the trail of evidence blocked by the successful motion in limine. The military judge denied the defense motion. Then, after discussing options with counsel, he informed the members that the letter was not admissible and their question had been answered to the extent possible.

The panel returned to deliberate, but came back yet again with questions for J. According to another note submitted by Major L, the members wanted to ask J:

Before you talked to [the social worker] at the school you said you had told your mother about having sex with your dad on one occasion. Is that correct? Did you at any time tell anyone else? Did [S] ever ask you questions about it? What was your reply?

Out of the hearing of the members, the military judge asked J the members’ questions. The boy repeated his earlier response that, before talking to the social worker, his mother was the only person he told about having sex with his father. J also said he responded to S’s question by telling her “we played games, Yahtzee, and stuff like that.”

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Bluebook (online)
34 M.J. 541, 1991 CMR LEXIS 1602, 1991 WL 285782, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-heimer-usafctmilrev-1991.