United States v. Hill

46 M.J. 567, 1997 CCA LEXIS 71, 1997 WL 101097

• Court: United States Air Force Court of Criminal Appeals
• Decided: February 20, 1997
• Docket: ACM 31798
• Status: Published

Opinions

OPINION OF THE COURT

STARR, Judge:

On the night of January 28, 1995, Staff Sergeant (SSgt) Sheila Spellman called the security police from her base quarters, claiming the new light on her back patio had just gone out. A security policeman responded, and in the darkness found the appellant at Spellman’s back patio door. The appellant and Spellman were not strangers; they knew each other well, and this was the culmination of their turbulent five-year romance. The event also resulted in the appellant’s conviction by general court-martial. After a fully litigated trial, officer members acquitted the appellant of multiple alleged assaults and threats against Spellman, but they convicted him of willful disobedience of an order not to contact Spellman and of attempted burglary of Spellman’s house. The convening authority approved the adjudged sentence of a bad-conduct discharge, confinement for six months, and reduction to the grade of E-l.

The appellant presents five assignments of eiTor. These are that: (1) the no contact order was unlawful; (2) the evidence is factually insufficient to support his attempted burglary conviction; (3) the base staff judge advocate (SJA) unlawfully prohibited him from visiting the alleged crime scene with his attorneys; (4) the military judge erred in his reasonable doubt instruction; and (5) the convening authority’s SJA erred in the Addendum to the Staff Judge Advocate’s Recommendation (SJAR). Only the first three warrant extended discussion. The appellant also presents a petition for a new trial based on newly discovered evidence. We reject all of the appellant’s contentions, deny the petition for a new trial, and affirm the approved findings and sentence.

THE NO CONTACT ORDER

The five year relationship between the appellant and Spellman had been marked by tension for at least three years. The appellant’s fathering two children by his wife during the course of the relationship displeased Spellman. The appellant also had grievances, which centered on his perceptions of Spellman’s past. The couple handled their disagreements privately until October 1994, when a security police gate guard saw them arguing. Security police took the appellant and Spellman to the law enforcement desk, where they provided differing accounts of what had happened. According to Spellman, the appellant had come to her home, had accused her of “seeing someone else,” and had pushed her and twisted her arm. Spell-man said that she had taken her three-year-old son and had driven off base, and that the appellant had followed her and tried to run her off the road. She said she drove to the base gate for help. The appellant denied Spellman’s accusations. According to him, they had argued and he had merely tried to stop her and calm her.

Other than Spellman’s comment about being accused of “seeing someone else,” neither of them disclosed the nature of their relationship. Neither of them disclosed that the appellant was the father of Spellman’s three-year-old son. Relying on the information contained in the security police i-eport on the incident, the appellant’s squadron commander issued the appellant a letter of reprimand for assaulting Spellman. Meanwhile, the couple patched things up and continued their arrangement for another three months, when the security police received another complaint from Spellman about the appellant’s treatment of her.

This time, the couple argued on the evening of January 22, 1995, and again on the morning of January 23. Later that morning, Spellman told her first sergeant the appellant had struck her, and the first sergeant called the security police. Spellman provided security police investigators a sworn written statement in which she accused the appellant of assaulting and threatening her for about two years, most recently earlier that morning.

Later that day, SSgt Lindley, a security police investigator, contacted the appellant’s supervisor, Second Lieutenant (2Lt) Raines, and asked that the appellant be brought to the security police office for an interview. From the x-ecord it is unclear why he thought so, but when he interviewed the appellant, SSgt Lindley believed the appellant’s first sergeant had ordered him to stay away from Spellman after the October incident described above. He therefore told the appellant he was suspected of both assault and disobedience of a lawful ox’der. The appellant again denied ever assaulting or threatening Spellman; but this time he admitted that he and Spellman had engaged in a five year sexual relationship, omitting that he was the father of her son. According to the appellant, he wanted out of it, but Spellman would not leave him alone. The appellant said he just wanted to finish his enlistment without any more trouble.

At the end of the interview, with 2Lt Raines present, SSgt Lindley ox-ally ordered the appellant not to contact Spellman at hex-home or duty section or be within 100 feet of her. 2Lt Raines then told SSgt Lindley that he (Raines) would issue the oi’der to the appellant to stay away from Spellman. The next day, SSgt Lindley’s participation in this aspect of the investigation ended when the Air Force Office of Special Investigations took over the case.

The appellant was found in the dark at Spellman’s back door five nights later. He was charged with willful disobedience of an order not to contact Spellman, but not one issued by his first sergeant or 2Lt Raines. Because SSgt Lindley was mistaken in his belief that the appellant’s first sergeant had issued such an order, and 2Lt Raines did not follow through with his announced intention, the government alleged willful disobedience of SSgt Lindley’s no contact ordex-, as a violation of Article 91, Uniform Code of Military Justice (UCMJ) (willful disobedience of a noncommissioned officer’s (NCO’s) lawful order).

The defense moved to dismiss this chax-ge at the initial Article 39(a), UCMJ, session, arguing the order was unlawful. Two things about this motion pertinent to our resolution of the issue should be noted at the outset. First, the defense limited its attack on the order to SSgt Lindley’s status vis-a-vis the appellant, asserting that the oi’der was un-lawfixl because he was not in the appellant’s chain of command. The defense counsel, both in his brief and in his argument, made it crystal clear he was not challenging the terms of the oi’der; he was only challenging who gave it. The defense counsel told the military judge: “If the chain of command had issued that ordex-, I wouldn’t be standing up here. It would be a legal order.” Second, there was no factual dispute regarding the issue. Both sides saw the matter as purely a legal issue. The military judge heard SSgt Lindley’s testimony concerning his interview with the appellant and denied the motion.

In his testimony on the motion to dismiss, SSgt Lindley provided no specific reason for giving the order. Although the prosecution suggested it was because the security police investigation was ongoing, the only other witness — Spellman—had already been interviewed, and the military judge made no finding as to SSgt Lindley’s purpose. We find the order was not intended to preserve the integrity of the investigation. SSgt Lindley’s testimony persuades us it was to keep peace in the community until the appellant’s scheduled discharge several months down the road. Article 66(c), UCMJ; United States v. Givens, 30 M.J. 294, 299 (C.M.A.1990). Given the growing notoriety of the tempestuous relationship, SSgt Lindley’s motivation was praiseworthy; and ample support exists for the general validity of such orders when issued by the command. United States v. Nieves, 44 M.J. 96 (1996); United States v. Flynn, 34 M.J. 1183 (A.F.C.M.R.1992); United States v. Hawkins, 30 M.J. 682 (A.F.C.M.R.1990); United States v. Wine, 28 M.J. 688 (A.F.C.M.R.1989).

But does the command’s failure to act to curtail the appellant’s mischief invalidate the order of a perceptive and conscientious NCO outside the appellant’s chain of command? We think not. SSgt Lindley was not acting as some interloping rogue here. He occupied a position of responsibility for law enforcement, knew the history between the appellant and Spellman (as much as they had disclosed so far), and realized the threat to the peace of the military community posed by their continued association. The proof of SSgt Lindley’s prescience is in the pudding. Only five nights after assuring SSgt Lindley he wanted nothing more to do with Spellman, the appellant was apprehended prowling in her back yard with a knife and an air pistol, bringing the security police into the relationship yet a third time in only three months.

There is nothing in the history, the language, or judicial interpretations of Article 91 that condition the validity of an NCO’s order on his or her command relationship to the order’s recipient. Willful disobedience of an NCO’s lawful order as a specific military offense originated with the March 1, 1917, Articles of War (AW) and became AW 65. Manual for Courts-Martial, United States (MCM) 1917, Appendix I, page 308. The offense was intended to have: “the same general objects with respect to noncommis-sioned officers as the sixty-third and sixty-fourth articles [had] with respect to commissioned officers, namely, to insure obedience to their lawful orders____” MCM (1917), paragraph 416. This same explanatory language appears in the current Manual. MCM, Part IV, paragraph 15c(l) (1995 Edition). The essential elements of the offense are that the accused was an enlisted person, warrant officer, or petty officer; that the accused received a lawful order from a non-commissioned, warrant, or petty officer; that the accused knew that the person giving the order was a noncommissioned, warrant, or petty officer; that the accused had a duty to obey the order; and that the accused willfully disobeyed the order. There is simply no requirement in Article 91 that the NCO giving the order bear any particular relationship to the order’s recipient, and no such relationship has ever been judicially grafted onto this offense. See United States v. McLaughlin, 14 M.J. 908 (N.M.C.M.R.1982), pet. denied, 15 M.J. 405 (C.M.A.1983); United States v. Pinkston, 49 C.M.R. 359, 1974 WL 14079 (N.C.M.R.1974).

Before this Court, the appellant goes beyond his trial theory concerning the order’s lawfulness, now claiming that the order, even had it been given by his chain of command, was unlawful because it was unduly restrictive of his personal rights. But because the appellant’s counsel specifically eschewed such a theory at trial, the record was not developed with this issue in mind.

As a procedural matter, orders are inferred to be lawful, (MCM) Part IV, paragraph 14c(2)(a)(i) (1995 Edition), and the defense bears the burden of going forward with evidence to the contrary. United States v. Stewart, 33 M.J. 519, 520 (A.F.C.M.R.1991). Here the defense chose not to do so regarding the terms of the order, specifically limiting the issue to the source of the order. Had the defense asserted at tidal that the order was unlawful no matter who gave it, a record would have been made that would permit intelligent appellate review of that issue. It is likely the parties would have addressed the reason for the order, given the rule that orders abridging personal rights and private affairs must have a valid military purpose. See MCM paragraph 14c(2)(a)(iii) (1995 Edition). As we have said before, midstream horse changing upon reaching the appellate level invariably results in a less than optimal record on which to base appellate litigation. The deliberate decision by the defense at trial not to tackle the issue of the order’s terms independent of its source precludes consideration of that issue on appeal. See United States v. Folk, 37 M.J. 851, (A.F.C.M.R.), pet. denied, 39 M.J. 75 (C.M.A. 1993); R.C.M. 905(e).

The dissent maintains the conviction must be set aside because the military judge erroneously took the element of lawfulness away from the members. Not even the appellant raises this as an issue, and the reason is clear. Given the defense theory of the case at trial, the only issue for the members was whether the appellant understood the order’s terms, and the appellant sought and received the pertinent jury instruction on that issue. There simply was no factual dispute for the members regarding the order’s lawfulness, because the defense picked the ground for battle elsewhere — the order’s source. That was clearly not an issue for the members. Once the judge determined the source of the order passed legal muster, there was nothing for the members to decide concerning lawfulness, and the judge correctly instructed them based on the defense theory of the case. Unger v. Ziemniak, 27 M.J. 349, 358-59 (C.M.A.1989). The judge in no way forced this upon the defense. In an Article 39(a) session held to discuss proposed findings instructions, the judge notified the parties that he intended to instruct that the order, if given, was lawful, and he asked if the defense concurred. The answer: “Absolutely.” Again at the end of the findings instructions the military asked if the defense had any objection to the instructions as given. The defense counsel again said he had no objection. The defense clearly had no desire to litigate the order’s lawfulness as a factual issue at trial, and the judge did not err in his instructions.

SUFFICIENCY OF THE ATTEMPTED BURGLARY CONVICTION

The appellant was charged with burglary of Spellman’s house by breaking and entering with the intent to commit assault. The members convicted him of the lesser included offense of attempted burglary. The appellant claims the evidence is factually insufficient to support his conviction. We disagree.

Spellman testified she did not know the appellant was going to pay her a visit on the night of January 28. When the appellant was discovered at her patio door, inside his windbreaker he had a pellet gun, modeled after a .45 semi-automatic pistol, and a hunting knife, which he dropped while being searched. The appellant had purchased both items less than four hours earlier, and their packaging was still in his car parked around the corner. According to the responding security policeman, the first thing the appellant asked when confronted was whether he could “get his tools.” The security policeman then found a screen from Spellman’s bathroom window on the ground several feet away, on which were screwdrivers and a flashlight belonging to the appellant.

According to the appellant, Spellman, vengeful over his decision not to leave his wife, “set him up.” The appellant testified he bought the pellet gun (but forgot to buy pellets) and the knife for protection against some large dogs that lived near property he owned and was clearing for house construction. He said he had been to this property before going to Spellman’s, and forgot he was still carrying the pellet gun and the knife when he arrived. According to the appellant, Spellman had called him the day before and invited him over. He had declined, saying that he had been ordered to stay away. She insisted, and he told her he already had plans but would come the next night; which he did.

The appellant testified that because of the order, he parked around the corner from Spellman’s house. He said he then walked to her front door and rang the bell. According to the appellant, Spellman looked out a small window and motioned him to the back of the house. Then, according to the appellant, he noticed something in the yard and walked toward it. About that time, the patio light went out, so he stopped. He saw a person coming around the side of the house, and he realized it was a security policeman. He said he heard Spellman yell, “Oh, my God!” and that is when the security policeman saw him. The appellant denied asking the security policeman if he could pick up his tools. According to the appellant, the bathroom screen had come off the previous month and had not been reattached. The flashlight and screwdrivers belonged to him, but he had previously left them with Spellman. The defense counsel implied in closing argument that Spellman had placed them on the screen before he had arrived, and she had unscrewed the light bulb while he was in the back yard.

Under our statutory mandate, we may not approve a finding of guilty unless we find it correct in law and fact. Article 66(c), UCMJ. This means we must be convinced beyond a reasonable doubt of guilt in order to affirm a conviction, making allowances for not having personally observed the witnesses. United, States v. Turner, 25 M.J. 324 (C.M.A.1987). In the appellant’s case, the members were presented precisely the same ffame-up theory that we are now asked to accept. On the attempted burglary issue, this was a ease of Spellman’s credibility versus the appellant’s. After having observed the witnesses’ demeanor as they gave their conflicting accounts, the members believed Spellman and rejected the appellant’s testimony. The emphasized portion of Spellman’s cross-examination quoted by the dissent was not missed by the members. Following her cross-examination, a court member asked that she clarify her testimony that she “probably” expected the appellant’s visit. Spellman explained that she had based her answer on the appellant’s past practices, not on any phone calls. The members were convinced beyond a reasonable doubt the appellant tried to break into Spellman’s house, uninvited, with the intent to at least menace her with the .45 lookalike or the knife. After carefully examining the evidence of record, we are also convinced of this. We resolve this issue against the appellant.

ALLEGED UNLAWFUL COMMAND INTERFERENCE BY THE BASE SJA

In an affidavit submitted over 10 months after the appellant’s trial, Major Wells, the appellant’s trial defense counsel, wrote the following:

Three incidents occurred during Sgt Hill’s trial which I believe had the potential of detrimentally affecting the accused’s right to participate in his own defense and assist his counsel. First, Sgt Hill was prevented from accompanying his attorneys to the alleged crime scene, on orders from the Staff Judge Advocate, Lt Col Holland. Prior to the Article 32 hearing in this case, I and Mr. Ben Hilbun, Sgt Hill’s civilian attorney at the time, desired to view the rear of SSgt Spellman’s on-base home, which is where Sgt Hill was apprehended, with Sgt Hill present to answer any questions we might have. To this point, we had only seen photographs of the house. After coordinating the visit through the legal office, Mr. Hilbun and I received permission from SSgt Spellman to view the outside of her home while she was at work. Sgt Hill, who was still in pretrial confinement status, was being escorted everywhere by an armed security policeman. Upon being told by Mr. Hilbun and myself that we wanted Sgt Hill, and his armed escort, to accompany us to the rear of SSgt Spellman’s house, Lt Col Holland stated Sgt Hill would be allowed to ride to SSgt Spellman’s home in a security police cruiser, but that he would not be permitted to get out of the car; Sgt Hill would be required to remain in the police cruiser at the front of the alleged victim’s house while his attorneys surveyed the scene at the rear of the house. Considering this case would definitely involve a credibility battle between Sgt Hill and SSgt Spell-man, and that the photographs we had already viewed seemed to raise several factual questions concerning the commission of the alleged crime (i.e., could Sgt Hill have actually fit through the bathroom window), Mr. Hilbun and I felt it important to have our client there with us to answer questions and describe events that transpired the night he was appended. We expressed to Lt Col Holland our reasons for wanting Sgt Hill at the rear of the house with us, and our disagreement with his edict, however Lt Col Holland refused to reconsider his decision. Mr. Hilbun and I subsequently drove to SSgt Spellman’s house, where we met Sgt Hill and his security police escort. Mr. Hilbun and I surveyed the exterior of the house, including the rear, and made numerous trips to the parked police cruiser to ask Sgt Hill various questions. At no time during this visit was Sgt Hill permitted to leave the ear or accompany his attorneys around the alleged crime scene.

Citing United States v. Stombaugh, 40 M.J. 208 (C.M.A.1994), the appellant claims unlawful command influence. He says that his presence at the scene was “absolutely critical” to the development of the defense case, that the SJA’s action prevented the defense from conclusively establishing the appellant could not fit through the bathroom window.

If the affidavit is accurate as to the SJA’s order, we strongly recommend more sensitivity to legitimate defense preparation needs in the future. But in fairness to the SJA, there may be more to it than revealed in this single affidavit, and the perceived impact of the order on trial preparation may have heightened with memory. This possibility is strengthened by the defense counsel’s failure to seek remedial action in the face of the alleged order. Mr. Hilbun and Major Wells sat through the Article 32, UCMJ, investigation without raising the issue. More importantly, Major Wells and Mr. Myers, Mr. Hil-bun’s replacement civilian defense counsel, sat throughout the entire trial without so much as a word about it, although several other pretrial issues were vigorously contested. We have little doubt the military judge could have — and would have — remedied the perceived preparation problem, had he been told about it. Finally, Major Wells did not raise the issue in post-trial submissions to the convening authority, who could have set aside the findings of guilt for any reason. Article 60(c)(3)(A), UCMJ. Instead, the issue reared its head for the first time almost a year after the trial.

- By casting the issue as one of command influence, the appellant perhaps seeks to avoid the forfeiture rule. See United States v. Hamilton, 41 M.J. 32 (C.M.A.1994). But we reject this analysis. Call it what you may, the crux of the appellant’s complaint is that he was hamstrung in his trial preparation because he was forbidden to leave the security police car to visit the crime scene with his lawyers. It was, under R.C.M. 906(a), a perceived wrong capable of being remedied by a motion to the military judge for appropriate relief. The Rule states: “A motion for appropriate relief is a request for a ruling to cure a defect which deprives a party of a right or hinders a party from preparing for trial or presenting its case.” In the absence of plain error, the appellant has, by not raising this issue before the court-martial adjourned, forfeited the issue at the appellate level. R.C.M. 905(e); see United States v. Webber, 42 M.J. 675 (A.F.Ct. Crim.App.) (defense counsel cannot complain of a wrong and then sit back and do nothing to remedy the situation), pet. denied, 43 M.J. 416 (1995). We do not find plain error. The issue has not, therefore, been preserved for appellate review.

REMAINING ISSUES

We reject the appellant’s contention that the military judge’s reasonable doubt instruction was erroneous. United States v. Meeks, 41 M.J. 150,157-58 n. 2 (C.M.A.1994). We likewise reject the appellant’s claim that substantial flaws exist in the Addendum to the Staff Judge Advocate’s Recommendation. The Addendum did not misinform the convening authority concerning the defense post-trial submissions, and it did not contain new matter. R.C.M. 1106(f)(7). Finally, we deny the appellant’s petition for a new trial based on newly discovered evidence of Spell-man’s credibility. Spellman’s general denial concerning adultery and bearing the appellant’s child, signed by Spellman’s attorney as an answer to the plaintiffs petition in Mrs. Hill’s alienation of affections lawsuit (and filed with the county clerk the day before the appellant’s trial began), does not constitute newly discovered evidence of Spellman’s credibility. R.C.M. 1210.

The findings and the sentence are correct in law and fact and are

AFFIRMED.

Senior Judges HEIMBURG, PEARSON, SCHREIER and Judges GAMBOA, MORGAN, C.H., II, SENANDER and MORGAN, J.H. concur.