United States v. Jefferson

17 M.J. 728, 1983 CMR LEXIS 684
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedDecember 30, 1983
DocketNMCM 82 3946
StatusPublished
Cited by1 cases

This text of 17 M.J. 728 (United States v. Jefferson) 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. Jefferson, 17 M.J. 728, 1983 CMR LEXIS 684 (usnmcmilrev 1983).

Opinion

SANDERS, Senior Judge:

Contrary to his pleas, appellant was convicted by a general court-martial of attempted rape, sodomy, assault, unlawful entry, indecent assault, and communicating threats, in violation of Articles 80, 125, 128, 130, and 134, respectively, of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 880, 925, 928, 930, and 934. Officer and enlisted members awarded a sentence of confinement at hard labor for seven years, total forfeitures, reduction to pay grade E-l, and a bad-conduct discharge, which was approved on review below by the officer exercising general court-martial jurisdiction.

This case is now before us for review pursuant to Article 66, UCMJ, 10 U.S.C. § 866. Appellant assigns three issues as error, asserting that (1) trial defense counsel provided ineffective representation, (2) the military judge erred in not sua sponte instructing the members on the testimony of an expert witness, and (3) he was denied due process of law by the admission of evidence expressed in terms of mathematical probability. We disagree and affirm.

The offenses resulting in the conviction presently under review occurred during the early morning hours of Saturday, 22 August 1981, at Naval Communications Station, Harold E. Holt, Western Australia. The victim, HM3[C], testified at trial that sometime after she had retired to her quarters at approximately 0100 that morning she was awakened by a man who produced a knife and ordered her not to scream. According to her testimony, she was then “bound and gagged” by the intruder, who attempted to rape her and, after failing to achieve an erection, proceeded to forcibly sodomize her. The victim, who is white, described the assailant as black and muscular, with a beard and moustache, and hair longer than permitted by service regulations. She also detected the odor of alcohol on the assailant’s breath and, in managing to escape, switched on the light, which enabled her to get a “very good look” at his face. As she left the room the assailant pleaded with her not to report the incident.

HM3[C], however, immediately phoned base security. BT2 Francis LeBlanc responded within minutes of the call, finding the victim in a “very agitated and excited state.” She provided him with a description of the assailant consistent with that set forth in her testimony above. They returned to her room so that she could dress. BT2 LeBlanc then escorted the victim to the dispensary where she was examined by LCDR Robert L. Buckley, senior medical [730]*730officer at Harold E. Holt. HM3[C] briefly described the assailant and related the events that had just occurred. From LCDR Buckley’s testimony, it is apparent that her recollection at that time is consonant with her testimony at trial. LCDR Buckley obtained the evidence required by the “rape investigation kit” and noted that the victim’s right wrist was red and that a piece of cloth, which had originally been used as a “gag,” remained tied around her neck.

On Sunday, 23 August 1981, HM3[C] observed appellant walking on base and recognized him as the man who had attacked her the previous morning. She informed a security officer of this observance, also indicating that she now believed the assailant’s last name to be “Jefferson.” In conversation the following evening, HM3[C] offered a description of the assailant to SN Kathy Price, who replied that the individual she described could only be one “Nathaniel Jefferson.” Upon hearing appellant’s name, HM3[C] remembered a brief conversation that she had with him in the chow hall earlier that week. Appellant, who later testified in his own defense, stated that he had no recollection of this conversation. It was elicited during cross-examination of the victim that she and appellant may have had personal contact on two other occasions because she was on duty and signed the log for two antabuse treatments appellant received in July 1981.

In addition to the victim’s unequivocal identification of appellant as the assailant, significant circumstantial evidence was admitted which tends to substantiate the allegations against him. It was established that appellant performed maintenance duties in the BEQ where the victim was berthed and that he had access to the keys to her room. This is important because testimony indicated that the victim’s door locked automatically when closed and that there were no signs of forcible entry into the room. Furthermore, it appears from the victim’s testimony that it would have been impossible to enter the room through the window.

The demographic situation where the instant offenses were committed also points to appellant as the assailant. Harold E. Holt is a small communications station consisting of only about 300 personnel, of which, according to testimony, approximately 30 are black males. Witnesses presented at trial stated that they knew of only a handful of black servicemen stationed there who wore beards and none, with the exception of appellant, with hair in violation of regulations. The base is located in a virtually uninhabited desert area, ruling out the possibility that an Australian citizen may have committed the offenses. These factors, coupled with the victim’s description of the assailant, resulted in a unanimous consensus among the witnesses at trial that the individual described was, indeed, appellant.

The Government concluded its case-in-chief with the expert testimony of CW02 Phillip R. Mills, U.S. Army, a forensic serologist, who stated that he examined pubic and head hairs taken from the victim’s nightgown and a piece of cloth employed in the perpetration of the instant offenses and, after comparing them with samples provided by appellant, opined that they were similar to appellant’s pubic and head hairs. CW02 Mills further testified, over defense objection, that there was a one-in-900 chance that the pubic hairs found on the above items were not appellant’s and a one-in-4500 chance that the head hairs recovered thereon did not belong to appellant. Seminal stains analyzed by CW02 Mills proved inconclusive as to whether they originated from appellant.

Appellant took the stand to deny any involvement in the instant offenses. The record of trial indicates that appellant was prepared to raise an alibi defense. However, the defense was not asserted because the alibi witness’s commanding officer informed investigators that the witness was on duty at the time the instant offenses were committed. The defense also appears to have conducted a trial strategy aimed at convincing the members that HM3[C] fabricated the offenses charged or, in the very least, that her implication of appellant was [731]*731based upon her knowledge that appellant was at Harold E. Holt on a legal hold status awaiting trial in Perth, Western Australia, on another attempted rape charge.1 The assailant in that case, which was under the jurisdiction of the Australian authorities, fit a description similar to that of appellant and, as in the instant case, had been drinking and failed to achieve an erection.

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Bluebook (online)
17 M.J. 728, 1983 CMR LEXIS 684, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jefferson-usnmcmilrev-1983.