United States v. Luke

69 M.J. 309, 2011 CAAF LEXIS 78, 2011 WL 251443
CourtCourt of Appeals for the Armed Forces
DecidedJanuary 25, 2011
Docket05-0157/NA
StatusPublished
Cited by20 cases

This text of 69 M.J. 309 (United States v. Luke) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Luke, 69 M.J. 309, 2011 CAAF LEXIS 78, 2011 WL 251443 (Ark. 2011).

Opinions

Judge ERDMANN

delivered the opinion of the court.

A general court-martial composed of members convicted Hospital Corpsman Second Class Ivor G. Luke, contrary to his pleas, of two specifications of indecent assault upon Seaman Recruit TN in violation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2000).1 Luke was sentenced to confinement for two years and a bad-conduct discharge. The convening authority approved the sentence as adjudged and the United States Navy-Marine Corps Court of Criminal Appeals affirmed the find[311]*311ings and sentence. United States v. Luke, No. NMCCA 200000481, 2004 CCA LEXIS 218, at *16, 2004 WL 2187577, at *6 (N.M.Ct.Crim.App. Sept. 28, 2004).

Upon Luke’s appeal to this court in 2005, we initially granted two evidentiary issues and later granted a supplemental issue as to whether Luke’s conviction could be affirmed in light of newly discovered evidence.2 Following two United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), hearings and two Court of Criminal Appeals decisions, the case is before this court for the third time. We now review the following three issues: whether newly discovered evidence would probably have produced a substantially more favorable result; whether the military judge erred when he held that the Government was not required to disclose Prosecution Exhibit (PE) 17 to the defense in pretrial discovery; and whether Luke’s due process rights have been violated by the lengthy post-trial processing of his appeal. We hold that the newly discovered evidence would probably not have produced a substantially more favorable result; if the military judge erred in holding that the Government was not required to provide the defense with PE 17 in pretrial discovery, it was harmless error; and Luke’s post-trial due process rights were not violated. We therefore affirm the Navy-Marine Corps Court of Criminal Appeals.

DISCUSSION

As the three issues before the court present discrete legal and factual matters, we will set forth the facts and procedural background relevant to each in the discussion of the individual issues.

I. Whether the newly discovered evidence of Mills’ misconduct renders his conviction unreliable

Factual and Procedural Background:

The situation giving rise to Luke’s conviction took place when he was serving as a hospital corpsman aboard the USS Port Royal. Luke was accused of indecent assault upon a shipmate, Seaman Recruit TN, when she sought a pelvic exam from him after Luke diagnosed her boyfriend, Fireman RA, another shipmate, with a sexually transmitted disease. Luke contested the charges and maintained that he did not examine TN nor did he commit an indecent assault upon her. At Luke’s court-martial TN and RA both testified to a series of events which supported the indecent assault specifications and which Luke denied.3 The defense theory of the ease was that TN and RA made up the allegations against Luke in order to avoid the consequences of the command discovering their romantic relationship, which was in violation of ship policy.

In addition to testimony from TN and RA, the Government presented testimony from four Naval Criminal Investigative Service (NCIS) investigators and two experts from the United States Army Criminal Investigation Laboratory (USACIL). The USACIL witnesses testified about serological and DNA testing performed on several items removed from the sleeping quarters of the medical compartment on the USS Port Royal where TN alleged the incident took place, as well as a bra and panties worn by TN during the incident.

[312]*312Phillip Mills, then a forensic chemist at USACIL, conducted the serology4 analysis of the evidence in Luke’s case. Mills examined a bedsheet, a bra, a pair of panties, and a pillowcase for serological evidence. At Luke’s court-martial, Mills testified about stains he found on the sheet and the bra which revealed the presence of amylase and epithelial cells. Mills did not find any stains of consequence on the pillowcase or the panties.

Mills testified that amylase is an enzyme that is found in most body fluids in low concentrations but is found in high concentrations in saliva. Epithelial cells are cells forming epithelium, the lining of body cavities and the covering of the skin and mucous membranes. 2 Schmidt, supra note 4, at E~ 164. Mills explained that epithelial cells are found throughout the body and contain DNA.

Mills testified that the amylase and the epithelial cells on the bedsheet were consistent with saliva and vaginal secretions. The amylase on the bra was found in a high enough concentration that it was “indicative of saliva.” Mills further testified that the epithelial cells found on the bra could have come from TN simply wearing the bra. He sent those stains to Marilyn Chase, another USACIL examiner, for DNA analysis.

Chase was qualified as an expert at Luke’s court-martial in the forensic application of serological and DNA analysis. She testified about the techniques used to conduct DNA analysis, the quality control procedures in place at USACIL, as well as the peer review process for DNA analysis at USACIL. Chase examined TN’s bra, her panties, a cutting from the sheet, and a cutting from a blanket. Chase testified that “[w]hen I analyzed the DNA in the sheet, it was consistent — or—with a mixture — what you see in a mixture of the DNA profiles that were also seen in the blood standards of Luke and [TN].” Regarding the sample found on the bra worn by TN, Chase testified that her analysis revealed DNA types from at least three people on the bra which were consistent with the DNA profiles of TN, Luke, and RA.5 Defense counsel questioned Chase about the possibility of contamination of the samples in testing and the possibility of degradation of the specimens. Defense counsel also raised the possibility of exacerbation of degradation of a mixed sample when there are a number of different profiles in a specimen. On redirect examination, trial counsel questioned Chase about the specimens in Luke’s case and Chase stated “my controls worked properly in this case. I saw no indication of contamination in any of my reagents or any of the other controls in this case.”6

The testimony given by Mills and Chase as to the presence of saliva on TN’s bra was relied upon by the Government to support TN’s account of the incident (that Luke had sucked on her breast during the examination). The Government relied on the DNA on the bedsheet as proof that the encounter took place as TN described, contradicting the defense’s position that any evidence of saliva and Luke’s DNA on the sheet resulted because he had masturbated and then sucked his thumb on the bed that same day. Luke was subsequently found guilty of two specifications of indecent assault in violation of Article 134, UCMJ.

In 2005, six years after Luke’s court-martial and one month prior to argument on the two issues originally granted by this court, USACIL issued a memorandum to all staff judge advocates informing them that disci[313]*313plinary action had been taken against Phillip Mills, the USACIL forensic examiner who had conducted the serological examination in this ease.

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Cite This Page — Counsel Stack

Bluebook (online)
69 M.J. 309, 2011 CAAF LEXIS 78, 2011 WL 251443, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-luke-armfor-2011.