United States v. Lutz

18 M.J. 763, 1984 CMR LEXIS 3885
U S Coast Guard Court of Military Review·Decided August 3, 1984·No. Docket No. 863; CGCM 9977·Published·Cited by 4 cases

Opinion

DECISION

CEDARBURG, Chief Judge.

Appellant, contrary to his pleas, was found guilty at a general court-martial comprised of officer members, of one specification of oral sodomy with a child under the age of 16, 3 specifications of lascivious acts with females under the age of 16 and 2 specifications of taking indecent liberties with females under the age of 16 in violation of Articles 125 and 134, UCMJ, 10 U.S.C. §§ 925, 934. He was acquitted of 1 specification of sodomy, and 6 specifications of lascivious acts charged under Articles 125 and 134, UCMJ. The military judge, on motion of appellant, also dismissed one specification of lascivious acts and one specification of indecent language alleged under Article 134, UCMJ.

Petty Officer Lutz was sentenced to a bad conduct discharge, confinement at hard labor for two years, forfeiture of all pay and allowances and reduction to the lowest enlisted pay grade.

Appellant assigns as error the following:

I
THE CONVENING AUTHORITY ERRED TO THE SUBSTANTIAL PREJUDICE OF THE APPELLANT AND ABUSED HIS DISCRETION BY DESIGNATING AS COURT MEMBERS OFFICERS FROM A GEOGRAPHIC LOCATION WHERE HOSTILITY TOWARDS THE APPELLANT WAS SO GREAT THAT THE DISTRICT LEGAL OFFICER IN THAT LOCATION REQUESTED THAT, DESPITE THEIR OBLIGATION TO REPRESENT UNPOPULAR CAUSES AND CLIENTS, NONE OF HIS STAFF ATTORNEYS BE ASSIGNED AS THE APPELLANT’S DEFENSE COUNSEL.
II
THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF THE APPELLANT, AND PREVENTED THE APPELLANT FROM EFFECTIVELY DEFENDING HIMSELF AT TRIAL, BY NOT ALLOWING THE APPELLANT TO PRESENT CERTAIN EVIDENCE OF HIS GOOD MORAL CHARACTER, A TRAIT WHICH COULD HAVE RAISED REASONABLE DOUBTS CONCERNING THE TRUTH OF THE CHARGES MADE AGAINST THE APPELLANT IN THE MINDS OF THE TRIERS OF FACT.

Appellate defense counsel, pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.1982) has invited our attention to the Article 38(c) UCMJ, 10 U.S.C. § 838(c), brief of trial defense counsel, expressly incorporating it into his appellate brief.

Appellant was charged with two counts of sodomy, one involving his daughter, age 10, and another involving a friend of his daughter, also age 10. He was also charged with 13 allegations of acts involving sexual improprieties with female children whose ages ranged from ten to twelve years. Eleven children, all of whom, including his own daughter, were dependents of Coast Guard personnel assigned to units located on Governors Island, New York, [765] allegedly were molested between March and June of 1982.

A motion was made in an Article 39(a), 10 U.S.C. § 839(a) session, prior to arraignment, for a change of venue, or in the alternative, that court members be chosen from commands not physically located on or nearby Governors Island. The specific issue now before the Court, questioning the exercise of discretion by the convening authority in choosing court members from Governors Island, was not raised. Evidence was presented by the defense in an effort to establish a general atmosphere of hostility or partiality such that the appellant could not receive a fair trial. Appellant, citing United States v. Angeles, 49 C.M.R. 90 (N.C.M.R.1974) and United States v. Hedges, 11 C.M.A. 642, 29 C.M.R. 458 (C.M.A.1960), contends that the evidence establishes that the convening authority abused his discretion in selecting court members from commands located at Governors Island.

The Government also presented evidence in an attempt to show a lack of pervasive interest in the case and hostility towards appellant in the Governors Island community.

The defense presented evidence as follows:

1. A stipulation of expected testimony of the District Legal Officer, Third Coast Guard District concerning a conversation between him and the Chief, Legal Administrative Division, USCG Headquarters in September 1982. The District Legal Officer expressed a preference for assignment of out of district defense counsel to represent appellant and another individual at Governors Island also charged with sexual abuse of children. The pertinent stipulated testimony was substantially as follows:

“... although I could assign two of my staff attorneys at Governor’s (sic) Island to serve as detailed defense counsel, I preferred to have an attorney come from out of district to represent these accused because my attorneys have to live and work on Governor’s (sic) Island. Acting as the defense counsel in this case may prejudice their positions of having to provide legal services to other commands on the Island.”

2. A stipulation of expected testimony of Subsistence Specialist First Class Michael J. Lutz, USCG that he had received a total of 7 anonymous telephone calls at his place of duty on 2 days during a 10 day period in September 1982 at the time charges against appellant were being investigated. Subsistence Specialist Lutz, not related to appellant, answered the phone, “Governors Island Officer’s Club, this is Petty Officer Lutz.” The caller would say, “that’s all I wanted to know”.

3. The testimony of Lieutenant Commander Francis J. Winn, Jr., a psychologist with the Public Health Service. He testified that in his capacity as head of the psychiatric screening unit at Support Center, New York he had conducted a group session with the mothers of the daughters involved in both alleged sex cases and also conducted individual and therapy interviews. All of his observations of hostility towards appellant were derived from those clinical settings. Some people he interviewed were very angry, others were quite upset. No personal threats against appellant were made in any session although he alluded to non-specific threats which he explained as people projecting their feelings of anger, hurt and guilt. He expressed a belief that because of the small, tight-knit nature of the island people are generally aware of what other people are doing. Although he said Governors Island is a small tight-knit island where “things” spread very quickly he qualified his remarks by saying there is a small group of people among whom it spreads.

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United States v. Lutz, 18 M.J. 763, 1984 CMR LEXIS 3885 (cgcomilrev 1984).

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