United States v. Montgomery

56 M.J. 660, 2001 CCA LEXIS 315, 2001 WL 1548699
CourtArmy Court of Criminal Appeals
DecidedDecember 6, 2001
DocketARMY 9800799
StatusPublished
Cited by7 cases

This text of 56 M.J. 660 (United States v. Montgomery) is published on Counsel Stack Legal Research, covering Army Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Montgomery, 56 M.J. 660, 2001 CCA LEXIS 315, 2001 WL 1548699 (acca 2001).

Opinion

OPINION OF THE COURT

HARVEY, Judge:

A special court-martial composed of officer and enlisted members convicted appellant, contrary to his pleas, of willfully disobeying a superior commissioned officer, assault consummated by a battery, and adultery, in violation of Articles 90,128, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 890, 928, and 934 [hereinafter UCMJ], The convening authority approved the adjudged sentence to a bad-conduct discharge, confinement for ninety days, forfeiture of $615.00 pay per month for three months, and reduction to Private El. The convening authority credited appellant with five days of confinement credit and waived automatic forfeitures of pay, directing payment of such monies to appellant’s spouse pursuant to Article 58b(b), UCMJ, 10 U.S.C. § 858b(b).

In this Article 66, UCMJ, 10 U.S.C. § 866, appeal, appellate defense counsel assert eight assignments of error, and appellant raises eight issues for our consideration pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.1982). Government appellate counsel counter that all assigned and Grostefon errors lack merit and urge us to affirm the findings and sentence. We find that appellant was prejudiced by the cumulative effect of the military judge’s erroneous decisions: (1) denying defense requests for continuances; (2) prohibiting two witnesses from testifying about the character of Ms. Jones (the victim); (3) prohibiting cross-examination of Ms. Jones as to instances of alleged untruthfulness, specific contradiction, and bias; and (4) prohibiting extrinsic impeachment evidence showing Ms. Jones’ bias.

FACTS

Ms. Jones was the principal prosecution witness on the merits. She provided the only direct evidence of the offenses. Ms. Jones testified that she engaged in a sexual relationship with appellant from about November 1996 until about February 1997. She testified that appellant paid her before the first time they engaged in sexual intercourse, and he either paid her or performed other favors for her the other three or four times they engaged in sexual intercourse. Ms. Jones ended the relationship with appellant because he was "married. On cross-examination, Ms. Jones testified that she learned from appellant’s medical records that he was a hermaphrodite,1 and that she did not know if he had a vagina or if he was circumcised. [663]*663Initially, Ms. Jones denied that she owed appellant money. Later, on questioning by the military judge, Ms. Jones admitted that appellant loaned her money “a couple of times,” and stated that appellant knew that she had to pay him back. She denied that she gave appellant forged checks in return for cash.

Ms. Jones further testified that when appellant arrived unexpectedly at her residence on 10 August 1997, he was upset with her because she was involved in another relationship. An argument ensued, during which appellant grabbed Ms. Jones by her neck. She pushed him away, scratched him, and tore a necklace from his neck. Appellant pulled out his poeketknife, opened it, and held the blade against Ms. Jones’ wrist. Appellant threatened to kill Ms. Jones,2 and then cut her right wrist. He also cut her left thumb. Ms. Jones told appellant that she did not want her children to see her bleeding and went next door to get cleaned up. Ms. Jones called 911 from her neighbor’s residence. The civilian police arrived, arrested appellant, and seized a knife from his pocket. The cut to Ms. Jones’ wrist involved a lacerated tendon, which Ms. Jones was treated for that day in the emergency room. Ms. Jones failed to return for any follow-up medical appointments.

The military judge admitted into evidence appellant’s sworn, written statement to civilian police. Appellant’s statement indicated that on 10 August 1997, he went to see Ms. Jones because she owed him money. Appellant received several checks from Ms. Jones that he cashed for her. These checks were returned for insufficient funds, causing appellant to lose $900.00. Ms. Jones told him that she did not have any money and asked appellant to leave her residence because of her flaneé. Appellant was cleaning his fingernails with his knife when Ms. Jones grabbed the knife. During the struggle for possession of his knife, appellant pushed Ms. Jones, causing her to accidentally cut herself. Appellant did not testify on the merits.

On 25 November 1997, appellant received a written order from his brigade commander not to contact or attempt to contact Ms. Jones either directly or through third parties [hereinafter “no-contact order”]. Ms. Jones testified that she received two notes in appellant’s handwriting at her residence between September and December 1997. One note referenced the result of appellant’s 2 December 1997 trial in civilian court.

Appellant’s defense had two-prongs: (1) he attacked Ms. Jones’ credibility; and (2) he asserted, based on his sworn written statement to civilian police, that the cutting of Ms. Jones’ wrist was an accident that resulted from her aggressive attempt to grab his knife while he was using it to clean his fingernails. The military judge denied a series of defense motions for continuances and witnesses. He also refused to permit the cross-examination of Ms. Jones concerning specific instances of prior dishonest, aggressive, and violent conduct; extrinsic evidence to contradict her testimony that she was quiet and passive when involved in a stressful confrontation; and evidence of her bias against appellant.

Denial of Continuances

The military judge denied several defense requests for continuances that prejudiced appellant. The evening before the members were scheduled to be impaneled, the government notified the defense that two witnesses, who they previously intended to call to prove the violation of the no-contact order, could not be located. The government also provided the defense with notes that Ms. Jones delivered to the government the same day. Ms. Jones said that she recognized appellant’s handwriting on the notes, and that they were left at her home while she was not there. Prior to Ms. Jones’ delivery of these notes to the trial counsel, the testimony of the two witnesses who could no longer be located constituted the only evidence of appellant’s attempt to contact Ms. Jones in violation of the no-contact order. The morning after receiving this notification by the government, the defense requested a conün[664]*664uance based on this significant change in the government’s evidence regarding appellant’s violation of the no-contact order. The defense requested the continuance in order to canvass Ms. Jones’ neighbors and otherwise investigate the origin of the notes. The military judge gave the defense from 0956 until after lunch to investigate the origin and reliability of the notes and to interview Ms. Jones.3

At the next trial session, but still prior to assembly, the defense did not ask for an additional delay to investigate the notes. The defense instead requested a continuance to conduct handwriting analysis of two checks 4

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Cite This Page — Counsel Stack

Bluebook (online)
56 M.J. 660, 2001 CCA LEXIS 315, 2001 WL 1548699, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-montgomery-acca-2001.