United States v. Morris

52 M.J. 193, 1999 CAAF LEXIS 1277
CourtCourt of Appeals for the Armed Forces
DecidedSeptember 30, 1999
Docket98-0471/MC
StatusPublished
Cited by28 cases

This text of 52 M.J. 193 (United States v. Morris) 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. Morris, 52 M.J. 193, 1999 CAAF LEXIS 1277 (Ark. 1999).

Opinions

Judge GIERKE

delivered the opinion of the Court.

A special court-martial composed of officer and enlisted members convicted appellant, contrary to his pleas, of making a false official statement, in violation of Article 107, Uniform Code of Military Justice, 10 USC § 907. Appellant also was charged with indecent assault, in violation of Article 134, UCMJ, 10 USC § 934, but he was convicted only of the lesser-included offense of assault consummated by a battery, in violation of Article 128, UCMJ, 10 USC § 928. The court-martial sentenced appellant to a bad-conduct discharge and reduction to the lowest enlisted grade. The convening authority approved the sentence but suspended the bad-conduct discharge for 24 months from the date of his action. The Court of Criminal Appeals affirmed the findings and sentence. 47 MJ 695 (1997). This Court granted review of the following issue:

WHETHER THE MILITARY JUDGE ERRED BY WITHHOLDING DOCUMENTS, AFTER AN IN CAMERA REVIEW, FROM THE DEFENSE WHICH CONSISTED OF THE ALLEGED VICTIM’S MEDICAL AND FAMILY SERVICE CENTER RECORDS WHICH CONTAINED REFERENCES TO SYMPTOMS AND DIAGNOSES OF POST TRAUMATIC STRESS DISORDER.

For the reasons set out below, we affirm.

Factual Background

Appellant and the victim, Lance Corporal (LCpl) CM, worked together as cooks and described themselves as “good friends.” CM testified that they did not have a romantic or sexual relationship. They spent off-duty time together, “[jjust hanging out” in each other’s barracks rooms, CM’s boyfriend’s room, or their workplace. LCpl CM testified that, “[a]t times,” they had conversations of a sexual nature. She testified that she and appellant gave each other back rubs, that appellant massaged the calves of her legs on one occasion, and that on two or three occasions appellant straddled her in bed to massage her back and shoulders. Asked if she remembered testifying previously that she and appellant sometimes fell asleep together, she responded, “I don’t remember ever saying that, occasionally, we did that.” She testified further that she did not remember appellant lying down next to her. LCpl CM denied having any contact of a sexual nature with appellant before the incident underlying the charges.

Contrary to CM’s denial that they had any sexual contact, appellant testified their friendship “progressed into a more physical touching and things of that nature.” He testified that he had fondled her breast on one occasion and touched her vagina on another occasion. He testified that CM had squeezed his buttocks while he was working at the grill in the mess hall, and fondled his genitals while they were both sitting on his bunk in the barracks. Appellant testified that the fondling in the barracks happened while appellant’s roommate was present, and the roommate corroborated appellant’s testimony at trial.

[195]*195On May 29, 1995, the day of the alleged offense, appellant visited CM in her barracks room four times. Approximately 30 minutes into the final visit, they began to talk about their relationship. At this point, their respective versions of the events diverge.

CM testified that appellant told her that he “cared deeply” about her. She responded that she “liked him, too — as a friend; but that nothing more than that could become of it,” because she had a boyfriend. Appellant responded that they could be secret lovers. CM testified that appellant then took off his shorts and was nude from the waist down. CM was wearing a robe with nothing underneath. She testified that appellant got on top of her and was fondling her. She told “him to get away from” her, and he responded by saying, “[W]e can keep this a secret; and you’re going to like it; I know you want it.” She testified that appellant sucked on her breasts and her neck, and grabbed one of her hands and placed it on his penis. She “squeezed one of his testicles,” causing him to “let out a yell.”

CM testified that the door of her barracks room was “cracked open” and that she and appellant were “fighting and screaming and yelling” the whole time, for about 20-30 minutes. She told him to get off her 4 or 5 times, but “he was trying to shut [her] up, and he sucked on [her] neck harder.” Eventually LCpl CM told appellant “to get the f— off me.”

CM testified that “[a]s soon as appellant got up, he said, ‘I feel so stupid. I thought you wanted it.’ ” She testified that appellant said, “Don’t tell anybody anything, because it can be a big legal thing, and I could get in trouble; and you’ll go crazy.” Later, CM walked with appellant to the dining hall and barracks recreation area, and talked with several Marines before returning to her room for the night.

That night, CM’s boyfriend noticed the “hickeys” on her neck. He became angry, thinking that she had been cheating on him. CM testified that she first told her boyfriend that she had been cheating on him, because she wanted to hide the incident with appellant from him. As he started asking her with whom she had been cheating, she told him that appellant had attacked her.

On the next day, after discussing the incident with another female Marine, CM reported the incident to her first sergeant and then to an agent of the Naval Criminal Investigative Service (NCIS).

Appellant’s testimony regarding the incident differed significantly from CM’s. He testified that CM asked him “in a sexy tone or seductive tone” how he felt about her. He told her, “I like you a lot, I think you’re fine.” Appellant testified that CM responded that “she didn’t know that that’s the way [he] felt.” Then she leaned forward and put her head on his chest, turned her head and kissed him on the neck. Appellant kissed her on the neck and ear lobe and began rubbing her hip, and she responded by moaning and saying that he was making her “horny.”

Appellant testified that when he attempted to kiss her on the lips, she said, “No, not on the lips.” He stopped momentarily and then resumed kissing her on the neck. After more mutual kissing, appellant leaned CM back onto the bed. Her robe fell open and appellant began kissing her on the top of her breast. He testified that she responded by continuing to Mss him, moan, and say he was making her “horny.”

Appellant testified that he then removed his shorts and underwear, and CM laughed or smirked and said, “Oh, my god.” He placed her hand on his genitals, and she did not respond. He then lay on top of her, and they engaged in more mutual Mssihg and hugging. He testified that, “all of a sudden, she said, ‘Stop,’ ” in a “[s]oft and sexy” tone of voice. He said, “What?” and Mssed her. She again said, “Stop it” in a “real soft” voice. Appellant testified that he asked her, “What, are you toying with me?” She then said, in a command tone, “Stop, get the f— off me.” Appellant got off immediately. He testified that there was no screaming and yelling during the entire episode.

He testified that he was upset and confused. CM told him, “Don’t tell nobody.” He responded, “[W]hy would I tell anybody, [196]*196because I’m the one that’s married.” At her request, appellant followed CM to the mess hall.

Appellant made two pretrial statements that were received in evidence. On May 30, 1995, the day after the incident, appellant was interviewed by an NCIS agent and provided a sworn statement. Appellant’s trial testimony was generally consistent vrith this statement.

On June 14, 1995, appellant was interviewed again and provided a second sworn statement.

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Cite This Page — Counsel Stack

Bluebook (online)
52 M.J. 193, 1999 CAAF LEXIS 1277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-morris-armfor-1999.