United States v. Morris

47 M.J. 695, 1997 CCA LEXIS 615, 1997 WL 801439
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedDecember 23, 1997
DocketNMCM 96 01146
StatusPublished
Cited by5 cases

This text of 47 M.J. 695 (United States v. Morris) is published on Counsel Stack Legal Research, covering Navy-Marine Corps 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. Morris, 47 M.J. 695, 1997 CCA LEXIS 615, 1997 WL 801439 (N.M. 1997).

Opinion

OLIVER, Judge:

A special court-martial composed of officer and enlisted members convicted the appellant, contrary to his pleas, of a false official statement and simple battery, in violation of Articles 107 and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 907, 928 (1994)[hereinafter UCMJ].1 The appellant was sentenced to reduction to the lowest enlisted pay grade and a bad-conduct discharge. On 16 May 1996 the convening authority approved the sentence; however, he suspended the bad-conduct discharge for a period of 24 months from the date of his action.

We have reviewed the record of trial, the eight assignments of error,2 and the Govern-[699]*699merit’s response thereto. We conclude that the findings and sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant was committed. After a brief discussion of the facts, we will consider each of the assigned errors in order.

Facts

The appellant and Lance Corporal M. were co-workers and best of friends. On Monday, 29 May 1995, Memorial Day, they both were enjoying holiday routine. On at least two occasions that afternoon the appellant visited Lance Corporal M. in her barrack’s room. On the final visit, she was wearing nothing but a bathrobe. Although their testimony differed markedly on the issue of consent, during his testimony the appellant admitted kissing, sucking, and fondling Lance Corporal M.’s neck and breasts. This activity left several “hickies” and bruises on her upper body. Finally, after she communicated to the appellant in no uncertain terms to stop and get off her, he did so. She did not immediately report the assault.

Later that evening, when Lance Corporal M. was with her boyfriend, Corporal D., he noticed the marks on her neck and they discussed the incident. The next morning one of her co-workers also noticed the marks and inquired as to what happened. Subsequently, Lance Corporal M. filed a complaint with her command and made a statement to the Naval Criminal Investigative Service (NCIS) implicating the appellant in a sexual assault.

Special agents from the NCIS interviewed the appellant on two occasions, on the afternoon of 30 May 1995 and again 2 weeks later. After waiving his rights, the appellant answered questions and eventually signed two written statements. In Prosecution Exhibit 1 the appellant admitted having had a sexual encounter with Lance Corporal M., but claimed that she had consented fully to what he was doing. In Prosecution Exhibit 2, which was taken during an NCIS interview prior to participating in a polygraph, the appellant admitted that he had sexually assaulted Lance Corporal M. over her repeated objections.

The court-martial was hotly litigated, with both the appellant and Lance Corporal M. testifying as to what happened on that afternoon and early evening. The Government called the NCIS agents to introduce the appellant’s two statements. The appellant’s theory was that Lance Corporal M. had consented to the kissing and fondling, and that he stopped as soon as she manifested her objection. He explained the incriminating admissions in Prosecution Exhibit 2 by testifying that those were the agent’s words, not his, and that he only signed because he expected to be exonerated fully once he was given the polygraph. In addition, many witnesses testified in exhaustive detail on collateral matters.3

Partial Denial of the Appellant’s Discovery Request

In his first assignment of error the appellant contends that “[t]he military judge erred when he failed to disclose [the] records contained in Appellate Exhibit L.” Brief and Assignment of Errors at 3.4 We disagree.

Prior to the trial, the defense sought the production of all medical, psychological, and counseling records involving Lance Corporal M.5 Appellate Exhibit III. After the Gov[700]*700ernment contended these records were irrelevant, the military judge ordered that all such documents be delivered for his in camera review. Record at 8-9. Except for a statement the victim had made to her counselor concerning her recollection of the appellant’s attack on the date in question, the military judge determined that these records did not include any information material to his defense. He ordered the records sealed and attached to the original record of trial as Appellate Exhibit L.

The military judge’s decision to view the contents of Appellate Exhibit L in camera and to disclose only the relevant portions of it to the defense was an appropriate exercise of his authority under Rule for Courts-Martial 701(g)(2), Manual for Courts-Martial, United States (1995 ed.)[hereinafter R.C.M.]; see United States v. Charles, 40 M.J. 414, 415 (C.M.A.1994). We have applied a de novo approach in determining whether the requested documents were legally relevant to the proceedings. Charles, 40 M.J. at 417; see United States v. Price, 13 F.3d 711, 722 (3d Cir.1994), cert, denied, 514 U.S. 1023, 115 S.Ct. 1372, 131 L.Ed.2d 227 (1995). We have also applied a “clearly erroneous” standard in reviewing the military judge’s findings concerning precisely how much of the documents in Appellate Exhibit L to make available to the defense. See Price, 13 F.3d at 722; United States v. Per-domo, 929 F.2d 967, 969 (3d Cir.1991).

“Military law provides a much more direct and generally broader means of discovery by an accused than is normally available to him in civilian courts.” United States v. Reece, 25 M.J. 93, 94 (C.M.A.1987) (citations omitted). A military accused’s discovery rights derive from the Constitution, the UMCJ, and the Rules for Courts-Martial. The appellant’s arguments implicate all three of these sources.

In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963), the Supreme Court held that prosecution suppression of evidence favorable to the defense, after a request for such information, violates constitutional due process whenever the evidence is material to either guilt or punishment. In United States v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 2399-2400, 49 L.Ed.2d 342 (1976), the Supreme Court extended the Government’s duty to produce exculpatory information. The Uniform Code of Military Justice guarantees both sides “equal opportunity to obtain ... evidence in accordance with such regulations as the President may prescribe.” Art. 46, UCMJ, 10 U.S.C. § 846.

R.C.M. 701 sets out the disclosure obligations for both sides in courts-martial. R.C.M.

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Bluebook (online)
47 M.J. 695, 1997 CCA LEXIS 615, 1997 WL 801439, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-morris-nmcca-1997.