United States v. Moses

26 M.J. 980, 1988 WL 94130
CourtU S Air Force Court of Military Review
DecidedAugust 2, 1988
DocketACM 26209
StatusPublished
Cited by2 cases

This text of 26 M.J. 980 (United States v. Moses) is published on Counsel Stack Legal Research, covering U S Air Force Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Moses, 26 M.J. 980, 1988 WL 94130 (usafctmilrev 1988).

Opinions

DECISION

MURDOCK, Judge:

A general court-martial found the appellant guilty of rape, forcible sodomy, and burglary. The military judge found the burglary charge to be multiplicious with the sex offenses and dismissed it before the sentencing portion of the trial began. The court sentenced the appellant to a dishonorable discharge, 12 years confinement, total forfeitures, and reduction to airman basic. He now alleges two errors. We find no merit in them, but we believe some comment is necessary.

The charges arose from an early morning rape suffered by the victim in her trailer house. The trailer house was in a relatively remote off-base trailer park located about seven miles from the base. The victim began the evening socializing in her unit’s dormitory on base. Sometime in the early morning, she left to drive to her trailer. Almost immediately she sensed a car was following her. The car seemed to follow her all the way to her trailer park, despite some efforts on her part to elude the other driver. She hurriedly opened and relocked the gate to her yard area and entered the trailer. Once inside she had a snack, and fed her cat. Before she went to bed she looked outside to see whether the car that had followed her was in sight. Apparently satisfied that she was safe, she locked the door and went to bed. She left the window in the spare bedroom open so her cat could get some air, and closed her bedroom door so the cat would not come into her room.

She was not to get much sleep that night. Before she had fallen asleep, she was alerted by scratching noises near the door to her bedroom. When she looked up she found an intruder at the foot of her bed. There were no lights on in the trailer, but the night was clear and the quarter moon provided enough light to see fairly well.

Using a knife as persuasion, the intruder spent the next fifteen minutes requiring her to perform a variety of sexual acts with him. When he was satisfied, he told her to look the other way for 45 seconds while he dressed and left. While she was looking away she was further terrified when she heard what she thought was a rifle being loaded. She asked if he had a gun and he assured her that all he had was a knife. Then he was gone, as silently as he had arrived. At trial she identified the rifle-like sound as being the same as the sound made by the appellant’s knife going into its rigid sheath.

The police investigation revealed that the intruder had probably entered the trailer through the open window in the spare bedroom. The police were not able to find any good fingerprints, but the screen on the window had been slashed. There were no other signs of forced entry.

The appellant now asserts that he was denied effective assistance of counsel because of his counsel’s failure to investigate, prepare, and present his defense of alibi. This assertion is based principally on affidavits submitted by two people who were present in the dormitory on the night the crimes were committed. One, Airman Cleland, states that he was with the appellant “off and on” during the evening and early morning hours of the night of the crime. He remembers a party in the dormitory which both he and the appellant attended. He remembers the attendees, including the appellant, coming and going from the room during the evening. About 0100, Cleland and another airman went to the appellant’s room where they ate sandwiches. Cleland left about 15 minutes later. From this point, Cleland’s affidavit and the one submitted by Krista LaChance, a former airman, are nearly identical. Both affiants state that they were together in the hall [982]*982outside the appellant’s room from about 0145 until 0500 on the morning of the crime. They both state they could have seen anyone entering or leaving the appellant’s room, and that no one did during the time they were there. They state that the only activity around the appellant’s door occurred about 0300 when a security policeman knocked on the door. They both remember that no one responded to the policeman’s knock.

Both affiants state that they were interviewed by the Air Force Office of Special Investigations (AFOSI). Cleland states he made a written statement, while LaChance states she was interviewed twice, but that she made no written statement to the AFO-SI. Cleland states that from the time of his questioning by AFOSI until he was “called to appear at trial by the government counsel, [he] did not have an appointment with or interviews with the any (sic) attorneys for [the appellant].” LaChance states that from the time of her interview with the AFOSI “until this date, I have not been called, interviewed, or had an appointment with any of the attorneys representing [the appellant].”

Government appellate counsel has provided us with affidavits from the trial defense attorneys to help us evaluate this asserted error. Captain Sweetman, Area Defense Counsel at Cannon Air Force Base states:

I believe that, during the time of preparation, Captain Victorian and myself interviewed all alibi witnesses, including Cleland and LaChance. At approximately 0930 hours on 10 March 1987,1 made a note to myself indicating the need to talk to several witnesses, including Cleland. I subsequently cheeked off these items as being “done”. Furthermore, I have notes (undated) of my interview of Airman LaChance, which indicate that she told me she had not seen and, therefore, could not account for the whereabouts of Airman Moses on the night in question.
Some of the potential alibi witnesses interviewed by the Defense stated that they were intoxicated (by use of alcohol) during the evening hours of 6-7 February 1987. There was evidence that some had been involved with illicit use of drugs on the night in question. Several of the individuals interviewed by Defense as alibi witnesses had made written statements to the AFOSI. During our interviews, we discovered that some of these witnesses really were not certain of the times they saw Airman Moses in and around the dormitory, despite their prior statements to the AFOSI.
Captain Victorian and myself were keenly aware of the alibi evidence and defense in this case. We interviewed every individual who could have provided evidence on this point, but concluded it was best to go forward on the alibi defense with the testimony of Airman Moses and Airman McCoyle.

Captain Victorian, Circuit Defense Counsel, has similar memories. Her affidavit states in part:

As I recall both Airman Cleland and La-Chance were interviewed by the defense prior to trial____ To the best of my recollection, both denied any knowledge of Airman Moses’ whereabouts at the time of the alleged offenses. Furthermore, Cleland clearly implicated himself in use of marijuana____ He also implicated Airman Moses in use and distribution of marijuana and introduction of marijuana to a military installation. These allegations were uncharged at the time of trial____ These airmen were not called because we had no reason to believe, based on interview that either individual could support Airman Moses’ alibi defense. Moreover, the Military Judge granted a motion in limine to prohibit the prosecution from introducing evidence of the uncharged misconduct under MRE 404(b). We certainly did not want to open the door to such damning evidence in a heavily litigated case with allegations of sexual assault using a weapon.

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Related

United States v. Barnard
32 M.J. 530 (U S Air Force Court of Military Review, 1990)
United States v. Washington
29 M.J. 536 (U S Air Force Court of Military Review, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
26 M.J. 980, 1988 WL 94130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-moses-usafctmilrev-1988.