United States v. Ortiz

66 M.J. 334, 2008 CAAF LEXIS 722, 2008 WL 2246898
CourtCourt of Appeals for the Armed Forces
DecidedMay 30, 2008
Docket07-0555/AR
StatusPublished
Cited by4 cases

This text of 66 M.J. 334 (United States v. Ortiz) 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. Ortiz, 66 M.J. 334, 2008 CAAF LEXIS 722, 2008 WL 2246898 (Ark. 2008).

Opinions

Judge RYAN delivered the opinion of the Court.

A general court-martial, composed of military judge alone, convicted Appellant, contrary to his pleas, of rape of a child under sixteen, sodomy of a child under sixteen, two specifications of indecent liberties, indecent acts, and wrongful communication of a threat, in violation of Articles 120, 125, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920, 925, 934 (2000). The sentence adjudged by the court-martial and approved by the convening authority included a dishonorable discharge, reduction to the lowest enlisted grade, forfeiture of all pay and allowances, and confinement for twenty-five years. The United States Army Court of Criminal Appeals summarily affirmed the findings and sentence. United States v. Ortiz, No. ARMY 20040672 (A.Ct. Crim.App. Mar. 23, 2007) (unpublished). On Appellant’s petition, we granted review.1

I. Facts

Appellant was accused of raping, sodomizing, and subsequently threatening the daughter of a family friend and neighbor. The victim, BP, was nine years old when the crimes were committed. At the time of trial she was eleven.

BP was the first witness called by the Government at trial. It is apparent from the record that she had considerable difficulty testifying. Despite efforts by the trial counsel, whom the military judge gave leave to ask leading questions, BP’s answers were largely unresponsive and inaudible.

The military judge allowed BP to take a break in order to “get her composure.” During the break, the military judge conducted a brief Rule for Courts-Martial (R.C.M.) 802 session. The parties agreed that BP’s Victim Witness Advocate would move from the gallery, where she had been sitting at the outset of BP’s testimony, to the panel box, so that BP could see her more easily and answer questions more directly. BP continued to be unresponsive.

Trial counsel then moved to admit as exhibits two anatomically correct dolls to assist in BP’s testimony. Defense counsel lodged an objection, at which time BP told defense counsel to “shut up.” The military judge instructed her to treat everyone in the courtroom with respect.

At this point, trial counsel moved to clear the gallery:

TC: Your honor, at this time the government would move the court to clear the gallery of spectators. The reason for that is that it’s apparent from [BP’s] testimony that she’s having [336]*336difficulty testifying. I believe that’s resulting from some embarrassment. And we would ask that the court exclude the members of the gallery from the gallery of the courtroom.
MJ: What’s your authority?
TC: In the Manual for Courts-Martial 2002 Edition, in the discussion section under Rule 806 where it discusses the Rule for 806 about a public trial, it says that “occasionally defense and prosecution may agree and request a closed session to enable a witness to testify without fear of intimidation or acute embarrassment or will testify about a matter, which while not classified as of a sensitive or private nature and that closure may be appropriate in such cases.”
MJ: Does defense have an objection to clearing the gallery for [BP’s] testimony?
DC: Judge, we would note our objection to excluding the people from the gallery. Number one, it’s a public trial. Number two, as I read the paragraph that the court invited to my attention, it says, “occasionally defense and prosecution may agree to request a closed session to enable a witness to testify without fear of intimidation or acute embarrassment, etc.” I don’t know that there’s been any intimidation, that’s for sure. Secondly, judge, as far as the gallery is concerned, the young lady had had her back to the gallery because of the positioning of the microphone. She’s primarily—
MJ: Well, I agree, but — but I think when they’re — I think the intent there is if they are here and can hear, that it would be — that it is — (pause)—that it would be difficult.
TC: Your honor, the government also wants to ask — it’s not only that intimidation or embarrassment. It also goes on to say in the discussion “if the matters are of a sensitive or a private nature” and the government has good faith belief to believe that [BP] could testify to matters that are of a sensitive and private matter to her.2

In response to the motion and argument, the military judge stated that “the question seems to be ... whether or not she’s going to be capable of doing it — whether she would be more capable of doing it or more able to do it if the gallery were briefly excluded.” The military judge then recessed the court for approximately ten minutes in order to research and consider the motion.

Upon calling the court to order, the military judge ordered a chair be placed in the well of the court, directly in front of her bench, and proceeded to question BP.

MJ: Okay. Now you’ve said before you’re 11?
WIT: Yes.
[337]*337MJ: Okay, good. You’re going to become a professional at this before too long. (Pause.) Are you nervous?
WIT: Yes.
MJ: Why are you nervous?
WIT: Because.
MJ: Is this hard?
WIT: Yes.
MJ: Why is it hard?
WIT: Because somebody’s in here.
MJ: Because people are here?
WIT: No, because — yes, and to somebody.
MJ: Because somebody is here.
WIT: Yes, and because people are here.
MJ: Okay.
MJ: Okay, you said it was hard because there are people here?
WIT: (Affirmative nod.)
MJ: When you get nervous, do you tend to talk real low like you’re doing now?
WIT: I guess.
MJ: Well, I’m just thinking that if you’re a cheerleader you have to be able to yell and scream, right?
WIT: Yes.
MJ: Okay. So are you talking real low and scrunching down in your seat because this is a hard thing to talk about?
WIT: Yes.
MJ: And because there are a lot of adults here and you’re the only kid?
WIT: No.
MJ: No?
Wit: No.
MJ: Are you upset to be here today?
WIT: No.
MJ: You’re not upset to be here?
WIT: (Negative head shake.)
MJ: Okay. Even though your chair is faced towards me, do you know— are you aware — is it problematic that there are people in the — back in the gallery?
WIT: What do you mean?

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Cite This Page — Counsel Stack

Bluebook (online)
66 M.J. 334, 2008 CAAF LEXIS 722, 2008 WL 2246898, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ortiz-armfor-2008.