United States v. Owens

21 M.J. 117, 1985 CMA LEXIS 13862
CourtUnited States Court of Military Appeals
DecidedDecember 9, 1985
DocketNo. 48239; CM 442375
StatusPublished
Cited by27 cases

This text of 21 M.J. 117 (United States v. Owens) is published on Counsel Stack Legal Research, covering United States Court of Military 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. Owens, 21 M.J. 117, 1985 CMA LEXIS 13862 (cma 1985).

Opinion

Opinion of the Court

COX, Judge:

Appellant was tried by a general court-martial composed of officer members and a military judge during November and December, 1981, at Fort Campbell, Kentucky. Pursuant to his pleas, he was found guilty of violating a general regulation by possessing an unregistered firearm, in violation of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892. Contrary to his pleas, he was found guilty of intentionally murdering his wife, Mary Owens, without premeditation, in violation of Article 118(2), UCMJ, 10 U.S.C. § 918(2). The members sentenced appellant to a dishonorable discharge, confinement at hard labor for 25 years, and total forfeitures. The convening authority approved the sentence and the Court of Military Review affirmed. 16 M.J. 999 (1983).

The circumstances surrounding appellant’s conviction for unpremeditated murder were summarized by the court below as follows:

On 4 September 1981, Gari Owens was apprehended for the murder of his wife, Mary Owens. She died in the early morning hours of 4 September as a result of a single gunshot which entered her back causing a large laceration of the liver and perforation of the breathing muscle. Death was due to excessive bleeding. At the time Mary Owens had been driving the couple’s Volkswagen Rabbit down the street from their quarters at Fort Campbell, Kentucky. Gari Owens held the 30.06 rifle mounted with a “Bushnell 4” telescopic sight which fired the fatal bullet.
At the trial the government introduced evidence to show that Gari Owens fired the weapon in anger following a domestic quarrel and that Owens intended his wife’s death or grievous bodily harm. In defense Owens took the stand. An experienced hunter and marksman, Owens claimed that he had been standing in front of his house examining his rifle and that he had chambered a round and cleared the weapon by pulling the trigger. He maintained that his wife’s death was a tragic accident.

Id. at 1000.

Before this court-martial, defense counsel filed several motions to exclude prosecution evidence of appellant’s prior convictions and arrest for ciiminal conduct in civilian jurisdictions. These motions, based on Mil.R.Evid. 404 and 609, were raised again at trial, but the military judge deferred his rulings until the prosecution attempted to introduce such evidence.

Later, after appellant testified on direct examination, the military judge held an Article 39(a), UCMJ, 10 U.S.C. § 839(a), session. The judge discussed with counsel the probability that matters referred to in the earlier defense motions would be brought up during cross-examination of appellant. Trial counsel indicated that he would question appellant concerning omission of these matters from his warrant-officer application and accompanying statement of personal history but would not go into the details of these omissions.

Appellant denied that he had ever lied under oath or affirmation. He initially stated that his affirmative answers to these questions were truthful. He later admitted that he had lied under oath or affirmation by omitting the complete answers to these two questions on the application. He explained, however, that he did not realize that he was lying or that the complete answers were not on the forms. During this cross-examination, no mention was made as to the nature or details of these omissions.

At this point in the trial, a second session was held by the military judge outside the presence of the members. Trial counsel indicated his intention to cross-examine appellant using the questions which are chai[120]*120lenged on appeal. He asserted that they were permissible under Mil.R.Evid. 608(b). Defense counsel objected on the basis of Mil.R.Evid. 609. The trial judge permitted the questions, and substantially negative answers were provided by appellant.

It is important to identify the questions of trial counsel which form the basis for this appeal. Appellant was cross-examined as follows:

Questions by assistant trial counsel:
Q. Mr. Owens, isn’t it a fact that as to your application for appointment as a Warrant Officer in the United States Army and the statement of personal history attached to it, that you knowingly omitted the fact from questions 19 and 18, that you had been convicted in Daleville, Alabama, for the possession of marihuana and marihuana paraphernalia in 1976?
A. No, sir.
Q. Is it not a fact that you intentionally omitted from both of these documents the fact that you had been arrested in 1976 in Daleville, Alabama, for assault and battery on your second wife, Mrs. Jennifer Conant Braun?
A. No, sir.
Q. Is it not a fact that you omitted from both of these documents, the fact that you had been convicted in Enterprise, Alabama, for carrying a .22 caliber pistol in your automobile without a permit in 1976?
A. It was admitted — it was omitted, rather. I did not knowingly omit it.
Q. You did not knowingly omit it?
A. I did not omit it.
Q. Mr. Owens, isn’t it a fact that you knowingly omitted all three of these matters from those two documents because you realized that if you put them in there, you likely would not become the Warrant Officer that you wanted so badly to become?
A. No, Sir. That’s not true.

After this cross-examination, defense counsel questioned appellant in detail about these omissions. He admitted to two prior convictions and provided explanations for the underlying conduct. He further explained the omission of this information from these forms. He testified that he informed the personnel specialists processing his application that he had a local marihuana offense and pistol offense. He asserted that he relied on these personnel specialists to properly process his application and signed the final papers without reading them. He made no admission concerning his prior arrest for assault or any claim that he disclosed this matter to them.

Finally, prior to deliberation on findings, the military judge gave the following instruction:

Now, there was certain evidence in this case which I admitted for certain limited purposes. Specifically on cross-examination of the accused, the trial counsel presented the accused with a document which was not offered in evidence but this line of questioning was engaged in for the limited purpose of determining the credibility of the accused as a witness. And specifically as to this issue, the accused replied that when he submitted his application for a warrant officer and the accompanying statement of personal history, when answering the question whether or not he had ever been arrested or convicted for offenses, he answered “yes,” but did not give complete answers.

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Bluebook (online)
21 M.J. 117, 1985 CMA LEXIS 13862, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-owens-cma-1985.