United States v. Pearson

13 M.J. 922, 1982 CMR LEXIS 936
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedJune 30, 1982
DocketNMCM 81 1258
StatusPublished
Cited by2 cases

This text of 13 M.J. 922 (United States v. Pearson) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps 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. Pearson, 13 M.J. 922, 1982 CMR LEXIS 936 (usnmcmilrev 1982).

Opinions

GLADIS, Senior Judge:

Charged with unpremeditated murder, the accused was convicted, contrary to his pleas, by a general court-martial composed of officer and enlisted members of negligent homicide and sentenced to a bad-conduct discharge, confinement at hard labor for one year, total forfeitures, and reduction to pay grade E-l. The accused assigns ten errors. We find merit in none, but discuss several assignments.

II

THE MILITARY JUDGE ERRED BY DENYING THE APPELLANT’S REQUEST FOR THE EMPLOYMENT OF AN EXPERT BECAUSE (A) SECTION 3006A(e) OF THE CRIMINAL JUSTICE ACT 18 U.S.C. § 3006A(e) APPLIES TO PERSONS IN THE MILITARY (B) UNDER THE CIRCUMSTANCES, EMPLOYMENT OF AN EXPERT WAS CONSTITUTIONALLY MANDATED, AND (C) THE APPELLANT IS ENTITLED TO EXPERT ASSISTANCE PURSUANT TO MILITARY LAW.

At trial the accused renewed pretrial motions for investigative and expert assistance. He desired an investigation into the background of the victim and the testimony of a trauma expert and an anthropologist, whom he characterized as an accident reconstruction expert.

The Court of Military Appeals has held that the provisions of 18 U.S.C. § 3006A(e) have no application in military law. United States v. Johnson, 22 U.S.C.M.A. 424, 47 C.M.R. 402 (1973). This Court has held that investigative assistance is not constitutionally mandated. United States v. Gaines, No. 80 0413 (NMCMR 30 November 1981) (unpublished); United States v. Drouin, No. 78 0319 (NCMR 21 January 1981) (unpublished). Mil.R.Evid. (MRE) 706 provides that the defense counsel has an equal opportunity to obtain expert witnesses under Article 46, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 846. Under the circumstances of this case the accused has not been prejudiced by denial of his requests. We are convinced that the assistance and testimony sought would not have affected the outcome of the trial. See State v. Tatum, 291 N.C. 73, 229 S.E.2d 562 (1976).

IV

THE MILITARY JUDGE ERRED IN DENYING COUNSEL THE OPPORTUNITY TO VOIR DIRE THE MEMBERS.

[925]*925The accused contends that the military judge erred by refusing to allow the defense to conduct voir dire and to ask questions proposed by the defense. United States v. Slubowski, 7 M.J. 461 (C.M.A.1979), authorizes the judge alone to conduct voir dire if he allows counsel to submit additional questions. Defense counsel submitted numerous questions for voir dire before the judge conducted the inquiry. Although the judge did not ask all of these questions, after completing his inquiry, he afforded counsel the opportunity to suggest specific areas of additional inquiry. Defense counsel declined to do so, but merely reiterated his request that the judge ask all the questions previously submitted, even though the judge had covered many of these areas in his inquiry. (R. 126.) We cannot distinguish the instant case from Siubowski and reject the assignment of error.

VI

THE MILITARY JUDGE ERRED IN ALLOWING SGT. DURAN, SGT. GREEN, GYST. LOCKE, AND MR. LEROY TO TESTIFY IN THE PROSECUTION CASE IN REBUTTAL.

The accused contends that the receipt of evidence of the victim’s character for peacefulness was error because the evidence established the victim was the aggressor. The victim was talking to a young lady at the enlisted club who, according to her testimony, was holding his arm and had her hand around his waist. The accused testified to the following. He approached her, placed his hand on her, and whispered to her “If I told you you had beautiful eyes, would you be my lover?” She said, “No”; the victim told the accused that she was his girl; the accused replied, “No, it’s (sic) not.” The victim shoved him against a table. The victim took a step and the accused did not know what happened to the victim after that. The accused was hit in the jaw. He does not know who hit him. He stumbled back into a chair and saw three or four people coming in his direction, and threw the chair at the group of people, turned around and walked away. The evidence establishes that the victim pushed the accused and was afterwards struck by the chair in the head with the fatal blow. There was evidence that the victim turned away from the accused after he pushed him, that the accused picked up and swung the chair like a baseball bat striking the victim in the side of the head, and that the accused was not struck in the jaw by anyone before he swung the chair. Thus there was evidence that, although the victim was the initial aggressor, he turned aside. The testimony of the accused raised a permissible inference that the victim did not turn aside but advanced on the accused after he pushed him. Thus, evidence of the victim’s character for peacefulness was relevant. MRE 404. The military judge did not abuse his discretion in admitting it.

VII

THE EVIDENCE WAS INSUFFICIENT TO CONVICT APPELLANT OF NEGLIGENT HOMICIDE BEYOND A REASONABLE DOUBT.

Recognizing, as we must, that the triers of fact saw and heard the witnesses, we are convinced beyond a reasonable doubt that the evidence was sufficient to establish the accused’s guilt of negligent homicide.

VIII

THE MILITARY JUDGE ERRED BY ALLOWING GYSGT LOCKE AND MR. LEROY TO TESTIFY IN AGGRAVATION.

Defense counsel argued at an Article 39(a) session that during sentencing proceedings in a not guilty plea case the Government cannot introduce evidence of aggravating circumstances. Defense counsel also objected because the probative value of the evidence about to be elicited was tenuous and outweighed by its potential prejudice. Trial counsel stated that GYSGT Locke would testify as to the impact of the death of the victim on his squadron and Mr. Leroy, the victim’s father, [926]*926would testify as to the impact on his family and community. The judge cautioned against eliciting acts of uncharged misconduct, but overruled the objections.

After eliciting GYSGT Locke’s laudatory opinion of the victim as a Marine, trial counsel asked what the impact of the victim’s death on his squadron had been. Locke answered that the squadron had been shaken up, could not understand how the tragedy had occurred in the senseless way it did, and was waiting to find out the verdict of the court and how the victim’s killer would be treated. Defense counsel did not object to the answer.

Mr. Leroy testified that the victim was a perfect son and that the accused would never know what he had taken away from them. When asked by trial counsel what the impact of his son’s death was on his community in Wisconsin, Mr. Leroy answered that the word “devastating” could not describe it and that he did not know how he could go back home and tell them that the verdict was negligent homicide. The military judge immediately recessed the court and at an Article 39(a) session rebuked Mr. Leroy for criticizing the verdict of the court. When the members returned, the military judge gave no instruction to disregard any portions of the testimony. Defense counsel requested none.

Paragraph 75b (3), Manual for Courts-Martial, 1969 (Rev.)

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Related

United States v. Pearson
17 M.J. 149 (United States Court of Military Appeals, 1984)
United States v. Yarborough
14 M.J. 968 (U.S. Army Court of Military Review, 1982)

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