United States v. Peel

29 M.J. 235, 1989 CMA LEXIS 3577, 1989 WL 111601
CourtUnited States Court of Military Appeals
DecidedSeptember 29, 1989
DocketNo. 60,084; ACM 26000
StatusPublished
Cited by34 cases

This text of 29 M.J. 235 (United States v. Peel) 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. Peel, 29 M.J. 235, 1989 CMA LEXIS 3577, 1989 WL 111601 (cma 1989).

Opinion

Opinion of the Court

EVERETT, Chief Judge:

A general court-martial composed of officer members tried appellant at Royal Air Force (RAF) Mildenhall, England, for the rapes of Carol Bishop and Judith Curtis, in violation of Article 120, Uniform Code of Military Justice, 10 USC § 920, and for three assaults on Tracey Cooper and two assaults on Julie Jones, in violation of Article 128, UCMJ, 10 USC § 928. Peel pleaded not guilty to all charges and was acquitted of one assault on Ms. Cooper and another on Ms. Jones. However, he was convicted of all the other offenses and was sentenced to a dishonorable discharge, confinement for 8 years, total forfeitures, and reduction to the grade of airman basic.

Thereafter, in accordance with his staff judge advocate’s recommendation, the convening authority approved the sentence except for reducing the confinement to 7 years and 3 months. The Court of Military Review affirmed the findings and sentence in an unpublished opinion dated March 24, 1988, after rejecting several contentions advanced by appellant. At this level, we granted review to consider three issues raised by appellate defense counsel and four (IV-VII) specified by the Court:

I
WHETHER THE MILITARY JUDGE ERRED BY PERMITTING INTO EVIDENCE, OVER DEFENSE OBJECTION, APPELLANT’S STATEMENT TWO DAYS AFTER AN ALLEGED RAPE THAT HE WAS “GETTING KICKED OUT OF THE SERVICE” AS EVIDENCE TENDING TO PROVE THAT THE RAPE OCCURRED.
II
WHETHER APPELLANT WAS SUBSTANTIALLY PREJUDICED BY THE MILITARY JUDGE’S CONTINUAL RULINGS PERMITTING THE GOVERNMENT TO INTRODUCE EVIDENCE OF APPELLANT’S FORCE[237]*237FUL AND DOMINEERING PERSONALITY TO PROVE THE ALLEGED ASSAULTS AND RAPES.
III
WHETHER THE MILITARY JUDGE ERRED WHEN HE ALLOWED LT. COL TUTTLE, A CLINICAL SOCIAL WORKER, TO TESTIFY AS AN EXPERT CONCERNING A RAPE VICTIM’S BEHAVIOR SUBSEQUENT TO AN ALLEGED RAPE.
IV
WHETHER UNITED STATES V. GROS-TEFON, 12 MJ 431 (CMA 1982), AUTHORIZES A SUBMISSION TO A MILITARY APPELLATE COURT BY ANY PERSON OTHER THAN APPELLANT IN PROPER PERSON.
V
IF SO, UNDER WHAT CONDITIONS MUST A COURT OF MILITARY REVIEW ACCEPT SUCH A SUBMISSION?
VI
WHETHER, UNDER THE PARTICULAR CIRCUMSTANCES OF THIS CASE, WHERE INEFFECTIVE ASSISTANCE OF COUNSEL IS ALLEGED, A GENERAL POWER OF ATTORNEY GIVEN TO A NON-LAWYER MAY AUTHORIZE WAIVER OF THE ATTORNEY-CLIENT PRIVILEGE.
VII
WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL ERROR BY FAILING TO INSTRUCT ON REASONABLE MISTAKE.

I

Whether The Witness’ Statement That Appellant Said He Was “Getting Kicked Out” Of The Service Was Admissible,

Ms. Cooper testified about being assaulted by Peel on October 24 and 31, 1986, and on November 15, 1986. In reciting the circumstances that led up to the third assault, she explained that she had seen Peel at the Liberty Club and that he was in an angry mood at the time because she was there with some of her male friends. She then explained:

We went out into the lobby and we sat down, and he was just going on about something, and he said that he was — he had this white sweatshirt on with “Philadelphia” written on it — you know, that he was getting kicked out and that he was getting sent back to the States, getting kicked out of service. I don’t know what really—

At this point, defense counsel objected and requested an Article 39(a), UCMJ, 10 USC § 839(a), session. Trial counsel responded that there was no need for such a session because “[wje’ll move on very quickly from this. I just want to set the stage for what happened in the assault.” However, defense counsel persisted in the request; and so the military judge conducted an Article 39(a) session.

The defense contended that the testimony about Peel’s statement “that he was getting kicked out of the service” constituted inadmissible “bad person” evidence because its

only purpose ... [was] to cause the court members to believe that there was another basis or some basis, or for some reason [to] have something [planted] in their mind to say that he’s a bad person if he is in fact going to be kicked out of the United States Air Force either under Air Force Regulation 39-10 or for whatever reason.

Trial counsel then responded that the evidence was relevant because it showed appellant had realized that he was in trouble for raping Airman Curtis 2 days before. Thus, the remark by Peel showed his consciousness of guilt for committing the rape and tended to prove that he had, in fact, raped Airman Curtis.

Trial counsel conceded that at the time of the alleged statement to Ms. Cooper, Air[238]*238man Curtis had not yet reported the rape offense. However, trial counsel asserted that Peel had seen Airman Curtis earlier that evening before making the statement to Ms. Cooper, and it had been apparent to Peel that Airman Curtis was upset with him.

Trial counsel then promised the judge that it “will all be tied together” after Airman Curtis testified. The military judge ruled that, “[a]t this time, I will allow it, but I will be listening very closely for the tie-in. If I don’t see the tie-in, I’ll have to instruct the jury at a later time to disregard all references to that.” However, after Airman Curtis had testified later in the trial, there was no discussion of the statement that appellant had made to Ms. Cooper. The military judge never gave the promised instruction, and defense counsel did not object to his failure to do so.

Appellant contends that his statement to Ms. Cooper was not admissible to show consciousness of guilt, since it was never directly or indirectly related to the alleged rape of Airman Curtis. We agree. The record does not show that, when he made the comment to Ms. Cooper, he believed he was suspected of the rape. Indeed, 2 days had passed since he had been at Airman Curtis’ home where the alleged rape occurred; and so far as he knew, she had not yet reported the incident. See Wharton’s Criminal Evidence (hereafter Wharton) §§ 85-86 (C. Torda 14th ed. 1985). Furthermore, the remark was so ambiguous that it could hardly be construed to show his consciousness of guilt with respect to the rape. Cf. Wharton, supra § 149. See generally Mil.R.Evid. 401, Manual for Courts-Martial, United States, 1984 (defines “relevant evidence”), and 402.

Even though the testimony was inadmissible, we believe that its impact, if any, was minor. In the first place, the reference to this remark was incidental to Ms. Cooper’s testimony about the assault on her, and it occurred early in the trial. By the time Airman Curtis testified about the rape, even the lawyers and the judge apparently had forgotten about this testimony. Moreover, the very ambiguity of the statement makes it unlikely that the court members connected it in any way to the rape of Airman Curtis; and there was no reference to it by trial counsel in the final argument.

Furthermore, this testimony by Ms.

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Bluebook (online)
29 M.J. 235, 1989 CMA LEXIS 3577, 1989 WL 111601, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-peel-cma-1989.