United States v. Schlamer

52 M.J. 80, 1999 CAAF LEXIS 1270
CourtCourt of Appeals for the Armed Forces
DecidedSeptember 30, 1999
Docket98-0301/MC
StatusPublished
Cited by53 cases

This text of 52 M.J. 80 (United States v. Schlamer) 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. Schlamer, 52 M.J. 80, 1999 CAAF LEXIS 1270 (Ark. 1999).

Opinions

Judge GIERKE

delivered the opinion of the Court.

A general court-martial composed of officer and enlisted members convicted appellant, contrary to his pleas, of violating a general order by possessing prohibited weapons; premeditated murder; aggravated assault; and unlawful entry, in violation of Articles 92, 118, 128, and 134, Uniform Code of Military Justice, 10 USC §§ 892, 918, 928, and 934, respectively. Although the case was referred as capital, the conviction of premeditated murder was not unanimous, thus precluding imposition of the death penalty. See RCM 1004(a)(2), Manual for Courts-Martial, United States (1998 edition).1 The adjudged and approved sentence provides for a dishonorable discharge, confinement for life, total forfeitures, and reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed the findings and sentence. 47 MJ 670 (1997).

This Court granted review of the following issues:

I

WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL ERROR BY REFUSING TO ALLOW A QUESTION ON CROSS-EXAMINATION OF A GOVERNMENT EXPERT SEROLOGIST REGARDING ONE OF HIS COLLEAGUE’S OPINION ON HAIR-COMPARISON ANALYSIS.

II

WHETHER THE MILITARY JUDGE ERRED IN ALLOWING THE TRIAL COUNSEL TO ELICIT THE OPINION OF A NAVAL CRIMINAL INVESTIGATIVE SERVICE SPECIAL AGENT REGARDING THE TRUTHFULNESS OF APPELLANT’S SWORN STATEMENT.

III

WHETHER THE MILITARY JUDGE ERRED BY DENYING TRIAL DEFENSE COUNSEL’S CHALLENGE FOR CAUSE AGAINST [STAFF SERGEANT] B AND BY GRANTING THE GOVERNMENT’S CHALLENGE TO [FIRST LIEUTENANT] H OVER DEFENSE OBJECTION.

IV

WHETHER THE MILITARY JUDGE ERRED WHEN HE ALLOWED INTO EVIDENCE A POEM WRITTEN BY APPELLANT AND TESTIMONY REFERRING TO MAGAZINE PHOTOGRAPHS IN APPELLANT’S ROOM.

For the reasons set out below, we affirm.

General Factual Background

Lance Corporal (LCpl) BG was murdered in her barracks room some time after midnight on October 16, 1993. She had been strangled and battered, and her throat had been cut all the way to her backbone.

Agents of the Naval Criminal Investigative Service (NCIS) interviewed appellant, along with numerous other witnesses and possible suspects, because he had been reported knocking on doors in the women’s barracks around 2:00 on the morning of the murder. After waiving his rights under Article 31, UCMJ, 10 USC § 831, and being interrogated for about 2 hours, appellant admitted that he entered BG’s room in search of a sexual liaison, strangled her, knocked her head against the floor and left the room, leaving BG unconscious on the floor. Concerned about being in trouble as soon as BG regained consciousness, appellant returned to his room, obtained a knife, and cut her throat several times, stopping only after he “felt something hard.”

Appellant signed and swore to his written confession, consented to a search of his room and his car, and provided hair and fluid samples. Shortly thereafter, appellant re[84]*84peated his confession in detail and, using an NCIS agent as a “dummy,” demonstrated how he choked and battered BG and cut her throat.

Appellant’s confession was corroborated by physical and testimonial evidence. The NCIS found small droplets of blood, consistent with BG’s but not with appellant’s, on appellant’s shoes. They found two hairs that were “consistent with” appellant’s on a chair near BG’s body. They found a bloodstain on appellant’s sweatshirt, but they could not determine if it was human or animal blood. In appellant’s car the NCIS found a knife that tested “presumptively positive” for blood. They found BG’s shirt in a nearby dumpster, where appellant said he threw it after he cut it off her body. Finally, the confession was corroborated by a witness from an adjoining room, who testified that he heard a muffled scream and several thuds at about 2:30 a.m. 47 MJ at 673-74.

Issue I: Cross-examination of Serologist

Facts

Chief Warrant Officer 4 (CW04) Werner, a forensic serologist from the United States Army Criminal Investigation laboratory, Fort Gillem, Georgia, testified about two hairs found on a chair next to BG’s body that were “consistent with” appellant’s. On cross-examination, defense counsel attempted to ask CW04 Werner if he agreed with the opinion of Michael Odell, a fellow forensic serologist at the laboratory. In an unrelated court-martial, Mr. Odell had testified that “hair is not a very definitive piece of evidence.” The military judge sustained the Government’s objection to the question. He told defense counsel: ‘You can ask him what his opinion is but not ask him his opinion of somebody else just in an effort to get in that other person’s opinion in to court.”

Discussion

Appellant asserts that the purpose of the question was to test CW04 Werner’s opinion regarding the scientific reliability of hair-comparison evidence. The Government asserts that Mr. Odell’s testimony in an unrelated court-martial was inadmissible hearsay.

We review the military judge’s ruling on admissibility of evidence for “clear abuse of discretion.” United States v. Johnson, 46 MJ 8, 10 (1997). A military judge has broad discretion to prevent a party from smuggling inadmissible hearsay into the case under the guise of testing the basis for expert testimony. See United States v. Stark, 24 MJ 381, 384-85 (CMA 1987), cert. denied, 484 U.S. 1026, 108 S.Ct. 750, 98 L.Ed.2d 763 (1988). In this case, the military judge did not inhibit appellant’s ability to test the basis for CW04 Werner’s testimony by cross-examination, reference to treatises, periodicals or other writings under Mil.R.Evid. 803(18), Manual, swpra, or by calling other experts, including Mr. Odell, to point out the weaknesses and limitations of hair analysis. We hold that the military judge did not abuse his discretion.

Issue II: Testimony about Truthfulness of the Confession

The defense theory was that appellant’s purported confession was unreliable. This theory was announced in the defense opening statement. It was developed during the defense cross-examination of Special Agent (SA) Young, who obtained a written statement from appellant. It was supported by expert testimony from two Navy psychiatrists, who testified that appellant had “extremely low self-esteem,” that he was “suffering from an alcohol-induced blackout on the night” of the murder, and that “he could not possibly have remembered all the details” set out in his confession. They opined that “appellant simply adopted the facts” suggested by the NCIS agents, a process known as “suggestibility” or “confabulation.” 47 MJ at 674. Finally, the defense theory of confabulation was argued at length in the defense closing argument.

The granted issue arises from the cross-examination and redirect examination of SA Young. Defense counsel extensively cross-examined SA Young about interrogation techniques, the psychological pressures exerted on persons being interrogated, and the [85]*85inhibiting circumstances inherent in any interrogation. He questioned SA Young extensively about his failure to make a videotape or audiotape of appellant’s interrogation and about his failure to include certain facts contained in the interview notes in appellant’s written confession.

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Cite This Page — Counsel Stack

Bluebook (online)
52 M.J. 80, 1999 CAAF LEXIS 1270, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-schlamer-armfor-1999.