United States v. Staley

36 M.J. 896, 1993 CMR LEXIS 82, 1993 WL 51471
CourtU S Air Force Court of Military Review
DecidedJanuary 28, 1993
DocketACM 29485
StatusPublished

This text of 36 M.J. 896 (United States v. Staley) is published on Counsel Stack Legal Research, covering U S Air Force 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. Staley, 36 M.J. 896, 1993 CMR LEXIS 82, 1993 WL 51471 (usafctmilrev 1993).

Opinion

OPINION OF THE COURT

JOHNSON, Judge:

Sergeant Staley was convicted of four [897]*897indecent assaults.1 He assigns as error two evidentiary rulings by the military judge. We find no prejudicial error and affirm.

The evidence against appellant consisted primarily of the testimony of three members of appellant’s squadron, each of whom described incidents when the witness awoke to discover appellant touching his buttocks or penis. The first victim was an airman who lived two rooms away from appellant in the barracks. Three assaults on the second victim, appellant’s roommate, occurred within a 2-day period. The assault on the third victim happened in a tent on Diego Garcia, an island in the British Indian Ocean Territory, where a portion of appellant’s unit had deployed during the Persian Gulf conflict.

Appellant denied any recollection of these incidents. His defense at trial was that he lacked mental responsibility. The foundation for this defense was the testimony of a psychologist who testified appellant suffered from a disassociative disorder stemming from sexual abuse in childhood, as a result of which appellant acted out his sexual conflicts in a dream-like state during which he was unaware of his actions. The prosecution vigorously attacked the foundation for the psychologist’s opinion. The military judge properly instructed the members on mental responsibility and the burden of proof. The findings of guilty indicate the members found appellant to have been mentally responsible.

DEFENSE MOTION IN LIMINE

Appellant assigns as error that the military judge denied a defense motion in limine to exclude the testimony of two of the victims under R.C.M. 914, which, like Fed.R.Crim.P. 26.2, incorporates the Jencks Act.2 R.C.M. 914 generally provides that after a witness other than the accused has testified upon direct examination, the military judge, on motion of a party who did not call the witness, shall order the party who called the witness to give the moving party any statement in its possession that relates to the testimony given by the witness.

The prior statements sought by the defense consisted of the testimony of the two witnesses before an administrative discharge board.3 Appellant’s commander had imposed nonjudicial punishment upon him under Article 15, UCMJ, for indecent assault on these two victims. The commander then recommended administrative discharge for sexual perversion. The two victims testified before a board of officers, which found appellant did not commit the acts charged and recommended he be retained in the service. The commander then set aside the Article 15 punishment. As prescribed by the applicable regulations for board hearings in which retention results, only a summary record was prepared (not containing transcripts or summaries of the testimony), and the reporter’s tapes were destroyed 3 months later.4 Written statements of the two victims were retained and provided to the defense, but no recordings or transcripts existed of their testimony before the administrative discharge board.

The military judge found the statements in question to be within the general mandate of R.C.M. 914, but he further found they were destroyed in good faith, in full compliance with normal administrative procedures and before appellant’s assault on a third victim raised the prospect of further prosecution. The military judge also found the defense had been provided written [898]*898statements from each of the relevant witnesses and had the benefit of the general recollections of appellant’s original counsel concerning the weaknesses of their testimony.5 On this basis he found there was insufficient risk of prejudice to warrant excluding the witnesses’ testimony.

We will disturb a military judge’s ruling under the Jencks Act and R.C.M. 914 only if it was clearly erroneous. United States v. Barber, 20 M.J. 678, 680 (A.F.C.M.R.1985), pet. denied, 21 M.J. 386 (C.M.A.1985), citing United States v. Mechanic, 454 F.2d 849 (8th Cir.1971), cert. denied, 406 U.S. 929, 92 S.Ct. 1765, 32 L.Ed.2d 131 (1972). We find no error in the military judge’s ruling in this case. The Supreme Court and the Court of Military Appeals have indicated that good faith loss or destruction of Jencks Act material may not require the sanction of exclusion of the testimony of the witness whose prior statement is in issue. United States v. Marsh, 21 M.J. 445, 451 (C.M.A.1986), citing United States v. Augenblick, 393 U.S. 348, 355-56, 89 S.Ct. 528, 533-34, 21 L.Ed.2d 537 (1969).

We further find there was no significant risk of prejudice to appellant. The defense strategy at trial was not to contest the facts, but to claim a lack of mental responsibility. The defense mounted no attack on the credibility of any of the prosecution witnesses. Its cross-examination of them was limited to eliciting more detail on matters that might support its theory of lack of mental responsibility. There was no contest as to the identity of the assailant, the nature of the acts that occurred, the absence of any motive to fabricate on the part of the witnesses, or the victims’ ability to recall the circumstances. The purpose of the Jencks Act and R.C.M. 914 is to ensure an adverse party has access to material that may impeach a witness. United States v. Douglas, 32 M.J. 694, 698 (A.F.C.M.R.1991). The defense had no apparent interest in impeaching the witnesses to whom this motion related. In these circumstances, we find no possible prejudice from the military judge’s denial of the defense motion to exclude their testimony under R.C.M. 914. No relief would be warranted even if he erred. Article 59(a), UCMJ.

PROSECUTION MOTION IN LIMINE

Appellant also assigns as error that the military judge granted a motion in limine by the trial counsel to exclude any reference to the administrative discharge board that had found appellant had not committed acts of sexual perversion on the first two victims. The defense counsel indicated the only purpose for which he intended to offer the discharge board results was to serve as part of the foundation for the psychologist’s testimony that appellant suffered from a disassociative disorder. The trial counsel objected on the basis that the admission of the board’s findings of fact that appellant did not commit three of the four acts of misconduct now alleged in his court-martial would confuse the members, and that the danger of confusing the members outweighed the probative value of the testimony.

The military judge held a session without the members present6 to hear the testimony of the psychologist as to how the results of the board hearing served as part of the foundation for his opinion.' The psychologist testified the discharge board’s exoneration of appellant supported his opinion that appellant suffered from a disassociative disorder because it tended to ratify appellant’s subconscious rationalization that he had done nothing wrong.

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Related

United States v. Augenblick
393 U.S. 348 (Supreme Court, 1969)
United States v. Snelling
14 M.J. 267 (United States Court of Military Appeals, 1982)
United States v. Barber
20 M.J. 678 (U S Air Force Court of Military Review, 1985)
United States v. Marsh
21 M.J. 445 (United States Court of Military Appeals, 1986)
United States v. Neeley
25 M.J. 105 (United States Court of Military Appeals, 1987)
United States v. Jenkins
27 M.J. 209 (United States Court of Military Appeals, 1988)
United States v. Cole
29 M.J. 873 (U S Air Force Court of Military Review, 1989)
United States v. Cole
31 M.J. 270 (United States Court of Military Appeals, 1990)
United States v. Douglas
32 M.J. 694 (U S Air Force Court of Military Review, 1991)
United States v. Branoff
34 M.J. 612 (U S Air Force Court of Military Review, 1992)
Greene v. South Dakota
406 U.S. 929 (Supreme Court, 1972)

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Bluebook (online)
36 M.J. 896, 1993 CMR LEXIS 82, 1993 WL 51471, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-staley-usafctmilrev-1993.