United States v. Tovar

63 M.J. 637, 2006 CCA LEXIS 140, 2006 WL 1642838
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedJune 14, 2006
DocketNMCCA 200301584
StatusPublished

This text of 63 M.J. 637 (United States v. Tovar) is published on Counsel Stack Legal Research, covering Navy-Marine Corps Court of Criminal 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. Tovar, 63 M.J. 637, 2006 CCA LEXIS 140, 2006 WL 1642838 (N.M. 2006).

Opinion

VOLLENWEIDER, Judge:

A special court-martial composed of officer members convicted the appellant, contrary to his pleas, of indecent assault and indecent language, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. The appellant was sentenced to confinement for six months, forfeiture of $737.00 pay per month for six months, reduction to pay grade E-l, and a bad-conduct discharge. The convening authority approved the sentence as adjudged. As a matter of clemency, the convening authority deferred adjudged and automatic forfeitures prior to taking his action, then waived automatic forfeitures for six months and suspended adjudged forfeitures for the same period.

We have considered the record of trial, the appellant’s brief asserting three assignments of error,1 the Government’s answer, the appellant’s reply, and the outstanding oral argument by both counsel.2 We conclude that the findings and sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant was committed. See Arts. 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a) and 866(c).

Background

The appellant was convicted of using indecent language and committing an indecent assault upon the female attendant of the phone center at Camp Lejeune, North Carolina, on 28 April 2002. The victim contacted the police that same day to report the offenses. The following day, the appellant submitted to questioning by Special Agent Le-Sane of the Naval Criminal Investigative Service (NCIS), and ultimately signed a sworn statement regarding the incident. In that statement, the appellant admitted using indecent language, rubbing his hand against the victim’s breast, hugging her, and positioning himself with his groin against her buttocks while he may have been in an aroused state.

Trial was held on 18 June 2002 (arraignment) and 16-18 October 2002. The appellant did not testify at trial. The appellant was represented at trial by civilian defense counsel, Richard McNeil. Mr. McNeil is an experienced attorney, a retired Marine Corps judge advocate with twenty-five years of military law experience. Record at 48, 303. He is also a former judge. Id. at 377. In his opening statement, Mr. McNeil addressed the statement given by the appellant to Special Agent LeSane. He described the inter[635]*635view process wherein the appellant initially talked to the agent about being in the phone center to make a call. Then he described the agent pulling out a videotape and telling the appellant that the incident was on tape. The remainder of Mr. McNeil’s opening statement was essentially an argument that once the appellant was shown the tape, he told the truth, that his subsequent sworn statement3 was a truthful recitation of what actually took place, and that what took place was simply the result of bad judgment, not a crime. Id. at 137-41.

In closing, Mr. McNeil returned to the theme he began in his opening:

But when you place that videotape on the table, Sergeant Tovar realized that he had to be a little more forthright. He had to be more candid about what actually transpired in there.
... We believe that statement is accurate and it’s correct. That he basically stated out the facts of what transpired. And if you read his statement, and you believe it, you must acquit him.

Id. at 303. Mr. McNeil also argued:

[Trial counsel] asked the special agent, How reliable is this technique? And he said, Very reliable. And then there’s another question, and the special agent said that he believed it worked here. So what, again, does that tell you? That tells you it’s a reliable technique. Plus, common sense tells us it’s a reliable technique.

Id. at 304 (emphasis added). Mr. McNeil continued his theme of the case in his closing:

The special agent signed it after Sergeant Tovar signed it. That implies to most of us that were in this courtroom, that the special agent believed that that was an honest assessment on behalf of Sergeant Tovar. Because if he didn’t, the special agent, after 11 of (sic) 12 years of experience, and almost 1000 interrogations, would have said, we have to ask you more questions. We have to go a little further. But they did not.

Id. at 304 (emphasis added). Mr. McNeil continued this theme throughout his closing argument.

The appellant’s statement to NCIS was admitted into evidence, without objection, prior to opening statements. The appellant himself never testified at trial on the merits. Special Agent LeSane testified on direct concerning his interrogation of the appellant. He described the appellant’s demeanor and the interrogation itself, essentially following Mr. McNeil’s opening statement outline. After describing how the appellant gave his first version of events, the special agent stated the following:

A. ... And at that time, I determined deception.
Q. Why did you think that?
A. Because I—during my experience as a law enforcement officers [sic], 11 years, an innocent person would give you the whole account of it. He wouldn’t just leave out a couple of important issues like, Did (sic) you touch her breasts, or, Did (sic) you touch her butt?

Record at 220-21. No objection was made by the appellant.

Special Agent LeSane explained how he then pulled out a videotape (which was actually blank) and told the appellant that he had the incident on tape. The appellant’s demeanor changed; he asked for a smoke break, which was granted. The appellant came back in and said: ‘Well, let me tell you what happened.” He then proceeded to tell Special Agent LeSane a more complete version of events that now included his grabbing the victim’s breast and buttocks. Id. at 221. Again, there was no objection to this testimony. The appellant’s fuller version of events was put into a typed statement that he swore to and signed. Id. at 222.

On cross-examination, Mr. McNeil returned to the deception theme:

Q. And prior to [pulling out the videotape], you were concerned about some of the information he’d given you. Correct?
A. Yes, sir.
Q. You thought he was being deceptive?
A. Yes, sir.
[636]*636Q. Or maybe not being totally candid. I mean, he admitted he was there with the young lady. Correct?
A. Yes, he admitted he was there.

Id. at 235.

Mr. McNeil’s final question to Special Agent LeSane was:

Q. And at the end of this process, you were satisfied with this statement. Correct?
A. Yes, sir, for the time.

Id. at 238.

“Human Lie Detector” Testimony

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Bluebook (online)
63 M.J. 637, 2006 CCA LEXIS 140, 2006 WL 1642838, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-tovar-nmcca-2006.