United States v. Warner

59 M.J. 573, 2003 CCA LEXIS 233, 2003 WL 22271463
CourtUnited States Air Force Court of Criminal Appeals
DecidedSeptember 8, 2003
DocketACM 34716
StatusPublished
Cited by5 cases

This text of 59 M.J. 573 (United States v. Warner) is published on Counsel Stack Legal Research, covering United States Air Force 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. Warner, 59 M.J. 573, 2003 CCA LEXIS 233, 2003 WL 22271463 (afcca 2003).

Opinion

OPINION OF THE COURT

STONE, Judge:

The appellant was charged with two specifications of aggravated assault on his infant son in violation of Article 128, UCMJ, 10 U.S.C. § 928. At a general court-martial composed of officer and enlisted members, the appellant was found guilty of the lesser-included offense of assault and battery as to the first specification and was acquitted on the second specification. The adjudged and [575]*575approved sentence included a bad-conduct discharge, confinement for 18 months, forfeiture of all pay and allowances, and reduction to the grade of E-l.

The appellant contends: (1) The expert consultant appointed by the convening authority was incompetent, and the military judge improperly denied a defense request for a civilian expert consultant; (2) The trial counsel was improperly involved in the selection of the defense’s expert consultant; (3) The military judge erred in admitting testimony about the baby’s injuries as aggravation evidence and instructing the members they could consider it; and (4) The military judge erred in sustaining an objection to trial defense counsel’s sentencing argument. For the reasons set forth below, we affirm.

I. Factual Background

The appellant’s son (BT) was born six weeks premature on 6 June 2000. On the morning of 22 August 2000, the appellant was at home preparing for an appointment with his commander for nonjudicial punishment proceedings pursuant to Article 15, UCMJ, 10 U.S.C. § 815. Because of the importance of the meeting with his commander, he was focused on meeting military grooming and appearance standards and was ironing his battle-dress uniform on some towels in the family’s on-base home. His wife JT1 agreed to go into town and borrow five dollars from her mother so the appellant could get a hair cut prior to his appointment. JT departed the house at approximately 1000 and returned about an hour later. BT was at home alone with the appellant during his wife’s absence.

Upon her return, JT encountered her husband holding BT in his arms. The baby was crying but not producing any tears, and the baby’s arms and legs were “slumped over.” JT asked her husband what happened. He explained to her he was holding BT in his left arm with the baby’s head facing him while he ironed with his right. He said that while holding BT in this manner, the baby “sprung” from his chest. He said he was able to catch BT mid-waist before he hit the ground. He also told his wife he had already called the emergency room and was advised by the medical staff to watch BT and contact them if BT showed signs of worsening.

JT was still concerned, however, because BT was “breathing strange and there were no tears coming out of his eyes and he was real pale looking.” She called St. Luke’s Hospital where her son had been born two and one-half months earlier. The hospital’s records reflect she made the call at 1112. As she was talking, the appellant interrupted JT. He told his wife that BT’s heartbeat had stopped at a certain point prior to his wife’s return. This news caused JT to become enormously upset. After calming down and informing the hospital staff member of this new information, she agreed to bring the baby to the nearest emergency room, which happened to be the on-base medical facility. The appellant resisted the idea of going, but after arguing with his wife about it for 15 minutes, he agreed to go.

Before heading to the hospital, JT began changing BT’s clothes and diaper. As she started to change BT, the appellant interjected by saying, “before you take the jammies off, you are going to see something, and don’t freak out when you see it____ There are bruises up and down [BT’s] side. Don’t freak out when you see them.” He told his wife that he did not realize he had bruised BT that badly when he caught him. JT testified that BT’s body had two sets of bruises at this point in time. The first set of bruises included thumb marks on BT’s back and finger marks on the front of his abdomen. This set of bruises was wider and longer than her own fingers. The second set appeared to be palm prints between BT’s shoulder blades.

At the on-base emergency room, the appellant repeated his explanation as to how the bruises occurred. Health care providers examined BT and concluded the baby’s condition simply warranted at-home observation. JT was not satisfied with this medical advice, and at one point she asked whether BT’s [576]*576injuries and symptoms were consistent with the appellant’s description of dropping the baby while ironing and catching him mid-air. She was advised it was possible, but JT still insisted on getting a second opinion at the hospital where BT was born. She was unsuccessful in getting a referral.

Six days later on 28 August 2000, JT took the baby to a routine checkup at the on-base medical facility. The examining physician expressed some concerns about the child’s appearance and ordered additional testing for the next day in Boise. The appellant accompanied his wife and son to this appointment in Boise. The tests revealed BT had spots of bleeding on his brain, and the child was admitted for further evaluation. When JT told the appellant his son was being admitted into the hospital for bleeding on the brain, he repeatedly said, “This is fucking bullshit.”

Agents from the Air Force Office of Special Investigations came to the Boise hospital and interviewed the appellant. He provided verbal and written statements about the events of 22 August. He told the agents he had felt stressed out over his meeting with his commander. While his wife was gone, BT was sitting in a chair on the floor and started to cry. He admitted he went over to the chair and “quite aggressively” pulled BT out of the chair by his mid-section and brought him to his shoulder. He told the agents the baby’s chin hit his shoulder, causing the baby’s head to tilt back. He described the baby’s reaction as “surprised.” He said he then changed BT’s clothes and diaper, but did not notice any bruising. He told agents he then went back to unplug the iron and was holding BT on his left forearm face down when BT kicked off his chest and started to fall. The appellant said he dropped the iron and caught BT about the abdomen. In his written statement, the appellant concluded that his “actions in pulling [the baby] aggressively against my chest is [sic] probably the reason he sustained the bruising inside his head” and “what gave him the bruises on his abdominfsic].” He specifically denied shaking BT.

The appellant told his wife a similar version of events that evening in their bedroom. He got on his knees and said, “I have not been completely honest with you.” He went on to describe how BT was in his “bouncy chair” and crying and there came a point when he “couldn’t take the crying no more. So I took him in one big swipe to my shoulder.” He said that this grabbing motion was in addition to catching BT in mid-air when BT “sprung” from his arms.

The appellant made an additional statement to a co-worker in the fall of 2000. The co-worker noticed that the appellant appeared to have a lot on his mind, so he asked the appellant if there was anything that he wanted to talk about. The appellant told him that his son had injuries consistent with shaking a baby.

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Related

United States v. Warner
62 M.J. 114 (Court of Appeals for the Armed Forces, 2005)
United States v. Dearing
60 M.J. 892 (Navy-Marine Corps Court of Criminal Appeals, 2005)
United States v. Kreutzer
59 M.J. 773 (Army Court of Criminal Appeals, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
59 M.J. 573, 2003 CCA LEXIS 233, 2003 WL 22271463, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-warner-afcca-2003.