United States v. Weisbeck

48 M.J. 570, 1998 CCA LEXIS 162, 1998 WL 139571
CourtArmy Court of Criminal Appeals
DecidedMarch 27, 1998
DocketARMY 9502215
StatusPublished
Cited by4 cases

This text of 48 M.J. 570 (United States v. Weisbeck) is published on Counsel Stack Legal Research, covering Army 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. Weisbeck, 48 M.J. 570, 1998 CCA LEXIS 162, 1998 WL 139571 (acca 1998).

Opinion

OPINION OF THE COURT

CARTER, Judge:

A general court-martial composed of officer members convicted appellant, contrary to his pleas, of indecent acts with a child (Specifications 1 and 2), indecent assault (Specifications 3 and 4), showing pornographic materials and offering alcoholic beverages to minor boys (Specification 5), and indecent language (Specifications 6 and 7) in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934 (1988) [hereinafter UCMJ].1 The court sentenced appellant to a dishonorable discharge, confinement for twenty-five years, and forfeiture of all pay and allowances. The approved sentence consists of a dishonorable discharge, confinement for ten years, and forfeiture of all pay and allowances. The case is before the court for automatic review under Article 66, UCMJ.

Appellant raised thirteen assignments of error2 (AE), several of which have merit. During our review, the court found several [572]*572other errors not raised by appellant which also warrant relief. For the reasons stated in our opinion, we will set aside and dismiss five of the seven specifications and reassess the sentence.

Facts

Appellant was tried in 1995 at Fort Ruck-er, Alabama, on charges alleging sexual offenses against two teenage brothers [hereinafter the T brothers]. The trial defense counsel filed a motion in limine asking the military judge “not to allow any evidence, testimony, or other methods of presentment of the accused’s prior trial by courts-martial in 1994 at Fort Devens, MA.” In 1994 at Fort Devens, Massachusetts, appellant was acquitted by a general court-martial of sexu[573]*573ally assaulting two teenage brothers [hereinafter the P brothers]. The Fort Devens allegations were similar, but not identical, to the allegations in this case. On 3 October 1995, the military judge in this ease deferred ruling on the motion in limine but stated that, based on the proffers of proof, he was inclined to admit the testimony of the P brothers under Military Rule of Evidence 404(b) [hereinafter Mil.R.Evid.]. He directed the trial counsel to instruct the P brothers that if they testified they were not to mention the Fort Devens court-martial. The military judge concluded, “before actually admitting the testimony of [the P brothers], I am going to have a[n Article] 39(a) [UCMJ] session at some point during the actual trial so that I [can] at least preliminarily assess their testimony.” The trial defense counsel then requested a delay in the trial date from 5 October 1995 to 16 November 1995. The military judge granted a delay until 12 October 1995.

Between 3 and 5 October 1995, appellant retained the same civilian defense counsel who represented him at the Fort Devens trial. The military judge received notification of the additional defense counsel prior to 12 October 1995 and rescheduled the trial to 29 November 1995. On 20 October 1995, the civilian defense counsel contacted Dr. Edwin J. Mikkelsen regarding his appearing as an expert witness. Dr. Mikkelsen, an associate professor in the Department of Psychiatry at Harvard Medical School, testified at the Fort Devens trial as an expert in false sexual abuse allegations by adolescents. At a telephonic Rule for Courts-Martial 802 session [hereinafter R.C.M.] on 20 November 1995, the defense asked for an indefinite delay because Dr. Mikkelsen could not appear on 29 November 1995 due to a scheduling conflict. The defense never requested the government to produce Dr. Mikkelsen as a witness pursuant to R.C.M. 703(c)(2). The trial counsel indicated a willingness to obtain Dr. Mikkelsen’s testimony by video teleconference, but Dr. Mikkelsen was unable to participate. The military judge denied the request for a delay. The civilian defense counsel renewed this motion on 29 November 1995 and asked for a delay until 11 January 1996. The military judge again denied the request for a delay.

During voir dire on 29 November 1995, the military defense counsel unexpectedly and inexplicably told the members that appellant had been previously acquitted in an earlier court-martial of similar allegations. Both the military defense counsel and the civilian defense counsel made opening statements immediately after the government’s opening statement. The military defense counsel told the members that to understand the charges against appellant, “you must understand what happened at Fort Devens, Massachusetts a year and a half to two years ago, the trial and the events that led up to it. They are interrelated.” The civilian defense counsel then told the members in detail about the Fort Devens allegations and trial. The trial counsel objected to the civilian defense counsel’s opening statement, reminding the military judge that he had not yet ruled on the admissibility of this evidence. The judge overruled the objection, telling the members that if he decided not to admit this evidence then they should disregard this opening statement by the civilian defense counsel.

During the government’s ease on the merits, the defense tried to establish that the older T brother discovered the Fort Devens record of trial in appellant’s home and used that information to fabricate the current charges because appellant refused to give the older T brother sixty dollars to rebuild a carburetor on the boy’s truck.

At an Article 39(a), UCMJ, hearing near the end of the government’s case, after the T brothers’ testimony but prior to the P brothers’ testimony, the trial counsel stated that their case had shown the similarities between the charges raised by the T brothers and the prior allegations by the P brothers. The trial counsel asked the military judge to make a ruling on the defense motion in li-mine concerning the testimony of the P brothers. The military judge responded:

MJ: I am intending to, based on what I’ve heard here. I believe, in fact, that it is the defense’s defense — those two boys— to be very honest with you. I believe that is then’ entire defense, and I believe the record of trial in the previous case is, in [574]*574fact, the defense’s defense. I have sat here and observed the two witnesses yesterday and, in particular, that appears to me to be the entire strategy of the defense. And it appears to me that, in fact, while the defense has objected to it, it is clear that it is in their interest to have this admitted.
ATC: Thank you, Your Honor.
MJ: Is there anything additional to be taken up?
TC: Did the defense want to be heard on that at all?
MJ: They’ve already been heard counsel. I’ve heard ample argument from both sides on whether the law allows it or doesn’t allow it.

Neither defense counsel said, or attempted to say, a single word during the military judge’s ruling and subsequent exchange with the trial counsel.

Uncharged Misconduct Raised by the P Brothers (AE III)

Absent plain error, a party must make a specific and timely objection to preserve an alleged error on appeal. Mil. R.Evid. 103; United States v. Young, 470 U.S. 1, 16, 105 S.Ct. 1038, 1046-47, 84 L.Ed.2d 1 (1985); United States v. Rynning, 47 M.J. 420, 421 (1998). A plain error is one that materially prejudices the substantial rights of the accused. UCMJ art.

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Related

United States v. Dewrell
52 M.J. 601 (Air Force Court of Criminal Appeals, 1999)
United States v. Weisbeck
50 M.J. 461 (Court of Appeals for the Armed Forces, 1999)
United States v. Young
50 M.J. 717 (Army Court of Criminal Appeals, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
48 M.J. 570, 1998 CCA LEXIS 162, 1998 WL 139571, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-weisbeck-acca-1998.