United States v. Williams

26 M.J. 487, 1988 CMA LEXIS 2603, 1988 WL 94293
CourtUnited States Court of Military Appeals
DecidedSeptember 28, 1988
DocketNo. 57,401; CM 448278
StatusPublished
Cited by6 cases

This text of 26 M.J. 487 (United States v. Williams) is published on Counsel Stack Legal Research, covering United States Court of Military 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. Williams, 26 M.J. 487, 1988 CMA LEXIS 2603, 1988 WL 94293 (cma 1988).

Opinion

Opinion of the Court

SULLIVAN, Judge:

In 1985, appellant was tried by a general court-martial composed of a military judge and officer members at Fort Lewis, Washington. Contrary to his pleas, he was found guilty of the rape of his 6-year-old step-daughter, in violation of Article 120, Uniform Code of Military Justice, 10 USC § 920. He was sentenced to a dishonorable discharge, confinement for 7 years, and reduction' to E-l. The convening authority approved the sentence. The Court of Military Review affirmed a finding of guilty of attempted rape under Article 80, UCMJ, 10 USC § 880, and reassessed his sentence, reducing the period of confinement to 5 years. 23 M.J. 792 (1987).

This Court granted review on the following questions of law:

I
WHETHER THE MILITARY JUDGE ERRED BY ALLOWING A DEFENSE WITNESS TO TESTIFY, OVER DEFENSE COUNSEL’S OBJECTION, ABOUT THE VICTIM’S CHARACTER FOR TRUTHFULNESS.
II
WHETHER THE MILITARY JUDGE ERRED WHEN HE SUSTAINED TRIAL COUNSEL’S HEARSAY OBJECTION TO A DEFENSE WITNESS’ TESTIMONY ABOUT HER OWN BLOOD TYPE.

We hold that the military judge did err in allowing this witness to testify about the victim’s truthfulness. See generally United States v. Azure, 801 F.2d 336, 341 (8th Cir.1986). However, we conclude that this error was harmless. Art. 59(a), UCMJ, 10 USC § 859(a). In addition, we hold that under the circumstances of this case, the judge did not err in rejecting as inadmissible hearsay the defense witness’ testimony concerning her blood type. Mil.R.Evid. 103, Manual for Courts-Martial, United States, 1984.

The facts of this case are generally outlined in the Government’s final brief, as follows:

Mrs. Marian Williams, appellant’s wife and the mother of the female victim Sharice Bryant, testified that appellant was Sharice’s step-father. On the evening of 3 May 1985, Mrs. Williams had taken her son (by appellant) and Sharice out shopping, returned home, bathed the children, and dressed Sharice. Mrs. Williams then told Sharice and her brother to play upstairs while she watched television. Her husband had gone to a baseball game earlier that day and had returned home “heavily intoxicated,” according to Mrs. Williams.
While Mrs. Williams was watching a television program, she heard coins being thrown down the stairs, so she told the children to be quiet. At that time her husband was also upstairs. Sometime later Sharice came down the stairs crying; after initially stating that she couldn’t tell her mother what was wrong, Sharice said that appellant had “tried to put his thing in her.”
The victim, Sharice Bryant, age seven, testified that she remembered the night when she and appellant were upstairs in the bedroom while her mother was downstairs watching television. She and her brother had gone to her parent’s bedroom to play. Appellant was on the bed taking a nap. After she and her brother started playing, appellant took something and threw it down the stairs (she testified that it sounded like a coin), and told her brother to go fetch it. Her brother went downstairs, leaving Sharice alone with appellant on the bed. Sharice testified that her father then “took his thing out,” and she pointed at counsel’s crotch when asked where her step-father’s “thing” was located. She described it as looking like a finger. Appellant began removing her clothes, pull[489]*489ing her pants and panties down and fully off of one leg. Appellant then rubbed his “thing” on her crotch area, not where she went pee-wee but “where it’s covered at.” Sharice testified that it felt bad because appellant “pushed it too hard.” The victim stated that appellant also put his finger in her which hurt too.
Chief Warrant Officer Two (CW2) Phillip R. Mills, a forensic chemist from the U.S. Army Criminal Investigations Laboratory, Fort Gordon, Georgia, was qualified by the court as an expert in the field of serology (the science dealing with the properties and actions of blood), and testified that he had tested a sample of Sharice’s saliva, appellant’s blood, and swabs of fluid obtained from appellant’s hand and penis. The samples pertaining to appellant had been obtained on 4 May 1985. Sharice’s saliva established that she had Type A blood, and the secretions on appellant’s hand and penis tested positive for Type A blood. SGT Williams’ blood was determined to be Type O. CW2 Mills also testified that he found no evidence of appellant’s semen in Sharice’s vagina.
Appellant testified at trial that he had not rubbed his penis on, nor attempted to insert it into, Sharice’s vagina. He explained the presence of vaginal secretions on his penis by admitting to having extra-marital sex with two different women (Ms. Mary Wisely and Ms. Sherry Barron) shortly before and shortly after the alleged rape. He testified that he inserted his fingers into the vaginas of both women. Both Ms. Wisely and Ms. Barron corroborated appellant’s testimony as to their sexual relations with him on 2 and 3 May, respectively. Ms. Wisely attempted to testify as to her blood type (A positive), but the military judge sustained trial counsel’s hearsay objection to the testimony and instructed the court members to disregard it. Appellant averred that he had not bathed after having intercourse with the women, stating that he often went three or four days without a shower. Appellant admitted making a prior inconsistent statement to military police authorities (i.e., that he had been awakened by his wife and not Sharice and his son on the evening of the rape). Appellant also acknowledged that he had lied to a criminal investigation agent concerning his alleged sexual intercourse with Ms. Barron on 4 May. Instead of describing his activities with Ms. Barron, he apparently fabricated a story about going to a night club. Appellant explained his prevarication as an attempt to not involve Ms. Barron.

(Record citations omitted.)

Additional facts necessary for our review are also stated in the defense’s final brief, as follows:

Sergeant Phyllistine Williams, a lawyer’s assistant in the Trial Defense Service Office at Fort Lewis, Washington, testified as a defense witness concerning prior inconsistent statements made by the alleged victim, Sharice Bryant. Sergeant Williams had been present at two interviews of Sharice which had been conducted by appellant’s defense counsel. During cross-examination, the following colloquy took place between trial counsel, Sergeant Williams, defense counsel, and the military judge:
TC: Are you the same Sergeant Williams who has just testified in this trial?
A. Yes, sir.
TC: I remind you you’re still under oath. Sergeant Williams, how long was the first interview that you attended with Captain McNeish and Sharice Bryant?
A. The first interview lasted about an hour.
TC: And how long was the second interview?
A. About a half hour.
TC: Sergeant Williams, based on your observations of Sharice Bryant and the time you spent with her, have you formed an opinion concerning her truthfulness?
A. Yes, sir.

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Cite This Page — Counsel Stack

Bluebook (online)
26 M.J. 487, 1988 CMA LEXIS 2603, 1988 WL 94293, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-williams-cma-1988.