United States v. Williams

37 M.J. 352, 1993 CMA LEXIS 64, 1993 WL 310754
United States Court of Military Appeals·Decided August 18, 1993·No. No. 68,019; CMR No. 9001812·Published·Cited by 98 cases

Opinions

Opinion of the Court

SULLIVAN, Chief Judge:

On June 21, 1990, appellant was tried by a general court-martial composed of officer and enlisted members at Wuerzburg, Federal Republic of Germany. Contrary to his pleas, he was found guilty of rape and false swearing, in violation of Articles 120 and 134, Uniform Code of Military Justice, 10 USC §§ 920 and 934, respectively. He was sentenced to a dishonorable discharge, confinement for 10 years, total forfeitures, and reduction to Private El. After a post-trial hearing, the convening authority on August 28, 1990, approved the findings, but he set aside the sentence and ordered a [354]*354rehearing thereon. On August 29, 1990, appellant was sentenced by the military judge to a bad-conduct discharge, as well as confinement and forfeiture of $500.00 pay per month for 54 months. The convening authority approved this sentence. On March 27, 1992, the Court of Military Review affirmed the findings of guilty and the sentence. 34 MJ 919.

On August 26, 1992, this Court granted appellant’s petition for grant of review on the following issue:

WHETHER THE MILITARY JUDGE ERRED BY NOT GRANTING A DEFENSE MOTION FOR A REHEARING BASED ON THE DISCOVERY OF NEW EVIDENCE WHICH WOULD HAVE PRODUCED A DIFFERENT RESULT AT TRIAL AND IN DEROGATION OF MILITARY RULE OF EVIDENCE 412 AND THE SIXTH AMENDMENT WHICH INFRINGED UPON APPELLANT’S RIGHT TO PRESENT HIS DEFENSE.

We hold that the military judge clearly abused his discretion when he denied the defense motion for a rehearing on findings based on newly discovered evidence which substantially impeached the prosecutrix’ testimony on a material matter. See United States v. Chadd, 13 USCMA 438, 32 CMR 438 (1963); cf. United States v. Thomas, 11 MJ 135 (CMA 1981). See generally United States v. Scaff 29 MJ 60 (CMA 1989). Furthermore, we hold that the military judge likewise legally erred by relying on Mil.R.Evid. 412, Manual for Courts-Martial, United States, 1984, as a basis for denying this motion for a rehearing. See United States v. Dorsey, 16 MJ 1 (CMA 1983); cf. Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988).1

The Court of Military Review summarized the facts concerning the granted issue as follows:

After the initial trial, the trial defense counsel discovered new information about the victim of the rape, SPC W. The military judge held a post-trial Article 39(a), UCMJ, session to determine whether the new evidence required a new trial. United States v. Scaff 29 MJ 60 (CMA 1989). The military judge determined that the new evidence would not have been admissible during the findings portion of the trial and would not have affected the findings of guilty. However, he further determined that the new evidence would affect the sentence portion of the trial. The convening authority set aside the initial sentence and ordered a rehearing on sentence only____
On 29 March 1990, the appellant and SPC W were on duty as assistant charge of quarters (ACQ) for their headquarters unit.

34 MJ 919-20.

The Court of Military Review also found: The newly discovered evidence concerns SPC M, a soldier with whom the victim, SPC W, was having a[n extramarital] sexual relationship.
In the post-trial Article 39(a), UCMJ, session, SPC M testified under a grant of immunity that he and SPC W began a sexual relationship in March 1990 and it continued after the alleged rape by the [355]*355appellant. He engaged in sexual intercourse with SPC W either the day before or the day after the alleged rape by appellant. SPC M testified that SPC W was “just basically someone to have sex with.”
During the first week of May 1990, SPC W attempted suicide by taking an overdose of pills. SPC W testified that her relationship with SPC M had nothing to do with the attempted suicide, even though SPC M had told her three to four days prior to the attempted suicide that they had to limit their relationship. She testified that she also agreed they must limit their relationship. From the discussion of a break-up until the suicide attempt, SPC W and SPC M did not engage in sexual intercourse. However, they did resume sexual activities after the suicide attempt.
At the [pre-trial] Article 32, UCMJ, hearing, SPC W testified that early in the evening of the alleged rape, she was talking to SPC M when the appellant came by to check on her. The trial defense counsel questioned SPC W about her relationship with SPC M. She testified that she did not know why SPC M came to see her on CQ duty and that he was just her associate. She further testified that she only talked to him when she saw him.

34 MJ at 921.-

During the post-trial session under Article 39(a), UCMJ, 10 USC § 839(a), appellant requested a rehearing based on his assertion that newly discovered evidence “would produce a different trial result.” The newly discovered evidence was testimony from SPC W and SPC M that they were engaging in an extramarital relationship before the offense and after it; that SPC M terminated this relationship after the alleged rape; and that both persons affirmatively concealed these facts from the earlier court-martial and other parties. Appellant asserted that this evidence would provide a motive for SPC W to fabricate charges against him, i.e., to protect her extramarital relationship with SPC M. Appellant also contended that SPC W was seeking revenge against him because he was informing others of their sexual intercourse. Finally, he argued that evidence of the extramarital relationship between SPC W and SPC M would produce a different result at trial on sentencing.

However, the military judge denied appellant’s motion for a rehearing, finding that evidence of SPC W’s extramarital relationship with SPC M prior to the rape would not, if considered by a court-martial with the other evidence adduced at trial, produce a substantially more favorable result for appellant. Furthermore, the military judge concluded that admissibility of the evidence of the pre-offense sexual behavior was neither “mandated [n]or otherwise required under either the Fifth or Sixth Amendments to the ... Constitution.” Regarding SPC W’s extramarital relationship with SPC M after the alleged rape, the military judge made similar findings and conclusions, except that the military judge ruled that such evidence was admissible as proper rebuttal to the Government’s aggravation evidence on sentencing (i.e., the trauma of the alleged rape interfered with her marital sex life).

Appellant challenges the post-trial decision of the military judge denying his request for a rehearing based on newly discovered evidence. Art. 39(a) and RCM 1102(b)(2), Manual for Courts-Martial, United States, 1984.

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United States v. Williams, 37 M.J. 352, 1993 CMA LEXIS 64, 1993 WL 310754 (cma 1993).

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