United States v. Woodard

39 M.J. 1022, 1994 CMR LEXIS 131, 1994 WL 159459
CourtU.S. Army Court of Military Review
DecidedApril 29, 1994
DocketACMR 9300013
StatusPublished
Cited by2 cases

This text of 39 M.J. 1022 (United States v. Woodard) is published on Counsel Stack Legal Research, covering U.S. Army Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Woodard, 39 M.J. 1022, 1994 CMR LEXIS 131, 1994 WL 159459 (usarmymilrev 1994).

Opinion

OPINION OF THE COURT

GONZALES, Judge:

Pursuant to his pleas, the appellant was found guilty by a military judge of rape, sodomy, and indecent acts with his nine-year-old stepdaughter and of indecent liberties with his nine-year-old natural son in violation of Articles 120, 125, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920, 925, and 934 (1988) [hereinafter UCMJ]. The appellant was sentenced by a general court-martial composed of officer members to a dishonorable discharge, confinement for twenty-five years, forfeiture of all pay and allowances, and reduction to Private El. In compliance with the terms of a pretrial agreement, the convening authority approved the dishonorable discharge and confinement for eighteen years, and consistent with a post-trial request for clemency, he also suspended the forfeiture of all pay and allowances for twenty-four months on the condition that the appellant initiated and continued an allotment of not less than $900.00 per month to his wife during the suspension period.

Before this court, the appellant asserts, inter alia, that the military judge erred by admitting an irrelevant, unauthentieated copy of an affidavit by Lieutenant Colonel (LTC) Thomas J. Schmitt on sentencing. He urges this court to direct a rehearing on sentencing. We agree in part, but affirm.

I. The Facts

After the military judge entered findings, the trial counsel offered the appellant’s DA Forms 2A and 2-1, and read the stipulation of fact used during the providence inquiry to the panel members in aggravation. The government then rested.

The appellant called six witnesses, offered the testimony of a seventh witness through a stipulation, and made an unsworn statement in extenuation and mitigation. The main thrust of the defense’s presentation was to emphasize treatment for the appellant and to ask the panel to adjudge a sentence that [1024]*1024would not be so severe that it would nullify the treatment that the appellant required.

The primary defense witness on the correlation between punishment and treatment was Major (MAJ) Larry James, the 25th Infantry Division Psychologist, who testified as an expert in psychology with an emphasis on child molesters. According to MAJ James, the longer the history a person has of committing a particular crime, the less likely he or she would benefit from treatment. Because the appellant had committed the offenses over a short two-month period, MAJ James believed there was a higher likelihood that the appellant would benefit from treatment. Furthermore, he emphasized that the appellant could benefit from a confinement facility that had a full-time treatment program. To incarcerate the appellant in a facility that did not have a treatment program for sexual offenders would not be beneficial to the appellant’s rehabilitation.

During his argument on sentencing, the trial defense counsel continued with his “treatment” theme by asking the panel,

[I]f he doesn’t receive the proper treatment, he’s going to go back into the civilian world the way he is____ When you determine the amount of confinement for Sergeant Woodard, take into consideration where he’s going to be doing his confinement and what kind of institution that is---- We represent our country and if we do not make sure that Sergeant Woodard gets the proper treatment and doesn’t spend such an excessive period of time in jail that’s going to nullify the treatment, how are we serving our country? 1

At the conclusion of the military judge’s instructions to the panel on sentencing, one of the panel members submitted a written question to the court asking, “No discussion concerning treatment as part of his sentencing. What can we do as members to recommend treatment versus confinement at an institution such as Fort Leavenworth?”2 After noting that the government had presented no evidence on any treatment program at the United States Disciplinary Barracks (USDB), the military judge asked the trial counsel if he had any evidence to present to answer the panel member’s question. The trial counsel offered a facsimile copy of a two-and-a-half-page affidavit by LTC Thomas J. Schmitt, the Director of Mental Health at the USDB [hereinafter Schmitt affidavit], that described the USDB’s child sex offender treatment program in some detail.3 The trial defense counsel objected on the basis that the affidavit was not relevant and that it was not an original. The trial defense counsel also refused to enter into a stipulation of expected testimony. The trial counsel argued that the Schmitt affidavit was relevant because it was responsive to the panel member’s question and that a facsimile copy of an original was admissible under Mil.R.Evid. 1003.

The military judge admitted the Schmitt affidavit as an appellate exhibit rather than as a prosecution or defense exhibit because it was in response to a panel member’s question.

The trial defense counsel then requested that he be allowed to recall MAJ James to comment on the Schmitt affidavit and to offer his opinion of the treatment program at the USDB. The military judge agreed and recalled MAJ James as a witness of the court. The military judge gave each of the seven panel members a copy of the Schmitt affidavit and had them read it before MAJ James testified.

Major James stated that the psychiatric staff at the USDB was very well qualified. However, he expressed a concern in the amount of time the Schmitt affidavit indicated an individual would be involved in treatment. Two hours a week for six months would not be a sufficient amount of treatment for the appellant. Major James added that while he believed that the appellant should be confined, his confinement should be in a facility that had an intensive treatment program for child sex offenders. Ma[1025]*1025jor James acknowledged that he was unaware of another program in the Army that provided more treatment than the program at the USDB.

The military judge allowed the panel members to take their copies of the Schmitt affidavit with them into the deliberation room.4

II. The Law

In order for the Schmitt affidavit to be admissible, it must be relevant, properly authenticated, and qualify as a duplicate of an original. More importantly, however, the Schmitt affidavit must satisfy the hearsay requirements found in Mil.R.Evid. 801-803 before it can be properly admitted into evidence. A brief review of the Military Rules of Evidence for these four requirements follows.

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action probable or less probable than it would be without the evidence. Mil.R.Evid. 401; United States v. Houser, 36 M.J. 392, 399 (C.M.A.1993). In the context of sentencing, evidence is “relevant” if it has the tendency to establish a fact that is of consequence to the determination of an appropriate sentence under Rule for Courts-Martial 1001 [hereinafter R.C.M.]. See United States v. Frazier, 33 M.J. 260, 263 (C.M.A.1991).

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Cite This Page — Counsel Stack

Bluebook (online)
39 M.J. 1022, 1994 CMR LEXIS 131, 1994 WL 159459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-woodard-usarmymilrev-1994.