United States v. Second Lieutenant GREGORY J. MURRAY ( 2014 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
LIND, KRAUSS, and BORGERDING
Appellate Military Judges
UNITED STATES, Appellee
v.
Second Lieutenant GREGORY J. MURRAY
United States Army, Appellant
ARMY 20111120
Headquarters, Fort Bliss
David H. Robertson, Military Judge (arraignment)
James L. Varley, Military Judge (trial and post-trial hearing)
Colonel Francis P. King, Staff Judge Advocate (pretrial)
Lieutenant Colonel Oren H. McKnelly, Acting Staff Judge Advocate
(recommendation)
Colonel Edward K. Lawson IV, Staff Judge Advocate (addendum)
For Appellant: William E. Cassara, Esq. (argued); Captain Brian J. Sullivan, JA;
William E. Cassara, Esq. (on brief).
For Appellee: Captain Benjamin W. Hogan, JA (argued); Colonel John P. Carrell,
JA; Major Robert A. Rodrigues, JA; Captain Benjamin W. Hogan, JA (on brief).
22 July 2014
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SUMMARY DISPOSITION
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KRAUSS, Judge:
An officer panel sitting as a general court-martial convicted appellant,
contrary to his pleas, of rape of a person under the age of 12 in violation of Article
120, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. § 920 (2000).
The convening authority approved the adjudged sentence of a dismissal, confinement
for eight years, and forfeiture of all pay and allowances.
MURRAY — ARMY 2011120
This case is before the court for review under Article 66, UCMJ. Appellant
assigns four errors. After review of the record and enjoying the benefit of the
parties’ briefs and oral argument, we conclude the evidence is sufficient to affirm
appellant’s conviction, 1 and that the judge did not abuse his discretion in denying
appellant’s request for expert assistance or in refusing to inquire further into the
panel’s deliberations. However, we conclude that some relief is warranted in light
of excessive post-trial delay in the process of this case. The issues of expert
assistance, the panel’s deliberations, and post-trial delay warrant brief discussion.
EXPERT ASSISTANCE
Appellant was convicted of raping JJ when she was less than 12 years old.
This conviction stands primarily on her testimony. Prior to trial, defense counsel
requested the assistance of a particular expert in forensic psychology, Dr. PE, as an
expert consultant to identify whether the credibility of JJ’s accusations against
appellant might be undermined. The defense counsel sought Dr. PE because he
possessed the education and experience to recognize whether JJ may have been
coached or susceptible to suggestion, among other possibilities. The convening
authority denied that request and offered a substitute, Dr. KE. The defense was not
satisfied with the substitute consultant because she possessed neither education,
training, or experience with either forensic or child psychology, whereas the
defense’s requested expert was purportedly experienced in both areas. 2
The military judge also denied appellant’s request for Dr. PE, and during the
trial, denied appellant’s request for reconsideration to appoint the same expert. 3 In
his initial denial, the judge left open defense’s opportunity to request
reconsideration if the defense consulted with the proffered substitute (an expert in
general psychology) and developed additional facts to support the appointment of
1
See United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).
2
The defense offered neither documentation nor testimony to establish their
requested expert’s special qualification, but all parties assumed he was so qualified,
and we assume so here for the sake of this decision. Research reveals that Dr. PE
has previously been recognized as an expert in the field of forensic and child
psychology in other courts. See, e.g., People v. Mayer, No. B230332, 2012 WL
682068, at *3 (Cal. Ct. App. Mar. 1, 2012).
3
During trial, the defense renewed its request based on the testimony of a medical
doctor about a physical exam of JJ. We agree with the military judge’s denial of
that renewed request in that there was nothing in the medical doctor’s testimony
about JJ’s physical examination sufficient to suggest the need for the assistance of a
forensic psychologist.
2
MURRAY — ARMY 2011120
Dr. PE. The defense never consulted with Dr. KE to attempt further development of
appellant’s request for Dr. PE in any respect.
On appeal, appellant argues the military judge abused his discretion when he
denied appellant’s request for Dr. PE as an expert consultant. To begin with, we
hold that appellant waived the issue by failing to employ Dr. KE and base a renewed
request on evidence developed through consultation with her. We recognize that
Dr. KE was an inadequate substitute in terms of specialized qualification; 4 but, at the
very least, her expertise in general psychology offered the defense counsel an
opportunity to develop the facts and testimony necessary to establish for the military
judge that Dr. PE was indeed required to ensure a fair trial. Dr. KE expressed a
willingness to assist in that respect, but the defense did nothing. Failure to exploit
this opportunity constitutes waiver under the circumstances. See United States v.
Gunkle, 55 M.J. 26, 32 (C.A.A.F. 2001).
Even if we were to consider that the judge imposed upon appellant a
requirement to engage in a futile exercise as a result of Dr. KE’s lack of experience
in the particular area of expertise requested, we nevertheless hold that he did not
abuse his discretion by denying appellant’s request. The military judge properly
resolved whether appellant demonstrated the necessity required to substantiate the
employment of expert assistance in the first place. He decided against appellant,
applying the three-part analysis provided in United States v. Gonzalez, 39 M.J. 459,
461 (C.M.A. 1994), 5 including a finding that civilian defense counsel’s significant
experience in the defense of such cases permitted that counsel to develop the facts
necessary himself or develop those facts necessary to renew his request for Dr. PE. 6
The defense counsel wanted this expert to review the entire case file and
various interviews of the victim in the case and advise the defense counsel whether
there was anything there worth pursuing. This shows neither a reasonable
probability that this consultant would help appellant nor that the denial of his
assistance would result in a fundamentally unfair trial. See United States v.
4
See United States v. Warner, 62 M.J. 114, 118 (C.A.A.F. 2005) (holding that if the
defense shows expert assistance is necessary, the government must provide an
“adequate substitute.”); UCMJ art. 46; Rule for Courts-Martial 703(d).
5
The defense must show: (1) why the expert is needed; (2) what the expert would
accomplish for the accused; and (3) why the defense counsel is unable to gather and
present the evidence that the expert would be able to develop. Gonzalez, 39 M.J. at
461.
6
It is apparent that defense counsel wanted to use the expert consultant as a witness
if the expert’s assistance revealed anything helpful to the defense, but there is no
request for the production of an expert witness at issue in this case.
3
MURRAY — ARMY 2011120
Freeman, 65 M.J. 451, 458 (C.A.A.F. 2008). Employing the three-part analysis of
Gonzalez ourselves, we hold the military judge did not abuse his discretion in
denying the request, especially in light of defense counsel’s significant experience
with the defense of such cases generally. This case is much like United States v.
Lloyd in that the defense here essentially based his request on the desire to have an
expert explore all possibilities. 69 M.J. 95, 99-100 (C.A.A.F. 2010). That is an
insufficient basis for appointment of an expert. See id.; Freeman, 65 M.J. at 458-59;
United States v. Bresnahan, 62 M.J. 137, 142-44 (C.A.A.F. 2005).
PANEL DELIBERATIONS
After trial, a panel member, Major (MAJ) BK, remarked to his civilian legal
adviser that the president of the panel, Colonel (COL) SM, “acted like a colonel”
during deliberations, and that during those deliberations the same COL M, a dentist,
declared on the question of sexual penetration, “I know anatomy.” The civilian legal
adviser’s observation was that MAJ BK was troubled by the behavior and statements
of COL SM and disturbed about the manner with which the panel president presided
over deliberations. This left the legal adviser with the impression that there was a
possibility of an issue relative to the improper use of rank or external information in
the panel’s deliberations. Cognizant of the necessity to respect the secrecy of panel
deliberations, the legal adviser cut any further discussion on the subject short.
Identifying the possibility of an issue over the validity of the panel’s findings, the
legal adviser contacted the relevant chief of criminal law on the installation. A post-
trial 39(a) session on the matter was convened at which the legal adviser was
examined and upon whose sole testimony the judge decided against inquiring any
further on the matter.
Appellant now argues the military judge abused his discretion when he denied
appellant’s motion to conduct further inquiry into the validity of the panel’s
findings. Here too we hold the judge did not abuse his discretion. The fact that the
panel president may have expressed a particular view about anatomy and penetration
during deliberations on the issue is an insufficient basis upon which to further
breach the secrecy of those deliberations. Whether this comment might suggest a
possible failure of the panel or a member to adhere to the definitions provided by the
judge, it is no basis upon which to embark upon further inquiry into the panel’s
deliberations. See United States v. Hollingsworthmata, 72 M.J. 619, 621 (Army Ct.
Crim. App. 2012), petition denied, 72 M.J. 403 (C.A.A.F. 2013); Military Rule of
Evidence [hereinafter Mil. R. Evid.] 606(b). Also, the remark related about anatomy
and its context is sufficiently akin to the sort of robust discussion expected in
deliberations and insufficiently indicative of the panel president purporting to be the
authority on matters of sexual penetration necessary to warrant any inquiry about
potential impact of external rather than intrinsic influences on the panel’s
deliberations. See United States v. Straight, 42 M.J. 244, 249-50 (C.A.A.F. 1995);
United States v. Accordino, 20 M.J. 102, 105 (C.M.A. 1985). Similarly, there is
4
MURRAY — ARMY 2011120
nothing about a colonel “acting like a colonel” as president of a court-martial panel
that is sufficiently indicative of the improper use of rank to consider the judge’s
decision an abuse of discretion. See Accordino, 20 M.J. at 105 (recognizing the
administrative powers of courts-martial presidents and the necessity to protect all
panel members, including senior ranking members from “fear of retribution or
appellate sniping” for the expression of opinions and participation in robust panel
discussions); Mil. R. Evid. 606(b).
POST-TRIAL DELAY
Finally, we address the matter of excessive post-trial delay. From sentence to
action, there was a 407-day delay. Our calculations in a light most favorable to the
government, and excluding defense delay and the time between sentence and
conclusion of the post-trial Article 39(a), leaves at least 286 days of processing time
attributable to the government. The military judge provided an explanation to cover
37 days of that delay. Despite appellant’s demand for speedy post-trial trial
processing submitted the month after the post-trial hearing concluded, the
government offers no additional explanation 7 for the remaining 249 days of delay.
Under the totality of the circumstances, we resolve that relief for this unexplained
delay is warranted. See UCMJ art. 66(c); United States v. Tardif, 57 M.J. 219, 224
(C.A.A.F. 2002); United States v. Toohey, 63 M.J. 353, 362-63 (C.A.A.F. 2006).
CONCLUSION
The findings of guilty are AFFIRMED. After considering the entire record,
the court affirms only so much of the sentence as provides for a dismissal,
confinement for seven years and eleven months, and forfeiture of all pay and
allowances. All rights, privileges, and property, of which appellant has been
deprived by virtue of that portion of the sentence set aside by this decision, are
ordered restored. See UCMJ art. 75(a).
Senior Judge LIND and Judge BORGERDING concur.
FOR THE COURT:
MALCOLM H. SQUIRES, JR.
Clerk of Court
7
Government Appellate Exhibit 1 is a chronology, not an explanation, for delay.
5