United States v. Staff Sergeant VICTOR D. WILSON ( 2017 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
CAMPANELLA, HERRING, and PENLAND
Appellate Military Judges
UNITED STATES, Appellee
v.
Staff Sergeant VICTOR D. WILSON
United States Army, Appellant
ARMY 20140220
Headquarters, United States Army Recruiting Command
Scott R. Lawson, Military Judge
Colonel Cheryl R. Lewis (pretrial)
Colonel Timothy J. Cody (post-trial)
For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Captain Heather L.
Tregle, JA; Captain Joshua G. Grubaugh, JA (on brief).
For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Cormac M. Smith, JA; Captain Linda Chavez, JA (on brief).
18 January 2017
-----------------------------------
SUMMARY DISPOSITION
-----------------------------------
PENLAND, Judge:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of four specifications of violating a general regulation, in
violation of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892
[hereinafter UCMJ] (2012); the military judge convicted appellant, contrary to his
pleas, of two specifications of abusive sexual contact and two specifications of
communicating indecent language, in violation of Articles 120 and 134, UCMJ, 10
U.S.C. §§ 892, 934 (2006 and Supp. IV, 2012). The convening authority approved
the adjudged sentence of a bad-conduct discharge, confinement for thirty months,
and reduction to the grade of E-1.
We review this case under Article 66, UCMJ. Appellant raises two
assignments of error; one of them, dilatory post-trial processing, merits brief
discussion and relief. His second assignment of error merits brief discussion but no
relief. We have also considered matters personally raised by appellant under United
WILSON—ARMY 20140220
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982); beyond his complaint regarding
post-trial delay, they lack merit.
Post-trial Delay
The government is accountable for each of the 405 days that elapsed between
announcement of sentence and the convening authority’s action. United States v.
Banks, 75 M.J. 746, 751 (Army Ct. Crim. App. 2016). Trial defense counsel took
only eight days to submit clemency matters, after requesting speedy post-trial
processing multiple times. The government took over 150 days to transcribe the
434-page record, and the military judge took approximately 150 days to authenticate
it. The facts and circumstances do not justify the delay. *
We review de novo appellant’s claim that he has been denied his due process
right to a speedy post-trial review. United States v. Moreno, 63 M.J. 129, 135
(C.A.A.F. 2006). Our superior court has adopted a four-factor balancing test from
Barker v. Wingo, 407 U.S. 514, 530 (1972) to determine whether a due process
violation has occurred: (1) the length of the delay; (2) the reasons for the delay; (3)
the appellant's assertion of the right to timely review and appeal; and (4) prejudice.
Id.
While appellant has not met his burden to establish prejudice, he has been
denied due process. We so conclude after “balancing the other three factors, [and
finding] the delay is so egregious that tolerating it would adversely affect the
public’s perception of the fairness and integrity of the military justice system.”
United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006). We reassess the
sentence, and affirm only so much of the sentence as provides for a bad-conduct
discharge, confinement for twenty-nine months, and reduction to E-1.
We must also review the appropriateness of appellant’s sentence in light of
the lengthy post-trial processing. See UCMJ art. 66(c); United States v. Tardif, 57
M.J. 219, 224 (C.A.A.F. 2002) (“[Pursuant to Article 66(c), UCMJ, service courts
are] required to determine what findings and sentence ‘should be approved,’ based
on all the facts and circumstances reflected in the record, including the unexplained
and unreasonable post-trial delay.”). Upon review of the entire record, we find
appellant’s reassessed sentence is appropriate.
*
We invite practitioners’ attention to the substitute authentication procedures
authorized in the Rules for Court Martial.
2
WILSON—ARMY 20140220
Cumulative Error
Appellant also asserts the cumulative effect of two errors in his court-martial
deprived him of his right to a fair trial. We disagree.
Specifically, appellant alleges government counsel improperly “use[d]” the
providence inquiry to prove another offense to which appellant had pleaded not
guilty. Indeed, during closing argument government counsel did make a brief,
opaque and awkward reference to his providence inquiry. However, defense counsel
did not object. Appellant has not met his burden to show this argument was plainly
and obviously erroneous; even were we to conclude it was, it did not materially
prejudice appellant’s substantial rights. See United States v. Larson, 66 M.J. 212,
217 (C.A.A.F. 2008) (Argument is not evidence.); United States v. Erickson, 65 M.J.
221, 225 (C.A.A.F. 2007) (Military judges are presumed to know the law and to
follow it absent clear evidence to the contrary.).
Second, citing the best evidence rule, Military Rule of Evidence [hereinafter
Mil. R. Evid.] 1004, appellant alleges the military judge abused his discretion by
allowing testimony from a law enforcement officer describing the contents of a
surveillance video near the recruiting office where appellant was assigned. The
video itself was not offered in evidence. Trial defense counsel preserved the issue
by objecting, but in so doing said: “The line of questioning, I believe the
government is going down, is going to discuss video surveillance that is no longer
around.” The law enforcement officer also described his inability to obtain the
video: “We weren’t able to download the video. I don’t remember if it was a
hardware problem with their system or what exactly the problem was.” Under the
facts and circumstances, the military judge’s decision to hear the witness’s
testimony was well within the bounds of reasonable discretion. See Mil. R. Evid.
1004(b).
CONCLUSION
The findings of guilty are AFFIRMED. Reassessing the sentence in
accordance with Tardif, we affirm only so much of the sentence as provides for a
bad-conduct discharge, confinement for twenty-nine months, and reduction to E-1.
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.
Senior Judge CAMPANELLA and Judge HERRING concur.
3
WILSON—ARMY 20140220
FOR
FORTHE
THECOURT:
COURT:
MALCOLMH.
MALCOLM H.SQUIRES,
SQUIRES,JR.
JR.
ClerkofofCourt
Clerk Court
4