United States v. Lovett , 2004 CAAF LEXIS 121 ( 2004 )

UNITED STATES, Appellee
v.
Joshua P. LOVETT, Staff Sergeant
U.S. Air Force, Appellant
No. 03-0072
Crim. App. No. 33947
United States Court of Appeals for the Armed Forces
Argued October 21, 2003
Decided February 3, 2004
CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE, EFFRON, BAKER, and ERDMANN, JJ., joined.
Counsel
For Appellant: Mr. Norman R. Zamboni, Esq. (argued); Colonel
Beverly B. Knott, Major Karen L. Hecker, Major Andrew S.
Williams, and Captain James M. Winner (on brief); Major Terry L.
McElyea.
For Appellee: Major John C. Johnson (argued); Colonel LeEllen
Coacher, Lieutenant Colonel Robert B. Combs, and Captain Kevin
P. Stiens (on brief); Colonel Anthony P. Datillo, Lieutenant
Colonel Lance B. Sigmon, and Major Linette I. Romer.
Military Judge: B. T. Brown and L. S. Murnane.
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Lovett, No. 03-0072/AF
Chief Judge CRAWFORD delivered the opinion of the Court.
On May 12 and July 12-17, 1999, Appellant was tried by
general court-martial at Shaw Air Force Base (AFB), South
Carolina. Contrary to his pleas, Appellant was convicted of
wrongful possession of Percocet, rape, and soliciting the
commission of an offense to the prejudice of good order and
discipline, in violation of Articles 112a, 120, and 134, Uniform
Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 912a,
920, and 934 (2000), respectively.
Appellant was sentenced to a dishonorable discharge,
confinement for 15 years, total forfeiture of all pay and
allowances, and reduction to pay grade E-1. The convening
authority approved the sentence as adjudged and waived the
forfeitures for six months for the benefit of Appellant’s
family.
On September 9, 2002, the Air Force Court of Criminal
Appeals (CCA) affirmed the findings and sentence in an
unpublished opinion. United States v. Lovett, ACM No. 33947
(A.F. Ct. Crim. App. Sept. 9, 2002). This Court has granted
review of the following issues:
I. WHETHER THE MILITARY JUDGE ERRED BY ADMITTING
INTO EVIDENCE HEARSAY STATEMENTS MADE BY
APPELLANT’S WIFE, MM, AND LC, AND BY EXCLUDING,
AS HEARSAY, EXCULPATORY EVIDENCE OFFERED BY
APPELLANT.
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II. WHETHER THE MILITARY JUDGE ERRED BY INSTRUCTING
THE PANEL THAT THE MAXIMUM SENTENCE WAS LIFE
WITHOUT PAROLE WHEN THAT PUNISHMENT WAS NOT AN
AUTHORIZED SENTENCE AS ITS IMPLEMENTATION HAD NOT
YET BEEN ORDERED BY THE PRESIDENT, OR, IN THE
ALTERNATIVE, WHERE INSUFFICIENT EVIDENCE WAS
PRESENTED AT TRIAL TO PROVE THAT ANY ALLEGED ACTS
OF RAPE HAD OCCURRED AFTER 19 NOVEMBER 1997.
III. WHETHER APPELLANT’S CONVICTION FOR SOLICITATION
SHOULD BE SET ASIDE BECAUSE (1) IT FAILS TO STATE
AN OFFENSE, (2) IT IS NOT A LESSER INCLUDED
OFFENSE OF SOLICITATION TO COMMIT MURDER, OR (3)
THERE IS A FATAL VARIANCE BETWEEN THE CHARGED
SPECIFICATION AND THE FINDINGS.
For the reasons set forth below, we affirm as to Issue I and
reverse as to Issue III. Because we grant Appellant relief on
Issue III, we need not address Issue II.
FACTS
Appellant and his wife (TL) married in 1994. TL had a son
(CF) and daughter (MM) from previous relationships. TL
testified that in the spring of 1997, when MM was five years
old, MM told TL that Appellant was “touching” her. When TL
confronted Appellant with this accusation, he denied that this
ever occurred.
During the following school year (1997-98), MM developed a
friendship with another little girl (DI) in her kindergarten
class. The girls played together and occasionally they would
sleep at each other’s homes. On one occasion, DI’s mother
observed MM pulling up her dress and dropping her underwear.
Later, DI told her mother that MM had been showing boys her
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“privates” and telling a boy at school that he should be kissing
DI’s “privates.” DI’s mother relayed the incident to TL.
Around October 24, 1998, DI’s mother again observed MM engage in
overtly sexual behavior. During a sleepover at DI’s house, the
girls went to DI’s bedroom and locked the door. When they
became very quiet, DI’s mother unlocked the door and discovered
MM lying on the bed with her nightgown pulled up and DI
pretending to give her a shot in the genital area with a toy
hypodermic needle. The next morning, DI’s mother told TL about
the incident and suggested that she find out why MM had been
behaving in such a sexual manner.
Following TL’s conversation with DI’s mother, TL questioned
MM about her behavior, asking whether anyone had ever touched
her. MM first responded that the doctor had touched her, but
after further questioning from TL, MM eventually admitted that
“Daddy put his private in [my] tushy.” TL immediately called a
friend, LS, who came to the house and asked MM to tell her what
she had told her mother. MM revealed additional information to
LS, who then took MM to the emergency room at Shaw AFB. There,
the pediatric nurse practitioner who examined MM found a defect
in her hymen that was consistent with some form of penetration.
At trial, MM testified (after TL, but before LS) that
Appellant on many occasions “stuck his private up my private”
while the two were in Appellant’s bedroom and study. MM also
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testified that it hurt when Appellant did this, that Appellant
used a bottle of lotion during these acts, and that Appellant
told her not to tell anyone. MM had previously told a victim’s
advocate that Appellant started doing this to her when she was
five years old.
MM’s brother, CF, also testified at trial (after TL, MM,
and LS) that Appellant frequently took MM into his (Appellant’s)
bedroom or the study. CF said he was not permitted to enter the
room, even if he knocked on the door. CF further testified that
he heard MM crying when she was alone with Appellant, and that
he sometimes saw a bottle of lotion in the room after MM and
Appellant left.
In addition to raping MM, Appellant was charged with
soliciting a man (LC) to murder TL “by telling [LC] that he
wanted his wife to disappear, providing [LC] a picture to
identify the said [TL], and discussing how much it would cost to
have [LC] make the said [TL] disappear.” LC testified that
Appellant told him that he wanted TL to disappear. He further
testified that Appellant gave him a picture of TL, her car keys,
and discussed how much this would cost.
After evidence was presented, the Government requested that
the military judge instruct the members on the lesser-included
offenses of the solicitation specification, including the
lesser-included offense of soliciting a general disorder in
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violation of Article 134. In response, the military judge
proposed an instruction that would identify the following
elements of the lesser-included offense: that “[Appellant]
solicited [LC] to take some action to cause [TL] to disappear or
to fail to appear in court[,]” and “that under the circumstances
[Appellant’s] conduct . . . was to the prejudice of good order
and discipline in the armed forces or was of a nature to bring
discredit upon the armed forces.” Appellant objected to this
proposed instruction. Over this objection, the military judge
instructed the members on the general disorder lesser-included
offense, in pertinent part, as follows:
[I]t must be proven beyond a reasonable doubt that the
accused intended that [LC] commit every element of
this offense. Those elements are as follows: first,
that at the time and place alleged, the accused or
[LC] engaged in a specific act for the purpose of
wrongfully causing [TL] to be unable to appear at a
scheduled proceeding in a criminal or civil trial; and
second, that, under the circumstances the conduct of
the accused was to the prejudice of good order and
discipline in the armed forces or was of a nature to
bring discredit upon the armed forces.
After deliberations, the members excepted out “murder” from
the specification and found Appellant guilty of the “general
disorder” of
soliciting the commission of an offense to the
prejudice of good order and discipline . . . in that
[Appellant] . . . did . . . wrongfully solicit [LC] to
cause [TL] to disappear or to wrongfully prevent her
from appearing in a civil or criminal proceeding . . .
by telling [LC] he wanted his wife to disappear,
providing [LC] the keys to [TL’s] car, a picture to
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identify the said [TL] and by discussing how much it
would cost to make the said [TL] disappear.
DISCUSSION
I. WHETHER THE MILITARY JUDGE ERRED BY ADMITTING INTO EVIDENCE
HEARSAY STATEMENTS MADE BY APPELLANT’S WIFE, MM, AND LC,
AND BY EXCLUDING, AS HEARSAY, EXCULPATORY EVIDENCE OFFERED
BY APPELLANT.
Appellant claims that the military judge erred in
admitting, under hearsay exception rules, hearsay contained in
TL’s written statement and LS’s in-court testimony. Appellant
also argues that the military judge erred in excluding, on
hearsay grounds, exculpatory testimony from LC.
Appellant’s first complaint concerns Prosecution Exhibit
(PE) 12, consisting of a written statement made by TL to the Air
Force Office of Special Investigations (AFOSI) on November 24,
1998. In the statement TL described how she questioned MM about
whether Appellant abused her, and claimed that MM responded that
Appellant put his “private” in her “tushy.” TL also stated that
when she asked CF if he ever observed Appellant display
inappropriate behavior toward MM, CF responded that Appellant
often took MM downstairs alone while CF had to remain upstairs.
The exhibit was originally marked as Defense Exhibit I for
identification, and was used in this form by the defense counsel
to cross-examine TL. On redirect, trial counsel offered TL’s
written statement as a PE 12 for his own use. This exhibit was
generally consistent with TL’s affidavit furnished to the pre-
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trial investigator, originally marked DE J for identification
and subsequently admitted as PE 13. Appellant did not object to
the admission of PE 13. Appellant did object to PE 12, claiming
it contained uncharged misconduct and hearsay statements.
Regarding the hearsay objection, the judge extensively discussed
the statements’ admissibility under Military Rule of Evidence
801(d)(1)(B) [hereinafter M.R.E.] , as prior consistent
statements. Over defense objection, the military judge admitted
PE 12 under M.R.E. 801(d)(1)(B). In summarizing her ruling on
PE 12 for the record, the judge noted, in the alternative, that
the statements in PE 12 would also qualify as residual hearsay
under M.R.E. 807:
With regard to Prosecution Exhibit 12, I’m
overruling the defense objection to Prosecution
Exhibit 12 under 80 – Military Rule of Evidence
801(d)(1), and should I be mistaken that 801(d)(1)
actually applies, I find there are also sufficient
circumstantial guarantees of trustworthiness in that
the witness has taken the stand and has been subjected
to cross-examination on the statement under oath, and
therefore, I would find that it is also admissible
under Military Rule of Evidence 807, should I be
mistaken in my analysis under 801(d)(1).
M.R.E. 807 provides as follows:
A statement not specifically covered by Rule 803
or 804 [which describe exceptions to the hearsay rule]
but having equivalent circumstantial guarantees of
trustworthiness, is not excluded by the hearsay rule,
if the court determines that (A) the statement is
offered as evidence of a material fact; (B) the
statement is more probative on the point for which it
is offered than other evidence which the proponent can
procure through reasonable efforts; and (C) the
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general purposes of these rules and the interests of
justice will best be served by admission of the
statement into evidence.
Defense counsel did not object to the judge’s alternative
conclusion as to the admissibility of PE 12 under M.R.E. 807.
Appellant also challenges portions of LS’s in-court
testimony -- which occurred after MM’s trial testimony --
regarding her October 25 conversation with MM, during which she
claimed MM stated that Appellant “put his private in her tush”
and touched her “tee-tee.” At trial, defense counsel objected
to this testimony on hearsay grounds, generally noting its prior
argument based on M.R.E. 807, which Appellant had earlier
advanced regarding hearsay statements contained in TL’s in-court
testimony. Trial counsel countered the objection by referring
to its own earlier arguments on residual hearsay. The judge
then summarily overruled defense counsel’s objection, without
explanation. During the previous residual hearsay discussion to
which both counsel referred, the military judge had articulated
that MM’s hearsay statements contained in TL’s in-court
testimony were material and more probative on the point for
which they were offered than any other evidence the proponent
could procure through reasonable efforts.
Appellant finally argues that LC offered exculpatory
testimony, which the military judge erroneously excluded on
hearsay grounds. At trial, the Government asked LC how he
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obtained the job he was currently holding, whether he knew a
friend of TL’s, whether he was ever threatened regarding his
testimony at Appellant’s court-martial, and whether he
threatened anyone else. On cross-examination, defense counsel
asked LC whether Appellant told him that he ”didn’t want any
harm to come to his wife.” Trial counsel objected on hearsay
grounds. An Article 39(a) session was called, the members were
excused, and LC testified that he could not recall if Appellant
told him he did not want TL physically harmed. Defense counsel
argued that the statement was not offered for the truth of the
matter asserted, but rather to show whether LC actually felt
that Appellant was serious about having TL murdered, and that
therefore the statement fell within the state-of-mind exception
to the hearsay rule, under M.R.E. 803(3). The military judge
sustained trial counsel’s objection and refused to allow defense
counsel to inquire further as to the meaning of Appellant’s
solicitation request.
We hold that even assuming the judge erred in receiving the
hearsay statements within PE 12 into evidence, in overruling
defense counsel’s objection to LS’s hearsay testimony, and in
not permitting defense counsel to question LC about whether
Appellant did not want TL harmed, any such errors were harmless.
See Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2002) (“A finding
or sentence of court-martial may not be held incorrect on the
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ground of an error of law unless the error materially prejudices
the substantial rights of the accused.”).
Regarding MM’s hearsay statement in PE 12, TL had already
testified about the statement -- without defense objection --
during direct examination. Moreover, before PE 12 was offered
by the Government, the defense used it as its own exhibit,
admitted for identification, to cross-examine TL about MM’s
statement to her. The same statement was also contained in PE
13 -- the summary of TL’s testimony in a proceeding pursuant to
Article 32, UCMJ, 10 U.S.C. § 832 (2000) -- which was admitted
without objection by the defense, and was also used by the
defense to cross-examine TL, as an exhibit admitted for
identification. As to CF’s hearsay statement in PE 12, although
CF had not yet testified at the time PE 12 was admitted, he
testified and was cross-examined shortly thereafter, in a manner
consistent with his statement in PE 12. Regarding MM’s hearsay
statement contained in LS’s in-court testimony, by the time LS
testified at trial, the court members already had this evidence
before them through MM’s own trial testimony.
In sum, Appellant suffered no prejudice from the admission
of hearsay statements contained in PE 12 and LS’s trial
testimony. The hearsay statements were addressed without
defense objection during TL’s direct examination, were used by
the defense to cross-examine TL, were consistent with and
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cumulative of the declarants’ own in-court testimony, and were
contained in PE 13, which was admitted without defense
objection. See United States v. Gunkle, 55 M.J. 26, 30
(C.A.A.F. 2001)(noting this Court’s reluctance to find
reversible error where the challenged information is simply
cumulative of the victim’s own in-court testimony).
Finally, the judge’s failure to permit defense counsel to
question LC regarding Appellant’s exact intentions was harmless.
Indeed, the court members ultimately found that Appellant did
not solicit LC to murder TL -- but rather only to commit an act
prejudicial to good order and discipline. In sum, counsel’s
inability to probe LC to show that he did not solicit murder
could not have been prejudicial to Appellant.
Thus, we affirm the decision of the CCA as to Issue I,
holding in agreement with the CCA that any errors on the part of
the military judge were harmless.
II. WHETHER APPELLANT’S CONVICTION FOR SOLICITATION SHOULD BE
SET ASIDE BECAUSE (1) IT FAILS TO STATE AN OFFENSE, (2) IT
IS NOT A LESSER INCLUDED OFFENSE OF SOLICITATION TO COMMIT
MURDER, OR (3) THERE IS A FATAL VARIANCE BETWEEN THE
CHARGED SPECIFICATION AND THE FINDINGS.
Appellant was charged, in part, with soliciting LC to
murder TL, for telling LC that he wanted TL to disappear, for
providing LC with a picture of TL, and for discussing with LC
how much it would cost to have TL disappear. The members
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excepted out “murder” from the specification and found Appellant
guilty of the “general disorder” of
soliciting the commission of an offense to the
prejudice of good order and discipline . . . in that
[Appellant] . . . did . . . wrongfully solicit [LC] to
cause [TL] to disappear or to wrongfully prevent her
from appearing in a civil or criminal proceeding . . .
by telling [LC] he wanted his wife to disappear,
providing [LC] the keys to [TL’s] car, a picture to
identify the said [TL] and by discussing how much it
would cost to have [LC] make the said [TL] disappear.
Appellant now argues that this variance between the charge
and findings was significant enough to have prevented him from
adequately preparing a defense. In essence, Appellant claims
that defending against a charge of soliciting murder is not the
same as defending against a charge of soliciting the commission
of a general disorder. Appellant avers that because of this
difference, he was not “on notice” -- and therefore not prepared
-- to defend against the offense of which he was convicted. We
agree with Appellant, and hold that there was a fatal variance
between the charged specification and the findings.
“A variance between pleadings and proof exists when
evidence at trial establishes the commission of a criminal
offense by the accused, but the proof does not conform strictly
with the offense alleged in the charge.” United States v.
Allen, 50 M.J. 84, 86 (C.A.A.F. 1999). Nevertheless, the Rules
for Courts-Martial authorize findings by exceptions and
substitutions, with the caveat that they “may not be used to
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substantially change the nature of the offense or to increase
the seriousness of the offense or the maximum punishment for
it.” Rule for Courts-Martial 918(a)(1). See also United States
v. Wray, 17 M.J. 375, 376 (C.M.A. 1984).
Minor variances that do not change the nature of the
offense are not necessarily fatal. See United States v. Hunt,
37 M.J. 344, 347-48 (C.M.A. 1993)(date of rape charged as “on or
about”); United States v. Willis, 50 M.J. 841 (A. Ct. Crim. App.
1999)(change in language alleged to be false under Article 107
violation not material). “Where, however, an appellant can
demonstrate that a variance is material and that he or she was
prejudiced, the variance is fatal and the findings thereon can
not stand.” United States v. Teffeau, 58 M.J. 62, 66 (C.A.A.F.
2003)(concluding that the variation between the charge of
violating a general order by providing alcohol to a recruit and
the findings that the accused wrongfully engaged in and
encouraged a nonprofessional, personal relationship with the
recruit was material because it deprived the accused of the
opportunity to defend against the charge).
Prejudice can arise from a material variance in several
ways:
An appellant may show that the variance puts him at
risk of another prosecution for the same conduct. An
appellant may [alternatively] show that his due
process protections have been violated where he was
“misled to the extent that he has been unable
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adequately to prepare for trial,” or where the
variance at issue changes the nature or identity of
the offense and he has been denied the opportunity to
defend against the charge.
Id. at 67 (quoting United States v. Lee, 1 M.J. 15, 16 (C.M.A.
1975))(other citations omitted). We hold that the soliciting
murder charge did not put Appellant on notice to defend against
a lesser-included offense of soliciting the commission of
obstruction of justice. Consequently, there was a fatal
variance between the specification as charged and the members’
ultimate findings.
The original specification for solicitation to commit
murder read as follows:
[D]id, at or near Sumter, South Carolina, between on
or about 24 November 1998 and on or about 19 January
1999, wrongfully solicit [LC] to murder [TL], by
telling [LC] that he wanted his wife to disappear,
providing [LC] a picture to identify the said [TL],
and discussing how much it would cost to have [LC]
make the said [TL] disappear.
Court-Martial Order at 1 (emphasis added). The members’
findings on the above specification -- establishing Appellant’s
solicitation conviction -- were returned as follows:
Not Guilty, but guilty of the lesser included offense
of soliciting the commission of an offense to the
prejudice of good order and discipline in the armed
forces as follows: in that [Appellant] did, at or near
Sumter, South Carolina, between on or about 24
November 1998 and on or about 19 January 1999,
wrongfully solicit [LC] to cause [TL] to disappear or
to wrongfully prevent her from appearing in a civil or
criminal proceeding pending before a duly authorized
court of the United States by telling [LC] that he
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wanted his wife to disappear, providing [LC] the keys
to [TL]’s car, a picture to identify the said [TL],
and discussing how much it would cost to make the said
[TL] disappear.
(Emphasis added.) In essence, Appellant was convicted of
soliciting the commission of obstruction of justice.
The offense of murder under Article 118, with which
Appellant was originally charged with soliciting, is as follows:
Any person subject to this chapter who, without
justification or excuse, unlawfully kills a human
being, when he --
(1) has a premeditated design to kill;
(2) intends to kill or inflict great bodily harm;
(3) is engaged in an act that is inherently
dangerous to another an evinces a wanton disregard of
human life; or
(4) is engaged in the perpetration or attempted
perpetration of burglary, sodomy, rape, robbery, or
aggravated arson; is guilty of murder, and shall
suffer such punishment as a court-martial may direct,
except that if found guilty under clause (1) or (4),
he shall suffer death or imprisonment for life as a
court-martial may direct.
Appellant’s original charge suggested a violation of clause (1),
in that “telling LC that he wanted his wife to disappear,
providing LC a picture to identify the said TL, and discussing
how much it would cost to have LC the said TL disappear” imply
premeditation on Appellant’s part, and Appellant’s specific
intent that such murder be committed. Upon receiving this
charge, Appellant’s defense team channeled its efforts in the
direction of solicitation of premeditated murder, in order to
defeat the Government’s attempt to prove premeditated murder
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beyond a reasonable doubt. Indeed, assembling such a defense is
what the charge put counsel “on notice” to do.
Given the explicit language of the charge, Appellant could
not have anticipated conviction for a lesser-included offense of
soliciting a person to wrongfully prevent her from appearing in
a judicial proceeding. Because he lacked notice to prepare an
adequate defense, there was a fatal variance between the precise
specification as charged, and the general findings as returned
by the members.
The decision of the United States Air Force Court of
Criminal Appeals is affirmed as to Charges I and III and their
specifications, and set aside as to Charge II and the sentence.
The case is returned to the Judge Advocate General for remand to
the Court of Criminal Appeals, which may reassess the sentence
or order a sentence rehearing.
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