United States v. Staff Sergeant (E-6) EVERALD S. ALLEN

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
TOZZI, SALADINO, and CELTNIEKS
Appellate Military Judges
UNITED STATES, Appellee
v.
Staff Sergeant (E-6) EVERALD S. ALLEN
United States Army, Appellant
ARMY 20130521
Headquarters, XVIII Airborne Corps and Fort Bragg
David H. Robertson, Military Judge
Colonel Paul S. Wilson, Staff Judge Advocate
For Appellant: Mr. C. Ed Massey, Esquire (argued); Captain Michael J. Millios, JA;
Mr. C. Ed Massey, Esquire (on brief); Captain Michael J. Millios, JA; Mr. C. Ed
Massey, Esquire (on supplemental brief); Captain James D. Hammond, JA; Mr. C.
Ed Massey, Esquire (on reply brief).
For Appellee: Captain Christopher A. Clausen, JA (argued); Major A.G. Courie III,
JA; Major Daniel D. Derner, JA; Captain Christopher A. Clausen, JA (on brief).
28 March 2016
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MEMORANDUM OPINION
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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
SALADINO, Judge:
A panel with enlisted representation sitting as a general court-martial,
convicted appellant, contrary to his pleas, of one specification of aggravated sexual
assault, one specification of abusive sexual contact, and one specification of
obstruction of justice, in violation of Articles 120 and 134, UCMJ, 10 U.S.C. §§ 920and 934. (2006 and Supp. V). 1 The panel sentenced appellant to a dishonorable
discharge, confinement for twenty years, forfeiture of all pay and allowances, and
1
The panel found appellant not guilty, in accordance with his pleas, of one
specification of rape and one specification of aggravated sexual contact in violation
of Article 120, UCMJ, 10 U.S.C. § 920 (2006 and Supp. V).
ALLEN–ARMY 20130521
reduction to E-1. The convening authority approved the findings and sentence as
adjudged.
Appellant raises five assignments of error. One assignment of error merits
discussion but no relief. We hold that the military judge did not commit plain error
by answering in the negative a panel request to “have a copy of the court transcripts
to review in the deliberation room.” Accordingly, we affirm the findings and
sentence.
FACTS
Appellant stands convicted of sexually assaulting a fellow soldier in April
2012 and obstructing justice in July 2010. After both sides completed presenting
their evidence and rested, the military judge gave instructions and the panel heard
closing arguments. During the members’ deliberations the panel returned to the
courtroom to inquire of the military judge whether the members could obtain a copy
of the entire transcript to take back with them to the deliberation room. The
following colloquy ensued:
MJ: Colonel Church [Panel President], it’s the Court’s
understanding that the members have a question.
PRES: Yes, Your Honor.
MJ: And the question is?
PRES: The question is can we have a copy of the court
transcripts to review in the deliberation room?
MJ: The answer to that question is no. Taking a transcript
of a witness’ testimony and allowing that to go back into
the deliberation room would be like allowing an individual
witness to follow you into the deliberation room and be
able to testify to you again there in the deliberation room.
So does that answer your question?
[Pause]
MJ: And I’ll give you another instruction. Recall the
instruction I gave you is that as to reasonable doubt that
extends to every element of each offense although not to
each particular fact advanced by the prosecution which
does not amount to an element. So, when you all discuss
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the case, you do not have to come to a perfect agreement
on what each fact was or what each witness stated. That’s
part of the discussion. And then you can take your vote.
PRES: All right, Your Honor. May any of the other panel
members speak?
MJ: Who needs to speak, and what is it in reference to?
PRES: Your Honor, unfortunately, I don’t recall the
specific question that generated the request for the court
transcripts. I know it dealt with one of the testimonies
[sic] and rather than just having us ask for that one
particular transcript, we asked for the entire court record.
MJ: You cannot have the entire court record. As I stated,
you may use your recollection of what evidence was
presented here in court. You may use your notes, although
you may not show them to other members. I encourage
you to go back and discuss those matters amongst
yourselves and this additional instruction I gave you. If
that is still not satisfactory, then you may then come in
and let this Court know. There are other procedures where
testimony could be either replayed or reread—specific
portions of testimony. Although that is a procedure not
easily done and will result in delay in this trial. However,
if you all feel it is absolutely necessary for your resolution
of the charges in this case, let the Court know.
PRES: Yes, Your Honor.
MJ: The Court is closed.
Neither party objected to the military judge’s ruling, nor asked for additional
information. The military judge then entered into an Article 39(a), UCMJ, session
wherein he and counsel for both sides discussed how to proceed should the members
return to the courtroom with a request to replay certain testimony. After
approximately two more hours of deliberation, the members returned to the
courtroom to announce they had reached a verdict:
MJ: Colonel Church, has the jury reached findings?
PRES: Yes, Your Honor.
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MJ: I take it that since you did not request to come back
into court and have any of the testimony replayed that the
Court’s previous instructions resolved the issue and the
jury was able to resolve it without the need for that?
PRES: Correct, Your Honor.
The defense post-trial submissions and its oral argument before this court
emphasizes the tone of the military judge’s language, characterizing it as having a
squelching effect on the panel’s desires to rehear the testimony of witnesses after the
close of the evidence. The defense also argues the military judge’s ruling to
disallow the testimony transcripts served to eliminate the panel’s ability to receive
the information it desired in order to reach a verdict.
LAW AND DISCUSSION
A. Standard of Review
We review for plain error the military judge’s denial of the panel members’
request for testimony from additional witnesses. United States v. Lampani, 14 M.J.
22, 25 (C.M.A. 1982). Generally speaking, this court reviews a military judge’s
denial of a panel member’s request to recall a witness or replay a witness’s
testimony for abuse of discretion. United States v. Clifton, 71 M.J. 489, 491
(C.A.A.F. 2013); United States v. Rios, 64 M.J. 566, 569 (Army Ct. Crim. App.
2007). However, absent an objection from defense counsel at trial, we review the
military judge’s instructions to the panel for plain error in the context of non-
constitutional error. Clifton, 71 M.J. at 491. “Under a plain error analysis, this
Court will grant relief in a case of non-constitutional error only if an appellant can
demonstrate that (1) there was error; (2) the error was plain and obvious; and (3) the
error materially prejudiced a substantial right of the accused.” Id. (citing United
States v. Powell, 49 M.J. 460, 464-65 (C.A.A.F. 1998)).
B. The Members’ Right to Request that the Court-Martial be Reopened
and Portions of the Record be Read to Them
The members are “at liberty to request that witnesses be called or recalled or
to have testimony reread by the court reporter . . . .” United States v. Lampani, 14
M.J. 22, 26 (C.M.A. 1982). “Moreover, our precedents make clear that, even after
the court members have begun their deliberations, they may seek additional
evidence.” Id. at 25 (citations omitted). The ability of the members to request
evidence derives from Article 46, UCMJ, which states in pertinent part “[t]he trial
counsel, the defense counsel, and the court-martial shall have equal opportunity to
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obtain witnesses and other evidence in accordance with such regulations as the
President may prescribe.” UCMJ art. 46 (emphasis added); see United States v.
Martinsmith, 41 M.J. 343, 347 (C.A.A.F. 1995). Rule for Courts-Martial
[hereinafter R.C.M.] 921(b) also permits the members to “request that the court-
martial be reopened and that portions of the record be read to them or additional
evidence introduced. The military judge may, in the exercise of discretion, grant
such request.” See Rios, 64 M.J. at 568 (holding that the military judge abused his
discretion by summarily denying the members’ request to rehear the testimony of
two witnesses). Rule for Courts-Martial 801(c) contains a similar provision and
states “[t]he court-martial may act to obtain evidence in addition to that presented by
the parties. The right of the members to have additional evidence obtained is subject
to an interlocutory ruling by the military judge.” 2 Finally, the Military Rules of
Evidence also contain a provision reiterating the members’ ability to call and
interrogate witnesses. See Mil. R. Evid. 614(a). 3
While the military judge may properly exercise his discretion and deny a
member’s request for additional evidence, our superior court has set forth a non-
exclusive list of factors the judge must consider prior to doing so:
Difficulty in obtaining witnesses and concomitant delay;
the materiality of the testimony that a witness could
produce; the likelihood that the testimony sought might be
subject to a claim of privilege; and the objections of the
2
The discussion to R.C.M. 801(c) notes:
The members may request and the military judge may
require that a witness be recalled, or that a new witness be
summoned, or other evidence produced. The members or
military judge may direct trial counsel to make an inquiry
along certain lines to discover and produce additional
evidence.
3
Military Rule of Evidence 614(a) states:
The military judge may, sua sponte, or at the request of
the members or the suggestion of a party, call witnesses,
and all parties are entitled to cross-examine witnesses thus
called. When the members wish to call or recall a witness,
the military judge shall determine whether it is appropriate
to do so under these rules or this Manual.
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parties to reopening the evidence are among the factors
the trial judge must consider.
Lampani, 14 M.J. at 26.
Here the military judge received a request to provide a copy of the transcript
of the testimony of the entire proceedings. Notwithstanding there was no physical
transcript to produce as the trial was ongoing, the request to have the testimony
reduced to writing and delivered to the members was met by an appropriate response
from the military judge. See R.C.M. 921(b) (only those items admitted into evidence
may be taken with the panel members to the deliberation room). The military judge
then reiterated the reasonable doubt standard. Further, he explained it was
permissible not to come to a perfect agreement on what each fact was or what each
witness stated, and why. He explained the instructions he had given anticipated
situations wherein members may not completely agree about facts in the case, but
they may still agree upon a verdict.
Because the panel made no additional request for replaying specific testimony
of one or more witnesses, the military judge did not analyze any of the factors set
forth in Lampani, but did in fact mention delay as a factor to consider when
requesting the playback of testimony. “[C]learly, a military judge cannot exercise
his discretion in an informed manner without obtaining some indication from the
court members as to the witnesses whom they desire to call.” Lampani, 14 M.J. at
26. A plain reading of the UCMJ, the Rules for Courts-Martial, the Military Rules
of Evidence, and repeated holdings in case law reveals that in order for a military
judge to be found to have committed error, he must first summarily dismiss the
reasonable requests of the members, without any thoughtful reasoned analysis based
upon the law. Rios, 64 M.J. at 569. Here that simply did not happen.
The record reveals that the military judge sought to clarify the difference
between having transcripts in the deliberation room and the ability for the panel to
rehear specific testimony in the courtroom if that testimony would aid in their
deliberations. This case is distinguished from the holdings in cases cited by
appellate defense counsel for the proposition that the judge erred in summarily
dismissing panel members’ request for additional witnesses or the replaying of
testimony. Id. Had he done so, this court may have reached a different conclusion.
Without such conduct, we do not find error. Rios, 64 M.J. at 569; see also
Lampani, 14 M.J. at 26 (holding that the court members “were at liberty to request
that witnesses be called or recalled or to have testimony reread by the court reporter
even though they had commenced their deliberations [, and,] to the extent that the
military judge indicated to the contrary, he was wrong.”); United States v. Lents, 32
M.J. 636, 638 (A.C.M.R. 1991) (military judge abused his discretion by summarily
denying the members request for additional evidence).
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Moreover, the defense did not object to the military judge’s denial of the
member’s general request to have a copy of the entire transcript brought back with
them into the deliberation room, nor did the defense seek to clarify the witness
requested or evidence sought. See Lampani, 14 M.J. at 27. “While we do not equate
this silence with a waiver of appellant’s right to have the court correctly instructed
by the judge,” we can infer, as the court did in Lampani, that this failure was
consistent with the defense strategy at trial. Id. “Whether defense counsel realized
that the judge had erred . . . he obviously perceived that his advice had not
prejudiced his client and we reach the same conclusion.” Id. Having found no error,
we do not reach the issue of prejudice to the appellant.
CONCLUSION
The findings of guilty and the sentence are AFFIRMED.
Senior Judge TOZZI and Judge CELTNIEKS concur.
FOR
FORTHE
THECOURT:
COURT:
JOHN P. TAITT
JOHN P. TAITT
Acting Clerk of Court
Acting Clerk of Court
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