United States v. Staff Sergeant ANTHONY POWELL

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
LIND, KRAUSS, and PENLAND
Appellate Military Judges
AT,
Petitioner
v.
Colonel JEFFERY D. LIPPERT, U.S. Army, Military Judge,
Respondent
and
Staff Sergeant ANTHONY POWELL
U.S. Army,
Real Party in Interest
ARMY MISC 20150387
11 June 2015
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SUMMARY DISPOSITION AND ACTION ON PETITION FOR
EXTRAORDINARY RELIEF IN THE NATURE OF A WRIT OF MANDAMUS
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Per Curiam:
The real party in interest is charged with two specifications of abusive sexual
contact, one specification of sodomy, and three specifications of assault
consummated by a battery in violation of Articles 120, 125, and 128, Uniform Code
of Military Justice, 10 U.S.C. §§ 920, 925, 928 (2012 & Supp. I 2014).
Petitioner, through special victims’ counsel, seeks extraordinary relief in the
nature of a writ of mandamus vacating the military judge’s order that petitioner’s
confidential records of communication with a victim advocate be produced for in
camera review pursuant to Military Rule of Evidence [hereinafter Mil. R. Evid.] 514.
Petitioner also requests this court grant her motion for oral argument on this issue
and stay the court-martial proceedings pending our decision on the matter. We
conclude that issuance of the requested writ is inappropriate and unnecessary under
the circumstances and, therefore, we need not grant oral argument or issue a stay.
Petitioner is, of course, correct that communications by a victim to a victim
advocate, acting in that capacity, are confidential if the communications were not
intended to be disclosed to a third person. Mil. R. Evid. 514(b)(3). She here
complains that the judge erred by declaring her communications to the victim
advocate as not confidential because she expressed her intent to make an unrestricted
POWELL—ARMY MISC 20150387
report of sexual assault. While review of Army Regulation 600-20 on the subject of
unrestricted reporting suggests that the details of the reported assault communicated
to a victim advocate in a case of an unrestricted report would not be privileged under
Mil. R. Evid. 514, the evidence in this case adequately establishes that petitioner’s
intent to disclose was limited to the mere allegation s that a sexual assault was
perpetrated and her identity as victim. However one might interpret the pertinent
regulations, it is the victim who defines the scope of information to be d isclosed to
third persons under Mil. R. Evid. 514. Therefore, anything in the judge’s order that
might be interpreted otherwise would be incorrect. 1
Petitioner further complains that the judge erred by failing to enforce the
threshold requirements for the production of records for the purpose of in camera
review under Mil. R. Evid. 513 to this situation under Mil. R. Evid. 514. See United
States v. Klemick, 65 M.J. 576, 580 (N.M. Ct. Crim. App. 2006). However, whether
or not the Klemick threshold requirements for Mil. R. Evid. 513 apply to matters
under Mil. R. Evid. 514, the accused here adequately demonstrated a reasonable
likelihood that petitioner’s communications to the victim advocate about the very
allegations that serve as the basis for the char ges against him include evidence
admissible under Mil. R. Evid. 514(d)(6) that may not otherwise be discovered. 2
See id. (“This standard is not high, because we know that the moving party will
often be unable to determine the specific information contain ed in [the requested]
records.”). Under these circumstances, and in light of the lesser burden of
production in any such matter, we find the judge did not abuse his discretion by
ordering the production of the records in question for in camera review in
accordance with Mil. R. Evid. 514(d)(6) and (e). 3
1
The judge’s rulings are ultimately confusing in that he seems to declare all of the
Sexual Harassment/Assault Response and Prevention (SHARP) records to be non -
confidential and unprotected by Mil. R. Evid. 514 yet, nevertheless, orders their in
camera review pursuant to Mil. R. Evid. 514.
2
We reject petitioner’s arguments that the requested information cannot be
constitutionally required as a matter of law at this stage of the proceedings. See Mil.
R. Evid. 514(d)(6). For example, the requirement that Brady v. Maryland, 373 U.S.
83 (1963), material be disclosed is certainly applicable. See United States v.
Williams, 50 M.J. 436, 440-41 (C.A.A.F. 1999).
3
The rule provides that the military judge m ay examine the evidence or a proffer
thereof in camera, if such examination is necessary to rule on the motion to compel
discovery of the records. Mil. R. Evid. 514(e)(3).
2
POWELL—ARMY MISC 20150387
CONCLUSION
The Petition for Extraordinary Relief in the Nature of a Writ of Mandamus,
the Motion for Oral Argument, and the Application for a Stay of the Proceedings are
DENIED.
FOR THE
FOR THE COURT:
COURT:
MALCOLM
MALCOLM H. H. SQUIRES,
SQUIRES, JR.
JR.
Clerk
Clerk of
of Court
Court
3