

   
   
   
   U.S. v. Guthrie



UNITED STATES, Appellee
v.
James D. GUTHRIE, Staff Sergeant
U.S. Marine Corps, Appellant
 
No. 99-0306
Crim. App. No. 95-1697
 
United States Court of Appeals for the Armed
Forces
 
Argued January 12, 2000
Decided June 12, 2000
CRAWFORD, C.J., delivered the opinion of
the Court, in which GIERKE and EFFRON, JJ., and COX, S.J., joined. SULLIVAN,
J., filed an opinion concurring in part and in the result.

Counsel
For Appellant: Lieutenant Jonathan R. Goodman,
JAGC, USNR (argued); Lieutenant Omar R. Lopez, JAGC, USNR (on brief);
Lieutentant Commander Linda J. Lofton, JAGC, USN, and Lieutenant
Jennifer L. Eichenwuller, JAGC, USNR.
For Appellee: Lieutenant Janice K. O'Grady,
JAGC, USNR (argued); Colonel Kevin M. Sandkuhler, USMC, and Commander
Eugene E. Irvin, JAGC, USN (on brief).
Military Judge: James A. Freyer
 
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.


Chief Judge CRAWFORD delivered the opinion
of the Court.
Contrary to his pleas, appellant was convicted
of 3 specifications each of rape, burglary, and adultery, and 1 of disorderly
conduct, in violation of Articles 120, 129, and 134, Uniform Code of Military
Justice, 10 USC §§ 920, 929, and 934, respectively. The members
adjudged, and the convening authority approved, a sentence of a dishonorable
discharge, confinement for life, total forfeitures, and reduction to the
lowest enlisted grade. The Court of Criminal Appeals affirmed in an unpublished
opinion.
This Court granted review of the following
issues:


I
WHETHER THE GOVERNMENT VIOLATED APPELLANT'S
DUE PROCESS RIGHTS WHEN IT FAILED TO DISCLOSE RELEVANT AND MATERIAL EVIDENCE
THAT WAS FAVORABLE TO THE DEFENSE.

II
WHETHER THE MILITARY JUDGE COMMITTED PLAIN
ERROR BY NOT GIVING A SPILLOVER INSTRUCTION OR A LIMITING INSTRUCTION FOR
RULE 404(b) EVIDENCE.

III
WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT
TO PROVE THAT APPELLANT WAS GUILTY OF ADDITIONAL CHARGE I AND ITS SPECIFICATION
(RAPE), AND ADDITIONAL CHARGE II AND ITS SPECIFICATION (BURGLARY).

We affirm the decision of the Court of Criminal
Appeals for the reasons set out below.
Appellant's convictions stem from the rape
of a woman at Aberdeen Proving Ground, Maryland, and then of two women
at Fort Dix, New Jersey, between October 1991 and March 1993. After the
last rape, Fort Dix officials initiated a surveillance operation. Appellant
was caught peering into the bedroom window of a female petty officer. The
identity of the rapist was the disputed issue at trial; and accordingly,
central to both the Government and defense theories of the case.
The Government's proof included testimonial
and scientific evidence that showed striking similarities in the modus
operandi employed by the victims' attacker. As found by the Court
of Criminal Appeals:

Each of the rape victims had described being
grabbed from behind by a person of average height and build, who was inside
their residence in the early morning. Each victim's face was covered. Each
had tube socks placed on the hands and tape placed over the mouth. Each
victim was raped then threatened with reprisals if the rape were reported.
Each victim described the rapist's voice as whispery and kind of preppy.
The rapist was described as speaking clearly, but without any profanity.
Two of the victims said their assailant was wearing a condom; the other
didn't know. One victim said the rapist was wearing gloves. Two of the
victims said they could hear squeaking of rubber-soled shoes as the rapist
left.

In short, the Government alleged that one man
was responsible for the rapes and that person was appellant. The defense
did not actively contest the single-rapist theory. While conceding that
the evidence showed a single perpetrator, the defense was that the rapist
was someone other than appellant.
Prior to trial, appellant's individual military
counsel (IMC) made two timely requests for discovery: one for all documents
related to the offenses with which appellant was charged, and the other
for information regarding DNA testing. See RCM 701, Manual for Courts-Martial,
United States (1998 ed.). In several post-trial submissions, appellant
now claims he and his IMC were denied four documents: (1) a DNA report
dated 5 August 1993, finding fluid samples taken from the scene of the
Aberdeen rape did not match appellants; (2) a sworn statement from the
Aberdeen victim in which she relates an incident of accidental intrusion
into her residence by two males, neither of whom could have been appellant;
(3) mental health notes which purport to differ with the second victim's
testimony during sentencing; and (4) an evidence report discussing fibers
and hairs removed from the scene of the third rape. When considered collectively,
appellant argues that this evidence puts the trial "in such a different
light as to undermine confidence in the verdict." Kyles v. Whitley,
514 U.S. 419, 435 (1995); see United States v. Romano, 46
MJ 269, 272-73 (1997).
Discovery in military practice is open, broad,
liberal, and generous. Art. 46, UCMJ, 10 USC § 846; United States
v. Williams, 47 MJ 621, 625 (Army Ct. Crim. App. 1997), affd,
50 MJ 436, 439 (1999); United States v. Simmons, 38 MJ 376, 380
(CMA 1993). The duty to disclose extends to impeachment as well as exculpatory
evidence. Strickler v. Greene, ___ U.S.___, 119 S. Ct. 1936, 1948
(1999), citing United States v. Bagley, 473 U.S. 667, 676 (1985).
Appellant bears the burden of proving that the Government withheld discoverable
evidence. Kyles, 514 U.S. at 434-35; East v. Scott, 55 F.3d
996, 1002 (5th Cir. 1995). We are not persuaded that trial counsel
failed to disclose three of the items appellant claims he did not receive.
Assuming that appellant did not receive the fourth item, he has suffered
no prejudice.
With regard to the 5 August 1993 DNA lab report
and the evidence report discussing fibers and hairs removed from the scene
of the third rape, we find no conflict in the affidavits. Trial counsel
categorically states that he gave the 5 August 1993 DNA test results report
to defense counsel. While not specifically remembering the evidence report,
he says, "I turned over to the defense counsel all scientific reports of
which I was aware." Defense counsel's affidavit is silent concerning these
documents. Thus, we are not faced with conflicting affidavits from counsel.
There is nothing in the record of trial to show that defense counsel was
unprepared during the testimony of the expert witnesses. Appellant's naked
assertion of nondisclosure, unsupported by evidence, is without merit.
The mere submission of an affidavit by an appellant does not trigger the
need for a post-trial evidentiary hearing. United States v. Ginn,
47 MJ 236, 248 (1997).
With regard to the sworn statement from the
Aberdeen victim, trial counsel avers that he gave it to the IMC, and the
statement was discussed by trial and defense counsel. Defense counsel recalls
receiving "at least one" of Mrs. W's statements during discovery, but is
not "absolutely certain whether or not [she] received a copy of the statement
in question." IMC's uncertainty does not conflict with trial counsel's
affidavit. Counsel's speculation that her cross-examination of the witness
might have been different does not set forth the facts necessary to warrant
further proceedings. See Ginn, supra at 248.
Regarding the mental health notes, IMC attests
that she does "not believe" she received these notes "in discovery." Trial
counsel's affidavits are silent. Thus, there is no conflict in affidavits.
Assuming, without deciding, that the notes were not disclosed and the Government's
failure to disclose these notes was error, we must test for prejudice.
Art. 59(a), UCMJ, 10 USC § 859(a). We find no prejudice.
Defense counsel chose not to cross-examine
the second victim after she testified during sentencing. There is some
difference between the allegedly non-disclosed notes and her sentencing
testimony regarding the impact of her being raped. However, these differences
are minimal, semantic in nature, and thus subject to different interpretations.
Finally, we are satisfied that whatever differences exist between the victim's
testimony and the social worker's notes, they would not have changed the
IMC's tactical decision to treat this victim gingerly during cross-examination,
if indeed there was any cross-examination at all.
The remaining granted issues -- lack of a spillover
instruction and the legal sufficiency of the evidence to convict him of
the Aberdeen rape -- are closely related. He avers that he was convicted
of the offenses at Aberdeen (the most remote in time -- October 1991 --
and the ones for which the scientific evidence was weakest) because the
military judge failed to properly instruct the court members.
Absent plain error, failure to object to instructions
as given or to request additional instructions forfeits the issue on appeal.
United States v Maxwell, 45 MJ 406, 426 (1996); RCM 920(f). In this
case, the military judge reviewed his proposed instructions with counsel
during a session under Article 39(a), UCMJ, 10 USC § 839(a), prior
to instructing the members. IMC had no requests for additional instructions.
The military judge did not suggest and the IMC did not request a spillover
instruction. After trial counsel's closing argument on findings, the military
judge gave IMC an opportunity to request an alibi instruction. Counsel
declined. After instructing the court members, the military judge again
asked counsel for objections or requests for additional instructions. Counsel
had no objections. Accordingly, with three clear opportunities to request
a spillover instruction, we find the IMC forfeited the issue.
The burden of persuasion in establishing plain
error lies with appellant. United States v. Reist, 50 MJ 108, 110
(1999). Although this Court has often emphasized the importance of a spillover
instruction, United States v. Kerr, 51 MJ 401, 406-07 (1999); United
States v. Southworth, 50 MJ 74 (1999); United States v. Haye,
29 MJ 213 (CMA 1989); United States v. Hogan, 20 MJ 71 (CMA 1985),
we find no plain error, under the facts of this case, in the failure to
give that instruction.
First, the defense theory of this case did
not lend itself to such an instruction. As seen in the IMC's closing argument,
the defense acknowledged that the three rapes were probably perpetrated
by one man, who not only watched his victims and calculated his crime,
but who also watched appellant in order to "set him up" to be convicted.
An instruction reminding the members to keep the evidence of each offense
separate and apart from the others, that each offense must stand on its
own, and not to infer guilt of one offense after a finding of guilt of
a separate, similar crime would have added nothing to the defense's trial
strategy.
Next, appellant was convicted because the Government
used distinct evidence to prove he raped Mrs. W. in October 1991. See
Southworth, 50 MJ at 77-78. Unlike the situations we encountered
in Hogan and Haye, we find no merger of the evidence relating
to each rape and burglary here. Thus, we are confident that this appellant
was not convicted of the Aberdeen rape based on evidence of a general criminal
disposition. See Hogan, 20 MJ at 73 (citing United States
v. Lotsch, 102 F.2d 35, 36 (2d Cir.), cert. denied, 307
U.S. 622 (1939)). Trial counsel's use of similar modus operandi
evidence to show how the perpetrator prevented victim identification, while
permissible under Mil. R. Evid. 404(b), did not lead to an impermissible
spillover of the evidence surrounding the Fort Dix offenses and unfairly
convict appellant of raping Mrs. W.
Appellant's contention that he was convicted
of the Aberdeen rape solely because he and Mrs. W were neighbors; he had
successfully undergone a vasectomy, and he may have committed other rapes
(Final Brief at 18) is not convincing. Separate and apart from the evidence
of the Fort Dix rapes, the Government showed appellant arose at 4:15 a.m.
on October 4, 1991, the morning Mrs. W was raped, but did not leave for
work until 6:20 a.m. Appellant lived across the street from Mrs. W. Mrs.
W's husband left their quarters around 5:15 a.m. for physical training.
When Mrs. W returned to her bedroom around 5:30 a.m. after showering, she
was attacked. There were no "signs of forced entry" at the W's quarters.
Both appellant and Mrs W's quarters had identical sliding glass doors at
the rear of their respective residences. This door, when locked, could
be opened from the outside in "less than about a second." Mrs. W never
heard a car drive away after her attacker fled. Finally, scientific analysis
of the fluids found in the victim's clothing, bed sheets, and associated
articles pointed to an "AB secretor," such as appellant.
Having reviewed the evidence in its entirety,
we hold that the failure to give a spillover instruction did not constitute
plain error. United States v. Powell, 49 MJ 460, 463 (1998). After
examining the evidence upon which appellant was convicted of the Aberdeen
offenses, we also hold that it is legally sufficient. Jackson v. Virginia,
443 U.S. 307, 319 (1979); United States v. Turner, 25 MJ 324 (CMA
1987).
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.


SULLIVAN, Judge (concurring in part and in
the result):
Individual defense counsel did not raise a
claim at trial that she was denied requested discovery under RCM 701. Nevertheless,
after appellants trial, in his RCM 1106(f)(4) response to the staff judge
advocates post-trial recommendation, appellant submitted an affidavit
stating: "The Defense was not provided a copy of the sworn statement
of Mrs. [W], taken at Fort Benning, Ga. on April 23, 1993 . . . . The
Defense did not receive a copy of the division report from Marilyn
G. Chase, of the CID Laboratory located at Fort Gilliam, Georgia, dated
on August 5, 1993 . . . ." (Emphasis added.) On appeal before the Court
of Criminal Appeals he further averred in his pleadings that two other
documents were not provided to the defense, i.e., mental health
notes pertaining to the second alleged victim (HH) in this case, and a
second evidence report discussing fibers and hairs removed from the third
alleged rape victim (LH).
I would resolve this case on the basis of this
Courts decision in United States v. Ginn, 47 MJ 236, 248 (1997).
Appellants two most recent post-trial claims of discovery violations are
not supported by the record or post-trial affidavits, but only by averments
in the pleadings. In this regard, I note that trial defense counsels equivocal
response (she stated that she did "not believe" she received a copy of
the mental health notes,) is not sufficient to raise this claim. As for
his first two claims, they are supported by his affidavit but they consist
of "speculative or conclusory observations" as to defenses conduct as
a whole. Under Ginn, supra at 248, these claims can be rejected
without ordering a factfinding hearing.

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