

   
   
   
   U.S. v. Avery



UNITED STATES, Appellee
v.
Joseph K. AVERY, Jr., Specialist
U.S. Army, Appellant
 
No. 96-1157/AR
Crim. App. No. 9500062
 
United States Court of Appeals for the Armed
Forces
Argued October 27, 1999
Decided April 14, 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: Captain Thomas Jay Barrett
(argued);
Colonel John T. Phelps II, Lieutenant
Colonel Adele H. Odegard, and Major Leslie A. Nepper (on brief).
For Appellee: Captain Troy A. Smith
(argued); Colonel
Russell S. Estey, and Lieutenant
Colonel Eugene R. Milhizer
(on brief).
Military Judge: Kenneth D. Pangburn
 
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.


Chief Judge CRAWFORD delivered the opinion
of the Court.
A general court-martial composed of officer
and enlisted members convicted appellant, contrary to his pleas, of rape
and adultery, in violation of Articles 120 and 134, Uniform Code of Military
Justice (hereinafter UCMJ), 10 USC §§ 920 and 934, respectively.
The convening authority approved the sentence of a dishonorable discharge,
6 years' confinement, total forfeitures, and reduction to the lowest enlisted
grade. On May 17, 1996, the Army Court of Criminal Appeals affirmed the
findings and sentence.
On December 15, 1997, this Court set aside
the decision of the Court of Criminal Appeals and remanded the case to
that Court to make findings of fact and conclusions of law as to:



(1) whether the Government failed to disclose
exculpatory material to appellant prior to trial and, if so, what evidence
was not disclosed; (2) whether defense counsel already possessed all or
part of the information; (3) whether defense counsel, when requested post-trial
to reveal the information she possessed, erroneously claimed privilege;
and (4) whether any such failure by the Government to disclose constituted
reversible error.



On April 17, 1998, the Court of Criminal Appeals
ordered the prosecutors and the trial defense counsel to produce affidavits
answering the issues mandated by this Court. All counsel provided affidavits
in response to the court order. On July 21, 1998, the Army Court affirmed
the findings and sentence.
On October 27, 1999, this Court heard argument
on the following issue:



WHETHER APPELLANT WAS PREVENTED A MEANINGFUL
OPPORTUNITY TO CROSS-EXAMINE THE CRITICAL WITNESS AGAINST HIM, THEREBY
DENYING HIS 6TH AMENDMENT RIGHT TO CONFRONT WITNESSES, DUE TO
THE GOVERNMENTS FAILURE TO DISCLOSE EXCULPATORY EVIDENCE REQUESTED DURING
DISCOVERY.



We hold that appellant waived any error regarding
the Governments failure to disclose.

FACTS
On November 22, 1994, at appellants Article
32, UCMJ, 10 USC § 832, investigation, trial defense counsel learned
that the victim, Private First Class (PFC) C, made similar allegations
of rape 1 year earlier while stationed at Fort Hood, Texas. Despite a defense
pretrial discovery request for the Fort Hood Criminal Investigation Detachment
(CID) report involving the prior rape allegation by PFC C, it was not given
to defense counsel until trial was completed.
At an Article 39(a), UCMJ, 10 USC § 839(a),
session during trial, the Government made a motion in limine
to preclude the defense from introducing evidence of the victim's prior
rape allegation at Fort Hood. Although the prosecutor did not have a copy
of the Fort Hood CID report to review at the time of his motion in
limine, he argued that there did not appear to be evidence that
this report was false. The factual references in the Governments motion
in
limine repeat PFC C's assertions made during the Article 32 investigation.
When asked by the military judge to respond to the Governments motion,
defense counsel stated:



I did make a discovery request for this and
basically, because I didnt receive this information  the Government has
prevented me from having a good faith basis to even ask this question.
I dont intend to go into it at any rate, but I did  I would like it on
the record that I did make a discovery request.



Following this statement, the military judge questioned
defense counsel about the discovery request, at which time defense counsel
made no motions to compel the discovery of the CID report or to request
a continuance until the CID report was received. After this exchange, the
military judge concluded "[a]t this point" that the report of the victim's
prior allegation of rape had no apparent relevance "to any issue before
the court" and granted the Government's motion.
In mid-February 1995, while preparing post-trial
submissions, defense counsel again requested the Fort Hood CID report and
received it soon thereafter. Subsequent to the receipt of the CID report,
a post-trial Article 39(a) session was held concerning a sleeping courtmember.
At no time during this session did defense counsel raise any issue pertaining
to possible uses of the CID report then in her possession.

DISCUSSION
The Governments failure to turn over the CID
report of the victims prior rape allegation prior to trial is the crux
of this appeal. Appellant argues that this failure on the part of the Government
prevented an effective cross-examination of the victim and, thus, violated
his Sixth Amendment right to confront the witnesses against him.
The Government is required to produce evidence
that is relevant, material, and favorable to the accused. RCM 701, Manual
for Courts-Martial, United States (1994 ed.);*
United States v. Hart, 29 MJ 407 (CMA 1990); United
States v. Dorsey, 16 MJ 1, 5 (CMA 1983). This includes disclosure of
information which may expose a witness motivation for falsifying a rape
complaint. Olden v. Kentucky, 488 U.S. 227, 232 (1988). Appellant
correctly argues that the "exposure of a witness motivation in testifying
is a proper and important function of the constitutionally protected right
of cross-examination." Id. at 231, quoting Davis v. Alaska,
415 U.S. 308, 316-17 (1974), citing
Greene v. McElroy, 360 U.S.
474, 496 (1959).
The Supreme Court has also noted that "courts
indulge every reasonable presumption against waiver of fundamental constitutional
rights" and do not presume acquiescence in relinquishment of these rights.
Johnson
v. Zerbst, 304 U.S. 458, 464 (1938). Thus, waiver is effective only
if it is knowingly and intelligently rendered. Id. Additionally,
we have required that waiver be an affirmative action and not merely a
failure to object. United States v. Smith, 50 MJ 451, 455-56 (1999),
quoting United States v. Mundy, 2 USCMA 500, 502, 9 CMR 130, 132
(1953). In light of this precedent and after considering the facts of the
present case, we hold that the defense affirmatively waived any objection
to the Government's nondisclosure.
After learning of the victim's prior allegation
of rape, defense counsel asked for the CID report of this allegation and
subsequent investigation. Although the report had not been given to counsel
when trial commenced, defense counsel did not request a continuance from
the military judge. Nor did the defense make a motion to compel discovery
of the CID report. Instead, when asked by the military judge to respond
to the prosecutions motion in limine defense counsel replied, "I
don't intend to go into it [the victim's prior rape allegation against
another soldier] at any rate...."
In Smith, 50 MJ at 456, this Court noted
that "[n]o magic words are required to establish waiver. . . . [It is]
more than sufficient to show that defense counsel made a purposeful decision
to agree" with the military judges ruling. In this case, defense counsel
was clear about her intent to refrain from questioning the witness/victim
concerning the prior allegation of rape. Counsel need not have literally
told the judge that she waived the issue of the Governments failure to
produce discovery. Her statement that "I dont intend to go into [the prior
rape allegation] at any rate" is sufficient. Although defense counsel had
other options, such as asking for a continuance, she chose to forgo this
issue at trial, which was in her tactical discretion. See United
States v. Voorhees, 50 MJ 494, 500 (1999) (this Court will not second
guess trial defense counsels tactical decision to forgo possible objection).
After the trial had concluded, the defense
received a copy of the CID report from Fort Hood. Subsequently, at a post-trial
Article 39(a) session, the defense never mentioned the newly acquired CID
report. If something in that report had been misrepresented in the Governments
motion in limine, or if the defense felt it had been cheated
out of effective cross-examination by being denied this report, it would
have been appropriate to raise this issue at the Article 39(a) hearing.
The defense, however, said nothing.
Next we test for plain error. This Court set
forth the standard of plain error in military practice in the case of United
States v. Powell, 49 MJ 460 (1998). We held that the appellant has
the burden to show plain error. Id. at 465. Once the appellant has
"met his burden of persuasion ... the burden shift[s] to the Government
to show that the error was not prejudicial." Id. Plain error occurs
when there is error that is clear or obvious which "materially prejudices
the substantial rights of the accused." Id., quoting Art. 59(a),
UCMJ, 10 USC § 859(a).
The Government erred in this case by failing
to provide the defense with the requested discovery before trial began.
However, the defense had a number of opportunities to remedy this situation
by requesting a continuance to compel discovery and chose not to do so.
In light of these opportunities, we cannot say that appellants substantial
right to confront the witnesses against him was materially prejudiced.
In any event, the nonproduction of the CID report at trial did not have
an unfair prejudicial impact on appellant because the defense made a tactical
decision not to present evidence of the victims prior rape allegation
against another soldier. Moreover, there was no evidence or indication
in the report that the victims allegations were false.
Under the circumstances of this case, we find
that defense counsel waived any error on the part of the Government to
produce the requested discovery and that no plain error exists.
The decision of the United States Army Court
of Criminal Appeals is affirmed.


SULLIVAN, Judge (concurring in part and in
the result):
I would face the granted issue head on. The
core of appellant's complaint is that he was denied information which would
have helped him cross-examine and impeach the alleged victim of rape in
his case. See Davis v. Alaska, 415 U.S. 308 (1974). However,
the record in the instant case shows that appellant and his defense counsel
had most of the information on the prior allegation of rape by the alleged
victim at the time of his Article 32 hearing and certainly prior to trial.
In addition, looking at the undisclosed trial counsel's opinion (that the
alleged victim's prior complaint of rape "was very weak") in light of the
entire record, it is evident that the prosecutor's decision not to prosecute
the prior rape cannot reasonably be considered as exculpatory evidence
in the sense of Davis v. Alaska.
In the case at bar, there was no finding by
any court that the victim's prior rape accusation was false. There also
was no hint from the victim that she had falsely reported the prior rape.
In addition, there was evidence that the perpetrator in the prior rape
may have made some damaging admissions indicating that he did rape her.
See
Avery, No. 9500062, slip. op. at 4, 10 (Army Ct.Crim.App. July 21,
1998). Thus, it is clear that appellant has failed to prove a reasonable
probability of prejudice in this case. Accordingly, since there was no
significant impairment of the right to present a defense, I would affirm
on this basis.
See United States v. Scheffer, 523 U.S. 303,
317 (1998).
FOOTNOTE:
* This provision is
unchanged in the 1998 Manual.

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