                         UNITED STATES, Appellee

                                         v.

                    Shawn R. Hull, Staff Sergeant
                      U.S. Air Force, Appellant

                                  No. 11-0131
                           Crim. App. No. 37470

       United States Court of Appeals for the Armed Forces

                          Argued April 21, 2011

                          Decided June 10, 2011

EFFRON, C.J., delivered the opinion of the Court, in which
BAKER, ERDMANN, STUCKY, and RYAN, JJ., joined.


                                     Counsel


For Appellant: Major Bryan A. Bonner (argued); Lieutenant
Colonel Gail E. Crawford and Major Darrin K. Johns (on brief);
Colonel Eric N. Eklund.


For Appellee: Captain Joseph J. Kubler (argued); Colonel Don M.
Christensen and Gerald R. Bruce, Esq. (on brief).


Military Judge:    Ronald A. Gregory




            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Hull, No. 11-0131/AF


    Chief Judge EFFRON delivered the opinion of the Court.

    A general court-martial composed of a military judge sitting

alone, convicted Appellant, pursuant to mixed pleas, of

dereliction of duty (providing alcohol to a minor), rape, and

adultery, in violation of Articles 92, 120, and 134, Uniform

Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 920, 934

(2006).   The sentence adjudged by the court-martial and approved

by the convening authority included a dishonorable discharge,

confinement for three years, and reduction to E-1.   The United

States Air Force Court of Criminal Appeals affirmed.   United

States v. Hull, No. ACM 37470, 2010 CCA LEXIS 342, at *7, 2010

WL 4069060, at *3 (A.F. Ct. Crim. App. Sept. 15, 2010)

(unpublished).

     On Appellant’s petition, we granted review of the following

issue:

           WHETHER THE STAFF JUDGE ADVOCATE ERRED IN
           ADVISING THE CONVENING AUTHORITY, PURSUANT
           TO RULE FOR COURTS-MARTIAL (R.C.M.) 1106,
           THAT NO NEW TRIAL WAS WARRANTED, AND WHETHER
           THE CONVENING AUTHORITY ERRED BY FAILING TO
           ORDER A NEW TRIAL DESPITE THE STAFF JUDGE
           ADVOCATE’S ACKNOWLEDGEMENT THAT APPELLANT
           HAD PRESENTED NEW EVIDENCE THAT FELL WITHIN
           THE PARAMETERS OF R.C.M. 1210.

     For the reasons set forth below, we conclude that the staff

judge advocate (SJA) did not err in his advice to the convening

authority, and that the convening authority did not abuse her

discretion in denying Appellant’s request for a new trial.


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United States v. Hull, No. 11-0131/AF


                       I.    THE NEW TRIAL REQUEST

      Subsequent to the adjudication of findings and sentence,

but prior to the convening authority’s action, information came

to the attention of defense counsel regarding the credibility of

a key prosecution witness.        Based upon this information, the

post-trial submissions by the defense to the convening authority

under Rule for Court-Martial (R.C.M.) 1105 included a request

for a rehearing pursuant to R.C.M. 1107(c)(2)(B).

      The convening authority’s decision to deny the defense

request provides the focus for the present appeal.         To place the

appellate consideration of these matters in context, Part A

describes the pertinent testimony at trial.          Part B describes

the post-trial proceedings, including the defense request for a

new trial, the recommendation by the SJA, and the action by the

convening authority.

                            A.   TRIAL PROCEEDINGS

1.   The prosecution’s primary witnesses

      The prosecution relied primarily on three witnesses to

establish the essential facts on the underlying charges:

Officer Ryan Freeman, a civilian law enforcement official who

investigated the allegations in the immediate aftermath of

the alleged rape; a neighbor, Daniel Yarbrough; and the

complainant, TB.




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United States v. Hull, No. 11-0131/AF


        Officer Freeman testified that on the night of the

incident, he responded to a call indicating that a rape had

taken place at an apartment complex near Hill Air Force Base,

Utah.    Officer Freeman stated that he obtained statements from

TB and her friend, Jessica Hutchison.    Over defense objection,

the military judge permitted Officer Freeman to relate details

of the statements provided to him by TB and Ms. Hutchison on the

theory that the statements constituted excited utterances under

Military Rule of Evidence 803(2).

        According to Officer Freeman, Ms. Hutchison related the

following information in her verbal statement.    On the night of

the incident, she had spent the evening in the apartment with TB

and Appellant.    TB told Ms. Hutchison that her boyfriend was

coming over to pick her up, and TB went into her bedroom to

change clothes.    Ms. Hutchison subsequently heard some noises

coming from TB’s room.    When she entered TB’s bedroom to

investigate, she saw TB with her face on the bed, repeating the

word “No.”    Appellant, who was naked from the waist down, was

positioned on top of TB.    Upon this discovery, Ms. Hutchison ran

to the apartment of her neighbor in order to call the police.

Ms. Hutchison told Officer Freeman that Appellant had “possibly

raped” TB.    In a written statement provided to Officer Freeman,

Ms. Hutchison added that when she walked into TB’s room to




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United States v. Hull, No. 11-0131/AF


investigate the noises, TB “was saying No No No” and Appellant

“had her pinned down behind her raping her.”

      TB’s neighbor, Daniel Yarbrough, testified that at

approximately 11:00 p.m., he heard a woman’s voice at his door

“screaming hysterically.”    He described it as a bloodcurdling

scream” of “[h]elp me.”     He opened the door and saw Ms.

Hutchison, who was “topless,” being followed by Appellant, whose

“pants were halfway on, half off.”     According to Mr. Yarbrough,

the two individuals at his door were screaming at each other.

After he called 911 to report the altercation, he heard noises

coming from TB’s apartment “like furniture being bumped around

and . . . people struggling, fighting.”    Subsequently, he

entered the apartment, which he described as being in “disarray

. . . like people had been messing around in there, fighting

around in there.”   He saw TB, who was crying.

      TB provided a similar description of the evening’s events.

She stated that after entering her bedroom, Appellant proceeded

to remove her clothes, push her on the bed, and rape her.

2.   The defense at trial

      The defense took the position that TB and Appellant had

engaged in consensual sexual activity, and that TB had not been

truthful in claiming that she had been raped.    The defense

relied primarily upon the trial testimony of Ms. Hutchison, who

had significantly revised her original account of the incident.


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United States v. Hull, No. 11-0131/AF


At the time of the incident, Ms. Hutchison was dating Appellant,

had recently given birth to Appellant’s child, and had recently

moved into TB’s apartment where she and her young child lived in

TB’s living room.   In contrast to her initial statement to

Officer Freeman, Ms. Hutchison testified at trial that Appellant

and TB “had been flirting that night,” and that she observed

“what was about to be consensual sex” when she entered TB’s

bedroom.

     At trial, Ms. Hutchison indicated that TB may have been

motivated to make a rape allegation in response to Ms.

Hutchison’s reaction upon seeing TB and Appellant in the

bedroom.   Ms. Hutchison described herself as a person who tends

to “overreact.”   She added that upon discovering Appellant and

TB together in the bedroom, she became the angriest that she had

“ever been.”   When she confronted TB after the discovery, Ms.

Hutchison “was very mad, very mad, and [she] was like . . . Was

that rape?”    At this point she described her demeanor as

“hostile” towards TB, and testified that she “would have

probably hit her or done something violent to her” if TB had

informed her that the actions had in fact been consensual.    In

addition, because she was taller and larger than TB, it “would

have been very easy, and I’m sure she knew it, for me to hurt

her in some way.”




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United States v. Hull, No. 11-0131/AF


        In response to questions at trial as to why she had changed

her description of the events -- from an initial

characterization of rape to her trial testimony of a consensual

romantic encounter -- Ms. Hutchison testified that she had

initially agreed with TB that a rape had occurred because she

was “extremely mad” at Appellant and wanted him “to pay” for

cheating on her.    She stated that at the time “it was easier to

believe that it was rape than that it was totally consensual,

because then at that point it would mean that he had more or

less betrayed my trust.”

        The defense also directly attacked TB’s credibility at

trial.    The defense sought to portray TB’s description of the

alleged rape as lacking consistency from one telling to the

next.    In that regard, the defense focused on TB’s changing

descriptions, over time, regarding the timeline of events, the

location of her clothing, her positions on the bed, and

Appellant’s actions.

        In response to the defense case, the Government relied

primarily upon the evidence obtained on the night of the

incident.    The Government argued that Ms. Hutchison’s initial

verbal and written statements, TB’s initial verbal and written

statements, the testimony of TB’s neighbor, and Officer

Freeman’s description of the evening’s events all led to the

conclusion that Appellant had raped TB.    In addition, the


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United States v. Hull, No. 11-0131/AF


Government argued that Ms. Hutchison’s later contrary trial

testimony lacked credibility.    Specifically, the Government

contended that Ms. Hutchison had “a motive to lie” and to

protect Appellant because she continued to receive financial

assistance from him.     In support of this proposition, the

Government noted that Appellant currently paid Ms. Hutchison’s

gas, electric, garbage, sewer, and water bills, and also

provided medical care, clothes, and toys for their young child.

                    B.    POST-TRIAL PROCEEDINGS

1.   The defense request for a new trial

      On January 29, 2009, the military judge entered a finding

of guilty on the charge that Appellant had raped TB.    On March

17, 2009, the SJA served on the defense the SJA’s recommendation

to the convening authority under R.C.M. 1106, which recommended

approval of the findings and sentence.

      The area defense counsel submitted a clemency request to

the convening authority on April 9, 2009, requesting that the

convening authority “set aside AB Hull’s conviction” or, in the

alternative, “grant a new trial” because of “new evidence that

was not available at trial.”    Counsel attached an unsworn

statement signed by Taycee Smith, dated April 8, 2009, which

contained the following two paragraphs:

           1. I am Taycee Smith, a resident of the
           State of Utah. I worked at Citibank
           Financial with [TB] in October of 2008. I


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United States v. Hull, No. 11-0131/AF


          knew [TB] from work. I am aware that [TB]
          claimed to have been raped by SSgt Shawn
          Hull. [TB] told me on two occasions that
          what happened between SSgt Hull and [TB] was
          not rape. [TB] stated that everything had
          been planned and that it was all consensual.

          2. I was not present with [TB] and SSgt
          Hull when the alleged rape occurred. I only
          know what [TB] told me afterwards. She did
          not tell me why she claimed that it was
          rape, she only told me that it was not rape,
          that what happened was consensual.

Below her signature, Ms. Smith added the following handwritten

note, followed by her initials:   “Conrad Quick heard [TB] say

this as well.”

     The defense submission offered the following background on

the development of this information.    According to defense

counsel, Ms. Micaela Gonzalez, a defense witness, had informed

Ms. Smith that Appellant had been found guilty of raping TB, at

which time Ms. Smith told Ms. Gonzalez that TB had described the

incident as consensual.   Ms. Gonzalez relayed this information

to Ms. Hutchison, who in turn informed the defense on March 23,

2009, more than a month after the conclusion of trial.

     Defense counsel contended that the newly discovered

evidence warranted relief because there was “no question [that]

this evidence could have made a difference” at trial.    According

to the defense, the “only evidence that an actual rape occurred

was [TB]’s testimony” at trial, and that even “without Ms.

Smith’s new evidence, there were several problems with [TB]’s


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United States v. Hull, No. 11-0131/AF

testimony and her recollection of the event.”    Defense counsel

added that TB had “given multiple accounts as to what happened

and they have all changed significantly from each other.”     The

defense counsel concluded by contending that with “Miss Smith’s

new evidence to place [TB]’s testimonial inconsistencies in

perspective, it is very likely that AB Hull would not be found

guilty at all.”

      The senior defense counsel submitted a similar request to

the convening authority.   The senior defense counsel’s request

asked the convening authority to “set aside the conviction” or,

in the alternative, “order a rehearing (i.e., a new trial)

pursuant to RCM 1107(c)(2)(B).”

2.   The Government’s inquiry

      The Government sought to obtain further details regarding

the information from Ms. Smith, but ran into difficulties.

When trial counsel attempted to interview Ms. Smith, she proved

uncooperative and evasive.   Trial counsel made multiple

unsuccessful attempts to call Ms. Smith, and left various

messages that went unanswered.    When he subsequently reached Ms.

Smith by phone on April 14, 2009, she agreed to a short in-

person interview at her home the next morning.   When trial

counsel showed up for the meeting the next day, however, Ms.

Smith was not present.   She did not respond to trial counsel’s

ensuing phone calls.


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United States v. Hull, No. 11-0131/AF

     On April 17, 2009, trial counsel was able to reach Ms.

Smith by phone.   He emphasized the importance of an interview in

view of the consequences for SSgt Hull, who was facing a three-

year prison term.   She declined to meet with the trial counsel,

but agreed to address a few questions during the phone call.

When the trial counsel asked Ms. Smith as to whether she had

been truthful in her written statement, she said:   “‘I don’t

know how true the statement is.    I didn’t believe it.   I didn’t

believe much of anything that [TB] or Jessica Hutchison said

because every day the story changed.’”   When trial counsel asked

her to provide contact information for Conrad Quick, the other

party mentioned in her statement, she responded:    “‘I asked him

if he heard [TB] say it and he said he must not have been paying

attention at the time.’”   She did not provide trial counsel with

any contact information for Mr. Quick.   In a subsequent phone

call, she stated that she could not identify the date or

location of her conversation with TB, other than noting that it

was “at a party in Layton, likely during the month of Oct 08.”

Ms. Smith also noted that TB had made a similar statement “in a

restaurant in Roy, also in Oct 08.”

     Over the next three days, trial counsel again tried to

contact Ms. Smith in an effort to compare Ms. Smith’s statement

with TB’s statements.   Ms. Smith, however, did not return his

phone messages.   At that point, trial counsel summarized the


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United States v. Hull, No. 11-0131/AF

developments in a memorandum entitled:    “Attempted Witness

Interview:    Taycee Smith.”   After setting forth the details of

his efforts to contact Ms. Smith and her brief remarks to him,

he concluded:

             Ms. Smith’s oral statement that she really
             didn’t believe what [TB] or Ms. Hutchison
             said, combined with her inability to recall
             the place or month of the conversation casts
             significant doubt on the credibility of her
             written statement. Her refusal to
             participate in an in-person interview, as
             well as her repeated failure to return phone
             calls also weakens the credibility of her
             written statement.

3.   The SJA’s addendum

      On May 28, 2009, the SJA prepared an addendum to his

recommendation to the convening authority under R.C.M.

1106(f)(7).    The addendum, which was served on the defense,

addressed the defense request for a new trial, the trial

counsel’s memorandum, and a sworn statement provided by TB on

May 14, 2009.    In the sworn statement, TB denied that she had

ever told Ms. Smith that she had made false allegations against

Appellant, adding:    “I stand by the statements I made at SSgt

Hull’s trial.”

      The SJA’s addendum described the discovery of the new

evidence by the defense, the difficulties encountered by trial

counsel in conducting the subsequent inquiry, the unwillingness

of Ms. Smith to cooperate, and the nature of the information



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United States v. Hull, No. 11-0131/AF

provided by Ms. Smith.    Based on these considerations, the SJA

advised the convening authority that “the credibility of her

written statement should be considered by you.”    The SJA also

noted that TB had “remained completely cooperative, as well as

firm and consistent in her statements and affidavit, contrasting

the demeanor of the alleged new witness, Ms. Smith.”

     The SJA informed the convening authority that “Rule for

Courts-Martial 1210(f)(1)(2)(3) states that a new trial may be

granted only on grounds of newly discovered evidence or fraud in

the court-martial.    The rule further provides that:

             a new trial shall not be granted on the
             grounds of newly discovered evidence unless
             the petition shows that: the evidence was
             discovered after the trial; the evidence is
             not such that it would have been discovered
             by the petitioner at the time of trial in
             the exercise of due diligence; and the newly
             discovered evidence, if considered by a
             court-martial in the light of all other
             pertinent evidence, would probably produce a
             substantially more favorable result for the
             accused.

Based on this standard and his analysis of the newly

discovered evidence, the SJA informed the convening

authority:

             The statements by the new witness Taycee
             Smith do fall within the parameters of RCM
             1210. However, the unwillingness of this
             witness to make herself available to be
             interviewed, the potential credibility
             issues of Ms. Smith . . . and the fact that
             the court members had substantial
             opportunity to assess the victim’s


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United States v. Hull, No. 11-0131/AF

           credibility, all give compelling reasons to
           uphold the conviction and finding of the
           Court.

In that context, the SJA recommended against granting a new

hearing.

4.   The defense response to the SJA’s addendum

      In defense counsel’s June 9, 2009, response to the SJA’s

addendum, the defense reiterated its request that the convening

authority either set aside the findings or order a new trial.

Defense counsel contended that it “is clear that [Ms. Smith]

wants no part of this process.”    The defense added that this

circumstance “does not mean that [Ms. Smith] is in any way

untruthful in what she told both me and the government

representative,” as she “has absolutely no reason to lie and has

in fact told the same facts to both sides.”   Counsel further

argued that the information Ms. Smith “possesses is vital for

finding the truth,” and that one “of the benefits of a new

trial, is that Ms. Smith can be compelled to cooperate.”

According to the defense, “[i]n the trial process, she can be

made to appear to testify or even to provide a deposition.    No

such power to compel her cooperation exists in these post trial

proceedings.”

5.   The second addendum and the convening authority’s action

      On June 10, 2009, the SJA provided the convening authority

with a further addendum, stating that he “still find[s] no


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United States v. Hull, No. 11-0131/AF

compelling reason” to set aside Appellant’s conviction or order

a rehearing.    On June 11, 2009, the convening authority took

action, approving Appellant’s adjudged sentence, thereby denying

his request to set aside the conviction or grant a new trial.



                            II.   DISCUSSION

   A.     THE SCOPE OF POST-TRIAL ACTION BY A CONVENING AUTHORITY

       A convening authority is authorized “to modify the findings

and sentence of a court-martial” as “a matter of command

prerogative involving the sole discretion of the convening

authority.”    Article 60(c)(1), UCMJ, 10 U.S.C. § 860(c)(1); see

R.C.M. 1107(b)(1).    When taking action on the results of trial,

the convening authority may order a rehearing “as to some or all

offenses of which findings of guilty were entered and the

sentence, or as to sentence only.”      R.C.M. 1107(e)(1)(A).

        In practical terms, a rehearing in full ordered by a

convening authority under Article 60 involves the same trial-

stage procedures as a new trial ordered by the Judge Advocate

General or appellate courts under Article 73, UCMJ, 10 U.S.C. §

873.    See R.C.M. 810.   The convening authority’s power to order

a rehearing under Article 60, however, differs in a number of

significant respects from the authority to order a new trial

under Article 73 by the Judge Advocate General and appellate

courts.    A petition under Article 73 may be submitted at “any


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United States v. Hull, No. 11-0131/AF

time within two years after approval by the convening authority

of a court-martial sentence . . . on the grounds of newly

discovered evidence or fraud on the court,” and is subject to

the standards and criteria set forth in R.C.M. 1210.    By

contrast, the convening authority, who may order a full or

partial rehearing when taking post-trial action on the case as a

matter of command prerogative, is not limited by the standards

and criteria of Article 73 and R.C.M. 1210.    See Article 60,

UCMJ; R.C.M. 1107.

     In view of the potential impact of newly discovered

evidence on appellate consideration of a case, the SJA or the

convening authority may find it useful to apply Article 73 and

R.C.M. 1210 criteria as a means of addressing such information

early in the post-trial process.     The convening authority,

however, is not obligated to apply those criteria in exercising

command prerogative powers under Article 60.

     In the course of considering action under Article 60 in the

face of newly discovered evidence, the convening authority has

options other than considering a rehearing on the findings and

sentence.   The convening authority also has the power to address

post-trial developments by returning the record for a limited

post-trial hearing before the military judge under Article

39(a), UCMJ, 10 U.S.C. § 839(a).     See R.C.M. 1102(b)(2)

(authorizing a hearing “for the purpose of inquiring into, and,


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United States v. Hull, No. 11-0131/AF

when appropriate, resolving any matter that arises after trial

and that substantially affects the legal sufficiency of any

findings of guilty or the sentence”).

        In the present case, the defense asked the convening

authority to either dismiss the charges or order a rehearing in

full.    The defense did not ask the convening authority to return

the case to the military judge for a hearing under Article 39(a)

to resolve any of the post-trial issues under R.C.M. 1102(b)(2).

On appeal, the defense contends:       (1) that the SJA provided the

convening authority with erroneous legal advice when he

recommended that the convening authority not order a new trial;

and (2) that the convening authority erred in not ordering a new

trial after the SJA noted that the defense request “f[ell]

within the parameters” of the new trial standards under

R.C.M. 1210.

 B.     THE STAFF JUDGE ADVOCATE’S ADVICE AND THE CONVENING
        AUTHORITY’S ACTION

        Prior to acting on the results of a general court-martial

and certain special courts-martial, the convening authority must

consider the SJA’s recommendation prepared under R.C.M. 1106.

See Article 60(d), UCMJ.    Although the SJA “is not required to

examine the record for legal errors,” the SJA must state whether

“corrective action on the findings or sentence should be taken

when an allegation of legal error is raised in matters submitted



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United States v. Hull, No. 11-0131/AF

[by the defense] under R.C.M. 1105 or when otherwise deemed

appropriate by the staff judge advocate.”     R.C.M. 1106 (d)(4).

The SJA’s response to legal errors raised by the defense “may

consist of a statement of agreement or disagreement with the

matter raised by the accused.”    Id.    “An analysis or rationale

for the staff judge advocate’s statement, if any, concerning

legal errors, is not required.”    Id.    Although not required, an

analysis of legal issues raised by the defense may facilitate

resolution of legal issues at the trial level, thereby

conserving appellate resources.    See United States v. Taylor, 60

M.J. 190, 195 (C.A.A.F. 2004) (noting that “[b]ecause the

defense submission included allegations of legal error, the

staff judge advocate’s advice to the convening authority was

particularly important”).

     In the present case, the defense submitted a post-trial

request for a rehearing invoking the new trial criteria of

R.C.M. 1210.   The SJA proceeded to address the defense request

on the terms raised by the defense.      In that context, it was not

inappropriate for the SJA to apply the criteria set forth in

R.C.M. 1210 by analogy to the rehearing request.     Cf. United

States v. Scaff, 29 M.J. 60, 65-66 (C.M.A. 1989) (noting the

propriety of utilizing R.C.M. 1210 criteria in the post-trial

setting while examining newly discovered evidence in the context

of an Article 39(a) session).    Although the SJA might have added


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United States v. Hull, No. 11-0131/AF

further information concerning the distinction between a “new

trial” ordered during appellate review under Article 73, and a

“rehearing” ordered by a convening authority under Article 60,

omission of that information did not constitute error in the

context of the defense request in the present case.    In that

regard, we note that the defense, which has not raised that

distinction in the present appeal, has persisted in treating the

present case as involving the criteria for a new trial under

Article 73 and R.C.M. 1210.

        In his advice to the convening authority, the SJA

focused primarily upon the vague nature of Ms. Smith’s

unsworn oral and written statements, as well as her

failure to cooperate when the Government attempted to

further investigate the matter.    The SJA concluded

that:

             the unwillingness of [Ms. Smith] to make
             herself available to be interviewed, the
             potential credibility issues of Ms. Smith .
             . . , and the fact that the court members
             had substantial opportunity to assess the
             victim’s credibility, all give compelling
             reasons to uphold the conviction and finding
             of the Court.

In the defense post-trial submissions, and on appeal,

the defense contends that any difficulty in obtaining

information regarding the details of Ms. Smith’s

account or the credibility of her statements could



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United States v. Hull, No. 11-0131/AF

have been resolved by setting aside the findings and

ordering a new trial, which would then have the power

to compel her attendance by subpoena.

     This Court has emphasized that “requests for a new trial,

and thus rehearings and reopenings of trial proceedings, are

generally disfavored,” and are “granted only if a manifest

injustice would result absent a new trial, rehearing, or

reopening based on proffered newly discovered evidence.”      United

States v. Williams, 37 M.J. 352, 356 (C.M.A. 1993).     The defense

has not contested the validity of the trial counsel’s memorandum

regarding the difficulties in obtaining information from Ms.

Smith, nor has the defense presented a sworn statement from Ms.

Smith or any corroborating evidence.    Most important, the

defense -- having been informed of the SJA’s negative view of

the defense request due to the vagueness of the information and

related matters -- did not ask the convening authority to order

a post-trial Article 39(a) session for the purpose of compelling

Ms. Smith or any other witnesses to appear and give sworn

testimony.   In the absence of a defense request for a post-trial

Article 39(a) session, and in light of the vague nature of the

unsworn information provided by the defense, the SJA was not

obligated to inform the convening authority as to the

possibility of ordering such a hearing.   See United States v.




                                20
United States v. Hull, No. 11-0131/AF

Ruiz, 49 M.J. 340, 348 (C.A.A.F. 1998); United States v.

Begnaud, 848 F.2d 111, 113 (8th Cir. 1988).

    In addition to contending that the SJA erred, the defense

also contends that the convening authority erred by not relying

upon that portion of the SJA’s advice which noted that the newly

discovered evidence “fall[s] within the parameters of RCM 1210.”

Although the phrase highlighted by the defense could be viewed

as favorable to Appellant’s position on appeal, it would be

inappropriate to focus on this phrase in isolation without

considering the remainder of the SJA’s advice in context.    When

viewing the SJA’s recommendation in its entirety, it is apparent

that the SJA did not take the position that a new trial was

required under the criteria set forth in R.C.M. 1210.    Instead,

the recommendation makes clear that the SJA was advising the

convening authority that the defense evidence could be

considered under the criteria of R.C.M. 1210, and that the

nature of the evidence did not warrant a new trial under those

criteria.

     Under the circumstances of this case, particularly the

nature of the defense’s newly discovered evidence and the

absence of a defense request for a post-trial Article 39(a)

session, the SJA did not misadvise the convening authority.

Likewise, the convening authority did not abuse her discretion

in approving the findings and sentence.


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United States v. Hull, No. 11-0131/AF

                        III.    CONCLUSION

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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