UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                             Before
                                 LIND, 1 KRAUSS, 2 and PENLAND
                                    Appellate Military Judges

                                 UNITED STATES, Appellee
                                              v.
                                Specialist COREY W. NORTH
                                United States Army, Appellant

                                        ARMY 20140268

             Headquarters, U.S. Army Fires Center of Excellence and Fort Sill
                            Gregory A. Gross, Military Judge
                   Colonel Mark W. Seitsinger, Staff Judge Advocate


For Appellant: Lieutenant Colonel Jason J. Elmore, JA; Major Yolanda McCray
Jones, JA.

For Appellee: Major A.G. Courie III.


                                           27 July 2015
                                   -----------------------------------
                                    MEMORANDUM OPINION
                                   -----------------------------------

     This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

KRAUSS, Judge:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of aggravated assault with a dangerous weapon and willful
discharge of a firearm in violation of Articles 128 and 134, Uniform Code of
Military Justice, 10 U.S.C. §§ 928 and 934 (2012) [hereinafter UCMJ]. The military
judge sentenced appellant to a bad-conduct discharge, confinement for fifteen
months, and reduction to the grade of E-1. The convening authority approved only
so much of the sentence as provided for a bad-conduct discharge, confinement for
fourteen months, and reduction to the grade of E-1. The convening authority also
waived automatic forfeitures of all pay and allowances for a period of six months
with direction they be paid to appellant’s dependents.

1
    Senior Judge LIND took final action in this case prior to her retirement.
2
    Judge KRAUSS took final action in this case prior to his retirement.
NORTH — ARMY 20140268

       This case is before the court for review under Article 66, UCMJ. Appellant
has submitted the case on its merits, but personally raises several additional matters
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), one of which
merits discussion and relief.

                                       FACTS

       On the evening of 21 July 2013, at appellant’s home, appellant sliced or
stabbed Specialist (SPC) MC with a large piece of glass, causing deep cuts to SPC
MC’s neck and back. Appellant claimed he acted in self-defense because prior to
the assault, SPC MC and SPC SB restrained appellant’s arms and legs with duct
tape. Specialist SB and SPC MC claimed they did so because appellant was
behaving in a violent manner toward SPC MC, as well as trying to harm himself by
punching walls and slamming his head into a table.

      After assaulting SPC MC, appellant ran out his front door and into his
neighborhood. Specialist SB called 911 and followed SPC MC to the hospital. Staff
Sergeant (SSG) SS, appellant’s platoon sergeant, arrived at the hospital and
requested that SPC SB take him to appellant’s house so he could see what happened.
When they arrived at appellant’s house, SSG SS and SPC SB saw appellant standing
outside wearing only a pair of shorts, no shirt or shoes. Appellant was angry, upset,
and according to SSG S, “still drunk or hungover.” Staff Sergeant SS calmed
appellant down and called the unit first sergeant to inform him that he had located
appellant.

      At this point, they were in what SSG SS termed a “delayed holding pattern
waiting for instructions.” Staff Sergeant SS then asked appellant if he was aware of
what had happened and if he was aware of what he had done to SPC MC. Appellant
responded that he was aware and “he had wished he’d done it worse [sic].”

       The uncontroverted facts in the record reveal that defense counsel first
received disclosure of appellant’s statement to SSG SS from the government at
around 1800 the evening before arraignment. The next morning, at arraignment,
when prompted by the military judge, defense counsel stated: “Sir, other than the
previously mentioned multiplicity motion, the defense has no further motions.”
Trial immediately ensued.

       The government called SSG SS and elicited appellant’s statement that “he had
wished he’d done it worse.” Defense counsel objected, in part, because SSG SS
“didn’t read [appellant] his rights, he didn’t inform him of anything and, therefore,
those statements should not be used against the accused at this court-martial.” The
following exchange then occurred:

             MJ: “What’s the good cause for not filing the motion to
             suppress before arraignment?”


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NORTH — ARMY 20140268

             TDC: “Sir, we just – I got this email last night about
             six’o’clock last night.”

             MJ: “It would’ve been a good motion before arraignment.
             The rule says you do it before arraignment. You didn’t
             tell me anything about this until just now, so . . .
             Overrruled.”

             TC: “So, he told you he wish he had done it worse [sic]?”

             SSG SS: “Yes.”

      Trial counsel relied on this statement several times during the rest of the trial,
including in his cross examination of the defense expert witness, in his closing
statement on findings, and in his sentencing argument.

       In cross-examination of the psychiatrist called by appellant, trial counsel used
the statement to attack the notion that appellant was acting out of fear rather than
malice. In his closing argument, trial counsel referred to this cross-examination and
stated that:

             And, Major [C], their own expert, said it, a normal person
             in this situation would not have responded with that. And
             you also heard what Major C said with regard to what
             [appellant] said the next morning. He said I know what
             I’ve done and I wish I would have caused more harm, or
             done worse, or words to that effect. And, Major [C] said
             that sounds like vengeance and that sounds like anger.

Finally, in sentencing argument, trial counsel stated:

             And the biggest problem with what occurred, Your Honor,
             the biggest problem with what he did is reflected upon the
             same statement that I hit on in the closing; it’s a statement
             that is made the next day. It’s not a statement of regret.
             It’s not a—he apologized today. But, after the incident,
             he’s not apologetic and he shows no remorse; he wished
             he would have done the worse [sic].

                                         LAW

       Military Rule of Evidence [hereinafter Mil. R. Evid.] 304(d)(2)(A) requires
that “[m]otions to suppress or objections under. . . Mil. R. Evid. 305 to statements
that have been disclosed shall be made by the defense prior to submission of plea.”
Failure to move or object “constitutes a waiver of the objection.” Mil. R. Evid.


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NORTH — ARMY 20140268

304(d)(2)(A). The rule further provides that “the defense may not raise the issue at a
later time except as permitted by the military judge for good cause shown.” Mil R.
Evid. 304(d)(2)(A).

      “We review the military judge's evidentiary decision on whether good cause
was shown for an abuse of discretion.” United States v. Jameson, 65 M.J. 160, 163
(C.A.A.F. 2007) citing United States v. Howard, 998 F.2d 42, 52 (2d Cir. 1993).

                                     ANALYSIS

      We find that under the facts and circumstances of this case, the military judge
abused his discretion when he summarily overruled the defense counsel’s objection
and admitted appellant’s statement to SSG SS into evidence.

       During the brief discussion on this issue, trial defense counsel told the
military judge that he had only received disclosure of appellant’s statement the night
before at 1800 hours. Without further inquiry or analysis, the military judge simply
overruled the objection because defense counsel had not filed a motion prior to
arraignment.

       We recognize the judge’s interest in properly enforcing filing deadlines and
the necessity of counsel to strive to adhere to those deadlines. However, the
military judge also has a duty to ensure that appellant receives a fair trial and along
with that, the “opportunity to be heard in his defense.” United States v. Coffin, 25
M.J. 32, 33 (C.M.A. 1987) citing Rock v. Arkansas, 483 U.S. 44 (1987). While Mil.
R. Evid. 304(d)(2)(A) “provides for efficient administration of justice, it should be
liberally construed in favor of permitting an accused the right to be heard fully in his
defense.” Coffin, 25 M.J. at 34 (emphasis in the original).

      “Article 31(b), UCMJ, warnings are required when (1) a person subject to the
UCMJ, (2) interrogates or requests any statement, (3) from an accused or person
suspected of an offense, and (4) the statements regard the offense of which the
person questioned is accused or suspected.” United States v. Jones, 73 M.J. 357,
361 (C.A.A.F. 2014) citing United States v. Cohen, 63 M.J. 45, 49 (C.A.A.F. 2006).

       Here, three of these four prongs were already fully addressed on the record
prior to the defense counsel’s objection. First, SSG SS testified that he was
currently on active duty and therefore subject to the UCMJ. See Art. 2(a)(1), UCMJ.
Second, although he was still collecting information, SSG SS indicated that SPC SB
told him that appellant had stabbed SPC MC, and he therefore reasonably suspected
appellant of committing a crime under the UCMJ. Finally, appellant’s statement was
without question in regard to the offense of which he was suspected. Thus, the only
real question left for the military judge to determine was whether or not SSG SS
interrogated or requested a statement from appellant. This inquiry could have been



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NORTH — ARMY 20140268

accomplished quickly with a few more questions for SSG SS, who was on the stand
at the time.

       Instead, the military judge allowed an incriminating statement into evidence
simply because the defense did not meet the deadline without any further inquiry
into the reasons behind that failure or the extent to which the government may have
contributed to the problem. See Jameson, 65 M.J. at 163. We find the military
judge’s reflexive application of the rules and his failure to liberally construe the
timing requirement of Mil. R. Evid. 304(d)(2)(A) to be an abuse of his discretion.
Coffin, 25 M.J. at 34. 3

       Because the error is nonconstitutional in nature, we review to determine
whether the government has demonstrated that the error did not substantially
influence the findings. Considering the factors articulated in United States v. Kerr,
51 M.J. 401 (C.A.A.F. 1999), we conclude appellant suffered no prejudice as to
findings. At the time appellant struck SPC MC, he was near the front door to his
house, SPC MC and SPC SB were behind him, not touching him, and were allowing
him to go outside to throw the piece of glass away. While it is not entirely clear
how much time had elapsed between the duct-taping incident and the assault, it was
not immediate. In the time between the events, appellant was alone in his room, had
knocked a television over, went to the kitchen to have a shot of alcohol with SPC
MC, and had thrown a bottle against his refrigerator. Moreover, during the actual
assault, appellant first struck SPC MC in the neck, causing SPC MC to turn around,
holding his neck, when appellant assaulted SPC MC again, this time causing a deep
cut in his back. A reasonable person in these circumstances would not have believed
death or grievous bodily harm was about to be inflicted on him or her warranting
such a violent act of self-defense. R.C.M. 916(e)(1)(A). The government’s case was
strong and the defense of self-defense weak. Though aggravating, the additional
incriminating statement at issue did not contribute significantly to the question of
appellant’s guilt. Therefore, we hold the error in this case was harmless as to
findings. See Kerr, 51 M.J. at 405.



3
  Appellant also makes an allegation of ineffective assistance of counsel claiming
that his trial defense counsel was ineffective for failing to file a motion to suppress
in a timely manner. Had the military judge simply heard counsel’s belated motion,
he could have eliminated this claim and dealt with trial defense counsel’s rules
violation after trial. Coffin, 25 M.J. 32, 34 n.3 (C.M.A. 1987); see also United
States v. Jameson, 65 M.J. 160, 166 (C.A.A.F. 2007) (Baker, J., concurring in part
and in the result)(“Certainly, as a matter of legal policy it would have been better
for the military judge to close and secure the door otherwise left open.) Id. For the
reasons described in this opinion, appellant’s ineffective assistance of counsel claim
fails on the basis of the second prong of Strickland v. Washington, 466 U.S. 668
(1984).


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NORTH — ARMY 20140268

        However, in light of the damning nature of appellant’s expressed desire to
inflict greater harm on his victim and the government’s reliance on that statement to
argue for a severe sentence, we are not convinced that the admission of the statement
did not substantially influence the adjudged sentence. See generally United States v.
Sanders, 67 M.J. 344 (C.A.A.F. 2009). Applying the principles of United States v.
Sales, 22 M.J. 305, 308 (C.M.A. 1986) and the factors set forth in United States v.
Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013), we conclude that we can
confidently reassess appellant’s sentence without returning this case for a sentence
rehearing.

       We find a two month reduction in appellant’s sentence to confinement cures
the error and eliminates any impact the erroneously admitted statement may have
had on the military judge’s sentence determination.

      In evaluating the Winckelmann factors, our decision does not result in a
change in the penalty landscape because appellant’s maximum punishment remains
unchanged as a result of our action. Id. at 15-16. Because appellant was sentenced
by a military judge as opposed to members, we are more likely to be certain of how
the military judge would have sentenced appellant had he not considered the
erroneously admitted statement. Id. at 16. In addition, this court reviews the
records of a substantial number of courts-martial involving aggravated assaults, and
we have extensive experience with the sentences imposed for such offenses under
various circumstances. Id. at 16.

       Finally, the gravamen of the offenses has not changed, appellant remains
convicted of willfully discharging a firearm and a particularly egregious aggravated
assault, evidence of which was all still properly before the military judge. Id. at 16.
In particular, appellant inflicted several deep cuts on SPC MC’s neck, one of which
was eleven centimeters long and five centimeters deep and located only one or two
millimeters from SPC MC’s carotid artery. Appellant’s second hit on SPC MC
caused a deep cut in his back that was eleven and a half centimeters long and two
centimeters deep. Specialist MC also had other, smaller cuts, including one on his
hand and finger which caused permanent limited range of motion. These injuries
resulted in SPC MC having to undergo surgery and spend three days in the hospital.
In the end, we are certain the military judge would have sentenced appellant to no
less than a bad conduct discharge, confinement for thirteen months and reduction to
the grade of E-1. We find such a sentence is correct in law and fact.

                                   CONCLUSION

       On consideration of the entire record and the submissions by the parties, the
findings of guilty are AFFIRMED. Reassessing the sentence on the basis of the
error noted, the entire record, and in accordance with the principles of United States
v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and United States v. Sales, 22
M.J. 305 (C.M.A. 1986), we affirm only so much of the sentence as provides for a


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NORTH — ARMY 20140268

bad-conduct discharge, confinement for thirteen months and reduction to the grade
of E-1. All rights, privileges, and property, of which appellant has been deprived by
virtue of that portion of the sentence set aside by this decision, are ordered restored.
See UCMJ arts. 58a(b), 58b(c), and 75(a).

      Senior Judge LIND and Judge PENLAND concur.


                                        FORTHE
                                       FOR  THECOURT:
                                                COURT:




                                       MALCOLM
                                        MALCOLMH.   H.SQUIRES,
                                                       SQUIRES,JR.
                                                                JR.
                                       Clerk of Court
                                        Clerk of Court




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