

   
   
   
   U.S. v. Henley



UNITED STATES, Appellee
v.
David R. HENLEY, Sr., Captain
U.S. Air Force, Appellant
 
No. 99-0094
Crim. App. No. 32551
 
United States Court of Appeals for the Armed
Forces
Argued October 20, 1999
Decided August 31, 2000
COX, S.J., delivered the opinion of the
Court, in which CRAWFORD, C.J., and GIERKE and SULLIVAN, JJ., joined. EFFRON,
J., filed an opinion concurring in part and in the result.
Counsel
For Appellant: Robert Estrada (argued);
Lieutenant
Colonel Jeanne M. Rueth and Captain Tishlyn Taylor (on brief);
Colonel Douglas H. Kohrt.
For Appellee: Captain Mitchel Neurock,
USAFR (argued); Colonel Anthony P. Dattilo and Lieutenant Colonel
Ronald A. Rodgers (on brief); Captain Steven D. Dubriske.
Military Judge: Linda S. Murnane
 
 


This opinion is subject
to editorial correction before final publication.



Senior Judge COX delivered the opinion of the
Court.
Appellant was tried by a general court-martial
comprised of officer members on April 24-26, June 17-21, and June 24, 1996.
He was convicted, contrary to his pleas, of violating Articles 125, oral
sodomy (1 specification); 133, conduct unbecoming an officer (1 specification);
and 134, indecent acts (2 specifications), Uniform Code of Military Justice,
10 USC §§ 925, 933, and 934, respectively. Appellant was sentenced
to be confined for 6 years and dismissed from the Air Force. The convening
authority approved the sentence, and the Court of Criminal Appeals affirmed,
granting partial relief in accordance with United States v. Gorski,
47 MJ 370 (1997). See 48 MJ 864 (1998).
We granted review of the following issues:

I. WHETHER ALLOWING EVIDENCE OF OTHER SEXUAL
MISCONDUCT TO SHOW PROPENSITY UNDER FED.R.EVID. 413 OR 414 VIOLATES THE
DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE CONSTITUTION.
II. WHETHER THE MILITARY JUDGE ERRED IN ADMITTING
EVIDENCE OF UNCHARGED SEXUAL MISCONDUCT UNDER FED.R.EVID. 413 OR 414, EVEN
THOUGH APPELLANT WAS CHARGED PRIOR TO THE EFFECTIVE DATE OF THESE RULES.
III. WHETHER THE MILITARY JUDGE ERRED IN DENYING
THE DEFENSE MOTION TO SUPPRESS EVIDENCE SEIZED FROM APPELLANTS HOUSE AND
THE CONFESSION MADE BY APPELLANT WHEN CONFRONTED WITH THAT EVIDENCE.
IV. WHETHER THE MILITARY JUDGE ERRED IN DENYING
THE CHALLENGE FOR CAUSE AGAINST LT COL KIM MAURER.
V. WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT
TO SUPPORT A FINDING OF GUILTY OF CONDUCT UNBECOMING AN OFFICER, CHARGE
III AND ITS SPECIFICATION.
VI. WHETHER APPELLANT RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL.

Facts
All of the offenses for which appellant stands
convicted arose out of appellants sexual abuse of his natural children
- one son and one daughter -- which started when the his son was approximately
4 or 5 years old and his daughter was 11 or 12 years old. The abuse continued
until each was about 16 or 17 years of age.
During the course of the trial, there was questioning
about prior, uncharged sexual abuse offenses that occurred outside of the
statute of limitations. The testimony was offered under more than one theory.
The Government originally sought to offer it as either evidence of similar
sexual offenses under Fed.R.Evid. 413 or as evidence of child molestation
under Fed.R.Evid. 414.* The military
judge ruled that this evidence
was admissible under Rule 414, as well as
under Mil.R.Evid.
404(b), Manual for Courts-Martial, United
States (1995 ed.).

Discussion
I. Evidence of Prior Misconduct
Issues I and II ask whether Rules 413 and 414
permit the admission of testimony of the victims about sexual abuse that
occurred outside the statute of limitations. The military judge overruled
the defense objection to the evidence, finding it to be admissible. He
stated:

I find that the prior acts of sexual abuse
contained in the statements of [J] and [D] are admissible under Military
Rule of Evidence 414 [sic]. Further, I find that this evidence would
also be admissible under Military Rule of Evidence 404(b) to prove scheme,
plan, motive, and preparation.

As he did below, appellant attacks here the admission
of the evidence under Rule 414 on several grounds, including that Rule
414 is unconstitutional, at least as it pertains to appellant. The Court
of Criminal Appeals resolved the issue on the basis of Mil.R.Evid. 404(b).
48 MJ at 870-71. That court reasoned that there was no need to address
the Rule 414 question.
We review the military judge's ruling on the
admissibility of evidence under an "abuse of discretion" standard. United
States v. Acton, 38 MJ 330, 332 (CMA 1993). We agree with the approach
taken by the Court of Criminal Appeals. The testimony of the victims regarding
uncharged sexual abuse was admissible as "other crimes, wrongs, or acts"
under Mil.R.Evid. 404(b).
In any event, we have recently resolved the
questions raised by appellant concerning the applicability and scope of
Mil.R.Evid. 413 and 414. See United States v. Wright, No.
99-0318, __ MJ __ (2000). Applying that rationale to the facts of this
case, we would readily conclude that this evidence was admissible to show
appellants similar sexual molestation of his children.

II. Admissibility of Seized Evidence and
Derivative
Confession
The sexually explicit material introduced against
appellant was seized as a result of a search warrant issued by a Texas
magistrate. Following the seizure, appellant made some admissions (the
confession), which were used against him at trial. He now contends that
the magistrates warrant must fail because it was not based upon probable
cause. He further contends that his confession must also be suppressed
as it resulted from the illegal search warrant.
At trial and on appeal, the defense has consistently
attacked the warrant on the basis that the information provided to the
magistrate was stale and incomplete. The information relied upon by the
magistrate was expert testimony and affidavits from appellants son and
daughter that, over the course of several years, appellant had shown them
pornographic materials in the form of videotapes and magazines in order
to arouse them. Moreover, both children alleged that they had seen the
materials since the time they had been used to facilitate the abuse.
At trial, appellant argued that the Texas search
warrant was fatally flawed because the magistrate had been denied a critical
fact. There was no evidence that the pornographic materials being sought
by the warrant had been seen in the 5 years prior to the execution of the
victims' affidavits regarding the materials. Furthermore, there was no
evidence that the materials being sought had ever been seen in the Texas
home of appellant. Under these circumstances, appellant argues the warrant
was not properly based upon probable cause and must be held invalid.
Pretrial, the military judge considered whether
the warrant was properly issued. After evaluating the evidence, the judge
decided as follows:



The defense motion, simply stated, is based
upon the position that the information provided by the children was stale.
Staleness is a factor appropriate for a magistrate in evaluating probable
cause. However, it is only one factor to be evaluated. In light of all
of the information contained in the affidavit provided to Judge Cate, and
all of the information provided to Judge Cate, including the information
in the treatise relied upon and related to Judge Cate in the affidavit,
the sworn statements of [J] and [D], and even without the statement provided
by Lieutenant Colonel Slicner, probable cause existed to believe that some
of the sexually explicit materials allegedly used by the accused in performing
the various sexual activities alleged, would be found in the residence
in Live Oak, Texas.



Our standard of review of this issue is whether
the magistrate had substantial evidence in the record to support his decision
issuing the search warrant. See United States v. Monroe,
52 MJ 326, 331 (2000).
First, based upon the information presented
to the magistrate, we agree with the military judge that the magistrate
"had a substantial basis for concluding that a search [of appellant's home]
would uncover evidence of wrongdoing." Perhaps the magistrate would not
have been persuaded to issue the warrant had he known that there was no
evidence the materials had been seen in the last 5 years. However, we are
not free to speculate but must review the record presented to the magistrate.
We hold the military judge did not abuse her
discretion. First, under the totality of the circumstances presented to
the magistrate, as set forth by the military judge, there was probable
cause to issue the warrant. Illinois v. Gates, 462 U.S. 213 (1983).
We agree, therefore, with the Court of Criminal Appeals that the military
judge did not err by denying the motion to suppress the fruits of the search
or the admissions made by appellant subsequent to the search.
However, even if the warrant was not based
upon probable cause, the evidence could be admitted under the "good faith"
exception to the warrant requirement. United States v. Leon, 468
U.S. 897 (1984); United States v. Lopez, 35 MJ 35 (CMA 1992). The
agents believed they were executing a valid warrant and did not act outside
of the scope of the warrant they possessed. The items seized were encompassed
by the description in the warrant. Thus, the agents reasonably believed
these items were seized under the authority of a lawfully issued search
warrant. Therefore, this evidence was properly admitted.

III. Denial of Challenge for Cause
LtCol Maurer was asked probing questions during
voir dire about his friendship with two individuals who were victims of
sexual abuse. Neither friend was abused as a child. LtCol Maurer stated
that he could disregard any knowledge of his friends situations and that
he could judge whether appellant was guilty solely on the evidence presented.
The defense counsel also challenged LtCol Maurer because he stated that
he believed someone with an extensive collection of pornography probably
had a "fixation or something of that nature." He also stated, however,
that he would not convict anyone of a sexual offense solely because they
possessed large quantities of pornography. The military judge denied the
defense challenge for cause.
We review the military judges denial of a
challenge for cause for an abuse of discretion. United States v. Schlammer,
52 MJ 80, 93 (1999).
RCM 912(f)(1)(N), Manual, supra, requires
a military judge to excuse a member "whenever it appears that the member
. . . [s]hould not sit as a member in the interest of having the court-martial
free from substantial doubt as to legality, fairness, and impartiality."
The question of impartiality is largely concerned with whether the member
can judge the case on the evidence and the law, and not on preconceived
notions of how the case should be decided -- commonly referred to as either
"actual" or "implied" biases. United States v. Napoleon, 46 MJ 279,
283 (1997). Whether a member is actually biased is most often a judgment
call for the military judge, based upon the answers the member gives to
voir dire questions and the demeanor and credibility of the member. Schlammer,
supra,
citing United States v. Napoleon, supra; United States
v. Jefferson, 44 MJ 312, 321 (1996).
We see nothing in the record before us that
causes us to conclude that the military judge abused her discretion in
denying the challenge of this member based upon his actual bias. Furthermore,
we are satisfied that the judge did not err in refusing to excuse the member
because of any "implied bias." There is a substantial difference between
a court member who has "friends" who were victims or who may know a victim
of a crime and a member who may have had "family" as a victim of a crime.
Compare
United States v. Jefferson, supra, United States v. White,
36 MJ 284 (CMA 1993), and United States v. Daulton, 45 MJ 212 (1996).

IV. Legal Sufficiency of the Evidence
The conduct unbecoming an officer charge was
based upon appellants possession of sexually explicit material depicting
male and female genitalia and magazines with pictures of naked children
and adolescents, in his unlocked, government desk. Appellant argued at
trial that he was not placed on notice that this was a criminal offense.
Here, on appeal, appellant is arguing that these facts are legally insufficient
to support the charge of conduct unbecoming an officer.
We disagree. It is without question that, under
the circumstances of this case, a rational finder of fact could conclude
that possession of the nude photographs of children and adolescents brings
disgrace upon an officer of the armed forces. United States v. Hartwig,
39 MJ 125 (CMA 1994); United States v. Maxwell, 45 MJ 406 (1996).
The evidence in this case was presented to
the members with proper instructions. Members are presumed to follow the
law when properly instructed. The evidence was legally sufficient to support
the charge of conduct unbecoming. See Jackson v. Virginia,
443 U.S. 307 (1979).

V. Ineffective Assistance of Counsel
Appellant contends that his trial defense counsel
were deficient in the following particulars:

(1) They failed to push for a trial date
before the effective date of Rules 413 and 414, and did not challenge their
effective date at trial.
(2) They failed to call a potential alibi witness,
Chris Hannon, who would allegedly testify that he was around appellants
son one summer and that his son did not register a claim of sexual abuse
at this time.
(3) They did not offer pictures or measurements
of a glove box in a van to show why pornographic magazines could not have
been kept in this compartment. This testimony would have allegedly contradicted
appellants sons testimony that these magazines were used from this location
on one occasion.
(4) They prevented appellant from giving the
unsworn statement that appellant wanted to give during sentencing.

After a careful review of the record, we conclude
that the Court of Criminal Appeals correctly evaluated appellants claims.
48 MJ at 872-73. Appellant has offered nothing more to show how counsels
performance was deficient. See Strickland v. Washington, 466 U.S.
668, 687 (1984). Nor has he raised any unresolved questions of fact concerning
his claim, which would require further proceedings. United States v.
Ginn, 47 MJ 236 (1997).
The decision of the United States Air Force
Court of Criminal Appeals is affirmed.
FOOTNOTE:
* See United
States v. Wright, No. 99-0318, __ MJ __, (3n.) (2000). Rules
413 and 414 became applicable to the military at the same time.


EFFRON, Judge (concurring in part and in the
result):
I agree with the majority opinion, except with
respect to Issue III. I concur in the result in Issue III, and with the
majority's reliance on the good faith exception. I disagree, however, with
that portion of the majority opinion that would suggest the search warrant
could be sustained upon a finding of probable cause.
In the present case, the pertinent information
was provided by the victims. They had not seen the material sought under
the warrant during the previous 5 years, and they had never seen the material
at the residence that was the subject of the search. Under these circumstances,
the 5-year time lapse stretches the boundaries of reasonableness too far.
The statement provided by the investigative
psychologist, profiling appellant as "sexually indiscriminate" or "try-sexual,"1
does not "bridge the gap" between the sighting and the search to save the
stale information. Although profiles may be used as a factor to establish
probable cause, see United States v. Rugh, 968 F.2d 750 (8th
Cir. 1992), the cases cited by the Government involved gaps of less than
2 years between the sighting of evidence and application for a warrant.
See
United States v. Lacy, 119 F.3d 742 (9th Cir. 1997);
United States v. Harvey, 2 F.3d 1318 (3rd Cir. 1993).
In my view, these cases represent the outer boundaries of the use of profile
evidence to "bridge the gap" and they do not warrant a finding of probable
cause in the present case.
FOOTNOTE:
1 The psychologists
affidavit, included with the application for the search warrant, categorized
appellant as "sexually indiscriminant or try-sexual(meaning they will
try anything plus everything sexual)."


Home
Page  |  Opinions
& Digest  |  Daily
Journal  |  Scheduled
Hearings
