

   
   
   
   U.S. v. Moolick



IN THE CASE OF
UNITED STATES, Appellee
v.
Jerry D. MOOLICK, Aviation Electronics Technician
Second Class
U.S. Navy, Appellant
 
No. 99-0301
Crim. App. No. 97-0521
 
United States Court of Appeals for the Armed
Forces
Argued January 19, 2000
Decided July 14, 2000
GIERKE, J., delivered the opinion of the
Court, in which CRAWFORD, C.J., EFFRON, J., and EVERETT, S.J., joined.
SULLIVAN, J., filed an opinion concurring
in part and
dissenting in part.
Counsel
For Appellant: Lieutenant Omar R. Lopez,
JAGC, USNR (argued).
For Appellee: Lieutenant James E. Grimes,
JAGC, USNR (argued); Colonel Kevin M. Sandkuhler, USMC, and Commander
Eugene E. Irvin, JAGC, USN (on brief).
Military Judge: Ronald B. Leo
 


This opinion is subject
to editorial correction before publication.


Judge GIERKE 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 unlawful entry, in violation of Articles 120 and 134, Uniform Code
of Military Justice, 10 USC §§ 920 and 934, respectively. The
adjudged and approved sentence provides for a dishonorable discharge, confinement
for 1 year, total forfeitures, and reduction to the lowest enlisted grade.
The Court of Criminal Appeals affirmed in an unpublished opinion.
This Court granted review to determine if the
military judge erred by ruling that appellants exclamation, uttered immediately
after being accused of rape, was not admissible as an excited utterance.1
For the reasons set out below, we reverse.

Facts
Appellant met Storekeeper Seaman Recruit SC
when she arrived in the unit and checked into the barracks. SC and another
female
sailor, KS, went to an on-base club on the
night of April 5, 1996. At the club, both KS and SC became intoxicated.
SC was so intoxicated that she could not remember how she got back to the
barracks.
Appellant asked Airman (AN) Michael Gray to
take SC home. According to AN Gray, appellant asked him "not to take advantage
of her and to take care of her, that she was married and she was too drunk."
AN Gray testified that SC had difficulty walking without assistance and
was unable to put her key in the door. AN Gray unlocked the door for her,
and she went to bed. AN Gray sat down on the bed next to her, and they
began talking. AN Gray testified that SC asked him to spend the night with
her, but he did not want to. Because he was "fixing to leave," he hugged
SC and they kissed "a little bit." AN Gray then used the bathroom adjoining
SCs room. When AN Gray returned, SC had removed her clothes and was lying
under the covers on her bed. She again asked AN Gray to spend the night.
He declined and left.
SC testified that she did not remember AN Gray
taking her home. She admitted that she invited AN Gray to spend the night
with her. She testified that the next thing that she remembered was seeing
appellants face on top of hers. She pushed him off, and he did not resist.
She ran into KSs room and screamed at her, asking KS if she was "part
if it." She told KS that appellant had raped her.
Appellant returned to KSs room about 30 seconds
later. According to KS, when appellant heard SC accuse him of rape, "he
was shocked and he was upset or whatever you want to call that." KS testified
that the situation in the room was "chaos." KS testified that SC was talking
to both her and appellant, and appellant was responding. Appellant appeared
"shocked, [in] disbelief, upset." KS testified that appellant responded
to the accusation by saying, "You grabbed me first." Then he threw up his
hands, said "call the cops," and walked out of the room.
SC testified that she did not know if appellant
penetrated her. She was taken to the base hospital for a rape examination.
No semen was found. The emergency room physician found some redness near
her vagina, but "nothing specific for trauma in the general redness that
[he] observed."
Appellant was interviewed by agents of the
Naval Criminal Investigative Service (NCIS) and denied raping SC. He stated
that he returned to the barracks after the club closed and found KS downstairs,
heavily intoxicated, vomiting, and being helped by the Officer of the Day
and other people. Appellant told the NCIS that he and some other sailors
assisted KS to her room, put her in bed, and decided to "put a kind of
watch on her for three hours to make sure she was ok." Appellant sat in
a chair near the bathroom door. He heard coughing noises from SCs room,
which adjoined the common bathroom. He went into SCs room "to see if she
was ok." He saw her lying on her back, wearing only a bra and bikini panties.
He went to the bed to roll her onto her side or stomach in case she vomited.
She put her arms around his upper body, called him by his first name, "Jerry,"
and said "dont leave."
Appellant said that he lay down beside her,
fully clothed, and dozed off. He was awakened when SC grabbed his genitals
from the outside of his pants. SC then removed her panties. Appellant undressed
and began to have intercourse with her. She asked, "Jerry, are you protected?"
and he said that he was not. At that point, according to appellant, SC
"freaked out." She put on sweat pants and a sweatshirt and ran out of the
room. She ran up and down the hall, cursing appellant. SC then returned
to her room, and appellant returned to KSs room. SC came into KSs room,
accused KS of lying, and accused appellant of rape.
Appellant did not testify, but relied on his
statement to the NCIS to present his account of the incident. Over the
objection of the prosecution, the military judge admitted appellants statement
"call the cops" as indicative of the absence of a guilty state of mind,
but he excluded the statement "you grabbed me first." The defense case-in-chief
included evidence of appellants good reputation and character, and expert
testimony disputing the degree of SCs intoxication.
In an affidavit, appellants former division
officer stated that appellant is honest, direct, and straightforward. Two
female sailors and one female member of the Air Force testified that appellant
is truthful, peaceful, and very respectful to women. A senior chief petty
officer testified that appellant is truthful and peaceful. A master chief
petty officer testified that appellant is a peaceful person.

Discussion
Mil. R. Evid. 803(2), Manual for Courts-Martial,
United States (1995 ed.),2
provides that an "excited utterance" is not excluded by the hearsay rule,
even if the declarant is available to testify. An "excited utterance" is
defined as "[a] statement relating to a startling event or condition made
while the declarant was under the stress of excitement caused by the event
or condition."
In United States v. Jones, 30 MJ 127,
129 (CMA 1990), this Court explained the basis for admitting excited utterances:
"The implicit premise is that a person who reacts to a startling event
or condition while under the stress of excitement caused thereby will
speak truthfully because of a lack of opportunity to fabricate." In United
States v. Chandler, 39 MJ 119, 123 (CMA 1994), this Court explained:
"The guarantee of trustworthiness of an excited utterance is that the statement
was made while the declarant was still in a state of nervous excitement
caused by a startling event." A statement made during the heat of an argument
can qualify as an excited utterance. See United States v. Satterfield,
572 F.2d 687, 693 (9th Cir. 1978); see also Martinez
v. McCaughtry, 951 F.2d 130 (7th Cir. 1991) (threats by
codefendant during fight with victim admissible as excited utterances).
A military judges ruling admitting or excluding
evidence is reviewed for abuse of discretion. United States v. Hyder,
47 MJ 46, 48 (1997). We hold that the military judge abused his discretion
in this case. The uncontradicted evidence is that SC burst into KSs room,
screaming accusations, that SC and appellant had an exchange of words in
which she accused appellant of raping her, that he was upset and agitated,
that the atmosphere in the room was "chaos," and that he responded immediately
with a counteraccusation: "You grabbed me." The startling event was not
the earlier sexual encounter, but SCs accusation of rape, to which appellant
responded almost immediately.
If a military judge commits constitutional
error by depriving an accused of his right to present a defense, the test
on appellate review is whether our Court is satisfied beyond a reasonable
doubt that the error was harmless. See United States v. Adams,
44 MJ 251, 252 (1996). The test for nonconstitutional error is "whether
the error itself had substantial influence" on the findings. United
States v. Armstrong, 53 MJ 76, 81 (2000); United States v. Adams,
supra;
United States v. Pollard, 38 MJ 41, 52 (CMA 1993), quoting Kotteakos
v. United States, 328 U.S. 750, 765 (1946). Unless we are persuaded
that a nonconstitutional error did not have substantial influence on the
findings, or if we are in "grave doubt, the conviction cannot stand." Id.;
see United States v. Lawal, 736 F.2d 5, 9-10 (2d Cir. 1984)
(using nonconstitutional standard for error in excluding defense evidence).
We evaluate prejudice from the military judges
erroneous evidentiary ruling by weighing (1) the strength of the Governments
case, (2) the strength of the defense case, (3) the materiality of the
evidence in question, and (4) the quality of the evidence in question.
United
States v. Weeks, 20 MJ 22, 25 (CMA 1985); see also United
States v. Kerr, 51 MJ 401, 405 (1999); United States v. Menge,
48 MJ 490, 492 (1998).
Applying this four-part analysis, we hold that
the error materially prejudiced appellants substantial rights. See
Art. 59(a), UCMJ, 10 USC § 859(a). Comparing the strength of the Governments
case and the defense case, we conclude that neither was significantly stronger
than the other. The Government relied solely on SCs accusation. There
were no corroborating witnesses and no physical evidence of rape. SC admitted
that she asked AN Gray to spend the night with her. The defense case rested
on the truthfulness of appellants statement to NCIS.
The excluded evidence was highly material.
The prosecution characterized appellants statement to the NCIS as a fabrication.
The military judges erroneous ruling deprived appellant of strong evidence
that his statement to the NCIS was truthful. The portion of the declaration
admitted by the military judge, "call the cops," could have been construed
as either exculpatory, the equivalent of "I have nothing to hide," or inculpatory,
because it fell short of denying SCs accusation. On the other hand, appellants
unambiguous counteraccusation that SC instigated the sexual contact was
clearly exculpatory and bolstered his statement to the NCIS that the sexual
encounter was consensual.
The quality of the evidence was high. There
was no dispute that appellant accused SC of instigating the encounter.
Mil. R. Evid. 803(2) recognizes that an excited utterance is made under
circumstances where fabrication is unlikely. Appellants excited utterance
would have bolstered his assertion that SC was the instigator.
Having applied the Weeks analysis, we
are in "grave doubt." Thus, we need not decide if the military judges
error was of constitutional dimension, because the Government did not meet
its burden under the less demanding test for nonconstitutional error. See
ONeal v. McAninch, 513 U.S. 432, 437-38 (1995). Accordingly, we
must reverse.

Decision
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is reversed. The findings of guilty and
the sentence are set aside. A rehearing is authorized.
FOOTNOTES:
1 The granted
issues in this case are:



Issue I

WHETHER THE NAVY-MARINE
CORPS COURT OF CRIMINAL APPEALS ERRED BY APPLYING THE WRONG STANDARD FOR
FACTUAL SUFFICIENCY OF THE EVIDENCE IN AFFIRMING APPELLANTS CONVICTION.
 

Issue II

WHETHER THE NAVY-MARINE
CORPS COURT OF CRIMINAL APPEALS ERRED IN AFFIRMING THE MILITARY JUDGES
RULING EXCLUDING THE INTRODUCTION OF AN EXCITED UTTERANCE BY APPELLANT.

The Government concedes
error with respect to Issue I in light of this Courts decision in United
States v. Martinez, 50 MJ 344 (1998) (summary disposition). Issue I
is rendered moot by our disposition of Issue II.
2
This rule is unchanged in the 1998 Manual.


SULLIVAN, Judge (concurring in part and dissenting
in part):
On Issue I (that the court below used "the
wrong standard for factual sufficiency of the evidence in affirming appellants
conviction"), I would accept the Government's concession of error. The
Government concession on Issue I was that the lower court erred, and this
case should be remanded by our Court to the lower court to follow United
States v. Martinez, 50 MJ 344 (1998)(summary disposition).
On Issue II, involving the exclusion of an
excited utterance by the military judge, I agree with the majority that
testing for "material prejudice to substantial rights" requires analysis
of the impact of the error on the outcome of the case. See United
States v. Armstrong, 56 MJ 76, 82 (2000) (Sullivan, J., dissenting).
Nevertheless, I disagree with the majority analysis of the record in this
case and would hold that the judges error was harmless. Article 59(a),
Uniform Code of Military Justice, 10 USC § 859(a). This was not constitutional
error. Appellant's defense, based on the victims consent, was adequately
presented to the members through the admission of his pretrial statement
to military criminal investigators. See United States v. Scheffer,
523 U.S. 303, 317, 118 S.Ct. 1261, 1269 (1998) (significant impairment
standard for constitutional violation). While nonconstitutional error occurred
in this case under Mil. R. Evid. 803(2), I am persuaded that such error
did not substantially impact the findings of guilty in this case. See
United States v. Adams, 44 MJ 251, 252 (1996).
This was a contested rape case. The victim's
testimony accusing appellant of rape was pitted against his written pretrial
statement (Prosecution Exhibit 2) asserting consent, evidence of good military
character, and an attack on the credibility of the alleged victim's testimony.
The excluded testimony that appellant said "you grabbed me first" to the
victim after she accused him of rape immediately after the alleged incident
is cumulative evidence already before the court (his written account of
the incident given to military investigators later that same day). Moreover,
comparing the written pretrial statement of appellant and Airman Sullivan's
testimony (R. at 133, 139), there was no possibility in this case that
the members could find appellant was admitting the truth of the alleged
victim's allegation when he threw up his hands and said "call the cops."
Finally, the fact that the victim may have grabbed appellant first is no
defense to a rape charge, and such a statement by appellant might even
be construed as an implicit admission by him that her accusation was true.
Accordingly, I find that if the judge erred in excluding appellants statement
"you grabbed me first," the error was harmless.
In summary, I accept the Governments concession
and I would remand this case to the Court of Criminal Appeals in accordance
with United States v. Martinez, supra.


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