United States v. Barry
201500064
| N.M.C.C.A. | Oct 31, 2016Background
- Appellant (SOCS Barry) and complaining witness (AV) dated; on January 13, 2013, after consensual bondage and digital penetration, appellant engaged in anal intercourse without AV’s consent while she was blindfolded and tied; AV protested and later bled and reported the incident to NCIS.
- Military judge convicted appellant, contrary to pleas, of one specification of sexual assault (penetration of AV’s anus with his penis causing bodily harm); sentence: three years confinement and dishonorable discharge (approved except discharge execution was deferred).
- Appellant raised four assignments of error on appeal: factual sufficiency; convening authority’s denial of rehearing/clemency; alleged improper redaction of AV’s psychotherapist records; and restriction of appellant’s allocution/sentencing testimony.
- Trial judge conducted in camera review of AV’s civilian therapy records under Mil. R. Evid. 513, provided redacted excerpts to parties; defense contested redactions as suppressing material impeachment/discovery evidence.
- Convening authority expressed strong concerns about fairness and judge’s temperament but, after SJA advice and record review, declined to disapprove findings or order rehearing and forwarded the case for appellate review.
- Appellate court reviewed factual sufficiency de novo and abuse-of-discretion for convening authority and judge’s evidentiary and sentencing rulings; it affirmed findings and sentence, finding no prejudicial error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Factual sufficiency of sexual-assault conviction | Appellant: evidence was insufficient because AV’s conduct and messages showed consent or supported a reasonable mistake of fact about consent | Government: AV’s credible testimony showed she repeatedly said no; consent to other acts did not imply consent to anal intercourse; mistake of fact was unreasonable | Affirmed conviction; appellate court, reviewing de novo, found evidence established guilt beyond a reasonable doubt and any claimed belief in consent would be unreasonable |
| 2. Convening authority abused discretion by denying requested rehearing/clemency | Appellant: convening authority’s stated doubts and comments about fairness/judge required disapproval or rehearing | Government: convening authority has broad, discretionary post-trial authority and acted after SJA advice and full review | Denial was not an abuse of discretion; convening authority properly considered materials and law and forwarded case for appellate review |
| 3. Military judge erred by redacting psychotherapist-patient records | Appellant: redactions withheld constitutionally required, discoverable impeachment material (demeanor change, disclosures, stressors, “story transforming,” relationship to convening authority) | Government: records were privileged under Mil. R. Evid. 513; only constitutionally required disclosures could overcome privilege; redacted material was immaterial/cumulative | No abuse of discretion; records privileged, redactions not material to guilt or credibility in a way that would have changed outcome |
| 4. Restriction of appellant’s allocution/sentencing testimony | Appellant: judge improperly interrupted/limited sworn sentencing testimony, preventing presentation of mitigation and evidence relevant to intent/mistake of fact | Government: judge properly prevented re-litigation of findings during sentencing and allowed broad mitigation testimony; sentencing testimony cannot be used to impeach findings | No abuse of discretion; judge properly limited impeachment of findings, ultimately allowed substantial mitigation testimony, and any error was harmless |
Key Cases Cited
- United States v. Beatty, 64 M.J. 456 (C.A.A.F.) (factual-sufficiency standard)
- United States v. Turner, 25 M.J. 324 (C.M.A.) (factual-sufficiency test)
- United States v. Washington, 57 M.J. 394 (C.A.A.F.) (independent factual-sufficiency review)
- United States v. Reed, 54 M.J. 37 (C.A.A.F.) (record-of-trial limitation)
- United States v. Kearns, 73 M.J. 177 (C.A.A.F.) (circumstantial evidence and intent)
- United States v. Vela, 71 M.J. 283 (C.A.A.F.) (proof of intent by circumstantial evidence)
- United States v. Goode, 54 M.J. 836 (N-M. Ct. Crim. App.) (credibility and discrepancies)
- United States v. Goodman, 70 M.J. 396 (C.A.A.F.) (mistake of fact requires honest and reasonable belief)
- United States v. Nerad, 69 M.J. 138 (C.A.A.F.) (convening authority discretion)
- United States v. Ruiz, 49 M.J. 340 (C.A.A.F.) (post-trial rehearing discretion)
- United States v. Lloyd, 69 M.J. 95 (C.A.A.F.) (abuse-of-discretion standard)
- Jaffee v. Redmond, 518 U.S. 1 (U.S.) (psychotherapist-patient privilege rationale)
- Pennsylvania v. Ritchie, 480 U.S. 39 (U.S.) (Confrontation Clause and pretrial discovery limits)
- Delaware v. Van Arsdall, 475 U.S. 673 (U.S.) (materiality of impeachment evidence)
- United States v. Morris, 52 M.J. 193 (C.A.A.F.) (materiality standard for impeachment evidence)
- United States v. Klemick, 65 M.J. 576 (N-M. Ct. Crim. App.) (in-camera review of privileged records)
- United States v. Sullivan, 70 M.J. 110 (C.A.A.F.) (limits on cross-examining psychological evidence)
- United States v. Johnson, 62 M.J. 31 (C.A.A.F.) (prohibition on impeaching findings during sentencing)
- United States v. Collier, 67 M.J. 347 (C.A.A.F.) (assessing whether excluded cross-examination would significantly affect credibility)