United States v. Morales
ACM 39018
| A.F.C.C.A. | Sep 13, 2017Background
- Appellant was convicted at a general court-martial of one aggravated assault (Oct 2010) and two assaults consummated by battery (Nov 2011, Dec 2013) against his then-wife YM; sentence included BCD, 4 months confinement, reduction to E-4, reprimand.
- Prosecution evidence included YM’s testimony, medical records and doctors confirming a broken finger (Oct 2010), photos of bruises, and corroborating witness testimony (Appellant’s sister, a friend).
- Defense sought YM’s medical and mental-health records pretrial. YM had voluntarily provided three pages from one civilian counseling visit; she otherwise asserted the psychotherapist-patient privilege under Mil. R. Evid. 513.
- Executive Order 13,696 (effective 17 Jun 2015) removed an express “constitutionally required” exception from Mil. R. Evid. 513(d)(8). EO §2 preserved prior rulings but did not mandate use of the old rule for pending matters.
- The military judge, applying the post‑EO version of Mil. R. Evid. 513, denied Defense motions to compel full production and declined to conduct in camera review because Defense failed to show a specific factual basis demonstrating a reasonable likelihood the records contained admissible evidence under the rule’s exceptions.
- On appeal, Appellant argued (inter alia) that application of the revised rule (and deletion of the constitutional exception) violated his Sixth Amendment confrontation, compulsory process, and due process rights, and that YM waived privilege by disclosing part of her records; the court affirmed convictions and sentence.
Issues
| Issue | Appellant's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the military judge abused discretion by applying the post‑EO Mil. R. Evid. 513 (no constitutionally‑required exception) | EO §2 allowed trials referred before effective date to proceed under old rule; applying the new rule was improper and retroactive | EO §2 is permissive, not mandatory; new rule applied to cases tried/arraigned after EO; no pre‑EO rulings existed to protect | No abuse of discretion; applying the new rule was permissible |
| Whether deletion of the explicit constitutional exception deprived Appellant of constitutional rights (confrontation, due process) | Removal nullified a required constitutional exception and impaired Appellant’s rights to obtain records needed for confrontation / defense | Deleting the explicit clause does not change Constitution’s reach; rules cannot supersede the Constitution; burden on Defense to show need | Deletion is not per se unconstitutional; Constitution still governs, but Defense here failed to make the necessary showing |
| Whether YM waived Mil. R. Evid. 513 privilege by voluntarily disclosing three pages of counseling records | Partial disclosure waived privilege as to related records under Mil. R. Evid. 510 | Disclosure pertained to a single consultation and did not waive privilege over other distinct communications | No plain error; disclosure did not waive privilege over other counseling records |
| Whether the military judge erred in refusing in camera review / production of YM’s mental‑health records | Defense relied on Ritchie/Chisum principles and Brady to seek in camera review; argued constitutional right to review even if speculative | Government: Defense offered only speculation and no specific factual basis; records not in Government possession so not automatically Brady; Mil. R. Evid. 513(e)(3) requires a preponderance showing before in camera review | Denial affirmed: Defense failed to show specific factual basis reasonably likely to yield admissible, non‑cumulative evidence, so no abuse of discretion |
Key Cases Cited
- United States v. Weiss, 510 U.S. 163 (discussion of deference to Congress in military matters)
- Jaffee v. Redmond, 518 U.S. 1 (recognition of psychotherapist‑patient privilege)
- Pennsylvania v. Ritchie, 480 U.S. 39 (due process disclosure principles in child‑abuse context)
- Brady v. Maryland, 373 U.S. 83 (prosecution must disclose favorable material evidence)
- Giglio v. United States, 405 U.S. 150 (impeachment evidence and due process)
- Napue v. Illinois, 360 U.S. 264 (false testimony and due process)
- United States v. Behenna, 71 M.J. 228 (materiality standard for withheld evidence)
- United States v. Chisum, 75 M.J. 943 (military judge’s duty to review mental‑health records where specific showing made)
- United States v. Jasper, 72 M.J. 276 (waiver principles under Mil. R. Evid. 510)
- United States v. McClour, 76 M.J. 23 (burden of proof instruction issue referenced by court)