2013 WL 2443254
AFCCA2013Background
- Appellant (Sousa) was convicted by general court-martial of forcible sodomy against DS, his then-wife, under Article 125, UCMJ.
- Sentence: bad-conduct discharge, 2 years confinement, and reduction to E-1.
- Prosecution's case relied solely on DS and BS testimony about sexual relations and alleged forcible sodomy in Nov. 2006.
- DS testified to longstanding controlling behavior, including coercive sexual demands and videotaping; she claimed a November 2006 forcible sodomy incident occurred while she was pregnant.
- BS testified to similar coercive behavior and that the appellant advocated anal sodomy; she did not report the 1997 incident.
- DS later learned of the taped videos, confronted the appellant, and obtained discovery that copies existed; the DVD was recovered by OSI.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether exclusion of the DVD under Mil. R. Evid. 412 was error | Appellant seeks admission of the DVD to prove consent and bias. | State contends proper balancing restricted admission; constitutionally required evidence addressed. | No reversible error; contents not all constitutionally required; exclusions did not deny cross-examination or fair trial. |
| Whether consensual sodomy should have been instructed as a lesser-included offense | Waiver not clearly shown; consensual sodomy could be lesser-included. | Defense affirmatively waived any instruction; no plain error. | Appellant waived; court did not reach whether consensual sodomy would be a lesser-included offense. |
Key Cases Cited
- United States v. Ellerbrock, 70 M.J. 314 (C.A.A.F.2011) (questions admissibility of Rule 412 evidence; balancing test framework)
- United States v. Gaddis, 70 M.J. 248 (C.A.A.F.2011) (retroactive application of 412(c)(3) balancing when evidence is constitutionally required)
- United States v. Harcrow, 66 M.J. 154 (C.A.A.F.2008) (discussion of 412 balancing and constitutional requirements)
- Van Arsdall, 475 U.S. 673 (1986) (due process/fair trial limits on evidence; bias and relevance balancing)
- United States v. Manns, 54 M.J. 164 (C.A.A.F.2000) (need for 403 balancing when determining constitutional necessity)
- United States v. James, 61 M.J. 132 (C.A.A.F.2005) (cross-examination on witness motivation; limits of extrinsic impeachment)
- United States v. Smith, 50 M.J. 451 (C.A.A.F.1999) (waiver of lesser-included offense instruction where trial strategy discussed)
- United States v. Davis, 53 M.J. 202 (C.A.A.F.2000) (requirement that lesser-included offenses be instructed if raised by evidence)
- United States v. Pasha, 24 M.J. 87 (C.M.A.1987) (treatment of waivers and appellate rights regarding instructions)
- United States v. Mundy, 9 C.M.R. 130 (C.M.A.1953) (illustrates waiver/forfeiture concepts in instruction decisions)
- United States v. Banker, 60 M.J. 216 (C.A.A.F.2004) (privacy interests in 412 balancing prior to 1 Oct. 2007)