12 M.J. 842 | U.S. Army Court of Military Review | 1982
OPINION OF THE COURT
Appellant was convicted by members at his general court-martial of rape, in violation of Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920 (1976). He was sentenced to a bad-conduct discharge,'confinement at hard labor for three years, total forfeitures, and reduction to Private E-l.
The record of trial reveals that on the evening of 29 June 1980, the victim, Esperanza Senior, and her sister Emilia visited Fort Davis, Panama, for the purpose of inquiring about an upcoming Fourth of July party. Here they met with a friend, Private Max Lomax in the company of the appellant. The group walked to a spot outside a barracks where they conversed about life in Panama. While there, several individuals came up and spoke with Lomax and one of them handed him a room key. After a while, Esperanza asked Lomax to take her.
Appellant’s defense was based upon consent. He testified that he believed Esperanza was willing to submit to the sexual demands of those in the room. Believing her consent extended to him he placed his penis between her legs but was unable to achieve an erection. He denied participating in her initial abduction or placing a towel in her mouth.
During an investigation conducted pursuant to Article 32, UCMJ, 18 U.S.C. § 832 (1976), Esperanza Senior was questioned by the Government representative and cross-examined by two of eleven defense lawyers before she suffered a nervous breakdown for which she was admitted to a mental health facility. When after a week it appeared as if she could again testify, she refused to continue. After repeated attempts to obtain her voluntary appearance, the investigating officer ruled that she was unavailable and completed the hearing without her.
At trial, appellant’s defense counsel made a motion to reopen the Article 32 investigation and order the appearance of the prosecutrix, Ms. Senior, or, alternatively, that the court compel her to submit to a deposition. The military judge denied both the request to reopen the Article 32 and the request to order a deposition.
I
Appellant contends he was denied a due process right to cross-examine Esperanza Senior at the Article 32 investigation. We disagree.
Article 32 does not give an accused the absolute right to cross-examine adverse witnesses. It provides that at such investigations an accused shall be given the right to cross-examine witnesses “if they are available.” Where a request for the production of an adverse witness is made, the determination of availability rests as a matter of necessity within the sound discretion of the investigating officer. United States v. Roberts, 10 M.J. 308 (C.M.A.1981). In the instant case, this determination was based upon Esperanza Senior’s adamant refusal to testify at any future Article 32 hearings following her nervous breakdown and hospitalization. As she was a foreign national, compulsory process under Article 46, UCMJ, 10 U.S.C. § 846,
In United States v. Chestnut, 2 M.J. 84 (C.M.A.1976) the Court of Military Ap
II
Appellant contends that the evidence is insufficient to sustain a conviction of rape. We disagree. The testimony of Esperanza identifies appellant as one of the assailants. The testimony of an observer who saw the appellant in the room with his pants down approaching his victim who was naked and being held down by other soldiers, as well as the appellant’s own incriminating statement that he was present during the episode and concealed Esperanza’s whereabouts from her sister are sufficient in our view to convict appellant either under the theory that he personally raped the victim or that he aided and abetted those that did.
III
Appellant contends the pretrial advice was deficient as it did not apprise the convening authority of a material fact: namely, that the victim refused to undergo full cross-examination by all eleven defense counsel. The test for materiality is whether there is a fair risk the omission of fact would mislead the convening authority in his prosecutorial decision to determine the appropriate level of court-martial or what charges should be referred. United States v. Foti, 12 U.S.C.M.A. 303, 30 C.M.R. 303 (1961); United States v. Skaggs, 40 C.M.R. 344 (A.B.R.1968). Examined in this light we are satisfied that information that the victim had refused further cross-examination because she had suffered a mental breakdown would not inure to the accused’s benefit by changing either the level of court-martial or the charges referred. Assuming this advice should have been included, a later oral communication cured any conceivable error. United States v. Treadwell, 7 M.J. 864, 866 n.2 (A.C.M.R.1979).
IV
We find that the investigating officer did not violate his role as a quasi-judicial officer under Article 32, UCMJ, by consulting without notice to defense counsel with an impartial legal advisor who in no way served as a member of the prosecution.
V
Finding no prejudice to the appellant from the post-trial delay, there was no reversible error. United States v. Banks, 7 M.J. 92 (C.M.A.1979).
The findings of guilty and the sentence are affirmed.
. Article 46 concerns the service of process in court-martial cases to compel witnesses to appear and testify. Such process is similar to that which courts of the United States may lawfully issue and runs only to any part of the United States, or the Territories, Commonwealths, and possessions.
. An analogous situation exists for a civilian accused who at a preliminary hearing requests a material witness be made available. Although the courts generally favor production, at least where the witness will have some bearing on the determination of probable cause, case law suggests that the right to confront and cross-examine witnesses at pretrial hearings is not absolute. Coleman v. Burnett, 477 F.2d 1187 (D.C.Cir.1973); Ross v. Sirica, 380 F.2d 557 (D.C.Cir.1967). A witness may be excused from testifying at a preliminary hearing where physical or psychological harm might ensue. Washington v. Clemmer, 339 F.2d 715 (D.C.Cir.1964). The courts have also recognized that rape victims, especially where the crime is committed under aggravated circumstances, may undergo substantial risk of serious psychological harm by testifying. See generally Warren v. United States, 30 Cr.L. 1023 (D.C.Cir. October 6, 1981); People v. Gomez, 26 Cal.App.3d 225, 103 Cal.Rptr. 80 (1972); People v. Lombardi, 39 A.D.2d 700, 332 N.Y.S.2d 749 (1972) aff'd 33 N.Y.2d 658, 348 N.Y.S.2d 980, 303 N.E.2d 705 (1973).
. Captain Warthen, the legal advisor, occupied the position of Chief of Administrative Law and