*1 STATES, Appellee, UNITED JOHNSON, Airman, E.
Antoinette Senior Force, Appellant. Air
U.S.
No. 04-0611.
Crim.App. No. 34889. Appeals Court of
U.S. Forces. Armed
Argued March 2005. July
Decided
CRAWFORD, J., opinion of delivered the Court, GIERKE, C.J., and in which ERDMANN, JJ., joined. EF- BAKER and FRON, J., opin- separate dissenting filed ion. Appellant:
For L. McDade Colonel Carlos Terry Major L. (argued); Major McElyea, Winner, K Major M. James Sandra brief). (on Whittington Major Appellee: For Johnson John C. D. (argued); Robert Lieutenant Colonel Gary F. Combs and Lieutenant Colonel (on brief). Spencer Judge opinion CRAWFORD delivered the of the Court.
Contrary
pleas,
to her
general
victed
court-martial of officer
specifications
members of two
enlisted
by battery,
specifi-
assault
one
consummated
cation of
on a
member
assault
forces
duties,
speci-
in the execution of her
and two
fications of assault with
to commit
intent
voluntary manslaughter,
of Afi-
violation
Military
eles 128
Uniform Code of
(UCMJ),
§§
Justice
convening
respectively.
authori-
ty approved
adjudged
of con-
years,
of all
finement for fourteen
forfeiture
allowances,
E-l,
pay and
reduction to
discharge.
dishonorable
*2
The United States Air
ship
They argued
Force Court of
with Amn Wesolowski.
Appeals
Criminal
found both the
and
appellant
and the
choked A1C Wheeler.
fact,
correct
law and
but reduced
This incident formed the basis for one
years.
the confinement to ten
United States
specification
of assault consummated
a
Johnson,
34889,
No. ACM
2004 CCA
battery on A1C Wheeler.
(A.F.Ct.Crim.
133,
LEXIS
The went to the Spang- was stationed at and alterca- Base, dahlem Air Germany, assigned tion appellant, and ensued between the Equipment the 52d Squad- Wheeler, Maintenance ap- and Amn Wesolowski. The (A1C) ron. She met Airman First Class pellant attempted to take A1C Wheeler’s Wheeler, Amy member, forces handgun but was unsuccessful. She then they began and relationship lesbian handgun racks, seized a storage from the year. lasted relationship about one The magazine, inserted a loaded chambered a turbulent, resulting arguments was and round, pointed weapon and at A1C physical confrontations. When A1C Amn Wheeler and Wesolowski. A1C Wheeler tried to end relationship in Wheeler aimed her service at the January appellant took an over- appellant repeatedly and warned her pills apparent dose of in an ges- suicidal drop gun. appellant The did not com- Thereafter, they ture. resumed their rela- ply. appellant shot Wheeler tionship. leg, incapacitating her. deployed A1C Wheeler served at a loca- May tion between September and At the outset of appar- was return, Upon her A1C Wheeler broke off relationships ent that the ap- between the appellant. the affair with the Sep- In late Wheeler, pellant, A1C and Amn Wesolow- tember A1C Wheeler met Airman ski would be (Amn) matters concern. The Wesolowski, Nichole another securi- government acknowledged member, that the nature ty they forces became relationship between appellant suspected friends. The that A1C appellant relevant, romantically Wheeler was involved with be Amn jealous keep specific was and an- moved to out evidence of gry. acts, This led to the two incidents that agreed. to which the defense charges formed the basis for the in this government also moved to exclude evi- case. dence relationship between A1C Wheeler and Amn Wesolowski. The de-
The first incident occurred in A1C fense maintained that it was dormitory Septem- Wheeler’s room in relevant and late early necessary ber or appellant October 2000. The show bias under Mil. R. Evid. 608(c). upset was about A1C judge agreed, Wheeler’s relation- pretrial confinement appellant explore the nature the defense to allowed armory. resulting from the incident at generally. arrangements to store making While presented trial includ- The evidence property, appellant realized the televi- relationships. about these ed missing, it stolen. reported sion about her lesbian A1C Wheeler testified ques- *3 May investigators the On appellant and the the missing about the tioned A1C Wheeler The cross-exami- disputes between them. amade written statement television. She of A1C Wheeler focused on her nation knowledge denying any of its location. appellant. lesbian affair the The tri- counsel al defense asked A1C Wheeler ar- May Trial on 29 2001 with resumed dating Amn Wesolowski she started guments findings. court-martial on armory,” the at the “right after incident above, guilty appellant found as noted the it. she denied A1C Wheeler denied but sentencing hearing Both and the followed. explained Amn kissing and Amn testi- A1C Wheeler Wesolowski her; to kiss that Amn Wesolowski tried sentencing concerning during fied the case demurred and Amn Wesolowski she impact the of the offenses on them. the kissed her on cheek. admitted She investigators questioned After that she Amn Wesolowski had Amn about the television. She Wesolowski dormitory changed adjoin- to share rooms helped A1C move indicated she Wheeler after ing rooms the incident. Trial de- dormitory In the television to a room. fense counsel’s cross-examination chal- statement, Amn noted a same Wesolowski lenged extensively Amn Wheeler about armory at fact about the incident investigators false statements to about that, reported she had She be- omitted. relationship, alleged in- her lesbian armory opened fore A1C Wheeler prior consistencies her statements. door, handgun she drew her “in fear of her defense called A1C as a witness Jes- life,” what she Amn Wesolowski asked her Ackerman, sica forces investi- doing, was and A1C Wheeler re-holstered gator, who Amn related that Wesolowski Amn said she did weapon. Wesolowski dating said she had A1C started Wheeler why had know not mentioned shortly armory after the incident. before, it thought than she was parties May 2001. Both rested on Due relevant. commitments, conflicting the trial July investigators re- On 25 trial recessed the for three weeks. The the televi- interviewed A1C Wheeler about proceeding arguments oral resumed with sion. indicated that she re- She when findings May on 29 on deployment, turned from the she found recess, During investiga- Air Force television, pick inviting up note her to allegation into tors looked an Apparently and she the television did so. belonging Wheeler had stolen a television may damaged fell have been while appellant. During previous possession. A1C Wheeler’s summer, appellant purchase agreed made official admitted that she a false a television from another airman for investigators she denied statement to when issue, Delivery was an because of $200.00. knowledge of the location television. conflicting deployment leave and sched- appellant’s She said she did because They arrangement an ules. worked out me,” lawyers have “would used it appellant where the mailed check to that, “they say I would have tried to seller, who cashed it. Just before de- have wasn’t a credible witness and I would the seller and his ploying, left a note room my lost case.” inviting appellant key, or the Wheeler There was one other incident room. get the television from his When December, that came to the attention of the defense the television he returned returned, August Erica counsel. Ms. gone key so the On By then, Shipp lobby all into the of the base assumed was in order. walked seller office, women, ski, Finance and saw two the additional evidence would not have uniform, kissing. reported She it to a had a contributing substantial effect on the duty. sign-in clerk on He checked or the sentence. He roster, and one of the names was “Weso- declined to consider the additional evi- lowski.” dence A1C Ackerman remembered after trial.
The defense counsel moved for a new trial They under R.C.M. 1210. based the Johnson, *2-*4, 2004 CCA LEXIS request evidence,” “newly *15-*21, *l-*2, 2004 WL *6-*8. specifically report Amn Wesolowski’s A1C Wheeler drew and re-holstered her DISCUSSION door, opening before and A1C contends that the discov Wheeler’s false official statement about *4 ered affecting evidence the of Air knowing the missing location of the televi- (A1C) Amy man First Class J. Wheeler and sion. The defense counsel also asked the A1C* Nichole L. probably Wesolowski would military judge to consider additional state- produce substantially a more favorable result witness, previous ments from their for at a trial new and that the Ackerman, specific about conduct between allegedly perpetrated by fraud on the court Amn argu- A1C Wheeler and (and degree by to lesser ing that just A1C Ackerman had remem- Wesolowski) contributing had a substantial bered the details. The defense also assert- findings guilty effect on the of and the sen ed that A1C Wheeler and Amn Wesolowski tence. The Government invites us to con by committed fraud on the court conceal- largely clude that the new evidence is cumu ing the personal extent of their relation- military lative and that neither judge nor ship. the court below in denying Appellant’s erred reconvened the request agree for new trial. We with the court-martial for a session and Government. took statements and evidence on the mo- 73, UCMJ, § Article 873 tion. Scaff, See United States v. 29 M.J. petitions allows for new trials “on the 60, (C.M.A.1989). 65 A1C Wheeler and grounds newly of discovered evidence or Amn Wesolowski right asserted their fraud on the court.” Implementing this convening remain silent. The authority provision, UCMJ Rule for Courts-Martial request denied the defense for testimonial (R.C.M.) (3) 1210(f)(2), provide that: immunity for these witnesses. The mili- tary judge findings entered extensive of (2) Newly discovered evidence. A tri- new law, fact and conclusions of and denied the granted grounds al shall not be on the of Applying motion. the criteria in R.C.M. newly peti- discovered evidence unless the 1210, military judge found that tion shows that: false official statement about the television (A) The evidence was discovered after the report drawing of and re-holster- trial; ing was discovered after (B) The evidence is not such it that would and was not such that it would have been by petitioner have been discovered discovered before trial in the exercise of of trial time the exercise of due However, diligence. due he concluded that diligence; and probably the new evidence would not have (C) substantially evidence, resulted in a more favorable if con- result for military judge the accused. The light sidered a court-martial in all of that, light evidence, also concluded pertinent of the evidence probably would admitted at trial produce substantially about more favorable re- between A1C Wheeler and Amn Wesolow- sult for the accused.
* Although charge referred to as Airman in the the time of trial and is referred to such as in this below, opinion sheet and the Weso- opinion. apparently lowski was an Airman First Class at
199 make sufficiently believable to (3) fraud on Fraud on court-martial. No probable. favorable result a more un- a new trial the court-martial warrants contributing effect it had a less substantial (C.A.A.F.1998). 69 M.J. or the ad- guilty ruling military judge’s review a “We
judged. ... for abuse of new trial petition on a Humpherys, v. United States discretion.” un- Although Appellant’s motion was made (C.A.A.F.2002). An abuse M.J. governs post-trial which der R.C.M. upon of fact “if the discretion occurs sessions, correctly applied ruling sup are predicates his which he 1210, as discussed the standards R.C.M. record; if ported by incorrect States United Scaff: deciding him in used legal principles were after trial which If evidence is discovered motion; application if cor or his this trial grounds constitute for a new particu the facts of a legal principles to rect 1210(f), might consid- under RCM be clearly lar case is unreasonable.” United Williams, (C.M.A. which arises after trial ered “matter States v. 1993). substantially legal affects suffi- which
ciency any findings or the trial denying Appellant’s request, new meaning of RCM sentence” within military judge analyzed the new evidence 1102(b)(2). However, even the drafters the other evidence at *5 weighed the Manual did not intend such an inter- of military judge’s conclusions of law trial. The Rule, pretation persuad- of this we still are apply of both R.C.M. properly the tests 1210(f)(3). 1210(f)(2) 39(a) con- and R.C.M. He empowers that Article ed Code evidence, to- that the new considered cluded military judge post-trial to convene a evidence, gether all not other would newly session consider discovered evi- substantially “probably produce more fa- a and to ac- dence take whatever remedial He con- Appellant. result” for also vorable appropriate. tion is that, even if the members were cluded (C.M.A.1989). 60, 29 M.J. 65-66 by perjury the additional evidence of vinced that A1C Wheeler and A1C Wesolowski opined requests “This Court has court, been a fraud on the there had trial, rehearings for a new and thus perjured had “a evidence had not substantial reopenings proceedings, generally of trial are contributing any effect or granted only if a mani disfavored. Relief is adjudged.” the sentence trial, injustice result new fest would absent a Military In context of Rule Evidence rehearing, reopening proferred or based on (M.R.E.) 412, we have indicated that de evidence.” United States discovered material, the termining whether evidence is (C.M.A.1993). Williams, 352, 37 356 v. M.J. “ importance at: ‘the looks Brooks, In v. held United States this Court for which the evidence was offered the issue case; to the issues in relation [wjhen presented petition with a for new dispute; to which this issue is in the extent a reviewing court must make the nature of other evidence in the ” determination, credibility as it must insofar pertaining this issue.’ case United “newly 20, determine whether 26 Colon-Angueira, 16 M.J. States evidence, Dor (C.M.A.1983)(quoting considered court-martial United States v. (C.M.A.1983)). 1, evidence, sey, 6 We believe light pertinent of all other of a is useful as well in context this test substantially probably produce a would petition for a new trial under R.C.M. result for accused.” more favorable 1210(f)(2)(C). reviewing RCM determining the new In proferred whether the does determine substantially fa- produce more true; nor it does determine Appellant, result for court below vorable merely correctly It if the noted that: historical facts. decides 200 petitions [w]hen for a new trial are pistol, submit Appellant A1C Wheeler’s then admit- “ Court,
ted to this we ‘preroga have the attempted ted that she had to draw A1C weighing ‘testimony tive’ of at trial weapon only Wheeler’s after A1C Wheeler the’ evidence ‘to determine which and pinned A1C Wesolowski had her ” Bacon, is credible.’ United States v. armory. Appellant floor then admit- 489, (C.M.A.1982) M.J. (quoting Unit rack, ted that gun she took a 9mm from the Brozauskis, ed States v. 46 C.M.R. got magazine, which she loaded into the (N.C.M.R.1972)). (while Consistent with federal gun, and then chambered a round practice, civilian may on). we review the evi leaving safety Finally, Appellant dence “both in terms ‘of as well pointed admitted that at both ” as materiality.’ (quoting Id. Jones v. A1C Wheeler and A1C but de- States, (4th United 279 F.2d any Cir. nied intent to harm either. 1960)). the e-mail from to a third Johnson, *22-*23, 2004 CCA party, LEXIS day dated the armory before the inci- 2004 WL at *9. erroneously dent and delivered to A1C Wheeler, Appellant stated:
Appellant’s new evidence raises several
I’ve been an a[******] ever since she
(1)
possibilities:
a fact-finder could conclude
be,
up
try
broke
Ime.
not to
I
from this new
evidence that
just don’t understand.
I know she’s tired
policewomen, who
putative
were the
victims
talking
gonna
about it so I’m not
bring
Appellant’s crimes,
engaged
had
in care-
up anymore
either.
I know I make her
(2)
fully
lies;
crafted
the new evidence could
bad,
sound
really
but it
isn’t all her fault.
strengthen the motive to lie of the two “vic-
pretty
I’ve done
up
some
stuff
f[*****]
tims,” one of whom
Appellant during
shot
fight
her too.
couple
We had
of weeks
(3)
melee;
falsely
Wheeler’s
sworn
ago and I
pretty
choked her.
I hurt her
statement to the Air
Special
Force Office of
give
bad----
anything
I’d
to be
(OSI)
[Weso-
Investigations
admittedly
made
*6
right
hope
lowski]
now. I
she knows how
purpose
for the
protecting
credibility
her
lucky she is.
right
She better treat her
Appellant’s
trial and
degree
evinces the
I’ll
too.
kill
my
f[******]
that
with
b[****]
which A1C Wheeler had
integ-
sacrificed her
bare hands.
rity
aas
law enforcement officer in favor of
(4)
interests;
her own
and
the new evidence
Although Appellant’s
is,
new evidence
important during
could be
sentencing,
as
surface,
similar in nature to that exam
making
well as in the
findings,
because
by
ined
this Court in United States v. Sztu
both A1C Wheeler and
gave
A1C Wesolowski
ka,
(C.A.A.F.1995) (“[A]
43 M.J.
impact”
“victim
testimony.
See R.C.M. petition
may
for new trial
upon newly
rest
1001(b)(4).
‘substantially
evidence that would
impeach[
prosecution
]’ critical
evidence ‘on a
hand,
On the
other
as the
”) (involving
material matter.’
purported ad
noted,
and
correctly
below
this new
put marijuana
mission
husband that he
in
weighed against
evidence must be
the other
food),
appellant’s
as well as both United
regard,
evidence at trial.
In this
and in
Singleton,
States v.
41 M.J.
204-07
testimony
addition to the
of both A1C Wheel-
(C.A.A.F.1994) (ordering a new trial on mul
er and A1C
Appellant’s oral
tiple source
perpetrator
evidence of alternate
statements
compelling
and e-mails are
evi-
of threat
rape),
and
and United States v.
only
dence not
guilt
poor
of her
and her own
Niles,
(C.A.A.F.1996)
459-60
credibility, but also of the extent to which the
(ordering new trial on
conflicting
evidence of
relationship between A1C Wheeler and A1C
by prosecutrix
case),
factual
rape
accounts
in
already
Wesolowski was
before the members.
distinguishable.
it is
Appellant’s
OSI,
oral statement
to the
First,
first maintained that she remembered
the new evidence here does not
nothing
armory
directly
incident. When con-
Appel
relate
to the assaults of which
fronted with
fingerprints
convicted, i.e.,
evidence of her
on lant was
the evidence does not
EFFRON, Judge (dissenting):
presented
new version of the facts
offer some
The trial was not
one-on-one
at trial.
assaulting Air-
charged with
Appellant was
testified;
battle: all three women
testimonial
(A1C)
and A1C
First Class
Wheeler
man
were recounted
oral admissions
Appellant’s
separate
incidents. As
two
Wesolowski
agent;
incriminating e-
and an
an OSI
majority opin-
in detail in both
described
jealousy and
Appellant, expressing
from
mail
court,
opinion
lower
ion and
assaults,
rage,
admitting
and
to one
fights that ensued
incidents involved
both
was received
evidence.
words,
relationships,
strained
angry
after
by Appellant.
In the
attempts
suicide
and
Second,
while
cer-
witnesses
incident,
Ap-
A1C
testified that
first
Wheeler
issue,
tainly was an
the record
strewn
pellant
Appellant denied
aggressor.
was the
dishonesty
three
pertaining
to all
indicia
occasion,
on that
and
striking A1C Wheeler
A
fact-finder could have
airmen.
reasonable
engaged
fight
that she had
testified
lying,
that all
concluded
three women were
period,
during the same
which
A1C Wheeler
varying degrees.
Appellant’s admis-
Given
instigated
In the
by A1C Wheeler.
had been
e-mail,
and her
it was
an abuse of
sions
incident,
and
Wes-
second
A1C Wheeler
for the
and
discretion
Appellant
was the
olowski each testified
court below determine that even substan-
Appellant
had threatened
aggressor
po-
impeachment material or
tial additional
weapon. Appellant
with a
testified
them
perjury
require-
not meet
tential
aggressor,
was the
A1C Wheeler
(3).
1210(f)(2),
ments of R.C.M.
herself,
to kill
she had threatened
airmen,
weapon.
with the
Third,
ob-
“forgotten”
A1C Wesolowski’s
drawn,
having
prosecution’s primary
of A1C
evidence con-
servation
Wheeler
reholstered,
from A1C Wheeler
sisted
then
her
before A1C
As noted in the ma-
and A1C Wesolowski.
opened
armory
Appel-
door to
Wheeler
presented
jority opinion,
prosecution
oth-
lant,
ambiguous
is of
effect.
it further
While
evidence, including pretrial
er
statements
impeaches
credibility,
Wesolowski’s
concerning
by Appellant
physical
made
also serves
establish
ani-
with A1C Wheeler and her
encounters
very
bolstering
Appellant,
afraid of
state-
mosity for A1C
These
Wesolowski.
prior
assaults which
ments,
significant, reflected
tumul-
while
convicted.
among
parties
tuous interaction
Finally,
evidence that A1C Wheeler
incidents,
not amount
to an
and did
two
*7
kissing
had been
in the
A1C Wesolowski
charged
admission
elements
largely
uniform
finance office while in
was
offenses.
already significant
cumulative.
There
position
Ap-
trial
The
at
was that
defense
from
con-
which the members could
attacks,
pellant
physical
not
did
initiate
clude that A1C Wheeler
A1C Wesolow-
responded
physical
attacks
instead
involved,
romantically
sup-
ski
so as to
were
context,
by A1G
In
initiated
Wheeler.
port Appellant’s
of bias
motive to
claim
party
of
Weso-
a third
—A1C
lie.
key component
prosecu-
lowski—was
case, particularly
grow-
the charges
on
tion’s
incident, including the
ing out of the second
CONCLUSION
intent to commit mur-
charge of assault with
Reviewing
military judge’s ruling
sought to
der. The defense
undermine
below, holding the context
showing
of A1C Wesolowski
trial,
we
of the standard of review for new
intensity
relationship
with
Appellant’s request
that the denial of
hold
provided
a motive
lie.
trial was
an abuse of discretion.
a new
prosecution
outset
At
Air
limine
sought through
The decision of the United States
to exclude
motion
regarding
relationship
Appeals
any
affirmed.
be-
Force Court Criminal
is
tween A1C Wheeler and
respect
A1C Wesolowski.
accused.” With
to evidence of a
military judge
denied the motion and
court-martial,
fraud on the
the defense must
allowed the
explore
defense to
the relation-
show that the fraud
“had
substantial con-
ship
purposes
for the
of demonstrating bias
tributing
effect on a
or the
608(c).
Military
under
Rule of Evidence
At
1210(f)(3).
adjudged.”
R.C.M.
trial, A1C Wheeler and A1C Wesolowski
determined that
sought to
relationship, deny-
minimize their
new evidence and evidence of fraud did not
ing
any
intimacy
that there was
sexual
or an
standards,
meet
majority
these
ongoing
homosexual
prior to the
military
cludes that
did
err.
charged
two
incidents. The defense chal-
lenged
61 M.J. at
I
testimony through
respectfully disagree.
199-201.
cross-examina-
tion and
contradictory
the introduction of
military policy
Current
provides
power
best,
prior statements. At
the evidence at
ful incentive to conceal or minimize a homo
trial about the nature of their relationship
law,
relationship. By
sexual
a servicemem
was inconclusive.
engages
ber who
in homosexual conduct or
post-trial
39(a),
At a
session under Article
homosexual,
who states that he or she is a
Military
(UCMJ),
Uniform Code of
Justice
10 subject
mandatory
discharge,
very
§
U.S.C.
the defense moved for a
654(b)
exceptions.
§
limited
10 U.S.C.
variety
new trial on a
grounds,
including
(2000).
policy
This
upon congres
is based
fraud on the court committed
the two
presence
sional
that “[t]he
primary
against Appellant
witnesses
—A1C
persons
armed forces of
who demonstrate a
Wheeler and A1C Wesolowski.
In the mo-
propensity
engage
or intent to
in homosexual
tion, the
defense cited
discovered evi-
acts would
an unacceptable
create
risk to the
dence of witnesses who saw the two airmen
high
morale, good
standards of
order and
bed;
sleeping
various times
in the same
discipline, and unit cohesion that are the
kissing
lips;
engaging
in other
military capability.”
essence of
displays of affection. The defense also relied
654(a)(15).
§
person
A
mandatory
who faces
upon post-trial evidence confirming Appel-
discharge may
only
be retained
or
pretrial
he
allegation
lant’s
that A1C Wheeler
in an
process
had stolen her
establishes
administrative
television set. The
evidence indicated that
atypical
A1C Wheeler and
the conduct
stringent
under a
A1C Wesolowski had taken
654(b).
the television and
§
test.
Regardless
U.S.C.
attempted to hide it in the rooms of other
might
what decisions
be made in the future
addition,
airmen.
A1C Wheeler made a
respect
constitutionality
of that
post-trial statement
in which she acknowl-
matters,
policy and related
see Lawrence v.
edged lying to defense counsel about the Texas,
539 U.S.
123 S.Ct.
prior
television set
to trial because she was
(2003);
L.Ed.2d 508
United States v. Mar
concerned that defense counsel would have
cum,
(C.A.A.F.2004),