*1 STATES, Appellee, UNITED TANKSLEY, Captain, H.
Marion Navy, Appellant. U.S. No. 99-0666. Crim.App. No. 96-1402. Court of U.S. the Armed Forces. 2,May Argued 2000. Sept. 25, Decided Gierke, J., concurring opinion. filed
Sullivan, J., concurring in filed part in the result.
Effron, J., opinion concurring filed part. part dissenting *2 Appellee:
For K. Lieutenant Janice JAGC, O’Grady, (argued); USNR Colonel Sandkuhler, USMC, Kevin M. and Com- (on Irvin, JAGC, Eugene mander E. USN brief). Judge
Chief CRAWFORD delivered the opinion of the Court. pleas,
Contrary Captain Tanksley, a to his doctor, Navy violating was convicted of general regulation, specifications lawful five statements, making false official indecent with a liberties female under age justice obstructing communicat- threat, ing swearing, false violation 92, 107, of Articles Uniform Code Military Justice, 892, 907, §§ 10 USC The members sentenced months, cоnfinement for 38 forfeiture $3,500 pay months, per month for 30 convening authority ap- dismissal. The proved adjudged sentence but sus- pended adjudged period forfeitures months, appellant pro- conditioned viding them allotment his wife. The Court of Criminal affirmed. 50 MJ January granted On we review following issues: WHETHER THE LOWER COURT ERRED IN FINDING THE EVIDENCE WAS LEGALLY SUFFICIENT TO SUS- TAIN A FINDING OF IN- GUILTY TO DECENT LIBERTIES.
II THE
WHETHER LOWER COURT ERRED IN FAILING TO FIND THAT APPELLANT WAS MATERIALLY BY THE MEMBERS’ PREJUDICED C.J., CRAWFORD, opinion delivered the CONSIDERATION OF EVIDENCE Court, GIERKE, J., in which THAT APPELLANT HAD BEEN OF- COX, S.J., GIERKE, J., joined. filed a con- FERED AND REFUSED TO SUBMIT SULLIVAN, J., curring opinion. an filed TO A POLYGRAPH EXAMINATION. part concurring in and in the result. EFFRON, J., opinion concurring in filed an
part part. and dissenting in III Appellant:
For Lieutenant Commander WHETHER THE LOWER COURT Klant, JAGC, (argued). R.C. ERRED THAT USN IN FAILING TO FIND allega- amid Loni divorced DENIED HIS lant and APPELLANT WAS abuse, as well as physical TO and mental AMENDMENT RIGHT tions of SIXTH daughters. The THE GOVERN- older COUNSEL WHERE sexual abuse J) (E already A DOC- fled home girls MENT SEIZED PRIVILEGED had PREPAR- UMENT APPELLANT WAS before the divorce. USED ING HIS ATTORNEY AND FOR *3 Kelly, subsequently married and Appеllant THAT TO INVESTIGATE DOCUMENT they August P. In daughter, had together
AND PREFER ADDITIONAL P, Kelly, now appellant, and AGAINST APPELLANT. CHARGES old, daughters, M visiting appellant’s were Charles, H, During in Lake Louisiana. and IV visit, this H observed father course of long period THE WHETHER LOWER COURT P for a in the bathroom with FAILING FIND THAT time, ostensibly ERRED IN TO H taking a shower. saw THE WERE IMPROPERLY MEMBERS H drying her father. discussed towel nude THAT THEY COULD INSTRUCTED M. seen sister Al- she had with her what THE OF J CONSIDER TESTIMONY sexually appellant abused though had never REGARDING ALLEGED FONDLING M, sexual M knew of extensive abuse THAT HAD YEARS OCCURRED 30 appellant allegedly upon had inflicted IN- AS EVIDENCE THE PRIOR OF prior leaving sisters to their her older TENT ELEMENT OF THE INDECENT in 1976 and 1977. home LIBERTIES CHARGE. subsequent M In a between conversation argument Oral was in case on heard J, visit, M about the and her sister told J Thereafter, May 2, appellant filed drinking throughout their father about still asking granting motion re- us to reconsider day, episode and about the shower previously view of issues we declined to two P, pur- H. This conversation witnessed grant now of those is- address. We review vivid, brought portedly back emotional mem- sues, which are: who had ories for been abused by appellant. age in the bathtub J contacted
V Virginia, in who started both authorities type investiga- and social criminal services THE WHETHER COURT LOWER tions. THAT ERRED IN FAILING FIND TO
APPELLANT SUFFERED ILLEGAL July appellant was relieved of On PRETRIAL IN PUNISHMENT VIOLA- Station, Air his medical duties at the Naval TION OF ARTICLE UCMJ. Oceania, temporarily assigned Na- given govern- val Base in Norfolk. He was
VI Athough computer. one ment office no office, it was not exclusive- shared WHETHER, IN APPEL- DENYING July ly to use. On was CORPUS, OF LANT’S WRIT HABEAS typing computer when hе a document on this THE COURT ITS LOWER ABUSED away He was called from the office. neither BY NU- RESOLVING DISCRETION out the document nor turned off the closed AND FACTU- MEROUS SIGNIFICANT office, he computer. When left the closed he AL BASED UPON MATTERS ONLY lock the door. ITS but REVIEW OF CONTRADICTORY AFFIDAVITS. appellant got room to the conference When (the summoned), place to which had been he
I. BACKGROUND pretrial apprehended taken to he was officer, duty Lieutenant confinement. In Loni Ruth married (a judge advocate offi- they daugh- O’Toole Tanksley. Together four Commander had cer) (born 1960); (born 1961); appellant’s office to secure his J in M went to ters: E (born (bom 1970). 1968); Appel- belongings. Commander personal and H When office, employees expectation pri-
O’Toole entered the he noticed that lie limited have vacy in computer workplace). and the was on document question displayed on the screen. See- importantly, appellant More forfeited ing that the “Regard- document entitled any expectation privacy might he have ing Charges Me,” Pending Against Now enjoyed by leaving plain document printed Commander O’Toole the document view computer on a screen in an unsecured computer. removed the disk from the 316(d). room. Finally, See Mil.R.Evid. importantly, exculpatory
most
document
question
trial,
not
was not used at
did
II.
THE
SEIZURE OF
STATEMENT
reveal
confidential information
de
about
trial, appellant objected
At
to the sei
strategy,
produced
fense
no information
document, arguing
zure of the
that he
already
had a
or leads that
were
known to
expectation
privacy
reasonable
grasp
govern
Government or
office
within
*4
investigative agencies.
computer
generally
and that
ment
the seizure
the
See
disk
545, 554,
Bursey,
illegal
429 U.S.
was
under both the Fourth Amend Weatherford
(1977);
S.Ct.
myself
because
test.
analysis,
appellant has the burden
ror
Prosecution Exhibit was admitted without
demonstrating prejudice. The document
objection.
appellate
question
of 25 trial and 138
was one
707(a)
states:
laying
founda
exhibits
After
admitted.
any
provision of
Notwithstanding
other
Exhibit
admission of
tion
Prosecution
law,
polygraph
the results of a
examina-
explained that when
Special Agent Dillard
tion,
examiner,
polygraph
of a
statement,
(appel-
he
reviewed
take,
any
or
reference to an offer to
failure
lant)
objectionable phrase
concern-
added
take,
polygraph
of a
examina-
Appel-
ing
polygraph.
to take
refusal
tion, shall not
admitted into evidence.
immediately objected
lant’s counsel
added.)
(Emphasis
concerning
polygraph.
Failure of
trial counsel
redact the
objection.
judge
trial
sustained
Several
quoted
Ex-
above
sentence from Prosecution
later,
questions
witness
the word
used
*5
prior
2
hibit
to
of
submission
finders
response
in
to
“polygraph”
the trial counsel’s
was error.
fact
judge
question.
military
alert
immedi-
ately
No
answer.
further mention
halted the
failing
object,
By
appellant
to
forfeit
during
trial
was
the remainder of the
made
plain
in
the issue
of
ed
the absence
error.
polygraph
of a
examination. The record con-
States,
461,
v.
520
See Johnson
United
U.S.
pages
testimony. This
sists of
1300
over
466-67,
117 S.Ct.
See United States v.
EVIDENCE OF INDECENT
ASSAULT
Appellant’s reliance on United
Appellant
charged
taking
was
with
inde-
(CMA 1993),
Rodriguez, 37
mis-
P in
cent
with
liberties
November
objec-
In
placed.
Rodriguez, over defense
IV)
(Specification
Charge
August
and in
tion,
special agent
who administered
IV)
(Specification Charge
while bath-
Rodriguez’s polygraph testified about the ac-
offense,
ing
gravamen
with
her.2 The
examination, concluding
results of
tual
nude,
charged,
bathing
was
Rodriguez
during
had not been truthful
exposed
genitals
lant
his
to P and vice versa.3
polygraph
his
examination.
Court
appellant,
wife
in
evidence shows that
found error
the Government’s failure to
M,
Kelly,
daughter
appellant’s
P
lay
necessary
poly-
visited
foundation
and
wife,
reliability
admitting
daughter by
graph’s
re-
his first
her Louisiana
IV,
87c(2),
provide
para.
subject
1 reads: “If
to
3. See
Part
for Courts-
hibit
refuses
infor-
Manual
Martial,
(1995
("When
ed.)
per-
a
allegations
polygraph.”
or denies
mation
offer
liberties,
son is
liberties must be
with
indecent
admitted
Prosecution Exhibit 1 was
without de-
presence
physical
taken in
objection.
fense
child,
physical
required.
of the
but
contact is not
Thus,
requisite
exposes
one who with the
intent
Appellant
guilty
Specification
was
2.
found not
private parts
years
one’s
age
to a child
under
offense.”).
guilty
found
1.
this
in
morning
1993.
in
home
On
J testified
she was born
offense,
years
appellant
age
was about 3 or
young
H
when
and her
son arrived at M’s
began
her.
J was not allowed
sit
about 7:40 a.m. to
her father. M
house
visit
during
During
in the tub
these baths.
Appellant began
for work at
left
8:00.
drink-
bath,
course of
would lather
early
ing
prepara-
in
In
morning.
wine
her, and
fingers
fondle
insert his
into her
M, Kelly
for a lunch engagement
tion
with
vagina
years, appellant’s
and anus. Over the
got
During
took shower and
dressed.
this
only
persisted
sexual abuse
J not
but
time,
playing
P
Appellant
with H’s son.
accept
intensified as he conditioned her to
then decided
take a shower
instructed
such abuse. J testified
her
that she feared
get
P
“come
the shower with me.” P
tendency
father
demonstrated
vio-
comply immediately. Again, appel-
lence.
J was between
When
9 and
“P,
get
lant said:
come
shower
with
old, appellant began raping her. This abuse
Appellant’s
joined
me now.”
wife
his re-
until
away
continued
she ran
from home
quest, telling
“go get
P to
shower with
your
gotta
finally
father.
go.”
We
P
went
The Government introduced
this
appellant,
the bathroom with
closed the
(and
prove appellant’s
J
abuse of
door, and remained therein for “somewhere
thus
de
official statement
between 30 and 45 minutes.”
nying
false),
such abuse was
also as
but
opened
the door
came
When
and P
out of
arouse,
ap
evidence of
intent to
towel,
H
the bathroom dressed
observed
to,
gratify
peal
his sexual desires when he
her father from the back and saw that he
daughter,
took a
P.
bath
his minor
Kelly
nude.
After
H dried P
theory
Trial counsel’s
of the case was that
her, P’s
parental
dressed
mother instructed
to re-
had used his
status
nude,
bathing regimen
dry
turn
the bathroom
to condition
off
J at
accept
age
sexual advances
adult father —an act which in and of itself
70s,
beginning
1960s and
and he was
could constitute indecent
liberties with a
*6
cycle
family,” specifi
with his
anеw
“second
father,
After P
drying
child.
finished
off her
cally
daughter, P.
See United
v.
States
changed.
her demeanor was
Prior to her
(CMA 1993).
Acton,
175
404(b),
Moreover,
like
Government,
Mil.R.Evid.
ar-
error. Counsel
by the
404(b)’s applica-
counterpart,
one of inclu
rule
is
gued
that Mil.R.Evid.
its federal
first
and J
two incidents
1 Edward J. Imwinkel
generally
tion
sion. See
and,
presumption
innocence”
ried,
§
“diluted
Evidence
2:31
Uncharged Misconduct
404(b)
ap-
alternatively, if Mil.R.Evid.
does
ed.).
(1999
say
rev.
It does not
wheth
at 163
too remote
ply, the
abuse was
evidence
J’s
crimes,
acts” must
wrongs, or
er the “other
Thus,
403 should
and dissimilar.
Mil.R.Evid.
charged
uncharged
conduct. Addition
be
precluded the use of
of J’s testimo-
have
evidentiary rule
not have
ally,
does
P.
ny to show
intent in
judge is
temporal yardstick by which a trial
disagree.
We
evidentiary
gauge the
value of
other
See,
crimes,
e.g.,
wrongs, or acts.
United
military judge’s
to admit
A
decision
(7th
Ruiz,
877,
Cir.
178 F.3d
880
States v.
under an
or exclude evidence is reviewed
1999)(“In
if the
are similar in
particular,
acts
abuse of
standard. United States
discretion
crime,
charged
those
even
nature to
(1999);
Schlamer,
80,
v.
52
96
United
MJ
destroy
gap in time
substantial
Miller,
63,
46
MJ
65
States
of the acts to
determination
relevance
judge’s
to admit evidence under
decision
in committing the
intent
defendant’s
for abuse of
Rule 403 is likewise reviewed
conduct.”);
Bai
charged
United Stаtes v.
Lake, 36
discretion. See United States v.
MJ
cf.
(5th Cir.),
de
ley,
cert.
111 F.3d
(CMA 1993).
317, 322
nied,
U.S.
S.Ct.
repeatedly
This Court has
concluded
(1997)(test
applied
is
L.Ed.2d
intent,
pattern
lustful
established
determining
probative value of Fed.
specifications,
used
one set of
could be
404(b)
is
depends
R.Evid.
proof
of lustful
intent
in a
factfinders
sue;
similarity of
extrinsic
specifications.
See Mil.
different
set
greater
must
when offered
offenses
Cox,
404(b);
R.Evid.
United States v.
MJ
identity
prove
when offered to
than
(CMA
1984);
74-75
United States v.
intent). The
of the matter is whether
nub
(1998);
Sweeney,
bly purpose only competent the incidents took P evidence that the bathroom with for the of bath, testimony you exposed genitals place H. allegedly derives the of If he from testimony required expose genitals that either or both her conclude from her and her occur, him, you may may testimony the you of incidents did then use consider this for the then bathing any, testimony regarding prior purpose tendency, of J incidents its if the limited specific determine the when she was a child to if that element of intent connec- specific required allegations having had the intent. taken indecent accused tion with the Further, you may Specifications not other evidence with P 1 and 2 of consider liberties kissing, fondling, attempts at Charge or french IV. oral, sex, vaginal, may for or anal as extracted from You not this evidence consider tеenager, testimony preteen purpose respect allegations of J as a or or from other to the affect- M, B, H, bearing you may the issue of the ing P or infer or as not conclude person specific with the accused’s intent connection this evidence that the accused is a bad or tendencies, allegations of liberties with P or therefore he indecent has criminal acts said to constitute indecent liber- establish committed ties, offenses may place P at all. alleged. not this evidence indecent liberties with took as You use 176
charged,
scheme,
predisposed
ability
opportunity,
because he is
to com-
lack
Morrison,
mit similar offenses.
mistake.”
177
Manns,
I
my
a week.
have
two times
wife
States v.
of discretion.” See United
I
Harris,
every
on
occasion
strip-searched
been
supra;
States v.
every
I left
occasion
Virgin Is
have had visitors
225
Government of
(3d
Archibald,
I have been
compound for
reason
F.2d
186
lands
987
clothes,
Miller,
my
Cir.1993);
Stripped off
strip-searched.
46
at 65.
MJ
clothes,
my
completely
and
searched.
all
misconduct
transported, I am
I am
usually
And
when
members,
already
as J
with J was
confined in a
transported in handcuffs and
false official state-
testified
has
police
cage, then
vehicle.
secure
judge’s
Additionally,
charge.
ments
it
been
punishment and
has
been severe
clear,
correct,
complete
cogent,
instruc-
and
day
every
for months.
constant
8
regarding the use
tions to the court members
testimony precluded any
preju-
J’s
unfair
Later, appellant continued:
might
application
arise in the
of J’s
dice that
jury,
by reaf-
I close now
Officers
specification involving P.
testimony to the
firming
truly repentant
re-
I am
and
Having
proper application
a
of the law
found
my
And
transgressions.
morseful
the indecent liberties
facts
many days my solitary con-
through
offense,
find no error with the lower
we
trial, I
2
this
the weeks of
finement and
holding
proved
court’s
the Government
person
a
than
have become
different
beyond
appellant’s guilt
doubt.
a reasonable
before____
will
Tanksley of
There
Hollis
Virginia,
Jackson v.
443 U.S.
See
I
I
be
draw a breath that
never
a second
(1979).
99 S.Ct.
Since
have been confined
solitary
I have
con-
confinement.
been
days
Appellant
pretrial
received 237
by
fined in a cell
foot
8 foot with bars
credit. See United States
confinement
bunk,
a
door.
cell has
steel
(CMA 1984).
Allen,
He
MJ
commode,
sink,
desk,
a school
give any
con-
request that the court
further
that’s
It has
floor
painted
all.
cement
being
pretrial
confinement
sideration to
my
and a
hook.
I
in this
сoat
eat
meals
illegal pretrial punishment.
my
trying to
spend
cell
I
most
time
UCMJ,
prohibits
§
recognize
wrong,
things
I have
Article
USC
done
wrong,
punishment.
I have
need not
pretrial
and what
done
and what
We
decide
positive
any right
I
action
can take to make me
to credit
whether
waived
person
future.
I have been
trial.
better
failure to raise the issue at
(CMA 1994);
doing
today.
days
for 237
Huffman,
MJ 225
Fricke, 53
also United States v.
MJ
see
later, appellant again
Several minutes
stated:
we held
As
earlier,
Additionally,
I
for the
stated
Southwick,
412, 416(2000):
past
days
totally
without
have been
[A]ppellant’s
were tantamount
trial tactics
solitary
a 6
confine-
freedom in
8 cell
case,
in this
be-
tо an affirmative waiver
cell,
I’ve been
in that
ment and
alone
they
cause
involved an election between
it’s a
solid steel walls
cell
three
*9
It is clear from
two available alternatives.
see
the front and not
bars on
able
appellant made
tactical
they
the record that
anyone
up
past
unless
or walk
walk
pretrial-punishment
the
decision to take
my
During
time I have been
cell.
this
asking
the
my family
from
issue to the members instead
from
with visits
isolated
military judge
appropriate
visit
for
relief----
my daughter one
a week and
time
case,
Accordingly,
alleged
under the facts of this
confession as
Fricke,
military
we
judge
by
hold that the
Accordingly,
err
violation Article 13. We need not resolve dispute concerning the contradictory factual EFFRON, Judge (concurring part Appellant’s affidavits in VI. Issue uncontra- part): dissenting in testimony concerning pretrial dicted pun- his agree I principal opinion the with on Issue
ishment, presented
for consideration
the
(concerning
II
the
polygraph
reference
the
arriving
appropriate
members in
at an
sen-
examination),
(concerning
Issue III
the sei-
tence,
decides matter.
zure
prepared
appellant),
of the document
The
Navy-
decision
United
confinement).
(pretrial
and Issues
and VI
V
Corps
Marine
Court of Criminal
is
(consideration
I dissent on Issue IV
of an
affirmed.
uncharged
occurring
years
incident
in the
past).
IV,
light my
In
I
views on Issue
GIERKE, Judge (concurring):
(sufficiency
also
on
I
dissent
Issue
of the
charge
evidence
pertinent
to Issue
gives
pause,
many
Issue IV
me
of the
IV).
by my
colleague,
reasons set out
learned
Judge
analysis
Effron. The
set forth in
IV,
respect
With
I would
Issue
hold that
Judge
opinion
Effron’s
that bears on the
testimony
J’s
does not meet
the second
issue of
prong
Reyn-
whether the second
prong of the test for
un-
consideration of
olds
balancing
is met
bears on
also
test
misconduct under United States
lapse
under Mil.R.Evid. 403. The time
(CMA 1989),
Reynolds,
child while her in the bathtub. SULLIVAN, military judge Judge (concurring in part admitted result): 404(b). and in under 404(b) join majority I everything except Evidence under Mil.R.Evid. offered issues, pretrial punishment since I three-part did considered under a test. Under join majority test, not part proffered its “tanta- the second mount theory consequence to an affirmative waiver” make a must fact Southwick, probable. Reynolds, supra States v. 416 more or less (2000). Nevertheless, join can the result The Government asserts the 30- pretrial punishment Appellant year-old on the issues. events J demonstrated allege purported illegal grati- does took a shower with pretrial punishment fy was done induce his his sexual desires. The Government’s the- *10 daughter years earli- ly for abused a different J appellant that had “conditioned” ory is states, pat- “a majority opinion during bath- As with the er. later sexual acts abuse by the can be used anew of lustful intent” cycle beginning was tern ing and that the sepa- for a lustful intent to infer P. factfinder with however, finding a key, is charge. The rate permitted Court has To the extent that our not estab- evidence does pattern, which the “conditioning” for admission as a basis which upon The acts in this ease. lish evidence, as we have viewed it theory are not suffi- is based Government’s to implemented planned acts or behavior condi- “plan” ciently similar to constitute In end. the context achieve desired and, therefore, are tioning not admissible 404(b) evidence, uncharged held we have that 404(b). Mil.R.Evid. under charged identical aсts “must almost to plan to be as evidence of acts” admissible was that current law—which I note under Morrison, or scheme. in effect at the time trial —evidence not v. Bran testimony to J’s be admitted similar nan, 188 (CMA 1984). Mil.R.Evid. which under courts-martial evi Such applies to certain sexual offenses. case, degree of present there In is dence, however, under Mil. not admissible is similarity charged and the between the acts non 404(b), applies to which still R.Evid. past of the from 30 in the in terms acts Mil. scope offenses outside relation- sexual age of victims their main important dif- 414. It is that we ship appellant. significant to There are R.Evid. Reynolds ferences, however, for nature of forth in terms of the the standard set tain 404(b) surrounding arising the acts and the circumstances. cases under events, 30-year-old respect J With to the evidence of a non-sexual nature. involve appellant in the testified washed her presented other evi- The Government no penetrated digitally her. There bathtub prove to the intent element of dence similarity nothing in suggest is the record to result, charge. As a indecent liberties key aspects charged offense. to prejudiced findings and the lant was appellant no nude There is evidence that was I. Issue should be dismissed under her, he that he with when bathed bathed exposed her, that he or that others himself sentence, respect I to the note With aware In were of his actions. contrast violating a was convicted of also 30-year-old allegation, which involved specifications general regulation, five lawful daughter, appellant and his the circum- statements, endeavoring official of false kept of the stances offense were investigation intimidate impede an family. P directed secret was possi- The maximum confinement witnesses. mother, family her in front of other members offenses, including all ble for home, take with in a relative’s a shower years. charge, the indecent liberties was father, father,1 respond dry her charge, the indecent liberties Without fathеr he later her who to her when asked years. Appellant received maximum was 35 earlier loved her. In further contrast to the dismissal, confinement for a sentence event, any improper there was no evidence of noteworthy months, and It forfeitures. physical contact. ad- abuse was that J’s independently on the merits for one missible theory require us The Government’s would specifications, false official statements father shower hold that when this took a specter perversion 6-year-old daughter, of crimes sexual he did so so they already physical- the members when gratify his sexual desire because he req- exposure gaged in- in the and сontact with the The lead P’s mother states that desire). (to gratify structing dry was an intent his sexual P to off her naked father uisite intent, crime, and inde- formulation of the the issue "act which in and of itself could constitute when one that it a child.” MJ at 174. is further clouded considers cent liberties with mother, appellant, disagree proposition, and not who instructed for the Govern- with this father, dry appellant, en- off her father. must ment *11 considered sentence on the other received a relatively period brief of confine- charges. Because the indecent liberties ment in the context the allowable maxi- was not the crime that involved mum, I would conclude that the error was evidence of aberrant sexual behavior in this prejudicial as to sentence. case, added to the fact that