Petition for Writ of Certiorari — Napoleon v. United States
Supreme Court brief1997
Ask Donna
What actually matters in this document.
Text
Supreme Court. U.S
FILE
97-558 SEP 29 1997
No.
OFFICc OF [He LL ceil
IN THE
Supreme Court of the United States
OCTOBER TERM, 1996
MASTER SERGEANT DORIS L. NAPOLEON,
PETITIONER
V.
UNITED STATES OF AMERICA, RESPONDENT
On Petition For a Writ of Certiorari to the United States
Court of Appeals for the Armed Forces
PETITION FOR WRIT OF CERTIORARI
KEVIN P. KOEHLER
Major, United States Air Force
Appellate Defense Counsel
Counsel of Record
DOUGLAS H. KOHRT
Colonel, United States Air Force
Chief, Appellate Defense Division
Counsel for the Petitioner
Air Force Legal Services Agency
Appellate Defense Division
112 Luke Avenue, Suite 343
Bolling AFB, DC 20332-8000
September 1997 (202)—767-—1562
QUESTIONS PRESENTED
1. Whether the military judge committed prejudicial
error when he denied the defense Motion to Suppress
appellant’s oral and written statements made to an
investigative agent.
2. Whether the military judge committed prejudicial
error by denying the defense challenge for cause of a court-
martial member who was familiar with a key prosecution
witness and certain facts surrounding the charged offense.
3. Whether the petitioner was denied effective assistance
of counsel when her trial defense counsel failed to try to
suppress part of a prosecution witness’ testimony that
pertained to a privileged communication.
¢
S
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED .......................
TABLE OF AUTHORITIES ...................... IV, V
OPINIONS BELOW ..........................
I ohare sdb 4-oo uso oencc ncn,
CONSTITUTIONAL PROVISIONS INVOLVED ......
STATEMENT OF THE CASE ...................... 2
REASONS FOR GRANTING THE PETITION |... 3,7,9
1. PETITIONER WAS DENIED DUE PROCESS
OF LAW GUARANTEED BY THE FIFTH
AMENDMENT WHEN THE MILITARY JUDGE
DENIED THE DEFENSE MOTION TO
SUPPRESS APPELLANT’S ORAL AND
WRITTEN STATEMENTS MADE TO OSI
SPECIAL AGENT KELLY.
Il. PETITIONER WAS DENIED DUE PROCESS
OF LAW GUARANTEED BY THE FIFTH
AMENDMENT WHEN THE MILITARY JUDGE
DENIED THE DEFENSE CHALLENGE FOR
CAUSE OF COLONEL PETERSON.
Ill. PETITIONER WAS DENIED EFFECTIVE
ASSISTANCE OF COUNSEL GUARANTEED
BY THE SIXTH AMENDMENT. SINCE
COUNSEL SHOULD HAVE TRIED TO
SUPPRESS THE PART OF TSGT WALTERS’
TESTIMONY THAT PERTAINED TO A
PRIVILEGED COMMUNICATION.
ee So 8 er er re eee eee 12
APPENDIX A (Opinion of the United States
Court of Appeals for the Armed Forces)............... la
APPENDIX B (Opinion of the United States
Air Force Court of Criminal Appeals) ................ 18a
TABLE OF AUTHORITIES
United States Supreme Court Cases:
Page
McMann v. Richardson, 397 U.S. 759 (1970) ...... 1]
Miranda v. Arizona, 384 U.S. 436 (1966) ......... 5
Strickland v. Washington, 466 U.S. 669 (1984) ..... 1]
Military Cases:
United States v. Barnes, 12 M.J. 956
£0 2588 +. Be ee nara 8
United States v. Deain, 5 U.S.C.M.A. 44,
ee oe > ek. 3) ree rre 8
United States v. Dicupe, 21 M.J. 440
ee RE ee ca as LeU teen eed 1]
United States v. Harris, 13 M.J. 288
i I ay cay wk Soa sein eee ha bok gl 8
United States v. Jefferson, 13 M.J. 1
SR tana ad seek eka keee haa e ead 1]
United States v. Lopez, 35 M.J. 35
Pe BES ocd aa aes eee ees ees 6
United States v. McQueen, 7 M.J. 281
(a 8 epee rr eee ee Pee err ee 8
United States v. Moreno, 20 M.J. 623
Ps AIRE ay Ga RA ona baaew kee eels 1]
United States v. Quintana, 5 M.J. 484
ee i Pa ett a.
United States v. Reynolds, 37 C.M.R. 23 (1966) .... 6
United States v. Rice, 11 U.S.C.M.A. 524, 29
oe et | rr eyes
United States v. Rivas, 3 M.J. 282 (C.M.A. 1977) ... 11
United States v. Smart, 21 M.J. 15
a Oe. See ER Pe A S
United States v. White, 36 M.J. 284
Pere POE... Adie vate ce eee 7
Federal Statutes:
PS ec RE Ss on tse bake ce
oer Shan BORN OE 5 ob cb bs bh ee eek eee
ee Sh Ie PM 6b 6 Gs oe 8 ee ee ee 2
Constitutional Provisions:
U.S. Constitution Amendment V ................ |
U.S. Constitution Amendment VI................ |
Military Rules of Evidence:
Ee NP <5 oh aa hs ea a eo kee 10, 11
Rules for Courts-Martial
R.C.M. 912(f)(1)(N) . 02. cece cece cee cceueeees 7,8
The petitioner, Master Sergeant Doris L. Napoleon
respectfully prays that a writ of certiorari issue to review the
order and judgment of the United States Court of Appeals for
the Armed Forces entered in her case on July 10, 1997.
OPINIONS BELOW
The order and judgment of the United States Court of
Appeals for the Armed Forces, reported at 46 M.J. 279
(1997), is located at Appendix A. The opinion of the United
States Air Force Court of Criminal Appeals, reported at 44
M.J. 537 (A.F.Ct.Crim.App. 1996), is located at Appendix B.
JURISDICTION
The judgment of the United States Court of Appeals for
the Armed Forces was entered on July 10, 1997. The
jurisdiction of this Court is invoked under 28 U.S.C.
§ 1259(3) (West Supp. 1996) and 10 U.S.C. § 867(a)(3) (West
Supp. 1996).
CONSTITUTIONAL PROVISIONS INVOLVED
The Due Process Clause of the Fifth Amendment to the
Constitution of the United States provides in relevant part:
No person shall . . . be compelled in any criminal
case to be a witness against himself nor be deprived
of life, liberty, or property, without due process of
law...
The Sixth Amendment of the Constitution of the United
States provides in relevant part:
In all criminal prosecutions, the accused shall enjoy
the right . . . to have the Assistance of Counsel for
his defense.
tJ
STATEMENT OF THE CASE
On March 12, 1994, contrary to her pleas, petitioner was
convicted of premeditated murder, in violation of Article 118,
Uniform Code of Military Justice, 10 USC § 918. The
adjudged and approved sentence provides for a dishonorable
discharge, confinement for life, total forfeitures, and reduction
to the lowest enlisted grade.
On April 26, 1996, the Air Force Court of Criminal
Appeals affirmed the findings and sentence. 44 M.J. 537
(A.F.Ct.Crim.App. 1996) (Appendix B).
On September 25, 1996, the Court of Appeals for the
Armed Forces granted review on the following issues of law:
WHETHER THE MiLITARY JUDGE ERRED
WHEN HE DENIED THE DEFENSE MOTION
TO SUPPRESS APPELLANT'S ORAL AND
WRITTEN STATEMENTS MADE TO OSI
SPECIAL AGENT KELLY.
WHETHER THE MILITARY JUDGE ERRED BY
DENYING THE DEFENSE CHALLENGE FOR
CAUSE OF COLONEL PETERSON.
Ill
WHETHER APPELLANT WAS DENIED
EFFECTIVE ASSISTANCE OF COUNSEL,
SINCE COUNSEL SHOULD HAVE TRIED TO
SUPPRESS THE PART OF TSGT WALTERS’
TESTIMONY THAT PERTAINED TO A
PRIVILEGED COMMUNICATION.
On July 10, 1997, the Court of Appeals for the Armed
Forces issued its decision, holding that the issue of whether
the military judge erred by denying the petitioner’s motion to
suppress her statements was moot since the statements were
not entered into evidence; the military judge did not err in
failing to grant the defense challenge for cause of Colonel
Peterson, either on the grounds of actual or implied bias; and
petitioner did not carry her burden of rebutting the
presumption that her trial counsel were competent by showing
that a motion to suppress the testimony of TSgt Walters would
have been meritorious.
REASONS FOR GRANTING THE WRIT
I. PETITIONER WAS DENIED DUE PROCESS
OF LAW GUARANTEED BY THE FIFTH
AMENDMENT WHEN THE MILITARY JUDGE
DENIED THE DEFENSE MOTION TO
SUPPRESS APPELLANT’S ORAL AND
WRITTEN STATEMENTS MADE TO OS!
SPECIAL AGENT KELLY.
At trial, defense counsel submitted a motion to suppress
the oral statements made to SSgt Simonis, a military security
policeman, at the NCO Club and the oral and written
Statements made to Special Agent Kelly. The written motion
and the addendum are Appellate Exhibits II and III; the
government's responses are Appellate Exhibits IV and V; the
only documentary evidence, in addition to the attachments to
the motions and responses, is the stipulation of fact, found at
Appellate Exhibit VI; the only testimony relevant to this issue
is that of Special Agents Kelly, Stewart, and Aguilar found at
R. 51-77.
'The other testimonial evidence presented for the purposes of this pretrial
motion pertained to the statement that appellant made to SSgt Simonis at
the NCO Club. That statement is not the subject of this assigned error.
Amazingly, neither party offered the written statement as
an exhibit or as an attachment to their pleadings. Since the
government ultimately did not offer the statement into
evidence, it is nowhere in the record of the actual trial. The
Statement was submitted under separate motion to the Air
Force Court of Criminal Appeals.
The facts and circumstances surrounding this interview
were not in dispute, as evidenced by the stipulation of fact.
(App. Ex. VI.)
In the military judge’s findings, he stated that at
approximately 0833 on 31 July 1993, SA Kelly, assisted by
SA Thompson, began to interview appellant at the OSI
headquarters at Vandenberg AFB. At that time, appellant was
in custody and was a suspect. At the outset of the interview,
SA Kelly advised appellant that she was suspected of the
stabbing of Harris even though SA Kelly knew that Harris
was dead. He did not advise appellant that she was a suspect
in the death of Harris. Subsequent to the otherwise proper
advice, appellant waived her rights to remain silent and to the
assistance of counsel, and made both oral and written
statements. (R.80—-81.)
The military judge, in his findings, did not address the
testimony of Special Agents Stewart and Aguilar, and
Attachments 6—8 of the defense motion, all of which was
crucial evidence. SA Stewart testified that he was concerned
about this rights advisement, since SA Kelly had intentionally
left out any reference to murder or the fact that Harris had
died. He contacted Major Claypool, a judge advocate on base,
and they decided to give appellant a cleansing warning, and to
readvise her that she was suspected of murder. SA Stewart,
along with SA Aguilar, did in fact approach appellant later
that morning, and readvised her of her rights, stating that the
earlier statement that she made may not be used against her in
court. They used a statement prepared by Major Claypool.
(Defense motion, Atch 8; R. 70-75.) SA Aguilar, who
accompanied SA Stewart, took the prior written statement and
sealed it in an envelope and initialed it. He did this in the
presence of appellant before they initiated the second
interview. (R. 76-77.)
In this second interview, after being advised that Harris
had died, appellant elected not to make a statement.
The military judge, in his conclusions of law, stated that
the advice that appellant was suspected of the stabbing of
Harris was sufficient to orient her as to the nature, transaction,
or incident of which she was suspected, and complied with
both Article 31 and pertinent case law, particularly United
States v. Rice, 11 U.S.C.M.A. 524, 29 C.M.R. 340 (1960), and
United States v. Quintana, 5 M.J. 484 (C.M.A. 1978).
A close analysis of these two cases shows that they are
quite different from the case sub judice. In Rice, an OSI agent
advised the accused of his Article 31 rights, stating that he
was being investigated of a criminal offense, and that he
“most certainly” would not have made a statement, if he had
been so advised. The Court held that the “purpose of
informing a suspect or accused of the nature of the accusation
is to orient him to the transaction or incident in which he is
allegedly involved. It is not necessary to spell out the details
of his connection with the matter under inquiry with technical
nicety.” Rice, 342 (emphasis added).
Appellant asserts that the difference between a stabbing
and a murder is more than a mere “detail” or “technical
nicety.” It is also worth noting that Rice was decided before
Miranda? and its progeny.
*Miranda v. Arizona, 384 U.S. 436 (1966)
In Quintana, the accused was advised of his Article 31
rights, and that he was suspected of larceny of the ship’s store
funds. The investigators did not advise him that he was also
suspected of the wrongful appropriation of money from the
same fund during an earlier period. The Court held that this
was an adequate warning, since it did orient the accused to the
nature of the offense. The Court also noted that the
investigator was not aware of the degree of the accused’s
involvement until he made the statement in question, thus
there was no bad faith. Quintana, 486-487.
Unlike Rice and Quintana, the case sub judice involves
bad faith on the part of the investigator. SA Kelly testified that
he did not want to use the term “murder” or “premeditated
murder”, even though appellant was in fact suspected of the
murder of Harris. He contacted Major Blair, the Chief of
Military Justice, who advised him that it was fine to advise
appellant that she was suspected in the stabbing of Harris,
even though SA Kelly and Major Blair knew that Harris had
already been pronounced dead. (R. 58-59.) SA Kelly made a
“conscious decision” not to advise appellant of the crime of
which she was suspected. (R. 65.) He and SA Thompson even
had “death” written on the AFOSI Form 73 (Interview
Record), but it was crossed out and replaced with the word
“stabbing.” (R. 66-67; App. Ex. IV (Atch.))
A criminal suspect must be oriented as to the suspected
crime, so as to allow time to intelligently weigh the
consequences of responding to investigator’s inquiries.
Military members are entitled to be notified of the nature of
the offense before there can be a valid waiver. United States v.
Reynolds, 37 C.M.R. 23 (1966); United States v. Lopez, 35
M.J. 35 (C.M.A. 1992). It is clear that appellant did not
understand the nature and importance of the crime of murder
when she made her incriminating oral and written statements.
This is evident in the fact that when she was advised that she
was suspected of murder, she chose to remain silent. Also,
even SA Stewart and Major Claypool felt that this rights
advisement was improper, and readvised appellant of her
rights, complete with a “cleansing warning”.
The statements were clearly obtained in violation of
appellant’s Article 31 rights, and the military judge erred by
not suppressing them.
Il. PETITIONER WAS DENIED DUE PROCESS
OF LAW GUARANTEED BY THE FIFTH
AMENDMENT WHEN THE MILITARY JUDGE
DENIED THE DEFENSE CHALLENGE FOR
CAUSE OF COLONEL PETERSON.
The defense challenged five members for cause. Three of
these challenges were granted, with trial counsel’s
concurrence. On two of these challenges, Colonel Peterson
and MSgt Kelsey, the trial counsel objected, and the military
judge subsequently denied them. The defense then
peremptorily challenged Colonel Peterson, but properly
preserved the issue for appeal.
During group voir dire, Colonel Peterson stated that he
knew Special Agent (SA) Stewart, but said that there was
nothing about their acquaintance that would disqualify him.
Colonel Peterson then stated that SA Stewart was “very
credible” because of the job he has. The military judge then
asked several questions in an attempt to rehabilitate him. (R.
124)
A challenge for cause should be granted if the member
“should not sit as a member in the interest of having the court-
martial free from substantial doubt as to legality, fairness, and
impartiality.” R.C.M. 912(f)(1)(N).
A trial judge should be liberal in granting challenges for
cause, but reversal of a trial judge’s rulings is appropriate only
if there was “abuse of discretion.” United States v. White, 36
M.J. 284 (C.M.A. 1993). The test for evaluating the propriety
of the trial judge’s ruling denying a challenge for cause is
“whether he [the prospective member] is mentally free to
render an impartial finding and sentence based on the law and
the evidence.” United States v. McQueen, 7 M.J. 281 (C.M.A.
1979).
Impaneling this court member over defense objection
would cause reasonable people to call into serious question
the fairness of appellant’s court martial. United States v.
Harris, 13 M.J. 288, 291 (C.M.A. 1982). Because the
appearance of evil with regard to court-martial proceedings
must be avoided as much as the evil itself, the challenge for
cause against Colonel Peterson should have been granted “in
the interest of having the trial and subsequent proceedings
free from substantial doubt as to legality, fairness, and
impartiality.” R.C.M. 912(f)(1)(N); United States v. Smart, 21
M.J. 15, 20 (C.M.A. 1985). Indeed, as the Air Force Court of
Military Review has held, “It is important that justice be
dispensed in such a manner as to foster the image of fairness
and integrity.” United States v. Barnes, 12 M.J. 956
(A.F.C.M.R. 1982).
The appellant was entitled to a trial before a panel free
from any influence outside the courtroom. United States v.
Deain, 5 U.S.C.M.A. 44, 17 C.M.R. 44 (1954); Barnes 12
M.J. at 958. The military judge denied this right to the
appellant by denying the defense’s challenge for cause.
Colonel Peterson was clearly influenced by the news media,
staff meetings, and his positive impression of SA Stewart.
In the case sub judice, Colonel Peterson clearly
possessed enough outside information to require that he be
challenged for cause. His statements that he could be
impartial were inadequate to overcome his prior knowledge of
the case.
II]. PETITIONER WAS DENIED EFFECTIVE
ASSISTANCE OF COUNSEL GUARANTEED
BY THE SIXTH AMENDMENT, SINCE
COUNSEL SHOULD HAVE TRIED TO
SUPPRESS THE PART OF TSGT WALTERS’
TESTIMONY THAT PERTAINED TO A
PRIVILEGED COMMUNICATION.
Information relevant to this issue is found in two
affidavits submitted by motion to the Air Force Court of
Criminal Appeals. The first affidavit, dated 6 April 1995, is
written by appellant (hereinafter referred to as “appellant’s
affidavit”). The second affidavit, dated 5 April 1995, is
written by TSgt Walters (hereinafter referred to as “Walters’
affidavit”).
TSgt Walters testified for the government. He said that
he visited appellant at the confinement facility on 7 August
1993, shortly after the stabbing incident. He testified as
follows:
Q: And what did Sergeant Napoleon say to you. . . ?
A: Basically, when I approached Sergeant Napoleon
that day, I came to see her at about one o’clock or
so and we, basically, met each other and we sat
down and we talked. And the first thing that we got
into, she said that she was fine and, you know, she
was awake and out of shock. For the most part, she
was letting us know that she was okay because that
was my reason for being there. And at that point,
you know, we said, you know, she realized what had
happened and everything that had been done. And
she definitely had told me at that time that she
wasn’t angry or enraged or anything when the
incident occurred. It just kind of went on and on
from there.
10
Q: Okay, did she say, “I know what I| did was
wrong’?
A: Yes, sir.
(R. 485-486.)
The defense did not object to this testimony.
TSgt Walters is a lay minister, and appellant felt
confident that anything she said to him would be confidential.
(Appellant’s affidavit; Walters’ affidavit.) Both trial defense
counsel were aware of these circumstances. (Appellant’s
affidavit.)
Military Rule of Evidence 503 gives a person the
privilege to refuse to disclose and to prevent another from
disclosing a confidential communication by the person to a
clergyman or to a clergyman’s assistant, if such
communication is made either as a formal act of religion or as
matter of conscience.
Appellant’s communication with TSgt Walters is covered
by M.R.E. 503. TSgt Walters felt compelled to come and visit
appellant “as one of his fellow sisters in trouble and need.”
Appellant stated, “it was during this visit with TSgt Walters
that | was compelled to lay my burdens before him .. .
[b]ecause TSgt Walters was a layminister (sic), I felt very
confident in expressing and releasing my innermost feelings,
since I knew that all communications with ministers and
chaplains were considered privileged communications.”
(Appellant’s affidavit.)
TSgt Walters has stated that he is a lay minister, and that,
“fa]s a servant of the Lord Jesus Christ I followed my
teaching to visit those in captivity.” (Walters’ affidavit.) On
one occasion, TSgt Walters and his wife prayed with
appellant. (Appellant’s affidavit; Walters’ affidavit.) Although
TSgt Walters says “[m]y visits were as an acquaintance
1]
through our common organization and as a co-member of the
Hospital Top Four,” the focus is on appellant’s perception of
the purpose of the communication, not TSgt Walters’
perception, since appellant’s intent is controlling. M.R.E. 503;
United States v. Moreno, 20 M.J. 623, 627 (A.C.M.R. 19835).
The Sixth Amendment of the United States Constitution
guarantees an accused the right to “effective assistance of
counsel.” McMann v. Richardson, 397 U.S. 759, 771 n. 14
(1970). The same right is afforded to servicemen in trials by
court-martial under Article 27(b), UCMJ. United States v.
Dicupe, 21 M.J. 440 (C.M.A. 1986); United States v. Rivas, 3
M.J. 282 (C.M.A. 1977). An accused has a right to a
reasonably competent counsel who exercises that competence
in his client’s behalf throughout the tria!. United States v.
Jefferson, 13 M.J. 1 (C.M.A. 1982).
This Honorable Court has set out a two-part standard to
determine whether an individual has been denied the effective
assistance of counsel. Strickland v. Washington, 466 U.S. 669
(1984). An appellant must identify acts or omissions by his or
her attorney, and then bear the burden of persuading the court
that, based on the facts as counsel knew them and eliminating
the distortion of hindsight, those acts or omissions “. . . were
outside the range of professional competent assistance.” /d., at
689. This Honorable Court cautioned that appellate courts
must understand that “counsel’s function, as elaborated in
prevailing professional norms, is to make the adversarial
testing process work in the particular case.” /d. An appellant
must also show “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” A “reasonable probability” was
defined as a “probability sufficient to undermine confidence in
the outcome.” /d., at 694.
In the case sub judice, appellant has met both parts of the
Standard set out in Strickland, supra. Trial defense counsel
12
were aware that TSgt Walker’s testimony involved a
confidential, privileged communication. Despite this
knowledge, there was no objection, and there is no indication
that they even questioned whether the testimony was
admissible.
The prejudice is apparent. TSgt Walters’ testimony was
the only direct evidence of premeditation. Without this
testimony, there would have probably been a finding of
unpremeditated murder or voluntary manslaughter. However,
because of this testimony, the defense did very little to
advocate such findings (although they did request the
instruction on these two lesser included offenses).
Based on these reasons, appellant was denied effective
assistance of counsel.
Conclusion
The military judge committed prejudicial error in
denying the defense motion to suppress her oral and written
statements made to OSI Special Agent Kelly and in denying
the defense challenge for cause, thus violating her
constitutional right to due process under the Fifth
Amendment. Petitioner was denied effective assistance of
counsel guaranteed by the sixth amendment since trial defense
counsel failed to try to suppress TSgt Walters’ testimony that
pertained to a privileged communication.
September 1997
13
Respectfully submitted,
KEVIN P. KOEHLER,
Major, United States Air Force
Appellate Defense Counsel
Counsel for the Petitioner
DOUGLAS H. KOHRT,
Colonel, United States Air Force
Appellate Defense Counsel
Counsel of Record
Air Force Legal Services Agency
Appellate Defense Division
112 Luke Avenue, Suite 343
Bolling AFB, DC 20332-8000
(202) 767-1562
la
APPENDIX A
UNITED STATES, Appellee,
v,
Doris L. NAPOLEON, Master Sergeant
U.S. Air Force, Appellant.
No. 96—0919
Crim.App. No. 31332
U.S. COURT OF APPEALS FOR
THE ARMED FORCES.
Argued Feb. 5, 1997
Decided July i0, 1997
Accused was convicted by general court-martial,
William C. Thompson, Jr. J., of premeditated murder. The
United States Air Force Court of Criminal Appeals affirmed,
44 M.J. 537. Review was granted. The United States Court of
Appeals for the Armed Forces, Gierke, J., held that: (1) issue
of whether military judge erred by denying accused’s motion
to suppress her statements to special agent was moot; (2)
record supported denial of challenge for cause to panel
member who knew prosecution witness; and (3) clergy
privilege did not apply to accused’s statements to lay minister.
Affirmed.
Sullivan and Crawford, JJ., issued opinions concurring in
part and concurring in result.
1. Military Justice Ox» 1419
Issue of whether military judge erred by denying
accused’s motion to suppress her statements was moot;
2a
statements were not offered into evidence, and, although
accused asserted that military judge’s ruling affected tactical
and strategic decisions throughout trial, she did not identify
what decisions were affected or what she would have done
differently.
2. Military Justice Om 1419
Question whether issue is moot is question of law that is
reviewed de novo.
3. Military Justice Ow 1419
Issue is “moot” if resolving it would not result in
material alteration of situation for accused or for government.
See publication Words and Phrases for other
judicial constructions and definitions.
4. Military Justice Om 884.1
Both actual bias and implied bias are included in rule
which provides that court member “shall be excused” when
that member should not sit in interest of having court-martial
free from substantial doubt as to legality, fairness, and
impartiality. R.C.M. 912(f)(1)(N).
5. Military Justice O- 884.1
On issues of whether panel member should be removed
for cause based on actual bias, prior professional relationships
and innocuous prior knowledge of the facts of case are not per
se disqualifying. R.C.M. 912(f)(1)(N), (f)(3).
6. Military Justice O- 884.1
Test for “actual bias” on part of panel member, for
purposes of challenge for cause, is whether any bias is such
eT
3a
that it will not yield to evidence presented and judge’s
instructions. R.C.M. 912(f)(1)(N).
See publication Words and Phrases for other
judicial constructions and definitions.
7. Military Justice O-> 1420
Military judge’s ruling on challenge for cause is
reviewed for abuse of discretion. R.C.M. 912(f)(1)(N).
8. Military Justice O- 891, 1420
While military judges must grant challenges for cause
liberally, military judge’s determination not to grant challenge
will not be overturned except for clear abuse of discretion in
applying liberal-grant mandate. R.C.M. 912(f)(1)(N).
9. Military Justice O- 884.1
Question of actual bias on part of panel member is
essentially one of credibility and therefore largely one of
demeanor. R.C.M. 912(f)(1)(N).
10. Military Justice Ow 1419
Military judge enjoys great deference in ruling on
challenge for cause because he has observed demeanor of
participants in voir dire and challenge process. R.C.M.
912(f)(1)(N).
11. Military Justice Or 1419
Issues of implied bias on part of panel member are
reviewed under somewhat less deferential standard than are
issues of actual bias; while actual bias is reviewed through
eyes of military judge or court members, implied bias is
4a
reviewed under objective standard, viewed through eyes of
public. R.C.M. 912(f)(1)(N).
12. Military Justice O= 884.1
In determining whether panel member should be
removed for cause on ground of implied bias, focus is on
perception or appearance of fairness of military justice
system. R.C.M. 912(f)(1)(N).
13. Military Justice O- 884.1
Denial of challenge for cause to panel member on
ground of actual bias was not abuse of discretion, even though
challenged member stated that he had heard about case, that
he knew prosecution witness, whom he considered to be “very
credible,” and that he would “automatically” believe that
witness when weighing his testimony against other witnesses;
panel member’s responses during voir dire unequivocally
demonstrated his willingness to judge case based on evidence
presented in open court in accordance with military judge’s
instructions. R.C.M. 912(f)(1)(N).
14. Military Justice O- 884.1
Denial of challenge for cause to panel member on
ground of implied bias was not abuse of discretion, even
though member stated that he had heard about case, that he
knew prosecution witness, whom he considered to be “very
credible,” and that he would “automatically” believe that
witness when weighing his testimony against other witnesses;
member’s prior knowledge of case was limited and general,
his association with witness was not social, but purely
professional, witness’s credibility at trial was not contested,
and his testimony before members was limited to his
description of search of crime scene and search, with her
consent, of accused’s home. R.C.M. 912(f)(1)(N).
TT ee
Sa
-
15. Military Justice O- 1126.1
Because lay minister at base chapel was not “clergyman”
and was not acting as “clergyman’s assistant” when he visited
with accused while she was in pretrial confinement, and
because accused did not reasonably believe that lay minister
was acting as clergyman, their conversation was not protected
by clergy privilege; term “lay minister” was ambiguous and
could cover broad range of persons, including musicians,
ushers, and various attendants to person presiding at religious
service, and circumstances of visit suggested that lay minister
came to confinement facility as concerned friend, not as
clergyman. Military Rules of Evid., Rule 503.
See publication Words and Phrases for other
judicial constructions and definitions.
16. Military Justice Ow 1242
Counsel are presumed to be competent. U.S.C.A.
Const.Amend. 6.
17. Military Justice O- 1242
When claim of ineffective assistance of counsel is
premised on counsel’s failure to make motion to suppress
evidence, appellant must show that there is reasonable
probability that such motion would have been meritorious.
U.S.C.A. Const.Amend. 6.
18. Military Justice Ow 1126.1
Accused failed to show that her statements to lay
minister were “formal act of religion,” or were made “as a
matter of conscience,” and thus, clergy privilege did not
protect such statements; circumstances of lay minister’s visit
suggested that accused was seeking emotional support and
6a
consolation, not guidance and forgiveness. Military Rules of
Evid., Rule 503.
See publication Words and Phrases for other
judicial constructions and definitions.
For Appellant: Major Kevin P. Koehler (argued); Colonel
Jay L. Cohen and Colonel David W. Madsen (on brief);
Lieutenant Colonel Kim L. Sheffield.
For Appellee: Major LeEllen Coacher (argued); Colonel
Theodore J. Fink and Lieutenant Colonel Michael J. Breslin
(on brief); Major Jane M.E. Peterson.
Opinion of the Court
GIERKE, Judge:
A general court-martial composed of officer and enlisted
members sitting at Vandenberg Air Force Base, California,
convicted appellant, contrary to her pleas, of premeditated
murder, in violation of Article 118, Uniform Code of Military
Justice, 10 USC § 918. The adjudged and approved sentence
provides for a dishonorable discharge, confinement for life,
total forfeitures, and reduction to the lowest enlisted grade.
The Court of Criminal Appeals affirmed the findings and
sentence. 44 MJ 537 (1996)
We granted review of the following issues:
I
WHETHER THE MILITARY JUDGE ERRED
WHEN HE DENIED THE DEFENSE MOTION
TO SUPPRESS APPELLANT’S ORAL AND
WRITTEN STATEMENTS MADE TO OSI
SPECIAL AGENT KELLY.
II
WHETHER THE MILITARY JUDGE ERRED BY
DENYING THE DEFENSE CHALLENGE FOR
CAUSE OF COLONEL PETERSON.
7a
Ii]
WHETHER APPELLANT WAS DENIED
EFFECTIVE ASSISTANCE OF COUNSEL,
SINCE COUNSEL SHOULD HAVE TRIED TO
SUPPRESS THE PART OF TSGT WALTERS’
TESTIMONY THAT PERTAINED TO A
PRIVILEGED COMMUNICATION.
We hold that Issue I is moot because the statements in
question were not offered as evidence. We resolve Issues II
and III against appellant.
Issue 1: Motion to Suppress Statements
The victim, Renee Harris, was stabbed to death in the
parking lot of the Vandenberg Air Force Base
Noncommissioned Officers’ Club on the morning of July 31,
1993. Several hours after the stabbing, appellant was
questioned by Special Agent (SA) Kelly, a member of the Air
Force Office of Special Investigations (OSI). The court below
found that SA Kelly “told the appellant only that she was
suspected of ‘stabbing’ the victim, deliberately avoiding use
of any word that would disclose the victim’s death, although
he knew the victim had died.” The court below further found
that “appellant did not know the victim had died, and Kelly
did not want her to know.” 44 MJ at 540.
[1] At trial the military judge denied appellant’s motion
to suppress her statements to SA Kelly. For reasons not
apparent from the record, the prosecution did not introduce
these statements into evidence. That being the case, the court
below held that the issue was moot. Appellant argues the issue
is not moot, however, “since the military judge’s pretrial
ruling definitely affected trial defense counsel’s tactical and
strategic decisions throughout the trial.” The court below
rejected this argument, as do we.
8a
[2, 3] The question whether an issue is moot is a
question of law that we review de novo. See United States v.
Shover, 45 MJ 119, 122 (1996). An issue is moot if resolving
it “would not result in ‘a material alteration of the situation
for the accused or for the Government.’” United States v.
Clay, 10 MJ 269 (CMA 1981).
Although appellant asserts that the military judge’s
ruling affected “tactical and strategic decisions throughout the
trial,” she has not identified what decisions were affected or
what she would have done differently. Accordingly, like the
court below, “we are in no position to speculate about other
paths the defense might have taken with a different ruling.” 44
MJ at 540. We therefore hold that the issue is moot. See
United States v. Sullivan, 42 MJ 360, 364 (1995) (expectation
of privacy in wireless telephone call moot); United States v.
Loving, 41 MJ 213, 258 (1994) (alleged misconduct of judge
moot), aff'd on other grounds, — U.S. —, 116 S.Ct. 1737,
135 L.Ed.2d 36 (1996).
Issue II: Challenge for Cause
During general voir dire, the senior member of the panel,
Colonel (Col) Peterson, disclosed that he knew OSI Special
Agent Stewart, a prosecution witness. In response to
questioning by the military judge, Col Peterson said that he
considered SA Stewart “very credible because of the job he
has.” He responded in the affirmative when asked if he would
“be able to consider his testimony in accordance with the...
{military judge’s] instructions . . . regarding the credibility of
the witnesses who may testify.” Col Peterson answered in the
negative when asked if he would “automatically” believe SA
Stewart when weighing Stewart’s testimony against other
witnesses.
During individual voir dire, Col Peterson responded to
defense counsel’s questions by saying that he did not socialize
a
9a
with SA Stewart but knew him professionally. Col Peterson
said that through his working with SA Stewart, he “found him
to be an individual that if | were a commander, I would want
in my organization.” Col Peterson said that “there would be
no question” that he would be able to weigh any
contradictions in SA Stewart’s testimony.
Col Peterson also disclosed that he had heard about the
case. He explained:
We were in [a] staff meeting and got a briefing as to
some degree that there was a problem at the club
and there was an individual that was killed and—or
that died. I’m not—I can’t even remember how it
was presented. And then there were some articles in
the paper early on. And that’s about all I recall of
the case.
In response to defense counsel’s questions, Col Peterson
described what he learned in the newspaper as follows:
What I can remember was that there was an
altercation at the NCO Club. An individual was
stabbed. It was a female that had worked at the
commissary and it occurred at the parking lot.
The—what was it—there was a lot of blood in the
parking lot. It was a stabbing. And that’s about it. It
ended up in the hospital Emergency Room.
Finally, the military judge asked Col Peterson what he
would rely on if he heard “evidence in the court which does
not jive with” the newspaper accounts. Col Peterson
responded, “The court.” The military judge then asked,
“Would you have any difficulty doing that?” Col Peterson
responded, “No. None.”
The defense challenged Col Peterson for cause, arguing
that Col Peterson was “too familiar with this case to sit
impartially,’
>]
and that he considered SA Stewart “very
10a
credible.” The military judge denied the challenge. Defense
counsel then exercised a peremptory challenge against Col
Peterson and preserved the issue for appellate review by
announcing that he would have exercised his peremptory
challenge against another member if the challenge for cause
had been granted. See RCM 912(f)(4), Manual for Courts-
Martial, United States (1995 ed.).
SA Stewart testified before the members on the merits.
He described his search of appellant’s home, conducted with
her consent. During that search a set of knives in a knife block
was seized because one of the knives was missing from the
set and the knife found at the crime scene appeared to be part
of the set. His credibility was not attacked during either cross-
examination or argument.
Appellant argues that Col Peterson should have been
removed for cause for both actual bias as well as implied bias.
Final Brief at 11-12. Appellate government counsel argue that
Col Peterson’s official contacts with SA Stewart and his
limited prior knowledge of the facts of the case were
insufficient to constitute actual bias. Answer to Final Brief at
12-14. The Government does not address appellant’s
argument that Col Peterson should have been removed for
implied bias.
[4] RCM 912(f)(1)(N) provides that a court member
“shall be excused” when that member “[s]hould not sit . . . in
the interest of having the court-martial free from substantial
doubt as to legality, fairness, and impartiality.” This rule
includes both actual bias and implied bias. United States v.
Minyard, 46 MJ 229, 231 (1997), citing United States v.
Daulton, 45 MJ 212, 217 (1996), and United States v. Harris,
13 MJ 288, 292 (CMA 1982). RCM 912(f)(3) provides: “The
burden of establishing that grounds for a challenge exist is
upon the party making the challenge.”
lla
[5, 6] On issues of actual bias, prior professional
relationships and “innocuous prior knowledge of the facts of a
case” are not per se disqualifying. See United States v. Lake,
36 MJ 317, 324 (CMA 1993); see also United States v.
Hamilton, 41 MJ 22, 25 (CMA 1994). The test for actual bias
is whether any bias “is such that it will not yield to the
evidence presented and the judge’s instructions.” United
States v. Reynolds, 23 MJ 292, 294 (CMA 1987).
[7-10] We review a military judge’s ruling on a
challenge for cause for abuse of discretion. While military
judges must grant challenges for cause liberally, “we will not
overturn the military judge’s determination not to grant a
challenge except for a clear abuse of discretion in applying
the liberal-grant mandate.” United States v. White, 36 MJ 284,
287 (CMA 1993). The question of actual bias “is essentially
one of credibility and therefore largely one of demeanor.”
Reynolds, 23 MJ at 294, citing Patton v. Yount, 467 U.S. 1025,
1038, 104 S.Ct. 2885, 2891, 81 L.Ed.2d 847 (1984). The
military judge enjoys “great deference because we recognize
that he has observed the demeanor of the participants in the
voir dire and challenge process.” White, 36 MJ at 287; see
also Daulton, 45 MJ at 217.
[11, 12] On the other hand, issues of implied bias are
reviewed under a somewhat less deferential standard. While
actual bias is reviewed through the eyes of the military judge
or the court members, implied bias is reviewed under an
objective standard, viewed through the eyes of the public.
Daulton, supra. The focus “is on the perception or appearance
of fairness of the military justice system.” United States v.
Dale, 42 MJ 384, 386 (1995).
[13] With respect to actual bias, we hold that the
military judge did not abuse his discretion. Col Peterson’s
responses during voir dire unequivocally demonstrated his
willingness to judge the case based on the evidence presented
12a
in Open court in accordance with the military judge’s
instructions.
[14] Although we consider the issue of implied bias a
closer call, we agree with the court below that “a reasonable,
disinterested layman would not see unfairness in Col
Peterson’s continued presence.” 44 MJ at 541. Col Peterson’s
prior knowledge of the case was limited and general. His
association with SA Stewart was not social, but purely
professional. SA Stewart’s credibility at trial was not
contested. His testimony before the members was limited to
his description of the search of the crime scene and the search,
with her consent, of appellant’s home. Under these
circumstances, we hold that the military judge did not abuse
his discretion on the question of implied bias. See generally
United States v. Allred, 867 F.2d 856, 870 (Sth Cir.1989) (no
implied bias where juror had social contact with criminal
investigator); United States v. Bradshaw, 787 F.2d 1385, 1390
(10th Cir.1986) (no implied bias where juror had business
dealings with government witness).
Issue III; Privileged Communications
[15] Appellant asserts that her trial defense counsel was
ineffective because he did not object to the testimony of
Technical Sergeant (TSgt) Walters. Appellant argues that
TSgt Walters was a “lay minister” at the base chapel, that her
conversation with him was protected by the clergy privilege
under Mil.R.Evid. 503, Manual, supra, and that TSgt Walters’
testimony would have been excluded if her defense counsel
had objected.
At trial TSgt Walters testified that, on August 7, 1993, he
had a conversation with appellant while “visiting her as a
friend.” He testified that the stabbing of Renee Harris was
never mentioned during the conversation but that he
understood that appellant was talking about the stabbing. He
13a
testified: “For the most part, she was letting us know that she
was okay because that was my reason for being there.”
During the conversation, appellant told TSgt Walters that “she
realized what had happened and everything that had been
done”; that “she wasn’t angry or enraged or anything when
the incident occurred”; and that she knew what she did was
wrong. Appellant argues that she was prejudiced by TSgt
Walters’ testimony because it was the only direct evidence of
premeditation and without it, she probably would have been
convicted only of unpremeditated murder or voluntary
manslaughter. Final Brief at 16.
In an affidavit prepared 13 months after her trial and 18
months after the allegedly privileged conversation, appellant
states that TSgt Walters was a “layminister [sic] at one of the
little chapel’s [sic] on Vandenberg AFB, C[A], and that he
was very involved with those activities.” Appellant asserts
that, while she was in pretrial confinement, TSgt Walters
visited her and told her that “all of a sudden he felt compelled
to come and visit [her], as one of his fellow sisters in trouble
and need.” During this visit, she “was compelled to lay . . .
[her] burdens before him.” Finally, she asserts that she “felt
very confident in expressing and releasing [her] innermost
feelings, since . . . [she] knew that all communications with
ministers and chaplains were considered privileged
communication.” Finally, appellant asserts that her counsel
knew that TSgt Walters was a lay minister.
TSgt Walters also prepared an affidavit at about the same
time as appellant’s. In his affidavit he states:
My visits [with appellant] were as an acquaintance
through our common organization and as a co-
member of the Hospital Top Four. I am also a lay
minister at the Base Chapel (#2) and on one
occasion my wife and I prayed with MSgt Napoleon
between August and September 1993. My visits
14a
with MSgt Napoleon were to see if her children
were taken care of and if she needed our help for
anything. Periodically I would drop a gallon of
drinking water by for her due to poor water
conditions in the facility. As a servant of the Lord
Jesus Christ I followed my teaching to visit those in
captivity.
[16, 17] Counsel are presumed to be competent. To
prevail on a claim of ineffective assistance of counsel, an
appellant must rebut the presumption of competence. United
States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 2046, 80
L.Ed.2d 657 (1984); United States v. Scott, 24 MJ 186, 188
(CMA 1987). When a claim of ineffective assistance of
counsel is premised on counsel’s failure to make a motion to
suppress evidence, and appellant must show that there is a
reasonable probability that such a motion would have been
meritorious. See Loving, 41 MJ at 244, 246; see also Boag v.
Raines, 769 F.2d 1341, 1344 (9th Cir. 1985) (“Failure to raise
a meritless argument does not constitute ineffective
assistance.”). Thus we turn to the merits of appellant’s claim
that her conversation with TSgt Walters was privileged.
Mil.R.Evid. 503(a) protects as privileged “a confidential
communication by the person to a clergyman or to a
clergyman’s assistant, if such communication is made either
as a formal act of religion or as a matter of conscience.”
Mil.R.Evid. 503(b)(1) defines “clergyman” as “a minister,
priest, rabbi, chaplain, or other similar functionary of a
religious organization, or an individual reasonably believed to
be so by the person consulting the clergyman.” Mil.R.Evid.
503 is similar to proposed Fed.R.Evid. 506, which was not
adopted. The Advisory Committee Note on the proposed
federal rule indicates that “clergyman” was intended to mean
a person “regularly engaged in activities conforming at least
in a general way with those of a Catholic priest, Jewish rabbi,
15a
or minister of an established Protestant denomination.” See 2
S. Saltzburg & M. Martin, Federal Rules of Evidence Manual
601-02 (Sth ed.1990); S. Saltzburg, L. Schinasi, & D.
Schlueter, Military Rules of Evidence Manual 557 (3d
ed.1991).
The question whether a conversation is privileged is a
mixed question of law and fact. United States v. Coleman, 26
MJ 407, 409 (CMA 1988). Because the issue was not raised at
trial, we have no factfinding by the military judge. The court
below took the affidavits of appellant and TSgt Walters at face
value and found that they fell short of showing a privileged
communication.
We agree with the court below that appellant has not met
her burden of showing that TSgt Walters, a lay minister, was a
“clergyman” or “clergyman’s assistant.” The term “lay”
means “not of the clergy.” Webster’s Third New International
Dictionary 1281 (1986). Consequently, the term “lay
minister” is ambiguous and could cover a broad range of
persons, including musicians, ushers, and various attendants
to the person presiding at a religious service. On their face,
then, the affidavits submitted by appellant and TSgt Walters
do not establish that TSgt Walters was a “clergyman” or was
acting as a “clergyman’s assistant.” See United States v.
Brooks, 2 MJ 102, 105 (CMA 1977) (essential clement of
privileged communication is that it was made to a person
subject to the privilege); United States v. Garries, 19 MJ 845,
859-60 (AFCMR 1985) (communication to church deacon
not privileged because deacon not qualified to perform
substantive pastoral duties), aff’d on other grounds, 22 MJ
288 (CMA 1986).
We also hold that appellant has not met her burden of
showing that she “reasonably believed” TSgt Walters was a
clergyman. The affidavits contain no information about TSgt
Walters’ religious qualifications or his duties as a “lay
loa
minister.” The circumstances of the visit suggest that TSgt
Walters came to the confinement facility as a concerned
friend, not as a clergyman.
[18] Finally, we hold that appellant has failed to show
that her admissions to TSgt Walters were a “formal act of
religion” or were made “as a matter of conscience.” The
Supreme Court has explained that the clergy privilege
“recognizes the human need to disclose to a spiritual
counselor, in total and absolute confidence, what are believed
to be flawed acts or thoughts and to receive priestly
consolation and guidance in return.” Trammel v. United
States, 445 U.S. 40, 51, 100 S.Ct. 906, 912, 63 L.Ed.2d 186
(1980). A communication is not privileged, even if made to a
clergyman, if it is made for emotional support and consolation
rather than as a formal act of religion or as a matter of
conscience. See Coleman, 26 MJ at 407 (disclosures to father-
in-law who was a minister not privileged). The circumstances
of TSgt Walters’ visit, as described in the affidavits, suggest
that appellant was seeking emotional support and consolation,
not guidance and forgiveness.
Because appellant has not shown that a motion to
suppress the testimony of TSgt Walters would have been
meritorious, she has not carried her burden of rebutting the
presumption that her counsel were competent.
Decision
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
Chief Judge COX and Judge EFFRON concur.
SULLIVAN, Judge (concurring in part and in the result):
The defense loss of the suppression motion obviously
affected its tactics in this case and, therefore, I would not
17a
consider it moot. I would not extend this Court’s holding in
United States v. Gee, 39 MJ 311 (CMA 1994) (failure to call
character witnesses barred review of denial of defense motion
to prevent Government from questioning said witnesses about
accused’s prior uncharged misconduct). I would hold that
there was no Article 31, Uniform Code of Military Justice, 10
USC § 831, violation in this case. That article requires only
that an accused or a suspect be advised of “stabbing” the
victim. These warnings were adequate. See United States v.
Rice, 11 USCMA 524, 526, 29 CMR 340, 342 (1960); United
States v. Davis, 8 USCMA 196, 198, 24 CMR 6, 8 (1957).
CRAWFORD, Judge (concurring in part and in the
result):
I would hold that the military judge did not “clear[ly] . . .
abuse his discretion” in denying the challenge for cause
against Colonel Peterson. United States v. White, 36 MJ 284,
287 (CMA 1993) (emphasis added). But implied bias should
be reserved for “rare circumstances” when the potential juror
has an emotional involvement which would adversely affect
impartiality or was a victim of a similar crime. See Hunley v.
Godinez, 975 F.2d 316, 320 (7th Cir.1992); United States v.
Minyard, 46 MJ 229, 232 (1997) (Crawford, J.. dissenting);
see also Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71
L.Ed.2d 78 (1982).
18a
APPENDIX B
UNITED STATES
V.
Master Sergeant Doris L. NAPOLEON, FR222-36—4556,
United States Air Force
ACM 31332
U.S. Air Force Court of Criminal Appeals.
Sentence Adjudged 12 March 1994.
Decided 26 April 1996.
Accused was convicted by general court-martial
convened at Vandenberg Air Force Base, California, William
C. Thompson, Jr., J., of premeditated murder. The United
States Air Force Court of Criminal Appeals, Starr, J., held
that: (1) any error claimed by accused in military judge’s
failure to suppress accused’s inculpatory statements to special
agent made several hours after victim’s stabbing was not
preserved; (2) military judge did not abuse his discretion in
denying defense challenge for cause of member who stated
during general voir dire that he knew potential witness and
considered him “very credible”; and (3) accused was not
denied effective assistance of counsel because her trial
defense counsel did not object to testimony that accused
maintained was inadmissible under privilege of confidential
communications to clergyman.
Affirmed.
19a
1. Military Justice Om 1415
Any error claimed by accused in military judge’s failure
to suppress accused’s inculpatory statements to special agent
made several hours after victim’s stabbing was not preserved,
where prosecution did not offer accused’s pretrial statements
to officer into evidence during its case, and defense rested
without presenting evidence. UCMJ, Art. 31(b), 10 U.S.C.A.
§ 831(b).
2. Military Justice O- 884.1
Military judge did not abuse his discretion in denying
defense challenge for cause of member who stated during
general voir dire that he knew potential witness and
considered him “very credible,” where member
conscientiously answered questions asked of him and clearly
understood his duty to sit as impartial trier of fact.
3. Military Justice O- 884.1
Accused is entitled to members who will keep open
mind, decide case on evidence presented, and follow judge’s
instructions on law.
4. Military Justice Om 1420
Denial of challenge for cause will be reversed only for
clear abuse of discretion.
5. Military Justice Ow 884.1
Member is not per se disqualified from serving because
he professionally knows particular witness, possesses degree
of professional respect for particular witness, or has read or
heard about facts in case; instead military judge must
determine whether actual or implied bias exists when member
20a
has personal belief or attitude that will not yield to evidence
and judge’s instructions.
6. Military Justice = 884.1
Implied bias exists to support challenge for cause when
member’s continued presence would cast substantial doubt on
legality, fairness, and impartiality of trial. R.C.M.
912(f)(1)(N).
7. Military Justice O-» 884.1
Focus of implied bias rule on challenge for cause of
member is on perception or appearance of fairness of military
justice system. R.C.M. 912(f)(1)(N).
8. Military Justice O= 884.1
Inquiry on implied bias of member focuses on whether
reasonable, disinterested layman would think proceedings
would smack of unfairness with challenged member's
continued presence.
9. Military Justice ©» 1242
Accused was not denied effective assistance of counsel
based on her trial defense counsel’s failure to object to
testimony she maintains was inadmissible under privilege of
confidential communications to clergyman; defense objection
to lay minister’s testimony would probably not have been
sustained, since she was not confiding in him as formal act of
religion or as matter of conscience, and, even if his testimony
had been excluded, findings would have been same, since
other evidence of accused’s premeditated design to kill was
compelling. U.S.C.A. Const.Amend.6.
a
2la
10. Military Justice Om 1242 me
Trial defense counsel enjoys strong presumption that he
or she has rendered effective assistance and made all
Significant decisions in exercise of reasonable professional
judgment.
11. Military Justice Om 1242
To prevail on claim of ineffective assistance of counsel,
accused has heavy burden in overcoming presumption that
trial defense counsel has rendered effective assistance of
counsel; allegation must clearly explain exact manner in
which trial defense counsel was deficient so that government
and appellate court may sensibly evaluate it.
12. Military Justice Om 1242
To establish claim of ineffective assistance of counsel,
accused must show that trial defense counsel was deficient by
Showing that he or she made errors so serious that counsel
was not providing assistance guaranteed by Sixth
Amendment. U.S.C.A. Const.Amend. 6.
13. Military Justice Oe 1242
To establish ineffective assistance of counsel, accused
must show that counsel’s deficient performance prejudiced
defense, which requires Showing that trial defense counsel’s
errors were so serious they deprived accused of “fair trial,”
that is, trial whose result is reliable. U.S.C.A. Const. Amend. 6.
See publication Words and Phrases for other
judicial constructions and definitions.
14. Military Justice Ow 1242
Test of counsel’s performance on ineffective assistance
22a
of counsel claim is not that he or she lost or that some options
were not pursued or could have been pursued differently,
without regard to degree of utility or potential hazard of each.
U.S.C.A. Const.Amend. 6.
15. Military Justice Oo» 1242
Benchmark for judging any claim of ineffectiveness is
whether counsel’s performance so undermined proper
functioning of adversarial process that trial cannot be relied
on as having produced just result. U.S.C.A. Const. Amend. 6.
16. Military Justice Ow 1418
If strong presumption of trial defense counsel’s
effectiveness has not been overcome by accused’s
submissions and record, issue may be disposed of without
further intruding into attorney-client relationship by requiring
response from trial defense counsel. U.S.C.A. Const.Amend. 6.
17. Military Justice O- 1126.1
Privilege regarding communications with clergyman
recognizes human need to disclose to spiritual counselor, in
total and absolute confidence, what are believed to be flawed
acts or thoughts and to receive priestly consolation and
guidance in return.
18. Military Justice O- 1126.1
Privilege regarding communications with clergyman
reflects accommodation between public’s right to evidence
and individual’s need to confide in spiritual counselor.
19. Military Justice Ow 1126.1
For “privilege of confidential communications to
23a
clergyman” to apply, communication must be made either as
formal act of religion or as matter of conscience, it must be
made to clergyman in his capacity as spiritual advisor, and
communication must be intended to be confidential.
See publication Words and Phrases for other
judicial constructions and definitions.
Sentence adjudged 12 March 1994 by GCM convened at
Vandenberg Air Force Base, California. Military Judge:
William C. Thompson, Jr.
Appellate Counsel for Appellant: Colonel Jay L. Cohen,
Captain Eric N. Eklund, and Captain J. Knight Champion, III.
Appellate Counsel for the United States: Colonel Jeffery
T. Infelise and Major Jane M.E. Peterson.
Before DIXON, SCHREIER, and STARR, Appellate
Military Judges.
OPINION OF THE COURT
STARR, Judge:
Arlyta Renee Harris was stabbed to death with a kitchen
knife in the parking lot of the Vandenberg Air Force Base
Noncommissioned Officers’ (NCO) Club during the very
early morning hours of 31 July 1993. There were no
eyewitnesses, but suspicion centered almost immediately
upon the appellant, and she was ultimately convicted of
premeditated murder. The convening authority approved the
adjudged sentence of dishonorable discharge, confinement for
life, forfeiture of all pay and allowances, and reduction to
E-—1. The appellant presents three issues for our consideration:
that the military judge erred by failing to suppress her
Statements to an Air Force Office of Special Investigations
(AFOSI) agent; that the military judge erred by failing to
24a
grant a defense challenge for cause; and that her two trial
defense counsel were ineffective by failing to object to
testimony that revealed privileged communications between
the appellant and a “lay minister.” We reject these
contentions, and we affirm the findings and sentence.
[1] The appellant first claims the military judge erred by
failing to suppress her inculpatory statements, made several
hours after the stabbing, to Special Agent Kelly of the AFOSI.
At the initial Article 39(a), UCMJ, 10 U.S.C. § 839(a),
session, the appellant moved to suppress the statements,
because when advising her of her rights under Article 31(b),
UCMJ, Kelly told the appellant only that she was suspected of
“stabbing” the victim, deliberately avoiding use of any word
that would disclose the victim’s death, although he knew the
victim had died. At the time of the interview, the appellant did
not know the victim had died, and Kelly did not want her to
know.
The military judge ruled against the appellant,
concluding the information Kelly provided the appellant “was
sufficient to orient her as to the nature, transaction, or incident
of which she was suspected.” Notwithstanding the military
judge’s ruling, the prosecution did not offer the appellant’s
pretrial statements to Kelly into evidence during its case.
After the conclusion of the prosecution’s case, the defense
rested without presenting evidence. According to the
appellant, however, the issue is not moot, “since the military
judge’s pretrial ruling definitely affected trial defense
counsel’s tactical and strategic decisions throughout the trial.”
This claim of error warrants only brief comment. First,
the appellant does not tell us what trial decisions were
affected by the ruling, and we are in no position to speculate
about other paths the defense might have taken with a
different ruling. We observe, however, that had the judge
ruled the statements inadmissible on the theory advanced by
a
25a
the defense, and had the appellant taken the witness stand and
testified any differently than her pretrial Statements, the
prosecution could still have used them for impeachment
purposes. Mil.R.Evid. 304(b)(1). Second, the appellant offers
no authority for the proposition that error may be preserved
when an objected-to inculpatory statement by an accused is
not presented to the factfinder, and we have found no such
authority. There is, however, authority to the contrary in
analogous situations. See United States v. Gee, 39 M.J. 311
(C.M.A.1994) (in limine ruling signaling probable admission
of prosecution evidence, never admitted, held insufficient to
preserve issue); United States v. Saul, 26 M.J. 568, 572-73
(A.F.C.M.R.1988), pet. denied, 27 M.J. 434 (C.M.A.1988)
(judge’s refusal to preliminarily rule on evidence of
uncharged misconducted, never admitted, held insufficient to
preserve issue); United States v. Rusinskas, 35 M.J. 808, 809
(N.M.C.M.R.1992) (in limine denial of defense motion to
suppress prior conviction as impeachment, never admitted,
held insufficient to preserve issue). We therefore reject the
appellant’s first claim of error.
[2] The appellant next claims the military judge erred by
denying the defense challenge for cause of Colonel (Col)
Peterson. During the general voir dire, the military judge
named the potential witnesses, one of whom was the local
AFOSI detachment commander. Col Peterson said he knew
the witness, and in response to the military judge’s questions,
he said the witness was “very credible because of the job he
has.” Col Peterson then said he would follow the judge’s
instructions on witness credibility and would not
automatically believe the witness’ testimony without
weighing it against other evidence. During individual voir
dire, in response to questions by the defense counsel, Col
Peterson said he knew the witness because of some cases he
had worked through the AFOSI office. He also explained his
26a
earlier comment. Of the witness he said: I’ve worked with
him and found him to be an individual that if I were a
commander, I would want him in my organization.” He then
reiterated that if there were contradictions between the
witness’ testimony and other evidence, he would weigh the
evidence before making a credibility determination.
The defense counsel then asked Col Peterson what he
had heard about the case. Col Peterson answered that soon
after the incident, he had been in a staff meeting where it was
announced there had been a problem at the club and someone
had been killed. He added that he could not remember how
the information was presented. He also said that some articles
had appeared in the paper soon after the incident. When asked
what he remembered from the articles, he said:
What I can remember was that there was an
altercation at the NCO club. An individual was
stabbed. It was a female that had worked at the
commissary and it occurred at the parking lot. The
— what was it — there was a lot of blood in the
parking lot. It was a stabbing. And that’s about it. It
ended up in the hospital emergency room.
Col Peterson added he had not drawn any conclusions based on
the articles, and he would rely on evidence he saw and heard in
court, rather than what he had read, in deciding the case.
The defense counsel challenged Col Peterson for cause,
which the military judge denied, although he granted three
other defense causal challenges based upon personal
knowledge of the facts of the case. The defense then removed
Col Peterson with its peremptory challenge, but preserved the
issue for review. R.C.M. 912(f)(4); United States v. Jobson,
31 M.J. 117, 120 (C.M.A.1990).
[3, 4] An accused is entitled to members who will keep
an open mind, decide the case on the evidence presented, and
27a
follow the judge’s instructions on the law. While the side that
asserts a challenge for cause has the burden of proving the
grounds for it, the military judge should view challenges for
cause with a liberal eye. However, we will reverse the denial
of a challenge for cause only for a clear abuse of discretion.
United States v. Barrow, 42 M.J. 655, 660 (A.F.Ct. Crim.App.
1995), pet. granted, 43 M.J. 418 (1995).
[5-7] A member is not per se disqualified from serving
because he professionally knows a particular witness,
possesses a degree of professional respect for a particular
witness, or has read or heard about facts in the case. United
States v. Lake, 36 M.J. 317, 324 (C.M.A.1993); United States
v. Arvie, 7 M.J. 768, 771-72 (A.C.M.R.1979). Instead, the
military judge must determine whether an actual or implied
bias exists which disqualifies the member. An actual bias
exists when the member has a personal belief or attitude that
will not yield to the evidence and the judge’s instructions. An
implied bias exists when the member’s continued presence
would cast substantial doubt on the legality, fairness, and
impartiality of the trial. R.C.M. 912(f)(1)(N); Barrow, 42 M.J.
at 660. The focus of the implied bias rule is on the perception
or appearance of fairness of the military justice system.
United States v. Dale, 42 M.J. 384, 386 (1995).
[8] Based on the member’s unchallenged and
unequivocal statements that he could impartially decide the
case, we analyze this issue as one of implied, rather than
actual, bias. See United States v. Moyar, 24 M.J. 635, 638
(A.C.M.R.1987). Therefore, the inquiry focuses on whether a
reasonable, disinterested layman would think the proceedings
would smack of unfairness with the challenged member’s
continued presence. Barrow, 42 M.J. at 661. Although another
military judge faced with the same facts might have granted
the challenge for cause, we believe that a reasonable,
disinterested layman would not see unfairness in Co]
28a
Peterson’s continued presence. Instead, we believe a layman
would see a member who conscientiously answered the
questions asked of him and who clearly understood his duty to
sit aS an impartial trier of fact. We therefore conclude the
military judge did not abuse his discretion in denying the
challenge.
[9] Finally, the appellant claims she was denied the
effective assistance of counsel because her trial defense
counsel did not object to testimony she maintains was
inadmissible under the privilege of confidential
communications to a clergyman. In an affidavit prepared 13
months after her trial and approximately a year and a half
after the events she recounts, the appellant describes a
conversation she had with TSgt Walters, who visited her
several times during her pretrial confinement. She states:
TSgt Walters and I belonged to a lot of the same
committee’s [sic] and were members of the Hospital
Top Four group. I also knew he was a lay minister
at one of the little chapel’s [sic] on Vandenberg
AFB, CA, and that he was very involved with those
activities. During his first visit with me, he informed
me that while he was out mowing his lawn that day,
when all of a sudden he felt compelled to come and
visit me, as one of his fellow sisters in trouble and
need. It was during this visit with TSgt Walters that
I was compelled to lay my burden before him. I told
him that I could not understand why the seemly
[sic] normal acts of that night (30 July 93), could go
from a calm, no anger atmosphere to a
confrontation that led to a person’s death. On
another occasion [sic] when TSgt Walters paid me a
visit, he was accompanied by his wife, at the
completion of that visit, TSgt Walters conducted a
prayer session for me. Because TSgt Walters was a
29a
lay minister, I flet very confident in expressing and
releasing my innermost feelings, since I knew that
all communications with ministers and chaplains
were considered privileged communications. Both
[trial defense counsel] knew that TSgt Walters was a
lay minister.
TSgt Walters also submitted an affidavit, likewise executed 13
months after trial and approximately a year and a half after
the conversations he remembers, in which he states:
I visited MSgt Doris Napoleon during her stay at
the detention facility at Vandenberg AFB, CA in the
summer and fall of 1993. My visits were through
our common organization and as a co-member of
the Hospital Top Four. I am also a lay minister at
the Base Chapel (#2) and on one occasion [sic] my
wife and I prayed with MSgt Napoleon between
August and September 1993. My visits with MSgt
Napoleon were to see if her children were taken
care of and if she needed our help for anything.
Periodically I would drop a gallon of drinking water
by for her due to poor water conditions in the
facility. As a servant of the Lord Jesus Christ I
followed my teaching to visit those in captivity. At
my first visit she informed me she was visited by a
Chaplain, Col Chan (Hospital Commander), and her
Supervisor (Col Barnicott) among others. The First
Sergeant told me she could have visitors on
weekends. She seemed very encouraged by their
support and pleased to see me too.
The two trial defense counsel have not submitted affidavits in
response to that of the appellant. See United States v. Boone,
42 M.J. 308, 313 (1995) (trial defense counsel may choose to
respond to an allegation of ineffectiveness, but cannot be
compelled to unless a court of competent jurisdiction finds
30a
that the allegation and record contain evidence which, if
unrebutted, would overcome the presumption of competence).
Walters did not provide evidence at the Article 32,
UCMgJ, investigation, but at trial he was called as a witness by
the prosecution. The trial counsel directed Walters’ attention
to 7 August 1993 (about a week after the murder and the
appellant’s placement in pretrial confinement) and asked if
Walters remembered a conversation with the appellant that
day. Walters said yes, that on that day he was “visiting her as
a friend.” When asked what the appellant had said to him,
Walters answered:
Basically when I approached Sergeant Napoleon
that day, I came to see her at about one o’clock or
so and we, basically, met each other and we sat
down and we talked. And the first thing that we got
into, she said that she was fine and, you know, she
was awake and out of shock. For the most part, she
was letting us know that she was okay because that
was my main reason for being there. At that point,
you know, we said you know, she realized what had
happened and everything that had been done. And
she definitely told me at that time that she wasn’t
angry or enraged or anything when the incident
occurred. It just kind of went on from there.
Walters’ direct examination ended with his testimony that the
appellant said she knew what she did was wrong. During
cross-examination, the trial defense counsel focused on the
appellant appearing to be “coming out of shock” during the
conversation. Counsel got Walters to concede the appellant
did not look like her “normal self’ and appeared distraught
during the conversation. Cross-examination concluded with
Walters’ testimony that he believed the appellant’s realization
of wrongdoing was her conclusion at the time of their
conversation, rather than her feeling at the time of the
3la
incident. During redirect, Walters again stated that during
their conversation the appellant seemed to be in a state of
Shock. Trial counsel, apparently sensing the point of
diminishing returns, ended the examination; and the defense
counsel had no recross-examination.
According to the appellant, the performance of her trial
defense counsel in not asserting the Mil.R.Evid. 503 privilege
against Walters’ testimony fails the test of Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). The appellant maintains that prejudice is obvious
because Walter’s testimony was the only “direct evidence of
premeditation,” without which “there probably would have
been a finding of unpremeditated murder or voluntary
manslaughter.”
[10-13] A trial defense counsel enjoys a strong
presumption that he or she has rendered effective assistance
and made all significant decisions in the exercise of
reasonable professional judgment. United States v. Kibler, 43
M.J. 725, 730 (Army Ct.Crim.App. 1995). To prevail on a
claim of ineffective assistance of counsel, an appellant has a
heavy burden in overcoming that presumption. An allegation
of ineffectiveness must clearly explain the exact manner in
which the trial defense counsel was deficient so that the
government and the appellate court may sensibly evaluate it.
United States v. Walters, 42 M.J. 760, 762 (Army
Ct.Crim.App.1995). Then the appellant must present enough
credible evidence, which, when considered together with the
evidence contained in the entire appellate record, establishes
two elements. First, the appellant must show the trial defense
counsel was deficient. This requires showing that the trial
defense counsel made errors so serious that counsel was not
providing the assistance guaranteed by the Sixth Amendment.
Second, the appellant must show that the deficient
performance prejudiced the defense. This requires showing
32a
that the trial defense counsel’s errors were so serious they
deprived the appellant of a fair trial, a trial whose result is
reliable. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.
[14-16] The test of counsel’s performance is not that he
or she lost; and it is not that some options were not pursued or
could have been pursued differently, without regard to the
degree of utility or the potential hazard of each. United States
v. Ingham 42 M.J. 218 (1995). The benchmark for judging
any claim of ineffectiveness is whether counsel’s performance
so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a
just result. Kibler, 43 M.J. at 731. Finally, if we conclude the
strong presumption of the trial defense counsel’s effectiveness
has not been overcome by the appellant’s submissions and the
record before us, we may dispose of the issue without further
intruding into the attorney-client relationship by requiring a
response from the trial defense counsel. United States v.
Lewis, 42 M.J. 1, 6 (1995).
We have no difficulty resolving this issue against the
appellant without requiring any response from the trial
defense counsel. First, the appellant has not carried her
burden of showing her counsel were deficient. Based on the
affidavits and on Walters’ testimony, we are unpersuaded that
a defense objection to his testimony would have been
sustained. Second, there was no prejudice to the appellant.
Even if Walters’ testimony had been excluded, we are
convinced the findings would have been the same.
[17-19] The privilege regarding communications with a
clergyman “recognizes the human need to disclose to a
spiritual counselor, in total and absolute confidence, what are
believed to be flawed acts or thoughts and to receive priestly
consolation and guidance in return.” Trammel v. United
States, 445 U.S. 40, 51, 100 S.Ct. 906, 913, 63 L.Ed.2d 186
(1980). It reflects an accommodation between the public’s
33a
right to evidence and the individual’s need to confide in a
spiritual counselor. Its foundation contains three elements: (1)
the communication must be made either as a formal act of
religion or as a matter of conscience; (2) it must be made to a
clergyman in his capacity as a spiritual advisor; and (3) the
communication must be intended to be confidential. United
States v. Moreno, 20 M.J. 623, 626 (A.C.M.R.1985). In the
second element, “clergyman” is defined as a minister, priest,
rabbi, chaplain, or other similar functionary of a religious
organization, or an individual reasonably believed to be so by
the person consulting the clergyman. Mil.R.Evid. 503(b)(1).
It is clear from both affidavits the 7 August 1993
conversation and the prayer session were different encounters.
We are not dealing with the praver session, which came later
and which, according to the appellant, was also attended by
Walters’ wife. In resolving the issue, we analyze the actual
statements that Walters attributed to the appellant in his
testimony, not what the appellant recalls in her affidavit as her
statement to him. While the appellant’s affidavit is useful in
determining the circumstances surrounding the 7 August 1993
conversation, it is the precise statements by the appellant that
Walters related in his testimony that count. These are: “And
she definitely told me at that time she wasn’t angry or enraged
or anything when the incident occurred,” and “I know what I
did was wrong.” Based on the affidavits and on Walters’
testimony, we are not persuaded the appellant has shown
either the first or second elements required to invoke the
privilege.
The appellant fails to show that during the 7 August 1993
conversion she was confiding in Walters as a formal act of
religion or as a matter of conscience. According to Walters’
trial testimony, “she was letting us know she was okay
because that was my reason for being there.” Nothing in his
testimony or in his affidavit gives the slightest indication that
34a
Walters perceived the appellant’s purpose as seeking spiritual
counseling from him. It is clear to us that she was not
confiding in Walters as a formal act of religion or as a matter
of conscience. While she may have been seeking emotional
comfort and perhaps sympathy in speaking with Walters about
her feelings of not being angry or enraged, this does not
amount to confiding in him as an act of formal religion or as a
matter of conscience. Her purpose in making the comments
was thus outside the privilege. United States v. Coleman, 26
M.J. 407 (C.M.A.1988) (accused’s admissions to father-in-
law minister that he molested daughter not made as formal act
of religion or as matter of conscience, but instead for
emotional support).
The appellant has also failed to establish the second
element. We are not persuaded the appellant made the
comments to Walters in his capacity as a spiritual advisor.
Whatever Walters’ credentials and responsibilities as a “lay
minister” entailed, it is clear he was not operating in a
Spiritual advisor capacity during the 7 August 1993
conversation. Both his affidavit and his testimony
demonstrate he was vising the appellant as a friend and as a
fellow member of the Hospital Top Four group. During his
testimony, Walters said nothing about his affiliation with
Chapel #2 or anything relating to his lay ministry. Surely, if
he was authorized by his church to administer spiritual
counseling, and if he thought he had engaged in spiritual
counseling with the appellant, it would have occurred to him
that a privilege might exist affecting his ability to testify as a
prosecution witness. We see absolutely nothing in his
testimony to even hint of such a concern. Further, all we are
told in the affidavits is that Walters was a lay minister. We are
told nothing about what that meant to him in the context of
spiritual counseling, and we decline to speculate about how he
saw his role. See United States v. Garries, 19 M.J. 845,
a
Pops eed
35a
859-60 (A.F.C.M.R.1985), aff’d, 22 M.J. 288 (C.M.A.1986)
(church deacon, not qualified to perform substantive pastoral
duties, considered conversation with accused nonprivileged).
The appellant has a heavy burden here, but she provides
very little in the way of substantive evidence to support her
position. See United States v. McCastle, 43 M.J. 438, 440
(1996) (insufficient factual basis to support claim). It is
tempting to agree with appellate government counsel that the
theory advanced by the appellant is merely an afterthought. In
any event, we are convinced that had the appellant offered the
trial court the same foundation she now advances regarding
her conversation with Walters, any defense objection under
Mil.R.Evid. 503 would have suffered rejection, and correctly
so. Therefore, the appellant has not sustained her burden of
showing her trial defense counsel were deficient. See United
States v. Loving, 41 M.J. 213, 245-46 (1994) (no deficiency in
defense counsel performance for not objecting to uncharged
misconduct where appellate court reviews testimony and
determines that an objection would not have been
meritorious).
Even if we are in error concerning the availability of a
defense objection to Walters’ testimony, the appellant’s claim
also fails under the second prong of the Strickland test, further
amplified in United States v. Tharpe, 38 M.J. 8, 10-11
(C.M.A.1993). If ineffective assistance of counsel is found to
exist, is there a reasonable probability that, absent the error,
the fact finder would have had a reasonable doubt respecting
guilt? In other words, had the trial defense counsel prevented
Walters’ testimony under Mil.R.Evid. 503, is there a
reasonable probability the appellant would have been
acquitted or convicted of a lesser offense? The unequivocal
answer is no. There is ample evidence, much of it far more
compelling than Walters’ brief testimony, that the appellant
possessed a premeditated design to kill the victim.
36a
The appellant and the victim were not friends. They had
become competitors for the same man, TSgt Crawford, the
NCO Club night manager; and the appellant was losing. The
appellant and Crawford had been romantically involved for
over a year, when about a month before the murder, Crawford
had broken it off and and had begun a similar relationship
with the victim. The evidence showed the appellant devoted a
great deal of time that month to attempting to change
Crawford’s mind, without success.
On the night of the murder, the appellant went to the
NCO Club, where she located Crawford and the victim. The
appellant stayed until closing; and then followed the victim to
Crawford’s dormitory room, knowing Crawford was still
occupied with his duties at the club. The appellant then
managed to get the victim into the appellant’s car and drove
the victim back to a remote part of the club parking lot. There
the appellant stabbed the victim in the chest with such force
that she produced a wound six inches deep with a knife whose
blade was less than five inches long. With just the first blow
(of a total of four or five), the knife penetrated the victim’s
heart, diaphragm, and liver.
Although the appellant did not habitually carry a knife,
she had two knives with her that night. One was found in her
purse when she was searched. The knife the appellant used to
kill the victim, found nearby with the appellant’s fingerprint
on it, matched a set of knives from a butcher block in the
appellant’s home, one of which was missing when authorities
searched her home the next day.
Additional evidence of a premeditated design to kill the
victim is found in the appellant’s preparation of a story to
account for her presence with the victim. A security
policeman who arrived on the scene almost immediately after
the stabbing, even before the arrival of medical emergency
personnel, described the appellant as being “very calm, very
37a
cool, didn’t seem to be upset” as she told him she had been
driving near the shoppette when she saw the victim, who
asked for a ride back to the club. According to the appellant,
when they arrived at the club, she opened the door, the dome
light came on, and she noticed for the first time the victim was
bleeding. She helped the victim to the door of the club, which
explained the large quantity of blood on her skirt and legs.
Clearly, these fabricated statements just after she stabbed the
victim were far more damning to the appellant’s case on the
issue of premeditation than the statements Walters attributed
to her a week later.
The evidence of the appellant’s premeditated design to
kill was compelling. We have no doubt that absent Walters’
testimony, the court’s finding would be exactly what it was—
guilty of premeditated murder. There is simply no reasonable
possibility the appellant would have been acquitted or
convicted of a lesser offense without Walters’ testimony. We
therefore also reject the appellant’s third assignment of error.
The findings and the sentence are correct in law and fact
and are
AFFIRMED.
Chief Judge DIXON and Senior Judge SCHREIER
concur.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.