Petition for Writ of Certiorari — Thompson v. United States

Supreme Court, U.K

FILED

971504 MAR 1 219%

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

SENIOR AIRMAN MATTHEW C. THOMPSON,

PETITIONER

Vv.

UNITED STATES OF AMERICA, RESPONDENT

Petition For a Writ of Certiorari to the United States

Court of Appeals for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

W. Craig Mullen

Captain, United States Air Force

Appellate Defense Counsel

Counsel of Record

Douglas H. Kohrt

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel for Petitioner

Air Force Legal Services Agency

Appellate Defense Division

112 Luke Avenue, Suite 343

Bolling AFB, DC 20332-8000

(202) 767-1562

February 1998

A etree rat

AMS

QUFSTION PRESENTED

Whether Conviction of the Petitioner for sodomy for a

private consensual act between the Petitioner and his wife is a

violation of his Constitutional right to privacy.

ill

TABLE OF CONTENTS

Page

IEE SOMITE TIED 5 ooo cc valve webeeccsevdcens i

PE AP UTED 5 occ ce cece cvcccvcscucers iv

a Go o's so G0 8S 's.5 40:40 50s oe eee kk l

ik dines 60 ha Rain bodie Oecd eka e 6h l

CONSTITUTIONAL PROVISION INVOLVED ......... l

eS SO: SOME GOs 6605 oo voce cess esceenes 2

REASON FOR GRANTING THE WRIT ............... 4

CONVICTION OF THE PETITIONER FOR

SODOMY FOR A PRIVATE CONSENSUAL ACT

BETWEEN THE PETITIONER AND HIS WIFE

IS A VIOLATION OF THE PETITIONER’S

CONSTITUTIONAL RIGHT TO PRIVACY.

I Soa wd etn a dahkw® <4-d ue Wma een a 4 o 7

APPENDIX A

(Opinion of the United States Court of Appeals

or Chee wk ces la

APPENDIX B

(Opinion of the United States Air Force

ce ee Sa

iV

TABLE OF AUTHORITIES

Page

Supreme Court Cases

Bowers v. Hardwick, 478 U.S. 186 (1986)........... 4

Carey v. Population Serv. Intl., 431

Nena 15 Cera Ek RON Ko teak eae OS 5

Eisenstadt v. Baird, 405 U.S. 438 (1972)............ 6

Griswold v. Connecticut, 381 U.S. 479 (1965). ....... l

Roe & Wee; S10 US. TIS FISD) ve es 1

Thornburg v. American College of

Obstetricians & Gynecologists,

SE PI os op bcc bis been sev rnnee as 6

Military Cases:

United States v. Gates, 40 M.J. 354

es TE | WR ie eeendire Sire anit Enere ae -are 6

United States v. Thompson, 47 M.J. 378 (1997)....... |

Federal Statutes:

10 U.S.C.A. § 867(a) (West Supp. 1996)........... ]

10 U.S.C.A. § 880 (West Supp. 1996) .............. 2

10 U.S.C.A. § 892 (West Supp. 1996) .............. 2

10 U.S.C.A. § 925 (West Supp. 1996) .............. 2

10 U.S.C.A. § 928 (West Supp. 1996) .............. 2

10 U.S.C.A. § 934 (West Supp. 1996) .............. 2

28 U.S.C.A. § 1259(3) (West Supp. 1996)........... l

1s ene eee

|

The petitioner, Senior Airman Matthew C. Thompson,

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 his case on December 16, 1997.

OPINIONS BELOW

The order and judgment of the United States Court of

Appeals for the Armed Forces, reported at United States v.

Thompson, 47 M.J. 378 (1997), is located at Appendix A. The

unpublished opinion of the United States-Air Force Court of

Criminal Appeals (No. ACM 31803, August 8, 1996) is

located at Appendix B.

JURISDICTION

The judgment of the United States Court of Appeals for

the Armed Forces was entered on December 16, 1997. The

jurisdiction of this Court is invoked under 28 U.S.C.A. § 1259

(3) (West Supp. 1996) and 10 U.S.C.A. § 867(a) (West Supp.

1996).

CONSTITUTIONAL PROVISIONS INVOLVED

The Constitution recognizes a right of privacy with

respect to those rights regarded as “fundamental” or

“implicit” in the concept of ordered liberty. Roe v. Wade, 410

U.S. 113 (1973). Although privacy is not a specifically

enumerated right in the Constitutional Bill of Rights, the First

Amendment has a “penumbra where privacy is protected from

governmental intrusion.” Griswold v. Connecticut, 381 U.S.

479, 483 (1965).

STATEMENT OF THE CASE

Procedural History:

On 10-13 July 1995, the Petitioner was convicted by a

general court-martial. Petitioner was charged with attempted

murder of his wife in violation Article 80, U.C.M.J., 10

U.S.C. § 880, two specifications of assault on his wife in

violation of Article 128, U.C.M.J., 10 U.S.C. § 928, one

specification of consensual sodomy with his wife in violation

of Article 125, U.C.M.J, 10 U.S.C. § 925, one specification of

communicating a threat in violation of Article 134, U.C.M.J.,

10 U.S.C. § 934, and one specification of a failure to obey a

lawful order in violation of Article 92, U.C.M.J., 10 U.S.C.

§ 892.

One specification of assault and the Charge of failing to

obey the order were dismissed. The Petitioner was convicted,

contrary to his pleas, of the remaining charges and

specifications. He was found not guilty of attempted murder

but was found guilty of the lesser-included offense of

aggravated assault.

The petitioner was sentenced to a Bad Conduct

Discharge, confinement for 30 months, forfeiture of all pay

and allowances, and reduction to Airman Basic. The

convening authority approved the sentence as adjudged on

September 12, 1995. On August 8, 1996 the Air Force Court

of Criminal Appeals affirmed the findings and sentence.

Appendix B. On December 16, 1997, the United States Court

of Appeals for the Armed Forces affirmed the decision of the

lower military court. Appendix A.

Statement of Facts:

The Petitioner and his wife were married during their

assignment in Germany in 1993. The Petitioner’s wife had a

daughter prior to their marriage. The Petitioner’s wife

SS NS aS

a hi tieeaaialae aaa

testified against her husband, the Petitioner, about the March

19, 1995 incident. (TR. 90-137).

She said that she and her husband went socializing at

friends’ homes that afternoon and evening and that her

husband drank heavily during the course of that time. She

said that she left the party at about 2100 hours (9:00 p.m.) and

took her daughter home but that the Petitioner stayed. She

explained that he returned home late and woke her up “real

gentle like” and that he was feeling amorous. (TR. 103). She

said she told him she was not interested in engaging in sex.

She said he left the room temporarily but returned and got the

pistol the two kept in their bedroom. (TR. 103). She said he

wanted to talk about her adultery but that she refused. (TR.

107). She claimed they argued, he became increasingly angry

and he eventually pushed her to the floor and straddled her.

(TR. 109). She said that as they argued, he would not let her

leave the room in spite of her best efforts, and hit her with his

hands and the gun multiple times (TR. 109) and kicked her

once. (TR. 110). This was the basis of Charge II]. She said

that this argument lasted “probably about an hour” when she

finally admitted to him that she had been committing adultery.

(TR. 111). She said he then became even angrier and pointed

the gun at her forehead. (TR. 111-112). This was the basis of

Charge I. She said she then decided to calm her husband

down by unzipping and pulling down his pants and

performing oral sex on him. (TR. 114). She explained that he

initially refused but eventually succumbed to her

ministrations. (TR. 129-130). Afterwards, she said, they

both took a shower. (TR. 115). The Petitioner then called a

friend who came by for a short visit but stayed only a half-

hour or so. (TR. 116). They went to bed, he fell asleep and

she then left the house. (TR. 118).

REASON FOR GRANTING THE WRIT

CONVICTION OF THE APPELLANT FOR

SODOMY FOR A PRIVATE CONSENSUAL ACT

BETWEEN THE APPELLANT AND HIS WIFE IS

A VIOLATION OF THE APPELLANT’S

CONSTITUTIONAL RIGHT TO PRIVACY.

As discussed above, the Petitioner’s wife, an active duty

military member, initiated the act of sodomy upon her

husband. He initially resisted but eventually succumbed to

her ministrations and allowed her to commit sodomy upon

him. (TR. 114, 129-130). This was done in the privacy of

their marital bedroom (at the conclusion of the argument that

gave rise to the assault charges). The act was not charged as a

forcible sodomy.' Although the military judge clearly found

this charge to be of questionable judgment, he overruled the

defense motion to find the charge failed to state an offense.

(App. Ex. II, II, R 21-26, 31).

This Honorable Court has found that privacy is a right

protected by the “penumbra” of the Bill of Rights and that

marriage is a “relationship lying within th[is] zone of

privacy.” Griswold v. Connecticut, 381 U.S. 479 (1965)

(overturning a state law prohibiting use of contraceptives by

married couples). The Supreme Court did address the issue of

whether homosexual sodomy is protected by the

Constitutional right to privacy and found that it is not. This

Court found “no connection between family, marriage, or

procreation on the one hand and homosexual activity on the

other.” Bowers v. Hardwick, 478 U.S. 186, 191 (1986).

However, the Court limited its holding to homosexual

'Trial counsel conceded that the act was not forcible sodomy (TR. 24).

The appellant does note, however, that trial counsel did seem to be arguing

some form of forcible sodomy at several points during the record. See

e.g., TR. 200, 215.

activity. The Court refused to rule on the question of adult

consensual heterosexual activity—let alone activity within

marriage. Bowers v. Hardwick, 478 U.S. at 188 n2. As

Justice Stevens, joined by Justices Brennan and Marshall in

dissent, asserted “[t]he essential ‘liberty’ that animated the

development of cases like Griswold, Eisenstadt,? and Carey?

surely embraces the right to engage in [marital]

nonreproductive, sexual conduct . . . our prior cases thus

establish that a State may not prohibit sodomy within ‘the

sacred precincts of marital bedrooms.’” Jd.

In affirming the petitioner’s conviction, the United States

Court of Appeals for the Armed Forces relied on the fact that

this consensual act of sodomy occurred at the end of a brutal

beating. That court held:

The extent to which the constitutional right to

privacy prohibits a prosecution for sexual relations

within a marital relationship raises important

constitutional questions. Any such constitutional

right, however, must bear a reasonable relationship

to activity that is in furtherance of or supportive of

the interests of the marital relationship. Those

interests are not at issue in circumstances where, as

in this case, the husband is engages in a brutal

beating of his wife. See generally Mil.R.Evid.

504(c)(2)(A), Manual for Courts-Martial, United

States (1995 ed.) (privilege or confidential marital

communications does not exist “[i]n proceedings in

which one spouse is charged with a crime against

the person...of the other spouse....”). Under the

circumstances of this case, appellant is in no

position to claim the protection of a constitutional

2 Eisenstadt v. Baird, 405 U.S. 438 (1972).

3Carey v. Population Serv. Intl., 431 U.S. 678 (1977).

—

right that is intended to protect the interest of the

marital relationship.

Thompson, 47 M.J. at 379. While it is true that the act of

sodomy case at the end of a brutal beating, the lower court

failed to realize that the act of sodomy was consensual and

actually contributed to marital harmony. The Petitioner’s wife

initiated the act of sodomy. This act was consensual and was

successful in stopping the beating. Petitioner was charged

and convicted for the various assaults. He does not challenge

those convictions here. But the act of sodomy was consensual

and in furtherance of the marital relationship. It is this

conviction that violates his constitutional right of privacy.

Griswold’s right to privacy recognized the unique bond

of the marital relationship, and has been extended to

unmarried persons only in limited circumstances. Compare

Eisenstadt v. Baird, 405 U.S. 438, 453 (1971) (right to use

contraceptives extends to unmarried couples), with Bowers v.

Hardwick, 478 U.S. 186, 191 (1986) (no constitutional right

to engage in homosexual sodomy). It has specifically been

limited in the military. United States v. Gates, 40 M.J. 354

(C.M.A. 1994) (conviction upheld for “consensual,

noncommercial. heterosexual fellatio that is performed in

private between two unmarried adults.”). The crux of the

Griswold decision is that government has no legitimate

interest in regulating private, consensual sexual activity

between a husband and wife.

The Petitioticr was convicted for engaging in private,

noncommercial, consensual oral sodomy with his wife. This

intimate behavior falls squarely within this Honorable Court’s

recognition that “the Constitution embodies a promise that a

certain private sphere of individual liberty will be kept largely

beyond the reach of government.” Thornburgh v. American

College of Obstetricians & Gynecologists, 476 U.S. 747, 772

(1986). The lower court’s decision invades the Petitioner’s

constitutional right of privacy.

CONCLUSION

The Petitioner’s constitutional right of privacy has been

invaded by his conviction for his private, consensual,

noncommercial act of oral sodomy with his wife. This is

contrary to prior rulings of this Honorable Court and thus,

must not stand.

The petition for a writ of certiorari should be granted.

Respectfully submitted,

W. CRAIG MULLEN

Captain, United States Air Force

Appellate Defense Division

Counsel of Record

| DouGLas H. KOHRT

| Colonel, United States Air Force

' Chief, Appellate Defense Counsel

Counsel for Petitioner

Air Force Legal Services Agency

Appellate Defense Division

112 Luke Avenue, Suite 208

Bolling AFB, DC 20332-8000

(202) 767-1562

February 1998

la

APPENDIX A

UNITED STATES, Appellee

V.

Matthew C. THOMPSON, Senior Airman

U.S. Air Force, Appellant

No. 96-1412

Crim. App. No. 31803

United States Court of Appeals for the Armed Forces

Argued November 6, 1997

Decided December 16, 1997

Counsel

For Appellant: Captain W. Craig Mullen (argued); Colonel

Douglas H. Kohrt (on brief); Colonel David W. Madsen and

Major Ormond R. Fodrea.

For Appellee: Captain Steven D. Dubriske (argued); Colonel

Brenda J. Hollis and Lieutenant Colonel Michael J. Breslin

(on brief).

Military Judge: Terence A. Curtin

PER CURIAM:

Contrary to his pleas, appellant was convicted by a

general court-martial of officer and enlisted members of

assault, aggravated assault, and sodomy, in violation of

Articles 128(a), 128(b), and 125, Uniform Code of Military

Justice, 10 USC §§ 928(a), 928(b), and 925, respectively.

Appellant was sentenced to a bad-conduct discharge,

confinement for 30 months, total forfeitures, and reduction to

2a

the lowest enlisted grade. The convening authority approved

these results, and the Court of Criminal Appeals affirmed in

an unpublished opinion.

This Court granted review of the following issue:

WHETHER CONVICTION OF APPELLANT FOR |

SODOMY FOR A PRIVATE, CONSENSUAL |

ACT BETWEEN APPELLANT AND HIS WIFE

IS A VIOLATION OF APPELLANT’S

CONSTITUTIONAL RIGHT TO PRIVACY.

In addition, we specified the following issue:

WHETHER IT WAS PREJUDICIAL ERROR FOR

THE MILITARY JUDGE TO ENTER THE

CLOSED DELIBERATIVE SESSION.

DISCUSSION OF THE GRANTED ISSUE

Appellant was convicted of assault and aggravated

assault arising out of an attack on his wife. In the course of

the beating, appellant held a 9 mm handgun against his wife’s

forehead and attempted to fire it. The weapon, although

loaded, did not discharge. As appellant was loading a second

clip in the gun, his wife attempted to divert his attention by

engaging him in an act of sodomy. This act formed the basis

of the sodomy charge against appellant. Appellant asserts that

is sodomy conviction represents an “intrusion . . . into the

sanctity of the marital relationship [which] violates guarantees

of privacy found in the penumbra of the Bill of Rights.” Final

Brief at 6.

The extent to which the constitutional right to privacy

prohibits a prosecution for sexual relations within a marital

relationship raises important constitutional questions. Any

such constitutional right, however, must bear a reasonable

relationship to activity that is in furtherance of or supportive

of the interests of the marital relationship. Those interests are

3a

not at issue in circumstances where, as in this case, the

husband is engaged in a brutal beating of his wife. See

generally Mil.R.Evid. 504(c)(2)(A), Manual for Courts-

Martial, United States (1995 ed.) (privilege for confidential

marital communications does not exist “[i]n proceedings in

which one spouse is charged with a crime against the

person . . . of the other spouse. . . .”). Under the circumstances

of this case, appellant is in no position to claim the protection

of a constitutional right that is intended to protect the interests

of the marital relationship.

DISCUSSION OF THE SPECIFIED ISSUE

During the deliberation of the members on findings, the

members advised the military judge that they had questions

about the findings worksheet. The military judge,

accompanied by the court reporter, entered the deliberation

room without counsel or appellant and answered the

members’ questions. We agree with the Court of Criminal

Appeals that it was error for the military judge to enter the

closed session and conduct proceedings without appellant or

counsel. Unpub. op. at 5; see Art. 39(b), UCMJ, 10 USC

§ 839(b); United States v. Allbee, 5 USCMA 448, 450, 18

CMR 72, 74 (1955) (error when law officer entered closed

session to pass on form of proposed sentence).

Because this error was neither constitutional nor

jurisdictional, we test it for prejudice under Article 59(a),

UCMSJ, 10 USC § 859(a). Under the specific circumstances of

this case, we agree with the conclusion of the Court of

Criminal Appeals that appellant is not entitled to relief

because his substantial rights were not materially prejudiced

by the error.

As we noted in Allbee, violation of Article 39(b) creates

a “rebuttable presumption . . . [of] prejudice” against the

4a

Government. 5 USCMA at 452, 18 CMR at 76. At the outset

of our analysis, we note that the military judge took the court

reporter into the closed session and made a verbatim

transcript, which then was provided to the parties at trial. As a

result, we have a record of the session at the appellate level

and can review this case for prejudice. Compare United States

v. Martinez, 40 MJ 82, 84 (CMA 1994).

Our review of the transcript shows that the questions

asked by the members concerned only the form of the findings

worksheet and not the substance of the deliberations. The

members already had reached their decisions as to the

findings,and they simply inquired how to enter the lesser-

included offenses onto the worksheet. Nothing was said in the

closed session that would have been objectionable if it had

been said in an open session. All of the answers given by the

military judge would have been appropriate had they been

stated in an open session. Appellant has not identified any

prejudice. Neither trial nor appellate defense counsel has

identified any matter that appellant would have either

challenged or sought to clarify had it been stated in an open

session. Under these circumstances, we find that the

Government has rebutted the presumption of prejudice, and

appellant is not entitled to relief.

CONCLUSION

The decision of the United States Air Force Court of

Criminal Appeals is affirmed.

Sa

APPENDIX B

UNITED STATES AIR FORCE COURT OF

CRIMINAL APPEALS

UNITED STATES

Senior Airman MATTHEW C. THOMPSON,

FR466—59-6943

United States Air Force

ACM 31803

8 August 1996

Sentence adjudged 13 July 1995 by GCM convened at Dyess

Air Force Base, Texas. Military Judge: Terence A. Curtin

Approved sentence: Bad-conduct discharge, confinement for

30 months, forfeiture of all pay and allowances, and reduction

to E-1. a

Appellate Counsel for Appellant: Colonel Jay L. Cohen and

Major Ormond R. Fodrea

Appellate Counsel for the United States: Colonel Jeffery T.

Infelise, Lieutenant Colonel Michael J. Breslin, and Captain

R. Scott Howard.

Before

HEIMBURG, GAMBOA; and SENANDER

Appellate Military Judges

6a

OPINION OF THE COURT

SENANDER, Judge:

The appellant was convicted, contrary to his pleas, by a

court-martial composed of officer and enlisted members, of

sodomy, aggravated assault, and assault and battery. Articles

125 and 128, UCMJ, 10 U.S.C. §§ 925, 928 (1994). His

approved sentence is a bad-conduct discharge, confinement

for 30 months, forfeiture of all pay and allowances, and

reduction to E—1. The appellant asserts violation of his

constitutional right to privacy by his conviction of consensual

sodomy with his wife. He also asserts multiplicity, unresolved

conflict with counsel, and deprivation of his right to a public

trial when the military judge entered the members’ closed

deliberations. We find error, but no prejudice, and affirm.

BACKGROUND

The appellant and his wife of three years, an active duty

senior airman, socialized with friends during the late

afternoon and evening of March 18, 1995. During the course

of the evening, the appellant became intoxicated. While at

their friend’s house, the appellant invited his wife to join him

in their car, where he questioned her repeatedly about her

rumored infidelity. She denied that she had been unfaithful,

and appellant returned to his friend’s house. Another

confrontation occurred in the friend’s house. The appellant’s

wife went home without appellant.

When the appellant returned home, his wife was

sleeping. He attempted to interest her in intercourse, but she

told him that she was tired and not feeling -well. He left the

room, but returned later, turned on the light and found his 9

mm pistol. The appellant’s wife thought she heard him “put a

clip in the gun and cock the hammer.” He again questioned

her about rumors of her infidelity, while the pistol lay on the

bed between them. After repeated questioning, she went to the

Ta

bathroom. He followed her into the bathroom and pushed her

against the latrine and to the floor as she tried to leave the

bathroom.

She returned to the bed and sat on the side, as appellant

continued to question her about her rumored infidelity, which

she denied. He became angrier and pushed her to the floor.

The appellant jumped on top of her back while she was on her

hands and knees. He then repeatedly hit her about the head,

arms and back with his hands and the pistol, which he had in

his right hand. She tried to leave the bedroom when he got up,

but appellant pushed her over and sat on top of her. He pinned

her torso-and arms to the floor. The questioning and

intermittent hitting continued for what appellant’s wife

described as “about an hour.” While still pinned to the floor,

she admitted to one incident of adultery and appellant became

enraged. He pushed the 9 mm pistol against her forehead and,

based on what his wife heard, pulled the trigger. The pistol

did not fire because the mechanism would not work when it

was pushed tightly against her forehead. She heard a clicking

sound and the appellant saying “Damn, something is wrong

with the gun.”

He reached over to get another clip and started working

on the pistol. While he worked, his wife was able to free her

arms. In an attempt to distract the appellant, she unzipped his

pants ant took his penis out. The appellant’s wife testified that

the appellant asked, “What are you doing?” and she told him,

“Just let me do this. I want to do this.” The appellant

responded, “I don’t want you to do that.” Despite his protest,

appellant’s wife performed fellatio on him. Her effort to

distract him worked and he suggested they both take a

shower. The appellant then called a female acquaintance while

his wife fixed her hair. The appellant’s friend came over and

talked for about 30 minutes. After the friend left, the appellant

fell asleep and his wife took their daughter and went for help.

8a

SODOMY

The appellant asserts that his conviction for the offense

of sodomy with his wife is a violation of his constitutional

right to privacy. The standard of review for a fundamental

personal liberty such as the constitutional right to privacy is a

de novo review by the Court. Jacobellis v. Ohio, 378 U.S.

184, 190 (1964).

Article 125, UCMJ, prohibits unnatural carnal copulation

with another person of the same or opposite sex. There is no

exception provided for married couples. The appellant asserts

case law only addresses heterosexual fellatio that is

performed, in private, between two unmarried adults. See

United States v. Gates, 40 M.J. 354 (C.M.A. 1994); United

States v. Henderson, 34 M.J. 174 (C.M.A. 1992); United

States v. Fagg, 34 M.J. 179 (C.M.A. 1992), cert. denied, 506

U.S. 829, 113 S.Ct. 92 (1992). He asks us to distinguish this

case because the act of sodomy occurred between married

adults. We decline to do so.

We certainly can question the wisdom of charging this

consensual sodomy offense, initiated by the appellant’s wife

to distract him, along with the extremely serious assault

charges. However, we decline to conclude that the appellant

had an overriding constitutional right to privacy, based on his

marital status, while he was engaged in a brutal beating of his

wife. This error is rejected.

MULTIPLICITY

The appellant next asserts that the aggravated assault and

the assault and battery are multiplicious because they arise

from the same incident. The appellant was charged with a

violation of Article 80, UCMJ, and convicted of the lesser

included offense of aggravated assault, by placing the pistol

against his wife’s forehead and pulling the trigger. In addition,

9a

he was charged with aggravated assault by striking his wife

with the pistol, but was convicted of the lesser included

offense of assault and battery.

In United States v. Teters, 37 M.J. 370 (C.M.A. 1993),

cert. denied, __ U.S. — 114 S.Ct. 919 (1994), the Court of

Appeals for the Armed Forces returned to the congressional

intent/elements test for determining the multiplicity of

charges. See Blockburger v. United States, 284 U.S. 299, 304,

52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). The threshold test of

the Teters/Blockburger analysis is whether the specifications

arose out of the same act or course of conduct. United States

v. Neblock, 40 M.J. 747 (A.F.C.M.R. 1994), pet. denied, 42

M.J. 96 (1995). Clearly, placing a loaded firearm against his

wife’s forehead and pulling the trigger is a different act than

hitting her with his hands and the firearm. We do not find

these charges multiplicious. In addition, we note the appellant

failed to object to the charging of these offenses as

multiplicious and thereby forfeited the issue. United States v.

Lloyd, 43 M.J. 886 (A.F.Ct.Crim.App. 1995).

CONFLICT WITH COUNSEL

The appellant expressed dissatisfaction with his attorneys

at the end of his prepared unsworn statement. He stated in

part: “. . .there were certain things that was left out of

evidence that could have been presented to you guys, but it

wasn’t. They considered it to hurt my case. I didn’t. I’ve not

been represented from day one. I was almost pressured into

signing a pretrial agreement.”

On appeal, appellant does not allege ineffectiveness of

trial defense counsel. The thrust of his assertion of error is

that the military judge failed to resolve on the record that the

accused was satisfied with his defense team. Following a

defense-requested recess, the circuit defense counsel stated on

10a

the record: “ We have talked with our client. He does wish for

myself and Captain [F] to continue to represent him in this

trial and the post-trial matters as well.” The military judge

made no inquiry as to appellant’s desires.

This is not a case of conflict of interest where a defense

attorney represents another accused in the same matter. United

Stated v. Henry, 42 M.J. 231 (1995). Here we have an

appellant who is dissatisfied with the result of his trial and

vents his frustration concerning the performance of his counsel

to the court members. When defense counsel learned of

appellant’s dissatisfaction, they asked for a recess and

determined if the client wanted to discharge his defense team

or was merely making an allegation out of frustration. The

defense counsel made that determination after consulting with

the appellant and notified the military judge. The military

judge should have asked the appellant if he was satisfied with

his counsel, but we conclude from his actions that appellant

concurred in his counsel’s assertion that the conflict had been

resolved.

We note that the appellant demonstrated during voir dire

and the unsworn statement presentation that he was an active

participant who was not intimidated by the courtroom setting.

When defense counsel peremptorily challenged a member, the

military judge asked the appellant if he concurred and the

appellant said “no.” After discussion between appellant and

his counsel, the challenge was withdrawn. The appellant again

demonstrated his active participation when he threw down the

prepared unsworn statement and told the court members what

he wanted them to know about the case, including his

dissatisfaction with counsel. Only moments after the circuit

defense counsel told the military judge that the appellant

wished to retain both defense counsel, counsel advised the

military judge that appellant wanted counsel to argue for a

lla

punitive discharge. The military judge addressed the

appellant, who unequivocally agreed to have his counsel

argue for a punitive discharge.

We are, therefore, convinced the appellant would not

have sat silently if he had disagreed with his defense counsel’s

assertion that their conflict had been resolved. The appellant

would certainly have commented if he did not want his

counsel to proceed with defending him. At this point in the

trial the sentencing argument was all that was left for defense

counsel to do, and the appellant concurred in the most

significant portion of that by telling the military judge that he

wanted his counsel to argue for a punitive discharge. If the

appellant were not satisfied with his defense counsel, he

would not have told the military judge that he wanted them to

argue for a punitive discharge. Although we find the military

judge erred, we find no prejudice to appellant under the

circumstances of this case.

DELIBERATION

The appellant asserts the military judge erred by

conferring with the court members during findings

deliberations outside the presence of counsel and the accused.

The members had questions concerning the findings

worksheet which the military judge determined could not be

resolved in open court. The military judge and the court

reporter entered the deliberation room without counsel or the

appellant and the judge answered questions concerning how

to reflect the member’s findings on the findings worksheet.

Article 39(b), UCMJ, 10 U.S.C. § 839(b) (1994), prohibits

any consultation in the presence of the court members without

the presence of the military judge, all counsel, and the

accused. Violation of this prohibition creates a rebuttable

presumption of prejudice. United States v. Allbee, 5

U.S.C.M.A. 448, 18 C.M. R. 72 (1955).

12a

Here, the military judge erred by entering into a closed

session without the appellant and counsel being present.

However, we conclude appellant suffered no harm and the

presumption of prejudice is rebutted. The military judge

questioned the president in open court, on the record, in front

of the appellant and counsel for both sides. The president

confirmed the military judge was in the closed deliberation

session merely to assist in putting the findings they had

already reached onto the worksheet. All the discussion

between the members and the military judge was recorded

verbatim. Trial defense counsel moved for a mistrial before

the members returned a sentence, based on the closed session.

The military judge directed the reporter to prepare and give

defense counsel and appellant a verbatim record of the closed

session meeting before completion of the trial. The trial

defense counsel read the verbatim transcript and renewed his

motion for a mistrial without citing specific prejudice to the

appellant. Under the circumstances, we find the military

judge’s presence did not prejudice the appellant.

We conclude the findings and sentence are correct in law

and fact, the sentence is appropriate, and no error prejudicial

to the substantial rights of the appellant was committed.

Accordingly, the findings of guilt and the sentence are

AFFIRMED.

Senior Judge HEIMBURG and Judge GAMBOA concur.

OFFICIAL

ROXANE M.G. PORTER

Staff Sergeant, USAF

Chief Court Administrator