UNITED STATES, Appellee
Matthew C. THOMPSON, Senior Airman
U.S. Air Force, Appellant
Crim. App. No. 31803
United States Court of Appeals for the Armed Forces
Argued November 6, 1997
Decided December 16, 1997
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
Military Judge: Terence A. Curtin
This Opinion is subject to editorial correction before final publication.
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 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 The convening authority approved these results, and the Court of Criminal Appeals affirmed in an unpublished opinion.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 his 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 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), UCMJ, 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 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.
The decision of the United States Air Force Court of Criminal Appeals is affirmed.