UNITED
STATES, Appellee
v.
Joshua P.
LOVETT, Staff Sergeant
No.
03-0072
Crim. App.
No.
33947
Argued
Decided
CRAWFORD,
C.J., delivered the opinion of the Court, in which GIERKE, EFFRON,
BAKER, and
ERDMANN, JJ., joined.
Counsel
For Appellant: Mr. Norman R. Zamboni,
Esq. (argued); Colonel Beverly B. Knott, Major Karen L.
Hecker, Major Andrew S. Williams,
and Captain
James M. Winner (on brief); Major Terry L. McElyea.
For Appellee:
Major John C. Johnson
(argued); Colonel LeEllen Coacher,
Lieutenant
Colonel Robert B. Combs, and Captain Kevin P. Stiens
(on brief); Colonel Anthony P. Datillo,
Lieutenant
Colonel Lance B. Sigmon, and Major
Linette I. Romer.
Military Judge: B.
T. Brown and L. S. Murnane.
THIS OPINION IS SUBJECT TO
EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
Chief
Judge CRAWFORD delivered the opinion of the Court.
On May 12 and
Appellant
was sentenced to a dishonorable discharge, confinement for 15 years,
total
forfeiture of all pay and allowances, and reduction to pay grade E-1. The convening authority approved the sentence
as adjudged and waived the forfeitures for six months for the benefit
of
Appellant’s family.
On
I. WHETHER
THE MILITARY JUDGE ERRED BY ADMITTING INTO EVIDENCE HEARSAY STATEMENTS
MADE BY
APPELLANT’S WIFE, MM, AND LC, AND BY EXCLUDING, AS HEARSAY, EXCULPATORY
EVIDENCE OFFERED BY APPELLANT.
II.
WHETHER THE MILITARY JUDGE ERRED BY
INSTRUCTING THE PANEL THAT THE MAXIMUM SENTENCE WAS LIFE WITHOUT PAROLE
WHEN
THAT PUNISHMENT WAS NOT AN AUTHORIZED SENTENCE AS ITS IMPLEMENTATION
HAD NOT
YET BEEN ORDERED BY THE PRESIDENT, OR, IN THE ALTERNATIVE, WHERE
INSUFFICIENT
EVIDENCE WAS PRESENTED AT TRIAL TO PROVE THAT ANY ALLEGED ACTS OF RAPE
HAD
OCCURRED AFTER 19 NOVEMBER 1997.
III.
WHETHER APPELLANT’S CONVICTION FOR
SOLICITATION SHOULD BE SET ASIDE BECAUSE (1) IT FAILS TO STATE AN
OFFENSE, (2)
IT IS NOT A LESSER INCLUDED OFFENSE OF SOLICITATION TO COMMIT MURDER,
OR (3)
THERE IS A FATAL VARIANCE BETWEEN THE CHARGED SPECIFICATION AND THE
FINDINGS.
For the reasons set
forth below, we affirm as to Issue I and
reverse as to
Issue III. Because we grant Appellant
relief on Issue III, we need not address Issue II.
FACTS
Appellant
and his wife (TL) married in 1994. TL
had a son (CF) and daughter (MM) from previous relationships. TL testified that in the spring of 1997, when
MM was five years old, MM told TL that Appellant was “touching” her. When TL confronted Appellant with this
accusation, he denied that this ever occurred.
During
the following school year (1997-98), MM developed a friendship with
another
little girl (DI) in her kindergarten class.
The girls played together and occasionally they would sleep at
each
other’s homes. On one occasion, DI’s
mother observed MM pulling up her dress and dropping her underwear. Later, DI told her mother that MM had been
showing boys her “privates” and telling a boy at school that he should
be
kissing DI’s “privates.” DI’s mother
relayed the incident to TL. Around
Following
TL’s conversation with DI’s mother, TL questioned MM about her
behavior, asking
whether anyone had ever touched her. MM
first responded that the doctor had touched her, but after further
questioning
from TL, MM eventually admitted that “Daddy put his private in [my] tushy.” TL
immediately called a friend, LS, who came to the house and asked MM to
tell her
what she had told her mother. MM
revealed additional information to LS, who then took MM to the
emergency room
at Shaw AFB. There, the pediatric nurse
practitioner who examined MM found a defect in her hymen that was
consistent
with some form of penetration.
At
trial, MM testified (after TL, but before LS) that Appellant on many
occasions
“stuck his private up my private” while the two were in Appellant’s
bedroom and
study. MM also
testified that it hurt when Appellant did this, that Appellant used a
bottle of
lotion during these acts, and that Appellant told her not to tell
anyone. MM had previously told a
victim’s advocate
that Appellant started doing this to her when she was five years old.
MM’s brother, CF, also
testified at trial (after TL, MM, and LS) that Appellant frequently
took MM
into his (Appellant’s) bedroom or the study.
CF said he was not permitted to enter the room, even if he
knocked on
the door. CF further testified that he
heard MM crying when she was alone with Appellant, and that he
sometimes saw a
bottle of lotion in the room after MM and Appellant left.
In addition to raping MM, Appellant was
charged with soliciting a man (LC) to murder TL “by telling [LC] that
he wanted
his wife to disappear, providing [LC] a picture to identify the said
[TL], and
discussing how much it would cost to have [LC] make the said [TL]
disappear.” LC testified that Appellant
told him that he wanted TL to disappear.
He further testified that Appellant gave him a picture of TL,
her car
keys, and discussed how much this would cost.
After evidence was presented, the
Government requested that the military judge instruct the members on
the
lesser-included offenses of the solicitation specification, including
the
lesser-included offense of soliciting a general disorder in violation
of
Article 134. In response, the military
judge proposed an instruction that would identify the following
elements of the
lesser-included offense: that “[Appellant] solicited [LC] to take some
action
to cause [TL] to disappear or to fail to appear in court[,]”
and “that under the circumstances [Appellant’s] conduct . . . was to
the
prejudice of good order and discipline in the armed forces or was of a
nature
to bring discredit upon the armed forces.”
Appellant objected to this proposed instruction.
Over this objection, the military judge
instructed the members on the general disorder lesser-included offense,
in
pertinent part, as follows:
[I]t
must
be proven beyond a reasonable doubt that the accused intended that [LC]
commit
every element of this offense. Those
elements are as follows: first, that at the time and place alleged, the
accused
or [LC] engaged in a specific act for the purpose of wrongfully causing
[TL] to
be unable to appear at a scheduled proceeding in a criminal or civil
trial; and
second, that, under the circumstances the conduct of the accused was to
the
prejudice of good order and discipline in the armed forces or was of a
nature
to bring discredit upon the armed forces.
After deliberations, the members excepted
out “murder” from the specification and found Appellant guilty of the
“general
disorder” of
soliciting
the commission of an offense to the prejudice of good order and
discipline . .
. in that [Appellant] . . . did . . . wrongfully solicit [LC] to cause
[TL] to
disappear or to wrongfully prevent her from appearing in a civil or
criminal
proceeding . . . by telling [LC] he wanted his wife to disappear,
providing [LC]
the keys to [TL’s] car, a picture to identify the said [TL] and by
discussing
how much it would cost to make the said [TL] disappear.
Appellant
claims that the military judge erred in admitting, under hearsay
exception
rules, hearsay contained in TL’s written statement and LS’s
in-court testimony. Appellant also
argues that the military judge erred in excluding, on hearsay grounds,
exculpatory testimony from LC.
Appellant’s
first complaint concerns Prosecution Exhibit (PE) 12, consisting of a
written
statement made by TL to the Air Force Office of Special Investigations
(AFOSI)
on
The
exhibit was originally marked as Defense Exhibit I for identification,
and was
used in this form by the defense counsel to cross-examine TL. On redirect, trial counsel offered TL’s
written statement as a PE 12 for his own use.
This exhibit was generally consistent with TL’s affidavit
furnished to
the pre-trial investigator, originally marked DE J for identification
and
subsequently admitted as PE 13.
Appellant did not object to the admission of PE 13.
Appellant did object to PE 12, claiming it
contained uncharged misconduct and hearsay statements.
Regarding the hearsay objection, the judge
extensively discussed the statements’ admissibility under Military Rule
of
Evidence 801(d)(1)(B) [hereinafter M.R.E.] ,
as prior
consistent statements. Over defense
objection, the military judge admitted PE 12 under M.R.E. 801(d)(1)(B). In
summarizing
her ruling on PE 12 for the record, the judge noted, in the
alternative, that
the statements in PE 12 would also qualify as residual hearsay under
M.R.E.
807:
With regard to Prosecution Exhibit 12, I’m overruling the
defense objection to Prosecution Exhibit 12 under 80 – Military Rule of
Evidence 801(d)(1), and should I be mistaken that 801(d)(1) actually
applies, I
find there are also sufficient circumstantial guarantees of
trustworthiness in
that the witness has taken the stand and has been subjected to
cross-examination on the statement under oath, and therefore, I would
find that
it is also admissible under Military Rule of Evidence 807, should I be
mistaken
in my analysis under 801(d)(1).
M.R.E. 807 provides
as follows:
A
statement not specifically covered by Rule 803 or 804 [which describe
exceptions to the hearsay rule] but having equivalent circumstantial
guarantees
of trustworthiness, is not excluded by the hearsay rule, if the court
determines that (A) the statement is offered as evidence of a material
fact;
(B) the statement is more probative on the point for which it is
offered than
other evidence which the proponent can procure through reasonable
efforts; and
(C) the general purposes of these rules and the interests of justice
will best
be served by admission of the statement into evidence.
Defense
counsel did not object to the judge’s alternative conclusion as to the
admissibility of PE 12 under M.R.E. 807.
Appellant
also challenges portions of LS’s in-court
testimony
-- which occurred after MM’s trial
testimony --
regarding her October 25 conversation with MM, during which she claimed
MM
stated that Appellant “put his private in her tush”
and touched her “tee-tee.” At trial,
defense counsel objected to this testimony on hearsay grounds,
generally noting
its prior argument based on M.R.E. 807, which Appellant had earlier
advanced
regarding hearsay statements contained in TL’s in-court testimony. Trial counsel countered the objection by
referring to its own earlier arguments on residual hearsay. The judge then summarily overruled defense
counsel’s objection, without explanation.
During the previous residual hearsay discussion to which both
counsel
referred, the military judge had articulated that MM’s
hearsay statements contained in TL’s in-court testimony were material
and more
probative on the point for which they were offered than any other
evidence the
proponent could procure through reasonable efforts.
Appellant
finally argues that LC offered exculpatory testimony, which the
military judge
erroneously excluded on hearsay grounds.
At trial, the Government asked LC how he obtained the job he was
currently holding, whether he knew a friend of TL’s, whether he was
ever
threatened regarding his testimony at Appellant’s court-martial, and
whether he
threatened anyone else. On
cross-examination, defense counsel asked LC whether Appellant told him
that he ”didn’t want any harm to come to
his wife.” Trial counsel objected on
hearsay
grounds. An Article 39(a) session was
called, the members were excused, and LC testified that he could not
recall if
Appellant told him he did not want TL physically harmed.
Defense counsel argued that the statement was
not offered for the truth of the matter asserted, but rather to show
whether LC
actually felt that Appellant was serious about having TL murdered, and
that
therefore the statement fell within the state-of-mind exception to the
hearsay
rule, under M.R.E. 803(3). The military
judge sustained trial counsel’s objection and refused to allow defense
counsel
to inquire further as to the meaning of Appellant’s solicitation
request.
We
hold that even assuming the judge erred
in receiving the hearsay statements within PE 12 into evidence, in
overruling
defense counsel’s objection to LS’s
hearsay
testimony, and in not permitting defense counsel to question LC about
whether
Appellant did not want TL harmed, any such errors were harmless. See Article 59(a), UCMJ, 10 U.S.C. §
859(a) (2002) (“A finding or sentence of court-martial may not be held
incorrect on the ground of an error of law unless the error materially
prejudices the substantial rights of the accused.”).
Regarding
MM’s
hearsay statement in PE 12, TL had already testified about the
statement --
without defense objection -- during direct examination.
Moreover, before PE 12 was offered by the
Government, the defense used it as its own exhibit, admitted for
identification, to cross-examine TL about MM’s
statement to her. The same statement was
also contained in PE 13 -- the summary of TL’s testimony in a
proceeding
pursuant to Article 32, UCMJ, 10 U.S.C. § 832 (2000) -- which was
admitted
without objection by the defense, and was also used by the defense to
cross-examine TL, as an exhibit admitted for identification. As to CF’s hearsay statement in PE 12,
although CF had not yet testified at the time PE 12 was admitted, he
testified
and was cross-examined shortly thereafter, in a manner consistent with
his
statement in PE 12. Regarding MM’s hearsay statement contained in LS’s
in-court testimony, by the time LS testified at trial, the court
members
already had this evidence before them through MM’s
own trial testimony.
In
sum, Appellant suffered no prejudice
from the admission of hearsay statements contained in PE 12 and LS’s trial testimony.
The hearsay statements were addressed without defense objection
during
TL’s direct examination, were used by the defense to cross-examine TL,
were
consistent with and cumulative of the declarants’
own
in-court testimony, and were contained in PE 13, which was admitted
without
defense objection. See United
States v. Gunkle, 55 M.J. 26, 30
(C.A.A.F. 2001)(noting this Court’s
reluctance to find reversible error
where the challenged information is simply cumulative of the victim’s
own
in-court testimony).
Finally,
the judge’s failure to permit
defense counsel to question LC regarding Appellant’s exact intentions
was
harmless. Indeed, the court members
ultimately found that Appellant did not solicit LC to murder TL
-- but
rather only to commit an act prejudicial to good order and discipline. In sum, counsel’s inability to probe LC to
show that he did not solicit murder could not have been prejudicial to
Appellant.
Thus, we affirm
the decision of the CCA as
to Issue I, holding
in agreement with the CCA that any errors on the part of the military
judge
were harmless.
soliciting
the commission of an offense to the prejudice of good order and
discipline . .
. in that [Appellant] . . . did . . . wrongfully solicit [LC] to cause
[TL] to
disappear or to wrongfully prevent her from appearing in a civil or
criminal
proceeding . . . by telling [LC] he wanted his wife to disappear,
providing
[LC] the keys to [TL’s] car, a picture to identify the said [TL] and by
discussing how much it would cost to have [LC] make the said [TL]
disappear.
Appellant
now argues that this variance between the charge and findings was
significant
enough to have prevented him from adequately preparing a defense. In essence, Appellant claims that defending
against a charge of soliciting murder is not the same as defending
against a
charge of soliciting the commission of a general disorder.
Appellant avers that because of this
difference, he was not “on notice” -- and therefore not prepared -- to
defend
against the offense of which he was convicted.
We agree with Appellant, and hold that there was a fatal
variance
between the charged specification and the findings.
“A variance between pleadings and proof
exists
when evidence at trial establishes the commission of a criminal offense
by the
accused, but the proof does not conform strictly with
the offense alleged in the charge.” United
States v. Allen, 50 M.J. 84, 86
(C.A.A.F.
1999). Nevertheless, the Rules for
Courts-Martial authorize findings by exceptions and substitutions, with
the
caveat that they “may not be used to substantially change the nature of
the
offense or to increase the seriousness of the offense or the maximum
punishment
for it.” Rule for Courts-Martial 918(a)(1). See also United States v. Wray, 17 M.J.
375, 376
(C.M.A. 1984).
Minor variances that do not change the
nature of the offense are not necessarily fatal. See
United States v. Hunt, 37
M.J. 344, 347-48 (C.M.A. 1993)(date of rape
charged as
“on or about”); United States v. Willis, 50 M.J. 841 (A. Ct. Crim. App. 1999)(change in language alleged to
be false
under Article 107 violation not material).
“Where, however, an appellant can demonstrate that a variance is
material and that he or she was prejudiced, the variance is fatal and
the
findings thereon can not stand.” United
States v. Teffeau, 58 M.J. 62, 66
(C.A.A.F. 2003)(concluding that the
variation between the charge of
violating a general order by providing alcohol to a recruit and the
findings
that the accused wrongfully engaged in and encouraged a
nonprofessional,
personal relationship with the recruit was material because it deprived
the
accused of the opportunity to defend against the charge).
Prejudice can arise from a material
variance in several ways:
An
appellant may show that the variance
puts him at risk of another prosecution for the same conduct. An appellant may [alternatively] show that
his due process protections have been violated where he was “misled to
the
extent that he has been unable adequately to prepare for trial,” or
where the
variance at issue changes the nature or identity of the offense and he
has been
denied the opportunity to defend against the charge.
The original specification for solicitation
to commit murder read as follows:
[D]id,
at
or near Sumter, South Carolina, between on or about 24 November 1998
and on or about
19 January 1999, wrongfully solicit [LC] to murder [TL], by
telling [LC]
that he wanted his wife to disappear, providing [LC] a picture to
identify the
said [TL], and discussing how much it would cost to have [LC] make the
said
[TL] disappear.
Court-Martial
Order at 1 (emphasis added). The
members’ findings on the above specification -- establishing
Appellant’s
solicitation conviction -- were returned as follows:
Not
Guilty, but guilty of the lesser included offense of soliciting the
commission
of an offense to the prejudice of good order and discipline in the
armed forces
as follows: in that [Appellant] did, at or near Sumter, South Carolina,
between
on or about 24 November 1998 and on or about 19 January 1999, wrongfully
solicit [LC] to cause [TL] to disappear or to wrongfully prevent her
from
appearing in a civil or criminal proceeding pending before a duly
authorized
court of the United States by telling [LC] that he wanted his wife
to
disappear, providing [LC] the keys to [TL]’s car, a picture to identify
the
said [TL], and discussing how much it would cost to make the said [TL]
disappear.
(Emphasis
added.) In essence, Appellant was
convicted of soliciting the commission of obstruction of justice.
The
offense of murder under Article 118,
with which Appellant was originally charged with soliciting, is as
follows:
Any
person
subject to this chapter who, without justification or excuse,
unlawfully kills
a human being, when he --
(1)
has a premeditated design to kill;
(2)
intends to kill or inflict great bodily harm;
(3)
is engaged in an act that is inherently
dangerous to
another an evinces a wanton disregard of human life; or
(4)
is engaged in the perpetration or attempted perpetration of burglary,
sodomy,
rape, robbery, or aggravated arson; is guilty of murder, and shall
suffer such
punishment as a court-martial may direct, except that if found guilty
under
clause (1) or (4), he shall suffer death or imprisonment for life as a
court-martial may direct.
Appellant’s
original charge suggested a violation of clause (1), in that “telling
LC that
he wanted his wife to disappear, providing LC a picture to identify the
said TL, and discussing how much it would
cost to have LC the
said TL disappear” imply premeditation on Appellant’s part, and
Appellant’s
specific intent that such murder be committed.
Upon receiving this charge, Appellant’s defense team channeled
its
efforts in the direction of solicitation of premeditated murder, in
order to
defeat the Government’s attempt to prove premeditated murder beyond a
reasonable doubt. Indeed, assembling
such a defense is what the charge put counsel “on notice” to do.
Given
the explicit language of the charge, Appellant could not have
anticipated
conviction for a lesser-included offense of soliciting a person to
wrongfully
prevent her from appearing in a judicial proceeding.
Because he lacked notice to prepare an
adequate defense, there was a fatal variance between the precise
specification
as charged, and the general findings as returned by the members.
The
decision of the United States Air Force Court of Criminal Appeals is
affirmed
as to Charges I and III and their specifications, and set aside as to
Charge II
and the sentence. The case is returned
to the Judge Advocate General for remand to the Court of Criminal
Appeals,
which may reassess the sentence or order a sentence rehearing.