## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before
LIND, 1 KRAUSS, 2 and PENLAND Appellate Military Judges

UNITED STATES, Appellee

v. Specialist CO REY W. NORTH United States Army, Appellant

ARMY 20140268

Headquarters, U.S. Army Fires Center of Excellence and Fort Sill Gregory A. Gross, Military Judge Colonel Mark W. Seitsing er, Staff Judge Advocate

For Appellant: Li eutenant Colonel Jas on J. Elmore, JA; Major Yolanda McCray
Jones, JA.

For Appellee: Major A.G. Courie III.

27 July 2015

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MEMORANDUM OPINION

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

KRAUSS, Judge:

A military judge sitting as a general court-martial convicted appellant, contrary to his plea s, of aggravated as sault with a dangerou s weapon and willful discharge of a fi rearm in violation of Articles 128 and 134, Un iform Code of Military Justice, 10 U.S.C. §§ 928 and 934 (2012) [h ereinafter UCMJ] . The military judge sentenced appellant to a bad-conduct discharge, confinement for fifteen months, and reduction to the grade of E-1. The convening author ity approved only so much of the sentence as provided for a bad-conduct discharg e, confinement for fourteen months, and reduction to the grade of E-1. The convening authority also

waived automatic forfeitures of all pay and allowances for a period of six months with direction they be paid to appellant’s dependents.

1 Senior Judge LIND took fi nal action in this case prior to her retirement.

2 Judge KRAUSS took final action in this case prior to his retirement.NORTH — ARMY 20140268

2 This case is before the court for review under Article 66, UC MJ. Appellant

has submitted the case on its merits, but pe rsonally raises severa l additional matters

pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A . 1982), one of which

merits discussion and relief.

FACTS

On the evening of 21 Ju ly 2013, at appellant’s hom e, appellant sliced or stabbed Specialist (SPC) MC wi th a large piece of glass, causing deep cuts to SPC MC’s neck and back. Appella nt claimed he acted in self -defense because prior to the assault, SPC MC and SPC SB restrained appellant’s arms an d legs with duct tape. Specialist SB and SPC MC claimed they did so because appellant was behaving in a violent manner toward SPC MC, as well as trying to harm himself by punching walls and slamming his head into a table.

After assaulting SPC MC , appellant ran out his front door and into his neighborhood. Specialist SB called 911 and followed SPC MC to the hospital. Staff Sergeant (SSG) SS, appell ant’s platoon sergeant, ar rived at the hospital and requested that SPC SB take him to appellant’s house so he could see what happened. When they arrived at appellant’s house, SSG SS and SPC SB sa w appellant standing outside wearing only a pair of shorts, no shirt or shoes. Appellant was angry, upset, and according to SSG S, “s till drunk or hungover.” Staff Sergeant SS calmed appellant down and called the unit first sergeant to info rm him that he had located appellant.

At this point, they were in what SSG SS termed a “delayed holding pattern waiting for instructions.” Staff Sergeant SS then asked appellant if he was aware of what had happened and if he was aware of what he had done to SPC MC. Appellant responded that he was aware and “he had wished he’d done it worse [sic].”

The uncontroverted facts in the record reveal that defe nse counsel first

received disclosure of appellant’s statement to SSG SS from the government at around 1800 the evening before arraignment. The next morning, at arraignment, when prompted by the military judge, defense counsel st ated: “Sir, other than the previously mentioned multipl icity motion, the defense ha s no further motions.” Trial immediately ensued.

The government called SSG SS and elicited appellant’s statement that “he had

wished he’d done it wors e.” Defense counsel object ed, in part, because SSG SS “didn’t read [appellant] his rights, he didn’t inform him of anythi ng and, therefore, those statements should not be used against the accused at this court-martial.” The following exchange then occurred:

MJ: “What’s the good cause for not fili ng the motion to suppress before arraignment?”NORTH — ARMY 20140268

3 TDC: “Sir, we just – I got this email last night about six’o’clock last night.”

MJ: “It would’ve been a good motion before arraignment. The rule says you do it before arraignm ent. You didn’t tell me anything about this until just now, so . . .

Overrruled.”

TC: “So, he told yo u he wish he had done it worse [sic]?”

SSG SS: “Yes.”

Trial counsel relied on this statement several times during the rest of the trial, including in his cross examin ation of the defense expert witness, in his closing statement on findings, and in his sentencing argument.

In cross-examination of the psychiatrist called by ap pellant, trial counsel used

the statement to attack the no tion that appellant was acting out of fear rather than

malice. In his closin g argument, trial counsel referred to this cross- examination and

stated that:

And, Major [C], thei r own expert, said it, a normal person

in this situation wo uld not have responde d with that. And you also heard what Major C said with regard to what [appellant] said th e next morning. He said I know what

I’ve done and I wish I would have caus ed more harm, or done worse, or words to that effect. And, Major [C] said

that sounds like ve ngeance and that s ounds like anger.

Finally, in sentenci ng argument, trial counsel stated:

And the biggest problem with what occurred, Your Honor, the biggest problem wi th what he did is reflected upon the

same statement that I hit on in the closing; it’s a statement that is made the next day. It ’s not a statement of regret. It’s not a—he apologized toda y. But, after the incident, he’s not apologetic and he shows no remorse; he wished

he would have done the worse [sic].

LAW

Military Rule of Ev idence [hereinafter Mil. R. Evid.] 304(d)(2) (A) requires that “[m]otions to suppress or objections under. . . Mil. R. Ev id. 305 to statements

that have been disclosed sha ll be made by the defense prio r to submission of plea.”

Failure to move or ob ject “constitutes a waiver of the objection.” Mil. R. Evid.NORTH — ARMY 20140268

4 304(d)(2)(A). The rule further provides that “the defense may not raise the issue at a later time except as permit ted by the military judge for good cause shown.” Mil R. Evid. 304(d)(2)(A).

“We review the military judge's ev identiary decision on whether good cause

was shown for an abuse of discretion.” United States v. Jameson, 65 M.J. 160, 163 (C.A.A.F. 2007) citing United States v. Howard, 998 F.2d 42, 52 (2d Cir. 1993).

ANALYSIS

We find that unde r the facts and circumstances of this case, the military judge abused his discretion when he summarily overruled the defense counsel’s objection and admitted appellant’s statem ent to SSG SS in to evidence.

During the brief discussion on this issue, trial defense counsel told the military judge that he had only received di sclosure of appellant’s statement the night

before at 1800 hours. Without further inquiry or analys is, the military judge simply overruled the object ion because defense counsel had not file d a motion prior to arraignment.

We recognize the judge’s in terest in properly enforcing filing deadlines and the necessity of counsel to strive to adhere to those deadlines. However, the military judge also has a duty to ensure th at appellant receives a fair trial and along with that, the “opportunity to be heard in his defense.” United States v. Coffin , 25 M.J. 32, 33 (C.M .A. 1987) citing Rock v. Arkansas, 483 U.S. 44 (19 87). While Mil. R. Evid. 304(d)(2)(A) “provides for efficient administrati on of justice, it should be liberally construed in favo r of permitting an accuse d the right to be heard fully in his

defense.” Coffin , 25 M.J. at 34 (emphasi s in the original).

“Article 31(b), UCMJ, warnin gs are required when (1 ) a person subject to the UCMJ, (2) interrogates or requests any st atement, (3) from an accused or person suspected of an offense, a nd (4) the statements regard the offense of which the person questioned is accused or suspected

. ” United Stat es v. Jones , 73 M.J. 357, 361 (C.A.A.F. 2014) citing United States v. Cohen , 63 M.J. 45, 49 (C .A.A.F. 2006).

Here, three of these four prongs were already full y addressed on the record prior to the defense counsel’s objection. First, SSG SS test ified that he was currently on active duty and th erefore subject to the UCMJ. See Art. 2(a)(1), UCMJ. Second, although he wa s still collectin g information, SSG SS indicated that SPC SB told him that appellant had stabbed SPC MC , and he therefore reasonably suspected appellant of committing a crime under the UCMJ. Finally, appell ant’s statement was without question in re gard to the offense of which he was suspecte d. Thus, the only real question left for the military judge to determine was whether or not SSG SS interrogated or requested a statement from ap pellant. This inqu iry could have beenNORTH — ARMY 20140268

5 accomplished quickly with a few more que stions for SSG SS, who was on the stand

at the time.

Instead, the military judge allowed an incriminating statement into evidence simply because the de fense did not meet the deadline without any fu rther inquiry

into the reasons behind that failure or the extent to which the government may have contributed to the problem. See Jameson , 65 M.J. at 163. We find the military judge’s reflexive application of the rules and his failure to liberally construe the timing requirement of Mil. R. Evid. 304(d)(2 )(A) to be an abuse of his discretion. Coffin , 25 M.J. at 34. 3

Because the error is nonconstitutional in nature, we revi ew to determine whether the government has demonstrated that the er ror did not substantially influence the findings . Considering the factors articulated in United States v. Kerr

, 51 M.J. 401 (C.A.A.F. 1999), we conclude appellant suffered no prejudice as to findings. At the time appellant struck SP C MC, he was near th e front door to his house, SPC MC and SPC SB we re behind him, not touching him, and were allowing him to go outside to throw the piece of glass away. Wh ile it is not entirely clear how much time had elapsed between the duct- taping incident and the assault, it was

not immediate. In the time between the ev ents, appellant was al one in his room, had knocked a television over, went to the kitc hen to have a shot of alcohol with SPC MC, and had thrown a bottle against his refrigerator. Moreover, during the actual assault, appellant first struck SPC MC in the neck, causing SPC MC to turn around, holding his neck, when appella nt assaulted SPC MC again, this time causing a deep

cut in his back. A reasonab le person in these circumstan ces would not ha ve believed death or grievous bodil y harm was abou t to be inflicted on him or her warranting

such a violent act of self-def ense. R.C.M. 916( e)(1)(A). The government’s case was strong and the defe nse of self-defense weak. Though aggrav ating, the additional incriminating statement at issue did not cont ribute significantly to the question of appellant’s guilt. Therefore, we hold the error in this case was harmless as to findings. See Kerr , 51 M.J

. at 405.

3 Appellant also makes an al legation of ineffect ive assistance of counsel claiming

that his trial defense counse l was ineffective for failing to file a motion to suppress in a timely manner. Had the military ju dge simply heard coun sel’s belated motion,

he could have eliminated this claim and dealt with trial defe nse counsel’s rules

violation after trial. Coffin, 25 M.J. 32, 34 n. 3 (C.M.A. 1987); see also United

States v. Jameson , 65 M.J. 160, 166 (C.A.A.F. 2007 ) (Baker, J., concurring in part and in the result)(“Certainly, as a matter of legal policy it wo uld have been better for the military judge to close and secu re the door otherwis e left open.) Id . For the

reasons described in this opinion, appellant’s ineffe ctive assistance of counsel claim

fails on the basis of the second prong of Strickland v. Washington , 466 U.S. 668 (1984).NORTH — ARMY 20140268

6 However, in light of the damning nature of appe llant’s expressed desire to inflict greater harm on his victim and th e government’s reliance on that statement to argue for a severe sentence, we are not convinced that th e admission of the statement did not substantially influence the adjudged sentence. See generally United States v.

Sanders , 67 M.J. 344 (C.A.A.F. 2009). Applying the principles of United States v.

Sales , 22 M.J. 305, 308 (C.M .A. 1986) and the factors set forth in United States v.

Winckelmann , 73 M.J. 11, 15-16 (C.A.A.F. 201 3), we conclude that we can confidently reassess appellant’s sentence wi thout returning this case for a sentence rehearing.

We find a two month redu ction in appellant’s sent ence to confinement cures the error and eliminates any impact the erroneously admitted statement may have had on the military judge’s sentence determination.

In evaluating the Winckelmann factors, our decision does not result in a change in the penalty land scape because appellant’s maximum punishment remains unchanged as a resu lt of our action. Id. at 15-16. Because ap pellant was sentenced by a military judge as opp osed to members, we are more likely to be certain of how the military judge would ha ve sentenced appellant ha d he not considered the erroneously admitt ed statement. Id . at 16. In ad dition, this court reviews the

records of a substan tial number of courts-m artial involving aggravated assaults, and we have extensive experience with the sentences imposed for such offenses under

various circumstances. Id. at 16.

Finally, the gravamen of the offenses has not ch anged, appellant remains convicted of willfully discharging a firearm and a part icularly egregious aggravated assault, evidence of which was all still properly before th e military judge. Id. at 16. In particular, appellant inflicted several de ep cuts on SPC MC’s neck, one of which was eleven centimeters long and five cen timeters deep and loca ted only one or two

millimeters from SPC MC’s ca rotid artery. Appellant’s second hit on SPC MC caused a deep cut in his back that was eleven and a half centimeters long and two centimeters deep. Specialist MC also had other, smaller cuts, includin g one on his hand and finger which caus ed permanent limited range of motion. Th ese injuries resulted in SPC MC having to undergo surgery an d spend three days in the hospital. In the end, we are certain the military ju dge would have senten ced appellant to no less than a bad conduct discharge, confinem ent for thirteen months and reduction to the grade of E-1. We find such a se ntence is correct in law and fact.

CONCLUSION

On consideration of the entire record and the submissions by the parties, the findings of guilty are A FFIRMED. Reassessing the se ntence on the basis of the error noted, the entire record, and in accordance with the principles of United States

v. Winckelmann , 73 M.J. 11, 15-16 (C.A.A.F. 2013) and United States v. Sales , 22 M.J. 305 (C.M.A. 1986), we affirm only so much of the sentence as provides for aNORTH — ARMY 20140268

7 bad-conduct discharge, confinement for thir teen months and redu ction to the grade of E-1. All rights, pr ivileges, and property, of which appellant has been deprived by virtue of that portion of the sentence set as ide by this decision, are ordered restored. See UCMJ arts. 58a(b) , 58b(c), and 75(a).

Senior Judge LIND and Judge PENLAND concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: