## UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before

LIND

, KRAUSS , and PENLAND Appellate Military Judges

AT

, Petitioner

v. Colonel JEFF E R Y D. LIPPERT, U.S. Army, Military Judge

, Respondent

and Staff Sergeant ANTHONY POWELL

U.S. Army, Real Party in Inter est

ARMY MISC 20150387

11 June 201 5

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SUMMARY DISPOSITION AND ACTION ON PETITION FOR

EXTRAORDINARY RELIEF IN THE NATURE OF A WRIT OF MANDAMUS

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Per Curiam:

The real party in interest is charged with two specifications of abusive sexual contact, one specification of sodomy, and three specifications of assault

consummat ed by a battery in violation of Articles 120, 125, and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 920, 925, 928 (2012 & Supp. I 2014).

Petitioner, through special victim s’ counsel, seeks extraordinary relief in the

nature of a writ of mandamus va cating the military judge’s order that petitioner’s confidential records of communication with a victim advocate be produced for in

camera review pursuant to Military Rule of Evidence [hereinafter Mil. R. Evid. ] 514

. Petitioner also requests this court gr ant her motion for oral argument on this issue

and stay the court

- martial proceedings pending our decision on the matter. We conclude that issuance of the requested writ is inappropriate and unnecessary under the circumstances and, therefore, we need not grant oral argument or issue a stay.

Petitioner is , of course, correct that communications by a victim to a victim advocate, acting in that capacity, are confidential if the communications were not intended to be disclosed to a third person. Mil. R. Evi d. 514(b)(3). She here complains that the judge erred by declaring her communications to the victim advocate as not confidential because she expressed her intent to make an unrestrictedPOWELL

— ARMY MISC 20150387

2

report of sexual assault. While review of Army Regulation 600

- 20 on the subject of unrestricted reporting suggests that the details of the reported assault communicated to a victim advocate in a case of an unrestricted report would not be privileged under

Mil. R. Evid. 514, the evidence in this case adequately establishes that petitioner’s intent to disclose was limited to the mere allegation s that a sexual assault was perpetrated and her identity as victim. However one might interpret the pertinent regulations

, it is the victim who defines the scope of information to be d isclosed to third persons under Mil. R. Evid. 514 . Therefore, anything in the judge’s order that might be interpreted otherwise would be incorrect. 1

Petitioner further complains that the judge erred by failing to enforce the threshold requirements for th e production of records for the purpose of in camera

review under Mil. R. Evid. 513 to this situation under Mil. R. Evid. 514. See United

States v. Klemick , 65 M.J. 576, 580 (N

. M. Ct. Crim. App. 2006)

. However, whether

or not the Klemick threshold requi rements for Mil. R. Evid. 513 apply to matters

under Mil. R. Evid. 514, the accused here adequately demonstrated a reasonable likelihood that petitioner’s communications to the victim advocate about the very allegations that serve as the basis for the char ges against him include evidence

admissible under Mil. R. Evid. 514(d)(6) that may not otherwise be discovered. 2

See i d. (“This standard is not high, because we know that the moving party will often be unable to determine the specific information contain ed in [the requested] records.”)

. Under these circumstances, and in light of the lesser burden of production in any such matter, we find the judge did not abuse his discretion by ordering the production of the records in question for in camera review in

a ccordance with Mil. R. Evid. 514( d) (6) and (e). 3

1 The judge’s rulings are ultimately confusing in that he seems to declare all of the Sexual Harassment/Assault Response and Prevention (SHARP) records to be non

- confidential and unprotected by Mil. R. Ev id. 514 yet, nevertheless, orders their in

camera review pursuant to Mil. R. Evid. 514.

2 We reject petitioner’s arguments that the requested information cannot be constitutionally required as a matter of law at this stage of the proceedings. See Mil. R. Evid. 514(d)(6). For example, the requirement that Brady v. Maryland , 373 U.S. 83 (1963), material be disclosed is certainly applicable. See United States v.

Williams , 50 M.J. 436, 440

- 41 (C.A.A.F. 1999).

3 The rule provides that the military judge m ay examine the evidence or a proffer thereof in camera, if such examination is necessary to rule on the motion to compel discovery of the records. Mil. R. Evid. 514(e)(3).POWELL

— ARMY MISC 20150387

3 CONCLUSION

T he Petition for Extraordinary Relief in the Nature of a Writ of Mandamus

, the Motion for Oral A rgument, and the Application for a Stay of the P roceedings are

DENIED.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR. FOR THE COURT: