United States v. Specialist COREY W. NORTH ( 2015 )

                                     LIND, 1 KRAUSS, 2 and PENLAND
                                        Appellate Military Judges
                                     UNITED STATES, Appellee
                                    Specialist COREY 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. Seitsinger, Staff Judge Advocate
    For Appellant: Lieutenant Colonel Jason J. Elmore, JA; Major Yolanda McCray
    Jones, JA.
    For Appellee: Major A.G. Courie III.
                                               27 July 2015
                                        MEMORANDUM OPINION
         This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
    KRAUSS, Judge:
           A military judge sitting as a general court-martial convicted appellant,
    contrary to his pleas, of aggravated assault with a dangerous weapon and willful
    discharge of a firearm in violation of Articles 128 and 134, Uniform Code of
    Military Justice, 10 U.S.C. §§ 928 and 934 (2012) [hereinafter 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 authority approved only
    so much of the sentence as provided for a bad-conduct discharge, 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.
        Senior Judge LIND took final action in this case prior to her retirement.
        Judge KRAUSS took final action in this case prior to his retirement.
    NORTH — ARMY 20140268
           This case is before the court for review under Article 66, UCMJ. Appellant
    has submitted the case on its merits, but personally raises several additional matters
    pursuant to United States v. Grostefon, 
    12 M.J. 431
     (C.M.A. 1982), one of which
    merits discussion and relief.
           On the evening of 21 July 2013, at appellant’s home, appellant sliced or
    stabbed Specialist (SPC) MC with a large piece of glass, causing deep cuts to SPC
    MC’s neck and back. Appellant claimed he acted in self-defense because prior to
    the assault, SPC MC and SPC SB restrained appellant’s arms and 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, appellant’s platoon sergeant, arrived 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 saw appellant standing
    outside wearing only a pair of shorts, no shirt or shoes. Appellant was angry, upset,
    and according to SSG S, “still drunk or hungover.” Staff Sergeant SS calmed
    appellant down and called the unit first sergeant to inform him that he had located
          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 defense 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 stated: “Sir, other than the
    previously mentioned multiplicity motion, the defense has no further motions.”
    Trial immediately ensued.
           The government called SSG SS and elicited appellant’s statement that “he had
    wished he’d done it worse.” Defense counsel objected, in part, because SSG SS
    “didn’t read [appellant] his rights, he didn’t inform him of anything 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 filing the motion to
                 suppress before arraignment?”
    NORTH — ARMY 20140268
                 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 arraignment. You didn’t
                 tell me anything about this until just now, so . . .
                 TC: “So, he told you 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 examination of the defense expert witness, in his closing
    statement on findings, and in his sentencing argument.
           In cross-examination of the psychiatrist called by appellant, trial counsel used
    the statement to attack the notion that appellant was acting out of fear rather than
    malice. In his closing argument, trial counsel referred to this cross-examination and
    stated that:
                 And, Major [C], their own expert, said it, a normal person
                 in this situation would not have responded with that. And
                 you also heard what Major C said with regard to what
                 [appellant] said the next morning. He said I know what
                 I’ve done and I wish I would have caused more harm, or
                 done worse, or words to that effect. And, Major [C] said
                 that sounds like vengeance and that sounds like anger.
    Finally, in sentencing argument, trial counsel stated:
                 And the biggest problem with what occurred, Your Honor,
                 the biggest problem with 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 today. But, after the incident,
                 he’s not apologetic and he shows no remorse; he wished
                 he would have done the worse [sic].
           Military Rule of Evidence [hereinafter Mil. R. Evid.] 304(d)(2)(A) requires
    that “[m]otions to suppress or objections under. . . Mil. R. Evid. 305 to statements
    that have been disclosed shall be made by the defense prior to submission of plea.”
    Failure to move or object “constitutes a waiver of the objection.” Mil. R. Evid.
    NORTH — ARMY 20140268
    304(d)(2)(A). The rule further provides that “the defense may not raise the issue at a
    later time except as permitted by the military judge for good cause shown.” Mil R.
    Evid. 304(d)(2)(A).
          “We review the military judge's evidentiary 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).
          We find that under 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 statement to SSG SS into evidence.
           During the brief discussion on this issue, trial defense counsel told the
    military judge that he had only received disclosure of appellant’s statement the night
    before at 1800 hours. Without further inquiry or analysis, the military judge simply
    overruled the objection because defense counsel had not filed a motion prior to
           We recognize the judge’s interest 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 that 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
     (1987). While Mil.
    R. Evid. 304(d)(2)(A) “provides for efficient administration of justice, it should be
    liberally construed in favor of permitting an accused the right to be heard fully in his
    defense.” Coffin, 25 M.J. at 34 (emphasis in the original).
          “Article 31(b), UCMJ, warnings are required when (1) a person subject to the
    UCMJ, (2) interrogates or requests any statement, (3) from an accused or person
    suspected of an offense, and (4) the statements regard the offense of which the
    person questioned is accused or suspected.” United States 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 fully addressed on the record
    prior to the defense counsel’s objection. First, SSG SS testified that he was
    currently on active duty and therefore subject to the UCMJ. See Art. 2(a)(1), UCMJ.
    Second, although he was still collecting 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, appellant’s statement was
    without question in regard to the offense of which he was suspected. Thus, the only
    real question left for the military judge to determine was whether or not SSG SS
    interrogated or requested a statement from appellant. This inquiry could have been
    NORTH — ARMY 20140268
    accomplished quickly with a few more questions for SSG SS, who was on the stand
    at the time.
           Instead, the military judge allowed an incriminating statement into evidence
    simply because the defense did not meet the deadline without any further 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 review to determine
    whether the government has demonstrated that the error 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 SPC MC, he was near the front door to his
    house, SPC MC and SPC SB were behind him, not touching him, and were allowing
    him to go outside to throw the piece of glass away. While 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 events, appellant was alone in his room, had
    knocked a television over, went to the kitchen 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 appellant assaulted SPC MC again, this time causing a deep
    cut in his back. A reasonable person in these circumstances would not have believed
    death or grievous bodily harm was about to be inflicted on him or her warranting
    such a violent act of self-defense. R.C.M. 916(e)(1)(A). The government’s case was
    strong and the defense of self-defense weak. Though aggravating, the additional
    incriminating statement at issue did not contribute 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.
      Appellant also makes an allegation of ineffective assistance of counsel claiming
    that his trial defense counsel was ineffective for failing to file a motion to suppress
    in a timely manner. Had the military judge simply heard counsel’s belated motion,
    he could have eliminated this claim and dealt with trial defense 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 would have been better
    for the military judge to close and secure the door otherwise left open.) Id. For the
    reasons described in this opinion, appellant’s ineffective assistance of counsel claim
    fails on the basis of the second prong of Strickland v. Washington, 
    466 U.S. 668
    NORTH — ARMY 20140268
            However, in light of the damning nature of appellant’s expressed desire to
    inflict greater harm on his victim and the government’s reliance on that statement to
    argue for a severe sentence, we are not convinced that the admission of the statement
    did not substantially influence the adjudged sentence. See generally United States v.
    67 M.J. 344
     (C.A.A.F. 2009). Applying the principles of United States v.
    22 M.J. 305
    , 308 (C.M.A. 1986) and the factors set forth in United States v.
    73 M.J. 11
    , 15-16 (C.A.A.F. 2013), we conclude that we can
    confidently reassess appellant’s sentence without returning this case for a sentence
           We find a two month reduction in appellant’s sentence 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 landscape because appellant’s maximum punishment remains
    unchanged as a result of our action. Id. at 15-16. Because appellant was sentenced
    by a military judge as opposed to members, we are more likely to be certain of how
    the military judge would have sentenced appellant had he not considered the
    erroneously admitted statement. Id. at 16. In addition, this court reviews the
    records of a substantial number of courts-martial 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 changed, appellant remains
    convicted of willfully discharging a firearm and a particularly egregious aggravated
    assault, evidence of which was all still properly before the military judge. Id. at 16.
    In particular, appellant inflicted several deep cuts on SPC MC’s neck, one of which
    was eleven centimeters long and five centimeters deep and located only one or two
    millimeters from SPC MC’s carotid 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, including one on his
    hand and finger which caused permanent limited range of motion. These injuries
    resulted in SPC MC having to undergo surgery and spend three days in the hospital.
    In the end, we are certain the military judge would have sentenced appellant to no
    less than a bad conduct discharge, confinement for thirteen months and reduction to
    the grade of E-1. We find such a sentence is correct in law and fact.
           On consideration of the entire record and the submissions by the parties, the
    findings of guilty are AFFIRMED. Reassessing the sentence 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 a
    NORTH — ARMY 20140268
    bad-conduct discharge, confinement for thirteen months and reduction to the grade
    of E-1. All rights, privileges, and property, of which appellant has been deprived by
    virtue of that portion of the sentence set aside by this decision, are ordered restored.
    See UCMJ arts. 58a(b), 58b(c), and 75(a).
          Senior Judge LIND and Judge PENLAND concur.
                                           FOR  THECOURT:
                                            MALCOLMH.   H.SQUIRES,
                                           Clerk of Court
                                            Clerk of Court

Document Info

DocketNumber: ARMY 20140268

Filed Date: 7/27/2015

Precedential Status: Non-Precedential

Modified Date: 7/28/2015