United States v. Sergeant First Class ROBERT L. WORSHAM ( 2020 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
ALDYKIEWICZ, SALUSSOLIA, and WALKER
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant First Class ROBERT L. WORSHAM
United States Army, Appellant
ARMY 20180552
Headquarters, U.S. Army Cyber Center of Excellence and Fort Gordon
David H. Robertson, Military Judge
Colonel John M. McCabe, Staff Judge Advocate
For Appellant: William E. Cassara, Esquire (argued); Captain Steven J. Dray, JA;
William E. Cassara, Esquire (on brief and reply brief).
For Appellee: Captain Karey B. Marren, JA (argued); Lieutenant Colonel Wayne H.
Williams, JA; Major Craig J. Schapira, JA; Captain Karey B. Marren, JA (on brief).
4 September 2020
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
SALUSSOLIA, Judge:
Appellant asserts the military judge, sitting as a general court-martial,
abandoned his impartial judicial role when he recalled two witnesses and called an
additional witness in the midst of deliberations.' Appellant also claims his defense
counsel were ineffective by failing to object to this decision by the military judge
'The military judge convicted appellant, contrary to his pleas, of six specifications
of sexual assault upon a child in violation of Article 120, Uniform Code of Military
Justice, 10 U.S.C. § 920 (2012) [UCMJ]. The convening authority approved the
adjudged sentence of a dishonorable discharge and confinement for twelve years.
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and in failing to object to the military judge’s questioning of these witnesses. These
issues warrant discussion, but no relief.”
This case is before us for review under Article 66, UCMJ.
BACKGROUND
The offenses in this case involve appellant’s stepdaughter, NAG, and
incidents that occurred at or near Fort Gordon on various occasions from September
2008 through February of 2010, when NAG was between the ages of 10 and 12. At
the time of offenses, NAG lived with appellant, her mother, her brother, NG, and
two half-siblings who suffered from autism.
The case turned wholly on the credibility of the witnesses called by the
government and the defense, as the government presented no physical evidence
corroborating the assaults on NAG. The government called three witnesses during
its case in chief, NAG, NT, and BW; defense counsel called two witnesses, SW,
NAG’s mother, and BM, a family friend.
NAG testified the initial assault (Specification 1 of The Charge) occurred in
the living room of their home. The next two assaults (Specifications 2 and 3 of The
Charge) occurred in the dining room, after NAG asked for assistance with her
homework. The final three incidents (Specifications 4-6 of The Charge) occurred in
NAG’s bedroom. In each of these three instances, appellant entered NAG’s
? Appellant also asserts: the military judge erred in admitting uncharged misconduct
under Military Rule of Evidence [Mil. R. Evid.] 414; and, the evidence is legally and
factually insufficient to support the Charge and its Specifications. After giving full
and fair consideration of these claims, we find they lack merit.
As to the former claim, the military judge issued a written ruling explaining his
decision to admit testimony of appellant’s daughter, BW. Having reviewed the
military judge’s findings of fact and conclusions of law, we find the decision to
admit this evidence was not arbitrary, fanciful, clearly unreasonable or clearly
erroneous. See United States v. Solomon, 72 M.J. 176, 179 (C.A.A.F. 2013) (citation
omitted).
Appellant’s later claim, although styled as one of legal and factual insufficiency, is,
when read, solely one of factual sufficiency of the evidence. Having weighed the
evidence of record, accounting for the fact that we did not observe the witnesses, we
are convinced of appellant’s guilt beyond a reasonable doubt. See United States v.
Turner, 25 M.J. 324, 325 (C.M.A. 1987).
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bedroom, closed and locked the door, and proceeded to sexually assault NAG.> NAG
testified she revealed the abuse to her mother, SW, in the presence of her brother,
NG, when she was 14 years old.
NT, NAG’s friend, testified NAG revealed to her the abuse when they were in
high school.
The government closed its case with the testimony of appellant’s daughter,
BW, who provided testimony admitted under Military Rule of Evidence [Mil. R.
Evid.] 414 that appellant abused her when she was 8 years old, in a manner similar
to the abuse of NAG charged in Specifications 4-6 of the Charge.
The defense’s case consisted of two witnesses, NAG’s mother and appellant’s
spouse, SW, and a neighbor, BM. SW testified NAG was eighteen when she first
claimed appellant had sexually assaulted her. She denied NAG made an earlier
outcry about the abuse. SW and BM both testified that NAG had a poor character
for truthfulness.
Following argument by counsel, the military judge closed the court for the
day and began deliberations. The following morning, the military judge reopened
the court and informed the parties he would recall BW and NAG, and call NG, who
had observed portions of the trial but had not been previously called as a witness.
Neither the prosecution nor the defense objected.
LAW AND DISCUSSION
A. Calling Witnesses in the Middle of Deliberations
Appellant claims the military judge, in recalling NAG and BW, and calling
NG for the first time, after beginning deliberations, abandoned his neutral and
impartial role “to re-try the government’s case,” or at least such would appear to a
reasonable observer.
“When an appellant, as in this case, does not raise the issue of disqualification
until appeal, we examine the claim under the plain error standard of review.” United
States v. Martinez, 70 M.J. 154, 157 (C.A.A.F. 2011) (citing United States v. Jones,
55 M.J. 317, 320 (C.A.A.F. 2001)). “Plain error occurs when (1) there is error, (2)
3 Although we have read the record and are familiar with the details surrounding
each offense, we need not recite those details again here in order to resolve this
caSe.
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the error is plain or obvious, and (3) the error results in material prejudice.” [d.
(citing United States v. Maynard, 66 M.J. 242, 244 (C.A.A.F. 2008)).
“An accused has a constitutional right to an impartial judge.” Martinez, 70
M.J. at 157 (citing United States v. Butcher, 56 M.J. 87, 90 (C.A.A.F. 2001)) Rule
for Courts-Martial [R.C.M.] 902 recognizes two bases for disqualification of a
military judge, the first being R.C.M. 902(a) which provides that a military judge
“shall disqualify himself or herself in any proceeding in which that military judge’s
impartiality might reasonably be questioned.”
“There is a strong presumption that a military judge is impartial in the
conduct of judicial proceedings.” United States v. Foster, 64 M.J. 331, 333
(C.A.A.F. 2007) (citing United States v. Quantanilla, 56 M.J. 37, 44 (C.A.A.F.
2001)). “‘[W]hen a military judge’s impartiality is challenged on appeal, the test is
whether, taken as a whole in the context of this trial, a court-martial’s legality,
fairness, and impartiality were put into doubt’ by the military judge’s actions.”
Martinez, 70 M.J. 158-59 (quoting United States v. Burton, 52 M.J. 223, 226
(C.A.A.F. 2000)). This test is an objective one, and asks if the military judge’s
conduct “would lead a reasonable man knowing all the circumstances to the
conclusion that the judge’s impartiality might reasonably be questioned.” Jd.
(quoting United States v. Kincheloe, 14 M.J. 40, 50 (C.M.A. 1982)). The test
applies, as here, when the challenge to the military judge’s impartiality stems from
questions posed to witnesses. See United States vy. Acosta, 49 M.J. 14, 17-18
(C.A.A.F. 1998). In applying this test, we prospectively review the questioning of
the witnesses by the military judge. United States v. Dock, 40 M.J. 112, 128
(C.M.A. 1994).
As an initial matter, we find that the military judge did not err merely by
pausing his deliberations to hear additional testimony from NAG and BW, or by
calling NG.° Article 46, UCMJ, and Mil. R. Evid. 614, provide a military judge,
sitting as a court-martial, wide latitude in calling or recalling witnesses. This
includes calling a witness not called by either the prosecution or defense. See
R.C.M. 801(c). This also includes reopening the case during deliberation in order to
obtain additional evidence. See R.C.M 921(b).
* The other basis, R.C.M. 902(b) provides several specific grounds requiring
disqualification of a military judge, none of which are at issue in this case.
> Based upon the briefs and presentation at oral argument, neither the government
nor appellant dispute the military judge’s authority to interrupt his deliberations to
either recall or call these witnesses.
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The issue for appellant is the manner in which the military judge questioned
these witnesses. Appellant asserts the military judge effectively took up the mantle
of the prosecution in questioning NAG and BW, and then by calling NG to the stand.
We disagree.
“A military judge ‘can and sometimes must ask questions in order to clear up
uncertainties in the evidence or to develop facts further.’” United States v. Foster,
64 M.J. 331, 336 (C.A.A.F. 2007) (quoting United States v. Ramos, 42 M.J. 392, 396
(C.A.A.F. 1995)). Military Rule of Evidence 614 does not limit the military judge
as to the number or type of questions, nor does it restrict the military judge “from
asking questions which might adversely affect one party or another.” Acosta, 49
M.J. at 18. This case rested solely on the credibility of NAG and the other witnesses
called by the government and defense. The military judge’s questions of all three
witnesses sought to test the credibility of these witnesses.
1. NAG and BW
The responses by NAG and BW as to the appellant’s assaults largely mirrored
the testimony they provided earlier in the trial, albeit with greater detail elicited by
the military judge. We need not engage in a line-by-line comparison of the
respective testimony of these witnesses to make the observation that the thrust of the
military judge’s more detailed questioning was to test their biases and credibility.
Viewing these questions prospectively, we see no bias or slant in the manner of the
military judge’s questions or the questions themselves. As the trier of fact, the
military judge was appropriately discharging his duties in making a reasoned
determination whether or not appellant was guilty of these offenses. Given this
responsibility, when viewed objectively, a reasonable person knowing all of the
circumstances — including the ability of the military judge to recall or call witnesses
— would understand the military judge was doing just that.
An issue raised by appellant, however, warrants mention. In his briefs and
during argument, counsel for appellant asserts that the military judge elicited
“human lie detector” testimony from BW and NAG. We disagree.
On recall, the military judge engaged in a colloquy with BW concerning the
details of the sexual assault admitted under Mil. R. Evid. 414. BW testified that she
immediately reported the abuse to her mother, which then prompted a report to law
enforcement. BW testified that she later recanted her story and claimed it was a
dream because she did not want to see appellant go to jail. The allegation against
appellant was never pursued. Eventually, appellant and BW’s mother divorced. The
military judge questioned BW as to conversations she later had with her mother
about the abuse, to include revealing to her mother that the incident was in fact not a
WORSHAM—ARMY 20180552
dream. When asked by the military judge whether her mother accepted as true the
abuse allegation, BW replied “Yes.”®
NAG testified on recall concerning her attempt to tell her natural father, EG,
what appellant had done to her. This conversation occurred after NAG reported
appellant’s abuse to the Army Criminal Investigation Command and moved in with
EG. When asked by the military judge about the substance of the conversation,
NAG replied “He didn’t want to talk about it... [t]hinking about it sent him into an
anger that he was afraid he couldn’t control, that’s what he told me.”
We view neither line of questioning by the military judge as “human lie
detector” testimony. Our Superior Court has described such testimony as “an
opinion as to whether the person was truthful in making a specific statement
regarding a fact at issue in the case.” United States v. Knapp, 73 M.J. 33, 36
(C.A.A.F. 2014) (quoting United States v. Brooks, 64 M.J. 325, 328 (C.A.A.F.
2007)). “[T]estimony may still be excluded as the functional equivalent of human
lie detector testimony where ‘the substance of the testimony leads the members to
infer that the witness believes the victim is truthful or deceitful with respect to an
issue at trial.’” United States v. Lopez, 76 M.J. 151, 155 (C.A.A.F. 2017) (quoting
United States v. Martin, 75 M.J. 321, 324 (C.A.A.F. 2016)).
We do not find the military judge elicited “human lie detector” testimony
from BW or NAG. The military judge was not obtaining testimony from a witness as
to whether they believed BW’s or NAG’s allegations. Further, appellant fails to cite
to any case, nor has our research revealed any, where a witness, vouching for his or
her own credibility by testifying that others believed him or her constituted
° Appellant also takes issue with the military judge eliciting evidence of other acts in
questioning BW. Specifically, the military judge asked BW if there were any other
incidents with appellant other than that described during her initial testimony and on
recall. BW indicated appellant never touched her in the same manner, but on one
occasion in her adolescence appellant pinched her breast and told her to put ona
training bra. The military judge did not pursue this matter further and defense did
not object.
To the extent the military judge elicited uncharged misconduct, we find no
prejudice. As the military judge amply demonstrated in his written Mil. R. Evid.
414 ruling concerning BW’s assault allegations, he understood the parameters of
prior acts that could be considered in his role as the factfinder under that rule.
WORSHAM—ARMY 20180552
prohibited human lie detector testimony. Rather, the military judge, in context, was
testing the biases and credibility of these two witnesses.’
2. NG
Although NG was on both the government’s and defense’s witness list, neither
side called him to testify during its case-in-chief.® The military judge, aware that
NG was present for the proceedings and had witnessed NAG’s testimony on recall,
called NG to answer specific questions concerning NAG’s revelation about
appellant’s sexual abuse.
The military judgé posed a limited series of questions related to NG’s
knowledge of NAG’s outcry in the presence of her mother that occurred years
earlier. NG denied any knowledge of such an outcry or having discussed the
allegations with anybody. On cross-examination by defense counsel, NG claimed
NAG first revealed the alleged abuse to him when she was eighteen years old,
adding that NAG had a poor character for truthfulness.
Trial counsel then conducted an extended cross-examination of NG that
disclosed NG and his fiancé lived with appellant and relied upon appellant for room
and board. The trial counsel then cross-examined NG over a recorded telephone
conversation with NAG wherein, among other things, NG revealed the many
difficulties they were facing in the household, presumably because of the court-
martial, and possibility of the family losing everything. NG also acknowledged
telling NAG that appellant was remorseful. Following trial counsel’s examination,
the military judge asked some clarifying questions and then asked NG about the
apparent discrepancy between his earlier testimony denying he had spoken with
anybody about NAG’s claims and the recorded telephone conversation in which NG
admitted speaking to appellant about the allegations. NG, though acknowledging his
voice on the recording, claimed the recording was false.
7 Even if we did find BW and NAG provided “human lie detector” testimony, we
would test such for plain error, as defense at trial did not object. Knapp, 73 M.J. at
36 (citation omitted). Even assuming error, appellant has failed to demonstrate to us
how this testimony had an unfairly prejudicial impact on the military judge’s
deliberations. Jd. at 37 (citations omitted).
8 We ordered affidavits from appellant’s trial defense counsel to address, inter alia,
whether defense counsel included NG on their witness list and, if so, why he was not
called in the defense case-in-chief. In these affidavits, defense counsel detail the
significant risks in calling NG that weighed against calling him as a witness, some
of which materialized during the government’s cross-examination of NG.
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Again viewing the military judge’s questions prospectively, we can not see
how an objective, reasonable observer to these proceedings would find the military
judge’s questions unfair or smacked of bias. The military judge, as the fact finder,
had before him conflicting testimony between NAG and SW concerning NAG’s
outcry Over appellant’s abuse. NAG claimed NG was present when this occurred;
SW denied the event ever occurred. Calling NG was a logical move to determine
the truth. As became evident, NG had significant motives to misrepresent the facts
and came across as unbelievable. However, nothing in the record suggests the
military judge knew or could have known of such motives before calling NG to the
stand. The mere fact that NG’s testimony did not apparently work to appellant’s
favor alone is not a basis to find the military judge lacked impartiality.
In summary, an objectively reasonable observer aware of all the relevant facts
and circumstances concerning the military judge’s decision to recall NAG and BW,
and call NG, would harbor no questions about the impartiality of the military judge
or the fairness of the proceedings. Accordingly, we find no error, plain or
otherwise, in the military judge’s decision to interrupt deliberations to call these
witnesses.
3. Liljeberg Analysis
Even if we had found the military judge should have been disqualified under
R.C.M. 902(a), appellant is not entitled to relief. We come to this conclusion after
applying the three-part test set forth in Liljeberg v. Health Servs. Acquisition Corp.,
for determining whether a judgement should be vacated based upon the appearance
of partiality by the military judge: “[1] the risk of injustice to the parties in the
particular case, [2] the risk that the denial of relief will produce injustice in other
cases, and [3] the risk of undermining the public’s confidence in the judicial
process.” 486 U.S. 847, 862 (1988). Our analysis here is limited to the first and
third of these factors.”
As to the first factor, we find no merit in appellant’s claims, largely for
reasons already stated. The military judge properly exercised his discretion in
recalling NAG and BW and calling NG. What appellant would label as “human lie
detector” testimony was nothing more than the military judge’s exploration of the
witness’s bias. As for NG, the military judge’s questions were limited in scope and
intent upon exploring a key fact in the case: whether NAG made an outcry to SW in
the presence of NG. That the government conducted a withering cross-examination
of NG was neither at the encouragement of the military judge nor is there any
° Both appellant and the government agree the second factor is not at issue in this
case.
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evidence to suggest such was the intent of the military judge in calling NG asa
witness.
As for the third factor, we consider whether denying appellant relief under the
circumstances of this case will risk “undermining the public’s confidence in the
military justice system.” Martinez, 70 M.J. at 159 (quoting Liljeberg, 487 U.S. at
862). In conducting this analysis we apply “an objective standard similar to the
standard applied in the initial R.C.M. 902(a) analysis.” Jd. at 159-60. However,
“Tijn the remedy analysis, we do not limit our review to facts relevant to recusal, but
rather review the entire proceedings, to include any post-trial proceedings, the
convening authority action, the action of the Court of Criminal Appeals, or other
facts relevant to the Liljeberg test.” Id. at 160.
Here, we again do not find the military judge’s action in calling witnesses
during the deliberations, the manner in which the military judge questioned those
witnesses, or the questions themselves risks undermining the public’s confidence in
the military justice system. As noted earlier, the military judge acted within his
discretion to call these witnesses. The manner in which the military judge
questioned these witnesses, the number of questions asked, and the questions asked
did not paint the military judge as a partisan or an adjunct to the prosecution team.
Simply, in our view, the military judge was giving due diligence to his role as the
fact finder in determining the believability of witnesses in a case that rested entirely
on the very credibility of those witnesses in assessing appellant’s guilt. During oral
argument, appellant was hard pressed to identify the moment at which the military
judge crossed the line with his questioning, but instead argued a holistic review led
appellant to the inevitable conclusion of “You know it when you see it.”'° We
disagree and viewing the case in its entirety, we do not see the military judge’s
action risked undermining the confidence in the military justice process and,
accordingly, find no basis for relief under Liljeberg.
B. Ineffective Assistance of Counsel
Appellant alleges his counsel were ineffective by “[failing] to object when the
military judge re-tried the government’s case-in-chief” and by “[failing] to call GM
to testify about NAG’s door not having a lock.” We find both allegations meritless.
'0 An apparent reference to one Justice’s attempt to divine what constitutes hard core
pornography not protected from punishment under the First and Fourteenth
Amendments. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J. concurring)
(“I shall not today attempt further to define the kinds of material I understand to be
embraced within that shorthand description; and perhaps I could never succeed in
intelligibly doing so. But I know it when I see it, and the motion picture involved in
this case is not that.”)
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We review claims of ineffective of counsel de novo. United States v. Datavs,
71 M.J. 420, 424 (C.A.A.F. 2012) (citation omitted). “In assessing the effectiveness
of counsel we apply the standard set forth in Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and begin with the presumption
of competence announced in United States v. Cronic, 466 U.S. 648, 658, 104 S. Ct.
2039, 80 L. Ed. 2d 657 (1984).” United States v. Gooch, 69 M.J. 353, 361 (C.A.A.F.
2011). To establish ineffective assistance of counsel, the Strickland standard
requires appellant to demonstrate “both (1) that his counsel’s performance was
deficient, and (2) that this deficiency resulted in prejudice.” United States v. Green,
68 M.J. 360, 361 (C.A.A.F. 2010) (citing Strickland, 466 U.S. at 687). This Court
applies a three-part test to determine whether the presumption of competence has
been overcome:
1. Are the allegations true, and, if so, is there any reasonable explanation for
counsel's actions?
2. If the allegations are true, did counsel's performance fall measurably below
expected standards?
3. Is there a reasonable probability that, absent the errors, there would have been
a different outcome?
United States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991) (internal citations omitted).
There is no need for the court to address both deficiency and prejudice if an
appellant makes an insufficient showing on either one. Strickland, 466 U.S. at 697.
Regarding counsel’s failure to object when the military judge recalled NAG
and BW and called NG, we find no deficiency in performance. For the reasons noted
above, the military judge’s action in recalling and/or calling NAG, BW, and NG was
neither improper nor contrary to law or regulation. Rather, the opposite is true. The
military judge was well within his authority to call the three witnesses at issue.
Further, a review of the record reveals that the military judge maintained his
neutrality and impartiality throughout the questioning of all three witnesses.
Finding no error or impropriety by the military judge’s actions, we are at a loss to
find what objection appellant could have lodged that would have compelled the
military judge to change course or that would have prevented the recalling or calling
of three relevant witnesses.
Regarding the failure “to call GM to testify about NAG’s door not having a
lock,” assuming without deciding deficiency, appellant has failed to establish
prejudice, that is, “a reasonable probability that, absent the errors, there would have
been a different outcome.” Had GM, a friend of appellant, testified in accordance
with appellant’s proffer, that “NAG’s door [did not have] a lock,” that testimony
10
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would arguably have served two limited purposes. First, it tends to contradict a
mere ancillary fact brought out by NAG during her testimony regarding the three
incidents in her bedroom. Second, it goes to NAG’s overall credibility, something
defense counsel aggressively pursued throughout the trial. Regarding NAG’s overall
credibility, the defense elicited from three witnesses that NAG was untruthful.
NAG’s mother, SW, when asked if she believed her daughter was truthful responded,
“no.” NG, NAG’s brother, testified that “[NAG] is not a truthful person.” GM, the
witness at issue in the ineffective assistance allegation unequivocally stated during
her testimony that NAG is “highly untruthful.” Given the limited purpose and
potential impact of such testimony, had it been admitted, we are not convinced that
the result would have been any different.
CONCLUSION
The findings and the sentence are AFFIRMED.
Senior Judge ALDYKIEWICZ and Judge WALKER concur.
FOR THE COURT:
eb He
MALCOLM H. §S IRES, JR.
Clerk of Court
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