United States v. Luke , 63 M.J. 60 ( 2006 )

UNITED STATES, Appellee
v.
Ivor G. LUKE, Hospital Corpsman Second Class
U.S. Navy, Appellant
No. 05-0157
Crim. App. No. 200000481
United States Court of Appeals for the Armed Forces
Argued September 22, 2005, and February 7, 2006
Decided April 7, 2006
EFFRON, J., delivered the opinion of the Court, in which GIERKE,
C.J., and CRAWFORD and BAKER, JJ., joined. ERDMANN, J., filed a
dissenting opinion.
Counsel
For Appellant: Captain Peter H. Griesch, USMC (argued); Captain
James D. Valentine, USMC (on brief).
For Appellee: Major Wilbur Lee, USMC (argued); Commander
Charles N. Purnell II, JAGC, USN (on brief); Lieutenant Colonel
William K. Lietzau, USMC.
Amicus Curiae: Christopher A. Turtzo (law student)(argued);
Shaun P. Martin, Esq. (professor) (on brief) – the University of
San Diego School of Law at the September 22, 2005, oral
argument.
Military Judge: Charles A. Porter
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Luke, No. 05-0157/NA
Judge EFFRON delivered the opinion of the Court.
At a general court-martial composed of officer and enlisted
members, Appellant was convicted, contrary to his pleas, of two
specifications of indecent assault, in violation of Article 134,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2000).
He was sentenced to a bad-conduct discharge and confinement for
two years. The convening authority approved these results, and
the United States Navy-Marine Corps Court of Criminal Appeals
affirmed in an unpublished opinion. United States v. Luke, No.
NMCCA 200000481, 2004 CCA LEXIS 218, 2004 WL 2187577 (N-M. Ct.
Crim. App. Sept. 28, 2004).
On Appellant’s petition, we granted review and held oral
argument on two issues.1 Subsequently, we granted review of the
following supplemental issue:
WHETHER APPELLANT’S CONVICTION CAN BE
AFFIRMED BY THIS COURT IN LIGHT OF THE FACT
THAT EVIDENCE OF FRAUDULENT TESTING OF DNA
HAS BEEN NEWLY DISCOVERED.
1
I. WHETHER THE LOWER COURT ERRED WHEN IT UPHELD THE TRIAL
JUDGE’S EXCLUSION, DURING CROSS-EXAMINATION, OF AN ALLEGED
VICTIM’S ABORTION AFTER IT BECAME RELEVANT AND MATERIAL
REBUTTAL TO THE VICTIM’S TESTIMONY.
II. WHETHER THE LOWER COURT ERRED WHEN IT UPHELD THE
GOVERNMENT’S FAILURE TO DISCLOSE EVIDENCE THAT IT HAD
PREPARED TO USE ON RE-DIRECT EXAMINATION OF A GOVERNMENT
WITNESS.
We heard argument on these two issues on September 22, 2005, at the
University of San Diego School of Law in San Diego, California, as part of
this Court’s “Project Outreach.” See United States v. Mahoney, 58 M.J. 346,
347 n.1 (C.A.A.F. 2003).
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For the reasons set forth below, we hold that Appellant has
brought forth sufficient evidence to warrant further inquiry
under United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411(1967), as to whether a Government forensic examiner
contaminated Appellant’s DNA sample or otherwise falsified
pertinent test results. In view of our disposition on the
supplemental issue, it would be premature to address the first
two granted issues at this time.
I. FACTS
A. BACKGROUND
Appellant served as a hospital corpsman aboard the USS PORT
ROYAL. Appellant was charged with indecently assaulting a
female shipmate, Seaman Recruit N. The chain of events leading
to the charged offense began when Seaman Recruit N’s boyfriend,
Fireman A, sought medical treatment from Appellant for a stomach
pain. Appellant, in the course of examining Fireman A, noticed
a skin rash on Fireman A. During a discussion about possible
causes of the rash, Fireman A told Appellant that he was in a
sexual relationship with Seaman Recruit N.
Seaman Recruit N testified that she went to the ship’s
medical spaces later that day because Appellant told her that
she needed to be examined for a sexually transmitted disease.
According to Seaman Recruit N, Appellant directed her into a
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back room, where he had her lie on a bed. She stated that
Appellant, under the guise of performing a medical examination,
sexually assaulted her.
Appellant’s testimony provided a different version of what
happened after Fireman A revealed his relationship with Seaman
Recruit N. According to Appellant, he informed Fireman A that
he would have to report the relationship to the command.
Fireman A tried to dissuade Appellant from making a report and
then left the medical spaces. Appellant stated that Seaman
Recruit N later arrived at the medical spaces because she was
looking for Fireman A. According to Appellant, she went into
the back room of the medical spaces, and then emerged teary-eyed
and stated that she was tired of the Navy and was ready to get
out. Appellant testified that she then left the medical spaces
and that he went to sleep on the bed in the back room.
Seaman Recruit N and Fireman A both testified about the
ship’s policy prohibiting relationships with other members of
the ship’s company. Each stated that they knew at the time of
the charged incident that the relationship was in violation of
the policy.
B. DNA EVIDENCE PRESENTED AT TRIAL
In addition to the testimony of Fireman A and Seaman
Recruit N, the Government relied upon DNA evidence to convict
Appellant. Naval Criminal Investigative Service agents
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collected the bra that Seaman Recruit N wore on the day of the
alleged assault and a bed sheet from the bed where the alleged
assault took place. Both were sent to the United States Army
Criminal Investigation Laboratory (USACIL) at Fort Gillem,
Georgia, for analysis.
Mr. Phillip Mills, then a forensic chemist at USACIL, Fort
Gillem, Georgia, testified for the prosecution. Mr. Mills
explained that he examined the bed sheet and the bra for stains
that contained saliva. He stated that each contained cells from
which DNA could be obtained, so a portion of each was preserved
for another examiner who would perform DNA tests.
The forensic chemist who examined the DNA also testified
for the prosecution. She stated that the DNA on the sheet and
bra was consistent with a mixture of DNA taken from blood
samples of Appellant and Seaman Recruit N. The prosecution also
introduced an expert in statistical genetics to interpret the
DNA evidence. The expert testified regarding the likelihood
that the DNA was from Appellant and Seaman Recruit N, as
compared to unknown individuals.
C. POST-TRIAL DEVELOPMENTS
On August 25, 2005, over six years after Appellant’s court-
martial and one month prior to the oral argument on the two
issues originally granted by this Court, USACIL at Fort Gillem,
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Georgia, issued a memorandum to all staff judge advocates. The
memorandum stated in pertinent part:
2. In April 2005, an internal quality
control review detected a suspected false
entry made by a DNA examiner that made the
test invalid. The examiner was suspended
from his DNA casework on 3 May 2005. In an
inquiry initiated on 2 June 2005, the
examiner admitted the false entry.
3. In January 2004, the same examiner was
suspended from DNA casework after permitting
contamination in his testing process. After
retraining, he was returned to casework on
13 September 2004, initially working one
case at a time under supervision.
The memorandum contained an attachment that listed the cases in
which the examiner performed tests. The list included
Appellant’s case.
On October 17, 2005, USACIL at Fort Gillem, Georgia, issued
another memorandum to all staff judge advocates detailing
improper practices of the examiner. The memorandum stated, in
pertinent part:
2. In December 2003, Mr. Phillip R. Mills,
a USACIL Forensic DNA Examiner, cross-
contaminated and/or switched samples within
and between the following cases . . . .
3. Consequently, Mr. Phillip R. Mills, a
USACIL Forensic DNA Examiner, was suspended
from performing DNA case work from January
2004 through September 2004.
4. In April 2005, Mr. Phillip R. Mills, a
USACIL Forensic DNA Examiner, altered
documentary evidence in USACIL case number .
. . .
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United States v. Luke, No. 05-0157/NA
5. In April 2005, Mr. Phillip R. Mills, a
USACIL Forensic DNA Examiner, entered false
data regarding a control sample in USACIL
case number . . . .
6. Mr. Phillip R. Mills, a USACIL Forensic
DNA Examiner, was suspended from performing
forensic DNA analysis at USACIL on 3 May
2005; however, he remained an USACIL
employee.
7. Mr. Phillip R. Mills, a USACIL Forensic
DNA Examiner, admitted to making a false
data entry and creating a false document in
USACIL case number . . . in a written
statement made on 2 June 2005.
8. On 9 June 2005, Mr. Phillip R. Mills, a
USACIL Forensic DNA Examiner, wrote a
memorandum response to the technical review
findings in USACIL case number . . . ;
therein, he misrepresented he had examined
evidence when he had not.
9. Mr. Phillip R. Mills, a USACIL Forensic
DNA Examiner, in USACIL case number . . . ,
examined only a single swab which had been
submitted for evidence along with additional
swabs. On 13 April 2005, Mr. Mills
represented he had examined evidence and
found negative results. Mr. Mills had not
examined all available evidence. The
evidence in USACIL case number . . . , when
tested by another a USACIL Forensic DNA
Examiner, yielded positive DNA results.
The forensic examiner whose activities were described in this
memorandum was the same examiner who testified about the saliva
tests and presence of DNA in the bed sheet and bra for the
Government at Appellant’s court-martial.
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II. ANALYSIS
The supplemental issue asks whether Appellant’s conviction
can be affirmed in light of the newly discovered evidence
regarding DNA testing at the laboratory that tested Appellant’s
DNA, which included problems of cross-contamination,
misrepresentation, false data entries, and analytical
deficiencies. The critical question is whether the results of
trial are reliable in view of the newly discovered evidence.
See United States v. Murphy, 50 M.J. 4, 15-16 (C.A.A.F. 1998).
The defense has identified two memoranda issued by the
laboratory detailing improper practices by Mr. Mills. At trial,
Mr. Mills testified that he performed saliva tests on the bed
sheet and bra and that the evidentiary samples of DNA collected
from the items came from the stains he examined. DNA testing
involves comparing an evidentiary sample with a known sample.
Mr. Mills’ testimony revealed he had access to the evidentiary
samples tested in Appellant’s case. This access could have
provided Mr. Mills with the opportunity to engage in the
improper practices described in the USACIL memoranda, such as
cross-contamination, alteration of evidence, and entry of false
data -- matters that could have a direct bearing on the
reliability of the findings.
The Government has not challenged the defense position that
Mr. Mills had access to and participated in testing the samples
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from which DNA was extracted in Appellant’s case. The
Government contends that Appellant is not entitled to relief
because the memoranda do not conclude that Mr. Mills’ testing
was flawed in Appellant’s case -- only in subsequent, unrelated
cases.
Whether Mr. Mills engaged in the improper activities
detailed in the memoranda in Appellant’s case is a factual
question that this Court is not in a position to resolve. At
this stage, Appellant has demonstrated that there are material
questions of fact that could give rise to relief in the context
of his case. See Murphy, 50 M.J. at 16. Appellant’s showing
that Mr. Mills is known to have been involved in such behavior
and that Mr. Mills had access to the evidentiary samples tested
in Appellant’s case is sufficient to trigger an evidentiary
hearing into whether Appellant’s sample was contaminated or the
test results were otherwise falsified.
III. DECISION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is set aside. The record of trial is
returned to the Judge Advocate General of the Navy for
submission to an appropriate convening authority for a
factfinding hearing on Appellant’s claim of contamination of his
DNA sample and falsification of his test results. See DuBay, 17
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C.M.A. at 149, 37 C.M.R. at 412. In light of the potential
implications for other cases involving the same Government
examiner, we urge completion of the DuBay hearing within ninety
days of the issuance of this opinion, if practicable.
Thereafter, the record will be returned directly to this Court
for further review in accordance with Article 67, UCMJ, 10
U.S.C. § 867 (2000).
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United States v. Luke, 05-0157/NA
ERDMANN, Judge (dissenting):
The majority concludes that the post-trial materials
relating to Mr. Mills’ alleged misconduct raise material
questions of fact that could give rise to relief and that
further inquiry is warranted. As I find that the circumstances
of this case do not warrant extending the period within which to
seek a new trial on the basis of newly discovered evidence, I do
not agree that a factfinding hearing under United States v.
DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), is warranted. I
therefore respectfully dissent.
In the context of a petition for new trial under Article
73, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 873(2000), a petitioner has two years after the convening authority
takes action within which to bring a petition for new trial
based on newly discovered evidence. Since the new evidence in
Luke’s case did not come to light until almost five years and
five months after the convening authority’s action, this new
evidence does not support a petition for new trial under Article
73, UCMJ.
Luke argues that despite this statutory language, a motion
for a new trial based on newly discovered evidence may be bought
if a case is in the course of appeal, relying on United States
v. Harris, 61 M.J. 391 (C.A.A.F. 2005), and United States v.
United States v. Luke, 05-0157/NA
Murphy, 50 M.J. 4 (C.A.A.F. 1998).1 Murphy was a capital case in
which Murphy sought a new trial based on newly discovered expert
scientific evidence bearing on his mental responsibility. 50
M.J. at 13-14. Despite the fact that this evidence arose well
after the two-year time period under Article 73, UCMJ, this
court applied the Rule for Courts-Martial (R.C.M.) 1210(f)(2)
new trial analysis to his request for a new trial. Id. at 15.
We did so because it was a capital case calling for this court
to carefully scrutinize the case for “reliability of result.”
Id. at 14.2 Capital litigation is unquestionably different and
the need to assure a reliable result warrants different
treatment. See Ring v. Arizona, 536 U.S. 584, 605-06 (2002)
(“There is no doubt that ‘death is different’.”); Loving v.
United States, 62 M.J. 235, 236 (C.A.A.F. 2005); United States
v. Curtis, 32 M.J. 252, 255 (C.M.A. 1991).
Harris, on the other hand, does not support the proposition
that R.C.M. 1210(f)(2) should be applied beyond the two-year
1
Luke asserts that the test to be applied in this circumstance
is the same test as set forth in Rule of Courts-Martial
1210(f)(2) for a petition for new trial based on newly
discovered evidence under Article 73, UCMJ.
2
In addition, “mental responsibility” occupies a preferred
position in military jurisprudence. See United States v.
Massey, 27 M.J. 371, 373 (C.M.A. 1989); United States v. Jacks,
8 C.M.A. 574, 577, 25 C.M.R. 78, 81 (1958); Manual for Courts-
Martial, United States, Analysis of the Military Rules of
Evidence app. 22 at A22-7 (2005 ed.).
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United States v. Luke, 05-0157/NA
Article 73, UCMJ, period. Although dealing with evidence of
mental responsibility discovered after trial, Harris actually
filed a petition for new trial within two years of the convening
authority’s action. 60 M.J. at 394.3
I do not find that either Murphy or Harris support a broad
extension of the right to a new trial based on newly discovered
evidence simply because a case remains in appellate channels
more than two years after the convening authority’s action. Nor
does this case present the compelling circumstances that we
faced in Murphy. In this non-capital case the new evidence of
Mr. Mills’ misconduct could at most be offered under Military
Rule of Evidence 608(b) to impeach his trial testimony. This is
not evidence rising to the level of a defense as does evidence
of lack of mental responsibility. See R.C.M. 916(k).
I would hold that a DuBay hearing is not appropriate and
would proceed to consideration of the remaining issues in this
case.
3
Even though Harris did file a timely petition for new trial, I
am open to the possibility of applying the new trial analysis in
non-capital cases where the proffered new evidence goes to the
reliability of the findings of guilt rather than the credibility
of a witness.
3