United States v. Darrius D. UPSHAW Hospital Corpsman Third Class (E-4), 201600053

• Decision Date: 04 December 2019
• Docket Number: 201600053
• Parties: UNITED STATES Appellee v. Darrius D. UPSHAW Hospital Corpsman Third Class (E-4), U.S. Navy Appellant
• Court: United States Court of Criminal Appeals, Navy-Marine Corps

UNITED STATESAppellee v. Darrius D. UPSHAW Hospital Corpsman Third Class (E-4), U.S. NavyAppellant

No. 201600053

United States Court of Criminal Appeals, Navy-Marine Corps

December 4, 2019

Argued: 2 August 2019

Appeal from the United States Navy-Marine Corps Trial Judiciary.Military Judge: Lieutenant Colonel Mark Sameit, USMC (arraignment) and Lieutenant Colonel Jeffrey Munoz, USMC (motions and trial).Sentence adjudged 28 February 2018 by a general court-martial convened at Marine Corps Base Camp Pendleton, California, consisting of officer and enlisted members.Sentence approved by the convening authority reduction to pay grade E-1, confinement for 36 months, and a dishonorable discharge.

FOR APPELLANT: LIEUTENANT CLIFTON E. MORGAN III, JAGC, USN.

FOR APPELLEE: LIEUTENANT TIMOTHY CEDER, JAGC, USN (ARGUED)CAPTAIN LUKE HUISENGA, USMC (ON BRIEF); LIEUTENANT KIMBERLY RIOS, JAGC, USN (ON BRIEF).

Before CRISFIELD, HITESMAN, and GASTON, Appellate Military Judges.

Senior Judge HITESMANdelivered the opinion of the Court, in which Chief Judge CRISFIELD and Judge GASTON joined.

OPINION

HITESMAN, Senior Judge

Appellant was convicted, contrary to his pleas, of two specifications of abusive sexual contact in violation of Article 120, Uniform Code of Military Justice(UCMJ), 10 U.S.C. § 920(2012).

Appellant raises three assignments of error (AOE): (1) the instructional error this Court found in Appellant's first trial was not harmless beyond a reasonable doubt, (2) a recused military judge played a substantive role in the case by consulting with the successor military judge on important legal issues in the case, and (3) the successor military judge abused his discretion by not recusing himself after being challenged by the Defense based on his consultation with the recused judge.

AOE 2andAOE 3 are combined and analyzed together below.We find no prejudice and affirm.

I.Factual and Procedural Background

This case is before us for the second time.At his first trial, Appellant was convicted of two specifications of abusive sexual contact and one specification of sexual assault in violation of Article 120, UCMJ, involving two separate victims.The military judge had instructed the members that they could use proof of the charged assault on Victim 1 to prove Appellant committed the assault against Victim 2, and vice versa.Between Appellant's initial trial and his first appeal, the Court of Appeals for the Armed Forces (CAAF) issued its decision in United States v. Hills, holding the use of charged offenses as propensity evidence under Military Rule of Evidence(Mil. R. Evid.) 413 undermines an accused's right to the presumption of innocence and the corresponding propensity instruction is constitutional error.75 M.J. 350, 357(C.A.A.F.2016).This Court applied that ruling to Appellant's case, upheld his conviction of the offenses against Victim 1, set aside his conviction of the offenses against Victim 2, set aside the sentence, remanded the case to the convening authority (CA), and authorized a rehearing.United States v. Upshaw, No. 201600053, 2017 CCA LEXIS 363 (N-M. Ct. Crim. App. 31 May 2017)(unpub. op.)(Upshaw I).Because Victim 2 subsequently decided not to participate in the rehearing, the CA dismissed the charges pertaining to him and ordered a sentencing rehearing for the convictions involving Victim 1.

The underlying offenses stem from two separate incidents involving two different male Marines.The circumstances surrounding the two allegations were very similar.Appellant met both victims at the same bar in Oceanside, California.Both victims were very intoxicated by the time Appellant gave them a ride home.Both victims awoke to sexual contact by Appellant, and both displayed visible shock and distress to witnesses who observed them shortly after the assaults.While giving him a ride to his barracks, Appellant unzipped Victim 1's pants and touched his groin and penis without his consent and while he was incapable of consenting due to impairment by alcohol.After giving Victim 2 a ride to Victim 2's apartment, Appellant allegedly penetrated Victim 2's anus with an object without his consent and while he was incapable of consenting due to impairment by alcohol.

During arraignment on the rehearing, before Victim 2 elected not to participate, the trial defense counsel(TDC) challenged the presiding military judge, Judge Sameit, and requested that he recuse himself.The TDC based his challenge on the "risk of undermining public confidence in the judicial process,"^[1] since Judge Sameit was the military judge in Appellant's first trial and issued the members' instruction that was found to be erroneous under Hills.Judge Sameit did not rule on the challenge against him, but stated that he would issue a written ruling if he remained assigned to the case after discussing the matter with the detailing judge.Judge Munoz was then detailed to the case and Judge Sameit did not issue a ruling.

Although the case ultimately resulted in only a resentencing hearing, the parties engaged in substantive motions practice before Victim 2 declined to participate.Prior to presiding over the motions session, Judge Munoz consulted Judge Sameit regarding the Mil. R. Evid. 413 issue.When asked during TDC voir dire of the military judge, Judge Munoz disclosed this consultation.As a result, the TDC challenged Judge Munoz and moved for him to recuse himself because he had consulted with Judge Sameit regarding the same issue that resulted in the Hills error and the remand of Appellant's case.Judge Munoz denied the recusal motion explaining, "[t]he fact that I consulted with a fellow military judge after I had formed my own opinion or conclusion . . . would not cause a reasonable member of the public to believe that I am somehow not impartial."^[2]

Additional facts necessary to resolve the AOE's raised are addressed below.

II.Discussion

A.Instructional Error

During Appellant's first appeal, this Court held that the military judge's instruction regarding the use of charged offenses as propensity evidence was erroneous and violated Appellant's constitutional right to the presumption of innocence and his "right to have all findings made clearly beyond a reasonable doubt."Upshaw I, 2017 CCA LEXIS 363 at *2, *6(quotingHills, 75 M.J. at 356)(internal quotation marks omitted).The Court then considered whether the constitutional violation prejudiced Appellant's rights or was harmless beyond a reasonable doubt.Id.(citingHills, 75 M.J. at 357).The Court reversed Appellant's conviction for sexually assaulting Victim 2 because the instructional error was not harmless beyond a reasonable doubt.Id. at *20-21.However, the Court found that the instructional error was harmless beyond a reasonable doubt regarding the offenses involving Victim 1 because the strength of evidence of Appellant's guilt was "so overwhelming."Id. at *16.Specifically, the Court found that despite Victim 1's intoxication, "his memories of the circumstances surrounding the allegation of abusive sexual contact [we]re detailed and largely intact"; there was substantial corroborating evidence supporting Victim 1's testimony; Appellant's decision to stop the car along a highly trafficked road supported Victim 1's assertion that something upsetting occurred on the ride back to his barracks; Appellant's uncorroborated claim that Victim 1 experienced "a severe episode of survivor syndrome suggests the appellant's consciousness of guilt about the need" to stop; and Victim 1's "excited utterances on the phone and via text message [we]re credible evidence of his sudden distress, the sexual nature of what prompted it, and the sense of vulnerability that prompted him to cry for help."Id. at *14-15.

Appellant now challenges this Court's holding in Upshaw I that the instructional error with regard to Victim 1 was harmless beyond a reasonable doubt.Appellant argues that this Court must set aside Appellant's conviction for the offenses involving Victim 1, relying on United States v. Williams, 77 M.J. 459(C.A.A.F.2018).Appellant avers that the facts in Williams are so analogous that we must reconsider our previous decision.We disagree.

Under the law-of-the-case doctrine, a court should not normally reconsider a decision unless it was "clearly erroneous and would work a manifest injustice."SeeUnited States v. Riley, 50 M.J. 410, 420(C.A.A.F.1999)(Crawford, J., dissenting)(quotingChristianson v. Colt Industries Operating Corp., 486 U.S. 800, 817(1988)).In other words, a court's decision on a rule of law should continue to govern the same issues in later stages of the case.Arizona v. California, 460 U.S. 605, 618(1983).While some of the factual and evidentiary circumstances in Williams are similar to Appellant's case, the issue is whether this Court based its previous ruling on factual error or an erroneous view of the law.

The CAAF decided Williams after Appellant's trial but before this Court ruled on his first appeal.In Williams, the CAAF found that the Mil. R. Evid. 413 propensity evidence instruction error was not harmless beyond a reasonable doubt and reversed the Army Court of Criminal Appeals(ACCA) decision.Williams, 77 M.J. at 464.In Hills, the CAAF reversed the lower court's decision based on an unconstitutional use of evidence of charged misconduct under Mil. R. Evid. 413 to prove that the appellant had the propensity to commit other charged misconduct.Id. at 460(citingHills, 75 M.J. at 356).This was also the basis for the reversal in Appellant's case for offenses regarding Victim 2.In Williams, the CAAF noted flaws in the ACCA's determination that there was an exception to Hills when the court could determine that an offense...