United States v. Howell

• Court: United States Court of Criminal Appeals, Navy-Marine Corps
• Writing for the Court: Crisfield, Judge.
• Decision Date: 12 June 2019
• Docket Number: 201200264
• Citation: United States v. Howell, 201200264 (N-M. Ct. Crim. App. Jun 12, 2019)
• Parties: UNITED STATES Appellee v. Stephen P. HOWELL, Staff Sergeant (E-6), U.S. Marine Corps Appellant

UNITED STATES Appellee v. Stephen P. HOWELL, Staff Sergeant (E-6), U.S. Marine Corps Appellant

No. 201200264

United States Court of Criminal Appeals, Navy-Marine Corps

June 12, 2019

This opinion does not serve as binding precedent, but may be cited as persuasive authority under NMCCA Rule of Practice and Procedure 30.2.

Appeal from the United States Navy-Marine Corps Trial Judiciary upon further review. Military Judge: Lieutenant Colonel David M Jones, USMC. Sentence adjudged 29 April 2015 by a general court-martial convened at Marine Corps Recruiting Station Parris Island, South Carolina, consisting of officer and enlisted members. Sentence approved by the convening authority: Reduction to E-1, forfeiture of all pay and allowances, confinement for nine years, and a dishonorable discharge.

For Appellant: Captain Thomas R. Fricton, USMC.

For Appellee: Captain Brian L. Farrell, USMC; Lieutenant Kimberly Rios, JAGC, USN.

Before WOODARD, FULTON, and CRISFIELD, Appellate Military Judges.

Crisfield, Judge.

A general court-martial panel convicted the appellant, contrary to his pleas, of one specification of violating the Joint Ethics Regulation, a lawful general regulation; one specification of abusive sexual contact by touching the body of the victim, D.S., while placing her in fear of physical injury other than death or grievous bodily harm; one specification of wrongful sexual contact by touching the body of D.S. without legal justification or lawful authorization and without her permission;^[1] and one specification of adultery, in violation of Articles 92, 120, and 134, Uniform Code of Military Justice (UCMJ).^[2]

The appellant was first tried on these charges in 2012 and convicted. Due to our determination that unlawful command influence tainted his court-martial, however, we set aside the findings and sentence and authorized a rehearing. United States v. Howell, No. 201200264, 2014 CCA LEXIS 321 *38 (N-M. Ct. Crim. App. 2014). The appellant was retried and convicted, and this appeal ensued.

The appellant asserts thirteen assignments of error (AOEs): (1) the military judge erred by admitting testimony regarding the appellant's risk of recidivism; (2) the military judge abused his discretion by denying the defense motion for a mistrial; (3) the military judge committed plain error by admitting presentencing testimony recommending three to five years of confinement; (4) the trial counsel's sentencing argument was improper; (5) trial defense counsel was ineffective for failing to interview the government's expert witness before trial or take a continuance to prepare for his cross-examination; (6) the military judge abused his discretion by allowing the victim's testimony to be improperly bolstered; (7) the military judge abused his discre- tion when he refused to admit defense exhibits summarizing the victim's text messages; (8) the military judge abused his discretion by denying the appellant's request to admit evidence of the victim's knowledge of her husband's infidelity; (9) there was undue post-trial delay which violated United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006); (10) the abusive sexual contact and wrongful sexual contact convictions are factually and legally insufficient; (11) the sentence was inappropriately severe (12) trial defense counsel rendered ineffective assistance of counsel by conceding the appropriateness of a punitive discharge; and (13) there was cumulative error requiring us to set aside Charge II and the sentence.

We find no merit in any of the AOEs and affirm the findings and sentence.

I. Background

The appellant was a Marine Corps recruiter in Lexington, Kentucky. He met the victim, D.S., when D.S.'s son became a Marine recruit. The victim was a police officer in Lexington. She went to the appellant's office and met him for the first time in November 2010 to sign enlistment papers for her son, who was seventeen. Soon thereafter, the appellant began sending D.S. anonymous flirtatious text messages. Between 15 December 2010 and 22 February 2011, the appellant used his government cell phone to send those text messages. In February 2011, shortly after D.S. separated from her husband and moved into a new house by herself, the appellant identified himself in a text as the person sending the flirtatious texts. D.S. informed the appellant that she had moved from her old address and the appellant asked for her new address, which she sent him. The appellant asked D.S. to meet with him, but D.S. would not.

On 22 February 2011, the appellant sent a text message to D.S. from a strip club expressing his sexual interest in her and proposing that he come over to her house so they could have sex. D.S. declined the appellant's proposal but offered to drive him from the strip club to his home in her police patrol car so he would not have to drive after drinking. The appellant refused her counter-proposal and continued to propose that he come to her house. She in turn continued to decline his offer. At about 0400, after the appellant left the strip club, he contacted D.S. while driving down her street. The appellant asked which house D.S. lived in and D.S. gave him her address because, according to her, she did not want to be responsible for the appellant having an accident. At trial, the victim indicated that her goal was to get him off the road, and not to have a sexual encounter with him.

The appellant turned into the victim's driveway and parked behind her police car. He then went to the victim's front door. The victim opened the door and the appellant immediately and forcefully hugged her and kissed her. He picked her up, carried her to her bedroom, took off her clothes, and began touching her genitalia and inserting his fingers and penis in her vagina, mouth, and anus. The appellant also hit the victim on her buttocks and thighs, leaving bruises. D.S. did not consent to any of these activities. She repeatedly told the appellant to stop, but he continued touching her. At some point, D.S. said she was in pain and asked if she could get something to provide lubrication for sexual intercourse. The appellant agreed. D.S. went alone to her kitchen while the appellant remained in the bedroom. She retrieved cooking oil to use for sexual lubrication. She did not try to escape from the house, call the police, or get her police pistol during this brief reprieve. She returned to the bedroom and spread vegetable oil over the appellant's penis and her vagina. The sexual activity continued. At 0730 the appellant asked D.S. what time it was. She informed him of the time and the appellant said he had to go to work. He took a shower in D.S.'s bathroom and then departed.

Later that morning D.S. deleted all her text messages with the appellant and others, including her patrol partner from the Lexington police force, Officer Hart. She then called Officer Hart. He came to her house and she showed him some of her bruising, but denied that she had been raped. Officer Hart advised her to go to the doctor and get a sexual assault examination. D.S. went to see her gynecologist the next day, 23 February 2011. Her gynecologist advised her to see a sexual assault nurse for a sexual assault nurse exam (SANE), which she did later that evening.

Officer Hart alerted law enforcement to the alleged assault and Naval Criminal Investigative Service (NCIS) opened an investigation on 24 February 2011. D.S. sent her cell phone to NCIS for their forensic examination, but NCIS was unable to retrieve the text messages between the appellant and the victim that D.S. had deleted. NCIS was able to recover some of the text messages between Officer Hart and D.S., even though D.S. also deleted those messages following the sexual assault. D.S. made a sworn statement to NCIS on 24 February 2011.

Additional facts necessary to resolve the AOEs are recited below.

II. Discussion

A. Expert Testimony on the Appellant's Risk of Recidivism

The prosecution called a military forensic psychiatrist, Captain Simmer, USN, to testify in the pre-sentencing hearing about the victim's post-traumatic stress disorder (PTSD) and the appellant's risk of recidivism. The trial counsel had notified the defense team that Captain Simmer would provide testimony regarding PTSD, but not that he would testify about recidi- vism. When the trial counsel started asking questions about recidivism, the defense counsel objected, citing a lack of notice and preparation for that part of the witness' testimony. The military judge asked the defense, "Are we going to talk about Daubert?" The trial defense counsel's response clearly indicated that his objection related solely to the lack of notice and discovery.

Recognizing the legitimacy of the defense's discovery concern, the military judge allowed the defense to voir dire Captain Simmer outside the presence of the members to preview his testimony. The government intended to introduce Captain Simmer's "Static-99R" analysis as a basis for his opinion on risk of recidivism. Static-99R is an analytical tool designed to measure the risk of recidivism for sexual crimes. The military judge prohibited the government from asking Captain Simmer any questions on direct examination regarding the risk of recidivism until Captain Simmer provided his Static-99R analysis to the defense team and the defense had time to prepare cross-examination. The military judge also ordered that no questions about recidivism would be asked until the next day in order to give the defense time to prepare.

After a short break during which they reviewed Captain Simmer's expected testimony, however, the trial defense counsel informed the military judge that the defense preferred to proceed immediately with Captain Simmer's testimony on risk of...