United States v. Stevenson
| Decision Date | 10 December 2009 |
| Docket Number | 200301272 |
| Parties | UNITED STATES of America v. Walter S. STEVENSON Hospital Corpsman Third Class (E-4), U.S. Navy. |
| Court | United States Court of Criminal Appeals, Navy-Marine Corps |
General Court-Martial.
Sentence Adjudged 31 Oct. 2001.
Military Judge: CDR Nels Kelstrom, JAGC, USN.
Convening Authority: Commander, Navy Personnel Command, Millington, TN.
Staff Judge Advocate's Recommendation: CDR W.C. Horrigan, JAGC USN.
For Appellant: LCDR M. Eric Eversole, JAGC, USN; Lt Heather Cassidy, JAGC, USN.
For Appellee: Lt Timothy Delgado, JAGC, USN.
Before F.D. MITCHELL, L.T. BOOKER, J.A. MAKSYM, Appellate Military Judges.
A general court-martial composed of officer and enlisted members convicted the appellant, contrary to his pleas, of rape, in violation of Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920. The appellant was sentenced to confinement for 36 months and a dishonorable discharge. The convening authority approved the sentence as adjudged.
This case is before us for a third time. A detailed procedural history of the case is provided in Part I of this opinion. In its current posture, the case is on remand from the Court of Appeals of the Armed Forces (CAAF) for our consideration of two related questions: "first, to determine whether the warrant was derivative from a source of information independent from the seizure and search of Appellant's blood at the [Veteran's Administration] hospital; and second, to consider whether the warrant was valid in light of Appellant's argument that statements and omissions to the magistrate were not made in good faith." United States v. Stevenson, 66 M .J. 15, 20 (C.A.A.F.2008) (Stevenson IV).
After considering the questions in inverse order, we hold that omissions from the search warrant affidavit were made with reckless disregard for the truth and that if the omitted information had been included the affidavit would not have established probable cause. Furthermore, we hold that the search warrant was not derivative from a source of information independent from the prior illegal search and seizure. Accordingly, in our decretal paragraph we set aside both the findings and the sentence, with a rehearing authorized. Arts. 59(a) and 66(c), UCMJ.
In the early morning hours of 23 November 1992, K, the 25-year-old wife of a deployed Navy Sailor, awoke in her dark Navy housing unit to a male intruder holding a knife against her back. Appellate Exhibit LXVIII, Exhibit C, Naval Criminal Investigative Service[1] (NCIS) Results of Interview (ROI) of 23 Nov 1992 at 1. The man told K that he had a knife, instructed her to be quiet and, after asking her a few questions, lifted her nightshirt over her head, obstructing her vision. Id; AE LXIX, NCIS ROI of 2 Dec 1992 at 2. The intruder then began licking her back, removed her underwear, and rubbed his genitalia over her back and buttocks. AE LXVIII, Ex. C, at 1-2.
Eventually the assailant turned K over onto her back and ordered her not to look at him. Id. at 2. At this point, in addition to her nightshirt, her head was covered by blankets and a pillow. AE LXIX, NCIS ROI of 2 Dec 1992 at 2. He then began licking the front of her body and performed oral sex on her. AE LXVIII, Ex. C, at 1-2. After several unsuccessful attempts to achieve an erection, the assailant finally penetrated K's vagina with his penis and began raping her. Id. at 2. When the intruder finished raping K, he bound her feet and hands together and left the house. Id. The attack lasted approximately 20 minutes. Id. After the assailant left, K was able to untie herself and went to a neighbor's residence for help. Id. She then sought medical treatment at Tripler Army Medical Center and reported the sexual assault to authorities. Id. at 1.
That same day, Special Agent (SA) R. Jewel Seawood from the Hawaii office of NCIS interviewed K at the hospital. Id. Asked by SA Seawood to describe her attacker, K explained that she was unable to obtain a good look at her assailant because her face was covered. Id. at 2. Based upon the intruder's voice characteristics, however, K deduced that he was a black male. Id. at 3. She also estimated that her assailant was around six feet tall and weighed approximately 230 pounds based upon the way he felt on top of her. Id.
During a series of interviews over the next two months, law enforcement officials asked K to provide them with more details about her attacker so as to identify him. Many of these questions focused on the intruder's clothing.
K's answers to the questions about her assailant's clothing reflect the extreme limitations placed on her ability to perceive her surroundings, most notably her attacker, amidst the darkness, confusion, and violence that accompanied this sexual assault. During her initial interview with SA Seawood, K stated that her assailant wore dark suede gloves. AE LXVIII, Ex. C at 2. She also stated that she heard her attacker fumbling around with something that sounded like scuba head cover during the attack, but at that time provided no other details about his clothing. Id.
On 2 December 1992, NCIS SA Keith Thomas conducted a second interview of K. AE LXIX, NCIS ROI of 2 Dec 92 at 1. During this second interview, SA Thomas asked K whether she recalled feeling any type of material on the assailant's legs during the attack. She responded that she felt "bare skin from [the] assailant's legs and thought he may have been wearing shorts." Id. at 2.
The Federal Bureau of Investigation (FBI), acting in response to an NCIS request for assistance in profiling K's attacker, interviewed K on 8 January 1993. AE LXIX, FBI ROI of 8 Jan 93[2] at 1. K provided previously undisclosed details to FBI SA Mary J. Counts about her assailant's state of dress during the attack. K told SA Counts that she did not hear the assailant disrobe during the attack and heard Id. at 4. K also stated that she heard her attacker's bare feet hitting the floor when he left her home. Id. at 6.
K also told SA Counts that she was able to "catch a glance" of her attacker when he rolled her over prior to penetrating her. Id. at 5. At that time, she saw that her attacker "wore very dark clothes." Id. K also described smelling and hearing a "wet suit material" similar to Gore-Tex during the attack. Id. at 6. K also told SA Counts that "[b]y his voice, [she] guessed [her assailant] was a black male, in his thirties." Id. at 4.
When NCIS agents conducted their crime scene investigation at K's residence, they discovered that the assailant had gained entry to the residence by cutting his way through the screen of an open window. AE LXXVI, Ex. A, "Search Warrant Affidavit" at 3. Agents also seized physical evidence from K's residence and sent these materials, along with K's rape kit, to the United States Army Criminal Investigations Laboratory (USACIL) for DNA testing. AE CIV, Essential Findings of Fact on Motion to Suppress at 1. Forensic analysts tested the crime scene evidence and K's rape kit and discovered DNA remnants from three individuals: K, her husband, and an unidentified third person. AE LXXVI, Ex. A at 3. Investigators concluded that the unidentified source was likely the assailant. Id.
NCIS interviewed K's neighbors to determine if they had any relevant information about the assault. One neighbor, J.P., told investigators that while jogging three days prior to the rape, at approximately 2200, he saw a bald, heavy set, naked black male, approximately six feet tall and in his late thirties or early forties, running along a path behind several Navy housing units. AE LXXVI, Ex. A at 3-4. The man startled J.P., who halted in his tracks. Id. at 4. When the naked male saw J.P., he stopped, stood still, and attempted to cover his genitals. Id. NCIS identified the spot where J.P. saw the naked male and determined that it was 50 feet from the southwest corner of K's residence. Id.
NCIS continued to investigate the case for nearly two years, but was unable to identify K's attacker. AE CIV at 1. In 1994, NCIS closed the case in accordance with local NCIS office policy. Id. As part of their close-out, NCIS Hawaii evidence custodians destroyed most of the physical evidence gathered during the investigation, including K's rape kit and all accompanying chain of custody documents. AE CIII, Essential Findings of Fact on Defense Motion to Dismiss Due to Pre-Preferral Delay, at 2. However, USACIL still had DNA samples from the rape kit and other physical evidence. Id.
At the time NCIS closed the case, the appellant was one of a number of persons of interest, but was never ruled in or out as a suspect. Id. at 2. The appellant was placed on the Temporary Disability Retired List (TDRL) in July 1994 and returned to the continental United States. Id. at 2; AE CIV at 1.
In 1997, NCIS cold case agent Bruce Warshawsky reopened the case and began reviewing the circumstances surrounding K's sexual assault. AE CIV at 1. SA Warshawsky focused his attention on a Department of the Navy incident report from June 1992 which identified the appellant as a suspect in a "Peeping Tom" incident in the same Navy housing area as K's residence. Id.
The report related the events of 8 June 1992, five months prior to the attack. AE LXVIII, Ex. A. On that day, at around 0515 A.B. observed her neighbor, later identified as the appellant, completely naked, staring at her through her house window. Id. When the individual realized that he had been seen by A.B., he ran away. Id. Police arrested ...
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