ACCA affirmed the findings and sentence of Specialist Erick I. Nuno, finding that he was not deprived of his Sixth Amendment right to confront his accuser.
Nuno opinion here.
Appellant, Specialist Erick Nuno, despite being married, was involved in a volatile romantic relationship with a junior female soldier, Specialist JB, from October 2016 through April 2018. The relationship was volatile in that they engaged regularly in excessive drinking which lead to verbal arguments and physical violence on multiple occasions.
The first time Appellant physically assaulted SPC JB was in July of 2017 when Appellant punched SPC JB in the eye to prevent her from leaving a party and driving home intoxicated. SPC JB then lied to her commander about how she got the black eye and her intoxication, which would have been a violation of her substance abuse program.
The next time Appellant assaulted SPC JB was in November 2017. SPC JB was not drinking because she suspected that she may be pregnant with Appellant’s child, which she later found to be true. Appellant and SPC JB got into an argument in the kitchen which resulted in Appellant striking her in the face. One month later, in hopes of saving their relationship, SPC JB terminated her pregnancy upon the urging of the Appellant, who said, “you keep that child I will never talk to you again, you'll ruin my life, I will not help you raise this child.” SPC JB learned that appellant had been cheating on her during her pregnancy, and along with the depression that she experienced over the end of her pregnancy, it led to a break in the relationship until March 2018. In the interim, to deal with her mental health, SPC JB began huffing canned air.
Sometime around March 2017, SPC JB and the Appellant got into an argument and when Appellant asked her to leave the apartment, SPC JB opened a kitchen drawer, pulled out a gun, and pointed it at him.
On April 26, 2018, the couple were drinking alcohol at a birthday celebration and went back to their barracks for sexual intercourse. When SPC JB rejected him, he became violent and restrained her. By the time law enforcement arrived, they found SPC JB yelling for help and Appellant straddling SPC JB on the ground. Appellant disputed this and claimed that he was concerned for her safety because he had seen a gun in her car, and she had recently expressed thoughts of committing suicide. He claims that he physically restrained her to prevent her from leaving so that she would not hurt herself, and that is when the police arrived.
Appellant was charged under UCMJ Article 128 with two specifications of assault consummated by a battery. Appellant was convicted at a general court-martial.
SPC JB testified that the relationship was mutually combative and physically violent. She also admitted to her own anger issues, blackouts, and huffing the canned air. She also admitted that Appellant had told her that she had once pulled a knife on him, which she did not recall but believed was possible.
Defense was prevented from cross-examining SPC JB about whether she owned a firearm because the judge determined that it was irrelevant, since self-defense was not raised by the Appellant. Additionally, upon trying to impeach SPC JB for her character for untruthfulness, the defense was prevented from asking about SPC JB’s possible disclosure of any drug use before her time in the service, for irrelevance. When asked whether she lied on her security clearance questionnaire in 2015, SPC JB invoked her right to remain silent. Again, the judge ruled this irrelevant. After further cross-examination, SPC JB admitted to her lack of truthfulness on other occasions, and that she was at risk of being separated from the military for her own misconduct. The judge ultimately denied all requests that SPC JB’s testimony be struck from the record.
At issue in this case is whether the Appellant was offered opportunity to effectively cross-examine the victim in accordance with the Confrontation Clause of the Sixth Amendment, and whether the military judge subverted that right in refusing to strike her testimony. A military judge’s decision whether to “strike the direct examination testimony of a witness who refuses to answer certain cross-examination questions by invoking the right against self-incrimination" is reviewed for an abuse of discretion.
Appellant claimed that the military judge should have stricken SPC JB’s testimony because she refused to answer questions about submitting false information in the July 2015 Security Clearance questionnaire and she refused to answer questions regarding whether she owned a firearm. Appellant claims that this deprived him of the ability to challenge SPC JB’s credibility and deprived him of the opportunity to fully present an affirmative defense of “defense of others.”
A finding that the judge did abuse his or her discretion, unless harmless beyond a reasonable doubt, would result in a reversal of Appellant’s conviction. If the matter of the questions that the victim refuses to answer for self-incrimination are collateral, then the opposing party is not entitled to having the witness’s direct examination stricken.
ACCA held that the Appellant was given an opportunity to effectively cross-examine the SPC JB during trial, and the military judge did not subvert that right in refusing to strike her testimony based upon the two areas of cross-examination in which she invoked her privilege against self-incrimination. ACCA came to this conclusion by finding that SPC JB’s answers to the drug questions on the July 2015 security clearance questionnaire were “purely collateral.” While SPC JB’s credibility was of significant consideration in the trial, this line of questioning by the Appellant was more of an attack on SPC JB’s general credibility and was not related to the actual events at issue. The Appellant could have cross-examined and impeached her with questions more relevant to the facts of the assaults that were the core of her testimony, such as her memory of the assaults, false statements she made to others about the assaults, and any motivations she may have had to fabricate the allegations. These opportunities would have provided Appellant with the sufficient opportunity to attack SPC JB’s credibility on non-collateral matters. Therefore, the military judge was correct in his ruling.
For similar reasoning, the military judge did not abuse his discretion by not striking the direct examination testimony based on SPC JCB’s refusal to answer questions about her ownership of a firearm. On the basis of the record, ACCA determined that there was not sufficient evidence to show that SPC JB was at risk of harming herself, and therefore the defense of others affirmative defense was collateral. Because it was collateral, the military judge was well within his right to refuse to strike the testimony.
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