Tomorrow, CAAF will hear oral arguments in United States v. Norwood. Appellant’s case is based on two assignments of error: (1) whether the military judge erred in admitting, over defense objection, the entire video-recorded interview of the complaining witness under MRE 801(d)(1)(b)(ii) as a prior consistent statement, and (2) whether the trial counsel’s arguments repeatedly overstepped the bounds of propriety and fairness allowing such misconduct to prejudice MMN1 Norwood.
Norwood briefs here.
A panel of officers sitting as a general court-martial convicted Machinist’s Mate (Nuclear) First Class Petty Officer (MMN1) Matthew Norwood, contrary to his plea, of one specification of sexual abuse of a child in violation of Article 120b, UCMJ. The panel sentenced MMN1 Norwood to eighteen months confinement, reduction to E-1, and a dishonorable discharge. The Convening Authority approved the sentence as adjudged, and except for the punitive discharge, ordered the sentence executed.
In December 2015, ENand her younger brother, RJ, visited Appellant, their uncle, in Honolulu, Hawaii. At the time, EN was fifteen years old and her brother was twelve. On December 30, 2015, EN and Appellant were watching a movie while lying in the couch. RJ was in Appellant's nearby bedroom playing video games on Appellant's computer. EN indicated her back was sore and Appellant offered to give her a back massage. EN was wearing a bra under a tank top, which Appellant recommended she take off. In addition to rubbing her back, the massage included the appellant putting his hands under the waistband of her shorts and underwear where he touched the top of her pubic hair area above her vagina. He then worked one hand up under EN's shirt and massaged her right breast while his other hand rubbed the top of her thigh and moved up towards her private areas. EN pushed the appellant's hand away when it got about halfway up her shorts as it moved towards her vagina. Appellant then pulled EN onto his lap where EN could feel his semi-erect penis with her buttocks. Appellant asked EN about her sexual experience. Thereafter, Appellant pushed EN off of him. EN then changed into her pajamas and lay down on the couch with the Appellant and RJ joined them to watch another movie.
EN disclosed the abuse to her friend, MP, over the phone about a month and a half later. Subsequently, EN told her mother and stepfather, who also informed the police. Several days later, during a videotaped forensic interview, EN again described what had happened with the appellant.
Within two weeks of the abuse, the appellant called his brother, the father of EN and RJ. He told him that he had done something terrible and he would kill or disown him if he knew. The appellant did not disclose what he had done to deserve such treatment, but he denied that it had anything to do with EN. Approximately a year before trial, RJ moved in with his father and was never interviewed by law enforcement.
N-M Court of Criminal Appeals Decision
The military judge relied on Mil. R. Evid. 801(d)(1)(B)(ii) to admit the videotaped forensic interview of EN as a prior consistent statement. However, on appeal, the court held that the military judge did err, but determined that the video would be admissible under Mil. R. Evid. 801(d)(1)(B)(i). The court explained that “[w]hile we agree that some of the prior statements could have been admitted under that reasoning, we find such analysis unnecessary because the prior consistent statements are clearly admissible under Mil. R. Evid. 801(d)(1)(B)(i) to rebut the implied charge that EN's testimony was coached. Accordingly, we find that the statements were properly admissible under Mil. R. Evid. 801(d)(1)(B)(i) and Appellant was not prejudiced by the military judge's erroneous application of part (ii) of the rule.”
The government argues that although the military judge erred in his reliance on Mil. R. Evid. 801(d)(1)(B)(ii), the testimony was otherwise admissible. Furthermore, the Government argues that under the Kerr factors, the admission of the evidence was harmless and did not subject Appellant to prejudice. Relying upon the lower court’s plain reading of the law, the Government’s case is strong and well-reasoned. Swatting away Appellant’s claims of misconduct, the Government contends that prosecutors are permitted to play hardball and the evidence supported their comments and actions.
On the other side, Appellant argues that the lower court’s decision to allow the full video was made in error and that only portions of the video would be admissible under Mil. R. Evid. 801(d)(1)(B)(ii). Moreover, Appellant argues that those portions that were, in Appellant’s perspective, inadmissible hearsay prejudiced Appellant. Next, Appellant contends that the “inflammatory language” used by the Government hindered Appellant’s showing and such comments were evidence of misconduct.
Final thoughts: it is undisputed that the military judge erred in his initial determination, but his mistake was remedied by the NMCCA. Yet, Appellant chooses not to address the Kerr factors in the Government’s brief. Appellant contends that the scope of the decision is too narrow and should be extended to the whole record, but this still does not clear Appellant’s name.
Initials indicates individuals are minors.
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