ACCA affirmed the findings and sentence of SFC Robert L. Worsham, finding that Worsham's assignments of error warranted no relief.
Worsham opinion here.
Appellant was convicted, contrary to his pleas, of six specifications of sexual assault upon a child in violation of Article 120, UCMJ. He was sentenced to a dishonorable discharge and confinement for twelve years. During deliberations, the military judge called three witnesses to give testimony; one of these witnesses was not called during trial. On Appeal, ACCA considered: (1) whether the military judge abandoned his impartial role when he called three witnesses for questions in the midst of deliberations; and (2) whether Appellant’s counsel was ineffective by failing to object to the questioning. In a unanimous opinion, the Court denied granting relief.
Appellant claimed that recalling NAG (the “complaining witness”), BW (the “Appellant’s daughter”), and calling NG (the “Appellant’s roommate”), showed that the judge abandoned his neutral role. Also, he took issue with the manner in which the judge asked the questions, arguing that the judge was effectively acting as the prosecution.
As an initial matter, the Court found that the judge was permitted to ask additional questions during deliberations. Article 46, UCMJ and Mil. R. Evid. 614 give the judge discretion to call witnesses during deliberations; this includes witnesses that were not called during trial. As the trier of fact, the judge appropriately exercised his discretion to ask questions in order to make a well-reasoned decision.
In regard to the specific questions, the Appellant argued that the judge elicited “human lie detector testimony,”but the Court disagreed. It reasoned that the judge was asking questions to test the biases and credibility of the witnesses, not to specifically figure out whether these witnesses believed the allegations. Moreover, the Court noted that Appellant failed to cite any case law that states when a witness is vouching for his own credibility by testifying that others believed him constitutes “human lie detector testimony.”
2. Appellant’s counsel was not ineffective
Appellant alleged that his counsel was ineffective because (1) he failed to object to the judge’s questioning; and (2) he did not call a witness to testify that the complaining witness’s door did not have a lock.For its analysis, the Court applied Strickland.
ACCA found Appellant’s claims meritless because (1) the judge’s questioning of the witnesses was proper; and (2) testifying that there was no lock on the door would not have changed the result. Since the Appellant attacked the credibility of the complaining witness throughout the trial, and the judge still found the Appellant guilty, one additional attack would not have influenced the judge’s ultimate decision.
Judge Salussolia authored the majority opinion, which was joined by Judges Aldykiewicz and Walker.
The Court conducted an additional “Liljeberg” analysis and found that even if the judge should have been disqualified, the Appellant was not entitled to relief. (1) There was no merit in the Appellant’s claims; and (2) the judge’s questions, and the manner in which he asked these questions, did not undermine the public’s confidence in the criminal justice system.
Human lie detector testimony is described as an opinion as to whether the person was truthful in making a specific statement regarding a fact at issue in the case.
In her testimony, the complaining witness alleged that each time the Appellant sexually assaulted her in her room, he locked the door.
(1) His counsel’s performance was deficient; and (2) that this deficiency resulted in prejudice.
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