United States v. Staff Sergeant ANTHONY POWELL

UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before

LIND, KRAUSS, and PENLAND Appellate Military Judges AT,

Petitioner v.

Colonel JEFFERY D. LIPPERT, U.S. Army, Military Judge, Respondent and

Staff Sergeant ANTHONY POWELL

U.S. Army,

Real Party in Interest

ARMY MISC 20150387 June 2015 ---------------------------------------------------------------------------------------------- SUMMARY DISPOSITION AND ACTION ON PETITION FOR EXTRAORDINARY RELIEF IN THE NATURE OF A WRIT OF MANDAMUS ----------------------------------------------------------------- -----------------------------

Per Curiam:

The real party in interest is charged with two specifications of abusive sexual contact, one specification of sodomy, and three specifications of assault consummated by a battery in violation of Articles 120, 125, and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 920, 925, 928 (2012 & Supp. I 2014).

Petitioner, through special victims’ counsel, seeks extraordinary relief in the nature of a writ of mandamus vacating the military judge’s order that petitioner’s confidential records of communication with a victim advocate be produced for in camera review pursuant to Military Rule of Evidence [hereinafter Mil. R. Evid.] 514. Petitioner also requests this court grant her motion for oral argument on this issue and stay the court-martial proceedings pending our decision on the matter. We conclude that issuance of the requested writ is inappropriate and unnecessary under the circumstances and, therefore, we need not grant oral argument or issue a stay.

Petitioner is, of course, correct that communications by a victim to a victim advocate, acting in that capacity, are confidential if the communications were not intended to be disclosed to a third person. Mil. R. Evid. 514(b)(3). She here complains that the judge erred by declaring her communications to the victim advocate as not confidential because she expressed her intent to make an unrestricted POWELL—ARMY MISC 20150387 report of sexual assault. While review of Army Regulation 600-20 on the subject of unrestricted reporting suggests that the details of the reported assault communicated to a victim advocate in a case of an unrestricted report would not be privileged under Mil. R. Evid. 514, the evidence in this case adequately establishes that petitioner’s intent to disclose was limited to the mere allegation s that a sexual assault was perpetrated and her identity as victim. However one might interpret the pertinent regulations, it is the victim who defines the scope of information to be d isclosed to third persons under Mil. R. Evid. 514. Therefore, anything in the judge’s order that might be interpreted otherwise would be incorrect. 1

Petitioner further complains that the judge erred by failing to enforce the threshold requirements for the production of records for the purpose of in camera review under Mil. R. Evid. 513 to this situation under Mil. R. Evid. 514. See United States v. Klemick, 65 M.J. 576, 580 (N.M. Ct. Crim. App. 2006). However, whether or not the Klemick threshold requirements for Mil. R. Evid. 513 apply to matters under Mil. R. Evid. 514, the accused here adequately demonstrated a reasonable likelihood that petitioner’s communications to the victim advocate about the very allegations that serve as the basis for the char ges against him include evidence admissible under Mil. R. Evid. 514(d)(6) that may not otherwise be discovered. 2 See id. (“This standard is not high, because we know that the moving party will often be unable to determine the specific information contain ed in [the requested] records.”). Under these circumstances, and in light of the lesser burden of production in any such matter, we find the judge did not abuse his discretion by ordering the production of the records in question for in camera review in accordance with Mil. R. Evid. 514(d)(6) and (e). 3

POWELL—ARMY MISC 20150387

CONCLUSION

The Petition for Extraordinary Relief in the Nature of a Writ of Mandamus, the Motion for Oral Argument, and the Application for a Stay of the Proceedings are DENIED.

FOR THE

FOR THE COURT:

COURT:

MALCOLM

MALCOLM H. H. SQUIRES, SQUIRES, JR. JR. Clerk

Clerk of of Court

Court