Name: Joseph K. Avery
Case: United States v. Avery No. 96-1157/AR
Date Of Conviction: June 27, 2007
Argued October 27, 1999
Decided April 14, 2000
Plea: Guilty
Charges: Rape, see below
Military Branch: U.S. Army
Listed In National Sex Offenders Registry? Yes, Florida
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Joseph K. Avery Jr.
U.S. Army Specialist
Convicted Sex Offender
Rape And Adultry
A general court-martial composed of officer and enlisted members convicted appellant, contrary to his pleas, of rape and adultery, in violation of Articles 120 and 134, Uniform Code of Military Justice (hereinafter UCMJ), 10 USC §§ 920 and 934, respectively. The convening authority approved the sentence of a dishonorable discharge, 6 years' confinement, total forfeitures, and reduction to the lowest enlisted grade. On May 17, 1996, the Army Court of Criminal Appeals affirmed the findings and sentence.
On April 17, 1998, the Court of Criminal Appeals ordered the prosecutors and the trial defense counsel to produce affidavits answering the issues mandated by this Court. All counsel provided affidavits in response to the court order. On July 21, 1998, the Army Court affirmed the findings and sentence.
On November 22, 1994, at appellant’s Article 32, UCMJ, 10 USC § 832, investigation, trial defense counsel learned that the victim, Private First Class (PFC) C, made similar allegations of rape 1 year earlier while stationed at Fort Hood, Texas. Despite a defense pretrial discovery request for the Fort Hood Criminal Investigation Detachment (CID) report involving the prior rape allegation by PFC C, it was not given to defense counsel until trial was completed.
At an Article 39(a), UCMJ, 10 USC § 839(a), session during trial, the Government made a motion in limine to preclude the defense from introducing evidence of the victim's prior rape allegation at Fort Hood. Although the prosecutor did not have a copy of the Fort Hood CID report to review at the time of his motion in limine, he argued that there did not appear to be evidence that this report was false. The factual references in the Government’s motion in limine repeat PFC C's assertions made during the Article 32 investigation.
SULLIVAN, Judge (concurring in part and in the result):
In the case at bar, there was no finding by any court that the victim's prior rape accusation was false. There also was no hint from the victim that she had falsely reported the prior rape. In addition, there was evidence that the perpetrator in the prior rape may have made some damaging admissions indicating that he did rape her. See Avery, No. 9500062, slip. op. at 4, 10 (Army Ct.Crim.App. July 21, 1998). Thus, it is clear that appellant has failed to prove a reasonable probability of prejudice in this case. Accordingly, since there was no significant impairment of the right to present a defense, I would affirm on this basis.
