*1 STATES, Appellee, UNITED ALAMEDA, Airman,
Tedio Senior Force, Appellant. Air
U.S.
No. 01-0534.
Crim.App. No. 33529. Appeals
U.S. Court of
the Armed Forces.
Argued April 2002. Aug.
Decided
GIERKE, J., opinion delivered S.J., BAKER, COX, J., Court, and in which J., EFFRON, opinion con- joined. filed dissenting part. part curring in and CRAWFORD, C.J., dissenting opin- filed a ion. (ar- B. Zimmerrmnn Appellant: Jack
For Schools, Shelly Terri gued); Captain W. (on brief); Jacobs, Kyle Sampson R. R.Z. and Major B. Brown. Jefferson (ar- Appellee: Captain Adam Oler For Lieu- gued); Anthony P. Dattilo and Colonel brief). (on Sigmon B. Lance tenant Colonel opinion Judge GIERKE delivered the Court. composed of offi- general
A court-martial appel- cer members convicted and enlisted lant, contrary pleas, attempted pre- murder, disobeying the order of a meditated officer, con- superior assault commissioned communicating battery, summated 80, 90, 128, threat, of Articles violation Military 134, Code of Justice Uniform 934, 880, 890, (UCMJ), §§ USC respectively. adjudged approved dis- provides for a dishonorable sentence years, forfei- charge, for total confinement tures, lowest enlisted and reduction 58b, UCMJ, 10 grade. Pursuant to Article 858b, authority convening § waived USC for the benefit of automatic forfeitures spouse Court lant’s and children. Appeals findings Criminal affirmed opinion. unpublished in an sentence granted to determine Court review This findings and sentence should whether rights under set aside because to the States Con- Fifth Amendment UCMJ, 10 USC and Article stitution prosecution § were violated when remained elicited back, apprehended, silent when he was then head and her and threatened to kill during argu- commented on his silence final her. She testified that after de- below, work, ment.1 For the reasons out parted set we she e-mailed a friend and reverse. Tammy Warner, neighbor, asked Security (Security call the Air Force Forces Background, Factual *3 Forces). charges arose from be- two incidents Security investigated After the Forces appellant tween and his wife. The inci- first incident, commander, First Lieu- 30,1998 April dent was on and the second on (lLt) Haussler, tenant Deborah ap- ordered 19,1998. May pellant to family quarters move out of the appellant Mrs. Alameda testified en- dormitory. into a gave appellant and She a in gaged pattern a physical of and verbal prohibiting written order him having from abuse, control, and domination and threats child, contact his wife and unless it kill began her that in while he was prearranged certain named members undergoing training shortly technical after of the unit. Force, he enlisted in Air and continued later, Family Advocacy About a week placed appellant until pretrial in confine- therapist contacted lLt Haussler ex- and charges ment as result of the that are the pressed concern that had been she unable to subject of appeal. this Mrs. Alameda contact Mrs. Alameda. lLt Haussler visited medically evacuated from Kadena Air Base therapist and Mrs. examined Alameda’s (AB), Okinawa, Japan, in 1991 of because file, Family Advocacy which revealed depression stress she attributed appellant “stay away” had violated a similar appellant’s behavior. She described an inci- on previous order occasion. lLt Haussler Base, dent at McGuire Air Force New Jer- became concerned about Mrs. wel- Alameda’s sey, between duty two tours of fare decided to visit her at home “to AB, appellant Kadena in large which held a okay.” visiting make sure she was While throat, against butcher knife her threatened Alameda, Mrs. lLt Haussler noticed bruises her, door, to kill shoved her into frac- upper on Mrs. Alameda’s arms. jaw. turing Appellant her and Mrs. Alameda in were divorced 1993 and then in remarried during May 12, Sometime the week 1998, lLt “early Haussler an return received (ERD) dependents” packet to allow Mrs. Mrs. Alameda testified that the morn- Alameda and her son leave 30, 1998, Okinawa at ing April appellant upset became government expense appellant before com- when an message he discovered e-mail on her pleted duty. his tour did know computer high from She a male school friend packet originated. how the ERD in- hers who wanted to visit in She her Okinawa. appellant According Alameda, sign formed he needed to Mrs. tossed packet. table, sign He refused to computer off because did smashed the tele- phone help, when tried call not want his son to she leave Okinawa. lLt head, “flicked” towel at her subsequently shoved and Haussler learned that ERD an her, grabbed punched her request approved on the back of her mili- could be without the argument 1. We heard oral in case at MENTED THIS ON DURING FINAL ARGU- Law, Seattle Seattle, WA, School of as University MENT. See "Project o£ Court’s Outreach.” part II. WHETHER THE SEN- FINDINGS AND Pritchard, United States v. 45 MJ 127 n. TENCE BE ASIDE SHOULD SET BECAUSE (1996). granted issues are: APPELLANT’S RIGHT TO REMAIN SILENT 1. WHETHER THE FINDINGS AND SEN 31(b), UCMJ, UNDER ARTICLE VIO- WAS TENCE SHOULD BE SET ASIDE BECAUSE LATED WHEN THE ELICIT- PROSECUTION APPELLANT’S RIGHT TO REMAIN SILENT ED TESTIMONY THAT DID APPELLANT UNDER THE VI FIFTH AMENDMENT WAS NOT RESPOND VERBALLY WHEN ARREST- OLATED WHEN THE PROSECUTION ELIC ED, AND WHEN THE COM- PROSECUTION ITED THAT TESTIMONY APPELLANT DID MENTED ON THIS FINAL DURING ARGU- NOT RESPOND VERBALLY WHEN ARREST AND THE ED, WHEN PROSECUTION COM- MENT. lLt Haussler She called tary signature, she informed been disturbed. member’s had been complained request would and appellant May 18 that the order, “stay away” signature. spite lLt processed the house without money, approxi- groceries Mrs. Alameda at had her instead contacted left Haussler May 19, rummaged through belongings. lLt mately p.m. made 2:30 office, her, my sign the appointment for Mrs. Alameda to “come down to told Haussler get you lLt office at off this request sign ERD Haussler’s ERD letter. We’ll p.m. day. quickly about 3:30 on that can.” Mrs. Alameda as we island immediately. responded would come that she morning May Alameda On the Mrs. squadron sergeant first contacted that as she was Alameda testified Mrs. money for food. residence, told him that she needed leaving entered. request was transmitted to When her *4 appellant, she saw She testified that when lant, expressed money concern that his he completely hysterical ... [and] she “was ap- being for food. With the was not used standing in he front freaked out that was sergeant, appellant pur- proval the first appellant tried to testified that [her].” She and, commissary at chased food the base to a corner calm her down. She moved by offi- accompanied two noncommissioned couch, room, appellant sat on and the cers, family the food to the residence took you Do “Do want divorce? asking, started residence, early at the afternoon. While They respond. you this?” She did want appellant gathered personal clothing some Appellant began around the house. to move effects, informa- and and downloaded some her putting his hands on because she was computer. His tion from his escorts re- stuff,” trying scream out and and “was to arriving squadron, turned at about to testified, “Every get away.” “trying to She p.m. Appellant departed family 2:15 res- made, top right on of me.” move I he was return idence in his own vehicle. He did not point, one Mrs. Alameda testified at because, work he told to with his escorts as appellant covered her was behind her and he chaplain. supervisor, see a he wanted to nose that she pinched mouth and so Wagoner Chaplain (Captain) Tim testified struggled free and could not breath. She appellant, asking a call from he received appellant ran the door. She saw toward telephone see him. records estab- to Base pocket. Hefty garbage bag from his pulling a p.m. Appel- lished was 1:55 call at straps, yellow tightly It fold- was black with Chaplain Wagoner that he was at lant told ed, opened. appeared to have never been Chapel 2; Chapel Chaplain Wagoner atwas trying Appellant to hold her with one appel- Chaplain Wagoner agreed to see bag and unfold the with the other. She hand lant, chapels Chapel 1. who came to Both away appellant grabbed her get tried to housing the Alame- are near the area where testified, got up it “[H]e from behind. She According to da residence was located. stuff, my trying to face and far as telephone Chaplain Wagoner’s records and my get it over get open to where he could testimony, appellant his unit at called 2:09 down, stuff, up ducking I ended head and but p.m. and told them that he was with the struggling, getting out.” chaplain. Chaplain Wagoner testified ran testified that she into Mrs. Alameda “a appellant for little better counseled bedroom, telling appellant that she would He was sure whether he than an hour.” me to do.” She “[w]hatever do want counseling appellant had when he finished him, “Please, go into the let’s back asked p.m. telephone at made another call 3:10 appellant turned living room and talk.” As place departed Aameda her on-base Mrs. room, living she go to into the around anticipa- p.m. in employment at about 3:00 it, and locked slammed the bedroom door appointment tion of her with lLt Haussler. out and then crawled a window. p.m., at 3:15 saw She arrived home about street, A screaming. appel- She ran across groceries, that some of and noticed neighbor, Young, let Mrs. Alameda clothing set had Melanie lant’s that she had aside house, into her where Mrs. Alameda called red Alameda had marks the sides of her ILt Haussler. neck. began TSgt Moody then look cross-examination, to
On Mrs. Alameda testi- adja- began searching lant. He the street fied that she did not remember whether she pro- cent to Alameda residence and then Security appellant told the Forces that dormitory to on a ceeded area. Based attempted “strangle” In response her. van, description it in he located questions, defense counsel’s she insisted that her, dormitory sitting appellant try appellant area and saw strangle did not stairs, dormitory talking put garbage tried to to another bag over her head. TSgt Moody individual. called for another ILt Haussler testified that Mrs. Alameda arrived, TSgt Moody unit to assist. When it called p.m. screaming her at 3:45 approached appellant and asked him he appellant had been in the house and Alameda, was Airman respond- tried to kill her. ILt Haussler called the TSgt Moody ed that he was. asked the Security Forces and then drove person away, next move asked Alameda residence. card, ap- for his identification Both ILt Young Haussler and Ms. noticed pellant complied. As the trial counsel contin- red marks around Mrs. neck. A Alameda’s TSgt Moody, ued the direct examination of hospital doctor at the base noticed that she occurred, following colloquy giving rise to *5 superficial had abrasions neck and granted issues: scratches her nose. He also noticed Q. any questions during Did he ask other on her leg, “goose bruises arm and and a this time? egg” on the back of her head. A. No. Sergeant (TSgt) Technical Gowan and his like, Q. say anything Did he do “What past wife quarters drove the Alameda at you you want? What are here for?” or May p.m. They about 3:15 both testi- anything that? like van, they fied that saw a later determined to A. No. appellant’s, parked be near the Alameda resi- Objection, DC: Your Honor. Irrelevant. at p.m. dence about 3:15 MJ: Overruled. TSgt Moody, Eugene a member [Questions by assistant trial counsel] Forces, Security patrol was on routine when Q. any Did he make such statement as respond he was directed to to the Alameda that? residence. He knew where it was because he No, sir, A. he did not. responded April had also to the 30 incident as well an In response as earlier incident. Q. was, fact, you After verified Sen- counsel, question a TSgt Moody from trial Alameda, you ior Airman Tedio what did appellant testified that when he observed do next? incident, April appellant “pretty after the going A. informed him that he emotion, just plain much was without a alleged apprehended for an assault. look....” Q. say And what did he or do then? TSgt Moody When arrived the Alameda say anything. A. He didn’t He didn’t do May residence on he noticed that anything. a He had look like [witness open bedroom window was with the blinds stared and ahead] that was it. hanging out window. Mrs. Alameda was Q. you why being Did ask he he “excited, definitely upset.” ... Accord- arrested? ing TSgt Moody, Mrs. Alameda said that No, sir, A. he did not. appellant bag “had a around neck” and [her] Q. act Did he like he knew what was to kill her. thought tried He testified that he going on? put bag she meant that neck, “really Objection, around her but she was not DC: Your Honor. Calls for Moody TSgt speculation. clear.” observed that Mrs. respective knife, utility their you he ob- both Again, can ask him what
MJ: SSgt Anthony also served, original packaging. found you him those can’t ask Army bag bearing logo he types plastic or not conclusions whether (AAFES), Exchange Air Force Service did understand. 2-inch roll of mask- containing unopened an Q. So, again, you Airman when asked May tape, receipt dated ing AAFES card, any- say for his ID did Alameda coffee, utility reflecting purchase thing? masking knife, tape, roll of gloves, a latex No, A. sir. cigarettes. plastic The pack GPC Q. you he was when told him that And bag in a trash can across was located say apprehended, anything? did being he found the from the one where bathroom A. He said— bags. Hefty garbage answered, Objection. DC: Asked and bag, receipt, masking plastic roll of Your Honor. gloves, utility knife were re- tape, latex it, you on. long MJ: I’ll allow as as move objection. in evidence over defense ceived Yes, Honor. Your ATC: argued items had not The defense that the Q. you Airman How would describe prosecu- appellant. been connected him he Alameda’s reaction after told argued, that the items were relevant tion being placed under arrest? premeditation, and that were suffi- show just again, previous A. in the Once ciently linked to the fact where I had made contact with situation cigarettes were the same brand Alameda, have of a Airman he didn’t much smoked, that all the items were thrown or much emotion at all. reaction time, in the away at same about the same cross-examination, Hefty bags, On defense counsel garbage new as the condition TSgt Moody asked Alameda used the Mrs. dormito- the common bathroom *6 word, “strangle.” responded, He ry. evi- admitted the The dence, finding the items relevant show remember, trying No. I “He to kill was plan premeditation.” “some sort of trying strangle was He me. He me. my trying bag was to—he had a around record, in not reflected Mrs. On date trying strangle neck me.” But cigarettes pack Alameda delivered a of GPC “strangle” term in also. was there them that to the OSI and informed Sergeant (SSgt) Anthony was Staff Steven during May 19 dropped them alter- appellant’s dormitory directed to search fingerprint ciga- A lifted from the cation. bag plastic garbage “dark brown black pack appellant’s. rette was yellow drawstrings.” with He searched the testify. Appellant did not His counsel con- dormitory, entire and he found a box credibility attacking the centrated on Hefty descrip- garbage bags matching that witnesses, especially Mrs. Government in a tion in a trash can common bathroom. addition, presented Alameda. In the defense agent Later examination an of the Air testimony of to contra- three witnesses (OSI) Investigations Special Force Office testimony. Alameda’s dict Mrs. garbage bag had re- revealed that one been remaining. from the and were moved box presented stipulated The testi- defense Hefty finger A was print on the box latent mony in of a airman who was involved senior stipulation of appellant’s. A identified in-processing appellant into the con- expected testimony of a dor- member facility early morning during the finement mitory custodial staff established that May stipulation re- hours of 1998. The Hefty garbage custodial staff did not use in possession of a cites that bags, and that the trash cans the bath- package cigarettes partially empty of GPC daily. emptied rooms were in-processed. testimony This when he was can, SSgt Anthony Alameda’s same was offered contradict Mrs. trash unopened gloves inadvertently left package found of latex statement cigarettes family Honor, his quarters May TC: Your the witness testified about what he said did when apprehended him. stipulated Crystal of Mrs. MJ: I think it’s fair comment on the state any Hammond recites that she hear did not However, empha- the evidence. I will “yelling, screaming, or other loud noises com- again size fact once that this accused is ing from the Alameda residence.” It further absolutely obligation any under no make testify adds that Mrs. Hammond would during statement the trial in his defense. asleep she was with the television on between Yes, TC: Sir. approximately p.m. p.m., 3:00 and 4:00 Sergeant Moody ap- TC: And when closed, that, the windows and doors un- proaches steps says, him on the “Are circumstances, der very these she hear could You, up. Tedio Alameda? Stand little, anything, from outside. man, away get your from him. Let me see nine-year-old girl, A whom Mrs. Alameda say, identification card.” He even doesn’t apartment, observed when she ran out of her though— “What’s this all about?” Even testified that Mrs. Alameda left from her Object again, DC: Your Honor. believe porch, front not from a bedroom window. this not fair comment on the evidence. girl testified that when she saw Mrs. This is comment on his exercise of his Alameda, the standing right latter “was right to remain silent. porch, keys putting her in.” She also Honor, Your TC: the witnesses testified in testified that Mrs. Alameda locked doors court, objection, specif- this without to that car, parked to her which space in a ic fact. marked with the number her house. regard MJ: ask With did not what closing arguments, Before when the mili- going on? members, tary judge instructed the he in- right. TC: That’s following cluded the admonition: Okay. got MJ: we’ve Now that. We right The accused has an absolute to re- know that is in evidence. Now with re- main silent. You will not gard—nothing draw infer- against will held this ence adverse to the accused from the fact say anything accused because he did not testify that he did not as a Okay? witness. The keep defense. So let’s fact very accused has not testified must clear. *7 disregarded by you. Regarding the found in items the dormito- bathroom, ry argued trial they counsel that arguments During findings, on trial coun- premeditated showed a intent to kill. Trial specific sel a TSgt made reference to argued counsel further that in sat Moody’s testimony appellant’s lack about chaplain’s the thought office and to himself: response appre-
reaction or when he was leaving “I’m going go here I’m and to take following exchange place hended. The took got implements out. whore And I’ve the presence of the members: my got bags. got I’ve box of car. I’ve behold, “... cops TC: And lo and gloves. got the rubber I’ve the knife. I’ve picked up, just came and me and I was got tape.” Trial counsel continued his sitting steps, there on the didn’t know argument: about,” what this was but didn’t bother plan Who knows what he had in sinister even to ask. going mind? That he was to subdue her Now, does that indicate consciousness of bag? Gag her and bind her' with guilt? police say, The come and “Stand tape? Cut her wrists? Cut her up”— Keep throat? the blood off his hands? Objection, DC: Your Honor. The fails, accused And he then when he when fails obligation is under no to make a statement enough get the because she’s smart door drawing and this gets adverse inference between them and out the win- she dow, gets from proclaim his failure to his innocence. he out of that house. And he violated when the Article was down, gets van where he’s and he in his runs TSgt Moody hill, testimony from facing elicited parked door counsel got it with the silence, then in, goes post-apprehension and hop his to do and he about all he has is so very quickly, he reflected dormitory argued that this silence to the back [sic], get guilt. Appellant all further as- I rid of says, better consciousness of “Jeez military this.” judge involved in exacerbated things that are that the these serts upstairs he he throws members that And runs when he advised the error trial, testify in the in the common bags obligation trash at box no appellant had bathroom, imple- rest of the right area he had the not them that did advise ments, imple- The of the new too. rest apprehended. silent when he to remain May, three bought ments on the 16th at 9. The Appellant Brief Behalf of Reply days before. Premeditation. error, but ar- not concede does Government by a preserved place. Same Same condition. was not gues Same time. that the issue guilt. premedi- any objection, Proof and that timely specific Consciousness kill. intent kill. Is design tated And beyond a reasonable eiTor was harmless even there other intent here that is Brief Behalf doubt. Final Putting bag a reasonably inferable? over at States 9-10. right they get off somebody’s head before Waiver just going for one Was over island? 103(a), Manual for Mil.R.Evid. Courts- at control? One more exer- more exercise (2000 ed.),2 Martial, provides just get want one United States cise of dominance? a go? “may predicated” lick in not be last before that error ruling ruling admitting evidence “unless the keep going Or was he instead over there to materially prejudices right substantial put body going? Perhaps to her from timely specific party,” bay, bags, her in the there different throw 103(d) objection. sets care, Mil.R.Evid. out boy pick up day and claim “Nothing in exception: this rule plain it. error anything didn’t know about plain precludes taking notice of errors overwhelming. Attempted The evidence materially rights al- prejudice substantial premeditated Intent to kill. Not murder. they brought to the atten- though were just credibility contest. military judge.” tion of the deliberating approximately eight After two-day period, over a the court mem- hours When trial counsel first elicited charged. bers convicted ap TSgt Moody, it was not from Appeals Court of Criminal held argue parent that he intended to later by admitting the erred appellant’s silence showed consciousness utility knife, masking tape, gloves be- military judge summarily over guilt. The sufficiently cause were connected objection, counsel’s relevance ruled defense held, however, appellant. The court below rea allowing either side to articulate without error harmless. Govern- *8 testimony, admitting the against for or sons holding. ment not that does contest articulating any rationale for and without admissibility not court below did address military admitting If the the evidence. testimony appellant’s about silence of proffer required trial a judge had counsel apprehension, or the trial the time of his relevance, theory possible implication of in- argument the silence was counsel’s that might have been the Fifth Amendment of guilt. of of dicative a consciousness earlier in the trial. We hold apparent much Discussion objection challenging that defense counsel’s testimony TSgt Moody’s was right to the relevance of Appellant now that his asserts of admis- preserve Fifth sufficient the issue remain silent under the Amendment provisions to the martial. 2. All cited are identical Manual appellant’s in effect at the time of court- ones
198 sibility Thus, in light application of that of Mil. we de review his of law 304(h)(3). R.Evid. We that further hold de- novo. timely objection
fense counsel’s to trial coun- Moody TSgt advised that argument preserve sel’s was sufficient being apprehended “alleged was for an as statutory arising constitutional and issues Appellant history sault.” had a of domestic from trial counsel’s use of evidence as violence, assaulting had been accused of his proof guilt. substantive of earlier, wife less that two and had weeks stay away been ordered to from her because Relevance circumstances, of the incident. Under these 140a(4) Paragraph of the Manual for deny allegation his of failure to one more (Rev. Courts-Martial, States, 1969 “alleged support assault” does not an infer ed.), specifically recognized by admissions si- Thus, guilt. appel ence of we conclude provided: lence. It response lant’s lack of not relevant. imputation If against person an a comes to Finally, if even silence consti- his attention under circumstances that admission, only tuted an an would admit reasonably by would call him denial assault,” premeditat- “alleged attempted not accuracy imputation of of military judge ed murder. We hold that the true, imputation failure by admitting erred of the evidence part support to utter will such denial guilt. lant’s silence as of substantive evidence thereby inference that he admitted the imputation. Closing Argument truth of deleted, provision This has since been privilege against self-incrimina recog- “admissions silence continue to be 31(a), recognized supra, tion Article military nized in both and civilian federal virtually privilege identical to the under the Cook, practice.” United States v. 48 MJ Thus, Fifth Amendment. our Fifth Amend (1998); Stanley, 240 see States also United 31(a). analysis applies ment also to Article 1986)(silence (CMA MJ consid- closing argument, the trial counsel was ered an admission “under certain circum- permitted argue, objection, over defense stances”). response lack of when was 304(h)(3) Mil.R.Evid. the in- states when apprehended “alleged for an re- assault” may provides: ference drawn. It be guilt premedi- of of flected his consciousness person’s A deny failure to an accusation of involving argument murder. tated Issues wrongdoing concerning an offense for referring subject to unlawful matter are re- alleged which at the time of the failure the viewed de novo as issues of law. See person investigation under official Davis, Steven & Childress Martha Federal confinement, arrest, custody inwas does ed.1999). Review, (3d § Standards 11.23 not support an inference an admission distinguish The federal circuits between the truth of the accusation. pre-arrest post-arrest They silence. are Colcol, See United States v. 16 MJ 484 n. question prosecu- divided whether the (CMA 1983) (prearrest usually silence inad- may argue pre-arrest tion silence is guilt missible and not an act which can from However, Sixth, First, guilt. evidence inferred). Seventh, Circuits, constituting and Tenth military judge’s We review a decision to majority of the circuits have addressed admit evidence for abuse discretion. If issue, pre-arrest held use have fact, findings makes we guilt silence as substantive evidence of vio- *9 clearly-erroneous findings review the under a the Fifth Amendment. These circuits lates of standard review. We conclusions review application privilege “that of the is maintain Sullivan, law novo. v. of de United States 42 persons custody charged not limited to in or (1995). 360, MJ 363 crime; may also be asserted case, judge questioned during the military suspect this the made no who is investi- Powell, findings explicit gation fact of of a crime.” v. Coppola of conclusions law. 878
199
against
(1st
Cir.1989);
“nothing will be held
v.
1562,
see
bers
1565
Combs
F.2d
(6th
say anything in
269,
did
Coyle,
F.3d
282-83
accused because
205
view,
supra);
instructions
Cir.2000)(citing Coppola,
United
In our
these
his defense.”
(10th
Burson,
1196,
952 F.2d
1201
v.
did not ad-
States
off the mark because
were
Cir.1991);
Savory v.
ex rel.
question
any
United States
adverse in-
the
whether
dress
Cir.1987)
(7th
Lane,
1011,
832 F.2d
1017
appellant’s si-
could be drawn from
ference
split
(summarizing the
in the federal circuits
apprehension.
of his
at the time
lence
pre-arrest si-
holding that comment on
error,
curing
of
the
the instruc-
Instead
Amendment).
Fifth
lence violates
may
it.
instruc-
have exacerbated
tions
use of
has held that
Ninth Circuit
testimony and
only on trial
tions focused
sub
pre-Miranda3 silence as
post-arrest,
appellant’s pretrial silence.
to
failed
address
guilt
Fifth
of
violates the
stantive evidence
to
may have led the members
This omission
v. Velarde-Go
Amendment. United States
that,
no
inference
while
adverse
conclude
Cir.2001).
(9th
mez,
1023,
A
269
1028
F.3d
appellant’s failure to
be drawn from
could
response
lack of
or reaction to
accusation
trial,
permitted
were
testify at
the members
evidence,
failure
is not “demeanor”
from
draw an adverse inference
speak. Id. at 1031.
apprehension.
time
lant’s silence at the
of his
304(h)(3) makes no distinction
Mil.R.Evid.
military
Accordingly,
the
we conclude that
post-arrest
pre-arrest
between
silence.
judge’s
the error and
instruction did
cure
applies
any person
under
It
who “was
may
it.
have exacerbated
confinement,
in
investigation or was
official
Harmless Error
arrest,
custody.”
novo
reviews de
wheth
This Court
pre-
post-apprehension,4
involves
This case
v.
an error was harmless. United States
er
conclude,
the
Miranda
We
based on
silence.
(2001).
223, 228
We
Grijalva, 55 MJ
consid
304(h)(3)
language
what
of Mil.R.Evid.
following
prej
the four
factors to evaluate
er
perceive
weight
authority
the
of
in
we
to be
evidentiary rulings:
udice from erroneous
circuits,
military judge
the
that the
federal
“(1)
case,
strength
the
the
of
Government’s
by permitting
committed constitutional error
(3)
(2)
case,
strength
the defense
of
ap-
prosecution to introduce evidence of
question,
materiality
in
of the evidence
pellant’s post-apprehension
as sub-
silence
(4)
question.”
guilt,
quality
stantive
then com-
of
evidence
evidence
Kerr,
closing
401,
argument.
ment on that evidence
MJ
405
States
51
United
Weeks,
(1999)(citing
20 MJ
States v.
Curative Instructions
(CMA 1985)).
22,
apply these
25
We will
When a
instructs
analyze
impact
the cumulative
factors
members,
question
whether the content
tape,
masking
the erroneous admission of the
is re
legally
correct
instruction
utility knife,
gloves,
as well as the
latex
Quin
viewed de novo. See United States v.
ap
about
erroneous admission
(2001).
tanilla,
37,MJ
evi
pretrial silence as substantive
pellant’s
guilt.
dence
objected
defense
to tri
When
counsel
argument
al counsel’s
silence
analyze
impact of trial coun
To
military
guilt,
showed a consciousness
impermissible
comment
sel’s
judge
instructed
members
silence,
first
whether this
we must
determine
obligation
“no
to make
statement
magnitude. For
error is
constitutional
(Emphasis
during
in his
defense.”
error,
added.)
be
we must be satisfied
objected
constitutional
counsel
When defense
military
yond
mem-
doubt that
error
again,
judge instructed the
reasonable
Arizona,
terminology is
This difference in
based
U.S.
86 S.Ct.
cases.
3. Miranda v.
(1966).
"apprehension”
We are likewise satisfied a reason- attempted voluntary respect manslaughter, aggravat- appellant’s able doubt with convic- assault, away” by violating “stay tion of ed and assault order on consummated May battery. 43b(2), 44b(l), testimony Paragraphs Mrs. Alameda’s cor- See 54b(4)(a), 54b(2), TV, Manual, roborated the witnesses who observed Part su- respectively. scratches on nose pra, and abrasions on her neck, who the witnesses observed trial, prosecution’s proof At of the ele- residence, parked TSgt Moody’s ear near the premeditation ments of to kill intent description open bedroom with window following: consisted of the out, hanging testimony the blinds (1) ap- Mrs. Alameda’s Young lLt Haussler and Melanie about Mrs. pellant garbage bag removed unused immediately Alameda’s demeanor after her pocket attempted place from his appellant. confrontation with head; over her However, persuaded we are not be (2) unopened masking tape, roll yond a reasonable doubt that the were errors utility original package, knife its and an respect harmless with the court members’ unopened package gloves, of latex found in finding premedi with acted bathroom; dormitory a common design trial, tated to kill Mrs. Alameda. At (3) bags Hefty garbage a box of correctly instructed bag appellant’s finger- one removed and pre attempted members that the elements of box; prints on the meditated murder were: (4)
(1) Base, TSgt Moody’s testimony regarding That at or near Air Kadena Oki- nawa, Japan, May appre- or about 19 silence at the time of his acts, attempt accused did certain that is: hension.
201 (1) testimony about slaughter, the masking without held that the The court below silence, (2) masking tape, the appellant’s the knife, utility gloves and were not tape, latex (3) knife, utility the gloves, latex and the sufficiently appellant to to be rele connected counsel on improper of trial not contested comment has vant. The Government (4) silence, that the instruction of are it is lant’s and holding, and we satisfied that “ erroneous,” may that have exacerbated “clearly nor would ‘work argument. Ac- injustice’ parties were impact of counsel’s a manifest by Accordingly, it is the law of must the lower court’s cordingly, it.” we reverse bound Doss, 57 its respect Charge case. States v. MJ I and decision to with * (2002)(citing attempted premeditat- n. Christianson Colt specification, alleging 188 Corp., 486 U.S. Operating Industries ed murder. (1988)). 2166, 100 L.Ed.2d S.Ct. that The below concluded admission court light holding of our that (the tape, la- masking of irrelevant evidence proof of the sub- not admissible silence was knife) gloves, was harmless utility tex and offense, only remaining proof of stantive respect to beyond doubt with a reasonable attempt to kill appellant’s premeditated premeditated mur- charge attempted of bearing appel- Hefty garbage bags of the box However, that has not considered der. court testimony fingerprints, Mrs. Alameda’s lant’s error, effect of that whether the cumulative appellant put Hefty garbage tried to a of combined with errors constitutional head, bag and on Mrs. over her the abrasions Court, magnitude harm- found were Alameda’s neck. respect beyond less a reasonable doubt with aggravated of to the offenses lesser-included testimony entirely Mrs. Alameda’s by battery. assault assault consummated a attempted premeditated consistent with an Accordingly, we that a conclude remand hys- murder. testified that she became She 66(c), UCMJ, under further review Article house, appellant terical when came to the and 866(c), appropriate. §USC is down on and then sat a couch wanted talk. Alameda that he tried to Mrs. testified Decision to calm down. also testified that her She Air The of decision the United States she ran into the and after bedroom told Appeals Force of Criminal reversed Court is him, that she talk to would specification Charge with to I and its respect began stopped moving toward and her walk- respects, the sentence. In all other as to room, thereby ing living allowing toward the findings the decision below is affirmed. The through escape her to the bedroom window. specification guilty Charge I its of of Likewise, only remaining admissible are set aside. record sentence to kill the same evidence intent box Judge Gen- trial is returned Advocate Hefty bags garbage bearing fin- Air eral of the Force for remand the Court gerprints, the abrasions on Mrs. Alameda’s Appeals. court of Criminal That will review neck, testimony. in- her Her if the were to determine errors record cluded a statement both beyond a with reasonable doubt harmless sought strangle her suffocate with respect to the lesser-included offenses garbage bag, well as a statement premeditation or do not contain elements of appellant subsequently agreed to return to i.e., kill, aggravated intent assault talk, living at which she room time battery; by a assault consummated good escape. made factually remaining evidence whether the support considering legally sufficient to conviction
After
admissible evidence
kill,
premeditation
aggravated
assault or assault consummat-
and intent to
we are
by battery.
may
beyond a
ed
court
reassess
not satisfied
reasonable doubt that
rehearing.
As
sentence or order
sentence
the members would have convicted
murder,
attempted
review of
record
premeditated
the less-
an alternative
further
attempted unpremedi-
respect
to the
offenses
er-included offenses of
lesser-included
attempted voluntary
Charge
specification,
I and
the court
tated murder or
man-
its
*12
may
charge
rehearing
beyond
of
order
the
error was
harmless
reasonable
premeditated
attempted
case,
murder and the sen-
In
doubt.
this
the Government’s chal-
Thereafter,
67, UCMJ,
tence.
Article
10 lenge
by
is made all the more difficult
the
867,
apply.
§
will
USC
military judge’s
giving
comments.
of
Instead
instruction,
proper
military
curative
the
judge
argument by
validated trial counsel’s
EFFRON, Judge (concurring
part
in
opining that it
a “fair
was
comment
the
part):
in
dissenting
of
state
the evidence.”
case,
present
In the
trial
elicited
counsel
prejudicial impact
testimony concerning
of the
is un-
appellant’s post-appre-
error
silence,
by
hension
and then asked
court-
derscored
the
the fact that trial counsel did
appellant’s
martial members to view
silence
argument concerning
not limit his
“conscious-
reflecting
guilt.
agree
of
consciousness
I
guilt”
ness
to the element of intent. The
majority’s
with the
determination that trial
improper argument was
while'
made
trial
protections
counsel’s comments violated the
discussing appellant’s opportuni-
counsel was
against
self-incrimination in
Fifth
the
ty
commit
to
the attack on
It
his wife.
was
Const,
Amendment,
Y,
U.S.
amend.
Mil.
intent,
not restricted
to a demonstration
304(h)(3),
R.Evid.
Manual
Courts-Mar-
presented
but was
to the members as an
tial,
(2000 ed.),
United States
the
and that
admission that
attacked his wife on
prejudicial
comments were
with respect
to
19,
May
the
Given
breadth
the
premeditated
the charge
attempted
mur-
argument,
prejudicial
the
effect
is
limited
respectfully
majori-
der.
disagree with the
kill,
involving
to the offenses
intent to
but
ty’s suggestion
may
that
error
have been
arising
extends
all offenses
from the al-
with respect
harmless
lesser
included of-
leged attack.
fenses.
Excluding
appellant’s
evidence of
silence
In the face of such a constitutional viola-
and the other evidence determined to be
tion, the burden
the
is on
Government to
Ap-
inadmissible
the Court of Criminal
demonstrate that
the error was harmless
peals,
only remaining
guilt
evidence
beyond a reasonable doubt. See 57 MJ at
testimony
appellant’s
consisted
wife
(citing Chapman
California,
386 U.S.
strangle
Hefty
that he tried to
awith
18, 24,
824,
(1967)).
87 S.Ct.
reason was be- arrived, my back-up got After I A. out cause he had bedroom found condoms pretty I ap- vehicle and much groceries. his home when delivered the proached Airman Alameda. In route Appellant chap- also called friend from Alameda, approaching I Airman el, during p.m., at 2:09 of his course by just came van and I his kind chap- counseling visiting After session. try my rubbed hand across his van to lain, barracks, back went to the determine whether not the van van, sitting unloaded just operated. been was unable porch police barracks arrived at when van tell because the was hot and p.m. 4:00 day was a hot and I out was unable just tell whether the motor had been Appellant’s defense was countered alibi *14 running motor because the is encased. testimony Government with the neighbor, appellant’s who van near identified so, I approached And Airman Alame- p.m. witness, his house 3:30 around Another da and asked him he was Airman Young, Ms. Melanie Alamedas’ next door Alameda, and said that he he was. neighbor, screaming by heard followed fran- him, gentleman I The who was next to door, pounding tic on her front as well as just asked him if he could move out pounding neighbor’s shortly on another door way. Airman asked Alameda for p.m. Young hysteri- after 3:00 found Ms. prove an ID card to that he Air- was knocking crying cal Mrs. Alameda on doors man Alameda. He did show an ID me “[h]elp bruising Young me.” saw Ms. card. parts body, redness on various victim’s Q. any questions during Did he ask other open through as well which as the window this time? escaped the victim from her bedroom. Mrs. A. No. Young appellant Alameda told Ms. home, door, come knocked and then Q. say anything, Did he like ‘What do by choking
tried to kill her
her.
you
you
are
want? What
here for?”
anything
or
like that?
theory
case
Government’s
was
appellant
to kill
with-
intended
his wife
A. No.
being caught. Using
out
chaplain’s
coun-
Objection, Your Honor.
Irrelevant.
DC:
seling
part
session as an alibi was a
MJ: Overruled.
by
lant’s scheme. Another means utilized
avoiding
detection
the use
was
[Questions by assistant trial counsel]
gloves
preclude fingerprinting
of latex
Q.
any
Did he make
such statement as
masking tape
any
to muffle
sounds.1
that?
Appellant
charged
attempting
with
No, sir, he
A.
did not.
kill his wife.
before and
his ar-
Both
after
Drawing
colloquy,
from this
states:
rest, appellant
did
make
statement
that,”
Thus,
such as “I
not have
“I
could
done
question,
prosecutor
without
elic-
ask,
there,”
“Why
you arresting
wasn’t
officer,
are
arresting
ited
from the
During
questioning
Forces,
me?”
Security
of Technical
of the Air
member
Force
Sergeant
Moody,
Air
(TSgt)
[appellant]
a member of the
remained silent
he
after
Forces),
Security
(Security
placed
prosecutor
Force
Forces
under arrest. The
emphasized
argument
assistant
follow-
trial counsel conducted the
that fact
as
later
ing
guilt.
direct examination:
an indication
consciousness
Crawford,
van, S.J.,
C.J.,
joined by
dissenting).
1. This Court is not bound
the lower court's
knife,
utility
evidence,
masking tape,
decision that
latex
the
were
there
Even without this
is substantial
gloves
See
relevant evidence.
premeditated intent
evidence of the
to kill.
Walker,
(Sulli-
(2002)
United States v.
All thing? objection con- relevance A. He said— appellant’s silence before cerned answered, Objection. Asked and DC: Clearly, approach- placed under arrest. added.) (Emphasis Honor. Your nothing to Security ing Forces officer said it, you long move on. appellant other than I’ll allow as response from MJ: solicit a fact, identification card. to ask for his Yes, Q. Your Honor. of trial that there no evidence the record you Airman Q. would describe How his dor- anyone questioned appellant outside him after told Alameda’s reaction mitory evening. being placed under arrest? he was to, objected only matter previous again, just as in the A. Once relevance, was the assistant based contact where I had made situation re- concerning appellant’s questions counsel’s Alameda, he have Airman didn’t Security upon seeing the Forces offi- action *15 much at of a reaction or emotion much question and only after the last cer. It was all. TSgt Moody argu- quoted above that answer objec- raised two Trial defense counsel appellant under arrest. The tes- ably placed mili- “speculation.” The tions. The first was timony TSgt Moody examination on direct objec- essentially tary judge sustained continued as follows: by counseling trial counsel tion the assistant was, fact, Q. you After verified it Sen- questions what not to ask about Alameda, did ior Airman Tedio what However, purposes of thoughts were. for you do next? appeal, the issues he now raises on going A. I informed him that he was objection Trial was off the mark. de- lant’s apprehended alleged for an assault. be judge’s on the fense counsel did not comment say Q. what or do then? And did military judge ap- ruling ruled because objection. propriately on defense say anything. A. He didn’t do He didn’t anything. [witness He had a look like objection, “asked and an- The second and that was it. ahead] stared swered,” assistant after the occurred Moody Q. you why being TSgt said he ask he was counsel asked Did being anything he was arrested. arrested? while responded by telling the assis- A. No he did not. judge’s along. The tant trial counsel to move questions and answers drew no The above in re- ruling granted to the defense relief objection from trial defense counsel. objection. sponse specifically to the raised question- assistant trial counsel continued his Moody responded, appellant “didn’t TSgt ing: at a reaction or much emotion have much of (Counsel). Q. like he knew Did he act directly what He not comment all.” did going what was on? say. not appellant said or did Objection, Your Honor. Calls DC: for lengthy closing argument, In the Govern- added.) (Emphasis speculation. Special that when the ment mentioned came, why never asked Forces the defendant Again, you can ask him what he ob- MJ: Additionally, served, present. the Gov- him for were but can’t ask reference to the items types of whether ernment made those of conclusion gloves, knife and rubber found—the or not he did understand. alibi;5 tape—as guilt evidence of was with the consciousness case premeditated and a intent to murder. chaplain physically and it would have been him
impossible
attempt
for
kill his wife.
Appellant’s silence at the
un-
time of arrest
DISCUSSION
theory.
dermines
defense
His silence
both the direct
confirms
and circumstantial
MIL.R.EVID. 103
evidence that he committed
offense.
103(a)(1),
for
Mil.R.Evid.
Manual
Courts-
Martial,
(2000 ed.),
FIFTH AMENDMENT and ARTICLE 31
requires
United States
“timely objection
stating
specific
...
Amendment, swpm,
The Fifth
states: “No
objection,
ground
specific ground
if the
person
compelled
shall
...
criminal
apparent
from the context....”
against
ease to be witness
himself----”
“Further,
party
placed
[t]he burden is
31(d)
Likewise,
prohibits
Article
admis-
opponent
objection],
make
[to
not the
sion of statements obtained as a result of
judge.”2
Where the evidence
otherwise
Thus,
coercion or unlawful
inducement.
admissible,
judge’s
it is not
role to
re-
trial,
prosecution may
the evi-
use
proffer
quire a
to show that it is admissible.
stood mute. Miranda
dence that
Likewise,
general objection
the evi-
Arizona,
384 U.S.
n.
S.Ct.
dence is irrelevant will
Further-
not suffice.3
(1966).
1602,
admitted.
CONTRADICTION
Supreme
Court has
the is-
addressed
pre-arrest
post-arrest
sue of
silence and
si-
During
trial,
the
opening
from the
state-
Miranda
lence,
warnings.
through
ment
exami-
absent
While fed-
defense counsel’s
witnesses,
theory
split
nation
the
the defense’s
eral courts are
on the admission of
(1st Cir.1982)(relevance
Strong,
objection
2.
W.
John
1 McCormick
Evidence
220 n. 4
does
404).
(5th
1999).
preserve ruling
not
under Rule
§
at 220
ed.
52
Gomez-Norena, supra.
4. United States v.
See also
Sandini,
123,
3. United States v.
803
126-27
F.2d
Brewer,
43,
v.
47 n. 2
United
(1995)(failure
43 MJ
States
Cir.1986).
Adkins,
(3d
v.
See United
196
States
specific objection
to make
consti-
1112,
Cir.1999)(a
(10th
nonspecif
error).
F.3d
1116 n. 3
plain
tutes waiver absent
objec
objection
preserve
ic
does not
a Rule 403
36,
See,
Carolina,
e.g.,
v.
U.S.
5.
South
532
Shafer
Wilson,
243,
tion); United States v.
F.2d
966
1263,
(2001)(prosecu-
121 S.Ct.
207
evidence,6
post-arrest
The Court
silence
as
some have
addressed
silence
substantive
Jenkins,
Weir,
Following
v.
prosecutors
supra.
evi- Fletcher
allowed
to comment
such
silence,
Anderson,
absent Mi-
post-arrest
447
it held that
dence.
In Jenkins v.
U.S.
231, 238,
2124,
may
impeach
240,
warnings,
be used to
the
amI to make a deal out of nor in nature. testimonial communicative Thompson’s police judge response Mr. when the had the to exclude While the discretion evidence, objec- following especially proper [sic] come to door this shoot- after a tion, ing. going big absolutely I’m not to make deal there was no discre- abuse admit, failing you got it at all. But in to do so. about it’s tion circumstance, strange little under the have The trial counsel’s in this case comments there, police come in and the first response fair were a to the trial defense is, thing they’re going say hap- “What opening counsel’s statement and examination mean, pened?” “I I lawyer.” want a Shoff, of the witnesses. United States v. strange. way people that’s That’s not the (8th Cir.1998). 889, Additionally, in F.3d legitimate in circumstances that are are argument an 30 min- went more than going They probably to react. would be utes, appellant counsel’s statement happened; cop inclined to tell the what explanation straight made no and stared guy my apartment.” “This broke into ahead, only passing not re- reference happened. again, of that None But then See, quiring e.g., a reversal of the conviction. Thompson. is Mr. Sidwell, 262, United States 51 MJ (1999). n. 7. After noting split Id. at federal courts the issue of silence as substantive Certainly, appellant’s undercuts reaction evidence, the Ninth held that Circuit theory throughout the defense’s the case that prosecutor’s plain comment was not error. fact, appellant nothing to hide. (citing v. Davenport,
Id. at
United States
recognized
impact
lant
be-
his silence
(7th Cir.1991)).
1169, 1174-75
929 F.2d
day
next
cause the
told his escorts was
chaplain’s
at the
office at the time of the
us, TSgt Moody
In the case before
testi-
offense,
why
being
and wondered
he was
say anything
fied that
did not
like
pretrial
placed in
He
confinement.
could
want?”,
you
do
“What
are
“What
here
earlier,
day
have
that one
did not.
said
but
However,
Moody
TSgt
for?”
did describe
appellant’s demeanor.
if he
Asked
reacted
HARMLESS ERROR
way,
the witness indicated that
overwhelming.
The evidence
this case is
[straight]
“stared
ahead.”
majority recognizes
may
an
rights
individual
When
has received
very
guilty
well
of a lesser-included of-
warnings
right
and told of the
remain
fense,
improperly
lower
assumes the
silent, silence becomes an
act.
It
intentional
66(c), UCMJ, 10
court’s Article
USC
right.
privi-
is the exercise of one’s
But the
866(c),
§
findings
role and
that are
makes
against
lege
“protects
self-incrimination
equivalent
findings
pre-
regarding
of fact
only
being
testify
from
compelled
accused
meditation
intent
kill. The
himself,
against
...
provide
otherwise
evi-
admitted at
in-
evidence
trial of
of a testimonial
dence
or communicative na-
greater
tent to kill his wife is far
than the
...”
California,
ture.
Schmerber v.
384 U.S.
majority opinion
particularly
indicates.
am
86 S.Ct.