61 M.J. 445 | C.A.A.F. | 2005
Lead Opinion
delivered the opinion of the Court.
INTRODUCTION
Senior Airman (SrA) John Daugherty made a confession that implicated both himself and Appellant in drug offenses. About five months after confessing, SrA Daugherty spoke to Appellant and Appellant’s defense counsel, then signed an affidavit claiming he no longer remembered Appellant’s involvement in the offenses. He testified at Appellant’s trial and was subject to cross-examination, but continued to claim a lack of memory. This appeal concerns whether the admission of his confession violated Appellant’s confrontation rights or the bar against hearsay evidence. We hold that Appellant’s confrontation rights were satisfied because SrA Daugherty took the stand and was subject to cross-examination. We also hold that his confession was properly admitted under the hearsay exception for statements against interest. But we reverse the affected findings and the sentence because the military judge erroneously allowed the Government to suggest that Appellant was at fault for SrA Daugherty’s memory loss.
BACKGROUND
At his court-martial, Appellant entered mixed pleas. The charges and specifications at issue in this appeal alleged violations of Article 112a of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a
As the Air Force Court observed, “This case arose from an investigation of drug abuse at Yokota Air Base, Japan, involving several military members.”
SrA Daugherty later testified that the following events occurred four-and-a-half months after his confession. Appellant approached him in SrA Daugherty’s quarters and asked SrA Daugherty to speak with his defense counsel. SrA Daugherty testified that when he asked why, Appellant replied that he could not tell him. SrA Daugherty also testified that Appellant neither suggested he should forget what happened nor asked him to lie. Appellant gave SrA Daugherty the area defense counsel’s telephone number. SrA Daugherty called and spoke to the area defense counsel over the telephone. SrA Daugherty later went to the defense counsel’s office, unaccompanied by Appellant. At the defense counsel’s office, SrA Daugherty signed an affidavit claiming that he no longer remembered the details of the mushroom purchase. The affidavit specifically stated, “It was likely that Brad never did go with me” to purchase mushrooms. SrA Daugherty testified that no defense counsel stated or implied that he should not tell the truth. SrA Daugherty also testified that he and Appellant never discussed the affidavit after he executed it.
To place the events in their temporal order, we note that Appellant’s alleged psilocyn use and possession occurred around December 1999 to January 2000. SrA Daugherty confessed on July 21,2000. SrA Daugherty’s affidavit claiming that he no longer remembered Appellant’s involvement in the offenses was dated December 6, 2000. Appellant’s court-martial then occurred in late March and early April of 2001.
At trial, the Government filed a motion in limine seeking a ruling on the admissibility of SrA Daugherty’s confession. The defense also filed a motion in limine seeking to exclude any evidence suggesting that Appellant “was charged with or otherwise suspected of obstructing justice in regards to ... SrA John Daugherty.”
During a hearing on the motions, both SrA Daugherty and the OSI agent who interrogated him testified. SrA Daugherty stated that he was “sure” he was telling the truth when he confessed, but he claimed to “have forgotten” most of the events that his confession describes. He also testified that he no longer remembered whether Appellant went with him to purchase the mushrooms. The military judge summarized SrA Daugherty’s testimony with the observation that while he remembered some of his own misconduct, he claimed to no longer “remember any drug use or involvement that could be attributable” to Appellant.
When the military judge asked SrA Daugherty what he thought the consequences of his confession would be, his immediate response was “Leavenworth.” He later explained that he thought there was a “very good possibility” that he would be confined as a result of his confession.
The military judge made what the Air Force Court aptly called “extensive findings of fact and conclusions of law.”
The military judge also denied the defense’s motion to preclude evidence suggesting that Appellant had obstructed justice by asking SrA Daugherty to change his testimony. The military judge applied the three-part test established by United States v. Reynolds
During his opening statement, the trial counsel discussed SrA Daugherty’s claimed inability to remember Appellant’s involvement in the offenses. The trial counsel told the members that “the accused asked Airman Daugherty to go see his lawyer. You’re going to hear that within hours, Airman Daugherty lost his memory.” The trial counsel contended that while “Airman Daugherty will tell you that his loss of memory of all these incidents has nothing to do with the visit of the accused[,][t]he evidence will demonstrate differently. The evidence will prove that the accused encouraged in some fashion Airman Daugherty to forget this evidence.” The trial counsel told the members that “[tjhis is consciousness of guilt.”
SrA Daugherty testified during the Government’s case. SrA Daugherty “identified his hand-written confession and testified that he gave the statement under oath.”
Before counsel made their closing arguments, the military judge instructed the members concerning the “[ejvidence that the accused may have contributed to Senior Airman Daugherty’s lack of present memory.” He told the members that this evidence “may be considered by you for the limited purpose
[A]n accused has a right to assist in his own defense. This right includes the ability to assist his counsel in securing evidence and witnesses for use in the defense of the case. An accused may also interview witnesses and request that witnesses meet with the defense counsel. In sum, there is nothing improper per se in an accused meeting with potential witnesses and arranging meetings for them with his lawyer.
If you find that the accused did indeed influence Senior Airman Daugherty, you may not consider this evidence for any other purpose and you may not conclude from this evidence that the accused is a bad person or has criminal tendencies and that he, therefore, committed the offenses charged.
During his closing argument, the trial counsel referred to Appellant’s “sham visit” to SrA Daugherty. The trial counsel elaborated:
[T]he accused went on a personal visit here to meet with Airman Daugherty. And, inexplicably within hours of that meeting, within hours of that personal and up close invitation to go see his lawyer, Airman Daugherty’s memory goes poof and disappears. Members, I don’t know how to state the obvious any more clearly, but this unscrupulously, unusual visit. This preposterous memory loss could not be anymore indicative of the accused’s statement, an approach of, “I just wish we could have stuck together better.” Airman Daugherty and the accused came to an agreement of some sort, of some fashion; we may never know. But, there’s an agreement here somewhere to hang together or, as they say, hang separately ____ Airman Daugherty, it was very clear, he is lying through his teeth on this alleged memory loss.
As previously noted, the members ultimately found Appellant guilty of the use and possession of psilocyn.
DISCUSSION
A. Confrontation
The first issue before us is whether the admission of SrA Daugherty’s statement violated Appellant’s Sixth Amendment right “to be confronted with the witnesses against him.”
This issue is controlled by the Supreme Court’s opinion in United States v. Owens.
If the ability to inquire into these matters suffices to establish the constitutionally requisite opportunity for cross-examination when a witness testifies as to his current belief, the basis for which he cannot recall, we see no reason why it should not suffice when the witness’ past belief is introduced*450 and he is unable to recollect the reason for that past belief.22
The Court added that “[t]he weapons available to impugn the witness’ statement when memory loss is asserted will of course not always achieve success, but successful cross-examination is not the constitutional guarantee. They are, however, realistic weapons ”
The Supreme Court’s later decision in Crawford v. Washington
The defense seeks to rely on a statement in footnote 9 of the Crawford opinion that the Confrontation Clause “does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.”
Several courts have held that Justice Scalia’s opinion for the Court in Crawford did not overrule Justice Scalia’s opinion for the Court in Owens.
B. Statement Against Interest
Having determined that the admission of SrA Daugherty’s statement did not violate the Confrontation Clause, we must now determine whether it was properly admitted under the hearsay exception for statements against interest.
It seems counterintuitive that a witness who professes no memory of an event described in an earlier statement is available for confrontation purposes but unavailable for hearsay purposes. Yet that is the law. M.R.E. 804 provides certain hearsay exceptions where the declarant is unavailable. That rule expressly defines “unavailability” to include situations where the declarant “testifies to a lack of memory of the subject matter of the declarant’s statement.”
As the Air Force Court correctly observed, “The rule ‘is founded on the commonsense notion that reasonable people, even reasonable people who are not especially honest, tend not to make self-inculpatory statements unless they believe them to be true.’ ”
The Supreme Court has stressed that “whether a statement is self-inculpatory or not can only be determined by viewing it in context.”
We agree with the Air Force Court’s well-reasoned conclusion that under the circumstances of this case, the portions of SrA Daugherty’s confession that implicated Appellant were self-inculpatory. As Justice Scalia noted in his concurring opinion in Williamson, “a declarant’s statement is not magically transformed from a statement against penal interest into one that is inadmissible merely because the declarant names another person or implicates a possible codefen-dant.”
The portions of SrA Daugherty’s confession in which he admitted buying psilocyn mushrooms, taking them onto base, using them, and providing them to others were clearly self-incriminatory.
In Williamson, the Supreme Court emphasized that “[t]he question under Rule 804(b)(3) is always whether the statement was sufficiently against the declarant’s penal interest ‘that a reasonable person in the de-clarant’s position would not have made the statement unless believing it to be true.’ ”
C. Uncharged Misconduct
Shortly before SrA Daugherty executed an affidavit claiming to have forgotten Appellant’s involvement in the psilocyn mushroom purchase, Appellant had sought him out in his quarters to ask him to speak with his defense counsel. The final issue in this case
The admissibility of uncharged misconduct is governed by the three-part Reynolds test. That three-part test asks:
1. Does the evidence reasonably support a finding by the court members that appellant committed prior crimes, wrongs or acts?
2. What “fact ... of consequence” is made “more” or “less probable” by the existence of this evidence?
3. Is the “probative value ... substantially outweighed by the danger of unfair prejudice”?45
If any one of the three parts is not met, the evidence is not admissible.
Writing for the Second Circuit, Judge Friendly has explained why a change in a witness’s recollection is, by itself, insufficient to support an inference of wrongdoing by the party who benefited from the change:
If a witness who once professed testimonial knowledge favorable to the proponent denies this knowledge on the stand, the mind asks what caused the change and recognizes that wrongful pressure from the opponent might be the explanation. Intimidation of the witness would, of course, be independently relevant, and proof of this admissible. But mere failure of a witness to repeat a prior statement helpful to the proponent gives an exceedingly slight basis for drawing the inference. The first statement itself may have been wrong and the oath or the prospect of cross-examination may have led the witness spontaneously to correct it; if the opponent had spoken to the witness, he can as well have been asking information as giving directions; or the witness may simply have forgotten____47
As Judge Friendly suggests, in any given case there may be alternative explanations for a witness’s memory loss.
In this case, the evidence’s probativeness of misconduct by Appellant is further undermined by SrA Daugherty’s testimony that Appellant had nothing to do with his memory loss. On the one hand, the Government’s case on the psilocyn specifications rested on SrA Daugherty’s confession and his in-court testimony of forgetfulness that was necessary for the confession to be admitted under M.R.E. 804. SrA Daugherty’s testimony that he was sure he was telling the truth when he confessed was also highly damaging to the defense. On the other hand, concluding that Appellant was complicit in SrA Daugherty’s memory loss would require disbelieving a portion of SrA Daugherty’s in-court testimony. Under the peculiar facts of this case, the military judge clearly abused his discretion
We do not hold that the military judge erred by allowing the Government to present evidence concerning Appellant’s meeting with SrA Daugherty the day before SrA Daugherty signed the affidavit claiming memory loss. This evidence provided the members with important background information concerning SrA Daugherty’s claimed memory loss. The fact that the meeting took place was an appropriate matter for the members to consider. For example, the meeting might have induced SrA Daugherty to falsely claim loss of memory due to feelings of remorse over betraying a friend. But the military judge erred by admitting the evidence for the improper purpose of demon
The military judge compounded this error by instructing the members that they could consider this evidence “for the limited purpose of its tendency, if any, to show the accused’s awareness of his guilt of the psilo-cyn allegations.” “When evidence is admitted under Rule 404(b), the [members] must be clearly, simply, and correctly instructed concerning the narrow and limited purpose for which the evidence may be considered.”
Having determined that the military judge erred by allowing the Government to use this evidence to suggest Appellant’s consciousness of guilt, we must determine whether that error prejudiced Appellant. ‘Where error is founded on a violation of Rule 404(b), the test for harmlessness is “whether we can say with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.’ ”
The “natural effect” of the way the trial counsel used the uncharged misconduct evidence case was certainly prejudicial. The Government used the evidence to suggest Appellant’s guilt of the underlying offense and the military judge’s instructions expressly allowed the members to use the evidence for that purpose. Additionally, the Government’s case concerning the psilocyn mushroom offenses rested almost solely on SrA Daugherty’s pretrial statement. So the Government’s case was certainly not overwhelming. The suggestion that Appellant suborned perjury could have been crucial to the outcome. Finally, the trial counsel extensively used the alleged uncharged misconduct in both opening statement and closing argument. Accordingly, the Government has not carried its burden to persuade us that the erroneous use of this evidence was harmless.
DECISION
The portions of the United States Air Force Court of Criminal Appeals’ decision affirming the findings of guilty to the Charge and its specification (use of psilocyn), specification 2 of Additional Charge I (possession of psilocyn), and the sentence are reversed. Those findings and the sentence are set aside. The portions of the Air Force Court of Criminal Appeals’ decision affirming the findings of guilty to Additional Charges II and III and their specifications (larceny and disorderly conduct) are affirmed. The record is returned to the Judge Advocate General of the Air Force. A rehearing on the Charge and its specification and specification 2 of Additional Charge I and the sentence is authorized. If a rehearing on these charges and specifications is not practicable, a rehearing on the sentence for the affirmed findings may be held.
. We heard oral argument in this case at the University of North Dakota School of Law, Grand Forks, North Dakota, as part of the Court’s "Project Outreach.” See United States v. Mahoney, 58 M.J. 346, 347 n. 1 (C.A.A.F.2003).
. 10 U.S.C. § 912a (2000).
. Appellant pleaded guilty to larceny and disorderly conduct.
. United States v. Rhodes, No. ACM 34697, 2004 CCA LEXIS 42, 2004 WL 388964 (A.F.Ct.Crim.App. Feb. 24, 2004).
. United States v. Rhodes, 60 M.J. 378 (C.A.A.F.2004)(order granting review).
. Rhodes, 2004 CCA LEXIS 42, at *2, 2004 WL 388964, at *1.
. 2004 CCA LEXIS 42, at *3, 2004 WL 388964, at *1.
. 2004 CCA LEXIS 42, at *4, 2004 WL 388964, at *2.
. 29 M.J. 105 (C.M.A.1989).
. Rhodes, 2004 CCA LEXIS 42, at *5-*6, 2004 WL 388964, at *2.
. 2004 CCA LEXIS 42, at *6, 2004 WL 388964, at *2.
. Id.
. Id.
. Id.
. Id.
. Id.
. U.S. Const. amend. VI.
. 484 U.S. 554, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988).
. Id. at 559, 108 S.Ct. 838 (alteration in original) (quoting Kentucky v. Stincer, 482 U.S. 730, 739, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987)).
. Id.
. Id. (internal citations omitted).
. Id.
. Id. at 560, 108 S.Ct. 838.
. 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
. Id. at 59 n. 9, 124 S.Ct. 1354.
. Id.
. See, e.g., People v. Argomaniz-Ramirez, 102 P.3d 1015 (Colo.2004); Mercer v. United States, 864 A.2d 110, 114 n. 4 (D.C.2004); People v. Sharp, 355 Ill.App.3d 786, 292 fil.Dec. 118, 825 N.E.2d 706 (2005).
. M.R.E. 804(a)(3).
. M.R.E. 804(b)(3).
. Rhodes, 2004 CCA LEXIS 42, at *9, 2004 WL 388964, at *4 (quoting Williamson v. United States, 512 U.S. 594, 599, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994)).
. 2004 CCA LEXIS 42, at HO, 2004 WL 388964, at *4 (quoting Williamson, 512 U.S. at 600-01, 114 S.Ct. 2431).
. Carson v. Peters, 42 F.3d 384, 386 (7th Cir.1994).
. Williamson, 512 U.S. at 603, 114 S.Ct. 2431.
. Id. at 604, 114 S.Ct. 2431.
. Id. at 606, 114 S.Ct 2431 (Scalia, J., concurring).
. Rhodes, 2004 CCA LEXIS 42, at *12-T3, 2004 WL 388964, at *5.
. 2004 CCA LEXIS 42, at *13, 2004 WL 388964, at *5.
. Id.
. Id.
. Id.
. Id.
. Id.
. 2004 CCA LEXIS 42, at *13-*14, 2004 WL 388964, at *5.
. 512 U.S. at 603-04, 114 S.Ct. 2431.
. Reynolds, 29 MJ. at 109 (citations omitted).
. United States v. Cousins, 35 M.J. 70, 74 (C.M.A.1992).
. Taylor v. Baltimore & Ohio R.R. Co., 344 F.2d 281, 284 (2d Cir.1965) (internal citation omitted).
. See United States v. Browning, 54 M.J. 1, 7 (C.A.A.F.2000).
. United. States v. Jobson, 102 F.3d 214, 222 (6th Cir.1996) (internal quotation marks and citation omitted).
. United States v. Madden, 38 F.3d 747, 753 (4th Cir.1994) (quoting United States v. Nyman, 649 F.2d 208, 211-12 (4th Cir.1980)); see Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).
. United States v. Pollard, 38 M.J. 41, 52 (C.M.A. 1993) (quoting Kotteakos, 328 U.S. at 760, 66 S.Ct. 1239).
. Id.
Concurrence in Part
(concurring in part and dissenting in part):
Although I concur with the majority on Issues I and II, I respectfully dissent on
FACTS
The relevant facts in this case are as follows. A key Government witness, Senior Airman (SrA) Daugherty, produced a handwritten statement to Office of Special Investigations (OSI) implicating Appellant with regards to illegal drug use and possession. Four-and-a-half months later, SrA Daugherty was personally approached in his quarters by Appellant. On the following day, it was discovered by Appellant’s defense counsel that Daugherty was suffering from memory loss and could no longer attest to the accuracy of his original confession. In a new affidavit prepared by defense counsel, SrA Daugherty recanted, stating: “It was likely that [Appellant] never did go with me” to purchase drugs. In response, the Government sought to introduce evidence that Appellant influenced the witness — primarily that Appellant met with him just prior to the claimed memory loss. Ultimately, the judge admitted this evidence pursuant to Military Rule of Evidence (M.R.E.) 404(b), which is exactly the same as Federal Rule of Evidence (Fed.R.Evid.) 404(b). The Government argued to the members that Appellant obstructed justice by influencing SrA Daugherty, and that such acts were indicative of Appellant’s consciousness of guilt. Appellant was subsequently convicted of drug use and possession. The issue at hand questions the military judge’s decision to admit evidence of Appellant’s undue influence on the witness.
DISCUSSION
When determining admissibility, the military judge correctly applied the test set forth in Reynolds, which requires, in this case, that (1) the evidence reasonably supports a finding that Appellant committed prior crimes, wrongs, or acts, (2) that the evidence increases the likelihood that Appellant is guilty of the drug offenses brought against him, and (3) the probative value of the evidence is not substantially outweighed by unfair prejudice.
Our Reynolds opinion was decided after Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), but interestingly enough, did not directly cite Huddleston.
Huddleston provides that “Rule 404(b) ... evidence is relevant only if the jury can reasonably conclude that the act occurred and that the defendant was the actor.” Id. at 689, 108 S.Ct. 1496. This is the first prong of our Reynolds test.
The second prong of Reynolds does not deviate from Huddleston. “The threshold inquiry ... is whether that evidence is probative of a material issue other than character.” Id. at 686, 108 S.Ct. 1496. The Court goes on to recognize that Fed.R.Evid. 401 and 402 (like M.R.E. 401 and 402) “establish the broad principle that relevant evidence— evidence that makes the existence of any fact at issue more or less probable — is admissible unless the Rules provide otherwise.” Id. at 687, 108 S.Ct. 1496.
The third prong of Reynolds is likewise discussed in Huddleston. In its discussion of the danger of undue prejudice, the Supreme Court stated, “The House made clear that the version of Rule 404(b) which became law was intended to ‘plac[e] greater emphasis on admissibility than did the final Court version.’” Id. at 688, 108 S.Ct. 1496. The Court continued:
The Senate echoed this theme: “[T]he use of the discretionary word ‘may’ with respect to the admissibility of evidence of crimes, wrongs, or other acts is not intended to confer any arbitrary discretion on the trial judge.” S.Rep. No. 93-1277, ... at 24. Thus, Congress was not nearly so concerned with the potential prejudicial effect of Rule 404(b) evidence as it was with ensuring that restrictions would not be placed on the admission of such evidence.
Id. at 688-89, 108 S.Ct. 1496.
When using the Reynolds test, it is necessary to recognize the difference between the
Beginning with Prong I of the Reynolds test, the meeting between Appellant and SrA Daugherty strongly suggests that Appellant unduly influenced him to recant his original statement. Soon after their meeting, the witness forgot the details of a hand-written statement, even while he and others were being prosecuted based on the statement’s details. Not only did the witness forget a set of events that were seemingly central and fresh in his mind, but this memory loss was also discovered by defense counsel only a day after Appellant visited SrA Daugherty. Arguing that such facts are insufficient to support a finding that Appellant influenced SrA Daugherty to recant tests the bounds of coincidence when one considers the details of the events, the timing of the visit, and the subsequent lapse of memory.
Nevertheless, the majority has misgivings about the relevance of this evidence. The majority posits an alternate explanation for the memory loss, noting that the meeting might have induced SrA Daugherty to recant “due to feelings of remorse over betraying a friend.” United States v. Rhodes, 61 M.J. at 452 (C.A.A.F.2005). Aside from being unlikely, such alternatives are irrelevant because “the trial court neither weighs credibility nor makes a finding that the Government has proved the conditional fact by a preponderance of the evidence. The court simply ... decides whether the jury could reasonably find the conditional fact” — here, that Appellant prompted the witness to claim memory loss. Huddleston, 485 U.S. at 690, 108 S.Ct. 1496 (emphasis added); see also United States v. Mirandes-Gonzalez, 26 M.J. 411, 413-14 (C.M.A.1988). Indeed, M.R.E. 104(b) notes that “[wjhen the relevancy of evidence depends upon the fulfillment of a condition of fact, the military judge shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.” Emphasis added. The meeting between Appellant and the witness is a strong circumstantial indication of undue influence, and is clearly relevant under this standard. Weighing the evidence against alternative explanations and counter-evidence is inappropriate because such is the role of the members. Defense counsel’s arguments and use of contrary testimony were simply unpersuasive, and it is not the place of this Court to second-guess the members’ findings.
Curiously, the majority uses a lengthy quotation from Taylor v. Baltimore & Ohio R.R. Co., 344 F.2d 281 (2d Cir.1965), to argue that the evidence is too speculative to be admitted. In Taylor, a civil action under the Federal Employer’s Liability Act, a witness had originally provided a statement in a way that benefited the plaintiff. At trial five years later, this same witness could not recall his original statement — a loss in memory that critically damaged the plaintiff’s case. In the opinion, Judge Friendly discussed the plaintiffs potential argument that the defendant tampered with the witness:
[I]f the opponent had spoken to the witness, he can as well have been asking information as giving directions; or the witness may simply have forgotten — a fair possibility here, when over five years had intervened between the accident and the trial. The basis for an inference of intimidation is extremely weak as against the danger that if the statement is admitted, the jury will use it substantively regardless of what the judge may say.
Id. at 284. Not only are the facts in Taylor distinguishable from the present case, its holding also conflicts with the majority decision.
First, aside from being a Second Circuit civil case from the 1960s, the facts in Taylor are critically different. In Taylor, the memory loss occurred over a period of five years, a fact omitted by ellipsis from the majority’s quote. 61 M.J. at 452. Furthermore, Judge Friendly’s commentary did not assume the present situation, where a meeting occurs
Second, the majority opinion is inconsistent with Taylor. Under its set of facts, the court in Taylor would have found evidence of witness tampering to be completely inadmissible due to the risk of confusing the jury. In contrast, the majority creatively deems such evidence admissible while also condemning its use in the Government’s arguments and the jury instruction. While the meeting was “important background information” that helps explain SrA Daugherty’s loss of memory, they would not allow the Government or the jury to consider the notion that Appellant actually caused the recantation. Hence, the majority would admit the same evidence described in Taylor but require that nobody mention its obvious inference, thereby disregarding Judge Friendly’s caution that “the jury will use [the evidence] substantively regardless of what the judge may say.” Id. at 284. Considering its distinguishing characteristics and apparent misapplication, Taylor sheds but a glimmer of guiding light on the case at hand and only illustrates an extreme instance where no circumstantial evidence existed from which to infer undue witness influence.
In sum, the first prong of the Reynolds test is satisfied because evidence of a highly coincidental meeting between Appellant and SrA Daugherty is relevant, and reasonably supports the finding that Appellant influenced the recantation.
While not actively disputed, the second prong of the Reynolds test requires that the evidence increase the likelihood that Appellant is guilty of the drug offenses brought against him. Here, the evidence indicates that Appellant was aware of his wrongdoings and was attempting to influence a witness to reach a favorable conclusion at trial. Appellant’s consciousness of guilt would make it more likely that he committed the alleged drug offenses, and the second prong is thereby satisfied.
The third prong of the Reynolds test requires that evidence be excluded if it is substantially more prejudicial than probative. See M.R.E. 403. First, the probative value of the meeting between Appellant and the witness is very high given the nature of this case. Generally, evidence of consciousness of guilt is very probative and “second only to a confession in terms of probative value.” United States v. Meling, 47 F.3d 1546, 1557 (9th Cir.1995). In this ease, such evidence is critically important to the Government. As the majority notes, “the Government’s case concerning the psilocyn mushroom offenses rested almost solely on SrA Daugherty’s pretrial statement.” 61 M.J. at 453. Given the convenient and coincidental nature of the memory loss, evidence suggesting that Appellant spoiled SrA Daugherty’s statement is very probative and central to the Government’s ability to prove guilt.
Second, the risk of unfair prejudice is slight. To analyze prejudice, this Court must determine to what degree the evidence may mislead, interfere with, or confuse the members in assessing the principal charges. See M.R.E. 403; United States v. Kinman, 25 M.J. 99 (C.M.A.1987) (applying M.R.E. 403 to introduction of uncharged misconduct evidence). See also Taylor, 344 F.2d at 284. Acts showing consciousness of guilt are unique from other forms of uncharged misconduct in that they almost always directly relate to the charges at hand — which may explain why it is difficult to articulate any
In applying the third prong of the Reynolds test, the majority asserts that the prejudicial value of the meeting substantially outweighs its probative value pursuant to M.R.E. 403. M.R.E. 403 is a rule of evidence, not a rule of argument. It speaks to the admissibility of the evidence alone. The majority applies the third prong against the “erroneous use of this evidence” instead of its admission. 61 M.J. at 453 (emphasis added). It goes without saying that the use of damaging evidence will be extremely prejudicial to the defendant’s liberty interest, “as is most good prosecution evidence.” Reynolds, 29 M.J. at 109. This does not make the evidence itself unfairly prejudicial or inadmissible. In the present case, the meeting between Appellant and SrA Daugherty on the day before his memory loss directly implies that Appellant influenced him. This evidence did not suddenly transform when the Government argued this theory or when the military judge used it in an instruction.
While the meeting made Appellant appear more guilty in the instant case — as is the purpose of such evidence — this is not an example of unfair prejudice. The evidence’s probative value is not mitigated by the testimony of SrA Daugherty “that Appellant had nothing to do with his memory loss.” 61 M.J. at 452. The testimony must be weighed against his prior statements and in the context of his conversation with Appellant. SrA Daugherty’s testimony is an insufficient basis for a legal conclusion of inadmissibility because the evaluation of this conflicting evidence is left to members. Thus, the third prong of the Reynolds test is more than satisfied, as the probative value of the evidence outweighs any potential prejudice.
I therefore agree that the military judge’s application of the Reynolds-Huddleston test was not an abuse of discretion. “A military judge’s ruling on admissibility of evidence ... will not be overturned on appeal ‘absent a clear abuse of discretion.’ ” United States v. Johnson, 46 M.J. 8, 10 (C.A.A.F.1997) (quoting United States v. Redmond, 21 M.J. 319, 326 (C.M.A.1986)). This Court’s split on this issue indicates that reasonable minds can disagree on whether to allow such evidence under these circumstances. Even so, simple disagreement is not sufficient to overturn the military judge’s decision:
[A]n abuse of discretion involves far more than a difference in judicial opinion ... The challenged action must ... be found to be “arbitrary, fanciful, clearly unreasonable,” or “clearly erroneous” in order to be invalidated on appeal. If, on the other hand, reasonable [minds] could differ as to its propriety, then it cannot be said that the trial judge abused his discretion.
United States v. Glenn, 473 F.2d 191, 196 (D.C.Cir.1972) (internal citations omitted). Accord United States v. Travers, 25 M.J. 61, 62-63 (C.M.A.1987) (citing Glenn, 473 F.2d at 196). This Court has recently stated that an abuse of discretion occurs only when findings of fact are clearly erroneous, when incorrect law is applied, or when the law is applied incorrectly. United States v. Roberts, 59 M.J. 323, 326 (C.A.A.F.2004). Here, the military judge’s decision is not an abuse of discretion because the correct legal test was applied against a set of undisputed facts. The military judge concluded that “the members could reasonably find that the uncharged misconduct occurred” based on the circumstantial evidence, that the evidence increased the probability of Appellant’s guilt, that the probative value was high given the coincidental nature of the memory loss, and that any risk of prejudice could be cured by
I would therefore affirm the judgment of the United States Air Force Court of Criminal Appeals.
Concurrence in Part
(concurring in part and dissenting in part):
I concur in the resolution of Issues I and II regarding Staff Sergeant Rhodes’s Sixth Amendment rights and the admissibility of Senior Airman Daugherty’s statement under Military Rule of Evidence (M.R.E.) 804(b)(3). I write separately because I cannot agree that the military judge abused his discretion by admitting evidence of Rhodes’s uncharged misconduct.
The majority correctly asserts that evidence of uncharged misconduct must be evaluated using the three-part test set out in United States v. Reynolds, 29 M.J. 105, 109 (C.M.A.1989):
1. Does the evidence reasonably support a finding that appellant committed pri- or crimes, wrongs or acts?
2. What “fact of consequence” is made more or less probable by the existence of the evidence?
3. Is the probative value of the evidence substantially outweighed by the danger of unfair prejudice?
Here, there was circumstantial evidence that Rhodes may have played a role in Daugherty’s convenient memory loss. At first, Daugherty remembered Rhodes buying and taking drugs. Later, following a personal visit from Rhodes, Daugherty told defense counsel that he could no longer remember whether or not Rhodes had been involved. Presented with this evidence, reasonable members could certainly conclude that Rhodes had influenced Daugherty’s forgetfulness.
Next, to the extent that the members believed that Rhodes influenced Daugherty to forget what he had written in his confession to the Office of Special Investigations, that evidence makes it more probable that Rhodes was guilty and was trying to cover up his misdeeds. The majority relies on Taylor v. Baltimore & Ohio R.R. Co., 344 F.2d 281 (2d Cir.1965), for the proposition that this evidence was too speculative to support an inference of wrongdoing. In Taylor, a witness provided a written statement prior to trial that he had seen a particular accident. At trial, however, he testified that “I heard something, that’s all.” Id. at 283. The case did not involve a complete memory loss of the event and there was no evidence that a party to the lawsuit met with the witness immediately prior to the memory loss.
Ultimately, the admissibility of evidence concerning Rhodes’s visit to Daugherty’s barracks room comes down to the balancing test set out in M.R.E. 403 — is the evidence substantially more prejudicial than probative? The question here is not whether or not this court views the potential prejudice to Rhodes as substantially outweighing the probative value of the evidence. The question is whether the military judge’s conclusion that the evidence would not unduly inflame the passions of the members or cloud their judgment was arbitrary, fanciful, clearly unreasonable, clearly untenable or clearly erroneous. See United States v. Williams, 37 M.J. 352, 356 (C.M.A.1993); United States v. Travers, 25 M.J. 61, 62 (C.M.A.1987).
This court has previously held that, “[a] military judge abuses his discretion when his findings of fact are clearly erroneous, when he is incorrect about the applicable law, or when he improperly applies the law.” United States v. Roberts, 59 M.J. 323, 326 (C.A.A.F.2004). There are no findings of fact at issue here and there is no dispute that the military judge used the correct legal test. It is his application of the law to the facts and his conclusion that the majority questions. But as this court has previously explained, “To reverse for ‘an abuse of discretion involves far more than a difference in ... opinion Travers, 25 M.J. at 63 (quoting United States v. Yoakum, 8 M.J. 763 (A.C.M.R.1980), aff'd on other grounds, 9 M.J. 417 (C.M.A.1980) (internal citation omitted)).
