United States v. Cousins

CRAWFORD, Judge

(dissenting):

The majority cites MiLR.Evid. 401, 402, and 403, Manual for Courts-Martial, United States, 1984, and United States v. Reynolds, 29 MJ 105, 109 (CMA 1989), for the proposition that admissibility of uncharged misconduct is determined by applying a three-pronged test: (1) “Does the evidence reasonably support a finding by the court members that appellant committed prior crimes, wrongs, or acts?” (2) Does the evidence make a “fact ... of consequence ... more ... or less probable”? and (3) is the “probable value” of the evidence “substantially outweighed by the danger of unfair prejudice”?

The majority then “tests” Airman Vith’s testimony against these three standards; finds it fails tests 2 and 3; refuses to apply waiver; and finds plain error. I respectfully disagree.

*76Beginning with voir dire, appellant raised the affirmative defense of innocent ingestion, thereby placing his state of mind at issue. In support of this defense two witnesses were called: One witness testified that appellant was upset when he saw other airmen using drugs; the other testified that she slipped cocaine into appellant’s drink without his knowledge. The Government had the burden of proving that appellant knowingly used cocaine. Trial counsel used the testimony of Airman Yith to rebut the defense’s innocent-ingestion theory by disclosing information making the likelihood of innocent ingestion “less probable.”

Appellant was proved to frequent a known “drug” house where various controlled substances were used and sold. These substances included marijuana, methamphetamines, cocaine, and heroin. It is unquestionably relevant to the crime charged that appellant was seen “doing drugs” at this home on several prior occasions. The evidence of uncharged misconduct helps to shed light on the circumstances prior to appellant’s positive urinalysis and to aid in determining the probability that appellant’s drug use was not unknowing. For most people, the probability that appellant innocently ingested cocaine would dramatically decrease as his presence numerous times at a “drug house” became known. For these reasons, I believe Airman Vith’s testimony passes test 2. I also believe Airman Vith’s testimony passes test 3 because of its highly probative value with respect to the knowledge element of the crime. Therefore, I would hold Airman Vith’s testimony was admissible under Mil. R.Evid. 401 and 402.

Mil.R.Evid. 404(b) provides an additional basis for admissibility of Airman Vith’s testimony: rebutting the innocent ingestion theory raised by the defense and providing a background against which the jury can evaluate the charged offense. Under the Substantive Doctrine of Mil.R.Evid. 404(b), testimony is admissible if evidence of an act of uncharged misconduct is logically relevant to prove a fact in issue other than appellant’s character and the prosecution’s need for the evidence outweighs the evidence’s prejudicial character. United States v. Metz, 34 MJ 349, 351 (CMA 1992).

Airman Vith testified that he had witnessed appellant using methamphetamines on nine to eleven occasions. This evidence of prior drug use cannot be admitted to prove appellant’s bad character or to show that he acted in conformity therewith. As a rule of logical relevance, Mil.R.Evid. 404(b) requires that this testimony prove something other than appellant’s proclivity to commit similar crimes. “It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Mil. R. Evid. 404(b). The list of reasons contained in the rule for admission of uncharged misconduct is not exhaustive. United States v. Johnson, 634 F.2d 735, 737 (4th Cir.1980), cert. denied, 451 U.S. 907, 101 S.Ct. 1974, 68 L.Ed.2d 295 (1981). An issue raised by the defense may be rebutted by evidence of uncharged misconduct. United States v. DiCupe, 21 MJ 440, 443-44 (CMA), cert. denied, 479 U.S. 826, 107 S.Ct. 101, 93 L.Ed.2d 52 (1986); United States v. Janis, 1 MJ 395 (CMA 1976); see United States v. Johnson, supra.

With respect to the innocent-ingestion theory, the Supreme Court in Huddleston v. United States, 485 U.S. 681, 688-90, 108 S. Ct. 1496, 1500-01, 99 L.Ed.2d 771 (1988), found evidence of the accused’s prior involvement in a series of sales of stolen televisions and appliances to be relevant to a determination whether the accused knew he was selling stolen goods. In United States v. DiCupe, 21 MJ at 444, this Court found testimony of poor performance relevant to rebut the defense theory that appellant “performed his duties as night manager ‘[ojutstandingly well,’ ” and thus could not have been responsible for the theft charged. In United States v. Johnson, supra at 737, the Court of Appeals allowed evidence of disproportionately high client medical billings to rebut the defense theory that appellant was not the type of person to engage in tax evasion, stating, “[E]vi*77dence of ‘other acts’ may sometimes be critical to proof on a dispositive-issue related to a defendant’s state of mind.”

In addition, uncharged misconduct is admissible as background evidence under Mil.R.Evid. 404(b). In United States v. Brennan, 798 F.2d 581, 589 (2d Cir.1986), a former New York Supreme Court judge was convicted of bribery, interstate travel in aid of racketeering, wire fraud, and attempted extortion. The court of Appeals allowed, as background evidence, three instances of judicial obstructions not charged in the indictment in order “to complete the story of the crimes charged.” In United States v. Williford, 764 F.2d 1493, 1499 (11th Cir.1985), the Court of Appeals admitted testimony regarding negotiations of a cocaine sale against a defendant charged with importing large quantities of marijuana, stating:

Evidence, not part of the crime charged but pertaining to the chain of events explaining the context, motive and set-up of the crime, is properly admitted if linked in time and circumstances with the charged crime, or forms an integral and natural part of an account of the crime, or is necessary to complete the story of the crime for the jury.

Although I would hold Airman Yith’s testimony admissible under Mil.R.Evid. 401, 402, and 404(b), I share the concern of the majority bout admitting unduly prejudicial evidence. The Supreme Court in Huddleston v. United States, supra, recognized that protections against unfair prejudice emanate from four evidentiary sources under the Federal Rules of Evidence: (1) the 404(b) requirement that “evidence be offered for a proper purpose”; (2) “the relevancy requirement of Rule 402”; (3) the trial court’s assessment of the probative value and prejudicial impact of the evidence under Rule 403; and (4) the requirement for a trial court to give limiting instructions to the jury upon request under Rule 105. 485 U.S. at 691. Similar protections exist under the Military Rules of Evidence.

Reviewing application of these four evidentiary rules in this case, I am satisfied that: (1) the evidence was offered for a proper purpose—to refute appellant’s claim of innocent ingestion could be evaluated; (2) the evidence was relevant to a determination of knowing ingestion; (3) the military judge properly assessed the probative value and prejudicial impact of the evidence; and (4) the military judge gave an effective limiting instruction to the jury. Therefore, I conclude that appellant was not unfairly prejudiced by admission of Airman Vith’s testimony.

Additionally, I disagree with the majority’s conclusion regarding plain error and its refusal to apply waiver under the facts of this case. This case is unique because, after an initial motions'session at which the defense made a general in limine objection to Airman Vith’s testimony, both the military judge and trial counsel were replaced. Hence, trial defense counsel was the only original court officer to participate in the entire trial. The first military judge properly had deferred ruling on the motion in limine until Airman Vith’s testimony was offered as evidence at trial, and that judge had asked trial defense counsel to renew the motion at that time. When Airman Vith’s testimony was offered by the new trial counsel, in front of the new military judge, trial defense counsel did not renew the motion in limine but rather asked for a change of forum to judge alone. I am, therefore, left with the unenviable task of evaluating trial defense counsel’s decision, which could have been a tactical one, based solely on the record before us.

The majority’s opinion seems to indicate that it will apply the doctrine of plain error any time a trial defense counsel fails to renew an objection to evidence of uncharged misconduct.

I believe this court’s own case law runs contrary to this proposition. In United States v. Holt, 33 MJ 400, 406 (CMA 1991), we held that, absent plain error, failure to object to trial testimony waives the matter on appeal. See also RCM 920(f), Manual, supra; Mil.R.Evid. 103(a)(1). Earlier, in *78United States v. Thomas, 11 MJ 388 (CMA 1981), this court did not find plain error where a judge deferred ruling on a defense motion in limine to suppress evidence of uncharged misconduct, and here the defense failed to renew its motion upon presentation of the evidence.

“In order to constitute plain error, the error must not only be obvious and substantial, it must also have ‘had an unfair prejudicial impact on the jury’s deliberations.’ ” United States v. Fisher, 21 MJ 327, 328 (CMA 1986) (quoting United States v. Young, 470 U.S. 1, 17 n. 14, 105 S.Ct. 1038,1047 n. 14, 84 L.Ed.2d 1 (1985)). I would not apply plain error here because trial defense counsel requested a change of forum rather than renewing the objection, indicating a tactical- decision on her part, and because the military judge carefully and correctly instructed the members on the inferences they could draw from this testimony. I believe any possibility of unfair prejudice was alleviated by the limiting instruction.

Applying a harmless-error analysis to the facts in this case, I conclude that the other evidence of record is more than sufficient to support appellant’s conviction. First, appellant tested positive for cocaine, and Airmen Vith and Wilson testified that they saw him using white, powdery “lines” of an unknown substance which was believed to be an illegal drug. Second, Airmen Vith and Wilson both testified that appellant remained at Sherry Sigmon’s house while they went to buy drugs, indicating that appellant was comfortable in this home and well known to the owner. Finally, Elizabeth Gevedon’s testimony that she put cocaine into appellant’s drink as a means of easing pain in his hand lacks credibility when aspirin would have accomplished this objective legally and cheaply. There is sufficient proof of knowing use; hence I would find any error to be harmless.

The courts have also upheld decisions to admit evidence of uncharged misconduct absent an abuse of discretion—see United States v. Shields, 20 MJ 174, 176 (CMA 1985); United States v. Wright, 20 MJ 518, 521 (ACMR), pet. denied, 21 MJ 309 (1985); United States v. Pooler, 18 MJ 832, 833 (ACMR 1984), pet. denied, 19 MJ 317 (1985). In the instant case, the knowledge element of the offense was clearly placed in issue by the defense.

For all of the foregoing reasons, I would affirm the decision below.