Petition for Writ of Certiorari — Redmond v. United States

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| ty Court, U.S,

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85 1619 APR 3 t999

No.

JOSEP C

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Jn the Supreme Court of the Anited

OCTOBER TERM, 1985

LEON B. REDMOND

SPECIALIST FOUR, UNITED STATES ARMY,

PETITIONER

v.

THE UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

MILITARY APPEALS

BrRooks B. LA GRUA

Colonel, Judge Advocate

General's Corps (JAGC)

United States Army

USALSA-DAD

Nassy Building

Falls Church, VA 22041

(202) 756-1807

Counsel of Record

and

WILLIAM P. HEASTON

Lieutenant Colonel, JAGC

United States Army

DALE K. MARVIN

Mayor, JAGC

United States Army

RICHARD J. ANDERSON

( ‘aptain, JAGC

United States Army

QUESTION PRESENTED

WHETHER a further articulation “ this Court’s opinion tn

Francis v. Franklin, 105 S.Ct. 1965 (1985) is required LO

determine when the Due Process Clause is violated by an in-

struction that the intent element of premeditated murder

may permissibly be inferred from the accused’s acts.

TABLE OF CONTENTS

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SEE EEN al RE ee a are

Constitutional and Statutory Provisions Involved ...

nc ae cw cs wana s been 2

Reasons for Granting the Writ ................... *

et Oe 10

as Wc 'a y's 5.4m 40 8 6d 5 oe a ee ws 24

TABLE OF AUTHORITIES

Cases:

Bowen v. Kemp, 769 F.2d 672 (11th Cir. 1985)... 7

Connecticut v. Johnson, 460 U.S. 73 (1983) .. 2... 6, 7,8

Davis v. Kemp, 105 S.Ct. 2689 (1985) .. 22... .. 7

Engle v. Koehler, 707 F.2d 241 (6th Cir. 1983),

affd by an equally divided court, 104 S.Ct.

ok ee ee Ce iia ake 7

Francis v. Franklin, 105 S.Ct.1965 (1985) . 2... . passim

Hagler v. Callahan, 764 F.2d 711 (9th Cir.

NE ee a eae 7

In re Winsh ip, ee Were EEO) ck ove vw x baw ees 6

Kemp v. Drake, 762 F.2d 1449 (11th Cir. 1985),

petition for cert. filed, 54 U.S.L.W. 3254

(U.S. Sep. 27, 1985) 1 SO i

Mullaney v. Wilbur, 421 U.S. 684 (1975) ....... 6

Patterson v. New York, OR eee 6 6

Sandstrom v. Montana, 442 U.S. 510 (A979) . 2... », OL 3

Thomas v. Kemp, 766 F.2d 452 (11th Cir. 1985) .. 7

Ulster County Court vo Allen, 442 U.S. 140

ee ee ee ee oes 6

United States v. Kimmel, T77 F.2d 290 (5th Cir.

1985), petition for cert. filed, 54 U.S.L.W. 3517

(U.S. Jan. 17, 1986) (No. 85-1223) ........... 7

United States v. Redmond, 21 M.J. 319 (CMA

Re Ss bw v oak se 8 RA 1,5, 7

Constitution and Statutes:

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be oS . -Seere

10 U.S.C. § 91S ...:..

28 0) .BA. \ 1259

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1985

No. __

LEON B. REDMOND

SPECIALIST FOUR, UNITED STATES ARMY,

PETITIONER

v.

THE UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

MILITARY APPEALS

The petitioner Leon B. Redmond respectfully prays that a

writ of certiorari issue to review the judgment and opinion of

the United States Court of Military Appeals entered in this

proceeding.

OPINIONS BELOW

The opinion of the Court of Military Appeals is reported at

21 M.J. 319 (CMA 1986) (Appendix A). The opinion of the

Army Court of Military Review is unpublished, CM 443157

(ACMR 14 August 1984) (Appendix B). .

JURISDICTION

The judgment of the Court of Military Appeals was entered

on February 3, 1986, affirming petitioner’s conviction dated

March 5, 1982. The jurisdiction of this Court is invoked under

28 U.S.C. § 1259.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The Constitution of the United States provides:

Amendment V: “No person shall... be deprived of life,

liberty, or property, without due process of law.”

(1)

The Uniform Code of Military Justice provides:

Article 118, 10 U.S.C. § 918 (1982)

“Any person subject to this chapter who, without

justification or excuse, unlawfully kills a human

being when he-

(1) has a premeditated design to kill;

(2) intends to kill or inflict great bodily harm;

(3) is engaged in an act which is inherently

dangerous to others and evidences a wanton

disregard of human life; or

(4) is engaged in the perpetration or attempted

perpetration of burglary, sodomy, rape, rebbery,

or aggravated arson;

is guilty of murder, and shall suffer such punishment

as a court-martial may direct, except that if found

guilty under clause (1) or (4), he shall suffer death or

imprisonment for life as a court-martial may direct.”

STATEMENT OF THE CASE

The body of Ilona Wietrzychowski was found in a vineyard

near Volxheim, Federal Republic of Germany, on July 24,

1981. The back of her head was smashed and her skull frac-

tured (R. 152). Circumstantial evidence tended to establish

petitioner’s involvement in her death. Wietrzychowski was

last seen alive with petitioner in petitioner's car enroute to

her home (R. 49). Later, petitioner was seen by his fiancee,

Private First Class Kathy Rodgers, with blood on his clothes,

arms and face (R. 178). She also saw a bloody blanket and

hammer in his car and witnessed him wash, change clothes,

clean the hammer and dispose of the blanket and hammer ina

field (/d.). Petitioner explained that he had kilied “a white guy

and a black lady” (/d.). Rodgers later discarded petitioner's

bloody clothes in a garbage dumpster (R. 179-80).

The petitioner was tried by general court-martial at Bad

Kreuznach, Federai Republic of Germany, on March 1-5,

1982, pursuant to a Charge and_ specification alleging

premeditated murder in violation of Article 118, Uniform

3

Code of Military Justice [hereinafter cited as UCMJ], 10

U.S.C. § 918 (1982). The court-martial invoked jurisdiction

pursuant to Article 2, UCMJ, 10 U.S.C. § 802 (1982).

Through the testimony of six expert witnesses petitioner

posed two defenses; a complete defense of insanity, and a

defense that at the time of the offense he suffered from a par-

tial lack of mental responsibility. Petitioner posed the latter

defense to negate the specific intent element of premeditated

murder. He relied on expert psychiatric testimony that he

suffers from a chronic borderiine character disorder with

paranoid and explosive characteristics (R. 230-31, 255-56,

264, 317, 326-27); that he becomes angry easily and that once

angry, it is difficult if not impossible for him to control

himself (R. 232, 262); that at such times he is unable to form a

specific intent (R. 276); and that at the time of the offense, he

did not intend to kill but only to hurt all of those who had re-

jected him (R. 241). Although the Government had the

burden of proving beyond a reasonable doubt petitioner's

mental responsibility at the time of the offense, the prose-

cutor argued to the jury that “the accused has to satisfy cer-

tain medical, legal criteria before he lacks mental respon-

sibility” (R. 405). The military judge charged the jury:

You are advised that the intent to kill or inflict great

bodily harm may be proved »y circumstantial evidence;

that is, by facts or circumstances from which, according

to the common experience of mankind, you may reason-

ably infer the existence of such intent. Thus, it may be in-

Jerred that a person intends the natural and probable con-

sequences of an act purposely done by him. Accordingly, if

a person does an intentional act likely to result in death

or great bodily harm, it may be inferred that he intended

to inflict death or great bodily harm. The drawing of such

an inference is permissive merely, and not mandatory,

and whether it should be drawn at all, and the weight to

be given to it if itis drawn, are matters for your exclusive

determination.

(R. 436) (emphasis added). Subsequently, the military judge

also stated:

4

Now I| have advised you that premeditation is an essen-

tial element of the offense of premeditated murder; that

an intent to kill is an essential element of the offense of

premeditated murder; and that an intent to kill or inflict

great bodily harm is an essential element of the offenses

of unpremeditated murder and voluntary manslaugher.

Intent ordinarily cannot be proved by direct evidence

unless, for an example, an accused has been overheard to

make a statement of his intent. You are advised that the

accused’s intent may be proved by circumstantial

evidence; that is, by facts and circumstances trom which

you may, according to the common experience of

mankind, reasonably infer the existence of an intent.

Thus it may be justifiably inferred that the accused in-

tended the natural and probable consequences of any act

purposely done by him. In this regard, you must consider

all relevant facts and circumstances, including but not

limited to, the testimony of Dr. Hoehmann and Mr.

Weiland concerning their reconstruction of how the

death took place; the admissions of the accused to Kathy

Rodgers that he murdered someone; and the physical

evidence, including the position of the body, the wounds,

the clothing, and the blood analysis. The weight, if any, to

be given an inference of the accused’s intent must of

course depend upon the circumstances attending the

proved facts which give rise to the inference, as well as

all the other evidence in the case. It’s for you to make this

determination.

(R. 449) (emphasis added). The jury entered findings of guilty

to premeditated mnurder and sentenced the petitioner to a

dishonorable discharge, forfeiture of all pay and allowances,

reduction to the lowest enlisted grade, and to be put to death.

On August 14, 1984, the Army Court of Military Review af-

firmed the findings of guilty but reduced the death penalty to

confinement at hard labor for life.

The federal constitutional question involved has been -

substantially litigated at all stages of the appellate process.

on

The issue granted by the Court of Military Appeals, as a

prerequisite to this Court’s jurisdiction, was as follows:

WHETHER THE PERMISSIBLE INFERENCE

THAT ONE INTENDS THE NATURAL CONSE-

QUENCES OF HIS ACTIONS IS INSUFFICIENT AS

A MATTER OF LAW, STANDING ALONE, TO

ESTABLISH A SPECIFIC INTENT TO KILL IN THE

FACE OF TESTIMONY FROM MEDICAL EXPERTS

THAT SUCH AN INTENT WAS ABSENT.

On February 3, 1986, the Court of Military Appeals affirmed

the decision of the Army Court of Military Review, holding

that the trial court’s instructions about a permissive in-

ference as to intent “seem to accord fully with the re-

quirements of F’rancis v. Franklin, —— U.S. ____, 105 S.Ct.

1965, 85 L.Ed. 2d 344 (1985).” 21 M.J. at 325.

REASONS FOR GRANTING THE WRIT

In rejecting petitioner's arguments, the Court of Military

Appeals failed to address the clear signal of Francis v-

Franklin, supra, in obiter dictum, that an instruction on a

permissive inference violates the Due Process Clause when

the conclusion it suggests is not one justified by reason and

common sense in light of the proven facts before the jury.

I. THIS COURT'S HOLDING IN FRANCIS V. FRANKLIN

LEFT UNRESOLVED THE SUBSTANTIAL FEDERAL

QUESTION WHEN AN INSTRUCTION ABOUT A PER-

MISSIVE INFERENCE AS TO INTENT VIOLATES

THE DUE PROCESS CLAUSE.

The petitioner presents a substantial federal question

unanswered by this Court’s holdings in Sandstrom v. Mon-

tana, 442 U.S. 510 (1979) and Francis v. Franklin, supra, In

Sandstrom, the trial court instructed the jury that “[t}he law

presumes that a person intends the ordinary consequences of

his voluntary acts.” 442 U.S. at 513. The giving of the instruc-

tion violated the Due Pruitt Clause because intent was an

essential element of the crime. The instruction in effect

directed a verdict because it required the jury to ignore the

6

evidence of intent. Connecticut v. Johnson, 460 U.S. 73, &5

(1983) (plurality opinion). The jury “could have concluded that

upon proof by the State of the slaying, and of additional facts

not themselves establishing the element of intent, the burden

was shifted to the defendant to prove that he lacked the req-

uisite mental state.” 442 U.S. at 524. Such a shifting of the

burden of proof violates the basic due process principle that

the State must prove each essential element beyond a

reasonable doubt. Patterson v. New York, 432 U.S. 197

(1977); Mullaney v. Wilbur, 421 U.S. 684 (1975); In re

Winship, 397 U.S. 358 (1970).

In Francis v. Franklin, supra, this Court examined jury in-

structions similar to those in Sandstrom which could have

reasonably been understood to require a mandatory pre-

sumption which shifted the burden of persuasion on the ele-

ment of intent to the defendant once the State proved

predicate acts. The instruction differed from the Sandstrom

instruction in that it provided that the presumption “may be

rebutted”. The tireshold inquiry was whether the challenged

instruction created a mandatory presumption or a permissive

inference. 105 S.Ct. at 1971. This Court indicated that either

a mandatory presumption or a permissive inference violates

the Due Process Clause if it relieves the State of the burden

of persuasion on an element of an offense. A mandatory pre-

sumption is more likely to violate the Due Process Clause

since it requires a jury to infer the presumed fact if the State

proves certain predicate facts. A permissive inference, on the

other hand, still requires the State to persuade the jury that

the conclusion it suggests should be inferred based on the

proven predicate facts. Ulster County Court v. Allen, 442

U.S. 140 (1979). This Court indicated in obiter dictum concer-

ning permissive inferences that “{s]uch inferences do not

necessarily implicate the concerns of Sandstrom. A per-

missive inference violates the Due Process Clause only if the

suggested conclusion is not one that reason and common

sense justify in light of the proven facts before the jury.” 105

S.Ct. at 1971. Subsequent to Francis, inferior courts have

not engaged in analyses beyond the threshold question .

whether the jury charge allows the drawing of a permissive

7

inference rather than a mandatory presumption. When these

courts have determined that the charge allows the drawing of

a permissive inference, they have failed to consider the effect

of the inference in light of the proven facts before the jury.

United States v. Redmond, 21 M.J. 319 (CMA 1986); United

States v. Kimmel, 777 F.24 290 (5th Cir. 1985), petition for

cert. filed, 54 U.S.L.W. 3517 (U.S. Jan. 17, 1986) (No.

85-1223).

Il. THIS COURT HAS NOT RESOLVED THE SUBSTAN-

TIAL FEDERAL QUESTION WHETHER AN ER-

RONEOUS SANDSTROM CHARGE THAT SHIFTS A

BURDEN OF PERSUASION ON AN ESSENTIAL ELE-

MENT OF INTENT CAN EVER BE HARMLESS.

A plurality of this Court took the position in Connecticut v.

Johnson, supra, that Sandstrom error is harmless only in

rare situations when the erroneous charge played no role in

the jury's verdict. 460 U.S. at 87. Four dissenting Justices

would establish a rule requiring consideration of the con-

clusiveness of intent evidence. 460 U.S. at 90. The issue re-

mains unresolved even though this Court has granted cer-

tiorari in two subsequent cases raising it. Engle v. Koehler,

707 F.2d 241 (6th Cir. 1983), aff'd by an equally divided court,

104 S.Ct. 1673 (1984); Francis v. Franklin, supra, 105 S.Ct.

at 1977. Inferior courts remain without clear guidance. See,

é.g., Hagler v. Callahan, 764 F.2d 711 (9th Cir. 1985) (error

harmless when intent not contested at trial); Kemp v. Drake,

762 F.2d 1449 (Lith Cir. 1985) (en bane), petition for cert.

Jiled, 54 U.S.L.W. 3254 (U.S. Sep. 27, 1985) (No. 85-556) (er-

ror not harmless when evidence of intent not overwhelming

and intent was at issue); Bowen v. Kemp, 769 F.2d 672 (11th

Cir. 1985) (error harmless when presumption did not com-

pletely eliminate a defense); Thomas v. Kemp, 766 F.2d 452

(11th Cir. 1985) (error not harmless when intent was an issue

and some evidence supported defendant’s argument); Engle

v. Koehler, supra (error not harmless where defendant

asserted lack of mens rea). Therefore, “resolution of this im-

portant and frequently recurring question is long

overdue. ...” Davis v. Kemp, 105 S.Ct. 2689, 2691 (1985)

(White, J., dissenting from denial of certiorari).

8

Ill. PETITIONER WAS PREJUDICED BY THE COURT

OF MILITARY APPEALS’ FAILURE TG CONSIDER

WHETHER THE INSTRUCTIONS ABOUT A PER-

MISSIVE INFERENCE VIOLATED THE DUE PROC-

ESS CLAUSE IN LIGHT OF THE PROVE?’ FACTS

BEFORE THE JURY.

The burden-shifting potential of an instruction is more like-

ly to create constitutional error if intent is an element of the

crime charged and a crucial issue at trial. 442 U.S. at 520-24.

Sandstrom error is harmless only if the defendant himself

has taken the issue of intent away from the jury. 460 U.S. at

87.

Petitioner placed the issue of intent squarely before the

jury through the manifestly credible and competent

testimony of six expert witnesses. The instruction about a

permissive inference, in conjunction with the prosecutor's

argument that petitioner had a burden concerning mental

responsibility to meet, relieved the United States of its

burden to prove beyond a reasonable doubt the intent ele-

ment of premeditated murder. The expert testimony peti-

tioner elicited before the jury was that at the time of the of-

fense petitioner had no specific intent to kill. Thus the proven

facts before the jury demonstrated an absence of the essen-

tial element of intent. The contrary conclusion suggested by

the instruction on a permissive inference accordingly im-

plicated the concerns of Sandstrom. Petitioner was _ prej-

udiced by the Court of Military Appeals’ failure to address

those concerns.

CONCLUSION

For the foregoing reasons, including the importance of the

constitutional issue involved, the petition for certiorari

should issue. The question presented is substantial and of

great public significance. Inferior courts need this Court’s

guidance concerning when a permissive inference violates

9

the Due Process Clause. The jury charge in issue may deny

fundamental Due Process rights to individual defendants,

soldier and citizen alike.

Respectfully submitted,

Brooks B. LA GRUA

Colonel, Judge Advocate

General’s Corps (JAGC)

United States Army

USALSA-DAD

Nassif Building

Fails Church, VA 22041

202) 756-1807

Counsel of Record

and

WILLIAM P. HEASTON

Lieutenant Colonel, JAGC

United States Army

DALE K. MARVIN

Mayor, JAGC

United States Army

RICHARD J. ANDERSON

Captain, JAGC

United States Army

APPENDICES

10

APPENDIX A

UNITED STATES COURT OF MILITARY APPEALS

No. 50755

CM 443157

UNITED STATES, APPELLEE,

Vv.

LEON B. REDMOND, SPECIALIST FOUR

U.S. ARMY, APPELLANT.

Feb. 3, 1986

For Appellant: Captain Richard J. Anderson (argued); Col-

onel William G. Eckhardt, Lieutenant Colonel William P.

Heaston, Major Lawrence F. Klar, Captain Robert W.

Wiechering (on brief); Colonel Brooks B. LaGrua, Lieutenant

Colonel Arthur L. Hunt, Major John E. King, Major Stephen

R. Dooiey, Captain Frank J. DiGiammarino.

For Appellee: Captain Richard G. Mann, Jr. (argued); Col-

onel James Kucera, Lieutenant Colonel Adrian J. Gravelle,

Major Larry D. Williams (on brief).

OPINION OF THE COURT

EVERETT, Chief Judge:

Specialist Four Leon B. Redmond was tried at Bad Kreuz-

nach, Federai Republic of Germany, before a general court-

martial composed of officer members, on February 24 and

March 1-5, 1982. Contrary to his pleas, he was found guilty

of premeditated murder, in violation of Article 118 of the

Uniform Code of Military Justice, 10 U.S.C. § 918.! The court

' As an alternative charge to premeditated murder, Private First Class

Kathleen Rodgers was named as the principal and Redmond was charged

with preventing her apprehension and trial by assisting her in hiding the

victim's body and in helping her to dispose of certain material evidence of

the murder, in violation of Article 78, Uniform Code of Military Justice,

11

sentenced him to a dishonorable discharge, forfeiture of all

pay and allowances, reduction to the lowest enlisted grade,

and to be put to death. The convening authority approved the

findings and sentence. On August 14, 1984, the Court of

Military Review in a per curiam opinion affirmed the findings

of guilty but reduced the death penalty to confinement at

hard labor for life because the sentencing procedure followed

in his case was constitutionally defective.2 We granted

review to consider these issues:

I

WHETHER THE PERMISSIBLE INFERENCE

THAT ONE INTENDS THE NATURAL CONSE-

QUENCES OF HIS ACTIONS IS INSUFFICIENT AS

A MATTER OF LAW, STANDING ALONE, TO

ESTABLISH A SPECIFIC INTENT TO KILL IN THE

FACE OF TESTIMONY FROM MEDICAL EXPERTS

THAT SUCH AN INTENT WAS ABSENT.

II

WHETHER THE ADMISSION OF THE DISEM-

BODIED SKULL OF THE VICTIM, WHICH THE

RECORD REVEALS WAS OF MINIMAL MARGINAL

RELEVANCE AND OFFERED PRIMARILY FOR ITS

INFLAMMATORY EFFECT, WAS AN ABUSE OF

DISCRETION WHICH MATERIALLY PREJUDICED

THE SUBSTANTIAL. RIGHTS OF THE ACCUSED.

I

A. Chronological Narrative

In mid July, 1981, Private Maurice Crosby introduced his

18-year-old fiancee, Ilona Wietrzychowski, to appellant. At

that time, appellant had remarked with reference to Ilona,

10 U.S.C. § 878. However, after the prosecution presented its case on the

merits, it elected to proceed against appellant only on the original

premeditated murder charge, and this charge was dismissed by the

military judge.

2 See United States v. Matthews, 16 M.J. 354 (C.M.A.1983).

12

“I'd like to get a piece of that.” A week later, just before mid-

night on July 22, Redmond and his girl friend, Private First

Class Kathleen Rodgers—who was then five-months preg-

nant with his child—encountered Crosby, Ilona, and

Specialist Four William Henry at the Club Romantik, a bar in

Bad Kreuznach.

Appellant suggested that they go somewhere to “smoke

some hash”; and so they left the bar shortly after midnight

and drove away in his yellow Renault. After the group had

driven for about an hour, Redmond stopped the car at a dirt

road; and he and Crosby got out to urinate. According to

Crosby, appellant “was a little irritated” that Henry had come

with them; and he stated that he would drive the group back

to Bad Kreuznach. During the ride back, Crosby and Ilona

fell asleep in the back seat.

After reaching Bad Kreuznach, at about 1:20 a.m., ap-

pellant first dropped off his girl friend, Rodgers, at her

billets. He told her that he would return to her by 2:00 a.m.

Then Redmond drove to another barracks and dropped off

Crosby and Henry. Because Crosby was somewhat intox-

icated and tired, he left Ilona alone in the car with Redmond,

whom he told to “make sure she” got “home safely.” Her home

was five to eight minutes away by car. Crosby never saw his

fiancee again.

At 2:26 a.m. Redmond appeared at the room of his gir!

friend, PFC Rodgers. He “was covered with blood... It was

all over-all over his face, his arms, his clothes.” At Redmond’s

request the two left the room and went to his car. There,

Rodgers observed that the front passenger’s seat was “laying

down” and contained a bloody blanket on which a hammer

rested. Rodgers asked appellant what had happened; and he

replied that he had “killed a white guy and a black lady” and

had “dropped . . . off” their bodies “outside of Bad Kreuznach

somewhere.” When Redger asked whether “he [had] use[d]

the hammer to kill’em with,” Redmond replied, “Yes, that’s

why there’s so much blood.” Rodgers saw Ilona’s sunglasses

and asked appellant if, in fact, he had killed Hona and Crosby;

but Redmond denied this. Pursuant to his orders, she “threw

... [the sunglasses! out the window.”

13

They drove past Frankfurt and stopped in a wheat field.

There, Redmond pulled a brown bag from the back of his car,

“took some soap and a wash cloth out of’ the bag, washed

himself in a puddle of water, and put on some clean fatigues.

Also changing clothes, Rodgers “put on a pair of” appellant’s

“red pants and a brown and white sweater.” After wiping off

the hammer, appellant threw it and the bloody blanket in the

field. According to Rodgers, the bloody clothes were not

discarded there because Redmond stated that “he didn’t want

to put all the evidence together.” Instead, enroute back to

Bad Kreuznach, Rodgers deposited the clothes in a garbage

dumpster.

After the pair returned eariy in the morning to Bad Kreuz-

nach, Redmond stopped at his barracks to determine when he

was scheduled to perform duty that day. While he was out of

the car, Rodgers noticed a red handbag. Appellant told her

that it belonged to “[t]he black female . . . he had killed”; but,

in fact, it belonged to Ilona. Appellant instructed Rodgers to

place the handbag in her locker, and he stated that he would

“get rid of it later.”

Appellant left “to sign in for ... [an] alert”; and Rodgers

“went back to. ..{her] room. . .to sleep.” At about 7:30 a.m.,

she was awakened by Redmond’s knocking on her door.

Then, according to Rodgers, he asked, “Are you going to

clean the car out or do you want me to get caught?”

While Rodgers was cleaning his car, appellant, a heavy

truck driver, drove his scheduled route. On his return at 9:00

a.m., he reported that his truck’s alternator was discharging.

Appellant’s squad leader thought he was unusually nervous

and upset. Soon Redmond disappeared for the rest of the

workday.

That same day Specialist Four Henry learned that [lona

had not come home from her outing the night before and that

her mother was looking for her. The next day, Friday, he en-

countered Crosby and informed him that Ilona had not “been

home in two days.” Crosby became immediately concerned

and talked to appellant, who reported “that he had dropped”

lona “off in front of” a restaurant near the Bad Kreuznach

train station. There, she met a man with whom she argued;

14

and finally the two had driven away in a car. Appellant also

told Crosby that he had picked up Rodgers before leaving

Ilona.

Subsequently, Crosby asked Rodgers if Ilona had been in

the car when appellant picked her up. Receiving a negative

answer, Crosby accosted Redmond again and received a new

and different version of events.

Late on the afternoon of July 24, Ilona’s body was

discovered lying facedown in a vineyard at the edge of a

grass-covered farm road and 115 meters from a main paved

road. Someone had smashed the back of her head and frac-

tured her skull. The body was fully clothed; but her blood

stained jacket was about 20 meters away. The spiked heel

shoes which Ilona had been wearing were soiled with dirt

from the scene. In addition to a severe skull fracture and the

crushing of the left side of her brain, Ilona had sustained con-

tusions on her left eye, right cheekbone, left shoulder blade,

torso and knees, a fracture of the middle finger of her right

hand, a tear on the right ear lobe, injuries to her lips, and

miscellaneous abrasions and bruises.

During the subsequent investigation by German police and

Army Criminal Investigative Division personnel, examina-

tion of appellant’s automobile disclosed visible blood spots on

the rear portion of the passenger seat and around the radio

and left rear door beam; and throughout the ear other blood

traces were detected by chemical means. The blood spots

were of the AB human blood type. Ilona had this blood type,

Which is comparatively rare and found in only five to six per-

cent of the population in that part of Germany. Redmond and

Rodgers had blood type O. Fingernail scrapings obtained

from appellant’s right hand disclosed traces of human blood

on the thumb and two fingers; but the traces were too small

for serological analysis.

Appellant gave German and American investigators a

variety of accounts of his activities on the night of the

homicide. One statement by him was so unchivalrous as to ac-

cuse Rodgers of the slaying. On another occasion, however,

Redmond admitted that he had killed Hona with a hammer

that was in the car.

15

Herr Weiland, a German police official, gave his opinion

that Ilona initially had been injured in the car—which ac-

counted for the blood found there. She was still alive when

she was in the field—as indicated by the location of “brain

particles ... next to the corpse” and by bloodstains on her

face. She was killed while “lying down or bent over” at the

same place where her body was found.

In the opinion of Dr. Eckhard Hohmann, a German forensic

pathologist, the time of death was more than 36 hours before

he performed an autopsy at 9:30 p.m. on July 24. The blows

“must have” been struck “from behind” — probably while the

victiin was lying on soft ground or some other soft surface.

Ilona’s injuries were consistent with her being held down

while being struck. The injuries to her hands were apparently

received when she tried to defend herself. Because of the

Renault’s small size, it was “highly unlikely” that all of Iona’s

injuries could have been inflicted while she was in the car.

B. Redmond’s Mental Condition

At trial the defense relied chiefly on evidence concerning

appellant’s mental condition. Lieutenant Colonel Arthur

Campbell, a psychiatrist, had observed Redmond for approx-

imately a week in December 1981. His diagnosis was that ap-

pellant had “a personality disorder, best called a borderline

character disorder.” “In lay terms, probably the best descrip-

tion is that these people are—that they have a stable instabili-

ty; that have a life long pattern of either anger, eruptions of

rage, depression, loneliness, a poor sense of identity —ter-

rifically difficult interpersonal relations.” Redmond could dif-

ferentiate right from wrong and adhere to the right; and “he

did not have any condition or defect that it would undermine

that capacity.” “I'd say that periodically, for whatever

reasons, he becomes consumed with rage, and as a result of

that erupts in violent behavior.” Redmond had said he did not

remember the offense; but, aside from his own statement,

there was no other evidence of memory disturbance. Ap-

pellant “would not have any specific goals for” his rage

“le|xcept to hurt. I don’t think he had a goal to kill.”

16

Captain Allen Hopewell, a psychologist, had administered

tests to appellant. In his opinion, Redmond fell within the

“specific diagnostic category” of “borderline

personality” — which “is not normally thought to be a mental

disease or mental defect.” Persons in this group “manifest

numerous symptoms from different areas, but when we

follow them long enough and look at them closely enough no

one symptom really predominates and so they’re not put into

a category, such as schizophrenia.” Redmond is “an individual

that gets angry extremely easily.”

I really do believe that he is a fellow that becomes easily

angered and perhaps explosive, and doesn’t have much

control over that. However, in qualifying that, I think

that he again is in touch enough with reality that he is

responsible for his own behavior, and he—this in no way

disqualifies him from being basically responsible for his

actions; or means to imply that he should not be held

responsible for things that he does when he gets angry.

However, “a lot of his behavior, whethes it’s aggressive or

non-aggressive behavior, is lacking—lacks somewhat of a

specific goal.” “I think he’s a fairly unreliable person, both in

what he does and what he says.” In Dr. Hopewell’s view,

“multiple personality” was not “an appropriate diagnosis” for

appellant. Redmond “probably does have brief periods of

psychotic type of thinking or behavior”; and “when he’s in this

situation,” “I would doubt” that he is “capable-of forming

specific intent.”

Major Clyde R. Snyder, a psychiatrist, had observed Red-

mond in September and November, 1981. In his opinion ap-

pellant suffered from “paranoid schizophrenia.” However, it

was “possible” that “the symptoms” he had “diagnosed as

schizophrenia, could have actualy been a borderline personali-

ty disorder.”

Dr. Harry Chovnik, another psychiatrist, had six or seven

“extended interviews,” with Redmond-— including a sodium

amytal interview. He tentatively diagnosed appellant as suf-

fering from a “multiple personality,” which “is a_ rare

disorder.”

17

Lieutenant Colonel Roger Natkin, Chief of the Out-patient

Psychiatric Department at the Frankfurt Army Medical

Center, had also observed Redmond. His “[c]linical diagnosis

was a... borderline personality disorder ... with paranoid

and explosive characteristics.” This is not “a mental disease

or defect” “in the terms of the legal definition.” Appellant

maintained that he could not remember the homicide, but no

clinical reason had been found for this lack of memory. A per-

son “in an explosive or paranoid episode” probably could not

“conform their actions to the requirements of law.” He had

“no knowledge of whether Specialist Redmond had a

dissociative episode on” July 22—chiefly because appellant

denied having a recollection of the events.

Dr. James McCurdy, Chief of the Department of

Psychiatry at the Frankfurt Army Medical Center, evaluated

appellant and diagnosed a “borderline personality disorder”

with “traits of explosiveness and paranoid ideation.” “Basical-

ly, he has the personality traits of, with little provocation or

little stimulus, to fly into explosive episodes, rage episodes,

angry episodes, and act out that in some type of behavior.”

While “in one of these episodes,” Redmond “[bjasically

[would] not” be “able to conform his conduct to the re-

quirements of law.” Redmond “does not suffer from a mental

disease or defect”; and this witness had “no idea... whether

he had an explosiv’ episode on” July 22 because appellant

“has no memory of tnat episode.” No clinical reason could be

found for this memory loss.

As a rebuttal witness, the Government called Major

Thomas Meliwain, a psychiatrist who had seen appellant at

the Army hospital in Bad Kreuznach on July 22, 1981—the

same day on which the fatal events occurred. Appellant re-

ported

having significant difficulties sleeping; that he’d become

quite anxious. The reason for this was that he reported

having been a CID informant prior to his arrival in Bad

Kreuznach—in Karlsruhe or Heilbronn, somewhere in

that region—and had been transferred here under a

threat to his life. He said that he had been an informant

for the CID in drug related cases and that, following his

18

transfer here, individuals had learned of his contact with

the CID and were making threats against his life, were

throwing stones at him as he walked around post at

night—here on Rose Barracks—and he was afraid that

he might lose control at that time.

However, Redmond “manifested no evidence of any signifi-

cant psychiatric disorder—a psychosis or depression”; and

“he did not appear to be paranoid in any way.” Dr. Mcliwain

observed no “indications of paranoid schizophrenia,” “multi-

ple personality,” or psychosis. He doubted “that an

individual’s psychotic state ... could abruptly begin and

abruptly end in such a way that a crime could be committed in

between—in a psychotic state in between two periods of

clearly non-psychotic states.”

Private First Class Kathleen Rodgers, recalled as a rebut-

tal witness, testified that two or three days after the murder

she had taken a ride with appellant and some investigators

“trying to search for the scene of the crime.” Redmond

directed them to a place where he and Crosby had gotten out

of the car to urinate on the night of July 22. At that time,

“{hJe leaned up over the seat and he said, ‘Girl, don’t you know

if I'd have told them where I dropped the bodies off that

they'd say I wasn’t crazy?’ ”

Staff Sergeant Herbert Barrett, another rebuttal witness,

testified that, as appellant’s squad leader, he had not

“notice[{d} anything bizarre about ... Redmond.” First

Sergeant Donald Redman, who had been appellant’s first

sergeant, characterized him as a good soldier and had never

“notice[d] anything unusual about his behavior.” However,

Sergeant Wesley Weddington, a defense witness in surre-

buttal, had observed two occasions on which Redmond had

suddenly and without reason displayed screaming rage.

II

The phrasing of the first issue granted in this case is

somewhat misleading, for it suggests that the Government

relied only on an inference to establish a specific intent to kill

and that medical experts testified this intent was absent. In

fact, the expert testimony did not clearly demonstrate a lack

19

of specific intent; and, besides any inference arising from the

proof that appellant had smashed Ilona’s skull with a ham-

mer, there was ample circumstantial evidence of his intent to

kill.

The physical evidence at the scene of the crime indicated

that the victim had been assaulted both inside and outside ap-

pellant’s car. Plenty of dirt had been found on the victim’s

shoes; and if Ilona had been dead when Redmond pulled her

out of the car, it is unlikely that her high-heeled shoes would

have been so heavily soiled with dirt—one spiked hee! had up

to six centimeters of dirt on it. In light of Ilona’s dirty shoes,

the location of her jacket on the ground nearby, and various

minor injuries on her body, it appears that at some time after

being attacked in the car, Ilona had been standing outside in

the field before her skull was smashed.

The presence of small pieces of skull and brain particles

next to the corpse, the pattern of dried blood on Ilona’s head

and face, and the other wounds on her body indicate that her

skull was smashed by Redmond as he held his struggling vic-

tim face down on the ground in a secluded, rural vineyard

over 100 meters from the main road. The force of the blows

was reflected in the extensive damage to Ilona’s skull. The

location of the parts of the body to which the blows were

directed, as well as the number of blows and the manner of

their administration, tend to show that at the time Redmond

had intended to kill his victim.

Appellant’s attempts to conceal Ilona’s body and _ his

deliberate and continuing efforts to dispose of the evidence

are further indications of a calculated purpose. The fact that

Redmond constantly changed his story of events makes it

more difficult to believe that he initially did not intend to kill

Ilona.

With respect to appellant’s state of mind at the time of the

killing, the only evidence that he had been in a state of uncon-

trollable rage is contained in one of several conflicting pre-

trial statements. According to his oral admission to Special

Agent Harliss Stone, Ilona had slapped him while they were

riding in the car and had told him that he was “just like all the

rest,” and he had reacted by hitting her with the hammer and

later pushing her body out of the car. However, his statement

20

to Stone regarding I[lona’s actions is uncorroborated; and, at

one point Agent Stone thought Redmond was faking that

something was mentally wrong with himself. Redmond’s

remarks to PFC Rodgers also intimated that he was pretend-

ing to be insane. Interestingly, no clinical reason could be

found by the psychiatrists for Redmond’s purported amnesia

as to the killing.

In light of common sense, knowledge, and observation, a

factfinder could reasonably have concluded that Redmond—

who had appeared sane to a psychiatrist a few hours before

the homicide; who had the presence of mind to dispose of the

evidence immediately after the murder; who possessed

enough cunning and cleverness to concoct several false alibis

and to point the finger of blame at others; who had a record

as an outstanding soldier; who had exhibited no bizarre or

unusual conduct; and who got along well with others before

the killing occurred—was sane and capable of premeditating

at the time he smashed Ilona’s skull. Moreover, there was

even expert testimony that lying about a crime and trying to

cover it up is inconsistent with the behavior of psychotic and

insane persons and that a psychotic state could not have come

and gone during the brief time that Redmond was alone with

Ilona.

As we read the record—and contrary to the impression

created by the language of the granted issue—the

psychiatrists did not testify that in their opinion appellant

lacked premeditation or the ability to premeditate when he

killed Ilona. However, regardless of what these experts

meant to say, the members were not required to accept their

testimony and ignore the compelling circumstantial evidence

in the case. See naras. 120(c) and 122(a), and Mil.R. Evid.

703, Manual for Courts-Martial, United States, 1969 (Revised

edition). Indeed, it was for the members to consider all the

evidence, including opinion and circumstantial evidence, in

determining whether appellant had premeditated Ilona’s

death. Apparently they gave this consideration and con-

cluded that appellant was guilty of premeditated—not un-

premeditated — murder.

In reaching their conclusion, the members were properly

advised by the military judge. He informed them in great

detail on the issue of insanity and partial mental respon-

21

sibility-in relation to both the capacity to have a

premeditated design to kill and the capacity to entertain a

specific intent to kill or inflict great bodily harm. Further-

more, his instructions about a permissive inference as to in-

tent seem to accord fully with the requirements of F’rancis v.

Franklin, ___ U.S. ___, 105 S.Ct. 1965, 85 L.Ed. 2d 344

(1985).

Ill

During the case-in-chief, trial counsel offered in evidence

the murder victim’s skull, which had been reconstructed by a

German pathologist. Moreover, he offered three photographs

of the victim’s body which were taken after the body had been

brought into the autopsy room. Defense counsel objected to

two of the photographs as being unduly prejudicial and

cumulative with other exhibits. Similarly, he objected to ad-

mission of the skull on the grounds that it was unduly pre-

judicial under Mil.R. Evid. 403 and was cumulative with

other government exhibits.

However, the prosecutor contended that the probative

value of the skull outweighed any inflammatory or prejudicial

effect because, by showing the ferocity of the attack, the

substantial number of blows, and the probable weapon used,

it helped establish premeditation by appellant. Trial counsel

also asserted that the skull and the autopsy photographs

would aid the pathologist in his testimony.

The military judge admitted the skull and two of the three

photographs into evidence; but he ruled that the court

members could not take the skull exhibit into the deliberation

room or handle it. Thereafter, Dr. Hohmann used these ex-

hibits to illustrate his testimony. He claimed that the

reconstruction of the skull aided him in arriving at his opinion

but acknowledged that it had not helped him as much as he

had hoped.

On this appeal, appellant again contends that the skull con-

stituted inflammatory evidence, which, at best, had little pro-

bative value. He then submits that “[wJhere the evidence of

premeditation was otherwise nonexistent, substantial pre-

judice is apparent.”

The law is settled that a prosecutor should not attempt to

excite the passions of factfinders by evidence which, even if

otherwise admissible, is unduly inflammatory; and such

evidence should “be excluded if its probative value is substan-

tially outweighed by the danger of unfair prejudice... or

needless presentation of cumulative evidence.” Mii.R.Evid.

403. Even so, the military sudge has wide discretion in deter-

mining admissibility of such evidence; and absent a clear

abuse of discretion, his determination to admit the evidence

will not be disturbed on appeal. United States v. Naranjo, 710-

F.2d 1465, 1468-69 (10th Cir.1983); United States v. McRae,

593 F.2d 700, 707 (5th Cir.), cert. denied, 444 U.S. 862, 100

S.Ct. 128, 62 L.Ed. 2d 83 (1979).

We are unable to find an abuse of discretion by this military

judge in admitting the skull into evidence. As trial counsel

contended, this exhibit could properly be used to show the

ferocious nature of the attack and thereby, indirectly, to

establish premeditation.

The skull helped establish other important facts about the

circumstances of the murder. The left rear portion of the

deceased’s skull had been broken into so many pieces that it

was necessary for the pathologist to staple the pieces

together in order to have a more or less complete skull. This

circumstance refuted appellant’s claim in one of his earlier

pretrial statements that he had merely struck the decedent

once with the hammer in the car—as a sort of spontaneous

reaction to her insulting remarks. Furthermore, the skull and

photographs assisted the German pathologist — who testified

through an interpreter — in illustrating why, during his autop-

sy, he had arrived at certain conclusions as to how Ilona was

killed.

Even if the skull should not have been admitted into

evidence, we can hardly believe that the experienced officers

who sat on the court-martial would have been significantly in-

fluenced by it—especially in their determination as to guilt

and innocence. There was substantial circumstantial

evidence that appellant had deliberately committed this

murder. Moreover, other photographs of the victim’s body to

23

which appellant did not object were equally gruesome; and

the skull was not with the court members when they

deliberated.

If the exhibit affected anything, it was the sentence.

However, appellant’s death sentence was subsequently

reduced to confinement for life; and life imprisonment is the

minimum sentence authorized for premeditated murder. Art.

118. Therefore, if Redmond were prejudiced as to the

sentence, this prejudice has clearly been eliminated.

IV

The decision of the United States Army Court of Military

Review is affirmed.

Judge COX concurs.

24

APPENDIX B

UNITED STATES ARMY

COURT OF MILITARY REVIEW

CM 443157

UNITED STATES, APPELLEE.

v.

SPECIALIST FOUR LEON B. REDMOND, SSN 287-52-4904,

UNITED STATES ARMY, APPELLANT

August 14, 1984

Before SU-BROWN, YAWN and WALCZAK, Appellate

Military Judges

Colonel William G. Eckhardt, JAGC, Lieutenant Colonel R.

Rex Brookshire, JAGC, Major Stephen R. Dooley, JAGC,

Captain Frank J. DiGiammarino, JAGC, and Captain William

T. Wilson, JAGC, were on the pleadings for appellant.

Colonel James Kucera, JAGC, Lieutenant Colonel Adrian

J. Gravelle, JAGC, Captain Thomas E. Booth, JAGC, and

Captain Richard G. Mann, Jr., JAGC, were on the pleadings

for appellee.

MEMORANDUM OPINION

Per Curiam:

Appellant, convicted of first degree murder and sentenced,

inter alia, to death, asserts that the Government failed to

prove that he specifically intended to kill the victim at the

time of the murder. We disagree. While there is no direct

evidence of appellant’s intent, we are satisfied beyond a

reasonable doubt that he had a premeditated design to kill the

victim as evidenced by the circumstances surrounding the

murder and the brutal manner in which the murder was com-

mitted.

25

Appellant also contends that his sentence to death cannot

be approved because the sentencing procedure followed in his

case was constitutionally defective. See United States v. Mat-

thews, 16 M.J. 354 (CMA 1983). This contention is correct;

consequently, we shall substitute a sentence of life imprison-

ment for the death penalty. Appellant’s remaining assign-

ment of error is without merit.

The findings of guilty are affirmed. The Court affirms only

so much of the sentence as provides for a dishonorable dis-

charge, reduction to the grade of Private E-!, forfeiture of all

pay and allowances, and confinement at hard labor for life.

For the Court:

/s/ WILLIAM 8S. FULTON, JR. _

William S. Fulton, Jr.

Clerk of ¢ ‘ourt

US GOVERNMENT PRINTING OFFICE. 1986— 152-382/21017