Petition for Writ of Certiorari — Stark v. United States

Saipan POR, U.S.

Pik &

oCT 28 1987

F_SPANIOL, JR,

In the Supreme Court of the G@ i e

OCTOBER TERM, 1987

CHARLES M. STARK

SPECIALIST FOUR, UNITED STATES ARMY,

PETITIONER,

Uv.

THE UNITED STATES OF AMERICA,

RESPONDENT

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

MILITARY APPEALS

JOHN T. EDWARDS

Colonel, Judge Advocate

General’s Corps (JAGC)

United States Army

U.S. Army Legal Services Agency

Defense Appellate Division

5611 Columbia Pike

Falls Church, VA 22041

Counsel of Record

and

DALE K. MARVIN

Mayor, JAGC

United States Army

BRIAN D. DIGIACOMO

Captain, JAGC

United States Army

QUESTION PRESENTED

WHETHER the military courts misconstrued petitioner’s

videotape evidence as testimonial rather than demonstrative,

which erroneously gave the government an absolute contfron-

tation right and thereby denied petitioner’s right under the

Fifth and Sixth Amendments to effectively present his only

defense, insanity.

(1)

TABLE OF CONTENTS

Page

Ee l

ek sed pan ane nace ees |

Constitutional and Statutory Provisions Involved .. . l

memeemeent Gr tne Case ............... a ee 2

Reasons for Granting the Writ .................. 4

SS la

ER 10a

TABLE OF AUTHORITIES

Cases:

Rock v. Arkansas, __._ —U-S. ___, 107 S.Ct.

eg yes eae s ue ceues 7,10, 11

Crane v. Kentucky, U.S. ___, 106 S.Ct. 2142

IES ol 12

Delaware v. VanArsdale, 475 U.S. __, 106

Er 6, 12

Ake v. Oklahoma, 470 U.S. 68 (1985). 2. ee 12

Barefoot v. Estelle, 463 U.S. 886 (1983). 20000... 13

United States v. Valenzuela-Bernal, 458 U.S. 858

i ST A el 12

Ohio v. Roberts, 448 U.S. 56 (1980). 2.0.02... 6

Green v. Georgia, 422 U.S. 95 (1979). 2... ee. 8

Chambers v. Mississippi, 410 U.S. 284 (1973)... 7, 8, 11

Greene v. McK lroy, 360 U.S. 474 (1958). 2 ee. 5

Alford v. United States, 282 U.S. 687 (19381)... .. 5

United States v. McCollum, 732 F.2d 1419 (9th

Cir.), cert. denied, __s- ~U.S. ___, 105 S.Ct.

ee dec ewes aceas 10

United States v. Torniero, 735 F.2d 725 (2a Cir.

ei vu ee ea cdesues 13

United States v. Clifford, 704 F.2d 86 (38d Cir.

A OI a 13

Cases — Continued: Page

United States v. McRary, 616 F.2d 181 (5th Cir.

SE 0s soe Were eae Rh eA 13

United States v. Ariza-lbarra, 605 F.2d 1216

CE Cae, PE a cae eee cee eae ees )

United States v. Ives, 609 F.2d 930 (9th Cir.

SU, © cath 4a eae as eke ba eee 13

United States v. Dwyer, 5389 F.2d 924 (2d Cir.

MER i ee en eee eos 10

United States v. Onori, 5385 F.2d 938 (5th Cir.

PU a wa o> owe ee Pre a ee eee es Ss

United States v. Smith, 507 F.2d 710 (4th Cir.

SE bees ocak ericas eee eeee eee oees 13

United States v. Stark, 24 M.J. 381 (C.M.A.

SER. ie 2.6 eva as ba da ed eae eda eee oes 1.4.9

United States v. Stark, 19 M.J. 519 (A.C.M_R.

Sasi eieee acca eke aaa ee ie 1, 4

State v. Pratt, 89 Md. App. 442, 387 A.2d 779

(1978), aff'd, 284 Md. 516, 398 A.2d 421 (1979). 10

Constitution and Statutes:

Eee ee NR es ac sn a ke a ee l

Uf Mp Re er ae eer ner 2

10 U.S.C. § 802 (1982). ...............-..--- 3

10 U.S.C. § 918 (1982). ....................- »

28 U.S.C. § 1259(3) (Supp. IT 1984). ........... l

Other Authorities:

Military Rule of Evidence 403, Manual for

Courts-Martial, United States (1984). 0...... 4.5.7.9

Federal Rule of Evidence 408. ............... 5

3 Torcia, C., Wharton’s Criminal Evidence § 598

SE IIIT has a's aa dV one woth aac ak eee %

4 Wigmore, Evidence JV 1150, 1151 (Chadbourne

Se es er A he ie tae ene ere S

Other Authorities —Continued: Paye

MacFarlane, Diagnostic Evaluations and the Use

of Videotapes in Child Sexual Abuse Cases, 40

U. Miami L. Rev. 135 (1985). ................ 10

Jn the Supreme Court of the United States

OCTOBER TERM, 1987

CHARLES M. STARK

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 Charles M. Stark 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

24 M.J. 381 (C.M.A. 1987) (Appendix A). The opinion of the

Army Court of Military Review is reported at 19 M.J. 519

(A.C.M.R. 1984) (Appendix B).

JURISDICTION

The judgment of the Court of Military Appeals was entered

on August 31, 1987, affirming petitioner’s conviction dated

January 8, 1983. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1259(3) (Supp. II 1984).

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)

2

Amendment VI: “In al! criminal prosecutions, the ac-

cused shall enjoy the right . . . to be confronted with the

witnesses against him; to have compulsory process for

obtaining witnesses in his favor .. . .”

The Uniform Code of Miliiary 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, robbery,

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 petitioner was charged with unpremeditated murder of

his wife, Emily Stark, on August 19, 1982, in Fuerth, Ger-

many, by suffocating her with his hands. Circumstantial

evidence had linked the petitioner to the death and, after in-

terrogation, the petitioner rendered a sworn statement ad-

mitting that he “caused her death, but that it is not as simple

as that, and that I did not mean for her to die.” (Prosecution

Exhibit 2).

The petitioner was tried at Fuerth, Germany, before a

yeneral court-martial composed of officer members on Oc-

tober 20, November 9 and 17, December 6, 15, 16, and 17,

1982, and January 8, 1983. He pled not guilty to the Charge

and specification alleging unpremeditated murder in viola-

tion of Article 118, Uniform Code of Military Justice

3

{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).

Petitioner relied on the testimony of a forensic psychiatrist

(Dr. Rollins) to assert a complete defense of insanity. In the

defense’s case-in-chief, Doctor Rollins opined that the peti-

tioner, at the time of his wife’s death, suffered from a mental

disease that resulted in a significant probability that the peti-

tioner lacked substantial capacity to conform his conduct to

the requirements of the law (R. 568-573). Doctor Rollins

based his opinion, in part, on his interviews with the peti-

tioner on September 9 and 10, 1982 (R. 557). These inter-

views were videotaped and questions were asked while the

petitioner was both under and not under the influence of hyp-

nosis. The trial judge denied a defense motion to admit these

taped interviews as the basis of Doctor Rollins’ opinion (R.

535-540).

In rebuttal, the prosecution presented expert testimony in-

cluding a forensic psychologist (Dr. Hall). Doctor Hall

disagreed with Doctor Rollins’ conclusions, basing his opin-

ion, in part, on information he derived by viewing the

videotapes of Doctor Rollins’ interview (R. 655-662). Doctor

Hall went on to attack Doctor Rollins’ opinion and its basis in

Doctor Rollins’ analytic procedure. He dismissed Doctor

Rollins’ opinion as a misdiagnosis (R. 662), and testified that

he was “not impressed” with the hypnosis of the petitioner (R.

663). In Doctor Hall’s opinion, the hypnotic procedure was

not reliable because the petitioner “wasn’t really successful”

in (a) hand levitation, (b) petitioner’s voice “was not mono-

toned,” and (c), at one point, the petitioner reacted to a “loud

sound” in an uncharacteristic manner for truly hypnotized pa-

tients (R. 664). Throughout his testimony, Doctor Hall direct-

ly challenged the reliability of Doctor Rollins’ procedure by

referring to the “alleged hypnosis” (R. 676, 679).

After attempting to rehabilitate the petitioner’s defense

through Doctor Rollins’ own testimony in surrebuttal (R.

731-746), the petitioner again moved to have the videotaped

interview sessions played for the court members (R.749-750).

While acknowledying that there would be “no prejudice to the

government” by showing the tapes (R. 757), and that the

4

tapes were “probative” (R. 537), the judge denied the motion.

The judge reasoned that he would not allow the tapes to be

shown because viewing them would “create a tremendous ad-

ministrative .. . impossibility to function [sic] for the court

[and] would serve no real purpose” (R. 756) and that the pros-

ecution would be denied the right to cross-examine the

statements made in the tapes (R. 757).

Doctor Hall was then called by the Court to testify further

about Doctor Rollins’ procedure. Doctor Hall explained that

he had never heard of the procedure employed by Doctor

Rollins, and flatly stated that he had “some misgivings” about

it (R. 759-761).

The court-martial entered findings of guilty to the charge

of unpremeditated murder, and sentenced the petitioner to a

dishonorable discharge, confinement for 50 years, total

forfeiture of all pay and allowances, and reduction to the

lowest enlisted grade. The Army Court of Military Review af-

firmed the findings and the sentence. United States v. Stark,

19 M.J. 519 (A.C.M.R. 1984) (Appendix B).

The federal constitutional question involved has been

substantially litigated at all stages of the appellate process.

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

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

WHETHER THE MILITARY JUDGE ERRED BY

REFUSING TO ADMIT INTO EVIDENCE DEFENSE

EXHIBIT J FOR IDENTIFICATION, THE

VIDEOTAPES OF DR. ROLLINS’ INTERVIEWS OF

APPELLANT.

On August 31, 1987, the Court of Military Appeals affirmed

the decision of the Army Court of Military Review, holding

that “the admissibility of these tapes turns on Mil.R.Evid.

403” and “the admission of the tapes would have clearly given

appellant an opportunity to smuggle eight hours of testimony

before the court members without subjecting himself to the

crucible of cross-examination.” 24 M.J. at 385.

REASONS FOR GRANTING THE WRIT

In rejecting the petitioner’s arguments for the admission of

the videotapes after the government used the tapes to attack

BEST AVAILABLE COPY |

5

the petitioner’s expert’s opinion, the lower military courts

have fashioned a per se rule that deprived the petitioner the

opportunity to present a defense of insanity. The military

courts have rigidly applied a rule of evidence! which er-

roneously gave the government an absolute right of confron-

tation which prevents probative, non-prejudicial evidence on

the central point of the defense position from being heard by

the trier of fact. Such an onerous exclusion casts significant

doubt upon the reliability of the trial result in this case and

establishes a far-reaching precedent which materially

restricts a defendant's due process right to present adefense.

I. BY REFUSING TO ADMIT THE VIDEOTAPES OF-

FERED BY THE PETITIONER, THE JUDGE

DEPRIVED HIM OF A FAIR TRIAL THROUGH

THE CREATION OF A PREEMINENT RIGHT OF

CONFRONTATION AND CROSS-EXAMINATION

IN THE GOVERNMENT.

The lower courts chose to exclude the highly probative

tapes from evidence because of the misplaced reliance on the

notion that the government has an absolute right to confront

the witnesses against it. The petitioner firmly asserts that

nowhere is the government given the unassailable right to

cross-examine every bit of evidence produced at trial. The

constitutional right to confront witnesses is given to the ac-

cused, not the government.

The petitioner fully recognizes that “[c]ross-examination of

a witness is a matter of right.” Alford v. United States, 282

U.S. 687, 691 (1931). He also does not dispute the fact that

the rights of confrontation and cross-examination are “[cler-

tain principles [that] have remained relatively immutable in

our jurisprudence.” Greene v. McElroy, 360 U.S. 474, 496

(1959). However, the status of a party’s right to cross-

examine evidence offered by an opponent does not rise to the

level of preeminence to which the lower courts have elevated

that right in this case.

' Military Rule of Evidence 403 [hereinafter cited as Mil.R. Evid. 403]

which is identical to Federal Rule of Evidence 403.

6

Every proponent’s admission of evidence does not

necessarily give rise to a cross-examination right in the oppo-

nent. Even an unavailable declarant’s hearsay statement is

admissible against a criminal defendant, if it contains suffi-

cient indicia of reliability. Ohio v. Roberts, 448 U.S. 56 (1980).

In petitioner’s case, the government’s right to cross-

examination articulated by the lower courts pales in com-

parison, especially when there is no constitutional basis for

such a right.

Asserting that the petitioner cannot offer direct, reliable,

and probative evidence as a central part of his defense, mere-

_ly because the government would not have an opportunity to

cross-examine it, perverts the concept of due process. The

lower courts have given the government a “constitutional”

level protection at trial to the derrogation of the petitioner's

firmly-rooted constitutional right to a fair trial.

Furthermore, even if the government was recognized as

possessing a trial right that overshadowed an accused in-

dividual’s constitutionally-based right to present a defense,

adequate substitutes for that cross-examination were present

in this case. Delaware v. Van Arsdale, 475 U.S. , 106

S.Ct. 1431 (1986). The government had an adequate oppor-

tunity to cross-examine the defense expert. They had an am-

ple opportunity to present rebuttal evidence. (It was this

rebuttal which provided the compelling need tor the admis-

sion of the videotapes.) They had an ample opportunity to

review the tapes prior to their being offered. They could have

renewed their motion for discovery which had previously

been denied. Finally, they could have been afforded ap-

propriate limiting instructions by the trial judge (as conceded

by the defense theory of admission). Additionally, the peti-

tioner asserts that the government did not even need to cross-

examine the statements made on the tapes: his assertion of

the defense of insanity admitted the act of homicide.

The tapes were offered to corroborate Doctor Rollins’ opin-

ion and refute Doctor Hall’s contrary assertions, and since

Doctor Rollins already testified as to many of the statements

uttered by the petitioner during the hypnotic session (R.

558-560), the court members were already aware of the

7

central issue in this case. They had already heard, through

the recollection of the experts, what the petitioner’s story

was. Cross-examination would not have added anything

substantial to the fact-finding process that was not already

before the court members.

Il. THE LOWER COURTS’ OVERLY RIGID APPLICA-

TION OF MIL.R.EVID. 403 IMPROPERLY

DENIED THE PETITIONER’S RIGHT TO PRE-

SENT A DEFENSE.

The lower courts have impermissibly used the rules of

evidence to prevent the admission of highly relevant evidence

offered by the petitioner to assert his defense of insanity.

Such a use is constitutionally unacceptable. Chambers v.

Mississippi, 410 U.S. 284 (1973); Rock v. Arkansas, ___

U.S. ____, 107 S.Ct. 2704 (1987). The heart of the petitioner’s

case was the expert opinion of Doctor Rollins, which was

based upon the demeanor of the petitioner while under the in-

fluence of hypnosis. The videotapes of the petitioner’s hyp-

notic session were the linchpin of Doctor Rollins’ basis for

that opinion. As the trial progressed, the central issue of the

case became whether Doctor Rollins’ opinion had any

credence, especially in light of the vicious professional attack

by a prosecution expert, Doctor Hall, and the fact that the

petitioner’s mens rea was the sole point of contention.

Given this background, the probative value of any evidence

which would actually show whether or not the petitioner was

in a hypnotic trance is very great. In fact, the trial judge ad-

mitted that the tapes were probative (R. 537). It cannot be

overstated that the petitioner’s entire defense rested upon

the court members’ own determination that Doctor Rollins

had a plausible opinion. If the trial court decided that the

most reliable evidence that the petitioner could offer to rebut

the prosecution’s highly discrediting: and specific testimony

was inadmissible, where the judge was steadfast in his refusal

to view the offered evidence before making his rulings (R. 539,

749-757), then the trial court effectively denied the petitioner

the fundamental right to present a defense. Thus, a rule of

evidence was “applied mechanistically to defeat the ends

8

of justice.” Green v. Georgia, 442 U.S. 99, 97 (1979) (per

curiam) (quoting Chambers, 410 U.S., at 302).

In the instant case, the lower courts intentionally blurred

the evidentiary standards that separately govern both

testimonial and demonstrative evidence. Recordings of con-

versations constitute demonstrative, as opposed to

testimonial, evidence. United States v. Onori, 535 F.2d 938,

947 (5th Cir. 1976). Demonstrative evidence differs from

testimonial evidence because demonstrative evidence does

not possess the “limitations” of testimony. 4 Wigmore,

Evidence §§ 1150, 1151 (Chadbourne rev. 1972).

Demonstrative evidence is inherently reliable because it is to

be directly perceived by the factfinder as existing or not. It

does not rely on the memory or bias of a witness. There is no

danger of drawing an incorrect inference from the evidence,

as there is with a witness’ perception of an event. /d. Given

this inherent reliability, there is no need for cross-

examination of facts that are to be directly perceived by the

court members.

At trial, the judge decided that the statements made by the

petitioner on the tapes would be unfair to the government if

they could not cross-examine them. He therefore used

testimonial rules to guide his exclusion of the tapes. It is eVi-

dent that he intentionally did this because (a) he refused to

view the tapes before he made a decision, and (b) he previous-

ly applied demonstrative standards to allow into evidence

prosecution photographs depicting the victim in an effort to

explain the pathologist’s expert opinion on the cause of death.

(R. 464-470).

The Court of Military Appeals noted that they were faced

with a question of admissibility of “out-of-court statements

relied upon by expert witnesses,” but then acknowledged that

this evidence was of a demonstrative nature. Despite the

demonstrative characterization, the Court also chose to apply

the same, erroneous, confrontation-based testimonial

analysis.”

2 The Court of Military Appeals noted that the issue of whether the peti-

tioner was hypnotized was “a fact contested by the Government's experts.”

9

Such an analysis is, plainly, wrong. “There is no general

rule that the voices of parties toa taped telephone conversa-

tion who do not appear at trial must be suppressed.” United

States v. Ariza-Ibarra, 605 F.2d 1216, 1224 (1st Cir. 1979).

The petitioner's plight becomes especially noteworthy when

the military courts relied on this scheme to unconstitutionally

deprive the petitioner of his right to present his defense. “[T Jo

be admissible, the real evidence must be in substantially the

Same condition as at the time of the crime: must be properly

identified; and must be relevant.” 3 Torcia, C., Wharton’s

Criminal Evidence § 598 (14th ed. 1987). Under this general

test, the evidence of the hypnotic interviews was as admissi-

ble as the photographs of Emily Stark’s body.

Equally impermissible was the lower courts’ insistence that

Mil.R.Evid. 403 mandated exclusion of the videotapes. All

the parties to the trial clearly understood that the admission

of the tapes posed “no prejudice to the government” (R. 757).

Doctor Rollins and Doctor Hall both provided ample

testimony as to the objective indicia of successfully induced

hypnosis and the misconceptions generally associated with

the procedure. The petitioner offered the tapes into evidence

with the understanding that the statements in the tapes

would not be used to prove the truth of the matters asserted

but merely as evidence of the basis of the expert’s opinion.

There was never any danger of misleading the members or

confusing the issues: the members had been educated as to

how to interpret the tapes. They knew specifically what to

look for. They could easily have determined (a) whether the

petitioner’s hand levitation supported the testimony of Doc-

tor Rollins or Doctor Hall, (b) whether the petitioner’s voice

was monotoned as described by Doctor Rollins and chal-

lenged by Doctor Hail, and (c) whether the petitioner reacted

to a “loud sound” as asserted by Doctor Hall and refuted by

Doctor Rollins.

24 M.J. at 384. However, the court refused to address the demonstrative

nature of the evidence in surrebuttal, totally focusing instead on the

testimonial content of the evidence. In so doing, the court ignored the exact

reason for which the defense offered the tapes in surrebuttal: to show the

facts of the petitioner's actual behavior, not what was said during the inter-

views.

10

Rather than opening a new round of rebuttal-surrebuttal,

this evidence would have served to close the information gap

between the contending positions of the experts. It would

have aided the fact-finder without confusion. It would have

resolved the challenges to this linchpin in the petitioner's in-

sanity defense, contrary to the prosecution, in favor of the

petitioner. In a similar case involving an insanity defense the

Second Circuit Court of Appeals opined that “[s]ince the pro-

bative value of the evidence proffered was so great, it should

have not been excluded in the absence of a significant show-

ing of unfair prejudice.” United States v. Dwyer, 539 F.2d

924, 928 (2d Cir. 1976). Moreover, the introduction of

videotapes into evidence to explain the basis of a challenged

expert’s opinion is currently practiced in several jurisdic-

tions. United States v. McCollum, 732 F.2d 1419, 1422 (9th

Cir.), cert. denied, ____ U.S. , 105 S.Ct. 301 (1984) (trial

judge allowed the defense to present part of a videotape

showing its expert’s hypnotic procedure when the prosecu-

tion experts asserted, in rebuttal, that the defendant was not

hypnotized during the defense expert's interview); State v.

Pratt, 39 Md. App. 442, ___, 887 A.2d 779, 786, ajfd, 284

Md. 516, 398 A.2d 421 (1979) (regarding the admissibility of a

psychiatrist’s interview of defendant to explain the basis of

his expert opinion of insanity, “an expert is not only per-

mitted but may be required to demonstrate the basis of his

opinion”); MacFarlane, Diagnostic Evaluations and the Use

of Videotapes in Child Sexual Abuse Cases, 40 U. Miami L.

Rev. 185, 144 (1985).

The petitioner is mindful of the proposition that “an in-

dividual’s right to present evidence is subject always to

reasonable restrictions.” Rock v. Arkansas, _—_ U.S. __.,

107 S. Ct. at 2715-16 (Rehnquist, J., dissenting). However,

the lower courts have impermissibly created a government

confrontation right and used the framework of evidentiary

rules to lend the aura of reasonableness to their creation. In

the instant case, the petitioner effectively lost his right to

present an insanity defense when the military courts decided

that this Fifth Amendment right was subordinate to a

“ereater” government confrontation right.

1]

The petitioner realizes that perhaps he would not be al-

lowed to introduce the videotape evidence if that evidence

was somehow irrelevant, untrustworthy, or was designed to

undermine any “reliability in the ascertainment of guilt and

innocence,” Chambers v. Mississippi, 410 U.S. at 302. Given

the nature of the defense and the specific issues raised at

trial, however, the lower courts could not constitutionally

design a rule to exclude evidence who’s trustworthiness is not

“inherently unreliable.” Rock v. Arkansas, ___ US. arenes

107 S.Ct. at 2715.

It is essential to note that even though the petitioner’s

counse! pointed out to the judge that the tapes had become

much more relevant and probative in surrebuttal than

previously, the judge still refused to view their contents

before ruling or to have the prosecution demonstrate how

they would unfairly prejudice the government. In fact, the

judge recognized that no prejudice would accrue against the

government upon the tapes’ admission into evidence (R. 757).

Against this background, the judge’s rigid rulings, in the

absence of full knowledge as to what was, in fact, on the

videotapes, directly deprived the petitioner of his due process

right to present his insanity defense against a murder

charge.

Ill. EXCLUSION OF THE VIDEOTAPE EVIDENCE

PRODUCED AN UNRELIABLE TRIAL RESULT

BECAUSE THE GOVERNMENT'S PROOF OF

SANITY WAS NOT SUBJECT TO “MEANINGFUL

ADVERSARIAL TESTING.”

The lower courts’ rulings have fatally infected the trial with

an absence of the fundamental! fairness that a criminal de-

fendant should constitutionally enjoy. The evidence con-

tained in several short, critical sequences of the videotapes

would have settled the issue of the petitioner's insanity. At

the very least, the evidence would have raised a reasonable

doubt as to sanity which the prosecution would have been

again burdened to resolve. The lower courts, however, have

given birth to an evidentiary scheme which prevents the peti-

tioner from presenting all the evidence that was material and

favorable to his defense. Such a scheme necessarily pre-

12

vented a fair trial. In United States v. Valenzuela-Bernal, 458

U.S. 858 (1982), the defendant could not establish that the

evidence he was estopped from presenting was, in fact,

material and favorable. In this case, that threshold has been

met.

The petitioner asserts that he had been denied the constitu-

tional right to a meaningful opportunity to present a com-

plete defense without a valid justification to excuse this

denial. Such an unjustified exclusion of the videotapes has

deprived the petitioner “of the basic right to have the prose-

cutor’s case encounter and survive the crucible of meaningful

adversarial testing.” Crane v. Kentucky, __. U.S. ___, 106

S.Ct. 2142, 2147 (1986).

In challenging the lower courts’ ruling, the petitioner is

mindful that he is not necessarily entitled to a “perfect trial.”

Delaware v. Van Arsdale, 475 U.S. ___, 106 S.Ct. 1431

(1986). He seeks, however, and is entitled to, the opportunity

to “fairly . .. present at least enough information to ihe jury,

in a meaningful manner, as to permit it to make a sensible

determination.” Ake v. Oklahoma, 470 U.S. 68, 82 (1985).

Although the facts of Ake and the instant case differ in

many respects, the overall result to both defendants was a

denial of the right to present a defense. Because he was at-

forded psychiatric assistance, the petitioner was in a better

pretrial position than Mr. Ake. Unfortunately, the trial judge

melted that potential advantage away and, in effect, denied

the petitioner the same opportunity to fairly present his in-

sanity defense. The petitioner’s defense was rendered mean-

ingless by the viscious attack by Doctor Hall on Doctor

Rollins’ credibility. It was then reduced to a nullity by the

denial of the opportunity to present relevant, probative,

credible evidence to show the court members the clearly

discernible, objective basis supporting Doctor Rollins’ opin-

ion, refuting Doctor Hall’s opinion.

The particularly distressing result of the trial is that the

government was arbitrarily handed a “strategic advantage

over the defense [which] cast a pall on the accuracy of the ver-

dict obtained.” Ake v. Oklahoma, 470 U.S. at 79. Given the

importance of the fact of whether or not the petitioner was

13

under the influence of hypnosis, the court members had to

see for themselves. They already possessed the requisite

sophistication to view the few minutes of videotape necessary

to decide this well focused issue. The court members should

have been allowed to resolve the issue with all the evidence

available, as they are capable of doing, and as the “framers of

the Bill of Rights expected.” United States ». Torniero, 735

F.2d 725, 734 (2d Cir. 1984). Accord, United States v. Clif-

ford, 704 F.2d 86 (3d Cir. 1983); United States v. McRary,

616 F.2d 181 (5th Cir. 1980); United States v. Ives, 609 F.2d

930 (9th Cir. 1980); United States v. Smith, 507 F.2d 710 (4th

Cir. 1974). The judge’s exclusionary ruling deprived the court

members of the evidence needed to assure a reliable verdict.

The central question of which expert was to be believed was

theirs to decide, Barefoot v. Estelle, 463 U.S. 880, 902 (19838),

and the petitioner had the right to present the evidence

needed to fairly present his defense to them.

CONCLUSION

The exclusion of the videotapes denied the petitioner a

traditional, fundamental standard of due process, namely the

right to a fair opportunity to present a defense. The lower

14

courts combined an evidentiary scheme with the creation of a

perceived absolute right in the prosecution to override the

petitioner’s constitutional protections.

Respectfully submitted,

JOUN T. EDWARDS

Colonel, Judge Advocate

General’s Corps (JAGCO)

United States Army

U.S. Army Legal Services Agency

Defense Appellate Division

5611 Columbia Pike

Falls Church, VA 22041

Counsel of Record

and

DALE K. MARVIN

Major, JAGC

United States my

BRIAN D. DIGIACOMO

Captain, JAGC

United States Army

Appendices

eo

APPENDIX A

UNITED STATES COURT OF MILITARY APPEALS.

No. 51,666.

CM 4440388.

UNITED STATES, APPELLEE,

v.

CHARLES M. STARK, SPECIALIST FOUR

U.S. ARMY, APPELLANT.

Aug. 31, 1987.

~ For appellant: Captain Floyd T. Curry (argued), Lieuten-

ant Colonel Paul J. Luedtke, Major Eric T. Franzen, Captain

Bernard P. Ingold (on brief), Colonel William G. Eckhardt,

Colonel Brooks B. LaGrua, Lieutenant Colonel Arthur L.

Hunt, Captain Thomas J. Feeny, Captain David W.

Sorensen, Captain Keith W. Sickendick, Captain Brian D.

DiGiacomo. ¢

For appellee: Captain Amaury R. Colon (argued), Colonel

James Kucera, Lieutenant Colonel Adrian J. Gravelle, Major

Byron J. Braun (on brief), Captain Andrew D. Stewart.

OPINION OF THE COURT

COX, Judge:

A general court-martial composed of officers convicted ap-

pellant of the unpremeditated murder of his wife, in violation

of Article 118, Uniform Code of Military Justice, 10 U.S.C,

) 918. He was sentenced to a dishonorable discharge, con-

finement for 50 years, total forfeitures, and reduction to E-1,

The convening authority approved the sentence, and the

Court of Military Review affirmed the findings and sentence

as approved, 19 M.J. 519 (1984).

We vranted review on the following issues:

(la)

WHETHER THE MILITARY JUDGE ERRONE-

OUSLY ADMITTED STATEMENTS OF APPEL-

LANT WHICH WERE INVOLUNTARY AS A MAT-

TER OF LAW.

Il

WHETHER THE MILITARY JUDGE ERRED BY

REFUSING TO ADMIT INTO EVIDENCE DEFENSE

EXHIBIT J FOR IDENTIFICATION, THE VIDEO-

TAPES OF DR. ROLLINS’ INTERVIEWS OF AP-

PELLANT.

During a pretrial Article 39(a)! session, trial defense

counsel moved to suppress a statement made by appellant to

agents of the Criminal Investigation Command (CID)

because: (1) the statement was the product of an illegal

seizure of appellant; (2) the investigating agents ignored his

request to remain silent; and (3) the statement was obtained

through the exercise of illegal coercive techniques.

On the morning of August 19, 1982, German police

authorities notified the CID that they had found a woman's

body which had been identified as Emily Stark. At the same

time, appellant was at a military police station reporting his

wife’s absence for the second time that day. CID Agent Paul

Peterson had appellant brought to his office to inform him

that the body of his wife had been found.

Thereafter, Agent Peterson learned that he might be in-

vestigating a homicide and advised appellant of his rights

under Article 31, UCMJ, 10 U.S.C. § 831. Appellant waived

his rights and expressed his willingness to make a statement.

At no time throughout this period was appellant’s departure

from the station restricted or prohibited. Appellant was then

taken to the hospital to identify his wife’s body and returned

to the CID office at approximately 12:30 in the afternoon.

There, he was questioned until about 2:30 p.m. The interview

was terminated when appellant told the agents to either

' Uniform Code of Military Justice, 10 U.S.C. § 839(a).

3a

“book him or let him go”; however, he did not leave the sta-

tion immediately. Instead, he let the agents know that he did

not want to go back to his barracks, expressing the desire to

spend the night at the home of friends. Agent Peterson made

arrangments for him to do so, and appellant agreed to return

to the CID Office the next day to take a polygraph examina-

tion.

Appellant and the apartment where he was staying were

kept under surveillance throughout the night. Although the

agents had asked appellant’s friends to transport him back to

the office the following day, they were concerned that he

might miss the appointment. Consequently, early in the

morning, Special Agent Petersen drove to the apartment to

get appellant; they returned to the CID office, and appellant

was interviewed by a polygraph examiner. The examiner also

advised appellant of his rights, including those pertinent to

the administration of a polygraph examination. Again ap-

pellant waived his rights and agreed to take the polygraph

examination. When the examination was completed, the ex-

aminer reviewed the charts and discussed the case with ap-

pellant. After further questioning, a second polygraph ex-

amination was administered. Appellant then expressed a

desire to speak to his friends, and arrangements were made

to bring them to the CID office. They talked with appellant

for about 50 minutes; sometiine thereafter he executed the

written statement giving rise to the motion to suppress.

The military judge denied the motion to suppress, finding

that: appellant had not been detained unlawfully; he had been

warned of all his rights; he had given the confession freely

and voluntarily; and he had not been subjected to any undue

influence or coercion. The judge admitted the confession sub-

ject to corroboration.

I

The threshold question of whether a person has been

“seized,” “arrested,” or “apprehended” is one of fact which

must be resolved by examining all the details and cir-

cumstances in the context of military society. United States v.

4a

Scott, 22 M.J. 297 (C.M.A.1986); United States v. Schneider,

14 M.J. 189 (C.M.A.1982); United States v. Leiffer, 13 M.J.

337 (C.M.A.1982); United States v. Kinane, 1 M.J. 309

(C.M.A.1976). “[NJot ... every interrogation at the ‘police

station’ amounts to a custodial interrogation.” United States

v. Schneider, supra at 195 (footnote omitted). Appellant

himself initiated contact with police authorities for the pur-

pose of reporting that his wife was missing. The CID agent

contracted appellant for the purpose of informing him of his

wife’s death. It was only after the agent learned that the wife

died under suspicious circumstances that he attempted to in-

terview appellant as a suspect. At that time, appellant was

advised of his rights and obtained a waiver prior to the inter-

view. When appellant required the agent to “book him or let

him go,” the agent did the latter. Further, the agent helped

appellant arrange to spend the night at the home of some

friends rather than return to his barracks.

There is nothing in the record to suggest that appeilant’s

decision to return the following day for the purpose of taking

a polygraph examination was not his own voluntary choice.

The only arguable point that appellant might have is based on

the fact that the CID agents showed up the following morn-

ing at his friends’ house to transport him to the examination.

Even under this circumstance, there was no force, compul-

sion, or order to report. We cannot speculate as to the course

of conduct of the agent had appellant elected not to voluntari-

ly go with the agents to the examination. Given the totality of

the evidence before us, we conclude that appellant was never

apprehended or arrested until after his confession had been

freely and voluntarily given. We are satisfied that he was

properly advised of his rights under Article 31 and the Con-

stitution and that his decision to confess was the product of

his own “unfettered will” to confess. Compare United States

v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497

(1980), with Dunaway v. New York, 442 U.S. 200, 99 S.Ct.

2248, 60 L.Ed.2d 824 (1979); Brown v. Illinois, 422 U.S. 590,

95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); see also California v.

Beheler, 463 U.S. 1121, 1125 n. 3, 103 S.Ct. 3517, 3520 n.3,

77 L.Ed.2d 1275 (1983).

5a

We are further convinced that appellant was not ques-

tioned after expressing a wish to remain silent. When ap-

pellant told the agents to “book him or let him go,” they com-

plied by letting him go. He voluntarily returned to take the

polygraph examination the next day. Under these cir-

cumstances we are not convinced that the utterance of these

words was a decision to exercise his “right” to remain silent;

rather it was a decision to stop talking with the CID at that

time. Because of the new rights warning given him by the

polygraph examiner on the following day, we are satisfied

that appellant’s rights were not violated. Michigan v. Mosley,

423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975); see United

States v. Hill, 5 M.J. 114 (C.M.A.1978); United States v. Col-

lier, 1 M.J. 358 (C.M.A.1976); United States v. DeChamplain,

22. U.S.C.M.A. 150, 46 C.M.R. 150 (1973). We also observe

that, unlike the accused in United States v. Applewhite, 23

M.J. 196 (C.M.A.1987), appellant never at any time invoked

his right to consult with a lawyer. See United States v.

Harris, 19 M.J. 331 (C.M.A.1985), rev'd. on reconsideration,

21 M.J. 173 (C.M.A.1985); United States v. Muldoon, 10 M.J.

254 (C.M.A.1981); see also Smith v. Illinois, 469 U.S. 91, 105

S.Ct. 490, 83 L.Ed.2d 488 (1984); Edwards v. Arizona, 451

U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

Finally, we are convinced beyond a reasonable doubt that

the statement was not the product of unlawful coercion.

United States v. Schneider, supra.

II

The second granted issue was raised in the following fac-

tual context. Appellant defended against the charge claiming

a lack of mental responsibility or insanity. Prior to the

testimony of the defense expert psychiatrist; Dr. Bob Rollins,

defense counsel moved the admission into evidence of

videotapes of the interview of appellant conducted by the

witness. The tapes were offered to aid the court members in

evaluating the opinion of the psychiatrist. The members

“would be able to see his [appellant’s] reaction, to see how he

responded to questions, to basically be able to put their own

6a

evaluations and to invite—to legitimately evaluate ... [the

doctor’s] opinion.” Also, appellant’s expert witness claimed

that appellant was hypnotised during some of the interviews,

a fact contested by the Government’s experts.

The Government objected to the admissibility of the

videotaped interviews on two grounds: First, that evidence

adduced under hypnosis is not reliable; second, that the

evidence is hearsay and would permit appellant to offer his

testimony to the members without being called as a witness.

The military judge sustained the objection, reasoning that the

tapes “would be a left-handed way of putting . . . [appellant]

on the stand and not being subject to” cross-examination. He

also reasoned that the testimony would be cumulative

because it was already before the court members through the

testimony of the experts.

It should first be noted that the military judge did not

predicate any of his rulings on the fact that appellant may or

may not have been hypnotised. We are not confronted with

deciding the question of whether hypnotically-refreshed

testmony or statements given by an accused under the in-

fluence of hypnosis are admissible in evidence. See Rock v.

Arkansas, ___ U.S. ___, 107 S.Ct. 2704, 96 L.Ed.2d ___

(1987); United States v. Robinson, 21 M.J. 937

(A.F.C.M.R.1986), pet. granted, 23 M.J. 167 (1986). Thus,

although we agree with the Court of Military Review’s con-

clusion that the tapes were not per se inadmissible because of

the influence of “hypnosis” on the interviews, we do not at-

tempt to fashion a rule of law governing this type of

testimony. 19 M.J. at 526. We are confronted, however, with

the admissibility of out-of-court statements relied upon by ex-

pert witnesses in the formulation of their opinions.

Mil.R.Evid. 703, Manual for Courts-Martial, United States,

1969 (Revised edition), provides that an expert opinion may

be based upon “facts or data... made known to the expert,

at or before the hearing... . [T]he facts or data need not be

admissible in evidence.” The military judge concluded that

the psychiatrist could base his expert opinion on the

videotaped interviews and indeed could discuss his reliance

upon the interviews during his testimony.

Ta

Mil.R.Evid. 801(c) defines hearsay as “a statement, other

than the one made by the declarant while testifying at the

trial or hearing, offered in evidence to prove the truth of the

matter asserted.” Appellant contended at trial and now that

the tapes were not being offered “for the truth of the matter”

but rather for other legitimate purposes. For example, the

tapes would attack the credibility of the Government expert's

opinion and bolster the defense expert’s opinion to prove that

there was an underlying factual basis for his opinion.

This situation has been described as a possible attempt to

“‘smuggle’” hearsay evidence into the case under the guise

that it is not being offered for “the truth of the matter

asserted” and thus falls without the definition of hearsay. It is

“suggest({ed] that Rule 403 is an appropriate tool for handling

the problem. Some explanation for the expert opinion should

be provided, but the judge should make sure that no party

takes unfair advantage of Rule 703.” S. Salzburg, L. Schinasi,

and D. Schlueter, Military Rules of Evidence Manual 596 (2d

ed. 1986).

We agree that admissibility of these tapes turns on

Mil.R.Evid. 403.2 That rule provides:

Although relevant, evidence may be excluded if its pro-

bative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading

the members, or by considerations of undue delay, waste

of time, or needless presentation of cumulative evidence.

We have reservations that evidence which is clearly “ex-

culpatory” or which tends to make it less likely that an ac-

cused committed an offense could be excluded because of con-

siderations “of unfair prejudice” to the Government. See

2 Before analyzing the military judge’s ruling under Mil.R.Evid. 403,

another distinction is helpful. The avowed purpose for offering the

videotapes was to help the members to understand the expert’s testimony.

This type of evidence has come to be know as “demonstrative” evidence.

United States v. Heatherly, 21 M.J. 113 (C.M.A.1985). The decision to per-

mit or deny the use of demonstrative evidence has generally been left to

sound discretion of the trial judge. See generally Annot., 9 A.L.R.2d 1044

(1950); 41 A.L.R. 4th 877-954 (1985).

Sa

United States v. Gipson, 24 M.J. 246 (C.M.A.1987); see also

Rock v. Arkansas, supra. If the evidence is confusing “or

misleading,” or a “waste of time” (which we take as another

way of describing a lack of relevance) or a “needless presenta-

tion of cumulative evidence,” most certainly a military judge

can rule the evidence inadmissible.

Here we conclude, as did the Court of Military Review, that

the military judge properly excluded the videotapes.* First,

he permitted the psychiatrist to testify as to the basis of his

expert opinion, including testifying about the videotapes and

the “hypnotic” interviews. Second, the admission of the tapes

would have clearly given appellant an opportunity to smuggle

eight hours of testimony before the court members without

subjecting himself to the crucible of cross-examination. State

v. Chase, 206 Kan. 352, 480 P.2d 62 (1971). Third, as noted by

the Court of Military Review, the use of hypnotised

testimony itself is not without controversy and may be con-

fusing and misleading. Rock v. Arkunsas, supra. Fourth, the

judge ruled that it was “not necessary” for the “court

members [to] ... see the process that he [the psychiatrist]

went through in order for them to be able to understand and

to determine and apply the basis of his finding as to the

ultimate conclusion.” Finally, appellant was not denied any

opportunity to offer evidence in his own defense, as his

3’ While the admissibility of videotapes of the psychiatric interview

presents us with a novel question, various states have confronted the issue

and resolved it in various ways. Compare People v. Cartier, 51 Cal.2d 590

335 P.2d 114 (1959); State v. White, 60 Wash.2d 551, 374 P.2d 942 (1962);

with State v. Chase, 206 Kan. 352, 480 P.2d 62 (1971). In Chase, the trial

judge held videotapes of a psychiatric interview of the -defendant while

under the influence of sodium amytal (a truth serum) was inadmissible,

“reasoning that by this means the defendant’s version of the facts and the

circumstances would be shown to the jury without being tested by cross-

examination.” Id. at 66 (emphasis added). The Supreme Court of Kansas

affirmed, finding no abuse of discretion because the doctor “carefully and

articulately explained his purpose in administering the drug, its effect on

defendant and the benefits derived in evaluating defendant’s mental condi-

tion.” Id. at 67. See also State v. Beachum, 97 N.M. 682, 643 P.2d 246

(App.1981); Marshall v. State, 620 P.2d 443 (Okla.Cr.App.1980); State v.

Taggart, 14 Or. App. 408, 512 P.2d 1359 (1973).

Ya ~

expert was allowed to testify fully, and there was no limita-

tion on appellant’s ability to testify in his own defense.

Based upon our review of the record, we are satisfied that

the military judge did not improperly rule the videotapes in-

admissible. Accordingly, there was no error prejudicial to the

rights of appellant.

The decision of the United States Army Court of Military

Review is affirmed.

Chief Judge EVERETT, and Judge SULLIVAN, concur.

10a

APPENDIX B

UNITED STATES ARMY COURT OF MILITARY

REVIEW.

CM 444038.

UNITED STATES, APPELLEE,

v.

SPECIALIST FOUR CHARLES M. STARK, SSN 076-38-0065,

UNITED STATES ARMY, APPELLANT.

24 Sept. 1984.

Captain Bernard P. Ingold, JACG, argued the cause for ap-

pellant. With him on the brief were Colonel William G.

Eckhardt, JAGC, Lieutenant Colonel Arthur L. Hunt, JAGC,

and Captain Thomas J. Feeney, JAGC.

Captain Andrew D. Stewart, JAGC, argued the cause for

appellee. With him on the brief were Colonel James Kucera,

JAGC, Lieutenant Colonel Adrian J. Gravelle, JAGC, and

Captain Richard J. Fadgen, JAGC.

Before SUTER, RABY and COHEN, Appellate Military

Judges.

OPINION OF THE COURT

RABY, Senior Judge:

Contrary to his pleas, appellant was convicted of the un-

premeditated murder of his wife in violation of Article 118,

Uniform Code of Military Justice [hereinafter cited as

UCMJ], 10 U.S.C. § 918 (1976). He was sentenced to a

dishonorable discharge, confinement at hard labor for 50

years, forfeiture of all pay and allowances, and reduction to

the lowest enlisted grade. The convening authority approved

the findings and the adjudged sentence.

lla

I. THE FACTS

Appellant’s wife, Emily, had been in Germany only ten days

at the time of her death. Prior to her arrival on or about 8

August 1982, the appellant had received permission for Emi-

ly to stay with Sergeant Worth’s family and had phoned Emi-

ly from Sergeant Worth’s home. While it is apparent that

Emily and the appellant were experiencing marital dif-

ficulties prior to Emily’s arrival in Germany (Sergeant Worth

overheard telephone conversations regarding divorce), con-

tradictory evidence regarding the nature and degree of this

discord was adduced at trial (appellant informed Specialist

Four McBride that Emily wanted a divorce, but Emily told

Mrs. Worth that she loved her husband and wanted to stay

with him). Emily lived with Sergeant and Mrs. Worth from

the time she arrived in Germany until her death.

On the evening of 18 August 1982, Emily was the Worth’s

home and the appellant was at the Pinder and Nashville

clubs. At about 2350 hours, Emily called appellant because

she was worried about him. Although appellant indicated he

would come home shortly, he did not return until about 0120

hours, 19 August. Emily appeared worried but not angry that

the appellant was late. Mrs. Worth went to bed just as ap-

pellant arrived and did not overhear any conversation.

During an interview conducted on 19 August 1982, ap-

pellant gave an agent of the Criminal Investigation Com-

mand (CID) the following information. He claimed that upon

his late return to the Worths’ quarters his wife became upset,

criticized him, and left the house. Approximately 20 minutes

later, when Emily failed to return, appellant searched for her

and reported to the military police that she was missing. In a

subsequent confession (Prosecution Exhibit 2) which we find

properly admitted at trial (see IV, infra), appellant claimed he

thereafter continued to search for Emily and found her walk-

ing along the road near the canal. Appellant asked Emily to

get into the car and she refused. When appellant persisted,

Emily became verbally abusive. She called appellant “a

nobody,” a “pompous ass,” and other names. She insulted ap-

pellant’s father and deceased mother, praised her family, and

made remarks calculated to anger appellant and to hurt him

12a

emotionally. Appellant told Emily to stop saying these

things, grabbed her, and shook her, but Emily persisted in

her remarks. When appellant grabbed Emily a struggle en-

sued. Emily scratched appellant and he pushed her to the

ground. She hit the pavement hard, and appellant told her to

get in the car. Emily refused and again insulted appellant and

his family. Appellant begged Emily to stop and put his hand

over her mouth to silence her. Appellant denies knowing how

long he held Emily or if she struggled against him. When he

let her go, she fell to the ground. Appellant knelt beside

Emily and realized she wasn’t breathing. He attempted to

revive her by both cardio-pulmonary and mouth-to-mouth

resuscitation, but his efforts were unsuccessful. Appellant

moved Emily’s body and laid it “in the bushes next to the

road,” because he did not want her body lying in the street.

Appellant maintains that he then returned to the Worths’

quarters.

At approximately 0330 hours, appellant entered the

Worths’ bedroom and announced that Emily had left the

house following a discussion with him and that she had taken

her purse. Mrs. Worth observed that appellant’s eyes “were

kind of glaring -dazed” and she found it odd that Emily had

taken her purse as Emily had not taken her purse on other oc-

casions when she walked. Appellant then left, saying that he

was going to look for Emily.

Sergeant Forth informed the court that at about 0330

hours, during his duty as desk sergeant, appellant had

entered the station and reported Emily missing. Sergeant

Forth noted that appellant had appeared to be agitated, hur-

ried, and quite excited. He a!so noticed that there were three

scratches on the outside of appellant’s left bicep, which

Sergeant Forth believed to be “fingernail scratches.” Ap-

pellant did not appear intoxicated at that time.

The Chief of the Department of Pathology at the U.S.

Army Hospital at Nurnberg, Major Roger M. Fossum, MC,

conducted the autopsy on Emily’s body. Emily weighed be-

tween 160 and 170 pounds, as compared to the accused who

then weighed 157 pounds. Major Fossum placed Emily’s time

of death between 0300 and 0600 hours, 19 August 1982,

l3a

noting that, based upon his experience, he “would lean

toward the earlier time frame within that” period,

somewhere from 0300 to 0500 hours. The cause of death was

asphyxia due to suffocation. Major Fossum identified

numerous external abrasions or scrapes of the skin in the

facial area and a few such marks on the right arm of the body.

There were numerous petechial hemorrhages! within

Emily’s eyes and eyelids, on her neck, and on her left

shoulder. Two superficial, parallel, linear scratches or abra-

sions were found on her left nostril. Other minor abrasions

were located on both cheeks and also over the bridge of her

nose. Two slight, reddish areas of discoloration were detected

on the top of her scalp. There was a large abrasion, about six

centimeters long, on her right mid-forearm and there were

several small abrasions and scratches around the front the

back elbow area of her right arm. There was a large area of

contusion and abrasion inside her mouth and there were con-

tusions and abrasions on the inside of her upper and lower

lips. The fingernails on the middle and small fingers of her

left hand were broken and one of these breaks appeared to be

fresh,

Major Fossum stated that the injuries to Emily’s lips and

mouth, in the “greatest likelihood,” were caused by forcibly

placing a hand across Emily’s mouth and, perhaps, her nose.

The scratches on Emily’s nose were likely caused either by

the appellant or by Emily’s fingernails when she attempted to

pull the appellant’s hands from her face. The presence of cer-

tain petechial hemorrhages on both sides of Emily’s neck

coupled with the damage to the inside of both her upper and

lower lips and to her right cheek, is evidence that two

separate though interrelated forces were applied to her body.

The primary force, most likely, was caused by the placement

of the left arm “around the neck from behind with the crook

of the elbow towards the front of the neck with considerable

pressure ... causing obstruction, perhaps collapse, of the

trachea ... or closure of the jugular veins ... and quite

! Petechial hemorrhages are tiny purple spots on the skin caused by rup-

tured blood vessels.

l4a

possibly also the carotid arteries.” Major Fossum opined that

quite likely both of these forces (the hand over the mouth and

the left arm around the neck) occurred at the same time. The

damage to Emily’s inner mouth would require a moderate to

severe amount of force. It would require fair to considerable

pressure on the mouth to prevent a persen from talking, but

only slight pressure on the throat to do so.

Major Fossum further stated that a victim being

smothered, if conscious and otherwise capable of normal

response, would most likely struggle and attempt to

disengage whatever is eausing the asphyxia, perhaps causing

injuries to an assailant. The most likely injuries to such an

assailant would be scratching inflicted by the victim’s finger-

nails.

Major Fossum also informed the court that photographs

taken of the appellant on 19 August 1982 revealed several

superficial scratches or abrasions on appellant’s left arm,

chest, and neck areas. (Slides 1 through 8, Prosecution Ex-

hibit 7). The scratches on appellant’s left arm are consistent

with a defensive wound inflicted by Emily’s fingernails.

Major Fossum opined that the manner in which the

assailant grabbed Emily would normally result in loss of con-

sciousness within 30 to 45 seconds or perhaps as early as 15

seconds. If Emily were struggling very hard, however, caus-

ing the assailant’s grip to lossen occasionally, the period prior

to loss of consciousness could have been prolonged. The

relatively small number of petechial hemorrhages on Emily’s

body tends to indicate that a very brief struggle occurred

before loss of consciousness. While normally it would take ap-

proximately four or more minutes of pressure for death to oc-

cur due to the constriction of a victim’s air supply, the heart

can stop within 20 seconds if the blood supply to the brain is

cut off. Emily had a relatively minor degree of impairment of

blood vessels of the heart. Normally this would be of no

medical significance, but in view of the circumstances

described above, the rapid reduction in her blood flow may

have created a conduction defect which greatly increased the

likelihood of a fatal arrhythmia. The likelihoold of cardiac ar-

rhythmia would also be increased if Emily were in a highly

l5a

emotional state at the time of the incident. There is no way to

determine when cardiac arrest, which occurs in all deaths, oc-

curred. Physical signs on the body, such as hemorrhaging and

pulmonary edema, indicate that a certain amount of time

passed during which Emily was in appellant’s grasp. It is

unlikely that this was a “grab, die type time frame.” The large

bruise on the top, left center of Emily’s head was caused by

some “blunt instrument.” The nature and location of this

bruise make it very unlikely that it occurred in a fall because

it is consistent only with a headlong movement into

something. The bruise could, however, have been caused by

the chin of a taller person who was hoiding Emily with his

hand on her mouth and his arm around her neck.

Il. RESOLUTION OF CERTAIN

CONTROVERTED FACTS

In clarification of certain controverted facts, this Court

makes the following factual findings pursuant to our

statutory authority. Article 66, UCMJ, 10 U.S.C. § 866

(1982).

The appellant and his wife were experiencing marital dif-

ficulties. The accused wanted a divorce, although his wife still

loved him.

The appellant killed his wife before he returned to the home

of Sergeant and Mrs. Worth. The cause of death was as-

phyxia due to Suffocation. He subsequently departed the

Worths’ home and went to the military police station. At both

places he attempted to establish an alibi.

Before Emily’s death, appellant pushed her to the ground

because she was insulting him and his family. He knew she hit

the pavement of the street fairly hard. The top of Emily’s

head was not brusied in this fall. Emily continued to insult the

appellant.

Appellant grabbed Emily, placing his left arm around her

throat and his right arm over her face and nose. Appellant

constricted Emily’s air supply by this hold.

Emily struggled hard to break appellant’s hold and to get

oxyyen into her lungs. Appellant exerted great pressure on

l6a

Emily’s mouth and nose and around her neck, thereby

preventing Emily from breaking loose.

Emily repeatedly scratched appellant’s left arm during this

struggle and additionally scratched her own nose in an at-

tempt to pull appellant’s hand from her face.

Appellant placed his chin on the top of Emily’s head to help

him resist her struggling and, thus, bruised the top of her

head.

Emily broke at least one fingernail while defensively

scratching at appellant during this struggle.

Appellant was aware that he was cutting off Emily’s air

supply during the struggle and he intended to do so.

Appellant continued his hold on Emily for an indeterminate

period of time after she became unconscious.

Ill. SUFFICIENCY OF THE EVIDENCE

Appellant asserts that the evidence is insufficient to sup-

port appellant’s conviction of unpremeditated murder. We

disagree.

Taken as a whole, the testimony of Major Fossum, the

autopsy report, the photographs at Prosecution Exhibit 7,

and the admission of the accused at Prosecution Exhibit 2

prove beyond a reasonable doubt that Emily Sue Stark is

dead, that she died at the time and place alleged, and that her

death, medically caused as described by Major Fossum,

resulted from the act of the accused in grabbing her by the

neck, mouth, and nose in a manner which constricted her air

supply.

The killing of Emily Stark was unlawful, as it was done

without legal justification or excuse. It is accpeted as true

that prior to her death she insulted appellant and his family.

The accused, by his own admission, became uncontrollably

angry and grabbed her. It is also accepted as true that this:

killing was done in the heat of sudden passion and was not

(and was not alleged to be) premeditated. However, this fact

does not suffice to reduce appellant’s criminal culpability. In

order to reduce a charge of unpremeditated murder to a

lesser offense, heat of passion must be accompanied by ade-

17a

quate provocation. United States v. Maxie, 23 C.M.R. 942,

951 (A.F.B.R. 1957), affd, 25 C.M.R. 418 (C.M.A. 1958).

Although heat of passion is a subjective determination, ade-

quate provocation is an objective concept. United States v.

Seeloff, 15 M.J. 978 (A.C.M.R. 1983). It has been long and

consistenly recognized in military law, and rightfully so, that

insulting, abusive, teasing, or taunting remarks, standing

alone, do not constitute an adequate provocation to reduce

murder to voluntary manslaughter. United States v. Seeloff,

supra; United States v. Maxie, supra; United States v. Ed-

wards, 11 C.M.R. 350 (A.B.R. 1953). Thus, we find that ap-

pellant’s heat of passion was not produced by adequate pro-

vocation and that appellant cannot, therefore, rely on Emily’s

verbal conduct as an excuse for his actions.

We futher find that, at the time of the killing, the accused

had the intent to kill or inflict great bodily harm upon Emily

Stark. The intent to kill or inflict great bodily harm can be

proved by circumstantial evidence. United States v. Barnes,

15 M.J. 121, 128 (C.M.A. 1983). See also United States v.

Leonard, 41 C.M.R. 353 (C.M.A. 1970); United States v.

Aragon, 1 M.J. 662, 665-66 (N.C.M.R. 1975); United States v.

Burke, 28 C.M.R. 604 (A.B.R.1959). “It may be inferred that

a person intends the natural and probable consequences of an

act purposely done by him.” Paragraph 197c, Manual for

Courts-Martial, United States, 1969 (Revised edition)

{hereinafter cited as MCM, 1969].

We are mindful that appellant has never acknowledged an

intent either to kill his wife or to do her great bodily harm.

The evidence adduced at trial, however, was extensive and in-

cluded an autopsy report, expert medical testimony regard-

ing the cause of any physical circumstances surrounding the

victim’s death, psychiatric testimony as to the appellant’s

state of mind at the time of his wife’s death, the appellant’s

self-serving, sworn statement regarding the circumstances

surrounding the death, photographic evidence of the condi-

tions of both the victim’s body and the appellant’s body within

a few hours of the incident, and the testimony of other

witnesses to whom appellant made relevant comments either

concerning his relationship with his wife or regarding the

18a

cirumstances surrounding her departure that evening from

the Worth’s residence. This evidence concerning accused’s

state of mind, although circumstantial, proves beyond a

reasonable doubt that appeallant had the requisite criminal

intent when he killed Emily Stark. The accused had a reason

to rid himself of his wife (he wanted a divorce) and he was

provided the opportunity to do so permanently when his wife

provoked him to violence on a deserted road. Based on the

competent evidence of record, this Court finds that there ex-

ists no reasonable doubt regarding appellant’s intent at the

time of this incident. The manner in which he grabbed his

victim-simultaneously around the throat and by the mouth

and neck-is consistent with an intent to kill or to inflict great

bodily injury. Further, the degree of forcse he used against a

struggling victim and his disregard for her obvious resistance

are not consistent with an intent merely to stop the victim

from talking, but rather are consistent with and indicative of

an intent to kill or to do great bodily harm. Moreover, the ac-

cused’s consciousness of guilt is reflected in his subsequent

attempts to establish an alibi at the Worths’ home and at the

military police station. The triers of fact heard the witnesses,

reviewed the admitted documents, and evaluated the weight

to be given each. Like the court members, we are convinced

beyond a reasonable doubt of the appellant’s guilt. We

therefore find this assignment of error to be without merit.

IV. ADMISSIBILITY OF APPELLANT'S PRETRIAL

STATEMENT

Appellant asserts that the military judge committed pre}-

udicial error by admitting Prosecution Exhibit 2, a pretrial

inculpatory statement rendered by the appellant on 20

August 1982. Appellant argues that this statement was in-

voluntary as a matter of law because it was the result of ap-

pellant’s unlawful detention and was obtained in violation of

his right to remain silent. We find this argument to be

without merit.

We find that appellant was properly advised of his right to

remain silent in accordance with Article 31, UCMJ, 10 U.S.C.

§ 831, and of his rights to counsel pursuant to Miranda v.

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Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966),

and United States v. Tempia, 37 C.M.R. 249 (C.M.A. 1967).

He was timely warned of these rights at least twice, first on

the morning of 19 August 1982 and again on the morning of

20 August 1982. He knowingly, intelligently, voluntarily, and

affirmatively waived these rights on each occasion and he did

not thereafter attempt to withdraw these waivers.

We find that appellant was not unlawfully detained by law

enforcement agents at any time during interrogation and

that appellant’s statement, Prosecution Exhibit 2, was the

product of neither coercion, duress, undue influence, nor

unlawful inducement, but was, rather, freely given and

voluntarily made.

We find that appellant’s request on 19 August 1982 that the

CID “book him or let him go” was ambiguous as to his desire

to invoke his rights to silence. We recognize the duty of law

enforcement personnel to scrupulously honor a suspect’s

right to halt interrogation. Michigan v. Mosley, 423 U.S. 96,

96 S.Ct. 321, 46 L.Ed.2d 313 (1975); United States v. Mul-

doon, 10 M.J. 254 (C.M.A. 1981); United States v. Hill, 5 M.J.

114(C.M.A. 1978). Assuming, arguendo, that appellant’s am-

biguous demand was sufficient to alert criminal investigators

that he desired to exercise his rights in some manner, we find

that the agents responded correctly. Following appellant’s

remark, they voluntarily ceased interrogating the appellant

regardingsEmily’s death. Criminal investigators are not mind

readers; when a suspect makes an ambiguous statement

regarding his rights, interrogators may ask reasonable ques-

tions in order to ascertain exactly what rights, if any, the

suspect wishes to assert. Assuming, without deciding, that

the CID initiated such administrative questions in this case,

we find that such inquiry was not prohibited and did not con-

stitute a continuation of the criminal interrogation process.

We find that when the accused directed the interrogators

to “book him or let him go” he was not requesting a perma-

nent termination of interrogation. In any event, we find that

appellant knowingly, intelligently, and voluntarily consented

to return the next day to the CID office for further interroga-

lion.

20a

We find that the appellant returned voluntarily to the CID

office on 20 August 1982 and that he submitted to further in-

terrogation after again knowingly, intelligently, voluntarily,

and affirmatively waiving his Article 31 and Miranda/Tem-

pia rights.

We find that the appellant’s request to speak to the

McBrides did not constitute an assertion of any right provid-

ed by Article 31, firanda/Tempia, or any other constitu-

tionally, statutorily, or judicially created rule of law. A

suspect does not have the right to consult with friends or

relatives prior to criminal interrogation; he has the right to

consult with legal counsel. The record reflects that the

McBrides were friends of the accused, not lawyers. Thus, the

CID could have denied his request to see them.

We further find that the McBrides were neither agents nor

employees of the CID and that they neither assisted the CID

in the interrogation of the accused nor in any manner acted

on behalf of the government during their visit with the ap-

pellant at the CID office.

We find that the military judge did not breach his discretion

in making findings of fact concerning the defense’s suppres-

sion motion, and we find those facts to be true and accurate.

Finally, while it is true that “(t]he government must prove

the voluntariness of confession by a preponderance of the

evidence,” and that “{e]vidence of psychological coercion is to

be considered among the totality of the circumstances in-

volved in determining whether a statement is voluntary

under the fifth amendment,” United States v. Veach, CM

441900 (A.C.M.R. 24 Aug. 1982) (unpub.); see also Spano v.

New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265

(1959); United States v. Collier, 1 M.J. 358, 366-67 (C.M.A.

1976), the Court finds that the government met its burden of

proving that the appellant’s inculpatory statement (Prosecu-

tion Exhibit 2) was voluntary. See Lego v. Twomey, 404 U.S.

477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). Consequently, we

conclude that the appellant’s statement was properly admit-

ted into evidence.

Bis.

2la

V. ALLEGED PRETRIAL ADVICE DEFICIENCIES

The appellant asserts that the military judge erred by deny-

ing the appellant’s motion for a new pretrial advice. We

disagree.

With respect to the appellant’s request for a new pretrial

advice, we note that “(t]he test for materiality is whether

there is a fair risk the omission of fact would mislead the con-

vening authority in his prosecutorial decision to determine

the appropriate level of court-martial or what charges should

be referred.” United States v. Clements, 12 M.J. 842, 845

(A.C.M.R. 1982), pet. denied, 13 M.J. 232 (C.M.A. 1982).

Even had the pretrial advice been accurate in every detail, we

find the appropriate level of referral in this case to have been

a general court-martial. The minor irregularities in the in-

stant pretrial advice neither misled the convening authority

nor caused him inappropriately to refer this case to a general

court-martial.2 Consequently, we find this assignment of er-

ror to be without merit.

VI. VIDEO TAPES OF PSYCHIATRIST’S INTERVIEW OF

APPELLANT

Appellant asserts that the military judge erred by refusing

to admit into evidence video tapes of the interviews of ap-

pellant conducted by his civilian psychiatrist, Dr. Rollins.

Defense sought the admission of these tapes prior to find-

ings. These interviews included a period during which the ap-

pellant was under hypnosis. The military judge denied admis-

sion of these tapes because he did not find it essential that the

court receive into evidence all research and investigative

2 We note that effective 1 August 1984, pursuant to R.C.M. 406(b), the

pretrial advice need no longer contain a summary of the evidence. The

discussion of that rule, which constitutes persuasive secondary authority,

suggests that a summarized discussion of the evidence may be included

when appropriate. Failure to include such information will not, however,

constitute error. In light of the new rules for courts-martial, assignments

of error such as this should soon be eliminated.

22a

results which formed the basis for Dr. Rollins’ expert opinion

in order to evaluate the weight to be given that testimony.

The defense asserted that this evidence should be admitted

because its probative value substantially outweighed any

possible prejudice inherent in its admission. Mil.R.Evid. 403.

We find the military judge’s decision to exclude this evidence

consistent with Mil.R.Evid. 403 and 703.

With respect particularly to the portion of the interview

during which the appellant was under hypnosis, it should be

noted that these portions were not per se inadmissible. See

State v. Nims, 180 Conn. 589, 430 A.2d 1306 (1980); People v.

Blair, 25 Cal.3d 640, 159 Cal. Rptr. 818, 833 fn. 24, 602 P.2d

738, 753 fn. 24 (1979). We find, however, that there was

substantial basis for the military judge’s decision to exclude

this evidence. See State v. Harris, 241 Or. 224, 405 P.2d 492,

499-500 (1965) (video-taped statements of the defendant

while under hypnosis excluded from evidence due to potential

for confusion and because court members would likely be

unable to consider the tapes for purposes other than the truth

of the statements contained therein). Exclusion of this

evidence does not, therefore, constitute an abuse of discre-

tion. See State v. Harris, supra; People v- Modesto, 59 Cal.2d

722, 31 Cal. Rptr. 225, 382 P.2d 33, 382 P.2d 33, 39-40 (1963).

We find similarly as to those portions of the videotapes dur-

ing which the appellant was not under hypnosis.

Admitting evidence tending to show the accused’s con-

sciousness of guilt is an accepted principle of military

jurisprudence. ... However, balancing the probative

value of such evidence against its prejudicial effect is a

task for the trial judge, and unless there is a showing of

abuse, his discretion will not be overturned.

United States v. Borland, 12 M.J. 855, 857 (A.F.C.M.R.

1981). Accord United States v. Woodyard, 16 M.J. 715, 718

(A.F.C.M.R. 1983); United States v. Barus, 16 M.J. 624, 626

(A.F.C.M.R. 1983); see also United States v. Henry, 1 M.J.

538, 5385 (A.F.C.M.R. 1975). We find no such abuse in this

case and we find that the military judge exercised sound

discrection in the procedure he utilized in disposing of this

issue.

23a

VII. PRETRIAL CONFINEMENT SENTENCING

INSTRUCTION

Appellant asserts that the military judge erred by failing to

instruct the court members that, in adjudging an appropriate

sentence, they should consider time spent by the appellant in

pretrial confinement. The Manual for Courts-Martial does

not mandate such an instruction. It does, however, state that

tailored instructions should inform court members that they

“may consider all matters in extenuation and mitigation. . . .”

Paragraph 760(1), MCM, 1969. In United States v. Davidson,

14 M.J. 81, 86 (C.M.A. 1982), it was held that the military

judge must “particularly delineate” factors such as pretrial

confinement in the sentencing instructions to court members.

However, the Davidson case occurred at a time when a con-

victed servicemember’s sentence to confinement was not

automatically credited for time served in pretrial confine-

ment either judicially or administratively. Such is not now the

case. In United States v. Allen, 17 M.J. 126, 128 (C.M.A.

1984), the Court of Military Appeals held that Department of

Defense Instruction 1325.4 “voluntarily incorporat{ed] the

pretrial-sentence credit extended to other Justice Depart-

ment convicts.” This ruling applied “retroactively to cases

under review as to sentences to confinement still being

served.” 17 M.J. at 128. The Department of Defense did not

modify the operative language of its Instruction following

this decision. The Army immediately implemented a policy

requiring that confinement facilities administratively credit

the sentences of prisoners (including those whose cases were

no longer undergoing review) with one day for each day of

pretrial confinement served. Appellant clearly is within the

category of prisoners entitled to such credit.

An instruction which would merely advise the court to con-

sider as a matter in mitigation time spent in pretrial confine-

ment, without also advising the court of the Army’s ad-

ministrative pretrial confinement credit procedure, would be

misleading. The military judge normally should give sentenc-

ing instructions tailored to advise the court of any pretrial

restraint: imposed upon the accused. United States v.

24a

-Davidson, supra. However, he equally is obligated not to

misadvise or mislead the court. Since Allen, supra, the

nature of appropriate pretrial confinement sentencing in-

structions has changed. As stated by Chief Judge Everett:

“{IJn instructing court members, a military judge can

specifically advise them how pretrial confinement is treated

for sentencing purposes.” Jd. at 130 (Everett, C.J., concur-

ring) (emphasis added). Thus, since Allen, a proper sentenc-

ing instruction also should inform the court of the ad-

ministrative credit to be given the accused for time spent in

pretrial confinement? in order to avoid the windfall which

may accrue to the accused due to the actions of a misinformed

court.

Considering the circumstances of this case, we find that the

failure of the military judge to give a tailored pretrial confine-

ment instruction was not plain error and that the issue was

waived by defense counsel’s failure to make a timely objection

to the military judge’s instructions at trial. Assuming,

arguendo, that waiver is inapplicable in this case (although

since Allen, supra, the effect of pretrial confinement on an

accused’s sentence is quite different than it was when the

Court rendered its decision in Davidson, supra), we

nonetheless find beyond a reasonable doubt that in view of

the nature of accused’s crime and the administrative credit to

which he is entitled for pretrial confinement served, any er-

ror which may have resulted from the judge’s failure to give a

tailored pretrial confinement instruction is harmless.

3 While various forms of instructions regarding pretrial confinement will

suffice, an example of an acceptable instruction would be:

In selecting a sentence, you should consider all matters in extenuation

and mitigation (as well as those in aggravation,) (whether introduced

before or after the findings). (All the evidence admitted in this case is

relevant on the subject of sentencing.) Consequently, you should con-

sider evidence admitted as to: .... In determining an appropriate

sentence in this case, you should consider the fact that the accused has

spent _____ days in pretrial confinement. In this connection, you should

consider the fact that if you adjudge confinement at hard labor as part

of your sentence, the _____ days (he) (she) spent in pretrial confinement

will be credited against any sentence to confinement you adjudge. This

credit will be given by the authorities at the correctional facility where

- the accused is sent to serve confinement and will be given on a day-for-

day basis.

25a

VIII. SENTENCE APPROPRIATENESS

We find that considering the entire record the appellant’s

approved sentence is not inappropriate. Accordingly, the

sentence will not be reassessed.

We have considered the other issues personally raised by

appellant and briefed by his counsel and find them to be

without merit.

The findings of guilty and the sentence are affirmed.

, Chief Judge SUTER and Judge COHEN concur.

US GOVERNMENT PRINTING OFFICE. 1987— 194-989/62005