Petition for Writ of Certiorari — Ross v. United States

Supreme Court, ts.

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94 687 OCI 17 19%

No.

°* OFFICE OF THE CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1994

PETE ROSS, PETITIONER

UNITED STATES OF AMERICA, RESPONDENI

PETITION FOR A WRIT OF CERTIORARI TO THil

UNITED STATES COURT OF MILITARY APPEALS

JAY LINDSEY COHEN

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel of Record

J. KNIGHT CHAMPION, ITI

Captain, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

AIR FORCE LEGAL SERVICES AGENCY

Appellate Defense Division

172 Luke Avenue, Suite 208

Bolling AFB, DC 20332-5113

OCTOBER 1994

QUESTION PRESENTED

Whether the defense motion for a mistrial should have

been granted, since the military judge improperly allowed

a psychologist to testify about the petitioner’s potential for

future violence.

TABLE OF CONTENTS

Page

I Sie gs wanes cccdensescccccceccess |

ewe eeeesesereeees

Statutory Provision Involved ...................-55- 2

Se i KA dennis novos swe ses 2

SD eee 10

i Se ed ae o's ga wn 48 8 6 8a wo 12

SEP ESET ELLE TERETE la

EPPO Tre te aL Tee ee 2a

TABLE OF AUTHORITIES

SUPREME COURT CASES: Page

Arizona v. Washington, 434 U.S. 497 (1978) ..... 10

Bruton vy. United States, 391 U.S. 123 (1968) ..... 10

Cruz v. New York, 481 U.S. 186 (1987) .......... 10

MILITARY CASES:

United States v. Donley, 33 M.J. 44 (C.M.A.

BR as pa ic de Ce eae 10

United States v. Evans, 27 M.J. 34 (C.M.A.

SU 5 bk eh cae ee aes 10

United States v. Jeanbaptiste, 5 M.J. 374 (C.M.A.

PONE ng oak DORE UN CoWare eRe beara ae y

United States v. Ohrt, 28 M.J. 301 (C.M.A.

SOE Nowak bib ae eed kee Eee eee hae ees 11

United States v. Ross, unpublished, ACM 29412

(A.F.C.M.R. 17 February 1993) .............. 9

United States v. Rushatz, 31 M.J. 450 (C.M.A.

SO cas ec aN POa Rae eek decs beaee ea ranel 10

RULES FOR COURTS-MARTIAL:

rs RE 5 abs eh ee 0s 009 84 Ceo a sen 2, 10

iV

In the Supreme Court of the United States

OCTOBER TERM, 1994

No.

PETE ROSS, PETITIONER

V.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

PETITION FOR WRIT OF CERTIORARI

The petitioner, Pete Ross, respectfully prays that a writ

of certiorari issue to review the order of the United States

Court of Military Appeals entered in his case on 25 July

1994.

OPINIONS BELOW

The order of the United States Court of Military

Appeals, not reported, is located at Appendix A. The deci-

sion of the United States Air Force Court of Military Re-

view, unpublished, ACM 29412, (A.F.C.M.R. 17 February

1993), is located at Appendix B.

JURISDICTION

The final order of the United States Court of Military

Appeals was entered on 25 July 1994. The jurisdiction of

(1)

2

this Court is invoked under 28 U.S.C.A. § 1259(3) (Supp.

1993) and 10 U.S.C.A. § 867(a) (Supp. 1993).

STATUTORY PROVISION INVOLVED

Rule for Courts-martial 915(a) states, in pertinent part,

“The military judge may, as a matter of discretion, declare

a mistrial when such action is manifestly necessary in the

interest of justice because of circumstances arising during

the proceedings which cast substantial doubt upon the

fairness of the proceedings .. .”

The Discussion states, in pertinent part, “The power to

grant a mistrial should be used with great caution, under

urgent circumstances, and for plain and obvious reasons.

As examples, a mistrial may be appropriate when inad-

missible matters so »rejudicial that a curative instruction

would be inadequate are brought to the attention of the

members. . .”

STATEMENT OF THE CASE

The petitioner worked in the pediatrics department at

the Bergstrom Air Force Base Hospital where he met his

wife, Amanda, who was employed there as a medical

assistant and later as a housekeeper. They first went out

together in July 1989 and were married on 27 January

1990. R. 122-23. Mrs. Ross had been married previously

three times and had four children from those marriages,

ranging in age from eight to thirteen. R. 124.

In September 1990, Mrs. Ross testified that her eight

year old son, Ronald Wayne Hyatt, Jr., nicknamed C.J.,

was allowed to play with a miniature dart set that Mrs.

Ross had given the petitioner. C.J. was supposed to play

with it in the garage, and was required to put it away when

he was finished. That evening after the children had gone

to bed, the petitioner went to the garage and found one of

3

the darts on the floor. The petitioner went to C.J.’s room

and stuck him with the dart in the leg because he left it out

in the garage. Mrs. Ross heard C.J. whimper and cry out.

R. 125. Mrs. Ross described the mark on C.J.’s leg from

the dart as a “pin prick” enough to break the skin and

cause it to bleed a little. R. 126. C.J. testified essentially

the same. R. 293-99.

Sometime shortly after the dart incident, the petitioner

moved out of the house he previously occupied with Mrs.

Ross and her children. While at a friend’s house, Mrs.

Ross saw the petitioner’s car drive down to the house

where she and her children still resided. When she returned

to the house, she smelled a burning odor and found moth

balls crushed up in the master bedroom, behind the re-

frigerator, near an antique icebox in the living room, and

behind the children’s bathroom toilet. She testified she saw

a container of cleaning fluid that contained ammonia on

the living room desk and believed this had been poured on

the moth balls to cause the odor. R. 127-29. She opened

the windows, vacuumed the house, and was able to stay in

the house that evening. R. 130. The house was co-owned

by the petitioner and Mrs. Ross and was located about 14

miles off the base. R. 163. Christopher Brown testified he

was a friend of the petitioner’s, and that, when confronted

about the seriousness of the fumes, he said he didn’t know

pouring ammonia on moth balls made a poisonous gas.

R. 301.

A week prior to 30 December 1990, Mrs. Ross had

moved out of the petitioner’s house to an apartment. She

was contemplating divorce, despite some hope for the

marriage that had developed during counseling she and the

petitioner had attended. R. 131. On 30 December 1990,

Mrs. Ross found a note on her apartment door from the

petitioner that said, “Mandy, I need to talk to you ASAP,

please.” R. 132. Mrs. Ross testified she was worried the

4

petitioner might try to commit suicide. R. 133. Mrs. Ross

went to work that day at the hospital. At about eight

o’clock in the evening, the petitioner came to the hospital

and wanted her to go with him to watch a tape. Mrs. Ross

told him she wouldn’t, and told him she wanted a divorce.

The petitioner became upset, tearing up some pictures of

the two of them, and giving Mrs. Ross back his wedding

band. R. 134-35.

After ten o’clock when Mrs. Ross got off work, she got

in her van to go home. As she drove off base, the peti-

tioner came from the back of the van carrying a knife. She

testified the petitioner held the knife to her side and told

her they were going to the house to see the videotape. She

refused to go. R. 137. She testified he said he would kill

her if she didn’t go. She cut her left thumb on the blade of

the knife. As they struggled, the petitioner pulled the scarf

around her throat and tried to stab her in the throat with

the knife. Mrs. Ross fought him off, catching the knife on

the middle finger of her right hand. R. 139. They con-

tinued to struggle, and the petitioner stabbed Mrs. Ross in

the right thigh. R. 140. The struggle continued, and even-

tually the petition brought the car to a stop and got out of

the car on the driver’s side. Mrs. Ross testified the peti-

tioner doubled her scarf around her neck and pulled on it

to the point of her passing out. R. 142. When she regained

consciousness, the petitioner had her drive to his house. R.

143. Mrs. Ross’ van lost a wheel cover and sustained dam-

age to the bumper. She didn’t know how this happened. R.

155. Special Agent Wales testified about an old blue Pon-

tiac vehicle parked off base on Cardinal Loop between an

elementary school and a high school. He found evidence at

this spot that led him to believe Mrs. Ross’ van had hit the

Pontiac, but it could have been in such a way that she

didn’t realize she struck the Pontiac. R. 373-74.

|

5

When Mrs. Ross and the petitioner arrived at his house,

he supported her and walked her into the house and took

her to a chair at the kitchen table. R. 156. The video tape

the petitioner wanted Mrs. Ross to watch was about adult

children of alcoholics. R. 185. The petitioner cried as he

and Mrs. Ross watched the video. She comforted him, and

he kissed her. After watching the video, the petitioner ban-

daged her leg. R. 157.

Mrs. Ross convinced the petitioner to go to a psychiatric

hospital where he had previously received counseling.

While there, she informed a nurse that she needed help.

The police came and arrested the petitioner, and Mrs.

Ross was taken to a medical hospital. R. 158.

With regard to the other charges, Ms. Rita Cedillo, the

petitioner’s former girlfriend, testified she was currently

employed and had been employed at the Bergstrom AFB

Hospital for two and a half years. R. 212. She met the

petitioner shortly after she began working there. R. 213.

She and the petitioner had sexual intercourse several

times. R. 224. Ms. Cedillo had seven children from two

prior marriages. R. 214.

Ms. Cedillo testified she had her tubes tied on 26 May

1988. However, there were times when she felt nauseated,

and she and the petitioner thought she might be pregnant.

R. 229-30. Ms. Cedillo testified that in June 1989, the peti-

tioner pulled up behind her in his truck while she was go-

ing to the grocery store, pushing her to the side of the

road. R. 214-16. This occurred in the morning before

lunch time. R. 238-39. The petitioner reached in through

her open window and grabbed her keys from her car. R.

217. Even though she was scared, she never thought to roll

up her window from the time she first saw the petitioner to

the time he reached in and grabbed her keys. R. 241. The

petitioner asked to talk to her for five minutes, and Ms.

Cedillo got out of her car while the petitioner parked her

6

car. She got into the petitioner’s car, and he drove for

about 30 minutes to the petitioner’s trailer house. During

the trip, Ms. Cedillo told the petitioner two times that she

wanted to go back to her car. R. 220-22.

When they arrived at the trailer, the petitioner locked

the door by twisting the door knob. R. 234. She didn’t

remember there being a chain or a dead bolt. R. 235. They

both sat on the couch and talked about their relationship.

R. 225. She tried to call the police on the telephone, but

the line was dead. Ms. Cedillo tried to go forward for the

door, but the petitioner put his feet between hers, and she

fell over and hit the back of her head. R. 226. While Ms.

Cedillo was still on the floor, the petitioner walked all the

way into the back bedroom and got a metal coat hanger.

R. 226. Ms. Cedillo didn’t black out when she fell. R. 246.

The petitioner could not see Ms. Cedillo when he was in

the bedroom. R. 246. He stretched the hanger out length-

wise with the hook remaining on one end. R. 228. He then

held the hook end of the coat hanger in the flames of the

gas stove in the trailer’s kitchen for about five minutes. It

became red from the heat. R. 227-28.

The petitioner put the hanger on the floor where he

kneeled on top of her. R. 249. He then unbuttoned and

pulled down her pants, with Ms. Cedillo fighting him. The

petitioner told Ms. Cedillo he was going to give her an

abortion, and he put about an inch and three quarters (the

portion of the hook from the hook to the tail end of the

hook) of the hanger in her vagina and moved it around for

five or ten minutes. At first the hanger felt warm to Ms.

Cedillo. R. 228-29. The petitioner put the entire hook in-

side her vagina. R. 249. She was struggling when the

hanger was inside of her, that she kept trying to push the

petitioner away, and that she kept trying to close her legs.

R. 264. She kept still when he had the hanger inside of her.

7

When the petitioner removed the hanger hook from her

vagina, he unzipped his pants, took his penis in his hands,

and ejaculated on her stomach. He went to the bathroom

to clean himself off and came back and threw a towel at

Ms. Cedillo. The petitioner then took her back to her car.

R. 230-31.

The petitioner was convicted of kidnapping and aggra-

vated assault of his wife, the assault of his young stepson,

disorderly conduct, and the kidnapping and assault of his

girlfriend, in violation of Articles 128 and 134 of the Uni-

form Code of Military Justice (U.C.M.J.).

During sentencing, Dr. Larson, the Chief of Mental

Health at Bergstrom Air Force Base, was called during an

Article 39(a) session by the government because of the

defense’s objection to his testimony on the petitioner’s

potential for future violence. He was qualified as an expert

in clinical psychology. R. 534-35. He testified he had seen

the petitioner on a number of occasions, administered

standardized tests to him, and diagnosed him as having a

dependent personality, being aggressive, and being nar-

cissistic. R. 535-36. Dr. Larson had only spent a total of

three hours with the petitioner. R. 545.

During the Article 39(a), the following ensued:

TC: Being made aware of the charges and the find-

ings of this court-martial, with respect to those

charges, do you have an opinion as to the ac-

cused’s future potential for violence?

A: Given that he has not had any therapy or very

limited therapy, I would say that the potential

is very high. There seems to be a gradual build

up.

R. 537 (emphasis added).

On cross examination, the following took place:

Q: What is your opinion as to Sergeant Ross’

future potential for violence based on?

8

A: I think if we look at the incidences, there seems

to be a gradual increase in the violence. And,

in the absence of therapy, there’s no way to

counteract that, and the potential, therefore,

increases. The best projecture of future be-

havior is past. To change his behavior, there

must be some intervention.

R. 539-40.

The doctor also stated he based his prediction as to

future violen e on the offenses of which the petitioner was

convicted. R. 540. Dr. Larson did not have outside infor-

mation, he had not talked to any of the petitioner’s super-

visors, he had not observed the petitioner performing his

dutires, and he had never read the petitioner’s military

record in making his prediction. R. 540. The military

judge improperly considered the opinion as rehabilitation

potential evidence. R. 546.

During his testimony in front of the members, Dr. Lar-

son testified he diagnosed the petitioner as having a border

line personality, which included frequent suicide attempts

or gestures and emotional relationships with high degrees

of anxiety, depression, and angry outbursts. He also testi-

fied the petitioner had very volatile, intense relationships,

questions about identity, extreme fear of abandonment,

and self-defeating behaviors. R. 553. He also referred to a

diagnosis in 1989 of passive aggressive personality dis-

order, narcissistic personality disorder, and dependent

personality disorder. He defined passive aggressive per-

sonality as exhibiting a volatile temper and rebelliousness.

He defined narcissistic traits as being very self-centered,

following one’s own set of rules, and allowing a mere

desire to justify such behaviors. R. 554. In front of the

court members, the trial counsel again asked the doctor if

he had an opinion as to the petitioner’s future potential for

9

violence. Dr. Larson responded, “I think the potential is

very high for violence.” R. 554.

After Ms. Cedillo and Mrs. Ross had testified for the

government, and after the petitioner had presented his un-

sworn statement, the military judge held an Article 39(a)

session, stating that Dr. Larson’s testimony caught him by

surprise. R. 562. In an attempt to cure this extremely prej-

udicial error, the military judge instructed the members as

follows:

. . . | want you to disregard the testimony of Dr. Lar-

son. Basically, it isn’t helpful. And, his testimony

really isn’t relevant, and it shouldn’t have been ad-

mitted. Basically, he testified that in his opinion the

accused has violent tendencies. Well, he based that on

the charges. You have as much before you as he had

before him in making that determination. So, it’s not

a matter of expert opinion. So, I want you to just dis-

regard his testimony. Can each of you do that? Affir-

mative nod from each of the members.

R. 569-70.

The military judge denied the defense counsel’s motion

for a mistrial. The petitioner was sentenced to 20 years

confinement, a dishonorable discharge, total forfeitures,

and reduction to E-1.

The United States Air Force Court of Military Review

held that the testimony should have been excluded, but

that a mistrial was a drastic remedy, since the curative in-

struction was sufficient to purge any prejudice to the peti-

tioner. Accordingly, they affirmed the conviction. United

States v. Ross, unpublished, ACM 29412, (A.F.C.M.R. 17

February 1993). (Appendix B).

The United States Court of Military Appeals granted

review of the issue, but did not issue an opinion. In its

Order, dated 25 July 1994, the Court said that “assuming

10

arguendo that the military judge correctly decided that the

testimony should not have been admitted, we are satisfied

that the instructions of the military judge to disregard the

testimony of Dr. Larson were sufficient to cure any harm

from that evidence.” (Appendix A).

REASON FOR GRANTING THE WRIT

Generally, a mistrial is appropriate when circumstances

arising during a proceeding cast substantial doubt on the

fairness of those proceedings. R.C.M. 915(a); United

States v. Jeanbaptiste, 5 M.J. 374 (C.M.A.' 1978). Often, a

limiting instruction is adequate to remedy an inadvertent

exposure of the jury to impermissible information, but

there are circumstances where, “. . . the risk that the jury

will not, or cannot, follow instructions is so great, and the

consequences of failure so vital to the defendant, that the

practical human limitations of the jury system cannot be

ignored.” Bruton v. United States, 391 U.S. 123 (1968);

see generally, Cruz v. New York, 481 U.S. 186 (1987);

United States v. Evans, 27 M.J. 34 (C.M.A. 1988). The

law recognizes the human limitations of jurors to limit

their consideration of inadmissible evidence to which they

have been inadvertently exposed and, in some circum-

stances, a court may declare a mistrial even over a defense

counsel’s objection. United States v. Donley, 33 M.J. 44

(C.M.A. 1991); Arizona v. Washington, 434 U.S. 497, 506

n.18 (1978). )

Although the decision to grant a mistrial rests within the

trial judge’s discretion, an appellate court can reverse this

determination when there is clear evidence of abuse of dis-

cretion. United States v. Rushatz, 31 M.J. 450 (C.M.A.

1990). In the case sub judice, there was clearly an abuse of

discretion. The court members’ exposure to Dr. Larson’s

inflammatory testimony in the petitioner’s case was hardly

1]

inadvertent. The military judge specially allowed it after

hearing the harmful testimony in an Article 39(a) session.

Trial defense counsel vigorously objected to Dr. Larson’s

testimony during the Article 39(a) session. R. 545-548. He

specifically objected that rehabilitation potential did not

include predictions about future violence. R. 546. Defense

counsel argued that the government didn’t lay a proper

foundation for Dr. Larson to testify about rehabilitation

potential. He did nothing more than base his opinion on

the past behavior of appellant. Such testimony is pro-

hibited. United States v. Ohrt, 28 M.J. 301 (C.M.A.

1989). The military judge’s statement that Dr. Larson’s

testimony took him by surprise and that he allowed it be-

cause the defense counsel didn’t object is simply not sup-

ported by the record.

In the instant case, the petitioner urges that the circum-

stances were such that the military judge should have

granted the defense motion for a mistrial. Fhe cautionary

instruction was simply not enough, and it again empha-

sized the doctor’s comments about the petitioner’s poten-

tial for future violence. The defense went to great pains to

prevent this highly inflammatory testimony from coming

before the members by requesting an Article 39(a) session,

only to be overruled by the military judge. Notwithstand-

ing the military judge’s attempts to rehabilitate the

members, it is unreasonable to believe that, as human be-

ings, the court could totally put out of mind this testimony

of the petitioner’s propensity for future violence. Indeed,

the petitioner asserts this prejudice was reflected in the

lengthy confinement he received.

12

CONCLUSION

A clear understanding of what constitutes an abuse of

discretion is crucial in determining when justice requires

that a mistrial be granted. Resolution of this case will have

wide applicability throughout both military and civilian

courts.

Respectfully submitted,

JAY LINDSEY COHEN

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel of Record

J. KNIGHT CHAMPION, III

Captain, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

AIR FORCE LEGAL SERVICES AGENCY

Appellate Defense Division

172 Luke Avenue, Suite 208

Bolling AFB, DC 20332-5113

OCTOBER 1994

APPENDICES

APPENDIX A

UNITED STATES COURT OF MILITARY APPEALS

USCMA Dkt. No. 93-0808/AF

CMR Dkt. No. 29412

UNITED STATES, APPELLEE

V.

PETE Ross (449-96-4712), APPELLANT

ORDER

On further consideration of the granted issue (38 MJ

438), and assuming arguendo that the military judge cor-

rectly decided that the testimony should not have been ad-

mitted, we are satisfied that the instructions of the military

judge to disregard the testimony of Dr. Larson were suffi-

cient to cure any harm from that evidence. See United

States v. Garces, 32 MJ 345, 349 (CMA 1991), citing Ten-

nessee v. Street, 471 U.S. 409, 415, 105 S.Ct. 2078, 2082,

85 L.Ed.2d 425 (1985). Accordingly, it is, by the Court,

this 25th day of July, 1994

ORDERED:

That the decision of the United States Air Force Court

of Military Review is affirmed.

For the Court,

/s/ John A. Cutts, III

‘ Deputy Clerk of the Court

cc: The Judge Advocate General of the Air Force

Appellate Defense Counsel (MOUL)

Appellate Government Counsel (PETERSON)

(la)

2a

APPENDIX B

UNITED STATES AIR FORCE

COURT OF MILITARY REVIEW

ACM 29412

UNITED STATES

Vv.

TECHNICAL SERGEANT PETE Ross, FR449-96-4712

UNITED STATES AIR FORCE

17 February 1993

Sentence adjudged 19 April 1991 by GCM con-

vened at Bergstrom Air Force Base, Texas.

Military Judge: Wade B. Morrison.

Approved sentence: Dishonorable discharge,

confinement for 20 years, forfeiture of all pay

and allowances, and reduction to E-1.

Appellate Counsel for the Appellant: Colonel

Jeffrey R. Owens, Major Mary C. Yastishock,

and Captain Ursula P. Moul.

Appellate Counsel for the United States: Lieu-

tenant Colonel Brenda J. Hollis, Major Paul H.

Blackwell, Jr., Major Jeffrey C. Lindquist, and

Captain David C. Wesley.

Before

O’HAIR, SNYDER, and GRUNICK

Appellate Military Judges

3a

OPINION OF THE COURT

GRUNICK, Judge:

Contrary to his pleas, appellant was convicted by

general court-martial, which included enlisted members,

of the kidnapping and aggravated assault of his wife, the

assault of his young stepson, disorderly conduct, and the

kidnapping and assault of his girlfriend over a year before

the primary charge, in violation of Articles 128 and 134,

UCMSJ. The sentence approved by the convening authority

included a dishonorable discharge, confinement for 20

years, total forfeitures, and reduction to E-1. While we

find no prejudicial error and affirm, a discussion of some

of the 10 assigned errors is appropriate.

SEVERANCE

Appellant asserts the military judge erroneously denied

his motion to sever the charges and group them into three

separate trials: 1) the kidnapping and aggravated assault

of his spouse, 2) the additional charges involving dis-

orderly conduct and assault of his stepson, and 3) the sec-

ond additional charge involving the kidnapping and aggra-

vated assault of his girlfriend.

R.C.M. 307(c)(4) provides: “Charges and specifications

alleging all known offenses by an accused may be pre-

ferred at the same time.” R.C.M. 601(e)(2) provides: “In

the discretion of the convening authority, two or more of-

fenses against an accused may be referred to the same

court-martial for trial, whether serious or minor offenses

or both, regardless whether related.” R.C.M. 906(b)(10)

recognizes the authority of the military judge to sever

charges and specifications “to prevent manifest injustice.”

Appellant complains the assault and kidnapping charges

involving his wife spilled over and prejudiced his defense

4a

to the assault and kidnapping charges involving his girl-

friend. In light of the factual presentation in this case, in-

cluding the live testimony of each of the victims, we be-

lieve it was possible for a rational fact finder to separate

the evidence of the incidents. The presentation by the Gov-

ernment in its case-in-chief separated the events with

direct, strong, and distinct evidence. There was no cross-

examination of appellant, nor was there any rebuttal evi-

dence that would tend to merge the incidents.

Although the charges involving appellant’s wife and

girlfriend were both alleged as violations of Articles 128

and 134, UCMJ, the surrounding circumstances of these

two events were factually dissimilar and 18 months apart.

Because the evidence for both incidents was direct, strong,

and distinct, we find proof of one did not spill over and

prove the other. United States v. Haye, 29 M.J. 213

(C.M.A. 1989). Appellant’s kidnapping of his wife was ac-

complished with violence when he hid in the back of her

mini-van, came out of hiding, and slashed at her with a

knife as she was driving. Appellant stabbed his wife in the

leg, threatened to kill her, and forced her to drive to his

home.

The kidnapping and assault incident involving ap-

pellant’s girlfriend occurred 18 months before the incident

with his wife. It remained unreported to authorities until

the latter stages of the more recent kidnapping investiga-

tion. Appellant stopped his girlfriend as she drove home

and persuaded her to go for a short ride with him. He took

her to his trailer and held her, against her will, for a

number of hours. Since they had been for some time in the

process of dissolving their relationship, appellant became

angry when they were unable to reconcile. Appellant

knocked his girlfriend to the floor and held her down

while inserted a straightened coat hanger into her vagina.

Sa

The girlfriend testified appellant stated he believed she was

pregnant and was attempting to abort the baby.

Judge Cox in the Haye decision, supra, at 215, stated;

“One test that might be used in judging the possibility of

spill over is to determine whether the evidence present as

to one charge would be independently admissible to prove

the other.” The only common thread between appellant’s

final confrontations with his wife and girlfriend was his

motive to get their attention and possible sympathy for a

continued relationship. Although the connection between

the two incidents was not made in this case, had the

charges been severed, we find the proof of one would have

been admissible to prove the other in the area of motive or

intent. Mil. R. Evid. 401, 402, 404(b).

Although the military judge did not instruct the court

members to keep the evidence of the two offenses separate

during their deliberations, the direct, strong, and distinct

evidence, presented in support of both incidents, mini-

mized the improper cumulative impact. Appellant’s trial

defense counsel failed to request special instructions or

special findings on this issue. In the absence of plain error,

we find this to be waived. United States v. Williams, 28

M.J. 484 (C.M.A. 1989). Assuming, arguendo, the mili-

tary judge was in error, his error was not “obvious and

substantial,” nor did it have “unfair prejudicial impact on

the jury’s deliberation.” United States v. Fisher, 21 M.J.

327 (C.M.A. 1986), citing United States v. Young, 105 S.

Ct. 1047, n.14 (1985). We uphold the military judge’s deci-

sion not to sever the charges and find that it was not an

abuse of discretion. See United States v. Curry, 31 M.J.

359 (C.M.A. 1990); Haye, supra, at 215; United States v.

Hogan, 20 M.J. 71 (C.M.A. 1985); United States v. Kirks,

34 M.J. 646 (A.C.M.R. 1992); United States v. Silvis, 31

M.J. 707 (N.M.C.M.R. 1990).

6a

POTENTIAL FOR VIOLENCE OPINION

During sentencing, the prosecution presented an expert

clinical psychologist, Major Larson. After laying the ap-

propriate foundation for his expertise and having him set

out the counseling and testing her performed on appellant,

trial counsel asked Major Larson the following questions:

Q. Based on the knowledge of the findings of this

court, together with the results of the various

tests that you had administered, together with

the various sessions that you had with Sergeant

Ross in the month of October 1990—

¥es.

—do you have an opinion as to the accused’s

future potential for violence?

I think the potential is very high for violence.

What situations would likely trigger future

violence?

Because of the tendency to get overly involved

rather quickly in a relationship. If an indivi-

dual decided they no longer wanted to date the

individual after two, or three dates, or some-

thing, that would trigger a violent reaction.

Y F&F

The trial defense counsel did not cross examine Dr. Lar-

son, having previously objected to this testimony at an Ar-

ticle 39a session. Two additional government sentencing

witnesses and appellant’s unsworn statement followed this

testimony. In an Article 39a session after the defense

rested, trialefense counsel requested a mistrial. The mili-

tary judge denied the motion for a mistrial and gave the

following curative instruction to the court members:

MJ: Let me tell the members of the court before we

begin with arguments. I want you to disregard

the testimony of Dr. Larson. Basically, it isn’t

Ta

helpful. And, his testimony isn’t relevant, and

it shouldn’t have been admitted. Basically, he

testified that in his opinion the accused has

violent tendencies. Well, he based that on the

charges. You have as much before you as he

had before him in making that determination.

So, it’s not a matter of expert opinion. So, |

want you to just disregard his testimony. Can

each of you do that? Affirmative nod from

each of the members.

Two possibilities exist for the admission of “potential

for violence” testimony: R.C.M. 1001(b)(4) (aggravation)

and (5) (rehabilitation). Initially, the military judge found

Major Larson’s testimony was relevant in the area of re-

habilitation potential. We have rejected both theories for

the admissibility of this kind of “future dangerous” testi-

mony. United States v. Williams, 35 M.J. 812

(A.F.C.M.R. 1992). It should have been excluded.

We must now determine whether this error resulted in

any prejudice to appellant. The declaration of a mistrial is

a drastic remedy that should not be invoked unless the pre-

ferred alternative of giving curative instructions to the

members if found manifestly inadequate. United States v.

Evans, 27 M.J. 34 (C.M.A. 1988), cert. denied, 488 U.S.

1011, 109 S. Ct. 797, 102 L. Ed. 2d 788 (1989). Absent evi-

dence to the contrary, a jury is presumed to have complied

with the judge’s instructions. See Lakeside v. Oregon, 435

U.S. 333, 98 S. Ct. 1091, 55 L. Ed. 2d 319 (1978); United

States vy. Ricketts, 1 M.J. 78 (C.M.A. 1975). We find the

military judge did not abuse his discretion by denying

defense’s request for a mistrial. We find the military

judge’s strong curative instruction was sufficient to purge

any prejudice to appellant. United States v. Rushatz, 31

M.J. 450 (C.M.A. 1990); United States v. Morris, 13 M.5.

297 (C.M.A. 1982); R.C.M. 915.

8a

CONCLUSIONS

Appellant in three assigned errors, asserts the evidence

against him was insufficient to support the findings of

guilty. In evaluating this record of trial, we must deter-

mine not only the legal sufficiency of the evidence but also

its factual sufficiency. On the basis of the entire record, we

are satisfied that the evidence is legally sufficient to estab-

lish appellant’s guilt. Jackson v. Virginia, 443 U.S. 307, 99

S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Further, having

weighed the evidence in the record of trial, and allowing

for not having personally observed the witnesses, we are

convinced beyond a reasonable doubt as to appellant’s

guilt. United States v. Turner, 25 M.J. 324 (C.M.A. 1987);

Article 66(c), UCMJ.

The maximum sentence authorized in this case was a

dishonorable discharge, confinement for life, total for-

feitures, and reduction to E-1. Appellant complains the

sentence he received as inappropriately severe. The

sentence adjudged at trial was a dishonorable discharge,

confinement for 20 years, total forfeitures, and reduction

to’ E-1. Appellant slashed and stabbed his wife with a

knife, brutally attacked his girlfriend with a coat hanger,

kidnapped both women, and assaulted his minor stepson.

In its context, we do not find the sentence unreasonably

severe. United States v. Healy, 26 M.J. 394 (C.M.A.

1988).

~We have examined the remaining assigned errors and

find they lack merit. The findings and sentence are correct

in law and fact, the sentence is appropriate, and no error

prejudicial to the substantial rights of appellant was com-

mitted. Article 66(c), UCMJ. Accordingly, the findings of

guilty and sentence are

AFFIRMED.

9a

Senior Judge O’Hair and Judge SNYDER concur.

[Seal Omitted]

OFFICIAL

/s/ Naomi D. Allen

NAomI D. ALLEN

TSgt, USAF

Chief Court Administrator, AFCMR