# Petition for Writ of Certiorari — Ross v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1994
- **Citation:** 513 U.S. 1019

## Text

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United States v. Ross, unpublished, ACM 29412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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0641%3A1. Public record. Not legal advice.