Opposition Brief — Burks v. United States

9a

at 300. Yet, they had been excluded from evidence be-

cause of mechanical application of the rules of evidence.

The residual hearsay exceptions are a giant step to-

ward resolving that injustice within the evidence code.

See also Mil.R.Evid. 102 (“These rules shall be con-

Strued to secure fairness in administration, elimination of

unjustifiable expense and delay, and promotion of growth

and development of the law of evidence to the end that

the truth may be ascertained and proceedings justly

determined.”). In any event, nothing in Chambers sup-

ports the proposition that a defendant, who otherwise is

permitted to present his defense, is denied constitutional

due process of law because certain evidence—the funda-

mental trustworthiness of which is wholly unestablished

by the defendant—is excluded from the trial. See United

States v. Hinkson, 632 F.2d 382, 386 (4th Cir. 1980).

II

WHETHER THE MILITARY JUDGE ERRED

TO THE SUBSTANTIAL PREJUDICE OF

APPELLANT BY ADMITTING INTO EVI-

DENCE CERTAIN SCIENTIFIC EVIDENCE

NOT ACCEPTED AS CONCLUSIVE IN

THE SCIENTIFIC COMMUNITY.

A

Before trial on the merits began, trial counsel advised

the military judge that he intended to question Agent

McGibbon regarding a “presumptive-positive” luminol

test for blood in passenger areas of appellant’s car. That

test was run in the course of a consent search of the car

during the period of appellant's interrogation. Defense

counsel pointed out that subsequent tests did not show

positive in these areas but showed positive only on car-

peting in the car’s trunk. Assistant trial counsel re-

10a

sponded that these subsequent tests were “less sensitive”

than luminol (that is, required more blood to be pres-

ent in order to show positive) but “more accurate” than

luminol (that is, would not show positive for some chem-

ical substances similar to blood that would show positive

in the luminol test).

The prosecutor explained that he wanted to elicit tes-

timony about the luminol test merely to show the progress

of the OSI investigation and to explain, in part, why that

investigation had focused on appellant. He went on to

suggest limiting instructions as to this purpose. Then, in

response to defense objection, he further argued that any

possible prejudice to appellant would be overcome by

other evidence showing the results of the subsequent tests.

In due course, the military judge overruled appellant’s

objection. He remarked: “I don’t see the information as

being particularly prejudicial. It has some probative

value, and the individual [Agent McGibbon] . . . [could]

explain the limited usage of the test. That information

will be of some assistance to the court in deciding the

case.” See Mil.R.Evid. 403. He reminded trial counsel

of his offer to provide appropriate limiting instructions.

During trial, Agent McGibbon testified as anticipated.

He explained that he had tested certain parts of appel-

tant’s car for blood. First, he used phenolphthalein, which

tested negative; then he used luminol, which showed a

presumptive positive in certain areas. As a result of that

presumptive positive, he “asked the local sheriff's depart-

ment to conduct further testing. . . . He testified that

luminol is only a presumptive test” that required “further

confirmatory testing.” Further, he indicated that the pre-

sumptive positive was not necessarily “caused by blood,

much less by human blood.” Answer to Final Brief at

9-10.

After Agent McGibbon had finished, the military judge

instructed the members as follows: )

- |

a

lla

Members, when Mr. McGibbon testified, he talked

about luminol testing. Since the luminol testing is

essentially a screening test, you may not consider

the testimony as to the luminol testing as confirm-

ing the results indicated. The evidence as to the

luminol testing was presented for the limited pur-

poses of showing the OSI’s continuing efforts and

why the accused continued to be a suspect and not

to confirm the presence of blood in the accused’s

vehicle. Any questions? Apparently not.

Thereafter, Mr. Gregonis, a forensic serologist in the

crime laboratory of the local sheriff's department, testi-

fied. He stated that his later testing of appellant’s car for

blood “was negative except for a weak positive on an

area of”’ the trunk’s carpet. Answer at 10.

B

Although evidence about why an investigator focused

on a particular target usually will be irrelevant, see United

States v. Poole, 30 MJ 271, 275-76 (CMA 1990), ap-

pellant’s trial strategy changed that in this case. Ap-

pellant’s explanation for his confessions to OSI agents

was that the police had brow-beaten him into making

them, and Agent McGibbon’s testimony offered an ex-

planation about why, in part, the agents continued to

pursue appellant as a suspect.

Cf course, that probative value might still, in a given

case, be substantially outweighed by the danger of un-

fair prejudice. Mil.R.Evid. 403. Here, though, the mili-

tary judge assured that would not be the case. Not only

did he offer clear and accurate instructions to the mem-

bers that properly limited their consideration of the

luminol test, but he was assured by the prosecutor that

later testimony would show that the presumptive-positive

luminol test in the passenger compartment was not con-

firmed in subsequent testing. This combination of limit-

ing instructions and Mr. Gregonis’ testimony virtually

2a

assured that appellant would not be unfairly prejudiced

by Agent McGibbon’s testimony.°

Ill

WHETHER THE MILITARY JUDGE ERRED

TO THE SUBSTANTIAL PREJUDICE OF

APPELLANT BY THE ADMISSION OF

CERTAIN PHOTOGRAPHS OF THE VIC-

TIM AND THE CRIME SCENE WHICH

WERE UNFAIRLY PREJUDICIAL AND

CUMULATIVE OF OTHER PROPERLY

ADMITTED PHOTOGRAPHS.

During trial, the defense objected to eighteen photo-

graphs of the victim and crime scene and a videotape of

the crime scene offered by the prosecution. Partially

overruling the objection, the military judge admitted ten

of the photographs, excluding the remaining photos as

well as the videotape. Of the ten, four were of the vic-

tim: One was a color photo taken at the murder scene,

and the other three were black-and-whites from the

autopsy.

3 Notwithstanding the limiting instruction, trial counsel remarked

during his closing argument to the members:

And then he says that it was—in the front it was the other

guys who did it, that he was away a little bit but it was the

other guy standing over the victim and beating him, that the

other guy got soaked with blood. These other guys went out

and got in the back of his car without changing their clothes,

and there’s no blood found in the back of his car, that is, in

the rear passenger section. The only blood found which led

them on was in the front.

(Emphasis added.) Although this comment strayed from the per-

missible limits of the evidence just discussed, defense counsel did

not object to the argument and so waived his appellate complaint.

See RCM 919(c), Manual, supra. In the context of this case and

considering all the other evidence, including appellant’s confes-

sions, this isolated remark was not plain error that this Court

will notice even in the absence of objection. See United States v.

Fisher, 21 MJ 327 (CMA 1986).

13a

pictures but argues that they necessarily and appropri-

ately reflect the violent nature of the attack on Handy.

The Government points out, as it did at trial, that it had

elected not to offer more graphic autopsy pictures out of

a similar concern as appellant’s.

Appellant is correct “that Photographs are not ad-

missible for the illegitimate purpose of inflaming or

shocking the court-martial.” Id. at 88. See Mil.R.Evid.

403. He must remember, however, that, “‘[i]f ‘the item

of proof is admissible for a legitimate purpose, the fact

that it also may possibly tend in this undesirable direc-

tion is, in and of itself, no ground for reversal.’ United

States v. Bartholomew, 1 USCMA 307, 314, 3 CMR 41,

48 (1952).” 23 MJ at 88.

Our review of the Photographs in the context of their

use at trial during testimony of prosecution witnesses

persuades us that the military judge correctly ruled that

the “probative value” of the photographs “far out-

weigh[ed] the danger of unfair prejudice” to appellant.

As we concluded in United States v. White, supra at 88:

[T]he photographs were introduced for a legitimate

purpose and aided the factfinding process by mak-

eee testimony easier to understand. Of course,

“[a person who has been brutally murdered by a

vicious beating to his head] is not a pretty picture[.]”

Here, however, the probative value of the evidence

far outweighed any danger of unfair prejudice. Ac-

cordingly, we find no abuse of discretion by the

military judge in admitting the photographs.

(Citation omitted. )

l4a

IV

WHETHER THE COURT OF MILITARY

REVIEW ERRED TO THE SUBSTANTIAL

PREJUDICE OF APPELLANT IN HOLD-

ING THAT CHARGE I, MURDER BY

STRIKING WITH A BASEBALL BAT, AND

CHARGE II, ASSAULT BY STRIKING

WITH A BASEBALL BAT, WERE NOT

MULTIPLICIOUS FOR SENTENCING.

The military judge appropriately submitted to the mem-

bers the issue as to how these events had unfolded. He

instructed them that, if they found appellant had gone to

see the victim with the specific intent to kill him, the

two charges would be multiplicious for findings; in that

event, they should find appellant not guilty of Charge II,

the assault. However, if they believed what appellant

had stated in his confessions—that he went to Handy’s

workplace only to beat a lesson into him and then, after

escorting him to the bathroom to help him clean up the

blood, had changed his mind and decided to kill him by

another, fatal beating—the charges would not be multi-

plicious.

By their separate findings of guilty to both charges,

the members have indicated their factual conclusion of

appellant’s intent. Now he complains, however, that they

should be treated as multiplicious for sentencing.

At the outset, it must be noted that appellant did not

raise sentence multiplicity as an issue at trial. Moreover,

given the implicit finding of fact discussed above, ap-

pellant’s crimes were not offenses arising from a single

impulse or insistent flow of events with like object or

intent of the sort that this Court has sometimes treated

as multiplicious for sentencing, see United States v.

Bur-ey, 21 USCMA 71, 74-75, 44 CMR 125, 128-29

(1 °1); rather, they were two distinct criminal acts. Cf.

l5a

United States y. Traeder,

1991). Accordingly,

trary is without merit.

32 MJ 455, 456-57 (CMA

appellant’s argument to the con-

DECISION

The decision of the United States Air Force Court of

Military Review is affirmed.

Chief Judge SULLIVAN and Judges COX. CRAW-

FORD, and GIERKE concur.

16a

APPENDIX B

UNITED STATES AIR FORCE COURT OF

MILITARY REVIEW

ACM 28760

26 August 1991

UNITED STATES

Vv.

MASTER SERGEANT DONALD R. BURKS, JR.,

FR438-84-1604

UNITED STATES AIR FORCE

Sentence adjudged 16 April 1990 by GCM convened

at George Air Force Base, California. Military Judge:

Michael B. McShane.

Approved sentence: Dishonorable discharge, confine-

ment for life, and reduction to E-1.

Appellate Counsel for the Appellant: Mr. William

Holmes (argued), Lieutenant Colonel Jeffrey R. Owens,

Major Ronald G. Morgan, and Major Ronald A. Gre-

gory.

Appellate Counsel for the United States: Major

Morris D. Davis (argued), Colonel William R. Dugan,

Jr., Lieutenant Colonel Brenda J. Hollis, and Major Paul

H. Blackwell, Jr.

17a

Before

O’HAIR, MURDOCK, and RIVES

Appellate Military Judges

OPINION OF THE COURT

O’HAIR, Senior Judge:

A general court-martial composed of officers found

appellant guilty of the unpremeditated murder of Sgt

Handy and of assaulting the same Sgt Handy with the

intent to inflict grievous bodily harm. Although he had

been charged with both assault and premeditated murder

(as a capital offense), the appellant’s conviction of the

assault and the lesser degree of murder resulted in a sen-

tence of a dishonorable discharge, confinement for life

and reduction to E-1.

The evidence presented at trial disclosed that Set

Handy was working alone on a night shift in the civil

engineering service call office on the morning of 25 Sep-

tember 1989 when he was savagely murdered. The Office

of Special Investigations (OSI) immediately initiated an

investigation which included bringing in civilian experts

to make a blood spatter analysis and conduct an autopsy

on Sgt Handy to determine the cause of death. After

conducting Behavioral Analysis Interviews of approxi-

mately 150 people, they eventually narrowed the list of

possible suspects to about a dozen. The appellant was

included in that small group and finally became a suspect

after taking a polygraph test. In the post-polygraph in-

terview he denied any misconduct, but continued to sub-

mit himself to questioning and gave OSI agents consent

to search his house, car, and gym and bowling alley

lockers. After two and one-half days of interviews and

other interactions with various OSI agents, the appellant

18a

tearfully confessed he had killed Sgt Handy by re-

peatedly hitting him with an aluminium baseball bat.

Appellant first gave an oral confession which was fol-

lowed by his own typewritten version, and this was later

expanded upon in a second typewritten confession. While

still with an OSI agent he tearfully repeated his confes-

sion to a friend.

Appellant explained that his motivation for the: killing

was that he was upset with Sgt Handy for allegedly

molesting a 13-year-old girl who had a mental age of 9.

The appellant was frustrated by the fact that the local

civilian jurisdiction had apparently felt there was in-

sufficient evidence to prosecute Sgt Handy and the latter

was almost gloating that the civilian charges had been

dropped. Therefore, the appellant seems to have de-

cided to impose his own form of justice and he went to

Sgt Handy’s workplace with the intention of assaulting

Sgt Handy and then departing. Appellant further con-

fessed that, following the initial assault to Sgt Handy’s

head with the baseball bat, he escorted Sgt Handy from

the service call area to the men’s bathroom to help him

clean up the blood. When they arrived at the bathroom

area, the appellant then began repeatedly striking Sgt

Handy in the area of the head. At the conclusion of this

mortal assault the appellant went home, washed his

clothes. shoes, and the baseball bat, and began getting

his uniform ready for work that day.

Approximately three days after the appellant con-

fessed to killing Sgt Handy he recanted his confession and

described a situation in which three men, wearing stars

painted on their cheeks and earrings in their right ears,

came to his home early in the morning of 25 September.

By means of a threat to injure his children, they forced

him to drive them to where they could find Sgt Handy.

When he let them into the dark civil engineering build-

ing, he watched as two of them used a baseball bat and

another unique weapon to bludgeon Sgt Handy. Ap-

19a

pellant said he was then Ordered to take the killers to

their car and as they left him they again threatened him

with injury to his children if he reported any of this

assault for at least four weeks.

Two months after the recantation of the confession the

security police found a letter in a military van used to

transport prisoners, including the appellant. The letter

was signed by “Michael” and was addressed to the appel-

lant. In that letter Michael wrote that he was the homo-

sexual lover of Sgt Handy and that members of a homo-

Sexual cult, not the appellant, had killed Sgt Handy.

Michael also said he wou!d be writing letters and prepar-

ing a video tape about this killing which he would be

sending to various influential persons, and that ultimately

he was going to commit Suicide. A fingerprint and hand-

writing analysis of the letter could not determine who

authored it and no further information about this Missive

was discovered.

In one of the best litigated military cases we have read,

the counsel on both sides and the military judge were

extremely professional and complete in their treatment of

all the relevant issues which developed during the trial.

The most significant of those issues and the one which

received most of the attention during oral argument be-

fore us involved the letter from Michael which was dis-

covered in the security police van. This letter gained

prominence because, at the Onset, the defense disclosed

their theory of the case to be that Sgt Handy was killed

by a homosexual Sroup and that appellant confessed to

the crime only for the Purpose of protecting his children

from those killers, In addition to appellant’s sworn testi-

mony on the merits, the primary defense evidence was to

be this anonymous letter from Michael which the defense

attempted to introduce in a Pretrial session pursuant to a

motion for admission of exculpatory evidence. The denial

of the defense motion for admission of this letter serves

20a

as the focal point for appellant’s prayer for relief before

this Court.

The appellant’s argument before us, and at trial, is that

his due process right to present a defense was denied by

the improper exclusion of exculpatory evidence, the letter

from Michael. The appellant sought to introduce the

letter under the residual hearsay exceptions: Mil.R.Evid

803(24) and 804(b)(5), and also as a statement against

interest, Mil.R.Evid 804(b)(3). The military judge de-

nied the defense motion for admission because the letter

was hearsay which did “not even come close to the

threshold requirements for trustworthiness and reliability.”

He explained that trustworthiness was a prerequisite for

admission under both suggested possibilities and, lastly,

under a Mil.R.Evid 403 balancing, he found the letter

was not admissible because of the danger of possible con-

fusion that its introduction would cause the court members.

We believe the military judge was correct in his deter-

mination. A military judge has considerable discretion to

act upon preliminary questions addressing admissibility of

hearsay evidence. United States v. White, 17 M.J. 953.

956 n.5 (A.F.C.M.R. 1984); Mil.R.Evid 104(a). The

burden in that instance is clearly upon the party seeking

introduction of this evidence to prove the military judge’s

exclusion is an abuse of his discretion. United States v.

Mukes, 18 M.J. 358 (C.M.A. 1984). Similarly, the mili-

tary judge is inherently given broad authority to exercise

his discretion when applying the balancing test found in

Mil.R.Evid 403 to proffered evidence; and again the

judge’s decision will be respected upon appeal unless the

appellant can show abuse. /d. 18 M.J. at 359.

The appellant suggests the military judge’s exclusion

of this exculpatory evidence resulted from his arbitrary

and unreasonable application of the residual hearsay ex-

ception. For support appellant cites Chambers v. Missis-

sippi, 410 U.S. 284, (1973) which provides the following:

SS _TS=~— ts

21a

[Where constitutional] rights directly affecting the

ascertaining of guilt are implicated the hearsay rule

may not be applied mechanistically to defeat the ends

of justice.

Id., 410 U.S. at 320.

This quote, however, overlooks that Court’s remarks

earlier in the decision wherein the Philosophical back-

22a

Additionally, the author explained that he had mailed

letters containing incriminating materials to local news-

papers and Air Force authorities which would supposedly

exonerate the appellant. He also indicated his intention

to leave a package containing more incriminating mate-

rials at a Miami post office. OSI witnesses testified that

none of these materials were ever received. The govern-

ment’s handwriting expert eliminated all suspected au-

thors, but catgorized their analysis of appellant’s handwrit-

ing sample as only “inconclusive”.

We examined this letter and, being unaware of any

corroborating sources, conclude, as did the military judge,

there is a complete absence of any indicia of reliability.

Although there is no evidence of who authored it, all

fingers point to the appellant. The letter is a completely

self-serving document which elaborates on a sequence of

events surrounding Sgt Handy’s murder which appellant

described several days after his confession, but for which

there is no corroboration other than from the appellant.

Lastly, the timing and location of its discovery suggests

one plausible theory which is that the appellant placed

the letter in the military van, perhaps under the rear of

the driver’s seat of the vehicle, and it finally worked its

way forward on the day of its discovery. Disregarding

the appellant’s theorized authorship and delivery of this

letter, we find the military judge did not abuse his discre-

tion in not granting the appellant’s motion for its admis-

sion. Nothing presented by appellant or available to the

prosecution provided any semblance of trustworthiness to

this document which could serve as a basis for the court

members to conclude the document was an authentic,

truthful representation of how Sgt Handy was murdered.

For these reasons, the appellant was not denied his due

process rights when the military judge refused to permit

this document to be given to the court members. United

States v. White and United States v. Mukes, both supra.

23a

I

In Error II, appellant alleges that government psycho-

logical coercion rendered his waivers of Article 31, UCMJ,

rights ineffective and thus his confessions involuntary.

We remain unconvinced. It is true that from mid-day on

10 October until he confessed on mid-day 12 October, the

appellant spent his day time hours with the OSI special

agents either being questioned, polygraphed, or just wait-

ing for their next investigative step. All interviews were

conducted in a relaxed, pleasant atmosphere. The six

agents who were personally involved in this investigation

at various stages explained they advised the appellant of

his rights before every interrogation session and every

request for a search authorization. They also offered him

food and refreshments at reasonable intervals and never

indicated to him he was not free to leave. This was shown

to be true when he requested they terminate a session on

the afternoon of the 10th of October because he had to

go home to take his children to football practice. In fact,

appellant even acknowledged that the agents had advised

him of his Article 31 rights 18 times in three days. At

none of those times did he exercise his right to remain

silent, ask for an attorney, or otherwise indicate his un-

willingness to cooperate with them.

The agents described the appellant during these three

days as being cooperative and after he confessed he was

both thankful and apologetic for lying to the agents. He

also confided to them that he would have confessed on

the 11th if anyone had interviewed him that day and

asked him the question.

This issue was raised at trial and, following his receipt

of testimony, the military judge properly concluded the

appellant had voluntarily waived his Article 31 rights and

his confessions were not the result of coercion. We agree

with his decision and the detailed finding of fact in which

24a

he found the prosecution had satisfied its burden of prov-

ing that the appellant had voluntarily waived his right to

remain silent and to the assistance of an attorney. United

States v. Massengill, 30 M.J. 800, 805 (A.F.C.M.R.

1990); United States v. Jenkins, 24 M.J. 846, 848

(A.F.C.M.R. 1987), pet. den. 26 MJ. 70 (C.M.A.

1988); Mil.REvid 304(e)

It

Appellant next asserts that the military judge abused

his discretion by admitting four specific photographs of

the victim. One of these was a color photo of the victim

at the murder scene and the remainder were black and

white autopsy photos which showed the extent of the

injuries to the victim’s face. The defense had objected to

15 of the prosecution photographs and a video tape of

the crime scene on the grounds that they were unduly

prejudicial because of their graphic nature, and they were

cumulative with other photograph already admitted. The

military judge reviewed all of the materials and admitted

only eight of the 15 photographs, keeping out the remain-

ing seven and the video tape. The judge further limited

the prosecution to giving only one set of the photographs

to the court members, not a set for each member.

Military judges must properly exercise discretion when

asked to rule on the admissibility of potentially inflamma-

tory photographs and should exclude any photographs

whose probative value is outweighed by the danger of

unfair prejudice. Mil.R.Evid 403; United States v. Cole-

man, 36 C.M.R. 574 (A.B.R. 1965), pet. denied, 36

C.M.R. 541 (C.M.A. 1966) In United States v Mobley,

28 M.J. 1024 (A.F.C.M.R. 1989) this Court found the

military judge erred by admitting autopsy photographs

showing the victim’s skull In the instant case, the photo-

graphs offered and admitted by the military judge were

not only screened by him but also played a vital role in

25a

the prosecution’s presentation of its case. They were

vivid and not pleasant to examine, but under the circum-

stances it was not an abuse of discretion for the military

judge to admit them as evidence.

IV

The next assignment of error we will address concerns

multiplicity. The evidence presented at trial described a

crime scene in which the victim was attacked first in the

service call area and later in the bathroom area where he

subsequently died. This is corroborated by appellant’s

confession, as well as the locations and analysis of the

blood spatters. This fact pattern served as the basis for

the government’s theory of the case and their decision to

charge him with both premeditated murder and assault

with intent to inflict grievous bodily harm. Appellant

urges that these charges are multiplicious for both find-

ings and sentence. The appellant raised Only the issue of

findings multiplicity at trial and the military judge an-

nounced he would let the court members decide the issue.

In doing so he instructed the members that if they found

appellant had gone to see Sgt Handy with the specific

intent to kill him, the two charges would be multiplicious

for findings. However, if they believed what he said in his

confession (that he went there only to assault him and

then leave, but changed his mind after the first assault

and reinitiated it by the bathroom), the charges would

not be multiplicious. We agree this was the proper ap-

proach; the ultimate findings of the court members are

supported by facts.

On the issue of multiplicity for sentencing, although this

was not raised at trial, we find the events Surrounding the

assault and later death of Sgt Handy were not committed

as a result of a single impulse or insistent flow of events,

and therefore were not multiplicious for sentencing,

United States v. Crowe, 30 M.J. 1144, 1146 (A.F.C.M.LR.

26a

1990). See also United States v. Traeder, 32 M.J. 455

(C.M.A. 1991).

V

In a final issue, the appellant alleges it was error for

the military judge to admit Sgt Handy’s airman perform-

ance reports, his awards and decorations and a newspaper

photograph of the victim in the company of other Humane

Society members. The military judge relied on the policy

of the Victim and Witness Protection Act and United

States v. Pearson, 17 M.J. 149 (C.M.A. 1984) for au-

thority to admit this documentary evidence. It was clearly

appropriate for the government to be able to show the

impact of the loss of Sgt Handy on society, including the

Air Force.

The remaining assignments of error have been con-

sidered and found to be without merit. The findings of

guilty and the sentence are

AFFIRMED.

Senior Judge MURDOCK and Judge RIVES concur.

OFFICIAL

[SEAL]

/s/ Laura L. Green

LAURA L. GREEN

Clerk of Court

Air Force Court of Military Review

W oU. S. GOVERNMENT PRINTING OFFICE; 1993 354507 70033